This article investigates the formal purpose of declaring wars for Hugo Grotius. Grotius was adamant that states always use justification in a duplicitous way to conceal their real motivation to go to war. As such, the purpose of declaration is not to assert the just cause of war. Rather, what any public declaration does, is provide recognition that confers legal validation to the disputing parties. The legal rules of war were described by the law of nations and occasionally permitted states (...) to commit certain ‘war crimes’ with impunity. For Grotius, this was not a moral sanctioning of such crimes but rather a means to prevent the occurrence of wars, which such endless repudiations risked causing or exacerbating. Grotius’s concern for the effects of war is conspicuous; and recounting his maxim that war should always be a last resort, this article argues that declaration of war has a distinct moral purpose for Grotius. In fact, public declaration of war is, together with constraints on the conduct of war, a ‘principle of moderation’ Grotius insists should be upheld in times of war. Declaration of war gives the parties avenues to seek peace and reconciliation, and, therefore has a humanitarian purpose for Grotius by ultimately seeking to prevent the disparaging effects of war. Even in wars that do not demand a public declaration, such as those regulated by natural law such as punitive wars or defensive wars, Grotius cautions that declarations of war are advisable. The remaining lingering issue is how to engage with unlawful enemy combatants, such as pirates - a distinct problem that the international community still faces with increasing regularity. Grotius was certainly aware of the legal consequences of recognising belligerency we cannot possible hope to build moral relations with, and, this article claims, ‘unlawful’ enemies ultimately demarcates the boundary of international society. (shrink)

This paper explores the presence of late medieval ius commune in Grotius’s thought on the use of force in internal strife and war, based on De iure belli ac pacis. To this end, it examines Grotius’s use of ius commune sources, and considers some similar sources, which he does not actually cite, but which relate to his discussion. By clarifying Grotius’s selection and use of ius commune sources, the paper intends to contribute to the achievement of a double aim: firstly, (...) to determine the place of rebellion and civil war in De iure belli ac pacis, especially in relation to war; and, secondly, to assess Grotius’s approach to the two former issues, particularly with regard to the criteria by which a distinction between rebellion and civil war can be drawn, and to the effects of this distinction. (shrink)

This article starts with a critical reflection on John Westlake’s reading of the history of empire and the English/British East India Company – for him, essentially, the proper concern of ‘constitutional history’ rather than international law. For Westlake, approaching this history through the prism of nineteenth-century positivist doctrine, the Company’s exercise of war powers could only result from state delegation. Against his warnings to international lawyers not to stray from the proper boundaries of international legal inquiry, the article proceeds to (...) recover Hugo Grotius’s theory of corporate belligerency in his early treatise De iure praedae. For Grotius, corporations could wage public war on behalf of the state yet, at the same time, were in law capable of waging private war in their own right. The article proceeds to reflect on the practice of corporate belligerency in the centuries separating Westlake and Grotius; it concludes with observations on the implications of Grotius’s theory of corporate belligerency today. (shrink)

This article explores the writings of Hugo Grotius on the law of civil war. First, the article takes a look at what Grotius wrote about the Dutch revolt, the civil war during which he himself lived and which he helped to legitimise. Second, the article notes how in legal practice the Dutch revolt also provided a valuable early precedent for the later scholars of the law of civil war, who were more concerned with questions of revolutionary prize jurisdiction and the (...) problem of recognition. Third, the article explores the elements relating to these questions of civil war in Grotius’s volitional law of nations as presented in De iure belli ac pacis. These provided Grotius’s most enduring legacy for the later scholars on the law of civil war. (shrink)

One of the odd things about Grotius’s thought is that he – advocate of a rebellious regime – was not very supportive of the right of resistance. Justifying the revolt at the time not only meant legitimizing the new regime he was serving; it also meant ruling out opposition against it. That posed an intricate puzzle; a puzzle Grotius solved by drawing on the theorizing on just revolt of the previous decades. This paper purports to show the connection between Grotius’s (...) thought on just revolt and the intellectual and political environment in which Grotius came of age. It also sets out to show that the solution to the puzzle lies in the element of authority and the particular view taken on the constitutional position of the States in the Low Countries.1. (shrink)

In neither of his two major forays into the laws of war and peace – De iure praedae or De iure belli ac pacis – did Hugo Grotius discuss the legal institutions of reprisal – whether special or general – or privateering in their own right. His profoundly novel reading of the just war doctrine in the context of his theory of natural rights, however, gave powerful legitimisation to the practices of special reprisals, as well as of privateering in times (...) of war and of peace. (shrink)

Gentili’s conceptualization of war as a conflict between states attempted to limit the legitimacy of war to external wars only, thus precluding the legitimacy of civil wars. It reflected both the emergence of sovereign states and the vision of international law as a law among polities rather than individuals. The conceptualization of war as a dispute settlement mechanism among polities rather than a punishment for breach of the law of nations and the idea of the bilateral justice of war humanized (...) the conduct of warfare and the content of peace treaties. The idea of perfect war excluded brigandage, piracy, and civil wars from its purview. Some scholars have suggested that perfect war had a dark side, legitimizing imperial expansion. Others have cautioned that Gentili explicitly opposed imperial expansion rather adopting anti-imperialist stances. This article suggests that these ambivalent readings of the Gentilian oeuvre reflect the ambivalence of the early modern law of nations. Under the early modern law of nations, aggression for the sake of empire was clearly unjust; nonetheless, imperial expansion took place. Whereas ‘a law which many transgress[ed] [wa]s nonetheless a law’, there was a wide divide between theory and practice.1. (shrink)

Centuries before being included in Hugo Grotius’s De iure belli ac pacis and De iure praedae, the subject of reprisal was already being discussed in medieval literature. The aim of this paper is to examine the medieval and early modern practice and theory of reprisal as it developed before and during Grotius’s lifetime. Its first part investigates a number of important foundational elements, such as the issues of definition and terminology, and the common characteristics of a reprisal case. In the (...) second half, the author explores why reprisals were deemed to be a ‘perversus mos’ or ‘bad custom’ and how continued reliance on this practice was nonetheless justified by inserting it into the medieval just war doctrine. The paper does not provide a systematic study of Grotius’s own engagement with medieval reprisal sources. Rather, it should be read in conjunction with another publication in this same volume, ‘Grotius on Reprisal’ by Randall Lesaffer. (shrink)

Due to its enormous importance, Grotius’s contract doctrine has been extensively investigated by legal historians. This paper seeks to enhance scholarly understanding of this topic by looking at commentaries on De jure belli ac pacis written by German theologians and jurists in the second half of the seventeenth century. The paper focuses on comments concerning promises: the criteria for promises that are binding under natural law; the foundations of the obligation to keep promises; error and duress; and immoral promises. Grotius’s (...) contract doctrine rested on a mélange of sources, both theological and juridical, which were not always consistent. Commentators sought to harmonise them by looking at them from different perspectives: some comments were mainly based on interpretations of ius commune texts, whereas others reflected a moral theological approach. The results drew distinctions between law and moral theology that contributed to the fragmentation of Grotius’s synthesis. (shrink)

The article discusses the reception of Grotius by Catholic lawyers at the university of Prague. It focuses on the Grotius commentary by Nicolaus Ignaz Königsmann, which was meant as a response to the discussion of Central European Catholic lawyers on questions of toleration and permissions in law. I argue that Königsmann agreed with Grotius because his conception could be combined with the Catholic belief in free will and dictamen sanae rationis. He grounded natural law in rational human nature and rejected (...) attempts to derive natural law from the highest principle. (shrink)

The idea that a simple unilateral promise, until it is accepted, is not binding according to natural law is defended by Grotius in his major work with an argumentation drawn directly from Lessius, an important source of inspiration for the Dutch jurist, who in turn solves the dispute rooted in the tradition of ius commune. This article aims to reconstruct, in its essential stages, an itinerary through the main positions of medieval and early modern civil and canon lawyers about this (...) controversial issue. These sources constitute the background of early modern scholastics and Grotius as well. The paper analyses some of the principal texts of both bodies of law, highlighting arguments and adding new findings. Notably it is shown that Lessius’s and Grotius’s statements represent a turning point, as far as they react against the resumption of the theory of the binding force of simple unilateral promises in the sixteenth century. With Lessius and Grotius, on the other hand, acceptance became a necessary requirement for every transfer of rights and duties to be enforceable. (shrink)

In the framework of the issue of the observance of promises and agreements, Grotius discusses the question of whether Christians should be allowed to conclude treaties or alliances with those who were named infideles in the canonical and theological terminology. The question was ancient: since the early Middle Ages, alliances of Christians with infidels had been labeled as ‘impious’. Grotius’s solutions are based on the converging traditions of medieval canon law and theology: treaties and alliances with infidels are intrinsically lawful (...) according to natural and positive divine law, although they should be avoided in certain circumstances. Grotius’s concern, however, was not so much to affirm the theoretical lawfulness of the fedus cum infidelibus. The outcome of his argument consists in promoting the cohesion of Christians: he thinks that a joint action of the Christian nations is a moral and juridical obligation in the face of the aggressions caused by the enemies of Christendom. (shrink)

This article discusses to what extent the widely accepted hypotheses of Hugo Grotius’s crucial impact on the theory of contract law – also in Scandinavia – may be maintained or even positively confirmed. Although few direct references to the works of Grotius can be found in Scandinavian legal literature of the seventeenth and eighteenth century, it would be premature to draw a negative conclusion. An impact of Grotius’s thoughts may rather be demonstrated by thoroughly analysing patterns of argumentation concerning specific (...) contractual topics both in legal literature and case law. The article provides the reader with necessary information on the institutional and intellectual preconditions for the reception of Grotius in the Scandinavian legal orders before discussing the impact of the ‘will-theory’ on the requirements of a legally binding contractual agreement in the works of selected influential legal scholars and in case law in more detail. The analysis confirms that Grotius’s work contributed substantially to shaping the intellectual framework in which the first contract law doctrines in Scandinavia evolved. (shrink)

Thanks to Barbeyrac, Pufendorf and others, there is a long-familiar picture of Grotius as offering a groundbreaking account of natural law. By now there is also a familiar observation that there is no agreement what makes Grotius’s account innovative. Sometimes this leads to skepticism about how innovative Grotius’s account of natural law really is. Some scholars suggest that Grotius’s account of natural law resembles Suárez’s account. But others continue to argue that Barbeyrac is right to see Grotius as breaking the (...) ice of previous philosophy and laying the groundwork for a distinctively modern moral philosophy. I plan to contribute to the debate by arguing that, properly understood, Grotius’s position is similar to Suárez’s on a range of fundamental questions, and, furthermore, that seeing Grotius as making a radical break with the past violates his own self-conception. 1. (shrink)

This article recovers James Brown Scott’s conviction in American exceptionalism, a belief that underlay both his institutional work as well as his understanding of the origins and trajectory of international law. In the first section, we discuss Scott’s interpretation of Hugo Grotius as part of his tactic to make US foreign affairs policies and perspectives more compelling by presenting them as universal. In the second section, we argue that Scott’s writings on the Spanish origins of international law were in fact (...) meant to protect Anglo-American hegemony and US influence in the Americas in the face of rapidly changing geopolitical pressures. In the final section we suggest that Scott’s US exceptionalism is reflected in his use of the United States Constitution and Supreme Court as a model for key international organizations. We conclude that Scott reframed Vitoria not to redress American bias but to enshrine it. (shrink)

This essay examines the reception of Grotius’s pioneering Annotata ad Vetus Testamentum in the ‘Biblia Americana’, a scriptural commentary written by the New England theologian Cotton Mather. Mather engaged with Grotius on issues of translation, biblical authorship, inspiration, the canon, and the legitimate forms of interpreting the Hebrew Bible as Christian Scripture. While frequently relying on the Dutch Arminian humanist in discussing philological problems or contextual questions, Mather in many cases rejected, ignored, or significantly modified Grotius’s farther-reaching conclusions on dogmatically (...) sensitive topics. This strategy marks Mather’s ‘Biblia Americana’ as an exemple of a highly sophisticated but ultimately apologetic type of biblical criticism in the context of the early Enlightenment in British North America. (shrink)

In this article Grotius’s perception of the legal relevance of consent is analysed with respect to its ongoing importance for an ethical fundament of public international law. It is argued that Grotius views the function of consent as an aspect of human law, which is limited, but also supported by what he views as the overarching framework of divine law. This can be particularly illustrated by Grotius’s idea of a duty of granting consent: such duty reflects the ethical quality of (...) individual interaction within international law. (shrink)