CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

Writing against the backdrop of a states system that began, substantively, to emerge
from the Religious Peace of Augsburg in 1555 and would be crystallised (after Grotius’
death) by the Peace of Westphalia (1648), Grotius extensively codified and brought
coherence to the work of many predecessors. Drawing a parallel between war and the
juridical remedies within states, Grotius considers the maxim ubi jus ibi remedium
(where there is a right there must be a remedy); in other word states can only have rights
if they have due recourse against transgression. From this he deduces that we must first
determine the scope and extent of the legal rights of states. 148
Echoing Aquinas, Grotius notes that a private citizen whose rights are violated has
recourse to juridical remedy but for states such higher authority is lacking, thus
justifying recourse to war as a means to seek redress. Nevertheless, war is undertaken
within the context of (international) law, not in abeyance of it:
Least of all should be admitted which some people imagine, that in war all laws
are in abeyance. On the contrary war ought not to be undertaken except for the
enforcement of rights; when once undertaken it should be carried on only within
the bounds of law and good faith. Demosthenes well said that war is directed
against those who cannot be held in check by judicial processes. For judgements
are efficacious against those who feel that they are too weak to resist; against
those who are equally strong, or think that they are, wars are undertaken. But in
order that wars may be justified, they must be carried on with not less
scrupulousness than judicial processes are wont to be. 149
First addressing the issue of when war might be lawful in Book One, Chapter 2
(‘Whether it is ever lawful to wage war’) of De Jure Belli ac Pacis, Grotius concludes it
is not contrary to the principles of natural law or reason that any society should look
after its own interests ‘provided the rights of others are not infringed’ so ‘use of force
which does not violate the rights of others is not unjust.’ 150 Much of the second book of
De Jure is then devoted to discussion of when force can thus be legitimately used, i.e.
without violating the rights of others. Amongst the causes he lists as clearly unjust,
Grotius includes preventive wars against the increasing power of rival states, war for
autonomy over or subjugation of others and for religious motives (already effectively
banned by the Peace of Augsburg). Going on to enumerate a range of doubtful cases, he
argues for caution when opinion is balanced, the presumption always being in favour of
peace. Grotius’ discourse on jus ad bellum is concluded with an admonition, after
Suarez, against ‘rash’ war even when the cause is just.
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