[New publication] Grotius’ ‘rule of law’ and the human sense of justice; an afterword to Martti Koskenniemi’s foreword by Janne E. NijmanPublished 21 April 2020
The latest issue of The European Journal of International law (EJIL), one of the world’s leading international law journals, contains the article ‘Grotius’ Rule of Law and the Human Sense of Justice: An Afterword to Martti Koskenniemi’s Foreword’, by Asser Institute academic director and professor of History and Theory of International Law, Janne E. Nijman.
In the article, Nijman responds to legal scholar Martti Koskenniemi, who turned to rereading Dutch jurist and legal scholar Hugo Grotius (1583 -1645), as a sequel to his 1990 and 2009 EJIL contributions on ‘the politics of international law’. In Imagining the Rule of Law: Rereading the Grotian ‘Tradition’, Koskenniemi describes how the position of Hugo Grotius as ‘father’ of international law, results from the way later lawyers have appreciated Grotius’ suggestion that humans have a tendency to subordinate themselves to ‘rules’ that is lacking in other living creatures.
According to Koskenniemi, Grotius uses this human tendency to explain the trust and confidence with which members of good societies agree to live in peace and expect mutual benefits from cooperating with each other. Koskenniemi asserts that the idea of the ‘rule of law’ that emerges in Grotius’ masterpiece De iure belli ac pacis – On the Law of and War and Peace (1625), then serves as a powerful justification of the government of a post-feudal, commercial state.
A sense of justice
While Nijman agrees with Koskenniemi that Grotius’ ‘rule-of-law’ conception in De iure belli ac pacis may help us understand the current backlash against the international rule of law, she suggests an alternative reading of Grotius’ rule of law-conception, based on a different reading of Grotius’ reworking of the three meanings of ‘ius’ in De iure belli ac pacis.
Nijman suggests that Grotius’ understanding of human nature, ‘which ultimately grounds this conception of the rule of law,’ helps us see how the human inclination to subject ourselves to law, is related to a sense of justice.
The lacking of justice in the current international law system, Nijman argues, could be responsible for the current backlash against the international rule of law. Nijman accordingly explains this backlash as an institutional crisis as well as a crisis of selfhood.
Nijman writes that Grotius’ understanding of humans, and of the importance of corrective and distributive justice as components of the international rule of law, ‘helps us see the cry ‘take back control’ as ‘indignation’ about the (social) injustices and global inequality that international institutions (re)produce and as a cry for just international institutions’.
According to Nijman reading Grotius ‘may encourage us to include critical language of distributive justice in our [legal argumentation] to address “legitimate popular grievance” about the international rule of law and address the human desire for just institutions also at the international level.’
Read the full article here.
Prof. Dr Janne Nijman is member of the board and academic director of the T.M.C. Asser Instituut. She also serves as professor of History and Theory of International Law at the University of Amsterdam.
'Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium', in International law and Religion, edited by Martti Koskenniemi, Monica García-Salmones, and Paolo Amoroso (OUP, 2017).
Populism and International Law: What Backlash and Which Rubicon?, Netherlands Yearbook of International Law 2018, edited by Janne E. Nijman and Wouter G. Werner.