The Metamorphosis of Punishment in the Law of Nations

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The Metamorphosis of Punishment in the Law of Nations

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Title: The Metamorphosis of Punishment in the Law of Nations
Author: Hinshelwood, Bradley Alan
Citation: Hinshelwood, Bradley Alan. 2015. The Metamorphosis of Punishment in the Law of Nations. Doctoral dissertation, Harvard University, Graduate School of Arts & Sciences.
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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.
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