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publicly recognized institution, dominium, regulated by laws made by the
appropriate public authority. This fundamental change in the character
of property could not, in Grotius™s view, justly be the product of acts
of individual will, ˜for one could not know what things another wished
to have, in order to abstain from them, and besides several might desire
the same thing™.39 It therefore had to come from ˜a kind of agreement™,
and he supposed that, once the idea of community ownership had been
abandoned and further unilateral appropriation was no longer allowed,
the members of society simply decided to con¬rm each other in their
ownership of what they had already occupied: ˜all agreed, that whatever
each one had taken possession of should be his property™.40
As we saw in the previous section, the idea of a pre-social condition
of natural liberty was already well established in early modern thought,
37 Grotius, De Jure Belli ac Pacis, p. 54.
38 Ibid., p. 186. In the very early history of mankind, ˜when the human race could assemble™
as a whole, community of property could coexist with the general division of lands into
individual possession; as soon as such assembly became impossible, but before the cre-
ation of societies and dominium, occupatio became the only form of legitimate acquisition
(ibid., p. 206).
39 40 Ibid., p. 190.
Ibid., p. 189.
54 Beyond the anarchical society

and was closely associated with the monarchomachic belief that it en-
dowed everyone with rights which they retained into political society.
Grotius broadly agreed with this description of the state of nature, but
his disagreement with the justi¬cation of resistance on these grounds
sprang from his view that they were wrong to regard the rights asso-
ciated with natural liberty as inalienable. Depending on the circum-
stances under which people agreed to join together in a civil society,
translating their property rights into dominium, they might even give up
their rights over their persons in such a way as to deprive themselves
of any justi¬cation for resistance against the holder or holders of the
sovereign power. Although he believed that a public authority should al-
ways act with due regard for ˜human frailty™, Grotius believed that the
argument from natural property rights could only offer a very slender
justi¬cation for resisting public authority, even when the individual in
question was facing death.41 In that respect, and in comparison with
later Lockean theories of appropriation as the basis for enduring political
rights, Grotius™s theory appears highly conservative. In Karl Olivecrona™s
view, for example, the central difference between Grotius and Locke is
that the former ˜allowed appropriation without the consent of others only
in the earliest stage of the world and presumably for very limited pur-
poses; it lost its importance with the introduction of dominium by way of
convention™.42
It does seem likely that Grotius saw the idea that individuals have a
natural right to acquire property as defunct in the context of the societies
he lived in, where ownership was presumably to be understood in terms
of dominium. But in a different way, Grotius anticipated an element of the
more radical theory of appropriation that was later to be at the heart of the
Lockean account. Grotius™s distinction between occupatio and dominium
rests, as we have seen, on the fact that the associated rights belong to very
different situations: the state of nature and civil society. Olivecrona is cor-
rect to observe that one way in which Grotius understood this distinction
was temporal, in the sense that the state of nature was part of the early
history of mankind that preceded the formation of civil societies. At the
same time, however, Grotius also took a geographical view of the distinc-
tion, observing that the natural right to occupatio might still be exercised
and defended ˜if one ¬nds himself in places without inhabitants, as on
the sea, in a wilderness, or on vacant islands™.43 And one would be justi-
¬ed in supposing that the main example he had in mind here was not so
much the high seas, where the Dutch were defending their rights to free
navigation on the basis of the argument that the seas could never be made
41 42 Olivecrona, ˜Locke™s Theory of Appropriation™, 223.
Ibid., pp. 149 and 151.
43 Grotius, De Jure Belli ac Pacis, p. 92.
The Grotian theory of the law of nations 55

subject to dominium, but rather that locus classicus of the Lockean theory
of appropriation, America, where, according to Grotius, ˜the community
of property, arising from extreme simplicity™ could still be observed even
in his era.44
The question about the property rights of indigenous peoples in
America had already been thoroughly debated when Grotius offered
this opinion, and three main positions had previously been worked out.
Some medieval canon lawyers, such as Hostiensis, had denied that non-
Christians had any rights whatsoever, either public rights of sovereignty
or private rights to property, simply on the grounds that they were in-
¬dels or heathens. This view was rejected in the context of America,
however, by Franciscus de Vitoria, who had countered by insisting that
being a non-Christian was not enough by itself to serve as a disquali-
¬cation from holding property or public of¬ce, and that the American
Indians could therefore be regarded as rights-holders; Vitoria also ar-
gued that there was no evidence to suggest that the Indians were inca-
pable of reason, which was another possible reason for denying them
private and public rights.45 Both the Hostiensian and Vitorian positions
were somewhat extreme in their implications. Hostiensis™s argument ef-
fectively denied any rights whatsoever to non-Christians, and Vitoria was
certainly not alone in ¬nding that an uncomfortable and undesirable con-
clusion; many others, such as the Polish canon lawyer Paulus Vladimiri,
had already offered similar rebuttals.46 Vitoria, however, left Europeans
in the situation where they had to show such a degree of respect for other
peoples™ sovereignty and property that, if taken seriously, it would imply
handing back the lands the Spanish had conquered in the Americas and
would have put a halt to further colonialism.47 Because of these prob-
lems, the most popular position in the later middle ages and after the
Conquest was a more intermediate one, originally associated with Pope
Innocent IV, which argued that non-Christians could keep their pub-
lic and private rights, provided that they properly observed natural law.
44 Ibid., p. 187. On this theme in Locke™s work, see Herman Lebovics, ˜The Uses of America
in Locke™s Second Treatise on Government™, Journal of the History of Ideas, 47 (1986),
567“81, and James Tully, An Approach to Political Philosophy: Locke in Contexts
(Cambridge University Press, 1993).
45 Vitoria may well have been worried about the possibility that the denial of rights to
Indians on the grounds that they were non-Christians could have led on to a denial of
similar rights to sinners, on the grounds that they were not good Christians, a doctrine
of John Wycliffe that Vitoria was anxious to refute. See Franciscus de Vitoria, De Indis et
De Jure Belli Re¬‚ectiones, trans. John Pawley Bale (Washington: Carnegie Institution of
Washington, 1917), pp. 121“5.
46 Stanislaus F. Belch, Paulus Vladimiri and his Doctrine Concerning International Law and
Politics, 2 vols. (London: Mouton, 1965).
47 See Anthony Pagden, Lords of all the World: Ideologies of Empire in Spain, Britain and
France, 1500“1800 (New Haven: Yale University Press, 1995).
56 Beyond the anarchical society

The canonists loved this, because it attached considerable weight to
the Pope™s authority as the chief interpreter of natural law, but it was
also broadly acceptable to both the supporters and the deniers of non-
Christians™ rights, since it began by granting those rights, while at the
same time offering a rationale for removing them if any breaches of nat-
ural law occurred.48
As Richard Tuck has noted, Grotius™s general position on the question
of non-Christians™ rights was very close to Innocent™s doctrine that there
was nothing to stop them having rights, but that they were still subject
to natural law and could be punished by Christian rulers for breaches of
the natural law.49 But with regard to property, Grotius introduced two
further ingenious twists. First of all, his analysis of occupatio effectively
turned the debate about the legitimate acquisition of property in America
from one about the moral or intellectual qualities of the Indians into
one about whether or not they actually had exercised their natural right
of appropriation. It was no longer enough simply that the indigenous
peoples of America not be living in a way that breached natural law; they
also had to have exhausted all the possibilities for appropriation, and
perhaps even formulated their own civil societal institution of dominium,
if Europeans were to be denied rights to appropriate property in America
for themselves. The fact that the American Indians had not done so, but
continued to hold large tracts of land in what Grotius took to be a simple
state of communal property, was extremely permissive towards colonial
settlement.
There is a second, and even more important, strand to Grotius™s ar-
gument, where he suggested that appropriation could continue even in
places where another ruler™s jurisdiction had been established and was
being properly exercised. Grotius took pains to argue that occupatio has
a ˜twofold™ implication (occupatio duplex): it is the basis for both the
public rights of sovereignty (imperium), and the private rights of own-
ership (dominium). In this context, he also distinguished between two
different subjects to which sovereignty applies. On the one hand, in its
˜primary™ sense, sovereignty is jurisdiction over persons; in its other, sec-
ondary, sense, it relates to the possession of territory. Usually, Grotius
conceded, these two attributes of sovereignty and ownership are acquired
together by a single act, but, just as the public rights associated with
48 For an excellent general treatment of medieval thinking on this issue, see James
Muldoon, Popes, Lawyers and In¬dels: The Church and the Non-Christian World, 1250“
1550 (Philadelphia: University of Pennsylvania Press, 1979); for legal discussions after
the Conquest, see L.C. Green and Olive Dickason, The Law of Nations and the New World
(Edmonton: University of Alberta Press, 1989).
49 Tuck, The Rights of War and Peace, p. 103.
The Grotian theory of the law of nations 57

jurisdiction over persons are separable from one another, so the public
dimension of jurisdiction always remains distinct from the private rights
of ownership.50 In other words, foreigners may, through appropriate pro-
cedures of course, acquire ownership rights to territory in another state,
without interfering with the sovereign jurisdiction that a ruler has over
his or her subjects. Grotius illustrated his point with a quotation from
the classical author Siculus (from a work entitled On the Condition of the
Fields): ˜When the lands assigned to colonies proved to be insuf¬cient,
those who were in charge of the allotment and division assigned to future
citizens lands which they had taken from neighbouring territories. The
jurisdiction over the lands which they assigned nevertheless remained
under the control of those from whose territory they were taken.™51
This may seem a little arcane at ¬rst, but it is essential to realize how
signi¬cant this thesis about the separability of jurisdiction and ownership
is. Although Grotius did not make the point entirely clear, it seems at least
plausible to suppose that this might permit ownership rights to be estab-
lished on territories in other states simply for the reason that they had
been never been cultivated or had been vacated for one reason or another;
certainly, Grotius said that rights could be transferred ˜not only by ex-
press agreement, but also by abandonment of ownership and the occu-
pation which follows it or assumes a new force from it™.52 It might be
the case that ˜natural equity™, which we saw was used in De Jure Praedae
to justify the Dutch taking a prize that by rights belonged to the king
of Johore, would provide suf¬cient grounds for the unilateral occupation
of lands that were in another sovereign™s domain. Or even, most permis-
sive of all, the natural right of self-preservation might justify people in
crowded countries, whose lands were insuf¬cient for their population,
re-locating to less densely populated parts of the world, where they could
on their own initiative acquire ownership rights over territories under
another ruler™s sovereign jurisdiction.

Divisible sovereignty and private property in principle
Let me summarize this analysis of Grotius™s account of the law of nations
by highlighting the fact that it was organized around a fundamental dis-
tinction between public and private wars, and hence between public rights
of sovereignty and private rights of property. In a nutshell, the central
50 51 Ibid., p. 207.
Grotius, De Jure Belli ac Pacis, pp. 206“7.
52 Ibid., pp. 227“8. This may refer more to the transference of public rights in the context
of the gradual usurpation that, as we saw earlier, often attends unequal treaties; but if
it could apply to marks of sovereignty, perhaps it could also relate to private property
rights.
58 Beyond the anarchical society

message of his treatise was that only the holders of marks of sovereignty
were permitted to undertake a public war, and he delineated the partic-
ular conditions under which they should do so. Although his belief in
the divisibility of the sovereign power made this argument less absolutist
than it may at ¬rst sight appear, it was nevertheless quite a conservative
doctrine. It automatically constrained the liberty of anyone who did not
possess at least a portion of the sovereign power, since there were no cir-
cumstances under which they might undertake a public war; at a stroke,
Grotius had ruled out one of the most popular resistance theories of his
day, predicated on the notion that ˜inferior magistrates™ had a right to
undertake public wars on behalf of the natural liberties of the people.
The conservative implications of Grotius™s theory of public authority in
the law of nations were not only moderated by his views on the divisibility
of sovereignty, however, but also by his argument that private individuals
also possessed rights in the law of nations through their natural rights over
their persons and their property. He was careful to ensure that this did
not imply an even more general and popular right of resistance by arguing
that, with the establishment of civil society, natural rights were replaced
by a new institution of private ownership that was subject to the pub-
lic authority of the sovereign power. But at the same time he identi¬ed
certain speci¬c circumstances under which individuals or corporations
could continue to exercise their natural right to acquire property, and
were entitled to defend that right with force if necessary: the key condi-
tions were that lands existed that were still under pre-social communal
ownership, and hence available for appropriation; and, for private war,
that no recourse to public judicial proceedings was available to correct an
injustice. As I have pointed out, it is suspiciously coincidental, to say the
least, that this account of public and private rights in the law of nations,
despite its broadly conservative orientation, provided justi¬cations for the
Dutch ˜Revolt™ as a public war against the usurpations of Philip II and
as a private war with the Portuguese and Spanish in the East and West
Indies. I have also speculated that this fact may go some way towards
explaining the immediate popularity of De Jure Belli ac Pacis, particularly
among those governments which were anxious to validate Dutch involve-
ment in the war against the Habsburg powers, but were loath to present
their own subjects with a rationale for rebellion.
It is hard to see Grotius™s views on divisible sovereignty and individuals™
private rights as an account of the emerging Westphalian system, but that
should not lead us to reject them out of hand as a nostalgic or idealistic
˜domestic analogy™. In fact, they look much more like a remarkably pre-
scient analysis of how Europeans would conduct themselves over the next
three centuries in the world beyond Europe, appropriating vast swathes
The Grotian theory of the law of nations 59

of land and artfully manipulating treaties with indigenous rulers, not even
always noticeably ˜unequal™ ones, so as to give themselves a share in the
latter™s public authority. Moreover, as we will see in chapter 4, later legal
scholars found Grotius™s propositions extremely helpful for legitimizing
those practices, although they added a number of innovations that re-
¬‚ected both their desire to ¬nd some kind of higher moral purpose for
the legal order they were describing, and the increasingly indisputable
fact that what had become normal for relations between Europeans was
distinctly abnormal in relations between Europeans and non-Europeans,
and vice versa. Before looking at those later theories, though, I ¬rst want
to turn to the practices of colonialism and imperialism, to see just how
close a ¬t with Grotian ideas they exhibit.
3 Colonialism, imperialism and
extra-European international politics




It is hardly surprising that Hugo Grotius™s theory of the law of nations
gained its colossal popularity. As I have already noted, his account was
practically tailor-made for the main Protestant powers in the Thirty
Years War, in the sense that it justi¬ed their prosecution of the war against
Spain and the Habsburgs without endorsing more general theories of

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