Grotius's System of Law
7.1 The Domains of Law
We will now venture to pinpoint Grotius's views on the role and record of natuÂral law within the comprehensive system of law he developed in ιpc (1605), ibp (1625) and Inleidinghe (1627).[563] [564] The interpretation of this system is not unprobÂlematic. A first query presents itself with respect to (the apparent inconsistÂency in) the division of domains. In 1625 and 1627 Grotius all but seems to have distanced himself from the scholastic tripartition in eternal, natural and human law and endorsed Aristotle's bipartition of natural law and volitional law as â€?optima partition Puzzled commentators have interpreted this as a farewell salute to theology, to corroborate Grotius's clean separation of natural law and divine law, his secularization and his quintessential modernity.[565] [566] [567] [568] The claim lacks plausibility. Besselink has submitted references to eternal law from Grotius's legal tracts and correspondence. One may add that references to the lex aeterna are commonplace in Grotian drama from Adamus exul (1601) to Christus Patiens (1608) to Sophompaneas (1635).101 Neither is Grotius's distribution of spheres in ipc beyond controversy. A first issue that has puzzled critics is the position Grotius defends in 1605 on the correlation of natural law and divine volitional law. Some deem the disÂtinction entirely absent, not yet crystallized or merely implicit. Others point to Grotius's identification of the source of natural law with the intention of the creator.102 Grotius's presentation of affairs in the Inleidinghe is summary. He merely addresses divine positive law in its perfect form: the law of the Christ.103 Above we have addressed Grotius's position in De imperio and in ibp respectively. Grotius's distribution of law in IPC has raised more queries. The treatise is beset with problems of terminology and demarcation of spheres.w5 As regards the definition of the â€?law of nations' Grotius may be excused. He must have struggled with the ambiguous legacy of Roman law and laboured to reconcile its two divergent concepts. One tradition of Roman law identified ius gentium with ius civile proper, the law that was the expression of the will of each particuÂlar state. The second proposition presented ius gentium as a type of natural law. In reflecting the consensus of mankind, it was qualifiable either as ius naturae secundarium or ius gentium primarium; in 1605 Grotius, somewhat confusingly, applies both terms indiscriminately. Meanwhile, his dissatisfaction with the ambiguity of the Roman legacy can be read in an afterthought, known as the Nova Declaratio, meant to clear up affairs and differentiate between civil law as the reflection of unilaterally revocable consuetudo and the law of nations that was based on and monitored by international agreement.1"*’ By 1627, in the Inleidinghe, his epochal handbook on Roman-Dutch Law, Grotius presents a clear-cut distribution of spheres, neatly demarcating natuÂral law from positive law, divine from human positive law, and iusgentium from ius civile.107 However, here a new ambiguity surfaces that must keenly interest us. All this is fair enough. Intriguingly, though, in his Inleidinghe Grotius also stipulates that the law of nations, while nowhere near to the status of natural law, in view of its long standing and in being the product of consensus, was hard to change. In practice it virtually shared the immutability of natural law.w9 It sounds eerily akin to the second interpretation of ius gentium in Roman law, to suggest that Grotius's indiscriminate qualification of iusgentium in ipc was perhaps more thanjust incidental. Notwithstanding their â€?volitional' status, both divine and human law also participated in natural law.110 Both in ibp and in the Inleidinghe Grotius identifies this link with the lasting imprint of God's mind on man, that sparkle of the divine light of reason from before the Fall (the lucis antiquaefavilla in Adamus exul) that lingers on in man, overcast with sin though he may be.m This perception reveals itself in the law of nations as the consensus of mankind, which in ipc gave rise to Regula iiu2 and - to reflect its ambiguous status and participation in both spheres - was identifiable, at will, as ius naturae secundarium or ius gentium primarium.u3 In this sense, the law of nations itself came as an additional (a posteriori) proof of the law of nature. The consensus of mankind, or by all means its gentes mor- atoriores, suggested a single cause as common source, viz., â€?common sense'.n4 The domain could be called natural law by reduction, or â€?improper’.[580] [581] [582] [583] [584] [585] And this leaves us with a tantalising dichotomy: a natural law stricto sensu next to a second version of a broader, and less than clear-cut nature. How to define this type of law - and what was its role? 8