History Research Dissertation

The impact of Hugo Grotius' concept of

Natural Law on his social contract theory

APRIL 25TH 2014

PORTRAIT BY MICHIEL JANSZ VAN MIEREVELT, 1631

BY: ROMAIN F. L. GIRARD

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Table of contents
Introduction 3

Grotian Method of Inquiry 10

Natural Law 15

Historical context 15

Situating Natural Law in Grotian Thought 20

Justice and the expression of natural rights 34

Freedom and pre-determinism in Grotian Thought 38

Materializing morality 43

Recapitulation 44

Theory of property 45

Historical Context 46

Property in Nature as common property 47

‘Occupation’ as the birth of private property 51

Different defences for different property rights 56

Concluding remarks 61

Appendix 63

Rules 63

Laws 64

Bibliography: 65

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Introduction
Right, as the world goes, is only in question
between equals in power, while the strong do
what they can and the weak suffer what they
must.
– Thucydides 1

T
hroughout the ages, countless human lives have been lost for
the sake of what is ‘right’, while countless others have had
their lives dictated by this ideal. It is plainly understandable
that moral philosophers have strived to find an answer to the
question: what is ‘right’? Is the idea nothing more than the will of a
man exerted over another man – and therefore subjective to every will
– or can it be streamlined into a single universal truth? More
importantly perhaps, if the latter were to be true, could man ever
come to know of this truth? Thucydides, for one, would disagree with
the idea of a universal truth of what is ‘right’, or at least he would
disagree with the contention that man could ever know such truth.
This view is shared by those commonly called ‘moral sceptics’ who
consider that the idea of ‘right’ is merely the manifestation of man’s
self-interest. Thus, if human beings are primarily self-interested, there
are no common grounds on which a universal system of rights can be
conceived. Moreover, how could such a system be responsive to
differences in customs and cultures, and how would it cope with the

1Thucydides. The History of the Peloponnesian War. Trans. Richard Crawley, New
York: Seven Treasures Publications, 2009, [Book Five, Chapter XVII], p. 195.
There is some reserve as to whether this expressly reflects Thucydides’ own
view on the matter, or simply that of the Athenian delegates in Menos reported
by Thucydides.

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challenge of guaranteeing perennial association, freedom and justice?

In contrast, faced with the onerous task of solving one of monoliths of
moral philosophy, are those who believe in a universal system of
moral rights. At this stage, it ought to be noted that the divergent
approaches to solving the problem posed by moral sceptics have
resulted in a nameless and amorphous school of thought; though it
might tentatively be termed as the school of ‘metaphysical ethics’.
Hugo Grotius, in particular, comes impressively close to articulating
such a system by arguing for the existence of a materialist social
contract sourced in the metaphysical concept of Natural Law. Given
this achievement, it seems fair to ask: how did Natural Law influence
the formulation of the Grotian social contract? 2

Born in Delft (Holland) to an aristocratic family, Hugo Grotius

(1583-1645) led a colourful life. He escaped prison, survived a
shipwreck, evaded the stockades, practiced law and counselled royals,
lived in exile, defended religious tolerance, governed the city of
Rotterdam, reformed moral philosophy, and christened the first
modern system of ‘international law’, which he termed the Law of
Nations. Although his greatest achievement would be posthumous, his
intellectual legacy being one of the most discrete, and yet thoroughly
entrenched, from the enlightenment to today; a token of prestige
given only to those whose thinking can truly be deemed influential.
Indeed, whether they expressly agreed with him, as did Samuel von
Pufendorf (1632-1694), tacitly agreed, as did Thomas Hobbes (1588-

2 The usage of terms such as ‘Natural Law’ and ‘social contract’ is not unique to
Grotius and differs between thinkers. Natural Law usually refers to metaphysical
rules that apply universally and has been used profusely by early modern
thinkers such as Grotius, Pufendorf, Hobbes or Locke; though each described its
origin and aim differently. A social contract refers to an agreement between
individual interacting agents, with no enforcing authority superior to that of the
individual agents involved therein. It serves mainly as a point of contrast to
‘institutionalised’ contracts as these are subject to a higher enforcement
authority: such as magistrates.

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1678), or outrightly disagreed, as did Jean-Jacques Rousseau (1712-

1778), most moral philosophers from the 17th century onwards have
had to acknowledge the contributions of Grotian theory to their own
philosophies. While some scholars, in their own right, might wish to
reprimand this dithyrambic pronunciation of Grotius’ influence, this
will be defended in its own time below. But before we can
conscientiously dwell on the prologue of Grotian thought, it is, as in all
histories, resolutely more pedagogical to start with the epilogue.

After a coup d’état in 1618 by Maurice of Nassau, Prince of

Orange, Grotius was sentenced to life imprisonment in a remote castle
of the Low Countries. In 1621, Grotius’ wife successfully engineered
her husband’s escape by hiding him in a book trunk. Thereafter, he
would spend the remainder of his years between Paris and Hamburg,
as the Swedish Ambassador to Paris during the Thirty Year War; this
was an extremely demanding appointment given that Sweden was one
of the great powers of the seventeenth century. 3 It is during those
turbulent years that Grotius would write his magnum opus DE IURE
B ELLI AC P ACIS (1625, thereafter, DE IURE B ELLI ). Like his contemporary
René Descartes, he died serving Queen Kristina of Sweden. His last
words – though perhaps apocryphal – were: ‘By attempting many
things, I have accomplished nothing.’ 4

Despite the truthfulness of his premise, his self-assessment is

surely too harsh; Hugo Grotius achieved the remarkable feat of
streamlining over two millennia of intellectual thought into the first
early modern social contract theory. Unfortunately, there has seldom

3 Jon Miller, "Hugo Grotius", The Stanford Encyclopedia of Philosophy (Spring

2014 Edition), Edward N. Zalta (ed.), [Online] Available at:
http://plato.stanford.edu/archives/spr2014/entries/grotius
4 Ibid.

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been an attempt to answer how Grotius managed to conceive this

system, in particular, how Natural Law informed Grotius’ formulation
of his social contract theory.

Many aspects of the roots of Grotian Natural Law have been

elucidated by expert analysis. Yet, there has been much debate
regarding particular facets of Grotian thought. A great field of debate
has been the Aristotelian proclivities, or lack thereof, within Grotian
theory. Specifically, did Grotius upstage Aristotle’s methodological and
epistemological division between ‘practical’ and ‘theoretical’ sciences
through his attempt to construct a ‘science of ethics’? Annabel Brett
argues against this and points to Grotius’ humanist discourse (a school
of thought faithful to the Aristotelian methodology) as her primary
evidence. 5 In contrast, Knud Haakonssen argues that Grotius’ most
singular characteristic is to have upstaged this division by rejecting
the sceptical notion of morality. 6 However, perhaps through excess of
scholarly zeal, this debate omits the possibility that Grotius might not
reasonably fit into either of these proposed categories, his socio-
historical circumstances demanding that he transcend the typical
boundaries set by both the scholastics and the humanists, thus
rendering the debate, though certainly entertaining and enlightening,
ultimately sterile. Another field of debate that proves closer to
addressing the true tensions within Grotian thought has been the
characterisation of Natural Law as either separate or analogous to
Divine Law. Fornier and Perelman both argue that the shift to from
Divine Law Natural Law signified Grotius’ withdrawal from traditional
scholasticism (a school of thought striving for largely theistic

5 Annabel Brett. "Natural Right and Civil Community: The Civil Philosophy of
Hugo Grotius." The Historical Journal 45.1 (2002), pp. 37-8.
6 Knud Haakonssen. "Hugo Grotius and the History of Political Thought." Political

Theory 13.2 (1985), pp. 239-40.

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philosophies). 7 Taking the opposite stance, Joan Tooke argues that not
only was Grotius too heavily influenced by canon law to veer away
from religious teachings but moreover, and notwithstanding such
historical contingencies, a careful analysis of Natural Law’s
mechanism reveals that it is strongly subservient to Divine Law. Thus,
Tooke concludes, it is a concept void of any distinct meaning. 8 Tooke’s
argument has the merit of seeking the cause and effect of natural law;
not to take this concept as it is but to deconstruct its constitutive
building blocks to find their source. However, as Richard Tuck would
postulate, Tooke’s argument fails in that it assumes, at best,
questionable premises – not to say fallacies – regarding the content of
Divine Law, which is, in a comical twist of fate, what Grotius was
trying to avoid. 9 Indeed, Tooke’s shortcomings seem to be shared
with much of the literature on the Grotius: a failure to appreciate the
intent behind his doctrine.

Two scholars in particular seem to deserve greater praise for

their success in explaining the genesis of Grotius’s theoretical
formulations. Although they did so through separate analysis, Stephen
Buckle and Marcelo de Araujo 10 construct holistic understandings of
Grotius’ theory of Natural Law and offer a rather systematic exegesis
of its particularities. Their research has been pivotal to the depiction
of Grotian thought in this book as they have given sufficient grounds
for the interaction between Grotius’ metaphysical Natural Law and the

7 Paul Foriers, and Cham Perelman. "Natural Law and Natural Rights: Historical
Originis." Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas. Ed.
Philip P. Wiener. Vol. 3. New York: Charles Scribner's Sons, 1973, p. 1175.
8 Joan D. Tooke, and E. L. Mascall. The Just War in Aquinas and Grotius. London:

S.P.C.K, 1965.
9 Richard Tuck. The Rights of War and Peace: Political Thought and International

Ordern from Grotius to Kant. New York: Oxford UP, 1999.

10 Stephen Buckle. Natural Law and the Theory of Property: Grotius to Hume.

Oxford: Clarendon, 1991; Marcelo de Araujo,. "Hugo Grotius, Contractualism, and

the Concept of Private Property: An Institutionalist Interpretation." History of
Philosophy Quaterly 26.4 (2009): 353-71.

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materialistic social contract to be consolidated into a singular thesis:

the Grotian social contract is incepted by Natural Law as a result of
non-institutionalized private property rights.

With this epilogue now over, the present course will be to

demonstrate this thesis. To do so, the dissertation will analyse in
detail the principles of Grotian Natural Law with the aim of
conciliating many ambiguities and contradictions within Grotian
theory. The investigation will be divided into three main parts. The
first lays the foundations necessary for the present investigation by
explaining the peculiarities proper to Grotius’ method of inquiry.
Although some have criticized Grotius for his flawed a posteriori
method of inquiry, on the contrary, he also used a rich and thoughtful
a priori system. This method will be contextualized historically and
demonstrated to be the linchpin of his argumentation.

The second part disentangles what is to be understood by

‘Natural Law’. The concept itself has been relevant since Antiquity,
significantly altered by the Scholastics, and revived by Grotius’
peculiar combination of theological and un-theistic axioms. Therefore,
this part will show how Grotius’ definition of Natural Law serves as
the necessary tool to create an almost secular system of moral rights.
Additionally, it will endeavour to illuminate the connections with
Stoicism, Scepticism and other types of ‘law’ related to his oeuvre,
such as Divine Law and the Law of Nations. Paving the way for
subsequent analysis, this second part also shows how this moral
system is contingent on underlying metaphysical norms regarding
justice, freedom, utility, teleology, and theology. It explains how
Grotius not only fabricated the paradigm of the ‘selfishly social’ being
to resolve typical problems regarding consent in social contract
theory, but also how he introduced the concept of the ‘suum’ to
encompass his system of rights.

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The third part shows how this moral system of rights supports
the creation of private property through the ‘extension of the suum’,
and how it enables its defence through the precepts of Natural Law. By
looking at the practical application of his theory of right, it
demonstrates that Grotius’ ‘state of nature’ is not an ahistorical tool,
but a thoroughly historical construct which mimics human experience.
This part concludes the demonstration of the thesis postulated above
by showing how the social contract is evolved from particular
property rights contingent on Natural Law precepts.

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I
Grotian Method of Inquiry

Two great families of knowledge coexist in modern

epistemology: a priori and a posteriori. The first refers to analytic and
deductive reasoning, whereby an argument is derived from reason
alone and is prima facie independent of experience. An example would
be to say: ‘if Grotius died in 1645, then he was alive in 1644.’ This
claim is a priori true. However, this logic also has philosophical
applications that go beyond the prescriptive realm of logic. For
example, one of the earliest philosophical applications of the concept,
Plato’s MENO, defines a priori knowledge as something ‘intrinsic’ to the
human mind. 11 It is with this definition in mind that Grotius finds use
for a priori knowledge.

Conversely, a posteriori knowledge is contingent on and

synthetic of empirical knowledge. This inductive reasoning is useful to
refute any positive claims; however, it has little capacity to make any
universally valid positive claims of its own. To exemplify the dual
powers of inductive argumentation, take the analogy of the black
swan. If in one’s lifetime one only sees white swans, one might be led
to believe that all swans are white; and it thus becomes an established
a posteriori truth that: ‘all swans are white.’ However, when a man
discovers a black swan, he is led to posit another a posteriori truth that
‘it cannot be that all swans are white.’ Both claims are inductive and
universal, but whilst the first claim attempts to be positively true, and

11 Plato. Meno. Trans. Benjamin Jowett. Gutenberg Project, 2008, p. 18.

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fails, the latter rejects the first, and instead succeeds in being
negatively true.

Despite repeated usage, the negative power of inductive

reasoning was not of particular interest to Grotius. Rather, he sought
to salvage the positive, and generally undisputed, nature of inductive
reasoning; the idea of ‘common sense’, dictating that what has yet to
be proven false can be deemed to be probably true. Consequently, it is
a valid observation that Grotius often conflated the undisputed nature
of a fact with the intrinsically truthful – and not probabilistic – nature
of that fact. This assumption, which can be said to be the main and
apparent flaw of the Grotian method of inquiry, can be explained
historically. Scholars before Grotius, such as the Scottish Franciscan
Duns Scotus, had already proposed that ‘whatever occurs in a great
many instances by a cause that is not free, is the natural effect of that
cause.’ 12 As such, Grotius saw a ‘cause’ in the determinate character of
nature, guided by Providence. Most of his a posteriori positive claims
rest upon this a priori assumption.

Stephen Buckle remarks that this use of a posteriori

demonstration is particular to Grotius and leads him to have a
distinctively historical account of human nature, partly because a
priori claims about human nature are used as a backbone. 13 According
to Grotius, once the fabric of human nature has been woven – by the
Will of God – the acknowledged facts of human nature can be a priori
demonstrated to be necessary, not arbitrary. 14 However, this prima
facie necessity for particular acknowledged facts creates confusion,
exacerbated by Grotius’ interchangeable use of the terms ‘common
sense’ and ‘Providence’. Whilst such prolixity would not have troubled

12 James Franklin. The Science of Conjecture: Evidence and Probability before

Pascal. Baltimore: Johns Hopkins UP, 2001, p. 206.
13 Buckle, Op Cit., pp. 5-6.
14 Ibid., p. 6.

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the 17th century reader, it can admittedly become frustrating to the

modern reader, for whom these terms are firmly demarcated to a
singular definition. One should simply be mindful of this overlap and
use the context of the argument to qualify the reasoning.

Interestingly, there is a clear overlap between the a priori and a

posteriori demonstrations provided by Grotius. There are two possible
interpretations for this overlap. The first would explain this as a result
of the thoroughness of his arguments, which are always validated a
priori before being proven a posteriori, while another explanation is
that the overlap is the result of competing objectives for the treatises
in question.

The first interpretation could be seen to echo Grotius’ humanist

education under Joseph Scaliger at the turn of the 17th century. 15 This
methodology reflects a sort of ‘science of ethics’ and is not novel to
Grotius. In fact, it was also a preference of the late scholastic thinkers
– such as Aquinas – to blur the Aristotelian division between practical
science and theoretical science. 16 On that note, Grotius was rather
explicit of his wish to create a scientific exposition of the matter:

Just as the mathematicians customarily prefix to

any concrete demonstration a preliminary
statement of certain broad axioms on which all
persons are easily agreed, in order that there may
be some fixed point from which to trace the proof
of what follows, so shall we point out certain rules

15 Richard Tuck. Philosophy and Government, 1572-1651. Cambridge: Cambridge

UP, 1993, p. 155.

16 There exists a tense scholarly debate regarding the anti-Aristotelian

tendencies of Grotius. Richard Tuck is a prominent proponent that Grotius’

opposed the Aristotelian episteme, while Annabel Brett gives a more nuanced
account of differences, rather than opposition. Whilst it must not be the aim of
this dissertation to side with either ‘camp’ – as it would digress from the main
propositions – this research will certainly oppose parts of Tuck’s
uncompromising argument. (For further indications of Tuck’s arguments, see
Tuck, Cambridge History; or alternatively: Tuck, Rights of Peace and War.)

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and laws of the most general nature, presenting

them as preliminary assumptions which need to be
recalled rather than learned for the first time, with
the purpose of laying a foundation upon which our
other conclusions may safely rest. 17

Conversely, the second interpretation highlights how both of

Grotius’ major treatises were political in nature and were intended for
a varied audience of legal scholars and influential bourgeois alike. 18
This meant that Grotius had to be both technical and popular in his
analysis. This interpretation of the underlying politics of the text
allows for the reconciliation of technical and abstract a priori
reasoning with the added a posteriori demonstrations. The former was
a necessary formality for the intelligentsia and the latter would be
more easily disseminated to the commoners. Indeed, many of the
examples raised by Grotius were popularly accepted facts which
allowed him ‘to base [the] examination […] on ideas which are so
certain that nobody can deny them without doing violence to their
fundamental being.’ 19

Grotian methodology is at the core of Grotius’ treatment of

Natural Law. Despite the lack consistency in some areas, one can
identify the general trend of his project. He seeks ‘what is true
universally and as a general proposition; [and] then gradually
narrows this generalization, adapting it to the special nature of the
case under consideration.’ 20 This also accounts for his use of Rules and
Laws to frame his Natural Law, as will be explained later. On a grander

17 Hugo Grotius. Commentary on the Law of Prize and Booty (1603). Ed. Martine J.
Van Ittersum. Indianapolis: Liberty Fund, 2006. Thereafter referenced as: De
Indis, pp. 17-8.
18 Tuck. The Rights of War and Peace, Op. Cit., p. 95.
19 Hugo Grotius. The Rights of War and Peace. Ed. Richard Tuck. Trans. John

Morrice and Jean Barbeyrac. Indianapolis: Liberty Fund, 2005. Thereafter

referenced as: DIBP, p. 1756.
20 De Indis, p. 17.

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scale, one could argue that Grotius first establishes Natural Law as a
priori universal, and then moves to demonstrate the necessary
existence of a social contract a posteriori through the formulation of a
theory of property.

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II

Natural Law

This section aims to discuss and elaborate on the different facets

of the Grotian theory of Natural Law. One will first offer a summative
exploration of the history of Natural Law theories and Grotius’ place in
it. Then one will deal with Grotius’ answer to the Sceptic position
regarding morality, especially through his attempt to reconcile
typically opposing traits of human nature such as ‘sociability’ and
‘self-preservation’. By reflecting on some important questions about
the expediency of Natural Law, and the relationship between passion
and reason in Natural Law precepts, Grotius’ esoteric understanding
of concepts such as ‘reason’ and ‘utility’ will be explored, establishing
that Grotius was not a Stoic, and instead embraces something akin to
Aristotelian ‘moderation’ as a virtue. The strenuous relationship
between Divine Law and Natural Law will become evident. Crucially,
however, the distinctions between Natural Law, civil law and the Law
of Nations will be made explicit. By then, it will be possible to make
primitive observation about the consequences of Grotius’ philosophy
on practical matters such as how pacts and obligations are
constructed or the amount of freedom enjoyed by an individual under
Natural Law.

Historical context

Grotius’ first translator, Jean Barbeyrac (1674-1744), notes that,

in contrast to ‘the authors of classical antiquity [who] had to wait
several centuries before their work were so edited’, Grotius’ DE IURE

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