| Phi 213 Spring 2014 |
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Grotius (1583-1645) returns us to questions of the nature of law, and the material we will read in this last section of the course will in some ways replicate, in a different context, the range of views we considered in the first half of the course. Although many of the basic questions are the same for international law as they are for the internal law of individual states, the answers that seem most persuasive in one context may seem far less persuasive in the other.
A note on terminology. Roman law distinguished jus naturale (“natural law”) not only from jus civile (“civil law”), the internal law governing citizens of Rome, but also from jus gentium (“law of peoples” or “law of nations”), which was often characterized as the common features of the internal laws of all states. This third category has at least some overlap with what would now be called “international law,” and Grotius treats international law as the central meaning of jus gentium or “law of nations.” In English, the term “municipal law” is often used in contrast with “international law” to speak of the internal laws of sovereign states, and the distinction between municipal law and international law is thus somewhat analogous to the distinction in Grotius between “civil law” and “the law of nations.” (Part of the reason why “civil law” is not now commonly used in contrast with “international law” is probably the other uses that term “civil law” has acquired: (i) to refer to “private” law, like the law of torts, in contrast to “public” law, like criminal law, and (ii) to refer to legal systems, such as many in continental Europe, that were influenced heavily by Roman law in contrast to the “common law” system found in England and countries like the United States that were influenced by it. Of course “municipal law” also has other uses—e.g., to refer to the laws of towns and cities—but there is limited danger of confusion with this use in the context of discussions of international law.)
A note on the text. The translator, William Whewell (1794-1866), describes this as a “selective” translation, in which he abridges Grotius’ many quotations but preserves his arguments. Most of the notes are Whewell’s (and the signature “W” is his), but one is from the French translation and commentary due to Jean Barbeyrac (“J. B.”), who was often unsympathetic to Grotius but provided a very thorough discussion of his views. If you want to see more, Whewell’s full translation is included in the text browser on the course Moodle site. A translation that is even older than Whewell’s but includes the complete text and Barbeyrac’s notes is available on the Liberty Fund site, and a 20th century translation can be found in Lilly.
The handout includes the bulk of Whewell’s translation of Grotius’ “preliminary remarks” or “prolegomena” to his work. The first part §§1-16 (pp. xxiii-xxvii) is a general discussion of law.
• Grotius lived very early in the modern period, and he is important in the history of thinking about law in part for his influence on later views of natural law. The key principle of natural law for him is the idea of sociableness that he introduces in §6. He offers it as part of his response to the views of Carneades presented in §5. How successful do you think his response to Carneades’ relativism really is?
• Some of the character of Grotius’ views on natural law can be seen by comparing his description of it in §8 with what he says in §§9-10. Think especially about his comments on the “assignment of things,” his label for conceptions of distributive justice. Also note what he has to say about the relation between municipal law and natural law in §§15-16. (Finally, note his remark about the significance of natural law for an atheist in §11, a statement which, however much he hedged it, would have shocked many at the time he wrote this.)
In his treatment of international law in the remainder of the selection, Grotius combines an analogy to the case of municipal law with an acknowledgment of the differences between the two.
• Grotius uses the analogy with municipal law to attempt to extend his argument against Carneades to this case. The argument here is not merely whether the validity of law depends in part on its content (i.e., whether a part of international law must be just in order to be valid), for the very existence of natural law has often been doubted. Look for places where Grotius seems to argue against such doubts and ask yourself how strong his arguments are, both in these cases and in general.
• The strength of Grotius’ argument depends on the degree of analogy between municipal and international law. Of course, there is some disanalogy between the two cases, and you should consider not only its degree but also the way Grotius describes its nature. War is a key topic in this regard, and the title of Grotius’ work indicates that war is central to his conception of international law. You should consider what he has to say about “the law of war and peace” in these preliminary remarks (his full treatment occupies hundreds of pages), but also ask yourself whether international law, as Grotius conceives of it, would be occupied with other matters, too.