Galtland Index

The Rights of War and Peace (De Jure Belli ac Pacis)

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The Rights of War and Peace (De Jure Belli ac Pacis)

The Rights of War and Peace is Hugo Grotius’s De Jure Belli ac Pacis (1625), conventionally regarded as the founding work of modern international law and a pivotal moment in the natural-law tradition: the point at which natural law’s content is made discoverable by reason from human nature rather than from revelation. The detachment is partial, and how partial is disputed: the definition that refers an act’s being commanded or forbidden to God as the author of nature also calls such acts binding or unlawful in themselves. The wiki has previously overstated the break.

The Secularizing Move

Grotius locates the source of natural law in the rational and social nature of man (appetitus societatis, the desire for ordered society) rather than in divine command alone. The famous formulation comes at §11 of the prefatory essay — the Prolegomena, which the 1738 English translation renders as the Preliminary Discourse:

And indeed, all we have now said would take place, though we should even grant, what without the greatest Wickedness cannot be granted, that there is no God, or that he takes no Care of human Affairs.

— Hugo Grotius, De Jure Belli ac Pacis, Preliminary Discourse §XI (1738 Morrice translation)

The concession is the point of the sentence and is easy to lose. Grotius is not proposing a godless starting point; he calls supposing it a wickedness, and marks the supposition as one he is making counterfactually in order to show that natural law’s content is so rooted in human nature that it would hold regardless. That is what makes it a common standard across confessional lines — exactly what post-Reformation Europe, tearing itself apart in religious war, needed.

Natural Right, Property, and Just War

From this foundation Grotius derives a body of natural rights — to self-preservation, to property, to the keeping of promises (pacta sunt servanda) — and builds the law of nations on it: rules governing when war may justly be waged, what may be done in the waging, and the good faith owed in agreements. The middle part is not a code of restraint, and reading it as one inverts Grotius. He separates “that which is done with bare Impunity, or which is even defended as lawful among foreign Nations, from that which is really blameless”: the customary external right of a solemn war extends the licence of ill treatment even to women and children, and it is the temperamenta — the moderation Book III urges from natural right and moral duty, sparing children, women “unless highly criminal”, and the old — that counsels otherwise. What the law of nations permits with impunity and what is blameless are different questions, and Grotius keeps them apart. Just cause is demanded of any war, but sovereign authority is not: it marks off the solemn public war of the law of nations, private war being “that which is made between private Persons, without publick Authority”. Grotius holds “That some Sort of private War may be lawfully waged, as far as respects the Law of Nature” even after courts exist — the right surviving in the cases “when the Way to legal Justice is not open”. His insistence that obligations bind sovereigns, not merely subjects, and that there is a law above the will of any prince, is the natural-law tradition applied to relations between states.

Place in This Wiki

Grotius stands between Aquinas and Locke in the lineage. He inherits the Scholastic natural-law apparatus, loosens its dependence on revealed theology, and hands a rights-and-contract version of it to the later natural-rights theorists Locke draws on. He is a theorist of obligation and a defender of property and promise-keeping, not a libertarian or an anti-statist; the wiki uses him for the secularization that made natural rights a portable, cross-cultural standard.

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Galtland Index. “The Rights of War and Peace (De Jure Belli ac Pacis).” https://index.galtland.org/references/the-rights-of-war-and-peace

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