Hugo Grotius and the Jewish Question – Political Sovereignty

Once again we are living in a period of polarized societies divided into two main factions with no ability, not only to cooperate, but even to share the same reality. That was the situation in the seventeenth century. Now, of course, we have lived for a long period after the belief in a democratic society promised liberation from dogmas and mindblindness, after liberalism became a set part of the foundation of Western democracy. We are back into such a period, initially with radical Islam versus Western democracy, but currently with a political leader of the most powerful state in the world backed largely by evangelical Christians and white nationalists who sew the fear of the electoral primary process into anyone who might deviate into the path of reasonableness, the path of detached observation and the path of dispassionate judgement.

The above once depicted the party of the right, the party of the rule of law, the party most dedicated to combatting a left ideology of dogma and repression. That party most dedicated to individualism, rationalism and self-interest has become a party of cowards fearful of deviation from mob thinking, from the idol of the tribe as Francis Bacon called it. Instead of a wall of separation between church and state, the desire is to have religion intervene in determining who can marry and preventing any woman from having an abortion. The religious question has returned like a typhoon or hurricane sweeping across the whole earth, as not any religion, but as a religion of dogma indifferent to facts, a religion of intolerance ready at hand to smear anyone who would dare tell the truth.

It is time to go back to the sources when religion and secular rationality were divorced from one another, even though at the time the main  contenders held up a belief not only in their separation, but also in their complementarity. We are witnessing the return of the political-theological alongside the return of a rising wave of antisemitism. Galileo was only a whisker away from the clergy. Spinoza and Grotius, Hobbes and Locke, practiced secular rather than religious theology where the key question was neither divine salvation nor revealed truth from on high, but truth observed directly and supported abstractly in service of improving life on earth. That was the secular agenda. That was the intellectual agenda. To battle fear and superstition, false news and institutionalized power. But what happens when the barbarians, when the deplorables, storm the gates and once again seize power?

How had the battlements built over such a long time become weakened? Did the modes of separation of the secular and sacred realms, that Galileo saw as complementary structures, contain deep fault lines that undercut the structure and strength of modernity? In America today, in Iran today, in China today, a right-wing machine is fighting with all its might and with a heavy hand to preserve an alternate reality that has little to do with what we see before our very eyes and through our very ears. And the process stinks to high heaven. The protection of life and liberty, the protection of the rule of law and, most importantly, the protection of the planet, have all been put at risk.

In the seventeenth century, society witnessed the overthrow of the clergy’s monopoly of public office. Those who came at the end of that process, the Quebecois, inverted the field and demanded a secular monopoly over positions of power, so revolted were they by the previous clerical monopoly. John Milton, the English poet, went to visit Galileo in his final sickly years. He would go back and write Areopagitica (1644) following Galileo’s death protesting against the state assuming the power of religious institutions to approve and license the publishing of books.  

This is true Liberty when free born men
Having to advise the public may speak free,
Which he who can, and will, deserv’s high praise,
Who neither can nor will, may hold his peace;
What can be juster in a State then this?

One need only look at Iran to see the effects of a religious dogmatic authority seizing power over the state to enforce group think. In America, those who oppose such a coup are called members of “the deep state” for they are at heart believers in a state free from the clutches of dogmatic religion and an attitude of mindblindness. They do not believe that the way of avoiding deep and intractable divisions in views of the world required re-establishing religious-based coercion by imposing a common faith imposed on reality rather than drawn from it. The goal of the secularists to divide and conquer by splitting the “believers” into a multiplicity of sects which would engage in a free market of beliefs, a market they were convinced would protect the secular order. It did not. It has not. Why?

The concept of sovereignty influences every problem in contemporary legal philosophy. The modern doctrine of a determinate authority within the state, has its origin in the seventeenth century. At the time of the rise of powerful post-Reformation states, and the destruction of the unity of Christendom, Grotius propounded a theory of sovereignty based on a doctrine of natural law independent of the will of God and deriving its existence from the nature of man as a rational being who seeks a society consonant with his intelligence. Reason provided the basis for justice in the state and justice among states, both in peace and in war.

Hugo Grotius (Huig de Groot 1583-1645) analyzed the concept of sovereignty in his book De iure belli ac pacis libri, tres, On the Law of War and Peace (1625). Sovereignty denoted the legally supreme will within a state as well as the political authority in dealing with other states. Grotius set forth a legal basis for the Netherlands (actually the twelve northern provinces of the Netherlands) to win their freedom and independence from the Spanish Empire. A doctrine of a right of rebellion explained the nature of sovereign authority within the state; a doctrine of just war was used to explain the nature of the sovereignty among states. Sovereignty, internally considered and defined by will and externally considered defined by consent, derives its content and meaning, and its force of obligation, from the nature of man, from the law of nature, hence, natural law theory.

The doctrine of self-determination was used to set boundaries to that self-determination. State sovereignty worldwide justified the security of national navies on the high seas. The governance of the oceans and the sea lanes of the world could not become part of a state’s territorial jurisdiction in order to retain the idea of freedom of the seas critical to Dutch international trade. When Dutch merchants in present-day Singapore in 1604 seized the cargo of the Portuguese, with whom the Netherlands was at war because Portugal was allied with Spain, and the Netherlands had been engaged in an on-again, off-again Eighty Years War with Spain, Grotius took up the case of the Dutch merchants to attack the more fundamental problem of the monopoly on trade exercised by imperial powers.

Grotius inverted the traditional argument that based a case primarily on power. If there was to be freedom on the high seas, there had to be a complementary freedom within the boundaried states that used those seas, that is, a doctrine of self-determination and territorial sovereignty. Then when states were in conflict, there had to be a law governing that conflict, rules of war, or a just war doctrine, that was the product of agreement amongst those states. The terms of international trade could not be set unilaterally by an imperial power.

The debate begins with imperial sovereignty, the previous classical doctrine that victory in war and de facto control determines sovereignty, a position strengthened by a concert of powers agreement. Territorial sovereignty runs counter to that doctrine, countering the belief in divine promise as evidenced by the real exercise of power in this world. Instead, the rights of states exist because states are earthbound and control a bordered territory and not because of divine authority evidenced by the extent of state power and the way a state is able to exercise its power around the world. Legitimacy is not determined by power, supposedly divinely sanctioned, but by the root of that power in a sense of a people belonging to a specific territory and the exercise of control over that territory. State sovereignty as self-determination and the autonomy of a nation state were comparable to the right of a person to be self-governing and to the ownership of private property vis-à-vis other persons.  

What about territory not under the jurisdiction of a recognized state? Using Roman law, states could acquire territories by cession, control of a territory over time, by inheritance or by conquest. This doctrine of sovereignty allowed competing empires to take control of non-European territory in a more or less orderly manner on the principle of reciprocity without natural law intervening to hand sovereignty over to indigenous peoples, as Britain did initially in its treaties with Native Americans. Ironically, the American War of Independence can be viewed as war between modern imperialism, which did not recognize the rights of indigenous peoples, and classical imperialism which did. That is, it became a war between the colonists who wanted to expand into the “Indian” territories and Britain which insisted that these incursions were contrary to the treaties Britain had signed.

Grotius had studied treaties with non-Europeans, specifically East Indian Sovereigns who allied with European powers. Hence, there had to be an international “Law of Nations.” As the modern doctrine of sovereignty evolved, natural law justification gave way to positive law, that is, law is what states say it is. But that gets us ahead of our story. For Grotius, the foundation was natural law that determined sovereign law and the use of reciprocal agreements to enforce that law. Peace settlements were considered mutual agreements rather than just inscribing the terms of surrender of a defeated party.

Grotius insisted that there had to be a common law among nations that determined whether going to war was justified and the rules for conducting a just war. Going to war had to be justified by reason and just cause – self-defence, reparation of injury or punishment. Further, the conduct of war was itself boundaried and certain conduct was declared to be illegal. Natural law bound all peoples and nation states which could not be trumped by local customs. One of the laws of the conduct of war declared that only sufficient strength was justified proportionate to achieve victory.

Was that natural law sanctioned by religious authority, in the case of Protestantism, by the Bible?

With the help of Alex Zisman

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