On Heterogeneity and the Naming of DE INDIS of Hugo Grotius
Monash University - Faculty of Law
Monash University Faculty of Law Legal Studies Research Paper No. 2006/66
Journal of the Philosophy of International Law, Vol. 1, No. 1, pp. 72-115, 2006
This essay examines the politics of de-notation through an application of some of the basic principles of Deconstruction to an early Grotian text. Originally an unpublished manuscript, the Text under consideration is almost universally referred to by Historians and legal scholars as On the Law of the Prize and Booty (De Iure Praedae), despite Grotius' repeated references to it as On the Affairs of the [East]Indies (De rebus Indicis). The ascendancy of the former Title over the latter originated from an editorial insertion performed in the mid-nineteenth century and re-iterated in the present. Apart from critically reconsidering the inherently problematic relationship between Author and Title as self-grounding signs of meaning, a topic ripe for deconstructive technique, this paper makes a broader claim: that the former Title is more compatible with the discourse of mainstream legal scholarship by implicitly depoliticising the Text, a sub rosa reaffirmation of orthodoxy's demarcation between Law and Politics. Substituting De Indis for De Iure Praedae, which signifies the discursive shift of the Text from the judicial to the extra-judicial, tremendously widens the scope for the practical application of Critical Theory and Post-Colonialism to the early history of International Law: the text may now be readily perceived as being suffused by the Presence of Colonialism. De Indis may be legitimately classified as a protocolonialist text in at least two senses: (i) the discursive, the Text implicitly resting upon the supplement of the expropriating logic of other more explicitly colonialist texts such as Vitoria's De Indis; (ii) the historical, the Text positioned within the contours of the equally heterogenous logic of the early Capitalist World-Economy. The strategic but hierarchically organized rhetorical linkages between ius naturale, mare liberum and bellum iustum establish the contours of the textual re-presentation of the preliminary stage of the Capitalist World-Economy. The re-formulation of maritime imperium and dominium through the mediating device of mare liberum permits the untrammelled operation of ius naturale as the foundational principle of bellum iustum, signified by the seizure of the Prize within juridically free - or empty - oceanic spaces, ultimately resolving the problem Concerning the Indians/Indies.
Number of Pages in PDF File: 45
Keywords: Hugo Grotius, international law, textual deconstruction, critical theory, post-colonialism
JEL Classification: K33, K39Accepted Paper Series
Date posted: February 27, 2008
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