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THE SUBJECT OF SOVEREIGNTY: LAW, POLITICS AND MORAL REASONING IN HUGO GROTIUS

Published online by Cambridge University Press:  26 February 2019

ANNABEL BRETT*
Affiliation:
Faculty of History, University of Cambridge E-mail: asb21@cam.ac.uk

Abstract

Hugo Grotius’s account of sovereign power in De iure belli ac pacis occupies a contested place in recent genealogies of modern sovereignty. This article takes a fresh approach by arguing that Grotius’s legal arguments do not do their work alone. They function within a broader horizon of what he calls “morals,” a field of reasoning that has debts to scholastic moral theology and Aristotelian moral science. Grotius's conception of sovereignty represents a modulation between law and “morals,” which allows him both to separate his scientific jurisprudence from the science of politics and nevertheless to reply to the political scientists on their own ground. The context of “morals,” however, is not narrowly political but inter-political, generating a potential tension between popular aspirations to sovereignty and the international order. Grotius’s “moral” handling of the issue offers an invitation to reflect on our current preoccupation with much the same concerns.

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Articles
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Copyright © Cambridge University Press 2019

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Footnotes

This paper was originally written for the Hugo Grotius's Place in the History of Moral and Political Philosophy workshop (KU Leuven, April 2017). I am grateful to all those present for their perceptive and stimulating comments, and likewise to subsequent audiences at Vanderbilt, London and Cambridge. My thanks in particular to the editors of Modern Intellectual History, especially Darrin McMahon, and to the two reviewers for Modern Intellectual History, from whose exceptionally acute and learned reports this paper has benefited enormously.

References

1 Tuck, Richard, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge, 2016), 6386Google Scholar. Hoekstra, Kinch, “Early Modern Absolutism and Constitutionalism,” Cardozo Law Review 34 (2013), 1079–98Google Scholar, considers the distinction in Bodin and Hobbes compared to early modern authors other than Grotius. See further the exchange between Tuck and Hoekstra: Tuck, R., “Hobbes and Democracy,” in Brett, Annabel and Tully, James with Hamilton-Bleakley, Holly, eds., Rethinking the Foundations of Modern Political Thought (Cambridge, 2006), 171–90CrossRefGoogle Scholar: and K. Hoekstra, “A Lion in the House: Hobbes on Democracy,” in ibid., 191–218. For Bodin in particular see now Nicholls, Sophie, “Sovereignty and Government in Jean Bodin's Six Livres de la République (1576),” Journal of the History of Ideas 80/1 (2019), 4766CrossRefGoogle Scholar.

2 Skinner, Quentin, “The Sovereign State: A Genealogy,” in Kalmo, Hent and Skinner, Quentin, eds., Sovereignty in Fragments: The Past and Future of a Contested Concept (Cambridge, 2010), 2646CrossRefGoogle Scholar.

3 Skinner, Quentin, From Humanism to Hobbes (Cambridge, 2018), 42–3CrossRefGoogle Scholar.

4 Lee, Daniel, Popular Sovereignty in Early Modern Constitutional Thought (Oxford, 2016), 255–71CrossRefGoogle Scholar. For a thorough-going recent reconsideration of the idea popular sovereignty see Bourke, Richard and Skinner, Quentin, eds., Popular Sovereignty in Historical Perspective (Cambridge, 2016)CrossRefGoogle Scholar.

5 Brett, Annabel S., Changes of State: Nature and the Limits of the City in Early Modern Political Thought (Princeton, 2011), 134–8Google Scholar; more generally Brett, Political thought,” in Scott, Hamish, ed., The Oxford Handbook of Early Modern Europe, vol. 2 (Oxford, 2015), 2955, at 35–6Google Scholar.

6 See Brett, Annabel, “The Space of Politics and the Space of War in Hugo Grotius's De iure belli ac pacis,” Global Intellectual History 1 (2016), 3360, at 41CrossRefGoogle Scholar. I argue that Grotius's terminology for the political body is fluid between gens (“nation”), populus (“people”), civitas (“political community”), respublica (“commonwealth”) and ultimately exercitus (“army”). There is some aspectival difference involved, but it takes all of them together to capture the nature of the entity he is talking about.

7 See, in addition to the works already cited, Dauber, Noah, State and Commonwealth: The Theory of the State in Early Modern England, 1549–1640 (Princeton, 2016)Google Scholar; Kinch Hoekstra, “Athenian Democracy and Popular Tyranny,” in Bourke and Skinner, Popular Sovereignty, 15–51; Melissa Lane, “Popular Sovereignty as Control of Office-Holders: Aristotle on Greek Democracy,” in ibid. 52–72; Smith, Sophie, “Democracy and the Body Politic from Aristotle to Hobbes,” Political Theory 46/2 (2016), 167–96CrossRefGoogle Scholar.

8 See Benton, Lauren, “Possessing Empire: Iberian Claims and Interpolity Law,” in Belmessous, Saliha, ed., Native Claims: Indigenous Law against Empire, 1500–1920 (Oxford, 2011), 1940CrossRefGoogle Scholar; Benton, Lauren and Clulow, Adam, “Empire and Protection: Making Interpolity Law in the Early Modern World,” Journal of Global History 12/1 (2017), 7492CrossRefGoogle Scholar; Benton, and Clulow, , “Legal Encounters and the Origins of Global Law,” in Bentley, Jerry H., Subrahmanyam, Sanjay and Wiesner-Hanks, Merry, eds., The Cambridge World History, vol. 6, part 2 (Cambridge, 2015), 80100CrossRefGoogle Scholar.

9 The point is underlined in Tuck, Sleeping Sovereign, 84.

10 Orford, Anne, International Authority and the Responsibility to Protect (Cambridge, 2011), 1–41, at 32CrossRefGoogle Scholar.

11 Grotius, Hugo, De iure belli ac pacis (henceforth IBP), ed. Barbeyrac, Jean (Amsterdam, 1720), Prolegomena, n. 52Google Scholar. I have used this edition for ease of collation with the readily available eighteenth-century English translation which is edited by Richard Tuck as The Rights of War and Peace (Indianapolis, 2005), although all translations here are my own. The Barbeyrac edition is not always accurate, and I have from time to time signaled a divergence from editions overseen by Grotius.

12 I make this point at greater length in ‘The Matter, Forme, and Power of a Common-Wealth’: Thomas Hobbes and Late Renaissance Commentary on Aristotle's Politics,” Hobbes Studies 23 (2010), 72102CrossRefGoogle Scholar.

13 See, for example, Schaffner, Tobias, “The Eudaemonist Ethics of Hugo Grotius (1583–1648): Pre-modern Moral Philosophy for the 21st Century,” Jurisprudence 7/3 (2016), 478522CrossRefGoogle Scholar; on the opposing side, Straumann, Benjamin, “Adam Smith's Unfinished Grotius Business, Grotius's Novel Turn to Ancient Law, and the Genealogical Fallacy,” Grotiana 38 (2017), 211–28CrossRefGoogle Scholar; and Tuck, Richard, “The ‘Modern’ Theory of Natural Law,” in Pagden, Anthony, ed., The Languages of Political Thought in Early Modern Europe (Cambridge, 1987), 99119CrossRefGoogle Scholar.

14 Mautner, Thomas, “From Virtue to Morality: Antoine le Grand (1629–99) and the New Moral Philosophy,” Jahrbuch für Recht und Ethik 8 (2000), 209232Google Scholar, rightly distinguishes between “morality” and virtue ethics but suggests too sharp a contrast between the two in Grotius, foreshadowing Pufendorf. For the interplay between law and virtue in Grotius see Mortimer, Sarah, “Law, Justice and Charity in a Divided Christendom, 1500–1625,” in Amorosa, Paolo, Salmones, Mónica Rovira-García and Koskenniemi, Martti, eds., International Law and Religion: Historical and Contemporary Perspectives (Oxford, 2017), 25–42, at 34–40Google Scholar. An important recent article that also foregrounds the language of the moral in Grotius's thought, though from a different perspective, is Ertz, Stefanie, “Hugo Grotius's Hermeneutics of Natural and Divine Law,” Grotiana 37 (2016), 6194CrossRefGoogle Scholar; and see now likewise Martti Koskenniemi, “Imagining the Rule of Law: Rereading the Grotian Tradition,” European Journal of International Law, forthcoming.

15 See Brett, Annabel, “Human Freedom and Jesuit Moral Theology,” in van Gelderen, Martin and Skinner, Quentin, eds., Freedom and the Construction of Europe, vol. 2 (Cambridge, 2012), 926Google Scholar; Chene, Dennis Des, Physiologia: Natural Philosophy in Late Aristotelian and Cartesian Thought (Ithaca and London, 1996), 168211Google Scholar; Murray, Michael J., ‘Pre-Leibnizian Moral Necessity’, Leibniz Review 14 (2004), 164CrossRefGoogle Scholar.

16 Gottfried Wilhelm Leibniz, Theodicy, §182; I owe the reference to Mautner, “From Virtue to Morality,” 231.

17 See the discussion in Pitts, Jennifer, Boundaries of the International: Law and Empire (Cambridge, MA, 2018), 7981CrossRefGoogle Scholar.

18 Gentili, Alberico, De iure belli libri tres, ed. Holland, T. E. (Oxford 1927), I.12, 55Google Scholar; Bacon, Francis, Charge against William Talbot, in The Works of Francis Bacon, ed. Spedding, James, Ellis, Robert Leslie and Heath, Douglas Denon, vol. 12 (London: William Ball, 1838), 512, at 9Google Scholar.

19 IBP III.1.2.1.

20 IBP II.2.5. I discuss these examples further in Brett, “The Space of Politics,” 43.

21 See Sampson, Margaret, “Laxity and Liberty in Seventeenth-Century English Political Thought,” in Leites, E., ed., Conscience and Casuistry in Early Modern Europe (Cambridge, 1988), 72118, at 78CrossRefGoogle Scholar.

22 Aristotle, , Nicomachean Ethics, ed. and tr. Crisp, R. (Cambridge, 2000), Book I, chap. 3, 45CrossRefGoogle Scholar.

23 Gentili, De iure belli, I.1, 10.

24 IBP II.23.1–2. This chapter explicitly juxtaposes the most up-to-date humanist Aristotelian scholarship with scholastic moral theology.

25 IBP III.3.2.1–3.

26 See Lines, David A., Aristotle's Ethics in the Italian Renaissance (ca. 1300–1650): The Universities and the Problem of Moral Education (Leiden, 2002), chap. 7Google Scholar. The passage in question is Nicomachean Ethics, Book I, chap. 4, 6 (tr. Crisp): “Let us not forget, however, that there is a difference between arguments from first principles and arguments to first principles … For, while we should begin from things known, they are known in two senses: known by us, and known without qualification. Presumably we have to begin from things known by us … For the first principle is the belief that something is the case, and if this is sufficiently clear, he will not need the reason why as well.”

27 Piccolomini, Francesco, Universa philosophia de moribus (Venice, 1583)Google Scholar, Introductio, Cap. 21–4, 31–2.

28 Gentili, De iure belli, I.1, 1.

29 Grotius's citation in fact dates back to his earlier work The Law of Prize. See Grotius, Hugo, Commentary on the Law of Prize and Booty, ed. van Ittersum, M. (Indianapolis, 2006), chap. 7, 127Google Scholar. The marginal reference in both cases is to Piccolomini's “Civil Philosophy Lib. VI, cap. XXI,” i.e. Universa philosophia de moribus, Gradus VI, cap. 21, f. 354. The reference to “Civil Philosophy” is explained by the fact that, for Piccolomini, moral philosophy just is civil philosophy, and his headings reflect this fact. See below.

30 Obertus Giphanius (van Giffen, Hubert), Commentarii in decem libros Aristotelis ethicorum ad Nicomachum (Frankfurt, 1608), Lib. I, cap. 4, 29Google Scholar.

31 Magirus, Ioannes, Corona virtutum moralium (Frankfurt, 1614), 3032Google Scholar.

32 See Tuck, Sleeping Sovereign, 23–5 (for Bodin), 70–83 (for Grotius).

33 IBP I.3.11.2: “rerum moralium natura ex operationibus cognoscitur, quare quae facultates eosdem effectus habent, eodem nomine nuncupandae sunt.”

34 Gentili, De iure belli, I.16.

35 Piccolomini, Universa philosophia, Gradus V, cap. 38, ff. 293–4; Van Giffen, In libros ethicorum, Lib. VI, cap. 8, 489. See further below.

36 IBP, Prolegomena, nn. 40–45.

37 For an overview, including Grotius, see Gordley, James, The Jurists: A Critical History (Oxford, 2013), 111–40CrossRefGoogle Scholar. Straumann, Benjamin, Roman Law in the State of Nature: The Classical Foundations of Hugo Grotius's Natural Law (Cambridge, 2015), 103–29CrossRefGoogle Scholar, stresses the anti-Aristotelianism.

38 Grotius, Commentary on the Law of Prize, chap. 1, 17. The Latin text can be found in Grotius, Hugo, De jure praedae commentarius, 2 vols. (Oxford 1950), 2Google Scholar: collotype reproduction of the original Latin manuscript.

39 IBP, Prolegomena, n. 30. For naturalia as contrasted with the products of human free will see Straumann, Roman Law, 45–6, and 66–70 for the a priori argument.

40 IBP I.1.10.1, I.1.12.1, “convenientia aut disconvenientia cum natura rationali ac sociali.” Appreciating the importance of this addition, Barbeyrac inserted the words “and social” (ac sociali) into the first of the two passages as well. The debt to Vázquez is probably via Suárez's own discussion of natural law, though Grotius elsewhere referred to him directly. For the discontinuity in Gabriel Vázquez between ius naturale and all other forms of law (lex) see Brett, Annabel, “Later Scholastic Philosophy of Law,” in Miller, Fred D. and Biondi, Carrie-Ann, eds., A Treatise of Legal Philosophy and General Jurisprudence, vol. 6, A History of the Philosophy of Law from the Ancient Greeks to the Scholastics (Dordrecht, 2015), 335–75, at 361–2Google Scholar.

41 IBP I.1.3.1.

42 IBP I.1.4.

43 The continuity between the scholastic and the Grotian concept of rights is underlined in Koskenniemi, Martti, “International Law and the Emergence of Mercantile Capitalism: Grotius to Smith,” in Chetail, Vincent and Haggenmacher, Peter, eds., The Roots of International Law (Leiden, 2013), 137Google Scholar.

44 Alberico Gentili, De iure belli, I.1, citing Aristotle's Rhetoric. On the close connection between moral and rhetorical argument in the Renaissance see Kessler, Eckhard, “The Method of Moral Philosophy in Renaissance Humanism,” in Lines, David A. and Ebbersmeyer, Sabrina, eds., Rethinking Virtue, Reforming Society: New Directions in Renaissance Ethics, c.1350–c.1650 (Turnhout, 2013), 107–29CrossRefGoogle Scholar.

45 IBP II.16.1.1–2. See Skinner, Quentin, Forensic Shakespeare (Oxford, 2014), esp. 226–8Google Scholar, for the operation of conjecture in forensic rhetoric.

46 Piccolomini, Universa philosophia, Introductio, cap. 11, f. 14; Van Giffen, In libros ethicorum, Lib. I, cap. 2, and Lib. VI, cap. 8, 491.

47 Van Giffen, In libros ethicorum, Lib. VI, cap. 8; Piccolomini, Universa philosophia, Gradus V, cap. 37.

48 Piccolomini, Universa philosophia, f. 292; Piccolomini, Introductio, cap. 11, f. 14.

49 IBP, Prolegomena, n. 57.

50 IBP I.3.6.1.

51 In the 1625, 1631 and 1646 editions, Grotius's reference is consistently to Politics IV.4. In Barbeyrac's edition the citation is tacitly corrected, I think rightly, to Politics IV.14, the opening of which makes precisely this tripartite distinction. It should be noted, however, vis-à-vis the second “part,” that Aristotle refers to the nature and competencies of magistrates as well as the responsibility to select them. Grotius's focus specifically on the appointment of magistrates is itself an index of the Bodinian background.

52 Bodin, Jean, Method for the Easy Comprehension of History, trans. Reynolds, Beatrice (New York, 1969), Book VI, 155–7Google Scholar; discussed in Tuck, Sleeping Sovereign, 17–18; and Lane, “Popular Sovereignty as Control of Office-Holders,” 68–9. Lane argues that Bodin only gradually came to put legislation as the first mark of sovereignty.

53 IBP I.3.6.1.

54 Van Giffen, In libros ethicorum, Lib. VI, cap. 8, 490; Giphanius, Obertus, Commentarii in politicorum opus Aristotelis (Frankfurt, 1608), Lib. IV, cap. 14, 490–93, 500Google Scholar.

55 John Case, Speculum moralium quaestionum (Frankfurt, 1589), 426. For Case in the context of Elizabethan politics see Dauber, State and Commonwealth, chap. 3.

56 Tuck, Sleeping Sovereign, p. 85.

57 IBP I.3.7.1; addita summitate is at IBP I.3.17. Grotius here glossed summitas with the Greek term to anupeuthunon, “unaccountability.” For this terminology in Grotius and other early modern writers see Hoekstra, “Athenian Democracy and Popular Tyranny,” 6–8.

58 Grotius, Commentary on the Law of Prize, chap. 2, 36–44; collotype reproduction, ff. 10′–12, 13.

59 See, for example, the Jesuit Luis de Molina in his De iustitia et iure (Mainz, 1614; first published 1593–1600), Tract. V, Disp. 2 and 3, who argues for a broad definition of supreme jurisdiction that includes legislation, appointing public officials, and other functions. Likewise, Francisco Suárez saw supreme power as convertible with supreme jurisdiction. Suárez, Francisco, De legibus ac Deo legislatore, ed. Vicente, Luciano Pereña, 8 vols. (Madrid, 1971–81), 5: Lib. III, cap. 1, nn. 8–9Google Scholar.

60 Grotius, Hugo, De imperio summarum potestatum circa sacra, ed. van Dam, Harm-Jan, vol. 1 (Leiden, 2001), chap. 1, 160–62Google Scholar. The importance of this work in the development of Grotius's thought has recently been reasserted by Ertz, “Hugo Grotius's Hermeneutics,” 63, 77–86.

61 The term architektonikē here is linked with quotations from Plato and Philo, the effect of which is to suggest that this is not the specific architektonikē of Nicomachean Ethics Book VI, but is a reference to Aristotle's use of the term in Book I, in which politikē or political science in general is characterized as architektonikē in respect of all others.

62 Ertz, “Hugo Grotius's Hermeneutics,” 85.

63 The reference to Suárez is almost certainly to his handling of the question whether the acceptance of the people is necessary to make law. Suárez, De legibus, Lib. III, cap. 19, n. 6, argued that this was only the case in a strict democracy. In any other form of constitution, the necessity to involve the estates does not represent a sharing of sovereign power between the king and the people; rather, it is the king and the estates together which form the sovereign.

64 Hugo Grotius, Commentarius in Theses XI, ed. Peter Borschberg, trans. P. Burton, in Borschberg, Peter, Hugo Grotius’ “Commentarius in Theses XI”: An Early Treatise on Sovereignty, the Just War, and the Legitimacy of the Dutch Revolt (Bern, 1994), 228–9Google Scholar. I share the translator's slight unease (“Foreword” to the English Translation, 205) with the translation of actus summae potestatis as “marks of sovereignty,” preferring his alternative “functions,” although I entirely concur with the editor about the engagement with Bodin. The reference to Vitoria is given as De potestate civili, n. 14.

65 See Borschberg, Hugo Grotius’ “Commentarius in Theses XI”, 129–35.

66 IBP I.3.7.1.

67 A classic account is given in Skinner, Quentin, Foundations of Modern Political Thought, vol. 2, part 2 (Cambridge, 1978)Google Scholar; commentary in Annabel Brett, “Scholastic Political Thought and the Modern Concept of the State,” in Brett and Tully, Rethinking the Foundations, 130–48, esp.137–40.

68 The question of the localization of the soul in the body was discussed by both humanist and scholastic philosophers commenting on Aristotle's De anima. The closest I have found to Grotius here is Zabarella, Jacopo, in his Liber de partitione animae, in De rebus naturalibus libri XXX (ed. postrema, Frankfurt, 1607), 727–63, cap. 14Google Scholar, arguing that the faculty of sight is originaliter (by way of origin) in the whole body which is the location of the entire soul, but in the eye alone subiective (in terms of its subject).

69 Brett, Changes of State, 134–38, 199–200, “The space of politics,” ibid., 36–42.

70 I.3.8.6. Grotius in 1625 listed only the first three, so in subsequent editions his sense of exclusion deepened to include adolescents.

71 IBP I.3.11.1; cf. I.3.8.12.

72 IBP I.3.19.

73 IBP I.3.10.1–3.

74 This passage, in the Latin version of 1586, is discussed in Tuck, Sleeping Sovereign, 28–30, although the French version of 1576 seems to me to draw the contrast more clearly.

75 IBP II.9.8.1–2.

76 IBP I.3.17.1.

77 See above for the contrast with De imperio, in which this scenario is not a case of division.

78 IBP I.3.17.2.

79 IBP I.3.11.1–3.

80 On this point I must therefore disagree with Lee, Popular Sovereignty, 270–71, who argues that for Grotius a right of usufruct in the sovereignty is a precarious right, consistent with the liberty of the people. For the distinction see Hoekstra, “Early Modern Absolutism and Constitutionalism,” 1082 n. 9, who points out that Hobbes effectively eliminates it. See also Tuck, Sleeping Sovereign, 90–91, for the vulnerability of the crowned heads of Europe on the Hobbesian (and, more tactfully, the Bodinian) accounts.

81 See Hoekstra, “Early Modern Absolutism and Constitutionalism,” 1085–90, for alternatives in Althusius, Arnisaeus and Besold.

82 IBP III.15.9. If it were too risky to leave them with any political identity, Grotius concluded, at least they could be left with what we would call their cultural identity, their customs and their ways of life. This would nevertheless wipe them out as a civitas in the true sense.

83 See the references in n. 8 above.

84 This is, I think, a key difference of Grotius's theory from that of Pavel, Carmen E., Divided Sovereignty: International Institutions and the Limits of State Authority (Oxford, 2015)Google Scholar, which makes an interesting comparison. As a pragmatic solution, she attempts something similar to Grotian division, using a “principal–agent” model (chap. 2) for the relationship between a people and its divided sovereigns, both domestic and international (meaning international institutions). As she recognizes, this means a people dividing its loyalties, but she argues that this is possible if the people can be brought to think of its domestic institutions “as agents with specific purposes and functions” (ibid., xxvi), hence losing the tension with international institutions which are agents in just the same sense. I think that Grotius would approve the spirit of the exercise, but would think that the principal–agent model makes the political functional all the way down, thereby, effectively, depoliticizing it in his terms.

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