Comparative European Legal History
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Rights and International Law
Hugo Grotius
Thirty Years’ War
The Thirty Years’ War was a bloody war waged across Europe, primarily based in Germany,
it involved many different countries (Holy Roman Empire, Britain, France, Spain, Austria,
Sweden and Denmark). The cause of the war was religion – the age-old dispute between
Catholicism and Protestantism. The war ended in 1648 culminating in the Treaty of
Westphalia. The traces of the war can be found in Germany, as early as the 16​th century, with
Martin Luther’s teachings on the concept of indulgences. The war was a bloody war; it was
the worst war Germany had experienced until the Second World War1 killing 20% of the
German population2.
The Thirty Years' War began in 1618 - Ferdinand II, the Holy Roman Emperor of Bohemia
(Czech Republic), imposed Catholicism in Bohemia and prevented the practice of
Protestantism. The Protestants in Bohemia rebelled and other states intervened. This caused
there to be the division of two sides: the Catholics (Ferdinand and the German Catholic,
Papacy, and Spain) and the Protestants (Britain, the Netherlands and Denmark)3.
Initially, the Catholic side was strongest and by 1629 had conquered most of the Protestant
part of Germany, and a large part of Denmark4. However, in 1630 the Swedish army entered
the war and pushed back Ferdinand’s army – the Spanish entered in 1634 and forced the
Protestants out of Germany. This caused retaliation from the French; declaring war on Spain
(1635) and on the Holy Roman Emperor (1636). The war continued until the French and
Swedish military defeat resulted in Habsburgs withdrawing. This led to the peace treaty of
Westphalia.
The Treaty of Westphalia, 1648
The treaty was signed in 1648, in Germany, and symbolized the end of the thirty years of war
with religious tolerance between the Catholics and Protestants. “The Peace of Westphalia is
1
‘Thirty
Years’
War’
(Robert
Cowley
and
Geoffrey
<http://www.history.com/topics/thirty-years-war> accessed 15 February 2017.
2
​Ibid.
3
​Ibid.
4
​Ibid.
Parker,
History)
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regarded as a milestone in the development toward tolerance and secularization.”5 There
treaty also provided new boundaries, with Switzerland given their independence.
Grotius, born on the 10th April 1583, was a legal jurist and writer and has been christened the
“father of international law.”6 Grotius demonstrated remarkable intelligence at a young age starting university at the age of 12, and joined the bar age 17. In 1613, he was appointed
Pensionary of Rotterdam. However, his success in the Netherlands was short-lived, and in
1619 he was sentenced to prison for his ideas of religious tolerance; he managed to escape,
and he ended up living in poverty and exile in France. He later returned to the Netherlands,
but was exiled again and then lived in Germany. Grotius wrote 'De Jure Belli ac Pacis'
(known as the Law on War and Peace) in 1623, during the period of Thirty Years' War.
Hugo Grotius
The Life of Hugo Grotius
Grotius, born on the 10th April 1583, was a legal jurist and writer and has been christened the
“father of international law.”7 Grotius demonstrated remarkable intelligence at a young age starting university at the age of 12, and joined the bar age 17. In 1613, he was appointed
Pensionary of Rotterdam. However, his success in the Netherlands was short-lived, and in
1619 he was sentenced to prison for his ideas of religious tolerance; he managed to escape,
and he ended up living in poverty and exile in France. He later returned to the Netherlands,
but was exiled again and then lived in Germany. Grotius wrote 'De Jure Belli ac Pacis'
(known as the Law on War and Peace) in 1623, during the period of Thirty Years' War.
Political Context
One reason why Grotius felt there should be an international law based upon the application
of natural law was that there was no longer an Emperor or Pope to act as the universal
authority.8 He agrees with Aristotle’s condemnation of persons who wish for lawful rulers
among themselves but have no care for justice among nations.9
'​ ​Peace of Westphalia' (Anuschka Tischer, Oxford Bibliographies) <
http://www.oxfordbibliographies.com/view/document/obo-9780199743292/obo-9780199743292-0073.xml>
accessed 15 February 2017.
6
‘Hugo Grotius’ (Yasuaki Onuma) <https://global.britannica.com/biography/Hugo-Grotius> accessed 15
February 2017.
5
7
‘Hugo Grotius’ (Yasuaki Onuma) <https://global.britannica.com/biography/Hugo-Grotius> accessed 15
February 2017.
8
9
Robinson O, European Legal History, Oxford University Press, 3rd Ed, 2010, pg 216.
Ibid, Pg 217.
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The Right, Grotius says, is twofold. On one hand we have the private right established for the
advantage of each individual. On the other hand there is the more superior right involving
claims which the State has upon individuals and their property for the public good.10 The
State also has authority over which civil rights are conferred on their citizens because a civil
right is derived from civil power which is the sovereign power of the State. An international
law however is more extensive, because it derives power from all nations or at least those
which find a commonality among their rights.11
Grotius was inspired by the misery of contemporary warfare seen during the 30 year’s war
which had torn central Europe apart because, within the clamour of conflict, the clarity of law
could not be heard.12 He insisted that humankind craves for a society which is peaceful and
corresponds with reason. The rules that he proposed could apply in any circumstance at any
time and were capable of relating to international affairs as well as matters of private law.13
The aims of this society desired by citizens were furthered by the creation of governments.
As for war, Grotius believed that it was often occasioned by the violation of rights and should
not be resorted to unless there were rights which required enforcement.14
Rights were seen to be capable of limiting the authority of government in a time when
sovereign monarchs could easily issue morally incorrect decrees. Grotius presented the
thought that a people who have the legal competence to submit themselves to a single
authority should be able to do so in a way which transfers any legal right to govern. This
power is contained within Grotius’ notion of a right. The government, as a right-holder, is
presumed to have good sense and a natural sociability which will determine the distribution
of rights. Grotius rejected that there was a single best form of government to facilitate this
distribution because there are many different ways of life and citizens are free to choose
which they prefer just as they are free to select the form of government.15 In this sense, he
states that there is no way to solve the political state and one of his main innovations was to
turn political philosophy away from the quest for an ideal form of government by admitting
the possibility of different, equally legitimate forms derived from the people’s exercise of
rights in different circumstances.16
Legal Context
Grotius work On the Law of War and Peace was the first time a philosopher tried to create a
system based on natural jurisprudence which of course relied on the law of nature.
Furthermore, he believed that humans had an innate desire for social order and good and by
10
Grotius H, On Law of War and Peace, Batoche Books, Kitchener, 2001, Pg 8.
Ibid, Pg 13.
12
Robinson O, European Legal History, Oxford University Press, 3rd Ed, 2010, Pg 216.
13
Ibid, Pg 217.
14
Edmundson W, An Introduction to Rights, Cambridge University Press, 2004, Pg 18.
15
Edmundson W, An Introduction to Rights, Cambridge University Press, 2004, Pg 19.
16
Ibid, Pg 20.
11
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appealing to this war between nations could be avoided, premised that human beings have a
desire for self-preservation. Grotius believed in state's sovereignty since he stated, if a state
must decide what is common good for another state, this involves self-interest diminished
from the natural order.17
After On the Law of War and Peace five characteristics of Grotius international law emerged;
1.
Natural laws are moral rules known to all humans through their rationale and social
behavior. Grotius distinguished natural law from moral law although the former shares a
quality with latter since they both dictates the rational conduct of an Individual in a society.18
2.
Desire for an international community, which would have to wait, since sovereign
states were first deemed equal in the 20​th​ century.19
3.
These states would consist of individuals with own rights even though the state would
continue to be privileged but the idea to be equal under the law and other human rights
started take shape.20
4.
The states had to be marked by sovereignty – To be able to create and enforce its own
rules within its own territory. Therefore, Grotius concluded the war could not be justified on
both ends. Grotius held that where only three justified grounds for war:
a.
Self-defense
b.
Recovery of property and
c.
To enforce punishment
5. Worthwhile noting is that Grotius had no concepts of international institutions.21
Religious Context
Religion has an impact in Hugo Grotius’ texts, for example in “On law of war and peace”
many of his thoughts about justice and rights are somehow related to God and religion. This
is not surprising considering Grotius’ background and the time he lived. Grotius lived most of
his adult days at the time of the Thirty Years’ War, also called as “religious war”, where
Catholics, Lutherans and Calvinists were fighting against each other. Moreover, it was partly
because of his religious view why Grotius was sentenced in imprisonment (1619-20). Grotius
also wrote a religious book “On the Truth of the Christian Religion”, where he developed his
famous religious theory about “Governmental”.22 We can see that religion had an essential
17
Bull.H, Kingsbury. B& Roberts. A, Hugo Grotius and international relations, Clarendon Press, Oxford, pg. 8
and 16.
18
​Ibid pg.78.
19
Ibid pg.80,221, 222 and 225.
20
I​bid pg.86.
21
​Ibid pg. 87-90.
22
Edmundson, William A.: ​An Introduction to Rights, Cambridge University Press, Cambridge, 2004, p. 17-18.
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influence in Grotius’ thoughts and that’s why the religious context must be taken into
consideration.
Despite Grotius’ religion based way of thinking, he wanted to depart law from certain
religious traditions. His view of the Natural Law wasn’t dependent on the existence of God,
but, to him, law was so unalterable, that it cannot be changed even by God himself. The
natural right was above the law, including the human law, and God revealed it to humans.23
One of the Grotius’ major innovations was that the study of rights and morality should be
separated from theology. According to him, it was a necessity on the road to preventing
religious wars and this way it could became possible to peacefully resolve disputes between
nations of different religions. As mentioned Grotius himself wasn’t skeptic on theology, he
wanted merely distinguish it from the field of law.24
Grotius’ thoughts about free man and free choices were to affect the ideas of the
Enlightenment. One of the basic ideas of the Enlightenment, that a man has to become free
from the Church, has its roots in Grotius’ thoughts.25
Influence on Modern International Law
Today, we more than ever live in the international society that Hugo Grotius describes.
Grotius has had influence on modern international law because of the topics he touched on
already in the seventeenth century: the freedom of the seas, the justification of war and the
treatments of persons involved in wars, among other things. All of these issues are still part of
international law. The greatness lies in that Grotius separates international law - law of
nations - from municipal law. This division is applicable in modern day society as well. The
UN Charter deals with some of the aspects that were central to Grotius: for example
questions of sovereignty and the use of force between nations26 . The time elapsed between
Grotius’ days and the founding of the UN is long, but Grotius work could be seen as a
starting point.
It is hard not to mention Hugo Grotius doctrine on the high seas when talking about Grotius
impact on modern international law. Grotius thought the high seas to be open to all res
communis, not being appropriable. Today, the freedom of the high seas is a basic principle of
international law, effective with few exceptions27.
As written during the section regarding the religious context of Grotius work, Grotius saw it
as essential to separate the study of rights from theology, if there were to be a basis for
Grotius, Hugo: ​On law of war and peace, Batoche Books, Kitchener, 2001, p. 9-10.
Edmundson, William A.: ​An Introduction to Rights, Cambridge University Press, Cambridge, 2004, p. 20.
25
Introducing lecture in Constitutional Law, Comparative European Legal History, Lund University, spring
2017.
26
​Bull, Hedley (red.), ​Hugo Grotius and international relations, New ed, Clarendon, Oxford, 1992, p. 268.
27
​Shaw, Malcolm Nathan, ​International law, 7. ed., Cambridge University Press, Cambridge, 2014, p. 554 ff.
23
24
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peacefully resolving disputes between nations of different religions28. This is one of Grotius
greater contributions, and it is one that is a reality today in international law where religious
aspects are absent.
In a more globalised world, justice between states is a very important question that is given a
lot of thought. Even though the Thirty Years’ war took place in Europe during Hugo Grotius
days, Grotius discussed this topic. State sovereignty is a basic principle of modern
International Law. Grotius agreed to this, as earlier mentioned.
What about Grotius’ thoughts on war? Article 2.4 of the UN Charter, concerning use of force,
does not mirror Grotius’ thoughts, but he did see self-defence as one of the reasons as to why
war would be permitted. This is today the only exception. Grotius saw humanitarian
intervention as a possible reason for just war. This is not the case in modern international law,
but there has been a hot debate going around over this matter. NATO argued that the
Operation Allied Force (1999) was just use of force because of humanitarian intervention.
The same can be said for R2P, responsibility to protect. Preventive war undertaken because
of fear of an imminent attack, was also legitimate according to Grotius29 . It is far fetched to
see the discussions held today as directly linked to Grotius, but it is interesting that things he
touched on already in the seventeenth century are still being discussed. Grotius tried to
exclude ideological considerations as the basis of just war and attempted to redefine the just
war. Grotius also proposed diplomacy as a first attempt to solve conflict.
Grotius’ thought of justice as a matter of respecting and exercising individual rights is also a
great contribution30 . There is also traces of Natural Law in modern public international law.
There are sayings in documents of international law mentioning for instance “intricate
values”.
These are just a few examples of how modern international law can be traced back to
Grotius’ thoughts. It can be difficult to see the influence of a single person on a topic so
widespread and important as international law, and Grotius has his critics. Safe to say,
however, is that Grotius have had influence on later scholars, and Grotius did lay the
foundations of the Natural Law of the Enlightenment31.
Bibliography
Bull.H, Kingsbury. B& Roberts. A, ​Hugo Grotius and international relations, Clarendon
Press, Oxford.
​Edmundson W, An Introduction to Rights, Cambridge University Press, 2004, p. 19
​Ishay, Micheline R., ​The history of human rights: from ancient times to the globalization era : with a new
preface, [New ed.], University of California Press, Berkeley, 2008, p. 100.
30
​Edmundson, William A.: ​An Introduction to Rights, Cambridge University Press, Cambridge, 2004, p. 18.
31
​Robinson, O. F., Fergus, T. D. & Gordon, William M., E
​ uropean legal history: sources and institutions, 3.
ed., Butterworth, London, 2000, p. 216 ff.
28
29
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Edmundson W, ​An Introduction to Rights, Cambridge University Press, 2004
Hugo Grotius’ (Yasuaki Onuma) <https://global.britannica.com/biography/Hugo-Grotius>
accessed 15 February 2017.
Grotius, Hugo: ​On law of war and peace, Batoche Books, Kitchener, 2001
Ishay, Micheline R., ​The history of human rights: from ancient times to the globalization era:
with a new preface, [New ed.], University of California Press, Berkeley, 2008
'Peace
of
Westphalia'
(Anuschka
Tischer,
Oxford
Bibliographies)
<
http://www.oxfordbibliographies.com/view/document/obo-9780199743292/obo-9780199743
292-0073.xml> accessed 15 February 2017.
Robinson, O. F., Fergus, T. D. & Gordon, William M., ​European legal history: sources and
institutions, 3. ed., Butterworth, London, 2000
Shaw, Malcolm Nathan, ​International law, 7. ed., Cambridge University Press, Cambridge,
2014
‘Thirty
Years’
War’
(Robert
Cowley
and
Geoffrey
Parker,
<http://www.history.com/topics/thirty-years-war> accessed 15 February 2017.
History)
7