Posts tagged with: hugo grotius

Blog author: jcarter
posted by on Thursday, March 1, 2012

In the seventeenth-century, the Dutch lawyer, magistrate, and scholar Hugo Grotius advanced Protestant natural-law thinking by grounding it in human nature rather than in the divine commands of God. As he claimed, “the mother of right—that is, of natural law—is human nature.” For Grotius, if an action agrees with the rational and social aspects of human nature, it is permissible; if it doesn’t, it is impermissible.

This view of law shaped his writings on jurisprudence, which in turn, had a profound influence on the shape of the law in the West. The Founding Fathers of America considered Grotius’s jurisprudence to be authoritative and relied on it when forming their perspectives on such areas as international law. One of the principles that Grotius advanced—and that was enshrined in our common law—was the concept that for a formal contract to be legally binding it must be entered into freely and with the consent of all parties involved.

In certain circumstances, such as when entering into commercial contracts, consent is considered to be inviolable precondition. If a person who is incapacitated and is unable to give consent or makes an agreement under duress, the contract is rendered invalid. Today, we consider this principle to be such a basic legal axiom that it seems inconceivable that anyone would challenge it.

And yet, that is precisely what the Obama Administration is doing with its inclusion of an “individual mandate” in the Affordable Care Act.

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As I mentioned in Part 1 of this series, my aim is to probe the natural-law doctrines of only a few influential sixteenth-century Protestant theologians.

Some, such as John Calvin, may already be familiar to you, while others, such as Peter Martyr Vermigli (known as Martyr) and Jerome Zanchi, may be entirely new. What is surprising about Martyr and Zanchi is how much their natural-law doctrines are in line with the metaphysical essentialism of Thomas Aquinas and Duns Scotus. Before going any further I should forewarn you that what I just said challenges a good many Protestant and Roman Catholic stereotypes.

The most common stereotype is that the Reformers and their successors were indebted to the nominalist metaphysics of William of Occam, which resulted in the Bible being treated as a law book and God being conceived as an arbitrary and irrational sovereign. In subsequent posts, this interpretation will be examined in relation to the thought of Marytr and Zanchi. So stay tuned for more on this topic.

However, at this point, I should mention that the stereotype is largely accurate in regard to the modern natural-law tradition associated with Samuel Pufendorf and later thinkers but not with Hugo Grotius. The distinguished medievalist Francis Oakley has shown recently that Grotius’s famous remark in The Law of War and Peace about natural law being valid “even if we should concede that which cannot be conceded without the utmost wickedness, [namely] that there is no God, or that the affairs of men are of no concern to him” does not point to a fundamental break with scholastic patterns of thought. In fact, Oakley thinks no real novelty attaches to the way in which Grotius identifies the ultimate grounding of natural law. He provides two reasons to support his view.

First, counterfactual assertions concerning the existence of God were commonplace in antiquity, the middle ages, and later. Grotius was not unique in his use of counterfactual arguments. Second, according to Oakley, “understood in the broader context of his natural law thinking, Grotius’s impious hypothesis can be seen to witness less to any great secular novelty than to the continuing dialectic between two distinct theories concerning the metaphysical grounding of natural law which the early modern natural law thinkers had inherited from their medieval and late medieval predecessors. In the De jure belli et pacis, it turns out, he was maneuvering for position in such a way as to distance himself from the more voluntaristic approach with which he had appeared to sympathize in his earlier De jure praedae (“On the Law of Booty”) and in accordance with which even the content of natural law was understood to be grounded in the mandates of a legislating divine will” (p. 66).

The second most common stereotype, particularly among evangelicals, is to assert that Thomas’s synthesis of Aristotle and Augustine started Christian theology on the way to secularization. According to Carl Henry, founding editor of Christianity Today and prolific evangelical theologian, “Thomas may have thought he was directing Aristotelian thought God-ward; instead, he grounded Christian theism and morality on secular turf.”

I will respond to these stereotypes in due course, but I first want to mention four Protestant doctrines in which natural law historically played an important role, which I will take up in my next post.

This post has been cross-posted in my blog, Common Notions.