Liberty Matters

Another Shot at the Law of Nations

Paul discusses and critiques my radical and wild hypothesis – that Grotius’s real message is that we should jettison the law of nations and place our hopes on the law of nature – with marvelous scholarly delicacy.  Someday, when I grow up, I’d like to achieve a slither of that intellectual refinement. (But my hopes are very slim.) And, of course, Paul is correct to point out that Grotius gives different characterizations of the law of nations in different places; and that is a problem for my hypothesis. 
Moreover, there are particular moments in Grotius’s discussion of the morality of conduct in warfare that do not fit my suggestion that, if anything, Grotius seeks to exaggerate the brutality of law-of-nations norms and the nonbrutality of the counterpart law-of-nature norms. For example, had Grotius been dead set on emphasizing the brutality of law-of-nation norms, he would not have paused to say that the law of nations precludes the ravishing of the enemy’s women (III. IV. XIX.1).  I also believe there is one instance in which the law of nations is said by Grotius to be more restrictive of conduct in war than the law of nature.  But I have not been able to locate that instance in the text.
Still, the contrast between what Grotius says the law of nations allows in warfare and what he says the law of nature allows is very striking.  In case after case – e.g., the killing of bystanders, the killing of prisoners, the killing of those who have asked for quarter, the seizure of the property of the enemy’s subjects or the property of those who happen to be in the enemy’s territory, and so on – the law of nations is said to permit the conduct and the law of nature is said to prohibit it.  Equally striking is the fact that Grotius does not say, “Well, there is the law-of-nations teaching and there is the law-of-nature teaching.  We should attend seriously to both and (somehow) come up with stances that give each their considerable due weight.”  Rather, at the beginning of his presentation of the law-of-nature teachings, he says that he must “take away from those that make War almost all the Rights, which I may seem to have granted them [under the law of nations]; which yet in Reality I have not” (III. X. I.1).  So I think I at least want to stick by the claim that Grotius is on the verge of calling for the jettisoning of the law of nations – where this is understood as a body of norms quite distinct from the law of nature.
I did offer, and I re-offer here, a supplementary hypothesis about why we find Grotius giving both law-of-nations and law-of-nature answers to questions about what is lawful in war.  That hypothesis is that he is engaged in both a positive account of the law and a normative account of the law.  I supported that account by citing Grotius’s remark that there is a “double Meaning of the Word lawful, the one being taken for that which is really lawful in itself, the other for that which is only lawful externally” (III. X. I.3).  My thought is that Grotius is engaged in both this descriptive project and this normative project and that he is not clear enough in his own mind about the difference between these projects.
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In his initial essay, Fernando criticizes Grotius for not presenting a report of the actually accepted norms of warfare of his time.  Presumably, the real law of nations for his time consisted in those actually accepted norms.  Were those actually generally accepted practices of Grotius’s time less horrendous than what Grotius says is permissible under the law of nations?  I certainly do not know – albeit, Shakespeare’s Henry V suggests less contemporary acceptance of the killing of prisoners than is found in Grotius’s recounting of the law of nations. 
Why do I raise this historical question?  My reason is that, if the actual accepted norms of warfare of Grotius’s time were less horrendous than the law-of-nations norms that he recounts, one might take that as evidence that Grotius was going out of his way to give a horrifying picture of the law of nations.