Brett Natural Right and Civil Community Grotius

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1/22

Natural Right and Civil Community: The Civil Philosophy of Hugo GrotiusAuthor(s): Annabel BrettSource: The Historical Journal, Vol. 45, No. 1 (Mar., 2002), pp. 31-51Published by: Cambridge University PressStable URL: http://www.jstor.org/stable/3133629.

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2/22

The Historical

Journal,

45,

i

(2002),

pp.

31-51

?

2002

Cambridge

University

Press

DOI:

Io.o

I

7/SooI8246Xoo1002102

Printed in the United

Kingdom

NATURAL

RIGHT

AND

CIVIL

COMMUNITY: THE CIVIL

PHILOSOPHY OF

HUGO

GROTIUS*

ANNABEL

BRETT

Gonville

and Caius

College,

Cambridge

ABSTRACT.

Hugo

Grotius as

always

beenviewed s

a theorist

f

either

nternational

r

natural

law. However, hesedesignationsbscure hecivic ocus of his work,rom his earlyrepublican

treatises

hrough

o De iure belli ac

pacis.

From

ixteenth-century

umanist nd

legal-humanist

Aristotelianism,

rotius

onstructed

framework

f

natural

ight

which nabled imon

theone

hand

to locatehe

origins f

thecivil

community

n natural

man's

uridical

apabilities,

uton

the

other

o

give

this

'city'

a

large

measure

fjuridical

autonomy

n

respect

f

the

moral

norms

f

natural

aw.

In this

he

divergedignificantly

rom

the

contemporary

cholastic

andling f

natural

aw. Grotius

further

eveloped

is

understandingf

thecivil

community

nd ts

right

hrough

laborating

theory

of

the

unity

of

the

city,

based

originally

n the

Aristotelian otion

f

reciprocity

ut

ultimately sing

a

rangeof

neo-Stoicourceso

conceive

f

the

civil

community

s a

unitary

eality.

The

political

works of

Hugo

Grotius

are

usually

considered

today

as

belonging

to

the

tradition of

seventeenth-century

natural

law

theory,

making

Grotius

what

might

be

called

a

Naturrechtslehrerr

a

theorist of

natural

law.

It was

not

always

so,

even

during

the last

century:

in

the

interwar

period,

in

particular,

Grotius

was

considered

primarily

as

an

exponent

of

international

law.

Nevertheless,

at least

among

historians of

political

thought,

interest

has

concentrated

recently

not so

much

on

Grotius's

theory

of

the

relations

between

states,

but rather

on the

natural

foundations

of the

state

which

he

lays

out in

his

two

works,

the De

iurepraedae1

raftedaround

I604,

and the De

iure

belli

acpacis,

first

published

in

1625.

Accordingly,

debate

has

centred

around

the

question

of

what

sort of

natural

law

philosopher

Grotius

might

be.

Here

the

main

issue

seems to

lie

between

those who

consider

Grotius as

fundamentally

a

continuator

of

scholastic

Aristotelian

natural

law

theory,2

and

those

who

argue

instead

that

his

work

responds

to

developments

within

humanist moral

discourse

and,

in

the

*

A

number of

people

have

read

and

commented on

this

article in

various

drafts,

to all

of

whom

I

am

most

grateful,

and

in

particular

to

Quentin

Skinner and

Martin

van

Gelderen.

1

De

iurepraedae

s

the

title

given

the work

by

its

nineteenth-century

editor;

although

it

may

not

have been Grotius'sown, I have kept to it, partlyforfamiliarity'ssakeand partly to

emphasize

the

extent to

which

both

works

are,

indeed,

de

iure.

2

See

most

recently

B.

Tierney,

The

dea

of

natural

ights:

tudies

n

natural

ights,

atural

aw

and

church

aw,

115o-1625

(Atlanta,

GA,

I997),

ch.

6;

see

also

J.

Gordley,

The

philosophical

rigins

of

modern

ontract

octrine

Oxford,

991),

ch.

5.

3I

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3/22

ANNABEL BRETT

light

of

these,

sketches out

a

completely

new

and

anti-Aristotelian

argument

from nature.3

I

would like

to abstract

for a

moment

from the characterization of Grotius as

a natural law philosopherand try looking at him instead as a civilphilosopher:

that

is,

from the

point

of view of

what

contemporaries

would have

called

scientia

civilis

or

'civil

philosophy'.

Although

Grotius's

argument begins

indeed from

the individual

governed

by

natural

law,

his focus

is

always

on

a

humanly

created order

which

transcends

the

individual:

the civitasor

respublica the

'city')

governed

by

civil

law,

and the

international

order

governed

by

the law

of nations.

The first

goal

of Grotius's

political

inquiry

is

to

analyse

the structure

of the

city

-

more

specifically,

the

city

understood

as

a

cohesive

body

or

unity

of

some

kind.

This

understanding

is,

I

suggest,

common

to

all

the different

types

of what is usually considered'civil philosophy' in this period- republicanism

or

'civic humanism'

with

its concern

for

internal

concord,

the 'reason

of state'

idiom

with its

emphasis

on conservation

and its

preoccupation

with

the threat

of

dissolution,

olitical

Aristotelianism

with

its

emphasis

on the constitution

of

a

respublica4

and

generates

the

key question

for scientia

ivilis,

of

how to construct

such

a

unity

out of

the natural

plurality

and

diversity

of individuals.5

We can

see

the

young

Grotius

tackling

precisely

these

issues

in

what

is

probably

his

earliest

piece

of sustained

political

writing,

the

De

republica

mendanda,

n

which

he

expresses

his

concerns

over

the insufficient

unity

of the

so-called

United

Provinces.6

However,

I want

to

suggest

that this

same

focus

characterizes

equally

his more well-known

arguments

from natural

law.

Grotius

came

to differ

from

the

civil

philosophers

mentioned

above

in the

conviction

that

the

unity

or cohesion

of the

city

cannot

be

engineered by

civil

means

alone.

The

law of

the

city

is

not

sufficient

in

itself

to

command

individuals

who

are

natural

beings

before

they

are civil

beings.

The account

or

rationale

of

the

city

must

reach

out

into

nature

if

that

city

is not to

be

subject

to

dissolution

from

natural

causes.

But this must

be done

without

threatening

the

autonomy

of the

city

over

and

against

nature:

for if that

autonomy

is

so

3

Most prominently

Richard

Tuck, 'The

modern

theory

of natural

law',

in A.

Pagden,

ed.,

The

anguages

fpolitical

heory

n

early-modern

urope

Cambridge,

1987),

pp. 99-

19;

idem,

Philosophy

and

government,

572-162

(Cambridge,

I993),

ch.

5.

See

now

also,

by

the same

author,

The

rights

f

war

and

peace:

political

hought

nd

the

nternational

rder

rom

Grotiuso Kant

(Oxford,

I999),

which

restores

the

international

perspective.

In a somewhat

different

vein

from

Tuck's

work,

but

still

emphasizing

discontinuity,

see

K.

Haakonssen,

'Hugo

Grotius

and the

history

of

political

thought',

Political

Theory,

3 (1985),

pp.

239-65;

idem,

.Natural

aw and

moralphilosophy

Cambridge,

1996),

ch.

i.

4

I am

not

suggesting

that

these

different

political

languages

were

mutually

exclusive:

Aristotle's

Politics,

or

example,

could

be cited

both

in

a

republican

context

and in connection

with

'reason

of

state';

Althusius's

Politica

methodice

igesta

ontains

a

long

section on

the

desiderata

of

government

straight

out of

Lipsius's

Politicorum

ibr

VI.

5

About the only branch of contemporary political theory

in which it is not

the

dominant

concern

is scholastic

Aristotelianism

-

a

clear

indicator

(to anticipate)

that the work

of

Grotius

belongs

in a

different

universe

from

these

writers.

6

See A.

Eyffinger

et

al., eds.,

De

republica

mendanda,

Grotiana,

n.s.,

5

(I984),

especially

paragraphs

43-64.

32



4/22

CIVIL PHILOSOPHY OF HUGO GROTIUS

threatened

-

if,

for

example,

the individual

may

appeal

from the

city

to

a

nature understood

as normative-then

there

again

lies the

danger

of

dissolution.

This conviction is distinctfrom,even if relatedto, the positionwhich all post-

Machiavellian

civil

philosophers

hold,

that the

city

must accommodate

ature.

The reason of state

literature and the

political

Aristotelian literature

implicitly

accept

that nature can never be

entirely

transcended

in the

city

and that

the

task

of civil science must instead

be to show

how nature can be harnessed

to

its

ends.7

Both

literatures

contain

long

discussions,

for

example,

on

the

turbulent

and

changeable

nature of the

people

and how the

prince

or

magistrate

must

act

(or,

how

the

law must be

framed)

in

order to

keep

it

in

check and

thereby

minimize its threat

to

the

city.8

This sort of civil

philosophy

is

thus one

of

'nature-management'. By contrast, the natural law enterpriseof Grotiusaims

not at

managing

a

nature that still exists

within the

city

but at

constructing

the

city

from a

nature which is then left

behind. The

question,

therefore,

s how

to

establish some sort of

disjunction

between

nature and the

city

but at the

same

time

to establish some sort of

continuity:

how

to

combine civic

integrity

with

a

foundation

in

nature.

Distinctive to

Grotius the 'natural

lawyer'

is the

conviction that this can

only

be

done

in

terms of

right.

I

Showing how the city might be at once founded

upon

nature (and therefore

firmly

founded)

and

legally

autonomous

(politically

self-sufficient)

nvolves,

in

the

first

place,

an

examination of

nature and the

principles

of natural

action.

Here is

where Grotius

is not

unreasonably

seen to

be

elaborating

a

theory

of

natural

law. And

yet

it is

important

to see

that the

natural

law of

the

Thomist

tradition,

continued in

the

sixteenth

century by

the

Spanish

'School of

Salamanca',9

will

not

meet the

requirement

of

the

city

as

laid out

above.

Nature

and natural

law,

seen as a

set of

substantive rules

of

action which

form

an

unchanging

baseline

of

moral

rectitude,

generate

precisely

the

threat

to

the

legal autonomy or integrity of the city that civil philosophy strove to avoid.

Seen in

this

way

it

constitutes

a

non-civic

and

pre-civic

standard

against

which

the

city

might

be

judged

and

to which

individuals

might

appeal.

It

is this

kind

of

natural

law

theory

which

lies

at the

base of

sixteenth-century

resistance

theory

and

which

was

used

in

the

justification

of

civil

war.

For

civil

7

It is

primarily

human

nature

that is in

question

here,

of

course,

but

civil

philosophers

also

took

very

seriously

the

nature of

other

animate

and

inanimate

objects,

cf. the

preoccupation

with

terrain,

the

siting

of

the

city,

rivers,

etc.,

that we

find in

this

literature.

8

Classically

and

most

influentially

in

Justus

Lipsius,

Politics,

Bk

Iv,

Ch.

5.

9

This

remark

presumes

an

affirmative

answer,

which I

have

no

space

to

defend

here,

to the

vexed question of whether the Spanish theologiansfundamentally continued Aquinas's work or

whether

their

enterprise

was a

very

different one

derived from

late-nominalist

theology.

I

have

argued

elsewhere

that

their

works

represent

the

appropriation

of

some

of

the

concepts

of

the

latter

to

the

legal

framework

aid

out

by

the

former.

See

my

Liberty,

ight

and

nature:

ndividual

ights

n

later

scholastic

hought

Cambridge,

1997).

33



5/22

philosophers,

however,

civil war

represented

the

disintegration

of the

city.

If

they

were

going

to use natural law

theory

at all

they

needed

another

way

of

handling

it. It

is in

these terms that

the

question

of

Grotius's

relationship

to

contemporary scholastic Aristotelianism should be viewed.

Contemporary

scholastic

Aristotelianism married

Aristotle's account of the

formation and nature

of

the

city

with

a

vocabulary

of

natural

law

and natural

rights

derived

ultimately

from

Aquinas

through

Jacques

Almain. It

provided

for

a

dynamic through

from the state of

nature

(understood Thomistically

as

the natural

law

state)

to the

city (understood

as the civil law

state)

in

terms of

the

individual

human

being's

natural

right(s).

The most

highly developed

product

of this discourse

is

probably

Francisco Suarez's De

legibus

ac

Deo

legislatore

(1612),

which Grotius had

undoubtedly

read

by

the time of

writing

De iure belliacpacis and to which some of his formulations concerning the nature

of

right

are

undoubtedly

indebted.

However,

Aristotelianism

in

the sixteenth

and seventeenth

centuries was

not limited

to its scholastic variant.

Humanist

commentaries

on the

Politics

and,

especially,

the

Nicomachean

thics,

proliferated.

The

early

humanist

approach

to the

Ethics tended

to be

heavily

Ciceronian,

reinterpreting

Aristotelian

virtues

in

terms

of Ciceronian

ones and

turning

Aristotle's

book

largely

into

a sort of Greek

De

officiis.

Come the

early

seventeenth

century,

however,

some humanist

and

legal

humanist

scholars,

especially

within

Protestant

circles,

were

clearly

distinguishing

Aristotle's

ethical

project

from that

of

Cicero,

at

least

in the crucial

aspect

of

justice

and

right,

even

though

the distinctive

Ciceronian

terminology

of the honestum

nd

the

utile

continued

to be

used

(for

reasons

that

will become

clear).

The

specifically

political

character

of

Aristotle's

treatment

of

justice

and

right

in

Book

v of the

Nicomachean

ethics was

being explored,

starting

with

Aristotle's

assertion,

paradoxical

in

traditional

natural

law

discourse,

that

the dikaion

phusikon,

natural

right,

is a subdivision

of dikaion

politikon, political

right,

rather

than

something

which

somehow

precedes

political

right

and determines

its

legitimacy.

What

I

shall

try

to show

in this

section

is the

relationship

between

this

sort

of natural

law

theory

and

the Grotian

texts.

I do not have

space

here to do more than sketch this alternative way of

handling

natural

law.

The

key

text

appears

to

be the

revolutionary

commentary

on the

first titles

of the

Digest by

the French humanist

jurist

FranFois

Connan.'?

Here

Connan

rejected

Ulpian's

triadic

structure

of

right

10

The

importance

of

Connan's

text

for

Grotius

in

general

has

been underlined

by

Peter

Haggenmacher

in his

monumental

study

on

Grotius

and the

just

war: P.

Haggenmacher,

Grotius

et

la

guerrejuste

Paris,

I983);

see also

idem,

'Genese

et

signification

du

concept

de

ius

gentium

chez

Grotius',

Grotiana, .s.,

2

(1981),

pp.

44-191.

However,

Haggenmacher

does

not focus

on

Connan's

text

as a

commentary

on

Ethics,

Book

v,

which

I think

can bear

further

investigation

in

connection

with

Grotius.

The

identification

of

Connan's

role in the formation

of Grotius's

thought

goes back at least as far as Carl von Kaltenborn,

Die

Vorlaufer

esH. Grotius

uf

dem

Gebiete

es

us

naturae

t

gentium,

owie

der

Politik

m

Reformationszeitalter

Leipzig,

1848),

which,

as its title

implies,

looks

at Grotius

in

the

specific

context

of

Protestant

political

thought.

It

is,

however,

so

schematic

and

so

heavily

indebted

to

an

idealist

philosophy

of

history

as

to

make it of little

help

in the

present

inquiry.

34

ANNABEL BRETT



6/22

CIVIL PHILOSOPHY

OF HUGO GROTIUS

(natural,

of

peoples,

civil)

in favour of

a

two-part

structure

which Connan

found advanced

by

the Roman

jurist

Paulus.

' Right ,

he

[i.e. Paulus] says,

has

many

senses.

In

one

way,

certainly,

that which is

always

equitable

and

good is called right, as in natural right. In anotherway, that which is useful to

all

or most within

any city

is called

right,

as in civil

right.

'

'In

which

it is

most

of all to

be

noted',

Connan

continued,

'that he

placed

the

rationale

of the

equitable

and

the

good

in natural

right,

and

utility

in civil

right.

And

this

we

shall hold

on

to with all our

might

because

it

contains the essenceof

everything

which we are

going

to

say. '

Connan

explicitly juxtaposed

Paulus'

comments

with

Aristotle's

account

ofjustice

fromthe

Jicomachean

thics,

Book

v,

suggesting

that we should

use these texts to illuminate each other.12

Here

Aristotle

stipulated

that

right

properly

speaking

is that

which obtains between

people

who are not part of each other in any way (as for example slaves and children

are

part

of the

master,

and

even the

wife

in a

sense

part

of

the

husband).l3

Similarly, justice,

the virtue

by

which

we

'do the

right thing',

is

distinct

from

all the other

virtues

in

being

'with

respect

to another'

(ad

alterumn

the

Latin)

rather

than

concerning

the

self.l4

Aristotle then

subdivided

this

right

into

'natural'

and

'legal':

'natural'

which

does not

depend

on

circumstance,

'legal'

which

entirely depends

upon

it.15

The

ultimate

founding

principle

of

all

right

is therefore

what

I

shall call

'alterity',

and

this

is

equally

the

primary

principle

of

the

political

as

opposed

to

the domestic.

Politics is

about

living

with

others,

and

the

'right thing'

in

politics, politikon ikaion,

s

to

respect

the

being

of

the other

with whom one

lives. All

right,

iustum,

must

conform to

this basic

principle.

But within

this

limitation,

natural

right

and

legal

right

are

discontinuous.

Connan

put

Aristotle's text

together

with

Paulus's

to

create

a

juridical

schema

based

on

a

disjunction

between

the

honestumnd

the utile.

Natural

right,

or

what

medieval

and

Renaissance

jurists

had called the

'primary right

of

nations',

had for

its

principle

what

is

equitable

and

good

in

itself

(bonum,

aequum,

onestum).

s

'the

law

ofjust

and

unjust

things',

it is

immutable

and is

observed

by

human

beings

out of

their

natural

ustice.

But

any

right

established

by human

beings beyond

thisnatural

right

had forits

principle utility

(utilitas);

this

included

both

what

the

medieval

jurists

had

called

the

'secondary

right

of

nations',

and civil

right

insofar as

cities

were

themselves a

function

of

utility.16

l

Franciscus

Connanus,

Commentariorum

uriscivilis

ibri X

(Lyons,

1566),

Bk

I,

Ch.

6,

n.

2.

12

Ibid.:'

And so

that

this

might

be

understood,

we

shall take

from

Aristotle

certain

things

which

make for

the

explanation

of it.

And

so

it

will

happen

that,

out of

Aristotle,

we shall

shed

some

light

both

on

Aristotle

himself

and on

the

jurisconsults.'

13

Aristotle,

JVicomachean

thics,

Bk

v,

I

I34a24-6.

14

Ibid.,

I

I3oa2-3.

15

Ibid.,

ii34b8ff.

16

The

key

text

here

is

Hermogenianus,

1.

ex

hoc

ure

=

D.

I.

.5.

Connan

rejected

the

triadic

Roman law scheme of ius naturale-ius entium-ius ivileand equally rejected the quadripartite

scheme

(in

which

the

ius

gentium

s

split

into

primarium

nd

secundarium)

laborated

by

the

medieval

jurists

in

order to

accommodate

the

contradictions

of

the

Corpusjuris

ivilis.

However,

his

analysis

makes it

clear

that he has

not

left

these

latter

categories

entirely

behind,

arguing

as he

does for a

double

principle

in

natural

ius:

'One

indeed

which is

the

rule

ofjust

and

unjust

things

...

another

35



7/22

ANNABEL

BRETT

It

is

established

by

human

beings

out

of,

and as a

limitation

upon,

their natural

faculty

of

freedom.17

Hence the

right

which

is

established

by

men

operated,

for

Connan,

on an

entirely

different

proximate

rinciple

from

the

right

which is

natural to them.18For Connan, equity and utility were located in distinct

spheres,

the

sphere

of

nature and

the

sphere

of

the human

establishment

or the

city.

Connan's

commentary

was

cited over

and over

again,

both

by

Catholic

scholastics

dealing,

after

Vitoria,

with the nature

of

the ius

gentium,19

nd

by

Protestant

humanists and

legal

humanists

commenting upon

both the

Aristotelian

texts and the civil law. In

this

context it

appears

to

have been

assimilated

to

the

legalistic

and civil

understanding

of

Aristotle's Politics

and,

especially,

Ethics,

which

characterized the

Protestant

universities. As Horst

Dreitzel20 and, in another connection, Sachiko Kusukawa21 have most

convincingly

shown,

the

Protestant distinction

between

philosophy,

or

law,

and

gospel (elaborated

especially

by

the

founding figure

of

Protestant

ethics,

Philip

Melanchthon)

operated

to

redefine the

position

of

ethics,

as indeed

all

the

natural

sciences,

within

the

theological

framework

and

tie it

very firmly

to

the maintenance

of

the order of

this

world,

which is

a

civic

order.

For

Melanchthon and

his

followers,

the

natural

morality

of

this life was

a

morality

of civil

justice

and civil

obedience,

and

the favoured text

in

this connection was

precisely

EthicsBook

v

with its civil account

of

the

just

and the

unjust.22

By

at least

some

commentators

on

Aristotle within this

Protestant

humanist

tradition,

Connan's

reading

was used to establish

that

the

law of the

city

which

regulates

those utilities which are

necessary

for

living':

Connanus,

Commentariorumuris

civilis,

Bk

i,

Ch.

6,

n.

4.

17

Connanus,

Commentariorum

uris

civilis,

Bk

I,

Ch.

6,

n.

7:

'For nature made us

just,

and

she

made us free:

from

which

pair,

justice

I

mean

and

freedom,

all the other

things

which

belong

to

this ius arise

...

[8]

... The other

[sc.

principle]

was

freedom,

which we said

came from the same

source,

but

by

another route.

For

liberty

has no

ability

to

compel,

since

it does not contain

any

principle

of the

just

and the

unjust,

but

merely

a

licence of

doing

what

you

like,

so

long

as

you

commit no offence

... And

to limit

something

of that natural

faculty [facilitas]

and

liberty

[liberalitas]

was not

only

not

wrong,

but on the

contrary

necessary.'

18 It is

important

that the ultimate

rinciple-

'alterity'

-

of both

rights

is the same: Connan

assimilated this to

the 'world

city'

of Stoic

theory,

the

community

of

human

beings respecting

each

other's

humanity.

Human

beings

share

a

common

law

in

right

reason.

'Now those

who

have

a law

(lex)

in

common,

also

have

a

right

(ius)

in

common;

but those who share

the same

right,

are held

to

be

of the same

city.

Whence

it

happens

that

this whole world

is

thought

to

be

one

city.'

It is this

city

which is the

political

realm

in which the

dikaion

olitikon,

he

iustum

oliticum,

btains,

rather

than

any

such

city

as the

Latins would

call

a

city, e.g.

Rome or France.

Such

cities

are civil rather

than

political

n the Greek sense.

Connanus,

Commentariorum

uris

civilis,

Bk

i,

Ch.

6,

n.

2.

19

Gabriel

Vasquez

used

Connan's

authority

to

argue

that the

ius

gentium,

s

opposed

to

the

us

naturale,

onsisted

purely

in

faculty

or

liberty

rather

than in

precepts,

incurring

thereby

the

disapprovalof FranciscoSuarezin Book

In,

q. i8 of Delegibus'Does the rightof nationscommand

or

prohibit

anything,

or does it

merely

allow

or

permit?').

20

Horst

Dreitzel,

Protestantischer

ristotelismus

ndabsoluter taat

(Wiesbaden,

I970).

21

Sachiko

Kusukawa,

The

transformationf

natural

philosophy:

he case

of

Philip

Melanchthon

(Cambridge,

1995)

22

Dreitzel,

Protestantischer

ristotelismus,

p.

91-I00.

36



8/22

CIVIL

PHILOSOPHY

OF

HUGO

GROTIUS

appeals

to

utility

and to

nothing

else.23

It was

remarked

that

Aristotle

himself

had

said so

explicitly

a little further

on

in the same

Book

v of

the

Nicomachean

ethics.24

ristotle's

Politics

ould also

be cited

in

this

connection,

for

in

explaining

why humans are morepolitical than animals (becausethey have speech (logos)

and

not

merely

voice

(phone))

Aristotle

had

said that

speech

is for

demonstrating

'the

useful and the

harmful

and so

also

(hoste

ai)

thejust

and

the

unjust'.25

And

as

humanists,

finally,

they

were

fond of

quoting

Horace's

assertion n

the

Satires

that

'utility

is the

mother

of

the

equitable

and

the

good'.26

The

general

conclusion

was that

the

rationale

of the

just

and the

unjust,

where the

city

is

concerned,

lies

in

the useful

and its

contrary,

rather than in

that

which

is

of

itself

good

and

equitable.

It

is this

disjunction

(in

substance,

rather than

in

abstract formal

terms)

between

the

natural

and the

civil

which

set

this

kind

of

natural law theory apart fromany Thomist Aristotelian (scholastic)versionof

natural

law

theory

which

precisely

demands

continuity

between

the

natural

and the

civil if

the civil

is to

have

any

legitimacy

at

all.

II

I

now

want

to

move on

to

consider the

texts of

Grotius in

the

light

of

this

humanist

and

legal-humanist

discussion

of

Aristotle

and

political

right.

Grotius

underwent a

humanist

education

at

the

University

of

Leiden,

where

his

23

A

key

figure

appears

to be Obertus

Giphanius

or Hubert van

Giffen,

born

in

Holland

and

educated in

law

and

philosophy

at

Lbwen,

Paris,

and

Bourges

before

being

made a

doctor of

law

at

Orleans,

professor

of

philosophy

at

Strassburg,

and

professor

of

law

at

Altdorfand

subsequently

Ingolstadt.

Van

Giffen,

known

by

contemporaries

as

'the

German

Cujas',

was

an

outstanding

figure

in

humanist

philology,

philosophy,

and

jurisprudence,

producing

commentaries

upon

both

the

Politics

and

the

Ethics

as

well as on

the

civil

law.

He

was

apparently

instrumental in

getting

Donellus

invited

to

Altdorf,

though

he

there fell

out

with

him.

24

At

I

I34b30-35.

Cf.

for

example

Obertus

Giphanius

(Hubert

van

Giffen),

Commentariin

decem

libros

ethicorum

ristotelis d

Nicomachum

Frankfurt,

I6o8), 404

s.v.

rTa

6E

KarTa

acvvOrKjV: 'He

explains

civil

rights

(iura)

with

two

words,

agreement

or

pact,

utility

...

For

as

natural

rights

are

weighed

and

constituted

by

uprightness

(honestate),

o

civil

rights

by

the

utility

and

common

usage

of

the

citizens.'

Van

Giffen

explicitly engageswith Connan'sreading, though he is not entirelyin

agreement

on

the

subject

of

pacts.

25

Aristotle,

Politics,

I253aI4-

5.

Cf.

Obertus

Giphanius

(Hubert

van

Giffen),

Commentariin

politicorum

pus

Aristotelis

(Frankfurt, 60o8),pp.

3

I-3:

'For if

beasts

had

a

notion

of

utility,

it

would

follow

that

they

also

knew

the

difference

between

just

and

unjust

things,

and

therefore

that

they

had a

share

of

reason.

Why

so?

Because

right

and

wrong

exist

with

regard

to

profit

and

loss,

as

explained

above

on

Ethics

v.

Again,

it

is clear

to

one

who

pays

attention,

that

useful

things

cannot

be

distinguished

from

those

that

are

not

useful

without a

degree

of

ratiocination

and

disputation

or

consideration

...

the

use of

speech

lies in

things

which

pertain

to

the

city,

viz.

things

which

are

useful

and

not

useful,

just

and

unjust

-

in

the

communication

of

which

the

city

holds

together.'

26

Horace,

Satires,

,

3;

cf.

van

Giffen,

as

above,

n.

24:

'And

this

too

is to

be

noted,

that

what

joins

the

city

together

is

utility,

i.e.,

as

above,

need,

or

the

mutual

communication

of

things

that

are

useful. Whence Horace too elegantly calls utility the mother of the just and the unjust'; cf. also

Ioannes

Magirus

(Johann

Koch),

Corona

irtutum

moralium

Frankfurt,

I6oi),

p.

514:

'For

legal

rights,

which

result from

and

depend

on

the will

and

establishment of

men,

and

are for

the

most

part

measured

by

the

utility

of

those to

whom

they

are

given,

very

often

change

...

And so

it

comes

about

as

Horace

says,

that

utility

is

the

mother of

the

just

and

the

equal.'

37



9/22

ANNABEL BRETT

teachers included the

outstanding figure

ofJosephJustus

Scaliger,

and the

less

outstanding

Everhard

Bronchorst,

professor

of civil law

-

whose

commentaries,

especially

on the

Regulae

uris,

were none the less

of

some

renown.27

Grotius

was

awarded a doctorate in law at Orleans, a centre of humanistjurisprudence,in

1598.

We know from a

mention

in

the

De

iurepraedae

hat

Grotius

had

early

on

encountered the

work of Connan

with its

synthesis

of

Aristotle,

Roman

law,

and

Ciceronian

Stoicism,

and

it

is

moreover well known

that the

De

iure

raedae

as

a whole

(especially

the twelfth

chapter published

as

Mare

liberumn

I611)

owed

an enormous debt

to

the

work

of the

Spanish

humanist

jurist

Fernando

Vaizquez

de Menchaca.28 We

may

therefore

posit

a clear and

steady

engagement

with

humanistjurisprudence

on

Grotius's

part

from

very

early

on.

None the

less,

an

engagement

with humanist

commentary

on

the first title

of

the Digest has not figured prominently in modern scholarshipon Grotius,still

less

engagement

with humanist

commentary

on Book v of Aristotle's

Ethics.

The

Prolegomena

to the

De

iurebelli

acpacis

has

seemed

to

many,

and with some

reason,

to

be

purely

Stoic,

positing

as it does

an

innate

right

reason,

equity,

and

sociability

in mankind

quite

apart

from

any

consideration

of

utility.

The notes

to

the

Prolegomena

printed

in

the

I632

and

I646

editions

are

certainly

stuffed

full of

Stoic references.

Hence

it

might

well

appear

that

any

Aristotelian

perspective

has been

lost

in the

Stoic

one.

By

contrast,

the manner

in which

Grotius

in the

first

chapter

of

the

first book defines

right

is

undoubtedly

Aristotelian,

but

it

is

primarily

scholastic-Aristotelian

rather

than Aristotelian

in the sense

we

have been

looking

at: it

is

probably,

in

fact,

straight

from

Suarez.29

However,

the Aristotelian

subdivisions

which Grotius

appends

to this

definition

of

right

are

not

categories

deployed

by

scholastic

theologians,

and

certainly

not

by

Suarez.

This

suggests

that Grotius

was

working directly

with

the

Aristotelian

text

and/or

commentary upon

it,

indicating

that

the

Aristotelian

treatment

peri

tou

dikaiou

n Book v

of the

N\icomachean

thics

continues

to

structure

Grotius's

Latin

treatment

de iure.

Moreover,

we

have

already

seen Connan

marry

the Stoic with

the

Aristotelian

perspective,

indicating

that there need be no

opposition

- at least within a legal humanist

mentality

-

between

these two

traditions.

Grotius's

debt

to

the discussion

in

Ethics

Book

v

is,

however,

far

clearer

f

we

look at the

Prolegomena

to the

De

iure

praedae,

n

which

marginal

references

o

Aristotle

are

frequent.

I

want

therefore

to

begin

by

considering

this

earlier

work.

27

For

Bronchorst

and

legal

humanism

at

Leiden,

see

R.

Feenstra

and

C.

J.

D.

Waal,

Seventeenth-

century

eyden

aw

professors

nd

their

nfluence

n the

development

f

the civil law:

a

study

of

Bronchorst,

Vinnius

nd

Voet

Amsterdam

and

Oxford,

I975).

28

Vazquez's

work

bears

some

striking

similarities

to that of

Connan,

especially

in his

insistence

on the naturallibertyof mankindand on the city as an artificialhuman constructwhich limits

that

natural

human

liberty

for the

sake

of the

utility

of

its

subjects.

See

my

Liberty,

ight

and

nature,

h.

5.

29

Cf. Francisco

Suirez,

De

legibus

c Deo

legislatore,

d.

L.

Perefia

and V.

Abril,

vol.

i

(Madrid,

1973),

Bk

i,

Ch.

2,

n.

5.

38



10/22

CIVIL

PHILOSOPHY

OF HUGO GROTIUS

The

De iure

praedae

was drafted

by

Grotius in defence of

predatory

Dutch

commerce

against

the

Portuguese

in

the East

Indies,

and it

belongs

to a

period

in

which

he wrote several other

works in

praise

and defence

of the

Dutch

republicand its history. In thiswork, however, Grotius set his argumentfor the

specific

case

in

question

within

an

abstractjuridical

framework,

beginning

with

God and

ending

with

the

respublica,

which he laid

out in

the

Prolegomena

(Chapter 2).

This

juridical

framework

operates primarily

within the

coupling

freedom-utility

which for Connan had characterized

the

secondary

as

opposed

to the

primary right

of

nations

which

is

natural

right

or

equity.

Whereas

Connan had said that 'nature made us

just,

and she made us

free',30

Grotius

says only

that

'God

created man

autexousion,

ree,

and

under his own

right (sui

iuris),

n

such a

way

that the

actions

of each man

and the use

of

his own

things

lies underhis own whim and not that of another.

31

This free man is in pursuit

of his own

utility

just

like

any

other created animal. The De iure

praedae

osits

that the fundamental

motivating principle

of the entire animate

world is

utility,

the

pursuit

of

one's

own

good.

Right,

for Grotius

here,

is

the

product

of this

pursuit

of

utility. 'Utility

is the

mother of the

just

and

the

equal',

as Grotius

says,

quoting

Horace

in

the

Satires

which

as

I

have

suggested

is

something

of a

staple

of

the Protestant

Aristotelian

literature.32

Grotius's use of the

citation

is, however,

different,

since

for Grotius

in

this work

there is no

'just'

or

right

of which

utility

is not the

mother. Even

so,

it

is not in

fact the

case for Grotius that

utility by

itself

generates right.

Because,

as Grotius

makes clear

at the

outset,

right

has

a

father as well as a

mother,

and that

father is God:

'What God

has

signified

that he

wills,

that is

right (ius).'33

The basic

juridical

principle

of

the De iure

praedae

s that

the

determinant of

right

is

a

will

signified

to

others. The

original

and

primary

determinant,

within

which

all

subsequent

determinations must

fall,

is

the will

of

God,

as

signified

to

mankind

in

the

very

workings

of

his creation.

This

original

will has

sanctioned

or

juridicized

the

pursuit

of

utility,

that

is,

turned

a

fact

-

that all

creatures

pursue

the

good

for

them

-

into a

right.

The

right

of

going

for

one's own

good

-

the

pursuit

of

utility

-

cannot

and

does not

split

off animal fromhuman nature. Those natures

begin

to divide at

the

point

where the

pursuit

of

one's

own

utility

demands the

friendliness of

30

Connanus,

Commentariorumuris

civilis,

Bk

I,

Ch.

6,

n.

7;

cf.

above,

n.

17.

31

Hugo

Grotius,

De iure

praedae

ommentarius,

ol.

II.

Collotype reproduction

of the

original

MS

(Oxford,

I950),

fo.

I0.

All

translations from

this

volume are

my

own.

32

Ibid.

fo.

5'a:

'Qua

ratione

culpandum

non

est

quod

secutos

Academicos

Horatius

utilitatem

Iusti

et

Aequi

prope

matrem

dixit.'

33

Ibid.,

fo.

5.

Ius

throughout

the

Prolegomena

is

normally

translated as

'law'.

However,

I

cannot

see

that this is

warranted: ius in

the

sixteenth

and

seventeenth

centuries

could mean

either

'law' in

our

sense,

or

'right'

as in

either

'the

right

thing'

or

a

subjective

faculty

('right'

in

our

sense). It does not seem to me to be clear that, of thesepossibilities,Grotiusunambiguouslyintends

the

sense

of'law'.

Indeed,

I

think

the

contrary

is

indicated

in

such

passages

as: 'Ex

hac

igitur

coniugatione

emergunt

leges

iuris

naturalis

duae'

(ibid.,

fo.

5a'),

in

which laws of

behaviour are

distinguished

from

the

juridical

principle

or

'right' (here

meaning,

I

think,

the

objective

sense of

'right'

as

'the

right'

or

'the

right

thing').

39



11/22

ANNABEL

BRETT

others,

that

is,

where love of self

has as its

complement

love of the other.

Grotius

holds that

this 'double love of self

and

other,

viz. the love

of

cupidity

and

the

love

of

friendship'

is

partly

evident

in all

creation,

but

shines out most

clearly

in man who has the capacity to reason. The implicit contrast is between

animals

which

simply

have

affections or

passions

and human

beings

who

also

have

a

reason which is

called

'commanding',

dominant,

imperatrix.34

upplying

what

Grotius leaves

tacit,

we

may

perhaps say

that

reason here is the reason of

the

political

animal

in

Book

I

of

Aristotle's

Politics,

the

reason which is

'foresightful'

and therefore

fitted

to command. The rational animal loves its

fellows because

it can

see

beyond

the

immediate

good

of

sense,

what

appears

immediately

useful to

it.

The universal

will of all mankind as such rational

animals

is that 'the conveniences of others should be

respected',

and this

will

is the second determinant of right after that of God. 'And it is from this', says

Grotius,

'that that

justice

which is

properly

o-called

begins,

which Aristotle and

othershave asserted

is with

regard

to the other's

good.

'3

Clearly,

therefore,

the Aristotelian

understanding

of

justice

and

right

is not

lost

sight

of

in

the account

given

by

the

De

iurepraedae.

ustice

properly speaking

is Aristotelian

justice, politikon

dikaion,

and comes

into

play

insofar

as we need

the

society

of others.

Grotius

agrees

with Connan

that the

society

of

others,

alterity,

and

the

justice

it

imports,

is not

a

condition

limited

to civil

society

or

the

city;

but

he will not

accept

that it

precedes

the world of

the

utile,

of

utility,

nor

that there is

any

other kind of

right

which

governs

a

prior

world of the

honestum.6

Outside

of

individuals

pursuing

their own

utility,

there is

simply

no

will for

anything

at

all,

and

certainly

no

common will

of all mankind:

and

thus

nothing

to

say

what

to do and what

not

to

do,

nothing

to

generate

right.

Utility

causes creatures

to will

one

thing

rather

than another.

That will'

can

be

changed,

but'-in

accordance

with the

second

rule of

right-'not

in

defraud

of

others,

so

that we should

not

profit

by

the

credulity

of

anyone,

which

is useful

and

happy

for

us,

but

truly

harmful

for

him'.37

Hence

the third

rule

of

right

is that

a

will,

once

signified

to

another,

cannot

be

changed

and

creates

right

against

him.

'What each

has

signified

that

he

wills,

that is

right

with

respect

to him.' 'And

this',

Grotius

says,

'is the

origin

of

pacts.'

Pact is thus

where the

just

and

the

utile

meet: what

ensures

that there

is no

contradiction

34

Ibid.,

fol. 6'.

35

Ibid.:

'Hinc

illajustitia

proprie

dicta

incipit,

quam

Aristoteles

aliique

circa

bonum

alienum

versari tradiderunt.'

The

emphasis

is

mine.

36

It is

not that Grotius

excludes

any

notion of

the honestum:

ndeed,

at chs.

14

and

15

of this

work

he is

explicitly

concerned

to show

that both

the

honestum

nd

the utile

coincide

in the

iustum.

However,

this

happy

coincidence

depends

on

the

argument

that the

world

of

right

simply

is

the

world

of the 'honest'

or

morally good,

and

thus

that this

latter is

not

something prior

to

utility;

indeed,

this world

of

right,

as

we have

seen,

is

ultimately

afunction

of the

utile.The radical

nature

of this argumentis broughtout by a comparison

with

another

early

work

of

Grotius,

the

Parallelon

rerumpublicarum,

n which

he takes

the more

standardly

Ciceronian

position

that

honestas

s

accompanied

by

utilitas:

J.

Meerman, ed.,

Parallelon

erumpublicarum

iber

III,

de

moribus

ngenioque

populorum

thenensium,

omanorum,

atavorum

Haarlem,

I80o),

p.

73.

37

Grotius,

De iure

praedae

ommentarius,

o.

o.

4o0



12/22

CIVIL

PHILOSOPHY

OF

HUGO

GROTIUS

between

them:

what

mediates

between

the

individual's

pursuit

of his own

utility

and

the demands

of

human

society.

Accordingly,

it is

pact

which will

be

Grotius's

answer

to

the reason

of state

theorists

who

argue

that

the

profitable

mustbe pursuedattheexpensefthe just, or that thejust reducesothe profitable;

and

it is

pact

upon

which

he will

found

his

city,

intended

thus

to be

more secure

than

the

uneasy compromise

between

nature

and

civility

which

is

all that civil

science

had so

far achieved.

This

possibility

of

pre-civic

pacts

is

the

key point

at which

Grotius's

analysis

of

right departs

from

Aristotle

and the

humanist

Aristotelian

tradition.

Aristotle's

political

man is

governed

by political

right,

which

includes both

natural

right

and

legal

right:

legal right

is,

as we

have

seen,

determined

by

'utility

and the

common

agreement'

of

the citizens.38

But the

important

point

is that these citizens who agree together are alreadyitizens. Aristotleprovides

an account

of

how

individuals

come

o be citizens

in PoliticsBook

I,

but it

is not

an account

framed

in

terms

of

right.

In

Aristotle,

and

in

the

humanist

Aristotelian

tradition after

him,

the

account of

right

and the account

of the

genesis

of

the

city

are two

entirely

separate

accounts.39It is

in

insisting

on

a

juridical

ynamic,

located

in

the

individual,

to account for

the formation of the

city

understood

as

a

construct

of

right,

that Grotius's

enterprise

relates rather

to the scholastic

Aristotelian

project.

The

profound

difference between

them

lies,

however,

in

the nature

of that

by

which

the individual

pursues

his aim. For

the scholastic

Aristotelians,

it is a

right,

mbued with

objective

moral content

deriving

from its accord with

natural law. For

Grotius, however,

it

is

a

pure

subjective

liberty

or

free faculty

albeit

operating

within

the

confines of the

justum

and

generative

of

justum

or

jus

in

itself.4

Pact,

the moment of this

generation, represents

not

only

a

rapprochement

between the

justum

and the

utile,

t

represents specifically

the

possibility

of a

rapprochement

between the

right

of the

city

and the

utility

of the

individual.

As has often been

noted,

the

emphasis

on

utility

which characterizes the

Prolegomena

to the

De iure

praedae

ppears

muted

by

the time

we

reach

the

Prolegomena

to the De iurebelli

ac

pacis

of

I625.

This

begins

with an

explicit

denial of the premiseof the earlierwork, that sociabilityand the respectfor the

other's

good

is

only

a

consequence

of

self-love,

and that human

nature does not

depart

from animal nature in

that

primary

respect.

Here

in

the later

work,

38

Cf.

above,

n.

24.

39 This is

part,

I

think,

of

what

ultimately

led the Protestant

Aristotelian

Arnisaeus to

deny

that

the

civitas,

he

city,

and the

respublica

re the same

thing:

see

Henning

Arnisaeus,

De

republica

eu

relectionis

oliticae

ibri

II

(Frankfurt,

I615),

Bk

I,

Ch.

5,

Section iii.

40

I

have

argued

for

this distinction in

my

Liberty, ight

and

nature,

hs.

4-6,

in

which

I

distinguish

between the

scholastic Aristotelian

jus

and the

libera

acultas

of

the

legal

humanist

tradition,

as

deployed

by

Fernando

Vazquez

de

Menchaca,

Grotius's

debt

to

whom is well

known. Suarez

is a

more complicated case, defining ius as he does as a dominiumnd a liberty; neverthelessI do not

think that this

right

is the

free

faculty

of the

legal

tradition,

as

I

have

suggested

elsewhere:

'Individual and

community

in

the second

scholastic :

subjective

rights

in

Domingo

de

Soto and

Francisco

Suarez',

in

C. Blackwell

and

S.

Kusukawa, eds.,

Philosophy

n the

sixteenth nd

seventeenth

centuriev:onv,

'ationswith

Aristotle

Aldershot,

1999),

pp.

146-68.

4I



13/22

ANNABEL

BRETT

Grotius

distinguishes

humans

from

animals at

the

very

base of

the

juridical

structure

precisely by

the

capacity

for

recognizing alterity.

Unlike

animals

and

children,

adult human

beings

have a natural

and

primary

regard

for the

other's

good.41The 'desire for society, that is community, not of just any sort, but

peaceful

and

according

to the

measure of

his intellect

ordered,

with

those that

are of

his own

kind',42

this

desire is the

foundation

of human

nature. It

is not

true that all

human

beings,

at

least,

go

after their

own

utility

before that of

others: unlike

animals

(and

even

here,

some animals

'temper'

the

pursuit

of

their

own

utility)

man

has an

internal

principle

of

intelligence,

indicated

by

his

capacity

to

act

'similarly

with

regard

to

similars',43

by

which

he fosters

the

other's

good

as

well as his

own. 'And this

care

for

human

society',

Grotius

goes

on,

'which is

congruent

to

the

human

intellect ... is the

fount of that

right

which is properlycalled by such a name.

44

Here again, therefore,we meet the

Aristotelian

category

of

justice

properly speaking,

which

has

regard

to the

other's

good:

political right.

Unlike

in

the De iure

praedae,

however,

political

right

accompanies

human nature

per

se,

and not

in

pursuit

of

utility.

The

reason or intellect which marks

this human nature is not the

tamer of

passions,

imperatrix,

hat we

find

in

the

De

iurepraedae,

ut

rather

a

recognizer

of

likeness.

Hence

what

Horace

said

in

his Satireswas

wrong:

for

the mother of

natural

right

is

not

utility

but 'human nature

itself,

which even

if

we were

in

need

of

nothing

would drive

us

to desire

mutual

society.'45

Natural

right

in

the

sense

of

equity

is

thus the

governing right

of

humanity.

The honestumwhich was

conspicuously

absent from the

Prolegomena

to the De iure

praedae

s now

conspicuously present.

Having

laid out natural

right

in

this

way

-

which

would,

as

Grotius

notoriously

said,

exist even

if

there

were no

God-

Grotius then

goes

on to

consider

the

principle

and

origin

of civil

right.

The

mother

of civil

right

is

'

obligation arising

from

consent'46

or

pacts,

just

as

in

the De

iurepraedae.

rotius

holds that

human

society

demands

that there should be

among

men some

mode

of

obliging

themselves,

and

the

only

natural mode is a

voluntary

arrangement

or

pact,

the

obligation

arising

from consent.

If

consent

alone cannot

generate

41

This is

the

position

of the

1625

edition. The

position

of the

1631

and

subsequent

editions

(I

have consulted those

of Amsterdam

I632

and Amsterdam

I646)

is that both

animals and human

beings

-

i.e. all nature

-

have

regard

for

the

other's

good.

I

cannot

see,

however,

that this

change

implies

any

radical new

departure

in Grotius's

theory,

but rather

a

deepening

of

the shift that

has

already

been made

in the De iure

belli

ac

pacis.

42

Hugo

Grotius,

De iure

belli ac

pacis (Paris,

I625), Prolegomena: 'appetitus

societatis,

id est

communitatis,

non

qualiscunque,

sed

tranquillae

et

pro

sui intellectus

modo

ordinatae

cum his

qui

sui

sunt

generis'.

43

Ibid.: 'cum

circa similia

similiter

agat'

(the

Amsterdam

1632

text

has 'cum circa

similia

similiter

agere

novit',

making

it

perhaps

clearer

than

in

the

I625

edition

that a

specific

mode of

human

cognition

is

involved;

but

again

I do

not

think

that this

represents

a

real

change

from

the

earlier

edition).

44

Ibid.:

'Haec vero

...

societatis

custodia

humano

intellectui

conveniens,

fons

est

ejus juris

quod proprie

tali nomine

appellatur.'

45

Ibid.

46

Ibid.:

'civilis

vero

juris

mater est

ipsa

ex consensu

obligatio'.

42



14/22

CIVIL PHILOSOPHY OF HUGO

GROTIUS

obligation,

then there can be no cities

in the first

place,

which

depend

on

pact

or

the

voluntary

agreement

of men. I shall

explore

this idea more

fully

shortly,

but for the moment

I shall

just say

that it is

necessary

because

Grotius

in

this

work,just as in the De iurepraedae,hinks of the city or civil commonwealth as

something

more than

just

a cluster

of

people mutually sharing

the benefits

of

civility.

The

city

or

commonwealth is unified

as

an

ordo

mperandi

t

parendi,47

something

which has

the

right

to

impose right

on its

citizens;

and that

right

requires ustification

in

terms outside

itself.

Meanwhile,

the

important

point

is

that

natural

obligation

is

possible

and

that natural

right

dictates

that

we

abide

by

those

obligations,

that

is,

that we

keep

our

pacts.

So civil

right

and

natural

right

have

different

principles

- the one

pact

or

obligation,

the

other human nature

itself.

However,

Grotius

goes

on,

'to

this

natural right utility was added: for the author of nature willed that we should

be alone and weak

and in need of

many things

in

order to

live life

in

a

fitting

manner,

so that all the more

we should

be carried

towards the

cultivation of

society'.

And it

is

utility,

rather

than

human nature

by

itself,

which

'provided

the occasion for

cities':

'for

that

association or

subjection

of

which we

have

spoken

began

to

be instituted for

the sake of

utility'.48

The

idea that

the

city

and its

peculiar

right

rests on

a double

basis of

pact

and

utility

is

familiar

from

the Ethics.

What

distinguishes

Grotius's

account from

the

Aristotelian,

however,

is

his

insistence that

obligation

or

pact

is

not

wholly

divorced

from

nature

and

natural

right.

Grotius

says

that

nature,

the

mother of

natural

right,

can

be

considered the

grandmother

of

civil

right

as

well,

in

the

sense

that it

is

human

nature

and its

principles

which

give

the

strength

to

natural

human

obligations.49

Hence there

is a

continuity

in

terms of

formal

justification

through

from

nature to

the

city

even

though

the

equity/utility disjunction

holds.

Pact is the

bridge

which

takes

us over

from the

natural

to

the civil.

We

can

see that

the notion

of

pact

as a

bridge

from

the

honestum

o the

utile

is

stronger

than the

rapprochement

between

thejustum

nd

the

utile hat

we

find

in

the

De

iure

praedae.

n

that work

Grotius

merely

had

to

show that

pact

was

the

way

in

which

individual

pursuit

of

utility might

not

violate the

principle

of

alterity.

Here,

working

with Connan's

disjunction

between thehonestumnd the

utile,

Grotius

finds

himself

obliged

to

reject

Connan's

account of

the

obligation

that

arises

from

pacts.

Connan

was

clear

that

there

was no

natural

law

obligation

to

keep

promises.

This

was

because

humanjuridical

interventions

or

establishments,

including pacts,

are,

precisely,

not

about

honesty

but

about

47

In

the

Protestant

tradition

this

goes

back

as far as

Melancthon:

'Politia est

legitima

ordinatio

civitatis,

secundum

quam

alii

praesunt,

alii

parent';

cit. in

Dreitzel,

Protestantischer

ristotelismus,

p.

93;

and

cf.

Kusukawa,

Transformation

f

natural

philosophy,

p. 69-71.

For

Grotius on

politia,

see

below

n.

70.

48

Grotius,De iurebelli acpacis (1625), Prolegomena: 'Sed naturali iuri utilitas accedit: voluit

enim

naturae auctor

nos

singulos

et

infirmos esse

et

multarum

rerum

ad vitam

recte

ducendam

egentes,

quo magis

ad

colendam

societatem

raperemur:

uri

autem civili

occasionem

dedit

utilitas:

nam

illa

quam

diximus

consociatio

aut

subiectio

utilitatis

causa

coepit

institui.'

49

Ibid.:

'potest

natura

huius

quoque

iuris

quasi

proavia

dici'.

43



15/22

utility.50

But

we

can

see

that this

was

unacceptable

to

Grotius,

who

wanted to

tie

the

civil

into the

natural. In Ch.

I

of

Book

ii,

'On

promises',

Grotius

explicitly

discusses

and

rejects

Connan's

thesis that

pacts

do

not

naturally

oblige without exchange.

For

first

of all it

follows from that

that

pacts

have

no

force

between

kings

and diverse

peoples

as

long

as

neither

side has

performed

...

And

secondly,

no

reason

can

be

found,

why

laws,

which are as if

the common

pact

of the

people,

and

are

called

by

that name

by

Aristotle and

Demosthenes,

can add an

obligation

to

pacts,

but the will

of someone

doing

this

in

order

to

oblige

himself cannot do the same.

Civility,

which is

pact

based,

presupposes

the

possibility

of

natural

obligation.

And

to

explain

this

natural

obligation,

which

escapes

the Aristotelian

tradition,

Grotius

again

deploys

the

most

strikingly

non-Aristotelian feature

of

the

De

iure

praedae,

which is the

possibility

of

the

human

will to determine the

right

of that

individual.

An

individual makes

a

pact

by

signifying

his

will to another: once

the will

is

signified,

he is

obliged

under

natural

right

to

keep

to

that

signified

will,

which is

nothing

other than

a

promise.

So

in

the

De

lure

belli ac

pacis,

Brett Natural Right and Civil Community Grotius

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