Editor’s note: Hugo Grotius, also known as Hugo de Groot, was one of the great ‘old authorities’ on Roman-Dutch law. This system of law is not widely practiced around the world anymore, except for a few countries like Sri Lanka, Scotland (to an extent), and, of course, South Africa and its neighbors. Grotius was a proponent of natural law, even though the author of the below piece was not. I believe appreciating the foundational principles of our common law tradition is important for South African law to one day accord with the requirements of a free society.
Martin van Staden
Editor in Chief
Written by: Sir Johannes Wilhelmus Wessels
I shall now proceed to give a brief outline of what, for want of a better term, I shall call the Philosophy of Law as understood by [Hugo] Grotius.
Grotius adopts Aristotle’s division of law into Natural Law and Voluntary or Positive Law (De jure Belli ac Pacis, bk. 1, ch. 1, 10, 2). Throughout both his Introduction [to Dutch Jurisprudence] and his De jure Belli ac Pacis [On the Law of War and Peace] Natural Law plays a very important part. It is, therefore, necessary to know what exactly he meant by Natural and Positive Law, for without an accurate knowledge of these terms we cannot rightly understand the Rechtphilosophie of Grotius. Right (regt, jus) in its wider sense is defined by Grotius as the agreement of the act of a reasonable being with reason, in so far as another person has an interest in such act (1, 1, 5).
Right in its narrower sense is the relation that subsits between a reasonable being and something which belongs to such being, as when I speak of my right (1, 1, 6, De jure Belli ac Pacis, 1, 1, 4).
That is unjust which is contrary to the nature of a society of rational beings.
Law (lex, de wet), which is sometimes also called Jus or Right (because it prescribes what is right), is the outcome of reason, settling something which is honourable for the good of the community. So far the definition might include Natural Law, but Grotius goes on to say that it must be enacted and promulgated by some one who has the supreme rule over a State. That last part of the definition restricts law to Municipal Law.
He then defines Natural Law, or, as he calls it in the Introduction, Angeborne Recht [inborn/inherent right/law], as the dictate of Right Reason, indicating that any act from its agreement or disagreement with the rational and social nature of man has in it a moral turpitude or a moral necessity, and consequently that such an act is forbidden or commanded by God, the author of Nature. This is Whewell’s translation of the original Latin, which I subjoin: Jus naturale est dictatum rectae rationis, indicans actui alicui, ex ejus convenientid aut disconvenientid cum ipsu natura rationali ac sociali inesse moralem turpitudinem aut necessitatem moralem ac consequenter ab auctore naturae Deo actum aut vetari aut praecipi. Grotius therefore starts with the assumption that there is an inborn Reason in man which tells him what is morally good and what is morally bad. This capacity of reasoning is part of the Nature of Man. Now Man’s Reason teaches him that it is for his own good to spend a tranquil, social life (Proleg. 8), and to do everything in his power toward the conservation of society. Those things, therefore, which it is necessary for him to do in order to preserve this tranquil, social life are virtually the sources of Natural Law or Law par excellence. In his Introduction Grotius defines Natural Law as the dictate of Reason pointing out what things are in their very nature honourable or dishonourable, with an obligation to observe the same imposed by God (Intro. 1, 2, 5).
He enumerates the main principles or axioms of Natural Law as follows: (1) To abstain from that which belongs to others; (2) to restore to others what belongs to them; (3) to restore any gain made by the property of another; (4) to fulfil promises; (5) to make good loss caused by negligence; (6) to recognise that certain crimes require punishment (Proleg. 8). Again, as this Natural Law is part of what we call Human Nature, it would exist even if there were no God. But as there is a God, and as the will of God is revealed in the Bible, we know that God has ordained that the breach of these principles of Natural Law shall be punished. Moreover, God has also promulgated certain other laws in the Bible. These laws are the Positive Laws of God or Divine Positive Law (Proleg. 13 and 14). In addition to these laws human experience has learnt that other laws are necessary in order to regulate the social life of man. These laws are framed by man and imposed by man upon man. They are therefore called Human Positive Laws. Before the multiplication of mankind there was only one kind of human positive law, viz., the law promulgated by some supreme lawgiver; but as mankind increased, and the original family broke up into many communities or nations, there arose another kind of human positive law, known as the Law of Nations (Intro. 1, 2, 10). The Law of Nations is that which is universally adopted by all nations for upholding the great human society (Intro. 1, 2, 11). The law which obtains in each particular State is called Municipal Law or Civil Law, and it is a law which derives its origin from the will of the supreme power of the State (Intro. 1, 2, 13).
Grotius’ Division of Law may be therefore expressed in the following table:-
The development of the idea of law according to Grotius may therefore be expressed in the following steps: Human Nature endowed with Right Reason; Natural Law; Divine Positive Law; Human Positive Law; Civil or Municipal Law; and International Law.
The Law of Nature is, therefore, according to Grotius, the basis of all our ideas of law. It is the law without which human society cannot exist, whilst Positive Law depends on utility, and varies in different communities, or even in the same community, according as circumstances alter (Proleg. 16). However much Positive Laws may vary, Natural Law remains immutable, and regulates not only the relations of man to man, but also of nation to nation, or people to people. In this way, therefore, Grotius was able to give the Law of Nations some stable basis upon which he could systematically and methodically build a definite and rational system of International Law. In dealing with Municipal Law he gave to it a greater authority by referring its ultimate principles to Natural Law.
We must not for a single moment imagine that Grotius was the first jurist who attached this great importance to Natural Law. The spread of Greek literature had taught Europe the Hellenic ideas of ethics, justice and law, and Natural Law played a very important part in the Ethics of Aristotle (Nicom. Ethics, bk. 5, c. 10). Earlier jurists, like Cujacius and Donellus, had fully discussed Natural Law, but Grotius was the first Netherlander who gave to his countrymen a systematic treatise on their Municipal Law, based upon the general idea of Natural Law, instead of a haphazard collection of laws and rules of laws.
I shall now proceed to show, as briefly as possible, how Grotius built up on the foundations of Natural Law his system of Municipal Law.
When he comes to deal with the Law of Things he tells us that it is an axiom that by Natural Law all things are common to all men. If this be the case, he stands face to face with the difficulty that no one can be said to be the exclusive owner of any particular thing. This view would strike at the root of ownership. To get over this difficulty he divides all created things into two classes: (1) those which are in such abundance that they suffice for all mankind, as light, air and sea water; and (2) such as cannot be simultaneously used by all and do not suffice for all. Of the latter class some are consumed by use, either immediately or in the course of time. Inasmuch, therefore, as the amount to be consumed is not sufficient for all, some must go without, and therefore these things cannot be owned by all mankind in common. He then goes on to assume that Reason, in order to prevent strife and disputes, allowed men to retain for themselves and their family what they had themselves produced. Thus arose ownership. Mere possession also gave a right to he thing possessed by virtue of the principles of Natural Law (Intro. 2, 3, 2). When once things come to be divided amongst the various members of the community, Natural Law once more stepped in and taught men that each must be content with what he had acquired for himself, for if he acted otherwise the tranquillity of Society would be disturbed, and such a state of things was contrary to Right Reason; hence arose the maxims, Nemo debet locupletari ex alterius incommodo and Sic utere tuo ut alienum non laedas.
If, then, Natural Law allows the acquisition of ownership and the free control over the acquired object, it also allows the object when once acquired to be transferred to another. Since Natural Law recognises ownership, it follows as a corollary that the owner can regain possession of the article from the person who deprived him of that possession. Here, however, Natural Law ceased to supply an effective remedy, for the only means of re-obtaining possession known to Natural Law is force, and as the use of force would lead not to tranquillity but to disturbance, man himself had to make provision by means of Municipal Law to enable the owner to regain possession, or, in other words, to vindicate his property. For this purpose Municipal Law called into being Courts of Justice (2, 3, 3). Natural Law made no distinction between the strong and the weak, the adult and the minor, but man’s sense of Right and Justice devied by means of Municipal Law as distinction between those who had sufficient sense to know what was for their own interest and those who had not. Municipal Law, therefore, determined who had the power to alienate their property and who had not, and in this way arose the various restrains on alienation (Intro. 2, 5, 3).
Passing over from the Jus Rerum [law of things] to the Jus Obligationum [law of obligations], Grotius tells us that in this great division of law Natural Law recognised two sources of personal claims: (1) Promissio; and (2) Inequality (3, 1, 3).
Promissio is the voluntary act of a man whereby he promises something to another with the intention that that other shall accept the same and thereby acquire a right against the promissor (Intro. 2, 3, 10). The regulations with regard to this manner in which this personal claim is to be enforced are left by Natural Law to the Municipal Law of the community.
Inequality is the obligation to compensate another, either for some benefit received at the expense of another or for some loss caused by a direct injury. (Intro. 3, 1, 14 et seq.). Grotius’ system recognises the free will of man. His ethical and religious views as an Arminian would not admit man to be destitute of a free will. Man is a free agent, and has, according to Grotius, the power of determining his own conduct. This capacity of man to determine his own acts is one of the qualities of human nature. Natural Law, therefore, also recognises a free will, and only recognises obligations in connection with a free will, and therefore where there is no will (e.g. in the case of a lunatic) there can be no obligation. Municipal Law has, however, for the good of the community restricted obligations to such cases as are not contra bonos mores or contra legem.
Sometimes Natural Law operates through both Promissio and Inequality simultaneously; e.g. if I purchase a horse which is delivered to me I must pay the price, (1) because I have promised to do so, and (2) because I should otherwise be enriched at the expense of another (Intro. 3, 1, 20). Grotius even calls in Natural Law to show that interest is more than a mere municipal provision. Natural Law prescribes that I should place the person who lends me a thing in the same position in which he would have been if he had not lent me the article. If, therefore, the lender is deprived of the use of the article for a year, he ought to get back not only the article, but what the possession of that article was worth to him. When the thing lent is money, the lender is entitled by Natural Law to get back the money he has lent together with a sum equivalent to what that money under ordinary circumstances would have enabled him to earn with it. Though Natural Law allows the stipulation of interest, Municipal Law determines what the amount shall be according to the circumstances of the community (Intro. 3, 10, 9). For very much the same reason Natural Law approves of rent and profit (Intro. 3, 52, 2), but Municiap Law determines the outside limit of this profit (e.g. laesio enormis) and when it is inequitable to charge rent (remissio mercedis).
Grotius divides Inequality into amicable and inimical inequality. The former we have considered; the latter gives rise to delict. Right Reason teaches us that it is contrary to Natural Law to do an injury to another, and if an injury is done it should be compensated (Intro. 3, 32, 1 et seq.). In this way, then, Natural Law prohibits one from depriving another of his property (fructum). It also provides compensation for molestation, breaking one’s word, defamation, &c.
The mere breach of a Municipal Law is contrary to Natural Law, for Right Reason teaches us that no society can exist without general laws, and those, therefore, who do not conform to them act unreasonable (Intro. 3, 32, 6). The obligation to remove the inequality depends on Natural Law, but the exact liability is more closely defined by Municipal Law (Intro. 3, 32, 7). Grotius then proceeds to show in detail that every delict is prohibited by the principles of Natural Law, but that the amount and quality of the compensation is regulated by Municipal Law. After dealing with delicts he proceeds to show that crimes also are contrary to the Law of Nature, and that the punishment for crime is also a provision of Natural Law.
Reason teaches us that some men are good and others wicked, and that wickedness can only be controlled by fear. Reason also teaches us that fear can only be induced by inflicting pain, hence the punishment for crime is a dictate of Right Reason, and therefore within the province of Natural Law. What, however, the punishment should be varies according to the degree of culture attained by the community, and thus belongs to Municipal Law (Intro. 3, 32, 7). Judicial procedure belongs wholly to Municipal Law, for Natural Law does not determine how the compensation is to be claimed or arrived at.
Such then is the Philosophy of Law which Grotius has taken over from the schoolmen and applied to the law of Holland. The theory of Natural Law has not reached with him the revolutionary character it attained in the following century. He merely used it to distinguish Positive Law form that sense of justice which some philosophers considered to be innate in man and to have existed ever since man came into the world. During the next century, however, it was boldly asserted that Positive Law which did not conform to the principles of Natural Law was no law at all, and could be disobeyed with impunity. This view during revolutionary times served as a pretext for overthrowing such portions of the Positive Law as had become so antiquated as to be no longer maintainable in the community. Natural Law was then advanced to destroy the old and to introduce a new Positive Law. We find, however, in Grotius the germs of this view, for he tells us, “What is forbidden by Natural Law cannot, circumstances remaining the same, be commanded, nor can that which is commanded by it be forbidden; and in this sense this species of law is called immutable” (Intro. 1, 2, 6).
We do not nowadays base our systems of jurisprudence upon Natural Law, and therefore students of law are apt to forget the immense importance which the Law of Natural had for the jurists of the sixteenth, seventeenth and even the eighteenth centuries. The whole theory of the Law of Nature is now so thoroughly exploded that it is difficult for the modern student to imagine how the jurists of former years ever came to attach such importance to the abstraction – Natural Law. Unless, however, he does make some effort to grasp the theory of Natural Law, he will never be able to understand the jurisprudence of the seventeenth and eighteenth centuries.
Almost every jurist of the seventeenth century firmly believed that there once was a time when no organised communities existed, and when each man was a law unto himself. They also believed that God had implanted in the original man the gift of reason, and that by this reason he was able to discover the elemental rules of right and wrong conduct. These elemental rules constituted the Law of Nature. They were as obvious to the thoughtful jurist as the material objects around him (De jure Belli ac Pacis, Proleg. 39).
Although jurists and philosophers like Grotius, Puffendorff and Hobbes differed materially as to the origin of the Law of the Nature, they never doubted its existence. As the development of law came to be studied historically, so the theory of a Law of Nature became more and more untenable. The investigation of the manners and customs of ancient nations has shown us that there never was a time when man reasoned out what was in conformity with, and what did not conform to, Nature. Customary rules of conduct are adopted unconsciously and without any deliberate plan, and are always the resultant of a great number of forces almost impossible to isolate. Man never was the free reasoning agent which the priests of Natural Law would have us believe. He has always been fettered by a thousand invisible forces which we call circumstances, and for his own preservation he has adopted such laws and customs as have seemed to him best for himself and his race. Moreover, propounders of the Law of Nature have really confounded what has virtually taken place with what they conceived should have taken place, and once convinced that there ought to have been an abstract Natural Law they accepted it as having existed through all time and started building upon it their systems of jurisprudence. As, however, their Law of Nature usually represented a high moral code, the structure built upon this foundation, though perhaps scientifically inaccurate, was practically sound, and tended very largely to eradicate all that was barbarous and brutal in the customs of the people.
We owe to the theory of Natural Law far more than is usually imagined. We owe to it our modern international law and a great deal of the law reform of the seventeenth and eighteenth centuries. A correct appreciation, therefore, of the philosophy of law as accepted by Grotius and adopted by nearly all the great writers on the Roman-Dutch law is not unnecessary and not the waste of time which so many believe it to be. It was only after the Roman-Dutch law had been supplanted by the Code Napoleon that these hypotheses were seriously attacked, and that the system of jurisprudence based on Natural Law fell into discredit. In order, therefore, to understand the scientific development of the Roman-Dutch law the student should never lose sight of the fact that Natural Law or the Law of Nature was the corner-stone of the whole fabric.
Author: Sir Johannes Wilhelmus Wessels (1862-1936) was a judge in the Transvaal between 1902 and 1923, and a Judge of the Appellate Division of the Supreme Court of South Africa between 1923 and 1936, the last four years of which he served as Chief Justice of South Africa.
Disclaimer: This article is an extract from the 1908 book, History of the Roman-Dutch Law, by Sir Johannes Wilhelmus Wessels. The book was published by the defunct African Book Company Ltd in Grahamstown. The Internet Archive lists the work as copyright-free, however, if you own the copyright to this book, please notify the Rational Standard immediately and it will be removed.