Commentary:The Rational Basis of International Law

By: The FHE Team

Grotius was born in Delft. In 1618, he found himself on the wrong side of a religious dispute and was condemned to life imprisonment. He was to escape however, and was to find refuge in Paris in 1621, and, indeed, was to receive a pension from Louis XIII. In 1625, Grotius was to bring out his legal masterpiece, De Jure Belli et Pacis (On the Law of War and Peace); it is considered to be the first great contribution to modern international law. In this work Grotius asserted that the answer to getting over individualistic laws, which vary from country to country, was to resort to natural law. He struck upon the notion of social contract (Grotius’ work was in turn picked up in England by Hobbes and Locke) thinking that this be the rational basis for rational principles that would guide nations to adopting a proper system of laws. His work is included here because of its foundational nature and as food for thought: will the natural order of politics become more dominate as super-natural technological advances increase?

Original Work by Hugo Grotius

The civil law, both that of Rome and that of each nation in particular, has been treated of by many, with a view either to elucidate it, through commentaries, or to present it in a compendious form. But that law which regards the relations between peoples, or between rulers of peoples, whether it proceed from nature or be instituted by divine commands or introduced by custom and tacit agreement, has been touched on by few, and has by no one been treated as a whole and in an orderly manner. And yet that this be done is of concern to the human race.

And such a work is the more necessary because of the fact that persons in our time, as well as in former ages, have held in contempt what has been done in this province of jurisprudence, as if no such thing existed, as a mere name. Every one is familiar with the saying of Euphemiys in Thucydides, that for a king or city who has authority to maintain, nothing is unjust which is useful; and to the same effect is the saying that with good fortune equity is where strength is, and that the commonwealth cannot be administered without doing some wrong. To this we add that the controversies which arise between peoples and between kings commonly have war as their arbiter. But that war has nothing to do with laws is not only the opinion of the ignorant; even wise and learned men often let fall expressions which support such an opinion. For nothing is more common than to place laws and arms in opposition to each other. . . .

Since our discussion of law is undertaken in vain if there is no law, it will serve both to commend and fortify our work if we refute briefly this very grave error. And that we may not have to deal with a mob of opponents, let us appoint an advocate to speak for them. And whom can we select fitter than Carneades, who had arrived at the point — the supreme aim of his academic philosophy — where he could use the strength of his eloquence for falsehood as easily as for truth? When he undertook to argue against justice — especially, the justice of which we here treat, he found no argument stronger than this: that men had, as utility prompted, established laws, differing among different peoples as manners differed, and, among the same people, often changing with the change of times; but that there is no natural law, since all men, as well as other animals, are impelled by nature to seek their own advantage; and that either there is no justice, or if it exist, it is the highest folly since through it one harms oneself in consulting the interests of others.

But what this philosopher says, and, following him, the poet — Nature cannot distinguish the just from the unjust,” must by no means be admitted. For though man is indeed an animal, he is an uncommon animal, differing much more from all other animals than they differ from one another; this is evidenced in many actions peculiar to the human species. Among the attributes peculiar to man is the desire for society — that is for communion with his fellowmen, and not for communion simply, but for a tranquil association and one suited to the quality of his intellect; this the Stoics called Oykeiosin. Therefore, the statement that by nature every animal is impelled to seek only its own advantage cannot be conceded in this general form.

Even in other animals their desires for their own good are tempered by regard for their offspring and for others of their species; this we believe to proceed from some intelligence outside of themselves; for with regard to other acts not at all more difficult than these an equal degree of intelligence does not appear. The same is to be said of infants, in whom, previous to all teaching, there is manifested a certain disposition to do good to others, as is sagaciously remarked by Plutarch; for example, at that age compassion breaks forth spontaneously. A man of full age knows how to act similarly in similar cases, and he has exceptional craving for society, whose peculiar instrument, language, he alone among all animals possesses; accordingly, he has the faculty of knowing and acting according to general principles; the tendencies which agree with this faculty do not belong to all animals, but are the peculiar properties of human nature.

This concern for society, which we have now stated in a rude manner, and which is in agreement with the nature of the human intellect, is the source of law, properly so called, of which we are speaking. It is law that determines the abstention from another’s property; the restitution of another’s goods which we have in our possession and of any gain we have derived from such possession; the obligation to fulfill promises; the reparation for damage wrongfully done; and the retribution of punishments.

From this signification of law there has flowed another larger meaning. For man is superior to other animals not only in the social impulse, of which we have spoken, but also in his judgment in estimating what is pleasant and what is injurious — not only for the present but for the future also, and the things which may lead to good or to ill. We know, therefore, that, in accordance with the quality of the human intellect, it is congruous to human nature to follow, in such matters, a judgment rightly formed and not to be misled by fear or by the enticement of present pleasure, or to be carried away by heedless impulse; and that what is plainly repugnant to such judgment is likewise contrary to natural law, that is, to natural human law.

And here comes the question of a wise assignment in bestowing upon each individual and each body of men the things which peculiarly belong to them; this disposition will sometimes prefer the wiser man to the less wise, the neighbor to a stranger, the poor man to the rich man, according as the nature of each act and each matter requires. This question some have made a part of law, strictly and properly so called; though law, properly speaking, has a very different nature; for it consists in this — that each should leave to another what is his and give to him what is his due.

What we have said would still be in point even if we should grant, what we cannot without great wickedness, that there is no God, or that He bestows no regard upon human affairs. Since we are assured of the contrary, partly by our reason and partly by constant tradition, confirmed by many arguments and by miracles attested by all ages, it follows that God, as our creator to whom we owe our being and all that we have, is to be obeyed by us without exception, especially since He has in many ways shown himself to be supremely good and supremely powerful. Wherefore, He is able to bestow upon those who obey Him the highest rewards, even eternal rewards, since He himself is eternal; and He must be believed to be willing to do this, particularly if He has promised to do so in plain words; and this we as Christians believe, convinced by the indubitable faith of testimonies.

And here we find another origin of law, besides that natural source of which we have spoken; it is the free will of God, to which our reason indisputably tells us we must submit ourselves. But even natural law — whether it be the natural social law, or law in the looser meaning of which we have spoken — may yet be rightfully ascribed to God, though it proceed from the principles of man’s inner nature; for it was in accordance with His will that such principles came to exist within us. In this sense Chrysippus and the Stoics said that the origin of law was not to be sought in any other source than Jove himself; and it may be conjectured that the Latins took the word jus from the name Jove.

It may be added that God has made these principles more manifest by the commandments which He has given in order that they might be understood by those whose minds have weaker powers of reasoning. And He has controlled the aberrations of our impulses, which drive us this way and that, to the injury of ourselves and of others; bridling our more vehement passions, and restraining them within due limits.

In the next place, since it is conformable to natural law to observe compacts (for some mode of obliging themselves was necessary among men, and no other natural mode can be imagined) civil rights were derived from that very source. For those who joined any community, or put themselves in subjection to any man or men, either expressly promised or from the nature of the case must have been understood to promise tacitly, that they would conform to that which either the majority of the community, or those whom power was assigned, should determine.

And therefore what Carneades said, and what has been said by others — that utility is the mother of justice and right — is, if we are to speak accurately, not true. For the mother of natural law is human nature itself, which would lead us to desire mutual society even though we were driven thereto by other wants. The mother of civil law is obligation by compact; and since compacts derive their force from natural law, nature may be said to be the great-grandmother of civil law. But utility supplements (accedit) natural law. For the Author of nature ordained that we, as individuals, should be weak and in need of many things for living well, in order that we might be the more impelled to cherish society. But utility furnished the occasion for civil law; for that association or subjection of which we have spoken, was at the first instituted for the sake of some utility. Accordingly, those who prescribe for others ordinarily design, or should design, some utility in their laws.

But just as the laws of each state regard the utility of that state, so also between all states, or, at least, between most of them, certain laws could be established by consent — and it appears that laws have been established — which regard the utility, not of particular communities but of the great aggregate of communities. And this is what is called the law of nations (jus gentium), in so far as we distinguish it from natural law. This part of law is omitted by Carneades, who divides all law into natural law and the civil law of particular peoples; although as he was about to treat of that law which obtains between one people and another (for he subjoins a discussion upon war and acquisitions by war), he was especially called upon to make mention of law of this kind.

Moreover, Carneades improperly traduces justice when he calls it folly. For since, as he himself acknowledges, the citizen is not foolish who in a state obeys the civil law, although in consequence of such respect for the law he may lose some things which are useful to him, so too a people is not to be deemed foolish which does not estimate its interests so highly as to disregard the common laws between peoples for the sake of its own advantage. The reason is the same m both cases. For as a citizen who disobeys the civil law for the sake of present utility destroys that in which the perpetual utility of himself and his posterity is bound up, so too a people which violates the laws of nature and of nations breaks down the bulwark of its own tranquillity for future time. Even though no utility were to be looked on from the observation of law, such a course would be one not of folly but of wisdom, to which we feel ourselves drawn by nature.

Wherefore, that saying that we were compelled to establish laws from fear of wrong, is not universally true; this opinion is explained by a speaker in Plato’s dialogues, who says that laws were introduced because of the fear of receiving wrong, and that men are driven to respect justice by a certain compulsion. But this applies only to those institutions and statutes which were devised for the more easy enforcement of law; as when many, individually weak, fearing oppression by those who were stronger, combined to establish judicial authorities and to protect them by their common strength, so that those whom they could not resist singly, they might, united, control. Only in this sense may we properly accept the statement that law is that which pleases the stronger party: namely, that we are to understand that law does not attain its external end unless it has force as its servant. Thus Solon accomplished great things, as he himself said, by linking together force and law.

But even law that is unsupported by force is not destitute of all effect; for justice brings serenity to the conscience, while injustice brings torments and remorse such as Plato describes as afflicting the hearts of tyrants. The common feeling of upright men approves justice and condemns injustice. The important point is that justice has for its friend, God, while injustice has Him as an enemy; He reserves his judgments for another life, yet in such manner that He often exhibits their power in this life; we have many examples of this in history.

The error which many commit who, while they require justice in citizens, hold it to be superfluous in a people or the ruler of a people, is caused primarily by this fact: they are regarding only the utility which arises from the law. This utility is evident in the case of citizens, who individually are too weak to secure their own protection. Great states, on the other hand, which seem to embrace within themselves all that is necessary to support life, do not appear to have need of that virtue which regards extraneous parties and is called justice.

But — not to repeat what I have already said, that law is not established for the sake of utility alone — there is no state so strong that it may not at some time need the aid of others external to itself, either in the way of commerce or in order to repel the force of many nations combined against it. Hence we see that alliances are sought even by the most powerful peoples and kings; the force of such alliances is entirely destroyed by those who confine law within the boundaries of a state. It is most true that everything becomes uncertain if we withdraw from law.

Since, for the reasons which I have stated, I hold it to be completely proved that there is between nations a common law which is of force with respect to war and in war, I have had many and grave reasons why I should write a work on that subject. For I saw prevailing throughout the Christian world a license in making war of which even barbarous nations would have been ashamed, recourse being had to arms for slight reasons or for no reason; and when arms were once taken up, all reverence for divine and human law was lost, just as men were henceforth authorized to commit all crimes without restraint.

It remains now that I briefly explain with what aids and with what care I have undertaken this work. In the first place, it was my object to refer to the truth of the things which belong to natural law to certain notions so certain that no one can deny them without doing violence to his own nature. For the principles of that law, if you attend to them rightly, are of themselves patent and evident almost in the same way as things which we perceive by our external senses; for these do not deceive us, if the organs are rightly disposed and other necessary things are not wanting.

For the demonstration of natural law I have used the testimonies of philosophers, historians, poets, and finally orators. Not that these are to be trusted indiscriminately; for they are ordinarily writing to serve their sect, their argument, or their cause. But when many, writing in different times and places, affirm the same thing as true, their unanimity must be referred to some universal cause, which, in the questions with which we are here concerned, can be no other than either a right deduction proceeding from principles of nature, or some common agreement. The former cause points to the law of nature, the latter to the law of nations; the difference between these two is to be discerned not in the testimonies themselves (for writers everywhere confound the law of nature and the law of nations), but in the quality of the matter. For what can not be deduced from certain principles by unerring reasoning, and yet is seen to be observed everywhere, must have its origin in free consent.

Passages of history have a twofold use in our argument: they supply both examples and judgments. In proportion as examples belong to better times and better nations, they have greater authority; we have therefore preferred the examples from ancient Greece and Rome. Nor are judgments to be despised, especially when many of them agree; for natural law is, as we have said, to be proved by such concord; and the law of nations can be proved in no other manner.

The opinions of poets and orators have not so much weight; and these we often use not so much to gain confirmation from them as to give to what we are trying to say some ornamentation from their modes of expression.

The books written by men inspired by God, or approved by them, I often use as authority, with a distinction between the Old and the New Testament.