July 18, 1980

NEW SOLIDARITY

Page 5

Grotius and the Sovereignty of Nations

by Edward Spannaus

Frontispiece to a Latin edition of Grotius's De Jure Bella ac Pacis, published in Amsterdam in 1670. The three central figures represent War (on the left) next to Peace, with Justice presiding over them both.

Without absolute national sovereignty a nation cannot be a republic. Nor can a country lacking sovereignty have any possibility of fulfilling the purposes of a republicthe advancement of the intellectual and moral level of its citizens. If control of a nation's destiny lies outside its own borders, individual citizens of such a country can play no meaningful role in determining the parameters of the nation's technological progress and economic development. Sadly, this is the fate of nations today under the rule of the International Monetary Fund, under the recommendations of the Brandt Commission, or succumbing to the "international law" of the 20th century as promulgated by the United Nations. In the face of "one-world" notions of limited sovereignty, the contrary conception of a community of sovereign nation-states, has not been totally extinguished. It persists in the recently asserted independence of France and West Germany from the British-U.S. axis; and it survives strongly as a tradition of certain factions in Mexico, as highlighted by recent reports in this newspaper. It is a conception once dominant in our nation, which sorely needs reviving as the basis for a positive United States nationalism which comprehends America's unique, leading role in the world community of nations. The juridical basis for the conception of national sovereignty was first fully developed in modern times by Hugo Grotius. Grotius, the leading writer of the 17th century on natural law, was also, unbeknownst to most Americans today, a leading influence on the creation of the United States. Our Constitution owes far more to the continental European natural law tradition of Grotius, Pufendorf, Leibniz, and Vattel than it does to the "Enlightenment" philosophers Locke, Montesquieu, or Rousseau. Every statesman and educated leader of the American Revolution had thoroughly studied Grotius, and his conception of the law of nations and national sovereignty reverberate throughout the Constitution and early state papers. Grotius's Neoplatonic development of natural law made him one of the principal targets of "Enlightenment" luminaries such as Rousseau, whose Social Contract is largely a polemic against Grotius. Voltaire, another "Enlightened" dimwit, penned the following drivel:

Nothing will tend to make a mind inaccurate, dull, confused, uncertain than the reading of Grotius, Pufendorf, and almost all the commentators on public law. The European oligarchy has never conceded Grotius's theory of sovereignty, but nevertheless they have been unable to ignore it. Accordingly, Grotius is proclaimed as "the Father of International Law,"although the international law they speak of is diametrically opposed to the ideas of Grotius. Then, out of the other side of the oligarchy's mouth, he is damned as the father of the theory of national sovereignty which, it is lied, has led directly into the rise of totalitarian states such as Mussolini's Italy or Hitler's Germany. During the period between the first and second world wars, a British law professor wrote: Whatever may have been the case in the past, the theory of sovereignty seems, at the present day, to be one of the greatest stumbling-blocks in the path of international progress. Its appearance in the international world is due pre-eminently to two men, Bodin and Grotius. Bodin's motives may well be suspect. Those of Grotius were entirely honorable, and were at first crowned with brilliant success. . . . But the theory on which [Grotius's conception of sovereignty] was founded was, in fact, a toleration of anarchy; and, in due time, it collapsed, with results which are painfully obvious. It is hardly too much to say that, ever since the Great War, the world has been struggling to escape from the theory of sovereignty in international affairs. . . . To call Grotius the founder of a theory of anarchy in international affairs is an unspeakable slander. The creation of the republic of the United States provided the clearest example of the type of state which Grotius envisioned: a sovereign nation state, guided by natural law, existing within a community of nations bound by an unwritten, higher law above the national law of each state. This was Grotius's alternative to the anarchy raging in Europe during the early 17th century, anarchy which reappeared with the Jacobin "mobocracy" of the French Revolution, and which is being resurrected today with Jesuit-inspired fundamentalist Christian and Moslem "holy wars."

Platonic Scholar Grotius was born as Huig de Groot in Delft, the Netherlands, in 1583. He came from a family of scholars at Leyden Universitya major hotbed of Platonic thinking and study of the Arab Renaissance. His uncle, Cornelius de Groot, was Professor of Philosophy and Law at Leyden and was reputed to have known all of Plato's works by heart. His father Jan was a collaborator of the great mathematician and engineer Simon Stevin, and collaborated with Stevin in experiments explicitly conducted for the purpose of refuting Aristotle. At the age of 15 Grotius accompanied the Dutch republican leader Oldenbarneveldt to the court of Henry IV of France to dissuade Hugo Grotius Henry from making a separate peace with Spain. At the age of 18, Grotius composed his poem Adamus Exul, which had a profound effect upon Milton and his Paradise Lost. Grotius first came to international attention with the publication of Mare Liberum (The Free Sea) in 1609, a polemic against the Portuguese (and Spanish) claim of exclusive right to trade routes to the East Indies. Grotius argued that the seas are open to navigation and trade by all peoples, and that they are under the exclusive sovereignty of no one nation. Commercial intercourse between nations is a necessity, and therefore natural law dictates that nations must be free to develop commerce and trade with one another. The most famous attempt to refute Grotius was John Selden's Mare Clausum (The Closed Sea), written in 1635 as a defense of the claim of British sovereignty over the waters surrounding England. The major work for which Grotius is known is his De Jure Belli ac Pacis (On the Law of War and Peace) published in 1625. It was not the first work to be written on the Law of Nations in modern times, but as Grotius himself said, it was the first adequate and systematic treatment.

Grotius' Theory of Sovereignty In De Jure Belli ac Pacis, Grotius firmly established the basis in natural law for the rise of the nation-state. With the Holy Roman Empire crumbling, and the Christian church rent with schism, it was necessary to supplant the previous authority of the church with another source of moral authority for the governance of states. At the same time that the rise of the nation-state was still encountering resistance from above, in the form of the notion of a supranational religiouspolitical authority above the sovereignty, the idea of the sovereign state was also under attack from belowthat is, from Jesuit-directed mobs who used the notion of "popular sovereignty" to undermine the authority of the sovereign. Grotius's theory of sovereignty therefore had to dispose of attacks and objections from both levels. Grotius first of all establishes that the nation-state itself, not an empire above states, is the subject of sovereignty. Under the conditions of the splits and splintering of the church and the rise of sovereign states, there could no longer be any single temporal authority binding upon all nations. "No one can call himself emperor of the whole world," declared Grotius, in explaining that conditions had changed beyond those envisioned by Dante, who had called for a universal monarchy: based on republican principles, but whose development of Italian represented a giant leap in the creation of the modern nation-state. If a state or a ruler is to be regarded as sovereign, there can be no higher authority above him. "That power is called sovereign 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." Yet this does not imply anarchy, that the sovereign is free to do whatever he pleases. As Grotius repeatedly stresses, the sovereign is morally obligated by natural law, which he is bound to obey in the governance of his state and in dealings with other states. Grotius identifies natural law as follows: The law of nature is a dictate of right reason, which points out that an act, according as it is nor is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God.

Grotius is properly less concerned with the form of government than with the requirement that the sovereignhereditary or electedbe guided by natural law. The early 17th century laid the groundwork for the rise of the republican nation-state, but first the nation-state itself had to be built by the humanist prince. Grotius was addressing his argument to the sovereign prince or monarch whose taskthe governing of menis the most sacred of responsibilities. Grotius expressed this beautifully in his conclusion to the De Jure Bellae ac Pacis: And may God, to whom alone it belongs to dispose the affections and desires of sovereign princes and kings, inscribe these principles upon their hearts and minds, that they may always remember that the noblest office, in which man can be engaged, is the government of men, who are the principal objects of divine care. Grotius's objective is the creation of sovereign nation states guided by reasonreason embodied in that period in the person of the sovereign bound by natural law. This is the indispensable condition for bringing the masses of the people into a condition of reason. Grotius therefore had to join battle against the Jesuits, who used an insidious combination of popular sovereignty and papal infallibility to attack the sovereignty of the nationstate. For on the one hand, the Jesuits were the champion of "popular sovereignty"the notion that "the people", meaning the mob, could overthrow a ruler at their whim. (Today, the same idea stands behind "liberation theology." On the other hand, the Jesuits attacked the sovereign "from above" with the notion that the Pope and the Catholic Church were an authority above the sovereign. Thus regicide could be justified on both the grounds of "the people" overthrowing a tyrant, and of "true believers" ridding the world of a heretic. The modern republican nation-state could have never arisen had such Jesuitical notions prevailed throughout Europe. Conscious of this, Grotius is unswerving in his attacks on the mob rule and "popular sovereignty" that was later to find such bloody expression in the French Revolution. He outright rejects the notion "that everywhere and without exception sovereignty resides in the people, so that it is permissible for the people to restrain and punish kings whenever they make bad use of their power. How many evils this opinion has given rise to, and can even now give rise to sinks deep into men's minds, no wise person fails to see. . . ."

Grotius's defense of sovereigntyfor which he was roundly attacked by Rousseau and otherswas a defense of government based on reason as opposed to government by the mob. If, in fact, the right of resistance should remain without restraint, there will no longer remain a state, but only a nonsocial horde, such as that among the Cyclopes, among whom Each bears rule O'er wife and offspring. A mob confused, where none the other heeds. Grotius concentrates on the nature of state sovereignty and its indispensable grounding in natural law, in order to reintroduce the rule of morality and of a higher law into relations between states. The Reformation and the CounterReformation, the intrigues of the Jesuits, and the zeal of Protestant sects had given rise to the unspeakable cruelties of the Thirty Years War. Torture and mutilation were commonplace, limbs of children were hacked off and nailed to church doors, and mass exterminations of entire villages presaged the 20th-century atrocities of the Nazis. In the Prolegomena to De Jure Belli ac Pacis, Grotius proclaims the urgency of civilizing relations between states: Being fully convinced that there is some law common to all nations which applies to both the initiation of war and to the manner in which war should be carried on, there were many and weighty considerations impelling me to write a treatise on the subject of that law. I observed everywhere in Christendom a lawlessness in warfare of which even barbarous nations would be ashamed. Nations would rush to arms on the slightest pretext or even without cause at all. And arms once taken up, there would be an end to all respect for law, whether human or divine, as though a fury had been let loose with general license for all manner of crime. No small part in this "rush to arms" was played by the official policy of the Jesuit-controlled Papacy that there could be no peace between Catholics and heretics, and that "no faith is to be kept with heretics." Grotius's repeated emphasis on the importance of good faith in dealings between sovereigns and states is a frontal attack on the Catholic-Jesuit policy of that period. For it was said at the time that "peace between a Catholic and a heretic was as impossible as an agreement between darkness and light, or heat and cold."

Ribadeneira, a prominent Jesuit of the time, expressed this policy as follows: "If Catholics sometimes make agreements with Protestants, it is solely in order to gain time and get forces together with which to overwhelm them." The prevailing policy of the times was that treaties could be broken and oaths annulled at will. The possibility of the emergence of a community of sovereign republics (a conception which later reached its highest development with Leibniz), depended in large part upon overcoming such practices. "Good faith," wrote Grotius, "is not only the principal hold by which all governments are bound together, but is the keystone by which the larger society of nations is united." Defining Natural Law To establish a real basis for peace, the sovereignty of states had to be firmly grounded in natural law, but natural law then had to be put on an ecumenical basis, rescued from the prevalent Thomistic and Jesuitical versions. This Grotius did by forcing his audience to rise above the muck of the time, to look beyond the shambles of early 17th century Europe, to the universal principles underlying natural law. Pedagogically, Grotius illustrates the principles of natural law and the law of nations with the materials of classical antiquity, never once citing any contemporary situation. Additionally, he announces that he will rely on "poets and philosophers"a feature of his work which petty 20th century minds enjoy describing as "naive." Grotius's first task is to supersede the Stoic, Roman law version of natural law, which defines that law as the law common to men and beasts. The distinction found in the books of the Roman law, assigning one unchangeable right to brutes in common with man, which in a more limited sense they call the law of nature, and appropriating another to men, which they call the law of nations, is scarcely of any real use. Grotius thus throws out the Roman notion that the law of nature (ius naturale) is the "naturalistic" law applying to men and beasts alike, and that the law of nations (ius gentium) is that which applies to humans. It is reason which distinguishes man from animals, and only a being capable of reason can use or understand law. Law, therefore, must be in accordance with human intelligence and reason, and this is man's natural state. When Grotius talks of a state of nature he absolutely does not mean the mythical, bestial "state of nature" of a Hobbes or Rousseau. Man's "natural" condition is a

state of reason and social cohesiveness. "Love," Grotius had written years earlier, "is the first principle of the whole natural order." Love, then is two-fold: love for oneself, and love for others. . . . This manifestation of love burns most brightly in man, as in one who is particularly endowed not only with the affections shared in common with other creatures but also with the sovereign attribute of reason: that is to say, as in a being derived from God himself, who imprinted upon man the image of His own mind. (Prolegema, De Jure Praedae) This beautiful passage recalls another written by Grotius almost a quartercentury earlier in his poem Adamus Exul: The Almighty Father shaped the human form, and quickened The body with his breath; nor gave he life alone And lively sense, but deep within the human mind He stamped at last the glorious image of Himself. And also: God is Himself a Mind, that fills the universe And dominates it allan Essence uncreated and destined to endure. The Law of War and Peace Having freed the conception of justice from its Aristotelian straitjacket, Grotius shows that true justice must be the controlling principle of both war and peace. To treat what was morally permissible in the conduct of war, it was first necessary to inquire into the justice of war itself. Grotius was no pacifist: in fact he carefully explains the conditions of self-protection, or remedying a wrong, or punishing a wrong-doer among nations, which make war at times necessary. He therefore situates war within Saint Augustine's dictum that "peace is not sought that war may be waged, but war is waged that peace

may be sought." In this Grotius and Augustine echo Plato's dialogue The Laws, in which it is stated: No one can be a true statesman . . . who looks only, or first of all, to external warfare; nor will he be a sound legislator who orders peace for the sake of war, and not war for the sake of peace. (Recall the quotation from the Jesuit Ribadeneira cited above, in which peace was sought precisely for the sake of war.) There exists then, a law of war as well as a war of peace. As for the 17thcentury brigands who held that war and law were incompatible, Grotius refutes this idea, which found justification in the Roman legal maxim inter armas leges silent. Least of all should be admitted which some people imagine, that in war all laws are in abeyance. On the contrary, war ought not to be undertaken except for the enforcement of rights; when once undertaken, it should be carried on only within the bounds of law and good faith. . . . Let the laws be silent then, in the midst of arms, but only the laws of the State, those that the courts are concerned with, that are adapted only to a state of peace; not those other laws, which are of perpetual validity and suited to all times. Between enemies written laws . . . are not in force, . . . but unwritten laws are in force. . . . Prolegema, De Jure Belli ac Pacis De Jure Belli ac Pacis is written in three books. Book I is the inquiry into the lawfulness of war and the nature of sovereign power. Book II is an inquiry into the causes of war, including the rights and obligations associated with territory and property, the making and breaking of agreements, contracts, and treaties, the rights of embassy and ambassadors, and the right of punishment. Punishment of enemies is not to be undertaken for trivial reasons, or upon the mere suspicion that an enemy intends to commit an aggression. "All punishments must have in view either security against future aggressions, reparation for the injury done to national or private honor, or it must be used as an example of awful severity."

Here again Grotius stresses that sovereignty is not anarchy, that it is not license to flaunt the rights of mankind, free from any external sanction. Kings and those who are possessed of sovereign power have the right to exact punishment not only for injuries affecting immediately themselves or their own subjects, but for gross violations of the law of nature and nations, done to other states and their subjects. For the liberty of inflicting punishment for the peace and welfare of society, which belonged to individuals in the early ages of the world, was converted into the judicial authority of sovereign states and princes; a right devolving upon them not only as rulers of others, but as subject to the control of no earthly power. This provides the sufficient juridical authority for sovereign states to intervene against a Hitler or a Pol Pot regime "for gross violations of the law of nature and nations" without the requirement of a supranational "international law" which infringes the sovereignty of law-abiding states. On the other handand this was a major breakthrough for the 17th century Grotius outlaws religious wars and crusades. Himself a devout Christian and noted theologian, he wrote: From the kind of evidence on which Christianity rests, it is plain that no force should be used with nations to promote its acceptance. . . . Christ, being the author of a new law, will have no one brought to embrace his doctrine by the fear of human punishments. But if Christianity should not be forced upon a people, neither should its teachers be subject to religious prosecution. Nor should the punishment of "heretical" Christians be allowed. "It seems unjust to persecute with punishments those who receive the law of Christ as true, but entertain doubts and errors on some external points." Having explored the lawfulness and justifications for undertaking war, Grotius then presents in Book III his conclusions as to what is lawful in the conduct of war. The standpoint from which he writes is that of "winning the peace," of using necessary force to subdue and incapacitate an enemy force, while avoiding wanton killing of persons and unnecessary destruction of lands and property. The means used in war, he explains, or in the pursuit of any object, derive their moral character from the nature of the end to which

they lead. Wars necessarily employ force, violence, and even deception. Yet Grotius is careful to distinguish the use of deception to trick an enemy, while maintaining good faith with respect to the observance of truces, treaties, safe conduct and free passage, and the like. If rulers do away with good faith, "they will be like wild beasts, whose violence all men fear." An 'American' Founding Father The Peace of Westphalia, that ended the Thirty Years War, which Grotius did not live to witness, was the 17th century's monument to the influence of Hugo Grotius, ending as it did the era of religious wars, and providing the juridical framework for the creation of a community of sovereign nationstates. The American Revolution and the creation of the United States Constitution are another such moment, representing the culmination of the 17th and 18th century battle to apply the rule of reason to the governing of states and to relations between states. It was the Grotian view of natural law and the law of nations, as further developed by Pufendorf, Leibniz, and Vattel in particular, which guided the creation of the United States Constitutionnot the Rousseauvian "state of nature" or Benthamite "international law." This outlook informed George Washington's great Valedictory Address, in which he urged the new nation to pursue a politically neutral and independent course in foreign relations, while ensuring that existing engagements "be fulfilled in perfect good faith." It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements. Harmony, and a liberal intercourse with all nations, are recommended by policy, humanity, and interest. The duty of holding a neutral conduct may be inferred, without anything more, from the obligation which justice and humanity impose on every nation, in cases in which it is free to act, to maintain inviolate the relations of peace and amity toward other nations.

What Washington wanted to avoid is exactly what has come to passthat our precious national sovereignty has been subordinated to the interests of another nation, that is, Great Britain, or the ruling oligarchy of that nation. Chief Justice John Marshall, who led the U.S. Supreme Court from 1801 to 1835, determined that the Grotian view was explicitly part of the developing constitutional law of our republic. On many occasions Marshall referred to "those wise and learned men, whose treatises on the laws of nature and nations have guided public opinion. . . . "Natural law" is addressed to the judgement of the sovereign," noted Marshall, and the law of nations operates through the sovereign, not directly upon a nation. In one of his more famous decisions, he expressed the Grotian view quite clearly: No principle of general law is more universally acknowledged, than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule upon another. . . . As no nation can prescribe a rule for others, none can make a law of nations. . . . In an era when our nation has lost its sense of moral purpose as a nation among nations, when national sovereignty is once again under attack from every side, and when "liberation theology" and "jihad" threaten to plunge the world into a new dark age, the work of Grotius shines forth like a beacon across three and one-half centuries, to remind us of a forgotten, more noble heritage.