Hugo Grotius

While Bodin propounded the concept of national sovereignty, Hugo Grotius (1583–1643), a Dutch jurist, laid the foundation of international or external sovereignty. He is described as the father of international law. As mentioned previously, external sovereignty invokes international law to support the sovereign equality of states and the right of the State to exist independently in the international arena. This principle can be traced to Grotius and his concept of external sovereignty. Grotius’ work, The Law of War and Peace, is considered to be the first authoritative commentary on international jurisprudence and international relations. To appreciate Grotius’ formulation of external sovereignty and international law, we should try to understand his concept of natural law, the law of nations and sovereignty of states.

He made natural law the foundation of his international law. It may be mentioned that before Grotius, natural law or the Law of Nature had been understood in terms of religious authority as the laws of God. However, he disentangled it from its religious connotations and put it in terms of ‘reason’. To designate natural law, he employed the term jus naturale rather than lex naturalis as done by other theorists. Those who employed the term lex naturalis viewed natural law as the command of God while Grotius treated it as an ‘expression of reason’ and used the term jus naturale. He defined the law of nature as ‘a dictate of right reason, which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God.’¹² His use of the word ‘God’ did not imply any religious sanction. It was only to show that the dictate of ‘right reason’ or natural law would enjoin exactly the same if there were no God. He explains thus, ‘just as even God, then, cannot cause that two times two should not make four, so He cannot cause that which is intrinsically evil be not evil.’ He thus treated natural law as rational, immutable, eternal and universal.

For Grotius, natural law as he presented it provided a new framework to regulate relations between independent states which had fallen into disorder and chaos in seventeenth-century Europe. This disorder was increased by the post-Reformation bitterness of religious hatred. During this period, western European nations were also engaged in economic expansion, colonization and commercial rivalry. Grotius’ contribution—a comprehensive and systematic treatment of the rules governing mutual relations among states—should be understood in this context. We may understand his contributions, then, in terms of the political independence of sovereign states and the regulation of their relations by international law.

Grotius understood sovereignty ‘as a power not subject to the legal control of another.’ He differentiated between the common subject of sovereignty and the special subject of sovereignty. While the political body or the state is the common subject of sovereignty, one person or more (or the government) as per the constitutional law of each State is the special subject of sovereignty. Grotius identified sovereignty with supreme political power in the state, the exercise of which was not subject to the control of any person. He also conceded the possibility of limited sovereignty so much so that the people could wholly divest itself of its sovereign power. He also likened sovereignty to being possessed (like a piece of land). However, it is important to see his contribution limiting the sovereign in terms of international relations, natural law and the law of nations.

Having seen his formulation of natural law as the ‘dictate of right reason and sovereignty as legal supremacy without control’, we may now turn to understand his concept of the ‘law of nations’. While natural law, being dictate of right reason, is the desirable yardstick by which nations should actually be governed, the law of nations is a product of those practices, which civilized nations observed in their dealings with one another. Their origin is in the free will of man and is an expression of this will and not of reason. The content of the law of nations has been accepted as obligatory by the consent of all or many nations and what is included in it is proved by constant usage and testimony. This is in contrast to an immutable, universal, eternal and above all, rational natural law. Thus, principles of law of nations embody the deliberate choice of men and are result of general agreement and there is nothing immutable about them.

With these formulations, Grotius sought to build a system of international law and relations among nations on two foundations. First, he stressed that nations were subject to natural law in the same manner as citizens. Thus, the foundations and principles governing laws within a nation and international law are the same and trace from themselves from natural law. Moreover, the society of nations is formed on the same fundamental moral principles, which guide the behaviour of men in society. As individual citizens subject themselves to the sovereignty of the State and to its laws because the State has its origin in free will and reason, every State should also accept the supremacy of an international society based on international law and be voluntarily subject to it. Second, he recognized the law of nations, which may be called the ‘volition law’ or ‘voluntary law’, based on their free consent expressed in treaties and conventions or usage and customs. However, juxtaposing natural law and the law of nations as the basis of the regulation of relations between nations is somewhat confusing. For him, though, the law of nations should not depart from natural law.

We may discuss Grotius’ treatment of war to elucidate his formulation of the relationship between sovereignty, law of nations and natural law. The sovereignty of a state, being its independence from legal control, implies that it is just and lawful for a state to go to war to protect itself. This, being generally accepted by nations, can be deemed as the ‘law of nations’ in Grotius’ sense. Grotius sought to justify war on the basis of natural law also. He maintained that states had certain rights based on their purpose, which they must protect. One of them was the promotion of the rational well-being of the people living within their territories. Whenever this is threatened by the action of another state, it becomes lawful and just for a state to wage war against the aggressor. To quote him, ‘the end and aim of war being the preservation of life and limb, and keeping and acquiring of things useful to life, war is in perfect accord with those first principles of nature.’ For Grotius, a war was justified and in accordance with natural law when undertaken in self-defence and consistent with social purpose. Grotius maintained that war was lawful when it was waged under the authority of the person who held the sovereign power. We can see from Grotius’ formulation that sovereignty manifests itself in relation to other states and this is related to the law of nations and natural law on which international law is based.