The Impious Hypothesis in the Prolegomena

According to Grotius, this is a highly pressing task, because �there is no lack of men who view this branch of law with contempt as having no reality outside of an empty name' (iBP, Prol. 3).^[663] Grotius therefore sets out to briefly refute this dangerously erroneous view. In doing so, he refers to a speech, which Carneades - one of the most important classical skeptics - once held in Rome. According to Grotius, Carneades claimed that

... for reasons of expediency (utilitate), men imposed upon themselves laws, which vary according to customs, and among the same peoples often undergo changes as times change; moreover that there is no law of nature (ius naturale), because all creatures, men as well as animals, are impelled by nature toward ends advantageous to themselves; that, consequently, there is no justice, or, if such there be, it is supreme folly, since one does violence to his own interests if he consults the advantage of others.

ibp, Prol. 5^{[664] [665] [666]}

Carneades, as presented by Grotius, posits a link between justice and natu­ral law. If we thus question the natural law, we also bring justice into ques­tion.

Grotius lived at a time when the system of shared and enforceable values, a system embodied in papal authority, had become less self-evident. His human­istic education inspired him to seek answers in a pre-Christian tradition of natural law, a tradition embodied for instance in the writings of the Stoics.^u One of the most prominent characteristics of humans as animals is a desire for society (appetitus societatis), an instinctive drive to create a community (com­munitas) that would be peaceful (tranquilla) and �organised according to the measure of [their] intellect' (ibp, Prol. 6). Unlike animal communities, human community is not based only on feelings but also, and above all, on intellect. Unlike animals, moreover, humans have a �special instrument for communica­tion, namely speech (sermo) and �the faculty of knowing and acting in accord­ance with general principles' (iBP, Prol. 7).

The source of law (fons... iuris) in the proper sense of the term is the desire of and need for maintenance of a social order that is consonant with human intellect. According to Grotius, five rules apply to this sphere of law:

[T]he abstaining from that which is another's, the restoration to another of anything of his which we may have, together with any gain which we may have received from it; the obligation to fulfil promises, the making good of a loss incurred through our fault, and the inflicting of penalties upon men according to their deserts.

iBP, Prol. 8^{[667] [668] [669]}

These rules express the minimal conditions or values that need to be observed if human society is to exist in an orderly fashion. They are not the product of some voluntary choice or convention, but rather their precondition.

Grotius then goes on to discuss law in its more extended meaning. Humans, he says, differ from animals not only in having a â€?strong bend toward social life' but also the power of discrimination which enables them to discern which things are agreeable and which are harmful. People are capable of being guided by well-tempered judgement (judicium recte) instead of just fear or rash impulses. Whatever contradicts human judgement is also incompatible with natural law, and thereby with human nature?⁴ Grotius mentions â€?the rational allotment to each man, or to each social group, of those things which are properly theirs' (ibp, Prol. 10) as an example of a well-tempered judgement and adds that many scholars see this â€?discriminating allotment as a part of law.^{[670] [671] [672] [673]} Grotius, however, rejects this broad conception of law, because in his view it expresses a moral duty, while law should be understood in a narrower sense.

In the following part of the Prolegomena, Grotius discusses the various sources of law. He introduces this section by a sentence we quoted already at the beginning, namely â€?What we have been saying [sc. about the signification of the word â€?law' (jus)] would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him' (ibp, Prol. 11)J⁶ To understand this claim, we need to consider how it relates to preceding paragraphs eight to ten of the Prolegomena, where Grotius explains various meanings of the term â€?law'. So far, we saw that the natural law is valid thanks to human nature, just as the Stoics had thought. Now Grotius ask a rhetoric ques­tion: Under what conditions does natural law apply?i7 Would it be valid even if there was no God or if God took no interest in human affairs? As a scholar, Grotius must admit a possibility - which he personally finds worrisome - that the natural law has a secular nature?⁸

Grotius responds to this rhetorical question like a true, god-fearing Calvinist, when he states that �[t]he very opposite of this view has been implanted in us partly by reason, partly by unbroken tradition, and confirmed by many proofs as well as by miracles attested by all ages. Hence it follows that we must with­out exception render obedience to God as our Creator, to Whom we owe all that we are and have' (ibp, Prol.

Grotius uses this consideration to indicate the way to another source of law, a source distinct from human nature, namely the free will of God. He states that �the law of nature... proceeding as it does from the essential traits implanted in man, can nevertheless rightly be attributed to God, because of His having willed that such traits exist in us' (ibp, Prol. 12). Grotius includes among these essential traits planted in us by God also sociableness, which he had previously shown to be the source of the natural law, adding that �sacred history. in no slight degree rein­forces man's inclination towards sociableness by teaching that all men are sprung from the same first parents' (ibp, Prol. 14). The idea that all humans ultimately share the same parents is of special importance to the law of nations. It implies not only that all people were created by the same God but also that since they all derive from the same parents, they ought to treat each other as brothers and sisters.

From this, Grotius derives a conclusion which pertains to the first part of Carneades's objection, namely that there is no natural law, and that people, just like animals, are driven by their nature only to seek what is beneficial and useful to themselves. Grotius does not deny that people as well as animals are driven by self-interest. His theory of rudimentary sociableness does, however, imply that people are also driven by interest and care of others, and that is the source of law and justice. He can, therefore, claim that �the very nature of man, which even if we had no lack of anything would lead us into the mutual relations of society, is the mother of the law of nature' (ibp, Prol.

At this point, Grotius can turn to the second part of Carneades's objection, namely the claim that there is no law of nations. Grotius points out that the natural law and expediency (utilitas) are inextricably linked. Using a theo­logical argument, he deduces that �the Author of nature willed that as indi­viduals we should be weak and should lack many things needed in order to live properly, to the end that we might be the more constrained to cul­tivate the social life' (iBP, Prol. 16). People are characterized by a degree of sociability that is founded in their nature, in their constitution. At the same time, however, expediency is the reason why individuals form communities, create municipal law, and subsequently obey it. Grotius then draws a par­allel between individuals and states, claiming that just as among individu­als, their sociability rests upon expediency, i.e., usefulness for themselves, so agreeable relations among states are likewise driven and determined by expediency:

But just as the laws of each state (civitas) have in view the advantage of that state, so by mutual consent it has become possible that certain laws should originate as between all states, or a great many states; and it is apparent that the laws thus originating had in view the advantage, not of particular states, but of the great society of states.

iBP, Prol. 17

Based on their mutual consent, states create laws which are beneficial and expedient for the whole society of states and not just any particular state, regardless of how powerful. Each state, even the smallest one, should have some profit from such an alliance. This is because

there is no state so powerful that it may not some time need the help of others outside itself, either for purposes of trade, or even to ward off the forces of many foreign nations united against it. In consequence we see that even the most powerful peoples and sovereigns seek alliances, which are quite devoid of significance according to the point of view of those who confine law within the boundaries of states.

iBP, Prol. 22

Grotius then summarizes the argument in the Prolegomena into a claim that Carneades managed to altogether pass over the law of nations (iBP, Prol. 17). He believes that the arguments presented in the Prolegomena show that one ought to further investigate the �common law among nations, which is valid alike for war and in war' (iBP, Prol. 28). This task is then undertaken in the trea­tise proper, especially its Book ii and III, while in Book I, Grotius defines the main concepts. Let us now have a close look at his conception of natural law.

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