The idea that Hugo Grotius
was an apologist for tyranny and had erected “injustice into a system” was
advanced by Rousseau and Montesquieu, among other eighteenth century writers. "His
constant manner of reasoning," complained Rousseau, "is to establish right by fact. A more satisfactory
mode might be employed, but none more favorable to tyrants." The theme continues
to find expression in contemporary histories of political thought, as in the exposition of Montesquieu given by Mark Hulliung, or Richard Tuck’s several
explorations of Grotian doctrines, emphasizing the license that Grotius gave to offensive war. Here we want to take notice of the contrary
view of Hersch Lauterpacht, formerly Whewell Professor of International Law at
the University of Cambridge, in his once renowned but now forgotten essay on “The
Grotian Tradition in International Law.” The essay was published in 1946 and was written in the immediate aftermath of World War II and the establishment of the United Nations. It is an essay of rare power and
erudition, certainly one of the classics in the history of international thought, and one of the best critiques of realism extant.
Lauterpacht himself regarded the paper, a tiny portion of his vast output, as "probably the most important he ever wrote." There is a longstanding argument over how much of the "Grotian tradition" reflects Grotius, and how much Lauterpacht, but little argument among scholars that the paper is a classic. (Article length: 6700 words)
Grotius himself was a
prodigy, as famous as Erasmus, whose intellect traversed so wide a domain that
he himself is reported to have said, on the approach of his death (by shipwreck, in 1645),“By
undertaking many things I have accomplished little.” “The mysteries of the
doctrines of Atonement and Transubstantiation,” says Lauterpacht, “were more
real to him than the work on which his fame ultimately rested.” His dominant preoccupation
became biblical exegesis and criticism, carried out for the vital contemporary purpose of reconciling warring Protestants and Catholics.
Lauterpacht details
the criticisms assembled against Grotius, and concedes that many have merit. Of
these the most damning is the lack of clarity of his overall view. With some
exasperation, Lauterpacht recounts the difficulties:
The fact seems to be that on most
subjects which he discusses in his treatise it is impossible to say what is
Grotius’s view of the legal position. He will tell us, often with regard to the
same question, what is the law of nature, the law of nations, divine law,
Mosaic law, the law of the Gospel, Roman law, the law of charity, the
obligations of honour, or considerations of utility. But we often look in vain
for a statement as to what is the law
governing the matter. . . .With regard to the crucial aspect of his work,
namely, the law of war, it is often wellnigh impossible to elicit what is the
law on the subject. . . . The treatise abounds in laborious and elaborate
distinctions between diverse kinds of justice and various categories of law,
but it is not always clear what object these distinctions are intended to
serve. . . .[O]n the whole the various distinctions are unhelpful for the
purpose of discovering what is the legal rule on the subject. There is no
hierarchy of legal norms to assist the seeker after the correct rule of law.
There is often little to guide us as to whether in case of conflict the law of
nature (in its various and contradictory meanings) is to prevail over the law
of nations or conversely.
Lauterpacht also finds
fault with Grotius’s presentation of the laws of war, which was, “on the face
of it, vitiated by the abandonment of the main object which the author set
himself out to achieve.” Grotius observed in his Prolegomena that throughout the Christian world he had “observed
a lack of restraint in relation to war, such as even barbarous races should be
ashamed of,” and identified the humanization of war as the first among “many
and weighty reasons for undertaking to write upon this subject.” And yet his
concessions to existing practice, barbarous as it was, went far to elevating
such crudities into the law of nations. “The law of nations,” as Lauterpacht
summarizes some of these concessions,
gives the right to kill or injure
all those who are in the territory of the enemy. The same right is given with
regard to the subjects of the enemy wherever they may be found. Captives taken
in war may be killed. So can those who surrender but whose surrender is not
accepted. Water may be polluted, though not by poison. Both by the law of
nations and by the law of nature it is permissible to use assassins. In
general, by the law of nations anything is permissible as against an enemy.
Lauterpacht notes that
Gustavus Adolphus, King of Sweden, carried with him Grotius’s treatise as he
burned the countryside through which his armies passed in the Thirty Years War, for the purpose of
depriving his enemies of sustenance. It is not clear, Lauterpacht concludes
with some degree of angst, that Grotius’s interventions in the controversies
over jus in bello helped produce the
mitigation in the severities of war that occurred in the century after its
publication. (This judgment is in sharp contrast with the view of Henry Wheaton, writing almost exactly one hundred years before Lauterpacht and emphasizing Grotius's wholly benign influence.)
Despite various flaws
of “method and substance,” Grotius’s work achieved extraordinary fame and won a
reverent respect from the eminent authorities on international law in the
following century, including Pufendorf, Bynkershoeik, Wolff, and Vattel—“even
when, as often happens, they disagree with him.” Lauterpacht suggests a variety
of reasons for this—“the timeliness of the treatise, its comprehensiveness as
an exposition of international law, its wide jurisprudential background, and
the already consideration reputation of its author.” Of these factors, the
timeliness of the treatise deserves special note:
At the time that De Jure Belli ac Pacis was published the
historic process of the disintegration of European political society as
hitherto known and the rise of the territorial sovereign state were being
consummated. The Thirty Years War, which, to all appearances, was a war of
religion, actually began and continued as a war of secular claims and ambitions
of dynasties and nations. The rivalry between France and Spain had been a
problem of European politics for three centuries. It had been kept in check by
the overriding unity of religion. The Thirty Years War, when Catholic France
allied herself with the Protestant cause in opposition to the dynastic
ambitions of the Hapsburgs and when the Pope, for similar reasons, stood aloof
at a time of deadly peril for the Catholic party, showed clearly the
implications of the change. In a different sphere the demise of the feudal
system gave a new and higher significance of the territorial state. The need
for a system of law governing the relations of the independent states to
replace the legal and spiritual unity of Christendom had thus become urgently
obvious.
Ultimately, however,
the reason for Grotius’s fame is “that the principal and characteristic
features of De Jure Belli ac Pacis are
identical with the fundamental and persistent problems of international law and
that in nearly all of them the teaching of Grotius has become identified with
the progression of international law to a true system of law both in its legal
and in its ethical content.” Lauterpacht enumerates eleven ideas as fundamental
to the Grotian tradition:
the subjection of the totality of international
relations to the rule of law; the acceptance of the law of nature as an
independent source of international law; the affirmation of the social nature
of man as the basis of the law of nature; the recognition of the essential
identity of states and individuals; the rejection of ‘reason of State’; the
distinction between just and unjust war; the doctrine of qualified neutrality;
the binding force of promises; the fundamental rights and freedoms of the
individual; the idea of peace; and the tradition of idealism and progress.
The elaboration of
these fundamental principles in the Grotian tradition takes up some thirty
pages in Lauterpacht’s 25,000 word essay; I have tried to select those passages which
give the gist of his teaching.
1. The Subjection of the Totality of International Relations to the Rule
of Law. Modern international law recognized for a long time the existence
of gaps which obliterated altogether the border-line between law and
lawlessness in international relations. Of these gaps the admissibility of war
as an absolute right of states, requiring no other legal justification, is the
outstanding example. In laying down the distinction between just and unjust war
Grotius rejected the claim to any such right. . . .Although he did not achieve
the impressive solemnity of Suarez in the affirmation of the unity of mankind
and of the existence of a community of nations, he put the recognition of the
interdependence of states and of their subjection to law in the forefront of
the treatise.
3. The Affirmation of the Social Nature of Man as the Basis of the Law of
Nature. For Machiavelli and Hobbes man is essentially selfish, anti-social,
and unable to learn from experience; homo
homini lupus [man is a wolf to man] is the fundamental truth; human nature
does not change; pessimism as to the potentialities of its improvement is of
the essence of sanity; the basis of political obligation is interest pure and
simple; the idea of a sense of moral duty rising supreme over desire and
passion is a figment of imagination fatal alike to action and to survival. . .
.On that line of reasoning there is no salvation for humanity but irrevocable
subjection to an order of effective force which, while indifferent to the
dignity of man, yet contrives to prevent his life from being 'solitary, poor,
nasty, brutish, and short'. The approach of Grotius and—to mention a writer as
distinguished and as influential—Locke is diametrically different.
One of the salient characteristics
of De Jure Belli ac Pacis is not only
the frequency of the reliance on and appeal to the law of love, the law of
charity, of Christian duty, of honour, and of goodness, and to the injunctions
of divine law and the Gospel: the element of morality and the appeal to
morality are, without interfering decisively with the legal character of the
exposition, a constant theme of the treatise. An equally persistent feature is
Grotius's faith in the rational constitution of man and his capacity to see
reason and to learn from experience. This aspect of De Jure Belli ac Pacis goes a long way towards explaining the force
of the Grotian tradition in the international sphere. For there, more than
anywhere else, the implications of the pessimistic estimate of human nature
reveal themselves in all their paradoxical and depressing clarity. Writers and
statesmen dwell lucidly and persuasively upon the incongruity and absurdity of
the fact that modern civilized states live in a primitive state of nature in
their mutual relations. They admit that the resulting situation is such as to
threaten not only the rational growth of states but, in the age of scientific
weapons, their very existence. They concede that only effective submission to a
comprehensive rule of law and a corresponding curtailment of the sovereignty of
states may avert these dangers. But after having thus diagnosed the evil and
after having disclosed the remedy, they lay down the pessimistic proposition
that governments and peoples are unlikely to agree to any such solution. [By
contrast,] much of the appeal and potentialities of the Grotian tradition lies
in the lesson which can be drawn from his conception of the social nature and
constitution of man as a rational being in whom the element of moral obligation
and foresight asserts itself triumphantly over unbridled selfishness and
passion, both within the state and in the relations of states.
4. The Recognition of the Essential Identity of States and Individuals.
This analogy of states and individuals has proved a beneficent weapon in the
armoury of international progress. It is not the result of any anthropomorphic
or organic conception of the state as being—biologically, as it
were—assimilated to individuals, as being an individual person 'writ large'.
The analogy is much more simple, more direct, and more convincing. The
analogy—nay, the essential identity—of rules governing the conduct of states
and of individuals is not asserted for the reason that states are like individuals; it is due to the
fact that states are composed of individual human beings; it results from the
fact that behind the mystical, impersonal, and therefore necessarily
irresponsible personality of the metaphysical state there are the actual
subjects of rights and duties, namely, individual human beings. This is the
true meaning of the Grotian analogy of states and individuals. The individual
is the ultimate unit of all law, international and municipal, in the double
sense that the obligations of international law are ultimately addressed to him
and that the development, the well-being, and the dignity of the individual
human being are a matter of direct concern to international law.
5. The Rejection of ‘Reason of State’ [Although Grotius] does not
mention Machiavelli by name, he takes up the issue of 'reason of State' at the
very beginning of the treatise. After remarking upon the usefulness of a
knowledge of the law 'which is concerned with the mutual relations among states
or rulers of states',' he points to the special necessity of studying that
branch of law. For, he says, there are 'in our day' persons who view it with
contempt as having no reality; who consider that for a king or a state nothing
is unjust which is expedient; and that the business of the state cannot be
carried on without injustice. He sees an intimate connexion between the
rejection of the ideas of 'reason of State' and the affirmation of the legal
and moral unity of mankind. He insists that if no association of men can be
maintained without law, 'surely also that association which binds together the
human race, or binds many nations together, has need of law'. This means, he
says, quoting Cicero with approval, that shameful acts ought not to be
committed even for the sake of one's country. It means also that the hall-mark
of wisdom for a ruler is to take account not only of the good of the nation
committed to his care, but of the whole human race. 'The name of Minos became
odious to future ages for no other reason than this, that he limited his fair
dealing to the boundaries of his realm.' While denying that law is based on
expediency alone, he was ready to meet the theorists of 'reason of State' on the
ground of their own choosing, namely, that of advantage. He records the fact
that according to many the standards of justice applicable in the relations of
individuals within the state do not apply to a state or the ruler of a state.
The reason usually given for that assertion of the double standard of justice
is, he says, that law is indispensable to individuals who, taken singly, cannot
protect themselves, while great states, which dispose of everything needed for
adequate protection, are in no need of law. Grotius rejects this view. Such, in
his opinion, is the impact of economic interdependence or of military security
that there is no state so powerful that it can dispense with the help of
others.
Grotius's rejection of the ideas of
raison d'etat finds more direct
expression in relation to concrete issues. It expresses itself in the denial of
the right to resort to war unless in pursuance of a good legal cause; in the
rigid limitation of the right of self-defence (including the right of war in
order to ward off an anticipated attack); in the concession of the
right—indeed, in the injunction of the duty—of passive resistance against
orders and laws contrary to the law of nature and the law of God; in the
concession to the subject of the right—and, again, in the injunction of the
duty—to refrain from participation not only in unjust wars but also in wars the
justice of which is doubtful; in his
stressing of the sacredness of the principle pacta sunt servanda . . .
There is a symbolic significance in
this rejection of raison d'etat by
the founder of modern international law. For there is an inherent antagonism
between international law, which, except when conceived as an empty and contradictory
‘law of co-ordination’, means restraint upon freedom of action, and the idea of
reason of state, which means freedom from restraint. It would be mere
speculation to attempt to assess the influence of Grotius on curbing the
profane outlook which drew its inspiration from Machiavelli —just as it may be
difficult to estimate the actual impact of The
Prince upon the practices of international politics and diplomacy. It is
immaterial that the succeeding four centuries witnessed the unprecedented
ascendancy of the ideas of 'reason of State'. . . . . What is disquieting in
the matter is the continued fascination, in one form or another, in the science
of history and in the literature of international law, of the basic ideas of
'reason of State' and the apparent difficulty experienced by those who condemn
it to cut themselves adrift from it wholly and unequivocally . . .
The great issue of 'reason of
State' is still with us and, while it will continue to be an absorbing dilemma
of historical science, it is one of the main problems of international
law—perhaps the central problem if by law we understand restraint and if by
'reason of State' we mean rejection of any substantial restriction upon the
freedom of action of sovereign states in matters which matter. The 'raison d'etat' may no longer present
itself in the international sphere in the cruder forms of treacherous violence,
of brazen perfidy, and of outright deceit—although recent history has shown
that species of ratio status to be
not altogether obsolete. Modern formulae such as that international law is
possible only as a ‘law of co-ordination’ effected by agreement of sovereign
States express ideas of distinct affinity with those of 'reason of State'. For
there is probably more truth than exaggeration in the view that uncompromising
insistence upon the unlimited rights of state sovereignty in contempt of the
interests of other nations, of the interdependence of states, and of the public
opinion of the world, is one of the manifestations of the spirit of ruthless
egotism which has become associated with the idea of raison d'etat.' The claim of sovereign states—a claim fully
admitted by existing law—to be entitled to deny to other members of the
international legal community the benefit of judicial determination of disputed
legal rights belongs, essentially, to the same category. So does the
practice—reminiscent of the Machiavellian doctrine of the virtues of the
pretence of virtue—of cloaking the refusal to limit the state's full freedom of
action in the garb of pretentious phrases and purely nominal declarations
implying some such submission. So does the assertion, which is an attempt at a
rationalization of the existing practice, that the subjection of states to the
rule of law in the international sphere is and ought properly to be limited to
matters which are not 'political' and which do not affect their vital
interests.
6. The Distinction Between Just and Unjust Wars. It is not the dagger
or the poison of the hired assassin or the sharp practice of the realistic
politician which expresses most truly, upon final analysis, the ideas of 'raison d'etat'. It is the infliction,
without a shadow of a specific right and without a claim to any particular
right, of the calamities and indignities of war and of the territorial
mutilation and the very annihilation of statehood following upon defeat in war.
Prior to the changes introduced by the Covenant of the League of Nations, the
Pact of Paris of 1928, and the Charter of the United Nations, that central idea
of 'reason of State' formed part of
international law. States claimed—and had—the right to resort to war not only
in order to defend their legal rights but in order to destroy the legal rights
of other states. In the sphere of political theory Machiavelli put the position
with his usual terseness: ‘That war is just which is necessary.’ And he added,
by way of explanation: ‘The people will complain of a war made without reason.’
Bacon, who did more than anyone else to transplant the ideas of The Prince to English soil, and who
praised Machiavelli for seeing 'things as they are', expressed similar views in
holding that while a civil war is like the heat of a fever, a foreign war is
like the heat of exercise, and helps to keep the body in health. To this set of
ideas Hegel, Treitschke, and other nineteenth-century German theoreticians of
'reason of State' may have added the nebulous and arrogant pretentiousness of
philosophical jargon; in fact they added to it little.
But although this particular—and
most important—manifestation of `reason of State' became and for centuries continued
to be part of international law, it was not an unchallenged doctrine. It was
opposed by the parallel and powerful current of opinion that distinguished
between wars which, in law, were just and those which were not. That current of
opinion is represented by yet another aspect of the Grotian tradition, namely,
his denial of the absolute right of war and his consistent differentiation
between just and unjust wars. Grotius did not invent that distinction. It was
part of the heritage of the Middle Ages; it was fully discussed and adopted by
scholastic writers and other forerunners of Grotius. Saint Augustine elaborated
in detail the notion of a just war and limited it to action taken for the
punishment of wrong-doing and to restoration of property taken away. . . . In
the elaboration of the causes of just war Grotius made no obvious advance upon
the already elaborate treatment of the subject by his predecessors. The merit
of his own contribution lies in the clarity and in the emphasis with which he
treated the subject. For a war to be just there must exist a legal cause for
it—a reason which would be recognized by a court of law as a cause of action.
As he points out, war begins where judicial settlement ends. It follows that a
war undertaken to enforce a claim which 'is not an obligation from the point of
view of strict justice' is not a just war. He devotes an entire chapter to an
enumeration, by way of example, of various kinds of unjust war. On the other
hand, the causes of just wars are limited to defence against an injury either
actual or immediately threatening, to recovery of what is legally due, and to
inflicting punishment. He definitely excludes wars undertaken in order to
weaken a neighbour who is a potential threat to the security of the state. He
says, with regard to such a war, in a passage typical of the temper of the work
in its challenging rejection of raison
d'etat: 'That the possibility of being attacked confers the right to attack
is abhorrent to every principle of equity. Human life exists under such
conditions that complete security is never guaranteed to us. For protection
against uncertain fears we must rely on Divine Providence, and on a wariness
free from reproach, not on force.' He says in another part of the book: 'That
defence may be just, it must be necessary; and it cannot be this, except there
be clear evidence, not only of the power, but also of the animus of the party; and such evidence as amounts to moral certainty’.
By way of example he discusses the case of the justice —which he denies—of a
war undertaken against a neighbouring state on the ground that it engages in
building a fortress or fortifications which might prove a source of danger.
Against such apprehension, he says, the proper remedy is to build
counter-fortifications, not to resort to arms.' The relevant section of Book II—the
shortest paragraph in the treatise—consists of one sentence, significant and
impressive in its brevity, referring to the causes of war: 'Advantage does not
confer the same right as necessity.' He also denies that there is any question
of a justifiable war of defence in the case of those who deserved the war waged
against them. . . .
International law, in the three
centuries which followed De Jure Belli ac
Pacis, rejected the distinction between just and unjust wars. War became
the supreme right of sovereign states and the very hall-mark of their
sovereignty. To that extent international law was deprived of a reasonable
claim to be regarded as law in the accepted sense of the word. The law on the
subject has now undergone a fundamental change. War has ceased to be a supreme
prerogative of states. The Grotian distinction between just and unjust war is
once more part of positive international law. Factors more potent and more
irresistibly compelling than the influence of any single writer have had a
share in that achievement. Yet, among the imponderables which have worked in
that direction, the Grotian tradition occupies a high place. . . .
7. The Doctrine of Qualified Neutrality. It is theoretically possible
for international law to declare that some wars are illegal and criminal and
yet to lay down that the neutral states not involved in the war must act with
absolute detachment in relation both to the aggressor and to his victim. The
legal consistency of such a system of international law would be questionable;
its ethical impropriety would be obvious. In any case such a solution would not
have been in keeping with the spirit of De
Jure Belli ac Pacis. Grotius's view on the subject is expressed tersely in
the brief chapter on neutrality entitled 'On those who are of neither side in
war'. He says: 'It is the duty of those who keep out of war to do nothing
whereby he who supports a wicked cause may be rendered more powerful, or
whereby the movements of him who wages an unjust war may be hampered.' It will
be noted that these duties do not include the positive obligation to assist
actively the state waging a just war. But they clearly imply a right to do so.
. . . The doctrine of qualified
neutrality was rejected in the nineteenth century —with perfect logical consistency—by
the overwhelming majority of writers. If every war is, in law, just, then
neutrality must be an attitude of absolute impartiality. Occasionally writers
of authority expressed their disapproval of neutrality thus conceived as being
morally intolerable. But that denunciation of neutrality was in fact a
condemnation of a system of international law, fully in operation at that time,
in which resort to war was an unlimited right of sovereign states.
9. The Fundamental Rights and Freedoms of the Individual. There is one perplexing aspect of the work of
Grotius which appears to be alien to the spirit of his teaching as outlined so
far and which calls for careful examination, namely, his attitude to the
question of the freedom of the individual in his relation to constituted
authority. . . . Grotius justified slavery and claimed to have found support
for it in the immutable canons of the law of nature. He rejected the idea of
the sovereignty of the people. He denied the right of resistance to oppression
by the ruler. He did not see why, if an individual can voluntarily sell himself
into slavery, a whole people should not be able to do so collectively. He
attributed an irrevocable legal effect not only to collective voluntary
submission, but also to conquest. He completed this chain of reasoning by
including in his examples of unjust wars a contest waged by an oppressed people
in order to regain its liberty. . . . What is the explanation of these views,
so foreign to the spirit of his teaching and to his personal condition? [The
key explanation is that] this frowning upon rebellion and the favouring of
authority were in accordance with what were considered to be the essential
needs of the times. The horrors of civil war were foremost in the minds of
political thinkers. There was not, in this respect, much difference between
Hobbes and Bacon on the one side, and Hooker, Gentilis, and Bodin on the other.
They discussed in detail the right of resistance; they all rejected it. So,
perhaps with less justification, did Pufendorf. At a time of general
uncertainty and of loosening of traditional ties of society, national and
international, order was looked upon as the paramount dictate of reason. . . . Considerations
of this order must have weighed heavily with one in whose work the desire for
peace was the dominant motive and the ever-recurring theme. This particular
feature of Grotius's outlook appears clearly from his unheroic advice given to
defeated peoples to yield to fate rather than to engage in a suicidal fight for
liberty, for, he says, reason prefers life to freedom. Strange as it may sound,
his attitude towards slavery was to a large extent determined by humanitarian
considerations. Enslavement of those captured in war was an alternative
preferable to the unlimited power, including the right to kill, which, in his
view, the customary law of nations and, probably, the law of nature gave to the
captor. His treatment of the institution of slavery is permeated throughout by
a spirit of charity and mercy.
What is more important than these
explanations is the fact that behind the façade of the general disapproval of
the right of resistance there lay qualifications so comprehensive as to render
the major proposition almost theoretical. Thus, according to Grotius, there is
a right of resistance in cases in which the ruler, by virtue of an original or
subsequent contract, is responsible to a free people (as was the case in
Sparta); against a king who has renounced his authority or has manifestly
abandoned it; who attempts to alienate his kingdom (but only so far as is
necessary to prevent the transfer); who openly shows himself the enemy of the
whole people —an elastic and formidable exception; who attempts to usurp that
part of the sovereign power which does not belong to him; and, finally, where
the people have reserved the right of resistance in certain cases. These
exceptions as laid down by Grotius were relied upon as an authority for the
justification of the resistance to and deposition of James II. If Rousseau had
concentrated on the reality of these exceptions rather than on the appearance
of the general proposition he would have found less reason for vituperation. It
is unlikely that one or more of these exceptions did not recall to the mind of
the reader the various articles of the Dutch Act of Abjuration against Philip
of Spain.
Finally, in this connexion we must
bear in mind other indications of Grotius's true attitude. Thus it is
significant that, notwithstanding his reluctance to sanction recourse to war,
he considers as just resort to war to prevent the maltreatment by a state of
its own subjects. In such cases, he says, if a ruler 'should inflict upon his
subjects such treatment as no one is warranted in inflicting, the exercise of
the right vested in human society is not precluded'. This is, on the face of
it, a somewhat startling rule, for it may not be easy to see why he permits a
foreign state to intervene, through war, on behalf of the oppressed while he
denies to the persecuted themselves the right of resistance. Part of the answer
is, perhaps, that he held such wars of intervention to be permitted only in
extreme cases which coincide largely with those in which the king reveals
himself as an enemy of his people and in which resistance is permitted.
However that may be, this is the
first authoritative statement of the principle of humanitarian intervention—the principle that
the exclusiveness of domestic jurisdiction stops where outrage upon humanity
begins. The doctrine of humanitarian intervention has never become a fully acknowledged
part of positive international law. But it has provided a signpost and a
warning. It has been occasionally acted upon, and it was one of the factors
which paved the way for the provisions of the Charter of the United Nations
relating to fundamental human rights and freedoms. In that development the
teaching of Grotius has some share. . . .
10. The Idea of Peace. The tenth—and not the least important—aspect of the
Grotian tradition is his pacifism. He does not deny that war is a legal
institution. On the contrary, he is at pains to show that war is not
inconsistent with the law of nature and with many other kinds of law. There
were good reasons—in addition to the recognition of a patent fact—for this
initial legitimation of war. It would not be feasible to attempt to introduce a
measure of legal regulation into a relation not recognized by law. A
corresponding method suggested itself—and was adopted—with regard to the
contents of the rules of warfare. Thus Grotius's treatment of the laws of war
seems to be open to the charge that, after setting out to humanize rules of
war, he gives the imprimatur of law to rules of pronounced inhumanity. His
answer to any such criticism would probably have been that the proper course
was not to deny the character of law to practices which apparently had secured
a wide degree of acceptance, but to urge a mitigation of their rigours. . . .
In general, there breathes from the
pages of De Jure Belli ac Pacis a
disapproval, amounting to hatred, of war. There is nothing in that work
reminiscent of the Baconian conception of war as a healthy exercise. Grotius is
clear that where the question of legal right is doubtful, a state ought to
refrain from war. He proposes various methods of settling disputes, including
negotiation and arbitrations. He suggests that 'it would be advantageous,
indeed in a degree necessary, to hold certain conferences of Christian powers,
where those who have no interest at stake may settle the disputes of others,
and where, in fact, steps may be taken to compel parties to accept peace on
fair terms'. He devotes a whole chapter to 'warnings not to undertake war
rashly, even for just causes'. Elsewhere, he distinguishes between justifiable
wars, namely, those for which there is a true legal cause, and those in which
the law is but a pretext. These latter he describes simply as wars of robbers. .
. .
These intrusions of opportunism and
realism did not decisively influence the character of De Jure Belli ac Pacis. But they are symbolic of the perennial
problem with which the science of international law has been confronted almost
from the outset. It has been exposed to the inducement to supply a
rationalization of inferior and irrational practices; to confuse, in the name
of realism, the function of chronicling events with that of a critical
exposition of rules of conduct worthy of the name of law; to furnish a
philosophy of the second best; and to represent the transient manifestations of
immaturity and anarchy in international relations as resulting necessarily and
permanently from the nature of states the mutual relations of which, it is
said, may be regulated by voluntary co-operation but not by a rule of law
imposed and enforced from above. Grotius did not succumb to that tendency. This
fact explains much of the influence which he has wielded. For, in the history
of political ideas and human progress, it will be found that the attraction of
the short cuts of sound realism is matched—and surpassed—by the appeal to faith
and to principle. . . .
Grotius did not create
international law. Law is not made by writers. What Grotius did was to endow
international law with unprecedented dignity and authority by making it part
not only of a general system of jurisprudence but also of a universal moral code.
To many, indeed, it may appear that De
Jure Belli ac Pacis is more a system of ethics applied to states than a
system of law. This would not inevitably imply a condemnation of the work. For
it may be held that at that time—as, indeed, at any time—it was important that
the relations of states should be conceived and taught as part of ethics as
well as part of law. Grotius’s great merit is that he performed both tasks in
one work.
For more on Lauterpacht, see the biography by his son, Elihu Lauterpacht, The Life of Hersch Lauterpacht, released as a paperback by Cambridge University Press in November 2012. Lauterpacht, as the book details, "was one of the most prolific and influential international lawyers of the first half of the twentieth century. Having come to England from Austria in the early 1920s, he first researched and taught at the London School of Economics before moving to Cambridge in 1937 to become Whewell Professor of International Law. He did valuable work to enhance relations with the United States during the Second World War, and was active after the war in the prosecution of William Joyce and the major Nazi war criminals. For ten years he was also involved in various significant items of professional work and in 1955 he was elected a judge of the International Court of Justice."
