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The Metamorphosis of Punishment in the Law of Nations The Metamorphosis of Punishment in the Law of Nations The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation Hinshelwood, Bradley Alan. 2015. The Metamorphosis of Punishment in the Law of Nations. Doctoral dissertation, Harvard University, Graduate School of Arts & Sciences. Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:17467338 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Other Posted Material, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#LAA The Metamorphosis of Punishment in the Law of Nations A dissertation presented by Bradley Alan Hinshelwood to The Department of Government in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the subject of Government Harvard University Cambridge, Massachusetts April 2015 © 2015 Bradley Alan Hinshelwood All rights reserved. Dissertation Advisor: Richard Tuck Bradley Alan Hinshelwood The Metamorphosis of Punishment in the Law of Nations Abstract This dissertation examines the disappearance of punishment as a justification for interstate war in European political theory, and its rise as an individualized process applicable to what modern-day scholars call “war crimes.” This metamorphosis occurred over the course of roughly a century and a half of debate in natural law theory, initiated by the publication of Hugo Grotius’s De jure belli in 1625. This work touched off two parallel and often closely related debates about the precise scope of natural law in wartime and the relationship of individual subjects to the acts taken by their states or sovereigns. Grotius’s arguments about sovereignty initiated a gradual decline of the notion of collective responsibility for state acts which made the precise content on punitive war and state punishment difficult to define, despite strong theoretical hurdles presented by social contract theories of the state which stressed the ways in which the sovereign’s judgment stood in for—and thus could be interpreted as—the subject’s judgment. While this undermined the prospects for collective punishment through war, it was not until the late 17th and early 18th centuries that scholars began to argue that individualized punishment of enemies who violated certain standards of conduct could be a legitimate feature of war, based on a new conception of natural law which stressed the priority of obligations over rights. The culmination of the tradition came in the work of Emer Vattel, whose Droit de Gens preserved punishment as a potential just cause of war but effectively emptied the category of its content, while fully embracing arguments about personalized punishment for offenses which violated the laws of war. iii Contents Introduction 1 Chapter One: Grotius and the Justification of Private Punishment 15 Chapter Two: The Hobbesian Challenge 77 Chapter Three: Pufendorf and the Restoration of Perfect Right 109 Chapter Four: Lockean Authorization and the International Order 151 Chapter Five: Leibniz, Wolff, and the Return to Grotius 203 Chapter Six: Vattel and the Taming of Collective Punishment 280 Conclusion 336 Bibliography 347 iv Acknowledgements A project of this magnitude is obviously impossible to complete without substantial help, and I am no exception. I am especially grateful for the support of the members of my committee—Richard Tuck, Charles Donahue, and Eric Nelson—and for their unfailing cheerfulness, gentle chiding, generosity, and incisive comments on this work as it developed. Conversations with a variety of other faculty members likewise helped me hone my ideas and think about how to broaden their impact, including Gabriella Blum, Jack Goldsmith, Samuel Moyn, Todd Rakoff, and Joseph Singer. Finally, I am grateful to audiences and commenters at the Harvard Political Theory Workshop and the 2015 Midwest Political Science Association Conference, who provided valuable feedback on versions of chapters 1 and 4. Through my graduate program I have found a wonderful community of fellow theorists whose moral support was likewise invaluable, and conversations with Charles Lesch, Jennifer Page, Rita Koganzon, Tae-Yeoun Keum, and Tim Beaumont about the trials and tribulations of our shared enterprise were always particularly welcome. Quincy House has provided a home for me ever since my undergraduate days, and the unfailing support and levity provided by the house and tutorial staff there made the day to day burdens of a dissertation much lighter. My parents, Jack and Laree Hinshelwood, have been unbelievably supportive of my academic work, and I owe them more than I could possibly repay. Finally, my wife, Abby Dalton, has experienced the highs and lows of this project alongside me, and did everything she could to keep me sane, happy, and motivated. This would not have been possible without them. v Introduction This dissertation examines the disappearance of punishment as a justification for interstate war in European political theory, and its rise as an individualized process applicable to what modern-day scholars call “war crimes.” This involves studying a moment in the history of natural rights theories which, compared to the long lifespan of punitive war as a feature of international relations, brought that concept to its knees extremely quickly. The process that ultimately led to the disappearance of punitive war was set in motion by the publication of Hugo Grotius’s De jure belli ac pacis in 1625, a work widely considered by contemporaries and successors to be a major accomplishment and innovation in natural law theory. The final blow to punishment was not struck by the international legal positivism of the 1800s—though for obvious reasons that movement was hostile to the idea of punishment—but instead by developments in natural law theory which culminated with the publication of Emer de Vattel’s Droit de Gens in 1757. In the span of just 132 years, punishment lost the legitimacy it had held for nearly two millennia in both classical and Christian thought on the international realm. With this disappearance, however, came a new body of thought about punishment which stressed that war necessarily involved enforceable limits on a belligerent’s conduct toward its enemies— limits enforceable through individualized punishment for transgressions of that law. This led to the creation of the civilian/combatant distinction, as well as extensive protections for prisoners of war, both which continue to undergird the modern laws of armed conflict. Punishment’s long legacy in European political theory could be traced back to the ancient world. Cicero’s De officiis included punishment among the causes of war; he stressed that there are duties even to individuals who have wronged us, so punishment must therefore be proportionate, which leads to his general insistence that “the only excuse, therefore, for going to war is that we may live in peace unharmed.”1 The most authoritative Christian writers endorsed and elaborated on this principle. Augustine’s Questions on the Heptateuch contained the most famous formulation, stating that “We usually define just wars as those that avenge wrongs, when peoples or political communities need to be punished either because they have failed to rectify wrongs committed by their subjects, or because they have failed to restore property unjustly seized.”2 When Thomas Aquinas gave his description of just causes of war in the Summa, he simply quoted directly this passage of Augustine.3 Among writers more contemporary to Grotius, the claim that punishment was an acceptable cause of war was likewise accepted. Alberico Gentili, author of one of the most authoritative humanist texts on the laws of war, included punishment among the legitimate causes of war,4 and the same was true of the Scholastic writers on law of war; Francisco Suarez, for example, noted in 1613 that “war may also be justified on the ground that he who has inflicted an injury should be justly punished....This conclusion is commonly accepted.”5 The disappearance of this venerable position in international thought has been noticed in recent years, but has met with surprising indifference and little interest in tracing its decline. In modern scholarship on just war theory, Michael Walzer is highly unusual in discussing the issue at all, though he devotes little more than a paragraph to noting that it was a traditional though 1 De officiis, trans. Walter Miller (Cambridge: Harvard University Press, 1913), I.34, p. 37. The initial discussion of punishment is in I.33, p. 35-37. 2 Questions on the Heptateuch, q. 10 on Jos. 8:2, in Patrologia Latina, Vol. 34, col. 781. Justa autem bella definiri solent, quae ulciscuntur injurias, si qua gens vel civitas, quae bello petenda est, vel vindicare neglexerit quod a suis improbe factum est, vel reddere quod per injurias ablatum est. I have used the translation from Aquinas: Political Writings, trans. Richard J. Regan, ed. William P. Baumgarth and Richard J. Regan (Indianapolis: Hackett Publishing Co., 2002), 165. 3 ST II-II, Qu. 40, Art. 1, in Baumgarth and Regan at 165. 4 Three Books on the Law of War, trans. John C. Rolfe (Oxford: The Clarendon Press, 1933), I.18, p. 83. 5 De Charitate, in Selections from Three Works of Francisco Suarez, trans. Gwladys Williams et al. (Oxford: Clarendon Press, 1944), IV.5, p. 818. 2 ultimately ill-defined justification for war.6 Similarly,
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