The purpose of the present study is the understanding of Gentili's position on the law of the sea as expressed in his classic De iure belli . The key constitutive elements turn out to be: 1) the idea of the sea as 'res communis' to all mankind, which amounts to the concept of 'freedom of the sea'; 2) 'jurisdiction' of the coastal state on the adjacent sea, even on the high seas, in order to police crime and prevent/punish piracy. As (...) such these two key elements, if taken in isolation, are rooted in the civil law tradition, but their true meaning can only be captured by placing them in the intellectual framework of which they constitute an integral part. Firstly, the epistemic structure of discourse hinges on the new science of natural jurisprudence, as applied to the subject of 'ius gentium bellicum'; secondly, the constituent theoretical languages emanate from a distinctive combination of civil law, scholastic-theological and humanist traditions. This procedure enables us to highlight the strikingly original and distinctly modern traits of Gentili's perspective on the law of the sea, which emerges as a corollary of his project of international/global order. A project that is based on the crucial notion of 'respublica magna' of mankind, a notion encompassing the two notions of 'freedom' and 'jurisdiction' that constitute and define the legal regime of the sea.The Stoic humanist notion of universal human society as 'corpus unum' implies, first of all, 'freedom of intercourse', or 'ius communicationis', to start from 'free passage' and 'freedom of commerce'. It is in the context of his argument about these basic freedoms that Gentili is finally led to discuss the subject of the 'law of the sea'. But, not only the concept of 'res communis', or 'freedom of use', but also the concept of 'jurisdiction', or 'protection', are strictly related to the same foundational concept of 'respublica magna'. This is a crucial characteristic of Gentili's approach to world order that is proved by reference to two cardinal points of his new 'cosmopolitan justice': 1) the 'international right to punish', as exemplified by the legitimacy of the wars of 'humanitarian intervention' and of the wars in support of the 'common law of mankind'; 2) the 'occupation of vacant land', which again underlines the relevance of the principle of 'jurisdiction' by striking a balance between the principle of 'free use' of nature and the 'jurisdiction' of the local ruler.Such a reconstruction definitely rejects the traditional image of Gentili as a supporter of 'maritime protectionism', on the ground of his Advocatio Hispanica published posthumously in 1613 and containing his pleadings as Spanish advocate before the Court of Admiralty. The guiding assumption here is that the book is strictly of a forensic character and as such devoid of any coherent theoretical substance. To the contrary, in his De iure belli, far from anticipating the English position in favour of 'mare clausum', Gentili tends to anticipate the essentials of Grotius' position, especially at the level of the ethic of the 'modern cosmopolis' and the related theme of colonial empire. On this very plane of discourse, Gentili's thinking transcends the so-called battle of the books and emerges as especially significant in illuminating the wider and deeper intellectual currents that contributed to the development of what were to become basic standard positions of modern international theory. (shrink)

This paper explores the presence of late medieval ius commune in Grotius’s thought on the use of force in internal strife and war, based on De iure belli ac pacis. To this end, it examines Grotius’s use of ius commune sources, and considers some similar sources, which he does not actually cite, but which relate to his discussion. By clarifying Grotius’s selection and use of ius commune sources, the paper intends to contribute to the achievement of a (...) double aim: firstly, to determine the place of rebellion and civil war in De iure belli ac pacis, especially in relation to war; and, secondly, to assess Grotius’s approach to the two former issues, particularly with regard to the criteria by which a distinction between rebellion and civil war can be drawn, and to the effects of this distinction. (shrink)

The idea that a simple unilateral promise, until it is accepted, is not binding according to natural law is defended by Grotius in his major work with an argumentation drawn directly from Lessius, an important source of inspiration for the Dutch jurist, who in turn solves the dispute rooted in the tradition of ius commune. This article aims to reconstruct, in its essential stages, an itinerary through the main positions of medieval and early modern civil and canon lawyers about (...) this controversial issue. These sources constitute the background of early modern scholastics and Grotius as well. The paper analyses some of the principal texts of both bodies of law, highlighting arguments and adding new findings. Notably it is shown that Lessius’s and Grotius’s statements represent a turning point, as far as they react against the resumption of the theory of the binding force of simple unilateral promises in the sixteenth century. With Lessius and Grotius, on the other hand, acceptance became a necessary requirement for every transfer of rights and duties to be enforceable. (shrink)

In his Inleidinge tot de Hollandsche Rechts-geleerdheid, Hugo Grotius wrote an accessible introductory overview of Hollandic law, in which he combined insights from the learned law (ius commune) with the particular law of Holland. The Inleidinge was read by generations of Dutch law students, and would thus become very influential in the Roman-Dutch tradition. This contribution studies how the topic of representation, especially in a business context, was treated in Grotius’s Inleidinge. On the basis of an analysis of the (...) Justinianic Corpus iuris, the medieval ius commune tradition and – especially – early modern scholarship from the Low Countries, it is argued that Grotius’s Inleidinge by and large followed the communis opinio among the learned scholars, although on one important point – namely the acquisition by a third party of a claim on the basis of a stipulatio alteri – Grotius went beyond that communis opinio and, thus, opened the way for a gradual wider legal acceptance of active direct representation. (shrink)

In the Medieval period, Roman law and canon law formed ius commune or the common European law. The similarity between Roman and canon law was that they used the same methods and the difference was that they relied on different authoritative texts. In their works canonists and civilists combined the ancient Greek achievements in philosophy with the Roman achievements in the field of law. Canonists were the first who carried out research on the distinctions between various legal sources and (...) systematized them according to a hierarchical order. The Medieval civilists sought solutions in canon law for a large number of problems that Justinian’s Codification did not hinge on or did it only superficially. Solutions offered by canon law were accepted not only in the civil law of Continental Europe, but also in the English law. (shrink)

Este artículo estudia críticamente el concepto de Ius Constitutionale Commune Latinoamericanum como fenómeno de judicialización de la política a nivel regional. Partiendo de la afirmación de que el derecho constitucional es político, se analizan algunos rasgos del ICCAL como la ideología que lo inspira, la teoría en que se apoya el concepto y el arreglo institucional que lo sostiene, para problematizar su carácter "común". Bajo el entendido que cualquier proyecto constitucional está indisolublemente ligado a un diseño institucional que lo (...) lleva a cabo, se critica la apuesta por un modelo juricentrista, anclado en la interpretación que la Corte Interamericana de Derechos Humanos hace de los derechos reconocidos como universales, para proponer un sistema basado en procedimientos deliberativos e igualitarios que fortalezcan la democratización de la región. This article critically examines the concept of Ius Constitutionale Commune Latinoamericanum as a phenomenon of judicialization of politics at the regional level. To problematize its "common" character and based on the assertion that constitutional law is political, some features of the ICCAL are analyzed: the ideology that inspires it, the theory in which the concept is supported and the institutional arrangement that sustains it. Under the understanding that every constitutional project is inextricably linked to an institutional design that carries it out, the commitment to a jury-centered model, anchored in the interpretation that the Inter-American Court of Human Rights makes of the rights recognized as universal is criticized. Proposing, in contrast, a system based on deliberative and egalitarian procedures that strengthen the democratization of the region. (shrink)

Además del desafío propiamente jurídico que plantean la interamericanización del derecho y los proyectos que propugnan por un constitucionalismo transformador de las desigualdades sociales y políticas que aquejan a los países de la región, se plantean retos de naturaleza política. Sobresalen la inclusión social y la debida representación política. Dentro de los retos filosóficos se encuentra la depuración de conceptos que sofistiquen y precisen las categorías con las cuales describimos nuevos fenómenos en América Latina.

In lieu of an abstract, here is a brief excerpt of the content:Ius Gentium as Publicly Articulated Moral ScienceMatthew K. MinerdAmong the various types of law discussed in St. Thomas's theological "treatise on law"—questions 90–108 of Summa theologia [ST] I-II—the classification known as the "law of nations" (ius gentium) holds an ambiguous epistemological position. Marking a kind of halfway point between the natural law and civil law, it seems to straddle both domains. In fact, in a particularly important text dedicated (...) to this topic in the ST (I-II, q. 95, a. 4), Aquinas classes the ius gentium as being closely connected to the natural law, though in a way that is somewhat derivative, not as immediately flowing from human nature (especially in its animality) as does the natural law, but also not as marked by human contingency as is human civil law.As was recently discussed in a well-documented and insightful article by Barrett H. Turner in The Thomist, there have historically been two main lines of Thomist interpretation concerning the exact character of the "law of nations." Very broadly stated, what he refers to as the "Salamancan" line, indebted to Francisco de Vitoria, "interprets Thomas's doctrine of the ius gentium as a body of universal positive institutions (that is, specifications, determinationes) added to the natural law by agreement of the human race."1 [End Page 1043] This position, which would be common for several centuries among members of the Thomist school, would locate the law of nations essentially in the domain of nearly universally adopted customs and institutions, not strictly deduced from the natural law, but rather grounded on "the quasi-political authority of the entire human race, which promulgates the ius gentium by customs whose utility for attaining the ends of the natural law under a certain set of social conditions is easily recognized by rational creatures."2Turner calls the other line of thought "Maritain's Neo-Thomist Line,"3 an outlook that would be shared with various nuances by thinkers like Jean-Marie Aubert, Yves Simon, Marie-Michel Labourdette, John Finnis, and others. Setting aside my qualms about his appellation "neo-Thomist," which does more to obscure than to illumine (for it covers a host of Thomistic figures who have significantly different views on what constitutes "Thomism"), Turner does fairly lay out the major lines of Jacques Maritain's position, which is most directly articulated in Man and the State and La loi naturelle ou loi non-écrite.4 Basing himself on his particular view of knowledge of the natural law through connaturality,5 Maritain contrasted this sort of moral cognition with that which develops in the line of conceptual articulation, thus having a different "gnoseological" character from our knowledge of the natural law, while nonetheless still sharing the same "ontological" foundation. Such conceptually articulated law would be the ius gentium.Rather than add my voice to the dialectic of the various thinkers arrayed by Turner into the two aforementioned camps, I would like to propose a slightly different approach to the "moral epistemology of the law of nations," though one that I believe lies in line with the best aspects of Maritain's approach. Continuing a series of reflections that I have undertaken [End Page 1044] concerning moral epistemology during the past few years,6 I propose that it is most helpful to consider the "law of nations" as being a form of reasoning pertaining to what Scholastic vocabulary would refer to as "moral science,"7 namely discursive philosophical reasoning concerning the essences, properties, effects, and various other essential relationships that belong to a human acts, morally considered (the principal subject of moral philosophy), along with other subjects that are studied in relation to this principal subject (e.g., the principles of human acts, most particularly, the structure of human acts and the moral virtues). Moral science is the activity of reasoning that can be undertaken by knowing agents living together in community, seeking to discursively articulate and explain the moral truth that forms the essential basis for the contingent determinations that will then be codified in particular civil laws, the latter of which are not concerned with questions like "what are the ultimate foundations for property... (shrink)

Some legal historians are startled by the fact that Grotius was able to develop a new theory of res communes omnium and mare liberum by using antique ideas whereas these ideas were known in philosophy and jurisprudence throughout the Middle Ages. This contribution shows that Grotius's theory of res communes omnium was innovative only because he developed a new concept of ownership and placed it within a new framework of ius naturale. Both new concepts, ownership and ius naturale, had their (...) predecessors in medieval theology and the jurisprudence of the Spanish Scholastics, but it was Grotius who merged them to a consistent new theory. This theory of res communes also enabled him to reconcile it with both the Roman legal sources and with contemporary practical needs. (shrink)

Gaëlle Demelemestre | : On présente généralement Francisco de Vitoria, Domingo de Soto et Domingo Bañez comme des auteurs de la Seconde Scolastique, et plus précisément de sa première vague. Il est de ce fait supposé que leurs positions intellectuelles sont suffisamment similaires pour que l’on puisse les traiter ensemble, et qu’elles soient exposées et complétées les unes par les autres. Des personnalités d’une telle envergure peuvent-elles cependant réellement avoir fondu leurs objet et visée propres en une thèse commune (...) qu’elles auraient perpétuée? C’est la question que nous nous poserons en comparant précisément la façon dont ils comprennent les notions de dominium et de ius. | : Francisco de Vitoria, Domingo de Soto and Domingo Bañez are generally presented as authors of the Second Scholastic, and more precisely of his first wave. It is thereby assumed that their intellectual positions are sufficiently similar to be treated together, and exposed and completed the one by the others. However, such personalities could they really have flow together their own object and aim in one same position that they have perpetuated? That’s the question we will ask in comparing precisely their meaning of the notions of dominium and ius. (shrink)

Resumen: El artículo examina dos conceptos centrales en la doctrina internacional de Vitoria: la idea de orbe como comunidad universal de todos los hombres y de todos los pueblos unidos por el vínculo de la común naturaleza humana, y el ius gentium como Derecho universal de la humanidad que rige en todo el orbe. El trabajo destaca el equilibrio entre tradición (universalismo cosmopolita de raíces estoicas y cristianas y iusnaturalismo clásico) e innovación (ideas de derechos naturales, de igualdad e independencia (...) de todos los pueblos y concepción de la comunidad internacional como una comunidad jurídica) y la antropología no individualista que subyace a la doctrina internacional de Vitoria. Abstract: The article analyzes two central concepts in the international doctrine of Vitoria: the idea of the orb as a universal community of all human beings and of all peoples united by the bond of common human nature, and ius gentium as the universal law of humanity rules around the world. The work highlights the balance between tradition (cosmopolitan universalism of Stoic and Christian roots and classical natural ius) and innovation (ideas of natural rights, equality and independence of all peoples and conception of the international community as a legal community) and the non-individualistic anthropology that underlies the international doctrine of Vitoria. (shrink)

A theory of transgenerational justice ought to be grounded on intuitions shared in the human community. One is parental responsibility, postulating duties between the generating and the generated in a realm of proximity. To achieve greater political abstraction, it is necessary to deny self-sufficiency to such primary transgenerational level, arguing for its structural need to rely on external sources distant in space and time. A critical cross-examining of concepts relevant to justify the leap from proximity to distance follows (community and (...) society, equity and equality, singularity and repetition). The outcome is a notion of ius as object of transgenerational quest, including future generations only at the price of avoiding contractualist understandings of bonds between living and non-living entities. (shrink)

There are several reasons, according to which it is worth analyzing European administrative law. First, this is a rather new branch of law. Second, the European administrative law is treated in different countries from different legal traditions positions, consequently, any effort to unify the approach to it can provide a basis for a unified European administrative law model. Third, there are no works dedicated to the analysis of the phenomenon of the European administrative law in Lithuania. Therefore, this article deals (...) with the concepts of the European administrative law. It is stated that the comprehensive image of the European administrative law reveals three European administrative law concepts. The first concept of the European administrative law characterizes it as the European Union (hereinafter – EU) administrative law, the validity of boundaries of which can be based on three aspects – functional, institutional and procedural. The second concept of the European administrative law identifies it as the law of administrative cooperation., whereas the third concept allows the European administrative law to be seen as the law common to various public administrations of European countries – ius commune. The article focuses on the analysis of the above-mentioned three approaches and the EU set of administrative procedures as an instrument to promote the development of the EU administrative law. The author comes to the conclusion that the concept of the ‘European Administrative Law’ is broader than the concept of the ‘EU Administrative Law’. The European administrative law can be perceived not only as a part of law that establishes the EU administration’s administrative legal status, its’ activity principles, forms and methods, but also as a law of administrative cooperation between states, governmental and non-governmental organizations and various corporations, based on a wide range of multilateral treaties or conventions, which cross the limits of the EU. Moreover, the European administrative law can be understood as a law with common concepts, general principles characteristic to different European countries’ public administrations as well as a science, with the help of which diverse administrative legal systems of various countries could be compared. Taking into account the content of various working documents, the author draws the conclusion that for the further development of the EU administrative law the establishment of uniform operating rules for the EU administration in its’ relations with the society is of exceptional importance. There are a number of important reasons to develop the Law on administrative procedure of the EU. First, it is generally recognized that the EU needs common binding legislation that sets out clear operating rules of the EU administration in its’ relations with legal and natural persons, and that would increase the transparency of the EU administration and its’ accessibility to citizens. Second, the drafting of the law on administrative procedure of the EU lies in the legal framework as well; the importance of the article 298 of the Treaty of the Functioning of the European Union, the articles 41 and 42 of the Charter of Fundamental Rights of the EU as well as “soft” law (i.e. codes of good administrative behavior) are obvious here. (shrink)

Throughout the nineteenth century, significant transformations took place in the understanding of Western homosexuality, shifting from the domain of criminal law to that of medical science. This article explores the role of European legal thought in laying the groundwork for such changes, particularly starting from the mid-eighteenth century. Examining the contributions of the Roman jurist Filippo Maria Renazzi (1745–1808), this research emphasizes his role among the thinkers who lived through the transition from the European ius commune tradition to the (...) era of criminal codes. Renazzi, a conservative university professor in papal Rome, not unfamiliar with Enlightenment discussions, penned a successful criminal treatise in Latin between 1773 and 1786. His expertise was also in demand during the subsequent development of the criminal code for the Napoleonic Kingdom of Italy. By focusing on the figure of Renazzi, still not extensively studied, this article attempts to shed light on the transition towards the general decriminalization of non-reproductive carnal offenses, including sodomy. In the new penal code project, only acts committed against the will of others and public order remained generically condemned. This underscored the indifference of criminal law towards penalizing behavior that medicine would subsequently come to recognize as an inherent identity. (shrink)

Current International Criminal Law (ICL) suffers from at least four fairly serious theoretical shortcomings. First, as a starting point, the concept and meaning of ICL in its different variations must be clarified (‘the concept and meaning issue’). Second, the question of whether and how punitive power can exist at the supranational level without a sovereign (‘the ius puniendi issue’) must be answered in a satisfactory manner. Third, the overall function or purpose of ICL as opposed to national criminal law (‘the (...) overall function issue’) must be more convincingly explained. Fourth, the purposes of punishment in ICL, as opposed to the traditional purposes discussed in national criminal law, must be elaborated (‘the purposes of punishment issue’). There is a partly vertical and partly horizontal relationship between these issues. It is, for example, of course impossible to reflect upon ius puniendi, overall function and purposes of punishment without having clarified the concept of ICL in the first place. Also, a treatment of overall function and purposes of punishment seems to be predicated on the justification of the ius puniendi. Indeed, the lack of a satisfactory answer to the ius puniendi issue is maybe the most important theoretical weakness of current ICL. This article therefore aims to demonstrate that a supranational ius puniendi can be inferred from a combination of the incipient supranationality of the world order (understood normatively as an order of values) and the concept of a world society composed of world citizens whose law—the ‘world citizen law’ (‘Weltbürgerrecht’)—is derived from universal, indivisible and interculturally recognized human rights predicated upon a Kantian concept of human dignity. The incipient world order and the world society are represented by the international community (to be understood as a community of values) which becomes the holder of the ius puniendi. (shrink)

Due to its enormous importance, Grotius’s contract doctrine has been extensively investigated by legal historians. This paper seeks to enhance scholarly understanding of this topic by looking at commentaries on De jure belli ac pacis written by German theologians and jurists in the second half of the seventeenth century. The paper focuses on comments concerning promises: the criteria for promises that are binding under natural law; the foundations of the obligation to keep promises; error and duress; and immoral promises. Grotius’s (...) contract doctrine rested on a mélange of sources, both theological and juridical, which were not always consistent. Commentators sought to harmonise them by looking at them from different perspectives: some comments were mainly based on interpretations of ius commune texts, whereas others reflected a moral theological approach. The results drew distinctions between law and moral theology that contributed to the fragmentation of Grotius’s synthesis. (shrink)

Dieses Buch versucht, die institutionelle Wirkung der Schuler K. C. F. Krauses grosstenteils anhand unveroffentlichter Handschriften zu rekonstruieren und den philosophie- und padagogikgeschichtlichen Kontext zu erhellen. Eingehend behandelt werden die ersten deutschen Philosophiekongresse, die von theistischen (I. H. Fichte) bzw. linkshegelianischen (L. Noack, K. Nauwerck) Richtungen und von Krauseanhangern veranstaltet wurden. Die Untersuchung widmet der engen Beziehung zwischen Frobel und Krause und dem daraus entspringenden 'Krause-Frobelianismus' besondere Aufmerksamkeit: Sie zeigt, inwiefern Krauses Philosophie mit ihren Tendenzen zum Praktischwerden und zum 'menschheitlichen' (...) Europaismus das Fundament der damals einflussreichen Frobel'schen Padagogik bildet. - Nach der bereits vorliegenden Biographie K. C. F. Krauses (SuE II,22) ist dies der zweite Band, den Urena zu diesem wichtigen Philosophen vorlegt.'Urena verwertet fur seine Arbeit eine Fulle bisher unveroffentlichten Materials aus dem Nachlass Frobels und Krauses sowie einiger Krause-Schuler. Sein solide gearbeitetes Werk ist ein ausserst wertvoller Beitrag zur deutschen Padagogikgeschichte des 19. Jahrhunderts.'K. Seidel, Geschichte, Politik und ihre Didaktik'Ein beeindruckendes Stuck Wissenschaftsgeschichte [.] Urenas bedeutende wissenschaftshistorische Studie ist von stupender Belesenheit und beeindruckender Materialfulle und verliert doch nie die Hauptlinien der Untersuchung aus dem Auge. [.] Allen an Philosophie und Padagogik des 19. Jahrhunderts und den in ihm zum Teil erst entwickelten Verbreitungsmedien [.] Interessierten sei die vorliegende Studie eindringlich empfohlen.' Alfred Langewand, Zeitschrift fur padagogische Historiographie'Urena gelingt es in seiner Arbeit in ausgezeichneter Weise, diese [.] interessante Biographie Krauses herauszuarbeiten und jene charakteristischen Momente hervorzuheben, die fur das Verstandnis der Philosophie Krauses wesentlich sind.'Heinz Krumpel, Ius Commune. Zeitschrift fur Europaische Rechtsgeschichte'Krause [.] a trouve en Espagne [.] un biographe a sa mesure [.] Son influence en Europe fut important et il faudrait peut etre reediter quelques textes afin que Krause [.] retrouve aujourd'hui une partie de l'echo qu'il merite. Ce tres bon ouvrage y contribuera grandement.' Dominique Bourel, Dix-Huitieme Siecle, 'Urena has performed a massiv task [.] A valuable contribution both to the subsequent reception of Kantian philosophy and to the international ramifications of German philosophy of the Classical period.' The Year's Work in Modern Language Studie. (shrink)

This article is concerned with the role of experientia in medieval law. This could take a number of forms, three of which are treated by way of example. In the first part of the essay, the author discusses how experience first came to serve as a source for the creation and legitimisation of new law since Late Antiquity. Henceforth, it became an important principle within Canon Law that served not only to create legal regulations supplementary to traditional law but also (...) to overwrite and replace it. The second part of the essay is concerned with the role of expert reports (consilia) by men learned in the ius commune which were requested to help rule cases under local law. Being dispersed in collections after their use in court, consilia made a significant impact on common and local law. In the final section the author discusses the use of expert witnesses (from areas as diverse as medicine, agriculture, the arts and crafts etc.). Expert opinions were recognised by court as high-value evidence. (shrink)

Legal humanism has become deeply entrenched in most modern works on European legal history from the 17th century onwards and has been accepted with such blind faith by many modern scholars that few have challenged it. As a result, it has been used to substantiate larger claims about the deathof Roman law, the separation between the golden age of a pan-European medieval ius commune and the fragmented reception of Roman law into the nation states of Europe, and the relevance (...) of 'dogmatic' Roman law as opposed to 'antiquarian' Roman law.Now, the traditional grand narratives of European legal history have begun to be questioned, to the extend that the nature and legacy of legal humanism now deserve closer scrutiny. Building on the groundbreaking work by Douglas Osler, who has been critical of the traditional narratives, this volumeinterrogates the orthodox views regarding legal humanism and its legacy. Fundamentally reassessing the nature and impact of legal humanism on the narratives of European legal history, this volume brings together the foremost international experts in related fields of legal and intellectual history to debate the central issues. (shrink)

In 1245 Canon Law reaches an apex. A Lawyer-Pope Innocent IV proclaims at the Œcumenical Council of Lyons the prestige of Canon Law and his professors. Canon Law is perceived as a new and sometimes controversial ecclesiastical science of power. This new status can be explained by the growth of the ius commune in Italian universities and the rivalries between Roman Law, Canon Law and theology. Innocent IV promotes the figure of the ecclesiastical judge. He also delineates an ecclesiology (...) where the world would be united by an universal religion of Natural Law. (shrink)

En reseña de:Wim Decock, Theologians and Contract Law. The moraln transformation of the ius commune (ca. 1500-1650), Martinus-Nijhoff Publishers, Leiden-Boston, 2013.

El Derecho Internacional Humanitario (DIH) nació en Latinoamérica. Ante la creencia imprecisa de que el DIH surgió tras la batalla de Solferino (24 de junio de 1864), como consecuencia de la experiencia de Henry Dunant, se refuta y demuestra que tal aseveración carece de sustentación empírica y científica porque desconoce la importancia histórica y jurídica del Tratado de Regularización de la Guerra y el Tratado de Armisticio suscrito entre la República de Colombia (presidida por El Libertador Simón Bolívar) y el (...) Reino de España (representada por el Mariscal Pablo Morillo) en Trujillo, Venezuela, el 27 de noviembre de 1820, que culminó con el encuentro de ambos líderes combatientes en la histórica población de Santa Ana de Trujillo, llamada, desde entonces, "Morada de Paz" o "Cuna de la Diplomacia Americana". Se destaca en el texto que tales Pactos Internacionales, denominados los "Tratados de Trujillo", fueron aplicados, a modo de precedente jurídico y humanitario, en las diversas Capitulaciones y Acuerdos de Paz que van desde 1820 a 1830 durante el curso de la Lucha de Emancipación frente al imperio español, dando nacimiento al "Derecho de la Guerra" moderno sometido a los sentimientos de piedad, justicia y humanidad. La obra destaca que, a contrario sensu de la opinión mayoritaria, el DIH se configuró en Latinoamérica durante la Guerra de Independencia que lideraron El Libertador Simón Bolívar, El Gran Mariscal de Ayacucho Antonio José de Sucre y los Padres Libertadores de la Gran Colombia (antes integrada por los ahora Estados de Bolivia, Colombia, Ecuador, Panamá, Perú y Venezuela) frente al Reino de España, entre 1810 y 1830. La aseveración relacionada con que el DIH nación en dicho contexto local (y no en Europa), tiene como soporte legal, jurídico o dogmático un enorme cúmulo de instrumentos bilaterales y multilaterales (Acuerdos, Capitulaciones, Amnistías y Tratados) que sentaron las bases del "Derecho de la Guerra" o de la humanización del acto violento la guerra a través de su sometimiento a las reglas jurídicas como mecanismo para contener la venganza, la aniquilación y la destrucción de la vida y los bienes del enemigo en el conflicto bélico. Se sostiene que con dicha regulación, se generó y consolidó el Corpus Iuris Pro Humanitatis, para, en medio de la guerra sometida, a la legalidad y el sentido de justicia, resaltar y proteger la dignidad humana de los combatientes, heridos, enfermos, prisioneros de guerra, población civil (no beligerante), los bienes ajenos a las operaciones militares y lograr preservar la paz como valores y principios superiores de la humanidad. Para confirmarlo, vale la cita textual de lo afirmado por Simón Bolívar, El Libertador, cuando le escribió entonces a Pablo Morillo que ambos Estados estaban compelidos a suscribir "...un tratado verdaderamente santo, que regularice la guerra de horrores y crímenes que hasta ahora ha inundado de lágrimas y sangre a Colombia, y que sea un monumento entre las naciones más cultas, de civilización, liberalidad y filantropía..." (Simón Bolívar: Carta a Pablo Morillo, Cuartel General de Carache, 3 de noviembre de 1820). -/- Contenido del libro: Parte Primera. Elementos teóricos y normativos. Clásicos que forjaron el ius in bello hispano fuente jurídica primaria del ius in bello hispano-grancolombiano y del DIH contemporáneo: Capítulo I. Aportes de la edad antigua al ius in bello en general. Capítulo II. La Edad media y la Edad moderna: sus aportes en la definición de la «guerra justa» como teoría influyente en la fundamentación del ius in bello hispano. Parte Segunda. La Escuela de Salamanca y su influencia en el desarrollo del derecho internacional y el ius in bello hispano: Capítulo I. Sobre la Escuela de Salamanca y la ’guerra justa‘. Capítulo II. Otros referentes teóricos y regulatorios europeos y americanos relacionados con la conformación del ius in bello. Capítulo III. La edad contemporánea, el ius in bello y los DDHH. Parte Tercera. Acuerdos humanitarios entre la corona española y los beligerantes independentistas de Venezuela y la Nueva Granada antes de los tratados de Trujillo (1812/1819). Capítulo II. El trienio de los acuerdos humanitarios hispanograncolombianos durante el trienio liberal español: los tratados de Trujillo de 1820 y su aporte a la configuración del ius un bello hispano-grancolombiano. Parte Cuarta. El trienio de los acuerdos humanitarios hispanograncolombianos durante el trienio liberal español: otros acuerdos humanitarios convencionales para la regulación y humanización de la guerra posteriores a los tratados de Trujillo: Capítulo I. Las capitulaciones hispano-grancolombianas en Venezuela despues de los tratados de Trujillo. Capítulo II. Acuerdos humanitarios convencionales iberoamericanos en la campaña libertadora del sur del continente americano. Parte Quinta. Otros referentes normativos y conceptuales posteriores a los tratados de Trujillo y el impacto del ius in bello hispano-granclombiano en los principios basicos del DIH de las convenciones de Ginebra: Capítulo I. Referentes conceptuales y jurídicos posteriores a los tratados de Trujillo, que influyeron en la conformación del derecho humanitario de la guerra y del DIH contemporáneo. Capítulo II. La influencia notoria del ius in bello hispano-grancolombiano sobre la configuración de los principios básicos del DIH vigente. Capítulo III. Reflexiones sobre la odiosidad de la guerra y un proyecto de futuro para Iberoamérica y la familia humana. (shrink)

This is the second of four volumes in the CARE-ing for Integral Development series, focused on CARE: Community activation, Awakening consciousness, innovation driven institutionalized Research and transformative Education. In this book, the author focuses on ways and means of developing, in an explicitly integral way, a particular organization or society, one in relation to another, locally-globally, building on prior, local community activation. He draws on two decades of experience and illustrates how such an awakening of integral consciousness can run alongside (...) innovation driven institutionalized research and transformative education, as well as community activation, at undergraduate and post-graduate levels. In the process he addresses such topics as how to embed development in a particular society locally, how in relation to the rest of the world globally, as well as how to consciously evolve as an individual, organization or society, as such, from one particular developmental perspective - southern (relational), eastern (renewal) or north/western (reasoned/realization) - or another. The overall integral approach, or rhythm that the author draws upon, and has used in the field for the past decade, is that of recognizing and releasing what he terms GENE-ius, through local Grounding, local-global Emergence, newly global Navigation and ultimately global-local Effect, encompassing nature, culture, technology and enterprise. Moreover, he offers a body of integral theory that has been developed in twelve separate volumes, related to different aspects of integral development. This book on awakening integral and developmental consciousness - from an African, Asian or Euro/American perspective - is unique. Moreover, and specifically as such, the author offers an alternately relational ("southern"), renewal ("eastern") and reasoned ("north-western") perspective on such development. (shrink)

In discussing the works of 16th-century theorists Francisco de Vitoria and Alberico Gentili, this article examines how two different conceptions of a global legal community affect the legal character of the international order and the obligatory force of international law. For Vitoria the legal bindingness of ius gentium necessarily presupposes an integrated character of the global commonwealth that leads him to as it were ascribe legal personality to the global community as a whole. But then its legal status and its (...) consequences have to be clarified. For Gentili on the other hand, sovereign states in their plurality are the pinnacle of the legal order(s). His model of a globally valid ius gentium then oscillates between being analogous to private law, depending on individual acceptance by states and being natural law, appearing in a certain sense as a form rather of morality than of law. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Prophecy without Contempt: Religious Discourse in the Public Square by Cathleen KavenyKyle LambeletProphecy without Contempt: Religious Discourse in the Public Square Cathleen Kaveny CAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2016. 464 PP. $49.95"The American public square is not a seminar room" (419). This being the case, Cathleen Kaveny's Prophecy without Contempt challenges ethicists, among others, to reconsider the rhetoric of moral address. Rather than a narrow focus on deliberation, (...) Kaveny commends attention to the genre of indictment, and particularly the American jeremiad, as a significant mode of moral address that deserves normative analysis. Kaveny is no partisan of prophecy. But she offers moral and rhetorical criteria of prophetic speech that allow the genre to do its indispensable work.Kaveny's book proceeds in four parts. In the first part she sets the stage for her argument by surveying three prominent accounts of the status of public moral discourse, critiquing each yet drafting them all into a more global [End Page 195] critique of the failure to take into account the central significance of the rhetoric of prophetic indictment. Correcting this neglect in the second part, Kaveny executes a historical retrieval of the American jeremiad, beginning with early Puritan preachers of the Massachusetts Bay Colony. The point of her at times plodding historical reconstruction is that the jeremiad was not originally socially divisive but rather served to build up the community by calling listeners back to a commonly agreed-on covenant. This uniting function of the jeremiad fails in later generations. Some readers will worry that Kaveny's retrieval risks nostalgia insofar as it conforms to a MacIntyrian declension narrative in which golden origins were irreplaceably fractured.This risk, however, is mitigated by the third and fourth parts of the book, in which Kaveny turns to constructive ethics. She argues that the forensic rhetoric of prophetic indictment should be understood as a chemotherapy. It should not be confused with deliberation, the normal form of moral address. Yet, like chemotherapy, used in the right amount it can restore an ailing patient to health. As we have come to expect, Kaveny is especially adept at taking the moral frameworks developed in one sphere and applying them to another. Trading medical analogies for military, Kaveny argues that best practices of ius bellum verborum can be developed from just war criteria. She adds to these rhetorical constraints that prophetic critique be offered against one's own people with whom one identifies through lamentation and hope. Kaveny concludes with advocacy of prophetic humility and irony as necessary elements of prophetic speech in our pluralistic contemporary context.Although written in accessible prose, Kaveny's book deserves rigorous scholarly engagement. She constructs her argument with the gracious interdisciplinarity of a leading scholar of law and theology at the height of her powers. She is methodologically promiscuous but never shallow, drawing on scholarly fields of moral philosophy, biblical studies, American religious history, in-depth case analysis of contemporary arguments about abortion and torture, and historical paradigms of prophetic virtue (and vice). While scholars in each of these fields will find claims worth engaging in Kaveny's text, ethicists will be particularly interested in her argument for a constrained, continuing need for prophetic indictment.My one critique is that her account of prophetic rhetoric is too conservative. Based on her historical retrieval, Kaveny argues that indictment should serve only to call listeners back to an already agreed-on covenant. It is undoubtedly the case, however, that Kaveny's exemplars of indictment such as Jonah, Lincoln, and King innovated and developed the covenant, even as they invoked it. This complaint aside, Kaveny's book is a major contribution to contemporary conceptualizations of the public square, and stands poised to open new directions for moral analysis of religious actors in pluralistic publics. [End Page 196]Kyle LambeletNotre Dame UniversityCopyright © 2017 Society of Christian Ethics... (shrink)

The objective of this works in to analyze the conditions of transference of sovereignty and the concept of natural liberty in William of Ockham. Firstly, I briefly explain some antecedents of the conflict of ‘investidures’. Secondly, I will show that Ockham advanced the existence of a set of natural rights hold by the community. This permitted to argue against the Papal interference in the secular sphere, but also to set limits to the emperor himself and grant the individual with natural (...) rights. Thirdly, I explain the differences between ius fori and ius poli and I suggest that Ockham did not provide point of contact between these laws, excepting in the case of liberty. Finally, I revise briefly Ockham’s term translation imperii. (shrink)

In spite of extensive criticisms, war metaphors are still widespread in medical discourse. In the domain of public health analogies between war and infectious diseases are rooted in the similar impacts they can have on political institutions and communities. This similarity has been emphasized by the recent trend of addressing infectious disease from the point of view of national security. Nevertheless, it is here argued that the analogy cannot be used to model normative principles for treating carriers of contagious diseases (...) after the principles of ius in bello . Yet, the analogy may provide some useful practical and theoretical insights in tackling the growing problem of limiting the spread of drug-resistant pathogens: an issue that generates increasing worries and raises difficult ethical and political questions of rights, responsibilities and obligations. It is suggested that if anti-microbials and antibiotics are seen as strategic information, their misuse can be usefully compared to careless talk in times of war. (shrink)

In medieval texts the term ius naturale can mean either natural law or natural right; for the latter sense see the article Natural Rights ”. Ius naturale in the former sense, and also lex naturalis, mean the universal and immutable law to which the laws of human legislators, the customs of particular communities and the actions of individuals ought to conform. It is equivalent to morality thought of as a system of law. It is called “natural” either (a) because it (...) is taught by natural instinct, i.e. some capacity innate in human beings, or (b) because it is accessible to “natural reason”, i.e. to personal reflection independent of any special revelation from God (such as the Christian faith claims to be) and independent of the moral authority of other human beings; or for both reasons. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:BOOK REVIEWS 535 the consequent thinness and incompleteness which invest the author's discussion in this area. In fact, the omission leads Trinkaus to some misinterpretation regarding the nature and development of poetic theology and the relationships between the studia humanitatis and studia divinitatis. Thus he claims that Petrarch made the classic statement of the theologia poetica ("Poetic is not at all opposed to theology"), thereby inferring that he (...) revived this insight for the Renaissance. But this interrelationship had already been fully and substantively developed by Dante (as Colish convincingly shows in her concluding chapter). Dante's own poetic epistemology grew out of medieval poetics and was explicitly linked to Augustine's (by Dante in the Convivio). In his letter on the Divine Comedy, furthermore, Dante shows that he has appropriated for himself as poet all the tasks, methods, and powers of theology. The Divine Comedy is to be read like Scripture; its purpose is to remove men from misery and bring them to beatitude. That it can do so, moreover, derives from the fact that, as he wrote in the Convivio, "words... are like the seeds of action." Speech, e.g., prayers, poems, confessions of faith, etc., can transform the behavior of the hearer. That is why Dante called himself a poet of rectitude, and why his epitaph described him as a theologian (Theologus Dantes). Yet Trinkaus asserts that Petrarch and especially Boccaccio revived this Augustinian theory of the relationship between the prisci poetae and the prisci theologi. If Boccaccio contributed to this process (and he did), it was less because of his interest in poetic legends about the gods, than because of his admiration for Dante, the subject of his public lectures and his biography. As he declared in his Li[e o[ Dante, it is perfectly clear "that not only is poetry theology but also that theology is poetry." And were it permitted, he allowed, "I should say he [Dante] would have become a god on earth." One misses the presence of Dante in Trinkaus' book; for he belongs--as Boccaccio and Bruni, and (much later) Burcldaardt made plain--at the heart of all Renaissance discussions of poetry and theology, of epistemology, of the employment of learning to civic, public, and moral purposes, and of human and humanistic attempts to reintegrate the soul and reconcile logic to life. He, too, possessed Fanstian dimensions, and like Petrarch, he inspired the humanistic enterprise that came after. Jo~ H. GEEatmN Scripps College and Claremont Graduate School Rhetoric and Truth in France. Descartes to Diderot. By Peter France. (Oxford: The Clarendon Press, 1972. Pp. viii + 282. $16.25) Can a writer express the truth without relying upon rhetorical devices? A negative answer to this question provides the recurrent theme in a "series of linked essays" in which Peter France examines classical French rhetoric as represented in the writings of Descartes, Montesquieu, d'Alembert, Bossuet, Boileau, Racine, Diderot, and Rousseau. He begins with Descartes, who is symbolic of the traditional philosophical revulsion against rhetoric, and then examines the remaining authors who fall on a spectrum between Rousseau, who engages in the "desperate quest for the mirage of genuine, unmediated communication," and Boileau, who was the self-conscious designer of a new style of rhetoric. While the focus is philosophical, the background of this book is largely historical in its illustration of the intellectual tools of a major part of French society over an extended period of time. Professor France is successful in having focus and background reinforce one another. In Part I, he begins with a description of rhetoric in the ancien r~gime. He reviews the classical and medieval roots of rhetoric; the influential Renaissance view of rhetoric as mere ornament, a view perpetuated by the work of Peter Ramus; and the role of rhetoric 536 HISTORY OF PHILOSOPHY in the ancien rJgime as it was taught in the schools and as a mark of social ascension. The conclusion of this review is that "all systems of verbal communication appear to contain an element of distortion." In interpreting Descartes, France relies heavily and admittedly upon the work of Goubier. One surprising comment is the assertion that Descartes refrained from publishing Le... (shrink)

PHILOSOPHY OF HUMAN RIGHTS: HUMAN RIGHTS IN LIGHT OF THEIR INTERNATIONAL PROTECTION Summary The book consists of two main parts: in the first, on the basis of an analysis of international law, elements of the contemporary conception of human rights and its positive legal protection are identified; in the second - in light of the first part -a philosophical theory of law based on the tradition leading from Plato, Aristotle, and St. Thomas Aquinas is constructed. The conclusion contains an application (...) of the results of the analysis conducted in the second part. The first part comprises four chapters. The first aims at revealing characteristics of human rights on the basis of an analysis of historical conditioning of the inter-national law of human rights and its development. The historical context displays the practical, vindicative, and critical character of the positive legal protection of human rights. Moreover, the process of change of positive human rights law is distinguished from the process of change of human rights as such. In the second chapter the content of human rights - a topic which is only auxiliary to the conducted analysis - is discussed. Basic typology and catalogues of rights proclaimed in the Universal Declaration of Human Rights and protected in the International Covenants of Human Rights are presented. The review of the content of rights aims at a more precise limitation of the field of research. The examination shows a diversity of rights which poses a serious challenge to the coherence of every philosophical theory of human rights. In the third chapter, central in the first part, international law is analyzed with regard to the characteristics of rights and the foundations of them. The analysis of documents shows a number of solutions referring to the anthropological foundations of rights. The inherent dignity of the human person is the source of all human rights. Each human being is recognized as free, and endowed with both reason and conscience. In the propounded conception of man individuals are not rivals but create a community which is a condition for their development. International law characterizes the rights as universal, inherent, inalienable and inviolable. The reconstructed conception also comprises the following basic elements: on the level of the structure of rights, a recognition of their equality, interdependence, and comprehensiveness; in the grounding of these rights, a recognition of the anthropological foundations of law; in the conception of positive law, a recognition of the secondariness of the positive law of human rights to human rights themselves, and a recognition of human rights and justice as the basis for legal order; in the conception of state, a recognition of the well-being of the individual as the fundamental aim of actions undertaken by political institutions, and recogni¬tion of rights which form an impassable boundary to the power of the state, includ¬ing its legislative actions. The characterization of the international legal paradigm serving for the under¬standing of human rights is supplemented by analyses of the structure of their posi¬tive legal protection. Various meanings of the terms "right" and "freedom" are distinguished. Subjective right, as basic structure of the positive legal protection of human rights, is understood as a complex relation formed by various legal situations of the subject of a right which create a functional whole in respect of the subordi-nation of human person to its good. Subordinating person to a good proper for it, expressed usually in a proclamatory norm, is the central element of particular rights around which further elements aiming at the realization of this good are built. In the second part of the book a philosophical theory is developed which allows for the location of a coherent foundation for the presented characterization of human rights and their positive legal protection. This part consists of two chapters. The first includes a review of some - not entirely satisfactory - means of founding of human rights; the second presents philosophical conceptions of law and man which may form a basis for the constructed theory. The review of arguments contained in the first chapter does not aim at a detailed analysis of various specific ways of argumentation encountered in works on this subject but rather at a concise presentation of the main possible lines of argumentation. These analyses also serve to emphasize the positive solutions which are pro¬posed later and to underscore the explanatory power of the elaborated theory. This theory, retaining accurate intuitions contained in the presented types of argumenta¬tion, helps in avoiding their consequences which are difficult to reconcile with the reconstructed paradigm of human rights. Efforts to base human rights on the norms of international law rightly take into account the necessity of determining the content of the rights and their positive legal protection as a means for the realization of man's good. These attempts, how¬ever, do not properly take into account the inherent character of human rights, which are independent of positive law and provide grounds for applying specific legislative measures and not others. Founding human rights on freedom accurately points at the freedom of an indi¬vidual as a constitutive element of some rights; however, absolutization of freedom leads, to a loss of an important element of the contemporary paradigm of under¬standing human rights. This foundation undermines recognition of the fact that human rights may set limits to both the freedom of others and the freedom of the subject of rights itself. Additionally, attempts at the so-called axiological justification of human rights are discussed. This type of justification has a few variants depending on the as¬sumed conception of value. Subjectivistic conceptions have similar advantages and disadvantages to the conceptions basing human rights on freedom; objectivistic conceptions while providing for the universality of human rights place, the fundamental aim of human rights protection beyond the individual human being - in the idealistically existing world of values; finally, conceptions rooting values and human rights in culture, while accurately noting that human rights are learned through the medium of culture, place the source of human rights beyond a concrete individual - in culture and processes which take place in it - which leads to difficulties in finding a basis for the universality of rights. Furthermore, attempts to ground human rights in specific characteristics of the human being are presented. This type of approach points to an important problem of dependence of the content of rights on what man is. However, recognition of specific characteristics of a human being as an ontic foundation of the existence of rights poses a danger to their universality since one has to accept that it is not enough to be a man to be a subject of rights, but a man possessing specific charac¬teristics. The second chapter aims at outlining solutions worked out by Saint Thomas Aquinas. For a fuller understanding of his propositions selected elements of Plato's and Aristotle's philosophy are presented. It was them who formulated the founda¬tions for reflection on law and justice in the ontological context. A qualification is made that Stoicism is not be analysed in depth. Although Thomas' concept of law was undoubtedly developed under the influence of the Stoic doctrine as well, it is not in this that one should look for the tools to understand the ontic foundations of human rights and law in general since the Stoic moral philosophy and philosophy of law were developed in the context of a theory of being which assumed monistic and pantheistic premises as foundations, leading to the recognition of a total subor¬dination of the human individual to a larger unity of which man is only a part. The analysis of Plato's and Aristotle's texts concentrates on problems of justice. Plato seems to be the first philosopher who reflected on the formula basic in the history of European thought: to render to each his due. It appears that justice as both a characteristic of man and his acts is understood in the perspective of that which is just, that which is a good for another man - the recipient of the act. The basis for determining what is just is the relation of correspondence between some¬one and something. While in the case of Plato this relation is based on something beyond its terms, namely on ideas, in the case of Aristotle the relation occurs on account of the elements of the relation itself. Something is just when it contributes to the develop¬ment of the recipient of an act realizing that which is just. At the same time, the realization of that which is just is a good for the agent. In the analysis of the just two types of relation are revealed: the relation of due-to-recipient occurring on account of the compatibility of that which is due, with the recipient of the act; and - a "superstructure" - a relation of obligation-of-subject occurring on account of the compatibility of the acting subject with the thing which should be done. The basis for being that which is due is formed by various potentialities of development of man - the recipient of agency; the basis of being that which is an obligation is the possibility of development of the subject of action. Aristotle distinguishes various types of freedom and points to the necessity of taking them into account in the discussion of justice. Among other things, as the core of man's freedom, he considers life for its own sake, which can be seen as his expression of the basic indices of the autotelic character of man - which is funda¬mental for later conceptions of dignity. The freedom which is described by him is not, however, inherent and inalienable; being free is conditioned by a factual possi¬bility of undertaking actions, which are not solely means to the realization of aims set by others. Thomas Aquinas takes over the Aristotelian research perspective both in his conception of man and of law. At the same time, however, he significantly enriches it. In anthropology he develops a conception of personal being. Drawing upon his distinction between existence ("that something is") and essence ("what something is"), he sees the basis for being a person in the dignity of personal being which is a certain way of existence of a rational being more perfect than that of non-personal beings. The person is a being which, by virtue of its act of existence, is individual¬ized in a specific way. It is an aim in itself. Expressing it in a negative way, one may say that it does not exist as a means for the realization of the aims of others and, in this sense, that it is free. As distinct from Aristotelian conclusions, being a person is not conditioned by the specific actions of a being. Dignity is inherent, based on that which is the foundation of the factual existence of every rational being. Although freedom requires that a being is rational, dignity still encompasses all being, all its properties and potentialities. Thus an act conforming with dignity has to take into account a whole human being. Among different types of that which is just, ius, the first place, from the point of view of understanding law, falls to "the just thing itself ("ipsa res justa"), which is right in the full meaning of the word. On the one hand, it is that which is due; on the other hand, it determines the way of acting in the utmost degree, since the course of every act is determined in the fullest extent by its aim. The content of ius may be determined both by elements independent of free decisions - ius naturale - and by free decisions taking into account the state of things - ius positivum. Recognition of the objective structure of being as the basis of law does not entail that it is possible or desirable to determine unequivocally "the only right" patterns of conduct. This concept is very well justified within the system proposed by Saint Thomas. Individualization of being is a significant element of the develop¬ment of a person as a person. It is attained by the realization of individual aims which are not unequivocally determined by circumstances and the nature common to all people. By virtue of free choices made in the sphere of that which is not by its nature unjust, the object of action becomes ius. Since in the realization of the person the individualization of human being is central, Aquinas clearly sees the need for the protection of the sphere of "dominion of will". This sphere itself constitutes ius naturale, something which is due to man independently of the acts of will. Therefore "law should forbid nothing which is not unjust" ("nihil debet lege prohiberi quod licite fieri potest", In 3 Sent., dist. 40, q. I, a. 1, 3). Besides the relation of due-to-recipient, ius also includes the relation of obligation-of-subject which is superimposed on the relation of due-to-recipient. As far as the ontic foundations of obligation are concerned, in explaining why man is subordinated to realization of the good of others, Aquinas generally follows Aristotle in accepting that this basis is the subordination to moral good - to actions conforming with the learned truth about reality. Aquinas' systemic solutions allow, however, to reach deeper and understand why moral development is also a development of the whole human being. This was difficult within Aristotle's system, since he was reluc¬tant to decide whether precedence should be given to intellectual or moral develop¬ment. The inclination to realise good of another appears to be a transcendental characteristic of being, based on its very existence. Morality understood as rational and free subordination to realize the good of another is a specifically personal way of the realization of this inclination. Thus just actions contribute to the actualization of being in the aspect of its existence and therefore to the actualization of being as a whole. Thomas' conception of natural law (lex naturalis) as participation in eternal law (lex aeterna), offers possibilities for grasping that which is just as something which is basically accessible cognition, independently of Revelation and independently of faith in God, and at the same time as something based in eternal law, understood as a design of God's wisdom. Eternal law, embracing all particular actions, is not, from the human perspective, accessible cognition directly. It is enacted in the struc-ture of the created being and - in case of human beings - in free choices taking this structure into account. In the concluding remarks, the results obtained earlier are applied directly to the contemporary conception of human rights. Human rights are understood in the first place as "just things" - concrete goods of man; as that which is due because of subordination, based on dignity, to the personal development of man. That which is just is understood as a relational - actual or potential - state of things, which exists by virtue of existing relations. Evaluations referring to that which is right are true when respective relations of due-to-recipient take place; norms of conduct are true when respective relations of obligation-of-subject take place. Examples of the application of the sketched theory outside the field of human rights are also presented. Procedural consequences of the developed theory are shown, such as the discrimination of two types of legislative procedures which differ significantly in the structure of argumentation: the first aims at recognition of that which is just independently of the will of the legislator, and the second, at making individual or collective "projects" of development compatible. Finally the possibilities of applying the theory to the increasingly important problems of the protection of the environment and the "rights" of animals are mentioned. The central issue is a philosophical conception of man and his freedom and a conception of law. It is also indispensable to turn to a general theory of being. The search for a comprehensive theory of human rights requires attention to the Abso¬lute Being - God - as well. This is important for at least two reasons. First, a conception of the Absolute Being is integral to philosophy of the systemic type -of which the present book is a piece. A conception of the Absolute Being is signifi¬cant for understanding all being, including, first of all, man as a personal being. Second, every theory of human rights which does not comprise the problem of the Absolute may be questioned as to whether solutions adopted in it do not lead, in consequence, to eliminating God from the perspective of the understanding of law. It is desirable that a philosophical theory should deal with this problem directly. A theory which eliminates God from the perspective of the understanding of rights will be unacceptable for all those who, for philosophical reasons or relying on faith, consider God as the author of inherent rights. Nevertheless, a theoretical approach to rights from the perspective of the Absolute Being should only be a possible extension of a philosophical approach which bases rights on something which is cognizable independently of the acceptance of the existence of God so that the theory is also acceptable for those who reject the existence of God or suspend their judgment on this subject. The pursued theory should therefore contain, on the one hand, reference to natural, faith-independent foundations of human rights, but on the other hand, point to a possible extension accounting for the Absolute Being. The analyses contained in this chapter have undoubtedly some historical value since they are based on source texts. Nevertheless, the use of these texts and not critical works was dictated, first of all, by a conviction that analyses embrace a given theory in the aspect selected by the interests of the researcher. Therefore to find out what past thinkers say on the subject characterized in the first part it is simpler to reach to the sources than to adopt the existing critical works. The pre¬sented reconstruction of Aquinas' views on philosophy of law incorporates proposi¬tions of supplementing and developing some of the ideas undertaken by him. Obligation to act in this and not an other way arises because human actions are subordinated to the conformity, on the one hand, of aims realized by these actions and, on the one hand, the order of being determining that which is favourable to man or destroys him. The content of the order of being is, on the one hand, determined by the structure of being independent from man's will and, on the other, by free decisions of man. (shrink)

A state is sovereign if it has complete power within a political community, and complete independence. It may seem that the idea of sovereignty is objectionable because of two moral principles, or incoherent because of a paradox. The paradox is that a sovereign state must be capable of binding itself and must also be incapable of binding itself. The moral principles are that no state can justly exercise complete power internally, or complete independence (since complete independence would imply freedom from (...) norms of ius cogens, and from interference with mass atrocities by the state). Through an analogy with human autonomy, I argue that the paradox is only apparent, and that the moral principles are compatible with state sovereignty. So the idea of sovereignty is a coherent idea, and sovereignty, rightly understood, is a valuable feature of states in international law. Sovereignty is to be understood as internal power and external freedom that are complete for the purposes of a good state. (shrink)

This article probes the relationship between archives and history by examining the archive policy on historical research in the first modern administration state of the German lands, the kingdom of Bavaria. Given the continuing tradition of the theory and practice of the arcana imperii in the 19th century, state archives served first and foremost the state. As a result, researchers’ interest in archival material was to undergo an administrative vetting procedure, in order to safeguard the interests of the state. By (...) examining comparatively the cases of two petitioners supplicating for the historical use of state archives in Munich, the article showcases the policy of secrecy and the resultant administrative threshold separating the sphere of the arcana from the public. Caution guided the archive politics of state officials and, ultimately, their more or less explicit notions and concerns decided which material was finally to be released, in order to become a ‘source’ for historical study. Historical researchers such as the writer Alessandro Volpi and the historian August Kluckhohn were thus required to meet specific criteria and to overcome political hurdles, in order to gain access to the desired clues guarded by the state. As a result of this, the opportunity to inspect archival material was very much dependent on the political communication between petitioner and government, and its result, the granting or denial of access, was not without ramifications for historical research and the epistemic status of historical knowledge. (shrink)

The concept of human dignity seems to be closely connected to the idea of human rights. But whereas human rights are at least from an institutional point of view well established, the concept of human dignity is often seen as either arbitrary and superfluous or fundamen-talistic. The paper shows that human rights and human dignity had different histories for a long time but are nowadays intrinsically connected. The concept of human dignity implies a certain core of human rights and offers (...) the chance to understand that there is not one overall view of human rights for all times and places, but that human rights discourse always has to be open to modifications according to the conditions of application. After first mentions in Cicero and Seneca, more diversified uses by Aquinas and Pico della Mirandola, the talk of human dignity finds its current meaning in Kant’s philosophy, often connected to the formula of persons as ends in themselves. This seems to be one of the systematic connections to the tradition of human rights which has its roots in the semantic shift of the word ius in 11th and 12th century from an objective order to claims of different kinds. This kind of argument is used in different contexts throughout the following centuries and transformed in 16thand 17th century into claims of citizen’s rights and human rights. Another connection between the two concepts is given by Martha Nussbaum’s capability approach which is not restricted to human reason. The criticisms against the two conceptions are also different, but connected: Human rights are accused to foster individualism and egoism against the community and declared to be an erroneous development of western culture. Human dignity is seen as an indicator of human hubris towards other creature, based on metaphysical assumptions and a part of “slave morals”, contempt by men like Nietzsche. Both criticisms seem not to be adequate. In the end, the concept of human dignity gives an instrument to defend as much as possible of human integrity in situations where human rights are violated, limited or in one or the other way under pressure. (shrink)

This paper provides a critical analysis of the premises and arguments put forward by the Ius Constitutionale Commune en America Latina project to ground the image of the Inter-American Court of Human Rights as an agent of democratic transformation. It highlights three critical aspects: 1. the profile of the Court is constructed by legal scholars relying on self-validation and self-referentiality, 2. that image validates the idea that lawyers and the judiciary are agents of transformation ruling over local spaces from (...) above, thereby discarding people as the central subjects of change and democratization, and 3. the concept of representative democracy becomes a device that secures the self-validating dynamics of the image of the Court as democracy builder. (shrink)

In 1538–39 Francisco de Vitoria delivered two relections:De IndisandDe iure belli.This article distills from these writings the topic of free trade as a “human right” in accordance withius gentiumor the “law of peoples.” The right to free trade is rooted in a more fundamental right to communication and association. The rights to travel, to dwell, and to migrate precede the right to trade, which is also closely connected to the rights to preach, to protect converts, and to constitute Christian princes. (...) This has significant repercussions on the field of business ethics: the right to free trade is ultimately founded directly on natural law and indirectly on divine law; trade is not independent of ethics; and trade is presented as an opportunity to develop the virtues of justice and friendship, among other repercussions. Vitoria is portrayed as a defender of private initiative and free markets. (shrink)