: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... 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
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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... 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.
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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... 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.’
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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... 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 letter and several references in their work testify. It shows how affinities and differences between their respective positions can be... 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...
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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... 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.
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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... 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.
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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... 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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This article gives an account of late medieval theories and practices of emergency powers. More particularly, it examines the relation between emergency powers and constitutional change. It thus seeks to explain how, in the course of the... more
This article gives an account of late medieval theories and practices of emergency powers. More particularly, it examines the relation between emergency powers and constitutional change. It thus seeks to explain how, in the course of the 13th and 14th centuries, European rulers began using their emergency powers to gradually expand their fiscal and legislative competences at the expense of local authorities and the church. As is demonstrated in this article, it was essentially the normalization of emergency powers that made the transition towards a more centralized government possible. This can be explained by a combination of factors, including the government’s claim to an exclusive right to judge what constituted a public necessity, the new focus on prevention and preparation for future necessities, and the increasing identification of necessity with more general claims to ‘public utility’ and the ‘common welfare’.
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... Ward Berenschot, Gulru Cakmak (Baltimore), Jeroen Gerrits (Baltimore), Rolf Goebel (Huntsville), Yolande Jansen, Sidonie Kellerer (Parijs), Saskia Lourens, Irena Rosenthal, Lars Toender (Chicago), Mar-cus Twellmann (Bonn), Wouter... more
... Ward Berenschot, Gulru Cakmak (Baltimore), Jeroen Gerrits (Baltimore), Rolf Goebel (Huntsville), Yolande Jansen, Sidonie Kellerer (Parijs), Saskia Lourens, Irena Rosenthal, Lars Toender (Chicago), Mar-cus Twellmann (Bonn), Wouter Veraart, Joep van der Vliet en Cara ...
The article analyzes the Roman notion of des publica and its reception by Grotius and Locke. The Romans considered des publica a general standard of behavior for all those invested with state power. It was regarded as a legal norm with... more
The article analyzes the Roman notion of des publica and its reception by Grotius and Locke. The Romans considered des publica a general standard of behavior for all those invested with state power. It was regarded as a legal norm with moral connotations, which applied especially, though not exclusively, to exceptional situations, such as wars. Grotius appears to have been the first since Antiquity to rediscover the notion of des publica as a fundamental norm of public law; for him, it became especially valuable as a criterion for determining the legality of civil war and resistance. This understanding of des was also adopted by Locke, who argued that the people had a right of resistance in case the government structurally violated its trust. Contrary to the dominant view in the literature, this article shows that Locke's concept of trust was influenced not only by peculiarly English ideas about political trusteeship, but also by the Roman notion of des publica.
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The article analyzes the debate on 'constitutional dictatorship' that took place at the first annual conference of the Association of German Constitutional Lawyers in Jena in 1924. In their keynote lectures, Carl Schmitt and Erwin... more
The article analyzes the debate on 'constitutional dictatorship' that took place at the first annual conference of the Association of German Constitutional Lawyers in Jena in 1924. In their keynote lectures, Carl Schmitt and Erwin Jacobi argued that Article 48 of the Weimar Constitution authorized the President of the Reich to derogate from the rule-of-law provisions of the constitution if this was necessary to save its 'political substance'. Advocating a 'doctrine of derogation', they implicitly criticized one of the main methodological assumptions of legal positivism, i.e., that legal norms and politics, law and power, had to remain strictly separated. They thereby set the stage for the emerging 'conflict of methods and directions' that was to haunt German jurisprudence in subsequent years.
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Post 9/11 debate – John Locke important reference – Modern notion, transformation of sovereignty – From legal to political nature of the exception – From temporary to permanent – From preservation of realm to defense of life – Change of... more
Post 9/11 debate – John Locke important reference – Modern notion, transformation of sovereignty – From legal to political nature of the exception – From temporary to permanent – From preservation of realm to defense of life – Change of the experience of time – Locke ambivalent, transition to modern understanding – Necessity, trust and resistance – Logic of exceptionality – Locke's remaining relevancew
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... Ward Berenschot, Gulru Cakmak (Baltimore), Jeroen Gerrits (Baltimore), Rolf Goebel (Huntsville), Yolande Jansen, Sidonie Kellerer (Parijs), Saskia Lourens, Irena Rosenthal, Lars Toender (Chicago), Mar-cus Twellmann (Bonn), Wouter... more
... Ward Berenschot, Gulru Cakmak (Baltimore), Jeroen Gerrits (Baltimore), Rolf Goebel (Huntsville), Yolande Jansen, Sidonie Kellerer (Parijs), Saskia Lourens, Irena Rosenthal, Lars Toender (Chicago), Mar-cus Twellmann (Bonn), Wouter Veraart, Joep van der Vliet en Cara ...
: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... 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
Research Interests:
: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... 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
Research Interests:
: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... 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