Early Modern Sovereignty and Its Limits

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Benjamin Straumann

Abstract

My Article seeks to explore a few antecedents of the idea that sovereignty may be encumbered with some obligations and duties vis-à-vis non-sovereigns and even strangers. Theories about limitations on sovereignty and obligations on the part of sovereigns often arose out of the fertile conceptual ground of Roman private law, in particular rules of property law governing usufruct and rules of contract law, such as those governing mandate. Early modern thinkers, especially Hugo Grotius (1583-1645), built on these ideas and, in addition, developed an account of moral and legal obligations arising, independently of God’s will, from a universal human nature. Building on Cicero, Grotius was among the first early-modern thinkers to elaborate the distinction between “perfect” duties of justice and “imperfect” duties of beneficence, an important idea that had wide influence through the work of Emer de Vattel (1714-1767). The Article closes by offering a few observations on the trajectories within which Professor Benvenisti’s concept of “sovereigns as trustees of humanity” could be situated.

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Benjamin Straumann, New York University

New York University. I would like to thank the organizers and participants of the conference on Sovereignty as Trusteeship for Humanity, held in Tel Aviv on June 16-17, 2014. I am grateful to Eyal Benvenisti and Doreen Lustig for inviting me and for interesting comments and conversations. I would also like to thank my commentator, Uri Yiftach-Firanko, as well as David Dyzenhaus and Evan Fox-Decent for their helpful suggestions and criticism. Some of the material that appears in this Article also appears in my Roman Law in the State of Nature: The Classical Foundations of Hugo Grotius’ Natural Law (2015).