Guide The Etiamsi Daremus of Hugo Grotius: A Study in the Origins of International Law

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Hobbes' Leviathan, freed from the ethical restraints of universal principles, becomes the sole bearer of power and the sole source of law. This philosophy, made possible by the philosophic ruminations on a "state of nature" in which men are in a constant state of war against one another, and which hence required the emergence of an awe-inspiring power whose task was the maintenance of a troubled peace in a passion-filled order, parted company with previous universalist, both Catholic and pagan, philosophies and metaphysics.

Man and society, in order to survive, only required a robust and over-powering authority in a world marked by moral poverty. As opposed to such natural law theories that define man in pessimistic terms, the optimistic conception of man embodied in Vitoria's Thomist iusnaturalism and the teleological dimension connected to man's ontological status is posed as a point of departure for understanding the ends of society and the function and purpose of political authority. The human ability to reason is the primary indication of man's status in society.

It implies the essential equality and dignity of all humans and, in doing so, defines the limits of political power in the relationship between political authority and the individual. In that relationship, the role of the state is to foster human flourishing individually and collectively. Men, indeed, must obey the state and its laws but those laws cannot be set against the individual; they cannot be rational if they are oriented toward his injury.

Hugo Grotius

The integration of individuals into a wider community, moreover, does not imply the annihilation of their individuality; the value of the whole does not diminish the value of its parts. This is necessarily the case because, in this view, the ends of the individual and of the state are substantially the same. The role of the state, in this view, is closely linked to the idea of the common good and individual human flourishing; and the common good itself, from the perspective of civil society, is substantially linked to the maintenance of justice.

The state may not thus legitimately enact laws that foster the destruction or degradation of human life, nor may it exempt itself from following the laws of nature and the principles of justice that are inherent in it. However, when this is the case, when justice as a pattern for the ordering of political and social life is abandoned, natural law may assume a critical function. Neumann summarizes this aspect of natural law in the following manner:.

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If every doctrine of Natural Law is based upon man as an individual, either autonomous or subject to the lawfulness of external nature, then man must be considered as a rational individual. That in turn implies the recognition of the essential equality of human beings. And this again leads to the universality of the Natural Law doctrine which is the central view common to all doctrines. It also follows that no theory of Natural Law can accept facts as they are and because they are. Natural law is thus fundamentally opposed to traditionalism and historicism. Each human institution is open to critical reason, none is exempt from it.

Neumann While indeed it is generally agreed that Thomist natural law is an essentially conservative doctrine, "a kind of codification of the feudal order" that does not assume revolutionary overtones, as Neumann and others have held, this assertion focuses on merely one facet of the doctrine. Following Gierke on this matter, Neumann further maintains:. To see Thomism as a kind of ideology intended to cover feudal exploitation with the cloak of an eternally valid law is to present but one aspect of the system [ Thus, despite the apparently conservative character of Thomism generally speaking, it is nonetheless true and herein lay the value of Vitoria and the School of Salamanca that its tenets well served the intentions of the Spanish theologians when attempting to find a more secular basis for defining the nature of international community, especially when considering the status of non-Christian peoples.

The intellectual resources necessary for this task where already present in Aquinas. Augustine's conception of the pagan state as the embodiment of the civitas terrena, and the work of sin" ibd. What Aquinas and Vitoria achieved was a clear distinction between the spiritual and temporal orders. This view of public and private authority as having a natural law basis, if extended to the realm of inter-state relations, meant that the principles of the just war doctrine pertaining to conflicts between Christian states could be equally applied to the relations between Christian and non-Christians cf Truyol y Serra This decisive view made possible the conception of a universal international juridical order valid for all human societies, and became the framework from which Vitoria outlined his internationalist outlook.

That very internationalist view meant that the prior medieval notion of an orbis christianus had been wholly supplanted by a communitas orbis predicated upon the principles of natural right cf Belda Plans This "natural" conception of a world community stemming from the same Thomist natural law theory of political society provided Vitoria with the elements necessary not only to establish an early structure of a fully secular international law more systematically developed by later thinkers e. Gentili and Grotius , but also to deploy the notion of natural right as a critical tool limiting the exercise of Spanish power in the New World.

Here again the entire basis of such assertions is the natural law view of the rational character of man. If men are essentially equal by virtue of their capacity of reason, and if they can create societies that rationally enact just laws, then their societies, in their mutual relations and bound by the principles of natural and positive justice, are juridically equal as well cf Truyol y Sierra This notion of equality and justice based on a prior notion of man allowed Vitoria to maintain that neither Imperial nor Papal authority could exercise jurisdiction over the Indies nor could these communities be deprived of their resources or goods, for the latter by natural right, Vitoria had argued, exercised true dominion over their communities.

It was only on grounds of violations of justice that limited intervention could be exercised. Thus, what began as an ostensibly conservative medieval doctrine was transformed by Vitoria into a critical tool with a constitutional function that defined and limited the exercise of power in accordance with the Thomist conception of justice and natural right. Truyol has similarly argued,. When his nation reached the peak of its power, Vitoria sought to confound the temptations of power thus proclaiming its subservience to moral law [ Truyol y Sierra 20 In the arena of international politics, this meant developing a robust system of authoritative ethical and legal constraints to which states could theoretically be subjected.

In this sense, perhaps his most noteworthy achievement, in an age in which Italian princes had begun to glorify the idea of ragione di stato thus instating the tradition of modern realpolitik, was that of rigorously formulating the principles of justice upon which international relations could be predicated in times of conflict cf De Hinojosa That his attempts to provide an ethical conception of international order met with failure in practice does not destroy the merits of his thought, but rather merely demonstrates that the struggle for such ideals as peace and justice in international affairs has been an unrelenting effort.

That his concerns in this regard are very similar to those shared by many today reveals the continued relevance and vitality of his thought. This forces us to link contemporary political and ethical speculation in matters of justice to its fathers in the world of the European Renaissance. The fundamental building block of Thomist natural law in Vitoria is the conception of the rational character of man.

His rationality not only points to his essential dignity above and beyond all other things of external nature but also designates his capacity to apprehend the fundamental principles of morality and justice that form the basis of society and its political institutions. This brand of natural law establishes that by their very rational nature, as Aquinas had argued, all men are born free and are equal in essence.

Such equality, when taken onto the plane of domestic society, holds that justice is the foundation of the political order, for only through a just, and therefore legitimate, order may the common good, the aim of law, be achieved. This notion is extended by Vitoria to the realm of international relations in his conception of the ius gentium. What natural reason has established among and between all peoples is the primary definition of the law of nations offered by him.

But the latter also finds positive, binding external expression in custom and pacts. Again, the principle underlying this conception is the concept of justice, which, in asserting the essential equality of all men, equally asserts the equal juridical standing between political communities in international relations.

Finally, Vitoria's conception of natural law, both in the domestic and international spheres, assumes a critical and constitutional function by establishing justice as a pattern of order by which political power and authority must abide if it is to be legitimate. Vitoria's vision of political life, in this manner, maintains an essential link between ethics and politics inasmuch as justice is the fundamental source of human flourishing within and between political communities. Aquinas, St. Paul E. London: Norton, The Politics of Aristotle. Sir Ernest Barker.

Oxford: Clarendon Press, Belda Plans, J. Coleman, J. Oxford; Malden: Blackwell, London: Oxford University Press, Davis, G. De Hinojosa, E. Francisco de Vitoria. Derecho natural y de gentes. Luis G. Alonso Getino. Vitoria, F. La justicia. Luis Frayle Delgado. Antonio Truyol y Serra. Madrid: Tecnos, Donnelly, J. Madrid: Biblioteca de Autores Cristianos, Fox, J.

New York: Robert Appleton Company, Leger, J. Romae: Pontificium Athenaeum Internationale "Angelicum", McLean, E. Wilmington, Del. Naszalyi, E. Neumann, F. Franz Leopold Neumann. Glencoe, Illinois: The Free Press, Nys, E. Francisci de Victoria: De Indis et De iure belli relectiones. Washington: Carnegie Institution of Washington, Pagden, A. By: Anthony Pagden. Aldershot: Varorium, Political Writings. Porter, J. Grand Rapids: Eerdmans Publishing Co. Madrid: Tip. De Archivos, Riaza, R. Sigmund, P. Norman Kretzmann and Eleonore Stump.

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Skinner, Q. The Foundations of Modern Political Thought. Truyol y Serra, A.

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  8. Madrid: Alianza, Ullmann, W. Thomas Aquinas on Politics and Ethics. By: St. Thomas Aquinas. London: Norton , Valenzuela-Vermehren, L. Creating Justice in an Emerging World. Ideas y Valores, 66 , This is so, he argues, because practical reason is exercised in the domain of contingency characteristic of human action. Here, general principles become ever more uncertain inasmuch as they increasingly refer to the particular. See Truyol y Serra I will outline the Thomist concept of justice below. See de Vitoria Here, I will focus only on the former.

    See Vitoria See Pagden and Lawrence This is an open-access article distributed under the terms of the Creative Commons Attribution License. Services on Demand Article. English pdf Article in xml format Article references How to cite this article Automatic translation Send this article by e-mail. ABSTRACT This article outlines Francisco de Vitoria's conception of natural law and natural right in an effort to amend a number of interpretations in the academic literature on his political and international thought that misapprehend Vitoria's iusnaturalism.

    Gomarus resigned his professorship at Leyden, in protest that Vorstius was not removed. He ordered his books to be publicly burnt in London, Cambridge, and Oxford, and he exerted continual pressure through his ambassador in the Hague, Ralph Winwood, to get the appointment cancelled. Grotius joined the controversy by defending the civil authorities' power to appoint independently of the wishes of religious authorities whomever they wished to a university's faculty. He did this by writing Ordinum Pietas , "a pamphlet The work is twenty-seven pages long, is "polemical and acrimonious" and only two-thirds of it speaks directly about ecclesiastical politics mainly of synods and offices.

    Led by Oldenbarnevelt, the States of Holland took an official position of religious toleration towards Remonstrants and Counter-Remonstrants. Grotius, who acted during the controversy first as Attorney General of Holland, and later as a member of the Committee of Counsellors was eventually asked to draft an edict to express the policy of toleration. The edict put into practice a view that Grotius had been developing in his writings on church and state see Erastianism : that only the basic tenets necessary for undergirding civil order e.

    The edict "imposing moderation and toleration on the ministry", was backed up by Grotius with "thirty-one pages of quotations, mainly dealing with the Five Remonstrant Articles. Jacobus Trigland joined Lubberdus in expressing the view that tolerance in matters of doctrine was inadmissible, and in his works Den Recht-gematigden Christen: Ofte vande waere Moderatie and Advys Over een Concept van moderatie [15] Trigland denounced Grotius' stance.

    In late , when Middelburg professor Antonius Walaeus published Het Ampt der Kerckendienaren a response to Johannes Wtenbogaert 's Tractaet van 't Ampt ende authoriteit eener hoogher Christelijcke overheid in kerckelijkcke zaken he sent Grotius a copy out of friendship. This was a work "on the relationship between ecclesiastical and secular government" from the moderate counter-remonstrant viewpoint.

    The letter was "a general introduction on in tolerance, mainly on the subject of predestination and the sacrament In early Grotius debated the question of giving counter-remonstrants the chance to preach in the Kloosterkerk in The Hague which had been closed.

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    During this time lawsuits were brought against the States of Holland by counter-remonstrant ministers and riots over the controversy broke out in Amsterdam. As the conflict between civil and religious authorities escalated, in order to maintain civil order Oldenbarnevelt eventually proposed that local authorities be given the power to raise troops the Sharp Resolution of August 4, Such a measure putatively undermined the authority of the Captain-General of the republic, Maurice of Nassau, Prince of Orange.

    During this time Grotius made another attempt to address ecclesiastical politics by completing De Imperio Summarum Potestatum circa Sacra , on "the relations between the religious and secular authorities Grotius had even cherished hopes that publication of this book would turn the tide and bring back peace to church and state".

    The conflict between Maurice and the States of Holland, led by Oldenbarnevelt and Grotius, about the Sharp Resolution and Holland's refusal to allow a National Synod, came to a head in July when a majority in the States General authorized Maurice to disband the auxiliary troops in Utrecht. Grotius went on a mission to the States of Utrecht to stiffen their resistance against this move, but Maurice prevailed. They were tried by a court of delegated judges from the States General. Van Oldenbarnevelt was sentenced to death and was beheaded in Grotius was sentenced to life imprisonment and transferred to Loevestein Castle.

    From his imprisonment in Loevestein, Grotius made a written justification of his position "as to my views on the power of the Christian [civil] authorities in ecclesiastical matters, I refer to my In , with the help of his wife and his maidservant, Elsje van Houwening , 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.

    Both the Rijksmuseum in Amsterdam and the museum Het Prinsenhof in Delft claim to have the original book chest in their collection. It was there in France that Grotius completed his most famous philosophical works. While in Paris, Grotius set about rendering into Latin prose a work which he had originally written as Dutch verse in prison, providing rudimentary yet systematic arguments for the truth of Christianity.

    The Dutch poem, Bewijs van den waren Godsdienst , was published in , the Latin treatise in , under the title De veritate religionis Christianae.

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    Grotius also developed a particular view of the atonement of Christ known as the " Governmental " or "Moral government" theory. He theorized that Jesus' sacrificial death occurred in order for the Father to forgive while still maintaining his just rule over the universe.

    Natural Law Theory

    This idea, further developed by theologians such as John Miley , became one of the prominent views of the atonement in Methodist Arminianism. Living in the times of the Eighty Years' War between Spain and the Netherlands and the Thirty Years' War between Catholic and Protestant European nations Catholic France being in the otherwise Protestant camp , it is not surprising that Grotius was deeply concerned with matters of conflicts between nations and religions. His most lasting work, begun in prison and published during his exile in Paris, was a monumental effort to restrain such conflicts on the basis of a broad moral consensus.

    Grotius wrote:. Fully convinced Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes.

    The treatise advances a system of principles of natural law, which are held to be binding on all people and nations regardless of local custom. The work is divided into three books:. Grotius' concept of natural law had a strong impact on the philosophical and theological debates and political developments of the 17th and 18th centuries.

    Among those he influenced were Samuel Pufendorf and John Locke , and by way of these philosophers his thinking became part of the cultural background of the Glorious Revolution in England and the American Revolution. Therefore, his concept of natural law had a theological foundation.

    They were useful in interpreting the content of natural law. Both biblical revelation and natural law originated in God and could therefore not contradict each other. Many exiled Remonstrants began to return to the Netherlands after the death of Prince Maurice in when toleration was granted to them. In they were allowed complete freedom to build and run churches and schools and to live anywhere in Holland.

    The Remonstrants guided by Uytenbogaert set up a presbyterial organization. Therefore his concept of natural law had a theological foundation. They were useful in interpreting the content of natural law. Both biblical revelation and natural law originated in God and could therefore not contradict each other. Many exiled Remonstrants began to return to the Netherlands after the death of Prince Maurice in when toleration was granted to them.

    In they were allowed complete freedom to build and run churches and schools and to live anywhere in Holland. The Remonstrants guided by Uytenbogaert set up a presbyterial organization. They established a theological seminary at Amsterdam where Grotius came to teach alongside Episcopius, Limborch, Curcellaeus, and Le Clerc. But unlike many others, Grotius refused to ask for pardon since it would imply an admission of guilt, and was denied repatriation despite his repeated requests.

    Driven out once again after attempting to return to Rotterdam in October , Grotius fled to Hamburg. In Grotius met the opportunity to serve as Sweden 's ambassador to France. The recently deceased Swedish king, Gustavus Adolphus had been an admirer of Grotius he was said to have carried a copy of De jure belli ac pacis always in his saddle when leading his troops , [18] and his successor's regent, Axel Oxenstierna , was keen to have Grotius in his employ.

    Grotius accepted the offer and took up diplomatic residence at Paris, which remained his home until he was released from his post in While departing from his last visit to Sweden, Grotius was shipwrecked on his voyage. He washed up on the shore of Rostock , ill and weather-beaten, and on August 28, he died; his body at last returned to the country of its youth, being laid to rest in the Nieuwe Kerk in Delft.

    Grotius' personal motto was Ruit hora "Time is running away" ; his last words were "By understanding many things, I have accomplished nothing" Door veel te begrijpen, heb ik niets bereikt. He was also friends with the Flemish Jesuit Andreas Schottus. In contrast, Robert A. Heinlein satirized the Grotian governmental approach to theology in Methuselah's Children : "'There is an old, old story about a theologian who was asked to reconcile the doctrine of Divine mercy with the doctrine of infant damnation.

    The collection was based on a donation from Martinus Nijhoff of 55 editions of De jure belli ac pacis libri tres. Works are listed in order of publication, with the exception of works published posthumously or after long delay estimated composition dates are given. My Dashboard Get Published. Sign in with your eLibrary Card close. Hugo Grotius. Portrait of Grotius at age 25 Michiel Jansz.

    Jacobus Arminius. The Five Articles of Remonstrance. Statue of Hugo Grotius in Delft , the Netherlands. Title page from the second edition Amsterdam of De jure belli ac pacis. Batavi Syntagma Arateorum. Marble bas-relief of Hugo Grotius among 23 reliefs of great historical lawgivers in the chamber of the U. House of Representatives in the United States Capitol. A concise history of the law of nations. Macmillan Co. Speculum 40 : Mare Clausum. Of the Dominion, or, Ownership of the sea.

    Book One. Ecclesia reformata: Studies on the Reformation. Leiden, Netherlands: Brill. In Henk J. Posthumus Meyjes. New York: E. Blom, ed. Francis Kelsey Carnegie edition, , Prol. Posthumus Meyjes ed.

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