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Grotius bleg:

The great Dutch philosopher Grotius, one of the founders of modern international law, wrote that foreign humanitarian intervention was lawful to "to stop the maltreatment by a state of its own nationals when that conduct is so brutal and large-scale as to shock the conscience of the community of nations." I found the quote in a secondary source (Commentary magazine). Does anyone know the original cite? The quote does not appear in the law review database in Westlaw, nor in the Allcases database.

Defending the Indefensible:
You might try to find what you're looking for in this text:

On the Law of War and Peace (De Jure Belli ac Pacis).
3.13.2006 10:58pm
Lowell R. (mail):
I searched everything on Liberty Fund's page (http://oll.libertyfund.org/Intros/Grotius.php) for some key terms from that quote -- nothing. Maybe he was using a particularly unorthodox translation?
3.13.2006 11:03pm
Lowell R. (mail):
Here's a start:

http://www.xs4all.nl/~ingel/c.ingelse/intconce.htm

See nn. 59-60 and accompanying text.
3.13.2006 11:15pm
Dave Hardy (mail) (www):
The fact of translation is going to make research a bear. Maltreatment vs. mistreatment, its own nationals vs. its citizens vs. its residents vs. its subjects, and let alone whatever Dutch phrase would have equated to "shock the conscience" but another translator might have considered fitted a different English phrase.
3.13.2006 11:25pm
Gus (mail):
Google Print to the rescue. Do a search for: ""state of its own nationals" grotius" on print.google.com. You get one hit, for Weiss &Collins, "Humanitarian Challenges and Intervention," and the page on which it has that quotation, with that translation, cited to De Jure Belli ac Pacis.

--Gus
3.13.2006 11:28pm
Lowell R. (mail):
More...

Here's a paragraph in French from the Traité du Pouvoir du Magistrat Politique sur les choses sacrées (http://www.gutenberg.org/files/14905/14905-8.txt). My French is rusty to say the least, but the italicized part might be worth something.

Il est bon de distinguer l'acte qui provoque la soumission du Sujet &la
violence dont on accompagne cet acte, &qui lui impose la nécessité de la souffrir. S'il est vrai que l'acte n'ait point son exécution, la force a toujours son effet, non-seulement physique, mais moral; non-seulement de la part de l'Agent, mais du Patient, à qui il n'est pas permis de repousser cette violence; car toute défense permise entre
égaux, ne l'est plus contre son Supérieur. Le Juris-Consulte Macer rapporte que: «Les anciens notoient d'infamie un Soldat qui ne souffroit pas la correction de son Centurion; ils le cassoient s'il saisissoit le bâton de commandement; &ils le condamnoient à mort s'il le rompoit ou s'il frappoit son officier.» Tout ordre du Souverain oblige dans le
moment à tout ce qui n'est pas injuste; &il n'est pas injuste de souffrir avec patience. Quoique cette maxime semble venir du droit humain, ou prendre sa source dans la loi naturelle, qui défend à un Membre de s'élever contre le tout, même pour sa conservation; elle est cependant plus clairement écrite dans la loi divine. JESUS-CHRIST, en
disant que: «Celui qui prend le glaive périra par le glaive,» désaprouve cette résistance à une force injuste, revêtue de l'autorité publique. «Qui résiste, répète S. Paul, résiste à l'ordre de Dieu: on désobéit de deux façons, ou en n'exécutant point la loi, ou en repoussant la force
par la force. Si l'autorité, poursuit Saint Augustin, amie de la justice, corrige quelqu'un, elle tire sa gloire de la correction, &si l'autorité, ennemie de la justice, maltraite quelqu'un, elle tire sa gloire d'avoir éprouvé sa constance.»
S. Pierre prêche aux Esclaves la
soumission aveugle aux Maîtres bons ou méchans: S. Augustin applique ce précepte aux Sujets: «Telle doit être l'obéissance des Sujets envers leur Prince, des Esclaves envers leurs Maîtres; que leur patience continuelle conserve leurs biens, &leur mérite le Salut éternel.»
3.13.2006 11:28pm
James Fulford (mail):
This may be it:


Upon this principle there can be no hesitation in pronouncing all wars to be just, that are made upon pirates, general robbers, and enemies of the human race. So far this opinion agrees with that of Innocentius and others, who maintain all war to be lawful against those who have renounced the ties and law of nature.


On The Law Of War And Peace
, Book 2, Chapter 20, Section XL

I think that this is answering the chapter heading:Whether Kings and Nations are justified in making war to punish offences against the law of nature, not immediately affecting themselves or their subjects

The if Commentary version, which I haven't read, is a version of this, by Roger Sandall, then it's apparently not a direct quote, but Sandall's paraphrase. You could contact Sandall, his email is on his website, and ask him.
3.13.2006 11:32pm
Stephen C. Carlson (www):
This page attributes the quotation to Sir Hersh Lauterpacht in Oppenheim, L., 1962, International Law, 8th ed., Vol. I, p. 312 (ed. H. Lauterpacht).
3.13.2006 11:35pm
Andrew Hyman (mail) (www):

Grotius: On the Law of War and Peace: Book II Chapter 25:

Though it is a rule established by the laws of nature and of social order, and a rule confirmed by all the records of history, that every sovereign is supreme judge in his own kingdom and over his own subjects, in whose disputes no foreign power can justly interfere. Yet where a Busiris, a Phalaris or a Thracian Diomede provoke their people to despair and resistance by unheard of cruelties, having themselves abandoned all the laws of nature, they lose the rights of independent sovereigns, and can no longer claim the privilege of the law of nations. Thus Constantine took up arms against Maxentius and Licinius, and other Roman emperors either took, or threatened to take them against the Persians, if they did not desist from persecuting the Christians.
Admitting that it would be fraught with the greatest dangers if subjects were allowed to redress grievances by force of arms, it does not necessarily follow that other powers are prohibited from giving them assistance when labouring under grievous oppressions. For whenever the impediment to any action is of a personal nature, and not inherent in the action itself, one person may perform for another, what he cannot do for himself, provided it is an action by which some kind service may be rendered. Thus a guardian or any other friend may undertake an action for a ward, which he is incapacitated from doing for himself.
The impediment, which prohibits a SUBJECT from making resistance, does not depend upon the nature of the OCCASION, which would operate equally upon the feelings of men, whether they were subjects or not, but upon the character of the persons, who cannot transfer their natural allegiance from their own sovereign to another. But this principle does not bind those, who are not the liege-subjects of that sovereign or power. Their opposition to him or the state may sometimes be connected with the defence of the oppressed, and can never be construed into an act of treason. But pretexts of that kind cannot always be allowed, they may often be used as the cover of ambitious designs. But right does not necessarily lose its nature from being in the hands of wicked men. The sea still continues a channel of lawful intercourse, though sometimes navigated by pirates, and swords are still instruments of defence, though sometimes wielded by robbers or assassins.


http://www.constitution.org/gro/djbp_225.htm
3.14.2006 12:07am
James Fulford (mail):
Lauterpacht may have been paraphrasing Grotius, he was a big Grotius man.

I looked at the original Commentary article, which Dave Kopel quoted in a paper on microdisarmament, and the quote does have quotation marks around it, but on Sandall's own site, it doesn't. The quote marks may have been added by a Commentary copy-editor.
3.14.2006 12:14am
Garrett Kajmowicz (mail) (www):
Lowell, here's a decent initial translation (my French is a few years old). Note that the translation is probably a little on the literal side:

It is good distinguish between the act that provokes the subject to submit &the violence which accompanies that act &he who imposes the necessity of the suffering. If it is true that the act is not the point of it's execution, that force always has it's own effect, not only physically but morally; not only on the part of the Agent of force but of the Patient, who is not allowed to repelle this violence; because all defence allowed between equals is not longer allowed against their superior.
The Juris-Consulte [senior legal official probably similar to Attorney General] Macer writes that "There existed the ancient and notorious treatment of a soldier who did not submit to the discipline of his Centurion; they would beat him for seizing the baton of command &they condemned him to death if he broke it or struck his officer." All orders of the Sovereign were binding at the moment that they were not unjust &and it is not unjust to suffer with patience. Although this maxim seems to come from human rights or natural law, thus preventing one from benefiting at the expense of the rest, even for their for their own protection; it originates more clearly from divine right theory. JESUS-CHRIST, in saying that "He who lives by the sword will die by the sword," disapproves this resistance to an unjust force, retained by public authority. "Who resists, repeasts St. Paul, resists the command of God: we disobey in two fashions, in failing to uphold the law, and in using force to counter force. If the authority, persues St. Augustine, friend of justice, corrects someone, they attain glory by being corrected, &if the authority, enemy of jutice, mistreats someone, they loose their glory to have their soul judged worthy. St. Peter preached to the Slaves the blind submission to Masters both good and bad: St. Augustine applied this principle to Subjects: "There must be obedience of subjects to their Prince, of Slaves to their Masters; that their continual patience keeps them good, &that they are worthy of eternal salvation."
3.14.2006 12:33am
James Fulford (mail):
Gus wrote, above:


You get one hit, for Weiss &Collins, "Humanitarian Challenges and Intervention," and the page on which it has that quotation, with that translation, cited to De Jure Belli ac Pacis.


Yes, but when you track down the footnote, you see that it's cited to International Human Rights, by Thomas Buergenthal, on Page 3.

If you search that, using Amazon's search inside feature, you get


See E. C. Stowell, Intervention in International Law 53 (1921); L. Sohn and T. Buergenthal, International Protection Of Human Rights 137, 1973.


This is now officially more trouble than it's worth, (I'm not complaining, I like doing this) and I suggest that a young, strong, graduate student from the Independence Institute needs to be sent on a mission to find the paper originals.
3.14.2006 12:40am
PersonFromPorlock:
At any rate, Grotius has been overtaken by events; such interventions are now justified through being authorized by competent authority (i.e., the UN), not through natural law. Another triumph of legal positivism.
3.14.2006 8:20am
Robert Lyman (mail):
Grotius has been overtaken by events; such interventions are now justified through being authorized by competent authority (i.e., the UN),

Well, not all of us would describe the UN as either "competent" or an "authority."

I have no actual knowledge of Grotius, but "shocks the conscience" sounds like something somebody familar with the 20th century US Supreme Court would say.
3.14.2006 9:30am
Justin (mail):
Gee, two conservatives having an argument over how the UN lost the war in Iraq :-/.
3.14.2006 9:45am
PersonFromPorlock:
Sorry, I should have put scare quotes around "competent authority."
3.14.2006 9:49am
just wondering:
Oppenheim's International Law by Lauterpacht (7th ed., at 279-80) describes the view that humanitarian intervention is permissible against a state that "renders itself guilty of cruelties against and the persecution of its nationals, in such a way as to deny their fundamental human rights and to shock the conscience of mankind," for which he cites (among others) "Grotius ii. 20, 38."
3.14.2006 2:45pm
Dr. Weevil (mail) (www):
Here are some relevant bits from Whewell's text and translation of Grotius (Cambridge, 1853):

II.xx.40.1: "It is to be understood also that kings, and they whose rights are of the nature of royal rights, have the right of requiring punishment, not only for injuries committed against them and their subjects, but for those also which do not peculiarly touch them, but which enormously violate the law of nature and nations in any persons."

("Shock the conscience of mankind" is not all that far from "enormously violate [<i>immaniter violant</i>] the law of nature and nations". The adverb <i>immaniter</i> means not just "enormously, hugely" but "monstrously, savagely, brutally".)

Ibid: "Indeed it is more honourable to punish the injuries of others than your own, in proportion as, in your own, it is to be feared lest a person may, by the sense of his own pain, either exceed due measure, or vitiate his mind with malice."

Andrew Hyman's quotation immediately follows. Busiris and Phalaris were tyrants who practiced human sacrifice. The Thracian Diomede, called that to distinguish him from Diomedes, son of Tydeus, one of the major Greek heroes in the <i>Iliad</i>, had a team of man-eating horses to which he fed innocent victims. Killing him was one of Hercules' twelve labors.

Grotius' argument is quite nuanced. He commends (II.xx,25.3) war against cannibals, pirates, and those who kill strangers, also (4) those who "sin against nature" (uh oh! sounds a bit Wahabish), but adds provisos:

II.xx.41: "But here some cautions are to be applied; first, we are not to take instituted usages of states, though received among many nations, and not without reason, for the laws of nature; of which kind mostly were those things in which the Persians differed from the Grecians; to which we may refer what Plutarch says: <i>that to profess to civilize barbarous nations, was a pretext to cover mere cupidity</i>."

42: "In the second place, we must take care that we do not rashly reckon, among the things forbidden by nature, those, with regard to which this is not clear; and which are rather interdicted by the divine will: in which class we must place concubinage, and some of the offenses called incest, and usury."

The Latin [<i>innuptos concubitus</i> = unmarried sleeping together] shows that Whewell's prudish "concubinage" is actually premarital sex or legalized prostitution or both. There's no way to tell whether "some of the offenses called incest" refers to different standards in what we would call incest (e.g. societies in which you can marry your first cousin) or more broadly to other sexual customs. The Latin word means "unchaste" and refers to any kind of sexual sin or crime, so it could conceivably refer to e.g. societies in which homosexual relations were openly permitted.

There's a lot more, but it looks like Grotius does allow humanitarian war against tyrants who oppress only their own citizens.
3.14.2006 11:43pm