In this chapter, I deal with the issue of how Burke and his early modern predecessors discussed the question of ‘international law’ and its enforcement. As is well known, some of the main jurists of the early modern period such as Vitoria, Gentili and Suárez’ differentiation of the law of nations from the law of nature led to the gradual emergence of the legal principle and moral right of intervention to prevent gross violations of the natural law. Such ideas were refined by Grotius, who largely equated international law with punishment, something Pufendorf and Vattel would later criticise. I argue that it is nevertheless Edmund Burke to whom we must look to bridge the two concerns of international law: authority and enforcement. Burke provided the conceptual scope needed to resolve the issues of enforcement plausibly by prescribing specific common law foundations, binding the legal and the moral in international law and presenting it as domestic law. This way of looking at Burke is under-recognised and provides insight into some of the same concerns that face the international society of states today with regards to the enforcement of international law. In the history of international law, during the long nineteenth century, Burke is somewhat of an early century detour. By emphasising the force of ‘customary international law’ he does not have a strong affinity with nor is he a precursor to the sort of international legal positivism that characterised the later century, where international law was gradually equated with the codification of customary law.
This article reviews Andrew Fitzmaurice’s recent book Sovereignty, Property and Empire 1500–1800 with a critical examination of the author’s analysis of Hugo Grotius. Unlike other works of intellectual history that focus on the relationship between empire and political theory, this book offers a refreshing account of how Western political thought also provided a critique of empire. Using the law of occupation to explain the origin of property and political society, Fitzmaurice demonstrates how ‘occupation’ was used to both justify and criticise extra-European imperial expansion. His analysis of Grotius is centred on ‘occupation’, explaining that even though Grotius’s political thought supports an imperialistic thesis, there is also evidence of anti-imperialist sentiments running through his works. I argue, however, that whilst Fitzmaurice provide a sound and interesting account of the role occupation plays in explaining Grotius’s two different accounts of property in De Indis and De jure belli ac pacis, he disregards the broader philosophical implications this has for Grotius’s theory of property.
This article investigates the formal purpose of declaring wars for Hugo Grotius. Grotius was adamant that states always use justification in a duplicitous way to conceal their real motivation to go to war. As such, the purpose of declaration is not to assert the just cause of war. Rather, what any public declaration does, is provide recognition that confers legal validation to the disputing parties. The legal rules of war were described by the law of nations and occasionally permitted states to commit certain ‘war crimes’ with impunity. For Grotius, this was not a moral sanctioning of such crimes but rather a means to prevent the occurrence of wars, which such endless repudiations risked causing or exacerbating. Grotius’s concern for the effects of war is conspicuous; and recounting his maxim that war should always be a last resort, this article argues that declaration of war has a distinct moral purpose for Grotius. In fact, public declaration of war is, together with constraints on the conduct of war, a ‘principle of moderation’ Grotius insists should be upheld in times of war. Declaration of war gives the parties avenues to seek peace and reconciliation, and, therefore has a humanitarian purpose for Grotius by ultimately seeking to prevent the disparaging effects of war. Even in wars that do not demand a public declaration, such as those regulated by natural law such as punitive wars or defensive wars, Grotius cautions that declarations of war are advisable. The remaining lingering issue is how to engage with unlawful enemy combatants, such as pirates - a distinct problem that the international community still faces with increasing regularity. Grotius was certainly aware of the legal (and moral) consequences of recognising belligerency we cannot possible hope to build moral relations with, and, this article claims, ‘unlawful’ enemies ultimately demarcates the boundary of international society.