As the historian on this panel, I have been asked to historicize Grotius’s legacy. I will first offer some historical context about Grotius the person. Who actually was Grotius? What was the historical moment in which he wrote? And what are some of the salient features of his thought? I will then turn to the history of Grotius the legend and ask why he has endured as a mythical figure in our field.

I will begin with Grotius the person. Grotius was from the Dutch province of Holland and lived during the late-sixteenth and early-seventeenth centuries. It was a moment of transitions in Europe. The Protestant Reformation was playing out. Trade and conquest were bringing Europeans into expanded contact with non-Europeans throughout the world. The idea of the modern state as an impersonal “supreme political authority within a defined territory” was relatively fresh.Footnote ¹ It was also a period of religious and dynastic wars. Grotius was born soon after the Dutch provinces rebelled from Spain, and he died just a few years before the Thirty Years’ War concluded at Westphalia.

Grotius was a prodigy, and he experienced a meteoric rise in law and politics while also taking up humanist studies and theology. Early in his career, the Dutch East India Company (VOC) asked him to write a defense of the company’s commercial and military activities in East Asia, including privateering. This assignment was representative of the many ties that Grotius had to the VOC, which was at the center of seventeenth- and eighteenth-century European expansion. Grotius eventually found himself on the wrong side of an internal Dutch political struggle. He was imprisoned, albeit in a relatively comfortable arrangement that secured him time to read and think. He then escaped to France where he would spend most of the remainder of his life. It was while in exile in France that he wrote The Rights of War and Peace (1625) and later revised it, with the hope of rehabilitating his standing among political elites back home in the Netherlands. The treatise is long, jammed with citations, and strikes many readers as, frankly, quite tedious.

In an exercise of selective curation rather than general summary, I will highlight just two points from Grotius’s thought that may be useful for scrutinizing his legacy. First is his notion of individual morality. Grotius’s theorizing began with a capacious right of self-preservation (which encompassed the right to both defense and the satisfaction of one’s needs) along with a duty to avoid wanton injury. From this starting point, he then deduced additional natural rights and natural laws. The structure of individual morality, on his account, thus proceeded from rights to laws by reason. Accordingly, he believed—and famously declared—that these natural laws would be true even if there were no God. (Though he definitely believed in God!) It is worth observing how thin this conception of individual morality was given its foundation in self-preservation. He believed violence was legitimate to protect one’s rights, for example, and even that one could give away all of one’s rights and enslave oneself. A second aspect of his thought worth highlighting is that he analogized between autonomous individuals and autonomous states. His understanding of individual morality and its rational structure thus transposed to interstate relations. As a result, he ended up with a system of international legal norms anchored in human reason, yet it was also one that accommodated interventionist and expansionist activities by states, empires, and corporations such as the VOC.Footnote ²

Next, I will turn from Grotius the person to Grotius the legend. Why has Grotius endured as a mythical “father” figure for international law?

To begin with, Grotius has been legitimately influential. He was immediately and widely read. The Rights of War and Peace went through dozens of Latin editions, was translated into vernacular languages, and spread with the industrial revolution in printing and communication technologies. Both George Washington and George III had copies, for instance, which they used as practical manuals for governance and war.Footnote ³

But where did this idea of him as the “father” of international law come from? My sense is that the mythologizing of Grotius as the discipline’s founding figure developed gradually and crystallized around the turn of the twentieth century. In the eighteenth and nineteenth centuries, the history of international law was largely presented as a history of treatises on the law of nations. While Grotius’s treatise was not typically described first in the succession of treatises, he stood out to observers as distinctly influential because he was succeeded by a generation of European theorists who took heightened interest in the law of nations during a period of global expansion. This generation learned the law of nations from Grotius, and then cast him as their interlocutor as they developed their own theories.Footnote ⁴ By the turn of the twentieth century, modern international law was emerging and professionalizing, including the establishment of the American Society of International Law (ASIL). As international lawyers sought to define and legitimize their professional discipline, they went looking for founding fathers. For example, the 1899 Hague Peace Conference included a much-touted Grotius commemoration. The Dutch, who were hosting the conference, were proud to trace recent milestones in international law back to their own compatriot. And Americans, who hosted the Grotius commemoration, were experiencing “Holland mania” back home that reflected the confluence of constitutional veneration and association of the U.S. founding with Dutch influences.Footnote ⁵ By the mid- to late-twentieth century, Grotius had come to stand for the idea of an international community governable by at least a minimum set of universally intelligible norms. That is, Grotian rationalism had come to represent a sort of middle way between the anarchy of Hobbesian realism and the utopia of Kantian cosmopolitanism.Footnote ⁶

It is this formulation of Grotius as a middle way in international relations that many seem to find attractive in the Grotian legacy. We need look no further than to what was said during ASIL’s inauguration of the Grotius Lecture series in 1999. In his inaugural remarks, Judge Weeramantry of the International Court of Justice praised Grotius’s “vision of an ordered relationship among nations … based not on religion or sword, but on human reason and experience.”Footnote ⁷ The judge’s formulation of the Grotian vision captures well what I take to be Grotius’s enduring allure.

In recent decades, however, there has been a wave of important revisionism that de-mythologizes Grotius and returns us to Grotius the person. At the 1999 inauguration of the Grotius Lecture series, Judge Weeramantry said that, although the world beyond Europe was a “blind spot” in the Grotian vision, the European imperial enterprise was “built upon [a] misreading of Grotius.”Footnote ⁸ But recent scholarship suggests that the imperial enterprise was in fact concordant with Grotius’s theories. On this view, European imperial practices—such as the Dutch colonization of South Africa whose legacy Professor Tendayi Achiume discussed in this year’s Grotius Lecture—reflected not a misreading but rather a reading of Grotius. As Grotius has been read in historical context, a less mythical Grotius has emerged as an apologist for the ideology of commercial empire. This introduction to a less attractive Grotius is in fact a re-introduction. As far back as the eighteenth century, after all, Kant dubbed Grotius a “sorry comforter” for perpetual war.Footnote ⁹

Judge Weeramantry, who was born in a British colony, was not naïve about Grotius’s links to European imperialism. He recognized that Grotius’s work, like international law generally, could be deployed to serve injustice as well as justice. But he chose to emphasize in Grotius’s work what he saw as the “overarching spirit of humanism that animated it.”Footnote ¹⁰ For Judge Weeramantry, there were “many Grotiuses” (plural) based on what the reader takes away from his work.Footnote ¹¹

Indeed, in the end we are left with at least two versions of Grotius. There is the historical figure whose life and thought were intertwined with early modern European imperialism in unattractive and complicated ways that are still being unpacked. And there is the symbolic figure who represents a middle path between anarchy and utopia that still seems to serve as an alluring aspiration amid the besieged modern state of our international relations.

Grotius’s impact on international law is remarkable, not least because his influence has extended across four centuries. In De Jure Bellis ac Pacis Footnote ¹ and other writing, the jurist developed a robust foundation for principles we venerate today, affirming, for example, the equal rights of all persons and States under international law. But his legacy is decidedly mixed: Grotius also justified colonial conquest and slavery; neither subject was peripheral to his writing.

International law would later outlaw both practices. Why, then, is it useful to explore these features of Grotius’s writing today? There are many reasons, but I will keep it brief.

My work in the field of transitional justice has taught me it is vitally important to reckon with historic wrongs and their enduring legacies. As Tendayi Achiume suggested so eloquently in her Grotius lecture at this meeting, our tendency to construct a temporal separation between the past and present has the insidious effect of blinding us to the ways legally entrenched injustices of another time organize our lives today. To its credit, the American Society of International Law has not only recognized but acted on this insight by exploring how colonial legacies engage international law today and by examining its own history of exclusion.Footnote ²

I am now at work on an article that explores innumerable ways in which law, including international law, sanctioned and facilitated centuries of the transatlantic trade in Africans and brutish treatment of enslaved persons. As I began to research this piece, I kept coming across references to the views of Grotius on slavery, which he elucidated at a time when the slave trade was in high gear and poised to become even more extensive.

I did not expect this but should not have been surprised. As one scholar has observed, “One of the most obvious features of De jure bellis ac pacis is its relatively extensive discussion of the law of slavery.”Footnote ³ With chilling detachment, Grotius’s famous text justified several variants of servitudeFootnote ⁴ and systematically explored virtually every aspect of enslavement, from the status of children of enslaved personsFootnote ⁵ to such questions as whether and when enslaved persons were entitled to escape.Footnote ⁶

The crucial point to be made here is that Grotius provided “ideological support for the institution of slavery” at the very time it “was becoming important to the economies of maritime colonial powers.”Footnote ⁷ Put differently, his justifications for enslavement were influential just when European powers were especially keen to engage in the slave trade.Footnote ⁸ As legal historian John Cairns notes, moreover, well over a century after Grotius published De Iure Belli ac Pacis, his writing on slavery “provided strong” if unintended “support for black slavery in the American colonies of the European powers”Footnote ⁹ and informed the arguments of slaveowners in legal cases challenging specific instances of enslavement.

When we examine historical practices we now abhor, it is customary to ask if we can fairly judge past conduct by contemporary lights. Thus it is notable that Grotius’s approach to slavery was by no means compelled by contemporaneous views. For example, he justified capturing slaves in the course of a public, declared warFootnote ¹⁰ at a time when he “obviously realized that Europeans no longer routinely enslaved captured soldiers or hostile citizens.”Footnote ¹¹

In line with his views on slavery, Grotius elucidated grounds that, in his view, would justify colonial conquest.Footnote ¹² Historian Richard Tuck has framed the point starkly: “Grotius (contrary to his popular reputation) supported the infliction of violence on barbaric peoples.”Footnote ¹³

Not incidentally, Grotius developed his most disturbing claims while advising the Dutch East Indies Company, in which his family was deeply involved.Footnote ¹⁴ In Tuck’s words, it was thus hardly surprising that Grotius “was led to write a major apology for the whole Dutch commercial expansion into the Indies.”Footnote ¹⁵ Tellingly, when the Dutch began to annex territory in the non-European world, Grotius developed his thinking in a new direction—one that “neatly legitimated a great deal of European action against native peoples around the world.”Footnote ¹⁶

Noting the relatively recent recognition of what she calls “the imperialist framework of Grotius’ thinking,” Martine Julia van Ittersum asks reprovingly, “[W]hy did we get it so wrong for so long? How was it possible to dismiss Grotius’ incessant justifications of Western imperialism and colonialism as somehow non-existent or irrelevant?”Footnote ¹⁷ To these I would add a more pressing question: How should we address today’s legacies of the ruinous conduct Grotius helped justify?