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 capitalfor freedom at the sea. He is considered to be the founder of the bourgeoisstudies of the international law and is one of the representatives of thebig bourgeoisie as a scholar of law at an early stage of its developmentduring the dissolution of feudalism in Western Europe and the first largerevolt of bourgeoisie.
This book by Gratius is more or less a systematical report of the basictheories of international law, which were common for that period ofevolution from feudalism to capitalism. It was for a long time one of themost important books for diplomats.
According to his beliefs, Hugo was a representative of the period oftransformation from feudalist to bourgeois state. His ideas received widespread and founded the basement of further development of the internationallaw, because they expressed real conditions of development and politicaldemands of the newly-forming class of bourgeoisie to the ruling feudalparty. I must specially note the progressive character of some of the
Gratius's ideas in the sphere of the international law that had a stronginfluence to modern international relations. Hugo Gratius, being abourgeoisie theorist on its early stages, denied the opinion that forcemakes all the decisions in the international relations. He thought that lawand justice should be number one in international relations ...
But we must not forget that the progressiveness of his ideas wasinconsistent and limited by the narrow frameworks of the bourgeois lawviews. It is necessary to note that modern bourgeois ideologists renouncethe principles promoted by the ancestors in 17 - 18 centuries whenbourgeoisie was fighting against feudalism.
Chapter I
Hugo Gratius was on of the representatives of the leading (in 17 - 18centuries) school of common law and treaty theory of state origins. Theschool expressed the basic demands of bourgeoisie in its struggle withfeudalism; its theoretical basement was outlook, turned out as a result ofthe revolution in natural history, reformation, and a bundle of ideas, leftfrom humanism in 15 -16 centuries.
It must be noted here that although the school had a common theoreticalbase it was not homogeneous. It had lots of trends, which differed from oneanother by phases of bourgeoisie development, stages of her struggle withfeudalism, quantity of different class's representatives in a state, anddifferences in bourgeoisie itself, because different groups had differentopinions on implementing their demands. These differences can be seen whenanswering the questions on practical implementation of the ideas of commonlaw, ex. Who is the bearer of sovereignty: people or monarch, which form ofgovernment is the best for human nature, etc.
The problem of the state origins - a theoretical question - had alsodifferent answers. They all agreed that before state there was a so called
"Natural condition". But what was this "natural condition" was a point ofdebates. For one of the theorists it was a realm of unlimited freedom, wildanarchy, leading to war of "all against all" (Hobbes); for others - apeaceful 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 philosophicaldogma or, as Golbach said, fiction. But this fiction helped ideologists ofbourgeoisie to criticize pre-capitalistic social and political regime andto prophecy the victory of bourgeoisie. "In this society ... - wrote Marx - anindividual is free from natural bonds, etc., that in the past made himbelong 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 Greekand Roman philosophy and works, and in the works of feudalism scholars inmiddle ages. But in 17 - 18 centuries these ideas became more developedwith some peculiar features, because they lose theological context commonfor medieval scholars, and naпve naturalism of ancient ones, because someof them considered animals as subjects of law. But the main thing is that atheory of international law of the 17 - 18 centuries had different class 'essence. It expressed strong demands of bourgeoisie, struggling hard for onits way to power.
The views on the contents of the Treaty were also different. Hobbes callsa treaty via people an act by which all population loses all naturalfreedom and rights in monarch's favour and permit him an unlimited powerupon them. Loch thought that an individual who enters this society viatreaty loses his rights only partly (right for self-help, self-defense whensomething is threatening his natural rights), in favour of the other part:private property and freedom. Golbach defined the Treaty of the society asa 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 personwould be even more miserable, than that if he lived separately; theyrealized that every person has to sacrifice a part of his naturalindependence and to submit to will, that would be the will of the wholesociety and would be, so to say, common center and a point of unificationof all their wills and powers. That is the origin of rulers. "
There is no need to say about theoretical unsoundness of this concept ofthe school of natural law. Even in the 18 century some bourgeoisphilosophers found the antihistorical essence of these views. For example,
Jum says that natural condition is a fiction of the philosophers. Stateemerges not as a result of a treaty but historically. Some also said thatpeople 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 neverexisted, is a very unworthy deed. "
Chapter II
It is important to show which natural conditions were the soil for suchan illusion of natural state and treaty state origins, and to show the roleand importance of this idea in the class struggle of that time.
Marx said that the individual who enters the society union via treaty, asseen by theorists of the school of natural law, is a result of descendedfeudal society forms and developed in the 16-century new productive powers.
A great mistake of natural law theorists was that in their opinionindividual 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 notas a historical fact but as a logic ground, hypothesis for explaining thedifference between state and natural condition, ie between state andanarchy for explaining one or the other form of state, ex. monarchy
(Gratius), democratic republic (Rousseau). It must be added that in thosehistorical conditions the theory of the treaty of the society hadprogressive meaning for struggle with feudal theories, ex. theocraticconcept of state origins and patrimonial theory, which viewed the state asproperty of the monarch.
A statement about the dualism of law is common for the treaty theory. Itdifferentiates the natural [1] and positive law, ie given by thelegislation 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 ofnatural law, because the metaphysical way of thinking, common for bourgeoisideologists, was not able to explain the unsteadiness and variety in thelaw.
For the ideologists of bourgeoisie it is common to consider law and stateas an expression of the people's will. It is of course wrong, from or pointof view. But in those historical conditions of struggle against feudalismand absolute monarchy, this illusion had certainly a progressive sense,because with the help of this idea bourgeoisie was achieving abolition ofthe system of privileges and setting up a representative system in statesystem.
Hugo Gratius is one of the earliest bourgeoisie ideologists and arepresentative of school of natural law. His views were formed at the timewhen the process of formation of bourgeois state in Netherlands had notfinished yet, and the British one was only starting. It must be noted thatthe struggle of the Dutch against Spanish king Phillip II made a greatinfluence on Gratius. The problems of international law, examined by himwere 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 suchpolitical sharpness as is common for Rousseau or even for Loch. Heexpresses the interests of such groups of bourgeoisie, which were able tomake a deal with feudalism. He is a monarchist according to his beliefs andopposes the idea of people's sovereignty. He also doesn't want to throwaway religious world outlook.
Hugo Gratius differentiates law as natural and voluntarium. Natural lawaccording to him is a deed, which is considered morally disgraceful ormorally necessary, according to whether it contradicts the nature or not;that's why this deed is forbidden or allowed by the God himself, thecreator of the nature. "Natural law is" ... so stable that cannot by changedby God himself. "He also spreads the natural law to everything, which isdependable from the human's will, and also consequences, which flow fromthe 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 willand that's why natural law prohibits the theft of it. That is, the theft isprohibited 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 beforesetting up civil laws.
The law, set up by will, according to Hugo Gratius can be human or godlylaw. In its turn, human law can be either internal law of a state orhuman's law in a narrower and at the same time broader meaning. Internallaw of the state flows from the civil power, ruling in a state. Human's lawin a narrower meaning does not flow from it. As for human's law in abroader meaning, it is the law of peoples (jus gentium), which has a powerfrom the will of all living peoples or most of them. Speaking of a law setup by God Gratius asserts that it flows right from the God's will.
Of course, Hugo Gratius according to his metaphysical outlook assertsthat no society is possible without a law. The law is not a result but theprior event, flowing from the human nature. From the essence of law, whichis a desire to communication, flows a range of necessities: not to touchnot your own belongings, keep a promise, pay for inflicted damage, etc.
This antihistorical outlook on the essence of law and the appearance ofsome of it aspects was common for those historical conditions and wasnecessary for bourgeoisie as an ideological weapon in a struggle againstthe feudal system for bourgeois law order.
Hugo Gratius defines the law into features and separates it into the lawof domination and the equality. In his book, mentioned above, he says thata "law is a thing that doesn't contradict justice. What contradicts justiceis 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 moralquality common for personality, according to which it is possible topossess something or to act in one way or another. This law is adjacent topersonality, although it is often connected with things. Law ability is alaw itself according to Hugo. This law is a power upon oneself (freedom)and upon other people (father's or master's powers), property (complete andincomplete), 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 andvoluntarium (positive), which is common systematic mistake for natural lawconcept. It is also common for him to have metaphysical views on thejustice in relation between brothers, people. He sets in the same row thefather, 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 objectivelypropagandizing the eternity of slavery. It is common for Hugo Gratius to bea supporter of the monarchy and even more than that: in his views, themedieval jurisprudence remains.
Although a state is according to definition an act of creative activityand the best form of people's unification, based on a treaty, iesupposing the sovereignty of people, Gratius denies the fact that peoplepossess sovereignty. He does not agree that people's will is higher thanthe will of a monarch. Considering that people were once sovereign he issure they passed their sovereignty freely to the people they elected. So hestands for medieval patrimonial theory, according to which the juridicalnature of the nature of the state's power is not different from privateproperty right.
That's why a crime of monarch should not lead to depriving of power, justas a crime of a simple person in most cases does not lead to depriving himof his property. State territory and state possessions is the property ofthe monarch.
Those reactionary views of Hugo Gratius show that he was a representativeof such a group of bourgeoisie that did not make a deal with feudalelements, 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 theauthor looks at the problem of justice, sources of international law,possibility of just war and types of just wars, of influence of the war tojuridical 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. Theorigins of this metaphysical view are shown in the work F. Engels "To theliving problem ". Looking over the emerging of state and law, Engels writesthat at a certain stage of class society development complex legislationand a class of professional lawyers emerges. Together with lawyers thestudy of law emerges, which "in its later development compares juridicalsystems of different peoples and different epochs, not as reflections ofeconomic relations but as self-explaining systems. This comparison findssimilarities. The lawyers call everything more or less similar in differentsystems natural law. The scale that measures what is related to natural lawis 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. Butthis justice always expresses only ideological expression of existingeconomic 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 oneternal justice vary not only in different places or times, but they alsovary from person to person. "
So, the justice which Gratius speaks about is bourgeois justice. "Due tothe will of the Creator of nature, a human alone is helpless and requireslots 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 poweremerged because of some benefit. As for international law or the law of thepeoples, it appeared according to custom and agreement of peoples in favourof all the communities. The other source of it is nature and holy laws.
According to Gratius, just as a criminal of internal state legislationruins his future well-being and the one of his descendants, the criminal ofthe natural law ruins the basement of his future peace. Peoples who breakthis rule, break the walls erected for their safety forever. There isnothing solid beyond the law.
The main problem in "The Three books on the Right of War and Peace" isthe problem of the relation between the war and law, in other words, can awar be fair and that's why legal. Gratius argues with the point that warand law can't be compatible and that voice of law is overridden by thesound of weapon. He dedicates a significant part of his work to refutationof 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 areeternal. "He greatly believes in the existence of some common law in theinternational relations, which works both for war and peace. "It isnecessary 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 bemade doing something in a legal order. Legal forms are common for those whoconsider themselves weaker. For those who consider themselves equal warsmust be waged. "During a war one must keep to the act of peace and one muststart 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 ofstruggle with the force, as solving of controversial questions with theimplementation of force. This definition of war spreads to many types ofwars. Depending on the sides (subjects), taking part in a war, the forcecan 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 ofwar is justice, but in a negative meaning: thing that does not contradictto justice. "The first inducements of nature do not contradict it, even onthe contrary. "That's the way in which he tries to prove it. Saving lifeand limbs, saving belongings, useful for it - correspond to the firstinducements of nature. In other words, care of oneself does not contradictto community life, until they break somebody else's right. The force thatdoesn'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: itmust be waged by the will of highest rulers of the states, and certaincustoms must be kept ... Both of those are required, because any of them isnot enough without another.
Public war is not solemn; it can be free from those customs andceremonies; it can be waged against anyone by anyone's authority. Thatmeans that any person has a right to wage his own war. But as war may causedanger for the whole state most legislatures forbid it. War can be wagedonly by the highest authority. "
Conclusion
Neither Gratius, nor any other bourgeois scholars of internationalrelations and international law managed to find out the reasons of war andthe principle difference between just and unjust war. One of my sourcessays that only Marxist theory managed it. According to Marxist 'point ofview just war is not a predatory one but a war of liberation, which has agoal of protecting the people of external attack or of freeing coloniesfrom the "oppression" of imperialism, etc. And unjust war is a predatorywar, which has a goal to conquer and slave the other state's people. But Imust 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 JH The Establishment of the Europian Hegemony: 1415-1715
New York: Harper & Row Publishers 1966
3 Гуго Гроцій Про право війни і миру Москва 1948
-----------------------< br>[1] This term has dual meaning. This is either inborn law, not dependablefrom state or the one that is common for differenttime ??????????????????????< br>?????????????????????????????????????????????????? ??????????????????????????< br>?????????????????????????????? s or for different states at the same time.
[2] After having come to power and having created its own class structure,bourgeoisie rejected this separation of law into natural (ideal of law) andpositive (the real practice). It admitted only positive law. And that's whybourgeois scientists lose interest in natural law after that. In 19-centuryjuridical positivism emerges and attracts wide spreading, only engagingpositive law.
