Grotius, Necessity and the Sixteenth-Century Scholastic Tradition

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Bart Wauters ie Law School – ie University, Madrid [email protected]

Abstract

The essay investigates elements of sixteenth-century scholastic thought that have played a role in Grotius’s doctrine of necessity: the nature of the rights of the person in extreme need; the relation of the right of necessity to self-preservation; the compact that lies at the origin of property rights; and finally the obligation of restitution once the emergency is over. Grotius did not develop the doctrine of necessity as an abstract principle about the relationship between private property and subsistence rights. In- stead, he used it primarily as a normative principle on permissible behavior in times of war. The comparison with sixteenth-century thought and the practical purposes for which he developed the principle help to understand better the Grotian conception about the subjective nature of the right of necessity and its normative foundation.

Keywords

Grotius – right of necessity – theory of property – restitution

That Grotius’s doctrine of necessity one way or another inspired Pufendorf’s and Locke’s much debated ‘right of charity’ is a well-known fact.1 Equally

* The author is very grateful to H.W. Blom, Dennis Klimchuk, G.P. van Nifterik and an anony- mous reviewer of Grotiana for their useful comments on the draft version of this text. 1 On the right of necessity in Grotius and Pufendorf, see S. Buckle, Natural Law and the Theory of Property. Grotius to Hume (Oxford: oup, 2002), pp. 34 and 47; J. Salter, ‘Grotius and Pufen- dorf on the right of necessity’, History of Political Thought 26 (2005), 284–302. J. Udi, ‘Hugo Grotius and Samuel Pufendorf on the power of necessity to override property rights’, Ágora. Papeles de Filosofía 33 (2014), 1–18. On the right of charity in John Locke, see, among others,

130 Wauters known are the medieval doctrines of theologians and canonists about the right of a person in extreme need to take another’s property to preserve his life.2 There is much less research into the contribution of sixteenth-century scho- lastics to the debate.3 Grotius first developed his theory of property in the so-called De iure praedae and in the Mare liberum with a practical purpose in mind: the defense of the freedom of the seas. In the De iure belli ac pacis, this practical objective was never entirely forgotten although the property theory was embedded in the broader theoretical framework of finding out what kind of infringements on property rights would legitimate war, and were permissible during episodes of war. Grotius maintained a remarkable consistency in his account of the

J. Waldron, God, Locke, and Equality. Christian Foundations in Locke’s Political Thought (Cambridge: cup, 2002), pp. 151–87. 2 J. Coleman, ‘Property and poverty’, in The Cambridge History of Medieval Political Thought c. 350–c. 1450, ed. J.H. Burns (Cambridge: cup, 1988), pp. 607–52; J. Finnis, Aquinas. Moral, Political and Legal Theory (Oxford: oup, 1998), pp. 188–96; P. Garnsey, Thinking about Prop- erty. From Antiquity to the Age of Revolution (Cambridge: cup, 2007), pp. 84–136, 195–203, 215–221; J. Kilcullen, ‘The Origin of Property: Ockham, Grotius, Pufendorf, and some others’, in A Translation of William of Ockham’s Work of Ninety Days, ed. by J. Kilcullen and J. Scott (Lewiston: Edwin Mellen Press, 2001), vol. ii, pp. 883–931; V. Mäkinen, ‘Rights and duties in late scholastic discussion on extreme necessity’, in Transformations in Medieval and Early- Modern Rights Discourse, ed. by V. Mäkinen and P. Korkman (Dordrecht: Springer, 2006), pp. 37–62; V. Mäkinen, Property Rights in the Late Medieval Discussion on Franciscan Poverty (Leu- ven: Peeters, 2001); C. Pierson, Just Property. A History in the Latin West. Volume One: Wealth, Virtue and the Law (Oxford: oup, 2013), pp. 77–95; S. Swanson, ‘The medieval foundations of John Locke’s theory of natural rights: Rights of subsistence and the principle of extreme necessity’, History of Political Thought 18 (1997), 399–455; B. Tierney, Medieval Poor Law: A Sketch of Canonical Theory and its Application in England, (Berkeley – Los Angeles: Univer- sity of California Press, 1959); B. Tierney, The Idea of Natural Rights. Studies on Natural Rights, Natural Law and Church Law, 1150–1625 (Atlanta: Scholars Press, 1997), pp. 131–203; B. Tierney, Liberty and Law. The Idea of Permissive Natural Law, 1100–1800, (Washington dc: The Catholic University of America Press, 2014), pp. 15–156. 3 Existing accounts on the sources of Grotius’s property theory do not specifically discuss the doctrine of necessity, see e.g. R. Feenstra, ‘Der Eigentumsbegriff bei Hugo Grotius im Licht einiger mittelalterlicher und spätscholastischer Quellen’, in Festschrift für Franz Wieacker zum 70. Geburtstag, ed. by O. Behrends (Göttingen: Vandenhoeck und Ruprecht, 1978), pp. 209–34. Specific studies on the property theory of sixteenth-century theologians do not discuss it either: P. Grossi, ‘La proprietà nel sistema privatistico della seconda scolastica’, in La seconda scolastica nella formazione del diritto privato moderno, ed. by P. Grossi (Milano: Giuffrè, 1973), pp. 117–222; M.-F. Renoux-Zagamé, Origines theologiques du concept moderne de propriété (Genève-Paris: Librairie Droz, 1987).

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Necessity and the Sixteenth-century Scholastic Tradition 131 foundations of private property, although he came to articulate some of its elements with more depth in his mature writings. The doctrine of necessity, for instance, was explicated only in the De iure belli ac pacis, as was the idea of an agreement (pactum) in the account of the origin of private property. For Grotius, private property had emerged gradually out of an age of simplicity. In a first, pre-civil stage the earth’s resources were up for grabs by anyone, and each individual was at liberty to use the produce of the common for consumption. After this initial stage, men started to work the land to lift their way of life above subsistence level. Given the scarcity of resources, the common was divided; first, consumables and other movables, later also land. The division of land itself also took place in several steps, propelled by the growth of population. Somewhere along this gradual process there were one or more agreements about the adjudication of resources, ‘pacts’ that could be explicit, as in the case of a division, or tacit. The tacit agreement consisted in the idea that ‘each should appropriate to himself, by right of first possession, what could not have been divided’ (ibp ii.2.2.5). In the emergence of a private property regime, the division of land was the last step; once land had been divided, people recognized that ‘a new sort of right’ had come into existence (ibid.), and that a law should be established to regulate it (ipc xii, fol. 100v).4 With such a law, civil society secured the institution of private property, although the principle of occupation underlying property was pre-political and sanctioned by natural law.5 The principle of necessity implied that in a situation of extreme need, the ‘ancient right of using things, as if they still remained common, must revive, and be in full force’ (ibp ii.2.6.2).6 The reason was that, when the agreement

4 Unless specified otherwise, quotations of the works of Grotius come from the following translations: The Rights of War and Peace, ed. by R. Tuck (Indianapolis: Liberty Fund, 2005), and Commentary on the Law of Prize and Booty, ed. by M.J. van Ittersum (Indianapolis: Liberty Fund, 2006). 5 Grotius’s property theory has been discussed frequently. Useful secondary literature with further references: Buckle, Natural Law and the Theory of Property, pp. 1–52; A. Fitzmaurice, Sov- ereignty, Property and Empire, 1500–2000 (Cambridge: cup, 2014), pp. 85–101; J. Salter, ‘Hugo Grotius: Property and Consent’, Political Theory 29 (2001), 537–55; B. Straumann, Roman Law in the State of Nature. The Classical Foundation of Hugo Grotius’ Natural Law (Cambridge: cup, 2015), pp. 175–88; Tierney, The Idea of Natural Rights, pp. 316–42; R. Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: cup, 1979), pp. 58–81. 6 About the pedigree of res omnium communes, see M.J. Schermaier, ‘Res Communes Omnium: The History of an Idea from Greek Philosophy to Grotian Jurisprudence’, Grotiana 30 (2009), 20–48.

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132 Wauters to the principle of occupation was made, it was ‘supposed to have been established with this favourable exception, that in such cases one might enter again upon the rights of the primitive community’ (ibp ii.2.6.4). That conclusion follows an interpretive effort of the agreement, which, after all, was un- recorded and ‘not written’ (ibp ii.2.6.1). Grotius’s interpretation was based on several layers of thought. First, there was the presumable intention of those who had made the division: ‘For had those that made the first division of common goods been asked their opinion in this matter, they would have answered the same as we now assert’ (ibp ii.2.6.4). Second, when interpreting the agreement to divide the common one should presuppose that the dividers intended ‘to deviate as little as possible from the rules of natural equity (aequitas naturalis)’ (ibp ii.2.6.1). Third, necessity could not only be invoked as to private property, but could be more widely used as a private law defense ‘in all laws of human institution’ (ibp ii.2.6.2-3). To prove the point, Grotius adduced several Roman law examples such as the Rhodian law of jettison (Dig. 14.2.2.2). Finally, necessity could be linked with the principle of self-preservation: ‘In a common calamity, every man looks to himself, and takes care of his own interest’ (ibp ii.2.6.4). The combination of these arguments leads Grotius to conclude that it was inconceivable to think of an agreement to divide the common that would not somehow include the ‘right of necessity’. Benjamin Straumann has claimed that Grotius’s natural law theory relied primarily on the classical heritage of Roman law and Ciceronian ethics;7 others, such as Brian Tierney, emphasized the heritage of the medieval canon law.8 In this essay, we will investigate to what extent Grotius built the doctrine of necessity and his property theory on scholastic ideas, and how these could fit in the primary classical account. We will focus on four themes that lie at the heart of the relationship between ownership and necessity: the nature of the rights of the person in extreme need; the relation of the right of necessity to the natural right of self-preservation; the compact that lies at the origin of property rights; and finally the obligation of restitution once the extreme necessity is over. The comparison with sixteenth-century thought will help us to understand better the nature and the purpose of the right of necessity as conceived by Grotius himself. In particular we will try to offer an answer to the question whether Grotius considered it as a subjective right, and what he considered to be the normative foundation of such right.

7 Straumann, Roman Law in the State of Nature, p. 3. 8 Tierney, The Idea of Natural Rights, p. 167, who speaks of “déja vu all over again” when com- paring seventeenth-century natural law theories with medieval canon law.

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Necessity and the Sixteenth-century Scholastic Tradition 133

Nature of the Right of Necessity

Grotius uses the term ‘ius necessitatis’ only once, and then possibly in an objective sense, not in the sense of a subjective right (ibp ii.2.10). Likewise, when he said that in times of extreme necessity the ‘ius pristinum rebus utendi’ revived (ibp ii.2.6.2), and the ‘ius primitivum’ was received (ibp ii.2.6.4), we should not take for granted that he meant a subjective kind of right. However, I will argue that, given the scholastic tradition he himself refers to, it is plausible that Grotius had a subjective right of necessity in mind, a conclusion that can also be defended on its own merits.9 Grotius equated the power to take life-saving goods without the owner’s permission in times of necessity with the primeval right of using things. It is therefore essential to have a closer look at the rights of individuals in the state of nature to the goods they were consuming. Grotius makes clear that in relation to the state of nature he uses the word ‘property’ (dominium) because of a lack of alternative: ‘owing to the poverty of human speech, it has become necessary to employ identical terms for concepts which are not identical’ (ipc xii, fol. 100v). In the state of nature, some kind of ownership (dominium quoddam) did exist, but it was ‘ownership in a universal and indefinite sense’ (ipc xii, fol. 101). God had bestowed the earth to the human race as a whole, ‘not upon individual men’ (ipc ii, fol. 6). ‘Common’ simply meant ‘undivided’; it referred to the fact that the produce of the earth was at the disposal of anyone and that no one could exclude others from the use of it. Individuals had no specific rights or claims on particular goods but each was at liberty to use the common. This liberty was the same for each individual, and as such it was ‘common’. To define the exact nature of this original use-right, Grotius referred to technical terms that could be traced back to the Franciscan poverty disputes (ipc xii, fol. 100v). In the thirteenth and fourteenth centuries the friars had entered into a series of controversies with several other ecclesiastical institutions about the exact nature of their relationship with the goods of the order. Given their vow of absolute poverty, the Franciscans denied having any property rights over these goods and professed to have a mere usus facti, a factual use, over the goods of the order. This meant that the friars had no legal claim to the use of the goods and by consequence could not enforce or protect it in court.10 It was this same usus facti that Grotius had in mind to define the relationship of the individuals with the common in the state of nature: only factual detention

9 See also D. Klimchuk, ‘Property and Necessity’, in Philosophical Foundations of Property Law, ed. by J. Penner and H.E. Smith (Oxford: oup, 2013), pp. 47–67. 10 Tierney, The Idea of Natural Rights, pp. 93–203.

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134 Wauters over the goods while the individual was in control over them, and absence of legal protection. It is not really surprising that Grotius explicitly referred to the technical terms of the Franciscan poverty dispute. Most of the Spanish authors whose work he knew, such as Soto and Vázquez, discussed the dispute, and moreover linked explicitly the idea of usus facti with the nature of extreme necessity. It is interesting to have a closer look at the idea of usus conceived by Soto, who seemed to have struggled with the precise nature of this right. In an early treatise on dominium Soto stated that extreme necessity rendered all things common again as to their use, regardless of the appropriation that had taken place: ‘Non obstante quacumque appropriatione, in necessitate extrema omnia sunt communia saltem quoad usum’.11 According to Fernando Vázquez de Menchaca, who commented on Soto’s usus in situations of extreme necessity, Soto had in mind a nudus usus facti.12 Even though Soto did not use expressly the specific term of nudus usus facti in relation to the position of the person in extreme need who takes something out of the surplus of the affluent, Vázquez had a point. Soto was obviously familiar with the Franciscan poverty dispute and the technical terms employed there, but he found the distinction between usus facti and usus iuris rather complicated, at least as to comestibles.13 Soto made the comparison with usufruct. If the owner (verus dominus) grants me the usufruct of a thing, then my use of the thing is legitimate. If the usufruct is legitimate, that is because it has been granted according to law (iure concessus). Similarly, if you give a bread to a mendicant friar, why wouldn’t its use by the mendicant be according to the law?14 In his earlier lecture De dominio, Soto had stated straightforwardly that as to food and other consumables the friars had usus iuris, a use in accordance with the law.15

11 Domingo de Soto, Relectio de dominio, ed. by Jaime Brufau Prats (Salamanca, 1995), n° 23, p. 146. 12 Fernando Vázquez de Menchaca, Controversiarum illustrium aliarumque usu frequentium libri tres (Venetiis, 1564), I.17.10: ‘Nam & si tempore (inquit [Sotus]) necessitatis egenus rebus, possit potiri alienis ad suum usum & victum necessarium, non ideo earum dominium acquirit, sed nudum usum facti’. 13 Domingo de Soto, De iustitia et iure libri decem (Salmanticae, 1553), iv.1.1: ‘At vero distinctio haec non est intellectu tam facilis, quam dictum’. 14 Soto, De iustitia et iure, iv.1.1: ‘Nam usus iuris non alius intelligitur quam quod ius ex voluntate domini permittit: Legavit mihi quisquam usumfructum pecuniae inde fit usus esse mihi legitimum. Si ergo legitimus, est ergo iure concessus. Pari modo si erogas men- dicanti panem, cur usus ille mendicantium non erit iuridicus?’. 15 Soto, De dominio, n° 7, pp. 118–20.

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Necessity and the Sixteenth-century Scholastic Tradition 135

However, in his posterior De iustitia et iure Soto took a different turn. He observed that the successors of John xxii, who had renounced ownership over the goods of the Franciscans, had not followed him in that decision and had returned to the situation of his predecessors, with papal dominium over the goods of the order. Soto compared the position of the Franciscans towards comestibles with those of guests at a banquet: they didn’t have any rights of use and still they consumed the goods. Similarly, in Deuteronomy 23.24-25 a person was allowed to eat from the grapes of his neighbor’s vineyard, but not to put any in his basket, which according to Soto was proof that it was possible to make a distinction between usus and dominium.16 Furthermore, a person in extreme need could take the bread of someone else who was more affluent, but he didn’t acquire any dominium in it nor could he sell it. All in all, Soto reached the conclusion that as to food and other consumables there was something to be said for the distinction between usus facti and usus iuris, because having usus iuris implied that the verus dominus could not avoid that kind of use. Nevertheless, the legal owners of the Franciscan goods did have the legal capacity to deny them access to that kind of goods, and thus Soto concluded that the mendicants’ position was one of usus facti.17 For Soto, usus facti had implied that the legal owner had the power to deny the users access to the goods, but not everyone followed him on this aspect. Lessius, for instance, thought that the person in extreme need could kill the owner, if the latter impeded access to them.18 Likewise, the most influential of Spanish masters, Francisco Suárez, stated that the owner could not licitly prohibit the person in extreme need to take the things. The reason was that the person in extreme necessity had a natural right to do so and the owner had a charitable duty to respect that natural right.19 But what was the normative foundation to respect the right of the person in extreme need: the charitable

16 Soto, De iustitia et iure, iv.1.1. Interestingly, in his earlier lecture De dominio, Soto had used the same text, but rather to prove that the person who ate the grapes had a usus iuris: Soto, De dominio, n° 7. 17 Soto, De iustitia et iure iv.1.1. 18 Leonardus Lessius, De iustitia et iure caeterisque virtutibus cardinalibus libri iv (Lovanii, 1605), ii.12.12.69 : ‘Hinc sequitur […] si quis in tali necessitate constitutus, vellet aliquid sibi necessarium occupare, non posse a domino illius rei prohiberi; quia iure suo utitur quare poterit se tueri, tamquam qui iniuste ab altero invadatur; & si necesse sit, servato iustae defensionis moderamine, impedientem occidere’. 19 Francisco Suárez, Opus de triplici virtute theologica, Fide, Spe, & Charitate. Tractatus de charitate (Lugduni, 1621) vii.4.3: ‘Item, qui extreme indiget, habet ius naturale utendi bo- nis alterius … et potest illa accipere, neque alter potest prohibere sine iniuria: ergo tenebi- tur ipse etiam dare illi, et servare alteri illud ius, praecipue habita ratione charitatis’.

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136 Wauters duty of the owner, or the natural right of the person in extreme need? When Suárez managed the term ius naturale utendi, he relied on the technical lan- guage developed during the Franciscan poverty dispute. Ever since Ockham it was possible to conceive that the permission (or charitable duty) of the owner did not confer any new right on the person in extreme need because the latter had a natural right,20 and it is in this sense that Suárez understood the ius naturale utendi: the necessitous did not need a positive faculty to take, he only required that the owner be denied to prohibit its use.21 Grotius drew the logical conclusion that the right of necessity did not correspond to the charitable duty of the owner (ibp ii.2.6.4).22 What’s more, Grotius must have conceived this right stronger than Soto and more like Suárez in the sense that the legal owner had a duty to abstain from defending his property against a person in extreme necessity who took it from him in order to survive.23 To use Hohfeldian terminology: for Grotius the right of necessity was more like a privilege, or liberty – he actually uses the term licentia (ibp ii.2.7). Just like the common was open to be apprehended by the first takers, the person in absolute need was at liberty to take from the surplus of others those things necessary to survive. This liberty resulted in the owner not having a right to prevent people from taking life-saving goods in a situation of emergency.24

20 Tierney, The Idea of Natural Rights, p. 122. 21 Francisco Suárez, Operis de religione pars secunda, quae est de statu religionis (Lugduni, 1632), viii.5.38: ‘Dico ergo tunc non indigere facultate, ut ita dicam, positiva, sed sufficere negationem prohibitionis’. 22 Grotius referred explicitly to a tradition of scholastic commentators who, following Aqui- nas (S.Th. iia–iiae, q. 66, art. 7) and Cajetanus, stressed more the charitable duty of the affluent to share with the poor (ibp ii.2.6.4). Good examples of this tradition are Pedro de Aragón, De iustitia et iure (Venetiis, 1595), ad S.Th. iia–iiae, q. 66, art. 7, and (explicitly referred to by Grotius) Diego de Covarruvias, Variarum ex iure pontificio, regio, & caesareo resolutionum libri iii (Salmanticae, 1552), iii.14.5. Grotius himself was also of the opinion that the affluent had the duty to share with the less fortunate (De ver. ii.14) but did not conceive it as the ground for the right of necessity; see also ibp ii.22.16, where Grotius stressed that there was no way to enforce the duty to charity. 23 Klimchuk, ‘Property and Necessity’, p. 48. See also the commentaries of Grotius’s edi- tors and translators Gronovius (1660) and Jean Barbeyrac (1738) to ibp Prolegomena, §10. 24 For the correlation between a privilege and a ‘no-right’ – if X has a privilege (or liberty), with respect to Y, to φ, that means that Y has no right against X that X not φ – see W.E. Ed- mundson, An Introduction to Rights (Cambridge: cup, 2nd edn, 2012), pp. 73–81. Compare with N. Simmonds, Central Issues in Jurisprudence. Justice, Law and Rights (London: Sweet & Maxwell, 3rd edn, 2008), p. 298.

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Necessity and the Sixteenth-century Scholastic Tradition 137

Self-preservation

During the early fourteenth century writers such as Godfrey of Fontaines or John of Paris elaborated on earlier canonist thought to link the right of necessity with the right to self-preservation,25 and this tradition was continued in the sixteenth and early seventeenth century. Soto, for instance, linked the right of necessity with an inborn natural right to preserve oneself: ‘quoniam tam in- natum est homini ius servandi sese ut illi alia cuncta cedant’.26 Lessius too stated that everyone maintained a natural right to protect his life; otherwise it would not have been rational to divide the goods of the earth in the first place.27 Suárez joined this conclusion. He analyzed the case of a pauper who had only factual control (tentio facti) over a thing. If someone took away the good from the pauper, the latter had a natural right to defend himself and everything that he possessed, even if he had no legal property rights over the goods. The reason why the defense over oneself also extended to the defense over the goods under one’s control, is because bringing these goods under one’s control formed part of one’s naturale dominium in proprias actiones. He added that the right could also be linked with the natural right to feed and protect one’s body.28 Like Suárez, for Grotius it was the natural dominion over one’s suum that provided the basis for the original use-right. God had ‘bestowed upon living creatures their very existence’ and therefore also ‘bestowed the things necessary for existence’ (ipc ii, fol. 6). Following an idea of Aquinas, and repeated by countless sixteenth-century theologians, Grotius explained that inferior things

25 Mäkinen, ‘Rights and duties’, pp. 45–50; Tierney, The Idea of Natural Rights, pp. 84–85. 26 Soto, De iustitia et iure, V.3.4. 27 Lessius, De iustitia et iure, ii.12.12.68: ‘Cuius ratio est, quia finis rerum inferiorum est, ut hominibus in necessitate sint subsidio, ac ut homines per illas possint vitam suam con- servare et tueri : ac proinde omnibus a natura hoc ius competit. […] Censeri itaque debet divisio esse facta, reservato cuique iure naturali, quatenus erat necessarium ad vitam tu- endam: alioquin non esset rationabili modo facta’. 28 Suárez, De statu religionis, viii.5.38: ‘dicendum est, quamvis ille non habeat nisi ten- tionem facti, non posse invitum illa privari … quia unusquisque habet naturale ius ad defendendum et se, et quidquid apud se possidet, et tenet absque alterius iniuria. Hoc autem ius non necessario est dominium acquisitum in rem apprehensam, sed est naturale dominium in proprias actiones, ad quas pertinet, et usus facti de re iuste possessa, vel obtenta, et ipsam et tentio rei, quatenus in ipsa moraliter actio, per quam apprehensa est. Potest etiam hoc ius revocari ad illud ius naturale, quod homo habet ad nutriendum, protegendum, et conservandum proprium corpus’. On this idea, see also Tierney, The Idea of Natural Rights, p. 308.

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138 Wauters were at the service of superior creatures, and, given that ‘man excels in worth all other created things’, the earth’s fruits and resources were at his service (ipc ii, fol. 6; ihr ii.3.2). In De iure praedae, where a youthful Grotius presented his now famous system of nine rules and thirteen laws as the basis for a new jurisprudence, the idea of self-preservation as the ground for seizure was made more explicit. The first rule of the Grotian system of jurisprudence was that what God had shown to be his will, is law. Nature was the place where God had shown his will. Self-interest being one of nature’s primary principles, was therefore a clear sign of God’s design. From the first rule thus emerged the first two laws of the Grotian system: it was ‘permissible to defend one’s own life’, and ‘to acquire for oneself, and to retain, those things which are useful for life’ (ipc ii, fol. 6). The two laws were obviously related to each other, as they are derived from the same primary rule. In the state of nature, seizure of the earth’s resources was therefore perfectly legitimate. Once an individual seized or occupied a thing, it entered into the sphere of his suum, sometimes even up to the point of a complete identifica- tion. That was the case of consumables, which ‘converted into the very substance of the user’ (ipc xii, fol. 101). Because the thing entered into the sphere of what is one’s own, it could licitly be defended against attempts to snatch it away, even, as also Lessius had pointed out, to the point of killing (ibp ii.1.11- 13). The defense of one’s personal integrity was derived from the first law that permitted to defend one’s own life (ipc viii, fol. 39; ibp ii.1.11-13). As Suárez, Grotius linked self-defense with dominium over one’s actions, including the right to get what was needed to survive.29 In this sense the right of necessity was certainly what Grotius himself called a ‘perfect’ right (ibp I.1.4), something that the rightholder ‘in strictness’ could demand (ibp Proleg.10) and the viola- tion of which constituted a wrong.30

Compact and Agreement

For Grotius, private property had emerged gradually out of an age of simplicity. In the De iure belli ac pacis Grotius introduced the idea, which was not explicit in his earlier writings, that in this gradual process an agreement (pactum) to

29 A. Mancilla, ‘What we own before property: Hugo Grotius and the suum’, Grotiana 36 (2015), 63–77 (pp. 74–75). 30 See the comments of Jean Barbeyrac in note 21 to ibp I.1.4; compare with Salter, ‘Grotius and Pufendorf’, p. 287. For the Grotian conception of the principle of self-preservation, see Straumann, Roman Law in the State of Nature, pp. 103–19.

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Necessity and the Sixteenth-century Scholastic Tradition 139 the principle of occupation as a way to establish property rights had been introduced. But the pre-civil ius utendi as well revolved around physical seizure. Just like Soto (and John xxii before him), Grotius found that there were some complications as to the exclusivity of certain goods, above all, but not only, consumables. The use of consumables such as food and drink inevitably meant using up, thereby denying others to make use of the same thing. Therefore, even before the pactum ‘a certain form of private property was inseparable from use’ (ipc xii, fol. 101). Although the process introducing private property was gradual, it could be divided in two stages, a first pre-civil stage where the seizure of things created rights, and a second stage where the private property was regulated and secured through the agreement to the principle of occupation. This agreement could perfectly take place outside the establishment of a political commonwealth and did not presuppose it.31 Essential for a good understanding of the right of necessity was that it implied the agreement, or pactum, a convergence of wills, either explicit or tacit. Here as well, Grotius built on scholastic thought,32 even though the concept of a tacit pactum had been developed in Roman law.33 Aquinas had spoken about the agreement (condictum) to introduce private property (S.Th. iia–iiae, q. 66, art. 2, ad 1). This agreement was of human law (ius positivum), which basically meant ‘that what had been agreed upon or con- sented to by men’ (S.Th. iia–iiae, q. 57, art. 2). Aquinas used the terms pactum, consensus and condictum. These terms were also used by the sixteenth-century theologians to explain how a primeval state of common property could licitly evolve into a regime of private property. In his early work De dominio, Soto had said that compact and agreement between men (‘ex pacto et condicto hominum’) was what had brought about the division of goods. Soto tried here to bring the Roman law doctrine of first occupation as a natural means of acquiring property (Inst. 2.1.12) in harmony with the argument of Conrad Summen- hart, who had discussed three possibilities in which the goods in the state of nature could have been divided: paternal power, political power, and consent. The first possibility was Adam making use of his paternal power to divide the

31 Fitzmaurice, Sovereignty, Property and Empire, pp. 85–101; Straumann, Roman Law in the State of Nature, pp. 175–88; Tuck, Natural Rights Theories, pp. 61–81; Buckle, Natural Law and the Theory of Property, p. 43. 32 Garnsey, Thinking About Property, p. 118, who notices the absence in ancient texts of consent underlying the private property regime. For the conventional origins of private property in sixteenth-century theological thought, see Renoux-Zagamé, Origines théologiques, pp. 292–95. 33 Straumann, Roman Law in the State of Nature, p. 186.

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140 Wauters goods of the earth among his descendants. The second possibility was that people would bestow on Adam a sort of political power to divide the good. Summenhart granted that both options lacked scriptural foundations, however without concluding that this invalidated the two options. He then brought up the third possibility, which was that men by common consent had agreed to divide the earth.34 The scriptural foundation was Genesis 13.8, where Abraham and Lot parted ways and agreed on the lands they were going to settle on. So when Soto said in De dominio that compact and agreement lay at the heart of the division of goods, it was primarily to make clear that the appropriation of a res nullius by natural law only generated a pre-civil use, because civil property rights were introduced by compact.35 Luis de Molina returned to Summenhart’s discussion about paternal power, political power and consent as methods of dividing the commons, but he high- lighted that in each of the three methods agreement and consent played an important role. First, if Adam had paternal power to divide the goods among his descendants, the sons of Noah must have had property rights as well after the Flood. By consent they decided to continue to occupy what had been theirs before the Flood and to divide the rest between them. Secondly, in case political power brought about the division of goods, consent was expressed in the election of the ruler by the people. And the third way to divide the goods was directly by consent and agreement between men, such as in the case of Abraham and Lot. Molina’s conclusion was that, regardless of the way goods had been divided, for those goods that had remained undivided it was established, by either tacit or explicit consent, that the first occupier would become their owner.36 For Molina, consent was thus the main ground for the division

34 Conradus Summenhart, De contractibus licitis atque illicitis tractatus (Venetiis, 1580), I.11, ad concl. 2: ‘Si nec per habentem paternam, nec per habentem politicam potestatem facta est distinctio, potuit tamen esse facta per communem consensum hominum’. 35 Soto, De dominio, n° 21, pp. 140–42: ‘Dicunt alli quod iure naturae omnia quae non habent proprium dominum sunt primo occupantis, ut habetur Inst., De rerum divisione [Inst. 2,1,12]; quod autem nullius est id naturali ratione occupanti conceditur, et sic divisio potuit fieri iure naturae. Sed tamen hoc debet sane intellegi, nam iure naturali illud quod ante nullius fuit non est occupantis quantum ad dominium, sed solum quantum ad usus, nam iure naturali omnia sunt communia quantum ad dominium; et ideo divisio non potuit fieri quantum ad dominium nisi ex pacto et condicto hominum’. 36 Luis de Molina, De iustitia et iure (Moguntiae, 1659), ii.20.10: ‘Quocumque modo rerum divisio facta fuerit, de reliquis, quae indivisa restabant, semper id tacito, vel expresso consensu, statutum, servatumque fuit, ut fierent primo occupantis’. On Molina’s theory of property, see D. Alonso-Lasheras, Luis de Molina’s De iustitia et iure: Justice as Virtue in an

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Necessity and the Sixteenth-century Scholastic Tradition 141 of goods. He also stressed the idea that this consent to occupation could be explicit or tacit. Lessius took up Molina’s suggestion, forgot about the discussion on paternal and political power and focused on the idea of agreement and consent as the basic means to divide the goods. Given the nature of man, who tends to look only after his own interest, the institution of private property allowed for more order and efficiency. Therefore, all peoples had reached the same conclusion that it was preferable to make an end to common property. Lessius labeled as consent (consensus) this convergence among peoples on the need to introduce private property.37 The idea that a compact lay at the origin of the regime of private property had become rather common by the sixteenth century, as the Spanish scholas- tics drew upon Aquinas, older civil and canonical thought, and the Franciscan poverty dispute. But the question remains up to what point the agreement to the principle of occupation was a strong fissure in Grotius’s account of the development of private property. After all, Grotius denied that the establishment of private property extinguished the property regime of the state of nature (ibp ii.2.6.1), and thought that the first regulation of property ‘was patterned after nature’s plan’ (ipc xii, fol. 101v). The essential feature in that pattern, as we have seen, was the seizure as the primary means of acquiring things. Seizure excluded others from its use, and this exclusivity is what property was all about (ipc xii, fol. 101); the difference between the pre-civil seizure and the civil occupatio conceivably did not amount to much, and in that sense the agreement to apportion unclaimed goods to the first occupier is rather ‘a recognition of a right […] than what constitutes it’.38 Even if for Grotius the agreement was not a strong or hard condition to as- sign property to the first occupier, it still was a necessary step for the introduction of a civil law on property. In the state of nature seizure was the natural way of acquiring things, but others could only be excluded from their use while the individual had physical control. As we have seen, the individual could defend the goods under his control based on a right to defend his personal integrity

Economic Context (Leiden: Brill, 2011), p. 110; J. Kleinhappl, ‘Die Eigentumslehre Ludwig Molinas’, Zeitschrift für katholische Theologie 56 (1932), 46–66. 37 Lessius, De iustitia et iure, ii.5.3.9: ‘Haec divisio facta est iure gentium […] Hoc tamen non est ita intelligendum quasi sit aliquod praeceptum apud omnes, sed quia commune omnium iudicium est divisionem rerum expedire, tum ad pacem, tum ad meliorem rerum administrationem; … Itaque hoc ius gentium nihil est aliud quam commune hominum iudicium, et gentium consensus: vel est concessio et ius ex communi iudicio et consensu proveniens’. 38 Tuck, Natural Rights Theories, p. 77.

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142 Wauters or suum. However, once the individual lost physical control, he also lost the right to use it, for it ‘was derived not from a mere internal act of the mind’ (ibp ii.2.2.5). What the civil property regime added was therefore the possibility to recover lost possessions, for which the ‘establishment of courts of justice was undertaken’ (ipc viii, fol. 39). The possibility to recover goods in spite of loss of physical control over them required others to subscribe to the idea of continuation of rights by the mere internal act of the mind, and hence some kind of expression of their will, under the form of a compact, was necessary (ibp i.1.4.10). Once established that private property was introduced following an agreement to the principle of occupation, it was only a logical step further to think that there were clauses, conditions and exceptions attached to the compact. One such exception was necessity, another one the right of free passage over land and rivers for migrants with a just cause (ibp 2.2.13.1). Grotius had not been the first to conceive of necessity as a clause to the agreement to the principle of first occupation. Lessius as well stated that the division was to be understood to have taken place under the tacit condition that in times of extreme or grave necessity goods would continue to remain common.39 Grotius must have conceived it in very similar terms: he had spoken of a re- vival (reviviscere) of the pristine use-right. But that didn’t mean that a situation of extreme need triggered the suspension of the private property regime itself and a return to the default original position. It is more likely that he understood the right of necessity to form part of the agreement itself. He explained that the primitive use right was received (receptio) when the common had been divided by agreement (ibp ii.2.6.4). We are forced to believe that the original dividers, if asked, would surely ‘have answered the same as we now assert’ (ibid.). Just like private property itself was supposed to be reasonable because it recognized the natural law principle of occupatio and because of the benefits in terms of increased efficiency and social order, the right of necessity was reasonable as well. Covarruvias had already insisted that it would be contrary to natural reason if a human being in extreme need was not relieved by the use of temporal goods,40 and Lessius

39 Lessius, De iustitia et iure, ii.12.12.71: ‘In divisione et attributione rerum, qua factum est, ut nemini ius sit in rem alterius, semper debuit haec conditio tacita intelligi, nisi extrema vel certe gravis necessitas postulet’. 40 Diego de Covarruvias, Regulae peccatum, De regulis iuris, lib. 6 relectio (Lugduni, 1560), ii.1: ‘Quamobrem divisio rerum, quae post institutionem iuris naturalis facta est, non derogat rationi naturali, quae dictat ex rebus temporalibus subveniendum esse hominum neces- sitati extremae’.

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Necessity and the Sixteenth-century Scholastic Tradition 143 as well had stated that it would not have been rational to divide the goods of the earth, had not everyone maintained a natural right to protect his life.41 The right of necessity was the expression of plain common sense: if the purpose of dividing the common had been to overcome a life of subsistence and improve the way of life, then no one could be presumed to have agreed to a settlement that would leave him worse off when it mattered most, and in that sense no deviation from ‘natural equity’ ought to be presumed (ibp ii.2.6.1). Once established that the right of necessity got its normative force from the agreement itself, its substance – the liberty to use – could be tailored and restricted, much in the same way as the private property regime itself had changed the original situation of common property. First, the necessitous had to make sure that before taking from others he had tried everything in his power to avoid the situation of absolute necessity. This included asking the government for help or trying to convince the affluent to give what was needed (ibp ii.2.7). Second, the necessitous could not take from the owner when the latter was himself in a situation of extreme need. This was consistent with the use-right in the state of nature, where the person who had physical control had ‘the advantage’ (ibp ii.2.8), because de facto he excluded others. Lessius had listed these two restrictions as well.42 One could add further restrictions that Grotius did not explicitly elaborate: the necessitous should not take more than what was needed in order to survive; or only persons in extreme necessity had this liberty, but not persons in grave necessity.43 The third limitation was that once the situation of absolute necessity had passed, the necessitous should reimburse the owner, to which we shall presently turn.

Restitution

Restitution was the test case. As Grotius himself anticipated, his statement that the necessitous had the obligation to restitute once the emergency had passed, was open to challenges (ibp ii.2.9). As a matter of fact, some theologians had said that restitution was not necessary. After all, if it was licit for a person in extreme need to take what was

41 Lessius, De iustitia et iure, ii.12.12.68, quoted above. 42 Lessius, De iustitia et iure, ii.12.12.60 and 70. 43 Grotius did not explicitly deny that people in a situation of only grave (as opposed to extreme) necessity had the liberty to take the goods from others, but Lessius (and others before him) had explicitly reflected on this issue (and were not followed herein by the Dutch master). Lessius, De iustitia et iure, ii.12.12.71.

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144 Wauters needed to survive she had a right to do so. So when the necessity had passed, the person was under no obligation to return the goods to the owner.44 Pufen- dorf as well asked if it was not contradictory to insist on restitution when the necessitous had a right to the surplus of the owner.45 However, other scholastic authors took a different position, and added new criteria such as the value of the subtracted goods. Martin de Azpilcueta, for instance, thought that goods of little value such as bread, grapes or ragged clothes were not necessary to return, because the owner could be presumed to be happy with the goods being used to remedy a situation of extreme necessity. On the other hand, the needy person could not make such a presumption for goods of great value such as a horse, or a marten fur coat. Even so, Azpilcueta found that the value of the goods was besides the deontological question. His point was rather that in case of necessity a person had a right to use the things, but that right was not necessarily ownership,46 an argument he took over from Soto.47 Covarruvias saw the relationship between the rightful owner and the person in extreme necessity in the framework of a contract. Covarruvias granted that an affluent person had an obligation to help another person in extreme necessity, but that help did not necessarily imply a donation. For the affluent person it was sufficient to have handed over the goods under the understanding of a contract of mutuum (loan for consumption), so that he could claim the goods once the fortune of the needy person was restored.48 Juan de Medina rejected the argument of loan for consumption, for the ob- vious reason that often a person in extreme need would just take what was needed, secretly, without subscribing to a contract of mutuum. However, he accepted the general conclusion that the obligation of restitution depended on the intention with which the true owner had given, or could be presumed to have given, the goods to the person in extreme need. That intention was clear enough when the owner had donated the goods or handed them over under a contract of mutuum or commodatum. But in those cases where the intention of the owner was not clear, a reasonable presumption had to be made, taking into account several elements such as the value of the goods in question, the

44 Petrus Navarrus cited by Lessius, De iustitia et iure, ii.16.1.7. See also Juan de Medina, De restitutione et contractibus tractatus (Salmanticae, 1550), q. 3. 45 S. Pufendorf, De iure naturae et gentium libri octo (London, Adam Junghans, 1672) ii.6.6; see also Salter, ‘Grotius and Pufendorf’, pp. 285–86. 46 Martin de Azpilueta, Manual de confessores y penitentes (Anvers, 1568), 17.61. 47 Soto, De iustitia et iure, iv.7.1. 48 Covarruvias, Regulae peccatum relectio, ii.1.

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Necessity and the Sixteenth-century Scholastic Tradition 145 personal traits of the owner – his wealth, his generosity, his habits of almsgiv- ing – and the relationship between the owner and the person in need.49 Lessius summarized the communis opinio that had come to be formed by the beginning of the seventeenth century: a person in extreme need had a right to use things in situations of extreme necessity, but for Lessius, as for Soto and Azpilcueta before him, this use right was not dominium. Consequently, it did not take away the obligation to restitute once the situation of extreme necessity had passed. The reason was that the same tacit clause to the compact of the division of goods that had allowed to take another’s goods in emergency situations also included the provision that restitution be made once the emergency was over: ‘Etsi enim divisio rerum non potuit impedire usum rei alienae, tibi necessariae; fecit tamen, ut tenearis ad restitutionem, quando commode pot- eris’.50 For Lessius, the owner had a right to restitution, although he warned that the rich man who actually claimed back goods of little value, such as a pair of shoes, ragged clothes or a piece of bread, was ‘ridiculous’.51 Lessius’s idea of a clause to the agreement that served as a basis for restitution was not explicitly taken over by Grotius, but just like the right of necessity itself was an interpretive construction deviating as little as possible from natural equity, so too was the obligation of restitution. Precisely because the agreement to the principle of occupatio was an interpretive construction, there was no problem to tailor it ‘so far, and not further, to maintain the laws of natural equity against the rigour of the rights of a proprietor’ (ibp ii.2.9). The conclusion about restitution and the tailoring of the right of necessity helped Grotius to reach the point that he needed it for. Unlike the theologians, he did not elaborate the doctrine to define the relationship between property and subsistence, let alone as a principle of distributive justice. For Grotius it of- fered a guideline for permissible behavior in times of war. It is no coincidence that his discussion of the principle of necessity in the De iure belli ac pacis was immediately followed by the conclusion that ‘he that is engaged in a just war may possess himself of any place in a neutral country’ (ibp ii.2.10). This liberty to take places in neutral countries was of course subject to conditions: the belligerent could only invoke it when the threat was certain and the injury

49 Medina, De restitutione et contractibus, q. 3: ‘In dubio autem, quod tutius est, venit eligen- dum, scilicet, vel restituatur, vel remissio impetretur. Si quaeras quando hoc vel illud est rationabiliter praesumendum. Dicendum, quod ex quantitate rei occupatae, et domini conditione et qualitate pendet: si sit dives, si liberalis, si amicus ipsius occupantis, si as- suetus eleemosynas facere, vel non’. 50 Lessius, De iustitia et iure, ii.16.1.9. 51 Ibid.

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146 Wauters irreparable were the enemy to take the place first; he could only take what was needed for his security; he could not take over political power nor tax revenue; and, crucially, he had to return the place as soon as the danger was over.

Conclusion

Restitution was at the heart of Grotius’s doctrine of necessity. It was crucial, because a belligerent who did not return a place that he had taken in extreme need, impaired permanently the interests of the neutral country in question. On the other hand Grotius knew that the obligation of restitution sat uncom- fortably with the idea that in a situation of extreme necessity people could without permission of the owner take what was needed to survive, or, put dif- ferently, that they had the right to do so. Given the scholastic tradition that Grotius explicitly referred to – with its extensive discussions about the usus facti, the ius naturale utendi, the right of self-preservation – it is logical to conclude that for Grotius necessity is a subjective right. This right is not a claim- right, but a liberty, implying that it would be wrong of the owner to prevent people from taking life-saving goods. But for Grotius the owner did have the right to ask for restitution once the danger was over. That was because the normative force of the right of necessity was itself based on the compact to the principle of occupation; it was the compact that therefore could also establish the boundaries of the right of necessity. The fate of the poor who were in a situation of extreme need had been a concern for canonists and theologians alike since the twelfth century onwards, and there cannot be a doubt that Grotius was familiar with that tradition. The Grotian doctrine formed part of a wider theory of property, and within that theory the Roman law occupatio played a primordial role. For Grotius, occupation was what generated rights in the state of nature, and it was the agreement to the principle of occupation that provided the mechanism for dividing the common licitly. It is to the key concept of occupatio that all other features of his theory are linked, including the idea of usus facti, the idea of self-preservation, and the idea of a pactum. Some of these features, including the right of necessity itself, could not be understood without the scholastic tradition. The idea of mere factual use was for instance indebted to the Franciscan poverty dispute; Aquinas had already used the terminology of ‘pactum’ and ‘condictum’ and his sixteenth-century commentators used these concepts to prove the consensual basis underlying the principle of occupation. But combining the classical and the scholastic traditions was of course made easier because the scholastic theologians themselves had relied on

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Necessity and the Sixteenth-century Scholastic Tradition 147

Roman law to prove their arguments. Since the twelfth century the concept of occupatio was discussed by canonists and theologians as a serious argument in the account of the origin of private property; self-preservation was an important element in Roman law; the idea that in times of necessity things were to be considered as common was exemplified in a few cases collected in the Digest; and a tacit pactum had a Roman law pedigree. The sixteenth- and early-seventeenth-century theologians knew these ideas and incorporated them into their property theories. Where, then, did Grotius make the difference? Some authors have pointed to the idea of consent to the principle of occupation. The idea of the consensual basis of this principle as a means to divide the common was lacking in Roman texts, and after Grotius it faced a bright future as an object of debate between competing natural law theories. But sixteenth-century theologians like Soto, Molina and Lessius were already very familiar with it, and Lessius would even elaborate on it in truly contractualist fashion to give a place to both the right of necessity and the obligation of restitution, pretty much like Grotius himself would do. To measure Grotius’s achievement, it is important to keep in mind the practical purpose of his theory, very tangible in the case of De iure praedae, and certainly not forgotten in De iure belli ac pacis. The scholastic theologians had developed their property theories as guidelines for confessors who had to provide counsel on a life of virtue and salvation. Grotius did not mean to provide rules that lead to some eudemonic final good, but sought to establish the boundaries of acceptable behavior in times of war. Therefore he geared the arguments of the scholastic property theories towards the defense of the principle of the freedom of the seas and applied it on the case of the Santa Catarina. For similar purposes he elaborated on the doctrine of necessity: to establish to what extent belligerents could take possession of places in neutral countries. Grotius made the theory practicable within a system of law conceived strictly as a set of overarching principles to apply on mankind as a whole for the ben- efit of peace. It was a paradigm shift.

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