The Cambridge Companion to Hugo Grotius, ed. by Randall Lesaffer and Janne Nijman

In: Grotiana
Peter HaggenmacherHonorary Professor, The Graduate Institute of International and Development Studies, Geneva, Switzerland

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The Cambridge Companion to Hugo Grotius, ed. by Randall Lesaffer and Janne Nijman (Cambridge: Cambridge University Press, 2021), 640 pp.

In memoriam Heinhard Steiger (1933–2019)

Some random notes upon a first reading of the Cambridge Companion to Hugo Grotius

Since the end of the eighteenth century, when Grotius was dubbed the ‘founder’ or ‘father’ of international law, his fame and achievement was increasingly centered on his foremost work, the Three Books on the Law of War and Peace. This more and more entrenched and cumbrous commonplace went of course to the detriment of the rest of his intellectual legacy, which, though not entirely forgotten, was deemed marginal, like a decorative frame around the solely important painting. Such was at least the perception of the jurists, especially internationalists, who looked upon the great man’s memory and the handling of his heritage as their natural appurtenance. Under their lead this restricted image of Grotius was consecrated in the early twentieth century with the inauguration under his spiritual patronage of the Peace Palace at The Hague, in 1910, followed in 1925 by the celebration of De iure belli ac pacis (hereafter: ibp), symbolizing renewed international law and order after the disaster of a cataclysmic war.

The reputation of its author as the founding father of international law has since steadily maintained itself, despite occasional vacillations due to some earlier Italian or Iberian competitors being sent into a rather ludicrous backward race for posthumous renown. No less steadily has persisted the internationalists’ claim to be Grotius’s privileged interpreters, a perfect illustration of which was Hersch Lauterpacht’s commemorative article of 1946 on what he named the ‘Grotian tradition in international law’. Another climax of this glorification pro domo was reached in 1983 with the imposing colloquium on ‘International Law and the Grotian Heritage’ held at the Peace Palace under the auspices of the T.M.C. Asser Instituut. This gathering was on the whole more of a social event allowing the international law establishment to celebrate itself than a truly scientific meeting aiming at new insights on the Oracle of Delft.

That task was left to another colloquium convened on the same occasion of Grotius’s fourth centenary at Rotterdam, the second day of which was spent on a memorable excursion by boat to Loevestein, the working sessions being continued on board. Organized by a national Grotius Committee, it was significantly entitled ‘The World of Hugo Grotius (1583- 1645)’. Implicitly, this formulation meant that Grotius was to be studied for himself, apart from his relevance for the present and still less as a marble statue on a pedestal. On the other hand, without passing over Grotius the jurist, the picture had to be widened by including the remaining aspects of his life and work: the man of letters, the poet, the historian, the theologian, among others. To be sure, these aspects had not been entirely neglected hitherto, but being studied in isolation within specialized circles, they had hardly risen to the level of more general awareness. Now these less conspicuous segments of his oeuvre came to the fore and were perceived by an enlarged community of scholars as constituting together ‘the world of Hugo Grotius’. The traditional hegemony assumed by the internationalists had definitely come to an end. The slender volume containing the proceedings of the Rotterdam colloquium stands thus at the beginning of a comprehensive vision of the whole Grotius. It can be seen as the blueprint of the thrice as voluminous Cambridge Companion to Hugo Grotius that has just alighted on our desks.

But before moving on to that volume, another factor contributing to that holistic approach deserves to be mentioned: Grotiana, this very journal. It was started in 1980, shortly before the Rotterdam colloquium, as a ‘new series’. It had indeed been preceded by a Grotiana Yearbook, ten instalments of which were published from 1917 to 1947, under the aegis of the Foundation for the Edition of the Works of Grotius set up by Cornelis van Vollenhoven in 1917. The renewed perspective on Grotius was already apparent in that programmatic appellation. In fact, though, the works of the Foundation did not get beyond some beginnings, most importantly with charting anew the continent of Grotius’s correspondence. Things began to move again in 1979 owing to a reborn Grotius Foundation, which launched the New Series of Grotiana the year after. The journal has prospered over the past four decades and has amply proved to be a valuable and widely visible forum operating on quite another scale than its interwar predecessor, while fully perpetuating its transdisciplinary vocation.

The success of Grotiana also owes something to the markedly growing interest aroused during these decades by the history of international law. This leads us back to Grotius the lawyer and to the discipline with which his name remains preferentially associated. It so happens, as a matter of fact, that the initiative of the present Companion volume was taken by two historically minded jurists, both board members of the Grotiana journal; the clue to it being given by a colleague bearing the proud title of Professor of War and Peace.

The volume opens with a general introduction by its editors, Randall Lesaffer and Janne Nijman. It is divided into five main parts of unequal length, comprising 28 contributions in all. The first part is devoted to Grotius’s life ‘in context’. It is followed by a longer part on various ‘concepts’ that are said to pervade his thought. The third part gives an account of Grotius’s writings, short of his legal production, which is dealt with separately in the fourth part. The final part, relatively short as the initial one and symmetrically to it, focusses on Grotius’s Nachleben.

Supposing a linear reading of the volume, it might have been preferable to put the second part in the fourth place. Indeed, the third part, picturing Grotius ‘as a man of letters, theologian, and political writer’, contains quite a few biographical indications that usefully complete those of the first part, and thus forms a natural prolongation of it. By the same token the fourth part, that portrays Grotius as a legal scholar, would thereby move to the middle of the volume, which is its proper position (like the Mont-Blanc among its fellow peaks, as seen from Geneva). It is only once the general contours of this oeuvre have been sketched that the various ‘concepts’, now figuring in the second part, become truly meaningful. In Grotian language, this would have been the proper ordo docendi, and it shall be followed in this brief review.

The first part of the volume, situating ‘Grotius in context’, comprises three biographical contributions. It begins with a general overview of Grotius’s life and intellectual development by Henk Nellen. No better authority could have been found in this respect than the author of a monumental Grotius biography, which is already a classic. The title of that work – A lifelong struggle for peace in Church and State – could have served as a motto for the present piece. It is especially instructive with regard to the less iconic ‘Swedish’ phase of Grotius’s life, which is particularly familiar to Nellen, who has brought the edition of Grotius’s correspondence to its conclusion.

The two other contributions of this opening part deal with Grotius’s Dutch years. Edwin Rabbie traces Grotius as a ‘legal, political and diplomatic official’. Instead of idealizing his cursus honorum, he tends to show its shortcomings, making Grotius all along an illustration of the celebrated ‘Peter Principle’ (much as Jan den Tex had already done some decades ago in his Oldenbarnevelt biography). Rabbie’s chapter is particularly welcome for clearly outlining the institutional background of Grotius’s Dutch career.

Peter Borschberg describes Grotius’s activities during the same period but more specifically with regard to his engagement in East Indian affairs, starting with the case of the Santa Catarina that gave rise to his De iure praedae commentarius(hereafter: IPC). This is of course closely tied up with Grotius’s role as a lawyer and lobbyist in the Dutch commercial and colonial expansion, which has come under growing scrutiny (almost ad nauseam) since the 1990s as part of postcolonial qualms and polemics under the banner of ‘International Law and Empire’.

Borschberg’s chapter can be read in conjunction with Andrew Fitzmaurice’s piece on ‘Property, Trade and Empire’ that figures in the second part of the volume as one of the ‘concepts’ dealt with therein. Fitzmaurice tries to show (in line with Richard Tuck’s position) that at the heart of Grotius’s law of nations lie interest and expediency, not sociability, which is at best a reassuring, ethically correct façade. That utilitas does have its place in Grotius’s conception of international law, at least in an accessory function, cannot be denied, it is acknowledged by himself (see below the remarks on Sociability); but conversely his comment on De cive in 1643 to his brother Willem is sufficient evidence that he cannot be considered a proto-Hobbesian as claimed by Tuck c.s.

I note in passing that both Borschberg and Fitzmaurice seem to consider that Grotius’s original title of what is known as De iure praedae commentarius was in fact De Indiis. This may slightly improve on Tuck’s original proposition De Indis, which is utterly implausible (not to say outright absurd) since Grotius did not care about ‘the Indians’ as such, like Francisco de Vitoria in his famous Relectio de indis, but about armed commerce in the East Indies (Indicana commercia). This is possibly meant by the corrected title De Indis; but then these ‘Indies’ were hardly ever styled in the plural in Latin (see e.g. Indiae commercia; Mare liberum, 13 Tuck’s bid, even slightly doctored up, is doomed to fail in spite of all the followers it gathered. In last analysis, considering Grotius’s manuscript as a whole, not restricted to its twelfth chapter that was recycled as Mare liberum, the title De iure praedae is still about the best guess at what may have been its original title.

From here, as announced above, we jump immediately to part iii of the Companion where Grotius is presented in his main fields of activity other than law. First he appears as a man of letters in a twofold guise, through his literary works, on the one hand, and his historical enquiries, on the other. Both these productions can be seen as direct outflows of his studies in the Arts faculty at Leiden under the aegis of renowned mentors. At heart, Grotius always remained a philologist, as Willem van Eysinga observed in the affectionate portrait he drew of him in the aftermath of World War ii (still a very good introduction, which I read long ago in the German translation by Mrs Plemp van Duiveland, Basel, 1952; see p. 29). This philological bent is present (and crucial) not only in Grotius’s Biblical comments, but it was doubtless instrumental also with regard to his first encounter with law, which in all probability he studied (not by taste, but on paternal injunction) suo marte, without setting his foot into the law faculty at Leiden Academy. There is a late echo to this vicinity of law and philology in his late Florum sparsio ad Ius Iustinianeum (a neglected work shortly touched upon by Laurens Winkel and Alain Wijffels at pp. 271 and 401–2).

The editors were able to secure for both Grotius’s literary and historical writings the collaboration of two further eminent Dutch authorities, Arthur Eyffinger and Jan Waszink, respectively.

Eyffinger resolutely dispels the impression that Grotius’s rich poetical outpourings are merely a heap of literary niceties presenting at best some antiquarian interest for highly specialized scholars; rather, he wants to affirm ‘the social, moral and political pertinence’ of Grotius’s literary oeuvre and ‘to substantiate its quintessential status within his overall philosophy’ (p. 293). He sees it indeed as part of an ‘ambitious programme of comprehensive social reform to overcome the incisive moral and intellectual crisis of his day and age’ (ibid.). It is in such perspective that we are introduced to Grotius’s early dramas Adamus exul (1601) and Christus patiens (1608), much later to be followed by Sophompaneas (1635), staging the story of Joseph in Egypt, Grotius having by then himself become an exile endowed with new official functions as Queen Christina’s ambassador to Louis XIII in Paris. Eyffinger also stresses the importance of two other works dating from the beginning of the Parisian exile: the edition and translation of Stobaeus’s Dicta poetarum (1623) and the Excerpta ex tragoediis et comoediis Graecis (1626).

Waszink’ s portrait of Grotius as a historian shows him under two opposite aspects reflecting a major tension in his thought: ‘the division between legal normativity and moral optimism on the one hand and scepticism, moral pessimism and reason of state on the other’ (p. 316). This bipolarity gives rise to his two best-known, somewhat antithetical historical works, De antiquitate reipublicae Batavicae and Annales et historiae de rebus Belgicis. Both of them appear, no less than the two contemporaneous dramas, as littérature engagée. Especially in the latter case Grotius saw himself not as a detached humanist but ’as a political insider and historian at the same time’ in the style of Tacitus and Jacques-Auguste de Thou. Waszink also points out the part of history in Grotius’s Biblical exegesis and above all in ibp. His use of history in the latter work is clearly and admittedly (ibp, Proleg. 46) of the ‘exemplary’ rather than of the ‘reason-of-state’ type, contrary to what Waszink seems to understand (pp. 326–7).

Grotius’ s theological thought is set out in all its complexity (and somewhat rhapsodically) by Oliver O’Donovan. His chapter can be profitably read together with Camilla Boisen’s contribution on Predestination and Harm-Jan vąn Dam’s on Church and State, both figuring in the Companion’s second (‘conceptual’) part. Van Dam rightly observes that for Grotius ‘there existed no fundamental difference between his historical, political, theological or legal work’ (p. 199). By the same token one can turn to Hans Blom’s chapter on Grotius’s Political Writings which closes the third part of the volume. From here (speaking like a tourist-guide) one can smoothly revert to Gustaaf van Nifterik’s observations on Sovereignty in the second part.

The fourth part of the Companion comprises eight chapters on Grotius as a legal scholar. The series starts most felicitously with Alain Wijffels showing the main influences that shaped Grotius’s legal thought. While early modern legal humanism clearly had its part in it, he also stresses the persistent though less conspicuous importance of the more traditional mos italicus. A third strand, the continuous sixteenth-century attempts at systematizing Roman law, equally permeates Grotius’s legal writings. These are examined as to their respective texture in the rest of the chapter.

The first occasion for Grotius to put to the test his abilities as a systematizer came with his stay in the Loevestein prison, where he wrote his vernacular Inleidinge tot de Hollandsche Rechtsgeleerdheid. A useful introduction (for beginners) to this remarkable text book is given by Wouter Druwé who, after exploring its presumable sources, sets out the content of its three parts. These Hollandic institutes, nowadays hardly known beyond specialist circles, not only became the bedrock of so-called Roman-Dutch law, but can also be seen as a prefiguration of (and preparation for) the second book of Grotius’s magnum opus.

It is of course in this latter work that Grotius the systematizer is at his best. ibp is examined in the two contributions of Randall Lesaffer and Stephen C. Neff. In modern parlance they deal with Grotius’s ius ad et post bellum and ius in bello, respectively.

Lesaffer correctly points out that the subject matter of ibp is not international law in the modern sense, but the law of war and making peace as developed in a continuous doctrinal tradition since the twelfth century. Grotius had gone over this whole material for his early brief on the law of prize, which allowed him in turn to write his mature treatise in little more than a year after fleeing to his Parisian exile. Lesaffer deals with both works and points out some of their differences, especially the new role played in ibp by public formal war under positive ius gentium, as against the just war conception under ius naturae in ipc.

The contrast between natural law and law of nations is also at the basis of Neff’s presentation of the Grotian ius in bello, although his language may seem a trifle too Vattelian. Unlike Vattel’s droit des gens volontaire, Grotius’s ius gentium voluntarium is still a mere ‘source of law’ generating various rules and institutions, rather than a homogeneous, integrated ‘body of law’. More than a century of doctrinal debates lie between the two authors and their deceptively similar terminologies. Vattel’s droit des gens is the result of Wolff’s complete rearticulation of Grotius’s ius gentium by the middle of the eighteenth century.

After the law of war and peace-making, the Grotian law of the sea is reviewed by William E. Butler in a refurbished and updated version of his contribution to the Oxford lecture cycle organized by the late Hedley Bull in 1983. His main vantage-point is the United Nations Convention on the Law of the Sea adopted the year before at Montego Bay, which enables him to show not only the relative obsolescence but also the stupendous vitality of the Mare liberum slogan launched by Grotius (hereafter: ml), which is still what makes him today known to a larger public, together with the legendary bookcase that carried him from Loevestein back to freedom.

The remaining chapters of Part iv bear on three subject matters that have pride of place in book ii of ibp: property, contracts, and criminal law.

Property is obviously crucial in both internationalist writings published in Grotius’s lifetime, ml and ibp. Bart Wouters retraces the gradual process leading in both works from an original regime of common property to the emergence of private property. In ibp the transition from one to the other is supposed to be effected by way of agreements, mostly tacit, which do not, however, extinguish an original right of necessity in favour of the needy. This point seems to be a pet concern to the author, whose language in this respect, contrasting an original ‘state of nature’ with a ‘regime of civil property’, may for all that seem somewhat too Hobbesian; while private property was indeed introduced by human will, it remains sanctioned by natural law (ibp, I.1.10.4 and 7).

Grotius’s views on contracts, hardly less influential than those on property, are explained by Paolo Astorri in conjunction with treaties. He credits Grotius with ‘a first draft of the modern general theory of contract law’ (p. 513) leading up, through two centuries of natural law thinking, to the Prussian, French, and Austrian private law codifications. Grotius draws on two distinct sources of inspiration, the canonistic and scholastic reflections on promises and the civilian doctrine of contracts. These are in fact the titles of chapters xi and xii of book ii of ibp, completed by chapter xiii on oaths. They obviously form a triad in Grotius’s conception, since he takes them up again in a further chapter on sovereign engagements. These are private engagements, distinct from public conventions, treaties, which form again the object of a separate chapter, owing to their specific properties.

Grotius’s theory of ‘Punishment and Crime’ is discussed by Dennis Klimchuk. He takes into account not only what Grotius had to say on it in ibp, but also in his earlier ipc and Inleidinge. Some evolution is noticeable between them; in particular it is only from the Inleidinge onwards that he categorically distinguishes crime from tort. What does not change is the philosophical foundation of punishment, which Grotius invariably places in expletive (corrective), not attributive justice (the two terms appearing strangely as ‘explicative’ and ‘allocative’ in a subtitle at p. 538). Grotius’s mature theory on punishment comprises the two monumental chapters xx (De poenis) and xxi (De poenarum communicatione) of book ii. Klimchuk limits himself to the former. On the other hand, he considers that not only punishment ought to be looked into, but also Grotius’s concept of crime; whence his title, that reverses the one of Dostoyevsky’s celebrated novel.

The second part of the volume, bearing on ‘Concepts’, is a mixed bag, and one may have mixed feelings about it. Instead of a harmonious cosmos of key concepts playing ‘a significant role in Grotius’s vast body of work’, as affirmed by the editors in their general introduction (p. 7), we are confronted with a rather haphazard collection of notions forming at best a torso. Some of its prospective limbs were regrettably lost in the course of the editing process (p. 9). On the other hand, some of the chapters that are included might have better figured elsewhere. Thus Harm-Jan van Dam’s excellent contribution on Church and State has more to do with institutions than with ‘concepts’ and would perfectly fit into the ‘context’ part at the beginning. Gustaaf van Nifterik’s chapter on Sovereignty could, somewhat extended, favourably have been relocated in the fourth part under the more comprehensive title ‘Grotius as a constitutionalist’. This would have allowed to mark Grotius’s significant contribution to the infant discipline of public law. As announced in its subtitle, ibp did indeed also bear on iuris publici praecipua; and there are several other works, including some of the iuvenilia rescued in 1864, that witness to Grotius’s permanent interest in this field. These reservations about the second part as a whole have of course no incidence on the value of its individual chapters, some of which are indeed quite stimulating, even (and especially) if they may raise some doubts and objections.

The catalogue of concepts opens with Mark Somos’s contribution on ‘Virtue’. That virtues do play a key role in the whole·of Grotius’s oeuvre, legal or otherwise, as affirmed by the author, is fairly obvious, it almost amounts to running in an open door. Moral and political philosophy forms the natural background of Grotius’s thought. Less obvious, however, is the claim that he had a genuine ‘theory of virtue’ that ‘stayed remarkably coherent as he applied it to diverse real-life problems and themes’ (p. 92). In fact, such a theory remains at best implicit; Somos himself grants that its elements are ‘scattered over multiple works’ (p. 91), and he indeed appears a bit like an entomologist catching butterflies here and there all over a summer meadow. Yet it is not easy to make out in all this a theory of virtue endowed with ‘chronological continuity and intellectual coherence’ (p. 101).

Among the virtues collected by Somos figures fides; and Trust is the theme of a separate chapter by Peter Schröder. Trustfulness, closely allied to truthfulness, was highly valued by Grotius since his early De fide et perfidia, where it appears as a specifically Dutch trait. Schröder emphasizes its crucial role in international relations, public or private; but the link he establishes between trust and punishment makes hardly sense.

Grotian Natural Law is presented by Meirav Jones as a ‘true law’ inherent in God’s ‘ordered plan of nature’ (p. 139 and passim) and hence prior to any putative state of nature, be it Hobbesian or otherwise. Such a conception is in fact set out in Grotius’s early ipc under a clearly voluntaristic guise as a direct outflow of God’s creative will. No less clearly, however, natural law appears in ibp as founded on human rationality, God’s competence in the matter being severely cut back. Jones rightly holds that the contrast is less radical than would seem at first blush (as I have myself tried to show some forty years ago): Grotius’s youthful conception of natural law does not exclude rationality, and the mature one is not entirely devoid of a voluntaristic residue. She ascribes the change in presentation to Grotius’s having in the meantime got aware of Philo of Alexandria who, while absent from ipc, is frequently mentioned in ibp and specifically quoted in the footnote accompanying its celebrated definition of natural law. At the same time, she considers that Grotius was unwittingly Philonizing already in his youth, which could remind one of Monsieur Jourdain speaking in prose without being aware of it before being told so (quite apposite in the current Molière year). One may have some doubts about Grotius’s unconscious Philocentrism and his Philonic readings as a catalyst. I would rather see it as a case of ‘coïncidence éclectique’, as I have named it for want of a better expression. But in any event, there is merit in drawing attention to this author who was obviously appreciated by Grotius in his middle and later years, although nothing of all that warrants Jones’s contention that he brought about a ‘break from scholastic natural law’ (p. 142).

In a similar vein as Jones, Francesca Iurlaro, in her chapter on the concept of Rights, points to Grotius’s reading of Michael of Ephesus as a catalyzer for his reformulation of distributive justice in ibp. Whatever his definition of ‘attributive’ justice as aptitudo may owe to that twelfth-century Byzantine commentator of Aristotle, she is certainly right in criticizing Richard Tuck’s idiosyncratic view of Grotius as an anti-Aristotelian and pre-Hobbesian. On the other hand, she is less convincing in her vindication of Grotius’s aptitudo as being more or less on a par with the facultas that is at the core of his ‘expletive’ justice (she is not alone in this re-evaluation of Grotian attributive justice). To be sure, Grotius is rather vague as to the features of his attributive justice in ibp, which leaves some room for interpretative imagination; at any rate, however, he obviously considers it less important than expletive justice, which commands rights properly and strictly speaking; whether one likes it or not, these alone are really decisive in his account of just war as well as of punishment.

Iurlaro’s chapter on Rights is followed by a second one in which Laurens Winkel sets out the Roman law background of the concept and its reception by Grotius. He observes that ‘the notion of subjective rights can only be traced back vaguely to later Antiquity and certainly not to the period of classical Roman law’ (p. 261). Much less to the point is his contention that the early modern private law notions ius ad rem and ius in re reappear as ius ad bellum and ius in bello in books ii and iii, respectively, of ibp. In fact, the two terminological couples have nothing in common. The private law distinction between relative and absolute rights concerns only the system of substantive law as developed in book ii. The other distinction, which was not coined before World War i (although it can claim a vaguely Grotian ancestry, see ibp, Proleg. 28) does characterize books ii and iii (except for the last six chapters which contain the ius pacis); but for Grotius the relationship between them was more fundamentally that between substantive and procedural law.

Predestination, another item in this ‘concept’ gallery, is portrayed by Camilla Boisen against its politico-theological background. It had become a central point of discord in the ‘Arminian Troubles’ that shook the nascent Dutch republic to its foundations during a whole decade, from the conclusion of the Twelve Years’ Truce in 1609 to the Synod of Dordrecht in 1619. Boisen considers that Grotius’s moderate position in the matter, implicitly siding with the Remonstrants’ thesis of conditional predestination, finds a counterpart in his intellectualist conception of natural law as expressed in the celebrated ‘impious hypothesis’. This view might seem plausible at first sight, since divine authority appears limited in both respects, by human free will in the case of predestination and by human rationality with regard to natural law (the more so, one could add, as Grotius’s initial conception of natural law, prior to the predestination crisis, had been clearly voluntaristic). And yet, Boisen’s linkage of the two questions is hardly tenable, since they are categorically distinct. Predestination is a theological problem concerning the salvation of each soul individually, whereas natural law is a legal problem concerning human conduct at large in this sublunary world, irrespective of individual belief. Even if divine will is involved in both, it is in different ways: directly with predestination, indirectly as to natural law (which, though intrinsically rational, still presupposes its creator’s will to make it a genuine law; see ibp, Proleg. 12).

Grotian natural law and human rationality are closely entwined with a third notion: Sociability. While this connection would seem axiomatic in Grotius’s initial flourish against Carneades’ sceptical onslaught on natural law and justice, it rather appears as problematic in Benjamin Straumann’s somewhat convoluted analysis of this foundational passage (ibp, Proleg. 5 sqq). He discerns a shift in Grotius’s account of sociability ‘where we have gone from an attempt to meet Carneades on the ground of moral motivation to an account of how we get to know the rules of natural law’ (p. 168). In fact, whereas Grotius does indeed, later in the Prolegomena, address the epistemic problem of determining the rules of natural law, what he aims at in the first place is not the ‘motivational question about the normative pull of natural law’ (ibid.), but its sheer existence. Once that is granted, its mere quality as law is by definition supposed to exert a ‘normative pull’ like any other legal norm. (And like any other legal norm, however strong its “pull” and from whichever spring it may proceed, natural law can of course be violated.) It is only in a second step (ibp, Proleg. 16) that Grotius adds the utile to the honestum, as an additional incentive to comply with natural law (while it is the principal motive with respect to positive law, whether ius civile within the state or ius gentium in international relations; it being understood that Grotius has in mind not utilitas praesens, like Carneades, but perpetuae utilitates, ibp, Proleg. 18).

This is about all there is in Grotius’s account of sociability, and it is fairly straightforward if one expresses it in his own language rather than in terms of ‘moral psychology’ (p. 165) flavoured with games theory (‘free-riding’, p. 164). In order to counter Carneades’ short-sighted utilitarianism, which denies the very existence or at least the relevance and value of justice in human relationships, Grotius grounds his natural law on human nature itself, which he declares to be altogether rational and sociable. From this specifically human nature he derives the appetitus societatis (ibp, Proleg. 6) or affectus socialis (ibid., 14) that induces man to care for others (societatis custodia, ibid., 8) and to live with them in an orderly and peaceful community, within the limits of human understanding (ibid., 6, 8). This is what Grotius calls oikeiosis in a tiny phrase added in the 1632 edition (ibid., 6).

All this is obviously indebted to Cicero, as Straumann never tires of stressing. Yet it deserves some closer scrutiny. In fact, Cicero is only indirectly present in the Prolegomena through the figure of Carneades, as preserved by Lactantius’s account of De republica. By way of corroboration, Straumann points to a seemingly comparable argumentation at ibp, I.2.1 where Grotius calls him in aid explicitly and in part literally. But this passage should not be directly related to the Prolegomena without greatest circumspection. Like any other preface, the Prolegomena were written in the end, once the work was accomplished, disclosing, in retrospect as it were, a more general perspective on the entire landscape traversed. Considered in the flow of the writing process, the two passages are therefore separated by the whole bulk of the book and they find themselves on distinct levels. In the absence of an explicit reference, one cannot freely move from the one to the other. And indeed, in spite of some common anthropological elements gathered from Cicero’s account of stoicism, their context and positioning is clearly different. In the Prolegomena Grotius aims to establish the existence of natural law through a conception of human nature sharply detached from other animals by virtue of its rationality. In ibp, I.2, the existence of natural law is presupposed (by reference, not to the Prolegomena, but to ibp, I.1.3), the point at issue being its relation to war. To show that they are compatible with each other, Grotius envisages natural law genetically, in connection with human nature, first in its initial state and its elementary needs, then in its mature, fully rational condition. The distinction between prima naturae and quaedam consequentia is obviously culled from Cicero’s De finibus. In fact, however, this is only a humanistic veneer on a former conception Grotius had displayed twenty years before in his ipc. In that early prefiguration of ibp he had already met with the same problem of the compatibility of war with law, ius naturae being divided into an instinctive ‘primary’ and a rational ‘secondary’ branch (which in turn was identified with ius gentium primarium). This conception is still faintly perceptible in some places such as ibp, I.2.4; it had of course less to do with Cicero, pace Straumann, than with mediaeval ius commune.

More generally, the whole of Grotius’s just war theory is inconceivable without the doctrinal corpus gathered by generations of legists, canonists, and theologians during the four previous centuries on the various aspects of iustitia belli, whatever their roots in Antiquity.

Finally, we come to the three contributions making up the last part of the Companion, wherein the Grotian legacy and its repercussions are examined. The first of these contributions bears on Grotius and the Enlightenment. Assessing the ‘Grotius factor’ (Georg Schwarzenberger) in this almost two-centuries’ intellectual and spiritual movement is of course a disarmingly complex venture. Marco Barducci prudently begins by adverting to the complexity of the very notion of Enlightenment, which, apart from being a cosmopolitan phenomenon, also has several national shades such as Lumières, Aufklärung, or Illuminismo. His special focus is on Grotius’s impact on two crucial aspects of Enlightenment: natural law and natural religion. Under the first heading, he mainly deals with sociability, social contract theory, and colonialism, touching on authors like Pufendorf and his disciples, as well as on Hobbes and Locke, among many others. Under the second heading – natural religion – Barducci discusses in particular Grotius’s influence on Socinianism and his importance for Biblical exegesis. There is not a word on the bourgeoning discipline of international law. To be sure, it tended to be subsumed under the teaching of natural law, under the influence of Pufendorf and his disciples, who had made Grotius their figure head in spite of their more significant Hobbesian leanings. Only towards the end of the Ancien Régime was he formally styled the originator of an autonomous law of nations by Ompteda and Ward, its first historians, while it was just being renamed international law by Bentham.

Grotius and international law is examined by Ignacio de la Rasilla in the next chapter, covering the period from about the mid-nineteenth century to our days. While the substantive relevance of ibp had been declining since Emer de Vattel’s Droit des Gens, the symbolic status of its author kept ascending in the course of the nineteenth century, reaching its peak around 1900, with the final consolidation of international law as a practical legal discipline and all that goes with it, such as institutions, teachings, associations, and journals. In the course of the twentieth century Grotius’s fame was subject to fluctuations which are aptly described by De la Rasilla. The tercentenary of ibp in 1925 was a highlight in the aftermath of the Great War and amidst the initial hopes raised by the League of Nations. At the same time Grotius found a formidable rival in Francisco de Vitoria, who was declared by same to be the real ‘founder’ of international law (as Alberico Gentili had already been to same degree earlier on). The tercentenary of Grotius’s death in 1945 was overshadowed by more pressing preoccupations, but the year after saw the publication of Hersch Lauterpacht’s immensely influential essay on the ‘Grotian Tradition’; it had in fact more to do with Lauterpacht’s ideals than with Grotius’ s own thought, but it was itself at the origin of an Anglo-Saxon tradition of remembering and mythifying Grotius. The quatercentenary of Grotius’s birth, in 1983, inaugurated the current much broader interest in Grotius, including critical appreciations of his advocacy of Dutch colonialism behind the fig-leaf of Mare liberum and contractual freedom. All this is perceptively and elegantly set out by the author, who somewhat facetiously ends by suggesting that ‘the history of international law as a research field should now take a break from Hugo Grotius’ (p. 579); a wish that threatens soon to be frustrated by another quatercentenary in the offing: ibp, 2025!

The ‘Grotian Tradition’ is at the centre of the volume’s end chapter in which William Bain deals with Grotius and political science theory. He shows how the idea of a ‘Grotian school’, steering an uneasy yet reassuring middle course between naturalism and positivism, arose among late nineteenth-century British teachers of international law, percolating from Oppenheim to Lauterpacht. This legal narrative gathered full momentum once it was taken up by twentieth-century political scientists like Martin Wight and Hedley Bull, for whom the Grotian ‘broad middle way’ lay between ‘realists’ like Hobbes and ‘idealists’ like Kant. The essence for them of a Grotian outlook on international society was to conciliate state freedom with ‘the common interest of a greater whole’ (p. 600). Yet the normative basis of this common interest remained largely in the shadow, and this is what Bain endeavours to bring to light by looking into the real, not the mythical Grotius. In his opinion, this basis can only be found in Grotius’s theological conceptions: ‘a genuinely Grotian theory of international society follows from Grotius’ theology’ (p. 614). This statement – which echoes Meirav Jones’ chapter earlier in the volume – applies above all to Grotius’s ius naturae, much less to his ius gentium, which is purely human-made, contrary to what is claimed by Bain in the almost beatific vision that concludes his chapter. In any event, he is offering a valuable antidote against the time-honoured, ritually recited but highly questionable cliché of Grotius having ‘secularized’ natural law in order to make it acceptable to all the conflicting religious factions of his day. As correctly observed by the editors of the volume in their well-tempered introduction, his work may have in the long run contributed to such a result, which however was definitely beyond the intent of its author.

Before ending these rather sketchy and somewhat unbalanced glosses, just a word on the quotations from ibp. The translation used in most chapters, so we are told by the editors (p. 11), is the one prepared in 1925 by Francis W. Kelsey and some collaborators for the edition of ibp in the series of The Classics of International Law. In fact, quite a few authors turned to the translation published in London in 1738, as re-edited in 2005 by Richard Tuck in the Natural Law and Enlightenment Classics series of the Liberty Fund. Considered in themselves, neither of them is entirely satisfactory. But as a source of quotations in a modern English text, the Liberty Fund version is particularly out of place; not on account of intrinsic qualities (on which I cannot pronounce, having never checked any part of it against the original), but simply because of its clumsy antiquated language (that sounds so much older than Grotius’s ever fresh Latin). Reading Grotius in that translation may procure a literary pleasure with a quaint charm of its own (just as reading Plutarch in North’s translation, as I recently happened to do). But quoting Grotius in such an outdated rendering is quite a different matter. Parachuted into a modern text, these quotations appear imbued nowadays with a sort of sacramental solemnity, contrary to what they must have looked like in their time, three centuries ago, when the work was ‘Done into English by several Hands’ (i.e. by John Morrice and two collaborators, in 1715, their translation being reprinted in the 1738 edition together with the major footnotes of Jean Barbeyrac’s 1724 French translation). What had by then been ordinary language finds itself raised to an unintended dignity and invested as it were with the authority of a holy writ. This is not at all what is expected from an adequate translation. Rather, its prime virtue, apart from being accurate, should be to make itself forget; which is only possible in our case with an up-to-date rendering of Grotius’s sober Latinity. The Kelsey translation does by and large answer this ‘atmospheric’ requirement, but it is time and again inappropriate or even inaccurate. As a pis-aller, I nevertheless suggest to fall back on that version, but only with the corrections called for after confronting it with the original Latin. An amended English translation might be envisaged. If so, it should be based ideally on the 1939/1993 Editio maior, as adumbrated by the editors (p. 11). Why not muster some courage and try to get it done by 2025?


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