Hugo Grotius

Hugo Grotius

1. Life and Works

1.1 Life

Prison escapee, high-stakes politician, shipwreck survivor, Grotius
was a remarkable man who led a remarkable life. Born on 10 April 1583
in Delft, Holland—Easter Sunday, as his biographers invariably
note—his family was moderately prosperous, well-educated and
ambitious. From these nourishing if not particularly distinguished
origins, Grotius soon proved himself exceptional. When he was eight,
he began writing skillful elegies in Latin; by eleven, he was a
student in the Faculty of Letters at the University of Leiden. In
1598, at the tender age of fifteen, he accompanied the leading Dutch
politician of the day, Johan van Oldenbarnevelt, on an embassy to the
royal court of France. There King Henry IV, impressed by his
extraordinary learnedness, hailed him as “the miracle of
Holland”. And three years later, when the United Provinces
decided to reinforce their autonomy from Spain by retaining an
official Latin historiographer to chronicle their history, they chose
Grotius over Dominicus Baudius, a full professor of rhetoric at
Leiden, for the position.

In the small world of Dutch high society, Grotius had clearly been
identified as a young man going places. While in France, he had earned
(or possibly just bought) a law degree from the University of
Orléans. After returning to The Hague, he established a law
practice and within a short time, his clientele included
Oldenbarnevelt, the Dutch East India Company (V.O.C.) and Prince
Maurice of Nassau. Apparently he impressed Maurice, for when the
position of Attorney General of Holland, Zeeland and West Friesland
became available in 1607, the Prince chose him over two other older
and more experienced candidates. Grotius didn’t particularly
enjoy the practice of law—in letters he voiced complaints
familiar to today’s lawyers, bemoaning the tedium of the work
and obstreperous clients—so he closed his firm upon being made
Attorney General. Perhaps capitalizing on his new position and the
healthy salary it paid, he soon married the redoubtable Maria van
Reigersbergen, with whom he would eventually have three daughters and
four sons.

After several years as Attorney General, Grotius was appointed
Pensionary (roughly equivalent to Governor of an American state) of
Rotterdam in 1613. That same year, he was called to put theory into
practice when a dispute arose between the English and the Dutch over
the freedom of the seas. The details are interesting but complicated:
in essence, on the basis of the claim that two Dutch vessels were
trespassing on seas owned by England near Greenland, a small British
fleet seized the contents of the Dutch ships. Grotius led a delegation
to England in protest of the English actions. While history may have
favored Grotius—his view that the seas are open to all would
eventually come to be international law—real politick made
victory impossible for him at the time. The English were more powerful
than the Dutch, and they neither returned the cargo nor conceded the
legal point.

1613 may have carried some excitement but the end of the decade was
one of the true zeniths (or nadirs, depending on one’s
perspective) of Grotius’ life. A dispute between orthodox
Calvinists and reformers over arcane theological matters which no
longer seem important to us quickly assumed enormous political
significance. Grotius, Oldenbarnevelt and other supporters of
religious tolerance were aligned on the side with the reformers or
“Remonstrants”; Maurice, the Calvinist establishment and
other so-called “Contra-Remonstrants” were on the other.
On 29 August 1618, Maurice and his allies staged a coup, overthrowing
the States General (of which Grotius was a member by virtue of his
position as Pensionary of Rotterdam) and imprisoning him along with
Oldenbarnevelt and Rombout Hoogerbeets, the Pensionary of Leiden.
Consolidating his grip on power, Maurice soon moved to eliminate the
Remonstrants and their supporters in government; as part of this
putsch, Oldenbarnevelt was executed and Grotius and Hoogerbeets were
sentenced to life imprisonment. It would be overly dramatic to say
Grotius languished there: he was allowed to correspond with outsiders;
moreover, he had books and writing materials, and indeed he composed
much important work during this time. But the cold and damp cell was
far from pleasant and there was the looming danger that the
authorities would revisit his case and impose an even harsher
punishment. So in March 1621, Grotius and his wife Maria decided
enough was enough. Placing himself in a large trunk that Maria had
shipped to him, Grotius escaped prison by having the trunk carried out
on the pretense that it contained a number of books. He fled to
Antwerp and thence to Paris, where his family eventually joined
him.

Now began a more stable and productive period. The French authorities
welcomed Grotius by awarding him an annual pension which, while not
always paid, at least gave the promise of security. He began
composition of De iure belli ac pacis (On the law of war
and peace
), which was published by a Parisian press in 1625. It
quickly made Grotius famous: for example, in a letter to Grotius,
Vossius says that Descartes told him that he had recently met the
Dutchman (in reply, Grotius wrote that he didn’t remember
meeting Descartes, an indication of their relative stature at the
time). Perhaps encouraged by the reception of his work, Grotius tried
returning to the Netherlands in 1631. Initially, he may have had
reason to be optimistic: after practicing law for a little while in
Amsterdam, he was offered the Governor Generalship of the V.O.C. in
Asia. Soon enough, however, the authorities moved against him, placing
a large price on his head and forcing him in April 1632 to flee his
home country. Grotius would never set foot there again.

This time, he went to Hamburg, Germany. Nearby Sweden (one of the
superpowers of the day) had numerous connections to the city, which
made it quite natural for Swedish authorities to notice the presence
and availability for hire of such a luminary. Moving to take advantage
of the situation, they made him their Ambassador to France in 1634.
Grotius began his diplomatic duties in Paris the following year. It is
hard to gauge his success as ambassador: while he did help to
negotiate a treaty which led to the end of the Thirty Years’
War, he could also be outmaneuvered in the diplomatic game—at
one point, his bumbling forced the Swedish Chancellor Axel Oxenstierna
to come to Paris and sort things out. Still, such stories
notwithstanding, it is true that he lasted ten years in one of the
highest and most demanding diplomatic postings of his day.

During this time, Grotius returned to the theological issues which had
earlier caused him such grief. The project of Christian
unity—harmonizing both the various Protestant factions and the
Protestants with the Catholics—became increasingly important to
him. Both intellectually and practically, it was a task which suited
him and his place in life: intellectually, because Christian unity
raised many conceptual puzzles which challenged his mind; practically,
because as ambassador for one of the great European powers, he could
use his position to press the cause. Of course, the cause was doomed
to failure—certainly, it was well beyond Grotius’
abilities. Yet, it did lead him to write some extremely interesting
and influential works, many of which were collected in his Opera
Omnia Theologica
.

After Queen Christina ascended to the throne in 1644, she
systematically began to undermine her rival Oxenstierna and—as
part of this infighting—recalled Grotius from his
ambassadorship. She didn’t fire him; instead, she instructed him
to come to Stockholm and assume a different position. At first,
Grotius didn’t want to go, but bowing to the force of royal
prerogative (not to mention economic necessity), he set sail for
Stockholm in March 1645. It was a fateful decision: traveling
conditions on the Baltic in late winters can be harsh; his ship
wrecked and Grotius barely escaped with his life. After spending a few
months in Sweden, he decided to return to Germany and so undertook
another voyage. Again, conditions were poor; it took eight long days
to cross the relatively narrow stretch of water. This time, it was too
much: weakened by recent events, Grotius died on 28 August 1645, in
Rostock, Germany. While they are probably apocryphal, his supposed
last words—“By attempting many things, I have accomplished
nothing”—do evoke the span of his life’s work and
his personal assessment of the results.

1.2 Works

Given that he led such an active public life while also raising a
large family, the sheer quantity of Grotius’ works is nothing
short of astonishing. Typical, for him, was the time of his embassy to
France early in his life. The same year as the embassy, he published
Pontifex Romanus, a collection of six essays on recent
political events. While working on this, he produced what are in
essence critical editions of two works: the Phaenomena, an
astronomical work of the third century BCE by Aratus of Soli, and
Martianus Capella’s handbook of the seven liberal arts. He also
began research on a history of the Netherlands, research would which
much later would result in the Annales et Historiae de Rebus
Belgicis
. And he did all this while still in his late teens. Over
the full course of his life, Grotius would write or edit some
five-dozen book-length works and innumerable smaller pieces.

To philosophers and the philosophically-minded, two of these stand
out: De iure praedae commentarius (Commentary on the law
of prize and booty
, henceforth referred to as
DIP”) and De iure belli ac pacis
(“DIB”). The former was almost lost. Placed in a
trunk sometime during or after his life, the sole manuscript copy was
uncovered when some of his descendants sold a collection of his papers
in 1864 (for an account of these events, see Knight 1925: Chap. 5 and
van Ittersum 2006). It was apparently commissioned by the V.O.C.
around 1603. In it, Grotius was to defend the capture of a large
Portuguese merchant ship by a V.O.C. fleet in the area around
modern-day Singapore. The key legal and conceptual question was
whether any private agent (such as the V.O.C.) could legitimately
employ force against another private agent which was impeding its
actions (see Tuck 1993: 170). But it also had an important
propagandistic objective, which was to defame the Portuguese (and
Spanish) while extolling the V.O.C. and Dutch (for more on the general
historical context of the DIP, see van Ittersum 2002). Modern
philosophical readers will find the “Prolegomena” of
Chapter Two especially interesting, since that is where Grotius lays
out his views on the nature and bases of rights. While Grotius chose
not to publish this or most of the manuscript, he did see Chapter
Twelve into press. Given the title Mare Liberum (On the
freedom of the seas
), it was both influential and controversial:
among others, the Englishman John Selden published a critical
reply.

Whatever the merits of the DIP, it is on the DIB
that the bulk of Grotius’ reputation rests. It consists of an
introduction and three books, totaling more than 900 pages in
translation. As with DIP, the introduction or
“Prolegomena” holds the greatest interest for
philosophers, for it is here that Grotius articulates and defends the
philosophical foundations of the DIB. While philosophers are
naturally attracted to the “Prolegomena”, the body of the
DIB is also redolent with themes of philosophical interest.
Book One defines the concept of war, argues for the legitimacy of war,
and identifies who may legitimately wage war. Book Two deals with the
causes of war, the origins of property, the transfer of rights and
more, while Book Three is dedicated primarily to the rightful conduct
of belligerents in war. After the initial publication in 1625, Grotius
ushered several more editions to press during his life, each time
adding more references without substantially changing the arguments.
(A word of explanation about citations to the DIB they
commonly take the form of book, chapter, section and—where
applicable—paragraph; so, “I.1.10.1” means
“Book One, Chapter One, Section Ten, Paragraph One”.)

2. Method

The first reaction of many readers is to the very style of
Grotius’ prose. So before getting to his ideas and arguments, a
few words should be said his method, both in the DIP and the
DIB. There are of course differences between the two works.
However, the connection between them is ably described by
Straumann:

Although De iure belli ac pacis was written under
fundamentally different circumstances from De iure praedae,
its main teachings… can be understood as an elaborated version of
the earlier work. (2015: 212)

So we can take the crucial aspects of the two works, which includes
their methods, to be at minimum consistent and at maximum merely
different expressions of the same basic underlying set of
convictions.

Now, as we think about the method employed in the two works, we find
several distinct issues. First and most obviously, there is the
question of what we should make of the voluminous references to
ancient, medieval and early modern works which can be found in the
margins of both books. Some have taken a rather dim view of them; in a
scornful passage of Émile, Rousseau wrote:

True political theory [le droit politique] is yet to appear,
and it is to be presumed that it never will. Grotius, the master of
all the savants in this subject, is but a child; and, what is worse, a
dishonest child [enfant de mauvaise foi]. When I hear Grotius
praised to the skies and Hobbes covered with execration I see how far
sensible men read or understand these two authors. The truth is that
their principles are exactly the same: they only differ in their
expression. They also differ in their method. Hobbes relies on
sophisms, and Grotius on the poets; all the rest is the same.
(Rousseau 1762: Bk 4 [1915: vol. II, 147])

It would be absurd to deny that Grotius does rely “on the
poets”—after all, he said in the “Prolegomena”
to the DIB that “the testimony of philosophers,
historians, poets, finally also of orators” will be used to
“prove the existence of this law of nature” (§40).
Arguments from authority carried great weight for him: the more
illuminati one could cite, the better for one’s
argument. Philosophers today may not be impressed by such arguments,
though they can be instructive to historians of philosophy. By
studying Grotius’ use of texts, one can learn how they were
interpreted in the early modern period—and this can unlock one
of the many barriers to understanding that time.

But is there more to his citations of these texts than just a perhaps
overly respectful attitude toward authority? Most scholars think there
is, though they are divided on what it might be. One possibility is
that they reflect Grotius’ commitment to the idea of
philosophia perennis. Like Leibniz a few decades later,
Grotius thought there were elements of truth in virtually all great
thinkers. He writes,

I quote them as witnesses whose conspiring testimony, proceeding from
innumerable different times and places, must be referred to some
universal cause. (DIB Prol. §40)

His job as heir to ideas of the great dead is to combine or synthesize
them into a single unified theory. And doing that requires him to draw
on them as frequently as possible.

Another suggestion sees Grotius as deeply concerned to refute
scepticism about international law. Grotius was upset when the
powerful French Cardinal Richelieu told him, “the weakest are
always wrong in matters of state”. How is it that he can
convince doubters such as Richelieu of the existence and force of a
set of norms governing the conduct of governments both domestically
and internationally? The argument will never be easily won but the
burden may be lightened by sharing the load. If Grotius can show that
so many people throughout history have accepted what the sceptic
denies, then perhaps the force of numbers may change the
sceptic’s mind.

Quite apart from the questions posed by the marginalia, an entirely
different aspect of Grotius’ method concerns his refusal to
divide ethics, politics and law into separate subjects. These days,
compartmentalization is the norm; ordinarily, we study one of these
subjects while paying scant attention to the others. Now, it is true
that Grotius does often identify ways in which legal norms differ from
moral or political ones (see, e.g., the discussion of laws at the
beginning of DIB I.1). At the same time, he does not think
that law, politics and ethics are entirely distinct domains. If one
reads Grotius with the expectation that he will keep them apart, one
will likely be befuddled by the way he ignores distinctions which are
important to us. It may help to know that he does this because he is
interested in picking out the fundamental principles which lie at the
basis of all normativity, not just a portion thereof. He
cannot talk just about ethics, say, because his views on ethics are
informed by his views on politics and the law. A fundamental tenet of
his thought is that moral, political and legal norms are all based on
laws derived from or supplied by nature.

The issues here are complex and much discussed. For more, see Dufour
(1980), Tanaka (1993), Vermeulen (1983) and Whewell (1853).

3. Natural Law

Natural law is multiply ambiguous. It can be descriptive, in that it
is sometimes supposed to describe a certain set of facts which obtain
because of some natural features. At the same time, it can also be
prescriptive, in that it is sometimes supposed to prescribe certain
forms of behavior as acceptable and proscribe others as unacceptable.
On another level, its scope or range of application is unfixed. Some
natural law theories pertain to political entities (typically states
and relations among states); others, to civil laws; yet others, to
moral agents. On still another level, the ambiguities can be seen as
stemming from the very notions of “natural” and
“law”. “Natural” can refer to human nature, or
to the nature of the universe in general, or both. One’s sense
of the validity and force of a natural law theory will vary enormously
depending on which reference is employed. “Law” was
similarly contested. One extreme interpreted it literally, so that a
natural law is a rule implemented by some agent (typically God) which
compels obedience on pain of some penalty. The other extreme took
“law” completely metaphorically, picking out some standard
or norm perceivable in natural phenomena which governs behavior
through entirely impersonal means.

Such variation should not be surprising, for the natural law tradition
was long and robust. Though there were ties to the ancient world, it
began in earnest with Aquinas, since he was the first to formulate a
group of ideas systematic enough to be called a theory. The tradition
continued through the middle ages and into the early modern era before
(allegedly) meeting its demise in Kant. Given that natural law was
the dominant paradigm in ethics, politics and law for
hundreds of years—much longer than the period from Kant to
us—it is entirely predictable that theorists would have pushed
that paradigm in so many directions. It may be that there is some
essence shared by all natural law theories; for example, one recent
commentator has suggested that the

stable core in [the natural law tradition] is the idea that morals is
primarily a matter of norms or prescriptions and only derivatively
about virtues and values. (Haakonssen 1992: 884)

But those who study natural law in the period of its flourishing will
be impressed by the almost unlimited possibilities of
interpretation.

Though this is not an article on the natural law, these points are
necessary preliminaries for considering Grotius’ natural law
views. If Grotius is at all known to philosophers today, it is for
being “the father of natural law” (as put by, e.g.,
Vreeland 1917). At this juncture, we need not assess the validity of
this claim (for more on Grotius’ originality, see
Section 6
below). Instead, we ought to understand Grotius’ actual views
on the laws of nature. To understand his views, four issues need to be
examined: first, the source of the laws; second, their nature or
content; third, their force or obligatory status; finally, their
scope.

Why are there natural laws? Do they exist in virtue of the nature of
things or for some other reason? These are the questions lurking
behind the issue of source. Grotius changed his mind on how they
should be answered. In the DIP he declares that

What God has shown to be His Will, that is law. This axiom points
directly to the cause of law, and is rightly laid down as the primary
principle. (Chap. II)

Here Grotius announces a thesis about the relation between normativity
and the divine being which is commonly known as
“voluntarist”: by an act of volition, God determines the
full and exact content of all normative categories—justice,
goodness and so forth. Voluntarism was a well-established tradition of
natural law theories; the DIP belongs firmly in that
tradition. In later works, however, Grotius departs from it. For
example, in the De summa potestatum, he declares that
normativity of any kind

arises from the nature of the action itself, so that it is right
per se to worship God and it is right per se not to
lie. (Opera Omnia Theologica vol. III, p. 187)

A much more famous expression of non-voluntarism appears in the
“Prolegomena” to the DIB. In the first few
sections of the “Prolegomena”, Grotius lays the groundwork
for his natural law theory. Then, in section eleven, he writes
that

What we have been saying would have a degree of validity even if we
should concede [etiamsi daremus] that which cannot be
conceded without the utmost wickedness, that there is no God, or that
the affairs of men are of no concern to him.

Instead of emerging from or being otherwise dependent on God, the
fundamental principles of ethics, politics and law obtain in virtue of
nature. As he says, “the mother of right—that is, of
natural law—is human nature” (Prol. §16). Somewhat
later, he clarifies why it is that human nature produces the natural
law:

The law of nature is a dictate of right reason, which points out that
an act, according as it is or is not in conformity with rational
nature, has in it a quality of moral baseness or moral necessity; and
that, in consequence, such an act is either forbidden or enjoined.
(I.1.10.1)

If an action agrees with the rational and social aspects of human
nature, it is permissible; if it doesn’t, it is impermissible
(cf. I.1.12.1). That is to say, the source of the natural law is the
(in)compatibility of actions with our essences as rational and social
beings. For discussion of the etiamsi daremus passage, see
St. Leger (1962) and Todescan (2003).

Suppose we have established where the laws come from. This will reveal
nothing about the second of our four issues: viz., the content of the
laws or what they actually say. Grotius’ views on how we should
learn about this were quite consistent: throughout his corpus, he
continued to maintain that (as he put it in the DIP),

The Will of God is revealed, not only through oracles and portents,
but above all in the very design of the Creator; for it is from this
last source that the law of nature is derived. (Chap. II)

As he put it in the DIB, the law of nature “proceeds
from the essential traits implanted in man” (Prol. §12).
Where some other natural law theories solved the problem of knowledge
through recourse to the supernatural, Grotius did not. For him, a
study of nature itself—and more specifically, a study of human
nature—can suffice to teach us the essentials of ethics,
politics and law.

And what, exactly, does such a study reveal about those fundamental
normative principles? The reasoning in both the DIP and
DIB may be reconstructed as follows. Human nature is
constituted by two essential properties: the desire for
self-preservation and the need for society (see DIP, Chap. 2,
and DIB, Prol. §§6–7). These two properties
temper and inform each other: the desire for self-preservation is
limited by the social impulse, so that humans do not naturally seek to
maintain and enhance their being at all costs; conversely, the need
for the company of other humans is limited by the self-preservation
drive, for individuals must naturally strive to secure the means for
their well-being. Moreover, the self-preservation drive and the
sociability impulse are both emotive and cognitive; they are both
non-rational and rational, having the force of unreflective instinct
as well as well-thought-out plans. Because we are essentially both
social and self-preserving beings, it follows that two things are
imperative for our successful existence. We ought to abstain from what
belongs to other persons, and we ought to engage in the reasonable
pursuit of what genuinely serves our interest. Accordingly, Grotius
makes these the first two elements of natural law in the DIB
(see Prol. §§8, 10); they form the core of the first four
“laws” in the DIP (see Chap. II). While these
principles enjoy lexical priority in the hierarchy of natural norms,
they do not exhaust the list. A study of nature also teaches us that
“Evil deeds must be corrected” and “Good deeds must
be recompensed” (Laws V–VI of the DIP). In fact,
Grotius derives a list of some 22 fundamental natural tenets in the
DIP and a similarly large group (though not numbered in the
same way) in the DIB. Any explanation of Grotius’
natural law theory should begin by citing these first-order tenets or
principles, for they are what constitute its substance. Recent
scholarship has sought to shed light on the foregoing issues by
examining how Grotius may have been inspired by Stoicism, both ancient
and early modern. See in particular Brooke (2012: Chapter 2) and
Straumann (2015).

Returning to conceptual matters, we should ask why the laws of nature
are operative on us. Why do they enjoin or prohibit us from performing
certain specific actions? Here we come to our third issue, concerning
the laws’ force or obligatory status. Traditionally, natural law
theorists tended to invoke God for their solution to this very deep
mystery. Aquinas, for example, argued that obligation is the result of
an action of will by a superior on an inferior (see, e.g., Summa
Theologica
II.ii.q104). We are obliged to follow civil laws
because our political superiors have forced us to do so through
actions of their more powerful wills. And we are obliged to follow
natural laws because God has forced us to do so through his infinitely
more powerful will. Grotius was tempted by this view; he writes in
DIB that morally necessary acts must be “understood as
necessarily commanded or forbidden by God” (I.1.10.2).

As any parent knows, however, “because I said so” is not
the most compelling reason for action. That is true even when the
person speaking is God. Hence thinkers have long sought to articulate
other grounds for obligation. In Grotius’ time, for example,
Suarez wrote,

to break the natural law without sinning involves an
inconsistency… and therefore the existence of an obligation
which is imposed by the natural law but which is not a matter of
conscience also involves an inconsistency. (De legibus,
II.IX.6)

Here we find a very different account of the basis of obligation: we
are obliged to perform or avoid certain actions which are incompatible
with our consciences, because we will be guilty of inconsistency if we
don’t. To put it in slightly different terms, we are obliged to
perform or avoid certain actions which are compatible or incompatible
with our natures as rational beings, because we will be less than
human if we don’t. Grotius adopts this idea for himself,
modifying it in keeping with his rich conception of human nature: for
him, natural law obliges us to perform actions which conduce to our
rationality, sociability and need for self-preservation. This thought
underlies several of his specific laws of nature—such as, for
instance, the law that evil deeds must be corrected. Grotius places
this obligation under the heading of compensatory justice
(DIP, Chap. Two). The “task of compensatory
justice” is “restitution”: using the example of
theft, Grotius explains that “such justice requires that the
thing taken shall be returned” (ibid.). Evil deeds have
disturbed the moral and legal equilibrium of society; they have
unjustly benefited some while unjustly harming others. Since it is
imperative to maintain healthy social relations, it is imperative that
evil deeds be punished.

The problem of explaining why we should obey the laws of
nature—or indeed, why we should obey any set of norms—is
one of the most enduring in philosophy; it would be rash to suppose
that a solution can be found in Grotius. One inadequacy of his account
is inspired by Richelieu: while Grotius tries to separate and equalize
our rational, social and self-interested motives for action, one may
question whether they are in fact distinct and equal. If it can be
shown that one is more fundamental than the others—that, say,
self-interest is our first and most basic reason for action—then
our reason for obeying the laws of nature and being moral will be very
different from what Grotius argued. (For additional discussion, see
Korsgaard 1996: 7, 21–22 and 28–30.)

Moving on, we come to the last of our four issues—i.e., scope.
In Grotius’ day, this issue was made urgent by European
encounters with indigenous peoples in the Americas and elsewhere (for
discussion, see Tierney 1997: Chapter XI). Some theorists tried to
place epistemic or doxastic restrictions on the scope of the laws,
arguing that they enjoined and protected only those who held certain
beliefs. Since the beliefs which determined the applicability of the
laws were usually religious in nature, it was commonly argued that
natural laws were pertinent only to Christians and did not cover
non-Christians. Given that natural laws form the basis for morality,
then since they do not cover non-Christians, it follows that
Christians were under no obligations to treat non-Christians morally.
Like many others, Grotius strongly disagreed with such arguments. For
him, natural laws apply to all rational and social beings as such. It
doesn’t matter what they think or believe; if they are rational
and social, they are bound by the law of nature (see, e.g.,
DIB II.20.44).

4. Political Philosophy

As the previous section stressed, Grotius’ natural law theory
was about much more than politics; it offered an account of
normativity of all kinds. At the same time as he was concerned to
explicate normativity generally speaking, the evidence unambiguously
suggests that he was especially interested in political issues. After
all, he did lead a very political life and his two greatest works are
eminently political. In this section, a few of his political ideas are
discussed.

Let’s start with one closely connected to the problem of
obligation. Just now, it was said that the ground of obligation lay in
our natures as rational, social, self-preserving beings. This is
correct but it needs amplification. Grotius did not conceive of our
essences as static; instead, they are dynamic, expressive of our
abilities and activities. This is emphatically reflected in his
conception of rights (ius, or iura in the plural).
He distinguishes between several meanings of iura, the most
important of which conceives of a ius as “a moral
quality of a person, making it possible to have or to do something
correctly” (DIB I.1.4). For Grotius, a ius or
right is a capacity or power possessed by the agent; it is a
“faculty” or an “aptitude” of the person
(ibid.). To have a ius is to have the ability to engage in
certain specified actions without moral or legal sanction. So, for
example, when he endows humans with the right to self-preservation, he
grants us the power to pursue our own interests without needing the
permission or assistance of the state or any other authority. Because
rights are centered on the individual subject, one will often read
that Grotius propounded a theory of “subjective right”
(see, e.g., Kingsbury & Roberts 1990: 31 and references
there).

The import of Grotius’ theory of rights can be clarified
contrasting it with the dominant medieval conception of iura.
This conception stems primarily from Aquinas, who held that “the
word ius was first of all used to denote the just thing
itself” (Summa Theologica II.ii.q57.art1). In its
original usage, ius was applied to things—actions,
entities, situations—and not persons. As Aquinas and his
followers conceived of it, things earn the appellation
“right” when they align fully with the natural law. For
two reasons, then, the medieval conception of rights can be thought of
as “objective”: first, because the things which are right
are objects (and not subjects); second, because things become
worthy of the label “right” when they satisfy an
objective, agent-independent set of necessity and sufficient
conditions, viz., those conditions required for conformity to the
natural law. Now, it is true that this medieval view had begun to be
displaced by Grotius’ time; for example, Suarez says that a
“strict acceptation of ius” bestows it

upon a certain moral power which every man has, either over his own
property or with respect to that which is due to him. (De
legibus
I.2.5)

However, Grotius is usually given the credit for shifting the paradigm
fundamentally (see, e.g., Haakonssen 1985: 240 and Schneewind 1998:
78; for an opposing view, see Irwin 2008: 98). While it took time for
his paradigm to become hegemonic, it did eventually prevail. When we
say that so-and-so has the right to such-and-such, we usually
mean that he has the means or power to do
such-and-such: for example, the assertion that someone has the right
to freedom of thought means that he has the ability to think as he
pleases and no one or no thing can force him to do otherwise. This was
Grotius’ view; though subsequently mediated by many others, his
contribution was essential.

In addition to its intrinsic interest, Grotius’ innovative
conception of rights had numerous important consequences. Two examples
may serve as illustrations. First, whereas medieval theorists tended
to speak of “the right”, Grotius and his successors
stressed the powers and entitlements of the person who has rights. By
associating rights with the powers of a person, moderns were able to
distinguish sharply between rights on the one hand versus duties on
the other (cf. Finnis 1980: 209). Second, because Grotius made rights
into powers or faculties which humans possessed, he played a
crucial part in the commoditization of rights. Once rights became
possessions, they can be traded away just like all other possessions.
The means of transfer might not be identical to other exchanges of
goods but the essential idea of giving away something in one’s
possession for something which isn’t is there. As commentators
have argued, the commoditization of rights was one of the most
important political developments of the seventeenth century (for more,
see especially Macpherson 1962: 3f).

Grotius exploited the latter idea in some of the more notorious parts
of his corpus. Take the following:

At this point first of all the opinion of those must be rejected who
hold that everywhere and without exception sovereignty resides in the
people, so that it is permissible for the people to restrain and
punish kings whenever they make a bad use of their power… We
refute it by means of the following arguments.

To every man it is permitted to enslave himself to any one he pleases
for private ownership, as is evident both from the Hebraic and from
the Roman Law. Why, then, would it there not be as lawful for a People
who are at their own disposal to deliver up themselves to some one
person, or to several persons, and transfer the right of governing
them upon him or them, retaining no vestige of that right for
themselves? (DIB I.3.8.1).

Grotius extends the case elsewhere, insisting that a people may give
their rights to a ruler, receiving a peaceful and stable society in
return (DIB I.4.2.1). But what are the limits placed on the
ruler who has taken possession of these rights? To some readers,
Grotius’ willingness to allow agents to transfer their rights
leaves him open to charges of befriending despots. Provided that the
initial transfer of rights was legitimate, then once the ruler is in
possession of rights, those living under him or her have no right to
complain that certain forms of behavior are unjust, for they have no
relevant rights at all. As Rousseau put it, Grotius “spares no
pains to rob the people of all their rights and invest kings with
them” (Social Contract, Book II, Chapter Two). To be
sure, other readers denied that Grotius’ theory allowed agents a
total transfer of their rights; in particular, they contended that
agents will always retain their fundamental rights, such as the right
of self-defense (see Locke as interpreted by Tuck 1979: 172–3).
Nevertheless, whatever the theory itself actually implies, it remains
that Grotius himself seems to have believed that agents may surrender
all liberties in certain circumstances (for more, see DIB
I.3.9–16).

On a more positive note, Grotius’ recognition of the
transferability of rights led him to a novel solution for one of the
great problems of political philosophy. What is the source of the
state’s right or power? Two traditional answers were (1)
God—he set up the state and it derives its authority from his
sanction—and (2) might—because the state is powerful, it
has the authority to govern, for might makes right. While Grotius
flirts with both of these, he finally settled for something else. He
writes in the DIP,

just as every right [ius] of the magistrate comes to him from
the state, so has the same right come to the state from private
individuals; and similarly, the power of the state is the result of
collective agreement. (Chap. Eight)

Through innumerable, separate, sequential decisions occurring over a
protracted period of time, individuals gradually agreed to form
institutions for governing society by imbuing them with some of power
which they naturally possess. Eventually, these institutions gelled
into a single coherent entity which is the state. The state’s
power, then, is the product neither of God nor of sheer force but
instead of the willful transference of individuals’ powers or
rights to it. It may be a mistake to interpret this idea as a nascent
contractualism (see Tuck 1993: 178–9) but likewise, it would be
a mistake to deny the appeal it would have to later contractualists
such as Hobbes.

All of this underscores Grotius’ real but uneven contributions
to the doctrines of political liberalism which were being formulated
in his time. To the emerging theory of liberalism, he gave the idea
that individuals—both individual persons and individual groups
of persons—are bearers of rights. Also, he advanced the
compelling second-order account of the nature of those rights
described above. And he argued strongly in support of the attribution
of several specific first-order rights: for example, besides those
which have already been mentioned (such as self-defense), he
vigorously defended rights to property. However, as important as these
and other contributions to liberalism are, they must be balanced
against some of Grotius’ other views. For instance, while it is
true that he thought individuals had rights, it is also true that he
thought there were a number of circumstances in which those rights
might be surrendered or even just overridden. So the rights that we
are supposed to have in Grotius’ theory are not completely
assured. More sinister are his views on slavery, which is or at least
can be an entirely just institution. In the DIP he writes
that Aristotle is not “mistaken when he says that certain
persons are by nature slaves” (Chap. Six, Quest. V, Art. One).
While Grotius may have repudiated this thought in the DIB
(see III.7.1—but see also I.3.8.4), a simple argument continued
to convince him that slavery is compatible with a just society. If
individuals may sell their labor, Grotius reasons, then they should
also be able to sell their liberty. If they sell all of their liberty,
then they are of course slaves (I.3.8.1). A final weight to be placed
on the balance of Grotius’ liberalism is his view on the status
of rulers or sovereigns. Because sovereignty is “that
power… whose actions are not subject to the legal control of
another” (DIB I.3.7.1), it follows as a necessary truth
that those who hold sovereignty are necessarily superior to all
others. Because they are necessarily superior to the rest, Grotius
considers rebarbative the suggestion that sovereigns are answerable to
their subjects. They may wish to take the needs of her or his subjects
into account (III.15) but this is only “praiseworthy” and
not imperative. In sum, then, Grotius’ contributions to
political liberalism are comparable to Hobbes, Spinoza, Locke and
other seventeenth century luminaries. They are genuine and significant
while mixed with decidedly non-liberal themes.

5. Just War Doctrine

As the title of his magnum opus implies, the normative status
of war was of paramount concern to Grotius. The common distinction
between ius ad bellum and ius in bello—the
distinction between the rightful causes of war versus the rightful
conduct of war—is useful for understanding his views. Regarding
ius ad bellum, Grotius devotes DIP Chap. Three and
DIB I.2 to the question of whether it is ever lawful to wage
war. He argues that war is not only compatible with but sometimes
compelled by all three major kinds of law—the law of nature, the
law of nations or international law, and divine law. In support of his
answer, he adduces a number of conceptual, historical and theological
arguments. It would be tendentious to recount all of them, so take
just one influential example of the first sort:

He who wills the attainment of a given end, wills also the things that
are necessary to that end. God wills that we should protect ourselves,
retain our hold on the necessities of life, obtain that which is our
due, punish transgressors, and at the same time defend the
state… But these divine objectives sometimes constitute causes
for undertaking and carrying on war… Thus it is God’s
Will that certain wars should be waged… Yet no one will deny
that whatsoever God will, is just. Therefore, some wars are just.
(DIP Chap. Three)

Far from believing that war is a condition outside the realm of
morality and law, Grotius took it to be an instrument of right (cf.
Dumbauld 1969: 73). As he wrote, “where judicial settlement
fails, war begins” (DIB II.1.2.1). Wars may be justly
undertaken in response either to “wrongs not yet committed, or
to wrongs already done” (ibid.). The list of wrongs which
justify war is long, including the inflicting of punishment (ibid.),
self-defense (II.1.3), the defense of chastity (II.1.7), etc. At the
same time as he countenances war, Grotius does set limits, some of
them controversial. For example, he argues that one doesn’t have
the right to defend oneself against an assailant who is “useful
to many” (II.1.9.1). This principle applies to both individuals
and states. So it follows that both individuals and states may be
obliged to acquiesce when attacked by someone important to
society—whether the society of a single nation or the society of
nations. Overall, it has been argued, what sets Grotius’
analysis of ius ad bellum apart from his predecessors is
“in his detailed and systematic elaboration of the ‘just
causes’ of war’” (Draper 1990: 194).

Even supposing that a war has been undertaken rightly, it must also be
fought rightly for it to be just. And here we come to ius in
bello
, a topic treated in DIB III. Grotius begins by
setting three rules governing the conduct of war (DIB
III.1.2–4), the first and most basic of which is that “In
war things which are necessary to attain the end in view are
permissible” (III.1.2). This obviously places wide limits on
permissible conduct, though it isn’t as chilling as a first
reading might suggest, for the necessity requirement can be hard to
meet. After advancing these rules, Grotius considers the
permissibility of a large number of actions. The variety and amount of
detail in this discussion is fascinating. Typical is his analysis of
ruses, deceit and falsehood. Not only does he distinguish between
those three ways of conveying false impressions but also he
distinguishes variations within each of them (see III.1.6–20).
For example, if deceit is a genus, then deceit in a negative action is
one species (III.1.7) and deceit in a positive action is another
(III.1.8). And deceit in a positive action can in turn be divided into
two sub-species (ibid.). The practical aims of DIB come
through plainly here and throughout Book III, where the priority seems
to be clarifying what exactly is and is not permissible in war by
considering a large number of actions which could belligerents could
undertake and determining their moral and legal standing. In general,
Grotius held that war is justifiable when, and only when, it serves
right. Since the conditions for service to right are numerous and
non-obvious, he must expend considerable effort identifying and
explicating them (for more, see Draper 1990: 191–207).

6. Originality and Influence

Coming at last to a broader assessment of Grotius’ contributions
to the history of ideas, we should start by distinguishing the
question of his originality from that of his influence. For our
purposes, it will suffice to define originality as involving the
formation of novel and important new concepts and/or methods while
taking influence to consist in having major effects on others. Let us
handle originality first before coming to the easier question of
Grotius’ influence.

Given that his work ranged across so many different
fields—ethics, political theory, politics, religion—it is
impossible to make a blanket statement that Grotius was or was not an
original thinker. Instead, the only responsible approach is to deal
with his alleged contributions on a case-by-case basis. Because it
would be tedious to go through all the cases here, let us just take
the two which are likely to be of greatest interest to philosophers:
ethics and political theory.

There is scholarly dispute about the originality of Grotius’
ethics. Irwin (2008) has recently argued that because he merely
extracts the major elements of his theory of morality from other
authors, especially Aquinas and Suarez, “Grotius is no
pioneer” in the history of ethics (98). By contrast, Schneewind
(1993) thinks that Grotius deserves credit for introducing agonism
into ethics—the notion that

conflict is ineradicable, and could not be removed, even in principle,
by the completest possible metaphysical knowledge of how the world is
constituted. (1993: 58).

Writing decades before Irwin and Schneewind, the Italian scholar A.P.
d’Entrèves argues that

It is not in its content that Grotius’ theory of natural law
breaks away from Scholasticism. It is in its method.
(d’Entrèves 1951 [1970: 54])

According to d’Entrèves, Grotius attempted to

construct a system of laws which would carry conviction in an age in
which theological controversy was gradually losing the power to do so
… His successors completed the task. The natural law which they
elaborated was entirely “secular”. (1951 [1970: 55])

Others who have weighed in on the subject of the originality of
Grotius’ ethics include Kilcullen (1995), Darwall (2012), and
Miller (2020). A clear and balanced assessment is given by Tierney
(1997: Chapter XIII).

Turning to political theory,
Sections 4–5
above identified various concrete contributions of Grotius’ to
politics. For many scholars, however, Grotius is important not so much
for his new ideas as for his new way of thinking about political
problems. So, Kingsbury and Roberts say, “the greatest direct
contribution of” the DIB is

the systematic reassembling of practice and authorities on the
traditional but fundamental subject of the jus belli,
organized for the first time around a body of principles rooted in the
law of nature. (1990: 3–4)

There is a different gauge of Grotius’ originality in the domain
of politics. Through his writings, he gave rise to a theory of
statehood and the relations among states which has come to be known
as, simply, “Grotian” (the labels are used by Wight
(1991), among others). This theory is an account of the origins and
identity conditions of states. It conceives of states as existing not
in a pre- or anti-social condition but rather in an international
society governed by a system of norms. Those norms hold apart from a
positive action by a legislature or legislator. At the same time as it
insists on the existence and relevance of these norms (which are, of
course, the laws of nature), it is also cognizant of the force of real
politick. Individual states will engage in the pursuit of their own
perceived interests, regardless of whether such pursuits place them in
conflict with the natural law. By doing all of this, the Grotian
school is supposed to negotiate a middle way between bare-knuckled
“Machiavellianism” and excessively idealistic
“Kantianism” (for more, see Wight together with the
criticisms in Bull 1976). Depending on the fortunes of these schools
at any particular moment in history, Grotius’ influence on
international relations will be waxing or waning.

That mention of the influence brings us to the second broad topic of
this concluding section. Scholars may argue about whether and how
Grotius was original but no one can doubt his influence. For example,
the Swedish King Gustav Adolph is supposed to have kept a copy of the
DIB under his pillow, next to the Bible. And King James I
reacted strongly (and negatively) to Grotius’ presentations
during a diplomatic mission to England.

So Grotius’ influence was felt on some of the major actors of
his day. Naturally, though, his main impact was on other scholars.
Bayle called him “one of the greatest men in Europe” (1720
[1740: 2.614]). Leibniz hailed “the incomparable Hugo
Grotius” (see Leibniz 1710 [1985], 77). Thomas Reid spoke of
“the immortal Hugo Grotius” (see Reid 1788 [1815],
331), Hutcheson drew on him extensively, and Hume approvingly
cited an argument of his about the origins of property in the third
appendix of his second Enquiry (see Hume 1748 [1975], 307).
To be sure, not all were so impressed. Rousseau’s opinion has
already been cited; the natural law theorist Samuel Pufendorf was also
sceptical. And Voltaire found Grotius to be simply boring. Still,
whether for good or for ill, Grotius was at the center of letters for
an enviably long time. For a brief synopsis of Grotius’
influence, focusing on the DIB , see Tuck (2005:
ix–xii).

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