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.
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 (1604-1606) 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.
Thucydides and Hobbes are often interpreted as ‘realists’. States vis-à-vis each other remain in the state of nature and are conceptualized in analogy with individuals in the state of nature. States are therefore seen as engaging in the kind of self-interested behavior that makes cooperation elusive. In this chapter I argue that Thucydides’s Melian Dialogue might have shown Hobbes that the analogy between individuals and states does not really go all the way. For Hobbes, states are the artificial structures within which individuals may satisfy their subjective desires; once the Melian commonwealth could no longer guarantee its citizens’ safety, it would have been rational for the Melians to surrender, rather than risk an overwhelmingly probable catastrophe. States and individuals are also distinct in that the former may develop better knowledge of the laws of nature than individuals ever could. This fissure in the individual-state analogy is the lesson Hobbes drew from the Melian Dialogue, as can be seen in his analysis of sovereignty by acquisition in the Leviathan. Thucydides was important because his history, Hobbes thought, was true and could therefore provide useful examples of reason and its defects in action; the Melians might thus in addition have provided an illustration for what Hobbes believed was wrong with the Foole’s reasoning. Accordingly, Thucydides can be seen to have provided a foundation for Hobbes’s argument for peace and individual self-preservation.
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.
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.
At the same time as the modern idea of the state was taking shape, Hugo Grotius (1583-1645), Thomas Hobbes (1588-1679) and Samuel Pufendorf (1632-94) 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 (where ex hypothesi there was no state), 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 I). Section II argues: 1) that Grotius's natural law was not simply an anti-skeptical construction based on self-preservation (pace Richard Tuck), but continued a Roman legal tradition; 2) that Hobbes's account of natural law beyond the state was essentially prudential, not moral (pace Noel Malcolm); and 3) that commerce as a driver of social and moral order (Istvan Hont's interpretation of Pufendorf and Adam Smith) had a substantial and under-appreciated impact on international legal order. Each contributed to the thought of later writers (section III) such as Emer de Vattel (1714-67), David Hume (1711-76), and Adam Smith (1723-90), and eventually to the empirical legal methodologies of Jeremy Bentham (1748-1832) and Georg Friedrich von Martens (1756-1821).