CHAPTER FIVE
GROTIUS dominated seventeenth century Whiggism—and with good reason.1 His De Jure Belli ac Pacis (1625), known generally as the founding treatise of international law, is far more comprehensive than that description suggests.2 It also presents a full-blown theory of the law of nature and the civil law. It treats such topics as the origin of political power and private property, the relations among the natural, divine, and human laws, and the powers of rulers and the liberties of peoples. Moreover, the De Jure is a work of nearly unparalleled erudition. Probably not since Thomas Aquinas had an author displayed such a grasp of all the literature relevant in even the slightest degree to his topic. Philosophers, poets, and historians, as well as jurists and legal codes, found a place in Grotius’s synthesis. The book’s “index of names” by itself runs the length of a very long chapter in an ordinary book. Grotius not only drew on standard authors such as Plato and Aristotle, Bartolus and Livy, but showed a remarkably fluent knowledge of Jewish writers like Maimonides and Abravenal, of very recent theorists like Bodin and Suárez, and even of commentators on the English common law like Fortescue and Littleton.
GROTIUS AND THE REFORMATION OF NATURAL LAW
The comparison to Thomas Aquinas seems especially apt, for Grotius fulfilled a function in his day somewhat akin to what Thomas had done three and a half centuries earlier. Thomas had showed perplexed Christians how the pagan philosophy of the ancients could be intergrated with Christianity. But Thomas had integrated pagan philosophy with a version of Christianity that, in Grotius’s time and place (and in seventeenth-century England), had become suspect, or worse, hated. Early Protestantism struck out not only against the Roman Church but also against its characteristic modes of thought. Thus early Protestant political thinkers like Luther, and later ones, like Milton, turned not to Thomist natural law for guidance about politics, but to the Scriptures. Protestant political thought was initially political theology, not political philosophy. Grotius paralleled the achievement of Thomas, in that he developed a Protestant version of the law of nature—a doctrine that had been developed and nurtured by “popish” writers and, even in the seventeenth century, remained mostly the property of counter-Reformation thinkers like Francisco Suárez and Roberto Bellarmine.3
In a sense, the “Protestantization” of the natural law meant no more than the sponsorship and restatement of the doctrine by a writer with recognizably reformed credentials. It also meant the excision of obviously pro-papalist components from the theory. From Thomas through Bellarmine and Suárez, the natural law theorists had tended to support at least some papal claims to authority in both the sacred and the secular spheres.4 Needless to say, there was not a spark of such ideas in Grotius’s version of the natural law. Indeed, so contrary to Church doctrine was Grotius’s book that it was placed on the Index soon after publication, there to remain until the early twentieth century.5
Moreover, although Grotius did not merely restate what all “right-thinking” Englishmen already believed, what he said readily converged with what many of them did think. His teaching about the authority of the original contract cohered with English tendencies to think about politics in terms of the ancient constitution. His version of contractarianism coexisted easily with English antiquarianism, and appears to have been an important force in accustoming the English to think in terms of contract. This habit of thought later on—in Locke, Sidney, and others—became attached to doctrines less readily congruent with the ancient constitution and the authority of history; thus Grotius, in retrospect, appears to have functioned as a transitional force in the Whig tradition. Furthermore, although Grotius was far from an unambiguous proponent of liberty and constitutionalism, his theory as applied to England readily became a support for these causes, because, as we have seen, it supplied a natural law endorsement for the historic (Whig) order.
The history of the reception of Grotius in England has yet to be written, but the publication history of De Jure may suggest it. The first edition appeared in 1625 in Paris, followed by at least fourteen editions before 1680 at Amsterdam and yet another at the Hague.6 Given the pattern of intellectual interchange between England and the Netherlands throughout the seventeenth century, the early presence of Grotius’s text among English readers of Latin may be easily surmised. Locke, for example, posessed the 1650 Latin edition of De Jure, published at Amsterdam, as well as another edition he purchased in Holland during the 1680s. He also owned Grotius’s De Veritate Religionis Christianae, apparently also purchased in Holland.7 Beginning in 1654 English translations of De Jure began to appear, the earliest of which was titled, significantly, The Illustruous Hugo Grotius of the Law of Warre and Peace. Grotius and his book were clearly already of wide fame. Another edition of the same translation appeared in 1655, and a new translation in 1682.8 The fact that it was retranslated so soon suggests it was considered a vital book. The English-language presence of De Jure began during the Protectorate, and the new edition of 1682 suggests a particular relevance of the text to the growing conflicts between Whig opposition groups and the court.9
The events of mid-century no doubt gave Grotius a great boost. England suffered from religious conflict of a similar intensity to that found elsewhere in post-Reformation Europe, but with a somewhat different focus. The most important English battles occurred not between Catholics and Protestants, but between different varieties of Protestants. That did not make the battles less serious, or less violent, however. The conflicts of the seventeenth century proved that Protestantism could not easily and peacefully settle the theological-political problem. A generation earlier, Grotius had lived through a similar situation in his native Dutch Republic. There the theological-political conflicts between the Arminian Remonstrants, with whom he was aligned, and the partisans of the more orthodox Calvinist doctrine led to civil violence for the country and great personal suffering for Grotius himself. The Synod of Dort in 1618–19 rejected the Remonstrant doctrine and prepared the way for Grotius’s arrest in 1619. His arrest inaugurated a long period of imprisonment and exile, during which Grotius wrote his De Jure and most of his other important writings.10
Grotius thus understood at first hand the particularly unsettled character of politics under the Reformation dispensation. His effort to restate the traditional doctrine of the natural law must be seen as one response to this situation.11 That response took the form of a doctrine consonant with dominant Protestant principles but free from the vagaries of theological-scriptural doctrines and commitments. In the De Jure, Grotius is quite insistent: the law of nature is common for all human beings without regard to religion.12 However, “there are those who urge the Old Law in itself as the law of nature.” Grotius strongly disagrees, “for much of [the Old Law] comes from the free will of God.” That part of the Old Law that derives from the free will of God must be distinguished from the law of nature. In order to know the difference, one must know the law of nature altogether independently of the Old Law.13 Knowledge of the law of nature does not derive from the Old Testament, but stands as a measure of it.
Likewise, Grotius distinguishes the New Testament from the law of nature, and in doing so, goes “contrary to the practice of most men. . . . We are admonished to a greater holiness” by the New Testament than “the law of nature alone would require.” The New Testament does not supply binding principles for the governance of political life; its precepts are commended rather than strictly enjoined.14 Knowledge of the law of nature is through “right reason,” not through divine revelation.15
Grotius goes even further: the law of nature is accessible as wholly natural and would have “some place even if one posited that there were no God.” He hesitates to follow this last thought out, but it has a certain consistency with the dismissal of the Scriptures as a source of knowledge of the law of nature.16 Accessible directly to right reason, knowledge of the binding or obligatory principles of politics, in Grotius’s account, thus promises an escape from the sphere of sectarian conflict and undecidability characteristic of the Protestant era and most especially of the Civil War era in England.
Grotius’s concern to free politics from Scripture seems to have had a yet broader end. In his view, politics in the entire Christian age showed a marked decline from pre-Christian days. The Greeks and Romans lived in “better times” and were “better peoples” than those who lived after. Therefore, “examples” taken from their histories have special “authority.” No less than Machiavelli, Grotius looked to the model of antiquity as a corrective to the degenerate politics of his own era.17 This degeneracy was especially visible in the international sphere. To Grotius, the Christians of his time fell short not only of the civilized pagans but of the barbarians as well. The Thirty Years War and other religion-inspired warfare formed the larger backdrop for Grotius’s life and career and furnished much of the inspiration for his book. “I saw throughout the Christian world a license in waging war that would shame barbarous nations. . . . For light or even no causes” nations rushed to arms, and once in arms, they showed reverence for neither divine nor human laws. When most ostensibly inspired by reverence, the nations showed less reverence than ever. Grotius saw, therefore, greater need for his undertaking than ever before.18
In his own age, an age riven by uncertainty—or by too many conflicting certainties—Grotius displayed the same striving for mathematical (i.e., non-controversial) certainty as did Descartes, Hobbes, and Spinoza shortly after him. He sought to ground the propositions of the law of nature in “notions so certain that no one can deny them without doing violence to himself.” The “principles of natural law [are] therefore patent and evident.” So determined is the law of nature that God himself could not change it. No matter how powerful God is, “there are certain things over which his power does not extend.” Just as for Descartes, the model for utterly immutable truth, a truth immune from all unsettling by any act of even an omnipotent will, is mathematics. “Even God cannot bring it about that twice two is not four.”19 The “intrinsic qualities of acts,” apparently, have the same inevitable character as mathematical truths. The identification of the law of nature with certain and immutable propositions stands as Grotius’s most extreme, but not his only, effort to escape all arbitrariness, all interpretation and contention, all possibility of contamination by will. Even where Grotius introduced a role for will, he strove for the same kind of certainty, as we shall see below. His attempt to move political discussion to this different and more promising plane of discourse (more promising because available in principle to all human beings qua human) must have formed a large part of the appeal Grotius had for people long wearied of interminable polemics based on obscure, ambiguous, or controversial texts.20
In his dedication of the De Jure to the French King, Louis XIII, Grotius signalled his intent to adumbrate a new kind of doctrine of the law of nature and of nations as part of an effort to pacify post-Reformation Europe. That act of dedication was natural in one respect, for Grotius was living in France at the time he wrote De Jure, and he received a small pension from the king. But it was also a significant and bold deed: a Dutch Protestant dedicating his masterwork to a very powerful Catholic monarch. In the dedication, Grotius, on behalf of “the peoples of Christian lands,” urges Louis that “through his initiative peace may come again, not only to the nations but also to the churches, and that our time may learn to subject itself to the discipline of that age which we all who are Christians acknowledge in true and sincere faith to have been Christian.” That age, Grotius’s editor reminds us, was “the period of the early church, before there was a division into sects.” Grotius found the seventeenth century, by contrast, an age “of partisan passions, fired by hatreds which blaze more fiercely day by day.” Writing in the midst of the Thirty Years War, with memories of many other religion-incited controversies in mind, Grotius confessed that “our hearts [are] wearied with strifes.”21 “The Law of War and Peace” was meant as a contribution to peace and, should that fail, to more moderate war.
THE SOURCE OF POLITICAL POWER
The Whigs who found Grotius so attractive were, for the most part, quite adequate interpreters of his position. Even their intramural disagreements found their basis in ambiguities in his text. Let us recall, then, some of the more significant dimensions of Whig Grotianism, left and right. First, Grotius and the Grotians were indeed contractarians, but they differed in very many and very important ways from the natural rights contractarianism of Locke and the American Declaration of Independence. Second, there is an ambiguity in Grotius regarding the dissolution of government in those cases where resistance is valid, and this ambiguity produced important differences among Whigs. Third, Grotius and the Grotians developed a strikingly peculiar doctrine of resistance. This last deserves special attention, for it provides an admirable entrée into the core of Grotius’s doctrine. The Grotians, true as they may have been to the master, did not themselves allow more than a glimpse of the theoretical foundation of the doctrine they espoused. For that, we must turn to Grotius himself.
The Grotian resistance doctrine, like most else in Grotius, is meant to be moderate, no doubt reflecting both his conscious effort to strike an Aristotelian note and his perception that the political ills of his day were exacerbated if not caused by the thoroughly immoderate approach to politics fostered by reigning theologico-political commitments.22 The Grotian doctrine can be briefly restated: There is no universal right of resistance under the law of nature, just as there are no universally established principles of limitation set for the powers of rulers by the law of nature. Instead, the existence of a right of resistance and of limits on rulers are matters to be ascertained under the constitution or original contract or civil law of each individual polity. Grotius is entirely nondoctrinaire. Such rights and limits are matters not of jus naturale but of jus civile.23 The Grotian doctrine thus establishes a remarkable power in the original or constitutional act of human will or agreement that establishes politics. The Grotian doctrines of resistance and its limits betoken the role in Grotius of human will, vehemently disconnected from the jus naturale but admitted to great power in this and other key places. Human will—or, perhaps better, human covenanting or promising—establishes much, perhaps most, of the binding guidance for political and ethical life. As Leon Ingber says, in Grotius “consensualism is deployed without limit and liberated . . . from formalism.”24
Grotius was surely not the first political philosopher to incorporate covenant or agreement in his doctrine, but, I would venture to say, he elevated it to a role it had never previously held in the tradition of natural law philosophy.25 By comparing Grotius to Francisco Suárez, whose On Laws and God the Legislator appeared barely a decade before Grotius’s work, we may see how far Grotius deviated from the more standard approach. Suárez provides an instructive contrast, for he himself went very far toward developing a voluntarist perspective on the natural law. As close as Suárez and Grotius appear to be on many issues, the depth of their disagreement on the theory of resistance points toward the limits of their concord.26
Suárez’s doctrine on the right of resistance is as follows:
If a legitimate king is governing tyranically, and no other remedy is at hand for the self-defense of the kingdom but to drive out and depose him, then the whole commonwealth by means of a public council of the citizenry, of the commons and of the nobles, may depose him. This would be allowed both by the law of nature which permits one to resist force with force, and also because this case requiring [action] for the very salvation of the commonwealth is always understood as excepted in that first compact by which the commonwealth transfers its power to the king.27
To mention but two of several importantly different features of the two doctrines: First, Suárez found the right to resist and depose a tyrant to be a universal right, which Grotius and the Grotians denied. Second, Suárez found the source of this right just where Grotius and the Grotians pointedly did not, in the law of nature and in an idealized or constructive version of the “original compact.”28
Although Suárez accepted a version of the original compact, his understanding of this, and of the origin of political power, differs from Grotius’s in ways that produce their differences on the right of resistance. The beginning point appears to be much the same: “Man is in his nature free and subject to no one but the Creator.” But, Suárez hastens to add, “it must first be said that civil magistracy together with temporal power for ruling human beings is just and altogether in accord with human nature.”29 Suárez seeks to harmonize natural freedom and natural subjection to the civil power: natural freedom does not imply that human beings are in any sense apolitical by nature.
According to Suárez, human beings are by nature subject to the civil magistrate and at the same time “subject to no one,” because neither nature nor God vests the civil power “in some rather than others.” Political subjection is not “immediately from nature,” but “it is not against the directive law of nature.” Here, then, is the place of compact: “Natural law by itself does not effect political subjection without the intervention of human will.” Human will establishes the locus of political authority, but not whether it exists nor whence it comes. “From the nature of the thing alone it does not exist in any individual human being, but in the collective body of mankind.” Nature establishes the power, and the people vest it in particular persons so that it may be exercised for its purpose, the common good of the community.30 Human choice, not nature, determines who has political authority and thus is responsible for the form of polity, that is, for the constitution. Any of Aristotle’s three pure forms—or, perhaps better, a mixed form—is eligible. Constitutions accordingly may assign different powers to the king; monarchical absolutism is no requirement of the natural law.31
Political power is not created from any power preexisting it in the individual human beings; the political community is “a mystical body,” a “unity.”32 Human agreement or human will plays an important, but subordinate and far from constitutive, part. Suárez appeals to the analogy of marriage: An act of will is necessary for the parties to enter into the marriage, but the relation of authority that exists in it is not the product of that will; it is rather from “the author of nature himself.” The parties can “contract the marriage of their own will” but they cannot construct marriage itself.33 Both marriage and the political, according to Suárez, are natural and have natures.
Suárez’s near contemporary, Roberto Bellarmine, taught nearly the same thing. Political power is natural, but “the divine law has not given this power to any particular man.” Rather, it “resides immediately in the whole multitude as in an organic unit. . . . The power belongs to the whole multitude.” “The community,” however, “being unable to exercise this power itself, is obliged to communicate it to one or to several.” The community can choose the form and powers of government.34 Thus, for Bellarmine as for Suárez, compact has a definite but limited role in supplying the foundation of a political society.
For Grotius human compact is far more potent. Grotius, in a word, understood the relationship between the jus naturale and the jus civile, between the law of nature and human will, altogether differently from his predecessors.35 It is tempting to attribute the differences between Grotius and his predecessors to the Dutchman’s announced aim of developing, more fully and more consistently than had ever been done before, a code of the “law of nations”—the legal rules that prevail among, rather than within, political communities. Since none of his predecessors had put that concern at the center of his thinking, it is plausible to think that Grotius’s new concern led to his new teaching on the nature and origin of political authority: his concern with the law of nations led him to pose the question of the basis (if any) for the use of force, the waging of war, by one community against another. Since Grotius was convinced that war is sometimes just and therefore justified, he concluded that the rightful use of force by some against others cannot be limited to the situation in which all the people in question are fellow citizens or members of the same political community. Therefore, he surmised, there must be a basis for rightful use of force which derives from something else than Suárez’s “mystical unity.”
Grotius found that source in a natural and individual power to punish that was entirely different from anything affirmed by Suárez or the earlier natural law philosophers. “Victoria, Vazquez, Azor, Molina, and others [Thomas Aquinas and Suárez among them] . . . claim that the power of punishing is the proper effect of civil jurisdiction [alone], while we hold that it is also derived from the law of nature.” The power of punishing, which is the power exercised by political authorities within a community and in a just war of one community against another, “originally rested with individuals,” because, “according to the law of nature, . . . punishment . . . may be exacted by anyone at all.”36 This direct power to act under the law of nature supplies a foundation for the application of rightful force against persons not members of one’s own community, and thus for the rightful use of force in international relations. Having generated a new doctrine on the power of punishment under the law of nature for the sake of his interest in international relations, Grotius might have been led to posit a new account of the original of political power as well, a new account which produces the novel hypervoluntarism visible in his teaching on resistance.
THE PROBLEM OF NATURAL LAW
The above account of Grotius’s revision of the traditional theory of the origin of political power tempts, but does not ultimately persuade. The single consideration most decisvely against it is this: Suárez himself had paid much attention to international relations (as had Bellarmine), and had even presented a doctrine of the just war. His approach to the origin of political power did not disbar him from treating issues of right among nations: the civil authority that inheres in the community as a “mystic unity” can be deployed externally as well as internally.37
In the prolegomenon to the De Jure Grotius suggests another, more radical reason for his revision of the natural law tradition. He seeks in his work, he says, to treat “the law that holds between several peoples or rulers of peoples whether effected by nature itself or established by divine laws or introduced by customs and tacit covenant.” Others have written on this law, he says, but none satisfactorily. In the course of his treatise Grotius returns often to the inadequacies of his predecessors, but early in the prolegomenon he emphasizes a truly major deficiency: “In our age, as in the past, there are not lacking those who contemn this part of right (law) as though it were nothing more than an empty name.” In this context he mentions by name only ancients and none of the men of his own age who so believe, but he gives a good hint as to the identity of at least one of the more recent doubters. Two of the objectionable sayings he quotes recall more than a little that notorious contemner Machiavelli: “For those whom fortune favors might makes right,” and “A republic (commonwealth) cannot be governed without injustice.”38
Machiavelli and others in Grotius’s day doubted the very existence of the law Grotius sought to treat; more than that, they held that there is no jus naturale. The greatest deficiency of the natural law tradition, Grotius says, is that it has failed to convince the scoffers; he must revise the tradition not only because he seeks to treat more adequately a relatively undeveloped branch of law, but more fundamentally because the tradition has hitherto failed to meet the challenge of men like Machiavelli. The full-blown adumbration of the natural law theory within Christendom has not made these “hard-nosed” men any more believers in natural law than were their pagan predecessors millenia ago.39
Grotius refers to a saying of the Roman playwright Terence to bring out one aspect of his problem. The matters with which he is concerned are “so uncertain” that one could just as well “make them certain by reason” as “go insane with reason.” Grotius’s subject matter, in other words, appears not to have the certainty and definiteness to bear a scientific treatment. So far as that appears to be true, it is in turn one ground for those who believe there is no natural law, or any law, governing war. To meet this kind of skepticism, Grotius says he must demonstrate that the law he seeks has sufficient certainty and clarity so that rational treatment of it is possible.40
Another central dimension of the problem was brought out in the challenge to the jus naturale as formulated by Carneades, the skeptical head of the Third Academy. Grotius avoids giving aid to the cause of injustice by merely sketching in briefest outline the Carneadean argument, which he and others found to be among the most powerful ever made against natural right:41 Nature is not the source of laws (jura) because laws vary “according to the customs” of different peoples, and even among the same people laws often change over time. If nature were the source of laws, their content would be invariable, as nature is everywhere the same and unchanging. The true source of law is not nature but human beings, who “impose it on themselve for their own benefit.” Law, according to Carneades, embodies human will or agreement. His argument depends on the central distinction between nature and convention: fire burns everywhere the same, but the just and the unjust vary from city to city. In the light of nature—of what truly is, never varies, and is generally effectual—the conventional loses its authority.42 Even so far as there is a universal character to law (jus), it remains contrary to nature. So far as jus is universal it prescribes justice, the good of others, or the common good; but both men and other animals are led by nature to their own benefit. To follow justice is therefore to go against nature and engage in the “highest folly.”43
Several implications of great importance for Grotius’s enterprise follow from the Carneadean argument. If the source of law is not nature but mere human convention, there is no genuine obligation to obey law; under some conditions, there may be advantage in doing so, but there is no obligation. So, in order for law to function as it is set up to do, it must have a sanction attached to it, making it potentially more advantageous to obey than to disobey the law. Where there is an effective sanction, it may not be mere folly to adhere to justice. The sanction, therefore, is not merely crucial, but one might say definitive for law. However, there is no sanction, at least not of the sort attaching to the civil law, in the international sphere. There is, therefore, no international law. Carneades challenges the existence of not only the law of nature, but along with it the law of nations. Grotius was quite right to see that he must refute Carneades in order to be confident that the subject matter of his treatise exists. The absence of a sanction in the international sphere would appear to make it double folly to adhere to the principles of justice in dealing with other peoples. But the greatest folly of all would be Grotius’s: he would be like the man who brought ridicule upon himself by offering commentaries on justice to Antigonus while that general was attacking cities belonging to others.44
The Carneadean challenge was the old challenge of conventionalism: law and justice are not by nature but are indeed against nature. Grotius apparently believed this old doctrine had not been sufficiently refuted, despite the centuries of political philosophy devoted to the effort and despite the immensity of the treatises on natural law by men like Suárez. Grotius thus faced a war on two fronts, so to speak, in his effort to establish the law of nations. Both ancient conventionalism and the Reformation posed deep-going challenges to his enterprise.45 In the course of meeting those challenges, in the course of securing the laws of nature and nations against them, Grotius substantially modified a tradition that had hitherto failed to accomplish its appointed task.
NATURE AND CONVENTION IN THE ROMAN LAW
The conjunction of the two challenges to the natural law led Grotius to take with special seriousness one of the founding texts of the whole tradition, the sixth-century codification of the Roman law, the Corpus Juris Civilis. The Roman jurists were grappling with the same challenge of conventionalism that Grotius addressed, but the Roman law was not at all implicated in Reformation-era sectarian squabbles. Even though it was prepared in Christian times, its roots predate Christianity and its treatment of the jus naturale bears no marks of having been shaped by Christian motifs.
The massive presence of the Corpus Juris Civilis in Grotius’s book is well testified to by his “index of authors cited,” according to which the Roman law is more frequently mentioned than any of the standard philosophical or theological authors in the natural law tradition—more often than Thomas, Suárez, Vazquez, and Victoria together. More fundamentally, Grotius’s entire presentation of law is shaped by the Roman jurists’ classification of laws into the three types jus naturale, jus gentium, and jus civile.46 To say that Grotius recurs to the Roman law is not to say, however, that he entirely agrees with it. The Corpus is present in De Jure as much an object of criticism as one of inspiration. Indeed, Grotius’s modification of the tradition comes to light initially as a modification of the Roman law’s version of the various types of jus.
The Corpus is remarkable for the prominent place it gives to the notion of natural right—jus naturale, a philosopher’s concept—in an actual legal code. Both the Institutes and the Digest begin with discussions of the jus naturale and refer to it at various strategically important places as well.47 Equally remarkable is the jus gentium, the law of nations or peoples. This concept, it is now widely believed, also owes its origin to philosophic speculation, in the Roman context most especially to Cicero, who is credited with coining the term; and behind Cicero stands Aristotle, who developed a similar concept under the rubric “common law” in his Rhetoric. 48
The understanding of the three types of law, and especially of the jus naturale, that animates the Corpus is not easy to discern, however, for the presentations of those ideas are always brief and not always consistent. The problem comes to view in the very opening section of the Corpus. The Institutes, following the jurist Ulpian, place the jus naturale within the now familiar tri-partite categorization of types of jus. However, yet other authorities, in the Digest, adopt only a twofold classification, and the elements in it differ from one source to another. The highly authoritative Gaius speaks of jus gentium and jus civile as the two types of jus, as Hermogenius also appears to do. Paulus, on the other hand, appears to contrast jus naturale and jus civile.49 The authorities seem to be of two minds about the relative status of the jus gentium and the jus naturale: are they different from each other, or are they the same, and if the same, are they to be considered more properly as jus gentium or as jus naturale?
One finds this ambivalence not only between different authorities (whose opinions were supposed to be harmonized in the Digest), but even within the Institutes itself. In the very important discussion of the origin of private property, for example, it is claimed that jus naturale “is called” jus gentium. The identification of the two here is asserted to be “sicut diximus” (“as we said”); but that is not at all what is said in the initial discussion. There the jus naturale is said to be “that which nature has taught all animals”. Justinian, following Ulpian, emphasizes its universalistic character, “for that jus is not peculiar to the human race, but is for all animals which are born in the sky, on the land, or in the sea.”50 The Institutes and Ulpian in the Digest emphatically disagree with the position taken within the Stoic natural law teaching that natural law (right) pertains especially to human beings, to the reason, and to social life. As Cicero, for example, recounts the Stoic view, natural law is “right reason applied to command and prohibition.” Justinian and Ulpian indicate further deviation from Stoic conceptions in the example they give of jus naturale: “the union of male and female, which we call matrimony, and also the procreation and education of children: for we see that other animals are also moved by acquaintance with this jus.”51
The jus naturale is thus natural in a readily cognizable sense: it is the natural, as the universally operative force in human and all other animal beings. As most common, or most universal, or universally effective, it is most natural. As natural in this sense, it is not the best or the highest; contrary to both earlier and later theories, jus naturale does not stand at the top of some hierarchy of right.52
The other two types of law are characterized by progressively less universality. The jus gentium is that which “natural reason has established among all men, and that which is observed equally among all peoples.” The jus civile is narrower yet: it is the law peculiar to each political community.53 Although it is less universal, nonetheless it is the Roman jus, composed of jus naturale (precepts shared universally with all animal nature), jus gentium (precepts shared universally with all other peoples), and jus civile proper (precepts peculiar to the Romans), that is the subject of the Corpus. There are no indications, it should be noted, that jus civile, although less universal, has less dignity or validity than the other forms of jus.54
The jus gentium and the jus civile are less universal, and therefore less natural, than the jus naturale, but they differ from the natural law in yet another way: both involve the intervention of human reason, or human making; they are both products of human agreement or establishment. The ambiguities in the discussions of the three types of jus in the Institutes and the Digest, especially the ambiguity about the relation between jus naturale and jus gentium, derive from an ambiguity in the notion of the natural at work in the texts. On the one hand, the natural is the “not artificial,” the not conventional; it is that which is, independent of and apart from all human agreement. According to this understanding of nature the jus gentium belongs with the jus civile as not natural. The jus naturale, in this view, includes the basic desires or instincts and the human situation prior to any artificial agreements. According to the former aspect, the union of male and female is jus naturale; according to the latter aspect, human freedom and the nonexistence of private property are natural.55
But nature is also taken to mean the universal or the common. The most natural is the most common, so that what human beings share with all living, animate beings is emphatically jus naturale, but what all humans share with each other is also natural, at least natural for the human species. Thus, in this sense jus gentium is jus naturale humanum, and all such universal principles, along with the yet more universal jus naturale itself, are distinguishable from the jus civile as the particular and variable. Thus the jus gentium is both natural and non-natural, both a separate or third type of jus and assimilable to either jus naturale or to jus civile. Likewise, jus naturale can be assimilated to it, as Gaius did. The in-between or variable status of the jus gentium thus accounts for the equivocality of the texts on the classification of jus. The jus gentium is somehow the most interesting, certainly the most problematical, element of the classificaton of jura in the Roman law.
In line with its philosophic origin in Cicero and Aristotle, the real significance of the jus gentium comes to light when we reflect on one of the senses of “natural” employed in the overlapping classification schema adopted by the jurists. The categorization that distinguishes jus gentium and jus civile from jus naturale evokes the familiar distinction between nature (physis) and convention (nomos). The jurists were concerned with the same conventionalist challenge that later engaged Grotius. That challenge not merely leads to the denial of a law of nature, or natural right, it also leads to the sapping of authority from the civil law, for it robs the civil law of the authority of nature. Once the philosophic thesis of conventionalism was posited, the philosophically minded Roman jurists—those “priests of jus,” those seekers of “the real not a pretended philosophy,” as Ulpian called them—perforce had to take account of it.56
The definition of law clearly bears the marks of the conventionalist critique. The whole reflects the nature-convention distinction; the natural is presented emphatically as the universal. The human institutions that are law or right are modifications of the natural, and thus arguably against nature. The jurists go a long way toward presenting law in Carneades’ terms. Yet they contain no hint that the conventionalist thesis undermines law. They do not accept a simple opposition between law and nature. Instead they speak of jus naturale, which is related, somehow, even if only as a point of departure, to the civil law. It seems fairer to conclude not that the Roman lawyers accept the conventionalist critique but that they respond to it.
They were not, of course, the first to attempt to do so. The political philosophy of the Socratic school sought to salvage law in the face of the challenge of nature. To some extent the effort to discover a right by nature which is compatible with the nomoi of actual political communities succeeded, but not altogether so. In Plato, for example, the teaching about natural right culminated in a best regime in speech, utopian or nearly so, which transcends and calls into question the justice of every political regime in the here and now: it calls into question almost every legal institution in actual cities, including such core institutions as the family and private property. Stoicism, with its commitment to a universal natural law of right reason—to the cosmopolis rather than to individual, particular cities—and its relatively uncompromising commitment to natural as opposed to legal right, to the rule of the wise, and so on, radicalized the Platonic transcendence of the here and now.57
The doctrine of law in the Corpus Juris Civilis was an attempt to meet the challenge of Carneadean conventionalism but also to avoid the opposite yet equally subversive challenge represented at its most radical by Stoicism. The Roman lawyers were teachers of natural right—that is, they adopted a form of the Socratic political philosophy to guide them in their rationalization of the Roman legal order—but they were not Stoics. They opposed Carneades from a position apparently much closer to him than to the Stoics, but they did oppose him. They seemed to regard both Carneadean conventionalism and Stoic natural law as forms of the “pretended philosophy” they eschewed.
The center of their doctrine was the jus gentium. It was, as we have seen, the in-between or variable status of the jus gentium that accounts for the equivocality of the texts on the classification of jus. The jus gentium, in turn, was developed as it was as an attempt to mediate the conflict between physis and nomos; in the Corpus, jus gentium appears as a type of nomos or convention that has a claim to being natural. To be conventional is not necessarily to be variable. There exists a (more or less) universal or common set of conventions (nomoi), agreements, or practices established by human reason, the very universality of which testifies to their naturalness. Thus the distinction between physis and nomos is far too starkly drawn. In itself, the fact that something is established by human agreement does not rob it of authority and validity, or even of a sort of naturalness.
The real value of the doctrine of the jus gentium, however, lies in its validation of the variably conventional, and thus highly vulnerable, jus civile. The key text is the passage by Ulpian in the Digest in which he relates the jus civile to the other two:
The jus civile neither wholly recedes from the jus naturale or gentium, nor is it altogether subordinate to it either; so that when we add something, or subtract something from the common jus, we make our own jus, that is, jus civile.58
Ulpian speaks most concisely here and his words thus require interpretation. It is relatively easy to understand what he means when he says that the jus civile, differing in some way from the common jus, is not altogether subordinate to the latter; he seems to mean “subordinate to” both in the sense of “determined by” and “in need of validation by.” On the other hand, he affirms that the jus civile does not altogether “recede from” the common jus, employing the same word (recedere) he used to describe the relationship between jus gentium and jus naturale, when he said that the former “recedes from” the latter because it is common to all human beings only and not to all animate beings. But the degree to which jus gentium recedes from jus naturale does not prevent Ulpian from referring to the two together as jus commune, even though he has emphasized also in the meantime that the jus gentium on occasion changes the jus naturale; slavery is brought in by jus gentium. For the jurists, that does not invalidate slavery.
Just as the jus gentium, the human agreement that adds to or subtracts from (that is, changes) the jus naturale, remains valid despite its deviations from the latter, so does the jus civile, the more restricted agreement, remain valid. The origin of a jus in convention, even in a convention against jus naturale, neither necessarily undermines the validity of the jus nor even prevents Ulpian from assimilating the two kinds of jus to each other. That idea is extended to the jus civile on the basis of the following explanation of the reasons for the jus gentium: “Jus gentium is common to the whole human race. For under compelling use and human [humanis] necessities, the peoples of mankind [humanae] have instituted certain things.”59 The Institutes’ point, apparently very close to Ulpian here, is that human needs led human beings to add to or alter the arrangements they shared in common with all animals (i.e., the jus naturale). By extension, the specially Roman, or Sabine, or Athenian needs led these peoples to alter the arrangements they shared with all other human beings and to produce thereby a jus civile specific to each of them. Each requires different jus because all peoples exist under different circumstances.
The necessity under which they operate, or the benefit to be realized from the alteration, justifies and explains the change and implicitly introduces another standard of nature different from the two we have already seen. Human benefit or the good is the natural, in terms of which both the nonartificial, or noninstituted, and the universal as such are abrogated, or challenged as standards of the natural. In this sense, the jus civile can be the most natural and the most valid. But in opening out toward the good or benefit as the natural, the jurists move back toward the philosophic transcendence of the political here and now, although not in so obvious or thoroughgoing a way as in the pre-Socratic distinction between physis and nomos or in the Stoic emphasis on the simply universal and rational.
The jurists’ doctrine represents an attempt to retain the guiding force of a philosophic grasp of nature as a standard, but to blunt the force of nature as a solvent. Thus jus naturale in the strict and explicit sense is narrow and even crabbed; it is the lowest, not the highest. It is so unauthoritative that it may be and even needs to be changed by human convention. But the jurists themselves understand, and point their readers on the road to understanding, those conventions as potentially rooted in nature, otherwise understood.60 The task of the jurist is to bring jus civile, that is, the effective law, as close as possible to the natural standards, or the jus naturale, in the most extended and exalted sense. Nonetheless, the jus naturale in the extended and exalted sense has not at all the quality of law; it is surely not categorically and universally valid; nor is it specific and determinate enough to be lawlike. The jurists’ understanding of the need for a tamed, watered down jus naturale means that they cannot expect their legal code, or any legal code, simply to embody the just order. Not the one who has the best natural claim, but the one who legally owns, must have right.
The Roman lawyers thus proposed a teaching on the natural law that seems able to satisfy the twofold requirement Grotius identified. It replied to the Carneadean challenge and did so in a way perfectly free from the theologico-political wrangling of reformed Europe. Nor was Grotius the only writer of his age to feel the attraction of the Justinian synthesis; the very important Vindiciae Contra Tyrannos, as we have already noted, attempted to work out a theory of political obligation and resistance on the basis of the Roman law doctrine. But, attracted as he was to the Romanists, Grotius, in his own reformation of natural law, broke fundamentally with them, a break which led him to his own peculiar way of blending nature and convention.
GROTIUS’S BREAK WITH THE NATURAL LAW TRADITION
The Roman law supplied a solution of sorts to the very problems Grotius set for himself: the abiding problem of conventionalism and the more recent set of problems posed by post-Reformation sectarianism. Although Grotius departed from the Roman jurists in quite a few important respects, nonetheless his text reminds more of their work than of any of the intervening texts. Indeed, some competent scholars have concluded that Grotius represents an unreserved “return to the Roman law.” Besides the frequent appearance of the Institutes and the Digest among the profusion of learned citations in De Jure, probably the most visible presence of the Roman lawyers lies in Grotius’s central use of their classification of laws into jus naturale, jus gentium, and jus civile.61 To the compilers of the Roman codes, Grotius admitted, he “defers much, for they often supply the best reasons for showing what is the right (law) of nature and they also often furnish evidence for this right (law) no less than for the jus gentium.”62
Despite his admiration of and deference to the Roman jurists, Grotius does not hesitate to signal his disapproval as well. No less than other writers on law, they confuse the different types of law, Grotius says, and they are particularly confused about the law that stands near the center of his concern with international law, the jus gentium. They do not clearly see its character as a law between peoples, but sometimes treat as jus gentium matters which are strictly speaking civil laws of particular peoples. And, like all other legal writers, they “indiscriminately mix together maxims of the jus naturale and the jus gentium.”63 Grotius, on the other hand, is most eager to keep the different kinds of law clearly and distinctly separate from each other.64
These complaints of Grotius against the Roman law cut very deep. It was not mere carelessness of analysis or exposition that led the Roman lawyers to “confuse” matters in the manner he so disparages. Both the way in which they conceived of the jus gentium (as a common law of peoples rather than a law between peoples) and the way they vacillated on the relation between jus naturale and jus gentium derive from their general solution to the problem conventionalism posed for the status of law. Grotius’s differences with the Roman law on these matters thus suggest a more fundamental difference in the way he relates nature and convention: in his view the Roman lawyers failed because they did not properly separate the natural from the positive law.65 Whereas the Roman codifiers hesitated on the principle of the jus gentium, and by implication even on the principle of the jus civile, Grotius is certain that both belong together as positive law, “depending on human will” or “common consent” over and against the natural law, depending only on “correct inference from the principles of nature.” The law of nature is everywhere the same and unchangeable; the other laws depend on human will and are thus changeable if not arbitrary.66 The Roman lawyers responded to Carneades by mingling the various kinds of law; Grotius responds by rigidly separating them.
Despite his explicit critique of the Romanists, Grotius suppresses the true depth of his disagreement with them. In his response to Carneades, Grotius plants an argument which is as much directed against the jurists as against Carneades himself. Carneades had denied natural right because nature drives all creatures, both human beings and other animals, to pursue their own benefit. Nature is the same for human beings and all other animals.67 As we have seen, the Roman lawyers’ doctrine of jus naturale accepted that Carneadean claim: what is natural is what human beings share with all animate nature. Grotius’s reply to Carneades thus tells as much against the jurists’ conception of jus naturale as against Carneades’ attack: “Man indeed is an animal, but an exceptional animal, far more distant from all other animals, than the other kinds of animal are from each other.” Even if all other animals were as Carneades said, which Grotius denies, humanity is sufficiently different that the jus naturale cannot come to light on the supposition of a uniform animate nature. The Roman lawyers, therefore, can hardly supply genuine knowledge of the jus naturale.68
Instead, Grotius reverts to Stoic doctrine: there are “many traits peculiar to the human species,” chief among which is “the desire for society.” Thus, he continues, Carneades erred when he claimed that all animate beings seek their own benefit, if by that he meant that they seek their benefit at the expense of others. For human beings, living together peacefully with other human beings is precisely the benefit that nature drives them to seek.69 Their good is inextricably intertwined with that of others. But even that formulation is subject to Carneadean misinterpretation. Human beings desire social life not merely in order to realize mutual aid in securing their private benefit; rather, “human nature itself is the mother of jus naturale,” for human beings would be sociable even if they lacked nothing that social cooperation could help them secure. Here Grotius agrees with Aristotle: “Human beings are by nature political animals. Hence they strive to live together even when they have no need of assistance from one another.”70
Grotius concedes there are other social animals. The human uniqueness lies not merely in the end—social life—to which nature impels, but in the specific means wherewith nature equips human beings for that end. Alone of all the animals, humanity has the special instrument of speech. Grotius in part has in mind the familiar point that the faculty of speech, so constitutive of human being, testifies to human sociability, for it is only in society that language thrives and it is through speech that the common or social human world exists. If speech is a unique and therefore particularly revealing quality of the nature of the human animal, then clearly that animal is a social being, and the law of its nature necessarily must reflect that fact.71
Grotius has a further and yet more precise point in mind as well. Only human beings possess “the faculty of knowing and acting in accordance with general rules.” It is the nature of mankind, and only of mankind, to formulate and act in terms of laws. Both Carneades and the Romans were wrong in seeking the dictates of nature in what humans share with other animals. Only human beings raise the question of natural law; only they seek that kind of standard and guidance. Human beings are by nature not merely rational animals, but legal animals as well. That fact points to the character of jus naturale as well as to its existence. Human beings seek to direct their behavior in accordance with general rules, and therefore do not seek merely their own benefit, for, as Rousseau and Kant later developed Grotius’s point, the quality of generality in a rule prevents one from exclusively seeking one’s own benefit. And, contrary to the Roman jurists, what is natural for human beings does not appear in the instinctive promptings (“extrinsic intelligence,” as Grotius puts it) by which nature directs the animals.
Grotius thus identifies as “the source” of the jus naturale the “care for society consistent with (or appropriate to) human intellect.”72 Both parts are important: the natural law springs from natural human sociability, but as expressed rationally, in the mode of “a dictate of right reason.”73 It is, in other words, part of nature, part of jus naturale that human beings be governed by law or lawlike rules. “Only a nature using general rules is properly capable of law (jus).” That implies in turn that not only is the jus naturale not that which is common to mankind and the lower animals, but that the latter are not properly speaking governed by law at all. Jus naturale is not like the law of gravity or the biological laws to which all animate beings must conform. Therefore, when Grotius finally makes explicit his views on the Roman jurists’ treatment of the jus naturale it is no surprise that he is very harsh: the way the Roman lawyers treat jus naturale (and jus gentium) “has hardly any usefulness.”74
Despite the fact that Grotius is a contractarian, his clear and even strident affirmation of natural sociability distinguishes him from the later contractarianism of Hobbes, Rousseau, and even Locke and the American Declaration of Independence. Contrary to what some readers of Grotius have concluded from his contractualism, he has no doctrine of a state of nature.75 Indeed, Grotius explicitly rejected Hobbes’s idea of a state of nature.76 Grotius himself uses the phrase on a few occasions, but his meaning is far different from that with which his successors endow it. He cites Cicero, for example, on the duty we have “to preserve ourselves in a state of nature.” He means by that not a duty to persevere in a prepolitical condition of some sort, but rather to preserve one’s body in a state “that is sound and perfect in all its parts.” This state of nature is the state of natural perfection. Elsewhere Grotius refers to the state of nature in regard to laws regulating marriage; there he interprets the state of nature as the state governed by the law of nature, contrasting it with the “norm of greater perfections” brought in by the “law of Christ,” that is, the positive divine law of Christianity. Neither of these usages has any connection to the later idea of the state of nature.77
Contract and state of nature are not correlative concepts for Grotius or for the Whig thinkers who followed him. Unlike Hobbes, for example, who builds on natural asociality, Grotius understands human beings to be not merely naturally sociable, but also naturally political: it is rational for human beings to live under laws of human discovery or devising, that is, to live politically. Grotius thus rejects the premises about human nature characteristic of theories on the state of nature. He approvingly quotes Plutarch: “By nature no man is or was a wild and unsociable animal.” He approvingly quotes Aristotle: “Man is an animal by his own nature tame.” If human beings do not always show themselves to be gentle, that is due to falling beneath their nature; but, as Grotius paraphrases Aristotle, “what is natural must be seen in those things which hold themselves well according to nature and not in the perverted.”78
The state of nature, according to Hobbes, is the home of the right of nature (jus naturale), or the right of all men to everything, including one another’s bodies. The right of nature implies that the state of war exists not merely factually but rightfully in the state of nature. Somewhat like Hobbes, Grotius concedes the natural rightfulness of deploying force. War, or use of force aimed at preservation, “altogether agrees with the first principles of nature.” Reasoning uncomfortably like the Roman lawyers, Grotius points to the lower animals, among whom nature has distributed weapons for defense, weapons frequently in use. But Grotius avoids the subhuman natural law of the Romans by calling attention to “right reason and the nature of society”; these are “more important than the testimony of the lower animals, and establish the point that nature prohibits not all force but only that which is against society, that is, what takes away the right of others.” The standard for judging the bounds of natural right is “the nature of society”; that both authorizes and limits the permitted use of force. Thus, for example, Grotius denies the universal rightfulness of rebellion under the natural law: even though human beings possess a right by nature to resist threats to their lives and property, yet the polity can inhibit that right “for the sake of public peace and order.” The “nature of society” and its needs simply take precedence over an individual’s right of preservation.79 How different from Hobbes and Locke!
With no state of nature to overcome, Grotius’s contract serves a function different from analogous concepts in the thought of his Enlightenment successors. It is not the means whereby human society is made for purposes of mutual benefit, but it fulfills the far more limited, although still important, function of establishing the constitution, the governing authorities and their powers, and the “degree of subjection” of the populace.80 Grotius supplies the theoretical grounding for the contract as “original contract”; he does not, as we have already noted, develop the notion of consent of the governed in the Lockean direction, ultimately so explosive of the notion of the original contract and so powerfully fraught with republican, or even democratic, implications.81
Grotius revises the Roman law doctrine of jus naturale more or less in the same direction as did the Catholic natural lawyers, who themselves followed the Socratic philosophers, especially the Stoics: natural law takes its bearings from the nature of humanity. And humankind is, by nature, sociable and rational. So far as he develops jus naturale in terms of those themes, Grotius remains firmly within the older natural law tradition, despite some apparent similarities to his more “modern” successors, Hobbes, Locke, and Rousseau.
Yet Grotius also made an important break with the precedent tradition, a break based in part on his intimate connection to the Roman lawyers, a break that in turn unintentionally helped prepare the later triumph of the modern natural rights philosophy. The difference between Grotius and his Socratic predecessors becomes visible in his treatment of the theme of natural rationality. Although Grotius identifies rationality as part of human nature and as highly relevant to the jus naturale, he forbears from developing that theme in the direction Plato, Aristotle, and especially the Stoics had done. For all of those ancient thinkers, rationality pointed toward political life, but also pointed beyond it, or even against it—toward philosophy or wisdom as the natural end of humankind. Since the majority of the inhabitants of political communities are neither wise nor seekers of wisdom (philosophers), the political community is only in an equivocal sense in accord with jus naturale. It was the tendency of natural right thus understood to transcend every actual political community that led the Roman lawyers to develop their universalistic, and therefore subhuman, notion of jus naturale. Grotius rejected that conception of jus naturale, but his reticence about the transpolitical implications of rationality suggests that he may have shared something central with the Roman lawyers.
Grotius appeals to Socratic, especially Stoic, principles in order to respond to the Carneadean (or Machiavellian) challenge and thus breaks with the Roman lawyers and draws much nearer to the Thomist natural law doctrine. But at the same time he retreats from the latter in a way that reflects his continuing debt (despite his criticism) to the Roman lawyers. The Socratic doctrine culminated in claims like the following: Natural justice requires the allotment to human beings of what is proper for them, according to their characters (or natures) and their actions. For example, the wise should rule, or the best flute player should have the best flute. Justice or natural right involves the distribution of goods in proportion to the natural merit or desert of the recipient; justice so understood was accordingly called “distributive justice” by Aristotle.82
Grotius, however, denies that this kind of distribution has anything to do with jus “properly so called.” He does not deny that such judgments may rest on or point toward what is right by nature in some sense, but not in a legal sense. Natural law, strictly speaking, does not deal with those sorts of claims of distributive justice, nor with the full range of natural virtues. Jus strictly and properly so called is not the same as a “dictate of right reason”: there are such dictates that are not law.83 Grotius narrows the range of jus substantially from what it was in the Socratic and Thomist traditions.
Thomas himself had worked a kind of synthesis of the Socratic and the Roman law traditions. The Roman lawyers had retreated to a narrow and crabbed or low version of natural law in order to accommodate nature to their actual legal code. Thomas replaced that with the more elevated Socratic conception of nature and endowed it with the full legal status the Roman texts had found in all laws. Grotius, in turn, revised the Thomist revision in the spirit of the Roman law: Thomas was largely correct as to nature, but mistaken as to law; the natural standards of virtue and distributive justice are not, strictly speaking, law. Thus Grotius approvingly quotes the famous passage from the Education of Cyrus: The coat belongs to the boy who legally owns it, not to the one for whom it is most suitable.84
Grotius distinguishes his law (right) in the strict and proper sense from the enlarged idea of right in terms of a number of differentiating marks.85 It is, first of all, essential to law in the proper sense that it carry along with it an obligation: jus is “a rule of moral acts obliging to what is right (rectum).”86 Nonobligatory counsels or precepts do not qualify as law, even though they may point to what is right or good. Grotius is attempting to distinguish the kind of rightfulness in the claim the best flute-player has to the best flute from the kind of claim the flute’s owner has to it. Although the best flute player has some sort of right—it would be right, fitting, proper for the best player to possess the best instrument—yet there is no clear obligation on the part of any other person to see to it that the best player has the best flute. Law in the strict sense is not equivalent to distributive justice, for the latter does not impose clear obligations on specific parties.
Thus for Grotius obligation becomes the defining feature of law. That distinguishes his view from one alternative that would make law coextensive with sanction. According to Grotius, sanction gives law its outward effect but is not crucial for its existence. Thus both the law of nature and the law of nations, both of which lack sanctions in the ordinary sense, qualify as law without any difficulty. But Grotius does not go as far as many of his theoretical predecessors; mere rightfulness, merely being a “dictate of right reason,” is not sufficient to endow a proposition with the quality of law.87
Secondly, law properly so called has as its source the “care for society” that Grotius identifies as an important distinguishing characteristic of the human species. Human beings are by nature sociable beings and the natural law (properly so called) is what conduces to social life. There is, Grotius concedes, another and “larger signification” of law or jus, again unrelated to the Roman jurists’ universal nature, but rooted instead in specifically human qualities. Jus in this larger sense rests on the human ability to judge and weigh what will conduce to an individual’s thriving or harm in the present or in the future. It includes, in other words, the full range of the natural virtues, so far as the virtues specify what conduces to human thriving. For example, moderation is part of natural right in this larger sense, for it is good for the person who possesses it.88
Law properly so called is not concerned with the full range of virtues, however, but only with those relating to society, and preeminently with justice. Of the cardinal virtues that formed so central a part of ethical thinking within the Platonic-Stoic philosophic tradition, only justice is a matter of natural law. And not all of justice, for from jus in the larger sense derives that notion of distributive justice that Grotius rejects as no part of jus. From the judgment of what contributes to the thriving or harm of persons derives the notion of distributive justice as “the allotment to human beings of what is proper for them, according to their characters and their actions”—allotments, that is, of the things they naturally deserve or benefit from.89 What is naturally right or lawful according to this understanding is what naturally benefits; it is the Platonic-Stoic notion of natural right that the Roman jurists attempted both to incorporate in their law and to tame. Grotius is more emphatic in rejecting it: “Jus properly and strictly so called has a very different nature.” It is “to leave to another what is his or to give to another what is owed.” Law properly so called deals only with others—and not with their good in some abstract sense, but with what is actually theirs or concretely owed them. Grotius comes very close to saying that law (and a fortiori natural law) concerns only the rights of others. “Justice . . . consists entirely in abstaining from what is another’s.”90 The kind of right (jus) Grotius has in mind here, the right to one’s own, which he considers to be right in the proper sense, is said by him to be a “faculty” or a “moral quality of a person fitting him to have or to do something justly.” Right for Grotius is entirely “subjective right” and “active right,” a possession of its holder or subject, something to be exercised (or not) at the discretion of the right-holder; it is no longer objective right, a rightful state of affairs.91 Grotius’s jus has become the sort of right the modern natural rights doctrine affirms.
In reserving the term jus for subjective rights, Grotius innovated only mildly. The ancients, including the Roman lawyers, never clearly distinguished objective from subjective right, but it is clear that objective right was the primary meaning the term had for them. The same is true for the Thomist natural law tradition up to but not including Suárez, who, as we saw earlier, identified jus with facultas—subjective right—in just the same way Grotius did.92 Nonetheless, Grotius differed from Suárez just as much as from others in the Thomist tradition in insisting that jus so understood was the sum and substance of law properly so called. Suárez did not identify jus with all the law there is: he distinguished lex from jus and denominated the natural law lex naturalis.93
Grotius’s doctrine of natural law thus differs from his predecessors’ in these two ways: Jus in the proper sense has become solely facultas, or subjective right, and it concerns only that relatively narrow sphere Aristotle called commutative justice.94 These are innovations of first rank importance. One’s first impression is of a greatly diminished natural law. The differences between Grotius and Thomas, for example, could hardly be clearer, for according to the latter “all virtuous acts belong to the natural law.” Thomas’s affirmation involved an anticipation of the position Grotius later would take, and an explicit rejection of it: Since “it is of the nature of law that it be ordained to the common good,” and since “some acts of the virtues are ordained to the private good of the individual, as is evident especially in regard to acts of temperance,” it might seem to follow, Thomas says, that “not all acts of the virtues are the subject of natural law.” But Thomas dismisses that Grotian thought because “to the natural law belongs everything to which a human being is inclined according to his nature.”95
The more comprehensive character of Thomas’s version of the natural law appears with especial clarity in his quite different manner of relating the Roman lawyers’ version of natural law to that of the Stoics. The natural law, says Thomas, contains a variety of precepts, which correspond to “the order of natural inclinations.” Human nature reveals three levels of such inclinations, levels which, like the jurists’ discussion of nature, have progressively less universality. There is, first, “an inclination to good in accordance with the nature which human beings have in common with all substances, inasmuch, namely, as every substance seeks the preservation of its own being, according to its nature.”96 Self-preservation (and the means thereto) thus is a dictate of the natural law. There is also a human inclination to “those things . . . which nature has taught all animals, such as sexual intercourse, the education of offspring, and so forth,” that is, those things that involve the reproduction and continuation of the species and not just the preservation of the individual.97 Finally, there is a third level of inclination, pertaining to what is humanly unique: reason. “Thus man has a natural inclination to know the truth about God, and to live in society; and in this respect, whatever pertains to this inclination belongs to the natural law: e.g., to shun ignorance, to avoid offending those among whom one has to live, and other such things regarding the above inclination.”98 Grotius’s treatment of the natural law truncates it, directly retaining only the third of Thomas’s three levels as part of it, and of that third, only the part about social life.
Both the identification of jus with facultas and the drastic shrinkage of the natural law in Grotius have reminded readers of Hobbes’s natural rights teaching. Richard Tuck, for example, finds Grotius the real orginator of the kind of natural rights doctrine promulgated by Hobbes, and many other commentators have pronounced Grotius the true founder of modern natural law.99 These scholars are surely correct to see parallel developments in the thought of Grotius and Hobbes, but the transformations of natural law effected by the two are in fact quite different; they proceed from different motives and they involve different philosophic commitments. Both limit the Thomist natural law by simplifying Thomas’s tripartite scheme of law-generating natural inclinations. Where Grotius drops the rest and grounds natural law entirely in one-half of Thomas’s third-level inclination, Hobbes grounds his entirely in the first-level inclination toward preservation. Hobbes finds the nature that grounds natural right in the most universal inclinations human beings share with all beings as such (thus the large role of the law of inertia in Hobbes’s thought).100 Grotius, on the contrary, finds the nature that grounds natural law only at the highest and most humanly unique level. Thus Hobbes presents his revision of the natural law as a major break with the Aristotelian tradition of political philosophy, requiring a full-scale rejection of the “darkness from vain philosophy,” particularly “the vain philosophy of Aristotle.”101 Grotius, on the other hand, modifies both the tradition and Aristotle, but admittedly remains within an Aristotelian orbit. “Among the philosophers Aristotle deservedly holds first place, whether you consider the order of his treatment or the acumen of his distinctions, or the weight of his reasoning.” Most significant, Grotius remains firmly within the Aristotelian framework of the tradition, no matter how much he revises it, by taking his bearings from human rational sociability.102
The immense differences between Hobbes and Grotius show up in the very place in which the two thinkers draw closest together: the notion of jus. “Right strictly so called” for Grotius “signifies the faculty of acting in sole respect to society.” Social nature, and ultimately the social duty to others, grounds right. Thus, for Grotius, a (or even the) defining feature of law (jus) is obligation. But for Hobbes, natural right is solely grounded in the individual’s striving for preservation; as right of every man to everything, the jus naturale necessarily fails to carry with it a correlative duty of any sort.103
Grotius innovates, but withal remains firmly attached to the tradition. To describe his innovations, especially his innovations regarding the meaning and place of jus, in terms of modern natural rights philosophy is to risk missing the inner character of Grotius’s thought. Grotius combined the natural law teachings of the Roman lawyers and the Thomists in an altogether novel way. As we have seen, he takes his bearings to a large extent from Justinian’s jurists, but he rejects their understanding of nature on the grounds that since universal nature cannot reveal the nature of human beings it cannot reveal the human natural law. In that he agrees more or less with Thomas and his followers. He balances his acceptance of a broader and more elevated notion of nature characteristic of the Thomists with a much diminished and narrowed notion of law. What he gives with one hand, he takes with the other. The spirit of that diminution seems, moreover, to be very much the spirit of the Roman law. Grotius shares with the jurists a desire to tame nature and natural justice for the sake of law. For Grotius only a small corner of the realm of the right by nature constitutes the law of nature.
Neither the Roman jurists nor the Thomists had successfully negotiated the Scylla and Charybdis of the natural law—the Carneadean collapse of all law into unnatural or antinatural law and the Stoic transcendence of all actual law by the ideal or abstract law. To avoid foundering in the Stoic manner, the Roman jurists explicitly took their bearings by an untenable (because too low) understanding of nature. So far as they implicitly supplemented that with a more elevated conception of human good as such, they were threatened with a return to the quandary of the Stoics; at the very least they were unable to promulgate a doctrine of natural law of a specific and precise character. The natural law, caught somehow in a tension between two different aspects of nature, is not determinate or lawlike. It has nothing of the character of a legal code, and thus, at the least, depends on wise lawmakers or law compilers for its efficacy. More likely, the exalted natural law will most of the time collapse too readily into the civil law. The civil law, at best, possesses only a hazy relation to the jus naturale. In other words, the Romanists’ solution fails to measure up to the demands set by the post-Reformation context. It does not produce clear and distinct, determinate and certain natural law. Political good remains a matter for the prudent judgment of wise men.
The Thomist solution succeeds no better. It posits a more adequate doctrine of nature, but proves unable to transform that into a genuine law of the sort Grotius sought. One place in the Thomist scheme where that is especially visible is in Thomas’s three levels of natural inclinations. Although they clearly exist in a hierarchy—the inclinations associated with specifically human reason are higher than those shared with all entities—there is still no clear principle of priority implicit in that hierarchy. Thomas implicitly concedes as much when he makes no effort to adumbrate a definite natural code of law. The Thomistic natural law does not achieve the definiteness and certainty of a genuine law.
From Grotius’s point of view, the Thomist version of natural law is especially deficient in the post-Reformation context. Not only are its historical associations difficult to shake off, but it contains principles that exacerbate the characteristic troubles of the age. Thomas ranked at the peak of the natural inclinations those that take their bearings from human rationality: the desire to know God and the desire for social life. Not only does he not specify how the precepts flowing from these inclinations are to relate to precepts flowing from the other inclinations, but he neglects to specify the relation between these two goals of the rational faculty. If, as seems plausible, we understand the orientation to God as specifying simply the highest demands nature places on human beings, then Thomas has in effect enfranchised within his natural law the very theological-political uncertainties that racked Grotius’s age. In the name of such an ordering, various natural law thinkers before Grotius had unrestrainedly urged socially unsettling practices—for example, the assassination of “heretical” rulers—in the name of obedience to higher precepts.104 Grotius’s truncated natural law, absolutizing the demands of social life and of justice, placed all such counsel outside the bounds of the natural law. Grotius’s simplifying surgery was based on an important insight, parallel in many ways to Hobbes’s. According to Hobbes, all natural standards that justify resistance against the ruling authorities jeopardize the peaceful preservation that is the end and purpose of political life. The fundamental point seems to have been discovered by Grotius, however, and adapted by Hobbes to his own preservationist philosophy. According to Grotius, nature dictates social life and social peace. Grotius (unlike Hobbes) does not deny that nature prompts to other ends as well. As a modified follower of Stoic doctrine, he can easily accept Thomas’s version of the three levels of natural inclination, but only the prompting to society is to be understood as law. Social life is facilitated by the existence of definite, specifable rights and duties.105 As opposed to natural goods of individuals, the duties of justice—that is, the social duties relating to others—require the enforcement power that attaches to law in the proper sense, for human beings are more inclined to ignore what is owed to others than what is good for themselves. Thus Grotius strongly endorses Aristotle’s claim that “a community cannot be preserved without law.”106
Not only do the duties of social life require legalization in ways that the other virtues do not, but the treatment of the other virtues as legal unsettles the specific legal duties and rights that attach to the requirements of social life. Every assertion that the best flute should belong to the best flute player rather than to its legal owner unsettles settled rights and threatens social peace. Every assertion that some more naturally deserving set of rulers merit rule more than the legal rulers unsettles politics. Grotius goes so far as to exclude not only the higher claims but also the lower ones. The individual right of preservation, Thomas’s first order of natural inclination, makes no natural and universal claim against existing legal duties of subjection. The other parts of natural right potentially conflict with natural requirements of social life. The latter, as the most necessarily legal (as for the most part witnessed by actual legal practice), is therefore given by Grotius a uniquely privileged position. He does not deny other dimensions of natural right, but he denies them the status of law, for, among other reasons, they can thrive without that status.
NATURE AND CONVENTION IN THE GROTIAN NATURAL LAW
Grotius’s category of law (or right) properly so called represents his attempt to take the legal character of the natural law very seriously. The post-Reformation situation prompted that attempt, but in making it he was facing up to a problem that had been implicit all along in the idea of a natural law: does natural right have the character of a law?107 The post-Aristotelian natural lawyers had answered yes, but in various ways their versions of natural law had fallen short of presenting an authentically legal code. In so doing, they left a theoretical and a practical opening for both the Reformation’s unsettling of politics and the renewal of the Carneadean-Machiavellian cynical-realist rejection of natural right. Having reformulated the natural law as he did, Grotius could claim to be the first to present the true art or science of law.108
Grotius’s reform of the tradition was meant to repair these deficiencies by producing a doctrine far more precise and lawlike and at the same time more realistic and effective. A key part of his effort in both directions lay in his new teaching on the relation between nature and convention, or human agreement. As we have already noticed in the Grotianism of Gilbert Burnet, as well as in Grotius himself, one of the most characteristic features of this new natural law doctrine was the strongly determinative force of human agreement, a feature that came to underlie Whig theories of the original contract and gave shape to various alternative Whig approaches to 1689.
It is a frequent, but not for that reason just, complaint against Grotius that he leaves the natural law vague and hazy at best, almost contentless and merely subjective at worst.109 I question the justice of these charges, because compared to Thomas, for example, Grotius is quite specific in his presentation of the natural law. He states the natural law provisions regarding the very broadest matters (such as the origin of political power and private property), as well as the most detailed and specific ones (such as whether a declaration of war is required, or when promises are naturally obligatory). Grotius’s most comprehensive statement of the tenets of the law properly so called occurs early in his text: “abstention from what belongs to others, and if we have what is another’s, we should restore it or any gain we made from it, the obligation of fulfilling promises, the reparation of loss done through fault, and the rightfulness of punishing human beings who deserve it.”110 Much of this list is familiar from our earlier discussions, but especially important for Grotius’s scheme is the central item, the obligation of fulfilling promises: “It is [a precept] of the law of nature to stand by pacts.” Grotius’s explanation is especially revealing. “It was necessary among human beings that there be some way of obligating themselves, and no other natural way can be framed.” Recall the beginning point of our discussion: the unusually powerful role that agreement, or convention, plays in Grotius’s theory, such that the terms of the “original agreement” definitively set forth the powers of rulers and the liberties of subjects. The obligaton to fulfill promises is not merely one among many natural law obligations, but stands preeminent. From it derives the validity of all positive law, both the jus gentium, based on mutual consent of states or peoples, and the civil law, the internal law derived from constituted authorities.111
It stands at the same time as Grotius’s answer to the problem of nature and convention. Grotius goes even further than the Roman lawyers in validating convention. Convention (agreement) is not contrary to nature, but it carries with it an obligation derived from nature. Grotius explicitly grounds his refutation of Carneades on this point. The “mother of justice” is not utility, as Carneades and others had said, but natural law, or, ultimately, human nature. Compacts (mutual promises) are to be kept not solely because they are useful (presumably they are useful or else human beings would not make them), but because they are genuinely obligatory. They are obligatory, it appears, because this kind of mutual engagement is one major mode by which human beings relate to each other socially; through mutual engagement and compact human beings enter into fixed relationships with each other, setting terms of cooperation and interaction. Compact, contract, promise, and related modes of voluntary engagement set the terms for, facilitate, and even make possible much of the social life of beings who are rational. More than that, such engagement is a suitable way for rational beings to interact, for it involves the guidance of life through the exercise of reason and choice.
Compact, contract, and promise can fulfill their facilitating function for society only if the undertakings agreed to in them are faithfully fulfilled. Since they are efforts to bind the future and to condition some present actions on other future actions, they can never fulfill their function if there is no regular and reliable expectation that the obligations expressed in them will be carried out. But there can be no such expectation if the fulfilling of compact is merely a matter of utility, if there is no moral obligation beyond usefulness. The futural character of contract implies this: since agreement binds future actions, not all of which are to occur at the same time, it may be the case that after one party fulfills the terms of the agreement it is no longer useful to the other party to do so. Only an obligation essentially independent of usefulness can secure the general practice of compact. Thus, Grotius concludes, the law of nature that dictates society dictates the obligation to fulfill promises. Hence George Sabine was really quite off the mark when he concluded that Grotius shared in an assumption Sabine identified in “nearly all thinkers of the natural law tradition in the seventeenth century”—that “an obligation to be binding must be freely assumed by the parties bound,” that is, that “obligation is always self-imposed.”112 The obligation to fulfill compacts is not self-imposed, but is imposed by nature. Sabine confuses here the further obligations incurred via agreements with the obligation, so to speak, to fulfill obligations. As Grotius says, “That promises should be performed comes from the nature of immutable justice, which is . . . common to God and all those who make use of reason.”113
Most but not all of the obligations human beings live under turn out to derive in one way or another from human agreement—either the private agreements that are contracts and related acts, or the public agreements that produce the various sorts of positive law. The law of nature, while certainly not contentless, in many cases merely brings us up to, but not beyond, the threshold of positive undertakings and gives them moral validity. Natural law is relatively silent, and leaves much (although certainly not all) to positive determination. Both Grotius’s rigorous distinction between natural and voluntary law and among the different kinds of law reflects his desire to keep the content of obligation-generating acts of agreement relatively pure; this segregation in turn serves the purpose of keeping the content of jus as precise and definite as possible. In Grotius, therefore, consent comes to hold a far more determinative position than it had ever held before. The jus gentium is to be found entirely in the realm of consent, and the authority of the civil process is decisively determined by consent.114
All this accords with the deepest thrust of Grotius’s thought, toward both a very determinate and specific standard of right, a standard beyond the vicissitudes of religious and political controversy, and an effective standard, one that can stand up to the sneers of the Machiavellis of the world, who say that the natural law is “weak and unarmed.” The role of positively generated obligations in Grotius promises well on both counts. Grotius provides a method to produce a definite answer to the question of where to look to find the ruling obligations—in specific promises, contracts, agreements, and statutes. Not the socially contentious and ever-interpretable Bible, nor a vague and indeterminate nature, but empirical or historical reality is the locus for searching out most authoritative obligations.
Moreover, if agreement of one sort or another generates most obligations, then there must be some ultimate congruence between the interests of human beings and their duties, for they will not make agreements that do not promise some good to themselves. Law remains for Grotius an ideal, often standing against the immediate interests of individuals, but the gap between the real and the ideal is meant to be much narrower under the Grotian dispensation than under earlier versions of natural law. Thus Grotius hoped to avoid the position of those ridiculous men who preached an otherworldly justice to unjust men or who preached pacifism to the bellicose, without at the same time falling into the moral cynicism of Carneades and Machiavelli.115
Grotius’s sweeping success in England and elsewhere in Europe proves that he had succeeded, to some degree at least, in fashioning a political doctrine that political men found worthy and useful. Nonetheless, sometime in the eighteenth century in England the authority of Grotius came to be supplanted by that of Locke. In retrospect, it is difficult not to see Grotius as a transitional figure, in effect although certainly not in intent. Grotius contributed to the ultimate triumph of the natural rights philosophy not because, as some scholars claim, he propounded a philosophy of that sort himself, but because from his different Aristotelian principles he accustomed political men to thinking about politics in terms that the natural rights philosophy would later adopt. Most important was Grotius’s notion of “law (jus) properly so called,” a narrower doctrine of law and politics than had prevailed theretofore and one that shared much with Lockean natural rights philosophy. Had Grotius not (so successfully) reinstated and then transformed the natural law tradition, it is difficult to imagine writers like Locke succeeding in their more far-reaching break with the tradition.116 Grotius, therefore, is part of our story of the emergence of the natural rights republicanism of the American founding in a twofold way. Because he was the deepest expression of the Whig thought that dominated in 1688–89 in England and yet was so different from the later Lockean thought, he serves as a point of contrast. But he also helped prepare the way for the coming of the new natural rights philosophy.
Grotius thus contributed to the coming of modernity, even if he was not part of its creation himself. It is tempting to view that process in reverse-Hegelian terms. English political thought as it entered the decisive seventeenth century was much like that in the rest of Europe (allowing for specific accents and emphases associated with English political history)—some form or forms of Christian Aristotelianism. The various emergent doctrines of the seventeenth century—royalist divine right theory, parliamentary contractarianism, Whig Grotianism—all betray the prior sway of Christian Aristotelianism. Those forms of Protestant political thought that have figured in part 1 of this study were all constituted through a negation (or extreme diminution) of the Aristotelian element in the inherited synthesis. Aristotelian nature gave way to more strictly biblically or theologically grounded modes of political thought as the English political nation set off on its quest for the Holy Grail of the true political Protestantism. Grotius and the Whigs negated the Christian Aristotelian synthesis in the opposite direction. A modified yet still reconizable and vibrant Aristotelianism set aside the biblical-theological dimensions of the synthesis in favor of a rational philosophic politics aimed at setting political life on a more certain, stable, and universalistic foundation. The chief marker of this second movement in seventeenth-century thought was the reemergence and reformation of natural law philosophy, and especially the dominance of Grotius’s theologically neutral natural law.