the rghts of war and peace book
natural law and enlghtenment classcs Knud Haakonssen General Edtor
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uuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuu natural law and enlghtenment classcs The Rghts of War and Peace book Hugo Grotus Edted and wth an Introducton by Rchard Tuck From the edton by Jean Barbeyrac Major Legal and Poltcal Works of Hugo Grotus lberty fund Indanapols
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Ths book s publshed by Lberty Fund, Inc., a foundaton establshed to encourage study of the deal of a socety of free and responsble ndvduals. The cuneform nscrpton that serves as our logo and as the desgn motf for our endpapers s the earlest-known wrtten appearance of the word freedom (amag), or lberty. It s taken from a clay document wrtten about 2300 b.c. n the Sumeran cty-state of Lagash. 2005 Lberty Fund, Inc. All rghts reserved Prnted n the Unted States of Amerca 09 08 07 06 05 c 5 4 3 2 09 08 07 06 p 5 4 3 2 Frontspece: Portrat of Hugo de Groot by Mchel van Merevelt, 1608; ol on panel; collecton of Hstorcal Museum Rotterdam, on loan from the Van der Mandele Stchtng. Reproduced by permsson. Lbrary of Congress Catalogng-n-Publcaton Data Grotus, Hugo, 1583 1645. [De jure bell ac pacs lbr tres. Englsh] The rghts of war and peace/hugo Grotus; edted and wth an ntroducton by Rchard Tuck. p. cm. (Natural law and enlghtenment classcs) Major legal and poltcal works of Hugo Grotus T.p., v. 1. Includes bblographcal references. sbn 0-86597-432-2 (set: hard) sbn 0-86597-436-5 (set: soft) sbn 0-86597-433-0 (v. 1: hc) sbn 0-86597-437-3 (v. 1: sc) 1. Internatonal law. 2. Natural law. 3. War (Internatonal law). I. Tuck, Rchard, 1949. II. Ttle. III. Seres. kz2093.a3j8813 2005 341.6 dc22 2004044217 lberty fund, nc. 8335 Allson Ponte Tral, Sute 300 Indanapols, Indana 46250-1684
contents volume 1 Introducton A Note on the Text Acknowledgments x xxxv xxxx the rghts of war and peace, book 1 volume 2 the rghts of war and peace, book 389 volume 3 the rghts of war and peace, book 1185 Appendx: Prolegomena to the Frst Edton of De Jure Bell ac Pacs 1741 Bblography of Postclasscal Works Referred to by Grotus 1763 Bblography of Works Referred to n Jean Barbeyrac s Notes 1791 Index to Ths Edton 1815
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ntroducton In the famous dedcaton of hs Dscourse on the Orgn of Inequalty to the Republc of Geneva, Jean-Jacques Rousseau drew a vvd pcture of hs father sttng at hs watchmaker s bench. I see hm stll, lvng by the work of hs hands, and feedng hs soul on the sublmest truths. I see the works of Tactus, Plutarch, and Grotus, lyng before hm n the mdst of the tools of hs trade. At hs sde stands hs dear son, recevng, alas wth too lttle proft, the tender nstructon of the best of fathers.... Rousseau s remnscence s testmony to the authorty whch Grotus s De Iure Bell ac Pacs had come to possess n the century snce t was frst publshed n 1625; n the eyes of both father and son, the book had the same standng as the great works of classcal antquty. Rousseau was to devote much of hs lfe to a complcated and subtle repudaton of Grotus, but he never lost hs sense of the book s mportance, descrbng Grotus n Emle as the master of all the savants n poltcal theory (though he added that, nevertheless, he s but a chld, and, what s worse, a dshonest chld, and that true poltcal theory s yet to appear, and t s to be presumed that t never wll ). 1 The same sense of Grotus s mportance, wthout any of Rousseau s reservatons, had led the Elector Palatne n 1661 to endow a char n the Unversty of Hedelberg for the express purpose of provdng a commentary on the De Iure Bell ac Pacs, a fact whch s noted n the Lfe prefaced to thsedton; as the Lfe also notes, the book was ssued as a full edton wth notes by 1. For the dedcaton, see The Socal Contract and Dscourses, trans. G. D. H. Cole, revsed ed. J. H. Brumftt and John C. Hall (Everyman 1973), 34; for Emle, see Rousseau, Poltcal Wrtngs, ed. C. E. Vaughan (Oxford: Oxford Unversty Press, 1915), 2:147. x
x ntroducton varous commentators, 2 by whch means our Author, wthn 50 Years after hs Death, obtaned an Honour, whch was not bestowed upon the Ancents tll after many Ages. The dea that the book represented somethng new and mportant for the modern age was repeatedly voced n the hstores of moralty, whch began to appear n the late seventeenth century; Grotus was descrbed as breakng the ce after the long wnter of ancent and medeval ethcs. 3 By the end of the seventeenth century there had been twenty-sx edtons of the Latn text, and t had been translated nto Dutch (1626, ressued three tmes n the century), Englsh (1654, ressued twce), and French (1687, ressued once). Its popularty scarcely slackened n the eghteenth century: there were twenty Latn edtons, sx French, fve German, two Dutch, two Englsh, and one Italan (and one Russan, crculated n manuscrpt). 4 However, for many eghteenth-century readers the defntve verson of the book had appeared n Latn n 1720, when Jean Barbeyrac ssued a new edton, followed by a French translaton n 1724 wth elaborate notes. 5 Barbeyrac was a leadng fgure n the French Protestant daspora, the network of scholars whose famles had been drven out of France followng the revocaton of the Edct of Nantes by Lous XIV n 1685. He worked trelessly to put hs own verson of modern natural law before the European publc, and hs edtons of Grotus bult on the success of a smlarly elaborate edton whch he had produced of Samuel Pufendorf s De Iure Naturae et Gentum n 1706. The notes to these edtons 2. Ths was the edton that appeared n 1691 from a press at Frankfurt-on-Oder, wth commentary by Gronovus, Boecler, Hennges, Osander, and Zegler, names that wll become famlar from Barbeyrac s notes n ths edton. 3. See Barbeyrac s remark n hs An Hstorcal and Crtcal Account of the Scence of Moralty, prefaced to hs edton of Pufendorf, The Law of Nature and Natons (London, 1749), 67. 4. Ths nformaton s from J. ter Meulen and P. J. J. Dermanse, Bblographe des écrts mprmés de Grotus (The Hague, 1950). For an exemplary modern edton of the Latn text, see B. J. A. De Kanter van Hettnga Tromp s 1939 edton, reprnted wth extensve addtonal materal by R. Feenstra and C. E. Persenare (Aalen: Scenta Verlag, 1993). 5. Both the Barbeyrac Latn and French edtons were from Amsterdam; the French verson was dedcated to George I of England.
ntroducton x keyed ther texts nto all the relevant dscussons of natural law from antquty down to the 1720s, and the two works together quckly became the equvalent of an encyclopeda of moral and poltcal thought for Enlghtenment Europe. The French verson of De Iure Bell ac Pacs was reprnted steadly through the mddle years of the century, and t found an audence beyond the French-speakng polte world n an Englsh translaton of 1738, whch s reprnted n ths edton, and whch seems to have been produced n a large prnt run. 6 Copes of t are very common, and are found n most academc and prvate lbrares of the perod for example, General Washngton, lke most well-educated Englsh gentlemen, possessed a copy, whch s now n the Houghton Lbrary at Harvard. An Italan translaton appeared n 1777. As ths publshng hstory n tself llustrates, t would be hard to magne any work more central to the ntellectual world of the Enlghtenment. But from the late eghteenth century onward, the stream of new edtons dred up, and the book came to be treated not as the formatve work of modern moral and poltcal theory but as an mportant contrbuton to a dfferent genre, nternatonal law (a term coned by Jeremy Bentham n 1780). Many ntellectual developments of the perod contrbuted to ths shft, ncludng the crtcsms of Grotus found (alongsde hs admraton) n Rousseau, and the contempt expressed by Kant for the sorry comforters such as Grotus and Pufendorf, whose works are stll dutfully quoted n justfcaton of mltary aggresson, although ther phlosophcally or dplomatcally formulated codes do not and cannot have the slghtest legal force, snce states as such are not subject to a common external constrant. 7 Wllam Whewell, professor of nternatonal law at Cambrdge and translator of Grotus, tred n the md-nneteenth century to restore Grotus as a major moral thnker, but wth lmted success; by the tme of the post Frst World War settlement, Grotus was regarded almost exclusvely as the founder of modern cvlzed nterstate relatons, and as a sutable tutelary presence for the new 6. For full detals, see A Note on the Text at the end of the ntroducton. 7. Immanuel Kant, Poltcal Wrtngs, ed. Hans Ress, trans. H. B. Nsbet, 2d ed. (New York: Cambrdge Unversty Press, 1991), 103.
x ntroducton Peace Palace at The Hague. As we shall see, n some ways that was to radcally msunderstand Grotus s vews on war; he was n fact much more of an apologst for aggresson and volence than many of hs more genunely pacfc contemporares. It was also and more serously to gnore the genunely nnovatve qualtes of hs moral theory, qualtes that enttle hm to an essental place n the hstory of poltcal theory. Hugo Grotus was born on 10 Aprl 1583, to one of the wealthy rulng famles n the Dutch cty of Delft. The De Groots ( Grotus s the Latnzed verson of hs Dutch name n common wth ntellectuals all over Europe, Grotus spoke and wrote to hs fellow wrters n Latn, and gave hmself an approprately Latn name) were regents of the cty; that s, they were members of the self-selectng olgarchy whch governed Delft, lke many other Dutch ctes. The generaton before Grotus s brth, hs relatves had fought n the great struggle that establshed the freedom of the northern provnces of the Netherlands from the rule of the Spansh Crown, and many of Grotus s wrtngs dsplay the ntense patrotsm engendered by that struggle. In Grotus s case, hs patrotsm was as much focused on what he called hs naton, the provnce of Holland and Zeeland, as t was on the wder Unted Provnces, whch had collectvely asserted ther ndependence, and whch form the modern kngdom of the Netherlands. All hs lfe, Grotus remaned wedded to the olgarchc republcansm of ctes such as Delft, and somewhat wary of bgger states. Hs famly had not merely fought n the war of ndependence; they were also partcpants n one of the great sources of Dutch wealth and power, the overseas tradng and mltary actvty of the Dutch East Inda Company. Formed out of a unon of varous smaller companes n 1602, the East Inda Company was the frst of the enormous corporatons that were to domnate the European overseas expanson n the seventeenth and eghteenth centures; n ts frst year of operaton ts gross ncome already exceeded the ordnary revenue of the Englsh government, and (lke the Englsh East Inda Company a hundred years later) t sent out mltary forces as well as tradng vessels n order to overawe ts rvals and offer help to dssdent groups all over the Far East. The De Groots were
ntroducton x shareholders n the company and sat on the board of one of ts chambers n Delft. The fact that one of the prncpal actors n nternatonal poltcs at the begnnng of the seventeenth century was not a state but a prvate corporaton was to be of enormous sgnfcance n the formaton of Grotus s poltcal thought. The young Grotus was educated as a humanst, n the tradton gong back to the Italan Renassance n whch the study of classcal texts provded an entre educaton, and n whch the ablty to wrte and speak persuasvely, usng all the ancent arts of rhetorc, was przed above all thngs. Although Grotus frequently cted phlosophcal texts wrtten n a more scholastc style (that s, the style of the schoolmen of the Mddle Ages, n whch moral or legal ssues were dscussed n a knd of Arstotelan termnology, wth lttle regard for lterary elegance), hs own wrtng was always essentally humanst n character. The De Iure Bell ac Pacs s full of lterary and hstorcal materal from antquty, and Grotus would have been delghted that a Genevan watchmaker should thnk that hs book was a natural companon to the works of Tactus and Plutarch. Grotus was a prodgy wthn ths educaton system and quckly made hs reputaton as a Latn poet and hstoran. For these rhetorcal sklls he was pcked (as well-traned humansts always hoped to be) as an advser and secretary by a leadng poltcan, Jan van Oldenbarnevelt, who was n effect prme mnster of the Dutch Republc. Grotus quckly became caught up n the poltcal struggles of the new republc, an nvolvement that was ultmately to prove personally dsastrous for hm. Techncally, the Unted Provnces was a kngdom wth a vacant throne: the Kng of Span had been drven out but had not been replaced. In hs absence, and pendng the appontment of a new monarch (whch was serously consdered for the frst ffty years of the republc s exstence), government was dvded between the old royal governors of the seven provnces, the Statholders, and the old representatve assembles for the provnces, the Estates. The assembles sent delegates to an Estates General of the Unon at The Hague, whle most of the provnces had come to appont the same man as ther Statholder, the Prnce of Orange. The Unon thus possessed both a monarchcal and a republcan element n ts consttuton, though the consttutonal bass for the powers of the
xv ntroducton dfferent elements was far from clear; n practce, the Statholder possessed mltary authorty as the commander n chef of the republc s armes, whle the Estates possessed the power of taxaton and fnance. Each element also had a dfferent range of supporters: broadly speakng, the Calvnst Church and ts mnstry looked to the prnces of the House of Orange to secure ts power over the populaton, whle other more heterodox relgous groups looked to the olgarchcal urban rulers for ther protecton. Durng the frst two decades of the seventeenth century, the relgous antagonsms wthn the republc reached the pont where cvl war was threatened. Many people (ncludng to some extent Grotus hmself) felt that there had been lttle pont n throwng off the tyranny of Span f t was to be replaced by the tyranny of an organzed and ntolerant Calvnst Church. Oldenbarnevelt and Grotus worked trelessly on behalf of the Estates to try to protect the more lberal theologans (n partcular, the mnsters who agreed wth Jacobus Armnus s denal of the Calvnst doctrne of grace) from the attacks of the Calvnsts; Grotus also crculated prvately a theologcal work of hs own n whch he argued for a mnmalst and renc verson of Chrstanty. 8 But n the end, both Oldenbarnevelt and Grotus seem to have concluded that the only way to secure relgous toleraton n the republc was n effect to mount a mltary coup aganst the Statholder and thereby to remove the prncpal weapon n the hands of the Calvnsts. There s a close parallelwthevents thrty years later n England, when the representatves of heterodox relgous groups n the House of Commons also came to the concluson that only a coup aganst ther prnce would destroy the power of the church that he supported. In England, the Commons won, though only after a long and bloody cvl war; n the Unted Provnces, Oldenbarnevelt and Grotus lost. Prnce Maurce arrested them both and had them arragned for treason; Grotus gave evdence aganst hs old frend 8. Hs Meletus sve De s quae nter Chrstanos convent epstola, wrtten n 1611; edted by G. H. M. Posthumus Meyjes (Leden: Brll, 1988). See also hs wrtngsfrom 1614 onward on ecclesastcal power, dscussed by H. J. van Dam n hs edton of Grotus s De Impero Summarum Potestatum crca Sacra (Leden: Brll, 2001).
ntroducton xv and was sentenced to lfe mprsonment, whle Oldenbarnevelt was publcly beheaded n May 1619. Grotus was taken n the wnter of 1618 to hs prson, Louvesten Castle, n the south of the Unted Provnces. He lved there untl March 1621, when he escaped n famous and romantc crcumstances: hs wfe arrved wth a basket of books; Grotus (who was qute a small man) hd n the empty basket and was carred out of the castle. He succeeded n crossng the border to the Spansh Netherlands undetected, and took refuge n France, where he lved for most of the rest of hs lfe. He returned to the Unted Provnces under a false dentty n October 1631, hopng that Maurce s successor as Statholder, Frederck Wllam (who had always been personally sympathetc to Grotus), could arrange for hm to be rehabltated; but n the end Frederck Wllam could not delver an annulment of the orgnal convcton, and Grotus slpped out of the country agan n Aprl 1632. As we shall see, these sx months n hs natve land had an mportant effect on the receved text of De Iure Bell ac Pacs, snce Grotus ssued a second edton of the work durng ths perod n whch some of hs more dsturbng clams were modfed n order to wn over hs Dutch opponents. For the next three years he moved around Germany, untl at the begnnng of 1635 the government of Sweden apponted hm as ther ambassador to France, a post that allowed hm to play a major role n the complex dplomacy surroundng the last years of the Thrty Years War. There was always a certan amount of unease n Sweden about usng hm n ths mportant poston, however, and n 1645 Grotus vsted Sweden to defend hmself aganst crtcsm; he passed brefly through the Unted Provnces on hs way, wthout molestaton. He faled to persuade the Swedes to renew hs appontment, and left the country; hs shp was caught n a storm n the Baltc and wrecked on the coast near Rostock. Grotus collapsed on shore after beng rescued, and ded n Rostock on 28 August 1645. Hs body was returned to Delft and gven an honored bural by the same Dutch authortes who had kept hm n exle for twenty-four years. Though t was not publshed untl four years after hs escape, De Iure Bell ac Pacs really grew out of Grotus s tme n prson. Poltcal prs-
xv ntroducton oners n the sxteenth and seventeenth centures enjoyed full access to ther books and papers, and unlmted tme to wrte: Sr Walter Ralegh, for example, wrote hs massve Hstory of the World whle awatng executon n the Tower of London. Hs two years n Louvesten allowed Grotus to revst old projects; as he wrote to hs old frend G. J. Vossus n July 1619, I have resumed the study of jursprudence [urs studum ] whch had been nterrupted by all my affars, and the rest of my tme s devoted to moral phlosophy [moral sapentae ]. 9 He told Vossus that to help hs work n moral phlosophy he was gvng a Latn dress to the ethcal passages n the Greek poets and dramatsts collected by the Byzantne anthologst Stobaeus, 10 and the effect of ths approach to the subject s vsble on every page of the De Iure Bell ac Pacs. Rousseau was to remark sardoncally that Grotus s use of quotatons concealed the fundamental smlarty between Grotus and Hobbes: The truth s that ther prncples are exactly the same: they only dffer n ther expresson. They also dffer n ther method. Hobbes reles on sophsms, and Grotus on the poets; all the rest s the same. 11 Grotus also turned hs attenton to rewrtng and expandng hs earler work on theology, and t was ths whch he brought to fruton frst after hs escape; 12 but once settled n France he concentrated on hs jurdcal and moral project and wrote De Iure Bell ac Pacs between the autumn of 1622 and the sprng of 1624, partly whle stayng as a guest at the country house of one of the pres- 9. Grotus, Brefwsselng, ed. P. C. Molhuysen, vol. 2 (The Hague, 1936), 15 (no. 590). 10. In 1623 he publshed these translatons, wth an ntroducton that broaches some of the themes later developed n De Iure Bell ac Pacs, n a volume enttled Dcta Poetarum quae apud Io. Stobaeum exstant. The book was publshed n Pars by Ncolas Buon, the same prnter who was to produce De Iure Bell ac Pacs; Grotus had been stayng at Buon s house snce he arrved n Pars. 11. Rousseau, Poltcal Wrtngs, 2:147. 12. In 1622 he publshed Bewys van den waren godsdenst, the Dutch forerunner of hs later De vertate relgons Chrstanae, whch he had composed n prson; fve years later he produced the Latn verson. In 1622 he also publshed hs Dsqusto an Pelagana snt ea dogmata quae nunc sub eo nomne traducuntur, pckng up on the themes n debate between the Armnans and ther opponents; and hs Apologetcus eorum qu Hollandae ex legbus praefuerunt, defendng hs conduct n the attempted coup of 1618.
ntroducton xv dents of the Parlement of Pars, Henr de Mesmes, at Balagny near Senls. 13 Prntng took place slowly and neffcently from January to March 1625; 14 copes were rushed to the Frankfurt Book Far n March n order to catch the eye of the European publc, 15 and n May Grotus was at last able to gve a presentaton copy to the book s dedcatee, Kng Lous XIII of France. 16 Among the papers to whch he must have turned whle n prson was a long manuscrpt whch he had wrtten n 1606, before the practcal requrements of Dutch poltcs came to occupy all hs tme and attenton. It was a defense of the mltary and commercal actvty of the Dutch East Inda Company n the Far East, and n t the central themes of De Iure Bell ac Pacs were already adumbrated. He had begun to crculate the manuscrpt among hs frends, no doubt wth a vew to publshng t, but n the end only Chapter XII of the manuscrpt had appeared n prnt, as the famous Mare Lberum (1609); clearly, Grotus decded that hs enforced lesure at Louvesten was an deal opportunty to rewrte ths early draft and fnally put t n a publshable form. 17 The manuscrpt lay unknown among Grotus s papers untl 1864, when t was dscovered and publshed; ts frst edtor gave t the ttle De Iure Praedae, The Law of Przes, but Grotus hmself referred to t more loosely as hs De Inds, and ts real scope was expressed by the subttle of Mare Lberum, a dssertaton on the law whch covers the Hollanders trade wth the Indes. 18 Dutch expanson n the Far East was a pecularly fertle context for Grotus s poltcal theory to develop, snce (as I sad earler) t was essentally drven by a prvate corporaton, nteractng wth local rulers 13. See among other references Brefwsselng, 2:254, 260, 283, 296, 327, 358. 14. See, for example, Brefwsselng, 2:409, 417, 422, 426. 15. The copes at Frankfurt lacked the ndexes (Brefwsselng, 2:433, no. 958). 16. Ibd., 449. 17. Even as the De Iure Bell ac Pacs was beng prnted, Grotus was thnkngabout a new edton n whch the work would appear alongsde Mare Lberum and hs essay on the Dutch consttuton, De Antqutate Batavcae Republcae of 1610 (Brefwsselng, 2:426). He clearly dd not suppose then that De Iure Bell ac Pacs had superseded the earler work. De Iure Bell ac Pacs and Mare Lberum dd appear together n an Amsterdam edton of 1632, though ths may not have been authorzed. 18. De jure quod Batavs compett ad Indcana commerca dssertato.
xv ntroducton such as the sultan of Johore and offerng them mltary protecton and benefcal tradng arrangements. The Indan Ocean and the Chna Sea were an arena n whch actors had to deal wth one another wthout the overarchng frameworks of common laws, customs, or relgons; t was a provng ground for modern poltcs n general, as the states of Western Europe themselves came to terms wth relgous and cultural dversty. The prncples that were to govern dealngs of ths knd had to be approprately strpped down: there was no pont n assertng to a kng n Sumatra that Arstotelan moral phlosophy was unversally true,andnot much more pont n tellng the admral of the Dutch East Inda Company s fleet that he had to wat for some judcal pronouncement by an approprate soveregn before makng war on a threatenng naval force. The mnmalst character of the prncples that emerged from ths settng caught the magnaton of modern Europe, for they seemed to offer the prospect of an understandng of poltcal and moral lfe to whch all men the poor and dspossessed and relgously heterodox of Europe as well as the exotc peoples of the Far East or the New World could gve ther assent. Grotus boldly stated hs central argument as follows: God created man au teqoúson, free and su urs, so that the actons of each ndvdual and the use of hs possessons were made subject not to another s wll but to hs own. Moreover, ths vew s sanctoned by the common consent of all natons. For what s that well-known concept, natural lberty, other than the power of the ndvdual to act n accordance wth hs own wll? And lberty n regard to actons s equvalent to ownershp n regard to property. Hence the sayng: every man s the governor and arbter of affars relatve to hs own property. 19 Grotus remaned commtted to ths vew n De Iure Bell ac Pacs, remarkng n one of ts most strkng passages that there are several Ways of lvng, some better than others, and every one may chuse what he 19. De Iure Praedae Commentarus, trans. Gwladys L. Wllams and Walter H. Zeydel (Carnege Endowment for Internatonal Peace, Oxford Unversty Press, 1950), 1:18.
ntroducton xx pleases of all those Sorts. 20 He thus presupposed the naturally autonomous agents famlar to us from later seventeenth- and eghteenthcentury poltcal theory, who constructed ther poltcal arrangements through voluntary agreements. Though he dd not have precsely the concept of the state of nature, whch was so central to Hobbes and hs successors, and whch they always contrasted wth cvl Socety (the product of agreement among naturally free men), he dd use the terms n somewhat smlar ways; 21 and of course the doman of foregn trade and war was n tself the best example of such a state, and was always used as such by later wrters. The prncples governng these autonomous natural ndvduals were also stated very planly n De Iure Praedae. The Prolegomena to the work began wth two fundamental laws of nature: frst, that It shall be permssble to defend [one s own] lfe and to shun that whch threatens to prove njurous; secondly, that It shall be permssble to acqure for oneself, and to retan, those thngs whch are useful for lfe. The latter precept, ndeed, we shall nterpret wth Ccero as an admsson that each ndvdual may, wthout volatng the precepts of nature, prefer to see acqured for hmself rather than for another, that whch s mportant for the conduct of lfe. Moreover, no member of any sect of phlosophers, when embarkng upon a dscusson of the ends [of good and evl], has ever faled to lay down these two laws frst of all as ndsputable axoms. For on ths pont the Stocs, the Epcureans, 20. I.III.8. As ts context llustrates, of course, ths stress on fundamental moral lberty s compatble wth a voluntary renuncaton of cvl lberty I.III.8 s the famous defense of absolutsm. The term au teqoúsonalso occurs three tmes n De Iure Bell ac Pacs, wth the same meanng as n De Iure Praedae. See, for example, hs descrpton of a chld who has grown up and left home as altogetherau teqoúsoc, at hs own Dsposal (II.V.6), and also II.XX.48.2 n. 6 and II.XXI.12. 21. See n partcular II.VII.27.1, whch contrasts the State of Nature wth cvl Jursdcton. II.VI.5, whch n the Englsh translaton also refers to a meer State of Nature n opposton to cvl socety, n the orgnal Latn refers to us naturae. Other references to the state of nature, n the Latn as well as the Englsh texts, occur at II.V.9.2 and II.V.15.2, though they contrast nature wth grace, n a more tradtonal fashon. Grotus uses the term cvl socety: see, for example, I.IV.2.
xx ntroducton and the Perpatetcs are n complete agreement, and apparently even the Academcs [.e., the Skeptcs] have entertaned no doubt. 22 The last part of ths passage emphaszes Grotus s concern that whatever one s ethcal commtments, hs mnmalst prncples should be acceptable; n De Iure Bell ac Pacs he made the same pont by selectng Carneades, the leader of the Skeptcal Academy, as the person whom he needed to defeat n argument. Grotus termed these laws of nature, but snce they were permssve n form they mght be better termed rghts ; and ths s what he duly dd n De Iure Bell ac Pacs, where the Rght of recurrng to Force, n defence of one s own Lfe (I.II.3) and the rght of nnocent Proft; where I only seek my own Advantage,wthout damagng any Body else (II.II.11) are the basc rghts whch recur throughout the book. The rght to defend oneself, Grotus always beleved, extends beyond merely respondng to an mmedate attack. It also ncludes what we would normally thnk of as punshment, that s, the exercse of volence aganst a thrd party by whom we are not drectly threatened. He was aware that ths was an extremely dsturbng dea, as tradtonally ths rght was the specal prerogatve of cvl soveregns. Is not the power to punsh essentally a power that pertans to the state [respublca ]? Not at all! On the contrary, just as every rght of the magstrate comes to hm from the state, so has the same rght come to the state from prvate ndvduals; and smlarly, the power of the state s the result of collectve agreement... Therefore, snce no one s able to transfer a thng that he never possessed, t s evdent that the rght of chastsement was held by prvate persons before t was held by the state. The followng argument, too, has great force n ths connexon: the state nflcts punshment for wrongs aganst tself, not only upon ts own subjects but also upon foregners; yet t derves no power over the latter from cvl law, whch s bndng upon ctzens only because they have gven ther consent; and therefore, the law of nature, or law 22. De Iure Praedae Commentarus, trans. Wllams and Zeydel, 2:10 11.
ntroducton xx of natons, s the source from whch the state receves the power n queston. 23 Ths last argument s of course dentcal to the one used later by Locke and descrbed by hm as a very strange doctrne. 24 Intrgungly, he would not have found ths partcular pont n De Iure Bell ac Pacs, though he would have found a clear statement of the general clam, for example at II.XX.3.1. The Subject of ths Rght, that s, the Person to whom the Rght of Punshng belongs, s not determned by the Law of Nature. For natural Reason nforms us, that a Malefactor may be punshed, but not who ought to punsh hm. It suggests ndeed so much, that t s the fttest to be done by a Superor, but yet does not shew that to be absolutely necessary, unless by Superor we mean hm who s nnocent, and detrude the Gulty below the Rank of Men, and place them among the Beasts that are subject to Men, whch s the Doctrne of some Dvnes. These natural rghts of self-defense are balanced, n both De Iure Praedae and De Iure Bell ac Pacs, by two laws, properly so called. In the earler work he specfed the laws as Let no one nflct njury upon hs fellows and Let no one seze possesson of that whch has been taken nto the possesson of another. However, he was at pans to stress that the rghts of nature took precedence (as they were to later n Hobbes): the order of presentaton of the frst set of laws and of those followng mmedately thereafter has ndcated that one s own good takes precedence over the good of another person or, let us say, t ndcates that by nature s ordnance each ndvdual should be desrous of hs own good fortune n preference to that of another... 25 23. De Iure Praedae Commentarus, trans. Wllams and Zeydel, 1:91 92. For the Latn text, the easest source (snce the Carnege Endowment text s a photocopy of the manuscrpt) s stll the orgnal edton by H. G. Hanaker (The Hague, 1868), 91. See also Peter Borschberg, Hugo Grotus: Commentarus n Theses XI (Berne, 1994), 244 45, for an early statement of ths dea, n the manuscrpt whch seems to be part of the workng papers for the De Inds. 24. Two Treatses of Government, ed. Peter Laslett (Cambrdge: Cambrdge Unversty Press, 1988), 272 (II.9). 25. De Iure Praedae Commentarus, trans. Wllams and Zeydel, 1:21.
xx ntroducton In the later work, he most clearly lsted the basc laws of nature n a passage n the Prelmnary Dscourse, VIII: the Abstanng from that whch s another s, and the Resttuton of what we have of another s, or of the Proft we have made by t, the Oblgaton of fulfllng Promses, the Reparaton of a Damage done through our own Default, and the Mert of Punshment among Men. And he made clear n hs long defense of volence, Book I, Chapter II, that these laws dd not supersede our natural rght to defend ourselves: The Chrstan Relgon commands, that we should lay down our Lves one for another; but who wll pretend to say, that we are oblged to ths by the Law of Nature[?] (I.II.6.2). The natural state of man was thus one of wary defensveness: men should not unnecessarly njure one another, but they need not actually help one another. Only f they formed cvl assocatons, wth the express ntenton of mprovng one another s lves and creatng somethng rcher than the state of nature, would prncples such as mutual ad apply. In a cty, Frst, Indvdual ctzens should not only refran from njurng other ctzens, but should furthermore protect them, both as a whole and as ndvduals; secondly, Ctzens should not only refran from sezng one another s possessons, whether these be held prvately or n common, but should furthermore contrbute ndvdually both that whch s necessary to other ndvduals and that whch s necessary to the whole... 26 In De Iure Bell ac Pacs he sad the same, n hs dscusson of the dfference between correctve and dstrbutve justce. Dstrbutve justce, he argued, was concerned wth a prudent Management n the gratutous Dstrbuton of Thngs that properly belong to each partcular Person or Socety, so as to prefer sometmes one of greater before one of less Mert, a Relaton before a Stranger, a poor Man before one that s rch, and that accordng as each Man s Actons, and the Nature of the Thng requre; whch many both 26. Ibd., 21.
ntroducton xx of the Ancents and Moderns take to be a part of Rght properly and strctly so called; when notwthstandng that Rght, properly speakng, has a qute dfferent Nature, snce t conssts n leavng others n quet Possesson of what s already ther own, or n dong for them what n Strctness they may demand. (Prelmnary Dscourse, X) Arstotle (the most relevant Ancent referred to) was therefore wrong: t was not part of basc justce to thnk about the needs of others. Justce properly understood nvolved merely a commtment not to njure other people, unless dong so was necessary n order to protect one s own rghts. In both De Iure Praedae and De Iure Bell ac Pacs, Grotus presented these prncples of natural law as themselves derved from some fundamental metaethcal commtments, and the character of these commtments occasoned extensve controversy, both n hs own tme and later. Although the Prolegomena to De Iure Praedae began wth the smple statement What God has shown to be Hs Wll, that s law, even n that work Grotus refused to derve the laws of nature from oracles and supernatural portents. 27 Instead, they were to be deduced solely from the desgn [ntento] of the Creator as manfested n the generally recognzed consttuton of the natural world. Self-defense was the frst and most basc of all prncples: all ndvduals (not just men, but also anmals, and even nanmate objects) possessed a fundamental drve to preserve themselves. Grotus was even prepared to say (quotng Horace) that to ths extent expedency [utltas, proft or self-nterest ] mght perhaps be called the mother of justce and equty, though he acknowledged that only part of justce was based on self-defense. Once ther preservaton was secured, ndvduals had other goals; n the case of men (and to a degree far exceedng that of other creatures), they were endowed wth a desre for a socal lfe wth other ndvduals of the same knd. Grotus more than once n De Iure Praedae descrbed ths trat as homn proprum, specal to men, 28 and from t he derved the remanng part 27. Ibd., 8. 28. De Iure Praedae Commentarus, ed. Hanaker, 12; see also page 13, medam justtam, quae humano gener propra est.
xxv ntroducton of natural justce, the laws oblgng us to abstan from njurng our fellow men. But n hs dscusson of ths part he always nssted on ts subordnate status to the rght of self-preservaton and on ts mnmal character mutual ad and dstrbutve (as dstnct from correctve) justce were not part of ths natural cognato 29 but appeared wth ctes and cvl socety. In the Prolegomena to De Iure Bell ac Pacs, Grotus set out a very smlar theory, though ts smlartes to the earler work were apprecably clearer n the frst edton than n the edton he produced whle attemptng to return to the Unted Provnces. Just as n De Iure Praedae he had restrcted the dervaton of natural law to what all men agreed on as the basc physcal prncples governng all bengs, so n the Prolegomena to De Iure Bell ac Pacs he asserted that t necessarly derves from ntrnsc prncples of a human beng. 30 He was now even more blunt about the exguous role of God, declarng n the most famous remark of the book that what I have just sad would be relevant even f we were to suppose (what we cannot suppose wthout the greatest wckedness) that there s no God, or that human affars are of no concern to hm. 31 As n De Iure Praedae, Grotus accepted that God had ndeed created the world and peopled t wth bengs consttuted along these lnes; but one dd not need to thnk about the dvne character of the creaton to apprehend what the consttuton of the physcal world was, and all peoples at all perods of hstory, rrespectve of ther relgous commtments, had agreed on the prncples of natural law. Self-preservaton was stll the frst of these prncples: nature drves each anmal to seek ts own nterests [utltates ], and ths was true of man before he came to the use of that whch s specal to man [antequam ad usum eus quod homn proprum est, pervenert]. But ths was balanced by the same deas as n 29. That s, relatonshp or smlarty. De Iure Praedae Commentarus, ed. Hanaker, 13. 30. See my translaton of the Prolegomena n the appendx to Book III. 31. Ths s the notorous etams daremus clause, so called from the Latn for even f we were to suppose.
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