Jean-Jacques Rousseau devoted an important chapter of his Social Contract to the dictatorship. Carl Schmitt interpreted Rousseau’s chapter as marking the transition from ‘commissarial’ to ‘sovereign dictatorship’. This article argues that Schmitt’s interpretation is historically and conceptually inaccurate. Instead of paving the way for sovereign dictatorship, Rousseau carefully distinguished the dictatorship from the people’s sovereign authority. Taking position in the ‘debate’ between Bodin and Grotius on the relation between dictatorship and sovereignty, he argued that the dictator could provisionally suspend the (...) people’s sovereign authority, but not abolish it. More particularly, the dictator did not possess the power to make generally binding laws, which had to remain the exclusive authority of the popular assembly. However, this did not prevent Rousseau from recognizing the dictatorship as a means for democratic reform. Rousseau thus conceived of the dictatorship as a time-limited and revocable commission to protect the constitution and to provide for a more stable and effective state organization based on the principle of popular sovereignty. (shrink)

This introduction presents an analysis of Grotius’s treatise ‘On Public Partnership with Unbelievers’ (De societate publica cum infidelibus). It was probably written between 1606 and 1609, when Grotius served as a legal advisor of the Dutch East India Company (voc). In his treatise, Grotius explains what kinds of partnerships with non-Christians are permissible under divine and natural law. These include public partnerships, such as treaties and military alliances, but also private associations, such as commercial contracts, marriages and relations of servitude. (...) As we argue in this introduction, De societate can be interpreted as a general treatise on legal partnerships with non-Christians, which relates both to the voc’s policies of treaty and alliance-making in the East Indies and to debates about the legal status of religious minorities in the Dutch Republic. (shrink)

Enemy of All Humanity: The Dehumanizing Effects of a Dangerous Concept In his contribution to this special issue, David Luban proposes to revive the age-old concept of ‘the enemy of all humanity.’ On his view, this concept supports the aims of international criminal justice by emphasizing that atrocity and persecution crimes are ‘radically evil’ and therefore ‘everyone’s business.’ Criticizing Luban’s proposal, this paper shows that in the past, the ‘enemy of all humanity’ concept has often served to establish parallel systems (...) of justice, depriving these ‘enemies’ of their rights as suspects under criminal law and as lawful combatants under the laws of war. Thus, even if the ‘enemy of all humanity’ concept is used with the intention to bring today’s perpetrators of ‘radical evil’ to justice, it risks undermining, rather than protecting, the rule of law. (shrink)

‘God Hath Given the World to Men in Common’ This article examines what limitations to private property John Locke recognizes to protect the rights of the poor. As has been pointed out in the literature, Locke’s ideas on the limitations to private property have been influenced by medieval discussions about the rights of the poor and the principle of extreme necessity. Confirming this interpretation, the article shows that Locke borrows the distinction between ‘ordinary need’ and ‘evident and urgent necessity’ from (...) Thomas Aquinas. Taking position in a debate among Grotius and Pufendorf, Locke argues that the poor have a natural right to the ‘surplus’ of somebody else’s possessions, and that this right becomes legally enforceable in case of ‘evident and urgent necessity.’. (shrink)

On 9 December 1930, Walter Benjamin sent a copy of his book The Origin of German Tragic Drama to Carl Schmitt, accompanied by a letter in which he expressed his indebtedness to Schmitt: "You will very quickly recognize how much my book is indebted to you for its presentation of the doctrine of sovereignty in the seventeenth century. Perhaps I may say, in addition, that I have also derived from your later works, especially Die Diktatur, a confirmation of my modes (...) of research in the philosophy of art from yours in the philosophy of the state. If the reading of my book allows this feeling to emerge in an intelligible fashion, then the purpose of my sending it to you will be achieved" (qtd. in Weber 1992, 5). As .. (shrink)

ABSTRACT This article seeks to explain why the Roman dictatorship, which had served as a positive model of constitutional emergency government until the French Revolution, acquired a negative meaning during the Revolution itself. Both Montesquieu and Rousseau regarded the dictatorship as a legitimate institution, necessary to protect the republic in times of crisis. For the French revolutionaries, the word ‘dictatorship’ acquired negative connotations: it became a rhetorical tool for accusing their political opponents of authoritarian rule. This article argues that Carl (...) Schmitt’s distinction between commissarial and sovereign dictatorship is unhelpful for understanding why the dictatorship was rejected by the French revolutionaries. Instead, it shows that it was the early identification with Montesquieu’s aristocratic dictatorship, which caused the delegates of the National Assembly to reject it as a threat to popular sovereignty. The exception was Marat, who proposed to establish a popular dictatorship à la Rousseau to purge the state from counterrevolutionary forces. However, Marat’s proposal found little support with his fellow-Jacobins, as it allowed the Girondins to accuse them of a conspiracy against the Convention. This caused the Jacobins to reject the dictatorship altogether and to propose alternative models of emergency government. (shrink)

This article seeks to explain how it was possible that, until the first century BC, the Roman dictatorship was never abused and turned against the constitution itself. The traditional explanation is that, contrary to its first century imitations, the dictatorship was subject to formal restrictions, such as the six months' tenure, which were strictly applied. By contrast, this article suggests that informal constraints on the dictator's powers, such as moral and religious norms, were as important as formal constraints. It shows, (...) more particularly, how the fides, or the requirement of trust, was essential for preventing an abuse of dictatorial powers. (shrink)