ABSOLUTE FREEDOM OF CONTRACT: GROTIAN LESSONS FOR LIBERTARIANS

Abstract

Libertarians often rely on arguments that subordinate the principle of liberty to the value of its economic consequences. This invites the question of what a pure libertarian theory of justice—one that takes liberty as its overriding concern—would look like. Grotius's political theory provides a template for such a libertarianism, but it also entails uncomfortable commitments that can be avoided only by compromising the principle of liberty. According to Grotius, each person should be free to decide how to act as long as her actions do not violate the equal liberty of others. According to this principle, however, people are free to enter any contract and alienate any rights, permitting even contracts of slavery or the alienation of rights of bodily integrity. Libertarians can escape this commitment to absolute freedom of contract only by adopting ad-hoc amendments to the principle of liberty.

Acknowledgments

thanks Ib Martin Jarvad, Paul Guyer, Samuel Freeman, Jeffrey Friedman, Jerome Nance, and Kate Moran for comments on drafts of this essay and conversations about Grotius and his relevance for contemporary political theory and practice.

Notes

1. The quote is from the Commentary on the Law of Prize and Booty, which Grotius wrote in the first decade of the seventeenth century, but which was not published until long after Grotius died. A part of the Commentary was published as Mare Liberum in 1609.

2. For Grotius, all original acquisition must be justifiable to everyone; further transfers are then justified by the free consent of the parties to the transaction. For discussions of Grotius's theory of property see Salter 2001 and Araujo 2009.

3. I focus here on the libertarian strand in Grotius's admittedly much more complex theory of justice. I have argued elsewhere (von Platz 2008) that Grotius in fact affirms a forward-looking conception of justice that conflicts with the libertarian strand.

4. A claim that, of course, must be taken with a grain of salt. For discussions of the historical importance of Grotius see Edwards 1981 (141–48), Haakonssen 1985, Schneewind 1998 (66, 72–73), and Tuck 1982 and 2001 (ch. 3 and conclusion).

5. On the plurality of agents of war and types of war, see Grotius 1625a, book I, chs. 1 and 3.

6. I am simplifying Grotius's distinctions and overlooking how these changed these over time; see Tuck 1982 (87–89 and 96–100) for a more detailed treatment.

7. Especially in his earlier works, Grotius does talk about an obligation to prevent and correct wrongs. In general, the claims I make in this section do not reflect what Grotius wrote, but what follows from what he wrote. Thus I speak of “a Grotian” rather than Grotius.