t h e h is t o r y a n d t h e o r y o f

INTERNATIONAL LAW

.
General Editors

n eh a l bh ut a
The Invention of Custom
v^hair in International Law, University of Edinburgh

ANTHONY PAGDEN Natural Law and the Law ofNations,

nguished Professor, University of California Los Angeles
ca.1550-1750
s t r a u ma n n
J tKC Professor of History, University of Zurich

radical transformation The'rnfj^ of the relationship between nations has undergone a

FRANCESCAlURLARO
of the traditional vocabularies nation-state is diminishing, along with many
Jeremy Bentham coined the nhra«« describe what has been called, ever since
are growing ever more fluid new law’. The older boundaries between states
replace the image of a wrid ”** languages have emerged which are slowly
arena / ‘’'‘/’’national relations sin independent nation states which has dominated
leeal the**’’*?*?* * ‘“’derstandin«.^**-^* century. This redefinition of the international
divide he°tw ’ “ editors’ conviction^th contemporary questions in international and
of the ser- ‘"‘^’’’’^tional legal then ** achieve this is by bridging the traditional
centurv that' «‘o Pr/^ie a17’ *" r *^8^ and politiSl history. The aim
hope that a ‘^^eoretically informed a j’r studies, from classical antiquity to the 21 st
new vision of the rapidlv i • Philosophical work that is historically conscious, in the
y VO ving international world, its past and its possible future, may
emerge.

lOUSLY PUBLISHED IN THIS SERIES

Daniel Lee
ideology “"d International Law
^^^^^‘^ence in Early Israeli Legal Diplomacy
Rotem Giladi

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Series Editors’ Preface
The Law of Nations - the ius gentium - had originally been merely the law which
the Romans had applied to their - predominantly commercial - relations with non-
Romans. It took on a wholly new significance, however, after the ‘discovery’ of the
Americas, which had in effect brought into existence what the German jurist Carl
Schmitt in 1951 described as ‘the traditional Eurocentric order of international
law’. In this book Francesca lurlaro offers a broad-ranging and powerfully compel-
ling new account ofjust how this new ‘order of international law’ transformed what
had once been a form of law based upon a voluntary agreement between peoples,
into one which was supposed to be binding on all peoples across the globe - and
might thus be imposed by one people upon another. She charts the evolving strat-
egies by which a succession of jurists, theologians, and humanists from Francisco
de Vitoria in the 16th century until Emer de Vattel in the eighteenth, sought to
create a ‘new law which was universally applicable to the global community (orbis),
regardless of the specific cultural and historical contexts of local political commu-
nities’. This tied the Law of Nations to the Law of Nature (the ius naturae) - the
Thomist and neo-Thomist elaboration of the claim that there existed in nature it-
self a single basic form of knowledge for all humankind, which was discoverable
through the use of human reason. The Law of Nature, however, was in effect a piece
of cognitive machinery capable only of generating a universal order of justice. The
jurists who contributed to the creation of Schmitt’s ‘traditional Eurocentric order
of international law’ required something more precise - and ultimately enforce-
able - something capable, in effect, of creating a true positive law. To do this they
turned to custom to provide the normative foundation for a universal legal code.
In so doing, however, they transformed what was understood to be custom from
a collection of exemplary regulations - which inevitably varied greatly from one
people to another - into ‘an unwritten norm that the jurist could unravel from the
diverse manifestations of human history.’ Out of this emerged a new genre: the
‘Law of Nature and Nations’ which dominated the thinking about the relationship
between peoples and states from the mid sixteenth until the end of the eighteenth
centuries. Custom was now cast, not as the accumulated practices of individual
societies but as the collective expression of the consensus of all peoples {consensus
omnium gentium). It was, as Francesca lurlaro explains, interpreted as being both
temporally situated - an institution whose foundations resided in Roman law,
Christian religion [and] European classical antiquity - and universal at the same
time.’ Although there were recognized to exist customs that were restricted to in-
dividual communities, and which were, where possible, accepted as valid by the
104 PART II: RHETORIC AND HUMANISM: HISTORICIZING CUSTOM
killing of the Armenian king Aladol on behalf of the Ottoman Sultan Soliman, He
then compares such example with Livy’s judgment that such killings are to be con-
sidered almost as ‘piratesque acts’. Gentili agrees with Livy that this type of conduct
should be condemned and, thus, excluded from the laws of war.’®’ To clarify this
point, Gentih then moves on to report Guicciardini’s take on a similar event: in his
Historia d’Italia, Guicciardini shows that the Spanish were accused of assassination
when they killed Bartolomeo Alviano, leader of the Venetian troops. Unlike Gentili,
however, Guicciardini reads the event as an occasion to complain that ‘the ancient
customs are so different from the current ones’. Again, Guicciardini’s disdain for
the present is not matched by Gentili’s comparative approach, which simply does
not concede any evidentiary value whatsoever to ‘bad’ examples. Rather, such ex-
amples reinforce the normative validity of customs despite their existence.
To conclude his argument, Gentih blames this misunderstanding on interpreters
who stiU approve of this conduct, such as Thomas More. In his Utopia, More ar-
gues that assassinating sovereigns is useful insofar as it punishes those who are
directly responsible for war and spares the hfe of the thousands of innocents who
fight in their name. Gentili sarcastically refutes More’s conviction that Utopians
do not care about praise or fame: ‘by so doing, everything is flattened on the realm
of utihty, at the expense of justice and honesty. After all, More’s concept of utility
is quite uncertain.’®’ In carrying his argument to the extremes. More seems to be
tone-deaf to the pragmatic consequences arising from such killings (heirs to the
throne might claim the throne back; subjects might want to avenge such an injury).
This is testament, according to Gentili, to his crass misunderstanding of the notion
of utility.
To conclude, custom appears to be a pragmatic legal means which is rhetoric-
ally adapted by Gentili to different circumstances and actors, while never severing
its quintessential connection with justice. By considering humanity as a source of
(tacit) legal obhgation, Gentili pursues his goal of founding ius gentium as a con-
sensual science of humankind: probabilis ratio becomes a criterion both of com-
pliance with natural law and of evidence of ius gentium. From a formal point of
view, he borrows the humanistic method of presenting auctoritates as evidence of
consensus from literary authorities and humanists; from a substantial standpoint,
he considers comphance to the laws of humanitas a proof of existence of that con-
sensus through centuries. Such historical continuity is not, however, just a her-
meneutic stance. It becomes a powerful ideological tool in the hands of the jurist
to reconcile justice and practice into a unitary, binding, and transhistorically valid
legal vocabulary.
Ibid, 246.
Guicciardini, L’historia d’Italia (n 76) XII, 8.
DIB 11, VIII, 273. See Thomas More, Utopia (GM Logan and RM Adams eds, CUP 1975) II, §De n
militari.
5
A Literary History of Custom:
Hugo Grotius
5.1 Consuetudo, mos^ consensus: custom as a distinctive
feature of the law of nations
What does ‘custom’ mean for Grotius?’ Does he conceive of it as a source for the law
of nations? In different passages of his works, most notably his De iure belli ac pads
(1625, hereafter IBP), Grotius mentions custom as an important element of the law
of nations, but what precisely he means by such ‘custom’ is controversial. In order to
address this question, a terminological clarification is needed. Grotius uses many
words to refer to ‘custom’: mos, consuetude, consensus, consensio, usus, and, most
rarely, conventus and conventio. As far as the term ‘consuetudo’ is concerned, in
his early works, Grotius seems to use it in a pejorative sense. In his Mare Liberum,
Grotius argues that the law of nations cannot be based on ‘custom’ (consuetude}
and ‘prescription’ because no custom can derogate from the law of nations, which
is of divine origin.^ Accordingly, his famous argument goes, no one shall own the
sea, which is free iuregentium: both because it is, naturally, an element that cannot
be the object of dominium, and because the liberty of trade serves the purpose of
guaranteeing exchanges between distant members of humankind, and is based
on a generally widespread consensus among its members.’ From this perspective,
by equating consuetudo with prescription and privilege,* Grotius intends to con-
demn arguments based on the reiterated practice of potentially illicit behaviours
as a means to justify hegemonic pretences, such as those of Portugal.^ Additionally,
* An earlier version of this chapter was published as an article in Grotiana as Francesca lurlaro,
‘Grotius, Dio Chrysostom and the Invention of Customary Ius Gentium’ (2018) 39(1) Grotiana 15.
Thanks are due to Brill for granting permission to reproduce this contribution.
Hugo Grotius, Mare Liberum (Elsevier 1609) I (hereafter ML). Translations are from Hugo Grotius,
The Free Sea (D Armitage ed. Liberty Fund 2004) 5. On Grotius and the practice of his day, see C
Roelofsen, ‘Grotius and the Practice of His Day’ (1989), 10(1) Grotiana 3. However, in IBP, he expressly
compares custom with prescription, insofar as they both deal with the interpretation of tacit signs. See
Hugo Grotius, De iure belli ac Pads (apud Nicolaum Buonum 1625); English translations from Hugo
Grotius, The Rights of War and Peace (R Tuck ed. Liberty Fund 2005), 11.4.5.2,489.
’ ML,X,51.
< ML, VII, 43.
* Hugo Grotius, De iure praedae commentarius, BPL 917, fol. 4 (hereafter IPC). English translations
from Hugo Grotius, Commentary on the Law of Prize and Booty (MJ van Ittersum ed. Liberty Fund
2006) XII, 345.
The Invention of Custom. Francesca lurlaro, Oxford University Press. © Francesca lurlaro 2021.
DOI: 10.1093/OSO/9780192897954.003.0006
106 PART II: RHETORIC AND HUMANISM: HISTORICIZING CUSTOM
prescription (and therefore also custom) is a civil law instrument and, for this
reason, does not seem to be valid among sovereigns and ‘free people’?
What emerges from this preliminary account is Grotius’ apparent dissatisfac-
tion with the equation of consuetudo with prescription for both substantial and
formal reasons. By relying on the authority of the Spanish jurist Fernando Vázquez
de Menchaca,^ Grotius doubts that such custom has any normative power what-
soever: by contrast, ‘force of law’ is only granted to what he refers to as the divine
law applied to humanity.® Secondly, Grotius implies that there is a formal problem
concerning the ‘procedural’ legitimacy of the reiteration of behaviours originating
custom. How can the mere reiteration of behaviours produce legal effects, if they
have questionable normative content? What is tacit consent and how should we
interpret it?
Grotius adopts several strategies to address these problems and radically
changes his position over time concerning the importance that custom plays in
the law of nations. As a matter of fact, it is possible to observe an evolution in the
value Grotius concedes to custom by the time we get to his IBP.’ Grotius’ process
of conceptualization of custom as a distinctive feature of the law of nations can be
articulated in two fundamental steps.
First of all, in an attempt to face the legally dubious normative content of
consuetudo, Grotius emphasizes its normative force by referring to custom as mos’.
We find already in Grotius’ De iure praedae cotnmentarius (1604-5-, hereafter IPC)
the use of the term mos to qualify a customary practice endowed with some nor-
mative content. Grotius, relying on the eloquence of the orator Dio Chrysostom,
claims that the law of nations is, by its own nature, unwritten law, as ‘nothing
written is valid between enemies; but customs (mores) are observed by all, even
when the extreme of hatred has been reached’.*® In further clarifying this passage,
Grotius specifies that by the term ‘custom’ (mos) he means, in the Ciceronian sense,
the immutable laws originating from nature, like those invoked by the Sophoclean
heroine Antigone in defence of her brother’s right to burial (agrapta nomi ma). It
seems therefore that Grotius foreshadows the existence of another kind of custom
(mores), which, unlike prescriptions, cannot be normatively illicit, due to their
strong connection with natural law. Similarly, in IBP, Grotius insists on the nat-
uralness of such customs by, again, quoting the same discourse On custom by Dio
Chrysostom,** to support his argument that the law of nations is either ‘derived
* IPC, XII, 358.
IPC, XII, 358 and ff.
• IPC. XII, 345.
’ On this, see Paulo E Vauthier Borges de Machedo, Catholic and Reformed Traditions in International
Law: A Comparison Between the Suarezian and the Grotian Concept o/Ius Gentium (Springer 2017) 294
” IPC, 1,16.
" Dio Chrysostom, On Custom, LXXVI (Loeb), in Dio Chrysostom, Discourses 61-80. Fragments.
Letters (H Lamar Crosby ed. Harvard University Press, 1951).
A LITERARY HISTORY OF CUSTOM: HUGO GROTIUS 107
from nature, or instituted by divine commands, or introduced by custom (moribus)
and tacit consent (pacto tacito)'.^^
This leads us to the second question Grotius seeks to solve, concerning the
formal legitimacy of custom. To address the problem of tacit consent, Grotius re-
fers to customs as based on the consensus of mankind (‘quod consensus hominum
velle cunctos significaverit, illud ius est’),*’ consensus of all nations,*^ or of all
the most civilized (moratiores) nations.*5 Whereas the expression ‘consensus of
all mankind’ seems to refer to the universal acceptance deserved by natural law
norms, ‘consensus of all nations’ seems to hint at the existence of proper voluntary
agreements among nations, as ‘provisions adopted either imitatively or as a coinci-
dence by all or at least by a majority of nations’.*®
But what exactly does Grotius mean by consensus? Grotius frames the answer to
this question as one of interpretation. Quite strikingly, when discussing the ques-
tion of how to interpret tacit signs, in IBP Grotius once again refers to consuetudo
as analogous to prescription, but with significant differences compared to his nega-
tive account in IPC: in prescription, ‘there is something very like this in the estab-
lishment of a custom (consuetudo). For this too (setting aside the civil law, which
regulates the time and manner of it) may be introduced by the subjects, if the sov-
ereign tolerates and connives at it’. *7 For this to happen, and to reasonably pre-
sume ‘a man’s silence’, and hence his consensus, Grotius claims that ‘he should be
voluntarily silent [my emphasis], tho’ he has full liberty to speak’.*® The question
becomes then: how can we infer will from silence? How do we think of custom as a
voluntary phenomenon originating in human free will and liberty which, yet, does
not involve any actual human action - except for silence? In what follows, I will
claim that Grotius seeks to reconceptualize the notion of custom precisely by chal-
lenging the notion of voluntarism as applied to custom, and instead radicalizing its
spontaneous, natural value. A crucial role in this process of reconceptualization is
played by Grotius’ reading of Dio Chrysostom, whose oration On custom provides
him with an integrated account of custom as a ‘normative argumentative prac-
tice’.*’ By ‘custom as normative practice’ it is meant a conduct that is embedded
IBP, Prolegomena §1,75: ‘sive ab ipsa natura profectum, <aut divinis constitutum leglbus> [added
in 1631 ] sive moribus et pacto tacito introductum’.
” IPC, Prolegomena, 25,40.
IPC, Prolegomena, 33; XII, 356; IBP, 1.1.12, 161; 1.2.3. 187; II.4.2. 485; 11.18.19. 893; III.2.2. 1234;
111.4.15. 1291; IIL4.17, 1293; IIL4.18, 1295; IIL6.3, 1390; IIL6.8. 1328; III.9.2. 1383; 111.9.4. 1387;
111.19.11.1545.
” IBP. 1.1.12. 159. 161; IBP. 1.2.3. 187; 1.2.7, 207; 11.3.6, 459; 11.6.14, 578; 11.19.1, 927; IIL4.15, 1290;
IIL4.16,1293; 1II.4.19,1300; III.l 1.13,1447.
IPC, Prolegomena, 46.
IBP, n.4.5,490.
** Ibid.
I rely here on Postema’s account of custom as normative argumentative practice: Gerald J Postema,
‘Custom, Normative Practice, and the Law* (2012) 62 Duke Law Journal 707 (hereafter Postema,
‘Custom’), which in turns relies on Robert B Brandom, Making it Explicit. Reasoning Representing and
Discursive Commitment (Harvard University Press 1998); Robert B Brandom, Articulating Reasons.
An Introduction to Inferentialism (Harvard University Press 2000). Apart from being a particularly
108 PART II: RHETORIC AND HUMANISM: HISTORICIZING CUSTOM
in and at the same time emerges from a practice of judgment carrying normative
value, because it is shared by a number of interrelated social participants?® Thus,
Grotius conceives of custom as consisting of arguments (rather than of reiterated
behaviours), that only prove themselves convincing insofar as they are spontan-
eously used within a community of actors.
5.2 Grotius, Dio Chrysostom, and the
‘invention’ of custom
In order to understand Grotius’ account of custom, one could start by asking what
is the place occupied by custom in his doctrine of legal sources. Is custom natural
or voluntary law? Is consensus the expression of an act of will? If so, does custom
qualify as voluntary law? In this respect, custom seems to be qualified as a legal
regime operating between natural law and the law of nations. As Grotius himself
states, customs are either prescribed by nature (‘natura dicta’) or constituted by
consensus of peoples.^*
The ambiguous legal status of custom as an in-between source among natural
law and ius gentium is reflected in Grotius’ divisio iuris, which changes over time.
Notably, in both his IPC (1604-5) and his Mare Liberum (1609), Grotius distin-
guishes between primary and secondary law of nature, and primary and secondary
law of nations, following the Spanish jurist Fernando Vázquez de Menchaca.^^ in
IBP, however, such distinction seems to blur. As a matter of fact, Grotius only dis-
tinguishes between natural law and ius gentium by arguing that everything which
is not natural is contingent and therefore is the result of the will and consent of
men.2^ Consequently, the law of nations seems to belong to the realm of human
will rather than to natural law.
Against this background, when dealing with the question of the interpretation
of tacit consensus, when Grotius speaks about the ‘consensus of all nations’ he is
successful concept in political and legal philosophy (think, for example, of Habermas’ and Dworkin’s
famous contributions on the topic), there have been attempts at conceptualizing international law as
argumentative practice, too, starting from Martti Koskenniemi, From Apology to Utopia: The Structure
of International Legal Argument (Finnish Lawyers’ Pub. Co. 1989) chapter 6. On this, see Ian Scobbie,
Rhetoric, Persuasion, and Interpretation in International Law’, in Andrea Bianchi and others (eds).
Interpretation in International Law, vol 1, (OUP 2015) 61-77; Ingo Venzke, ‘International Law as an
Argumentative Practice: on Wohlrapp’s The Concept of Argument’ (2016) 7(1) Transnational Legal
Theory 9.
“ Postema,‘Custom’(n 19)722,723.
IBP, Prolegomena §26: ‘ius illud ... sive moribus et pacto tácito introductum inter hostes scripta
quidem iura, id est civilia non valere, at valere non scripta, id est quae natura dicta aut gentium con-
sensus constitutit’ (ed. 1625).
1 wf** 5 Nature: Individual Rights in Later Scholastic Thought (CUP
IBP, Prolegomena §31-2,107.
A LITERARY HISTORY OF CUSTOM: HUGO GROTIUS 109
not actually talking about the explicit restatement of sovereign wills and intentions
(in fact, he barely uses the word conventio),^"* but rather of a generic agreement of
views legitimating a given international custom (consensus).Consensus is, for
Grotius, a matter of interpretation, as it does not involve any political agreement
among sovereigns, but rather a mere agreement among arguments, of which the
jurist has to ascertain the scope of application (which is either universal because
deriving from nature, or more limited, as arising from human will).
The most fundamental innovation of Grotius’ use of rhetorical method, espe-
cially if compared with Gentili, is that rhetoric allows Grotius to distinguish be-
tween different legal sources. Whereas Gentili’s equation between natural law and
ius gentium simply results in a different choice of classical topoi to argue for dif-
ferent customs, Grotius’ intuition is that, when distinguishing among ius gentium
and ius naturae, different legal regimes require different persuasive arguments.^®
Grotius claims that for natural law both a priori and a posteriori proof is pos-
sible: ‘the former way of reasoning is more subtle and abstracted; the latter more
popular. The proof by the former is by shewing the necessary fitness or unfitness
of any thing, with a reasonable and sociable nature’.^^ In the a priori and a poste-
riori argument about natural law Grotius seems to dissolve the old distinction, in
De iure praedae, between primary and secondary law of nature.^® Conversely, he
claims, the law of nations can only be proved a posteriori. Indeed, Grotius specifies
that the choice of method to be applied to the study of either natural law or ius gen-
tium is based on the 'qualitas materiae', namely the quality of the subject in ques-
tion.2’ Whereas natural law demands a more deductive approach, which can still
coexist with the a posteriori method, the law of nations can only be proved through
a posteriori proof, as it is impossible to deduce it from certain principles, being
based on the fluctuations and contingencies typical of human will.^
As for conventus: IPC, Prolegomena, 36; and for conventio: IBP III.14.7: ‘quaestio hie incidit an
fogere fas sit ei qui bello iusto captus est. Non de eo agimus qui suo proprio delicto poenam earn est
commeritus, sed qui publico facto in banc fortunam decidit. Verius est fas non esse, quia ex conventione
ut diximus gentium communi operas suas civitatis nomine debet. Quod tamen ita est intelligen um
nisi intolerabilis saevitia banc ipsi imponat necessitatem’; see also IBP 111.4.15.
As argued by Tetsuya Toyoda, Theory and Politics of the Law of Nations: Political Bias tn
International Law Discourse of Seven German Court Councilors in the Seventeenth and Eighteent
Centuries (Brill 2011) 24 (hereafter Toyoda, Theory and Politics).
Benjamin Straumann, Roman Law in the State of Nature: The Classical Foundations of Hugo
Grotius’ Natural Law (CUP 2015) 54 (hereafter Straumann, Roman Law).
Ibid, 68; see also IBP, 1.1.12,159.
Haggenmacher explains that Grotius seems to have changed his mind as soon as he addressed the
question of the law of booty from the perspective of the law of war. See Peter Haggenmacher, Grotius et
la doctrine de la guerre juste (PUF 1984) 398.
” IBP, Prolegomena, §40. 112, ‘ilia ius naturae indicat, hie ius gentium: quorum discrimen non
quidem ex ipsis testimoniis (passim enim scriptores voces iuris naturae et gentium permiscent) se
ex materiae qualitate intelligendum est. Quod enim ex certis principiis certa argumentatione deduci
non potest, et tamen ubique observatum apparet, sequitur ut ex volúntate libera ortum habeat. In IPC
Grotius argued the other way around: what is agreed by everyone (consensus omnium) must have a uni-
versal cause behind it.
» IBP, 1.1.12-14,159-63.
110 PART II: RHETORIC AND HUMANISM: HISTORICIZING CUSTOM
The same methodological distinction is applicable to Grotius’ treatment of
custom. Whereas customs originating in natural law are of universal application
and therefore easily deducible, customary rules of ius gentium, which are based
on the consensus of all nations, or the most civilized of them, might not be so easy
to deduce. In this sense, Grotius claims that such consensus needs to be proved by
more convincing rhetorical arguments. Therefore,
the proofs on which the law of nations is founded, are the same with those of
the unwritten civil law, viz. continual use, and the testimony of skilled men. For
this law is, as Dio Chrysostom well observes, eurema biou kai chronon, the work
of time and custom. And to this purpose eminent historians are of excellent use
to us.^’
As has been mentioned, when dealing with custom in relation to the law of na-
tions, Grotius often refers to Dio Chrysostom, a first-century orator from Roman
Bithynia who is said to belong to the Second Sophistic.’^ piQ Chrysostom’s pos-
ition constitutes a fundamental turning point in Grotius’ treatment of custom as
a fundamental feature of ius gentium, as well as more generally in the history of
the concept in the early modern age. The choice of this lesser-known philosopher
and orator is quite significant. Interestingly, Gentili does not seem to either know
or quote Dio Chrysostom as an authoritative source on custom. Although there
are several 16th-century Latin editions of Dio’s discourses,’’ while Grotius was
working on his IPC, a complete edition of Chrysostom’s Discourses was published
by the Parisian editor Claude Morel in 1604.’* This edition was particularly useful
as it was in both Greek and Latin, and therefore contributed to the rehabilitation
of the figure of Dio during the 17th century.” The Morel edition also contained
the famous Diatriba on Chrysostom, written by the humanist Isaac Casaubon,
” IBP, 1.1.14.2, 163: ‘probatur autem hoc ius gentium pari modo quo ius non scriptum civile, usu
continuo et testimonio peritorum. Est enim hoc ius, ut recte notât Dio Chrysostomus eüpqpa ßlov
xal xpôvou, repertum temporis et usus. Atque in earn rem maximum nobis usum praebent illustres
annalium conditores’.
On the figure of Dio Chrysostom (c. 40 CE-c. 115 CE, also known as Dio of Prusa), see Christopher
P Jones, The Roman World of Dio Chrysostom (Harvard University Press 1978); Simon Swain, Dio
Chrysostom: Politics, Letters, and Philosophy (OUP 2002) (hereafter Swain, Dio Chrysostom)-, Heinz-
Günther Nesselrath (ed). Der Philosoph und sein Bild: Dion von Prusa (Mohr Siebeck 2009); Eugenio
Amato, Xenophontis imitator hdelissimus: studi su tradizione e fortuna erudite di Dione Crisostomo tra
16. e 19. Secolo (Edizioni dell’Orso 2011).
” Most notably, the one edited by Thomas Naogeorgos, Dionis Chrysostomi, praestantissimi
philosophi et oratoris, Orationes octoginta, in Latinum conversae (per loannem Oporinum 1555).
Dionis Chrysostomi Orationes, apud Claudium Morellum, Parisiis 1604. Although there is no copy
of Dio in Grotius’ confiscated library, he shows a certain acquaintance with Dio’s works, as also shown
by his translation of Dio’s account of custom in IBP 1.1.14.2, where we find cOpepa (the lectio of Morel’s
edition). Instead, we find eOpqpa in the 1646 edition of IBP. That he had already read the Morel’s edition
in 1604 for IPC might be, however, a guess.
” Swain, Dio Chrysostom (n 32) 17.
A LITERARY HISTORY OF CUSTOM: HUGO GROTIUS 111
with whom Grotius was in contact.’® In this diatribe, Casaubon explains why
Chrysostom is such an important author for the modern age. Dio’s doctrines are
so universal not only because all kinds of philosophers would follow them, but
also because they derive ‘from the very sources of nature’ (‘ex ipsis nempe naturae
fontibus’).’^ In other words, Dio provides us with knowledge of‘God, of good and
evil, that is innate in the hearts of all humans’ (‘ea quae omnium mortalium animis
insita est dei, et honesti atque inhonesti cognitio’).’*
Grotius’ similarly appreciates the authority of Dio, as it is particularly evident
in his treatment of custom as a natural phenomenon. By relying on Dio’s discourse
On Custom, Grotius makes three sets of claims: custom is a spontaneous phenom-
enon, either originating in natural or voluntary law; custom might be voluntary
with regards to its origin, but does not result from a reiteration of behaviours (ra-
ther, what gives legitimacy to usus is the fact that it is essentially an interpretative
activity - custom is all a matter of consistence, plausibility, and shared acceptance
in interpretation rather than a proper agreements of wills); custom is valid even
during wartime. In the words of Dio, in fact:
Custom is a judgement common to those who use it, an unwritten law of tribe
or city, a voluntary principle of justice [ius volontarium], acceptable to all alike
with reference of that same matters, an invention made, not by any human being,
but rather by life and time (my emphases]. Therefore, while of the laws in general
each obtains its power through having been approved once and for all, custom is
constantly being subjected to scrutiny [consuetudo semper probatur]. Moreover,
while no law will readily be chosen by everybody - for it is by the opinions of the
majority that it is ratified - yet a custom could not come into being if not accepted
by all. Again, while law by threats and violence maintains its mastery, it is only
when we are persuaded [my emphasis] by our customs that we deem them excel-
lent and advantageous.... Again, of the written laws, not one is in force in time of
war, but the customs are observed by all, even if men proceed to the extremity of
hatred.”
This passage is crucial to Grotius’ understanding of custom. First, Dio
Chrysostom claims that custom is a ‘judgment’ (sententia), common and agree-
able to those who use it, a ‘voluntary principle of justice’ (ius volontarium), that
has not been produced ‘by any human being’, but rather is an invention of life
and time’.*® There are at least two problems concerning Grotius’ translation of
To which Grotius’ correspondence bears witness: Philipp C Molhuysen and others (eds), The
Correspondence of Hugo Grotius, digital edn, 1st edn. October 2009, <http://grotius.huygens.knaw.nl>
accessed 13 July 2021.
Isaac Casaubon, ‘DiatribiC in Dionis Chrysostomi Orationes (apud Federicum MoreUum 1604)
” Ibid.
” Dio Chrysostom, On Custom, LXXVl (Loeb).
Consuetudo in Naogeorgos and Morel, mos in Grotius.
112 PART II: RHETORIC AND HUMANISM: HISTORICIZING CUSTOM
Dio. Interestingly, first of all, Grotius translates Dio’s ‘efipqpa piou xal xpóvou’ as
repertum temporis et usus’ (‘an invention of time and usage’),*** instead of‘an in-
vention of life and time’. Whereas the importance of time is still emphasized in
Grotius’ Latin translation, the introduction of the term usus (replacing the Greek
pioQ ‘life’) is particularly problematic. Why does Grotius reintroduce a concept
which he, at first, considered substantially and procedurally problematic?
Secondly, Grotius does not mention that custom is a ‘voluntary principle of
justice’ (ius volontarium), by intentionally leaving out this passage from his quote
of Dio and insisting on the naturalness of custom instead. By contrast, Grotius
agrees with Dio on the relevance of custom for the law of nations because of its ap-
phcability even in situations of conflict. How can custom be voluntary and yet the
invention of life and time?
There seems to be a presumption, in other words, that voluntary law can exist
even though no proper intentional act is put into being. This relates to the inter-
pretation of consensus as, in Grotius’ words, ‘voluntarily silent’, that is, voluntary
as far as the quality and the origin of the act is concerned, but implying no actual
involvement of human agency as far as its ‘expression’ is concerned.
This apparent contradiction is solved by Grotius by considering custom as a
matter of interpretation, to which analysis of his interpretative notion of‘conjectura
voluntatis’ bears witness. Grotius claims that, when we find ourselves facing some
contingent or unclear matters, like voluntary acts or tacit signs carrying legal value,
these cannot be interpreted by simple deduction. In order to detect consensus be-
hind them, one has to engage in a probabilistic analysis of the ‘signs’ that the parties
in question produce as evidence of such consensus.^^ The existence of a debate and
of different views on a given customary norm means, therefore, that it originates in
human will - meaning that it is distinguished from natural law as far as its origin is
concerned. It is the lawyer’s task to interpret the signs of silence, as traces of human
intentionahty, in a way that is as convincing as possible.
Indeed, the jurist has to identify the plausible coniectura voluntatis behind
customs,**’ that is, to make a guess about the motives originating a given norm.
Grotius explains what conjectura voluntatis consists of in his chapter on interpret-
ation, again quoting Suárez: ‘the best rule of interpretation is to guess at the will
** IBP, 1.1.14.2,163.
IBP, II.4.3, 486-7: ‘signa autem nulla de animi actibus certitudinem habent mathematicam, sed
probabilem tantum: nam et verbis eloqui aliud possunt homines quam quod volunt et sentiunt, et factis
simulare. Ñeque tamen patitur natura humanae societatis, ut actibus animi sufficienter indicatis nulla
sit efficacia. Ideo quod sufficienter indicatum est, pro vero habetur adversus eum qui indicavit. Ac de
verbis quidem expedita res’ (cf also the chapter on Interpretation, which will be discussed further below
(IBP 11.16)).
Quintilian mentions coniectura in chapter XII of his Institutio Oratoria: ‘quid? Non quaestio iuris
omnis, aut verborum proprietate, aut aequi disputatione, aut voluntatis coniectura continentur?’ (Inst.
Oratorio, XII. 19); we also find another occurrence of the term in Papinianus, in Dig. 31.78.1. On these
aspects, see Olga Tellegen-Couperus (ed), Quintilian and the Law: The Art of Persuasion in Law and
Politics (Leuven University Press 2003).
A LITERARY HISTORY OF CUSTOM: HUGO GROTIUS 113
by the most probable signs, which signs are of two sorts, words and other conjec-
tures: which are sometimes considered separately, sometimes together’,^ The fact
that Grotius quotes Sudrez in this context is a further hint at Grotius’ methodo-
logical claim of moving the question of custom from the level of moral analysis to
the realm of interpretation. The originality of Grotius’ theoretical move consists, in
my view, precisely in this aspect. Moreover, this change of perspective has a signifi-
cant impact on the choice of sources with which to prove custom, as no reference
to contemporary practice is made to prove the validity of customary norms, which
are first of all, as Dio warns us, rhetorical judgments. On the contrary, Grotius finds
evidence of customs in the literary-historical record, as I will show. Therefore, our
deliberative, intentional activity as humans consists precisely at the same time in
our ‘voluntary silence’ and in the rhetorical process of invention of custom - which
would not otherwise exist without our voluntary activity of arguing for or against
it. Simply, silence would not have any meaning. In Grotius’ view, rather, silence and
its interpretation amount to usus. From this perspective, precisely as there is no
separation between the material and the psychological element of custom, so does
the process of the formation of custom coincide with that of identification (there
is no such thing as ‘first there is custom, and then the interpreter’): the normative
content of custom coincides with its interpretation, because what is meaningful
is already normative (in Dio’s words: we are persuaded exclusively by good cus-
toms). The question, therefore, is only one of wider or narrower consensus of inter-
pretation: while customs originating in natural law inherently demand universal
acceptance and application, and therefore their signs can be easily deduced, volun-
tary customs are the result of a selective ‘silent’ process where sovereigns limit the
application of natural law and the legal meaning of which the jurist can ascertain
through conjectura voluntatis.
But what about the normative content of custom? By further reading Dio’s text,
it is the persuasive force of custom that, while hinting at its inherent rhetorical
structure, also provides it with normative content. The only convincing customs
are those with inherently just moral content, while bad customs do not receive or
deserve our appreciation. Indeed,
For as it is the custom of all men to recount the admirable institutions and prac-
tices which are found among other peoples for the purpose of encouraging eager
emulation of them, we should not in the same way mention any bad practice
that is current elsewhere for the sake of encouraging imitation of it, but, on the
IBP, 11.16.1.2, 849: ‘rectae interpretationis mensura est collectio mentis ex signis maxime
probabilibus. Ea signa sunt duum generum, verba et conjecturae aliae: quae aut seorsim considerantur,
aut conjunctim’.
114 PART II: RHETORIC AND HUMANISM: HISTORICIZING CUSTOM
contrary, only in order that one’s people may be on their guard against it and may
not fall unawares into that sort of thing?^
Also,
Besides, if it appears vexatious that your city should be deprived of any power, it
is you your own selves who are depriving it of the power to guarantee for the re-
cipients the security of its gifts. For whenever you confer this honour upon a man,
it is no longer in your power to allow him to keep it; on the contrary, one offtcial
always has this in his control, namely, the chief magistrate. And yet, it is worse for
you to lack this power owing to custom than to be estopped by law. For in the one
case men in a certain sense have not been deprived of the control of that which
they have by law renounced their right willingly because of the advantage thereby
gained. But when we have to deal with a custom, one cannot even say that men
have deprived themselves - if deprived they have been - of a thing on which they
have neither passed judgment nor deliberated.'*^
Since it is based on a binary logic of moral praise and reproach, customs are ‘for
good people’, whereas written laws are specifically designed to prevent evil people
from doing bad actions. For its inherently spontaneous and self-correcting nature,
custom cannot be mystified by the eloquence of orators and it can only apply to a
society of free men (while written laws might even give rise to tyrannies).*^ It has
been mentioned before that Grotius’ problem in I PC, when equating custom with
prescription, was precisely that these two civil law instruments could not apply to
sovereigns or ‘free people’. As a matter of fact, the strength of Dio’s argument con-
cerning the normative force of custom consists in its self-legislating power: since
it originates from no sovereign power, no sovereign power can abrogate it. This
situation aptly describes the law of nations, in a surprising analogy with Grotius’
account of ius gentium as the law regulating the relations among independent sov-
ereigns with no superior authority above them.
The customary nature of the law of nations is also evident in the fact, highlighted
by both Grotius and Dio that, crucially, customs are also valid in times of war,
unlike positive law, which is suspended by a situation of warfare.*** However, the
problem of how to understand this ‘invention of time and usage’ calls into question
the relationship with antiquity: as claimed by Dio, ‘do not let its antiquity support
Dio Chrysostom, Rhodian Oration, XXXI, §118, in Dio Chrysostom. Discourses 31-36 (JW
Cohoon and H Lamar Crosby eds. Harvard University Press 1940).
** Ibid. §134-5.
Dio Chrysostom, On Custom (LXXVI), §4.
‘Optime enim dictum est a Dione Prusaensi, inter hostes scripta quidem iura, id est, civilia non
valere, at valere non scripta, id est, ea quae natura dictât, aut gentium consensus constituit* (IBP,
Prolegomena, §27,102).
A LITERARY HISTORY OF CUSTOM: HUGO GROTIUS 115
a custom if it is a really bad one’.*’ As customs are ‘constantly being subjected to
scrutiny’, it is necessary to test their validity. Thus, Grotius implements Dio’s dis-
course by providing different rhetorical strategies to let the witness of antiquity
prove custom.
5.3. The ‘poetic’ of natural custom vs the conjectural
assessment of the voluntary customary law of nations: two
examples from Grotius’ De iure belli acpads
Among the sources used by Grotius, a prominent role is played by history, which
is conceived of by Grotius as ‘both the ultimate source and method in finding
out what the law is’.5° As argued by Straumann, the merits of historical method
in Grotius mostly consist in the importance conceded to the normative value of
historical testimonia, which is eventually enhanced by the adoption of rhetorical
method.5* From this perspective, rhetoric allows the jurist to engage in a critical
interpretation of antiquity; as a result of such argumentative practice, antiquity
plays a legitimating role for the present, providing examples implicitly carrying
legal force.
More specifically, according to Grotius, a record of customary norms is best
found in classical history, which he conceives of as the tacit product of human
will,52 the signs of which need to be interpreted as instances of custom for the pre-
sent. As he claims in his De antiquitate reipublicae Batavicae:
antiquity itself bestows a great degree of dignity... for antiquity comes very close
to God, since it resembles eternity... which we should worship and admire in a
state even more than in men, since men are mortal and old age in them is a sign of
the approach of the end, but since a state is founded to exist immortally, it receives
strength from its age, and grows stronger through aging.5’
A similar approach is also evident in Grotius’ Parallellon rerumpublicarum,
where he explicitly compares the Dutch Republic to the glories of its Greek and
Roman precedents.^*
Dio Chrysostom, Rhodian Oration, XXXI, §144.
Mark Somos, ‘Selden’s Mare Clausum: the Secularization of International Law and the Rise of Soft
Imperialism’ (2012) 14(2) Journal of the History ofInternational Law 2&8.
5’ Straumann, Roman Law (n 26) 63.
A similar point is made by Christopher N Warren, Literature and the Law ofNations (OUP 2015)
138 (hereafter Warren, Literature).
Hugo Grotius, ‘Dedication to the States of Holland’, in Hugo Grotius, The Antiquity of the Batavian
Republic, with the notes by Petrus Scriverius (J Waszink ed, Assen 2000) 5; also quoted by Partel Piirimae,
‘Official Historiography and the State in Early Modern Europe’ (2017) 71 (1) Storia della Stonografia 62.
Hugo Grotius, Parallelon rerumpublicarum liber tertius. De moribus ingenioque populorum
Atheniensium, Romanorum, Batavorum (A Loosjes 1801).
116 PART II: RHETORIC AND HUMANISM: HISTORICIZING CUSTOM
Grotius’ penchant for antiquity appears even more prominent in his use of his-
torical sources to prove different kinds of custom. Although the term history has
to be interpreted broadly as ‘literature and history’ (comprising, therefore, sources
from various disciplines, as Grotius himself points out),^^ poetry plays a prom-
inent but controversial role in Grotius’ legal doctrine. While claiming that poetry
should have a subsidiary role because it can be merely ornamental,’^ Grotius sur-
prisingly makes extensive use of ancient poets to support his arguments. One
possible explanation for this might be that Grotius uses poetic sources only to fur-
ther emphasize a point which is already self-evident: arguably, as we have seen,
that might be the case with natural law, which is perfectly deducible from human
reason. However, it would be misleading to think that poetic sources are useless
in Grotius’ legal thought. On the contrary, poetic examples are for Grotius par-
ticularly helpful. Whereas history uses particulars to build toward universals,
poetry does the exact opposite: poets use verisimihtude to explain truths in a likely
manner, even if no historical events ever occurred in that exact form.’® The moral
and legal value offictio, intended as an original source of meaning detached from
historical truth, is what makes poetic examples so appealing to the lawyer: indeed,
‘poetry was not merely meant to entertain the audience, but to inform as well: it
conveyed a social message, and this functioned in a complex system of literary tra-
ditions and moral codes’.”
Grotius identifies tragedy as a very authoritative source of information con-
cerning the law of nations, both because its characters are always sovereigns and
because tragedy, by providing a dynamic alternation of actiones and personae, is
more likely to provoke compassion and purification.®® An example of this aspect
is evident in Grotius’ treatment of the right of burial and his choice of Euripides
as the fundamental source to prove the existence of such custom. Although the
Straumann, Roman Law (n 26) 22: ‘at first glance. Grotius seemed to speak of antiquity quite gen-
erally, expending little effort on geographic or historical differences; it was ancient Greeks and Romans
whom he preferred to all others, without showing any preferences within these rough categories. Such
preferences emerge quickly, however, if one studies the historical development and normative sub-
stance of Grotius’ natural law theory*.
IBP, Prolegomena §48,124.
Ibid.
Mark Somos, Secularisation and the Leiden Circle (Brill 2011) 162 (hereafter Somos, Secularisation)-,
on poetic and legal fiction, see Kathy Eden, Poetic and Legal Fictions in The Aristotelian Tradition
(Princeton University Press, 1986); Kathy Eden, ‘Forensic Education and Humanist Education, in
Lorna Hutson (ed). The Oxford Handbook ofEnglish Law and Literature, 1500-1700 (OUP 2017) 23-39.
” Arthur Eyffinger, ‘Outline of Hugo Grotius’ Poetry’ (1982) 3(1) Grotiana 57, 59. This aspect is
evident in Grotius’ preface to his 1630 edition of Euripides’ Phoenissae: ‘ideo poema, directa ratione
incedens, drama dicitur, quia ad ipsam actionem, qualis est, proxime accedit. lam vero actiones
humanae, eae praecipue, quae ad ciendos in nobis affectus vim habent aliquam, aut graves sunt, aut
leves, aut mediae. . . Tragoedia quo sit gravior, etiam graves personas praecipuas habet, quales sunt
reges, et qui ad horum fortunam proxime accedunt’ (Hugo Grotius, Euripidis Tragoedia Phoenissae,
emendata ex manuscriptis, et latinafacta ab Hugone Grotio (Ruart 1630)).
“ A similar point is also made by Daniel Heinsius in his De Constitutione Tragoediae (1611), as
pointed out by Mark Somos, ‘Enter Secularisation: Heinsius’s De Tragoediae Constitutione’ (2010) 36( 1)
History ofEuropean Ideas 19.
A LITERARY HISTORY OF CUSTOM: HUGO GROTIUS 117
right of burial is listed among the matters governed by the voluntary law of nations,
Grotius claims that it derives ‘in some measure from the law of nature’.®* Some nat-
ural rights became part of the voluntary law of nations only after they received ‘con-
firmation’, namely, when they were accepted by nations.®^ The right of burial seems
to fall into this category, as it is as natural as natural law (‘as all common Customs,
agreeable to natural Reason, are usually termed Laws of Nature, as we have ob-
served elsewhere’),®’ but its status received confirmation over time. In this case,
Grotius seems to think that a more convincing strategy is to insist on the natural-
ness of this custom. In fact, at first such a right was derived from God, then it was
respected for reasons of humanity, so that animals did not waste human bodies.®^
Such a right is so sacred that it is also due to enemies, even though there might be
occurrences of the contrary in the literature.®’ Grotius proceeds by demonstrating
such right in three steps: first by claiming its divine origin; second, by explaining
the ratio behind such custom; third, by claiming its public character, which makes
it applicable to both private and public enemies (and therefore even in times of war,
as Dio Chrysostom contends).®®
As for the first point, when describing the divine origin of the right of burial, one
source is particularly relevant to Grotius: the poet Euripides.®^ Euripides’ tragedies
can be considered as evidence of natural law because he is so well versed in human
affairs as to portray human nature precisely as natural law would.®® Euripides, in
his Suppliants, by further expanding Sophocles’ account of the nomoi agraphoi as
divine law, claims that the right to burial for enemies is a ‘Pan-Hellenic law’.®’ This
move is rather important because it creates a fundamental connection between
divine law, natural law, unwritten law, and customary ius gentium, consistently
with Dio Chrysostom’s account.^® In fact, ‘because the ancients derived the original
“ IBP, 11.19.6,948.
“ Ibid.
IBP, 11.19.1.1,925.
** IBP, II. 19.2.4,934-5.
IBP, 11.19.3.3,940.
“ Compare this passage with IPC, VIII, 148.
As Grotius claims in Hugo Grotius, Excerpta ex Tragoediis et Comoediis Graecis (apud Nicolaum
Buonum 1626): ‘perfectissimus in tragoedia, magno auctore Aristotele, Euripides, tres quos ha uit
magistros, de rerum natura Anaxagoram, in dicendi arte Prodicum, de moribus Socratem ita expressit,
ut in omnibus his quae a sapientibus tradita sunt paene ipsis par a Quintiliano verissime dicatur. c
morum quidem partem quam praeclare tractaverit, indicio sit quod Plato, quod Aristóteles totws
eius utantur auctoritate; Cicero vero quot eius sunt versus totidem esse dicat testimonia. In dicen o
autem et respondendo, in movendis affectibus nulli oratorum cedit, ñeque eius artis exempla aliun e
facilius haurias. lam et reliquae sapientiae partes ita ubique intextae, ut scenici philosophi nomen in e
obtinuerit.’
Euripides, Suppliant Women. Electra. Heracles (D Kovacs ed. Harvard University Press 1998)
V.311.
This point is made by Giovanni Cerri, Legislazione órale e tragedia greca. Studi suU’Anttgone dt
Sofocle e sulle Supplici di Euripide (Liguori Editore 1979). Cerri stresses the continuity between
Sophocles and Euripides by arguing that Euripides conceives of unwritten law as a pan-Hellenic
law’ (81).
118 PART II: RHETORIC AND HUMANISM: HISTORICIZING CUSTOM
of those rights that are common to all civilized nations, from the gods, to the end
they might be accounted the more sacred’7’
In a second argumentative step, Grotius seeks to explain the ratio behind the
custom of burying the dead. Again, the witness of poetry provides particularly
useful to this effect. One possible reason explaining this custom is that ‘men, by
burying the dead, do, as it were, of their own accord, pay a debt which the law of na-
ture would otherwise require of them,... for that, mans body, being taken from the
earth, should be restored to the earth again?^ Once again, Euripides’ Suppliants is
the main source quoted here. The particular value of this idea, Grotius emphasizes,
is that it is accepted by Greek and Latin writers before even becoming a Christian
principle grounded in the doctrine of resurrection.''^ However, what Grotius con-
siders the most intuitive (‘simplicius’) explanation of such right is the superior
nobleness of human creatures, whose bodies need to be preserved from beasts
for reasons of human compassion: ‘it is not agreeable to reason that the secrets
of human nature should after death be exposed to public view’.^^ What is deemed
shameful of the practice of leaving the dead unburied is the mere fact of publicly
exposing their body.
This leads me to the third point. The inherent humanity of such right, univer-
sally grounded in the very essence of human nature, makes it applicable to both
private and public enemies. In support of his claim, Grotius quotes verses from
Sophocles,75 Euripides,7^ Virgil,and Statius.^® As a consequence, as Euripides
states by telling the story of Theseus declaring war to Creon (because the latter
refused to bury the body of the suppliants’ sons, who died during the assault to
Thebes), it is licit to declare war on a sovereign if he refuses to bury the dead.^’
Interestingly, contrary occurrences ‘are condemned by the general voice of man-
kind’.®® Consensus of mankind is invoked when speaking of universally applicable
customs. In this respect, when observing Grotius’ citation technique, it appears
that he seeks to amend the potential argumentative deficiency of poetic sources by
adding to their testimony those of authors whom he considers ‘universal’ - mostly,
Seneca, Lactantius, Philo, Josephus, and Cicero.®’ Arguments de consensu omnium
(a type of argument derived from Stoic thought),®^ become a criterion for selecting
7’ IBP, 11.19.1.2,927.
” IBP, 11.19.2.2,932.
” Ibid.
7* IBP, 11.19.2.6,936.
7’ Sophocles, Ajflx, V. 1091-2 (Loeb).
7® Euripides, Antigone, frgm. 176 (Loeb); Euripides, Suppliant Women. 528-9.
Virgil, Aeneid, XI, v. 104 (Loeb).
7* Statius, Thebais, Books 8-12, v. 573-4 (Loeb).
” IBP, 11.19.5.5,948.
“ IBP, 11.19.3.4,940.
•* Grotius makes a similar argument de consensu omnium, by quoting these very same sources, to
claim that making war is not contrary to natural law: IBP, 1.2.3,187.
“ On the Stoic doctrine of consensus omnium, see Dirk Obbink, ‘What All Men Believe - Must Be
True: Common Conceptions and consensio omnium in Aristotle and Hellenistic Philosophy’, in Julia
A LITERARY HISTORY OF CUSTOM: HUGO GROTIUS 119
and ‘correcting’ the partiality of poetic sources: the more their authority is widely
acknowledged by a larger number of scholars belonging to different philosophical
factions, the more they can be used as reliable expressions of natural law.®’
However, exempla from poetry and arguments de consensu omnium might not
be sufficient in cases when a more persuasive approach is required, due to the con-
tingent nature of the matter at stake. Indeed, contingent matters demand another
method of argumentation, and involve judgment because they are debatable issues
and the existence of consensus must be proved.®^
Indeed, Grotius claims that, as far as the law of nations is concerned:
Nothing of Certainty can be concluded from the Reasons each of these give to
confirm their Opinions; for this Right is not groxmded upon sure and infallible
Principles, as a Right of Nature, but takes its Measures from the Will and Pleasure
of Nations (ex volúntate gentium)... We are therefore to consider how [my em-
phasis] different nations have agreed in this Point, which cannot be proved by
Instances (exempla) only. For Instances enough may be alleged on both sides. We
must therefore have recourse both to the opinions of wise men, and Conjectures
of the Will of nations (ad sapientum judicia, turn ad conjeeturas).
This aspect is emphasized by the fact that Grotius considers examples insuffi-
cient to prove the voluntary law of nations (‘ex soils exemplis evinci non potest).
Examples have little normative value, as they can be invalidated by other similarly
legitimate counterexamples. This allows us to understand why Grotius brings the
distinction between examples and judgments even further by claiming that ex-
empla are insufficient to prove controversial customs pertaining exclusively to the
voluntary law of nations. Rather, they can only be proved by recurring to a conjec-
tural method, namely by comparing and contrasting different judicia of scholars,
mostly historiographers, jurists, but also modern theologians, such as those of the
School of Salamanca.®^
From this perspective, historiography stricto sensu (i.e. the works of historians
of the past) plays a fundamental role in Grotius’ rhetorical method. With Livy
being his most quoted source, Grotius is aware of the normative power of historical
Annas (ed), Oxford Studies in Ancient Philosophy 10 (OUP 1992) 193-231: Hans Blom and Laurens
WinkeL ‘Grotius and the Stoa: Introduction’ (2001) 22(1) Grotiana 3.
It has been observed that the use of such arguments was also instrumental for Grotius (and for hu
manists belonging to the early 17th-century Dutch milieu). These intellectuals conceived of seculariza-
tion and eclecticism as valuable, alternative solutions to react to the religious turmoil of his times an ,
by so doing, promoting a cosmopolitan project of inter-confessional peace. See Somos, Secularisation
(n 58) 57.
** Straumann, Roman Law (n 26) 71-3.
” IBP, 11.18.4.2,907.
An example of Grotius’ engagement with the works of Spanish theologians is represented by his
treatment of the laws of embassy (IBP, 11.18).
120 PART II: RHETORIC AND HUMANISM: HISTORICIZING CUSTOM
judgments. Such power resides in the moral judgments that historians attach to
events of the past.®^ At the same time, this is also what makes their evidentiary
role more problematic: the normative value oijudicia must be ascertained against
the possible partiality of historians. This was a problem already for Gentili, as he
notably claimed in his De artnis Romanis.^ Authoritativeness, persuasiveness, and
accuracy are, therefore, the most important criteria through which Grotius selects
and makes use of historical judgments. To do so, he discusses and compares them
in search of a persuasive truth, and consequently, of the legal norm that is best
enshrined in their judgments. This aspect is evident in his treatment of the prohib-
ition to poison enemies, which constitutes a limitation of the law of nature:
As the Law of Nations permits many Things, in the Sense we have explained,
which are forbid by the law of Nature, so it prohibits some Things allowed by this
Law of Nature. For if we respect the law of Nature, when it is permitted to kill a
Man, it signifies not much, whether we do it by the Sword or Poison. 1 say the Law
of Nature, for indeed, it is more generous to attempt another Man’s Life in such
a manner, as to give him an Opportunity of defending himself, but we are under
no Obligation to use such Generosity towards those who deserve to die. But the
Law of Nations, if not of all, yet of the more civilized, allows not the taking the Life
of an Enemy, by Poison; which Custom was established for a general Benefit, lest
Dangers should be increased too much, since Wars were become so frequent.®’
Such customary prohibition sets for Grotius an example of the fact that the law
of nations forbids some things that might be instead permitted under natural law.
As a result, voluntary customs are proved by an inferior number of historical in-
stances (compared to ‘natural customs’ which deserved the universal acceptance of
consensus omnium).
Grotius claims that this custom (consensus) was established for the general
benefit of mankind, to prevent an increase in dangers resulting from an increased
number of conflicts (‘qui consensus ortus est ex respectu communis utilitatis,
ne pericula in bellis quae crebra esse coeperant nimium intenderentur’).’®
Furthermore, Grotius makes a conjecture concerning the origin of such custom: ‘it
is probable (credibile), that it was first introduced by kings. For if their life be more
secure, than that of others, when attacked only by arms; it is, on the other hand,
more in danger of poison, unless protected by a regard to some sort of law, and the
fear of disgrace and infamy’.” In other words, Grotius’ conjectura voluntatis is that,
Straumann, Roman Law (n 26) 72.
“ Alberico Gentili, The Wars of The Romans: A Critical Edition and Translation of De armis Romanis
(DLuphered, OUP2011) 14.
” IBP, in.4.15,1290.
*0 Ibid.
” Ibid.
A LITERARY HISTORY OF CUSTOM: HUGO GROTIUS 121
although it is not possible to trace back the lineage of this custom, it is possible to
argue that it was introduced by kings for reasons of security, since they are more
vulnerable to poison than they are to arms. Here we can see how it is possible to
prove that custom originates in human will, but actual proof of its validity and per-
suasiveness of its normative content is to be found in the judgments of historians of
the past. To further support his argument, Grotius quotes several historians con-
demning the use of poison in wars, emphasizing that it is in ‘the common interest
of nations, that no such examples be given.’^ To this effect, Grotius engages with a
widely commented passage from Livy, who tells the story of king Perseus.” Perseus
was the last Macedonian king before Macedonia came under Roman rule in 168
BCE. Livy emphasizes that Perseus’ hostile plans to kill Eumenes, his sworn enemy,
generated concerns among the Romans. Such plans included the use of poison, a
practice which was condemned as ‘unworthy of the soul of a king’.” With this sen-
tence, Livy suggests that not only this custom was born with kings for reasons of
security, but also that it is a question of royal elegance and superiority to declare
and conduct war by licit means.
Grotius opposes Livy’s convincing and authoritative judicium with the contrary
witness of Baldus de Ubaldis, the famous 14th-century Italian jurist. By relying
on the authority of the Roman historian Vegetius, Baldus claims that poisoning
is a legitimate way to conduct war according to the law of nature (this passage is
also quoted by Gentili’^) gut, ¡n Grotius’ view, such interpretation, by only taking
into account natural law as a criterion, overlooks ‘that law which is established by
the consent of nations (a gentium volúntate)'.^ Voluntas gentium is invoked as an
instance of consensus among nations, whenever Grotius wants to emphasize that
custom is the way in which sovereigns often limit the application of natural law.
Also, the reference to Vegetius seems missing - a possible sign of inaccuracy on
the part of Baldus as well as a rhetorical means used by Grotius to discredit his op-
ponent. The fact that the prohibition of poisoning is indeed a custom originating
in the will of sovereigns is further proved by the fact that, unlike the universal,
natural custom of burying the dead, poisoning arms is actually a widespread prac-
tice among ‘barbarians’ and infidels.’^ In fact, Grotius insists that the application
of this prohibition is generally limited to Europeans, and to ‘other civilized peo-
ples like them’ (‘sed quoque contra ius est gentium non universale, sed gentium
« Ibid.
Livy, History of Rome, XLII.18 (Loeb). Livy is the most quoted author by Grotius (Straumann,
Roman Law (n 26) 73).
Livy, History of Rome, XLIL18 (Loeb): ‘haec ad ea. quae ab Eumene delata erant, accessere, quo
maturius hostis Perseus iudicaretur, quippe quern non iustum modo apparare bellum regto animo [my
emphasis], sed per omnia clandestina grassari scelera latrociniorum ac veneficiorum cernebant. The
same example is quoted in Gentili, De armis Romanis 11,4.
Gentili, De iure belli, 11.6; for a wider discussion on this literary topos, see Warren, Literature (n
52)58-61.
IBP, 111.4.15.2,1291.
IBP, 111.4.16.1,1292.
122 PART II: RHETORIC AND HUMANISM: HISTORICIZING CUSTOM A LITERARY HISTORY OF CUSTOM: HUGO GROTIUS 123

Europaearum et si quae ad Europae melioris cultum accedunt’).’® A similar ex-
ample can be found in the discussion of the prohibition to kill captives. Grotius
argues that this custom might still be in force among barbaric peoples: this meant
that ‘Europe had no right to impose their own law on barbaric people’ and inter-
actions should be regulated by mutually acknowledged rules.How should such
reference be interpreted? If the normative content of custom is a matter of rhet-
orical persuasion, can we imply that Grotius is making a relativistic claim about the
plurality of customary rules of ius gentium^ Although not allowed by the European
law of nations, there might be contrary practices, to which the authors quoted by
Grotius (Ovid,*®® Lucan,*®* Silius Italicus,*®^ Claudian,*®’ and John of Salisbury*®*)
bear witness. It could be argued, however, that until a proper persuasive judgment
in favour of those contrary practices is made, they are not legitimate. Here Grotius
only provides examples of contrary customs (interestingly, most of the authors
quoted in this passage are poets), instead of properly formulated judicia arguing in
support of those occurrences.
Although not allowed by the European law of nations, Grotius admitted the ex-
istence of contrary customary practices, and by so doing envisaged the possibility
of a coexistence of ‘pluralism within universalism’.*®5 This dynamism is also wit-
nessed by Grotius’ acknowledgment of alliances with infidels and local elites as a
fundamental way of global interaction.*®^ It could be argued, however, by taking
Grotius argument to its logical conclusion, that until a proper persuasive judgment
in favour of those contrary practices is uttered, they are not considered legitimate.
Grotius’ view seems to suggest that it is hard to convince Europeans of the nor-
mative urgence of a given historical example, unless it strongly resonates with
the cultural values shared by that specific audience. As a matter of fact, Grotius
argues that it is only possible to provide examples of contrary customs as mere
occurrences, rather than as properly formulated arguments (judgments) in sup-
port of those occurrences. This, however, poses a double question: first, whether
judgments formulated by peoples coming from different belief systems could ever
acquire normative status, if ‘persuasiveness’ is only possible within the structural
vocabulary of a given belief system. Second, how could one deduce the customs
and laws of humanity by simply amassing quotes that could easily be refuted by
equally convincing counterexamples? These questions became crucial in the 17th-
century German reception of Grotius’ IBP. Shortly after its publication, Grotius’
masterwork triggered a number of reflections on both methodological and sub-
stantial aspects that impacted significantly on the conceptualization of custom as a
source of law, as I will show in the following chapters.

” Ibid.
” IBP III.9.19.
Ovid, TYistia. Ex Ponto, Loeb Classical Library 151 (AL Wheeler and GP Goold eds. Harvard
University Press 1924) 1.2, v. 17-18.
Press v 303^**^ Loeb Classical Library 220 (J. D. Duffed. Harvard University

SiUus Italiens, Punica, Volume I: Books 1-8, Loeb Classical Library 277 (JD Duff ed. Harvard
University Press 1934) III, V. 273.
Claudian, On Stilicho’s Consulship. I, vs 351-2 in Claudian, Panegyric on Probinus and Olybrius.
Ag^nsi uJinM an 2. War against Gildo. Against Eutropius 1 and 2. Fescennine Verses on the Marriage
ofHonortu^ Eptthalamtum ofHonorius and Maria. Panegyrics on the Third and Fourth Consulships of
on t e Consulship ofManlius. On Stilicho’s Consulship 1, Loeb Classical Library 135
(M Platnauer ed, Harvard University Press 1922).
John of Salisbury, Policraticus (CJ Nederman ed, CUP 2012) VIIL20.
fu and the Law: Rhetorics of Sameness and Difference in the Work
Pre”s 200?)^^*oric and Law in Early Modern Europe (Yale University

■ it ?" / Allies with the Infidel: The Ottoman and French Alliance
tn e tx ee« ” O' ( auris 2013); Guillaume Calafat, Une mer jalousée: contribution à l’histoire de
lasouveratneté (Médtterranée XVIIe siècle) (Éditions du SeuU 2019); Peter Borschberg, Hugo Grotius,
ne Portuguese and Free Tra^ m the East Indies (NUS Press 2011); Peter Borschberg, ‘Grotius and the
E Nijman (eds), The Cambridge Companion to Hugo Grotius
T*?®”“® lYeaties: Negotiating European Expansion, 1600-
1900 (OOP 2015), Arthur Weststeijn, ‘Provincializing Grotius: International Law and Empire in a
Seventeen en ry & ay Mirror, in Martti Koskenniemi and others (eds), International Law and
Empire: Historical Explorations (OUP 2017) 21-38.