Natural Law Theory

Hugo Grotius and Samuel von Pufendorf

Modern Natural Law 1

• Affirms the exsistence of a Natural Right.• The idea of a system of norms/legislations

superior to those of the state and which constitute an insurmuntable limit to the activities of those who have the sovereignity.

• May allow citizens to disobbey

Modern Natural Law 2

• Natural law theories have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, John Locke.

• Because of the intersection between natural law and natural rights, it has been cited as a component in the Constitution of the United States, as well as in the Declaration of the Rights of Man and of the Citizen.

‘Old’ and ‘Modern’ Natural Law

• What distinguishes ‘Ancient’ (Aristotle’s, Stoics’, Cicero’s) or Medieval (Aquinas’) theories of Natural law with ‘Modern’ Natural Law is the importance that the latter gives to subjective’s perspective.

• Modern Natural Law is close to liberal theories which stressed the importance of the respect of individual rights by political authorities.

Keywords

• Keywords of Modern Natural Law (even though differently conceived by the various interpreters of this school of thought) are: Natural rights, state of nature, and social contract.

• Natural Law inspired the Declaration of Indipendence (USA – 1776) and the Déclaration des Droits de l'Homme et du Citoyen (France – 1789)

Hugo Grotius (1583-1645)

• Father of Modern Natural Law• In his writing De jure belli ac pacis [1625] he

put the Natural Law as the foundation of a law recognized by all the people of the world (the forthcoming International Law), and as a law based only on reason.

• He was also a theologian

Life 1

• He was a jurist and is considered the founder of international law

• He was an Arminianist, ie, a follower of the religious ideas of the Dutch Reformed theologian Jacobus Arminius (1560–1609) and of his supporters (known as the Remonstrants).

Life 2

• Born in Delft• Grotius was a prodigious learner and entered the

University of Leiden when he was just eleven years old.

• he published his first book at the age of sixteen• Earned an appointment as advocate to The Hague

in 1599 (16 years old) and then as official historiographer for the States of Holland in 1601.

First Time International Law

• His first occasion to write on issues of international justice came in 1604, when he became involved in the legal proceedings following the seizure by Dutch merchants of a Portuguese carrack and its cargo in the Singapore Strait.

Work

• In The Free Sea (Mare Liberum), published in 1609, Grotius formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade.

• Grotius, by claiming 'free seas' (Freedom of the seas), provided suitable ideological justification for the Dutch breaking up of various trade monopolies through its formidable naval power (and then establishing its own monopoly).

De Jure Belli ac Pacis

• On the Law of War and Peace: Three books • first published in 1625• The book proposes a system of principles of

natural law, which are held to be binding on all people and nations regardless of local custom.

• The arguments of this treatise is a theory of Just War.

Historical Context

• Living in the times of the Eighty Years' War between Spain and the Netherlands and the Thirty Years' War between Catholic and Protestant European nations, it is not surprising that Grotius was deeply concerned with matters of conflicts between nations and religions.

• “Fully convinced...that there is a common law among nations, which is valid alike for war and in war, I have had many and weighty reasons for undertaking to write upon the subject. Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes”.

Structure of the book

• The book is divided into three books• Book I advances his conception of war and of

natural justice (there are some circumstances in which war is justifiable).

• Book II identifies three 'just causes' for war: 1. self-defense, 2. reparation of injury, and 3. punishment.

• Book III what rules govern the conduct of war once it has begun (all parties to war are bound by such rules, whether their cause is just or not).

• The De jure belli ac pacis is a theory of the just war, as a public war of the state.

• It has to be regulated by on the base of the respect on International Law and on Natural Law, which is the essential element of the whole political “structure” of Grotius

Grotius’ Conception of Natural Law

• Individuals are social beings and, therefore, try to establish pacific forms of coexistence

• A volontary contract creates a political association based on a recognition of a common right, whose respect is guaranted by the sovereign, to whom the citizens have delegate the sovereignty.

• [Manca lo Chevallier]

Independent by god 1

• His conception of Natual Law was not only independent by the will of god, but even from his existence.

• This kind of conception anticipated the laic and anti-theological conception of the Enleightment.

• Grotius was much closer to the Stoics than to the Scholastics. He derived from them the postulates of natural law from principles of reason rather than of divine order.

Independent by god 2

• Such reason was founded in the human intellect.

• "Natural law is so immutable that it cannot be changed by God himself."

• That led to a deep laicization of the juridical foundation of the state

Positive and Natural Law

• Grotius’ conception spread the idea that Positive Law should conform to Natural Law

• And gave legitimacy to the Right of Resistance against those who would not have respected the Natural Law.

Religion

• Result of the collapse of Christian unity (after Luther and the Protestant Reform) determined that the foundation of all people’s principles was no longer in theology, but in the Natural Law.

Pacta sunt servanda 1.

• Pacta sunt servanda means the respect for promises given and treaties signed.

• It is the essential norm of Modern Natural Law• Absence of an international sovereign

authority

2.

• Grotius was aware that - in his time - there was no law-giving authority superior to the will of the states. It was, therefore, necessary for him to find some principle that could bind the nations to a common standard of behavior.

• Modern international lawyers (like Hans Kelsen) have reaffirmed the same principle as the meta-legal foundation of international law.

Samuel von Pufendorf (1632-94)

• German jurist and political philosopher• His father was a Lutheran pastor, and Samuel

Pufendorf himself was destined for the ministry.

• sent to study theology at the University of Leipzig, which he soon abandoned it for the study of public law – because of the dogmatic teaching

Life and Work

• At the beginning of the 1660s became professor at the University of Heidelberg - Chair of ‘Law of nature and nations’ (the first of its kind in the world).

• In 1668 had to leave Heidelberg and moved to the Univ. of Lund (Sweden).

• In 1672 appeared the De jure naturae et gentium libri octo

• Known for his commentaries and revisions of the natural law theories of Thomas Hobbes and Hugo Grotius.

Main Concepts

• a leading proponent of the idea of a natural law, a system of rights held to be common to all humans and derived from nature rather than from the rules of society.

• This idea is a central concept in the discussions of the rights of citizens in a state.

• Against the influence of the church. His view was essentially that religion was a private matter.

De jure naturae et gentium

• Of the law of nature and nations [1672]

State of Nature 1

• He disputed Hobbes's conception of the state of nature ("war of all against all") and concluded that the state of nature is not one of war but of peace.

• But this peace is insecure, and if something else is necessary for the preservation of mankind: the state.

State of Nature 2

• A modern conception of the State of Nature, not because of men’s sociability, but based on a principle of utility. Necessary for the well-being of every individual.

Two pacts and a decree

• “two pacts and a decree are needed” (Contractualism)

• The creation of the state involves two pacts (agreements) and an intervening decree. (DJN VII.2.7–8)

First Pact

• 1. An initial contract of association occurs when members of a multitude (family-fathers) agree with one another to bond together for mutual security.

• All the members of a group agree individually to bind themselves to any form of state selected by the majority.

2. Decree

• After the first pact follows the selection (via the pragmatic expedient of majority vote) of the specific form of state to be instituted (monarchy, aristocracy, or democracy)

3. Second Pact

• Each citizen of the future state subjects himself to the specific governing agent established (II, 6, 7-9).

• At this stage, the individual contractors unite their wills through separate promises of obedience to a new moral persona equipped with distinctive rights and obligations, and capable of using their combined strength to discipline, compel, and thus govern effectively.

• This is called “civil subjection”

3a. (continuation)

• Like Bodin and Hobbes, Pufendorf identified sovereignty (imperium) as the “vivifying and sustaining soul” of the state.

• It is a new moral quality that emerges from the respective commitments of rulers and ruled, consisting of the former's right to command and the latter's duty to obey. (DJN VII.3.1–2; VII.4.12)

Political power is artificial, not natural

• sovereignty comes from God (as author of the natural law), though only indirectly in this case, or through the instrumentality of reasoning human beings.

• Decisions are made by human contractors in particular circumstances.

• In Pufendorf’s Natural Law, the state and sovereignty are a result of a fear and need of self-conservation

Sovereignty is supreme

• Sovereignty is supreme in the sense that there be no superior or equivalent powers within the state.

• Sovereignty cannot be divided, since that would fragment the unity of will that undergirds the state as an effective authority. (DJN VII.4.11)

• Accordingly, all governing functions, including legislative, judicial, penal, economic, and war-related powers must ultimately reside in the same persona or agency.

Absolutism

• As can be seen, Absolutism (absolute sovereignty, ie, when no areas of law or policy are reserved as being outside the control of the Prince) was so strong at the time to be even reprensented in the so-called “modern” school of Natural Law theories.

• Pufendorf remained an absolutist.

Pufendorf and Hobbes 1

• Nevertheless his polemic with Hobbes, Pufendorf mantained the fundamental part of his theory, ie, the second pact (civil subjection) is the decisive moment.

• Thanks to that moltitude is unified in a political body which act as it was a single person

Pufendorf and Hobbes 2

• The difference with Hobbes is that Pufendorf divide the two moments of the political body (coetus).

• For Hobbes they are given at the same time by the individuals in the state of nature.

International Law

• He defended the idea that international law is not restricted to Christendom, but constitutes a common bond between all nations, because all nations form part of humanity.

Legacy

• Pufendorf's influence was considerable and not only in Germany.

• Locke, Rousseau, and Diderot recommended his inclusion in law curricula.

• Pufendorf also influenced Montesquieu and some “American Founders” such as Hamilton, Madison, and Jefferson as they formulated the political thought of the new Republic.

• He is seen as an important precursor of Enlightenment in Germany.