I have been interested in Grotius for nearly two decades now. But for much of that time, my understanding and appreciation of the complexity of Grotius' thought was admittedly superficial and one-sided (focusing mostly on his theory of sovereignty, for which I've received some criticism over the years - but not really worth responding to. I'll say more on this some other time).
I feel I've only really started to appreciate the depth of Grotius' legal and theological reasoning. This was possible, however, only by viewing Grotius, less as a theorist of international law and war, and more as a theorist of ethics and society. The two (i.e., Grotius as a theorist of international law vs. Grotius as a theorist of ethics), I believe, are separable - and in this respect, I agree with the interpretive position adopted in this useful chapter (which ultimately points to Feenstra's work on Grotius). Barbeyrac's claim that Grotius 'broke the ice' of medieval Scholasticism has merit, and it makes possible the rise of a figure like Kant (this trajectory will be explored in Steve Darwall's forthcoming book - which I eagerly await its release).
For myself, there is one work that really put the pieces together, and that is in this book by the late great Brian Tierney. I routinely assign this book to my graduate students - it is, in my view, much better than other available treatments on the modern history of natural law (in large part that is because Tierney speaks and deciphers the 'language' of natural law as it historically developed - in the jus commune of Roman and canon law: a wonderful online source can be found on Ken Pennington's page on medieval legal history).
The key point in Tierney's book is that natural law (and indeed, any legal system made up legal rules and norms) has two basic functions - it is obligatory (by which it can require or prohibit certain actions), but it can also be permissive (by which it can permit and license certain actions as licit). Modern deontic logic has formalized these kinds of claims with the use of 'deontic operators' - what is obligatory is Oφ (= it is obligatory to φ) vs. what is permissible is ~O~φ (= it is not obligatory to not-φ, and similarly, what is prohibited is O~φ (= it is obligatory to not-φ) vs. what is omissible is ~Oφ (= it is not obligatory to φ).
The point is, that laws can oblige and laws can permit. It is the latter point that Tierney explores in his book. But what really caught my attention is how he locates this in Grotius, right in the opening pages of War and Peace.
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Grotius, De Jure Belli ac Pacis (1646) p. 2 (I, 1, §3) |
Grotius declares that he is going to investigate the question whether war [= bellum] could ever be regarded as lawful [= justum]. But to explore that question, we need to know a little bit more about the quality of 'lawfulness' - jus - what makes something justum. (as a side note, the translation of bellum justum as 'just war' doesn't quite fully capture the legal problem that war presents: Grotius is presenting a legal problem - Can war ever be legal? So this is not really a work about 'just war' as modern readers have attempted to characterize this work).
Anyway, back to jus. Readers of Grotius will know that Grotius acknowledges a basic ambiguity in the word, jus (similar to the ambiguity attached to the cognate words in other European legal languages - droit, diritto, derecho, Recht). Partly, Grotius is inspired by a Scholastic approach to this problem. One famous response to this problem (by the Spanish theologian, Francisco Suarez) simply answers that jus is quod justum est = 'that which is lawful.'
This doesn't help us all that much. Grotius, thus, takes a somewhat different approach - essentially applying the Principle of Double-Negation. Instead of defining jus in terms of what it is, maybe we could make some progress by defining it in terms of what it is not. And that is what he does in this passage: Jus sit quod injustum non est = Jus is that which is not unlawful.
Grotius explains later on that the effect of a law is obligation (that is, it activates a legal duty by making something obligatory = Oφ).
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Grotius, De Jure Belli ac Pacis, I, 1, §9 |
Failure to perform such a duty (i.e., breaking the law) is, by definition, unlawful - i.e., injustum. So it is the negation of this situation - when an act is not-unlawful' or non injustum (~Oφ or ~O~φ, as the case may be) - that might be described as quod est justum ('what is lawful'). But the key, for me (and Tierney), is how Grotius chooses to connect the double-negation of non-unlawfulness as jus. In the permissive liberty arising from the absence of legal duty, one enjoys jus - or, as Hohfeld would later call it, a 'privilege' or 'liberty-right.'
This isn't the only right in Grotius' system. He has more to say on this, as I'll explore later on here. But it is a foundational species of right in Grotius' system. When one is neither prohibited from φ-ing or required to φ, it is just the same as saying that one has a 'right' of φ-ing because one is under no duty. Hohfeld later gets the credit for this insight. But the credit really should go (in my view) to Grotius. That is why we should think of Grotius as 'proto-Hohfeldian' - or rather, more properly, Hohfeld as a latter-day Grotius.