Hugo Grotius: Father of International Law Chap#5 Part2

 Hugo Grotius: Father of International Law

This commentator goes on to note that “behind the façade of so comprehensive as to render the major proposition almost the general disapproval of the right of resistance there laid qualifications retical.”

And indeed, Grotius adds that there is a right of resist laws of the state, abandons his responsibility or authority, undertance in those cases either where a ruler transgresses against the takes to place the state in subjugation, oversteps the authority granted him by the people, or shows himself the enemy of the people, or when the right to resist has been reserved by the people in the constitutional document.

 Certainly these reservations seem to render impotent the earlier prohibition against rebellion. Why then is Grotius at such pains to emphasize that even unjust laws must be obeyed, and that a bad rule is better than no rule at all?

There is. I believe, a better explanation for Grotius’s position than simply “it was required by the times.” Understanding his rationale on this topic provides us with a worthwhile insight into his enterprise as a whole. Recall that although Grotius takes his notion of natural law from Aquinas, he applies it in a manner that gives it relevance between nations as well as between individuals.

While Aquinas argues that all just human laws are derived from natural law, his first precept of natural law-do good and avoid evil-has little usefulness in terms of formulating specific rules of behavior and simply doesn’t make any sense at all when applied to abstract political entities.

Remember that Grotius argues that people’s natural disposition to abide by pacts is at the root of volitional laws, a form of consensual agreement between individuals. The same reasoning applies to international obligations that, although they obtain between states, are made by individuals. Because he has grounded positive law in the natural law precept that rational beings have a prima facie obligation to abide by pacts, Grotius must be very careful concerning the conditions whereby he justifies overriding this obligation.

He cannot permit disobedience to municipal law based on subjective assessments by individuals because exceptions that are operative between individuals in domestic society will have parallel applications in the international society of states. In fact, Aquinas’s advocacy of individual conscience as the final arbiter of right and wrong action would make international obligations a farce.

If Grotius is going to be successful in establishing legal constraints on sovereign nations based on their implicit consent as evidenced by customary practices, he cannot allow “the camel to get its nose under the tent” by permitting states the wherewithal to revoke their consent at will.

The only justifications for reneging on promises must be conflicts with other natural-law obligations. By insisting that individuals are always bound by municipal laws based on their consent and the universal obligation to keep pacts (except when such laws conflict with natural law), he has prepared the way to stipulate a like requirement for states.

This is a marvelous “compromise” by Grotius because he successfully grounds positive law in morality, as Aquinas advocates, without completely subordinating it to individual conscience. Still, he is able to leave the door open for civil disobedience based on the incompatibility of municipal laws with the principles of natural law-an outcome that legal systems based entirely on consent are unable to achieve.

The last point we need to address in our present discussion of law and morality concerns sanctions. Grotius argues that the law of to natural law “every man has the right to punish wrongdoers.” nature is a real law that has its sanction in force because according Notice that he does not assert that others have a duty to punish wrongdoers, only that it is permissible.

In municipalities the offices of preventing and punishing wrongdoers are specialized, and each individual’s right to undertake such action is restricted by volitional laws. In other words, only civil authorities may undertake to punish wrongdoers, and they have an obligation to do so.

We can readily see why this is so when we consider that the members of society at large have agreed to give up their individual right to punish wrong- doers with the stipulation that the state will do it for them. Agents of the state, therefore, hired for this purpose, have a duty to the members of their community to act in their behalf in apprehending and punishing wrongdoers.

Read: Hugo Grotius: Father of International Law

In places where there is no constituted authority “the old natural liberty remains, especially in places where there are no courts, as, for example, on the sea.” In the international society of states. Then, nations have a right to punish wrongdoers, but they do not have a duty to do so except in cases where they are so compelled because of treaty obligations.

Grotius grounds his conception of international law by drawing a domestic analogy to civil (municipal) law. The analogy fails to satisfy, however, because it is highly questionable that states have moral obligations to one another that are analogous to those that individuals have to one another in domestic society. We must wait until our discussion of international law to see how Grotius responds to this objection.

The Law of Nations

Besides the problem of sanctions, two additional difficulties con- fronted Grotius in developing a system of international law. First, he had to identify a core body of laws upon which to build a corpus juris. Grotius claims that nations do in fact observe implicit laws just as individuals in domestic society observe implicit laws as a matter of custom. He describes the laws between nations; jus intergentes, as follows:

The law which is broader in scope than municipal law is the law of nations; that is the law which has received its obligatory force from the will of all nations, or of many nations….

The proof for the law of nations is similar to that for unwritten municipal law; it is found in unbroken custom and the testimony of those who are skilled in it.

Grotius argues that one can determine the operative laws of nations through the analysis of past and present customs.

When many at different times, and in different places, affirm the same thing as certain, that ought to be referred to a universal cause; and this cause, in the lines of inquiry which we are following, must be either a correct conclusion drawn from the principles of nature, or common consent. The former points to the law of nature; the latter, to the law of nations.

Only a prodigy such as Grotius could be familiar with the incredible volume of records from past civilizations that he filters for moral practices and refines into principles. Because he found the wellsprings for his research in the civilizations of Ancient Greece and Rome, he appealed to national leaders who were themselves steeped in classical traditions. The laws of war that he devised rested on familiar precedents.

The second problem that confronted Grotius is the difficulty of anchoring laws between nations in a law of nature that concerns moral agents. Grotius recognizes that the proper domain for natural law is individual relationships within a society, but he also reclogs laws for the benefit of all. So the law of nations, as he conceives it. Nizes a society of nations wherein each member nation consents to is based almost entirely on consent (pactasunt servanda), rather than on natural law.

Just as reason dictates that individuals must follow certain principles if they are to maintain domestic society, so reason dictates that certain principles must regulate a society of independent states. In this way the laws of nations are similar to municipal laws in that they come into being through consent.

Just as the laws of each state have in view the advantage of that state, so by mutual consent it has become possible that certain laws should originate as between all states, or in a great many states; and it is apparent that the laws thus originating had in view the advantage, not of particular states, but of the great society of states. And this is what is called the law of nations.

Thus, Grotius is able to legitimize his enterprise by using a timeless, international co sensuality as his precedence. Consensus. however, can mean agreeing on the rule to be adopted, without necessarily agreeing on the reason for that rule-and in moral philosophy, the reason is everything. Rules grounded entirely in expediency will be followed only as long as following is expedient. Grotius must account for a lack of moral foundation in a legal system seemingly based on expediency.

Recall that Grotius’s account of domestic society stipulated that not only were some municipal laws derived from the law of nature but all municipal laws were affected by it because of man’s natural obligation to keep promises and abide by pacts.

Grotius risks misunderstanding when he uses the moral obligations inherent in interpersonal relationships as the basis for assuming that such obligations obtain in international relationships because of the fundamental dissimilarities between the subjects of law involved in each case: i.e., moral agents on one hand and abstract entities on the other.

The proposition that abstract entities can incur moral as well legal obligations vis-à-vis human beings or other abstract entities is highly controversial even today. It was simply a nonstarter in Grotius’s precorporate world, but if we reject natural law’s application to the international community, we deprive international law of moral force. A system of laws grounded only in consent (sans moral force) and recognizing no common constituting authority or force of sanction is likely to have little effect.36 Under such a formulation the only reason that a sovereign state would have for con- forming to a law would be that conforming was in its best interests.

And then, of course, there would be no need for law in the first place. Moreover, if international law is based solely on consent. then nations can withhold their consent or repudiate it whenever conditions change because there is no common authority to man- date compliance. To give international law normative force, one must link it to moral principles the same way Grotius links municipal law to human nature.

Grotius achieves this link by arguing that the same natural laws governing man’s relationships with his fellows also apply to relationships between states. This is not a domestic analogy argument where the state is considered as an individual “writ large.” Grotius regards the state as an expedient formed so that group functions may be delegated to individuals who act on the group’s behalf.

The moral principles that govern the individuals conducting national affairs apply to the relations that they establish between their states. And because it is always moral agents who make decisions and initiate actions on behalf of the constituents of a state (who are themselves moral agents), such actions must be governed by the natural laws inherent in man’s nature as a rational, social being.

People do not cease to be responsible moral agents because they act in an official capacity as agents of a state. Nor do the principles of natural law cease to apply when one “inter- acts” with an abstract entity representing an association of persons. Even though abstract entities are the subjects of international law. The responsibility for compliance, as well as the culpability for infractions, always rests with individuals. This understanding harkens back to Grotius’s earlier insistence that the laws of nature are binding on all people-monarch or Pope included.

A final point: This application of the principles of natural law to international law does not imply that municipal and international laws are similar in content. We should keep in mind that in most cases volitional laws-municipal and international-are expedients: their moral force is derived from the obligation to keep promises, not something inherently normative in the laws themselves.

In Chapter 7 we will return to the issue of sanctions and other difficulties for international law; for now, however, let us turn to Chapter 6 and examine the Just War principles that Grotius pro- poses.

Like: Chap#4 Secularization of the Just War Tradition | Part II