Abstract
AbstractHugo Grotius, the seventeenth century Dutch scholar, is most famous for his contributions to modern international law, particularly the law of the free seas. Yet, he has had just as lasting an effect on the formation of modern contract doctrine, originating in the same text that produced his maritime law. Grotius instigates a change in the theological anthropology implicit in late scholastic contract doctrine by importing a radical sense of God-given, unfettered freedom. This he calls ‘natural liberty’. He thereby renders contractual freedom freer, as it is now liberated: from its divine telos as part of man’s salvation; from the constraints of moral philosophy; and from the need of any ultimate end. Yet, he does not set the will completely at liberty in its contractual relations; certain formal and moral constraints remain. But it is no longer required that, in order to be well used, contractual liberty must be busy building the New Jerusalem. For, its divine purposes are now more mundane: peace and order on earth, beginning with oneself. For the moral theologians who developed ‘freedom of contract’, our natural promissory powers, as manifested in contractual relations, were ordained as means contributing to our salvation. For Grotius, they had been reduced to the providential means of our survival.The great sense of natural liberty that Grotius vested in the freedom of contract would eventually open the door to radical contractual liberalization of the kind that was seen in North Atlantic nations in the nineteenth century, the primary causes of which are still disputed by scholars. In this chapter I argue that modern contract doctrine has never lost its theology of the radically free will since Grotius installed it there. If true, this theology of the will does some work in explaining the persistent liberal tendency in modern law and in modern economics (albeit not in economic theory), reducing the need to resort to naturalistic, materialistic, or ideological accounts.
Highlights
Grotius instigates a change in the theological anthropology implicit in late scholastic contract doctrine by importing a radical sense of God-given, unfettered freedom
Hugo de Groot, the seventeenth century Dutch scholar better known by the Latin name Grotius, instigates a change in the theological anthropology implicit in late scholastic contract doctrine
To understand what that means for contractual liberalization, it must be remembered that the theologians who provided much of the apparatus of modern contract doctrine were more concerned with the salvation of souls than with economics or history or law or anything else sub luna.[8]
Summary
In describing the re-emergence of ‘freedom of contract’ as the result of the long development of contract doctrine by the late scholastics, Wim Decock says contract became ‘the instrument of a self-conscious dominus who [could] decide to do whatever he wants with his private property’.1. Hugo de Groot, the seventeenth century Dutch scholar better known by the Latin name Grotius, instigates a change in the theological anthropology implicit in late scholastic contract doctrine He imports a radical sense of God- given, unfettered freedom. To understand what that means for contractual liberalization, it must be remembered that the theologians who provided much of the apparatus of modern contract doctrine were more concerned with the salvation of souls than with economics or history or law or anything else sub luna.[8]. They were not shy to enter into every area of human life where morals or God were wont to go. Manage to present both a notion of the meaning of the free will and clearly indicate its centrality to his contract doctrine
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