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This is the second of three chapters on the three traditions of war, and introduces the Groatian tradition, which is viewed as the most dominant and powerful of the traditions presented, and had as its primary source the Dutch diplomat, lawyer, poet, mathematician, theologian, and historian, Hugo Grotius (1583-1645). The objective of the chapter is to analyse this ideology, and show how its principles came to underpin the later Grotian rationale for the legal distinction between lawful and unlawful combatants. The chapter begins by evoking the inherently enigmatic qualities of Grotius and the numerous (and often conflicting) traditions that he inspired; next the distinct properties of the Grotian tradition of war are set out and seen to consist of a singular legal discourse, a pluralist method, and a strong attachment to order and power. The core components of this ideology are then examined with reference to Grotian conceptions of human nature, government, and liberty; these elements are shown to provide the necessary foundations of Grotius’ conception of war, and in particular to inform the priority accorded to the rights of states and armies over those of civilian populations. The final section of the chapter examines how this ideology informed the practices and beliefs of the founders of the modern laws of war; these ideological changes highlight the adaptability of this tradition as it developed at the end of the nineteenth century, and defined the dominant paradigm of the laws of war.

This essay chapter analyses the working methods of the Dutch jurist Hugo Grotius (1583-1645), particularly his use and referencing of ‘sources’ in his early works on natural law and natural rights. Like most early modern scholars, Grotius garnished his texts with second-hand quotations of authoritative writers (the Classics, St. Augustine, Thomas Aquinas, etc.) and his marginalia with second-hand references to authoritative texts. He often obtained these materials from sixteenth-century florilegia and reference works. A case in point is Grotius’ referencing of Thomas Aquinas’ Summa Theologiae in Ms. BPL 917 in Leiden University Library. When we compare underlined passages in Grotius’ own copy of the Summa Theologiae with his references to Aquinas in Ms. BPL 917, we discover that two Catholic theologians --Thomas Cajetan and Francisco de Vitoria-- served as his reader’s guides to the Summa Theologiae, and shaped his understanding of Aquinas in crucial respects.

This chapter reopens the early 19th-century treatises of James Kent and Henry Wheaton, the first Americans to systematically describe and analyze international law. It remarks on the importance that both authors assigned to the law of nations, and explores why Kent and Wheaton paid such homage to Hugo Grotius and what they saw as the Dutch jurist's Protestant fashioning of what Wheaton called ‘the international law of Christendom’. The international law of Kent and Wheaton was a law necessarily limited to a circle of like-minded states bound by a common tradition of culture, law, and morals, a characterization which departed from Grotius's own universalistic preferences. It is argued that Kent and Wheaton rejected the universalism in the Grotian tradition for two of the very reasons that motivated them to emphasize international law in the first place. First, like the Founding Fathers, they were anxious to use the law of nations to secure the recently won independence and sovereignty of the United States. Second and more originally, Kent and Wheaton sought to answer new positivist critiques of international law by John Austin and to affirm the efficacy of international law in international relations. Finally, it is argued that in so doing, Kent and Wheaton were not guilty of the sins of legalism-moralism sometimes ascribed by George Kennan and other ‘realists’ to American international lawyers in general. Rather Kent and Wheaton presaged a realism about international law that would later characterize some, though not all, Americans who came to practice and profess the discipline.

This is the third of three chapters on the three traditions of war, and introduces the republican tradition, which is represented partially through the writings of Jean Jacques Rousseau, who, along with Pasquale Paoli and Tadeusz Kosciuszko, advanced a unified system of the republican good life and war in conjunction with the laws of war. The way in which this tradition developed in the nineteenth century is depicted. The different sections of the chapter are: The Republican Tradition of War; Republicanism; The Three Founders [Rousseau, Paoli and Kosciuszko]; Rousseau’s Republican War; Rousseau, Paoli and Kosciuszko; The Nature of Man and the State of Nature: Rousseau contra Hobbes and Grotius; The Nature of War; Liberty; Government, Society, and the Republic; Republic; Patriotism and Nationalism; Republican Nationalism; Republican Founders of the Tradition of War: Paoli and Kosciuszko; The Republican Tradition in the Nineteenth Century; The Nineteenth-Century Republican Tradition of War; and The Development of the Republican Tradition of War.

This chapter turns to Hugo Grotius and to the origins of the modern natural rights tradition in a reworking of Ciceronian Stoicism. It first argues that there is a close fit between the general structure of a Ciceronian Stoic natural law theory and the argument that Grotius builds in his Prolegomena to De Jure Belli ac Pacis (1631). Next, the chapter notes that the Stoic concern with autonomy combined with regulating practical deliberation is what gives us this distinctive argument, in which strong claims about the natural sociability of human beings end up issuing in a theory characterised above all by rights that separate people and their property off from one another. Finally, although Grotius calls oikeiosis (a desire for society) the appetitus societatis, he in fact works far more closely with Stoic sources on the side of personal oikeiosis rather than on the side of social oikeiosis.

Historians of republicanism have focussed on states where princely rule was overthrown (15th‐century Florence, 17th‐century England). Yet even in princely realms town magistrates claimed to be part of a underline respublica mixta, a state combining the principles of monarchy, aristocracy, and democracy. Dutch writers understood the United Provinces as a underline respublica mixta—that is, a stable, balanced constitution. Some embraced the democratic principle, invoking the memory of ancient Athens. Others (partisans of the House of Orange) bemoaned the weakness of the monarchical principle. Still others, like Holland's Hugo Grotius, saw the town oligarchies as forming a proper, aristocratic republic, like Sparta or Venice. Thus understood, the new polity was hardly democratic; but in a Europe dominated by strong monarchies, it was a beacon of republican liberty.

Chapter 5 shows that Scaliger’s heritage could be used to different ends. Grotius used the tool of biblical philology to back up his somewhat naïve ideal of religious ecumenism between Protestantisms and Catholicism. As a reincarnation of Erasmus, he miserably failed to convince either party, but left an impressive set of annotations on the Old Testament and particularly on the New Testament, which trumped Heinsius’s annotations both in clarity and in sharpness. More than Heinsius, Grotius employed linguistic and political contextualization from pagan history, in the train of Scaliger, and also inspired by John Selden. There was competition between the one-time youthful friends Heinsius and Grotius. Contrary to Heinsius’s more neutral approach, Grotius’s philological study of the Bible ran parallel to a sustained polemic over religious politics.

Reading Milton's prose chronologically, there is no way to prepare for the differences between the last antiprelatical tract (April 1642) and the first divorce tract (July 1643) — or, for most readers, between Volume 1 and Volume 2 of the Yale edition of Milton's prose. The earlier, antiprelatical treatises are marked by a Pauline absolutism that will not compound with human weakness as an inevitable condition lying within the bounds of divine forgiveness. But beginning with the first divorce tract and extending through the Areopagitica, Milton confronts with compassion a life of mistake and the inseparability of good and evil in this imperfect world. This transformation can be understood in part by a shift in sources: Whereas the antiprelatical tracts apotheosize the spiritual aristocrats of the Reformation who emphasize difference, the divorce tracts draw on natural law theorists such as Hugo Grotius and John Selden, who emphasize commonality.

This chapter examines collective ownership of the earth as a ground of justice by focusing on Hugo Grotius's De Jure Belli ac Pacis Libri Tres (DJB, Three Books on the Law of War and Peace, 1625), which addresses questions of global scope in a way that develops a standpoint of global public reason. The chapter first explains how reflection on collective ownership enters Grotius's work before discussing how Grotius introduces his views on natural law as well as the collective ownership status of the earth. It then explores how, according to DJB, a morally legitimate system of private ownership law could develop against the background of persisting natural collective ownership rights. It also describes how Grotius uses humanity's collective ownership to constrain what people may do with resources and spaces.

This chapter presents Hugo Grotius as a theorist of immanent order. Uncovering the theological presuppositions of Grotius’s thought suggests that the claims of the ‘Grotian tradition’ of international society are substantially incorrect. Grotius is neither the far-sighted jurist nor the pioneer of modernity that he is typically made out to be. Investigating his conception of God as both rational and free informs a hierarchical and interconnected pattern of order that is luminous to reason, consistent with the theory of immanent order. The chapter argues that, despite being credited with secularizing natural law, Grotius’s thinking about law and rights is accommodated within God’s rational plan of the universe. This leads to two further claims. First, Grotius’s thought is less modern and less secular than it is typically portrayed by theorists of international order. Second, his thought exemplifies one of two poles (the other is represented by Hobbes) between which modern theories of international order oscillate. However, the theory of immanent of order survives mainly as a rhetoric that is set against what is done in the name of will and artifice.

This chapter assesses the rise of modern liberalism by examining the works of selected theorists and their fellow liberal critics. The first section summarizes the origins and subsequent development of modern liberal thinking on the family by examining the works of Hugo Grotius and Johannes Althusius, followed by contractarian (Thomas Hobbes and John Locke) and Kantian revisions. The following two sections contrast the works of leading liberal theorists John Rawls and Susan Moller Okin with critics Peter and Brigitte Berger and Christopher Lasch.

This chapter lays the foundations for considering modern questions on judgement and forcible punishment in international law by analysing approaches to forcible punishment in early modern writings on war and ius post bellum, in which, unlike modern international law texts, issues of punishment of states and peoples were addressed directly. The chapter centres on: the lectures in Spain of the Dominican Thomist Francisco de Vitoria (c.1485–1546), particularly the lectures On War and The Indies given in Salamanca in the 1530s; the writings in Oxford of the Italian Lutheran-influenced civil lawyer Alberico Gentili (1552–1608), particularly De iure belli (1598); and the writings in Holland and in exile of the Dutch-reform ecumenical humanist Hugo Grotius (1583–1645), particularly De iure belli ac pacis (1625–1646). The chapter first considers their general theoretical approaches to punishment as part of just war theory, then turns to explicate their views of punishment in the ius post bellum.

The seventeenth century witnessed the continued rivalry between moral tradition and striking first in the writings of Hugo Grotius and Thomas Hobbes, both of whom likened states to individuals living outside the bounds of civil government. Hobbes called this situation a “state of nature” and argued that striking first out of fear is the permissible and rational response of states not bound to an international Leviathan. Grotius developed a nuanced, multifactor standard for when a state can strike first, grounding his understanding of force and its limits on a moral theory that only weakly supported the account of justice that had always been required by the moral tradition. This chapter examines Grotius's account of anticipatory force in relation to the conversation sparked by Francisco de Vitoria, his application of natural law to prescribe limits on the use of force, Hobbes's contribution to the just fear tradition, and the views of both men regarding self-preservation.

Employs historical analysis and philosophical reasoning to argue that sovereignty is inherently limited. The writings of classical theorists such as Grotius and Vattel indicate that aspirations to sovereignty and non-intervention have always been tempered by considerations above and beyond the state. Philosophically, it must be remembered that sovereignty is a right, and the concept of a right makes no sense in the absence of a corresponding duty. The duties that are constitutive of the rights of sovereignty constrain the behaviour of every sovereign belonging to international society. Two conclusions follow. First, there are limits on how states may treat their own citizens within their own territory. Second, other states face specific limits concerning the ill-treatment of residents within the territory of other states that they are free to ignore. In particular, genocide and massive violations of human rights are a matter of concern for all states in contemporary international society.

John Selden’s Mare Clausum (ca 1618 / 1635) and his London collection of manuscripts, including the Selden Map (ca. 1619) mark important shifts in attempts by those in the circles of London’s Inns of Court to grapple with information exchange on a global scale. Understandings of the importance of history, contractual relations and the law shifted as the dominium of the law took on more importance than the imperium of the sovereign, especially in trying to understand relations among sovereignties in maritime spaces and the stability of exchange practices over time. Selden’s collecting practices for his London library like those at Oxford by Thomas Bodley and Archbishop Laud indicated growing importance of sources on history and law from languages outside of the humanist tradition to answer such questions. Technical instruments played an increasingly important role for thinkers like Selden in establishing what could be translated across languages, historical traditions and legal systems and used to define new laws like the first Navigation Act (1651).

This chapter examines the Scottish legal system's engagement with slavery in the eighteenth century as well as Hugo Grotius' thinking on Stoicism and law and its impact on later jurisprudence. Extensive involvement of Scots with the Empire in British North America, the Caribbean and India led to the presence at home of enslaved men and women of African and Indian descent. This created a number of difficulties and challenges for Scots law. The chapter first provides an overview of the problem of slavery in Scotland, along with Stoicism and Neostoicism, before discussing Grotius' account of natural law. It then considers slavery in Grotius' De iure belli ac pacis libri tres before discussing how arguments from the ius naturale and ius gentium as set out by Grotius could be used to justify slavery. It also analyses four civil cases concerning slavery in eighteenth-century Scotland.

This chapter examines justifications and arguments on the principle of expropriation of land for the common good in Europe and North America between the twelfth and eighteenth centuries. It discusses the nature of property rights and of the apparently assumed priority over them of the good of the community, the authority of the person or persons who ordered the expropriation, and expropriations by lesser authorities or communities. The chapter first considers the right of expropriation based on evidence from twelfth-century Italy, followed by Hugo Grotius's argument basing the right of expropriation firmly on the origin and nature of property rights. It also examines the concept of dominium eminens, or eminent domain, in the sense of property rights during the period.