Grotius on Legal Permissions
Happy New Year! The Spring Term will be starting at Berkeley in a few weeks, and I'm busily getting my seminars ready. I will also be looking forward two trips in the coming months - one to NYU Law School and the other to The Hague.
Permission isn't so much an operation or action of the law, but rather its negation. If we are to think of law (loi) as an obligatory requirement or prohibition, permission can be thought of simply as the release from that obligation when the law has been somehow negated - whether by repeal, partial derogation, or some other procedure. But the point Grotius is making here is that permission (that is, the absence of law) and law are opposites. Grotius seems to anticipate a key point in Austin's Jurisprudence, as well as what modal logicians formally will designate deontic contradiction.
The more interesting feature of this notion of 'positive permission' is in the rest of the passage, in a distinction between what he calls a permission that is 'pleine & absolue' ('plena') and a permission that is 'imparfaite' (or 'minor plena').
What's the difference? In a positive legal permission that is 'plena' and absolute, a person is given the right ('donne droit'; 'jus dat') to do whatever is permitted with complete liberty. Law acts as a protection shielding the bearer of such a legal permission. A more familiar modern legal vocabulary might translate this instead as a 'civil right.'
As I work through this topic of Grotius on rights, I am appreciating how much of a sophisticated legal theorist Grotius was, and not simply a technician narrowly interested in just war and international law. He anticipated ideas usually associated with John Austin, Wesley Newcomb Hohfeld, and Hans Kelsen.
Older generations of Grotius scholarship appreciated these connections and saw Grotius as a contributor to legal science - and not just natural law or the jus gentium. But there is not much, at least in the modern English-language literature, on Grotius' theory of law (although there is now a resurgence of interest in a growing body of excellent work - much of it published by the European publisher, Brill - that has really influenced my own work).
One feature of Grotius' jurisprudence that I found especially useful concerns legal permissions. My original entry into this topic was - as those of you who know me might expect - through Brian Tierney, in what is, I think, perhaps the best modern book on natural law in English. While Tierney begins with the Stoics and works his way through the medieval canonists and scholastic moral theologians, Grotius is presented as a beneficiary of these precursors in articulating his own concept of a permissive law.
Grotius introduces the concept of legal permissions in the first chapter of Law of War and Peace. There are several interesting details that I wanted to record in this journal.
The first is this passage (I'm taking this from Barbeyrac's translation, for a change of pace):
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| Grotius I, 1, §9 |
But Grotius realizes this isn't the only way to think about legal permissions. Sometimes, the law can confer permissions. So it's not entirely accurate to say, as he does earlier, that permission and law are opposites. This point is developed at the end of the chapter when Grotius deals with the status of Mosaic divine positive law:
Permissions can be 'accordée positivement par la Loi' - conferred positively through law. The phrasing is slightly different in Grotius' original Latin, but I think Barbeyrac accurately captures the meaning:
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| Grotius I, 1, §17 |
The more interesting feature of this notion of 'positive permission' is in the rest of the passage, in a distinction between what he calls a permission that is 'pleine & absolue' ('plena') and a permission that is 'imparfaite' (or 'minor plena').
What's the difference? In a positive legal permission that is 'plena' and absolute, a person is given the right ('donne droit'; 'jus dat') to do whatever is permitted with complete liberty. Law acts as a protection shielding the bearer of such a legal permission. A more familiar modern legal vocabulary might translate this instead as a 'civil right.'
The other type of positive permission - an 'imperfect' or 'minor plena' - is in some ways more interesting. What it confers isn't a legal right. What it confers is 'impunity' ('impunité'; 'impunitas') and a right of non-interference.
Two initial thoughts I'll record here, and then I'll save the rest for more polished published work. Is this the first time Grotius uses the phrasing of 'jus dat'? This becomes a crucial part of Grotius' science of right. I think it's a significant point because, in my view, it functions as a kind of heuristic. He uses the same language when he talks about the foundation of the state. Individuals give or confer their rights on someone else, potentially even enslaving themselves. But rights aren't 'things' like commodities that can be bought or sold or gifted or pledged. I'll return to this point later.
The other thought is on 'impunity' - to be free from punishment. Is this sufficient for an act to be regarded 'permissible'? This is a recurring concept throughout Grotius' work, and I will need to say more on this in connection with absolute power and immunities.
