The Grotian moment: Hugo Grotius and the invention of international law

Hugo Grotius (1583-1645)

A lawyer serving a life sentence escapes from prison hidden in a bookcase: as a plot point it would have the sort of ironic neatness that gives novelists and screenwriters a bad name. In this instance, however, it is true.

It happened on 22 March 1621. The prison was the 14th Century castle of Loevestein, which stands at the meeting of the Meuse and Waal rivers in the Dutch United Provinces. And the lawyer in question was Huigh de Groot (better known then and now as Hugo Grotius). The charge? We shall come to that later.

But to describe Grotius as merely a lawyer is to do him scant justice. In an age when polymaths were less rare he was considered exceptional. He was a philosopher, a diplomat, a historian and a poet (in Latin and in Dutch); he was hailed as ‘the miracle of Holland’ when just 15 by Henri IV of France; Milton met him and admired his dramatic poem Adamus Exul (‘Adam in Exile’); Sweden’s Gustavus Adolphus carried his writings with him wherever he went.

And yet it is on his work as a legal theorist that his reputation now rests. He is, simply, the father of international law. To this day, whenever international lawyers discuss great leaps forward in their field, they describe them as Grotian moments. The establishment of the UN at the end of World War II was one such moment; the abolition of slavery another.

At the time of his incarceration, however, all this is beside the point. In 1621, his greatest work was ahead of him. Had he remained in Loevestein for the rest of his life, it is debatable what he would have achieved – and what, if anything, he would be remembered for.
Yet the world in which he grew up, and the paths which had taken him from being the darling of the French Court at 15 to life imprisonment at 35, shaped his thinking and helped shape, too, the largely pragmatic world order we have today. He was, by experience, a realist, subject to neither religious idealism nor the kind of political cynicism that would be typified by his near contemporary Thomas Hobbes.

Grotius was born in 1583 in Delft into a prosperous and well-connected family. But the stability of his family life should not mask the brutal turbulence of Europe at the time: the continent was bloated with political and religious war, with misery and terror. The largely protestant Netherlands into which Grotius was born, for instance, was in its second decade of revolt against Catholic Spain, a struggle that would cost tens of thousands of lives (Grotius’ own estimate was 100,000) before it had run its course.

He showed a talent for languages early on and was writing Latin elegies by the time he was eight. At the age of 11, he was enrolled at the University of Leiden. No doubt his prodigious gifts played their part in his early entrance to academic life; that his father was a curator at the university and his uncle the rector may also have helped.
Strings were also pulled so that Grotius could accompany the leading Dutch statesman Johannes Oldenbarnevelt on his diplomatic mission to Henri IV in 1598 and Oldenbarnevelt would soon become his patron. Grotius stayed on in France stayed to receive an honorary doctorate from the University of Orléans, returning the next year to establish himself as a lawyer in The Hague. He was still only sixteen.

Over the next two decades he would become a key figure in the political and cultural life of Holland. He was appointed the official Latin historian for the province and was commissioned to write a history of the Dutch revolt against Spain; he translated the bucolic Theocritus and the astronomer Aratus of Soli; he published Sacra, a volume of Latin sacred poems, as well as the aforementioned Adamus Exul; and he became attorney-general of Holland and subsequently governor of Rotterdam. He also found time to get married.

However, his most influential work of the period is De Jure Praedae (On the Law of Booty), commissioned in 1604 by the Dutch East India Company. The treatise defended the Dutch seizure of the Portuguese vessel Santa Catarina, which challenged the monopoly claimed by Portugal and Spain on trade in the East Indies. Although the work as a whole would not be published in Grotius’ lifetime, the final chapter, Mare Liberum (On the Freedom of the Seas), would quickly earn a wide circulation and entered print in 1609. Indeed, Grotius would be embarrassed when, on a mission to the English court in 1613 to resolve trade differences, James I’s negotiators quoted large parts of the work verbatim to undermine the arguments he was putting forward on behalf of the Dutch Republic.

In Mare Liberum, Grotius argued forcefully that the oceans could never be legitimately considered the property of one state because no nation could in practice take possession of them, and he ridiculed Portuguese claims that the discovery of sea routes equated to a kind of ownership. But the freedom of the seas also meant free trade for Grotius: the ability to exchange goods between individuals and nations was a natural right that could not be annexed by monopoly agreements. The linkage of the two would help Mare Liberum remain the definitive work on the subject until well into the 20th century.

Events were soon to turn Grotius’ life upside-down, however. A theological dispute had been simmering for some time in the Calvinist Dutch United Provinces over the teaching and influence of James Arminius, the professor of theology at Leiden. At its most basic level, the disagreement was over the orthodox Calvinist belief in predestination, which Arminius denied. But this escalated into a political stand-off, concerning the supremacy of the state over the church and the balance of power between the States General and the provincial estates. In particular, the Arminian province of Holland, led by Oldenbarnevelt, challenged both the States General and Prince Maurice, who commanded the republic’s army.

Things came to a crisis in 1617, when Oldenbarnevelt, Grotius, and two other leading figures were arrested. At their trial, no charges were read and the defendants were refused counsel. For good measure, the proceedings were also held in secret. All four defendants were found guilty. Oldenbarnevelt was beheaded; the others received life sentences and lost all their property. It would be a year before Grotius learned that he had been charged with treason.

In Loevestein, where Grotius was now sent, his captors allowed him the company of his wife, Marie van Reigersberch, and their children. This proved to be a mistake, for it is thanks to his loyal, resilient and resourceful wife that he was able to escape. It was she who noticed that the guards were getting lazy, and she, too, who persuaded them that the folding bookcase which she was having sent away held nothing more than books.

Disguised as a bricklayer, Grotius made his way to Antwerp and then on to Paris, where his family soon joined him. He was received warmly by Louis XIII, who awarded him a pension. As was often the case, however, this was paid only occasionally and, since his Calvinism meant that a professorship in France was not open to him, Grotius was forced to fall back on what he could earn from his writings.

These were again prolific, and included a Latin translation of Euripides, an edition of Tacitus, and a commentary on the Bible. His great work, though, is De Jure Belli Ac Pacis (On the Law of War and Peace), published in 1625.

As with many great innovations, in retrospect much of what Grotius wrote may seem obvious. But when you consider that the work is part of the same response to horror and chaos in contemporary Europe that produced the political absolutism and reverence for power of Leviathan, then his thinking might appear less inevitable.

Grotius’ primary concern is with the limits of power, with establishing order, peace and security between nations so that natural rights to liberty and property – as well as to trade – can be enjoyed. In essence, he made the sovereign state the legal actor, the basic unit of international law, establishing a tradition that is still embodied in the United Nations, the charter of which echoes Grotian views on non-interference. One state cannot justly involve itself in the internal affairs of another, whether by war or other means. The corollary of this is also true, however: states by virtue of their sovereignty may act largely as they wish within their own borders. (As mentioned above, Grotius was experienced enough in affairs of state to understand what would and would not work in practice.)

Importantly, too, his theories are underpinned with a concept of a law of nature – that is of how human society naturally functions – which is drained of almost all its religious elements. The behaviour of nations becomes subject to reason, reflecting the rational nature of human beings, and not to interpretations of the divine. His faith in reason leads him to conclude that war is the least just method of settling disputes between nations, preferring negotiation, arbitration and, indeed, compromise. That such an idea still sounds modern is testament to both his vision and his relevance.

Grotius, however, thought himself a failure. Following the death of Prince Maurice, he returned to Holland in 1631. However, a price was put on his head and he was forced to flee once more. In 1634 he was appointed the Swedish ambassador to the French court in Paris, where he worked with little direct success on negotiating a settlement to the Thirty Years War.

In 1644, Queen Christina recalled him to Sweden where he was relieved of his position. Although he was offered membership of the Swedish Council of State, he declined. On his return journey to Paris his ship foundered in the Baltic. He died a few days later on 28 August. His last words were, ‘By understanding many things, I have accomplished nothing’.

That is not the judgement of history. Nor was it that of his contemporaries. The Treaty of Westphalia, when it was finally signed in 1648 embodied many of his ideas; international lawyers ever since have drawn sustenance and inspiration from his writing. Indeed, he – and his ideals – are regularly cited in the International Court of Justice. All of us have reason to be grateful to him for his work.

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