Liberty Matters

Liberty and the Law

Fernando Tesón reminds us of the crucial importance of the distinction between the law of nature and the law of nations when it comes to the cause of liberty in the modern world. I agree with most of what Fernando has written on Grotius’s natural law, yet I would put some emphases different, and propose a divergent reading of Grotius. I believe that by constructing Grotius as a proponent of a deliberative theory of justice we can better understand both Grotius himself as well as the great impact he enjoyed in the 17th and 18th century.
Fernando has proposed four main theses: 1) the law of nations makes the law of nature impotent, partly through a mechanism provided by the law of nature itself: pacta sunt servanda; 2) the right of resistance against the government, which is denied citizens because resistance would dissolve the state, is only allowed in extreme necessity; 3) warfare is to be humanized, and the appeal is to monarchs (governments) to do what is morally recommendable (the decorum); 4) private property might be the foundation for constitutional rights.
Let us start with the right of resistance. In the chapter from The Rights of War and Peace (1625) that deals with war of citizens against their government, we find an intriguing sentence:
The praetor renders justice, even when he pronounces an unjust sentence [IPB I.4.3 (p. 344)].
The ambivalent use of “just” here suggests that the social function of rendering justice does not necessarily agree with everyone’s idea of what is just. Yet it renders justice because this praetor was the Roman official to whom citizens would bring their complaints against fellow citizens in order to resolve their disagreements. Precisely in negotiating divergent ideas of what is just in a particular case the rendering of justice consists. Four actiones, or legal remedies, could be sought from the praetor: concerning property, debt, recompense for incurred injury, and punishment. For Grotius this represents justice in its core sense. And he then postulates what will be central in his law of war and peace: 
Now, as many Sources as there are of judicial Actions, so many Causes may there be of War. For where the Methods of Justice cease, War begins. Now in Law there are Actions for Injuries not yet done, or for those already committed. For the First, When Securities are demanded against a Person that has threatened an Injury, or for the indemnifying of a Loss that is apprehended; and other Things included in the Decrees of the superior Judge, which prohibited any Violence. For the Second, that Reparation may be made, or Punishment inflicted; two Sources of Obligation, which Plato, and before him Homer, have judiciously distinguished. As for Reparation, it belongs to what is or was properly our own, from whence real and some personal Actions do arise, or to what is properly our due, either by Contract, by Default, or by Law. To which also we may refer those Things which are said to be due by a  Sort of Contract, or a Sort of Default: From which Heads all other personal Actions are derived. The Punishment of the Injury produces Indictments and publick Judgments. [The Rights of War and Peace, II.1.2.1 (p. 394-6).]
By property Grotius naturally meant: life, liberty, and estate:
The Right which a Man has to his own, which contains 1. Power over ourselves, which is termed Liberty. 2. Property, which is either compleat or imperfect. 3. The Faculty of demanding what is due. [ (I.1.5 (p. 138-9): ius, sub quo continentur Potestas, tum in se (libertas), tum in alios, Dominium plenum sive minus pleno (usufructus, creditum). The English translation is rather free.]
Thus, justice is that which the praetor as the representative of the society provides, and war is the continuation of defending our claims in the absence of justice. But then what is a civil war? It is either a war among individuals, after the state has been dissolved, or it is a war between civil society and the political incumbents. The first case is well-known from Hobbes; the second case from Locke. Dutch followers of Grotius would argue that violent resistance against an incumbent who trespasses people’s constitutional rights (and thus in older parlance becomes a tyrant) is allowed, because this incumbent has become an enemy of the citizens. That is to say: either the government provides justice (even if by an unjust sentence) and thus cannot be attacked, or it stops providing that justice and becomes a private enemy. One might say that Grotius distinguishes – like Albert Hirschmann – “voice” and “exit.”
The Rights of War and Peace is mainly about war, and war is connected to justice by at least two strands: 1) the good of humanity and 2) the laws of war. Therefore both the law of nature and the law of nations apply to warfare. Hobbes and Pufendorf have famously argued that there is no law of nations in international law: each sovereign nation pursues its own interests on the authority of the law of nature. Grotius apparently doesn’t share that point of view. He sees – like an anthropologist – customs, practices, and regulations among (most, or the most advanced) nations, partly in the form of treaties, partly in the form of agreement among jurists: the water in wells ought not to be poisoned, ambassadors should be granted safe-conduct, etc. It is true that some of these customs are hair-raising: killing, robbing, and destroying was already prominent in the Old Testament, and hasn’t stopped since. Yet one might also try to find ways to escape the fate of war, by pursuing one’s rightful claims by legal means, and attempting when warfare is unavoidable to promote the common values of humanity that are shared among the nations. This is the famous Grotian Quest that went into the founding ideology of the Peace Palace in The Hague.
Notwithstanding this, Grotius was a political realist, who agreed with Machiavelli that it is more important to describe politics as it is than to build a Utopia in the air. There is a strong element of reason of state in his writings in general, and in an intriguing way, in his natural law as well. The justice that is central to his concept of sociability and that of war is a minimal justice of property rights, but otherwise politics, including the civil laws that politicians legislate, is about utility.
So it might happen that a government decrees that landed property can only belong to the nobility, as it was in Poland and in Brandenburg in the times of Grotius. Such a ruling does not prevent justice from being applied, even while it is unfortunate for the merchant or the farmer in such a country. Grotius would be the first to point out that such a ruling is also very disadvantageous to the well-being of the state, since it will lower agricultural production and chase away tradesmen and other commercial entrepreneurs. Since without a system of justice a state cannot exist, it is in the interest of that state to have a praetorial arrangement, with a concomitant interest in perfecting its system of justice as much as it can. The constitution of the state is the outcome of a historical process of adaptation, in which former agreements are replaced by new interpretations and arguments allow new agreements to arise. The great variety of constitutional forms in his days was ample proof of this historicity of the state. Consequently, Grotius makes the “more advanced nations” the benchmark for the contents of the law of nations, which in this respect is a kind of “secondary law of nature.” As such, this law of nations must be considered to be the “primary law of nations,” while the “secondary law of nations” is the purely volitional part of the law of nations. Pufendorf considered this distinction utterly unhelpful, for the good reason that if one considers all laws to express the will of their lawgiver (whether that is God or the sovereign), there is no place for intellectual exercises like the “consensus omnium.” the considered opinion of the wise.  And that is precisely what a deliberative theory of justice would propose: institutions for public reasoning that allow agreements to appear. Agreements are the hallmark of truth, and to stand by one’s truth is an expression of character.
But in the end, for Grotius there is no objective value, and everyone is the interpreter of his own interests, values, and preferences. It is on that basis that the praetor/judge is essential in any social form as the point at which to negotiate these interests, values, and preferences. It is for this reason that man has ratio and oratio, reason and speech, the two instruments for social deliberation.
God created man autexousion, “free and sui iuris,” so that the actions of each individual and the use of his possessions were made subject not to another’s will but to his own.… For what is that well-known concept, “natural liberty,” other than the power of the individual to act in accordance with his own will? [Commentary on the Law of Prize and Booty (1604-5), II (p. 33-34)]
There has been something like an ideological war among natural law thinkers in the 17th and 18th centuries – to some extent replicated in present-day histories of natural law – and Grotius has been called as a witness on practically all of the contentious points. Consequently we have many different Grotiuses: Grotius the absolutist, according to Rousseau; the liberal (Adam Smith); the confused thinker (Pufendorf), and so on. Grotius’s natural law equally shows this capacity for multi-interpretability: the last of the Scholastics (Peter Haggenmacher), the first modern (Richard Tuck), or something in between (Annabel Brett). Grotius for sure is himself at least partly responsible since he likes to overargue his case by giving multiple arguments from different philosophical backgrounds (Aristotle, Plato, Stoics, Epicureans, and Skeptics) and from different literary sources (Bible, poets, classical philosophers , Scholastics). Look at how he describes the law of nature. It is “not those written laws, indeed, but the immutable laws of Heaventhe sole judge is natural reason” (IPC, I, p. 16).  “Baldus, who has wisely ruled that in any controversy arising between claimants of sovereign power , the arbiter of good and evil.” The laws of nature are ordained by God, but through his creation; they are discovered by the joint intelligence of mankind (the consent of all nations). Moreover, the distinction between the primary and secondary law of nature doesn’t help to clarify. And the law of nature can be known a priori and a posteriori. Grotius clearly misses an awareness of the issues that will become crucial for his successors in natural law.
Yet there is method in this madness. Grotius has a habit of using unlikely candidates to speak in his support. In the Commentary, e.g., Grotius quotes Aristotle to support his notion of subjective rights against the Aristotelian conception of objective value. This type of forensic rhetoric has irritated his more philosophically minded readers, yet it should not distract one from seeing how effective Grotius was with this strategy. He inescapably introduced a legal and political individualism into the intellectual mindset of Protestant countries, together with a reworked cosmopolitanism meant to overcome the disastrous effects of reason-of-state politics. This legal and political individualism was considered to be central to the commercial success of the Dutch Republic, and thus permeated social and political thought all over Europe, sometimes in a more authoritarian fashion (Hobbes, Pufendorf, Rousseau), sometimes in a more libertarian fashion (Locke, Smith). Theologians wrestled with jurists, political thinkers with historians, and grand schemes of natural law took the place of Grotius’s attempts in the early 17th century to salvage justice from European warfare. But his success was more solid as it had become almost invisible.