:This article analyzes the critical dialogue between Walter Benjamin and Carl Schmitt, to which a... more :This article analyzes the critical dialogue between Walter Benjamin and Carl Schmitt, to which a letter and several references in their work testify. It shows how affinities and differences between their respective positions can be explained from a shared theologico-political approach. Both authors believe that, in spite of secularization, political phenomena can only be adequately understood in light of certain
General rights Copyright and moral rights for the publications made accessible in the public port... more General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal ? Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim.
Journal of the History of International Law / Revue d’histoire du droit international
The article examines a series of letters written by Hugo Grotius to East-Indian rulers on behalf ... more The article examines a series of letters written by Hugo Grotius to East-Indian rulers on behalf of the Dutch East India Company (VOC). Drafts of these letters have been preserved at the Dutch National Archives. In his letters, Grotius developed several new ideas about alliances with non-Christians, which would later be included in his writings on natural law and the law of nations. He addressed the non-Christian rulers of the East Indies as sovereigns. He argued that the Dutch had a right to protect their non-Christian allies, even against other Christians, such as the Spaniards and Portuguese. Crucially, Grotius developed a justification for the VOC’s monopoly on the spice trade, which he defended as a just compensation for the expenses it had incurred in ‘liberating’ its East-Indian allies from Iberian ‘tyranny’. He thereby provided a legal framework for the VOC’s ‘informal empire’ in the East Indies.
This article examines what limitations to private property John Locke recognizes to protect the r... more This article examines what limitations to private property John Locke recognizes to protect the rights of the poor. As has been pointed out in the literature, Locke’s ideas on the limitations to private property have been influenced by medieval discussions about the rights of the poor and the principle of extreme necessity. Confirming this interpretation, the article shows that Locke borrows the distinction between ‘ordinary need’ and ‘evident and urgent necessity’ from Thomas Aquinas. Taking position in a debate among Grotius and Pufendorf, Locke argues that the poor have a natural right to the ‘surplus’ of somebody else’s possessions, and that this right becomes legally enforceable in case of ‘evident and urgent necessity.’
David Luban has written a fascinating paper on the concept of the hostis humani generis, the ‘ene... more David Luban has written a fascinating paper on the concept of the hostis humani generis, the ‘enemy of all humanity.’1 He traces this concept back to Cicero, who argued that ‘a pirate is not included in the number of lawful enemies, but is the common enemy of all [communis hostis omnium].’2 As Luban explains, Cicero’s concept would have a remarkable career in legal history, being applied not only to pirates, but to all kinds of villains, including professional poisoners, assassins, incendiaries, tyrants, ruthless aggressors, and slave traders. In our own time, perpetrators of international core crimes such as torturers and génocidaires have been identified as ‘enemies of all humanity.’ Therefore, Luban believes that the ‘enemy of all humanity’ is still a useful and indispensable legal concept, especially in the field of international criminal law. He claims that no other concept ‘quite captures the twin nature of atrocity and persecution crimes that makes the idea of international c...
This article analyzes the critical dialogue between Walter Benjamin and Carl Schmitt, to which a ... more This article analyzes the critical dialogue between Walter Benjamin and Carl Schmitt, to which a letter and several references in their work testify. It shows how affinities and differences between their respective positions can be explained from a shared theologico-political approach. Both authors believe that, in spite of secularization, political phenomena can only be adequately understood in light of certain theological concepts, images, and metaphors. However, they explain these theologico-political analogies differently. Whereas Schmitt advocates the authoritarian state, which he compares to God’s omnipotence, Benjamin endorses the proletarian revolution, in which he recognizes traces of a divine law-destroying violence. Challenging existing interpretations, this article shows how the political theologies of Benjamin and Schmitt are not static but developed in the course of their dialogue, in which both authors respond to each other’s criticism by changing and correcting their...
Journal of the History of International Law / Revue d’histoire du droit international, 2019
Hugo Grotius is often identified as the founder of the modern concept of asylum. This article arg... more Hugo Grotius is often identified as the founder of the modern concept of asylum. This article argues that Grotius’s most innovative contribution was not his theory of asylum, but his concept of expulsion, and more particularly, his notion that a permanent refuge should be offered to foreigners who had been collectively expelled on religious grounds. The article shows that Grotius’s notion was informed by his own experiences as a lawyer advocating the admission of Sephardi Jews, who had been expelled from Spain and Portugal, to the Dutch provinces. More particularly, it was based on a reinterpretation of Francisco de Vitoria’s concept of the ‘law of hospitality’ and the duty to admit foreigners irrespective of their religious beliefs. Reinterpreting Vitoria’s concept, Grotius was the first to formulate a theory regarding the state’s responsibility to offer a permanent refuge to victims of (religious) persecution.
This article seeks to explain why the Roman dictatorship, which had served as a positive model of... more This article seeks to explain why the Roman dictatorship, which had served as a positive model of constitutional emergency government until the French Revolution, acquired a negative meaning during the Revolution itself. Both Montesquieu and Rousseau regarded the dictatorship as a legitimate institution, necessary to protect the republic in times of crisis. For the French revolutionaries, the word 'dictatorship' acquired negative connotations: it became a rhetorical tool for accusing their political opponents of authoritarian rule. This article argues that Carl Schmitt's distinction between commissarial and sovereign dictatorship is unhelpful for understanding why the dictatorship was rejected by the French revolutionaries. Instead, it shows that it was the early identification with Montesquieu's aristocratic dictatorship, which caused the delegates of the National Assembly to reject it as a threat to popular sovereignty. The exception was Marat, who proposed to establish a popular dictatorship à la Rousseau to purge the state from counterrevolutionary forces. However, Marat's proposal found little support with his fellow-Jacobins, as it allowed the Girondins to accuse them of a conspiracy against the Convention. This caused the Jacobins to reject the dictatorship altogether and to propose alternative models of emergency government.
Summary This article provides an analysis of an unpublished manuscript of Hugo Grotius, entitled ... more Summary This article provides an analysis of an unpublished manuscript of Hugo Grotius, entitled De societate publica cum infidelibus, ‘On public partnership with infidels’. In the text, Grotius examines the legal conditions under which Christians may enter into treaties and alliances with non-Christians. Grotius’s text has been interpreted by Peter Borschberg and Martine van Ittersum as a justification of the Dutch commercial and military policies in the East Indies. However, as this article shows, Grotius probably conceived of De societate as a more general treatise, which related not only to the East Indian context, but also to the domestic debate about the legal position of non-Christians in the Dutch Republic. The same arguments that served as a justification for overseas expansionism could thus serve as a justification for religious toleration in the domestic context.
This article analyzes and compares the institutionalist theories of law developed by Santi Romano... more This article analyzes and compares the institutionalist theories of law developed by Santi Romano and Carl Schmitt. In the early 1930s, Schmitt referred to Romano to explain his own conversion to an institutionalist jurisprudence, which he preferred to call 'concrete order thinking'. Both Romano and Schmitt criticized the normativist approach to law characteristic of legal positivism. Instead, they developed an institutionalist approach that regarded legal norms as secondary phenomena, pointing at the importance of the underlying institutional order, which shaped and informed these norms. More particularly, both Romano and Schmitt believed that the crisis of the modern state could only be overcome by recognizing the juristic character of non-state institutions and their legal orders. However, unlike Romano, Schmitt used 'concrete order thinking' to advocate an ideological reinterpretation of law: he thus presented the National-Socialist Führerprinzip as a 'great example' of 'concrete order thinking' and called upon German judges to reinterpret the socalled 'general clauses' in statutes in line with the National-Socialist ideology. While Schmitt developed 'concrete order thinking' into a theoretical justification of the totalitarian state, Romano emphasized the neutral and descriptive character of his institutionalist theory. Unlike Schmitt, he concluded that non-state institutions and their legal orders could never be completely incorporated into the state, but continued to exist and develop in its shadows.
Jean-Jacques Rousseau devoted an important chapter of his Social Contract to the dictatorship. Ca... more Jean-Jacques Rousseau devoted an important chapter of his Social Contract to the dictatorship. Carl Schmitt interpreted Rousseau's chapter as marking the transition from 'commissarial' to 'sovereign dictatorship'. This article argues that Schmitt's interpretation is historically and conceptually inaccurate. Instead of paving the way for sovereign dictatorship, Rousseau carefully distinguished the dictatorship from the people's sovereign authority. Taking position in the 'debate' between Bodin and Grotius on the relation between dictatorship and sovereignty, he argued that the dictator could provisionally suspend the people's sovereign authority, but not abolish it. More particularly, the dictator did not possess the power to make generally binding laws, which had to remain the exclusive authority of the popular assembly. However, this did not prevent Rousseau from recognizing the dictatorship as a means for democratic reform. Rousseau thus conceived of the dictatorship as a time-limited and revocable commission to protect the constitution and to provide for a more stable and effective state organization based on the principle of popular sovereignty.
Hannah Arendt, Eichmann in Jerusalem 1 'To confiscate the word humanity, to invoke and monopolize... more Hannah Arendt, Eichmann in Jerusalem 1 'To confiscate the word humanity, to invoke and monopolize such a term probably has certain incalculable effects, such as denying the enemy the quality of being human and declaring him to be an outlaw of humanity; and a war can thereby be driven to the most extreme inhumanity.' Carl Schmitt, The Concept of the Political 2 Apart from pain and death and the natural forces that cause them, can there be such a thing as an enemy of all humanity? Can a human being be an enemy of all humanity? Or might it be that the ancient formula 'enemy of all humanity' (hostis generis humani) is-as Carl Schmitt warns in the epigraph-so dangerous that it is itself an enemy of all humanity? For that matter, what is 'humanity'? These are questions I take up in this paper. * Thanks to Brett Goodin, Jenny Martinez, and Sam Moyn for guidance, and to Kevin Jon Heller and Sarah Nouwen for their suggestions. I was aided and inspired by Daniel Heller-Roazen's fascinating book The Enemy of All: Piracy and the Law of Nations (New York: Zone Books, 2009). I have also drawn throughout on Alfred P. Rubin, The Law of Piracy, rev. ed.
Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review
In 1615, the States of Holland and West-Vriesland commissioned Hugo Grotius to draft a set of leg... more In 1615, the States of Holland and West-Vriesland commissioned Hugo Grotius to draft a set of legal regulations for the Jews in their province. This article analyzes Grotius’s draft, entitled Remonstrance. It examines how Grotius understood and justified the rights of Jews and to what extent his approach was novel. More particularly, it shows how Grotius developed the concept of a natural duty to offer hospitality to strangers to advocate admission and toleration of Jews. He borrowed this concept from the sixteenth-century jurist and theologian Francisco de Vitoria, who had used it to justify the Spanish colonization of the Americas. While Vitoria had suggested that the Indians had violated their natural duty to offer hospitality to strangers by refusing to admit the Spanish merchants to their lands, Grotius argued that the provinces of Holland and West-Vriesland had a natural duty to offer hospitality to the Jews who had been expelled from their communities for religious reasons. U...
:This article analyzes the critical dialogue between Walter Benjamin and Carl Schmitt, to which a... more :This article analyzes the critical dialogue between Walter Benjamin and Carl Schmitt, to which a letter and several references in their work testify. It shows how affinities and differences between their respective positions can be explained from a shared theologico-political approach. Both authors believe that, in spite of secularization, political phenomena can only be adequately understood in light of certain
General rights Copyright and moral rights for the publications made accessible in the public port... more General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal ? Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim.
Journal of the History of International Law / Revue d’histoire du droit international
The article examines a series of letters written by Hugo Grotius to East-Indian rulers on behalf ... more The article examines a series of letters written by Hugo Grotius to East-Indian rulers on behalf of the Dutch East India Company (VOC). Drafts of these letters have been preserved at the Dutch National Archives. In his letters, Grotius developed several new ideas about alliances with non-Christians, which would later be included in his writings on natural law and the law of nations. He addressed the non-Christian rulers of the East Indies as sovereigns. He argued that the Dutch had a right to protect their non-Christian allies, even against other Christians, such as the Spaniards and Portuguese. Crucially, Grotius developed a justification for the VOC’s monopoly on the spice trade, which he defended as a just compensation for the expenses it had incurred in ‘liberating’ its East-Indian allies from Iberian ‘tyranny’. He thereby provided a legal framework for the VOC’s ‘informal empire’ in the East Indies.
This article examines what limitations to private property John Locke recognizes to protect the r... more This article examines what limitations to private property John Locke recognizes to protect the rights of the poor. As has been pointed out in the literature, Locke’s ideas on the limitations to private property have been influenced by medieval discussions about the rights of the poor and the principle of extreme necessity. Confirming this interpretation, the article shows that Locke borrows the distinction between ‘ordinary need’ and ‘evident and urgent necessity’ from Thomas Aquinas. Taking position in a debate among Grotius and Pufendorf, Locke argues that the poor have a natural right to the ‘surplus’ of somebody else’s possessions, and that this right becomes legally enforceable in case of ‘evident and urgent necessity.’
David Luban has written a fascinating paper on the concept of the hostis humani generis, the ‘ene... more David Luban has written a fascinating paper on the concept of the hostis humani generis, the ‘enemy of all humanity.’1 He traces this concept back to Cicero, who argued that ‘a pirate is not included in the number of lawful enemies, but is the common enemy of all [communis hostis omnium].’2 As Luban explains, Cicero’s concept would have a remarkable career in legal history, being applied not only to pirates, but to all kinds of villains, including professional poisoners, assassins, incendiaries, tyrants, ruthless aggressors, and slave traders. In our own time, perpetrators of international core crimes such as torturers and génocidaires have been identified as ‘enemies of all humanity.’ Therefore, Luban believes that the ‘enemy of all humanity’ is still a useful and indispensable legal concept, especially in the field of international criminal law. He claims that no other concept ‘quite captures the twin nature of atrocity and persecution crimes that makes the idea of international c...
This article analyzes the critical dialogue between Walter Benjamin and Carl Schmitt, to which a ... more This article analyzes the critical dialogue between Walter Benjamin and Carl Schmitt, to which a letter and several references in their work testify. It shows how affinities and differences between their respective positions can be explained from a shared theologico-political approach. Both authors believe that, in spite of secularization, political phenomena can only be adequately understood in light of certain theological concepts, images, and metaphors. However, they explain these theologico-political analogies differently. Whereas Schmitt advocates the authoritarian state, which he compares to God’s omnipotence, Benjamin endorses the proletarian revolution, in which he recognizes traces of a divine law-destroying violence. Challenging existing interpretations, this article shows how the political theologies of Benjamin and Schmitt are not static but developed in the course of their dialogue, in which both authors respond to each other’s criticism by changing and correcting their...
Journal of the History of International Law / Revue d’histoire du droit international, 2019
Hugo Grotius is often identified as the founder of the modern concept of asylum. This article arg... more Hugo Grotius is often identified as the founder of the modern concept of asylum. This article argues that Grotius’s most innovative contribution was not his theory of asylum, but his concept of expulsion, and more particularly, his notion that a permanent refuge should be offered to foreigners who had been collectively expelled on religious grounds. The article shows that Grotius’s notion was informed by his own experiences as a lawyer advocating the admission of Sephardi Jews, who had been expelled from Spain and Portugal, to the Dutch provinces. More particularly, it was based on a reinterpretation of Francisco de Vitoria’s concept of the ‘law of hospitality’ and the duty to admit foreigners irrespective of their religious beliefs. Reinterpreting Vitoria’s concept, Grotius was the first to formulate a theory regarding the state’s responsibility to offer a permanent refuge to victims of (religious) persecution.
This article seeks to explain why the Roman dictatorship, which had served as a positive model of... more This article seeks to explain why the Roman dictatorship, which had served as a positive model of constitutional emergency government until the French Revolution, acquired a negative meaning during the Revolution itself. Both Montesquieu and Rousseau regarded the dictatorship as a legitimate institution, necessary to protect the republic in times of crisis. For the French revolutionaries, the word 'dictatorship' acquired negative connotations: it became a rhetorical tool for accusing their political opponents of authoritarian rule. This article argues that Carl Schmitt's distinction between commissarial and sovereign dictatorship is unhelpful for understanding why the dictatorship was rejected by the French revolutionaries. Instead, it shows that it was the early identification with Montesquieu's aristocratic dictatorship, which caused the delegates of the National Assembly to reject it as a threat to popular sovereignty. The exception was Marat, who proposed to establish a popular dictatorship à la Rousseau to purge the state from counterrevolutionary forces. However, Marat's proposal found little support with his fellow-Jacobins, as it allowed the Girondins to accuse them of a conspiracy against the Convention. This caused the Jacobins to reject the dictatorship altogether and to propose alternative models of emergency government.
Summary This article provides an analysis of an unpublished manuscript of Hugo Grotius, entitled ... more Summary This article provides an analysis of an unpublished manuscript of Hugo Grotius, entitled De societate publica cum infidelibus, ‘On public partnership with infidels’. In the text, Grotius examines the legal conditions under which Christians may enter into treaties and alliances with non-Christians. Grotius’s text has been interpreted by Peter Borschberg and Martine van Ittersum as a justification of the Dutch commercial and military policies in the East Indies. However, as this article shows, Grotius probably conceived of De societate as a more general treatise, which related not only to the East Indian context, but also to the domestic debate about the legal position of non-Christians in the Dutch Republic. The same arguments that served as a justification for overseas expansionism could thus serve as a justification for religious toleration in the domestic context.
This article analyzes and compares the institutionalist theories of law developed by Santi Romano... more This article analyzes and compares the institutionalist theories of law developed by Santi Romano and Carl Schmitt. In the early 1930s, Schmitt referred to Romano to explain his own conversion to an institutionalist jurisprudence, which he preferred to call 'concrete order thinking'. Both Romano and Schmitt criticized the normativist approach to law characteristic of legal positivism. Instead, they developed an institutionalist approach that regarded legal norms as secondary phenomena, pointing at the importance of the underlying institutional order, which shaped and informed these norms. More particularly, both Romano and Schmitt believed that the crisis of the modern state could only be overcome by recognizing the juristic character of non-state institutions and their legal orders. However, unlike Romano, Schmitt used 'concrete order thinking' to advocate an ideological reinterpretation of law: he thus presented the National-Socialist Führerprinzip as a 'great example' of 'concrete order thinking' and called upon German judges to reinterpret the socalled 'general clauses' in statutes in line with the National-Socialist ideology. While Schmitt developed 'concrete order thinking' into a theoretical justification of the totalitarian state, Romano emphasized the neutral and descriptive character of his institutionalist theory. Unlike Schmitt, he concluded that non-state institutions and their legal orders could never be completely incorporated into the state, but continued to exist and develop in its shadows.
Jean-Jacques Rousseau devoted an important chapter of his Social Contract to the dictatorship. Ca... more Jean-Jacques Rousseau devoted an important chapter of his Social Contract to the dictatorship. Carl Schmitt interpreted Rousseau's chapter as marking the transition from 'commissarial' to 'sovereign dictatorship'. This article argues that Schmitt's interpretation is historically and conceptually inaccurate. Instead of paving the way for sovereign dictatorship, Rousseau carefully distinguished the dictatorship from the people's sovereign authority. Taking position in the 'debate' between Bodin and Grotius on the relation between dictatorship and sovereignty, he argued that the dictator could provisionally suspend the people's sovereign authority, but not abolish it. More particularly, the dictator did not possess the power to make generally binding laws, which had to remain the exclusive authority of the popular assembly. However, this did not prevent Rousseau from recognizing the dictatorship as a means for democratic reform. Rousseau thus conceived of the dictatorship as a time-limited and revocable commission to protect the constitution and to provide for a more stable and effective state organization based on the principle of popular sovereignty.
Hannah Arendt, Eichmann in Jerusalem 1 'To confiscate the word humanity, to invoke and monopolize... more Hannah Arendt, Eichmann in Jerusalem 1 'To confiscate the word humanity, to invoke and monopolize such a term probably has certain incalculable effects, such as denying the enemy the quality of being human and declaring him to be an outlaw of humanity; and a war can thereby be driven to the most extreme inhumanity.' Carl Schmitt, The Concept of the Political 2 Apart from pain and death and the natural forces that cause them, can there be such a thing as an enemy of all humanity? Can a human being be an enemy of all humanity? Or might it be that the ancient formula 'enemy of all humanity' (hostis generis humani) is-as Carl Schmitt warns in the epigraph-so dangerous that it is itself an enemy of all humanity? For that matter, what is 'humanity'? These are questions I take up in this paper. * Thanks to Brett Goodin, Jenny Martinez, and Sam Moyn for guidance, and to Kevin Jon Heller and Sarah Nouwen for their suggestions. I was aided and inspired by Daniel Heller-Roazen's fascinating book The Enemy of All: Piracy and the Law of Nations (New York: Zone Books, 2009). I have also drawn throughout on Alfred P. Rubin, The Law of Piracy, rev. ed.
Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review
In 1615, the States of Holland and West-Vriesland commissioned Hugo Grotius to draft a set of leg... more In 1615, the States of Holland and West-Vriesland commissioned Hugo Grotius to draft a set of legal regulations for the Jews in their province. This article analyzes Grotius’s draft, entitled Remonstrance. It examines how Grotius understood and justified the rights of Jews and to what extent his approach was novel. More particularly, it shows how Grotius developed the concept of a natural duty to offer hospitality to strangers to advocate admission and toleration of Jews. He borrowed this concept from the sixteenth-century jurist and theologian Francisco de Vitoria, who had used it to justify the Spanish colonization of the Americas. While Vitoria had suggested that the Indians had violated their natural duty to offer hospitality to strangers by refusing to admit the Spanish merchants to their lands, Grotius argued that the provinces of Holland and West-Vriesland had a natural duty to offer hospitality to the Jews who had been expelled from their communities for religious reasons. U...
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