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circumcision to do with the laws of war and peace?™2 I am certainly not
going to attempt to cover all the details of Grotius™s work, although it
ought to be noted that sometimes arguments with a wider signi¬cance
do spring from unlikely parts of the text. Instead, I am going to focus on
two main issues that he discussed at great length in his major works on

2 Voltaire, Political Writings, trans. David Williams (Cambridge University Press, 1994),
pp. 87 and 89.
42 Beyond the anarchical society

the law of nations, and to which he obviously attached cardinal impor-
tance: the sources and operation of public authority, and the acquisition
and defence of private property. This distinction between public rights of
sovereignty and private rights of ownership is one of the main organizing
devices in Grotius™s account of the law of nations, and it is crucial to
understanding how he dealt with each topic in its own way and how he
viewed the relationship between the two. In addition, I should admit that
I have not just chosen these two themes because they are so prominent
in Grotius™s work, but also because I think that a closer study of them
is essential to my wider project of developing a new picture of order in
modern world politics.


Grotius on public authority in the law of nations
Like most of his contemporaries, Grotius conceived of public authority
in terms of a number of rights to do speci¬c things: to declare war, con-
duct foreign relations, raise taxes, make laws and so on.3 Unlike many
of his contemporaries, however, Grotius™s main concern was not to spec-
ify which particular institution, or group of institutions, should possess
these prerogatives in order to create the best possible political commu-
nity. Grotius undoubtedly had views on this issue, but he was not par-
ticularly explicit about them. It is striking, for example, that in his major
work, De Jure Belli ac Pacis, Grotius did not bother to give a general ar-
gument for any particular kind of political system. His interests lay in
other, more narrowly legalistic, questions about public authority, since,
as he even-handedly remarked, ˜in matters of government there is noth-
ing which from every point of view is quite free from disadvantages; and
a legal provision is to be judged not by what this or that man considers
best, but by what accords with the will of him with whom the provision
originated™.4
That apparently rather bland comment is interesting because it reveals
one of the most characteristic and important features of Grotius™s analysis
of political authority. He was not engaged in a philosophical enquiry into
the best form of government, so much as an enquiry into existing legal and
constitutional arrangements, centred on the attempt to discover exactly
what provisions had been made, by whom and with what intentions;
his project was not to determine what prerogatives people should hold,

3 For a good discussion about the ¬‚exibility of early modern thinking about sovereignty in
general, see Julian Franklin, ˜Sovereignty and the Mixed Constitution: Jean Bodin and
his Critics™, in J.H. Burns (ed.), The Cambridge History of Political Thought, 1450“1700
(Cambridge University Press, 1991), pp. 298“328.
4 Hugo Grotius, De Jure Belli ac Pacis Libri Tres, trans. Francis Kelsey et al. (Oxford:
Clarendon Press, 1925), p. 124.
The Grotian theory of the law of nations 43

but rather to identify those which in fact they did hold.5 Of course, the
latter enquiry had important political implications, since Grotius believed
that it was proper to do what was lawful; in his scheme of things, the
mundane notion of respect for the law usually trumped more grandiose
and speculative attempts to demonstrate the inherent rightness of, say,
princely absolutism or popular sovereignty. Assuming that legal rights
had been established through correct procedures, Grotius understood
them to de¬ne the parameters within which political relationships were
to be conducted, setting the boundaries of autonomy, obligation and
justi¬able violence. Grotius™s work, with all its apparent contradictions
and evasions, is only intelligible if we begin from this understanding of
the very speci¬c character of the questions with which he was concerned.
In applying this approach, Grotius was certainly aware of the theory
of sovereignty that Jean Bodin had recently advanced. Indeed, he began
his analysis of public authority in De Jure Belli ac Pacis with a general
de¬nition of the concept that looks very Bodinian: ˜That power is called
sovereign (summa) whose actions are not subject to the legal control of
another, so that they cannot be rendered void by the operation of another
human will.™6 He also appears to have appreciated the force of Bodin™s
observations about how the sovereign power should be organized within
a political community. Bodin had pointed out that his de¬nition of the
concept logically required a strong distinction to be made between the
sovereign and the subject. If to be sovereign means to be free from sub-
jection to any other human authority it must be impossible, he argued,
to be both a sovereign and a subject simultaneously. It would therefore
be a mistake to treat any prerogative as a true mark of ˜sovereignty™ if it
could be shared between a ruler and his or her subjects at the same time;
the only authentic mark of sovereignty, he concluded, was the preroga-
tive to make law through an act of independent will, which must by its
very nature be vested in a single person or a single institution within a
political community.7 Grotius seemed to concur with this reading of the
logical consequences of treating sovereignty as independence from other
5 The inherent conservatism of this approach provoked Jean-Jacques Rousseau™s famous
jibe that Grotius could have used ˜a more consistent method, but none more favourable
to tyrants™: Rousseau, The Social Contract and other Later Political Writings, trans. Victor
Gourevitch (Cambridge University Press, 1997), p. 42. Note, however, that on the whole
Grotius would only endorse existing arrangements that had been justly arrived at (an
important exception will be discussed below), and that the method of deriving the law
from facts only supports tyrants if they are truly empowered by the status quo; if existing
arrangements are not, in fact, favourable to tyrants, then neither is Grotius™s method, as
we will see in moment.
6 Ibid., p. 102; compare with Jean Bodin, On Sovereignty: Four Chapters from the Six Books
of the Commonwealth, ed. and trans. Julian Franklin (Cambridge University Press, 1992),
p. 11.
7 Bodin, On Sovereignty, p. 49.
44 Beyond the anarchical society

judicial controls and wills, agreeing that ˜sovereignty (summum imperium)
is a unity, in itself indivisible™.8
One always has to be careful about these apparently clear-cut state-
ments with which Grotius often began his discussion of complex legal
questions. On the question of summum imperium, while apparently en-
dorsing Bodin™s conception of sovereignty as indivisible, Grotius pro-
ceeded to offer a series of exceptions to the general de¬nition that, to
all intents and purposes, nulli¬ed it. Having just said that sovereignty
is indivisible, he immediately added a crucial ˜but™: when jurists discuss
sovereignty ˜a division is sometimes made into parts designated as poten-
tial and subjective™, and he conceded that that may well be an accurate
terminology because ˜it may happen that a people, when choosing a king,
may reserve to itself certain powers but may confer others on the king
absolutely ( pleno jure)™.9 This is typical of Grotius: he asserts that in prin-
ciple sovereignty is indivisible, but then shows that in both theory and
practice it is often divided, and goes on to provide a whole series of illus-
trations of such summitatis divisio, without for one moment decrying them
as dangerous or illogical absurdities (as Bodin unquestionably would have
done).
In the course of this discussion Grotius certainly did not rule out the
possibility that an individual monarch might be an absolute sovereign,
holding all of the marks of sovereignty without any sharing or division
involved. Indeed, his best-known example of how a people might confer
powers on a king is a notorious endorsement of absolutist rule: since in-
dividual men may enslave themselves, he reasoned, ˜would it not be per-
mitted to a people having legal competence to submit itself to some one
person, or to several persons, in such a way as plainly to transfer to him
the legal right to govern, retaining no vestige of that right for itself ?™10
And, as if that claim by itself was not enough to attract the angry attention
of subsequent generations of political theorists, Grotius underlined the
point by appealing to the now infamous Aristotelian doctrine of natural
slavery: ˜some men are by nature slaves . . . so there are some people so
constituted that they understand better how to be ruled than to rule™.11

8 9 Ibid. 10 Ibid., p. 103.
Grotius, De Jure Belli ac Pacis, p. 123.
11 Ibid., p. 105. It is tempting to assume that he had non-European peoples in mind here.
He may well have done, but if he was thinking about Americans, Asians or Africans
in this context, he had ample opportunities to develop the point more explicitly here
and elsewhere, and did not do so. It is conceivable, although I would be hesitant about
committing myself to the point, that the Aristotelian thesis might have suited European
circumstances. Perhaps he was making a comparison between the freedom-loving Dutch
and the similarly inclined ancient Greeks, in contrast with those European peoples who,
like Aristotle™s Persians, found it easier to bear the yoke of absolutist despotism, such
as the Spanish. In any case, it is also plausible to think, especially given the context
The Grotian theory of the law of nations 45

This is undoubtedly the most spectacular of Grotius™s examples of how
sovereign prerogatives are transferred from one holder to another, and its
celebrity has helped foster the widespread belief that Grotius himself was
committed to an absolutist position. But it is important to bear in mind
that it was just one among several different examples that he gave of how
political authority may be organized; there are, moreover, good reasons
for thinking that it was not the most signi¬cant one in Grotius™s own mind.
For a start, Grotius pointed out that in several instances it was quite
wrong to begin from the assumption that the ruler held sovereignty in
an absolute form: ˜In cases of kingships which have been conferred by
the will of the people the presumption is . . . that it was not the will of
the people to permit the king to alienate the sovereign power [one of the
pre-conditions of absolutist sovereignty]™.12 That shifted the burden of
proof to would-be absolutists, and it was a crucial quali¬cation because
it will be recalled that, in interpreting a legal provision, Grotius attached
overwhelming importance to the will of the person or people who had
originally made it. To amplify the point yet further, Grotius went on to
specify three typical ways in which a people might grant sovereignty less
than absolutely: in some cases, a ruler might hold all the prerogatives of
sovereignty, but with the quali¬cation attached that he or she remained
˜responsible to the people™; sometimes, on the other hand, ˜sovereign
power is held in part by the king, in part by the people or the senate™;
and sometimes ˜in the conferring of authority it has been stated that in a
particular case the king can be resisted™.13 Public authority is organized
differently in each of these instances, and it is in the second, where the
power is held only ˜in part by the king™, that we have a clear-cut case of
divided sovereignty.
That particular example is interesting for the light it sheds on the origi-
nal sources of Grotius™s thinking about public authority and the divisibil-
ity of the sovereign power. In an early work, the Commentarius in Theses XI,
he had used the particular way in which the Dutch people had transferred
their legal rights to justify their war against the Spanish, often labelled
(rather misleadingly from a Grotian perspective) as the Dutch Revolt.14

of the argument, that his main goal in using this argument was to dispute the popular
monarchomachic theory that the general condition of natural liberty endowed all peoples
with a set of rights that they could never lose to a ruler, and which therefore provided a
permanent justi¬cation for resistance against tyranny.
12 13 Ibid., pp. 156 and 158.
Ibid., p. 123.
14 Grotius, ˜Commentarius in Theses XI ™: An Early Treatise on Sovereignty, the Just
War and the Legitimacy of the Dutch Revolt. Borschberg™s introduction and com-
mentary on this text offers an excellent analysis of the development of Grotius™s
thought about sovereignty, upon which I have drawn heavily. See also (in English)
Borschberg, ˜Grocio y el Contracto Social: Un Estudio Preliminario de las In´ ditas e
46 Beyond the anarchical society

Grotius™s approach to justifying this con¬‚ict represented a departure from
what was, at the time, the more common way of thinking about the Dutch
action: a form of early modern resistance theory, known as constitution-
alism or monarchomachism, which relied on two main claims. The ¬rst
was that, before forming political societies, people had originally lived
in a condition of ˜natural liberty™, which endowed them with a series of
inalienable rights that marked the limits beyond which even the most
absolute ruler might not trespass without becoming a tyrant. Fearful,
perhaps, of the radical implications of the natural liberty argument, and
mindful of their constituency in the French nobility, Huguenot resistance
theorists had added a second claim, to the effect that the right to take
up arms in defence of the people™s natural liberties was not vested in
the people themselves, but in an intermediary class of public of¬cials
above the ordinary people, but below the level of the monarch: ˜inferior
magistrates™.15 Many Dutch political theorists made use of this argument
as well, although sometimes, possibly because of the much greater level
of popular support for the revolt against Spain in the Netherlands, pos-
sibly because of the more radical in¬‚uence of Calvinism, they bypassed
the idea of ˜inferior magistrates™ altogether, to argue that ordinary people
had the right to use violence in defence of their natural liberties.16
In the Commentarius, however, Grotius declined to adopt either the
monarchomachic line or its more populist Dutch variant (which he was
undoubtedly too conservative to support). Instead, he used a quite dif-
ferent approach, treating the Dutch as involved in a just public war rather
than an act of resistance per se. The crucial proposition in his argument
was one with which we are now familiar: sovereignty is divisible, such
that ˜it may be possible for some marks [of sovereignty] to reside . . . with
persons or assemblies, while others do not™.17 Here, with his immediate
purpose of justifying the Dutch cause in mind, he illustrated the point
by referring to the right of the States of Holland to raise taxes, a right

Theses LVI ™, Revista de Estudios Pol´ticos, forthcoming, where Borschberg discusses an
±
early unpublished essay that reinforces the anti-Bodinian nature of Grotius™s theory
of sovereignty, as well as the ¬‚exibility of the Grotian theory, which has room for
absolutist rulers without making absolutism a necessary condition of the sovereign
power.
15 For a seminal account, which treats this line of argument as of pivotal importance to the
development of modern political theory in general, see Quentin Skinner, The Foundations
of Modern Political Thought, Volume 2: The Age of Reformation (Cambridge University
Press, 1978).
16 See, for example, E.H. Kossmann and A.F. Mellink (eds.), Texts Concerning the Revolt of
the Netherlands (Cambridge University Press, 1974), p. 152, and Martin van Gelderen,
The Political Thought of the Dutch Revolt, 1555“1590 (Cambridge University Press, 1992),
p. 119. There may also have been good constitutionalist reasons for the relative populism
of Dutch resistance theory.
17 Grotius, Commentarius, p. 227.
The Grotian theory of the law of nations 47

which had never been transferred to Philip II of Spain. The ˜Revolt™ could
therefore be justi¬ed on the grounds that Philip™s representative in the
Netherlands, the duke of Alva, had usurped this prerogative by levying
taxes on his own initiative, and the Dutch States were entitled to defend
their prerogative by waging a just public war against the Spanish.18 If,
in the course of waging this war, the Dutch were to succeed in inducing
Philip to grant them further rights of sovereignty, even leading to their
outright independence (which is what did indeed happen, after Grotius™s
death, in a treaty of 1648), that could be regarded as a legitimate spoil of
a just war.
For fairly obvious reasons, this ingenious defence of the Dutch war
with Spain does not appear in such an explicit form in De Jure Belli ac
Pacis; but its basic components are still there. This is seldom appreci-
ated, because again the attention of most readers has been ¬xated on
Grotius™s blunt rejection of the possibility of legitimate resistance and his
extended critique of monarchomachic theories, which has led many peo-
ple to assume that by the time of writing his later work he had more or
less abandoned the Dutch cause and come around to a more monarchical
way of thinking. Certainly, it is quite correct to say that Grotius offers a
very negative view of resistance in De Jure Belli ac Pacis. He asserts, for
instance, that ˜as a general rule rebellion is not permitted by the law of
nature™, nor, for good measure, is it defensible under Hebraic law, the
Gospel or early Christian practice.19 He then went on systematically to
demolish the central propositions of the monarchomachic position. I have

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