Grotius and Law

Larry May, Emily McGill

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781409466710
• eBook ISBN: 9781351564908
• Topic: History
• Subtopic: World History
• Index: History

The essays collected for this volume represent the best scholarly literature on Hugo Grotius available in the English language. In the English speaking world Grotius is not as well known as his fellow 17th century political philosophers, Thomas Hobbes or John Locke, but in legal theory Grotius is at least as important. Even on central political concepts such as liberty and property, Grotius has important views that should be explored by anyone working in legal and political philosophy. And Grotius's work, especially De Jure Belli ac Pacis, is much more important in international law and the laws of war than anyone else's work in the 17th or 18th centuries. This volume is therefore useful not only to Grotius scholars, but also to anyone interested in historical and modern debates on key issues in political and legal philosophy more broadly, and international law in particular.

Part I
Grotius’s Place in the History of Legal and Political Thought

[1]
Grotius

10 April 1583–28 August 1645

Martin Wight

Life and Achievement

Grotius is famous for his precocity, erudition, and omnicompet-ence. He represented the glory of Baroque learning as Kant did the Enlightenment. Born at Delft during the Dutch Revolt, of a good family, he had at the age of fourteen brought out a new edition of Martianus Capella’s The Wedding of Philology and Mercury (written between ad 410 and 439). This was a romantic fictionalized account of a system of education that provided the authentic medieval description of the liberal arts: grammar, rhetoric, dialectic, arithmetic, geometry, music, and astronomy.¹

Grotius, when aged fifteen, travelled with Oldenbarnevelt on his mission to Henry IV in 1598, and Henry is reputed to have said of him, ‘Behold the miracle of Holland.’ He spent a year in France, and produced at the age of sixteen a Latin translation of Stevin’s treatise on navigation by compass, displaying his good knowledge of mathematics. After this precocious start Grotius in time became a lawyer, jurist, poet, theologian, and politician.

He was Attorney-General (Advocaat-Fiscaal) of Holland and Zealand at twenty-four. When he was eighteen he wrote Adamus Exul, a tragedy in Latin verse, and a few years later Christus Patiens. As theologian he wrote commentaries on the Old and New Testaments and On the Verity of the Christian Religion. His biblical criticism is a lucid detached scientific exegesis showing a wide historical background. He had an ecumenical and irenic standpoint, transcending the Reformation, writing for ‘the whole Christian world’. Several Christian persuasions contended for him (it is thought he died a Catholic) and he always advocated toleration. He was an ancestor of the World Council of Churches; he envisaged a council of the Churches not represented at the Council of Trent. When he visited England with the mission negotiating freedom of navigation and commerce in the Indian seas, he also tried to persuade James I to hold a general synod and bring about a union of all Reformed Churches. He became identified with Arminian liberal Calvinism.²

Grotius was not successful as a politician. In 1612 he became Pensionary (or Mayor) of Rotterdam, the second city of the Union. But Grotius was an intellectual in politics and could not handle men—nor survive the Dutch revolution of 1618. It was fought over the independence of the smaller provinces against Holland; the war with Spain as against peace with Spain; the Calvinists fighting the Arminians, and Maurice fighting Oldenbarnevelt. Grotius and Oldenbarnevelt were arrested and tried for treason; the latter was beheaded, Grotius imprisoned for life. He was kept in Loevestein Castle from 1619 to 1621 with his wife, children, and books. He wrote several books there, among them Introduction to the Jurisprudence of Holland and, aided by his wife, escaped in 1621 in a chest of books, while questioning ‘whether it is permissible to use ruse or deceit in war’!³

He fled to Paris, where he lived from 1621 to 1631 receiving a pension from the French government, which was later discontinued by Richelieu. In 1632 he went to Germany but returned to Paris as Swedish ambassador in 1635. He was thus the representative of France’s chief ally, and negotiated the alliance between them. He was competent, but disillusioned. He was recalled to Sweden and died at Rostock in 1645. ‘By undertaking many things I have accomplished little’, he said of himself.⁴ But he is the acknowledged father of International Law. De Jure Praedae (The Law of Prize), written during the winter of 1604–5, and unknown until rediscovered in 1864 and published in 1868, briefed the Dutch East India Company in its dispute with the Portuguese. Mare Liberum was one of its chapters and the only one published (in 1609). It was particularly relevant to the controversy shortly afterwards between the English and the Dutch over fishing rights (Selden’s Mare Clausum of 1618, published in 1635, put the English case). It was also relevant to the Spanish designs against the Dutch in the Eastern seas. His De Jure Belli ac Pads (1625), written in Paris and dedicated to Louis XIII, was an immediate success. ‘It supplied … the protestant nations … with … a rational theory of international relations emancipated from theology.’⁵ It became the textbook of the new Europe of Westphalia. The book was put on the Papal Index, not for any doctrine that it enunciated but for the petty reason that it did not refer to the popes by their proper Roman Catholic titles. This probably promoted its sales. In 1899 when Leo XIII applied for an invitation to the Hague Peace Conference he was refused, among other reasons, because Grotius was still banned. The ban was lifted two years later in 1901.

Ambiguity and Inaccessibility

One of the main difficulties in studying Grotius is his ambiguity, and this stems not least from his inaccessibility. De Jure Belli ac Pads is a very difficult book. It is systematic in an obsolete way, a legal encyclopaedia, including much that is not international law and buttressed with ancient learning and classical quotations. Grotius avoided contemporary political examples so as not to give offence and because ancient ones were deemed better.⁶ It is difficult to find clear doctrines and principles in it; it can appear self-contradictory and confused, but it also displays richness and tension. Lauterpacht has commented:

We cannot even consider him as what is usually described as a ‘Grotian’ who has accomplished a workable synthesis of natural law and state practice. The fact seems to be that on most subjects which he discusses in his treatise it is impossible to say what is Grotius’s view of the legal position. He will tell us, often with regard to the same question, what is the law of nature, the law of nations, divine law, Mosaic law, the law of the Gospel, Roman law, the law of charity, the obligations of honour, or considerations of utility. But we often look in vain for a statement as to what is the law governing the matter … The fact is that we are often at a loss as to the true meaning which he attaches to the law of nature.⁷

One consequence of this ambiguity is that Grotius can be posthumously all things to all men; he is interpretable in various ways. Lauterpacht draws him in the image of Lauterpacht: he attributes to Grotius ‘pacifism’, ‘the idea of peace’, and ‘the tradition of idealism and progress’.⁸ In contrast see Walter Schiffer in The Legal Community of Mankind:

He obviously did not believe that some time in the future men would become so reasonable that they would generally arrive at uniform judgments with regard to the justice or injustice of the causes of wars … He did not expect that generally the law of nations would constantly improve until it was identical with natural law … Grotius neither expected nor suggested any fundamental changes in the conditions on which his legal theory was based.⁹

In a word, he did not believe in progress.¹⁰

Richness and Complexity

Such ambiguity is not due just to methodological confusion, but to a richness and complexity that reflects international politics themselves. There is a moral complexity in the question of Allied area bombing of Germany in the Second World War, or in the attempted distinction between the tactical and strategic use of atomic weapons. Does the numerical increase in the number of combatants or fighting men who are killed with one nuclear bomb alter the quality of the attack? Is the marginal destruction of non-combatants morally decisive, for instance in destroying railway junctions [or dams –Eds.] ? What proportion of non-combatants may be destroyed without exceeding the bounds of necessity? Has the distinction between combatants and non-combatants become obsolete? Is the effect of the use of certain weapons upon the future morally decisive—the effect not so much on posterity, in tactical use only, but on the long-term physical geography of the locality attacked, making it a desert? Has the moral quality of the act been altered if it is done as reprisal or retaliation—the declaration of ‘no first use’ being seen as a moral justification? Does the moral quality of tactical use depend entirely on the pragmatic validity of the distinction from strategic use: that is, on success in avoiding a general nuclear war; or on restricting destruction to no-man’s-lands (Koreas, Germanys, Middle Easts) and avoiding the destruc-tions of the Great Powers? [Written 1959].

This is the maze in which we are lost. Grotius reflects more accurately this morally multidimensional character of our experience than, arguably, any other writer on the subject. (It is true, he was seeking to establish legal, not moral rules, but he is throughout concerned with both and does not always succeed in distinguishing them.) He reproduces an endless dialectic of the real and ideal, the actual and permissible, with all its tensions and facets, hesitations, and qualifications. To simplify crudely: if you are apt to think the moral problems of international politics are simple, you are a natural, instinctive Kantian; if you think they are non-existent, bogus, or delusory, you are a natural Machiavellian; and if you are apt to think them infinitely complex, bewildering, and perplexing, you are probably a natural Grotian.

Reconciler: The Middle Way

Another aspect of the Grotian genius is the golden mean, or Aristotelian moderation. He was a reconciler and synthesizer; De Veritate Religionis Christianae (1627) offered a programme for the reunion of Christendom: ‘Grotius suggested that the views of all Christianity might be reconciled, if a common basis of piety were stressed, and doctrinal differences minimized; on the basis of scriptural evidence, he set forth a series of propositions common to all Christianity.¹¹ The monstrous barbarity of the Thirty Years War had led many to believe that all arms should be forbidden to a Christian. Grotius tells us that this idea had earlier been expressed by his countryman Erasmus, perhaps

on the principle that to straighten a bent stick one must bend it strongly the other way. But this attempt to force too much to an opposite extreme often does more harm than good, inasmuch as exaggeration, so readily apparent, detracts from the authority of a more reasonably advanced truth. A remedy must therefore be found for both schools of extremists—for those that believe that in war nothing is lawful and for those for whom all things are lawful in war.¹²

This moderation is shown also in Grotius’ quotation from Genius on disobedience to unjust orders: The middle view therefore seems the best and safest, that some commands are to be obeyed, and some other commands not.’¹³

Restrain Evil: Lessen Suffering

It is plain that Grotius was deeply sensitive to human suffering, and equally did not imagine it could ever disappear. There is a famous account in the ‘Prolegomena’ to On the Law of War and Peace of Grotius’ motive in writing:

… there were many and weighty considerations impelling me to write a treatise on the subject of [the law of war]. I observed everywhere in Christendom a lawlessness in warfare of which even barbarous nations would be ashamed. Nations would rush to arms on the slightest pretext or even without cause at all. And arms once taken up, there would be an end to all respect for law, whether human or divine, as though a fury had been let loose with general licence for all manner of crime....

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Grotius’s Place in the History of Legal and Political Thought
• Part II Natural Law and Natural Right
• Part III Liberty, Necessity and Roman Law
• Part IV Property Rights and Law
• Part V The Law of War and Peace
• Part VI International Law
• Name Index