Acceptable Wars and the Rise of Sovereign Power
Events of the past decade, from the military engagements in Afghanistan and Iraq to the more recent civil war in Syria, have renewed interest in questions of law and war. Legal history has had a longstanding engagement with those issues, one that ranges widely: across debates over the right to bear arms, the development of just war doctrine in international law, and efforts to implement laws trying to protect the rights of military prisoners or deal with non-combatants displaced by war.
An article by Ryan Greenwood in the current issue of Law and History Review offers a different perspective on the relation between law and war. In that article, “War and Sovereignty in Medieval Roman Law“, Greenwood unpacks the theory of “licit,” or legally acceptable, war developed by medieval Roman lawyers.
At its most basic, Greenwood’s article is a history of an idea that considers the intellectual and practical questions that drove civilian lawyers to develop the idea of a licit war. To that end, his study traces the way the elements of the doctrine evolved in response to the Roman Emperor’s failure to adjudicate disputes between Italian cities and explores the ways in which licit war theory diverged from the just war tradition.
As important as that basic point is, Greenwood’s study moves beyond it. He also ties the development of the doctrine of licit war to early modern political theory, arguing that the civilians’ theories contributed to the development of the concept of sovereign power. He shows that the civilians’ exploration of the rights of Italian cities gave rise to the idea that sovereigns had the right to judge their own cause. And, he suggests, that probably influenced Hobbes and Locke as they developed their theories of the sovereignty of individuals in a state of nature.
In addition to Greenwood’s study, the current issue of Law and History Review has articles that run the gamut from the development of written law in China to witness testimony in criminal cases. A brief overview of those articles is available here.