The Mirror-Side: Man’s Self-Seeking
Grotius's insistence on man's sociability and therefore his identification of personal interest with social rest and order can never be questioned. But his emphasis on this part of human nature will also have been suggested by cirÂcumstance.
Harsh reality showed that the other side of man, his self-seekÂing, should never be doubted. Grotius had lived and learned; he never denied Hobbes's proposition (homo homini lupus), the ambiguity of man's nature or the huge potential for conflict this entailed.[519] [520] [521] Still, as he insisted, strife, envy and competition made up for just half the story. What he juxtaposed - and what caused the tension man's assignment in life it was to neutralize, and the task Grotius had set himself to probe - was the equally inherent sociability of man as prerequisite to self-fulfilment. Grotius considered man's intelligence and speech the paramount faculties to harmonize self-interest with the needs of the commonwealth and to uphold social order. At that juncture he rested his case, respecting the variegated ways of life without passing verdict. Thus, he left a people full latitude to choose itself the type of government it loved best. 55We may perhaps even carry the argument one step further in suggesting that Grotius may well have identified this ambiguity as precisely the continÂgency of the human condition. It would explain his striking insistence on the legitimacy of personal claims as the building-blocks of society. So much so, indeed, that modern researchers have come to base the originality and moderÂnity of Grotius's thought precisely on his theory of individual rights?6 Grotius laid the basis for this theory by introducing a new approach to the concepts of ius (and lex), and we must, therefore, spend a few lines on these issues.
4.1 Ius and Lex: Grotius’s Theory of Individual Rights and Sovereignty
Distancing himself from tradition Grotius defined ius in three different senses.
In its broadest sense, and in a negative definition so to speak, it denoted whatÂever was not unjust, in the sense of not conflicting with the nature of human society.[522] This covered whatever was permissible by the norms of natural law and human volitional law on all social levels?[523] The second sense of ius was the one that must interest us most: it touches Grotius's celebrated â€?subjectivisÂing' of the concept as a moral quality attached to a person that legitimated an action or possession?[524]The truly innovative idea has been hailed as the upbeat to modern individÂualism in its first bid to identify man's goal with the fulfilment of his personal rights. But then, as Hobbes observed, this would imply the end of all morality and was tantamount to taking anarchy for granted. Grotius ventured to disaÂgree: ius concerned man's innate power to protect his life and liberty (suum),[525] a potestas that, in conventional society, was extended to property (dominium) and contractual agreements.[526] [527] [528] [529] In voicing this proposition Grotius effectively harked back to Aristotle's duality of â€?universal' and â€?particular' justice, renderÂing the Stagyrite's particular justice (that governed human relations) into a faculty that entitled him to potestas and dominium (and made the object of expletive justice) and defining Aristotle's universal justice as a mere aptitude that became a person and made the object of attributive justice?2 Only the first category, qualified as â€?perfect' rights, gave rise to legal titles and obligations that were enforceable. However, this was not to say that the less perfect rights were of a more gratuitous nature: they complied with the moral standards epitomised in the law of Christ?3 Love from sociability balÂanced self-seeking from reason and curtailed the latter by the imperative of respect for the rights one's fellow man could claim. Grotius thus defused the explosive element of â€?natural' competition with an appeal to man's sociability as the warrant of a minimal social order. The massive implications of this somewhat open-ended proposition and including its rather minimalistic presentation of justice have much troubled commentators. The issue, which already divided Pufendorf and Thomasius?4 has invited Richard Tuck's in depth research over recent decades.[530] [531] [532] [533] [534] [535] [536] [537] Its ramiÂfications are legion. For one thing, Grotius allows for a disconcerting latitude with respect to the development of private property from the original right of common use. In his proposition this transfer took place either by tacit recogÂnition or by explicit contract. The first, implying self-restraint from sociabilÂity, points to Locke's liberal views on private property; the second proposition inspired Pufendorf's absolutist views in the matter.66 The implicit duality entailed similar consequences with respect to the theÂory of state: man's self-seeking in subversion of the ideal οικεiωσις created the individual's need for protection and his consent to delegate sovereignty to civil authorities.67 Grotius's insistence, in Bodin's footsteps,68 on the absoÂlute and indivisible nature of sovereignty has wrongfooted commentators to make him incur the label of champion of absolutism^9 Intriguingly, however, Grotius deems the concept applicable to any given type of government?0 The dilemma invited Haakonssen's ingenuous reading to look upon the state as an independent legal structure, uncouple the notion of sovereignty and take Grotius's perception of the concept, in a strictly legalistic interpretation, not as a power over, but exercised on behalf of the body corporate?1 This is certain, in this domain of thought, too, and to typify the variety of interpretations his works have prompted, Grotius's views had a massive impact on legal and politÂical theory. This, in turn, touches upon the relation between individual and civil liberty. Thus, what the individual had given up in surrendering the right of punishÂment or - more to the point in the context of the Dutch nation - the right to resistance was not that right as such, but merely its execution (as through sanctions). Whenever sovereign power was inapplicable or an appeal to civil authority failed, the potestas returned to its original source in the pre- or extra-political stage, viz., the individual?2 Also, necessity imposed a law of its own: in dire straits man might infringe upon his fellow man's right of propÂerty. Just like in civil society people might in the last resort invoke their moral power to resist - and the Dutch Revolt was a case in point. To conclude this surÂvey, Grotius's third definition of ius is that in the sense of lex: an imperative rule of moral action.[538] [539] [540] [541] [542] Grotius's tripartition of meanings was very intentional: it reflected a hierarchy of rights and the order, therefore, was inconvertible. As Besselink intriguingly observed, in the opposite direction the convertibility is substantial?4 5