Reading the title of this post, some of our readers less familiar with international legal thinking, might hope it is dedicated to the latest punk-rock sensation. And while I do agree that “Hugo Grotius and the animals” would actually be a pretty good name for a band, I might have to disappoint them and confess that my intention is only to understand the relationship one of the main legal thinkers of international law entertained with animality.
Hugo Grotius (1583-1645) is considered to be one of the founding fathers of international law. Published in 1625, De jure belli ac pacis (On the Law of War and Peace) is his magnum opus and is usually said to be a cornerstone of international legal thinking. To the best of my knowledge, though, the question of the relationship this founding father had to the animal reign has never been raised directly in international legal scholarship.
That is a shame, because even though his famous book is centred on the questions of war and peace, the Dutch philosopher actually writes a great deal about the animals. It must be reminded that legal scholar was, at the time, a rather different job. The main mission of the legal thinker was indeed not to understand what positive (international) law was, but to explain what (international) law ought to be according to the law of nature. It is therefore no surprise that, in an effort to describe the “laws of nature” Hugo Grotius rests heavily on the observation of the animals.
This is how he generally proceeds. First, he isolates a question such as: “Is war authorized by natural law” or “Can I seize my enemy’s properties”. He then moves on to an observation of nature to see what the “natural” response to the question is. Finally, he defines what the proper human behaviour should be. Should it follow the example of nature (usually in the name of human’s belonging the animal reign)? Or should it follow a different path (usually in the name of “reason” that sets the humans apart from the “beasts”). This “observation” of nature leads Grotius to various conclusions regarding both humans and the animals. Three statements are of particular interest for those working in the field of International Animal Law.
Statement n°1: Animals have no rights
Even though it is hardly the main focus of his book, Hugo Grotius takes the time to explicitly limit to the human species the “right to have rights”.
“The distinction found in the books of the Roman Law, assigning one unchangeable right to brutes in common with man, which in a more limited sense they call the law of nature, and appropriating another to men, which they frequently call the Law of Nations, is scarcely of any real use. For no beings, except those that can form general maxims, are capable of possessing a right, which Hesiod has placed in a clear point of view, observing “that the supreme Being has appointed laws for men; but permitted wild beasts, fishes, and birds to devour each other for food.” For they have nothing like justice, the best gift, bestowed upon men” (On the Law of War and Peace, Chap. I, XI)
Statement n°2: Animals are always a (potential) human property
Hugo Grotius underlines that animals are not only deprived of rights. They are also a potential human property. First, as a war prize:
“The next matters to be noticed are those things, which though not yet made property, may be reduced to that condition. Under this description come waste lands, desert islands, wild beasts, fishes, and birds. Now in these cases there are two things to be pointed out, which are a double kind of occupancy that may take place; the one in the name of the Sovereign, or of a whole people, the other by individuals, converting into private estates the lands which they have so occupied. The latter kind of individual property proceeds rather from assignment than from free occupancy. Yet any places that have been taken possession of in the name of a sovereign, or of a whole people, though not portioned out amongst individuals, are not to be considered as waste lands, but as the property of the first occupier, whether it be the King, or a whole people. Of this description are rivers, lakes, forests, and wild mountains” (On the Law of War and Peace, Chap II, IV)
Hugo Grotius also underlines that he wants to go further than other previous systems that recognized a right to liberty for certain wild animals. According to him, this animal freedom must cede before a natural human right to property:
“As to wild beasts, fishes, and birds, it is to be observed that the sovereign of the respective lands, or waters where they are found, has a legal right to prohibit any one from taking them, and thereby acquiring a property in them. A prohibition extending to foreigners, as well as subjects. To foreigners; because by all the rules of moral law they owe obedience to the sovereign, for the time during which they reside in his territories. Nor is there any validity in the objection founded on the Roman Law, the Law of nature, or the Law of nations, which, it is said, declare such animals to be beasts of chace free to every one’s hunting. (…) For although the civil law can enjoin nothing which the law of nature prohibits, nor prohibit any thing which it enjoins, yet it may circumscribe natural liberty, restraining what was before allowed; although the restraint should extend to the very acquisition of property, to which every man at first had a right by the law of nature”(On the Law of War and Peace, Chap II, V)
Statement n°3: Animals fight (and therefore war is potentially justified)
A final statement made by Grotius is the fact that war is potentially justified in the name of animal tendency to fight:
« So far from any thing in the principles of nature being repugnant to war, every part of them indeed rather favours it. For the preservation of our lives and persons, which is the end of war, and the possession or acquirement of things necessary and useful to life is most suitable to those principles of nature, and to use force, if necessary, for those occasions, is no way dissonant to the principles of nature, since all animals are endowed with natural strength, sufficient to assist and defend themselves. Xenophon says, that every animal knows a certain method of fighting without any other instructor than nature. In a fragment of Ovid’s, called the Art of Fishery, it is remarked, that all animals know their enemy and his means of defence, and the strength and measure of their own weapons. Horace has said, “the wolf attacks with its teeth, the bull with its horns, and whence is this knowledge derived but from instinct?” On this subject Lucretius enlarges, observing that “every creature knows its own powers. The calf butts with its forehead, before its horns appear, and strikes with all33 imaginable fury.” On which Galen expresses himself in the following manner, “every animal appears to defend itself with that part of its body, in which it excels others. The calf butts with its head before its horns have grown, and the colt strikes with its heel before its hoofs are hard, as the young dog attempts to bite before his teeth are strong.” The same writer in describing the use of different parts of the body, says, “that man is a creature formed for peace and war. His armour forms not an immediate part of his body; but he has hands fit for preparing and handling arms, and we see infants using them spontaneously, without being taught to do so.” (On the Law of War and Peace, Chap II, I)
First, the refusal of animal rights and recognition of animals as potential human property is quite conform to what one might have thought. It has to be reminded that Hugo Grotius, aside from being a legal thinker, was also a Christian theologian in a 17th century church that drew a clear line between humans and animals. The position of Hugo Grotius is thus in line with the one of his century; a century that he shares with René Descartes, who stayed famous for his views on the “animal machine”(Read more (FR)).
One is not too surprised either by the oversimplification of what animal behaviour actually is. It is only very recently that serious research on animal communication and culture has been conducted (see last week’s post on cetacean culture). Before that, it was very common to use “common sense” to summarize what “animals do” or what “nature is”.
Finally, one will not be so surprized either by the incapacity of Grotius to draw a clear line between animal behaviours that should inspire human rules and animal behaviours that should be rejected in the name their “animality”. The line is still as difficult to draw today as it was in the 17th century.
As to the point where one might wonder if it is worth drawing at all.
Vincent Chapaux – February 2015