John D. Haskell, Hugo Grotius in the Contemporary Memory of International Law: Secularism, Liberalism, and the Politics of Restatement and Denial

• Citation: Vol. 25 No. 1
• Publication year: 2010

HUGO GROTIUS IN THE CONTEMPORARY MEMORY OF INTERNATIONAL LAW: SECULARISM, LIBERALISM, AND THE POLITICS OF RESTATEMENT AND DENIAL

John D. Haskell*

INTRODUCTION: GROTIUS AS NARRATIVE

Hugo Grotius (1583–1645) frequently occupies the title, “‘father’ of international law.”1 While the origins of professional lineage were a source of professional and personal conflict for jurists in the nineteenth century, scholars today tend to treat Grotius as either a symbolic marker of changing historical thought, or the symbolic figure of a style or school of global governance.2 In the first instance, Grotius is important because he made a methodological leap in one form or another from a theological to a secular frame of jurisprudential

thinking, and in so doing, characterized the dilemmas of governance in familiar

* Fulbright Scholar, 2011-2012, Erik Castrén Institute of International Law and Human Rights,

University of Helsinki; Visiting Assistant Professor of Law, International University College, Turin; Assistant Director, Institute for the Study of Political Economy and Law, International University College, Turin; Visiting Lecturer of Law, University of London, School of Oriental and African Studies, 2011; Visiting Researcher, Institute for Global Law and Policy, Harvard Law School; Co-founder of the Centre for the study of Colonialism, Empire and International Law; Ph.D. Candidate in Law; LL.M., School of Oriental and African Studies, University of London; J.D., Hastings College of the Law, University of California. I am deeply grateful to the generosity, encouragement and thoughts of first and foremost Peter Fitzpatrick, Mark Janis, and David Kennedy, as well as Saki Bailey, Jason Beckett, José María Beneyto, Bill Bowring, Stephen Chan, Matthew Craven, Catriona Drew, Florian Hoffmann, Rob Knox, Boris Mamlyuk, Susan Marks, Ugo Mattei, Scott Newton, Umut Özsu, Reut Paz, Evita Rackow, Ignacio de la Rasilla del Moral, Akbar Rasulov, Joseph Singer, and Mai Taha. I also wish to express my thanks to the Institute for Global Law and Policy, the Institute for the study of Political Economy and Law, and the Centre for the study of Colonialism, Empire and International Law. All the usual caveats concerning errors and omissions apply.

1. Mark W. Janis, Religion and the Literature of International Law: Some Standard Texts, in RELIGION

   AND INTERNATIONAL LAW 121, 121 (Mark W. Janis & Carolyn Evans eds., 1999).

2. See GESINA H.J. VAN DER MOLEN, ALBERICO GENTILI AND THE DEVELOPMENT OF INTERNATIONAL

   LAW 61–62 (2d ed. 1968); see also infra notes 3–4 and accompanying text. In the 1870s, international jurists entered into heated contests over who deserved the right to be claimed the “father” of international law. Id. For instance, a group of jurists, including Asser, Holland, Mancini, and Twiss, drafted a resolution and formed a committee to erect a national monument in honor of Gentili. Pilgrimages were made to Gentili’s hometown, and the Italian government officially requested the United Kingdom for his remains (the grave, however, was unable to be located). VAN DER MOLEN, supra. Other international jurists, such as A.J. Levy, objected, arguing that Grotius should have the honor of having his statue erected first. Id. at 62. An English committee was formed in 1875 to add weight to the argument for honoring Gentili first, with Prince Leopold sitting as the honorary president and Phillimore carrying out the actual presidential duties. Id.

   terms to modernity.3 For other authors, the legacy of Grotius is not directly this shift from ecclesiastic to secular authority, but rather that his efforts are remembered to spark the political aspiration, implied to be at the core of international law itself, towards a more liberal tolerance of difference and a sentiment of restraint towards over-aggrandizing political agendas.4

   
   

   These two contemporary streams of remembrance operate within a dense background of assumptions about the nature and possibilities of the global order, which raise at least three sets of curiosities. First, in light of nuanced scholarship of Grotius’s primary materials in recent decades, what does an emphasis on the actual content of Grotius’s work impart about the character of his times, and through what lens should we organize our understanding (e.g., political, juridical, theological, and so on)? Second, what inspires the almost cyclical (or perhaps more perversely, fetishistic) attraction to Grotius in the fields of international law and politics, and how might this help us better understand both the psychological and structural underpinnings of contemporary practice and the nature and trajectory of the profession in a broader sense? And third, in lieu of any findings, what, if any, possibility does this attraction to Grotius open up for future strategic, or even imaginative engagement? In sum, what stories does the Grotian rhetoric allow us to tell about the international legal order, and do such stories carry any political, if

   not personal, impact? 5

   
   

3. See Hilaire McCoubrey, Natural Law, Religion and the Development of International Law, in RELIGION AND INTERNATIONAL LAW 177, 183–85 (Mark W. Janis & Carolyn Evans eds., 1999) (arguing that the Grotian revolution, albeit an organic development from what had gone before, led to a change to the modes of more contemporary and secular discourse). In the nineteenth century, Grotius was primarily remembered for a theory of human sociability whereby cosmopolitan society stood in for the “state of nature.” See infra note 6 and accompanying text. In the twentieth century, Grotius is often recalled as a narrative device to capture what is seen as the historical shift from the insulated hierarchical authority of the Church and Emperor to a rapidly expanding international system of formally equal sovereign states based on normative rules of general agreement. See infra note 4 and accompanying text.

4. See Benedict Kingsbury & Adam Roberts, Introduction: Grotian Thought in International Relations,

   in HUGO GROTIUS AND INTERNATIONAL RELATIONS 1, 8–9, 13 (Hedley Bulls, Benedict Kingsbury & Adam Roberts eds., 1990) (describing the concept of solidarity and toleration of differences that are clearly discernible in Grotius’s writings); see also EDWARD KEENE, BEYOND THE ANARCHICAL SOCIETY: COLONIALISM AND ORDER IN WORLD POLITICS 143–44 (2002).

5. Without playing into any post-modern angst, it is productive to keep in mind David Kennedy’s

   injunction that the very act of analyzing the past (not to mention casting judgment on it) is to do violence to the doctrinal and theoretical content of earlier scholarship and can often misguide us to think that our vision is somehow more sophisticated and less contradictory. See David Kennedy, Primitive Legal Scholarship, 27 HARV. INT’L L.J. 1, 95–98 (1986).

   It is these questions that this Article attempts to grapple with, in the hopes of providing a concise synthesis of the various engagements within the Grotian tradition to better understand the imaginative contours of our contemporary professional vocabularies and reflect on any emancipatory possibilities this might open up. What seems particularly striking is while ever more scholarship exposes a strong empirical dissonance in respect to the memory of Grotius, such representations continue to exercise a powerful sway over ongoing discussions about the past, present, and future of global governance. In response, this Article is organized into three themes which overlap in some respects, but are nevertheless helpful in parceling out the various approaches and motivations at work in the literature. Parts I and II provide an overview and then a revisionist account of the claims to what might be labeled the turn to “the secular” and “liberal tolerance.” In Part III, this Article moves to reflect more broadly on the implications of this attraction, attempting particularly to deduce some possible motivations for the continuous misreading of Grotius’s actual work. In conclusion, this Article briefly traces out some initial suggestions about an alternative future towards the legacy of the Grotian tradition, which might be characterized as a shift from a politics of restatement and denial to a politics of truth.

   
   

   1. THE SECULARIZATION OF INTERNATIONAL LAW

      
      

      In the first contemporary stream of argument, Grotius is viewed as setting forth a secularized restatement of natural law whereby political ethics now becomes capable of articulation independent of any theological premise. In the first half of the twentieth century, though still prevalent in mainstream

      literature,6 this claim was typically supported by pointing to an early quotation

      
      

6. See, e.g., Deborah Baumgold, Pacifying Politics: Resistance, Violence, and Accountability in Seventeenth-Century Contract Theory, 21 POL. THEORY 6, 9 (1993); see also ARTHUR NUSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS 105 (1947) [hereinafter NUSSBAUM, CONCISE HISTORY OF THE LAW OF

   NATIONS] (“[Grotius] made an important step toward the emancipation of international law from theology by his famous pronouncement [about] the law of nature.”); Josef L. Kunz, Natural-Law Thinking in the Modern Science of International Law, 55 AM. J. INT’L L. 951, 951–52 (1961) (“The Protestant Grotius, who wrote the first treatise on international law, was still strongly influenced by the traditional natural law, but he secularized it by stating that natural law would be valid even if there were no God. This secularization profoundly changed the character of natural law. . . . [T]he Catholic natural law is . . . discovered by man’s recta ratio—a term stemming from the Stoics; yet . . . it necessarily presupposes the Christian faith in the Creator . . . . [W]ith Grotius this right reason becomes the basis of natural law.”); Arthur Nussbaum, Just War—A Legal Concept?, 42 MICH. L. REV. 453, 466 (1943) (“[Grotius] claimed in earnest that the law of nations and international law derived therefrom could subsist without a divine foundation.”)...