Bryn Mawr Classical Review

Benjamin Straumann, Roman Law in the State of Nature. The Classical Foundations of Hugo Grotius' Natural Law. Ideas in context, 108. Cambridge: Cambridge University Press, 2015. Pp. xvi, 257. ISBN 9781107092907. $99.00.

Reviewed by Knud Haakonssen, Universität Erfurt; University of St. Andrews (k.haakonssen@gmail.com)

Version at BMCR home site

Preview

One of the pleasures of scholarship is to be criticised by a colleague who has simply done a particular job better than most others. By that token the book under review should be the cause of much joy among Grotius scholars. I have certainly enjoyed it. Nearly everyone who has written about Grotius—both recently and not so recently—stands corrected in some way in Benjamin Straumann's excellent study, but it is telling that it is impossible to characterise his criticism in clear-cut oppositional terms. He has found ways of using elements from nearly all of the readings that he also criticises, so that the idea of constructive criticism assumes striking significance in his work.

The interpretation of Grotius has long been one of the most hotly contested topics in the intellectual history of early modern and modern Europe. He is most widely known as the 'father' (or 'grandfather') of modern international law, but both positivists and natural lawyers have claimed him, or some aspect of him. Historians of medieval thought have generally found him to be little more than a late, more or less opportunistic borrower of scholastic goods, while early-modernists have accepted him as an innovator while disagreeing widely over what his novelty consisted in. He has been seen quite differently in different disciplines; historians of political thought have read his natural law as a contribution to political theory in the line of Hobbes, Locke and their successors; legal historians, especially in Grotius' homeland, have often seen him as primarily a civil lawyer; historians of early modern politics and religion have emphasised his natural law as a secularising influence and as the basis for ecumenical efforts.

Straumann's interpretation is of relevance to all of these interests in Grotius, but it is based on a line of argument that in many ways is original. The core of Straumann's case is that Grotius used a wide range of ideas in Roman law, Stoic ethics (especially in Cicero) and rhetoric, to build a theory of subjective natural rights that pertained to persons, both individual and collective, outside of all political institutions, so that the state of nature in fact had a juridical structure that was distinctly Roman in character. Grotius did so originally to meet the needs of the Dutch Verenigde Oost-Indische Compagnie in defending its trading and associated privateering activities in the East Indian seas. This was his De jure praedae of which only the famous twelfth chapter was published at the time, as Mare liberum. Later he developed his argument into the full- scale systematic natural law in De iure belli ac pacis.

Grotius' idea of natural law was deeply Ciceronian, according to Straumann. The law's ultimate origin was in God but was manifested in human nature's rationality and sociability. Not the divine origin but the necessity of right reason made natural law obligatory, and it was in that sense a 'secular' theory. Grotius also derived the method of 'proof' of natural law from well- known classical sources, namely the rhetoricians and especially Cicero and Quintilian. Here he found the basic distinction between deduction from certain (self-evident) first principles and argument from testimony, a distinction also formulated under influence from Aristotle as the a priori and the a posteriori methods of proof. Straumann links the arguments from the consensus of ancient historians, philosophers and lawyers closely to the analysis in Quintilian, pointing out that in arguing from consensus Grotius was trying rhetorically to refute the argument from the lack of consensus by the sceptic Carneades against the existence of a universal natural law. Recognising that this would hardly still sceptical doubts, Grotius saw his a priori method as decisive.

This leads to Straumann's important analysis of the first principles of human nature that should serve as the ground of deductive proof that an action was naturally just. Stressing that Grotius' naturalism is profoundly different from both Aristotelian and early-Stoic eudaimonism, Straumann argues that Grotius achieves a rule-bound ethics based on the notion of oikeiosis in later Stoicism, especially Cicero, from whom he accepts the idea that practical judgment naturally involves two layers, or steps. Put simply, there is attraction to what comes 'first in nature', and there is rational judgment of the over-all order and harmony of actions. The former is typically anything desired for self-preservation, the latter the honestum that is the object of natural law. Straumann rejects Richard Tuck's well-known thesis that Grotius was concerned to establish a minimal natural morality centered on self-preservation as the way to reject scepticism, understood as contemporary moral relativism in Montaigne, Charron et al. Rather, Straumann maintains, Grotius picked up a different Carneadean dispute. In his case against a natural standard of justice, the sceptic had argued that Roman imperialism was on a par with piracy. This Cicero had rejected by arguing that natural law legitimised Roman policy.

Explicitly drawing on this argument, Grotius developed his theory of natural law to reject criticism of Dutch expansion in South-East Asia. Grotius developed the Stoic material to argue that issues of our desires, what comes 'first in nature' such as self-preservation and its pursuit by force, were morally indifferent, adiaphora, and shared by all of nature. Only when questions of their rationality could be raised, did they become matters of justice. Such questions concerned the compatibility of actions with the rational sociability of human nature, a universal feature of humanity. In other words, while human life, like all other forms of life, presupposed the pursuit of the means to self-preservation, this pursuit was a matter of justice only when questions arose about its compatibility with human sociability. In order to describe this compatibility Grotius used Roman juridical language; it required the maintenance of the rights, jura, of individuals. While self-preservation and its means were morally indifferent in themselves, the right to pursue them was the criterion of justice. Straumann points out how Grotius adopts one aspect of Aristotle's theory of justice, namely corrective justice, as an alternative description of his own idea of natural law, while distributive justice falls entirely outside natural law and becomes a matter of politics and ethics. This interesting discussion of the field of justice is one of several places where one misses an engagement with Ian Hunter's recent interpretation of Grotius as judicial casuist.

The naturalness of natural law meant that it applied in the absence of political authority, in the state of nature between natural as well as corporate persons. Straumann stresses that for Grotius the state of nature has a juridical structure and is thus fundamentally different from that of Hobbes, a point already implied by the argument that for Grotius self-preservation is not in itself a subject of justice. In this dispute with Richard Tuck, Straumann also maintains that Grotius did not transfer his idea of the state of nature from inter-state relations to inter-personal relations. To the contrary, he suggests that the Grotian idea combines two principles of Roman private law, namely that the things of the world are naturally equally open to all to appropriate, and that what cannot be possessed cannot become private property. To this came the moral principle in Cicero that what cannot be possessed should be equally open to use by all. While Hobbes' state of nature was (mostly) a hypothetical condition, Grotius' was the de facto situation of those parts of the world that had not been or could not be appropriated, especially the high seas. This leaves Straumann's Grotius with two major questions, where do the rights come from that are the defining objects of the laws of nature? And in what sense can the maintenance of those laws and rights be said to be a legal order? Also those questions were answered by means of Roman sources, so Straumann.

People have natural rights naturaliter, said Grotius; they are inherent, says Straumann. Yet the whole analysis is aimed at showing how such rights arise, and here Straumann in a bravura performance shows how Grotius accounts for the rights to self-defence, to private property and to the benefit of contract by using a range of materials from Cicero, Seneca and the Roman law of remedies. Specifically, Grotius argued that although property and contractual relationships were voluntary additions to the purely natural person, they were nevertheless subject to natural law, since the individual could be injured in these matters. The natural rights of individuals (natural and corporate) could therefore be defined as the objects of just war and of justified complaints analogous to those under Roman private law. Since this juridical structure is natural, i.e. exists independently of political authority, it can only be considered a legal order because there is a means of enforcing it. This is the right to punish transgressions, and Grotius suggests that this is a natural right and one that belongs to everyone, not just the person injured. As he agrees with Tuck, this coincidence between Grotius and Locke is remarkable.

2.000 words do not do justice to the riches of Straumann's use of classical sources to interpret Grotius, but his ambition goes beyond this. Repeatedly but especially in the Epilogue he maintains Grotius' importance for the further development of moral, political and legal thought. Understandably Straumann does not claim any originality for this quick overview, but considering the historical sensibility in the main part of the work, it it remarkable how willing he is to accept a direct line across the centuries from Grotius to the contemporary case for human rights. In fact, he suggests that his book has shown that something like Grotius' 'Roman' natural law is necessary to provide the edifice for international law. Positivism alone has never sufficed, nor can it, he maintains. In the end the reader thus realises that this is not, or not simply, an empirical account of the historical articulation of certain ideas, but also a philosophical history of the trans-historical value of some of these ideas. However, whether or not positivism has sufficed or will suffice for international law would seem to be empirical questions that have to be settled by something akin to Grotius' a posteriori method. This ambiguity in the type of history Straumann offers us brings us back to the ambiguity in his Grotius that I indicated earlier: Are natural rights 'inherent' in human nature, or do they 'arise'? Straumann never faces up to this question, but his actual account (whose interpretative valuable is beyond dispute) does not serve his philosophical genealogy and moral cause well. His argument is that rights arise through recognition by others in processes that are to be understood in analogy with judicial procedure or its equivalent, just war. But this means that rights are subject to the circumstances in which they are being allocated; they have a history, in this case a Roman history. In such histories there may be general features, but these are at most empirical generalities, not universal and necessary laws. This was precisely what Adam Smith self-consciously did with Grotius. He broadened Grotius' judicial process of recognition to the theory that human personality itself arises through the social relations of mutual observation, so that humanity could never be conceived to be in any such condition as the state of nature. Since Straumann rightly emphasises Smith as an important link in the Grotian legacy, it is a pity that he does not see that Smith more than anyone blew up the universalist claim of Grotius' natural law. In fact, he called Grotius a casuist.

Straumann's faith in a universalist Grotian gospel has led him into a dubious philosophical genealogy, but this veneer should not be allowed to conceal the solid scholarly timber of this fine book. Rarely have Cicero or the Digest seemed more exciting than when read through Straumann's Grotius.