Grotius’s Position in the Discourse on the Concept

In the history of ideas, the concept of natural law presents a long-sustained train of thought. In the footsteps of Heraclitus, Western philosophy from Aristotle to the Stoics and from St.

The first concerned the speculative query as regards the nature of God's involvement with natural law. The dilemma gave rise to centuries of debate between the so-called �intellectualist' school of thought as eminently pre­sented by Aquinas^{[466] [467] and the insistence on the will-element in the �voluntarist' perception advanced by later scholastics such as Duns Scotus and Ockham.[468] To bespeak its impact, even Grotius, who lived a full three centuries later, could never ignore the discourse. To get around the dilemma, he diverted the debate into new channels. Precisely the answers he came up with have puzzled commentators to the present day.[469]}

A second complicating element was of more recent date. It was the con­sequence of sixteenth-century social crisis. With the Reformation the natu­ral law tradition once more bifurcated, this time along religious demarcation lines, and more dramatically so as protagonists professed to mutually exclusive views.

Still, this is as far as consensus will bring us. Analysis of Grotius' outlook on the watershed - whether he points forwards or rather backwards - has prompted widely diverging interpretation. Some critics have earmarked Grotius's proposition as marking the transition from scholasticism to moder­nity and the reorientation of debate from moral theology to secular legal thought and rationalism. To be sure, the secular political discourse as exem­plified by Bodin^[470] had been literally brought to Grotius's doorstep by Justus Lipsius, intimate of the family and standard-bearer of neo-Stoicism.^[471] But then, Grotius's views can never be isolated from their troubled social con­text as exemplified by his politico-theological treatises and his biblical and Hebrew studies we have addressed in chapter ii of this volume.^[472] Or, to turn tables - and as Haggenmacher first pointed out in 1983 and Ertz has recently sug­gested - precisely the politico-theological discourse as exemplified by De Imperlo (c. 1617) may well have been decisive in defining the semantics of what com­mentators have hailed as Grotius's foremost contribution to the discourse, his concept of subjective natural rights.^[473]

And then, what to think of Grotius's �Impious Hypothesis' (�Etiamsi daremus’), notorious for the puzzles it has posed commentators. Did Grotius, in inserting this �absurdistic' formula, seek to enhance the rational and legal elements of Natural Law, or even to take out the religious element entirely? Did he wilfully aim at secularizing natural law in an overly intellectualistic approach that did away with its theological and moralistic underpinnings? To leave God out of the equation would imply a fundamental overhaul of the con­cept of natural law.

For one thing, there is general consensus as regards Grotius's historic sta­tus with respect to the academic debate.^[474] Not, to be sure, in the sense that he solved the riddle, far from it; if anything, he added to the perplexity. Still, Grotius's train of thought found ramifications in the very divergent views on political and legal theory subsequently advanced by such eminently influential authors as Pufendorf and Hobbes, Thomasius and Barbeyrac, Locke and Smith. For all their differences of orientation and substance, these authors agree on Grotius's lasting impact.^{[475] [476] On the authority of history, therefore, Grotius poses as godfather at the cradle of modern (Protestant) natural law as we know it.}

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