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A Normative Approach to War: Peace, War, and Justice in Hugo Grotius.

Once the honorific "father of international law," Hugo Grotius remains a figure of considerable interest--not only to legal scholars but to students of international relations and the history of political thought. Grotius published the first edition of his great treatise, De jure belli ac pacis libri tres (hereafter JBP) in 1625, during the last and greatest of Europe's religious wars. His aim was to identify all legal rules (laws are rules of moral action imposing obligation) that might limit both the occasions for, and the effects of, organized violence, whether public or private, just or self-serving, and present those rules in "a comprehensive and systematic manner" (JBP proleg. 1, 1.9.1). If his ambitions transcended the particulars of sectarian conflict, so, too, did the Thirty Years War and the peace that followed. Grotius inevitably came to be identified with the advent of the Westphalian system of international relations and a secular, rationalist worldview.

Was Grotius an early modern thinker? His stature in Western thought for the century-and-a-half after his death would seem to suggest as much. So do frequent contemporary allusions to a "Grotian tradition." Many of those who have examined his work are less sure. The more carefully scholars read JBP, the more cautious become their claims on the author's behalf.

A Normative Approach to War is the most careful, sustained reading of JBP in English. Its authors are six Japanese scholars, all members of a research group that began studying Grotius in 1976. A Japanese version of the book appeared in 1987. The English version is updated and abridged; the translation, by Sakamoto Mikio with assistance from James Crawford, is clear and as graceful as the subject permits. The book's authors follow the complete text of JBP as Grotius presented it, for convenience dividing the material into nine chapters bracketed by the editor's introduction and conclusion. Clearly a team effort, the book exhibits an exceptionally coherent perspective.

The team's members see Grotius as less modern than the many scholars writing in English who find Grotius a right theorist: "Unlike Hobbes, Locke and Rousseau, Grotius constructed his theory of law without seeking to dismantle the household and the various intermediate corporate bodies. He adhered to the traditional view of man (as zoon politikon) that had prevailed in Europe since Aristotle, assuming the existence of multi-layered independent powers. His concept of natural law tended to justify existing political institutions rather than criticize them from the point of view of justice". Although Grotius took issue with Aristotle's conception of justice and distanced himself from the Scholastics, he was uncritical of the Aristotelian tradition in general. This interpretation finds support in an extensively cited literature from continental Europe and Japan.

In one respect, Grotius seems modern--not early modern but fully modern. Despite some principled equivocation (JBP proleg. 16, 57), "considerations of utility and practicality underlie the whole structure of JBP". As the Japanese team shows, Grotius' pragmatism stems from his desire to limit the horrors of war by whatever means possible--law in every conceivable manifestation, appeals to conscience, authority and tradition, considerations of prudence. Grotius made his system as comprehensive as he could, indiscriminately adding categories, spinning distinctions, and invoking authorities. By the Cartesian standards of the early modern era, he also made his system a shambles.

Viewing Grotius as practical but not very modern, the Japanese team translates key terms from Grotius' Latin with due caution. They find that Grotius seems to have construed summum imperium "as a matter of relative priority in a hierarchy of bearers of imperium on various levels". Their Grotius is no Bodin. Thus, unlike the standard English translation of JBP, they refrain from using Bodin's term, "sovereignty," except to show that Grotius' resistance to "popular sovereignty" makes him even less an Althusius. By translating the term civitas as "state," the team does yield to anachronism, despite a sensible discussion of Grotius' corporate conception of "civil society," a term he used interchangeably with civitas.

For many scholars, the proof of Grotius' modernity is his conviction that there would be a law of nature by which to govern human affairs "even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God" (JBP, proleg. 11; cf. Tanaka's article, pp. 26-29, 74-77). If, by this remark, Grotius began the process of secularizing natural law, which Hobbes and Pufendorf soon completed, this was hardly his intent. Rather, it was to support a proposition with an ancient pedigree: human beings have "an impelling desire for society," what "the Stoics called, 'sociableness"' (JBP, proleg. 6). Sociableness necessitates society, and this makes human nature "the mother of the law of nature." From this position (which is radical in its implications), Grotius could conclude that all law, including law that human beings voluntarily create for themselves, "derives its force from the law of nature" (proleg. 16).

According to the Japanese team, volitional law and natural law "often overlap and penetrate each other". Many writers take Grotius at his word and separate natural law from volitional law (divine and human) (JBP, proleg. 1), as if Grotius were eclectically naturalist and positivist. Insofar as all law derives its force from human nature, it hardly seems "a methodological weakness" for Grotius to have used the same inductive method to determine the content of natural law and volitional law. On the evidence, human nature is exceedingly plastic.

Starting with the necessity of self-preservation, an otherwise plastic human nature yields a hierarchy (though hardly a system) of law. First is mandatory natural law, then a permissive domain of natural law, itself possessing four levels of flexibility that make it effectively indistinguishable from volitional law. The latter includes municipal law, some rules of which are common to many peoples (jus gentium), and law "that in the strict sense concerns the mutual society among nations" (mutua gentium inter se societas). Finally, there is what today we might call "soft law" in the form of precepts advising humanity and moderation. As several team members intimate, Grotius had no independent, "Grotian" conception of "international society." Given human nature, if there is law among nations, then there is a nominal society among them as well. Grotius canvassed not just the law of nations but law in all its variety, for one purpose: where there is law, there are limited just causes for war and unlimited opportunities for its mitigation.

NICHOLAS ONUF Florida International University
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Author:Onuf, Nicholas
Publication:American Political Science Review
Article Type:Book Review
Date:Sep 1, 1994
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