The Grotian Tradition, Grotian Moment, and Decolonization: A twail Perspective

The times of Grotius were a period of transition from a feudal to a capitalist order in Europe, ushering in new thinking on subjects such as human nature, commerce, state, war, and colonialism. In articulating his views, Grotius was not seeking to shape the law of nations for all times but to recast it in order to respond to the problems encountered by Holland (or the United Provinces), and more generally European nations, in the ongoing transition. In the backdrop of a brief discussion of the ‘Grotian tradition’, this article distinguishes different uses of the term ‘Grotian Moment’ and contends that ideally the term should be reserved for capturing developments that profoundly impact both the ‘logic of territory’ and the ‘logic of capital’ with the law of nations playing a significant role. While decolonization saw the expansion of the sovereign state system and certainly was a setback to the global accumulation of capital, the law of nations did not pro-actively support that process. Furthermore, efforts by postcolonial nations to bring about the transformation of the colonial legal order did not succeed making less meaningful the characterization of the decolonization process as a ‘Grotian Moment’.

The Right of Sovereignty

Bodin’s most important theoretical achievement was to conceptualize sovereignty as an indivisible and portable bundle of legal rights, which he collectively designated ius summi imperii. Sovereignty, on this account, was modelled on the creditor’s in personam right arising from a debt obligation in civil law. Just as a creditor has a right to an actionable remedy enforcing the debtor’s performance of contractual obligations, so too does a sovereign state have a legal right to enforce acts of allegiance owed by its subjects and, in the case of treaty obligations, acts of fidelity owed by foreign obligors. Applying a doctrine of medieval legal science, Bodin traced the source of that sovereign right to the law of nations [ius gentium]. While sovereigns may be exempt from their own legislation [legibus soluti], they always remain legally bound to observe the ius gentium and exercise sovereign rights in accordance with its principles.

Catholic Political Thought and Calvinist Ecclesiology in Samuel Rutherford's Lex, Rex (1644)

This article presents a significant reinterpretation of an essential text in Scottish (and British) political thought, Samuel Rutherford's Lex, Rex, by analyzing its relationship with Catholic scholasticism. While scholars have observed Rutherford's use of Catholic authors, there has been no sustained analysis of how Rutherford strategically applied this intellectual tradition to the religious and political context of the British civil wars. Ideas about human liberty, the law of nations, and popular sovereignty that were developed by Catholic scholastics in the School of Salamanca allowed Rutherford to defend limited monarchy and fulfill an ecclesiological purpose in seventeenth-century Britain. He, and the majority of his Covenanter contemporaries, believed in jure divino presbyterianism: scripture mandated that elders and synods, not bishops, should rule the church. To ensure a presbyterian settlement, Rutherford needed to disprove royalist absolutists who claimed that presbyterianism threatened absolute monarchy (the divinely ordained form of civil government) by limiting royal supremacy over the church. By building on Catholic scholastic political ideas, Rutherford was able to argue that human beings could change the form of civil government and that absolute monarchy was not required by God. Ironically, to make a civil state safe for presbyterianism, Rutherford resorted to Catholic scholastics rather than those of his own confessional tradition. This analysis urges reconsideration of not only the porosity of traditional confessional boundaries in early modern political thought but the respective positions of both Calvinism and Catholicism in shaping the political ideas underlying the British revolutions of the mid-seventeenth century.

Author's Response: Some Thoughts on War Prisons, the Law of Nations, and Historical Comparisons

It is an honour and a pleasure to be able to converse with four such generous and thoughtful readers. I am relieved that Guillaume Calafat agrees with me, rather than with Julien Duvivier, that prisoners of war are, as the saying goes, good to think with! I also appreciate their suggestions for future research avenues, which I think open up a number of exciting possibilities. In order to give those readers who have not read the book a sense of what they will get out of it, my response will focus on issues on chronology, historiography, and methodology.