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

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

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Grotius with the substantive framework to develop his doctrine of subjective natural rights as sketched in the hitherto unpublished early manuscript Theses LVI.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

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

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

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

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

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

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

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

The analysis of a previous paper, in which it was shown that the energy for the Aharonov-Bohm effect could be traced to the interaction energy between the magnetic field of the electron and the background magnetic field, is extended to cover the case in which the magnetic field of the electron is shielded from the background magnetic field by a superconducting material. The paradox that arises from the fact that such a shielding would apparently preclude the possibility of an interaction (...) energy is resolved and, within the limits of the ideal situation considered, the observed experimental result is derived. (shrink)

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

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

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

Starting from the observation that women artists who die by suicide are an object of fascination in Western culture, this article posits the existence of a ›cultural myth of the suicidal authoress‹, which it examines via an analysis of three fictional representations of historical women writers who died by suicide or were suspected of having done so: Christa Wolf’s novella Kein Ort. Nirgends, Werner Schroeter’s film Malina – which is interpreted as a portrait of Ingeborg Bachmann – and Karin Struck’s (...) Ingeborg B.: Duell mit dem Spiegelbild. Drawing on the concept of the diva as developed by Elisabeth Bronfen and Barbara Straumann, it argues that the key to the cultural appeal of the figure of the suicidal women artist lies in what is perceived to be her unusual authenticity: her life and work are perceived to be one, and her suicide is interpreted as a guarantee of her authenticity as both a person and an artist. The article also explores possible reasons for the gendered nature of this myth and asks whether literary or filmic representations of suicidal women artists do an injustice to their subjects by identifying them so persistently with their deaths. (shrink)

The phrase, "state of nature", has been used over centuries to describe the uncultivated state of lands and animals, nudity, innocence, heaven and hell, interstate relations, and the locus of pre- and supra-political rights, such as the right to resistance, to property, to create and leave polities, and the freedom of religion, speech, and opinion, which may be reactivated or reprioritised when the polity and its laws fail. Combining intellectual history with current concerns, this volume brings together fourteen essays on (...) the past, present and possible future applications of the legal fiction known as the state of nature. Contributors are: Daniel S. Allemann, Pamela Edwards, Ioannis D. Evrigenis, Mary C. Fuller, David Singh Grewal, Francesca Iurlaro, Edward J. Kolla, László Kontler, Grant S. McCall, Tom Sparks, Benjamin Straumann, Karl Widerquist, Sarah Winter, and Simone Zurbuchen. (shrink)

In the range of his intellectual interests and the profundity of his mathematical thought Hermann Weyl towered above his contemporaries, many of whom viewed him with awe. This volume, the most ambitious study to date of Weyl's singular contributions to mathematics, physics, and philosophy, looks at the man and his work from a variety of perspectives, though its gaze remains fairly steadily fixed on Weyl the geometer and space‐time theorist. Structurally, the book falls into two parts, described in the general (...) introduction by the editor: Part 1 contains four essays on particular aspects of Weyl's work, highlighting ideas he developed in various editions of his classic Raum‐Zeit‐Materie. Part 2 presents a lengthy study by Robert Coleman and Herbert Korté covering nearly the whole gamut of Weyl's mathematical research, an impressive feat. Both in the introduction as well as in footnotes to the articles Erhard Scholz's editorial voice chimes in discreetly, helping tie all five studies together.Coleman and Korté begin chronologically with Weyl's early work in analysis and the modern theory of Riemann surfaces before turning to differential geometry, unified field theory, and the space problem, a topic they use as a springboard for a discussion of their own recent work on the foundations of space‐time. They then take up Weyl's shift to group representation theory and its applications to quantum mechanics, ending with his much earlier research on the structure of the continuum. All of these topics are well handled, but the authors' own agendas coupled with their penchant for overlooking chronology in order to package Weyl's work into neat little bundles leave one feeling rather stranded and far removed from the sources of Weyl's inspiration. Moreover, the narrative style makes this part of the volume read like a technical appendix, albeit a most informative one. Readers who tackle Scholz's far more contextualized essay will be amply rewarded by comparing his views with the opinions set forth by Coleman and Korté in Part 2.Scholz gives a masterful account of Weyl's intellectual journeys from 1917 to 1925 in a study that serves as a fulcrum for the entire volume. Drawing on a number of recently published studies, including his own, on the interplay between mathematics and physics inspired by Einstein's theory of general relativity, Scholz describes how Weyl responded to this challenge by developing a truly infinitesimal space‐time geometry that generalized classical Riemannian geometry. Although unconvinced by Einstein's critique of his unified field theory, Weyl shifted his focus from this realm to the classical space problem, analyzed earlier with more primitive techniques by Hermann Helmholtz and Sophus Lie. In this connection, it should be mentioned that Thomas Hawkins has given a probing analysis of Weyl's related work on the representation of Lie groups in his tour‐de‐force work, Emergence of the Theory of Lie Groups . Scholz argues that Weyl's struggle to tame his modernized version of the space problem stemmed from a deep‐seated belief in his geometrical ideas, which in turn were nourished by philosophical musings. By demonstrating the closely related conceptual links that motivated Weyl's research in infinitesimal geometry, space‐time physics, and the foundations of mathematics, Scholz nicely illuminates the underlying fabric of epistemological concerns that occupied Weyl's attention during this fertile period.The three remaining essays in Part 1 focus on other aspects of Weyl's work in mathematical physics and cosmology. Skuli Sigurdsson's “Journeys in Spacetime” offers a broad interpretation of Weyl's career, one that emphasizes Weyl's sensitivity to cultural tensions as reflected in his philosophical roots, which combined phenomenology with facets of German idealism. Shaken by the annihilation of cultural values in Nazi Germany, Weyl became deeply aware of the gulf that separated his earlier life in Göttingen and Zurich from the one he took up at Princeton's Institute for Advanced Study in 1933. He tried to adapt, but felt out of place in an Anglo‐American scientific culture openly hostile toward metaphysics and speculative philosophy. Sigurdsson stresses these tensions, contrasting the introspective, creative individual against the backdrop of the collective in the age of the machine, but without spelling out which collective were most important for him. Wolfgang Pauli thought he knew and, like Einstein before him, he had no compunction about bluntly telling Weyl he was a mathematician, not a physicist.Pauli's opinions notwithstanding, Weyl did far more than just dabble around the mathematical edges of the new physics. If Coleman and Korté perhaps press their case for his visionary accomplishments too far, Norbert Straumann's essay “Ursprünge der Eichtheorien” suggests why Weyl's reputation among physicists has risen steadily ever since the advent of Yang‐Mills theory in the 1950s. In the course of describing Weyl's adaptation of his gauge transformation formalism to Dirac's electron theory, Straumann sheds considerable light on Pauli's role as self‐appointed watchman guarding the disciplinary boundary that separated theoretical physics from physical mathematics . He further suggests that disciplinary jealousy was a major reason why Pauli dismissed Weyl's two‐component formalism for spinors out of hand.In the realm of cosmology, on the other hand, Weyl's work has long since passed into the dustbins of history, as Hubert Goenner remarks in recounting a fascinating chapter in the infancy of space‐time physics. While doing so, Goenner shows how initially Weyl almost slavishly adopted what Einstein called Mach's principle, which asserts that the metric structure of space‐time is solely determined by the distribution of matter in the universe. This notion was quickly challenged by Willem De Sitter, who showed that Einstein's matter‐free field equations admitted a global solution with non‐zero constant curvature. Both Einstein and Weyl tried to argue that invisible masses must be present just over the “spatial horizon” of De Sitter's world in order to account for its curvature. Goenner meticulously analyzes the physical and mathematical issues at stake in this debate, stressing how Weyl gradually moved away from a strong physical interpretation to one in which mathematics models rather than physics models simply reveal natural phenomena. He argues further that Weyl's cosmological principle arose as the final expression of his search for a deeper physical meaning.Given the quality of these essays, it is regrettable that this book contains so little about Weyl's professional career, a weakness the editor could have redressed at least partially in his general introduction. This omission is all the more unfortunate given the dearth of readily accessible information about Weyl's life available elsewhere. For however mundane his outward existence may have been, the reader cannot be expected to appreciate the interplay between the world Weyl knew and his creative responses to it without fairly detailed knowledge of his biography. Shorn from these contexts, it becomes difficult to form a flesh‐and‐blood image of Weyl beyond the cliché‐ridden stereotype that sees him as a “heroic thinker in the grand German tradition.” While none of the authors falls into this trap, the collective impression they leave suggests a most enigmatic figure. Either Weyl the man tends to get lost in the shadows of his collected scientific output or he appears as a mystic loner, an outcast who abhorred the machine age in which he lived. Closer attention to the people in his life would no doubt produce a very different picture of the man and his interests. This major lacuna notwithstanding, the present volume will surely remain an indispensable resource for any future investigations of Weyl's staggering intellectual achievements. (shrink)