HUGO GROTIUS and ON THE RIGHTS OF WAR AND PEACE

A. Life of Hugo Grotius (1583–1645)

- born on April 10, 1583 in Delft, Holland in a family that was moderately prosperous,
well-educated and ambitious.
- his father was a staunch Protestant who held various posts in the city government.
- He wrote Latin poems at the age of 8 and attended Leiden University from 1594 to 1597.
He took his doctorate in law at Orléans in 1599 and entered the private practice of law
in The Hague at the age of 16 and 8 years later was named state's attorney (advocate
fiscal) of the Court of Holland
- Dutch jurist, statesman and historian
- he was considered as the father of international law. Because his works sought to
identify principles of law that might offer a peaceful basis of resolving and preventing
wars. He developed a system of principles of natural law, which are held to be binding
on all people and nations regardless of local customs. He also creates a system of law
that could offer rights to both belligerents of war.
“fully convinced…that there is a common law among nations, which is valid alike for
war and in war, I have had many and weighty reasons for undertaking to write upon
this subject. Throughout the Christian world I observed a lack of restraint in relation
to war, such as even barbarous nations should be ashamed of. (Prolegomena, 28.)”
B. The Book on The Laws of War and Peace
- published in 1625. In writing the work, he was strongly influenced by the bitter, violent
political struggles both in his own country and in Europe, particularly the Thirty Years’
War, which had broken out in 1618
- the Thirty Years’ War (1618–48), in European history, is a series of wars fought by
various nations (Austria, Denmark, Dutch Republic, France, Holy Roman Empire, Poland,
Protestant Union, Russia, Syria, Spain and Sweden) for various reasons, including
religious, dynastic, territorial, and commercial rivalries.
- consists of introduction and three books.
- book one defines the concept of war, argues for the legitimacy of war, and identifies
who may legitimately wage war.
- book two deals with the causes of war and enumerates three just causes of war: self-
defense, reparation of injury and punishment.
- book three is dedicated mainly to the rightful conduct of belligerent in war, and argues
that all belligerent are bound by the rules that govern the conduct of war once it has
begun, whether their cause is just or not.
- Grotius aims in his book in general is not to establish whether there can be rules that
govern war and peace, but to define what those rules are.
C. Chapter 1 of Book 1 “What War is, and What Right is”
- Cicero defines war a dispute by force. But custom has so prevailed, that not the act
of hostility, but the state and situation of the contending parties. War is the state of
situation of those who dispute by Force of Arms.
“ For since there are two ways of disputing Things, one by debate, the other by force”
Classification of Rights
1. Right as attributed to action- signifies merely what is just. Right of war is which may
be done without injustice with regard to an Enemy.
“Florentinus declares, that it is a villainous act for one man to lay an ambush for
another, because Nature has founded a kind of relation between us”
Division
a. Right of Superiority- Parents and children, Masters and Servants, King and
Subject, and God and Man.
b. Right of Equality- brothers, citizens, friends and allies
“Just takes place either among equals, or amongst People whereof some are Governors
and other are governed”

2. Right taken for Quality- related directly to person.

“It is a moral quality annexed to the person, enabling him to posses some particular
privilege, or to perform some particular act”
Division
a. Faculty- when moral quality is perfect. Which means every man has to his
own.
Classification of Faculty

 Power over our selves, which is termed as liberty, or power over

others.
Example: Father over his child or Lord over his slave

 Property- is the use or possession of anything without the

property or power of alienating it, or pledges detained by the
creditors till payment be made

 Credit- implies the power of demanding what is due, to which the

obligation upon the party indebted, to discharge what is owing.
Another Classification of Faculty

 Private and Inferior- established for the advantage of each

individual

 Eminent and Superior- involving the claims which the states has
upon the individuals, and their property, for the common good.
b. Aptitude or Capacity- when imperfect.

3. Right taken for a Rule or Law- to denote a rule of moral action, obliging us to do
what is proper.
“I add moreover, that the law obliges us to that which is good and commandable”
Division
a. Natural- the dictate of right reason.
“Shewing the Moral Deformity or moral necessity there is in any act, according to its
Suitableness or unreasonableness to a reasonable nature”
 b. Voluntary- deriving its origin from the will, and is either human or divine.

 Human
o Civil- results from the civil power which governs the state.
o Less Extensive- not derived from the civil power,
commands such as of a Father to his Son
o More extensive- deriving its authority from the consent of
all or at least of many nations.

 Divine- derived from the will of God.

“God does not will a thing because it is just; but it is just, that is, it lays one under an
indispensable obligation, because God wills it”
D. Chapter 2 “Whether it is Lawful to make a War”
Proofs that it is Lawful to make a War
1. According to the Law of Nature- the first duty of everyone is to preserve himself in
his natural State, to seek after those things which agreeable to Nature, and to avert
those which are repugnant.
“The laws permit us to take arms against to those who armed to attack us.”
2. According to History- God prescribed to his people certain general and established
Rules of Making war which such as in defense of Boarders, against the people to fight
for the Lord’s Battles.
3. According to the Law of Nation- established a certain manner of making war. Solemn
war is accepted which is just.
“to be allowed by the law of Nations to repel violence and wrong, and to defend our
lives”- Florentinus
“by the law of nations, it is allowed to repel force by force”- Livy
E. Chapter 3 “The Division of War into Public and Private”
1. Private War- made by private persons, without public authority.
2. Public War-made on each side by the authority of the Civil Power.

 Solemn (Lawful)- it must be made on both sides by the sovereign power

of the state and should be accompanied with formalities.

 Not solemn (Unlawful)- may be made without formalities and against

private persons, and by the authority of any Magistrate.
3. Mixed war- made on one side of the public authority and on the other by mere
private persons.
F. Chapter 4 “ Of a War made by Subjects against their Superior”
1. War against Superiors- unlawful by the Law of Nature.
“the state has a power to prohibit the unlimited use of that right towards every
other person, maintaining public peace and good order”

- Not allowed by the Hebrew Law

“He that was disobedient to the High Priest or the extraordinary Governor appointed
by God, was to put Death”

- Not also allowed by the Law of Gospel

 “He that resists the Power, resists the Ordinance of God, and they that resist, shall
receive unto themselves Damnation”

- and by the practice of Primitive Christians

“It is not lawful to resist the King’s Authority”- Clement
2. Inferior Magistrates to make War against the Sovereign- unlawful
“All the civil power, that such Magistrates have, is so subject to the sovereign, that
whatever they do against his will is done without Authority, and consequently ought
to be considered only as a private act”

Allowed to Make War

3. Free People against their Prince
“Prince who offend against the Laws, and the State, may not be resisted by force; but
if necessary, may be punished by death”
4. Against the King that Abdicated his Kingdom
“If a King has abdicated his Government, or manifestly abandoned it; after that time,
we may do the same to him as to any private man”
5. Against the King that Alienate his Kingdom
“Though our Father is to be obeyed in all things, yet in those, whereby he ceases to
be a father”
6. Against the King that behaves himself as an Enemy of the whole body of People
“Wherefore he that declares himself as Enemy to the whole nation, is presumed by
the very act to renounce the Government”
7. Against the King who breaks the condition on which he was admitted
“If a Kingdom be forfeited, either 1 for Felony against him of whom it is a Fief, or by
vertue 2 of a Clause in the Act whereby the Sovereignty had been conferred, and which
declares that if the King does such or such a Thing, his Subjects shall from that Time
be absolved from all Allegiance to him, then also a King becomes a private Person”
8. Against the King who having but one part of the Sovereign Power invades the
other
“If a King should have but one Part of the sovereign Power, and the Senate or People 1
the other, if such a King shall invade that Part which is not his own, he may justly be
resisted, because he is not Sovereign in that Respect.”
9. Against the King who grants a license in certain cases
“If in the conferring of the Crown, it be expressly stipu- lated, 1 that in some certain
Cases the King may be resisted; even though that Clause does not imply any Division of
the Sovereignty, yet certainly some Part of natural Liberty 2 is reserved to the People,
and exempted from the Power of the King. Now every one in alienating his Rights in
Favour of another may do it under what Restriction he pleases.”

G. Chapter 5 “ Who may lawfully make War”

1. Three Efficient Causes of War
a. Principal- generally the person interested
 Private War- Private Person Public War- Civil Power
“that every Man has a natural Right to revenge him- self; and therefore were
Hands given us.”
b. Assistants- allies
“Aristotle said it behoved every one to take up Arms, either to defend himself
upon an Injury offered him, or for his Kinsmen, or Benefactors, or Allies. And
Solon 3 declared that a happy State, wherein every Man looked upon the Wrongs
done to another, as done to himself.”
c. Instruments- not arms or things, but certain persons who act by their own
will, but their will depends on another.
“Such is a Son to his Father, being part of himself naturally; or a Servant, as a
Part of his Master by Law.”

BY THE LAW OF NATURE NONE ARE EXCUSED FROM WAR

Reference:
1. Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 1 (Book I) [1625]
2. The Editors of Encyclopaedia Britannica. (2019, November 29). Thirty Years' War.
Retrieved February 25, 2020, from https://www.britannica.com/event/Thirty-
Years-War
3.Onuma, Y. (2020, January 6). Later life. Retrieved from
https://www.britannica.com/biography/Hugo-Grotius/Later-life
4. Hugo Grotius, The Law of War and Peace (1625). (n.d.). Retrieved from
https://www.classicsofstrategy.com/2015/07/the-law-war-peace-grotius.html
5. Hugo Grotius, The Rights of War and Peace, including the Law of Nature and of Nations,
translated from the Original Latin of Grotius, with Notes and Illustrations from
Political and Legal Writers, by A.C. Campbell, A.M. with an Introduction by David J.
Hill (New York: M. Walter Dunne, 1901). Retrieved 2/25/2020 from the World Wide
Web: https://oll.libertyfund.org/titles/553