Liberty Matters

The Radical Grotius Hypothesis: Why Not a Philosophical Middle Ground?


Erick Mack’s reply to Fernando Tesón’s initial essay finds the two in agreement about a conflict in De Jure Belli ac Pacis – namely, that Grotius does not adequately explain how to harmonize his conceptions of natural law and the law of nations.  They further agree that the better philosophical and jurisprudential element in Grotius is the natural law, the higher normative standards for war and peace.  Mack then proposes a hypothesis, admittedly “radical” and “wild,” that Grotius intended to heighten the tension between these two kinds of law so that we would be compelled to jettison the customary law of nations given the moral and philosophical superiority of the law of nature.  I learned from, and agree with, nearly all of Mack’s analysis of the Grotian conceptions of the laws of nature and of nations, and of the rights of peace and war.  However, rather than finding in Grotius an irreconcilable conflict in these pairs – such that he ultimately seeks to discard the law of nations and rights of war in favor of the rights of peace that accord with the law of nature – I again suggest that the Grotian philosophy seeks a sound middle ground between extremes.  It is possible that he seeks a balance or blend of views on the complicated relation between these kinds of law, especially given the analogous senses of “the law of nations” that he employs.
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One issue is whether Grotius strictly defines the law of nations as only positive or customary law, as Mack contends, and therefore whether the law of nations exists only in contrast with, or contradiction to, the law of nature.  I reply that for Grotius “the law of nations” is polyvalent.  One sense is, as Mack argues, a positive law that is not derived from nature – the law of nations as “voluntary” or customary law.  Mack cites the Preliminary Discourse defining the customary law that nations adopt “by common consent.”  Still, the phrasing is careful: this “is called the Law of Nations, when used in distinction to the Law of Nature” (PD XVIII, 94, emphasis added; see also II.VIII.I, 634).  Grotius leaves room here for a secondary sense of the law of nations, one not so opposed to the law of nature.  Indeed, the next section suggests that the law of nations reflects the law of nature, which aims at the happiness or fulfillment of our nature.  States that violate the law of nations undermine their own good, since the law of nations manifests the natural law:  “So that people which violate the Laws of Nature and Nations, break down the bulwarks of their future happiness and tranquility,” since violating these related, mutually reinforcing laws is acting contrary to “the impulse and direction of our own nature” (PD XIX, 94-95).  Shortly thereafter Grotius insists that this intrinsic relation between the kinds of law entails that “the society of mankind, or of several nations” requires conduct according to principles of “right” and standards of “just or unjust”  (PD, XXIV, 98-99, including note 3).  He cites both Aristotle and Cicero, but emphatically endorses Cicero on moderation or modesty (temperantia) in human affairs.  That “great orator and philosopher” insists that we must never forsake moderation and the higher requirements of natural law for its lowest requirement of self-preservation, since (quoting Cicero), “there are some things so shameful and criminal, that a wise man will not do them even for the preservation of his country.”
Mack admits that Grotius uses “laws of nature” as polyvalent, with a focal sense and then (as Mack writes) “an extended and less proper sense.” (Mack also cites III.X.1, 1414, on the polyvalence of “law.”)  In Grotius’s deployment of “the law of nations,” some passages emphasize the distinction between the two kinds of law (e.g., PD XLI, 112) – with natural law meaning inferences drawn from nature, while the law of nations derives from universal consent.  Elsewhere he discusses “the right of nations” as considered to be derived from the right of nature (I.I.XIV, 163).  Still elsewhere the law of nations merges with the law of nature:  “By the law of nature then, which may also be called the law of nations, it is plain, that every kind of war is not to be condemned” (I.II.IV, 189).
Upon this basis, I will recapitulate the moderate hypothesis by suggesting that Grotius’s emphasis in Book III of De Jure Belli ac Pacis on moderating and elevating the law of nations – so as to bring it up to the standards of the law of nature, justice, equity, and the Christian law of love (III.X and following) – is not so remarkable or extraordinary a turn.  Throughout the three books he has noticed, and condemned, the gap between the customary law of nations and the law of nature regarding both ius ad bellum and ius in bello.  This also is, for him, a gap between customary law of nations and the more legitimate law of nations grounded in or derived from nature (and thus from justice, equity, and the virtues both strictly rational and Christian).  He seeks to close that gap.  Mack argues that Grotius does so by jettisoning the law of nations with its rights of war, then building a new conception of “the rights of peace” on the proper law of nature.  That would seem to turn Grotius in a pacifist, even Kantian direction that doesn’t comport with the complexity and balance of his philosophy. 
That said, the complexity of Grotius’s analysis, and of his ultimate effort to push the law of nations in a truer and more natural direction, leads us to these interpretative difficulties.  He seeks to persuade elites in the Christian nations, and in nations seeking to be considered civilized, that legitimate reasons and laws must reflect not the minimal sense of the law of nations but the higher standard that pulls together the two laws, of nature and nations.  Perhaps he seeks to demonstrate his encyclopedic understanding of all the reasons – excuses – rulers have for following the lower path of war as injustice, in hopes that this provides him a credible basis for pulling them toward a higher conception of justified, and more limited, war.  Recent events remind us that rulers and diplomats can claim to abide by international law, and principles of democratic consent, while merely citing such scripture for brutal purposes.  Grotius alerts us to the distinction, but in a way that retains a credible or realistic awareness of the presence of brute power in international affairs.