brett natural right and civil community grotius
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7/25/2019 Brett Natural Right and Civil Community Grotius
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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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7/25/2019 Brett Natural Right and Civil Community Grotius
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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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7/25/2019 Brett Natural Right and Civil Community Grotius
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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
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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
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7/25/2019 Brett Natural Right and Civil Community Grotius
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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
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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
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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
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7/25/2019 Brett Natural Right and Civil Community Grotius
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
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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
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7/25/2019 Brett Natural Right and Civil Community Grotius
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
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7/25/2019 Brett Natural Right and Civil Community Grotius
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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
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7/25/2019 Brett Natural Right and Civil Community Grotius
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
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7/25/2019 Brett Natural Right and Civil Community Grotius
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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
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7/25/2019 Brett Natural Right and Civil Community Grotius
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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
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7/25/2019 Brett Natural Right and Civil Community Grotius
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,