Saturday, March 10, 2012


Regular readers of Adrian McKinty's blog--and I know you're out there, because I have latched on to more than a few of you through that very source--may recognize this word. Lawyers almost certainly will, as will some others whose reading is both wide and deep, a category which I haven't managed to fall into just yet.

The trajectory over at Psychopathology of Everyday Life typically goes something like this. Adrian mentions something or someone and that something or someone for some reason reminds him of Christopher Hitchens, whose mind and body of work he generally admires. Then a commenter will express dismay at the appropriateness of Hitchens as any kind of hero due to his position on the Iraq war. (Sometimes that commenter has been me.) Then someone else will describe the U.S.'s entry into war in Iraq as a war crime and Adrian will disagree. At some point or another, he will cite Grotius and challenge his dissenters to read the relevant passages, knowing that few, if any, ever will.

I will get to who Grotius was and what his contribution to such discussions were in a moment, but I thought I'd start out by explaining what my own particular interest in this is. The reason dissenters won't read Grotius is not, I think, laziness, or a fit of pique, but that they dismiss Grotius on the grounds of relevance, and relevance to the concerns of the 21st century particularly. Americans, at least, seem to have the sense that not only time but geography make it impossible that Grotius could have anything to say to our condition.

Now this kind of thinking is a bugaboo of mine. I come across this in liberal Santa Cruz, a demographic I am largely at one with,  in relation to reading any sort of biblical text, despite the fact that the Bible has been part and parcel of Western Civilization for the last 2000 years or so. Whatever else it is, it is a treasure trove of Western myth and folklore.  Regardless of your orientation towards its spiritual propositions, it behooves you to know what it says.

Similarly, with this whole Grotius disdain, it seems to me to be a real ignorance of how a legal system comes about, and lack of understanding of how our contemporary law is founded on earlier thought and not just magically made up on the spot. There is the same kind of condescension toward the past that I find in my anti-religionist counterparts. I'm not a lawyer, and I am not a huge cheerleader for the law as it stands, either, but the idea that my own immediate reaction to a given situation is somehow intrinsically better than that of one of the great jurists of the past, who has mulled the thing over far more than I have, seems fairly ludicrous.

Which brings us to Grotius. Who he?

Hugo Grotius, aka, Huig de Groot, Hugo Grocio or Hugo de Groot was a Dutch jurist of the early seventeenth century. This was far from all he was. Like other multitalented types of his era, he was also a poet and playwright and as a theologian provided some of the basis for both the Methodist and Pentecostal movements. But our main interest in him here is his profound effect on the foundations of international law, and in particular, in his major work De jure belli ac pacis, or On the Law of War and Peace: Three books.

Grotius wasn't living in the fabled ivory tower of academia when he wrote this work. He started it while imprisoned for his religious beliefs and continued it while in exile in Paris (his escape from life imprisonment involved being smuggled out in a book chest). He was alive during the period of not only the 80 Years War between the Netherlands and Spain, but also the 30 Years War between the Catholic and Protestant nations of Europe. Although he tries to posit the circumstances of a "just war", his intent is actually an effort to constrain the forces of war that he witnessed in his time.

As Steven Forde has it in what looks to be a very good article on Grotius--I can't access the whole thing because I don't have user's rights over at JSTOR--

"We must always remember that Grotius's search for a middle path between realism and idealism is motivated by an essentially moral concern. His desire is for an effective set of moral restraints on states."

As to his pertinence for us today, well, for two centuries after the publication of The Law and War and Peace, Grotius was considered authoritative, according to Forde, but then his reputation suffered a great decline, "due to the rise of positivism in international law and the disfavor of natural law thinking in moral philosophy." But Grotius is on the rise again today because the things he was puzzling over are, as Forde has it, "permanent problems of foreign policy and ethics".  His effort to find a middle way is as important to our understanding of conflict as it was his.

Have I gotten around to reading the 350+ pages of The Law of War and Peace?

Uh, no. Not yet--but you can find it HERE ... or, broken down into more digestible parts, HERE .


  1. Very cool! And, uh, thanks for the link....!

  2. The text is actually interesting to read from my brief perusal of it. I'm going to edit my post to add a link to shorter more managale portions of the book.

    It's not that everyone has to read Grotius. It's that if you're going to start arguing about international law, you would be wise to have this one under your belt.

  3. Seana

    Where laws come from is a very curious, circular process. We all know that Congress makes the law but where is the law that says we have to obey Congress? Well that's the Constitution, but where's the law that says we have to obey the Constitution? Well the Constitution was ratified by the assemblies of the original 13 states. Where's the law that says that we should obey those assemblies or accept what they did 230 years ago as being valid now? At some point you basically have to stop asking why and admit that the Grundnorm (theres another word for you) is an axiom that you just have to have faith in.

    As mysterious as law is, international law is even more mysterious. Some people say that in fact there's no such thing as international law at all. Its been my experience that when someone says that such and such an act was illegal under international law the person saying this has no idea what they are talking about. What they actually mean is that a certain sovereign power violated a treaty obligation with another sovereign.

  4. Grundnorm, huh? I was still struggling with my ignorance about positivism.

    I think having to go back and justify things by referring to the Constitution probably goes against certain elements of the American personality. But as someone who lived, as Grotius did, in a situation of constant turmoil, might say, structure and precedent are more peaceable than non-structure for human social life.

    The thing I always find funny about people rushing to say some U.S. action is illegal is that the higher realms of government is teeming with lawyers. So I'd assume that the first thing they'd do is find the legal pretext for doing whatever dastardly thing they have in mind.

  5. Who was the first to formulate a theory and try to formulate codes of conduct for relations among states?

  6. I would maybe have said Machiavelli, but here is a list of those who may have influenced him.