Read THE SHIELD OF ACHILLES Online
Authors: Philip Bobbitt
It was Grotius's identification with the chancellor and the old guard in Swedish affairs that probably led to his dismissal. Incompetence is seldom a complete bar to diplomatic appointment, even for intellectuals, and Grotius was, and had been for a long time, a celebrated figure in the European republic of letters. During these years when he repeatedly angered the French over his refusals to accept French rules of precedence—rules that were to cause no little conflict at Westphalia—his main activity was not diplomacy but theology. His studies of the dogmatic disputes between
the Protestant and Catholic churches favored unification, a position that brought forth abundant and wrathful tracts from Lutheran and Calvinist theologians.
Widely regarded as a failure in Paris, he was not included in the Swedish mission to Westphalia. He was, however, asked to be a member of the Swedish Council of State. This he declined, and began the journey back to Paris from Stockholm. A shipwreck cast him on the coast of Pomerania, the scene of Gustavus's great triumphs of 1630. There he died of exhaustion at Rostock. Three years later the Peace was signed and his immortality sealed, because the Peace presupposed the “juridical order without a higher political authority” of which he had been the most ardent and celebrated advocate. Hedley Bull concluded that the “idea of international society which Grotius propounded was given concrete expression in the Peace of Westphalia, and Grotius may be considered the intellectual father of this… general peace settlement…. [I]n their broad impact on the course of international history, the theory of Grotius and the practice of the Peace of Westphalia marched together.”
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Grotius himself regretted his career. He frequently remarked that he ought not to have gone into law but stuck with literature, a frequent complaint of law professors with literary tastes. He sent his two sons into the army, not to the university as his father had sent him. And his last words are reported to have been “By undertaking many things, I have accomplished nothing.”
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Like other great men he seems to have forgotten that it takes an army of successors, often misinterpreting the great man's works or perverting them for their own reasons, to really accomplish something. Whether that posthumous army is summoned to any particular thinker's banner is usually not a matter of the great man's doing, as Oldenbarneveldt might ruefully have told him.
What is the “Grotian view,” if by that question one asks “for what principles does Grotius's posthumous army fight?” Generally, a “Grotian view” is taken to mean the assertion of a duty on the part of the individual state to serve the interests of the society of states as a whole. A weaker version of this simply asserts that there are such interests; a stronger version claims that only such interests can justify certain activities of the State, such as war. Thus the Grotian view is to be distinguished from the Hobbesian view that international society can have no legal rules because there is no sovereign to organize and maintain the collaboration among states that might replace the constant struggle of each state against every other state. Although the Grotian society of states is perhaps anarchic, it does not exist in a naked state of nature. The rationale for the Grotian view is that there exists a great society of all mankind—
humani generis societas
—and
all human institutions are governed by the rules of that society. Thus the Grotian perspective is also quite different from the Kantian view that perpetual peace can only be achieved through the construction of suprastate institutions.
Six corollaries follow from the Grotian view: that natural law is a source (though not the only source) of the rules that govern states (because man is a creature of nature, and all his activities are governed thereby); that international society is universal and not merely limited to Christendom or the European states system; that individuals and nonstate actors can have a role in the application of the rules of international law; that the universal traits shared by all mankind can give rise to cooperative requirements, and these requirements can be a source of justice; that suprastate institutions are not necessary for the rule of law to be applied to states;
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and that, being a source of law, the individual person is a bearer of rights.
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Taken together, this infrastructure of ideas provides a surprisingly modern and surprisingly accurate description of international law as it actually is— universal yet pluralistic, occasionally the source of cooperation, functioning in the absence of a universal sovereign but difficult to enforce and rarely functioning very authoritatively, a discipline that embraces not only the relations among states, but also the human rights of individuals. Whether this intellectual infrastructure was actually supplied by Grotius, or is the invention of his highly capable and imaginative disciples, I am not certain. For our purposes it is enough to see that the constitutional aspects of the Peace of Westphalia are consistent with this vision of international law, though this may well be because it is a source of that vision rather than its product.
Of greater relevance to our study, however, is the Grotian method, and not simply the views advocated by those who are deemed “Grotians.” This method supplies the ways of interpretation that are indispensable to a constitution. It was the absence of such accepted interpretive methods that had proved so destructive of the previous constitution, the Peace of Augsburg. Grotius's work is a milestone in human thought, a humanist achievement that links Erasmus and Adam Smith, but it lies not in the precepts of Grotius (the infrastructure so effectively and inspiringly described by Bull) but rather in the mundane and quotidian incidents of practice.
Our starting place must be this brilliant observation by Mattingly:
[Grotius] was only trying, like most of his contemporaries, to justify what men were doing or thought they ought to be doing… But he was the first person to see, or to make clear that he saw, that, to be persuasive, the argument must be couched in the terms not of the interests of a single unitary commonwealth of which the princes and republics of Christendom were subordinate members, but in terms of the interest in
their own self-preservation of the independent, ego-centered, absolutely sovereign states whose aggregate composed the heterogeneous, pluralistic international society of western Europe. That was what the future was going to be like.
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In other words, Grotius linked his arguments to the newly emerging society of kingly states.
Grotius's method was to completely forgo the rich store of glosses, commentaries, opinions, and precedents of the immediate past—the past just preceding and following Augsburg—in favor of Cicero, Plutarch, and Livy. Biblical citations and classical references to the political behavior of the Greeks abound in Grotius; indeed the sheer assembly of all the classical instances that can be brought to bear on contemporary problems can be dazzling, even overwhelming. This is the method of the exemplary: finding and citing examples of previous state behavior, organized according to the principal problems facing the new state society of Europe. Nothing like this appears again until
The Federalist Papers
, which became for the American constitution a rich source of interpretive methods. Grotius did this for the European constitution.
Rousseau, with his customary eye for the corrupt and self-serving, saw through this method entirely. In
The Social Contract
, he wrote: “Grotius denies that all human government is established for the benefit of the governed and cites the example of slavery. His characteristic method of reasoning is always to offer fact as a proof of right. It is possible to imagine a more logical method, but not one more favorable to tyrants.”
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But that was the point: Grotius's method—the exemplary, offering “fact as a proof of right”—enables law to act as an ameliorative bridge between religion and politics, channeling real and otherwise insoluble conflicts into more detached, legal terms. Rousseau's method, and that of the political philosophers who were his contemporaries, was instead to imagine a just rule and demand that the State adhere to it. Whatever the justice of Rousseau's method, and I think there is less than is commonly assumed, it is not a method that provides interpretive modalities. It is a pamphleteer's method, not a lawyer's. What the lawyers were trying to do, Mattingly reminds us, “was to rationalize the usual conduct of European governments, or justify the position of a client or patron in a dispute.”
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Pre-cisely—and this is what gave Grotius his uncanny ability to anticipate what would be the course of the international society whose fate was being negotiated at Osnabrück and Münster as he lay dying in Rostock.
This is the true ground of Grotius's otherwise elusive concept of natural law. It is no more than the way things are done; not the substance of the law, not the things being done themselves—this Grotius called the “volitional law”—and not the divine law, but the ordinary, everyday methods of
arguing and putting forward interpretations. Grotius appears to have believed that with this approach he might find a receptive audience for his ideas about uniting the conflicting theologies of post-Reformation Europe. Here he attempted too much: law might be a bridge between religion and politics, but not between religions. Only a true humanist could have thought otherwise.
Grotius's methods of interpretation, those that are implied by the “exemplary” approach to interpretation, are capable of embracing many sorts of problems. They allow for the destabilization of governments, the use of propaganda, the revoking of a pledged word by means of the
clausula
, the right of intervention—as much as they are a call to solidarity among states. Mainly these methods provide for the legitimacy of all civil authority, a rather useful idea when a new constitution for a society of new forms of the State is coming into being. Grotius defined sovereignty as that power “whose actions are not subject to the legal control of another, so that they cannot be rendered void by the operation of another human will.” Thus when the State adopts the constitutional order of the kingly state—and has not only seized for itself a monopoly on violence, but admits no ecclesiastical superauthority (even as to ecclesiastical matters)—it has also achieved legitimacy.
De Jure Belli ac Pacis
is a compendium of methods by which the treaties and rules of Westphalia can be applied. It does not prescribe the content of those rules.
It is doubtless true that there was “little that guardians of
raison d‘état
… in the class of Richelieu and Father Joseph could learn from Grotius. Yet their secret archives, diplomatic correspondence, sophisticated treaties… all attest to the competence… and the growing richness of the practice of European international law.”
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Richelieu and Gustavus Adolphus did not seek guidance (though Gustavus admired Grotius greatly). Their successors, however, needed interpretive methods to put into effect the system these leaders had designed and successfully fought for. Through the numerous editions and translations of
De Jure Belli ac Pacis
the idea of an international society of kingly states was chiefly spread.
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In Grotius, the successors to Richelieu and Gustavus found ways to support the rights of kings to sovereignty, the denial of the supervening authority of the pope, the right to use force to vindicate the Westphalian system, the equal rights of Protestant and Catholic states, the rights of states to navigate the oceans and to conduct trade without the permission of other states, and the validity of agreements made with non-Christian powers. Most significantly for the Westphalian constitution, Grotius gave arguments for the use of war to uphold the general settlement.
The fact must also be recognized that kings, and those who possess rights equal to those kings, have the right of demanding punishments
not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations… For liberty to serve the interests of human society through punishments, which originally, as we have said, rested with individuals, now, after the organization of states and courts of law, is in the hands of the highest authorities, not properly speaking, in so far as they rule over others but in so far as they are themselves subject to no one.
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Sovereignty thus implies rather than denies a duty owed to the society of sovereign states. Both Richelieu and Gustavus Adolphus had envisioned a collective security system that would emerge from the Thirty Years' War. Although both had died by the time of the congress, Richelieu's written instructions were followed unaltered. Minutes taken by the papal and Venetian envoys disclose that the French “proposed, for the safeguarding of the peace, a general league between all those concerned in this pacification… with the reciprocal obligation for each and any of them to take up arms against him or those who might infringe the present treaty.”
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Just such obligations are at the center of the Grotian rationale. In the end, the proposal foundered on Oxenstierna's suspicions of France, on the exclusion of the Franco-Spanish conflict, and on French hauteur. Grotius's moment was not complete.
Grotius had written in 1625,
I saw prevailing throughout the Christian world a license in making war of which even barbarous nations would have been ashamed; recourse was 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 thrown away; just as if men were thenceforth authorized to commit all crimes without restraint.
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