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Tfík*: R a Zu-Ip P -* F Fe I L I I L F »£■■i - s l'i p « tfík*: r a zu-ip p -* F fe i l i i l F : f .-.: « & « £ í *4 «Î • ’“' * ,•* < • !-4 ■ *• , «v •• -*F*v!<i -*-> “'.i, , f.4 \y» ' >V > s,,î *' ' ’* " ^ i ' 'j * ’’ i'i •?’ 1 " i ^ - >lJ ’ \v" r, >. 1 *-*" ’,n) *i C " , . * , î -, ‘ ' . ! • ‘ "■ V - !i! s ,.u , /. *^ V - - , 1, *. V ' r'\r ’ ^ i. ^, ,'t 4 ! ,, ■ " ' * ^j * ^ r ' * ^ ' * je ' > j>7 * **' t *' '*-r ? '■ EUROPEAN UmVEHITY INSTITUTS . ’*' *. r/f i* -r.* '■ Department of Social atsd Political Sciences ).<vV }<> ’’>'*'•■ i,% - ' J(; >" . **' 1^' .l~ ^ Ip*"' - ! \ 1 , ’W' :. • , " •'■ ,. ï > f c f c r u w » r n m m r ■ * v % ;. * i? ^fcn ?1-r:!^ v)i^ t A .Study, of G rot ius' Doctrine of Natura! Law • **:,V /i'j , l,i " < U\V ‘y*#!*'Ti,.' J * ‘ S i. ’ < V **'},• ' - , ^ L# ' > , • , ,* , ’'\U',h ¡r'¿T« • ‘ 'r^{< \ C’.''' •4> 4 ; . '■ ,< \V. \rt •' tv.-*. ~*y ' * - A*1 ' . ' r .VH-* •'• >s- . r- '. / _ -vh ‘v i’ i ,'v-i ..r : . ' __________________, i j %; J ' '_ _ " ' V V . !. i'(M ' ^J '• .V 30001 * 000949984 EUROPEAN UNIVERITY INSTITUTE Department of Social and Political Sciences KEEPING FAITH A Study of Grotius’ Doctrine of Natural Law LAW BIC9 - Leonard F.M. Besselink Thesis submitted with a view to obtaining the doctorate of the European University Institute Aan mijn ouders iff & To1 Alison PREFACE I submit the present study with a view to obtaining the doctorate o f the European University Institute. The relevant rules for submitting a doc­ toral dissertation offer the possibility to adhere to 'national', in my case Dutch, traditions. Depending on the manner in which they are adhered to, some traditions are less obviously meaningful than others. To the former class belongs, no doubt, the first tradition I wish to uphold, which is the now near oddity o f appending at least six theses which have no bearing on the subject of the dissertation. The second tradition I adhere to is more obviously good custom. As it is the last degree of formal academic education in my country o f provenance. I preface my doctoral dissertation with acknowledgements which are extended to all who have contributed to my reaching this point. From the first phase of legal studies which I spent at the Free Univer­ sity, Amsterdam, I wish to mention the courses in Jurisprudence by the late Professor Van Eikema Hommes, with many o f whose interpretations (especially o f Crotius) I have come to disagree, but to whom I owe my first introduction to the history of legal and political theory. Through these courses also, I became acquainted with H. Dooyeweerd's philoso­ phy of "the cosmonomic idea" or "idea legis“. Dooyeweerd's terminologi­ cal derivation of this philosophical ’idea legis’ from equivalent concepts such as 'lex naturalis, lex aterna, harmonio prastabilita, etc." [cf. A New Critique of Theoretical T hought, vol. I, pp. 93 ff. ] is at the the­ matic horizon of the present study. The studies for my degree at the Law Faculty of the University of Lei­ den confronted me with one aspect of Grotius’ work, i.e. his contribu­ tion to what we now conceive o f as the body o f public international law. I gratefully appreciate the liberty and support I there received to stu­ dy also theoretical aspects of that branch of law, especially from Pro­ fessor P.H. Kooymans, and also from Chris de Cooker and Pieter Jan Kuyper, who have both left academia but made me aware o f the kind­ redness of friendship and the love of scholarly pursuits. The intellectual stimulus issuing from the postgraduate years at the Bo­ logna Center of the School of Advanced International Studies, Johns Hopkins University, and at the European University Institute, Florence, will remain of great importance to me. In the latter the political philoso­ phy seminars, organized by Maurice Cranston (till his departure from Florence) and Athanasios Moulakis, opening with the impressive cycle of lectures by Eric Voegelin, and the student-initiated Jurisprudence semi­ nars have been decisive for the character o f my thesis. I received stim­ ulating and encouraging criticisms on what in retrospect was a pilot study of the present work and on drafts of parts of the latter from my supervisor A. Moulakis and from M. Cranston (EUI/London School of Economics), Lea Campos-Boralevi (Florence University), Joseph Weiler (Ann Arbor, Michigan), Patrick Masterson (University College, Dublin), Anthony Pagden (Cambridge), Quentin Skinner (Cambridge), Richard Tuck (Cambridge), Shirley Letwin (Cambridge), Theodore Molnar (State University, N.Y.), J.P.A. Coopmans (Tilburg) and R. Feenstra (Lei­ den). My academic education could not have been completed without the preparation by and support of the education my parents gave me. and without the help my wife gave me, which extended far beyond the lan­ guage correction she did of this study. To them I dedicate this work. CONTENTS INTRODUCTION 1 CHAPTER I "Faith, the foundation of justice" Fides 6 De fide et perfidia 8 Fides and obligation 14 The social contract 18 The fides of man and the fides of God 25 Conclusion 30 CHAPTER II "The best division of law 34 Ius voluntarium humanum: civile & gentium De iure praedae 37 Inleidinge 42 De iure belli 43 Ius divinum voluntarium De iure praedae 45 Inleidinge 46 De iure belli 47 An intermediate conclusion 50 Ius naturale strictum 52 The relation between natural and volitional 58 natural law properly and improperly 58 the three senses of ius 63 things commendable and objectionable; full and less plenary permission 66 middle things, cynicism, scepticism 70 the nature of middle justice 74 conclusion 82 The eternal law eclipsed? 86 » CHAPTER III M.... even if there were to be no God, or human affairs be of no concern to him Status quaestionis 93 Points of discussion 94 Intellectualist & voluntarist, indicative & preceptive, realist & nominalist 102 The context of paragraph 11 of the Prolegomena 109 analogia entis 113 God, man & reality: the juxtaposition of will & intellect 116 De iure belli ac pacis 1,1 123 some conclusions 125 God’s will and the existance in man of natural principles 126 From voluntarism to intellectualism? 136 The sources 144 Conclusion 151 CHAPTER IV ".... an appearance of change deceives the unwary ..." Introduction 153 De aequitate indulgentia et facilitate 155 content 157 the relation of De aequitate to Grotius’ other works 164 - terminology 164 - punishment in the Defensio fidei 167 - punishment in the Inleidinge 171 - punishment in De iure belli 172 conclusion 174 Interpretation limits and grounds of facilitas and dispensation: the volitional and the natural 177 aequitas - its sphere of application 180 - the application of equity to divine and natural law 184 - the finite and the infinite 189 Conclusion 192 V. THE CONCLUSIONS CONSIDERED 199 LIST OF QUOTED LITERATURE - 1- Introduction In the philosophical tradition, natural law has served as one designation of the borderline between human and divine. This tradition is associated with a complex of ideas which has been traced back as far as Heraclitus’ fragment according^ to which "all hu­ man laws are nourished by one which is divine" . In li^e with this, Aristotle’s definition of the right by nature as a kineton suggested that the right by nature is something ultimately moved by the prime unmoved Mover, the akineton Something of the Heraclitan fragment is echoed in Augustine’s affirmation that "men derive all that is just and lawful in temporal law from eternal law" . Against the background of parts of various Greek, Stoic, Roman and Christian traditions the lan­ guage of eternal, divine and human laws along with that of natural law and justice developed. It found a powerful synthesis in Thomas Aqui­ nas’ Summa Theologiae in which natural law is conceived of as *Diels, frag«. B 114. ^Haqna moralia I, 33; 1194 b 30ff; Nicomachean Ethics V, vii, 3; 1134 b 27ff.. ^Metaphysics. book XII; also 1011 a 1-2, 1012 b 31*32. An argument for this interpre­ tation is that in the famous passus on the right by nature Aristotle himself associates the akineton with the divine when he remarks that perhaps it is not true at all that with the gods there is change to be seen in the things which are just. The interpretation in­ tended in our text is developed by E. Voegelin, 'Das Rechte von Matur», Anamnesis. 1968, who extends this line of interpretation to ph rones is and for which he finds support in Aristotle's treatment of the eutyche (Cud. Eth. 1248 a ff.). Obviously this interpretation of the Aristotelian physei dikaion raises a number of important questions concerning Aris­ totle's distinction of and the relation between metaphysics and ethics, bios theoretikos and bios praktikos or politikos, between the God in the kosmos and the God in us - ques­ tions which ultimately concern the relation between Plato and Aristotle; and here opini­ on*, as will be obvious, greatly differ. Voegelin's position in the present context is that "manches an Platonischen Voraussetzungen jedoch impliziert tist], das wegen der Domi­ nanz kosmologischen Denkens nicht explizit werden kann. [...] Auch die Aristotelische [wie die Platonische, L.B.] Phronesis ist eine Existentialtugend, aber ihr Charakter als solche wird im kosmologischen Denkklima nich hinreichend deutlich, weil ihre Aktivierung durch eine Transzendenzerfahrung nicht zur Sprache kommt. [...] Das Platonische Erbe der Trans- zendenzerfahrung macht sich geltend und zwingt zur Anerkennung der Philia genannten Tu­ gend, die als poetische Liebe sowohl die Gottesliebe umspannt wie auch die Liebe zum Gött­ lichen im Selbst und im Mebenmenschen", (Anamnesis pp. 128-129). Much more fully (and therefore more critically) the questions are dealt with in E. Voegelin, Order and History, vol. Ill 'Plato and Aristotle', chapters 7 and 8, pp.
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