Tuesday, September 10, 2013

Parry on the Grotian Tradition in International Law

John T. Parry, Lewis & Clark Law School, has posted What is the Grotian Tradition in International Law? which is forthcoming in volume 35 of the University of Pennsylvania Journal of International Law.   Here is the abstract:    
Recent scholarship in international law – for example, recent books by Mary Ellen O’Connell and Michael Scharf – relies on the idea of a “Grotian tradition” or of “Grotian moments” to provide normative foundations for significant parts of the contemporary international legal system. Despite the significant value of this scholarship, the underlying claim of a Grotian tradition is deeply flawed. The Grotian tradition itself was invented by mid-twentieth century scholars such as Hersch Lauterpacht to serve the goals of post-war liberal internationalism. There is no reason to believe that there is any more longstanding and normatively attractive tradition of engagement with the ideas of Hugo Grotius in international law and/or international relations. Indeed, many of the foundational ideas of Grotius’s own system of international law are deeply at odds with liberal or progressive approaches to contemporary international law.

“What Is the Grotian Tradition in International Law?” examines the claims made by and on behalf of the Grotian tradition and exposes the ways in which it fails to match up with the actual life and writings of Hugo Grotius. The article historicizes Grotius to demonstrate that much of his work – as propagandist, government official, attorney for the Dutch East India Company, and author of The Law of Prizes, The Free Sea, and The Rights of War and Peace – functioned to legitimate a violent and imperial conception of international law that served the interests of a simultaneously vulnerable and expansionist Dutch Republic. The result is not simply that the Grotian tradition is a fraud, or that Grotius is an inapt figure for any desirable conception of international law. Even more, a behind the scenes account of the Grotian tradition serves as a cautionary tale: international legal argument and international legal theory should reject the effort to claim deep historical foundations for the goals associated with liberal and progressive approaches to international law. A more self-conscious and critical stance holds out far better prospects of advancing those goals.