Grotius and rights of war and peace

Grotius was to the field of law what Mozart was to music--a child prodigy who completed his doctoral work by age 15 and was recognized at that age by the reigning monarch of France as "the miracle of Holland." He wrote his first major work at age 21, though it was lost for centuries and didn't come to light until the late 19th century. The classic work for which he is best known is The Rights of War and Peace (1625). This work laid out the basis for what would become later known as international law. The purpose of this essay is to describe some of his leading concepts in Book I, Chapter I of Rights, with special attention to the law of nature and the law of nations. The complete text is online here, and a brief essay on his life, from an Oregon State University website, can be found here.

His "Big" Idea

One cannot separate scholars from the times in which they write. They reflect current debates, operate with assumptions that were "in the air" at the time, and write in dependence on then-current conventions. Grotius lived almost his entire adult life in the context of the withering Thirty-Years War in Europe (1618-48), and so his desire to develop a legal system which would lead to peaceful, rather than warlike resolutions of international disputes, arose out of that context. In addition, one of his early works also betrays an engagement with issues of the day. France, England and Portugal had asserted rights to the sea--they claimed that they "owned" it. Grotius argued a position that would benefit his native Holland, which which beginning to rise to prominence in his day, that there should be a "territorial limit" to to what a state could claim regarding the waters of the sea. Of course, that is the approach that we take to the issue today.

But the issue that moved Grotius was a very practical one. As a leading Grotius scholar has said:

"Desirous of making a lasting contribution to the cause of order and stability, he set as his task the writing of a definitive treatise that would convince statesmen they should be accountable to a higher authority than their own wills....[he wanted to produce] a systematic and comprehensive treatise on laws which could govern 'the mutual relations among states or rulers of states.' ....Grotius realized he would have to produce a theoretical and substantive work which would have minimal sectarian faith orientation [Holland was a Calvinist state at that time] but, being a theologian and a genuinely religious man himself, he felt constrained to ground his conceptions in theological premises," Charles Edwards, Hugo Grotius: The Miracle of Holland, 96.

Leading Concepts--Natural Law and the Law of Nations

Though Grotius wanted to develop an understanding of what scholars call the ius gentium, he doesn't just "lay out" his understanding of what the law of the nations should be. He spends a lot of time grounding his understanding in classic texts, such as Aristotle, and he is aware of Christian thinkers from Lactantius to Aquinas. We have seen already that Aquinas posited four kinds of law (eternal, natural, divine, human), and Grotius is aware of this kind of theorizing, but he suggests the existence of only three types of law. To understand how he divides the "legal world," we have to notice his reference to Aristotle in 1.9. In that passage he talks about "the best division" of law. Aristotle divided law into "natural law" and "volitional or conventional" law. This division comes from Book V of the Nicomachean Ethics, and the relevant quotation is as follows:

"What is just in the political sense can be subdivided into what is just by nature and what is just by convention. What is by nature just has the same force everywhere and does not depend on what we regard or do not regard as just....Now, some people think that everything everything exists only by convention, since whatever is by nature is unchangeable and has the same force everywhere--as, for example, fire burns both here and in Persia...But this is not the correct view.." NE 5.7.

Conclusion

Armed with this division, Grotius will make the following division of law. He will say there is natural law (this comes in for a lot of discussion in the chapter) and that there is "volitional" law. The latter can be further divided into "divine volitional law" (I.15) and "human" (volitional) law (I.14). The latter is broken up into the two categories of the civil law (law of one country) and the ius gentium, the law of the nations. Here are some questions to consider as we discuss Book I, Chapter 1.

1. What made Grotius hard/easy to read for you?

2. Grotius talks about three meanings or significations of the word "Right" in I.1. What are they?

3. Section I.10 is the important one on natural right/natural law. Is God subject to natural law? What is the distinction he draws between a priori and a posteriori natural law in I.12?

4. Grotius does not agree with those who maintain that natural law consists only in our instinctive capacties, such as nurturing and procreating. In I.11 eh lays out his reasoning. How does he argue.

5. Book I.15 through the end of the chapter discuss divine voluntary right. What does he mean by this concept? He spends so much time in the next sections laying out various dispensations of biblical law. Where is he going with the argument?

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