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

Abstract

The specter of Hugo Grotius remains an important reference point within the conceptual vocabulary of international law. In this paper, I provide a brief analysis of how Grotius’ legacy functions within the rhetoric of international legal texts via lessons from the ‘New Approaches to International Law’ tradition (e.g., David Kennedy, TWAIL), as well as other heterodoxical sources that found a place within international legal scholarship through advances by the ‘critical studies’ movement more generally (e.g., Alain Badiou, Judith Bulter). In particular, the paper critically takes up the rhetoric of Grotius in relation to two mainstream claims: first, that modern international law is ‘secular’, and second, that international law, in relation to this turn to a secular orientation, is committed to some cosmopolitan ethic of ‘tolerance’. Offering alternative readings of Grotius in light of these claims, I conclude the paper with some brief suggestions about how we might participate in a new tradition of remembering Hugo Grotius.

I am deeply grateful to the generosity, encouragement, and thoughts of first and foremost Peter Fitzpatrick and Mark Janis, as well as Jason Beckett, Jose Maria Beneyto, Bill Bowring, Stephen Chan, Justo Corti, Matthew Craven, Catriona Drew, Florian Hoffmann, David Kennedy, Rob Knox, Boris Mamlyuk, Susan Marks, Anne-Charlotte Martineau, Ugo Mattei, Scott Newton, Reut Paz, Ignacio de la Rasilla del Moral, Akbar Rasulov, and Joseph Singer. I also wish to express my thanks to the Institute for Global Law and Policy (IGLP), the International University College, Turin (IUC), the Centre for the study of Colonialism, Empire and International Law (CCEIL), the Erik Castrén Institute of International Law and Human Rights (ECI), the Institute for the study of Political Economy and Law (IPEL), the editorial staff at Emory International Law Review (where an earlier but similar version of this paper was published in 2011), and my colleagues at Durham Law School and Mississippi College School of Law. The views expressed in this article are, of course, solely my own.

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1 Introduction: Grotius as Narrative

Hugo Grotius (1583–1645) frequently occupies the title, ‘father of international law’. 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.¹ In the first instance, Grotius is important because he is said to have made a methodological leap in one form or another from a theological to a secular frame of jurisprudential thinking, and in so doing, characterizes the dilemmas of governance in terms familiar to modernity.² 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, toward a more liberal tolerance of difference and a sentiment of restraint toward over-aggrandizing political agendas.

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’ primary materials in recent decades, what does an emphasis on the actual content of Grotius’ 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, or even 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 do the Grotius rhetoric allow us to tell about the international legal order, and do such stories carry any political, if not personal, impact?³

It is these questions that I attempt to grapple with in this paper 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 powerful sway over ongoing discussions about the past, present, and future of global governance. In response, I have organized the paper into three themes, which overlapping in some respects, are nevertheless helpful in parceling out the various approaches and motivations at work in the literature. The first and second sections 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 the third section, the paper moves to reflect more broadly upon the implications of this attraction, attempting particularly to deduce some possible motivations for the continuous misreading of Grotius’ actual work. In conclusion, I briefly trace out some initial suggestions about an alternative future toward the legacy of the Grotian tradition, what might be characterized as a shift from a politics of restatement and denial to a politics of truth.

2 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 become capable of articulation independent of any theological premise. In the first half of the twentieth century, though still prevalent in the mainstream literature,⁴ this claim was typically supported by pointing to an early quotation from De Iure Belli ac Pacis: ‘[w]hat we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him’.⁵ More recent scholarship has radically undermined this line of argument, pointing out that Grotius’ intent here was not to push Christendom toward some agnostic reappraisal of political order, but quite paradoxically, to silence the seventeenth century Pyrrhonic skepticism of God’s existence by demonstrating that Christianity was left unscathed even through the use of human ‘right reason’.⁶ In addition to his voluminous work in the field of Christian apologetics and tragedy dramas based on Biblical figures,⁷ scholars have typically pointed to the very next line following Grotius’ famous passage as proof of his religious conviction: ‘The very opposite of this view [that there is no God, or that the affairs of men are of no concern to Him] has been implanted in us partly by reason, partly by unbroken tradition, and confirmed by many proofs as well as by miracles attested by all ages…[so that] it follows that we must without exception render obedience to God as our Creator.’⁸ In response, scholars that mark off Grotius as a “great pioneer of modern thinking” maintain that these various appeals to Christianity are not confessions of deep religiosity, but an agnostic strategy to win over Christian populations and their leaders.⁹ For legal historians, such as Richard Tuck, Grotius’ work falls within the humanist tradition and its emphasis upon the inescapability of the aggressive and self-interested nature of humanity, and in fact, was therefore by no surprise largely motivated by Grotius’ personal commitments to Dutch colonialism (which, in its expansion, was increasingly coming into contact with foreign cultures) and his own families’ economic advantage (Dutch shareholders in the East Indies’ Company).¹⁰

To some extent, at least at first glance, Grotius’ minimal Christianity does seem an agnostic effort to find a common settlement between societies with competing jurisdictions, laws and religious doctrines. In laying out the fundamental tenets of Christianity, Grotius shies away from all sectarian doctrines that might upset relationships between Dutch Protestants and Spanish and Portuguese Catholics whereby in place of any talk about the Trinity or the need for redemption, all that remains are a relatively tame set of tenets: there is a single God that actually cares for all humanity and sits unseen in judgment over their behavior, that Jesus is the resurrected Son of God, and that the faithful will enjoy everlasting life after death, while the wicked will be punished.¹¹ Moreover, his theorizing on the laws pertaining to warfare do not follow the scholastic tradition of limiting (or even prohibiting) war, but on the contrary, seems to argue adamantly for rather cynical, almost amoral principles of behavior for both individuals and states: states and individuals aspire to sociability, but are equally prone to violent clashes of self-interest; the possession of natural rights allows for autonomous free will, but also the legitimacy of contracting oneself or community into slavery; and though Christian sovereigns are to refrain from barbarity in their military hostilities with one another, in a move foreshadowing later French colonial justifications, they have both the divine and natural sanction to invade and conquer foreign territory by whatever means necessary under the pretext of the ‘benefit of human Society’. Thus, Grotius’ willingness to discover natural law in the practices of sovereigns, the subjectivizaton of just cause rationale in warfare, as well as his prolific use of ancient classical authorities to arrive at conflicting opinions, suggest on some level that his ultimate decision to locate normative authority in a universal, divinely willed framework was less his agreement with prior scholastic theologians and jurists, than it was the afterthought of a humanist to make his theories palpable to a Christian-colored political order.¹²

Upon closer inspection, however, to claim Grotius as some ‘avant-garde of secular jurisprudence’ is forced to suppress the overall tenor of his writings and personal beliefs, as well as miss strong thematic linkages between his ‘secular’ work and the “profoundly Christian” traditions of the Protestant humanists and late medieval Catholic jurists.¹³ First, the minimal Christianity he expounds in both his political polemic concerning warfare, De Iure Belli ac Pacis, and his Christian apologetics, The Truth of the Christian Religion, is not simply the work of an agnostic strategically wooing Christian states, but very much in keeping with his own personal religious convictions as a Remonstrant and a pupil in Leiden under Arminius. As both a diplomat and theologian by professional calling, and politically repressed along with other Remonstrant members by Calvinist forces in the Netherlands and condemned to life imprisonment (though his wife engineered his daring escape, being smuggled out of prison in a suitcase), Grotius’ avoidance of points of doctrine was not conceived as a neutral position, but firmly understood to be a religious polemic in favor of a broad understanding of Christendom.¹⁴

Second, Grotius’ rather ‘thin’ conception of human sociability—whereby human nature wars between the desire for rational order amongst each other and conflicting self-interests—was not some nascent twentieth century ‘realpolitik’ that he applied evenly across the global spectrum, but aimed particularly at accentuating the difference between Christian and non-Christian societies in accordance with the Protestant and Catholic humanist traditions from the late medieval and Reformation/Renaissance eras. In the Catholic tradition, the propaganda campaign for the anti-Turkish Crusades carried out by Pope Leo X (1513–21) produced a robust corpus of humanist jurisprudence that condemned warfare between Christian powers while justifying unrestrained warfare upon non-Christian societies.¹⁵ Humanist jurists by the early sixteenth century viewed inter-Christian warfare as potentially just for both Catholic and Protestant camps, falling into an almost Darwinian explanation of Providence’s design—the humanist jurist, François Connan, for instance, echoing his master, Andrea Alciato that “you can investigate and speculate all you like, but you will find no other reason … [than that] by a tacit law of nature the weaker give way to the more powerful; from which single principle all the laws of war derive.”¹⁶ In other words, Grotius’ distinction between just and formally legal wars was not by any means a ‘significant’ leap from a unified conception of faith to a subjective agnosticism,¹⁷ but actually a popular technique among Christian jurists and theologians to unify the populations and leaders around an external enemy, thereby preserving the balance of power within Christendom itself and guarding against any revolutionary uprising within its own territories. Legitimate warfare to dismantle the status quo was bracketed outside of the domestic realm of Europe, whereas internal conflict could be characterized as illegitimate violence that demanded immediate police action to preserve what was in fact some mythical homogeneous stability (though keeping open the possibility of exceptions, e.g., the Dutch toward the Spanish).¹⁸

It is within his passages concerning the justifications and conditions of warfare, especially in relation to foreign non-European territories, that Grotius is perhaps most often misread to announce the dawning of the modern secular regime of international law. In a characteristic excerpt that touches on some of the more popular themes said to point toward a secular understanding of politics and law, Grotius writes:

Kings, and those who are invested with a Power equal to that of Kings, have a Right to exact Punishments, not only for Injuries committed against themselves, or their Subjects, but likewise, for those which do not peculiarly concern them, but which are, in any Persons whatsoever, grievous Violations of the Law of Nature or Nations. For the Liberty of consulting the Benefit of human Society, by Punishments, which at first, as we have seen, was in every particular Person, does now, since Civil Societies, and Courts of Justice, have been instituted, reside in those who are possessed of the supreme power… we follow [the tradition of writers] who hold that War is lawful against those who offend against Nature; which is contrary to the Opinion of Vitoria, Vasquez, Azorius, Molina, and others, who seem to require, towards making a War just, that he who undertakes it be injured in himself, or in his State, or that he has some jurisdiction over the Person against whom the War is made. For they assert, that the Power of Punishing is properly an Effect of Civil Jurisdiction; whereas our Opinion is, that it proceeds from the Law of Nature.¹⁹

The passage carries a distinctly modern feel a la Clausewitz: warfare is not simply a necessary evil that comes with humanity’s sinful nature as would be the case with Hobbes, rather it is the very continuation of law by other means.²⁰ War is litigation, or at the very least, wrapped up in juristic exercises—what David Kennedy has discussed in the modern context of the American military as ‘lawfare’.²¹ Moreover, the rejection of the neo-scholastic tradition suggests both a prima facie rejection of faith in the hierarchies and dogma of medieval Christendom, and at least a hesitant step away from any overarching normative natural order toward a positivist regime of subjective reciprocal rights held by competing sovereign entities.²² To be sure, the ‘law of nature’ is still referenced, but it is now coterminous with the ‘law of nations’, and in the place of ecclesiastic authorities imposing the wishes of the divine, sovereignty now seems to take an anthropological turn whereby it is left to secular rulers to mete out material punishments on behalf of the ‘benefit of human society’.

This, however, does not seem to actually be the case; the turn to subjectivity and the emphasis on state sovereignty had nothing to do with any atheistic or agnostic turn in intellectual disposition, but in fact orthodoxies of the Protestant Reformation initiated by Luther and his jurist comrades. Concerning subjectivity and the distancing from ecclesiastic authority, Luther argued against the Church as mediator between the sinner and God to instead present the laity itself as the living Church, and each believer their own priest. On the one hand, this meant that each individual, as their own “lord”, was granted “the splendid privilege” of “inestimable power and liberty”.²³ Drawing here upon the tradition set by thirteenth and fourteenth century Catholic theologian reformers,²⁴ Luther anticipates Grotius (if not Kierkegaard), to celebrate the subjective Christian experience of “the inner man” who nurtures faith away from the sinful crowd. In this sense, the Lutheran movement (and which would be carried further in Calvinism) swept away the Church as the locus and vehicle of the sacred with its emphasis on the necessity of salvation through a wholehearted personal adhesion. On the other hand, however, the priestly calling brought not only freedom, but also the responsibility to imitate the example of Christ in everyday life, a duty of sociability and positive reciprocal care. “Christ has made it possible for us, provided we believe in him, to be not only his brethren, co-heirs, and fellow-kings, but also his fellow-priests,” reminds Luther, “A man does not live for himself alone, he lives only for others”—and not only for the living, but also to owe fidelity, an almost Aristotelian sociability so famous in Grotius’ own legacy, to all the Christian believers who had already died, the “saints in heaven”.²⁵ Thus, while the church itself had lost is central mediating role, salvation continued to be at least implicitly premised on connections to a wider order, only the sacramental life was now brought into the daily vocations and relationships of the citizenry and its government whereby our understanding of ‘the good’ would only be discoverable within human life.

By denying the distinction between the sacred and profane, the anthropological turn that we begin to witness coming into focus more fully with Grotius, therefore, does not mark a turning away from Christian thought, but rather its interpenetration into the routine activities of this life. Instrumental rationality takes on fresh importance as the very act of coming to God, as well as the marker of actively belonging to a shared political community.²⁶ As Kennedy observes, Grotius’ willingness to ‘find natural law in the practices of sovereigns’ is not so much any ‘relocation of normative authority from divine to sovereign will’ but that ‘natural law accords with and is binding as a matter of divine law’ whereby the sovereign may be the source or vehicle, but by no means the origin of the law of nations.²⁷ Writing during what was in many ways the tail end of the Protestant Reformation, the turn to secular authorities in Grotius’ text again displays a characteristically Lutheran tenant: that the specific practices and rules of the territorialized secular administrations were in fact the albeit imperfect manifestation, or ‘mask’, of God’s will.²⁸ Breaking from the scholastic tradition that human reason could prove the divine sanctity of moral propositions, Luther’s colleague, the eminent Philip Melanchthon argued that God has implanted certain ‘elements of knowledge’, whereby humanity could use reason to discern the general principles of God’s will, but only imperfectly. For Melanchthon, the state had the duty “of transforming the general principles of natural law into detailed rules of positive law” that could meet the ‘practical considerations of social utility and the common good’, what he called nothing other than ‘rational positive law’.²⁹ In other words, ‘rational positive law’ straddled the line between earth and heaven: on the one hand, the divine will of God manifest through the deliberate labor of the faithful; on the other hand, carried out under the limitations of humanity’s sinful nature, an always incomplete quest for perfection, which could only seek the eternal through its preoccupation with the “political, economic, and social needs in given times and places”.³⁰ Thus, for the Protestant lineage of jurists, including Grotius, the violation of the fundamental laws of nature or of nations is therefore not an end in itself, but rather an extension of some violation against the divine foundation of existence.

3 The Rise of Political Liberalism

In the second stream of argument, Grotius earns the title “father of international law” for advocating what is said to be a liberal universalism that embraced diverse religious and political forms (often claimed nowadays as a central tenet of modern international law), sometimes called the ‘Grotian tradition’. In this vision, the losers are the medieval res publica Christiana, symbolized by the Holy Roman Empire and the Catholic Church, as its “objective hierarchy of normative meaning” gives way to a pristine European order of nation-states premised on “sovereign equality, religious agnosticism and balance of powers.”³¹ In a classic description of this claim in relation to Grotius’ political liberalism, Hersh Lauterpacht writes in the immediate aftermath of the Second World War:

[Let us] explain the significance … of the Grotian tradition in the history of the law of nations. He secularized the law of nature. He gave it added authority and dignity by making it an integral part of the exposition of a system of law which became essential to civilized life… distinguished not only by the fact of its recognition of a source of law different from and, in proper cases, superior to the will of sovereign states… [but] largely based on and deduced form the nature of man as a being intrinsically moved by a desire for social life, endowed with an ample measure of goodness, altruism, and morality, and capable of acting on general principles of learning from experience… [desiring] peaceful and organized life according to the measure of his intelligence …³²

In what must have felt particularly relevant to a European landscape torn asunder by nationalist passion and violent superstitions, Lauterpacht sees the Grotian spirit of international law to function as a restraining influence on political aggression, as well as the source and articulation of morality (‘endowed with … goodness, altruism and morality’) and knowledge (‘learning from experience’). Here, Lauterpacht adopts the traditional narrative that Grotius “secularized” the law of nations, which in turn, provides the groundwork for claiming international law as a detached process of peaceful resolution. In light of our discussion so far, we might be suspicious about Lauterpacht’s claim that international law emerged in the waning twilight of religion as a neutral, deliberative process devoid of religious or political prejudices. However, other scholars have specifically appealed to the religious, or at least spiritual character, of the Grotian tradition to claim international law as a tolerant, universalizing project in otherwise strikingly similar terms to Lauterpacht’s image. Writing only a few years after Lauterpacht, the British jurist and legal historian Arthur Nussbaum emphasizes the close link between the spiritual and liberal character of Grotius’ work:

A cognate trait of great importance was Grotius’ tolerance… Grotius a pious Protestant writing at the time of the most savage of religious wars, refrained from any word which might have offended Catholic feeling… want[ing] to find a synthesis for Protestant and Catholics alike… [and thereby] opened a new path by the doctrine of what he called the temperament of warfare … urg[ing] moderation for reasons of humanity, religion and farsighted policy… From [his writing] emerges the picture of a man absorbed in his ideals, of a devout seeker after truth and right, and of a passionate and unswerving advocate of humaneness and conciliation—a picture borne out of his life. The spiritual light shining through the fabric of his work explains the success of his undertaking… His work has remained a living force… the essence of his thought has passed into the conscience of the civilized world. His name has become a symbol of justice in international relations.³³

The claim being made here, I believe, is more radical that what Lauterpacht proposed, though it equally results in support of the idea that international law expounds a universalizing faith that can tolerate religious and political diversity. The argument is not the traditional claim made by international lawyers that the discipline became secular over time, and thereby was able to engage with religious passions in a detached, more enlightened way. Rather, in Nussbaum’ strain of argument, international law is part of a living Christian lineage, but it is now this very religiosity itself which is now seen as one of the key elements in international law’s ability to embrace a more universalist vision of emancipation and brotherhood. In more recent years, the American legal historian Mark Janis has eloquently argued for this version of the Grotian tradition:

It was the imprisonment and exile of this religious and political liberal that both provided the time to write and inspired the theme of De Jure Belli ac Pacis… Trained and famed as a theologian as well as a jurist, Grotius unashamedly brought the Bible to the law of nations. It is important to note that Grotius brought religion to the discipline not to exclude other religious groups (be they Calvinists, Catholics, Jews or Moslems), but to show that his religion, a liberal and universal faith, proved that the law of nations was meant to include all peoples… His… [a] liberal Arminian universalism… [at] a time of religious wars among fiercely conservative faiths… was a more forgiving faith, but a faith nonetheless, that could tolerate religious diversity. Grotius employed this liberal religion as a critical source for proof of legal principles which could tolerate both religious and political diversity among the nations.³⁴

At first glance, the secular and religious version of the Grotian tradition of international law as a tolerant, civilizing force upon global governance seems to be affirmed in selective passages from De Jure Belli Pacis. Within the more secularist version of the tradition, Grotius seems to occasionally sweep away the primacy of the entire Christian normative order in favor of a formally equal, yet divergent array of sovereign authorities:

Just as, in fact, there are many ways of living, one being better than another, and out of so many ways of living each is free to select that which he prefers, so also a people can select the form of government it wishes; and the extent of its legal right in the matter is not to be measured by the superior excellence of this or that form of government, in regard to which different men hold different views, but by its free choice.³⁵

Likewise, this same sort of liberalism also seems to crop up in more religious readings of the Grotian tradition, especially in his polemics in favor of the legitimacy of agreements between Christian and heathen states:

Do we perhaps believe that we have nothing in common with persons who have not accepted the Christian faith? Such a belief would be very far removed from the pious doctrine of Augustine, who declares (in his interpretation of the precept of Our Lord whereby we are bidden to love our neighbors) that the term ‘neighbors’ obviously includes every human being… Accordingly, not only is it universally admitted that the protection of infidels from injury (even from injury by Christians) is never unjust, but it is furthermore maintained, by authorities who have examined this particular point (including Vitoria) that alliances and treaties with infidels may in many cases by justly contracted, for the purpose of defending one’s own rights, too. Such a course of action was adopted (so we are told) by Abraham, Isaac, David, Solomon, and the Maccabees…³⁶

It is tempting to read these passages (as so many do) as the initial soundings of liberal political thought, sowing the first kernels of what have become the familiar ethics of disengaged, subjective rationality and formal equality of sovereign nation-states so important nowadays in the daily posture of international law. This temptation contains some validity, for Grotius was in some regards original in reconciling the nominalist tradition of William of Occam and Duns Scotus (arguing that the normative order originates in the will rather some natural order) with the Thomist tradition espoused by late medieval scholastics (that the law of nature was absolutely perfect and did not allow for even divine derogation).³⁷ In Grotius’ solution, the normative order still originates in the willed actions of the sovereign, but the will itself is now constrained to a procedural conception of reason and consent. However, we should be careful not to read this anachronistically through some modern liberal democratic conviction. On the one hand, Grotius’ passage advocating the freedom of society to choose its form of government was conditioned upon the understanding that society was premised on ‘rational order’, which was almost exclusively reserved to the practice and customs of Christian states (e.g., Dutch federation of states, the French state). Thus, for instance, if a foreign territory did not structure land distribution around recognizable forms of industry and private property, Grotius argued the legal, if not moral, right of a conquering power to seize and use that land:

[O]ur natural needs are satisfied with only a few things, which may be easily had without great labor or cost. As for what god has granted us in addition, we are commanded not to throw it into the sea (as some Philosophers foolishly asserted), nor to leave it unproductive, nor to waste it, but to use it to meet the needs of other men, either by giving it away, or by lending it to those who ask; as is appropriate for those who believe themselves to be not owners of those things, but representatives or stewards of God the Father.³⁸

On the other hand, the argument that Christian states could enter into alliances and even protect infidels from violations against the laws of nature/nations was not a novel gesture of benevolent universalism, but firmly rooted within the Catholic humanist tradition (in direct contrast to the Thomist/Aristotelian/Lutheran argument for smaller communities) that came to prominence with the papacy of Leo X. As Richard Tuck has unearthed, at the Colonial Conference of 1613 at London, an English diplomat sardonically noted in the margins of a pamphlet prepared by Grotius containing this very same argument, ‘we think it very honest to defend oppressed people… against their wills’.³⁹ Indeed, for Grotius, not only could Christian nations conquer foreign lands for their own use, but also enslave them for their own good. ‘[Aristotle is correct] when he says that certain persons are by nature slaves,’ Grotius argues, ‘[N]ot because God did not create man a free being, but because there are some individuals whose character is such that it is expedient for them to be governed by another’s sovereign will rather than by their own’.⁴⁰ While Grotius contemplated that these liberties were reserved primarily in relation to European sovereign powers over non-Europeans, and especially Islamic populations, the rights of domination were not geographically delineated, and applied to non-Christians within the domestic borders of a nascent Western Europe.

In The Truth of the Christian Religion, Grotius presents a detailed series of arguments specifically condemning the religious and political systems of ‘Heathenism’, Judaism, and Islam. When Grotius turns to the ‘Heathen’ religions, for instance, he justifies the superiority of Christianity on the basis of its rationality, virtue and civility—to deny Christianity in favor of Heathenism, therefore, is to choose crude barbarism over a “delightful” and refined civility, wickedness over goodness, and ignorance over reason.⁴¹ In similar measure, the Jews and Islamic populations are seen as dissonant, if not outright dangerous, elements within the emerging sovereign order of nation-states that must be routinized, if not eradicated.

The Jews, in his view, were ‘a people of so obstinate a disposition’, and their laws, archaic and absurd, to have ‘taken so deep root in the minds of all the Hebrews, as never to be faced out’.⁴² Observing that ‘they have been driven out of their country, [that] they have continued vagabonds and despised, no prophet has come to them, no signs of their future return; their teachers, as if they were inspired with a spirit of giddiness, have sunk into low fables and ridiculous opinions, with which the books of the Talmud abound’, Grotius argues that the reason the Jews are not “heard [by God]… we must of necessity conclude one of these two things, that either that covenant made by Moses is entirely dissolved, or that the whole body of the [J]ews are guilty of some grievous sin, which has continued for so many ages: and what that is, let them tell us themselves; or, if they cannot say what, let them believe us, that that sin is the despising the Messiah, who came before these evils began to befall them’.⁴³ In other words, the systematic persecution of Jews carried throughout the history of the res publica Christiania—whether under the guise of the Roman Catholic Church, the Emperor, Protestant princes, or the emerging state entities—did not reflect its own moral failing, but due to the internal chemistry of both the Jewish psychology and institutional/cultural heritage, which bore the stain of God’s curse.

Grotius professed a similar disdain for Islam, ‘the Mehometan Religion’. To Grotius, Islam ‘was bred in arms, breathes nothing else; and is propagated by such means only… many times very unjust[ly]… against a people who no ways disturbed them, nor were distinguished for any injury they had done; so that they could have no pretence for their arms, but religion, which is the most prophane thing that can be, for there is no worship of God, but such as proceeds from a willing mind’.⁴⁴ Here, we could juxtapose these comments to Grotius’ early justifications for Christian nations to conquer and subjugate foreign people, for violating laws of Nature or Nations. On the one hand, Grotius might have cynically been maintaining a rather crude double standard whereby regular Christian warfare was nevertheless an unrelated aberration to its core tenets and only mobilized when absolutely necessary to maintain what was a by and large peaceful communal existence. On the other hand, the turn to ‘naturalizing’ Christian doctrine as ‘secular’ may also have allowed him to differentiate between ‘religious’ injury (which was not an acceptable pretext) and injury against the laws of Nature and Nations. Whatever the case, for Grotius, ‘Mahomet’ himself was not only ‘a long time … robber, and always effeminate’, who only attracted ‘men void of humanity and piety’, and orchestrated a false religion, ‘which was plainly calculated for bloodshed, delights much in ceremonies, and would be believed, without allowing liberty to inquire into it…’.⁴⁵ Just as Grotius’ disposition toward the Jewish populations intimates the violent logic that would manifest itself in mutated form in Hitler’s death camps, many of the prejudices toward Islam in Grotius’ work seem to bear a resemblance to the rhetoric surrounding the ongoing ‘war on terror’, and more generally, the struggle for liberal democratic governments throughout Islamic countries: the idea that Islamic forms of government possess an almost innately violent character, the juxtaposition between liberal democratic models and intolerant totalitarian regimes, or alternatively secularism versus rigid dogmatisms, and so on.⁴⁶ In this sense, perhaps writers like Lauterpacht and Nussbaum are right when they assert that the Grotian tradition lives on at the spiritual core of international law, but in a more perverse manner than either would care to openly contemplate.

4 The Politics of Restatement and Denial

The 1999 inauguration of the Grotius Lecture Series by the American Society of International Law opened with a speech by the Vice President of the International Court of Justice, Judge Christopher Weeramantry, reflecting on the purpose of the lecture series and its namesake.⁴⁷ In turning to recap the current atmosphere of the Grotian tradition, and turn to assessing its limitations and possibilities, it is worthwhile to reflect a moment upon a longer passage from this event:

The inaugural Grotius lecture … is an occasion of deep reflection on the fundamentals of our discipline… A moment to attempt to recapture the spirit of inspiration that moved this great pioneer of our discipline to struggle out of the limitations of the thought-frame of his times and carve out new pathways for international relations in the unchartered waters lying ahead…Grotius rose to the occasion—a towering intellect with a passionate vision of an ordered relationship among states—a relationship based not on the dogma of religion or the sword of conquest, but on human reason and experience… For Grotius’ contribution, all succeeding generations are in his debt. The new world order of European states that Grotius envisaged became a reality … The nation-state system took over the world… It was an eminently successful system for those nation states, but it was dangerous. Some would misread Grotius’ system as prescribing a lighted area of law and order for those within and fold, and an area of outer darkness for those without… That is now a past chapter. We are left with the aftermath of empire and task of cleaning up its problems… Like Grotius, we are seeking the friendly association of states and the peaceful resolution of disputes; we are also searching for principles of stability amidst the chaos of competing state interest… like Grotius, we are experiencing a sudden expansion of knowledge and power never seen before…⁴⁸ Colonialism was a dark chapter in global history and it has fortunately ended. After the long twilight struggle of dying empires, we must prepare ourselves … international lawyers, to rise to the task… [and] sail beyond the sunset of that world order and into the sunrise of a new world order of justice, peace and reconciliation.⁴⁹

The text above is a brilliant synthesis of traditional and contemporary feelings to explain the almost fetishistic hold of Grotius on the imagination of international lawyers. In Judge Weeramantry’s depiction, Grotius stands as a shining example of what international lawyers are at their best—drawing upon human reason, intelligence, and experience to civilize the ‘dogma of religion’ and the ‘sword of conquest’ through a ‘friendly association’ of nation-states. This figure embodies the ‘sweet reasonableness’ that Koskenniemi ascribed to Lauterpacht’s depiction of Grotius—the Victorian political reformer, armed with knowledge and compassion, searching out a ‘golden middle’ between the vagaries of apology and utopia.⁵⁰ At the same time, however, the traditional emphasis on curbing ‘natural’ anarchy through the self-enlightened cooperation and regulated intercourse of rules, norms, and institutions of sovereign nation-states is moderated by the shame and horrors of European imperialism, the ‘dark chapter is global history’.⁵¹ The importance of Grotius, therefore, is to remind international lawyers that the responsibility of the profession is to balance the contradictory needs of freedom and order, at once promoting political ambitions toward greater sociability (e.g., a fully inclusive global cosmopolitan order) while checking the excesses of political ambition (e.g., cultural or material imperialism)—just as Grotius stood against the tides of religious fundamentalism and violent political ambition, so too must international lawyers today transcend the allure of any form of zealous certainty (whether religious, national, and so on). Grotius comes to international lawyers who are searching for guidance like the voice of God out of the wilderness, giving clarity to past, present, and future, and calling upon the profession to restate its (almost messianic) mission in an ever-ascending progression upwards, ‘into the sunrise of a new world order of justice, peace and reconciliation’.⁵² At the end of the day, though not above the messy realities of human frailty and desire, international law is remembered in the dominant account of the Grotian tradition as a universalizing force of renewal and progress.⁵³

And yet, in light of the unearthed realities of Grotius’ positions, the curiosity remains: why does the literature of international law repeatedly fasten around his figure, continually misreading his efforts and his legacy in a consistent story of professional hope and affirmation? Indeed, if the Grotian tradition advocates international law as a politics of emancipation and restatement, it does so only by maintaining a politics of denial, not only concerning Grotius himself, but more importantly, about the nature and track record of its liberal cosmopolitanism project. To borrow from Lacanian terminology, we might say that the symbolic order that colors our argumentative patterns and imagination—the secular order and its professed formal agnosticism toward competing hegemonic claims⁵⁴—is itself a response to some underlying trauma, that something which resists symbolization: namely, a non-eclipsed background that not only threatens western rationalities by ‘heightening contradictions and suppressions involved in their construction’,⁵⁵ but more perversely, takes on the role of the Freudian death-instinct, compelling international law into an endlessly repetitive circular movement around a constitutive object that it dares not speak.⁵⁶ Here, law functions as a sort of feedback loop that allows society to rationalize and sustain the violence and failures of its past and present, as the necessary limitations of human understanding, while holding on to the belief that its principles are fundamentally sound and coherent, a veritable standard to understand ourselves in the world.⁵⁷ In such a Lacanian understanding of the rule of law, the Grotian tradition is nothing short of the symbol of the existential anxiety among international lawyers over the complex array of human (and more importantly, Western) limitations, both personal and at large.

What makes this trauma so difficult to disclose? I believe the answer contains both a material and symbolic element. On the one hand, the emergence of international law cannot be discussed as a professional, modern discourse without turning to the nineteenth century experiences of both internal (domestic) and external (foreign) colonialism: at home, the violent suppression of working class needs,⁵⁸ the brutality described by William Blake within industry’s ‘satanic’ mills, famines and bloody intercontinental warfare⁵⁹; and abroad, the imperial conquest of foreign land through superior warfare technology and resources,⁶⁰ the sanctimonious genocide of defeated populations,⁶¹ colonialists and missionaries racked with disease in pursuit of fantasies.⁶² For international legal theorists and historians, like Nathaniel Berman and Antony Anghie, the same international law that we typically hold out as the protector of cultural respect and to check political aggression was itself forged in the fires of colonial conquest,⁶³ far too savage and absolute to allow for any wishful reconciliatory redemption.⁶⁴ Here, this nightmarish awakening is not only that we recognize the horrors committed by and upon our fathers and grandfathers, nor that its legacy lingers on despite our best efforts of structural adjustment and ethical denunciation—the trauma that we are almost compelled to disavow is that this past is not simply to be shunned, but also exists as our most intimate, secret dream:

Colonialism is never the other, never the past, it is always with us … because it has made the world we live in, both in the ex-metropoles and the ex-colonies. Our culture, our economy, our very languages are imbued with the colonial past. With us, because trauma of destruction or of guilt never really leaves an individual or a culture. And finally, with us, because colonialism is not only the shame of the West, it’s violent, shadow side, but rather it also expressed some of Western culture’s highest ideals that even today we cherish. This is the real challenge… The horror and the dream.⁶⁵

The violence here carries an overt materialist content, its scandalous political ramifications (e.g., structurally sustained gross inequality, cultural imperialism/genocide, policing actions, and warfare) the very stuff that everyone from neo-colonial critics and human rights activists to global policy makers and bureaucrats seek to (often very self-consciously) struggle against on one level or another.⁶⁶ Yet, what we are also touching upon is a more insidious form of violence, a symbolic violence, which is both more elusive, and which actually enlists and assigns our own desires by telling us what can and cannot be said and accomplished.⁶⁷ In other words, the rules and historical manifestations of authority, behavior, and beliefs that we live by may very well be experienced as the taken for granted, axiomatic necessity of objective reality, but are in fact culturally arbitrary phenomena in that they have no privileged connection to some natural or transcendent/universal truth.⁶⁸ These circumscribed moments are thereby transmitted to us through both historical baggage (diachronically) and our everyday discourses (synchronically) as an almost unconscious background logic of understanding compelling us to act and speak not so much unwillingly (for it is exactly our inability to separate our knowledge and desires from these conditions) as unwittingly.⁶⁹ What makes it so difficult to locate these moments is that they appear immediately ‘naturalized’ through stylized acts of repetition that are reciprocated, and ultimately lead to the appearance of an essentially ontological core.⁷⁰ In short, our understanding of what we ought to do and the parameters we work within are aesthetically determined: less a matter of what actually exists, than how we perform and experience the various forms, images, tropes, perceptions, and sensibilities that we identify with international law.⁷¹

In this sense, the anxiety that repeatedly draws international lawyers to Grotius is an underlying feeling of being caught in a catch-22 of fears. On the one hand, international lawyers labor under the ‘anxiety of influence’, that our vision and projects cannot live up to the creative victories of our ancestors, that global governance has become far too complex and uncertain to imagine any truly new world order.⁷² On the other hand, even if such a possibility existed, the lessons of the past are not completely lost in the subconscious of the discipline, that any political order, whether it expresses itself as totalitarian or liberal, is dependent on some original (and maintained) condition of violent, exclusionary force. Tolerance, in this respect, is not so much a virtue or goal, as it is the condition of a particular situation of comfort or authority, the rationalization of how violence will be organized and directed once a system disclaims its propensity to violence. In response to these anxieties, international lawyers have sought Grotius to either ‘obscure the historically exclusionary origins of the Western liberal state’ by emphasizing his magnanimous advocacy of liberal tolerance and formal equality, or alternatively, decried his theory as self-serving justifications for empire, thereby eliciting a subtle polemic for an acceptance of the status quo one or two degrees to the left, some cautious politics of piecemeal reform and mutual distrust.

5 Conclusion: A Politics of Truth

This might be juxtaposed with the various calls of ‘radical democracy’ (e.g., Ernesto Laclau), or their legal equivalent, the ‘culture of formalism’ (e.g., Martti Koskenniemi). At its most appealing, the call for a ‘culture of formalism’ challenges the international legal community to rise above the ‘politics of the possible’ to embrace a higher standard, though like its American humanitarian rule of law counterpart, carries the tendency to recognize itself as a restraining, or gentle, civilizing force outside the auspices of power, and more specifically, war. Instead, what I am searching for here is something more akin to a ‘politics of truth’, which seems to occasionally manifest both within and outside of legal theory—in nineteenth century European political philosophy (Giuseppi Mazzini), in the nineteenth and twentieth century American pragmatic ‘can-do’ ethos (as drawn out by authors within international law, particularly Mark Janis and David Kennedy), in the liberation struggles in Latin America (Gustavo Gutierrez Merino) and anti-colonial struggles of the twentieth century (emphasized in legal work particularly by TWAIL authors), and in more recent years, within the philosophical writings of authors such as Alain Badiou and Alberto Toscano.

And yet, in the wake of what would otherwise look like false celebration or grim resignation, the words of Judge Weeramantry still carry a portion of hope. To remember Grotius is, for Weeramantry (and I hope for the rest of us), a ‘moment to recapture the spirit of inspiration … to struggle out of the limitations of the though-frame of [one’s] times and carve out new pathways… in the unchartered waters lying ahead…’⁷³ And so here, I would like to conclude by offering two brief suggestions for how we might seize upon this appeal and answer the Grotian tradition in a new light. First, rather than shy away from the partisan nature of Grotius’ convictions, we might instead accept them as the very conditions of any emancipatory politics.⁷⁴ No victory, no good, came to any group of humans without what was most often passionate and protracted struggle, usually with countless and unsung casualties. That there will be losers and excluded parties are not an unfortunate by-product of the political world, but the very purpose of struggle: to fight for some condition that will change the distribution and well-being of particular individuals and communities always comes as theft and sacrifice to others. To open up patents on necessary drugs to poor countries, for instance, will mean the loss of a particular form of property and profit for shareholders invested in the pharmaceutical industry. Let us say, so be it. As progressive international lawyers committed to a better world, let us leave the comforts of the condemnation of warfare and venture forward into some battle, whatever that might be.⁷⁵

Second, contemporary international lawyers sympathize with Grotius’ eclectic use of sources (e.g., nowadays under the rubric of inter-disciplinarity), but too often ‘appear both ashamed of their inability to propound doctrine in the imperious tone of tradition texts’ and ‘proud of having avoided the [methodological] difficulties plaguing each traditional scheme of authority’.⁷⁶ While international law should by no means lose sight of the lessons and (partial) victories against oppression (e.g., whether that was expressed as child labor, homophobia, racism, sexism, and so on), too often the condition of accepting any principle only when methodologically defensible leads to a retreat into some politics not simply of humility, but deferral.⁷⁷ In contrast, for Grotius, authoritative diversity was neither virtue nor vice, but simply a fact of life. To put this in a more contemporary register, any principle or truth is ultimately unanswerable according to any empirical or rational basis, but simply ‘evident’ to its adherents. Instead of remaining caught in the spurious infinity of negation that haunts the post-foundational landscape of politics and law, the memory of Grotius and his eclectic boldness directs international lawyers to proclaim a fidelity to a truth without apology.⁷⁸ The Grotian tradition calls us to shake off the Victorian pieties that shackle the emancipatory potential of our discipline so that we might return to what our ancestors understood: that to be part of the world in our times and to struggle for righteousness is to wager upon some current impossibility that seems against all empirical odds and against all reasonable hope. It is in this faith that I hope we can begin to more fully join together.