(New Series) vol. 24/25 (2003/2004) 41–66 – p.o. box 43 – 4900 ,

Oikeiosis and appetitus societatis

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Benajamin Straumann

• 1. Grotius’s appetitus societatis and its relationship to the Stoic doc-trine of oikeiosis

The philosophical traditions of classical antiquity are extremely importantwhen examining the justifications provided for Hugo Grotius’s concept ofnatural law. His main authorities in this respect were the Stoics, whose doc-trines were to be found in a number of philosophical works by Cicero, inparticular De legibus, De finibus bonorum et malorum and De officiis. This arti-cle examines the way in which Grotius used the Stoic doctrine of oikeiosis,which he introduced in the Prolegomena to his De iure belli ac pacis from the1631 edition onwards, describing it as appetitus societatis:

But among the traits characteristic of man is an impelling desire for society [appetitus soci-etatis], that is, for the social life – not of any and every sort, but peaceful, and organizedaccording to the measure of his intelligence, with those who are of his own kind; thisdesire the Stoics called oikeiosis.1

I will argue in the present paper that what Grotius presented in the 1625edition of De iure belli ac pacis as appetitus societatis, and later identified withoikeiosis, corresponds essentially to the Stoic notion of oikeiosis as put for-

1 De iure belli ac pacis prol. 6: Inter haec autem quae homini sunt propria, est appetitus societatis,id est communitatis, non qualiscunque, sed tranquillae et pro sui intellectus modo ordinatae cum hisqui sui sunt generis: quam oikeiosin Stoici appellabant. The edition used is B. J. A. de Kanter-van Hettinga Tromp (ed.), Hugonis Grotii De iure belli ac pacis libri tres, Lugduni Batavorum1939, reprint Aalen 1993, with additional notes by R. Feenstra and C. E. Persenaire (referredto as IBP below). The translation is taken from Hugo Grotius, De Jure Belli ac Pacis LibriTres, trans. F. W. Kelsey, ed. J. B. Scott, Oxford 1925 (The Classics of International Law 3,vol. 2). Some of the translations, however, have on occasion been modified for the sake ofclarity or accuracy.

ward by Cicero. Grotius might have or might not have known oikeiosis in itsmore orthodox version as developed by the elder Stoa (and his terminologysuggests the former), but it was clearly Cicero’s rendering of the doctrinethat provided the model for Grotius’s appetitus societatis and served to sub-stantiate Grotius’s system of natural law.

Researchers into the history of ideas have devoted considerable attentionto the doctrine of oikeiosis in antiquity. The general consensus is that thisdoctrine originated with the Stoics,2 although there are still a number of dif-ferent views with regard to the importance of the concept for Stoic ethics.3

There is general agreement, however, on the fact that the surviving litera-ture on oikeiosis – rendered here as ‘recognition and appreciation of some-thing as belonging to one’4 – does not, in any way, present a unified concept.We can distinguish two distinctly different approaches to the concept.5

According to the first, oikeiosis is the recognition and appreciation of oneselfas belonging to oneself – a characteristic observed in all living creatures, andone that is reflected in the impulse for self-preservation. In the otherapproach, oikeiosis is human recognition and appreciation of the human raceas belonging to the individual human being. Gisela Striker has pointed out

2 The view that oikeiosis was not originally a Stoic doctrine, but rather one that can beshown to have been present in the Peripatos, was put forward by Arnim in 1926 and again byDirlmeier. This view is based mainly on the presentation of oikeiosis by Arius Didymus inStobaeus, where it is referred to as a part of Peripatetic ethics. Arnim and Dirlmeier regardedthis description as an authentic reflection of Theophrastus’ moral philosophy, see J. vonArnim, Arius Didymus’ Abriss der peripatetischen Ethik, Vienna-Leipzig 1926 (Akademie derWissenschaften in Wien, philosophisch-historische Klasse, Sitzungsbericht 204, 3), 131ff.,157-161 and F. Dirlmeier, Die Oikeiosis-Lehre Theophrasts, Leipzig 1937, 20ff., 67-72. MaxPohlenz opposed this view in 1940; according to Pohlenz, the presentation of oikeiosis byArius Didymus represents an integration of the true Stoic doctrine of oikeiosis into Peripateticethics attributable to the Academic eclectic Antiochus of Askalon. Thus Theophrastus, as thesource, is eliminated. Brink came to a similar conclusion in 1956 when he claimed Stoicrather than Peripatetic origins for the doctrine of oikeiosis; see M. Pohlenz, Grundfragen derstoischen Philosophie, Göttingen 1940 (Abhandlungen der Gesellschaft der Wissenschaften zuGöttingen, Philosophisch-historische Klasse 3, 26), 1-81 and C. O. Brink, ‘Oikeiosis andoikeiotes: Theophrastus and Zeno on Nature in Moral Theory’, Phronesis 1 (1955-56), 123-145.3 On this issue see Pohlenz, Grundfragen ; Brink, ‘Oikeiosis’; S.G. Pembroke, ‘Oikeiosis’, inProblems in Stoicism, ed. A.A. Long, London 1971, 114-149; G. Striker, ‘The Role of oikeiosisin Stoic Ethics’, in Striker, Essays on Hellenistic Epistemology and Ethics, Cambridge 1996,281-297; T. Engberg-Pedersen, The Stoic Theory of Oikeiosis, Aarhus 1990.4 From Striker, ‘The Role’, 281. Cf. Pembroke, ‘Oikeiosis’, 116.5 See Pembroke, ‘Oikeiosis’, 121, where different kinds of oikeiosis are discussed.

that these two different views correspond to two distinct functions of oikeio-sis in Stoic philosophy. The first function is to support the Stoic conceptionof telos, while the second provides the justification for the notion of justice inStoic teaching on virtue,6 although to some extent the second function isdependent on the first (the teleological) function.

At first sight, Grotius’s appetitus societatis would appear to contain ele-ments of both uses. The term appetitus brings in the aspect of individualimpulse contained in the first (teleological) use, while societas, as the objectof this impulse, refers more to a notion of oikeiosis as recognition and appre-ciation of the way in which the societas humani generis belongs to the individ-ual human being. In his influential description of Grotius’s natural lawapproach, Richard Tuck stresses the importance of the impulse for self-preservation as the basis of this system. He describes Grotius’s refutation ofCarneades’s skepticism7 using the principle of self-preservation as ‘Grotius’smost powerful and original idea’.8 This alleged originality of Grotius isfounded on a view already put forward by Jean Barbeyrac at the beginning ofthe 18th century, in a historic treatise on the development of moral philoso-phy. Barbeyrac claimed that no arguments against Carneades and his skepti-cism had been developed during either the classical or medieval periods.‘According to Barbeyrac, the writers of antiquity and the Middle Ages allfailed to produce an adequate scientific ethics; the Stoics and Cicero [...]came nearest, but even they were deficient in a number of crucial aspects.’ 9

Tuck himself adheres to Barbeyrac’s view. Not only does he see Grotius’s

6 Striker, ‘The Role’, 282. See also L. Winkel, ‘Die stoische oikeiosis-Lehre und UlpiansDefinition der Gerechtigkeit’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte romani-stische Abteilung 105 (1988), 669-679.7 Grotius identified the Academic skeptic Carneades – as presented in Cicero’s De republica – as the main spokesman of a branch of skepticism that contests the existence of anynatural law. Cicero had already used Carneades as the representative of certain skeptic viewsthat had previously constituted part of the Sophist repertoire, and Grotius was familiar withthe passage in De re publica from Lactantius, Divinae institutiones 5, 16, 3. He discussesCarneades’s case for skepticism in IBP prol. 5. 8 Richard Tuck, ‘The “Modern” Theory of Natural Law’, in The Languages of PoliticalTheory in Early-Modern Europe, ed. A. Pagden, Cambridge 1987, 113. There have been somechallenges to this position in the literature. An essay by Shaver rightly makes the point thatGrotius’s case against Carneades’s skepticism is based less on the principle of self-preserva-tion and rather more on the social nature of human beings, although Shaver does not addressthe classical dimension of this argument. See R. Shaver, ‘Grotius on Scepticism and Self-Interest’, Archiv für Geschichte der Philosophie 78 (1996), 27-47.9 Tuck, ‘The “Modern” Theory’, 107.

system of natural law as a Humanist refutation of Academic skepticismbased, ultimately, on the principle of self-preservation, but he also agreeswith Barbeyrac in regarding this refutation as a revolutionary and specifi-cally modern argument first presented by Grotius.10

In the discussions that follow it will be argued that this is not the case andthat, on the contrary, Grotius accepted the arguments put forward by Ciceroagainst Carneades’s criticism of natural law and made use of them. The rea-son why Cicero’s arguments in favor of a natural law lent themselves to Gro-tius was that both Cicero’s and Grotius’s doctrines of natural law originallystem from an attempt to legally defend imperial expansion. In Cicero’s case,natural law in De republica served as the main argument not against moralskepticism in general, but against the attacks mounted by Carneades againstthe Roman just war doctrine. Grotius, in De iure praedae, drew upon thisCiceronian tradition, not in order to refute the second order skepticism ofearly modern skeptics such as Montaigne or Charron, as Tuck holds, but, ina context arguably similar to Cicero’s, in mounting his natural law defense ofDutch military expansion in the East Indies.11 Moreover, the Ciceronianarguments substantiating the natural law were not limited to the principle ofself-preservation; neither did Grotius limit them in this way. Rather theywere arguments starting from the Stoic notion of oikeiosis in favor of a vir-tue-based natural law that allowed, however, for being formulated in a sys-tem of allegedly natural, universal legal rules. I will begin by outlining the

10 Tuck, ‘The “Modern” Theory’, 109-115. Tuck rightly emphasises the Humanist charac-ter of Grotius’s writing. However he also contrasts it with the writers of the scholasticism ofthe school of Salamanca – a disparity that was scarcely perceived by Grotius himself; see IBPprol. 53, 55, where the late scholars Covarruvias and Vazquez, together with the HumanistsBodin and Hotman, are cited as representatives of that group of Roman law scholars, quihumaniores literas cum legum studio conjunxerunt. We should also qualify Tuck’s additionalclaim that Grotius, with his Humanist background, was reacting to the challenge of Human-ist skepticism as propounded by Montaigne and Charron by being the first to presentCarneades as the ‘principal spokesperson’ of this skepticism, and founding his natural lawsystem on a refutation of Carneades’s arguments. In 1554, Theodor Beza had already identi-fied Carneades in a theological context as a possible opponent of Calvinist doctrine, while,within the context of international law, the Spanish lawyer Ayala had subsequently touchedon the dialogue between Laelius and Philus presented in Cicero’s De re publica. Ayala –whom Grotius describes as a predecessor in the Prolegomena – mentions the debate in hisPraefatio de Jure Belli of 1582, where he expresses the view that Laelius presented a convinc-ing case against Carneades and in favour of the need for justice in a state. See, on TheodorBeza, R. Popkin, The History of Scepticism. From Savonarola to Bayle, revised and expandededition Oxford 2003, 11.11 As I will try to argue in detail elsewhere.

various different kinds of oikeiosis in order to obtain a reliable picture of thecontext in which Grotius developed his idea of appetitus societatis.12

• The self-preservation impulse in oikeiosis

In the third book of his De finibus, in a passage discussed and adopted byGrotius,13 Cicero has Cato explain the tota Zenonis Stoicorumque sententia –the entire Stoic system of ethics. Cato begins by presenting oikeiosis, in otherwords, by describing the development of human beings from birth onwards,with the aim of demonstrating the natural human development towards thehuman telos, as understood by the Stoics. Thus we see the oikeiosis conceptbeing used here to support the Stoic doctrine of telos and assisting in thesearch for the summum bonum – that which is done for its own sake. Follow-ing Epicurus, however, an explanation of natural human impulses wasrequired in this search for the ultimate goal of human endeavour, in order torefute the Epicurean telos concept as presented in the first book of De finibusby L. Manlius Torquatus.14 Beginning with the moment of birth, Manliusequated the summum bonum with voluptas. Birth served as his point of depar-ture when arguing the natural character of the impulse towards voluptas –

12 The legal historian Laurens Winkel has published a very useful article on the classical ori-gins of Grotius’s concept of appetitus societatis, although he focuses mainly on terminologicalproblems (based on the notes to prol. 6 added by Grotius to the 1642 edition and thereafter)rather than concepts: L. Winkel, ‘Les origines antiques de l’appetitus societatis de Grotius’,Legal History Review 68/3 (2000), 393-403. According to Winkel the term appetitus societatisis not a modern Humanist translation of oikeiosis, since this term can be found in Cicero andSeneca: Winkel, ‘Origines’, 399-400. However it seems more likely that Grotius’s source wasVázquez’s Controversiarum illustrium usuque frequentium libri tres (1564), where the naturalisappetitus societatis is regarded as Peripatetic doctrine (praefatio nn. 121-122.). In addition, JonMiller has recently published an article on the Stoic influence on Grotius: J. Miller, ‘Stoics,Grotius, and Spinoza on Moral Deliberation’, in Hellenistic and Early Modern Philosophy, ed.J. Miller/B. Inwood, Cambridge 2003, 116-140.13 In IBP 1, 2, 1, 1. See below, p. 12, at n. 44.14 See M. Pohlenz, Die Stoa, vol. 1, Göttingen 1959, 113. Zeno was convinced that Epicurushad used the right methods. Zeno, argues Pohlenz, was the first to address the philosophicalproblem of how the first impulse developed in human beings in view of their rational nature,answering it with the concept of oikeiosis. See also Pohlenz, Grundfragen, 40, where Pohlenzattributes the Stoic attempt to begin the presentation of oikeiosis in the earliest stages ofhuman development after birth to the influence of Epicurus. On the Epicurean version ofoikeiosis, where desire is seen as proton oikeion, see Jacques Brunschwig, ‘The Cradle Argu-ment in Epicureanism and Stoicism’, in The Norms of Nature: Studies in Hellenistic Ethics, ed.M. Schofield/G. Striker, Cambridge 1986, 115-116.

living beings observed in a later stage of development might already be cor-rupt, and could therefore no longer be used to exemplify the effects ofnature.15 Cato’s presentation of the Stoic conception of oikeiosis also takesthe moment of birth as its point of departure.

It is the view of those whose system I adopt, that immediately upon birth (for that is theproper place to start from) a living creature feels an attachment for itself [ipsum sibi conci-liari], and an impulse to preserve itself [commendari ad se conservandum] and to feel affec-tion for its own constitution and for those things which tend to preserve that constitution;while on the other hand it conceives an antipathy to destruction and to those things whichappear to threaten destruction.16

Immediately after birth, he argues, every living being is appropriated andcommended to itself. The purpose of this procedure is self-preservation.For the ancient Stoics the self-preservation impulse is an expression of theself-love innate in all beings, a self-love linked to the perception of the self(synaisthesis) that exists from birth. Out of this self-perception arises the ini-tial impulse (horme), in other words, the first movement of the soul (protepsyches kinesis) towards an object,17 in this case towards its own being that isperceived as belonging to itself (oikeion). This ‘orientation towards one’sown being’18 is oikeiosis. Cicero uses conciliari and commendari to translatethe Stoic oikeiousthai and makes corresponding use of the nouns conciliatioand commendatio in his presentation of oikeiosis. As opposed to Epicureandoctrine, the Stoics believe the self-preservation impulse emerges in thenew-born being before voluptas affects it in any way. Thus desire can nolonger be regarded as the first object of natural impulses. In De finibus,Cicero has Cato illustrate this argument with the example of a new-bornbeing.19

According to the Stoics, then, the object towards which the initialimpulse arising out of self-love is directed is not voluptas. Rather it is thepreservation of one’s own health and body, as well as one’s own ability to

15 Cicero, De finibus 1, 30: Omne animal simul atque natum sit voluptatem appetere eaque gau-dere ut summo bono, dolorem aspernari ut summum malum et quantum possit a se repellere; idquefacere nondum depravatum, ipsa natura incorrupte atque integre iudicante.16 Cicero, De finibus 3, 16: Placet his, quorum ratio mihi probatur, simul atque natum sit animal– hinc enim est ordiendum –, ipsum sibi conciliari et commendari ad se conservandum et ad suumstatum eaque, quae conservantia sint eius status, diligenda, alienari autem ab interitu iisque rebus,quae interitum videantur adferre. The translation is taken from Marcus Tullius Cicero, De fini-bus bonorum et malorum, trans. H. Rackham, Cambridge Mass. 1931 (Loeb Classical Library40).17 SVF 2, 458; cf. SVF 3, 169.18 Pohlenz, Die Stoa, 114.

perceive and understand. These are the objects which living beings naturallypursue. However, with respect to human beings these are not merely objectsthat are in accordance with nature (ta kata physin). They are the primaryobjects in accordance with nature (ta prota kata physin) – the principia natu-ralia that are pursued first of all (res, quae primae appetuntur). Grotius waswell aware of this distinction.20 It was a differentiation that, once again,served to distinguish animals and children, on the one hand, from olderhuman beings on the other. Because of this distinction, the things in accord-ance with nature that were pursued by people of a greater age could be char-acterised differently.21 Cato had undertaken to demonstrate that virtue alonewas the summum bonum and that, therefore, the wise man needed to make aselection from amongst the things that were in accordance with nature. Forthis reason it was necessary for him to show that a shift from the prota kataphysin aimed at self-preservation to the true Stoic telos of honestum was plau-sible. In this process, as Striker rightly comments, a change takes place:Consideration of a ‘normal development’ towards increasing rational capaci-ties (in line with the increasing development of the logos) gives way to con-sideration of a ‘moral development’.22

• The Stoic telos

After the section of De finibus described above, Cato goes on to present theprocess by which the object of oikeiosis shifts from the primary things inaccordance with nature and from self-preservation to the Stoic telos. For-mally, based on the criteria established by Aristotelian ethics23 and inaccordance with the other Hellenistic schools, the Stoic tradition under-stood telos to be that which is done for its own sake, and for which every-

19 Cicero, De finibus 3, 16f.: id ita esse sic probant, quod ante, quam voluptas aut dolor attigerit,salutaria appetant parvi aspernenturque contraria, quod non fieret, nisi statum suum diligerent,interitum timerent. fieri autem non posset ut appeterent aliquid, nisi sensum haberent sui eoque sediligerent. ex quo intellegi debet principium ductum esse a se diligendo. in principiis autem naturali-bus plerique Stoici non putant voluptatem esse ponendam.20 Grotius was aware of the formulation ta prota kata physin and also cited it, as shownbelow.21 See SVF 3, 140-146; 181, on things in accordance with nature. According to Pohlenz, DieStoa, vol. 2, Göttingen 1959ff., 66, Zeno created the term ta prota kata physin as an additionto the existing doctrine on things kata physin. Cf. also Pohlenz, Grundfragen, 13.22 Striker, ‘The Role’, 289.23 Aristotle, Ethica Nicomachea 1, 1097a15ff.; cf. T. Irwin, ‘Stoic and Aristotelian concep-tions of happiness’, in Schofield/Striker The Norms, 206ff.

thing else is done.24 When it came to the semantic content of the term,however, the Stoics understood telos to be ‘life in accordance with nature’.25

As opposed to the other schools of philosophy, it was this life in accordancewith nature that was the sole object of oikeiosis in Stoic ethics. In the devel-opment that Cato describes in De finibus, Gisela Striker sees the explanationof why this shift from self-preservation to a life in accordance with nature, asthe exclusive object of oikeiosis, can be regarded as plausible: “What seems tobe needed is an argument to show that man’s interest should at a certainpoint in life shift from self-preservation or even self-perfection to an exclu-sive interest in observing and following nature.”26

Cato’s argument can be outlined as follows: The initial human oikeiosis(conciliatio) is directed towards things that are in accordance with nature (ea,quae sunt secundum naturam). However as soon as man gains insight andunderstanding (ennoia, notio) and is able to recognise the order and harmonyof things and actions, he gives clear preference to harmony (concordia). Byapplying his perception and reason (ratio) he ultimately realises that thisharmony – because it is the Stoic homologia (translated by Cicero as conveni-entia) – is in fact the supreme human good (summum bonum), to be praisedand sought for its own sake. It is in the Stoic homologia that this good(bonum) – virtue (honestum) itself, the only component of good to which eve-rything else must be related – is to be found. Although virtue does notdevelop until a later stage, it is in fact the only quality worth striving for.The primary things in accordance with nature (quae sunt prima naturae) arenot regarded as worthwhile in this sense.27

Here we see Cato providing an explanation of the way in which the objectof oikeiosis shifts as man uses his reason. Scholars differ on whether this pas-sage represents an argument in favour of the Stoic thesis that life in accord-ance with nature is the summum bonum for mankind or whether the textmerely attempts to make plausible the shift in the object of oikeiosis during

24 Stobaeus 2, 77, 16f.25 Writers differ on the origins of this designation. Diogenes Laertius (7, 87) attributes thistelos formulation to Zeno, while in Stobaeus (2, 75, 11ff.) Arius Didymus is quoted as sayingthat Cleanthes was the first person to use the complete formulation, thereby extendingZeno’s original shorter formulation which defined telos as to homologoumenos zen, and trans-forming it into telos esti to homologoumenos tei physei zen. See B. Inwood, ‘Stoic ethics’, in TheCambridge History of Hellenistic Philosophy, ed. Keimpe Algra, Cambridge 1999, 684-687 for asynthesis of the doxography of the different Stoic formulations of telos.26 Striker, ‘The Role’, 289.27 Cicero, De finibus 3, 21.

the course of human development.28 However it is clear that the Stoic notionof oikeiosis – as presented to us in the third book of Cicero’s De finibus – hasbeen extended beyond the idea of self-preservation to take in a life in accor-dance with nature, and, moreover, that this extension is somehow attributa-ble to ratio. As outlined below, this was the model adopted by Grotius, amodel we might describe as a kind of dual or two-stage oikeiosis.

An additional aspect that was extremely important for the way in whichGrotius used these ideas is related to the Stoic identification of the summumbonum – life in accordance with nature – with virtue (honestum). In order toprove Cato’s claim as outlined above, that virtue is worth pursuing for itsown sake, it must first be shown that virtue fulfils the criteria for the sum-mum bonum, in other words, that virtue and virtuous conduct correspond to,or are predetermined by, human nature. Cicero demonstrates this with anadditional version of the doctrine of oikeiosis that sees oikeiosis as the founda-tion of honestum. “[I]n order to show that nature prescribes virtuous behav-iour, the Stoics would have to show that such behaviour is natural for man.And this is, I think, what they tried to do with their second appeal to oikei-ôsis, thus making it the foundation of justice, and indeed of the other virtuesas well.”29 It is this Ciceronian doctrine of oikeiosis that was adopted by Gro-tius.

• 2. Extending the doctrine of oikeiosis to include justice

The Stoic objective in establishing the self-preservation impulse as the ini-tial pre-rational object of oikeiosis had been to oppose the hedonist Epicu-rean telos doctrine. However, it was the fact that the Stoics equated virtue,and particularly iustitia, with their notion of the summum bonum – a rationallife in accordance with nature – that moved Carneades to criticise the con-cept. This, in its turn, forced the Stoics to defend their telos doctrine, withits element of honestum.

In Cicero’s De republica a participant to the dialogue is made to argue thecase for injustice in Carneadean terms. Although Carneades’s original criti-

28 See Engberg-Pedersen, The Stoic Theory, 81-97, for the view that Cicero’s De finibus 3, 21represents an argument in favour of the Stoic telos. Engberg-Pedersen discusses Striker’sarguments in ‘The Role’, 289-293, where she maintains that Cicero, in De finibus 3, 21, sim-ply assumes that life in accordance with nature is the yardstick for human action. Howevereven Striker admits that the ‘vague phrase’ cognitione et ratione collegit is a slight indication –at least – that there may be an argument here. See Striker, ‘The Role’, 290-291.29 Striker, ‘The Role’, 294.

cism probably only concerned the internal justice of a state, in De republicaCarneades was made to attack the morality of Roman imperial conquest andrule. This attack was then repudiated by another participant to the dialogue,providing the first extant philosophical justification of the Roman empire,30

a justification presented in Stoic terms, using the idea of oikeiosis and naturallaw to mount a legal defense of Roman imperialism. Cicero’s sequel to Derepublica, De legibus, starts where the argument in De republica had left off,with the doctrine of natural law and justice. It is important to see that thiswas the tradition Grotius was drawing upon in substantiating his doctrine ofnatural law and, ultimately, of just war. Cicero’s answer to criticism directedagainst the Roman just war doctrine, arguing in Stoic terms from oikeiosis tothe existence of natural law, clearly lent itself to Grotius, whose natural lawsystem had had its starting point, in De iure praedae, in the legal defense ofDutch commercial imperialism in the East Indies.

• The role of ratio

In De legibus we find an indication of how important it was for Cicero toestablish arguments in favour of the natural character of justice. We cansafely assume that Grotius was familiar with the text, particularly since hemade explicit use of other passages from De legibus on several occasions.31

The passage appears to be a direct response to Carneades’s argument in Derepublica,32 where he maintains there can be no natural law since natureimpels all living beings to seek their own advantage:

And if justice is obedience to the written laws and institutions of a people,and if (as these same people say [i.e. Carneades and the skeptics]) everythingis to be measured by utility, then whoever thinks that it will be advantageousto him will neglect the laws and will break them if he can. The result is thatthere is no justice at all if it is not by nature, and the justice set up on the

30 For the relation between Cicero and the original Carneadean debate, see J.E.G. Zetzel,‘Natural Law and Poetic Justice: A Carneadean Debate in Cicero and Virgil’, Classical Philol-ogy 91, 1 (1996), 297-319.31 IBP 1, 3, 8, 1, note 1; 1, 3, 12, 1; 2, 19, 2, 1f.; 2, 21, 19, note 3. Grotius’s library in 1618contained two copies of Cicero’s works, see P.C. Molhuysen, ‘De bibliotheek van Hugo deGroot in 1618’, Mededeelingen der Nederlandsche Akademie van Wetenschapen, Nieuwe Reeks,Deel 6, 61f., nos. 271, 307.32 In De legibus, Carneades’s Academy is required to maintain silence right from the start;Cicero, De legibus 1, 39: Perturbatricem autem harum omnium rerum Academiam, hanc ab Arce-sila et Carneade recentem, exoremus, ut sileat.

basis of utility is uprooted by that same utility: if nature will not confirm jus-tice, all the virtues will be eliminated.33

No argument in favour of a natural law system based on the doctrine ofoikeiosis is presented here. Instead, the reader is clearly confronted with thedaunting consequences of any alternative to a natural law system of thiskind. According to Cicero, justice is either natural or it loses its status as theyardstick for all written laws. It cannot be based on advantage. Any attemptto base arguments in favour of iustitia on utilitas – or at any rate, on utilitasalone – is condemned to failure since this kind of notion of justice wouldinevitably be undermined by the criterion of advantage.34

In Cicero’s De republica, Carneades had found himself faced with thesame alternative, prompting him to locate utilitas within the sphere of thenatural and deny that any kind of natural justice or natural law was possible.In this way iustitia was reduced to mere obedience to positive laws and tookon a decidedly convention-like character. Thus, in order to avoid the conse-quences outlined in the passage cited – i.e. the overturning of virtues – anargument for the natural character of iustitia was needed. An argument ofthis kind can be found in De finibus, where the doctrine of oikeiosis, untilthen focused on individuals and their actions alone, is extended in an altruis-tic fashion and used to describe the social nature of mankind.35 The socialnature of the human race in general (communis humani generis societas) is

33 Cicero, De legibus 1, 42-43: Quodsi iustitia est obtemperatio scriptis legibus institutisque popu-lorum, et si, ut eidem dicunt, utilitate omnia metienda sunt, negleget leges easque perrumpet, sipoterit is, qui sibi eam rem fructuosam putabit fore. Ita fit, ut nulla sit omnino iustitia, si nequenatura est, eaque quae propter utilitatem constituitur, utilitate illa convellitur, utque si natura con-firmatura ius non erit, virtutes omnes tollantur. The translation is taken from Marcus TulliusCicero, On the Commonwealth; and, On the Laws, ed. and trans. J. E. G. Zetzel, Cambridge1999. The final line of the text is uncertain: Dyck reads Atque si natura confirmatum ius nonerit, tollantur <...necesse est>, thus choosing not to insert the words virtutes omnes; Strikerreads <iustitia omnis> tolla{n}tur; see A.R. Dyck, A Commentary on Cicero, De Legibus, AnnArbor 2004, 187-188.34 See Dyck, A Commentary, 187.35 Engberg-Pedersen, The Stoic Theory, 122-123: ‘Till now the doctrine of oikeiosis has beensilent on a person’s relations with others. [...] So how does one get from the love of self whichis at the centre of oikeiosis in its first version, and has remained so in actual fact (though onlyaccidentally) after one has reached the final insight, to some form of genuine care for others?It is this basic step away from natural self-centredness that the Stoics attempt to elucidatewhen they bring in oikeiosis for the second time.’

derived from the love that parents have for their children.36 This gives riseto oikeiosis (commendatio) between human beings,37 a move that severs anyearlier link with self-preservation.

We may presume that this second step in oikeiosis – hominum inter hominescommendatio – is also understood to be the result of mankind’s rationalnature, even if it is not explicitly argued here. However, the importance ofratio is explicitly noted in the first book of De officiis, which describes thetransition from the self-preservation impulse to the social nature of man-kind, stressing the differentiation between humans and animals that was socharacteristic for the Stoa.38

Nature causes human beings to feel they are part of fellow humankindthrough the power of their rational faculties, and this makes honestum and

36 Cicero, De finibus 3, 62. M. Schofield, ‘Two Stoic Approaches to Justice’, in Justice andGenerosity: Studies in Hellenistic Social and Political Philosophy, ed. A. Laks/M. Schofield,Cambridge 1995, 198-199 does not regard this passage as a real argument for the natural char-acter of justice. For him it is more of a preparation for an argument of this kind, and the tran-sition to iustitia, he believes, was probably not fully developed in ancient Stoic sources. ‘Ioffer the hypothesis that, as so often, Zeno gave no explicit account of the matter. Hence, Isuggest, later Stoics were forced – again, as often – to offer their own divergent explanations,bereft of any authoritative guidance from the founder of the school.’ Various explanations ofthe transition from oikeiosis as inter homines commendatio to justice had been attempted in thefirst and third books of Cicero’s De officiis, based on Panaitios (off. 1) and Antipater (off. 3).37 Cicero, De finibus 3, 63: ex hoc nascitur ut etiam communis hominum inter homines naturalissit commendatio, ut oporteat hominem ab homine ob id ipsum, quod homo sit, non alienum videri.Cf., also, the excerpts from Hierocles in Stobaeus 4, 671, 7-673, 11.38 Cicero, De officiis 1, 11f.: Principio generi animantium omni est a natura tributum, ut se,vitam corpusque tueatur, declinet ea, quae nocitura videantur [...]. Sed inter hominem et beluamhoc maxime interest, quod haec tantum, quantum sensu movetur, ad id solum, quod adest quodquepraesens est, se accomodat, paulum admodum sentiens praeteritum aut futurum. Homo autem, quodrationis est particeps, per quam consequentia cernit, causas rerum videt earumque praegressus etquasi antecessiones non ignorat, similitudines comparat rebusque praesentibus adiungit atque adnec-tit futuras, facile totius vitae cursum videt ad eamque degendam praeparat res necessarias.Eademque natura vi rationis hominem conciliat homini [...]. This passage was not included inthe collection by Long/Sedley (The Hellenistic philosophers, 2 vols., Cambridge 1987, fromhere on abbreviated as LS) and is not discussed in the relevant monograph by Engberg-Ped-ersen, The Stoic Theory, hence Engberg-Pedersen’s view (125) that ‘The Stoics nowheremake clear the precise role of rationality in bringing about this result [...].’ The fact that thefunction of reason was critical is evident, not least in the anonymous commentary on Plato’sTheaitetos, which according to LS I, S. 353 provides (probably Academic) criticism of theStoic position. The anonymous commentator concedes the Stoic argument of a natural andsimultaneously rational oikeiosis with respect to one’s ‘neighbour’ – but believes a dinstinctionshould be made between different degrees of oikeiosis.

virtuous conduct appear natural. In the same way virtue is shown to corre-spond to Stoic requirements with respect to the summum bonum. The use ofthe vis rationis must be seen as a new element in the Stoic doctrine of oikei-osis, with the concept of ratio being understood in the authentic Stoic tradi-tion as the human capacity for anticipation, conclusion and comparison.39

Reason is seen – following Stoic tradition – as the specific difference to theanimal world, and is used to justify the social nature of mankind, for whichthe rational capabilities of anticipation, conclusion and comparison are pre-requisites.40

• The transition from self-preservation to honestum

Referring explicitly to the third book of Cicero’s De finibus and its Stoicsources, Grotius clearly adopted this idea of a transition from the self-pres-ervation impulse – as the first object of oikeiosis – to honestum as the superiorgood, preferable to mere self-preservation:

Marcus Tullius Cicero, both in the third book of his treatise On Ends andin other places, following Stoic writings learnedly argues that there are cer-tain primary things in accordance with nature [prima naturae] – ‘first accord-ing to nature’ [ta prota kata physin], as the Greeks phrased it – and certainother principles which are later manifest buth which are to be preferred overthose first principles.41

Grotius probably came across the Stoic formulation ta prota kata physinin either Aulus Gellius or Stobaeus (he compiled an edition of the latter’sworks42), since in Cicero it appears only in Latin.43 After discussing Cato’sexplanation in De finibus, which begins with birth, the doctrine of oikeiosis,

39 See Schofield, ‘Two Stoic Approaches’, 202-203.40 As already formulated by Cicero in De legibus 1, 22: animal hoc providum sagax multiplexacutum memor plenum rationis et consilii, quem vocamus hominem [...].41 IBP 1, 2, 1, 1: M. Tullius Cicero tum tertio de Finibus, tum aliis in locis, ex Stoicorum libriserudite disserit, esse quaedam prima naturae, Graecis ta prota kata physin, quaedam consequentia,sed quae illis primis praeferenda sint.42 See W. S. M. Knight, The Life and Works of Hugo Grotius, London 1925, 167.43 Aulus Gellius 12, 5, 7. Grotius may also have found the expression in the works of Sto-baeus; see Stobaeus 2, 79, 18ff. (= LS 58 C), where ta prota kata physin is used in the contextof indifferent things (ta adiaphora).

and the primary things in accordance with nature,44 Grotius turns to the roleof honestum, using the two-stage oikeiosis model familiar to him from Cicero.Ratio is given an important role, but one that differs slightly from the corre-sponding passage in De finibus, making evident the use Grotius made also ofCicero’s De legibus:

But after these things have received due consideration [Cicero contin-ues], there follows a notion of the conformity [convenientia] of things withreason, which is superior to the body. Now this conformity, in which moralgoodness [honestum] becomes the paramount object, ought to be accountedof higher import than the things to which alone instinct first directed itself,because the primary things in accordance with nature [prima naturae] com-mend us to right reason [recta ratio], and right reason ought to be more dearto us than those things through whose instrumentality we have been broughtto it. Since this is true and without other demonstration would easily receivethe assent of all who are endowed with uncorrupted judgement [sanum iudi-cium], it follows that in investigating according to natural law it is necessaryfirst to see what is consistent with those fundamental principles of nature,and then to come to that which, though of later origin, is nevertheless moreworthy – that which ought not only to be grasped, if it appear, but to besought out by every effort.45

This presentation is obviously based essentially on the explanation para-phrased above, which also saw the application of reason as the crucial devel-

44 IBP 1, 2, 1, 1: Prima naturae vocat, quod simulatque natum est animal, ipsum sibi conciliaturet commendatur ad se conservandum, atque ad suum statum, et ad ea quae conservantia sunt eiusstatus, diligenda: alienatur autem ab interitu iisque rebus, quae interitum videantur afferre. Hincetiam ait fieri, ut nemo sit, quin cum utrumvis liceat, aptas malit et integras omnes partes corporis,quam easdem usu imminutas aut detortas habere: primumque esse officium, ut se quis conservet innaturae statu, deinceps ut ea teneat, quae secundum naturam sint, pellatque contraria. This pas-sage is largely based on the third book of Cicero’s De finibus; here passages are reproducedalmost word by word from Cicero’s De finibus 3, 16; 3, 17 and 3, 20.45 IBP 1, 2, 1, 2: At post haec cognita sequi notionem convenientiae rerum cum ipsa ratione quaecorpore est potior; atque eam convenientiam, in qua honestum sit propositum, pluris faciendam,quam ad quae sola primum animi appetitio ferebatur; quia prima naturae commendent nos quidemrectae rationi, sed ipsa recta ratio carior nobis esse debeat quam illa sint a quibus ad hanc venerimus.Haec cum vera sint et ab omnibus, qui iudicio sano sunt praediti, facile sine alia demonstrationeassensum impetrent; sequitur in examinando iure naturae primum videndum quid illis naturae initiiscongruat, deinde veniendum ad illud, quod quanquam post oritur, dignius tamen est; neque sumen-dum tantum, si detur, sed omni modo expetendum. Cf. Ulp. Dig. 1, 1, 10, where the honeste vivereis named among the praecepta iuris. Grotius’s concept, however, is clearly based on Cicero’sdetailed account of the Stoic honestum.

opment. In the third book of De finibus Cato had explained the shift in theobject of oikeiosis away from the primary things in accordance with nature,and away from self-preservation towards the Stoic telos,46 and Grotius clearlytook this passage as his source when justifying the hierarchical relationshipbetween self-preservation and the superior quality of honestum. The latter was aproduct of human reason and the insight derived through the use of this fac-ulty. However, in the quoted passage Grotius differed from Cato in apply-ing the two stages of the Stoic doctrine of oikeiosis to his discussion ofnatural law. By contrast, Cicero’s Cato did not discuss ius naturae since,although he maintained that there was a link between virtue (honestum) andthe Stoic summum bonum (as shown in the section on the Stoic notion of telosabove), he was unable to show that virtue fulfilled the criteria required forthe Stoic summum bonum. In other words, he could not demonstrate that vir-tue and virtuous conduct corresponded to human nature or were derivedfrom it. While in De finibus the purpose of reason was to recognise the sum-mum bonum and to identify it with life in accordance with nature, Grotius,going beyond this identification, created a direct link between honestum (andwith it justice) and human nature, via recta ratio, in a way strongly reminis-cent of, and most probably taken from, the pertinent passages in Cicero’s Delegibus.47

In his article entitled Two Stoic Approaches to Justice, Malcolm Schofielddifferentiates between an ‘ethical’ on the one hand and a ‘metaphysical’ or‘theological’ argument on the other in favour of justice on the part of theStoa. He sees the doctrine of oikeiosis as serving the ethical argument.48

However, even for the texts that Schofield uses to support his argument this

46 Cicero, De finibus 3, 21: prima est enim conciliatio hominis ad ea, quae sunt secundum natu-ram. simul autem cepit intellegentiam vel notionem potius, quam appellant ennoian illi, viditquererum agendarum ordinem et, ut ita dicam, concordiam, multo eam pluris aestimavit quam omniailla, quae prima dilexerat. atque ita cognitione et ratione collegit, ut statueret in eo collocatum sum-mum illud hominis per se laudandum et expetendum bonum, quod cum positum sit in eo, quod homo-logian Stoici, nos appellemus convenientiam, si placet, – cum igitur in eo sit id bonum, quo omniareferenda sint, honeste facta ipsumque honestum, quod solum in bonis ducitur, quamquam postoritur, tamen id solum vi sua et dignitate expetendum est; eorum autem, quae sunt prima naturae,propter se nihil est expetendum.47 Cicero, De legibus 1, 22f.48 See Schofield, ‘Two Stoic Approaches’, 194, where the first book of De legibus serves asan example for Stoic ‘metaphysical’ arguments in favour of justice, and De finibus 3, 62ff.(supported by De officiis 1, 11f. and 3, 19-28) for their ‘ethical’ arguments.

kind of distinction is unnecessary.49 In the case of Grotius (who uses preci-sely these texts), we can definitely exclude any clear differentiation of thiskind, particularly in view of the fact that Grotius imposes ‘metaphysical’preconditions for his ‘ethical’ justification of natural justice using the Stoicdoctrine of oikeiosis. This is particularly obvious in the passage quotedimmediately above, where Grotius appears to equate Stoic honestum, andwith it justice, with recta ratio. While it is clear that there are different viewsamongst historians of philosophy with regard to the Stoics and the use madeof the doctrine of oikeiosis, Grotius’s reading of the various sources and inparticular his reading of the relevant texts in Cicero appears consistent: inGrotius’s works oikeiosis and the ‘metaphysical’ argument in favour ofjustice are elements of one and the same conception of natural justice.

Grotius argues that virtue (honestum) lies in the agreement (or harmony:convenientia) of things with reason, an agreement that is superior to thebody. This agreement, according to Grotius, is of higher value than thosethings which, initially, are the sole things towards which our impulse isdirected (by which he means the impulse towards self-preservation). Theseprimary things in accordance with nature (prima naturae) commend us toright reason (recta ratio), which then becomes more precious to us than theprimary things in accordance with nature themselves. Since this is true, andis accepted by all people endowed with uncorrupted judgement (qui iudiciosano sunt praediti), without the need for any further evidence (demonstratio),it follows that, when investigating according to natural law (in examinandoiure naturae), it is necessary to begin by considering the things that corre-spond to the (primary) principles of nature, and then to proceed to considerthose that are of higher value (dignius), even though they do not developuntil later. The latter should not merely be used if they happen to appear;they should be sought out by every effort (omni modo expetendum).50

49 The basic problem in Schofield’s argument appears to lie in the fact that the approach toiustitia, the doctrine of oikeiosis, which Schofield describes as ‘ethical’ rather than ‘metaphys-ical’, is founded on important anthropological conditions in the area of metaphysics andtherefore excludes clear differentiation of this kind. This is clearly shown in the way in whichGrotius uses and mixes the two approaches. However, even in some of the sources cited bySchofield, the two approaches are occasionally found together, inevitably resulting in contra-dictions in his line of argument. For instance, in one place he asserts with respect to the firstbook of De legibus, which serves as his example for the ‘metaphysical approach’, that the con-cept of nature is being used here in a manner equivalent to ‘objective reality’ and that humannature is irrelevant in this context (Schofield, ‘Two Stoic Approaches’, 205), while elsewherehe states that ‘the nature of man’ is the subject of the first book of De legibus (191).50 IBP 1, 2, 1, 2.

Grotius’s formulation of Cicero’s convenientia certainly appears some-what idiosyncratic, even if in principle it correctly reflects the Stoic formu-lation of the harmony between ratio and nature. That said, his description ofa notion of virtue that is somehow included in this harmony, as well as thehierarchical relationship between the prima naturae and honestum does in factcorrespond to the model presented by Cicero. The requirement of uncor-rupted judgement also corresponds to the established Hellenistic criteriafound in Cicero51 and needs to be seen in the context of the Stoic conceptmentioned by Cicero (ennoia), which is, “what natural and therefore veridi-cal thinking on a point would be like if reasoning were not subject to theusual (but unnatural) processes of corruption”.52

• Ciceronian honestum as the foundation of Grotius’s universal doc-trine of natural law

A certain deviation from Stoic orthodoxy, due to the influence of Cicero’saccount of Stoicism, is evident in Grotius’s treatment of virtue, which seemsno longer to represent the sole good. Grotius is prepared to accord a certainevaluative value to the primary things in accordance with nature (primanaturae). In orthodox Stoic ethics these primary natural things fell withinthe group of things that, although they might conventionally be regarded asgood or bad53 did not correspond to the limited Stoic notion of the good asthat which is morally good. For this reason they were irrelevant with respectto the Stoic summum bonum – which was to be found in virtue alone. Havingsaid this, Stoic orthodoxy did already develop criteria that made it possibleto give preference to some indifferent things over others, although they didnot abandon the basic position that these preferable indifferent things (adia-phora proegmena) were in no way a constitutive part of the good. Unlike thegood, whose specific character was necessarily advantageous, the indifferentthings were described as neither advantageous nor detrimental. Neverthe-less, since they were more or less in accordance with nature they might bedescribed as preferable from the point of view of nature because of the valueattributed to all things that were in accordance with nature (for instance,

51 The field required for consensus had already been restricted through the reference to thecorrupt nature of judgement.52 D. Obbink, ‘ “What all men believe – must be true”: common conceptions and consensioomnium in Aristotle and Hellenistic Philosophy’, Oxford Studies in Ancient Philosophy 10(1992), 223.53 Such as self-preservation, health or wealth; see Diogenes Laertius 7, 101ff. (= LS 58 A).

from the point of view of nature health is preferable to illness, because of thenatural impulse to self-preservation).54 As opposed to the absolute valueproper to virtue, the value of preferable indifferent things remained depen-dent upon circumstances (for instance, it might in certain situations be cor-rect to risk the objective, natural value of health in the interests ofmaintaining the good).

Grotius seems not to adopt the orthodox Stoic description of honestum asthe solum bonum, and seemingly abandons the fundamental distinctionbetween virtue, as the sole good, and the preferable indifferent things. Yethe does not renounce the Stoic hierarchical relationship between honestumand the preferable indifferent things (including the prima naturae and theimpulse to self-preservation). When conducting an examination under natu-ral law, he maintains that the first step is to consider that which correspondsto the preferable indifferent things, in other words the prima naturae. Hav-ing done this, however, one must according to Grotius move on to the morehighly valued honestum.55 In slightly softening the fundamental orthodoxStoic distinction between virtue and the preferable indifferent things, Gro-tius also abandons another major Stoic distinction, that between the Stoicwise man (sapiens) and the rest of humanity, the unwise (insipientes). How-ever Grotius’s view deviates only marginally from that of the Roman Stoics– he adopts indeed very much Cicero’s rendering of the Stoic doctrine. Justas Cicero’s Cato appears to counter Aristo’s extreme position, when he allo-cates a high status to preferable indifferent things on the grounds that thewhole living world would fall into disorder (confunderetur omnis vita) with-out a certain amount of differentiation between the adiaphora,56 Grotius alsodistinguishes between indifferent things that may be regarded as more orless appropriate. As we shall see, Grotius probably believed that this Roma-nized Stoic doctrine, as passed down by Cicero, was actually Stoic doctrinetout court.

54 According to Plutarch, Chrysippus was forced to admit that the preferable indifferentthings overlapped with those things described as ‘good’ in conventional language; see Plu-tarch, De Stoicorum repugnantiis 1048a (= LS 58 H). Aristo’s Stoic criticisms addressed thisconvergence, rejecting any distinction between preferable and unacceptable indifferent thingson the grounds that a distinction of this kind was tantamount to setting preferable indifferentthings at the same level as the good; see Sextus Empiricus, Adversus mathematicos 11, 64ff. (=LS 58 F).55 IBP 1, 2, 1, 2.56 Cicero, De finibus 3, 50.

In orthodox Stoic ethics, as opposed to the Ciceronian account Grotiusadopted, the wise man was the only person capable of arriving at telos andleading a life in eudaimonia – in harmony with nature. He was the only per-son capable of leading a virtuous life and attaining the summum bonumbecause he acted according to the right moral principles. Unlike a normalhuman being – insipiens – the Stoic sapiens was capable of more than just car-rying out appropriate actions (kathekonta), in other words, actions that canbe justified through reason and that pursue the preferable indifferent thingssuch as self-preservation. The Stoic wise man acted in a perfectly appropri-ate manner because his ‘right actions’ (katorthomata) pursued the good, weremorally right and were founded not merely on reason (ratio), as are theappropriate actions of other human beings, but on ‘right reason’, recta ratio(orthos logos), in which the wise man participated along with the Gods.57 Inearly Stoic philosophy this recta ratio of the wise man was regarded as beingidentical to natural law, which demanded perfectly appropriate or rightactions (katorthomata). The wise man, per definitionem, was the only humancapable of performing these.58 In Zeno’s early Stoic political philosophy thisresulted in an ideal society consisting solely of sapientes and Gods.59 Thismust have been an entirely Utopian society, since the Stoic wise man wassuch a rare phenomenon.60 It served the purpose of providing a philosophi-cal defence of the idea of natural justice and was not intended as a feasiblepolitical programme.61 The only law in force in Zeno’s Utopia was natural

57 See Stobaeus 2, 93, 14ff. (= SVF 3, 500 = LS 59 K); 2, 96, 18-97, 5 (= SVF 3, 501 = LS59 M).58 In ‘Natural Law and Natural Right in Post-Aristotelian Philosophy. The Stoics andTheir Critics’, Aufstieg und Niedergang der römischen Welt II 36.7, ed. W. Haase, Berlin 1994,4829-4834, P. Mitsis disputes the view that, under the early Stoa, natural law prescribeskatorthomata alone. This view is put forward by P.A. Vander Waerdt, ‘Philosophical Influ-ence on Roman Jurisprudence? The Case of Stoicism and Natural Law’, in Aufstieg und Nie-dergang der römischen Welt II 36.7, ed. W. Haase, Berlin 1994, 4854-4856. However Mitsisdoes admit that ‘only the wise man completely understands nature’s injunctions and [...] caninterpret the laws and act as a lawgiver. His reason and nature’s law are isomorphic’ (Mitsis,‘Natural Law’, 4831, note 46).59 Diogenes Laertius 7, 33; 7, 122ff.; 7, 131.60 Only one or two examples of a sapiens can be cited; Alexander von Aphrodisias, De fato199, 14-22.61 See the convincing argument presented in P.A. Vander Waerdt, ‘Politics and Philosophyin Stoicism. A Discussion of A. Erskine, The Hellenistic Stoa: Political Thought and Action’,Oxford Studies in Ancient Philosophy 9 (1991), 185-211. Plutarch describes Zeno’s Utopiansociety as a philosophical dream; Plutarch, De Alexandri magni fortuna aut virtute 329a-b (=LS 67 A).

law, in other words recta ratio, in which the only participants were Gods andwise men. Thus, in this early Stoic approach, natural law appears to havebeen limited to wise men.

Scholars differ on whether, or when precisely Stoic philosophy aban-doned Zeno’s Utopian ideas in favour of a political philosophy devoted tospecific issues and institutions, as evidenced above all in Cicero’s De repub-lica, De legibus and De officiis.62 However it is clear that from the time of Cic-ero, at the latest, there are cohesive sources on Stoic doctrine in the fields ofethics and political philosophy that go beyond a description of the state of aUtopian society made up of sapientes and Gods, endeavouring to clarify thepractical implications of Stoic ethics for normal people, in other words forinsipientes. Such a practical approach necessarily entailed a more rule-ori-ented and less agent-centered ethical outlook. In addition to widening thefield of application of Stoic natural law by extending recta ratio to the insipi-entes, it can be shown that Cicero was also interested in the substantive con-tent of the actual rules of natural law. This cannot be said of the early Stoa,at least not on the basis of the fragmentary evidence available to us, and mustmost probably be attributed to specific Roman concerns that were crucial toGrotius, too, especially the aforementioned treatment of Roman imperialismin the third book of Cicero’s De republica.63

Whatever our view of the early Stoa in this respect, it is likely that, fromDiogenes of Babylon onwards, natural law took the form of a para-legal sys-tem of general abstract norms, rather than residing in the particularist inter-

62 Paul Vander Waerdt identifies a transformation of this kind and sees – mainly based onCicero, De legibus 3, 13f. – Diogenes of Babylon as the critical figure who modified the politi-cal philosophy of the early Stoics, adapting it to the rival Academic and Peripatetic politicalphilosophies; see Vander Waerdt, ‘Politics and Philosophy’, 205-210. However, M.Schofield, The Stoic Idea of the City, Cambridge 1991, 93-103, does not regard Zeno’s ‘repub-licanism’ as a theory of natural law, maintaing that Chrysippus was the first thinker to pro-duce a theory of natural law by extending Zeno’s society of wise men to encompass a societyof rational living beings. This view equates natural law with normative reason; see Schofield,The Stoic Idea, 67-74. These discussions do not touch on the question of what the actual sub-stantive provisions of natural law might be.63 See also the Roman examples of kathekonta kata peristasin in time of war, in Cicero’s Deofficiis 34-40. Academic and Peripatetic philosophical influences might as well have played arole, see Vander Waerdt, ‘Politics and Philosophy’, 204f.

nal disposition of the Stoic wise man with respect to specific situations:64

“By Cicero’s time, however, the Stoic theory had been revised in such a waythat conduct in accordance with natural law was now held to be attainable bymoral progressors; accordingly, the strict early Stoic standard that onlykatorthomata, actions performed by an agent who possesses the sage’s rightreason, accord with natural law is now relaxed, and the basis is laid for theconception in which natural law is specifiable in a code of moral rules.”65

This means, with respect to Grotius, that he was able to draw on Cicero’smodel when he extended the normative scope of recta ratio, thereby univer-salising the application of natural law. As we shall show below, Grotius cer-tainly admits preferable indifferent things (prima naturae) alongside virtue(honestum) as criteria in examinando iure naturae. Thus at first sight heappears to attach a certain moral relevance to the former – contrary to theorthodox Stoic position. However, upon more detailed examination, this

64 Vander Waerdt, for instance, notes a reorientation in the Stoic doctrine of natural law. Heargues that the early Stoa did not believe that natural law or the wise man’s recta ratio consti-tuted any universal normative rules with substantive content, but rather dispositions relatingto the intentions of the wise man. It was not until the time of the younger Stoa that naturallaw consisted of general abstract norms established on the model of legal rules and furnishedwith substantive content. Natural law, he writes, is ‘constituted by the sage’s rational disposi-tion, not by a code of rules or legislation’. For this reason it is ‘a dispositional rather than rule-following model of natural law’, Vander Waerdt, ‘Zeno’s Republic and the Origins of NaturalLaw’, in The Socratic Movement, ed. P.A. Vander Waerdt, Ithaca 1994, 287. Cf. also VanderWaerdt, ‘Philosophical Influence’, 4854f. This view is opposed by Phillip Mitsis, in particu-lar, who postulates universal rules following the model of legal norms even in the natural lawideas of the early Stoa. Based on the beginning of Chrysippus’s Peri Nomou, as passed downto us in Marcian’s Corpus iuris civilis (Marcian inst. 1 = LS 67 R), Mitsis, in ‘The Stoics andAquinas on Virtue and Natural Law’, The Studia Philonica Annual 15 (2003), 42, argues‘Chrysippus does not claim that natural law prescribes to animals whose nature is politicalhow and how not they should perform actions or with what sorts of inner attitudes. He main-tains that natural law prescribes what they should and should not do.’ Cf. also Mitsis, ‘Natu-ral Law’, 4835-4841. Although Mitsis’s argument is certainly convincing, it should be notedthat we do not have any early Stoic sources corroborating the substantive content of thesenatural law norms; for this reason the precise content of Chrysippus’s norms remain unclear.Not until the time of Cicero do we find statements relating to the content of natural lawnorms (for example, from Diogenes of Babylon, whose statements have been passed on byCicero, see Cicero, De officiis 3, 51-57). Vander Waerdt, ‘Philosophical Influence’, 4854,appears to contest the Stoic origins and the natural law character of these statements (as wellas the moral norms discussed by Seneca in Epistulae 94-95) when he states that ‘no Stoicaccount of the precepts of natural law has survived’.65 Vander Waerdt, ‘Philosophical Influence’, 4855. Vander Waerdt regards Antiochus as thesource of this change in Stoic theory.

conclusion proves to be incorrect. Indeed, it becomes clear that Grotius’sstand with regard to virtue, and with it justice, is founded on a reception ofCicero’s doctrine of oikeiosis as described above, and is eminently Stoic incharacter. For Grotius, virtue holds a superordinate position and – in thecase of competing rules – represents a clear barrier in the Stoic sense againstactions that pursue the prima naturae.

• Just war as Stoic katorthoma

Grotius’s treatment of virtue and the self-preservation impulse as criteria inexaminando iure naturae is indeed strongly influenced by Cicero. A keyexample of this, and of the importance of honestum in this process, is his dis-cussion of the extent to which war is in accordance with natural law. Therelevant writing is to be found at the beginning of the second chapter of thefirst book in De iure belli ac pacis. Our analysis of this passage in the sectionthat follows should clarify the precise relationship between prima naturaeand honestum in Grotius’s thinking and should thereby shed light on the pre-cise status of the self-preservation impulse in his theory of natural law.

When discussing the basic legality, or justice, of waging war – an bellareunquam iustum sit –, which is an issue of fundamental importance for all hisworks on natural and international law, Grotius substantiates his argumentby stating that war does not represent a fundamental contradiction to naturallaw. The first relevant criterion in a closer examination of this relationship,it is true, are the primary things in accordance with nature. Grotius dis-cusses the question of whether war contradicts the primary things in accord-ance with nature (prima naturae) and concludes, on the evidence of poets andphilosophers – Ovid, Horace, Lucretius, Xenophon, Galen und Aristotle –that, rather than contradicting war, the prima naturae actually support it:

In the primary things in accordance with nature [prima naturae] there is nothing which isopposed to war; rather, all points are in its favour. The end and aim of war being the pres-ervation of life and limb, and the keeping or acquiring of things useful to life, war is inperfect accord with those primary things in accordance with nature. If in order to achievethese ends it is necessary to use force, no inconsistency with the primary things in accord-ance with nature is involved, since nature has given to each animal strength sufficient forself-defence and self-assistance. ‘All kinds of animals’, says Xenophon, ‘understand somemode of fighting, and they have learned this from no other source than nature.’66

From this text it is clear that, like the Stoics, Grotius associates the primarynatural things with the impulse to self-preservation. According to Grotius,both the purpose of war – the preservation of life and limb – and the reten-

tion or acquisition of things useful for life are completely in accordance withthe primary natural things. The need to use force does not run counter tothe primary things in accordance with nature, since this is the very reasonwhy all living beings have been endowed with enough physical strength todefend themselves. Clearly Grotius includes war amongst the Stoic kathek-onta (or appropriate actions) that pursue things in accordance with naturesuch as health (for Grotius the vitae membrorumque conservatio) or, ofslightly lower ranking, property67 (for Grotius the rerum ad vitam utiliumaut retentio aut acquisitio). Although irrelevant with respect to the good,these primary things in accordance with nature are still preferable to otherindifferent things (proegmena adiaphora).

The inclusion of war amongst appropriate actions in the Stoic sense(kathekonta) is also supported by the authorities cited by Grotius, whichobviously consist of non-Stoics. In his quotation from Xenophon’s Cyrupai-deia, as in the quotations from Ovid, Horace, Lucretius, Galen and Aristo-tle, human beings are compared to animals and equated with them when itcomes to warlike actions. Since war pursues self-preservation and thus theprima naturae of oikeiosis, in other words objects that all living beings natu-rally pursue, it belongs to the category of actions that are in accordance alsowith the nature of human beings, and indeed of all living beings: cum ani-mantibus singulis vires sint a natura attributae. Grotius’s idea of war as anaction not limited merely to human beings, and in accordance with thenature of the living being carrying out the action, is absolutely in line withthe criteria for the Stoic kathekon.68

Nevertheless, as a Stoic kathekon, war is in accordance with natural law forGrotius only to the extent that it does not contradict natural law, and this iswhere the crucial Stoic differentiation between human beings and other liv-ing beings comes in; although the reason why it does not contradict naturallaw is because it does not belong to natural law in its proper sense. With

66 IBP 1, 2, 1, 4: Inter prima naturae nihil est quod bello repugnet, imo omnia potius ei favent.nam et finis belli, vitae membrorumque conservatio, et rerum ad vitam utilium aut retentio autacquisitio, illis primis naturae maxime convenit: et vi ad eam rem si opus sit uti, nihil habet a primisnaturae dissentaneum, cum animantibus singulis vires ideo sint a natura attributae, ut sibi tuendisiuvandisque sufficiant. Xenophon: [...] omnia animantium genera pugnam norunt aliquam, quamnon aliunde quam a natura didicerunt.67 Diogenes Laertius 7, 101ff., on the proegmena adiaphora.68 See the Stoic definition of kathekon in Stobaeus 2, 85, 13-2, 86, 4 (= SVF 3, 494 = LS 59B). Even plants can carry out kathekonta, see Diogenes Laertius 7, 107.

respect to war as kathekon, Grotius states that certain things non proprie, sedreductive are said to belong to natural law merely because there is no contra-diction between them and natural law.69 However, the only actions that aretruly in accordance with natural law are those actions that correspond tohonestum and this, in its turn, means they must be prescribed by recta ratio.Initially, war as a kathekon, as a means of self-preservation, is irrelevant withrespect to honestum since recta ratio, in other words natural law in its realsense, makes no statement with respect to adiaphora, to which self-preserva-tion undoubtedly belongs. This also corresponds precisely to the Stoic doc-trine of the category of appropriate actions (kathekonta) which, if weconsider the actions carried out only by human beings, comprises thoseactions that, as perfectly appropriate or right actions (katorthomata) consti-tute a special case of kathekonta. These are morally right actions associatedwith virtue (honestum), which can be performed only by Stoic wise men.

It is important to note the careful distinction made by Grotius in thisanalysis of whether war is compatible with natural law. Like the Stoa, he dis-tinguishes between actions that are relevant with respect to virtue (honestum)and thus with respect to natural law in its true sense, on the one hand, andmorally irrelevant actions on the other. As regards natural law in its truesense, Grotius regards war quite simply to be irrelevant, to the extent that itpursues self-preservation, which is indifferent with respect to virtue. This isevident in Grotius’s description of virtue and the relationship between hon-estum and natural law that results from this notion of virtue.70 Grotius pre-sents various different concepts of virtue (honestum). In some places it consistsof a single point, as it were, with even the slightest deviation from this pointresulting in wrong (vitium). In other places its scope is less restricted, and

69 IBP 1, 1, 10, 3: Ad iuris autem naturalis intellectum, notandum est, quaedam dici eius iuris nonproprie, sed ut scholae loqui amant, reductive, quibus ius naturale non repugnat, sicut iusta mododiximus appellari ea quae iniustitia carent. Actions in accordance with the merely conventionalius gentium would fit this characterization.70 IBP 1, 2, 1, 3: Hoc ipsum vero, quod honestum dicimus, pro materiae diversitate, modo (ut itadicam) in puncto consistit, ut si vel minimum inde abeas, ad vitium deflectas; modo liberius habetspatium, ita ut et fieri laudabiliter, et sine turpitudine omitti aut aliter fieri possit, ferme quomodoab hoc esse ad hoc non esse statim sit transitus; at inter aliter adversa, ut album et nigrum, reperireest aliquid interpositum, sive mixtum, sive reductum utrinque. Et in hoc posteriori genere maximeoccupari solent leges tum divinae, tum humanae, id agendo, ut, quod per se laudabile tantum erat,etiam deberi incipiat. Supra autem diximus, de iure naturae cum quaeritur, hoc quaeri, an fierialiquid possit non iniuste: iniustum autem id demum intelligi quod necessariam cum natura rationaliac sociali habet repugnantiam.

an action may be carried out in a praiseworthy manner, omitted withoutbeing unpraiseworthy, or even carried out in another manner. The rule oflaw that is subject to the will concerns itself with this second notion of virtue– honestum in its wider scope. This applies both to human laws and to lawsimposed by God, which are the legal sanctions for actions regarded as prai-seworthy or virtuous in the second sense. Yet natural law, in its true sense,relates to the first, more narrow conception of virtue – in other words,honestum in the sense of a single ‘point’ where there is no transition betweenvirtue and wrong, as in the case of Stoic honestum.

With respect to war this means that, if war is to correspond to the nar-rower conception of honestum and thus to natural law in its narrower sense, itmust also, in a second step, meet the criteria of recta ratio. War that is com-patible with natural law in this narrower sense cannot be a kathekon alone,but it must satisfy the repertoire of just causes for war as presented by Gro-tius in the second book of De iure belli ac pacis. For the purposes of this arti-cle it is sufficient to draw attention to the distinction that Grotius makesbetween just actions in the broader sense and actions corresponding to natu-ral law in the narrower sense, and to note the close relationship between thisdistinction made by Grotius and the Stoic differentiation of kathekonta undkatorthomata. Only wars waged because of just causes are in accordance withnatural law in the narrow sense and may qualify as katorthomata, whereasmere self-preservation does not suffice.

• 3. Conclusion

It could be shown in the present article that Grotius derived the Stoic pre-suppositions for his universal natural law from Cicero’s description of thedoctrine of oikeiosis in the philosophical works De legibus, De finibus bonorumet malorum and De officiis. Grotius, it is true, chose to call this originallyStoic doctrine by the term appetitus societatis, avoiding Cicero’s translationconciliatio, and identified the term only from the 1631 edition onwards withthe Greek technical term oikeiosis. But there cannot be any doubt as to theconcept’s Ciceronian pedigree. As in Cicero, the function of oikeiosis in Gro-tius’s work is to provide the anthropological justification for a universal nat-ural law that is no longer restricted to the Stoic wise man, as it was inorthodox Stoic thought.

As Cicero’s successor, Grotius aligns individual human developmentwith a kind of two-stage oikeiosis process. This leads him to endow everyadult human being with recta or perfecta ratio, rather than restricting it to the

sapiens, as did the orthodox Stoics.71 Thus the authority for Grotius’s natu-ral law in terms of form is Cicero and his recta ratio, while the substantivecontent of the concept is the virtue of justice (honestum) defined in the nar-row Stoic sense of the word.72 Therefore war, as an action whose purpose isself-preservation, thus constituting a Stoic kathekon, does not in fact contra-dict Grotius’s idea of natural law, since an action of this kind is irrelevant fornatural law in its narrower sense.

However, and more importantly, the question of whether a specific war iscompatible with natural law in the narrower sense must, according to Gro-tius, be examined in accordance with recta ratio, which does not admit self-preservation as a sufficient criterion. Although Grotius bases his system ofnatural law norms developed in De iure belli ac pacis on anthropological pre-suppositions, these are not predominantly the impulse to self-preservation,but rather the anthropological characteristics outlined by the Stoics in theirdoctrine of oikeiosis. They manifest themselves, above all, in mankind’ssocial disposition that arises out of his essentially rational nature. Tuck’sview that self-preservation is the foundation of Grotius’s natural law mustthus be contested.73 The only criterion taken into account under recta ratio isthe substantive one of justice. This means that, for Grotius, self-preserva-tion is in accordance with natural law only to the extent that such self-pre-servation is just.

71 Although Cicero’s definitions continue to equate natural law with the recta ratio of theStoic wise man (see Cicero, De legibus 1, 18f.; 2, 8), he removes all generic distinctionsbetween human beings: Itaque quaecumque est hominis definitio, una in omnis valet. Quod argu-menti satis est nullam dissimilitudinem esse in genere. Cicero, De legibus 1, 29f. See VanderWaerdt, ‘Philosophical Influence’, 4872, where he states, with respect to Cicero: ‘[...] naturallaw is now the prescription not strictly of right reason, which only the sage possesses, but ofthe rationality in which all human beings share.’72 Certain actions, such as polygamy, do not contradict natural law in its true, narrow sense.They contradict only the broader sense of honestum, which is the subject of positive law; seeIBP 1, 2, 1, 3.73 See Tuck, ‘The “Modern” Theory’, 113.