Natural Right and Civil Community: The Civil Philosophy of Hugo Grotius

Author(s): Annabel Brett

Source: The Historical Journal, Vol. 45, No. 1 (Mar., 2002), pp. 31-51
Published by: Cambridge University Press
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The Historical Journal, 45, i (2002),

? 2002 Cambridge University Press

pp. 31-51

DOI: Io.o I 7/SooI8246Xoo1002102

Printed in the United Kingdom

NATURAL RIGHT AND CIVIL

COMMUNITY: THE CIVIL
PHILOSOPHY OF HUGO GROTIUS*
ANNABEL

BRETT

Gonvilleand Caius College, Cambridge

ornatural
HugoGrotiushas alwaysbeenviewedas a theoristof eitherinternational
law. However,thesedesignationsobscurethe civicfocus of his work,from his earlyrepublican
treatisesthroughto De iure belli ac pacis. Fromsixteenth-century
humanistandlegal-humanist
Grotiusconstructed
Aristotelianism,
aframeworkof naturalrightwhichenabledhimontheonehand
to locatetheoriginsof thecivilcommunity
in naturalman'sjuridicalcapabilities,butontheotherto
in respectof themoralnormsof naturallaw.
give this 'city' a largemeasureofjuridicalautonomy
In this he divergedsignificantly
scholastichandlingof naturallaw. Grotius
from thecontemporary
his understanding
the
civil
andits rightthroughelaborating
a theory
furtherdeveloped
of
community
notionof reciprocity
butultimatelyusing
of theunityof thecity,basedoriginallyon theAristotelian
a rangeof neo-Stoicsourcesto conceive
as a unitaryreality.
of thecivil community
ABSTRACT.

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 Naturrechtslehrer
or a theorist of natural law. It was not
even
the
last
always so,
during
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
drafted around I604, and the De iurebelliacpacis,
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 considerGrotius as fundamentally a continuator
of scholastic Aristotelian natural law theory,2and those who argue instead that
his work respondsto developments within humanist moral discourseand, 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
is the title given the work by its nineteenth-century editor; although it may not
have been Grotius'sown, I have kept to it, partly for familiarity'ssake and partly to emphasize the
extent to which both works are, indeed, de iure.
2

See mostrecentlyB. Tierney,Theideaof natural

onnatural
lawand
rights:studies
rights,natural

churchlaw, 115o-1625 (Atlanta, GA, I997), ch. 6; see also J. Gordley, Thephilosophicaloriginsof
moderncontractdoctrine(Oxford, 991), ch. 5.

3I

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32

ANNABEL

BRETT

light of these, sketches out a completely new and anti-Aristotelian argument

from nature.3
I would like to abstractfor a moment from the characterizationof Grotius as
a natural law philosopher and try looking at him instead as a civilphilosopher:
that is, from the point of view of what contemporarieswould have called scientia
civilisor '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 firstgoal of Grotius'spolitical inquiry is to analyse the structure
of the city - more specifically, the city understood as a cohesive body or unityof
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,
political Aristotelianismwith its emphasis on the constitution of a
respublica4 and generates the key question for scientiacivilis,of how to construct
such a unity out of the natural plurality and diversity of individuals.5We can
see the young Grotius tackling precisely these issues in what is probably his
in which
earliest piece of sustained political writing, the De republica
emendanda,
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.,
Thelanguages
Europe(Cambridge, 1987), pp. 99- 19; idem, Philosophy
ofpoliticaltheoryin early-modern
andgovernment,
1572-162 (Cambridge, I993), ch. 5. See now also, by the same author, Therightsof
orderfrom Grotiusto Kant (Oxford, I999), which
war andpeace:politicalthoughtand the international
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
(Cambridge,
thought', PoliticalTheory, 3 (1985), pp. 239-65; idem, .Naturallaw andmoralphilosophy
1996), ch. i.
4 I am not
suggesting that these different political languages were mutually exclusive:
Aristotle'sPolitics,for example, could be cited both in a republican context and in connection with
'reason of state'; Althusius's Politicamethodice
digestacontains a long section on the desiderata of
libri VI.
government straight out of Lipsius's Politicorum
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 republicaemendanda,Grotiana,n.s., 5 (I984), especially
paragraphs 43-64.

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CIVIL

PHILOSOPHY

OF HUGO

GROTIUS

33

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 distinct from, even if related to, the position which all postMachiavellian civil philosophers hold, that the city must accommodate
nature.
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 Grotius aims
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,is 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)involves, 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
philosophersalso 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 theologians fundamentally 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 frameworklaid out by the former. See my Liberty,rightandnature:individualrightsin later
scholasticthought(Cambridge, 1997).

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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 iurebelli acpacis 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 Nicomacheanethics,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 honestumand
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 Nicomacheanethics was being explored, starting with Aristotle's
assertion, paradoxical in traditional natural law discourse, that the dikaion
phusikon,natural right, is a subdivision of dikaionpolitikon, 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,n.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
desH. Grotiusauf demGebietedesius
goes back at least as far as Carl von Kaltenborn, Die Vorlaufer
naturaeet gentium,sowiederPolitikim 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.

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(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 another way, 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 essence of everything
which we are going to say."' Connan explicitly juxtaposed Paulus' comments
with Aristotle'saccount ofjustice from the Jicomachean
ethics,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' (adalterumin 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.15The 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, politikondikaion,is 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 honestum
and 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,
As 'the law ofjust and unjust things', it is immutable and is
aequum,honestum).
observed by human beings out of their naturaljustice. But any right established
by human beings beyond this natural right had for its 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
iuriscivilislibri X (Lyons, 1566), Bk I, Ch. 6, n. 2.
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.'
14
13 Aristotle, JVicomachean
ethics,Bk v, I I34a24-6.
Ibid., I I3oa2-3.
15
Ibid., ii34b8ff.
16
The key text here is Hermogenianus, 1. ex hociure= D. I. .5. Connan rejected the triadic
Roman law scheme of ius naturale-iusgentium-iuscivile and equally rejected the quadripartite
scheme (in which the iusgentiumis split into primarium
and secundarium)
elaborated by the medieval
jurists in order to accommodate the contradictions of the Corpusjuriscivilis.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
12

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It is established by human beings out of, and as a limitation upon, their natural
faculty of freedom.17Hence the right which is established by men operated, for
Connan, on an entirely different proximateprinciple from the right which is
natural to them.18 For 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
and 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 Politicsand,
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 frameworkand 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, Commentariorum
iuris
civilis,Bk i, Ch. 6, n. 4.
17
iuriscivilis,Bk I, Ch. 6, n. 7: 'For nature made us just, and she
Connanus, Commentariorum
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 ultimateprinciple- '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 dikaionpolitikon,the iustumpoliticum,obtains, rather
than any such city as the Latins would call a city, e.g. Rome or France. Such cities are civilrather
than politicalin the Greek sense. Connanus, Commentariorum
iuriscivilis,Bk i, Ch. 6, n. 2.
19 Gabriel Vasquez used Connan's authority to argue that the ius gentium,as opposed to theius
naturale,consisted purely in faculty or liberty rather than in precepts, incurring thereby the
disapproval of Francisco Suarez in Book In,q. i8 of De legibus('Does the right of nations command
or prohibit anything, or does it merely allow or permit?').
20 Horst Dreitzel, Protestantischer
undabsoluterStaat (Wiesbaden, I970).
Aristotelismus
21 Sachiko Kusukawa, The transformation
of naturalphilosophy:the case of Philip Melanchthon
22 Dreitzel, Protestantischer
Aristotelismus,
pp. 91-I00.
(Cambridge, 1995)

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37

appeals to utility and to nothing else.23It was remarked that Aristotle himself
had said so explicitly a little further on in the same Book v of the Nicomachean
Aristotle'sPoliticscould also be cited in this connection, for in explaining
ethics.24
humans
are more political than animals (because they have speech (logos)
why
and not merely voice (phone))Aristotle had said that speech is for demonstrating
'the useful and the harmful and so also (hostekai) thejust and the unjust'.25 And
as humanists, finally, they were fond of quoting Horace's assertionin 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 from any Thomist Aristotelian (scholastic) version of
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 discussionof 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, professorof philosophy at Strassburg,and professorof 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 Politicsand the Ethicsas 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
in decem
(Hubert van Giffen), Commentarii
librosethicorumAristotelisad Nicomachum(Frankfurt, I6o8), 404 s.v. rTa 6E KarTaacvvOrKjV: 'He
explains civil rights (iura)with two words, agreement or pact, utility ... For as natural rights are
so civil rights by the utility and common usage
weighed and constituted by uprightness (honestate),
of the citizens.' Van Giffen explicitly engages with Connan's reading, though he is not
entirely in
agreement on the subject of pacts.
25 Aristotle, Politics, I253aI4- 5. Cf. Obertus
in
Giphanius (Hubert van Giffen), Commentarii
politicorum
opusAristotelis(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 Ethicsv. 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,I, 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), Coronavirtutummoralium(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.'

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teachers included the outstanding figure ofJosephJustus Scaliger, and the less
outstanding EverhardBronchorst,professorof civil law - whose commentaries,
especially on the Regulaeiuris,were none the less of some renown.27Grotius was
awarded a doctorate in law at Orleans, a centre of humanistjurisprudence, in
that Grotius had early on
1598. We know from a mention in the De iurepraedae
encountered the work of Connan with its synthesis of Aristotle, Roman law,
and Ciceronian Stoicism, and it is moreover well known that the De iurepraedae
as a whole (especially the twelfth chapter published as Mare liberumin 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 humanistjurisprudenceon Grotius'spart 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 scholarship on Grotius, still
less engagement with humanist commentary on Book v of Aristotle's Ethics.
The Prolegomena to the De iurebelliacpacishas 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-Aristotelianrather 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
ethics
Aristotelian treatment peri tou dikaiouin Book v of the N\icomachean
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
EthicsBook v is, however, far clearerif we look at the Prolegomena to the De iure
praedae,in which marginal referencesto Aristotle are frequent. I want therefore
to begin by considering this earlier work.
27 For Bronchorstand
legal humanism at Leiden, see R. Feenstra and C. J. D. Waal, Seventeenthon the development
of the civil law: a studyof Bronchorst,
centuryLeydenlaw professorsand theirinfluence
Vinniusand Voet(Amsterdam and Oxford, I975).
28 Vazquez's work bears some striking similarities to that of Connan, especially in his insistence
on the natural liberty of mankind and on the city as an artificial human construct which limits that
natural human liberty for the sake of the utility of its subjects. See my Liberty,rightandnature,ch.
5.
ed. L. Perefia and V. Abril, vol. i (Madrid,
29 Cf. Francisco Suirez, De legibusac Deo legislatore,

1973), Bk i, Ch. 2, n. 5.

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The De iurepraedaewas 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
republic and its history. In this work, however, Grotius set his argument for 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 frameworkoperates 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',30Grotius
free, and under his own right (sui
says only that 'God created man autexousion,
iuris),in such a way that the actions of each man and the use of his own things
lies under his own whim and not that of another. 31This free man is in pursuit
of his own utility just like any other created animal. The De iurepraedaeposits
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 ProtestantAristotelian
literature.32Grotius'suse 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 iurepraedaeis 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 from human nature. Those natures begin to divide at
the point where the pursuit of one's own utility demands the friendliness of
30

iuriscivilis,Bk I, Ch. 6, n. 7; cf. above, n. 17.

Connanus, Commentariorum
vol. II.Collotype reproduction of the original MS
Hugo Grotius, De iurepraedaecommentarius,
(Oxford, I950), fo. I0. All translationsfrom 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 these possibilities,Grotius unambiguously intends
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').
31

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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.34Supplying
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 properlyso-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.Justice 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
in
accordance with the second rule of right-'not
be changed, but'-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 Grotiusexcludes any notion of the honestum:
indeed, at chs. 14 and 15 of this work
he is explicitly concerned to show that both the honestumand 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 afunctionof the utile.The radical nature
of this argument is brought out by a comparison with another early work of Grotius, the Parallelon
in which he takes the more standardly Ciceronian position that honestasis
rerumpublicarum,
liberIII, de moribusingenioque
accompanied by utilitas:J. Meerman, ed., Parallelonrerumpublicarum
Batavorum(Haarlem, I80o), p. 73.
Romanorum,
populorum
Athenensium,
37 Grotius, De iurepraedaecommentarius,
fo. o.

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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
must be pursued at theexpenseofthe just, or that thejust reducesto the 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'sanalysis
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.38But the important point
is that these citizens who agree together are alreadycitizens. Aristotle provides
an account of how individuals cometo 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
juridicaldynamic, 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 pursueshis aim. For
the scholastic Aristotelians, it is a right,imbued 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
justumand generative of justum or jus in itself.4 Pact, the moment of this
generation, represents not only a rapprochement between the justumand the
utile,it 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 iurepraedaeappears muted by the time we reach the
Prolegomena to the De iurebelli acpacis of I625. This begins with an explicit
denial of the premise of the earlier work, that sociability and 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 ProtestantAristotelian Arnisaeus to deny that

the civitas,the city, and the respublicaare the same thing: see Henning Arnisaeus, De republicaseu
relectionis
politicaelibriII (Frankfurt, I615), Bk I, Ch. 5, Section iii.
40 I have argued for this distinction in my Liberty,
rightandnature,chs. 4-6, in which I distinguish
between the scholastic Aristotelianjus and the liberafacultas of the legal humanist tradition, as
deployed by Fernando Vazquez de Menchaca, Grotius'sdebt to whom is well known. Suarez is a
more complicated case, defining ius as he does as a dominium
and a liberty; nevertheless I 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., Philosophyin thesixteenthandseventeenth
centuriev:conv,-'ationswithAristotle(Aldershot, 1999), pp. 146-68.

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Grotius distinguishes humans from animals at the very base of the juridical
structureprecisely by the capacity for recognizing alterity. Unlike animals and
children, adult human beings have a natural and primaryregardfor the other's
good.41 The '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',43by 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 properly called by such a name. 44Here 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 iurepraedae,however, political
right accompanies human nature per se, and not in pursuit of utility. The
reason or intellect which marksthis human nature is not the tamer of passions,
that we find in the De iurepraedae,
but rather a recognizer of likeness.
imperatrix,
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.'45Natural right in the sense of
equity is thus the governing right of humanity. The honestumwhich was
conspicuously absent from the Prolegomena to the De iurepraedaeis 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 arisingfrom consent'46or pacts,just as in the De iurepraedae.
Grotius
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 iurebelliacpacis.
42 Hugo Grotius, De iurebelli 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 representsa real change from the
earlier edition).
44 Ibid.: 'Haec vero ... societatis custodia humano intellectui conveniens, fons est ejus juris
45 Ibid.
quod proprie tali nomine appellatur.'
46 Ibid.: 'civilis vero
juris mater est ipsa ex consensu obligatio'.

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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,thinks of the city or civil commonwealth as
something more than just a cluster of people mutually sharing the benefits of
etparendi,47
civility. The city or commonwealth is unified as an ordoimperandi
which
has
to
the
on
its
and
that right
citizens;
something
right impose right
in
terms
outside
the
itself. Meanwhile,
requiresjustification
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 distinguishesGrotius'saccount 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
to the utile
is strongerthan the rapprochementbetween thejustumand the utilethat we find
in the De iurepraedae.In that work Grotius merely had to show that pact was
the way in which individual pursuit of utility might not violate the principle of
and the
alterity. Here, working with Connan's disjunction between the honestum
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
Aristotelismus,
p. 93; and cf. Kusukawa, Transformation
of naturalphilosophy,pp. 69-71. For Grotius on politia,
see below n. 70.
48 Grotius, De iurebelliacpacis (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:iuri 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'.

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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, as opposed to the De iurepraedae, the spheres of
the politikon and of the utile do not coincide. The primary element ofpolitikon is
what is naturally honest; utility is 'added'. As for Connan, utility is coupled
with freedom in the sense of freedom to will one thing or another. In the social
context, this comes out as the freedom to oblige oneself; without this freedom,
utility cannot be pursued in a social context. As in the case of Connan, this
freedom is purely negative, there to be given up according to the demands of
utility and only according to the demands of utility. It is disconnected in
principle from natural right.
In the light of this, we can now turn to Grotius's account of right in the first
chapter of Book I of the De iure belli ac pacis. The primary category of right, for
Grotius, is the 'what is just', the dikaion, the iustum of the entire Aristotelian
tradition, whether in its scholastic or humanist variant. But Grotius goes on to
say, very un-scholastically, that that which is right orjust is fundamentally that
which is not not-right or unjust. So what is not-right or unjust? 'The unjust is
what is repugnant to the society of rationals.'51 Thus, as for Connan again,
right in its foundational sense is that which any political life requires,
fundamentally the non-assimilation of the other and the other's good to oneself
and one's own good. Beyond that there is only the free play of utility. And in
accordance with this Grotius goes on to define right in its sense as a quality of
a person as a free faculty.52 The right of the individual, or liberty, is an original
capital to be used up in the pursuit of one's own utility. It has nothing directly
to do with the principles of society except in the sense that it must be
compatible with them, and its conclusions are not derivations from natural
right.
50

iuriscivilis,Bk I, Ch. 6, n.
Connanus, Commentariorum

51 Grotius, De iurebelliacpacis (1625), Bk I, Ch. I, n. 3.

12.
52

Ibid., n. 4 and n. 5.

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III
I now want to move on to consider Grotius's understanding, again in both
Prolegomena, of the city: specifically, the question of the unityof the city or
commonwealth. Unity is the focus of Aristotle's critique of Plato in Book ii of
the Politics,where he argues that the ideal city of Plato's Republic,which intends
to make all, as far as possible, one, destroys the rationale of the city which is
precisely a community of diverse individuals who are not part of each other but
other to one other. As we have seen, for Aristotle alterity, not unity, is the
principle of the city.53 Grotius, while adopting the Aristotelian understanding
of political justice which is connected with alterity, nevertheless accepts the
Platonic insistence that the city should be, as far as possible, one.54 The
references concerning unity are Platonist in the Prolegomena to the De iure
praedae,but Stoic (for reasons which I hope will become clear) in Chapter 9 of
Book II of the De lure belli ac pacis. The outcome is that in both works, though
differently in each, the city is a place in which alterity is ultimately transcended
in unity.
Let us again look first at the Prolegomena to the De iurepraedae,in which the
utility thesis is unmoderated: sociability is governed by utility, justice is the
utility-based necessity of protecting the other's utility. This principle gives rise
to two laws which immediately implement it: do not hurt another, do not take
for yourself what another has already taken for himself. Men enter into human
society 'with this confidence', says Grotius. The result of such confidence is ta
sumbolaia,contracts or covenants, 'that is, mutual actions and passions, and the
mingling (mistura) of the good and the bad, of that which is one's own and that
which is another's'.55 The very first entry into human society, therefore, and
the primary laws that govern it, enable the individual to break out of the
isolated pursuit of utility and to open up to the other, so that one's own cannot
be wholly distinguished from the other's. That is, the very first level of human
society implies a reconfiguration of the natural unit, the individual.
A further implication of the social justice which protects the other's good,
53 Compare the near-contemporarycommentary on Politics II by Hubert van Giffen: 'Aristotle
so far agrees with Plato or Socrates, that the greatest good of the city is concord: in that citizens
who are mutually affectionate and in concord are less agitated, or are less prone to, sedition which
is the certain plague of cities ... and he agrees with this too, that by concord and friendshipcitizens
are most coupled with and conjoined with each other, and become as if one body: for this is the
function or office of friendship and love, from two or more to make one, as Aristophanes elegantly
... In these two things, therefore,Aristotle agrees with Plato; but in
expounds in Plato's Symposium
this third point- that therefore the city should be one single thing- not at all.' Giphanius,
Commentarii
in politicorum
opusAristotelis,p. 165.
54
Compare Grotius's approving remark in De antiquitateReipublicaeBatavicae(I6Io) that the
'admirable harmony' of the early Batavian republic resembled that of Plato's 'praised
commonwealth, in which the best rule with the agreement of the mass': De antiquitate
Reipublicae
Batavicaelibersingularis,in Respublica
Hollandiaeet urbes(Leiden, I630), Ch. 2, p. 38.
55 Grotius, De iurepraedae
fo. 7:' Hac velut fiducia inita est Hominum societas: hinc
commentarius,
Tra vpupo;Aala,hoc est mutuae actiones passionesque natae sunt, et boni malique, sui et alieni
mistura.'

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which gives the confidence to enter into relations with others, is that one's own
good should not be at the expense of the other. And so the same principle
requirestwo furtherlaws to complete its effect: that wrongdoing is to be righted
and that good deeds are to be repaid. This is the Aristotelian principle of
'what the Scholastics call restitution'. But Grotius
reciprocity, to antipeponthos,
here merges the Aristotelian perspective on the other's good with a Platonic
perspective on unity. In the realm of nature, he says, that is most good, which
is most one, or Unity. Unity means either identity or equivalence; where
identity cannot be had, equivalence must take its place.56 The Platonic
referencesare to the Gorgiasin which Plato calls the administrator of justice a
geometer in his capacity as reducing all things to equality, and to Plutarch's
in the Latin).57What Grotius seems to be saying is that
(Convivium
Symposium
individuals at this level are not one, that is, they are not one thing. They are not
even the same as each other. However, they can be equivalent;and this is the
closest we can get to unity among different human beings within the realm of
nature. Thus, the first two laws following the will of all men begin to dissolve
the fragmented world of individuals and open them to each other: the second
two laws allow them to cement that mutuality in mutual equality. This mutual
equality is the unity of natural human society.
Within the unity of natural human society and the mutual transactions it
makes possible, each man is himself the measure of his own right. This is, as we
have seen, the third rule: that which each man has signified that he wills, that
is right with respect to him. The trouble with human society is that some people
do not keep to what they have signified that they will (that is, their agreements
or pacts) and they get away with it. Hence the need to create some kind of lesser
society which will defend the rights of individuals more aptly. This necessary
civil order has the pleasure of God and the consent of almost all men: but
neither of these is sufficient to make someone a citizen where he had not been
before, that is, as Grotius puts it, to 'integrate himself into the body of the
commonwealth'.58 And this is because, as Grotius has insisted, within the
juridical delimitation of the common will of mankind it is the individual who
determines what is right for him. Hence the true origins of cities lie in pacts or
agreements or the juridical self-determinationof individual men.
The consensus of men that generates the city yields two further laws: the
now-constituted citizens should not only not hurt, but positively defend, both
other citizens and the city; and they should not only not expropriate, but
rather help to sustain, both other citizens and the city. 'And so these laws have
regard to the common good, but not in the sense of the common good of diverse
individuals, as with the laws of the previous order, but in the sense of the
common good of one body, and thus of their own.'59So, having moved from the
56

Ibid., fo. 8.
57 Plutarch, Ethica, sive moralia: interpreteHermanno Cruserio (Basel, 1573), fos. 630-I:

conviviales,lib. 8, q.

PlatoDeumperpetuodixeritgeometren
agere).
(Quomodo

58 Grotius, De iure praedae commentarius,fo. i i.

59 Ibid.

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society of humanity to the subsequent social determination, which is civil

society, we again find a unity dictated by utility. 'Although thereforethe order
of laws posited first and thereafter may have shown that one's own good has
priority over the other's ... nevertheless where it is a question of the good of
individuals and the good of all, of whichbotharerightlycalledone'sowngood,in that
allform a oneof somesort,the good of all is to be preferred. 60 The principle of
utility, one's own good, holds, but what is one's own is now altered.
Hence, the order of laws follows the order of goods and the progressof unity:
one's own good, governed by the laws which allow one to take what one needs;
the other's good, governed by the laws which dictate that one does not take
what the other needs; the equalization of each other's good, which is the closest
we can get to unity in the diversity of men, governed by the laws of reciprocity;
and finally the common good, which is the good of individuals as forming a real
unity, and is therefore their own good. This good is governed by the laws of
civic mutuality. Thus individual human beings, in consenting to form a city,
create a new unity out of diversity, a new good, and this new unity and this new
good can in turn determine their right as citizens.61
We can see, therefore, that the Prolegomena to the De iure praedae
fundamentally concerns unity and diversity, self and other. It is about the
classic Aristotelian politics of community in the sense of living with others; and
it is about finding a solution to those issues in finding a new unity, a new one,
in the body of the commonwealth, the good of which is the individual citizen's
own good. In the commonwealth, the individual's relationswith a certain body
of other people are ineradicably altered, and thereforehis 'otherness' towards
them is changed. The voluntarist structuremeans that this can only be effected
by the individual citizen himself. But nevertheless, the final result goes beyond
the individual in pursuit of his own good. The language of the creation of the
city is of 'joining oneself to a body' -of integration into a greater whole.
Grotius avoids any suggestion of loss for the individual in this process, his focus
being entirely on what we gain from being part of something larger than
ourselves. In parallel, Grotius avoids any language of subjection: the city is a
self-governing body which, for convenience, appoints officersor magistratesto
administer itself.62Thus the ultimate outcome of the individualistic argument
from natural rights is none other than the classical republic, the civic mutuality
in which love of self is transcended.
In the De iurebelliacpacis,we find a quite different account. As we have seen,
in this work, as not in the De iurepraedae,Grotius does acknowledge a natural
right, a principle of honesty and the good, which is born of the right reason
inherent in human nature itself. However, as we have also seen, human nature
60

Ibid., my italics.

Accordingly, the fourth rule is that 'Whatever the commonwealth shall have signified that it
wills, that is right among the citizens taken as a whole': ibid., fo. I I.
62
Again it is interesting to compare this passage with the sketch of the origins and original
structure of the Batavian republic in De antiquitateReipublicae
Batavicae,Ch. 2. None the less, this
work already contains a hint of Grotius's later thoughts: see below, n. 71.
61

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does not exist without utility, because we are born needy. And it is this
utility
which gives rise to civil right: 'utility was the occasion of civil
right: for that
association or subjection of which we speak was constituted for the sake of a
certain utility'. That little but crucial phrase, 'or subjection', is absent from the
Prolegomena to the De lurepraedae. Why?
One reason might be contextual. By this time Grotius had been forced to flee
Holland for Paris and, one might argue, his perspective had
similarly extended
beyond the Dutch republic to an international order which included not only
republics but kingdoms, not only mutual associations but states of subjection.
Nevertheless, I suggest that the fundamental answer from a legal-philosophical
point of view lies in the changed relationship Grotius sees between justice,
honesty, and utility. Honesty figures in this work as inherent in natural human
society. But it is not a motive force in a strong sense. Although Grotius says that
we would cultivate society even if we stood in need of nothing, he also says that
God implanted neediness in us the better to drive us into cultivating such
society. Moreover, the only motive force for civil society is suggested to be
utility. That is, there is no incentive for anything on top of natural human
sociability except utility. There is therefore a discontinuity in the later work
which we do not find in the earlier. In the De iurepraedae, self-love is coupled
with a consequent other-love, and these 'loves', which are said to be 'twin',
ground both human society and civil society. There is no discontinuity in
motivation between the isolated unit, the unity of human society, and the unity
of civil society. All operate on the principle that in nature, what is most one, is
best, a principle that involves both self-love and other-love. Unity, yielding
mutuality, lies at the base of the political theory of the De iurepraedae.In the De
iure belli ac pacis, by contrast, there is a discontinuity in dynamic between
human society and civil society. Other-love together with an 'added' self-love
yield human society: only utility yields civil society. And utility willjustify not
just mutual association, unity in alterity, and consequently the mutual
determination of right, but also subjection. Utility can justify just about
anything, for the individual is the measure of his own utility just as he is the
determinant of his own right. And it is in precisely these terms that Grotius
justified the submission of a people to an absolute sovereign.63
Does this mean that such a state - of subjection - is not a proper unity? No.
Albeit utility - the pursuit of one's own good - may determine the existence of
the commonwealth and the precise form of that commonwealth, nevertheless
the commonwealth so constituted forms a 'one' just as the city of the De iure
praedae.But it is no longer a unity of alterity. Rather, it is a unity in diversity
through the having of a single 'disposition' (hexis) or' spirit' (spiritus).64Grotius
63

Grotius, De iurebelli acpacis, Bk I, Ch. 5.

64 Ibid., Bk II, Ch. 9, 'Quando imperia vel dominia desinunt.' The term hexisfigures in the

in which Grotiusjustifies a
introductory letter to the third book of the Parallelonrerumpublicarum,
comparison between peoples (rather than simply between individuals) through positing that a
whole people can have a single disposition. Here, however, it is thought of as a 'common quality'
or ethos, rather than a force of unity or cohesion in disparate bodies.

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which is the principle or

here appeals to the Stoic notion of the pneumahektikon
force of cohesion both in the world as a whole and in individual bodies within
it,65and has a variety of referencesin the notes to make clear what he means:
'Disposition is the spirit which holds together the body' ;66'disposition is the
spirit returning on itself'.67 Grotius stresses that when he uses 'spirit' and
'disposition' of the body made up of discrete individuals, he is using the term
analogically, in that in the Stoic sources, disposition and spirit are what unify
single bodies like stone or wood. Nevertheless he suggests that his analogical
usage is justified by the fact that we analogically call the people a body.68
The diversity of the city is therefore unified through the spirit of the Stoic
tradition which circles back on itself. 'This spirit or disposition in the people is
the full and complete society of civil life, the primary consequence of which is
supreme power, the bond through which the commonwealth coheres, the vital
breath'-it is the same word, spiritus-'which so many thousands draw, as
Seneca says'.69 The notes read: 'This spirit or disposition in the people is "the
constitution, the life of the city": Aristotle, Politics Book iv, Chapter 2.'70
65

For a brief account of pneumain Stoic thought, see A. A. Long, Hellenisticphilosophy:Stoics,

EpicureansandSceptics(2nd edn, London 1973), pp. 152-8.
66 Grotius, De iurebelliacpacis (I646), Annot. ad lib. in, Cap. ix, quoting Seneca, Ep. Io2.
67
Ibid., from [Ps.-]Philo, De mundo;in this text, hexisis the principle of cohesion of inanimate
objects alone, like stone or wood, whereas animate bodies are held together bypsycheorpsychelogike:
[Ps.-]Philo, De mundo,in Philonis Iudaei, Operaexegeticain librosMosis, ed. Adrian Turnebe and
David Hoeschel (Narbonne, I613), 891. See also A. Laurentin, Le Pneumadansla doctrine
dePhilon
(Louvain, 95 ), pp. 403 -7.
68 It is worth remarking that this discussionof the sense in which the city is a body had already
been brought from the Roman law into commentary on Book I of the Politicsby van Giffen: 'One
should know that some bodies are constituted out of conjoined parts, some out of disjoined: of the
first type are animals - a man, a horse, etc. Of the second type are a legion or squadron, a flock,
a people, a city ... The jurists, more subtly, posit three types of body: one, conjoined, as is a man,
horse, table, piece of wood, a stone etc., which is clearly contained with one spirit, as they say after
the Stoic fashion ... ; another, they call auvrlJppEvov,as if to say "jointed together " or "conjointed",
and not so integrally conjoined as the first: like a ship, an armoury, a house: Aristotle embraced
both these types in one category. A third type is disjoined: like a flock etc. See 1.dererummixturaff.
De usurpatione
et usucapione.'
in politicorum
Giphanius, Commentarii
opusAristotelis,p. 54.
69 The referenceis to Seneca, De dementia,Bk I, Ch. 5, one of the most
widely cited of all classical
texts in contemporary political literature. It may be noted that neither Calvin nor Lipsius had
interpreted spiritusvitalisas the Stoic pneumahektikonin their notes to the text: Calvin has quite
extensive annotations from the passage but they are exclusively to the medical tradition and refer
to the breath or spirit which animates living things.
70 Grotius, De iurebelliacpacis (1646), Annot. ad lib. II, Cap. ix: 'Is autem spiritus sive E6ISin
populo] l 1Totl-rTEa,3posTroXecoSAr. Pol. IV, ii.' Compare van Giffen, who connects 'politia' (i.e.
Etaor respublica)
with 'status': 'the health of the civil society, and this is the politia or state
wTOArr
(status)of the city: for the politiais as if the soul of a civil society (Tatis, EUTrala or even jyuXf it is
called by Isocrates in the Areopagiticus)':Giphanius, Commentarii
in politicorum
opusAristotelis,pp.
at De republica,
Bk in, Ch.
308-9. Compare also Arnisaeus'sdiscussion of the nature of the respublica
i, Section i: 'the Republic is superinduced upon a people seeking the fortunate life, whence it is
called the life of the city by Aristotle, Politics,iv, ch. I I, and Isocratessays: " everypoliteiais the soul
of the city ", in his Panathenaic
and Areopagiticus.'
Althoughpoliticilike Arnisaeusmay be customarily
distinguished (and may indeed have distinguished themselves) from writers within the natural law
tradition, it is part of my point to suggest that the respublicaor state which is the end of their
arguments is, ultimately, very similarly conceived.

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Unity, then, is the prime characteristicof the city of the De iurebelliacpacis,just

as it is in the De iurepraedae,even though differently constituted. Within this
unity, the individual, even though a discrete entity, is nevertheless bound or
connected to others. Without unity, when the city loses the supreme power
which is its spirit, the civic world dissolves and fragments again into the
plurality of its natural constituents.71
IV
It is instructive to turn from Grotius's texts to those of his most famous and
notorious successor in the Protestant natural law tradition, Thomas Hobbes.
Many of the best recent interpretations of Hobbes's political philosophy have
concentrated on Hobbes's work as a refiguring, rather than a denial, of the
classical categories of the citizen, of civic virtue, and of the city. Hobbes's
understanding of the civil covenant, clearest in Leviathan,is aimed at creating
a true unity out of a diverse multitude: 'For it is the Unityof the Representer,
not the Unityof the Represented, that maketh the person One... And Unity,
cannot otherwise be understood in Multitude.'72 'This is more than Consent,
or Concord; it is a reall Unitie of them all. '7 The realunity of the Hobbesian
city in one person personated by the sovereign surpasses the unity of the
classical republic, based on the concordia
ordinum,to create a new body, a true
'one'. We need to take Hobbes seriously, just as we need to take Grotius
seriously,when he speaksof the realityof the resultant unity. The preoccupation
with the real unity and the coherence of the city marks Grotius's enterprise as
well. It is truly a civil philosophy, and this is its link with Aristotelian ethics,
which Protestant humanist contemporariesthemselves saw as a civil and not a
natural philosophy. Hobbes's overt anti-Aristotelian polemic should not be
read back into Grotius who himself tells us that 'Aristotle is the prince of
philosophers.'74But this does not mean that we should assimilate Grotius to
Suarez and the scholastic Aristotelians. Writing his notes on Suarez in the late
eighteenth century, the Sicilian Jesuit Guarino prefaced the work with a brief
71 The dedicatory epistle of De antiquitate
Batavicae,addressedto the States of Holland
Reipublicae
and West Friesland and promising to defend 'your power, your rights and your majesty', already
contains a hint of this argument: 'And if anyone should diligently consider all this, he will quickly
find, not that the republic which now exists has newly come into being amongst us, but that the
one which previously existed appears more clearly. For just as a house can stay standing, even if
you change some of its parts; but if you take away its foundations, it cannot; just so, a republic is
not immediately different if the names and duties of its magistrates have changed, so long as the
supremeforce of command and the primary power, and the mind - so to speak - which moves and
contains the whole body, stays one and the same.'
72 Thomas Hobbes, Leviathan,ed. R. Tuck (Cambridge, I991), p. 114.
73 Ibid.,
p. I20.
74 Grotius, De iure belli ac pacis (1625), Prolegomena, sig. i ii r: 'Inter philosophos merito
principem obtinet locum Aristoteles, sive tractandi ordinem, sive distinguendi acumen, sive
rationum pondera consideres. Utinam tantum principatus ille ab aliquot hinc saeculis non in
tyrannidem abijsset, ita ut veritas cui Aristoteles fidelem navavit operam, nulla iam re magis
opprimatur quam Aristotelis nomine.'

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history of moral philosophy. Under the section on Greek philosophers, Guarino

attacked what he saw as the Protestant caricature of Aristotle as a civil
philosopher rather than a natural moral philosopher. Those Greek
philosophers who truly deserved to be counted as such were the Cynics and the
Pyrrhonists, who
admitted certain formsof morality, but only those which civil laws lay down. Pestiferous
teachings, which Hobbes, Spinoza, Toland and other writers from Holland and
England have resuscitated. Referring the principles of honest life and foundations of
religion to a state purely civil; whence they demand the prudence, or rather simulation,
of accommodating oneself to the culture of civil society. Which is clear in that book,
L'espritdeslois.75
I suggest that certain Protestant humanists, at least, would have defended in
their turn the inclusion of Aristotle in the list of'civil' philosophers; and that
we should add Grotius to the list of writers from Holland and England who
were not natural law philosophers at all from a Suarezian point of view.

75 Giovanni
Guarini, Juris naturaeetgentiumprincipiaet officia,ad christianae
doctrinae
regulamexacta
et explicata.AuctoreSuarez,cumnotisGuariniPanormitani,in J.-P. Migne, Theologiaecursuscompletus
(Paris 1839 - 45), vol. xv: Dissertatiopraeliminaris,
p. 378.

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