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This essay argues that while natural law seems to form the
basis of Grotius’ international thought of law of nation and sovereignty, it is
seen as secondary to positivist laws and contractual arrangements out of
states’ will, due to the ambiguity in sources of law of nations and the
relative nature of natural law. The essay is divided into 2 parts. Part 1
compares natural law to other sources of law of nations proposed by Grotius and
finds it to play a superficial, if not hypocritical role. Part 2 argues that
the relativity of natural law undermines its normative strength and makes ‘law’
in the prescriptive sense marginal to Grotius’ ultimately pluralist thoughts.

Grotius derives natural law from what he sees as rational
and social human nature (Remec 1960), which makes people able to understand
self-evident moral principles. Thus natural law prescribes what is in
accordance with human nature of need for self-preservation and sociability.
Tuck (2001) identifies 2 fundamental natural law explicated by Grotius in De Indis:
the ‘law of inoffensiveness’ (not injuring others) and the ‘law of abstinence’
(not taking others’ possession’).

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The principles in natural law do seem important in Grotius’
idea of law of nations, illustrated in the theory of just war and principle of
freedom of the sea. Natural law is an important tenet of Grotius’ Just War
theory; he invokes Cicero’s tradition and cites ‘self-preservation’ as the
‘first principle of nature’ (Grotius 1625/2012), and sees it as compatible with
war. Human sociability further means that while the use of force that attempts
an injury is illegitimate, war is just for the purpose of self-defence. As
such, the dual operation of ‘self- preservation’ and ‘inoffensiveness’ forms
the core of the Just War theory, that defensive war is justified. Natural law
is also invoked in his principle of freedom of sea; given the idea of
sociability, only things capable both of possession and of use can be appropriated.
Hence unlike land, given the fluid nature of the sea, it should be open for
navigation (Grotius 1609/2004). Murphy (1982) points out the importance of
natural law in forming the basis of law of nations by looking at the context of
the shift from feudalism to nationalism and the aftermath of Peace of
Westphalia in Europe. Natural law is seen as enabling Grotius’ vision of
universal jurisprudence in the absence of universal jurisdiction; in the words
of the English School, natural law invokes deeper standards and principles as
an institution of the international society in the absence of overarching
authority.

However, the importance of natural law in Grotius’
conception of law of nations should not be overstated, as Grotius sees law of
nations as coming from many sources, including volitional human laws. For
instance, he justifies compatibility of war with justice not just on the ground
of ‘inoffensiveness’, but also by arguing that it is not prohibited by existing
customary law. In fact, he sets out certain formality as criteria of a just
war, such as ‘being waged under sovereign authority’ (Grotius 1625/2012),
essentially basing normativity on existing state practices. As Wight et al.
(1991) and Murphy (1982) points out, the rationalists combine the 2 traditions
of naturalist and positivist interpretation of law of nation; law of nations is
the body of volitional human law consistent with natural law. Murphy (1982) argues
that the necessity for invoking positive human law is due to the fragility of
human sociability; Grotius is not entirely optimistic about human nature, and
thinks that humans do have the tendency to injure others our of self-interest.
This means that law of nations need to be built on existing norms and
reinforced by institutions, as opposed to Pufendorf’s view that leagues and
treaties are unnecessary as ‘obligation of natural law’ alone guarantees compliance
(Murphy 1982). In sum, Grotius’ less-than- optimistic view of human nature necessitates
legal activism and renders natural law only one of the potential sources of law
of nations.

More importantly, Grotius not only sees natural law as only
one source of international jurisprudence, but also seems to prioritise
positive law over it when tension arises between the two. While Bull (1966), in
comparing the just war theory of Grotius and Oppenheimer, claims that Grotius
prioritises natural law amongst other sources of law of nations, he barely offers
any evidence, and simply relies upon a stylized idea of the ‘Grotian
tradition’. Keene (2006) argues that there has been a common misread of Grotius
in placing him inside the natural law tradition of Vitoria and Pufendorf;
Murphy (1982) was wrong in linking Grotius to the Peace of Westphalia and seeing
‘eclecticism’ in Grotius avoiding the dichotomy between natural and positivist
law as an attempt to construct a ‘society’ in response to the rise of the
anarchical modern state system, since De Jure Belli ac Pacis was written in
1625, much earlier than the Peace of Westphalia in 1948 (Keene 2006). To
adjudicate between the claims of Bull (1966) and Keene (2006), this essay
prefers Keene’s interpretation by looking at the superficiality of natural law
when Grotius applied it to events happening in his time. De Pauw (1965) notes
that while in Mare Liberum, Grotius insisted that coastal water cannot be
delimited, in his later work De Jure Belli ac Pacis he permitted that. De Pauw (1965)
attributes this change to Grotius’ role as a Dutch diplomat and jurists, and
the development in his time; while in early 17 th Century no definitive
decision was made regarding the fisheries along the British coast, by 1618 a
Dutch delegation had conceded to British claims an forbidden their fisherman
from approaching the English coast. That Grotius was ready to compromise on the
principles of natural law given practical constraints shows his prioritisation
customs and norms, and may even lead to the speculation that his use of natural
law was hypocritical, only to take advantage of the ambiguity of existing
positivist 

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