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Grotius 1. Hugo Grotius [1583-1645). [1583-1645) entered the University of Leiden when he was just eleven years old. There he studied with some of the most acclaimed intellectuals in northern Europe, including Franciscus Junius, Joseph Justus Scaliger, and Rudolph Snellius.[1]

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grotius 1
Grotius 1
  • Hugo Grotius [1583-1645)

[1583-1645)

entered the University of Leiden when he was just eleven years old. There he studied with some of the most acclaimed intellectuals in northern Europe, including Franciscus Junius, Joseph Justus Scaliger, and Rudolph Snellius.[1]

In Holland, Grotius earned an appointment as advocate to The Hague in 1599 and then as official historiographer for the States of Holland in 1601.

Grotius was sentenced to life imprisonment in Loevestein castle.

He was imprisoned in 1618 for his views on a theological point. “In 1621, with the help of his wife and maidservant, Grotius managed to escape the castle in a book chest and fled to Paris. In the Netherlands today, he is mainly famous for this daring escape.”

grotius 2
Grotius 2
  • Our selection is from his masterpiece,
  • “The Rights of War and Peace, including the Law of Nature and of Nations”
  • The case is interesting because nations (and privateers on the seas) “are held together by no common bond of civil laws to decide their dissensions”
  • Grotius repeats the maxim of Aquinas, that “war is undertaken for the sake of peace”
  • “and there is no dispute, which may not give rise to war
  • from which he concludes that “it will be proper to treat all such quarrels, as commonly happen, between nations, as an article in the rights of war:
  • and then war itself will lead us to peace, as to its proper end.”
grotius 3
Grotius 3
  • So the stage is set for an inquiry into the settling of disputes among independent people pursuing their own interests as best they can
  • “War” is “ a state of contention”
  • Right is whatever is not unjust
  • and: “any thing is unjust, which is repugnant to the nature of society, established among rational creatures.”
  • e.g.: “ to deprive another of what belongs to him, merely for one's own advantage, is repugnant to the law of nature”
  • , as Cicero observes ... [saying] that, if the practice were general, all society and intercourse among men must be overturned. ...
  • Two kinds of right: Right, strictly taken, is twofold:
  • the one, private, established for the advantages of each individual
  • the other, superior, as involving the claims, which the state has upon individuals, and their property, for the public good.
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Grotius ------ 4
  • A major insight about justice:
  • permission is no act of the law, but only its silence
  • however it prohibits any one from impeding another in doing what the law permits. ... [IX]
  • Natural right is the dictate of right reason
  • Thus property - was at first a creature of the human will.
  • But, after it was established, one man was prohibited by the law of nature from seizing the property of another against his will. ...
  • [? How does that square with this next:]
  • the Law of Nature is so unalterable, that it cannot be changed even by God himself.
  • For although the power of God is infinite, yet there are some things, to which it does not extend, because the things so expressed would have no true meaning, but imply a contradiction.
  • [N]o beings, except those that can form general maxims, are capable of possessing a right ...
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Grotius ------ 5
  • CHAPTER I.
  • Defence of Person and Property.
  • Just war begins in Injury:
  • The justifiable causes generally assigned for war are three:
  • 1 - defence,
  • 2 - indemnity, and
  • 3 - punishment,
  • ..... A just cause then of war is an injury, which though not actually committed, threatens our persons or property with danger.
  • In strict justice, it cannot be denied that we have a right to kill a robber, if such a step is inevitably necessary to the preservation of our property.
  • We may defend ourselves
  • only the sovereign power may punish.
  • But: not a just cause of war that the other guy is getting bigger than you! (“whose increasing greatness awakens her alarms.”)
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Grotius ------ 6
  • CHAPTER I (continued)
  • things passed from being held in common to a state of property
  • It was not by the act of the mind alone that this change took place.
  • [The trouble is, we don’t know other people’s minds...]
  • Property therefore must have been established either
  • by express agreement, as by division,
  • or by tacit consent, as by occupancy.
  • First Occupancy as the basis of just property:
  • For as soon as it was found inconvenient to hold things in common
  • it is natural to suppose
  • it must have been generally agreed, that
  • whatever any one had occupied should be accounted his own.
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Grotius ------ 7
  • CHAPTER I (continued)
  • some things are impossible to be reduced to a state of property,
  • the Sea: it’s so big “ as to be sufficient for the use of all nations”
  • occupancy can never subsist, but in things that can be confined to certain permanent bounds... [the sea doesn’t stay put!]
  • extreme necessity - “ the original right of using things, as if they had remained in common, must be revived”
  • Grotius notes Aquinas’ view: what is taken in extreme necessity isn’t to be reckoned Theft
  • Grotius adds that this rule is
  • “ not founded, as some allege, solely upon the law of charity
  • -- but upon the original division of lands among private owners, which was made with a reservation in favour of the primitive rights of nature.
  • [q: how did he know that?]
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Grotius ------ 8
  • CHAPTER I (continued)
  • Now this indulgence must be granted with precautions and restrictions, to prevent it from degenerating into licentiousness.
  • And of these precautions,
  • (1) the distressed party to try every mode of obtaining relief
  • (2) this plea of necessity cannot be admitted, where the possessor is in an equal state of necessity himself.
  • [Note that this appears to imply that we must continue to help until we are nearly in a similar condition ourselves!]
  • (3) the party thus supplying his wants from the property of another, is bound to make restitution, or give an equivalent to the owner, whenever that is possible.
  • [and what if it isn’t?]
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Grotius ------ 9
  • CHAPTER I (continued)
  • 1. in a just war, any power has a right to take possession of a neutral soil; if there be real grounds, and not imaginary fears for supposing the enemy intends to make himself master of the same,
  • especially if the enemy's occupying it would be attended with imminent and irreparable mischief to that same power.
  • But in this case the restriction is applied that nothing be taken but what is actually necessary to such precaution and security.
  • 2. There is another right, which is that of making use of the property of another, where such use is attended with no prejudice to the owner.
  • 3. [controlling foreign trade:] May one nation lawfully agree with another to exclude all nations but herself from purchasing certain productions, which are the peculiar growth of her soil?
  • [Yes] - if the purchaser intends to supply other nations with those articles at a reasonable price. For it is a matter of indifference to other nations of whom they purchase, provided they can have a reasonable supply for their wants.
  • Nor is there anything unlawful in allowing one people an advantage over another in this respect
  • ... such a monopoly is no way repugnant to the law of nature, though it may be sometimes for the interest of the community to prohibit it by express laws.
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Grotius ------ 10
  • CHAPTER II (continued)
  • If you make it, and the materials were common, it’s yours; but if they belonged to someone else, then the new production is not yours.
  • Sovereignty, says Seneca, belongs to Princes and property to individuals.
  • Things which have had an owner, but have ceased to have one, become subject to the right by original acquisition. They ... have returned to the original state of common stock.
  • But at the same time it is proper to observe, that
  • sometimes the original acquisition may have been made by a people or their sovereign, in such a manneras to give them or him not only those pre-eminent rights which constitute prerogative, but also the full title of property... [what ‘manner’ is that??]
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Grotius ------ 11
  • CHAPTER II (continued)
  • IV
  • Long possession makes one the owner
  • But suppose long claimed possession with no use made of it?
  • The effect of right which depends upon a man's intentions can never follow from a bare conjecture of his will
  • Thus the person, who knowing of an act, and being present at the commission of it, passes it over in silence, seems to give his consent to it ..
  • uninterrupted possession, against which no claim has been asserted, will entirely transfer such property to the actual possessor
  • [whereas] a transitory possession creates no title. ..
grotius 12
Grotius ------ 12
  • CHAPTER IV (continued)
  • May, by desertion, persons yet unborn be deprived of their rights?
  • Yes! - “If we maintain that they may not, the rule already established would be of no avail towards settling the tranquillity of kingdoms, and security of property.”
  • To clear up this point, we must observe that no rights can belong to a person before he has any existence ...
  • The Sovereign is above the law ..
  • to make a law binding upon any one, it is requisite that the legislator should possess both power and will.
  • A legislator is not bound by his law, as by the irrevocable and unchangeable control of a superior
  • Yet a legislator may be bound by his own law, not directly as a legislator, but as an individual forming part of the community ...
  • - the right to property may be lost by neglect
grotius 13
Grotius ------ 13
  • CHAPTER X
  • Restitution:
  • it is an established rule of society among the owners, that the person, who had in his possession anything belonging to another should restore it to the lawful proprietor.
  • the person, who has become richer by that property, of which the rightful owner has been dispossessed, is bound to make him reparation in proportion to the benefit, which he has derived from his property.
  • In the next place, a bona-fide possessor of a thing is bound to a restitution of the fruits or profits thereof remaining in his hand...
  • [all of them? What if the interloper was a better businessperson?]
  • the person that has bought a thing of one, who is not the owner, cannot return it to that seller
grotius 14
Grotius ------ 14
  • if any one is in possession of a thing, whose real owner is unknown, he is not naturally, and necessarily bound to give it to the poor; although this may be considered as an act of piety, a custom very properly established in some places.
  • The reason of which is founded on the introduction of property, in consequence of which, no one except the real owner, can claim a right to any thing.
  • To the person therefore, who cannot discover such an owner, it is the same as if there really were none.
grotius 15
Grotius ------ 15
  • Chapter XII. Contracts
  • viii In all contracts, natural justice requires an equality of terms
  • This equality consists partly in the performance, and party in the profits of the contract, applying to all the previous arrangements, and to the essential consequences of the agreement.
  • As to an equality of terms previous to the contract, it is evident that a seller is bound to discover to a purchaser any defects, which are known to him, in a thing offered for sale;
  • a rule not only established by civil laws, but strictly conformable to natural justice. For
  • the words of agreement between contracting parties are even stronger than those, on which society is founded.
  • [I]t is not every degree of silence, which amounts to concealment; nor is one person bound to disclose every thing, which may be of service to another. Thus for instance, a man of science is not strictly bound to communicate to another that knowledge, which might redound to his advantage.
  • Contracts “require some closer and more intimate connection than bare goodwill to enforce their obligation...”
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Grotius ------ 16
  • In the principal act itself, the proper equality requires that no more should be demanded by either party than what is just.
  • For all promises or gifts, in these cases, are made with an expectation of receiving an equivalent in return...
  • [How would that be judged??]
  • The general demand for any thing, as Aristotle has clearly proved, constitutes the true measure of its value
  • the prices of things do not depend upon the humours and interest of individuals, but upon common estimation, that is, as he explains himself elsewhere, according to the worth which they are of to all.
  • Hence it is that things are valued in proportion to what is usually offered or given for them
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Grotius ------ 17
  • Monopoly:
  • not every kind of monopoly amounts to a direct violation of the laws of nature.
  • The Sovereign power may have very just reasons for granting monopolies, and that too at a settled price .
  • .. A monopoly also may, in some cases, be established by individuals, provided they sell at a reasonable rate.
  • But all combinations to raise the necessary articles of life to an exorbitant rate, ... are public injuries and punishable as such.
  • A way of preventing the importation of goods, or buying them up in order to sell them at a greater rate than usual, though the price, under some particular circumstances, may not seem unreasonable, is ... a breach of charity; though it come not directly under the prohibition of laws.
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Grotius ------ 18
  • money
  • -- its uses do not result from any value intrinsically belonging to the precious metals, or to the specific denomination and shape of coin,
  • but from the general application which can be made of it, as a standard of payment for all commodities.
  • For whatever is taken as a common measure of all other things, ought to be liable, in itself, to but little variation.
  • Now the precious metals are of this description, possessing nearly the same intrinsic value at all times and in all places....
  • XIX. interest
  • the arguments against do not “command our assent.”
  • ... bad argument: taking interest for the use of money is in its own nature barren and unproductive. For the same may be said of houses and other things, which are unproductive and unprofitable without the industry of man...
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Grotius ------ 19
  • Service charges
  • some kinds of [charges], look like usury, but aren’t:
  • commissions by bankesr, for instance - is not interest
  • but a compensation for his trouble, and for the risk and inconvenience he incurs, by the loan of his money, which he might have employed in some other lucrative way...
  • XXI. Those human laws, which allow a compensation to be made for the use of money or any other thing, are neither repugnant to natural nor revealed law...
  • In trading partnerships, where money is contributed by both parties; if the proportions be equal, the profits and the losses ought to be equal also.
  • Or, if unequal, the profits and the losses must bear the same proportion..
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Grotius ------ 20
  • Equality in business partnerships:
  • you can’t share in the gain, and be exempt from the losses.
  • Yet it may be so settled without any degree of injustice.
  • For there may be a mixed contract arising out of a contract of insurance in which due equality may be preserved, by allowing the person, who has taken upon himself the losses, to receive a greater share of the gain than he would otherwise have done.
  • But it is a thing quite inadmissible that any one should be responsible for the losses without partaking of the gains; for a communion of interests is so natural to society that it cannot subsist without it...
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Grotius ------ 21
  • The Interpretation of Treaties.
  • Good faith, observes Cicero, requires that a man should consider as well what he intends, as what he says.
  • But acts of the mind are not, of themselves visible
  • so - it is necessary to fix upon some determinate mark, to prevent men from breaking their engagements, by allowing them to affix their own interpretation to their words.
  • It is a right, which natural reason dictates, that every one who receives a promise, should have power to compel the promiser to do what a fair interpretation of his words suggests.
  • For otherwise it would be impossible for moral obligations to be brought to any certain conclusion. .
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Grotius ------ 22
  • The Interpretation of Treaties (continued)
  • Where we have no other conjecture to guide us,
  • words are not to be strictly taken in their original or grammatical sense, but in their common acceptation,
  • for it is the arbitrary will of custom, which directs the laws and rules of speech. ...
  • It is necessary to make use of conjecture, where words or sentences admit of many meanings... and whenever a seeming contradiction occurs in the expressions of a treaty.
  • For in that case we must try to discover such conjectures, as will reconcile, if possible, one part with another.
  • For if there be an evident contradiction, the contracting parties by their latter determinations must have intended to abrogate their former; as no one can design to make contradictory resolutions at the same time. ...
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Grotius ------ 23
  • The Interpretation of Treaties (continued)
  • Now the principal sources of conjecture are to be found in the subject-matter, the consequences, and the circumstances and connection.
  • From the subject-matter: example, the word ‘day’: if a truce be made for thirty days, here civil [24 hr. periods] and not natural days [hours of sunlight] are meant...
  • consequences, especially where a clause taken in its literal meaning would lead to consequences foreign or even repugnant to the intention of a treaty. ...
  • example: Brasidas, promising that he would evacuate the Boeotian territory, said he did not consider that as Boeotian territory, which he occupied with his army; as if the ancient bounds were not intended, but only what remained unconquered - an evasion, which entirely annulled the treaty.
  • circumstances or context - light may be thrown upon the meaning of an expression from the circumstance of its being used by the same person to express the same intentions on other similar occasions,
  • - and from its relation to what goes before,
  • - and what follows the place, where it stands.
  • For in all doubtful cases, we have reason to suppose that the contracting parties mean to be consistent with their former opinions and intentions. ...
grotius 24
Grotius ------ 24
  • The Interpretation of Treaties (continued)
  • regarding the rules themselves:
  • words are to be taken strictly in their popular meaning, and where they admit of exceptions, or have more significations than one, it is lawful to use that which is most extensive. ...
  • ... Again, we must never have recourse to a metaphorical interpretation, except where the literal meaning would lead to a direct absurdity, or would defeat the intention of a treaty.
  • On the other hand a passage may be interpreted in a more limited signification, than the words themselves bear, if such interpretation be necessary, to avoid injustice or absurdity. ...
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Grotius ------ 25

The Interpretation of Treaties (continued)

A treaty made with a king continues in force, even though the same king or his successor should be banished from the kingdom by rebellious subjects.

For the rights of a king, among which his alliances may be reckoned, remain unimpaired, during the temporary loss of his throne...

  • XVIII. On the other hand, any war, if it be with the consent of the lawful sovereign, made upon the invader of his kingdom, or upon the usurper of a free people's rights before his usurpation has received public sanction, will be deemed no infraction of any former treaty with the established authorities of that kingdom or country.
  • For acts of usurpation convey not immediately any right beyond that of bare possession. ..
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Grotius ------ 26
  • The Interpretation of Treaties (continued)
  • If it were evident that an absurdity would follow the fulfillment of a promise, this would be sufficient to prove an original defect in the intention, because no man can be supposed to have deliberately intended doing an absurd act.
  • Wiggle room:
  • as all cases could neither be foreseen nor expressed by the lawgiver, it is necessary to leave a power of excepting the cases, which he himself would have excepted if he were present.
  • Yet this is not to be done upon light grounds;
  • -- only upon the clearest evidence and strongest proofs.
  • clear proof of want of equity:
  • where following the literal meaning of the words would be unlawful,
  • -- that is, repugnant to natural or divine precepts.
  • Thngs incapable of obligation, are necessarily to be excepted. ...
grotius 27
Grotius ------ 27
  • The Interpretation of Treaties (continued)
  • -- or, “too hard and intolerable”
  • XXIX. accidental collision between one part of a written document and another - Cicero’s rules for deciding which has preference. ...
  • 1 - a permission ought to give way to a command:
  • 2 - what is required to be done at a fixed time should have the preference to what may be done at any time.
  • 3 - Among treaties equal in the above respects, the preference for the more particular, and “approach nearer to the point in question.
  • 4 - Those prohibitions which have a penalty annexed to them, are of greater weight than those, which have not;
  • 5 - Lastly, a subsequent law or treaty always repeals a former.
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Grotius ------ 28
  • The Interpretation of Treaties (concluded)
  • Where the party accepting the terms is the promiser, the nature and substance of the transaction will depend upon his words, if they are absolute and unqualified.
  • ... But before a condition is accepted, it is evident that the promiser is not bound to its fulfilment; for no right has been conferred by the one party, or acquired by the other.
  • Therefore the offer of a condition of this kind does not amount to a perfect promise.
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Grotius ------ 29
  • Book III
  • CHAPTER I. What is Lawful in War.
  • an inquiry into
  • (1) the circumstances, under which war may be undertaken,
  • (2) into the extent, to which it may be carried, and
  • (3) into the manner, in which its rights may be enforced.
  • all these matters may be viewed in the light of
  • (a) privileges resulting simply from the law of nature and of nations, or
  • (b) as the effects of some prior treaty or promise.
  • Those authorised by the law of nature, deserve first attention....
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Grotius ------ 30
  • The Natural Right to Defend Oneself:
  • It is evident that we may justly avail ourselves of those means, provided they be lawful, which are necessary to the attainment of any right.
  • Right in this place means what is strictly so called, signifying the moral power of action, which any one as a member of society possesses.
  • On which account, a person, if he has no other means of saving his life, is justified in using any forcible means of repelling an attack
  • - though he who makes it, as for instance, a soldier in battle, in doing so, is guilty of no crime.
  • For this is a right resulting not properly from the crime of another, but from the privilege of self-defence, which nature grants to every one. ...
grotius 31
Grotius ------ 31
  • Upon the same principle
  • (1) any one has a natural right to seize what belongs to him but is unlawfully detained by another
  • ... recoveries of this kind establish a property in the things so reclaimed
  • - which is the only method of restoring the equality and repairing the breaches of violated justice.
  • So too when punishment is lawful and just, all the means absolutely necessary to enforce its execution are also lawful and just, and
  • every act that forms a part of the punishment, such as destroying an enemy's property and country by fire or any other way, falls within the limits of justice proportionable to the offence.
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Grotius ------ 32
  • (2) those who join our enemies, either as allies or subjects, give us a right of defending ourselves against them also.
  • So too a nation engaging in an unjust war, the injustice of which she knows and ought to know, becomes liable to make good all the expenses and losses incurred, because she has been guilty of occasioning them. ...
  • “collateral damage”:
  • (3) an individual or belligerent power may, in the prosecution of a lawful object, do many things, which were not in the contemplation of the original design, and which in themselves it would not be lawful to do.
  • Thus ... it is lawful to attack a ship manned by pirates, or a house occupied by robbers, although in that ship, or that house there may be many innocent persons, whose lives are endangered by such attack.
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Grotius ------ 33
  • what is conformable to right taken in its strictest sense is not always lawful in a moral point of view.
  • [sometimes] the law of charity will not allow us to insist upon our right with the utmost rigour....
  • But wherever there is any doubt, it is always the safer way to decide in favour of another's interest, than to follow the bent of our own inclination...
  • Wars, for the attainment of their objects, it cannot be denied, must employ force and terror as their most proper agents.
  • May stratagems be lawfully used in war? The general sense of mankind seems to have approved of them.
  • VII. The word stratagem, ... taken in a negative sense, includes such actions, as have nothing criminal in them, though calculated to deceive, where any one, for instance, uses a degree of dissimulation or concealment, in order to defend his own property or that of others...
  • For as you are not bound to disclose to others all that you either know or intend; it follows that, on certain occasions, some acts of dissimulation, that is, of concealment may be lawful.
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Grotius ------ 34
  • Use of feints, deceptions, and even lies, in the course of military effort, is in general permissible, says Grotius
  • In ordinary life, intentional falsehood is rightly condemned
  • “[E]ven the grave, sober, and discerning Aristotle describes falsehood as a vile and abominable refuge, painting truth as a lovely object, that must extort the warmest praise.”
  • Unknowingly uttering a falsehood is not lying.
  • Telling the whole truth is not generally a duty either
  • Grotius lists several conditions that would justify telling untruths.
  • especially (5): a stratagem may be practised where it may be the only means of saving the life of an innocent person, or some object of equal importance, or of diverting another from the perpetration of some horrid design. ...
  • - which is frequently the situation in war
  • An important distinction:
  • But this does not include breaking actual promises - even those made to enemies: “this is a rule, which must take place, even between public enemies: a rule to which existing hostilities are not allowed to form an exception.”
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Grotius ------ 35
  • [T]he law of nations allows belligerent powers to alarm each other, if possible, into submission upon the most unequal terms, in the same manner, as it gives a sanction to many things not strictly equitable according to natural and municipal law. For if such a practice had not been established, wars, which are so frequent, could never have been brought to a conclusion, an object so much for the interest of mankind. ...
  • The only impressions of fear, that can be lawfully inspired in regular war, are those which are approved of by the law of nations. Thus no one can avail himself of a promise, extorted from an ambassador under impressions of fear excited by the seizing of his person. ...
grotius 36
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  • CHAPTER XX On the Public Faith, by which War is Concluded
  • Good faith, either expressed or implied, must be the foundation of every treaty between hostile powers. ..
  • It is by pledges given on the part of the sovereign power alone that peace can be concluded, or the rights of war enforced.
  • The person, who has authority to begin a war, is the only one to whom the right of making peace can properly belong .. public war can be made by the sovereign power alone on each side....
  • The property of subjects is under the eminent control of the state, which can use that property, or destroy it, or alienate it, not only in cases of extreme necessity
  • ... but on all occasions, where the public good is concerned, to which the original framers of society intended that private interests should give way. But when that is the case the state is bound to repair the losses of individuals, at the public expense, in aid of which the sufferers have contributed their due proportion.
  • [example Yukiko’s cafe....]
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Grotius ------ 37
  • Indemnity, etc: conditions for peace-making
  • 1. Ideally, the party who has justice on his side (and which is why he went to war) would be indemnified for his losses.
  • 2. no party may gain more than an indemnity
  • 3. No punishments may be imposed (that is “odious”) [see the Treaty of Versailles (1921) ...
  • - In making peace, it scarcely ever happens that either party will acknowledge the injustice of his cause;
  • 4. ... so, we should “equalize the pretensions of each side”
  • by (1) restoring the disputed possessions to their former situation, or
  • (2) leaving them in the state to which the war has reduced them.
  • 5. Unless there is an express stipulation to the contrary ... no actions are to be brought for losses occasioned by the accidental calamities of war, either to states or individuals.
  • For those are natural consequences of a state of hostilities; and ... no belligerent would consent to be convicted of injustice.
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Grotius ------ 38
  • 6. All captures, made after a treaty is finished, must evidently be restored. For the treaty puts an end to all the rights of war.
  • 7. The person, to whom any thing is ceded by a treaty of peace, is entitled to the produce and fruits of it, from the time of such cession, and not farther back ...
  • Three ways of breaking a peace:
  • (1) by doing what is “contrary to the essence of peace”
  • (2) by violating the particular terms of this peace
  • (3) by doing something contrary to the effects, intended to arise from every peace
  • (a) But where any specious pretext can be assigned for taking arms, it is better it should be supposed purely an act of injustice, than an act of injustice accompanied with perfidy.
  • (b) behavior of allies: after the peace, this is not accountable to the other allies - if party B attacks, ally C does not get the blame
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Grotius ------ 39
  • Freedom of individals to move from one formerly belligerent country to another
  • “But it is not lawful to receive whole towns, or great bodies ... nor those who are bound to the service of their own state by oath or other engagement.”
  • Duties re arbitration: a distinction
  • (1) between kings and nations: these must be lived up to
  • (2) “when any one makes an absolute surrender of himself and all his rights to an enemy or foreign power.” Then there’s lots of discretion ...
  • (a) the conqueror should avoid committing any act of injustice, or using any rigour, “except the demerits and atrocity of the enemy require it”
  • (b) ... The best conclusion is a fair adjustment, and a general amnesty.
  • - These are not an abolition but only a mitigation of the conqueror's absolute right.
  • “Though the law of nations may in its literal rigour allow of putting hostages to death, it can never conscientiously be enforced, but where they have committed crimes deserving of capital punishment. Nor can they be enslaved.”
  • [example: the Nuremberg Trials; American treatment of Japan after WW II.]
grotius 40
Grotius ------ 40
  • Truces
  • this is a temporary cessation of hostilities
  • not a peace - after it, hostilities resume as before
  • but during it, no such hostilities are allowed -
  • “every act of violence during a truce is contrary to the law of nations”
  • but, for example, to “repair walls or raise new forces” is permitted unless specifically forbidden by the terms of the truce
  • Any violation of a truce gives the other side an immediate right to resume hostilities
  • If a penalty is asked for and paid, then the side that imposes the penalty has no right to resume war
  • and resuming the war absolves the other side of any payments
  • free passage implies free right of return [no “killing the messenger”]
  • safe-conducts protect that individual “even beyond the territories of the grantee”
grotius 41
Grotius ------ 41
  • Tacit Faith
  • in whatever manner consent is indicated and accepted it has the power of conveying a right.
  • For example: a person coming from an enemy, or foreign country, and surrendering himself to the good faith of another king or people. Such a one tacitly binds himself to do nothing injurious or treacherous to that state, where he seeks protection, a point which is beyond all doubt.
  • “mute signs”: the white flag as a sign of suing for a parley. All these methods have the force of express declarations.
grotius 42
Grotius ------ 42
  • Grotius’ Concluding words:
  • admonitions on means of preserving good faith in war, and maintaining peace, afterward
  • and for preserving good faith - the desire of keeping alive the hope of peace - even in the midst of war.
  • For good faith, as Cicero says, is the principal means by which all governments are bound together .... Destroy this, says Aristotle, and you destroy the intercourse of mankind...
  • In the very heat of war the greatest security and expectation of divine support must be in the unabated desire of peace, as the only end for which hostilities can be lawfully begun.
  • Even for the stronger party, flushed with victory, peace is a safer expedient, than the most extensive successes. For there is the boldness of despair to be apprehended from a vanquished enemy, dangerous as the bite of a ferocious animal in the pangs of death.
  • On whatever terms peace is made, it must be absolutely kept.
  • “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 ... the noblest office, in which man can be engaged, is the government of men, who are the principal objects of the divine care.”
grotius 43
Grotius ------ 43
  • We must always consider the case if a given precept is not adhered to:
  • - betray the white flag
  • - murder prisoners
  • - take hostages during a truce
  • - [use poison gas?]
  • These are things that invite implacable hostility
  • The only choice for a country whose enemy abandons these principles is to fight as bitterly as possible to the last.
  • Those who do not make war with a just peace in mind are the absolute enemies of mankind.
  • -- and with that, we move to the modern era in political thinking!
grotius 44
Grotius ------ 44
  • What’s new from Grotius?
  • intends to work out the idea of “natural law” -
  • a) from what is prior to human will
  • b) to what is consequent on it
  • The general situation is: a lot of people with
  • a) purposes of their own
  • b) wills of their own
  • c) varying powers to accomplish it
  • Main principles:
  • property - founded upon first occupancy, including invention/creation of new things; then by agreement
  • where individual property is impractical (e.g. the ocean)
  • for such we need common rights, as, of passage, to be respected by all
  • self-defence - including acts “necessary to provide whatever is essential to the existence or convenience of life.” - e.g. “physic, food and cloathing.”
  • rights granted to strangers are to be granted indifferently to all - no partiality
  • e.g. a monopoly granted to one nation requires that this nation allow others to buy the products “at a reasonable price”
grotius 45
Grotius ------ 45
  • Peace is agreement
  • So, political analysis is concerned with rational terms of agreement among diverse people
  • - references to “God” in Grotius’ work are

(a) used very sparingly

(b) attribute to “God” the very principles (liberal) that he is formulating

  • Assumes self-interest as legitimate
  • The project is to restrict self-interest when it leads to collision with others
  • So, great emphasis on explicit agreements and contracts
  • And on the reasonable interpretation of the terms of agreements
  • (esp. that they be understandable in common language)
  • “Humanity” to be kept in mind
  • [why? Because we are all human, and liable to the exigencies of our condition
  • His main general maxim: war is for the sake of peace
  • In general, the rules of war come from that maxim.