Benjamin Straumann, Roman Law in the State of Nature. The Classical Foundations of Hugo Grotius’ Natural Law (Cambridge University Press, 2015). ISBN: 9781107092907, 286 pp., £65.00.
Reviewed by Arthur Weststeijn
[1] Over the past decade, the scholarly apprais
al of the Dutch humanist scholar Hugo Grotius has changed fundamentally. The seeds of this change were laid in Edward Keene’s Beyond the Anarchical Society. Grotius, Colonialism and Order in World Politics from 2002, which iconoclastically interpreted Grotius as essentially an imperial ideologue, turning upside down Grotius’ celebrated status as founding father of modern international law. Following Keene’s lead, a number of historians has focused in more depth on Grotius’ colonial background, contextualising his early career in the service of the VOC (Dutch East India Company) that hired the young Grotius to defend its actions overseas at the start of the seventeenth century. First, in 2006, Martine van Ittersum published Profit and Principle. Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies, 1595-1615, a painstaking analysis of the development of Grotius’ key treatise, De iure praedae (or De Indis), written on request of the VOC. Then, in 2008, Eric Wilson took up the same theme with The Savage Republic: De Indis of Hugo Grotius, Republicanism, and Dutch Hegemony in the Early Modern World System (c.1600-1619), followed in 2011 by Peter Borschberg’s Hugo Grotius, the Portuguese and Free Trade in the East Indies. Obviously, each of these three studies approaches Grotius in a different way, but all share a similar assumption that if we want to understand and assess Grotius’ legal scholarship, we should start with a contextual analysis of his actions and ideas against the background of Dutch colonial expansion in Southeast Asia.
[2] In his Roman Law in the State of Nature. The Classical Foundations of Hugo Grotius’ Natural Law, the Swiss legal historian Benjamin Straumann once again revisits the development of Grotius’ legal thought from a contextual perspective. Yet the context that Straumann brings into the limelight is fundamentally different from the one that Van Ittersum, Wilson and Borschberg have focused on. Straumann’s main concern is not the concrete political background to Grotius’ writings, but rather the intellectual traditions that he belonged to. In particular, Straumann holds that Grotius should be taken seriously as a humanist scholar who developed his ideas out of classical (specifically Roman) texts and theories, in which Cicero and the Digest stand out. Grotius’ manifold use of these sources, Straumann argues, should not be seen as mere ornament but profoundly shaped the methodology and the substance of his legal writings, especially as to his conception of the state of nature, natural rights and the just causes of war. For Straumann, this approach is not only necessary for understanding what Grotius’ arguments were all about, paying justice to the contents of his ideas; it is also instrumental in shifting the recent historiographical trend that interprets (and thereby criticises) Grotius mainly as a colonial ideologue. With studied obliqueness, Straumann reveals his target when taking distance from “some scholars” (he means Van Ittersum et al.) who “seem to seek to discredit Grotius’ arguments by studying the political and socio-economic conditions under which they emerged” (p. 9). In the corresponding footnote (as with Grotius, the devil is in the detail), Straumann then adds: “Such discrediting is, of course, impossible; it depends on the genealogical fallacy.” In other words, Straumann wants to place Grotius back on his intellectual pedestal by showing that the substance of his writings cannot be reduced to their political context and Grotius’ service for the VOC.
[3] The result of this effort is a very sophisticated analysis of the ways in which classical rhetoric, Ciceronian moral philosophy and the Corpus iuris were adopted and adapted by Grotius in the development of his legal writings, from De iure praedae to the epoch-making De iure belli ac pacis. Those familiar with Straumann’s work will encounter few surprises: the book is mainly based on already published material, especially Straumann’s PhD thesis published in German in 2007, and the main purpose of this translation seems to be to make his scholarship available to an English audience. That decision is vindicated by Straumann’s unmatched command of classical sources combined with his clear eye for legal intricacies (Straumann especially excels in elucidating Grotius’ reading of Cicero). Much more could have been won with this edition, however, if an editor had improved the structure of the book, which slightly suffers from being a collage of different chapters and articles, with some unnecessary repetitions and interruptions in the narrative.
[4] More importantly, Straumann at times seems to be contradicting his own agenda when he acknowledges, for example, that “pragmatic reasons and political motives” motivated Grotius’ writings (p. 20), that Grotius developed his doctrine “as part of a legal and moral defense of imperialist expansion” (p. 98), that De iure praedae functioned “as a legal apologia for the VOC’s military expansion in Southeast Asia” (p. 180), and that “Grotius’ motivation to establish a natural right to punish […] can be explained by looking to the arguments with which his legal brief De iure praedae was originally concerned”, i.e. the defense of the VOC (p. 207). The question therefore arises whether Straumann’s professed aim to focus on the substance and intellectual influences instead of the practical motivations and political context of Grotius’ writings is truly viable. Can substance and context be separated that easily? A case in point of this problem is Straumann’s very lucid analysis of the influence of classical rhetoric on Grotius’ method. Straumann skilfully shows how rhetorical strategies taken from Cicero and Quintilian framed Grotius’ methodological distinction between natural law and the law of nations. But strikingly, there is no discussion of the audience Grotius was writing for – and the audience is obviously of prime concern in any rhetorical theory. The significance of what Grotius was arguing relies at least partly on how he tried to convince his audience, but Straumann gives very few clues for this kind of rhetorical contextualisation. As a result, key issues in the development of Grotius’ legal thought, such as “the greater emphasis that Grotius placed in De iure belli ac pacis on the doctrine of contracts” (p. 191), are not explained satisfactorily, for example in the concrete context of treaty-making in Southeast Asia in which Grotius was deeply involved. Even more remarkable is Straumann’s utter silence about the political background to Grotius’ notion of a right to resistance, which was of obvious topical concern in relation to the Dutch Revolt against Habsburg Spain.
[5] Overall, Straumann’s analysis thus remains a very introspective one, which looks at Grotius’ writings almost entirely from within the text, not from the context. This also explains why he ends his book with a rather traditional search for similarities between Grotius and John Locke and for Grotius’ impact during the Enlightenment and his on-going significance today. The point that Straumann hammers home is that the notion of subjective rights that is so essential for modern liberalism originates in classical Roman sources, with Grotius as crucial intermediary. That is a strong argument, and Straumann persuasively succeeds in making it: Grotius is powerfully placed back on his intellectual pedestal. But it does not truly challenge the alleged “genealogical fallacy” of the approach that explains Grotius’ writings mainly through their concrete political context.
The Royal Netherlands Institute in Rome, February 2016