Jus Pacis Ac Belli? Prolegomena to a Sociology of International Law

1943 ◽  
Vol 37 (3) ◽  
pp. 460-479 ◽  
Author(s):  
Schwarzenberger Georg
Keyword(s):  
International Law ◽  
Formative Period ◽  
Law Of War ◽  
Traditional System ◽  
The Law ◽  
Sociological Approaches ◽  
Peace And War

The traditional system of international law is based on the distinction between the law of peace and the law of war. In the formative period of international law, thinkers were fully aware of the problems hidden behind this classification. Positivist writers took over these conceptions, framed against the background of a philosophical vista of society. Yet in their hands these terms lost their original significance. It is the purpose of this investigation to throw light on this process and to consider the relevance of this dichotomy into peace and war for the positivist and sociological approaches to international law.

Questions of Guerrilla Warfare in the Law of War

1946 ◽  
Vol 40 (3) ◽  
pp. 534-562 ◽  
Author(s):  
I. P. Trainin
Keyword(s):  
International Law ◽  
Guerrilla Warfare ◽  
Law Of War ◽  
History Of ◽  
The Law ◽  
The Moment

The history of war knows no such brigandage, fanaticism, or such craftiness as the German fascist usurpers practiced from the moment of their attack upon the peoples of other states. The rules and customs relating to the conduct of war, recognized by all civilized peoples, were rejected and trampled under foot by these usurpers. These rules and customs relating to the conduct of war, put together in the course of many centuries, have received the title “the law of war” and constitute an inseparable part of international law.

Sources in the Modern Tradition

2018 ◽  
Author(s):  
Dominique Gaurier
Keyword(s):  
International Law ◽  
Canon Law ◽  
Life Experiences ◽  
Legal Issues ◽  
Legal Knowledge ◽  
War And Peace ◽  
Law Of War ◽  
The Bible ◽  
Intellectual Context ◽  
The Law

This chapter observes that early writers on the law of war or on the law of peace offered their contributions in an intellectual context that was very different from our own. They were attempting to provide explanations for the questions related to war and peace, and in doing so drew upon interesting elements in Roman or canon law. Yet, none of the sources available to them were sufficient to offer a comprehensive response to related legal issues. Although these authors were all largely relying on the Bible and on ancient or contemporaneous history, some also drew information from their own life experiences. The majority, however, built their theories on the basis of their own readings and legal knowledge. Furthermore, only very few authors addressed the question of the sources of international law.

The Paradox of “Just War” in Rousseau's Theory of Interstate Relations

2015 ◽  
Vol 109 (2) ◽  
pp. 314-325 ◽  
Author(s):  
BLAISE BACHOFEN
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Just War ◽  
The State ◽  
Interstate Relations ◽  
Law Of War ◽  
The Rule Of Law ◽  
External Relations ◽  
The Law ◽  
Utopian Theory

In theSocial Contract, Rousseau declares that he has given up the idea of discussing the “external relations” of states. Yet numerous texts—including a recently reconstituted work about the law of war—show that he thought very seriously about the question of the nature and origin of war and of the possibility of making war subject to the rule of law. Rousseau, in contrast to Hobbes, links war's appearance to that of the sovereign states; the state of war is therefore the necessary result of international relations. Moreover, he considers the international law as chimerical. How can he then conceive a non-utopian theory of “just war”? My hypothesis is that his conception of the law of war is deduced from principles of internal political law and arises from pragmatic necessity. The state that discredits itself in its manner of waging war weakens itself while believing that it is reinforcing itself.

The Influence of the Law of Nature Upon International Law in the United States

1909 ◽  
Vol 3 (3) ◽  
pp. 547-561 ◽  
Author(s):  
Jesse S. Reeves
Keyword(s):  
International Law ◽  
Modern Science ◽  
The United States ◽  
Natural Rights ◽  
Roman Law ◽  
Traditional System ◽  
Law Of Nature ◽  
Law Of Nations ◽  
The Law ◽  
Scholastic Philosophy

The political philosophers of the eighteenth century might have been surprised if told that their favorite doctrine of natural rights was the intellectual successor of certain theories of the Roman law and of the scholasticism of Saint Thomas Aquinas. Yet the “ state of nature,” which filled so large a place in the discussion of natural rights, has been called “ an exaggerated perversion of what, in traditional system, was quite a subordinant point” From Locke to Hooker, and back through the scholastic philosophy, the germ of natural rights has been traced to the jus naturœ and the jus gentium of the Roman law. Grotius and his successors preserved the tradition in another and more direct line. The continuity of Grotius with the doctrine of the Roman law was complete. “ The law of nature,” said Holland, “ is the foundation, or rather the scaffolding, upon which the modern science of International Law was built up by Gentilis and Grotius. The change in the meaning of jus gentium made by Grotius and his successors, and the influence which the jus naturœ had in forming the new conception of the law of nations can only be referred to here.

Lawful Murder: Unnecessary Killing in the Law of War

2012 ◽  
Vol 25 (2) ◽  
pp. 417-446 ◽  
Author(s):  
Samuel G. Walker
Keyword(s):  
International Law ◽  
Pragmatic Approach ◽  
Right To Life ◽  
Human Right ◽  
Law Of War ◽  
The Law ◽  
Do So

The international law of war limits the use of violence, largely through protections afforded to civilians. However, the law provides no principled limit on the taking ofcombatantlife — soldiers may be killed even if to do so would contribute absolutely no military advantage. This permissive approach to unnecessary killing has deep historical roots in the philosophy of the law of war. Three justifications for unnecessary killing have been advanced: a robust notion of sovereignty that views the soldier as a disposable molecule of a greater being; the idea that soldiers are ‘guilty’ and deserve what befalls them in war; and a pragmatic approach holding that limits on gratuitous violence are both impossible to implement in practice as well as harmful. None of these arguments are persuasive in light of the contemporary consensus that there is a human right to life that ought to be respected at all times, even in war. A rule of “combatant proportionality” should therefore be formally incorporated into the law of war.

International Law and the Common Knowledge Requirements of Cross-Domain Deterrence

2019 ◽  
pp. 187-204
Author(s):  
James D. Morrow
Keyword(s):  
Cold War ◽  
International Law ◽  
Common Knowledge ◽  
Nuclear Deterrence ◽  
Major Barrier ◽  
Law Of War ◽  
Cross Domain ◽  
Knowledge Requirements ◽  
The Common ◽  
The Law

The complexity of cross-domain deterrence is a major barrier to establishing coordinated expectations about violations and consequences. For a system of cross-domain deterrence to work, actors must understand what actions will trigger a response, what the response is likely to be, and how willing the respondent is to act. Any such system is likely to be less robust than Cold War nuclear deterrence because of the number of domains involved, constraints on revealing secret capabilities or even the identity of the challenger, and a propensity for provocations that fall below the established threshold of response. This chapter recommends using an analogy to the law of war rather than to nuclear deterrence to understand the possibilities of setting up a workable regime of cross-domain deterrence, even as the author is pessimistic about the ability of any collective regime to adequately manage the complexity of cross-domain deterrence.

International Law as Applied by England in the War

1915 ◽  
Vol 9 (1) ◽  
pp. 17-44
Author(s):  
E. Grey ◽  
Norman Bentwich
Keyword(s):  
International Law ◽  
World Wide ◽  
Great Powers ◽  
Law Of War ◽  
Uniform Law ◽  
The Law ◽  
International Conventions

International law is at once on its trial and in the moulding as it has never been before. It is just a hundred years since the last world-wide war was fought; and to that period one must go back to trace the source of the principal rules and practices of the law of war, and especially of maritime warfare. In the interval, the form of international law and much of its substance have been entirely changed. From indefinite practice and varying usage, imperfectly systematized by text writers, it has passed into the condition of definite rules and uniform law, formulated by international conventions. But most of this definite law has not yet stood the test of practice. So far as the rules of maritime warfare are concerned, it is largely consolidated in conventions made at international conferences during the last seven years. These conventions have indeed been already applied in the war of Italy and the Balkan Powers against Turkey, but they were not searchingly tried in those contests, which were determined by land operations. Strictly, the conventions are not binding in this war, because they are intended to apply only in wars in which all the belligerents are parties, and Servia and Montenegro have not ratified any of the 1907 agreements; but, in fact, the great Powers are professing* to act according to the international legislation.

Beyond the Law. The Image of Piracy in the Legal Writings of Hugo Grotius

Grotiana ◽  
2007 ◽  
Vol 26 (1) ◽  
pp. 379-395
Author(s):  
Michael Kempe
Keyword(s):  
International Law ◽  
Legal Status ◽  
Methodological Approach ◽  
Hugo Grotius ◽  
Asking Questions ◽  
The Law ◽  
Theory Of Law ◽  
The Right ◽  
Peace And War ◽  
Two Sides

AbstractIt is still underestimated to what extent in his main works Hugo Grotius not only sketched and developed a system of private, state and international law; but also outlined a general philosophy or theory of law. By asking questions concerning the law of property, the law of prize and booty, the law of peace and war or the legal status of sovereignty he did not only refer to the 'right side', i.e. to actions that can be labelled as rightful and legal. He also dealt with many aspects of what is not right and unlawful, not limiting himself to just give mere examples of crossing the border to the 'non right side'. It was a part of Grotius's methodological approach to systematically reflect on the law from the perspective of its violations. One example of such a violation is the act of piracy and the figure of the pirate. To outline this is the aim of the following article. By showing that the pirate and his 'legal twin', the privateer, were belong together as two sides of the same coin, they come to symbolise in an exemplary way the differentiation between 'right' and 'non right' as the unity of law in the legal philosophy of Grotius.

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