The Old and the New in the Hypothesis

"Etiamsi daremus" Grotius

of

PROF. DR. JAVIERHERVADA*

SUMMARY

1. Introduction. 2. Antecedents of the Grotian Hypothesis: a) The juridical

tradition. b) The philosophical and theological tradition. 3. The hypothesis
"etiamsi daremus" of Grotius.

1. Introduction

Grotius, without doubt, is an outstanding figure in the history of Natural

Law. His fame has certainly gone through different vicissitudes and his
merits have been debated. Grotius has been qualified in different manners
ranging from being the founder of the modern science of Natural Law -
and thus the founder of the science of International Law - - to being the
successor of the Spanish Scholasticism of the Seventeenth Centuryl. I tend
to believe that it is undeniable that Grotius owes his fame to that which is
new in his thought. I do not use the word new in the sense that it should
suppose a rupture with preceding thought; Grotius had neither such a
vocation nor such a manner, and the bonds that link him with earlier
tradition are many2. However, he was a man who, in his work De lure Belli
ac Pacis, knew how to come up with the adequate form of presenting

* Director of the
Department of the Philosophy of Law of the University of Navarra.
' On Grotius there exists an abundant
bibliography which can be seen in J. Ter
Meulen-P. J. J. Diermanse, Bibliographie des ecrits sur Hugo Grotius imprimés au XVII
siècle (The Hague 1961); H. C. Rogge, Bibliotheca Grotiana (The Hague 1883); M.
Berljak, Il diritto naturale e il suo rapporto con la divinith in Ugo Grozio (Rome 1978),p.
137ff.A. Truyol, Historia de la Filosofia del Derecho y del Estado, II, Del Renacimiento a
Kant (Madrid 1975),p. 154ff; G. Fasso, Storia della filosofiadel diritto, II, Letti moderna,
2nd ed. (Bologna 1972), p. 427ff.
2 Vide, a.o., R. Labrousse, Il
problema della originali19 di Grozio, in "Revista Inter-
nazionale di Filosofia del Diritto", XXVIII (1951), p. Iff; G. Ambrosetti, I presupposti
teologici e speculativi delle concezione giuridiche di Grozio (Bologna 1955); A. Corsano,
Ugo Grozio, I'umanista, il teologo, il giurista (Bari 1948); F. De Michelis, Le origini
storiche e culturali del pensiero di Ugo Grozio (Florence 1967); M. Sancho Izquierdo-J.
Hervada, Compendiode Derecho Natural (Pamplona 1980-81),p. 213ff.

3
contemporary themes in a "modern" fashion, that is, according to some of
those great lines which later on would come to configurate an important
part of European culture. In other words, Grotius, although his roots sink
deeply in tradition, is a thinker who cannot be inscribed within the
Catholic and Scholastic framework which still predominated shortly be-
fore his arrival, but rather within the new culture whose roots were
Protestant. This new culture, united with Laicism, would conform that part
of modern thought which would predominate in Europe in the centuries
following.
A very clear example is the Treatise on Marriage which is found in the
De lure Belli ac Pacis. Whatever reader who, like myself, is familiar with
the canonical matrimonial system of preceding times and happens to read
the pages which Grotius wrote concerning marriage cannot avoid being
deeply deceived insofar as scientific quality is concerned. Compared with a
solid scientific system that runs through a tradition spanning centuries and
is clarified by illustrious minds - among whom we must mention Tomis
S£nchez3 who Grotius quotes on several occasions - the Grotian Treatise
on Marriage in comparison turns out to be of such poor scientific quality as
to border on vulgarity. Grotius, however, had - far those who in his time
had already drifted away from previous tradition and from the posterity
which would stem from that line - the virtue and the opportunity of
offering the first treatise on marriage - of certain length and not exempt of
erudite features - based upon the new conception which had become
established in Europe with the advent of the Protestant Reformation, the
subsequent secularization of marriage4.
Grotius is a prudent blend of the old and the new, of tradition and - in
relation with his epoch - of modernity. Methodologically, the Grotius of
De lure Belli ac Pacis does not present any special novelty: he is a jurist
who inscribes himself within the framework of juridical Humanism -
cultured jurisprudence - even though he offers an agile work, written with
elegance and with great erudition, which compares favorably with the
hodgepodge we find among other jurists5. At the same time, however, he is

3 De sancto matrimonii sacramento

disputationum libri tres (Antwerp 1607).
4 The
concept of marriage in modern Natural Law science has been correctly studied by
A. Dufour, Le mariage dans I'Ecole allemande du Droit naturel moderne au X Vllle siècle
(Geneva 1972). Id., Le mariage dans I'Ecole romande du droit naturel au X Vllle siècle
(Geneve 1976).
5 Cfr. F. Carpintero, "Mos italicus;;, "mos gallicus"y el Humanismo racionalista. Una
contribuci6n a la historia de la metodologia juridica, in "Ius Commune", VI ( 1977),p.
169ff.

4
one of the first jurists of the new European order which he himself helped
to forge.
This mixture of the old and the new can also be observed in the con-
troversial Grotian hypothesis "etiamsi daremus non esse Deum aut non
curari ab eo negotia humana". I should like to say a few things concerning
this point in the lines that follow, in turn offering, I hope, something in part
old and in other ways new6.

2. Antecedents of the Grotian hypothesis

The European tradition concerning Natural Law which Grotius picks up

has two lines of transmission which arise from the reception of Roman
Law: a) the tradition of jurists who commented the Corpus Iuris Civilis or,
in any event, the Corpus Iuris Canonici; and b) the philosophical-
theological tradition, whose main representatives were theologianS7. The
latter studied Natural Law and Natural Right in order to establish the
fundaments of the moral orders. From the later years of the Roman Empire
and prior to the reception of Roman Law, Natural Law was analysed by
the Patristics and by the Scholastic writers who found the nexus between
Paganism - mainly Aristotle and the Stoics - and Cristianity in Rom. 2,
14-168, in that which concerns the ius naturale and especially the lex
naturae.
The medieval jurists and theologians, immersed within the Christian
European culture, had points in common and a backdrop of similar ideas,
but - according to what can be assessed from recent studies9 and can be

6 This
hypothesis has particularly been studied by J. St. Leger, The "etiamsi daremus" of
Hugo Grotius (Rome 1962), diss.; M. Berljak, I.e. Cfr. also P. Ottenwälder, Zur Natur-
rechtslehre des Hugo Grotius (Tiibingen 1950);A. Droetto, Grozio e il concetto di natura
come principiodel diritto, in "Rivista Internazionale di Filosofia del Diritto", XXV ( 1948),
p. 375ff.; C. Edwards, The Law of Nature in the Thought of Hugo Grotius, in "Journal of
Politics", XXXII (1970), p. 784ff.
' Although in a very elemental manner, we have tried to go over both lines in M. Sancho
Izquierdo-J. Hervada, I.c.
8 See,
f i., C. Larrainzar, Precedentes de la doctrina medieval sobre la ley natural:
comentarios directos al texto paulino Rom. 2, 14-15,in "Persona y Derecho", VIII (1981),
p. 101 ff.
9 See F.
Carpintero, l.c.; Id., El Derecho natural laico de la Edad Media. Observaciones
sobre su metodologia y conceptos, in "Persona y Derecho", VIII (1981), p. 33ff. Id., Del
Derecho natural medieval al Derecho natural moderno: Fernando Vdzquezde Menchaca
(Salamanca 1975); Id., Sobre la génesis del Derecho natural racionalista en los juristas de
los siglos XII-XVII, in "Anuario de Filosofia del Derecho", XVIII (1975), p. 263ff.

5
confirmed by going straight to the sources - they form two distinct lines of
tradition in that which concerns the treatment of the notion of Natural
Law: the perspectives and the topics differ. There remains a common
background, but the treatments run along different lines.
In my opinion it can be affirmed that, generally speaking, the direct
influences of theologians on jurists are scarce - I am here refering to truly
significant influences - as far as the mode of treating the notion of Natural
Law is concerned. We can also observe the opposite phenomenon. Jurists
commented the Corpus Iuris and debated among themselves according to
different schools and methods. In turn, theologians studied Natural Law
from a philosophical and theological stance and even though they did
quote Roman sourcesl°, they hardly took notice of jurists.
That we observe few direct influences on the part of theologians with
regard to jurists does not imply the absence of any influences, which did
exist, especially in an indirect manner. The dominant philosophical
systems - which almost entirely were the work of theologians although
with some roots in Antiquity - such as Realism and Nominalism, Intel-
lectualism and Voluntarism left their mark upon the juridical sciences. On
their part, theologians received certain influences from jurists: for examp-
le, the notion of ius gentium.
This phenomenon greatly changed with the advent of Humanism. The
"cultured jurisprudence" signified, on the part of jurists, a greater usage -
which at times is abundant - of the work of canonists and of theologians.
Even so, both traditional lines continued to be visible and would not
become fused until the Eighteenth Century. This phenomenon is to be
observed even among canonists from whom, in principle, one could expect
a greater influence with regard to theologians. For example, until times
following Grotius, no canonist treated Natural Law according to lines set
down by theologians, especially by Saint Thomas of Aquinas. The first to
do so, according to the information I have been able to consult, was
Gonzdlez Tellez, who offered an elegant resumd of the Thomistic theory".
For this reason it has been maintained - and rightly so in my opinion -
that the history of Natural Law in the Middle and Modern Ages is only
partly accomplished: the philosophical-theological line is followed, but the
juridical line is usually forgotten, with the exception of some singular
figures such as Gratianus or Vdzquez de Menchaca2.

10
Seef i., J. M. Aubert, Le droit romain dans l'oeuvre de saint Thomas (Paris 1955).
11 Commentaria
perpetua in singulos Textus quinque Libros Decretalium Gregorii IX,
tome I (Lugdduni 1715), p. Iff.

6
 In Grotius - a qualified representative of juridical Humanism - the two
lines converge. Consequently, in order to understand the antecedents of
the "etiamsi daremus" hypothesis it is convenient to examine both.

a) The juridical tradition.

As far as I know, there do not exist, among jurists, clear antecedents of the
Grotian thesis, although references to the divine fundaments of Natural
Law can be found.
With the onset of European juridical science, thanks to the labor of
Irnerius, Natural Law such as it appeared in the Corpus Iuris Civilis came
to be an integral and undisputed part of juridical culture, and a common-
place which was repeatedly studied by jurists, even though references to its
notion and fundament were generally brief.
In Irnerius Natural Law appears to be linked with God, when he glosses
the notion of natura in the Ulpianian definition. For Irnerius, nature has
been "divini(tus) prodita generaliter et singulatim"13, from whence it can
be deduced that Natural Law proceeds from God. We need not search any
more - I believe - in Irnerius. However, we could ask ourselves if the
Irnerian gloss contains a meaning linked to the Christian sense of creation,
or else to a Stoical Pantheistic meaning. I think the former holds true. The
expression "divinitus prodita" of the Imerian gloss means created by God,
since the adjective proditus meant, in everyday Latin, the notion of made,
born of, engendered, the same as it did in classical Latin'4, which indicates
to us that Imerius interpreted natura in the Christian sense of creation. This
meaning also appears clearly in a primitive anonymous gloss affixed to that
of Irnerius as an addendum: nature is the secondary cause by which God
the creator teaches what has to be donel5.
On the other hand, it would not seem acceptable to think that Irnerius
pretended to give an original interpretation to the Ulpianian text. Several
generations of jurists would have to go by before interest for the original

l2Recently studies have been carried out on jurists prior to the Eighteenth Century. Apart
from the author cited in footnote 9, see the excellent monography of R. Weigand, Die
Naturrechtslehre der legisten und Dekretisten von Irnerius bis Accursius und von Gratian
bis Iohannes Teutonicus (Munich 1967).
13 Glosa natura a D.
1, 1, 1, 3. Also glosa natura a Inst. 1, 2.pr.: "Divina prodita iudicio
generaliter, singulariter indidit nature civium" (R. Weigand, I.c. p. 18).
14 Cfr. Ch. D. Du
Cange, Glossariummediae et infimae latinitatis, VI (reprod. Graz 1954),
p. 523: "Proditus, Editus, genitus".
15 "Est enim in omnibus natura
prodita divino iudicio qua docemur cuncta hec agere
sine doctrina; quod ergo illa natura docet, ius dicitur naturale a natura docente illud" (R.
Weigand, L c.p.19).

7
meaning of texts should arise. Imerius, as well as other glossers and
commentators, interpreted Roman texts in conformity with the ideas of his
day16.
The same Christian meaning is to be found in the glosses of Bulgarusl7
and Martinus18, or in similar expressions used by the Summa Institutionum
Vindobonensis19 to which we can add those glosses or summae that affirm
that Natural Law is the will of God, as for example the treatise Divinam
voluntatem vocamus iustitiaM20. An identical meaning can be attributed to
the known interpretation natura, idest Deus which we find in Placentinus2l,
AZO22,Accursius32 and others24.
All the formulae used express the Christian idea concerning the
relationship between God and created nature. Centuries earlier, Saint John
Chrysostom had used a similar formula: "When I say nature I say God, for
God is the author of nature25. The origin of this idea is Holy Scripture, in

16 Cfr. F. Calasso, Medio Evo del diritto

(Milan 1954); G. Fass6, I glosatori e il
giusnaturalismo medievale, in "Rivista internazionale di Filosofia del Diritto", XL (1963),
p. 691ff.;G. Otte, Dialektik und Jurisprudenz. Untersuchungen zur Methode der Glossa-
toren (Frankfurt 1971 );N. Horn, Die juristischeLiteratur der Kommentatorenzeit,in "Ius
Commune", II (1969), p. 84ff.; P. Weimar, Die legistische Literatur und die Methode des
Rechtsunterrichts der Glossatorenzeit,in "Ius Commune", II (1969), p. 43ff.; G. Chevrier,
Sur I'art de I'argumentation chez quelques romanistes mdievaux au XII et au XIII siècles,
in "Archives de Philosophie du Droit", XI (1966), p. 115ff.; H. Coing, Trois formes
historiquesd'interpretation du droit. Glossateurs,pandectistes, Ecolede 1'exeg?se,in "Revue
historique de Droit franqais et etranger", XXXIX (1961), p. 224ff., p.359ff.
17 "Omnia naturali iure
inspecto dei sunt, non solum quo ad materiam, verum etiam
quantum ad formam, quia et eius fuit materia ex qua condidit et ipse eidem preiacenti
singula creando formam dedit. Quod ergo dicitur quedam divini iuris esse, exaudias
hominum censura, cuius omnia sunt ex sua propria" (R. Weigand, I.c. p. 25).
's "Ius enim naturale cum est constitutio divine voluntatis,
potest dici ars boni et equi".
Inst.1.1.(R. Weigand, I.c., p. 32).
?9 III, I :"Ius naturale est conditio rebus creatis ab
ipsa divina dispositione imposita". (R.
Weigand, I.c. p. 27).
20 "Absolute enim dicimus iusticiam dei voluntatem esse"
(R. Weigand, l.c., p. 35).
21 In Placentinus we find stated the of whether or not natura is in this case
question
nominative or ablative. This question deals directly with the matter we are touching here
because - through this apparent grammatical question - the divine origin of Natural
Law is put forth. Summa Institutionum, 1, 2(R. Weigand, l.c.., p. 43): "Natura, id est Deus,
quia facit omnia nasci".
zz Summa Institutionum, l, 2, 1
(R. Weigand, I.e., p. 52).
z3 Glosa natura a D. 1, 1, 1, 3.
z4 See V. Gualazzini, Natura, idest Deus, in "Studia Gratiana" III(Bononiae 1955),
p.
411ff.; G. Fass6, La Legge della ragione (Bologna 1964),p. 48ff.
z5 "Cum autem naturam
profero, Deum dico: ille quippe naturam creavit". Homiliae in
Epistolam primam ad Corinthios, hom. XXVI, no. 3 (PG, LXI 216). Clearer is the

8
which we repeatedly find the precepts of Natural Law and the government
of the entire world attributed to God's will. Everything there is in the world
expresses and manifests the Providence, Wisdom and Will of God. With
regard to the New Testament, we merely have to consult Rom. 1, 18-32 and
2, 1-16.
In this manner Imerius, a Master in Arts, introduced a philosophical and
theological topic which lasted until Grotius. But we are dealing with a
commonplace topic having a very limited scope, since jurists hardly
developed it, holding rather to the interpretation of the Ulpianian term
natura. And in those cases in which such an interpretative horizon was
surpassed, such as in the case of V£zquez de Menchaca26, jurists gave their
opinions with little doctrinal development.
The gloss natura idest Deus, in my view, does not try to say that in the
Ulpianian text the word natura has to be interpreted as a synonym for God.
The Imerian gloss - which originated all the rest - and those which
express the same idea with different words try to say that Natural Law,
taught by nature (quod natura... docuit), is taught in the last instance by
God, since nature proceeds from God through creation. This is none other
than the Christian idea which is already present in the texts Rom. 1, 18-32
and 2, 1-16 quoted earlier on. If we apply the terminology of the Scho-
lastics, the Ulpianian natura is interpreted as the natura naturata (created
nature) which proceeds from the natura naturans (creating nature, that is,
from God).
Was this interpretation followed by all jurists? If we reject some text of
Stoical knowledge written by CujacciuS27 and the ambivalent posture of
Odofredus, it can be stated that this was the common interpretation, as can
be proven by unequivocal texts by Pierre de la Belleperche, Jacques de
R6vigny, Bartolus a Saxoferrato and others.

translation that appears in Note 3, page 7 of the ed. P. C. Molhuysen of De lure Belli ac
Pacis of Grotius: "Cum naturam dico, Deum dico. ipse enim est naturae opifex.
26 Controversiarum illustrium
aliarumque usu frequentium libri tres, cap. 27. Vazquez de
Menchaca follows Ockham's extreme Voluntarism, and cites this author. His thought can
be summarized in this passage: "Ius enim naturale nihil aliud esse, quam rectam
rationem ab ipsa nativitate et origine humano generi a Deo innatam supra edocti sumus.
Ergo si ipsemet Deus contrariam rationem a nostra origine mentibus nostris imbuerit, id
similiter erit ius naturale". Bilingual edition of F. Rodriguez Alcalde, vol. II (Valladolid
1932),p. 149.A few lines earlier he quotes Ockham: "Et in hunc sensum salvari tuerique
poterit opinio Occham supra relata ...".
27 Recitationes solemnesad Tit. I, Lib. I
Digestorum de Iustitia et lure, Ad § Hujus studii,
in Opera Omnia Naples 1722),VII, cols. 13 and 16.
28 The texts can be found in F.
Carpintero, El Derechonatural laico de la Edad Media, I. c. ,
p. 64ff.
9
 According to the data I have been able to research, there do not exist, in
the jurists who precede Grotius, any antecedents to the Grotian hypothesis.

b) The philosophical and theological tradition.

The antecedents are to be found in the theologians preceding Grotius, from
the Fourteenth Century. Even so, they are not abundant.
As far as Natural Law is concerned, such a hypothesis doesn't seem to be
detected before the mentioned date. However, since certain authors
maintain the contrary, it would seem convenient to examine possible
precedents prior to the Fourteenth Century. Two authors are usually
quoted: Marcus Aurelius and Hugh of Saint Victor.
From Pufendorf, some authors have affirmed that Grotius took the
"etiamsi daremus" hypothesis from Marcus Aurelius29. The passages from
the Meditations which are alleged are two distinct ones which are either
proposed separately or jointly: Book II, 11 (30) and Book VI, 44 (31).
29 De iure naturae et
gentium, II, cap. III, 19. See also G. Fasso, Ugo Groziotra medioeve
ed etd moderna, in "Rivista di Filosofia", XLI ( 1950),p. 84; P. D. Dognin, La justice de
Dieu et le droit naturel, in "Revue des Sciences Philosophiques et Th6ologiques", XLIX
(1965), p. 72.
30
"Manage all your actions and thoughts in such a manner as if you were just going to
step into the grave. And what great matter is the business of dying? If the gods are in
being, you can suffer no harm. And if they are not, or take no care of us mortals, why then
I must tell you that a world without either gods or providence is not worth a man's while
to live in. But there is no need of this supposition; the being of the gods, and their concern
in human affairs, is beyond dispute. And as an instance of this they have put it in his
power not to fall into any calamity properly so called. And if other misfortunes (as we
count them) had been really evils, they would have provided against them too, and
furnished them with capacity to avoid them. And here I would gladly know how that
which cannot make the man worse should make his life so? To speak clearly, I can never
be persuaded that the first cause can be charged with the want of power, skill, or
inclination to take care of these matters; or, that nature should commit such an error as to
suffer things really good and evil to happen promiscuously to good and bad men. Now,
living and dying, honour and infamy, pleasure and pain, riches and poverty all these
things are the common allotment of the virtuous and disorderly. Why so? Because they
have nothing of intrinsic creditableness or scandal in their nature, and therefore, to speak
properly, are neither good nor bad".
31 "If the
gods have decreed me anything, they have decreed my advantage. If not, they
must either be mistaken in their measures or unbenevolent in their design. Now, as the
first part of this supposition is absurd, so the latter is incomprehensible. For to what
purpose should they intend me any harm? What would themselves or their universe get
by it? But granting they have made no particular provision for me, yet since their
government of the world is not disputed, the consequence will be much the same. For this
way my affairs will be comprehended and fall within the compass of their general
providence, and why then should I not be contented with whatever happens? To put the

10
 In my opinion, it is possible that these two texts served as inspiration to
Grotius as for the literary form of stating the hypothesis and of exposing his
thought on the relationships between God and Natural Law. But it must be
borne in mind that Marcus Aurelius is not speaking of Natural Law nor of
its fundament, but rather of the attitude which man must have regarding
life if he wishes to live philosophically (in the ancient sense of practical
knowledge or wisdom in one's behavior). This topic is quite distinct from
the one Grotius treats. Most assuredly, Marcus Aurelius' text can have had
an indirect relation with Grotius' line of thinking, when he affirms that if
the gods did not remove all evil, nature would not have ceased to correct it,
or else that if the gods did not deliberate on what concerns men, each man
is capable of deliberating on that which is convenient, which is that which
is in agreement with his rational and sociable nature32. Grotius could not
have drawn his main idea concerning Natural Law from Marcus Aurelius;
among other reasons because it cannot be found in Marcus Aurelius33.
Furthermore, why should we think as being the source of the idea thoughts
which are so far removed from Natural Law, and if the hypothesis "etiamsi
daremus" was quite thoroughly studied in authors much closer to Grotius'
day, among whom several - Gabriel Vdzquez, Vitoria, Molina and Sudrez
- are
quoted in the De lure Belli ac Pacis?
The other author whom we mentioned earlier is Hugh of Saint Victor.

case further. Suppose the gods take care of nothing, which, by the way, we must reckon a
scandalous opinion, or else it will be high time to leave off the common solemnities of
sacrificing, prayers, and religious swearing. If things lie thus, why all this superstitious
trouble in these and many other instances? To what purpose should we behave ourselves
as if we were in the very court and company of heaven? However, since a supposition
implies nothing of reality, let it pass for once. If the gods therefore will take care of none
of us, it is certainly lawful for me to take care of myself. Now it is my right to state the
notion of my own convenience; and what is that? Why, that is convenient for every one
which suits his nature and his species. Now my nature has reason, sociable principles, and
public inclination in it. By consequence, the interest of my country must be my own. Take
me then under the particular distinction of Antonius, and Rome is my town and country;
but consider me as a man in general, and I belong to the corporation of the world. That,
therefore, and only that, which is serviceable to both these societies, is an advantage to
me."
3z A
comparative study of the texts of Marcus Aurelius and Grotius can be found in M.
Berljak, I.c., p. 97ff.
33 At most, it can be
supposed that Marcus Aurelius' text contained in Book VI, no. 44,
could have served as inspiration for him, by association of ideas. But all this is nothing but
a supposition which could only have converted itself as a certain fact if Grotius had
manifested it as being so.
34 See, for
example, J. St. Leger, I.c. p. 122ff.; M. Berljak, I.c. p. 82ff.

11
In reality, Grotius does not quote this medieval theologian nor does it seem
probable that he should have known him, if we bear in mind his Protestant
upbringing and the centuries that separate the two. Indeed, it does not
seem probable that a Protestant such as Grotius should have had any
interest in knowing a medieval treatise on the Christian mysteries such as
the one written by Hugh of Saint Victor. If he is cited as a precedent, it is
because it is supposed that Grotius was influenced by Gregorius of Rimini
who does quote Hugh of Saint Victor. It just happens, however, that the
differences between the thoughts of Gregorius of Rimini and of Hugh of
Saint Victor are notable. Furthermore, the interpretation of the latter's
thought which present-day authors offer as being a precedent of Grotius
hardly is brought out in the available texts. -
To begin with, it does not cease to be strange that an author so
impregnated with medieval political Augustinism such as Hugh of Saint
Victor35 should incline himself in favor of an extreme Objectivism. Even
more so if we bear in mind that Hugh of Saint Victor treats de lege naturali
in the theological context of Divine Law understood in the ample sense of
the economy of salvation presided by the free will of God. It is indeed
significant that Hugh of Saint Victor should begin the study of God's will
by placing it as the measure of what is just36. All things are just - he says -
insofar as they are in agreement with the will of God, which is just. And
God's will is just because it is the first cause that is not caused. Being eternal
and not caused, God's will is not just because it adjusts itself to things, but
rather because all things - created by God's will - are just inasmuch as
they adjust to divine will. This idea is far removed from Objectivism.
Observe how Hugh of Saint Victor presents a latent idea which is common
to the creationalist Catholic thought and to which we shall refer later on.

3s See J. Hervada, Tres estudios sobre el uso del tormino laico

(Pamplona 1973),p. 144ff.
36 "Prima rerum omnium causa est voluntas Creatoris
quam nulla praecedens causa
movit quia aeterna est: nec subsequens aliqua confirmat, quoniam ex semetipsa justa est.
Neque enim idcirco juste voluit, quia futurum justum fuit quod voluit; sed quod voluit,
idcirco justum fuit quid ipse voluit. Suum enim ac proprium voluntatis ejus est esse
justum quod est, et ex eo quod in ea justum est quod ex ea justum est. Quoniam
secundum eam justum est quod justum est quod utique justum non esset, si secundum
eam non esset. Cum ergo quaeritur quare justum est quod justum est convenientissime
respondetur: quoniam secundum voluntatem Dei est, quae justa est. Cum vero quaeritur
quare voluntas Dei justa est, hoc sanius respondetur: quoniam primae causae causa nulla
est cui ex se est esse quod est. Haec autem sola est unde ortum est quidquid est; et ipsa
non est orta, sed aetema". De sacramentis christianae fidei,lib. I, pars IV, cap. I (PL, 176,
133 and following).

12
Things receive from first cause an exemplary influence: its goodness is
judged by its analogy and similarity with the Primary Cause.
Neither do we find any evidence of an extreme Objectivism - at least in
my view - in the texts of Hugh of Saint Victor that Gregorius of Rimini
and some contemporary authors quote37, but rather the common idea that
Natural Law is, indeed, natural, that is, engraved upon man. The
praeceptum naturae or Natural Law is described as natural discretion and
intelligence, discretion intrinsecus inspirata and cordi hominis aspirata. The
adjectives inspirata or aspirata show that Hugh of Saint Victor understands
Natural Law as something inspired by God in agreement with the biblical
idea that God gave man understanding and discemment38. The literal
expression shows a thought which does not coincide with Objectivism. He
writes: "Praeceptum naturae fuit quod intus aspiratum per naturam". By
using the preposition per with the accusative (naturam), what is affirmed is
that Natural Law was inspired by God mediante (by means, through)
nature, not that it was inspired by nature. From all this it turns out that we

37 L.c., lib. I,
pars IV, caps. 6 and 7, (ibid., 267 and 268): "Quia vero homo ex duplici
natura a compactus fuerat, ut totus beatificaretur, duo ejus illi bona; conditor a principio
praeparabat unum visibele, alterum invisibile. Unum corporale, alterum spitiruale.
Unum transitorium, alterum aeternum. Utrumque plenum et utrumque in suo genere
perfectum. Unum cami, alterum spiritui, ut in uno sensus carnis ad jucunditatem
foveretur, in altero sensus mentis ad felicitatem repleretur. Carni visibilia, spiritui in-
visibilia ;spiritui invisibilia; cami ad solatium, spiritui ad gaudium. Ex his bonis unum
dedit, alterum promisit (...). Bonum homini a Deo vel datum vel promissum nihil
profuisset, nisi et ad illud quod datum fuerat apponeretur custodia ne amitteretur, et ad
illud quod promissum fuerat aperiretur via ut quaereretur et inveniretur. Propterea ad
bonum datum posita est custodia, praeceptum naturae; et ad bonum promissum aperta
est via, praeceptum disciplinae. Duo ista praecepta data sunt homini: praeceptum
naturae et praeceptum disciplinae. Praeceptum naturae fuit quod intus aspiratum est per
naturam; praeceptum vero disciplinae quod foris appositum est ad disciplinam: intus per
sensum, foris per verbum. In his duobus mandatis totum continetur quidquid bonum vel
faciendum vel cavendum, praecipitur. In praecepto naturae tria sunt: praeceptio.
prohibitio, concessio. Praeceptum autem naturae nos nihil aliud intelligimus, quam
ipsam discretionem naturalem quae intrinsecus inspirata est ut per eam homo erudiretur
de his quae sibi vel appetenda vel fugienda fuerunt. Quasi enim quoddam praeceptum
dare erat, discretionem et intelligentiam agendi, cordi hominis aspirare. Quid ergo
cognitio faciendorum fuit, nisi quaedam ad cor hominis facta praeceptio? et quid rursus
cognitio vitandorum fuit nisi quaedam prohibitio? quid vero cognitio eorum quae media
fuerunt existimanda est, nisi quaedam concessio? ut illic homo suo libero arbitrio
relinqueretur ubi quamcunque partem elegisset non laederetur Deo igitur praecipere,
erat docere hominem quae sibi necessaria forent. Prohibere autem demonstrare noxia.
Concedere vero insinuare ad utrumlibet se habentia;;.
3g See Eccli 17, 1-6.

13
do not find in Hugh of Saint Victor any Objectivism of the style of Gre-
gorius of Rimini, V£zquez or Grotius.
Properly speaking, the precedents of the "etiamsi daremus" hypothesis
are to be found in some authors of Nominalistic stance of the decadent
Scholastic of the Fourteenth and Fifteenth Centuries, and in the most
important authors of the Second Spanish Scholastic.
The medieval origin of the hypothesis - at least according to known data
-
appears to be situated in the Augustinian Gregorius Novelli of Rimini,
who died in 135839. Even though this author maintains that Eternal Law is
no other than the will of God, a typically voluntaristic affirmation4°, he
arrives at extreme Objectivism in that which concerns the reason for justice
and injustice, for moral good or evil. Gregorius of Rimini, following in this
the precedents of Saint Albert the Great and of Saint Thomas of Aquinas -
who speak of the vis directiva and the vis coercitiva of the Law - dis-
tinguishes between the preceptive function and the indicative function of
the Law. As regards the former, he shows that something is either good or
bad. Well then, what indicates that a thing is good or bad is right reason. As
a consequence, sin - that which is morally evil - is that which is in
opposition to right reason. Hence sin consists of behavior which is in
opposition to divine reason, not insofar as it is divine, but rather inasmuch
as it is right. Therefore, if by some impossible means divine reason or God
Himself did not exist, or if divine reason were not right, there would be sin
if the action committed were contrary to the right reason of men or of
angels. He goes even further: if right reason did not exist, whoever acted
contrary to what right reason would dictate if it did exist would in fact sin4l.
You will observe that the hypothesis is quoted as being impossible. The
foundation of the moral order is not really, therefore, human reason or that
of angels nor of any other different right reason. The true foundation is,
according to the author being quoted, divine reason, even though it is thus
39 See, on this author, P. Altieri,
Gregorio da Rimini. Interprete di alcune correnti del
pensiero medioevale(Rovigo 1974).
4o in I Sententiarum, dist. XLIII, q. 1, a. 2.
41 "Si
quaeratur cur potius dico absolute contra rectam rationem quam conctracte contra
rationem divinam, respondeo ne putetur peccatum esse praecise contra rationem
divinam et non contra quamlibet rectam rationem de eodem; aut aestimetur, aliquid esse
peccatum, non quia est contra rationem divinam inquantum est recta; sed quia est contra
eam inquantum est divina. Nam si per impossibile ratio divina sive Deus ipse non esset
aut ratio illa esset errans adhuc si quis ageret contra rectam rationem angelicam vel
humanam aut aliam aliquam si qua esset peccaret. Et si nulla penitus esset ratio recta
adhuc si quis ageret contra illud quod agendum esse dictaret ratio aliqua recta si aliqua
esset, peccaret" In II Sententiarum, dist. XXXIV, q. 1, a. 2.

14
because it is right and not for the mere fact of being divine. The
impossibility of the hypothesis destroys - in Gregorius of Rimini's thought
- the true of the moral order with respect to God. The
independence
ultimate fundament of the moral order would be human reason if God did
not exist, and that is impossible. From thence it follows that truly the
ultimate fundament of the moral order is not human reason but rather
divine reason, being impossible in reality that it should be human reason.
For this Rimini's thesis was debated, but it did not scandalize Catholic
theologians in the way that Grotius' opinion would later on.
It seems to me that it is not correct to affirm that Gregorius of Rimini
fundaments the moral order upon human reason: that the ultimate
fundament of the moral order should be human reason is a hypothesis
which specifically denies a real possibility. Bear in mind that it is not stated
as being false, but rather as being impossible. The 'nuance, in my opinion, is
not only important, but also decisive. Let us see: why is it impossible? Not
because God really exists, for therefore it would merely be false. To brand
it as being impossible - and do not forget that Gregorius of Rimini belongs
to the Scholastic, and it is not easy to conceive a Scholastic, for whom every
word had a precise meaning, substituting the adjective false for the one
impossible - one needs to be in possession of a fundamental truth: God is
the beginning of all beings and there is nothing in reality which is not a
remnant or a reflection - a trace - of His essence. Even abstract values -
beauty, goodness, the good, rectitude, etc. - are not fulfilled in God - in
Whom there is no distinction between Divinity and God, between essence
and existence, etc. - but rather are either God Himself - his essence - or a
representation of man's understanding of the divine traces in things.
Starting with this truth, the hypothesis becomes rigorously impossible
because human reason is necessarily the reflection of divine reason. Not
only is this so, but also it cannot be otherwise because human reason can be
imaginable unlinked to God, but it is not intelligible in this manner. For this
the hypothesis is impossible. It is indeed true that it can be stated, if this is ,
that Gregorius of Rimini is not entirely logical when he says that divine
reason is the measure and fundament of the moral order for its being right
and not for its being divine. For, according to the truth set forth, right and
divine are really the same thing. Certainly, we find in Gregorius of Rimini
a partial lack of concordance between the idea from which we can say that
the hypothesis is impossible - common in Catholic theology - and his
opinion concerning the fundament of Natural Law. This lack of concor-
dance is introduced by Nominalism and Ockham's Voluntarism. For this,
Catholic theology finally rejected Nominalism and, generally speaking,

15
 Ockham's system, both of which persisted in non-Catholic intellectual
circles only. For this also, the Second Scholastic rejected Gregorius of
Rimini's thesis.
Gregorius of Rimini's followers were a few authors such as Gabriel
Bie142 who almost literally transcribed his words, Jacobus Almain43 and
Antonius of Cordoba44.
The hypothesis "si Deus non esset vel nihil praeciperet" also appears in
Vitoria45, Soto46, Molina47, Medina48 and Su?rez49, among whom some
quoted - and opposed - Gregorius of Rimini's thesis which Vitoria brands
as constituting "imaginations"5°. With different nuances in which we
cannot now go into detail, the mentioned Spanish Scholastics agree in
pointing out that since Natural Law is a law which is etched upon nature,
Natural Law would still indicate that which is in confirmity and in lack of
conformity with human nature in the thesis that God did not exist or did
not dictate anything. However, it would not properly be a law; that which is
in lack of conformity with the natural norm would be bad in the same way
that to be lame is bad or that a poorly drawn painting is bad. It would be
bad but void of blame, or would constitute what later became known a
philosophical sin as distinguished from theological sin. The hypothesis "si
Deus non esset" is still to be qualified as being impossible.
As being impossible is how Gabriel Vdzquez, who follows an extreme
Objectivism, terms it. According to V£zquez, the nature of God is the
primary and eternal origin of man's nature. Therefore, divine reason is the
measure of all rectitude. Now then, even if divine nature and divine reason

42
Epitome et collectorium ex Occamo circa quattuor Sententiarum Libros Tübingen 1501,
reprod. Frankfurt 1965),lib. II, dist. XXXV, q.un., a. 1.
43 Moralia (Paris 1526),lib. III,
cap. 6.
44 (Venice 1569), lib. III, de conscientia, q. 10, ad. 2. Quoted by A. Folgado,
opera
Evoluci6n hist6rica del concepto del derecho subjetivo(San Lorenzo de El Escorial 1960),
p. 39.
45 Relectio de eo ad
quod tenetur homo veniensad usum rationis, II, no. 9, in "Obras de
Francisco de Vitoria. Relecciones teol6gicas", BAC (Madrid 1960),p. 1353.
4s De Iustitia et lure libri decem, lib. I, IV, a. 2, ed. Instituto de Estudios Politicos
q.
(Madrid 1967-68),pp. 29 and 31.
De Iustitia et lure tomi sex, ib. V, disp. XLVI, no. 14, Spanish Edition by M. Fraga
(Madrid 1941-44),p. 262ff.
4g
Expositio in I-IIAngelici doctoris divi ThomaeAquinatis (Salamanca 1577),q. 18,a. 1.
49 De
legibus ac Deo Legislatore, lib. II, xap. VI, nos. 4, 7 and 8. A modern edition is the
Bilingual Edition put out by the Instituto de Estudios Politicos, 6 vols., (Madrid 1967-68).
50 Relectio..., cit., II, no. 10, ed. cit., 1354.
p.
51 A somewhat more detailed
exposition of these authors can be found in M. Sancho
Izquierdo-J. Hervada, I.c. p. 270ff.

16
were the origin and measure of man's nature inasmuch as God is the
primary source and creator of all beings, they are not the primary root nor
the cause of the prohibition of moral evil, nor the norm of moral good.
Prior to all rule, to all will and even to judgment, there exists a norm of
actions which is valid due to its very nature: this norm is rational nature not
implying contradiction52. In this manner, in the impossible supposition
that God did not judge correctly and that man still retained his reason, sin
would still be sin53.
Gabriel Vazquez, who in other themes also tends to underline the
natura154, seems to go even further than Gregorius of Rimini. In V£zquez
the ultimate root of the norm governing the moral order is not divine
reason but rather the nature of God. As a consequence, the ultimate root of
the moral norm is not the dictate of divine right reason. Thus it is esta-
blished that the moral norm, more than a law or a mandate, procedes from
the legislator (reason or will); it is a natural objective norm. In other words,
the moral norm is not the dictamen rationis, but rather the regula naturae.
With this supposition, the contents of Natural Law, rather than in divine
reason, are founded in man's nature. On the other hand, man's nature -
and this is impossible - is regulated by God's nature, as a principle of all
being which does not imply contradiction.
The latter is important because it indicates that in spite of his extreme
Objectivism, Vdzquez remains true to the fundamental idea which we
mentioned earlier. He does not tear up the intrinsic and necessary relation
between divine nature and human nature. Hence the hypothesis continues
to be impossible. In reality - the only reality possible - the ultimate norm is

5z Commentariorum ac
disputationum in Primam Secundae Sancti Thomae tomus
secundus(Venice 1606),disp. 150,cap. 3, no. 23: "Consequens fit, ut ante omne imperium
ante omnem voluntatem, imo ante omne judicium sit regula quaedam harum actionum,
quae suapte natura constet, sicut res omnes suapte natura contradictionem non impli-
cant ; haec autem non potest alia esse quam ipsa rationalis natura ex se non implicans
contradictionem ... Prima igitur lex naturalis in creatura rationali est ipsamet natura,
quatenus rationalis, quia haec est prima regula boni et mali. Ceterum cum ipse Deus
tamquam primum omnium ens, praecedat omnem etiam creaturam, quatenus ex se non
implicat contradictionem, haec lex tamquam in aetema, et prima sui origine in ipsa Dei
natura constituenda est".
53 "Nam
quamvis ratio divina sit mensura omnis recti, non tamen est prima radix et
causa prohibitionis, ex qua malitia oriatur, quia si concesso impossibili intelligeremus
Deum non ita judicare et manere in nobis usum rationis, maneret etiam peccatum, tunc
etiam, ut dicebamus, non semper eo peccatum est, quia intelligitur a Deo ut tale, sed
potius e contra". L.c., disp. 97, cap. 1, no. 3.
54 See E.
Tejero, El matrimonio misterioy signo. Siglos XI Val XVI (Pamplona 1971),p.
483ff.

17
still divine nature and not human nature, and this is so because anything
else would not only be false but also impossible. When judging Vazquez or
any of the other Scholastics who used the hypothesis "si Deus non esset",
one must carefully separate their thought concerning that which really
exists and the hypothesis for which their thought was analyzed with an aim
towards clarification.

3. The hypothesis "etiamsi daremus" of Grotius

The same caution, in my opinion, must be taken with Grotius: what is

important is not the hypothesis, but rather his thought concerning the
relation between God and Natural Law55.
The hypothesis "etiamsi daremus" in itself did not present anything new.
It can now be stated that it was quite commonplace in -the preceding
Scholastic. And even to maintain the validity of Natural Law in the
supposed event that God did not exist nor govern over anything - the
equivalent of his being uninterested in human matters - is not new either.
Therefore, is there nothing new with respect to Grotius? Was he a simple
follower of the Scholastics? I do not think so. On the contrary, I believe that
there is enough novelty so as to consider Grotius as an innovator.
In my view, the novelty resides in that Grotius does not establish any
relation of causal exemplarity - analogy and participation - between
divine nature and human nature, between God's reason and man's.
Grotius, in his Number 12 of the Prolegomena to De lure Belli ac Pacis,
ss DJBP,
proleg. nos. 11and 12, ed. P. C. Molhuysen, Lugduni Batavorum 1919),p. 7:
11. Et haec quidem quae iam diximus, locum aliquem haberent etiamsi daremus, quod
sine summo scelere dari nequit, non esse Deum, aut non curari ab eo negotia humana:
cuius contrarium cum nobis partim ratio, partim traditio perpetua, inseverint; confirment
vero et argumenta multa et miracula ab omnibus saeculis testata, sequitur iam, ipsi Deo,
ut opifici et cui nos nostraque omnia debearemus, sine exceptione parendum nobis esse,
praecipue cum is se multis modis et optimum et potentissimum ostenderit, ita ut sibi
obedientibus praemia reddere maxima, etiam aetema, quippe aeternus ipse, possit, et
voluisse credi debeat, multoque magis si id disertis verbis promiserit: quod Christiani
indubitata testimoniorum fide convicti credimus.
12. Et haec iam alia iuris origo est praeter illam naturalem, veniens scilicet ex libera Dei
voluntate, cui nos subiici debere intellectus ipse noster nobis irrefragabiliter dictat. Sed et
illud ipsum de quo egimus naturale ius, sive illud sociale, sive quod laxius ita dicitur,
quamquam ex principiis homini internis profluit, Deo tamen asscribi merito potest, quia
ut talia principia in nobis existerent ipse voluit: quo sensu Chrysippus et Stoici dicebant
iuris originem non aliunde petendam quam ab ipso love, a quo lovis nomine ius Latinis
dictum probabiliter dici potest".

18
that is, in the Number following the one which contains the hypothesis
"etiamsi daremus", establishes a link between God and Natural Law. He
does not, therefore, tear Natural Law away from God. Nonetheless, the
link between Natural Law and God is established in nothing other than
God's free will. This is the key point. For Grotius, Natural Law has two
origins: "Et haec iam alia iuris origo est praeter illam naturalem, veniens
scilicet ex libera Dei voluntatem". Natural Law "ex principiis homini
internis profluit", derives from human nature. Now then, these principles
can be imputed to God "quia ut talia principia in nobis existerent ipse
voluit". Divine reason does not appear at all, nor does God's nature, as the
exemplary cause of human reason or of human nature. Certainly God
freely willed, when he freely created man, that human nature should flow
from those principles, but those principles do not appear as a reflection of
God's reason or of God's nature. Therefore, human nature although it does
not appear to be unlinked to God, does appear to be positively unlinked to
Him. Once the principle of exemplarity and analogy is broken, no nexus of
ontological necessity between God and human nature is established. As a
consequence, the hypothesis "etiamsi daremus" is now not to be consider-
ed impossible, but rather false, because if human nature is not a par-
ticipation and a reflection of God's nature (the same can be said of reason),
it not only comes out to be imaginable, but even to be intelligible in the
hypothesis "etiamsi daremus". Without causal exemplarity - without
analogy and participation - there is no impossibility in the hypothesis
"etiamsi daremus", only falseness, a fact which induces Grotius to write a
few lines to prove that the existence of God is a certain truth which can be
known by arguments, miracles and the Christian Faith. Neither Gregorius
of Rimini nor V£zquez saw the need to do this because in their case it was
unnecessary. What comes out is a conception of Natural Law in which it
appears as being completely intelligible in itself and in its fundaments
without a necessary - ontologically necessary - reference to God.
What can have been the origin of Grotius's thought? In my opinion, we
only need to offer a reference to the Protestant Reformation. Protestantism
reaffirmed the rejection of the analogia entis - which was already con-
tained in Voluntarism and in Ockham's Nominalism - and the free divine
decision to save man through Faith and not through works. Natural Law
hence came to be something merely of this world which, although it
derived from God's free will, did not come from the imitation of God which
the analogia entis supposes.
Parting from the analogia entis - the most perfect expression of which is
Saint Thomas of Aquinas' Theory of Participation - Natural Law is, by its

19
essence, analogized, and its existence is not fully intelligible if it is not in the
light of the Being which analogizes it, God (Eternal Law). With Grotius
Narural Law would not need the analogizer in order to be fully intelligible.
That Natural Law is or is not a mandate of God transforms itself into a fact,
not an ontological necessity.
To end, the only thing remaining is to see if Natural Law has been
intelligible - in itself and in its fundament - for the juridical culture which
has lost the notion of the analogia entis and has built itself up according to
Laicism. What the facts show is that Natural Law has either been denied or
else it has been understood as something very different from what was
European tradition until the Eighteenth Century. It has been interpreted as
relative values, nature of things, logica and objective structures, life
relationships (Lebensverhdltnis), etc. All these notions are far removed
from the ius naturale of the Roman jurists and of European tradition prior
to Grotius. Is this a simple historical fact or is it the logical evolution of the
Grotian novelty? This is the question, the big question of the study of
Natural Law.

20