The �Impious Hypothesis’[551] [552]

In the argument of his Prolegomena Grotius inserts a hypothesis stipulating that the law of nature would remain intact even if one denied the existence of God and his providential care for mankind^⁷ It is probably the most debatable of propositions Grotius ever made and commentators have made much of the thesis.

To start with, we should point out that the type of formula as such - a reductio ad absurdum or per impossibile - had a long pedigree in philosophy that in the last resort can be traced back to Plato.^[553] It is met indiscriminately, and to serve various ends, throughout antiquity, as with Cicero or in the Meditationes of Marcus Aurelius^{[554] [555] [556] [557] [558] and occurs with St. John Chrysostomos and Abelard; Anselmus and Duns Scotus;9° Vazquez and Suarez; Melanchthon and Protestant authors in his wake.}

Grotius's appliance of the hypothesis fits into a very specific context. It serves his refutation of Scpticism from Carneades to Montaigne to Hobbes. It challenges their virtual denial of the very concept of natural law and insistence on expediency rather thanjustice as the proper criterion of law. Grotius, in other words, is not at all concerned with the voluntarist versus intellectual- ist position on natural law, but rather on the concepts of natural law and of justice as such.91 Against this backcloth he insists on man's social appetite for οικεiωσις, which imposes self-restraint; on man's perception of law; and on his power of judgement.

We must conclude that neither the argument nor the purport of the hypothesis (a flat denial of the absurd proposition) can bear the burden of proof heaped on it by commentators to underpin either Grotius's secular­isation or his intellectualism. Grotius's phraseology left the issue whether natural law originated in God's will or intellect in suspense. In proclaiming natural law normative and prescriptive Grotius, by his own standards, pre­supposed a legislator. The author of Adamus exul never considered leav­ing the creator out of the equation - nor would he have got away with it unscathed.9³

However, we must consider yet another moment in Grotius's career. This concerns his first full-fledged appeal to both natural law and revealed divine law in De imperio (first draft c. 1614). It is Grotius's foremost bid to appease the debate circa sacra, his paramount concern throughout the years 1613 to 1618. In line, one might say, with the method he applied in ιpc with regard to the Catarina, Grotius formulates a proposition on principle regarding the legiti­macy of (intervention by) State authority. He presents his findings from both sources of law as coinciding in their blatant rebuttal of the theocratic claims of contra-Remonstrants. He summarily dismisses church authority in issues circa sacra and establishes the exclusive realm of civil authorities.^{[559] [560] [561] [562]}

As regards the pole of Revelation, Grotius in De imperio identifies not two types of lawgiving as Junius or Cunaeus had done, but actually three. Very intentionally he construes - on top of the Mosaic legislation for the benefit of the Jewish Nation and the successive stages of legislation that served mankind as a whole - the preliminary stage of legislation to individuals, these being the early patriarchs.9≡

Interestingly, in ibp Grotius also argues along these lines of a â€?tripartite' Revelation, if from a different perspective. He ramifies divine positive law according to addressee, viz., either the Jewish people (in Moses' legislation) or mankind as such. The â€?universal' address is documented for three successive stages (upon creation, with Noah after the Flood, finally with the Christ).96 He takes the legislation offered to Adam and Noah as representing the â€?uni­versal' tradition - after all, both in a sense were the â€?first man' and as such represented mankind -, and the Mosaic legislation as the more specific excep­tion. As Ertz has argued, Grotius's objective here was precisely to exclude all political instance from the biblical genealogy and to identify the individual as the original bearer of property rights, first bestowed in Eden, then renewed after the floods⁷

7