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already noted his attack on the idea that natural liberties are inalienable
because a people may voluntarily enslave itself, but he also added a refuta-
tion of the belief that ˜inferior magistrates™ had somehow acquired special
rights that make them the defenders of the peoples™ freedoms. Grotius
was unusually direct in his attack on this point: ˜from the point of view of
those possessing higher authority [inferior magistrates] are private per-
sons. All governmental authority possessed by public of¬cials is in fact
so subordinated to the sovereign power that whatever they do contrary to
the will of him who holds it is divested of authority and is, accordingly,
to be considered as a private act.™20
The assumption that seems to colour many interpretations of Grotius™s
political views is that, since he was so hostile to the monarchomachic re-
sistance theory, he must have been committed to its natural opposite: the
theory of princely absolutism. But that is quite incorrect, since it ignores
that what Grotius had earlier done was to produce a justi¬cation of the
Dutch war with Spain that denied princely absolutism without recourse
18 19
Ibid., pp. 219 and 281“3. Grotius, De Jure Belli ac Pacis, pp. 138“46.
20 Ibid., p. 146.
48 Beyond the anarchical society

to monarchomachism, or even the idea of resistance. Instead, all Grotius
needed in De Jure Belli ac Pacis was the fairly uncontroversial proposition
that ˜a public war ought not to be waged except by the authority of him
who holds the sovereign power™.21 What that does is bring us to what,
for Grotius, is always the really crucial question: who holds the sovereign
power? Or, to put it more precisely: since the sovereign power may be di-
vided, who holds which bits of the bundle of prerogatives and rights that
collectively constitute summum imperium? Ownership of just a fragment
of sovereignty may prove to be a suf¬cient basis for the prosecution of
war since, as Grotius also remarked in De Jure Belli ac Pacis, ˜whoever
possesses a part of the sovereign power must possess also the right to de-
fend his part™.22 With that simple observation he hinted again at his old
justi¬cation of the Dutch ˜Revolt™ as a form of just public war, because
of the way in which the marks of sovereignty had been transferred among
princes, representative institutions and the people. Moreover, he had val-
idated this cause without lurching into what he clearly regarded as the
immoderate and ill-founded position of the monarchomachs. While I do
not mean to denigrate Grotius™s intellectual integrity, it is perhaps worth
noting that both the French and Swedish governments must have been
absolutely delighted with an account of the law of nations that denied
generally applicable theories of resistance, while being ¬‚exible enough to
allow the Dutch to continue their con¬‚ict with Spain, a strategic concern
of the highest order in the context of the Thirty Years War.
Before we leave the issue of divisible sovereignty, it is important to
consider a related topic that is pregnant with signi¬cance for our un-
derstanding of the relevance of Grotius™s work to modern world politics.
As I have just explained, the most obvious backdrop to the treatment of
sovereignty in De Jure Belli ac Pacis is the question of the legitimacy of the
Dutch Revolt, to which Grotius had devoted considerable attention in
his early career, and where he had already worked out a theory of the just
war, rather than resistance, in terms of divided sovereignty. But another
equally important context, especially in his later work, for the idea of
divisible sovereignty was the case of ˜unequal treaties™ (inequali foedere).
As Grotius put it, such an agreement was one that ˜by the very character
of the treaty, gives to one of the contracting parties a permanent advan-
tage over the other; when, for example, one party is bound to preserve the
sovereignty and majesty of the other™.23 The classical examples he used
were agreements between the Romans and their euphemistically titled
21 Ibid., pp. 100“1. It should be noted that Grotius only refers to ˜public war™ in this context;
˜private™ war could be carried on under certain circumstances without the need for the
invocation of sovereign power at all. I will return to this point in the next section.
22 23 Ibid., p. 130.
Ibid., p. 158.
The Grotian theory of the law of nations 49

˜friends and allies™, or between Greek cities and their colonies, which
were legally independent but nonetheless obliged to honour the mother
city and show ˜customary signs of respect™.24
Grotius made two main points about unequal treaties and their impli-
cations for political authority. In the ¬rst place, he argued that the mere
fact of being the inferior party in such an agreement did not in itself
compromise a state™s sovereignty:
a state ( populum) is independent (liberum) which is not subject to the power
( potestati ) of another, even though a stipulation may have been made in a treaty
of alliance that this state shall use its good of¬ces to maintain the dignity of
another state. If, therefore, a state bound by such a treaty remains independent,
if it is not subject to the power of another, the conclusion follows that it retains
its sovereignty (summum imperium).25

It seems to me that Grotius™s line of thinking here is consistent with his
general de¬nition of sovereignty, in that if a state commits itself to any kind
of inferior relationship that falls short of rendering it subject to the will
of another state, then it can be understood as still being fully sovereign,
even if its own freedom of action is curtailed.
As with Grotius™s earlier discussion of the general concept of sovereignty,
however, this idea is swiftly quali¬ed by his second observation about
unequal treaties: that, in practice, they very often lead to some division
of the sovereign power, to the bene¬t of the superior party, because ˜he
who has the vantage in a treaty, if he is greatly superior in respect to
power, gradually usurps the sovereignty properly so called™.26 Although
Grotius describes this development as a usurpation, he adds that if the
people in question, or their rulers, do not offer resistance, in time ˜the
part of the weaker passes over into the right of ruling on the part of
the stronger . . . then either those who had been allies become subjects, or
there is at any rate a division of sovereignty ( partitio ¬r summi imperii )™.27
Grotius was not particularly enthusiastic about the justi¬ability of re-
sistance even against an act of usurpation. He was worried, ostensibly
at least, about the possible dangers of using violence against one™s own
state, people and native land, and argued that a usurper should only be re-
sisted if his position was maintained by force, if a pre-existing law speci¬-
cally permitted resistance under those circumstances, or if resistance was
mandated by the original and true owner of the sovereign prerogative
in question.28 Those speci¬cations were, of course, suf¬cient to justify
Dutch activities, where it would have been entirely plausible to argue that
all three conditions applied against Spanish usurpations. Nevertheless, it
24 25 Ibid., p. 131. 26 Ibid., p. 135.
Ibid.
27 28 Ibid., pp. 159“62.
Ibid., p. 136.
50 Beyond the anarchical society

is worth bearing in mind that the mere fact of a usurpation is not suf¬cient
to legitimize a war of resistance.
Although it is not, strictly speaking, an example of an unequal treaty, it
is interesting to consider a speci¬c case from Grotius™s early work which
re¬‚ects some similar issues concerning how, in practice, the division of
sovereignty might work: the alliance between the Dutch and the king of
Johore against the Portuguese. This issue is an important part of Grotius™s
treatise on the law of prize, De Jure Praedae Commentarius, of which only
the excerpt justifying the freedom of the seas was published during his
lifetime (the entire text was not published until its rediscovery in the
nineteenth century). Grotius™s purpose in writing this book was to provide
a justi¬cation for the seizure by the Dutch of a Portuguese ship, the Santa
Catarina. The bulk of the text is taken up with a discussion of the grounds
for the Dutch war with the Portuguese, the thrust of which is to disprove
that the Portuguese could ever have acquired sovereignty over the high
seas or an exclusive right to trade with the East Indies, and that the Dutch
were merely defending their own rights in that respect through the only
recourse available to them: i.e., force. Moreover, Grotius argued, the
other party in the war, the king of Johore, was a sovereign ruler in his own
right, and therefore perfectly entitled to engage in a public war against
the Portuguese, since they had offended his sovereign prerogatives; the
Dutch had done nothing wrong in allying themselves with him because
˜alliances and treaties with in¬dels may in many cases be justly contracted
for the purpose of defending one™s own rights™.29
Grotius, in short, could offer two main justi¬cations for the seizure
of the Santa Catarina, to suit two different points of view on the legal
context of the war. In so far as judicial recourse was lacking, the Dutch
were entitled to engage in a private war against the Portuguese, and were
entitled to the prize as recompense for the injuries they had suffered.
(I will look at this line of argument in more detail in the next section.) His
second argument relied on the sovereign authority of the king of Johore.
What probably ¬rst catches the attention here is Grotius™s positive atti-
tude towards the rights of this non-European ruler. Not only did Grotius
assert the validity of treaties with heathens, he went further to praise
the rationality and sagacity of the ˜Indians of the Orient™, and warned
about the way in which ˜shameless lust for property was wont to take
cover under the excuse of introducing civilization into barbaric regions™.30
He further argued that the Johorian king™s decision to go to war against
the Portuguese was clearly a just one: ˜what could be more inequitable
29 Hugo Grotius, De Jure Praedae Commentarius, trans. Gwladys Williams (Buffalo: William
S. Hein, 1995), p. 315.
30 Ibid., p. 222.
The Grotian theory of the law of nations 51

than a prohibition imposed by a mercantile people upon a free king to
prevent him from carrying on trade with another people? And what would
constitute interference both with the law of nations and with the distinct
jurisdictions of different princes, if such a prohibition does not?™31
These arguments have led numerous scholars to praise Grotius™s en-
lightened attitude towards non-European peoples.32 I will return to that
idea, which does indeed have some merit, later; for now, though, I merely
want to point to a somewhat different aspect of the argument in De Jure
Praedae which was dealt with towards the end of the book in a rather
suspiciously off-hand way. It is entirely understandable that Grotius was
so anxious to praise the king of Johore and af¬rm his sovereign rights.
He was, after all, a strategically important Dutch ally in a war against the
Portuguese that was a matter of life and death for two maritime powers
whose wealth depended on trade. Nevertheless, in giving the king this
glowing report, Grotius created a problem for himself in terms of the
legitimate ownership of the prize in question. The Dutch may have won
it lawfully from the Portuguese, but, if they were ¬ghting a public war on
behalf of Johorian authority, it was clear, as Grotius acknowledged, that
˜by natural law that prize was vested in the ruler of Johore himself™.33
Of course, the Dutch had hardly gone to all the trouble of capturing the
Santa Catarina only to turn it over to another ruler, no matter how good
an ally he was. The dif¬culty was swiftly solved, to Dutch satisfaction,
through a couple of neat legal arguments that they and other Europeans
(especially the British) would use time and again as they established their
position in the East Indies. Although the prize was technically the prop-
erty of the king of Johore, Grotius argued,
it was also capable of becoming a Dutch right through a grant on his part. More-
over, since war was waged on his behalf by means of ships belonging to the East
India Company, at the Company™s expense and at its peril . . . as well as by the
exertions of the Company™s servants, without any formal agreement as to com-
pensation, the commonly accepted usages of war, con¬rmed by natural equity,
clearly indicate that the prize in question was acquired ipso iure for the . . .
[East India] Company.34
Grotius was not saying anything here that was out of keeping with his
broader views on sovereignty. Kings, peoples and other institutions could,
as we have seen, transfer their legal rights to one another if they so chose;
they could transfer all of their rights or just a few of them; they could at-
tach whatever conditions they liked in the process. If such transfers could
31 Ibid., p. 315.
32 An excellent example is Charles Alexandrowicz, An Introduction to the History of the Law
of Nations in the East Indies (Oxford: Clarendon Press, 1967).
33 34 Ibid.
Grotius, De Jure Praedae, p. 316.
52 Beyond the anarchical society

be made between Europeans, why should they not also be made between
Europeans and non-Europeans? After all, as Grotius had argued, the lat-
ter were no different in terms of the rights they originally possessed, nor
did they lack the sagacity or rational capacity to make the appropriate de-
cisions for themselves. If they wanted to transfer some of their sovereign
prerogatives to, say, a European trading corporation in exchange for mil-
itary services or a generous loan, what was a humble lawyer to do but
record the transaction?


Grotius on private property in the law of nations
As this discussion of the seizure of the Santa Catarina has indicated,
Grotius did not only talk about ˜public wars™ between the holders of
sovereign powers. He was also interested in ˜private wars™ between in-
dividuals or corporations who lacked sovereignty, but nevertheless held
certain rights that they were entitled to defend by violence if judicial re-
course was denied or unavailable to them. The latter topic was really to
the fore of his commentary on the law of prize, his re¬‚ections on the
public authority of the king of Johore notwithstanding, and it remained a
key theme in De Jure Belli ac Pacis.35 The crucial point here is that the law
of nations was not, in Grotius™s scheme, exclusively a law for nations; it
included rights and duties, albeit limited ones, for individuals and private
corporations. While he conceptualized the rights of public authorities in
terms of their possession of marks of sovereignty, the main vehicle that
Grotius used to think about the rights of private individuals and bodies
was the concept of property ownership. To complete our picture of the
Grotian law of nations, then, I want to look more closely at his theory
of how individuals may acquire property, and under what circumstances
they are entitled to defend their rights with force.
Grotius™s analysis of private property rights drew heavily on classical
Roman law to identify two different kinds of ownership in the law of
nations, each of which was acquired in its own way.36 His account rested
on a distinction between the original acquisition of property, before the
35 The distinction is made clear in Grotius, De Jure Belli ac Pacis, p. 91, where Grotius also
talks about mixed wars (i.e., ones between public authorities and private corporations).
Although only a ˜lawful authority™ may wage a public war, private and mixed wars are
not, ipso facto, illegitimate.
36 Roman law dealt with many other forms of property and ways of acquiring it. Occupatio
and dominium aside, however, Grotius argued that these were not part of natural law
or the law of nations properly understood, but were contained within civil law. Other
aspects of property rights were relevant only to ˜each particular people in a state of peace™,
and it was therefore improper to describe them under the heading of the law of nations:
Grotius, De Jure Belli ac Pacis, p. 295. For a general discussion, see W.W. Buckland,
A Manual of Roman Private Law, 2nd edn (Cambridge University Press, 1947).
The Grotian theory of the law of nations 53

establishment of civil societies; and the institution of private property
within civil society, founded on the consent of its members. According to
Grotius, the ¬rst of these operated according to the principle of occupatio,
which can be understood as appropriation; in the second context, prop-
erty is called dominium, which is probably nearest to what we would call
ownership today. The key to occupatio is the proposition, which Grotius
had ¬rst advanced in De Jure Praedae, that everyone has a natural right
to self-preservation. He began from an idea of individual self-ownership,
observing that individuals already hold some rights even before the cre-
ation of the civil societal institution of dominium, because ˜life, limbs and
liberty would in that case be the possessions belonging to each, and no
attack could be made upon these by another without injustice™.37 He also
claimed that at this early stage in human history all property in the world
was held in common, with no individual ownership of land or things.
And, since individuals were entitled to do what they must for survival,
their rights to life, limbs and liberty were therefore extendable in this
natural state through appropriation, such that ˜each man could at once
take whatever he wished for his own needs, and could consume whatever
was capable of being consumed™.38
The right to appropriate through occupation, however, exists only as a
natural right. Grotius argued that at some point in human history, as pop-
ulation levels increased and people began to form themselves into social
associations, they transformed their naturally acquired possessions into a

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