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28 results

Page 1 of 2

  • 13 - Parallel Worlds: International Governance and the (Utopian?) Principles of International Law

  • from Part IV - Conditions for Peace
  • Gustavo Gozzi, Università di Bologna
  • Book:
    Rights and Civilizations
    Published online:
    11 February 2019
    Print publication:
    14 February 2019, pp 321-361

  • Summary

    Chapter 13 challenges what in the Western debate has been advanced as the idea of a possible “constitutionalization” of international law, an idea that is scrutinized by looking at the work of contemporary authors like Jürgen Habermas, Christian Tomuschat, and Armin von Bogdandy against the backdrop of the power of empire in international relations. But the discussion also considers the objection the so-called Third World has raised against the project for global governance and the claims made in favor of the “rights of peoples.” The future does seem unpredictable.

  • 8 - Order and Anarchy: The Grotian Tradition

  • from Part II - International Law and Western Civilization
  • Gustavo Gozzi, Università di Bologna
  • Book:
    Rights and Civilizations
    Published online:
    11 February 2019
    Print publication:
    14 February 2019, pp 182-198

  • Summary

    Chapter 8 looks at the third of the three main approaches to international law: having analyzed the realist approach – and before that the normative one rooted in Kantian cosmopolitanism – the discussion now turns to the Grotian tradition. This current of thought is examined primarily by drawing on Hedley Bull, with a focus on four questions in particular: the methodological presuppositions of Grotius’s thought, the concept of an international society, the function of international law, and the West’s relation to other civilizations.

  • 7 - Realist Perspectives: Historiography, International Law, International Relations

  • from Part II - International Law and Western Civilization
  • Gustavo Gozzi, Università di Bologna
  • Book:
    Rights and Civilizations
    Published online:
    11 February 2019
    Print publication:
    14 February 2019, pp 166-181

  • Summary

    Chapter 7 turns to Carl Schmitt’s seminal work The Nomos of the Earth (1950), which traces a history of international law by analyzing the transformations that took place in the system of states. Schmitt singled out three stages in this evolution. First came the medieval jus gentium of the respublica Christiana, in which the Pope and the Emperor formed a unity. This first stage waned with the rise of sovereign territorial states whose relations were governed by the jus publicum Europaeum. With this second phase, the medieval just war tradition gave way to a system marked by the centrality of sovereign states that recognized one another as just and equal enemies (justi et aequaes hostes). This notion of justus hostis made irrelevant what the reasons of war might be. What took hold, then, was a frame of thought predicated on a logic of law and statecraft that, no longer resting on a theological or moral foundation, took any sense out of the idea of criminalizing war. World War I plunged the jus publicum Europaeum into a crisis out of which came the refashioned meaning of war that went into the 1919 Treaty of Versailles, where a provision was introduced criminalizing wars of aggression.

  • 1 - The Rights of Peoples and Ius Gentium: Their Origins in the Modern Age

  • from Part I - Ius Gentium and the Origins of International Law
  • Gustavo Gozzi, Università di Bologna
  • Book:
    Rights and Civilizations
    Published online:
    11 February 2019
    Print publication:
    14 February 2019, pp 3-24

  • Summary

    Chapter 1 discusses the work of Francisco de Vitoria, one of the fathers of jus gentium, bringing out its full ambivalence: on the one hand Vitoria recognized the rights of New World peoples, including their right of ownership over the lands they inhabited, and he rejected the proposition that it would be justified to wage a “just war” on account of the diversity of customs; on the other hand he wound up ultimately justifying the Spanish conquest by papal mandate in the name of Christian religious propaganda. The complexity of his work can also be appreciated from the analysis through which he compared the Christian world with the Muslim world in the geopolitical space of the Mediterranean. Vitoria conceded the legitimacy of exterminating Muslims, regarded as perpetual hostes of the Christian faith, for the purpose of ensuring “peace” and security. The origins of the clash of civilizations can thus be traced to a much earlier time than that of the reconstruction which Samuel P. Huntington put forward in the 1990s.

  • 4 - The Rights of Man and Cosmopolitan Law: Kantian Roots in the Current Debate on Rights

  • from Part I - Ius Gentium and the Origins of International Law
  • Gustavo Gozzi, Università di Bologna
  • Book:
    Rights and Civilizations
    Published online:
    11 February 2019
    Print publication:
    14 February 2019, pp 72-106

  • Summary

    Chapter 4 addresses the idea of “cosmopolitan law” in Kantian thought. This idea was conceived as a way to progressively move beyond the power politics of the sovereign states of the eighteenth century and as a criticism of Western colonialism, taking a historical perspective that, in the matter of international relations, laid the groundwork for asserting human rights against the states – a conception that did not come to full fruition until the 1948 Universal Declaration of Human Rights. Kantian thinking on international law has been interpreted in this book not as utopian but rather as stoutly realistic, this because, as much as Kant may have envisioned an unachievable ideal of peace, he also laid out a necessary path on the way to that ideal.

  • 3 - Samuel Pufendorf and Emer de Vattel: Kant’s “Miserable Comforters”

  • from Part I - Ius Gentium and the Origins of International Law
  • Gustavo Gozzi, Università di Bologna
  • Book:
    Rights and Civilizations
    Published online:
    11 February 2019
    Print publication:
    14 February 2019, pp 52-71

  • Summary

    The Peace of Westphalia occasioned a flurry of works devoted to ius gentium – the so-called “later classics” of the seventeenth and eighteenth centuries – where this subject was developed in ways that sometimes departed significantly from the models established by the founding fathers. Their approaches can be sorted into three different groups depending on how they conceive the relation between natural and positive law. These groups can be identified as follows: we have (1) thinkers who foreground the role of positive law, pushing natural law into the background; (2) thinkers who instead foreground natural law (Samuel Pufendorf); and (3) thinkers who attempt to work the two into a synthesis (Emer de Vattel). But there is one feature these authors all have in common, regardless of how they work out the relation between natural law and positive law, and it is that they all move beyond the doctrine of just war and the nondiscriminating conception of war as a clash between parties that stand on an equal moral and legal footing.

  • 9 - The Law of Peoples and International Law

  • from Part III - International Law, Islam, and the Third World
  • Gustavo Gozzi, Università di Bologna
  • Book:
    Rights and Civilizations
    Published online:
    11 February 2019
    Print publication:
    14 February 2019, pp 201-220

  • Summary

    Chapter 9 shows how John Rawls, in continuity with the Kantian perspective, frames a conception of international law as part of a law of peoples informed by the principles of positive international law. Rawls attempts to identify a common foundation of international law given the plurality of states and the plural ideologies they subscribe to, ranging from those of liberal democracy to those of Islamic law. To this end, in seeking to identify the conditions of a possible coexistence, he fleshes out the idea of “a just political society of well-ordered peoples.” More to the point, Rawls’s law of peoples sees in human rights a common standard which holds good independently of one’s ideological persuasion – be it natural law or Islamic law – and which can accordingly serve as a basis for membership in a just society of peoples. With this basic idea Rawls goes back to the crucial question of war, finding that any legitimation of war must be grounded in the guarantee of security, that is, in self-defense, or else in the exception of what he terms “supreme emergency.”

  • 10 - Islam and Rights: Islamic and Arab Charters of the Rights of Man

  • from Part III - International Law, Islam, and the Third World
  • Gustavo Gozzi, Università di Bologna
  • Book:
    Rights and Civilizations
    Published online:
    11 February 2019
    Print publication:
    14 February 2019, pp 221-266

  • Summary

    Chapter 10 illustrates the conflict that has existed between the West and the Islamic world from the time of the negotiating and drafting history of the 1948 Universal Declaration of Human Rights. Against this background, the Western conceptions of human rights are looked at in comparison with Islamic declarations of human rights. In this analysis, international law clearly reveals itself to actually consist of a plurality of international systems deeply informed by the cultural differences by which peoples are divided. This appreciation makes it possible to compare the Western and Islamic visions of human rights so as to identify what common ground there is between them. This is done by canvassing the attempts that have been made to interpret Islamic religious sources from a historical perspective. Several insights emerge from this exploration as we consider how, starting from the Barcelona Declaration of 1995, the Mediterranean has come to be identified as the geopolitical area that – by reason of a long historical tradition of cross-fertilization among civilizations (Greek, Roman, Hebraic, Christian, and Islamic) – can give rise to a “meeting of civilizations.”

  • 2 - Hugo Grotius and the Law of Peoples

  • from Part I - Ius Gentium and the Origins of International Law
  • Gustavo Gozzi, Università di Bologna
  • Book:
    Rights and Civilizations
    Published online:
    11 February 2019
    Print publication:
    14 February 2019, pp 25-51

  • Summary

    The jus gentium doctrine developed by the Dutch jurist Hugo Grotius was profoundly influenced by the conception of the law of peoples expounded by the Spanish School of Salamanca. This theme is developed in Chapter 2, devoted to Grotius, by addressing the deep contrast that in his thought frames the entire relation between the rights of man and the sovereignty of states, a contrast that found its resolution with the full affirmation of the modern system of states that was formed in the wake of the Peace of Westphalia. But the development of this system of states is also examined from the perspective of the rise of Western colonialism. Following the path beaten by Vitoria, though within a frame of thought that by now had become fully secularized, Grotius observed how the push to take the property of indigenous populations would typically masquerade under the justification of civilizing the barbaric regions of the world.

  • 12 - The Foundation of Human Rights: An Intercultural Perspective

  • from Part IV - Conditions for Peace
  • Gustavo Gozzi, Università di Bologna
  • Book:
    Rights and Civilizations
    Published online:
    11 February 2019
    Print publication:
    14 February 2019, pp 297-320

  • Summary

    Chapter 12, in the fourth and final part of the book, analyzes the conditions for a possible meeting of civilizations by way of domestic law. On this approach, the problem of the foundation of rights is addressed by relating rights to dignity, and in particular by comparing the Western understanding of this relation with its understanding in the Islamic tradition. This analysis will suggest the need to recognize cultural rights, so as to protect the identities embedded in different cultures and make for democracies that are more embracing, moving toward a legal pluralism bound to work deep changes in them. Only if Western democracies succeed in effecting forms of integration through which “the other” is recognized and respected will they be able to present themselves as participants in an “intercivilizational dialogue” in which they are in their own turn recognized by countries belonging to other civilizations and cultures.

  • 6 - International Law, Peace, and Justice: Hans Kelsen’s Normativism

  • from Part II - International Law and Western Civilization
  • Gustavo Gozzi, Università di Bologna
  • Book:
    Rights and Civilizations
    Published online:
    11 February 2019
    Print publication:
    14 February 2019, pp 141-165

  • Summary

    Chapter 6 proceeds from a cosmopolitan perspective to address the problem of the crisis of the sovereignty of nation-states in the transition from the nineteenth to the twentieth century, to this end drawing on Hans Kelsen, who proceeded precisely from an awareness of that crisis to develop a monistic conception of international law relative to the states’ domestic law. In his analysis he called into question the very principles of nineteenth-century doctrine, where international law – conceived as the highest expression of the state – was accordingly reduced to what Hegel called external public law, or the state’s external law (äußere Staatsrecht). He instead drew on a tradition of thought that traced back to Christian Wolff and his doctrine of the civitas maxima, taking it up as the institutional form of a new society of peoples. Kelsen thus developed a conception that, moving beyond any contract-theory approach, made international law into a higher-order system independent of the will of the states. Corresponding to this doctrine was an ideology of “pacifism” set against the “imperialist” ideology of nation-states.

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