NEW



      - The teaching of Hugo Gratius

       

      Tyumen State University
                                   Faculty of History
                           International Relations Department
      
      
                                       Term paper
      
                    The teaching of Hugo Gratius of war and peace.
      
      
      
                                                             Done by Denis Brovka,
                                                              Student of group 984
                                                  Checked by Christopher Goldsmith
      
                                       Tyumen 2000
      Contents.
      
      Introduction     3
      Chapter I   4
      Chapter II  7
      Chapter III 12
      Conclusion  15
      Bibliography     16
      
      
      
      Introduction
      
      
         Hugo Gratius, a scientist and a lawyer from Holland, lived from  1583  to
      1645. In his famous treatise The Three  Books  on  the  Right  of  War  and
      Peace, published in 1625, he depicted the struggle  of  the  Dutch  capital
      for freedom at the sea. He is considered to be the founder of the  bourgeois
      studies of the international law and is one of the  representatives  of  the
      big bourgeoisie as a scholar of law at an early  stage  of  its  development
      during the dissolution of feudalism in Western Europe and  the  first  large
      revolt of bourgeoisie.
         This book by Gratius is more or less a systematical report of  the  basic
      theories of  international  law,  which  were  common  for  that  period  of
      evolution from feudalism to capitalism. It was for a long time  one  of  the
      most important books for diplomats.
         According to his beliefs, Hugo was a  representative  of  the  period  of
      transformation from feudalist to bourgeois state. His  ideas  received  wide
      spread and founded the basement of further development of the  international
      law, because they expressed real conditions  of  development  and  political
      demands of the newly-forming class  of  bourgeoisie  to  the  ruling  feudal
      party. I must specially note  the  progressive  character  of  some  of  the
      Gratiuss ideas in the sphere of the international law  that  had  a  strong
      influence  to  modern  international  relations.  Hugo  Gratius,   being   a
      bourgeoisie theorist on its early stages,  denied  the  opinion  that  force
      makes all the decisions in the international relations. He thought that  law
      and justice should be number one in international relations
         But we must  not  forget  that  the  progressiveness  of  his  ideas  was
      inconsistent and limited by the  narrow  frameworks  of  the  bourgeois  law
      views. It is necessary to note that modern  bourgeois  ideologists  renounce
      the principles  promoted  by  the  ancestors  in  17    18  centuries  when
      bourgeoisie was fighting against feudalism.
      
         Chapter I
      
      
         Hugo Gratius was on of the representatives of the leading  (in  17    18
      centuries) school of common law and treaty  theory  of  state  origins.  The
      school expressed the basic demands  of  bourgeoisie  in  its  struggle  with
      feudalism; its theoretical basement was outlook, turned out as a  result  of
      the revolution in natural history, reformation, and a bundle of ideas,  left
      from humanism in 15 16 centuries.
         It must be noted here that although the school had a  common  theoretical
      base it was not homogeneous. It had lots of trends, which differed from  one
      another by phases of bourgeoisie development, stages of  her  struggle  with
      feudalism, quantity of different classs representatives  in  a  state,  and
      differences in bourgeoisie itself, because different  groups  had  different
      opinions on implementing their demands. These differences can be  seen  when
      answering the questions on practical implementation of the ideas  of  common
      law, ex. Who is the bearer of sovereignty: people or monarch, which form  of
      government is the best for human nature, etc.
         The problem of the state origins  a  theoretical  question    had  also
      different answers. They all agreed that before state there was a  so  called
      natural condition. But what was this natural condition was  a  point  of
      debates. For one of the theorists it was a realm of unlimited freedom,  wild
      anarchy, leading to war of all  against  all  (Hobbes);  for  others    a
      peaceful  idealistic  state  of  freedom   and   innocence,   Golden   Age
      (Rousseau); others thought it was unlimited personal freedom (Loch).
         For many preachers of this theory natural condition was a philosophical
      dogma or, as Golbach said, fiction. But this fiction helped  ideologists  of
      bourgeoisie to criticize pre-capitalistic social and  political  regime  and
      to prophecy the victory of bourgeoisie. In this society - wrote Marx   an
      individual is free from natural bonds, etc.,  that  in  the  past  made  him
      belong to a certain limited human community.
         Theorists of natural law consider state as a result of a juridical act  
      Treaty of the society, of peoples free will.
         The idea of natural law and treaty state origins can be  found  in  Greek
      and Roman philosophy and works, and in the works of  feudalism  scholars  in
      middle ages. But in 17  18 centuries  these  ideas  became  more  developed
      with some peculiar features, because they lose  theological  context  common
      for medieval scholars, and nave naturalism of ancient  ones,  because  some
      of them considered animals as subjects of law. But the main thing is that  a
      theory of international law of the 17  18 centuries  had  different  class
      essence. It expressed strong demands of bourgeoisie, struggling hard for  on
      its way to power.
         The views on the contents of the Treaty were also different. Hobbes calls
      a treaty via people an  act  by  which  all  population  loses  all  natural
      freedom and rights in monarchs favour and permit  him  an  unlimited  power
      upon them.  Loch thought that an individual  who  enters  this  society  via
      treaty loses his rights only partly (right for self-help, self-defense  when
      something is threatening his natural rights), in favour of the  other  part:
      private property and freedom. Golbach defined the Treaty of the  society  as
      a bundle of conditions necessary for organizing and  saving  society.  Denny
      Didreau thought of the Treaty of the society a bit differently.  People,  
      he wrote,  quickly understood that if they continued using  their  freedom,
      their power, their independence then the situation of every  single  person
      would be even more  miserable,  than  that  if  he  lived  separately;  they
      realized  that  every  person  has  to  sacrifice  a  part  of  his  natural
      independence and to submit to will, that would be  the  will  of  the  whole
      society and would be, so to say, common center and a  point  of  unification
      of all their wills and powers. That is the origin of rulers.
         There is no need to say about theoretical unsoundness of this concept  of
      the  school  of  natural  law.  Even  in  the  18  century  some   bourgeois
      philosophers found the antihistorical essence of these views.  For  example,
      Jum says that natural condition is a  fiction  of  the  philosophers.  State
      emerges not as a result of a treaty but historically. Some  also  said  that
      people could not invent a term state, not knowing the practice. The  first
      Russian law  professor  Semen  Jefimovitch  Desnitskiy  abruptly  criticized
      natural law and mostly Pouffendorf. The works of Pouffendorf  he said  
      was unnecessary, because writing of  states  of  humankind  that  had  never
      existed, is a very unworthy deed.
      
      Chapter II
      
         It is important to show which natural conditions were the soil  for  such
      an illusion of natural state and treaty state origins, and to show the  role
      and importance of this idea in the class struggle of that time.
         Marx said that the individual who enters the society union via treaty, as
      seen by theorists of the school of natural law, is  a  result  of  descended
      feudal society forms and developed in the 16-century new productive  powers.
      A great  mistake  of  natural  law  theorists  was  that  in  their  opinion
      individual has not developed historically, but  set  up  by  nature  itself.
      Features common for bourgeoisie were proclaimed as common for mankind.
         But treaty of the society was regarded by many adepts of natural law  not
      as a historical fact but as a logic ground, hypothesis  for  explaining  the
      difference between state and  natural  condition,  i.e.  between  state  and
      anarchy for explaining  one  or  the  other  form  of  state,  ex.  monarchy
      (Gratius), democratic republic (Rousseau). It must be added  that  in  those
      historical  conditions  the  theory  of  the  treaty  of  the  society   had
      progressive meaning  for  struggle  with  feudal  theories,  ex.  theocratic
      concept of state origins and patrimonial theory, which viewed the  state  as
      property of the monarch.
         A statement about the dualism of law is common for the treaty theory.  It
      differentiates  the  natural[1]  and  positive  law,  i.e.  given   by   the
      legislation of a state[2]. Natural  law  is  prior  to  society  and  state;
      positive law  to creating a state.
         This dualism in notions of law is also depraved feature in the theory  of
      natural law, because the metaphysical way of thinking, common for  bourgeois
      ideologists, was not able to explain the unsteadiness  and  variety  in  the
      law.
         For the ideologists of bourgeoisie it is common to consider law and state
      as an expression of the peoples will. It is of course wrong, from or  point
      of view. But in those historical conditions of  struggle  against  feudalism
      and absolute monarchy, this illusion  had  certainly  a  progressive  sense,
      because with the help of this idea bourgeoisie was  achieving  abolition  of
      the system of privileges and setting up a  representative  system  in  state
      system.
         Hugo Gratius is  one  of  the  earliest  bourgeoisie  ideologists  and  a
      representative of school of natural law. His views were formed at  the  time
      when the process of formation of bourgeois  state  in  Netherlands  had  not
      finished yet, and the British one was only starting. It must be  noted  that
      the struggle of the Dutch against Spanish  king  Phillip  II  made  a  great
      influence on Gratius. The problems of international  law,  examined  by  him
      were set up  by  the  bloody  30-years  war,  competition  between  Holland,
      England and Spain and their  fighting for the leadership at the sea.
      
         It must be noted that in the system of Gratiuss views there is  no  such
      political sharpness  as  is  common  for  Rousseau  or  even  for  Loch.  He
      expresses the interests of such groups of bourgeoisie, which  were  able  to
      make a deal with feudalism. He is a monarchist according to his beliefs  and
      opposes the idea of peoples sovereignty. He  also  doesnt  want  to  throw
      away religious world outlook.
         Hugo Gratius differentiates law as natural and voluntarium.  Natural  law
      according to him is a deed,  which  is  considered  morally  disgraceful  or
      morally necessary, according to whether it contradicts the  nature  or  not;
      thats why this deed is  forbidden  or  allowed  by  the  God  himself,  the
      creator of the nature. Natural law is so stable that  cannot  by  changed
      by God himself. He also spreads the natural law  to  everything,  which  is
      dependable from the humans will, and also  consequences,  which  flow  from
      the acts of the humans will. Natural law sometimes  depends  on  the  time.
      For example, the right to private property is ser up  by  the  humans  will
      and thats why natural law prohibits the theft of it. That is, the theft  is
      prohibited by the natural law.
         The common possession was natural until private property was established.
      The realization of your right with the  help  of  force  was  common  before
      setting up civil laws.
         The law, set up by will, according to Hugo Gratius can be human or  godly
      law. In its turn, human law can  be  either  internal  law  of  a  state  or
      humans law in a narrower and at the same  time  broader  meaning.  Internal
      law of the state flows from the civil power, ruling in a state. Humans  law
      in a narrower meaning does not flow  from  it.  As  for  humans  law  in  a
      broader meaning, it is the law of peoples (jus gentium), which has  a  power
      from the will of all living peoples or most of them. Speaking of a  law  set
      up by God Gratius asserts that it flows right from the Gods will.
         Of course, Hugo Gratius according to  his  metaphysical  outlook  asserts
      that no society is possible without a law. The law is not a result  but  the
      prior event, flowing from the human nature. From the essence of  law,  which
      is a desire to communication, flows a range of  necessities:  not  to  touch
      not your own belongings, keep a promise,  pay  for  inflicted  damage,  etc.
      This antihistorical outlook on the essence of  law  and  the  appearance  of
      some of it aspects was  common  for  those  historical  conditions  and  was
      necessary for bourgeoisie as an ideological weapon  in  a  struggle  against
      the feudal system for bourgeois law order.
         Hugo Gratius defines the law into features and separates it into the  law
      of domination and the equality. In his book, mentioned above, he  says  that
      a law is a thing that doesnt contradict justice. What contradicts  justice
      is against the nature of creatures  who  possess  mind  and  communication.
      Justice can be dualistic.
           a) Justice is the  relation  between  the  equal  (brothers,  friends,
              citizens and allies, etc.). This is a law of equality.
           b) Justice is the relation between the dominant and submissive (father
              and children, master and slave, God and people, etc.).  This  is  a
              law of dominance.
         From all this he excludes the law concerning individuals. It is  a  moral
      quality common for  personality,  according  to  which  it  is  possible  to
      possess something or to act in one way or another. This law is  adjacent  to
      personality, although it is often connected with things. Law  ability  is  a
      law itself according to Hugo. This law is a  power  upon  oneself  (freedom)
      and upon other people (fathers or masters powers), property (complete  and
      incomplete), the right to demand, etc. Law ability  is  divided  into  lower
      (personal use) and higher (adjacent to all humankind for the good).
         So Hugo Gratius appears to have  a  division  of  law  into  natural  and
      voluntarium (positive), which is common systematic mistake for  natural  law
      concept. It is also common  for  him  to  have  metaphysical  views  on  the
      justice in relation between brothers, people. He sets in the  same  row  the
      father, master, king and God, calling them all dominants.  That  means  that
      Gratius does not differentiate economic, ideological  and  state  relations.
      But  the  essence  of  law,  given   by   Hugo   Gratius,   is   objectively
      propagandizing the eternity of slavery. It is common for Hugo Gratius to  be
      a supporter of the monarchy and even more  than  that:  in  his  views,  the
      medieval jurisprudence remains.
         Although a state is according to definition an act of  creative  activity
      and the  best  form  of  peoples  unification,  based  on  a  treaty,  i.e.
      supposing the sovereignty of people, Gratius denies  the  fact  that  people
      possess sovereignty. He does not agree that peoples  will  is  higher  than
      the will of a monarch. Considering that people were  once  sovereign  he  is
      sure they passed their sovereignty freely to the people they elected. So  he
      stands for medieval patrimonial theory, according  to  which  the  juridical
      nature of the nature of the states power  is  not  different  from  private
      property right.
         Thats why a crime of monarch should not lead to depriving of power, just
      as a crime of a simple person in most cases does not lead to  depriving  him
      of his property. State territory and state possessions is  the  property  of
      the monarch.
         Those reactionary views of Hugo Gratius show that he was a representative
      of such a group of  bourgeoisie  that  did  not  make  a  deal  with  feudal
      elements, which mostly determined the results of the Dutch Revolution.
      
      
      Chapter III
      
         Treatise The Three books on the right of war and peace is dedicated to,
      as seen from the name, problems of  international  public  law.  In  it  the
      author looks at the  problem  of  justice,  sources  of  international  law,
      possibility of just war and types of just wars, of influence of the  war  to
      juridical relations, which existed before, of rules of waging war, etc.
         Gratius writes that his treatise is written in the  defense  of  justice.
      This view on justice is as metaphysical  as  view  on  state  and  law.  The
      origins of this metaphysical view are shown in the work F.  Engels  To  the
      living problem. Looking over the emerging of state and law,  Engels  writes
      that at a certain stage of class  society  development  complex  legislation
      and a class of professional  lawyers  emerges.  Together  with  lawyers  the
      study of law emerges, which in its  later  development  compares  juridical
      systems of different peoples and different epochs,  not  as  reflections  of
      economic relations but as self-explaining  systems.  This  comparison  finds
      similarities. The lawyers call everything more or less similar in  different
      systems natural law. The scale that measures what is related to natural  law
      is operating through the most abstract expression  of  the  law    justice.
      Since then the main goal of development of the law, in the lawyers  opinion,
      is to draw human life conditions nearer to justice, or eternal justice.  But
      this justice  always  expresses  only  ideological  expression  of  existing
      economic relations from their conservative or revolutionary point  of  view.
      The justice of Greeks and Romans was slavery, the justice of bourgeoisie  of
      1789 demanded to overthrow feudalism, because it  is  unjust.  So  views  on
      eternal justice vary not only in different places or times,  but  they  also
      vary from person to person.
         So, the justice which Gratius speaks about is bourgeois justice. Due  to
      the will of the Creator of nature, a human alone is  helpless  and  requires
      lots of things for a good living. That is why natural law includes  benefit.
      It was a reason of emerging of a state law. Both  the  community  and  power
      emerged because of some benefit. As for international law or the law of  the
      peoples, it appeared according to custom and agreement of peoples in  favour
      of all the communities. The other source of it is nature and holy laws.
         According to Gratius, just as a criminal of  internal  state  legislation
      ruins his future well-being and the one of his descendants, the criminal  of
      the natural law ruins the basement of his future peace.  Peoples  who  break
      this rule, break the walls  erected  for  their  safety  forever.  There  is
      nothing solid beyond the law.
         The main problem in The Three books on the Right of War  and  Peace  is
      the problem of the relation between the war and law, in other words,  can  a
      war be fair and thats why legal. Gratius argues with  the  point  that  war
      and law cant be compatible and that voice  of  law  is  overridden  by  the
      sound of weapon. He dedicates a significant part of his work  to  refutation
      of this, as he says, mistake. During a war only civil  laws  keep  silence,
      because they are created for peace, but  not  the  natural  ones,  they  are
      eternal. He greatly believes in the existence of some  common  law  in  the
      international relations,  which  works  both  for  war  and  peace.  It  is
      necessary to start a war to keep justice, and to  continue  a  started  war,
      keeping in the limits of law.
         According to Gratius, war can be waged only against those who  cannot  be
      made doing something in a legal order. Legal forms are common for those  who
      consider themselves weaker. For those who  consider  themselves  equal  wars
      must be waged. During a war one must keep to the act of peace and one  must
      start a war only intending to finish it as fast as possible.
         In the treatise, the war in a broad  sense  is  defined  as  a  state  of
      struggle with the force, as solving  of  controversial  questions  with  the
      implementation of force. This definition of war spreads  to  many  types  of
      wars. Depending on the sides (subjects), taking part in  a  war,  the  force
      can be private (self-defense by a person  not  possessing  a  state  power),
      public (state) or combined (on one hand  public, one the other -  private).
      In a narrower sense, war is an armed conflict between states. The  right  of
      war is justice, but in a negative meaning: thing that  does  not  contradict
      to justice. The first inducements of nature do not contradict it,  even  on
      the contrary. Thats the way in which he tries to  prove  it.  Saving  life
      and limbs, saving belongings, useful  for  it    correspond  to  the  first
      inducements of nature. In other words, care of oneself does  not  contradict
      to community life, until they break somebody elses right.  The  force  that
      doesnt break anothers right  is  legal.  That  means  that,  according  to
      Gratius:
           1) The sources of wars are  the  passions  of  human  body  (desire  to
              possess valuables)
           2) Just war  is  possible,  which  deserves  approval  of  natural  and
              international law.
         Gratius defines two stages of just public war:
        1) Solemn just war
        2) Simply just war
         For the war to have solemn character, two conditions  are  required:  it
      must be waged by the will of highest  rulers  of  the  states,  and  certain
      customs must be kept Both of those are required, because  any  of  them  is
      not enough without another.
         Public war is  not  solemn;  it  can  be  free  from  those  customs  and
      ceremonies; it can be waged  against  anyone  by  anyones  authority.  That
      means that any person has a right to wage his own war. But as war may  cause
      danger for the whole state most legislatures forbid it.  War  can  be  waged
      only by the highest authority.
      
      
      
      Conclusion
      
      
         Neither Gratius,  nor  any  other  bourgeois  scholars  of  international
      relations and international law managed to find out the reasons of  war  and
      the principle difference between just and unjust  war.  One  of  my  sources
      says that only Marxist theory managed it. According  to  Marxist  point  of
      view just war is not a predatory one but a war of liberation,  which  has  a
      goal of protecting the people of external  attack  or  of  freeing  colonies
      from the oppression of imperialism, etc. And unjust  war  is  a  predatory
      war, which has a goal to conquer and slave the other states people.  But  I
      must say that these views are out-of-date of course.
      
      
      
      Bibliography
      
      
      
      1 Huizinga J The waiting of the Middle Ages. New York: Doubleday &
      
      Company Inc 1956
      
      2 Parry J H The Establishment of the Europian Hegemony: 1415-1715
      
      New York: Harper & Row Publishers 1966
      
      
      3         1948
      -----------------------
      [1] This term has dual meaning. This is either inborn law, not dependable
      from state or the one that is common for different
      time??????????????????????
      ????????????????????????????????????????????????????????????????????????????
      ??????????????????????????????s or for different states at the same time.
      [2] After having come to power and having created its own class structure,
      bourgeoisie rejected this separation of law into natural (ideal of law) and
      positive (the real practice). It admitted only positive law. And thats why
      bourgeois scientists lose interest in natural law after that. In 19-century
      juridical positivism emerges and attracts wide spreading, only engaging
      positive law.