In lieu of an abstract, here is a brief excerpt of the content:...

In lieu of an abstract, here is a brief excerpt of the content:...

This book compares the respective concepts of the law of nations put forward by the Spanish theologian Francisco Suárez and by the Dutch jurist Hugo Grotius. This comparison is based on the fact that both thinkers developed quite similar notions and were the first to depart from the Roman conception, which persisted throughout the entire Middle Ages and the early Renaissance. In Rome, jus gentium was a law that applied to foreigners within the Empire, and one which was often (...) mistaken for Natural Law itself. These two features can be found even in the works of writers such as Francisco de Vitória and Alberico Gentili. In Suárez and Grotius, the law of nations is applicable to an extra-national domain and inarguably becomes positive law. Yet, it also contains an ethical element that prevents it from transforming into a mere reflection of state interests. This work argues that this resemblance is hardly a coincidence: Grotius has read Suárez, and that influence has modified the foundations of his early thoughts on jus gentium. This should not be taken to imply that the Dutch jurist wasn't original: in both authors, the definition of the law of nations pursues his own internal logic. Nevertheless, Suárez's oeuvre allowed Grotius to solve a fundamental problem touched on in his early writings that had remained unanswered. Accordingly, his oeuvre promises to clarify one of the most significant moments in the History of International Law. (shrink)

Addison and Steele’s legacy on polite manners has been widely acknowledged as a hallmark of the Scottish Enlightenment’s tradition. On the other hand the place of courtly, ‘French’ politeness within the Scottish Enlightenment is much less debated. Conceiving the European Enlightenment as a status quo built on ‘French manners and English liberty’, as Pocock perfectly synthesizes1, points out to the restrictions imposed on religious fanaticism and warfare by the ‘jus gentium’ and European civility. In my paper I aim to (...) shift the attention to the seemingly obvious fact that manners, the backbone of European civility, originate in court, and Versailles was the court par excellence. In this context I explore Adam Smith’s struggle to strip politeness and civility of its aristocratic components. In the heart of the matter lies the strange idea of courtoisie without a court, of propriety that should overcome formal politeness i.e. imitation of aristocratic manners. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Instinct of Nature: Natural Law, Synderesis, and the Moral SenseRobert A. Greene“Instinct is a great matter.”—Sir John FalstaffThis essay traces the evolution of the meaning of the expression instinctus naturae in the discussion of the natural law from Justinian’s Digest through its association with synderesis to Francis Hutcheson’s theory of the moral sense. The introduction of instinctus naturae into Ulpian’s definition of the natural law by Isidore of Seville (...) in the seventh century posed a problem of definition for medieval commentators. Some said that it meant a universal and providential natura naturans; some defined it as the urge to self and species preservation in animals, degenerating in man into sensual and shameful impulses; some advanced the humanistic and paradoxical notion that it referred to a unique exercise of human reason in coming to know the natural law. The contemporaneous revival in the twelfth century of St. Jerome’s puzzling new term “synderesis,” and its gradual definition as the immediate apprehension of the first practical moral principles of the natural law, brought the two terms into proximity and loose association.A half-century later St. Bonaventure made explicit what had remained latent in the thinking of Thomas Aquinas by relocating synderesis in the affective rather than the intellectual part of man’s nature. Accordingly the moral discoveries of synderesis came to be spoken of as not only non-discursive but instinctive in nature—apprehensions for which no reason could be given, apprehensions somehow rooted in affective human experience. During the bilingual early modern period an increasingly secularized, internalized, and reified instinctus [End Page 173] naturae, together with its abbreviated vernacular cognate, “instinct,” came to serve as a substitute and synonym for the obsolescent synderesis. Edward Herbert’s attention to instinctus naturae in his De Veritate (1624), Sir Matthew Hale’s speculations about the place of rational instinct in the natural law, and Francis Hutcheson’s theory of a moral sense all exemplify this semantic legacy.The first entry in Justinian’s Digest has had a disproportionate influence on later speculation about the natural law. It begins a chapter that gives pride of place to general definitions of justice, law, jus naturale and jus gentium, and it is drawn from the writings of the Roman jurisconsult Domitius Ulpianus (d. 223), whose work constitutes forty percent of the Digest. Ulpian defines the natural law, with insistent repetition, as that which nature has taught to, or is common to, all animals:Jus naturale is that which nature has taught to all animals; for it is not a law specific to mankind but is common to all animals—land animals, sea animals, and the birds as well. Out of this comes the union of man and woman [male and female] which we call marriage, and the procreation of children, and their rearing. So we can see that the other animals, wild beasts included, are rightly understood to be acquainted with this law. Jus gentium, the law of the nations, is that which all human peoples observe. That it is not coextensive with natural law can be grasped easily, since this latter is common to all animals whereas jus gentium is common only to human beings among themselves. 1Justinian’s compilers gave Ulpian’s definition striking prominence at the beginning of the Digest and then in the same short chapter quoted the incompatible and more traditional definitions of his contemporaries Gaius and Paulus. They confined the operation of the natural law to mankind and spoke of reason as its source. 2 The compilers had been charged to eliminate just such conflicts; yet here at the very outset they set a conundrum that perplexed commentators [End Page 174] and invited explanation from Isidore of Seville to Hugo Grotius. Their selection of quotations suggests that as lawyers they regarded such general definitions as “for legal purposes no more than ornament to discussion.” 3 For those of a more speculative bent, however, the dilemmas could not have been more fundamental. How was the natural law to be defined in relation to those appetitive and self-preservative urges that man seemed to share with animals? Or did the term law apply only... (shrink)

To justify their activity, the first English mercantilists present commerce as a natural activity, which promotes peace between nations and contributes to the progress of civilization. In particular, they use the lex mercatoria, a notion inherited from the Middle Ages. The idea of a mutual trade of humanity, put forward in the writings of merchants, but also in an author like Grotius, contrasts with the theories of sovereignty linked to a national territory by political thinkers like Francis Bacon, Thomas Hobbes (...) and William Petty, or in some ways with a lawyer like John Selden. Paradoxically, while the constitution of colonial empires coincides with the rise of the great international trade, freedom of trade is presented by its defenders as an alternative to the antagonism between the states and the logic of domination induced by modern theories of imperium. This apparent contradiction between state logic and commercial humanism –or what appears to be such– seems to subsist in the modern resurgences of the lex mercatoria in the twentieth century. Yet, the idea of a source of the law independent of the state and rooted in the antiquity of customs, the uniformity of market practices or the jus gentium, is largely a fable, and an ideological construct aimed at concealing the reality of commercial practices. From this point of view, the fable of the lex mercatoria certainly plays an important role in the constitution of the commonplace of the doux commerce and the promotion of the freedom of trade by those who are, directly or indirectly, the main beneficiaries. (shrink)

This chapter explores the character and normative foundations of Hobbes's international ethics. In Hobbes's case, international ethics is composed of three distinct sets of norms: natural rights, the laws of nature, and justice. In Leviathan, Hobbes's international ethics are informed by sovereign duties of care to national subjects – not unlike the tacit ethical assumptions of some modern realist theories of international relations. Commonwealths and pre‐statist individuals face different empirical conditions, making the international state of war a less wretched condition (...) for subjects than the prestatist war of all against all. Scholars have hitherto overlooked Hobbes's concomitant naturalistic conception of rights of war – justifying both preventive attacks and outright conquest. Both the English and Latin Leviathan reiterate the earlier equation of jus gentium with natural law. Hobbes thereby effectively made having a right intention the sole criterion for permissible resort to armed force. (shrink)

Currently there is a widely held view that international law and its historiography did not emerge until the nineteenth century, with earlier forms of jus gentium or Völkerrecht being consigned to the status of a superseded ‘pre-history’. It is not widely understood that this view itself belongs to a particular kind of historiography–the dialectical historiography of international law–that was born in 1840s Germany, and wielded this viewpoint as a cultural-political weapon to exclude its rivals from ‘modernity’. In outlining a (...) history of this dialectical historiography, the present article focuses on the reception of Kantian and Hegelian philosophies, understood as species of Protestant rationalist metaphysics, in the juridical-political arena of the German Vormärz. Dialectical histories and theories of international law were the effects and instruments of this reception, which gave rise to the new academic subculture of philosophical international law. This subculture in turn permitted the fashioning of a new intellectual persona, the philosopher-jurist, who could claim to transcend positive treaty-based international law through personal insight into a ‘common international legal consciousness’, and to treat this insight as the threshold of ‘modern’ international law. (shrink)

During a period when transatlantic slavery was still being racialized, Hobbes and Leibniz represent stark alternatives on the nature and justification of slavery. This article investigates Leibniz’s encounter with the Hobbesian position on slavery (servitus), drawing out the racial implications. Throughout his political works, Hobbes defended voluntary servitude by transforming a legacy of Roman jurisprudence that had come to be encapsulated in the law of nations (jus gentium). Hobbes defended the justification that a master could possess slaves as de (...) jure property with the rights to buy or sell them. In Sur la notion commune de la justice, Leibniz argued against Hobbes that slave-owners’ rights should be limited. He also defended his own paternalistic justification of slavery, reinterpreting Aristotelian natural slavery. Leibniz claimed that some persons merit guidance as slaves by nature, yet legitimate possession of persons can only go as far as a usufruct. In contrast, Hobbes had rejected the normative logic that any person could rationally merit enslavement but maintained that masters could totally possess the body of captive slaves for as far as their power extends. (shrink)

The title of this book is not really catchpenny; it fairly indicates the contents. The theological disputation, held at Valladolid in 1550, about the lawfulness of the Spanish conquests in the New World, did largely turn upon the question whether the Indians were slaves in Aristotle’s sense or not. The entanglement of the institution of slavery with the natural law and the jus gentium is a very old one. It was not seriously undermined until the Stoics taught the universal (...) citizenship of the world and, far more effectively in the long run, Christianity taught the dignity of human nature. But the institution survived far into modern times—and perhaps still survives. Professor Hanke finds that some apologists of racial segregation in the United States and of apartheid in South Africa hold views scarcely distinguishable from Aristotle’s—that some men are naturally inferior and, in their own interests, should be ruled by the more capable. (shrink)

This book is a study of an important revolution in the history of thought, a break-through on the twin fronts of law and history in which the outstanding campaigner, on both fronts, was Jean Bodin. Roman law was, from its revival in the eleventh down to the beginning of the sixteenth century, studied and interpreted in a very literal and textual fashion; it was assumed that the Codification of Justinian included all the legal wisdom there was and that the function (...) of the glossator was simply to show it forth. The sixteenth century philologists, led by Budé, raised serious doubts. And by the middle of the same century there was not merely a demand for a proper philological study of the texts but for a systematization of the vast mass of legal disposition that constituted the Corpus Iuris Civilis—jus in artem redigere. The result was an undermining of the authority of Roman law and a realisation that, while it might be an incomparable store of legal wisdom, there was no good reason for thinking that it was the only, or the best, system for actual conditions in sixteenth-century France. French customary law, which by now had been written down, was clearly adapted to the needs of the time in a way that Roman law never could be. This may seem obvious; but the realization of the obvious took time. And Bodin’s importance lies in his working out of a three-pronged comparative approach in his exposition of jus gentium, his comparative jurisprudence and his sociological theory of legal history. The stages in this revolution are fully documented by Professor Franklin in the first part of his book. (shrink)

In light of recent reevaluations of the work of Hugo Grotius, this essay analyzes the respective roles of Francisco de Vitoria and Grotius in the construction of the “Grotian tradition” of international law and human rights. In contrast to conventional accounts which understand the two within a progression, this essay argues that Vitoria and Grotius can alternatively be understood as representing two distinct strains of international law and ethics, forms of which persist to this day. The first is that strain (...) which privileges local governance based on the natural law and which insists that international law must have a moral or equitable valence (represented today by liberal internationalism). The second, competing strain which, with its focus on “neutral” rules of commerce and international order, presumes that it need not have such a valence (essentially, neoliberalism). In the process, this essay examines the role of the natural law in Vitoria’s thought, which for him was most often a reason against interference or intervention, not for. The essay also highlights the role of the Eighty Years’ War between the Dutch United Provinces and Spain in the development of Grotius’s understanding of sovereignty, in contrast to the Thirty Years’ War which is given more prominence in conventional accounts. (shrink)

At the latest following Pufendorf's Jus naturae et gentium , the attempt to develop natural law out of one basic principle is prominent. Although John Locke characterizes Pufendorf's natural law as worthy of emulation and his own Treatises of Government reveal obvious traces of Pufendorf's ideas, still one fails to find any influence by the "basic-principle idea." Furthermore, Locke never explicates the mathematically demonstrative principle for law and morals, which he introduced in his Essay Concerning Human Understanding . Locke, (...) however, does indicate in his Reasonableness of Christianity of 1695 that he sees the execution of such a program unrealistic at least by this point in time. He instead develops a form of heurism, which, in reliance on the New Testament , permits him to introduce a rational moral theory and a rational natural law. His natural law theory reveals its rationality not through its justification or by providing a systematic exposition, but rather by resisting any possible objections of reason. (shrink)

In Paul Ricoeur’s hermeneutics, the truth of fiction relates to the search for answers to questions about personal identity and the meaning of life in the world lacking substantial foundations. Ricoeur’s considerations are situated between realism and constructivism. The article dicusses the consequences of the hermeneutical relationship between imaginary worlds and reality for the redefinition of such concepts , as: “truth”, “understanding”, “ethics” and “personal identity”. I attempt to answer the following questions: What is the truth of literary fiction? What (...) is the relationship between literary fiction and reality? What, in the literary fiction, is created and what is discovered? What does self-understanding, related to the imaginary worlds, consist in? What is the role of literary fiction in constituting personal identity? Why is reading an ethical act? What is the role of metaphorical mediation in the process of understanding? (shrink)

On Jaina philosophy and the philosophy of Kabir, 15th cent., mystic poet.

The French phenomenologist Michel Henry sees a similarity between the primordial experience of what he calls ‘Life’ and the aesthetic experience occasioned by Wassily Kandinsky’s abstract art. The triple aim of this essay is to explain and assess how Henry interprets Kandinsky’s abstract art and theory; what the consequences of his interpretation mean for the theory of the experience of abstract art; and what doubts and questions emerge from Henry’s interpretations of Kandinsky’s theory and practice. Despite its containing many interesting (...) ideas, Henry’s phenomenological approach is insufficient to describe the aesthetic experience of Kandinsky’s abstract art. For Henry, aesthetic experience is corporeal, primordial, non-intentional, and independent of knowledge and culture.By contrast, I believe that it is possible and more suitable to connect the direct, corporeal, and affective character of the aesthetic experience of abstract art with intentionality and embeddedness in culture and knowledge. (shrink)

Although foreign workers contribute to the economy and society, their lack of citizenship renders them unequal, vulnerable and exploitable. In this article, I suggest that the citizenship principle of jus domicile can address this aspect of inequality and exploitation experienced by migrant labour. In addition, I argue that the jus domicile principle should be combined with open borders. In making this argument, I draw on a dialectical methodology and a diverse literature on social justice and liberal political theory. The model (...) I am developing is not necessarily for immediate policy implementation but rather presents a vision for a future of free mobility and settlement. (shrink)

This essay offers a case study in jus in bello in the American Revolutionary War by focusing on responses to sexual violence committed against American women by soldiers in the occupying British army and their Loyalist auxiliaries. Two main bodies of sources are juxtaposed in order to explore the contexts and manner in which jus in bello was adjudicated: British courts-martial and American Congressional investigations documenting British and Loyalist breaches of the codes of war. By putting the fragmentary evidence of (...) instances of rape in the context of contemporary legal and sociocultural practices of sexual violence in peacetime, as well as of the British army's disciplinary regime, we can elucidate the horizon of experiences and expectations against which survivors, assailants and prosecutors acted. The British army disciplined some soldiers for sexual offenses that violated military law and the codes of war, and it executed a few of them at a time when even their home society featured very low prosecu.. (shrink)

Abstract None of the numerous modern proposals for jus post bellum models has gained wide acceptance. The proposals tend to resemble laundry lists, often enumerated without an obvious and coherent ethical rationale. Recognizing the importance of jus post bellum, this article seeks to move the jus post bellum discourse forward. First, the article constructs a foundation of seven principles for jus post bellum models by modifying and integrating the separate proposals advanced by Bellamy and Evans. Then building on that revised (...) set of foundational principles, this article incorporates selected criteria and research from prior proposals to erect a five-part jus post bellum framework: (1) respect for persons; (2) establish justice; (3) exercise ecological responsibility; (4) engage multinational commitment and support; and (5) maintain progress toward closure. The article concludes by arguing that the proposed jus post bellum model is comprehensive, parsimonious, pragmatic, and has a universally applicable framework analogous to Just War Theory's other two components. (shrink)

Jus post bellum is the ‘new’ part of just war theory that deals with questions of post war justice. While many argue for this extension of just war theory, there is no agreement on the content and scope of post war norms. The debate on jus post bellum is often presented as one between so-called ‘minimalists’ and ‘maximalists’. This article analyses these main positions and the supposed differences between them, and argues that this distinction is no longer relevant. There is (...) no clear opposition between the two positions, but there are gradual variations in terms of content and scope of jus post bellum. In order to pinpoint these variations, a broader perspective is taken. The article thus aims to demonstrate that the content and scope of post war norms depends on two factors: the particular situation to which just war theory applies, and the general view on just war theory and international relations that is adopted. These factors explain the general shift towards a maximalist understanding of jus post bellum. (shrink)

In the preface of the 2006 edition ofJust and Unjust Wars, Michael Walzer makes an important distinction between, on the one hand, “measures short of war,” such as imposing no-fly zones, pinpoint air/missile strikes, and CIA operations, and on the other, “actual warfare,” typified by a ground invasion or a large-scale bombing campaign. Even if the former are, technically speaking, acts of war according to international law, he proffers that “it is common sense to recognize that they are very different (...) from war.” While they all involve “the use of force,” Walzer distinguishes between the level of force used: the former, being more limited in scope, lack the “unpredictable and often catastrophic consequences” of a “full-scale attack.” Walzer calls the ethical framework governing these measuresjus ad vim, and he applies it to state-sponsored uses of force against both state and nonstate actors outside a state's territory that fall short of the quantum and duration associated with traditional warfare. Compared to acts of war,jus ad vimactions present diminished risk to one's own troops, have a destructive outcome that is more predictable and smaller in scale, severely curtail the risk of civilian casualties, and entail a lower economic and military burden. These factors makejus ad vimactions nominally easier for statesmen to justify compared to conventional warfare, though this does not necessarily mean these actions are morally legitimate or that they do not have potentially nefarious consequences. (shrink)

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)

This article explores the issue of jus contra bellum as a particular development within just war thought. At its heart, the jus contra bellum amounts to an attempt to apply the principles of jus in bello (discrimination and proportionality) in order to negate the jus ad bellum. This approach was rather prevalent throughout the Cold War era, as concerns over the prospective use of nuclear weapons facilitated an increasingly sceptical attitude towards the use of force. Whereas the vast majority of (...) just war thinkers have tended to overlook this phenomenon, James Turner Johnson has adeptly recognised the perils of jus contra bellum, and its rather disastrous implications for just war thought. In this respect, Johnson's analysis of this issue constitutes one of his most significant contributions to the tradition. However, as this article will suggest, his assessment of this approach, and consequent efforts to counter it, do not go far enough. As will be noted, the roots of the jus contra bellum can be traced to the prevailing structure of just war thought – a structure which has been consistently championed by virtually every just war thinker. (shrink)

In this chapter, I argue that the notion which Michael Walzer calls jus ad vim might improve the moral evaluation for using military lethal force in conflicts other than war, particularly those situations of conflict short-of-war. First, I describe his suggested approach to morally justifying the use of lethal force outside the context of war. I argue that Walzer’s jus ad vim is a broad concept that encapsulates a state’s mechanisms for exercising power short-of-war. I focus on his more narrow (...) use of jus ad vim which is the state’s use of lethal force. Next I address Tony Coady’s critique of jus ad vim. I argue that Coady highlights some important problems with jus ad vim, but these concerns are not sufficient to dismiss it completely. Then, in the final section, I argue that jus ad vim provides an appropriate “hybrid” moral framework for judging the ethical decision-making outside of war by complementing other conventional just war distinctions. A benefit of jus ad vim is that it stops us expanding the definition of war while still providing the necessary ethical framework for examining violent conflict outside that context. (shrink)

The United States’ continuing engagements in Iraq and Afghanistan have focused reflection on how best to wage counterinsurgency, recognizing that the blurred lines between combatants and noncombatants that characterize this type of fighting broaden the range of opportunities and obligations counterinsurgents face. While many have looked to jus in bello constraints on the just conduct of war to guide this effort, jus post bellum requirements for the just cessation of conflict provide a better framework in which to discuss how soldiers (...) and marines may effectively and ethically pursue insurgents while simultaneously building host-nation capacity to govern politically, economically, and militarily. This paper demonstrates how jus post bellum obligations provide an important structure within which counterinsurgents may understand the full range of their obligations to the host nation and its population, best pursue insurgents while honoring their commitment to noncombatant immunity, and set the standard for what constitutes the end of the conflict and the appropriate point for military disengagement. (shrink)

The just-war framework neatly distinguishes between jus ad bellum, the criteria that address political leaders’ decisions for waging war, and jus in bello, the criteria that address soldiers’ condu...

The paper examines Thomas Hobbes’s theory of the state and representation in light of the historical development of the idea of the people as a corporation and its use in late-medieval and early-modern theories of resistance. Consequently, it is argued that Hobbes’s use of a corporate metaphor for the state embodied a rejection of the ius gentium reading of the people as a corporate body that legitimised the right of resistance to the sovereign power. By incorporating the state, not (...) the people, and championing a single covenant of a dissociated multitude that leads to its generation, Hobbes undermined the basis on which advocates of popular sovereignty justified opposition to the sovereign; a prerogative derived in their eyes from a covenant between the people and the ruler. (shrink)

The article deals with the newly discussed set of principles that focus on various issues concerning the end of a war and the establishment of peaceful conditions for the society after a war ends. It also reveals some drawbacks of the jus post bellum principles and searches for its possible modifications into a more complex and applicable set of rules that should govern any post-war activities on both sides of the conflict. The aim is to reach its plausibility in a (...) dynamic global society and thus argue that global peace is an attainable goal only when it becomes the goal of the global community. (shrink)

One of the most complex doctrines in contemporary international law, jus cogens is the immediate product of the socialization of the international community following the Second World War. However, the doctrine resonates in a centuries-old legal tradition which constrains the dynamics of voluntarism that characterize conventional international law. To reconcile this modern iteration of individual-oriented public order norms with the traditionally state-based form of international law, Thomas Weatherall applies the idea of a social contract to structure the analysis of jus (...) cogens into four areas: authority, sources, content and enforcement. The legal and political implications of this analysis give form to jus cogens as the product of interrelation across an individual-oriented normative framework, a state-based legal order, and values common to the international community as a whole. (shrink)

With his new book, A Theory of Truces, Nir Eisikovits has succeed in producing the most comprehensive and insightful book to exist on the nature and morality of truces during international military conflict. In it he plausibly argues that thought about such conflict should avoid binary terms such as long-lasting peace and all-out war, and instead must readily acknowledge conditions “in between” them, such as cease-fires and agreements to limit belligerence to certain times. In this critical notice of Eisikovits’ book, (...) I have two major aims, in light of the fact that in it he does not systematically engage with the contemporary literature on and positions in just war theory. One aim is to situate Eisikovits’ analysis of truces in that context, and to contend that he has implicitly founded a new field that merits the title jus interruptus bellum as distinct from jus in bello and jus ex bello. Another is to build on Eisikovits’ ethical appraisal of truces, by considering what principles of just war theory entail for them. (shrink)

Critical analysis of development of concept of jus ante bellum.

Just war scholars are increasingly focusing on the importance of jus post bellum – justice after war – for the legitimacy of military campaigns. Should something akin to jus post bellum standards apply to terrorist campaigns? Assuming that at least some terrorist actors pursue legitimate goals or just causes, do such actors have greater difficulty satisfying the prospect-of-success criterion of Just War Theory than military actors? Further, may the use of the terrorist method as such – state or non-state – (...) jeopardize lasting peace in a way that other violent, for instance military, strategies do not? I will argue that there appears to be little reason to believe that terrorist campaigns are in principle less able to secure or at least contribute to a lasting peace than military campaigns; quite to the contrary. Or, put differently, if terrorism is an unlikely method for securing peace, then war is an even more unlikely one. (shrink)

The burgeoning literature on jus post bellum has repeatedly reaffirmed three positions that strike me as deeply implausible: that in the aftermath of wars, compensation should be a priority; that we should likewise prioritize punishing political leaders and war criminals even in the absence of legitimate multilateral institutions; and that when states justifiably launch armed humanitarian interventions, they become responsible for reconstructing the states into which they have intervened – the so called “Pottery Barn” dictum, “You break it, you own (...) it.” Against these common positions, this chapter argues that compensation should be subordinate to reconstruction, with resources going where they are most needed and can do the most good, rather than to the most aggrieved. Just punishment, meanwhile, presupposes just multilateral institutions – the victor cannot be trusted to mete out punishment fairly. And just interveners, who have already taken on such a heavy burden, are entitled to expect the international community to contribute to reconstruction after they have made the first and vital steps. After presenting each of these objections in greater depth, the chapter proceeds to draw some tentative inferences from the threads running through each, and suggest that they illustrate a distinctive flaw in the way in which jus post bellum is addressed by many just war theorists, who not only see the war as the grounds of post bellum duties, but also take it to specify their content: Specifically, they take the rights violations with which wars are imbued to be the basis for post-war action, but take the content of post-war duties to be focused on rectifying those rights violations, rather than the more forward-looking goal of establishing a lasting peace. This backward-looking orientation unduly confines these theorists to making attributions of fault, to a limited palette of normative concepts, and to a focus on the belligerents rather than the international community as a whole. Undoubtedly warfare creates a distinctive normative relationship between belligerent states (though we must question how much of this devolves to the citizens of those states). War does generate grounds for post-war duties – but there are other grounds for those duties too, moreover the grounds should not determine the content. It of course matters that the citizens of two states harmed one another in violation of their rights. But when the war is done, peacebuilding should be the priority, not raking over the wrongs of both sides. Sections 2–4 present the objections, Section 5 offers the tentative analysis and proposes a shift in focus toward an ethics of peacebuilding, and Section 6 concludes. (shrink)

This paper serves three purposes. First, it examines the theme of jus post bellum (“postwar justice”) as it emerges within a just peacemaking (JP) framework. Second, it defines just political participation as civil society peacebuilding reflected in Catholic social thought (CST). Third, it envisions a place for just political participation within the jus post bellum praxis specifically endorsed by the World Bank report of 2007, titled Civil Society and Peacebuilding: Potential, Limitations and Critical Factors. The paper then attends to the (...) Church and faith-based organizations and their roles in civil society peacebuilding postbellum. In doing so, it clarifies the characteristics of jus post bellum within a JP scheme by (a) distinguishing them from the just war approach, (b) identifying JP-oriented jus post bellum thinkers such as Daniel Philpott and Larry May, and (c) incorporating civil society peacebuilding endorsed by both the World Bank report and CST. (shrink)

This presentation discusses why just war theory is in need of just military preparedness (jus ante bellum) as a new category of just war thinking and it articulates six principles of just military preparedness. The paper concludes that the United States fails to satisfy any of these principles and addresses how this bears on the application of jus ad bellum, jus in bello, and jus post bellum norms to possible future American military interventions.

War is bad for the environment, yet the environmental ramifications of warfare have not been widely addressed by just war theorists and revisionist philosophers of war. The law and legal scholars have paid more attention to protecting nature during armed conflict. But because the law focuses invariably on rules mitigating the conduct of hostilities rather than on objective justice of cause, environmental jus ad bellum has been explored even less extensively than environmental ethics in war. Setting out with the presumption (...) against the use of force and its exceptions, this article considers whether environmental harm can trigger a new justification for war, at whose behest, and what might be a proportionate response to aggressive or negligent harm to nature. Force is clearly justified against military attacks. Where environmental harm is not caused by military aggression, proportionality points towards a response short of war. Full‐scale warfare will likely be counterproductive in protecting nature. This is less true if war is fought by drones destroying specific targets, or by cyber‐war, or by alternatives (or supplements) to war such as boycotts, ‘lawfare’, and ‘information/media warfare’. Responding in ways that minimize harm to nature also helps demonstrate ‘right intention’. (shrink)