History of Philosophy Quarterly

Volume 26, Number 4, October 2009

Hugo Grotius, Contractualism,

and the Concept of Private Property:
An Institutionalist Interpretation
Marcelo de Araujo

I n this paper, I discuss Hugo Grotiuss theory of private property.

Even though Grotius is one of the most important philosophers in
the tradition of natural law, he does not conceive of a property right in
terms of a natural right, but rather in terms of a manmade institution.
The right to own an object was created by men as a development of the
natural right to use an object that has no owner. In his argument for a
transition from use right to property right, Grotius presents the basic
elements of a theory of human institutions. First, he elucidates the
concept of law, even natural law, as something the existence of which
depends on the existence of a will. Second, he explains the existence of
normative entities, such as private property or territorial boundaries,
as resulting from the collective recognition that a certain object has a
normative status, not in virtue of its physical properties but in virtue
of a mental act performed at a collective basis.

I
Grotiuss main works are De jure praedae and De jure belli ac pacis.
The latter was published in 1625, while the former was only partially
published during Grotiuss lifetime, in 1609, as Mare Liberum. It was
not until 1864 that the remaining part of De jure praedae was discovered
and then published four years later. (The title De jure praedae was given
by its editor, not by Grotius himself).1 The previously published text
Mare Liberum constitutes the twelfth chapter of the larger work De jure
praedae. In the second chapter of De jure praedae (the Prolegomena),
Grotius presents nine rules, from which he derives thirteen laws. The
rules themselves do not prescribe the enactment of any actions. They
are not commands but basic propositions the truth of which not even
the skeptic, at least in principle, could put into question. Laws, on the

353
354 History of Philosophy Quarterly

other hand, are kinds of command. They are not, strictly speaking, sup-
posed to be true but to be valid. The transition from what is stated by
the rule to what one ought to do for the sake of law is possible because
the rules simply point out that the existence of a certain law depends
on the existence of a certain will, whereas the laws express what the
content of the will is.
A rule, thus, enables us to do three things: (1) to recognize what counts
as law, (2) to realize what the source of the law is, and (3) to identify the
individuals who are addressed by the law. The rules have the following
basic structure: the will of X counts as law ( jus) for Y. The laws, then,
enjoin Y to do what X wills. The will of X is a legitimate law for Y if, and
only if, X has the right ( jus) to command Y to act upon his or her will.
A right ( jus) is a form of power or authority to which Grotius refers as
a facultas or potestas and which entitles one to do something rightfully.
Grotius is aware that the same word, jus, is used in this context to
convey two different ideas: jus, comprehended as a facultas or potestas,
differs from jus comprehended as the institution of law.2 Both X and Y
can be either a single individual or a body of individuals. Consider the
first five rules in order to illustrate how Grotius speaks of rules:
Rule 1: What God has shown to be His Will, that is law.3
Rule 2: What the common consent of mankind has shown to be the
will of all, that is law.4
Rule 3: What each individual has indicated to be his will, that is law
with respect to him.5
Rule 4: What the commonwealth has indicated to be its will, that is
law in regard to the whole body of citizens.6
Rule 5: What the commonwealth has indicated to be its will, that is
law for the individual citizens in their mutual relations.7
Grotius assumes that God wants human beings to preserve their own
existence as much as possible. Hence, two natural laws (leges juris
naturalis) may be derived from the first rule. The first law (lex I) is the
following: It shall be permissible to defend ones own life and to shun
that which threatens to prove injurious. The second law (lex II) affirms:
It shall be permissible to acquire for oneself, and to retain, those things
which are useful for life.8 The first and second laws of nature aim solely
at the furtherance of ones own good (de bono suo), irrespective of what
happens to other individuals.9 For this reason, Grotius argues that even
the skeptics (the Academici) would accept the validity of the first and
second laws of nature.10 Indeed, the skeptics claim, as Grotius affirms
later in De jure belli ac pacis, is that human beings are predominantly
moved by self-interest. It is for the sake of self-interest, accordingly, that
human laws are created.11
 hugo grotius, contractualism, and private property 355

What would human interaction look like if every human being were
constantly determined to do, without any restriction, what the first and
second laws of nature determine? Against the skeptic, Grotius argues
that, if individuals were constantly intent on implementing their own
interest, human interaction would be characterized by conflict rather
than by harmony. In order to comply with the first law of nature and
ensure that my life is not ever endangered by other individuals, I could
adopt, for example, the preemptive strategy of always threatening other
individuals before being threatened by them in the first instance. In like
manner, in order to act in accordance with the second law of nature,
I could take from other individuals and retain for myself whatever I
judged to be useful for my own life. The problem, however, is that the
unrestrained compliance with the first and second laws of nature, which
derive from Gods will that human beings preserve their own existence
as much as possible, would lead to human destruction, rather than to
human preservation. Thus, even though the first and second laws of
nature command individuals to act upon Gods will (to promote human
preservation), these laws alone are not sufficient to guarantee the ful-
fillment of Gods will. As Grotius puts it,
But God judged that there would be insufficient provision for the
preservation of His work, if He commended to each individuals care
only the safety of that particular individual, without also willing that
one created being should have regard for the welfare of his fellow be-
ings, in such a way that all might be linked in mutual harmony as if
by an everlasting covenant.12
Thus, even though individuals are predominantly moved by self inter-
est, or love for oneself, they are also capable of indulging themselves in
love for others.13 Because human beings are capable of love for others,
they are also able to live a peaceful life, as though it resulted from a
kind of assent to an enduring pact among themselves. This capacity of
love for other (amor alterius), to which Grotius also refers in terms of
a desire of society (appetitus societatis),14 a care of society (societatis
custodia),15 or friendliness (amicitiae), precludes one individual from
pursuing the maximization of his or her own interests in a way that is
deleterious to the maximization of the interests of other individuals.
But it is important to notice, as many authors have already pointed out,
that Grotiuss thesis that human beings are capable of love for others
cannot be taken as an endorsement of the traditional Aristotelian and
Thomist idea according to which human beings would be by nature a
kind of political animal.16 Friendliness toward other individuals may
be considered a natural human feature only to the extent that reason is
the supreme attribute of human beings.17 It means that, in our rela-
tionship with other individuals, we are not simply moved by a natural
356 History of Philosophy Quarterly

desire to act friendly toward them. We also understand that other indi-
viduals will not treat us in a friendly fashion unless we are also friendly
to them. We understand, moreover, that to react with friendliness to a
threatening party may be self-damaging, and this runs counter to the
first law of nature. Thus, because human beings are capable of love
for others (amor alterius), they are able to live in society. On the other
hand, because they are also moved by love of oneself (amor sui), it is
necessary that the social life be governed by principles that preclude the
unconstrained pursuit of ones own interest. Grotius formulates, then,
two further laws of nature that relate, differently from the first and
second laws of nature, to the well being of other individuals (de bono
alieno). The third law of nature affirms the following: Let no one inflict
injury upon his fellow. The fourth law of nature, in its turn, affirms: Let
no one seize possession of that which has been taken into possession of
another.18 The third and fourth laws of nature restrict compliance with
the first and second laws of nature to the limits of fairness. It is through
observance of the second and fourth laws of nature that the concept of
property (dominium) may arise. Once the concept of property has been
introduced, a distinction between mine and thine can be made. But,
for Grotius, the existence of a property right cannot be justified solely
on the grounds of the second and fourth laws of nature. The existence
of a property right depends also on the existence of a human institution
in the context of which a diversity of objects such as apples, land, cloths,
chattels, etc., may acquire the status of someones property.

II
Grotius argues that, in the state of nature, individuals enjoyed a le-
gitimate right to avail themselves of whatever was necessary to fulfill
their needs. This right, however, should not be confused with a property
right. Grotius points out that the same word (dominium) is used to refer
to different concepts, namely, the right to use an object and the right
to own it. The first kind of right is not, according to Grotius, a human
creation but the expression of a natural law (the second law of nature).
But a property right, on the other hand, is a human institutionit came
into existence through a gradual process of individuals interaction
with each other. Grotiuss thesis is that, in the state of nature, one has
a legitimate right ( jus) to use an object that is common (communis) to
everyone. The word communis, like the word dominium, is ambiguous,
for it can mean either something that has no owner at all or something
that belongs to everyone.19 In the state of nature, to say that an object
is common does not mean to say that everyone possesses it but, rather,
that it does not belong to anyone. If an object belongs to everyone, then
it is called public.20 The right that one enjoys in the state of nature is
 hugo grotius, contractualism, and private property 357

defined by Grotius in terms of a power (facultas) to make a non-unjust

(non injusta) use of what is common to everyone, that is, what has no
owner.21 A distinguishing feature of the non-unjust use of an object that
has no owner is that anyone is entitled to use it, with the proviso that
it is not being used by another person. This proviso is established by
the fourth law of nature. I may, for instance, sail from one point to an-
other throughout the seas. No one could legitimately stop my ship and
require me to turn away. True, a more powerful captain could compel
me, by means of violence, to take another route, but his action would
represent, according to Grotius, a transgression of the second law of
nature. For this reason, I would be morally entitledthough perhaps
not physically capableto resist and insist on my right to use the sea.
Nevertheless, neither I nor anybody else could legitimately claim a
property right over the sea.
The basic idea here is that, if an object is common (in either sense
of the word), I may use it, as long as it is not being used by another
party; and as long as I use it, no one is entitled to take this object from
me, even if no one formally possesses it. This is, indeed, a very basic
principle, for it pervades almost every ambit of our social life. Consider,
for instance, the occupation of a bench in a public park: I may sit on the
bench if it is empty, and as long as I sit on it, no one can simply require
me to stand up in order to occupy the same bench. Nevertheless, I do
not possess the bench.22 In like manner, I may, for instance, pick up a
product from the shelf of a supermarket, and as long as I hold the prod-
uct in my hand or place it in the shopping cart, no one can simply take
it from me, even if I do not yet formally possess it. Who gets hold of a
common object prior to another party has, for this very reason, priority
in using it. This basic idea is so fundamental for the functioning of our
social life that one might feel tempted to assume, as Grotius did, that it
is not a simple human convention but the expression of a natural law
the validity of which not even the skeptic could reasonably put into ques-
tion. The next step in Grotiuss argument consists, then, in elucidating
how the concept of property right may be derived from the more basic
concept of use right.
Grotius realized that, in some circumstances, one cannot make use
of an object without definitely depriving other persons of using it later.
When I pick up, for instance, an apple from a tree and eat it, I prevent
other persons from eating the same apple in the future. By using it,
the apple, in a certain sense, becomes part of me.23 (Grotius affirms that,
in this case, the object is converted into the substance of the user). Ac-
cordingly, I become the proprietor of the apple, for now it cannot belong
to anybody else.24 For this reason, Grotius points out that a clear-cut
conceptual distinction between use right and property right could not
358 History of Philosophy Quarterly

be drawn in these cases. As he puts it in De jure praedae, with respect

to such items as food and drink, a certain form of property ownership
was inseparable from use.25 And in the Jure belli ac pacis, he affirms
that the right to use an object by consuming it was, in the state of
nature, a substitute for the property right.26 Grotius refers to objects
such as food and drink as items of a first kind (prioris generis). These
objects are necessary for life; for this reason, the second law of nature
determines that we may seize and keep them. But there are also a va-
riety of objects that are necessary for life only in a very indirect way.
They do not really provide us with more safety (incolumitatis), albeit
they grant us some degree of comfort (commoditatis).27 According to
Grotius, objects such as cloths, chattels, land, etc., which are necessary
for life in an indirect way, are items of a posterior kind ( posterioris
generis).28 These objects may be either movable (mobiles), like cloths,
chattels, etc., or unmovable (immobiles) such as fields. Objects of the
posterior kind do not become ones property in the same way the objects
of the first kind do, for they can be used without being used up; that is,
one could in principle make use of them without necessarily preventing
other persons from using them later. Which conditions, then, must be
fulfilled for a person to be in a position to claim not simply a use right
but a property right over an object of the posterior kind?
Grotius argues that the existence of an object as ones private property
is in a certain sense, produced by reason (ratione quadam productum
est).29 In other words, private property is not a natural state of affairs
but something produced by human reason, for nature, by itself, does
not bestow property rights upon any persons.30 Grotiuss thesis is that,
in the state of nature, individuals gradually came to behave toward
objects of the posterior kind as though they had the same features of
an object of the first kind, that is, as something incorporated into the
very substance of their users. The objects themselves did not undergo
any change, but the way people envisaged them did. Grotius refers to
this kind of change in terms of a mental act. His argument in this
regard is that, initially, when we get hold of an object in order to use it,
we have to recur to some sort of physical effort (applicationem cor-
poralem), which he calls occupation (occupatio).31 As long as a person
legitimately occupies an object, in such a way that the occupation does
not result from the usurpation of the right that another party had to
occupy it in the first instance, this person may resisteven by means of
violenceany encroachments upon the object that he or she occupies. At
first, the resistance against the inroads of a belligerent party happens
in the same way the occupation itself began, namely, through some kind
of physical effort. But, among rational beings, an occupation that began
 hugo grotius, contractualism, and private property 359

with a physical effort may, after some time, endure mentally; that is, the
occupation may simply be retained in the mind (animo retineri).32
Grotius is not explicit at this point, but it is fairly reasonable to as-
sume that an occupation cannot be kept in the mind on a unilateral
basis, that is, only in the mind of the occupying party. It is also neces-
sary that the other parties recognize the object as something to which
the person in question has a legitimate claim. Private property, thus,
arises out of collective recognition that a person is entitled to retain or
keep for oneself an object he or she has occupied in the first instance.
But, it might be questioned now, to which extent does a property right
differ from a simple use right? How, exactly, does a mental act, compre-
hended in terms of collective recognition, give rise to a property right?
The transition from the natural right to use something useful for life to
the institutional right to possess a thing that makes life more comfort-
able constitutes a crucial step in Grotiuss theory of private property.
Grotius draws a terminological distinction between the occupation of
a movable object and the occupation of an unmovable object: Occupation
of movable objects is apprehension, and of unmovable objects is fortress
or boundary (Occupatio in mobilibus est apprehensio, in immobilibus
instructio aut limitatio).33 The second kind of occupation should enable
us to distinguish more clearly property right from use right. Let me
resume the example of use right that I have mentioned before: in the
state of nature, I have a right to use the seas, but I do not possess the
seas. But let us suppose now that I, in collective work with other persons,
continually use, for fishing and transport, a small fraction of the sea, say,
that fraction of the sea adjacent to the shores of the region in which I
and other persons have settled for some time. (There were no settlers
before we came). As long as wethe first settlersoccupy this otherwise
small fraction of the ocean, we have a legitimate use right over it. For
this reason, we may resist by means of violence other parties attempts
to take it from us. Let us suppose that we succeed in building some ma-
chines such as catapults or cannons that enable us to keep prospective
invaders at the safe distance of, say, three miles off. Grotiuss point is that,
in the long run, through continual occupation and defense of this small
fraction of the sea, there may appear the collective recognitionboth
on the side of the settlers and on the side of prospective invadersthat
the first settlers have not only a use right over that small fraction of the
sea but a property right over it. This is an important point, for it means
that we have now a legitimate claim over this portion of the seas even
during the time we are not really using it for fishing or transport. This
is, indeed, the way maritime boundaries came to be established in the
seventeenth-century. As John Ruggie puts it,
360 History of Philosophy Quarterly

The principle which was first enunciated by Hugo Grotius at the

beginning of the seventeenth century and which states slowly came
to adopt was one that defined an international maritime order in
two parts: territorial sea under exclusive state control, which custom
eventually set at three miles because that was the range of land-based
cannons at the time; and the high seas beyond, available for common
use but owned by none.34
What holds for unmovable objects such as territorial sea also holds for
unmovable objects such as fields and land. Let us suppose further that
the first settlers may have used the soil for agriculture and, in order to
protect the fruits of their cooperative work against pillage and plunder,
they may also have erected walls around the fields they cultivated.35 The
wall acted, then, as a physical barrier against the onslaughts of possible
invaders. In the long run, the occupation that began with a physical effort
and was at first maintained by dint of a physical barrier may have been
simply retained in the mind of all the parties involved. The wall may
have decayed, and in its place, there remained just a line reminiscent
of the limits of the original occupation. Because the occupation was re-
tained in the mind of all the parties involved, this line functions now
as wall, even though it does not really have the physical properties of a
wall. This line is, actually, a boundary (limitatio); it is something that
exists not only in virtue of its physical properties but as a result of the
collective recognition that the first settlers have a legitimate property
right over the region they have successfully occupied, cultivated, and
defended.
According to Grotius, the existence of a property right presupposes
the existence of the previous natural right to use something that has no
owner. But it is important to stress that a property right is, nevertheless,
a human institution and not a natural state of affairs. In this regard,
the thrust of Grotiuss account of the emergence of private property as
something in a certain sense, produced by reason and retained in the
mind of all parties involved does not differ much from the account of
private property that John Searle proposes in the context of his theory
of institutional facts. A close examination of Searles theory would be
beyond the scope of the present paper. My intention is simply to point
out that Grotius explains the origins of private property in a way that
is similar to Searles account of the ontology of such things as territorial
boundaries, property rights, money, etc.
Searle argues that, through collective recognition, human beings are
able to ascribe to objects certain functions that could not be performed
solely in virtue of their physical properties. His account of the estab-
lishment of a boundary is particularly apposite for our discussion here.
Searle affirms that the line of stones of a long-decayed wall acquires the
 hugo grotius, contractualism, and private property 361

status of a territorial boundary from the moment individuals start to

behave toward the line as though it were a wall. As he puts it, That is
we imagine that the wall continues to serve its function, but no longer
in virtue of its physical structure. It serves its function in virtue of the
fact that it has a certain recognized status.36 When Grotius affirms,
in the passages from De jure praedae that I have examined above, that
private property is in a certain sense, produced by reason and that
an occupation can be retained in the mind, he has in mind the same
basic idea: we recognize an object of the posterior kind as though it
had the same status of an object of the first kind; we recognize the
boundary (limitatio) of a region as having the same status of a for-
tress (instructio).
In a previous text, in which Searle discusses the same example
(the establishment of territorial boundaries), he also affirms that the
function can be performed only in virtue of a collective agreement or
acceptance.37 In De jure belli ac pacis, Grotius, in like manner, sustains
that there is a sort of agreement or acceptance underlying the in-
stitution of private property. In this text, Grotius resumes the account
of private property that he had advanced in the De jure praedae. But
he argues now that private property emerges not through a mental
act alone (non animi actu solo) but through a pact ( pacto) that may
be either explicit (expresso) or tacit (tacito)that is, through some
sort of agreement or acceptance. Let me quote the relevant passage
in full:
Thus we see what was the Original of Property, which was derived
not from a mere internal Act of the Mind [non animi actu solo], since
one could not possibly guess what others designed to appropriate to
themselves, that he might abstain from it; and besides, several might
have a Mind to the same Thing, at the same Time; but it resulted from
a certain Compact and Agreement, either expressly, as by Division;
or else tacitly, as by Seizure. For as soon as living in common was no
longer approved of, all Men were supposed, and ought to be supposed
to have consented, that each should appropriate to himself, by Right
of first Possession, what could not have been divided.38
Grotiuss theory of property right involves, as we can see, three basic
steps. First, an object is apprehended or occupied by means of some physi-
cal effort. Second, the object at issue is used. One is entitled to go through
the first and second steps inasmuch as one proceeds in consonance with
the second and fourth laws of nature: namely, one may apprehend or
occupy an object with the proviso that it is not already being used by
another party. The third step is taken through the collective recognition
or acceptance that one is entitled to keep an object even when it is not
being used. In De jure praedae, Grotius refers to this act of recognition
362 History of Philosophy Quarterly

or acceptance as something in a certain sense, produced by reason

and retained in the mind. These are mental acts. Yet, Grotius does
not expressly state in De jure praedae that these acts are performed at
a collective basis, that is, by all parties involved in the recognition that
an object such as, for instance, a piece of cloth or a fraction of the ocean
counts as someones private property. But in the passage from De jure
belli ac pacis quoted above, Grotius is more precise as far as this point
is concerned, for he adduces now that private property arises not from
a mere mental act (non animi actu solo) but through a pact that may
either be express or simply tacit.

III
Some recent scholarly works on Grotiuss account of property right have
failed to elucidate adequately the relationship between natural laws and
the institution of private property. This may have been occasioned, at least
in part, by a faulty translation of some relevant passages. Brian Tierney,
for instance, explains Grotiuss understanding of a transition from use
right to property right in terms of a logical process.39 But he does not
elucidate which process it is, nor in which sense it should be logical.
The expression logical process appears in the English translation of
De jure praedae where the Latin text reads ratione quadam, that is, a
certain reason.40 John Salter, on the other hand, correctly affirms that,
for Grotius, the emergence of a property right somehow involves the use
of reason.41 Nevertheless, he argues that an object that was seized without
being immediately consumed becomes ones property if one indicates the
intention to keep its possession for further use in the future.42
This can hardly explain how an object becomes someones property.
Suppose I rightfully occupy a piece of land. As long as I use it, no one
is entitled to take it from me. Yet, I do not possess it. If I stop using
it for some time, another party is entitled to occupy it, even if I have
indicated that I intend to use it again later. If, on the other hand, I
provide this piece of land with a fence, I am not indicating that I intend
to use it later; I am simply preventing other persons from using it now.
By erecting a fence around this piece of land, I am using it, that is, I
am defending it against prospective invaders. The fence by itself does
not turn this piece of land into my private property unless other parties
accept or recognize that I am its legitimate owner. And once others
have recognized the piece of land as my private property, a boundary,
indicated, for instance, by a line of stones on the ground, can play the
same role the fence does.
Salters interpretation may have been misguided by a faulty transla-
tion of the relevant passage at issue here. Where Grotius affirms that,
 hugo grotius, contractualism, and private property 363

for creatures other than irrational beasts, it is enough that the occupa-
tion, which began by means of some physical effort, be retained in the
mind (in aliis sufficit corpore coeptam possessionem animo retineri),
Salter relies on the following translation: it is sufficient if after physi-
cal possession is once taken the intention to possess is maintained.43
What allows the transition from the mere occupation of an object to the
legitimate property of the same object is not the unilateral intention to
keep it but the fact that an occupation, which begins by physical means,
is later retained in the mind of all parties involved, as though the object
in question were still being occupied by means of some physical effort.
Another misleading translation in this regard consists in rendering non
animi actu solo into not by a mere act of the will.44 This translation
renders Grotiuss argument almost unintelligible, for his thesis is that
the existence of a property right depends on a kind of pact. But a pact,
whether express or tacit, is an act of the will. If Grotius intended to at-
tribute the origin of private property to some instance other than a mere
act of the will, it would be, then, unclear why he refers, in the sequence
of the text, to a pactin other words, to something that is, actually, an
act of the will.
Grotiuss thesis, defended in De jure belli ac pacis, that private prop-
erty has its origin in a kind of pact does not conflict with the thesis he
had defended in De jure praedae according to which private property is
in a certain sense, produced by reason and retained in the mind. The
allusion to the idea of a pact simply makes it clear that the mental act at
issue in the creation of a property right is one of acceptance. This act
is performed at a collective basis and can be comprehended as voluntary
assent to the terms of a pact. There is, indeed, some textual evidence
that suggests that, for Grotius, the collective acceptance or recognition
that an object counts as ones property manifests itself mainly through
tacit assent rather than through explicit assent. In De jure praedae,
Grotius affirms that the states (respublicae) were created by means of
a sort of contract for the sake of mutual aid (quodam contracta boni
communis gratia).45 At the beginning, the existence of a state depends
more on the express assent than on the tacit assent of its founding
members. But later, the states come to be sustained more and more by
means of tacit assent, as new members join the already founded political
community.46 Accordingly, express assent plays a more important role
at the inception of a political community, but later the individuals will
to sustain the political community manifests itself mainly through tacit
assent. Because the state ultimately exists to guarantee the protection
of private property, tacitly assenting to the preservation of the state
amounts to tacitly assenting to the preservation of the institution of
private property.
364 History of Philosophy Quarterly

IV
In the modern tradition of the social contract, the figure of the contract
is usually seen as an event (real or only hypothetical) that should put
an end to the state of nature. Because Grotius, unlike, for instance,
Thomas Hobbes or Immanuel Kant, conceived of the state of nature as
a real state of affairs, he also conceived of the contract on nonhypotheti-
cal terms. On the other hand, he did not defend the quite implausible
thesis that a social contract would have taken place once and for all
and that, after this founding moment, civil society would have suddenly
appeared. Grotius seems to have conceived of the overcoming of the
state of nature as a gradual process that was mediated not by a single
but by many explicit and tacit contractual steps. In De jure praedae, he
affirms that, after the creation of private property, a law was posited
(lex posita est) in order to ensure that the institution of private property
would not be violated.47 Then, boundaries were established. And in an
ensuing step, commerce (commercium) was institutionalised. At this
time, states (respublicae) were also founded. As Grotius puts it in the
twelfth chapter of De jure praedae, At a subsequent stage [sc., after the
establishment of private property] commerce began to be widely prac-
tised. ... During the same period of time, moreover, the establishment
of states was first undertaken.48
Social institutions such as laws, boundaries, commerce, and the state
were created for the protection of the institution of private property.
And private property, in its turn, ultimately presupposes the existence
of a noninstitutional entity, namely, the natural right every individual
has to avail herself of what has no owner.49 This last aspect of Grotiuss
theory, evidently, cannot be approached on institutionalist grounds. For
Grotius commits himself to the quite problematic thesis that there are
in the world not only physical objects and human institutions but also
things such as natural laws and natural rights. Grotiuss commitment to
these metaphysical entities notwithstanding, in De jure praedae and in
De jure belli ac pacis, an important step was undertaken toward an un-
derstanding of normative ideas such as law, property rights, boundaries,
and the state in terms of manmade institutions. These institutions are
collectively created and maintained in order to ensure that some very
basic human needs and desires be satisfied. Among these elementary
needs and desires is, for instance, the wish to protect ones own life, as
well as the wish to be able to keep for oneself the objects that are crucial
for the preservation of ones life. For this reason, Grotius argues that, in
some special circumstances, one may be rightfully dispensed to respect
the institution of private property, if it proves to be the only reasonable
means of preserving ones own life. As Grotius affirms in De jure belli
 hugo grotius, contractualism, and private property 365

ac pacis, in a case of absolute Necessity, that antient Right of using

Things, as if they still remained common, must revive, and be in full
Force: For in all Laws of human Institution, and consequently, in that
of Property too, such Cases seem to be excepted.50
If I am starving to death and another individual possess an apple, I
may rightfully take (or try to take) it from him or her. For I tacitly assent
to the existence of the institution of private property only to the extent
that I also recognize that this institution helps me to fulfill, in joint
work with other individuals, some basic needs we all have. But in cases
of severe necessity (gravissima necessitate), the institution of private
property may fail to fulfill the original function in virtue of which it was
created in first instance. For this reason, in these circumstances, I do
not have a reason to behave toward the apple as though it were already
part of the substance of the person who happens to be holding it in his
or her hand now. I consider the apple, rather, as a common object, as
something to which the other individual and I have an equal legitimate
claim. Grotius goes as far as to affirm that, if a case of severe neces-
sity affects only one of the parties, then the other has a duty to give
the apple not for the sake of a rule of charity (caritatis regula) but for
the sake of ones right to preserve ones own life.51 A natural right, such
as the right to preserve ones own life, therefore, overrules any property
rights.
For Grotius, any individual has a legitimate claim to whatever is nec-
essary for the preservation of his or her own life. This claim, however, is
not the simple expression of a wish to preserve his or her own life. This
claim is, rather, a right ( jus), for it has already a moral significance.
Indeed, a right, in the proper sense of this word ( jus proprie aut stricte
dictum), is according to Grotius a moral quality of the person (qualitas
moralis personae).52 But are there really any natural rights? At this
decisive point, Grotius conflates the concepts of right and interest.
His reason for defining subjective rights in terms of the most elementary
demands any human being can reasonably make, as Richard Tuck has
shown, was to oppose skepticism.53 The skeptic could rightfully allege
that it is by no means evident that he himself was endowed with a natu-
ral inclination toward the well-being of other individuals, nor that he
was subjected to a natural or divine law that enjoined him to care for the
interest of his fellowmen as much as he cared for his own interest. But
could the skeptic reasonably doubt he had an inclination toward his own
well-being or that he cared for his own interest, even admitting that he
did not have any concern for the interest of his fellowmen? This, appar-
ently, could not be denied by the skeptic. Thus, Grotiuss methodological
strategy against the skeptic consisted in calling attention to a proposition
that could be taken as immune to the skeptical onslaught, namely, that
366 History of Philosophy Quarterly

every individual has an intrinsic interest in the promotion of his or her

own well-being and only secondarily also an interest in the well-being
of other individuals. This thesis seemed so unquestionable that Grotius
considered it a law of naturealbeit a law of nature quite different
from the laws of nature that premodern thinkers such as Cicero or
Thomas Aquinas had in mind when they employed this expression.
But the conceptual problem remains: having an interest is not the
same thing as having a right, unless some further reason is adduced
for us to behave toward the interest of other persons as though their
interest were not just the expression of a wish but a right, a legitimate
claim backed by moral reasons. In this respect, Jeremy Bentham saw
with paramount clarity that the advocates of natural rights confounded
the concept of interest with the concept of right. Benthams point was
that, no matter how reasonable an interest may be, an interest, taken
by itself, is neither a right nor a moral claim of any sort but just a wish
that a certain state of affairs obtains. Even the basic interests to pre-
serve ones own life or the interest to be able to use without interference
what has no owner is not in itself a kind of right but at most a reason
to create an institution in the context of which this wish might acquire
a new status, namely, to become an individual right. As Bentham puts
it,
Rights are, then, the fruits of law, and of the law alone. There are no
rights without lawno rights contrary to the lawno rights ante-
rior to the law. Before the existence of laws there may be reasons for
wishing that there were lawsand doubtless such reasons cannot be
wanting, and those of the strongest kind;but a reason for wishing
that we possessed a right, does not constitute a right. To confound the
existence of reason for wishing that we possessed a right, with the
existence of the right itself, is to confound the existence of want with
the means of relieving it. It is the same as if one should say, everybody
is subject to hunger, therefore everybody has something to eat.54
Even though Grotius did not go as far to argue, as Bentham did, that
the existence of any rights presupposes the existence of human insti-
tutions in grounding morality in the most basic claims any individual
can reasonably raise, Grotius, in a certain sense, paved the way for a
more secular comprehension of normative ideas such as property rights
in terms of manmade artifacts. If this interpretation is correct, then
Grotius should be seen as predecessor, rather than as an opponent, of
Bentham.55

State University of Rio de Janeiro / Humboldt Foundation

 hugo grotius, contractualism, and private property 367

Notes

1. Cf. H. G. Hamakers Praefatio to Hugo Grotius, De jure praedae com-

mentarius, ed. H. G. Hamaker (Hague: Nijhoff, 1868), v. See also Richard
Tuck, Grotius and Selden, in The Cambridge History of Political Thought,
14501700, ed. J. H. Burns and Mark Goldie (Cambridge: Cambridge Univer-
sity Press, 1991), 504; and Richard Tuck, The Rights of War and Peace: Political
Thought and Political Order from Grotius to Kant (Oxford: Oxford University
Press, 1999), 81.
2. For jus as a facultas, see Hugo Grotius, The Rights of War and Peace,
trans. John Morrice, ed. Richard Tuck (Indianapolis, IN: Liberty Fund, 2005),
1:138. This passage corresponds to Hugo Grotius, De iure belli ac pacis, ed.
B.J.A. De Kanter-Van Hettinga Tromp (Leiden: E. J. Brill, 1939), 31. For jus as
the institution of law, see The Rights of War and Peace, 1:14748. This passage
corresponds to De iure belli ac pacis, 34. Henceforth, I will use the abbrevia-
tion DJBP for De iure belli ac pacis, and RWP for the English translation The
Rights of War and Peace. The equal symbol (=) stands for the correspondence
between the original Latin text and its English translation.
3. Hugo Grotius, Commentary on the Law of Prize and Booty, trans. Gwla-
dysL. Williams, ed. Martine Julia van Ittersum (Indianapolis, IN: Liberty Fund,
2006), 19. This passage corresponds to Grotius, De jure praedae commentarius,
ed. Hamaker, 78: Quod Deus se velle significaverit, id est jus. Henceforth, I
will use the abbreviation DJPC for De jure praedae commentarius, and CLPB
for the English translation Commentary on the Law of Prize and Booty.
4. CLPB, 25 = DJPC, 12: Quod consensus hominum velle cunctos signifi-
caverit, id est jus.
5. CLPB, 34 = DJPC, 18: Quod se quisque velle significaverit, id in eum
jus est.
6. CLPB, 40 = DJPC, 23: Quidquid respublica se velle significaverit, id in
cives universos jus est.
7. CLPB, 42 = DJPC, 24: Quidquid respublica se velle significaverit, id
inter cives singulos jus est.
8. CLPB, 23 = DJPC, 10: Ex hac igitur conjugatione emergunt leges juris
naturalis duae. Prior: Vitam tueri et declinare nocitura liceat. Altera: Adjungere
sibi quae ad vivendum sunt utila eaque retinere liceat.
9. CLPB, 27 = DJPC, 13.
10. CLPB, 23 = DJPC, 11.
11. RWP, 1:79 = DJBP, 7. Laws [sc., according to Carneades] were instituted
by Men for the sake of the Interest. The Latin text reads: jura sibi homines
utilitate sanxisse.
12. CLPB, 24 = DJPC, 11.
368 History of Philosophy Quarterly

13. CLPB, 24 = DJPC, 11: Love, then, is twofold: love for oneself and love
for others. In the former aspect it is known as desire; in the latter, as friendli-
ness. The Latin text reads: Duplex itaque est amor, sui et alterius, quorum
ille cupidinis, hic amicitiae dicitur.
14. RWP, 1:79 = DJBP, 7.
15. RWP, 1:85 = DJBP, 9.
16. Cf. Richard Tuck, Grotius, Carneades, and Hobbes, Grotiana 4 (1983):
53. Cf. also Tuck, Grotius and Selden, 507; Knud Haakonssen, Hugo Grotius
and the History of Political Thought, Political Theory 13 (1985): 249; J. B.
Schneewind, The Invention of Autonomy: A History of Modern Moral Philoso-
phy (Cambridge: Cambridge University Press, 1998), 7172; J. W. Gough, The
Social Contract: A Critical Study of Its Development (Oxford: At the Clarendon
Press, 1967), 8081; and Werner Schneiders, Naturrecht und Liebesethik: zur
Geschichte der praktischen Philosophie im Hinblick auf Christian Thomasius
(New York: Olms, 1971), 7072.
17. CLPB, 24 = DJPC, 11: This manifestation of love [sc., friendship] burns
most brightly in man, as in one who is particularly endowed not only with the
affections shared in common with other creatures but also with the sovereign
attribute of reason.
18. CLPB, 27 = DJPC, 1314: Ex regula igitur prima et secunda leges duae
procedunt de bono alieno, quae prioribus de bono suo respondent, easque justo
limite circumscribunt. Una: Ne quis alterum laedat; Altera: Ne quis occupet
alteri occuputa.
19. CLPB, 315 = DJPC, 214.
20. CLPB, 320 = DJPC, 217.
21. CLPB, 315 = DJPC, 214.
22. Grotius quotes in RWP, 2:421 = DJBP, 186, and in CLPB, 318 = DJPC,
21617, a similar example suggested by Seneca (On Benefits, VII, xii) and Cicero
(On Duties, I, vii, 21).
23. CLPB, 317 = DJPC, 216: For there are some things which are consumed
by use [usus in abusu consist], either in the sense that they are converted into
the very substance of the user [conversae in substantiam utentis] and there-
fore admit of no further use, or else in the sense that they are rendered less
fit for additional service by the fact that they have once been made to serve.
Cf. Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume
(Oxford: Clarendon Press, 1991), 1113; and Benjamin Straumann, Hugo Gro-
tius und die Antike: Rmisches Recht und rmische Ethik im frhneuzeitlichen
Naturrecht (Zurique: Nomos, 2007), 6869.
24. CLPB, 317 = DJPC, 216: For the essential characteristic of private
property is the fact that it belongs to a given individual in such a way as to be
incapable of belonging to any other individual.
25. CLPB, 316 = DJPC, 216.
 hugo grotius, contractualism, and private property 369

26. RWP, 2: 421 = DJBP, 186: From hence it was, that every Man converted
what he would to his own Use, and consumed whatever was to be consumed; and
such a Use of the Right common to all Men did at that Time supply the Place
of Property. The Latin text reads: Hinc factum ut statim quisque hominum,
ad suos usus arripere posset quod valet, et quae consumi poterant consumere.
Ac talis usus universalis juris erat tum vice proprietatis.
27. CLPB, 23 = DJPC, 11: Some of these things, indeed, are necessary to
being, while others are necessary only to well-being; or, one might say that they
relate respectively to safety and to comfort. The Latin text reads: Necessaria
autem sunt alia ut quid sit, alia ut cui bene sit: incolumitatis et commoditatis
dicere possumus. See also RWP, 2:426 = DJBP, 189.
28. CLPB, 317 = DJPC, 216: Accordingly, it very soon became apparent,
in regard to articles of the first class (for example, food and drink), that a cer-
tain form of private property was inseparable from use. ... This basic concept
was later extended by a logical process to include articles of the second class,
such as clothing and various other things capable of being moved or of moving
themselves. The Latin text reads: in rebus prioris generis, ut cibo et potu,
proprietas statim quaedam ab usu non sejuncta emicuit. ... quod deinde ad
res posterioris generis, vestes puta et res mobiles alias aut se moventes, ratione
quadam productum est.
29. CLPB, 317 = DJPC, 216.
30. CLPB, 316 = DJPC, 215: For in the eyes of nature no distinctions of
ownership were discernible. The Latin text reads: Neque enim potuit natura
dominos distinguere.
31. CLPB, 318 = DJPC, 216.
32. CLPB, 31819 = DJPC, 217: This occupancy must be continuous, how-
ever, in the case of things that resist possession, such as wild beasts. In other
cases, the only requisite is that the status of possession initiated by a physical
act shall be continued mentally. The Latin text reads: Occupatio autem haec
in his rebus, quae possessioni renituntur, ut sunt ferae bestiae, perpetua esse
debet, in aliis sufficit corpore coeptam possessionem animo retineri.
33. DJPC, 217.
34. John Ruggie, Multilateralism: The Anatomy of an Institution, Interna-
tional Organization 46 (1992): 575. See also Anthony Pagden, Human Rights,
Natural Rights, and Europes Imperial Legacy, Political Theory 31 (2003):
18283.
35. In RWP, 2:424 = DJBP, 188, Grotius refers to agriculture as one of the
earliest forms of cooperative work.
36. John Searle, Social Ontology and the Philosophy of Society, in On
the Nature of Social and Institutional Reality, ed. Eerik Lagerspetz, Heikki
Ikheimo, and Jussi Kotkavirta (Jyvskyl, Finland: SoPhi, 2001), 30. And
on the same page: This line of stones, which is all that is left of the wall, now
counts as a boundary. It now has a deontic status, it now has a form of power,
370 History of Philosophy Quarterly

which it exercises not in virtue of its physical structure, but in virtue of the as-
signment of function. See also John Searle, The Construction of Social Reality
(London: Penguin Books, 1995), 3940; and John Searle, Mind, Language and
Society: Doing Philosophy in the Real World (London: Weidenfeld & Nicolson,
1999), 12526.
37. Searle, Construction of Social Reality, 39.
38. RWP, 2:426 = DJBP, 189.
39. Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights,
Natural Law and Church Law, 11501625 (Atlanta: Scholar Press, 1997), 331.
Reinhard Brandt, Eigentumstheorien von Grotius bis Kant (Stuttgart: From-
mann & Holzboog, 1974), 36, speaks in like manner of a gewisse Logik (certain
logic).
40. Cf. DJPC, 317. Richard Hakluyts more literal translation in Hugo Gro-
tius, The Free Sea, trans. Richard Hakluyt, ed. David Armitage (Indianapolis,
IN: Liberty Fund, 2004), 22, reads by a certain reason.
41. John Salter, Hugo Grotius: Property and Consent, Political Theory 29
(2001): 544: The transition to property right was a gradual extension of the
duty to abstain, brought about by reason and decision.
42. Ibid., 545:
Occupation must always begin with an act of seizure, that is, with physical
attachment, or connection of body with body. But with respect to those things
that are seized, but not immediately consumed, it must be decided (placuit)
how long, and under what conditions, ownership is to continue. ... Grotius
agrees that theses things belong to whoever has appropriated them, but he
asks the question When do they stop being his? His answer is that for most
things, it is enough that after the initial act of seizure, the intention to possess
is maintained, for example, by the erection of buildings or some determina-
tion of boundaries, such as fencing in.
43. Ibid., 554, n34. Cf. Hakluyts more literal translation in Grotius, The
Free Sea, 23: in other things it sufficeth that a corporeal possession began be
retained in the mind.
44. Cf. Salter, Property and Consent, 546. Cf. also Pauline C. Westerman,
The Disintegration of Natural Law Theory: Aquinas to Finnis (Leiden: Brill,
1998), 16667.
45. CLPB, 36 = DJPC, 1920.
46. Ibid.
47. CLPB, 318 = DJPC, 216.
48. CLPB, 319 = DJPC, 217: Celebratum post haec, ut Hermogenianus
indicat, commercium. ... Eodem

autem tempore et respublicae in
stitui coepe-
runt.
 hugo grotius, contractualism, and private property 371

49. Paul Ottenwlder, Zur Naturrechtslehre des Hugo Grotius (Tubingen:

J.C.B. Mohr, 1950), 70, argues that Grotius is the actual father of contract
theory as theory on the origin of private property. See also Benjamin Straumann,
Hugo Grotius und die Antike, 69; Richard Schalter, Private Property: The History
of an Idea (London: George Allen & Unwin, 1951), 12931.
50. RWP, 2:434 = DJBP 192. The Latin text reads: in gravissima necessitate
reviviscere ius illud pristinum rebus utendi tamquam si communes mansissent;
quia in omnibus legibus humanis, ac proinde et in lege dominii, summa illa
necessitas videtur excepta.
51. RWP, 2:43435 = DJBP, 193.
52. RWP, 1:138 = DJBP, 31.
53. Tuck, Grotius, Carneades, and Hobbes, 52. See also Tuck, The Rights
of War and Peace, 102; Westerman, The Disintegration of Natural Law Theory,
137 and 168; and J. B. Schneewind, Moral Philosophy from Montaigne to Kant:
An Anthology (Cambridge: Cambridge University Press, 1990), 1:89.
54. Jeremy Bentham, Pannomial Fragments, in The Works of Jeremy
Bentham, ed. John Bowring (New York: Russell & Russell, 1962), 3:221; italics
are in Bentham. See also Jeremy Bentham, Anarchical Fallacies, in Nonsense
upon Stilts: Bentham, Burke and Marx on the Rights of the Man, ed. J. Waldron
(London: Metheuen, 1987), 53.
55. I am grateful to Peter Stemmer for comments on an earlier draft of this
paper and to Humboldt Foundation for the financial support at the University
of Konstanz (2007/2008).
x