Liberty and International Order: The Truth of the Law of Nature and the Primary Law of Nations

     

Hans Blom’s two essays in this conversation argue, as only a renowned Grotius scholar could do, that Grotius is a quite modern thinker about natural law, justice, and war.  Blom also suggests that Grotius points toward postmodern conceptions of moral and political thought.  That is, if postmodernism means the rejection of nature and immutable truth as the grounds for moral and political principles, then Blom seems to read Grotius as a proto-postmodernist.  This interpretative issue has a direct bearing upon war, peace, and international security in our 21st-century world.  This is especially so given the recent demonstration that a great-power state bordering Europe has little regard for international norms about settled international borders, or the illegitimacy of aggressive or revanchist military force.  My practical claim is that if thinking about the law of nations is seen to rest only upon contemporary consensus, ever-revised – rather than resting upon the immutable ground of the law of nature – then international law loses much of its legitimacy and force.  This practical claim in turn rests on an academic one – that, pace Blom, Grotius is not a proto-postmodern, but instead is a modern natural-law jurist who searches for the ground of immutable truth that should guide international conduct.

Having staked the latter claim, I immediately will soften it.  In fact I think my view of Grotius is not diametrically opposed to Blom’s.  Still, if we do disagree, I avail myself of Grotius:  when discussing the authority of Aristotle, Grotius echoes Aristotle’s own view that we must respect great philosophical minds but depart from them if need be “for the sake of finding truth” (De Jure Belli, PD XLVI, 123).  Having cloaked myself with amicus Plato, I proceed to recklessly query a Grotius expert who offers two instructive contributions to our conversation.

Blom argues that Grotius propounds a “deliberative theory of justice” as a constructivist conception of right and law.  No individual or state has access to ground truth, so if we are to have peace and some kind of justice, we must work within institutions that establish “public reasoning.”  These in turn allow peaceful arbitration and development of “agreements” on norms. (In his essay on the ius gentium, Blom emphasizes a contemporary “consensus” on “normative principles” as what Grotius means by natural law.)  Blom declares: “in the end, for Grotius there is no objective value, and everyone is the interpreter of his own interests, values, and preferences.”  Thus the Grotian appeals to “right” and “natural law” really endorse a process of debate, and recognition of institutions for arbitration and reconciliation of views, so as to construct norms for governing conduct. 

I agree with this view to the extent that Grotius is not a Kantian in search of a priori truths known purely by reason, without the corruptions of experience or consequences.  That said, is a postmodern constructivism Grotius’s only alternative to this?  If I were to invoke moderation here, I fear my partners in this dialogue will roll their eyes.  Nonetheless I aver that Grotius held to a philosophical middle position between conventionalism (the opponent he confronts in opening the work) and philosophical absolutism, or a priorism.  He does so as a jurist and theologian who was liberally educated in the Roman civil law as modified by Christian philosophy and jurisprudence.  Central to that complex tradition is the balance between fixed but general principles of natural right on the one hand and, on the other, the individual’s judgment in discerning how to adhere to right in particular or changing circumstances.  Grotius invokes these conceptions of prudence and judgment early in the work, and relies upon them throughout. 

For example, Grotius states that man is endowed by nature with “judgment” and must exercise “a right and sound judgment” in discerning what natural right requires; this in turn will guide a “prudent management” in exercising distributive justice with all its discriminations among competing elements (PD IX-X, 87-88).   In discussing punishments – which are both a domestic matter and provide a rationale for war against offenders – he insists that the virtue of prudence is needed for both civil and international cases of wrong to discern whether and what punishment is due (II.20.IV, 972-75; see also II.20.XLIII, 1026-27).  Aristotle thus was correct to declare prudence as “a virtue peculiar to” rulers (II.26.IV, 1179).

I agree, therefore, that Grotius celebrates the jurist and statesman as arbiter, the embodiment of the distinction between peace and war.  The capacity to reconcile disputes through mechanisms of law is indeed “the social function of rendering justice” (Blom) that we tend to take for granted, perhaps especially when we disagree with a particular verdict.  Several early essays of The Federalist echo this Grotian view, applied to domestic and international contexts.  The lack of courts or executive offices under the Articles of Confederation meant that disputes among states – or, failure of the Confederation to abide by international law for lack of offices to enforce it – exposed Americans to the dilemma of either permitting injustice or having recourse to violence.  In no. 22, Publius (Hamilton) argues that the lack of such capacity is effectively a state of war (see also no. 3, no. 15, and no. 17 – by Jay and Hamilton).

The sticking point is that Grotius employs prudence, and institutions of domestic law and international convention, to mediate between high principle and concrete circumstances – but prudence is guided by the fixed truths discerned by right reason.  In international affairs there are several institutions that statesmen, jurists, and educators use to close the gap between natural law and the practice of the law of nations, seeking to raise the latter toward the former.  These include courts with jurisdiction under the law of nations, and jurists such as Grotius who educate statesmen and jurists about the laws of nature and nations.  There is much “process” here, but I don’t see Grotius elevating process and consensus over the search for immutable truths that rest upon nature.

Liberty for individuals and states depends upon these immutable truths; and, the genius of constitutional regimes is to incorporate a Socratic openness to hear opposing views about what truth is and what it entails in particular circumstances. The defense of principles of liberty requires confidence that these are not just a product of contemporary construction, but are grounded in our nature. This is most especially true because we, or our fellow citizens, might be called upon to kill or be killed to defend these truths. The search for a Rawlsian “global public reason” may be one pillar upon which the Peace Palace in The Hague rests; but among the other pillars is the forcefulness of liberal states, leaders, and citizens to stand for these principles against actors who ignore or repudiate them. Grotius seeks to reduce war, but he also teaches that there come moments when the process of arbitration or deliberation can do no further good and actors must be confident that right reason and law endorse their actions to defend justice.