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Grotius, Necessity and the Sixteenth-Century Scholastic Tradition

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The essay investigates elements of sixteenth-century scholastic thought that have played a role in Grotius’s doctrine of necessity: the nature of the rights of the person in extreme need; the relation of the right of necessity to self-preservation; the compact that lies at the origin of property rights; and finally the obligation of restitution once the emergency is over. Grotius did not develop the doctrine of necessity as an abstract principle about the relationship between private property and subsistence rights. Instead, he used it primarily as a normative principle on permissible behavior in times of war. The comparison with sixteenth-century thought and the practical purposes for which he developed the principle help to understand better the Grotian conception about the subjective nature of the right of necessity and its normative foundation.

Affiliations: 1: IE Law School – IE University, Madrid, bart.wauters@ie.edu

10.1163/18760759-03800008
/content/journals/10.1163/18760759-03800008
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/content/journals/10.1163/18760759-03800008
2017-12-22
2018-06-24

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