Folkrättens natur – Om folkrätten och dess subjekt hos Grotius och Hobbes ur ett kelsenianskt perspektiv

Sammanfattning: This thesis investigates international law and its subjects according to two important 17th century thinkers, the legal theorist Hugo Grotius and the philosopher Thomas Hobbes. What is the character of international law according to Grotius and Hobbes? What are the subjects of international law, and how do they relate to it? To answer these questions, Grotius On the Law of War and Peace and Hobbes Leviathan are analyzed utilizing the legal philosopher Hans Kelsen's doctrine of international law. Kelsen defines law as a set of norms attached to sanctions. War among states is according to Kelsen either a breach of international law or a sanction. Kelsen places legal orders in a hierarchy, where each legal order is based on a certain norm from a higher legal order. International law, which is located in the highest level of that hierarchy, is based on a hypothetical basic norm. International law according to Kelsen is a decentralized, primitive legal order, without central organs, but with a tendency towards centralization. Hugo Grotius views man as an intelligent and social animal. With Grotius, law is divided into natural law, volitional human law and volitional divine law. Natural law, which has a moral character, is based on the nature of man. This nature also gives rise to states and their legal orders. International law have arisen from the will of states, and regulates their mutual conduct together with the the morals of natural law. Most states are governed by a sovereign, who possesses sovereign power. This power is subject only to the sovereign, who in his turn is subject to no one. Hobbes describes man in a hypothetical state of nature, where everyone is at war with each other. Here, there is no law, but only the right of nature: every man has the right to do what he think is necessary for his self-preservation. Hobbes also describes the laws of nature. They constitute a restriction of the right of nature, as a means to rise from the miserable state of nature. Men can unite and form commonwealths where only a sovereign retains his right of nature. As in Grotius, this sovereign has sovereign power and is subject to no one. The sovereign protects the members of the commonwealth against each other and against external enemies. In relation to other states, the commonwealth is still in a state of nature. International law is nothing but a state of nature. Neither Grotius nor Hobbes expressively speaks of international law as does Kelsen, in the sense that it is developing towards a more centralized legal order superior to the national legal orders. Still, their theories are not incompatible with a kelsenian evolution of international law.