"fully convinced…that there is a common law among nations, which is valid alike for war and in war, I have had many and weighty reasons for undertaking to write upon this subject. Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous nations should be ashamed of."
Grotius in Wikipedia, Internet Encyclopedia of Philosophy, Sanford Encyclopedia of Philosophy
Much of Grotius' theory were used in the Peace of Westphalia that ended the Thirty Years' War in 1648. It is considered the first modern international peace treaty. What was the Thirty Years' War?
Natural Law Theory
Source of Natural Laws
Why are there natural laws? Do they exist in virtue of the nature of things or for some other reason? “What we have been saying would have a degree of validity even if we should concede 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.”
“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.”
If an action agrees with the rational and social aspects of human nature, it is permissible; if it does not, it is impermissible. That is to say, the source of the natural law is the compatibility of actions with our essences as rational and social beings. Human nature for Grotius was both rational and emotive. Both reason and desire drew people together in society.
Human nature is constituted by two essential properties: the desire for self-preservation and the need for society. 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.
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, 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.”
The law of nature “proceeds from the essential traits implanted in man.” 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.
Grotius' applied his theory of natural law to both domestic and international laws.
The Force or Obigatory Status of Natural Law
Traditionally, natural law theorists tended to invoke God for their solution to this very deep mystery. For example, Aquinas argued that obligation is the result of an action of will by a superior on an inferior. 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.
But “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, Francisco Suárez (1548 - 1617) 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.” 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. 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 modifies this idea in keeping with his rich conception of human nature: natural law obliges us to perform actions which conform 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. 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.” 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.
The Scope of Natural Laws
In Grotius' day, this issue was made urgent by European encounters with indigenous peoples in the Americas and elsewhere. Some theorists argued 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. It followed that Christians were under no obligations to treat non-Christians morally.
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.
International Trade - Mare Liberum (The Free Sea) 1609
Around 1604, the Dutch East India Company asked Grotius for a brief explanation why they should be able to trade with territories claimed by the Portuguese. In Mare Liberum, Grotius made the case that everyone had the right to use an ocean, irrespective of whom explored it. At the heart of his account resides the right of a state to trade with another, and with this, a claim for the legitimate use of violence to defend this right. It is essential to note that Mare Liberum is set within the context of the Dutch wars of independence and Dutch attempts at commercial expansion against Portugal. Here, Grotius attempts to prove false Portuguese juridical claims over the sea. At the time, Portuguese claims rested on two legal grounds: Papal decree and a treaty with Spain. Grotius initiates his work by setting out a fundamental rule of the law of nations. He declares that “it is lawful for any nation to go to any other and to trade with it.”
To some extent, Grotius’s justification for this claim builds upon the natural law theory of his predecessor, Francisco de Vitoria (1485 - 1548). Grotius cites Vitoria and an Old Testament source of authority as basis for the right to travel across the earth and the right to just war when this is denied. However, Grotius’ position on free trade differs from that of Vitoria. Grotius relies on the notion of self-preservation, in which the right of property and the right to defend it by violence is attached. Moreover, Grotius moves towards what he will depict in his theory in The Law of War and Peace. First, the argument that the freedom of the seas derives not only from nature but also from custom, and therefore from consent and, second, that the right to trade or navigation is legitimate not by virtue of it being a norm of objective justice, but because it was a moral faculty over a thing.
In Mare Liberum, Grotius also in a sense frees nature from its dependence on Divinity. Although the idea of God runs throughout Grotius’ work, God does not play a crucial role. Indeed, the concept of God is reduced merely to the figure of "Creator.” God, for Grotius, is essentially one who has inscribed his principles in nature and has completely left it to its own inertia and foundational rules. Grotius says that God intervenes in human affairs indirectly through two judges who he has rooted on earth, conscience and public opinion.
Just War Theory - On the Law of War and Peace (1625) online text
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. 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. Here is one example:
Far from believing that war is a condition outside the realm of morality and law, Grotius took war to be an instrument of right. As he wrote, “where judicial settlement fails, war begins.” Wars may be justly undertaken in response either to “wrongs not yet committed (preventive warfare), or to wrongs already done.” The list of wrongs which justify war is long, including the inflicting of punishment, self-defense, the defense of chastity, 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.” 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, 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. .
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. Grotius begins by setting three rules governing the conduct of war, the first and most basic of which is that “In war, things which are necessary to attain the end in view are permissible.” 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. For example, if deceit is a genus, then deceit in a negative action is one species and deceit in a positive action is another. And deceit in a positive action can in turn be divided into two sub-species. The practical aims 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.
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