Natural law theories in the early Enlightenment

In this pioneering and ambitious study T. J. Hochstrasser analyses and explains the development of natural law theories in Germany between Grotius and Kant. Particular attention is paid to Samuel Pufendorf and his followers, who incorporated many of the key theoretical insights of Thomas Hobbes into German political theory, and evolved a natural law theory based on human sociability and a self-sufficient concept of human reason. In so doing, they fostered a new methodology in German philosophy, eclecticism, which remained a major creative force in intellectual life down to the emergence of Kantian idealism. This intellectual tradition is recovered through a detailed analysis of the so-called ‘histories of morality’, which assessed contemporary innovations in ethics and political philosophy by describing the progress of the discipline since ancient times, and thus constitute the first serious histories of political thought. Equal consideration is also given to rationalist attempts by Leibniz and Wolff to defend traditional scholastic natural law against Hobbes and the followers of Pufendorf, and thus the work offers a detailed account of the range and importance of natural law theories within Germany in the era of enlightened absolutism, up to and including the onset of the Kantian revolution in moral philosophy. .  .         is Lecturer in International History at the London School of Economics and Political Science.

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   

NATURAL LAW THEORIES IN THE EARLY ENLIGHTENMENT

           Edited by Quentin Skinner (General Editor), Lorraine Daston, Dorothy Ross and James Tully The books in this series will discuss the emergence of intellectual traditions and of related new disciplines, The procedures, aims and vocabularies that were generated will be set in the context of the alternatives available within the contemporary frameworks of ideas and institutions. Through detailed studies of the evolution of such traditions, and their modification by different audiences, it is hoped that a new picture will form of the development of ideas in their concrete contexts. By this means, artificial distinctions between the history of philosophy, of the various sciences, of society and politics, and of literature may be seen to dissolve. The series is published with the support of the Exxon Foundation. A list of books in the series will be found at the end of the volume.

NAT URAL L AW THEORI ES IN THE EAR LY E N LI G H T EN M E NT T . J. HO CH S T R A SSE R London School of Economics and Political Science

          The Pitt Building, Trumpington Street, Cambridge, United Kingdom    The Edinburgh Building, Cambridge CB2 2RU, UK 40 West 20th Street, New York, NY 10011-4211, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de Alarcón 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org © T. J. Hochstrasser 2004 First published in printed format 2000 ISBN 0-511-04063-6 eBook (netLibrary) ISBN 0-521-66193-5 hardback

For my parents and in memory of my grandparents

The thing that hath been tomorrow is that which shall be yesterday. Our stories of today need not have taken place in the present. This one began more than three hundred years ago. So did many other stories. Every story set in Germany goes back that far. Gu¨ nther Grass, The Meeting at Telgte () Cat and Mouse and Other Writings, ed. A. Leslie Willson, trans. R. Manheim, The German Library, vol.  (New York, ), p. 

Contents

Preface

page xi

 Introduction: natural law and its history in the early Enlightenment



 Socialitas and the history of natural law: Pufendorf’s defence of De Jure Naturae et Gentium



 Voluntarism and moral epistemology: a comparison of Leibniz and Pufendorf



 Christian Thomasius and the development of Pufendorf’s natural jurisprudence



 Natural law theory and its historiography in the era of Christian Wolff



 Conclusion: the end of the ‘history of morality’ in Germany

  

Bibliography Index

ix

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Preface

This book began as an account of the genre of ‘histories of morality’, written in French and German in the early Enlightenment, as prototypical histories of political thought. I have hoped to show how what began as a genre of radical rewriting of conventional understandings of the history of ethics and politics at the end of the seventeenth century succeeded in establishing itself as a new orthodoxy. In other words, on one level, this is a case study of the use of intellectual history to furnish arguments of legitimation and self-defence for groups of political thinkers partially or fully excluded from participation in their contemporary orthodox, established structures of both high politics and official higher education. From this standpoint the largest issues under consideration here concern the function of history within the discourse of natural law (taking the arguments of Leo Strauss in a different direction) and the use of history writing as a literary, academic and polemical device within the ‘republic of letters’. Thereby I hope to suggest a more plausible relationship between the early Enlightenment and alleged processes of ‘secularisation’ than is sometimes depicted. As the research and writing of this project has developed over a number of years, it has become clear that the role of the histories was more complex than this, and also deeply implicated in the shaping of the key conceptual redefinitions of voluntarist (Pufendorf and Thomasius) and rationalist (Leibniz and Wolff ) natural law theories. Thus alongside the first historiographical narrative I have attempted to tell a second one, organised around the concept of eclecticism, in which the full impact of a fresh historical awareness of the history of philosophy is revealed within the doctrinal development of German natural law theories. This decision to focus on a more detailed account of the reasons for the bifurcation of the voluntarist and rationalist traditions has led me necessarily to lengthen the chronological coverage of the volume to include Kant and his early followers. But also, and in some xi

xii

Preface

ways to my regret, I have been compelled to focus more single-mindedly on the German context and narrative, and to omit detailed consideration of the French-language ‘histories of morality’ and theoretical writings associated with them produced by Huguenot writers of the Refuge. While such a comparative, not to say cosmopolitan, perspective would have been beneficial, it is outweighed finally by the radical differences between the theological and political settings of the French and German contributors, which also underscore the character of their substantive contributions. I hope therefore to develop in a separate study an account of the distinctive contribution of the Huguenot diaspora to the development of natural law theories that prioritised rights of conscience. In particular, Bayle, Barbeyrac, Burlamaqui and their associates produced bth highly imaginative readings of Grotius, Pufendorf and Malebranche, together with a distinctive adaptation of natural law theories to explain and legitimate their own particular providence after the repeal of the Edict of Nantes. In ways that remain to be fully delineated, their interpretations of the history of philosophy and contemporary European history fused and entangled creatively with natural law theories to help to shape both the mature French Enlightenment and the official channels of legal and higher education in France. In a work that has involved the study of texts in English, Latin, German and French it is right that I should make my policy on translations clear from the outset. All translations are my own unless otherwise specified. Where I have used an existing translation I have tried to adopt a version as near to the period of the original as possible, unless a more modern translation is clearly to be preferred on grounds of accuracy. In preparing and fine-tuning my own translations I owe much to the linguistic expertise of both Hugo Tucker and, particularly, Ingrid De Smet, who guided me in teasing coherence and convincing style out of some peculiarly rebarbative and euphuistic Baroque Latin. It remains to thank the many people who have generously assisted me with their advice, learning and friendship in the long course of this book’s composition. Richard Tuck’s work first inspired me to attempt research in this field, and he has played an important part throughout both as supervisor of my doctoral thesis and as a continuing source of stimulus and suggestions thereafter. Quentin Skinner has also been greatly supportive and reassuring at critical moments. Knud Haakonssen gave me very helpful advice on issues both large and small, and I have benefited substantially from the detailed comments of Patrick

Preface

xiii

Riley, Istva´ n Hont and John Robertson, the last two as examiners of my doctoral thesis. For Cambridge University Press, Richard Fisher has been a remarkably patient, efficient and always sympathetic editor. I am also glad to able to acknowledge the sharp-eyed vigilance of Hilary Scannell as copy editor. I have been very fortunate to work in a series of most rewarding research environments, and for this privilege I thank the Master and Fellows of both Corpus Christi College and Downing College, Cambridge, the British Academy (for the award of a postdoctoral fellowship), and the electors to the Carlyle Research Fellowship, which I held at Keble College, Oxford. At the London School of Economics I must also record a debt to two contrasting but equally searching scrutineers: Mia Rodrı´guez-Salgado, who subjected the work to robust, but constructively helpful appraisal, and Janet Coleman, who has done the same less explicitly within the framework of the seminar on the history of political thought that we jointly convene at the Institute of Historical Research. Among researchers of my own generation, I am especially grateful to Jon Parkin, Peter Schro¨der and Thomas Ahnert for criticism and camaraderie in equal measure. While it is not possible to record all the various friends and colleagues who have assisted me towards sharper analysis or better understanding of particular issues, sometimes perhaps without realising it, they would certainly have to include the following: Derek Beales, Lucas van Beeck, John Dunn, Charles Harpum, Ian Harris, John Hatcher, Ian Hunter, Chris Laursen, David Laven, Cadoc Leighton, Michael Lobban, Peter Mathias, Paul Millett, Harry Mount, Catherine Moutell, David Parrott, Athene Reiss, Ritchie Robertson, Larry Siedentop, Jonathan Steinberg, Matthew Strickland and Simone Zurbuchen. For the omissions, inaccuracies and infelicities that may remain I am fully responsible. My greatest debts are recorded in the dedication.

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 

Introduction: natural law and its history in the early Enlightenment

   This study broadly aims to investigate the influence exercised by the theories of natural law developed by Grotius, Hobbes and Pufendorf on the early stages of the Enlightenment in Germany. When the notion of ‘influence’ is applied to a long span of time and to a large number of writers it can easily deteriorate into nothing more than the correlation of superficially similar doctrines, unless there also exists a range of contemporary sources which discuss self-consciously the relation of contemporary practice to past achievement.¹ Such sources exist for this topic in the form of a series of ‘histories of morality’, published between approximately  and  in both France and Germany.² These were written either as separate works or as introductions to editions of the works of recent writers on natural law theory. Their stated purpose was to provide an account of how the seventeenth-century achievement in natural law was progressively refined and revised, pre-eminently so by Pufendorf, and to relate that achievement to previous discussion of natural law by Christian and Classical writers. By studying these histories we are able to expose to view the fierce theoretical disagreements ¹ For suggestions as to how the use of the concept of ‘influence’ might be refined see J. M. Dunn, ‘The identity of the history of ideas’, in Political Obligation in its Historical Context (Cambridge, ), pp. –, and the preface to Q. R. D. Skinner, The Foundations of Modern Political Thought, vol. I, (Cambridge, ), pp. ix–xv. ² The ‘histories of morality’ (see the appendix to this chapter) may be conveniently listed in their chronological order of publication. Some of these texts duplicate each other or are so close as to offer little scope for separate interpretation. Therefore, not all of them are cited and discussed in the text. The form and content of these histories has been the subject of analysis in a series of works by Richard Tuck which have provided the impetus and inspiration for the present study, notably ‘The ‘‘modern’’ theory of natural law’, in A. Pagden (ed.), The Languages of Political Theory in Early Modern Europe (Cambridge, ), pp. –. Other relevant discussions include the final chapter of R. F. Tuck, Natural Rights Theories: their Origin and Development (Cambridge, ), and his ‘Grotius, Carneades, and Hobbes’, Grotiana, new series,  (), pp. –.





Natural Law Theories

between the exponents of natural law theories in Baroque German culture and thus recover the parameters of the debate contextually in a way that is not possible from the main texts viewed in isolation. This book therefore sets out to describe and analyse this neglected historiographical genre with the aim of using its estimation of the ‘modern’ natural law tradition to trace with more precision how and why that tradition was valued highly in the early Enlightenment. But over and above their use as an interpretative tool for the Enlightenment, these histories also have some claim to be regarded as the first recognisable histories of political thought, and therefore are deserving of examination and analysis in their own right. It may be said, therefore, that this study impinges upon three distinct subject areas in roughly equal proportions: it attempts to identify the continuing importance in the eighteenth century of discussion of a natural law centred on human sociability, and constructed by human reason; it aims to delineate the early stages in the development of self-conscious reflection on the history of philosophy in general, and the historiography of moral philosophy in particular; and finally, it indicates ways in which overviews of the German Enlightenment have largely failed to encompass contemporary accounts of what were the important innovations in the moral philosophy of that time. In particular it is urged that the lively debates over the interpretation of Pufendorf’s revisions to natural law theory fostered a new methodology in German philosophy – eclecticism – that was used, even by many who acknowledged few other debts to Pufendorf, as a method for unravelling and reconstituting the convoluted and tortuous relationship between German Protestantism and Aristotelianism. It is also argued that the main fruit of this new approach was the clear disciplinary separation that emerges in the north German Protestant universities in the late seventeenth and early eighteenth centuries between the respective spheres of divine law and human natural law, so that the latter was no longer regarded as an inferior subset of the former. While the majority of writers of all persuasions still conceded that natural law was created in part by God’s will, much more controversy revolved around the question of whether the obligation of natural law derived merely from this narrowly voluntarist source or as much from moral values that God and men held in common as a result of the resources of moral insight placed in man through the gift of reason.³ ³ On this issue see K. Haakonssen, Natural Law and Moral Philosophy: from Grotius to the Scottish Enlightenment (Cambridge, ), p. .

Natural law and its history



Much depended on this issue, as Leibniz above all perceived, because the fragile synthesis between Protestantism and Aristotelianism that had been put in place by Melanchthon in the sixteenth century (and since then maintained) relied for its coherence upon man being made in the image of God.⁴ Protestant Aristotelianism had never fully separated itself from its scholastic roots; indeed, it retained them in a modified form down to the time of Christian Wolff and beyond, continuing to provide an important counterpoise to the work of Pufendorf and his followers that became stronger as the implications of the separation of ethics from moral theology emerged. Unenviable alternatives presented themselves: on the one hand, without reliance on revealed religion as a guide to God’s law (from which man had departed at the Fall) theological voluntarism loomed as the sole basis of natural law. But the retention of such key scholastic notions in moral epistemology came to seem equally unappealing as well as philosophically threadbare once the achievements of Descartes and Hobbes had percolated into Protestant university life, and the continuing tensions between neo-scholastic ethics, and the notions of faith and grace that had in any case always been central to the salvific mission of German Lutheranism, were further perpetuated. It was the achievement above all of Samuel Pufendorf (–) and his most distinguished follower, Christian Thomasius (–), to have evolved a tortuous path through this intellectual minefield towards what they believed was a true science of natural law, that used Stoic ethics to reconcile the voluntarism of Hobbes with a diminished but nevertheless real role for divine positive law. This self-evaluation, recorded and recovered for us in the contemporaneous ‘histories of morality’, was challenged at every point not only by clerical opponents but more importantly by the neo-scholastic political theories of Leibniz ⁴ See ibid., pp. –. The best brief introductions to the German debate and Pufendorf’s formative contribution to it are contained in the introductory material to S. Pufendorf, On the Duty of Man and Citizen According to Natural Law, ed. J. Tully, trans. M. Silverthorne (Cambridge, ) and S. Pufendorf, On the Natural State of Man, ed. M. Seidler (Lewiston, N.Y., ). A detailed survey of natural law debates in Germany is available in G. Hartung, Die Naturrechtsdebatte. Geschichte der Obligatio vom . Bis . Jahrhundert (Freiburg/Breisgau and Munich, ). An important general assessment of Pufendorf’s position in the history of philosophy is J. B. Schneewind, ‘Pufendorf’s place in the history of ethics’, Synthese,  (), pp. –. A full account of recent developments in scholarship on the European reception and influence of Pufendorf’s writings is collectively provided in the essays contained in F. Palladini and G. Hartung (eds.), Samuel Pufendorf und die europa¨ische Fru¨haufkla¨rung. Werk und Einfluss eines deutschen Bu¨rgers der Gelehrtenrepublik nach  Jahren (–) (Berlin, ), if read in association with the useful review article by S. Zurbuchen, ‘Samuel Pufendorf and the foundation of modern natural law: an account of the state of research and editions’, Central European History,  (), pp. –.



Natural Law Theories

and Wolff, and the ‘histories of morality’ are still the best record we have of that intellectual journey. To recover these debates, partial though the accounts are (in both senses of the term), is simultaneously to come close to a sense of the key issues of the early German Enlightenment, of which these short histories are in a real sense a self-image.            Natural law theories before the seventeenth century were dominated by a principle of theistic origins – that God was the source of all laws perceived as natural by human reason. There was a rival Stoic account, but it did not occupy the high ground of debate. After Grotius, the question of origins had become more problematic; for if the seat of natural law was seen unambiguously as the reason of man (irrespective of God’s role in shaping the scope of reason’s penetration), and this was also coupled to the assertion that all human positive law should be derivable from natural law, then it seemed difficult to escape from the subjectivism with which Hobbes had characterised the state of nature. There were no objective criteria available by which one man’s judgement of the law of nature could be preferred to another’s. The point was encapsulated powerfully by Bentham: What one expects to find in a principle is something that points out some external consideration, as a means of warranting and guiding the internal sentiments of approbation and disapprobation: this expectation is but illfulfilled by a proposition, which does neither more nor less than hold up each of those sentiments as a ground and standard of itself.⁵

As we shall see, much of the discussion within eighteenth-century natural jurisprudence took the form of a search for such an appropriate ‘external consideration’. If the imposition of divine will or the instantiation of divine reason were no longer fully credible and self-explanatory options, then the alternatives were to be located either in a variety of forms of positivism (such as the propensity of man to create common moral categories, or the role of the sovereign) or in appeal to such allegedly cross-cultural moral uniformities as the insights of the ‘impar⁵ J. Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart (London, ), p. . While Bentham went on to develop a careful distinction between the beneficial fictions of legal rights and the damaging fictions of natural rights, he never perceived the extent to which debates over natural rights in the period – had an ideological force and power that reached far beyond the acknowledged artifice of their narrow conceptual development. For a study of Bentham’s critique see J. Waldron, Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man (London, ).

Natural law and its history



tial spectator’. Nevertheless, throughout the eighteenth century the thesis of divine moral origins was to be restated by many eminent philosophers (for instance in Leibniz and Wolff) within an increasingly intricate framework of comparisons (above all in Leibniz’ theory of monadology) between the rational truths accessible to man and what was alleged could be known of the mind of God. This was an index of the obvious difficulties encountered by the newer theories in overcoming the voluntarist objections to their identification of natural law with human capacities. But there were larger problems within ‘modern’ natural law theories, too. It has, for example, often been shown that they tended to endorse an absolutist view of property rights (of which Rousseau’s critique in the Contrat Social is only the best-known example). But these difficulties were inherent in their basic contention that men held subjective rights by dominium which could hardly be regulated by any identifiable objective moral standard of justice. Any such claim of objectivity was undermined by Grotius’ own original emphasis on the diversity of observed human moral practice, and by Pufendorf’s concession that the will as much as the faculty of reason or understanding exercised a decisive role in the creation of laws. By the end of the eighteenth century the options open to those wishing to finesse the ‘modern’ natural law tradition had narrowed: the incongruities and contradictions of the writers associated with both Leibniz and Pufendorf – despite their differences – led eventually either to a hard-nosed legal positivism (as embodied by Bentham) or to the Kantian transcendence of the whole debate. This is not to say that with the ‘invention of autonomy’ in the decade of the s natural law theories disappeared from sight.⁶ Rather the redescription of natural law as subjective natural rights brought with it a change of focus from the metaphysical understanding of the world to the anthropological understanding of the individual, removing at a stroke any need for consideration of the ‘state of nature’ as the foundation of humanity, and downgrading the intellectual significance of epistemological discussions of the source of moral knowledge in God or ⁶ For an understanding of how and why Kant’s ‘invention of autonomy’ transformed moral and political thought, see above all the magisterial study by J. B. Schneewind, The Invention of Autonomy: a History of Modern Moral Philosophy (Cambridge, ). The later development of natural law theories into the nineteenth century is the subject of illuminating commentary in K. Haakonssen, ‘German natural law and its European Context’, in M. Goldie and R. Wokler (eds.), The Cambridge History of Eighteenth-Century Political Thought (Cambridge, forthcoming). See also D. Klippel, Naturrecht im . Jahrhundert. Kontinuita¨ t, Inhalt, Funktion, Wirkung (Goldbach, ).



Natural Law Theories

man. The combined achievement of the Kantian and French revolutions in thought produced natural rights that instead of being human attributes surrendered at the creation of civil society became the definition of current moral and political claims in society. The world of natural jurisprudence was not abolished but shifted its axis from delineating a vocabulary of duty to exercising an agenda of rights. Put in these schematic terms it would appear that eighteenth-century natural jurisprudence never identified that ‘external consideration’, that touchstone of generalisable verification, which might have allowed it to resolve the inherent conflict between voluntarism and rationalism, human capabilities and divine donations, that ran through its course. But in fact its proponents and defenders believed that a solution had been found – in history, and the history of thought in particular – that offered a methodological passage out of the impasse, enabling these viewpoints to be transcended and placed in a proper perspective. This solution was eclecticism, and it was advanced above all by the voluntarists (preeminently Pufendorf and Thomasius and their followers) to promote their own philosophical standpoint. It was not, however, embraced by the school of Leibniz and Wolff, for whom history could be no real ally in their attempt to claim a sustained and sustaining unity between the mind of God and the rational capacities of man. Of course, this is not the relationship between history and natural law with which anglophone scholarship is familiar, where history is seen to play a rather different role in the story. Famously, Leo Strauss, in his Natural Right and History () argued that seventeenth- and eighteenthcentury natural law writers were largely responsible for the damnosa hereditas of nineteenth-century historicism that sought to reduce all philosophy to political philosophy, culminating in a vapid and trivialising relativism.⁷ In a manner that would have done credit to the Wolffians, Strauss attributed the responsibility for this above all to ‘that imprudent, impish and iconoclastic extremist’, Thomas Hobbes, who had destroyed what he believed to be philosophy’s perennial role as ‘the humanizing quest for the eternal order’ and turned it into no more than ‘a weapon, and hence an instrument’.⁸ The eventual result of this historicism was a disastrous narrowing of the range of significance of natural jurisprudence. On the one hand, for historians of philosophy, discussions of natural law were reduced to the history of the emergence of notions of contract both social and political (classically exemplified in ⁷ See L. Strauss, Natural Right and History (Chicago, ), and esp. ch. . ⁸ Ibid., pp.  and .

Natural law and its history



the work of Otto Gierke); and on the other, sociologists, such as Max Weber, were encouraged to draw the conclusion that the sheer variety of human historical and cultural diversity precluded any kind of objective value judgement between different kinds of ethical norms.⁹ Whatever the merits or otherwise of the Straussian analysis, it correctly highlights the conventional assumption that an atemporal timeless natural jurisprudence must always be in conflict with an historical approach to ethics and law, and that ultimately natural law is an unstable category of thought which must collapse back into the study of either divine positive law or man-made positive law embodying voluntarist actions. It was precisely this apocalyptic choice which the German natural lawyers who followed Pufendorf sought to deny, and in so doing they also argued for a much less fraught relationship between history and natural law than has subsequently been assumed. But they were not alone in that, and before we examine their presuppositions in further detail it is worth looking at an example from the Catholic Neapolitan Enlightenment – that of Giambattista Vico – to demonstrate how a happy coexistence between the evidence of human history and a natural law theory based on a combination of both divine donation and human will was both possible and stable outside the confines of German Protestant university culture. Despite Vico’s determination to demonstrate the validity of divine providence in his The New Science, he always argued that the history of civilisation could only be investigated if the appropriate principle could be located for discovering the cause of human rational growth and cultural maturation. The foundation of this process lies not in divine providence, but in his so-called Verum-Factum principle most famously stated in The New Science: But in the thick darkness enveloping the earliest antiquity, so remote from ourselves, there shines the eternal and never failing light of a truth beyond all question: that the world of civil society has certainly been made by men, and that its principles are therefore to be found within the modifications of our own human mind.¹⁰ ⁹ For his reference to German historicism see ibid., p.  and his discussion of Weber, pp. –. Strauss’ critique of German historicism’s impact on the study of natural law still deserves consideration. One example that confirms its relevance is provided by the undeniably presentcentred priorities of Gierke’s model of contract theory, which unduly favoured those thinkers such as Althusius and Pufendorf who considered a Herrschaftsvertrag as fundamental to any lasting contract: see the excellent commentary in H. Ho¨ pfl and M. P. Thompson, ‘The history of contract as a motif in political thought’, American Historical Review,  (), pp. –. ¹⁰ G. Vico, The New Science of Giambattista Vico, trans. and ed. T. Bergin and M. Fisch (Cornell, ), based on  edn, §.



Natural Law Theories

Nowhere is this principle more self-evident than in the origins of the phenomenon of language, which is entirely the creation of man, whether in the ideogrammatic form associated with the Age of the Gods, the system of symbolic images that operated in the Age of Heroes, or the conventional alphabets developed in the Ages of Men. In each case truth and certainty in the world of social fact follow on from the knowledge that they have been made by men: what is known to be constructed is at least indubitably known. This certainly appears to be the case with formal linguistic conventions, which, because they are ‘uniform originating among entire peoples unknown to each other, must have a ground of truth’.¹¹ From here it follows that language emerges through the intervention of human will upon the natural onomatopoeic relationships between signifier and signified in a process of increasing abstraction which must be the fundamental kind of man-made social truth, the primal ‘modification of our own human mind’.¹² In fact, Vico’s linguistic theory and the theory of human cultural progress and development that stems from it bear striking similarities to the theory of language and social development we shall observe in the writings of Pufendorf and Thomasius; and if one accepts that Vico’s theory of progressive historical development within cultures is derived principally from his theory of the development of languages, then there appear to be close similarities with the theory of the growth of civilisation encountered in Pufendorf and Thomasius.¹³ Vico also shared their belief that all social phenomena are simultaneously products of human will (auctoritas) and reflections of patterns of human thought that run as constants throughout human history: human social and political imposition upon the world has an internal consistent logic to it just as language has a comprehensive logical structure behind the apparently arbitrary application of individual linguistic conventions. To establish the scientific status (constantia) of empirical social fact (philology), its congruence with the principles that governed the operation of the human mind, became Vico’s avowed task in The New Science: philosophy undertakes to examine philology (that is, the doctrine of everything that depends on the human will; for example, all histories of the languages, ¹¹ Ibid., §. ¹² Ibid. ¹³ On this issue see chapters  and . Of course, this parallel does not diminish the distance between Vico and the mainstream natural law writers on other issues, notably Vico’s criticism of their assumption that it was possible to analyse the content of the human mind in the state of nature as if it were fully formed and civilised (see P. Burke, Vico (Oxford, ), pp. –).

Natural law and its history



customs and deeds of peoples in war and peace), of which, because of the deplorable obscurity of causes and almost infinite variety of effects, philosophy has had almost a horror of treating; and reduces it to the form of a science by discovering in it that design of an ideal eternal history traversed in time by the histories of all nations; so that on account of this, its second principal aspect, our Science may be considered a philosophy of authority.¹⁴

It was for his work in reconciling reason and authority that Vico admired Grotius so highly. The latter’s achievement in natural law was of this order, because he had produced a persistent structural feature of human existence – sociability – as his principle, and then demonstrated its presence in positive law over the centuries: his natural law must be verum et certum because clearly factum. This represented the combination of ‘philosophy’ with ‘philology’ that Vico was seeking in his own writing, and was marred only by Grotius’ refusal to admit a role in historical causation for divine providence, and his insistence that human reason was fully formed at the earliest stages of human experience.¹⁵ From the evidence that survives in the The New Science as published, it thus appears that what impressed Vico in Grotius’ natural law theory was its combination of inductive and deductive thinking: a ‘universal system’ was presented derived from rationally valid principles (in this case the principle of sociability) supported by empirical historical evidence drawn from many nations of long-standing historical pedigree. Although it grew to encompass a variety of intellectual aims, initially The New Science originated as an attempt to complete the theory of Grotius by making human cultural development more obviously dependent upon divine providence and specifying the historical stages (the three ages) through which natural law had passed.¹⁶ ¹⁴ Vico, The New Science, p. , §. ¹⁵ Vico appears to use the term ‘philology’ as a broad label for all empirical evidence, rather than in a narrow linguistic sense: ‘Philology is the study of speech and it treats of words and their history, then shows their origin and progress, and so determines the ages of languages, thus revealing their properties, changes, and conventions. But since the ideas of things are represented by words, philology must first treat the history of things, whence it appears that philologists study human governments, customs, laws, institutions, intellectual disciplines, and the mechanical arts.’ G. Vico, Diritto Universale, in Opere, ed. B. Croce and F. Nicolini, vol. II (Bari, ), p.  (trans. D. R. Kelley in ‘Vico’s road: from philology to jurisprudence and back’, in G. Tagliacozzo and D. P. Verene (eds.), G. B. Vico’s Science of Humanity (Baltimore and London, ), p. ). ¹⁶ The natural law tradition was an important, if often unnoticed, influence upon Vico’s intellectual development. He had first read Grotius’ De Jure Belli in  when preparing his life of Antonio Carafa, and the impact had been sufficient to cause him to add Grotius to Plato, Tacitus and Bacon as one of his ‘Four Authors’ (see G. Vico, Autobiography, trans. T. Bergin and M. Fisch (Cornell, ), p. ). He is known to have written a series of annotations upon the edition of the De Jure Belli published by Gronovius in , but unfortunately the manuscript has not



Natural Law Theories

The example of Vico’s work, developed quite independently of the writers who constitute the main focus of this study, demonstrates two separate truths. First, it shows that language and its origins were to be a key principium cognoscendi for the eighteenth-century analysis of how human rational growth and cultural complexity emerged historically.¹⁷ And secondly, it was now apparent that once philosophers began to seek explanations for the patterns of human cultural development which were no longer exclusively reliant upon divine providence, then arguments and evidence from history would inevitably bulk large as a necessary part of those explanations. If social phenomena were now to be considered as man made to a greater extent than before, then the study of the record of that human creation, including literary and intellectual history, became increasingly important not simply as evidence but a part of the explanation of the history of civilisation itself. The incorporation of these historical arguments into German natural law theory became fraught and controversial, however, because the synthesis effected in the sixteenth century between Protestantism and Aristotelian natural law was too delicate and complex to withstand further reconstitution within the existing framework. And yet despite the controversy and continued opposition from the orthodox the importance of history could not be denied or excluded: if ethics itself was to be seen as – in whatever degree – partly a human science, it became essential for the historiography of that subject to be developed as well. It was evident above all to Thomasius, in his role as a reformer of syllabi at Protestant universities, that a new, more sophisticated genre of intellectual history to complement the newly defined study of the survived. It is also unfortunate that Vico destroyed the first version of The New Science which was ready for publication in  under the title ‘The New Science in Negative Form’. This version revealed Vico’s sources and antagonists more clearly than the later versions and, indeed, its first section was given over to an appraisal of the accounts offered of the origins of civilisation in Grotius, Pufendorf and Selden. For the details of what is known of these lost works see D. Faucci, ‘Vico and Grotius: juriconsults of mankind’, in G. Tagliacozzo and H. V. White (eds.), Giambattista Vico: an International Symposium (Baltimore, ), pp.  and . ¹⁷ Passages from The New Science concerning the origins of language compare interestingly with the accounts provided by Pufendorf and Thomasius which are analysed later in this volume: In children memory is most vigorous and imagination is therefore excessively vivid, for imagination is nothing but extended or compounded memory. This axiom is the explanation of the vividness of the poetic images the world had to form in its first childhood. (Ibid., §§–) Last of all the authors of the languages formed the verbs, as we observe children expressing nouns and particles but leaving the verbs to be understood . . . Our assertion may be supported by a medical observation. There is a good man living among us who after a severe apoplectic stroke, utters nouns but has completely forgotten verbs. (Ibid., §)

Natural law and its history



humanities was a pressing intellectual concern, and the ‘histories of morality’ were the substantive response.¹⁸ ‘                 ’         Before , when Pufendorf published his first sketch of the ‘history of morality’, it cannot be said that there was a historiography of moral philosophy in a recognisable modern sense of the term. Indeed, both during and for long after the Renaissance there was no self-conscious reflection on the past of the discipline. Instead there was a long series of editions of the Lives and Opinions of the Eminent Philosophers, written by Diogenes Laertius, a Hellenistic philosopher of the third century . The editio princeps of the text appeared in Basel in , and in  it still formed the basis for the histories of philosophy published in that year by Thomas Stanley (–) and Georg Horn (–).¹⁹ As with Laertius, their treatment was still narrowly doxographical, devoid of any analysis of the authors’ social and political context, and without any clear concept of the development of ideas within a particular philosophical school. Their only act of interpretation was to group philosophers of superficially similar views into a succession of competing ‘schools’. They offered no special consideration of the history of moral philosophy, and assumed that the study of philosophy as a subject worthy of discrete historical treatment had ceased with the arrival of the Christian dispensation.²⁰ This is not to suggest that there was no sense at all of philosophy being a historical artefact; but both before and during the Renaissance such discussion was largely confined to the circumstances of a text’s transmission rather than being directed towards providing an outline of the progress of the discipline, or, more basically, how one sect succeeded another. Typical of this pattern is the correspondence between Alonso of Cartagena and Leonardo Bruni in the s. The letters concerned ¹⁸ For an analysis of Thomasius’ unique position as an intellectual innovator, able to observe and participate in an almost Foucauldian ‘reordering of things’ in the Fru¨ haufkla¨ rung see H. Jaumann, ‘Fru¨ he Aufkla¨ rung als historisiche Kritik. Pierre Bayle und Christian Thomasius’, in S. Neumeister (ed.), Fru¨ haufkla¨ rung (Munich, ), pp. –. ¹⁹ The full details of the history of the publication of the editions of Diogenes Laertius are given in I. Tolomio, ‘Il genere ‘‘Historia Philosophica’’ tra cinquecento e seicento’, in G. Santinello (ed.), Storia delle storie generali della filosofia, vol. I (Brescia, ), pp. –. ²⁰ T. Stanley, The History of Philosophy (London, ); G. Hornius, Historia Philosophica (Amsterdam, ). For a study which attempts to find signs of novelty in these works see J. Re´ e, M. Ayers and A. Westoby (eds.), Philosophy and its Past (Brighton, ).



Natural Law Theories

the merits of Bruni’s translation of the Nicomachean Ethics into a Latin heavily indebted to the philosophical vocabulary of Cicero. The issue under discussion was whether an acknowledged authority in eloquence and rhetoric should be employed to elucidate the meaning of another moral philosopher considered to be the more profound. But there is no discussion of the historical relationship between Cicero and Aristotle; no examination of how that move from profundity to perceived superficiality had come about. Aristotle’s text is presented as a given truth, problematic only in the sense that its truth may be misrepresented in translation. From these letters it is clear that Bruni and Alonso regarded all philosophical inquiry since Aristotle as useful only in the sense that it might yield loci communes, or confirmatory instances of unquestionable universal truths.²¹ Nor did the recovery of a broader range of philosophical texts from the ancient world produce a change in attitude: doxography was simply supplemented by syncretism. A refusal to depart from fixed authorities in theology was now complemented by a refusal to concede that the ancient world’s achievement in philosophy could be transcended. Philosophical progress could only be measured in terms of recovery of more texts presently lost, and the restoration of the texts of those at present unsatisfactorily transmitted. Until almost the end of the seventeenth century, when the successful innovations of Cartesianism could no longer be denied, those writers who attempted histories of philosophy argued that all innovation could be adequately redescribed as mere recrudescence of a Greek or Roman dogma within a new terminology. As distinguished a philosopher as Leibniz remained convinced that this was a true description of the history of philosophy: that this history was in fact cyclical, or, more precisely, a kaleidoscope where, even if the appearances constantly changed, nevertheless the component parts of the picture stayed the same. The credit for overturning this attitude within the historiography of philosophy is usually attributed to Hegel, whose Lectures on the History of Philosophy () present a triumphal teleological account of the gradual progressive perfection of Mind, in which each age of philosophical inquiry represents an advance on its predecessor: What the history of philosophy displays to us is a series of noble spirits, the gallery of the heroes of reason’s thinking. ²¹ The correspondence is reprinted in A. Birkenmajer, Vermischte Untersuchungen zur Geschichte der Mittelalterlichen Philosophie (Mu¨ nster, ) (vol. XX of ‘Beitra¨ ge zur Geschichte der Philosophie des Mittelalters’, ed. C. Baeumker), pp. –.

Natural law and its history



By force of this reason these spirits have penetrated into the essence of things, of nature, and the spirit of God, and acquired for us the supreme treasure, the treasure of rational knowledge . . . The possession of self-conscious rationality, a possession belonging to us, to our contemporary world, has not been gained suddenly, nor has it grown merely out of the soil of the present. On the contrary, it is essentially an inheritance and, more precisely, the result of labour, the labour of all the preceding generations of the human race . . . So too for our position in science now and particularly in philosophy, we have tradition to thank, the tradition which runs through everything which is perishable like a ‘holy chain’ as Herder has called it, and has preserved and transmitted to us what antiquity has produced. But this tradition is not merely a housekeeper who preserves faithfully what she has received and transmits it unaltered to her successor. It is not a motionless statue; it is alive, swelling like a mighty river which grows the further it is pushed on from its source.²²

There can be no doubt that Hegel’s work was innovative in erecting a whole metaphysics on the observed progressive achievement of the noblest minds in every successive age. But a concept of the history of philosophy as development towards a present whose access to philosophical truth would always represent the highest peak so far attained was not itself new; for in  J. J. Brucker (–), a teacher at Augsburg, had published his six-volume Historia Critica Philosophiae, ‘derived from the origins of the world up to our own age’, which was structured around the assumption that post-Renaissance philosophy, and its logic and ethics in particular, had surpassed antiquity and brought philosophical knowledge to new heights. Brucker’s was the first general history of philosophy to offer an overarching interpretation of the development of the discipline: instead of the familiar and bare chronology of doctrines, he provided a compendium grounded on the premise that all modern achievement in philosophy was the result of philosophers employing the eclectic method. By this he meant not unsystematic syncretism, but a combination of careful estimation of the current validity of authorities together with abstract rational reflection, a via media between dogma and detachment. The eclectic philosopher is one who examines all available authorities but ‘diligently investigates the nature and properties of the objects which come under his observation, that he may from these deduce clear principles, and arrive at certain knowledge’.²³ However, this is not a definition or theory unique ²² G. W. F. Hegel, Introduction to the Lectures on the History of Philosophy, trans. T. M. Knox and A. V. Miller (Oxford, ), p. . ²³ J. J. Brucker, Historia Critica Philosophiae a mundi incunabulis ad nostram usque aetatem deducta,  vols. (Leipzig, –, nd edn), tomus IV, pars altera, p.  (trans. in W. Enfield, The History of Philosophy . . . drawn up from Brucker’s ‘Historia Critica’, vol. II (London, ), p. ).



Natural Law Theories

to Brucker. It is the general outlook that dominated in north German universities before the dissemination of Wolff’s reworking of Leibnizian philosophy, and found its most notable expression in the ‘histories of morality’ that described eclecticism’s most notable recent triumph in the field of ethics. Brucker’s work is therefore a culmination of a complex interrelation between historiography and philosophical practice that had begun much earlier in the field of ethics. As a part of his replies to those who had attacked his major tome, De Jure Naturae et Gentium (), Pufendorf had published in  the first ‘history of morality’, his Specimen Controversiarum circa Jus Naturale ipsi nuper motarum. An account of the circumstances that led to its publication is given in chapter . At this early stage, his ‘history’ consisted of no more than a self-justifying sketch that placed his own work in relation both to his most distinguished contemporaries whose work he believed he was completing, and to those figures in ancient moral philosophy whose work he believed to prefigure his own, or from whom his writings might be most sharply contra-distinguished. At no time did Pufendorf envisage a teleological reading of the history of philosophy as a whole. The participants in that debate – most notably Pufendorf himself – wrote their own ‘histories of morality’ as a support and vindication of their own theoretical positions that were still evolving and changing in the light of the polemics.²⁴ However, a ‘progressive’ reading of the history of philosophy became possible once Thomasius convinced himself, first, that Pufendorf’s theory of natural law was valid, and secondly, that the reason for its truth lay in the philosophical method which had been employed. Chapter  recounts in detail the long and often painful process by which Thomasius arrived at these conclusions. The impact of this conversion (which has echoes of Luther’s Turmerlebnis) proved far reaching, in that Thomasius erects the case study provided by Pufendorf’s method of arriving at his core conclusions (a combination of the interaction of abstract reflection with judicious citation from relevant historical authorities) into a clearly defined alternative to the orthodox practice of philosophy in Protestant universities. Intellectual autobiography undoubtedly chimed here with self-interest, represented by Thomasius’ ²⁴ Pufendorf’s later editions of the De Jure Naturae in  and  accommodated some of the objections by playing down the Hobbesian aspects of the first edition: see F. Palladini, Samuel Pufendorf, discepolo di Hobbes. Per una reinterpretazione del giusnaturalismo moderno (Bologna, ), passim for a comprehensive analysis of the vexed intellectual relationship between Pufendorf and Hobbes.

Natural law and its history



breach with orthodox Leipzig and involvement in the foundation of the new University of Halle, where the study of law was to predominate over that of theology. But irrespective of the mixture of motives, it was inevitable that Pufendorf’s identification of his own relationship to his predecessors would also be taken up by Thomasius and his colleagues as the normative account of the ‘history of morality’. If the positive doctrine was accepted unequivocally as an intellectual breakthrough, then so too must the author’s version of how that truth had emerged. Thus at its very inception, eclecticism was both a method and a history that mutually justified one another: the recent practice of moral philosophy showed the success and validity of the method; and the corresponding history provided retrospective reassurance of its significance in all previous periods of inquiry in moral philosophy. Thomasius and the French Huguenot Jean Barbeyrac (–) not only made the chief substantial revisions to Pufendorf’s natural law theory that dominated subsequent discussion of the discipline in French and German, but they also wrote the two largest and longest ‘histories of morality’ that became the model for other works in the same genre written in the republic of letters and the north German universities.²⁵ Although these texts tend to draw their narrative to a close with Pufendorf, this indicates not so much the paucity of subsequent achievement in natural jurisprudence, but rather the polemical function of the histories as innovative textbooks for new university courses designed to inculcate a new orthodoxy. In fact, Pufendorf’s immediate successors were original thinkers as much as they were faithful editors and disciples. Barbeyrac, the major translator and editor of Pufendorf’s texts in French, used his intellectual inheritance to frame an original refutation of the Pyrrhonian scepticism of Pierre Bayle, while Thomasius made striking contributions to church history, the study of German customary law and the application of experimental methods in science, quite apart from his practical role in university reform, the pietist movement, and active campaigning to halt the application of torture to obtain confessions and the prosecution of witchcraft allegations. In some ways the task faced by Barbeyrac and Thomasius was more exacting than the agenda of the earlier seventeenth-century natural law writers: for by detaching natural law clearly from moral theology they opened up their flanks more readily to charges of relativism from ²⁵ J. Barbeyrac, ‘Histoire critique et scientifique de la Science des Moeurs’, preface to S. Pufendorf, Le Droit de la Nature et des Nations, ed. J. Barbeyrac,  vols. (Amsterdam, ); C. Thomasius, Paulo plenior Historia Juris Naturalis (Halle, ).



Natural Law Theories

sceptics, and of Hobbesian voluntarism from orthodox theologians. It was Leibniz who expressed these criticisms most cogently; and it is no hyperbole to interpret both Barbeyrac and Thomasius as wrestling in different ways to escape from these objections and the implicit return to a scholastic theory of natural law that was threatened by acceptance of them. They reached different conclusions as to how Hobbes might be assimilated, and neither really rose to the potent challenges Leibniz posed in his series of short unpublished interventions. For this reason, chapter  is given over to a detailed comparative examination of the issues at stake in the moral epistemology of Leibniz and Pufendorf. While parts of Leibniz’ case remain as powerful as ever, in particular his meticulous revelation of the unresolved Hobbesian implications of Pufendorf’s account of moral obligation, nevertheless Pufendorf’s defence of his position can be shown to be more coherent and sustained than either of his greatest disciples allows for in their own attempts at rebutting Leibniz. Above all his analysis of cultura animi is fundamental to a highly original account of how moral norms can be generated and sustained through uniquely human resources, especially language, which in turn eventuates in a fresh account of how contracts are created and made binding. It is argued that at the centre of Pufendorf’s achievement in natural law theory is a sense of the importance of principium cognoscendi, or in other words the method by which ethical certainty is obtained, which is then transformed by Thomasius into the self-conscious methodology of eclecticism. Given the polemical pedagogic context of newly founded and radical universities within which eclecticism emerged, it was inevitable that textbook ‘histories of morality’ would be quickly penned as teaching aids to sharpen interest in future employment of the method. For natural law offered a unifying discourse that could serve to promote the position of jurisprudence, and thus the faculties of law and philosophy, against theology. This is well brought out in the commentaries of an outside observer, the Scottish lawyer George Turnbull (–), upon one of the leading textbooks in the tradition of Pufendorf and Thomasius written by J. G. Heineccius (–). For Turnbull, this textbook tradition explicitly grounded in eclecticism offered an excellent training in developing sound interpretative principles for probing the complex problems of Roman and indeed all forms of positive law: And it would not certainly be an improper way of studying our laws first to get well acquainted with the laws of nature (large commentaries upon which are generally at the same time commentaries upon the Roman laws, the examples

Natural law and its history



being commonly taken from thence), and then to go over the same laws of nature again in order, and to enquire into our laws under each head, and try them by the laws of nature, as the Roman laws are commonly canvassed by the maxims of natural equity, in treatises upon universal law.²⁶

Elsewhere Turnbull takes this view further so that natural law offers principles capable of deciding all ‘hard cases’ as well as general truths: Whence it is evident, that one well versed in the knowledge of natural law can never be at a loss to find out what ought to be the general positive law in certain cases, and how positive law ought to be interpreted in cases, which tho’ not expressly excepted in a law, which must be general, yet are in the nature of things excepted.²⁷

He combines this sweeping endorsement with Grotius’ argument that states should be viewed as moral persons, so that a training in natural law is sufficient for a grasp of the principles of the public law of nations too.²⁸ After eclecticism had been presented in many German universities as the presiding genius of all philosophical inquiry for three generations, and all cognitive advances in ethics had been attributed to it, it is easier to see how Brucker came to select it as the organising principle of his general history of philosophy. Moreover the ‘history of morality’ became a generally accepted commonplace outside Germany, too, as we may see by juxtaposing a passage from Brucker’s text with a similar assessment provided in the s by Condillac (–), the philosopher of sensation, then employed as tutor to the duke of Parma, for whom he wrote a history of philosophy: For if Grotius ranked not first amongst all, then certainly, he was very important in showing that the concept of duties (which had not been neglected in ancient times by the Stoics) had to be enlarged, and expanded to the whole of divine law, insofar as it can be known to reason. After Hobbes, Grotius was followed by Pufendorf: thus part of moral philosophy was added which is called the law of nature and of nations, but which is so far removed [from it] that it ²⁶ J. G. Heineccius, A Methodical System of Universal Law: or the Laws of Nature and Nations deduced from Certain Principles and applied to Proper Cases, trans. and ed. G. Turnbull,  vols. (London, ), vol. II, pp. –. ²⁷ Ibid., vol. I, p. . Turnbull sets out his views most systematically on these topics in his Observations upon Liberal Education, in all its Branches (London, ), where he argues that the combined study of Roman and natural law is essential to the formation of the citizen. ²⁸ Ibid. Turnbull’s supple understanding of the ‘modern’ natural law tradition through the medium of its histories contrasts starkly with the more recent debate over whether Grotius or Hobbes should be seen as its founder, a debate which develops a misleading polarisation, and misses the finesse the eighteenth century displayed in identifying these intellectual filiations: see, for example, N. Bobbio, ‘Hobbes and natural law theory’, in Thomas Hobbes and the Natural Law Tradition, trans. D. Gobetti (Chicago and London, ), pp. –.

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Natural Law Theories

must be distinguished from ethics, so that it cannot be deemed to be able to exist unless it is supported from either side [i.e. by divine law and ethics].²⁹ The Law of Nature and of Nations [De Jure Naturae et Gentium], which Pufendorf published in , is the most thorough and best reasoned work that anyone had ever published in this area. This judicious writer, with less talent than Grotius and Hobbes, has succeeded better because he knew how to profit from the errors as well as the insights of both of them.³⁰

This historiographical consensus would have seemed remarkable in the decades after the publication of Pufendorf’s major text, when the authority of that text and its relationship to its predecessors was a subject of continuing controversy, and is eloquently indicative of the subsequent impact of the ‘history of morality’. We may therefore appreciate how the historiography of philosophy and the development of natural law doctrines have to be considered together rather than in separation: German natural law theory in the eighteenth century finds an important avenue of expression in its history; and it is this work that provides the basis for the first ‘progressive’ account of the historical evolution of philosophy. These two reasons alone make the subjects inextricably parallel. Their mutual relation has been obscured for so long simply because soon after this tradition reached its apogee in Brucker’s Historia Critica Philosophiae, it was entirely displaced in German universities by the historiographical revolution that ensued when Kant’s Critical Philosophy became the orthodoxy. As we shall see in chapter  this change of direction owed much not only to Kant’s own entirely distinctive vision of the proper agenda for moral philosophy, but also to his keen desire to overturn the lowly curricular position still assigned to philosophy in university syllabi. In a very real sense the ‘history of morality’ was a casualty of the Streit der Faculta¨ ten which involved the recovery of independent authority for the faculty of philosophy from the faculty of law as much as that of theology. By the time Hegel came to write his Lectures on the History of Philosophy there already existed a new range of textbooks by authors such as Sta¨ udlin, Tennemann and Buhle, that made little or no mention of eclecticism at all, and devoted no particular attention to post-Renaissance writings on natural law.³¹ The commonplaces of half a century ²⁹ Brucker, Historia Critica Philosophiae, vol. V: Historia Critica Philosophiae a tempore resuscitarum in occidente literarum ad nostra tempora (Leipzig, ), tomus IV, pars altera, liber II, caput iv, §, p. . ³⁰ E. Bonnot de Condillac, Cours d’Etudes pour l’Instruction du Prince de Parma. Histoire Moderne, ch. xi, ‘Des progre`s de la politique’, Oeuvres Comple`tes, vol. XIV (Paris, ), original edn , p. . ³¹ C. F. Sta¨ udlin, Geschichte der Moralphilosophie (Hanover, ), and its epitome, Geschichte der Moralphilosophie, appendix to his Neues Lehrbuch der Moral fu¨ r Theologen (Go¨ ttingen, ), pp. –; J. G. Buhle, Lehrbuch der Geschichte der Philosophie und einer kritischen Literatur derselben ( vols., Lemgo, –); W. G. Tennemann, Geschichte der Philosophie,  vols. (Leipzig, –).

Natural law and its history



were swept away because Kant’s own location of himself at the start of the ‘real’ history of philosophy was accepted as normative. Just as Pufendorf’s ‘history of morality’ had been transmuted from self-conscious polemic into a plausibly true, comprehensive and objective account, so the brief ‘history of pure reason’ at the end of the Critique of Pure Reason was dramatised and expanded as a complete history of philosophy where the whole past of the discipline could be described in terms of a conflict between ‘dogmatists’ and ‘sceptics’, and ‘rationalists’ and ‘empiricists’, culminating in Kant’s own resolution of the conflict. Moreover, Kant’s habit of identifying his native German opponents as simply and solely the Wolffians had the effect of removing the followers of Thomasius from the picture even as enemies. It was doubly ironic not only that the natural law school and the eclectics were thus relegated to the ranks of unreconstructed scholastic faction fighting from which they had attempted to distance themselves decisively, but also that just as eclecticism had been deeply implicated in university reform, so, too, did Kant’s agenda emerge on the back of a plan for curricular change that left no special place for jurisprudence. Given this background it is difficult to envisage any adequate recovery of the content and context of eighteenth-century natural law discussion in Germany that does not focus first on its history. A measure of the difference eclecticism had made to the study of moral philosophy and its historiography may be gauged from a brief comparison of the work in these fields of Brucker and Jakob Thomasius (–), the father of Christian Thomasius. The elder Thomasius wrote both a history of philosophy that was admired by Leibniz, among others, as the best and most accurate of its time, and also penned a number of textbooks on moral philosophy for use in the university at Leipzig.³² But these are trifling works in comparison with those written in the same areas only thirty years later. Jakob Thomasius’ Schediasma Historicum was indeed an advanced work for its time, in that it was probably the fullest and most accurately collated doxography of ancient philosophy in existence. But its method was in no way innovative, for the author’s interest lay only in freeing the philosophers of antiquity, and Aristotle in particular, from scholastic glosses; he was not concerned to extend his history forward to the modern period, or to trace links between the purer texts that he had isolated and recovered. It is important to stress that Jakob Thomasius’ conservatism in ³² J. Thomasius, Schediasma Historicum quo varia discutiuntur ad historiam tum philosophicam tum ecclesiasticam pertinentia (Leipzig, ); Erotemata Metaphysica pro incipientibus (Leipzig, ); Erotemata Logica pro incipientibus (Leipzig, ).

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Natural Law Theories

historiography stemmed from a conservative methodological position in philosophy as a whole: it is this difference which fundamentally explains the gap between his work and Brucker’s and demonstrates once more how philosophy and its history must be judged together. Thomasius was still very much a part of the protestant scholasticism of north Germany even though he belonged to the more progressive ‘Altdorf’ branch of Aristotelianism that had tried to accommodate the recent work of Suarez rather than looking back to the ethical writings of Melanchthon.³³ Thus he had strong reservations about the syncretic habit of making pagan philosophy conformable with Christianity: ‘Nothing corrupts our history of philosophy more disgracefully than attempts to reconcile parts of Plato, Aristotle, the Stoics and other gentiles with the Christian faith’.³⁴ But although Thomasius distanced himself from religious syncretism, he remained wedded to its philosophical parallel by retaining the assumption that all seventeenth-century novatores could be assimilated to Aristotelianism, and that nothing other than a cyclical interpretation of the history of philosophy was tenable. Although he doubted aspects of the tradition in which he had been educated, he could not envisage an alternative paradigm, and so finally conformed.³⁵ We know from the testimony of his son that Jakob Thomasius was interested in, and lectured on, the works of Grotius; but again he did not allow this notable receptivity to new work to alter his general Aristotelian stance on ethics, a point he shared among others with Hermann Conring.³⁶ In a posthumous collection of his father’s dissertations, significantly dedicated to Pufendorf, Christian Thomasius lamented that his father had been born in the wrong time and place to carry his admirable freedom from academic prejudices into a thorough reform of philosophical method in Leipzig: And without doubt that blessed man, now dead, would have reached a closer understanding of the true and sole philosophy, since he was endowed with unwearying diligence as well as outstanding integrity of mind. If the time in ³³ ‘Thomasius supported a pure Aristotelianism in the manner of the Altdorf School (Michael Piccart and Ernst Soner) and Christian Dreier, contrary to the ontological doctrines of the current Aristotelianism modelled on Suarez, that he nevertheless saw triumphing in the schools and to which he unwillingly adapted’: G. Santinello, ‘La ‘‘historia philosophica’’ nella scolastica tedesca’, in Santinello, Storia delle storie generali della filosofia, vol. I, p. . ³⁴ J. Thomasius, Exercitatio de stoica mundi exustione cui accesserunt argumenti varii, sed imprimis ad historiam stoicae philosophiae facientes dissertationes XXI (Leipzig, ), p. . ³⁵ See ibid., pp. –. ³⁶ His reading of Grotius yielded no more than a summary of Grotius’ main doctrines which could be employed in teaching: J. Thomasius, Specimen tabularum novarum in Hugonis Grotii de iure belli et pacis libros (Leipzig, ).

Natural law and its history



which he was writing had granted him the degree of freedom which we (snarling sophists permitting) enjoy, and if there had not been a firm conviction that Aristotle was the best of all philosophers . . . then fear of quarrels, which seemed to arise daily among those who strove to increase their knowledge beyond the opinions of the old teachers, would not have impeded the best of men from proceeding further on this path of truth.³⁷

For his son, the elder Thomasius was an eclectic manque´, a transitional figure who embodied the most advanced views in north German academic life before the advent of Pufendorf. It is the distance between these views and those of Brucker, the distance between the transition to eclecticism and its later obsolescence that the following chapters will attempt to traverse. It is not the argument of this book that the ‘history of morality’ necessarily propagated a more objective or dispassionate account of the history of philosophy than existing models. Indeed, the real importance of these texts lies in their articulation of the philosophical method and achievements of a group of thinkers who have tended, since Kant, to be altogether neglected. In fact a number of the intellectual relationships and continuities established in these works were both controversial and intensely polemical, and not least the assumption of an easy transition between the writings of Grotius and Pufendorf, whereas in reality the understanding by these two writers of the proper connections between law and rights was very different. These differences were fully exposed in the natural law writings generated by the Huguenot diaspora which offer a case study of an alternative, proto-liberal individualism generated from primarily Grotian as opposed to Pufendorfian intellectual roots. Jurieu, Bayle, Barbeyrac and Burlamaqui all used the resources of natural law arguments to develop their high notion of the role of conscience into a body of political theory appropriate for the re´fugie´s. These interpretations demonstrate the potent and unstable fertility of the ‘modern’ natural law tradition. Not only was that tradition flexible enough to accommodate the voluntarist model generated by Pufendorf and the deductive, rationalist views of Wolff, both of which culminated in a stress upon the natural fulfilment of the individual within the elaborate contractual framework of the absolutist state; but it could also generate a theory of political participation that took its starting point from the individualist perspective of the human conscience and the rights generated by its ³⁷ J. Thomasius, Dissertationes LXIII varii argumentii magnam partem ad historiam philosophicam et ecclesiasticam pertinentes, ed. C. Thomasius (Halle, ), ‘Benevolo Lectori’, pp. – (unnumbered).

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Natural Law Theories

uniquely privileged insights. This polyvalent flexibility of development should not be seen as a sign of the kind of conceptual and intellectual incoherence stigmatised by Strauss, but arguably as the most salient feature of natural law theories, which have persisted as a part of Western culture since Classical times largely because they can be seen to encompass both the protection of the rights of individuals and the legitimation of communities. The Huguenot tradition of interpretation, less well known than the related natural law theories in Germany, proved to be of enduring importance in shaping the reception of natural jurisprudence in France, and therefore deserves separate study in its own right, on a larger scale than is possible in this volume.³⁸ Natural law arguments associated with Hugo Grotius, in particular, played a distinctive part in the formation of the opposing ideas of Bayle and Jurieu on the nature of moral and political obligation and the possibility of civil toleration. That Grotius’ arguments could be deployed on the same topic to such wholly divergent ends was precisely expressive of not only the range of views on resistance to sovereigns within the Refuge but also the spectrum of opinions that could be identified in Grotius’ own writings. This complex inheritance also helps to suggest that some of the confusions and contradictions that are apparent in the natural law theory subsequently developed by Barbeyrac become more perspicuous once one sees that he is attempting an extremely complex reconciliation of essentially incompatible elements in the natural law tradition: on moral obligation he takes Pufendorf’s voluntarism as his model; on political obligation he follows Locke’s contractarianism; but within both categories he seeks to identify the faculty of conscience with the moral intuitions of natural reason – a position inherited from Bayle which had itself already been conditioned and nuanced by Grotian natural law arguments of a different hue from those of Pufendorf and Locke.³⁹ ³⁸ The best and most succinct accounts in English of Huguenot political theory before and after the Revocatio are M. Yardeni, ‘French Calvinist political thought, –’, in M. Prestwich (ed.), International Calvinism – (Oxford, ), esp. pp. –, and the magisterial article by E. Labrousse, ‘The political ideas of the Huguenot diaspora (Bayle and Jurieu)’, in R. M. Golden (ed.), Church, State and Society under the Bourbon Kings (Lawrence, Kan., ), pp. –. On the specific question of the indebtedness of the Huguenots to a broad range of natural jurisprudential arguments, see my article ‘The claims of conscience: natural law theory, obligation, and resistance in the Huguenot diaspora’, in J. C. Laursen (ed.), New Essays on the Political Thought of the Huguenots of the Refuge (Leiden, ), pp. –. I hope to expand and deepen this interpretation in a further study. ³⁹ For more detail on this reading of Barbeyrac, see T. J. Hochstrasser, ‘Conscience and reason: the natural law theory of Jean Barbeyrac’, Historical Journal,  (), pp. –.

Natural law and its history



The interests of the Huguenot writers do certainly overlap at significant points with their German counterparts: both were in essence opposition movements seeking legitimation through the creation of a history of their own authenticity, and Barbeyrac in particular contributed not only his notable ‘history of morality’, but also works on early Church history that mirrored the German concern to identify the essentials of faith amid the onset of clerical usurpations. He sought to defend Pufendorf’s natural jurisprudence against attacks made upon it by Leibniz, and his commentary taken as a whole has some claim to be the best and most-focused of the Pufendorfian defences against Hobbesian voluntarism.⁴⁰ But there are significant differences in the theological, intellectual and political contexts of the Huguenot and German discussions of natural jurisprudence. Above all the debate over eclecticism, which was fundamental to the German debate, largely passed by the Huguenots, whose ethical assumptions were steeped in a Malebranchian philosophical vocabulary.⁴¹ But their receptivity to developments in Germany should serve to emphasise that the German debates could coexist with a jurisprudence conceived outside ‘national context’ as part of discussions which were considered to be of cosmopolitan relevance across the whole European republic of letters.            It is only in the course of the last fifteen years that academic discussion of eclecticism has been seriously undertaken in Germany.⁴² This has ⁴⁰ The best biography of Barbeyrac is still P. Meylan, Jean Barbeyrac (–) et les de´buts de l’enseignement du droit dans l’ancienne Acade´mie de Lausanne (Lausanne, ), although it is weaker on the periods before and after his professorship at Lausanne. The best coverage of his intellectual context is A. Dufour, Le Mariage dans l’e´cole romande du droit naturel au xviiie sie`cle (Geneva, ), pp. –. ⁴¹ This point is made well in an obituary for Jean Le Clerc where the anonymous writer points out that ‘some of the same Nation [i.e. Germany] have said that Mr Le CLERC’s Writings are esteemed there, because they contain a fuller Explication of the Eclectic Philosopy, which that Learned Philologer and Divine, JOHN FRANC BUDDEUS has followed. But Mr LE CLERC’s pieces were publish’d before the Eclectic Philosophy of that famous Man came out into the World . . . Mr LE CLERC could not explain what he had not seen’ (Anon., An Account of the Life and Writings of Mr John Le Clerc (London, ), p. ). However, there may well have been some contact between the Huguenots of the Berlin Refuge and eclecticism through the medium of Arnold Wesenfeld (–), an eclectic professor of logic and ethics at Frankfurt an der Oder, where some Huguenots refugie´s were educated; but this link remains unresearched. ⁴² The chief contributions to the debate are W. Schmidt-Biggemann, Topica Universalis. Eine Modellgeschichte humanistischer und barocker Wissenschaft (Hamburg, ); M. Beetz, ‘Transparent gemachte Vorurteile. Zur Analyse der praejudicia authoritatis et praecipitantiae in der Fru¨ haufkla¨ rung’, Rhetorik,  (), pp. –; H. Holzhey, ‘Philosophie als Eklektik’, Studia Leibnitiana,  (), pp. –; W. Schneiders, ‘Vernu¨ nftiger Zweifel und wahre Eklektik. Zur Entstehung des



Natural Law Theories

coincided with sustained interest in defining and elucidating the identity of the Fru¨ haufkla¨ rung itself, and in particular the relationship of its leading figures – notably Thomasius – to the pietist movement and the strengthening of enlightened despotism at the expense of the confessional state. This needs to be understood clearly because otherwise the particular polemical significance of eclecticism can be lost. Without a clear sense of eclecticism’s targets and from what it is contra-distinguished, its emphasis on judicious and independent-minded selection of the best of the intellectual past can seem no more than banal advice for good practice. Unless eclecticism is continually compared with and related to other debates in Protestant Germany about intellectual identity, the proper content of university curricula and the relationship of academics to Church and state its genuine character can remain elusive. Narrowly defined, eclecticism has been confined to the influence exerted by the work of J. C. Sturm in the s, and above all focused on the extent to which Thomasius continued to espouse the type of natural science methodology proposed by Sturm. Johann Christoph Sturm (–) was a professor of mathematics and physics at Altdorf between  and , effectively succeeding to the mantle of Erhard Weigel (–) as the greatest authority on mathematics and the natural sciences at German universities.⁴³ He first came to prominence in  as a defender of experimental philosophy in his Collegium Experimentale sive Curiosum, a record of experiments he had undertaken on the modernen Kritikbegriffs’, Studia Leibnitiana,  (), pp. –; W. Schmidt-Biggemann, ‘Zwischen dem Mo¨ glichen und dem Tatsa¨ chlichen. Rationalismus und Eklekticismus, die Hauptrichtungen der deutschen Aufkla¨ rungsphilosophie’, in his Theodizee und Tatsachen. Das philosophische Profil der deutschen Aufkla¨ rung (Frankfurt/Main, ), pp. –; M. Albrecht, ‘Thomasius – kein Eklektiker?’, in W. Schneiders (ed.), Christian Thomasius –. Interpretationen zu Werk und Wirkung (Hamburg, ), pp. –; H. Dreitzel, ‘Zur Entwicklung und Eigenart der ‘‘Eklektischen Philosophie’’ ’, Zeitschrift fu¨ r Historische Forschung,  (), pp. –; M. Albrecht, Eklektik. Eine Begriffsgeschichte mit Hinweisen auf die Philosophie – und Wissenschaftsgeschichte (Stuttgart and Bad Cannstatt, ). Of all these writings perhaps the survey by Dreitzel and the comprehensive exercise in Begriffsgeschichte by Albrecht are the most significant and penetrating. Most recently the phenomenon of eclecticism and many of these works have been reviewed twice in the same journal: M. Mulsow, ‘Eclecticism or skepticism? A problem of the early Enlightenment’, Journal of the History of Ideas,  (), pp. –; U. J. Schneider, ‘Eclecticism – history of a concept with references to the history of philosophy and science’, Journal of the History of Ideas,  (), pp. –. The latter sums up the drift of all recent scholarship when he argues that ‘Eclecticism is not a doctrine but an intellectual attitude and what its investigation requires is a closer look at the motivation of the authors’ (ibid., p. ). Some moves in this direction are set underway in the same author’s ‘Eclecticism and the history of philosophy’, in D. R. Kelley (ed.), History and the Disciplines: the Reclassification of Knowledge in Early Modern Europe (Rochester, ), pp. –. ⁴³ Dreitzel, ‘Zur Entwicklung und Eigenart der ‘‘Eklektischen Philosophie’’’, p. . For a summary of his career see ibid., pp. –, and a much more detailed analysis in Albrecht, Eklektik, pp. –.

Natural law and its history



model of learned societies around Europe. The intention apparently was to use organised observation of nature, vetted by selected experts in the field, to terminate vain and endless verbal arguments over natural philosophy, and – rather as Boyle envisaged – restrict the scope of natural philosophy as well.⁴⁴ Once the limit of what could be agreed by experiment had been reached then discussion moved from physics into another discipline altogether – metaphysics.⁴⁵ Ten years later Sturm followed up this work with a set of dissertations prepared under his direction, Philosophia eclectica.⁴⁶ In this book a general case was argued for experimental philosophy as a guide to truth that avoided controversy. Sturm viewed eclecticism not so much as a programme for intellectual independence of sectarian affiliation but as a peacemaking mechanism among natural scientists that could resolve conflict by providing better consensual definitions of what the proper remit of natural philosophy should be. If a criterion of proof in natural philosophy that all participants accepted could be agreed upon, then a proper epistemological status for experimentation would also be established, whereas previously experiments had been seen as the domain of banausic mechanics rather than the appropriate focus for the true philosopher. Much of the material in Thomasius’ Introductio ad Philosophiam Aulicam () was drawn from the opening section of Sturm’s book: for him at this stage it represented a plausible refutation of Cartesian physics and a defence of the power of the human intellect to identify and emend error. But in the course of the s, once his own general focus shifted to correction of human will as the key step in moral improvement, then his own enthusiasm for experimental philosophy fell away and was replaced by a Mosaic physics drawn from the Old Testament.⁴⁷ Therefore on this tightly construed interpretation eclecticism is only a passing phase in Thomasius’ career rather than an enduring commitment. The alternative approach to eclecticism has been to follow Brucker’s indiscriminate example and try to identify common principles linking all those listed as eclectics in the numerous literary histories published in ⁴⁴ For Boyle’s views, see S. Shapin and S. Shaffer, Leviathan and the Air-Pump: Hobbes, Boyle and the Experimental Life (Princeton, ). ⁴⁵ I am grateful to Thomas Ahnert for drawing these comparisons to my attention. His forthcoming work will shed much new light on the relationship between physics and ethics in German academic debate in the s. ⁴⁶ J. C. Sturm, Philosophia eclectica d. h. exercitationes academicae (Altdorf, ); a further volume was published in . ⁴⁷ For a succinct review of the evidence see Albrecht, ‘Thomasius – kein Eklektiker?’.



Natural Law Theories

the early eighteenth century.⁴⁸ Both in the monolithic methodology of Begriffsgeschichte and in the uncritically comprehensive collation of those writers who describe themselves as eclectics (or historians who produce lists of eclectics) there is a real risk of mistaking the word for the concept and thus missing the essence of the concept itself. As Quentin Skinner has noted, it is not enough to follow the lexical journey of the words most commonly used to designate a concept; for such words are theory dependent and not conceptually self-sufficient and self-explanatory.⁴⁹ Instead, it is more truly historical to range more widely; for the surest sign that a group or society has entered into the self-conscious possession of a new concept is that a corresponding vocabulary will be developed, a vocabulary which can then be used to pick out and discuss the concept with consistency.⁵⁰

In the example of eclecticism it is more important to look for the wider ramifications rather than specific confessions of affiliation on the part of authors, and such a via media is possible if one moves away from the self-constraining Begriffsgeschichte of the historiography on natural science and the sheer sprawling nominalism of the alternative. For if one returns to the substantive content of the contemporary intellectual history – and above all to those same ‘histories of morality’ discussed earlier – one finds that for writers closer to the events eclecticism came in the s to represent a generic term for the attack by reformers on Pedanterey and scholastic obscurantism.⁵¹ It was not so much in natural science but in natural law and curricular reform of philosophy broadly understood that the eclectic impact was felt and perpetuated well beyond Thomasius’ admittedly crucial engagement with Sturm’s writings between  and . The ‘new vocabulary’ in this case is forged in the framework for discussing ethics and politics promulgated in Thomasius’ sequence of new university textbooks in the period –, the most formative period of his intellectual career, which coincided with his enforced departure from Leipzig and his absorption of the lessons of Pufendorf’s jurisprudence as well as Sturm’s physics. This framework ⁴⁸ Albrecht castigates Dreitzel forcefully for this (see Eklektik, pp. –), but does not sufficiently insulate himself against the opposite charge that his conceptual approach in a book that begins with Aristotle and ends with modern psychotherapy is too inflexible in the face of historical change, and too much dependent upon its own ‘keywords’. ⁴⁹ Q. Skinner, ‘Language and political change’, in T. Ball, J. Farr and R. L. Hanson (eds.), Political Innovation and Conceptual Change (Cambridge, ), pp. –. ⁵⁰ Ibid., p. . ⁵¹ See Albrecht, ‘Thomasius – kein Eklektiker?’, pp. –, for a compilation of the later favourable references in Thomasius’ writings to this broader usage of the term.

Natural law and its history



also achieved a permanent elevation of the status of philosophy within first Halle and then other universities at the expense of theology.⁵² The narrow interpretation of eclecticism thus misses the point that much of Thomasius’ most creative work was undertaken in law and ethics, where his mentor was Pufendorf rather than Sturm.⁵³ It is this aspect of his work, I wish to suggest, that is his true legacy both to eclecticism and to the formation of the priorities of the Fru¨ haufkla¨ rung. Its importance was recognised both by Buddeus, who among his successors perpetuated eclectic priorities most emphatically, and in the opposition of Wolff and his followers. The latter correctly perceived (in a way that subsequent historiography has not) that the crucial terms of the debate had been set by Leibniz and Pufendorf in their disputes over the Pufendorfian realignment of natural law theory to a position closer to Hobbesian voluntarism.⁵⁴ But eclecticism also needs to be seen against the background of a widening of the scope of intellectual life in Germany, which was reflected in the increasing discussion of what exactly constituted the republic of letters in Germany: the issues of who should participate in it, whether it was to be aristocratic or genuinely republican, imitative of French models or distinct from them, suggest lines of argument that anticipate Kantian distinctions between private study and public discussion monitored by the state.⁵⁵ Within the realm of academe itself a new definition of the purposes of scholarship was sought which focused discussion on the respective merits of humanist erudition on the one ⁵² This broader interpretation of eclecticism is captured by Dreitzel in his analysis of Thomasius in ‘Zur Entwicklung und Eigenart der ‘‘Eklektischen Philosophie’’ ’, pp. –. ⁵³ Albrecht is unable to see why Pufendorf should have described himself as a ‘former eclectic’ (Albrecht, Eklektik, p. , n. ). But if the range of eclecticism is extended to include the moral sciences Pufendorf’s affiliation becomes much easier to understand: see chapters  and , esp. pp. – and –. To say that Pufendorf was Thomasius’ mentor does not contradict the core of eclecticism’s argument that a philosopher should eschew one master; for, as is argued below, it was precisely Pufendorf’s example in this respect that Thomasius sought to imitate. Albrecht is, however, right (see Eklektik, p. ) to stress that it is perhaps better to see Thomasius as a Selbstdenker rather than an eclectic, taking the full trajectory of his career into account. ⁵⁴ As Dreitzel remarks, ‘The contribution of eclectic philosophy itself lay however less in the area of the natural sciences than in the humanities and social sciences’ (Dreitzel, ‘Zur Entwicklung und Eigenart der ‘‘Eklektischen Philosophie’’ ’, p. ). He goes on to cite the authority of the philosopher J. H. Feder: ‘the Eclectics of recent times have considered it their duty to confer on the moral sciences their particular boundaries, and to disentangle natural law and the law of nations, and politics and ethics’ ( J. H. Feder, Grundriss der philosophischen Wissenschaften (Coburg, , nd edn), p. ). ⁵⁵ See H. Jaumann, ‘Ratio Clausa. Die Trennung von Erkenntnis und Kommunikation in gelehrten Abhandlungen zur Respublica literaria um  und der europa¨ ische Kontext’, in S. Neumeister and C. Wiedemann (eds.), Res Publica Litteraria. Die Institutionen der Gelehrsamkeit in der fru¨ hen Neuzeit (Wiesbaden, ), pp. –.



Natural Law Theories

hand and modern rational science on the other: eclecticism became a slogan exchanged between champions of one side or the other, and in a real sense the battle over the meaning of eclecticism was Germany’s equivalent of the contest between the ‘ancients and the moderns’ that took place elsewhere in Europe.⁵⁶ But what gave an extra sharpness to this debate in the years – was a combination of historical circumstances that forced German academic life to focus on new issues outside its traditional concerns. The expulsion of the Huguenots and their reception in Germany, combined with direct German involvement in the Nine Years’ War, thrust the state of Brandenburg into new prominence as the effective leader of the Protestant states in northern Germany and encouraged modernisation not only of its own institutions but also of those in neighbouring states. Of course, it would be quite wrong to suggest that Pufendorf and Thomasius sought deliberately to promote a secular ethics which consigned moral theology to a trifling intellectual role.⁵⁷ Indeed, the two writers viewed both eclecticism and ‘modern’ natural law theory as valuable precisely because they introduced new categorical distinctions that should impose a decisive closure upon the confused polemics that had increasingly shrouded and tainted Protestant German university life. The intention was to provide moral theology with its proper place rather than to reduce it to a cipher. Nevertheless, the combination of their derivation of a new textbook tradition for the teaching of ethics with substantial changes to the curricula of university teaching under pressure from state patronage undoubtedly helped to demote the intellectual authority of theology and correspondingly raise the independent stature of scientific ethics. This unintended dismantling of just one aspect of the apparatus of the Lutheran confessional state sheds clear light on the relationship between ⁵⁶ This is certainly how eclecticism is treated in the various literary histories that try to survey the achievements of the first half of the eighteenth century in Germany, where the forces of orthodoxy are seen as ‘sectarian’ and the novatores as free-thinking, independent-minded eclectics: see, among others, J. F. Reimmann, Versuch einer Einleitung in die Historiam literariam sowohl insgemein als auch die Historiam literariam der Deutschen insonderheit,  vols. (Halle, –); B. G. Struve, Introductio in noticiam rei literariae (Jena, ); N. H. Gundling, Vollsta¨ ndige Historie der Gelahrtheit (Frankfurt/Main and Leipzig, –); J. A. Fabricius, Abriss einer allgemeinen Historie der Gelahrtheit,  vols. (Leipzig, –). ⁵⁷ Although Thomasius did attack the political claims of the clergy – whether Catholic or Lutheran – much more forcefully than Pufendorf, as a way of restoring the Church its purer form as constituted by Constantine: see H. Dreitzel, ‘Christliche Aufkla¨ rung durch fu¨ rstlichen Absolutismus. Thomasius und die Destruktion des fru¨ hneuzeitlichen Konfessionsstaates’, in F. Vollhardt (ed.), Christian Thomasius (–). Neue Forschungen im Kontext der Fru¨ haufkla¨ rung (Tu¨ bingen, ), pp. –.

Natural law and its history



eclecticism and the character of the early Enlightenment in Germany. Eclecticism, as deployed by Pufendorf and Thomasius, gave an opportunity for the redescribing of intellectual boundaries under a wholly acceptable and innocent cover. So far from being part of a deliberate process of secularisation, any losses in the ideological status of Lutheranism resulted from the advantage taken by the state of the reshuffling of priorities and personnel at the universities. We see here a pattern that parallels the related experience of the Halle pietists, who set out to initiate a widely diffused movement for spiritual regeneration and charitable good works, but at home achieved in effect a new state religion that supported the cameralist aims of the Prussian royal house in promoting and sustaining a bureaucratic apparatus that reinforced loyalty to the state.⁵⁸ In similar vein, Thomasius’ great goal of an independentthinking graduate population that would take the philosophia aulica it had derived from his textbooks with it into future office-holding, eventuated in the provision of generations of subservient cadres of the Prussian state. Ultimately the backcloth of charitable institutions and faculty appointments that were the necessary preconditions of both pietism and Thomasian eclecticism remained in the gift of the state, which under the Hohenzollerns never relaxed its grip, and welcomed in return the assistance given in further subjugating the other estates of the realm. Only in the special circumstances of Hanoverian Go¨ ttingen, with a largely absentee ruler, could a more relaxed and genuinely independent intellectual environment emerge. The roots of this Faustian snare for both eclectics and pietists go back to the early s when Thomasius above all engineered the arrangement with the Prussian government whereby the Ritterakademie at Halle was advanced to the status of university, thus creating a home for pietists and other dissident intellectuals in his own mould which would offer protection from the kind of persecution they were experiencing from orthodox theologians. This was a bargain in which Thomasius and his followers appeared to have come off best in the short term; but in the long run the Calvinist Prussian dynasty was able to benefit hugely from association with the most dynamic elements in Lutheran intellectual and religious life who were also doctrinally committed to a life of social ⁵⁸ For the pietist movement in Prussia, see M. Gierl, Pietismus und Aufkla¨ rung. Theologische Polemik und die Kommunikationsreform der Wissenschaft am Ende des . Jahrhunderts (Go¨ ttingen, ); W. R. Ward, The Protestant Evangelical Awakening (Cambridge, ), esp. ch. ; R. L. Gawthrop, Pietism and the Making of Eighteenth-century Prussia (Cambridge, ); C. Hinrichs, Preussentum und Pietismus (Go¨ ttingen, ); K. Depperman, Der hallesche Pietismus und der preussische Staat (Go¨ ttingen, ).



Natural Law Theories

service in the community, which came, in time, to mean no more than the professional service of the state. Here we do indeed find the real, if unwitting, assistance that eclectics gave to the secular priorities of dynastic state-building. The state apparatus had long sought a means by which it could bring to heel the Lutheran clergy, over whom it had little direct control, and whose power it could at best hope to dilute through a deliberate policy of religious toleration and encouragement of immigration. A unique opportunity arose in the elector’s acquisition of the centrally located province of Magdeburg in . Simultaneously there seemed to be scope to forge new economic links between the eastern and western provinces, while also striking a blow against neighbouring Saxony and its leading town, the market city of Leipzig. For the state the advantage of locating a university in Halle was first its cheeky proximity to orthodoxly Lutheran Leipzig (soon to be thrown into greater confusion by the Saxon elector’s conversion to Catholicism in pursuit of the Polish crown), and secondly the solution it offered to the need for a Lutheran university for the training of clergy and officials to match the Calvinist schools of Duisburg and Frankfurt an der Oder. But this time it was to be an institution that the government would control, and there was to be no sharing of power between clergy and gentry in the handing out of appointments.⁵⁹ It was to become a powerful element in the Prussian government’s successful attempt to overcome its dichotomous confessional situation and assert its leadership in north German Protestantism, worsting Saxony in the process. Thomasius and his followers gained institutional freedom from the faculty of theology at Halle, but exchanged it for a new and unpredictable partner.                    On the frontispiece of his pathbreaking Introductio ad Philosophiam Aulicam (Introduction to Court Philosophy), Christian Thomasius presents a future courtier with a choice between three different paths or ‘ways’ of which the central one is the path to truth lying between two alternatives – the false doctrines of the Cartesians on the one hand and those of the Aristotelians on the other. At the end of the path of truth is a monarch surrounded by courtiers – a trite and self-serving image, perhaps – but nevertheless an accurate picture of the relationship Thomasius envisaged ⁵⁹ For this thematic summary the argument is indebted to Ward, Protestant Evangelical Awakening, pp. –.

Natural law and its history



between royal authority, university institutions and professional vocations within state service, for which the newer universities provided crucial initial training. Within the first half of the eighteenth century these goals were to be achieved in north German Protestant culture. Scholars at the new universities of Halle, Jena and Go¨ ttingen took advantage of the protection from traditional theological strictures that operated in these new royal foundations to generate curricula that were oriented towards practical subjects that would provide a training for future civil servants, lawyers, doctors and clergy. In return for a commitment to direct higher education towards the professional needs of the state, academics won the freedom to practise a truly eclectic and cosmopolitan philosophy protected from the arbitrary interference not only of theologians, but also in practice, of the monarchs.⁶⁰ Increasingly it was political sovereignty that lay behind the creation of university policy in the polities within the Reich rather than geographical distinctions between northern or southern, eastern or western locations (which were not recognised by contemporaries) or confessional distinctions (the sharing of common textbooks across confessional boundaries was in place even before the abolition of the Jesuits). It was, for example, Prussian policy-making, enacted in the Ministry of Justice and the so-called ‘Spiritual’ Ministry (covering Lutheran Church affairs, schools and universities) that provides the common link to explain the development of the study of philosophy at Halle, Jena, Ko¨ nigsberg and Frankfurt an der Oder. Likewise it was Hanoverian policy, shaped by the political link to Great Britain, that was the decisive influence in determining the priorities of the new university of Go¨ ttingen which then itself became the object of imitation in both Catholic and Protestant universities across Germany. Thus the Thomasians were quick to appreciate not only the need to attune their university programme to the political and confessional requirements of state and court, but also the potential appeal to sovereigns and university patrons of their natural law theory, which had for the first time clearly distinguished jurisprudence from moral theology as a core element of any philosophy course that would ultimately produce graduates in law or theology. These political and institutional facts help to throw light upon the relative lack of confrontation between official philosophy and the Aufkla¨ rung and the, for the most part, smooth incorporation of philosophy into the business of providing a practical education for state servants. ⁶⁰ These themes are discussed in several of the essays in N. Hammerstein (ed.), Universita¨ ten und Aufkla¨ rung (Go¨ ttingen, ).



Natural Law Theories

The subordinate position of philosophy in relation to the other three faculties and its role as a foundation discipline made it more open to curricular reform at the behest of rulers than the other faculties. A common feature was the determination of the rulers that the philosophy faculty should be independent of the theology faculty and therefore basically answerable to a government department alone. This was achieved at the outset at Halle and Jena – both new foundations at the end of the seventeenth century. The university of Halle, founded in  at the instigation of Elector Frederick III of Prussia, was largely the creation of two leading figures of the early German Enlightenment, Thomasius and August Hermann Francke (–), who for different reasons placed a high value on the beneficent role of practical knowledge. Thomasius had found protection in Prussian territory from the Protestant Aristotelians of Leipzig, who had expelled him for lecturing in the vernacular and challenging the authority of the theology faculty to determine the content of teaching in ethics; while Francke was devoted to the creation of a pietist educational infrastructure stretching from basic schooling to university level. This pietist commitment to the provision of education for the children of the poor at the expense of the community produced a university with a relative lack of social exclusivity and a willingness to act as a conduit for limited social mobility into the lower ranks of the clergy and bureaucracy.⁶¹ As a result of Thomasius’ initiatives the most characteristically enlightened thought that evolved from Halle derived from the law faculty rather than from philosophy. The concept of libertas philosophandi applied first and foremost to jurisprudence and moral philosophy where the battle was still most intense between the opponents and defenders of Pufendorf. It is possible to compare this contest with the dispute within French higher education over the introduction of Newtonian mathematical physics, in that it contained both an intellectual dispute of substance alongside an important challenge to the traditional structure of university teaching. If mathematical logic and experimental principles shattered the unified metaphysics and shared methodological assumptions of French universities then, as we shall see, Pufendorf’s voluntarist natural law theories ultimately had a similarly destabilising effect on the synthesis of Lutheran and Aristotelian natural law orig⁶¹ This was not sustained in the later eighteenth century when the priority of governments, and therefore of the universities too, shifted to one of stabilising social contours and thus restricting the access of the lower orders to higher education. See A. J. La Vopa, Grace, Talent and Merit: Poor Students, Clerical Careers, and Professional Ideology in Eighteenth-century Germany (Cambridge, ), ch. .

Natural law and its history



inally assembled by Melanchthon. Moreover just as physics emerged as the cuckoo in the nest of French Cartesianism, so the new prominence of the law faculty that emerged from these polemics destabilised the traditional balance between the faculties.⁶² Despite the association between Halle and Thomasius, it should not be forgotten how much was contributed to the institutional development of Halle by Christian Wolff (–). His insistence that philosophy alone possessed a rational deductive method of demonstration is often dismissed as no more than a sophisticated throwback to scholasticism. But this is to miss the central claim behind his system, which was that the unique ability of philosophy to aspire to the status of mathematical certainty should entitle it to lead the other faculties. This was bound to lead to strife at a time when many of the professors of philosophy were also professors in the other faculties, and although the pretext for his expulsion from Halle by Frederick William I in  was a charge of impiety, in fact the real reason lay in his attempt to free the faculty of philosophy further from the influence of theologians, and assert its right to an independence and predominance that anticipates the claims of Kant’s Contest of the Faculties. The foundation of the university of Go¨ ttingen in  could not have been brought about without the prior settling of these earlier disputes, and represented an opportunity to incorporate their lessons: for example, the theology faculty was prevented from interfering in the activities of the other faculties; and while philosophy retained its traditional preparatory and introductory role, new subjects were added to those taught within it – such as empirical psychology, natural law, natural history, pure and applied mathematics, and history, with its related disciplines of geography and diplomacy.⁶³ The direct ⁶² The best account of the institutional impact of the Pufendorf polemics is still N. Hammerstein’s in Jus und Historie. Ein Beitrag zur Geschichte des historischen Denkens an deutschen Universita¨ ten im spa¨ ten . und im . Jahrhundert (Go¨ ttingen, ). Without the focus on the history of public law that Thomasius initiated at the Halle faculty of law it is difficult to see how Go¨ ttingen could later have made its rapid progress in using Roman and German legal codes to reinterpret the constitutional history of the Reich. The projected synthesis of history and its underlying sociological principles worked on by Gatterer, Schlo¨ zer and Iselin still owes a lot to these pioneering efforts to relate natural law and history. The reorganisation of the leading faculties at German universities in the eighteenth century is succinctly analysed by W. Schmidt-Biggemann, ‘New structures of knowledge’, in H. de Ridder-Symoens (ed.), Universities in Early Modern Europe, vol. II in W. Ru¨ egg (ed.), A History of the University in Europe (Cambridge, ), pp. –. ⁶³ For more information on Go¨ ttingen’s innovations see C. E. McClelland, State, Society and University in Germany, – (Cambridge, ), pp. – and N. Hammerstein, ‘Go¨ ttingen, eine deutsche Universita¨ t im Zeitalter der Aufkla¨ rung’, in A. Patschovsky and H. Rabe (eds.), Die Deutsche Universita¨ t in Alteuropa (Konstanz, ), pp. –. The decision to found Go¨ ttingen took place against a sombre background of falling student enrolment in what were perceived to be too many rather than too few German universities.



Natural Law Theories

interference of both lay and clerical sources of authority was effectively excluded by locating the university some distance away from Hanover’s seat of government, and by restricting the scope of theological disputation to a purely academic plane. Thus the best features of the Ritterakademien and the old universities were attractively combined within one university, which through its connections with Britain was also well placed to act as a conduit for the most recent literary developments taking place abroad.⁶⁴ The newer German universities such as Halle, Jena and Go¨ ttingen enjoyed success in attracting students from outside the states in which they were located, and this, in turn, contributed to an increasing tendency in the later eighteenth century for professors to write their own textbooks, a development which acted as a form of advertisement for both the university itself and for the professor’s own course. This trend also served the mercantilist tendencies of the state that sought to attract students rather than to export them, and strove to avoid reliance on the purchase of foreign textbooks – which by the same token also indicated a form of cultural subservience to other countries. These textbooks often provided much needed income for academic philosophers, most of whose small income – even in Kant’s time – was derived from taking on an inordinate amount of teaching. Indeed, if one follows the career paths of successful German philosophers it is striking how often they subsequently move from the philosophy faculty to posts in the law or theology faculties, which were rather better remunerated. Although it is true that in southern Catholic Germany there was ready access to Protestant texts by Wolff and others from the s onwards, it is important to note that the main features of institutional reform – such as the rivalry between the Jesuits and the Academy of Sciences in Munich and the later abolition of the Jesuit order – are strongly correlated with the main changes in the philosophical syllabus: in this regard the major change came in after the removal of Jesuit influence, when Wolff’s textbooks on logic and metaphysics were made an integral part of the philosophy course.⁶⁵ These works, with their ⁶⁴ For an excellent account of Go¨ ttingen’s receptivity to British thought see F. Oz-Salzberger, Translating the Enlightenment: Scottish Civic Discourse in Eighteenth-century Germany (Oxford, ), ch. . This British connection helped to influence the university’s emerging priorities in classical philology, the history of public law and Statistik (comparative study of politics). ⁶⁵ The first works of Wolff that had been received favourably in southern Germany were those devoted to ethics or politics, which like those of Thomasius, offered a natural jurisprudential account of sovereignty that proved to be highly congenial to the local princes: see N. Hammerstein, Aufkla¨ rung und katholisches Reich. Untersuchungen zur Universita¨ tsreform und Politik katholischer Territorien des Heiligen Ro¨misches Reiches deutscher Nation im . Jahrhundert (Berlin, ), pp. –.

Natural law and its history



attempt to reconcile the powers of divine and human reason, were quite acceptable to the Thomist traditions in which Catholic German universities still operated. This had important consequences for the swift spread of Kantian idealism throughout the German university system in the last decade of the century: not only was the removal of the ban on textbooks from a rival confession a necessary precondition for the free circulation of the ideas of a new philosophical school, but the preexisting focus on the works of Wolff ensured that there was a larger audience for an author, such as Kant, who was in one sense responding specifically to the kind of rationalism embodied in Wolff’s textbooks. In his commentaries on Heineccius’ famous textbook, which have the status of an objective summing-up of the achievements of natural jurisprudence in Germany, Turnbull drew attention to a strange lacuna in the elaborate edifice of argumentation assembled by the disciples of Pufendorf and Thomasius – the absence of an adequate account of how governments should operate in practice. In natural jurisprudence the account of the formation of societies and governments from the state of nature is argued theoretically through a series of putative contracts and decrees so that ‘none of them has ever considered government in its natural procreation, or its natural causes’.⁶⁶ The aim is to establish the moral legitimacy of the state rather than the principles of government upon which it should operate.⁶⁷ Turnbull attempts in a separate discourse of his own (A Supplement concerning the Duties of Subjects and Magistrates) to remedy this problem, but his solution only serves to beg rather than to resolve questions. While he appreciates that the voluntarism of Pufendorfian natural law theory leaves real doubt as to whether subjects and rulers will be able to agree on a shared concept of the public good, he attempts to dissolve the problem by falling back on Ciceronian concepts of the common good and Barbeyrac’s notes on the key passages in Pufendorf, which themselves betray a notable instability on the question of the legitimacy of resistance to properly constituted sovereign authority.⁶⁸ ⁶⁶ Heineccius, A Methodical System, vol. II, p. . This criticism also constituted a major part of the critique of natural law theories by Vico and Rousseau, who protested that the model of rational man used to explain the origins of the state was wholly abstract and anachronistic. ⁶⁷ On this issue see the masterful article by C. L. Carr and M. J. Seidler, ‘Pufendorf, sociality and the modern state’, History of Political Thought,  (), pp. –. ⁶⁸ G. Turnbull, ‘A Supplement concerning the Duties of Subjects and Magistrates’, in Heineccius, A Methodical System, vol. II, pp. –. He draws especially on Cicero, De Officiis, book I, ch.  and book II, ch. ; from Barbeyrac he takes material collected in the notes to Pufendorf’s De Jure Naturae et Gentium, book VII, ch. , §ff. These offer little support to the Hutchesonian ‘moral sense’ theory Turnbull wishes to recommend as the basis of relations of trust between rulers and ruled.



Natural Law Theories

This blind spot in the coverage offered by the Pufendorfian strand in the natural law tradition offers two further implications upon which we must reflect. First, it helps to explain why it is the large textbooks of Christian Wolff that become axiomatic in justifications of enlightened despotism, rather than those of contemporaries such as Heineccius. Wolff’s writings, as described in chapter , provide the monarchs with detailed accounts of how the individual best finds self-perfection within the educational and professional structures provided by the state, while at the same time he also furnishes the monarchs with a concept of a Wohlfahrtsstaat which allows them enough flexibility to reconcile their traditional patriarchal rhetoric with a modern cameralist set of justifications for state intervention to promote economic growth, fiscal reform and military and diplomatic aggrandisement. As Frederick the Great was quick to appreciate, one did not have to accept or even penetrate the scholastic detail of Wolffian metaphysics, to detach from it a convenient comprehensive account of the legitimate outreach of the enlightened state.⁶⁹ Secondly, the prominent position occupied by the disciples of Pufendorf and Thomasius helped to reinforce the dubious paradox, still present in today’s secondary literature, that German political thought before the cameralist and Kantian eras was both essentially authoritarian, and vague about the detailed operation of government once its network of supporting contracts was in place.⁷⁰ But writings in the Wolffian tradition did indeed offer a detailed justification for enlightened absolutism and its involvement in detail in the control and development of society, while also retaining a residual area of natural liberty within the framework of the absolutist state (defined as civil liberty) within which individual Glu¨ ckseligkeit is to be achieved.⁷¹ The association between the Pufendorfian view of the state and authoritarianism derived not so much from its specific political recommendations but above all from the pessimism of its assumptions about the state of nature from which a complete surrender of natural liberty to the ⁶⁹ On the details of the education in natural law theory received by Frederick the Great see P. Baumgart, ‘Naturrechtliche Vorstellungen in der Staatsauffassung Friedrichs des Grossen’, in H. Thieme (ed.), Humanismus und Naturrecht in Berlin-Brandenburg-Preussen. Ein Tagungsbericht (Berlin and New York, ), pp. –. ⁷⁰ On this point see, for example, the coverage in the elegant, concise and well-known excursus by T. C. W. Blanning, ‘The ‘‘German Problem’’ in the eighteenth century’, in his Reform and Revolution in Mainz – (Cambridge, ), pp. –, and esp. pp. –. ⁷¹ See D. Klippel, ‘The true concept of liberty: political theory in Germany in the second half of the eighteenth century’, in E. Hellmuth (ed.), The Transformation of Political Culture: England and Germany in the Late Eighteenth Century (Oxford, ), pp. – and esp. –.

Natural law and its history



absolutist state appeared to follow. The only liberty that it could tolerate seemed to be akin to Hobbes’ nonchalant concession – ‘As for other liberties, they depend on the silence of the law’. However, once civil society itself began to appear in the unthreatening and stable form of a natural economic order – as the German physiocrats, for example, argued in the middle of the century – then natural law was reinterpreted as no more than the principles that underpinned the minimum framework of positive law needed to sustain this natural order. Civil society and the state of nature were eirenically reunited.⁷² The concept of Aufkla¨ rung resists convenient definition largely because it is at one and the same time striving both to present an intellectual agenda and provide a description of the achievements of an historical epoch that is already in place. This applies all the more forcibly to the period of transition between  and  (now tentatively designated the Fru¨ haufkla¨ rung), where so many of the texts iterate an agenda that proleptically announces its own completion: there is a continual tension between the stated ideals and the inadequate intellectual, institutional and political realities which must in time be clarified, purified and reformed. Nowhere is this tension more clearly seen than in the field of contemporary natural law theory which claimed a metaphysical standing and validity outside time, while simultaneously writing up its own recent history and representing the history of ethics as in fact the history of natural law pure and simple. Prescriptive and descriptive, profoundly self-aware of the history of ethics and yet deliberately and deeply unhistorical in its self-promotion, the paradoxes of natural law were also the paradoxes of the Fru¨ haufkla¨ rung. Both sought to describe themselves through a history that was self-consciously tendentious, propagandistic and wish fulfilling; both projected a rhetoric of liberation of the full potential of the rational elements in man from the intellectual and institutional shackles of their opponents. Yet the necessary price of achieving that intellectual and institutional bridgehead was an endorsement of the legal positivism of enlightened despotism, with the ruler retaining in his single person all the powers of man in the state of nature which the ‘modern’ natural law tradition had so laboriously sought elsewhere to transmute and contain. ⁷² See ibid., pp. –.



Natural Law Theories      :             

S. Pufendorf, ‘De Origine et Progressu Disciplinae Juris Naturalis’, Specimen Controversiarum circa Jus Naturale ipsi nuper motarum (Uppsala, ). C. Thomasius, ‘De Sectis Philosophorum’, Introductio ad Philosophiam Aulicam (Leipzig, ) ch. , –. J. F. Buddeus, ‘Historia Juris Naturae’, preface to P. H. Vitrarius, Institutiones Naturae et Gentium (Leiden, ) (an enlarged version appeared under Buddeus’ own name in Selecta Juris Naturae et Gentium (Halle, )). J. B. Wernherus, Dissertatio de praecipuis nonnullis Juris Naturae scriptoribus (Leipzig, ). J. N. Hertius, ‘Commentatio de jurisprudentia universali’, Opuscula, vol. I (Frankfurt/Main, ). J. Groeningius, ‘Praefatio’, to S. Pufendorf and J. Groeningius (eds.), De Officio Hominis et Civis (Stockholm, ). J. F. Ludovicus, Delineatio Historiae Juris divini naturalis et positivi universalis (Halle, ). J. Barbeyrac, ‘Histoire critique et scientifique de la Science des Moeurs’, preface to S. Pufendorf, Le Droit de la Nature et des Nations, ed. J. Barbeyrac,  vols. (Amsterdam, ). N. H. Gundling, Historia Philosophiae Moralis. Pars Prima (Halle, ). C. Thomasius, ‘Von der Historie des Rechts der Natur bis auf Grotium’, foreword to H. Grotius, Vom Rechte des Krieges und der Friedens, ed. C. Thomasius (Halle, ). J. F. Reimmann, Versuch einer Einleitung in die Historiam Literariam der Deutschen insonderheit,  vols. (Halle, –), vol. VI, –. E. Gerhard, Prolegomena ad delineationem Juris Naturae ( Jena, ). C. A. Heumann, Conspectus Reipublicae Litterariae sive Via ad Historiam Litterariam iuventuti studiosae aperta (Hanover, ). C. Thomasius, Paulo plenior Historia Juris Naturalis (Halle, ). G. A. Vinhold, Notitia scriptorum iuris naturalis quorundam elogis condecorata (Leipzig, ). C. M. Pfaff, Introductio in historiam theologiae literariam notis amplissimis,  vols. (Tu¨ bingen, –). L. Reinhard, Historia Jurisprudentiae naturalis in qua varia huius doctrinae fata secundum seriem temporum recensentur (Leipzig, ). B. G. Struve, ‘De Scriptoribus qui historiam, ideas, systemata vel controversias Iuris ediderant’, Bibliotheca Juris Selecta ( Jena, ), ch. .

Natural law and its history



J. F. W. Neumann, Bibliotheca iuris Imperantium quadripartita (Nuremburg, ). G. Stolle, Introductio in Historiam Literariam ( Jena, ), part , ch. . J. F. Buddeus Compendium Historiae Philosophicae, ed. J. G. Walch (Halle, ), ch. . A. F. Glafey, ‘Historie des vernunfftigen Rechts’, preface to Vollsta¨ ndige Geschichte des Rechts der Vernunfft (Frankfurt/Main and Leipzig, ). D. G. Morhof, Polyhistor Literarius (Lu¨ beck, ), vol. III, ch. . F.-R. d’Aube, preface to Essai sur les principes du droit et de la morale (Paris, ). E. F. Schmersahl, Historie der Welt-Weisheit (Zelle, ). J. J. Brucker, Historia Critica Philosophiae a mundi incunabulis ad nostram usque aetatem deducta, vol. V ( Jena, , nd edn, –). J. J. Schmauss, ‘Historie des Rechts der Natur’, Neues Systema des Rechts der Natur (Go¨ ttingen, ), –. M. Hu¨ bner, Essai sur l’histoire du droit naturel,  vols. (London, –). J. H. S. Formey, preface to Principes du droit de la nature et des gens,  vols. (Amsterdam, ) (Extracted from C. Wolff, Jus naturae, methodo scientifica pertractatum,  vols. (Frankfurt/Main and Leipzig, –)). F.-B. de Fe´ lice, ‘Introduction historique et critique au droit naturel’, preface to J.-J. Burlamaqui, Principes du Droit de la nature et des gens (Yverdon, ).

 

Socialitas and the history of natural law: Pufendorf’s defence of De Jure Naturae et Gentium

                   In the years following the publication in  of Pufendorf’s magnum opus, De Jure Naturae et Gentium, a lively polemic had begun concerning the theology and natural law contained in that work. In  Valentin Alberti (–), a leading professor of theology at Leipzig, and the most subtle of Pufendorf’s critics, had published a fully-developed alternative to the argument of the De Jure Naturae in his Compendium Juris Naturae, Orthodoxae Theologiae Conformatum (Compendium of Natural Law in Conformity with Orthodox Theology). This work moved the standard of debate quite beyond the personal gibes and heretical insinuations of Beckmann and Schwarz, Pufendorf’s original antagonists at the university of Lund.¹ Instead, Alberti offered a powerful restatement of the orthodox Lutheran and Aristotelian synthesis on the divinely imposed nature and origin of natural law, finessed by the introduction of a concept of status integritatis. The purpose of this last innovation was to protect the orthodox view against Pufendorf’s contention that divine imposition applied only in a pre-lapsarian existence, and that therefore natural law could only have originated in a combination of man’s instinct for sociability and his calculation of the rationality of a social life as the best means to self-preservation. If it could be shown that man’s ¹ In  Nicholas Beckmann and Joshua Schwarz produced Index Quarundum Novitatum Quas Dnus Samuel Puffendorff Libro Suo De Iure Naturae et Gentium Contra fundamenta Londini edidit. This was the first item in nearly thirty years of polemics surrounding Pufendorf’s De Jure Naturae. A full survey of the central arguments in this controversy, and a chronological bibliography of the participants’ contributions is provided in F. Palladini, Discussioni seicentische su Samuel Pufendorf. Scritti latini: – (Bologna, ). Pufendorf’s general views on the writing of history and their relationship to the concept of agency in his moral philosophy are admirably and succinctly surveyed in M. Seidler, ‘Natural law and history: Pufendorf’s philosophical historiography’, in Kelley, History and the Disciplines, pp. –.



Socialitas and Pufendorf



moral nature was not entirely depraved at the time of the Fall then it could be argued that the uncorrupted remains of that divinely created nature had persisted in a post-lapsarian world as natural law. Thus the link with God would remain intact. The major part of the Specimen is devoted to an exposition and evaluation of all previous writings concerning natural law, from some of which Pufendorf claims his own views to be directly derived. This first chapter, which bears the title ‘De Origine et Progressu Disciplinae Juris Naturalis’, is the only general defence of his projects that Pufendorf makes. In few of his later pamphlets (collected finally in Eris Scandica (The Scandic Quarrel ), () does he raise himself above the minute debate of the minor details to which so much seventeenth-century polemic so quickly descended. But the particular importance of this first chapter was noted by contemporary reviewers.² To defend his achievement in jurisprudence by means of the history of the discipline was tactically necessary if the charge of incipient secularisation was not to be levelled plausibly at his controversial theory of the separate scope and methods of natural law and moral theology: innovation had to be concealed behind the unimpeachable authority of generally admired predecessors. Specifically, such a procedure would allow him to present his views as no more than an extrapolation of the moral opinions of respected Stoic writers: First of all are denounced the destructive, new and unheard of principles. These now are drawn from the consideration of nature and of man, as divine works, and they square them as much as possible with the sacred inheritance of the Stoics, but exactly with Christian religion’.³

But this formula was also autobiographically congenial, since it was by a study of the history of writing on moral philosophy that Pufendorf had come to appreciate how the defects of the work of his immediate predecessors could be remedied. It will be argued here that in the years  to , when Pufendorf was engaged in the planning and writing of De Jure Naturae, he moved away from the ‘geometric’ method of deductive argument which he had derived from his mentor Erhard Weigel, and used in his first work, Elementa Jurisprudentiae Universalis ² See for example Jean Le Clerc in Bibliothe`que Universelle et Historique, vol. XIII (Amsterdam, ), pp. –. He includes a five-page summary of the ‘history of morality’ given in the ‘De Origine’ which he regards as the most complete reply offered to Pufendorf’s enemies: ‘l’auteur ayant dessein de se justifier entie`rement des accusations qu’on lui a faites, les examine un peu plus long & plus me´ thodiquement que dans les Traitez pre´ cedens’ (p. ). ³ S. Pufendorf, ‘Epistola ad amicos suos’, in Eris Scandica, qua adversus libros de jure naturali et Gentium objecta diluuntur, ed. G. Mascovius (Frankfurt/Main and Leipzig, ), (originally ), p. . All references are to the  edition of Eris Scandica unless otherwise stated.



Natural Law Theories

(). Instead, he began to pay more attention to the contribution of pre-Renaissance moral philosophy. Two considerations seem to have inspired this change of direction: a desire to satisfy the criticisms of Johann Bo¨ cler and Hermann Conring that he handicapped his argument by his refusal to cite authorities; and, more crucially, the discovery that he could only preserve the Grotian account of natural law from the damaging criticisms of Hobbes by invoking the opinions of the Stoics on the source of moral obligation.⁴ Thus, in the sections of the De Jure Naturae which aim to provide the foundations of a science of morality to underpin the Grotian superstructure, the arguments depend crucially on extensive use of ancient sources. So by composing his chief reply to Alberti in the form of an excursus on the history of natural law as a discipline, Pufendorf combined an effective and implicit claim for philosophical respectability with an explicit account of the genesis of his own ideas. Given these intentions it is necessary to examine the course of his intellectual development in detail before presenting that history itself.       ’               In the years before his arrival at Heidelberg in  as the elector palatine’s first professor of natural law there is no evidence to show that Pufendorf had any academic interest in either the history of philosophy or contemporary political history, which were the areas of historiography to which he was later to be a significant contributor.⁵ This should ⁴ This link between Pufendorf, the problem posed by Hobbesian natural law and the heritage of the Stoics has been made by I. Hont in ‘The language of sociability and commerce: Samuel Pufendorf and the theoretical foundations of the ‘‘four stages theory’’ ’, in Pagden, The Languages of Political Theory, pp. –. However, Hont does not examine in detail the origins of this nexus of ideas. In particular he does not analyse the correspondence instigated by Baron Boineburg in  to identify the correct method for the systematic treatment of natural law; nor is the consequent initiation of the ‘history of morality’ by Pufendorf germane to his theme. Of course, it remains unclear whether Pufendorf was sincere in his defence of Grotius against Hobbes, and Palladini’s recent work argues powerfully for a lack of sincerity in Pufendorf’s attempts to distance himself from Hobbes, which tends to vindicate Leibniz’ early distrust of Pufendorf’s motives and strategies. ⁵ The actual title of the chair, which belonged to the philosophy rather than to the law faculty of the university, was Professor of International Law and Philology. But Pufendorf always described himself as the Professor of Natural Law, and all his work in the seven years of his tenure can properly be thus characterised. See J. Wille, ‘Zur Berufung Pufendorfs nach Heidelberg’, Zeitschrift fu¨ r die Geschichte des Oberrheins, Neue Folge,  (), p. . On the later stages of the Heidelberg period see also the recent article by D. Do¨ ring, ‘Samuel von Pufendorfs Berufungs nach Brandenburg-Preussen’, in Palladini and Hartung, Samuel Pufendorf und die europa¨ ische Fru¨ haufkla¨ rung, pp. –, and other relevant articles in Do¨ ring’s Pufendorf-Studien. Beitra¨ ge zur Biographie Samuel von Pufendorfs und zu seiner Entwicklung als Historiker und theologischer Schriftsteller (Berlin, ).

Socialitas and Pufendorf



not be attributed to ignorance of either subject since the first biographical study of Pufendorf after his death is at pains to stress his taste for broad erudition for its own sake, a taste which had been developed well before he began his studies with Erhard Weigel, professor of mathematics at Jena, in : ‘The desire for great and unusual learning led him to read the world-famous writings of the great Grotius [. . .] and others, which are replete with special and individual learning’.⁶ However, his early mentors, his elder brother Esaias von Pufendorf, and Erhard Weigel, were neither of them interested in the study of history itself, nor in a historical approach to philosophical subjects. Their influence was sufficient to inhibit Pufendorf’s use of any of his wide historical erudition at this stage. Instead, they helped to shape his early determination to find truth in ethics by demonstration alone. It was his brother’s success as a diplomat in the service of the Swedish court that determined Pufendorf to pursue a career in the academic study of politics and ethics.⁷ But it was Weigel who decisively influenced the method that he brought to the subject. Weigel was an enthusiastic polymath who had originally trained as a mathematician and astronomer. Later he had become a convinced Cartesian, intending to apply the new mathematical logic to all branches of philosophical study in order to produce a system that would replace the persisting scholasticism of the German universities.⁸ But in two important respects Pufendorf distanced himself from this programme. He never became a disciple of Cartesian rationalism, relying only on its contempt for argument from authority as the first and exclusive approach to a philosophical problem: However my attempts to refine natural law do not derive in any way from Cartesian principles: nor do they do have anything in common with his philosophy except a disregard on both sides for the authority of old teachers, insofar as they do not rely on sound reasoning.⁹

Secondly, he appears to have struck out on his own in seeking to apply this method pre-eminently to ethics. Whereas Weigel himself did not publish an application of the ‘geometric’ method to ethics until ,¹⁰ ⁶ P. W. Adlemansthal, ‘Denckwu¨ rdige Lebensmemoire und seltsame Fata des weltberuffenen Baron Samuels von Pufendorf’, appended to Kurtzer doch Gru¨ ndlicher Bericht von dem Zustande des H. R. Reichs Teutscher Nation, vormahls in Lateinischer Sprache unter dem Titel Severin von Monzambano (Leipzig, ), p. . ⁷ S. Pufendorf, Dissertationes Academicae Selectiores (Lund, ), preface, p. . ⁸ See E. Spiess, Erhard Weigel. Ein Lebensbild (Leipzig, ). ⁹ S. Pufendorf, Specimen Controversiarum, caput II, ‘De Novitatibus Philosophicis’, in Eris Scandica, p. . ¹⁰ E. Weigel, Arithmetische Beschreibung der Moralweisheit (Jena, ).

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Natural Law Theories

Pufendorf wrote confidently to Weigel immediately after his release from prison in Copenhagen in April , to assert his claims in this area: I make this earnest request of you, that since all the other areas of philosophy reveal themselves to you sufficiently for your field of ability to be demonstrated, you may wish to relinquish ethics to me as my own. I am confident that this study will be a source of some reputation and patronage for me. My work has undergone many changes, especially since it has been possible to understand the views on ethics of many recent authors whom I had not even known when I was studying with you. Once this work has attained maturity, as I hope that it will this summer, I shall have it printed in Holland, which is the best midwife for books.¹¹

This work in progress was the Elementa Jurisprudentiae Universalis, conceived and executed while he was a prisoner of the Danes in Copenhagen in –. It is an exclusively deductive work containing no citations whatsoever, since every body of doctrine ought to be complete in three parts, the first of which comprehends the Definitions, the second, the Principles, and the third, the Propositions or Conclusions derived from the Principles.¹²

But if the work employs Weigel’s method, nevertheless the choice of the area of application was Pufendorf’s own. It was in fact his first attempt to remedy faults in Grotius’ system, the defects of which had become apparent to him in the course of reconsidering both Grotius and Hobbes in his Danish prison.¹³ It was to be hoped that by submitting ¹¹ S. Pufendorf, ‘Briefe Pufendorfs an Falaiseau, Friese und Weigel’, ed. K. Varrentrapp, Historische Zeitschrift  (), pp. –. Pufendorf to Erhard Weigel ( April ). This letter is also available in the new edition of Pufendorf’s correspondence, Samuel Pufendorf. Briefwechsel, ed. Detlef Do¨ ring, vol. I, Samuel Pufendorf. Gesammelte Werke, ed., W. Schmidt-Biggemann (Berlin –), p. . Pufendorf was imprisoned for eight months in Copenhagen as a result of the renewal of hostilities between Denmark and Sweden (for whose representative in Copenhagen, Peter Julius Coyet, Pufendorf was acting as family tutor). ¹² S. Pufendorf, The Two Books of the Elements of Universal Jurisprudence, together with an Appendix on the Moral Sphere, trans. W. A. Oldfather (Oxford, ), preface, p. xxix. ¹³ Pufendorf’s imprisonment without access to books seems to have had the same creative results for him as incarceration did for Grotius in Holland between  and . In a letter of  Pufendorf concedes that the Elementa originated as a commentary on Grotius: ‘As a way of overcoming my depression here, I took it upon myself to reflect on what I had read in Grotius and Hobbes a long time ago, and to arrange the material according to my own judgement with some additions of my own’ (F. Palladini, ‘Le due letteri di Pufendorf al Barone do Boineburg. Quella nota e quella ‘‘perduta’’ ’, Nouvelles de la Re´publique des Lettres,  (), p.  (cf. Pufendorf, Briefwechsel, p. ). At the start of its composition it seems as if the De Jure Naturae was also intended to be a commentary, until Pufendorf realised that the genre of commentary had become debased and that a proper moral epistemology for Grotius’ theory could only be produced through an independent and systematic treatment of natural law: ‘It is said that he originally intended to let this book be published in the form of a commentary on Grotius; but since the commentaries on Grotius grew to an astonishing number, and began to become worthless, he altered this plan’ (Adlemansthal, ‘Denckwu¨ rdige Lebensmemoire’, pp. –).

Socialitas and Pufendorf



‘rather their arguments than their authority’ to the clarification and sifting of a purely deductive analysis a fully scientific understanding of the discipline would emerge, reliant only on logical inference and spurning citation from antiquity.¹⁴ It is important to note that Pufendorf’s appreciation of the compelling relevance of the work of these two distinguished predecessors rested simply on the quality of their arguments as objects for analytical appraisal, not on any interest in how their divergent opinions had developed, and certainly not in the history of the discipline before them. The historical importance of these figures is quite literally nominal, invoked casually in the preface to the Elementa just as a means of indicating the starting point of Pufendorf’s own speculative enterprise, and to pre-empt the charges of plagiarism that a complete absence of acknowledgements would have evoked. Pufendorf developed his historical interests further in the period – during his philological studies at the university of Leiden. However, it would be an error to attribute much importance to the editions of antiquarian material that resulted from this episode;¹⁵ these are characteristic of the work that a partially employed ambassadorial tutor would produce in that university at that time. They indicate no lasting scholarly commitment, nor do they anticipate any significant adoption of a historical method in Pufendorf’s main areas of interest in philosophy. Though the prospect is enticing, there is no evidence to warrant the claims of Oestreich and Krieger that ‘the larger explicit role which Natural Law was to play in the unifying scheme in Pufendorf’s later juristic works may be considered a probable effect of the Dutch period’.¹⁶ Although it is right to associate neo-Stoicism with Lipsius’ enduring intellectual legacy to Leiden, yet in none of his numerous autobiographical allusions does Pufendorf refer to this period of his intellectual life as formative. If it had been so we would have expected at least some revision of the method of the Elementa (held back for publication until ), and a repudiation of his earlier methodology before the Boineburg correspondence of , where in any case he does not attribute his change of outlook to any experiences gained in Holland. In Pufendorf’s early years at Heidelberg it is difficult to determine exactly what the direction of his interests was, since it is impossible to ¹⁴ Pufendorf, Elements of Universal Jurisprudence, preface, p. xxx. ¹⁵ Jo. Laurenbergii Graecia antiqua (Amsterdam, ); Jo. Meursii miscellanea Laconica (Amsterdam ); Jo. Meursii Ceramicus Geminus (Utrecht, ). ¹⁶ G. Oestreich, ‘Justus Lipsius als Theoretiker des neuzeitlichen Machtstaates’, Historische Zeitschrift,  (), p. ; L. Krieger, The Politics of Discretion: Pufendorf and the Acceptance of Natural Law (Chicago, ), p. .



Natural Law Theories

date with any certainty the various dissertations which were partly written and wholly supervised by him at this time.¹⁷ The earliest of them appears to be ‘The Achievements of Philip Amyntas’ where the respondens was the son of his previous employer, the Swedish diplomat, Baron Coyet, who is known to have matriculated in .¹⁸ This work is a preliminary attempt to work out his constitutional theory of sovereignty, to be further developed in De statu imperii Germanici (The condition of the German empire), (), a case study of the political health of the Holy Roman empire.¹⁹ In both these works the use of historical evidence is purely illustrative of the argument, not integral to its formation: Philip and the Macedonian state are simply an example of the success that Pufendorf believed to attend any state which vested sovereign power in a limited monarch and avoided mixed institutions: From these observations therefore it is apparent that the form of the state in Macedonia was not a mixed one, but that the kings did not have sheer absolute power either: they could rule over citizens who were most obedient in everything if they attached a virtuous reputation to their power, and commanded authority through their actions, and had shown experience in adjusting restraints to the national character. Especially since that people had an ‘ingrained respect for their kings’. (Curtius III.)²⁰

Historical evidence is used in the same restricted way in the larger work on the constitutional development of the Holy Roman empire. Only the recent history of the empire since the Treaty of Westphalia is considered in any detail, and in this case there is a clear polemical intention to refute the contention of the leading writer on German constitutional law, Hermann Conring (–), who had argued that a sovereign state, such as the empire purported to be, could exist as a res mixta with a division of power between emperor and estates. In contrast, Pufendorf maintained that while Conring was correct to argue that administrative institutions were a legitimately ‘mixed’ area, nevertheless the recent history of the empire since  showed conclusively that no division of sovereignty could long endure.²¹ ¹⁷ These were subsequently collected and published in Pufendorf, Dissertationes Academicae Selectiores. ¹⁸ G. To¨ pke, Die Matrikel der Universita¨ t Heidelberg von  bis , vol. II (Heidelberg, ), p. . ¹⁹ S. Pufendorf (Severinus de Monzambano), De statu imperii Germanici (The Hague, ), also available in the edition by H. Denzer as Die Verfassung des deutschen Reiches (Stuttgart, ). ²⁰ Pufendorf, Dissertationes Academicae Selectiores, p. . For an insightful recent analysis of the development of Pufendorf’s thought in relation to the empire see P. Schro¨ der, ‘The constitution of the Holy Roman empire after : Samuel Pufendorf’s assessment of its importance and constitutional Monstrosity in his Monzambano’, Historical Journal,  (), pp. –. ²¹ For a comparison of the views of Pufendorf and Conring on the future of the Holy Roman empire see H. von Treitschke, ‘Samuel Pufendorf’, in Historische und Politische Aufsa¨ tze (Leipzig, ), vol. IV, p. .

Socialitas and Pufendorf



This lack of concern for historical development both in positive law and in the theoretical refinement of concepts of natural law contrasts interestingly with the sensitive attitudes of Conring himself on both of these subjects, from which Pufendorf was soon to derive much benefit in the course of the various exchanges of letters in early  between Boineburg, Pufendorf, Conring and Johann Bo¨ cler. These exchanges established Pufendorf’s methodological procedures for the writing of the De Jure Naturae commenced in this year, and the course of this correspondence must therefore be followed in some detail.                         The general outline of the debate has been encapsulated in an eighteenth-century review of Pufendorf’s Elementa: Although subsequently he himself was unhappy with this work, and publicly recognised its defects, as a premature product of his youth, the work was nonetheless very well received by the public and made him known in the world in a highly advantageous way. The general view was that such a beginning augured very well for later. Baron von Boineburg, then chancellor of the Elector of Mainz, who wanted someone to undertake to provide a methodical system of natural law, and who had in vain urged several scholars to do so (among them Bo¨ cler, Conring, and Rachel), judged him capable of such a fine venture, and urged him to work on it. He produced his famous work De Jure Naturae et Gentium.²²

This commentator is correct to identify the origins of the debate in the critical reactions to the publication of the Elementa, since the first step in the exchange came in October  when Baron Boineburg sent an advance copy of the book to Conring. Outside his official duties Boineburg posed as something of a literary Maecenas. He engaged in an extensive literary correspondence and aimed to patronise fashionably controversial intellectual figures. However, in all this activity he relied on the advice of Conring, his former teacher at the university of Helmstedt, and no more so than in the case of his proposal for the systematisation of natural law, where the evidence points to Conring as the prime mover. Hermann Conring made his reputation as an expert on the historical development of German constitutional law as a result of his conclusive proof that Roman law was introduced into Germany not, as was then believed, in the Constitution of Lothair III of , but only gradually in the fifteenth century, following on the work of university ²² J. P. Nice´ ron (ed.), ‘Samuel de Pufendorf’, Me´moires de Nice´ron,  (), pp. –.



Natural Law Theories

jurists.²³ He consolidated this early success with a further work tracing the historical development of the boundaries of the Holy Roman empire up to and including the Treaty of Westphalia.²⁴ However, it has not often been remarked that distinct from these historical interests he deployed a sophisticated theory of jurisprudence that went beyond narrow Aristotelianism, and which included sympathetic consideration of the modern writers on natural law. We need to understand what this attitude was before we can hope to comprehend the stance he adopted towards Pufendorf’s work. For seven years between  and  Conring was educated at Leiden. Here the main influences upon him were Aristotelian teachers such as Burgersdicius and Barlaeus. His strong hostility towards Lipsius also dates from this period, as must his reading of Grotius.²⁵ Certain basic principles of Aristotelian ethics run through all his writings: for example he always maintained a clear separation between the studies of natural law on the one hand and positive law and political science on the other; both of the latter were seen as strictly empirical studies where the relativist circumstances of the particular state concerned bulked larger than the theoretical universals of natural law. It was the utilitas of that corpus of law that was its source of justification: ‘All public law in any state is simply positive law . . . public usefulness is the essence of public law, and private usefulness that of private law’.²⁶ This separation of theory and practice seems to have been reinforced by his reading of Machiavelli, whose Prince he re-published in a new edition.²⁷ In a letter to Leibniz of  he makes it abundantly clear that the law of nations is not only mutable according to circumstances but may also contain measures contrary to what would be seen as natural law: It cannot happen that universal principles of natural law may be ratified in every type of state; for the public interest of any state demands that as many laws as are contrary to natural law are passed over unnoticed. Certain types of state cannot be either ruled or preserved simply through good practices, and ²³ H. Conring, De Origine Iuris Germanici (Helmstedt, ). For some insightful general comments on Aristotelian political theorists in Germany in the earlier seventeenth century see R. Tuck, Philosophy and Government, – (Cambridge, ), pp. –. ²⁴ H. Conring, De Finibus Imperii Germanici (Helmstedt, ). ²⁵ For Conring’s education see H. Dreitzel, ‘Hermann Conring und die politische Wissenschaft seiner Zeit’, in M. Stolleis (ed.), Hermann Conring (–). Beitra¨ ge zu Leben und Werk (Berlin, ), p. . ²⁶ H. Conring, Omnia Opera, ed. J. W. Goebelius (Brunswick, ), vol. II, p. . ²⁷ N. Machiavelli, Animadversiones Politicae in Nicholai Machiavelli Libro de Principe, ed. H. Conring (Helmstedt, ).

Socialitas and Pufendorf



consequently they do not only permit but even require many acts of unjust policy.²⁸

In the case of political science, any general principles of human conduct could only be generated from detailed observation of the history and contemporary politics of the country under consideration. It was the main thesis of his most elaborate treatise on political theory, De civili Prudentia (), that from the analytical consideration of such experientia followed demonstratio.²⁹ Hence Conring never wrote on natural law theory himself, since it lay quite outside both the definition he offered of political science and his practice of it in his books on state forms in Germany. But this negative judgement on the practical relevance of natural law should not lead to the conclusion that Conring undervalued the purely philosophical study of the subject. In fact he was clear that it was a branch of philosophy that had received insufficient treatment from Antiquity onwards: ‘And indeed this philosophy has for a long time been the most distinguished, but up to the present it has not been sufficiently and worthily developed by anyone’.³⁰ This failure derived from a reluctance to study the subject on its own terms in separation from Roman and canon law: Of those who have made a contribution in this area, the greater number of them did not do so in single focus as was appropriate, but casually among questions of civilian Roman and Canon law: both the interpreters of the civil law and those whom we call casuistical theologians have repeatedly acted in this way.³¹

His judgement on the current seventeenth-century developments reveals the full ambiguity of his position: he recognised the importance of the achievement of Grotius and his successors in studying natural law in proper isolation, but was not willing to concede that they had surpassed Aristotle in the general task of reducing ethics to a science: All natural law belongs to moral philosophy, a large part of which they have indeed developed outstandingly in our own time. Among these writers Hugo Grotius is the finest, but none of them has so far reduced all moral philosophy to one body after Aristotle’s example.³² ²⁸ Conring to Leibniz ( February ) in G. W. Leibniz, Die Philosophischen Schriften von Gottfried Wilhelm Leibniz, ed. C. I. Gerhardt (Berlin, ) vol. I, p. . ²⁹ See P. Herberger and M. Stolleis, Hermann Conring –. Ein Gelehrter der Universita¨ t Helmstedt (Go¨ ttingen, ), p. . ³⁰ Leibniz, Die Philosophischen Schriften, I, p. . ³¹ Ibid. ³² Conring, Omnia Opera, VI, pp. –.



Natural Law Theories

Whereas Aristotle offered an unsatisfactory account of natural law because he did not treat of it in isolation as it deserved, the natural law writers were inadequate because their arguments did not have the demonstrative force of the apodeictic method: Grotius was the first to consider this doctrine in separation and to arrange it in a single framework. He was followed by Pufendorf and, as it happened, by Hobbes. However, with all these writers you would have found fault in like manner to me, in that they did not prove their opinions through the apodeictic method; they were content to set out reputable views and in a logical manner, whilst true knowledge cannot be procured except by demonstration. I am not very surprised that they followed this course, when Aristotle himself made mistakes in this field, not however through lack of skill in apodeictic technique, but through a certain ignorance of moral principles.³³

This judgement was offered to Leibniz in , seven years after the correspondence that concerned Pufendorf; but it may stand as a summary of the attitude that Conring was to adopt in that correspondence towards Pufendorf’s work, since he had not by  seen the revision and reworking of material carried out in De Jure Naturae, and therefore his knowledge of current developments in the discipline of natural law stood as it had done in . Throughout the correspondence Conring recognises the pressing need for a work with the systematising intentions that Pufendorf adumbrates in his letters to Baron Boineburg; but he remains sceptical as to whether Pufendorf has achieved this goal in the Elementa or will do so in future works if he continues to avoid reference to the writings of ancient philosophers and pursues Weigel’s ‘geometric’ method in isolation. Yet one should not overstress the differences between Conring and Pufendorf: if, as we shall see, it is correct to describe Pufendorf’s later philosophical writings as ‘eclectic’ in method, then it is also possible to say that Conring was moving in the same direction in his own work. There is the same concern to rework and revive the doctrines of ancient philosophy where it can be clearly shown that they have a direct application to the solution of current philosophical problems.³⁴ The main difference is that whereas Pufendorf brings the evidence of a range of past philosophers and recent predecessors before the tribunal of his own rational assessment, Conring restricts his sources to Aristotle: We only know as much as we can grasp through our own judgement . . . That would be sufficient if we install Aristotle as the leading scholarly authority, – not ³³ Leibniz, Die Philosophischen Schriften, I, p. . ³⁴ On this issue see the opinion of Dreitzel quoted at p.  infra.

Socialitas and Pufendorf



for him to be a dictator, as the Republic of Letters does not allow for dictatorship – but for him to give his opinion in the first instance.³⁵

However, in simple point of method both writers have moved a long way from obsequious acceptance of argument from authority. Boineburg’s project for the creation of a system of natural jurisprudence was circulated at the end of  to a number of scholars. But this disguised the degree to which it was deliberately devised by Conring as an attempt to induce Pufendorf in particular to go beyond his work in the Elementa. The focus on Pufendorf is clear from the letters that survive between Boineburg and Conring for the period –: very soon after receiving his copy of the Elementa in October  Conring replied with an unmitigated enthusiasm: ‘But that book exceeded my expectations . . . After Grotius I have seen nothing like it’. He was adamant that this inquiry should be taken further by the author: ‘It is very desirable that those Elements are expanded into an appropriate work, and that what has been planned should be published: then there can be a thorough debate on these matters. This would be very worthwhile’.³⁶ That this was no isolated enthusiasm is shown by Conring’s renewed praise when Boineburg announced at the end of  that he proposed to visit Pufendorf in Heidelberg.³⁷ A recently discovered letter written by Boineburg after his return to Mainz reveals that the purpose of this visit had been to deliver formally the electoral request for work on a systematic body of jurisprudence. That Boineburg should keep Conring informed of his plans throughout this episode and should also promise to send all of Pufendorf’s replies to him for his perusal indicates that Conring himself had been the driving force behind this commission, which had simply been more compellingly communicated under the guise of an extraordinary electoral commission: Now that I have returned to Mainz from Heidelberg I seem to acquire more leisure for writing up what I have achieved on your behalf in the company of ³⁵ Conring, Omnia Opera, V, p. . ³⁶ G. W. Leibniz, Commercium Epistolicum Leibnitianum, ed. J. D. Gruber, vol. I (Hanover and Go¨ ttingen, ), pp. –, Conring to Boineburg ( October ). In the following discussion all quotations from letters between Boineburg and Conring are drawn from the latter volume; the two letters of Pufendorf to Boineburg are quoted from the recent edition by Palladini cited in n.  supra (they are also available in Pufendorf, Briefwechsel, pp. –); and references to Bo¨ cler’s letters to Boineburg are taken from the preface to vol. VI of the edition of Conring’s Opera Omnia specified in n.  supra. These texts are considerably more reliable than Christian Thomasius’ collection of the correspondence in Paulo plenior Historia Juris Naturalis, appendix II, pp. –. ³⁷ Leibniz, Commercium Epistolicum Leibnitianum, I, p. : Conring to Boineburg ( November ).



Natural Law Theories

Spanheim and Pufendorf. The former has received the booklet which you sent to him in good order. And the latter commends himself to you with the utmost warmth; about our common interests, and especially about the study of public law, which the Elector has charged him with the duty of professing in the manner of Grotius, he will later have an exchange with me by letter. Who would doubt that I shall engage you in this exchange?³⁸

Pufendorf’s reply to this commission consisted of a long letter cast in the form which was to become characteristic of the prefaces with which he introduced his later writings: a preamble of intellectual autobiography, leading to a justification of his present beliefs and his plans for future works. He identifies the starting point for his independent intellectual career in his recognition that argument from authority is not a sacrosanct method in ethics: ‘once that scruple had left my mind that it is forbidden to depart from reiterated precepts, I seemed to perceive very clearly how much foolishness there was in very many disciplines which remain a matter for reflection alone’.³⁹ This realisation led him to conclude that as far as the study of wisdom ‘about moulding one’s morality to the correct form’ was concerned, there were two important defects: the lack of any certain knowledge as such, and the patent inadequacy of the Aristotelian commentaries that claimed to be textbooks of morality. As a result, he experienced a revulsion from authorities: ‘This caused me to begin to tire of almost all that kind of study, and to spend my time unravelling ancient authors’.⁴⁰ He then proceeds to relate the circumstances of the composition of the Elementa; its origin as a commentary on Grotius and Hobbes; and his own intention, irrespective of Boineburg’s invitation, to pursue further his work in this field: Apart from the fact that this book requires much more careful polishing, and that I myself find it very unsatisfactory now that initial love with which we embrace our offspring has cooled, I seem to have convinced myself how necessary it is to create a more accurate and complete work in this genre.⁴¹

After considering why the recent efforts of others in this field have come to nothing he concludes that both lawyers and philosophers have been too hidebound within their own disciplines.⁴² Then he addresses at length the merits and failings of the two methodologies most likely to ³⁸ Palladini, ‘Le due letteri di Pufendorf’, pp. –, from a source in the Herzog August Bibliothek, Wolfenbu¨ ttel: MSS Extravagantes f.  v. Boineburg to Conring ( December ). ³⁹ Ibid., p. . Pufendorf to Boineburg ( January ). ⁴⁰ Ibid., p. . ⁴¹ Ibid. ⁴² Ibid., p. .



Socialitas and Pufendorf

produce a science of natural law, the mathematical method of Weigel, and the sociological approach of Grotius: In my view there are two routes presented here, and it may be understood after following one of these who has constituted philosophical schools correctly: the followers of the first route are above all mathematicians, who love to derive a huge body of conclusions from a few first principles; the second way is trodden by those eager to investigate natural phenomena so that through observation and comparison of many individual instances they may finally arrive at some general statement.⁴³

He launches a vigorous attack against the Grotian technique of observing the customs and laws of selected countries in order to extract eternal principles of natural law. This approach was open to all sorts of sceptical objections. First, the technique of amassing instances could easily be ridiculed by the citation of counter-examples outside the experience of the observer: ‘You will find few who can boast of knowing the number and names of all the peoples in the world: it would be beyond the powers of one man to assemble or comprehend all their laws and institutions’.⁴⁴ The method could also be impugned on grounds of cultural imperialism, for the positive laws of European countries are inevitably accorded importance at the expense of the legislative product of oriental countries: ‘From this one may rightly infer that many laws which we consider to be handed down to us through nature, are not in fact strictly essential to human society’.⁴⁵ Grotius’ method is not without value as a useful contribution to the study of Jus Gentium; but as a method for extracting the essence of natural law it must be firmly rejected: It is not, as some may say, that we should not be concerned about barbarian peoples. It is sufficient for our purpose to consider those conventions observed by the more moral peoples: from comparison of these some complete system of the law of nations can be compiled. But apart from the fact that this is a huge undertaking, who can clearly judge which race should be categorised among the barbarian and which among the civilised peoples?⁴⁶

But if Grotius’ method is unsatisfactory, then so, too, is the rival mathematical method of Weigel. The paragraph in which this method is edgily defended is especially relevant because it reveals the exact, current and radically confused stage of Pufendorf’s own thinking. He is still prepared to defend the approach he had adopted in his Elementa, but this defence is increasingly half-hearted, and indeed breaks off unresolved: ⁴³ Ibid., p. .

⁴⁴ Ibid.

⁴⁵ Ibid., p. .

⁴⁶ Ibid., pp. –.



Natural Law Theories

Therefore once I had rejected this method I judged that I should above all follow the mathematicians in this area, so that some fixed principle might be established which no rational person would dare question, and from which might be deduced all that belongs to everlasting and universal law. However, such a foundation is not so easy to find. Hitherto most scholars have thought it as praiseworthy as possible to appeal to the dictate of sound reason. But unless we rely upon some fixed principle who will be the judge of where right reason may be identified? One in how many scholars is it who thinks that his mind is sufficiently made up when he has appreciated that someone disagrees with the view he himself approves? It is considered disgraceful not to regard those who disagree as stupid. But it is a difficult knot to untie how we can be constrained by the bare dictate of our reason in such a way that the opposite course is entirely forbidden to us. Of course for this very reason Selden is apparently moved not to treat of natural law in general, but just of that part which is regarded as such by the Jews, and to derive the obligation of that law from the direct order of God.⁴⁷

It is clear that the starting point of a mathematical method, the quest for a fundamentum or first principle is still a necessary aspiration if the errors of the Grotian method are to be avoided. Nevertheless, Pufendorf is strikingly unclear as to how this principle should be identified. Appeal to sana ratio is simplistic since the reasoning of different scholars may produce dissentient assessments. Nor does he allow Selden’s contention that God’s fundamenta principia of natural law are to be found in the positive law of one historical nation. At this point when sociological observation, deductive logic and the history of positive law have been rejected successively as ways to true science in natural law, Pufendorf breaks off and shifts his ground. Abandoning the issue of how moral certainty is to be found, he discusses instead how to formulate entia moralia in genere as a necessary precondition to the construction of any system of natural law.⁴⁸ But in so doing he avoids giving any definite indication of the method he will actually use in his forthcoming attempt at a systematic treatment of natural law. The issue is still up in the air, and it is this uncertainty and underdefinition which allows the other contributors to the correspondence to assist the shaping of Pufendorf’s methodology significantly. Boineburg sent Pufendorf’s letter to Conring and Johann Bo¨ cler (–), professor of law at Strasbourg, and invited their opinions. They both responded before the end of January . Conring’s was predictably an enthusiastic judgement: he endorsed Pufendorf’s criticisms of the existing condition of the study of natural law, and more surprisingly conceded much of Pufendorf’s critique of Aristotelianism: ⁴⁷ Ibid., pp. –.

⁴⁸ Ibid., p. .

Socialitas and Pufendorf



First I think that his complaints are appropriate about those who have undertaken to teach ius morale in public, and yet remove all power of demonstration from that doctrine . . . Not without reason does the same man complain of a failing of Aristotle’s in this area.⁴⁹

However, Conring was also quick to notice the central hesitations in Pufendorf’s exposition of his project: I would also have preferred that Pufendorf had after all added what are, in his judgement, finally the true principles of this philosophy, especially when he does not wish to be seen to approve those of Hobbes.⁵⁰

Here Conring pinpoints the fact that Pufendorf had so far failed to reconcile Grotius’ belief that sociability was an observed fact of societies with Hobbes’ notion that sociability was a pragmatic individualist calculation. The contribution from Bo¨ cler, on the other hand, was explicitly aggressive. He was outraged by Pufendorf’s apparent arrogant disdain for precursors in antiquity: I would much prefer that Pufendorf had achieved as much familiarity with the ancient Greek and Latin authors as he wishes to seem already to have gained: no one deceives me easily in this regard, as I myself have rolled this rock for far too long a time.⁵¹

Not only was this contempt for sources reprehensible in itself, but it also undermined Pufendorf’s claim to be an accurate interpreter of Grotius: ‘And by far other traces of such skill would be visible in Pufendorf’s work by now if he mastered this ability. That he has not even in Grotius understood anything sufficiently or appreciated it, I am most convinced of ’.⁵² As for Pufendorf’s methodological proposals, Bo¨ cler shared Conring’s scepticism. He did not believe that there had been any advance from the geometric method employed in the Elementa: At first it is a cause of wonder that he presents a method to you, most distinguished Sir, so perceptive a judge, as if it were new, finally now within reach, and to be employed in his future work – when in fact it is the very same method as was used in the Elements.⁵³ ⁴⁹ Leibniz, Commercium Epistolicum Leibnitianum, I, p. : Conring to Boineburg ( January ). ⁵⁰ Ibid. ⁵¹ Conring, Omnia Opera, VI, p. : Bo¨ cler to Boineburg ( January ). Bo¨ cler’s career and his sustained opposition to Pufendorf has recently been surveyed in F. Palladini, ‘Un nemico di S. Pufendorf: Johann Heinrich Bo¨ cler (–)’, Ius Commune. Zeitschrift fu¨ r Europa¨ ische Rechtsgeschichte,  (), pp. –. ⁵² Conring, Omnia Opera, VI, p. . ⁵³ Ibid.



Natural Law Theories

Finally, he complains that no fair and thorough comparison has been made by Pufendorf of his a priori method and the alternative method of argument from sources in ancient philosophy. Since Grotius had employed a mixture of both methods it was surely incumbent upon the self-styled perfecter of Grotius to make such an evaluation: ‘I do not know whether he contrasts that a priori method sufficiently clearly with the method based on authorities and examples. Since Grotius both joined each of them together and decided that ancient views ought not to be separated in practice’.⁵⁴ There was a tendency in the generation of writers immediately after Pufendorf to dismiss Bo¨ cler as a pedantic antiquarian whose interest in and understanding of Grotius’ work went no further than the identification of manifold unattributed sources in De Jure Belli ac Pacis.⁵⁵ But in this correspondence Bo¨ cler had touched on issues of real importance, even though his acerbic style contrived to present his contribution as the pique of one Grotian commentator on the work of another. This point was perceived by Conring, who after reading Bo¨ cler’s letter, deplored its rhetoric but endorsed its criticism of Pufendorf’s neglect of the authority of earlier authors: I too have always thought that Pufendorf is not quite experienced enough in reading the ancients. Rather, he seems to despise them, placing his trust in his own talents. Yet I do not doubt that he can provide a good deal if he has applied his abilities: he however would offer much more if whilst handling the books of ancient and modern writers with great care he would restrain the fiery rushes of his mind to a cautious and moderate attitude.⁵⁶

But Pufendorf’s second letter to Baron von Boineburg sidesteps the criticism of the evasiveness in his first letter, and fails to appreciate the point behind the condemnation of his neglect of previous moral philosophy. He is reluctant to recognise that the history of philosophy had anything other than a subsidiary role to play in confirming an a priori set of deductive fundamentals. In a sense he was reiterating the criticism he had made of Conring’s claims that positive law could be used to form a system of natural law; the evidence of authority served only to confirm or refute the truth of an anteriorly propounded set of principles: ⁵⁴ Ibid., p. . ⁵⁵ The standard line is represented by the judgement in Me´moires de Nice´ron, , p. : ‘He was a very learned man in the study of Antiquity, and it was for this reason above all that he was so charmed by Grotius’ book where there is so much erudition. Apart from this, however, his reasoning was not strong, nor did he have a clear and precise mind.’ ⁵⁶ Leibniz, Commercium Epistolicum Leibnitianum, I, p. : Conring to Boineburg ( February ).

Socialitas and Pufendorf



As far as those writers are concerned who seem to be relevant for my undertaking, few of them can help in the devising of principles and foundations; but once these have been properly constituted, then they supply copious amounts of material for the creation of a complete corpus of this jurisprudence so that apart from the question of elegant organisation the principal labour is devoted to providing accurate proof, according to my own principles, for what has already been transmitted by them.⁵⁷

At this stage in his work Pufendorf is content to reiterate Grotius’ theory without paying any serious attention to Hobbes’ criticisms of it: I judged that the first principle and source of all that can be known in this discipline was nothing else than the sociability of human nature. It is clear that this has been devised by the Creator himself . . . And I did not think that Hobbes, when he established the opposite of this view as his starting point, wanted it to be considered as a serious assertion, but rather as a pure hypothesis and one from which the laws of nature could be expounded as from an absurd or impossible basis.⁵⁸

But as Bo¨ cler argued in his second letter (the last item in the correspondence), this was wholly to mistake the aim of the objections he had raised. Bo¨ cler’s contention was simply that Pufendorf’s claim to be the successor to Grotius was vitiated by his reluctance to examine the process of historical reference that had been a crucial means to the creation of Grotius’ book. If he had done this he would not have made the mistake of claiming priority for a concept of the fundament of natural law which was in fact Cicero’s – an antecedent recognised and integrated by Grotius: He writes that in his undertaking there is no help to be had from good writers, a view one might marvel at, if one does not recognise how massively and variously his talent is dependent on the best reasonings of Grotian argument . . . If the socialitas of human nature is Pufendorf’s first principle, then he ought to know first of all that it is not the fruit of his own talent, but that Cicero in his de officiis and others, even before Theognis was known, sought to extract all the precepts of law and duty from this source.⁵⁹

Bo¨ cler was in a position to dogmatise on this issue because he had spent so much of his career using his vast erudition in ancient philosophy to track down unacknowledged references in Grotius: his  edition of book one of De Jure Belli was essentially a compilation of these ascriptions, and in his preface he insists on Cicero’s importance in the sequence of disguised indebtedness he had unearthed: ⁵⁷ Palladini, ‘Le due letteri di Pufendorf’, p. : Pufendorf to Boineburg ( February ). ⁵⁸ Ibid. ⁵⁹ Conring, Omnia Opera, VI, p. : Bo¨ cler to Boineburg ( March ).



Natural Law Theories

The whole glory of the Latin philosophers is represented in Cicero, whose two works (the de legibus and especially the de officiis) can speak volumes on this subject . . . Grotius is indebted at many points to these books, even when he does not show it’.⁶⁰

In his commentary on section ix of Grotius’ ‘Prolegomena’ to De Jure Belli (the section that identifies the basis of natural law in the Stoic concept of oikeiosis), he is quite explicit in attributing the derivation of Grotius’ doctrine to sources in antiquity. It is this perception which provides the context for his exasperation at Pufendorf’s alleged innovations: But Grotius’ view on the origin of natural law, which he sets out in his Prolegomena, should not be broken up or mutilated. For he says that natural law arises from an noble desire for society, and through the judgement of right reason indicating conformity or disharmony with human nature, and even from divine will, which is not only part of nature, but also (as Christians know very well) renewed in the Decalogue and revealed clearly by writings. Many of these points stem from Cicero, and Cicero took them from the Stoics above all, although Aristotle and Plato were of a like mind.⁶¹

Pufendorf clearly was not initially receptive to all these methodological recommendations; but they do seem to have become of decisive importance in the course of the composition of De Jure Naturae et Gentium, which was completed before his arrival in Sweden in  to take up his professorial chair at Lund. We know of no other formative intellectual experience that occurred in the intervening years. If such an event had happened, then a writer as garrulously autobiographical as Pufendorf would not have resisted a reference to it in the final collection of his polemical writings, the Eris Scandica. On the contrary, there is considerable evidence, both internal to De Jure Naturae and circumstantial to its publication, which suggests that Pufendorf spent much of his remaining time at Heidelberg engaged in re-reading ancient works on moral philosophy, especially Stoic ones, once he realised that they could be of substantial and not merely cosmetic assistance to him in refuting Hobbes. In a note appended to his edition of the Boineburg correspondence, Christian Thomasius, who as Pufendorf’s friend and follower was uniquely qualified to know, testifies to the direct influence of Bo¨ cler’s words on Pufendorf’s studies: Pufendorf was not able to refute these accusations of Bo¨ cler concerning his neglect of ancient writers more effectively than by actually citing those authors ⁶⁰ J. Bo¨ cler, In Hugonis Grotii Jus Belli et Pacis Librum Primum Commentatio (Giessen, ), praefatio, p. . ⁶¹ Ibid., p. .

Socialitas and Pufendorf



everywhere in his Institutiones juris naturae et gentium, which was published afterwards, and by drawing evidence and examples from them.⁶²

The preface to the first edition of De Jure Naturae makes a point of stressing the use of ancient sources: ‘That I have not detracted from the honour due to antiquity is clear from the way in which on every occasion I prefer to cite the ancient authors to witness to my theses’.⁶³ And in the same preface there is an implicit tribute to Bo¨ cler; for Pufendorf writes in relation to misinterpretation of Grotius that ‘certain learned men have, indeed, essayed to remedy these defects by editing the books of his Law of War and of Peace with notes, and one or two of these commentators have rendered a service that is not to be scorned’.⁶⁴ In the process of scrutinising ancient authors he abandoned the rigour of Weigel’s deductive method in favour of that method which his followers were to designate ‘eclectic’: sana ratio is still the criterion of assessment but the basic materials upon which human reason must pronounce in moral philosophy are from now on the writings of previous moral philosophers. The result of the examination of this legacy in the light of the needs of the present yields those truths of unchanging validity which comprise ethica universalis. The initial impetus for this considerable shift in Pufendorf’s method had come from the archetypical Aristotelian, Hermann Conring, and it is regrettable that we do not possess his considered verdict on De Jure Naturae. In a letter of  he appears to approved of the finished product, despite his initial reservations: ‘Pufendorf’s book is in many respects satisfactory; some things, however, initially appeared by no means proven’.⁶⁵ But it would be unwise to infer much from this brief reference. Ultimately Conring remained a supporter of the old order in ethics with the significant difference that he never regarded either the study of natural law as fully developed, or his mentor Aristotle as ⁶² Thomasius, Paulo plenior Historia Juris Naturae, appendix II, note n. p. . The same point is made by Brucker in his Historia Critica Philosophiae, where C. A. Heumann is cited as the authority: ‘In one year at Heidelberg he read more books than Beckmann looked at in a lifetime . . . he not only gained an outstanding knowledge of ancient literature by means of which he afterwards adorned his work on the law of nature and of nations, but he also had around him a great number of students devoted to study and hanging on his words’. (Historia Critica Philosophiae, vol. V, tomus IV, pars altera, liber II, caput IV, § xiii, p. ) ⁶³ S. Pufendorf, The Law of Nature and of Nations,  edn, trans. C. H. Oldfather and W. A. Oldfather (Oxford, ), preface to the first edition of , p. viii. In general the eighteenthcentury translation of Basil Kennett is preferable; but the Kennett edition omits the two prefaces of  and  in favour of Barbeyrac’s ‘An Historical and Critical Account of the Science of Morality’. ⁶⁴ Ibid., p. vi. ⁶⁵ Conring, Omnia Opera, VI, p. .



Natural Law Theories

infallible. However, Pufendorf himself was in no doubt concerning Conring’s role in the genesis of the new work; it was to him that he wrote from Stockholm immediately after the completion of the book in May : For some while I have wanted to express either personally or by letter the respect in which I hold you, not only for your outstanding literary distinction, but also for the many signs of the fairness with which you have received any of my efforts . . . now finally necessity urges me to discharge what I have owed you for so long . . . I moved here [i.e. to Stockholm] several days ago to settle some business, as well as to present for your verdict my work on the law of nature and nations, comprising eight books . . . Whether this book has been worth while will be for you and those like you to decide.⁶⁶

                               A recent commentator on Conring’s moral and political writings has suggested that, by virtue of his position in late humanism, Conring himself anticipated the eclectic method: Conring’s affiliation to late Humanism was certainly the pre-eminent characteristic of his position: its distinguishing feature was to refer back to an author or a ‘school’ in Antiquity as an authority, not so as in a way to restore their system, but to develop further their basic concepts and way of thought independently, and to bring them to bear on his own era for the acquisition of new knowledge and the conquering of new problems.⁶⁷

But, if so, then little of this impact was transferred by him to the field of natural law where Aristotle was still the only source of importance to which he referred. As we shall see, what was new in Pufendorf’s work was a broadened range of authorities, and the systematic, self-aware application of this method as the exclusive technique for the creation of a moral science. Pufendorf himself was quite self-conscious about the need for a new methodology where a discipline was in its infancy, and the appropriate principia cognoscendi upon which it should operate had yet to be agreed upon. In , in response to what was clearly a direct request to describe his philosophical method, Pufendorf wrote to Christian Thomasius to confirm his allegiance to eclecticism early on in his career: ⁶⁶ Leibniz, Commercium Epistolicum Leibnitianum, I, pp. – and . ⁶⁷ Dreitzel, ‘Hermann Conring’, in Stolleis, Hermann Conring, p. .

Socialitas and Pufendorf



[You] My dear Sir, prefer the Eclectic sect to all others in philosophy, and I have also been in this sect. Taken in isolation it is not the best, except where knowledge has not yet been strictly deduced from principles. Where this has happened, then it has no further role e.g. in geometry, and were moral and natural philosophy reduced to true knowledge, then eclectic philosophy itself would cease as well.⁶⁸

While he never entirely abandoned his belief that moral verities could be demonstrated analogously to geometry, in his actual practice Pufendorf was content to revive and reduce existing knowledge to a clear system. In the second chapter of Specimen Controversiarum entitled ‘On innovations in philosophy’ he distinguished sharply between two kinds of innovation: there was innovation along Cartesian lines which challenged Aristotelian orthodoxy (of which his opponents had been quick to accuse him); but there was also that form of innovation which strove to sift the truth from existing doctrines and to organise those doctrines into a set of coherent moral principles grounded on a manifest epistemology. It was simply philosophically crude for Alberti and others to assimilate him automatically to Cartesianism since to oppose the moral philosophy of Aristotle did not ipso facto put a modern philosopher in the company of Descartes. He could say with perfect justice: ‘However my attempts to refine natural law do not derive in any way from Cartesian principles’, since Descartes himself had been unable or unwilling to extend the implications of his new logic into the field of ethics.⁶⁹ Pufendorf’s exasperated assertion that ‘I waged hand-to-hand combat with Hobbes while Descartes did not treat with moral philosophy’, deserves our sympathy.⁷⁰ And it was the technique of ‘synthetic’ innovation that Pufendorf believed would win that battle: That kind of innovation which in no way deserves refutation consists not so much in bringing to light new truths as in refining old ones and adorning them in an appropriate way – by which materials that were scattered and confused up to this point are rearranged into a skilful structure and are established by demonstrations: it is only worth the effort when it is added onto received wisdom. Such toil earns the same praise in literary affairs as when the public ⁶⁸ S. Pufendorf, ‘Briefe von Pufendorf’, ed. K. Varrentrapp Historische Zeitschrift,  (), p.  (Pufendorf, Briefwechsel, p. ) Pufendorf to Thomasius ( June ). Another passage which approaches an explicit endorsement of eclecticism in its stress on the need to think for oneself occurs within a brief text on the education of young noblemen: S. Pufendorf, ‘Unvorgreiffliches Bedencken Wegen Information eines Knaben von Condition’, Samuel von Pufendorf. Kleine Vortra¨ ge und Schriften. Texte zu Geschichte, Pa¨ dagogik, Philosophie, Kirche und Vo¨lkerrecht, ed. D. Do¨ ring (Frankfurt/Main, ), pp. –, with the relevant passage at p. . ⁶⁹ Pufendorf, Eris Scandica, p. . ⁷⁰ Ibid., p.  (trans. in Krieger, Politics of Discretion, p. ).



Natural Law Theories

roads are repaired by the magistrates, and they are rendered flat and straight, through the removal of roughnesses and bends.⁷¹

Notwithstanding the impersonal nature of this description, it is difficult to see this exposition as anything other than a clear statement of Pufendorf’s own mature practice as an eclectic philosopher: and if one examines the first three books of the De Jure Naturae where the author’s acknowledged intention is to define the law of nature and defend that definition against Hobbes and other critics, one is immediately struck by the way in which a complex pattern of citations is made integral to, and not merely supportive of, the argument. Horst Denzer has shown that in the book as a whole there are  major references to Stoic authors, far more than any other individual ancient philosopher or school of thinkers receives.⁷² The bulk of these citations occur in the early sections of the book and there is a particular concentration in the second chapter of book II entitled ‘On the Law of Nature in general’. It is here that we may observe Pufendorf’s eclectic method in operation combining conceptual analysis of both a modern author (Grotius), and of ancient Stoic insights, to rebut central contentions from De Cive. Pufendorf’s definition of natural law distinguishes itself at the outset from the normal premises of natural law theories in that it avoids reference both to the observed moral behaviour of societies and to divine institution. Instead, it is grounded solely on a calculation of self-preservation, which had been Hobbes’ own point of departure: Man is an Animal extremely desirous of his own Preservation, of himself expos’d to many Wants, unable to secure his own Safety and Maintenance, without the Assistance of his Fellows and capable of returning the Kindness by the Furtherance of mutual Good . . . Now that such a Creature may be preserv’d and supported . . . it is necessary that he be social . . . This then will appear a fundamental Law of Nature, Every Man ought, as far as in him lies, to promote and preserve a peaceful Sociableness with others, agreeable to the main End and Disposition of the human Race in general.⁷³

This contention is then backed up with a long quotation from Seneca’s ⁷¹ Ibid., p. . ⁷² H. Denzer, Moralphilosophie und Naturrecht bei Samuel Pufendorf (Munich, ), p. . The detailed breakdown of citations according to authors is as follows: Cicero:  references; Seneca:  references; Marcus Aurelius:  references; Epictetus:  references (including those derived through Arrian). ⁷³ S. Pufendorf, The Law of Nature and of Nations, ed. J. Barbeyrac, trans. B. Kennett (London, , th edn), book II, ch. , §xv, p. .

Socialitas and Pufendorf



De Beneficiis, the theme of which is that ‘Man is by Nature weak on every Side: Society fortifies his Infirmity and Arms his Nakedness’.⁷⁴ Pufendorf then proceeds to cite what he calls other ‘less principal Causes . . . of a sociable nature in Men’, in which he uses three lengthy quotations from Cicero to demonstrate man’s psychological compulsion to a sociable life.⁷⁵ Finally he argues that Cumberland and Bacon support the same ‘fundamental Law of Nature established by us’, and refers the reader to significant passages in their works.⁷⁶ Against Hobbes, Pufendorf is eager to maintain that concern for self-preservation is not incompatible with Grotius’ sociability thesis. For him, ‘Self-love and Sociableness ought by no means to be made opposites’. Otherwise there was danger that ‘anyone should hereafter be cheated by the same doubtful Philosophy and led into Error’.⁷⁷ This point is supported from Epictetus.⁷⁸ But Cicero is used more extensively to tackle Hobbes since ‘Tully hath left the most noble Testimony for our Purpose’.⁷⁹ For instance, he selects a long quotation from one of the lost books of the De Republica which stresses the prudential selfregulating role that natural law performs within the individual human being.⁸⁰ Human beings are able as individuals, irrespective of external sanctions, to feel a sense of sociability for their neighbours and at the same time make the prudential Hobbesian calculation of the need for social coexistence as a necessary precondition of the attainment of any minimal set of personal objectives in life. The two processes mutually reinforce one another and yield the same result. Such a law ‘calls us to Duty by Commands, and deters us from Sin by Threats’, and because the impress of this law is felt by every individual irrespective of education and background, the need for the creation of Leviathan is removed since neither ‘the Senate nor the People’ can ‘free us from its Authority’. Furthermore, by locating the source of this law’s obligation firmly within the individual’s perceptions of social realities the objection of cultural relativism levelled at Grotius’ theory had been removed: for ‘nor will it be different at Rome and at Athens, now and ⁷⁴ Ibid., p. . De Beneficiis, IV. xviii. ⁷⁵ De Finibus, III. xx; De Officiis, I. xliv and III. v. ⁷⁶ R. Cumberland, De Legibus Naturae, ch. , §; F. Bacon, De Augmentis Scientiae, book VII, ch. . This latter reference is undoubtedly an error since the De Augmentis is divided into only two books. Pufendorf must be referring to book II, ch. . ⁷⁷ Pufendorf, The Law of Nature and of Nations, ed. Barbeyrac, book II, ch. , §xvi, p. . ⁷⁸ Arrian/Epictetus, book I, ch. xix: ‘God has dispos’d the Nature and Constitution of rational Creatures after such a Manner, that they can’t advance their private, without contributing something to the publick interest. Community doth not exclude the Pursuit of private Advantage’. (Ibid., note a) ⁷⁹ Ibid., book II, ch. , §xx, p. . ⁸⁰ Lactantius, VI. viii.



Natural Law Theories

hereafter; but will eternally and unchangeably affect all Persons in all Places’.⁸¹ The riposte to Hobbes is most succinctly proffered, and the emendation to Grotius most palpably effected in section x of chapter two entitled ‘Whether Profit be the Foundation of Law’. Here again Cicero is the main source. In order to refute the assertion that ‘All law first arose from the Convenience and Profit of particular States’, Pufendorf employs Cicero’s contention that custom has unnaturally separated the meanings of virtue and expediency ‘so as to make something honest which is not profitable, and something profitable without being honest’.⁸² Pufendorf then argues that this fallibility in ethical judgements does not apply to the individual’s perception of the Law of Nature where ‘the true Profit, is advanc’d so by sound Reason, which doth not consider Things at hand, but weighs and examines the Effects and Consequences which they are likely to produce’.⁸³ While Pufendorf would surely grant Hobbes’ point of definition that laws of nature are better regarded in the state of nature as ‘theorems’ because they lack the command of a superior, yet, for Pufendorf, individual human reason can attain, in respect of the laws of nature, a broader set of moral insights than Hobbes’ sceptical outlook permits. This is, as we have seen, because Pufendorf’s different moral epistemology argues that the individual can acquire knowledge of a set of coherent principles of social action. In most cases where humans form judgements on external phenomena Hobbes’ scepticism and moral pessimism would be correct; but the formulation of natural law is, in Pufendorf’s view, self-reflexive, and therefore exempt from these sceptical objections. Indeed, the very fact that the same conclusions emerge from the individual’s instincts and his calculations about the social world around him, allows him in this instance to transcend the traduced epistemological inheritance of definitions of what it is to be virtuous. He is indeed safeguarded from the pitfalls of Cicero’s Honestum distinction: Actions performed in Conformity to the Law of Nature have a double Excellency, not being only Honest, that is conducive to the Preservation, and to the Increase of the honour, and the good Credit of Men; but likewise Useful and Profitable, promoting their Interest and Advantage, and contributing largely to their Happiness.⁸⁴

⁸¹ Pufendorf, The Law of Nature and of Nations, ed. Barbeyrac, book II, ch. , §xx, p. . ⁸² Ibid., book II, ch. , §x, p. . translating De Officiis, II. iii. ⁸³ Ibid., p. . ⁸⁴ Ibid.

Socialitas and Pufendorf



Indeed, it is this very capacity to act in accordance with a prior calculation of what would be the most advantageous social consequences of individual action that is constitutive of what it is to be a human being. For, as Cicero argues (‘who talks admirably for our present business’), man’s defining characteristic is the ‘Benefit of Reason’, which allows him to see the Consequences of Things, their Rise and their Progress, and couples together Causes and Effects; compares resemblances of Actions and Events; tacks the Present to the Future; and so, taking in his whole Life at a View, he prepares all Things necessary for the Use and Comfort of it.⁸⁵

Thus with the help of a characteristic Stoic concept of the scope of human reason in moral matters, Pufendorf defends his theory of how natural law operates within men against Hobbesian objections. It is important to stress how for Pufendorf an eclectic method is the product of praxis, a result of discovering a way through his doctrinal difficulties, rather than a product of self-conscious abstract reflection on philosophical method. In Pufendorf’s case it is what he uses the eclectic method for in his philosophy that is of interest; whereas for those coming after him it is their second order commentary on what it was to be an eclectic that is revealing, and not so much the philosophical results that the method itself yields. In the generation after Pufendorf, eclecticism possesses an importance in the battle for control of the syllabi of the German universities in excess of its philosophical profundity. Its novelty consisted not so much in its practice, but in how it was polemically presented in contra-distinction to the orthodox principles of Lutheran scholasticism. It will be evident that its claims for radical philosophical efficacy rested largely on the achievements of Pufendorf himself.        ‘                ’ In the preface to the second edition of the De Jure Naturae in , and in a letter written in the same year to Christian Thomasius, Pufendorf maintains that had polemical controversy not erupted after the publication of the first edition he would have pursued a supplementary project offering a history of ancient political thought from an eclectic standpoint: this would have involved extended discussion of the contemporary relevance of Stoic moral theory: ⁸⁵ Ibid., translating De Officiis, I. iv.



Natural Law Theories

So also for many years I contemplated a Commentary on Greek Politics, but up to the present other more necessary undertakings have prevented it. I had planned to present therein the political theories of Greek writers, especially of Plato & Aristotle, which later passed over into Roman authors and also into the schools and writers of our own generation, and in which are found not a little that is absurd and erroneous . . . Such a work might very well have been cast in the teeth of those, who, in their defence of the authority of the tottering Aristotle, are said still to enter conspiracies on the order of Catiline’s . . . It would have also been a valuable undertaking to inquire whether anything more finished and sublime than our own moral teachings is to be found in the writing of the Stoics, of Seneca, Epictetus, and Marcus Aurelius. And especially whether at all, and if so, how far, the Christian Moral Theology rises above the common rules of duty as laid down in Natural Law.⁸⁶

This work was never written but it is legitimate to infer that the outlines of this eclectic project are contained in Pufendorf’s history of morality, the ‘De Origine et Progressu Disciplinae Juris Naturalis’, which forms the first chapter of the Specimen Controversiarum, and is the foundation for all the subsequent ‘histories of morality’. Such a crucial work requires detailed summary. Section one of the ‘De Origine’ claims that progress in the study of natural law in the seventeenth century has been outstanding. Although natural law itself is ‘as old as the human race’, nevertheless no one before Grotius had been able to show how the content of natural and positive law could be separated.⁸⁷ Neither commentaries on positive law nor the work of previous philosophers had arrived at ‘a complete and rounded system’.⁸⁸ Selden had, of course, attempted the task of separating out positive from natural law within the Jewish legal code. But Pufendorf believes that Selden’s efforts failed for three reasons: first, Selden devotes too little attention to the question of the origins of natural law; this was a vital issue, for if left unexamined, it would not be possible to distinguish the basic concepts of the discipline from those borrowed from other disciplines. Among the doctrines that were left insufficiently scrutinised were the doctrines of the nature of moral entities in general, of the principles of human actions, and their character and affections, and of the principle of ethics . . . and of the nature and requirements of contracts . . . and of the origin and nature of the first societies.⁸⁹ ⁸⁶ Pufendorf, The Law of Nature and of Nations, preface to the second edn of , p. iv. An almost identical version of this paragraph occurs in the letter to Thomasius of the same year (Pufendorf, ‘Briefe von Pufendorf’, p. , and as cited in n. ). ⁸⁷ Pufendorf, Eris Scandica, p. . ⁸⁸ Ibid. ⁸⁹ Ibid.

Socialitas and Pufendorf



Secondly, Selden is at fault in deriving the law of nature from the seven commandments of Noah rather than from a premise all nations could recognise. In other words, his error was the reverse of Grotius’. He compounded it by failing to show how these precepts were congruent with essential human nature, and sufficient to guide the plethora of human moral decisions. Thirdly, Selden was too respectful towards, and concerned to expound the views of Jewish doctors of the law, and too little concerned to assess whether these views were acceptable to general sana ratio. In section two of his history Pufendorf defends the pre-eminence of Grotius against the claims of Christian theology to have already fully treated the subject of natural law. In the New Testament many constituent parts of natural law are, in Pufendorf’s opinion, illuminatingly illustrated; but neither Christian texts nor commentaries on them are useful sources for the jurist because they do not formulate a theory of natural law that is common to all human beings irrespective of religion; further, much of the discussion of morality in religious writings is concerned with entitlement to eternal life, which is strictly and simply irrelevant in natural law, since the latter is by definition restricted to this life. Hence he is forced to conclude reluctantly: It also happens that what we have said above to be relevant to the pursuit of natural law, is neither found in the authentic books of the New Testament nor in commentaries on it: to be sure, when such matters were discussed it was outside the remit of Holy Writ.⁹⁰

Section three of the ‘De Origine’ examines the contribution of the corpus of Roman law to the area of natural law. Once again Pufendorf feels that it offers no useful material: Roman law and the massive tradition of commentary on it is unsatisfactory because it has only come down to us piecemeal, lacking sufficient coherence to enable a system of jurisprudence to be reconstructed from it. Also, as in the example of Selden’s treatment of Jewish law, no attempt had been made by Roman jurists to separate out elements of natural law from those positive laws that were shaped by and drew their inspiration from the nature of the Roman state. Thus, ‘however much praise we may bestow on Roman law, it must certainly be admitted that there is a need of a special discipline of natural law, if indeed its completion may be made to conform to moral doctrine’.⁹¹ ⁹⁰ Ibid., p. .

⁹¹ Ibid., p. .

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Natural Law Theories

As one might expect, Pufendorf’s respect for the one remaining historical source for natural jurisprudence – ancient philosophy – is greater: ‘the memorable writings of ancient philosophers contain not a few maxims that provide clarifications of natural law’.⁹² This contribution had received insufficient notice. As a consequence Aristotle’s significance has been overrated and the Stoics altogether forgotten: For although among the different sects of ancient philosophers the opinions of the Stoics seem to be able to be arranged (with some emendations) very easily into a solid system of natural law, these were neglected and only the doctrines of Aristotle seized power in the schools of philosophy.⁹³

The Stoic theory was of greater contemporary relevance since Stoic morality was not tied to a specific religious, political or national context, as Aristotle’s self-consciously was. Aristotle’s work aimed to provide an analysis of political phenomena existing in fourth-century Greece. Thus, the generations of commentators on Aristotle who had argued that his natural law was conceived in objective abstraction were quite incorrect: Not to speak about the other parts of his philosophy, Aristotle’s Ethics, if you leave aside the passages that deal with the principles of human actions, seem to contain scarcely anything but the duties of a citizen in any Greek republic. Just as also in his Politics, he appears to have had the institutions of his own Greek states very much before his eyes, and to have valued their freedom above everything. This was a serious flaw in the training that was about to be offered to serve the uses of the whole human race.⁹⁴

In section five Pufendorf undertakes a eulogy of Grotius’ achievements. Especially interesting is the comment that the intellectual inspiration behind the writing of the De Jure Belli came not from Grotius’ immediate patron Peiresc, but from the writings of Francis Bacon: In order that he might pick up an idea on the ordering of such a work, I would believe that he had been advised by De Augmentis Scientarum written by the very wise Bacon, once Chancellor of England.⁹⁵

There is no evidence in either the book itself or in Grotius’ letters to back up this assertion, and so it may be the case that Pufendorf is retrospectively attributing to Grotius his own gratitude for Bacon’s general exhortation to bolder investigation in all branches of philosophy: For this man above all seems to have sounded the trumpet and carried the banner, so that on philosophical matters some further and more detailed work ⁹² Ibid.

⁹³ Ibid.

⁹⁴ Ibid.

⁹⁵ Ibid., p. .

Socialitas and Pufendorf



could be teased out than up to this point had echoed from the walls of the schools.⁹⁶

Certainly Bacon’s Essays played an important part in revisions to the second edition of the De Jure Naturae, and the later ‘historians of morality’ were to call Bacon the first eclectic philosopher because of his rejection of respect for traditional authorities in philosophy. This is precisely the sense in which Pufendorf seems to have esteemed him. The remainder of this section on Grotius is devoted to both a defence of the orthodoxy of his religious views, and a condemnation of the numerous inept commentaries on the De Jure Belli that had appeared since . Pufendorf pays tribute both to Grotius’ erudition and to the modesty of his writing, a modesty reflected in the title of the work which in fact transcended by far the treatment of the laws of war. There is also another interesting complimentary reference to Bo¨ cler as easily the best of the Grotian commentators: ‘Among these it was above all Bo¨ cler who contributed judgement and teaching that was the equal of the work of Grotius’.⁹⁷ Next in the canon of natural law writers is Hobbes, who is described with respect: among many bad arguments are also to be found very many excellent ones of outstanding value: also those very false arguments which he expounds offered an opportunity of perfecting moral and political science, just as several points that assisted in its completion would scarcely have occurred to anyone without Hobbes’s contribution.⁹⁸

In essence Hobbes is regarded as having revived Epicureanism in ethics just as his friend and contemporary Gassendi had done in physics: The old theory of the Epicureans appealed to him very much either through a similarity of taste or because he identified it in the practice of states (which ⁹⁶ Ibid. There is no passage in the De Augmentis which might have offered this stimulus besides Bacon’s recommendation that a history of learning be composed: ‘not but I know that in the particular sciences of the juriconsults, mathematicians, rhetoricians, philosophers, we have some slight mention or barren narrations about the sects, schools, books, authors, and successions belonging to them . . . but I say that a complete and universal History of Learning is yet wanting’ (De Augmentis Scientiae, book II, ch. , in Works, ed. J. Spedding, R. L. Ellis and D. D. Heath, vol. II (London, ), p. ). However, P. H. Kocher, has noted that in works of jurisprudence such the Maxims of the Laws or in the legal aphorisms of the De Augmentis there is a ‘notable absence of specifically religious ideas’. This leads him to conclude that ‘he [Bacon] felt more at home . . . in seeking justice through certitude by polishing the internal coherence of the law. In this preference we may well see the seeds of that increasing separation of the concept of the Law of Nature from Christian religion, which was to proceed through philosophers like Grotius, Pufendorf, and Locke to a culmination in the Enlightenment’ (P. H. Kocher, ‘Francis Bacon on the science of jurisprudence’, Journal of the History of Ideas,  (), p. ). ⁹⁷ Ibid. ⁹⁸ Ibid., p. .



Natural Law Theories

justify all matters in relation to the state’s own preservation and advantage), or even, I conjectured sometimes, through the example and in emulation of his great friend Pierre Gassendi: when the latter had undertaken to rehabilitate the views of the Epicureans, and in his Physica in particular, Hobbes decided to publish in the world of learning his [Gassendi’s] opinions on ethics cloaked in a new structure.⁹⁹

By describing Hobbes as an ‘Epicurean’ Pufendorf was using that term as a precise label rather than, as so often among opponents of Hobbes, as a mere term of abuse. For this description is immediately paralleled by a statement of Pufendorf’s own ‘Stoicism’, with which he associates Richard Cumberland, whose De Legibus Naturae, published in the same year as the De Jure Naturae, had put up a similarly ‘Stoic’ opposition to Hobbes: So far as I can tell Richard Cumberland destroyed his [i.e. Hobbes’] theory very effectively in England with his learned and able book De Legibus Naturae. At the same time he established the contrary thesis which approximated closely to the views of the Stoics, and which of the two was my view too.¹⁰⁰

For Pufendorf, the shorthand labels of ‘Stoic’ and ‘Epicurean’ represent not crude reductive slogans but a mirror of the way he had encountered and transcended Hobbesian natural law within his own mind. The essay ‘De Origine’ concludes with a section deploring the acrimony and irrelevance of the theological polemics that had been directed at Grotius, Hobbes and now Pufendorf himself. He reveals that one purpose of the De Jure Naturae had been to provide a definition of natural law that would place the subject outside the reach of these distracting disputes so that the spheres of interest represented by theology and natural law would be recognised as distinct: In it [i.e. the preface to De Jure Naturae et Gentium] my particular purpose was, so far as my abilities allowed, to embrace all those topics that related to the discipline of natural law and arrange them in an order that was neither loose nor rough. Next my intention was to abolish in natural law all theological controversies, and adapt it to the understanding of the whole of mankind, who disagreed in many different ways over religion: I note that this was also done by Richard Cumberland, who was however a theologian by profession.¹⁰¹

Once the principle was recognised that natural law applied uniquely to the human forum (but within that area was the creation of man himself ) there would be no more room for fractious disputation: ‘Of course this discipline can never shine with native brilliance and blossom ⁹⁹ Ibid.

¹⁰⁰ Ibid.

¹⁰¹ Ibid., p. .

Socialitas and Pufendorf



in tranquil and happy peace unless it has been raised above those storms’.¹⁰² However, this expectation was oversanguine, even disingenuous; for whatever the defects of his own theory of the origin of natural law in divine imposition, Alberti was entirely correct in identifying the fact that Pufendorf’s locating of natural law in the social instincts and calculations of the individual left little role for religion at all in human life: ‘in all eight books there is nothing to be read about any obligation that derives from that religion, and indeed rather too little about religion itself ’.¹⁰³ God’s role was reduced to that of a merely punitive sovereign who could apply sanctions in an afterlife, which hardly seemed a full description of the attributes of a divine mind. And once theology was exiled to the exiguous forum of agreed divine positive law, it soon followed that the practice of religion in any state became a matter of social utility rather than sincere worship of God. Therefore, Pufendorf’s general moral epistemology was still closely allied to Hobbesian voluntarism irrespective of his synthesis of the Grotian and Hobbesian concepts of sociability. Alberti was rightly emphatic that once natural law was made a uniquely human creation then Hobbesian voluntarism naturally and inevitably followed: In the same way as in this book, some authors diverge from those Christian writers who locate the centre of natural law in socialitas. Reflecting carefully on this and on its advantage, they think that it suffices enough for religion, insofar as it is prescribed and required under natural law, as long as it is simple and directed towards the security of the state. From this hypothesis, one writer [Pufendorf ] set the goal for this religion in this life, restricting its use to its advantage for the state; another, [Hobbes] so that the same goal might be attained more easily, assigned absolute power for regulating beliefs to the sovereign; both however entirely neglect guidance towards a more complete idea of God.¹⁰⁴

This argument was to be followed up with greater rigour by Pufendorf’s younger rival, G. W. Leibniz. ¹⁰² Ibid. ¹⁰³ V. Alberti, Compendium Iuris Naturae, Orthodoxae Theologiae Conformatum (Leipzig, ), p. . ¹⁰⁴ Ibid., p. .

 

Voluntarism and moral epistemology: a comparison of Leibniz and Pufendorf

    ’               ’          In many ways the relationship of Leibniz and Pufendorf mirrored that of Locke and Hobbes: they (apparently) never met, they did not exchange a correspondence of real intellectual substance, and an uneasy, sniping, hostility seems to have characterised the opinion of the younger man towards his senior.¹ Certainly, the careers of Leibniz and Pufendorf offer interesting parallels. Both were encouraged in the s by their common patron, Baron Boineburg, to produce a systematic account of ‘universal jurisprudence’; both wrote works seeking remedies for the political decay of the Holy Roman empire; both retained a life-long interest in the study of natural law as the best means of achieving a resolution within their own philosophies of the respective claims of God and man. Above all, many of their doctrines were derived from a close study of the work of earlier ¹ For the letters that do survive see Pufendorf, Briefwechsel, nos. , ,  and –, all dating from the s, and the editor’s assessment of their relationship at pp. –, where he concludes that although Leibniz studied the De Jure Naturae carefully as early as  he always considered Pufendorf a superficial thinker in all the areas of intellectual life to which he sought to make a contribution. The best treatment of Leibniz’ general engagement with ‘modern’ natural law is R. Se`ve, Leibniz et l’Ecole moderne du droit naturel (Paris, ), which summarises Leibniz’ case against Pufendorf at pp. ff. This should be supplemented by Klaus Luig, ‘Die Wurzelen des aufgekla¨rten Naturrechts bei Leibniz’, in O. Dann and D. Klippel (eds.), Naturrecht-Spa¨taufkla¨rung-Revolution, Studien zum achtzehnten Jahrhundert, vol. XVI (Hamburg, ), pp. –. On the relationship between Leibniz and Pufendorf see N. Bobbio, ‘Leibniz e Pufendorf’, Rivista di filosofia,  (), pp. – and for a more recent survey making use of unpublished archival material: D. Do¨ring, ‘Excurs. Zur Rezeption von Pufendorfs ‘‘Jus feciale’’ (insbesondere durch Gottfried Wilhelm Leibniz)’, in his Pufendorf-Studien, pp. –. The latest and most elaborate attempt to rehabilitate Leibniz’ system is R. W. Adams, Leibniz: Determinist, Theist, Idealist (Oxford, ). For an account of the relationship between Leibniz and Boineburg, see G. MacDonald Ross, Leibniz (Oxford, ), pp. –. The evidence for Leibniz’ Platonism is conveniently assembled in the introduction of G. W. Leibniz, The Political Writings of Leibniz, ed. P. Riley (Cambridge, , nd edn), pp. –, and reworked as the central strand of the same author’s magisterial and comprehensive survey, Leibniz’ Universal Jurisprudence: Justice as Charity of the Wise (Harvard, ). Unless otherwise specified, all translations from original texts of Leibniz are my own.



Leibniz and Pufendorf



philosophers, and the divergence in their approaches can be traced back to the different lessons they extracted from that exercise. Whereas Pufendorf found Stoic moral theory very helpful in providing an answer to Hobbes, Leibniz in essence believed that Platonism could perform the same function in respect of the same antagonist. Leibniz’ philosophical temperament stabilised early on. Throughout his life he was to be preoccupied with the task of reconciliation: he advocated the re-unification of Christendom under a reformed and universal papacy; he tried to redefine the powers of the Holy Roman emperor and the German princes in order to revitalise the political efficacy of the empire; he attempted to compose a universal history and a general encyclopædia that would summarise all relevant knowledge. His substantive philosophy of ‘monadology’ represented an attempt to identify a single explanatory principle which would reconcile and encompass the achievements of ancient and modern philosophy. This desire to identify sound thinking in past and present and attempt to synthesise its apparently incommensurable truths is apparent even in a letter written in  to his teacher Jakob Thomasius: For you are right in holding that although new opinions may be offered and their truth most convincingly shown, we ought almost never to depart from the generally accepted terms. If the Scholastics had done this, we would not be in difficulty now.²

The first of these attempts to find a single and simple way of encompassing and redescribing all previous thinking on a subject had been the Nova methodus discendae docendaeque jurisprudentiae (New method of teaching jurisprudence) (),³ in which he attempted to deduce all positive laws from a few basic and indubitable principles of natural justice. Although he continued for thirty years to make revisions to this small pamphlet, Leibniz did not follow it up with a major systematic treatment of natural law theory. However, he touched again on natural law in numerous writings later in his career, and from these it is possible to observe a coherent theory which draws on Plato to correct and redescribe Hobbes. Near the end of his life Leibniz reflected that in morality and metaphysics he had taken Plato as his guide and had indeed done something to systematise the latter’s insights in this area: ² G. W. Leibniz, Philosophical Papers and Letters, ed. L. E. Loemker, vol. I (Dordrecht, ), pp. – (Leibniz to Thomasius,  April ). ³ G. W. Leibniz, Nova methodus discendae docendaeque jurisprudentiae (Frankfurt/Main, ).

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Natural Law Theories

I have always been very happy, even since my youth, with the morality of Plato, and moreover in some sense with his metaphysics: besides these two sciences go hand in hand with one another, in the same way as mathematics and physics. If someone reduced Plato to a system, that would be a great benefit to mankind, and it may be seen that I have made a few steps in that direction.⁴

Metaphysics is linked to morality here because it was by means of Platonic definitions of substance that Leibniz believed he could overcome the problem of divine voluntarism. Leibniz’ opposition to descriptions of God as mere omnipotence went back as far as his early Discourse on Metaphysics (), where he argues that if God’s justice is arbitrary, and merely the product of supreme will, then God is no better than a tyrant and undeserving of power: For why praise him for what he has done if he would be equally praiseworthy in doing exactly the opposite? Where will his justice and his wisdom be found if nothing is left but a certain despotic power, if will takes the place of reason, and if, according to the definition of tyrants, that which is pleasing to the most powerful is by that very fact just?⁵

But if on the other hand God is admitted to be a perfect Being then his attributes must include limitless goodness and wisdom as much as unlimited power: The conception of God that is most common and the most full of meaning is expressed well enough in the words: God is an absolutely perfect being. The implications, however, of these words fail to receive sufficient consideration. For instance, there are many different kinds of perfection, all of which God possesses, and each one of them pertains to him in the highest degree . . . Consequently, power and knowledge do admit of perfection, and insofar as they pertain to God they have no limits. Whence it follows that God who possesses supreme and infinite wisdom acts in the most perfect manner not only metaphysically, but also from the moral standpoint.⁶

This basic conception of God’s nature is developed in Leibnizian metaphysics with the aid of three characteristic Platonic notions: the idea that all eternal verities are embedded in the mind of God; the idea that the soul’s immortality can be demonstrated through natural reason; and finally the idea that the human mind is a poor reflection of the divine mind, and that therefore human beings and God are ‘spirits’ ⁴ Leibniz, Die Philosophischen Schriften, III, p. . (Leibniz to Re´ mond  February ). The best examination of the links between natural law, Christianity, and Platonism in Leibniz’ thought is H.-P. Schneider, Justitia Universalis, Quellenstudien zur Geschichte des ‘Christlichen Naturrechts’ bei Gottfried Wilhelm Leibniz (Frankfurt/Main, ). ⁵ Leibniz, Philosophical Papers and Letters, I, p.  (‘Discourse on Metaphysics’). ⁶ Leibniz, Die Philosophischen Schriften, IV, p.  (‘Discourse on Metaphysics’).

Leibniz and Pufendorf

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inhabiting a ‘common community of justice’ regulated by the ‘charity of the wise’. Leibniz asserted that there are eternal verities, of which justice is one, which are not adjuncts of divine power, but ideas embedded (inditus) in God’s mind, analogous to the truths of mathematics and logic. He explicitly rejects the Cartesian view that such eternal truths are creations of the divine will: We must not imagine, as some do, that eternal truths, being dependent on God, are arbitrary and depend on his will, as Descartes, and afterwards M. Poiret, appear to have held. That is true only of contingent truths, of which the principle is fitness or the choice of the best, whereas necessary truths depend solely on his understanding and are its inner object.⁷

To follow Descartes is effectively to succumb to scepticism since divine voluntarism implies that there are as many definitions of true justice as there are acts of divine volition: ‘He opens the door to the most exaggerated Pyrrhonism: for it leads to the assertion that this proposition, three and three makes six, is only true where or during the time when it pleases God’.⁸ Instead Leibniz falls back on arguments from Plato’s Euthyphro, in which the subject for debate is whether the rules of goodness and justice are anterior to the rules of God. This text is used to show that an eternal verity cannot be at once true and the product of (even a divine) will and that eternal truths must exist in the mind of God because all reality is predicated on something existent.⁹ It was also important for Leibniz to be able to demonstrate the natural immortality of the soul, for from this premise it was impossible to argue that justice was simply a legal concept confined to the human forum alone. Once it was established through reason as much as faith that the soul would survive into an afterlife where even those whose crimes escaped detection in this life would receive precise judgement, then it was no longer possible to maintain strict boundaries between natural law and moral theology, and a necessary precondition for a ‘common community of justice’ between God and men would have been met. To achieve this end Leibniz employed the argument in Platonism that holds that the soul is essentially and naturally immortal by virtue of being incorporeal. In a lecture entitled ‘The Greeks as ⁷ G. W. Leibniz, Philosophical Writings, ed. G. H. R. Parkinson (London, ), p. . (Monadology, proposition ) ⁸ G. W. Leibniz, Theodicy, ed. A. Farrer (New Haven, ), p. . ⁹ Euthyphro, and particularly sections E–E, are used by Leibniz in both the Theodicy and the Meditation on the Common Concept of Justice.



Natural Law Theories

Founders of Rational Theology’ (), he praises Greek philosophers, and Plato in particular, for having first sketched out an adequate theory of substance which took into account the existence of incorporeal substances that might share the same natural immortality as corporeal substances: ‘They first brought forth a certain metaphysics . . . and they recognised in an accomplished way that incorporeal substances are in God and in other minds’.¹⁰ Plato above all ‘recognised that the principle of motion could not be corporeal, and that the soul is self-moved, the principle of motion, moving itself to move’.¹¹ He was therefore especially critical of philosophers such as Pufendorf who argued that immortality could only be shown by divine revelation, and that therefore there was no connection between moral theology (the study of how one should prepare for the Last Judgement while on earth) and the natural law by which men conducted their earthly lives: I find it very bad that celebrated people, such as Pufendorf and Thomasius, teach that one knows the immortality of the soul, as well as the pains and rewards which await us beyond this life, only through revelation. The Pythagoreans and Platonists knew better . . . All doctrines of morals, of justice, of duties which are based only on the goods of this life, can be only very imperfect. Take away the [natural] immortality of the soul, [and] the doctrine of providence is useless, and has no more power to oblige men than the gods of Epicurus, which are without providence. Therefore if God does not furnish us with principles from which we may gain knowledge of immortality, natural theology is useless, and nothing avails against the practice of atheism; also it was lawful for men to be atheists in advance of Revelation, and divinity gives itself no protection in this life.¹²

For Leibniz it was axiomatic that justice and injustice ‘do not depend solely on human nature’, but on ‘the nature of intelligent substance in general’.¹³ The justice of God and men differs only in degree, not kind, since ‘the formal notion’ of justice ‘does not depend on the arbitrary rules of superiors, but on the eternal rules of wisdom and goodness, in men as well as in God’.¹⁴ Men and God were composed alike of intelligent substance so that together they comprised ‘a society or universal republic of spirits’ which represented a moral realm within physical nature where ‘universal right is the same for God and men’.¹⁵ ¹⁰ G. W. Leibniz, ‘An unpublished lecture by Leibniz on the Greeks as the founders of Rational Theology: its relation to his ‘‘Universal Jurisprudence’’ ()’, in Leibniz, Political Writings, p. . ¹¹ Ibid. ¹² Leibniz, Die Philosophischen Schriften, VII, p.  (Leibniz to Bierling, undated, trans. in ibid.). ¹³ Leibniz, Die Philosophischen Schriften, III, p. . ¹⁴ Leibniz, Theodicy, p. . ¹⁵ Ibid., p. .

Leibniz and Pufendorf



This is so, because Leibniz accepts the Platonic theory that the mind of man is an image of the divine mind. Even in his most mature and original treatment of the concept of substance, the Monadology, his exposition of his moral epistemology is heavily reliant on Plato. It deserves extensive quotation as the most complete statement on this subject that Leibniz offers: . Among other differences which exist between ordinary souls and minds . . . there is also this, that souls in general are the living mirrors or images of the universe of created things, whereas minds are also images of the Divinity himself, or the Author of nature, capable of knowing the system of the universe, and of imitating something of it by architectonic patterns, each mind being as it were a little divinity in its own department. . This it is which renders minds capable of entering into a kind of society with God and makes his relation to them not only that of an inventor to his machine (which is God’s relation to the rest of created things), but also that of a prince to his subjects, and even of a father to his children. . From this it is easy to conclude that the assemblage of all minds must make up the City of God, that is to say the most perfect possible state under the most perfect of monarchs. . This City of God, this truly universal monarchy, is a moral world in the natural world, and is the most exalted and the most divine of God’s works, and in it truly consists his glory, since he would not be glorified if his greatness and goodness were not known and wondered at by minds: it is also in relation to this divine City that he may properly be said to have goodness, whereas his wisdom and power are manifested everywhere.¹⁶

Once it is admitted that God and man are of common intelligent substance then it is possible to understand what Leibniz meant when he said he was as much indebted to Platonic metaphysics as to Platonic moral theory; for, as he wrote himself, ‘true ethics is to metaphysics what practice is to theory, because upon the doctrine of substances in common depends the knowledge of spirits and particularly of God and the soul which gives a proper meaning to justice and virtue’.¹⁷ Furthermore we can now see how Leibniz could maintain so much more successfully than, for example, Alberti, that human sociability was derived from God’s institution, and not man’s nature. Instead of relying on scriptural authority to confirm the persistence of divine natural law ¹⁶ Leibniz, Philosophical Writings, pp. –. ¹⁷ G. W. Leibniz, New Essays on Human Understanding, book IV, ch. viii, § (trans. in Leibniz, Political Writings, p. ).



Natural Law Theories

after the expulsion from Eden, Leibniz merely had to show that caritas was of the essence of God for it to become the distinguishing characteristic of a theory of justice common to both God and men. Human benevolence could be conceived as active in the manner of God’s benevolence towards man; and wisdom (also a quality shared with God) could be relied upon to set rational bounds for that benevolence. Thus a truly ‘universal jurisprudence’ could be created that relied on a demonstration of God’s goodness and wisdom as opposed to his power: ‘Not the will but the wisdom of God is the final standard of justice’.¹⁸ Thus, ‘Charity must prevail over all other considerations in the world’.¹⁹ Leibniz relied on Plato not only in his positive theory but also in his characterisation of his opponents. In a close paraphrase of a section of the Euthyphro he stated the issue between himself and the voluntarists thus: It is agreed that whatever God wills is good and just. But there remains the question whether it is good and just because God wills it or whether God wills it because it is good and just: in other words, whether justice and goodness are arbitrary or whether they belong to the necessary and eternal truths about the nature of things, as do numbers and propositions. The former opinion has been followed by some philosophers [i.e. Hobbes and Pufendorf ] . . . but present-day Reformed [theologians] usually reject this doctrine.²⁰

Later in the same work Leibniz compares Hobbes explicitly with Thrasymachus in Plato’s Republic, and answers him in a manner very similar to Socrates by accusing him of mistaking capacity to act with justification in action: A celebrated English philosopher named Hobbes, who is noted for his paradoxes, has wished to uphold almost the same thing as Thrasymachus: for he wants God to have the right to do everything, because he is all-powerful. This is a failure to distinguish between right and fact. For what one can do is one thing, what one should do, another . . . If power were the formal reason of justice, all powerful persons would be just, each in proportion to his power.²¹

Therefore even if God’s power is irresistible in fact, it does not mean that God’s justice draws its justification from this source. If God is truly ‘a definite substance, a person, a mind’,²² then his benevolent attributes are important components of his understanding and will, which the ¹⁸ G. W. Leibniz, Textes ine´dits d’apre`s les manuscrits de la Bibliothe`que provinciale de Hanovre, ed. G. Grua,  vols. (Paris, ), I, p. . ¹⁹ G. W. Leibniz, Die Werke von Leibniz, ed. O. Klopp, vol. VII (Hanover, ), p.  (Leibniz to Mme de Brinon, trans. in Leibniz, Political Writings, p. ). ²⁰ Leibniz, Political Writings, pp. –. (‘Meditation on the common concept of Justice’). ²¹ Ibid., pp.  and . ²² Leibniz, Philosophical Papers and Letters, I, p.  (‘Paris Notes’).

Leibniz and Pufendorf



addition of power only confirms and does not arbitrarily displace: ‘Wisdom is in the understanding, and goodness in the will. And justice as a result is in both. Power is another matter, but if it is added it transforms right into fact’.²³ In  Leibniz was asked to give his opinion on Pufendorf’s epitome of his natural law theory, De Officio Hominis et Civis. The result was a essay entitled ‘Opinions on the Principles of Pufendorf’. In this long letter Pufendorf is reproved for being a muddled Thrasymachus: in other words, for starting from the same voluntarist principles as Hobbes, and then failing to follow them through ‘since the greater part of the thoughts expounded . . . are not consistent with the principles . . . [for] to those who undertake to maintain paradoxes it happens easily that, when good sense prevails in them, they forget their own doctrines’.²⁴ Essentially, Leibniz accuses Pufendorf of being a confused thinker and a covert Hobbesian. Both of these charges merit consideration, since they pertinently sum up the main points of the long controversy that Pufendorf’s work generated in Germany. Pufendorf had managed to exclude Hobbes from his substantive law of nature by reformulating the Grotian principle of sociability as a watered down form of sociality; but it appeared to Leibniz that Hobbes had been re-admitted as the presiding genius of both civil society and Heaven itself. By defining law as ‘a command by which the superior obliges the subject to conform his actions to what the law itself prescribes’, Pufendorf had ensured that the source of obligation for the institutions of civil society consists entirely in the power of a superior to compel observance of them.²⁵ Once the basic structures initiated by human sociability had been superseded, duties would only exist if there were a superior to extract obligation. In civil society there would therefore be no protection against arbitrary and tyrannical behaviour. Nor is this situation remedied by introducing God as the superior of all, who by his ability to offer rewards and punishment for earthly actions would ensure that no arbitrary and unfair conduct by lesser superiors went without retribution. This tactic fails for a number of reasons: first, such an attenuated metaphysic could not generate any meaningful concept of justice, since justice could not be a part of God’s essence if it were only established by God’s own free will: ²³ Leibniz, Political Writings, p.  (‘Meditation on the common concept of Justice’). ²⁴ Ibid., pp.  and  (‘Opinion on the Principles of Pufendorf’). ²⁵ Ibid., p.  (citation is from De Jure Naturae, book I, ch. , §).



Natural Law Theories

one must pay attention to this fact: that God is praised because he is just. There must be, then, a certain justice – or rather a supreme justice – in God . . . Neither the norm of conduct itself, nor the essence of the just, depends on his free decision, but rather on eternal truths, objects of the divine intellect, which constitute . . . the essence of divinity itself; . . . Justice, indeed, would not be an essential attribute of God, if he himself established justice and law by his free will. And, indeed, justice follows certain rules of equality and proportion [which are] no less founded in the immutable nature of things, and in the divine ideas, than are the principles of arithmetic and geometry.²⁶

Secondly, and more crucially, once the source of natural law had been shifted from divine institution to a calculative and instinctual sociability generated from within the individual, the obligation of such a law would obtain quite irrespective of God’s existence. Grotius and Hobbes had themselves perceived this. It was a natural law that no longer had a logical requirement for God at all, so that it was clearly illegitimate for God to be invoked to extricate modern writers from the problems posed by voluntarist justice: the doctrine itself, which makes all law derivative from the command of a superior, is not freed of scandal and errors, however one justifies it. Indeed, not to mention that which Grotius justly observed, namely that there would be a natural obligation even on the hypothesis – which is impossible – that God does not exist, or if one but left the divine existence out of consideration; since care for one’s own preservation and well-being certainly lays on men many requirements about taking care of others, as even Hobbes perceives in part.²⁷

Leibniz clearly believed that all the modern writers on natural law had effectively surrendered to voluntarism immediately they had begun to argue that natural law was an entirely human artefact. For without a concept of justice defined by God’s goodness they were left with no criterion by which to distinguish justice from unaccountability, since God himself in their theory was no better than a tyrant on an elevated plane. Hobbes at least follows out the consequences of this position, but Pufendorf’s argument is merely confused and circular, since he also demands that a superior must possess a just cause to exercise power over an inferior, when his premises allow of no just cause beyond force majeure: Well, then, if the source of law is the will of a superior and, inversely, a justifying cause of law is necessary in order to have a superior, a circle is created, than which none was ever more manifest. From what will the justice of the cause derive, if there is not yet a superior, from whom, supposedly, the law may emanate?²⁸ ²⁶ Ibid., p. .

²⁷ Ibid.

²⁸ Ibid., pp. –.

Leibniz and Pufendorf



There was much force in these arguments, particularly when Leibniz showed so clearly how nugatory God’s role had now become in the dominant strand of later seventeenth-century natural law theory. Indeed, his essay was regarded throughout much of the eighteenth century as the most distinguished critique of Pufendorf that appeared in the thirty years of polemical exchanges that followed the publication of the De Jure Naturae.²⁹ However, his accusation that Pufendorf’s theory was confused and inconsistent was incorrect: if Leibniz had studied Pufendorf’s replies to his critics with care he could have appreciated how Pufendorf could plausibly maintain a non-Hobbesian moral epistemology that nevertheless derived the duties of man solely from human nature and the circumstances of human life. This account is not immune to Leibniz’ larger criticisms on the question of the sources of obligation, but it was coherent. Moreover, it also successfully addressed the fundamental issue of how the obligations of natural law could be derived from a source outside divine will, while still complementing and not challenging the authority of God himself: moral theology and natural law need not necessarily conflict. However, this remained an uneasy resolution of the issue, for it was Leibniz who was more in tune with the predominant views in the political establishments of most German states. To keep moral theology separate from moral theory required both a restriction on the practical sphere of theologians that went far beyond other commentators, and the asking of awkward questions about the origins of sovereignty. Moreover Leibniz’ more relaxed views on the social place and impact of theologians made him a more optimistic advocate for confessional reunion than his opponents, at a time when this particular cause was popular at many princely courts. Hence neither Pufendorf’s De habitu religionis christianae ad vitam civilem () nor Thomasius’ Institutiones Jurisprudentiae Divinae (), the works in which their concepts of moral theology were most fully developed, were especially well received on this key issue. Indeed, at the end of Pufendorf’s life his pupil Thomasius became involved (with Pufendorf’s tacit support) in a damaging dispute with the Danish Lutheran court chaplain, H. G. Masius (–), on just ²⁹ Barbeyrac’s attempt to reply to Leibniz was not considered to have achieved its object: see M. Hu¨ bner, Essai sur l’Histoire du Droit Naturel,  vols. (London, –), vol. II, p. . The irresistible force of Leibniz’ arguments is accepted also by modern commentators, e.g. W. Ro¨ d, Geometrischer Geist und Naturrecht. Methodengeschichtliche Untersuchungen zur Staatsphilosophie im . und . Jahrhundert (Munich, ), p. .



Natural Law Theories

these points.³⁰ This controversy revolved around the question of the source of summa potestas: Masius argued that sovereigns derived their absolute authority directly from God and that the best defence of that absolutism lay specifically in the Lutheran church, seen to have a more reliable political track record than either of the Catholic or Reformed communions. Thomasius responded, (following Pufendorf’s lead) as a lawyer rather than as a theologian, that sovereignty came only indirectly from God and was vested in the people who surrendered it to the ruler under contract. Therefore there could be no room for an intermediate supportive authority such as the Lutheran Church, which in any case would be as likely as any other Church to cause breaches of the civil peace in support of its own ends. Only the state could supervise religious matters, and then grant toleration in some cases. Masius’ case might seem a bizarre piece of special pleading, conceding as it did that Lutheranism had an alarming potential to endorse the most extreme forms of unbridled absolutism; nevertheless Thomasius – and by extension Pufendorf – were forced on to the defensive and revealed positions on the origins of sovereignty and the desirable social and political influence of organised religion that were clearly out of step with contemporary opinion. No monarch in northern Germany, however secularminded, was likely to rejoice in the derivation of his sovereignty from popular contract as opposed to divine donation; and for this reason the debate also had severe practical consequences too for Thomasius, in that the electoral court in Dresden was persuaded (unsurprisingly) by a complaint from the king of Denmark to require him to leave Saxony in March , and settle in neighbouring Brandenburg. Thomasius sensibly did not follow up his derivation of sovereignty from the people in his new career at the Prussian university of Halle. While Thomasius is often considered to have pressed Pufendorf’s thought in more radical directions than the latter intended, it is revealing that in this instance – as in fact, in many others – the younger man was simply bringing into the open implications that were deeply embedded in Pufendorf’s own major works. As Michael Seidler has recently shown in his discussion of Pufendorf’s defence of the Glorious Revolution, there is an inherent right to rebel located in Pufendorf’s concept of sovereignty based upon a double contract, because the people have a ³⁰ See the fine analysis of the major contributions by F. Grunert, ‘Zur aufgekla¨ rten Kritik am theokratischen Absolutismus. Der Streit zwischen Hector Gottfried Masius und Christian Thomasius u¨ ber Ursprung und Begru¨ ndung der ‘‘summa potestas’’ ’, in Vollhardt, Christian Thomasius, pp. –.

Leibniz and Pufendorf



defined collective identity ahead of the formation of government. It is above all in cases of defence of religious belief that this right may be asserted, a point that was to be seized upon by Huguenot readers of Pufendorf, as much as by Thomasius.³¹      ’                Orthodox writing on natural law in Germany took lex divina or logos as its starting point in epistemology: as Alberti put it in his Compendium Juris Naturae (), ‘we Lutherans, however, are not used to devising anything whose contrary has been revealed by God himself (not even in philosophy, because it ought to be christian)’.³² Any such premise faced the obstacle of how to reconcile God as the source of moral obligation with the freedom of human will and reason. So when Melanchthon set up the original Protestant synthesis of Lutheranism and Aristotelian natural law in his Philosophiae Moralis Epitome (), he resolved this difficulty by employing the argument from convenientia or harmony. Thus he asserted that a harmony existed between man’s nature and the divine structure of the universe so that natural law could only be conceived of as the impression of divine reason in ourselves. This was still the essence of the position adopted by Alberti, and sustained with greater sophistication by Leibniz. From the assumption that reason was of divine imposition it followed that men have innate ideas of good and evil. For if reason possessed the capacity to make such distinctions as these then their author must logically be God. It was to be on this aspect of divine positive law that Pufendorf was to concentrate his fire.³³ ³¹ M. Seidler, ‘‘‘Turkish judgement’’ and the English Revolution: Pufendorf on the right of resistance’, in Palladini and Hartung, Samuel Pufendorf und die europaı¨sche Aufkla¨rung, pp. –. ³² Alberti, Compendium Juris Naturae, caput I, §, p. . ³³ Melanchthon was far less prejudiced against Aristotle’s philosophical achievement than Luther, although he shared the latter’s distaste for the tradition of scholastic commentary through which Aristotle had been assimiliated to Catholic theology. Faced with the task of prescribing the philosophical texts to be studied in Protestant universities, he decided to adopt for teaching purposes that portion of ancient philosophy which contained the greatest body of acceptable truths in all branches of the subject (‘. . . zum grossen Teil Wahres u¨ berliefert, die Wissenschaften nach wahren Grundsa¨ tzen aufbaut und am wenigsten Irrtu¨ mer hat’: K. Hartfelder, Philipp Melanchthon als Praeceptor Germaniae (Berlin, ), p. ). Melanchthon was hostile on philosophical grounds to the Stoa, sceptics and Epicureans, so it was likely that he would achieve a rapprochement with Aristotle, especially since the range of Aristotle’s works was sufficiently comprehensive to cover all the branches of philosophy where instruction was required. Melanchthon edited the Nicomachean Ethics in , and also produced compendia derived from the Physics and Ethics, which remained standard university handbooks for over a century. It was a basic contention of the Epitome that divine Logos and Aristotle’s natural law were identical:



Natural Law Theories

Seventeenth-century moral theory had, of course, placed this traditional moral epistemology under severe pressure long before Pufendorf started to write: even if Descartes had not found general acceptance within the universities of Protestant Germany, nevertheless the impact of his new logic, and the notorious moral theory of Hobbes, had been sufficient to alter the philosophical agenda. If it was the case that our knowledge of men and the world was restricted simply to knowledge of our own individual experience, then it was difficult to see how a natural law which claimed a universal importance and comprehensive obligation could be generated from that exiguous psychological base. Inexorably, natural law came to be seen no longer as a metaphysical issue, but rather as an empirical and specifically psychological discipline as well. In this respect Pufendorf was entirely correct to identify Grotius and Hobbes as his crucial predecessors, since both had forced their opponents to fight them on new ground of their own choosing: Grotius, by insisting that the source of natural law must be located in a principle to which all nations could assent irrespective of religious affiliation; and Hobbes, by his contention that the individual is capable of creating his own moral world from his personal psychological calculations. In each case it was no longer adequate for the orthodoxy simply to restate its familiar case, since its hitherto unquestioned point of departure was under attack. The easy assumption of congruence between divine and human essence was now at the centre of the debate itself and had been since Grotius had first posed the theoretical possibility of the existence of moral norms in the absence of God.³⁴ In discussions of moral epistemology not only had the contents of the disputes altered, but so But moral philosophy is part of divine law. For it is the law of nature itself observed and explained by able men, just as able men detected the beginnings of Arithmetic in the minds of men, and afterwards arranged the variety of proportions into a method. However there is agreement that the law of nature is the very law of God in respect of those virtues which reason comprehends. And no more appropriate or true definition can be devised than if we define moral philosophy as part of divine law or of the decalogue, insofar as reason suffuses it. [P. Melanchthon, Philosophiae Moralis Epitome (Strasbourg, ), praefatio, pp. –] After Melanchthon it was almost impossible to criticise an aspect of Aristotelian ethics without incurring accusations of impiety, so closely (and ironically) had Aristotle been incorporated into the teaching of Protestant universities: ‘The Aristotelian philosophy, as modified by Melanchthon, is seen by many as the essential correlate of protestant religious dogma, so that for them an attack on the authority of Aristotle is regarded as an attack on protestant belief ’ (Hartfelder, Philipp Melanchthon, p. ). ³⁴ Of course, as Palladini has shown, Pufendorf’s claim to be completing the work of Grotius remains in part a polemical one, which assists him in disguising his reliance on Hobbes. Thus older accounts of his relationship to Grotius need to be treated with caution: e.g. J. Sauter, Die philosophischen Grundlagen des Naturrechts. Untersuchungen zur Geschichte der Rechts- und Staatslehre (Vienna, ), pp. –.

Leibniz and Pufendorf



had the definition of the subject itself. On this there was general agreement, a point that the opposition had to concede if it was in fact to sustain its opposition. In this sense the description of Grotius as ‘breaking the ice’ within the discipline of natural law was really appropriate.³⁵ It is indicative of how far orthodox natural law was forced back on to the defensive that Leibniz never systematised his thoughts on natural law, restricting himself to brief, if acute, observations on the defects of Hobbes and Grotius. Likewise, it is revealing that for all his scriptural ingenuity, Alberti’s concept of status integritatis essentially conceded his enemy’s case: for, by trying to prove the survival into the modern world of a pre-lapsarian morality, he effectively admitted that the argument was to be resolved not in the studies of theology and metaphysics, but in the empirical field of the actual historical behaviour of human societies as recorded in the Bible. While it is very easy to talk of ‘paradigm shifts’ in the history of ideas, in this instance there seems no other appropriate label to describe the innovative formulations of the science of natural law that Pufendorf inherited and brought to final form. This final form consisted of the development of a moral epistemology that stressed the importance of imposition by God and man, but was non-Hobbesian, because Pufendorf could provide an original concept of how a moral vocabulary is acquired and disseminated within a society that dispensed with reliance on the mere will of a superior. It is this very concept that Christian Thomasius stresses was the crucial factor behind his conversion to Pufendorf’s natural law, and Thomasius’ moment of insight provides us with a point of entry too. (Thomasius’ position is surveyed in detail in chapter .) In the sections of his defensive polemic Apologia de se et suo libro () to which Thomasius referred, Pufendorf seeks to defend himself against the nineteenth of the accusations made against him by Beckmann and Schwarz: ‘He denies that natural law is something implanted or an innate disposition’. First he refers to the passage in the De Jure Naturae to which they had objected: Yet here we by no means think it necessary to maintain, that the general Principles of Natural Law are innate, or imprinted, as it were, upon Men’s Minds, from their very Birth, in the Manner of distinct and actual Proposi³⁵ J. Barbeyrac, ‘An Historical and Critical Account of the Science of Morality’, p.  (the preface to Pufendorf, The Law of Nature and of Nations, ed. Barbeyrac). It should be borne in mind, notwithstanding, that Grotius originally postulated his notorious hypothesis of God’s absence as a rebuke to nominalism that did not compromise the important neo-scholastic elements within his thought.



Natural Law Theories

tions, so as to be readily express’d and uttered by them, as soon as they arrive at the Use of Speech, without further Instruction or Meditation. For that these native Ideas or original Characters, are no better than unwarrantable Fictions, any one may discover, who may be so curious as to observe nicely the Steps by which Children make their Progress in Knowledge, clearing themselves by little and little from the Ignorance of their infant State.³⁶

He comments sarcastically that by challenging this view Beckmann and Schwarz apparently require philosophers to spend their time establishing that children were not born as jurists: ‘It seems it will require a great effort from us to show that infants were not born Jurisconsults’.³⁷ If one takes seriously the proposition that natural law is innate within the minds of infants, then one must accept nothing less than that those minds possess a whole system of propositions expressing human duties, something that even if it were probable, cannot be demonstrated: Therefore nothing can be understood of the character of the law of nature other than as a system of ideas expressing the duties of man, a system located in the mental actions of a child . . . But how could anyone show that the ideas are located in a child’s mind?³⁸

Elsewhere, Pufendorf remarks that innate ideas are of two kinds: either they are derived from divine revelation and confirmed by experience, or they are ideas produced entirely from the exercise of human rationality without the intervention of empirical evidence. Neither of these definitions offers a satisfactory account of the epistemology of natural law, for no propositions can be demonstrated from reason alone even in mathematics; and there is no admissible or useful evidence of what God’s divine revelation might have implanted in the minds of children. If there were disagreements as to what the fundamental principles of natural law actually were, as there so often seemed to be between nations, then according to the traditional theory the dispute could only be resolved by inquiring of children what their innate ideas were on the issue, since the adults concerned could no longer recall with precision the ideas that they had possessed as children: ³⁶ Ibid., book II, ch. , §xiii, p. . For a summary of the criticisms made by Beckmann and Schwarz see Palladini, Discussioni seicentesche su Samuel Pufendorf, pp. –. Pufendorf’s response is drawn from the Apologia and the essay ‘De fundamentali Propositione Legis Naturalis’, published as cap.  of Specimen Controversiarum (). References to both are made from the collection Eris Scandica (Frankfurt/Main, ). ³⁷ Pufendorf, Eris Scandica (), p.  (Apologia, §). ³⁸ Ibid., pp. –.

Leibniz and Pufendorf



But if it may happen that not only individual men but also whole nations disagree over some requirement of natural law, what route will there then be for finding out the truth? For no one can remember the contents of his mind when he was born. Therefore the dispute may be referred to newly-born children so that they themselves may consider which of the views that are the subject of dispute are now to be found in their minds.³⁹

But Pufendorf’s most substantial objection was simply that to assume natural law was cognitively innate was to contradict the manifest techniques by which children learn to express abstract concepts through language. Any sentence that concerned a proposition of natural law was a complex compound of nouns and verbs, organised and linked at the discretion of the speaker. Experience indicates that these skills are only gradually acquired by children: initially children are instructed through pictures and not words at all; it is only over a long period that names are attached to objects by frequent repetition, and the links between objects indicated by use of the infinitive form of verbs. Finally, inflection is learnt as a skill, and the child can form sentences of increasing complexity for itself. But all principles of natural law, even simple prohibitions on homicide and theft, are complex notions, and it is inconceivable that they could be innate if the means to formulate them were absent: Every phrase consists of a noun and a verb, and combinations of them are formed through affirmation and negation. But new-born infants know neither nouns nor verbs, and much less do they know how to join them through affirmation or negation. And if anyone wishes to instill a particular kind of ideas in the minds of infants which may represent actions to be undertaken or shunned, he does not have recourse to sentences consisting of nouns and verbs. He will adapt himself to the understanding of his audience, if that type of idea can be represented in some shape. And of course it is clear that the knowledge of infants advances by stages. For at first they learn from repeated hearing the names of the objects which they see day by day. Then they progress to verbs expressing the commonest actions, but which are at first presented in the infinitive mood, as the simplest form. Gradually, then, nouns and verbs in the infinitive are combined. Inflections of the verb and the noun and some particles are slowly learnt as well. And by such increments even the ideas which can be expressed in statements are seen to develop. Since the commandments of natural law are such as ‘Thou shalt not kill, commit adultery, thieve, or lie’, I would like to know how images of murder, theft, and perjury can exist in the mind of an infant – concepts that can only be understood by older children.⁴⁰ ³⁹ Ibid., p.  (Specimen Controversiarum, cap. , ‘De Fundamentali Propositione Legis Naturalis’). ⁴⁰ Ibid., p.  (Apologia).



Natural Law Theories

So it was not sufficient to follow the orthodox defence that knowledge of innate ideas was imperfect and gradually brought to maturity by the process of education. Either the knowledge existed from birth in its articulated form or it did not exist at all: ‘For I think that they suffer from an imperfection as large as that of phrases in which neither a noun, or verb, or conjunction appears’.⁴¹ Instead it should be recognised that at birth the mind is a tabula rasa, and that the training of reason and the learning of language are simultaneous and not consecutive processes. This is so because all human epistemology is a combination of individual reflection upon and organisation of sense data, and thus a faculty which develops in concert with linguistic facility: Therefore it would be better to philosophise less incredibly and to adopt a position close to the received wisdom of very many ancient and more modern writers: to argue that the human mind at birth is like a tabula nuda, on which anything can be imprinted; or that it has a natural capacity to receive and retain ideas which are communicated through the senses; and that through comparison of these, the intellect is capable of devising some new ideas, and of increasing within itself the notion that it has received through the agency of the senses.⁴²

In addition to its faculty of apprehension the mind is capable of comparing information received through the senses, identifying harmony and discrepancy, and articulating notions only obscurely hinted at in the world of experience. Since it is clear that the mind also has the independent capacity to judge causes and consequences there is certainly mental existence and activity independent of the senses, but this second order knowledge is the product of living in the world, and by no means innate. It is the fruit of the seeds of knowledge which lie in the senses: Some take the view that there is in man’s mind not only a faculty of perception but also a capacity of comparison, and an ability to ascertain the degree of harmony and discrepancy between ideas, and in consequence of deriving new concepts from this observed harmony and discrepancy which are incorrectly said to have been already present in the senses. From this view it emerges that happy minds especially understand and know many things which they have not ever perceived through hearing or reading. It is wholly as if fertile fields return the seeds that were sprinkled on them. Thus the human mind can also be the judge of the causes and consequences of events: which is something that apparently cannot be regarded among the objects of the senses. By this means they correct that common assumption that there is nothing in the memory which was not previously in the senses, and assert on the other hand that there are many things in the mind which did not enter it through the senses.⁴³ ⁴¹ Ibid.

⁴² Ibid.

⁴³ Ibid., p.  (Specimen).

Leibniz and Pufendorf



Reason and speech mature together, since it is only when speech has been mastered to the degree that it can become internalised as unspoken reflection that those second order thoughts can be articulated and communicated to other persons: For it is clear that, from the moment we have the use of speech, our thoughts silently revolve in our minds in the form of sentences comprising verbs. To produce coherent language is the work of an already adolescent mind. And this mental speech, which unfolds itself in the mind by means of silent thoughts, develops through the same stages [as the faculty of speech itself ].⁴⁴

The processes by which we gain knowledge of the world and learn the conventional signs with which to describe that world are mirror images of each other: the framework offered by the conventions of language is a central part of all reflection by the mind on the information proffered by the senses, for it is the medium by which that data is communicated and organised, and therefore dictates at least in part the structure of that thought. It is a natural consequence of the emergence of introspective judgement that we should forget the way in which fundamental knowledge is acquired and conclude that certain knowledge is innate. Once epistemology becomes a transparent and apparently unmediated encounter between the individual and the world, it is easy to forget the underdetermined nature of the mind at birth: Now, the principles of knowledge are so clear as to enter men’s minds through small efforts and through light prompting, so that we can scarcely remember when we first took them in, and that they seem therefore not so much to penetrate the mind from outside, as to lurk within it and be stimulated by external events. Therefore, then, the traditional belief is strengthened that the seeds of knowledge were born with men’s minds, seeds which exist in an imperfect state, which then mature into a condition of perfect understanding once training and discipline have been employed.⁴⁵

If this is so then we possess sound reasons for the refutation of the major textual source employed by the advocates of innate natural law, Romans II: , which asserted that the law of nature was written in men’s hearts. According to Pufendorf that phrase should be accepted as ‘certainly figurative’, since it ‘implies no more than a clear and certain Knowledge treasur’d up in the Memory; of which the Persons spoken of are convicted in their own Consciences, by what means soever those Notions first enter’d into their Thoughts’.⁴⁶ This was an instance of knowledge acquiring innate status because its real origins had been ⁴⁴ Ibid., p. . ⁴⁵ Ibid. ⁴⁶ Pufendorf, The Law of Nature and of Nations, ed. Barbeyrac, book II, ch. , §xiii, p. .



Natural Law Theories

forgotten. In fact it was evident that natural law was only accessible to the human mind when that mind had gained sufficient linguistic aptitude to form abstract propositions. This skill was identical with the maturity of reason itself: As children indeed possess reason which has to be developed through practice when they have grown older, so actual and distinctive reasonings are not observed in childhood. The faculty of grasping natural law is present in the minds of infants when the use of reason has developed, just as before the use of reason actual and distinctive statements are absent.⁴⁷

By granting that natural law is solely the product of right reason we understand both that natural law is the product of second-order reflection on information we have gained through the senses, and that it must embody some principle that can be accurately communicated to and agreed on by other people in a conventional linguistic formula: Therefore when we acknowledge the Law of Nature to be the Dictate of Right Reason, our Sense and Meaning is this, that the Understanding of Man is endued with such a Power, as to be able, from the Contemplation of human Condition, to discover a Necessity of living agreeably to this Law; as, like wise, to find out some Principle by which the Precepts of it may be clearly and solidly demonstrated.⁴⁸

While Pufendorf’s stance on the question of innate knowledge had not been clear in the De Jure Naturae, his views on the interrelationship of moral epistemology and language were readily available in book IV, chapter , ‘Of Speech; and the Obligation that attends it’. In this chapter he constructs his argument around two undeveloped passages in Grotius’ De Jure Belli, using them to maintain that agreement by men to create a common language was itself the first instance of a combination of sociable instinct and calculative self-interest operating together to form a social institution. Logically prior to the agreement to form society itself was the imposition upon themselves and the world of a language, a step motivated by that principle of ‘unsocial sociability’ which Pufendorf regarded as the foundation of natural law.⁴⁹ The epistemological foundation for Grotian sociability was thus to be located in the original social institution of language, and moral epistemology itself was inescapably subject to the same guidelines as any other form of social discourse: morality consisted simply and solely in the consensual imposition of the ⁴⁷ Pufendorf, Eris Scandica, p.  (‘Spicilegium Controversiarum’, §). ⁴⁸ Pufendorf, The Law of Nature and of Nations, ed. Barbeyrac, book II, ch. , §xiii, pp. –. ⁴⁹ This phrase originates with Kant, and is applied to this author by I. Hont in his article ‘The language of sociability and commerce’.

Leibniz and Pufendorf



ethical judgements of men, for natural law and linguistic conventions were formal correlates. Pufendorf begins by adopting a robust attitude on the contemporary issue of whether language was composed of natural or conventional signs: ‘By Compact Men have imposed the Use and Power of Signifying, on certain Things, Actions, and Motions, and above all on Words’.⁵⁰ He cites Hermogenes’ opinions from Plato’s Cratylus with approval, but uses as his main authority Grotius’ examination of meaningful locutionary distinctions between pretence and falsehood: Deceit which consists in a positive action, if it is exhibited in acts, is called pretence; if in words, falsehood. Some persons establish this distinction between the two terms, because they say that words are naturally the signs of thoughts, while acts are not. But the contrary is true, that words by their very nature and apart from the human will have no significance, unless perchance a word is confused and ‘inarticulate’, such as is uttered by a person in grief, when it comes rather under the term act than speech.⁵¹

Pufendorf rejects the theory that language was framed perfectly for Adam by God since ‘tis manifest, that no languages are born with a Man, but all are learnt by Use and Experience’.⁵² Pufendorf contends that all languages are originally ‘very poor and very plain’ but as historical artefacts are both ‘enrich’d in Time with Copiousness and Elegance’ and ‘have . . . undergone many signal Alterations’.⁵³ The historical malleability of language is conclusive evidence that ‘the Power of Signifying determinately, thus or thus, that is, of raising such certain Ideas in our Mind, doth not belong to Words by Nature, but ariseth purely from the Pleasure and Imposition of Men’.⁵⁴ Even though Adam may be credited with the invention of names for animals that bore an analogical relationship to them, nevertheless the primitive roots of words were appointed by human imposition alone: And though, in all Languages, Things allied by Nature, are usually allied in Name, there being observed in most Words of this Kind, some Conformity of Structure, and which the Grammarians term Analogy; yet this is by no Means constant and regular, many Words having very particular Ways and Methods of Variation; and even this Analogy itself, inasmuch as it consists in a certain Inflexion and Combination of Words, is itself establish’d by human Appointment.⁵⁵ ⁵⁰ Pufendorf, The Law of Nature and of Nations, ed. Barbeyrac, book IV, ch. , §ii, p. . ⁵¹ Referred to in ibid., IV, ch. , §iv, p.  and quoted from H. Grotius, De Jure Belli ac Pacis/The Law of War and of Peace, ed. F. W. Kelsey,  vols. (Oxford, ), vol. II, p.  (book III, ch. , §viii). ⁵² Pufendorf, The Law of Nature and of Nations, ed. Barbeyrac, book IV, ch. , §iii, p. . ⁵³ Ibid. ⁵⁴ Ibid. ⁵⁵ Ibid., p. .



Natural Law Theories

Language is therefore the arbitrary and historically relative creation of man, and no part of God’s intervention in the world. But language depends for its existence not simply on imposition by a single person, but on imposition by compact agreed on by many: for a language to gain general currency there are required two compacts, the first to ensure the acceptance of standard conventional meanings of words and the second to ensure honesty and open-mindedness towards those who have a right to know the contents of our own minds. In our own self-interest we calculate that it is better to sacrifice the right to impose any range of verbal meanings we choose in favour of the capacity to communicate with our fellow men. This first compact is a precondition of the existence of any conceivable language which effectively makes it the first compact of society as such, the first agreement between individuals to secure cooperation. But in Pufendorf’s system it is, by virtue of this dual sociological function, also the first instance of the operation of that principle of sociability which underpins all human relationships. For it is a compact which combines both a calculation of how best the individual is to overcome the imbecillitas of the state of nature, and an instinct for sociability which Grotius believed could be inferred from the very existence of the faculty of language: That Man was design’d by Nature for a Life of Society, this alone might be a sufficient Argument, that he only, of all living Creatures, is endued with the Power of expressing his Mind to others by articulate Sounds: a Faculty, which, abstracting from this social Condition, we cannot conceive to be of any Use or Advantage to Mankind.⁵⁶

If, as we have seen, all second-order knowledge, such as moral epistemology is, is acquired correlatively to linguistic facility; and if the social institution of language is a matter of imposed meanings affirmed by consensus, then the vocabulary of moral epistemology is similarly a matter of human imposition of arbitrary meanings on the world and the fundamental principle of the law of nature is thus that same synthetic sociability which first produced language: But the mutual Communication of good Offices amongst Men could not be exercised, unless they had some certain Information of the Wants and Wishes of each other; and since the Condition of human Nature would not allow this to be conveyed in any other Way than by Signs striking upon the Senses; therefore the Use of those Signs was by some settled Compact to be ratified and ⁵⁶ Ibid., book IV, ch. , §i, p. , referring to Grotius, De Jure Belli, ‘Prolegomena’, §.

Leibniz and Pufendorf



circumscribed, that every Person might clearly apprehend what Service or Assistance was desired of him by others.⁵⁷

But such a compact only secures probable access to truth since inward thoughts can still differ from external indications, ‘men being naturally capable of Dissimulation and Disguise’.⁵⁸ Therefore a second compact must be devised to guarantee honesty of speech towards all those persons who may legitimately be said to be beneficiaries of our duty: In all Commerce and Business between men, in which by the Consent of the Parties, some Right or Obligation is to be produced, we are to declare our Meaning openly and clearly to the Persons with whom we deal. For otherwise, there could be no possible Way of rightly adjusting those Concerns.⁵⁹

This second compact involves the further addition of a criterion of ethical consistency to the first criterion of logical consistency: ‘So that besides that Logical Truth which consists in a Conformity between Words and Things, this Ethical or Moral Truth, of which we are now treating, superadds the Intention and Obligation of the Speaker’.⁶⁰ This use of two compacts to secure certainty in epistemology acts as the prototype of the two compacts that are required to institute civil society in Pufendorf’s political thought (the one to establish the need for a contract, and the second to offer a way of binding people to keep it). Pufendorf’s account of how epistemology consisted in the joint development of a conventional language with reasoning on experience was not novel in itself in the seventeenth century. A number of authors, notably Mersenne, had attacked the idea of a natural language and stressed that all the knowledge available to us consists in the external manifestations of things as interpreted and defined by conventional language. What was innovative in Pufendorf’s work was the specific way in which he applied his linguistic epistemology to moral epistemology and its vocabulary, which differs significantly from the accounts given by Hobbes and Locke of the relationship between language and the formation of moral concepts. There are, of course, parallels between Pufendorf’s linguistic epistemology and that most-neglected of Hobbes’ major works, the De Homine (). Hobbes’ discussion of the nature of vision in its opening ⁵⁷ Ibid., book IV, ch. , §iv, p. . ⁶⁰ Ibid., book IV, ch. , §viii, p. .

⁵⁸ Ibid.

⁵⁹ Ibid., book IV, ch. , §vii, p. .



Natural Law Theories

ten chapters shares Pufendorf’s anxieties about the way in which individual perceptions of truth will tend to breed dissent and conflict. Like Pufendorf, Hobbes sees the origin of language (sermo) in the imposition of names to objects, which he regards as a double-edged gain; for while the creation of a shared language lifts man above the animals and creates the possibility of a moral and political order, it contains the seeds of future disruption. Clear, ordered and standardised language (oratio) shares with the faculty of vision discussed at the outset of the work a potential, by virtue of its very claims to realism, for radical disagreement over the application of terms that will eventually foment future social dislocation: ‘Therefore by oratio man is not made better, but only given greater possibilities’.⁶¹ But Pufendorf does not share his predecessor’s thorough scepticism about the scope for linguistic disagreement, and believed in any case that his double compact had addressed the crucial issues. It is also illuminating to contrast Pufendorf’s account of the simultaneous maturation of rational and linguistic skill with Locke’s very similar analysis in the Essay concerning Human Understanding. Pufendorf’s account precedes Locke’s by eighteen years, and Locke never uses his analysis to demonstrate how men gain knowledge of natural law. Of course, Locke does share Pufendorf’s contempt for the doctrine of innate natural law: he had discarded this as early as in the second of his Essays on the Law of Nature in the early s. And although in this work he argues that the most likely way by which men know the law of nature is through rational interpretation of the experience of the senses, he does not examine this proposition in any great detail. Nor is the treatment of moral epistemology complete in the Essay: at most Locke agrees that language originates in voluntary and arbitrary imposition by man; but this imposition is not specifically related to the law of nature: Thus we may conceive how Words . . . come to be made use of by Men, as the signs of their Ideas, not by any natural connexion that there is between particular articulate Sounds and certain Ideas, for then there would be but one Language amongst all Men; but by a voluntary Imposition, whereby such a ⁶¹ T. Hobbes, De Homine, ch. ., trans. in T. Hobbes, Man and Citizen, ed. B. Gert (Indianapolis, ), p. . The core of Hobbes’ theory of perception and the creation of language is to be found in chs.  and  of De Homine, and this theory still can only be read in full in the Latin edition of Hobbes’ works. For an analysis of the significance of Hobbes’ theory of language in the formation of his moral theory see R. Tuck, ‘Hobbes’ Moral philosophy’, in T. Sorrell (ed.) The Cambridge Companion to Hobbes (Cambridge, ), pp. –; and for an analysis of the wider ramifications of his theory of language, T. Ball, ‘Hobbes’ linguistic turn’, in Reappraising Political Theory: Revisionist Studies in the History of Political Thought (Oxford, ), pp. –.

Leibniz and Pufendorf



Word is made arbitrarily the Mark of such an Idea . . . Words in their primary or immediate Signification, stand for nothing but the Ideas in the Mind of him that uses them, how imperfectly soever, or carelessly those Ideas are collected from the Things that they are supposed to represent.⁶²

                    Before we can examine the detail of Pufendorf’s moral vocabulary it is necessary to examine one further area of his thought, his use of the term cultura animi. In a much neglected monograph on the development of Herder’s concept of culture and the key words associated with that concept, Joseph Niedermann argued that in Pufendorf’s work there is a constant antithesis between the vulnerability of the individual in the imbecillitas and indigentia of the state of nature and the security of the cultura he experiences in civil society. The individual decides that the most rational way of furthering his own cultura animi is to accept the institutions of civil life, which are described by Pufendorf as cultura without any dependent genitive in qualification. Niedermann argues that this is the first instance in Western social theory of the use of a term comparable in its range of reference to Herder’s Kultur. This argument is anachronistically overstated as a result of a failure to appreciate that all the key words studied are themselves theory dependent; but nevertheless on the more local level he highlighted an important concept in Pufendorf’s social thought.⁶³ ⁶² J. Locke, Essay concerning Human Understanding, ed. P. Nidditch (Oxford, ), p.  (book III, ch. ii, §§ and ). ⁶³ J. Niedermann, Kultur. Werden und Wandlungen des Begriffs und seiner Ersatzbegriffe von Cicero bis Herder (Florence, ). Niedermann clearly establishes the importance of the concept of cultura animi to Pufendorf and delineates its ramifications within his social theory; but he goes beyond the evidence in arguing that Pufendorf has a fully-fledged concept of culture that emerges from the socialisation of the individual’s desire for self-improvement: ‘According to Pufendorf society brings forth culture, and is its proviso. The conveniences of life, morality, cultivation of the soul, and its education – all this that we call culture is the result and creation of society’ (p. ). Although such an argument is highly attractive, it stretches the available textual evidence unreasonably. The instances when Pufendorf uses cultura without an objective genitive are both few and unrepresentative. In almost all cases he means no more than industria humana, even when he is discussing the exercise of cultura animi within a social framework. Certainly he does not anticipate late eighteenth-century definitions of Kultur as Bildung: the relevant goal is not the organisation of a lettered culture, but the more basic one of escape from indigentia. Thus in the following example from the Boineburg correspondence, which Niedermann cites with approval, the relevant contrast is not so much between culture and barbarism, as between the correct application of industria humana and its abuse as luxuria: ‘And if we do not deceive ourselves, we must admit that perhaps we snatch the victory palm away from many others through some able show of luxuria, but that in moral integrity (by which true cultura ought to be judged) we must yield to not a few whom we call barbarians’. (Pufendorf, ‘Le due letteri di Pufendorf’, p. , with the original letter cited in Niedermann, p. )



Natural Law Theories

Niedermann showed by comparing the Latin texts of the first and second editions of the De Jure Naturae that by the time of the second edition in  there had been substantial revisions in the wake of the many polemics published in the meantime. In particular, Pufendorf uses the phrase cultura animi more frequently, and often in association with industria and disciplina to express the compulsive desire of the individual for self-improvement and escape from the miseries of the state of nature. In book II, chapter , entitled ‘On the Duties of Man towards himself; as well as in regard to the improvement of his Mind, as to the care of his Body and of his Life’, Pufendorf uses material from Bacon’s essay ‘How progress may be made in virtue’ to show that constant cultivation of the mind is necessary in order to gain the faculty of correct judgement so as to ensure that the impulses of the mind are regulated by reason: Improvement of the mind [cultura animi], which is an obligation on all men, and which is essential for the correct performance of man’s duty, may be reduced to the following: that each man may have the right views on those matters which relate to his duty; that each may form a valid judgement and estimate of those matters which are accustomed to arouse passions; that each man’s thoughts may be recalled to and restrained by the standard of sound reason.⁶⁴

By constant exercise of effort (industria) man is able to transcend his origins and put the state of his original weakness behind him: We viewed the natural state of man in another light, inasmuch as it is opposed to that improvement [cultura] which is possible in human life through the help, diligence, and discoveries of other men, or by one’s own thought and efforts, or by God’s counsel. In defining the place of this state, we have presupposed the nature of man, as it is now detected in shameful inclinations, and which is accompanied by the greatest need, ignorance and feebleness, before any resources come to it through the agency of other men. We have declared that because of poverty, neglect, ignorance, and weakness this is a most wretched condition, if we compare with it the advantages which afterwards accrue to us through the power of other men or through our own diligence.⁶⁵

The desire for self-betterment through exercise of mental and physical labour is natural to man and, indeed, it is inconceivable that he ⁶⁴ S. Pufendorf, De Jure Naturae et Gentium (Berlin, , rd edn), p.  (liber II, cap. , §). There are at least seven quotations from Bacon’s Essays within this chapter ‘On the Duty of Man towards himself’. There are also two large paraphrases from the essay ‘How progress may be made in virtue’ which go unattributed, perhaps because Pufendorf wished to conceal the scale of his indebtedness. See Niedermann, Kultur, pp. –. ⁶⁵ Pufendorf, Eris Scandica, p.  (Specimen Controversiarum, cap. ).

Leibniz and Pufendorf



would have been satisfied with the Garden of Eden, let alone with the state of nature: For I do not know whether it is probable that the human race, when still without sin, would have forever passed the time within the space of a single garden, feeding off the fruits that grew there spontaneously, without an improvement in its life [cultura vitae] being introduced by means of hard work and the various skills it had devised.⁶⁶

To this extent man is faced with an eternal succession of wants which he will always be striving and failing to meet, for as society becomes more sophisticated and complex, so the effort required to sustain it is greater: ‘And what about the fact that the more primitive and simple the life of a people is, the less is toil involved; and that more elaborate and brilliant structures of life require great application and a great deal of work’.⁶⁷ But this achievement, however imperfect and transitory, can only be brought about through the medium of social life which is its prerequisite. It is a prior requirement of the attainment of cultura animi that, as in the case of language, the individual surrenders his absolute right to strike out on his own course and recognises the necessary constraints of social life. Only within this framework can any personal improvements be effected; and so for the sake of personal gain and the general good, sociability must be observed: We can consider the natural state of man, if we imagine what his condition would be, if one were left entirely to himself, without any added support from other men, assuming indeed that condition of human nature which is found at present. Certainly, it would seem to have been more wretched than that of any wild beast, if we take into account with what weakness [debilitas] man goes forth into this world, to perish at once, but for the help of others; and how rude a life each would lead, if he had nothing more than what he owed to his own strength and ingenuity. On the contrary, it is altogether due to the aid of other men, that out of such feebleness [imbecillitas] we have been able to grow up, that we now enjoy untold comforts, and that we improve mind and body for our own advantage and that of others. [Quin potius quod ex tanta imbecillitate adolescere potuimus, quod infinitis jam commoditatibus fruamur, quod animum corpusque in nostrum & aliorum usum excoluimus, id omne ab auxilio aliorum hominum provenit.] And in this sense the natural state is opposed to a life improved by the industry of men. [Et in hoc sensu status naturalis opponitur vitae per industriam hominum excultae.]⁶⁸ ⁶⁶ Pufendorf, De Jure Naturae et Gentium, p.  (liber I, cap. , §). ⁶⁷ Ibid., p.  (liber IV, cap. , §). ⁶⁸ Pufendorf, The Law of Nature and of Nations, trans. Oldfather and Oldfather, p. . In this instance the Oldfathers’ translation of the  edition is to be preferred to Kennett’s since it reproduces the meaning of the original Latin with greater precision.



Natural Law Theories

Therefore it is the role of moral science to reinforce and promote sociability in the interest of furthering the cultura animi of the individual: it is possible to classify useful literature under three headings: moral teaching, medicine, and mathematics . . . The first is concerned with improvement of the mind [cultura animi] and the fostering of social life . . . and has an obvious use.⁶⁹

As we have seen, it was Pufendorf’s aim to provide Grotius’ theory of sociability with a foundational epistemology; and this goal is fulfilled in his discussions of both the origins of a moral vocabulary in the social compact by which language is imposed, and in his treatment of cultura animi as the driving force in human nature. In both cases it is clear that the acceptance of the need for society is a necessary premise for any possible natural law, and that this acceptance is in itself the embodiment of the first principle of natural law. For all further moral decisions are motivated by the same combination of an innate human instinct for company and a recognition that selfish motives will only stand a chance of fulfilment within a social framework that constrains everyone equally. Whether the issue is the institution of government by compact or the creation of private property, it is the same principle of ‘unsocial sociability’ that presides over decision-making. Pufendorf thus combines the central insights of Grotius and Hobbes within the same theory of natural ¨ berweg has remarked upon with precision: law, a fact which U His interpretation of natural law is essentially defined in relation to Grotius and Hobbes, in that he takes over from the former the principle of sociability, from the latter the interest of the individual, and unites them in the principle that sociability lies in the interest of every individual.⁷⁰

But this revised concept of sociability was not a sell-out to Hobbesian voluntarism, as Leibniz maintained. Morality was undoubtedly essentially man made rather than divinely derived, and imposed by arbitrary yet historically mutable will; but the difference was that Pufendorf’s natural law theory did not rely on the punitive powers of a divine or earthly superior for its obligation. In each case the individual chose to surrender rights by compact to society in order to further his own self-interest. These concessions were self-willed not constrained, and it remained in the individual’s own self-interest to sustain them if he ⁶⁹ Pufendorf, De Jure Naturae, p.  (liber II, cap. , §xiii). ¨ berweg, Grundriss der Geschichte der Philosophie, vol. III (Berlin, ), p. . For a recent ⁷⁰ F. U restatement of precisely what Pufendorf took from Grotius and Hobbes, see T. Behme, Samuel von Pufendorf: Naturrecht und Staat. Eine Analyse und Interpretation seiner Theorie, ihre Grundlagen und Probleme (Go¨ ttingen, ).

Leibniz and Pufendorf



wished to save himself from the gross disabilities and vulnerability of the state of nature, than which any set of social institutions was to be preferred. It may be argued, however, that the account of the motives an individual has for owing obligation are still underdefined, given that some may wish to risk the instability of the unregulated state of nature. These points may be demonstrated by an examination of the definitions of moral terminology that Pufendorf provides in the course of his De Jure Naturae. At the outset we are reminded that moral principles are second-order reflections on experience and not naturally inherent qualities of substances: ‘Moral Entities do not subsist of themselves, and for that Reason ought not, in general, to be rank’d under the Class of Substances, but of Modes’.⁷¹ By means of these reflections moral meaning is imposed on the world by intelligent beings; by God, and also by men for the security of their own lives: We may define our Moral Entities to be certain Modes superadded to natural Things and Motions by understanding Beings, chiefly for the guiding and tempering the Freedom of Voluntary Actions, and for the procuring of a decent Regularity in the Method of life.⁷²

Certainty and precision in morality do not consist in demonstration as in the physical sciences, but in the efficacy of the will by which that morality is imposed: We conceive the Difference between mathematical and Moral Demonstrations to be very clear and evident . . . the latter endeavour nothing farther than to prove for certain such a Quality of such a Subject, leaving the Decision of moral Quantities to the larger Scope and Range of human Will.⁷³

If we accept that all epistemology is basically a matter of man exercising his judgement and reflection upon what he has apprehended, then it follows that man’s reason is sufficient to attain certain knowledge in morality: We ought to establish this as a certain Principle, that there is both in the apprehending Faculty, and in the Judgement, a natural Rectitude . . . which will not suffer us to be deceived in Moral Things . . . Unless we would utterly subvert and destroy all the Morality of Acting, we must by all means, maintain, that the Understanding of Man is naturally right and certain, and upon sufficient Enquiry and Meditation does always apprehend Things clearly.⁷⁴ ⁷¹ Pufendorf, The Law of Nature and of Nations, ed. Barbeyrac, book I, ch. , §vi, p. . ⁷² Ibid., book I, ch. , §iii, p. . ⁷³ Ibid., book I, ch. , §x, p. . ⁷⁴ Ibid., book I, ch. , §iii, p. .



Natural Law Theories

If this morality is solely the product of will then its specifications can be altered in line with the changed requirements of that will over time: They [i.e. moral entities] obtain their whole existence from the determination of their Authors. The same Power assigns them such and such Effects, which when it sees convenient, it can destroy, without causing any natural Alteration in the subject to which they were applied.⁷⁵

These changes in human judgement occur because there is no absolute concept of the Good, which resides as an unchanging verity in the mind of God or in any terrestrial substance: instead, the Good can only be defined intersubjectively, as the beneficial outcome of Actions affecting different Persons in society. The needs and wants of those persons change and therefore the morality that seeks to maximise the Good must alter itself in line with those changes: But the chief Affection of the Will, and what seems immediately to flow from its Nature, is an intrinsical Indifference, upon the Account of which it is not restrain’d to any certain, fix’d, and unalterable way of Acting . . . For the right Understanding of this Indifference of the Will, somewhat ought to be premis’d concerning the Nature of Good in general: Now tho’ Good by many of the Philosophers is consider’d absolutely, so that every Being really existent may be pronounc’d Good; yet we, without regarding this Signification, which we judge to be very useless, will only consider Good, as it denotes Respect to others, and as it is said to be Good to one, or for one. According to which Sense the Nature of Good seems to consist in that Aptitude, by which one Thing is dispos’d to benefit, preserve, or compleat another.⁷⁶

At this point in the argument the contrast could not be more sharp with Leibniz’ belief that the source of natural law is the eternal verity of goodness within the mind of God. Once more we see that for Pufendorf all morality is posited on the assumption that social relationships already exist and require its regulation. God can impose moral norms, but if the major task of the moral entities is to safeguard society, then men will be chiefly responsible: The greatest Part of them [i.e. moral entities] were added at the Pleasure of Men, as they found it expedient to bring them in, for the polishing and the methodizing of common Life. And from hence the end of them is plainly to be discover’d, which is not, like that of Natural Beings, the Perfection of the Universe, but the particular perfection of human Conduct, as superior to brutal, in being capable of regular Beauty and Grace; that thus in so inconstant a Subject, as the Motions of Mens Minds, an agreeable Elegance and Harmony might be produc’d.⁷⁷ ⁷⁵ Ibid., book I, ch. , §iv, p. . ⁷⁷ Ibid., book I, ch. , §iii, p. .

⁷⁶ Ibid., book I, ch. , §§iii–iv, pp. –.

Leibniz and Pufendorf



But this is not to say that Pufendorf agrees with Aristotle that man is by nature a political animal: although man has a natural desire for society, he has no natural inclination for civil society as such, since his motives for forming basic social bonds – natural amiability and calculative self-aggrandisement – are satisfied with those initial steps: By allowing him [i.e. man] a natural Desire of Society, since this may be gratified by the primary Societies already described, this infers not his Desire of civil Society, any more than his general Love of Imployment bespeaks his Affection for that of a Scholar in particular.⁷⁸

All government must be established by compacts and covenants of which men are naturally ignorant as children. Indeed, it is thanks to the gradual education of reason through cultura animi that men are brought to see the necessity of political structures, which are thus not imposed by a superior but by men themselves, on the same principle of calculative sociability which initially brought them to cooperate, and to initiate natural law and society simultaneously: Neither is the Credit of this Doctrine shaken by that known Maxim of Aristotle, that a Man is born, or is by Nature, a political Creature. For, sometimes, affirming a Thing to be such and such by Nature . . . signifies a Fitness in the Thing to receive some Perfection by Culture and Discipline [culturam et disciplinam].⁷⁹

And so it is that Pufendorf’s developed political theory consists of two covenants and a decree: the initial agreement by men to accept civil government, and a second sanction approving the particular form of government to be adopted, which is then proclaimed as positive law. At each stage the parties involved may withdraw if their interests are not satisfied, therefore meeting the requirement that all social institutions are self imposed on those who are subsequently subject to them. A covenant is the appropriate mechanism because it is composed of a mixture of ‘fear and reverence’: fear of the social anarchy that would result from its absence, and respect for its terms because of the clear benefits that would flow from it.⁸⁰ Thus Pufendorf avoids the Hobbesian account of the formation of civil society, where all citizens give up the rights they possessed in the state of nature (except for a personal and rather unintegrated right of self-preservation), while the sovereign retains his: the members of Pufendorf’s civil society only resign rights conditionally on the appointment of a civil power, and can resume them ⁷⁸ Ibid., book VII, ch. , §iii, p. . ⁷⁹ Ibid. ⁸⁰ S. Pufendorf, De Officio Hominis et Civis juxta Legem Naturalem, trans. A. Tooke (London, ), p. .



Natural Law Theories

if that power infringes the terms of the covenant.⁸¹ This cuts both ways, for while the sovereign authority only embodies the covenanted authority of the citizens, it nevertheless possesses powers not held by any individual will or simple aggregation of wills: A Compound moral Person is then constituted, when several individual Men are so united together, that what they will or act by Virtue of that Union, is esteem’d a single Will, and a single Act, and no more. Hence it comes to pass, that whereas in other Cases, when many Men will or act any Thing, we conceive so many distinct Wills and Acts as there are in Number natural Persons, or human Individuals; yet when they close, and form a compound Person, they are supposed to have but a single Will, and every Action which they perform is construed as one only, although a Number of natural Individuals concurs in its Production.⁸²

Pufendorf’s political theory is uninterested in the question of the merits of specific forms of government since the more important point at issue is the construction of a rationale for the creation of any civil society as such. Once this has been evolved, then it logically follows that the detail of constitutional form is settled according to the local wishes of the parties to the covenants who are the best judges of the type of government that suits them: As all humane Affairs do not come immediately to Perfection, so were the first Institutions of Civil Society very simple and imperfect, till by degrees the Supreme Civil Power, together with such Laws and Constitutions as were requisite for the maintaining of a Civil Society, were instituted.⁸³

The importance of the covenant as the technical device which embodies the ‘unsocial sociability’ of natural law is seen even more clearly in Pufendorf’s account of how property may be legitimately obtained and retained. Pufendorf rejects the theory that property rights devolve from an original donation by God to Adam of exclusive dominium. Likewise he scorns the Hobbesian notion of a natural relationship between men and things which leads to the conflict that Leviathan is devised to end. Rather God’s donation to man had been of a ‘negative community’, which belonged to everyone, although no part of it was the positive ⁸¹ The distinctive character of Hobbes’ position is well captured by the discussion in A. Ryan’s ‘Hobbes’ political philosophy’, in Sorrell, The Cambridge Companion to Hobbes, pp. –. ⁸² Pufendorf, The Law of Nature and of Nations, ed. Barbeyrac, book I, ch. , §xii, p. . These anticipations of Rousseau can seem more striking than they are because of the Malebranchian vocabulary of volonte´s particulie`res and volonte´s ge´ne´rales added to Pufendorf’s original in Barbeyrac’s translation. On this issue see P. Riley, The General Will before Rousseau (Princeton, ), pp. –. ⁸³ S. Pufendorf, An Introduction to the History of the Principal Kingdoms and States of Europe, trans. J. Crull (London, ), p. .

Leibniz and Pufendorf



property of anyone in particular. It was the task of men themselves to determine on what basis of exclusive ownership or user’s rights the earth was to be divided up. Initially, primitive man adopted a system of individuated use rights with a correlative obligation on all men of mutual assistance in times of need. But with the increase of population and the exercise of cultura animi in the form of labour on the land, men naturally wished to acquire exclusive rights to property. It seemed most unfair that those who had contributed the greatest industria should receive an equal reward with those who had done little: But here it was very inconvenient that a Person, who had taken no pains about a thing, should have an equal Right to it with another, by whose Industry it was either first rais’d, or exactly wrought and fram’d, to render it of farther service.⁸⁴

But this did not mean that the land could be simply and arbitrarily appropriated; for there to be any social stability property acquisitions had to be ratified by covenant: ‘We can not apprehend how a bare corporal Act, such as Seizure is, should be able to prejudice the Right and Power of others, unless their Consent be added to confirm it; that is, unless a Covenant intervene’.⁸⁵ For social peace to remain it was necessary that all the members of that society participated in the act of alienation of land to those who had improved it. Once this initial compact was made, then the remaining land could be acquired simply by anyone who subsequently settled on it, since the danger of conflicts had now been headed off by the corporate involvement and consent of the people in the first covenant: So much . . . was, from the Beginning, taken into possession as Men thought convenient for their present occasions; the rest being left in its natural and negative Communion, to be possessed by any Person who should afterwards think fit to use it. Here, therefore, we must conceive a Covenant to have pass’d to this Effect: that those Lands which had been assign’d to particular men, by the express Agreement of the rest, or such as the rest were suppos’d to have resigned all their Title to, by permitting a single Person to quietly enjoy, and by taking to themselves other Lands in the same Manner, should belong to the . . . Improvers of them: and that what remain’d should pass into the Property of those who could afterwards fix upon it.⁸⁶

An important consequence of following this particular explanation of the emergence of property rights is that Pufendorf’s recommendations on the social responsibilities of property owners are meagre in comparison with those of Grotius and Locke. Grotius had held that ⁸⁴ Pufendorf, The Law of Nature and of Nations, ed. Barbeyrac, book IV, ch. , §vi, p. . ⁸⁵ Ibid. ⁸⁶ Ibid., book IV, ch. , §v, p. .



Natural Law Theories

the poor possessed a ‘perfect right’ in the property of the rich at times of dearth, in which times a community of goods is temporarily reasserted. However, in the De Jure Naturae these ‘perfect rights’ are redescribed as ‘imperfect obligations’ on the rich. There is no genuine correlativity of rights and duties in operation here, since the rich have only a voluntary duty of philanthropic relief if they feel sufficiently motivated by natural benevolence.⁸⁷ This is a significant modification because of the remorseless scepticism Pufendorf directs towards the efficacy of natural amiability as an unsupported motive for social action. And, of course, the modification derives from the terms of the original covenant by which property was set up: the poor cannot be said to have any rights since they have abandoned them by accepting the compact; nor do the rich have any more than a discretionary obligation to assist, since there are no restrictions under the covenant on their absolute right to dispose of the product of their property. Paradoxically this is the social price that has to be paid for the creation of a theory of property rights that rests on consent rather than on first occupation and mere force. This redescription of a right in terms of a duty is a famous feature of utilitarianism, and it has been insufficiently noticed how far this correlation is already a main contention in Pufendorf as a result of his extensive use of covenants. For if all substantial moral doctrine issues from a series of compacts stemming ultimately from a first social contract, then the rights possessed by the members of that society only come into play if the conditions to which they have agreed are broken. In those circumstances alone can they resume the rights of the state of nature that they had surrendered to the body politic by contract. Otherwise their moral world can be fully expounded by a vocabulary of duty. As we have seen, it was Pufendorf’s intention to find a way of preserving sociability as the fundamental law of nature while avoiding the introduction of a Hobbesian Leviathan into his theory. Voluntarism was successfully excluded from his moral epistemology by means of self-imposed covenanted agreements analogous to the first social agreements among men to secure a common language. But an unintended consequence was the generation of a moral discourse that in this respect was quite alien to its Grotian prototype. ⁸⁷ For a full discussion of the differences between Grotius and Pufendorf on this issue see I. Hont and M. Ignatieff, ‘Needs and justice in the Wealth of Nations’, in I. Hont and M. Ignatieff (eds.), Wealth and Virtue: the Shaping of Political Economy in the Scottish Enlightenment (Cambridge, ), pp. –.

Leibniz and Pufendorf



However, this departure from earlier seventeenth-century rights theories was all the more marked because the vocabulary of duty was accompanied by an attendant pessimism concerning man’s ability to meet his contracted obligations in civil society. There was nothing in Pufendorf’s theory of covenanted natural law to oblige him to introduce fear of punishment by a superior as an inducement to men to observe the laws of the society that they themselves had set up; but nevertheless human wickedness was quite capable (if left untrammelled) of destroying what it had carefully erected in its own interest: But because ‘tis beyond the Power of any moral Bonds, utterly to suppress our natural Freedom of acting; and therefore such is either the Lightness, or the Wickedness of most Men’s Minds, that they despise these Grounds of Dominion, as feeble Reasons for Obedience; hence there ariseth a Necessity of adding some further Motive, which may work on our disorderly Lusts with a stronger Effect than the bare Sense of Decency and Honour . . . Now there is nothing that could have such an Effect as this, but the Fear of some Evil to be inflicted upon our violating an Obligation, by some stronger Power, whose Interest it was that we should not have thus offended . . . For indeed Laws can hardly obtain their outward End and Effect, unless they are supported and arm’d with Strength, so as to be able, upon Occasion, violently to force a Compliance.⁸⁸

By removing God and the eternal verities vested in Him from the compass of natural law, Pufendorf had removed any point of external moral reference which transcended the legislative creations and obligations of human nature. This exclusion was consistent and productive as long as human nature was regarded as reliable and natural law as self-regulating. But once human nature was admitted to be inconsistent and incapable of regularly observing its contracted commitments, then the only recourse possible if society was not to disintegrate was to the voluntarism of the sovereign, even though that source of obligation had been successfully excluded from moral epistemology in the abstract. And if, in addition, the vocabulary of civic rights had been rewritten as one of civic duties, then it was no surprise that Pufendorf’s developed political theory began to take on a suspiciously Hobbesian appearance. This identity is all the more apparent in the terse summary form of Pufendorf’s De Officio Hominis et Civis, where, shorn of the qualifications and detailed explanations of the De Jure Naturae, the argument begins in places to seem a mere crib from Hobbes’ De Cive. It was ironic but inevitable that a project that had succeeded in providing non-voluntarist ⁸⁸ Pufendorf, The Law of Nature and of Nations, ed. Barbeyrac, book I, ch. , §x, p. .



Natural Law Theories

epistemological foundations for natural law should display a superstructure of practical politics far closer to Hobbes’. Pufendorf’s natural law theory therefore stands as no exception to the general chronic instability identified by Tuck as a leading characteristic of seventeenth-century natural law theories.⁸⁹                                 It has been necessary to describe in detail Pufendorf’s reformulation of the epistemological foundations of post-Renaissance natural law because it was this very achievement that the ‘historians of morality’ regarded as their central task to relate. It is therefore essential to be clearly aware both of Pufendorf’s own arguments and the views of his contemporary opponents before approaching the interpretative histories of his followers. Our juxtaposition of Leibniz and Pufendorf yields two observations of importance. On the one hand, Leibniz’ accusation that Pufendorf’s work is confused and circular is misplaced. Pufendorf offers a clear foundational epistemology for moral knowledge that avoids the trap of deriving all obligation in natural law from the will of a superior, however much this is later compromised in political practice. But Leibniz’ second main reservation, that Pufendorf has reduced the role of God to that of a merely voluntarist sovereign and punitive arbiter, remains persuasive. We may observe this readily in the subsequent separation of natural law from moral theology that Thomasius was quick to seize on as the logical consequence of Pufendorf’s natural law theory.⁹⁰ In the preface to his De Officio Hominis et Civis Pufendorf offers an explanation of these distinctive spheres. He argues that if we accept that ‘the light of reason, the civil laws, and the particular revelation of the divine authority’ are the sources for our knowledge of our duties then there are three forms of duty from which arise three respective studies: from the light of reason stem ‘the commonest duties of man, especially those which make him sociable with other men’, and this is the ambit of natural law; from the civil laws derive man’s obligations to the particular state in which he lives, which leads to the study of positive law and from divine positive law ‘appear the duties of a man who is a Christian, which ⁸⁹ Tuck, Natural Rights Theories, pp. –. For an excellent account of the lingering deficiencies of Pufendorf’s theory of obligation see Schneewind, ‘Pufendorf’s place in the history of ethics’, pp. –. ⁹⁰ See ch. , pp. –.

Leibniz and Pufendorf



is the realm of moral theology’.⁹¹ Pufendorf maintains that this is no exaggerated claim on behalf of natural law since the end and aim of the natural law is included only in the circuit of this life . . . but moral theology moulds a man into a Christian, [. . .] who especially hopes for the fruit of piety after this life . . . while here he lives merely as a way-farer or sojourner.⁹²

But in reality the scope of moral theology is very restricted. The decrees of natural law may be ‘adapted only to the human forum’ but within that forum they are absolute and there is no role for divine wisdom whatsoever.⁹³ For all their external actions men are accountable only to themselves and appointed worldly superiors: ‘it obtains as the prime Axiom in matters of Morality which are liable to the Human Forum, that every man is accountable for all such Actions, the performance of which were in his own choice’.⁹⁴ In fact moral theology merely acts as a supplement to natural law: God’s judgement is only important in those areas where externally men have acted in conformity with the law of nature, but internally according to impure motives: But for moral theology it is not sufficient that the external customs of men have been made in some way or another in keeping with decorum; but it is concerned chiefly with this, that the mind and its internal movements be fashioned after the will of the deity; and it reprobates those very actions which extrinsically indeed appear to be proper, but nevertheless emanate from an impure mind.⁹⁵

God may retain the ultimate power to consign men to eternal life or eternal damnation, but in all matters of public dispute – the only areas relevant to daily life – He was by definition now marginal, since the sociability of men had been demonstrated to be the self-sufficient criterion by which any threat to the stability of that social life should be repulsed. From this position it was a short step to the claim that the whole question of inner motivations could be disregarded and that issues which previously turned on this point could be re-assessed according to natural law premised on the sociability of men. As we shall see, Thomasius was to take this step in his attacks on witchcraft prosecutions and the continued practice of torture. ⁹¹ S. Pufendorf, On the Duty of Man and the Citizen, trans. F. G. Moore (Oxford, ), preface, pp. v–vi. See James Tully, ‘Introduction’ to Pufendorf, On the Duty of Man and Citizen, ed. Tully, pp. xxi–xxiv, for a full examination of the implications of this ‘demarcation’ argument in the constitution of natural law as a fully developed social theory. ⁹² Pufendorf, On the Duty of Man, trans. Moore, p. vii. ⁹³ Ibid. ⁹⁴ Pufendorf, De Officio Hominis, p. . ⁹⁵ Pufendorf, On the Duty of Man, trans. Moore, pp. vii–viii.

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Natural Law Theories

But the effective exclusion of God from man’s moral life as anything other than an extra-terrestrial judge also had drastic consequences for the coherence of Pufendorf’s discussion of religious toleration, leaving him uneasily placed between a priority for toleration in which individuals could pursue their salvific goals, and support for religious unity in the state.⁹⁶ In Pufendorf’s view, all disputes over religion were a potential danger to public safety, and yet he also insisted, at least in his later writings after the Revocation of the Edict of Nantes, that churches have separate ends from the state which the state cannot touch. As Zurbuchen has noted, this paradox both begs for and restricts the power of the sovereign to intervene in the salvific mission of churches: In his political writings published before the Revocation of the Edict of Nantes, Pufendorf was mainly engaged in a defense of Christianity as the true basis of the civic virtue of subjects as well as of the proper conduct of the prince. In this respect he was not so much concerned with toleration as with religious unity in a state. As a reaction to the politics of intolerance of the French king, which he formerly considered improbable, he perceived the problem of toleration from a different angle and elaborated . . . new arguments in defense of religious liberty.⁹⁷

For Pufendorf, toleration of all religious opinions can only exist in the earliest and pre-political societies after the initial agreement to form social bonds. Once civil society is in place then all authority must, to be consistent, rest with the secular power, since the body politic has agreed by covenant that the preservation of public order by that chosen authority is its highest social value. It was just this public peace that variety of religious practice endangered. Nor was this a matter that could be settled by a further covenant, since if God’s primary function in Pufendorf’s moral theology was to punish or reward, then rational calculation of his self-interest led the individual away from support of the majority and towards faith in the religious practice which he believed would win him eternal life. Pufendorf has no option therefore but to adopt the same position as Hobbes on the public control of religious ⁹⁶ For the range of views in the complex debate surrounding Pufendorf’s stance on toleration, see F. Lezius, Der Toleranzbegriff Lockes und Pufendorfs (Leipzig, ) and the recent and contrasting examinations of Pufendorf’s views by S. Zurbuchen, ‘Samuel Pufendorf’s concept of toleration’, in Difference and Dissent: Theories of Tolerance in Medieval and Early Modern History, ed. C. J. Nederman and J. C. Laursen (Lanham, ), pp. – and D. Do¨ ring, ‘Samuel Pufendorf and toleration’, in J. C. Laursen and C. J. Nederman (eds.), Beyond the Persecuting Society: Religious Toleration before the Enlightenment (Philadelphia, ), pp. –. ⁹⁷ S. Zurbuchen, ‘From denominationalism to Enlightenment: Pufendorf, Le Clerc, and Thomasius on Toleration’, in J. C. Laursen (ed.), Religious Toleration: ‘The Variety of Rites’ from Cyrus to Defoe (New York, ), p. .

Leibniz and Pufendorf



practice, even though the question of how to define the salvific path of the individual remains ambiguously answered: It cannot be denied that as everyone is bound by the Law of Nature to serve God; so also is it at the same time in his Power to perform the outward Ceremonies in such a manner as he believes they are most pleasing to God. But after Civil Societies were instituted, that same Power is thereby devolved to those who have the Supreme Administration of Affairs in a Civil Society. . . for if everyone had been left to his free Choice in this point the various and different Ceremonies in the Divine Service must needs have introduced Confusions, Divisions and intestine Commotions.⁹⁸

Historically those states have fared best that have entirely subordinated religion to the ends of the state. For example, Pufendorf argued that Roman religion had acted as an effective support to the Roman republic because ‘Religion was instituted for the benefit of the State that thereby they might the better be able to rule the Minds of the People according to the conveniences and the exigencies of the State’.⁹⁹ For Leibniz, Pufendorf’s views on moral theology and on the relations of church and state only demonstrated in detail the dangers of detaching moral theories from a basis in divine reason, a mistake that arose as a result of focusing only on the external actions of men in society. Morality should reach out beyond this world towards higher goals rather than simply settling for the lesser goal of a guaranteed civil peace. Otherwise the content of religion becomes erastian and subordinate to the narrow and particular ends of the state, wholly lacking in the transcendence that is its aim and essence. These views are distilled and sustained in his critique of Pufendorf’s final and posthumous work, Jus Feciale Divinum (Divine Feudal Law) () which sought to offer suggestions for reconciliation between the Lutheran and Reformed communions in the Reich. In normal circumstances the Lutheran Leibniz would have favoured conciliatory proposals for diminishing the number of disputes over trivial matters of ceremonial; but in this case he believed that Pufendorf had aligned himself with the Lutheran view with no real interest in discovering theological truth, and merely because he thought ⁹⁸ Pufendorf, Introduction to the History, pp. –. ⁹⁹ Ibid., p. . Dreitzel has recently drawn attention to the tensions that emerge within Pufendorf’s account of toleration in the De Habitu under the impact of the controversy over the role of confessionalism within absolutist systems of government that lay at the heart of the debate about confessional reunion, and which threatened the traditionally privileged relationship of Lutheranism with the secular power. See H. Dreitzel, ‘Gewissensfreiheit und soziale Ordnung. Religionstoleranz als Problem der politischen Theorie am Ausgang des . Jahrhunderts’, Politische Vierteljahresschrift,  (), pp. –.

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Natural Law Theories

a political settlement in Germany was more likely if the erastian political principles of the Lutherans were in the ascendant.¹⁰⁰ This criticism formed a variant on Leibniz’ standard line that Pufendorf had coarsely separated theology and philosophy through the invention of a tyrannical God and an artificially voluntarist man and an ignorant neglect of the logical consistency and purposive nature of the world that the proper study of metaphysics could reveal.¹⁰¹ Against this position Pufendorf defended his ‘demarcation’ of natural law and his derivations from it on the grounds that separate principia cognoscendi applied in different categories of knowledge and learning. This fundamental insight, that undercut or bypassed Leibnizian metaphysics, derived originally from Pufendorf’s account of how the learning of language and the development of the faculty of reason share the same social context. It was to be a crucial lesson in the formation of Christian Thomasius’ ‘practical philosophy’, and therefore in determining the priorities of the Fru¨ haufkla¨ rung itself. ¹⁰⁰ For the details of Leibniz’ attack see Do¨ ring, Pufendorf-Studien, pp. –; and for an examination of the issues involved in the debate over confessional reunion see J. Moore and M. Silverthorne, ‘Protestant theologies, limited sovereignties: natural law and conditions of union in the German empire, the Netherlands and Great Britain’, in J. Robertson, (ed.), A Union for Empire: Political Thought and the British Union of  (Cambridge, ), pp. –. ¹⁰¹ It is relevant to note that Pufendorf himself boasted that he had wasted little time in the study of metaphysics: see Pufendorf, Eris Scandica (Frankfurt/Main, ), p. .

 

Christian Thomasius and the development of Pufendorf ’s natural jurisprudence

             ’              Until recently the distinctive character of Christian Thomasius’ contribution to the social and political theory of the Fru¨haufkla¨rung has proved difficult to identify.¹ Partly this is a factor of the way in which his multifarious writings evade conventional categories: such a literary figure, who wrote across so many disciplines, and often in a highly controversial style, is often easy to dismiss as superficial. But the neglect is also attributable to the extreme complexity of the intellectual context in which Thomasius was working as the leading German disciple of Pufendorf. This chapter will attempt to elucidate this context through offering a detailed account of Thomasius’ uneasy and changing relationship with Pufendorf’s natural jurisprudence. As Palladini has shown, Pufendorf’s intellectual inheritance was both puzzling and contradictory.² While Pufendorf’s major writings on natural law associated him closely with Hobbes, his defensive polemics and ¹ The best recent introduction, which which attempts to embrace most aspects of Thomasius’ varied career, and certainly gathers in the best of recent scholarship, is the subtle study by P. Schro¨der, Christian Thomasius zur Einfu¨hrung (Hamburg, ). Two older, but important and influential monographs are H. Ru¨ping, Die Naturrechtslehre des Christian Thomasius und ihre Fortbildung in der Thomasius-Schule (Bonn, ), and W. Schneiders, Naturrecht und Liebesethik. Zur Geschichte der praktischen Philosophie im Hinblick auf Christian Thomasius (Hildesheim and New York, ). The most penetrating assessment of Thomasius as a practical university reformer is to be found in Hammerstein, Jus und Historie, ch. , pp. –. However, in many ways the most comprehensive treatment of Thomasius’ multi-faceted career is now to be found in two collections of essays: Schneiders, Christian Thomasius –, and Vollhardt, Christian Thomasius (–). Taken together both collections cover the most salient aspects of a very diverse career, while also offering an exhaustive bibliography of secondary literature written on Thomasius since . Yet none of these works investigates in sufficient detail either Thomasius’ relationship with Pufendorf or the central place of jurisprudence and methods for its teaching within his writings (see my review of the earlier collection in German History,  (), pp. –). In recent years Simone Zurbuchen has reappraised an important aspect of the intellectual rapport between Thomasius and his most important mentor: see ‘Gewissensfreiheit und Toleranz. Zur Pufendorf-Rezeption bei Christian Thomasius’, in Palladini and Hartung, Samuel Pufendorf und die europa¨ische Fru¨haufkla¨rung, pp. –. ² See Palladini, Samuel Pufendorf, discepolo di Hobbes, part II, ch. , pp. –.

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Natural Law Theories

especially his ‘history of morality’ developed an alternative account of the intellectual origins of his arguments. Together with other commentators of the second generation Thomasius had first of all to identify Pufendorf’s ‘real’ achievements, next to reconstruct their intellectual antecedents, and then to defend Pufendorf’s ideas against the other competing discourses of natural law associated with Leibniz, Coccejus and Christian Wolff. Over and above these intellectual goals, Thomasius was heavily engaged in reforming the university syllabus at Halle in the direction of eclecticism, the philosophical outlook which he believed was best embodied in Pufendorf’s work. Indeed, until the end of the eighteenth century Thomasius was remembered in Germany largely as a university reformer and the leading representative of the school of eclecticism: for the two generations of German academics after his death he was an original figure in his own right, and the way in which his intellectual career had developed directly out of Pufendorf’s writings on ethics and jurisprudence was largely forgotten.³ A representative example of this selective memory occurs in J. A. Fabricius’ Abriss einer allgemeinen Historie der Gelahrtheit (Outline of a General History of Learning), published in . His main point is that great intellectual progress had been made in Germany in the previous hundred years across a range of fields – theology, medicine and jurisprudence. But he was adamant that this progress had been dependent upon the prior creation of an environment of free enquiry within German Protestant universities. Thomasius was instrumental here in two respects: first, he established academic studies in the university of Halle which were both practically oriented and divorced from theological ramifications; and secondly, he generated a philosophical outlook, eclecticism, which was adopted quickly by the bulk of the Protestant universities. Thomasius had created a ‘practical philosophy’ as a theoretical concept and as an institutional reality, which stemmed from a coherent account of the scope of human rationality: ‘a well-founded, trained, healthy reason’.⁴ It was the combination of intellectual innovation and practical reform that had soon gained Thomasius a wide currency: ³ An indication of the rapid eclipse of Thomasius’ reputation in Germany after the advent of Kant is given in a letter of Schiller’s to Goethe which praises Thomasius as an able enemy of pedantry and a fine polemical journalist, but makes no reference to Thomasius’ own philosophy: see Schiller to Goethe,  May , in Der Briefwechsel zwischen Schiller und Goethe, ed. S. Seidel, vol. II, Briefe der Jahre – (Munich, ), p. . ⁴ Fabricius, Historie der Gelahrtheit, III, p. .

Christian Thomasius

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and many scholars of our time would not be able to inquire after and carry forward the truth with such freedom if he had not preceded them at extreme risk to himself; and from Halle outwards a light has been set up in most sciences at his instigation, which the eighteenth century has taken particular delight in, and which is called Eclectic-Reformed.⁵

To do justice to Thomasius’ work it is necessary first of all to identify his intellectual relationship with Pufendorf with some precision, since it is that relationship which is ultimately the source of all his theoretical and practical initiatives. A second prerequisite is to look for the connections between Thomasius’ jurisprudence and his ‘practical philosophy’, or in other words between his reading of Pufendorf and eclecticism. These are the two concerns of this chapter.       ’                      We are fortunate in possessing a fairly detailed account by Thomasius of his intellectual development and of his relationship with Pufendorf in particular, which is contained in the ‘Dissertatio Prooemialis’ (Preliminary Dissertation) with which he prefaced his first book, the Institutiones Jurisprudentiae Divinae (Institutes of Divine Jurisprudence).⁶ This work was written in  at the end of Thomasius’ period at Leipzig, and was intended as both a defence of Pufendorf’s general theory of natural law against his critics, and as a clarification of the distinction drawn by Pufendorf between divine positive law and natural law. The ‘Dissertatio Prooemalis’ and a lecture from the Halle period, which was reprinted with it in later editions, offer an explanation of how Thomasius had become acquainted with Pufendorf’s writings as a student, how this experience had been crucial to the development of his thinking, and why he felt it necessary to devote his first significant book to the exploration of its further implications. The Institutiones are both the final and most weighty contribution to the polemic that followed on from the publication of Pufendorf’s De Jure Naturae; but they are also only the first of several attempts that Thomasius himself made to provide a systematic ethics centred around human reason. Thomasius writes that after an early introduction to Grotius through his father’s lectures, he first read Pufendorf’s De Jure Naturae when an ⁵ Ibid. ⁶ The edition cited here is C. Thomasius, Institutiones Jurisprudentiae Divinae, in quibus Fundamenta Juris Naturalis secundum Hypotheses Illustris Puffendorffii perspicue demonstrantur, & ab objectionibus dissentientium, potissimum D. Valentini Alberti, Professoris Lipsicus, liberantur, fundamenta itidem Juris Divini positivi universalis primum a Jure Naturali distincte secernuntur & explicantur (Halle, , th edn).

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Natural Law Theories

undergraduate at Leipzig. His reaction was in part hostile and particularly directed towards Pufendorf’s views on the relative standing of divine and natural law.⁷ Looking back at this period, he reflected that the explanation for his initial reactions lay in his education, which had not countenanced any separate discussion of theological and philosophical issues, and so made conformity to the philosophical orthodoxy a matter of religious faith. Although unable himself to counter Pufendorf’s criticisms of traditional natural law theory, he preferred at this stage to remain loyal to received opinion: For since I did not know how to distinguish between theological and philosophical questions . . . I thought that anyone who dared even to doubt the truth of these matters was liable for eternal damnation; and although it was not clear by what means Pufendorf’s objections might be resolved, and the replies of scholars, with whom I conferred on the matter if there was an occasion to do so, were not wholly adequate, nevertheless the authority of so many respected men gained the upper hand, so that I blamed the dullness of my own wits rather than suspecting that something was amiss with received wisdom.⁸

This desire to reconcile traditional opinion with more modern explanations persisted for some years. It is, for example, clearly evident in ‘Philosophia Juris’, an early dissertation of , where Thomasius attempts to bridge the gap between Pufendorf and his leading opponent at Leipzig, Valentin Alberti, by postulating that the first form of social life was the coaeva societas that existed between God and Adam in the Garden of Eden: if Adam had recognised an obligation to obey certain commands of God, then a social relationship between God and man was implicit in the moment of Creation.⁹ This theory enabled Thomasius to retain Alberti’s concept of an original condition of perfection (status integritatis), which persisted in a weakened post-lapsarian form as the basis of all subsequent natural law. Thereby he avoided reference to any pre-social, Hobbesian state of nature, from which human sociability might then be said to be the historical and wholly man-made escape. However, this new formulation yielded too much to the traditionalists; for it was founded on religious presuppositions that had no transcultural applications, and so no general account of the origins of natural law could be generated from it. In the following years, when he was lecturing and practising as a barrister at Leipzig, he began a detailed study of Pufendorf’s jurisprudence in order to determine for himself the boundaries of theology and ⁷ See Thomasius, ibid., ‘Dissertatio Prooemialis’, §, p. . ⁸ Ibid. ⁹ See C. Thomasius, ‘Philosophia Juris’ () in Dissertationes Juridicae (Leipzig and Halle, ), p. .

Christian Thomasius

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jurisprudence.¹⁰ The results of this research were already visible in a dissertation of , ‘De Crimine Bigamiae’ (On the Crime of Bigamy), which sought to establish whether bigamy could be declared a crime in natural law as well as in divine positive law. Thomasius argued here that while sacred scripture clearly prohibited men taking more than one wife, nevertheless there was no crime in natural law, since human sociability and procreation were unimpinged upon: But we judge that bigamy by a man is not contrary to natural law a priori, because human sociability is not disrupted by it, and it does not directly conflict with the goals of marital bonds; neither is it wrong a posteriori, because God allowed polygamy in the Old Testament for the Jewish people, and indeed, by arrangement, to the Fathers.¹¹

For Thomasius, human nature was the sufficient tribunal before which the issue was to be placed, since human beings possessed both rational independence and innate sociability as the mark of the exercise of that rational faculty: ‘But human nature is at the same time rational and social, and has been without doubt since the Fall, for I cannot conceive human reason without society and sociability’.¹² Here, therefore, was a clear instance of a separation of content between divine positive law and natural law, where natural law could be derived narrowly from human capacities and needs without divine intervention. This example was the first indication of how Thomasius was to proceed to a detailed description of the distinctive functions and sources of divine and natural law in the Institutiones; but it is important to stress the degree to which he saw himself at this stage as merely an interpreter of Pufendorf to a hostile academic public. His arguments in this dissertation are in reality only an extrapolation of the opinions expressed by Pufendorf himself in the first chapter of book six of the De Jure Naturae.¹³ This is clear not only from a comparison of the texts, but also from the first surviving letter of Pufendorf to Thomasius of June , where in response to a request for comments on ‘De Crimine Bigamiae’, Pufendorf confirms that it embodies in bolder terms his own view that the rational norms of human nature are sufficient for a solution to this issue in natural law.¹⁴ ¹⁰ See Thomasius, ‘Dissertatio Prooemialis’, §, p. . ¹¹ C. Thomasius, ‘De Crimine Bigamiae’ () in Dissertationes Juridicae, p. . ¹² Ibid. ¹³ Pufendorf, The Law of Nature and of Nations, ed. Barbeyrac, book VI, ch. , ‘Of Matrimony’, §§xvii and xviii, pp. –. ¹⁴ See Pufendorf, ‘Briefe von Pufendorf’, ed. K. Varrentrapp, Pufendorf to Thomasius ( June ), p.  (also in Pufendorf, Briefwechsel, p. ). For a different view, that credits Thomasius with greater originality at this stage in his career, see Schneiders, Naturrecht und Liebesethik, p. .

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Natural Law Theories

The Institutiones emerged out of Thomasius’ lectures at Leipzig. After the death of his father in , which removed any remaining constraint upon his academic freedom, he offered courses on Grotius’ De Jure Belli ac Pacis and on Pufendorf’s De Officio Hominis et Civis that sought to refine the teaching of both these predecessors on the boundaries of divine and natural law.¹⁵ These courses were popular with the students, and so when asked to repeat them he took the opportunity to expand the material into a book. However, the structure of this work is still indebted to its origins: book one is devoted to the abstract issue of defining the subject of divine and natural jurisprudence, while books two and three attempt to specify the duties in natural law owed by men both to each other in society in general, and also within particular contractual relationships between individuals, such as marriage, and groups of individuals, such as international treaties. The later two books were for the most part, and by Thomasius’ own admission, simple summaries of the views of Pufendorf as expressed in De Officio Hominis et Civis; but in book one, which was published in advance of the whole in , Thomasius’ extrapolations from Pufendorf’s discussion of the theoretical issues broke fresh ground in bringing to the surface the innovative features of Pufendorf’s account of natural law. For Thomasius it was lex rather than ius that was the chief concern of jurisprudence: ‘Therefore jurisprudence in the very broadest sense is nothing other than knowledge of laws [leges]’.¹⁶ And the authority of lex resides in the order of a superior: ‘Lex is the order of a superior constraining his subjects to arrange their actions in conformity with that order’.¹⁷ Since God is the superior of all, then the source of all law is the will of God: but jus hominis is ultimately to be deduced from the will of God, and in general from the will of a superior, which insofar as it allows for freedom yields jus and as far as it provides constraints is called lex, and is the source of obligation.¹⁸

However, he proceeds to argue that we cannot know enough of God’s nature to be able to give an account of man’s duties to himself and to others. Divine positive law provides man with an adequate account of his duties to God, but no more. In scripture God may use the terminology of positive law familiar to human jurisprudence; but such conven¹⁵ For the impact of his father’s death see H. Luden, Christian Thomasius nach seinen Schicksalen und Schriften dargestellt (Berlin, ), pp. –. On the development of his teaching at Leipzig, see Thomasius, ‘Dissertatio Prooemialis’, §§–, pp. –. ¹⁶ Thomasius, Institutiones, ch. I, ‘De Jurisprudentia in genere’, §, p. . ¹⁷ Ibid., §, p. . ¹⁸ Ibid., §, p. .

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tions are only employed for our ease of understanding. In reality, the terminology is akin to a legal fiction used ‘humanly and unsuitably’.¹⁹ We may speak of God as the creator of law through his divine will; but in actual fact we do not know whether the source of divine jurisprudence is God’s goodness, his reason, or his will. In any case, it is reckless to assume from this inadequate knowledge that divine jurisprudence is akin to the operation of human reason, for while human reason is a familiar fact with which we have direct acquaintance, our knowledge of the divine mind only allows us at most to assume a simple analogy between the two, since they operate on different planes.²⁰ The true basis of God’s law remains shrouded in darkness; we are only enabled to perceive those positive parts of it which God himself has made available to us in the Scriptures to govern our conduct towards Him. If we do not know enough of the practice of divine jurisprudence to discover anything further than a mere analogy between it and natural law, then we must turn instead to other means to determine the content of natural law. Thomasius believes this may be done by drawing a contrast between the principium cognoscendi of natural and divine law: ‘Thus natural law and divine positive law differ from one another initially by reason of the process through which they are learnt: what in natural law is right reason, is divine revelation in the case of divine positive law’.²¹ Recognition of this cognitive distinction resolves immediately the problem of where the remits of theology and jurisprudence begin and end: But so that we should not throw a pruning hook into the field of venerable theology an extra limitation was placed upon the definition of jurisprudence, i.e. that it should at least relate to laws dealing with the security of man in this world.²²

For the mere fact that divine positive law has been unambiguously promulgated and disseminated, automatically defines and hives off its study from the parallel study of natural law.²³ Biblical teaching on bigamy is a clear example of this distinction in action: the prohibition is ¹⁹ Ibid., ch. IV, ‘De Interpretatione Legum Divinarum in specie, hoc est, de primis principiis Juris Naturalis & positivi naturalis’, §, p. . ²⁰ Ibid., §, p. ; ch. III, ‘De Interpretatione legum divinarum in genere, & de principiis practicis’, §, p. . ²¹ Ibid., ch. II, ‘De Jurisprudentia Divina’, §, p. . ²² Ibid., ch. I, §, p. . ²³ Ibid. ch. II, §, p. . However, the practical difficulties of developing this doctrine were soon to be revealed to Thomasius in his polemical exchange with H. G. Masius. See pp. – for a summary of this dispute and also the article by Grunert cited there.

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Natural Law Theories

clearly revealed and absolute, but has no connection whatsoever with, and cannot be derived from man’s rational nature. As his second reason for rejecting divine voluntarism as the foundation of natural law, Thomasius argues for the interdependence of human rationality and sociability. For Thomasius, man’s rational nature is defined as ‘a natural capacity for reasoning, or for deducing true conclusions from true first principles’.²⁴ This faculty is recta ratio, when the correct exercise of reason results in an action which benefits the human race in utilitarian fashion: But I call it a necessary consonance of an action with reason whenever the omission of an action granted to the human race would produce the ruin of the human race as an inevitable consequence; and its inconsistency whenever the same ruin follows upon its performance.²⁵

From this it follows that the first command of natural law is to follow the positive and negative dictates of right reason: ‘do those things which are necessarily in accord with man’s rational nature and refrain from those that are in conflict with it’.²⁶ What every individual human being can agree to be both rational and necessary is therefore automatically a principle of natural law; and from here it is but a small step to the conclusion that human sociability is the basis of natural law. Not only do all humans recognise its practical necessity; but also sociability is in any case an inextricable component of human rationality, if one accepts Pufendorf’s account of thought as a process of inner speech predicated upon the existence of an audience as the intended recipient of our conversation. Human reason itself is built upon the expectations of relationship and social communication. If God had wished man to eschew sociability, then he would have had to have made him an irrational being, which would have represented an impossible contradiction of God’s own nature.²⁷ That this was in fact Thomasius’ route to his theory of natural law can be demonstrated from within his own text, and there is ample evidence in his correspondence to show that Pufendorf was the source. First one should note the parallels between the two in Thomasius’ exposition of how human thought operates through the imposition of words upon sense data to provide conventions for social communication. Moreover, this exposition is deployed to the same end, as a means of rebutting the ²⁴ Thomasius, ‘De Jurisprudentia Divina’, §, p. . ²⁶ Ibid., ch. IV, §, p. . ²⁷ See ibid., §, p. .

²⁵ Ibid., ch. II, §, p. .

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Christian Thomasius

theory that there are ideas innately placed in the mind by God. This lengthy passage is therefore critically important, and deserves statement in full: Human reason is formed by thought. Thinking is a matter of linking term with term and proposition with proposition, which subsequently is called reasoning. But we are unable to reason except through words, and these are either preserved in the mind or articulated orally, so that a logos is either internal or external. Words, however . . . stem from the imposition by men living in one and same society. Further, whatever the Cartesians may say, infants do not have the power of thinking from the moment of birth, but have only the potential for thought. But this potential will hardly be realised in practice away from interaction with other humans . . . Let me summarise: there is no reason without conversation; conversation has no application outside society; and reason will not survive outside society. Or shall we then be mistaken if we say that that potential which is within men before the exercise of reason is nothing other than a tendency to reason with other men? Of course, every potential is aiming at realisation, as towards a goal. Thus, while we say man is rational, that is the same as saying that he is social. Socialitas indeed is a general tendency, invested in the whole human race by God, through which he wishes life with other men to be blessed and peaceful. But why peaceful? Because in a disturbed condition as such we cannot reason. This peaceful life, when realised, is called society; its opposite, as the Peripatetics themselves say, is anarchy.²⁸

For Thomasius, as for Pufendorf, the true basis for natural law lies in the command to do all those actions that promote sociability and refrain from those that inhibit its development;²⁹ and behind Thomasius’ conclusion lies a description of the intersubjectivity of reason and sociability very close to Pufendorf’s views outlined earlier. This interpretation may be argued on the basis of surviving correspondence and Thomasius’ own testimony, both of which indicate a close cooperation between the two of them in the composition of the Institutiones to ensure the correct transmission of Pufendorf’s views on this key issue. In a letter written after the publication of the Institutiones, Pufendorf reassured Thomasius that the passages with which he disagreed were trifling in comparison with Thomasius’ success in elucidating sociability, where Pufendorf himself had originally expressed himself with excessive caution: I admit, on the contrary, that some passages pleased me very much and especially that [[M]ein [h]ochgeehrter [H]err] has demonstrated the basic proposi²⁸ Ibid., §§–, pp. – (some sentences omitted).

²⁹ See ibid., §, p. .

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Natural Law Theories

tions on socialitas so clearly, and deduced everything so well from them. In many cases where he disagrees, he has struck upon my own opinion, which I have, however, not had sufficient boldness to publish, and so have remained dearer to public opinion.³⁰

Moreover, in later works, Thomasius refers with pride to his success in supporting Pufendorf’s theory of sociability against Pufendorf’s opponents, ‘through clear and distinct definitions and axioms’.³¹ In fact one can move beyond this position to show that it was Pufendorf’s arguments in this area that actually brought about Thomasius’ full conversion to his mentor’s reading of natural law as a whole. In the ‘Dissertatio Prooemalis’ he had explained that it was the publication of Pufendorf’s Apologia de se et suo libro () that had removed his doubts over the latter’s theory of natural law: But my view turned out to be wrong, for soon Pufendorf’s Apologia was delivered to us; and when I read it through I felt that my weapons were inadequate to withstand its attack. Almost simultaneously I began to scatter certain clouds which up to that point had obscured my mind.³²

In particular, Thomasius was impressed by the author’s refutation of the doctrine that innate ideas, and among them the principles of natural law, had been implanted by God in the human mind. He had been influenced here by the views of Beckmann and Schwarz in their Index Novitatum (List of Innovations). But the arguments of the Apologia persuaded him of Pufendorf’s real meaning: But in response the famous man [i.e. Pufendorf ] proved with complete satisfaction by proper demonstration in the Defence p. ff and in other parallel scriptural references that ‘by inscription on the human heart’ means something very different from an innate condition of this type.³³

After reading this pamphlet it was clear to Thomasius that there were very good reasons to support a categorical separation of natural law and moral theology, and that it was entirely legitimate to view natural law as focused essentially on man: For I had thought up to that very time that everything defended by theologians as a matter of general belief was theological, and that a good man should ³⁰ S. Pufendorf, Briefe Samuel Pufendorfs an Christian Thomasius (–), ed. E. Gigas (Munich and Leipzig, ), Pufendorf to Thomasius ( March ), p.  (also in Pufendorf, Briefwechsel, p. ). ³¹ C. Thomasius, ‘Von der Freyheit der jetztigen Zeiten gegen die vorigen’ (), in Kleine Teutsche Schriften (Halle, ), p. . ³² Thomasius, ‘Dissertatio Prooemialis’, §, p. . ³³ Ibid., §, p. .

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take every care that no man listen to a heretic or innovator (which then I held to be synonymous). But deeper consideration of the difference between theology and philosophy as well as closer reading of writings on politics and public law had taught me that many subjects which were not theological but pertained to moral philosophy or jurisprudence were indeed commonly held to be theological . . . But I saw Pufendorf explain these very opinions to his opponents, and saw that these men invested great hopes of victory in those false hypotheses.³⁴

                    At the same time as Thomasius developed his natural law theory he dramatically rebelled against the traditional form and content of academic philosophy, and embraced eclecticism.³⁵ The process occurred alongside and in concert with his acrimonious departure from the university of Leipzig in , and subsequent appointment to the senior chair in philosophy at Halle. This abrupt professional caesura has perhaps been adopted too readily as a convenient boundary separating the educational reforms and eclectic works of Thomasius’ Halle period from his study of natural law at Leipzig, whereas in fact the origins of his ‘practical philosophy’ may be discovered within the writings completed before . Thomasius’ philosophical allegiance to eclecticism derives from his case study of moral epistemology, rather than from any separate methodological enquiries. For his first discussion of the subject is in the context of his elucidation of Pufendorf’s natural law theory, and it is that theory which remains to him the best example of the eclectic approach in action. Likewise, his increasing anti-Aristotelianism stemmed primarily from his study of modern ethics, a fact which is disguised in the Institutiones by the elimination of polemical references to Valentin Alberti, his former teacher and later colleague at Leipzig. Nevertheless, it is apparent from lectures that Thomasius subsequently gave in Halle that Alberti’s case against Pufendorf was his main target, ³⁴ Ibid., §, p. . ³⁵ For Thomasius’ position within eclecticism the best analysis is still Dreitzel, ‘Zur Entwicklung und Eigenart der ‘‘Eklektischen Philosophie’’’, pp. –. J. J. Brucker in his famous Historia Critica Philosophiae () clearly overstated the impact of eclecticism on European early modern philosophy as a whole; but its importance for Thomasius and his school as a weapon for attacking pedantry and justifying free selection from the past of the discipline and free reflection upon it is undeniable. As we have seen in chapter , it is important to note that eclecticism had considerable standing in Germany before the contributions of Pufendorf and Thomasius because of its identification with experimental science (see pp. – of chapter  and also the texts cited there in note ).

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Natural Law Theories

so that quite apart from his desire to present the full force and implications of Pufendorf’s ideas, he also intended, more practically, to subvert that pedagogic synthesis of philosophy and theology which Alberti’s approach supported and reinforced.³⁶ This continuity between his earlier and mature writings will now be examined in detail. We have noted that Thomasius first refers to eclecticism in a letter to Pufendorf written during the composition of the Institutiones, when he asks him whether he too subscribed to the eclectic approach. Unfortunately we only possess Pufendorf’s reply, written in , and therefore cannot precisely determine the extent of Thomasius’ own commitment. But his practice is certainly in line with the specific role Pufendorf reserves for eclecticism in the foundation of new disciplines: [You] prefer the Eclectic sect to all others in philosophy, and I have also been in this sect. Taken in isolation it is not the best, except where knowledge has not yet been strictly deduced from principles. Where this has happened, then it has no further role e.g. in geometry, and were moral and natural philosophy reduced to true knowledge, then eclectic philosophy itself would cease as well.³⁷

Eclecticism barely features in the Institutiones except where Thomasius admits to admiration for the work of J. C. Sturm, whose essays had recently been published under the title Philosophia Eclectiva.³⁸ It bulks much larger in his next two books, Introductio ad Philosophiam Aulicam (Introduction to Court Philosophy), which sought to outline an appropriate university course in logic and ethics for future courtiers ³⁶ In his lecture of , ‘Ein Collegium Privatum u¨ ber seine Institutiones Jurisprudentiae Divinae’, he explains in detail the opposition between Alberti’s philosophia christiana and the argument of the Institutiones. He acknowledges ironically that Alberti was his target throughout, and that now he is no longer teaching in the same city there is no need for continued reticence: see C. Thomasius, ‘Collegium Privatum’ in Institutiones (paginated with ‘Dissertatio Prooemialis’, at p. ). He also insists that it is not sufficient to set up Pufendorf’s teaching on natural law in place of Alberti’s; rather a whole new syllabus of study is required for philosophy if the fresh agenda of issues raised by Pufendorf’s ethics are to be addressed. If the fundamental question is now how man should in practical politics and actual circumstances define the good life, then the academic structure underpinning the philosophia christiana should itself disappear in favour of his own courses in philosophia practica: see ibid., p. . It was this task that he set about with vigour on his arrival in Halle as his first priority: see F. Paulsen, Geschichte des gelehrten Unterrichts an den deutschen Schulen und Universita¨ ten vom Ausgang des Mittelalters bis zur Gegenwart, vol. I (Leipzig, ), pp. –; and A. Rausch, ‘Christian Thomasius’ Bedeutung fu¨ r deutsches Geistesleben und deutsche Erziehung’, in M Fleischmann (ed.), Christian Thomasius. Leben und Lebenswerk (Halle, ), pp. –. ³⁷ Pufendorf, ‘Briefe von Pufendorf’, p. , Pufendorf to Thomasius ( June ) (also in Pufendorf, Briefwechsel, p. ). For related discussion, see chapter , pp. –. ³⁸ In this context Sturm’s work is used as an example to rebut those who attacked Pufendorf and himself for unjustified innovation: see Thomasius, ‘Dissertatio Prooemialis’, §, p. .

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

and government ministers, and Einleitung zu der Vernunft-Lehre (Introduction to the Theory of Reason), a textbook of logic in which Thomasius’ epistemology is given its fullest expression. Both of these works were written in Leipzig and were specifically intended to continue the work begun in the Institutiones.³⁹ In  Thomasius recommended his students to buy all three works if they were fully to understand the nature of his refutation of Alberti’s epistemology and the distinctive account of the sources of human knowledge that he had developed in contrast.⁴⁰ The Introductio and the Einleitung take as their subject Gelahrtheit, or practical learning, as opposed to Gelehrtheit, the academic study of philosophy.⁴¹ The former is within the reach of every man or woman, because each of us has a common means of attaining knowledge, which is the imposition of meaning on sense data and the communication of those conventional meanings through speech.⁴² But each man’s access to Erkenntnis is blurred in practice by a failure to distinguish between principia cognoscendi and objecta scientiae. Failure to perceive that a source of wisdom such as the Bible may be legitimately used to provide two distinct forms of illumination, historical and mysterious, has led to a lack of self-conscious discrimination as to the principia cognoscendi to be employed in each case.⁴³ Alberti had erred particularly in this respect by retaining Aristotle’s concept of the summum bonum within his Philosophia Christiana: for no self-consciously Christian philosophy could, after the loss of the possibility of all earthly perfections, assert such an absolute.⁴⁴ If any truths concerning man’s relationship to God and the world were to be found, then a necessary precondition was an understanding of the logic involved; and logical truth in this sense consisted in a clear perception of the principia cognoscendi appropriate to the object of knowledge. The achievement of this symmetry indeed defined the correct function of the subject of logic itself, to which these books were devoted: ‘Thus the truth of logic will be the symmetry or harmony between our thought and the object of that thought outside the mind’.⁴⁵ ³⁹ See C. Thomasius, Einleitung zur Vernunft-Lehre (Halle, , nd edn), ‘Vorrede’, p.  (unnumbered), for the completion dates of these books. ⁴⁰ See Thomasius, ‘Collegium Privatum’, Institutiones, p. . ⁴¹ This distinction is helpfully elucidated in F. M. Barnard, ‘The ‘‘Practical Philosophy’’ of Christian Thomasius’, Journal of the History of Ideas,  (), p. . ⁴² See Thomasius, Introductio ad Philosophiam Aulicam, p. . ⁴³ See ibid., p. . ⁴⁴ See ibid., p. . ⁴⁵ Ibid., p. .

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Natural Law Theories

This perception may only be achieved if men realise that they have been provided with two distinctive and separate lights of nature as the principia cognoscendi of secular and divine wisdom: possession of true Gelahrtheit is no more convincingly indicated than by the ability to follow these parallel paths to wisdom in appropriate instances from everyday life. The key point is to appreciate that God has given men two different techniques, or ‘lights’ by which to distinguish the correct approach to a problem.⁴⁶ These two lights are, respectively, human reason and divine revelation: the one enables man to gain sufficient truth to guide his conduct within earthly life;⁴⁷ the other gives man supernatural insight, in so far as his fallen condition allows, into the knowledge of God necessary to attain eternal life.⁴⁸ So we see that the foundation of Thomasius’ logical epistemology rests upon the account of the respective sources of divine and natural law that he had extrapolated from Pufendorf. It is at this point that Thomasius departs from his task of extending the arguments of Pufendorf to the conclusions implied, but never fully stated by their author, and introduces an original analysis of his own. He maintains that it is not sufficient simply to separate out the methods by which secular and religious wisdom are attained; for over and above the exercise of Verstand and Offenbarung upon their appropriate subject matter it must be appreciated that all forms of knowledge have a history irrespective of source, and indeed that no account of Erkenntnis can be complete unless that knowledge is itself seen as a historical development: Moreover since the remit of Welt-Weisheit involves argument about creatures it is indisputable that it extends not only over current affairs but also to a considerable extent over distant or past matters over which it cannot assume a rational form unless at least some historical relationship is presupposed.⁴⁹

But just as the principia cognoscendi to be employed in secular and sacred affairs are different, so is the use of history different in each case. In the study of moral theology, history and logic are entirely subservient to divine revelation; in scripture, for instance, where divine will is clearly revealed, there is no further room to consult human experience. But in the sphere of philosophia practica, the history of human reason, as expressed in philosophy, is given a weight equal to that ⁴⁶ See Thomasius, Einleitung zur Vernunft-Lehre, p. . ⁴⁹ Ibid., p. .

⁴⁷ See ibid.

⁴⁸ See ibid., pp. –.

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accorded to the record of divine positive law; the history of humanity’s attempts to solve its ethical dilemmas is advanced to a position of prominence, and although the relevance of that inheritance to current debate may be determined anew through the exercise of contemporary Verstand, nevertheless the study of the history of the progress of human reason becomes a necessary first step to any future philosophical endeavour.⁵⁰ For a man to become wordly wise (which Thomasius proclaims as his pedagogic aim) it is necessary to combine a knowledge of history with a study of philosophy derived from self-knowledge.⁵¹ So it is essential for every man desiring to learn true Gelahrtheit to be aware of the philosophy of eclecticism, a philosophy that rests simultaneously upon the exercise of individual reason on the present and also reason’s scrutiny of its own past. This duality is then central to the fundamental definition Thomasius offers of eclecticism: I define eclectic philosophy as an insistence on independence of any one opinion or of swearing by the word of any one teacher. It is a matter of gathering into one’s store from the words and writings of any learned men whatever one knows that is true and good having been convinced not by the reputation of the teacher but by the weight of arguments, and even to add to it subsequently from one own’s knowledge, and thus see with one’s own eyes rather than with those of other people.⁵²

It is therefore particularly significant that Thomasius should preface the introduction with a schematic history of philosophy, ‘De Philosophorum Sectis’ (‘On the Sects of Philosophers’), in which he outlines the history of philosophical sects in a traditional manner, but with the polemical purpose of demonstrating the superiority of eclecticism over scholasticism. The lists of ancient and post-Renaissance philosophers still pair off in sects that are mirror images of each other, on each side of the revival of learning; but there is all the same a new pattern emerging. First, modern philosophy is perceived as not so much a conflict between sects championing different doctrines but rather a matter of differences of method, which he categorises as embodied in the attitudes of the sceptics, eclectics, syncretists, and mere enemies of philosophy.⁵³ But among these groups that have transcended sectarianism, only the eclectics deserve respect: only if followers of a philosopher ⁵⁰ Ibid. ⁵¹ See ibid., ‘Vorrede’, p.  (unnumbered). ⁵² Thomasius, Introductio ad Philosophiam Aulicam, p. .

⁵³ See ibid., p. .

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Natural Law Theories

observe a certain intellectual distance from their predecessors and mentors will further progress in the subject be made; better a ship or building continually under scaffolding than one that is unaltered but moribund.⁵⁴ But the main practical example that Thomasius had in mind of the superiority of eclecticism over narrow sectarianism was perhaps embedded within his own intellectual relationship to Pufendorf, where he had been allowed to move on from his teacher’s doctrines with Pufendorf’s blessing. Looking back on this experience in a dedicatory preface of , he records a reflection of Pufendorf’s own on the history of philosophy which illustrates how he drew his interpretation of the historical relationship between sectarianism and eclecticism from his teacher: At the same time I shall praise this single virtue among the rest which you enjoy: when in my Institutes of Divine Jurisprudence I disagreed with you in a few conclusions, that independence did not reduce your affection for me; rather, I have experienced greater proofs of your most esteemed friendship since then. You have revealed to me that you are free from the common vice of the ancient philosophers, who at one time were very famous, (Pythagoras, Plato, Zeno, Epicurus, Aristotle, and others), and who were unable to pass on the independence they themselves had employed to their pupils. While striving after the eclectic philosophy, they soon transformed it again into sectarianism.⁵⁵

The history of philosophy offered to the reader in ‘De Philosophorum Sectis’ was clearly intended for use as a university text. This is apparent from internal evidence such as the absence of scholarly apparatus, the terse, epigrammatic use of Latin, and the doxographical summaries of philosophical doctrines characteristic of each school. But it gains added significance among Thomasius’ early work when it is appreciated that a course on the history of philosophy, together with one on logic, provided the introduction to the fundamental parts of philosophy (by which were meant ethics, politics and economics) in the new syllabus that Thomasius himself constructed at Halle. At the start of the Introductio ad Philosophiam Aulicam he justifies this priority of ethics and politics over metaphysics on the grounds that these subjects will be of far greater immediate use to future governors and civil servants than the Aristotelian metaphysics traditionally taught in German universities: in the art of living, even at court, it is more important to have a sound theory of ⁵⁴ For this image, see ibid., p. . ⁵⁵ J. Thomasius, Dissertationes LXIII, ed. C. Thomasius, Dedication to Pufendorf written by C. Thomasius, pp. – (unnumbered).

Christian Thomasius

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knowledge, and some practice in generating moral norms from that theory.⁵⁶ In making this assessment of where the priorities of the eclectic reform of philosophy should lie, Thomasius was erecting his own personal experiences as principles. For it was exactly in these areas that he and Pufendorf had expressly confronted the neo-scholasticism of the universities, which could only be defeated by recruiting court patronage to one’s side, and in turn accepting a pedagagic role in shaping future courtiers. However, with his natural tendency to redescribe and relocate his own efforts as part of a grander intellectual phenomenon, it was not long before these local disagreements were rewritten in historical terms as the displacement of one outworn tradition by another more vigorous approach.⁵⁷ This trend is already apparent in the sections of ‘De Philosophorum Sectis’ devoted to post-Renaissance philosophy, where Thomasius is at pains to emphasise both the remarkable progress already made in ethics by Grotius, Hobbes and Pufendorf, and the likelihood that this field will remain the most fruitful for philosophy tout court. Moral philosophy is indeed defined in terms of a contest for orthodoxy between the natural law tradition of Grotius and Pufendorf and various moribund forms of Aristotelianism.⁵⁸ Thomasius was certain that a successful resolution of this struggle for control of pedagogic orthodoxy in the universities would only be won by the kind of rigorous separation of natural law and moral theology which he had attempted in the Institutiones. Only by such a precise demarcation could the ethical systems of Grotius and Pufendorf be freed from a residual scholastic content.⁵⁹ In his period at Leipzig Thomasius had already given clear indications of how such a syllabus might be put together. His famous German-language lecture of  had recommended the manuals of worldly prudence written by the Spanish Jesuit Balthasar Gracı´an as student texts; and he had insisted as well that all students of the humanities should be given a basic training in logic and rhetoric as a preliminary to familiarisation with some moral philosophy, ⁵⁶ See Thomasius, Introductio ad Philosophiam Aulicam, ‘praefatio’, p. . ⁵⁷ This philosophical equivalent of the ‘pathetic’ fallacy is perhaps Thomasius’ great weakness as a thinker. As Barnard rightly remarks, ‘Thomasius frequently mistakes greater plausibility in formulation for reasoned argument’ (Barnard, ‘‘‘Practical Philosophy’’’, p. ) This point is taken further by Dreitzel, who argues that Thomasius boldly adapted aspects of eclectic thinking to support his overriding recommendation of the need for independent exercise of subjektive Vernunft. (Dreitzel, ‘Entwicklung und Eigenart’, p. ) ⁵⁸ See Introductio ad Philosophiam Aulicam, p. . ⁵⁹ See Thomasius, ‘Collegium Privatum’, passim, on this point.

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Natural Law Theories

politics and economics. Their future occupations would be likely to involve knowledge of these subjects.⁶⁰ He soon carried through this programme at Halle, where he had effective control of the content of the courses in the law and philosophy faculties. Theology was effectively expunged from both, and the philosophy course now commenced with introductions to logic and the history of philosophy, before moving on to the so-called ‘fundamental’ disciplines of ethics, politics and economics.⁶¹ The law degree similarly now began with introductory lectures on the history of philosophy and natural law, before progressing to the detailed study of Roman, canon and German constitutional law. Here there was a particular weighting towards the latter which involved the study of German constitutional history as much as law, marking a real departure from accepted academic practice, which did not devote separate consideration to German law outside its study of Roman civil law. Thomasius’ courses stressed the distinctive development of German customary law outside the Roman dispensation, while still stressing its conformity with the modern concept of natural law founded on sociability. This approach was soon to be adopted generally among law faculties in Germany.⁶² The inclusion of the history of philosophy as an introductory course at Halle soon produced a crop of small introductory textbooks to perform this function in those universities, such as Jena, where Thomasius’ work was first admired and imitated. Typical of this type of ⁶⁰ C. Thomasius, ‘Von Nachahmung der Franzosen’ (), in Deutsche Literaturdenkmale des  und  Jahrhunderts, , Neue Folge , ed. A. Stauer (Stuttgart, ), pp. –. The subject is also fully discussed in C. Thomasius, ‘Von der Ma¨ ngeln der heutigen Academien’, Kleine Teutsche Schriften, passim and esp. p. . ⁶¹ For details of these courses, see Paulsen, Geschichte des gelehrten Unterrichts, I, pp. –. For a full examination in general terms of Thomasius’ work at Halle see W. Schrader, Geschichte der Friedrichs-Universita¨ t zu Halle, vol. I (Berlin, ), chs.  and . ⁶² On this issue see W. Bienert, Der Anbruch der christlichen deutschen Neuzeit dargestellt an Wissenschaft und Glauben des Christian Thomasius (Halle, ), pp. –; E. Landsberg, part III() of Geschichte der deutschen Rechtswissenschaft (Munich and Leipzig, ), pp. –. The most important of his later writings constituted an exhaustive attempt to mark out a body of German civil and criminal law distinct from the Justinian Code and the Pandects, which orthodox lawyers claimed as the source of German customary law. His first effort in this direction was ‘Delineatio historiae iuris civilis Romani et Germanici’, published as an appendix to an edition of F. Hotman, Antitribonianus (Halle, ). This was supplemented by a collection of important documents relating to German feudal law: Selecta Feudalia Thomasiana (Halle, ). But his most substantial essay in this direction was published as a series of commentaries on the Institutiones and Pandects in order to demonstrate the independent development of German civil law: Notae ad singulos Institutionum et Pandectarum titulos (Halle, ). His general stance is characterised by an emphasis upon the importance of studying the historical reception and transmission of legislation as much as its pure ‘black letter’ content: see C. Thomasius, ‘Programmata de lectionibus publicis ad Pandectas’ () in Programmata Thomasiana et alia scripta similiora breviora coniunctim edita (Halle and Leipzig, ), p. .

Christian Thomasius

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work is the Introductio praeliminaris in historiam philosophicam of Ephraim Gerhard. Among the reasons alleged for the utility of the history of philosophy include the ability it confers to shine in conversation, the capacity to distinguish ancient philosophy from patristic borrowings, a better sense of the origins of early sources of legislation, and finally the eclectic point that it offered a better understanding of philosophy itself. This diverse set of utilities reflected the variety of social and academic functions that Thomasius believed the history of philosophy assisted.⁶³                                        With eclectic reform achieved in both theoretical outline and institutional fact it may be supposed that Thomasius’ intellectual development was complete. However, this equipoise was only temporary. Indeed, Thomasius experienced a protracted intellectual crisis in the decade after , when he lost confidence not only in eclecticism as a philosophical method, but also in the creative powers of human reason as such. This crisis was caused essentially by his realisation in  that he had not in fact sufficiently protected his ethical system against the criticism of voluntarism, the charge most damagingly levelled against Pufendorf, above all by Leibniz.⁶⁴ In his Einleitung zu der Sitten-Lehre (Introduction to the Theory of Morals), () he had confidently restated his view that social instinct combines with rational calculation to produce a universally shared Vernu¨ nftige Liebe which allows man to transcend the merely egoistic will of the individual, and paradoxically attain his individual goal of tranquillity of soul through the creation of a common will and social bond.⁶⁵ However, in works that culminate in the Ausu¨ bung der Sitten-Lehre (Practice of Moral Theory), (), Thomasius now insists that the will ⁶³ E. Gerhard, Introductio praeliminaris in historiam philosophicam (Jena, ), §§ vii, vii–xix, xx–xxii, xxviii. Thomasius himself returned to the history of philosophy in many of his later works, culminating in the largest single history of jurisprudence to be written: Paulo plenior Historia Juris Naturalis (). ⁶⁴ Leibniz had been a pupil of Christian Thomasius’ father, and does not appear to have crossed swords directly with the son. The only direct evidence of contact is provided by a minor exchange of letters documented in A. Heinekamp, ‘Der Briefwechsel zwischen Leibniz und Christian Thomasius’, Studia Leibnitiana,  (), pp. –. However, writing to the abbot of Loccum in , he was openly critical of Thomasius’ concept of Vernu¨ nftige Liebe: see Leibniz, Textes ine´dits, II, pp. –. It is also worth noting that Leibniz was widely considered to be jealous of potential rivals: Barbeyrac, for example, believed him to be full of ‘jealousy of others who distinguished themselves in the Republic of Letters’ (Meylan, Jean Barbeyrac (–), p. ). ⁶⁵ See C. Thomasius, Einleitung zu der Sitten-Lehre (Halle, ), pp. –.

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Natural Law Theories

is nevertheless of its essence evil. The will is seen as entirely the slave of Unvernu¨ nftige Liebe, or irrational passion, that promotes selfish desires for wealth, honour or pleasure (Geldgeiz, Ehrgeiz, Wollust). Human choice and actions in all circumstances result in sin, so that only the intervention of divine grace can rescue man from his moral helplessness. Clearly these two accounts are quite incompatible. In one theory the power of intellect is sufficient to show man how peace of mind is to be obtained; in the other the destructive power of the will is greater and capable of subverting all the best efforts of Verstand to provide the good for man.⁶⁶ In his Institutiones Thomasius had not been disturbed by the potential instability of his concept of Vernu¨ nftige Liebe, which contained the large assumption that the individual must appreciate the compelling need to sink his own desires within a generally agreed definition of the general good if he is to achieve any of his selfish ends. But if the most powerful human impulse is a love that cannot be governed through the understanding, then that impulse will have sufficient potential predominance to will its ends irrespective of reason’s dissent.⁶⁷ So Thomasius draws the conclusion that the will cannot be trumped by the understanding and operates on the world with no effective internal curbs; for the understanding is not equipped to discern the distinction between good and bad inclinations of the will.⁶⁸ As a result, human beings, although they may possess reliable knowledge of good and evil, may not be considered likely to employ this knowledge reliably or regularly to govern their actions. In recognising the extent of human inadequacy we must necessarily accept that God’s grace is an essential support of the light of nature.⁶⁹ If this is so, then the melancholy conclusion follows that moral philosophy can do no more than lead men back to reliance on theology in the field of ethics.⁷⁰ Ethics as a part of philosophy can only show man in what respects he is separated from the animals; it is scriptural revelation, and, where that is lacking, God’s grace, that provides the only secure guide to behaviour, both social and individual.⁷¹ It would be simplistic to attribute this ethical pessimism entirely to the influence of pietism. Certainly, Thomasius’ personal links with leading pietists were strong; and both he and Pufendorf approved of its focus on ⁶⁶ A full discussion of the Ausu¨ bung der Sitten-Lehre within Thomasius’ output is to be found in Bienert, Der Anbruch der christlichen deutschen Neuzeit, pp. –. ⁶⁷ See C. Thomasius, ‘Dissertatio ad Petri Poireti libros de Eruditione solida, superficaria et falsa’ (), Programmata Thomasiana, p. . ⁶⁸ See C. Thomasius, Ausu¨ bung der Sitten-Lehre (Hildesheim, ) (reprint of  edition), p. . ⁶⁹ See ibid., p. . ⁷⁰ See ibid., p. . ⁷¹ See ibid., pp. –.

Christian Thomasius

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the laity and on the efficacy of good works. But there is little evidence to show that he was interested in its mysticism for long.⁷² In the years after  Thomasius did share the pietist concern to emphasise the corruption of the world and the wholly fallen nature of man; but he never went so far as to endorse either the pietists’ rejection of the sinful secular world or their ascetic desire to extend and pursue insight into the divine mind to the exclusion of participation in and reflection on the circumstances of ordinary political and social existence. His discontents were entirely and narrowly ethical, stemming from his questioning of the adequacy of man’s natural powers to lead a virtuous life.⁷³ The first sign of an end to this period of crisis came in an essay of , entitled ‘Natura hominis, libertas voluntatis, imputatio in poenam’ (The nature of man, free will, and culpability). The argument of this piece is wholly Hobbesian in its insistence that the will may be compelled to obey both reason’s dictates and political norms, but only through fear of punishment: ‘It seems that all human free will can finally be reduced to freedom and judgement based on fear, and that this alone therefore is the basis of all penal culpability’.⁷⁴ The will is capable of recognising a greater from a lesser evil, and in every case will see the threat of punishment as sufficient to prevent any internal psychological predominance of desire over reason culminating in a corresponding action.⁷⁵ This prudential doctrine forms the basis of the revised account of natural law theory given in Thomasius’ Fundamenta Juris Naturae et Gentium (Foundations of the Law of Nature and Nations) (). In this book Thomasius abandons any attempt to construct a metaphysical account of natural law, and capitulates to the view that all natural law must be derived solely from human psychology. Sociability’s role is taken instead by pure eudaimonism: all man’s actions are determined by his quest for happiness. Men can be constrained to act virtuously through a combination of fear and hope – fear that punishment will ⁷² He only produced one work in this mystical vein: Versuch vom Wesen des Geistes (Halle, ). Among the pietist leaders Thomasius’ closest links were with A. H. Francke, his colleague at Halle, who shared his practical interest in the reform of the curricula of higher and lower education in Germany. See Bienert, Der Anbruch der christlichen deutschen Neuzeit, pp. –. Pufendorf’s testimony on pietism is found in Pufendorf, ‘Briefe von Pufendorf’, p. , Pufendorf to Adam Rechenberg ( July ) (Pufendorf, Briefwechsel, pp. –). ⁷³ See C. Thomasius, Ausu¨ bung der Vernunft-Lehre (Halle, ), p. . ⁷⁴ C. Thomasius, ‘Natura hominis, Libertas voluntatis, Imputatio in poenam’, in Observationes selectae ad rem litterariam spectantes, ed. C. Thomasius, J. F. Buddeus and G. E. Stahl, vol. II (Halle, ), p. . ⁷⁵ See ibid.



Natural Law Theories

bring unhappiness, and hope that through the general practice of political virtue, they, as individuals, will become happier.⁷⁶ Such a theory seems on the surface to be a total surrender to the famous criticism of Leibniz that the whole of the modern natural law tradition had built its case on the power of a superior – whether God or man – to compel obedience through fear of punishment by the superior’s greater power. But Thomasius hopes to extricate himself from this difficulty by severing the connection made in his earlier theory between natural law and positive law. He distinguishes sharply between the kinds of obligation imposed upon a man by natural law and positive law: positive law or lex is expressed in the form of imperia or direct commands, disobedience to which will incur discrete punishment. But natural law, in contrast, provides men only with consilia, or recommendations, which are presented in psychological form as the preferences of Verstand, i.e. the light of reason, working upon sense experience. Lex applies external obligation, while jus naturalis exercises internal control, if man chooses to adhere to it. It is because man’s will so often chooses to ignore the consilia of natural law that the external sanctions of lex are necessary. This, believes Thomasius, is the proper distinction between the spheres of justum and honestum, between the roles of justice and morality. If the scholastics and Pufendorf had seen the force of this necessary distinction, and separation of powers, then they would have avoided the snare of voluntarism, both human and divine.⁷⁷ Despite this startling divergence between the analysis offered in the Fundamenta and the Institutiones, there is a basic continuity of approach in the insistence that it is in scrupulous examination of the relevant principia cognoscendi that progress is to be made. It is the manner in which law manifests itself to the human mind that dictates the nature of that law. For if natural law is a human artefact, then ipso facto the way humans come to perceive it must dictate its substantive content: ‘The law of nature is learnt through reasoning by a mind at rest, while positive law ⁷⁶ For a full exposition of the argument of the Fundamenta, see Schneiders, Naturrecht und Liebesethik, pp. –. Thomasius’ ethical system culminates in an optimistic expectation that the happiness of individuals and of the whole of mankind could be reconciled. This unstable balance was to be collapsed into early forms of utilitarianism by some of his followers: see J. Hruschka, ‘The greatest happiness principle and other early German anticipations of utilitarian theory’, Utilitas,  (), pp. –. ⁷⁷ See C. Thomasius, Fundamenta Juris Naturae et Gentium ex sensu communi deducta (Halle, ), p. . Thomasius’ definition of honestum successfully combines the pietistic aspiration of Gemu¨ tsruhe with a calculation of the utilitarian good for the individual which is wholly secular. Such a striking concept would not have been accessible to Thomasius before his successive exposure to and rejection of both Aristotelianism and pietism which pushed his political thought in more radical directions, removing its religious presuppositions: see Hammerstein, Jus und Historie, p. .

Christian Thomasius



requires revelation and proclamation’.⁷⁸ Nor does this represent a return to divine voluntarism: for if natural law may only recommend virtue instead of compelling it, God’s role is more that of a teacher than a ruler: ‘Natural law and divine law relate more to recommendations than to commands’.⁷⁹ The escape from the voluntarist trap thus involves downgrading the significance of natural law itself to a ground of conscience (principia honesti), and proportionately promoting the importance of the study of the positive law of individual nations (principia justi). Thomasius argues that natural law should inform the creation of positive law, since the promptings of Verstand are worthy of respect. But he does not now argue, as Grotius and Pufendorf had done, that natural law actually does affect, or has affected the creation of lex gentium: the essential unity of the two is broken, and the explanatory power of natural law theory is significantly restricted and delimited. The relevance of natural jurisprudence to the world of positive law was irrevocably weakened in order once and for all to save the tradition from the contradictions of voluntarism in which its founders had remained inextricably ensnared. Law and ethics are, as disciplines, sundered.⁸⁰ If there are indeed two forms of law common to human experience, then there must be two corresponding psychological needs upon which they attend. Thomasius locates these in the human requirement for internal as much as external contentment. To satisfy both these it is necessary for men to observe three principles in their moral conduct, which Thomasius summarises as the principles of justum, honestum and decorum. Justum enjoins, as we have seen, obedience to positive law in order that external peace may be kept between men; honestum comprises the guidance offered through natural law which is sufficient to yield inner contentment to mankind; and decorum consists in recognition that we must do to others what we would wish them to do to us. For not only do our external actions need to conform to positive law as a minimum condition of our outer happiness, but also it is an essential condition of our internal well-being that those actions receive the approval and commendation of other people.⁸¹ ⁷⁸ Ibid., p. . ⁷⁹ See ibid., p. . ⁸⁰ This distinction between the law of nature and nations was to be most fully developed by Vattel, whose concept of international relations envisaged a droit des gens ne´cessaire operating alongside a droit des gens volontaire. For a discussion of how a political jus externum may be added to the moral jus internum, see R. Koselleck, Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society (Oxford, New York and Hamburg, ), ch. , pp. –. ⁸¹ Thomasius, Fundamenta, p. .

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Natural Law Theories

In each case the watch words of honestum, justum and decorum are extrapolated from the golden rule of Jesus Christ ‘Do unto others as you would have them do unto you’ and as result of this procedure virtue is conflated with happiness.⁸² To act virtuously towards one’s neighbour is a rationally correct course of action because it simultaneously furthers the individual happiness of the agent which cannot otherwise be advanced.⁸³ All ethical norms ultimately derive from a close study of human psychology on the individual and social planes, rather than from metaphysical absolutes and scriptural evidence. And therefore Thomasius is once more able to present natural law as a solely human artefact distinct from divine institution. For as a result of renewed close scrutiny of its principia cognoscendi he has obtained what had eluded his predecessors, a clear and consistently secular taxonomy of its scope and aims within the practical moral life of men. Natural law may now be defined in two senses, one broad and the other narrow: in the wider sense it may be taken to mean the whole area of philosophical reflection on ethical matters that takes human reason as its starting point. But more narrowly it may be defined as the study of the principles that should underpin any given system of positive law (principia justi); and in this respect it is to be distinguished from the study of politics, which is derived from principia decori, and the philosopher’s pursuit of ethics, principia honesti.⁸⁴ Each of these subdivisions is, of course, strictly extrapolated from the the three cardinal features necessary to the happiness of the individual man and citizen. Principia justi concern the actions needed to preserve the individual’s external safety in ⁸² Ibid., p. . ⁸³ His system therefore culminates in the form of utilitarianism that was famously characterised by J. S. Mill: ‘In the golden rule of Jesus of Nazareth, we read the complete spirit of the ethics of utility, To do as you would be done by, and to love your neighbour as yourself, constitute the ideal perfection of utilitarian morality. As the means of making the nearest approach to this ideal, utility would enjoin, first, that laws and social arrangements should place the happiness, or (as speaking practically it may be called) the interest, of every individual, as nearly as possible in harmony with the interest of the whole; and secondly, that education and opinion, which have so vast a power over human character, should so use that power to establish in the mind of every individual an indissoluble association between his own happiness and the good of the whole; especially between his own happiness and the practice of such codes of conduct, negative and positive, as regard for the universal happiness prescribes, so that not only may he be unable to conceive the possibility of happineess to himself, consistently with conduct opposed to the general good, but also that a direct impulse to promote the general good may be in every individual one of the habitual motives of action, and the sentiments connectecd therewith may fill a large and prominent place in every human being’s sentient existence’ ( J. S. Mill, Utilitarianism, Liberty and Representative Government, ed. A. D. Lindsay (London, ), p. ). For an examination of the relationship between Thomasian natural law and utilitarianism see Hruschka, ‘The greatest happiness principle’, esp. pp. –. ⁸⁴ Thomasius, Fundamenta, p. .

Christian Thomasius



society, and from them are traced the provisions of positive law in the law of nations. Principia honesti concern the private speculations of the individual that are required for that individual to attain inner contentment, and out of this activity arises eventually the speculative philosophical study of ethics. Principia decori denote the strategies employed and devised by individuals to gain the approval and assent of others to their actions and proposals, and from this social practice eventually emerges the science and activity of politics. In this typology it is most important to note how although there is a link between natural law and the actual law of nations, it is largely theoretical and no longer strictly normative.⁸⁵ Thomasius argues that natural law should inform the creation of positive law, since the promptings of Verstand are worthy of respect. But he does not now argue, as Grotius and Pufendorf had done, that natural law actually does affect, or has affected the creation of lex gentium: the explanatory power of natural law theory is significantly restricted and delimited, a fact which is implicitly recognised by Thomasius in his decision to write separate histories of natural law and German civil law for the use of his students at Halle. Once a discipline has a discrete history that can be understood in separation from another, then the links between the disciplines must be slight indeed. But there were more substantial reasons to explain why Thomasius gave his attention to historiography in the later part of his career, and to these we must now turn.              ‘            ’ As we have seen, Thomasius had always possessed an awareness of the relevance of juridical historiography to his pedagogic work at Halle, but his sense of the significance of history of law and ethics appeared only as a direct consequence of his rejection of pietism. For in addition to the revised theory of natural law presented in the Fundamenta, Thomasius had developed his earlier thesis that history and philosophy represented the zwei Lumina by which the mind is to be properly educated and trained. In a preface to a second edition of the works of Petrus Poiret, and in his edition of Grotius’ De Jure Belli, Thomasius revealed that his disillusion with pietism had stemmed from two sources: a thorough study of ecclesiastical history, which had demonstrated that mystical theology had as much of a history of sectarian dissension as moral ⁸⁵ Natural law becomes, in the words of Ru¨ ping, a mere goldene Hintergrund for positive law (Ru¨ ping, Die Naturrechtslehre des Christian Thomasius, p. ).

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Natural Law Theories

philosophy; and a reading of Locke’s Essay that had reassured him of the place and authority of the human intellect in academic work, as well as convincing him once more of the dangers of all forms of religious enthusiasm.⁸⁶ Thomasius dresses up these personal experiences as general lessons in line with his customary, self-consciously innovative presentation of himself as a new type of scholar unafraid to look for a different role for the author in a time of new and emerging literary genres. Indeed, on one level he proceeded to devote much of the remainder of his career to the writing of particular pieces of intellectual history stimulated by these early experiences of his own which might in turn guard students effectively against the prejudices of the learned and their inevitable sectarian conflicts.⁸⁷ He initiated this programme with a series of short, dogmatic essays summarising the subjects with which a student of jurisprudence should become acquainted in the course of his studies.⁸⁸ In much of this work he is concerned to emphasise how important a study of the history of ethics is to a future student of the law. To such a student history is vital as a means of determining the origin and progress of errors and false wisdom. It is, together with philosophy, one of the two Oculi sapientiae, whose combined operation allows men to distinguish between truth and falsehood.⁸⁹ Moreover, the history of philosophy has clear priority over the history of religion for a student of law, since it is broader in scope, and indeed encompasses the subject matter of ecclesiastical history: ⁸⁶ See the account given by Brucker in Historia Critica Philosophiae, V, p. , which draws upon Thomasius’ own versions in his prefaces both to the German edition of Grotius’ De Jure Belli ac Pacis and to his second edition of the works of Petrus Poiret. It is revealing that Thomasius’ admiration for Locke’s Essay focused on Locke’s discussion of religious enthusiasm; for elsewhere he criticises Locke for having inadequately distinguished the functions of Verstand and Wille, and prefers Le Clerc’s Logica as a more forthright exposition of the errors of both Aristotelian and Cartesian logic. ⁸⁷ He did not consider this humble work for ‘in all disciplines the history is half the basic principles which have to be established’ (Vorlesungs-Anku¨ ndigungen aus den Jahren – (Halle, –), p. ). For an analysis of the complex ways in which German writers such as Thomasius sought to integrate autobiographical interpellations into new genres of writing see H. Jaumann, ‘Fru¨ he Aufkla¨ rung als historische Kritik’, in Neumeister, Fru¨ haufkla¨ rung, pp. –. ⁸⁸ C. Thomasius, Ho¨chstnothige Cautelen welche ein Studiosus Juris, der sich Erlernung der Rechts-Gelahrheit auff eine kluge und geschicke Weise vorbereiten will zu beobachten hat (Halle, ). A Latin edition appeared in the same year. Brucker reviewed the Cautelen in the following terms: ‘with this propaedeutic tract he wished to fortify youth with the history and distinctive character of disciplines against common prejudices, and to set out the path by which they could avoid the quicksands into which he grieved that several had fallen’ (Brucker, Historia Critica Philosophiae, V, p. ). ⁸⁹ Thomasius, Cautelen, p. .

Christian Thomasius



The History of Philosophy is the history of the origin and development of human wisdom and folly seen in separation from divine revelation. From this [definition] it follows that it is in a certain respect broader than ecclesiastical history insofar as it also reveals the origin of errors in natural philosophy and civil prudence; it also follows that it is a necessary part of church history, insofar as it teaches the origin of false doctrines established in the state with uproar and injustice under the pretext of religion.⁹⁰

This distinction is reiterated in the introductory sections of his coyly titled, but large-scale ‘history of morality’, Paulo plenior Historia Juris Naturalis, where Thomasius maintains that the histories of natural law and divine jurisprudence should be considered in separation. Failure to observe this criterion had led to chronic confusion over the different types and sources of law so that as a result the accurate study of natural law in particular had been impaired until recent times.⁹¹ This confusion was but one aspect of humanity’s general inability to ascertain the scope of human and divine reason, the natural boundaries of lumen naturae and gratia. At the time of the Reformation Thomasius believed that a great opportunity to resolve these issues had been wasted: Luther’s detestation of Aristotelianism would have been sufficient to induce reform had not Melanchthon’s confusion of the realms of theology and philosophy resulted in a fresh integration of Aristotelian philosophy with moral theology. Since then only Grotius and Pufendorf had succeeded in rightly identifying the subject matter of natural law and moral theology; but even their work was incomplete, for Grotius had retained many scholastic elements in his theory, and Pufendorf had been distressingly oblique in his focus of attack. It was only Thomasius himself who had clearly set the boundaries of the study by devoting his Institutiones to the articulation of what had been implicit in the other two. In so doing he felt that he had satisfactorily resolved the balance between lumen naturae and gratia in jurisprudence; for the issue of the zwei Lumina was essentially one of setting the boundary lines between the different components of human wisdom: And moreover that distinction between natural and supernatural insight [lumen naturalis et supernaturalis] at the same time contains the simple and clear distinction between theology and philosophy or human wisdom; or even between theology and the other three academic faculties. For theology explains the doctrine of supernatural insight, while on the other hand Jurisprudence, Medicine and Philosophy, strictly defined, derive their beliefs from natural insight.⁹² ⁹⁰ C. Thomasius, Cautelae circa Praecognita Jurisprudentiae Ecclesiasticae (Halle, ), p. . ⁹¹ C. Thomasius, ‘praefatio’, Paulo plenior Historia Juris Naturalis, pp. –. ⁹² Ibid., p. .

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Natural Law Theories

Thomasius recalled that his first attempt to provide a ‘history of morality’ for his pupils in  consisted in a rough charta providing the main lines of development in the history of moral philosophy and divine jurisprudence. These brief notes had proved very popular with his students and he was urged to amplify them. He was prevented by pressure of other work and so delegated the task to one of his students, Jacobus Ludovicus (–), who proceeded to publish in  a thoroughly documented version of the original outline, which Thomasius himself was content to use as the basis for his regular course of lectures at Halle on the history of ethics. He only returned to the subject himself in  when requested to provide an introduction to the first German translation of Grotius’ De Jure Belli. He felt that the most appropriate introduction would be a ‘history of morality’ from earliest times up to the writings of Grotius himself, and so published a revised version of his Primae Lineae. For the first time he connected up the theory of knowledge and account of eclecticism outlined in the Einleitung zu der Vernunft-Lehre and Introductio ad Philosophiam Aulicam with the post-Renaissance history of natural law. This work prompted him to lecture over the next few years in greater detail on the development of natural law theory by Pufendorf and Thomasius himself. The Paulo plenior therefore consisted of a combination of these two histories together with some expansions to incorporate the material collated by Ludovicus.⁹³ As a history it is distinguished by its implicit claims to be a complete secular, independent intellectual history of its subject, rather than by its divergence from the canon or content initiated by Pufendorf and detailed by Barbeyrac. The major subdivisions of the text are similar to those employed by Pufendorf in his ‘De Origine’: a section centred on ethical theory down to the birth of Christ, which records the relative neglect of jurisprudence by the Greeks; a chapter taking the narrative up to the early Middle Ages which relies heavily on Barbeyrac’s attack on patristic moral theory; a discussion of the opportunities missed at the time of religious Reformation in Germany; and finally, long sections describing the nature and impact of the work of Grotius and Pufendorf. Throughout this account there is an overarching interpretation drawn from Thomasius’ own moral theory that links his remarks about each period of ethical writing, and which is absent from Barbeyrac’s version. Thomasius asserts that the failure of successive philosophers to separate out the sources and types of law in the world is not a failure of ⁹³ Ibid., pp. –.

Christian Thomasius



intellect but of will, just as he argued in general terms that dissent over the nature of good and evil arose from the clouding of intellect by contradictory and selfish human desires. Repeatedly he emphasises that the intellectual means existed for thinkers to achieve the insights finally gained in recent times, but that they did not seize the opportunity. The lumen naturae was blurred by sectarian tendencies so that the intellect was used sophistically to support traditional and convenient hypotheses, rather than to explore the issues on their own terms. For this reason it is the Stoics among the philosophers of ancient Greece who approach nearest to a knowledge of the sources of jurisprudence, because their doctrine of sociability curbs the selfish will of men, replacing it with a concept of decorum or a sense of the obligations human beings must accord one another if their own desire for approbation is to be met.⁹⁴ Conversely, the patristic moralists are to be reproved for having persisted with a form of mystical Platonism that only served to confuse the two lumina at a time when they could have been separated; and likewise an opportunity was missed at the Reformation when the rival Protestant confessions allowed their disagreements over interpretation of Scripture to affect the scope they accorded to lumen naturae. Although the advent of Grotius could be interpreted as a piece of divine providence, Pufendorf’s hesitations (and his own) in revealing the full deviance of their modern theory of natural law from scholastic orthodoxy delayed the full acceptance of the separate spheres of reason and revelation, and could be construed as a failure to pursue unambiguously the course dictated by the intellect.⁹⁵ Nevertheless, for Thomasius, the ‘history of morality’ had been a progressive enterprise that had resulted in the definitive solution to a problem that had delayed the development of ethics into a science comparable to post-Renaissance natural philosophy. This had now been achieved under Thomasius himself. That it should be written up as a history gave the enterprise a certain impersonal cachet necessary to give it external credibility; but judging from the interesting preface provided by Ludovicus to his Delineatio, and other discussions by Thomasius of the modern role of historiography, there were larger issues at stake than this. Ludovicus argues that too much history is written by mere eruditi, who specialise in the dull recitation of facts about wars and treaties at the ⁹⁴ Ibid., p. . ⁹⁵ Ibid., pp. –, greatly expanding upon the original but similar argument of Primae Lineae Historiae Juris Naturalis, the draft of .

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Natural Law Theories

expense of any proper judgement and interpretation – indeed, ‘the learned man who lacks judgement has no more use, truth or value than a wooden sword’.⁹⁶ Much more attention should be given to Historia Litteraria, by which Ludovicus essentially means what would now be called cultural history. For this is the common element to all intellectual inquiry in the humanities: theologians have to take ecclesiastical history into account if they are to perform their task adequately; likewise jurists need to know the full political and ideological background to the legislation that they are analysing. Horn and Vossius have made considerable progress with the history of philosophy, but no moves have been taken to improve understanding of the history of law, and in this area Ludovicus believes he has a contribution to make through his ‘history of morality’.⁹⁷ Thomasius himself, in his Cautelen, takes the argument further by suggesting that the close links of philosophy and history follow on directly and necessarily from the nature of human knowledge. He proceeds now to link his epistemology of modified empiricism much more closely with the remarks on history that he had tentatively developed in the Einleitung zu der Vernunft-Lehre. As before, he argues that we can form no universals except through the meditation of the mind upon the detail of material existence communicated to the mind through the senses.⁹⁸ Yet we rely upon the information perceived and provided by other people as much as upon our own sensations in the formation of general concepts. Given that no human being’s perception of the world is the same, we have to attempt to imagine the world from the perspective of another person before presenting our own view of it as definitive: ‘Likewise I have no complete understanding through external sensations unless I can in a way imagine the object as others have perceived and conceived it’.⁹⁹ While philosophy is concerned with the application of reason to one’s own perception of the world, history is the main source of knowledge about the world external to the individual, and therefore is crucial to the individual’s ability to generalise plausibly about that world. For this reason history and philosophy have to be considered interdependent pursuits: In history one encounters nothing but external impressions, while philosophy reasons by deduction independent of external impressions. But external impressions are very relevant to the theory of wisdom, partly because they come to ⁹⁶ J. F. Ludovicus, ‘Praefatio’, Delineatio Historiae Juris divini naturalis et positivi universalis (Halle, ), p.  (unnumbered). ⁹⁷ Ibid., pp. –. ⁹⁸ Thomasius, Cautelen, p. . ⁹⁹ Ibid., p. .

Christian Thomasius

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the assistance of the imperfection and inadequacy of one’s own reasoning, and partly because they contribute substantially to the improvement of one’s own existence.¹⁰⁰

Nowhere is this relationship better exemplified than in the case of the legal mentality, which relies upon a combination of philosophical and historical argument, for ‘legal thought is to a certain extent a form of philosophical and historical thought’.¹⁰¹ For a full understanding of the development of moral norms within any society requires acquaintance with the history of moral philosophy, the development of positive law itself, and of the relevant ecclesiastical and national politics behind that process. Without this interpenetration of causal explanations, human reason is ineffectual, misleading and partial: ‘Man will never be freed from prejudices if he does not recognise the origin of prejudices through the help of history’.¹⁰² For Thomasius, the study of history is essential if philosophical error is to be identified and avoided. Indeed, it is not too much to say that to be an eclectic philosopher requires a grounding in history first of all.                 :                    If one looks for the influence of Christian Thomasius in ethics then one has to look on the institutional level, at university teachers of ethics in the thirty years after his death, and not so much at the professions or at court culture towards which Thomasius himself had directed his books in this field.¹⁰³ In particular one needs to look at those individuals who themselves wrote ‘histories of morality’ and attempted to pursue eclectic philosophy on Thomasius’ model. It should be stressed that those two categories do not necessarily overlap because while the ‘history of morality’ became a pedagogic commonplace, built into so many university syllabi as a prolegomenon to philosophy, not all the authors of those works called themselves eclectics.¹⁰⁴ Of Thomasius’ pupils, only Buddeus and Heineccius performed both roles, and this largely because they resisted the systematic implications for ethics of the rationalism of ¹⁰⁰ Ibid. ¹⁰¹ Ibid., p. . ¹⁰² Ibid., p. . ¹⁰³ Recent German historiography on the impact of Thomasius has perhaps concentrated too much on his role in the pre-history of cameralism and not accorded sufficient weight to his pre-eminence in much university teaching of ethics in the thirty years after his death, e.g. J. Bru¨ ckner, Staatswissenschaften, Kameralismus, und Naturrecht (Munich, ). ¹⁰⁴ For example, the new law faculty at Go¨ ttingen, which was paradigmatic of German universities in the eighteenth century, took over the three-year law course from Halle that opened with a course on the history of philosophy.



Natural Law Theories

Christian Wolff. While Wolff’s system left room for and in some ways required the study of the history of philosophy, it was decisively antieclectic. It was possible for the institutionalised ‘history of morality’ to persist, but not the methodology that had produced it. Nowhere is this more clearly revealed than in the so-called eclectic history of Brucker, which in its concept of the task of philosophy is much closer to Wolff than to Thomasius, but retains within its historiographical framework Thomasius’ account of the history of Weisheit und Torheit. It is perhaps difficult to talk of the heirs of Thomasius. His intellectual interests and contributions were so varied and diffuse that no one group or individual could be said to have persisted with even a few elements of his legacy. His polemical success and pedagogical prowess simultaneously attracted attention to him personally, while distracting from the nature of his achievements.¹⁰⁵ Moreover, his friend and closest follower, N. H. Gundling (–), stressed that Thomasius went out of his way to give his pupils independence, rather than insisting on a unified approach: ‘He did not wish to rule alone on Mt Parnassus, allowing each [pupil] his freedom to form opinions as he wished and to write what he desired’.¹⁰⁶ It has been suggested recently that the successors of Thomasius followed up his work in three areas: the theoretical separation of law and ethics, practical philosophy, and reform of criminal law.¹⁰⁷ Here the emphasis will lie on those writers who followed up his work on the history of law, and the history of ethics. It should immediately be stressed that it was thanks to Gundling’s reaffirmation of the separation between law and ethics, justum and honestum, that these studies pursued distinct paths: we have already seen how the later Thomasius of the Fundamenta distinguished positive and natural law both logically and in terms of the methods appropriate to their study; but it was Gundling who ensured that this remained a fixed point of doctrine within the ‘school’ of Thomasius. He insisted that the ¹⁰⁵ Although it should be noted that there was general recognition within Germany of Thomasius’ key role in throwing off the scholastic yoke from the university system. See, for instance, J. C. Spener, Teutsches Jus Publicum oder des Heiligen Ro¨misch-Teutschen Reichs vollsta¨ ndige Staats-Rechts-Lehre (Frankfurt/Main and Leipzig, ), cap. , p. ; J. C. Dithmarus (ed.), Tacitus, De Situ, Moribus et Populis Germaniae Libellus, ‘Praefatio’ (Frankfurt/Oder, ); C. M. Pffaf, Oratio Inauguralis de Universitatibus Scholasticis emendandis et paedentismo literario ex iisdem eliminando (Tu¨ bingen, ). ¹⁰⁶ N. H. Gundling, Effertur funus illustris viri Christiani Thomasii (Halle, ), p. . Nicolaus Hieronymus Gundling was a colleague of Thomasius’ at Halle from  (see Allgemeine Deutsche Biographie, vol. X, pp. –) ¹⁰⁷ H. Ru¨ ping, ‘Thomasius und seine Schu¨ ler im brandenburgischer Staat’, in Thieme, Humanismus und Naturrecht in Berlin-Brandenburg-Preussen, p. .

Christian Thomasius



tripartite Thomasian distinction of justum, honestum and decorum could only be considered as a relevant description of obligations within ethical theory. The source of obligation in a legal system must, on the other hand, be external complusion: no system of positive law can work on other assumptions, a fact which is confirmed by the study of legal history.¹⁰⁸ Thomasius’ work on German Staatsrecht was ably continued by Gundling and J. P. von Ludewig (–), another younger colleague at Halle, both of whom shared his belief that the study of Roman law and German customary law could be pursued in tandem.¹⁰⁹ Although neither man wrote a historical account of natural law, their understanding of the relationship between history and law was identical with that of those who did.¹¹⁰ They were clear that indeed no history could be undertaken unless the author were aware of the close links that existed between history and philosophica practica: ‘[who] has good sense, knows how to write moral philosophy and natural law, is certainly able to write history whether he is a theologian or a doctor’.¹¹¹ Both men wrote works of Reichshistorie that sought to trace the origins of German law in the period before Charlemagne, the development of a political community over time, and the emergence of a conflict of authority between the regions and estates on the one hand and central authority on the other. Although their sense of periodisation is often guided more by dynastic dynamics than historical analysis, at times they attempted to relate events to social structure and economic history in a way that anticipates the Osnabru¨ ck history of Justus Mo¨ ser.¹¹² This new tendency to seek an overall direction and motivation in history, as opposed to a mere ¹⁰⁸ Gundling’s views are presented in his Jurisprudentia Naturalis (Halle, ), and are well summarised in ibid., pp. –, and in H. L. Schreiber, Der Begriff der Rechtspflicht (Bonn, ), pp. ff. This simplification of the distinction drawn between ‘broad’ and ‘narrow’ natural law to a contrast between external constraint and an internalised sense of duty is consequential for the relation of Kant to the natural law tradition, since it passes directly from Gundling to his pupil G. Achenwall, whose textbook Kant employs in his pre-Critical lectures. See the discussion of C. A. Heumann, infra, for further discussion of the development of Thomasius’ original insight. ¹⁰⁹ Both men were a generation younger than Thomasius, but professors in the law faculty at Halle for the last twenty years of his life. A contemporary assessment of their position as joint heirs of Thomasius’ work in Staatsrecht is given in J. S. Pu¨ tter, Literatur des Teutschen Staatsrechts, vol. I, Neudruck (Frankfurt/Main, ), p. . An excellent modern survey of both these figures is found in Hammerstein, Jus und Historie, chs.  and . ¹¹⁰ Gundling began a ‘history of morality’ but only published the first part which was devoted to ancient and oriental ethics: N. H. Gundling, Historia Philosophiae Moralis. Pars Prima (Halle, ). ¹¹¹ N. H. Gundling, Ausfu¨ hrlicher und vollsta¨ ndiger Discours u¨ ber dessen Abriss einer rechten Reichs-Historie (Frankfurt/Main and Leipzig, ), Prolegomena, §, p. . ¹¹² For the longer-term significance of these writers and Mo¨ ser’s debt to them see J. B. Knudsen, Justus Mo¨ser and the German Enlightenment (Cambridge ), pp. –.



Natural Law Theories

explanation of individual incidents, may be attributed to their grounding in eclecticism.¹¹³ Likewise, when the university of Go¨ ttingen was founded in , eclecticism proved to be the dominant intellectual ethos because the Kurator, G. A. von Mu¨ nchhausen, himself a pupil of Gundling, ensured that scholars in the Thomasian tradition, with juridico-historical interests, were appointed to the law and philosophy faculties.¹¹⁴ Of these figures, C. A. Heumann (–), J. J. Schmauss (–), and G. Achenwall (–) deserve some extended comment. While the Go¨ ttingen school of ‘philosophical’ history is generally credited with having significantly advanced the study of historical hermeneutics, it has not been sufficiently appreciated that the roots of this attempt to identify meta-historical movements originated in the eclectic approach that the early Go¨ ttingen historians brought with them from Halle.¹¹⁵ Heumann has not been given much coverage in German accounts of the early development of the university of Go¨ ttingen; but it may be claimed that his publications had as much impact in the literary world as a whole as those of any of the other professors of that first generation.¹¹⁶ His most notable work was as author and editor of the Acta Philosophorum, a periodical that surveyed aspects of the history of philosophy from an eclectic point of view. This work was influential on Brucker and will be considered more fully in relation to him. However, his first claim on our attention is as a contributor in his own right to the development of the ¹¹³ Their perception of their task is well summarised by another contemporary imperial historian in J. J. Schmauss, Kurzter Begriff der Reichshistorie (Leipzig, ), p.  (trans. in ibid., p. ): ‘The business of war and peace, spiritual and worldly matters, and in a word, everything which makes its appearance in history have their movement, drive and motivation. Whoever isolates these matters one from another wrests the true causes from the narrative; and where these are lacking, history lacks soul and life.’ ¹¹⁴ For the influence of Halle upon Mu¨ nchhausen in particular, and Go¨ ttingen in general see E. F. Ro¨ ssler, Die Gru¨ ndung der Universita¨ t Go¨ttingen (Go¨ ttingen, ), pp. – and . The best recent description of the innovations in teaching practice and research at the Georgia-Augusta is given in Oz-Salzberger, Translating the Enlightenment, esp. ch. ; see also McClelland, State, Society and University in Germany, pp. –. The importance of Thomasian innovations in the early years of ¨ ber Go¨ ttingens ersten Go¨ ttingen is brought out in K. Cramer, ‘Die Stunde der Philosophie. U Philosophen und die philosophische Theorielage der Gru¨ ndungszeit’, Zur geistigen Situation der Zeit der Go¨ttinger Universita¨ tsgru¨ ndung . Eine Vortragsreihe aus Anlass des ja¨ hrigen Bestehens der Georgia Augusta, ed. J. von Stackelberg (Go¨ ttingen, ), pp. –. ¹¹⁵ For an assessment of the contribution of an early Go¨ ttingen professor to historical hermeneutics see P. H. Reill, ‘History and hermeneutics: the thought of Johann Christoph Gatterer’, Journal of Modern History,  (), pp. –. ¹¹⁶ Heumann receives scant mention in the early work of J. S. Pu¨ tter, Versuch einer academischen Gelehrtengeschichte von der Georg-Augustus Universita¨ t zu Go¨ttingen,  vols. (Go¨ ttingen, ), where only the titles of his works are listed on pp. –, and only a passing reference in the more recent book of G. von Selle, Die Georg-August Universita¨ t zu Go¨ttingen – (Go¨ ttingen, ), p. .

Christian Thomasius



Thomasian distinction between a ‘broad’ and ‘narrow’ understanding of natural law. As has been noted above, it was the achievement of Gundling to formalise the boundaries of academic study suggested by Thomasius’ original theoretical distinction between justum and honestum. However, in the crucial discussion in his Jurisprudentia Naturalis () he quite clearly bases his argument upon an article by Heumann published in the previous year in an older Leipzig-based periodical, the Acta Eruditorum.¹¹⁷ In this article Heumann had set out to demonstrate exactly what the full consequences were of an acceptance that natural law had to be considered an ambiguous and shifting category within jurisprudential terminology. He grants initially that the separation of the requirements of an ideal world should be distinguished from those of the actual world where one could with some precision define a set of minimal moral requirements for the survival of that world. By following these promulgations of positive law a man avoids wrong-doing, but his course is more laudable if he is able to follow the dictates of natural law as perceived by his conscience: Justum therefore is what either must be done to preserve nature or at least does not destroy it: honestum is that by which nature is perfected. From this it follows that the man who pursues justum does not sin, but acts well; while the man who follows the course of honestum acts better and deserves more praise.¹¹⁸

But this is tantamount to saying that there should be two sorts of natural law, one carrying with it an absolute obligation, and the other accompanied by only a hypothetical obligation which it is beyond the power of positive law to enforce. In this latter sense hypothetical natural law can only have a real purchase on men’s minds to compensate for its imperfect obligation if it is instantiated by long experience of cultura animi: From the character of honestum as it has been studied up to this point, it can also be known that honestum depends on cultura animi, and that it needs time, and cannot be obtained through the force or compulsion of positive laws, but by each individual’s own diligence, which is excited by the examples of others and the encouragements of friends.¹¹⁹

But even granting this, it is still not possible to retain a unified concept of natural law since it is rare that human actions will find approval as ¹¹⁷ The relevant discussion is at N. H. Gundling, Jurisprudentia Naturalis (Halle, ), p. . The source is C. A. Heumann, ‘De distinctione iuris naturalis in absolutum et hypotheticum, item de discrimine iusti, honesti, aequi et decoris’, Actorum Eruditorum quae Lipsiae publicantur, Supplementa (), tomus IV, pp. –. ¹¹⁸ Ibid., p. . ¹¹⁹ Ibid., p. .



Natural Law Theories

both justum and honestum. One comes back to the view, here attributed to Grotius, that any notion of justice must be understood to have both an external normative component and and internal ground of conscience that are complementary, but not identical: Finally this is also called justum, which if I undertake it, cannot be complained about (except in the case of an injury inflicted upon oneself ), although it is in itself repugnant to divine will. In this sense, for example, it is justum to take revenge on an enemy, to kill hostages etc., but not honestum. The following argument of the jurisconsults is relevant here: ‘not everything that is lawful is honestum’. This latter distinction is the same as the one adopted by Grotius, who divided justice into internal and external spheres.¹²⁰

This position, of course, fully unravelled the original assimilation that Pufendorf had proposed between the law of nature and the law of nations and cast doubt upon Grotius’ post-sceptical observation, the starting point of modern natural law, that underlying the diversity of human positive law can be seen basic sociality from which all systems of positive law can be shown to have been historically derived. For these reasons, when Heumann gave his considered view on the ‘history of morality’ in his Conspectus Reipublicae Litterariae (), he adopted a more circumspect and qualified approval of his predecessor than we have observed so far in contributors to this genre. Grotius is given credit as the initiator of the discourse, but is also criticised as still wedded to scholasticism.¹²¹ Pufendorf is similarly downgraded, not simply for mistaking the position of God in the scheme of things (which had been the essence of Leibniz’ criticism), but also for too easily assuming that natural law could be deduced from civil law (which had, in turn, been the main criticism of Vico, although from different premises): He did not altogether shake off the prejudices of the civil law, but by supposing that the nature of divine laws was the same as that of human law, by not taking full notice of natural penalties, and likewise excluding duties towards God and not following through several conclusions, he has sufficiently shown that he has not yet reached into the deepest recesses of this divine jurisprudence.¹²²

While Thomasius certainly deserved credit for having attempted to rectify the outstanding problems, his solutions presented his successors with fresh difficulties which threatened to break up the internal coherence of the natural law tradition altogether. Whereas some writers took ¹²⁰ Ibid., p. . ¹²¹ C. A. Heumann, Conspectus Reipublicae Litterariae sive Via ad Historiam Litterariam iuventuti studiosae aperta (Hanover, , th edn), §xli, p. . ¹²² Ibid., §xlii, p. .

Christian Thomasius



Thomasius as their guide, others preferred to return to Pufendorf: ‘Others who after Thomasius wrote on natural law partly followed in his tracks and partly in those of Pufendorf’.¹²³ For it was now no longer entirely clear what was the natural law tradition: some followed the older ‘broad’ notion of moral philosophy that took human reason as its touchstone; others pursued the ‘narrow’ notion of those principles that could be seen to underpin given systems of positive law, an approach that was essentially historical and non-metaphysical, but which led in the hands of later practitioners such as Vattel, to a conflation of lex naturae with lex gentium very much weighted in favour of the latter: for once lex naturae was limited to the study of human nature as it is rather than as it might be, the discipline quickly became merely a study of international relations as they are. J. J. Schmauss carried on this critique of the conflation of natural and positive law. In his view the human will and emotions precede reason as defining characteristics of human nature. Natural law involves the study of these primary drives and not the derivation of complicated syllogisms from an entirely abstract definition of human nature. It is positive law that is the product of reason, which is itself a development of man’s nature, a strategy by which relationships with the world as a whole may be constructed. The formation of a moral code involves the judgement of certain actions of men as good or bad and the redirection of certain drives and actions. It is through reason that this process is carried through; it is through the scrutiny of the emotions that one discovers what is natural to man. Thereby one finds out that natural law can indeed be contrary to morality.¹²⁴ These view are brought out in the course of his ‘Historie des Rechts der Natur’, which he wrote as a student textbook in . Both Pufendorf and the young Thomasius are strongly criticised for confusing positive and natural law. In Schmauss’ opinion the principle of sociability is only a generalisation drawn from the historical record of the positive law of nations, and cannot be employed as the deductive source of the content of natural law: Now Thomasius also followed him [Pufendorf ] in this, and all that has hitherto been written after them has been copied from these two authors by almost everyone without further reflection, so that wholly absurd concepts of natural law have been received; amongst others the whole of universal public law has ¹²³ Ibid., §xliii, p. . ¹²⁴ J. J. Schmauss, Vorstellung des wahren Begriffs von einem Recht der Natur (Go¨ ttingen, ), pp. –, , , –.



Natural Law Theories

been viewed erroneously as a part of natural law; and in all this the true natural law, which is innate in man, has been quite forgotten.¹²⁵

If one looks for philosophers who correctly identified the source of natural law in human nature, and a human nature that was not necessarily anchored in a social instinct at that, then the notable figures are Hobbes, who was, much more than Grotius, the first to break with scholastic moral theory, and the mature Thomasius in his Fundamenta.¹²⁶ Gottfried Achenwall is likewise important as writer of highly influential textbooks embodying this view of the relationship of law to ethics which became the central student texts at Go¨ ttingen in the middle decades of the eighteenth century. In his Ius Naturae, which went through seven editions before , he defines legal obligation in exactly the same terms as Thomasius had done in his later writings: legal obligation, which is brought about through fear of human compulsion, or by what man binds man to his fellows, is called external obligation (in the public human forum); however, what is produced by fear of divine punishment, or through what ties man to God, is called internal [obligation] (in the private, divine sphere of conscience).¹²⁷

So long as Achenwall and Schmauss and Feder dominated the faculties of law and philosophy in Go¨ ttingen the textbooks of Wolff received only occasional use in teaching there. Of all Thomasius’ pupils it was Johann Gottlieb Heineccius who exercised most influence upon intellectual life outside the north German Protestant universities, and largely as a result of his authorship of an influential textbook on natural law theory (later translated into English by the Scottish lawyer George Turnbull) together with applications of its axiomatic method to German and Roman law.¹²⁸ Heineccius was successively a professor of philosophy and law at Frankfurt an der Oder, Franeker and Halle. His textbooks were considered to carry particular weight because within them he appeared to have achieved a bridge between the principles of natural law and the detailed interpretation and organisation of Roman and German customary law that Thomasius had discussed but never fully followed through. His ‘axiomatic method’ sought to apply general legal principles from natural law ¹²⁵ J. J. Schmauss, ‘Historie des Rechts der Natur’, Neues Systema des Rechts der Natur (Go¨ ttingen, ), §xxvii, pp. –. ¹²⁶ Ibid., §xxiii, pp. –, and §xxxii, pp. –. ¹²⁷ G. Achenwall, Ius Naturae, vol. I (Go¨ ttingen, , th edn) p. . ¹²⁸ For details on his career and writings see Haakonssen, Natural Law and Moral Philosophy, pp. –. The key text edited by Turnbull originated as Elementa Iuris Naturae et Gentium (Halle, ).

Christian Thomasius



to identify patterns of interpretation in the history of the evolution of Roman and German legal texts. These works were widely admired for their formal coherence and also their historical sensitivity to the institutional context of German and Roman legal pronouncements.¹²⁹ Of all the followers of Thomasius it was Heineccius who for these reasons belied the provincial and local appeal of the remainder.¹³⁰ But in so doing Heineccius was in fact applying the eclectic method rather than devising a distinctive method of his own. His axiomatic method was not deductive but based on the core principles of Pufendorf’s natural law theory and a deep understanding of the relevant history of legal practice. It conforms to the model he sets himself elsewhere in his Anleitung zur Historie der Weltweisheit (Manual on the History of Philosophy), () in which he states that the eclectic method is the only rational method to follow in philosophy where truth is to be found not in relying either on one single text or a congeries of them, ancient or modern, but on a judicious selection and reconciliation.¹³¹ In a real sense Heineccius’ achievement was a final fulfilment and vindication of the method and application of Thomasius’ ‘practical philosophy’. Indeed, an indication of this standing is provided by the proposal at the time of his death in  that he succeed to the chair at Marburg vacated by Christian Wolff on his recall to Halle after the accession of Frederick II. ¹²⁹ An index of this esteem is the fact that his collected works were republished three times, and his main work on Roman law went through twenty editions. In the later part of his career at Halle Thomasius had published many collections of material on German civil and criminal law on the premise that it should be derived historically from customary law rather than the Justinian Code and Pandects. But he never in fact demonstrated the derivation of the either Roman or German law from basic principles of natural law, as Heineccius was to do. ¹³⁰ For the widespread use of his texts by Scottish academics and the eulogy accorded him by Edward Gibbon, see Haakonssen, Natural Law and Moral Philosophy, pp. –. ¹³¹ J. G. Heineccius, Anleitung zur Historie der Weltweisheit (Berlin, ), cap. IV ‘De Philosophia Medii Aevi et Nova’, §cxxii, p. .

 

Natural law theory and its historiography in the era of Christian Wolff

 .  .                                       Thomasius’ influence flowed as strongly, if more indirectly, through the next generation of pietist theologians at Halle and Jena, who had necessarily accepted Thomasian ethics as a subsidiary part of their education. Moreover, and crucially, they had also assumed Thomasius’ fundamental categorical separation of moral philosophy and theology as intellectual disciplines with distinct histories and methodologies. It was largely the work of J. F. Buddeus (–) to develop Thomasius’ writings in this particular direction. For Buddeus the modern natural law tradition was useful essentially for having provided a clear distinction between moral philosophy and moral theology. Pietists had held axiomatically that if Christian doctrine was ultimately grounded on faith and love then theology itself must similarly subdivide into dogmatic and moral theology. For Buddeus, Glaubenslehre and Sittenlehre are clearly distinct subjects for study: philosophia moralis takes its stand on reason, whereas theologia moralis takes revelation as its source of authority. It is moral theology that is decisive for the Christian, and therefore moral philosophy can only be a handmaid in the task of working out the correct pattern of behaviour owed by the individual Christian man or woman to God and his or her neighbour. Wolff’s crime in the eyes of Buddeus was exactly that of having reversed these priorities.¹ ¹ Buddeus works out his concept of moral theology in Institutiones theologiae moralis (Leipzig, ). A brief account of Buddeus’ position within Halle pietism is given in F. E. Stoeffler, German Pietism during the Eighteenth Century (Leiden, ), pp. –, and more exhaustively in A. F. Stolzenburg, Die Theologie des Jo.Franc.Buddeus und des Chr. Matth. Pfaff (Berlin, ), pp. –. See also F. Nu¨ssel, Bund und Verso¨hnung. Zur Begru¨ndung der Dogmatik bei Johann Franz Buddeus (Go¨ttingen, ). For a useful recent overview of Prussian pietism see Ward, Protestant Evangelical Awakening, pp. –.



Christian Wolff



Buddeus’s ‘history of morality’ was both one of the first to be written and one of the most widely circulated.² The author’s position as a junior colleague of Thomasius at Halle is reflected in his faithfulness to the view of the natural law tradition that Thomasius had outlined in his Institutiones. Much of it is given over to a detailed repetition of the polemical literature surrounding the contributions of Grotius and Pufendorf, the presentation of which was of course the chief pedagogic aim of these histories. The work is written in the confident belief that the work of Thomasius in properly demarcating natural law, positive law, moral philosophy and moral theology had effectively solved the existing areas for dispute in ethics: Hence he defined that principle of Pufendorf’s on the protection offered by society with its limitations, and carefully showed what could be derived from it. However, he strongly denied that what could not be derived from it belonged to natural law. Alongside his attack against those who might infer that what did not belong to natural law was immediately allowed, he not only demonstrated that the duties of man towards God and towards himself flow from a different source, but he also began a more precise investigation into positive universal law than had been done until then. Moreover, he stated that especially in affairs of marriage, where the laws of nature do not suffice, one must hark back to divine positive law.³

In fact this work marked the highwater mark of confidence within the genre. No one after Buddeus was able to argue that the problems left over from Pufendorf had been dealt with definitively by Thomasius. By not taking Thomasius’ later work into account, Buddeus evaded the possibility that those writings had not so much resolved remaining difficulties but rather disposed of the discipline itself and its history. Buddeus’ importance for us lies not in his own originality of insight or interpretation but more enduringly in his general works of popularisation of the history of philosophy, which were the first to incorporate the ‘history of morality’ into a wider context. Brucker was to take over this framework substantially intact, and was quick to acknowledge his debt in the Historia Critica Philosophiae: This most distinguished man knew full well that there could be no greater help to philosophy than its history. He assigned no little time and effort to it, and we ² It first appeared as ‘Historia Juris Naturalis’ in P. H. Vitrarius, Institutiones Naturae et Gentium (Leiden, ), and was then reprinted with additions in J. F. Buddeus, Selecta Juris et Gentium (Halle, ), which was itself reprinted in . It then travelled further afield, including an appearance as a preface to an edition of Pufendorf’s De Officio produced in Cambridge in  by Thos. Johnson. ³ Selecta Juris et Gentium §xli, pp. –.



Natural Law Theories

will not go far wrong in saying that Buddeus made a major contribution to the cultivation of this discipline in Germany, if one considers modern times.⁴

Buddeus published his general history of philosophy twice, once as a preface to a series of textbooks written for students at Halle while he was still professor of moral philosophy there, and once again as a separate and substantially enlarged work which was in fact not published until after his death.⁵ His account of the history of philosophy is divided into six large chapters, and opens with an account of the various forms of philosophical reflection, which Buddeus lists as scepticism, dogmatism, sectarianism and eclecticism – and he clearly prefers the latter to the rest. Ancient philosophy is divided into Hebrew and pagan philosophy, and the latter is then subdivided into Greek and barbarian philosophy, so that the next three chapters treat respectively of Jewish thought from Adam to modern editions of the Cabbala, Greek philosophy, and ancient writings not written in the Greek language. A short summary is given of medieval scholastic philosophy, and then the work concludes with an account of philosophia recentior in which the categories employed derive from the kind of opposition that each philosophical school developed in reaction to the scholastic legacy: some are seen as engaged in a revival of the Greek sects, whether Platonic, Aristotelian, Epicurean or Stoic, while others are labelled novatores, with Bacon and Descartes considered to be the most significant contributors in this context. But Buddeus seems to be of the opinion that, within Germany at least, the upshot of Cartesian rationalism had been a partial revival of scholasticism, rather than its complete supercession: And since Descartes had taken it upon himself to improve physics, and Pufendorf had done the same with ethical doctrine (or rather natural law), ⁴ J. J. Brucker, Historia Critica Philosophiae, tomus IV, pp. –. Buddeus’ erudition and pietist theology made him an especially appealing mentor to many pastors’ sons who went on to pursue joint academic and clerical careers. A good example is J. M. Gesner, a pupil of Buddeus at Jena, who later presided over the revival of classical scholarship at Go¨ ttingen: see La Vopa, Grace, Talent and Merit, p. . ⁵ Under the general title Philosophia Eclectica he first published Elementa philosophiae practicae (); Elementa philosophiae instrumentalis (), for which the history of philosophy acted as preface; Elementa philosophiae theoreticae (). In all, these volumes went through twenty-five editions before . The Compendium historiae philosophiae observationibus illustratum (Halle, ), was edited posthumously by his son-in-law, J. G. Walch, who enriched the original with observations drawn from the range of Buddeus’ writings since . Since this is a much fuller account, it is this latter work that will be discussed here. For the wide circulation of these works see M. Wundt, Die deutsche Schulmetaphysik im Zeitalter der Aufkla¨ rung (Tu¨ bingen, ), p. . For Buddeus’ position within eclecticism, see the excellent account in Albrecht, Eklektik, pp. –.

Christian Wolff



Leibniz decided to try out his talents on metaphysics (which greatly pleased even the scholastics).⁶

However, in the final sections of the long sixth chapter on the history of recent philosophy Buddeus summarised the polemics associated with Grotius, Hobbes and Pufendorf, and makes it clear that in the field of ethics at least the scholastics have been overcome.⁷ In the works of the Halle period Buddeus is keen to stress that the justification for this kind of history is as a propaedeutic to the teaching of the eclectic method itself: I very much think it appropriate for the minds of the young to be prepared, and as it were initiated for these mysteries through knowledge of that history. They are broken in easily, and historical topics commend themselves through the pleasure they provide, so that gradually the mind is led towards more serious matters.⁸

The study of the history of philosophy reveals effectively the defects of previous schools, and also sifts out what is worth carrying over into current philosophical reflection.⁹ So often the history of a philosophical system shows the original founder to have been eclectic in outlook, while his followers became rigid dogmatists determined to outlaw freedom of thought.¹⁰ The aspiring eclectic student should on the other hand combine consideration of phenomena in the abstract with the application of relevant doctrines drawn from his reading in the history of philosophy: Ultimately a man is worthy of the name and title of eclectic who accurately devises principles for himself by the examination of things themselves. Let him according to the standard of his principles select all those arguments which he reads in the work of others, appropriating for himself those which suit these principles [of his]; yet rejecting those that cannot be reconciled with them.¹¹

This vision of the present-day role of eclecticism is, of course, very similar to that evolved by Christian Thomasius; but as Buddeus was the first writer to apply eclecticism systematically to the writing of the history of philosophy his work contains original points of method that need to be noticed. For Buddeus the history of philosophy is less clearly a ‘progressive’ history: its various episodes represent a mixture of both truth and error which have to be separated and evaluated. This in turn requires the historian himself to organise and interpret his materials ⁶ Buddeus, Compendium, p. . ⁷ Buddeus, Elementa philosophiae instrumentalis (Halle, , th edn), ‘Lectori Benevolo’ (unnumbered). ⁸ Buddeus, Compendium, p. . ⁹ Ibid., §xxxiii-xxxv, pp. –. ¹⁰ Ibid., pp. –. ¹¹ Ibid., p. .



Natural Law Theories

much more incisively than had previously been the case. Instead of offering a mere doxography of doctrines, Buddeus sees it as his task to recover and exposit whole systems of thought within categories and labels that may not have been familiar to the participants, but which are familiar tropes to eighteenth-century readers and writers. This approach to texts, which is, both genuinely historical in its attempt to find perennial concerns in the history of philosophy, and anti-historical in its concern to redescribe past thinkers as participants in eighteenth-century debates, has been well summarised recently by Mario Longo: The historical reconstruction of systems and the scrutiny of the balance of truth and error in them constitute the two moments, both independent but equally necessary, of historical research. Only thus does the history of philosophy achieve the two purposes for which Buddeus had recommended its study; showing itself to be an indispensable tool for both the theologian and the philosopher, who find in it a reason to study their respective positions in greater depth, an opportunity for a useful confrontation.¹²

The tensions within this approach are clear, and indeed were to be fully exploited by Kant in his own brief history of philosophy at the end of the First Critique. But it is important to understand why Buddeus felt it necessary to apply this method, and remained blind to its apparent inconsistency. As we have seen, Buddeus believed that in general terms philosophy should remain the handmaid of theology; and in his later years, when preoccupied with questions of church history and moral theology, his interest in the history of philosophy seems to have shifted from its importance in defining eclecticism towards the links that the study of such a history could reveal between contemporary philosophical and religious thought in a given period.¹³ This change of emphasis and interests is apparent in the enlargements and additions in the Compendium to the original history of philosophy written over twenty years before; and nowhere is this more apparent than in the treatment of Spinoza and ‘Spinozism’, where there are frequent references to other books in which Buddeus had criticised Spinoza’s ethical theories and biblical criticism rather than just his core philosophical system.¹⁴ ¹² M. Longo, ‘Le storie della filosofia tra eclettismo e pietismo’, in G. Santinello (ed.), Storia delle storie generali della filosofia, vol. II (Brescia, ), pp. –. ¹³ Ibid., p. . ¹⁴ His engagement with Spinoza offers in itself a good window into his historical method: by identifying ‘Spinozism’ in as early an instance as ancient Greek conflation of matter and God, Buddeus succeeds in downplaying Spinoza’s originality and flagging those ideas and traditions whose study might still produce heterodox outcomes. See M. Mulsow, ‘Gundling versus Buddeus: competing models for the history of philosophy’, in Kelley History and the Disciplines, pp. –.

Christian Wolff



The history of atheism was, as one might expect for Buddeus, the logical and parallel story to the history of religious thought. Indeed, he had made the parallels explicit in a book written between his two histories of philosophy, Theses de atheismo et superstitione (). In this work he argued that atheist ideas had been consistent from the time of the Greeks onwards and are either of a sceptical kind, expressly denying the existence of divinity, or of a dogmatic kind, denying certain attributes of God, such as freedom. These two categories can be further subdivided into four different types that correspond to the four main sects of Greek philosophy: first the two sceptical forms, Epicureanism and ‘Spinozism’ (by which term he meant the eleatics, whose pantheism and monism Spinoza was alleged to have renewed); and then Aristotelianism and Stoicism, the two kinds of atheistical dogmatism. All these forms of atheism had followed a clear, traceable path to the present day, but the most influential, and therefore dangerous, in the post-Renaissance world had been ‘Spinozism’. The explanation for this success lay not simply in Spinoza’s arguments for the identity of God with material substance, but in his attempt to demonstrate this with fashionable rigour, more geometrico: ‘But Spinoza was the first man who reduced this impiety to a systematic form with the utmost zeal, and fitted the geometric method to it, yet with an unfortunate outcome’.¹⁵ Buddeus’ concern in his discussions of modern atheism is essentially not with those who deny God outright, but rather with those who while they may often speak of God, (whether sincerely or not), in fact reduce him to a purely artificial role in their philosophy. For Buddeus it was simply absurd to assert sincere belief in the divinity alongside a denial of any distinction between divine nature and material substance: ‘For in truth there is no distinction when it is to be said that there is one and the same essence, with at least a different aspect: then [this is applied] to God and then to the world’.¹⁶ Indeed, concern over what he took to be ontological confusions of this kind explains his early reservations over Leibniz’ discussion of divine attributes in the Theodicy, and these reservations were sharply intensified when he realised the ethical and theological implications of Wolff’s adaptation of Leibniz’ ontological principles. ¹⁵ J. F. Buddeus, Theses de atheismo et superstitione ( Jena, ), p. . For a thorough discussion of Buddeus’ writings on atheism, including his polemic against Bayle, see S. Masi, ‘Eclettismo e storia della filosofia in Johann Franz Budde’, Memorie della Accademia delle Scienze di Torino, Serie V,  (), pp. –. ¹⁶ Ibid., p. .



Natural Law Theories

Early on in his writing career Buddeus had expressed doubts over Leibnizian metaphysics. After the appearance of the Theodicy in , he produced a dissertation entitled ‘On the Origin of Evil’ in which he argued that Leibniz had failed to provide an adequate treatment of the existence of evil in a world which the philosopher believed to be the best possible. Leibniz brushed this criticism aside with a brief letter in which he associated Buddeus’ criticisms with the voluntarism of Pufendorf and Thomasius and dismissed any attempt to investigate the foundations of morality that did not proceed from analysis of the metaphysics of substance: He also defends a view, (which he lays down without it being proven by any kind of argument and which can hardly serve as a basis) about the morality of actions, which does not depend on the nature of the matter, but on the will of the legislator alone. This, of course, cannot be consistent with my views.¹⁷

Leibniz’ customary ability to see through to the key issues at stake allows him to present in this stark constrast the two options open to philosophers of the metaphysics of ethics. But it cannot be said that Leibniz is any more immune to criticism than the voluntarists; for there was indeed much truth in Buddeus’ accusations of ‘Spinozism’, however inaccurate his understanding of Spinoza may have been.¹⁸ If ‘Spinozism’ is understood as an ontological conflation of both God and the world, then it is very difficult to see how voluntary action, whether just or unjust, is possible for men, since the success or failure of all actions, good or evil, is a metaphysical matter and not a moral one: evil is rendered involuntary, a product of the necessary limitations of a ‘compossible’ world. God as creator of this world is responsible for evil, and not man. Buddeus is making the simple point that once you reject the will, divine or human, as the source of good and evil or even the lesser position that the will is the source of laws and norms from which good and evil may be recognised as historical conventions, then you are forced back on to some sort of determinism, where the origin of good and evil lies within either God or man, and for which men at ¹⁷ G. W. Leibniz, undated letter to J. F. Buddeus, Bibliotheca-Historico-Philologico-Theologica, VIII, (Bremen, ), pp. –. ¹⁸ It should perhaps be stressed that in the late seventeenth and early eighteenth centuries, when Buddeus read Spinoza, the text that was most readily available was the Tractatus TheologicoPoliticus, where the radical rationalism of Spinoza’s religious views was most evident. The Ethica, which provided the metaphysical foundations of the system, was far less well known. Spinoza’s cause in Germany was not assisted by the disreputable personal lives and obscure exposition of his two chief proponents, Conrad Dippel and Johann Edelmann. For an analysis of Spinoza’s infuence in Germany in the eighteenth century as a whole, see L. W. Beck, Early German Philosophy: Kant and his Predecessors (Harvard, ), pp. –.

Christian Wolff



least cannot be held responsible. In the Theodicy Leibniz evaded the charge that God had been made the source of evil by arguing that evil and goodness are essences that form part of God’s understanding, which he does not create: ‘Evil springs rather from the forms themselves in their detached state, that is, from the ideas which God has not produced by an act of his will’.¹⁹ But he can find no argument that will relieve him from the accusation of having deprived human beings of all moral responsibility. In the Monadology he had claimed that ‘creatures receive their perfections from the influence of God but [. . .] their imperfections are due to their own nature, which is incapable of being limitless’.²⁰ Thus human beings are devoid of freedom of moral action until such time as they achieve their reunification with the divine in the afterlife, which as monads aspiring to perfection is their goal. Leibniz had effectively ruled out moral responsibility in this earthly existence. Buddeus perceived similar ethical implications in the writings of Christian Wolff, and presented them as a contribution to the pamphlet war which developed when Wolff, who had become the leading philosopher at Halle in the s, was expelled on a charge of ‘Spinozistic’ atheism at the instigation of the pietist professor Joachim Lange (– ). The historiography of this dispute tends still to follow the lines laid down by Wolff’s victorious apologists, Hartmann, Ludovici and Gottsched, who presented Wolff’s opponents as philosophical pygmies, simply jealous of his growing reputation, and fearful of the implications for their own eclectic views of the force of Wolff’s systematic rationalism.²¹ While this may be an accurate assesssment of the vituperative Lange, the evaluation of Buddeus on the part of Wolff’s apologists is partial and misconceived. In fact Buddeus’ ‘Bedencken u¨ ber die Wolffianische Philosophie’ embody the first detailed demonstration of the degree to which Wolff had created a system of natural law from Leibnizian and scholastic materials that dispensed with the role of God in a far more deadly way than writers in the Pufendorfian tradition. Buddeus’ ‘Bedencken’ represent an excellent point of entry to a system of natural ¹⁹ G. W. Leibniz, Theodicy, ed. Farrer, III, §, pp. –. ²⁰ G. W. Leibniz, Monadology (), Philosophical Writings, ed. Parkinson, §, p. . ²¹ K. G. Ludovici, Ausfu¨ hrlicher Entwurff einer vollsta¨ ndigen Historie der Wolffischen Philosophie (Leipzig, ); G. V. Hartmann, Anleitung zur Historie der Leibnizisch–Wolffischen Philosophie (Frankfurt and Leipzig, ); J. C. Gottsched, Historische Lobschrift des . . . Herrn Christians . . . Freyherrn von Wolff (Halle, ). Examples of discussions that draw heavily on these accounts include E. Zeller, ‘Wolffs Vertreibung aus Halle. Der Kampf des Pietismus mit der Philosophie’, Preussische Jahrbu¨ cher,  (), pp. –; Schrader, Geschichte der Friedrichs-Universita¨ t zu Halle, I, pp. –; Beck, Early German Philosophy, pp. –.



Natural Law Theories

law theory that finally destroyed the old Protestant–scholastic synthesis while affecting to draw sustenance from it. The immediate cause of the dispute at Halle was Wolff’s rectoral address to the university in , ‘Oratio de Sinarum philosophica practica’. In this lecture he used the example of the ethical beliefs of the Chinese to reiterate Grotius’ point that even if God did not exist, nevertheless natural law would still persist. For the Chinese had neither a natural nor a revealed religion, and yet still they were able to erect principles by which they could live virtuously which were derived solely from their own reason: ‘The Chinese did not offer any teaching on human actions, and they did not take any view on the exercise of the virtues and on conduct except that they understood very well what suited the human mind’.²² From this example Wolff drew the obvious inference that human reason was the sufficient ground of natural law, since in logic you needed to press the argument no further. In the judgement of Buddeus this rationalist sidestepping of the issue of divine involvement in the origin of natural law was only one aspect of an atheistical approach that culminates in a denial that God possesses any attributes that are not also possessed by man: If we proceed further from the existence of God and ask what sort of concept the author has of God, we receive the answer: ‘God is the substance representing all universals at the same time as they clearly represent Him’. . . . As the author also describes the soul of man as a ‘substance representing a universal’, just as Mr. Leibniz attaches a degree of representativeness to the Monads themselves, as if to something incomplete, so it would follow that God is only differentiated from man’s soul by a degree of perfection.²³

He goes on to argue that by taking over two key theories from Leibnizian metaphysics (the theory of monads and the theory of preestablished harmony) and re-applying them, Wolff has revived a form of atheism reminiscent of Strato in its denial of free will through the dependency that the movements of the soul are made to have upon the movements of the body: ²² C. Wolff, ‘Oratio de Sinarum philosophica practica’, Meletemata Mathematico-Philosophica quibus accedunt Dissertationes, Lateinische Schriften, vol. XXXV (Hildesheim and New York, ), reprint of Halle edition, , p. . For an examination of the issues, see M. Albrecht, ‘Die Tugend und die Chinesen. Antworten von Christian Wolff auf die Frage nach dem Verha¨ ltnis zwischen Religion und Moral’, in Nuovi studi sul pensiero di Christian Wolff, ed. S. Carboncini and L. C. Madouna (Hildesheim, Zu¨rich and New York, ), pp. –. ²³ J. F. Buddeus, ‘Bedencken u¨ ber die Wolffianische Philosophie mit Anmerckungen erla¨ utert von Christian Wolffen’, in Kleine Kontroversschriften mit Joachim Lange und Johann Franz Budde, ed. J. Ecole (Hildesheim and New York, ) reprint of Frankfurt/Main edition, , pp. –.

Christian Wolff



Meanwhile it would be right to say that the central thesis from which the Leibnizian–Wolffian philosophy proceeds is that the whole world is a nexus of such monads, which are distinguished from one another by their degree of representation, and amongst which the one in which the highest degree of representation is identified is called God. Furthermore, every succession of changeable things could be called a world in which everything must necessarily happen because of the nexus of causes: the same also happens in the case of man’s soul and body where the first cause derives from the pre-established harmony of the soul.²⁴

This pointed summary of the Leibnizian-Wolffian metaphysics catches up many of the difficulties inherent in the foundations of Wolff’s systematic account of natural law, and which should now be examined in detail.²⁵                  ’        In his metaphysical definitions of substance, as in so many aspects of his system, Leibniz had sought to effect a reconciliation between postCartesian doctrine and earlier beliefs. His theory of monadology represented his first attempt to overcome the problem of Cartesian dualism on at least the metaphysical plane. Substances are joined to bodies in the world of existence but are not themselves material. Any adequate description of substance must take account of perception and action, must encompass a concept of force transcending inertness: I became aware that the consideration of an extended mass is not of itself enough, and that use must be made of the notion of force, which is fully intelligible, although it falls within the sphere of metaphysics.²⁶

Monads are judged to be subject to the scholastic Inesse principle whereby the all the predicates of a given subject are to be found within ²⁴ Ibid., pp. –. ²⁵ For recent detailed examinations of Wolff’s natural law theory see the brief but compelling account in Schneewind, Invention of Autonomy, pp. –, and the following three studies: E. Stipperger, Freiheit und Institution bei Christian Wolff (–). Zum Grundrechtsdenken in der deutschen Hochaufkla¨ rung (Frankfurt/Main, ); B. Winiger, Das rationale Pflichtenrecht Christian Wolffs. Bedeutung und Funktion der tranzendentalen, logischen und moralischen Wahrheit im systematischen und theistischen Naturrecht Wolffs (Berlin, ); C. Schwaiger, Das Problem des Glu¨ cks im Denken Christian Wolffs. Eine quellen-, begriffs- und entwicklungsgeschichtliche Studie zu Schlu¨ sselbegriffen seiner Ethik (Stuttgart and Bad Cannstatt, ). ²⁶ Leibniz, ‘New System and Explanation of the New System (–)’, Parkinson, Philosophical Writings, p. . There is good evidence to indicate that Leibniz was prompted to write this work in response to a dissertation, ‘Quid sit substantia?’, that appeared under Thomasius’s supervision in : see G. Utermo¨ hlen, ‘Leibniz’ Antwort auf Christian Thomasius’ Frage ‘‘Quid sit substantia?’’, Studia Leibnitiana,  (), pp. –.



Natural Law Theories

the concept of that subject; they are self-contained so that they have ‘no windows by which anything could come in or go out’.²⁷ Each monad already contains the potential unfolding of its own future development: God, seeing the individual notion of Alexander, sees in it at the same time the foundation of and the reason for all the predicates which can truly be stated of him – as for example that he is the conqueror of Darius . . . even to the extent of knowing a priori and not by experience whether he died a natural death or died by poison.²⁸

This universe is ordered and not chaotically atomistic, because God gives the monads their direction. It is the perfections of God to which the monads are drawn where ‘the apex of metaphysics and that of ethics are united in one’.²⁹ We have seen earlier in chapter  how Leibniz defined justice in Platonic terms as ‘the charity of the wise’. But if we move behind this core concept, then we see that caritas is no more than the habitual love of the perfections we recognise in others, which are themselves pale reflections of the perfections of God to which we all aspire and tend: ‘since the divine happiness is the confluence of all perfections, and pleasure is the feeling of perfection, it follows that the true happiness of a created mind is in its sense of the divine happiness’.³⁰ The metaphysical correlate of this principle within the theory of monadology was the natural propensity of substance to strive actively for perfection, the power to do so being in one sense a definition of its nature. This striving for perfection was seen in a distinctly neo-Platonic light as the struggle for reunion of the created with its Creator, God, ‘as to our Master and the final cause which must constitute the whole end of our will, and which alone can constitute our happiness’.³¹ The doctrine of pre-established harmony acts within this system as a gloss which attempts to meet outstanding dualist objections. Leibnizian rationalism required that there be some account of cause and effect within his system, but this seemed difficult to demonstrate given the axiomatic independence of the monads that left each as its own infima species. It was therefore necessary for Leibniz to argue that it is part of the divine purpose to establish a pre-programmed harmony that itself provides the explanation for the ‘concomitance’ between cause and ²⁷ Leibniz, Monadology, §, p. . ²⁸ Leibniz, ‘Discourse on Metaphysics ()’, ibid., p. . ²⁹ Leibniz, ‘Thoughts on the Principles of Descartes’, ed. Loemker, Philosophical Papers and Letters, II, p. . ³⁰ Leibniz, ‘Letter to Hansch’ (), ibid., p. . ³¹ Leibniz, Monadology, §, p. .



Christian Wolff

effect. Monads express their own unique characteristics, but in a perfect harmony that has the appearance of causal interaction: Imagine two clocks or watches which are in perfect agreement. This agreement can come about in three ways. The first consists of a natural influence . . . The second method [the way of assistance] would be to have the clocks continually supervised by a skilful craftsman who constantly sets them right. The third method is to construct the two clocks so skilfully and accurately at the outset that one could be sure of their subsequent agreement.³²

For Leibniz, metaphysics, theology and ethics were intimately linked and even interdependent. Neo-Platonism was the means by which these apparently disparate elements were reconciled. The doctrine of preestablished harmony, and the theory of monadology in general, could not in Leibniz be held to lead towards a ‘Spinozistic’ atheism since at all points one comes up against ‘divine anticipatory artifice . . . as if, over and above his general concourse, God were for ever putting in his hand to set them right’.³³ But were this neo-Platonic framework to be removed, and the focus upon God to be shifted, then these accusations would immediately begin to have purchase and force. It was exactly this neo-Platonic dimension that was lacking in Wolff’s account. Wolff produced a much more limited definition of substance striving merely for self-perfection instead of its shaping out its individual characteristics in the direction of reunion with the divine. This was much closer to Aristotle’s teleological theory of potentiality; and indeed it may be said that at all stages his ontology draws as heavily on the Aristotelian and scholastic traditions as on Leibniz. This dependence may loosely be attributed to the fact that these traditions were more readily assimilable within Wolff’s strictly deductive overall framework, whereby he sought to generate a systematic philosophy from a few basic logical principles. But it may be attributed even more directly and particularly to the results of his early reading and a failure, even in the course of a lengthy correspondence, to engage fully with the metaphysics of Leibnizian ontology. Wolff’s abandonment of this aspect of Leibniz’ doctrine of substance led correspondingly to a sundering of the links between natural theology and practical philosophy as drastic as that proposed earlier by Thomasius himself in a different context. If the monad’s pursuit of Vollkommenheit is seen not as a movement towards a higher order of perfection, the divine nature, but as a form of perfecting the species, ³² Leibniz, ‘New System’, ibid., p. .

³³ Ibid.



Natural Law Theories

then the links between the monads and God are broken: once man’s task is seen as that of self-perfection, then it swiftly follows that man’s reason is erected as a self-sufficient guide to the nature and characteristics of that perfection. Within man’s nature are the means to fulfilment to be found, axiomatically. In his first published dissertation of , Philosophia Practica Universalis methodo scientifica pertractata, Wolff had attempted to show that private good, public good and the glory of God were all related under the formula of means to end, a stance that was certainly compatible with Leibnizian metaphysics.³⁴ But in the course of a correspondence with Leibniz, initiated when the latter had been sent Wolff’s dissertation for an opinion, this formula was replaced by a relationship of part to whole in which each creature’s striving to perfection is now seen as a matter of self-realisation: God not only directs all his actions toward the summit of his own perfection within himself, and outside of himself to the perfection of any and every creature in its own way; but he also wishes man to direct his actions to this end.³⁵

But this striving to perfection of the individual increases general perfection, and does not harm the development of the whole.³⁶ Leibniz commented that Wolff seemed not to have fully appreciated the meaning of his theory of pre-established harmony; but the correspondence indicates that at this stage in his development Wolff saw more hope for the reformation of German philosophy in mathematical enquiry than in metaphysics: There is nothing I desire more than that the study of mathematics and of sound philosophy should flourish in our Germany. For sure, so far as I am concerned I shall not let slip anything I shall have judged advantageous to promote the public good, as far as it lies within my power.³⁷

Leibniz’ system was more of a quarry of ideas for this purpose than a finished self-sufficient model worthy only of reverence and a more popular exposition. ³⁴ This was a self-consciously ambitious work which sought to extend mathematical method to ethics so that a deductive science could be generated from a minimal set of clear and unexceptionable axioms. According to the first historian of Wolffian philosophy, it was Wolff’s intention to extend Cartesian method into ethics, the one area of philosophical inquiry where Descartes had not systematically ventured himself: ‘This encouraged him to continue the advancement of the scope of the philosophical sciences in the area where Descartes had come to a stop’ (Ludovici, Historie der Wolffischen Philosophie, §, p. ). ³⁵ C. I. Gerhardt (ed.), Briefwechsel zwischen Leibniz und Wolff (Halle, ), pp. –. ³⁶ See ibid., pp. –. ³⁷ Ibid., pp. –. Leibniz’ opinion is at p. .

Christian Wolff



Wolff’s first major systematic works on metaphysics appeared in the second decade of the eighteenth century, and when he looked back to this period in a later autobiographical memoir, he was keen to emphasise that his use of Leibnizian metaphysics was at this stage small: At that time little thought was given to the Leibnizian philosophy, which was no further known to me than Mr Leibniz’ concept of substance and ideas on truth and how it should be known, as it is introduced in the Preface on Logic.³⁸

In fact in metaphysics his debt was much more to Thomas Aquinas: It was not altogether true that I had arranged that philosophy of Leibniz in a particular system, since very few of the ideas in my metaphysical meditations are taken from Leibniz: more debates are derived from St. Thomas than from Leibniz.³⁹

In his student days and beyond, Wolff had relied on the sixteenthcentury compendium of the Summa Theologiae prepared by Ludovico Carbo, a point that he admits in a number of places.⁴⁰ His contemporary apologists were well aware of this, and Hartmann, the most sophisticated historian of the so-called ‘Leibnizian–Wolffian philosophy’, believed that Wolffian teachings on the workings of the faculty of Verstand, and on psychology, natural theology and ethics had important sources in the scholastics. Moreover, the whole of the Wolffian ontology derived from this philosophical school.⁴¹ The consequences of these ontological principles for Wolff’s account of human ethics may be seen immediately in his doctrine of natural law. Wolff starts from the position that the principles of ethics are presup³⁸ C. Wolff, Eigene Lebensbeschreibung, ed. H. Wuttke (Leipzig, ), p. . ³⁹ C. Wolff, ‘Monitum ad commentationem luculentam de differentia nexus rerum sapientis et fatalis necessitatis’, Opuscula Metaphysica, ed. J. Ecole (Hildesheim and New York, ), reprint of Halle edition, , §xviii, p. . ⁴⁰ For example, Wolff, Lebensbeschreibung, p. ; Wolff, ‘Monitum’, §, p. . For a full discussion of his reliance on Carbo for his knowledge of scholastic logic see M. Casula, ‘Die Beziehungen Wolff-Thomas-Carbo in der Metaphysica Latina. Zur Quellengeschichte der ThomasRezeption bei Christian Wolff’, Studia Leibnitiana,  (), pp. –. A detailed assessment of the impact upon Wolff of his education at Breslau, Jena and Leipzig is found in H. J. de Vleeschauwer, ‘La gene`se de la me´ thode mathe´ matique de Wolf ’, Revue Belge de Philologie et d’Histoire,  (), pp. –. ⁴¹ Hartmann, Anleitung, pp. –. On ontology he writes ‘The whole Ontology is almost scholastic, except that he has clarified concepts that were left obscure in the scholastics and enlarged the Ontology with new ones’ (p. ). There is a full discussion of Wolff’s use of scholastic philosophy in his Philosophia Prima seu Ontologia () in F. Ruello, ‘Christian Wolff et la scholastique’, Traditio,  (), pp. –. But there has been no study of the scholastic content of Wolff’s ethics. In the course of an examination of Wolff’s debts to Leibniz, C. A. Corr only remarks, ‘I suspect that the significance of what is rather loosely termed the ‘‘school philosophy’’, though more difficult to trace and identify, is at least of equal weight’ (C. A. Corr, ‘Christian Wolff and Leibniz’, Journal of the History of Ideas,  (), p. ).



Natural Law Theories

posed by those of metaphysics: ‘ethics can be directly linked to metaphysics’.⁴² In ethics, therefore, it is the principle of perfection (Vollkommenheit) that must be carried over and applied in the context of morals: ‘Therefore the concept of perfection is the source of my practical philosophy’.⁴³ If we grant in Leibnizian fashion that all substances are active, purposive powers, that becoming is bound up with Being, then it must follow that all human actions pursue the goal of perfection or its negation, imperfection, for man’s external and internal condition: ‘The free actions of men promote either the perfection or imperfection of his inner and outer condition’.⁴⁴ Man thus has the power of free will to follow perfection or imperfection as he chooses according to the light of his own reason.⁴⁵ Actions are not good or bad because God has ordained them so, but because they are intrinsically good or bad to the extent that they have assisted the perfection or imperfection of the individual.⁴⁶ Natural law consists, therefore, not in the arbitrary will of a superior, but in the ability of unaided human reason to make acts of moral discrimination automatically.⁴⁷ Reason’s capacity for deductive thought gives complete access to natural law, and we believe ourselves to be pursuing perfection according to its dictates even when we do evil. In these cases the clear representations of reason are blurred by the senses, imagination, or emotions and we are led into error and imperfection; but reason’s pursuit of perfection according to what it judges to be natural law is logically unimpugned.⁴⁸ Wolff acknowledges that he shares the scholastic belief in a moralitas intrinseca et objectiva, which stems from the fons of human reason. This scholastic principle is defended as sententia communis also by neo⁴² C. Wolff, Ausfu¨ hrliche Nachricht von seinen eigenen Schrifften, die er in deutscher sprache heraus gegeben, ed. H. W. Arndt, Deutsche Schriften, vol. IX (Hildesheim and New York, ) reprint of Frankfurt/Main edition of , §, p. . ⁴³ C. Wolff, Philosophia Moralis sive Ethica Methodo Scientifica pertractata, ed. W. Lenders,  vols. (Hildesheim and New York, ) (Reprint of Halle edition, , vol. V, praefatio (unnumbered)). ⁴⁴ C. Wolff, Vernu¨ nfftige Gedancken von der Menschen Thun und Lassen zu Befo¨rderung ihrer Glu¨ ckseligkeit [‘Deutsche Ethik’] Deutsche Schriften, vol. IV (Hildesheim and New York, ), reprint of Frankfurt/Main th edn, , §, p. . ⁴⁵ Wolff, Philosophia Moralis, II, §, p. . ⁴⁶ C. Wolff, Anmerckungen u¨ ber die Vernu¨ nfftigen Gedancken von GOTT [‘Deutsche Metaphysik’] Deutsche Schriften, vol. III, ed. C. A. Corr (Hildesheim and New York, ) reprint of Frankfurt/Main edn, , §, pp. –; C. Wolff, Philosophia Practica universalis methodo scientifica pertractata, vol. I, Lateinische Schriften vol. X (Hildesheim and New York, ) (Reprint of Frankfurt and Leipzig edition, ), §§–, pp. –. ⁴⁷ Ibid., §, pp. –. ⁴⁸ Wolff, Vernu¨ nfftige Gedancken, §§– and , pp. – and . Wolff follows explicitly the scholastic teaching that man acts solely ‘sub specie boni’, a point in Wolff’s theory that is properly acknowledged by Copleston in his discussion of Wolff. See F. Copleston, A History of Philosophy, vol. VI, Wolff to Kant (London, ), pp. –.

Christian Wolff

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scholastic theologians such as Scherzer and Alberti, who maintain that there is an intrinseca honestas actionum. Wolff willingly aligns himself alongside all these predecessors: It has been known for a long time that the reason why an action is good or bad, is to be found in the nature and essence of men: not only have the scholastics defended this truth in the name of moral objectivity, but our theologians as well have fought for it with great zeal.⁴⁹

He clearly sees current disputes over the source and obligation of natural law as akin to the quarrel between realists and nominalists in the Middle Ages. To the ‘realist’ position outlined above he counterposes the ‘nominalist’ position which he associates with the argument of the Pufendorfian voluntarist tradition that good and evil cannot exist prior to their promulgation as law: For sure the same doctrine has been taught amongst us from the beginning until gradually some people come along who accepted Pufendorf’s opinion that before law [was created] no action was good or bad, but only became so through law.⁵⁰

Although Wolff himself wrote no ‘history of morality’, it is evident from his description here of his contemporaries, and his own strong identification with the scholastics, what its main conservative contours might have been. When Buddeus vehemently criticised him for reviving the hypothesis impossibilis athei of Grotius in his rectoral address, Wolff riposted that he was simply highlighting the existence of actiones per se honestae that did not wholly rely upon a higher lawgiver, a doctrine with an impeccable pedigree which he had simply restated: ‘Enough that the thesis has good uses’.⁵¹ But Wolff’s redeployment of Grotian hypothetical atheism was not as innocuous and conventional as he made it to appear. It is true that in the context where he declares that the obligations of natural law ‘would take place in the same way if there were no God’, he is doing no more than denying that social consequences flow from the atheist’s rejection of the existence of God.⁵² But in broader terms it is very difficult to see what role there is for God to play at all in Wolff’s theory of natural law. While he may stress that God is the original source of natural law, he can have little scope to intervene after planting the capacity to reason in man’s mind.⁵³ The question is not, as it was in Pufendorf, whether God ⁴⁹ Wolff, Ausfu¨ hrliche Nachricht, §, p. . ⁵⁰ Ibid., pp. –. ⁵¹ Buddeus, ‘Bedencken’, p.  (note). ⁵² Wolff, Vernu¨ nfftige Gedancken, §, p. . ⁵³ Wolff, Philosophia Practica, vol. I, ch. , ‘De Deo, Legis Naturae Autore, Praemiis & Poenis’, pp. –.



Natural Law Theories

actually retains legislative power now man can define laws for himself; but rather, whether God can even logically make such moves. For if man’s goal is to seek his own perfection, and he has the means, as active rational substance, to identify that goal, how can God intervene to interfere with man’s self-assessment? The impulse behind God’s original gift of reason to man was a desire for greater perfection. On this principle he has already chosen the best of all possible outcomes. All Being derives from the ideas of divine intellect, and any idea in the divine mind must be both possible and free from contradiction. The same God who created men who could reason independently to shape out natural law, must, by his very nature be the basis of all real and possible things; and therefore the unalterable nature of natural law must be assumed. Beyond his initial act of Creation, God has been left little to do within the system: this is the direct result of Wolff’s departure from the metaphysics of Leibniz which had kept the relationship between God and man close at every level of metaphysics and ethics; under a system grounded on self-perfection instead of reunion with the divine and greatest of perfections, God is redundant beyond the first postulates. Wolff thus narrows the scope of ethics to be simply the art of governing relations among men through agreed fundamental principles of human reason; he sees no connection between human conduct and man’s teleological goal in Leibniz of harmony with the divine – something achieved at the end of a process in which man gradually comes to more and more clear representations of the truth of the universe that is contained in every substance.⁵⁴ If man’s goal is self-perfection, and his reason may provide him with the means to attain that aim, then Wolff’s fundamental ethical doctrine of mutual furtherance quickly follows. Personal perfection cannot be obtained by one man’s own selfish endeavours, and therefore it is entirely rational to assist the perfection of other men in the hope of gaining their assistance where it is needed: ‘Nature so entrusted every man to himself that by this commendation it at the same time commended every other man to him’.⁵⁵ There is therefore a second principle of natural law which can be enunciated to follow the first: ‘Man shall do what tends to the perfection of the world and omit to do what disturbs ⁵⁴ In this section I am indebted to the argument of A. Bissinger, ‘Zur Metaphysischen Begru¨ ndung der Wolffschen Ethik’, in W. Schneiders (ed.), Christian Wolff –. Interpretationen zu seiner Philosophie und deren Wirkung (Hamburg, ), pp. –. ⁵⁵ Wolff, Philosophia Practica, vol. I, §, p. . The doctrine of mutual furtherance is expounded in great detail in ibid., §§–, pp. –.

Christian Wolff



it’.⁵⁶ Thus by use purely of truths of reason accessible to every man, Wolff can promulgate a doctrine of unsocial sociability, that does not have to rely on belief in any innate sociability common to the human race. The twin goals of self-perfection and the perfection of the world are not in conflict. Likewise, his contention that there are two types of moral obligation, perfect and imperfect, rested on an assumption that reason indicated that in order to attain Vollkommenheit man had to pursue two parallel codes of practice: these were the law of nature whose obligation was perfect and accessible to the individual conscience, and the civil law generated to govern particular relations between men in society, whose obligation was imperfect in comparison, since it rested ultimately upon a notion of voluntary contract. Writers of textbooks who took Wolff as their inspiration were quick to structure their work around this distinction: for example, as early as , L. P. Thu¨ mmig (–) distinguished in his Institutiones Philosophiae Wolffianae, between ius naturae, the theory of moral philosophy, and philosophia civilis, the application of this theory as ius gentium.⁵⁷ Wolff himself took over these distinctions in the first of his Latin works in ethics, Philosophia Practica Universalis () where he recognises that the differing nature of legal obligations depends on the different sources of that obligation: whereas natural law originated in man’s reason, all positive law, human or divine, originated in acts of the will.⁵⁸ But he had already stated the essence of the point in his series of ethical writings in German: ‘If nature, God and men simultaneously bind us in obligation, so this one and only standard is as much a natural as a divine and a human law’.⁵⁹ Not only did these doctrines lead very quickly to a clear separation of international law from any clear derivation in the law of nature (a caesura to be opened up above all by Vattel), but also they seemed to indicate a substantial degree of rapprochement with the later work of Thomasius. The systematic demonstration of the existence of perfect and imperfect obligations was even more radical in its implications than Thomasius’ separation of the spheres of justum and honestum because it effectively denied a role for God in the creation of either. ⁵⁶ Wolff, Ausfu¨ hrliche Nachrichten, §, p. . ⁵⁷ L. P. Thu¨ mmig, Institutiones Philosophiae Wolffianae,  vols. (Frankfurt/Main and Leipzig, –). ⁵⁸ Wolff, Philosophia Practica, vol. I, §, p. : ‘Natural law is that which recognises sufficient reason in the very nature and essence of man and things’; ibid., §, p. : ‘Positive divine law is [law] whose obligation stems from the will of God; human [positive law] is [law] whose obligation stems from the will of a man or of many men.’ ⁵⁹ Wolff, Vernu¨ nfftige Gedancken, §, pp. –.



Natural Law Theories

Thomasius had left some links at least between divine justice and natural law; but in Wolff both natural and civil law were the product of human reflection and action alone. In Thomasius, the spheres of revelation and natural theology, its study, were left metaphysically distinct; in Wolff there was no room for revealed truth that could not be confirmed by reason. In their narrowly political theories both thinkers followed a similar contractarian path. There is a shared belief that all forms of political organisation arise from discrete acts of political will, rather than naturally from social or economic causes in the traditional Aristotelian account. Contracts are seen as appropriate vehicles for the expression of political will because they satisfy both the selfish interests of individuals and the general interest of a society. Once contracts are made and men have given up their natural freedom then in civil society there can be a right of resistance in few cases.⁶⁰ So it would be fair to say that there is little in the theories of government in either writer that would offend contemporary proponents and exponents of enlightened absolutism. There is a common distrust of all forms of mixed government that share decision-making between coordinate, but different bodies.⁶¹ Instead what emerges is a focus on contract governed by the obligation of monarchical government to provide for the welfare of its subjects. Despite his early exploration of the more radical implications of Pufendorf’s double contract, Thomasius is compelled continually to fall back upon the administrative power of the enlightened ruler to achieve his ends – whether the promotion of the values of decorum, the extension of toleration or (paradoxically) the establishing of the proper boundaries between the spheres of church and government, which he believed his clerical opponents had transgressed. Wolff, too, is as keen as Thomasius to concede far-reaching powers of supervision over those areas of common welfare that must remain the province of the government, even if those areas ⁶⁰ For Thomasius’ version of contractarian theory see K. Luig, ‘Christian Thomasius’, in M. Stolleis (ed.), Staatsdenker im  und  Jahrhundert. Reichspublizistik, Politik, Naturrecht (Frankfurt/ Main, ), pp. –. Wolff’s statements on the same question are well summarised in M. Thomann, ‘Christian Wolff’, in ibid., pp. –. ⁶¹ Recent scholarship on enlightened despotism has tended to emphasise that mainstream natural law thinkers were generally supporters of enlightened despotism because their theories allowed little political freedom for citizens once government had been constituted and a status civilis established. For instance, Klippel has observed that Wolff’s concept of the state involves conceding to the prince the power to constrain or extend the freedoms of subjects at will, and a right under the original contract to establish a potestas herilis (D. Klippel, ‘Politische Theorie im Deutschland des . Jahrhunderts’, Aufkla¨ rung,  (), pp. –).

Christian Wolff



remain few in theory. The concept of a highly bureaucratic state structure is the end product of these concerns. In Thomasius’ case this made him an important influence on later eighteenth-century cameralists.⁶² But for Wolff, when these commitments were added to the emphasis on duty and obligation that already underpinned his natural law theory, the result was to assist the relatively uncontroversial integration of his textbooks into the more enlightened Catholic universities in South Germany and Austria. Their metaphysics were redolent of scholastic orthodoxy, and their political outcome too seemed equally uncontroversial, especially as it remained consonant with traditional historical and legal approaches to the development of government in the Reich.⁶³ Wolff found particular favour in Catholic circles for his ‘Oratio de sinarum philosophica practica’, which appealed to the Jesuits who had initiated the sympathetic study of Chinese moral philosophy. Moreover, when he returned to the subject of China in a lecture from his period of ‘exile’ in Marburg, he used the example of the Chinese emperors to demonstrate the congruence of enlightened despotism with acceptable models of monarchy: without the benefit of any inherited models or revelation the Chinese had settled on a monarchical system as the best representation of the commonwealth. They were helped in this by their study of Confucian philosophy, which enabled them to be true ‘philosopher kings’, a concept of monarchy that with its vaguely enlightened and Platonic associations, was well received in both Catholic and Protestant Europe.⁶⁴ Here he was building on the association already made by Leibniz between optimistic belief in the ⁶² See F. M. Barnard, ‘Christian Thomasius: Enlightenment and bureaucracy’, American Political Science Review,  (), esp. pp. –. ¨ sterreichischen Universita¨ ts- und Wissenschaftsre⁶³ See N. Hammerstein, ‘Besonderheiten der O form zur Zeit Maria Theresias und Josephs II’, in R. G. Plaschka and G. Klingenstein (eds.), O¨ sterreich im Europa der Aufkla¨ rung, vol. II (Vienna, ), pp. –. The easy integration of Wolffian ideas into the heart of Catholic administrations is exemplifed in the career of Karl Anton von Martini (–), a favoured professor of natural law in Vienna (–) under Maria Theresa and Joseph II, tutor to the future Leopold II, colleague of Van Swieten and Sonnenfels on the government’s Studienkommission on educational reform, and opponent of the continued use of torture. His major work De Lege Naturali Positiones (Vienna, –) is an explicitly Wolffian text. ⁶⁴ C.Wolff, ‘De Rege Philosophante et Philosopho regnante’, Horae Subsecivae Marburgensis, vol. II, Lateinische Schriften, vol. XXXIV, ed. J. Ecole (Hildesheim and New York, ) reprint of Frankfurt/Main and Leipzig edition of , p. . The whole question of the origin and chronology of Wolff’s interest in China is considered in D. F. Lach, ‘The sinophilism of Christian Wolff’, Journal of the History of Ideas,  (), pp. –. Wolff’s use of the Chinese case study offers an interesting parallel to its deployment by the physiocrat, Franc¸ ois Quesnay, as an example of a stable agrarian monarchy worthy of emulation by French monarchs aspiring towards more rational and fiscally efficient administrative control.



Natural Law Theories

potential wisdom and charity of modern enlightened monarchs and the historical example of China, a model that assisted Wolff’s purposes rather more than it did Thomasius.⁶⁵ However, in two real senses Wolff’s enterprise remained radically distinct from that of Thomasius. Wolff’s separation of will from reason as different categories of human nature, and his derivation of natural law from the one and positive law from the other, could not be more different from Thomasius’ insistence that the will and reason were inextricably joined, interacting even when reason seemed to be in the ascendancy. This contrast was an object of frequent comment by Schmauss, who took his bearings in natural law directly from Thomasius’ Fundamenta: It is, moreover, very necessary for beginners to note what Thomasius records frequently: that in human nature intellect and will-power must be seen as the two most important powers of the soul, and not as parts that are completely distinct from one another. Rather, they stand in a close affinity to one another, in such a way, however, that in what concerns real human actions, the will actually remains in charge and that the intellect for the most part only accommodates itself to it like a servant to his lord, but often still has great influence upon the will.⁶⁶

But behind this fundamental divergence of principle lies as well a wholly divergent understanding and use of the history of philosophy. As we have seen, Thomasius was determined to cast off the yoke of Protestant neo-scholasticism, just as Wolff may be seen as engaged in sustaining and reviving it when it appeared to be beyond redemption. This was certainly the context in which historians of philosophy, such as Brucker, chose to contrast their stances. For Brucker it was a matter of deep regret that Wolff and his followers had spoilt this opportunity to break finally with the past: ‘Must that whole dispute, which Pufendorf took up against the scholastics and which Thomasius continued and conducted with great triumphs, which Leibniz and Wolff brought to an end once again, concern a battle of words?’⁶⁷                         .  .     While it may seem that the Wolffian moral system culminated in conclusions similar to those of Thomasius, nevertheless the pattern of ⁶⁵ See P. Riley, ‘Leibniz’ political and moral philosophy in the Novissima Sinica –’, Journal of the History of Ideas,  (), pp. –. ⁶⁶ Schmauss, Vorstellung des wahren Begriffs, pp. –. ⁶⁷ Brucker, Historia Critica Philosophiae, vol. V, period III, pars II, lib. , cap. ix, Ziff. cxxii, p. .

Christian Wolff



argumentation and use of authorities was strikingly different, a fact which was given enduring emphasis by the success within the German philosophical community of the histories of Wolffianism and its battles with the pietists, as written by Ludovici and Hartmann. These works were used extensively by Brucker in his discussions of all modern German developments, and as a result his account of recent moral philosophy is a composite picture drawn up under the influence of both the Thomasian and Wolffian traditions. While the ‘history of morality’ disappeared as a genre under the impact of Kant’s Critical Philosophy, its outlines had already been obscured by Wolff’s powerful intervention on behalf of the continuing validity of scholastic ethics. Brucker’s account of natural law theory is a composite one that attempts to reconcile the Thomasian and Wolffian contributions; but this is at the cost of endangering any coherence that an eclectic outlook may still possess.⁶⁸ The Historia Critica Philosophiae is divided into three large periods: from the beginning of the world to the birth of Christ, from the Roman empire to the Renaissance, and from the Renaissance to modern times. Each of these periods is divided into two, so that there are six subdivisions in all: ancient philosophy that is part of Greek culture and that which lies outside the Aegean; Arabic philosophy and medieval scholasticism for the Middle Ages; the revival of the Greek sects in the Renaissance and wholly new philosophy that merits the name of eclectic. Brucker sees his task as one of providing a historia personarum and a historia doctrinarum. He therefore collates information from all sources that could have a bearing on these categories, and after assessing its authenticity arranges the data within the framework of a particular philosophical school where he assumes there to have been a founder, followers of the founder, and finally systematisers who set up the framework that has retained historical credibility. Usually further subdivisions within the six are made according to chronology or geography; but in the final sections on modern philosophy the distinctions become conceptual where Brucker believes that the philosopher in question has ⁶⁸ Jakob Brucker was a generation younger than Wolff. He was educated at the university of Jena under Buddeus, who was decisive in his intellectual formation. He held a number of obscure clerical posts at Kaufbeueren and Augsburg in a life that was otherwise devoted to the study of the history of philosophy. For a biographical study see K. Alt, Jakob Brucker ein Schulmeister des . Jahrhunderts (Kaufbeueren, ). The Historia Critica Philosophiae appeared twice in his lifetime, first in –, and in an augmented edition in –; and for a recent study see W. Schmidt-Biggemann and T. Stammen (eds.), Jacob Brucker (–). Philosoph und Historiker der europa¨ ischen Aufkla¨ rung (Berlin, ).



Natural Law Theories

broken away from the accepted sectarian template.⁶⁹ The crucial influences upon the overall direction and content of Brucker’s work are Buddeus, Heumann and Wolff, and each of these influences needs careful assessment. The method that has just been described, with its emphasis upon factual accuracy, the separation of myth from true doctrine, and the recreation of lost systems, is drawn directly from the recommendations contained within Heumann’s Einleitung zur historia philosophica which as early as  had attempted to set up historia philosophiae distinct from historia litteraria as a scientific discipline. This method had a notable effect on Brucker’s final work since it reduced decisively the amount of credence that was given to patristic judgements upon Greek philosophy.⁷⁰ It was to Buddeus that Brucker owed both his eclecticism and his concern to relate the history of philosophy to that of religion. The history of philosophy takes its place on exactly the same grounds that Buddeus had employed: as a means of sharpening the mind’s critical faculties, as a technique for freeing the mind from prejudices, and as a necessary introduction to superior branches of philosophy. Above all, the reader is enabled to identify heresies and find the tools with which to combat atheism: if the errors of great philosophers can be identified then the limits of human reason may also be more easily defined, and concomitantly the spheres of theology and philosophy amicably separated. While Thomasius had tended to assume that this separation would be rather to the benefit of philosophy, Buddeus and Brucker seem to have considered on the other hand that it would be the remit of theology that would emerge in the ascendancy.⁷¹ This tense combination of a newly rigorous historical method and a Lutheran apologetic objective (against atheism and Catholicism) led to a certain incoherence in Brucker’s treatment of eclecticism. On the one hand he wishes to argue that the truth of religion must rest on a higher plane than that of reason: It cannot be said by this means how great a certainty we derive from the most sacred faith, and how often we have been overcome by distaste at the manifold vexations of human wisdom when it has withdrawn from the royal way.⁷² ⁶⁹ For a detailed discussion of Brucker’s method see M. Longo, ‘Storia ‘‘critica’’ della filosofia e primo illuminismo. Jakob Brucker’, in Santinello Storia delle storie generali della filosofia, II, pp. –. For Brucker as a historian of eclecticism see the balanced assessment in Albrecht, Eclecticism, pp. –. ⁷⁰ Ibid., p. . Heumann’s work was published in Acta Philosophorum, a periodical he edited and largely wrote himself. Its fascicles appeared between  and  at Halle. ⁷¹ Brucker, Historia Critica Philosophiae, I, p. . ⁷² Ibid., V, praefatio (unnumbered).

Christian Wolff



Indeed, the divine origin of wisdom is a central theme of the earlier volumes, and conditions the account that is provided both of oriental philosophy, Platonism and the medieval scholastics.⁷³ But on the other hand, the actual history of philosophy that Brucker provides breaks the pedagogic bounds that appear to have been set on it. While the history of philosophy up to the seventeenth century is seen as a balanced mixture of wisdom and folly – Weisheit und Torheit, in Thomasius’ phrase – the account that is offered of recent philosophy is one of development from infancy to maturity where lasting Weisheit has been obtained. Notwithstanding the manifest differences of doctrine and method between figures as diverse as Bruno, Campanella, Bacon, Descartes, Leibniz and Christian Thomasius, Brucker wishes to describe them all as eclectics since they exercised liberty of thought across the whole range of philosophy and chose selectively those periods of the history of philosophy that assisted their own enterprises.⁷⁴ Leibniz and Wolff are given special prominence as heroes in the account of modern philosophy because in Brucker’s opinion they had successfully reconciled the demands of faith and reason in their systems. Yet the descriptions of their work and the influence upon them of Descartes is taken almost unaltered from the partisan histories of the Wolffians Ludovici and Hartmann, which are wholly rationalist in tone. The impression is given that rationalism has triumphed despite Brucker’s claims to the contrary. Although Spinoza is condemned in the same terms that Buddeus had employed, no accusations of Spinozism are carried over to the Wolffian school.⁷⁵ The writings of Wolff represent what is most recent and substantive within German philosophy: indeed in the second volume a substantial mantissa, or appendix, is added to include reference to Wolff’s later series of writings in Latin which had not fully appeared at the time of first edition of Brucker’s Historia Critica Philosophiae. It is noticeable that contemporaries were themselves unsure whether rationalism or Lutheranism was uppermost in Brucker’s mind during the composition of the Historia Critica Philosophiae: certainly, when Diderot came to plunder Brucker extensively for the Encyclope´die he was able to ignore the discussions of religion and concentrated on the expositions of secular philosophy which were ⁷³ See especially vols. I–III of Historia Critica Philosophiae. ⁷⁴ The discussion of the natural law tradition and writers in the Wolffian school is assembled in Historia Critica Philosophiae, V, period III, part II. ⁷⁵ For Brucker’s rejection of Buddeus’ accusations of ‘spinozistic’ atheism against Wolff see Brucker, Historia Critica Philosophiae, VI, p. .



Natural Law Theories

logically distinct. As Jacques Proust has written, Brucker’s material seems to have eluded his ability to organise and control it: The rationalism of Brucker is not the worldly mask of a clever apologist, but a basic choice in his thought . . . As one sees, Brucker goes further than all those who have preceded him. He is nonetheless at the limit beyond which he could not venture; it is in his work that rationalism has been pushed to its final consequences; where belief in a revealed religion which agrees in every respect with natural religion is substituted for the absence of all belief, that is, atheism.⁷⁶

A further consequence of these priorities is that the ‘history of morality’ as we have understood it so far becomes a much more subordinate part of the overall account. While in Buddeus’ Compendium it had still represented the major achievement of eclecticism in the preceding one hundred years of philosophy, in Brucker’s textbook the definition of eclecticism had been broadened to accommodate the Leibnizian– Wolffian philosophy with which it was hardly compatible. The result was a blurring of the outlines of the history of ethics that had originally been associated with eclecticism, and the extinction of what had been philosophically distinctive about eclecticism. The dominant tradition in European philosophy is perceived to be the axis of Descartes, Leibniz and Wolff, and figures such as Hobbes and Pufendorf are increasingly marginalised. Hobbes is written up as a solely English phenomenon without a continental dimension, and Pufendorf’s contribution to natural law theory is played down in comparison with his role as the teacher of Thomasius, who in turn is admired largely for his polemics against scholasticism and not for his substantive natural law theory. Each figure in the ‘history of morality’ is indeed discussed, but they are dispersed within a gallery of portraits whose more recent acquisitions claim an equivalent value and importance. It was the creation of this clear and dominant connection between Leibniz and Wolff in all philosophical fields that created the context in which it was plausible for Kant to draw that equally simple distinction between systematic dogmatism typified by Wolff, and systematic scepticism as represented by Hume. By  it was commonplace to see the eighteenth-century history of philosophy in Germany as one dominated by Leibniz and Wolff in all departments, where the members of the natural law tradition are only accorded minor parts. It was relatively easy for Kantian historians to reunify the disparate strands of natural law writing within this conveniently simple model before demonstrating its contemporary obsolescence. Thus in a sense it was Brucker himself who had effective⁷⁶ J. Proust, Diderot et l’Encyclope´die (Paris, ), p. .

Christian Wolff



ly buried eclecticism in the historiography of moral philosophy, well before the Kantian revolution altered philosophy’s perception of its past once more.                            We have examined the ways in which the writings of Wolff represented a powerful reshaping of the tenets of scholastic and Leibnizian natural law within a strict deductive framework. But the rapid dissemination and acceptance of his concepts across Europe requires a deeper study in which the changing assumptions of rulers, bureaucrats and university teachers about the proper relationship of citizens and states in the middle decades of the eighteenth century play an important role, signalling an end to the intellectual framework of the Fru¨ haufkla¨ rung. Historians have been aware for some time of the relatively easy transition that Wolff’s textbooks made into southern and Catholic Germany through their systematic resemblance to comparable existing scholastic texts.⁷⁷ But just as important for their practical impact outside German universities was the easy adaptation of Wolff’s account of the proper relationship between the state and the citizen into the political culture of enlightened absolutism. Both Hellmuth and Klippel have demonstrated how Wolff’s belief that the individual most nearly achieved perfection within the community was transmuted into a bureaucratic ethic of service that anticipated elements of Kant’s subjugation of public dissent to a greater public good. Moreover the doctrine of self-perfection of the individual within the state or community is used to breathe new life into the Aristotelian concept of the potential that lies within the polis for development to perfection; but with the difference here that the perfection may be effected through the intervention and direction of state officials and bureaucrats enforcing a concept of duty.⁷⁸ Nor was eclecticism irrelevant here, for the greater critical awareness about philosophy’s past that it fostered served to encourage a clearer understanding of ‘practical philosophy’ as a discipline independent of others. Above all the clear and consistent relationship of reason to nature in Wolff’s work laid the foundations for philosophy’s successful ⁷⁷ See, for example, T. C. W. Blanning, ‘The Enlightenment in Catholic Germany’, in R. S. Porter and M. Teich (eds.), The Enlightenment in National Context (Cambridge, ), p. . ⁷⁸ See E. Hellmuth, Naturrechtsphilosophie und Bu¨ rokratischer Welthorizont (Go¨ ttingen, ) passim; Klippel, ‘The true concept of liberty’; D. Klippel, ‘Von der Aufkla¨ rung der Herrscher zur Herrschaft der Aufkla¨ rung’, Zeitschrift fu¨ r Historische Forschung  (), pp. –.



Natural Law Theories

assertion of itself as the key intellectual discipline within the university system that was to take place under the inspiration of Kant. Reason assumed the status of a unique and all-encompassing interpretative tool that could only be utilised properly by philosophers themselves in the study of natural law and natural religion. Neither the faculty of theology (because of its confessional ties) nor jurisprudence (because of its connection to the service of the state) could be truly impartial; and thus Wolff’s influence within the German academic structure served to promote the status of philosophy at the expense of jurisprudence and implied the replacement of the historical interpretation of natural law with a return to abstract philosophical analysis. Both of these developments anticipated the position that Kant formalised in his Der Streit der Faculta¨ ten ().⁷⁹ However, outside the formal structures of German academic life, attempts to disseminate Wolff’s works did not meet with any similar success.⁸⁰ For example, the epitome Principes du Droit de la Nature et des Gens (), produced by Samuel Formey (–), failed to make any significant impact despite its author’s confidence that translations of Wolff would be welcomed with the same alacrity as Barbeyrac’s earlier editions of Grotius and Pufendorf (to which the Berlin-based Huguenot hoped his own work would offer a parallel).⁸¹ A contemporary commentator suggested that the popular failure of Wolff’s works was due not simply to the extreme length of Wolff’s work even in summary form, but also to its neo-scholastic systematisation which was wholly alien in post-Cartesian France: ‘Few people have had the courage to support with all the necessary attention the reading of several large volumes written according to the geometric method’.⁸² Clearly anyone who was to succeed in popularising Wolff outside Germany would have to jettison much of the metaphysics, and also write in the ⁷⁹ See Schmidt-Biggemann, ‘New structures of knowledge’, in Ridder-Symoens Universities in Early Modern Europe, pp. –. ⁸⁰ For the influence of Wolff’s textbooks within academic and legal circles in Germany itself see three articles by M. Thomann: ‘Influence du Ius Naturae de Christian Wolff’, in Christian Wolff, Ius Naturae,  vols., M. Thomann (ed.), (Hildesheim and New York, –), pp. v–lxxxi; ‘Christian Wolff’, in Stolleis, Staatsdenker im . und  Jahrhundert, pp. –; ‘Die Bedeuting der Rechtsphilosophie Christian Wolffs in der juristischen und politischen Praxis des . Jahrhunderts’, in Thieme, Humanismus und Naturrrecht in Berlin-Brandenburg-Preussen, pp. –. ⁸¹ See C. Wolff, Principes du Droit de la nature et des gens extrait d’un grand ouvrage Latin de M. de Wolff, ed. J. H. S. Formey (Amsterdam, ), pre´face. The failure of efforts to export Wolff to France is documented in S. Carboncini, ‘Christian Wolff in Frankreich. Zum Verha¨ ltnis von franzo¨ sischer und deutscher Aufkla¨ rung’, in W. Schneiders (ed.), Aufkla¨ rung als Mission/La mission des lumie`res (Marburg, ), pp. –. ⁸² C. Wolff, La Belle Wolfienne, ed. J. Des Champs (The Hague, ), ‘Avertissement’, p. .

Christian Wolff



clear and accessible prose style that was customary in French moral and political philosophy. In these two respects Vattel was to be eminently successful in his Le Droit des Gens, ou des Principes de la Loi Naturelle ().⁸³ Emer de Vattel (–) was of the same generation as several of the French philosophes, but as a citizen of Protestant Neuchaˆ tel and a career diplomat in the service of the elector of Saxony, his background was very different, and left him much more receptive than most francophone writers both to Protestant natural law writings (as mediated through Barbeyrac) and also to Wolff’s vast series of tomes on natural and public law.⁸⁴ His explicitly stated intention is to make the work of Wolff accessible to a wider readership, but the tensions between the more liberal views of Barbeyrac and the comprehensive Wolffian embrace of the authority of the state are often visible.⁸⁵ In the preface to Le Droit des Gens, Vattel expresses dissatisfaction with the natural law school’s tendency to base the law of nations upon the study of rules and customs based on consent, and condemns this as unscientific.⁸⁶ For him, Hobbes, despite his monstrous doctrines, was the ‘first to my knowledge, to give us a distinct though imperfect idea of the Law of Nations’.⁸⁷ For he was the first to see that natural law did not apply identically to cities as to individual men, the first to argue that there was a separate natural law of states. But Barbeyrac went further than Hobbes in perceiving that the principles behind these two sets of laws were very similar, although differences in application concealed this point.⁸⁸ However, Barbeyrac had not explored the full potential of his idea: He merely praises the method of Buddeus, saying, ‘that this author did well in noting (in his Elementa Philos. Pract.), after each article of the natural law, the application which could be made of it to Nations in their mutual relations; as far at least as the matter in question would permit or require’.⁸⁹ ⁸³ E. de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, applique´s a` la Conduite et aux Affaires des Nations et des Souverains, ed. A. de Lapradelle, trans. by C. G. Fenwick as The Law of Nations or the Principles of Natural Law applied to the Conduct and to the Affairs of Nations and of Sovereigns (Washington, ),  edition. ⁸⁴ The most useful recent discussions of Vattel’s work are E. Jouannet, Emer de Vattel et l’e´mergence doctrinale du droit international classique (Paris, ), together with F. S. Ruddy, International Law in the Enlightenment: the Background of Emmerich de Vattel’s ‘Le Droit des Gens’ (Dobbs Ferry, N.Y., ), and (more succinctly) F. G. Whelan, ‘Vattel’s doctrine of the state’, History of Political Thought,  (), pp. –. ⁸⁵ Vattel, Le Droit des Gens, pre´face, a. He appears to endorse a right to resistance similar to Barbeyrac’s (see Whelan, ‘Vattel’s Doctrine of the State’, p. ), but on the other hand applies the Wolffian doctrine of self-perfection to the telos of the state (ibid., p. ). ⁸⁶ Vattel, Le Droit des Gens, pre´face, p. a. ⁸⁷ Ibid. ⁸⁸ Ibid., p. a. ⁸⁹ Ibid.



Natural Law Theories

It was Wolff, according to Vattel, who was the first to give this subject important consideration in his last systematic treatise, Jus Gentium methoda scientifica pertractatum (), where he had not only perceived that the law of nations and the individualised law of nature could be generated from common principles, but had actually gone about doing so with due regard to the differences of application.⁹⁰ States as moral persons were seen to be bearers of ‘natural’ obligations and rights, where ‘natural’ meant according to their nature as states rather than ‘natural’ as that term was applied to the rights and obligations considered as basic to man as an individual: He saw that it was only by means of these principles that it could be clearly shown that the precepts of the natural law with respect to individuals ought, by reason of the character of that very law, to be changed and modified when it came to being applied to States or political societies, and so to form a natural and necessary Law of Nations. Hence he concluded that the Law of Nations should be treated as a distinct system, a task which he has successfully performed.⁹¹

Vattel then quotes a long passage from the preface to Jus Gentium in which Wolff explains that by the law of nations he understands two linked concepts: first, nations must be considered as ‘so many persons living together in a state of nature’. Therefore, all the obligations and duties that apply to men in nature must apply also to the citizens of sovereign states: ‘to this extent the Law of Nations is clearly connected with the Law of Nature’. This law, which is common to all nations is therefore called by Wolff the natural law of nations. Secondly, nations are, as corporate personae morales, bearers of rights and obligations that emerge only through the acts of political association by which those states are formed. Thus, ‘[t]he nature and essence of these moral persons will necessarily differ in many respects from the nature and essence of the physical units or men, who compose them’. So the Law of Nations deserves separate consideration from the law of nature, while it is understood that the two are still inextricably linked.⁹² Vattel judged that in his Jus Gentium Wolff had achieved this dual and difficult task, and set about providing an accessible summary of how the relationship between the two operates. However, that success was not such that it did not require further mediation, and Vattel found himself involved in more than a simple ⁹⁰ For Wolff’s original see C. Wolff, Jus Gentium, methodo scientifica pertractatum, Lateinische Schriften, vol. XXV (Hildesheim, ), reprint of Halle edition, . ⁹¹ Vattel, Le Droit des Gens, pre´face, p. a. ⁹² All quotations from Wolff cited in ibid.

Christian Wolff



redaction. Wolff’s initial distinction between the necessary law of nations (that which is held in common with individual men) and the voluntary law of nations (that which is of the nature of the sovereign state) is glossed by the introduction of a further concept – a great world state or civitas maxima – to which all the sovereign states belong, and which is the source of universal rules accepted by all the states. Wolff ’s system required that just as every member of a civil power surrenders some rights to a general authority, so, in parallel, all states must be subordinated in turn. However, Vattel found himself quite unable to accept the analogy which seemed to bear little purchase outside the political assumptions of the German Reich: ‘This does not satisfy me, and I find the fiction of such a republic neither reasonable nor well enough founded to deduce therefrom the rules of a Law of Nations at once universal in character and necessarily accepted by sovereign states’.⁹³ Wolff’s theory, which used the concept of the civitas maxima to manage and bridge the distinction between the voluntary and necessary law of nations, reflected an older world view where the Holy Roman empire remained a living part of political debate. It was simply not plausible, even as an abstract model, in an era of sovereign states that quite clearly were independent and free standing. The analogy between the imbecillitas of individual men, and that of individual states was untenable as a basis for a normative account of international relations. For in the era of raison d’e´tat and the balance of power where wars had been diverted to fringes of states, between states rather than within them, the obligation of interdependence must be a fiction. The end of religious civil wars had produced the formation of a unified plane of sovereign authorities each embodying, as Koselleck has written, a ‘[d]elimitation of an independent inner space, a space whose moral integrity was shown by Hobbes to lie solely in its character as a State’. Paradoxically, it took the emergence of such ‘morally inviolate interiors’ to ‘effectuate the outward evolution of an inter-state, supra-individual commitment’.⁹⁴ This was as true of the realm of theory as of practice: for Vattel’s revision of Wolff’s formula took the form of accepting the natural liberty of states. Nations will see that ultimately it is in their self-interest to pursue a foreign policy that adopts the common good as its goal:

⁹³ Ibid., p. a.

⁹⁴ Koselleck, Critique and Crisis, p. .



Natural Law Theories

[a]ll the modifications, all the restrictions, in brief, all the changes which must be made in the strictness of the natural law when applied to the affairs of nations, whence results the Voluntary Law of Nations [. . .] may all be deduced from the natural liberty of nations; from consideration of their common welfare; from their reciprocal duties; and from the distinction between internal and external, perfect and imperfect rights.⁹⁵

Thus to the liberty of nation states is added a fresh application of the distinction originally found in Wolff’s Jus Naturae between perfect and imperfect duties under natural law. As we have already seen in this chapter, Wolff’s natural law theory had employed this distinction to express the two paths by which the individual should pursue Vollkommenheit, the one perfect because enjoining obedience to conscience, the other requiring obedience to civil contracts and therefore imperfect in comparison. These appear under a different guise in Vattel as the voluntary and necessary law of nations. In his view there was a valid analogy between the perfect obligation of conscience and the internal rights of a nation, and the imperfect obligations of the individual and the external rights of nations: The necessary Law of Nations and the voluntary law have therefore both been established by nature, but each in his own way: the former as a sacred law to be respected and obeyed by Nations and sovereigns in all their actions; the latter as rule of conduct which the common good and welfare oblige them to accept in their mutual intercourse.⁹⁶

The necessary law is binding but ultimately unenforceable, relying on the conscience of the state (as, in the most obvious example, in the keeping of pacts and treaties); whereas the voluntary law, by its contractual nature, is binding only so long as the terms of the contract are upheld by both parties. Much of Vattel’s book is therefore a demonstration of how one distinguishes between the necessary and voluntary law of nations; indeed, with the exception of the theoretical premises apart, the detailed examination of the laws of war, treaties, and the legal obligations governing commerce draws very heavily upon Wolff’s Jus Gentium.⁹⁷ As one would expect, Vattel defines the necessary law governing a state’s international obligations and rights in the most benevolent terms; but the voluntary law tends simply to reflect current state practice in all its sordid self-seeking. This is especially the case in reference to com⁹⁵ Vattel, Le Droit des Gens, pre´face, p. a. ⁹⁶ Ibid., p. a. ⁹⁷ The first nine chapters of Wolff all go to form at least a part of each of the four books of Vattel’s work: see H. Wheaton, History of the Law of Nations in Europe and America (New York, ), p. .

Christian Wolff



merce, precedence, self-defence and intervention, and the rights of necessity and of innocent use.⁹⁸ But perhaps the most notable example of the attempt to distinguish between what was justifiable, and what was permissible was Vattel’s treatment of the laws of war. The necessary law of nations only belonged to states for their defence and for the maintenance of their existing rights. In other words the necessary law embodied traditional just war doctrine: War cannot be just on both sides. One party claims a right, the other disputes the justice of the claim . . . when two persons dispute the truth of a proposition it is impossible that the two contrary opinions should be at the same time true.⁹⁹

However, these stipulations do not take regard of present circumstances, and in his voluntary law of war Vattel shifts the ground of the argument and proposes three rules to govern disputes: first, states must be judged on the legality of the means of war they employ rather than on the justice of the cause – for if states are ethically independent entities then it is logically impossible to judge between the justice of the causes they espouse. If this principle of the equivalence of just causes is accepted, then, secondly, all acts that are themselves permissible in war must be permitted to both sides. Thirdly, he stresses that the voluntary law is a convenience and a recognition of necessity that does not exempt a state from the perfect duties enjoined by the necessary law of nations: [t]he avoidance of greater evils does not confer upon him whose cause is unjust any true rights capable of justifying his conduct and appeasing his conscience, but merely makes his conduct legal in the sight of men and exempts him from punishment.¹⁰⁰

As will be apparent, this distinction between a necessary and voluntary law of nations is effectively an endorsement of current practice camouflaged by the supposedly self-enforcing sanction of conscience. This is the case throughout Vattel’s work: his attempt to recast Wolff’s theoretical foundations founders on the question of how the independent sovereign state is to be constrained to obey a common international law. What in essence Vattel proposes is that the conscience of a sovereign must be allowed to take its bearings from political facts rather than moral laws and that the amelioration of international strife is more likely to occur by allowing calculations of raison d’e´tat to have weight than through excluding them. ⁹⁸ See Ruddy, International Law, pp. –. ¹⁰⁰ Ibid., book III, §, p. .

⁹⁹ Vattel, Le Droit des Gens, book III, §, p. .



Natural Law Theories

This dramatic series of concessions to empirical political reality, together with the systematic aspirations of the treatise, and the author’s lucid style ensured a wide readership for Le Droit des Gens. Between  and  there were twenty French editions of the book, with ten translations in England between  and , and eighteen translations or reprints in the United States up to . In the same period Grotius appeared in only one further edition and translation.¹⁰¹ Vattel told professional diplomats what they wanted to hear with the aid of everyday political examples. Vattel was still cited copiously and approvingly in the diplomatic submissions of the Vatican Secretary of State, Cardinal Consalvi, at the Congress of Vienna – perhaps the highest compliment that could be paid not merely to his lucidity and accessibility, but also to the erastianism of the system which his system helped to foster.¹⁰² This ability to be cited by all sides is indicative of his transitional position between a deductive tradition of interpreting international relations and the more positivist and empirical method that became accepted in the nineteenth century. As his treatise began to displace those of Grotius and Pufendorf as a source of authority in this area it became common practice to associate Grotius and Pufendorf with Vattel and accept his assessment of their intellectual relationship to him: For Hugo Grotius, Pufendorf, Vattel and the rest (sorry comforters as they are) are still dutifully quoted in justification of military aggression, although their philosophically or diplomatically formulated codes do not and cannot have the slightest legal force, since states as such are not subject to a common external constraint.¹⁰³

This judgement of Kant’s in Perpetual Peace vividly illustrates the extent to which by  the whole of the natural law school’s reading of international relations was assimilated to the project of Vattel. Now that Grotius and Pufendorf were not understood on their own terms, they were categorised incorrectly according to the views of their last major follower. Here we have one of the main explanations for the nineteenth century’s misplacing of early modern natural law theories as merely progenitors of the modern study of international law, an interpretation that has persisted well into this century. As recently as  the jurist Lauterpacht could write in an influential article in the following complacent terms: ¹⁰¹ See ibid., ‘Introduction’ by A. de Lapradelle, pp. lvi–lix. ¹⁰² See J. M. Robinson, Cardinal Consalvi: – (London, ), p. . ¹⁰³ Kant, I., Kant’s Political Writings, ed. H. Reiss, trans. H. B. Nisbet (Cambridge, , nd edn), p. .

Christian Wolff



In fact, one of the most decisive features of the teaching of Grotius is the close analogy of legal and moral rules governing the conduct of States and individuals alike . . . This analogy of States and individuals has proved a beneficent weapon in the armoury of international progress . . . Vattel, writing in , apparently gave emphatic and lucid expression to this analogy, thus conceived, of States and individuals.¹⁰⁴

Debate around early modern natural law theories atrophied in juridical circles in the form it had reached with Vattel just when historical understanding of the true nature of the Grotian project had already begun to fade. That understanding is still in the process of being rediscovered.                                       We have seen earlier how Wolff regarded eclectic philosophy as inferior to systematic philosophy because it did not succeed in uniting the fruit of its independent selection from the past and reflection on the present into a unified and harmonious system, a goal which he believed he had succeeded in attaining.¹⁰⁵ Despite the attempt by Brucker to integrate Wolff’s natural law theory with eclecticism, it was nevertheless the imposing edifice of Wolff’s two series of textbooks that set the terms of the debate over how eclecticism should be interpreted even for those most opposed to the Wolffian system. Even a Thomasian pietist, such as Christian August Crusius (–), who produced some of the most telling criticisms of the ‘Leibnizian–Wolffian’ philosophy did so without referring in detail to eclecticism or the ‘history of morality’. Eclecticism had been superseded by a new orthodoxy that claimed to subsume its rival within its capacious systematic and theoretical outreach and also outflank it by its equal appeal to and symmetry with existing university courses, bureaucratic assumptions and governmental priorities. Wolffianism required more than the pinpricks of eclectic criticism to be placed under pressure once it had achieved supremacy as the orthodox textbook tradition within universities, especially as that university appeal extended into Catholic Europe, going well beyond the Protestant purlieus of North Germany where eclecticism had been entrenched. Crusius was among the most perceptive of those commentators who straddled a pietist background and the modern Wolffian revision of Leibnizian rationalism. Indeed, his key role as a transitional figure was ¹⁰⁴ H. Lauterpacht, ‘The Grotian tradition in international law’, British Yearbook of International Law,  (), p. . ¹⁰⁵ See C. Wolff, Vernu¨ nftige Gedancken von GOTT, der Welt und der Seele des Menschen, auch allen Dingen u¨ berhaupt (Hildesheim and New York, ), reprint of Frankfurt/Main edition , p. .



Natural Law Theories

not lost on Immanuel Kant, for whom Crusius was always one of his chief points of reference, or for that matter on C. F. Sta¨ udlin, the leading historian of philosophy from a Kantian perspective. It is therefore useful to examine briefly the structure of Crusius’ critique of Wolff, as an index of the eclipse of eclecticism and the reintegration of the pietist and rationalist approaches to natural law theory, a process that was, of course, to be completed by Kant himself.¹⁰⁶ Although a professor both of philosophy and theology in the course of his career, Crusius’ commitment was above all to the defence of the Lutheran Church, to whose service he devoted himself completely after . His philosophical work therefore rests mostly on two early books which attempt to create an alternative epistemology to Wolff’s with a far more attenuated concept of the scope of human reason: Anweisung, vernu¨ nftig zu Leben (Guide to Reasonable Living) () and Entwurf der nothwendigen Vernunft-Wahrheiten (Sketch of the Necessary Truths of Reason) (). In these writings he defends the freedom of the will from what he sees as the destructive determinism introduced by Wolff’s notion that human beings are bound to use their reason to pursue perfection. He distinguishes man from the rest of creation (which he accepts may operate on determinist principles), and suggests that human reason is better characterised as sufficient rather than necessary in its field of operation.¹⁰⁷ On this basis reason can operate in liaison with freedom of the will, and space is opened up for reintroducing love of God as the standard for human moral action rather than the pursuit of rational perfection. God has provided us with a conscience that assists us in achieving virtue, and therefore our highest duty is to honour and obey God’s commands. An assault upon the Wolffian account of reason therefore is made to yield a comfortingly conventional Lutheran conclusion, suffused with pietist pessimism as to the outreach of unassisted human reason. Wolff’s mathematical method had simply offered an artificial set of definitions that could not deliver up any true clarity of concepts. It is experience that leads us to the most probable form of knowledge, and ¹⁰⁶ Crusius remains an understudied figure in his own right, although Kant’s study of him has been extensively scrutinised: the best recent analysis of Crusius’ work is provided in Schneewind, The Invention of Autonomy, pp. –, and there is also a useful survey in L. W. Beck, ‘From Leibniz to Kant’, in R. C. Solomon and K. M. Higgis (eds.), Routledge History of Philosophy: the Age of German Idealism (London, ), pp. –. See also M. Benden, Christian August Crusius. Wille und Verstand als Prinzipien des Handelns (Bonn, ) and S. Carboncini, ‘Christian August Crusius und die Leibniz–Wolffsche Philosophie’, Studia Leibnitiana Supplementa,  (), pp. –. ¹⁰⁷ C. A. Crusius, Anweisung, vernu¨ nftig zu Leben (Leipzig, ), p. .

Christian Wolff



should there be a division between the conclusions of rational thought and those of experience, we should fall back upon our consciousness of inner truth given to us by God to decide the issue. Like Thomasius, Crusius believes that the will is superior to the understanding, and should therefore be the main focus of philosophical scrutiny, a point ignored by Leibniz and Wolff, whose pursuit of Vollkommenheit rests upon the very corruption and error introduced into the intellect by the will.¹⁰⁸ What they vaunt as a pattern of perfected virtue and perpetuated error brought about by individual moral action is in fact predetermined in human nature, thus removing the possibility of free will, and leaving unanswered the crucial question of how principles of right conduct could in fact be derived from the will, and then generalised.¹⁰⁹ Unlike previous pietist critics of Wolff, such as Buddeus and Lange, who had contented themselves with broad-brush attacks on the overall system, Crusius analysed it in detail, and from within, fully at ease with its intimidating metaphysical vocabulary.¹¹⁰ From his unintegrated heritage of pietist and Thomasian notions, Crusius achieves a notable reconciliation, whereby the pietist duty to love God’s will as the standard of perfect goodness is combined with free will notions taken from the account of God’s relations with man found in Pufendorf and Thomasius. The result is a moral epistemology that reintegrates God and human beings who exercise their intellects with free will. By this means, the tradition of Pufendorf and Thomasius is placed in touch again with orthodox theology, and it is Leibniz and Wolff who are now made to seem the outlandish determinists at odds with the emerging philosophical trends. Kant was therefore able to find much that was congenial to him in Crusius, whom he labelled as one of the ‘theological moralists’ who were right to hold that objective moral standards could be obtained by the exercise of free will, falling short only in their belief that it was the will of God as opposed to that of man that offered the standard of moral truth.¹¹¹ Crusius is therefore an interesting transitional figure in a number of respects. He is still indebted to pietism, without endorsing the crude ¹⁰⁸ Crusius’ account of the relationship between the will and the understanding is developed in his dissertations De corruptelis intellectus a voluntate pendentibus (Leipzig, ), and De appetitibus insitis voluntatis humanae (Leipzig, ). ¹⁰⁹ This interpretation is indebted to the valuable and neglected analysis of the texts provided by S. Carboncini, Tranzendentale Wahrheit und Traum. Christian Wolffs Antwort auf die Herausforderung durch den Cartesianischen Zweifel (Stuttgart and Bad Cannstatt, ), pp. –. ¹¹⁰ The first work in which Crusius develops his critique of Leibniz and Wolff is Dissertatio philosophica de usu et limitibus principii rationis determinantis, vulgo sufficientis (Leipzig, ). ¹¹¹ See I. Kant, Critique of Practical Reason, trans. L. W. Beck (New York, ), p. .



Natural Law Theories

anti-Wolffianism of Buddeus and Lange; he follows Thomasius in his account of the corruption of the human understanding, while also seeking to create a ‘philosophical Encyclopaedia’ that would include substantial elements of Wolffian philosophy; he appears to endorse the eclectic principles of freedom from prejudices, judicious selection of authorities, independent judgement and refutation of sectarianism, while no longer associating himself with the priorities and disciplinary focus of the earlier eclectics. Instead, he wrote systematic logical and metaphysical works that sought to refute Wolffian error systematically, matching like with like.¹¹² In this kind of endeavour eclecticism could not really assist, for its own high estimate of what man can achieve unaided now played instead into the hands of the newly orthodox view that the Wolffian system represented an over-elaborated form of rationalism. Opponents of Wolff who stemmed from a Thomasian–pietist background could no longer use the high claims made on behalf of human understanding as part of their case: the rhetoric rather than the substance of eclecticism was what remained. In the era before Kant it is therefore fair to say that in two ways eclecticism began to encounter a terminal eclipse: the Wolffians scorned its methodological presuppositions, and it was Wolff’s philosophical vocabulary that came to dominate in all institutional discussion of moral philosophy, whatever the position adopted towards it. For their part, the remaining Thomasians and pietists, like Crusius, found no supportive resonance in eclecticism’s association with voluntarist natural law theory, itself unhelpful to their attempt to defend the freedom of the will. These factors go some way to explain the relatively nonchalant fashion in which Kant was able to consign it to the archival recesses of the history of philosophy. ¹¹² S. Carboncini, ‘Die thomasianisch-pietistische Tradition und ihre Fortsetzung durch Christian August Crusius’, in Schneiders, Christian Thomasius –, pp. –. Crusius’ admiration for eclectic themes is expressed in his Dissertatio philosophica de usu, p.  (unnumbered), in language reminiscent of Thomasius’ Introductio ad Philosophiam Aulicam.

 

Conclusion: the end of the ‘history of morality’ in Germany

                      While it was clear that the direct and indirect influence of both eclecticism and (to a lesser extent) natural jurisprudence was dissipating in German universities by the middle of the eighteenth century, the rapid occlusion of the former and the mutation of the latter under the impact of the Critical Philosophy at the end of the century are still somewhat puzzling features of the history of philosophy. For recent attempts to examine the non-Kantian alternatives that began to put down roots in the s and s have shown that there was still a role for eclecticism to play within the critiques that coalesced around the Leibnizian– Wolffian orthodoxy. Nowhere is this more evident than in the work of the so-called Popularphilosophen, above all Isaak Iselin (–), Moses Mendelssohn (–), Christian Garve (–), Christoph Meiners (–) and J. G. H. Feder (–).¹ As Van der Zande has noted, popular philosophy rested on more than simply a cocktail of Wolffian rationalism, Locke and Scottish common-sense philosophy. Indeed, it had as its goal the large ambition of ‘the ethical-cultural formation of man and citizen’ that was reminiscent in some respects of the educational ambitions of Thomasius.² These writers wished to take philosophy outside the university and so widen its ambit to include rhetorical, aesthetic and literary topics. By so doing an escape could be provided from the perceived dead end of introverted, recurrently scholastic debates that did not engage with the ¹ For a recent review of the whole phenomenon of ‘popular’ philosophy between Wolff and Kant, see J. Van der Zande, ‘In the image of Cicero: German philosophy between Kant and Wolff’, Journal of the History of Ideas,  (), pp. –. See also D. Bachmann-Medick, Die a¨sthetische Ordnung des Handelns. Moralphilosophie und A¨sthetik in der Popularphilosophie des . Jahrhunderts (Stuttgart, ), for a general study, and F. Beiser, The Fate of Reason: German Philosophy from Kant to Fichte (Cambridge, ), ch. , for a clear and effective account of their dispute with Kant and its ramifications. ² Van der Zande, ‘In the image of Cicero’, p. .





Natural Law Theories

important issues to which philosophy should be contributing in the emerging German public sphere. It was for this reason that Cicero once more became an emblematic figure, above all in the work of Christian Garve, who produced a massive critical commentary upon the De Officiis.³ In this work and others he presented Cicero’s ethics as an archetype of engaged practical thought and civic formation to which he believed all ‘popular’ philosophers should aspire. There was a role for eclecticism reserved in this framework, one created as much by the polemical focus upon empiricism within ‘popular philosophy’, as by scrutiny of the eclectic tradition. This is evidenced in Garve’s reading of Cicero’s text, which presents the work as a timelessly relevant guide to the virtuous life, providing a full account of practical philosophy for the educated non-specialist, and allowing the reader to assess rival ethical views, before coming to his own conclusions.⁴ It is made even clearer in the same author’s essay, ‘Einige Beobachtungen u¨ ber die Kunst zu Denken’ (‘Some observations on the art of thinking’) (), where he deploys the image of the strolling philosopher to show that the observational method – and especially when applied to historical phenomena – can be just as successful in philosophy as rigorous system.⁵ Rational judgement based on evidence, and expressed in clear, lucid language, was a feature of human life accessible to all, and not the preserve of a narrow specialised, university elite. Thus many of the ‘popular’ philosophers explicitly identify themselves as eclectics, not because they shared in detail the goals or interests of the writers of the early eighteenth century, but because eclecticism seemed an established and ready-made shell within which they could house their own version of Socratic doubt, that allowed for degrees of probable knowledge, and left room for scepticism too. Therein lay true freedom of thought, according to Garve, Meiners and Feder.⁶ On this account it should be apparent that the basis of dispute between Kant and his opponents went deeper than the ripples caused by the notorious review by Feder and Garve of the First Critique – the review that had dismissed the work as a revival of Berkeleyan idealism. For the ³ See the analysis by J. Van der Zande, ‘The microscope of experience: Christian Garve’s translation of Cicero’s De Officiis ()’, Journal of the History of Ideas,  (), pp. –. For a full account of Garve’s role in transmitting English and Scottish thought see Oz-Salzberger, Translating the Enlightenment, ch. , pp. –. ⁴ Van der Zande, ‘The microscope of experience’, p. . ⁵ C. Garve, ‘Einige Beobachtungen u¨ ber die Kunst zu Denken’, in Versuche u¨ ber verschiedene Gegensta¨ nde aus der Moral, der Litteratur und dem gesellschaftlichen Leben,  vols. (Breslau, –), pp. –. ⁶ For a full exposition of the advantages of the eclectic approach by a Popularphilosoph see C. Meiners, Revision der Philosophie (Go¨ ttingen and Gotha, ), pp. –.

The end of the ‘history of morality’



Popularphilosophen, Kantian philosophy was anathema for its foundational rigour, for its deliberate rhetorical obscurity, for its distaste of arguments in philosophy based upon examples, and also for its determined relocation of philosophy within the grid of the university’s traditional pattern of faculties. While, for his part, Kant and his followers disdained what they considered the amateurism of their opponents that elegantly pirouetted around taxing epistemological issues and sought to popularise philosophy before its principles and foundations were properly clarified. The espousal of eclecticism by writers such as Garve and Meiners only served to diminish further its appeal to Kant, and to relegate it to the sphere of belles lettres. As we shall see, this was accompanied by a new notion of philosophy’s proper place within the university: hardly a return to the real but subordinate place envisaged by Thomasius, but a determined attempt to map out a new formative public role for philosophy within the hollow kernel of the state-supported university. This was not a turning away from the world of publicity and public involvement in the way Kant’s career is still sometimes interpreted, but an ambitious attempt at a revolution from within.   ,                 The attention of historians has recently focused on the way in which Kant’s concept of the public intellectual role for philosophy shifted in the s under the impact of the Wo¨ llner decrees and the limits placed on the scope of enlightened publicity after the death of Frederick II.⁷ However, many of the ideas that were to find their place in The Contest of the Faculties were already present in the s during his period of close cooperation with the previous and more liberal Prussian minister of education, Baron Karl Abraham von Zedlitz (–). In particular, his high sense of the potential role that could be played by philosophy in the hierarchy of university faculties stemmed directly from initiatives that had begun in , with the publication of Frederick’s Letter on Education.⁸ ⁷ See, for example, the superb survey in S. Lestition, ‘Kant and the end of the Enlightenment in Prussia’, Journal of Modern History,  (), pp. –, and also J. C. Laursen, The Politics of Skepticism in the Ancients, Montaigne, Hume and Kant (Leiden, New York and Cologne, ), ch. . ⁸ Of the few instances of administrative innovation in the otherwise conservative and regressive period of Prussian reconstruction after , the work of Ernst von Mu¨ nchhausen and Karl von Zedlitz, the two ministers who between them headed the Departments of Justice and Ecclesiastical Affairs between  and , is perhaps the most notable. Complex sub-division of these departments and reallocation of responsibilities within them allowed central government to impose a reform agenda in education which had an important impact in both universities and schools.



Natural Law Theories

In this work, which marked a move away from the reform of primary education (the focus of the s), and which was sent to the Department for Ecclesiastical Affairs (which controlled higher education) as a plan for action, the king complained that while many of the private high schools as well as the four leading universities of Halle, Frankfurt an der Oder, Ko¨ nigsberg and Duisburg had capable teachers, they did not encourage independent thought: the only thing one can reproach them with is that they stuff the heads of their pupils full of information instead of training them to think for themselves; they do not form their judgement early enough and they neglect to instil them with ambition or noble and virtuous principles.⁹

But he emphasised that this did not mean that he wanted to have such principles taught by clerics. The opportunity to begin such reforms began in  when all the universities were placed for the first time under the direct control of Zedlitz, thus creating an effective unified ministry of education in Prussia for the first time. What was desired by both Frederick and Zedlitz was a policy of Gleichgewicht, which has been defined by Van Horn Melton as ‘a balancing of productive forces’ or consolidation of every class, corporation and professional group within the state, thus maximising the state’s efficiency and economic output.¹⁰ In the field of education this meant that everyone should have the education appropriate for their social background, with compulsory primary schooling for all, but a university education reserved for those from propertied or professional backgrounds. This view was clearly articulated by Zedlitz in an essay published in the Berlinische Monatsschrift in : It is madness to provide a future tailor, cabinet maker or shopkeeper with the same education as a future school rector or consistory official. The peasant The Departments of Justice and Ecclesiastical Affairs combined an odd mixture of policy areas, including all educational and clerical matters (whether Lutheran, Calvinist or Catholic) with the addition of the administration of the justice system. These might look like still waters, but in the s and s under the impetus of the Miller Arnold affair and the king’s demand for a thorough overhaul of primary and higher education, they became the cutting edge of the Prussian government. It is especially surprising that coherent policy formation was possible in this field given that throughout the period there was a rival Calvinist minister responsible for looking after Calvinist educational institutions; but the king’s interventions and the dominant personalities of the two Lutheran ministers seemed to have avoided administrative conflicts and blockage of reform. ⁹ Quoted in W. Hubatsch, Frederick the Great of Prussia: Absolutism and Administration (London, ), p. . ¹⁰ J. Van Horn Melton, Absolutism and the Eighteenth Century Origins of Compulsory Schooling in Prussia and Austria (Cambridge, ), p. .

The end of the ‘history of morality’



must be educated differently from the future artisan, who must in turn have an education different from the future scholar, or youth destined for higher office.¹¹

In practice this meant for the universities that matriculation should be restricted to those whom the government considered suitable to receive higher education. This was achieved by setting provincial high school colleges (Ober-Schulkollegien) to act as filters and introducing the Abitur as the obligatory qualification for university entrance. Next, Zedlitz worked to ensure that lectures and textbooks were directed precisely at professional targets, purging pietist influence wherever possible (as a distraction from professional formation), and holding up the worldly intellectual flexibility of Go¨ ttingen as an ideal of emulation. These measures were driven home with especial vigour at Halle of which Zedlitz was an alumnus. This was the first major series of reforms that the Prussian universities had been unable to circumvent since the fundamental curricular and faculty reforms of Melanchthon that had united Aristotelian and Protestant dogmas as the governing intellectual framework for the four main faculties. It was a much more thorough reform than any of the efforts inspired by Thomasius. Zedlitz was particularly well suited to push these reforms through because he was well connected both within the government and in enlightened circles. Born in  in Brieg in Silesia, he was trained in law at Halle, and quickly became the leading judge in his home town. He was then moved to Berlin and a series of rapid promotions followed. His own independence of action was achieved during the Miller Arnold affair when as Minister of Justice he was the only judicial authority to stand up to Frederick, by pointing out quite correctly that while the king had the power to vary penalties he could not decide for himself whether or not a particular offence constituted a crime. Moreover, he refused to countersign Frederick’s order to imprison the seven judges at the heart of the case. He suffered no penalties for this action, and remained in office beyond Frederick’s death. But his influence extended well beyond the government too. His secretary, Johann Biester (–), was editor of the Berlinische Monatsschrift, giving Zedlitz effective control over the main outlet of ¹¹ Quoted in ibid., pp. –, n. . This reinforces views expressed in Frederick’s Letter on Education (), where he argued that educational policy was seen as a crucial mechanism for enforcing social equilibrium so that the bourgeoisie would not wish to acquire noble estates, the nobles would not seek to buy up peasant plots of land or participate in bourgeois professions, and peasants would not need to migrate to cities.



Natural Law Theories

enlightened opinion in Berlin, and a platform for the dissemination of his own policies and ideas. His intellectual priorities were well known to include the reform of the university syllabus to promote the lowly propaedeutic faculty of philosophy into a supervisory role for the other three, providing training in the art of practical thinking which could encourage students into independence of thought, in line with Frederick’s recommendations, and allow them to formulate guiding principles with which to organise the miscellaneous information that they had derived from the study of the vocational faculties. Much of his work was directed in the s towards east Prussia and Polish Prussia where educational integration was a priority after the First Partition and for which Frederick provided (exceptionally) considerable financial resources. In Immanuel Kant he found a willing and useful ally who shared and advocated many of the same reform measures, and especially those relating to the relations between the faculties.¹² Kant is sometimes still viewed as the archetypal apolitical professor of philosophy: the man of regular and reclusive study who barely travelled at all, devoid of actual as opposed to theoretical political commitments, whose work should simply be read as a profound series of meditations on metaphysics or ethics disturbed or influenced only by his reading of equally great contemporaries, notably Hume, Rousseau, Mendelssohn or Herder. He himself, of course, did much to encourage this impression, never missing an occasion to mention his ill health and his absolute need for peace and quiet and solitude. His pupils encouraged it, too, in their account of the gestation of the Critical Philosophy, born of ten years of philosophical seclusion and sifting of earlier work. And modern historians of philosophy perpetuate it in their determination to read the canonical works in relative isolation from the university context that had produced them. This is an interpretation that not only denies the simple fact that like all professors Kant was a civil servant and employee of the state, but also elides the elaborate lengths to which he went to influence and support the education policies of Frederician Prussia. In fact his commitment to Zedlitz and his ministry’s concept of the right role for public reason was fundamental to his last major work, The Contest of the Faculties, which stands as an eloquent memorial to and embodiment of Frederician policy higher education policy, and a rebuke to the clerical conservatism of Frederick William II and his education minister, Wo¨ llner. ¹² For the details of Zedlitz’s career see P. Manke, Karl Abraham von Zedlitz und Leipe (–). Ein schlesischer Adliger in Diensten Friedrichs II und Friedrich Wilhelms II von Preussen (Berlin, ).

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Kant’s career prospects were at the mercy of politics from the start: the move from being a poorly paid private tutor who taught at home to the economic security of a chair at the Albertus University depended on both patronage and what those who today work in Brussels and Strasbourg would call pistonnage. In  when the Russians were in occupation of east Prussia, he tried to turn this unpredictability to his advantage by sending letters of application for the chair of logic to both Frederick the Great and the Tsarina Elizabeth. Sadly, the Russian governor of Ko¨ nigsberg appointed a more senior person on the advice of the university Senate, thus displaying that conservatism in small things which is all too typical of occupying forces. Kant eventually obtained the chair of logic and metaphysics in , and it was shortly after this that he first came to the attention of the newly appointed Zedlitz. In conventional accounts of Kant’s life, the s are represented as the period of meditation and withdrawal in preparation for the Critical Philosophy. But in fact he remained very busy with other projects too which had unexpected influences upon the First Critique itself. He maintained his full lecture schedule throughout the decade, and much his most popular courses were those on anthropology and physical geography which he gave in every academic session. This popularity is difficult to recover now because they were only published at the very end of his life, when he was reliant on the clumsy editorial work of his students. But these were just the sort of lively, practical informative courses that Zedlitz wanted to encourage, and he urged Kant to do more work on physical geography that would complement the new institute of cartography that Zedlitz was setting up in Berlin.¹³ In  Kant also gave a series of lectures on the science of mineralogy at Zedlitz’s request because Frederick the Great had become convinced that gold was to be found in Further Pomerania and it suddenly became a priority for professors to lecture on mining and geology. This series unites philosophy and politics, though, in that there may possibly be a connection between Kant’s description of the organic growth of crystal structures and his account of the formation of concepts in the mind, as presented in the First Critique, which, of course, he was completing at the same time, and which was ultimately dedicated to Zedlitz. So one should not make the mistake of thinking that Kant’s relatively isolated position in Ko¨ nigsberg cut him off from intellectual ¹³ It is worth noting in passing that the lectures on ‘physical geography’ had already provided a refuge for Kant in earlier times of trouble; for during the Russian occupation they had been a great success with the occupying garrison, especially the lectures on the principles of fortification.



Natural Law Theories

developments elsewhere in Prussia. Not only was his network of correspondents considerable, but he was careful to place his pupils in positions where they could disseminate his doctrines influentially. No one was more important in this respect than Marcus Herz (–), who had studied with Kant between  and  before moving to Berlin to carve out a medical career for himself. He supplemented his income with regular series of lectures on Kant’s philosophy, mainly focusing on the logic of the pre-Critical era, but also giving tantalising glimpses of the emergence of the new metaphysics of the Critical Philosophy which were fed to him by Kant himself. As Herz records in a letter of November  these lectures attracted the attention of the Berlin intellectual elite, including Zedlitz himself: The number of people in my audience grows daily . . . all of them people of high status or profession. Professors of medicine, preachers, lawyers, government administrators, and so on, of whom our worthy minister [Zedlitz] is the leading one; he is always the first to arrive and the last to leave, and until now he has not missed a single session.¹⁴

It was probably these lectures that convinced Zedlitz that Kant should be more closely involved in his plans for the reform of Prussian education. In a sequence of letters written in  he tried to woo Kant away from east Prussia and persuade him to accept a more prestigious and senior chair of philosophy at Halle, which was then the main focus of Zedlitz’s reforming efforts and where he needed internal allies. But neither the inducements of a higher salary, nor the title of Hofrat, nor the fact that he could hope for no further prospects at Ko¨ nigsberg would shift Kant. The minister’s esteem for Kant’s abilities comes through in the range of arguments he used in their correspondence; indeed at one point he urges Kant to remember his duty as a civil servant in the following terms: I would like you to be not unmindful of your duty to be as useful as you could be, in the opportunity which is afforded to you, and to consider that the , to , students at Halle have a right to further their education, which I do not want to be responsible for neglecting through you.¹⁵ ¹⁴ Kants gesammelte Schriften, edited by the Royal Prussian Academy of Sciences and later Academies,  vols. (Berlin, –), X, Kants Briefwechsel, I, M. Herz to I. Kant,  November , p.  (trans. in Kant’s Philosophical Correspondence, –, ed. A. Zweig (Chicago and London, ), p. ). Further references to this standard edition of Kant’s works will be in the form AA (i.e. Akademie Ausgabe). On Herz’ role as Kant’s mediator in Berlin see M. L. Davies, Identity or History: Marcus Herz and the End of the Enlightenment (Detroit, ). ¹⁵ See K. Vorla¨ nder, Immanuel Kant. Der Mann und das Werk (Hamburg, ), part II, pp. –.

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Finally he changes his tack, and gives Kant a more informal brief to provide suggestions for increasing the teaching of philosophy for those students taking other disciplines, which provide no opportunity for general reflection. In this injunction we may have the germ of the work that would later become Der Streit der Faculta¨ ten (The Contest of the Faculties), although it was not finally published until , a date which disguises the extent to which it remains a statement of broad intellectual priorities originally established in the s and s.¹⁶ The close relationship between minister and philosopher continued throughout the remaining years of Frederick the Great’s reign: Zedlitz was indeed the dedicatee of the First Critique – one of the few cases, perhaps, where we can be fairly sure that a minister of education not only read but approved a work of systematic philosophy dedicated to him. Kant’s prestige in Berlin was boosted further by his involvement in the Academy of Sciences, which made him a Corresponding Fellow two years after the publication of Was ist Aufkla¨ rung?. Official favour continued into the new reign until Zedlitz was dismissed, and Kant even found himself playing a role in the coronation of Frederick William II in Ko¨ nigsberg in , a year when he was rector of the university.¹⁷ With the publication and subsequent dissemination of the three Critiques, Kant hoped self-consciously to overthrow the traditionally subservient preparatory role of the teaching of philosophy in German universities. The Contest of the Faculties was a natural capstone to his career because it provided an account of how the Critical Philosophy should operate in a university where medicine, law and theology were also taught. He suggested that philosophy’s value was expressly nonutilitarian because it pursued truth not usefulness. While the government had to regulate the so-called ‘higher’ faculties because their work directly affected the people, the government had no role in regulating philosophy, where reason ruled. Philosophy was in fact the institutional ¹⁶ It is noteworthy that these exchanges occurred at the same time as Kant’s preoccupation with the reform of pedagogic techniques at schools and universities. His enthusiasm for the Dessauer Philanthropin of J. B. Basedow, with its attempt to introduce the lessons of Rousseau’s Emile to the classroom, gave him the confidence to suggest similar reforms in university pedagogy because he believed it embodied the discovery of the key normative principles of teaching practice which in turn deserved to be supported by the state (see H. F. Klemme (ed.), Die Schule Immanuel Kants (Hamburg, ), pp. –). ¹⁷ For Kant’s role as rector and his avoidance of much of the ceremony of  see Vorla¨ nder, Immanuel Kant, part II, pp. –. One may suppose that Kant’s view of the occasion was closer to Frederick the Great’s, who had refused coronation in east Prussia, and opined that ‘a crown is simply a hat that lets the rain in’.



Natural Law Theories

correlate of Kant’s bounded concept of free speech: philosophy’s private pursuit of pure scholarship (i.e. internal to the university) entitled it to judge and pronounce upon the activities of the other faculties. The humblest faculty was in fact the only one that could generate a unifying abstract metaphysics that could unite and underpin the whole project of a university and recover – in ethics and aesthetics at least – some of the ground that had been lost in the course of the eighteenth century to fissiparous empiricism and the relativism that flowed from it. Thus the faculties might harmlessly ‘contest’ with one another free from interference by the government. Kant’s high notion of the role of philosophy – ‘gatekeeper’ (if you like) turned poacher – spread quickly among the Protestant universities of Germany, partly because of shrewd and skilful action by his pupils, but also because it met a perceived need to reintegrate the spectrum of subjects and sub-divisions of knowledge pursued at university level, and unite Newtonianism once again with a concept of divine order. But a further important reason for its success was the support and patronage it received from the Department of Ecclesiastical Affairs under Zedlitz and the reform principles enunciated by Frederick the Great himself, which were, of course, aimed particularly at the three ‘higher’ faculties and left space for Kant to project his superficially modest, but in fact grandly ambitious, unifying role for philosophy. The intellectually francophile Frederick the Great had set in motion an education policy that indirectly offered a unique opportunity for German philosophy to reassert its position within the microcosm of university structures under the protective umbrella offered by the state. As for Kant himself, he had seen an opportunity to use the government’s sense of priorities to liberate philosophy, not merely from interference from the theology faculty, but also from the faculties of medicine and law as well – another way in which his approach to university life distanced him from the earlier efforts of the followers of Thomasius. In the general introduction to The Contest of the Faculties he suggests that nothing except confusion and argument would result from trying to deduce normative principles from empirical materials. For Kant, the jurist’s approach will inevitably be that of trying to deduce general principles from the law of the land, whereas properly it was the role of the philosophy to identify the background a priori principles of moral philosophy. While the state required the lawyers to make the current law codes their proper object of study, philosophy should be freed from such restrictions. Philosophy served the cause of

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

truth, whereas the other three faculties existed to serve the utility of the government.¹⁸ As we have seen, it was one of the major features of the early German Enlightenment to have replaced the theology faculty with the law faculty as the predominant faculty, an achievement for which Christian Thomasius deserves the greatest credit. But in the later Enlightenment, with Kant as main instigator, this institutional position shifted once more, but this time in favour of the philosophy faculty. Under the impact of the Humboldt reforms in the early nineteenth century, the earlier creative contribution that flowed from the elevation of jurisprudence was occluded.¹⁹ But if we wish to explain how it was that German universities became gradually more focused on research-based, methodologically self-conscious disciplines in which the values of idealist philosophy, and historical and philological science were recognised to mutual benefit, then the earlier part of the story, focused on eclecticism and natural law needs to be recognised too. A large part of the process by which university disciplines moved away from being mere encylopedic erudition and classification of empirical data, and became open to the free exercise of rational critical thought, took place within the eclecticism of the Fru¨ haufkla¨ rung.²⁰   ,                                  Kant wrote little that directly engaged with the authors of the ‘modern’ natural law tradition, although he regularly lectured from Achenwall’s Wolffian textbook on natural law.²¹ He was above all a teacher of logic and metaphysics, and not jurisprudence. Yet the arguments on moral ¹⁸ AA, VII, Der Streit der Faculta¨ ten, p. . ¹⁹ See N. Hammerstein, ‘The Enlightenment’, in de Ridder-Symoens, Universities in Early Modern Europe, pp. –, where it is argued that the elevation of philosophy at the expense of the other faculties is a feature of those countries, such as Germany, Scotland and the Netherlands, where the Enlightenment was mediated as much through the universities as outside and in opposition to them. Much of the pressure behind the rapid spread of reforms based on those at Berlin derived from the greater job opportunities in state service that were perceived to fall to former students of the law faculties: see U. Muhlack, ‘Die Universita¨ ten im Zeichen von Neuhumanismus und Idealismus. Berlin’, in P. Baumgart and N. Hammerstein, (eds.), Beitra¨ ge zu Problemen deutscher Universita¨ tsgru¨ ndungen der fru¨ hen Neuzeit (Nendlen and Liechtenstein, ), pp. –. ²⁰ Certainly the concrete contribution of earlier university reforms is still visible and acknowledged in the work of the Kantian theologian, C. F. Sta¨ udlin, who from the vantage point of the tolerant university of Go¨ ttingen, the weather vane of German philosophical fashion, was able to assimilate and express this legacy while at the same time asserting Kant’s personal and institutional transcendence of it. ²¹ See C. Ritter, ‘Immanuel Kant’, in Stolleis, Staatsdenker im  und  Jahrhundert, p. .



Natural Law Theories

epistemology that he set out first in his Foundations to the Metaphysics of Morals (), and then more fully in the Metaphysics of Morals (), represent a frontal assault on the voluntarist ethics at the heart of the ‘histories of morality’, and Kant’s contemporaries were quick to perceive the extent to which he had overturned its moral epistemology. Kant’s starting point in the Foundations is that a law of any kind cannot be generated from experience, for experience can only yield general conclusions rather than truly universal ones that apply a priori. Experience can only provide us with ‘counsels of prudence’ about human behaviour, and this is the main flaw in the pre-existing natural law tradition, whether Grotian or Pufendorfian. Laws that have true obligation attached to them are not to be arrived at by studying the operating principles of human nature, but must have their expression in the agency of an autonomous will freely exercising practical reason. Thus, ‘[f ]rom a Kantian perspective, the whole endeavour [of the natural law tradition] might well be considered a lesson in the futility of trying to account for obligation without distinguishing rational from empirical concepts’.²² What makes a law binding is not whether its coercive properties are in tune with human nature, but whether it is rationally capable of objective generalisation for everyone in relevantly comparable circumstances. This represents a wholly new concept of obligation. Instead of obligation taking the form of sanctions (or their threat) being imposed by one recognised superior agent upon another – the model that operates for Hobbesian and Pufendorfian natural law theory – obligation resides in the free, internal expression of rational choice by the agent himself. Reason paradoxically becomes practical by subjecting every maxim to the purely formal test of whether it can be redescribed as a universal law.²³ This choice is free because it involves an act of independent will rather than a mere acquiescence in a goal set by nature: the will can rise above the emotional impulses of human nature through the purifying process of choice.²⁴ In external actions towards others this transfers into a validation of right action so long as that action leaves unaffected the ²² M. Gregor, ‘Kant on Natural Rights’, in R. Beiner and W. J. Booth (eds.), Kant and Political Philosophy: the Contemporary Legacy (New Haven, ), p. . This section owes much to the rigorous elucidation of Kant’s engagement with Grotius and Pufendorf contained in this important article, and also to a similar exercise by J. B. Schneewind, ‘Kant and natural law ethics’, in Ethics,  (), pp. –. ²³ See AA, IV, p. , for the classic expression of this point in Foundations. ²⁴ AA, VI, Die Metaphysik der Sitten, p. .

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choices of others to pursue their own given ends. There is, of course, the awkward possibility of this whole chain of reasoning unravelling if individuals choose not to adhere to the principle of universalisation and follow random private inclinations; but Kant believes that there are sufficient selfish incentives to ward this off, and that in any case a right can legitimately be redescribed as a capacity to place another under an obligation – including the duty to take the ends of others into full account. However, in the case of the right to property or any external objects, a unilateral will cannot serve as a coercive law for everyone with regard to possession that is external and contingent, since that would infringe upon freedom in accordance with universal laws. So it is only a will putting everyone under obligation, hence only a collective general (common) and powerful will, that can provide everyone this assurance.²⁵

Formal rights of property therefore do not exist before the creation of civil society, which provides the necessary universalising framework to convert possession into right through the intervention of a formal law giver. This is ‘natural law’ because men recognise that only by this practical device can they achieve the goals that they all already know on a priori grounds they must find a way to achieving. There is no separation in Kant – as there certainly was in Pufendorf and in Thomasius – between the principles of ethics and the principles of natural law. By eschewing the characteristics of human nature and empirical features of positive law, and focusing instead on the purely formal criteria required for autonomous moral choice, Kant had cut through many of the dilemmas that had bedevilled the history of natural law since Leibniz and Pufendorf set out their mutually incompatible systems. Voluntarism had been purified and redescribed as a concept of the will grounded in reason alone, floating free of the coercive Hobbesian debris that Pufendorf had never succeeded in shaking off. The obligation of natural law, so far from being the source of unresolved anxiety it was for Jean Barbeyrac, becomes the benign precondition of a consensual transition to civil society in which everyone freely recognises the legitimate and sufficient constraint of a legal framework before the external exercise of free will can be successfully converted into rights. This is both logically and empirically the only way in which an agent can rationally obtain an external object of their choice. ²⁵ Ibid., pp. –.



Natural Law Theories

Having set up this epistemic foundation for his system, Kant moves on in the later sections of the Metaphysics of Morals to demonstrate the operation of his principle of right, which draws out the implications of his arguments in the Foundations for the guidance of actions in empirical circumstances.²⁶ In so doing he decisively redefines the boundaries between the spheres of law and of private morality in a fashion that diverges sharply from the practice of the earlier eighteenth-century natural lawyers.²⁷ He was, of course, compelled to do this on one level by the apparent basic contradiction between the criteria of self-legislation or autonomy set up in the Foundations, and the parallel need to justify the continuing role of the state in supervising legal enforcement in a phenomenal world where there may be an almost infinite variety of abstract goods or concrete objects to which individuals may wish to lay claim as private property. Kant’s solution is to abandon the strong association made by the natural law school between state enforcement and the pursuit of all duties, whether perfect or merely imperfect duties towards others, and to divide quite sharply between the duties of right which are the concern, ultimately, of the state, and the duties of virtue which we are as individuals bound to pursue if we are to attain happiness. The principle of right that we should follow is that we should ensure ‘the freedom of the will of each to coexist together with the freedom of everyone in accordance with a universal law’.²⁸ This restricts the role of the state to determining, according to Kant’s Erlaubnisgesetz, or law of permission, what rules should govern the pursuit by self-legislating individuals of goods outside the immediate sphere of those individuals. This stands quite separate from the principle of virtue those individuals should follow in respect of their pursuit of self-perfection and the happiness of others. Thus the prime duty of the state can be achieved, which is the protection of private property, by ensuring the determination and confirmation of mutually compatible ²⁶ The Metaphysics of Morals is still a neglected text, in part because of its initial publication in two separate sections, The Metaphysical First Principles of the Doctrine of Right and The Metaphysical First Principles of the Doctrine of Virtue. See M. Gregor, Laws of Freedom: A Study of Kant’s Method of Applying the Categorical Imperative in the Metaphysik der Sitten (Oxford, ), for a classic exposition of its place in Kant’s writings; see also the special commemorative edition of Jahrbuch fu¨ r Recht und Ethik, vol. V (), B. Sharon Byrd, J. Hruschka and J. C. Joerden (eds.), entitled ‘ Jahre Kants Metaphysik der Sitten’. ²⁷ This section is indebted to the penetrating analysis by Schneewind, in Invention of Autonomy, pp. –, and also to the major studies by W. Kersting, Wohlgeordnete Freiheit. Immanuel Kants Rechtsund Staatsphilosophie (Frankfurt/Main, , nd edn) and R. Brandt, ‘Das Erlaubnisgesetz, oder Vernunft und Geschichte in Kants Rechtslehre’, in R. Brandt (ed.), Rechtsphilosophie der Aufkla¨ rung (Berlin and New York, ), pp. –. ²⁸ AA, VI, Die Metaphysik der Sitten, p. .

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claims of subjective right. Thus ideas of contract become more analytical derivations of pure reason than prudential calculations working in a putative state of nature. On this argument, the need for voluntarist reinforcement of pragmatic contracts is transcended altogether, and replaced by something akin to Rousseau’s concept of the general will. As Kersting has argued, ultimately ‘the law of right brings external freedom into harmony with itself and functions as a principle of consistency for the outer world through its hindrance of all non-universalizable uses of the freedom of action’.²⁹ Kant made no attempt to write a ‘history of morality’, which, given his arguments that there is no separation between ethics and natural law, is perhaps not a surprise; but there is a brief Historie der Moral noted down by one his students in a lecture series from the later s.³⁰ This short sketch gives succinct accounts of the main sects of the ancient world who contributed to ethics – cynics, Epicureans and Stoics – and their modern counterparts, Helve´ tius and La Mettrie in the case of the first two. All are criticised for seeking to identify a summum bonum in human nature and its inclinations so as to define sources of happiness and unhappiness; but the Stoics are mildly preferred on the grounds that some members of the sect did seek to identify human goals outside this life. Plato is praised on similar grounds, for firmly locating the summum bonum in God.³¹ In describing contemporary ethics Kant distinguished between two different ways of grounding moral judgement. The first was based on subjective principles grounded in human nature such as Helve´ tius’ notion of amour-propre and the moral sense philosophy of Shaftesbury and Hutcheson (to which he also couples Mandeville); and elsewhere Lord Kames (‘Ritter Home’) is castigated similarly for his theory that human history demonstrates that moral theory can be gradually learned and improved.³² The second approach comprised objective principles of morality grounded in the free exercise of the will to choose generally valid moral categories (Willku¨ r).³³ This distinction at ²⁹ W. Kersting, ‘Politics, freedom and order: Kant’s political philosophy’, in P. Guyer (ed.), The Cambridge Companion to Kant (Cambridge, ), p. . However, as he notes, this outcome does not resolve the question of how a Kantian analysis would regulate mutually compatible spheres of freedom, as opposed to those that are incompatible: see ibid., p. . ³⁰ I. Kant, ‘Historie der Moral’, Praktische Philosophie Powalski, in Vorlesungen u¨ ber Moralphilosophie, AA, XXVII (vol. IV, first part of Kants Vorlesungen), pp. –. ³¹ Ibid., p. . ³² Ibid., p. . However, he praises Wolff backhandedly for effectively excluding the dissemination of these theories in Germany thanks to the all-embracing mathematical approach in his system. ³³ Ibid., pp. –. Among modern philosophers only Rousseau is praised for perceiving the potential of the will undefiled by later distortions of false morality (see ibid., p. ).



Natural Law Theories

the heart of Kant’s own approach of ethics is basic to subsequent histories written in the Kantian style, and to the work of C. F. Sta¨ udlin in particular. Beyond this sketch and the essay on the progress of metaphysics in Germany since Leibniz and Wolff (which was never published in his lifetime) Kant did not write extensively on the history of moral philosophy. But it would be a mistake to assume that he did not possess a long-standing interest in and knowledge of the subject. In fact he lectured regularly on either the general history of philosophy, or specifically on the history of logic, ethics or theology. Between  and  he is known to have presented ten times a course entitled ‘Encylopedia of the whole of Philosophy with a condensed History of Philosophy based on on Feder’s ‘‘Grundriss’’ ’. The textbook that he used on these occasions, Grundriss der philosophischen Wissenschaften (A Plan of the philosophical Sciences) was the work of the Go¨ ttingen Popularphilosoph, J. H. Feder, who had divided his history, in a similar fashion to Save´ rien, into sub-divisions of philosophy, and collated material from Brucker to compose the smaller narratives. The chapter on post-Renaissance practical philosophy repeated almost unchanged the picture Brucker had given of a revival of ancient sects together with an eclectic flowering from Bruno to Thomasius.³⁴ Only the notes for these lectures have survived in Kant’s Nachlass, but nevertheless it is possible to reconstruct the outlines of Kant’s overview.³⁵ He seems to have used the compendia of Morhof, Gentzken, Fabricius and Heumann in addition to Brucker, and organised his account around the dialectic of scepticism and dogmatism that was later to dominate the historical excursus in the First Critique.³⁶ But there are surprising contrasts between Kant’s history and his models, in content as much as method: he dispenses, notably, with any discussion of philosophy before the Greeks on the grounds that earlier peoples thought essentially through images rather than words; and in his treatment of the modern period he concentrates upon the impact of mathematics and physics upon the subject. Bacon and Descartes are the heroes of this section, with plaudits also accorded to Locke and Leibniz. Kant’s particular interest in Newton ³⁴ For an assessment of Feder’s writings in this area see M. Longo, ‘Scuola di Gottinga e ‘‘Popularphilosophie’’’, in G. Santinello (ed.), Storia delle storie generali della filosofia, vol. III, pp. –. ³⁵ The best discussion of the themes contained in these lectures is E. Feldmann, ‘Die Geschichte der Philosophie in Kants Vorlesungen’, Philosophisches Jahrbuch,  (), pp. –. The relevant notes from the Nachlass are contained in vols. XIX and XX of the AA edition. ³⁶ See Braun, L’Historie de l’histoire de la philosophie (Paris, ), p. .

The end of the ‘history of morality’



and natural philosophy in his pre-Critical period is reflected in the high esteem with which his work is garlanded here. But most strikingly, Kant argues in this section of his lectures and at this early stage in his career that moral philosophy has made no perceptible progress since the ancient world, despite the fact that Feder argues the opposite in his textbook. But this statement fits well with the views expressed in the summary history of ethics from the s, which similarly sought to present Kant’s categorical imperative as the only decisive step forward in moral epistemology since the ancient world. In the final chapter of the Critique of Pure Reason (), Kant included a brief ‘History of pure reason’. Within this small essay, which does not pretend to be a complete treatment of its subject, he attempts to locate his own project in the context of the development of philosophy up to and including the Critical Philosophy. If the object of our concern in the history of philosophy is the development of ‘pure reason’, then Kant believes that there are three topics or debates in the history of philosophy towards which attention should be directed: the object of all our knowledge through reason, the origin of the modes of knowledge through pure reason, and the method by which knowledge through pure reason is obtained. These represent collectively ‘the chief revolutions in metaphysical theory’.³⁷ The dispute over the object of the knowledge of pure reason was essentially, in Kant’s opinion, between the ‘sensualists’ and the ‘intellectualists’. The first group, among whom Epicurus is the outstanding example, maintained that the reality of things was to be found solely in the objects of the senses, and that all other pretended sources of knowledge were fictions. The second group, with Plato at their head, regarded sensory knowledge as false and asserted that only the understanding can distinguish what was true. Kant believes that this strand of opposition has proceeded from earliest times ‘in unbroken continuity’, although there have been increases in sophistication over time: The former conceded intellectual concepts, but admitted sensible objects only. The latter required that true objects should be purely intelligible, and maintained that by means of the pure understanding we have an intuition that is unaccompanied by the senses – the senses, in their view, serving only to confuse the understanding.³⁸

The second fundamental conflict that has persisted from ancient philosophy until Kant’s own time has been between ‘empiricists’, led by ³⁷ I. Kant, The Critique of Pure Reason, ed. N. Kemp-Smith (London, ), p. .

³⁸ Ibid.



Natural Law Theories

Aristotle and represented by Locke in modern times, and ‘noologists’ such as Plato, and more recently Leibniz. This is essentially another way of describing the quarrel between rationalism and empiricism; for the issue is whether the modes of knowledge through pure reason are derived from experience or lie independent of it, embedded in reason itself. Locke is disparaged by Kant for attempting to draw metaphysical conclusions concerning the existence of God and immortality of the soul purely from the evidence of experience, whose limits must inhibit any such claims for pseudo-mathematical certainty in these areas.³⁹ Kant distinguishes two methods as currently dominant in epistemology, one ‘naturalistic’ and the other ‘scientific’. The naturalist’s approach is to follow the path of common sense, whereby he hopes to gain access to the same metaphysical truths as the technical philosopher. However, ‘[t]his is mere misology, reduced to principles; and what is most absurd of all, the neglect of all artificial means is eulogised as a special method of extending our knowledge’.⁴⁰ Those who have attempted to approach this subject scientifically have either been dogmatists, such as Wolff, or sceptics, such as Hume. But the correct path between these options is clearly the ‘critical’ one.⁴¹ Kant never wrote a fuller version of the history of philosophy than this self-conscious self-vindication offered at the very end of the First Critique. But there are various clues to indicate the form it might have taken. First, we can infer from a work such as the Idea for a Universal History with a Cosmopolitan Purpose that what Kant envisages is an a priori history that recognises only a subordinate place for empirical data: ‘My idea is only a notion of what a philosophical mind, well acquainted with history, might be able to attempt from a different angle’.⁴² For Kant all historical events occur through the operation of natural laws, and we must simply discover how these laws operate through history before we can make any sense of the empirical data that have obsessed historians up until now: [w]e may hope that what strikes us in the actions of individuals as confused and fortuitous may be recognised, in the history of the entire species, as steadily advancing but slow development of man’s original capacities [ . . .] The only way out for the philosopher, since he cannot assume that mankind follows any rational purpose of its own in its collective actions, is for him to attempt to discover a purpose in nature behind this senseless course of human events.⁴³ ³⁹ Ibid, p. . ⁴⁰ Ibid. ⁴¹ Ibid., pp. –. ⁴² Kant, Kant’s Political Writings, ‘Idea for a Universal History with a Cosmopolitan Purpose’, p. .

The end of the ‘history of morality’



It was this kind of history that he had in mind when he wrote to Morgenstern in  to suggest that he attempt such a history that did not simply list the chronology of books, but sought to identify the order of the emergence of the ideas of human reason: I believe that I find in you the man who is in the position to compose a history of philosophy not according to the chronological order of the textbooks which have been written, but according to the natural succession of thoughts, as they must gradually have developed from human Reason, just as the very same Elements have been arranged in the Critique of Pure Reason.⁴⁴

But before we consider the various attempts that were made to produce a history of ethics in the Kantian manner we should be clear that the variety of history that Kant had in mind was narrowly defined. In the First Critique he writes of all philosophical systems in terms of a tension between the overall, often hardly discernible architectonic of reason, and the particular stage of manifestation that it has reached: Systems seem to be formed in the manner of lowly organisms . . . from the mere confluence of assembled concepts, at first imperfect, and only gradually attaining to completeness, although they one and all have had their schema, as the original germ, in the sheer self-development of reason. Hence, not only is each system articulated in accordance with an idea, but they are one and all organically united in a system of human knowledge, as members of one whole.⁴⁵

All philosophical systems are ultimately concerned to expound the self-development of reason, but the task of the historian in demonstrating this is difficult because the history of philosophy is, as a whole, analogous to the process by which systematic philosophy is itself generated: It is unfortunate that only after we have spent much time in the collection of materials in somewhat random fashion, at the suggestion of an idea lying hidden in our minds, and after we have, indeed, over a long period assembled the materials in a merely technical manner, does it first become possible to discern the idea in clearer light and to devise a whole architectonically, in accordance with the ends of reason.⁴⁶

Just as it is difficult to advance the self-development of reason, so is it difficult to detect such advances. While it is true that there have been great conflicts in the history of philosophy that have genuinely concerned the nature of pure reason, these have been effectively hidden by ⁴³ Ibid., pp.  and . ⁴⁴ AA, XII, Kants Briefwechsel, III, –, I. Kant to Karl Morgenstern,  August , p. . ⁴⁵ Kant, Critique of Pure Reason, p. . ⁴⁶ Ibid.



Natural Law Theories

endless petty disputes that have disguised the underlying pattern of development. Kant’s First Critique aims to go further than a history of philosophy in the Kantian manner actually could; for in that work Kant not only sets out to synthesise the goals of reason in a way that would prevent sectarianism, but also to systematise those various ends in one paradigm for the first time. Any truly Kantian history of philosophy must be correspondingly transcendental, and attempt to illustrate, in Hegel’s words, that philosophy must give up the name of love of knowledge (philo-sophia) and become actual knowledge (sophia).⁴⁷ .  .   ¨     ’                    From Kant’s own attempts to sketch out the relationship of his ethics to his predecessors we have already identified a number of key criteria that any Kantian history of ethics would have to meet: such a history would have to distinguish between those theories of ethics that took their starting point in human nature and Kant’s own that sought to find an objective higher principle as a starting point. It would also have to indicate that the main contours of debate in the eighteenth century lay between empiricism, scepticism and systematic rationalist philosophy that took God as its defining summum bonum. It would finally have to explain how Kant’s own rationalism had superseded them all. On a small scale the implications of Kant’s comprehensive overthrow of the existing orthodox way of arriving at natural jurisprudence were first appreciated by the young Jena-based lawyer, Gottlieb Hufeland (–), as early as . In his Versuch u¨ ber den Grundsatz des Naturrechts he reviewed the gamut of natural law theories from Grotius to Kant, criticised the voluntarist tradition, and concluded that ‘none of the previous attempts to demonstrate obligation have wholly succeeded’.⁴⁸ He perceived that Kant had provided a means of reuniting morality and duties without there being any need for the intervention represented by the imposition of those duties as natural law: ‘Morality teaches duties; why then should natural law also teach duties? . . . How would it be now if we tried to teach pure rights in our science?’⁴⁹ Hufeland had here appreciated that the close conceptual link Kant had created between ⁴⁷ G. W. F. Hegel, Phenomenology of the Mind, trans. J. B. Baillie, (New York, ), preface. For further information on Kant’s discussion of the role of history in philosophy see Y. Yovel, Kant and the Philosophy of History (Princeton, ), pp. –. ⁴⁸ G. Hufeland, Versuch u¨ ber den Grundsatz des Naturrechts (Leipzig, ), p. . ⁴⁹ Ibid., p. . For Kant’s favourable review of Versuch u¨ ber den Grundsatz des Naturrechts see AA, VIII, pp. –; and for a general review of the issues raised by Hufeland, W. Kersting, ‘Sittengesetz und Rechtsgesetz. Die Begru¨ ndung des Rechts bei Kant und den fru¨hen Kantianern’, in Brandt, Rechtsphilosophie der Aufkla¨ rung, pp. –.

The end of the ‘history of morality’



duty and access to moral truth immediately placed in question other theories of moral obligation, traditionally associated with natural law theories. The consequences of this insight were more fully developed in the work of Sta¨ udlin, one of the most penetrating Kantian commentators of the s, who also wrote pioneering histories of moral philosophy and religious thought from a Kantian perspective. Carl Friedrich Sta¨ udlin (–) was born in Stuttgart and educated at Go¨ ttingen, where he was appointed professor of theology in  at the instigation of the biblical and oriental scholar J. D. Michaelis (–).⁵⁰ His first work, Ideen zur Kritik des Systems der Christlichen Religion (Ideas for a Critique of the System of the Christian Religion), (), adopted a similar structure to Kant’s First Critique and argued from a theologian’s perspective for the compatibility of Kantian rationalism with a separate sphere of supernatural revelation as a mutually reinforcing basis for christian belief. This work he sent to Kant with a letter of introduction. His next book was a historical investigation, Geschichte und Geist des Skepticismus (The History and Spirit of Scepticism), (), written to demonstrate to German readers both the sophistication of modern sceptical thought in Britain, and also to place Kant as the latest philosopher who sought to transcend and overcome sceptical doubts. This was symbolised by portraits of Hume and Kant together on the title page.⁵¹ The stimulus for this work had been provided by the year he had spent in England in the s, during which time he had studied Hume very carefully. The book itself presents Kant as more than a mere refuter of scepticism; indeed materialism, fatalism, atheism, enthusiasm and superstition are also considered to have met their rebuttal in his work.⁵² However, his later career described a gradual trajectory from the Critical Philosophy to positivism eventuating in his frequently republished textbook, Neues Lehrbuch der Moral fu¨ r Theologen (), where he made high claims for the authority of Christ’s teaching as positive law. ⁵⁰ There is little material on Sta¨ udlin beyond an entry in the Allgemeine Deutsche Biographie, vol. XXXV (Leipzig, ), pp. – and a brief account of his relations with Kant in J. Ringleben, ‘Go¨ ttinger Aufkla¨ rungstheologie, von Ko¨ nigsberg her gesehen’, in B. Mo¨ ller (ed.), Theologie in Go¨ttingen. Eine Vorlesungsreihe (Go¨ ttingen, ), pp. –. However, his coverage of scepticism is acutely analysed in J. C. Laursen, ‘Skepticism and the history of moral philosophy: the case of Carl Friedrich Sta¨ udlin’, in J. Van Der Zande and R. H. Popkin (eds.), The Skeptical Tradition around  (Dordrecht, ), pp. –. ⁵¹ C. F. Sta¨ udlin, Geschichte und Geist des Skepticismus, vorzu¨ glich in Ru¨ cksicht auf Moral und Religion,  vols. (Leipzig, ). See J. C. Laursen, ‘Kant in the history of scepticism’, in M. P. Thompson (ed.), John Locke und Immanuel Kant. Historische Rezeption und gegenwa¨ rtige Relevanz (Berlin, ), pp. –. ⁵² For these reasons Sta¨ udlin’s book was used by those seeking to present Kant’s work to a wider audience: see, for example, the condensation used in A. Willich, Elements of the Critical Philosophy (London, ), only the second book to be published in English on Kant.



Natural Law Theories

So in the early s there were at least two reasons to explain the development of an important intellectual relationship between Sta¨ udlin and Kant. Most obvious was their similar reading of modern scepticism, which prioritised English eighteenth-century writers and Kant’s alleged transcendence of them. But just as important to Kant at the time was the reassurance implied in Sta¨ udlin’s relaxed view of the fit between Kant’s ethical theory and its implications for natural theology – links which Kant was seeking to develop in Religion Within the Limits of Reason Alone () against the backcloth of the first really serious difficulties he had encountered with the Berlin censors. In this the support of a theologian located in tolerant Go¨ ttingen was not merely intellectually congenial but also practically useful, given that Kant had only been able to ensure the publication of the book through submitting it for the imprimatur of the philosophy faculty of his own university. It is clear that he anticipated a sustained literary rumpus in which he would need allies; for he ends and justifies his letter of explanation to Sta¨ udlin with the hope ‘that you will be able to judge whether my actions are justified in case a public quarrel should arise over the case’.⁵³ The details of the problems this book created for Kant are recounted in his own preface to The Contest of the Faculties, whose writing was directly prompted by these incidents. In that preface he points to the example of Sta¨ udlin’s mentor, J. D. Michaelis whose textbook on ethics was published by his pupil posthumously in : Michaelis likewise had believed that the Bible and the truths of reason were mutually reinforcing and could be used to illustrate one another.⁵⁴ When he sent Kant a copy of his History of Scepticism, Sta¨ udlin also made him an offer of publishing an article in the newly established theological periodical he edited at Go¨ ttingen, an offer that Kant initially received enthusiastically as he seems to have considered it unlikely that what later became The Contest of the Faculties would otherwise find an outlet.⁵⁵ Ultimately, of course, the essays outgrew the format of a journal and were published elsewhere; but Sta¨ udlin ultimately received the dedication as an act of compensation and in thanks for his detailed and supportive involvement in the fraught circumstances of their composition. Sta¨ udlin reciprocated in the first volume of his Geschichte der Sittenlehre Jesu (–). The value he continued to attach to his links with ⁵³ AA, XI, Kants Briefwechsel II, I. Kant to C. F. Sta¨ udlin,  May , p.  (trans. in Kant’s Philosophical Correspondence, –, ed. Zweig, p. ). ⁵⁴ See AA, VII, Vorrede, Der Streit der Faculta¨ ten, p. . ⁵⁵ See AA, XI, Kants Briefwechsel, II, I. Kant to C. F. Sta¨ udlin,  December , pp. –, where Kant speaks ironically of the protection his book would find from the ‘hyperorthodox’ under the ‘orthodox George III’.

The end of the ‘history of morality’



Kant is confirmed by his republication of Kant’s letters to him in his last book, Geschichte des Rationalismus und Supernaturalismus vornehmlich in Beziehung auf das Christentum (). But Sta¨ udlin’s contribution to the dissemination of Kantian philosophy did not end here. Much of his later work took the form of reworkings of sets of lectures on moral theology and philosophy originally delivered to his theology students at Go¨ ttingen. It is in these works that he develops the implicit critique of earlier natural law theories that we have identified in Kant himself, and which was hinted at by Hufeland. In his Geschichte der christlichen Moral seit dem Wiederaufleben der Wissenschaften (History of Christian Ethics since the Renaissance) () he criticised Pufendorf directly on a number of counts: first, for deriving an ethical system from principles of sociability and self-preservation founded on human nature; secondly, for identifying the power of a legitimate law giver as the main strength of moral obligation; and thirdly, for stressing that reason and revelation are quite separate sources of knowledge that offer no mutual validation. As a result his ethics represented a mixture of ethical and legal principles in which the so-called highest principle is one that is entirely dependent on the main force of law for its universal qualities.⁵⁶ Moreover, Pufendorf’s division of man’s moral obligations between his roles as man, citizen and Christian perpetuated his categorical mistake in separating ethics from moral theology. Behind this system of voluntarist ethics lies a fundamental flaw, which is to omit the search for a single governing rational principle outside human nature from which all ethical and legal provisions may be generated without distinction.⁵⁷ This failure to distinguish between empirical and rational concepts produced therefore no more than counsels of prudence. These priorities were developed to their fullest extent in his massive Geschichte der Moral Philosophie (), and its epitome of the same title, which appeared as an appendix to the third and last edition of his Neues Lehrbuch de Moral fu¨ r Theologen (), and which forms the basis of our study here.⁵⁸ The work is divided into three parts, the first devoted to ⁵⁶ C. F. Sta¨ udlin, Geschichte der christlichen Moral seit dem Wiederaufleben der Wissenschaften (Go¨ ttingen, ), pp. –. ⁵⁷ Ibid., p. . ⁵⁸ The larger work, running to some , pages, appeared as Geschichte der Moralphilosophie (Hanover, ). The abbreviated version appears as Geschichte der Moralphilosophie, appendix to his Neues Lehrbuch der Moral fu¨ r Theologen (Go¨ ttingen, ), pp. –. In his brief memoir Sta¨ udlin singles out the larger work for special mention within his oeuvre: ‘The History of Moral Philosophy (Hanover, ) is a large, comprehensive work which achieves something that had not been done hitherto’ ( J. T. Hemsen (ed.), Zur Erinnerung an D. Carl Friedrich Sta¨ udlin. Seine Selbstbiographie (Go¨ ttingen, ), p. ). The shorter version is examined here, not merely for convenience, but also because it is on the same scale as the ‘histories of morality’ that have formed the basis of this study.



Natural Law Theories

Greek, Roman and Hellenistic philosophy; the second to scholasticism, the recovery of Greek philosophy and sixteenth-century moral philosophy, and the final and largest section to moral philosophy of the seventeenth, eighteenth and early nineteenth centuries. The summary of ancient and medieval thought is quite similar to that given in earlier ‘histories of morality’, but as a theologian Sta¨ udlin is a much more sympathetic interpreter of scholastic thought than Jean Barbeyrac had been in ‘The Science of Morality’, lacking the latter’s polemical grounds for attacking the early church fathers. He also shows particular Kantian interest in any thinker who claims to identify a single governing principle behind his ethical system.⁵⁹ The discussion of the modern era is divided up into what he identifies in proto-Hegelian fashion as the key ‘national’ traditions, each of which betray a distinctive predominant spirit. Except in the case of Britain and Germany, there is little sense of moral philosophy being a cosmopolitan enquiry involving close contacts across state borders within the wider republic of letters. French writing of the eighteenth century is treated fairly dismissively as derivative from Shaftesbury; and Helve´ tius and La Mettrie are described in the same disparaging terms that we have seen used by Kant himself.⁶⁰ Rousseau is identified as an influential writer who took human nature as the starting point of his ethics, but ‘moral systems of this basis and design that occurred amongst the British and Germans were never written in France’.⁶¹ The influence of his earlier writing on the history of scepticism is responsible for a quite different handling of the relationship between ‘modern’ natural law writers and this tradition. Gone is the link between the revival of scepticism and the intellectual priorities of Grotius and Pufendorf, and instead scepticism is identified primarily with British moral-sense theories of the eighteenth centuries. The gradual disaggregation of the interpretative core of the ‘history of morality’ is apparent in his treatment of Grotius, who is simply singled out as the most distinguished Dutch writer on ethics whose system of natural law combines principles of reason with the law of nations.⁶² Sta¨ udlin’s lengthy evaluation of British thought draws attention to the close relationship between its method and substantive character, ‘so that the manner of its philosophising on moral subjects is itself an expression of its moral subjects’.⁶³ But his grouping of its leading exponents reflects Kantian priorities: Bacon, Hobbes and Locke are ⁵⁹ See for example his discussion of Aristotle, in Geschichte der Moralphilosophie, p. . ⁶⁰ Ibid., pp. –. ⁶¹ Ibid., p. . ⁶² Ibid., p. . ⁶³ Ibid., p. .

The end of the ‘history of morality’



seen as empiricists, whereas Cudworth and Price (whose moral epistemology is considered to anticipate elements of Kant’s own) are accorded high praise and extensive summary. Locke is judged to be an unwitting supporter of scepticism because his denial of innate moral concepts was much more effective than his theory of virtue, based as it was on a confusion of divine will and common sense.⁶⁴ So far was he from his stated goal of obtaining mathematical certainty for his account of moral truth that his disciple Shaftesbury was able to build on Locke’s arguments to promote the sceptical case strongly, and with destructive results that only became apparent in the work of Mandeville, which overturned all conventional readings of virtue and vice.⁶⁵ Thus, the path that Shaftesbury had trodden was followed by Hutcheson and Hume, Smith and Ferguson, with each placing more emphasis on this or that part of the system . . . common sense and benevolence are in all of them the soul of the system of ethics.⁶⁶

Only Richard Price in England and Christian August Crusius in Germany provided ethical theories that address the central themes of this sceptical tradition, and their work therefore received longer summary than that of any other philosopher discussed by Sta¨ udlin. In different ways each had argued that the subjectivity of moral sense philosophy could be replaced with an account of the autonomous competence of reason to identify clearly articulated concepts of right and wrong aside from the realm of experience; nor should it be seen as paradoxical to see human beings as both dependent upon God and capable of independent exercise of reason. In each case moral obligation is taken away from the essence of human nature, or concepts of the highest good, and vested instead in the ability of the rational will to recognise that there are laws which properly apply to the individual.⁶⁷ This serves to relegate ‘modern’ natural law to a modest and subordinate position in the history of moral philosophy in Germany. While Sta¨ udlin recognised the role of Pufendorf in displacing the authority of Aristotle in German ethics, he sided with Leibniz and Wolff on the question of moral obligation, finding the rationalism of the monadology and Wolff’s concept of Vollkommenheit far preferable to Pufendorf’s ⁶⁴ Ibid., pp. –. ⁶⁵ Ibid., pp. –. ⁶⁶ Ibid., p. . ⁶⁷ For Price see ibid., pp. –, and for Crusius, pp. –. For a close examination of Kant’s methodological indebtedness to both Price and Crusius see J. B. Schneewind, ‘Natural law, skepticism and methods of ethics’, Journal of the History of Ideas,  (), pp. –.



Natural Law Theories

voluntarism.⁶⁸ Thomasius is credited with the impact of his practical institutional reforms, but his ethics are cited as a supreme example of utilitarianism derived from empirical selection and prioritising of some aspects of human nature.⁶⁹ With the exception of Crusius, the majority of later eighteenth-century German moral philosophy had taken its bearings from British sources, and especially through those authors such as Ferguson, mediated through Go¨ ttingen. The Popularphilosophen had adopted a eudaimonism, based on British sources, which marked them out equally as empiricists relying on unverifiable theories of human nature for the groundwork of their system.⁷⁰ Kant’s philosophy therefore began a new epoch, according to Sta¨ udlin, despite its indebtedness to Plato, certain scholastics, Cudworth and Price.⁷¹ His originality lay in proclaiming his a priori framework as the ‘free and individual product of human reason itself’, and not merely a transfer of divine ideas to the human mind.⁷² By presenting the categorical imperative as the formal presupposition of ethics he successfully got behind all those other first principles of ethics which could in essence be reduced to self-love, which cannot be the proper basis for any ethical system.⁷³ In this insight lay his refutation of modern scepticism and vindication of reason’s role as its own law giver. While Fichte and Schelling had tried to perfect Kant’s moral philosophy, there was still disagreement over whether moral philosophy had or had not been raised to the status of a science; for it remained a striking fact that even after the apparent victory of the Kantian philosophy it was not possible to provide a satisfactory answer to the prize question, ‘Why are the philosophers so disunited on the highest moral principle when they are for the most part agreed with one another on individual duties?’⁷⁴ Sta¨ udlin recognised that the dispute between those who argued for the priority of the independent autonomous role of reason and those who drew on the powers of human nature continued unabated, even though his own preference was clear. What however could not be doubted was that the ‘modern’ natural law tradition was no longer part of this equation. ⁶⁸ See ibid., pp. – for this final exchange in the debate between Pufendorfian ethics and the Leibnizian alternative. ⁶⁹ Ibid., p. . ⁷⁰ See ibid., pp. – for his remarks on Basedow, Feder, Michaelis, Garve and Platner, which make no reference to the intimate connection between their collective assumptions and those of the earlier Thomasians. ⁷¹ Ibid., p. . ⁷² Ibid., p. . ⁷³ Ibid. ⁷⁴ Ibid., p. .

The end of the ‘history of morality’



                        Before Kant’s death in  his followers were already also exploring the consequences of the Critical Philosophy for the history of philosophy as a whole, and as a result the historical contribution of eclecticism began to disappear from the literature too. K. H. Heydenreich (– ), and J. C. Grohmann (–) both published methodological treatises in the later s suggesting that the task of the history of philosophy should be redefined as simply the delineation of the growth of reason, irrespective of authors and chronology.⁷⁵ But there was still a basic problem which had to be overcome before any large-scale Kantian history could be written; for if the history of philosophy was an epistemological story of how human reason had come to perceive that all knowledge was impossible unless the role of a priori truth was accepted, then there was a real danger that a history of philosophy would simply rebuke past philosophers for not being Kantians. There were many works written at this time by early followers of Kant that sought to redefine the history of philosophy as ‘the represented contents of the changes which the science of the necessary connection of things has experienced from its time of origin to our own times’.⁷⁶ But it is perhaps significant that few of these individuals went on to produce large-scale works in this genre. If it was assumed that the only philosophers who counted were those who had produced large systems that could be seen in some sense as forerunners of Kant, then much of what had traditionally been known as the history of philosophy represented no more than ‘philosophischen Grillen’.⁷⁷ The first systematic historians in the Kantian mode to address this issue were J. G. Buhle (–) and W. G. Tennemann (–).⁷⁸ Tennemann believed it was possible to reconcile the empirical and transcendental planes by distinguishing between ‘philosophy’, which was of recent origin, and ‘philosophising’, which had been the subject of the history of philosophy to date. These two could be seen in a teleological relation which allowed a narrative still to be told: ‘Philosophising is ⁷⁵ K. H. Heydenreich, ‘Gibt es eine Philosophie?’, Originalideen u¨ ber die kritische Philosophie (Leipzig, ¨ ber den Begriff der Geschichte der Philosophie (Wittenberg, ). ); J. C. Grohmann, U ¨ ber den Begriff der Geschichte der Philosophie’, in G. G. Fu¨ lleborn (ed.), ⁷⁶ K. L. Reinhold, ‘U Beitra¨ ge zur Geschichte der Philosophie, vol. I (Zu¨ llichau, ), p. . ⁷⁷ For a discussion of these writers on method in the history of philosophy see L. Geldsetzer, ‘Der Methodenstreit in der Philosophiegeschichtsschreibung –’, Kant-Studien,  (), pp. –. ⁷⁸ J. G. Buhle, Lehrbuch der Geschichte der Philosophie und einer kritischen Literatur derselben,  vols. (Lemgo, –); W. G. Tennemann, Geschichte der Philosophie,  vols. (Leipzig, –).



Natural Law Theories

older than all philosophy; and it stands in the same relation to philosophy as striving to its goal’.⁷⁹ But it is a condition of that narrative that only those philosophers who have produced philosophical systems receive extended discussion and summary. This is the case in the histories of both Buhle and Tennemann: for it is only in the systematic works that claim to offer a wholly fresh epistemology for all sub-divisions of philosophy that the thread of gradually maturing reason may be discerned. There is not much change to be seen in the discussion of Greek philosophy, which was categorised in any case as a set of sequential systems; but in the post-Renaissance sections of the histories of Buhle and Tennemann the picture is rather different. Buhle’s Lehrbuch sees the fifteenth century as a revival of ancient systems; the sixteenth as pre-eminently the century of the revival of the Aristotelian system; and the seventeenth as the period when the great modern systems originated: those of Descartes, Gassendi, Hobbes, Malebranche and Spinoza. In the eighteenth century, before the apotheosis of Kant, Locke, Leibniz and Wolff are the three major figures. There is no discussion of eclecticism for the simple reason that its very principles disqualify it. It does not conform to the epistemological system-building that these historians are looking for. These schematic revisions of the post-Renaissance history of philosophy are best observed in the shorter textbook for student use that Tennemann brought out alongside his larger eleven-volume work. In his Grundriss der Geschichte der Philosophie fu¨ r den akademischen Unterricht (Foundation of the History of Philosophy for Academic Study) he justifies the need for a fresh and bold history of philosophy on the grounds that all previous authors had concentrated far too much upon biography, irrelevant eastern philosophies, and political history at the expense of the overall Geist, the progress of reason. Brucker is dismissed respectfully but decisively on this count: Brucker furnished the most complete work, which through the diligent collection and interpretation of the information compiled (especially concerning the biography of philosophers), is still serviceable now. But he lacked a philosophical spirit [Geist].⁸⁰

Tennemann is in no doubt that the history of philosophy began effectively with the ancient Greeks; despite the claims that some earlier ⁷⁹ Tennemann, Geschichte der Philosophie, vol. I, p. xxix. ⁸⁰ W. G. Tennemann, Grundriss der Geschichte der Philosophie fu¨ r den akademischen Unterricht, ed. A. Wendt (Leipzig, , rd edn), Einleitung, §, p. . This work received an influential translation as A Manual of the History of Philosophy (London, ), trans. A. Johnson, revised J. R. Morrell.

The end of the ‘history of morality’



historians of philosophy made for the philosophical content of the Cabbala and the antiqua sapientia of the Chaldeans, it is only when one can observe philosophers in the process of analysing concepts that one can say that the discipline is recognisable: The beginning of the history of philosophy thus lies with the Greeks, and in fact is to be found in the time when a higher degree of Reason developed from the cultivation of the imagination and the understanding, in which there was a struggle for the meaning of ideas, and the interconnections of knowledge, and the beginning of a search for basic principles. This happened in the time of Thales.⁸¹

Just as Kant had seen the basic dynamic of the history of philosophy as a dialectic between dogmatism and scepticism, so Tennemann identifies in each of the ancient, medieval and modern periods of western philosophy an initial enunciation of ‘dogmatic’ systems followed by the development of sceptical objections to them. The breakdown of the old dogmatisms is then followed by the development of new philosophical systems, and so the cycle continues until the transcendence of it by Kant himself. The application of this schema to the period of post-Renaissance philosophy produces a radically altered picture from the one with which we have become familiar in this book. Tennemann identifies three distinct segments of philosophical history in the period  to . In the first phase, lasting until , there is a concerted struggle against scholasticism which takes the form of the reproduction and combination of ancient systems of philosophy, whether Platonist, Aristotelian or Stoic in inspiration. Tennemann somewhat speciously regards thinkers such as Machiavelli, Bruno, Bodin, Telesio and Campanella as providing variations on these systems of an unsystematic kind. This phase is brought to an end by the emergence of a sustained sceptical attack upon these revived systems which brings them into disrepute. The second phase, which runs from  to , comprises a phase of recovery characterised by the emergence of wholly new systems of thought designed to counteract the sceptical attacks: The second period up until the end of the eighteenth century concerns the development of new systems, with particular regard for a more secure foundation of a more systematic unity and completion of individual sections by way of dogmatism, with more zealous attacks on scepticism.⁸²

The dominant figures in this revival of systems were Descartes and Bacon, who built on the discoveries in natural philosophy, and ⁸¹ Ibid., §, p. .

⁸² Ibid., §, p. .



Natural Law Theories

respectively established ‘rationalism’ and ‘empiricism’ which gained wide adherence in Europe beyond France and England: Two great minds, Bacon and Descartes, defined the direction of the human minds for a long time; through their work empirical knowledge and theorising became the watchwords. This alignment derived from Italy, but only found full scope in England, France, and Germany.⁸³

In this period Tennemann argues that all systematic philosophy concerned itself with either speculative or practical philosophy. In each case the proponents were exclusively ‘empiricists’ or ‘rationalists’. According to his Kantian schema there is simply no more room for any other system until the third subsection, the Kantian philosophy itself, is propagated in the s. After ‘dogmatism’ there can only be another form of ‘scepticism’, which in Kant’s case is more than this, being instead a transcendence of the whole dialectic: The third period, from the last fifth of the eighteenth century up until the most recent times, includes the attempt at defining philosophical Reason by means of the Critical Method, together with the quarrels and new intellectual movements that arose from it, and new dogmatic attempts to bring science to perfection through knowledge of the absolute.⁸⁴

This format therefore allows no place for eclecticism as an independent philosophical discourse. Tennemann acknowledges its existence but only as a vulgar form of empiricism. In practical philosophy its influence had been disastrous because its trust in the free and rational choice of the individual in search for moral norms had aroused a countervailing and equally disastrous determinist metaphysics: Moral philosophy was therefore for the most part an eclectic selection (according to subjective judgements) of the better and more rational appearances, the united expression of self-love, and inclinations of fellow-feeling. Freedom, according to this view, created great difficulties: for in this fundamental position of a sound ethics one either had an eye only for psychological freedom or strove to solve this problem from a metaphysical basis, and therefore fell back on determinism or affirmed a blind lawless freedom – whereas theoretical reason refuted this.⁸⁵

The impact of eclecticism had been even more catastrophic for speculative philosophy, where, as a result of the dominance of eclecticism in the German universities, the important developments in philosophy in Scotland, and especially Hume’s scepticism, had been overlooked.⁸⁶ It had produced the belief that philosophical truth lay ⁸³ Ibid., §, pp. –.

⁸⁴ Ibid., §, p. .

⁸⁵ Ibid., §, p. .

⁸⁶ Ibid., §, p. .

The end of the ‘history of morality’



scattered through many systems of thought like a broken beam of light, which with only a little effort could be reunited in an accessible and generally useful way.⁸⁷ While in its early days eclecticism had been a liberating factor, in its later forms it had served only to repress true metaphysical speculation: ‘At one time eclecticism had been a bulwark against prejudice and the despotism of a system; but now it was a consequence of the embarrassment and uncertainty of human reason; and empirical analyses threatened metaphysics’.⁸⁸ Thus when Tennemann looks back over the course of eighteenthcentury philosophy in Germany he sees no evidence of substantial progress in the central concerns of philosophy. There has indeed been expansion of the subject area of philosophy, as is indicated by the emergence of aesthetics and economics, but the age-old questions remain unanswered: ‘In all areas there dominated uncertainty, doubt, and disunity over the most important subjects’.⁸⁹ Thus, this faithful follower of Kant’s outline of the history of philosophy not only wrote eclecticism out of his narrative, but also held it responsible for a pedantry and intellectual torpor parallel to the decayed scholasticism it had striven to replace. In one sense Kantian accounts of the history of philosophy represented a retrogressive step. Whereas eclectic ‘histories of morality’ had sketched out a pattern of post-Renaissance progress in ethics, the Kantian view remained less optimistic. Partly, this was a function of Kant’s own distaste for the ethics of his day; but it must also be noted that until the final leap into the Critical Philosophy there is no ‘progressive’ movement to the history of philosophy as a whole in the Kantian account – there is no strict dialectic, but simply a triad of ‘dogmatism’, followed by ‘scepticism’, followed by a resolution in the Critical Philosophy that is endlessly repeated without any stage necessarily representing an improvement upon the last.⁹⁰ It is only in Hegel’s history of philosophy that this triadic approach is integrated with a progressive dynamic that encompasses the whole range of the history of philosophy from the Greeks to the modern period in one single ‘progress of noble minds’. Of course this progressive dynamic is not truly ‘historical’, in the sense that we would apply the term in the history of ideas. As Walsh has argued, for Hegel ‘this subject is of its nature part of philosophy itself: its ⁸⁷ Ibid. ⁸⁸ Ibid. ⁸⁹ Ibid., §, p. . ⁹⁰ This point is well made in J. Freyer, Geschichte der Geschichte der Philosophie im achtzehnten Jahrhundert (Leipzig, ), p. .



Natural Law Theories

aim is not to discover facts, but to pronounce on truth and falsehood’.⁹¹ As a result, the issue of how philosophical doctrines emerged historically is something of a sideline to the chief task which is to explain the development of Hegel’s own theories. Nevertheless, the story of how philosophical truth has passed through all its negations is still an irreducibly historical one: each stage of the developmental process has to be passed through, and therefore cannot be written off as useless; later systems are built on earlier ones and contain all that their antecedents established even if in a different form. Hegel had already made the point that each theory makes a distinctive contribution to the creation of an ultimate truth in his early writings on logic. In his Lectures on the History of Philosophy delivered in Jena in –, he expanded this insight to cover the whole of the history of philosophical thought. The result of this strategy was a history of philosophy that certainly did give a very full account of all the major systematic philosophies together with a more attractive dynamic than that offered by the Kantians. Even if Hegel thought little of certain types of philosophy (such as empiricism), and absurdly too much of others (such as the writings of the mystic Jakob Bo¨ hme), all were given adequate summary, since all were significant moments in the self-development of spirit. Those individuals who received little or no attention were largely those who had been neglected by the Kantians for the reason that their thinking was insufficiently systematic. And of course the eclectics were pre-eminent in this regard. In the post-Renaissance volumes of the Lectures on the History of Philosophy, Grotius, Hobbes and Pufendorf put in fleeting appearances simply as rather crude empiricists who have a lingering importance in the philosophy of law. They are grouped in the ‘Second Division of the Metaphysics of the Understanding’, a subsection dominated by Lockean empiricism, of which Hegel in any case has a low opinion because he believes it essentially denies the importance of metaphysics. At most these figures have local importance: ‘But there is nothing speculative or really philosophic in them [i.e. Hobbes’ doctrines], and there is still less in Hugo Grotius’.⁹² For Hegel, Thomasius is equally contemptible: he jibes that Thomasius’ only claim on the philos⁹¹ W. H. Walsh, ‘Hegel on the history of philosophy’, History and Theory, Supplement  (), p. . ⁹² G. W. F. Hegel, Lectures on the History of Philosophy, vol. III, trans. E. Haldane and F. Simson (London, ), p. . The lectures were never published by Hegel in his lifetime, and this edition was translated from the first German edition of  prepared from MSS and student notes by C. L. Michelet.

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opher’s attention is as the first philosopher to write in German. His philosophy reduces to that ‘healthy reason’ which contains no more than ‘the superficial character and the empty universality always to be found where a beginning is made with thought’.⁹³ For Hegel there is only one significant pre-Kantian German philosopher in the eighteenth century, Christian Wolff, who as a resolute systematiser ‘defined the world of consciousness for Germany’.⁹⁴ However, it may be argued that although Hegel expressed only contempt for the eclectic tradition in eighteenth-century Germany he was, ironically, more than a little influenced by it in the course of his education in the history of philosophy: indeed the germ of the idea of the progressive dynamic of the history of philosophy quite possibly stems from his early reading of the works of Christoph Meiners, the Popularphilosoph and ‘progressive’ historian of the mid-eighteenth century Go¨ ttingen school that, as we have seen, was largely established by Thomasian scholars. There is some evidence to show that in his student years Hegel profited from a reading of Meiners’ Grundriss der Geschichte der Menschheit (Plan of the History of Mankind), a book that attempted to distinguish between the history of events and the history of man, of what he was, and has become.⁹⁵ Thus that characteristic opposition within Hegel’s philosophy of history between the superficial flow of events and the hidden development of man that can only be ascertained through comparison of nations, forms of government, and stages of economic evolution conceivably owed some of its distinguishing characteristics to the more flexible climate of historiographical enquiry that the Thomasian scholars had introduced into the early days of the university of Go¨ ttingen. Despite the Kantian revolution in moral philosophy, a faint but discernible connection can still be construed between the early eighteenth-century eclectics, the Popularphilosophen, and philosophy’s view of itself in the nineteenth century. ⁹³ Ibid., p. . ⁹⁴ Ibid. ⁹⁵ H. S. Harris, Hegel’s Development (Oxford, ), pp. – states that Hegel derives his concept of ‘philosophical history’ from Meiners’ Grundriss der Geschichte der Menschheit. Hegel’s careful annotation of this work is recorded in J. Hoffmeister (ed.), Dokumente zu Hegels Entwicklung (Stuttgart, ), pp.  and .

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Index

Achenwall, Gottfried,  n. , ,  Alberti, Valentin, , , , , , , , , –,  Alonso of Cartagena, – Aquinas, Thomas,  Aristotelianism, ‘Altdorf’ school,  and Conring, –,  and German Protestantism, , –, , , –, –, ,  and Pufendorf’s opponents,  and Christian Wolff, – see also Alberti; Conring; Leibniz; Pufendorf, Samuel von; Thomasius, Christian; universities; Wolff Aristotle, , , , , , , , , , , , 

and eclecticism, –, , , – and Christian Thomasius, , nn.  and , ,  and Jakob Thomasius, – and Wolff,  see also Buddeus; eclecticism; ‘histories of morality’; moral philosophy, historiography of; Thomasians; Thomasius, Christian; Wolff Bruni, Leonardo, – Bruno, Giordano, , ,  Buddeus, Johann Franz, , , –, ,  n. , , , , ,  see also Brucker; eclecticism; Thomasians; Thomasius, Christian; Wolff Buhle, Johann Gottlieb, , – Burlamaqui, Jean-Jacques, 

Bacon, Francis, , –, , , , – Barbeyrac, Jean, , , , ,  editions of Grotius and Pufendorf, – and history of natural law, , ,  and Leibniz,  Basedow, Johann Bernhard,  n. ,  n.  Bayle, Pierre, , , ,  n.  Beckmann, Nicholas, , –,  Bentham, Jeremy, – Biester, Johann, – Bo¨cler, Johann Heinrich, , –, ,  Bodin, Jean,  Bo¨hme, Jakob,  Boineburg, Baron Johann Christian von,  n. , , , , , ,  and correspondence with Pufendorf, – Boyle, Robert,  Brucker, Johann Jakob, ,  argument of Historia Critica Philosophiae, – and Buddeus, –,  and Condillac, –

cameralism,  Campanella, Tommaso, ,  canon law, ,  Carbo, Ludovico,  Cartesianism, , , , , , –, ,  n.  Charlemagne,  Cicero, , , –, –,  Coccejus, Samuel,  Condillac, Etienne Bonnot de, – Conring, Hermann, , , – and Aristotelianism, – and Boineburg correspondence, – and eclecticism,  see also Aristotelianism; Bo¨cler; eclecticism; moral epistemology; natural law; Pufendorf, Samuel von Consalvi, Cardinal,  contract, theories of, –, –, –,  see also Pufendorf, Samuel von; Thomasius, Christian Copenhagen,  Copleston, Frederick,  n. 





Index

Coyet, Baron Peter Julius,  n. ,  Crusius, Christian August, –, ,  Cudworth, Ralph, ,  Cumberland, Richard, ,  customary law, German, –, , , – Denzer, Horst,  Descartes, Rene´ , , , , , , , , – Diderot, Denis,  Dippel, Conrad,  n.  Duisburg, university of, 

Frederick II, king of Prussia, , , –,  Frederick III, elector of (later Frederick I, king in) Prussia,  Frederick William I, king of Prussia,  Frederick William II, king of Prussia, ,  Fru¨haufkla¨rung, , , , , , , ,  see also eclecticism; ‘histories of morality’; natural law; Pufendorf, Samuel von; Thomasius, Christian; universities

Edelmann, Johann,  n.  Edict of Nantes,  Elizabeth, Tsarina,  enlightened absolutism, , –, –, –, , –,  see also Pufendorf, Samuel von; Thomasius, Christian; Wolff Epictetus,  n. , ,  Epicureanism, –, ,  see also Hobbes; Stoicism Epicurus, , 

Garve, Christian, , –,  n.  Gassendi, Pierre, – Gatterer, Johann Christoph,  n.  Gentzken, Friedrich,  Gerhard, Ephraim,  Gesner, Johann Matthias,  n.  Gibbon, Edward,  Gierke, Otto,  Goethe, Johann Wolfgang von,  n.  Go¨ ttingen, university of, , , –,  n. , –, , , , , ,  Gottsched, Johann Christoph,  Gracı´an, Balthasar,  Grohmann, Johann Christian,  Grotius, Hugo, , , , , , , , , , , , , , , , ,  commentaries upon,  n. , , , ,  and Conring, – in Huguenot diaspora, – his moral epistemology, – and Pufendorf, , , –, , –, –, , –,  and Sta¨udlin,  and Vico,  works: De Jure Belli ac Pacis, –, –, –, ,  see also Barbeyrac; Bo¨cler; Conring; ‘histories of morality’; moral epistemology; natural law; Pufendorf, Samuel von; sociability; Thomasius, Christian Gundling, Nicolaus Hieronymus, –, , 

Fabricius, Johann Albert, ,  Feder, Johann Georg Heinrich, , , , , , ,  n.  Ferguson, Adam, ,  Fichte, Johann Gottlieb,  Formey, Samuel,  Francke, August Hermann, ,  n.  Franeker, university of,  Frankfurt an der Oder, university of,  n. , , , 

Halle, university of, , , –, , –, , , –, , , ,  n. , , , , , ,  Hartmann, Georg Volomar, , , ,  Hegel, Georg Wilhelm Friedrich, –, –, , , – Heidelberg, university of, , ,  Heineccius, Johann Gottlieb, , , , – Hellmuth, Eckhart, 

eclecticism, absence in Huguenot diaspora,  in Brucker , –, – definition, , , – demise of, –, –, –,  in history of philosophy, –, – literature on, –, n.  and natural science, – and physics, – and Popularphilosophen, –,  and Pufendorf, , , –, , – and rationalism,  and Christian Thomasius, –, –, –, , –, –,  see also Brucker; Crusius; Fru¨haufkla¨rung; Kant; moral epistemology; natural law; Popularphilosophen; Pufendorf, Samuel von; reason; Thomasians; Thomasius, Christian; Wolff

Index Helmstedt, university of,  Helve´ tius, Claude Adrien, ,  Herder, Johann Gottfried, ,  Hermogenes,  Herz, Marcus,  Heumann, Christoph August,  n. , –, ,  Heydenreich, Karl Heinrich,  historicism,  ‘histories of morality’, , ,  and early German Enlightenment, –, – and Huguenot diaspora, – listed, – and Pufendorf, , –, –, –, – range and definition, –,  by Thomasians, –, – and Thomasius, – treatment in Brucker, – see also Brucker; eclecticism; Grotius; Hobbes; Kant; moral epistemology; moral philosophy, historiography of; natural law; Pufendorf, Samuel von; Thomasians; Thomasius, Christian Hobbes, Thomas, , , , , , , , , , , , , , , , ,  as ‘Epicurean’ – and Leibniz, – and Pufendorf, –, , , , –, –, –, – and theory of language, – see also Epicureanism; ‘histories of morality’; Leibniz; natural law; Pufendorf, Samuel von; voluntarism Hont, Istva´ n,  n.  Horn, Georg, , Hufeland, Gottlieb, –,  Huguenots, –, ,  Humboldt, Wilhelm von,  Hume, David, , , , ,  Hutcheson, Francis,  innate ideas, , –,  see also moral epistemology; Pufendorf, Samuel von; reason Iselin, Isaak,  n. ,  Jena, university of, , ,  n. ,  Jesuit order,  Jurieu, Pierre, ,  Kames, Lord,  Kant, Immanuel, –, , , , , , , 



and Crusius, – dissemination of the Critical Philosophy, , –, – and eclecticism, , –, , – his history of philosophy, – his moral epistemology, – and Sta¨ udlin, – and Thomasians,  n.  and university reform, , , , – his university teaching,  and ‘unsocial sociability’,  n.  works: Contest of the Faculties, , , –, ; First Critique, , , , , , –, –, ; Foundations to the Metaphysics of Morals, –; Historie der Moral, –; Idea for a Universal History with a Cosmopolitan Purpose, ; Metaphysics of Morals, –; Perpetual Peace, ; Religion within the Limits of Reason alone, ; Was ist Aufkla¨ rung?,  see also eclecticism; moral epistemology; natural law; property; reason; scepticism; universities Kersting, Wolfgang,  Klippel, Diethelm, ,  Ko¨ nigsberg, university of, , , ,  Koselleck, Reinhard,  Krieger, Leonard,  Laertius, Diogenes,  La Mettrie, Julien Offray de, ,  Lange, Joachim, , ,  Lauterpacht, Hersch, – Le Clerc, Jean,  n. ,  n.  Leibniz, Gottfried Wilhelm von, , , , , , , , , , , , , , ,  his attack on Pufendorf, – his concept of justice, – his critique of voluntarism, , , –, , – his doctrine of pre-established harmony, –, ,  and evil, – and monadology, , , , , – his moral epistemology, –,  and Platonism, –, – on religious toleration, – and Wolff, –, – works: Discourse on Metaphysics, , ; Monadology, , , ; Nova methodus discendae docendaeque jurisprudentiae, ; ‘Opinion on the Principles of Pufendorf’, –; Theodicy, , –



Index

Leibniz, Gottfried Wilhelm von (cont.) see also Hobbes; moral epistemology; natural law; Plato; Pufendorf, Samuel von; reason; substance; Thomasians; Thomasius, Christian; voluntarism; Wolff Leiden, university of, ,  Leipzig, university of, , , , , –, ,  Locke, John, , –, , , , , ,  Longo, Mario,  Ludewig, Johann Peter von,  Ludovici, Karl Gu¨nther, , ,  Ludovicus, Jacobus, – Lund, university of,  Machiavelli, Niccolo, ,  Malebranche, Nicolas,  Mandeville, Bernard,  Marburg, university of, ,  Marcus Aurelius,  n. ,  Martini, Karl Anton von,  n.  Masius, Hector Gottfried, –,  n.  Meiners, Christoph, , ,  Melanchthon, Philipp, , , , –, ,  Mendelssohn, Moses, ,  Mersenne, Marin,  Michaelis, Johann David, , ,  n.  Mill, John Stuart,  n.  Mo¨ ser, Justus, , moral epistemology, –, –, –, –, –, , –, –, –, , – see also Conring; eclecticism; Hobbes; natural law; Kant; Leibniz; Pufendorf, Samuel von; reason; sociability; Thomasius, Christian; voluntarism; Wolff moral philosophy, historiography of, contribution of Brucker, – before Pufendorf, – transformation after Kant, – views of Thomasius, –, – see also Brucker; eclecticism; ‘histories of morality’; Kant; Pufendorf, Samuel von; Sta¨ udlin; Thomasians; Thomasius, Christian moral theology, , , – Morgenstern, Karl,  Morhof, Daniel Georg,  Mu¨ nchhausen, Ernst von,  n.  Mu¨ nchhausen, Gerlach Adolf von,  natural jurisprudence, see natural law natural law, and cultura animi, , –, 

and Fru¨ haufkla¨ rung, , ,  and history, – and human reason, – and law of nations, –, , , , – and moral theology, –, –, –, , –, –,  origins,  and positive law, –, ,  principium cognoscendi, –, –, –, –, , –, –, –, – relation to divine law, –, –,  and subjective natural rights, –, – and university reform, – see also Conring; customary law; eclecticism; Fru¨ haufkla¨ rung; ‘histories of morality’; Hobbes; Kant; Leibniz; moral epistemology; Pufendorf, Samuel von; Roman law; Thomasians; Thomasius, Christian; universities; voluntarism; Wolff Neuchaˆ tel,  Newton, Isaac,  Niedermann, Joseph, – Oestreich, Gerhard,  Palladini, Fiammetta,  n. ,  Peiresc, Nicolas-Claude Fabri de,  philosophy, historiography of,  pietism, , –, –, –, , – Platner, Ernst,  n.  Plato, , –, , , , , , , ,  Platonism,  Poiret, Petrus, ,  Popularphilosophen, –, ,  positivism, – Price, Richard, ,  property, in Kant, – in Pufendorf, – subjective rights to, – Proust, Jacques,  Prussia, –,  higher education in, – see also, Frederick II; Kant; universities; Zedlitz Pufendorf, Esaias von,  Pufendorf, Samuel von, , , , , , , , , , , , , , , , , , , , , ,  denial of innate ideas, – and eclecticism, , , – and enlightened absolutism, 

Index and ‘geometric method’, –, , –, ,  his ‘history of natural law’, , –, – and influence of Conring, –, – his intellectual development, – and Lutheran opponents, , –,  his moral epistemology, –, – his moral theology, – and Sta¨ udlin,  and Stoicism , –, , , –, , ,  and theory of language, –, – and theory of sovereignty, – use of compacts, –, –,  use of cultura animi, , – and Vico,  n.  views on religious toleration, – works: Apologia de se et suo libro, –, –; De habitu religionis christianae ad vitam civilem, ; De Jure Naturae et Gentium, –, , , –, , –, , , –, –, –, ; De Officio Hominis et Civis, , , –, ; De statu imperii Germanici, ; Elementa Jurisprudentiae Universalis, –; , –, ; Eris Scandica, , ; Jus Feciale Divinum, ; Specimen Controversiarum, , –, – see also Conring; contract; eclecticism; Fru¨ haufkla¨ rung; Grotius; ‘histories of morality’; Hobbes; Kant; Leibniz; moral epistemology; moral philosophy, historiography of; natural law; property; reason; sociability; Stoicism; Thomasians; Thomasius, Christian; universities; voluntarism; Wolff Pythagoras,  Pyrrhonism, see scepticism Quesnay, Franc¸ ois,  n.  reason, human, –, , –, –, –, –,  see also eclecticism; Leibniz; moral epistemology; natural law; Pufendorf, Samuel von; Thomasius, Christian; Wolff religious toleration, –,  Roman law, , , , – Rousseau, Jean-Jacques, , ,  n. , ,  Saxony, ,  scepticism, , , , –,  Schelling, Friedrich Wilhelm,  Scherzer, Johann Adam, 



Schiller, Friedrich,  n.  Schlo¨ zer, August Ludwig,  n.  Schmauss, Johann Jakob, , –,  Schwarz, Joshua, , –,  Seidler, Michael,  Selden, John, , – Seneca, –,  Shaftesbury, third earl of, , ,  Skinner, Quentin,  sociability, , , , –, –, , , –, –, , , –, ,  see also Grotius; moral epistemology; natural law; Pufendorf, Samuel von; Thomasius, Christian Spinoza, Baruch de, –, ,  Sta¨ udlin, Carl Friedrich, , ,  n. , , – Stanley, Thomas,  state of nature, –,  Stoicism, , , –, , , , –, , , , ,  see also Epicureanism; ‘histories of morality’; Leibniz; natural law; Pufendorf, Samuel von; Strato,  Strauss, Leo, – Sturm, Johann Christoph, –,  Sua´ rez, Francisco,  substance, doctrines of, –, –, – Telesio, Bernadino,  Tennemann, Wilhelm Gottlieb, , – Thomasians, , , –, –, –, –,  n. ,  Thomasius, Christian, , , –, –, , , , – concept of Vernu¨ nftige Liebe, – distinction between justum, honestum and decorum, –, –,  dispute with Masius, –,  and eclecticism, –, –, – and ‘history of morality’, – intellectual crisis, – intellectual development, – language and natural law, – and Leibniz,  and Lutheran opponents, –,  his ‘practical philosophy’, –, –,  relationship with Pufendorf, –, –, –, –, –,  separation of natural law and moral theology, , –, ,  and Jakob Thomasius, – and university reform, –, –, –, –, , 



Index

Thomasius, Christian (cont.) and Vico,  n.  works: Ausu¨ bung der Sitten-Lehre, –; ‘De crimine bigamiae’, ; ‘De philosophorum sectis’, –; Einleitung zu der Sitten-Lehre, ; Einleitung zu der Vernunft-Lehre, , , ; Fundamenta Juris Naturae et Gentium, –, , ; Ho¨chstnothige Cautelen, ; Institutiones Jurisprudentiae Divinae, , –, –, , , ; Introductio ad philosophiam aulicam, , –, –, , ; ‘Natura hominis, libertas voluntatis, imputatio in poenam’, ; Paulo plenior Historia Juris Naturalis, – see also Conring; contract; eclecticism; Fru¨ haufkla¨ rung; Grotius; ‘histories of morality’; Hobbes; Kant; Leibniz; moral epistemology; moral philosophy, historiography of; natural law; property; Pufendorf, Samuel von; reason; sociability; Stoicism; Thomasians; Thomasius, Jakob; universities; voluntarism; Wolff Thomasius, Jakob, –,  Thrasymachus, – Thu¨ mmig, Ludwig Phillip,  Tuck, Richard,  Turnbull, George, –, ,  ¨ berweg, Friedrich,  U universities, Catholic southern German, ,  universities, Protestant north German, and eclecticism, , –,  reform of, , –, –, –, –, –, – status of philosophy faculty, –, , – see also Aristotelianism; eclecticism; Fru¨ haufkla¨ rung; Go¨ ttingen; ‘histories of morality’; Halle; Kant; Pufendorf, Samuel von; Thomasians; Thomasius, Christian; utilitarianism, , , ,  Van der Zande, Johan,  Van Horn Melton, James,  Vattel, Emer de,  n. , , , – see also Wolff

Vico, Giambattista, –,  voluntarism, divine, , , , –, –,  Hobbesian, , , , , –, – Pufendorfian, , , –, –, , , , – transition to Kantian autonomy, –, –,  see also Hobbes; Kant; Leibniz; moral epistemology; natural law; Pufendorf, Samuel von; Thomasius, Christian; Wolff Vossius, Gerhard Johannes,  Walch, Johann Georg,  n.  Walsh, William Henry,  Weber, Max,  Weigel, Erhard, , , –, , – see also Pufendorf, Samuel Wesenfeld, Arnold,  n.  Westphalia, Treaty of, ,  Wo¨ llner, Johann Christoph, ,  Wolff, Christian, , , , , , , , , , , ,  and Aquinas,  and Aristotelianism,  and atheism, –, – and China, , – and enlightened absolutism, , –,  hostility to eclecticism, – his natural law theory, –, – relationship to Leibniz, , – and university of Halle, ,  use of Vollkommenheit, –, , , ,  wider influence, –, –,  works: Jus Gentium, ; Jus Naturae, ; ‘Oratio de Sinarum philosophica practica’, , ; Philosophia Practica Universalis (), ; Philosophia Practica Universalis (),  see also Aristotelianism; Brucker; Buddeus; Crusius; eclecticism; Kant; Leibniz; moral epistemology; natural law; Pufendorf, Samuel von; reason; substance; Thomasians; Thomasius, Christian; universities; Vattel Zedlitz, Karl Abraham von, – Zeno,  Zurbuchen, Simone, 

   Edited by              (General Editor),              ,                               ,  . .              (eds.) Philosophy in History Essays in the historiography of philosophy* pb:       . .  .    Virtue, Commerce and History Essays on political thought and history, chiefly in the eighteenth century* pb:       .  .        Private Vices, Public Benefits Bernard Mandeville’s social and political thought hb:             (ed.) The Languages of Political Theory in Early Modern Europe* pb:             The Judgment of Sense Renaissance nationalism and the rise of aesthetics* pb:           Hegel: Religion, Economics and the Politics of Spirit, –* pb:           Christian Humanism and the Puritan Social Order hb:              Gassendi the Atomist Advocate of history in an age of science hb:             (ed.) Conscience and Casuistry in Early Modern Europe hb:            Between Literature and Science: The Rise of Sociology* pb:    

      ,     and     .     (eds.) Political Innovation and Conceptual Change* pb:            et al. The Empire of Chance How probability changed science and everyday life* pb:    X        That Noble Dream The ‘objectivity question’ and the American historical profession* pb:              The Province of Legislation Determined Legal theory in eighteenth-century Britain hb: j           Faces of Degeneration A European disorder, c. –c.* pb:           Approaching the French Revolution Essays on French political culture in the eighteenth century* pb:            The Taming of Chance* pb:           ,        and         (eds.) Machiavelli and Republicanism* pb:    X       The Origins of American Social Science* pb:    X             The Rise of Neo-Kantianism German academic philosophy between idealism and positivism hb:            Interpretation and Meaning in the Renaissance The case of law hb:    

         From Politics to Reason of State The acquisition and transformation of the language of politics – hb:                The Political Thought of the Dutch Revolt – hb:                 and         (eds.) Political Discourse in Early Modern Britain hb:    X        An Approach to Political Philosophy: Locke in Contexts* pb:          Philosophy and Government –* pb:         .   Defining Science William Whewell, natural knowledge and public debate in early Victorian Britain hb:            The Court Artist The ancestry of the modern artist hb:          .      Defining the Common Good Empire, religion and philosophy in eighteenth-century Britain hb:            .   The Idea of Luxury A conceptual and historical investigation* pb:       . .   The Enlightenment’s Fable’ Bernard Mandeville and the discovery of society hb:               Englishness and the Study of Politics The social and political thought of Ernest Barker hb:    

       Strategies of Economic Order German economic discourse, – hb:             The Transformation of Natural Philosophy The case of Philip Melanchthon hb:            ,       and        (eds.) Milton and Republicanism pb:             Classical Humanism and Republicanism in English Political Thought – hb:             The Social and Political Thought of Bertrand Russell The development of an aristocratic liberalism hb:             ,     ,       and     .   Otto Neurath: Philosophy between Science and Politics hb:            Riches and Poverty An intellectual history of political economy in Britain, –* pb:           A History of Sociological Research Methods in America pb:            (ed.) Enlightenment and Religion Rational dissent in eighteenth-century Britain hb:       .  . .    Adversaries and Authorities Investigations into Ancient Greek and Chinese science* pb:             The Reportage of Urban Culture Robert Park and the Chicago School hb:    

     Liberty, Right and Nature Individual rights in later scholastic thought hb:         .      (ed.) William Robertson and the Expansion of Empire hb:               Rousseau and Geneva From the First Discourse to the Social Contract, – hb:             Pluralism and the Personality of the State hb:              Early Modern Liberalism hb:        Equal Freedom and Utility Herbert Spencer’s liberal utilitarianism hb:           and          (eds.) Pedagogy and Power Rhetorics of classical learning hb:          The Shaping of Deduction in Greek Mathematics A study in cognitive history hb:            and         (eds.) Models as Mediators* pb:             Measurements in Psychology A critical history of a methodological concept hb:         .    The American Language of Rights hb:    

         The Development of Durkheim’s Social Realism hb:       . .      Political Culture in the Reign of Elizabeth I Queen and Commonwealth – hb:        (ed.) Renaissance Civic Humanism Reappraisals and Reflections hb:    X  .  .       Natural Law Theories in the Early Enlightenment hb     Titles marked with an asterisk are also available in paperback