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Beyond Strict Justice: Hugo Grotius on Punishment and Natural Right(s)

Published online by Cambridge University Press:  30 September 2014

Jeremy Seth Geddert
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Abstract

Hugo Grotius is often seen as reducing justice to the systematic protection of individual rights. However, this reading struggles to account for the surprisingly robust place he accords to punishment. An offender cannot plausibly claim punishment as a right, and the right to punish gives little direction about how best to carry out punishment. These difficulties point toward Grotius's little-noticed bifurcation of justice into “expletive” and “attributive” categories. While expletive (or “strict”) justice provides a grounding for the right to punish, its subsequent exercise must be governed by attributive justice. This higher justice considers persons and situations; requires imagination and prudential judgment; looks to the future; aims for the common good; acknowledges the importance of virtue; and never claims perfect solutions. Thus, Grotius's supposedly modern understanding of natural rights is best understood within an account of his specifically political thought—one that acknowledges an overarching framework of classical natural Right.

Type
Research Article
Information
The Review of Politics , Volume 76 , Issue 4 , Fall 2014 , pp. 559 - 588
Copyright
Copyright © University of Notre Dame 2014 

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References

1 See, for instance, Villey, Michel, La Formation de la Pensée Juridique Moderne (Paris: Montchretien, 1975)Google Scholar; Tuck, Richard, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979)Google Scholar; Tuck, Philosophy and Government, 1572–1651 (Cambridge: Cambridge University Press, 1993)Google Scholar; Buckle, Stephen, Natural Law and the Theory of Property: Grotius to Hume (New York: Oxford University Press, 1993)Google Scholar; Haggenmacher, Peter, “Droits subjectifs et système juridique chez Grotius,” in Politique, Droit et Théologie chez Bodin, Grotius et Hobbes, ed. Foisneau, Luc (Paris: Kime, 1997)Google Scholar, and Schneewind, Jerome, The Invention of Autonomy: A History of Modern Moral Philosophy (New York: Cambridge University Press, 1998)Google Scholar.

2 Tuck, Richard, “Grotius and Selden,” in The Cambridge History of Political Thought, 1450–1700, ed. Burns, J. H. (New York: Cambridge University Press, 1991), 506–7, 515–19Google Scholar. For a variation on this specific line of thought, see Villey, Formation, 619–20, or Finnis, John, Natural Law and Natural Rights (New York: Oxford University Press, 1980), 205–8Google Scholar.

3 Tierney, Brian, The Idea of Natural Rights (Grand Rapids, MI: Eerdmans, 2001), 324–42Google Scholar. For an instructive debate, see Tierney, Brian, “Natural Law and Natural Rights: Old Problems and New Approaches,” Review of Politics 64, no. 2 (2002): 389–420Google Scholar, including responses by John Finnis, Douglas Kries, and Michael Zuckert.

4 Haakonssen, Knud, “Hugo Grotius and the History of Political Thought,” Political Theory 13, no. 2 (1985): 241–42, 249–53Google Scholar; Haakonssen, Knud, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (New York: Cambridge University Press, 1996), 26–30, 34–35, 64, 102Google Scholar; Haakonssen, Knud, “Review: The Rights of War and Peace,” Mind 111, no. 4 (2002): 499–502CrossRefGoogle Scholar.

5 O'Donovan, Oliver and O'Donovan, Joan Lockwood, “Hugo Grotius (1583–1645),” in From Irenaeus to Grotius: A Sourcebook in Christian Political Thought (Grand Rapids, MI: Eerdmans, 1999), 787–92Google Scholar; Oliver O'Donovan, “The Justice of Assignment and Subjective Rights in Grotius,” in O'Donovan, Oliver and O'Donovan, Joan Lockwood, Bonds of Imperfection: Christian Politics, Past and Present (Grand Rapids, MI: Eerdmans, 2004)Google Scholar.

6 Stumpf, Christoph, The Grotian Theology of International Law (New York: Walter de Gruyter, 2006)Google Scholar. Several recent treatments are generally consistent with the approach of O'Donovan and Stumpf but do not explore their claims in detail. For example, see Irwin, Terence, The Development of Ethics: A Historical and Critical Study (New York: Oxford University Press, 2007), 88–99Google Scholar; Forde, Steven, “The Charitable John Locke,” Review of Politics 71, no. 3 (2009): 452Google Scholar. For a tentative antecedent, see Cox's, Richard chapter “Hugo Grotius,” in History of Political Philosophy, ed. Strauss, Leo and Cropsey, Joseph (Chicago: University of Chicago Press, 1963), 344–53Google Scholar, which helpfully points out the distinctiveness of Grotius's understanding of punishment as natural rather than conventional.

7 Kelly, J. M., A Short History of Western Legal Theory (New York: Oxford University Press, 1992), 238Google Scholar. There is now a significant literature, particularly associated with the Cambridge School, exploring the apparent progression of Grotius's thought over time. Particular attention is given to the way in which Grotius's works might have served his own interests, first as associate of the Dutch East India company, then as Remonstrant politician, then as exile in Paris. This has led to an explosion of interest in Grotius's de Jure Praedae, written at the age of twenty-one, whose fundamental presuppositions would be substantively altered as Grotius underwent a practical education in politics and began publishing in earnest in the 1610s. For the purposes of this study, I focus on Grotius's mature thought in the 1632 edition of DJB, his final major political work. DJB contains Grotius's only major study of punitive war, as well as his most explicit and extensive (if not most profound) treatment of expletive and attributive justice. Works tracing the historical development of (and influences on) Grotius's thought include Tuck, Richard, Philosophy and Government, 1572–1651, 157–70, 176–90Google Scholar; Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), 78–108Google Scholar; Van Dam, Harm-Jan, “de Imperio Summarum Potestatum Circa Sacra,” in Hugo Grotius—Theologian, ed. Meyjes, G. H. M. Posthumus et al. (Boston: Brill, 1994), 19–40Google Scholar; Brett, Annabel, “Natural Right and Civil Community: The Civil Philosophy of Hugo Grotius,” Historical Journal 45, no. 1 (2002): 31–51Google Scholar; Van Ittersum, Martine Julia, Profit and Principle: Hugo Grotius, Natural Rights Theories, and Dutch Power in the East Indies (Boston: Brill, 2006)CrossRefGoogle Scholar.

8 O'Donovan and O'Donovan, “Hugo Grotius,” 791.

9 Terumi, Furukawa, “Punishment,” in A Normative Approach to War: Peace, War, and Justice in Hugo Grotius, ed. Yasuaki, Onuma (New York: Oxford University Press, 1993), 221–43Google Scholar. Salter, John, “Sympathy with the Poor: Theories of Punishment in Hugo Grotius and Adam Smith,” History of Political Thought 20, no. 2 (1999): 205–24Google Scholar offers a careful (if short) reading of Grotius on punishment, one that is more attentive to the concepts of expletive and attributive justice discussed below. This study will expand on his observations that only violations of expletive justice can be punished, due to the importance of freely willed virtue (see 206–11). In his limited space, Salter does not expand on how the two types of justice are related to each other or address the implications for international relations, nor does he identify the extent of Grotius's debts to Aristotle. Forde, Steven, “Hugo Grotius on Ethics and War,” American Political Science Review 92, no. 3 (1998): 643–47CrossRefGoogle Scholar valuably treats elements of war in light of the distinction between positive law and natural justice, without drawing further distinctions within the category of natural justice.

10 Tuck's dismissal is more nuanced: he deems attributive justice nonjusticiable, and thus irrelevant to politics. See Tuck, The Rights of War and Peace, 98–99.

11 The structural importance of attributive justice can be seen in one of Grotius's private letters. Here he lays out a diagram of his structure of justice, with natural law divided into that which is mandatory and that which is appropriate. See Hugo Grotius, letter to Willem de Groot, 21 May 1638, in Some Less Known Works of Hugo Grotius, ed. Wright, Herbert F. (Leiden: Brill, 1928), 210Google Scholar.

12 Stumpf also includes a chapter on war, but devotes only two pages to punitive war (222–24). This paper will develop his insights in greater detail and draw wider implications. More generally, Stumpf makes an interesting and subtle argument that the possibility of subjective rights is incompatible with Grotius's conception of natural Right (59–63); my argument here is that the former leads to the latter.

13 Grotius, Hugo, The Law of War and Peace, trans. Kelsey, Francis W., intro. James Brown Scott (New York: Bobbs-Merrill, 1925)Google Scholar, 2.1.2.2, 171. Subsequently cited as DJB.

14 Kant, Immanuel, The Metaphysics of Morals, ed. Gregor, Mary (New York: Cambridge University Press, 1996)Google Scholar, sec. 56, 116; Kant, Immanuel, Toward Perpetual Peace, ed. Kleingeld, Pauline (New Haven, CT: Yale University Press, 2006), 70–73Google Scholar.

15 Rawls, John, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 91–92Google Scholar. State sovereignty can be seen as an extension of the liberal principle of self-sovereignty; states cannot punish other governments for their domestic actions just as the state cannot punish supposed violations of private morality. (Indeed, Tuck argues that the development was the other way around: the sovereign state led to the sovereign individual [Tuck, Rights of War and Peace, 140].) Kant argued that no individual can be punished for even a public crime unless the individual has consented to the punishment. Contemporary calls for humanitarian intervention are often grounded on liberal terms of protecting human rights. Such appeals extend the principle of defensive war from defense of oneself and one's compatriots to the defense of individuals in other countries attacked by their own governments. Although such appeals may oppose the UN definition of who is entitled to armed defense, they do not necessarily challenge the principle that only wars of defense are legitimate.

16 Johnson, James Turner, “Historical Roots and Sources of the Just War Tradition in Western Culture,” in Just War and Jihad: Historical and Theoretical Perspectives on War and Peace in Western and Islamic Traditions, ed. Kelsay, John and Johnson, James Turner (New York: Greenwood, 1991), 9–10Google Scholar.

17 Grotius, DJB, 2.20.5–6, 467–70. Before outlining these three purposes, Grotius first distinguishes punishment from revenge, and emphatically opposes the latter. He argues that vengeance cannot be part of natural Right because it proceeds from the animal soul rather than the rational soul; it is like “when a dog bites the stone that is thrown at it.”

18 Grotius's public conception of satisfaction (outlined in DJB 2.20.8–9) answers the reasonable rejoinder that satisfaction might include—or even be fully constituted by—restitution. As outlined below, Grotius fundamentally sees crime as an act against the public good rather than against the individual. For this reason, it is the state which brings the charges and prosecutes the crime. Punishment and restitution are not mutually exclusive, as the victim (or his or her family) may sue for restitution (as in the case of “wrongful death”). However, as a private citizen, the victim could not bring the suit to a criminal court. This distinction is amplified in Grotius's de Satisfactione Christi, or A Defence of the Catholic Faith Concerning the Satisfaction of Christ, Against Faustus Socinus. Here Grotius confronts the Socinian approach to Atonement theology, arguing that it erroneously portrays God as a creditor to whom sinful humanity must repay its debt. On the contrary, Grotius portrays sin as an offense against God's moral government—a crime for which satisfaction is necessary. As the loquacious title indicates, Grotius does not reject the concept of satisfaction; however, his argument unambiguously distinguishes it from restitution. See Hugo Grotius, The Satisfaction of Christ, 2.16, 820, in Oliver O'Donovan and Joan Lockwood O'Donovan, From Irenaeus to Grotius; Grotius, Hugo, Defensio Fidei Catholicae de Satisfactione Christi Adversus Faustum Socium Senensem, ed. Rabbie, Edwin, trans. Mulder, Hotze (Assen: Van Gorcum, 1990), 6.18–20, 197–99Google Scholar.

19 Grotius, DJB, 2.20.2.2, 464.

20 Grotius, The Satisfaction of Christ, ed. O'Donovan, 2.16, 820. This shows that Grotius's public conception of satisfaction is also forward looking. The purpose of restoring the dignity of God's moral government is chiefly to promote virtue, thus preparing believers for the hereafter.

21 Grotius, DJB 2.20.37, 502.

22 Grotius, DJB 2.20.29.1, 494.

23 Grotius, DJB 2.20.9.4, 477.

24 Grotius, DJB 2.20.46.1, 513.

25 Grotius, DJB 3.11.4.2–5, 725–27; 2.23.13.1–3, 565–66.

26 Grotius, DJB 2.24.3.3, 570; 2.20.30.3–2.20.31.2, 496–98; 2.20.7–8, 470–71.

27 See Tuck, “Grotius and Selden,” 520.

28 Grotius, DJB 3.11.7.1, 731.

29 Grotius, DJB 2.20.24.1, 492.

30 Grotius, DJB 2.24.3–5, 572. This balance between prudence and generosity, or judgment and mercy, is taken up in a more direct (and profound) fashion in Grotius's Satisfaction of Christ.

31 Grotius, DJB 2.20.5, 467–69; DJB 2.20.40.1, 504–5; 2.20.7–9, 470–78. One might contrast this service to “human society” with Hobbes's assertion that vainglory and diffidence are two of the natural passions in man, and his expectation that they cannot be changed, but only overwhelmed by the threat of force, which arouses the comparably greater passion for self-preservation.

32 Grotius, DJB 2.20.40.1, 505.

33 Grotius, DJB 2.20.9.1, 475.

34 Grotius, The Satisfaction of Christ 2.6, 817.

35 This provides a counterpoint to Villey's assertion that Grotius sees “subjective Right” as subsuming and replacing “objective right.” See Villey, Formation, 627.

36 See Grotius, DJB 2.25.

37 Grotius, DJB 2.24.1.1, 567.

38 Ibid.

39 See Grotius, DJB 3.3–9 for the former; 3.11–16 for the latter.

40 Tuck, The Rights of War and Peace, 102–8. Recent scholarship has shown an increased interest in Grotius's position on slavery; see Forde, “Hugo Grotius on Ethics and War,” 643–47; Cairns, John W., “Stoicism, Slavery, and Law,” Grotiana 22/23 (2001/2002): 197–216Google Scholar; van Nifterik, Gustaaf, “Hugo Grotius on ‘Slavery,’” Grotiana 22/23 (2001/2002): 233–44Google Scholar; Farr, James, “Locke, Natural Law, and New World Slavery,” Political Theory 36, no. 4 (2008): 500–504Google Scholar; and Nyquist, Mary, “Hobbes, Slavery, and Despotical Rule,” Representations 106, no. 1 (2009): 12–14Google Scholar.

41 Grotius, DJB 3.14.1–2, 761–62. Grotius argues that individuals are responsible to determine for themselves the justice of the war before they participate. However, unless they are convinced that the war is unambiguously unjust, they are to follow the orders of their rulers. See Grotius, DJB 2.26.3–4, 587–94.

42 According to Grotius, prior to civil society, all individuals have a right to punish crime, as long as they are not guilty of the same crime. In the creation of the state, individuals give up the right to punish their compatriots (in ordinary circumstances) to their common government. However, in international relations, individuals retain the original right to punish—and expletive justice imposes no limitations on its exercise. See, for instance, DJB 2.20.8.5, 474–75.

43 As Grotius later points out, there is little virtue in simply respecting a right that is protected by coercive force. Unless it is safe to remain ungrateful, there is no virtue in gratitude (DJB 2.20.20, 489).

44 Grotius, DJB 3.14.3–6,763–68; John Locke, Second Treatise of Government (Indianapolis: Hackett, 1980), sec. 2, 7; sec. 24, 17–18; secs. 170–72, 88–90. Van Nifterik comes to a similar conclusion in “Hugo Grotius on ‘Slavery.’” This provides some perspective on Tuck's treatment of slavery in Grotius (see Tuck, Natural Rights Theories, 147; Tuck, Philosophy and Government, 193–94).

45 See Barker, J. Craig, The Protection of Diplomatic Personnel (London: Ashgate, 2006), 39–45Google Scholar.

46 Grotius, DJB 2.18.4–5, 441–46.

47 O'Donovan, Oliver M. T., “Law, Moderation and Forgiveness,” in Church as Politeia: The Political Self-Understanding of Christianity, ed. Stumpf, Christoph and Zaborowski, Holger (New York: de Gruyter, 2004), 6Google Scholar.

48 Furukawa, “Punishment,” 221–23.

49 Grotius, DJB 1.1.2–9, 34–37.

50 Grotius, DJB 2.17.9.1, 433; Prol. 8, 13; 2.7.2.1, 268.

51 Finnis, Natural Law and Natural Rights, 205–7.

52 Grotius, DJB 2.7.4.1, 269–70.

53 Grotius, DJB 2.1.11.1, 179.

54 Grotius, DJB 1.1.8.1, 36–37.

55 Grotius, DJB 2.7.2.1, 267–68.

56 Grotius, DJB 2.23.13.2, 565.

57 Fleishacker, Samuel, A Short History of Distributive Justice (Cambridge, MA: Harvard University Press, 2004), 20–22, 139–40Google Scholar. See also Schneewind, Invention of Autonomy, 78–80, and Haakonssen, Natural Law and Moral Philosophy, 26–30.

58 Note, however, that expletive justice can only be perfectly implemented within its own boundaries; it must artificially close off these parameters within the open-ended expanse of higher justice. In similar fashion, a perfect duty—such as the duty to provide a specific payment to a specific creditor—may be morally mundane compared to an imperfect duty that is not owed to anyone in particular and whose performance can never be final. For instance, the perfect duty of a millionaire businessman to pay a billionaire supplier may be prosaic in relation to the millionaire's imperfect duty to promote better health among the world's malnourished. Yet regarding the latter, it is unclear what the parameters of the duty are, to whom it is owed, what would constitute its perfect fulfillment, and whether the millionaire (or billionaire) is even capable of doing so.

59 Grotius, DJB 1.1.2.1, 34. See also 1.2.1.3, 57.

60 Grotius, DJB 1.1.5.1, 35–36; Prol. 8, 13; 2.20.3, 465–66.

61 Grotius, DJB 2.20.2.2, 464.

62 Grotius, DJB 2.20.3, 465–66.

63 Grotius, DJB 2.20.7.1, 470–71

64 See Grotius, DJB, 3.1.2.1–3, 599–600. See also Book 3, chaps. 2–8.

65 Grotius, DJB 1.1.8.1, 36–37.

66 Grotius, DJB 1.1.7, 36. See Aristotle, Nicomachean Ethics V.6, trans. Ostwald, Martin (Upper Saddle River, NJ: Prentice-Hall, 1999), 129–30Google Scholar.

67 Grotius, DJB 1.1.4, 35.

68 Grotius, DJB 1.1.8, 2.17.3, 37, 431.

69 For an illuminating treatment of this issue, see O'Donovan, “The Justice of Assignment,” 181–82.

70 Grotius, DJB 1.1.8.1, 37. Later, Grotius recognizes how unusual it is for a work on jus to treat (political) virtue. However, he reaffirms the fact that virtue often counsels one not to exercise their jus, testifying to the limits of the law. See Grotius, DJB 2.24.1.1, 567.

71 Grotius, DJB 2.23.4, 558–59.

72 Grotius, DJB 2.23.1, 557.

73 Hannah Arendt's meditations on the forward-looking character of human action are insightful here, especially her thoughts on the importance of forgiveness and pardon from the punishment set out in law. See Arendt, Hannah, The Human Condition, 2nd ed. (Chicago: University of Chicago Press, 1998), 236–41CrossRefGoogle Scholar.

74 Grotius, DJB 2.23.13.1–3, 565–66.

75 Likewise, the necessarily imperfect nature of judgment under attributive justice is not of lesser value than the perfect formulations of expletive justice.

76 Grotius, Less Known Works of Grotius, 209–10. This is consistent with Grotius's usage in other works. For instance, in The Satisfaction of Christ, he draws a distinction between things that are “properly natural” or “simply and universally natural,” and things that are fitting, or “agreeable enough unto nature” (chap. 3, 85).

77 Grotius, DJB 2.1.9.1, 176. This can also be seen in 2.1.11. It is noteworthy that Grotius describes as “virtues” only those virtues which Aristotle would describe as moral virtues; for Grotius, virtues of the intellect may not be virtues at all, as they correspond to the impersonal realm of nature.

78 Grotius, DJB 3.10.1.1, 716. See also DJB 1.1.9, 38.

79 Grotius, DJB 2.1.9.1, 176.

80 Grotius, DJB 1.1.8.1, 37. See also O'Donovan and O'Donovan, “Hugo Grotius,” 790–91.

81 This contrasts with Brett's analysis—by no means unusual—that “beyond [expletive justice] there is only the free play of utility.” See Brett, “Natural Right and Civil Community,” 44. Brett offers a sensitive treatment of how Grotius's conception of the state changes from de Jure Praedae to DJB, pointing to the “changed relationship Grotius sees between justice, honesty, and utility” (48). However, she does not examine Grotius's tripartite conception of the sources of authority—generation, consent, and crime—nor does she explore Grotius's more extended discussion of political authority in de Imperio Summarum Potestatum Circa Sacra.

82 Grotius, DJB 1.1.8.2, 37.

83 Grotius, DJB 2.7.4.1, 269.

84 Grotius, DJB 2.17.2.2, 431.

85 Grotius, DJB 1.1.10.3, 39.

86 Grotius, DJB 2.7.10.1, 277.

87 Tuck, The Rights of War and Peace, 102–8.

88 Grotius, DJB 2.20.51, 521. This further emphasizes the importance of religion (and its promises of eternal rewards and punishments) in safeguarding the sanctity of (expletive) contracts.

89 Aristotle, Politics, trans. Barker, Ernest (New York: Oxford University Press, 1962), 119–20Google Scholar.

90 Strauss, Leo, Natural Right and History (Chicago: University of Chicago Press, 1953), 159Google Scholar. Roberts, William Clare examines the implications of this approach in “All Natural Right Is Changeable: Aristotelian Natural Right, Prudence, and the Specter of Exceptionalism,” Review of Politics 74, no. 2 (2012): 266–72Google Scholar.

91 Aristotle, Ethics V.6, 129–30 (trans. Ostwald); Thomas Aquinas, Summa Theologiae II-II 61.1, in On Law, Morality, and Politics, 2nd ed., ed. Baumgarth, William P. and Regan, Richard J. (Indianapolis: Hackett, 2002), 124Google Scholar.

92 See, for instance, Grotius, DJB 1.1.8.2, 37; 2.20.2.2, 464; 2.20.33.1, 500; 2.23.1, 557.

93 Richard Tuck, “Grotius and Selden,” 522. Hobbes's evaluation of Aristotle: “I believe that scarce anything can be more absurdly said in natural philosophy than that which now is called Aristotle's Metaphysics; nor more repugnant to government than much of that he hath said in his Politics, nor more ignorantly, than a great part of his Ethics” (Hobbes, Thomas, Leviathan, ed. MacPherson, C. B. [New York: Penguin Books, 1985], chap. 46, 687Google Scholar).

94 For instance, the primacy of politics is a consistent theme of his de Imperio, completed in 1617, as well as DJB, written shortly after his 1618–21 imprisonment in the Loevestein Castle.