Grotius
• Hugo Grotius [1583-1645)
[1583-1645)
entered the University of Leiden when he was
just eleven years old. There he studied with
some of the most acclaimed intellectuals in
northern Europe, including Franciscus Junius,
Joseph Justus Scaliger, and Rudolph
Snellius.[1]
In Holland, Grotius earned an appointment as
advocate to The Hague in 1599 and then as
official historiographer for the States of Holland
in 1601.
Grotius was sentenced to life imprisonment in
Loevestein castle.
He was imprisoned in 1618 for his views on a
theological point. “In 1621, with the help of his
wife and maidservant, Grotius managed to
escape the castle in a book chest and fled to
Paris. In the Netherlands today, he is mainly
famous for this daring escape.”
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Grotius
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• Our selection is from his masterpiece,
• “The Rights of War and Peace, including the Law of Nature and of
Nations”
• The case is interesting because nations (and privateers on the seas) “are
held together by no common bond of civil laws to decide their
dissensions”
• Grotius repeats the maxim of Aquinas, that “war is undertaken for the
sake of peace”
• “and there is no dispute, which may not give rise to war
• from which he concludes that “it will be proper to treat all such
quarrels, as commonly happen, between nations, as an article in the
rights of war:
• and then war itself will lead us to peace, as to its proper end.”
Grotius
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So the stage is set for an inquiry into the settling of disputes among
independent people pursuing their own interests as best they can
“War” is “ a state of contention”
Right is whatever is not unjust
and: “any thing is unjust, which is repugnant to the nature of society,
established among rational creatures.”
e.g.: “ to deprive another of what belongs to him, merely for one's own
advantage, is repugnant to the law of nature”
, as Cicero observes ... [saying] that, if the practice were general, all society
and intercourse among men must be overturned. ...
Two kinds of right: Right, strictly taken, is twofold:
the one, private, established for the advantages of each individual
the other, superior, as involving the claims, which the state has upon
individuals, and their property, for the public good.
Grotius
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• A major insight about justice:
• permission is no act of the law, but only its silence
• however it prohibits any one from impeding another in doing what
the law permits. ... [IX]
• Natural right is the dictate of right reason
• Thus property - was at first a creature of the human will.
• But, after it was established, one man was prohibited by the law of
nature from seizing the property of another against his will. ...
• [? How does that square with this next:]
• the Law of Nature is so unalterable, that it cannot be changed even by
God himself.
• For although the power of God is infinite, yet there are some things,
to which it does not extend, because the things so expressed would
have no true meaning, but imply a contradiction.
• [N]o beings, except those that can form general maxims, are
capable of possessing a right ...
Grotius
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CHAPTER I.
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Defence of Person and Property.
Just war begins in Injury:
The justifiable causes generally assigned for war are three:
1 - defence,
2 - indemnity, and
3 - punishment,
..... A just cause then of war is an injury, which though not actually
committed, threatens our persons or property with danger.
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In strict justice, it cannot be denied that we have a right to kill a robber,
if such a step is inevitably necessary to the preservation of our property.
We may defend ourselves
only the sovereign power may punish.
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But: not a just cause of war that the other guy is getting bigger than you!
(“whose increasing greatness awakens her alarms.”)
Grotius
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CHAPTER I (continued)
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things passed from being held in common to a state of property
It was not by the act of the mind alone that this change took place.
[The trouble is, we don’t know other people’s minds...]
Property therefore must have been established either
by express agreement, as by division,
or by tacit consent, as by occupancy.
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First Occupancy as the basis of just property:
For as soon as it was found inconvenient to hold things in common
it is natural to suppose
it must have been generally agreed, that
whatever any one had occupied should be accounted his own.
Grotius
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CHAPTER I (continued)
• some things are impossible to be reduced to a state of property,
• the Sea: it’s so big “ as to be sufficient for the use of all nations”
• occupancy can never subsist, but in things that can be confined to
certain permanent bounds... [the sea doesn’t stay put!]
• extreme necessity - “ the original right of using things, as if they had
remained in common, must be revived”
• Grotius notes Aquinas’ view: what is taken in extreme necessity isn’t
to be reckoned Theft
• Grotius adds that this rule is
• “ not founded, as some allege, solely upon the law of charity
• -- but upon the original division of lands among private owners, which
was made with a reservation in favour of the primitive rights of nature.
• [q: how did he know that?]
Grotius
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CHAPTER I (continued)
• Now this indulgence must be granted with precautions and restrictions,
to prevent it from degenerating into licentiousness.
• And of these precautions,
• (1) the distressed party to try every mode of obtaining relief
• (2) this plea of necessity cannot be admitted, where the possessor is in
an equal state of necessity himself.
• [Note that this appears to imply that we must continue to help until we
are nearly in a similar condition ourselves!]
• (3) the party thus supplying his wants from the property of another, is
bound to make restitution, or give an equivalent to the owner,
whenever that is possible.
• [and what if it isn’t?]
Grotius
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CHAPTER I (continued)
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1. in a just war, any power has a right to take possession of a neutral soil;
if there be real grounds, and not imaginary fears for supposing the enemy
intends to make himself master of the same,
especially if the enemy's occupying it would be attended with imminent and
irreparable mischief to that same power.
But in this case the restriction is applied that nothing be taken but what is
actually necessary to such precaution and security.
2. There is another right, which is that of making use of the property of
another, where such use is attended with no prejudice to the owner.
3. [controlling foreign trade:] May one nation lawfully agree with another to
exclude all nations but herself from purchasing certain productions, which are
the peculiar growth of her soil?
[Yes] - if the purchaser intends to supply other nations with those articles at a
reasonable price. For it is a matter of indifference to other nations of whom
they purchase, provided they can have a reasonable supply for their wants.
Nor is there anything unlawful in allowing one people an advantage over
another in this respect
... such a monopoly is no way repugnant to the law of nature, though it may
be sometimes for the interest of the community to prohibit it by express laws.
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Grotius
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CHAPTER II (continued)
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If you make it, and the materials were common, it’s yours; but if they belonged
to someone else, then the new production is not yours.
Sovereignty, says Seneca, belongs to Princes and property to individuals.
Things which have had an owner, but have ceased to have one, become
subject to the right by original acquisition. They ... have returned to the
original state of common stock.
But at the same time it is proper to observe, that
sometimes the original acquisition may have been made by a people or their
sovereign, in such a manner as to give them or him not only those preeminent rights which constitute prerogative, but also the full title of
property... [what ‘manner’ is that??]
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Grotius
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CHAPTER II (continued)
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Long possession makes one the owner
But suppose long claimed possession with no use made of it?
The effect of right which depends upon a man's intentions can never follow
from a bare conjecture of his will
Thus the person, who knowing of an act, and being present at the commission
of it, passes it over in silence, seems to give his consent to it ..
uninterrupted possession, against which no claim has been asserted, will
entirely transfer such property to the actual possessor
[whereas] a transitory possession creates no title. ..
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Grotius
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CHAPTER IV (continued)
• May, by desertion, persons yet unborn be deprived of their rights?
• Yes! - “If we maintain that they may not, the rule already established
would be of no avail towards settling the tranquillity of kingdoms, and
security of property.”
• To clear up this point, we must observe that no rights can belong to a
person before he has any existence ...
• The Sovereign is above the law ..
• to make a law binding upon any one, it is requisite that the legislator
should possess both power and will.
• A legislator is not bound by his law, as by the irrevocable and
unchangeable control of a superior
• Yet a legislator may be bound by his own law, not directly as a
legislator, but as an individual forming part of the community ...
• - the right to property may be lost by neglect
Grotius
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X
Restitution:
it is an established rule of society among the owners, that the person,
who had in his possession anything belonging to another should
restore it to the lawful proprietor.
the person, who has become richer by that property, of which the
rightful owner has been dispossessed, is bound to make him reparation
in proportion to the benefit, which he has derived from his property.
In the next place, a bona-fide possessor of a thing is bound to a
restitution of the fruits or profits thereof remaining in his hand...
[all of them? What if the interloper was a better businessperson?]
the person that has bought a thing of one, who is not the owner, cannot
return it to that seller
CHAPTER
Grotius
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if any one is in possession of a thing, whose real owner is unknown, he is not
naturally, and necessarily bound to give it to the poor; although this may be
considered as an act of piety, a custom very properly established in some
places.
The reason of which is founded on the introduction of property, in
consequence of which, no one except the real owner, can claim a right to
any thing.
To the person therefore, who cannot discover such an owner, it is the same as
if there really were none.
Grotius
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Chapter XII. Contracts
viii In all contracts, natural justice requires an equality of terms
This equality consists partly in the performance, and party in the profits of the
contract, applying to all the previous arrangements, and to the essential
consequences of the agreement.
As to an equality of terms previous to the contract, it is evident that a seller is
bound to discover to a purchaser any defects, which are known to him, in
a thing offered for sale;
a rule not only established by civil laws, but strictly conformable to natural
justice. For
the words of agreement between contracting parties are even stronger
than those, on which society is founded.
[I]t is not every degree of silence, which amounts to concealment; nor is one
person bound to disclose every thing, which may be of service to another.
Thus for instance, a man of science is not strictly bound to communicate to
another that knowledge, which might redound to his advantage.
Contracts “require some closer and more intimate connection than bare
goodwill to enforce their obligation...”
Grotius
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• In the principal act itself, the proper equality requires that
no more should be demanded by either party than what
is just.
• For all promises or gifts, in these cases, are made with an
expectation of receiving an equivalent in return...
• [How would that be judged??]
• The general demand for any thing, as Aristotle has clearly
proved, constitutes the true measure of its value
• the prices of things do not depend upon the humours and
interest of individuals, but upon common estimation, that
is, as he explains himself elsewhere, according to the
worth which they are of to all.
• Hence it is that things are valued in proportion to what is
usually offered or given for them
Grotius
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• Monopoly:
• not every kind of monopoly amounts to a direct violation of the laws of
nature.
• The Sovereign power may have very just reasons for granting
monopolies, and that too at a settled price .
• .. A monopoly also may, in some cases, be established by individuals,
provided they sell at a reasonable rate.
• But all combinations to raise the necessary articles of life to an
exorbitant rate, ... are public injuries and punishable as such.
• A way of preventing the importation of goods, or buying them up in
order to sell them at a greater rate than usual, though the price,
under some particular circumstances, may not seem unreasonable, is ...
a breach of charity; though it come not directly under the
prohibition of laws.
Grotius
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• money
• -- its uses do not result from any value intrinsically belonging to the
precious metals, or to the specific denomination and shape of coin,
• but from the general application which can be made of it, as a
standard of payment for all commodities.
• For whatever is taken as a common measure of all other things,
ought to be liable, in itself, to but little variation.
• Now the precious metals are of this description, possessing nearly the
same intrinsic value at all times and in all places....
• XIX. interest
• the arguments against do not “command our assent.”
• ... bad argument: taking interest for the use of money is in its own
nature barren and unproductive. For the same may be said of
houses and other things, which are unproductive and unprofitable
without the industry of man...
Grotius
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Service charges
some kinds of [charges], look like usury, but aren’t:
commissions by bankesr, for instance - is not interest
but a compensation for his trouble, and for the risk and inconvenience he
incurs, by the loan of his money, which he might have employed in some other
lucrative way...
XXI. Those human laws, which allow a compensation to be made for the use
of money or any other thing, are neither repugnant to natural nor revealed
law...
In trading partnerships, where money is contributed by both parties; if
the proportions be equal, the profits and the losses ought to be equal also.
Or, if unequal, the profits and the losses must bear the same proportion..
Grotius
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Equality in business partnerships:
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you can’t share in the gain, and be exempt from the losses.
Yet it may be so settled without any degree of injustice.
For there may be a mixed contract arising out of a contract of insurance in
which due equality may be preserved, by allowing the person, who has taken
upon himself the losses, to receive a greater share of the gain than he would
otherwise have done.
But it is a thing quite inadmissible that any one should be responsible for
the losses without partaking of the gains; for a communion of interests is so
natural to society that it cannot subsist without it...
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Grotius
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• The Interpretation of Treaties.
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Good faith, observes Cicero, requires that a man should consider as well what
he intends, as what he says.
But acts of the mind are not, of themselves visible
so - it is necessary to fix upon some determinate mark, to prevent men from
breaking their engagements, by allowing them to affix their own interpretation
to their words.
It is a right, which natural reason dictates, that every one who receives a
promise, should have power to compel the promiser to do what a fair
interpretation of his words suggests.
For otherwise it would be impossible for moral obligations to be brought
to any certain conclusion. .
Grotius
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The Interpretation of Treaties (continued)
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Where we have no other conjecture to guide us,
words are not to be strictly taken in their original or grammatical sense,
but in their common acceptation,
for it is the arbitrary will of custom, which directs the laws and rules of
speech. ...
It is necessary to make use of conjecture, where words or sentences admit of
many meanings... and whenever a seeming contradiction occurs in the
expressions of a treaty.
For in that case we must try to discover such conjectures, as will reconcile, if
possible, one part with another.
For if there be an evident contradiction, the contracting parties by their
latter determinations must have intended to abrogate their former; as no
one can design to make contradictory resolutions at the same time. ...
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Grotius
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The Interpretation of Treaties (continued)
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Now the principal sources of conjecture are to be found in the subject-matter, the
consequences, and the circumstances and connection.
From the subject-matter: example, the word ‘day’: if a truce be made for thirty days,
here civil [24 hr. periods] and not natural days [hours of sunlight] are meant...
consequences, especially where a clause taken in its literal meaning would lead to
consequences foreign or even repugnant to the intention of a treaty. ...
example: Brasidas, promising that he would evacuate the Boeotian territory, said he did
not consider that as Boeotian territory, which he occupied with his army; as if the
ancient bounds were not intended, but only what remained unconquered - an evasion,
which entirely annulled the treaty.
circumstances or context - light may be thrown upon the meaning of an expression
from the circumstance of its being used by the same person to express the same
intentions on other similar occasions,
- and from its relation to what goes before,
- and what follows the place, where it stands.
For in all doubtful cases, we have reason to suppose that the contracting parties
mean to be consistent with their former opinions and intentions. ...
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Grotius
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The Interpretation of Treaties (continued)
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regarding the rules themselves:
words are to be taken strictly in their popular meaning, and where they admit
of exceptions, or have more significations than one, it is lawful to use that
which is most extensive. ...
... Again, we must never have recourse to a metaphorical interpretation,
except where the literal meaning would lead to a direct absurdity, or would
defeat the intention of a treaty.
On the other hand a passage may be interpreted in a more limited signification,
than the words themselves bear, if such interpretation be necessary, to avoid
injustice or absurdity. ...
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Grotius
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The Interpretation of Treaties (continued)
A treaty made with a king continues in force, even though the same king or his
successor should be banished from the kingdom by rebellious subjects.
For the rights of a king, among which his alliances may be reckoned, remain
unimpaired, during the temporary loss of his throne...
• XVIII. On the other hand, any war, if it be with the consent of the lawful
sovereign, made upon the invader of his kingdom, or upon the usurper of a
free people's rights before his usurpation has received public sanction, will be
deemed no infraction of any former treaty with the established authorities
of that kingdom or country.
• For acts of usurpation convey not immediately any right beyond that of
bare possession. ..
Grotius
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The Interpretation of Treaties (continued)
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If it were evident that an absurdity would follow the fulfillment of a promise,
this would be sufficient to prove an original defect in the intention, because no
man can be supposed to have deliberately intended doing an absurd act.
Wiggle room:
as all cases could neither be foreseen nor expressed by the lawgiver, it is
necessary to leave a power of excepting the cases, which he himself would
have excepted if he were present.
Yet this is not to be done upon light grounds;
-- only upon the clearest evidence and strongest proofs.
clear proof of want of equity:
where following the literal meaning of the words would be unlawful,
-- that is, repugnant to natural or divine precepts.
Thngs incapable of obligation, are necessarily to be excepted. ...
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Grotius
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The Interpretation of Treaties (continued)
• -- or, “too hard and intolerable”
• XXIX. accidental collision between one part of a written document
and another - Cicero’s rules for deciding which has preference. ...
• 1 - a permission ought to give way to a command:
• 2 - what is required to be done at a fixed time should have the
preference to what may be done at any time.
• 3 - Among treaties equal in the above respects, the preference for the
more particular, and “approach nearer to the point in question.
• 4 - Those prohibitions which have a penalty annexed to them, are of
greater weight than those, which have not;
• 5 - Lastly, a subsequent law or treaty always repeals a former.
Grotius
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The Interpretation of Treaties (concluded)
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Where the party accepting the terms is the promiser, the nature and substance
of the transaction will depend upon his words, if they are absolute and
unqualified.
... But before a condition is accepted, it is evident that the promiser is not
bound to its fulfilment; for no right has been conferred by the one party, or
acquired by the other.
Therefore the offer of a condition of this kind does not amount to a perfect
promise.
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Grotius
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Book III
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CHAPTER I. What
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an inquiry into
(1) the circumstances, under which war may be undertaken,
(2) into the extent, to which it may be carried, and
(3) into the manner, in which its rights may be enforced.
is Lawful in War.
• all these matters may be viewed in the light of
• (a) privileges resulting simply from the law of nature and of
nations, or
• (b) as the effects of some prior treaty or promise.
• Those authorised by the law of nature, deserve first attention....
Grotius
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• The Natural Right to Defend Oneself:
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It is evident that we may justly avail ourselves of those means, provided
they be lawful, which are necessary to the attainment of any right.
Right in this place means what is strictly so called, signifying the moral power
of action, which any one as a member of society possesses.
On which account, a person, if he has no other means of saving his life, is
justified in using any forcible means of repelling an attack
- though he who makes it, as for instance, a soldier in battle, in doing so, is
guilty of no crime.
For this is a right resulting not properly from the crime of another, but
from the privilege of self-defence, which nature grants to every one. ...
Grotius
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Upon the same principle
(1) any one has a natural right to seize what belongs to him but is
unlawfully detained by another
... recoveries of this kind establish a property in the things so reclaimed
- which is the only method of restoring the equality and repairing the
breaches of violated justice.
So too when punishment is lawful and just, all the means absolutely
necessary to enforce its execution are also lawful and just, and
every act that forms a part of the punishment, such as destroying an enemy's
property and country by fire or any other way, falls within the limits of justice
proportionable to the offence.
Grotius
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(2) those who join our enemies, either as allies or subjects, give us a right
of defending ourselves against them also.
So too a nation engaging in an unjust war, the injustice of which she knows
and ought to know, becomes liable to make good all the expenses and losses
incurred, because she has been guilty of occasioning them. ...
“collateral damage”:
(3) an individual or belligerent power may, in the prosecution of a lawful
object, do many things, which were not in the contemplation of the
original design, and which in themselves it would not be lawful to do.
Thus ... it is lawful to attack a ship manned by pirates, or a house
occupied by robbers, although in that ship, or that house there may be
many innocent persons, whose lives are endangered by such attack.
Grotius
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what is conformable to right taken in its strictest sense is not always
lawful in a moral point of view.
• [sometimes] the law of charity will not allow us to insist upon our right
with the utmost rigour....
• But wherever there is any doubt, it is always the safer way to decide in
favour of another's interest, than to follow the bent of our own
inclination...
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Wars, for the attainment of their objects, it cannot be denied, must
employ force and terror as their most proper agents.
May stratagems be lawfully used in war? The general sense of mankind
seems to have approved of them.
VII. The word stratagem, ... taken in a negative sense, includes such actions, as
have nothing criminal in them, though calculated to deceive, where any one,
for instance, uses a degree of dissimulation or concealment, in order to defend
his own property or that of others...
For as you are not bound to disclose to others all that you either know or
intend; it follows that, on certain occasions, some acts of dissimulation,
that is, of concealment may be lawful.
Grotius
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Use of feints, deceptions, and even lies, in the course of military
effort, is in general permissible, says Grotius
In ordinary life, intentional falsehood is rightly condemned
“[E]ven the grave, sober, and discerning Aristotle describes falsehood
as a vile and abominable refuge, painting truth as a lovely object, that
must extort the warmest praise.”
Unknowingly uttering a falsehood is not lying.
Telling the whole truth is not generally a duty either
Grotius lists several conditions that would justify telling untruths.
especially (5): a stratagem may be practised where it may be the only means
of saving the life of an innocent person, or some object of equal importance, or
of diverting another from the perpetration of some horrid design. ...
- which is frequently the situation in war
An important distinction:
But this does not include breaking actual promises - even those made to
enemies: “this is a rule, which must take place, even between public enemies:
a rule to which existing hostilities are not allowed to form an exception.”
Grotius
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[T]he law of nations allows belligerent powers to alarm each other, if
possible, into submission upon the most unequal terms, in the same
manner, as it gives a sanction to many things not strictly equitable
according to natural and municipal law. For if such a practice had not
been established, wars, which are so frequent, could never have been
brought to a conclusion, an object so much for the interest of mankind.
...
• The only impressions of fear, that can be lawfully inspired in regular
war, are those which are approved of by the law of nations. Thus no
one can avail himself of a promise, extorted from an ambassador under
impressions of fear excited by the seizing of his person. ...
Grotius
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CHAPTER XX On the Public Faith, by which War is Concluded
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Good faith, either expressed or implied, must be the foundation of every
treaty between hostile powers. ..
It is by pledges given on the part of the sovereign power alone that peace can
be concluded, or the rights of war enforced.
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The person, who has authority to begin a war, is the only one to whom the
right of making peace can properly belong .. public war can be made by the
sovereign power alone on each side....
The property of subjects is under the eminent control of the state, which
can use that property, or destroy it, or alienate it, not only in cases of extreme
necessity
... but on all occasions, where the public good is concerned, to which the
original framers of society intended that private interests should give way. But
when that is the case the state is bound to repair the losses of individuals, at
the public expense, in aid of which the sufferers have contributed their due
proportion.
[example Yukiko’s cafe....]
Grotius
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Indemnity, etc: conditions for peace-making
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1. Ideally, the party who has justice on his side (and which is why he went to
war) would be indemnified for his losses.
2. no party may gain more than an indemnity
3. No punishments may be imposed (that is “odious”) [see the Treaty of
Versailles (1921) ...
- In making peace, it scarcely ever happens that either party will acknowledge
the injustice of his cause;
4. ... so, we should “equalize the pretensions of each side”
by (1) restoring the disputed possessions to their former situation, or
(2) leaving them in the state to which the war has reduced them.
5. Unless there is an express stipulation to the contrary ... no actions are to be
brought for losses occasioned by the accidental calamities of war, either to
states or individuals.
For those are natural consequences of a state of hostilities; and ... no
belligerent would consent to be convicted of injustice.
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Grotius
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6. All captures, made after a treaty is finished, must evidently be restored. For
the treaty puts an end to all the rights of war.
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7. The person, to whom any thing is ceded by a treaty of peace, is entitled to
the produce and fruits of it, from the time of such cession, and not farther back
...
Three ways of breaking a peace:
(1) by doing what is “contrary to the essence of peace”
(2) by violating the particular terms of this peace
(3) by doing something contrary to the effects, intended to arise from
every peace
(a) But where any specious pretext can be assigned for taking arms, it is better
it should be supposed purely an act of injustice, than an act of injustice
accompanied with perfidy.
(b) behavior of allies: after the peace, this is not accountable to the other allies
- if party B attacks, ally C does not get the blame
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Grotius
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Freedom of individals to move from one formerly belligerent country to
another
“But it is not lawful to receive whole towns, or great bodies ... nor those who
are bound to the service of their own state by oath or other engagement.”
Duties re arbitration: a distinction
(1) between kings and nations: these must be lived up to
(2) “when any one makes an absolute surrender of himself and all his rights to an
enemy or foreign power.” Then there’s lots of discretion ...
(a) the conqueror should avoid committing any act of injustice, or using any rigour,
“except the demerits and atrocity of the enemy require it”
(b) ... The best conclusion is a fair adjustment, and a general amnesty.
- These are not an abolition but only a mitigation of the conqueror's absolute right.
“Though the law of nations may in its literal rigour allow of putting hostages to death, it
can never conscientiously be enforced, but where they have committed crimes deserving
of capital punishment. Nor can they be enslaved.”
[example: the Nuremberg Trials; American treatment of Japan after WW II.]
Grotius
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Truces
this is a temporary cessation of hostilities
not a peace - after it, hostilities resume as before
but during it, no such hostilities are allowed “every act of violence during a truce is contrary to the law of nations”
but, for example, to “repair walls or raise new forces” is permitted unless
specifically forbidden by the terms of the truce
Any violation of a truce gives the other side an immediate right to resume hostilities
If a penalty is asked for and paid, then the side that imposes the penalty has no
right to resume war
and resuming the war absolves the other side of any payments
free passage implies free right of return [no “killing the messenger”]
safe-conducts protect that individual “even beyond the territories of the grantee”
Grotius
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Tacit Faith
in whatever manner consent is indicated and accepted it has the power of
conveying a right.
For example: a person coming from an enemy, or foreign country, and
surrendering himself to the good faith of another king or people. Such a one
tacitly binds himself to do nothing injurious or treacherous to that state, where
he seeks protection, a point which is beyond all doubt.
“mute signs”: the white flag as a sign of suing for a parley. All these methods
have the force of express declarations.
Grotius
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Grotius’ Concluding words:
admonitions on means of preserving good faith in war, and maintaining peace,
afterward
and for preserving good faith - the desire of keeping alive the hope of peace - even in
the midst of war.
For good faith, as Cicero says, is the principal means by which all governments are
bound together .... Destroy this, says Aristotle, and you destroy the intercourse of
mankind...
In the very heat of war the greatest security and expectation of divine support must be in
the unabated desire of peace, as the only end for which hostilities can be lawfully
begun.
Even for the stronger party, flushed with victory, peace is a safer expedient, than the
most extensive successes. For there is the boldness of despair to be apprehended from a
vanquished enemy, dangerous as the bite of a ferocious animal in the pangs of death.
On whatever terms peace is made, it must be absolutely kept.
“May God, to whom alone it belongs to dispose the affections and desires of sovereign
princes and kings, inscribe these principles upon their hearts and minds, that ... the
noblest office, in which man can be engaged, is the government of men, who are the
principal objects of the divine care.”
Grotius
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We must always consider the case if a given precept is not adhered to:
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- betray the white flag
- murder prisoners
- take hostages during a truce
- [use poison gas?]
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These are things that invite implacable hostility
The only choice for a country whose enemy abandons these principles is to fight as
bitterly as possible to the last.
Those who do not make war with a just peace in mind are the absolute enemies of
mankind.
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-- and with that, we move to the modern era in political thinking!
Grotius
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What’s new from Grotius?
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intends to work out the idea of “natural law” a) from what is prior to human will
b) to what is consequent on it
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The general situation is: a lot of people with
a) purposes of their own
b) wills of their own
c) varying powers to accomplish it
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Main principles:
property - founded upon first occupancy, including invention/creation of new things; then by
agreement
where individual property is impractical (e.g. the ocean)
for such we need common rights, as, of passage, to be respected by all
self-defence - including acts “necessary to provide whatever is essential to the existence
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or convenience of life.” - e.g. “physic, food and cloathing.”
rights granted to strangers are to be granted indifferently to all - no partiality
e.g. a monopoly granted to one nation requires that this nation allow others to buy
the products “at a reasonable price”
Grotius
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Peace is agreement
So, political analysis is concerned with rational terms of agreement among diverse
people
- references to “God” in Grotius’ work are
(a) used very sparingly
(b) attribute to “God” the very principles (liberal) that he is formulating
Assumes self-interest as legitimate
The project is to restrict self-interest when it leads to collision with others
So, great emphasis on explicit agreements and contracts
And on the reasonable interpretation of the terms of agreements
(esp. that they be understandable in common language)
“Humanity” to be kept in mind
[why? Because we are all human, and liable to the exigencies of our condition
His main general maxim: war is for the sake of peace
In general, the rules of war come from that maxim.