GROTIUS, HUGO (1583-1645), or Huig de Groot, Dutch jurist and statesman,
was born at Delft, of a distinguished Calvinist family. He entered the
University of Leiden when he was 11, graduating with great distinction
at the age of 14. At 15 he served as a member of a Dutch mission to France
and obtained the degree of Doctor of Law at the University of Orleans.
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, l627). 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' 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' 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 religions, 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 which had not yet developed new rules of intercourse appropriate to the emerging society of sovereign nations. There was no prospect of re-establishing 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 citations 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' 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 meta-legal 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' 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' 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' 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 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 which 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 our own 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 mankind 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' 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' 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.
Wolfgang Friedmann
[The Encyclopedia of Philosophy V.III, Paul Edwards, ed., New York: Macmillan, 1967, 393-5.]