Hugo Grotius and the Modern Theology of Freedom

Transcending Natural Rights

Jeremy Seth Geddert

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781315525792
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Human rights are thought to guarantee pluralism by protecting individual liberty from imposed religious conceptions of virtue. Yet critics often argue that this secular focus on merely avoiding violations can also enable unfettered individualism and undermine appeals to the common good.

This book uncovers in secular rights pioneer Hugo Grotius a rights theory that points toward the enlargement of individual responsibility. It grounds this connection in Grotius' unexplored theological corpus, which reveals a dual metaethics and jurisprudence. Here a deontological natural law undergirds a secular theory of rights that is self-aware of its own limitations. A teleological practical reason then guides the exercise of these rights, so as not to compromise the political order that defends them. The book then illustrates this symbiosis of rights and responsibilities in five areas: consent theories of government, rights of rebellion, criminal punishment, war and international responsibility, and Atonement theology. This reassesses Grotius' legacy as a secularist opponent of classical political thought, and suggests that modern liberalism and universal human rights are compatible with a world of resurgent religion.

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Grotius and Modern Natural Rights

Beyond a Secular History

“Respect for human life, liberty and well-being must be enshrined as rights beyond the power of any force to diminish.” Nelson Mandela spoke this phrase as he signed into effect the 1996 Constitution of South Africa. His words carried an obvious poignancy; during twenty-seven years of imprisonment, his own liberty had been greatly diminished by government force. Many observers saw this inauguration as the final victory of an anti-Apartheid campaign championed by Mandela from within and assisted by international pressure from without. But observers around the globe praised not only the event of the constitution but the content. The South African constitution enshrines not only the rights of traditional liberal-democratic societies, but also a host of socio-economic rights, and even “third-generation rights” to information and to a healthy environment (to sample but two).

Rights have become the language of politics today. When ordinary Americans invoke the gravity and authority of the Constitution, it is often done in order to defend a claim-right. Rights are no less revered in France, home of the “Rights of Man and Citizen.” Even Brits compromised Parliamentary sovereignty to conform to the EU charter of rights. Why the currency of rights? First, they are impersonal. The constitutional courts tasked with their interpretation carry an air of political rectitude that contrasts with the horse-trading of legislatures. Judges, after all, are supposed to be restrained by the text of the rights charter, whereas politicians are apt to be swayed by personal considerations of re-election and patronage. Second, rights are secular. They do not depend on what John Rawls calls “comprehensive doctrines,” which means they can be justly imposed on all in a way that political interests cannot. Third, rights are universal. Rights apply equally to everyone, meaning that nobody can be denied and that favouritism is out of bounds. Indeed, rights language is both employed globally and aimed globally, from imprisoned journalists in Egypt to sacrilegious rock bands in Russia to democratic activists in China.

South Africa needed not labour to attract global attention when Nelson Mandela passed away. Yet as statesmen from East to West rushed to honour his legacy, the phrase “human rights” was conspicuously scarce in their tributes.¹ What, then, motivated their homages? One clue might lie in a word used repeatedly: reconciliation. Mandela’s most enduring legacy was his ability to unify a highly divided country, one on the brink of civil war mere days before he was elected as its President.² And no single policy was more integral to this unity than the Truth and Reconciliation Committee (TRC). Mandela’s African National Congress proposed this approach during the anti-Apartheid campaign, he himself endorsed it before the election, and he then implemented it as President.³ Yet Mandela would have been well within his rights to reject this approach and instead indict Apartheid criminals. As an individual, he would have gained satisfaction for his long years of imprisonment. As a chief executive, he would have carried out the standard governmental task of punishing criminals. And as a party leader, he would have satisfied a sizable constituency demanding retribution. Yet by exercising such a right in the strict sense, Mandela would have stoked the flames of civil war, a condition that would jeopardize the practical realization of even the most basic right of life.⁴

In other words, Mandela is uniquely revered not for advocating and fighting for rights, but instead for how he exercised his own right to punish. While genuine political order and unity in South Africa certainly required a respect for rights, it also required the active willingness to give up the right to punish by reference to a higher good. How could Mandela fight for rights, then preach giving them up? Were the impersonal and universal character of rights – generally thought to be a benefit – actually an impediment to a policy of amnesty? Does this explain why so many revolutions in the name of rights – however potentially justifiable – end in a reign of terror? Is there a flaw, or at least an internal tension, in the concept of rights? Must rights refer to something beyond themselves?

These questions lead us to consider the origin of secular rights theories. The conventional narrative begins in the mid-seventeenth century with Thomas Hobbes, who argues that authority arises only from the consent of those who will be subject to that rule. Locke subsequently recognizes that Hobbes’ theory gives carte blanche to the exercise of sovereign authority, and thus remedies this defect by stipulating that even legitimately constituted sovereigns must adhere to limits. That is, citizens retain natural rights that cannot be given to government. These rights theories are seen as a repudiation of the classical teleological conception of justice that relies on a rich philosophical anthropology. Indeed, Hobbes and Locke are clear about their distaste for the Aristotelian provenance of such ontologies.

Yet Hobbes’ conception can hardly be called a foundation for natural rights, because the right of one person to self-preservation does not imply the corresponding duty of another not to harm that one. Few would be reassured by a state of nature in which “every man has a right to every thing, even to one another’s body.”⁵ Locke’s theory of rights may be more sound, but the secularity of its foundation is debatable. If rights come from property, and property comes from labour, then the very reason that “no one ought to harm another in his life, health, [and] liberty ...” is precisely that men are all “... the workmanship of one omnipotent, and infinitely wise maker.”⁶

A slightly more sophisticated history of rights begins earlier in the seventeenth century, with the writings of Dutch polymath Hugo Grotius. After enumerating a list of basic rights, he (in)famously argues that “what we have been saying would have a degree of validity even if we were to assert ... that there were no God.” Most political theorists can at least identify the name of Grotius with this “impious hypothesis,” and the literature has increasingly cited him as the true beginning of secular rights-based political thought. The claim has a modicum of merit, even if the originality of his hypothesis is overstated by a good two centuries. But if this history were the chief reason we should be interested in Grotius, it would only lead us back to the philosophical problem of the limits of rights. Rather, we should be interested in Grotius because he establishes a foundation for secular natural rights in full awareness of this problem – and because he shows how we can transcend it.

In what follows, I argue that Grotius indeed has a deontological theory of individual rights, but it is oriented toward a teleological and ultimately Christian conception of person and politics. Rights point to responsibilities. These two elements are anchored in Grotius’ division of justice into two categories much noticed but little understood: “expletive” (or “strict” justice), and “attributive” (or “wider” justice). Expletive justice is grounded in secular and ‘objective’ theoretical reason. It outlines universal laws and rights, the implementation (explere) of which confers on the holder of such a right a formal legal status of immunity from accusations of injustice. By contrast, attributive justice is grounded in a practical reason that ascertains the character of individuals and the ends of human existence, dealing with persons whose ontologically higher essence transcends the final solutions of pure reason. While it is technically non-justiciable, it guides the action of assigning (attribuere) benefits and burdens and carrying out the actions associated with each. Hence, it governs the exercise of the rights previously guaranteed in law by expletive justice, and is oriented toward a trans-political reality that can never be fully instantiated in politics. Expletive justice is demanded in natural reason as a starting point, and sets out the formal preconditions for just political action. However, attributive justice adds a “harmony with nature” that transcends the flat two-dimensionality of depersonalized reason and promotes the fulfilment of a fully human existence.

In other words, Grotius establishes an independent and nonsectarian theoretical foundation for rights, while remaining fully conscious of the limits of this formal status on its own. If the exercise of this status is not guided by a virtue located in the person and ultimately grounded in God, a nation may undermine the very order that makes rights possible. This means that the holder of a right has an inherent responsibility, a duty that may in fact call forth a sacrifice on behalf of the polity. Hence, if individual rights are the beginning of Grotius’ political thought, they are not the end. Grotius provides the concept of individual rights with a secure but limited place that keeps alive the wider horizon of higher goods. Rights are best protected by a regime that transcends natural rights.

This thesis about Grotius’ concept of natural rights begins by outlining the history of justice (Chapter 2). This traces the development of Aristotle’s two categories of justice throughout the middle ages. It also shows the interplay of his categories of theoretical and practical reason and highlights the Christian development of the concept of history. This historical sketch leads to a conceptual distinction between natural Right, natural law, and individual natural rights.

Chapter 3 begins by examining the philosophical anthropology that grounds Grotius’ defence of natural Right. It then traces Grotius’ dual metaethics: a naturalism grounded in God as creator and a voluntarism based on God as governor. This leads to a tripartite epistemology that includes reason, history, and revelation. When combined, these philosophical foundations lead to a five-fold taxonomy of justice from which expletive and attributive justice emerge. The chapter will then compare these two categories of justice on seven axes, and show how the “negative liberty” of expletive justice leads to the “positive liberty” of attributive justice.

Because Grotius’ explicit references to expletive and attributive (or “strict” and “wider” justice) are somewhat sparing, the project then shows how they are implicit in five areas of his political thought (Chapters 4–8). These chapters are respectively organized around a particular right: the right to consent, the right of rebellion and civil disobedience, the right to punish, the right to wage war, and the right to pardon. Each chapter will show how the right in question points toward a wider responsibility to exercise it wisely. Chapter 4 begins by examining the creation of governing institutions, which requires a people to exercise its right to consent. Grotius here addresses the question of why a people would exercise this formal right, making reference to a substantive and trans-political natural Right. He outlines five purposes of government that enjoin its creation, including a justification for positive law. Positive law does not simply protect property but also makes the practical realization of natural Right more likely. Government also provides a forum in which to further discover and promulgate truths of natural Right through their instantiation in particularities of time and place. However, if the people irresponsibly exercise their right to make a constitution, or the ruler his to enact positive laws, civil society will fail to reach the substantive aims that motivated its very creation. Grotius’ treatment of civil society as salutary – but not strictly necessary – helps to draw out both the validity of individual choice under expletive justice, and the responsibility to the common good under attributive justice.

Chapter 5 explores Grotius’ oft-misread right of rebellion and civil disobedience. Here he argues that the expletive status of authority is nearly unassailable once constituted through expletive consent. However, he permits a wide latitude for civil disobedience, as attributive justice holds the ruler’s actions to a lofty standard. He unites these two seemingly paradoxical elements through a four-fold taxonomy of types of rule, which reveals informal sources of authority. This framework also shows how indicative moral judgment carries a weight of its own, apart from imperative coercive force. This implicitly Christian balance between naturalism and voluntarism envisions a sovereign responsible to a standard outside himself. When the conceptual right to govern is used irresponsibly, the effect of governing is rendered nearly inert.

Chapter 6 outlines Grotius’ philosophy of punishment. It begins by showing how Grotius separates civil and criminal law in order to distinguish restoration of property from punishment of persons. Expletive justice can govern the former but is incomplete for the latter. While it deductively grants the political authorities a strict natural right to punish lawbreakers, unlike in civil law it cannot suggest a course of action that fulfils the (now forward-looking) purposes of punishment. This calls for attributive prudence to understand social particulars, foresee consequences, and ascertain (and shape) the intention of the perpetrator. The ruler must also exercise the classical virtue of equity, which transcends the letter of the positive law, and ought to consider the Christian concept of pardon, which refers to a reality that transcends even the spirit of the law. Hence, the capacity to punish is not a claim-right but in fact a difficult responsibility. Only by punishing responsibly can the ruler protect the very political order that secures his original right to punish.

Chapter 7 explores the right to apprehend international criminals by waging punitive war. Grotius’ expletive natural right to punish in the pre-political ‘state of nature’ permits nations to punish others in the continuing international ‘state of nature.’ This right is attentive to religious pluralism, as it limits the grounds for punitive war to those crimes against humanity whose proscriptions are knowable in pure reason to all. Yet this right alone is unlikely to motivate the imperfect responsibility of apprehending international criminals. Nor can its pure reason mandate a limited war that demands a proporti...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• 1 Grotius and Modern Natural Rights: Beyond a Secular History
• 2 Natural Right and Natural Rights
• 3 Two Concepts of Justice
• 4 The Origins of the State: How and Why?
• 5 The Bounds of Coercive Authority: Sovereignty and Rebellion
• 6 Rights and the Responsibility (Not) to Punish
• 7 Punitive War and International Responsibility
• 8 Divine Government: Why You Can’t Ever Really Pay for Your Crimes
• 9 Transcending Natural Rights, or Rethinking the Foundations of Modern Political Secularism: Grotius and the History of Political Thought
• Bibliography
• Index