Liberty Matters

Was Grotius Just an Advocate?

The excellent comments by Eric Mack, Hans Blom, and Paul Carrese have taught me a number of interesting things about Grotius and, in passing, have shown how little I know about this intriguing figure. I have no obvious counterpunch, and, like Eric, I suspect that the suggested readings are at least as good as mine, and probably better.
So I will confine myself to a few general remarks. I must confess from the outset that I am one of those who, in the words of Paul Carrese, prefer analytical purity to political moderation. This is in great part adaptive behavior, because I am a bad historian and not particularly good at contextual analyses of philosophical argument.  I learned a lot from Hans Blom’s skillful location of Grotius’s in the contemporary and modern literature. I was likewise marveled at Paul Carrese’s account of Grotius’s influence on the founders of this republic.  And I particularly liked Eric Mack’s radical hypothesis that Grotius was inviting us to jettison the Law of Nations. The comments demonstrate conclusively, if there was any need, Grotius’s historical influence on both the politics and the philosophy of the day. 
Having said this, I’m afraid I’ll stand by my criticism of Grotius’s jurisprudential method. Put succinctly, his arguments are not very good. I mean his arguments, not his conclusions. I concur with Paul that De Jure is a manifesto for moderation, and I particularly like Eric’s and Hans’s suggestion that Grotius is, in different ways, a forerunner of modern liberal thought.  But nothing I read from them has addressed to my satisfaction the conceptual problems that afflict De Jure.
The first and less serious problem, not to repeat myself, is the somewhat arbitrary presentation of the Law of Nations, of international custom. Grotius would not have passed my international law course by quoting Seneca, Tacitus, and Carneades.  One would have expected a leading jurist and diplomat to enlighten us about the international practices of his time.  
But the more serious problem is that his jurisprudential method fails to explain how moral truths bear on legal propositions. Being a natural lawyer is a tough way to make a living. Positivists have it easy: they simply point to social facts (laws, treaties, and custom) and say that they determine the content of legal propositions. But as soon as you summon the Law of Nature you must specify what exactly is a natural-law argument and how you think it treats the social facts of human law. St. Thomas Aquinas and Ronald Dworkin are two illustrious examples of efforts in that direction. But Grotius wavers between one and the other (sometimes, I fear, according to convenience) and in doing so he becomes vulnerable to the charge of arbitrariness. It is not a coincidence that writers see Grotius so differently, as Hans Blom reminds us. Positivists claim Grotius as one of their own because of his vindication of the Law of Nations as binding notwithstanding its demonstrable injustice. Natural lawyers also enlist him in their ranks because of his vindication of the Law of Nature in the Preliminary Discourse and elsewhere. But in my judgment Grotius did not present an intellectually satisfying integrated view, that is, a view that would calibrate the positivist and nonpositivist strands in his argument.
Paul Carrese is absolutely right: Grotius eschews intellectual purity in favor of what works, what can persuade people. I will be the last to deny the importance of advocacy, but an argument’s historical importance or political success does not speak to its truth or quality. Advocacy, I would suggest, is a failure of political discourse, because its aim is to persuade and not to seek the truth. Was Grotius just an advocate? This is surely too harsh: keener minds than mine, including my commentators, have rendered a favorable verdict. But this does not relieve us from subjecting Grotius’s arguments to probing scrutiny. If we like his moderate views, we would want them to prevail in the realm of ideas, and not just in the messy arena of international politics.