Contents.
Introduction...................................................................................... 3
Chapter I............................................................................................ 4
Chapter II.......................................................................................... 7
Chapter III....................................................................................... 12
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Conclusion...................................................................................... 15
Bibliography................................................................................... 16
Introduction
Hugo Gratius, a scientist and a lawyer from Holland, lived from 1583 to 1645. In his famous treatise “The Three Books on the Right of War and Peace”, published in 1625, he depicted the struggle of the Dutch capital for freedom at the sea. He is considered to be the founder of the bourgeois studies of the international law and is one of the representatives of the big bourgeoisie as a scholar of law at an early stage of its development during the dissolution of feudalism in Western Europe and the first large revolt of bourgeoisie.
This book by Gratius is more or less a systematical report of the basic theories of international law, which were common for that period of evolution from feudalism to capitalism. It was for a long time one of the most important books for diplomats.
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According to his beliefs, Hugo was a representative of the period of transformation from feudalist to bourgeois state. His ideas received wide spread and founded the basement of further development of the international law, because they expressed real conditions of development and political demands of the newly-forming class of bourgeoisie to the ruling feudal party. I must specially note the progressive character of some of the Gratius’s ideas in the sphere of the international law that had a strong influence to modern international relations. Hugo Gratius, being a bourgeoisie theorist on its early stages, denied the opinion that force makes all the decisions in the international relations. He thought that law and justice should be number one in international relations…
But we must not forget that the progressiveness of his ideas was inconsistent and limited by the narrow frameworks of the bourgeois law views. It is necessary to note that modern bourgeois ideologists renounce the principles promoted by the ancestors in 17 – 18 centuries when bourgeoisie was fighting against feudalism.
Chapter I
Hugo Gratius was on of the representatives of the leading (in 17 – 18 centuries) school of common law and treaty theory of state origins. The school expressed the basic demands of bourgeoisie in its struggle with feudalism; its theoretical basement was outlook, turned out as a result of the revolution in natural history, reformation, and a bundle of ideas, left from humanism in 15 –16 centuries.
It must be noted here that although the school had a common theoretical base it was not homogeneous. It had lots of trends, which differed from one another by phases of bourgeoisie development, stages of her struggle with feudalism, quantity of different class’s representatives in a state, and differences in bourgeoisie itself, because different groups had different opinions on implementing their demands. These differences can be seen when answering the questions on practical implementation of the ideas of common law, ex. Who is the bearer of sovereignty: people or monarch, which form of government is the best for human nature, etc.
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The problem of the state origins – a theoretical question – had also different answers. They all agreed that before state there was a so called “natural condition”. But what was this “natural condition” was a point of debates. For one of the theorists it was a realm of unlimited freedom, wild anarchy, leading to war of “all against all” (Hobbes); for others – a peaceful idealistic state of freedom and innocence, “Golden Age” (Rousseau); others thought it was unlimited personal freedom (Loch).
For many preachers of this theory “natural condition” was a philosophical dogma or, as Golbach said, fiction. But this fiction helped ideologists of bourgeoisie to criticize pre-capitalistic social and political regime and to prophecy the victory of bourgeoisie. “In this society… - wrote Marx – an individual is free from natural bonds, etc., that in the past made him belong to a certain limited human community.”
Theorists of natural law consider state as a result of a juridical act – Treaty of the society , of people’s free will.
The idea of natural law and treaty state origins can be found in Greek and Roman philosophy and works, and in the works of feudalism scholars in middle ages. But in 17 – 18 centuries these ideas became more developed with some peculiar features, because they lose theological context common for medieval scholars, and naïve naturalism of ancient ones, because some of them considered animals as subjects of law. But the main thing is that a theory of international law of the 17 – 18 centuries had different class’ essence. It expressed strong demands of bourgeoisie, struggling hard for on its way to power.
The views on the contents of the Treaty were also different. Hobbes calls a treaty via people an act by which all population loses all natural freedom and rights in monarch’s favour and permit him an unlimited power upon them. Loch thought that an individual who enters this society via treaty loses his rights only partly (right for self-help, self-defense when something is threatening his natural rights), in favour of the other part: private property and freedom. Golbach defined the Treaty of the society as a bundle of conditions necessary for organizing and saving society. Denny Didreau thought of the Treaty of the society a bit differently. “People, – he wrote, – quickly understood that if they continued using their freedom, their power, their independence… then the situation of every single person would be even more miserable, than that if he lived separately; they realized that every person has to sacrifice a part of his natural independence and to submit to will, that would be the will of the whole society and would be, so to say, common center and a point of unification of all their wills and powers. That is the origin of rulers.”
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There is no need to say about theoretical unsoundness of this concept of the school of natural law. Even in the 18 century some bourgeois philosophers found the antihistorical essence of these views. For example, Jum says that natural condition is a fiction of the philosophers. State emerges not as a result of a treaty but historically. Some also said that people could not invent a term “state”, not knowing the practice. The first Russian law professor Semen Jefimovitch Desnitskiy abruptly criticized “natural law” and mostly Pouffendorf. “The works of Pouffendorf – he said – was unnecessary, because writing of states of humankind that had never existed, is a very unworthy deed.”
Chapter II
It is important to show which natural conditions were the soil for such an illusion of natural state and treaty state origins, and to show the role and importance of this idea in the class struggle of that time.
Marx said that the individual who enters the society union via treaty, as seen by theorists of the school of natural law, is a result of descended feudal society forms and developed in the 16-century new productive powers. A great mistake of natural law theorists was that in their opinion individual has not developed historically, but set up by nature itself. Features common for bourgeoisie were proclaimed as common for mankind.
But treaty of the society was regarded by many adepts of natural law not as a historical fact but as a logic ground, hypothesis for explaining the difference between state and natural condition, i.e. between state and anarchy for explaining one or the other form of state, ex. monarchy (Gratius), democratic republic (Rousseau). It must be added that in those historical conditions the theory of the treaty of the society had progressive meaning for struggle with feudal theories, ex. theocratic concept of state origins and patrimonial theory, which viewed the state as property of the monarch.
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A statement about the dualism of law is common for the treaty theory. It differentiates the natural[1] and positive law, i.e. given by the legislation of a state[2] . Natural law is prior to society and state; positive law – to creating a state.
This dualism in notions of law is also depraved feature in the theory of natural law, because the metaphysical way of thinking, common for bourgeois ideologists, was not able to explain the unsteadiness and variety in the law.
For the ideologists of bourgeoisie it is common to consider law and state as an expression of the people’s will. It is of course wrong, from or point of view. But in those historical conditions of struggle against feudalism and absolute monarchy, this illusion had certainly a progressive sense, because with the help of this idea bourgeoisie was achieving abolition of the system of privileges and setting up a representative system in state system.
Hugo Gratius is one of the earliest bourgeoisie ideologists and a representative of school of natural law. His views were formed at the time when the process of formation of bourgeois state in Netherlands had not finished yet, and the British one was only starting. It must be noted that the struggle of the Dutch against Spanish king Phillip II made a great influence on Gratius. The problems of international law, examined by him were set up by the bloody 30-years war, competition between Holland, England and Spain and their fighting for the leadership at the sea.