But treaty of the society was regarded by many adepts of natural law not as a historical fact but as a logic ground, hypothesis for explaining the difference between state and natural condition, i.e. between state and anarchy for explaining one or the other form of state, ex. monarchy (Gratius), democratic republic (Rousseau). It must be added that in those historical conditions the theory of the treaty of the society had progressive meaning for struggle with feudal theories, ex. theocratic concept of state origins and patrimonial theory, which viewed the state as property of the monarch.
A statement about the dualism of law is common for the treaty theory. It differentiates the natural and positive law, i.e. given by the legislation of a state . Natural law is prior to society and state; positive law - to creating a state.
This dualism in notions of law is also depraved feature in the theory of natural law, because the metaphysical way of thinking, common for bourgeois ideologists, was not able to explain the unsteadiness and variety in the law.
For the ideologists of bourgeoisie it is common to consider law and state as an expression of the people's will. It is of course wrong, from or point of view. But in those historical conditions of struggle against feudalism and absolute monarchy, this illusion had certainly a progressive sense, because with the help of this idea bourgeoisie was achieving abolition of the system of privileges and setting up a representative system in state system.
Hugo Gratius is one of the earliest bourgeoisie ideologists and a representative of school of natural law. His views were formed at the time when the process of formation of bourgeois state in Netherlands had not finished yet, and the British one was only starting. It must be noted that the struggle of the Dutch against Spanish king Phillip II made a great influence on Gratius. The problems of international law, examined by him were set up by the bloody 30-years war, competition between Holland, England and Spain and their fighting for the leadership at the sea.
It must be noted that in the system of Gratius's views there is no such political sharpness as is common for Rousseau or even for Loch. He expresses the interests of such groups of bourgeoisie, which were able to make a deal with feudalism. He is a monarchist according to his beliefs and opposes the idea of people's sovereignty. He also doesn't want to throw away religious world outlook.
Hugo Gratius differentiates law as natural and voluntarium. Natural law according to him is a deed, which is considered morally disgraceful or morally necessary, according to whether it contradicts the nature or not; that's why this deed is forbidden or allowed by the God himself, the creator of the nature." Natural law is "…so stable that cannot by changed by God himself." He also spreads the natural law to everything, which is dependable from the human's will, and also consequences, which flow from the acts of the human's will. Natural law sometimes depends on the time. For example, the right to private property is ser up by the human's will and that's why natural law prohibits the theft of it. That is, the theft is prohibited by the natural law.
The common possession was natural until private property was established. The realization of your right with the help of force was common before setting up civil laws.
The law, set up by will, according to Hugo Gratius can be human or godly law. In its turn, human law can be either internal law of a state or human's law in a narrower and at the same time broader meaning. Internal law of the state flows from the civil power, ruling in a state. Human's law in a narrower meaning does not flow from it. As for human's law in a broader meaning, it is the law of peoples (jus gentium), which has a power from the will of all living peoples or most of them. Speaking of a law set up by God Gratius asserts that it flows right from the God's will.
Of course, Hugo Gratius according to his metaphysical outlook asserts that no society is possible without a law. The law is not a result but the prior event, flowing from the human nature. From the essence of law, which is a desire to communication, flows a range of necessities: not to touch not your own belongings, keep a promise, pay for inflicted damage, etc. This antihistorical outlook on the essence of law and the appearance of some of it aspects was common for those historical conditions and was necessary for bourgeoisie as an ideological weapon in a struggle against the feudal system for bourgeois law order.
Hugo Gratius defines the law into features and separates it into the law of domination and the equality. In his book, mentioned above, he says that a "law is a thing that doesn't contradict justice. What contradicts justice is against the nature of creatures who possess mind and communication." "Justice can be dualistic.
a) Justice is the relation between the equal (brothers, friends, citizens and allies, etc.). This is a law of equality.
b) Justice is the relation between the dominant and submissive (father and children, master and slave, God and people, etc.). This is a law of dominance."
From all this he excludes the law concerning individuals. It is a moral quality common for personality, according to which it is possible to possess something or to act in one way or another. This law is adjacent to personality, although it is often connected with things. Law ability is a law itself according to Hugo. This law is a power upon oneself (freedom) and upon other people (father's or master's powers), property (complete and incomplete), the right to demand, etc. Law ability is divided into lower (personal use) and higher (adjacent to all humankind for the good).
So Hugo Gratius appears to have a division of law into natural and voluntarium (positive), which is common systematic mistake for natural law concept. It is also common for him to have metaphysical views on the justice in relation between brothers, people. He sets in the same row the father, master, king and God, calling them all dominants. That means that Gratius does not differentiate economic, ideological and state relations. But the essence of law, given by Hugo Gratius, is objectively propagandizing the eternity of slavery. It is common for Hugo Gratius to be a supporter of the monarchy and even more than that: in his views, the medieval jurisprudence remains.
Although a state is according to definition an act of creative activity and the best form ofpeople's unification, based on a treaty, i.e. supposing the sovereignty of people, Gratius denies the fact that people possess sovereignty. He does not agree that people's will is higher than the will of a monarch. Considering that people were once sovereign he is sure they passed their sovereignty freely to the people they elected. So he stands for medieval patrimonial theory, according to