Read THE SHIELD OF ACHILLES Online
Authors: Philip Bobbitt
THE SHIELD OF ACHILLES (87 page)
With such a mixture of principles, procedural rules, and jurisdictional allocations, it is hardly surprising that the “Westphalian settlement of 1648
was perceived as… a new constitution for the European state system…. [So it] struck the political actors of the day, as well as jurists and historians.”
20
In Book I's discussion of the development of the State, I dissented from the famous conclusion of the historian C. V. Wedgwood, who pronounced the Thirty Years' War “the outstanding example in European history of a meaningless conflict.”
21
Her conclusion is even less defensible with respect to the society of states and the Peace that followed the War. The extension of the maxim
cuius regio eius religio
imposed common restrictions on states, adumbrating the emergence of a new society of states characterized by their sovereign equality. At the same time, the notion that the ruler of a state had the right to determine the religion of that territory the state controlled enhanced the movement toward absolutism in the member states of this new society.
22
“[T]he Thirty Years War was, after all, fought over the juridical definition of the position of the States and the Emperor,”
23
and, one might add, “of the legal position of all the states of Europe vis-à-vis one another.” It is hard for us to recognize this from our current vantage point of cynicism about law and the prevailing view that law is a mere disguise for that power. This was not the view in early seventeenth century Europe, however, when law was the connecting bridge between politics and religion, and where the constitutional law of the Peace of Augsburg had set the terms of the geopolitical conflict. As Roelofsen reminds us, it was “only towards the end of the seventeenth century, with the famous ‘partition treaties' between William II and Louis XIV, that considerations [of legal title] were seriously weakened in favour of more power-political
droit de convenance
.”
24
The idea of a juridical order without a higher political or ecclesiastical authority is so novel, and so far-reaching, that it has given immortality to the name with which it is mainly associated, that of the seventeenth century lawyer Hugo Grotius. His
De Jure Belli ac Pacis
is one of the cardinal books of European history
25
and he was regarded in his lifetime, as he is today, as one of the leading intellectual figures of the Baroque period. Gus-tavus Adolphus took
De Jure Belli ac Pacis
with him on his campaigns, and claimed to have based the political structure he sought for Europe on Grotian ideas. In our time, Grotius's fame has had a revival, and there is a good deal of literature on the “Grotian Tradition” and even the “Grotian Moment”
26
—that moment at which a new world order is put into place. In the following section, we will review briefly Grotius's rather disheartening biography; his views on international law, of which most commentators, perhaps too simply, regard him as the father; and the importance of these ideas for construing the international constitution of the period, the treaties that made up the Peace of Westphalia.
THE INTERNATIONAL LAWYERS
Hugo Grotius
27
was born in Delft in 1583. His father was the chief city official of Delft, curator of the University at Leiden, and a close ally of the most dynamic Dutch political figure of the day, Johan van Oldenbarneveldt. Oldenbarneveldt was, at that time, Advocate for the States of Holland (which was the most important of the federal entities making up the United Provinces).
Grotius was a celebrated child prodigy: he wrote Latin elegies at the age of eight, entered the university at eleven, and is said to have converted his Catholic mother to Calvinism with irrefutable arguments when he was twelve. At fifteen he went with Oldenbarneveldt, now the grand pensionary of Holland, on a diplomatic mission to France where the king, Louis XIII, introduced the young Grotius as “the miracle of Holland.” On this visit to Paris, Grotius determined to study law at Orleans. In 1598, at the age of fifteen, he emerged with his doctorate and returned in 1599 to practice law in The Hague.
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 the 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.