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he died at Rostock from the effects of shipwreck. It was while he was living at Paris that he published his great book in 1625. Its success was marvellous. Gustavus Adolphus carried a copy about with him in his campaigns. In the Peace of Westphalia its leading principles were recognized and acted upon, and when learning began to revive as the ravages of war were repaired, it was taught as public law in the University of Heidelberg.
Causes of the
How was it possible for a poor scholar, exiled from his native land and neglected in the country of his adoption, to
change the ideas of mankind in a most imporby the great work tant department of human thought? The an
swer to this question involves three sets of considerations. In the first place, the world was weary of the evils that sprang from the prevailing doubt as to the proper basis of international rules, or even as to their existence. The very cause which impelled Grotius to write, impelled men to listen to his voice. He says, “I saw prevailing throughout the Christian world a license in making war of which even barbarous nations would have been ashamed; recourse being had to arms for slight reasons or no reason; and when arms were once taken up, all reverence for divine and human law was thrown away, just as if men were henceforth authorized to commit all crimes without restraint.”i When his book was given to the world, the worst horrors of the Thirty Years War had not taken place. The sack of Magdeburg, the brutal license and utter foulness of both sides, the tortures, the profanities, the devastations which turned the most fertile part of Germany into a desert, were yet to horrify the world. But all this and more followed in a few years; and men who had lived through a whole generation of warfare fitter for Iroquois braves than Christian warriors were disposed to listen when one of the greatest scholars and jurists of the age told them that there was a law which set bounds to the ferocity of soldiers and bade statesmen pause before they went to war on frivolous and insincere pretexts. Yet Grotius might have pleaded in vain for justice and humanity, if he had not been able to appeal to principles universally recognized, and to show that these, when properly interpreted, commanded the precepts which he endeavored to inculcate. He applied the accepted theory of a Law of Nature to international concerns, and made all who believed in that law and its authority believe also that it condemned the practices from which they were recoiling in horror. And lastly, he brought to the performance of this great task all the powers of an acute intellect, and all the treasures of a marvellous erudition. As a scholar he was uncritical, like all the scholars of the seventeenth century; but the range of his learning was enormous. Not only did he pile up precedent upon precedent, and gather instances from all history, sacred and profane; but he digested his vast mass of matter into an intelligible system, and gave it to the world in a form which attracted men of action as well as students and thinkers.
1 De Jure Belli ac Pacis, Prolegomena, $ 28.
We are now in a position to appreciate the meaning and importance of the Grotian version of Nature and her Law. He held that man was a being possessed of a social and rational nature, and consequently version of Nature able to discern what was conformable with that nature. Natural Law was the rule of right reason, indicating that an act by its complying or disagreeing with human nature had in it a moral deformity or moral necessity, and was consequently forbidden, or commanded by God, the Author of Nature. This law was immutable. God himself could not change it, any more than He could make twice two to be other than four.1 Human Law might go beyond it or deal with matters which it did not touch, but could not justly contravene it. Owing to its intrinsic rightness, it ruled the intercourse of nations as well as individuals; but for the guidance of states in their relations with each other, there was, in addition to Natural Law, a Voluntary Law, based upon the consent of all or most nations. This part of the international code could vary from time to time; but the other portion was not subject to change, since it was founded upon human nature itself.2
Law of Nature criticised.
When we are dealing with speculations such as these, we never know whether we are considering ethical theory or The theory of a
legal rule. If the Law of Nature be meant for
a collection of opinions as to the proper method of regulating human conduct, well and good. We can criticise it as we could any other theory of what ought to be. But if it be meant as imperative law, we can only say that it is nothing of the kind; for it is not a body of rules actually observed among men, neither is it armed with any sanctions whereby those who obey it not may be coerced and punished. In fact, its supporters themselves had, and have, no consistent point of view whence to regard it. Their thought is mixed. They confuse the real and the ideal. At one moment Natural Law is high, and holy, and plain to be seen by all whose spiritual and mental eyesight is not dimmed by vice or folly. At the next it authorizes slavery, and does not condemn polygamy.3 Translated into perfectly plain language the greater part of the arguments of those who believe in Nature and her Law would come to this: “We, and sensible people generally, approve of certain proceedings as right, and therefore they are commanded by the law of civilized mankind, and all are bound to adopt them.” Bluntly stated in this fashion, the theory would command few supporters. It is only when it is dressed in high-sounding phrases, such as “eternal and immutable justice,” and “principles im
2 Ibid., I., I.,
1 De Jure Belli ac Pacis, I., I., X.
8 Ibid., II., V.
“ planted by the Creator in the heart of man,” that it becomes attractive. Natural Law, as described by Grotius, may be the standard at which International Law should aim, but it certainly is not International Law. Indeed, the boasted agreement of all men with regard to it never existed, even among philosophers. Grotius held that it was based upon man's social instincts and capacity for discovering and acting upon general principles. Hobbes argued that by nature man was an anti-social animal, who fought, and bit, and devoured his fellows. Grotius declared that God Himself could not alter Natural Law. Pufendorf based Natural Law upon the commands of God. The theory will not bear analysis. If Natural Law is but another name for the sense of right which grows as man progresses, and sets before him through the ages an ideal of life and conduct ever increasing in nobility, let us place it where it properly belongs, in the Science of Ethics; but let us not attempt to thrust it into Jurisprudence, and confuse our minds by speculating upon it as if it were a branch of law. Doubtless, men do often observe rules which they ought to observe; but, nevertheless, the arguments which convince us that a rule is right are quite distinct from the researches which show us that it is part of human law, and the classifications which determine its proper place among other rules of a similar kind.
The theory of a State of Nature was generally held along with the theory of a Law of Nature. It was believed that there had once existed on the earth a time when organized
1 Elements of Law, Ch. XIV. Law of Nature and Nations, Bk. II., Ch. iii., $ 20.
The connection between the theory of a State of Nature and the theory of a Law of Nature.
political societies were not yet formed, and each individual
was at liberty to do what was right in his own eyes, unrestrained by human law. In this condition men obeyed a few just and simple
rules discovered by their own unassisted reason. These rules were called Natural Law, because they were implanted by Nature in the breast of each individual, and did not depend for their obligation on the sanctions of any external authority. The details of the picture varied according to the taste of the writers. No two descriptions of the State or Law of Nature were exactly alike; but every one agreed in asserting that it was impossible to doubt their existence. From various indications it seems clear that Grotius shared the common belief of his day as to the condition of the human race in its infancy; but he certainly did not put it prominently forward in his account of Natural Law, or base upon it an argument for the applicability of that law to matters international. This was done by his successors; and if we accept their premises, it is difficult to reject their conclusion. They argued that since man, when he had no government over him to set him laws, found rules for his conduct in the dictates of Nature, independent states, being permanently in the position of having no common superior, were permanently bound by Natural Law. The whole theory is false and unhistorical. There never was a time when each man lived his own individual life, without connection with his fellows, and without feeling the yoke of any external authority. The more we are able to discover about the facts of primitive society, the more clear does it become that primeval man was subject to numerous and galling restrictions in every department of life. Custom and superstition environed him like an atmosphere. He could not escape from their pressure, and he had no wish to do so. The picture of the primitive savage as a being absolutely free to follow his own impulses and determine his own lot is historically false ; just as the picture of him as an individual endowed with lofty senti