The Realm of Middle Justice

To be sure, natural law was at the root of all forms of ius. But then, in merely pre­scribing morality in terms of negative justice it was inadequate to serve as the exclusive guide to man in terms of virtue and obligations^³ and on the issue of supererogation.12⁴ This province, Grotius appears to argue, ranges much wider than the strictly imperative and prohibitive.

The pertinence of this sphere to Grotius is corroborated by the way he links this domain up with his precepts of full permission (what can be done entirely licitly) and less-than-full permission (what can be done with mere impu­nity).^⁵ The distinction is mirrored in Grotius's monita and temperamenta with regard to war, admonitions meant to narrow down the all too lax terms of the law-of-nations-under-construction.126 What was formally permitted was not by definition honourable or recommendable from the point of Christian charity. The same duality lies at the root of Grotius's distinction of iustitia interna (acts that were unequivocally right) and iustitia externa (acts whose status depended on the verdict of volitional law and were therefore binding when prescribed and done with impunity when allowed).^{[592] [593] [594] [595] [596] [597] [598] [599]}

Grotius's exposition of natural law has justly earned him a place of honour in the chronicles of research. Still, one can't help wondering whether it was not actually the other domain that commanded his prime interest. To the keen student of the law, the ambiguous and changeable will by definition have a greater appeal and urgency than the obvious and immutable. To Grotius the status and perimeters of the ius naturale secundarium must have posed a for­midable challenge.

The carefree bliss of the Tree of Life had been substituted with the predic­ament of the Tree of Knowledge of Good and Evil that symbolized what Philo had called φρoνησιν μ∈σην.1³2 Far from being a zone of indifference this was precisely where the paramount assignment of man found its sublimation: on the crossroads of the law, morals, religion and politics, thus to illustrate the contingency of the human condition - and the cleft between morality and mathematics.133 Moral rectitude was rarely caught in a single dot. It presented itself in a floating line, a fleeting scale of gradations. It often left one with an elusive, if not deluding grey zone: shifting sands, to which mathematical cer­tainty was by definition denied.¹''³⁴ In this zone of ambiguity natural law stricto sensu should be supplemented with ius naturale convenientiae, â€?the natural law of convenience'.

In highlighting this twilight zone Grotius did not admit to scepticism.^[600] In his Prolegomena he insists that Carneades' thesis would never hold, not just with respect to natural law but neither in the domain where middle justice prevailed.13⁶ As it is, he was well aware he was paying homage to Stoicism from Zeno to Cicero.13⁷ In his State Parallels (c. 1600) he took documented diver­sity, and therefore the relativity of morals, as a given.13⁸ In 1605 he insists on â€?middle justice' as the epitome of the human contingency.^⁹ The same subtly discerning approach is apparent in his Explicatio Decalogi (1640) with respect to the Mosaic legislation.

One may as readily read this conviction of Grotius's in his admonition to self-righteous Mennonist conscientious objectors with respect to the legiti­macy of booty as in his objections to rigid Calvinists 10 years later. And we repeat, from Grotius's perspective unconditional predestination could never be an option. And this in turn helps us to the answer with respect to that other pertinent query of research, whether or not Grotius should be ranked among the adherents of rationalism. Regardless of technical argumentation Grotius's latitude for, indeed preoccupation with moral ambiguity suggests he is not to be ranked in their numbers.

We may carry the argument one step further. The above fits in with the prominent role Grotius reserves for the concept of equity and the latitude he allows to deviate from the strict observance of the precepts of the law. Given its universal and comprehensive aims natural law was by definition a framework of a general character. It was never intended to offer tailor-made answers to the wide range of dilemmas variegated life posed to man. Equity applied to all forms of law, adding a flavour of relaxatio, clementia, indulgentia, such as in the interaction and proportionality of crime and punishment. It presented the virtue of the will to fine-tune overall prescriptions with an appeal to the deeper intent and higher aims of the legislator or, eventually, to natural reason as the court of last appeal.