Benjamin Straumann, Hugo Grotius und die Antike. Römisches Recht und römische Ethik im frühneuzeitlichen Naturrecht. Studien zur Geschichte des Völkerrechts, 14. Baden-Baden: Nomos, 2007. Pp. 221. ISBN 9783832926922. €49.00 (pb).
Reviewed by Carlos Sánchez-Moreno Ellart, University of Valencia
[The reviewer apologizes for the lateness of this review, for which he alone is responsible.]
This book approaches one of the most influential modern jurists, from the point of view of the influence that ancient philosophy--specifically Stoicism--and Roman law exercised on his theories.
After a short foreword and a clear introduction (1-15) the author focuses his inquiry on the main works by Grotius, i.e. De iure praedae commentarius in the first part (17-81) and De iure belli ac pacis libri tres in the second part (85-191) in order to pinpoint the elements of Roman law implied in the formulation of Grotius' natural law theory. The book ends with a brief chapter of thoughtful conclusions.
In the introduction, Straumann develops his view that Roman law had a decisive influence on Grotius's legal thought. Firstly the use of Roman legal sources in Grotius' work is as superficial as that of other authors of his time, who employed it as a purely rhetorical instrument, but deep down Grotius developed his theory of natural law with arguments based upon ancient sources.1 These roots in the ancient thought of Grotius' work and especially his debt to ancient jurisprudence are tracked down in the following chapters from his main books: De iure praedae commentarius (17-84, including Mare liberum and the Theses XVI) and De iure belli ac pacis libri tres (85-195). The main points touched by Straumann are the most significant of Grotius' thought, i.e. his theory of sources, his method, and the fundamental norms of natural justice as the origin of subjective rights. Straumann is aware of the strong differences of perspective between ancient and modern thought and underlines the absence of a concept such as 'subjective right' in Roman jurisprudence or in ancient thought (9).2
De iure praedae commentarius sprang from a legal opinion drawn up by Grotius in the context of the seizure of the Santa Catharina, a conflict between the Dutch East India Company and the Crown of Portugal, at that moment united to the Crown of Spain. Some of the central ideas of this work, such as the identification of libertas with dominium (starting from Justinian Inst. 1.3), or the use of force and its legitimacy have had enormous influence on subsequent theories and also on legislation.3 Grotius uses as a base of his theory Cicero (mainly De officiis) and Roman jurisprudence in order to state natural law norms are not only grounds for persons and commercial companies, but also for human communities. This argument means, as Straumann points out, that the analogy between natural and juristic persons is used as a tool to justify VOC' s position not only on private, but also on public grounds. Free trade in Grotius' view is a mere consequence of private ownership and its natural law fundament. This is the reason why he interprets D(igest). 18.1.1 (Paul 33 ad ed.) in this sense, stressing the role of the extinction of common goods (74 and n. 254) and why he deduces from these premises the natural origin of the contractual system. One of the relevant points in this context is the role played by violence to defend natural rights. This problem is differently treated in these three books, and Straumann underlines this problem in detail (77 ff.). In Grotius' thought the question of bellum iustum is related to the Roman theory of delicta (considered as private matters), and significantly within a private law context in which D. 220.127.116.11 is, significantly, a main argument. Straumann points out the general framework in which Grotius operates--significantly Gai. 3.88-- and how this point of view shapes the problem of the ius puniendi in general terms (77-80).4 This approach deeply affects his conception about ownership and the role of political authority regarding private ownership and both subjects were to be dealt with in depth in his subsequent work.
The second part is a thorough commentary on De iure belli ac pacis libri tres, written when Grotius was older and mainly occupied with classical studies, after having been the object of political and religious prosecution. The essential bases of Grotius` theories are again both Cicero and Roman jurisprudence, but the interpretation of them here is more complex. One of the most outstanding elements of Grotius' new approach is the systematic theory of sources (89-96), a new theory in which rhetoric plays a more significant part, since it is related to Cicero's interpretation of Carneades in De legibus and the leading theme of human nature. Grotius practically limits his sources to antiquity. The influence of ancient rhetoric is dealt with in detail (95-127), since it means in many respects, the main thread of Grotius' philosophy or at least the general outline in which he develops his ideas. Roman law is rightly treated in the light of rhetoric, as a fundamental element of the orator's instruction (Quint. Inst.18.104.22.168), but the problem of up to which point rhetoric is either an important element of Roman jurisprudence or not is a different matter. Straumann outlines the influence of the School of Salamanca--an uncontroversial matter--but points out that in De iure belli ac pacis libri tres Grotius aiming to build a system of sources deeply rooted in classical antiquity, especially using classical authors in a rhetorical context in which exempla are quoted as evidence. Working within this theoretical model, civilized peoples (gentes moratiores) are those who derive their civilization from a Greco-Roman background (125), which in its turn justifies the selection of sources. For example, the subject of appetitus societatis, one of the star themes of Vázquez de Menchaca is tackled from a Roman prospective, essentially influenced by Stoic philosophy through Cicero's De finibus.
Straumann's research emphasizes that the right to war plays an essential part as the basis of punishment (ius puniendi) and that this right is not only related to private delicta but also to crimes. As the author points out, Locke made use of this theory in his discussion with Robert Filmer, and this idea had important and 'revolutionary' consequences in political thought, especially on liberalism and the American constitution. Grotius' thesis is based mainly on Roman ideas, such as Cicero's definition of vindicatio in De inventione 2.161. Other ancient topics are also dealt with in that way, such as the actio popularis. It is difficult to distinguish what is actually in classical thought and what is added from a modern perspective, but Straumann succeeds in explaining the use of classical sources in Grotius' philosophy and how these theories were influential in their turn.
1. Straumann (10) quotes R. Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford 1999), who states that it is easy to discover in Grotius' political thought the "extremely deep roots in the philosophical schools of the ancient world" (9).
2. This question has been strongly disputed. For Michel Villey's ius naturale theory, in addition to the literature cited by the author (n. 196) vid. A. D' Ors "Aspectos objetivos y subjetivos del concepto de ius", en Studi in memoria di Emilio Albertario II, Milan, 1953, 279 ff.
3. As Straumann recognizes, this theory originally appears in F Vázquez de Menchaca, Controversiarum illustrium aliarumque usu frequentium, Salamanca 1564. vid. e.g. K. Seelmann, Die Lehre des F. Vázquez de Menchaca von dominium, Köln 1979.
4. Straumann argues that the differences in the treatment of the ius puniendi in the Theses and in De iure praedae and De iure belli ac pacis argue for a later dating of the former (82ff).