War and Punishment: Rereading Hugo Grotius

Abstract

In Book II, Chapter 20 of The Rights of War and Peace , the Dutch philosopher Hugo Grotius presents the idea that punishment is a legitimate cause of war. In making this claim, he builds upon the long-standing Christian just war tradition, stretching back through Augustine and Aquinas up to the early modern period. Grotius’ justification for punitive war relies on his natural law reasoning, and the bulk of the chapter (one of the longest in the entire three volume text) relies on the idea that a wrong committed can be punished by any member of a society, i.e., there is not a necessity for an authority to engage in punishment only the existence of the wrong. But Grotius cautions his argument in a few ways, such as the dangers of vengeance and the hubris of leaders. While there has been a resurgence in recent years to justify war as punishment, both in theory and practice, less attention has been paid to the obligation to be merciful, other than in post-conflict situations. In this Article, I explore the relationship between punishment and mercy in Grotius’ work but also more widely. I suggest that Grotius’ natural law arguments both for punishment and mercy can still help us think critically about war. I argue that while punitive war remains a legitimate practice, we need to think more carefully about Grotius’ calls for mercy and charity. This can be found prior to war, during war, and after war. I conclude that both punishment and forgiveness merit equal attention in the just war tradition.