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Grotius and the Natural Law Tradition

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Source: This essay first appeared in the journal Literature of Liberty: A Review of Contemporary Liberal Thought, vol. 1, no. 4 October-December 1978 published by the Cato Institute (1978-1979) and the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio. Although the editorials were unsigned, they were probably written by the Editor Leonard P. Liggio or the Managing Editor John V. Cody. It is republished with thanks to the original copyright holders.

The uniqueness of Greek and Roman culture is important in accounting for the crucial difference between European and non-European civilizations. Whatever the status of the debate over "the Ancients and the Moderns" (the classicists claim the pygmy Moderns are standing on the shoulders of the giant Ancients), European civilization has been profoundly influenced by the perfections and faults of the classical world. The concept of natural law is the heritage from the Ancients which has had the most profound impact on the flowering of liberty.

Natural Law flourished in the Hellenistic period under the Stoics from the Greeks Zeno of Citium and Chrysippus to the Romans Cato the Younger, Seneca, and Marcus Aurelius. The Stoics posited an identification of physis and nomos, nature and law. The wise man lived in harmony with nature; he was not dragged in the train of events. The Stoics emphasized the "common. law" of all peoples, jus gentium, the law of nations against each state's civil or public law. Chrysippus, "a philosopher learned in history, delighted in collecting examples of historical relativism; but like all the Stoics he was undisturbed by the diversity of the phenomena, for behind all the variety there is agreement at least about the basic issues, the agreement of reasonable men of all times and countries".1 Thus, although Chrysippus' historical knowledge caused him to regard all human laws as mistaken, this did not lead him to the disorder of government by man over man as it did with the Sophists. This knowledge led him instead to praise the order of the universality of natural law and each person's equality before that law.

The law of nations, which the Stoics viewed as the shadow of natural law, was derived from principles of private law as developed by Roman law-finders. Hayek has compared the persistence of private law, rooted in spontaneous social relations, to the ephemeral character of public law, based on political, imposed relations.2 Hayek relates the achievement of some degree of individual liberty to societies like ancient Rome and England, where private law was in the hands, not of the government (legislators and executives), but of private law-finders (jurists and judges). Hayek's and the Stoics' analyses are complimentary.

Stemming from the Stoics and Thomas Aquinas and reaching down to Adam Smith and Thomas Paine, natural law has been the basis for the development of modern liberalism. However, the writings of Hugo Grotius (Huig van Groot, 1583-1645), especially De jure belli et pacis (1625), constitute a watershed in the history of ideas because Grotius completed the process of founding natural law in human nature. F. J. V Hernshaw,3 has emphasized that the origins of Grotius's exposition can be found in the then great debate over whether obedience should be paid to political authority. Juan de Mariana, S. J. (1536-1624), Spanish historian and theologian, argued in De rege et regis institutione (1599), that it was lawful to overthrow a tyrant.4

Grotius inherited his opposition to tyranny. His father was the curator of the University of Leyden, center both of commercial Holland's Republican opposition to the militarism of the Princes of Orange as well as of the anti-Calvinist and bourgeois Arminianism. Grotius devoted himself to expounding the Arminian view of tolerance; his religious writings emphasized that the truths of Christianity, which were held in common by Catholics, Calvinists, Lutherans, and Arminians, were fundamentally more important compared to the peripheral points on which they felt they differed.

Grotius's appetite for learning and his encyclopedic knowledge were recognized at age twenty when he was appointed Historiographer of his province, Holland. Historical research continually engaged Grotius's attention, and his historical writings included De antiquitate reipublicae Batavae and the Annals of the Low Countries, on which he worked until his death.

In 1609 Grotius published one of his most significant works, Mare Liberum. To the question of whether the seas could become state property, he answered a resounding no! No government had the right to exclude other nations' merchant ships from any seas. Soon England sought to claim the exclusive use of the North Sea and English Channel, and the master historian of English law, John Selden (1584-1654) in Mare Clausum (1632) vainly attempted to rebut Mare Liberum.

Grotius, as Pensionary of Rotterdam, wrote an edict of toleration which was issued by the States General of the United Provinces of the Netherlands. Religious toleration was opposed by the Prince of Orange, the military commander, who sided with the Calvinists against the Arminians. In part, the prince reacted to the Dutch bourgeoisie (the Arminians) who insisted upon acceptance of the favorable peace offered by Spain in order to concentrate on commercial activities. The prince, rural gentry, and Calvinist clergy saw peace as undermining discipline while introducing luxury based on commerce. In 1618, the privileged, military Calvinists struck at the capitalist Arminians. By a coup d'état, the prince's army disarmed the militias of the Dutch cities. The Republican leaders, Johan van Oldenbarneveldt and Grotius were arrested. The former was executed and Grotius condemned to life imprisonment. Rescued by his wife's efforts, Grotius escaped in a chest which was supposed to contain his Arminian books; he was given refuge in Paris (1621).

The beginning of the Thirty Years' War (1618-1648) with its pillaging, violation, and massacre of civilian populations horrified Grotius. Aided by the researches of his brother, William, and his own unrivaled memory, Grotius wrote De jure belli et pacis (1625) in one year. Basing himself on the Stoics, Roman jurists, and medieval scholastics, Grotius drew most heavily from the sixteenth century Spanish philosophers of law-Francisco de Vitoria (1483-1546), Luis de Molina (1536-1600), and Francisco Suarez (1548-1617).

Grotius, in his Prolegomena to The Law of War and Peace, states that man is characterized by a strong sociability, by a desire to spend his life together with his fellow men, "and not merely spent somehow, but spent tranquilly and in a manner corresponding to the character of his intellect. This desire the Stoics call the domestic instinct, or feeling of kindred." Grotius denied the universality of "the assertion that every animal is impelled by nature to seek only its own good" since some animals "restrain the appetency for that which is good for themselves alone, to the advantage now of their offspring, now of other animals of the same species." Sympathy for others develops spontaneously among children, and increases with maturity "together with an impelling desire for society, for the gratification of which he alone among animals possesses a special instrument, speech. He has also been endowed with the faculty of knowing and acting in accordance with general principles."

Grotius derived from this sociability the concept of law. "To this sphere of law belong the abstaining from that which is another's, the restoration to another of anything of his which we may have, together with any gain which we may have received from it; the obligation to fulfill promises, the making good of a loss incurred through our fault, and the inflicting of penalties upon men according to their deserts." Finally, Grotius emphasized the scholastic concept of time-horizon: man's power of discrimination between "what things are agreeable or harmful (as to both things present and things to come), and what can lead to either alternative, in such things it is meet for the nature of man, within the limitations of human intelligence, to follow the direction of a well-tempered judgment, being neither led astray by fear or the allurement of immediate pleasure, nor carried away by rash impulse. Whatever is clearly at variance with such judgment is understood to be contrary also to the law of nature, that is, to the nature of man."

The pressures of the Thirty Years' War created the conditions for revolutions throughout Europe. The most famous were the Republican movements in the English Civil War and the Fronde in France. But Grotius did not live to see his vindication in the restoration of Republican rule to the Netherlands. The Peace of Westphalia (1648), which ended the Thirty Years' War, was concluded by the pacific Dutch capitalists and was opposed by the Prince of Orange. Finally, the Republicans gained dominance and established a decentralized constitution with each province controlling the army and religion within its own borders.

This history was well-known to the fathers of the American Revolution. Likewise, the impact of Grotius's jurisprudence was transmitted to them via Samuel Pufendorf (1632-1694), through Locke, Rousseau, Barbeyrac, Burlamaqui, Blackstone, and Montesquieu.5

Endnotes

[1] L. Edelstein, The Meaning of Stoicism (1966).

[2] F. A. Hayek, The Confusion of Language in Political Thought (1976).

[3] F. J. V Hernshaw, The Social & Political Ideas of Some Great Thinkers of the Sixteenth and Seventeenth Centuries (1926).

[4] Oscar Jaszi & John D. Lewis, Against the Tyrant (1957).

[5] Forrest McDonald, "A Founding Father's Library," Literature of Liberty 1 (January/March 1978].

Last modified April 10, 2014