Conceptions of War

For all the lack of focus on punishment in Grotius, the topic is remarkably central to the structure of his argument in DJB. He begins the central book (Book II) by outlining two primary justifications for war: self-defense (or the recovery of property), and punishment.Footnote ¹³ The remainder of the book treats these topics in turn. A brief study of his treatment of defensive war will help to lay the groundwork for—and provide an instructive contrast to—his treatise on punishment.

The United Nations Charter acknowledges state sovereignty as the fundamental premise of international relations. As a result, it permits its members to fight only once they have been attacked, or to assist another under such attack. The invaded state is entitled to resist the aggression, and also to recapture the territory unjustly annexed by the aggressor. Hence, only wars of defense can be legitimate. This approach is characteristic of liberal thought. For example, Immanuel Kant's doctrine of right provides wide license for self-defense while absolutely prohibiting punishment outside the juridical confines of the republican state.Footnote ¹⁴ More recently, John Rawls argues that only defensive actions can confer a just title to war.Footnote ¹⁵ In legal terms, one might say that the aggressor incurs a debt to the offended state, which can only be repaid by returning the conquered territory to its prewar status. Hence, such a defensive war is analogous to repayment of debt in private law.

It cannot be denied that Grotius's treatment of defensive war demonstrates many of the characteristics commonly attributed to him. First, its justification arises from an offense against the claim-right of an individual nation to be sovereign over a particular territory. That nation's status of sovereignty is absolute; it does not depend on exercising good government over that territory. Second, the matter in question is a physical, tangible piece of territory. It is a possession that exists in the material world. Third, the reasoning necessary to determine both the violation of justice and its remedy is amenable to simple calculation: justice obtains when the territory returned equals the territory taken. The determination of injustice automatically reveals the condition that must obtain in order to restore justice. Fourth, justice in defensive war ultimately looks backward rather than forward. It seeks to return to a previous condition, in which ownership of the territory rested with the original ruler, rather than a creative new solution. Fifth, justice can be fully accomplished in defensive (or restitutionary) war, because it is possible to return the territory unjustly annexed. There is no ambiguity about justice: it is a status that either fully obtains or does not obtain at all. Finally, this right confers a status on each participant, and the course of action required to bring about justice is clear, requiring little prudential judgment. Grotius's approach to war thus far resembles the common rights-based portrait of his political theory. Indeed, Villey's influential reading of Grotius draws exclusively on this section of DJB, without a single citation from the remaining half of the work.

Punitive War

While self-defense and restitution are undoubtedly valid titles to war, such efforts do little to change the aggressor's acquisitive desires or restrain the aggressor from future offenses. Nor do they allay its neighbors' fear and mistrust, or provide them with any lasting security. Only the possession of territory has been altered; the threat of future expansion is unaltered and the absence of trust remains. Thus, as with a burglar, it may be necessary to invoke the criminal-law paradigm: the aggressor must also be punished. Punitive war has generally been neglected in the post–World War II secular rediscovery of just war theory. However, calls to punish the Assad regime in Syria for its alleged use of chemical weapons show that the concept remains perpetually timely. Indeed, the just war tradition has consistently emphasized punishment as a valid cause of war.Footnote ¹⁶ Grotius follows squarely in this tradition.

Grotius begins his section on punitive war in DJB with a lengthy chapter on the philosophical foundations of criminal punishment. In this disquisition, he identifies three specific purposes of punishment: reformation of the criminal; deterrence of the criminal (or others in the community) from reoffending; and satisfaction, which—according to Grotius—reasserts the glory and integrity of the public institutions whose dignity the criminal act has violated.Footnote ¹⁷ Restitution is conspicuously absent in this section, which helps to show the contrast with the private law paradigm of defensive war.Footnote ¹⁸

Punitive war begins in the same way as defensive war: with the punisher possessing a right to punish. Similarly, the right can only arise when another person (or nation) has clearly offended against the law, whether positive or natural. However, beyond this initial commonality, Grotius departs from the first characteristic of defensive war: the nation possessing a right to punish does not seek a tangible possession, and does not even hold a claim-right. Indeed, while the right to wage defensive war confers self-interested benefits on the holder, the right to wage punitive war confers only a difficult duty—as any sensitive law enforcement official (or parent) is aware. Thus, punishment fundamentally differs from restitution, because it does not confer external benefits, and it may indeed increase the obligations of the person holding the right to punish.Footnote ¹⁹ Grotius's conception of a right goes beyond an individual claim on a possession.

Likewise, in contrast to the second element of defensive war, punishment is not exercised in one's own self-interest, but on behalf of the entire community. This can be seen in domestic criminal proceedings, where it is the state (“the people,” for example) that brings the charges and carries out the punishment. On its most essential level, a crime is committed against the community. Thus, the existence of punitive war emphasizes the fundamentally public nature of Grotius's political thought. Punishment does not exist to increase the stock of possessions of individuals. Rather, it exists to promote the well-being of the social realm—of which the safeguarding of private property is only one element.

Furthermore, unlike the third characteristic of defensive war, the initial determination of injustice in punitive war does not automatically provide a remedy. When an aggressor acts unjustly by taking territory, defensive war brings about justice through an equal and opposite reaction. In other words, it looks backward to restore an exact condition that obtained in the past. However, in punishment, such calculative reasoning and backward-looking orientation is inadequate. The criminal act cannot simply be undone; it is no longer possible to return to the original condition. Indeed, it would be strange if a judge should rule that justice would be served by providing the victim with legal immunity to carry out an equal crime against the perpetrator. Such a simple calculation would, in the memorable words of Tevye in Fiddler on the Roof, leave everyone blind and toothless. This reciprocal action—which, in restitution, is the essence of justice—would, in punishment, undermine the very spirit of justice.

Thus, in contrast to the fourth characteristic of restitution, punishment requires the requisite wisdom to ascertain the course of action that would best conduce to the future common good. This can take the form of reformation of the criminal, deterrence of others from committing the same crime, and/or emphasizing the dignity of the law and its sovereign overseer(s). As Grotius says, “All punishment aims at the common good, and particularly at the preservation of order and deterrence.”Footnote ²⁰ Thus, rather than looking backward, punishment instead looks forward to help bring about a future that can never be predicted with precision. Likewise, it requires the use of imaginative reasoning to visualize a more just future in which nations are less inclined to offend against the common good.

As a result, in contrast to the calculative reason associated with restitution, the determination of how to exercise punishment is a “difficult and obscure” topic.Footnote ²¹ Unlike the fifth component of defensive war, justice in punishment can never be perfectly fulfilled. In punishment, authorities cannot simply follow the letter of the law, because such universally applicable dictates of calculative reason are inadequate to the situation at hand. Rather, punishment must weigh nondeductive considerations of an individual's context. Thus, justice cannot be fully determined in advance of particular situations. For instance, a criminal who broke the law in order to avoid “death, imprisonment, pain, or extreme poverty” should generally be judged in light of these extenuating circumstances.Footnote ²² Indeed, one must take care to “estimate the desert” of punishment in cases where natural causes largely circumvented the perpetrator's faculty of reason and judgment. In addition to the aforementioned emphasis on imaginative reason, these counsels display Grotius's attention to prudential reason and situational judgment. The necessary virtue of prudence in public officials shows that politics cannot be reduced to a universal science or system that discounts context.Footnote ²³

This analysis of particular circumstances leads to another, more fundamental, consideration of prudential reason in punishment: a discernment of the individual's internal state. Unlike restitution, where a judge needs only a knowledge of external factors, in punishment the authorities must have the wisdom to discern the character of the person. As an example, Grotius distinguishes between the severity of the law broken and the manner in which it was broken. This indicates that the intensity of one's malicious intention is more important than the severity of the damage that resulted, as can be seen in the charge of attempted murder.Footnote ²⁴ Here Grotius directly draws on Aristotle's distinction between “wrongs” and “faults” in the Rhetoric and the Ethics. While an (internal) wrong results in punishment, an (external) fault should bring about only restitution. Indeed, Grotius so highly values this “truly notable” passage of Aristotle that, in the midst of his own work, he translates the entirety of Ethics V.8. Grotius later draws on Aristotle's distinction between “acting wrongly” and “doing that which is unjust,” noting that the former concerns the “doer” but the latter only the “deed.”Footnote ²⁵

Indeed, Grotius does not simply prioritize the intention over the act, but also the even more foundational character from which that intention sprang. He draws a distinction between isolated acts and settled character when he cites Seneca's counsel that “the wise man will remit many penalties; he will save many persons whose character is not sound but is curable.” Here and elsewhere he shows shades of Aristotle's own distinction between vice and mere incontinence. This clearly reveals his understanding that actions flow from character, and that punishment ought to address the latter. Indeed, Grotius later cites a description of punishment as “surgery for the soul.” Like a surgeon, a punisher must have knowledge of what is inside a person.Footnote ²⁶ Thus, Grotius's understanding of prudence is not the modern conception that emphasizes self-preservation and mutual advantage. Instead, it is more akin to Aristotle's understanding of the term, which connotes a discernment of (and action toward) the good of persons with a rational and social nature. Grotius's engagement with Aristotle seems to be more of a substantive acknowledgement than a “public break.”Footnote ²⁷

This emphasis on prudence and personal character provides the final contrast with restitution, and points to the limits of the law. If the deed is contrary to the law, the judge must convict. However, if the doer is innocent of guilt, higher justice would counsel the governor to relax the penalty or even pardon the defendant. While clemency can never be required by strict justice, it is fitting to goodness and moderation, and characteristic of a lofty soul.Footnote ²⁸ The opposite case also illustrates the point. If the penalty for the infraction is relatively small, but the intention of the criminal highly malicious, the public official may punish even more severely than the maximum set out by the law. However, the ruler requires a “worthy reason” to do so; he or she must consider not only the good of the individual, but the whole.Footnote ²⁹ While some situations may call for mercy, in others, clemency might actually be detrimental to the whole. Likewise, a punishing nation must consider whether the expenditure of resources involved in punitive war would compromise the maintenance of order and justice in its own realm. The potential good must still be weighed against the costs. Thus, even the higher good of clemency cannot be arbitrarily exercised; rather, it must be guided by the virtue of prudence.Footnote ³⁰

In addition to directing this punishment toward the reform of the offender, Grotius also emphasizes the character of the punisher. In aiming to deter or reform the offending nation, a punishing nation must display virtue in its exercise of punishment. Punishment cannot follow from the vengeful desires or injured pride of the offended party, which Grotius describes as contrary to reason. Rather, punishment must take its bearings from an other-oriented desire to reform the subject of punishment, or, more broadly, a service to “human society.” Thus, the punishing nation must not punish out of malice. For this reason, Grotius adds a further condition for punitive war: the punisher must be free of the very crime for which it punishes the guilty party. Thus, not only must the punisher aim at the (internal) good of the recipient, but its own internal character must be virtuous.Footnote ³¹

For these reasons—and also, no doubt, the likelihood that all involved parties will have dirty hands—Grotius says that it is more honorable for a third-party state to exercise the punishment.Footnote ³² This reemphasizes the public nature of punishment, because the punisher now has no interest at stake in exercising punishment. The right to wage punitive war derives not from victimhood, but by reference to the “good of mankind in general.”Footnote ³³ Indeed, if victimhood were a requirement, then third-party states would actually be prohibited from punishing. Grotius understandably sees this as theoretically and practically absurd, given that one of the very purposes of civil society is to ensure third-party judges.Footnote ³⁴ Moreover, as with any true punishment, sacrifice is required on the part of the punisher: a nation must put its own soldiers in harm's way.Footnote ³⁵ The same is true of defensive wars on behalf of others, or of humanitarian intervention, to which Grotius devotes a specific chapter.Footnote ³⁶ This reemphasizes the idea that the ‘right’ to punish is not a self-interested possessive right automatically bestowing on its holder a legitimate claim on a tangible commodity. Rather, it is a status that confers a public duty to be exercised on behalf of others, and whose exercise requires virtue.

The necessity of virtue in carrying out punishment shows that, while the mere possession of a right initially seems to confer full freedom of action on its own terms, right-holders are ultimately subject to a higher standard that limits their exercise of these rights. Indeed, after having established the just causes of war, Grotius spends a full chapter exhorting rulers not to charge rashly into war, even if the cause is just.Footnote ³⁷ No one should think that simply because “a right has been adequately established,” that “either war should be waged forthwith, or even that war is permissible in all cases.”Footnote ³⁸ The remainder of the chapter is devoted to exploring such cases. Thus, while possession of a right may be necessary for justice, alone it is insufficient to realize the highest dimension of justice. Indeed, possession of that status leads toward action, which must be guided by a different standard of justice.

Naturally, this counsel of moderation in exercising a right applies not only to the decision to engage in war, but also to the actual prosecution of wars. This is evident throughout Book III of DJB, in which Grotius treats six elements of war according to the the (rather permissive) law of nations (jus gentium), before devoting six more often-overlooked chapters to outlining the guidance of prudence, moderation, and charity.Footnote ³⁹ Having obviously read the former section, Rousseau famously denounced Grotius for permitting soldiers to enslave their captured prisoners of war. Tuck cites a similar Rousseauian criticism as he begins his portrayal of Grotius as apologist for colonial imperialism.Footnote ⁴⁰ Yet in the latter section, Grotius asserts that such indiscriminate subjugation is actually contrary to the virtuous conduct of good men. While all captives who fought for an unjust cause have presumably committed a wrong “deed,” the captor must yet ascertain whether or not the “doer” is truly culpable of criminal wrongdoing. If the individual soldier is not guilty, he is to be released, likely for the quid pro quo ransom that Grotius cites as the common practice of Christian nations. (Such a payment for damages fits with his emphasis on restitution as concerning the deed rather than the doer.) To underscore the point, Grotius publicly laments the fact that so many soldiers become enslaved for having invincibly followed the orders of their rulers, who are the true criminals.Footnote ⁴¹

In the event that the soldier is personally guilty of a crime, the captor's consequent right to punish through enslavement must then be guided by what Grotius here calls “internal justice.”Footnote ⁴² As he does in each of the latter six chapters, Grotius explains in lengthy detail how the virtuous man will treat his slave. In one example, he compares the rule of a slave to the breaking of a horse, which must be done gently. More systematically, Grotius envisions the master's coercive power in much the same way as that of a governor: both may rightly execute a subject only for the most grievous crimes. This similarity between the good exercise of mastership and governorship is pointedly different from Locke's direct contrast between political and despotic rule, the latter of which is defined by the possibility of arbitrary killing. For Grotius, if a master so much as illegitimately breaks the tooth of a slave, he ought to free the slave—not because the slave has a right to freedom, but because the higher guidance of beneficence and virtue ought to guide the master.Footnote ⁴³ Grotius cites an example of this practice in Exodus 21, the exact passage that Locke would later cite as evidence that the Hebrews did not actually permit true slavery, but only a condition of mere “drudgery.” Inasmuch as this Lockean distinction is sound, Grotius actually prohibits slavery.Footnote ⁴⁴

While the example of captives shows how punishment requires prudence and virtue, another example—this time from peaceable international relations—shows that prudence may counsel the complete pardon of a criminal. This is the common practice of diplomatic immunity, a custom for which Grotius was instrumental in developing the modern legal doctrine of quasi extra territorium.Footnote ⁴⁵ If the crimes of diplomats were to be punished by their host countries, their home countries would hesitate to send them in the first place. Consequently, the very institution of diplomacy—so central to a peaceful international society—would likely collapse. International relations would descend into a jungle of animalistic bloodshed, rather than being a venue for peaceful dispute resolution befitting humans of a social nature. Hence, Grotius states that guilty diplomats should simply be returned to their home country, even though doing so may allow them to avoid punishment.Footnote ⁴⁶

Grotius's line of reasoning seems to license the extension of this principle to other areas of war. For instance, any demand during hostilities that the other side be brought to full justice upon conclusion of the war might cause that side to fight to the last man. Only an international political order that allows for the possibility of pardon can provide the grounds on which the losing party will be willing to accept a cessation of hostilities. A punitive war without the possibility of clemency might be a perpetual war of all against all.Footnote ⁴⁷ Thus, an order that demands full punishment is unlikely to produce peace or justice.

This conception of punishment and clemency actually inverts Furukawa's understanding of punishment in Grotius. In his reading, the traditional approach saw punishment as having redemptive value for the next life, and thus could never be too heavy-handed in this one. Hence, only a modern break with tradition could account for Grotius's moderate and humane approach to punishment.Footnote ⁴⁸ However, a modern approach grounded in pure reason is more likely to exact punishment as a mathematical equivalent to the crime than a traditional approach that uses punishment to help others fulfill their distinctively human nature. Hence, if the right that confers a legitimate title to punish is genuinely modern, it is precisely this right that condones the very harshness of “eye for an eye” punishment. It is rather Grotius's teleological conception of punishment that allows him to counsel a more moderate approach. Rights-based justice opens wide the door to punishment; traditional moral restraints narrow the opening.

Expletive Justice

This examination of punishment presents an alternative portrait of Grotius, by drawing out themes that are implicit in his approach to war. However, it is not necessary to rely only on implicit themes. An examination of Grotius's exposition of justice also reveals two explicit categories. The first category maps surprisingly well onto defensive war and the rights-based status necessary to wage punitive war. The second is coextensive with the actual practice of punitive war.

Throughout his corpus, Grotius begins his legal and political works by defining and outlining the concept of justice. DJB contains the fullest of these frameworks. When Grotius outlines what is meant by jus, he briefly defines it first in the “objective” sense as “that which is not unjust.” He quickly moves on to a more substantive exposition in which he likens jus to a body, and divides it into “faculties” and “aptitudes.” Faculties, which he terms “expletive” justice, include the classic definition of justice as a right to one's own (suum). Aptitudes, which he calls “attributive” justice, flow from virtues such as generosity, compassion, and foresight in governing.Footnote ⁴⁹ Expletive justice includes what he will subsequently refer to as the “strict” sense of jus, or “jus properly so called.” (This terminology likely accounts both for the lack of attention to the categories of expletive and attributive justice, as well as the assumption that expletive justice is Grotius's only true sense of justice.) His definition of “what is due” calls to mind the idea of a possessive right.Footnote ⁵⁰ The possessive nature of this framework produces an orientation point that starts from the individual who benefits.Footnote ⁵¹ Because expletive justice begins and ends with the individual, it is not concerned with the common good per se, but only a common good that is ultimately reducible to the aggregate rights of individuals.

Likewise, in regularly describing expletive justice as “strict” justice, Grotius indicates that it does not admit of exceptions due to circumstances, or adjustments based on the individuals involved.Footnote ⁵² Because of its indifference to proportion or modification based on the good of others, such a right has a radical quality. It confers an absolute freedom of action, constrained only by the possible interference of another (radical) right. For instance, Grotius admits that, according to expletive justice, one may take the life of a thief in order to defend one's own property.Footnote ⁵³ Expletive justice thus appears to be the realm of universal rules, such as the basic individual rights to life and property. Even the corresponding duties of restitution fit into expletive justice, because the form of the normative content derives from its strict and inflexible laws of reason. Positive law also fits into expletive justice, as it arises from the mutual promises initially made in the formation of the state and subsequently guaranteed by the expletive duty to fulfill such agreements. Indeed, Grotius asserts that “legal rights are the concern of expletive justice.”Footnote ⁵⁴

As a result, only calculative or technical skills are needed to bring about expletive justice. Once one has determined the facts of the situation, the remedy is universally clear, because it is entirely comparable to other situations. The differences in context are irrelevant, and the virtue of prudence is unnecessary. As Grotius says, the determination of expletive justice can be undertaken along the lines of mathematics, not requiring great imagination or creativity.Footnote ⁵⁵ A single dimension of reason is adequate to ascertain and achieve justice. Expletive justice does not appear to admit of qualitative or multidimensional considerations.

The one-dimensional nature and the calculative reason associated with expletive justice also appear to eliminate any focus on internal intention. Expletive justice does not depend on the character of the person. Rather, it is achieved when a possessive right is transferred. This further confirms its place as the locus of private law, with its focus on tangible external goods as its currency. Thus, in its indifference to internal character, expletive justice corresponds to the aforementioned justice of deeds, rather than the justice of the doer. Grotius describes how two opposing actors (“doers”) may both be free from internal wrong, yet—as with mutually exclusive possessions—only one can possess the “moral quality,” or strict right.Footnote ⁵⁶ Thus, expletive justice concerns the outcome of the action, and its possessive implications, rather than the internal character of the person.

Grotius's choice of terms illustrates another crucial aspect of expletive justice. The term “expletive” is a cognate of the Latin word explere, which is variously translated as “to complete, fulfill, discharge, satisfy, or perfect.” The last of these may be particularly appropriate, as some recent observers have understood expletive justice as the realm of perfect rights and duties.Footnote ⁵⁷ It sets out clear expectations and standards of performance. Once achieved, all those involved can utter the words “case closed” without reservation. Thus, expletive justice can be fully and perfectly implemented.Footnote ⁵⁸

The possibility of full satisfaction is consistent with Grotius's view of strict expletive justice as setting forth those only things that are not unjust, as seen in his initial characterization of jus as “that which is not unjust.”Footnote ⁵⁹ Thus, this “jus strictly so called” does not require positive action. Rather, it is a condition that obtains in the absence of infractions. Expletive justice outlines the bounds of licit action by proscribing some acts. However, within those bounds, it is silent. The one who acts without violating expletive justice is not necessarily described as a good or worthy person, but merely “not guilty.” Thus, on its own, expletive justice does not call for positive action, but merely prohibits negative actions.

Expletive justice thus provides a basic standard of justice that does not rely on a thick conception of the person grounded in a transcendent conception of virtue (such as a Platonic form, the precepts of Yahweh, or the person of Christ). This provides a basis for universal human rights, respect for which can legitimately be demanded of all people. Expletive justice also facilitates the development of a science of law, whose black-and-white parameters are clear to all. It need not consider internal factors of motivation and intent, eliminating the need for judgments that are always open to dispute. Likewise, because expletive justice demands only restraint (rather than positive action), all should be capable of meeting its mandate. None can claim that such requirements would violate individual conscience.

In light of these characteristics, the private law dealing with property claims would seem to be the quintessential realm of expletive justice, along with its defensive war analogue. This is clear from each of the characteristics of expletive justice. For instance, it is true both in the determination of liability and the remedy. Indeed, the determination of liability (or lack thereof) already contains within itself the remedy. Here, one typically seeks a transfer of external possessions, either of the original item, or of a quantitatively determined equivalent (often cash). Thus, there is little ambiguity about whether a debt has been fully repaid. It is a binary, one-dimensional condition with no gray areas, rather than a qualitative judgment between greater and lesser goods. As a result, its nature is final and thus static; once implemented, justice obtains perfectly, and there is nothing more to be done. Nor does it matter whether the person paying the restitution is a good person freely acting to realize the spirit of the law, or a bad person acting against their will simply to avoid imprisonment. The two acts are identical, as either one fulfills expletive justice.

While matters relating to ownership and credit form the bulk of expletive justice, Grotius also includes the requirement of punishing offenses. Thus, expletive justice plays a necessary role in punishment, by conferring on the punisher a right over the one who has broken the law. This is a precondition for punishment.Footnote ⁶⁰ Nonetheless, Grotius immediately encounters some theoretical difficulties attempting to situate punishment entirely within expletive justice. This arises from the aforementioned fact that the right to punish is not a claim-right. Nor would one say that the criminal has a right to be punished. Rather, one might say that the rightness of the human situation calls for punishment, or that the offender is worthy of punishment. To foreshadow the language of attributive justice, it is even more appropriate to say that it is fitting that someone be punished.Footnote ⁶¹

In addition to the theoretical difficulty of viewing punishment solely under expletive justice, there is also what might be termed a moral difficulty. Because expletive justice is a status, the right it confers is not limited by prudential or situational considerations. For example, in the realm of debts, expletive justice confers on the creditor a full claim on the amount owing. There is a certain logic to this right; indeed, the best way to bring about justice is to take the full amount from the debtor. However, the full exercise of expletive justice in criminal punishment is more unsettling, because the authority is not over a possession but over the actual person who has committed the wrong.Footnote ⁶² For instance, in the case of manslaughter, expletive justice would seem to be unlimited, requiring the criminal's life. Individuals would have no second chances to reform themselves, and no brush with the law could serve a forward-looking, educative or redemptive purpose. As long as the punishment was carried out by those with the right to punish, it would be just in the strict sense. Such draconian and possibly arbitrary punishment would undoubtedly be superior to an anarchic condition without any punishment; after all, law-abiding citizens would now be protected from criminals. The restriction of punishment to the governing authorities that hold the expletive right to punish would also ensure a greater sense of order. Nonetheless, in contrast to repayment of debt, prosecution of the person to the full would fail to achieve the ultimate purposes of punishment. The punisher would have a natural right to punish as he or she did, but would not be in an ‘objectively’ right condition traditionally known as natural Right.

The correlation to punitive war is clear. If one nation commits offenses against natural justice, expletive justice confers on those nations not guilty of the same (or similar) offenses the unlimited right to wage punitive war.Footnote ⁶³ Furthermore, if the war has a just cause, there are very few restrictions on how the war can be waged or on the consequent assumption of sovereignty over the offending nation, or on the severity of the punishment applied.Footnote ⁶⁴ Thus, although expletive justice is necessary to give the punisher the just authority to punish, it is ineffective in determining a good punishment. A person on whom expletive justice has conferred a status as just punisher must be governed in that exercise of punishment by the higher standard of attributive justice.

Attributive Justice

It is no wonder, then, that after outlining expletive justice, Grotius's conceptual outline at the beginning of Book I quickly turns to attributive justice. His understanding of attributive justice includes many characteristics that distinguish it from the common rights-based portrayal of Grotius grounded in expletive justice. In contrast to expletive justice, attributive justice (1) is active, not static; (2) is imperfect, not perfect; (3) looks ahead to the future, not back to the past; (4) uses prudential (not calculative) reasoning; (5) is concerned with the internal intention of persons (rather than external outcomes); (6) is situational, not universal; and (7) is ultimately directed toward a positive conception of the common good that includes the exercise of higher virtues. Thus, attributive justice reveals Grotius's opening of a conceptual space for the themes implicit in his understanding of punishment.

Grotius highlights the active character of attributive justice from the beginning, when he describes it as the realm of “fitness,” or “aptitudes,” rather than “faculties.”Footnote ⁶⁵ It is not automatically present at birth, like the basic physical faculties of hearing or touch. Rather, it resides in the character of the person, and requires the exercise of human will and virtue in order to be developed (and subsequently instantiated). This can be seen when Grotius links the term “aptitude” to the Greek word axian. Aristotle uses this word in reference to ascertaining the virtue or dignity of a person and ascribing the appropriate societal honor.Footnote ⁶⁶ This virtue is not automatic; people must choose to develop their capacities for it. Thus, rather than being a static reality that inheres in the “objective” structure of the universe, it is a dynamic capability that manifests itself in willed human action.

The dynamic nature of attributive justice leads to a second contrast to expletive justice: any demand for perfection is inadmissible. As Grotius says, while expletive justice attaches to a perfect moral faculty, an aptitude refers to one that is imperfect.Footnote ⁶⁷ His terminology is consistent with this claim. The verb attribuere, from which justitia attributrix is derived, is often used in conjunction with the activity of allotting or assigning. This calls to mind the judgment involved in exercising one's responsibility to assign shares of duties or benefits. More than once, Grotius uses the example of choosing the best person to carry out a particular role in public life, such as filling the position of a magistrate.Footnote ⁶⁸ In such a case, there can be no clear, universal instruction inherent in the nature of things. No applicant, not even the best qualified, can ever have a strict right to the position. Rather, it is fitting that the job be assigned to the most deserving candidate. Poor judgment in this decision would not violate expletive justice, but it would offend against attributive justice.Footnote ⁶⁹

This imperfect character is particularly salient in light of the fact that such an appointment is a beginning, not an end. The true test of the appointment is in the future performance of the role. In order to make a perfect appointment, one would—at minimum—require the ability to foretell the future with perfect clarity. Even then, however, the term “perfect” could only be applied to something that has been finished—a condition that never obtains in this world. Contrary to common colloquial usage, no candidate can ever really be perfect for a job. Likewise, attributive justice cannot admit of perfection, because it would connote a finality that would close off the possibility of human action in that matter. Only a static form of justice could ever be complete or perfect. Rather, because it is performatively instantiated, attributive justice requires a creative imagination that looks forward toward a greater good. It is no wonder that one of Grotius's first descriptions of attributive justice is “foresight in matters of government.”Footnote ⁷⁰

Thus, the situations governed by attributive justice are not those in which only one course of action is right and all others wrong. Rather, these situations require prudential judgment of better and worse possibilities, to which Grotius devotes an entire chapter in DJB. Citing Aristotle, he states that in order to rightly consider competing arguments, which may refer to the judgment of a mean between extremes, one must “rightly mould their practical judgment.”Footnote ⁷¹ This is because “in moral questions, . . . even trifling circumstances alter the substance.” In other words, one must have cultivated the requisite aptitude to exercise this prudential judgment well. Mathematical reasoning may be appropriate for expletive justice, because it deals with forms, of which there can be only one ideal and no intermediate stages. However, it is inadequate to the complex moral judgment and imagination involved in attributive justice. Grotius concludes by citing Aristotle's well-known maxim that “certainty is not to be found in moral questions in the same degree as in mathematical science.”Footnote ⁷² The finite perfection of arithmetic is an inadequate guide to the infinite possibilities of embodied human experience.

This focus on the lived world also points to the limits of the science of law, which looks backward to objectively determine deviation or conformity to the law. Once the monkey wrench of crime is thrown into the machinery of law, there is no way for the law to move forward other than to return to the precriminal past. On the contrary, a politics informed by attributive justice need not try to carry on as though the offense never happened. It is able to look forward to redeem the past, including the subsequent reality shaped by the offense, and to build a new future.Footnote ⁷³ This may involve pardoning the criminal (such as a diplomat), even in the face of objective wrongdoing.Footnote ⁷⁴ However, this subjective character of attributive justice need not bring the connotations of relativism that often accompany the term. Indeed, the subject is ontologically higher than any mere object and can never be reduced to such.Footnote ⁷⁵ Accordingly, attributive justice corresponds to an overarching sense of rightness covering the person and his or her relationship to the entire moral universe, not simply the status of a person over a possession. This reflects the fact that attributive justice does not blindly follow from (‘objective’) nature, but is instead—to use Grotius's own formulation—“in harmony with nature.”Footnote ⁷⁶ This imagery suggests that it is distinct from nature, yet consonant with it. What is more, attributive justice actually builds upon and enriches nature, adding another dimension.

Indeed, as relating to the practice of politics rather than the science of law, Grotius consistently associates attributive justice with the realm of positive virtue. Expletive justice, as the strict sense of justice, obtains when one is merely innocent. It merely requires following the law, rather than exercising virtues.Footnote ⁷⁷ However, Grotius states that “honour may forbid what law permits.”Footnote ⁷⁸ On its own, the law cannot reach to concerns of what is considered decent or honorable—the latter a term that Grotius regularly uses in contrast to expletive justice. However, the fullness of right by nature “holds in view not only the dictates of expletive justice . . . but also actions exemplifying other virtues, such as self-mastery, bravery, and prudence.”Footnote ⁷⁹ These statements echo his initial characterization of attributive justice as being associated with other-oriented virtues like generosity and compassion.Footnote ⁸⁰ As the wider sense of justice, attributive justice does not simply occur in the absence of injustice, but resides in the positive actions of virtue.

Because such positive actions cannot be virtuous unless they are freely undertaken, coercing them through the laws of the state would seem to defeat the purpose. By thus reducing strict (legal) justice to the avoidance of negative actions, Grotius opens up a large sphere of personal liberties protected by expletive justice. Yet he consistently reminds the reader that this space remains governed by higher norms.Footnote ⁸¹ Indeed, the very formal character of expletive justice itself points to the subsequent decision of how to exercise the right. Because expletive justice is formal rather than substantive, it does not conflict with a substantive act enjoined by attributive justice. One might say that attributive justice fulfills expletive justice without overturning it. To return to Grotius's metaphor, this permits a harmony between the two types of justice.

Such harmony presumes, of course, that one already possesses the right conferred by expletive justice. One cannot act attributively without meeting the precondition. Grotius cites the example of Xenophon's Education of Cyrus, in which a larger boy forcibly exchanges his own small tunic with a small boy possessing a larger one. While the attributive notion of fit would naturally endorse the outcome of this ‘exchange,’ Grotius argues that the taking of another's property is a procedural violation of expletive justice. Hence, it is legally and morally unjustifiable.Footnote ⁸² Many observers have interpreted this statement as a rejection of Aristotle's concept of distributive (“geometric”) justice. Yet while Grotius condemns this theft of private property—surely an uncontroversial stance—his notion of attributive justice still seems to recommend that the smaller boy voluntarily offer such an exchange. Should the boy do so, a governor guided by attributive justice might then choose to publicly recognize the smaller boy's sacrifice. Yet such an honor would be a free gift of the ruler; the smaller boy could not demand it as a strict right. If he could, he might then begin to carry out similar beneficent deeds out of sheer desire for public reward, thus ceasing to be a virtuous doer.

Because expletive justice is a necessary precondition, many commentators have taken this “strict” justice as rendering inferior all other forms of justice. Yet if attributive justice is not justice in the strict sense, that is because it is a superior sense of justice. Grotius plainly states that one's duty is “sometimes taken strictly . . . by expletive Justice,” and sometimes “in its larger sense.”Footnote ⁸³ He later asserts that the term “ought” has two meanings, the broader of which corresponds to attributive justice.Footnote ⁸⁴ This helps to explain his use of the “more extended meaning” of justice in his initial discussion of attributive justice, especially in contrast to the “strict sense” of expletive justice.Footnote ⁸⁵

Hence, the mere fulfillment of expletive justice is not the end of the story; political life may yet require the “natural fitness” of attributive justice.Footnote ⁸⁶ While attributive norms are nonjusticiable and are thus outside the law (in the strict sense), they remain relevant to public life. It is true that nobody is compelled by expletive justice to volunteer or give private charity; in fact, all are within their rights to refuse. Yet a society without either is unlikely to have social and political harmony. Few would feel comfortable in a society of devils, even if those devils should be rational enough to avoid violating expletive justice. Reciprocally, a government that exercised its expletive right of punishment to the full would likely fail to engender loyalty and public-spiritedness—sentiments that might curtail the devils' mischief should their rationality momentarily fail. On the contrary, a ruler who enforced the law with prudence and moderation would more likely generate allegiance to the commonweal. Such a governmental example of attributive justice would actually help to promote adherence to expletive justice among the governed. Grotius's solid grounding for rights claims may actually justify the frequency of his systematic exhortations to right-holders to exercise them in other-oriented fashion.

This relationship between the two categories is particularly well illustrated in the aforementioned practice of diplomatic immunity. When Grotius outlines the five basic universal demands of expletive justice, one is that crimes be punished. This requirement is a formal precondition for any human society, a foundation upon which particular peoples are then free (at least under expletive justice) to substantively define the content of crimes in whatever humane or repressive fashion they choose. Yet the very possibility of international society—one based on the exercise of the human capacity for reason rather than animalistic violence—actually depends on transcending the universal expletive rule that demands punishment of visiting diplomats. In this case, the guidance of attributive justice is not merely a higher standard that can be withheld at the (expletive) prerogative of the right-holder. Paradoxically, it appears to be a precondition for an international order that wishes to minimize the wars that inevitably violate basic expletive rights. Expletive justice may not simply be ordered to attributive justice, but in a more subtle way, may even depend on it.

This higher place for attributive justice helps to clarify Grotius's emphasis on punitive war. Because expletive justice places few constraints after establishing the right to punish, Tuck sees Grotius's punitive war as a stalking horse for a “brutal” policy of colonization. This reading appears to hinge on a dismissal of Grotius's attributive counsels of moderation as irrelevant to political justice.Footnote ⁸⁷ However, if attributive justice is actually a higher form of justice, Grotius's many chapters on moderation in war can be taken as serious constraints on colonial ambition. Attributive justice eliminates the self-interested motive for colonization, and dramatically reduces the frequency and severity of punitive wars wherever undertaken. Indeed, Grotius shows such respect for other religions that he outlaws war for conversion, but legitimates punitive war against those who show impiety toward their own (non-Christian) gods.Footnote ⁸⁸

In sum, with expletive justice, Grotius simultaneously provides a grounding for rights and an exposition of their limits. The possession of a right is a beginning, not an end. While expletive justice may confer a right of action, it has little to say about how to exercise those rights in accordance with a higher good. Because natural rights are ultimately oriented toward a natural Right that is freely instantiated, they must be understood and actively exercised according to the virtues of attributive justice. Attributive justice does not eliminate expletive justice. However, by pointing toward the higher moral reality that can overcome the internal limitations of expletive justice, attributive justice may fulfill and transcend it.

This attributive justice emphasizes the importance of political practice, as one cannot simply implement basic universal rights and conclude that a just state is thereby achieved. Rather, a magistrate must strive toward justice in particular historical situations, understanding the internal character of the people and the particulars of their unique contexts. This must be an ongoing, forward-looking quest that imagines the instantiation of the common good on an ongoing basis, while recognizing that perfect justice will never be achieved. As a result, the ruler must possess the classical virtue of political prudence, seeking not simply to change the external behavior of subjects, but to foster a particular kind of character in the community. This is particularly true in regard to law enforcement, or punishment: the ruler must know when the common good would be best suited by punishment and when by clemency. This discloses Grotius's understanding of politics as an interpersonal practice, transcending the inflexible letter of the law.

Grotius's Classical Roots

Grotius's conception of attributive justice suggests that he is more consonant with the classical tradition of right by nature than is often assumed. In showing that justice transcends the protection of private property, he echoes Aristotle's treatment of justice in Book III, chapter 9 of the Politics. In this important chapter, Aristotle asserts that property is not a sufficient criterion for distributing public honors, because the true polis must also encourage a good “quality of character” in its citizens. The functions of promoting economic exchange and providing common defense are only preconditions for a polis. An exclusive focus on these lesser pursuits would cause the polis to sink into a mere “alliance”: a “‘guarantor of men's rights against one another’—instead of being, as it should be, a rule of life such as will make the members of a polis good and just.”Footnote ⁸⁹ Likewise, Grotius affirms the sanctity of private property while simultaneously showing that the ultimate purposes of politics aim higher.

Grotius also sides with Aristotle in viewing justice and ethics as a practical virtue, against modern natural-law (and especially natural-rights) theories that are more apt to see political ethics as relating to intellectual virtues and as knowable through propositional statements. Aristotle argues that a good polis comes about only through prudent political rule, which seeks to instill virtue in its citizens. Because no rules are universally true in all situations, the spoudaios must be able to discern the good in unique and particular historical contexts. Thus, natural Right resides more in concrete decisions than in general propositions.Footnote ⁹⁰ Politics is not simply an exercise of technē, but also requires (and cultivates) phronēsis. This emphasis on the importance of prudence is central to attributive justice.

Grotius's emphasis on practical virtue becomes particularly evident when he directly engages with Aristotle. Grotius's bifurcation of justice clearly follows from Aristotle's two categories in Book V of the Ethics, which Aquinas would rename “commutative” and “distributive” justice.Footnote ⁹¹ However, Grotius takes issue with Aristotle's use of the terms “geometric” and “arithmetic” to name them, because both terms are too deductive and nonsituational. In fact, he repeatedly uses Aristotle's broad understanding of political virtue in Book VI of the Ethics to criticize what he sees as Aristotle's overly mathematical conception of partial justice in Book V of the same.Footnote ⁹² Thus, where Grotius breaks with the words of Aristotle, he does so in order to develop more fully the Aristotelian spirit of phronēsis.