The Grotian Theology of International Law: Hugo Grotius and the Moral Foundations of International Relations

272 Pages·2006·16.003 MB·German

by  Christoph A. Stumpf

Christoph Α. Stumpf
The Grotian Theology of International Law
W
DE
G
Religion and Society
Edited by
Gustavo Benavides and Kocku von Stuckrad
Volume 44
Walter de Gruyter · Berlin · New York
Christoph Α. Stumpf
The Grotian Theology
of International Law
Hugo Grotius and the Moral Foundations
of International Relations
Walter de Gruyter · Berlin · New York
® Printed on acid-free paper which falls within
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ISBN-13: 978-3-11-019120-2
ISBN-10: 3-11-019120-2
ISSN 1437-5370
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© Copyright 2006 by Walter de Gruyter GmbH & Co. KG, D-10785 Berlin
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Printed in Germany
Cover design: Christopher Schneider, Berlin
Acknowledgments
In writing this book I have received enourmous support from many sides, for
which I am greatly indebted: In particular, I am grateful for the help, support,
and patience of The Revd. Oliver O'Donovan, Regius Professor of Moral and
Pastoral Theology and Canon of Christ Church, who has encouraged and
accompanied my work on Grotius. Gratitude is also due to Professor David
Fergusson of the School of Dinivity of the University of Edinburgh, as well as
to Dr Andrew Hurrell, Department of Politics and International Relations of
the University of Oxford, and furthermore to Dr Karma Nabulsi, Nuffield
College, each of whom has contributed to my work with extremely helpful
advice and counsel. Furthermore, I am thankful to my college, Christ Church,
for providing me with an inspiring environment.
My work has received generous material support from the Fritz-Thyssen-
Stiftung, through a scholarship; from the Becket Institute at St. Hugh's
College, which appointed me as a Junior Scholar; from the Faculty of
Theology; and from my family -1 feel very much obliged to all of them.
I am grateful to the editors of Religion and Society, Professors Gustavo
Benavides and Kocku von Stuckrad, for offering me to publish the book in this
distinguished series. Furthermore, I am indebted to Dr Thomas Thornton who
gave invaluable technical help, as well as to Dr Claus-Jürgen Thornton and Dr
Albrecht Döhnert of Walter de Gruyter who have patiently assisted in the
publication of this book.
I also would like to thank my friends in and beyond Oxford, who en-
couraged me in my work and who made my time in Oxford truly enjoyable.
To name some means to do injustice to others, but still a few need to be
mentioned especially: Kathryn Bevis; my sister-in-law, Dr Zoe Laidlaw; and
my brother, Dr Michael Stumpf; all of whom have helped to shepherd me
through the subtleties of the English language.
Finally, I am grateful for being blessed with the greatest family one could
hope to have, not only when writing books. Hence, I would like to thank my
sister, Alexandra Schörghuber, not only for generous support and extensive
hospitality, but also for being the sister that she is, and my brother, Michael,
who is certainly the best natural scientist one could wish for a brother, but also
a great brother as such. Most of all, I would like to express my sincere
gratitude to my parents, Dr Artnedore Stumpf and Dekan Hans Rudolf
Stumpf, for their unwavering support and never-failing love, which made this
work possible. This book is dedicated to them.
Lübeck-Travemünde, Trinity 2006 Christoph Α. Stumpf

Table of Contents
Introduction 1
Chapter 1: Natural Right 11
I. Introduction 11
II. The Definition of Right 17
1. Right is Nothing but what is Just 19
2. Right as Moral Quality 20
2.1. Faculty as Subjective Right in a Strict Sense 20
2.2. Fitness as Suitability 21
2.3. Right and Justice 22
3. Right as Law 23
4. Conclusion 25
4.1. Right as Obligatory Rules on an Objective Level 25
4.2. Irrelevance of Enforceability of Right 27
III. The Concept of Natural Right 28
1. God as Author of Nature 30
2. The Relationship between Natural Right and Nature 36
3. Recognition of Rules of Natural Right 38
4. The Principles of Natural Right 41
4.1. Expletive Justice 44
4.2. Attributive Justice 46
4.3. Natural Religion 51
5. Natural Rights as Subjective Natural Rights? 58
6. Enforcement of Natural Right 63
6.1. Punishment of Offences against Natural Right in General 64
6.2. Punishment of Offences against Natural Religion 66
IV. Conclusion 68
Chapter 2: Arbitrary Divine Right 71
I. Introduction 71
II. Subcategories of Arbitrary Divine Right 73
1. Arbitrary Divine Right Given to Entire Mankind 73
2. Arbitrary Divine Right Given to a Single Nation 75
III. The Relationship between Natural Right and Arbitrary Divine Right .... 79
viii Table of Contents
IV. Discernibility of Norms of Arbitrary Divine Right 82
V. Basic Principles of Arbitrary Divine Right 86
1. Dogmas 87
2. Precepts 90
VI. Enforcement of Arbitrary Divine Right 94
VII. Conclusion 97
Chapter 3: Human Right and Human Rule 101
I. Introduction 101
II. Categories of Human Right and of Human Rule 104
1. Categories of Human Right 104
2. Categories of Human Rule 108
2.1. The Definition of Civil Power 109
2.2. The Definition of the Sovereign Civil Power 110
III. The Origin of Human Right and of Human Rule 114
1. Human Society as Natural Association of Human Beings 116
2. The Establishment of the State's Authority 118
IV. Human Right and Human Rule in the Framework of Divine Right 123
1. Interrelations between Human Right and Divine Right 125
2. The Scope of Human Rule 126
2.1. Unity of Matter 130
2.2. Unity of Authority 134
2.3. Unity of Power 137
V. The Organisation of Authority 144
1. The People and the Sovereign Power 146
2. The Relationship between Rulers and Citizens 149
2.1. The Competence of the State to Limit the Freedom
of the Citizens 149
2.2. Legal Obligations of the Citizens to Their Ruler 150
2.3. Rights of the Citizens in Relation to the State 152
VI. Conclusion 157
Chapter 4: Proprietary Rights 163
I. Introduction 163
II. Categories of Proprietary Rights 167
III. Origin and Function of Proprietary Rights 169
1. Origin of Proprietary Rights 169
2. Function of Proprietary Rights 173
IV. Acquisition and Termination of Proprietary Rights 176
1. Acquisition of Proprietary Rights 176
Table of Contents ix
1.1. Original Acquisition of Proprietary Rights 176
1.2. Derivative Acquisition of Proprietary Rights 181
2. Termination of Proprietary Rights 183
2.1. Termination of the Holder of the Proprietary Right 183
2.2. Abandonment of Proprietary Rights 186
V. Limitations of Proprietary Rights 190
1. Limitations of Proprietary Rights in Cases of Emergency 191
2. Harmless Use 192
VI. Conclusion 198
Chapter 5: Right to War and Right in War 201
I. Introduction 201
II. Categories of War 205
1. Private Wars 206
2. Public Wars 208
III. Legitimacy of War 209
1. Legitimacy of War under Natural Right 209
2. Legitimacy of War under Arbitrary Divine Right 211
IV. Right to War 215
1. Just Authority 216
2. Just Reason 218
2.1. Clearly Just Reasons 218
2.2. Unjust Reasons 224
2.3. Dubious Reasons 225
3. War as Appropriate Means 226
4. Just Intention 228
V. Right in War 230
1. General Rules of the Right in War 230
2. Critique of Practice 232
2.1. Killing the Enemy 233
2.2. The Treatment of the Enemy's Proprietary Rights 235
VI. Conclusion 238
Conclusion 241
Bibliography 245
I. Grotiana 245
II. Other Works 245
Index of Names 255
Index of Subjects 257