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THE CATHOLIC UNIVERSITY of AMERICA Hugo Grotius' Classical THE CATHOLIC UNIVERSITY OF AMERICA Hugo Grotius' Classical Conception of Justice A DISSERTATION Submitted to the Faculty of the Department of Politics School of Arts and Sciences Of The Catholic University of America In Partial Fulfillment of the Requirements For the Degree Doctor of Philosophy By Jeremy Seth Geddert Washington, D.C. 2012 Hugo Grotius' Classical Conception of Justice Jeremy Seth Geddert, Ph.D. Director: David Walsh, Ph.D. Hugo Grotius is increasingly portrayed as an early modern natural rights theorist. Such readings often reduce his concept of justice to the negation of offences against private property rights, and frame his politics in legal terms. Grotius indeed has a category of “expletive” (or “strict”) justice, understood in terms of universal laws, which provides an individual with the necessary possession or liberty. However, the exercise of this status must then be governed by his under-explored category of “attributive” (or “wider”) justice, which alone, through the exercise of political virtue, can promote positive (and public) goods. This dual framework is evident in three important aspects of Grotius' thought: political authority, criminal punishment, and Atonement theology. In the first, there is no strict obligation to enter civil society, as the natural laws and rights of expletive justice can already be enforced in extra-political society. However, attributive justice encourages entry into political society, because it allows for public governance in the particular situations where expletive justice, owing to its impersonal universality, must be silent. Likewise, the right to punish crime is not a claim on a tangible good, but a difficult responsibility. Its exercise thus requires attributive justice, whose personal, forward-looking, action-oriented character will reveal the particular punishment that best promotes the public purposes of punishment: the common good. Grotius' use of a criminal law paradigm (rather than a private law framework) is also evident in his creative understanding of how Christ's death atones for human wrongdoing. Grotius portrays God as moral governor of the universe, rather than judge or economic creditor. God then exercises (political) prudence and love in relaxing his 'expletive' right to condemn humanity, out of considerations of a higher good. This dual framework of expletive and attributive justice allows Grotius to build on the traditional understanding of commutative and distributive justice, by allowing a place for a law-based (expletive) ethics within a wider (attributive) virtue-based ethics. Thus, he shows how a robust conception of individual rights need not sever the link relating those rights to higher goods both in the political realm and beyond it. This dissertation by Jeremy Seth Geddert fulfills the dissertation requirement for the doctoral degree in Politics approved by David Walsh, Ph.D., as director, and by Claes Ryn, Ph.D., and Stephen Schneck, Ph.D. as Readers. ____________________________________ David Walsh, Ph.D., Director ____________________________________ Claes Ryn, Ph.D., Reader ____________________________________ Stephen Schneck, Ph.D., Reader ii Table of Contents Introduction..........................................................................................................................1 Chapter 1 – A History of Justice........................................................................................11 Chapter 2 – Grotius on Justice...........................................................................................87 Chapter 3 – Grotius on Authority.....................................................................................150 Chapter 4 – Grotius on Punishment.................................................................................213 Chapter 5 – Grotius on The Atonement of Christ............................................................270 Conclusion – Beyond Justice...........................................................................................330 Bibliography.....................................................................................................................361 iii Acknowledgements First, I would like to thank my supervisor, David Walsh, for his direction, trust, and encouragement, including providing the support needed to finish the dissertation in a timely manner. More broadly, his insights into what it means to study political philosophy have been invaluable throughout my time at CUA. I would also like to thank Claes Ryn for his optimism and guidance over the years, as well as his helpful comments as a reader of the dissertation. Likewise, I would like to thank Stephen Schneck for his observations as a reader, as well as for providing a truly fine model of teaching over the years. I would also like to acknowledge Kevin White and Stefania Lucamante, for their thoughtful comments and helpful presence at the dissertation defense. I also owe thanks to Oliver O'Donovan, for pointing me in some fruitful directions, and to Jim Kruggel and Clay Morrison, for their helpful comments on Chapter 5. I would like to thank Phillip Henderson for his many efforts as department chair, which helped to make life easier for me and other graduate students. On both an academic and personal level, I am truly grateful to Steve McGuire for his friendship, support, and advice since our days in Saskatoon; his assistance has been essential. I would also like to thank the other members of the Alberti symposium: Jordan Watts, Teep Schlachter, Paul Higgins, and David Cory, from whom I learned much and with whom I laughed even more. The burden of graduate life was also eased by the support of fellow-travellers in the program, iv including Jan Herchold and Carol Cooper, as well as the perspective offered by many good friends at Church of the Advent, particularly Wendell Kimbrough. Finally, I would like to thank my parents, Ron and Joy Geddert, for their total support and listening ears, in good times and in bad. v INTRODUCTION Hugo Grotius has long been portrayed by North American scholarship as a modern natural rights thinker. Indeed, his position on subjective rights has been taken as the basic orienting principle of his politics. In the legal field, he has variously been portrayed as the father of modern international law, modern natural law, or the modern science of law. Many political theorists of the past generation have described him as a precursor to figures such as Hobbes and Locke, and thus as representing a break with the classical understanding of politics. This understanding of Grotius' place in the history of political thought reflects a variety of interpretive moves. Foremost among them is an emphasis on rights rather than goods. This tends to produce a largely formal conception of politics that focuses on justice in procedures rather than outcomes. These possessive rights confer on individuals a status that guarantees their immunity from injustice, thus obviating the need for guidance in the action they subsequently perform. This leads to an emphasis on civil society as existing to protect and enlarge private goods, rather than to foster a common public good. Another common theme in these accounts is the conception of politics as an impersonal system in which abstract theory and calculative reason can solve the problems of politics (for example, by channelling enlightened self-interest). This universal science of politics can theoretically be applied to any political community, regardless of its 1 2 particular historical situation. Thus, justice fundamentally resides in the safeguards of the system, rather than in the character of a people. Grotius is thus interpreted as rejecting an action-based understanding of politics as a practice requiring (and inspiring) political virtues, such as the classical virtue of prudential judgment.1 Indeed, this approach is typically perceived as a necessary break with the traditional political thought of classical Greece, as typified by Aristotle, and, later, his medieval Christian heirs. For them, political justice was not simply reducible to commutative justice, in which the concern is the private realm; the subject matter, external goods; the reasoning, calculative; the approach, procedural; the outcome, universal; and the prescriptions, amenable to systematization. Nor was it an exercise employing techne to design constitutions which, as Aristotle says in his Politics, would simply “guarantee men’s rights against each other.”2 Rather, politics also included distributive justice, in which the concern is with the public realm; the subject matter, personal; the reasoning, prudential; the approach, substantive; the outcome, historical- situational; and the prescriptions, reliant on the political virtue of phronesis to judge the spirit of the law. Finally, beyond this duality of political (or “partial”) justice existed a greater overarching sense of justice. The natural realm of politics was conceived as an intermediate end, ultimately ordered to a higher philosophical or theological realm. 1 See, for instance, Michel Villey, La Formation de la Pensee Juridique Moderne (Paris: Montchretien, 1975); Richard Tuck, Natural Rights Theories: Their origin and development (Cambridge: Cambridge University Press, 1979); Tuck, Philosophy and Government 1572-1651 (Cambridge: Cambridge University Press, 1993); Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume (New York: Oxford University Press, 1993); Peter Haggenmacher, “Droits
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