University of Transnational Business Law

Grotius, Hugo

by Arend Soeteman
Contents
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   1 Introduction
   2 Life and work
   3 Two methods
       3.1 Method a priori
       3.2 Method a posteriori
   4 Raison d’état and rule of law
   5 Evaluation
   6 Related entries
   7 Bibliography
   8 References

Introduction

At the end of the Middle Ages traditional certainties broke away. Copernicus refuted the old Ptolemaic concept of the earth as centre of the universe by denying that the sun circled around the earth. The Reformation wrecked religious unity of christianity. Independent cities with self-confident citizens competed with the noble powers. German farmers revolted against their feudal exploitation. They were defeated, but they changed the balance of powers. France and England developed into national states, which broke the political unity of Europe. Traditional feudal structures as well as traditional religious and political values were under attack. These turbulent changes refocused philosophical attention on a perennial problem at the foundation of philosophy: how can we know which among conflicting beliefs about the world are correct? Which is the right religion? Which is the character of the universe? How should human community be organized? Many conflicting claims are argued: how do we know which claims are right? The dominant answer in these days was influenced by mathematics. Mathematical methods were, it seemed, the most reliable source of knowledge. So why not use mathematical methods to gain certainty in other fields as well. We see this with Descartes, Spinoza and Leibniz. But a little earlier also Grotius, who was a great lawyer but not one of the great philosophers, tried to overcome scepticism  more geometrico: deducing theorems from self-evident axioms.
Life and work

Hugo de Groot, Latinised as Hugo Grotius,  was born in Delft in the low countries in 1583. When he was born the Dutch were fighting their liberation war against the Spanish, which ended with the Treaty of Münster in 1648. Grotius had a classic, humanistic education, first as a philologist, later as a theologian and lawyer. He studied in Leiden, at the university which was given to that city in 1575 by William of Orange as a reward for its heroic defence against the Spanish[1]. He then pursued a governmental career in The Netherlands as a magistrate.. In religious quarrels between the (liberal) remonstrants and the conservative contra-remonstrants Grotius followed his protector Oldebarnevelt, the political leader of the country, in siding with the remonstrants. That was the end of his career as a Dutch magistrate. The commander-in-chief, Maurits of Orange (son of William of Orange) sided with the contra-remonstrants. As usual, the army won. Olderbarnevelt was beheaded and Grotius was sentenced to life in prison  and had all his property confiscated. He was incarcerated in the castle Loevestein. With the help of his wife Mary he escaped in a book trunk and went to France, where he was the guest of Louis XIII. Here he wrote his most famous work De Iure Belli ac Pacis (1625). After the death of Maurits of Orange Grotius lived again in Holland for a short period until he was ordered to leave the country. He returned to Paris and as ambassador of the Swedish queen Christina. In 1645 he died in Rostock while travelling from Sweden to Lübeck. His body was brought to The Netherlands, where it is buried in the New Church in Delft. Grotius was a universal scholar. He was a lawyer, of course, and wrote about law, but he also wrote on religion and history – and even wrote poetry and a drama (1601: Adamus Exul). He corresponded with scholars all over Europe. His legal work answered the needs of his time, which was the time of the religious wars. The massacre of St. Bartholomew, more than ten years before his birth, had demonstrated the misery of the religious fights. It is not improbable that the atrocities of the Thirty Year War have influenced the point of De Iure Belli ac Pacis (i.e. regulating war), although this war is not even mentioned in the book. This later work is different from his earlier work. De Iure Praedae was written about 1606, almost 20 year before De Iure Belli ac Pacis,under the authority of the East India Company (the company monopolizing Dutch trade with East India)[2]. Grotius argues in this important work that the sovereign has his position for the welfare of his subjects, not the other way around. He infers the right of the people (represented by its leaders) to resist a sovereign who misuses his power for other purposes. This was the line of reasoning generally used in The Netherlands to justify its revolt against the Spanish. It can be read in the Apology of William of Orange (1580) and in the Plakkaat van Verlatinghe (Certificate of Leaving, 1581) and it joins with the doctrine of the Calvinist monarchomachs in France. In De Iure Belli ac Pacis however the right to resist is mostly vanished. In this book the law-and-order perspective is more dominant (cf. section IV below). But the later book is not, as the earlier one, the work of a lawyer defending his client. It is more the work of a respected and impartial lawyer, who has to take account of all the complexities of international (dis)order. He cannot take sides, but tries to develop principles and rules which are relevant and authoritative for all parties.
Two methods

Grotius is not a sceptic. In De Iure Belli ac Pacis Grotius deploys Carneades, a Greek philosopher from the second century b.c. who argued against rational Stoic natural law theory, who represent the sceptic point of view, to contrast his own views (prologomena 5 ff). Carneades believes that natural law is a fiction and that, in the end, right is just might. Men are guided by their own interests. They work together in a political community which makes laws because this community and these laws are useful, at least for survival. The validity of these laws is not based on higher values and principles, but only on the might which enforces them. If there is no higher power to keep the political communities or their kings and princes under control then there is nothing to put limits to their going for their own interests (apart from the power of other political communities). Such a line of reasoning leads to the doctrine of the ‘raison d’état’, where the highest power in the state (the sovereign) is itself not bound to any legal norm (Bodin). The function of the sovereign is, as Hobbes said a few years later, to enforce peace. In international relations there is no higher sovereign and therefore, according to this line of thinking, there is no norm. To argue against this for the existence of natural law Grotius makes use of two different methods: the method a priori and the method a posteriori.
Method a priori

The method a priori is the mathematical method: more geometrico. Some principle is proven a priori if the necessary correspondence of its acts with reasonable and social human nature is demonstrated (cf. I.I.12.1). This method is sharp and it gives us certainty. Grotius starts with an axiom about human nature. He holds, against Carneades, that it is wrong to suppose that men by nature are only guided by their own interests. A typical human characteristic is men’s social nature (appetitus socialis). This means that humans have a natural inclination to live peacefully with their fellow humans in a community organized according to their reason. Other animals sometimes have a related inclination, but they don’t have human reason. Humans not only have language, but also the abilities to know general principles and to act according to these principles (prologomena 6, 7). From this rational and social nature of men Grotius deduces the central principles of natural law: we have to respect the property of other persons and to return to them what is theirs, we should keep our promises, we should compensate for damage caused to others by our wrongs and, lastly, we should be punished if we would earn that punishment (prolegomena 8). Every human person can see with his intelligence that what he wants according to his nature –living peacefully with other men-  can only be realised if the fundamental principles of natural law are respected. Natural law, Grotius tells us, would be valid “even if we would admit –which we cannot admit without committing a most serious sin- that God would not exist or at least that He does not meddle with human affairs” (prologomena 11). This famous sentence does not disconnect natural law from its divine origin. Grotius hurries to add that the free will of God is another source of natural law (prologomena 12). What he means is that the relation between human nature and natural law is not contingent but necessary. Natural law may be attributed to God because God has created men, with a rational and social nature. Therefore God has willed natural law as well. Moreover God sanctions natural law. He suspends His judgement until after our death, but such that nevertheless he often makes clear its strength already during our life (prologomena 20).  It is clear for Grotius that God is behind natural law, as is also demonstrated by his explicit commands in the bible. But God, almighty as He may be, cannot make that 2 x 2 is not 4. And in the same way He cannot make bad what is good, according to the created nature of men.
Method a posteriori

The second method used by Grotius to overcome Carneades’ scepticism is, he concedes himself, less sharp, but more common. Some principle is proven a posteriori if it is accepted by all people, or at least by all civilized people. This a posteriori proof does not give certainty, but the fact that a principle is generally accepted makes it probable that it is a valid principle of natural law (I.I.12.1). That, as Grotius tells us,  the method a posteriori is more common certainly applies for Grotius himself. His book is loaded with quotations from a number of classical authors and rules of a great number of people. Many quotations are incorrect or cited out of context. He even quotes a book of Aristotle which does not exist[3]. Perhaps it is an excuse that when he fled to France in his book trunk there was no room for his books as well.
Raison d’état and rule of law

We saw that Grotius develops natural law and rejects the doctrine of the raison d’état: the state is bound by the eternal principles of natural law. But  almost 1 ½ century later Rousseau is not convinced. Grotius denies, he says, that all human power is established to favour its subjects. One could be more logical, but tyrants have nothing to complain[4]. Rousseau is right: in his later work Grotius clearly disconnects himself from the doctrine of the monarchmachs, which he embraced in his younger days (who said that there exists a right to resistance to a sovereign who does not rule in the interest of the people). There are other authoritarian passages as well. We can read in De Iure Belli ac Pacis that we should obey God more than human authorities: if they order something which conflicts with natural law or with divine prescriptions we should not obey. But if, then, the authorities disagree with us and punish us we should not resist (I.IV.1.3). Everyone has a natural right to resist, but as soon as there has been established a political community to keep order that political community has a higher right over us. It has the right to prohibit us to make use of our natural right to resist. And it will as a matter of fact always issue this prohibition because otherwise it could not exist (I.IV.2.1)[5]. Even in religious affairs the political authorities have the supreme competence[6]. Natural law is not the only kind of law; the divine will and human will can also result in the creation of law. Natural law determines which acts are morally wrong or necessary, but there are also acts which are laudable, without being obligatory. They can be left undone without shame. In such cases divine or human laws can create law and hence obligations (I.II.1.3). The source of human positive law within the political community is an original contract, which is valid according to the natural law principle Pacta sunt servanda (prol. 15). The contract is also the base of the laws between political communities (prol. 17). It is, on Grotius’s view,  inconsistent with our nature as rational, social beings that we would have a right of resistance. As we are rational and social we need a political community to live in, to protect us against all possible dangers and to enforce peace. But as soon as this political community has come into existence it determines itself (i.e. its leaders determine) what is necessary to these ends. It is inconsistent with the viability of these political communities that its members have a right of resistance when (they sincerely believe that) the political community is violating natural law by requiring its members to do what is prohibited by natural law. So we need to surrender our natural rights and competences which we have according to natural law, on behalf of our right to self preservation and a peaceful life. It seems probable that the political turbulences of Grotius’ days stimulated this law-and-order perspective, but it does not easily cohere with his natural law views. Natural law and positive can, and frequently do, conflict. Nevertheless, natural law was not abolished. As we saw, even God could not change it. There is an important difference between international positive law and national positive law. National law begins with a contract which is not only a contract to unite into a political community but also a contract by which we subject ourselves to a sovereign who has, from now on, authority over us. There is not such a sovereign in international law. The rise of the modern state at the end of the middle ages and the emancipation of the state from the church called attention to the tension between the doctrine of the rule of law and the doctrine of the raison d’etat. On the one hand, the state makes law according to its own will and according to its own interests. On the other hand the state is seen to be bound by the rule of law. This may refer to only its own laws or it may refer to either generally accepted principles and values or natural law. If the state violates the rule of law, this may imply that its laws are not law or just that they are not legitimate and should not be obeyed. But no matter how we specify the idea, the important point is that there are values and principles which the state should take into account. For Grotius the raison d’état has won within political community. But in international law the rule of law was more prominent.
Evaluation

We might criticize Grotius as Rousseau did. We may add that Grotius’ development of natural law is weak. Even if one concedes that natural law could be derived from human nature, it seems rather arbitrary to characterize human nature as rational and social. Looking around we see a human nature that is irrational and self-centered as well. Hobbes’ analysis that men, being by nature indifferent to other men will necessarily develop into fighting animals without a Leviathan to enforce peace  might be more plausible – then and now[7]. But we can also say something in favour of Grotius. First, he interpreted our natural inclination for self-preservation as a natural right. This was an important step towards  overcoming scepticism. Hobbes was going to build upon  the same idea. As, however, the right to self-preservation is interpreted in an absolute way, it may justify an absolute duty of obedience to a protector of one’s life. Grotius is one of the fathers of the authoritarian line of natural law. Second, the more liberal tradition in natural law can look upon Grotius as its inspiration as well, although Grotius was far from being a modern liberal. By developing natural law from the rational and social nature of men, Grotius develops a system of rules and principles which counterbalances the absolutist consequences of the doctrine of the raison d’état. Moreover, even in the most absolutist interpretation of the raison d’état, it remains that the sovereign receives its authority by contract from their subjects. This implies that there is room for limitations of their competence. If he rules by the grace of God only then he can believe that he is the earthly representative of God’s supreme authority. But if he receives his authority from autonomous individuals who agree to be his subjects then these subjects can stipulate their conditions. It took less then 100 year before this became explicit with John Locke. Thirdly, natural law is also valid between political communities. De Iure Belli ac Pacis mainly concerns this international law, more specifically the law on war and peace, which defines the conditions under which a sovereign state may enter into a war (ius ad bellum) and  what may or may not be done in war (ius in bello). Even such an extreme fight as a war is governed by rules and principles. It seems that Grotius became a defender of absolute state authority from necessity. But at the same time he maintained the validity of natural law, between and within political communities, on the strength of his humanitarian ideals. It is this tension between Realpolitik and idealism which makes him vulnerable, but also fascinating.
Related entries

Natural Law
Bibliography

Primary sources:

Grotius, H., The Law of War and Peace, English translation of De Iure Belli ac Pacis by F.W.Kelsey, Oxford/Londen, 1925

Grotius H, De iure praedae commentarius I, translation by G.L.Williams, Oxford, 1950


Secondary sources:

Blom, Hans W. and Laurens C.Winkel, Grotius and the Stoa, Assen, 2004

Dunn, John and Ian Harris (eds.), Grotius (Great Poltical thinkers, 7)

Haakonssen, Knud (ed.),  Grotius, Pufendorff and Modern Natural Law, Ashgate/Dartmouth, 1999

Tuck, Richard, Philosophy and Government, chapter 5, Cambridge, 1993
References

[1] As a matter of fact, the citizens of Leiden was given a choice: they could choose between lower taxes and a university. They earned eternal respect by choosing the university.

[2] This book was not published before the 19th century.Mare Liberum, defending the right of the free sea, was part of this book (as chapter 12) but was published in 1609 already. The free sea was of course important for the commercial interests of the East India Company.

[3] In prologomena 36 Grotius refers to a book of Aristotle “The justified principles of the war”.  See J.F.Lindemans in: Hugo de Groot, Het recht van oorlog en vrede, Prolegomena en boek 1, translated, introduced and annotated by J.F.Lindemans, Ambo/Baarn, 1993, p. 245, note 132.

[4] Jean-Jacques Rousseau, Du Contrat Social, 1752, Book 1, chapter 2. The reference is to De Iure Belli ac Pacis I.III.8.14. See also De Iure Belli ac Pacis I.III.8.1 where Grotius concludes that as a separate person can make himself slave of a master a whole people can do the same. Rousseau comments in Contrat Social book I, chapter 4, that there is no rational reason why a whole people should sell itself.

[5] One might ask whether Grotius accepted his own standards for himself. He clearly did not object escaping from his prison. This seems to violate the principle that one should not resist punishment from the government, even if one was wrongly sentenced. Grotius seems not to be a Socrates. For his defense we can argue that he did not recognize prince Maurits of Orange as the legitimate government. Maurits was a usurpator, who conquered the might in the low countries after a coup d’état. There is nothing in Grotius’ theory which forbids him to escape punishment from usurpators.

[6] This is argued in De Imperio summarum potestatem circa sacra, first published in 1647, but written in 1614.

[7] This foundational problem is not specific for Grotius: it is one of the problems which is inherent in natural law theory. See Pauline C.Westerman, The Disintegration of Natural Law Theory, thesis Rijksuniversiteit Groningen, Brill: Leiden, New York, Köln, 1997