The teaching of Hugo Gratius of war and peace

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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.

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 peoples 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.

It must be noted that in the system of Gratiuss views there is no such political sharpness as is common for Rousseau or even for Loch. He expresses the interests of such groups of bourgeoisie, which were able to make a deal with feudalism. He is a monarchist according to his beliefs and opposes the idea of peoples sovereignty. He also doesnt want to throw away religious world outlook.

Hugo Gratius differentiates law as natural and voluntarium. Natural law according to him is a deed, which is considered morally disgraceful or morally necessary, according to whether it contradicts the nature or not; thats why this deed is forbidden or allowed by the God himself, the creator of the nature. Natural law is so stable that cannot by changed by God himself. He also spreads the natural law to everything, which is dependable from the humans will, and also consequences, which flow from the acts of the humans will. Natural law sometimes depends on the time. For example, the right to private property is ser up by the humans will and thats why natural law prohibits the theft of it. That is, the theft is prohibited by the natural law.

The common possession was natural until private property was established. The realization of your right with the help of force was common before setting up civil laws.

The law, set up by will, according to Hugo Gratius can be human or godly law. In its turn, human law can be either internal law of a state or humans law in a narrower and at the same time broader meaning. Internal law of the state flows from the civil power, ruling in a state. Humans law in a narrower meaning does not flow from it. As for humans law in a broader meaning, it is the law of peoples (jus gentium), which has a power from the will of all living peoples or most of them. Speaking of a law set up by God Gratius asserts that it flows right from the Gods will.

: 27/02/2010