We discussed two topics:
In chapter 2, Grotius follows his standard method of consulting three sources of law in answering the question of whether war is ever justified. These sources of law are: nature (§1), divine command (§2), and custom or consent (§3). We talked about nature as a source of law.
The question, as Grotius frames it, is whether having “Recourse to violent Means for Self-Defence” is repugnant to human society. “Self-defence” includes the defense of things that are “properly our own,” including our lives, limbs, liberties, property, and the “Necessaries of Life” (184).
His answer is that the permission to use violence in defense of these things is not repugnant to society. The idea is that if we were not permitted to use force in defense of these things, “human Society and Commerce would necessarily be dissolved” as people would “seize on the Goods of another” (184-85).
In some of the arguments that I wrote on the board, I referred to the use of violence discussed in the chapters on self-defense and war as “punishment.” I think that was a mistake on my part (well, a mistake on Grotius’s part). In the chapters under discussion, Grotius was talking about using force to prevent the violation of one’s rights. However, punishment involves the use of force after the violation has occurred.
Since that is so, punishment raises problems that self-defense does not: what’s the point if it is too late to prevent the violation? Retributivists say the point is to give those who violate rights what they deserve. As we will see next time, Grotius was not a retributivist. Grotius’s answer is that punishment is justified to prevent future violations of rights. In that way, for Grotius, the justification for violence in self-defense is the same as the justification for violence in punishment: both are justified because they prevent violations of rights that would be repugnant to human society.
“War” for Grotius can be either private or public: duels are private wars while wars declared by states are public ones. Private individuals lose the right to “repel Injuries [injustices -mjg] by Force” to the state. But the “Right still subsists … when the Way to legal Justice is not open” (240–41).
We talked about what that might mean. Our best interpretation was that the surrender of the right to use force is conditional on the state’s protection.
One question Hobbes is going to raise is: what happens when the state poses the threat? This is, obviously, what happens when the state seeks to punish. Do those threatened with punishment retain the right to act in defense of their lives, limbs, or liberties?
Also, Bogdan noted what looks like an important loophole for Grotius. Grotius allowed individuals to use force when judges “refuse openly to take Cognizance of Matters in Dispute” (241). Does that give people the right to take the law into their own hands when they don’t like the judge’s ruling? Grotius cannot have meant that! But he could have done more to explain why that isn’t a consequence of his view.
Grotius is widely credited with being among the first to clearly identify rights as things that individuals have and can use. (This is the second sense of “right” discussed last time, the “moral quality” annexed to a person “enabling him to have, or do, something justly” (138)). Rights, for Grotius, are thus distinct from the right thing to do. Rather, they give individuals who have them the discretion to choose what to do.
Grotius used this theory of rights to argue for absolute government, meaning government that is not accountable to the people. His idea was that people could use their rights by surrendering them: individuals could agree to slavery and a whole society could subject itself to an absolute ruler. Thus we have a surprising combination. Grotius put individual natural rights at the foundation of his political theory. But he used them to argue for the possibility of legitimate slavery and absolute government.