근대법의 기독교적 기원 : 그로티우스의 권리주의와 의사주의 자연법론

In the midst of anomie condition after the collapse of universal order of medieval Europe, Hugo Grotius wrote his opus magnum De Jure Belli ac Pacis (1625) in the desire to establish the rule of law in an international society. Accepting the right-based jurisprudence which among legal scholars had already been on a firm foundation in the early seventeenth century, Grotius found the just causes of war in the injury to rights and presented a systematic list of natural rights even the heathens could consent to. According to him, natural rights lie in the laws of property, contract, unjust enrichment, and delict, all of which are ultimately based on human will. Even proprietary rights have been created by explicit or implicit agreements among human beings. A perfect contractual obligation arises just by the meeting of minds between the promisor and the promisee, which transfers the ownership of the object without delivery except when a special term has been otherwise agreed. Grotius’ theory of law has had a great influence in the formation of modern legal systems. As a moderate Protestant, Grotius had a theological anthropology according to which human beings share with God the capacity of intellect, reason and free will, as they were created in the image of God and given the authority to dominate things inferior to them. Therefore the European-Christian tradition still seems to reside in the background of modern legal science that is in no small debt to Grotian legal theory.