The teaching of Hugo Gratius

                           Tyumen State University
                             Faculty of History
                     International Relations Department


                                 Term paper

              “The teaching of Hugo Gratius of war and peace.”



                                                       Done by Denis Brovka,
                                                        Student of group 984
                                            Checked by Christopher Goldsmith

                                 Tyumen 2000
Contents.

Introduction     3
Chapter I   4
Chapter II  7
Chapter III 12
Conclusion  15
Bibliography     16



Introduction


   Hugo Gratius, a scientist and a lawyer from Holland, lived from  1583  to
1645. In his famous treatise “The Three  Books  on  the  Right  of  War  and
Peace”, published in 1625, he depicted the struggle  of  the  Dutch  capital
for freedom at the sea. He is considered to be the founder of the  bourgeois
studies of the international law and is one of the  representatives  of  the
big bourgeoisie as a scholar of law at an early  stage  of  its  development
during the dissolution of feudalism in Western Europe and  the  first  large
revolt of bourgeoisie.
   This book by Gratius is more or less a systematical report of  the  basic
theories of  international  law,  which  were  common  for  that  period  of
evolution from feudalism to capitalism. It was for a long time  one  of  the
most important books for diplomats.
   According to his beliefs, Hugo was a  representative  of  the  period  of
transformation from feudalist to bourgeois state. His  ideas  received  wide
spread and founded the basement of further development of the  international
law, because they expressed real conditions  of  development  and  political
demands of the newly-forming class  of  bourgeoisie  to  the  ruling  feudal
party. I must specially note  the  progressive  character  of  some  of  the
Gratius’s ideas in the sphere of the international law  that  had  a  strong
influence  to  modern  international  relations.  Hugo  Gratius,   being   a
bourgeoisie theorist on its early stages,  denied  the  opinion  that  force
makes all the decisions in the international relations. He thought that  law
and justice should be number one in international relations…
   But we must  not  forget  that  the  progressiveness  of  his  ideas  was
inconsistent and limited by the  narrow  frameworks  of  the  bourgeois  law
views. It is necessary to note that modern  bourgeois  ideologists  renounce
the principles  promoted  by  the  ancestors  in  17  –  18  centuries  when
bourgeoisie was fighting against feudalism.

   Chapter I


   Hugo Gratius was on of the representatives of the leading  (in  17  –  18
centuries) school of common law and treaty  theory  of  state  origins.  The
school expressed the basic demands  of  bourgeoisie  in  its  struggle  with
feudalism; its theoretical basement was outlook, turned out as a  result  of
the revolution in natural history, reformation, and a bundle of ideas,  left
from humanism in 15 –16 centuries.
   It must be noted here that although the school had a  common  theoretical
base it was not homogeneous. It had lots of trends, which differed from  one
another by phases of bourgeoisie development, stages of  her  struggle  with
feudalism, quantity of different class’s representatives  in  a  state,  and
differences in bourgeoisie itself, because different  groups  had  different
opinions on implementing their demands. These differences can be  seen  when
answering the questions on practical implementation of the ideas  of  common
law, ex. Who is the bearer of sovereignty: people or monarch, which form  of
government is the best for human nature, etc.
   The problem of the state origins – a  theoretical  question  –  had  also
different answers. They all agreed that before state there was a  so  called
“natural condition”. But what was this “natural condition” was  a  point  of
debates. For one of the theorists it was a realm of unlimited freedom,  wild
anarchy, leading to war of “all  against  all”  (Hobbes);  for  others  –  a
peaceful  idealistic  state  of  freedom   and   innocence,   “Golden   Age”
(Rousseau); others thought it was unlimited personal freedom (Loch).
   For many preachers of this theory “natural condition” was a philosophical
dogma or, as Golbach said, fiction. But this fiction helped  ideologists  of
bourgeoisie to criticize pre-capitalistic social and  political  regime  and
to prophecy the victory of bourgeoisie. “In this society… - wrote Marx –  an
individual is free from natural bonds, etc.,  that  in  the  past  made  him
belong to a certain limited human community.”
   Theorists of natural law consider state as a result of a juridical act  –
Treaty of the society, of people’s free will.
   The idea of natural law and treaty state origins can be  found  in  Greek
and Roman philosophy and works, and in the works of  feudalism  scholars  in
middle ages. But in 17 – 18 centuries  these  ideas  became  more  developed
with some peculiar features, because they lose  theological  context  common
for medieval scholars, and naпve naturalism of ancient  ones,  because  some
of them considered animals as subjects of law. But the main thing is that  a
theory of international law of the 17 – 18 centuries  had  different  class’
essence. It expressed strong demands of bourgeoisie, struggling hard for  on
its way to power.
   The views on the contents of the Treaty were also different. Hobbes calls
a treaty via people an  act  by  which  all  population  loses  all  natural
freedom and rights in monarch’s favour and permit  him  an  unlimited  power
upon them.  Loch thought that an individual  who  enters  this  society  via
treaty loses his rights only partly (right for self-help, self-defense  when
something is threatening his natural rights), in favour of the  other  part:
private property and freedom. Golbach defined the Treaty of the  society  as
a bundle of conditions necessary for organizing and  saving  society.  Denny
Didreau thought of the Treaty of the society a bit differently.  “People,  –
he wrote, – quickly understood that if they continued using  their  freedom,
their power, their independence… then the situation of every  single  person
would be even more  miserable,  than  that  if  he  lived  separately;  they
realized  that  every  person  has  to  sacrifice  a  part  of  his  natural
independence and to submit to will, that would be  the  will  of  the  whole
society and would be, so to say, common center and a  point  of  unification
of all their wills and powers. That is the origin of rulers.”
   There is no need to say about theoretical unsoundness of this concept  of
the  school  of  natural  law.  Even  in  the  18  century  some   bourgeois
philosophers found the antihistorical essence of these views.  For  example,
Jum says that natural condition is a  fiction  of  the  philosophers.  State
emerges not as a result of a treaty but historically. Some  also  said  that
people could not invent a term “state”, not knowing the practice. The  first
Russian law  professor  Semen  Jefimovitch  Desnitskiy  abruptly  criticized
“natural law” and mostly Pouffendorf. “The works of Pouffendorf – he said  –
was unnecessary, because writing of  states  of  humankind  that  had  never
existed, is a very unworthy deed.”

Chapter II

   It is important to show which natural conditions were the soil  for  such
an illusion of natural state and treaty state origins, and to show the  role
and importance of this idea in the class struggle of that time.
   Marx said that the individual who enters the society union via treaty, as
seen by theorists of the school of natural law, is  a  result  of  descended
feudal society forms and developed in the 16-century new productive  powers.
A great  mistake  of  natural  law  theorists  was  that  in  their  opinion
individual has not developed historically, but  set  up  by  nature  itself.
Features common for bourgeoisie were proclaimed as common for mankind.
   But treaty of the society was regarded by many adepts of natural law  not
as a historical fact but as a logic ground, hypothesis  for  explaining  the
difference between state and  natural  condition,  i.e.  between  state  and
anarchy for explaining  one  or  the  other  form  of  state,  ex.  monarchy
(Gratius), democratic republic (Rousseau). It must be added  that  in  those
historical  conditions  the  theory  of  the  treaty  of  the  society   had
progressive meaning  for  struggle  with  feudal  theories,  ex.  theocratic
concept of state origins and patrimonial theory, which viewed the  state  as
property of the monarch.
   A statement about the dualism of law is common for the treaty theory.  It
differentiates  the  natural[1]  and  positive  law,  i.e.  given   by   the
legislation of a state[2]. Natural  law  is  prior  to  society  and  state;
positive law – to creating a state.
   This dualism in notions of law is also depraved feature in the theory  of
natural law, because the metaphysical way of thinking, common for  bourgeois
ideologists, was not able to explain the unsteadiness  and  variety  in  the
law.
   For the ideologists of bourgeoisie it is common to consider law and state
as an expression of the people’s will. It is of course wrong, from or  point
of view. But in those historical conditions of  struggle  against  feudalism
and absolute monarchy, this illusion  had  certainly  a  progressive  sense,
because with the help of this idea bourgeoisie was  achieving  abolition  of
the system of privileges and setting up a  representative  system  in  state
system.
   Hugo Gratius is  one  of  the  earliest  bourgeoisie  ideologists  and  a
representative of school of natural law. His views were formed at  the  time
when the process of formation of bourgeois  state  in  Netherlands  had  not
finished yet, and the British one was only starting. It must be  noted  that
the struggle of the Dutch against Spanish  king  Phillip  II  made  a  great
influence on Gratius. The problems of international  law,  examined  by  him
were set up  by  the  bloody  30-years  war,  competition  between  Holland,
England and Spain and their  fighting for the leadership at the sea.

   It must be noted that in the system of Gratius’s views there is  no  such
political sharpness  as  is  common  for  Rousseau  or  even  for  Loch.  He
expresses the interests of such groups of bourgeoisie, which  were  able  to
make a deal with feudalism. He is a monarchist according to his beliefs  and
opposes the idea of people’s sovereignty. He  also  doesn’t  want  to  throw
away religious world outlook.
   Hugo Gratius differentiates law as natural and voluntarium.  Natural  law
according to him is a deed,  which  is  considered  morally  disgraceful  or
morally necessary, according to whether it contradicts the  nature  or  not;
that’s why this deed is  forbidden  or  allowed  by  the  God  himself,  the
creator of the nature.” Natural law is “…so stable that  cannot  by  changed
by God himself.” He also spreads the natural law  to  everything,  which  is
dependable from the human’s will, and also  consequences,  which  flow  from
the acts of the human’s will. Natural law sometimes  depends  on  the  time.
For example, the right to private property is ser up  by  the  human’s  will
and that’s why natural law prohibits the theft of it. That is, the theft  is
prohibited by the natural law.
   The common possession was natural until private property was established.
The realization of your right with the  help  of  force  was  common  before
setting up civil laws.
   The law, set up by will, according to Hugo Gratius can be human or  godly
law. In its turn, human law can  be  either  internal  law  of  a  state  or
human’s law in a narrower and at the same  time  broader  meaning.  Internal
law of the state flows from the civil power, ruling in a state. Human’s  law
in a narrower meaning does not flow  from  it.  As  for  human’s  law  in  a
broader meaning, it is the law of peoples (jus gentium), which has  a  power
from the will of all living peoples or most of them. Speaking of a  law  set
up by God Gratius asserts that it flows right from the God’s will.
   Of course, Hugo Gratius according to  his  metaphysical  outlook  asserts
that no society is possible without a law. The law is not a result  but  the
prior event, flowing from the human nature. From the essence of  law,  which
is a desire to communication, flows a range of  necessities:  not  to  touch
not your own belongings, keep a promise,  pay  for  inflicted  damage,  etc.
This antihistorical outlook on the essence of  law  and  the  appearance  of
some of it aspects was  common  for  those  historical  conditions  and  was
necessary for bourgeoisie as an ideological weapon  in  a  struggle  against
the feudal system for bourgeois law order.
   Hugo Gratius defines the law into features and separates it into the  law
of domination and the equality. In his book, mentioned above, he  says  that
a “law is a thing that doesn’t contradict justice. What contradicts  justice
is against the nature of creatures  who  possess  mind  and  communication.”
“Justice can be dualistic.
     a) Justice is the  relation  between  the  equal  (brothers,  friends,
        citizens and allies, etc.). This is a law of equality.
     b) Justice is the relation between the dominant and submissive (father
        and children, master and slave, God and people, etc.).  This  is  a
        law of dominance.”
   From all this he excludes the law concerning individuals. It is  a  moral
quality common for  personality,  according  to  which  it  is  possible  to
possess something or to act in one way or another. This law is  adjacent  to
personality, although it is often connected with things. Law  ability  is  a
law itself according to Hugo. This law is a  power  upon  oneself  (freedom)
and upon other people (father’s or master’s powers), property (complete  and
incomplete), the right to demand, etc. Law ability  is  divided  into  lower
(personal use) and higher (adjacent to all humankind for the good).
   So Hugo Gratius appears to have  a  division  of  law  into  natural  and
voluntarium (positive), which is common systematic mistake for  natural  law
concept. It is also common  for  him  to  have  metaphysical  views  on  the
justice in relation between brothers, people. He sets in the  same  row  the
father, master, king and God, calling them all dominants.  That  means  that
Gratius does not differentiate economic, ideological  and  state  relations.
But  the  essence  of  law,  given   by   Hugo   Gratius,   is   objectively
propagandizing the eternity of slavery. It is common for Hugo Gratius to  be
a supporter of the monarchy and even more  than  that:  in  his  views,  the
medieval jurisprudence remains.
   Although a state is according to definition an act of  creative  activity
and the  best  form  of  people’s  unification,  based  on  a  treaty,  i.e.
supposing the sovereignty of people, Gratius denies  the  fact  that  people
possess sovereignty. He does not agree that people’s  will  is  higher  than
the will of a monarch. Considering that people were  once  sovereign  he  is
sure they passed their sovereignty freely to the people they elected. So  he
stands for medieval patrimonial theory, according  to  which  the  juridical
nature of the nature of the state’s power  is  not  different  from  private
property right.
   That’s why a crime of monarch should not lead to depriving of power, just
as a crime of a simple person in most cases does not lead to  depriving  him
of his property. State territory and state possessions is  the  property  of
the monarch.
   Those reactionary views of Hugo Gratius show that he was a representative
of such a group of  bourgeoisie  that  did  not  make  a  deal  with  feudal
elements, which mostly determined the results of the Dutch Revolution.


Chapter III

   Treatise “The Three books on the right of war and peace” is dedicated to,
as seen from the name, problems of  international  public  law.  In  it  the
author looks at the  problem  of  justice,  sources  of  international  law,
possibility of just war and types of just wars, of influence of the  war  to
juridical relations, which existed before, of rules of waging war, etc.
   Gratius writes that his treatise is written in the  defense  of  justice.
This view on justice is as metaphysical  as  view  on  state  and  law.  The
origins of this metaphysical view are shown in the work F.  Engels  “To  the
living problem”. Looking over the emerging of state and law,  Engels  writes
that at a certain stage of class  society  development  complex  legislation
and a class of professional  lawyers  emerges.  Together  with  lawyers  the
study of law emerges, which “in its  later  development  compares  juridical
systems of different peoples and different epochs,  not  as  reflections  of
economic relations but as self-explaining  systems.  This  comparison  finds
similarities. The lawyers call everything more or less similar in  different
systems natural law. The scale that measures what is related to natural  law
is operating through the most abstract expression  of  the  law  –  justice.
Since then the main goal of development of the law, in the lawyers  opinion,
is to draw human life conditions nearer to justice, or eternal justice.  But
this justice  always  expresses  only  ideological  expression  of  existing
economic relations from their conservative or revolutionary point  of  view.
The justice of Greeks and Romans was slavery, the justice of bourgeoisie  of
1789 demanded to overthrow feudalism, because it  is  unjust.  So  views  on
eternal justice vary not only in different places or times,  but  they  also
vary from person to person.”
   So, the justice which Gratius speaks about is bourgeois justice. “Due  to
the will of the Creator of nature, a human alone is  helpless  and  requires
lots of things for a good living. That is why natural law includes  benefit.
It was a reason of emerging of a state law. Both  the  community  and  power
emerged because of some benefit. As for international law or the law of  the
peoples, it appeared according to custom and agreement of peoples in  favour
of all the communities. The other source of it is nature and holy laws.
   According to Gratius, just as a criminal of  internal  state  legislation
ruins his future well-being and the one of his descendants, the criminal  of
the natural law ruins the basement of his future peace.  Peoples  who  break
this rule, break the walls  erected  for  their  safety  forever.  There  is
nothing solid beyond the law.
   The main problem in “The Three books on the Right of War  and  Peace”  is
the problem of the relation between the war and law, in other words,  can  a
war be fair and that’s why legal. Gratius argues with  the  point  that  war
and law can’t be compatible and that voice  of  law  is  overridden  by  the
sound of weapon. He dedicates a significant part of his work  to  refutation
of this, as he says, mistake. “During a war only civil  laws  keep  silence,
because they are created for peace, but  not  the  natural  ones,  they  are
eternal.” He greatly believes in the existence of some  common  law  in  the
international relations,  which  works  both  for  war  and  peace.  “It  is
necessary to start a war to keep justice, and to  continue  a  started  war,
keeping in the limits of law.
   According to Gratius, war can be waged only against those who  cannot  be
made doing something in a legal order. Legal forms are common for those  who
consider themselves weaker. For those who  consider  themselves  equal  wars
must be waged. “During a war one must keep to the act of peace and one  must
start a war only intending to finish it as fast as possible.
   In the treatise, the war in a broad  sense  is  defined  as  a  state  of
struggle with the force, as solving  of  controversial  questions  with  the
implementation of force. This definition of war spreads  to  many  types  of
wars. Depending on the sides (subjects), taking part in  a  war,  the  force
can be private (self-defense by a person  not  possessing  a  state  power),
public (state) or combined (on one hand – public, one the other -  private).
In a narrower sense, war is an armed conflict between states. The  right  of
war is justice, but in a negative meaning: thing that  does  not  contradict
to justice. “The first inducements of nature do not contradict it,  even  on
the contrary.” That’s the way in which he tries to  prove  it.  Saving  life
and limbs, saving belongings, useful  for  it  –  correspond  to  the  first
inducements of nature. In other words, care of oneself does  not  contradict
to community life, until they break somebody else’s right.  The  force  that
doesn’t break another’s right  is  legal.  That  means  that,  according  to
Gratius:
     1) The sources of wars are  the  passions  of  human  body  (desire  to
        possess valuables)
     2) Just war  is  possible,  which  deserves  approval  of  natural  and
        international law.
   Gratius defines two stages of just public war:
  1) Solemn just war
  2) Simply just war
   “For the war to have solemn character, two conditions  are  required:  it
must be waged by the will of highest  rulers  of  the  states,  and  certain
customs must be kept… Both of those are required, because  any  of  them  is
not enough without another.
   Public war is  not  solemn;  it  can  be  free  from  those  customs  and
ceremonies; it can be waged  against  anyone  by  anyone’s  authority.  That
means that any person has a right to wage his own war. But as war may  cause
danger for the whole state most legislatures forbid it.  War  can  be  waged
only by the highest authority.”



Conclusion


   Neither Gratius,  nor  any  other  bourgeois  scholars  of  international
relations and international law managed to find out the reasons of  war  and
the principle difference between just and unjust  war.  One  of  my  sources
says that only Marxist theory managed it. According  to  Marxist’  point  of
view just war is not a predatory one but a war of liberation,  which  has  a
goal of protecting the people of external  attack  or  of  freeing  colonies
from the “oppression” of imperialism, etc. And unjust  war  is  a  predatory
war, which has a goal to conquer and slave the other state’s people.  But  I
must say that these views are out-of-date of course.



Bibliography



1 Huizinga J The waiting of the Middle Ages. New York: Doubleday &

Company Inc 1956

2 Parry J H The Establishment of the Europian Hegemony: 1415-1715

New York: Harper & Row Publishers 1966

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