This chapter explains how international society emerged and was globalised. Its main purpose is to explore how the European sovereign states-system expanded across the globe to become the truly international order of sovereign states that we see today. The first part of the chapter examines how the expansion of the states-system came about and how it has been analysed. The second part provides a critical discussion of how the spread of the states-system has been understood in IR. It aims provoke thinking about the enduring Eurocentrism that continues to bedevil our theorising of international politics.

Constitutional norms create an imagined world of law and political (leadership) order: a story spanning the gap between emotions, sentiments, and social order. Emotions and sentiments enable us to assess not only our physical environment and act accordingly, but also to vet our relationships with others, even to value our own thinking and conduct – that is, morality. This chapter demonstrates the role morality plays in constitutions and constitutional law. It lies at the heart of what we call natural law (pre-existing, prerequisites to law and constitutions), and the rules of recognition we use to decide whether law is actually and truly valid law. This natural law line of thinking is opposed to the positive law school of thought. The chapter ends with the question whether there is something like universal morality and whether constitutions are reflections of of basic morality.

A deeply contentious judicial debate over the enforcement of contracts for the sale or hire of enslaved people erupted as one of legal Reconstruction’s central battles. This chapter explains the doctrinal approaches favored by judges, analyzes their underlying legal rationales, and explores the consequences of choosing one rationale over the others. It argues that a fundamental disagreement about the meaning of the Thirteenth Amendment caused the judicial discord. The outcome of that disgreement – the enforcement of contracts – permanently weakened the power and potential of the Thirteenth Amendment.

This chapter explores ideas about orthodoxy and powerful necessity in Spanish Counter-Reformation reason-of-state discourse. Individual authors engaged in describing pragmatic politics and ways of imagining how to put these into practice, while simultaneously taking care to avoid association with Machiavelli. Through translations of Lipsius’ Latin Politica into the Spanish and Italian vernaculars, the chapter first shows how the translators explored ways to square Lipsius’ thought with the Christian-Ciceronian framework endorsed by Catholic orthodoxy. Lipsius recovered the concept of necessity that Machiavelli had reshaped into necessità, and enlisted it once more as a force that could legitimately overrule human law. The chapter then traces how authors in the Spanish monarchy subsequently conceived of necessity as a concept or tool that could legitimize amoral political behaviour, especially in the discussion about deceit. Necessity depended on circumstances that were impossible to define in advance, and this made it orthodox yet flexible. Both the translators and the authors of ‘true’ reason of state experimented with organizing knowledge and (historical) information, and its potential for creating meaning and legitimizing amoral political behaviour, as they tailored a language of reason of state that was both orthodox, and suited to the realities of the present.

The category of ‘human rights law’ is sometimes limited to bills and charters of rights on the model of the Universal Declaration of Human Rights and to the case law of courts interpreting and applying these legal measures. This chapter argues that the measures that realise human rights in the law are the everyday, unremarkable measures that make up the full corpus of legal materials directing what may, must, and must not be done. The argument explores how all sound positive law finds its source in the human goods through one of two modes of derivation: deduction or specification. These are the same two modes of positive law’s derivation from natural law, for the reach of human rights law is more or less coextensive with the reach of positive law and the human goods from which are derived human rights law are the same human goods from which are derived natural law’s practical principles and precepts.

This chapter argues that there are two basic approaches to natural law, especially but not exclusively in the Jewish tradition. In the first, natural law is essentially concerned with human goods. In the second, natural law is essentially concerned with human rights. The first approach is that of ‘natural theology’. The second approach is what is called here ‘normative theology’. For natural theology, natural law is rooted in a larger, beneficial, teleological Nature, ruled by the Creator-God. For normative theology, the ‘nature’ in natural law is human nature, which is essentially lawful, having been made in God’s image by the lawgiving Creator-God. The chapter analyses and critiques the first approach to natural law, while the second is analysed and its theological and philosophical preferability advocated. From a theological perspective, rights are more closely related to divinely commanded duties (mitsvot) than goods are. From a philosophical perspective, connecting natural law with human rights as divine entitlements avoids the problem of deriving prescriptions from descriptive states of affairs; a problem natural law based on natural theology does not seem able to overcome.

The New Natural Law Theory (NNLT) identifies the foundations of ethics in practical principles directing agents to aspects of human flourishing in an all-round reasonable manner. Other normative principles and concepts, including the concept of human rights, are understood in terms of their relationship to human flourishing, and the basic human goods that are constitutive aspects of that flourishing. NNLT thus possesses resources to explain the justification and importance of human rights, as well as the role rights talk plays in the overall economy of moral, political, and legal discourse. In this chapter, Section 2 discusses the logic of rights; Section 3 provides the general foundations for the justification of rights, both human and legal, in considerations of justice and common good. Section 4 looks at the paradigm case of human or natural rights: rights that are absolute and thus already conform to the logical structure of rights identified in Section 2. Section 5 identifies the scope of such rights as including all human beings. Section 6 addresses the relationship between human and legal rights. Finally, Section 7 addresses the metaphysical status of human rights.

The apostolic see was asked how ritual systems, especially the system of clerical ordination, should be coordinated with the rules for the reception of repentant heretics. The main ritual system in question was clerical ordination, but baptism was drawn into the discussion. The main heresies in question were the Novatians, the followers of Bonosus and (less prominent) some Arians. The actual content of these theological heresies was hardly discussed in the papal responses. In terms of modern analytical ‘etic’ concepts, the responses are legal rather than theological. The last part of the chapter explains this conceptual distinction – between ‘legal’ and ‘theological’ – as it will be used throughout the book. Medievalists sometimes assume that canon law and theology were indistinguishable before the late twelfth century. It is true that they had constituted a continuum in the eleventh and twelfth centuries. When we look further back to late Antiquity, however, we find that a de facto distinction had emerged, even if around 1100 it would be submerged for a time.

Christians have wrestled with conscience from Christianity’s beginning to the present. Does it exist? Do religious and nonreligious people have it? Is conscience a subjective or objective reality? Christians have asked if it is God’s voice, human beings’ own voice, or the voice of the community. Is conscience found in natural law? Is it a combination of the mind, will, heart, and/or the soul? Is it a divine judgment or a self-evaluation? What are the consequences of following an erroneous conscience? Lately, questions have arisen about conscience in a pluralistic society. What ought to be the relationship between conscience and law? Commentators also struggle with questions about accommodating institutions’ conscience claims. Which institutions might qualify and why? Lawmakers also contend over conscience claims made by individuals concerning military service, or over state laws about family matters increasingly at odds with Christian commitments. This book explores sources having lasting influence upon questions about conscience, including the New Testament, Aquinas, Luther, Calvin, Roger Williams, US federal and state constitutions, and Pope Benedict XVI, among many others.

If one accepts that there is a remarkable continuity in the human propensity to formalize and categorize the world, it is necessary at the same time to note the no less obvious differences in the methods of conceiving and implementing this process of efficacious formalization, but also in the finalities associated with it. In this respect one could speak of legal revolutions just as one speaks of scientific revolutions. The idea of legal revolution suggests two things: one, substantial, is that there have been break points in how the world has been categorized in the legal sense; the other, of a more methodological nature, is that it would no doubt be useful to make good use, in the history of law, of what the philosophy and history of science and technology have continued to accumulate over several decades.

Our aim is to develop a sociohistorical jurisprudence of “law properly so called,” which involves a threefold analysis: conceptual, historical, and praxeological. Following the ground broken by analytical philosopher Ludwig Wittgenstein, conceptual analysis requires the exposition of the grammar through which concepts acquire their meaning and are meaningfully used. In a manner inspired by philosopher of science Ian Hacking and historian Reinhart Koselleck, historical analysis focuses on the description of the birth, development, and use of concepts. Drawing on the work of sociologist Harold Garfinkel, praxeological analysis describes the practical methods used by people to make sense of their environment, to produce their local order, and to act accordingly. The three approaches converge in their insistence on adopting an endogenous/indigenous perspective toward social life and its production.

In this chapter we describe the methods judges use to fill what is often called “the silences of the law,” that is, gaps in legislation, in the domain of family law in three countries: Morocco, Egypt, and Indonesia. More specifically, we explore the role and place of uncodified fiqh in contemporary legislation and adjudication in the field of personal status law. We proceed in four steps. First, we address the institutional and legal transformations affecting law, especially family law, in Morocco, Egypt, and Indonesia, focusing on what may be termed a legal revolution that made it possible to speak of law in terms of codes and to classify fiqh as a subsidiary source when legislation is silent. Second, we turn to the specific domain of family law, briefly discussing statute law, case law, and legal practice in each of the three countries. Third, on the basis of marriage authentication cases (ithbât al-zawâj, ithbât al-nikâh), we examine how, practically speaking, judges seek a solution in the body of fiqh. Finally, we develop an argument about the nature of judicial work in the management of “references to Islam” within the framework of positive, codified, and standardized law.

Guastini argues that legal positivism was first conceived as a type of legal philosophy by Norberto Bobbio in 1950, and that Bobbio later distinguished between methodological positivism, theoretical positivism and ideological positivism. For Bobbio, methodological positivism is a (normative) view about legal scholarship, namely, that it should be descriptive; that theoretical positivism is a substantive theory of law, according to which law is a set of commands issued by the sovereign, legal interpretation is a cognitive enterprise, and the application of law is a matter of deduction; that ideological positivism is the view that one ought to obey the law regardless of its content; and that all three types of legal positivism share the view that there is no such thing as natural law. As Guastini explains, contemporary Italian legal philosophers reject theoretical positivism and mostly conceive of legal positivism along methodological lines, holding that there is no natural law, that it is important to distinguish between expository and censorial jurisprudence (in Bentham’s terminology), and that there is no obligation to obey the law all things considered or regardless of the law.