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In this chapter, I demonstrate that the declarations of rights that were incorporated into the modern Constitutions relied on a conception of rights that was hostile to democracy. There were various versions of the idea of “natural rights” to which the “founding fathers” subscribed, but the one that prevailed placed rights and citizenship in separate, distant boxes. I also explain, in this chapter, that good part of the prevailing doctrines on the subject are derivations of that original paradigm. Both the idea of rights as “trump cards” that “beat” majority decisions (in Ronald Dworkin’s terms) and the idea that rights constitute a separate sphere (“the sphere of the undecidable” in Luigi Ferrajoli’s work) that must be put out of reach of democracy. According to these prevalent understandings -I claim- rights must be rigorously left to the technical and exclusive care of the judges.
Consent is the issue at the heart of Chapter 3. Peine forte et dure was necessary simply because the English court system required a defendant’s consent before he might be submitted to trial by jury. Without his consent, justices could not proceed to trial. This chapter asks why did English justices see consent as vital, especially when other Europeans did not? It explains that consent was a traditional part of English legal culture, signaled by a defendant’s choice of proofs (compurgation, ordeals, battle). In choosing a method of proof, an accused felon recognized the court’s authority in the matter, and consented to abide by its decision. With the transition from proofs to trial (by jury) that began under Henry II and coalesced with Lateran IV’s abandonment of the ordeal, a defendant’s rights were whittled away. These changes took place against the backdrop of the twelfth-century legal revolution that championed a defendant’s natural rights to legal protection. Thus, while the English may have protested the loss of choice through silence, justices needed a solution that respected both English heritage and a defendant’s rights. That solution was peine forte et dure.
In France, the dominant conception of natural law echoes that of the Ancients, according to which the natural state of humanity is social. Men and their liberty reach their perfection in society. If it is being a citizen that makes a human being, then the rights of a person are those that are recognized for them by political society. The rights of the man are founded upon the rights of the citizen. The American Declaration of Independence, the state bills of rights and the Amendments to the Federal Constitution emerged in a different intellectual atmosphere. A conception of rights as “natural” was dominant in the period that led to the Declaration of Independence. This conception built on a tradition of constitutionalism that emerged in the American colonies in the seventeenth century. If rights are recognized only to the extent that they promote the public good, as is the case in France, then it is legitimate for the state to define the content and limits of freedom of expression. The natural rights philosophy dominant in the United States makes similar limitations illegitimate. Current First Amendment doctrine reflects these ideas.
Grotius lived through a time of great upheaval in Europe as well as in his country of birth, the Dutch Republic. The religious, political and constitutional convulsions that struck the Republic destroyed Grotius' career but also, in combination with fundamental changes in the intellectual outlook of early seventeenth-century Europe formed his views of God, nature, society, politics and law. This chapter introduces the extraordinary polymath Grotius was from the perspective of this background and offers a map to the five parts of this volume, and their respective chapters.
The Cambridge Companion to Grotius offers a comprehensive overview of Hugo Grotius (1583–1645) for students, teachers, and general readers, while its chapters also draw upon and contribute to recent specialised discussions of Grotius' oeuvre and its later reception. Contributors to this volume cover the width and breadth of Grotius' work and thought, ranging from his literary work, including his historical, theological and political writing, to his seminal legal interventions. While giving these various fields a separate treatment, the book also delves into the underlying conceptions and outlooks that formed Grotius' intellectual map of the world as he understood it, and as he wanted it to become, giving a new political and religious context to his forays into international and domestic law.
This chapter surveys the legal history of the term the "protection of the laws," from the writings of the early natural rights thinkers, the American Founders, and Blackstone to Andrew Jackson and antebellum state-level court cases. It argues that the concept of the "protection of the laws," including the "equal protection of the laws," was narrower than modern-day courts maintain: it was about the remedial and protective services supplied by the government and the laws aiming to protect individuals in the exercise of their rights against private interference and private violence.
How did European thinking about interactions with peoples of the Indies move from Christian-infidel relations to an identifiably modern form of international relations? This chapter explores the preceding question by looking at the emergence of Protestant empires during the seventeenth-century and the ascendant neo-Stoic Christian legal humanism structuring new ideas of world order and providential commerce. It considers the growing ideological displacement of the legal category of the infidel, and the associated crime of idolatry, in the political context of the Indies, East but especially West. This chapter also addresses normative ideas about the savage that developed in the infidel’s wake. Although there were important differences between the Iberian empires and the new English and Dutch empires, there were also continuities. This chapter considers those similarities between Spanish religious thinkers and representative international thinkers on natural law and the law of nations such as Alberico Gentili, Hugo Grotius, Samuel Purchas, New England Puritans, and John Locke. What does the colonization of North America look like in light of Valladolid’s legacy from a century earlier?
Before international relations in the West, there were Christian-infidel relations. Infidels and Empires in a New World Order decenters the dominant story of international relations beginning with Westphalia in 1648 by looking a century earlier to the Spanish imperial debate at Valladolid addressing the conversion of native peoples of the Americas. In addition to telling this crucial yet overlooked story from the colonial margins of Western Europe, this book examines the Anglo-Iberian Atlantic to consider how the ambivalent status of the infidel other under natural law and the law of nations culminating at Valladolid shaped subsequent international relations in explicit but mostly obscure ways. From Hernán Cortés to Samuel Purchas, and Bartolomé de las Casas to New England Puritans, a host of unconventional colonial figures enter into conversation with Francisco de Vitoria, Hugo Grotius, and John Locke to reveal astonishing religious continuities and dissonances in early modern international legal thought with important implications for contemporary global society.
Chapter 8 offers comprehensive treatment of Burke’s thoughts on Anglo-Irish commercial relations. Burke was Parliament’s leading proponent of the Irish trade bills in the late 1770s, which were intended to relax commercial restrictions between Ireland and England. In Two Letters of the Trade of Ireland, he argued that free trade granted advantages to the trading nations and produced collective prosperity. Burke’s legislative activities in support of the Irish trade bills also illustrated his famous trustee theory of representation: he was willing to jeopardize his seat in Parliament in pursuit if Irish free trade, a policy goal that upset many Bristol merchants apprehensive about foreign competition. Furthermore, I discuss instances in which Burke did not argue for the maximum amount of free trade, such as his opposition to William Pitt’s commercial propositions and the Anglo-French Treaty of 1786. These cases reveal that Burke took into account other considerations of the British Empire, such as national security, when reflecting on matters of commercial policy. I also challenge the interpretation that Burke was originally a committed adherent of mercantilism. Rather than being a mercantilist or free trade absolutist, he sought to balance a defense of commercial liberty with the imperatives of empire.
In July 2019, Secretary of State Mike Pompeo launched a Commission on Unalienable Rights, charged with a reexamination of the scope and nature of human rights–based claims. From his statements, it seems that Pompeo hopes the commission will substantiate—by appeal to the U.S. Declaration of Independence and to natural law theory—three key conservative ideas: (1) that there is too much human rights proliferation, and once we get things right, social and economic rights as well as gender emancipation and reproductive rights will no longer register as human rights; (2) that religious liberties should be strengthened under the human rights umbrella; and (3) that the unalienable rights that should guide American foreign policy neither need nor benefit from any international oversight. I aim to show that despite Pompeo's framing, the Declaration of Independence, per se, is of no help with any of this, whereas evoking natural law is only helpful in ways that reveal its own limitations as a foundation for both human rights and foreign policy in our interconnected age.
This essay explores the meaning and normative significance of Locke’s depiction of individuals as proprietors of their own person. I begin by reconsidering the long-standing puzzle concerning Locke’s simultaneous endorsement of divine proprietorship and self-ownership. Befuddlement vanishes, I contend, once we reject concurrent ownership in the same object: while God fully owns our lives, humans are initially sole proprietors of their own person. (Our property rights in our life and body are restricted to possession, use, and usufruct.) Locke employs two conceptions of “personhood”: as expressing legal independence vis-à-vis humans and moral accountability vis-à-vis God. Humans own their person in the first sense. As original proprietors of their own person, individuals are entitled to subject themselves to self-chosen authorities, thereby incurring obligations of obedience. But they may not choose just any authority. Divine ownership of human life delimits personal self-ownership by restricting the ways in which humans can dispose of their persons: we cannot possibly consensually subject ourselves to absolute and arbitrary power. Locke’s rights-forfeiture theory for crime makes slavery and despotism nonetheless potentially rightful conditions. I argue that, paradoxically, divine dominium of human life underpins both the impermissibility of voluntary enslavement and the justifiability of penal slavery. My analysis helps explain why modern Lockean theories of self-ownership that reject Locke’s theological premises have adopted an ambiguous stance toward despotic rule.
Scottish moral philosophy was two-sided, concerned partly with the human propensity to certain types of behaviour, partly with our ability to appreciate the moral worth of such behaviour in ourselves and in others. The behavioural aspect seen as – and sometimes called – practical ethics, while the concern with moral judgment was considered to be purely metaphysical and part of the theory of the mind. Natural jurisprudence was the central part of practical ethics that dealt with the virtue of justice understood as the sum of our duties and associated rights, and a central task for this intellectual and academic discipline was to explain why some parts of justice were distinguished from the rest of the virtues by being the subject of the institutions of justice, namely adjudication, law and legislation. All the Scottish thinkers saw themselves as Newtonians concerned with the empirical demonstration of the regularities of the physical and the moral realms, most of them (Hutcheson, Turnbull, the Moderates, the Common Sense thinkers) taking these regularities to be evidence of a divinely instituted order and purpose in the world. Hume and Smith took a different view of the metaphysics of moral and hence of moral science and natural jurisprudence.
James Wilson, born in Scotland and educated during the Scottish Enlightenment, became one of the most influential jurists and statesmen of the American founding era. He signed the Declaration of Independence, served as an influential delegate to the Constitutional Convention, became one of the first justices of the U.S. Supreme Court, and was the first law professor at the University of Pennsylvania. As a framer, jurist and educator, he consistently argued for recognizing the sovereignty of the people themselves, which he believed was a central component of a God-given natural law. Many of Wilson’s views that were innovative or controversial at the time – such as the concepts of popular sovereignty, one person-one vote, and the power of the Supreme Court to strike down unconstitutional laws – have become important elements of modern American government.
Lockean approaches to property take it that persons can unilaterally acquire private ownership over hitherto unowned resources. Such natural law accounts of property rights are often thought to be of limited use when dealing with the complexities of natural resource use outside of the paradigm of private ownership of land for agricultural or residential development. The tragedy of the commons has been shown to be anything but an inevitability, and yet Lockeanism seems to demand that even the most robust common property arrangements be converted to privatized units. This often motivates a move away from natural law in the moral analysis of property rights. I argue however that it is not the deontological nature of Lockean principles that are at fault, but rather the manner of their application. Lockean theory often exhibits a bias in favour of private property: assuming that only private property can protect one’s interest in autonomy, and therefore asserting that each individual has a power of private acquisition. Starting with a claim against interference however enables us to mould the appropriate property rights to each individual’s particular interest in autonomy. This sometimes leads to private ownership, but often leads to various forms of commons.
This chapter focuses on the core text generally recognized as the symbol of America's revolutionary mind and moral theory: the Declaration of Independence. It elucidates the common understanding held by most Americans about concepts such as the laws and rights of nature, while also recognizing those areas where they disagreed. Many eighteenth-century Anglo-American statesmen and jurists understood that the purpose of statutory law was to embody and reflect the law of nature. Following John Locke (1632-1704) and later Enlightenment philosophers, colonial Americans typically defined the law of nature as a dictate of right reason. America's Revolutionary Founders also used the doctrine of natural, unalienable rights in the decade after 1776 as the immovable foundation on which to anchor and permanently fix their constitutional structures. The chapter examines how Jefferson and his fellow Revolutionaries understood what a natural right is.
Montesquieu is most famous for his contribution to the study of political psychology and political architecture. Jean-Jacques Rousseau charged that Montesquieu limited himself to the sphere of positive right and David Hume thought him a rationalist on the model of René Descartes's great Augustinian admirer Nicolas Malebranche. Montesquieu makes clear that organized political society and despotism come much later in time and tend to be coeval with the discovery of agriculture, the institution of property in land, and the invention of coinage. The way of thinking about constitutionalism that Montesquieu bequeathed to the American Founding Fathers was based on an understanding of the state of nature, of objective natural right, and of subjective natural rights fundamentally similar to but not identical with that found in Locke's book. It stands to reason that if we want to understand the present discontents, we should take note of Woodrow Wilson's argument.
Does the prima facie contradiction between the Declaration of Independence's description of the separate and unique “creation” of human beings and Darwin's evolutionary account indicate a broader contradiction between theories of human rights and Darwinian evolution? While similar troubling questions have been raised and answered in the affirmative since Darwin's time, this article renews, updates and significantly fortifies such answers with original arguments. If a “distilled” formulation of the Declaration's central claims, shorn of complicating entanglements with both theology and comprehensive philosophical doctrines, may still be in contradiction with Darwinian evolutionary theory, this should be cause for substantial concern on the part of all normative political theorists, from Straussians to Rawlsians. Despite the notable recent efforts of a few political theorists, evolutionary ethicists and sociobiologists to establish the compatibility of Darwinian evolutionary theory with moral norms such as the idea of natural or human rights, I argue that significant obstacles remain.
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