History shows that in transitional periods the relationship between political power, state and society, individual and state, as well as problems concerning human rights and freedoms, related to the development of both political movements and political theory, are re-interpreted. As a result, new interpretations and ideas are formed in the legal and political viewpoint of this epoch. Thus, in transitional times, when society faces the alternatives of its future, the role of individuals and their ideas becomes crucial. In fact, ideas are able to change the nature of politics, influencing the role of actors.
The Ideological Basis of The Peace of Westphalia
The Peace of Westphalia symbolizes the transformation of the system of political power based on the medieval Christian hierarchical structures to the horizontal system of territorial sovereign states. Such structural transformation of the political power, which was promoted by the Renaissance and the Reformation, resulted in profound transformation. These processes fostered further disintegration of Europe, religious division remained, and all the attempts to return to the system of pre-reformation period were failed. During the 17th century the concept of “Universal Monarchy” was still preserved in the political agenda of absolute monarchies, but now it is manifested not as a European superpower, but as the monarch’s dominating position over the thrones of more than one sovereign state.
In Europe, the transformation of medieval political culture was conditioned by the revival of Greco-Roman heritage, which was quite different from that of the Middle Ages, as well as by new geographic discoveries, when Europe began the transformation of the world making those new cultures to be subject to it. Due to the Reformation the church monopoly of truth and knowledge also collapsed. In Protestant countries, Latin, which is the universal language of medieval literature, education, religion and diplomacy, was replaced by national languages. Unlike the medieval world order, the Westphalian reflected a completely new reality. There was no supreme universal power here, and the major “regulator” of international relations became the principle of balance of powers, which has been developed by Guicciardini, Machiavelli, and Gentile, since the 15th century.
The ideological basis of the formation of modern states was given by the greatest jurists and political scientists of the time. Particularly, Jean Bodin developed the concept of “state sovereignty” in his book named “The Six Books of the Commonwealth” (Les six livres de la République, 1576), according to which “sovereignty is the absolute and perpetual power of the state over its citizens and subjects”. In his treatise “The Prince” (De Principatibus, 1532) Machiavelli substantiated the priority of state interest. The works of Hobbes (Leviathan, 1651) and Spinoza (Tractatus politicus, 1675) are also worth mentioning.
And particularly, fundamental principles of international law were systematized and developed by the works of the well-known Dutch political thinker, lawyer and statesman Hugo Grotius’s “The Rights of War and Peace” (De jure belli ac pacis, 1625) and “The Free Sea” (Mare Liberum, 1608). These works have outlined a new era in the history of ideas, creating a system of general principles and explaining the problems concerning the sovereign rulers, the peace of nations and common consensus. Grotius was one of those authors who shared his own experience and ideas with the international legal practice (During the Thirty Years’ War, he represented the Netherlands in the course of negotiations with Cardinal Richelieu, and then as the Swedish ambassador to France). Grotius is also “the father of contemporary international law”. As the author mentions, the main motive of his works is the discovery of the principle of justice in international relations, and the main idea is the fact that there are certain laws that are above the ones of individual states and are applicable in the regulation of interstate relations, as the criterion of justice determines how to freedom should be implemented.
Grotius as the Chief Architect of the New World Order
Grotius’s legal-political views are based on the natural law theory. For the first time he described the systematic theory of natural law, then he essentially transformed the traditions of subjects and Christian theology in consistent with the new political and legal conditions. The bourgeois nature is noticeable in the principles of Grotius’s natural law, and this was, of course, a shock to the theological theory of state and law.
Grotius defines the natural law as “the common sense of mankind”, and any action contradicting it, is considered to be either “morally disgraceful” or “morally essential”. According to Grotius, the formula of natural law is “the law, in the deep sense of the word” which means “to give others what they already own and to fulfill our obligations towards them” (The Rights of War and Peace, Prolegomena, X.).
According to Grotius, inner-state laws should promote the realization of right and justice. But the peculiarity of the right is that it implies an opportunity of enforcement if its norms are not observed voluntarily. This does not mean that the non-violent right ceases to exist.
The Origin of State and the Idea of Sovereignty
When exercising rights, the issue of using force is combined with the idea of state. The state imposes the act of constraint. However, Grotius objects to the provision that power creates the right. He explains the origins of state and the inner-state law via the natural aspiration of people to communicate, that is, via the contractual theory as a logical conclusion of natural law. To ensure mutual security people came to an agreement by signing a social alliance, which became the basis of the origin of the state. Thus, a civil power is set up. As a result of transition from “natural state to civil society” and state, the legal principle of justice is complemented by the political principle of benefit and expediency. In other words, people are consciously pursuing practical goals and interests when creating a state. He defines the state as “a perfect union of free people sealed for the sake of preserving law and common good”. (Ibid., Book 1, chap. 1, § XIV, 1)
Peter Pavel Remek writes the following about the above-mentioned: “Although Grotius uses the concept of a social contract between free men to explain the logical origin of the state, he does not mean thereby that the historic origin of contemporary states must be based on such a contract [i].
From the social point of view, state is the consensus of the majority against the minority, the union of the weak and the oppressed against the strong and powerful. Accepting the concept of social alliance, Grotius doesn’t consider people as bearers of sovereignty, in other words, he is against the recognition of the supremacy of the will of people over the will of monarchs. It is supposed that people had once possessed sovereignty but were deprived of it, when they voluntarily transferred the sovereignty to the people they chose.
In the history of Western European legal-political thought Boden was the first to form and prove the concept of sovereignty as an essential feature of the state’s supreme power: “Sovereignty is the absolute and perpetual power vested in a commonwealth. In other words, it is an absolute power, which is not bound by any law over the citizens”[ii]: The absolute power is the one given by the people without any restrictions and conditions. The power is considered to be permanent if it is based on its own laws and is not given for a certain period.
Grotius characterizes sovereignty as the main characteristic of the state. The state is to ensure the social calm, therefore it has the supreme right. However, civil power is considered to be supreme and sovereign in the state, if its actions are not controlled or subject to foreign power, cannot be banned by anyone except the power bearer[iii].
On the Forms of Government
Grotius accepts the existence of different forms of government, such as aristocratic, city-state, democratic Republic, etc. Moreover, the choice of this or that form of political system is not decisive because they are all natural and are conditioned by the nature of social contract. “People can choose any form of administration, as this or that form of administration should be evaluated from the perspective of realizing human will”.
The Dutch thinker pays special attention to the issue of regularity to resist the supreme power. His position was the following: So far as all people are deprived of their rights and freedoms by signing the agreement on the establishment of the state and civil power, they are deprived of their right to resist. However, in exceptional cases he considers citizens’ resistance to the violence of authorities possible, particularly if the violence threatens one’s life. Thus, the exceptional case, justifying the organization of resistance to the power, is the violation of human’s natural and fundamental right, that is, the right to life. It is worth mentioning that in this case Grotius elevated his observations from the level of the individual to the commonwealth. Citizens, Grotius continues, can enjoy the right especially when all the actions of the authority is directed to the destruction of the whole nation. Since, according to him, “the will to govern and the will to destroy cannot coexist in the same person” (Ibid., Book 1, chap. 4, § XI).
The New Interpretation of International Law
Grotius considers the right and justice, the legal regulation to be the basis of relations between peoples. “The right of nations” or “the international law” is created by establishing agreement between the states guided by the idea of common good, that is, not for the benefit of “every human community” taken as separate, but for the interests of “the entity of all such communities”. In international relations he denies the view that power determines everything. Perhaps, some of the researchers make some reservations concerning “the right of nations”. In particular, Roland Portman notes that Grotius, using the term “the right of nations” didn’t examine the question of the right between the states. He viewed the state as “a union of free people” which was a mere summation of individuals, without separate identity[iv], being under the individual power of the authorities. And Peter Pavel Remec considers Grotius’s term of “the right of nations” to be the right essentially between the leaders of the nations, and also between the groups of citizens or major individuals[v], with some reservations. Portman considers it to be a non-intergovernmental right.
Grotius’s views on war and peace are interesting. According to his conception neither the natural right, nor the nations’, nor the divine laws prohibit wars. However, wars are fair and unfair. A fair war (for self-defense, for the protection of one’s own territory, population and property) is the natural response to the offense committed by the invader. Unfair wars are first of all predatory wars.
Accepting the inevitable nature of the war, Grotius at the same time urges to observe certain rules as much as possible: to measure horrors and cruelty, to save women, children and old people, to show human behavior to the prisoners of war, peaceful citizens, to prevent from the destruction of property, etc.. The approval of the above mentioned and other rules was his response to the barbaric methods of military operations during the Thirty Years’ War. In addition, invaders are obliged to reimburse the damage caused by their actions and must be punished.
Grotius spreads these principles on neutral states too. So, states having neutral position in warfare should abstain from “cooperating with those, who are waging an unfair war, or with those who hinder the movement of the one who is waging a fair war… And in suspicious cases it is necessary to maintain equality towards the two sides of the war”.
Fair wars should also be waged wisely, as one should never forget that “wars are for the sake of peace” and that peace is “the ultimate goal of war” (Ibid., Book 1, chap. 1, § 1). Generally, the peacemaking pathos is typical for Grotius’s doctrine of war and peace.
Grotius’s political thought outlined a new era in the history of international relations creating a system of general principles and building a new international reality which replaced the medieval universal world conditioned by the hierarchy of the empire and the church. Grotius’s theory is based on the approach that is characterized as constructionist from modern point of view[vi]. He sought to show that in this new situation the approval of the supremacy of the law is driven by the states’ interests, since a community of certainly organized nations is needed to preserve their existence. States must have equal rights, even if they don’t have equal power to protect them. These principles have somehow been realized in the formation of European community. In international law, he is the founder of the so-called “Grotius” direction, that is, a direction combining the philosophical ideas of the school of natural law with the research of international legal practice. According to this concept, international relations should be based on the principles of reason, right, equality, cooperation, on the international common legal system created by the good will of sovereign states.
For more details on the havens of Grotian direction, read “Grotian Moment” Part 1, and “Grotian Moment”, Part 2.
[i]. Remec P.P., The Position of the Individual in International Law according to Grotius and Vattel, The Hague, Martinus Nijhoff, 1960, p. 74. [ii]. Six Books of the Commonwealth, Jean Bodin: http://www.yorku.ca/comninel/courses/3020pdf/six_books.pdf [iv]. Portman R., Legal Personality in International Law. Cambridge Studies in International and Comparative Law, New York, Cambridge University Press, 2010, p. 32. [v]. Remec P.P., The Position of the Individual in International Law according to Grotius and Vattel, pp. 72-74. [vi]. Եփրեմյան Տ., Կոնստրուկտիվիզմի ակունքներում. Հուգո Գրոթիուս, http://vemjournal.org/?p=2030
[i]. Remec P.P., The Position of the Individual in International Law according to Grotius and Vattel, The Hague, Martinus Nijhoff, 1960, p. 74.
[ii]. Six Books of the Commonwealth, Jean Bodin: http://www.yorku.ca/comninel/courses/3020pdf/six_books.pdf
[iv]. Portman R., Legal Personality in International Law. Cambridge Studies in International and Comparative Law, New York, Cambridge University Press, 2010, p. 32.
[v]. Remec P.P., The Position of the Individual in International Law according to Grotius and Vattel, pp. 72-74.
[vi]. Եփրեմյան Տ., Կոնստրուկտիվիզմի ակունքներում. Հուգո Գրոթիուս, http://vemjournal.org/?p=2030
Author: Anna Khachyan © All rights are reserved
Translator: Armine Poghosyan