Popular Liberty, Princely Government, and the Roman Law in Hugo Grotius's De Jure Belli ac Pacis

Once hailed as "the miracle of Holland" by Henri IV of France, Hugo Grotius is perhaps most remembered in the history of political thought for his pivotal role as one of the intellectual founders of modern international law, as set out in his chief work, De jure Belli ac Pacts, first published in Paris in 1625.1 What is perhaps remembered less often, however, is Grotius's rigorous engagement with the texts and ideas of Classical Antiquity in designing his system of moral and political thought. As much recent scholarship has shown, Grotius carefully crafted his political and legal ideas using textual authorities of the Aristotelian and Stoic traditions to give content to his understanding of the natural reasons undergirding basic moral principles governing human society.2Equally important, however, was Grotius's engagement with classical Roman law, an aspect of his thought that has commanded comparatively less attention in the recent scholarship and which traditionally, though wrongly, has been regarded as dispensable and substantially irrelevant.3 Grotius, who was made an honorary doctor of civil law in the humanist law faculty of Orleans in 1598, relied on his Civilian legal training throughout his career, while in the service of state, as Attorney General of Holland and Zeeland and as Pensionary of Rotterdam, and in the service of the Dutch East India Company, in which capacity he would write the Mare Liberum as well as De jure Praedae.4 Roman law was additionally a central influence in his more formal and systematic legal theory, such as his Inleidinge tot de Hollandsche Rechtsgeleerdheit (1619-21, published in 1631) which combined Roman law with custom to produce one of the major early modern contributions to Roman-Dutch law.But his application of Roman law extended beyond the technical arcana of jurisprudence. Like many "publicist" jurists of his age such as Althusius, Limnaeus, and Conring, Grotius treated the Roman codebooks of the Corpus Iuris Civilis, as well as the vast commentaries of the Glossators and the Bartolists, as a kind of legal supermarket supplying concepts and doctrines which could be used eclectically for the analysis of political and constitutional questions.5 This wide application of Roman law is most readily visible in Grotius's use of Civilian arguments in disputes arising in the imperial politics of his age, such as in the classification of the open seas as res nullius, making them ineligible, as he argues in Mare Liberum, for private acquisition by right of occupation (titulo occupationis) or by right of use (titulo praescriptionis).6 Given his mastery of the civil law, it is not surprising to observe, as Peter Stein finds, that "what natural reason prescribed (for Grotius) often turned out to be what was set out or what could be inferred from Justinian's texts."7Grotius's application of Roman law, however, was not exclusive to his international thought but extended deep into the core of what Annabel Brett has called his "civil philosophy," concerning such fundamental questions as the origins of the state, the constitutional structure of civil government, and the proper distribution of rights and powers between the people and their government.8 In addressing these questions of political theory, Grotius owes a great intellectual debt to the juridical grammar and vocabulary of the Roman law, for, as we shall see, the substantive constitutional doctrines of civil government and public law in Grotius's thought, especially in De Jure Belli ac Pacis, were patterned in the mold of actionable rights and powers originating in Roman private law.Nowhere was this application of Roman private law more controversial than in Grotius's analysis of the "free people" (populus liber), a concept which functioned as the starting point for his own civil philosophy. Like his early modern contemporaries, Grotius appealed to the Romanist legal notion of a "free person" to understand the attributes and the scope of popular liberty, especially in treating the controversial doctrine that a free people may voluntarily alienate their liberty and subject themselves under the domination of princely government, just as a free person in Roman law may similarly subject himself to the domination of a master. …