At the same time as the modern idea of the state was taking shape, Hugo Grotius , Thomas Hobbes and Samuel Pufendorf formulated three distinctive foundational approaches to international order and law beyond the state. They differed in their views of obligation in the state of nature , in the extent to which they regarded these sovereign states as analogous to individuals in the state of nature, and in the effects they attributed to commerce as a driver of sociability and (...) of norm-structured interactions not dependent on an overarching state. Each built on shared Roman and sixteenth-century foundations . Section II argues: 1) that Grotius's natural law was not simply an anti-skeptical construction based on self-preservation , but continued a Roman legal tradition; 2) that Hobbes's account of natural law beyond the state was essentially prudential, not moral ; and 3) that commerce as a driver of social and moral order had a substantial and under-appreciated impact on international legal order. Each contributed to the thought of later writers such as Emer de Vattel , David Hume , and Adam Smith , and eventually to the empirical legal methodologies of Jeremy Bentham and Georg Friedrich von Martens. (shrink)

The possibility of cooperation and the stability of political order are long-standing problems. Polybius, well known for his Histories analysing the expansion of Rome and his description of the Roman constitution, also offers an intriguing social and political theory that covers ground from psycho-anthropological micro-foundations to institution-based political order, providing a genealogy of morals and political order that is best understood in game-theoretical terms. In this paper I try to give such an interpretation. Polybius’ naturalistic, proto-game theoretical views show similarities (...) with Hume, Smith and especially Hobbes’ doctrine of sovereignty by acquisition. However, Polybius is original in crucial regards, giving a motivationally plausible account of institutional and especially constitutional solutions to moral and political problems. Constitutional order, for Polybius, embodies and makes possible in the first place a kind of political reason that cannot be had individually. Polybian political theory thus offers interesting solutions to problems concerning moral motivation, collective action, and the conditions for political order, as well as the explanation and character of institutions. (shrink)

In this paper the centrality of concepts for intellectual history is stressed. Naturally, this focus on concepts requires an account of what concepts are. More contentiously, an account of how concepts are best approached by intellectual historians also requires taking a stand vis-à-vis some prevailing notions of concepts. In particular, I will direct attention to the weaknesses of the historicist theory of concepts derived from the later Wittgenstein. By contrast, I will put forward an account of conceptual innovation and change (...) in intellectual history based on a notion of concept loosely inspired by Frege. The first three parts of the paper lay out a framework for what I call “analytic contextualism,” which is then briefly illustrated with an example from the history of political thought in the fourth part. I argue that this framework should be attractive to intellectual historians for two reasons: First, Fregean concepts, due to their relative independence from context, explain long-term conceptual stability and change better than competing notions of concepts. Second, a Fregean notion of concept is better suited than its competitors to explain how concepts and conceptual innovation sometimes manage to have causal effect on institutions and social reality. To demonstrate the latter point, it will be shown that my account of concepts is consistent with, and well placed to exploit, recent philosophical advances in social ontology. (shrink)

_ Source: _Volume 38, Issue 1, pp 211 - 228 In this Reply, I argue that _pace_ Knud Haakonssen it is dubious that Adam Smith managed to ‘blow up’ Hugo Grotius’s universalist system of natural jurisprudence. Rather, Smith emerges as a closet rationalist who put forward crypto-normative universalist claims himself and found that he could not in the end improve upon Grotius’s system. Grotius was not seen by Smith as a ‘casuist’ _tout court_. I try to give an explanation for (...) the tensions introduced into Smith’s work by his incorporation of key aspects of Grotius’s theory of justice. Furthermore, I try to clarify in what regard Grotius should be seen as a novel and original thinker. Lastly, I argue in favor of according ideas and arguments their own weight, against a facile contextualism that is always in danger of falling prey to the genealogical fallacy. (shrink)

This article seeks to show the importance of Cicero for Kant by pointing out the systematic relationship between their respective views on ethics and law. Cicero was important to Kant because Cicero had already elaborated an imperative, “quasi-jural” conception of duty or obligation. Cicero had also already prefigured the distinction between ethical duties and duties of justice. The article does not establish any direct historical influence, but points out interesting systematic overlaps. The most important in the realm of ethics are (...) a universal rationalism; a rule-based normative framework of duty; and skepticism about (Cicero), or rejection of (Kant), eudaimonism. In the realm of political theory, it is the centrality of law and of property that unites both thinkers; both reject voluntarism in thinking that consensus flows from the right external laws, not the other way around, and thus creates a juridical community; and lastly, both Cicero and Kant believe that transparence, or publicity, is a key ideal that might be presupposed by both the ethical and the juridical domain. The article thus shows that both Cicero and Kant separate ethics from law, but there are indications that neither has given up the aspiration to bridge the two realms on a higher plane. This reading of Kant yields both a more Ciceronian Kant and allows us to perceive Kantian aspects of Cicero. (shrink)

Roman Law in the State of Nature offers a new interpretation of the foundations of Hugo Grotius' natural law theory. Surveying the significance of texts from classical antiquity, Benjamin Straumann argues that certain classical texts, namely Roman law and a specifically Ciceronian brand of Stoicism, were particularly influential for Grotius in the construction of his theory of natural law. The book asserts that Grotius, a humanist steeped in Roman law, had many reasons to employ Roman tradition and explains how Cicero's (...) ethics and Roman law - secular and offering a doctrine of the freedom of the high seas - were ideally suited to provide the rules for Grotius' state of nature. This fascinating new study offers historians, classicists and political theorists a fresh account of the historical background of the development of natural rights, natural law and of international legal norms as they emerged in seventeenth-century early modern Europe. (shrink)

In this article, we discuss Greek and Roman conceptions of liberty. The supposedly ‘neo-Roman’ view of liberty as non-domination is really derived from negative Greek models, we argue, while Roman authors devised an alternative understanding of liberty that rested on the equality of legal rights. In this ‘paleo-Roman’ model, as long as the law was the same for all, you were free; whether or not you participated in making the law was not a constitutive feature of liberty. In essence, this (...) Roman theory was a theory of freedom as the rule of law and the guarantee of equal rights, especially due process rights. For this Roman concept of ‘legal liberty,’ as we call it, political participation was neither necessary nor sufficient. Theorized by Cicero and historicized by Livy, the Roman understanding of freedom flourished in early-modern times, proving important to paradigmatic republican authors such as Machiavelli and Rousseau as well as to Hobbes, whose work we discuss as a helpful point of comparison. (shrink)

Name der Zeitschrift: Klio Jahrgang: 97 Heft: 1 Seiten: 353-356.

This article examines Grotius's use of a Roman tradition to establish his notion of a natural and international law in his early treatise "De iure praedae ". It is argued that "De iure praedae," on a methodological level, constituted an attempt to introduce a new doctrine of sources of law by making use of the method of classical rhetoric. On a substantive level, the treatise must be seen as growing out of a Ciceronian tradition of natural law arguments in favor (...) of just war, a tradition further enriched by Grotius with concepts taken from the property law of the Digest. These concepts afforded Grotius with the substantive framework to develop his doctrine of subjective natural rights as sketched in the hitherto unpublished early manuscript Theses LVI. An implication of this investigation of the Roman foundations of Grotius's theory of natural law is that it challenges widespread assumptions about the "positive" character of ancient liberty. (shrink)

This article examines Grotius’s use of a Roman tradition to establish his notion of a natural and international law in his early treatise De iure praedae. It is argued that De iure praedae, on a methodological level, constituted an attempt to introduce a new doctrine of sources of law by making use of the method of classical rhetoric. On a substantive level, the treatise must be seen as growing out of a Ciceronian tradition of natural law arguments in favor of (...) just war, a tradition further enriched by Grotius with concepts taken from the property law of the Digest. These concepts afforded Grotius with the substantive framework to develop his doctrine of subjective natural rights as sketched in the hitherto unpublished early manuscript Theses LVI. An implication of this investigation of the Roman foundations of Grotius’s theory of natural law is that it challenges widespread assumptions about the “positive” character of ancient liberty. (shrink)

Emergency powers are widely held to have contributed in important ways to the Roman Republic's demise and to the erection of the Principate. The debate waged during the late Republic over such powers is certainly one of the most prominent features in late Republican political thought and controversy, and it would be hard to overlook the fact that it was a debate over constitutional principle. Taking seriously the constitutional character of that debate, this article seeks to answer the question of (...) whether it makes sense to attribute to the Roman Republic something like the concept of a constitution in the first place. It is argued that on the level of political thought the term 'constitution' can indeed profitably and accurately be applied to a set of rules that were thought both to be more entrenched and to be more important than other rules. Thus it makes perfect sense to speak of a Roman Republican constitution, without scare quotes, at least in the realm of political thought. Furthermore it is suggested that it makes sense to speak of a Roman republican constitution in the realm of institutional reality as well since political and more specifically constitutional thought informed and influenced some of the republican institutions and their functioning to a considerable extent. (shrink)

My Article seeks to explore a few antecedents of the idea that sovereignty may be encumbered with some obligations and duties vis-à-vis non-sovereigns and even strangers. Theories about limitations on sovereignty and obligations on the part of sovereigns often arose out of the fertile conceptual ground of Roman private law, in particular rules of property law governing usufruct and rules of contract law, such as those governing mandate. Early modern thinkers, especially Hugo Grotius, built on these ideas and, in addition, (...) developed an account of moral and legal obligations arising, independently of God’s will, from a universal human nature. Building on Cicero, Grotius was among the first early-modern thinkers to elaborate the distinction between “perfect” duties of justice and “imperfect” duties of beneficence, an important idea that had wide influence through the work of Emer de Vattel. The Article closes by offering a few observations on the trajectories within which Professor Benvenisti’s concept of “sovereigns as trustees of humanity” could be situated. (shrink)

Roman property law and Roman contract law as well as the property centered Roman ethics put forth by Cicero in several of his works were the traditions Grotius drew upon in developing his natural rights system. While both the medieval just war tradition and Grotius's immediate political context deserve scholarly attention and constitute important influences on Grotius's natural law tenets, it is a Roman tradition of subjective legal remedies and of just war which lays claim to a foundational role with (...) regard to his conception of subjective natural rights. Grotius made use of Roman law and Roman ethics in order to submit a normative case for a rights-based just war in the East Indies. His conception of a law of nature was originally conceived to apply a theory of compensatory justice to the high seas of Southeast Asia, envisaged as a natural state lacking political authority. Eventually, however, this argument was to reveal its anti-absolutist implications, and contributed—by virtue of its applicability to individuals, private entities and commonwealths alike—to the emergence of a rights-based constitutionalism. This article discusses Grotius's early treatise De iure praedae commentarius and its offshoot Mare liberum, which already contained an inchoate version of subjective natural rights, as well as the elaborate natural rights doctrine which can be found in Grotius's early Theses LVI and in the Defensio capitis quinti maris liberi, a defense of the fifth chapter of Mare liberum, written around 1615 and directed against the Scottish jurist William Welwod's attack on Mare liberum. (shrink)