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Tyumen State University
Faculty of History
International Relations Department
“The teaching of Hugo Gratius of war and peace.”
Done by Denis Brovka,
Student of group 984
Checked by Christopher Goldsmith
Introduction 3 Chapter I 4 Chapter II 7 Chapter III 12 Conclusion 15 Bibliography 16
Hugo Gratius, a scientist and a lawyer from Holland, lived from 1583
to 1645. In his famous treatise “The Three Books on the Right of War
and Peace”, published in 1625, he depicted the struggle of the Dutch
capital for freedom at the sea. He is considered to be the founder of the
bourgeois studies of the international law and is one of the
representatives of the big bourgeoisie as a scholar of law at an early stage
of its development during the dissolution of feudalism in Western Europe
and the first large revolt of bourgeoisie.
This book by Gratius is more or less a systematical report of the basic
theories of international law, which were common for that period of
evolution from feudalism to capitalism. It was for a long time one of the
most important books for diplomats.
According to his beliefs, Hugo was a representative of the period of
transformation from feudalist to bourgeois state. His ideas received wide
spread and founded the basement of further development of the
international law, because they expressed real conditions of development
and political demands of the newly-forming class of bourgeoisie to the
ruling feudal party. I must specially note the progressive character of
some of the Gratius’s ideas in the sphere of the international law that had
a strong influence to modern international relations. Hugo Gratius, being
a bourgeoisie theorist on its early stages, denied the opinion that force
makes all the decisions in the international relations. He thought that law
and justice should be number one in international relations…
But we must not forget that the progressiveness of his ideas was
inconsistent and limited by the narrow frameworks of the bourgeois law
views. It is necessary to note that modern bourgeois ideologists renounce
the principles promoted by the ancestors in 17 – 18 centuries when
bourgeoisie was fighting against feudalism.
Hugo Gratius was on of the representatives of the leading (in 17 – 18
centuries) school of common law and treaty theory of state origins. The
school expressed the basic demands of bourgeoisie in its struggle with
feudalism; its theoretical basement was outlook, turned out as a result of
the revolution in natural history, reformation, and a bundle of ideas, left
from humanism in 15 –16 centuries.
It must be noted here that although the school had a common
theoretical base it was not homogeneous. It had lots of trends, which
differed from one another by phases of bourgeoisie development, stages
of her struggle with feudalism, quantity of different class’s
representatives in a state, and differences in bourgeoisie itself, because
different groups had different opinions on implementing their demands.
These differences can be seen when answering the questions on practical
implementation of the ideas of common law, ex. Who is the bearer of
sovereignty: people or monarch, which form of government is the best
for human nature, etc.
The problem of the state origins – a theoretical question – had also
different answers. They all agreed that before state there was a so called
“natural condition”. But what was this “natural condition” was a point of
debates. For one of the theorists it was a realm of unlimited freedom,
wild anarchy, leading to war of “all against all” (Hobbes); for others – a
peaceful idealistic state of freedom and innocence, “Golden Age”
(Rousseau); others thought it was unlimited personal freedom (Loch).
For many preachers of this theory “natural condition” was a
philosophical dogma or, as Golbach said, fiction. But this fiction helped
ideologists of bourgeoisie to criticize pre-capitalistic social and political
regime and to prophecy the victory of bourgeoisie. “In this society… -
wrote Marx – an individual is free from natural bonds, etc., that in the
past made him belong to a certain limited human community.”
Theorists of natural law consider state as a result of a juridical act –
Treaty of the society, of people’s free will.
The idea of natural law and treaty state origins can be found in Greek
and Roman philosophy and works, and in the works of feudalism
scholars in middle ages. But in 17 – 18 centuries these ideas became
more developed with some peculiar features, because they lose
theological context common for medieval scholars, and naïve naturalism
of ancient ones, because some of them considered animals as subjects of
law. But the main thing is that a theory of international law of the 17 – 18
centuries had different class’ essence. It expressed strong demands of
bourgeoisie, struggling hard for on its way to power.
The views on the contents of the Treaty were also different. Hobbes
calls a treaty via people an act by which all population loses all natural
freedom and rights in monarch’s favour and permit him an unlimited
power upon them. Loch thought that an individual who enters this
society via treaty loses his rights only partly (right for self-help,
self-defense when something is threatening his natural rights), in favour
of the other part: private property and freedom. Golbach defined the
Treaty of the society as a bundle of conditions necessary for organizing
and saving society. Denny Didreau thought of the Treaty of the society a
bit differently. “People, – he wrote, – quickly understood that if they
continued using their freedom, their power, their independence… then
the situation of every single person would be even more miserable, than
that if he lived separately; they realized that every person has to sacrifice
a part of his natural independence and to submit to will, that would be
the will of the whole society and would be, so to say, common center and
a point of unification of all their wills and powers. That is the origin of
There is no need to say about theoretical unsoundness of this concept
of the school of natural law. Even in the 18 century some bourgeois
philosophers found the antihistorical essence of these views. For
example, Jum says that natural condition is a fiction of the philosophers.
State emerges not as a result of a treaty but historically. Some also said
that people could not invent a term “state”, not knowing the practice. The
first Russian law professor Semen Jefimovitch Desnitskiy abruptly
criticized “natural law” and mostly Pouffendorf. “The works of
Pouffendorf – he said – was unnecessary, because writing of states of
humankind that had never existed, is a very unworthy deed.”
It is important to show which natural conditions were the soil for such
an illusion of natural state and treaty state origins, and to show the role
and importance of this idea in the class struggle of that time.
Marx said that the individual who enters the society union via treaty,
as seen by theorists of the school of natural law, is a result of descended
feudal society forms and developed in the 16-century new productive
powers. A great mistake of natural law theorists was that in their opinion
individual has not developed historically, but set up by nature itself.
Features common for bourgeoisie were proclaimed as common for
But treaty of the society was regarded by many adepts of natural law
not as a historical fact but as a logic ground, hypothesis for explaining
the difference between state and natural condition, i.e. between state and
anarchy for explaining one or the other form of state, ex. monarchy
(Gratius), democratic republic (Rousseau). It must be added that in those
historical conditions the theory of the treaty of the society had
progressive meaning for struggle with feudal theories, ex. theocratic
concept of state origins and patrimonial theory, which viewed the state as
property of the monarch.
A statement about the dualism of law is common for the treaty theory.
It differentiates the natural and positive law, i.e. given by the legislation
of a state. Natural law is prior to society and state; positive law – to
creating a state.
This dualism in notions of law is also depraved feature in the theory
of natural law, because the metaphysical way of thinking, common for
bourgeois ideologists, was not able to explain the unsteadiness and
variety in the law.
For the ideologists of bourgeoisie it is common to consider law and
state as an expression of the people’s will. It is of course wrong, from or
point of view. But in those historical conditions of struggle against
feudalism and absolute monarchy, this illusion had certainly a
progressive sense, because with the help of this idea bourgeoisie was
achieving abolition of the system of privileges and setting up a
representative system in state system.
Hugo Gratius is one of the earliest bourgeoisie ideologists and a
representative of school of natural law. His views were formed at the
time when the process of formation of bourgeois state in Netherlands had
not finished yet, and the British one was only starting. It must be noted
that the struggle of the Dutch against Spanish king Phillip II made a great
influence on Gratius. The problems of international law, examined by
him were set up by the bloody 30-years war, competition between
Holland, England and Spain and their fighting for the leadership at the
It must be noted that in the system of Gratius’s views there is no such
political sharpness as is common for Rousseau or even for Loch. He
expresses the interests of such groups of bourgeoisie, which were able to
make a deal with feudalism. He is a monarchist according to his beliefs
and opposes the idea of people’s sovereignty. He also doesn’t want to
throw away religious world outlook.
Hugo Gratius differentiates law as natural and voluntarium. Natural
law according to him is a deed, which is considered morally disgraceful
or morally necessary, according to whether it contradicts the nature or
not; that’s why this deed is forbidden or allowed by the God himself, the
creator of the nature.” Natural law is “…so stable that cannot by changed
by God himself.” He also spreads the natural law to everything, which is
dependable from the human’s will, and also consequences, which flow
from the acts of the human’s will. Natural law sometimes depends on the
time. For example, the right to private property is ser up by the human’s
will and that’s why natural law prohibits the theft of it. That is, the theft
is prohibited by the natural law.
The common possession was natural until private property was
established. The realization of your right with the help of force was
common before setting up civil laws.
The law, set up by will, according to Hugo Gratius can be human or
godly law. In its turn, human law can be either internal law of a state or
human’s law in a narrower and at the same time broader meaning.
Internal law of the state flows from the civil power, ruling in a state.
Human’s law in a narrower meaning does not flow from it. As for
human’s law in a broader meaning, it is the law of peoples (jus gentium),
which has a power from the will of all living peoples or most of them.
Speaking of a law set up by God Gratius asserts that it flows right from
the God’s will.
Of course, Hugo Gratius according to his metaphysical outlook asserts
that no society is possible without a law. The law is not a result but the
prior event, flowing from the human nature. From the essence of law,
which is a desire to communication, flows a range of necessities: not to
touch not your own belongings, keep a promise, pay for inflicted
damage, etc. This antihistorical outlook on the essence of law and the
appearance of some of it aspects was common for those historical
conditions and was necessary for bourgeoisie as an ideological weapon
in a struggle against the feudal system for bourgeois law order.
Hugo Gratius defines the law into features and separates it into the
law of domination and the equality. In his book, mentioned above, he
says that a “law is a thing that doesn’t contradict justice. What
contradicts justice is against the nature of creatures who possess mind
and communication.” “Justice can be dualistic.
a) Justice is the relation between the equal (brothers, friends,
citizens and allies, etc.). This is a law of equality.
b) Justice is the relation between the dominant and submissive
(father and children, master and slave, God and people, etc.). This is a
law of dominance.”
From all this he excludes the law concerning individuals. It is a moral
quality common for personality, according to which it is possible to
possess something or to act in one way or another. This law is adjacent to
personality, although it is often connected with things. Law ability is a
law itself according to Hugo. This law is a power upon oneself (freedom)
and upon other people (father’s or master’s powers), property (complete
and incomplete), the right to demand, etc. Law ability is divided into
lower (personal use) and higher (adjacent to all humankind for the good).
So Hugo Gratius appears to have a division of law into natural and
voluntarium (positive), which is common systematic mistake for natural
law concept. It is also common for him to have metaphysical views on
the justice in relation between brothers, people. He sets in the same row
the father, master, king and God, calling them all dominants. That means
that Gratius does not differentiate economic, ideological and state
relations. But the essence of law, given by Hugo Gratius, is objectively
propagandizing the eternity of slavery. It is common for Hugo Gratius to
be a supporter of the monarchy and even more than that: in his views, the
medieval jurisprudence remains.
Although a state is according to definition an act of creative activity
and the best form of people’s unification, based on a treaty, i.e.
supposing the sovereignty of people, Gratius denies the fact that people
possess sovereignty. He does not agree that people’s will is higher than
the will of a monarch. Considering that people were once sovereign he is
sure they passed their sovereignty freely to the people they elected. So he
stands for medieval patrimonial theory, according to which the juridical
nature of the nature of the state’s power is not different from private
That’s why a crime of monarch should not lead to depriving of power,
just as a crime of a simple person in most cases does not lead to
depriving him of his property. State territory and state possessions is the
property of the monarch.
Those reactionary views of Hugo Gratius show that he was a
representative of such a group of bourgeoisie that did not make a deal
with feudal elements, which mostly determined the results of the Dutch
Treatise “The Three books on the right of war and peace” is dedicated
to, as seen from the name, problems of international public law. In it the
author looks at the problem of justice, sources of international law,
possibility of just war and types of just wars, of influence of the war to
juridical relations, which existed before, of rules of waging war, etc.
Gratius writes that his treatise is written in the defense of justice. This
view on justice is as metaphysical as view on state and law. The origins
of this metaphysical view are shown in the work F. Engels “To the living
problem”. Looking over the emerging of state and law, Engels writes that
at a certain stage of class society development complex legislation and a
class of professional lawyers emerges. Together with lawyers the study
of law emerges, which “in its later development compares juridical
systems of different peoples and different epochs, not as reflections of
economic relations but as self-explaining systems. This comparison finds
similarities. The lawyers call everything more or less similar in different
systems natural law. The scale that measures what is related to natural
law is operating through the most abstract expression of the law – justice.
Since then the main goal of development of the law, in the lawyers
opinion, is to draw human life conditions nearer to justice, or eternal
justice. But this justice always expresses only ideological expression of
existing economic relations from their conservative or revolutionary
point of view. The justice of Greeks and Romans was slavery, the justice
of bourgeoisie of 1789 demanded to overthrow feudalism, because it is
unjust. So views on eternal justice vary not only in different places or
times, but they also vary from person to person.”
So, the justice which Gratius speaks about is bourgeois justice. “Due
to the will of the Creator of nature, a human alone is helpless and
requires lots of things for a good living. That is why natural law includes
benefit. It was a reason of emerging of a state law. Both the community
and power emerged because of some benefit. As for international law or
the law of the peoples, it appeared according to custom and agreement of
peoples in favour of all the communities. The other source of it is nature
and holy laws.
According to Gratius, just as a criminal of internal state legislation
ruins his future well-being and the one of his descendants, the criminal of
the natural law ruins the basement of his future peace. Peoples who break
this rule, break the walls erected for their safety forever. There is nothing
solid beyond the law.
The main problem in “The Three books on the Right of War and
Peace” is the problem of the relation between the war and law, in other
words, can a war be fair and that’s why legal. Gratius argues with the
point that war and law can’t be compatible and that voice of law is
overridden by the sound of weapon. He dedicates a significant part of his
work to refutation of this, as he says, mistake. “During a war only civil
laws keep silence, because they are created for peace, but not the natural
ones, they are eternal.” He greatly believes in the existence of some
common law in the international relations, which works both for war and
peace. “It is necessary to start a war to keep justice, and to continue a
started war, keeping in the limits of law.
According to Gratius, war can be waged only against those who
cannot be made doing something in a legal order. Legal forms are
common for those who consider themselves weaker. For those who
consider themselves equal wars must be waged. “During a war one must
keep to the act of peace and one must start a war only intending to finish
it as fast as possible.
In the treatise, the war in a broad sense is defined as a state of struggle
with the force, as solving of controversial questions with the
implementation of force. This definition of war spreads to many types of
wars. Depending on the sides (subjects), taking part in a war, the force
can be private (self-defense by a person not possessing a state power),
public (state) or combined (on one hand – public, one the other - private).
In a narrower sense, war is an armed conflict between states. The right of
war is justice, but in a negative meaning: thing that does not contradict to
justice. “The first inducements of nature do not contradict it, even on the
contrary.” That’s the way in which he tries to prove it. Saving life and
limbs, saving belongings, useful for it – correspond to the first
inducements of nature. In other words, care of oneself does not contradict
to community life, until they break somebody else’s right. The force that
doesn’t break another’s right is legal. That means that, according to
1) The sources of wars are the passions of human body (desire to
2) Just war is possible, which deserves approval of natural and
Gratius defines two stages of just public war:
1) Solemn just war
2) Simply just war
“For the war to have solemn character, two conditions are required: it
must be waged by the will of highest rulers of the states, and certain
customs must be kept… Both of those are required, because any of them
is not enough without another.
Public war is not solemn; it can be free from those customs and
ceremonies; it can be waged against anyone by anyone’s authority. That
means that any person has a right to wage his own war. But as war may
cause danger for the whole state most legislatures forbid it. War can be
waged only by the highest authority.”
Neither Gratius, nor any other bourgeois scholars of international
relations and international law managed to find out the reasons of war
and the principle difference between just and unjust war. One of my
sources says that only Marxist theory managed it. According to Marxist’
point of view just war is not a predatory one but a war of liberation,
which has a goal of protecting the people of external attack or of freeing
colonies from the “oppression” of imperialism, etc. And unjust war is a
predatory war, which has a goal to conquer and slave the other state’s
people. But I must say that these views are out-of-date of course.
1 Huizinga J The waiting of the Middle Ages. New York: Doubleday & Company Inc 1956
2 Parry J H The Establishment of the Europian Hegemony: 1415-1715 New York: Harper & Row Publishers 1966
3 Гуго Гроций О праве войны и мира Москва 1948