Grotius in the Science of Law Roscoe Pound The American Journal of International Law, Vol. 19, No. 4 (Oct., 1925), 685-688. Stable URL: btp//links jstor.org/sic¥2sici=0002-9300% 281925 10%2919%3A4%3C68S%3AGITSOL%3E2.0,CO%3B2-X The American Journal of International Law is cusrently published by American Society of International Law. ‘Your use of the ISTOR archive indicates your acceptance of JSTOR’s Terms and Conditions of Use, available at hhup:/www.jstororg/about/terms.hml. JSTOR’s Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at hup:/www jstor.org/journals/asi.huml, Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the sereen or printed page of such transmission, STOR is an independent not-for-profit organization dedicated to creating and preserving a digital archive of scholarly journals, For more information regarding JSTOR, please contact support @jstor.org. bupslwww jstor.org/ Wed Feb 23 20:24:45 2005GROTIUS IN THE SCIENCE OF LAW By Roscoz Pouxn Dean of Harvard Law School Tt has been customary to take Grotius’s book for the starting point of one of the best marked eras in the history of jurisprudence. Any account of the development of theories of justiee is likely to bogin the modern history of the subject with Grotius, and to put as a classieal epoch a period designated as “from Grotius to Kant.” Any account of theories of law is likely to set off a period from the revived study of Roman law in the Italian universities of the twelfth century to Grotius, and another from Grotius to the breaking up of the eighteenth century Iaw-of-nature school. In almost all accounts of the history of the seionce of law, Grotius stands as marking a turning point. ‘Apart from any special merits of Grotius’s work, itis not hard to see why this pivotal position in the history of jurisprudence has been accorded him. ‘Humanism and the revival of learning had relatively a belated effect on the science of law. Zasius tells us that after all other bodies of knowledge had shed their old clothes, jurisprudence remained clothed in her medieval rags. ‘The rise of nationalism after the Reformation affected jurisprudence slowly, and had decisive effect only in the third generation. In time, these influences ‘and the complete secularization of justice after the Reformation made them- selves felt in Inw in a liberalizing creative movement by which the medieval legal materials were made over into a law for the modern world. The eight- eenth century codes give form to the matured products of this movement. Tt began definitely in the seventeenth century and made the seventeenth and eighteenth centuries as clearly a classical age in legal history as the period from Augustus to the third century. Indeed the two periods have much in common, both in their characteristics and in their relation to the Iaw that ‘went before and the law that came after. ‘Thus Grotius wrote, as it were, at the psychological moment, not only for international law but for the science of law generally. At the end of the first, ‘quarter of the seventeenth century, the revival of learning, humanism, the Reformation, and the rise of modem nations and breakdown of the academic idea of a universal empire of all Christendom, had put their mark upon the law and the time was ripe for a juristié new start. A philosophical theory was called for, as has always been true in periods of growth and expansion, in order to give direction to the absorption of ideas and materials from out- side of the law, which is the chief agency of legal growth. As we look back over the period, the contrast between Inw and the science of law as they were at the end of the eighteenth century, on the one hand, and law and the science of law as they were at the end of the sixteenth century, on the other 635,686 ‘THB AMERICAN JOURNAL OF INTERNATIONAL LAW hand, is so profound that the book which stands at the turning point and was recognized during the two centuries of liberalization and expansion as par ‘zcellence the exposition of philosophical jurisprudence, may well seem to have been not merely a sign of the times, but a decisive factor. Yet it must be admitted that in a closer view there is not « little ground for discounting the prevailing opi Tt soon appears that Grotius had notable forerunners in the theory of international law, to whom, when one looks into the matter attentively, he seems to have added little. It turns ‘out that the divorce of jurisprudence from theology had been achieved be- fore him by the Protestant jurist-theologians of the sixteenth century. It becomes manifest that the theory of natural law which has gone by his name ‘was almost, if not quite, full fledged before him. One comesto doubt whether he did more than to state clearly and convincingly what was already, at the very least, in the air. Moreover, there has been a tendeney in recent times, even on the part of those who are of liberal juristic ereed and urge a renewed faith in creative legal science, to question the whole attitude and method of the seventeenth and eighteenth century natural law, and in consequence to disparage Grotius. Partly this is a phase of the reaction against rationalism in jurisprudence, which has gone along with the campaign against the formal logical methods and jurisprudence of conceptions through which the legal science of the nineteenth-eentury maturity of law gave to the law in action so many of the unhappy features of the strict law. Partly it has gone along, with the renewed quest for individualization in the administration of justice, involved in transition to an urban, industrial society. ‘That quest has always ‘turned men, in the first stages of the movement, to reliance upon men rather than upon precepts or conceptions or doctrines, and to a search for just results through magisterial feelings of right and justice and the individual ‘conscience of the judge. ‘Thus the demand for just results in conerete eauses, as contrasted with the nineteenth century indifference to conerete results provided the legal precepts applied were abstractly just—a demand growing out of the functional attitude characteristic of modern legal science—pro- duces impatience of abstract formulas of justice, and distrust of speculation as to the abstract justice of legal precepts, and suspicions of rationalistic ‘methods in every connection. In consequence, both the right and the left of modem jurisprudence have little use for Grotius. On the one hand, the orthodox historical and analytical jurisprudence regards the law of nature as definitely buried. On the other hand, the newer functional science of law is, thinking of a psychological natural law, or natural law rounded in the social seiences. But when one looks at the literature of jurisprudence since the publication of Grotius’s book, he must be impressed with the evidences of its wide and enduring influence with which he will meet on every hand, Leavinginterna- tional law wholly out of account, Grotius was dominant in the literature of natural law even well into the nineteenth century. In the English exposi-GROTIUS IN THE SCIENCE OF LAW 687 tions of the subject, Grotius is recognized as the chief authority from Black- stone (1765) to Lorimer (1880). Grotius is one of the chief authorities em- ployed by the founders of our American polity, and his ideas are to be found everywhere in our books on publie and constitutional law. In James Wilson’s lectures, in Kent’s Commentaries, in Story on the Constitution, Grotius is constantly cited and his ideas enter into the fundamental juristie framework. For example, the idea of “obligation of contract” and the conception of “contract” in that connection as ‘legal transaction,” instead of giving the term the narrow meaning which it bears in our everyday law, are traceable in large part to Grotius. ‘Through Kent and Story the ideas of Grotius en- tered into our classical juristic theory, so that our Bills of Rights have in ‘effect put a content of the common-law rights of Englishmen, as declared by Coke, into the philosophical mold of the natural rights of men as given shape by Grotius. Again through Kent and Story, Grotius entered into much of our thinking in more than one feature of equity and of commercial law. For example, in Story on Equity Jurisprudence, in Story on Partnership, in Story’s well-known opinion in Bright v. Boyd, Grotius is cited, and his ideas form an essential element in the result in connection with more than one doctrine of the first importance which has become a settled part of Anglo- American common law. Most of all, through the adoption of Grotius’s ideas in the philosophical part of the first book of Blackstone, they entered into the elementary education of American lawyers for at least a century and a half, and their influenee is to be seen in American decisions on due process of law to this day. The picture of what law is, and of what the legal order should be, and hence of what rational legal precepts should be, which is the background of judicial interpretation and application of due process of law, is largely Grotian. Moreover, the Grotian theory of rights held the ground in one form or another until the middle of the last century, and however seventeenth and eighteenth century natural law may have been repudiated by the historical jurists of the nineteenth century, the Grotian theory was an ingredient of the first importanee in what is still the orthodox theory of legal rights. ‘A book which has so long, so widely and so profoundly affected both juristic thinking and the dogmatic Iaw must have much more intrinsic ‘quality than recent crities of Grotius have been willing to acknowledge. In truth one may scarcely doubt that it is rather the alien spirit of the revolt against juristie logic, as it got shape in the scholastic domination of legal science, and was developed in the nincteenth-century maturity of law, and the reaction from rational development of legal dogma so as to look only at abstract justice and ignore conerete applications—it is rather the spirit of ‘this revolt from the legal science of the Inst century than any inferiority of Grotius which has dictated the attitude of recent critics. Unless all signs fail, we are on the eve of another era of creative juristio activity. In such an era, as in like periods of legal history in the past, we688 ‘THE AMERICAN JOURNAL OF INTERNATIONAL LAW ‘must fall back upon general considerations of what is reasonable, Indeed the social utilitarian approach to the problems of today, allowing for dif- ferences of terminology and the advanee of the social sefences in the past century, isin spirit substantially Grotian. We must turn to rational specula- tion, as ed from the apocryphal “reasons” of the nadir of philo- sophical jurisprudence and the formal logie of the jurisprudence of concep- tions. As we learn better methods with the progress of the newer science of law, and find better agencies of individualization than the individual sense of justice ofthe individual magistrate, renewed respect for the great book of the juristic age of reason is likely to result.