is more contextual, critical, and debunks Grotius. Martine Julia van Ittersum’s book is a splendid example.30
Several aspects of Grotian international legal theory suggest that he is cosmopolitan. He appeals to the Stoic and Ciceronian concept of a moral community of humankind (humani generis societas).31 Grotius’ claim that war is just if waged against those who actively persecute Christians because of their faith can hardly be called biased. As a norm, it is of course in need of interpretation and application, and here abuse and prejudice may creep in. But it can be accommodated with the principle of self-defence, and the norm is counterbalanced by the prohibition of waging war against those who are unwilling to accept Christianity.32 Vitoria had presented the outlines of an international moral community, and Grotius repeatedly referred to him, stressing that the Spaniard was right. The natives of the East Indies ‘enjoyed public and private ownership’ like the natives of the Americas. Taking their property or natural rights away was ‘an act of thievery and rapine no less than it would be if perpetrated against Christians’.33 Grotius explicitly rejects special rights of the Europeans: the argument of papal donation, that of Christianizing the unbelievers, and the duty to civilize the barbarians. The first title was rejected by Vitoria and other Spanish authors who followed him, with exceptions such as Solórzano. The right to missionize and convert was usually endorsed. It was debated when and to what extent coercion was acceptable. Grotius weakens the scholastic emphasis on religious issues. Along these lines, and in contrast to Gentili and other Protestant authors of the time, he asserts that ‘alliances and treaties with infidels’ or non-Christians are binding. We have to keep in mind that there are not two spheres of law in Grotius’ system, one for Christian, European communities and another one for non-Christians.34
At the same time, Grotius does not simply replace privileges based on Christianity with those based on civilization, as many other more secularized authors after him would do. He is quick to reject another argument in favour of European conquest, the ‘excuse of introducing civilization into barbaric regions’.35 Grotius’ argument can be divided into three propositions. The first one is of course the rhetoric of human rights pertaining to all. The second one, again echoing Vitoria, points to the fact that the natives are ‘neither insane nor irrational’. The third is psychological: Europeans use civilization as a pretext, their real motivation is greed. He buttresses the first proposition with a rejection of consequentialist thinking. The civilization argument implies that one group of persons imposes on another their own thick conception of the good, pretending or really believing that it is for their welfare and happiness. Consequentialist thinking of this sort, however – popularized in the phrase that ‘the end justifies the means’ – is potentially incompatible with natural rights theory. ‘[T]hose who have the use of their reason ought to have the free choice of what is advantageous or not advantageous, unless another has acquired a certain right over them.’36 The qualification in the relative clause seems to leave a loophole for European conquest, but Grotius sees only children (and in another passage the mentally handicapped) as an exception.
The evidence that Grotius was not impartial and cosmopolitan revolves around three issues: the political purpose of his writings; his theory of punishment; and his doctrine of property. In a meticulous study, Martine van Ittersum has shown that Grotius was a lobbyist and ideologue of Dutch colonialism, writing De Jure Praede (1604–6) on behalf of the United Dutch East India Company (VOC or Vereenighde Oostindische Compagnie). The book aimed at vindicating the VOC’s privateering campaign in the East Indies. Grotius used the language of natural law and rights to achieve this pragmatic, political goal.37 Politics and profit triumphed over principles. When Grotius argued that treaties with non-Christians were binding, and the latter enjoyed true dominion, he had the Sultan of Johore as a strategic partner of the Dutch in mind. When he famously pleaded for the freedom of the seas, he followed an explicit request of the VOC directors, and so on.38 Grotius did not refrain from bending facts, applying principles selectively, and condoning unfair contracts. In the words of Richard Tuck, De Jure Praede is ‘a major apology for the whole Dutch commercial expansion into the Indies’.39
What about his major feat, De Jure Belli ac Pacis (1625), a work written when Grotius was no longer a lobbyist for the VOC? Did he turn from politics and profit to principles then? There can be no doubt that De Jure Belli is more systematic and more scholarly, and less of a piece of propaganda. However, even here we find traces of a clear European bias, and arguments that justify European expansion. It is just that the relevant passages are buried under masses of learned, sophisticated, ornate and seemingly innocuous expositions. De Jure Belli ac Pacis shares with De Jure Praede the same starting point, namely the domestic analogy: ‘That power is called sovereign (summa) whose actions are not subject to the legal control of another, so that they cannot be rendered void by the operation of another human will.’40 This power can be the state (civitas), but an individual enjoys the same power and rights, provided it has not transferred them to a civil society. Both natural individuals and states have the right to use force, the right to punish, and thus the right to make war. In a second move, Grotius assigns the same status to private trading companies – such as the VOC. War itself is seen as a kind of lawsuit, the administering of justice by force.
In contrast to Vitoria and other Second Scholastics, Grotius holds that natural individuals may punish persons over whom they do not possess rights if they (allegedly) grievously violate ‘the law of nature or nations’. In particular, this applies to cannibals, inhospitable communities, those who ‘are inhuman to their parents’, and pirates. In a key passage, Grotius sides with Pope Innocent IV (1243–54), who had argued that as the ‘vicar of Jesus Christ’, the Pope had power ‘not only over Christians but also over infidels’.41
Thus far we follow the opinion of Innocent, and others who say that war may be waged upon those who sin against nature. The contrary view is held by Vitoria, Vázquez, Azor, Molina and others, who in justification of war seem to demand that he who undertakes it should have suffered injury either in his person or his state, or that he should have jurisdiction over him who is attacked. For they claim that the power of punishing is the proper effect of civil jurisdiction, while we hold that it is also derived from the law of nature.42
It goes without saying that this imprecise and sweeping provision generously legitimated a large variety of European colonial practices. In addition, there seems to be an inconsistency in Grotius’ work: in other passages, he advocates free choice and a qualified form of pluralism, a result of taking scepticism into account.43
Finally, Grotius’ theory of property clearly favours European agricultural societies. Grotius himself notes the colonial context, and the colonial debates in the wake of the Spanish conquista, with participants such as Vitoria, de Soto, Cano, Covarruvias, Molina and Gentili.44 Grotius presents an embryonic form of the agricultural argument, popularized by Locke and Vattel later on: ‘[I]f within the territory of a people there is any deserted and unproductive soil, this also ought to be granted to foreigners if they ask for it.’ Grotius distinguishes between dominium and occupatio. Dominion and jurisdiction still reside with the native population. However, settlers have a perfect natural right to occupy (as long as occupation is effective), which means that the consent of the natives is immaterial.45
Grotius’ key aim in De Jure Belli ac Pacis, it seems, was to show a way to establish peace among the Christians in Europe. His sphere of natural law is global in scope, but there is an inner, Christian circle, with Grotius hoping that Christian states would form a federation or league (foedus) ‘against the enemies of Christianity’.46 Given the naive and often anachronistic hagiography of past centuries – Grotius as the founder of the modern law of nations, as the champion of native rights, as the theorist of the modern states system, as the founding father of the ‘Grotian tradition’ in international relations, as ‘the tutelary deity of the Peace Palace at The Hague’ (Richard Tuck) – the current debunking is just and proper.47 Nevertheless, we should keep in mind that Grotius undoubtedly made important contributions in other disciplines and areas: for instance, in theology, contract theory, moral theory or the theory of natural rights.
Samuel