The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Translator’s Preface
• Part One: History of the Idea of Natural Law
• Chapter I: The Legacy of Greece and Rome
• Chapter II: The Natural Law In the Age of Scholasticism
• Chapter III: The Turning Point: Hugo Grotius
• Chapter IV: The Natural Law In the Age of Individualism and Rationalism
• Chapter V: The Turning Away From Natural Law
• Chapter VI: The Victory of Positivism
• Chapter VII: The Reappearance of Natural Law
• Part Two: Philosophy and Content of the Natural Law
• Chapter VIII: Being and Oughtness
• Chapter IX: Intellect and Will
• Chapter X: The Structure of the Sciences
• Chapter XI: The Nature of Law
• Chapter XII: Morality and Law
• Chapter XIII: The Content of the Natural Law
• Chapter XIV: Natural Law and Positive Law
• Chapter XV: Conclusion
• Select Bibliography
• General Studies
• Ancient
• Medieval and Scholastic
• Enlightenment
• Anglo-american
• Contemporary Debates

CHAPTER III

The Turning Point: Hugo Grotius

Among historians of philosophy the view prevailed for some time that René Descartes (1596–1650), a deus ex machina as it were, founded modern philosophy with its primary, indeed almost exclusive, concern with the thinking subject, with the study of individual consciousness and experience. But this view has long since been shown to be unwarranted. Descartes’ philosophical system was no creation ex nihilo. The latest research has conclusively demonstrated. Descartes’ connection with Scholasticism. There existed before Descartes no “desolate waste of scholastic subtleties and sophistries.” What did exist was a great philosophical system, and Descartes still stood in its stream, as the history of the various philosophical problems proves.

Quite as untenable is the view, long held, that the doctrine of natural law began with the Dutch scholar, Hugo Grotius (1583–1645), often hailed as the Father of Natural Law. For Grotius was still closely connected with the teachers of the preceding centuries. He stands out more through the first formal inclusion of natural law and positive law in international law than through any intellectual contribution of his own. He may be said to have marked the transition from the metaphysical to the rationalist natural law. The notion that the natural law would still have some validity, etsiamsi daremus … non esse Deum, aut non curari ab eo negotia humana,1 played a certain role in his thinking. Yet Grotius did not profess the implied complete autonomy of human reason as the sole and not merely the proximate source of the natural law. He considered God to be the highest source of the natural law, and he likewise regarded Holy Scripture as a principle of knowledge on an equal footing with reason. Grotius still lived too much in and with tradition to be able to construe the natural law in a deistic manner.2 He understood recta ratio in the same sense as did the great Spaniards. One may even say that, in a world which had forgotten the achievement of past ages, his celebrated definition of natural law represents an attempt to settle by compromise the controversy between Suarez and Vasquez, a controversy that bulked large in his day.3

The famous definition runs as follows: “The law of nature [ius naturale] is a dictate of right reason which points out that an act, according as it is or is not in conformity with rational [and social] nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God.”4 Here, in fact, is Vasquez’ doctrine of lex indicans combined with Suarez’ intention to bring out the character of the lex naturalis as lex, which, in its coming into force or in its existence, is derived from the will of God. In addition, the significant adjective socialis occurs in the same way among the Late Scholastics for the purpose of distinguishing and contrasting lex naturalis and ius naturale. In Grotius’ thought the socialitas of rational nature was not yet, as it was to be for Pufendorf, the sole source of natural law.

Grotius followed the Scholastics even in his psychology. He placed the rectitude of voluntary action in a twofold conformity: that of the intellect with the thing or object, and that of the will with the intellect. Nevertheless his design of vindicating the absolutist doctrine of James I of England drove him back again to the primacy of the will. He accordingly defended the nominalist doctrine that essentially bad acts are evil, not because they are intrinsically at variance with God’s essence, but because they are forbidden by God. Of course he looked upon the further question of why God in His freedom has so decreed as unanswerable by human reason.

The Late Scholastics had sought to determine the relationship between law and morality from the standpoint of the virtues: right is the specific object of justice as distinguished from the other cardinal virtues (prudence, temperance, fortitude). In its threefold form (commutative, distributive, and legal), justice regulates the social relations: first, of those possessed of equal rights; secondly, of public authorities to their subjects; and thirdly, of citizens to public authorities or to the state. In Grotius’ system sociality plays a disproportionate part. Law is that which results from the appetitus socialis. Morality has little to do with sociality; it rather represents normative judgments concerning the worth or worthlessness of things.5 Furthermore, like Suarez, Grotius did not regard the debitum ex pietate as a debitum iustum, since it is neither subject to an action at law nor enforceable. Again, as among the Greeks and Scholastics, the ancient conception of justice as virtue itself is found in his writings. Thus the ius naturale comprises the whole of natural ethics.

It was unfortunate for Grotius that he gave little or no heed to the circumstances which the Scholastics had always stressed: the circumstances and conditions which in the case of the affirmative precepts of the ius naturae determine the application of a norm that in itself is unchangeable. (Suarez says, for instance, that obedience to the state in time of war takes precedence over the natural-law duty of a son to care for his parents.) The Scholastics had held that only the first principle of the natural law is clearly evident, and that at most the immediate conclusions (the Decalogue) share in such evidence, which, however, may yet be obscured by the passions. On this ground they had acknowledged the necessity of positive law, whose function, they contended, is to enlighten us on the good to be done and by penal sanctions to restrain us, dominated as we are by our passions, from the evil to be avoided. But Grotius was a rationalist. He believed it possible to derive by strict logic a suitable system of rational law having force that would be great enough to bind the will: a body of law with detailed prescriptions covering debts and property, the family institution and inheritance. The Scholastics, on the other hand, considered only the general institutions themselves of marriage, property, and contract as belonging to natural law, not the particular prescriptions about marriage and the family, possession and the form of private ownership, and the like.

Grotius’ undying merit was his systematizing of international law, which he placed upon the solid foundations provided by natural law. Grotius, who paid homage to his predecessors, to Vittoria and Suarez among others, lived in an age of fierce wars. The civitas christiana was being rent asunder in its great civil war (Thirty Years’ War, 1618–48), which, like all civil wars, was being fought with enormous cruelty and frequently outside the pale of legal norms. In the midst of all this, however, he put forward with great power and impressiveness, cogently and systematically, the idea of the rule of law even in wartime. He thereby revived the intellectual unity of the West, after its religious unity had been rent, by means of the great traditions of the very Christianity which had always honored reason. Thus he substituted intellectual solidarity based upon reason for solidarity based upon a now divided faith.

Yet it must be said that Grotius, precisely because of such rationalism, was not so happy in his treatment of the ius gentium as were the Late Scholastics. The clear separation between the natural-law contents and positive contents of the ius gentium, as occurs in Suarez’ treatment, was, at the hands of Grotius, again partly lost. The path was thus cleared for Pufendorf’s equation of ius naturale and ius gentium.

Grotius thus stood in the twilight between two great epochs. Still linked by many ties to the preceding age, he yet served to transmit to the natural-law theory of the modern period its distinguishing marks: rationalism, sociality, and particular political aims. In all this he resembled Descartes, whose close connection with the epistemology and metaphysics of Late Scholasticism has been uncovered by recent research. Nature makes no leaps: this axiom is valid also in the history of thought. Historians of philosophy, unfortunately, sometimes mistake emphasis for novelty.

[1.]“What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him” (De jure belli ac pacis libri tres, Prolegomena, II, trans. by Francis W. Kelsey and others for The Classics of International Law, edited by J. B. Scott, Oxford-London, 1925). According to A.-H. Chroust, “this famous passage from Grotius is but a rebuke of William of Occam’s and Hobbes’s voluntarism or ‘positivism’—by that we mean something valid because of its being posited or willed by someone—and an indirect proof of Grotius’s belief, quite in accordance with the Thomistic tradition, in the perseitas boni et iusti” (“Hugo Grotius and the Scholastic Natural Law Tradition,” The New Scholasticism, XVII [1943], 126). Cf. also, ibid., notes 88 and 89.

[2.]The thesis of Chroust is that “Hugo Grotius constitutes but a direct continuation of the great Natural Law tradition which stretches from St. Augustine to Suarez, and which culminated in St. Thomas” (“Hugo Grotius and the Scholastic Natural Law Tradition,” ibid., p. 125).

[3.]Chroust is of the same opinion (ibid., pp. 129 f.).

[4.]De jure belli ac pacis libri tres, Bk. I, chap. 1. The important qualifying phrase and social is strangely missing both in Kelsey’s English translation and in the Latin edition (1646) on which it is based.

[5.]But see A.-H. Chroust, op cit., pp. 131–33.