INTRODUCTION
Homer's epic the Iliad was the subject of Simone Weil's reflections on violence, writing as she did in the summer and autumn of 1940, after the fall of France to the Nazis: “The true hero, the true subject, the center of the Iliad is force.” So begins her essay, “The Iliad, or the Poem of Force.” For Weil, force is that “x that turns anybody who is subjected to it into a thing.” Force is pitiless: all fear it; all bow to it. Weil believed that the only justice of war is that Ares “kills those who kill.” As she points to the similes of the Iliad, which liken warriors to fire, flood, wind, wild beasts, frightened animals, trees, water, sand, “to anything in nature that is set into motion by the violence of external forces,” Weil asserts that battles demand that warriors lose their humanity; indeed, in battle they become pure “momentum.”Footnote 1 By accepting the wantonness of war, Weil renders human misery the tragic precondition against which she might set the Christian Gospels’ teaching of justice and love.
If Weil's bleak response to the Iliad was prompted by the twentieth-century destruction of Europe, Hugo Grotius (1583–1645) wrote his foundational treatise on the laws of war, The Rights of War and Peace (De Iure Belli ac Pacis 1625)Footnote 2 as witness to other disasters promulgated in and by Europe on the globe. For the Dutchman, the fall of Troy was the human disaster of antiquity, but it had also spawned profound thinking and imagining on war, as it had done for so many early modern writers.Footnote 3 Unlike Weil, Grotius took the view that, as he put it, “there are laws of war just as there are laws of peace.”Footnote 4 Purposing his work for “the interest of Mankind,” Grotius insisted that there can be a natural justice.Footnote 5 Yet this is not simply a philosophical starting point; it is one based upon the evidence of social experience as recounted in literature. Early in his Prolegomena, he warrants that claim with a quotation from a play by Euripides, and the specific voice he cites is that of a woman held captive. The lines come from Euripides's play depicting the aftermath of Troy's fall, Helen—notably, a play that condemns war and one in which members of different nationalities are in conflict about morality. And it is striking that he chooses the voice of Helen, that most hated of women, to warrant a claim about the existence of natural justice. Surely an odd character with which to begin, but it is her speech situation that interests Grotius, not solely her words. Helen is being forced into a marriage with her captor, and pleads as a foreign captive. Yet there she is, at the start, or near the start, of Grotius's magisterial treatise on the laws of war. Grotius writes that Euripides honors the laws of mutual relations among states, and cites what Helen says to the Egyptian priestess:
Chiding the priest for not knowing the supposed universality of justice, Helen adopts the only form of free speech allowed a captive, that of supplication. There's surely an irony here: Helen is all too memorable as the prime cause of war in the Iliad; even here, she is working a scheme.Footnote 7 Set seven years after the Trojan War's end, Helen is not a tragedy but rather, with its mixed tone, a Skeptical rewriting of the origins and outcomes of that war.
Indeed, echoing throughout Grotius's three books on the laws of war is the legacy of Troy, not only its valiant heroes and its record of human suffering but also precepts learned from its aftermath. This is the Troy not of the Iliad but that mediated by Greek and Roman drama, classical philosophy, Roman jurisprudence, and biblical history. While Helen's supplication fails spectacularly to earn freedom from foreign captivity, Grotius nevertheless takes Helen's words at face value in his Prolegomena, as if to say that not only does a miscreant woman like Helen possess reason, but also that such a Helen has a claim on justice. Her position as a faithless wife or a captive in war, indeed, as a slave, does not remove her moral personhood. Even from her lowly position, Helen casts shame on those who are ignorant of justice.Footnote 8 Shame and reproach recognize an understanding of one's obligations to others. Given Helen's equivocal status, the point Grotius makes this early in De Iure Belli is that, whoever the speaker, and whatever their position relative to their personal behavior or conditions of freedom or unfreedom, even despite their nationality, verily, arguments about justice cross enemy lines. The standard national oppositions (usually, in Greek drama, Persia/Sparta versus Athens) do not apply. In Grotius's collection of excerpts from Greek drama published almost contemporaneously with De Iure Belli, his Excerpta (1626), this passage from Helen is translated into Latin and given a marginal index annotation: “Jurisprudentia.”Footnote 9
What on earth could the morally dubious Helen contribute to jurisprudence? Helen is, as it were, a synecdoche. This paper ponders how Hugo Grotius, an eminent historian and practitioner of law, jurisprudence, and theology, put imaginative literature, specifically the classical drama, to work, particularly with reference to treatment of enemies, captives, and hostages: all categories of persons highly interesting to historians of slavery and human rights. The paper locates the jurist's thought in the world of the emerging institutions of colonialism and slavery by explaining how he learned to think with the classics. There are two major claims: first, that to understand what Grotius was doing in his work demands engagement with his classical humanism—that is, with his literary entanglement in Greek and Roman imaginative literature. I am at pains to show how Grotius was not only a reader of the classics but was also part of the humanist philological enterprise of producing them for a reading public through print. Indeed, his allusions to his literary sources ought not be seen simply as ornamental embellishments but rather as forming an important quality of his work. Through them, Grotius represents participation in a dramatic conversation, enacting a formal principle of equity. Indeed, this humanist hermeneutic method distinguishes Grotius from other early modern political theorists such as Thomas Hobbes, whose geometric model was a scientific method.Footnote 10
The second claim is that although Grotius did not challenge the existence of slavery in his own day, he nonetheless refrained from applying those distinctions that had posited natural difference between peoples in the ancient world, and that would come to justify racialized slavery. As is well known, Grotius was among the earliest to insist upon a boldly secular framework for laws of war in early modernity, a point worth highlighting when European wars of religion were claiming a devastation of blood inside and outside Europe and when the concept of holy war or Christian violence against non-Christians was commonly taken as a just ground of war, colonial conquest, and slavery.Footnote 11 And while the ancient world was one without Christianity, it nonetheless parsed humans into ethnocentric categories—namely, civilized and barbarian. Significantly, Grotius resisted this duality, voiding the idea that some groups or races were naturally inferior and, therefore, merited slavery. Slaves were determined by status—that is, by laws, not by nature. In refusing an ethnic identification or natural superiority of civilized against barbarian, he thus did not clear a path to Enlightenment discourses of race and political ecology, founded as they were on ethnographic distinctions between civilized and savage. Nonetheless, even with a vision of a common humanity and a Stoical cosmopolitanism, Grotius did not challenge the morality of slavery in De Iure Belli; indeed, Grotius refrained from taking a moral stand against contemporary practices of slavery and the forms of unfreedom his work legitimated. Recent scholarship has reversed the cheery portrait of Grotius as the so-called father of international law to show just how formative Grotius's views were in the erection of a system of global, colonial slavery and Dutch imperialism.Footnote 12 As John Cairns argues, “What Grotius provided in De Iure Belli ac Pacis was an ideological support for the institution of slavery that was becoming important to the economies of the maritime colonial powers.”Footnote 13 Yet, by recovering the philological and humanist aspects of his thought, I show that there is not a straight line from Grotius to forms of racialized slavery as arose in later tradition, and with whose legacy the modern humanities disciplines are reckoning, albeit belatedly. Working from the resources of classical literature, it is shown here that Grotius did not introduce a wholly, distinctively new form of reasoning about humanity, and situating his thought within a Northern humanist literary milieu brings complex and important pieces from the ancient world to the story of slavery in modernity. Through close, intertextual readings Grotius mined empirical and philosophical resources from the deep past in order to construct solutions to newly global contexts. Thus, his Renaissance methods were a ground for his philosophical work.
THINKING WITH THE CLASSICS
Historians of international law seem little interested in Grotius's literary investments and, in turn, the most widely used modern translation of De Iure Belli has stripped the majority of his literary allusions from view.Footnote 14 Commenting on his “exhibitionist learning,” and “indiscriminate and confusing eclecticism in the use of sources,” the international theorist Hersh Lauterpacht considers Grotius's literary citations as “defects of method” and corrects this problem by distilling the thought of the jurist into a series of abstract headings.Footnote 15 While admiring the way Grotius draws upon the wisdom of the ages, Leiden law professor Benjamin Marius Telders berates his “surplusage” and “prolix irrelevancies,” indeed, castigating the whole work as “bowed down by a plethora of literary, philosophical, theological, and municipal baggage.” Voltaire, similarly, dismisses him for his pedantry.Footnote 16 Those few political theorists who have taken note of Grotius's massive scholarship and source hunting characterize these as typical of their age and representing an outdated “way of thinking.”Footnote 17 Literature and philological study have lost out to abstractions of political theory and, as a result, the distinctive contribution of imaginative literature, epic, and drama to the understanding of Grotius has been missed.Footnote 18 The approach here considers the resources of literature as themselves affording modes of argument. Indeed, a close reading of Grotius's engagement with literary classics has been hampered by the translations commonly taught or excerpted that remove these aspects as incidental or extraneous. But that is itself a matter worth examining. What is it about the kind of thinking that literary citation invited that seems extraneous to the supposedly more serious matter of political theory? Especially at a time when the texts of classical literature were common, accessible across national lines to the educated elites composing and consuming legal, political, and theoretical texts across early modern Europe, there is a case for exploring the ways that literature contributed to the construction of modes of thought.Footnote 19 Upon restoring his industrious literary work—his classical philology, translation, compilation, and imitation—to view, it can be seen how Grotius's engagements with classical literature help to illuminate key issues in his jurisprudential thought as regards foreigners and slaves, and as regards the treatment of those held captive through war.
Scholarship in the discipline of literature has, on the other hand, insisted upon the ethical valence of Grotius's poetry and drama, what Arthur Eyffinger has called his “cultural agenda” of Stoic ethics.Footnote 20 For the most part, Grotius's poetry and drama have been studied by scholars within the Dutch literary tradition, with his early poetic works noted as models for John Milton's handling of a biblical theme in Paradise Lost.Footnote 21 Nonetheless, Grotius has been missing from those cultural histories of Renaissance humanism that have excavated the heroism (and also the petty rivalries and grubby fingers) of those early modern intellectuals, editors, commentators, text excavators, and innovative European printers who conducted “commerce with the classics.”Footnote 22 The approach here is indebted to that work in the history of reading and text making. Once we see how the Dutchman brought questions from classical imaginative literature to his thinking about early international affairs, we can understand this neglected part of his oeuvre as a resource in the long history of political thought. Grotius was not reading for examples, or disguising political critique through allegorical reading, but was reading philosophically, investigating those moral principles that overrode national, confessional, and even temporal identities. Through traffic with the classics, he asserted a form of common humanity that differed from Enlightenment thought on difference, and defined a system of international relations apart from Christianity.
Grotius shaped his thought in De Iure Belli through encounter with classical literature. He faced up to its odd tonalities, its representations of those facing atrocity; its voicing the aftermath of rape, violation, and exile; and its portrayal of cultures in conflict: a literature offering speech to foreigners, women, and the despised or enslaved, where malevolence could be justified and where there was no redemption. Stoicism was a deep well of his thought, and to that philosophical outlook must be added the literary provisions from Greek drama, in particular those plays concerned with the aftermath of Troy. These, as will be shown, were not only a quarry for his ideas about universal social obligation but also were a representation of situated utterance. Helen's appeal to the priestess as supplicant is an instance of a kind of “powerful powerlessness,” as Whittington has characterized the gesture of supplication, an interpersonal encounter that reverses the deferential structures of dominance and that also demands participation in response.Footnote 23 Grotius understood that theater's formal ethic of multivocality presented a situation for observing the conditions for, and performance of, justice conceived as a fundamental aspect of sociability. Indeed, with his notion of sociability, Grotius looks to classical literature, and to Euripidean tragedy in particular, as a means of attaining distance from the potential solipsism of individual perspective and of voiding its political correlate of pure self-interest. This is a political view of tragedy. I follow the thought of the late, brilliant political theorist Peter Euben, who insisted on the connection between the political resource of Athenian democracy and the culture of tragic theatrical performance.Footnote 24 That dramatic confrontation was an essential component of Grotius's vision of sociality. By staging equity, reckoning with others’ perspectives, and including the voices of the losers of battle or victimized captives, among other things, drama opened the potential for reversibility in positions of conqueror and vanquished. As in the Helen passage that inaugurates De Iure Belli, shame or modesty also evoke that aspect of forbearance, self-restraint, and moderation: not simply personal emotions, but a provision of purported, and common, humanity. This sense of dignity is not a Christian concept of sin or guilt, but a sociable affect, an opportunity to observe oneself as among others, even to create the kind of ironic distance invited by the mode of literature.
GROTIUS: TRANSLATOR AND EDITOR
It was, of course, an early modern European habit to think with the classics, especially as a foil for contemporary comment and means of evading censorship for extreme ideas; so, too, was it essential to a habit of commonplacing.Footnote 25 Thus, Greek tragedy and Roman Stoic philosophy were in the cogs of the jurist's thinking. During his liberal arts education at Leiden, Grotius had built up a substantial collection of Greek and Roman authors. His copy of Seneca's Tragoediae was an inexpensive contemporary edition purchased for ten stivers, as he mentioned in a letter to Daniel Heinsius (1580–1655) in 1610.Footnote 26 It was well used and well quoted in his De Iure Belli. Indeed, Grotius's Netherlands had for two generations been a center for international printing and the study of classical authors. In Leiden in 1580, Louis Elzevir put out a duodecimo series of classical authors, building up a strong tradition of classical scholarship.Footnote 27 Leiden also produced the translator Wilhelm Canter (1542–75), a specialist in Greek textual criticism, who brought out editions of the three Greek tragedians and also edited the editio princeps of the Eclogae of Stobaeus for the Plantin Press; his edition of Euripides was printed by Plantin in 1571. A second generation of humanists continued these traditions: Leiden was home to the great philologist, Neo-Stoic Justius Lipsius (1547–1606), as well as to G. J. Vossius (1577–1649), professor of rhetoric, and Joseph Scaliger (1540–1609), chair of history, who had written a commentary on Euripidean tragedy and who was Grotius's teacher.Footnote 28 And Dutch scholarship maintained a high level in the seventeenth century with Daniel Heinsius, another protégé of Scaliger and Vossius, forming part of Grotius's circle.Footnote 29
Grotius was a poet of war before he became a great jurisprudential thinker. Indeed, in his early poems Grotius celebrated Prince Maurice of Orange who liberated the Seven Provinces from Spain. Grotius lauded Maurice variously in his poetry: his victories, in “Epigrammata de rebus gestis ductu Principis Mauritii”; his scientific interests, in “Mathematica Principis Mauritii”; and his statesmanship, in “De Patria,” where the prince was praised for his respect for the law and his mild exercise of power.Footnote 30 More ambitious literary work was to come. Grotius took on the project of editing and annotating an edition of Lucan's De bello civili (Pharsalia), an epic poem composed during the tyrannical reign of Nero retelling the civil wars and the death of the Roman republic and the emperors who followed, which he published in 1614.Footnote 31 Though criticized by Quintilian and, long after him, Joseph Scaliger, for being more oratorical than poetic,Footnote 32 Lucan's ten-book opus was a Renaissance thought-generator for questions of legitimacy, force, and right of conquest. Writers including Christopher Marlowe, Henry Parker, and Samuel Daniel would try their hands at translating this work which was, astonishingly, a resource for both republican and anti-republican thought.Footnote 33 It was said that Grotius carried Lucan around in his pocket.Footnote 34 Throughout Grotius's De Iure Belli, there are many mentions of Lucan; for instance, in considering why men would go to war in the first place, a long, beautiful quotation from Pharsalia is supplied that indicts luxury as a cause.Footnote 35 When Caesar prompts safety only for his own side Grotius expands the claim to include all humanity, citing lines from Pharsalia, book 7: “But we must understand by the word cives not the inhabitants of this or that country [non huius aut illius regionis], but all those who are members of that great state, which comprehends all mankind [ex humano genere constatis cives].”Footnote 36 In dialogue with Caesar, through Lucan, Grotius professes an early form of cosmopolitan thought, one that imposes a moral universalism upon heterogeneity. All this Lucan finds its way into De Iure Belli. Not simply oratorical exercises, then, Grotius's poetic engagements with classical sources were a serious investigation of war and its causes, motives, and realities.
In his 1614 published edition, Grotius presented a clean, re-edited Latin text of the ten books of Lucan's poem, with new textual and philological notes, along with a detailed index of topics. In his annotations it can be seen how Grotius pondered ethics and warfare, thoughts that would emerge more fully in De Iure Belli over a decade later. For instance, his note on book 1, line 2 of Lucan's Pharsalia takes up the matter of just war: “Of war I sing, war worse than civil . . . and of the legality conferred on crime.”Footnote 37 Grotius focuses attention on what is meant by the “legality conferred on crime” (“Iusque datum sceleri”), there offering a paraphrase—“licence made out of crime. In one name were wrapped together many injustices”—and in a note giving relevant sententiae from Seneca and Cyprianus.Footnote 38 This is a philosophical, not a philological note, a consideration of the ways war is justified or distinguished from murder—it is from Seneca that he derives the distinction between public and private warfare.Footnote 39 He comments on Caesar's unrestrained violence during his march through unconquered territory,Footnote 40 denounces spoil as an incitement to war,Footnote 41 commends refraining from taking spoil,Footnote 42 and distinguishes who it is lawful, and who not lawful, to conscript.Footnote 43 Further, in these notes he decides what is necessary and what is legalFootnote 44 and what is meant by fighting for a just cause, which Grotius calls “iustum bellum” in his annotations;Footnote 45 urges victory not solely for one man's cause, but for “all humanity” (“generis humani”);Footnote 46 slates the dangers of empire;Footnote 47 and comments on the origin of the law of nature.Footnote 48 All these, among many others, are topics arising in De Iure Belli.Footnote 49 While his modern biographer may be puzzled that Grotius “was able to summon up the concentration, leisure and energy for it in such turbulent times,”Footnote 50 these notes make clear that Grotius read and annotated Lucan not simply for leisure, strictly speaking, but in order to understand the habits and justice of acts in war and causes of war. He read in his commitment to humanist learning in the widest sense—that is, as an ethical discipline and a wisdom cultivated from ancient works in which habits of thought and social observation could ground political action. Through Lucan, as in his political thought, Grotius sought to understand constitutional principle as it confronted force.
All the while he was in the state service to the republic, then, as jurist, moralist, historian, theologian, politician, and ambassador, Grotius was a prolific poet, philologist, dramatist, and editor of imaginative literature. His literary works punctuate his employment writing: Adamus Exul (1601) and Christus Patiens (1608) were coextant with the creations of De Jure Praedae (1604/06) and Mare Liberum (1609); soon to follow was his edition of Lucan's Pharsalia (1614). After being sentenced to life imprisonment in the wake of a Calvinist coup d’état in 1618, he was incarcerated in the fortress of Loevestein, from which he escaped in 1621, hidden in a chest of books large enough for a man because of the prodigious number of books he had in his possession there.Footnote 51 Indeed, erudition and classical engagement had been his activities while incarcerated. An inventory of thirty-one volumes the Dutchman requested be sent from the shelves of his library in Rotterdam to Loevestein Castle reveals his reading preferences at the time: legal texts and the Greek and Roman classics.Footnote 52 Borrowing books from his friends, and with his own, it was in prison that Grotius began preparing works I will consider below: his Stobaeus edition (1623), selected speeches and dialogue from classical Greek drama, his Excerpta ex Tragoediis et Comoediis Graecis (1626), as well as a Latin verse translation of Euripides's Phoenician Women (1630).Footnote 53 Indeed, it was the constant flow of books in and out of the castle that provided the means for his escape. His reading continued for the rest of his career. Taking his exile in Paris, he was able to make use of the great private library of De Thou, of which it was said at the time, “one who has not seen the library of De Thou has not seen Paris,” and there he began to write De Iure Belli in 1623, a work published in the first instance in 1625.Footnote 54 While he was preparing De Iure Belli he was simultaneously preparing his Excerpta and Euripides's Phoenician Women, begun in Loevestein, as well as his notes on Seneca. After this period of imprisonment, exile, and poverty, Grotius was appointed ambassador of Sweden to France in 1634, from which position he worked to negotiate a treaty for the end of the Thirty Years’ War before his death following a shipwreck in 1645.
GROTIUS'S EURIPIDEAN WORK: FROM PHILOLOGY TO PHILOSOPHY
In his magisterial recent biography, Henk Nellen comments that Grotius's literary endeavors were “merely incidental” to his major project of finding work in Hamburg after his escape and preparing the case for his return to Holland.Footnote 55 Yet there is more to it than this. If Lucan helped Grotius think about war, Euripides spoke for his personal sufferings. In a letter to a friend from exile in 1623, for example, he quoted words taken from Euripides's Phoenician Women to illustrate that the heaviest burden for an exile was the loss of freedom to speak.Footnote 56 From that play, he alluded to the interchange between Jocasta and the banished Polynices, in which the mother asks, “What is it like to be deprived of your country? Is it a great calamity?” Polynices answers, “The greatest: the reality far surpasses the description.” That's not enough for Jocasta, and she pushes him again, until finally he answers, “One thing is most important: no free speech [παρρησίαν],” to which Jocasta agrees, “A slave's lot this, not saying what you think.” Agreeing, Polynices responds: “You must endure the follies of your ruler.”Footnote 57 This must have been a comfort to Grotius after his fall. But it was something more. Euripides, first to use the term parrhesia (boldness of speech), was known for his representation of freedom of speech.Footnote 58 This freedom of speech, so beloved of the Athenians, is translated into the language of liberty. Grotius renders the Greek as: “More importantly, there is no liberty of speech [loquendi nulla libertas adest] here.”Footnote 59
Not simply “incidental work” then, Euripides and the Greek dramatists were valuable for reasons other than personal ones and beyond their strict application in scholarship and philology. Euripides, Erasmus's favorite, hailed by Aristotle as “the most tragic of the poets,”Footnote 60 was first published in 1495 and, among the Greek playwrights, had the highest number of Greek and Latin editions printed before 1600.Footnote 61 For his rhetorical ornamentation and his morality, Euripides was the subject of a series of lectures by Melanchthon from the 1530s to 1560, incorporated into the editions of his student William Xylander.Footnote 62 While in prison, Grotius took up the vogue and translated Euripides's play The Phoenecian Women into Latin, publishing it in 1630. He also translated into Latin verse the plays Iphigenia in Tauris and The Suppliant Women, believing Euripides the best of the Greek tragedians.Footnote 63 His was not the humanism of the heroic edition-making or allegorizing sort, as he avoided the textual, historical, and philological cruces that had possessed warring humanists of the previous generation. Rather, Grotius edited as a poet and statesman; he thoughtfully curated the classics for moral purpose, as had done Justus Lipsius, deploying those aspects of antiquity that could help the current situation; as Lipsius had written, “I made philology into philosophy.”Footnote 64
In his introductory note to his Latin translation of Phoenician Women, Grotius claimed not only that it was the best play of the best classical dramatist, but also that its greatness was due to the theme of justice. He observed that Cicero had quoted lines from the play on the topic of injustice in Of Duties. As Grotius name-checks Cicero in his prolegomena to Phoenician Women, he is drawn to those classical literary tyrants who overturned justice: Eteocles, Creon, Oedipus. Eteocles was singularly unjust for arguing against justice on the ground of necessity. Cicero had cited Eteocles's lines from EuripidesFootnote 65 in On Duties (3.82), where he also cited Phoenician Women (524–25): “If justice must be violated for sovereignty's sake, it must be violated; you may indulge your scruples elsewhere,” adding dryly, “He [Caesar] deserved to die for having exempted the one thing that is the most criminal of all.”Footnote 66 Grotius takes the meaning of these lines a little differently from Cicero, however. Both in his Latin translation of the Euripides play and in the excerpted commonplaces published in 1626, Grotius replaces Cicero's “ius” with “iura,” making what was a grammatical singular into a plural (“Nam iura si violanda, regni gratia / Violanda, pietas caeterum vitae regat”). By taking “ius” to mean “the laws” (“If the laws must be violated”),Footnote 67 Grotius retreats from the higher claims of justice or the abstract meaning of injustice and turns to the laws of humans (“iura”). In the Greek of Euripides, the word is injustice (ἀδικεῖν).Footnote 68 Grotius forges a political commentary on tyrants as breakers of laws. Indeed, in these chains of association and layered commentary may be seen the shaping of the jurist's thought, sculpted through his interpretation of Cicero's reading of the works of Euripides. If annotation is conversation, as Jessica Wolfe has asserted, then Grotius was in true conversation with Euripides and Cicero as he thought through distinctions between abstract principles justice and human laws: issues of the conditions of speech, distinctions between right (ius) and laws, and between justice and the laws of peoples (ius gentium).Footnote 69
With great industry, then, the Dutchman extended and refined the legacies of the Renaissance philologists and text hunters. He saw through the press the Stobaeus anthology Dicta Poetarum quae apud Ioannem Stobaeum Exstant (Paris, 1623) which was the first large body of Euripidean fragments to be printed. For that, Grotius worked with an assortment of materials from the hands of great philologists: Conrad Gesner's Stobaeus (1543), collections of Dirk Canter (1545–1617), emendations of J. J. Scaliger (1540–1609), and supplements of A. Schott (1552–1629).Footnote 70 In 1626, Grotius brought out his own prison work, a collection of sententiae from classical tragedies and comedies, Excerpta ex Tragoediis et Comoediis Graecis, tum quae Exstant, tum quae Perierunt (Paris, 1626): 1,006 pages of extracts in folio, arranged by author and play, plus an index and an alphabetical list of sources, with commonplacing topics sprinkled around in the margins. The Excerpta represent Grotius's own selection from his edition of Stobaeus.Footnote 71 Ordered with an eye to their application, these excerpts and the topics printed in the margins on the fragments reveal a kind of authorial intention. These were not merely the quarries for eloquent illustrations and sententiae, but rather also give evidence for the shaping of his political ideas.
From the printed marginal points in his Excerpta can be distilled the topics Grotius was finding in his authors that would populate the theory in De Iure Bellli. There are, to be sure, the usual commonplacing headings (“Amicitia,” “Eloquentia,” “Coniugi bona et mala,” “Iustitia,” “Tyrannis,” and “Regnum”). But there are, too, some rather Grotian ones: on the divine origin of property,Footnote 72 for example, and on “pax victoria melior.”Footnote 73 As might be expected, there is plenty of interest in “Ius” and “Iustitia”: “Exempli Ius” for Troades; and God a lover of justice (“Deus amans Iustitiae”) for Helen;Footnote 74 another for “Iustitia in Helen,”Footnote 75 glossing a speech of the supplicant Helen, on the universality of justice, that reads: “The sky is the common possession of all mortals, and so is the earth, on which men should not hold other men's property or take it by force.”Footnote 76 To Grotius, Euripides was particularly useful for thinking about non-European peoples, “Barbari”: in a debate over whether barbarians indeed possess laws, a topic highly relevant to the early international world and rights of conquest and war.Footnote 77 On the one hand, Grotius notes that no law prevents “barbarian” behavior (“nulla lex prohibet nefas),” and, on the other, he observes that “Ius naturae ubique idem,” that the law of nature is the same everywhere.Footnote 78 In De Iure Belli, Grotius chooses this latter answer against this charge against barbarians, as will be shown below.Footnote 79
In his Excerpta, moreover, it is plain to see, war topics abound. Lines from Phoenician Women prompt a marginal gloss of “causa belli” (“justification for war”), as Grotius sums up the lines “they are coming to the land with justice [δίκῃ] on their side,” and translates them as “Iure in hos fines eunt.”Footnote 80 Words from Euripides's Suppliants are given a marginal point: “Causa belli.” The prompt there is Theseus's mother Aethra, who spurs her son to war against the Thebans on behalf of the victims of injustice: “You are setting out in a just cause [δίκῃ].”Footnote 81 Another passage from Suppliants is glossed, “Deliberatio de bello” (“Deliberation on war”). There Grotius characterizes the Herald's long speech contemplating the merits of war and peace (“When a war comes to be voted on by the people, no one reckons on his own death . . . how much better for mortals is peace than war”).Footnote 82 These marginal headings give a clear portrait of a reader looking to understand war, justice, law, and the like, the excerpts a workshop of the thought that is to come. Exploring his engagements with Greek and Roman drama through this erudition of translating, organizing, and collecting draws insight into a number of the topics Grotius was formulating: what was just and what was merely legal, as well as concepts of humanity, sociality, justice, freedom of speech, and proper rule.
DRAMA OF DIGNITY
While these resources may be considered simply empirical materials culled from classical learning in order to ornament Grotius's humanist De Iure Belli, the suggestion here is that they do more than furnish his argument with pleasing sententiae. At times, the dramatic situation is remarked upon when Grotius places them in his argument. For instance, very early in his De Iure Belli are two examples from Euripides's tragedies The Phoenician Women and Andromache, cited to establish that there is a principle of justice above national law. Each instance offers thoughts on justice, yet in De Iure Belli Grotius preserves the dramatic scenario—namely, that these words emerge in theatrical situations of conversation between members of two differing national groups. The claim illustrated is that justice is knowable to all, as Grotius had vaunted in his Prolegomena: “I have made it my concern to refer the proofs of things touching the law of nature to certain fundamental conceptions which are beyond question, so that no one can deny them without doing violence to himself.”Footnote 83 To make his point, Grotius continues, “Therefore Euripides in his Phoenissae makes Polynices, whose cause he would have to be represented manifestly just, deliver himself thus: I speak not things hard to be understood, / But such as, founded on the rules of equity and the good / Are known alike to the learned and the simple.”Footnote 84 Grotius renders that one word in Euripides's Greek (ἔνδιχ’) as a richer concept, taking up more words, in his Latin—“quae regulis aequi et boni”—sentiments strongly echoing the opening definition of justice in Roman law: “Jus est ars boni et aequi” (“law is the art of goodness and equity”).Footnote 85
What could simply be a sententia, culled from one of many possible wise sayings of poets or orators, becomes something more, as the jurist wants his readers to act as if listening along with that chorus. His text continues even after the quotation, inviting his readers to share in the reaction to these lines with those on stage: “And he [Euripides] immediately adds the Judgment of the Chorus (which consisted of Women and those too Barbarians) approving what he said.”Footnote 86 Not only redefining what is just as that which is equitable and good, the author also approves the reaction and judgment supplied by the play context, summarizing what was not excerpted in his Excerpta but what he read in the play, the chorus who respond, “Though I was not brought up in Greece, to me you seem to be speaking sensibly.”Footnote 87 The ideas of justice, “equity and the good,” are common to all. Dignity is to be accorded to all voices.
As if this assent of the chorus is not enough, Grotius brings in another voice from a different Euripidean play, Andromache: that of a slave. This is also a scene where the good is asserted across national lines. This play depicts the fate of the Trojan Andromache, Hector's wife, forcibly deported to Greece and enslaved now to Achilles's son. In the play, Andromache is to suffer the fatal jealousy of the legitimate wife, the Spartan Hermione. Early in the drama, Hermione arrogantly rebukes Andromache with a slur commonly used by the civilized against the barbarian: “We do not govern our State by the Laws of Barbarians [ὐ βαρβάρων νόμοισιν οἰκου̑μεν πόλιν]”; Grotius renders this into Latin as: “Non barbarorum more in urbe hac vivitur.” Refuting the ethnic difference, Andromache replies: “What is dishonourable or dishonest among them, bears the same Character also among us.” Or, “What's shameful is shameful, here as well as there [“qua turpia illis, hic quoque haut culpa vacant”].Footnote 88 A foundation of common dignity is the bracing for this claim.
Grotius cites the entire interchange in the prolegomena of De Jure, both the insult and the rebuke. Are the good and just particular to one people, or are they the same everywhere? Andromache's remark confirms the latter. This finding is achieved not simply through a pithy quotation—though there is that—but also through a record of a debate. By choosing a situation that crosses nationalities, as in his earlier excerpt from Helen, the jurist posits a moral status common to all humans: all are under the umbrella of one justice. This is, I think, why he is interested in these hard-won truths of captives, including women. In 1626, when Grotius gives the Latin translation of this interchange of the Trojan slave and the Spartan mistress in his Excerpta, there is given a marginal index topic: “Ius naturae ubique idem” (“the law of nature is the same everywhere”).Footnote 89 This arcing of one law over all, I suggest, is in the neighborhood of not simply commonality, but also of human dignity.
Tragedy often represents circumstances beyond one's control, a reconciliation of agency to fated necessity.Footnote 90 However, Grotius does not represent the voices of these captives, supplicants, or foreigners as lamentably caught in a tragic press of fate. Of course, the Aristotelian account of compassion gives the cognitive elements triggering sympathy,Footnote 91 and the first ingredient of Aristotle's theory of tragedy is that in order for pity to be created, the matter ought to be taken seriously. Empathy has been taken as psychologically important as a guide to ethics, and compassion through activities like fictional identification in novel reading is seen as a training ground for the kind of sympathy that would emerge as fellow feeling in those Enlightenment doctrines of “humanity.”Footnote 92 In Grotius's jurisprudence, in which the slave was made by a legal—not a natural—category, status was reversible. There is a sense in Andromache, and in all of the jurist's representations of his enslaved captives from Greek drama in his De Iure Belli, that the enslaved do not lose their dignity, their freedom to speak, or their sense of justice, even if they have lost the power to act autonomously. This was a principle in all his writings in De Iure regarding war captives: the enslaved did not lose all and become a species of thing. While they may be without legal agency (for the moment), their voices are capable of uttering truths about justice and morality. Slavery was, for Grotius, not a form of “social death.”Footnote 93
IS THE VICTOR ALLOWED TO DO WHATEVER HE PLEASES?
Instead of emancipation or abolition, however, Grotius advocates moderation toward those under one's power. The notion of what might now be called war crimes is of vital interest in Grotius's De Iure Belli: are there limits to conduct in war? To this question, Grotius answers, no—that is, not by law. The slaughter of noncombatants, women, and infants has been allowed by the common custom of nations, as the Iliad, Thucydides, Tacitus, and Virgil all give gruesome testimony.Footnote 94 If Euripides was the locus of thought regarding justice as vouched by captive women and foreigners, Seneca was the source to examine the affective requirements for a dignified, or even equitable, framework for human relations, a sociable morality grounded in mastery of the passions. With his account of the aftermath of Troy, Grotius offers a wary characterization of the amoral Pyrrhus from Seneca's The Trojan Women. There, Grotius finds Pyrrhus's statement that “the victor is allowed to do whatever he pleases,” a license that extends even to the slaughter of infants and women.Footnote 95 But those laws of nations that have delivered up such gory precedents must not be confused with morality. As has been shown, Grotius is interested in the dialogue in tragedy: the speech situation, the retort. As if his own work is a drama with a plot, there are six chapters that intervene between Pyrrhus's statement in The Trojan Women and Agamemnon's reply. In those intervening six chapters, Grotius shows precedents for the sorts of inhumane treatment in war that are permissible by law, many of them from those very pagans he used to exemplify principles of justice. From his reading of the Iliad, the innocent and soldiers are victims alike. There, too, he finds indiscriminate killing; slaughtering of women, old men, and children; spoil; plunder; booty; and the selling or enslaving of captives—atrocities for which Grotius concedes permission in the law. From the Iliad, he cites “little ones hurled to the ground in dread conflict, and my sons’ wives dragged off at the deadly hands of the Achaeans”Footnote 96 and from the Aeneid, Pyrrhus's killing of Priam is taken to demonstrate that the slaughtering of old men is not legally exempted.Footnote 97 Another instance of what may be done in war is the killing of a woman captive: the proof text, another heart-wrenching moment from a tragic classical work, Ciris, in which the punished woman, Scylla, laments, “now, now it is wickedness that has conquered all,” begging for death rather than the punishment to which she has been consigned: “Would that at least, by the law of war, you had killed me, your captive!”Footnote 98 Here, captive women's mistreatment is presented as permissible.
Even so, there are legal limits: rape (stupra) is one of those things which are not legal in war, a rare exception to all the depredations Grotius listed.Footnote 99 Rape is illegal not because it is an assault on the body, or rights, or of the autonomy of the other.Footnote 100 It is so because it is not appropriate to men's humanity: it is a signal loss of the warrior's self-control. Grotius does admit that there are some who consider rape in the time of war legitimate while others find it impermissible; he approves those who hold the latter view for their better sense (“melius alii”),Footnote 101 considering as they do not only the injury but perform “unrestrained lust,” that which exceeds what is necessary for war.Footnote 102 There should be as much punishment for rapes occurring in war as is accorded those occurring in peacetime.Footnote 103 That extremity of human behavior, the thing that makes rape in war illegal even if almost everything else is permitted, is the working of an unrestrained lust, a loss of self-control. Appealing repeatedly to the concept of equity, the last chapters of his De Iure Belli are taken up with moderation toward enemies and a reduction of cruelty in war, with praise for those who refrain from drawing their swords against the defeated.Footnote 104
Yet just because most, if not all, horrific actions are permissible by law, this does not make them right. Quite a long time after this run of chapters on legal atrocity Grotius returns to the moment earlier cited in Seneca's Trojan Women, where Pyrrhus, speaking to King Agamemnon, licenses harsh treatment of captives in war (“No law commands to spare the captive slave” and “The Victor's Will is an assured Law”).Footnote 105 At last, a dramatic six chapters later, in chapter 10 of his third book of De Iure Belli, Grotius shows that Pyrrhus's words are not the end of the dialogue in Seneca's play. Agamemnon retorts: “What law forbids not, Honor doth restrain” (“quod non vetat lex, hoc vetat fieri pudor”).Footnote 106
Grotius thus opens this new chapter with a significant retraction of what violence is right in treatment of captives and in war conduct, and here he lays privilege to the good over the permissible. With a wry sense of humor, Grotius claims that that “which I seemed to grant, yet did I not grant to them.”Footnote 107 Thus, he voids his approval. It's true, the jurist admits, many things were deemed to be “right and lawful”Footnote 108 or “‘lawful’ or ‘permissible’”Footnote 109—that is, “testatus sum juris esse aut licere”Footnote 110—but indeed they are actually contrary to the idea of “justice properly so called.”Footnote 111 Here is where Grotius's Stoicism, his sense of moderation and tempering of the passions of war that incline to cruelty, emerges. Stating powerfully that those “who abstain from such Things, act in a manner more honest and more commendable in the Opinion of good Men” (“What law does not forbid, a sense of restraint forbids”—Seneca),Footnote 112 Grotius explains that what is meant by “pudor” (“honor”) is not reputation—that is, not simply as the esteem of other men (“non tam hominum & famae”Footnote 113)— but also “a respect for equity and justice, at least a constant Adherence to that which is most just and most honest [quam aequi & boni, aut certe ejus quot aequius meliusque est, respectum significat].”Footnote 114 Indeed, from the language of debt obligation and matters of fiduciary trust in Justinian's Institutes, “Justitia and Pudor, Justice and Honour [are] joined together [justitiam cum pudore conjugi].”Footnote 115 For Grotius, not everything was permissible in war; not everything could be justified by expedience. This is not, therefore, reason of state (i.e., Machiavellian) or moral indifference, which he attributes to Carneades, who is challenged in the Prolegomena to his work.Footnote 116 Rather than arising from imperatives of punishment or personal liberty, the moralism that grounds the jurist's work is instead a concept of social obligation.Footnote 117
Confirmation for his claim is a string of judgments by Seneca vouching a morality higher than the law, which Grotius adds to the notes. From Seneca's De ira, he cites:
How small a matter is it, to be a good man, only so far as the laws require? How much larger is the rule of duty than of right? How many things does natural affection, humanity, liberality, Justice and faith demand. Which are all beyond the reach of the civil laws. Where one may see he puts a difference between jus and justitia, right and justice. He means by right, that which is actionable in the courts of judicature.Footnote 118
As regards the master's right over his slaves, Grotius seizes on a warrant from Seneca's De clementia that appeals to a higher principle of equity and good behavior: “As to our bond servants we must consider, not what we may without danger of the law put upon them, but what the nature of equity and honesty would allow, which obliges us to be merciful to our prisoners, and those purchased with our own money.”Footnote 119 A third Senecan quotation also stresses a morality higher than the law alone when treating the enslaved. This he derives from Seneca's notion of a common right of animal life: “Indeed every thing is lawful with regard to a slave, considered as such: but there are some things which are not lawful with regard to a slave, considered as a man, according to the common right of animals.” And, concluding this thought with a quotation from Seneca's words from De clementia, Grotius rounds off his support from Stoical philosophy for a morality above the law: “although the law allows anything in dealing with a slave, yet in dealing with [him as a] human being [quod in hominem] there is an extreme which the right common to all living creatures [commune ius animantium] refuses to allow.”Footnote 120
By equity, then, and by a Stoical ethos, Grotius avers the rights of the slave. The jurist refrains from asking for pity for the captive as a ground for a common humanity, whether as sharing suffering or grieving together in loss. The captive is, rather, an emblem for how one day can bring catastrophe to anyone; as Hecuba supplicates to her captor, Odysseus: “I too was once someone of importance, but now I am so no longer: a single day has stolen all my happiness from me,” a plangency Grotius translates in his Excerpta of 1626.Footnote 121 Grotius's biblical drama Sophompaneas (1635) told a similar tale of sharp reversal in the story of Joseph, who was sold into slavery in Egypt, fell into service of the pharaoh's courtier Potiphar, rose to eminence, and then was finally reunited with his family—a career reflecting the Dutchman's own predicament of falling low in imprisonment and exile, and his hopes of rising again, as he would later in the Swedish court. The drama highlighted fortune's caprice, rewarding Joseph and his family with religious toleration in Egypt for the Hebrew people.Footnote 122 As Grotius wrote in his Remonstrantie (1615), also arguing in favor of freedoms for resident Jews in the Netherlands in his own time, the right of hospitality to foreigners arises out of a “natural kinship, which is common to all people,” from which “springs hospitality, which is recommended to us not only by Scripture, but also by the pagan authors, and involves receiving strangers and treating them well.”Footnote 123 And in De Iure, he confirms the principle of inherent sociality: by nature, humans had a “desire for fellowship” and a “care of maintaining society.”Footnote 124 These were philosophical, no less than religious questions, as were found in his 1642 rebuttal to the suggestion that Indigenous Amerindians were evidence of polygenesis—that is, separately formed races. Grotius insisted that all humans were descended from one ancestor and comprised one species, and thus there were not distinct races.Footnote 125 Thus Grotius rejected the polygenesis concept, gaining currency among avant-garde theologians such as Isaac de La Peyrère, who purported that Adam was not the parent of all humans on Earth and that there were different species.
Freedom was only for some, however: Grotius's Sophompaneas, seen as a spot of philosemitism, nonetheless has a slave chorus of “Aethiopian women,” depicted as Black Africans.Footnote 126 Voicing one third of the lines in the play, they seem outspoken and yet content to serve the virtuous Joseph's wife, even though they have been taken from their native land. Onstage for the duration of a play, these vocal women seem background to a story that is principally concerned with the sale of free men to foreign princes and hospitality to the stranger. Grotius is unconcerned with their attaining freedom, and leaves their status uncontested. If Sophompaneas vaunted the heroics of endurance, whereby time, fortune, or the powerful might render a reprieve or even a reversal of circumstance, it also avowed that slavery was a lot one could endure. Rather than seeing in the captive a figure for tragic necessity, Grotius provides a scenario where slave and free coexist, but under one humanity. The jurist's interest in classical tragedy, and in particular the speeches of the enslaved women, is not strictly fatalism, nor embellishment, but rather the way that this particular early modern humanist opened up a space of reflection about a humanity common to the slave and the free.
HUMAN NATURE AND SLAVERY IN GROTIUS
Grotius wrote that a person could choose to become a slave—which led Rousseau to characterize Grotius's political theory as most “favorable to tyrants.”Footnote 127 It may seem a contradiction that the writer gave slavery legitimacy by mediating his views through a Greek and Roman drama that also mediated his views of a common justice. Although Grotius's account of human nature began not with ethnic identity but with a principle of freedom, his politics were not those of emancipation. There were others, however, who did challenge the emerging institutions of enslavement, such as Grotius's Dutch contemporary, Gerbrand Adriaensz Bredero (1585–1618), who condemned the practice of trading slaves in his drama, Moortje (The little Moor, performed 1615 and published 1617), written in the newly independent Dutch Republic and as a rebuke to Spanish and Portuguese practices.Footnote 128 This was in a brief window during the struggle between the emerging Dutch Republic and the Habsburg Empire when there were republican voices opposing slavery and the slave trade as part of their anti-Spanish sentiment.Footnote 129 A Dutch West India Company committee was established to consider the moral implications of the slave trade (the minutes are lost to history), with Willem Usselincx (1567–1647) among those opposing instituting slavery in these colonies.Footnote 130 However, after the Dutch establishment in Brazil, economic drive silenced such moral concerns.Footnote 131 Grotius was one of those who declined to speak against, and who supplied justification for, the rights of slavers and the existence of slavery as an institution under the law.
His position was that of a Stoic, who considered freedom to be internal to one's condition, but this, it is important to note, was compatible with slavery on different grounds than were Aristotelian biopolitics or early modern polygenesis. Grotius's challenge to racialized or naturalized accounts of slavery is powerful nevertheless. In De Iure Belli, he adopts the framework for the law of slavery from Roman law,Footnote 132 where slavery was part of the laws of peoples, the ius gentium. It originated in war, not in natural slavishness; it was a matter, strictly, of law, not of morality or biology. While condemning Portuguese atrocities against the Dutch, Grotius in Jure Praedae (1604) was outraged they had delivered “into perpetual slavery the men whom they themselves have captured, a practice denounced by all the jurists as impermissible even in a legitimate war between Christians, since it is contrary to established law.”Footnote 133 The jurist himself cites Aristotle that “some Men are naturally Slaves, that is, turned for Slavery,”Footnote 134 but he did not endorse that view. Rather, he considered slavery to be contrary to the law of nature.Footnote 135 “By nature,” Grotius wrote, “a man's life is his own, not indeed to destroy, but to safeguard; also his own are his body, limbs, reputation, humour, and the acts of his will.”Footnote 136 Nature did not make slaves; men did. And he devotes three chapters of his De Iure Belli to slavery: in book 2, chapter 5 (“De acquisitione originaria iuris in personas”); in book 3, chapter 7 (“De iure in captivos”); and in book 3, chapter 14 (“Temperamentum circa captos”). One could surrender oneself to complete slavery, which was the perpetual giving of labor in exchange for the necessities of life, and this is permissible if it is “without excessive harshness if kept within natural limits.”Footnote 137 Slavery falls under the ius gentium, the laws of peoples.Footnote 138 The premise is that people possess an originary freedom; per Grotius, “There is no Man by Nature Slave to another.”Footnote 139 Yet that freedom is compatible with voluntary enslavement;Footnote 140 indeed, under the law of nations even the slave's desire for liberty did not justify revolt, and slaves captured in wars should not run away but should bear their conditions patiently, their descendants born into slavery. Only cruelty justifies slaves running away.Footnote 141 Enslavement, however, does not give the enslaver right of life and death over the slave.Footnote 142 Slavery in Grotius belongs to the law of obligations, not of right: the master owes support and aliment to the enslaved under his power.Footnote 143
Though external enslavement may be valid by law, however, it is nonetheless unjust in its “intrinsic nature” to enslave captives of war.Footnote 144 Grotius justifies war slavery with numerous quotations from classical history, while also noting exceptions from Muslim practice and in his own day; indeed, he claims, it would be better for Christians not to do this.Footnote 145 Careful to distinguish captivity of the body from that of the mind, Grotius follows Stoic thought. A voluntary slave may be that captive whose life is spared on the condition of his servitude. Like the Stoics, he considered legal slavery as a social fact.Footnote 146
Some of Grotius's discussion of slavery seems to speak to his contemporary moment, indeed.Footnote 147 As Grotius had it, humans can make slaves by law and criminals may become slaves. But a people may not justly fight a war of conquest over another people it fancied fit for slavery or had taken as closer to beasts on account of their different origins.Footnote 148 In so claiming, Grotius repeatedly challenged the distinction between civilized and barbarian as central to slave conquest theory, whether in its Aristotelian natural slavery or Christian holy warfare guises, such as had formed the justification for conquest of the Indians by Sepúlveda. It was also a tacit blow against the commercial militarism of the Dutch VOC in Brazil and in the East Indies, which had conquered then deported survivors to be slave workers, for example in the Banda Islands (1609–21), establishing a Dutch hegemony in Indonesia enduring until 1940.Footnote 149 Grotius refused the conversion logic of a civilizing mission for non-Christians, breaking with the terms of debate among the scholastics. He, like Francisco de Vitoria (ca. 1483–1546), sought a common framework for those inside and outside of Christianity.Footnote 150 The Dutchman scorned the Christian just war tradition against infidels, which had guided European relations with Saracens and, in his insistence on moderation, he implicitly took part in anti-Spanish republican discourse that highlighted cruelties against the Indians.Footnote 151
Grotius has a complex view of slavery, which he considered in its several historical varieties of bondage and serfdom, as well as in the form of philosophical unfreedom. Although the jurist wrote, “There is no man by nature slave to another, that is, in his primitive state considered, independently of any human fact . . . slavery is against nature,” nonetheless human laws could fashion slaves.Footnote 152 Though Grotius holds a broadly inclusive view of one humanity and of the charity due to all peoples, even to the slave, there is not a language of emancipation to ground an account of slavery as a moral wrong. Enslavement per se is not among the list of inhumane actions he berates in this work. Inhumanity, however, is morally reprehensible. He writes in response to the inhumanity (immanitatis) he is witnessing of the “lack of restraint in relation to war” (“pudendam bellandi licentiam”). With the lexis of moral conduct and shame (pudendam), Grotius makes his case for taming the monstrosity of war.Footnote 153
Unlike the natural law legacy of Aquinas, which could justify forms of slavery for those thought to be without reason, Grotius did not consider others (for the European: infidels, barbarians, heathens, indigenes) to be monsters. Rather than through the law—by which slaves can be made—Grotius wishes to provide an ethical substrate that would make the equitable recognition of a common humanity an instrument of restraint for the captor or enslaver. In his eighteenth-century translation, Jean Barbeyrac (1674–1744) Christianizes these under the umbrella concept of “the law of Charity,”Footnote 154 and it may be that the golden rule seems to be at the bottom, a Christian notion Grotius deems best.Footnote 155 Nonetheless, Christianity is not the only form of a universal care for others. Grotius's Latin includes a rather broader, less theologically coded range of terms, and those outside a specifically Christian lexicon, to describe that which reaches farther than law. Charity (caritatis) is certainly there,Footnote 156 but so also are concepts of law (lex dilectionis) and duty (officium) of care.Footnote 157 What is beyond the strictness of law is distributed among the concepts of equity, duty, care, and even humanity: a Stoical lexis that frames humanity as applying to all.
Even as De Iure Belli took the existence of war slaves as legally justifiable, it also saw the enslaved as within, and not outside, the law. Therefore, humane treatment of captives was warranted. As he saw it, “the law of nature is shared between the free and the enslaved” (“ius naturae commune liberis & servis”), a summation he put in a marginal gloss to lines from Euripides's Hecuba.Footnote 158 For his Excerpta he had translated from Hecuba, “there is a law laid down, the same for free men and slaves, concerning the shedding of blood.” The philological work of translation exposes the purpose for which these lines tend. From the Greek:
Grotius transforms this into Latin lines in his Excerpta:
Grotius has chosen to translate the Greek word for bondsman (δούλοις) to make it explicit that these are those captured by war (“Nos Marte captos”). Lyrically, Grotius puts these war captives and those living under the condition of freedom (“ἐλευθέροις ἴσος”) in the very same line of poetry, rendering the “We [enslaved]” and the “you [under freedom]” balanced and equivalent in weight. Both are held by the same law, as the marginal gloss indicates by pointing to this statement as an instance of natural law, which is common to the free and the enslaved (“Ius naturae commune libertis & servis”). This slide between the war slave and the slave may seem minor—indeed Hecuba is a war slave—but it highlights that Grotius is thinking about war slavery specifically, not only slavery in general. Grotius's translation challenges the view that war slavery is a form of absolute dominion.Footnote 161 Some right, a subjective right, remains for the war captive, who is held to a common law, a law of nature that objects to the shedding of blood.
Grotius's engagement with dramatic literature was not solely a means of producing sympathy or compassion, giving voice to the vulnerable. Grotius did not have a Hegelian-tragic view of life; that is, he did not pit fate or necessity as against human self-consciousness. Instead of seeking to inspire pity or sympathy, in De Iure Belli the tragic characters are brought forward to represent the humanity of the defeated, not their victimhood. The formal conditions of reversability of status, by which queens like Helen can become slaves and then queens again, meant that the jurisprudential concept of equity could be taken as a formal aesthetic and moral principle. Roman law allowed slaves no legal personality, with no rights of redress but flight. But from his notion of sociality, Grotius took the formal quality of equity, rather than legal entitlement or even compassion, for the provision of a common humanity.
METHOD: HUMANIST OR SCIENTIFIC?
In stacking up his evidence, Grotius avers that “the opinions of poets and orators are not of so great weight,” and that he uses them simply for “ornament.”Footnote 162 However, as has been argued here, this late humanist is not entirely right about his own method.Footnote 163 It may be that Grotius's defensiveness about the place of literature in this work records an early moment for the debate between humanism and a scientific method. In De Iure Praedae, Grotius had likened his approach to that of the mathematicians, who based their arguments upon “broad axioms on which all persons are easily agreed” (a statement that Richard Tuck equates to a break with humanism).Footnote 164 However, in De Iure Belli, Grotius makes no such analogy. Rather, he turns to his library of compendious knowledge to arrive at generalities:
In investigating this law, I have benefited from the testimony of philosophers, historians, poets, and, lastly, orators. One should not naively believe whatever they say, since they are often loyal to a particular party, program, or cause; but what is affirmed by many people at different times and places to be obvious must be presumed to rest on some universal reason [“ad causam universalem”]. In the issues we are considering, this reason can only be either a correct deduction from the principles of our nature, or some general agreement. The former means that it is a law of nature, the latter that it is a law of nations.Footnote 165
His method will be a counter to those who have, as he sees it, committed any one of a number of follies: for example, selecting evidence only where it served their interest, failing to distinguish “that which is truly and in every Respect lawful, and that which only produces a certain external effect,” following slavishly the teachings of others (i.e., Aristotle), or, like Carneades the Skeptic, doubting that truth is attainable in such things.Footnote 166 He is, too, aware of the need for a clean, direct style, faulting predecessors for jumbling up their concepts without any system.Footnote 167 Grotius, instead, takes up those minimal things that are self-evident as the foundations for his book, those things that are true apart from interest. This was built upon a social, not strictly a philosophical approach. Classical literature could supply examples, and indeed analyzing these could produce thought quite different to the mathematical method taken up by, for example, Samuel Pufendorf; or to the geometric mode of Thomas Hobbes.
This humanist sense of poetry and drama as a common resource is a different conception of how literature works than has usually been understood in the construction of human rights discourse, in which imaginative writing is seen as arousing sympathy across distance.Footnote 168 What has been described here is instead closer to a strand of human rights thinking that is about dignity, seen by the late Ronald Dworkin as the most basic moral value.Footnote 169 The concept of dignity emerges out of analysis of the moral injury of torture, for example, that summons a shared humanity of suffering, as in J. M. Bernstein's important work on torture and dignity.Footnote 170 By insisting on the processual experience of negotiating with those unlike ourselves, Grotius is drawn to Greek tragedy's staging of difference, and to the Stoical lexicon of self-control, with close reading (philology) taking place across history. That forces a recognition of a situation of shared space, whether that be the space of the theater, literature, or history, or the space of nations coexisting, fashioned from the formal premises of intelligibility and commonality.
The exploration here thus suggests that the perspective of a literary historian might benefit those of the historians of ideas, philosophers, and jurisprudential theorists, and clarify how essential the endowments of imaginative writing were to Grotius in his practice of jurisprudential reasoning. These eclectic but focused resources from classical imaginative literature pose important questions for the treatment of the unfree, that is, those subjugated or made captive in war, of which there are so many in ancient literature. Grotius's way of thinking through literature, even as it could justify slavery, did not foment a racializing discourse that would come to dominate the slave trade. Instead, from that fund of social experience found in classical drama and epic, and not from universal reason, Grotius produced thinking about war captives in respect to what he designated as a common humanity. His voicing the captives not only contributed to a general conception of personhood but also to an account of those binding moral requirements based on the dignity of the human person. His is not a liberal concept of rights.
GUERNICA
Adorno recounts the following story about Picasso. “an officer of the Nazi occupation forces visited the painter in his studio and, pointing to Guernica, asked: ‘Did you do that?’ Picasso is said to have answered, ‘No, you did.’”Footnote 171 Turning attention away from the victim to the perpetrators, Europeans included, Grotius, too, sheds awareness on a wider vision of justice as equity owed to others that can constrain the immorality of war. Responsibility is with the abusers of a common humanity, those who break the social bonds, those perpetrators of injustice to which a world of literature calls to pay attention. One of the main purposes of this essay is to situate the history of the laws of nature, of just warfare and its treatments of captives, within the history of European humanist literature, drawing together the disciplines of political thought and literature. Imperial warfare and the rise of the early modern practices of unfree labor and exploitation are interconnected through these literary as well as legal and theological resources. The reinstatement of imaginative genres, texts mediating and creating space for reflection, self-awareness, and distance, brings a long-neglected tool, a mirror that offers self-reflection and awareness of just those devastations.
Open access
