Criticism, fiction and other writing
More than 20 years ago I started to read the main works of Hugo Grotius. I was writing a thesis about the poet Andrew Marvell, and I wanted to try to clarify Marvell’s references to Grotius, particularly those in “The Character of Holland”, a satire written during the first Anglo-Dutch war. Marvell’s poem refers to two of the Dutchman’s works, Mare liberum and De iure belli ac pacis, and effectively accuses the United Provinces of acting as if they owned the sea, though their famous theorist had insisted that the sea was incapable of being owned.
As I read the longer of the two works, I was immediately drawn to a question that seemed to me much more fundamental and of wider applicability than the lawfulness of claiming rights over the sea: the basis, if one could be found, of natural law, assuming that such a thing could be said to exist.
Theories of natural law hold that humans are subject to some obligations and duties that exist independently of and prior to any “positive” laws, by which is meant laws enacted by human institutions, such as lawmaking bodies or absolute monarchs. For much of human history, natural law theories were based in religion: the law of nature was thought to derive its force and validity from the will (and command) of God. But what happens when we no longer believe in God? Can we still take natural law seriously?
Jeremy Bentham (1748–1832) insisted that positive law was the only kind of law that was binding or enforceable. His opinion has been very influential. In practice, we’re almost all believers in positive law now, most of the time. A lawyer arguing a case, or advising a client on what can or can’t legally be done, will want to be able to point to a statutory provision or a previously decided case to support the argument. There is certainly a wide range of positive law to govern almost any area of human activity that you can think of, and more is regularly being enacted. But what about earlier times, before legislatures were so powerful and so busy? Were there any obligations that were already binding on humans in “a state of nature”?
I’ve long thought that, if you believe the Nuremberg trials were anything more legitimate than “victors’ justice” — merely the imposition of its will by the prevailing party on the defeated one — you must effectively base that judgment on some idea of natural law, even if you call it something else. Where did that natural law come from?
The thing I was most excited to discover in Grotius’s writings was a possible answer to that question. I couldn’t imagine writing about Grotius without devoting substantial attention to the theory of natural law. That gave rise to two problems, though. I was writing about the theme of justice in Marvell’s works and, in the particular chapter I was then working on, about “Grotian concepts of justice” in some of his poems, particularly “The Character of Holland”. The issue relevant to that poem was the argument between Grotius and the English lawyer and historian John Selden about ownership of the sea.
Selden’s and Grotius’s differing views on this topic could be traced back to their ideas about natural law, by way of their contrasting theories as to how private ownership came to exist in the first place. Selden firmly believed that all law emanated from the will of a competent authority, and that the natural law consists of nothing other than God’s command, whereas Grotius believed, as we’ll see, something distinguishable from that. So I had some basis for bringing in a discussion of the differing theories of natural law, particularly as my theme was “justice”. In doing so, though, I’d be straying quite far from Marvell’s poem, which has nothing to say about the bases for the conflicting theories, and is instead concerned to accuse the Dutch of hypocrisy for acting inconsistently with the principles of their own theorist. By widening the discussion to include the theoretical differences between Grotius and Selden, I’d be losing my focus on the subject of Marvell’s poem.
Then there was the other problem: the conception I had of Grotius’s theory of natural law had been questioned by historians of political thought, who had contested the idea, previously popular among legal theorists in particular, that Grotius had been a more-or-less disinterested philosopher or theoretician of legal principles who effectively founded the field of international law. If I wanted to delve into Grotian thought, I’d have to demonstrate that I was aware of these developments in intellectual history, but to do so meant diverting my attention even further from Marvell’s poem.
In the end, I put the whole lot in: Selden’s and Grotius’s conflicting ideas of natural law and the law of nations, their different accounts of the origins of property rights, the criticisms of more recent historians of ideas of the more traditional legal historians’ picture of Grotius. It was only after 11 pages of this stuff that I came to discuss Marvell’s poem. No wonder the examiners of my thesis described it as “uneven”, and suggested that it could have been noticeably shorter. (Mercifully, they didn’t ask for any changes, though.)
Rereading the chapter recently after a gap of several years, I could see that I should have cut the natural law discussion completely. I could then equally have done without the review of (relatively) recent reassessments of Grotius’s thought, and reduced the comparison of the contrasting theories about the origin of ownership to a more manageable paragraph or two. Unfortunately, I was quite unable to see this at the time. Mistakenly, I thought I couldn’t remove part of the argument without leaving loose threads which would end up unravelling the whole.
I wanted to say something about the Grotian “minimalist” theory of natural law. Unfortunately, I was able to see that this topic was (a bit) more than tangentially relevant to the argument of my thesis, and I let myself go. It’s clear now that I ought to have written about it separately somewhere else. But at the time I was deep in the middle of my thesis, I didn’t have any other outlets — no blog, for example — and I couldn’t really think about writing a short, self-contained piece.
In Grotius’s theory, the natural law consists only of those fundamental precepts which are evident to all human beings by virtue of our rational nature (‘Preliminary Discourse’, VIII, Rights, pp. 86–7). Those precepts are binding on all people, including those who have a wholly erroneous, or no, idea of God (‘Preliminary Discourse’, XI, Rights, pp. 89–90). In other words, the natural law consists of those rules about which any rational being must think “it could not be otherwise”. This law is binding on all humans by virtue of its self-evident necessity, and this is equally true of humans to whom the word of God has never been revealed. Indeed, the law would still be binding even if (something that Grotius admits could not be asserted without the greatest wickedness) there were no God.
So, Grotius has arguably succeeded in putting forward a basis for law which is both antecedent to positive law and independent of divine command.
The precepts of natural law include the obligation that people should be bound by their agreements and the obligations that they have assumed towards others. It’s on this principle that the whole edifice of government and systems of law, starting with the law of nations (ius gentium), is founded. Grotius says that the law of nations is based on the (common) will of all, or at least of many, nations. Acknowledging that, the law of nature apart, there is hardly any law that is universally accepted, he notes that the law of nations is thought to differ from one part of the world to another. But broadly speaking, the law of nations is binding on nations because at one time everybody who is subject to it, or their predecessors, agreed to it and they’re obliged to stand by their agreements.
Richard Tuck describes the Grotian conception of natural law as “minimalist”, a label that is disputed by Johann P Sommerville, who points out that what Grotius has to say on the subject of natural rights is substantially the same as what had already been said by scholastic thinkers such as Suarez and Aquinas. According to Sommerville:
Suárez, for example, talked of natural law as obvious first principles of nature and reason, and precepts drawn from them by ‘evident necessity.’ Like Suárez and others, Grotius held that the laws of nature were deducible from a few principles, but he did not argue that the conclusions which could be drawn from those principles were minimal in number …
Grotius of course acknowledged a debt to Suarez and others but claimed to be treating the topic more systematically than those who had gone before, and in particular distinguishing between things that belonged in different categories. By recategorizing some things (notably rights of ownership) that had previously been considered part of the natural law as instead belonging to the law of nations, he undoubtedly reduced the scope of the former. It’s also true that the incomplete enumeration he attempted of the precepts of natural law has every appearance of minimalism:
… to which belongs the Abstaining from that which is another’s, and the Restitution of what we have of another’s, or of the profit we have made by it, the Obligation of fulfilling Promises, the Reparation of a Damage done through our own Default, and the Merit of Punishment among Men’ (‘Preliminary Discourse’, VIII, Rights, p. 86).
I think it’s fair to summarize the broad general argument of the historians of ideas and/or political thought as saying that Grotius wasn’t the conscious and intentional innovator that he was often taken to be, particularly by credulous lawyers who didn’t know their history as well as they thought. No doubt some of those enthusiastic followers overlooked the degree to which his work is based on existing traditions, both scholastic and jurisprudential. But there’s plenty of evidence in the writings themselves that he believed he was doing something new, and it’s objectively true that something new emerged from his works, whatever may have been his intentions: the world now had a theory of natural law that did not depend on the will, the command, or even the existence of God.
Posted by Art, 17-Jun-2023.