GROTIUS, HUGO
(1583–1645)

The Dutch jurist and statesman Hugo Grotius, or Huig de Groot, was born at Delft, of a distinguished Calvinist family. He entered the University of Leiden when he was eleven, graduating with great distinction at the age of fourteen. At fifteen he served as a member of a Dutch mission to France and obtained the degree of doctor of law at the University of Orléans. In 1601 Grotius was asked for a legal opinion by the Dutch East India Company in an international case, which appears to have spurred the writing of his pamphlet in defense of freedom of the seas (Mare Liberum, 1609) and generally stimulated his enduring interest in international law. In 1607 Grotius was appointed advocate general of the fisc of the provinces of Holland, Zeeland, and Friesland. In 1613 he became the pensionary for Rotterdam and went to England as a member of a Dutch diplomatic mission. A bitter theological dispute, in which Grotius sided with the estates of Holland against orthodox Calvinism (supported by Prince Maurice of Holland) led to a special trial and the condemnation of Grotius to life imprisonment. During his imprisonment he wrote the famous pamphlet, De Veritate Religionis Christianae (Leiden, 1627). In 1621 Grotius escaped from prison and fled to France, where he wrote his great work De Jure Belli ac Pacis (1620–1625), dedicated to Louis XIII. Grotius later returned to Holland. From 1634 to 1644 he was Swedish ambassador to France. He was recalled to Sweden in 1644 and died in Rostock on his way back from Sweden to Holland shortly after.

Grotius's enduring influence upon legal science and, in particular, on the science of international law may be attributed to qualities somewhat comparable to those of John Locke. Both men formulated, articulated, and systematized, at a critical point in history, certain ideas and principles that suited the needs of a changing society.

But whereas Locke articulated the rights of the individual in a rapidly expanding, acquisitive, and increasingly antiabsolutist society, Grotius understood that the international society of burgeoning sovereign states had to find and abide by certain rules of conduct in war and peace, formalizing diplomatic relations and mutual respect for sovereignty. Since modern international society is still dominated by the legal and political supremacy of the national state, Grotius's classical treatise, De Jure Belli ac Pacis, is still an essential foundation for international law. The international order of the Middle Ages, based on the twin foundations of the ecclesiastical authority of the Church of Rome and the political authority of the emperors, had crumbled together with the social, economic, and spiritual conditions on which it was based. New kingdoms, dukedoms, principalities, and cities had emerged from the debris. Europe was torn by wars, big and small, motivated by religious, dynastic, political, and social conflicts. While Grotius wrote his principal work, the Thirty Years' War was raging in much of Europe, demonstrating the destructive effects of the lawlessness of a society that had not yet developed new rules of intercourse appropriate to the emerging society of sovereign nations. There was no prospect of reestablishing the international authority exercised by popes and emperors. There was no hope of abolishing or outlawing war. But there was an urgent need to establish a new code of behavior, and, more than that, a need to humanize the conduct of war even within modest limits. To lay the foundations for such a development was a gigantic task, a task only for someone who could combine the qualities of philosopher, political scientist, jurist, humanist, and diplomat. That man was Hugo Grotius, a man of prodigious learning—theologian, philologist, historian, and poet, as well as jurist—who was also an active diplomat.

All his various interests are reflected in his great treatise, a rambling work ranging over many fields of human knowledge, studded with quotations and references to innumerable scholars and sources. De Jure Belli ac Pacis established a partially legalized system of international relations by blending certain general principles of political and moral philosophy with state practice. It is this combination that gives to Grotius's work the flexibility and durability that enabled subsequent generations to make use of it by emphasizing the one or the other aspect.

Natural Law

Grotius was first a major exponent of the philosophy of natural law and of social contract. Second, he was an Aristotelian whose deepest and most abiding belief was in the power of reason and the rationality of man. Third, Grotius was a pragmatic diplomat who, through the observation and practice of diplomacy in a singularly disturbed and savage period, was fully aware of the practices of states in peace and war—and it was war that dominated both the life of the people and the thought of Grotius. But fourth, Grotius was a humanist in the spirit and tradition of his master, Erasmus of Rotterdam, a man who abhorred the brutality and lawlessness of war and violence, and whose principal purpose, therefore, was not only to civilize the conduct of war but also to place certain limitations upon its legality. He combined this last objective with his belief in reason and in natural order in the formulation of his famous theory of the bellum iustum (the just war).

As a natural law philosopher, Grotius was much closer to the Stoics than to the Scholastics. Like the former, he derived the postulates of natural law from principles of reason rather than of divine order. Such reason was founded in the human intellect. "Natural law is so immutable that it cannot be changed by God himself."

The natural law doctrine provided Grotius with the theoretical foundation for certain overriding principles of order in the relations between states. It also gave him faith in the rationality of man and in man's potentialities for developing a better society in accordance with the needs of social and international life. Grotius was, of course, well aware that there was in his time no law-giving authority superior to the will of the states. It was, therefore, necessary for him to find some principle that could bind the nations to a common standard of behavior. He found this principle in pacta sunt servanda, the respect for promises given and treaties signed. In the absence of an international sovereign authority, modern international lawyers, such as Dionisio Anzilotti and Hans Kelsen, have reaffirmed the same principle as the metalegal foundation of international law.

Grotius formulated a large number of other principles of natural law that inevitably share the weakness of all natural law teachings—that is, the sublimation of certain political postulates into immutable principles of order. Among Grotius's rules of natural law were respect for other people's property and the restitution of gain made from it, the reparation of any damage caused by a person's (or nation's) fault, as well as certain elementary principles of punishment. The political coloration of natural law is more evident in Grotius's postulate of the freedom of the seas. This postulate corresponded to the interests of the Netherlands as the world's leading maritime nation. It was opposed by the Englishman, John Selden (Mare Clausum, London, 1635), at a time when England was still struggling against stronger maritime nations.

Social Contract

The other pillar of Grotius's legal philosophy was the theory of social contract, which also led him to emphasize the supremacy of the compact as the highest binding principle of law. Unlike later theorists of social contract, Grotius considered the contract as an actual fact of human history. In his view, the constitution of each state had been preceded by a social contract, by means of which each people had chosen the form of government they considered most suitable for themselves. While each people had the right to choose their own form of government, they forfeited the right to control or punish the ruler, however bad his government, once they had transferred their right of government to him. Generally, Grotius, like Thomas Hobbes, reflected not only the need of a disturbed society for strong governmental authority, but also the essentially absolutist and predemocratic character of government of that period. In his own official and diplomatic career Grotius represented autocratic governments.

International Law

Aware of the insufficiency of natural law to supply more than certain general guiding principles, Grotius based the principal body of international law on ius voluntarium (the body of treaties and other engagements that form the bulk of international state practice). Although a realist, Grotius was not a cynic. He believed not only in the essential rationality of man and peoples, but also in the necessity of progress from war to peace, from international anarchy to international order. His principal contribution in this respect was his theory of the bellum iustum. A major part of the second book of his treatise was devoted to the problems of the legality of war. For a war to be just, there must exist a legal cause for it. Essentially, there are only three types of just wars: Those that are conducted in defense against an actual or immediately threatening injury; those aimed at the recovery of what is legally due; and those inflicting punishment for a wrong done. Each of these categories allows for a great degree of latitude, especially in the absence of an impartial international judicial authority that can decide between conflicting claims.

Nevertheless, this emphasis on the need to justify war, and the limitation of its justification to causes that even today would be regarded as essentially defensive against wrongful injury, was a remarkable contribution to international order. It became obscured and forgotten during subsequent centuries of absolute national sovereignty, particularly during the nineteenth century when the aggressive national state celebrated its greatest triumphs, in practice as in theory. In modern time, the League of Nations Covenant and the United Nations Charter have attempted once again to distinguish between just and unjust wars. The future of humankind may well depend on the elaboration of an authoritative method of finding reliable and enforceable criteria for distinguishing between wars of aggression and wars of defense and on the establishment of an impartial forum to decide on claims for the reparation of wrongs alleged to be inflicted by one state on another.

International law in our own day is still essentially based on state practice as recorded in custom, treaties, and other international agreements; but these practices allow for the evolution of international law, not so much in the terminology of natural law as in the similarly conceived evocation of "general principles of law recognized by civilized nations." Some of these principles were applied, with dubious theoretical justification, in the Nuremberg and Tokyo trials of German and Japanese war criminals.

Grotius's doctrines were inevitably a mixture of reactionary and progressive principles. On the one hand he felt compelled to justify many barbarous practices of war, subsequently condemned in modern rules of warfare (yet surpassed in cruelty by modern war). Again, Grotius concurred with the great majority of legal and political philosophers in denying to the individual the right of resistance to an oppressive sovereign, although he affirmed the right of passive resistance of an individual against unjust wars. On the other hand, Grotius anticipated by centuries some of the principles of the Nuremberg Charter by regarding as justified a war waged to prevent the maltreatment by a state of its own subjects. And Grotius's concern with the individual stands in noble contrast to subsequent absolutist political theories.

In working and thinking within the limitations of his time, Grotius did not differ from any other philosopher, jurist, or political scientist. What is remarkable is that, in the midst of a war that threatened to undermine the whole fabric of European society, he developed principles and standards that can still serve as the basic themes for the struggle for international order in our time.

See also Aristotelianism; Hobbes, Thomas; Locke, John; Natural Law; Peace, War, and Philosophy; Philosophy of Law, History of; Political Philosophy, History of; Social Contract; Stoicism.

Bibliography

primary works

De Jure Belli ac Pacis Libri Tres. Paris, 1625. Translated by F. W. Kelsey et al. Oxford, 1925.

secondary works

Balogh, Elemér. "The Traditional Element in Grotius' Conception of International Law." New York University Law Quarterly Review 7 (2) (1929): 261–292.

Basdevant, Jules. "Grotius." In Les fondateurs du droit international, edited by A. Pillet. Paris: V. Giard and E. Brière, 1904.

Bull, Hedley, Benedict Kingsbury, and Adam Roberts, eds. Hugo Grotius and International Relations. Oxford: Clarendon Press, 1990.

Edwards, Charles S. Hugo Grotius: The Miracle of Holland. Chicago: Nelson-Hall, 1981.

Gurvitch, George, "La philosophie du droit de Grotius et la théorie moderne du droit international." Revue de métaphysique et de morale 34 (2) (1927): 365–391.

Knight, W. S. M. The Life and Works of Hugo Grotius. London: Sweet and Maxwell, 1925.

Lauterpacht, Sir Hersch. "The Grotian Tradition in International Law." British Year Book of International Law 23 (1946): 51.

Miller, Jon, ed. "Stoics, Grotius, and Spinoza on Moral Deliberation." In Hellenistic and Early Modern Philosophy. Cambridge, U.K.: Cambridge University Press, 2003.

Nussbaum, Arthur. A Concise History of the Law of Nations. New York: Macmillan, 1954.

Onuma, Yasuaki, ed. A Normative Approach to War. Oxford: Clarendon Press, 1993.

Ter Meulen, Jacob, and P. J. J. Diermanse. Bibliographie des écrits imprimes de Hugo Grotius. The Hague: Nijhoff 1950.

Tuck, Richard. Philosophy and Government 1572–1651. Cambridge, U.K.: Cambridge University Press, 1993.

Tuck, Richard. The Rights of War and Peace. Oxford: Oxford University Press, 1999.

Van Eysinga, W. J. M. Huigh de Groot, een Schets. Haarlem: Tjeenk Willink, 1945.

Wolf, Eric. Grotius, Pufendorf, Thomasius. Tübingen, 1927.

Wolfgang Friedmann (1967)

Bibliography updated by Philip Reed (2005)

Grotius, Hugo

WORKS BY GROTIUS

SUPPLEMENTARY BIBLIOGRAPHY

Huig de Groot (1583–1645), better known by the Latinized version of his name, Hugo Grotius, was born at Delft in the province of Holland. He was carefully educated by his father, whose intellectual interests were both broad and profound, and who imbued in him the characteristic civic pride of the Dutch patriciate.

Grotius was extraordinarily young when his exceptional gifts became apparent. From 1594 to 1597 he studied in the faculty of arts of the University of Leiden, the Protestant university that had been opened in 1575. In 1599 he was called to the bar at The Hague; and in 1607 he received his first public office as advocaat fiscaal (deputy attorney general) at the highest law court in the province of Holland. Five years later he was appointed pensionary of Rotterdam, a political office that gave him power not only in the city itself but also in the States (the representative assembly) of the province, where he acted as Rotterdam’s representative.

Meanwhile, Grotius’ publications established him both as an accomplished neo-Latin poet and dramatist and as an ambitious historian and jurist. As a jurist he wrote a short book The Freedom of the Seas (1609)—it was, in fact, just one chapter of the manuscript De jure praedae (1604), not published until 1868—in which he tried to prove that no authority is entitled to claim sovereignty over the high seas; although it was aimed at Spanish pretensions, the book also aroused the wrath of James i of England.

In the 1610s Grotius became one of the major supporters of the grand pensionary, Johan van Oldenbarnevelt, who was engaged in a bitter struggle with the stadholder, Prince Maurice of Orange, on two issues: Oldenbarnevelt and Grotius supported the cause of the Arminians and of provincial sovereignty, particularly that of Holland. After their defeat in 1618, Oldenbarnevelt was executed and Grotius sentenced to life imprisonment. Thanks to the resourcefulness of his wife, Grotius escaped to France after three years; he was welcomed by Louis XIII, who paid him a pension, albeit irregularly. From 1621 to 1631 he lived in Paris with his family in relatively poor circumstances. He lived by his pen, expecting all the while that the justice of his cause would lead to his eventual rehabilitation in the Netherlands. In 1631 he made an attempt to re-establish himself there but was forced to leave the following year. In 1634 he accepted the offer of Queen Christina of Sweden to become her ambassador to France, and for ten years he worked in that capacity in Paris, a somewhat eccentric scholar of bourgeois origin among titled professional diplomats.

Diplomacy bored Grotius, and he could not afford to wait long years for his salary to be paid, as could his noble colleagues. He tried to compensate for his inadequacy as a diplomat by working for a goal far above the pettiness of routine politics: the restoration of Christian unity. During his last years, this came to be his major preoccupation. In 1645 he went to Sweden to offer his resignation. He went by way of Holland, where at last he was welcomed with the warmth he had been expecting in vain for two decades. On the journey back from Sweden, where Christina had received him with utmost politeness and with equal politeness accepted his resignation, his ship was driven off course, and he went ashore on the Pomeranian coast. He took the road to Lübeck but did not reach that city: forced to rest in Rostock, he died there from exhaustion.

Grotius’ intellectual achievement has a paradoxical character. He won great fame as a poet and dramatist, as a historian, a philologist, a theologian, and, of course, a jurist. But learned discussions about the contributions he made to all these different fields have not come to any conclusion about whether he was essentially a conservative who put together in magnificent syntheses opinions previously held by others or an innovator boldly treading new ground. The endless variety of his work, the mixture of precision and suppleness in his thought, and the sheer bulk of his learning make it almost impossible to determine with any certainty the degree of originality of his views.

He was very much a man of the baroque age. His motto, ruit hora (time flies), the Latin language in which he wrote most of his books, and his profound awareness of life’s antinomies indicate how fully he belonged to the civilization of his time. Yet in the deeply pessimistic early seventeenth century his optimism and rationalism were exceptional and so effortless that they may seem shallow in comparison with the views of such philosophers as Descartes. His theological studies were inspired by deep religious feelings, but they brought him into conflict with Protestants of various denominations and gave both Catholics and, later, deists the erroneous impression that he supported their views. His constant endeavors to heal the breaches in the Christian church caused the most confusing misunderstandings and involved him in acrimonious controversy.

During his imprisonment, from 1618 to 1621, Grotius wrote, in rhyme, The Truth of the Christian Religion; it was published in Dutch in 1622, and in 1627 Grotius’ own Latin version followed. In this simple book, written for seamen who might be impressed by foreign religions, Grotius explained and lauded the main tenets of Christianity. The book was a great success; it was translated not only into all the major European languages but also into Danish, Irish, Hungarian, and Arabic, and there are 110 known editions of it.

Grotius’ masterpiece, The Law of War and Peace (1625), was also an immediate and widespread success, if not on the same scale as his little book on Christianity: it has gone through at least 75 editions and has been translated 24 times. In this book he presented his famous doctrine of the just war. War, in his view, is justified as a means of obtaining justice in cases where no law court exists to give a ruling upon the matter under dispute. Most of these cases are, of course, international conflicts, such as the revolt of the United Provinces against Spain. A contestant may take up arms in order to defend his property or his rights, to take possession of what is due to him, or to punish criminal offenses. Thus, war is essentially a lawsuit carried out by armed force because there is no court that can deal with it.

Other concepts are also presented in this large book, which is like a warehouse of opinions, quotations, conflicting doctrines, and debates. Especially noteworthy is Grotius’ doctrine of natural law, for it exerted considerable influence, even if it was neither coherent nor strikingly original. Since he considered natural law to be basic to all social organization, international or national, Grotius’ initially juridical theory developed into a more general one that analyzed and explained not only the conditions of international justice but every aspect of human society. In other words, his work pertains as much to general sociology as to international law.

Grotius defined the law of nature as “a dictate of right reason, showing the moral necessity or moral baseness of any act according to its agreement or disagreement with rational nature, and indicating that such an act is either commanded or forbidden by the author of nature, God” (1625, pp. 20-21 in a 1949 edition). This does not differ essentially from scholastic conceptions, and it is somewhat misleading to claim, as has often been done, that Grotius made an original contribution by secularizing the medieval interpretation of natural law. For Grotius, just as for the medieval thinkers and the sixteenth-century Spanish lawyers whom he quoted, the law of nature is an objective datum, an absolute norm given for all eternity. It is only later in the century, with Hobbes and other theorists, that the law of nature, identified with the instinct of self-preservation, developed into an essentially individualistic, subjective, and secular concept. Grotius, according to Erik Wolf (Wolf 1939) saw God, nature, and reason as only different names for the metaphysical foundation of life, which to human beings becomes manifest in law. Society is a natural and necessary form of concrete law because man is a social being endowed with reason. Thus, human society is also by definition rational.

These premises served Grotius as starting points for determining the rational quality in social and political life. It was not his purpose to draft a political theory. Various political concepts that seemed essential to his contemporaries were rather indifferently treated by him. Sovereignty, for example, did not mean much to a thinker educated in the corporative, patrician Dutch republic that was slowly emerging when he was young. Yet he transcended his origins by regarding all nations, sovereignties, and even churches as mere elements of the largest possible social entity, the human race in general. Therefore, the societies under examination appeared to him as manifestations of a social and ethical order in which each social element has its place, determined by its own existential principle.

But all of them are embraced by the corporative unity which is humanity—primarily, of course, Christian humanity.

The Law of War and Peace is more than a philosophical and sociological monograph. To make it useful to the practical statesman, Grotius endeavored to determine the justifiability of particular actions that are often taken prior to war or in war, according to simple principles laid out by him. Although, for example, Gustavus Adolphus is said to have consulted the book frequently while campaigning in Germany, it is obviously impossible to assess the actual impact of its prescriptions on the conduct of war. But this much is certain: the work exercised a profound influence on the development of international law, and even in the present century it is referred to not only by professional lawyers but also by statesmen. The remarkable mixture of idealistic optimism—for in spite of international chaos, Grotius viewed the ethical content of natural law as a principle that automatically asserts itself, since, in the last analysis, rational and natural behavior are identical—and realism, which sprang from a critical study of history, rendered his concepts and advice applicable to many situations and attractive to many different groups.

E. H. Kossmann

[See alsoInternational lawand the biography ofVattel.]

WORKS BY GROTIUS

(1597–1628) 1928-1965 Briefwisseling van Hugo Grotius. 4 vols. Edited by P. C. Molhuysen and B. L. Meulenbroek. The Hague: NijhofF. → Additional volumes are projected.

(1604) 1950 De jure praedae commentarius: Commentary on the Law of Prize and Booty. 2 vols. Oxford: Clarendon Press. → The manuscript of 1604 was first published in 1868.

(1609) 1916 The Freedom of the Seas: Or, the Right Which Belongs to the Dutch to Take Part in the East India Trade. New York: Oxford Univ. Press. → First published as Mare liberum.

(1622) 1823 The Truth of the Christian Religion. 16th ed. Corrected and illustrated with notes by Le Clerc. Oxford: Baxter. → First published in Dutch.

(1625) 1962 The Law of War and Peace: De jure belli ac pacis. Translated by Francis W. Kelsey, with an introduction by James Brown Scott. Indianapolis, Ind.: Bobbs-Merrill. → An edition was published in 1949 by Black.

1687 Epistolae quotquot reperiri potuerunt: In quibus praeter hactenus editas, plurimae theologici, iuridici, philologici, historici, et politici argumenti occurrunt. Amsterdam: Blaeu.

SUPPLEMENTARY BIBLIOGRAPHY

Knight, William S. M. 1925 The Life and Works of Hugo Grotius. London: Sweet & Maxwell.

Meulen, Jacob TER; and Diermanse, P. J. J. 1950 Bibliographic des écrits imprimés de Hugo Grotius. The Hague: Nijhoff.

Meulen, Jacob TER; and Diermanse, P. J. J. 1961 Bib liographic desécrits sur Hugo Grotius imprimés au Xvw siecle. The Hague: Nijhoff.

Wolf, Erik (1939) 1963 Grosse Rechtsdenker der deutschen Geistesgeschichte. 4th ed., rev. & enl. Tu bingen: Mohr. → See especially “Hugo Grotius,” pages 253–311.

GROTIUS, HUGO

Jurist, statesman, humanist, known as the father of international law; b. Delft, Holland, Oct. 10, 1583; d. Rostock, Germany, Aug. 28, 1645. Born into a respectable burgher family, Grotius (Huigh de Groot) was considered a child prodigy. While a boy, he gained international fame for skillful compositions of Latin poetry and was accomplished in the use of Greek and Hebrew. At 15, Grotius had completed not only his studies in jurisprudence at the University of Leiden but also mastery of philosophy, theology, history, and belles lettres.

Career. Grotius began legal practice in 1599 as an advocate at The Hague. In 1604, before the Prize Court of the Dutch Admiralty, he successfully proved the right of a ship commander of the Great United Company of the East Indies to take as a lawful prize the ship and cargo of Portuguese who were harassing Dutch trade in the East Indies. On the basis of this litigation. he wrote his De iure praedae commentarius (Commentary on the Law of Prize) in which he developed his initial system of the law of nations. The manuscript remained unpublished until after its accidental discovery in 1868, except for a portion developing the doctrine of freedom of the high seas that was published in 1609 under the title of Mare liberum. In 1607, Grotius became attorney general of Holland and, in 1615, he became first magistrate of Rotterdam. The Dutch phase of his career then ended abruptly during the religious strife between the moderate, liberal Calvinists (Arminians), to whom he belonged, and the uncompromising, conservative Calvinists (Gomarians). Grotius was profoundly disturbed by the continuing divisions in Calvinism and strove sincerely for unity among all Christians. In 1619, under Prince Maurice of Orange, Grotius was condemned to life imprisonment. He escaped in 1621 and remained in exile virtually all of his remaining life. In 1625, while in France, he completed his monumental work De iure belli ac pacis libri tres (On the Law of War and Peace), which was an immediate success. From 1635 to 1645, he served as the Swedish ambassador to the French court.

Although the hostility of his countrymen was aroused chiefly because of his theological writings, it was Grotius's work in jurisprudence that earned him lasting fame. He wrote several books on Dutch law and history. De iure belli ac pacis was the first concise and systematic treatise on international law, although already formed in nucleus in the earlier De iure praedae. His political theory and legal system did not represent a break but rather the continuance and summation of ideas that had their origin in the writings of Aristotle and the Stoics and came through the medieval school to the modern age. In particular, Grotius was aware of and in accord with the ideas on the law of nature and the law of nations developed shortly before him by the Spanish theologians, among them Francisco de vitoria (c. 1480–1546) and Francisco suÁrez (1548–1617), to whose works he referred.

Natural Law Theory. Grotius held the primary bond between men to be their common rational and social nature. The principles of the latter are known to every mature man and form the basic law governing human relations in all phases, namely, the natural law. This law is in conformity with the divine law, although it exists of itself and can be known without revelation. Indeed, Grotius held that it would be the same even if, per impossibile, there were no God, thus admitting for subsequent development a principle that, by reducing reason to nature, radically transformed the concept of natural law. In the theory of Grotius, the natural law is a real law, enforceable by men in case of infringement by a wrongdoer. It consists in the first place of certain strict commands and prohibitions. These are self-evident, or can be arrived at by conclusions from self-evident principles. However, principles of the law of nature can also be arrived at in another way, "in concluding, if not with absolute assurance, at least with every probability, that that is according to the law of nature which is believed to be such among all nations, or among all those that are more advanced in civilization" (De iure belli 1.1.12.42). Acceptance of the broad consensus on principles of right and justice is thus the second method of determining the law of nature.

But the law of nature is not the only law valid in human communities. It can be supplemented by volitional laws, established by the lawgiver within states based on the consent of the governed, or by custom observed as binding among nations: "For whatever cannot be deduced from certain principles by a sure process of reasoning, and yet is clearly observed everywhere, must have its origin in the free will of man" (ibid. ). Thus, according to Grotius, nations are subject in their mutual relations to two laws, the basic law of nature and the supplementary, customary law of nations. It is noteworthy that this distinction was made also by Suárez (De Legibus ac Deo Legislatore 2.19).

As real laws, both the law of nature and the law of nations have their outward sanction in force. The use of force is morally permissible in order to vindicate or defend one's rights, or to punish a wrongdoer. Its ultimate form is war, which can be waged when there are no authorities or courts above the wrongdoing and suffering parties. Grotius recognized in substance the scholastic doctrine of the just war (see war, morality of). Every legal right can eventually form a just cause for war. The bulk of his treatise is the quest for these various rights of nations culminating in a system of the law of nations.

As an observant lawyer and practicing statesman, Grotius had to admit that there exist customs among nations that are not necessarily in conformity with the law of nature. Specifically, wars are not always fought for just causes only. He admitted that inevitable ignorance on the part of statesmen sometimes makes recognition of just causes impossible. Similarly, Vitoria had recognized the ignorantia invincibilis. However, Grotius admitted that wars fought between sovereign nations are legal and produce lawful consequences because the customs of nations—sometimes contrary to the law of nature— consider them as such. Thus, he made the important distinction between the "just war" and the "legal, formal, public war." According to Grotius, it is a lesser evil to admit the legality of war and to grant legal status to both belligerents when the latter are sovereign nations. The belligerents and third states thus can be subordinated to strict rules of war and neutrality, which is better than to leave application of force without any check. Nations, while entitled to use force, must observe the agreed upon limitations and should introduce certain temperamenta or mitigations to avoid unnecessary suffering. It is out of these that subsequent developments produced the body of humanitarian rules applicable to belligerents.

The deemphasis of the necessary agreement that must exist between the law of nature and the law of nations and the emphasis on the voluntaristic principle of the consent of nations that Grotius introduced in his justification for the so-called "legal, formal, public or lawful war," where both belligerent parties are legally equal and lawfully employing force, was slowly taken over into all fields of international law. It was not Grotius's intent that this should be so, but nevertheless his teachings became a source of the later development of the positivist conception of international law. In this view, the consent of nations became the highest criterion and basis of all legal obligations. The criterion of the rational and social nature of man, on which Grotius based his legal system, was slowly lost to sight.

See Also: natural law in political thought.

Bibliography: j. ter meulen and p. j. j. diermanse, Bibliographie des écrits imprimés de Hugo Grotius (The Hague 1950). h. basdevant, "Hugo Grotius," Les Fondateurs du droit international (Paris 1904). a. h. chroust, "Hugo Grotius and the Scholastic Natural Law Tradition," The New Scholasticism 17 (1943) 101–133. j. kosters, "Les Fondaments du droit des gens," Bibliotheca Visseriana 4 (1925). r. fruin, "An Unpublished Work of Hugo Grotius," ibid. 5 (1925). w. s. m. knight, The Life and Work of Hugo Grotius (London 1925). h. lauterpacht, "The Grotian Tradition in International Law," British Yearbook of International Law 23 (1946). p. p. remec, The Position of the Individual in International Law according to Grotius and Vattel (The Hague 1960).

[p. p. remec]

Grotius, Hugo (1583–1645)

A Dutch jurist and historian, Hugo Grotius (born Huig de Groot) was the first to set out important concepts of international law. He was born in the town of Delft and was a precocious student of Latin, writing his first poems in that language at the age of eight. Schooled by his father and his tutors in classical humanism, he entered the University of Leiden at the age of eleven. He graduated four years later, his reputation as a brilliant scholar rapidly spreading after an appearance at the court of King Henry IV of France. In 1599 he earned his doctorate in law at the University of Orléans. Under the patronage of Johan van Oldenbarnevelt, Land's Advocate of Holland, he advanced in the ranks of public officials, and was named by the Dutch government as an official historian in 1601.

At this time Holland was at war with Portugal; the battle was taking place far from the European continent, in the distant seas of East Asia and the Spice Islands. In 1603, when a ship of the Dutch East India Company seized a Portuguese merchant ship, the Santa Catarina, in the Straits of Singapore, the arrival of the seized goods in Holland touched off a legal controversy. Grotius was called on by the Dutch East India Company to defend their actions and the seizure of foreign property at sea. Grotius wrote De Indus, also known as The Law of Prizes, a treatise that set out first principles of natural law. A single chapter, “The Free Seas,” was published in book form in 1609. Because the trading company won its case, the full treatise was never published and remained unknown until 1864, when it was rediscovered and appeared as On the Right of Capture.

Grotius defended the rights of free movement and trade in The Free Seas. The concept of “freedom of the sea” in effect meant that nations could harass rivals and seize their property at will, and that no court could claim jurisdiction over the claims of a wronged party. Grotius was called on to defend the Dutch East India Company in its disputes with the East India Company of England; much later England would pioneer the concept of territorial seas by declaring its sovereignty to extend 3 miles (4.8km) from its shoreline.

Grotius attained the post of pensionary, or representative, of the city of Rotterdam in 1613. He was soon involved in a religious dispute involving Jacobus Arminius, a professor at the University of Leiden, and those following a strict interpretation of the teachings of John Calvin. Grotius was asked by the States of Holland to support Arminius's position that Calvinist doctrine was incorrect, and that religious belief should be left up to the conscience of the individual. The dispute flared into outright rebellion, with Grotius and his patron Oldenbarnevelt defying the authority of the Prince of Orange, Holland's head of state.

For his part in inspiring these events, Grotius was arrested in 1618 and sentenced to life in prison (Oldenbarnevelt was executed). Hiding himself in a chest of books, he escaped in 1621 and fled to Paris, where King Louis XIII rewarded him with a pension that allowed him to research and write his most famous works, including On the Truth of the Christian Religion (1627), which was translated into many languages and brought to Asia by missionaries. Grotius also addressed the issue of a common law among nations in On the Laws of War and Peace, published in 1625. This treatise explains a just war as based on universal principles of “natural law,” which follow from the natural order of the world and which should be binding on all nations. On the Laws of War and Peace also deals with legal conduct during war time, the “rules of warfare,” a revolutionary concept in a Europe torn apart by endless wars undertaken by princes and kings for purely personal gain.

Grotius's legal and religious opinions made the powerful Cardinal Richelieu of France one of his most dangerous enemies. Fearing trouble in Catholic France, he returned to Holland in 1631, but his refusal to admit his guilt and the error of his opinions forced him again into exile. He moved to Germany and then to Sweden, where in 1634 he won an appointment as the ambassador to France. In 1645, while sailing from Sweden, he was shipwrecked and forced to swim to shore, dying two days later of exhaustion.

GROTIUS, HUGO

GROTIUS, HUGO (1583–1645), or Huigh de Groot, was a Dutch lawyer, diplomat, historian, poet, philologist, and theologian. Grotius was born at Delft on April 10, 1583, into a socially and politically influential family. Following three years at the University at Leiden and a brief period accompanying a diplomatic embassy to Paris, he returned to Holland at the age of sixteen to become an advocate at the courts of the Hague. In 1607 Grotius was appointed to the office of Advocate-Fiscal (attorney general) of Holland. He married Maria van Reigersberch in 1608.

As a result of an assocation with the Dutch East India Company, Grotius wrote his first major legal treatise, De jure praedae (On the law of prize, 1604–1605), which presents a theory of natural law based on divine will. In 1625 he published his most important book, De jure belli ac pacis (On the law of war and peace), in which he again pursued the topic of natural law and its role in international relations. Here Grotius reveals his concern for the lack of restraint in waging war in the Christian world. He examines the theoretical justification for war and the rules that govern the actual waging of war. He then distinguishes natural law (identical with the law of God but knowable apart from divine revelation) from the voluntary laws of nations that exist between civil communities. Both these types of law he finds binding in relations between states. In the case of a conflict between natural and voluntary law, the law of nature should prevail, although the application of this principle is qualified. In addition to delineating the conditions of waging a just war, Grotius also advocates temperamenta, or mitigations, in the conduct of war. To avoid unnecessary suffering, he counsels communities to circumscribe their tactics in keeping with the perfect law of Christ, which, though itself not a basis of law, provides an ideal.

Grotius was also involved in the religious affairs of his day and strongly committed to the cause of Protestant unity. In his 1612 correspondence with Isaac Casaubon at the court of James I of England, he advocated a synod of Protestant churches in order to establish a common confession of faith that would protect against the development of heresy in the individual churches, help them present a united front against any papal aggressions, and yet allow moderate Roman Catholics to see their integrity. Grotius's hopes for such a meeting were, however, disappointed, in part because he was already involved in a heated religious and political controversy. He represented the States of Holland in a conflict that began with the appointment of a professor of theology and escalated into a major battle between church and state and between the local and the central governments within the Republic of the United Netherlands.

After Prince Maurits came to power Grotius was sentenced to life imprisonment (May 18, 1619). While in prison he wrote Introduction to the Jurisprudence of Holland, Annotations of the Gospels, and On the Truth of the Christian Religion, an apologetic work in which he attempts to prove the truth of the Christian faith based on reason and the testimony of works outside the Christian tradition. On March 22, 1621, his wife Maria contrived to smuggle Grotius out of prison in a chest used to transport books, and he fled to Paris. Grotius subsequently held various diplomatic and legal positions including the office of Swedish ambassador to France. In March of 1645, he was permitted to visit Rotterdam and Amsterdam on his way from Paris to Stockholm. On August 28 of that same year Grotius died while traveling from Stockholm to Lübeck.

Bibliography

Printed editions of Grotius's works are listed in Jacob ter Meulen and P. J. J. Diermanse's Bibliographie des écrits imprimés de Hugo Grotius (The Hague, 1950). No complete critical edition of Grotius's works exists. For commentary on the state of Grotius scholarship, see Christian Gellinek's Pax optima rerum: Friedensessais zu Grotius und Goethe (New York, 1984), pp. 93–101.

For introductions to Grotius's thought and influence, see Charles S. Edwards's Hugo Grotius: The Miracle of Holland, A Study in Political and Legal Thought (Chicago, 1981), Peter Haggenmacher's Grotius et la doctrine de la guerre juste (Paris, 1983), and Hamilton Vreeland, Jr.'s Hugo Grotius: The Father of the Modern Science of International Law (New York, 1917).

Anne Clarke (1987)