Grotius and de jura praedae and de jura belli et pacis and legal writings

The purpose of this essay is to pose some questions about how to think about international law in the context of the goals Grotius aimed at in his two large works--De Jure Praedae ("DJP"--On the Law of Plunder--1604-05) and De Jure Belli et Pacis ("DJB"--The Rights of War and Peace--1625).

Grotius' Biography--Facts from a Life

Though DJB is Grotius' best-known work, it really is based in large measure on DJP, written two decades previously, when Grotius was only 21 years old. There was a very tangible historical event that prompted Grotius to write in 1604. The year prior to this (1603) the Dutch Admiral Jacob van Heemskerck captured a richly laden Portuguese carack, the Catharina, in the Straits of Singapore. Van Heemskerck was sailing in the service of a company owned by the Dutch East India Company. On September 9, 1604 the vessel was condemned by the Dutch College of Admiralty. After sale of the ship, the cargo was distributed to the East India Company, Admiral van Heemskerck and his men.

In the wake of this event, some doubts were expressed about how one could justify plundering a ship on the high seas, and under what conditions. Did you have to be at war with the nation whose ship you took? In order to be at war must there be a formal declaration of war? Could there be private wars that legimated the plundering of ships or did it have to be a "public" war? In addition, if such plundering was lawful, to whom did the proceeds of the encounter go? We sometimes underestimate the power of one event to provoke thought that might lead to a whole different approach to law. But Grotius thought deeply about this event, and wrote his DJP to respond to such questions.

An important point of departure for Grotius was the observation that his answer would come not from written codes of Roman law but from natural reason. Thus, he puts himself squarely in the natural law tradition which was articulated so forcefully by Aquinas. As mentioned in my other essay on Grotius, he isolates three kinds of law: (1) divine, which he calls either the "primary law of nature" or the "divine volitional law; (2) "primary law of nations" (which he also calls the "secondary law of nature") which consists of the universally agreed-upon principles shared by all nations of the world. He recognizes that disagreement among nations is rampant, but he still has hope that there are principles of just dealing which all at least recognize; (3) "secondary law of nations" or "human volitional law," which consists of the rules that nations are bound by compact or treaty to observe, such as the inviolability of ambassadors, the reclaiming of bodies after death, etc.

Perhaps I can stop here and raise questions for our consideration.

1. If you were writing a treatise on international law, how would you "ground" international law? That is, on what basis would you argue that there is or must be such a body of law? Does there need to be an enforcement mechanism in order for such a body of law to exist? Can you argue for the existence of international law apart from any understanding of natural law? That is, on what basis can one support something like a "Universal Declaration of Human Rights" unless one believes that these Rights are something "inalienable," or "natural" to humans?

2. What is the basic content of international law? Would you break it down in a manner somewhat similar to Grotius--where you have the "basic principles" and then the "rules which nations observe by treaty or compact"? Where do these basic principles come from? We have seen the threefold basic law of Justinian or the basic principle of natural law in Aquinas (to pursue the good and refrain from evil; to give every person his/her due). Some might suggest, and Grotius seems to be open to the suggestion, that the basic content of international law is following "customs" of the nations. But, then again, he places so much emphasis in Book I of the DJB on right and truth, on making sure that if wars are fought they must be fought for just causes, that he would want to ground his concepts for international law in a natural law theory of justice.

3. In class on 9/26 we will look at his treatment of natural law in 1.10, 12 of his work.

Reflections on a Life

Grotius wrote as a member of an "up-and-coming" state in the early 17th century (the United Provinces of the Netherlands). But in the decade after he wrote DJP, he ended up on the wrong side of a complex theological debate which was centrally important to how the Seven United Provinces would go forward. Five states sided with the ruler, and Grotius was on the side of the other two states. Hence, he was imprisoned for several years (where much of his creative intellectual work took place) until his wife pulled off his daring escape, by having him loaded into his trunk, which normally was filled with books, and carried off to freedom. After escaping from confinement in the Netherlands, Grotius fled to France, where he penned the DJB. He was most concerned in all of his work to address the problem of how the modern national states, which had to live with each other (i.e., they couldn't annihilate each other nor could they, like the Roman Empire of old, swallow up each other), could define their relationships to each other when international trade was increasingly the reality of the time. He had great hope that the Christian virtues of charity and patience, inherited from the common medieval past, would serve as a sort of "restraining" force against blind ambition of princes.

One of his most important contributions was chapter 12 of DJP, which was published separately in 1609 as Mare Liberum ("free sea") in which he argued for the primacy of free trade and the freedom of the seas based on the law of nature. He went through various arguments advanced by the other side--that the sea can be monopolized by discovery, occupation, papal grant, prescription or custom, and concluded that none of these justify limitations on rights of nations to use the seas to their fullest. Interference by the Portuguese with these rights, which led to the impressment of the Catharina, therefore justified war.

Conclusion

Grotius was considered to be the most learned man of his times. In fact, one modern scholar has said that his words show him as the most learned man in the West since Aristotle. He was a theologian, dramatist, political scientist, poet, linguist, diplomat and lawyer. Yet, on his deathbed the following words were attributed to him: "By undertaking many things, I have accomplished nothing" (cited in E. Dumbauld, The Life and Legal Writings of Hugo Grotius, 18). But we sometimes little know how "influential" our life is when we are living it. As it turned out, Grotius' thought was foundational for the effort to reconstitute the study of international law around the time of WWI. Today he is revered as the father of international law, and even though his work is hard to get through and imperfectly written and edited, we can understand his passion to try to set relationships between and among nations on a legal footing. His effort is important for us, who sometimes feel that we haven't come much farther in the task than he felt he had.

2106