THE SHIELD OF ACHILLES

by Bobbitt, Philip

  At each important stage in Grotius's life, he was called upon to perform essentially professional duties as a lawyer that were of the greatest significance for his scholarly, philosophical work. Abstracting from a particular undertaking in a political, legal, or religious controversy, he found the underpinnings for his great jurisprudential essays, which cannot be usefully understood apart from these foundational ideas. These ideas might be stated as an epigram: history is the bridge between strategy and law; and law is the bridge between religion and politics. During his life, Grotius often suffered on account of his faith in these ideas, but had he lived somewhat longer, he would have been confirmed in their ultimate power.

  In 1601 Grotius was appointed Latin historiographer for Holland. He undertook to provide an historical apologia for the United Provinces, comparable to other national histories produced by humanists of the sixteenth and seventeenth centuries. This history had an unusual significance for the Netherlands, however, owing to the Dutch revolt against Spanish rule. Most observers outside the Dutch Republic, and a considerable number within, entertained serious doubts about the legitimacy of the regime.* Foreign opinion was crucial to the Republic because the Dutch had had to rely on foreign intervention and assistance to resist Spain, the dominant military power of the era. In order to present the Dutch case in terms that made sense to the European learned public, Grotius drew a line of continuity between the Batavian Republic of antiquity and the Holland of his own day. This work, published as De Antiquitate in 1610, provided a classical justification for the constitutional theory on which the Dutch Revolt was predicated. On this theory, the counts of Holland in the Batavian periods were not “monarchs” in the then-contemporary sense of the kingly state, but only hereditary executive officers. This history absolved the Dutch from the accusation of revolution against the king of Spain, who was not, in Grotius's view, their lawful dynastic ruler. This was the first important instance of Grotius's professional practice providing the impetus for his theoretical ideas.

  A second significant example occurred in 1604. An admiral of the Dutch East India Company had taken a Portuguese carrack, the trading ship Santa Catarina, as a prize in the Straits of Malacca. This capture had offended the Mennonite shareholders of the company who regarded war as offensive to Christian beliefs. They threatened to withdraw from the company and set up a rival firm in France. The directors of the company, which had been founded by Oldenbarneveldt, turned to Grotius for a legal opinion evaluating the incident. In order to show that the prize taking was not an act of piracy, Grotius had to show why the war was lawful. Then as now, criminal acts of terrorism had to be carefully differentiated in law from acts of war. Grotius's essay, completed in 1606, is commonly known as De Jure Praedae Commentarius and was the basis for his masterpiece, De Jure Belli ac Pacis. The latter work represents a process of generalizing from the examples adduced in De Jure Praedae.*

  In 1607 Grotius was appointed Advocate, or attorney-general, of Holland. He was twenty-four. He was by now firmly associated with Oldenbarneveldt, who led one of the two great political movements in the United Provinces, and who was opposed by Prince Maurice.28 Grotius's close ties with the Dutch East India Company brought him his first diplomatic mission as a member of a delegation to the Anglo-Dutch trade conference on Asian affairs in 1613. During these meetings Grotius was already well known enough to ask for, and be granted, a private meeting with King James I. Typically, however, the subject of this meeting was theology, not East Indian trade.

  In Holland Oldenbarneveldt had become the champion of the Arminians, a liberal wing of the Calvinist church that attempted to soften the strict and pitiless doctrine of predestination. As with most religious conflicts of this period, this one played into international politics: the strict Calvinists, or Anti-Remonstrants, accused the Arminians of being papists and idolaters. Oldenbarneveldt's party was linked to France, a Catholic state; Maurice's party was linked to Britain. Grotius, reflecting a lifelong conviction that the Reformed churches—Anglican, Lutheran, Calvinist, and others—should all unite, and eventually unite with the Roman Catholic, took his case to King James. The English king, a sophisticated intellect but utterly without a taste for attempting difficult political crusades, seems to have merely endured Grotius during a memorable interview. Grotius believed he had persuaded England to act as mediator between the Dutch factions, and even to favor the Arminians. This proved overoptimistic. The English did not intervene, and the king later recalled, “[Grotius] was some pedant, full of words and no great judgment.”29

  That same year, 1613, Grotius was chosen by Oldenbarneveldt to be pensionary for Rotterdam, making him Oldenbarneveldt's chief lieutenant in Holland. For the next five years he was deeply involved in attempting to heal the schism in the Dutch Reformed Church while asserting the independent federal status of the States of Holland. Grotius and Oldenbarneveldt apparently underestimated the mortal threat they posed to the centralizing goals of Prince Maurice of Nassau, who was, as we have seen in Book I, attempting to create in the Dutch provinces something like a kingly state with a unified church. The States of Holland and other states had resisted this effort and had persistently refused to accept the actions of the States-General, had refused to pay their share of national taxes, and had even raised a militia.

  On August 29, 1618, Maurice struck. Oldenbarneveldt, Grotius, and the pensionary for Leiden were arrested. A special tribunal convicted Oldenbarneveldt and Grotius of high treason. Oldenbarneveldt was executed on May 13, 1619; Grotius was imprisoned for life at Loevenstein Castle. He was thirty-five. Like Machiavelli, he had risen as the brilliant protégé of a forceful and controversial leader, and had fallen with him; like Machiavelli he would spend the rest of his life writing and plotting his return to power; and like Machiavelli (and Thucydides), his ultimate fame would rest on the tracts he wrote while helplessly watching events in his native land in which he played no effective part.

  In Loevenstein Castle Grotius was allowed to continue his studies. During this period he wrote a treatise on Dutch law (which treatise was used in South Africa well into the nineteenth century) and a widely published book on the truth of the Christian religion. Books were brought to him in large crates. Fittingly, for such a bookish person, he managed to escape by hiding in one of these library chests. He fled to Antwerp, then to Paris, where he was welcomed by Richelieu and given a pension. Because he was a Calvinist, however, he was denied any university post. It was in Paris that he wrote De Jure Belli ac Pacis.

  This classic work is, one suspects, more cited than read. Martin Wight aptly speaks of “trying to pick a path once again through the baroque thickets of Grotius' work, where profound and potent principles lurk in the shade of forgotten arguments, and obsolete examples lie like violets beneath gigantic overgrown rhododendrons.”30 There is much to learn, however, from Grotius's method, which consists of abundantly collecting examples, usually from antiquity, to illustrate various points. This method is both the basis for and the consequence of his fundamental commitment to natural law, a subject that will be taken up presently.

  For ten years Grotius tried to find a way back into Dutch politics. The death of Maurice in 1625 encouraged him, as did the support promised him in his correspondence with Frederick Henry, Maurice's heir. The city of Rotterdam had not dared to appoint another Pensionary because Grotius had been appointed for life. Finally, in 1631 he returned to the Dutch Republic, but in April the next year he was declared a fugitive by the States of Holland and he fled once again, this time to Hamburg.

  Gustavus Adolphus's admiration for Grotius was well-known through-out Europe. After the Swedish king's death, Oxenstierna interviewed Grotius at Frankfurt-am-Main in 1634 and engaged him as the Swedish ambassador to the French court. This was a crucial period in French-Swedish relations: the Treaty of Compiègne, which brought France into the Thirty Years' War, was negotiated in 1635. Moreover, it was a difficult time for Sweden: after the Swedish defeat at Nördlingen, France became t
he dominant partner in the alliance and a competitor for postwar leadership.

  Grotius served for ten years in Paris, despite repeated requests for his recall by Richelieu, who apparently detested him. It is usually said that Grotius was a failure as a diplomat, a “typical example of the intellectual in politics, lacking in political tact and common sense and more at home in the world of ideas.”31 Whether this was so, the French-Swedish relationship was not managed by Grotius. The real negotiations with France were carried on in Hamburg by Johan Adler Salvius and by Oxenstierna himself. When Grotius was finally dismissed, it was probably the result of his being caught between the queen's peace program, which offered a conciliatory attitude toward France, and Oxenstierna's less flexible policies.

  It was Grotius's identification with the chancellor and the old guard in Swedish affairs that probably led to his dismissal. Incompetence is seldom a complete bar to diplomatic appointment, even for intellectuals, and Grotius was, and had been for a long time, a celebrated figure in the European republic of letters. During these years when he repeatedly angered the French over his refusals to accept French rules of precedence—rules that were to cause no little conflict at Westphalia—his main activity was not diplomacy but theology. His studies of the dogmatic disputes between the Protestant and Catholic churches favored unification, a position that brought forth abundant and wrathful tracts from Lutheran and Calvinist theologians.

  Widely regarded as a failure in Paris, he was not included in the Swedish mission to Westphalia. He was, however, asked to be a member of the Swedish Council of State. This he declined, and began the journey back to Paris from Stockholm. A shipwreck cast him on the coast of Pomerania, the scene of Gustavus's great triumphs of 1630. There he died of exhaustion at Rostock. Three years later the Peace was signed and his immortality sealed, because the Peace presupposed the “juridical order without a higher political authority” of which he had been the most ardent and celebrated advocate. Hedley Bull concluded that the “idea of international society which Grotius propounded was given concrete expression in the Peace of Westphalia, and Grotius may be considered the intellectual father of this… general peace settlement…. [I]n their broad impact on the course of international history, the theory of Grotius and the practice of the Peace of Westphalia marched together.”32

  Grotius himself regretted his career. He frequently remarked that he ought not to have gone into law but stuck with literature, a frequent complaint of law professors with literary tastes. He sent his two sons into the army, not to the university as his father had sent him. And his last words are reported to have been “By undertaking many things, I have accomplished nothing.”33 Like other great men he seems to have forgotten that it takes an army of successors, often misinterpreting the great man's works or perverting them for their own reasons, to really accomplish something. Whether that posthumous army is summoned to any particular thinker's banner is usually not a matter of the great man's doing, as Oldenbarneveldt might ruefully have told him.

  What is the “Grotian view,” if by that question one asks “for what principles does Grotius's posthumous army fight?” Generally, a “Grotian view” is taken to mean the assertion of a duty on the part of the individual state to serve the interests of the society of states as a whole. A weaker version of this simply asserts that there are such interests; a stronger version claims that only such interests can justify certain activities of the State, such as war. Thus the Grotian view is to be distinguished from the Hobbesian view that international society can have no legal rules because there is no sovereign to organize and maintain the collaboration among states that might replace the constant struggle of each state against every other state. Although the Grotian society of states is perhaps anarchic, it does not exist in a naked state of nature. The rationale for the Grotian view is that there exists a great society of all mankind—humani generis societas—and all human institutions are governed by the rules of that society. Thus the Grotian perspective is also quite different from the Kantian view that perpetual peace can only be achieved through the construction of suprastate institutions.

  Six corollaries follow from the Grotian view: that natural law is a source (though not the only source) of the rules that govern states (because man is a creature of nature, and all his activities are governed thereby); that international society is universal and not merely limited to Christendom or the European states system; that individuals and nonstate actors can have a role in the application of the rules of international law; that the universal traits shared by all mankind can give rise to cooperative requirements, and these requirements can be a source of justice; that suprastate institutions are not necessary for the rule of law to be applied to states; 34 and that, being a source of law, the individual person is a bearer of rights.35 Taken together, this infrastructure of ideas provides a surprisingly modern and surprisingly accurate description of international law as it actually is— universal yet pluralistic, occasionally the source of cooperation, functioning in the absence of a universal sovereign but difficult to enforce and rarely functioning very authoritatively, a discipline that embraces not only the relations among states, but also the human rights of individuals. Whether this intellectual infrastructure was actually supplied by Grotius, or is the invention of his highly capable and imaginative disciples, I am not certain. For our purposes it is enough to see that the constitutional aspects of the Peace of Westphalia are consistent with this vision of international law, though this may well be because it is a source of that vision rather than its product.

  Of greater relevance to our study, however, is the Grotian method, and not simply the views advocated by those who are deemed “Grotians.” This method supplies the ways of interpretation that are indispensable to a constitution. It was the absence of such accepted interpretive methods that had proved so destructive of the previous constitution, the Peace of Augsburg. Grotius's work is a milestone in human thought, a humanist achievement that links Erasmus and Adam Smith, but it lies not in the precepts of Grotius (the infrastructure so effectively and inspiringly described by Bull) but rather in the mundane and quotidian incidents of practice.

  Our starting place must be this brilliant observation by Mattingly:

  [Grotius] was only trying, like most of his contemporaries, to justify what men were doing or thought they ought to be doing… But he was the first person to see, or to make clear that he saw, that, to be persuasive, the argument must be couched in the terms not of the interests of a single unitary commonwealth of which the princes and republics of Christendom were subordinate members, but in terms of the interest in their own self-preservation of the independent, ego-centered, absolutely sovereign states whose aggregate composed the heterogeneous, pluralistic international society of western Europe. That was what the future was going to be like.36

  In other words, Grotius linked his arguments to the newly emerging society of kingly states.

  Grotius's method was to completely forgo the rich store of glosses, commentaries, opinions, and precedents of the immediate past—the past just preceding and following Augsburg—in favor of Cicero, Plutarch, and Livy. Biblical citations and classical references to the political behavior of the Greeks abound in Grotius; indeed the sheer assembly of all the classical instances that can be brought to bear on contemporary problems can be dazzling, even overwhelming. This is the method of the exemplary: finding and citing examples of previous state behavior, organized according to the principal problems facing the new state society of Europe. Nothing like this appears again until The Federalist Papers, which became for the American constitution a rich source of interpretive methods. Grotius did this for the European constitution.

  Rousseau, with his customary eye for the corrupt and self-serving, saw through this method entirely. In The Social Contract, he wrote: “Grotius denies that all human government is established for the benefit of the governed and cites the example of slavery. His characteristic method of reasoning is always to offer fact as
a proof of right. It is possible to imagine a more logical method, but not one more favorable to tyrants.”37

  But that was the point: Grotius's method—the exemplary, offering “fact as a proof of right”—enables law to act as an ameliorative bridge between religion and politics, channeling real and otherwise insoluble conflicts into more detached, legal terms. Rousseau's method, and that of the political philosophers who were his contemporaries, was instead to imagine a just rule and demand that the State adhere to it. Whatever the justice of Rousseau's method, and I think there is less than is commonly assumed, it is not a method that provides interpretive modalities. It is a pamphleteer's method, not a lawyer's. What the lawyers were trying to do, Mattingly reminds us, “was to rationalize the usual conduct of European governments, or justify the position of a client or patron in a dispute.”38 Pre-cisely—and this is what gave Grotius his uncanny ability to anticipate what would be the course of the international society whose fate was being negotiated at Osnabrück and Münster as he lay dying in Rostock.

  This is the true ground of Grotius's otherwise elusive concept of natural law. It is no more than the way things are done; not the substance of the law, not the things being done themselves—this Grotius called the “volitional law”—and not the divine law, but the ordinary, everyday methods of arguing and putting forward interpretations. Grotius appears to have believed that with this approach he might find a receptive audience for his ideas about uniting the conflicting theologies of post-Reformation Europe. Here he attempted too much: law might be a bridge between religion and politics, but not between religions. Only a true humanist could have thought otherwise.