‘God Created Man αύτεξούσιον’: Grotius’s Theological Anthropology and Modern Contract Doctrine

Abstract

Hugo 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.