Liberty Matters

The Moderation of Grotius

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Fernando Tesón’s fine essay on Grotius is provocative on several points.  My response explores his criticisms of the great jurist’s effort to propound a philosophy of international law.  I will seek to question his verdict on Grotius through recourse to another jurist-turned-philosopher, Charles de Montesquieu.  Grotius seems less confused, his philosophy of international right less perplexing and contradictory, if we read his On The Rights of War and Peace (1625) in the spirit of a jurist who seeks not abstract philosophical clarity, but an attractive argument likely to reduce the incidence of conflict – and ameliorate those wars that do occur – by bringing principles of law, thus restraint, into this prevalent mode of human affairs.  Grotius’s complex mode of jurisprudence and philosophy deeply influenced Montesquieu’s efforts, a century later in On the Spirit of Laws (1748), to propound a philosophy of international right that declared principles of right to govern war, to promote peace and commerce, and thus to support the conditions for individual and political liberty.  These jurists in turn deeply influenced the American founders in their effort, during the 1780s and 1790s, to construct a constitutional order and distinctive American grand strategy that would permit war only as part of a larger philosophy of peace, international order, protection of individual rights, and commerce.  These are extraordinary achievements in human civilization, and it was this more complex or seeming paradoxical mode of philosophy that helped statesmen to promote liberty and civility.  
We should praise the lawyers – Hugo De Groot (Grotius) and Montesquieu, not to mention Professor Tesón – for their contributions to reorienting politics away from glory and conquest toward peaceful pursuits of individual rights, individual and communal happiness, and peaceful prosperity.  We tend to take this for granted in the 21st-century world, since many of us hardly remember a time without a global order of liberal commerce and great-power peace.  Moreover, my fellow academics tend to favor the more radical voices in philosophy who announce bright-line doctrines and novel systems, overlooking more moderate intellects who propose complex and balanced philosophies that straddle schools and offer fewer doctrines.  If one extends the Enlightenment to include Grotius, then he and certainly Montesquieu exemplify the moderate Enlightenment – keen to consider the claims of modern philosophers for propounding radically new understandings of reality, truth, and right, but just as keen to temper those claims through awareness of the insights of classical and medieval thought that could not be discarded without impairing our understanding of human nature and political reality. 
Tesón gives credit to Grotius’s effort to restrict the definition of justifiable war, as being “quite visionary” and as prefiguring “the international law developments of the late 20th century,” but insists nonetheless that these achievements rest on an “inaccurate” view of the law of nations.  Indeed, the jurist’s philosophical method is “messy” and “unsatisfying,” given its seemingly contradictory statements on the degree to which natural law governs the law of nations.  At other moments, however, Tesón appreciates Grotius’s achievement more in the spirit in which it was intended, understanding that for Grotius the natural law is (in Tesón’s apt phrase) “a complicated moral system” in its relation to human practice, especially that of war and peace between nations.  He notes that Grotius’s work was “intended for princes” rather than pure scholarly reflection, a decision that “should be commended, not criticized.”  Indeed, Richard Tuck’s introduction to the splendid Liberty Fund edition of The Rights of War and Peace remarks on the work’s widespread influence, reaching beyond scholars to statesmen – noting that “General Washington, like most well-educated English gentlemen, possessed a copy” (Tuck, “Introduction,” xi).  This is the better part of Tesón’s argument, suggesting that Grotius’s complicated, seemingly contradictory analyses of natural law and the law of nations accurately capture the reality of war, peace, and international affairs in a way likely to pull its leading actors toward moderating and ameliorating both thought and action, all with the aim of setting a more humane standard for political conduct.
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Montesquieu does not often cite by name the great jurists of international law such as Pufendorf or Grotius in his own influential work, The Spirit of Laws, but his private notes (the Pensées, translated by Henry Clark in a Liberty Fund edition) reveal that he was inspired by the erudition of Grotius.  While drafting Spirit of Laws he wrote:  “I give thanks to Messrs. Grotius and Pufendorf for having so well executed what a part of this work demanded of me, with that loftiness of genius which I would not have been able to attain.”[4]  Montesquieu in turn was the single most important influence on the drafting of the American Constitution and Bill of Rights, rivaled only by one of his protégés, Blackstone.  Moreover, it is telling that voices of the moderate Enlightenment such as Grotius, Blackstone, and Montesquieu are cited throughout The Federalist, but more radical, analytically pure voices such as Hobbes and Locke are not invoked.[5]   If Washington, in his Farewell Address (1796), argued that America’s strategy should be to balance consideration of its interests with the strict guidance of universal principles of justice – and therefore avoid being entangled in Europe’s great power politics while also engaging in international commerce and undertaking temporary alliances as needed – then both Washington and his advisers were echoing the balanced philosophy of international affairs propounded by Grotius and refined by Montesquieu.
Grotius announces a philosophical stance of moderation – of avoiding intellectual and practical extremes in search of a truer, higher, middle ground – from the beginning of De Jure Belli ac Pacis.  He notes that the “monstrous barbarity” and “licentiousness” regarding war even among Christian nations induced some Christian thinkers to endorse pacifism; but this, he says, moves “too much to the opposite extreme.”  His task is to find the golden mean, “as well to prevent believing that nothing, as that all things are lawful” in war (PD, secs. 29-30, 106-7; see Forde 1998, 639 and Zuckert 1994, 123, 343 n. 22).[6]   In a similar vein, Grotius defines human nature as oriented to society, but notes that society serves individual interest; and the same complex, balanced relation holds in the society of nations.  Just as an individual that violates domestic laws with a view to narrow self-interest “thereby saps the foundation of his own perpetual interest,” so a nation that violates the common “reason” inherent in “the laws common to all nations” – found in “the laws of nature and nations” – merely “break[s] down the bulwarks of their future happiness and tranquility” (PD, sec. 19, 94-95).  This balance of self-interest and sociability, indicative of Grotius’s philosophical moderation, informs his entire approach to the law of nations and its grounding in the law of nature. 
Grotius thus announces that a primary means to reducing conflict is to avoid giving grounds for conflict that might arise from strict claims about the linkage of the natural law and the law of nations.  Allowing so many “permissions” by which the law of nations suspends adherence to the law of nature “cuts off infinite disputes” in international affairs ( II.12.26, p. 766; see Forde 1998, 643).  Making strict adherence to natural law the standard for the law of nations “would be dangerous,” for if a third state were to “pronounce on the justice” of a conflict between two other states, “that state might quickly be involved in a war with other people.”  Because “even in a just war it is very hard to judge” what are the right means of ius in bello, “it is far better to leave it to the conscience of the persons engaged in war” to judge such matters and make their case (III.4.4, 1275-77; see also III.9.4, 1386; Forde 1998, 645).  This justification explains why Grotius turns in the last part of De Jure Belli ac Pacis to call for “moderation” regarding the grounds for war and its conduct.  He has prepared for this turn all along.  Beyond the effort to shame Christians in the broader arguments of the Preliminary Discourse and Book I, he invokes “the law of charity” repeatedly in the more detailed analyses of ius ad bellum and ius in bello.  Thus the law of nature might permit us to risk the death of innocents to ensure self-preservation, but “the law of charity ... does not permit it” (II.1, p. 398; see also, e.g., III.2, p. 1243).  These occasional references become a refrain once Grotius thematically emphasizes in Book III the importance of moderating, thus elevating, the conduct of states above the minimum standards permitted by the law of nations.  Indeed, the law of love becomes the definition of “humane” conduct expected of civilized, dignified leaders and their peoples (e.g., III.13.4, 1478-79).
It is true that Montesquieu insists upon refining Grotius; the latter’s argument for civility and humanity becomes, in The Spirit of Laws, a requirement of the right of nations.  A pillar of this right, or law, is “the law of natural enlightenment,” which, says Montesquieu, “wants us to do to others what we would want to have done to us” – even in, or especially in, matters of war, security, and conquest (Montesquieu 1989, 10.3, p. 139).  Nonetheless, as Montesquieu noted, he could not have developed this argument – which taught America’s constitutional founders such great respect for the law of nations and high standards of justice in international affairs – but for the genius of Grotius.
[4.] Montesquieu, My Thoughts, ed. and tr. Henry Clark (Liberty Fund, 2012); no. 1537, at pp. 441-42; see also no. 1863, at p. 556; both passages point to the closing remarks of the Preface to Spirit of Laws, as well as to the analysis of the right of nations in Book I, chapter 3 and Book X.  See also Tuck 1999: 184-87.
[5.] Publius invokes Grotius in no. 20 (Madison) and no. 84 (Hamilton); see Hamilton, Madison, Jay, The Federalist:  The Gideon Edition, ed. Carey and McClellan (Liberty Fund, 2001), pp. 96-97, 449.  On Montesquieu’s influence, see Donald Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review vol. 78 (1984): 189-97.  Moderation is explicitly invoked as an intellectual and political virtue in the opening and closing essays of The Federalist (no. 1, p. 2; no. 85, p. 453).
[6.] All references are to Hugo Grotius, The Rights of War and Peace, 3 vol., edited by Richard Tuck (Liberty Fund, 2005). Following custom, the references are to the Preliminary Discourse (PD) or Book, as the case may be, chapter, section, and page.