Sacred Polities, Natural Law and the Law of Nations in the 16th-17th Centuries 9789004501782, 9004501789

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Sacred Polities, Natural Law and the Law of Nations in the 16th–​17th Centuries

History of European Political and Constitutional Thought Series Editors Erica Benner (Yale University) László Kontler (Central European University) Mark Somos (Max Planck Institute for Comparative Public Law and International Law) Associate Editors Anna Becker —​Alberto Clerici —​Adriana Luna-​Fabritius Gaby Mahlberg —​Jani Marjanen —​Eva Piirimae Advisory Board Duncan Bell —​Hans Blom —​Annabel Brett —​Lea Campos Boralevi Janet Coleman —​John Dunn —​Pamela Edwards —​Ioannis Evrigenis Xavier Gil —​David Grewal —​Oleg Kharkhordin —​Paschalis Kitromilides Anne Peters —​Christopher Smith —​Balázs Trencsényi Martin van Gelderen —​Richard Whatmore

volume 7

The titles published in this series are listed at brill.com/hepct

Sacred Polities, Natural Law and the Law of Nations in the 16th–​17th Centuries Edited by

Hans W. Blom

LEIDEN | BOSTON

Cover illustration: Sarcophage of the Traditio legis by Jesus Christ to the Apostle Paul (detail), originally part of the Anicii mausoleum, Rome ca. 390–​400 ad, now in Louvre, bought in 1808 out of the famous Borghese collection. Licensed under Creative Commons Attribution 3.0 Unported. The Library of Congress Cataloging-​in-​Publication Data is available online at https://catalog.loc.gov lc record available at https://lccn.loc.gov/2021050179​

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-​typeface. issn 2589-​5 966 isbn 978-​9 0-​0 4-​4 9853-​2 (hardback) isbn 978-​9 0-​0 4-​5 0178-​2 (e-​book) Copyright 2022 by Hans W. Blom. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau Verlag and V&R Unipress. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-​use and/​or translations must be addressed to Koninklijke Brill nv via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents  Acknowledgements vii  Notes on Contributors viii Introduction 1 1  Hans W. Blom

part 1 Humanist Inroads into Natural Law 2  Natural Law and National Polity The Leiden Discourse on State and Church (1575–​1625) 29 Arthur Eyffinger ‘Without Prophetic and Apostolic Voices’ 3  Niels Hemmingsen’s On the law of Nature According to a Demonstrative Method 56 Mads Langballe Jensen 4  Between Scripture and Stoicism The Duty of Intervention in the Calvinist Monarchomachs 77 Alberto Clerici 5  Separating the Universal and Natural from the Particular in the Mosaic Legislation The Humanist and Calvinist Context of Franciscus Junius’s De politiae Mosis observatione (1593) 102 Markus M. Totzeck 6  Challenges of Universalism Theologico-​Philosophical Considerations of Natural Law by Transylvanian Antitrinitarians in the Late Sixteenth Century ( Jacobus Palaeologus and Christian Francken) 136 József Simon

vi Contents 7  Natural Law, Contingency and History in the Legal Thought of Francisco Suárez 154 Dominique Bauer

part 2 Hugo Grotius and Samuel Pufendorf 8  Grotius on Natural Law: An Inventory of Propositions 173 Arthur Eyffinger Erastianism and Natural Law in Hugo Grotius’s De Imperio Summarum 9  Potestatum Circa Sacra 200 Stefanie Ertz 10  Grotius on the Foundation of Natural Law 223 Jiří Chotaš Pufendorf’s Lutheranism 242 11  Thomas Behme Pufendorf: Coercion, Religious Beliefs and Toleration 267 12  Heikki Haara Moral Entities, Divine Will and Natural Law According to 13  Pufendorf 288 Denis Ramelet 14  Providence and Uses of Grotian Strategies in Neapolitan Political Thought, 1650–​1750 314 Adriana Luna-​Fabritius  Index 343

Acknowledgements The organization of the conference that started the genesis of this book has profited enormously from the generous financial support of the Central European University and Brill Publishers Leiden. In particular I thank Jana Engelbrechtová and László Kontler for their support, as well as the staff of the history department at ceu, in particular Mónika Nagy, for their logistic expertise. All but one of the chapters originated out of papers delivered at a conference at the Central European University (ceu) 10–​12 November 2016, organized by the ceu together with Palacký University Olomouc and Grotiana Foundation, on the topic of the law of nature and of nations in early-​modern sacred polity. Markus Totzeck joined the project later, while the papers by Jana Engelbrechtová and Laetitia Ramelet appeared in Grotiana 40 (2019). With her crucial contribution, Dominique Bauer joined Stefanie Ertz and Adriana Luna-​Fabritius in pinpointing in this volume crucial episodes in the development of natural law in sacred polities. Previous commitments of William Bain, Johan Olsthoorn and Tobias Schaffner prevented their contribution to the conference from appearing in this volume. See ­chapter 6 (‘Hugo Grotius and the God of International Society’) in William Bain, The Political Theology of International Order (Oxford: Oxford University Press, 2019); Johan Olsthoorn, ‘Grotius on Natural Law and Supererogation’, Journal of the History of Philosophy 57/​3 (2019), 443–​469; Tobias Schaffner, ‘The Eudaemonist Ethics of Hugo Grotius (1583–​1645): Pre-​Modern Moral Philosophy for the Twenty-​ First Century?’ Jurisprudence 7 (2016), pp. 478–​522. I thank my co-​organisers Jana Engelbrechtová and László Kontler for their hard work in making the conference a success.

Notes on Contributors Dominique Bauer is Professor of history at ku Leuven, Faculty of Architecture and a member of the gemca at UCLouvain, and works on the awareness of time, temporality, history and subjectivity between cultural history and cultural philosophy. She has published in this framework on twelfth century canon law (Ivo of Chartres) and the emergence of legal subjectivity and proceduralism in its cultural-​historical context, on the history of international law, and on Francisco Suárez, custom and history, among others with Cambridge University Press, Peeters Leuven, Eleven International Publishing, the Journal of the History of International law and the Zeitschrift der Savigny-​Stiftung für Rechtsgeschichte. She delivered various papers for the Carlsberg Academy conferences on Medieval Legal History, published by Djøf Publishing. She has recently co-​edited, with Randall Lesaffer, History, Casuistry and Custom in the Legal Thought of Francisco Suárez (1548–​1617) with Brill. Thomas Behme is Faculty Member (wissenschaftlicher Mitarbeiter) at the Institute for Philosophy, Freie Universität Berlin. He works on the philosophy and scientific history of the seventeenth century and is mainly engaged in a critical edition of the Works of the mathematician and philosopher Erhard Weigel. Seven volumes have already been published, most recently the miscellany Kleine Schriften zur Logik, Logistik und zum Begriff der Mathesis (Clavis Pansophiae 3,6). Stuttgart-​Bad Cannstatt 2021. His doctoral thesis at the University of Göttingen in 1992 had been on Samuel von Pufendorf: Naturrecht und Staat (Göttingen 1995), and he also edited the Elementorum Jurisprudentiae Universalis Libri Duo of that author (Berlin 1999) and its English translation as Two Books of the Elements of Universal Jurisprudence (Indianapolis 2009). He is author of numerous articles on Pufendorf and Weigel in conference publications. Hans W. Blom upon retiring from Erasmus University Rotterdam, was 2011–​13 daad Professor at the University of Potsdam. He has also taught at Cambridge University, the University of Buenos Aires, and the University of Wisconsin-​Madison. Hans publishes on early-​modern (Dutch) political thought, in particular republicanism, public morality, on Spinoza, Grotius. His edited works include Property,

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Piracy and Punishment: Hugo Grotius on War and Booty in De iure praedae (Brill, 2009), Monarchisms in the Age of Enlightenment (University of Toronto Press, 2007), Grotius and the Stoa (Van Gorcum, 2004), Hobbes: The Amsterdam Debate (Olms, 2001), and Sidney: Court Maxims (Cambridge University Press, 1996). He is editor-​in-​chief of the journal Grotiana. Jiří Chotaš is a research fellow at the Institute of Philosophy of the Czech Academy of Sciences. His interests include political philosophy, certain aspects of law (especially human rights, natural law, and international law), theory of knowledge and metaphysics, and theory of higher education. He has published numerous articles on Hegel, Kant, Humboldt, Rousseau, Locke, and Hobbes and edited An Ethical Modernity? Hegel’s Concept of Ethical Life Today (2020, with Tereza Matějčková), Krankheit des Zeitalters oder heilsame Provokation? (2016, with Martin Bondeli and Klaus Vieweg) and Metaphysik und Kritik (2010, with Jindřich Karásek and Jürgen Stolzenberg). Alberto Clerici is Associate Professor of History of political thought at the Università Niccolò Cusano in Rome. He earned his PhD in History of political thought from the Università di Roma La Sapienza (2004). He is Associate editor of the Brill series History of European Political and Constitutional Thought, and member of the Editorial Board of the journals Grotiana (Brill) and Storia del pensiero politico (Il Mulino). His research interests focus on early modern European political thought, natural law, the law of nations, and constitutionalism. His publications include two monographs on Dutch early modern political thought , an article in Grotiana (2019), and chapters in the volumes Trust and Happiness in the History of European Political Thought (2017), Nicholas of Cusa and the making of the Early Modern World (2019) and Crisis and Renewal in the History of European Political Thought (2021). Stefanie Ertz studied Philosophy, Literature and and Art History at Dresden and Berlin (Humboldt University). She wrote her PhD thesis on mutual interferences between natural law theories and biblical hermeneutics in Grotius, Hobbes and Spinoza. She has since collaborated on diverse research and edition projects and is currently preparing a larger research project in the field of early modern natural law theory.

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Arthur Eyffinger is a classicist and law historian. He was on the research staff of the Grotius Institute (1970–​1985), and co-​founder and Secretary of the Grotiana Foundation (1977–​2000). A former Head Librarian of the International Court of Justice (1987–​2003), he is currently Director of the Judicap Research Centre (f. 2003; www.judicap.com.). His research and publications focus on Grotian and seventeenth-​century studies, along with the history of international law, and notably so the role and record of the International Courts at The Hague. Heikki Haara is a Lecturer of Political History in the Faculty of Social Sciences and Visiting Fellow in the Helsinki Collegium for Advanced Studies at the University of Helsinki. His research interests have principally been early modern moral and political thought. He has been a visiting researcher at the universities of California, Berkeley and Oxford and published articles in academic journals such as Journal of the History of Ideas, Political Theory and Journal of Scottish Philosophy. He is the author of Pufendorf’s Theory of Sociability: Passions, Habits and Social Order (Springer, 2018) and the co-​editor of Rights at Margins: Historical, Philosophical and Legal Perspectives (Brill, 2020) and Passions, Politics and the Limits of Society (de Gruyter, 2020). Mads Langballe Jensen is a historian of Early Modern political thought with a particular interest in theories of natural law. He gained his PhD in History from University College London, and now holds a Carlsberg Reintegration Fellowship at the Saxo Institute, University of Copenhagen. His research explores the ways theories of natural law were developed and used to tackle religious, legal, and political problems at different times and in different places, from the Protestant reformation of the sixteenth century, during the Enlightenment in Denmark-​ Norway, to European slave trade and colonization in West Africa and the West Indies. He has published articles in a number of journals and edited volumes, including History of Political Thought, History of European Ideas, and Intellectual History Review. His first book is A Humanist in Reformation Politics: Philipp Melanchthon on Natural Law and Political Philosophy (Brill, 2019). He is currently working on his second book on the uses of natural law in Danish colonialism in West Africa and the West Indies, c. 1660–​1850. Adriana Luna-​Fabritius is an Academy of Finland Researcher at the Department of History of the University of Helsinki. She has worked and published on Early Modern

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languages of republicanism, natural law and political economy in the Spanish monarchy, especially Naples, Catalonia and Piedmont since the 1990s. Her research expands to include the transformation of imperialism and colonialism through legal, scientific and political practices and ideas of the communicating networks of the Spanish monarchy in Early Modern times. Before arriving at the University of Helsinki in 2009 she was appointed assistant professor in Western political thought in the history department of the Centre for Economic Research and Education (cide) in Mexico. Luna-​Fabritius is the current president of the European Society for the History of Political Thought and associate editor of its book series History of European Political and Constitutional Thought (Brill). She is affiliated with the following research groups: “Cameralism as a European Political Science: A Reassessment”; Società Italiana per la Storia dell’Età Moderna; “International Research Network: Natural Law 1625–​1850”; and the Helsinki Centre for Intellectual History. Denis Ramelet received the degree of Doctor of Law from the University of Lausanne (Switzerland), with a PhD thesis about usury in Antiquity (Le prêt à intérêt dans l’Antiquité préchrétienne: Jérusalem, Athènes, Rome. Schulthess, 2014). Between 2012 and 2015, he trained as a notary. From 2015 to 2018, he was a postdoctoral researcher in philosophy at the University of Neuchâtel (Switzerland), involved in a research project on Samuel Pufendorf funded by the Swiss National Science Foundation. In 2018, in Lausanne he opened a bookshop specializing in humanities and theology. His main fields of interest and research are history and philosophy of law (notably natural law), metaphysics, natural theology and, in general, Aristotelian philosophy. József Simon (1974) is Associate Professor at the Department of Philosophy of the University of Szeged, Hungary. He received his PhD at the University of Göttingen in Germany (2008). His interest of research focuses on the history of Western philosophy between thirteenth and seventeenth centuries with a special emphasis on Eastern Europe. He has published several papers and books in Hungarian, German and English concerning the history of philosophy in Early Modern Hungary, most notably Die Religionsphilosophie Christian Franckens (1552-​1610?): Atheismus und Radikale Reformation im Frühneuzeitlichen Ostmitteleuropa (Wolfenbutteler Forschungen Bd. 117, Verlag Harrassowitz 2008).

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Markus M. Totzeck Dr. Theol. (University of Heidelberg), Pfarrer, is a postdoctoral research associate at the Institute for Religion and Society (Institut für Religion und Gesellschaft), Ruhr-​Universität Bochum, where he teaches practical theology. He is also working as a pastor in the Evangelical Church of Westphalia. His main areas of research are the relationship between religion and law in Early Modern history, Calvinism, homiletics, and poimenics. He is the author of Die politischen Gesetze des Mose. Entstehung und Einflüsse der politia-​ judaica-​Literatur in der Frühen Neuzeit (Göttingen, 2019), which won the J.F. Gerhard Goeters Award. He is currently working on a monograph on the legal dimensions of sermons and Friedrich D.E. Schleiermacher.

­c hapter 1

Introduction Hans W. Blom In the political competition between the religions of the sixteenth and seventeenth centuries, the laws of nature and of nations played a crucial role. Universal and supranational in scope, these vocabularies were a means of communication between opposing camps as much as a further area for disagreement and debate. Reformation in its various shades and shapes as well as the Counterreformation invested in articulating their understanding of natural law situated somewhere between eternal and civil law and of the law of nations, sometimes defining their own exceptional state of true believers viz-​ a-​viz the rest of the world. This way the languages of natural law and the law of nations were part and parcel of the ideological self-​identification of the sacred polities of the sixteenth and seventeenth centuries. How did this particular interest to explore the law of nature and ius gentium in the religious setting of Early Modern states originate in the first place and what was the dynamics of the ensuing debates both internal to each polity and between them? Was Early Modern natural law specifically Protestant as some claimed, or Christian in a more general sense? Does it represent a secularizing turn, or are such claims just another element of the debates? This book studies answers to these questions from their early articulation in Lutheranism to their reverberation in the Neapolitan Enlightenment and the writings of Giambattista Vico. In the unfolding of the arguments in this book, the special and diverse interaction between church, law, and politics will gain shape and sense, pointing towards the kind of relationship that we sometimes see in private life: Can’t live with them, can’t live without them. This is all the more true, since there was –​and is –​no consistent and undisputed definition of the three notions present in this book’s title. In the words of Ian Hunter: ‘Emerging at the unstable interface of theology, ethics, politics and jurisprudence, early modern natural law was not so much a discipline as a series of cross-​cutting idioms for formulating norms for politics, religion and law’.1

1 Ian Hunter, ‘The invention of human nature: the intention and reception of Pufendorf’s entia moralia doctrine’, History of European Ideas, 45 (2019), pp. 933–​952, at p. 933.

2 Blom Central to this volume are the Leiden context and Hugo Grotius as its most important exponent. Although this has not always been the emphasis in studies of Early Modern natural law, this volume is not unique in this respect. Grotius has been rediscovered over the last half-​century as the inceptor of natural law2 that the early eighteenth century already considered him to be. More recent attempts to explain modern globalism from Grotius’s insistence on individualism, property and international trade, if not outright colonialism place him among the forebearers of neo-​liberalism.3 This very instability of the interface between theology, ethics, politics and jurisprudence goes a long way to explain the creative tension between the idea of sacred polity and law. Calling a political entity sacred is to consider it under the aegis of a deity in some sense of religious understanding. Obvious candidates for such religious discourses in the late sixteenth and early seventeenth centuries were the various Christian denominations that had emerged in competition during the Reformation. One could speak of a Lutheran, a Catholic or a Calvinist sacred polity, if that would not be too general in view of the more fine-​grained self-​articulation of actual existing polities. ‘Sacred’ is what religious communities believe it to be, such as the frame of a ‘New’, or ‘Dutch Israel’ that looked upon the Republic of the Seven Provinces as a second Israel, guided by God out of (Hapsburg) captivity, and in sacred bond committed to live according to God’s special commands. Similar notions of exceptionalism can be found in other political communities, up to and including the ‘City upon a Hill’4 of Puritan America. Moreover, American exceptionalism also 2 See e.g. Jerome Schneewind, The Invention of Autonomy. A History of Modern Moral Philosophy (Cambridge: Cambridge University Press, 1997); Knud Haakonssen, Natural Law and Moral Philosophy. From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 2012); Stephen Darwall, ‘Grotius at the Creation of Modern Moral Philosophy’, Archiv für Geschichte der Philosophie, 94 (2012), pp. 296–​325; Frank Grunert. The Reception of Hugo Grotius’s De iure belli ac pacis in the Early German Enlightenment’, in Early Modern Natural Law Theories. Context and Strategies in the Early Enlightenment, ed. by T.J. Hochstrasser and P. Schröder (Dordrecht: Kluwer Academic Publishers, 2003), pp. 89–​105. 3 See i.a. Renée Jeffery, Grotius in International Thought (New York: Palgrave Macmillan, 2006); Andrew Fitzmaurice Sovereignty, Property and Empire 1500–​2000 (Cambridge: Cambridge University Press, 2014). 4 John Winthrop, A Model of Christian Charity, sermon preached in 1630, first published in Collections of the Massachusetts Historical Society (Boston, 1838), 3rd series 7, pp. 31–​48: ‘We shall find that the God of Israel is among us, when ten of us shall be able to resist a thousand of our enemies; when He shall make us a praise and glory that men shall say of succeeding plantations, “may the Lord make it like that of New England.” For we must consider that we shall be as a city upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a by-​word through the world.’

Introduction

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points to possible implications for the law of nations, since a manifest destiny like a divine reason of state can easily be seen to ‘break the law’. Not all sacred polities are understood as exception, while the sacred presupposes sacred space and sacred time.5 Moreover, as Jonathan Sheehan notices: ‘The discovery that all religion needs a place for its performance was a child of religious controversy’,6 whether that place is Jeruzalem, Mekka Rome, Wittenberg or Dordrecht. The Protestant appropriation of Catholic churches and by slaying the statues transforming these into the ‘public church’ where Moses and Aaron preside together, demonstrated God’s providential presence in burgeoning Protestant society. References to Old Testament warfare and violence justified and sanctified revolt and war in defending new sacred polities. It equally invited sacred histories detailing God’s hand in history.7 Political theologies have been articulated and changed in specific historical situations, like Luther’s doctrine of the two regiments/​kingdoms, or the Calvinist doctrine of double predestination and the Pauline notion of political authority. Logically it is possible to distinguish religious sacred objects from civic sacred objects, for example the Vatican is different from the Forum Romanum, but arguably only by degree. In actual fact, the religious and the civic interrelate in ambiguous ways. This is reflected in the various attempts in the last century or so to define the sacred (and the profane). The sacred or the holy, as in saints, sanctification, desecration, grace, of course is present in the religious language of the world religions, but in different shades and meanings. The Catholic saint is unlike the true believer of Protestantism as in the Latter Day Saints, in nature and function. The godly nature of politics and of the law thus is expressive of an ideological stance in political theology. Just as natural law and law of nations, the notion of sacred polity has different shades of meaning, that do not exclude each other. A sacred polity is, for example, the mystical body of the church, but also a religiously defined community as in the ‘Godly’ or the ‘Chosen’; it can also refer to a body politic that understands itself as embodying a religious identity, and everything in between. In some approaches to the history of civilization, the sacred has obtained a more principled definition. This 5 Cf. Mircea Eliade, The Sacred and the Profane: The Nature of Religion, trans. Willard R. Trask (New York: Harper Torchbooks, 1961). 6 Jonathan Sheehan, ‘Temple and Tabernacle: The Place of Religion in early Modern England’, in Making Knowledge in Early Modern Europe. Practices, Objects, and Texts, 1400–​1800, ed. by P. H. Smith and B. Schmidt (Chicago: University of Chicago Press, 2007), pp. 248–​272, at p. 250. 7 Bernhard Häring, Das Heilige und das Gute. Religion und Sittlichkeit in ihrem gegenseitigen Bezug (Krailing vor München: Wewel, 1950) aims at identifying the sacred and distinguishes two responses to it: ceremonial (Kultus) and moral (Ethos).

4 Blom volume touches on these latter topics but does not engage with them in a principled manner. Sacred polities as a term is mainly descriptive in what follows. In the course of these chapters, this book finds that political context, religious and legal debate and theory are best studied in combination, if only because of the ambiguity of the sacred between city and religion, and that of natural law between God’s moral order and the rules of sociability. This complexity has traditionally asked for some teleological interpretative schema. Dominant paradigms are that of secularization, more recently that of confessionalization, while modernization reduces the interaction between religion and law to a footnote of the larger secular trend producing ‘the modern world’, and ‘the modern worldview’. The latter sees modern science, the discovery of the New World, and the rise of the nation state, with its rationality (reason of state) and bureaucracy as an autonomous driving force that inevitably pulled along the articulation of natural law and law of nations as well as the submission of religion to political goals. But such global pictures are inevitably teleologically charged and presupposing a historical development that it wants to explain, this is not what this volume aims at. By looking into the nuts and bolts of the historical processes and considering the micro-​processes that make up the path of historical development, the contributors to this book highlight the actual actions and interactions that show not so much a grand historical telos, but the extent to which the parties to the drama are inevitably intertwined. In that sense the various chapters also reflect upon our present-​day predicament, where –​more so than in the Early Modern period –​religion has been under the suspicion of being ultimately irrelevant, even while the post-​secular age has been announced.8 One should not overlook what Christoph Strohm has termed ‘the productive force of confessional competition’: ‘From confessional competition and warfare, models of legal management of conflicts between mutually exclusive truth claims arose. This was essentially a matter of the countervailing confessionalizing and secularizing tendencies at the beginning of modernity.’9 8

9

Jürgen Habermas, Between Naturalism and Religion, tr. by C. Cronin (Cambridge: Polity, 2008) reflects on the enduring importance of religion and the limits of secularism under conditions of the postmetaphysical in what Habermas calls the post-​secular age; but see also John Torpey, ‘A (Post-​) Secular Age? Religion and the Two Exceptionalisms’, Social Research, 77/​1 (2010), pp. 269–​296; Giorgi Areshidze, ‘Taking Religion Seriously? Habermas on Religious Translation and Cooperative Learning in Post-​secular Society’, American Political Science Review, 111/​4 (2017) pp. 724–​737. ‘Die productive Kraft konfessioneller Konkurrenz’, in Reformation und Recht. Ein Beitrag zur Kontroverse um die Kulturwirkungen der Reformation, ed. by Christoph Strohm (Tübingen: Mohr-​Siebeck, 2007), pp. 131–​171, at p. 160–​1 ‘Konfessionelle Konkurrenz und

Introduction

5

Is this a matter of interreligious competition bringing about of religious irrelevance? Or is this competition itself proof of the continued relevance of religion? Looking at the development of natural law and the law of nations in sacred polities will allow to take this dilemma by the horns. Confessionalization refers to the process of the increasing level of social disciplining that characterizes the Early Modern confessional state. Both within and without the state churches, the believers and citizens underwent increasing control, of their morals, their public behavior, executed by church councils and state bureaucracy. In its original formulation –​by Heinz Schilling, Wolfgang Reinhard and their collaborators10 –​confessionalization was the most important effect of the political and religious fragmentation during the reformation. Although the reformation was the starting point, this process of confessionalization and social disciplining was not limited to Protestant nations only but happened across the denominational spectrum. Thus, the reformation was the motor behind the modernization of the state, but modernization was not an effect of Protestantism as such, as previously Max Weber and Ernst Troeltsch had defended.11

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konfessioneller Streit haben indirekt dazu beigetragen, Modelle der rechtlichen Zähmung von Konflikten sich ausschließender religiöser Wahrheitsansprüche zu entwickeln. Es geht hier wesentlich um die grundlegende Frage des Verhältnisses von konfessionali­ sierenden und säkularisierenden Tendenzen am Beginn der Moderne.’ See for a similar argument: Forgetting Faith? Negotiating Confessional Conflict in Early Modern Europe, ed. by Isabel Karremann, Cornel Zwierlein and Inga Mai Groote (Berlin: De Gruyter, 2012). Wolfgang Reinhard, ‘Sozialdispziplinierung –​Konfessionalisierung –​Modernisierung. Ein historiographischer Diskurs’, in Die Frühe Neuzeit in der Geschichtswissenschaft. Forschungstendenzen und Forschungserträge, ed. by N. Boskovska Leimgruber (Paderborn: Ferdinand Schöningh,1997), pp. 39–​ 55; Heinz Schilling, ‘Confessional Europe’, in Handbook of European History 1400–​1600, Late Middle Ages, Renaissance and Reformation, vol ii: Visions, Programs and Outcomes, ed. by Thomas A. Brady, Heiko A. Oberman and James D. Tracy (Leiden: Brill, 1995), pp. 641–​681; R. Po-​chia Hsia, Social discipline in the Reformation. Central Europe 1550–​1750 (London/​New York: Routledge, 1989). See Anthony J. Carroll, ‘The Importance of Protestantism in Max Weber’s Theory of Secularisation’, European Journal of Sociology /​Archives Européennes de Sociologie /​ Europäisches Archiv für Soziologie, 50/​1 (2009), pp. 61–​95; Arie L. Molendijk, ‘Ernst Troeltsch’s Lasting Contribution to the Historiography of Christianity’, Mitteilungen der Ernst-​Troeltsch-​Gesellschaft, 18 (2005), pp. 16–​37, at p. 24: ‘On the contrary, Troeltsch was looking for the contribution of various Christian groups and principles to the rise of the modern world’. Ernst Troeltsch, ‘Die Bedeutung des Protestantismus für die Entstehung der modernen Welt’, in Idem, Schriften zur Bedeutung des Protestantismus für die Entstehung der modernen Welt [1906–​1913], Kritische Gesamtausgabe, 8, ed. by Trutz Rendtorff and Stefan Pautler (Berlin /​New York: De Gruyter, 2001), pp. 199–​316.

6 Blom Against the social-​ discipline thesis, historians like Christoph Strohm, Mathias Schmoeckel and Michael Stolleis have returned to the Weber thesis and defended an epistemological argument about the juridical effects of Protestantism. For Michael Stolleis, ‘to talk of the “impact” of the Reformation reduces to the triviality that the whole Early Modern period stood under the aegis of reformation and church reform.’12 As a background to our present concerns the Reformation is important, but the debate between religion and natural law can barely be said to have started with the Reformation. More in particular, it has been (correctly) remarked that the founders of modern natural law invariably were Protestants, but it would certainly be incorrect to say that modern natural law is a Protestant invention.13 Even a Protestant scholar like David VanDrunen argues that Reformation natural law is a straightforward continuation of the Thomist tradition, and that the resistance theories of the sixteenth century are no exception to this genealogy.14 Knud Haakonssen understands this strand as a continuation of the intellectualism and value objectivism of Scholasticism and contrasts it with another sort of natural law, a new kind of voluntarism that reduces natural law to human nature and in particular to human will from which all morality arises. This is the natural law of Thomas Hobbes (1588–​1679), Samuel Pufendorf (1632–​ 1694), Adam Smith (1723–​1790), triggered by the ambivalent Hugo Grotius (1583–​1645). The intellectualist natural law with its ethical realism continued to see God as the author of the natural law, with the simile of natural law as the law written in the heart of man, with conscience and recta ratio supported by God’s 12

13

14

Michael Stolleis, ‘Reformation und Verrechtlichung am Beispiel der Reichspublizistik’, in Reformation und Recht. Ein Beitrag zur Kontroverse um die Kulturwirkungen der Reformation, ed. by Christoph Strohm (Tübingen: Mohr-​Siebeck, 2007), p. 69: ‘Von einem „Einfluss“ der Reformation zu sprechen, läuft auf die Trivialität hinaus, dass die gesamte Frühe Neuzeit im Zeichen von Reformation und Kirchenreform stand’. See also: Das Konfessionalisierungsparadigma. Leistungen, Probleme, Grenzen. Bayreuther Historische Kolloquien, 18, ed. by Thomas Brockmann and Dieter J. Weiss (Münster: Aschendorff, 2013). Knud Haakonssen, ‘Protestant Natural Law Theory: A General Interpretation’, in New Essays on the History of Autonomy: A Collection Honoring J. B. Schneewind, ed. by Natalie Brender and Larry Krasnoff (Cambridge: Cambridge University Press, 2002), pp. 92–​ 109: ‘[T]‌he different natural law theories were potent weapons in a variety of moral, theological and political battles, and they were, in large measure, shaped for such purposes’. David VanDrunen, ‘The Use of Natural Law in Early Calvinist Resistance Theory’, Journal of Law and Religion, 21/​1 (2005/​2006), pp. 143–​167, at p. 144: ‘[T]‌he resistance theories of these Calvinist writers were neither radically original nor particularly rooted in distinctively Reformed theology.’

Introduction

7

revelation, and its realization in history through Providence. Operating at the border of theology and philosophy this natural law was sensitive to politico-​ religious issues in ways that the strictly philosophical approach of the new voluntarism was not. The new voluntarist strand, on the other hand, took distance from theology and was part of the rise of philosophy as a discipline, although that did not by itself unburden it from religious involvement. Natural jurists had a stake in the political organisation of the church and in the religious justification of sovereignty, and more often than not the latter played an important role in the particular articulation of natural law principles and applications. Sometimes the dominant issue was to defend one’s position against an aggressive church. Notwithstanding the separation of philosophy from theology these conflicts were not only about secularization, and they could easily cut across otherwise important doctrinal distinctions in natural law. Toleration is a case in point. Other practical issues also come to mind. The book as a whole shows how sacred and profane interact, interplay and hang together when it comes to issues as the limits of civil authority, questions of political legitimacy, resistance theory, societal stability, conceptions of the common good, value pluralism, toleration and identity (‘fatherland’, exceptionalism, God’s own people, the revolution of the Saints). By presenting Early Modern writers on natural law –​preceding and following Hugo Grotius, from different denominations –​this volume shows what the religious background was that helped shape modern natural law around 1600, and what the issues were that as a consequence had to be addressed in both law and theology. Lutheran, Catholic, Calvinist and heterodox attempts to find answers to questions like how to square the universality of God’s creation with the exceptionalism of the select few who live in the certainty of God’s grace and who follow God’s commands thanks to having obtained the (true) revelation; or how to rule a country that is composed of both true believers and those outside the fold; or how to deal with heretics and pagans in international affairs. The answers to such questions often depended on other decisions –​theoretical or practical –​that set the boundaries to the answers available. In the following chapters there are many examples of such practical issues that determined particular positions in natural law, as happened, for example, when the French Monarchomachs embraced Stoicism to support their claims against the French king, or when Samuel Pufendorf tried to find his way between the demands of the Lutheran ministers and those of the princes of the Fürstenstaat. In this to and fro between practical issues and doctrinal positions both the presumed universalism of natural law and the exceptionalism of Christianity contain promises of ideological victory, provided the right kind of proof can

8 Blom be produced. Philosophers argue from reason, theologians from belief, sometimes in harmony, sometimes at cross purposes. The history of the law of nature and the law of nations shows many remarkable episodes where religion and politics develop together. In that respect it is a Christian thing, more or less, even while important conceptual qualifications were introduced in classical philosophy, in interaction with which the early Church Fathers expressed their conviction that the law of nature and God’s commandments together provide the moral and political guidance in this world. It was, for example, John Chrysostom’s stated principle that ‘when God formed man, he implanted within him from the beginning a natural law … He gave utterances to conscience within us; and made the knowledge of good things, and of those which are the contrary, to be self-​taught.’15 Others concurred. Origen distinguishes two laws ‘one being the law of nature, of which God would be the legislator, and the other being the written law of cities’.16 Origen enlarged here on Irenaeus who in Against Heresies had God ‘inscribe the natural law, or the Decalogue upon the hearts of men’.17 The two Church Fathers agreed that such basic principles as ‘thou shalt not kill’ are commanded by God as self-​evident norms, not for some extrinsic reason. Underlying this natural law are the Golden Rule and the requirements of human society. Chrysostom and Origen could rely on Philo of Alexandria and Flavius Josephus who had praised the Mosaic law as ‘imperishable, and stamped by immortal nature on

15 Chrysostom, Homilies on the statues, 12.9 (Oxford: Parker, 1842), p. 209. See also Ernest Troeltsch, The Social Teaching of the Christian Churches. Trans. Olive Wyon (New York: Harper. 1960), p. 150: ‘Since to educated Christians this Law of Nature seemed to be part of the order of creation, the content of the Decalogue, and an integral part of the Christian moral law, and also of the Logos who was incarnate in Christ, this “Natural Law” also seemed to them to be a directly Christian doctrine’. 16 Origen, Contra Celsum, 5.37, tr. by Frederick Crombie, in Ante-​Nicene Fathers: The Writings of the Fathers down to A.D. 325, Vol. 4. Fathers of the Third Century -​Tertullian; Minucius Felix, ed. by Alexander Roberts, James Donaldson. Revised and Chronologically arranged with brief prefaces and occasional notes by A. Cleveland Coxe (New York: Christian Literature Publishing Co., 1885.), p. 985. 17 Irenaeus, Adversus haereses, 4.15; tr. Against Heresies in Ante-​Nicene Fathers, Vol. 1: The Apostolic Fathers, Justin Martyr, Irenaeus, ed. by Roberts and Donaldson, p. 479: ‘At first God deemed it sufficient to inscribe the natural law, or the Decalogue, upon the hearts of men; but afterwards He found it necessary to bridle, with the yoke of the Mosaic law, the desires of the Jews, who were abusing their liberty; and even to add some special commands, because of the hardness of their hearts’.

Introduction

9

the immortal mind’.18 It is plausible to see here a mutual influence of Stoicism and Christianity, as for example in the case of Chrysostom.19 The sixteenth and seventeenth centuries –​the Age of Reformation –​ take a special position in this historical development, not only because that period saw the increased dogmatic debate between the fragmented Christian churches for a more pregnant and more sustained expression of alternative interpretations, but also since the coeval appearance of colonial exploration and exploitation introduced a completely new set of questions about the relationships between pagan/​non-​Christian nations and the ordo christiana. The revealed discourse is not too precise on these issues, however, and needs philosophy for further details. The Golden Rule is found in ‘Let not thine eye be envious when thou giveth alms’. (Tobias 4:16) and ‘Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets’ (Mattheus 7:12). Paul’s view on political obedience and the law written in the heart (Romans 2, 14–​15), together with the general cosmology of the Genesis story provide a framework for a notion of natural law, additional conceptual structures be they Stoic or Aristotelian in origin were needed to develop that framework into something coherent and applicable. The Ciceronian take on natural law and its Christian development by Augustine and the Thomist natural law are the prime examples here. Yet again, it is the circumstance of practice and history that provides the fruitful medium for the development of natural law, and without the thriving practice of law in ancient Rome and its registration in the Corpus iuris civilis (sixth century) and the Corpus iuris canonici (twelfth and thirteenth centuries) much of the philosophy and theology of natural law might have lost its meaning and historical significance. The articulation of systematic theology created a bridge between philosophical concepts and the legal doctrines –​the Mosaic law and Roman law –​and the political challenges of the time. Concepts like ius naturae, ius gentium, ius civile, and the distinction between leges and iura became increasingly sophisticated and allowed for a wider applicability of this political theology. If this is true, then why is divine revelation of moral precepts needed? Thomas had answered in question 91 of his Summa theologiae, i-​i i: 18 19

Quod Omnis Probus Liber Sit (Every Good Man Is Free), vii.46, in The Complete Works of Philo: Complete and Unabridged. Trans. C. D. Yonge (Peabody, MA: Hendrickson, 1993), pp. 682–​97, at p. 688. Constantine A. Bozinis, ‘The Natural Law in John Chrysostom’, in Revisioning John Chrysostom. New Approaches, New Perspectives, ed. by Chris de Wet and Wendy Mayer (Leiden: Brill, 2019), pp. 493–​524.

10 Blom Because of the lack of certitude in human judgment, especially with respect to particular and contingent matters. In order, therefore, that man can know without doubt what for him is to be done and what is to be avoided, it was necessary that in his own acts he be directed by a law divinely given, concerning which law it is obvious it cannot err.20 As Thomas argued: ‘the extrinsic principle moving to good is God, Who both instructs us by means of His Law, and assists us by His Grace’.21 Thus, against the philosophers’ claim that natural law has been introduced by philosophers, in particular those of Stoicism, here we see argued that natural law is part and parcel of Christianity, if only because God’s command gives certainty where reason supposedly wavers. Defendants of a specifically Christian, revelation-​dependent natural law along these lines claim on the one hand a natural world where laws must be obeyed and on the other a world of salvation where Christ rules, summarized in the Golden Rule and the command of love. On this view Christian natural law is the set of obligations that apply to mankind in general, because of God’s Creation of the world and the justification in Christ. Recently, Alexander Hollerbach defended this position anew. He moreover considered that secular natural law might well claim a foundational justification in human reason, yet that this claim fails.22 This is of course a (post-​)modern point of view, that 20 21

22

Quoted from P.E. McKeever, ‘Theology and Natural Law’, Proceedings of the American Catholic Theological Society, 21 (1966), pp. 223–​237, at p. 227. S. Th., i–​i i,90 pr., cf. Grotius ibp, Prol 13, 14. Cf. John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998). Leo Strauss gives a similar analysis in Natural Right and History (Chicago: University of Chicago Press, 1953), p. 75: ‘The mere fact that philosophy and revelation cannot refute each other would constitute the refutation of philosophy by revelation’. Alexander Hollerbach, ‘Das christliche Naturrecht im Zusammenhang des allgemeinen Naturrechtsdenkens’, in Naturrecht in der Kritik. ed. by Franz Böckle and Ernst-​Wolfgang Böckenförde (Mainz: Matthias-​Grünewald-​Verlag, 1973), pp. 9–​38; see for a similar argument: David Novak, Athens and Jerusalem: God, Humans, and Nature (Toronto: University of Toronto Press, 2019); C. Scott Pryor, ‘God’s Bridle: John Calvin’s Application of Natural Law’, Journal of Law and Religion, 22/​1 (2006/​2007), pp. 225–​254. Pryor points out the ecumenical tendencies in this Christian natural law literature. Before them, Leo Strauss argued similarly in Spinoza’s Critique of Religion, trans. Elsa M. Sinclair, (New York: Schocken, 1965), at p. 29: ‘The genuine refutation of orthodoxy would require the proof that the world and human life are perfectly intelligible without the assumption of a mysterious God; it would require at least the success of the philosophical system: man has to show himself theoretically and practically as the master of the world and the master of his life; the merely given must be replaced by the world created by man theoretically and practically’.

Introduction

11

incorporates the criticism of the Enlightenment as a failed project, the supposedly unsurmountable arguments of relativism and nihilism, and the consequences of today’s liberal value-​pluralism.23 It hasn’t always been like that. The great instigators of modern natural law were convinced that man’s reason is sufficient to come to grips with the fundamental principles of justice, even if disagreement existed about the nature of their obligation. In the Grotian formula, the natural law is ‘a dictate of right reason’, and although right reason is an educated reason, it is assumed that this is shared by all mankind and thus points the way to a universal moral code. Before the claims of right reason, the man without revelation is not excused. Falling back on justification through Christ is, if we look at it closely, an attempt to formulate the greatest common factor, or overlapping consensus, of Christianity: that it is named after Jesus Christ. In the late sixteenth and early seventeenth centuries this would not have been sufficient argument. As Nicholas Hardy argued convincingly in his Criticism and Confession. The Bible in the Seventeenth Century Republic of Letters, humanist scholars and theologians were involved in a serious fight about their religious beliefs by means of literary criticism of the sacred texts.24 Not having given up on their doctrinal differences, the study of the texts and their historical contexts became a separate weaponry in the disagreements, instead of being a scientific and value-​neutral area of mutual understanding. Of course, we nowadays are not surprised: religion is not a matter of proof, nor of Vernunft, but of belief and beliefs differ. In the seventeenth century things were not different. Thus, both religion and reason are under-​determined and do not by some magical trick come to sorting out relativism or let alone skepticism, and the temptation is there to aim at a combination of the two swords, so to say, and make religion and reason both part of the weaponry. The so-​called Christian Enlightenment of the eighteenth century expressed this in its conviction that reason and revelation essentially agree and say the same thing.25 They help us in the right direction: to embrace

23

This position is to be distinguished from that of Carl Schmitt who opposed liberal value-​ pluralism with his political theology that identified the sacred with sovereignty as characterized by the state of exception; see his The Concept of the Political (Chicago: University of Chicago, 1996) and its defence in Robert A. Yelle, Sovereignty and the Sacred. Secularism and the Political Economy of Religion (Chicago: University of Chicago, 2018). 24 Nicholas Hardy, Criticism and Confession. The Bible in the Seventeenth Century Republic of Letters (Oxford: Oxford University Press, 2017). 25 See, for example, the by now classic study by David Sorkin, The Religious Enlightenment: Protestants, Jews, and Catholics from London to Vienna (Princeton: Princeton University Press, 2008).

12 Blom the law of nature as God’s law. Grotius seems to say so much in the prolegomena to his De iure belli ac pacis: Herein, then, is another source of law besides the source in nature, that is, the free will of God, to which beyond all cavil our reason tells us we must render obedience. But the law of nature of which we have spoken, comprising alike that which relates to the social life of man and that which is so called in a larger sense, proceeding as it does from the essential traits implanted in man, can nevertheless rightly be attributed to God, because of His having willed that such traits exist in us. … There is an additional consideration in that, by means of the laws which He has given, God has made those fundamental traits more manifest, even to those who possess feebler reasoning powers. … But sacred history, besides enjoining rules of conduct, in no slight degree reinforces man's inclination towards sociableness by teaching that all men are sprung from the same first parents.26 The law of nature as the dictate of right reason, that men can discover from their own nature is –​argues Grotius –​also given to us in God’s commands and supported by the story of the Creation in the Bible. Pryor gives this an unexpected, evangelical twist: ‘Natural law in the political realm is thus primarily a tool for crafting a civil order in which those who know God’s revealed will can express it in ways that can gain a hearing in the public square’.27 Or, as Grotius understood this, echoing Calvin: natural law makes men inexcusable before God.28 26 Grotius, ibp, Prol 12, 14.: [12] Et haec iam alia iuris origo est praeter illam naturalem, veniens scilicet ex libera Dei voluntate, cui nos subiici debere intellectus ipse noster nobis irrefragabiliter dictat. Sed et illud ipsum de quo egimus naturale ius, sive illud sociale, sive quod laxius ita dicitur, quamquam ex principiis homini internis profluit, Deo tamen asscribi merito potest, quia ut talia principia in nobis existerent ipse voluit. … [13] Accedit quod illa quoque ipsa principia Deus datis legibus magis conspicua fecit, etiam iis quibus imbecillior est ad ratiocinandum vis animi. … [14] Sed et historia sacra, praeter id quod in praeceptis consistit, affectum illum socialem non parum etiam eo excitat quod nos docet ab iisdem primis parentibus ortos homines omnes. … 27 Pryor, ‘God’s Bridle’, p. 233. See for a contrast Leo Strauss on John Locke: ‘The law of nature is indeed given by God, but its being a law does not require that it be known to be given by God, because it is immediately enforced, not by God or by the conscience, but by human beings’. Strauss, Natural Right and History, p. 223. 28 Hugo Grotius, Meletius, iii.20 (p. 109); Idem, Annotationes in Ep. ad Rom, i:19–​20, in Opera omnia theologica (Amsterdam: Blaev, 1679), ii.2, p. 676–​677. J. Calvin, Commentarius in epistolam Pauli ad Romanos, ad i:19 and 20, in Idem, In omnes Novi Testamenti Epistolas commentarii (Halle: Gebauer, 1834) vol i, pp. 1–​204, at p. 12–​13; and Idem, Institutiones, ii.2.13 (tr. Henry Beveridge, 1st ed Edinburgh: Calvin Translation Society,

Introduction

13

But let us not forget the warning of Mathias Schmoeckel: ‘While [historians] are only focussed on theology, religion and church, they fail to see the real dimension of the Reformation –​the decisive moment of the Reformation is the dynamic of the two realms, i.e that of the secularization of political rule, as well as that of knowledge and science’.29 As these and other recent publications testify, the interaction between theology and religion is a continuing debate, see for example the neo-​Calvinist writings –​from Kampen, The Netherlands and Grand Rapids, Michigan –​, that follow Abraham Kuyper and Herman Dooyeweerd and are now increasingly recalibrated against a new history of the reformed scholasticism of the seventeenth and eighteenth centuries.30 Similar motives drive the Radical Orthodoxy movement from Oxford around John Milbank, and of course the Encyclical Fides et ratio (1998) of Pope John-​Paul ii.31

Summary of the Chapters

With a focus on Hugo Grotius and the context from which he came to prominence, the opening chapter outlines a paradigmatic case of the interplay between natural law and the sacred polity. Following chapters look for the antecedents among the Monarchomachs, in Lutheran and Calvinist circles and in the Counterreformation. The appeal to natural law in the Monarchomach justification of war of intervention against tyrannical or heretical kings in

29

30

31

1846, p. 235): ‘Hence it is that every individual understands how human societies must be regulated by laws, and also is able to comprehend the principles of those laws. Hence the universal agreement in regard to such subjects, both among nations and individuals, the seeds of them being implanted in the breasts of all without a teacher or lawgiver’. ‘So lange ihr Interesse überwiegend auf Theologie, Religion und Kirche gerichtet ist, werden sie der eigentliche Dimension der Reformation nicht gewahr. –​-​Das entscheidende Moment der Reformation liegt jedoch in dem Wechselspiel beider Reiche, also der Säkularisierung der Herrschaft ebenso wie des Wissens und der Wissenschaften’, Mathias Schmoeckel, Das Recht der Reformation. Die epistemologische Revolution der Wissenschaft und die Spaltung der Rechtsordnung in der Frühen Neuzeit (Tübingen: Mohr, 2014), p. 298. H. Dooyeweerd, ‘Die Philosophie der Gesetzidee und ihre Bedeutung für die Rechts-​und Sozialphilosophie’, Archiv für Rechts-​und Sozialphilosophie, 53 (1967), i. Einführung, pp. 1–​ 30; iv. Fortsetzung und Schluss, pp. 465–​513; Idem, The Christian Idea of the State (Craig Press, Nutley, New Jersey, 1968); Rationality in the Calvinian Tradition, ed. by Hendrik Hart, Johan Van der Hoeven, and Nicholas Wolterstorff (Lanham, MD: University Press of America, 1983); David VanDrunen, Natural Law and the Two Kingdoms. A Study in the Development of Reformed Social Thought (Grand Rapids: Eerdmans, 2009). John Milbank, Theology and Social Theory: Beyond Secular Reason, 2nd edn (Oxford: Wiley-​ Blackwell, 2006).

14 Blom c­ hapter 3, an important Lutheran understanding of natural law in the work of Niels Hemmingsen, and the Calvinist reworking thereof in Franciscus Junius prove to be each in their own way variations on themes that in some aspects are of older date, but not in their detailed elaboration. The Jesuit Francisco Suárez aimed at taking back control and submit natural law to the exclusive reign of neo-​scholastic theology. In contradistinction, Antitrinitarians have been triggered by the universality claim of natural law, from a sectarian perspective, identifying it with natural religion rather than with law for unbelievers. The Lutheran, Calvinist, sectarian and neo-​scholastic discussions of natural law in the sacred polity and the law of nations that rules their interactions, all play a role in Grotius’s legal and political thought and its legacy. In the second part of the book, important aspects of that thought are discussed. At stake is the status of natural law in Grotius, in particular in relation to his understanding of the relations between state and church, but also the foundation of natural law as such, in the prolegomena of De iure belli ac pacis. While Grotius may have been the preceptor of Early Modern natural law, Samuel Pufendorf was no doubt its most effective propagator. The first professor of natural law, he professionalized the discipline and transformed it into a main stay of Lutheran polities. Pufendorf in this story is looked at from various angles: as the work of a (critical) Lutheran, as the work of reluctant Grotian and as that of a soi-​disant voluntarist. The book ends with an important reinterpretation of the impact of natural law, and of Grotius in particular, during the long Neapolitan Enlightenment, from the Revolt of Mas Aniello, to the Italian translation of Grotius’s De iure belli of 1777. So let us now present the chapters in more detail. In the opening essay, Arthur Eyffinger precisely brings out these elements in his short history of natural law amidst the religious debates and strife in the young Dutch Republic of the United Seven Provinces. Taking Hugo Grotius as his protagonist and by placing him in the context of his times, Eyffinger neatly introduces the core topics of this volume, discussing the interplay of law and theology, of politics and religion, and of the universal and the particular tracing their development throughout the writings of Grotius from 1600 to the end of his life in 1645. At various points Eyffinger preludes on themes in the other contributions to this volume, for example, the discussion of sovereignty in Alberto Clerici’s chapter, the natural history of priesthood (Stefanie Ertz), or the issue of voluntarism in the three chapters on Pufendorf. Evidently, Grotius’s connection to Melanchthon, Scholasticism and to Calvinist authors forms a connection to the chapters on Hemmingsen, Junius and Suárez, whereas the last chapter by Adriana Luna-​Fabritius mirrors the opening one in demonstrating the width

Introduction

15

of Grotius’s intellectual contribution in tracing his influence in the (early) Neapolitan Enlightenment. Chapters 3 to 7 present important and distinct religious perspectives on natural law, from the Lutheran perspective of Hemmingius to the neo-​Scholastic metaphysics of law of Francisco Suárez. First, Mads Jensen gives a fresh appraisal of the Lutheran approach in an influential book on natural law by Niels Hemmingsen, showing how this pupil of Melanchthon opens up natural law to man’s rational understanding and thereby to mankind in general, even while Scripture supports and inspires this understanding. This is a correction of the Lutheran doctrine of the two kingdoms/​regiments, a development already prefigured in Melanchthon’s suggestion that, a Christian must not necessarily follow the Mosaic laws but has the permission to follow those laws that cohere with the natural law, even if these have been instituted by pagan magistrates. I will show subsequently that the Roman law surpasses the laws of all other nations and really represents a kind of philosophy.32 What was only a programmatic statement with Melanchthon became a full-​ fledged legal theology with his pupil. In the words of Mads Jensen: Thus, the usefulness of the Decalogue as a summary of natural law depended on it corresponding with what reason could in fact determine on its own accord. In other words, what philosophers could say of the law of nature. This did not take away from the divine origin of natural law, or the more explicitly divine authority of the Decalogue, rather it underscored its universality. It emphasized how a Christian ruler, and not just the Israelite kings, were obliged to rule with the sword in one hand and the Decalogue in the other.

32

‘Tractabo enim scholasticam disputationem utilem studiosis, quod Christianis non sit necessarium uti legibus Mosaicis, sed quod liceat uti legibus, quae iure naturae consentaneae sunt, etiamsi ab Ethnicis Magistratibus conditae sunt. Deinde ostendam, Romanum ius antecellere legibus aliarum gentium, et vere quondam Philosophiam esse’, Philipp Melanchthon, De dignitate legum oratio (1539), in Corpus Reformatorum, vol xi, pp. 357–​364, at p. 357–​358; see also Guido Kisch, ‘Melanchthon und die Juristen seiner Zeit’, in Mélanges Philippe Meylan (Lausanne: Faculté de Droit de l’Université de Lausanne, 1963), vol ii, pp. 135–​150. See on Melanchthon now Mads Langballe Jensen, A Humanist in Reformation Politics. Philipp Melanchthon on Political Philosophy and Natural Law (Leiden: Brill, 2020).

16 Blom In ­chapter 4, Alberto Clerici questions the received opinion that Monarchomach political thought is only about resistance. He shows that Calvinist authors used Ciceronian natural law language as additional justification for their pleas for European sovereigns to intervene abroad in cases where citizens are suffering (religious) persecution by a tyrant. The Ciceronian reference is to the common humankind that we all belong to and that doesn’t allow us to suffer ill-​ treatment of fellow humans. Clerici interestingly develops his case by tracing the development of this argument in early Calvinist writings in connection with the French wars and the Dutch revolt, culminating in the Vindiciae contra tyrannos (1579). In the latter work Clerici finds premonitions of the full-​fledged natural law-​based theories of intervention in the writings of Alberico Gentili and Hugo Grotius. In this way the more general thesis is supported that the Calvinist background of Early Modern natural law is in origin an adventive argument, that gradually obtained a more central place in Calvinist political thought. The religious idea of a community of believers thus was generalized to the solidarity of the whole of mankind and found its ultimate justification in the laws that pertain to humankind as such. Of course, God is still the author of both his divine and the human law, but the innovative idea is that thanks to the natural law part of the theory of resistance, Christian princes could be called upon to wage war on Christian tyrants, independent from religious denomination. According to Clerici, from the scattered remarks of this eschatological piece of propaganda, it is possible to detect a minimal but important shift from a purely religious duty to help the innocents against tyrants, to a moral duty in the name of a Neostoic ‘humankind’, no longer specifically tied to a Christian cosmos. This expansion and radicalization of Huguenot views towards an ethics of a ‘responsibility to protect’ men as simple human beings is of course less a complete and mature process of secularization than the tactical juxtaposition and integration of different rhetorical strategies and philosophical traditions in order to achieve a political goal. Franciscus Junius –​also Calvinist but driven by an altogether different agenda –​during the last decade of his life a professor in Leiden wrote a study of the Mosaic law that explicitly discusses the relationship between the law of Scripture and the law of nature. In the presentation of Marcus Totzeck in ­chapter 5, Junius appears as an important connection between on the one hand Jean Calvin and Theodorus Beza and on the other the Protestant natural thinkers of the seventeenth century. This connection is multi-​faceted and ranges from an ontology of law, over universality and historicity of the law, to the several ways in which the ubiquity of the eternal law is translated into the advening laws: the divine and the human law. Here conscience and common

Introduction

17

notions play their role. Totzeck poses the question what role the Mosaic law has to play in the natural law theory of Junius. The short answer is that both function as measure the one for the other. The Mosaic law is the most perfect law we have because the work of God (although parts of it only apply to the chosen people); natural law is the law that is universally applicable (although human intellect is fallible in understanding it). Applying a distinction from natural law to the Mosaic laws helped historicizing laws in an interplay of universality and historicity.33 The challenge of universality of course is that it might very well be in the eye of the beholder only. In the radical reformation this has led to almost contrary positions as József Simon argues in c­ hapter 6. In a detailed comparison of two Transylvanian Antitrinitarians, Simon discusses the appeal to a rational religion in the multi-​religious world of Transylvania, where both Muslim and Orthodox dogma had to be addressed. Jacobus Palaeologus, who premised a universal desire for salvation, defended the way to salvation for all three religions, by arguing that circumcision is what saves the Jewish nation, as does Christ for Christians and Muslims. Christianity can be explained without cancelling Jewish ceremonies and Jewish ceremonies can be justified without negating the central role of Christ. The second Antitrinitarian, Christian Francken, equally went beyond the confessional setting of Antitrinitarianism, by confronting moral conceptions of revealed religions with a natural universalism of philosophy. Both theologians would fall victim to the Inquisition, Palaeologus by decapitation and Francken by imprisonment. For both Antitrinitarian authors, natural law functioned as a critical tool against claims for certainty of revealed religions. Palaeologus based his removal of the exclusivity of revealed religions on a universal enfolding of supranatural divine grace. Francken regarded the universalistic approach of radical reformation as a failed project, by emphasizing the conflict between positive revelation and natural law. Thus natural law appeared on the universal scene of interconfessional relations among monotheistic religions in both Palaeologus’s and Francken’s cases. The Jesuit theologian Francisco Suárez changed the very concept of the law of nature by developing an ontology of law in his commentary on Aristotle’s metaphysics (1597) and in the later De Legibus ac Deo legislatore (1612), as Dominique Bauer argues in c­ hapter 7. Building on the Aristotelian notion of reason as the defining characteristic of man, she shows that Suárez not

33

Richard J. Ross, ‘Distinguishing Eternal from Transient Law: Natural Law and the Judicial Laws of Moses’, Past & Present, No. 217 (November 2012), pp. 79–​115.

18 Blom so much emphasized that reason allows man to know the law of nature, but rather that reason implies the human condition to live by laws and the necessity of a lawgiver to ensure the obligation to obey the laws. At the same time, Suárez argues that the laws of nature embody a true moral standard, to the extent that human law is purely contingent. In this ontology, God is both the Creator of human nature and its Lawgiver. In this way, the law of nature is re-​ integrated within Catholic theology and the revolutionary use of natural law concepts is effectively undermined, without however denying free choice and self-​government. Thus, Suárez as the main exponent of Counterreformation theology provided an answer to Monarchomach theory aiming at an opposition of forces of resistance and tyranny. Suárez’s metaphysics of law was there to stay, widely received in Protestant theology and philosophy of law. Willem van Asselt, e.g. argues that not only was Suárez the master of seventeenth-​century metaphysics, but also that Scholasticism as a method pervaded protestant theology.34 Moreover, as a metaphysician Suárez was one of the inspirators of modern philosophy as a professional discipline that is said to have started with René Descartes.35 This turn to philosophy in Suárez, notwithstanding his self-​image as a theologian, shows in the self-​referential aspect of his theory, a phenomenon that Bauer calls mimesis, as in the free choice of man to submit to the law as the will of a superior, and the foundation of the authority of the state on the free will of its citizens. Hugo Grotius had a high opinion of Francisco Suárez. To his friend Jean de Cordes (1570–​1642) he wrote: ‘But why this contempt for Suárez, the man who if correctly judged in [that kind of] philosophy that is now connected to Scholasticism has such subtlety that barely anyone equals him’.36

34

35 36

W. J. van Asselt, Scholasticism Revisited: Methodological Reflections on the Study of Seventeenth-​Century Reformed Thought’, in Seeing Things Their Way, ed. by Alister Chapman, John Coffey, and Brad S. Gregory (Notre Dame: University of Notre Dame Press, 2009), pp. 154–​174; Reformation and scholasticism: an ecumenical enterprise, ed. by W. J. van Asselt and E Dekker. Texts and studies in Reformation and post-​Reformation thought (Grand Rapids, Mich.: Baker Academic, 2001). See, for example, Bernard Williams, Descartes: The Project of Pure Enquiry (Sussex: Harvester Press, 1978). ‘Nam quorsum tantus Suarezii contemtus, hominis, si quid recte judico, in philosophia, cui hoc tempore connexa est scholastica, tantae subtilitatis, ut vix quenquam habeat parem?’ [Briefwisseling van Hugo Grotius, 17 vols. Ed. by P.C. Molhuysen, B.L. Meulenbroek, Paula P. Witkam, Henk J.M. Nellen en Cornelia M. Ridderikhoff (The Hague: Assen, 1928–​2001) v, no. 1884, p. 194. (15 oktober 1633. Aan J. de Cordes).].

Introduction

19

Eyffinger takes up his analysis of the Grotian program, discussing the status of natural law and its relationship to God the author of nature, but also sacred history and its role in the explanation of human society, as well as more technical issues as the classification of laws and its problems. As a theorist of natural law, Grotius was addressing issues that differed from those of Suárez, at least in the books that address most directly the connection between law and religion: Ordinum pietas (1613) and De imperio summarum potestatum circa sacra. (written 1616; published 1647). These texts provide a good occasion to detail the supposition that Grotius was a main protagonist of Early Modern secularization. This might seem to apply especially to his contribution to the theory of law itself. Yet, as Arthur Eyffinger argues in c­ hapter 8, the secularization is only in some respects and half-​hearted anyway. In ­chapter 9, to that end, Stefanie Ertz analyzes in detail the crucial argumentative changes during these crucial years of Grotius’s intellectual development in the period between De iure praedae (1605) and De iure belli ac pacis (1625), defying against presentism and the teleological presupposition that the past was meant to bring about the present. She shows how Grotius managed to rule out the paradigmatic role of the Hebrew theocracy as the main reference in the discourse of the ius circa sacra. He associated the religion of the Patriarchs with the natural ‘imperium’ of the paterfamilias, which made his interpretation of patriarchal priesthood become a central point of coincidence between conceptual, biblical-​historical and extra-​biblical historical evidence. Religious authority, accordingly, had always been included in this father’s (natural) right to decide whom to transfer an office that was by its very nature not a right, but a duty –​and which, as such, could neither be immediately part of ruling power, nor be derived from the concept of imperium in the way of other (worldly) political functions. In sum, Grotius’s account of patriarchal priesthood in De imperio was to make the ius circa sacra of the civil sovereign an affair, no longer predominantly of interpreting God’s positive laws, but rather of natural law and the ius gentium. By doing so, Grotius at once offered an interpretation of sacred history that would lastly –​namely, in De iure belli ac pacis –​result in making the Hebrew theocracy appear as a rather subordinate and even extraordinary episode in an overall narrative of the historical interaction between natural and universal divine positive law. Moreover, De imperio was also pioneering in the elaboration of that very distinction between ius naturale (divinum) and ius divinum positivum for which De iure belli ac pacis was to become famous, and which –​being a conceptual and not just historical distinction, that is, which did not just apply to different modes of promulgation, but also, and even foremost, to distinct modes of obligation –​would prove extremely important in the transition from early modern

20 Blom to enlightened natural law as well as for the transition from Humanist bible interpretation to rational bible criticism. Looking at Grotius’s natural law with the benefit of hindsight, Jiří Chotaš isolates toleration as the crucial concept in the later seventeenth-​century debate on whether Grotius was a secularizer or not, and argues that Grotius built his natural law on both secular and theological foundations. Chotaš sees in Grotius’s comprehensive approach to a system of international law and the idea of religious tolerance the main reasons why his writings should be studied in our times. It is important to also present this modern perspective since notwithstanding the canonical lineage over Thomas Hobbes to John Locke (1632–​1704) and the secularism of modern liberalism, the more cautious integration of religious and philosophical perspectives in Grotius contains a separate inspiration for the challenges of today. The following three chapters are devoted to Samuel Pufendorf, the first two concentrating on his view on church-​state relations and toleration and the third on the presumed voluntarism of Pufendorf. Thomas Behme wants to find out whether Pufendorf’s recourse to Luther in proving his Lutheran orthodoxy was for tactical reasons only or the expression of an essential affinity of his natural law and Lutheranism. This takes Behme to an incisive analysis of two of Pufendorf’s writings, De habitu religionis Christianae and Jus feciale divinum. Thus, Pufendorf interprets Luther –​as Behme formulates it –​with the help of Philipp Melanchthon who had reintroduced Aristotelian philosophy into the Lutheran theology, and his advocacy of moral philosophy as an autonomous discipline, without direct relevance to man’s salvation. Thus Melanchthon, somehow anticipating Pufendorf’s secularization program, interprets Luther’s distinction of the two kingdoms in a way that allows for the study of worldly and secular life, independent from religion. In Pufendorf’s hands this becomes a strong justification of secular government, including the authority over external church affairs, thereby upsetting the Lutheran separation of church and state. The territorial church government (landesherrliches Kirchenregiment) that emerged in the Lutheran territories resulted from the role of the Protestant princes as political protectors of the Lutheran belief and had no dogmatic basis in Luther’s theology. Pufendorf’s apology of that contemporary practice which started from an original advocacy of the mutual independence of natural law and moral theology methodologically recalls the role of the state of nature in deriving sovereign power as it existed in his times. Thus, his endeavors on both fields end in an apology of the status quo to prove its reasonableness or rather its conformity to true religion.

Introduction

21

In the next chapter, Heikki Haara argues that Pufendorf does not base his theory of toleration on the individual’s rational capacity to choose one’s religious beliefs, nor does he straightforwardly support the epistemological claim that it is impossible to coerce belief. Pufendorf defends the freedom of understanding and will as a precondition of moral accountability. However, he is simultaneously unconvinced about people’s rational capacity to recognize the precepts of natural religion through reason. Therefore, the sovereign ought to employ coercion and the threat of punishment to ensure that people uphold, at least externally, the proper natural theological beliefs that are essential to sociability and political stability. In turn, Pufendorf reserves freedom from coercion only for the doctrines of revealed religion that fall outside the scope of natural reason. Thus, his argument for freedom from coercion is not based on a person’s rational autonomy to choose one’s religious beliefs but on reason’s limits with regard to revealed religion. Lastly, Denis Ramelet critically follows the arguments that have been presented for and against the coherence of Pufendorf’s voluntarism as it operates in the famous separation of the entia physica from the entia moralia. If the moral being of man is the result of an imposition, –​as Pufendorf claims –​then the content of morality depends on the will of the lawgiver, whether that is God or man. This coherence has been under discussion as Pufendorf argues that conditional necessity imposes on God a requirement of coherence that limits his freedom, which contradicts the initial Pufendorfian intention to exalt divine omnipotence. Ramelet’s detailed analysis shows that on the theological level, there is no intermediate coherent position defendable between classical naturalism (from Aristotle to Grotius, including Cicero and Thomas Aquinas) and Ockham’s or Descartes’s absolute voluntarism. If one wants to exalt divine and/​or human freedom, nature must be regarded as devoid of any intrinsic normativity. Conversely, if nature is regarded as devoid of any intrinsic normativity, one necessarily has to accept the reign of divine and/​or human arbitrariness. Yet, it seems that Pufendorf’s claim that morality is an answer to the requirements of a peaceful social order allowed him to move beyond the voluntarism-​naturalism opposition, a move that might be explained by the impact of the new science. The opposition between voluntarism and naturalism in Pufendorf disappears behind the inscrutability of God’s imposition of man’s nature. That is, man cannot unequivocally retrieve the essence of man’s nature and therefore there is no rational argument about God’s intellect to be construed. Being thrown into the world, man diligently has to construct systems of obligation proper to his condition. In the words of Pufendorf himself:

22 Blom For such an animal to live and enjoy the good things that in this world attend his condition, it is necessary that he be sociable (sociabile), that is, be willing to join himself with others like him, and conduct himself towards them in such a way that, far from having any cause to do him harm, they may feel that there is reason to preserve and increase his good fortune.37 The final chapter, by Adriana Luna-​Fabritius, analyses how in late seventeenth-​ century Naples the political writings of Grotius acquired urgency and actuality, bringing an interest in Grotius natural law writings in its wake. Although many of the Neapolitan writers involved were ordained priests, they interpreted Grotius’s natural law in a manner that prepared the way for the replacement of Providence and sacred history by the history of human societies. Not uncontested of course, and partly driven by a sub-​plot of nascent new scientific interest, the Neapolitan illuministi prepared the way for the innovative works of, for example, G.B. Vico and F. Galiani. The development of ideas in strong interaction with the political events of the seventeenth century is not just another illustration of the main thesis of this volume, but also reflects the ‘plus que ça change, plus que ça reste la même chose’ of natural law in its interaction with religion and politics.

Select Bibliography



Primary Literature

Aquinas, Thomas, Summa theologiae, Paris, 1285. Calvin, John, Commentarij in Epistolam Pauli ad Romanos. Strasburg: Rihel, 1540. Reprinted in Idem, In omnes Novi Testamenti Epistolas commentarii. Halle: Gebauer, 1834. vol i, pp. 1–​204. Calvin, John, Institutiones religionis christianae [Basel, 1536], tr. The Institutes of the Christian Religion, tr. by Henry Beveridge, Edinburgh: Calvin Translation Society, 1846. Chrysostom, Homilies on the statues. Oxford: Parker, 1842. Grotius, Hugo, Meletius, sive de iis quae inter Christianos conveniunt epistola. Ed. by G. H. M. Posthumus Meyjes. Leiden: Brill, 1988.

37

Samuel Pufendorf, De jure naturae et gentium, ii.3.15, as quoted by Denis Ramelet, infra, p. 284n67.

Introduction

23

Grotius, Hugo, Annotationes in Ep. ad Rom, in Opera omnia theologica. Amsterdam: Blaev, 1679, vol. ii.2, pp. 676–​677. Grotius, Hugo, De jure belli ac pacis, Paris: Buon, 1625. Briefwisseling van Hugo Grotius 1597–​1645. 17 vols. Ed. by P.C. Molhuysen, B.L. Meulenbroek, Paula P. Witkam, Henk J.M. Nellen en Cornelia M. Ridderikhoff. The Hague: Assen, 1928–​2001. Irenaeus, Adversus haereses, tr. Against Heresies, in Ante-​Nicene Fathers: The Writings of the Fathers down to A.D. 325. Volume 1: The Apostolic Fathers, Justin Martyr, Irenaeus, ed. by Alexander Roberts and James Donaldson. Revised and Chronologically arranged with brief prefaces and occasional notes by A. Cleveland Coxe. New York: Christian Literature Publishing Co., 1885. Melanchthon, Philipp, De dignitate legum oratio [1539], in Corpus Reformatorum, vol xi, pp. 357–​364. Origen, Contra Celsum, 5.37, tr. by Frederick Crombie, in Ante-​Nicene Fathers, Vol. 4. Edited by Alexander Roberts, James Donaldson, and A. Cleveland Coxe. Buffalo, NY: Christian Literature Publishing Co., 1885. Philo Judaeus, Quod Omnis Probus Liber Sit (Every Good Man Is Free), in The Complete Works of Philo: Complete and Unabridged. Trans. C. D. Yonge (Peabody, MA: Hendrickson, 1993), pp. 682–​97.



Secondary Literature

Areshidze, Giorgi, ‘Taking Religion Seriously? Habermas on Religious Translation and Cooperative Learning in Post-​secular Society’, American Political Science Review 111/​ 4 (2017) pp. 724–​737. Asselt, W. J. van, ‘Scholasticism Revisited: Methodological Reflections on the Study of Seventeenth-​Century Reformed Thought’, in Seeing Things Their Way, ed. by Alister Chapman, John Coffey, and Brad S. Gregory. Notre Dame: University of Notre Dame Press, 2009, pp. 154–​174. Babie, Paul, ‘Natural Law in the Orthodox Tradition’, in Christianity and Natural Law: An Introduction, ed. by Norman Doe. Cambridge, 2017, pp 36–​57. Bozinis, Constantine A., ‘The Natural Law in John Chrysostom’, in Revisioning John Chrysostom. New Approaches, New Perspectives, ed. by Chris de Wet and Wendy Mayer. Leiden: Brill, 2019, pp. 493–​524. Carroll, Anthony J., ‘The Importance of Protestantism in Max Weber’s Theory of Secularisation’, European Journal of Sociology /​Archives Européennes de Sociologie /​ Europäisches Archiv für Soziologie, 50/​1 (2009), pp. 61–​95. Das Konfessionalisierungsparadigma. Leistungen, Probleme, Grenzen. Bayreuther Historische Kolloquien, 18, ed. by Thomas Brockmann and Dieter J. Weiss. Münster: Aschendorff, 2013.

24 Blom Emon, Anver M., ‘Natural Law and Natural Rights in Islamic Law’, Journal of Law and Religion, 20/​2 (2004–​2005), pp. 351–​395. Finnis, John, Aquinas: Moral, Political, and Legal Theory. Oxford University Press, 1998. Forgetting Faith? Negotiating Confessional Conflict in Early Modern Europe, ed. by Isabel Karremann, Cornel Zwierlein and Inga Mai Groote. Berlin: De Gruyter, 2012. Gauchet, Marcel, La religion dans la démocratie. Parcours de la laïcité. Paris, Gallimard-​ Le débat, 1998. Haakonssen, Knud, ‘Protestant Natural Law Theory: A General Interpretation’, in New Essays on the History of Autonomy: A Collection Honoring J. B. Schneewind, ed. by Natalie Brender and Larry Krasnoff (Cambridge: Cambridge University Press, 2002), pp. 92–​109. Habermas, Jürgen, Between Naturalism and Religion, tr. by C. Cronin. Cambridge: Polity, 2008. Hardy, Nicholas, Criticism and Confession. The Bible in the Seventeenth Century Republic of Letters. Oxford: Oxford University Press, 2017. Ho, Norman, ‘Natural Law in Confucianism’, in Research Handbook on Natural Law Theory, ed. by Jonathan Crowe and Constance Youngwon Lee. Cheltenham: Edward Elgar, 2019, pp. 164–​180. Hollerbach, Alexander, ‘Das christliche Naturrecht im Zusammenhang des allgemeinen Naturrechtsdenkens’, in Naturrecht in der Kritik. ed. by Franz Böckle and Ernst-​ Wolfgang Böckenförde. Mainz: Matthias-​Grünewald-​Verlag, 1973, pp. 9–​38. Hsia, R. Po-​chia, Social discipline in the Reformation. Central Europe 1550–​1750. London/​ New York: Routledge, 1989. Jensen, Mads Langballe, A Humanist in Reformation Politics. Philipp Melanchthon on Political Philosophy and Natural Law. Leiden: Brill, 2019. Kisch, Guido, ‘Melanchthon und die Juristen seiner Zeit’, in Mélanges Philippe Meylan. Lausanne: Faculté de Droit de l’Université de Lausanne, 1963, vol ii, pp. 135–​150. McKeever, P.E., ‘Theology and Natural Law’, Proceedings of the American Catholic Theological Society, 21 (1966), pp. 223–​237. Molendijk, Arie L., ‘Ernst Troeltsch’s Lasting Contribution to the Historiography of Christianity’, Mitteilungen der Ernst-​Troeltsch-​Gesellschaft, 18 (2005) pp. 16–​37. Novak, David, Athens and Jerusalem: God, Humans, and Nature. Toronto: University of Toronto Press, 2019. Novak, David, Natural Law in Judaism. Cambridge: Cambridge University Press, 1998. Pryor, C. Scott, ‘God’s Bridle: John Calvin’s Application of Natural Law’, Journal of Law and Religion, 22/​1 (2006/​2007), pp. 225–​254. Reformation and scholasticism: an ecumenical enterprise. Ed. by W. J. van Asselt and E Dekker. Texts and studies in Reformation and post-​Reformation thought. Grand Rapids, MI.: Baker Academic, 2001.

Introduction

25

Reinhard, Wolfgang, ‚Sozialdispziplinierung –​Konfessionalisierung –​Modernisierung. Ein historiographischer Diskurs’, in Die Frühe Neuzeit in der Geschichtswissenschaft. Forschungstendenzen und Forschungserträge, ed. by N. Boskovska Leimgruber. Paderborn: Ferdinand Schöningh,1997, pp. 39–​55. Ross, Richard J., ‘Distinguishing Eternal from Transient Law: Natural Law and the Judicial Laws of Moses’, Past & Present, 217 (November 2012), pp. 79–​115. Schilling, Heinz, ‘Confessional Europe’, in Handbook of European History 1400–​1600, Late Middle Ages, Renaissance and Reformation, vol ii: Visions, Programs and Outcomes, ed. by Thomas A. Brady, Heiko A. Oberman and James D. Tracy. Leiden: Brill, 1995, pp. 641–​681. Schmitt, Carl, The Concept of the Political. Chicago: University of Chicago Press, 1996. Schmoeckel, Mathias, Das Recht der Reformation. Die epistemologische Revolution der Wissenschaft und die Spaltung der Rechtsordnung in der Frühen Neuzeit. Tübingen: Mohr, 2014. Strohm, Christoph, ‘Die productive Kraft konfessioneller Konkurrenz’, in Reformation und Recht. Ein Beitrag zur Kontroverse um die Kulturwirkungen der Reformation, ed. by Christoph Strohm. Tübingen: Mohr-​Siebeck, 2007, pp. 131–​171. Stolleis, Michael, ‘Reformation und Verrechtlichung am Beispiel der Reichspublizistik’, in Reformation und Recht. Ein Beitrag zur Kontroverse um die Kulturwirkungen der Reformation, ed. by Christoph Strohm. Tübingen: Mohr-​Siebeck, 2007. Strauss, Leo, Natural Right and History. Chicago: University of Chicago, 1953. ‘Natural Law and Comparative Law’, spec. issue of The Journal of Comparative Law, 8/​2 (2013–​2014), ed. by R. Wilcox and A. Carty. Torpey, John, ‘A (Post-​) Secular Age? Religion and the Two Exceptionalisms’, Social Research, 77/​1 (2010), pp. 269–​296. Troeltsch, Ernest, The Social Teaching of the Christian Churches. Trans. Olive Wyon. New York: Harper. 1960. Troeltsch, Ernst, ‘Die Bedeutung des Protestantismus für die Entstehung der modernen Welt’, in Idem, Schriften zur Bedeutung des Protestantismus für die Entstehung der modernen Welt [1906–​1913], Kritische Gesamtausgabe, 8, ed. by Trutz Rendtorff and Stefan Pautler. Berlin /​New York: De Gruyter, 2001, pp. 199–​316. VanDrunen, David, ‘The Use of Natural Law in Early Calvinist Resistance Theory’, Journal of Law and Religion, 21/​1 (2005/​2006), pp. 143–​167. Williams, Bernard, Descartes: The Project of Pure Enquiry. Sussex: Harvester Press, 1978. Yelle, Robert A., Sovereignty and the Sacred. Secularism and the Political Economy of Religion. Chicago: University of Chicago, 2018.

pa rt 1 Humanist Inroads into Natural Law

∵

­c hapter 2

Natural Law and National Polity

The Leiden Discourse on State and Church (1575–​1625) Arthur Eyffinger The birth-​pangs of the Dutch Republic and its so-​called Remonstrant Troubles generated innovative thought of wider European impact on matters of State and Church. This introduction sets the stage for the purview in this volume. Section i sketches the socio-​political context of the Dutch Revolt and the intellectual climate at Leiden; Section ii focuses on Predestination, State and Church, and the role of the Hebrew Constitution in the works of Franciscus Junius, Hugo Grotius and Petrus Cunaeus. It is a sobering tale we are to address. The story opened on the highest of tenors with the confident aim to purge religion, implement social justice, and enhance the overall quality of thought and life in the Netherlands. Haec Libertatis Ergo, Haec Religionis Ergo read the ambitious motto of the Dutch Revolt. Its twofold aspirations were backed by the keenest political minds of the period in joint effort with the world of divinity. Giants they were in their fields. Yet, like the Titans of old, they played with fire and diced with death. Or, to use Franciscus Junius’s metaphor, they jumped from the one chariot onto the other as do circus artists, and as daredevils acted on the high seas as though comfortably anchored in harbor.1 The discourse opened at the intersection of Aristotelian dialectics and (Neo-​) Thomist scholasticism, the stern doctrine of Calvin and the critical humanism of Melanchthon. From lack of empathy and understanding, and of social accountability one may add, the dialogue became bogged down in a morass of hair-​splitting idiosyncrasies that boomeranged back onto society and state polities. In a traumatic process, first the unity of the Seventeen Provinces was lost; then, in the truncated North, strife turned inwards to issue in civil war. What opened with dissent on abstruse technicalities of Erastianism, Socinianism and Pelagianism ended with widespread purges, arrests and the scaffold.

1 Franciscus Junius, De politiae Mosis observatione (Leiden, 1593; further ed.: Leiden, 1602; [Heidelberg,] 1603), [B7v]; English translation in Franciscus Junius, The Mosaic Polity, transl. by Todd M. Rester, ed. By Andrew M. McGinnis (Grand Rapids/​MI, 2015), Preface, p. 25.

30 Eyffinger Or did it? Truth be told, the riddle of State and Church was never solved throughout the full two centuries of the Dutch Republic. It kept flaring up, under different titles, to trigger more fratricide, lynching, incarceration and exile. All the while, it left the greater part of the Dutch nation, from Catholics to Lutherans to Anabaptists to Jews, beyond the pale. The Sephardic financers of the Indian Companies and William’s Glorious Revolution never obtained civil rights. Until, that is, the Republic’s mouldering fabric was done away with by the Enlightenment thought hailed by another great revolution. At home, in 1795, the so-​called Patriots who joined the French banners were tellingly branded as ‘foul Remonstrants’. And yet, in a way, the above pitfalls, if considerable, might well be presented as mere collateral damage. As majestic counterpoise to the above tale of embarrassment rises the Dutch seaborne empire that was the wonder of the world; the Amsterdam Exchange; voc and wic; the wealth of intellectual exchange and artistic outpouring that made Amsterdam the melting-​pot of cultures to rival Venice and recall Philo Josephus’s Alexandria; the entourage that spurred the critical minds of Spinoza, Descartes and Pieter de la Court, and the humanist philology that encompassed the legacy of the Greco-​Roman and Judaeo-​Christian traditions; last not least the printing houses that mapped the world. The blatant contrast of spheres is epitomized in that protean principle we call Toleration. The above is meant to underpin the sheer scope and lasting impact of the debate. It encompasses the full canvas of religion and morals, politics and the law, and the ambition to harness intellectual precepts and stern doctrine to the pragmatics of life and the contingency of the human condition. 1

The Perimeters

The Dutch Revolt: Ideology 1.1 The Dutch Revolt opened as another chapter in the intellectual crisis that, for half a century by then, had been unravelling former concepts, structures and ideals in Europe. It involved the trench war of the nobility to check history and uphold invested rights against the royal prerogative and unitarianism. It answered the clarion-​call of the merchant classes to have its interests honoured and commerce and trade spared from the onslaught and repression. Finally, it bespoke the intellectual clash of scripture and scepticism, of Calvin and Beza with Erasmus and Montaigne. Epitomizing the three spheres of Politics, Commerce and Intellect stood the three citadels of the early Dutch Revolt: Brussels, Antwerp and Louvain.

Natural Law and National Polity

31

Within twenty years its figurehead, the Prince of Orange, cornered by Parma’s tercios and Bellarmini’s Jesuits in their wake forcibly withdrew to Holland, the last bastion able and willing to make a stand. The move came at a substantial cost. As Hugo Grotius claimed with hindsight, it was tantamount to treason in turning Libertas into the handmaiden of Religio. It left the Politiquen at the mercy of the Kerckelycken and sacrificed Toleration to exclusivity. It substituted the ideal of the Una Sancta with that of the communio sanctorum and split the herd by shifting sheep from goat, selecti from reprobi. To prove the point, positions soon hardened. King Philip’s repressive decrees made merchant marranos and the Portuguese House in Antwerp seek refuge in Middelburg and Amsterdam and transfer wealth. Religious and intellectual dissenters, Huguenots prominent among them, fled to Leiden and The Hague, to foster debate –​and dissent. By 1608, military deadlock and financial dire straits at both ends imposed negotiations between Brussels and The Hague. The three-​pronged agenda covered the full palette of politics, economy and religion –​epitomised in the catchwords Sovereignty, Indian Trade and Toleration. Obstinacy on either side, Catholic and Calvinist, frustrated compromise on the last issue. The Dutch Reformed Church, consolidated at Embden in 1571 –​that is, well before a political Union was agreed upon in Utrecht in 1579 –​insisted on exclusivity. To the surprise of foreign critics, the Dutch, rather than opting for the legal warrant of sovereignty, chose the pragmatic way out, playing the trump of commerce and trade. The separation of minds and clash of ideology between North and South was irreparable –​as Britain would find out to its discomfort full two centuries later (1815–​1839). The Truce of 1609 never solved the riddle. The Seven Provinces, out of the original Seventeen, that were left at odds never shared much common ground, whether regarding religious denomination, political tradition and outlook, or economic priorities. They wisely resolved upon the flimsiest of pacts of defence, harnessed in a loose confederation. Even so, the compromise proved hazardous: within the bosom of the Reformed Church the quibbling never stopped. Fundamental debate, first over religious technicalities, then, as these erupted into social turmoil, concerning the competence of secular authorities to interfere in the matter issued in vicious infighting, to wreck the aristocratic republic that Oldenbarnevelt, the foremost man of state and raison d’état, and Hugo Grotius, his ideological aide-​de-​camp had in mind. Leiden University: Calvinists and Humanists 1.2 The Remonstrant Troubles first flared up in Leiden, and not by accident. Leiden University was founded as the ideological counterpart to Louvain in

32 Eyffinger the South. It was the bastion of Calvinist orthodoxy, but likewise, and in line with Erasmus’s Trilingue in Louvain, the citadel of secular learning in the sceptical tradition of Humanism. The bipartition of outlook and methods reflected the two ends Leiden served: to drill the clergy and train the political cadre and legal elite. In no domain this bifurcation manifested itself more pregnantly than in the approach to the core and kernel of Calvinist doctrine, biblical hermeneutics. The double outlook accounts for the unique stamp and durable renown of Leiden Academia of the period. It produced Arminius and Gomarus in the Genevese tradition of Calvin and Beza, alongside Hugo Grotius’s and Daniel Heinsius’s learned Annotationes2 on the testaments in that formidable tradition that harked back to Lorenzo Valla and ran from Erasmus and Melanchthon to Scaliger, Casaubonus and Selden. Both types of research were pioneering and trendsetting, but they reflected different worlds. The dichotomy proved a predicament: it entailed the mésalliance of stern Calvinist orthodoxy and critical, discerning humanist learning. Calvinist dons focused on scripture exclusively, mostly in an ahistoric and uncritical approach that never questioned the authenticity or self-​sufficiency of divinely inspired texts.3 Humanist scholars, by contrast, in a critical approach that was only stiffened by the growing scepticism religious strife incurred acutely delved for the authenticity, historicity and emendation of scripture. Integrating Oriental and Hebrew studies in their quest, they projected the impressive rationale and formidable tools of classical philology and critical historical research4 on a corpus of texts ranging from Aramaic and Kabbalah to Arabic and Koran, and including the legacies of Patres and Scholastics.5 To them, the Decalogue

2 Humanists often labelled their works Annotationes to neatly distinguish them from purely theological commentaries. 3 As Leiden directives in the proposal of Guillaume Fugueray from 1575 put it: ‘no authors who raise endless useless questions will be treated in lectures, and no sophists: only the two heavenly and divine suns of the Old and New Testament shall be interpreted from the Hebrew and Greek texts’; P C Molhuysen, Bronnen tot de geschiedenis der Leidsche Universiteit I, (The Hague, 1913), p 41*. 4 Grotius, typically, interpreted the Song of Songs with reference to the love elegy of Theocritus, Catullus or Tibullus. Cf. H.J.M. Nellen, ‘Growing Tension between Church Doctrines and Critical Exegesis of the Old Testament’, in Hebrew Bible /​Old Testament, The History of Its Interpretation, ed. by Magne Saebo (Göttingen 2008), pp. 802–​826, at p. 813. 5 In his Prolegomena to De iure belli ac pacis (1625) Grotius insists on the relevance of Hebrew sources, including later Jewish tradition, and stresses the legitimacy of the Old Testament in its own right, that is, regardless of its metaphorical interpretation (as mirroir dévolé) in

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held no different status from Egyptian papyri, Syrian scrolls or medieval vellums.6 To typify the kind of research, one such quest was aimed at establishing world chronology and pinpoint biblical tradition within its wider context.7 Justus Scaliger’s major aspiration in his De emendatione temporum (1583) and Thesaurus temporum (1606) that prompted Anthony Grafton’s magisterial research was to reconstruct Eusebius’s Chronicles of world history. Hugo Grotius, Scaliger’s gifted pupil, claimed that in his (sadly lost) treatise Philarchaeus (c. 1600) he had corroborated Mosaic law with the help of Egyptian, Phoenician, Orphic and Pythagorean testimonies.8 Grotius’s astronomical research and mathematical studies with Simon Stevin sought to recapture the ‘lost wisdom’ of the ‘Age of the Sages’,9 and enhance methodology with the help of new parameters of modern science. This research was never purely academic or art for art’s sake: it carried eminent social overtones and political aspirations, reflecting the keen ambition, through ‘objective’ philology, to identify the ‘unbiased’ Truth, unwind the hair-​ splitting subtleties of clashing denominations, and put a halt to infighting. Predictably, these rebels were blasphemed by dogmatic hardliners whether

6

7 8

9

the light of the Christ. The ultimate rationale of Grotius’s biblical research is epitomised in his seminal Apology of Christianity, De veritate religionis Chistianae (1627). The treatise soon drove Du Plessis Mornay’s treatise of 1583 that bore the same title from the marketplace. On the tradition see A. Dulles, A History of Apologetics, (London 1971). Scaliger and Heinsius entered the arena as philologists pur sang. Scaliger identified the authenticity and date of the Aristeas-​letter; Heinsius, in his Aristarchus Sacer, verified the credentials of the Septuagint in Nonnos’ version of the Gospel of St. John; cf. Jürgen-​Christian Lebram, ‘Ein Streit um die hebräische Bibel und die Septuaginta’, in Leiden University in the 17th Century: an Exchange of Learning, ed. by Th. H. Lunsingh Scheurleer and G. H. M. Posthumus Meyjes (Leiden: Universitaire Pers; Brill, 1975), pp. 21–​63, at pp. 36–​38. On the overall Leiden climate see Mark Somos, Secularisation and the Leiden Circle (Leiden: Brill, 2011). A. Grafton, J. Scaliger, A Study in the History of Classical Scholarship, 2 vols (Oxford 1983, 1993). The research would reach all the way to G.J. Vossius’s Chronologiae sacrae isagogae (1659) and his son Isaac’s Dissertatio de vera aetate mundi (1659). Witness Grotius’s postscript to his biblical drama Adamus exul (1601). Poetry Grotius, 1.1.a, ed. Meulenbroek, pp. 294–​295. By 1606, once Scaliger’s Thesaurus was published, Grotius suppressed his own work, which dealt with the same subject matter; it was subsequently lost. The bulky references to mythical sources that abound in Grotius’s De Veritate would suggest the later adaptation of the material. Grotius’s keen interest is also attested by pursuits such as Ghetuychnissen eens seer ouden Wysentijts (‘Testimonials from of the Age of the Sages’); Poetry 1.2.3, ed. A. Eyffinger, Assen 1988. The relationship between these (published and suppressed) works on astrology and chronology deserves in-​depth research. Within the context of his research on biblical chronology, Scaliger undertook studies on Manilius and delved into the roots of classical astronomy. His pupils were likewise steered into these waters, witness Grotius’s critical editions of the tracts of Martianus Capella (1599) and Aratos (1600). Heinsius, Vossius, Cunaeus (and Selden) went much the same way.

34 Eyffinger Catholic, Lutheran or Calvinist.10 Grotius counted as ‘Judaizans’ in some circles,11 ‘Papizans’ in other gremia. Biblical Hermeneutics and Hebrew Studies 1.3 Symptomatic of the twofold ambition, yet sadly adding to the separation of minds, was the bifurcation of the study of Hebrew,12 split up between the departments of Divinity and Liberal Arts.13 With Divinity dons the role of Hebrew was often fairly limited: rabbinic sources and Talmud were ruled out as categorically as Patres and Church Councils. Often enough, Hebrew was disregarded altogether and, to oblige students, scripture read in the Septuagint version.14 The seminal professor of Hebrew, Johannes Drusius, faced a blatant lack of interest.15 Scaliger complained with Casaubonus that Leiden theologians 10 11 12

13

14

15

Nellen, ‘Growing Tension’, passim. Id E. Rabbie ‘Hugo Grotius and Judaism’, in Hugo Grotius Theologian, Essays Posthumus Meyjes [Stud. Hist. Christ. Thought, Vol. 53], ed. by H.J.M. Nellen and E. Rabbie (Leiden: Brill, 1994), pp. 99–​120. By 1575, Hebrew studies had come a long way from their isolated status in the days of Manetti and Pico in the 1450s. They first flourished in Germany at the hands of Sebastian Münster, Fagius and Reuchlin, who without doctrinal reservations freely availed themselves of rabbinical literature. From 1550, the French school gradually took over, as exemplified by Vatable and Mercier. Jean Bodin’s in-​depth research into Mosaic law bears witness to this stimulating entourage, which delved into Oriental studies from Aramic, Talmud and Kaballah to Turkish, Arabic and Koran. The founders of Hebrew studies at Leiden, Drusius and Raphelengius, both had their training in France. Franciscus Raphelengius (1539–​1597), professor of Hebrew from 1586–​ 1597, was one of the editors of the 1571 Antwerp polyglot. On his Arabic lectures to Grotius see Briefwisseling van Hugo Grotius, 17 vols, ed. by P.C. Molhuysen, B.L. Meulenbroek, Paula P. Witkam, Henk J.M. Nellen, and Cornelia M. Ridderikhoff (Den Haag: Martinus Nijhoff, 1928–​2001), i Nos. 64 (hereafter bw), and cf. J.C. Lebram, ‘Hebräische Studien Zwischen Ideal Und Wirklichkeit an Der Universität Leiden in Den Jahren 1575–​1619’, Nederlands Archief voor Kerkgeschiedenis, ns 56 (1975/​6), pp. 317–​357. On the Leyden tradition of Arabic studies see G.H.A. Juynboll, Zeventiende-​eeuwse beoefenaars van het Arabisch in Nederland (Utrecht 1931). In the opening days of Leiden University, fairly few Jewish works were available for students, least of all rabbinical literature. Scaliger ordered Hebrew works from Emden and Venice and relied on Orientalists like Johannes Boreel and Janus Dousa Jr., who extensively travelled the Middle East in search of treasures for Leiden University Library. Both Grotius and Cunaeus profited from these sources. See Meletius, sive de iis quae inter Christianos conveniunt epistola, ed. by G. H. M. Posthumus Meyjes (Leyden 1988). The tract was named after Meletius Pegas, Patriarch of Alexandria (1590–​1601), whom Boreel met in the 1590s. Johannes Drusius from Flanders (1550–​1615) was professor of Chaldaean and Syrian languages in Leiden (1577–​1585), then until his death in Franeker. A linguist rather than theologian, his Remonstrant leanings prompted problems with his Franeker colleague Sibrandus Lubbertus, the great adversary of Hugo Grotius from 1613 onwards.

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only had a rudimentary understanding of (Biblical) Hebrew;16 he never took Franciscus Junius’s Hebrew Grammar (1590) seriously. Grotius, for all his veneration of his erstwhile teacher and landlord in Leiden,17 held the Bible translation Junius and Tremellius (a converted Jew) had published to be far inferior to Pagninus’s text. He instead relied on the expertise of his friend Johannes Boreel,18 the Orientalist and politician from Middelburg, that other bulwark of Calvinism, in the Province of Zeeland. This small township, to which stern Gomarus retreated in 1610, was as reputable as a center of Jewish trade as Hebrew studies. It dispatched scores of students to Beza in Geneva and, in return, produced Hebraists and Orientalists of renown: Lodewijk De Dieu, Johannes and Adam Boreel, Johan de Brune, Schotanus19 and Antonius Walaeus.20 Boreel was the addressee of Grotius’s irenic tract Meletius (1611) and is given credit by Cunaeus for having introduced him to the works of Maimonides and Sigonius. Cunaeus, Boreel and two Orientalists from Leiden, Thomas Erpenius and Franciscus Raphelengius were closely involved with the genesis of Grotius’s Meletius (1611), Pietas Ordinum (1613) and De satisfactione (1617), and likewise with Cunaeus’s De republica Hebraeorum (1617). Biblical and Hebrew studies, in short, presented a motley outlook, and their character did not change much once the Dordt Synod (1619) had purged the ranks21 and implemented its Synopsis purioris theologiae. Five names stand out to attest to the variety of outlook in subsequent decades. Antonius Walaeus (1619–​1639), open-​minded and Grotius’s reliable correspondent for their very 16 17

18

19 20 21

Grotius, by his own saying, never made much headway during his student years. François Dujon (1545–​1602) was professor of theology at Leyden (1592–​1602). He published Le paisible Chrétien and an Eirenicon (both in 1593) and for Grotius counted as the ultimate irenist. The Bible edition he produced with Tremellius was probably used by Grotius in De Republica Emendanda; see my comments in Grotiana 5 (1984), p. 28. Johannes Boreel (1577–​1629) from Middelburg was its Pensionary, Secretary to the States of Zeeland and Provincial ‘Raadspensionaris’. A gifted scholar and a respected member of the Leyden world of learning, he opted for a political and diplomatic career. In the 1590s he travelled to Syria and Palestina and assembled manuscripts and rare books, which he presented to Erpenius. Apollonius Schotte (c.1574–​1639), also from Middelburg, studied humanities and law in Leyden (1591–​1600). In 1602 he became Pensionary of Middelburg, and in 1610 a member of the Supreme Court at The Hague. Antonius Walaeus (1573–​1639) was born at Ghent. A poor bursar he was trained at the Collegium Theologiae in Leyden by Junius and Gomarus, then turned to Beza in Geneva. He was professor of Divinity at Leyden from 1619–​1639. Vossius, Coddaeus, and Bertius fell victim to these purges. Petrus Bertius (1565–​1629) was professor of ethics and Regent of the States College (1607–​1619). He never concealed his outspoken Arminian feelings and was sacked in 1619.

36 Eyffinger different tenets,22 pointed out that recourse to fontes was important; still, philology should be a means, not an end in itself: to aspirant-​ministers, textual criticism was like quicksand. Devoid of linguistic talents or interests, Walaeus took exception to Heinsius’s dabbling with theology in his Exercitationes sacrae.23 Walaeus’s position was singularly at odds with that of the Huguenot minister at Leiden, Louis de Dieu,24 who insisted on textual and historical authenticity.25 De Dieu was linguist par excellence, and pupil of the irenic Orientalists Erpenius (1613–​1624)26 and Golius (1625–​1626).27 Their successor was Sixtus Amama, a stern doctrinary of bellicose character, who insisted on making Hebrew compulsory for ministers.28 The man who took over command of Hebrew from 1627, Constantin L’Empereur, Orientalist and pupil of Erpenius and Drusius, in his inaugural address extolled the dignitas of Hebrew, ‘that mother of all tongues and human wisdom’ by virtue of its antiquity, holiness, and beauty. He praised its utilitas, on account of its role in in the interpretation of Hebrew legislation: their poor

22 Cf. e.g. their debate from June 1615 on Faith and Reason and whether Nature or Scripture was at the basis of Faith; bw, i Nos. 411–​412. 23 P.T. van Rooden, Theology, biblical scholarship, and rabbinical studies in the seventeenth century: Constantijn L’Empereur (1591–​1648), professor of Hebrew and theology at Leiden (Leiden 1989), pp. 54ff. 24 Louis De Dieu (1590–​1642) from Vlissingen was regent of the Wallonian College at Leiden (1637–​1642) and biblical exegete in the critical philological tradition. His Animadversiones ad loca quaedam difficiliora Veteris Testamenti appeared in 1646. 25 In 1628 De Dieu published an expert comparative grammar of Hebrew, Aramic and Syriac. He contemplated editing the Qur’an and an Arabic translation of the Pentateuch. In his Annotationes ad loca quaedam difficiliora Veteris Testamenti (1646) he compared cruces in the Septuagint and Vulgate with elder Oriental translations to foreshadow Louis Cappel’s Critica Sacra 1634. See Lebram ‘Ein Streit’, pp. 30ff. and Nellen, ‘Growing Tension’, pp. 811–​813. 26 Van Rooden, Constantijn L’Empereur, pp. 57ff. Thomas Erpenius (1584–​1624), an irenist in the Erasmian tradition, was professor of Oriental languages (1613–​1624). He published a Hebrew grammar, along with Arabic renderings of the Pentateuch and New Testament. His ambition to translate the Qu’ran and prepare a Polyglot Bible was cut short by the Dordt Synod. 27 Jacobus Golius (1596–​1667) from The Hague, a celebrity in his days, studied mathematics at Leiden under Snellius, then turned to Erpenius, lived a while in Morocco (1622), succeeded to Erpenius (1625), travelled in Syria, then returned to succeed Snellius (1629). He founded the Leiden observatory. His Lexicon Arabico-​Latinum (1653) was authoritative. 28 Sixtinus Amama was one of the initiators of the Statenbijbel (1637; the Dutch counterpart to the King James version). He left a monument for the study of Greek and Hebrew, Anti-​ Barbarus Biblicus (1628). Wavering religious tenets, he argued, were the outcome of ‘poor Hebrew and lesser Greek’.

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Hebrew had led most Church Fathers astray.29 But then, whereas Grotius and Heinsius probed the Targumim, Mishna and Talmud to amass an impressive command of Rabbinical literature,30 as attested by Grotius’s De veritate (1627),31 L’Empereur insisted on Hebrew’s exclusive role as a vehicle of doctrine. Research in Leiden, in short, triggered harsh polemics both within and between the factions of orthodox theology and sceptical humanism. Heinsius’s and Grotius’s relentless clashes with Huguenot refugee and professor of Divinity André Rivet (1620–​1632) are notorious cases in point.32 To deepen the ideological and intellectual cleft, a distinct social element came into play. Whereas most humanists were scions of the Regent class, aspirant clergymen were often recruited from lower social strata or from among immigrants. Or, to put it the other way around, to help solve the perennial 29

Inasmuch as it was the most dignified language, dating from before Babel and the origin of sin. Constantin L’Empereur (1591–​1648) from Bremenheld Hebrew useful in settling dogmatic controversy, verifying Hebrew expressions in the Gospels, and purifying the Vulgate; Van Rooden, Constantijn L’Empereur, pp. 84ff. With L’Empereur a new polemical element is entwined in the argument: the use of Hebrew to counter Jewish thought. Contrary to Grotius (cf. Nellen, ‘Growing Tension’, pp. 810–​11) he considered the Jewish rabbinical tradition logically inferior. In 1633, L’Empereur was appointed Professor Controversiarum Judaicarum. He helped Heinsius and Grotius in their biblical annotations. 30 From the 1630s, thanks to the help of L’Empereur among others, Grotius’s knowledge of rabbinical literature grew considerably; P.S. Lachs, ‘H. Grotius’s use of Jewish sources in On the Law of War and Peace’, Renaissance Quarterly, 30 (1977), pp. 181–​200; W. Rosenberg, ‘Hugo Grotius as Hebraist’, Studia Rosenthaliana, 12 (1978), pp. 62–​90. 31 Book v of De Veritate (1627) refutes traditional Jewish arguments against Christianity. Duplessis-​Mornay’s L’Advertissement aux juifs (1607) may have inspired its mildly philo-​ semitic tone. See P. Heering, Hugo Grotius as Apologist for the Christian Religion. A Study of His Work De Veritate Religionis Christianae (1640) (Leyden-​Boston 2004), p. 146. Grotius readily acknowledges the debt of Christianity towards Mosaic law but makes short shrift of Talmudic tradition. In his Annotationes, Grotius discusses Jewish history and customs; and his undogmatic approach invoked incriminations of iudaizare by Calvinists; Rabbie, ‘Hugo Grotius and Judaism’, pp. 99–​101. 32 André Rivet (1572–​1651) was appointed in Leiden right after the purges. Rivet was a competent exegete, witness his Isagoge ad scripturam sacram Veteris et Novi Testamenti (1616), and in 1625 was prominent (along with Polyander, Walaeus and Thysius) in drawing up the Synopsis purioris theologiae. Sternly orthodox, Rivet was forever involved in polemics. Heinsius’s libelling of Beza in his Exercitationes Sacrae (1643) provoked his wrath, and so did Grotius’s Votum pro Pace (Apologeticus pro suo de verae et sincerae pacis ecclesiae proposito, contra Grotii Votum, 1643). Heinsius was engaged in polemics with his Leiden colleague Claudius Salmasius over the Greek text of the New Testament, also the reflection of their personal rivalry and incompatibilité d’humeurs. In 1631, Gerard Vossius and his son Isaac faced protracted debates with Hulsius, Schotanus, and Cocceius regarding the authority of the lxx; Lebram ‘Ein Streit’, pp. 41–​44 (Hulsius), pp. 44-​46 (Chr. Schotanus), pp. 46–​54 (Cocceius).

38 Eyffinger shortage of clergymen, the States College (f. 1592) and Wallonian College (f. 1606) readily welcomed bursars from these substrata. Grotius’s correspondence with Cunaeus and the latter’s superbly satirical Sardi venales (1612) offer unequivocal testimonies to the persistent role this elitist attitude played in kindling the Remonstrant Troubles. Parallel to this ran growing concern over the influx of Jews. Here the stolid reserve of the clergy clashed over the keen interests of commerce and the Regent class. It prompted Grotius’s Jodenreglement (Regulations on Jews) that stands out as a model of compromise, if not opportunism, to reflect that contemporary Jewry preoccupied the Dutch as much as their Hebrew ancestors.33 2

On State and Church: Junius, Grotius and Cunaeus

For the interpretation of the troubled panorama outlined in Section i, Hugo Grotius is the most rewarding figure. His word was a major asset throughout –​ ideologically as controversial as it was intellectually unassailable –​and he was to be the foremost victim of the Troubles. In turning to the doctrinal and socio-​political issues at stake we will, therefore, take his overall philosophy for guidance. To illustrate the depth of the discourse and the personal entanglements involved we will compare the tenets he championed to those advanced by Francicus Junius, Grotius’s inspiration in theologicis in his early years, and by his tried and trusted friend towards the bitter end, Petrus Cunaeus. From the cauldron of discord, we will distil three issues that stamped religious controversy and political crisis: Predestination and Grace; Toleration; and the Primacy of State and Church. 2.1 Franciscus Junius 2.1.1 Predestination In the conflict on issues of Predestination and the Grace of God that divided Dutch society, one may distinguish three blood groups: the ultras or orthodox Calvinists headed by Gomarus, who likewise rejected doctrinal latitude and the states’ interference in the dispute. Secondly the Remonstrants, led by 33

Grotius’s tract Remonstrantie nopende de ordre dije in de landen van Hollandt ende Westvrieslandt dijent te worden gestelt op de Joden; ed. J. Meyjer, Amsterdam 1949; Hugo Grotius’s Remonstrantie of 1615. Facsimile, Transliteration, Modern Translations and Analysis, ed. by D. Kromhout and A. Offenberg (Leiden: Brill, 2019). The text dates from 1614–​15 and is the pragmatic response to peculiar circumstance and conflicting interests. See E. Rabbie, ‘Hugo Grotius and Judaism’, pp. 99–​120.

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Arminius and Wtenbogaert, who challenged not just their competitors’ tenets but likewise their exclusive title, and relied precisely on public authorities to protect and uphold their alternative views. In between stood the mediators, who insisted that peace should prevail at all times and a scholarly debate never split the Reformed Church: men like De Nerée, Franciscus Junius, and Gerard Vossius, Grotius’s intimate and married to Junius’s daughter. In the maelstrom after 1613, these mediators lost all credibility. Vossius’s dismissal from Leiden in 1618 speaks volumes of the intransigence of hard-​liners and the pitfalls of neutrality.34 The discourse in Leiden on lapsarian tenets as such can hardly surprise us: it was part and parcel of church history; it is the escalation that reveals the rigidity in Holland. The controversy harked back to philosophical propositions of long pedigree and of a technical nature. Grotius was probably right in protesting that most debaters had not the first inkling of its true substance. Some however did, and among them was the primarius of Divinity in Leiden from 1592 to 1602, who had been Grotius’s personal tutor in his teens, Franciscus Junius. Junius never lived to witness the Troubles as in 1602 he succumbed to the plague. Still, his intellectual legacy kept hovering over the discourse. From 1596, Junius corresponded with Arminius on matters of Predestination and electi and reprobi in a detached tenor of mutual respect. This was in line with character: mild and wise Junius was often called in as mediator.35 His undogmatic, pragmatic advocacy of toleration and peace, as voiced in Le paisible Chrétien (1593) was in tenor with Melanchthon’s and Cassander’s efforts on either side of the Great Divide; he is the link between Erasmus and Grotius. In Melanchthon’s footsteps, Junius entwined Reformation and Humanism;36 he deemed reason the key to revelation and in his works applied dialectics and the formula of loci communes.37 His De Theologia Vera (1584) and De Politiae Mosis Observatione (1593) hinge on a framework of theses. With him the sapientia of theology achieved primacy among the sciences. It had been Beza, Junius’s teacher in Geneva, who had put the doctrine of predestination and the notion of electi and reprobi at the heart of Calvinist

34 35

36 37

C. de Jonge, De irenische ecclesiologie van Franciscus Junius (1545–​1602) (Nieuwkoop 1980), pp. 170–​175. De Jonge, Ecclesiologie, pp. 112–​124 exemplifies various disputes. In 1610 Junius’s authority was called in by Calvinists to challenge Wtenbogaert’s insistence on the power of civil authorities to settle the conflict. It was less than fair: Junius had only allowed this as an emergency measure should clergy and Synod fail to settle a dispute; Ibid, p. 171. And, one may add, in line with the revival of Thomistic scholastics with Jesuits like Suarez. Cf. Fr. Junius, Méthode des lieux communs de la Saint-​Ecriture (1597).

40 Eyffinger theology. Junius counted as supra-​lapsarian and his views definitely accorded most with Calvinism. Even if his correspondence with Arminius suggests that he was forever prepared to reconsider,38 De Jonge surmises that this reputation will have impaired the reception of his irenism in Remonstrant circles.39 One pillar of Junius’s tolerance and charity was his scepticism of absolute truth. As he argued, Adam’s knowledge of God, as stipulated in the foedus naturale from before the Fall, had been imperfect all along, due to the intrinsic limitations of human reason. God was the single cause of predestination and its object humanity as such, whether created or uncreated, before or after the Fall. Junius thus turned the distinction between supra-​and infra-​lapsarianism into a debate of secondary, if not moot, importance.40 In 1611, at the Hague Conference, a worried Grotius recommended the States of Holland to adopt Junius’s latitudinarianism.41 In 1613, in his conflict with Bogerman, he protested that the States’ policy complied with Junius’s position that whoever subscribed to the Fundamental Articles was to be welcomed into the church.42 Grotius’s correspondence with Vossius tells us that he fell in with Junius’s position that Christ was the foundation of this doctrine.43 2.1.2 State and Church Junius distinguished between the ecclesia triumphans in heaven and the ecclesia militans on earth. The latter combined ecclesiastical and political elements, the one aimed at the purity of faith, the other at social rest and peace. Junius’s views on the correlation of the two domains were based on natural law and scripture. He held both realms to be of divine origin, but varying in terms of nature, manner of procedure, and objective. The realm of the church implied service, the secular realm was based on authority; the first related to the communio sanctorum, the second to the human society. Yet the two should practise the synergy of body and soul: the church in order to legitimize the state, the state to protect the church.44 Natural law reserved a facilitating role for the state: civil authorities should keep order in the church as in society, but not usurp their position, as attested by Ps. 101. In Junius’s perception, their province hinged on matters circa sacra,

38 39 40 41 42 43 44

De Jonge, Ecclesiologie, pp. 163–​165. Ibid., p. 178. Ibid., pp 58–​60, 178. Ibid., p. 169. Ibid., pp. 165–​167. Ibid., p. 168. Jes. 49:23; cf. De Jonge, Ecclesiologie, pp. 79–​88.

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not in sacris: the conscience was the exclusive domain of the church. But then, the public order was sacrosanct; trespassing on the part of the church was sacrilege and justified state interference. 2.1.3 The Mosaic Legislation What links Junius to Beza is his emphasis on the law. This is best illustrated with reference to his celebrated treatise on the Mosaic Legislation (1593). It was written from concern over the Dutch Confederacy and, as he states in the preface, to enlighten his conscience. Junius called it a sorry plight he felt compelled to fulfil in spite of the personal risks involved. He respected the law, and therefore political and legal studies, for their pragmatic application of natural law and right reason to the benefit of public order, the commonwealth and the just and honorable.45 The latter’s perfect and normative manifestation was the Law of the Christ. In its specific rules and regulations on the lex humana the lex naturalis found palpable expression. To him the Mosaic Decalogue was the sublime integration of the three domains of law, reflecting Natural Law in its moral precepts, Divine Law in its ceremonial rules, and Human (Civil) Law in its political and judicial commands. Its prescripts were far superior in that their divine inspiration lifted them well above human intelligence. However, Moses’s ius particulare needed to be verified with the ius commune and the lex moralis of Christ.46 As Junius argued, it was with respect to these latter precepts that harmony in the Netherlands was in jeopardy. Partisans by unwise zealotry imperilled the truth, human charity, and public peace. Junius insisted that the primary task of theology was to serve the Communion of Saints and instruct the private conscience of the pious herd; its ultimate goal was the hereafter. The reach of the magistracy was wider to the extent that it served human society as such, more restrained in being restricted to life on earth. The methods applied differed in accordance with these varying ends: theologians reached their goal by teaching, taking guidance from God’s authority; civil authorities enforced authority of their own accord, by dint of arms if necessary; they relied on the Divine Command, Natural law and Civil Law, and therefore also on the counsel of jurists. Junius instilled moderation and restraint on authorities. In Le paisible Chrétien (1593) he championed charity, in being based on divine grace, as the way that carried to the goal of truth.47 Whoever subscribed to the fundamentals 45 46 47

Mosaic Polity, p. 37. Thesis 1: ‘The Law is the queen of all Divine and human affairs, guardian of the good and the wicked’, with reference to the Stoic Chrysippus. This is argued in the preface. Junius referred to Psalms 122 and 133 as outlining the way to Peace and its prerequisites.

42 Eyffinger of the Christian religion came within his accolade.48 By the same token, Junius’s irenics had their limits. He did not deem the time ripe for the re-​unification of churches.49 On the whole, this ‘Unionism’ was more readily met in circles of civil authorities, scholars and aristocrats than with the clergy, and understandably so; with the former, social and economic considerations also had their say. Unionists tended to retrace the vera religio to the simple creed of the first centuries, Apostolicum and Patres. They called for colloquia and church councils to restore the old ideal and, like Cassander in his De officio pii viri (1561) put their hopes in enlightened rulers to check the rabies theologorum. Grotius in exile is its typical exponent in his massive programme to link classical tradition and the Judaeo-​Christian legacy. The cleft is one on principle: Toleration aimed at public order, Unionism at bridging the Divide. At these crossroads Junius definitely took the first road, Grotius the second. For Junius, scripture prevailed at all times as against Patres and councils, whose merits and errors all rested on their interpretation of scripture.50 Intriguingly, Junius’s line of thought never made much headway at home, not even among Remonstrants.51 He may well have been too much of a humanist for doctrinal hardliners and too much caught up with church structures for political reformers.52 Still, his sympathisers were not the least: Grotius and Vossius. 2.2 Junius and Grotius 2.2.1 The Extent of Harmony A firm tradition in Dutch scholarship closely links Junius to Grotius. In overall terms and affinity of character this definitely holds true. Junius’s undogmatic approach that put religious harmony and social rest first and championed the doctrinal latitude these paramount goals required will have pleased young Grotius. As he puts it in his otherwise rather impersonal Epitaphium for Junius: cui placuit sanctae pacis amica quies. But then, wherever we probe the specifics that determined the discourse the divergence of thought is rather sobering. Junius was first and foremost a Calvinist, Grotius a humanist; Junius a theologian, Grotius a lawyer; Junius the advocate of toleration; Grotius increasingly the full-​fledged Unionist. In matters of Predestination Junius complied with 48 49 50 51 52

Junius showed less sympathy with Anabaptists and Antitrinitarians. De Jonge, Ecclesiologie, p. 134. De Jonge, Ecclesiologie, p. 141. Ibid., pp. 160–​163. Ibid., p. 185.

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orthodox supra-​Lapsarian views, Grotius came very close to Remonstrantism. The most signal clash is precisely where this counted most: in the civil strife that erupted. In defining the provinces and competences of church and state Junius drew a very strict line; Grotius, from the first, professed to outspoken Erastian views. 2.2.2 Predestination: Adamus Exul In the following we will address Grotius’s views in all the domains Junius touched upon. One element we will treat in anticipation, viz., his views on original sin, predestination and grace, in order to link Grotius’s position on these issues to a source from before Junius’s demise. This source concerns Grotius’s Neo-​Latin drama in the Senecan amble on the Fall of Man, Adamus exul, the pièce de résistance of a volume of sacred poetry (Sacra) that appeared in August 1601.53 One may share Grotius’s later reservations with respect to style and originality,54 but his display of natural law, physics and metaphysics, astrology and ethics on the occasion is impressive. Pertinent to us is Grotius’s typology of Adam and Eve in their blessed state as ‘sole owners of the world’. The couple knows of no shame, craving or evil. Or, as Satan typifies Adam, servant to God and unaware of sin, man is placed in-​between virtue and vice: his free will guides his step. Satan exploits precisely this faculty by challenging Adam’s more fickle, changeable and self-​indulgent partner, the female. The choir falls in with this assessment: Man is positioned at the crossroads, blessed in joining reason to the worship of God, unlike the rest of creation, which lacks Mind, Speech, Religion and the Soul to direct the senses. Indeed, it is precisely on account of his reason and soul that man is said to be born ‘in the Image of God’: Human reason is the impression of God’s mind and marks his participation of eternal law. Adam then exposes his views on God as the Immovable Mover of all Nature and Creation and insists on God’s Trinitary status. An angel emphatically confirms Adam’s perception of God’s nature as the source and end of all good, stresses His loving care for the world, and elaborates on the role of the human will in serving God’s will of its

53

54

Ter Meulen/​Diermanse, Bibliographie de Grotius, No. 21. The volume included poetical paraphrases of the Incipits of the four evangelists, fragments of Paul’s speeches, and a number of Psalms. The style of the play is Senecan. By February 1602 it had been staged in France in honor of its dedicatee, Prince Henri de Bourbon, heir presumptive to the throne. Grotius deemed the play too juvenile to be inserted in his Poemata collecta (1617); Adamus exul reads almost as a cento.

44 Eyffinger own accord. Eve then discusses the social appetite of man: happiness rests on partnership and sharing. Satan’s ruse, for all intents and purposes, implies fraud and mala fides. Adam counters the attack by dismissing Satan’s ‘Rebellion and Perfidy’: like lamb and wolf the two of them present worlds apart. The choir has once more given timely warning against rebellion, when Satan assails Eve on three counts: first by appeal to preordained fate and God’s Eternal and Immutable Law: a mere bite will change nothing. Secondly, with appeal to God’s insincerity: to be sure, he has offered man the world –​but ‘under condition’. For now, he has reserved a tree; he might reclaim more any day, until in the end his so-​called gift will be entirely nullified. Were God as unchangeable in his ‘generosity’ as he pretended to be, creation was never modified. Better not to live at all than to be delivered to tyranny and be less than free! Finally, and most cleverly, Satan appeals to Eve’s ignorance of good and evil. God has withheld man this knowledge from sheer envy:55 it is the very prerequisite to man’s ultimate fulfilment: his search for truth. The right move imposes itself: Eve should anticipate God’s deceit.56 Struggling to balance obeisance with curiosity and desire (‘why did I receive longing after all?’) Eve takes the bite. Confronted by Adam she avows that precisely God’s prohibition had made the move so appealing. The passage addresses the core of the human dilemma in Grotius’s concept: the conflict of will and intellect, and free will as the source of evil.57 Eve, ironically, implores Adam not to judge too rashly and invokes the sanctity of their marriage bond. Adam gets confused, can’t make up his mind –​and actually deplores his free will: if only others could decide for him and choose instead! But then, what is the loss of a mere apple to God? Shouldn’t the marriage bond prevail? In the aftermath Adam is a total wreck; he is barely kept from suicide and making the human species extinct.58 Eve, on her part, remains on top of affairs and, time and again, implores Adam to drop his emotions and use common sense.59 Adam gives in, then confronted by God devolves all guilt on Eve. She in turn brazenly confronts God: after all, he created the serpent, to whose ruse a guileless woman stood no chance. Having read His verdict, merciful God

55 56 57 58 59

Ibid. 1129–​1131: ‘Invidit illud (…) /​servare soli … voluit sibi.’ Ibid. 1210: ‘Tu fac, quod ille cogitat: fraudem occupa.’ As he put it in 1625: action can be prompted either by the Will or the Intellect, virtuous action only by the latter. Ibid. 1771: ‘Ne tota soboles pereat unius nece.’ (The Christ dies to have man survive; Ch. Pat. 1118: ‘Ne pereat orbis, pereo’ and ibid. 74–​75: ‘qua pereat orbis auctor et lethum premat vitae datorem’). Ibid. 1612–​1618.

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reassures the pair He will leave in their minds a spark of the former light, a foreboding of salvation, then dismisses the couple, thus to prevent them from stealing the apple from the other tree that would secure them longevity.60 To forestall their return, He puts Eden on fire.61 At the tender age of eighteen, Grotius had long made up his mind on a number of pertinent issues to the social debate. Adamus exul reaches well beyond the issues of predestination and grace to include Grotius’s position on eternal and natural law, virtue and truth, will and intellect, promise and Fides, obeisance and rebellion. 2.2.3 The Hebrew Constitution Running counter to mainstream political thought as presented by Bodin, Barclay or Althusius the Dutch Republic, for lack of intrinsic union, had opted for the pragmatic model of a loose Confederacy. Soon its advocates turned the predicament into a virtue and availed themselves of the ready parallel of the Hebrew Confederacy to ideologically underpin their choice. Appealing to the Divine inspiration of the Decalogue they protested the supremacy of the model as against man-​made institutions, laying claim to a special status as the new chosen ones. It prompted research into the Mosaic Legislation, and we discern three successive stages in this assessment. The first stage concerns Franciscus Junius’s De Moysis politia (1593). The second junction is the discussion of the Mosaic tradition in a lost part of Grotius’s State Parallels (1598–​1602) and in a tract attributed to him, De republica emendanda (c. 1600). A few years later, Scaliger put a promising student of his, Petrus Cunaeus, on the track of Hebrew and Arabic studies, and to that end sent him over to Drusius in Franeker. From this venture emerged Cunaeus’s epochal De republica Hebraeorum (1617) and, another treasure-​trove waiting to be explored, his later speeches on Hebrew rituals and the lustrum.62

60

61 62

The role of the other tree, that of life and death, is not without complications either. Adam insists that man is entitled to enjoy the fruits of all trees, except the one (Ad. ex. 690–​691: ‘ut vetitae arboris /​Vitare gustum, cateris liceat frui.’) Later on, he refers to this tree as that of Eternal Life (Ad. ex. 1332: ‘Non desiturae sacra quae vitae nota est.’). the choir tells us that the Almighty had planted two trees in the center of Eden, the one warranting eternal life, the other the knowledge of good and evil. Eating from the one meant death (that is the loss of immortality); Ad. ex. 991–​999. Ibid. 2005ff. Cunaeus’s first thesis at Leiden, under Arminius’s tutorship, was entitled De Legis et Evangelii Comparatione (1605), a comparison of the two Testaments typical of the academic milieu.

46 Eyffinger Grotius’s quest may well have been inspired by Junius’s treatise. His State Parallels, by his own saying, featured a detailed exposition of Moses’s commandments. In another major treatise from these years that was likewise lost, Philarchaeus, he once more addressed the Decalogue, if apparently from a different angle. Very pragmatic socio-​political considerations seem to have spurred this intrigue of Grotius. In the 1980s in Vienna, a copy of a tract De Republica Emendanda was unearthed that bears Grotius’s name. Grotius’s authorship has been questioned but all in all it seems a plausible proposition.63 It presents a comparison of the Hebrew and Dutch confederacies and has distinct political overtones. Grotius’s keen interest in constitutional affairs bespeaks their topicality in the emerging state system and the Dutch predicament, which prompted a range of intriguing tracts in the nation’s quest for the summum bonum.64 His comparative approach, under reference to ancient or contemporary counterparts, marked an established formula. Next to reviews of the Athenian, Spartan and Roman models of state, the Swiss confederacy and the republican ‘Venetian Myth’ were parallels readily drawn.65 Research into the Hebrew Republic constituted a category of its own, reflecting an international train of thought labelled ‘Political Hebraism’.66 In De republica emendanda (dre), the Hebrew republic is presented as the ideal proposition. The argument runs parallel to Junius’s treatise: man-​ made constitutions labor from myopia, bias or downright deceit. A product of divine inspiration is by definition superior –​and so, therefore, was the Hebrew confederacy. This particular model of state was a theocracy: all virtues were 63 64 65

66

Cf. the Introductory Note to my provisional edition of the tract in Grotiana, 5 (1984). Theoretical expositions exemplifying this quest are Paulus’ Buys De Republica (1613) and Paullus Merula Commentariolus de statu Confederatorum Belgii (1618). Althusius’s Politica methodice digesta (1602) was enlarged in 1610 and 1614. Cf. Simler’s De Republycke van Switserlandt (1613) and François Petit’s comparison of the two confederacies (1615). See my comments in Grotiana 5 (1984), pp. 44ff. On the tradition of the Venetian Myth see a.o. Dirck Graswinckel’s Libertas Veneta (1634), Thysius Oratio (1645) and Van Hoogstraten’s Afzetsel (1715). The reference is to Junius’s De observatione politiae Moysis (1593). Prominent sources of the period were Sanctus Pagninus, Hebraicarum Institutionum (1549); Andreas Fricius (or Modrevius) De Republica Emendanda (1551); Bonaventura Bertram, De Republica Ebraeorum (1574); Carolus Sigonius, De Republica Hebraeorum (1585, reissued in the Netherlands in 1608). Other likely sources for Grotius were the works of Bodin, Althusius and Hotman; Henning Arnisaeus’ political works; Pierre Grégoire’s Syntagma iuris universi atque legum pene omnium gentium (1582) and De Republica (1591); Bartholomeus Keckermannus‘Systema Grammaticae Hebraeae and probably Bullinger’s Huysboeck and Wolfgang Musculus’ Loci communes theologici (1554).

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regarded as derivatives of the one paramount virtue of religio (‘virtutes omnes partes religionis’). Its downfall had been that man is prone to fall short of perfection, whether due to zealotry or its opposite, indifference. As the argument runs in dre, the Hebrew and Dutch confederacies revealed a distinct congruency in terms of genesis and ends. Both nations had embraced the true faith along with attaining political sovereignty from foreign rule.67 Again, both preferred divine to human authority: the Dutch Reformed Church was founded in obeisance of God, the state in turn for the sake of the church; its moral ambitions were the strict observance of secular laws; the instruction of ministers; works of charity, and the appliance of political science. In the Mosaic Legislation, dre argues, absolute monarchy and strict democracy are both rejected. In God’s discourse with Samuel, the aristocratic model of state was embraced on logical grounds and as best fit to human nature. The twelve Hebrew tribes were ruled by a sovereign senate that dealt with sacred laws, public order and jurisdiction, and was seconded by a King of the ‘Spartan’ type of primus inter pares. dre presents the ideal political model as a mixture of monarchy, aristocracy, and democracy that combines the elements of majesty, authority, and liberty. Touchstone of the true republic is the supreme authority of the law. Unfortunately, it is argued, and unlike the Hebrew confederacy the Dutch Republic is no true state but at best a military alliance. What jeopardizes its stability is thriving particularism, both between and within its constituent elements, the provinces, on top of the absence of a central court of appeal. dre recommends the enforcement of central administration, a sovereign council and a supreme law court. Whereas in State Parallels Grotius extols the public and private virtues of the Dutch to impress an international audience, in dre, which may well have been drafted as an internal memorandum, he voices the serious concerns he is to repeat time and again in his position as council to Van Oldenbarnevelt, to the point of making him reject the Truce of 1609. 2.3 Grotius and Cunaeus 2.3.1 Personal and Intellectual Affinities We now turn to the intellectual who was among Grotius’s most steadfast allies in the Remonstrant Troubles. Petrus Cunaeus was professor of political science in Leiden and a highly intriguing character. Raised in Zeeland and a pupil of

67

See my essay ‘ “How Wondrously Moses Goes Along with the House of Orange!” Hugo Grotius’ De Republica Emendanda in the Context of the Dutch Revolt’, in Political Hebraism, ed. by Schochet et al., pp. 107–​147.

48 Eyffinger Scaliger and Drusius he had attended courses with Arminius and Gomarus68 and was an intimate of Casaubonus. Cunaeus was a man of keen intellect, outspoken views, a readily inflammable nature and mordant wit. A discerning philological critic,69 his primary interest was man rather than matter: man’s follies, man’s superstitions, man’s cunning. In the heyday of unrest at Leiden following Vorstius’s appointment,70 he published a venomous Menippean satire Sardi venales (‘Fools for Sale’, 1612), in which he made short shrift of the pedantry of university dons, the imbecility of clergymen and self-​acclaimed theologians, and the fickleness of the mob.71 Cunaeus greatly admired Grotius’s personality and versatility, and readily shared his aristocratic and Remonstrant feelings. He threw in his lot with the Oldenbarnevelt regime and was directly involved with Grotius’s works in the 1610s; their mutual trust was implied.72 In September 1617, with tension growing, drafts of Grotius’s De satisfactione and De imperio circulated with Cunaeus and his father-​in-​law, Van Zeyst. Upon the latter’s sudden demise, Cunaeus, to Grotius’s utter relief, timely secured the manuscripts.73 To attest to his intellectual status, Cunaeus miraculously survived the purges of 1618 to 1619.

68

69 70

71 72

73

In 1605, the year the Remonstrant Troubles between Arminius and Gomarus first surfaced and the States of Holland arranged a first conciliatory meeting, Cunaeus defended theses that bespoke the dispute, De legis et evangelii comparatione with Arminius. In 1606 he defended theses De cultu adorationis with Gomarus; M. J. A. M. Ahsmann and R. Feenstra, Bibliografie van hoogleraren in de rechten aan de Leidse Universiteit tot 1811 (Amsterdam: knaw, 1984), p. 85. Witness his Notae et animadversiones in Nonni panopolitae Dionysiaca, in quo errores et inscitiam illius autoris persecutus est (Leiden 1610). In the subtitle Cunaeus confidently declared he had made short shrift of Nonnus’s ‘errores et inscitiam’. Pursuant to Arminius’s demise (1609), the States of Holland, perhaps unwisely, appointed Conrad Vorstius whose orthodoxy was suspect and first made Gomarists question the authority of the States to deal with university appointments. Subsequent debate prompted Hugo Grotius’s Ordinum pietas 1613 (ed. by E. Rabbie, Leiden 1995) in defence of States’ policy. Sardi venales, satyra menippea in hujus saeculi homines plerosque inepte eruditos (Leiden 1612) was a venomous libel on the Leiden world of learning recalling Justus Lipsius’s Somnium (1581); the publication prompted student riots. Cunaeus’s role as reviewer of Grotius’s manuscripts of Meletius, Ordinum Pietas and De satisfactione is amply documented. Upon receiving a copy of the last work, he declared himself struck by the compelling logic of Grotius’s arguments: ‘Now you have nailed them, these vipers’, he argued, ‘They’d better come up with some very strong arguments now, or they’re finished.’ bw, i p. 588, No. 536, dd. 28.09.1617.

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2.3.2 The Hebrew Constitution Cunaeus’s De republica Hebraeorum (drh, 1617)74 is a compelling treatise bespeaking the author’s solid biblical research and comfortable command of philology, the law and theology alike. More than this, it is an argumentative, personal testimony. To be sure, in Cunaeus’s hands nothing could ever turn out non-​committal; but the tract’s provocative tenor marks it as the brave answer to predicament. Cunaeus sketches social antagonism in the most acute terms and insists on the clean separation of minds in Holland with regard to biblical exegesis and Hebrew studies. He emphatically links this to a division in methodology: keenly aware of the demands of modern hermeneutics, he insists on the dictate of reason, sound proof and the inductive method as against the appeal to authority and opinion.75 The treatise’s foremost rationale and objective is to give fair warning to the body politic, in acute peril of losing its grip on society, not to be trapped by the conniving political machinations of religious zealots of the type of Jeroboam, who had been the undoing of the Hebrew Commonwealth.76 Throughout the analysis records of the corruptive, self-​destructive impact of power –​be this at the hands of kings, high priests or Levites –​and of the pitfalls of religious zealotry stand out as buoys at sea.77 drh originated as part of a comprehensive comparative analysis of models of state of the nature of Grotius’s State Parallels.78 Its separate publication was accelerated by Walaeus’ Het ampt der Kerckendienaren (1615), a rebuttal of the policies of the States of Holland as an ‘Erastian’ fallacy.79 Cunaeus turned the affinity of the Dutch with the Hebrew model of state against them. Imminent constitutional crisis, he argued, imposed the pressing need for the Dutch to acquaint themselves with the grounds for the sad 74 75 76 77 78

79

For an English translation see Petrus Cunaeus, The Hebrew Republic, tr. and ann. by Peter Wyetzner, Jerusalem–​New York 2006. For the historical context and Cunaeus’s relationship with Grotius see my ‘Introduction’, ibid., pp. ix-​l xx. Cf. notably Bk. ii, Ch. 15 (edn Wyetzner, p. 163); Bk. iii, Ch. 3 edn Wyetzner, p. 171). drh 1617, Bk. i, Ch. 15 (edn Wyetzner, pp. 61ff.); ibid. Bk. i, Ch. 16 (edn Wyetzner pp. 65ff). drh Bk. ii, Ch. 3–​9 (edn Wyetzner, pp. 85–​107). As Cunaeus intimates in his preface to Book iii (edn Wyetzner, p. 155), the treatise was the first step of a more ambitious project to probe the characteristics all states and republics held in common. A glimpse of what he had in mind may be found in his farewell speech from 1638 on ‘De annis climactericis et eorum vi in rerumpublicarum et civitatum conversionem’, in Idem, Orationes varii argumenti (Leiden: Crommelin, 1640), pp. 42–​59. Ant. Walaeus, Het ampt der Kerckendienaren (Middelburg 1615). The treatise was a refutation of State policies and Uytenbogaert’s position. By 1615 the politico-​religious debate focused almost exclusively on Church and State and Erastian policies. Grotius, Cunaeus and Wtenbogaert were Walaeus’ foremost antagonists.

50 Eyffinger undoing of that model confederacy. The Hebrew Republic had been unique to the extent that Moses had been unique by comparison with other legislators.80 The latter might instil virtue and courage upon their citizens, they did not teach faith the way Moses’s Decalogue did to hold the Hebrew republic together.81 Their laws, the products of human ingenuity, were upheld by virtue of the severity of their penalties. The ordinances of the eternal God, by contrast, were immutable; they did not rely on axe and rod but on the sanctity of religion.82 To anticipate a core concept of Grotius’s, a signal aspect of the wisdom of Moses’s legislation, drh posits, was its philosophy on property and the redistribution of land at the jubilee.83 Another intriguing element Cunaeus touches upon to link his treatise to our debate is his review of the Hebrew concept of sovereignty.84 Cunaeus’s core message is clear-​cut, as evidenced by his dedication to the States of Holland: Moses’s republic was the holiest and the most effective model of state, and the best to emulate.85 What made for the success of the twelve tribes was their unity and co-​operation. Whereas, to go by their prosperity, each tribe could well pose as a state in its own right, they all shared the same laws and judges, magistrates and senators, measurements and currency, and jointly warranted the people’s liberty. Jeroboam had replaced true religion with empty superstition. What had started as a battle for freedom, sovereignty and the True Faith had boiled down to discord about sacred rituals and places of worship. The parallel was obvious. Cunaeus gave the States of Holland timely warning: factions and sections are multiplying in our republic. The bones of contention are pointless issues of doctrine. The mob, as usual, is the plaything of whims and passions. Be aware of the fate of your precedent, that holiest and best of republics. Cunaeus’s tract of 1617 served the goals exactly Grotius had in mind two decades before with De republica emendanda.

80 81 82 83 84 85

Hebrew Republic, Introduction Book iii. As Cunaeus argued, the comparison of Moses’s legislation and the institutions and laws of other nations would be at the heart of his major project to be. Introduction Book iii. Hebrew Republic, Bk. i, Ch. 1 (edn Wyetzner, p. 13). Hebrew Republic, Bk. i, Ch. 2 (edn Wyetzner, pp. 14–​15) with reference to Levit. 25 and Deut. 15. Hebrew Republic, Bk. i, Ch. 9 (edn Wyetzner, p. 39. Cunaeus refers to Cic. Part. orat. 105 and Liv. 38.11.2. As for Cunaeus’s politically inspired review of the composition and social stratification of the Sanhedrin, Hebrew Republic, Bk i, Ch. 12 (edn Wyetzner, pp. 48–​49). Hebrew Republic, Preface (edn Wyetzner, pp. 3–​6).

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Junius, Franciscus, Eirenicum de pace ecclesiae catholicae inter christianos. Leiden : Raphelengius, 1593. Junius, Franciscus, Méthode des lieux communs de la Sainte-​Ecriture, disposez selon l’ordre des chapitres, que Calvin a suivi en son Institution, divisé en cinq tables. 1597 [no longer extant]. Junius, Franciscus, Prōtoktisia, seu Creationis a Deo factae, et in ea prioris Adami ex creatione integri, & ex lapsu corrupti, historia. [Heidelberg]: ex off. Santandreana 1603. Keckermannus, Bartholomeus, Systema Grammaticae Hebraeae. Hanover: Antonius, s.a. [ca. 1600]. Lipsius, Justus, Politicorum sive civilis doctrinae libri sex. Leiden: Raphelengius, 1589, modern edn: Politica: six books of politics or political instruction, ed. with transl. [from the Latin] and introd. by Jan Waszink, Assen: Van Gorcum, 2004. Martiani Minei Felicis Capellae Satyricon: in quo De nuptiis philologiae et Mercurii libri duo, et De septem artibus liberalibus libri singulares /​omnes, et emendati, et notis, sive februis Hug. Grotii illustrate. [Leiden]: Raphelengius, 1599. Merula, Paulus, De statu reipublicae Batavicae diatriba (1618), in Respublica Hollandiae et urbes, ed. by Petrus Scriverius. Leiden: Maire, 1630, pp. 139–​162. Musculus, Wolfgang, Loci communes theologici. Erfurt: Baumann, 1554. Petit, Jean François le, Nederlantsche Republycke, bestaende inde Staten so generale, als particuliere … geconfereert ende vergeleken met die van de Swytsersche Cantoenen. Arnhem: Le Petit, 1615. Rivet, André, Isagoge ad scripturam sacram Veteris et Novi Testamenti. Dordrecht, 1616. Rivet, André, Johannes Polyander, Antonius Thysius, Antonius Walaeus, Synopsis purioris theologiae. Leiden: Elzevir, 1626. Rivet, André, Apologeticus pro suo de verae et sincerae pacis ecclesiae proposito, contra Grotii Votum, Leiden: Elzevir, 1643. Pagninus, Santes, Hebraicarum institutionum libri IV ex rabbi D. Kimchi. Lyon, 1526. Sigonius, Carolus, De Republica Hebraeorum. Bologna, 1582, reissued i.a. in the Netherlands in 1678, by Willem Goeree in Middelburg, publisher of Cuneaus reprints and translations as well. Simler, Josias, De republycke van Switserlandt. Inhoudende den ghemeijnen staet van de derthien cantons. Delft: Adriaen Gerritsz, 1613. Soto, Domingo de, De iustitia et iure libri decem. Salamanca: Andrea à Portonariis, 1553. Suarez, Francisco, De legibus et Deo legislatore. Coimbra 1612. Testamenti veteris Biblia sacra, tr. from the Hebrew by Franciscus Junius and Immanuel Tremellius. London: Henry Middleton, 1580. Thysius, Antonius, Oratio panegyrica, in rempvblicam Venetam. Leiden: Christiani, 1645. [Hoogstraten, Jan van] J. V. H., Afzetzel van de repuplyk, of vrye staat van Venetië, begrepen in 3 boeken. Lof van Venetie. Amsterdam: van de Gaete, 1715.

54 Eyffinger Vazquez, Gabriel, Commentarii ac Disputationes, Commentariorvm ac dispvtationvm in (partes) Sancti Thomæ, 8 vols. Alcalá de Henares: Crespo/​Gracián, 1598–​1615. Vossius, G.J., Chronologiae sacrae isagogae, sive De vltimis mvndi antiquitatibus, ac imprimis de temporibus rerum Hebræarum dissertationes VIII. The Hague: Vlacq, 1659. Vossius, Isaac, Dissertatio de vera aetate mundi, The Hague: Vlacq, 1659, repr. in Isaaci Vossii De septuaginta interpretibus, eorumque tralatione & chronologia dissertationes. The Hague: Vlacq, 1661, pp. 141–​186. Walaeus, Antonius, Het ampt der Kerckendienaren; mitsgaders de authoriteyt, ende opsicht, die een Hooghe Christelicke Overheydt daer over toecompt. Waerin sekere nadere bedenckingen. … maar insonderheyt over het Tractaet des E.J. Wtenbogaerts. Middelburg 1615.



Secondary Literature

Ahsmann, Margreet, en R. Feenstra, Bibliografie van hoogleraren in de rechten aan de Leidse Universiteit tot 1811. Amsterdam: knaw, 1984. Briefwisseling van Hugo Grotius, 17 vols, ed. by P.C. Molhuysen, B.L. Meulenbroek, Paula P. Witkam, Henk J.M. Nellen and Cornelia M. Ridderikhoff. Den Haag: Martinus Nijhoff, 1928–​2001. Dulles, A., A History of Apologetics. London, Hutchinson, 1971. Eyffinger, Arthur, ‘ “How Wondrously Moses Goes Along with the House of Orange!” Hugo Grotius’ De Republica Emendanda in the Context of the Dutch Revolt’, in Political Hebraism, ed. by Schochet et al., pp. 107–​147. Grafton, A., J. Scaliger, A Study in the History of Classical Scholarship, 2 vols. Oxford: Clarendon Press, 1983, 1993. Heering, Jan-​Paul, Hugo Grotius as Apologist for the Christian Religion. A Study of His Work De Veritate Religionis Christianae (1640). Leiden-​Boston: Brill, 2004. Jonge, C. de, De irenische ecclesiologie van Franciscus Junius (1545–​1602). Nieuwkoop: De Graaf, 1980. Juynboll, W.M.C., Zeventiende-​eeuwse beoefenaars van het Arabisch in Nederland. Utrecht: Kemink, 1931. Lachs, P.S., ‘H. Grotius’ use of Jewish sources in On the Law of War and Peace’, Renaissance Quarterly 30 (1977), pp. 181–​200. Lebram, J.C., ‘Hebräische Studien Zwischen Ideal Und Wirklichkeit an Der Universität Leiden in Den Jahren 1575–​1619’, Nederlands Archief voor Kerkgeschiedenis, ns 56 (1975/​6), pp. 317–​357. Lebram, Jürgen-​Christian, ‘Ein Streit um die hebräische Bibel und die Septuaginta’, in Leiden University in the 17th Century: an Exchange of Learning, ed. by Th. H. Lunsingh Scheurleer and G. H. M. Posthumus Meyjes. Leiden: Universitaire Pers /​Brill, 1975.

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Nellen, H.J.M., ‘Growing Tension between Church Doctrines and Critical Exegesis of the Old Testament’, in Hebrew Bible /​Old Testament, The History of Its Interpretation, ed. by Magne Saebo. Göttingen: Vandenhoeck & Ruprecht, 2008. pp. 802–​826. Nelson, Eric, The Hebrew Republic; Jewish Sources and the Transformation of European Political Thought. Cambridge /​London: Harvard University Press, 2010. Political Hebraism, Judaic Sources in Early Modern Political Thought, ed. by Gordon Schochet, Fania Oz. Salzberger and Meirav Jones. Jerusalem /​New York: Shalem Press, 2008. Rabbie, E., ‘Hugo Grotius and Judaism’, in Hugo Grotius Theologian. Essays Posthumus Meyjes [Stud. Hist. Christ. Thought, Vol. 53], ed. by H.J.M. Nellen and E. Rabbie. Leiden: Brill, 1994. Rooden, P.T. van, Theology, biblical scholarship, and rabbinical studies in the seventeenth century: Constantijn L’Empereur (1591–​1648), professor of Hebrew and theology at Leiden. Leiden: Brill, 1989. Rosenberg, W., ‘Hugo Grotius as Hebraist’, Studia Rosenthaliana 12 (1978), pp. 62–​90. Somos, Mark, Secularisation and the Leiden Circle. Leiden: Brill, 2011. Ter Meulen, Jacob, and P. J. J. Diermanse, Bibliographie des écrits imprimés de Hugo Grotius. The Hague: Nijhoff, 1950.

­c hapter 3

‘Without Prophetic and Apostolic Voices’ Niels Hemmingsen’s On the Law of Nature According to a Demonstrative Method Mads Langballe Jensen 1

Introduction

Niels Hemmingsen was arguably the most significant Danish thinker of the sixteenth-​century Reformation, and as such continues to attract attention. He was one of Philipp Melanchthon’s most accomplished students, returning to Denmark to become professor of Greek, Dialectics, Hebrew and finally Theology. According to one historian, he was the most printed Protestant author in Leipzig and Wittenberg in the 1560s and 1570s. He wrote a range of theological and philosophical works, mostly in Latin, which were translated into German, English and all the Nordic languages.1 Today, he is perhaps best known for the 1562 On the law of nature according to a demonstrative method (De lege naturae apodictica methodus). This work is famous as the first attempt to set out a theory of natural law on the basis of reason and, as Hemmingsen wrote, ‘without prophetic and apostolic voices’.2 As such it has received a certain amount of attention in the scholarship on the history of natural law since as early as the seventeenth century. The earliest histories of natural law were concerned with identifying Hemmingsen’s choice of the ‘principle’ of natural law and his method in treating the law of nature, and subsequent discussions have sought to evaluate Hemmingsen as a precursor to Hugo Grotius. More recent scholarship, however, has discussed Hemmingsen as a follower of Philipp Melanchthon, 1 Leif Grane, ‘Melanchthons prägender Einfluss auf die Reformation in den skandinavischen Ländern’, in Melanchthon und Europa: Skandinavien und Mittelosteuropa, ed. by Günter Frank, Kees Meerhoff, and Martin Treu, Melanchthon-​Schriften der Stadt Bretten (Stuttgart: Jan Thorbecke Verlag, 2001), pp. 11–​26. 2 I will throughout be referring (by section) to the Danish parallel translation, Niels Hemmingsen, Om Naturens Lov, trans. by Richard Mott, 3 vols (København: Øresund, 1991), sec. 291. Translations into English are my own, but readers can now compare the fine translation in Niels Hemmingsen, On the law of nature: a demonstrative method, trans. and ed. by E. J. Hutchinson (Grand Rapids, Michigan: clp Academic, 2018).

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but with significant disagreement as to the nature and significance of Melanchthon’s and Hemmingsen’s theories of natural law and their uses of the Decalogue. This chapter seeks to clarify the nature of Hemmingsen’s contribution in De lege naturae to the Philippist philosophical and political programme. Where much scholarship has emphasised the role and primacy of the Decalogue in Melanchthon’s and Hemmingsen’s natural law theories, this chapter argues that this is misleading.3 It contends that Melanchthon’s moral philosophical works contained a clear conception of natural law and moral philosophy as developed, by philosophers, on the basis of reason and that Hemmingsen carried forward and developed this programme. This in turn sheds light on our conception of the ‘Lutheran’ ‘politica christiana’. Recent scholarship has emphasised how the political thought of the Lutheran reformation was a ‘political theology’ developed by ‘political theologians’ on the basis of scripture in the service of a confessional agenda. This chapter argues that in De lege naturae, Hemmingsen was engaged in developing a defence of the ‘Lutheran’ confessional social and political order not as a political theology based on Scripture, but rather as a ‘rational’, philosophical theory of natural law and politics. Following a brief overview of the scholarship on Hemmingsen’s De lege na­turae (section 2), the chapter then turns to a brief biography of Hemmingsen and an account of Melanchthon’s moral philosophical programme at the time he would have encountered it in Wittenberg (section 3). On this basis, section 4 turns to an analysis of De lege naturae with particular attention to the method and approach of Hemmingsen’s philosophical discussion of the law of nature. This allows for a discussion in section 5 of how this theory of natural law provided a philosophical defence of certain confessionally specific arguments concerning political order and authority, in particular the three estates doctrine and the ruler’s duty to uphold Lutheran doctrine. The chapter concludes with a summary characterisation of Hemmingsen’s development of Philippist natural law theory, and what this means for our understanding of the ‘Lutheran’ ‘politica christiana’. 2

Hemmingsen and the Political Thought of the Lutheran Reformation

Where once Luther and the Protestant Reformation could be discussed alongside Machiavelli as foundational moments in the history of modern, secular 3 Notably Merio Scattola and John Witte Jr., see references below footnotes 9 and 11.

58 Jensen political thought, this is no longer the case. Instead, recent scholarship has emphasised the theological aspects of the confessional(ising) political thought of the Protestant reformers. Scholars such as Luise Schorn-​Schütte, Thomas Kaufmann and Robert von Friedeburg have described how Lutheran theologians developed a ‘politica christiana’ for the new Lutheran principalities. According to this view, the defining characteristics of this ‘politica christiana’ are the confessional doctrine of the three orders of creation as structuring the social order within a theological apocalyptic horizon. As one summary account put it, this was a ‘political theology’ developed by ‘political theologians’, with sacred scripture as the prime epistemological and normative framework.4 This emphasis on theology and confessional concerns has also characterised recent interpretations of Melanchthon’s moral thought. Günter Frank has argued that for Melanchthon ‘strictly speaking, there is no practical philosophy at all, but rather a practical theology.’5 Building on Frank’s work, Gideon Stiening has argued further that Melanchthon subsumed politics and philosophy under theology in the same way as the scholastics Francisco Vitoria and Francisco Suarez.6 Central to this is an interpretation of Melanchthon’s theory of natural

4 ‘Politische Theologen,’ ‘theologisierte Politik.’ The terms are in Weiss, who also cites Melanchthon’s Politics commentary in defining ‘politica christiana,’ Matthias Weiss, ‘ “… weltliche hendel werden geistlich”. Zur politica christiana des 16. Jahrhunderts’, in Ideen als gesellschaftliche Gestaltungskraft im Europa der Neuzeit: Beiträge für eine erneuerte Geistesgeschichte, ed. by Lutz Raphael and Heinz-​Elmar Tenorth (München: R. Oldenbourg Verlag, 2006), pp. 109–​24 (pp. 110, 122). For a summary of the research, see Luise Schorn-​Schütte, ‘Obrigkeitskritik und Widerstandsrecht. Die politica christiana als Legitimitätsgrundlage’, in Aspekte der politischen Kommunikation im Europa des 16. und 17. Jahrhunderts. Politische Theologie, Res Publica, Verständnis, konsensgestützte Herrschaft, ed. by Luise Schorn-​Schütte (München: R. Oldenbourg Verlag, 2004); Luise Schorn-​ Schütte, ‘Kommunikation über Herrschaft: Obrigkeitskritik im 16. Jahrhundert’, in Ideen als gesellschaftliche Gestaltungskraft im Europa der Neuzeit: Beiträge für eine erneuerte Geistesgeschichte, ed. by Lutz Raphael and Heinz-​Elmar Tenorth (München: R. Oldenbourg Verlag, 2006), pp. 71–​108; Thomas Kaufmann, ‘Freedom and Apocalyptic Thinking in Early Modern Lutheranism’, in Freedom and the Construction of Europe, ed. by Quentin Skinner and Martin van Gelderen, 2 vols (Cambridge: Cambridge University Press, 2013), i, pp. 11–​20. 5 Günter Frank, ‘The Reason of Acting: Melanchthon’s Concept of Practical Philosophy and the Question of the Unity and Consistency of His Philosophy’, in Moral Philosophy on the Threshold of Modernity, ed. by Jill Kraye and Risto Saarinen (Dordrecht: Kluwer Academic, 2005), pp. 217–​33 (p. 230). Emphasis in original. 6 Gideon Stiening, ‘Notitiae principiorum practicorum: Melanchthons Rechtslehre zwischen Machiavelli und Vitoria’, in Der Philosoph Melanchthon, ed. by Günter Frank and Felix Mundt (Berlin: Walter de Gruyter, 2012), pp. 115–​46 (p. 122).

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law as oriented towards innate ideas inscribed by God on the minds of men and revealed in the precepts of the Decalogue. Interest in Hemmingsen’s De lege naturae stems both from its place as a central development of Melanchthonian natural law and, particularly in earlier scholarship, as a precursor to Hugo Grotius. Karl von Kaltenborn saw Hemmingsen as an important precursor to Grotius, mainly due to the methodological programme set out in De lege naturae. But ultimately Hemmingsen disappointed in not following his own programme: to Kaltenborn, Hemmingsen’s ‘natural law is completely intermixed with ethics and still entirely entangled in the doctrines of positive Christianity. Positive, divine and natural law is still completely collapsed’. As such the ‘content of the work must be said to be insignificant’.7 Although recent scholarship on Hemmingsen’s natural law has shared the view of the centrality of the Decalogue, it has stepped back from the concern with him as a forerunner of Grotius and instead sought to understand him on his own terms, and in particular as a student of Melanchthon. As such, the view of Hemmingsen’s theory of natural law naturally depends on the particular understanding of Melanchthon offered. In particular, the relationship between the Decalogue and the law of nature has been at the centre of discussions. In his study of ‘natural law before natural law’, Merio Scattola discusses Hemmingsen as one of several followers of Melanchthon’s natural law theory. Scattola sets out to treat the sixteenth-​century works on natural law on their own terms and argues that different conceptions of natural law are best explained in disciplinary rather than confessional terms.8 His work nevertheless relies heavily on post-​Grotian histories of natural law, and the discussion is additionally significantly informed by scholastic distinctions between realist and voluntarist theories of law.

7 ‘Der Inhalt des Werkes ist unbedeutend zu nennen. Wichtig ist nur, dass Hemming das Naturrecht philosophisch auffasst als die Wissenschaft von den Principien des Rechts. Aber dabei ist das Naturrecht völlig mit der Moral zusammenfliessend und noch gänzlich in den Satzungen des positiven Christenthums verstrickt. Positiv-​göttliches und naturliches Recht fallen noch gänzlich zusammen. […] Endlich erklärt er, es würden von ihm die decem praecepta ex principiis practicis deducirt, da mir die Sache umgekehrt scheint.’ Carl von Kaltenborn, Die Vorläufer des Hugo Grotius auf dem Gebiete des Ius Naturae et Gentium sowie der Politik im Reformationszeitalter (Leipzig: G. Mayer, 1848), i, p. 238. 8 E. J. Hutchinson, ‘Introduction. Niels Hemmingsen (1513–​1600) and the Development of Lutheran Natural-​Law Teaching’, Journal of Markets & Morality, 17.2 (2015), pp. 595–​617 (p. 599).

60 Jensen Scattola’s discussion situates Melanchthon’s theory of natural law as the central sixteenth-​century ‘philosophical’ theory of natural law. Nevertheless, Melanchthon’s theory of natural law is primarily discussed with reference to his theological works, and in particular the Loci communes. According to Scattola, Melanchthon saw natural law as something essentially given by God, through the Decalogue and through the innate ideas inscribed on the mind of man, and corresponding to the created order of the world. In this way, the law of nature provided the basis for practical philosophy.9 This is the perspective taken on Hemmingsen as well. Scattola emphasises that to Hemmingsen natural law was the foundation of practical philosophy, and that Hemmingsen adopted a basically Aristotelian view of man in discussing natural law. At the same time, however, Scattola also argues that Hemmingsen cannot offer any arguments for the existence of natural law, but only accept it as something given by god. As no real arguments can be given, natural law must instead only be seen as a number of given ‘self-​evident principles’, from which the norms of the ethical life can be obtained.10 In contrast, John Witte Jr. places greater emphasis on the Decalogue in his analysis of Melanchthon’s and Hemmingsen’s accounts of natural law. Although Melanchthon saw the law of nature as the divine law as understood by reason on the basis of innate ideas, his view of the effects of the Fall, Witte argues, made this account ambiguous. Since the Fall had damaged man’s faculties and knowledge, Melanchthon instead takes the Decalogue as the summary of the law of nature. Accordingly, the Decalogue is central to Witte’s reading of Hemmingsen’s work on natural law. As a good student of Melanchthon, he argues, Hemmingsen ‘set out to demonstrate the natural universality and superiority of the Decalogue as a source and summary of natural law’. His citations of classical works were, according to Witte, to show their compatibility with the commandments. Finally, Witte notes that Hemmingsen’s vindication of the three estates were ‘particularly impressive’.11

9 10

11

Merio Scattola, Das Naturrecht vor dem Naturrecht: zur Geschichte des ‘ius naturae’ im 16. Jahrhundert (Tübingen: Niemeyer, 1999), pp. 52f. ‘Das Naturgesetz muss also als eine Reihe von selbstverständliche Prinzipien angesehen werden, aus denen sich alle Normen des ethischen Lebens gewinnen lassen.’ Further ‘Die sittliche Ordnung wird also nicht durch eine Ableitung aus den vernünftigen Grundsätzen gegründet, sondern man bemüht sich zu zeigen, daß sie im (tugendhaften) menschlichen Handeln schon vorhanden und wirkend ist: Die Ordnung wird nicht konstruiert, sondern beschrieben.’ Scattola, Das Naturrecht, pp. 85f. John Witte, Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Cambridge University Press, 2002), p. 140.

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E. J. Hutchinson has placed greater emphasis on the role method played in Hemmingsen’s treatments of divine and natural law. Hutchinson shows how Hemmingsen adopted different philosophical and theological methods in his work on natural law and on theology respectively, but to discuss the same thing: the law of nature or the moral law. Comparing the De lege naturae and the Enchiridion theologicum, Hutchinson gives the examples of how Hemmingsen proves the fourth and fifth commandments of the Decalogue (from the bottom up and top down, as it were).12 Hutchinson has also emphasised that Hemmingsen’s work on natural law is better seen in the context of ‘Melanchthonian Lutheranism’ than as a precursor of Grotius. On Hutchinson’s account this also means that Melanchthon and Hemmingsen should not be seen as voluntarists solely seeking the validity of natural law in Scripture. Rather, they should be seen as squarely within established conceptions of natural law, e.g. that of Thomas Aquinas, although Hemmingsen also relied on the Lutheran distinction between theology and philosophy, and conceptions of the three estates. In sum, Hutchinson sees Hemmingsen’s work as entirely in line with Melanchthon, reiterating received natural law wisdom, and (in effect against Kaltenborn’s view) with any novelty being only in the method by which the conclusions are reached.13 3

Hemmingsen as Student of Melanchthon

Niels Hemmingsen was born in 1513 on the Danish island of Lolland to parents of modest social status.14 As a child and young man, Hemmingsen showed great aptitude for studies and visited a variety of different schools in the kingdom, including in Lund, where he was able to learn Greek. As a 24 year old, he was able to travel to Wittenberg where he enrolled in autumn 1537. He studied in Wittenberg until 1542 when he returned to Copenhagen. Here he was appointed professor in Greek in 1543 and in dialectics in 1545. At this time, he also lectured on Hebrew and the bible. In 1547, Hemmingsen was appointed 12 13 14

E. J. Hutchinson, ‘Divine Law, Naturally: Lex Naturae and the Decalogue in Two Works of Niels Hemmingsen’, in For Law and for Liberty: Essays on the Trans-​Atlantic Legacy of Protestant Political Thought, ed. by W. Bradford Littlejohn (Davenant Press, 2016), pp. 1–​19. Hutchinson, ‘Introduction. Niels Hemmingsen’, p. 611. For Hemmingsen’s biography, see Martin Schwarz Lausten, Niels Hemmingsen: storhed og fald (København: Anis, 2013). Dansk biografisk Lexikon tillige omfattende Norge for Tidsrummet 1537–​1814, ed. by Carl Frederik Bricka (Kjøbenhavn: Gyldendalske Boghandels Forlag, 1887), p. vii. Bind. i, pp. 324–​334. (available at http://​runeb​erg.org/​dbl/​. Accessed 14.12.2017).

62 Jensen pastor in a church in Copenhagen. After having taken a bachelor in theology in 1553, he was appointed professor of theology, and in 1557, he was made doctor of theology. Hemmingsen held the office of rector of the university several times as well as that of vice chancellor. In these years, Hemmingsen published several works, including a work on method, De methodis in 1555, a handbook in theology, Enchiridion theologicum in 1557, and De lege naturae in 1562. In the 1570s, Hemmingsen increasingly came under attack for his views on the Eucharist, particularly from Electoral Saxony. As a consequence, Hemmingsen was dismissed from his post as professor in theology in 1579 and withdrew to Roskilde. Here Hemmingsen continued his literary works alongside his administrative duties in the church. Although dismissed as professor, Hemmingsen’s fame grew abroad: a collection of his works were published in Geneva in 1586,15 and several prominent people visited Hemmingsen, including James vi in 1590.16 He died in 1600. Matthias Skat Sommer has argued persuasively that as a professor of theology in Copenhagen, Hemmingsen was a leading agent in shaping ‘post-​ Reformation Danish confessionalization’. Skat shows how he did so through shaping the social and political discourse of the Danish monarchy through his theological works and in penning several works functioning as confessional statements.17 It is a key aim of this chapter to show how his work on the law of nature too can be seen as integral to this agenda. That Hemmingsen should later write a work on the law of nature was no doubt due also to the years he visited Wittenberg and studied under Melanchthon. It was precisely in those years, from the late 1530s to the mid-​ 1540s, that Melanchthon turned to a systematic study of moral philosophy and natural law on the basis of Aristotle and published his own text books on the subject. The first edition of Melanchthon’s textbook on moral philosophy, the Philosophiae Moralis Epitome, was published in 1538, the year after Hemmingsen’s arrival, and it is likely that the Dane followed lectures on it.18 15 Niels Hemmingsen, Opuscula theologica, in unum volumen collecta, & per classes digesta: additis variis indicibus, notis, & praefationibus necessariis (Genevae: Excudebat Eustathius Vignon, 1586). 16 For an overview of the reception of Hemmingsen in Protestant Europe, see Mattias Skat Sommer, ‘Niels Hemmingsen and the Construction of a Seventeenth-​Century Protestant Memory’, Journal of Early Modern Christianity, 4/​1 (2017), pp. 135–​160. 17 Mattias Skat Sommer, Envisioning the Christian Society. Niels Hemmingsen (1513–​1600) and the Ordering of Sixteenth-​Century Denmark (Tübingen: Mohr Siebeck, 2020), p. 17, and chap. 1 for the political context. 18 For an account of Melanchthon’s natural law theory in these years, see Mads Langballe Jensen, A Humanist in Reformation Politics: Philipp Melanchthon on Political Philosophy and Natural Law (Leiden: Brill, 2020), chap. 3.

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Natural law played a central role in Melanchthon’s moral philosophy. The law of nature provided the normative and epistemic foundation for moral philosophy, which was as such an explication of natural law. At the same time, the concept of natural law provided Melanchthon with a means of clarifying the relationship between the Gospel and moral philosophy, as well as the legitimacy and necessity of moral philosophy for Christians. Central to this stood the distinction between Gospel and (divine) law. The Gospel was the revealed word of god concerning salvation through Christ. This was a knowledge which reason could not know.19 Moral philosophy, however, was the domain of reason, dealing with a specific aspect of divine law. In the first edition, Melanchthon at the outset defined it thus: ‘It is evident that the law of nature is that same law of God concerning those virtues, which reason can understand. A more fitting and true definition cannot be given, than that moral philosophy is that part of divine law or the Decalogue which reason understands’. Later, it was described in more technical terms thus: ‘[the term] natural law properly signifies the natural notions, that is, the practical principles, and correct and necessary conclusions following from these principles, concerning the actions that are appropriate to man in this society’.20 Melanchthon did not deny the impact the Fall had had on man, far from it. A further distinction with divine law was needed. The lex Dei was the ‘knowledge of how we should be, and what acts should be done before God and men.’21 Man’s knowledge of this law had indeed been damaged by the Fall. Specifically, ‘even though the divine law is impressed on the nature of man, in this weakness of nature, reason cannot adequately comprehend what the law commands concerning spiritual emotions towards God and perfect obedience’. But at the same time Melanchthon clearly indicated an area in which moral philosophy, as a product of reason and learning, could judge rightly: ‘but the judgement concerning civil actions remains, which itself is the law of nature, a part of divine law. Human nature has nothing more outstanding or

19 Philipp Melanchthon, Philosophiae moralis epitomae libri duo emendati & aucti (Strassburg: Kraft Müller, 1540), p. 2. 20 ‘Constat autem legem naturae esse ipsam legem Dei de his virtutibus quas ratio intelligit. Nec alia aptior aut verior definitio excogitari potest, quam si definiamus Philosophiam Moralem esse partem legis divinae seu decalogi, quatenus eam ratio pervidet.’ ‘Ius naturae proprie significat notitias naturales, hoc est principia practica, conclusiones, recta & necessaria consequentia ex illis principiis orta de actionibus quae in hac societate conveniunt homini.’ Melanchthon, Philosophiae moralis epitomae (1540), pp. 2f. 21 Philipp Melanchthon, Philosophiae moralis epitome, Philippo Melanchthone autore, Nunquam antea excusa (Straßburg: Müller, Kraft, 1538), p. 2.

64 Jensen dignified.’22 In short, reason and natural law could judge concerning ‘civil actions’, but ‘perfect obedience’, that is, the ‘spiritual emotions towards God’ was now beyond reason and natural law. As has been often noted, Melanchthon did frequently refer to the Decalogue as a summary of natural law. But it is important to be clear on the precise philosophical role he accorded to this ‘divine’ summary. The Decalogue was, according to Melanchthon, a wonderful ‘method’ of categorising the precepts of natural law. But it would not be correct to say that he derived natural law from the Decalogue. This would have been problematic, as Melanchthon held the Decalogue, the moral law, to be binding on the Christian precisely because it conformed to the law of nature.23 Rather, Melanchthon used the Decalogue as a summary, as a pedagogical tool. Since he was teaching unschooled youth, he used the Decalogue because the philosophical method, although erudite, would be too copious for his purposes.24 As such, Melanchthon also characterised the Decalogue as ‘paraenetic’, or ‘pure precepts’, as opposed to the demonstrations properly found in moral philosophy.25 Despite his frequent recourse to the Ten Commandments, then, Melanchthon was adamant that there was a philosophical method of determining natural law by, as he put it in the 1540 edition, ‘investigating the causes and ends proper to man’.26 It was this Philippist conception of philosophical natural law that Hemmingsen developed.

22

23

24 25

26

‘Nam etsi lex divina impressa est naturae hominis, tamen in hac imbecillitate non satis perspicit ratio, ea quae praecipit lex de spiritualibus motus erga Deum, & de perfecta obedientia, non intelligit concupiscentiam peccatum esse. Sed manet iudicium de actionibus civilibus, quod ipsum tamen est lex naturae, & pars legis divinae. Nec habet humana natura quidquam praestantius aut dignius.’ Melanchthon, Philosophiae moralis epitome (1538), p. 3. ‘Omnia moralia praecepta in Decalogum includimus, ut quasi methodum aliquam tene­ amus. […] Ac satis apparet hanc epitomem non humana, sed divina quadam sapientia compositam esse. […] Hae sententiae quum sint notitiae in natura scriptae, non possunt abrogari, sed durant cum ipsa hominis natura. […] Moralia vero pertinent ad omnes gentes, non propter Mosen, sed propter legem naturae.’ Philipp Melanchthon, Loci communes theologici recens collecti & recogniti (Straßburg: Johann Albrecht, 1536), fols 35v-​36v. ‘Hae [philosophical] ratiocinationes sunt plenae eruditionis, sed quia sunt prolixiores, utamur compendio decalogi.’ Melanchthon, Philosophiae moralis epitomae (1540), p. 80. ‘paraenetici libelli continent nuda precepta sine caussis & rationibus. At philosophia quaerit demonstrationes & causas preceptionum in natura positas […] paraeneticos libellos, qualis est praecipue decalogus’, Melanchthon, Philosophiae moralis epitomae (1540), p. 10. ‘inspectis causis et effectibus propriis hominis’ Melanchthon, Philosophiae moralis epitomae, p. 66. For more on this, see Jensen, A Humanist in Reformation Politics, 108ff.

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Hemmingsen’s Philosophical Account of Natural Law

The Occasion of the Work: Hemmingsen’s Dedication to Erik Krabbe 4.1 Hemmingsen was explicit about continuing this Philippist programme in De lege naturae. In the preface, Hemmingsen remarked that others had touched upon the law of nature before him, although not discussed it in a methodological manner. These included the ancient poets and philosophers as well as Melanchthon, whom Hemmingsen explicitly defended against his detractors.27 Hemmingsen explained the occasion and aim of the work in the dedicatory letter to the nobleman and member of the Council of the Realm Erik Krabbe. Here, Hemmingsen emphasised, with copious quotations from ancient authors, the necessity of justice for political order and government. His work, Hemmingsen explained, was an investigation into the nature and foundation of justice. Furthermore, the work had contemporary relevance, for Krabbe was engaged in compiling and systematising Danish laws. Since these were in fact a collection of several, disparate local laws from the various parts of the Danish realms, they had to be compared and related to their foundation, the law of nature from which they were derived.28 Hemmingsen emphasised that by treating the law of nature according to a demonstrative method he wished to illustrate a ‘part of philosophy that ought to be known by all’. Hemmingsen recognised that since he, as a theologian, was treating the law of nature, others might suspect him of, with the old expression, ‘putting his sickle in another man’s crop’. He therefore explained that he had come across the topic while lecturing on Paul’s letter to the Romans. Romans 2.14 mentioned the law of nature, and this had prompted Hemmingsen to turn to a separate investigation of the topic.29 Hemmingsen emphasised that he had wished to prove that the law of nature and moral philosophy could indeed be demonstrated and thus based on certain knowledge. Despite Hemmingsen being a professor of theology, he thus emphasised that the investigation of the law of nature were primarily useful to other professions: moral philosophers, lawyers, and statesmen. In particular, he wished that the ‘students of ethics and jurisprudence’ would not be led astray by those who ‘deny that the science of morals and laws can be demonstrated’. Instead, he wished to show them that the conclusions of the law of

27 Hemmingsen, Om Naturens Lov, 18. 28 Hemmingsen, Om Naturens Lov, 17. 29 Hemmingsen, Om Naturens Lov, 21.

66 Jensen nature could be demonstrated as well and with as much certainty as those of ‘Euclid’s science’.30 Hemmingsen on Method 4.2 Hemmingsen’s reference to Euclid in claiming to demonstrate the law of nature would earn him the criticism of later historians of the discipline. But this was from the perspective of subsequent, seventeenth-​century changes in the conception of scientific method, and Hemmingsen’s conception of method was not theirs.31 Rather different from later seventeenth-​century conceptions of method, Hemmingsen was more indebted to classical and humanist rhetoric and dialectic, particularly in the guise Melanchthon had given them. As such, Hemmingsen could adopt different methods in different places. In the preface, Hemmingsen mentioned ‘philosophical proof’ as well as the ‘syntheses and analyses of the demonstrations’.32 In the same section, Hemmingsen also said he would adopt as method the Galenic analysis in explicating the law of nature.33 Where the former related to demonstrations, the latter was rather a method of exposition, for it consisted in formulating a comprehensive definition of the law of nature on the basis of which the different characteristics or parts of the definition could be explained. Some years prior Hemmingsen had completed his own work on method, De methodis libri duo. This work gives some further pointers to the methods Hemmingsen adopted in the work, and how he saw them. In De methodis Hemmingsen explained the various kinds of methods and arguments which could be used in philosophy (book one) and theology (book two). In book one, he first gave accounts of the two basic methods, namely the synthetic and the analytic, in general. The first, Hemmingsen explained, proceeded from the simple parts to the complex whole. This was the method Aristotle had adopted in

30

31 32 33

‘Hinc etiam futurum spero ut non amplius Ethicae ac jurisprudentiae studiosi ferant istam quorundam contumeliam qui negant doctrinam de moribus et legibus demonstrari posse. Videbunt enim clarissime non minus legis Naturae conclusiones destitui evidentibus demonstrationibus quam artem Euclidis, quam quidam solam demonstrationibus niti falso contendunt.’ Hemmingsen, Om Naturens Lov, 20. For brief considerations of Hemmingsen’s method, see Scattola, Das Naturrecht, 78; Hutchinson, ‘Introduction. Niels Hemmingsen’; Hutchinson, ‘Divine Law, Naturally’. Neither, however, analyses Hemmingsen’s philosophical argumentation in great detail. ‘philosophica apodixi’, ‘observare syntheses et analyses demonstrationum’ Hemmingsen, Om Naturens Lov, 20. ‘Ut autem certam doctrinae methodum sequamur in hujus rei explicatione visa est nobis commodissima ea quae analysis a Galeno dicitur’ Hemmingsen, Om Naturens Lov, 31.

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the Politics, and which Euclid had used in his geometry.34 The analytic method in general, on the other hand, started from the end or the whole to explain ‘those things which attend to that end or whole’.35 Here, Hemmingsen further informed the reader that ‘my most dear teacher Philipp Melanchthon’ had used this method both in treating religious doctrine methodically as well as in his Philosophiae moralis epitome. Accordingly, Melanchthon, Hemmingsen explained, had started by determining the end of man, namely that he was created to honour God, and then shown how all should refer to that end.36 As we shall see, it was precisely these methods that Hemmingsen adopted himself in De lege naturae. 4.3 Hemmingsen’s Definition of the Law of Nature In De lege naturae, Hemmingsen first started by clarifying the concept of natural law according to the ‘Galenic’ method. He did so by giving a ‘just and complete definition’ and explain its various parts. Natural law, according to Hemmingsen, is ‘the certain knowledge divinely impressed on the minds of men of the principles of knowledge and action, as well as of the conclusions that demonstrably follows from these principles in accordance with the end specific to man. These conclusions reason constructs by necessary consequence from the principles so that man knows, wills, chooses, and does that which is right, and refrains from the contrary, in order to govern human life, to all of which the conscience is a divinely given witness and judge’.37 After a few words on the divine authorship of natural law guaranteeing its authority, dignity, and equity, Hemmingsen proceeded to show the certitude and means of knowing natural law. This was done through a larger discussion of the principles of action, namely will and intellect or cognition. In further explaining how we gain knowledge of the principles of natural law, Hemmingsen made it clear that these principles were not simply present in the 34

Niels Hemmingsen, De methodis libri duo, quorum prior quidem omnium methodorum universalium et particularium, quarum usus est in philosophia brevem ac dilucidam de­­ clarationem: posterior veró ecclesiasten sive methodum theologicam interpretandi, concio­ nandique continet (Rostock: Ludwig Dietz, 1555), fol. Cr. 35 Hemmingsen, De methodis, fol. Cv. 36 Hemmingsen, De methodis, fols C2-​C3r. 37 ‘Lex naturae divinitus impressa mentibus hominum notitia certa principiorum cognitionis et actionis, atque conclusionum ex istis principiis demonstratarum proprio fini hominis congruentium, quas ex principiis necessaria consequentia ad humanae vitae gubernationem extruit ratio, ut homo ea quae recta sunt cognoscat, velit, eligat, agat, vitetque contrariis, quorum omnium et testis et judex conscientia hominibus divinitus est attributa.’ Hemmingsen, Om Naturens Lov, 39.

68 Jensen mind of man. This was signposted by a quotation from Cicero’s Academica on how the mind uses the senses and creates the arts as an aid in cognition.38 So, Hemmingsen explained, human cognition proceeds in two direction: from the senses by way of induction to axioms, and syllogistic conclusions from these axioms by the mind. It was not the case, in Hemmingsen or in Melanchthon, that the precepts of natural law were fully formed and present in the mind. It was only in observing the world around us that the knowledge of the principles were ‘awakened’ so to speak and grasped by the mind.39 Having discussed the ‘mode’ of knowing the principles of natural law,40 Hemmingsen turned to discuss the content or ‘material’ of the practical principles of natural law.41 These were called principles for two reasons: because they are (1) primary, and do not depend on previous demonstrations,42 and (2) self-​evident, which Hemmingsen expressed by saying that they are ‘a light divinely impressed on the human mind’.43 This self-​evidence was furthermore shown by the comparison of contraries, and by the comparison of contrary effects. Hemmingsen further gave as example the principle or axiom that what conserves nature was required by nature. Since the just and the morally good conserves nature, the just and the good were required by nature.44 4.4 God as the End of Man To further explicate that fundamental principle of the law of nature, Hemmingsen then turned to determine the ‘end of man, towards which all the actions of man should be directed’. On this basis he would then propose some further axioms of the law of nature, ‘from which all other true hypotheses about morals are constructed’.45 The end of man, Hemmingsen explained, could be determined in a threefold way. First, by considering the perfect state of man, which was when the soul ruled over the body, reason over the will, and the will over the passions. This 38 Hemmingsen, Om Naturens Lov, 66. 39 Hemmingsen, Om Naturens Lov, 75. 40 Further showing the compatibility of the Platonic, Aristotelian and Reuchlin’s position. 41 Hemmingsen, Om Naturens Lov, 95. 42 Hemmingsen, Om Naturens Lov, 97. 43 Hemmingsen, Om Naturens Lov, 100. 44 Hemmingsen, Om Naturens Lov, 102. 45 ‘Ceterum, quia haec omnia rectius intelleguntur monstrato fine hominis, ad quem omnes actiones hominis referendas esse manifestum est, pauca de fine hominis adjiciam, et axiomata ex Lege Naturae proponam, ex quibus omnes alia hypotheses verae de moribus extruuntur.’ Hemmingsen, Om Naturens Lov, 103.

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would result in the four cardinal virtues, justice, prudence, temperance and courage. Second, in Aristotelian fashion, by considering the faculties specific to man. Since man alone possessed the faculties necessary to search for the truth, choose the good, and live virtuously, these could be said to be his proper end.46 Third and most significantly, by considering the order of things according to which the lower things had the higher things as their end. Since God was the Supreme Being, all actions of man, Hemmingsen argued, should be referred to God, in obeying and honouring Him.47 In light of Hemmingsen’s De methodis, we can see that Hemmingsen here adopted the ‘synthetic’ method: considering the parts first of man, and secondly the world, to determine the end to which they were directed. 5

De lege Naturae as a Philosophical Defence of Confessional Political Thought

Having established the ends of man by examining human nature, Hemmingsen proceeded to deduce rules governing the specific forms or aspects of human life. First, he distinguished between the theoretical and the practical life, to establish that the former should serve the latter. Practical life as a whole had, Hemmingsen argued drawing on the previous conclusions, the purpose of maintaining itself with God as the utmost end.48 Hemmingsen thus entirely adopted Melanchthon’s position that God was the foremost aim –​finis principalis –​of the duties of moral philosophy flowing from the law of nature. However, in determining the more specific precepts and duties –​the fines minus principales or externales, as Melanchthon called them –​ Hemmingsen gave his theory of natural law a more ‘Lutheran’ slant. While he adopted the conventional Aristotelian distinction between the theoretical and practical life, he asserted without further proof that the latter consisted of the domestic, the political, and the spiritual estates. This was the ‘Lutheran’ doctrine of the three estates. This doctrine of the ‘three estates’ was a confessionally specific conception of the social and political order. While it did not play any real role in Melanchthon’s moral philosophical works,49 it had been fundamental to

46 Hemmingsen, Om Naturens Lov, 114. 47 Hemmingsen, Om Naturens Lov, 118f. 48 Hemmingsen, Om Naturens Lov, 123. 49 Although it did figure in his theological works, see Witte, Law and Protestantism, pp. 122f.

70 Jensen Luther’s social and political thought, and became a staple in Lutheran political theology.50 Furthermore, as we saw above, Skat Sommer has argued it became central to the social thought of post-​Reformation Danish confessional thought, especially as formulated by Hemmingsen. In De lege naturae too, Hemmingsen offered a philosophical account and defence of the Lutheran three estates-​ doctrine to establish that practical life may be divided into the economic, the political and the spiritual estates. In the case of each state, Hemmingsen adopted a simple argument based on the axiom introduced previously, that the law of nature requires whatever preserves nature. On this basis, he could then introduce the precept that the law of nature requires whatever conserves the political, economic and spiritual estates. Since the conservation of the economic and political estates required relations of superiority and submission, rule and subjection, these were, he argued, required by the law of nature. Further, loving marriage between husband and wife, procreation and education of children, and the obedience of children towards their parents were all commanded by natural law.51 In the same way, he could derive the various Aristotelian virtues. Turning to political life, Hemmingsen first observed that the end of political life was a tranquil and peaceful state achieved through political actions considering God as the ultimate end. Drawing again on the fundamental axiom, Hemmingsen thus derived the precept that ‘whatever preserves the political state is commanded by the law of nature’. Since this could not be done without an order of rulers and ruled, it followed that government and subjection was commanded by the law of nature.52 Hemmingsen then went on to adduce numerous quotes from classical authors such as Plato, Homer, Xenophon and others to illustrate the duties and rights of the rulers. A Philosophical Argument for the Ruler’s Duty to Uphold True Religion Finally, Hemmingsen used the claim that political life should have God as its utmost end to argue that the ruler may not command and the subject not obey anything contrary to God, that is, divine and natural law. This point was illustrated by Socrates’s refusal to flee Athens and Sophocles’s Antigone.53 Since the foremost purpose of the economic and political estates were God, and

5.1

50

For the three estates doctrine in Lutheran ‘political theology’, see the works cited above in footnotes 4 and 17. 51 Hemmingsen, Om Naturens Lov, 125. 52 Hemmingsen, Om Naturens Lov, 130. 53 Hemmingsen, Om Naturens Lov, 139.

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since the proper aim of the spiritual estate was to know, worship and fear God, the economic and political estates were therefore subordinated the spiritual estate. To transgress against this was to invert the order of nature and ‘call God’s punishment upon oneself’.54 It was concerning the status spiritualis that Hemmingsen introduced the only significant qualification concerning the ability of reason to determine the law of nature. For man –​fallen man –​could not by himself fully understand the duties towards God. ‘Thus far human reason has proceeded rightly. But when it on the basis of the conclusion of the given demonstration attempts to derive actions appropriate for this [spiritual] life, it completely misses the right way’.55 Hemmingsen did not describe explicitly what this error consisted in, but rather proceeded to show what reason could in fact say, evidenced by the many sentences of the pagan philosophers and poets concerning the ‘unity of god, creation, providence and worship’.56 According to Hemmingsen, it was when this insight –​that humans should worship God –​had to be converted into action that non-​Christians erred. As such, Christians should thank God that he had revealed his word, teaching salvation and a true way of worshipping God. Although Hemmingsen might seem, here, to depart from good, evangelical teaching on what reason could say of God, this was no more than one of emphasis. In fact, Hemmingsen rather closely followed Melanchthon here, even if he was perhaps not as clear in his writing. In his Philosophiae moralis epitomes, Melanchthon had repeatedly emphasised that moral philosophy could not determine the nature of true obedience to God in so far as this consisted in internal obedience, and neither could fallen man exercise this. It was only the revealed word of God, the gospel, which showed the nature of true obedience, and only a true Christian could exercise this obedience. This was precisely what characterised a Christian life, the ‘true virtues’ of Christian doctrine.57 We might say, then, that it was the specific characteristic, the ‘proprium’, of the spiritual estate, in contrast with the domestic and the political, that it concerned itself directly with knowledge and worship of God. It was this that accorded it higher status within practical life: it concerned the finis principalis of human practical life directly. The other two estates were concerned with 54 Hemmingsen, Om Naturens Lov, 141. 55 ‘Hucusque humana ratio recta progreditur. Verum cum ex conclusione positae demonstrationis actiones huic vitae congruentes extruere molitur, tota errat via.’ Hemmingsen, Om Naturens Lov, 144. 56 Hemmingsen, Om Naturens Lov, 149. 57 See, for instance, Melanchthon, Philosophiae moralis epitomae, pp. 2, 6, 64f.

72 Jensen the fines minus principales, only indirectly with the finis principalis. All estates, as part of the practical life, had God as their final end. But only the spiritual estate concerned man’s actions in society towards God specifically: to know Him, fear, and glorify Him. Just as the fact that God was the end of man could, as we saw, be established philosophically from the law of nature, so could this specific end of the spiritual estate, through the fundamental axiom, that the law of nature commands whatever preserves the estates of practical life. This was proven further on Aristotelian grounds: knowing and worshipping God is a virtue, an act of the highest part of man, the intellect, directed towards the highest object, God. These elements, God as the finis principalis for man’s worldly life, conceptualised through the doctrine of the three estates, and subordinating the domestic and political estates to the spiritual, provided the means for Hemmingsen’s philosophical argument that the law of nature imposed the duty to uphold true religion on the magistrate. Only the exact way of knowing and worshipping God could not be established philosophically, but was rather revealed to man by God, and propounded by theologians such as Hemmingsen himself. This was, in other words, a reformulation of Melanchthon’s arguments for the cura religionis of the magistrate, the ruler as the principuum membrum ecclesiae and the guardian of both tables of the Decalogue.58 6

Conclusion

That Niels Hemmingsen’s De lege naturae stood squarely in the Philippist strand of Protestant theological and philosophical thought is well established. It is also well known that Hemmingsen sought to explain the law of nature solely on the basis of reason. This chapter has sought to clarify the relationship between these two, and to show that how Hemmingsen developed the Philippist philosophical programme should qualify the prevailing characterisation of Lutheran as well as Philippist political thought. It has also shown how this at the same time informed a philosophical defence for a confessional political order based on natural law. 58

For a thorough discussion of the development of Melanchthon’s thought on the cura religionis, see James M. Estes, ‘The Role of Godly Magistrates in the Church: Melanchthon as Luther’s Interpreter and Collaborator’, Church History, 67/​3 (1998), pp. 463–​83; James M. Estes, Peace, Order, and the Glory of God: Secular Authority and the Church in the Thought of Luther and Melanchthon, 1518–​1559 (Leiden: Brill, 2005). See also Jensen, A Humanist in Reformation Politics, pp. 101f., 115f., 122.

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First, Hemmingsen’s endeavour was to treat the law of nature on the basis of reason and philosophically was premised on Melanchthon’s theological distinction between Gospel and Law, and the concomitant definitions of moral philosophy and natural law. But this should not obscure the fact that to Melanchthon and Hemmingsen, moral philosophy (ethics, politics) and law were disciplines in their own right independent of theology, and which were programmatically based on reason. This chapter has also attempted to show that Hemmingsen followed his (humanist) methodological programme to a much greater degree than he has been credited with. Hemmingsen, then, worked to develop a philosophical theory of natural law on the basis of reason and independent of Scripture, to serve as a foundation for ethics, law and politics. At the same time, however, one must also recognise the more confession-​specific characteristics of this theory of natural law. These can be found particularly in the very construction of the concrete determination of its precepts governing social and political life as organised around the three estates. Hemmingsen’s theory of natural law also illustrates, however, that these confessional or theological characteristics did not reduce this theory, or Philippist moral philosophy more generally, to a ‘practical theology’ or a ‘political theology’. Although Melanchthon in some of his philosophical and in particular theological works was clear on the limits of reason after the Fall, in ways which could arguably tend to undermine the independent character of moral philosophy, Hemmingsen’s work on the law of nature forcefully reminds us of this other characteristic of Philippist moral philosophy. Hemmingsen’s discussion of the law of nature as the foundation for ethics, politics and law was a philosophical endeavour. This Philippist programme contrasted sharply with contemporary scholastic works, for instance by Francisco Vitoria, where similar topics were discussed explicitly as part of theology.59 Hemmingsen’s work also clarifies the relationship between the law of nature and the Decalogue. Where scholars have tended to see both Melanchthon and Hemmingsen as deriving the laws of nature from the Decalogue, this chapter has sought to show how, to Melanchthon as well as Hemmingsen, the usefulness of the Decalogue as a summary of natural law depended on it corresponding with what reason could in fact determine on its own accord. In other words, theologians (and philosophers) had, as Hemmingsen did, first to provide a philosophical account of the law of nature, in order to then, second, 59

See, for instance, Vitoria who explicitly discusses civil power as a topic falling under the all-​encompassing universal theology, Francisco de Vitoria, Political Writings, ed. by Anthony Pagden and Jeremy Lawrance (Cambridge University Press, 1991), p. 3.

74 Jensen demonstrate how the commandments of the Decalogue accorded with this theory of natural law (a part of the work we have not been able to discuss here). This philosophical demonstration did not take away from the divine origin of natural law, or the more explicitly divine authority of the Decalogue, rather it underscored its universality. It emphasised how a Christian ruler, and not just the Israelite kings, were obliged to rule with the sword in one hand and the Decalogue in the other. Finally, Hemmingsen’s work shows the centrality of a philosophical programme to ‘Lutheran’ confessional ordera. Recent scholarship has arged extensively that the confessional Lutheran ‘politica christiana’ was developed in theological works by ‘political theologians’. But this confessional political order was not only defended though a political theology based on Scripture. As the case of Hemmingsen shows, philosophical positions were developed to serve these confessional polities. Hemmingsen had shown philosophically how the law of nature established the three estates in practical, or political, life and required the ruler to safeguard true religion and the spiritual estate. This goes some way to explain how and why the perceived secularising Protestant natural law theories of Hugo Grotius and Samuel Pufendorf and others in the seventeenth century were met not just with vehement theological critiques, but equally with philosophical ones.60

Select Bibliography



Primary Literature

Hemmingsen, Niels, De methodis libri duo, quorum prior quidem omnium methodorum universalium et particularium, quarum usus est in philosophia brevem ac dilucidam declarationem: posterior veró ecclesiasten sive methodum theologicam interpretandi, concionandique continet. Rostock: Dietz, 1555. 60 See Hans-​ Peter Schneider, Justitia universalis: Quellenstudien zur Geschichte des ‘Christlichen Naturrechts’ bei Gottfried Wilhelm Leibniz (Frankfurt am Main: Vittorio Klostermann, 1967). Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Europe (Cambridge: Cambridge University Press, 2001). For a powerful exposition of the confessional entanglements of early modern philosophy, see Hunter, Ian. ‘The University Philosopher in Early Modern Germany’, In The Philosopher in Early Modern Europe: The Nature of a Contested Identity, edited by Conal Condren, Stephen Gaukroger, and Ian Hunter (Cambridge: Cambridge University Press, 2009), p. 35–​65. For Danish cases, see Mads Langballe Jensen, ‘Contests about Natural Law in Early Enlightenment Copenhagen’, History of European Ideas 42, no. 8 (16 November 2016): 1027–​41; Mads Langballe Jensen, ‘Libertas Philosophandi and Natural Law in Early Eighteenth Century Denmark-​Norway’, Intellectual History Review 30/​2 (2020), pp. 209–​31.

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Hemmingsen, Niels, Om Naturens Lov, trans. by Richard Mott, 3 vols. København: Øresund, 1991. Hemmingsen, Niels, On the law of nature: a demonstrative method, trans. and ed. By E. J. Hutchinson, Grand Rapids, Michigan: clp Academic, 2018. Hemmingsen, Niels, Opuscula theologica, in unum volumen collecta, & per classes digesta: additis variis indicibus, notis, & praefationibus necessariis. Genevae: Excudebat Eustathius Vignon, 1586. Melanchthon, Philipp, Loci communes theologici recens collecti & recogniti. Straßburg: Johann Albrecht, 1536. Melanchthon, Philipp, Philosophiae moralis epitomae libri duo emendati & aucti. Strassburg: Kraft Müller, 1540. Melanchthon, Philipp, Philosophiae moralis epitome, Philippo Melanchthone autore, Nunquam antea excusa. Straßburg: Müller, Kraft, 1538. Vitoria, Francisco de, Political Writings, ed. by Anthony Pagden and Jeremy Lawrance. Cambridge University Press, 1991.



Secondary Literature

Dansk biografisk Lexikon tillige omfattende Norge for Tidsrummet 1537–​1814, ed. by Carl Frederik Bricka, Kjøbenhavn: Gyldendalske Boghandels Forlag, 1887. Estes, James M., Peace, Order, and the Glory of God: Secular Authority and the Church in the Thought of Luther and Melanchthon, 1518–​1559. Leiden: Brill, 2005. Estes, James M., ‘The Role of Godly Magistrates in the Church: Melanchthon as Luther’s Interpreter and Collaborator’, Church History, 67 (1998), pp. 463–​83. Frank, Günter, ‘The Reason of Acting: Melanchthon’s Concept of Practical Philosophy and the Question of the Unity and Consistency of His Philosophy’, in Moral Philosophy on the Threshold of Modernity, ed. by Jill Kraye and Risto Saarinen. Dordrecht: Kluwer Academic, 2005. pp. 217–​33. Grane, Leif, ‘Melanchthons prägender Einfluss auf die Reformation in den skandinavischen Ländern’, in Melanchthon und Europa: Skandinavien und Mittelosteuropa, ed. by Günter Frank, Kees Meerhoff, and Martin Treu, Melanchthon-​Schriften der Stadt Bretten. Stuttgart: Jan Thorbecke Verlag, 2001. pp. 11–​26. Hunter, Ian, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Europe. Cambridge: Cambridge University Press, 2001. Hunter, Ian. ‘The University Philosopher in Early Modern Germany’, in The Philosopher in Early Modern Europe: The Nature of a Contested Identity, edited by Conal Condren, Stephen Gaukroger, and Ian Hunter. Cambridge: Cambridge University Press, 2009, 35–​65. Hutchinson, E. J., ‘Divine Law, Naturally: Lex Naturae and the Decalogue in Two Works of Niels Hemmingsen’, in For Law and for Liberty: Essays on the Trans-​Atlantic Legacy of Protestant Political Thought, ed. by W. Bradford Littlejohn. Davenant Press, 2016. pp. 1–​19.

76 Jensen Hutchinson, E. J., ‘Introduction. Niels Hemmingsen (1513–​1600) and the Development of Lutheran Natural-​Law Teaching’, Journal of Markets & Morality, 17 (2015), pp. 595–​617. Jensen, Mads Langballe, A Humanist in Reformation Politics: Philipp Melanchthon on Political Philosophy and Natural Law. Leiden: Brill, 2020. Jensen, Mads Langballe, ‘Contests about Natural Law in Early Enlightenment Copenhagen’. History of European Ideas, 42/​8 (16 November 2016): 1027–​41. Jensen, Mads Langballe, ‘Libertas Philosophandi and Natural Law in Early Eighteenth Century Denmark-​Norway’. Intellectual History Review, 30/​2 (2020): 209–​31. Kaltenborn, Carl von, Die Vorläufer des Hugo Grotius auf dem Gebiete des Ius Naturae et Gentium sowie der Politik im Reformationszeitalter. Leipzig: G. Mayer, 1848. Kaufmann, Thomas, ‘Freedom and Apocalyptic Thinking in Early Modern Lutheranism’, in Freedom and the Construction of Europe, ed. by Quentin Skinner and Martin van Gelderen, 2 vols. Cambridge: Cambridge University Press, 2013. i, pp. 11–​20. Scattola, Merio, Das Naturrecht vor dem Naturrecht: zur Geschichte des ‘ius naturae’ im 16. Jahrhundert. Tübingen: Niemeyer, 1999. Schneider, Hans-​Peter, Justitia universalis: Quellenstudien zur Geschichte des ‘Christlichen Naturrechts’ bei Gottfried Wilhelm Leibniz. Frankfurt am Main: Vittorio Klostermann, 1967. Schorn-​ Schütte, Luise, ‘Kommunikation über Herrschaft: Obrigkeitskritik im 16. Jahrhundert’, in Ideen als gesellschaftliche Gestaltungskraft im Europa der Neuzeit: Beiträge für eine erneuerte Geistesgeschichte, ed. by Lutz Raphael and Heinz-​Elmar Tenorth (München: R. Oldenbourg Verlag, 2006), pp. 71–​108. Schorn-​Schütte, Luise, ‘Obrigkeitskritik und Widerstandsrecht. Die politica christiana als Legitimitätsgrundlage’, in Aspekte der politischen Kommunikation im Europa des 16. und 17. Jahrhunderts. Politische Theologie, Res Publica, Verständnis, konsensgestützte Herrschaft, ed. by Luise Schorn-​Schütte. München: R. Oldenbourg Verlag, 2004. Schwarz Lausten, Martin, Niels Hemmingsen: storhed og fald. København: Anis, 2013. Skat Sommer, Mattias Skat, ‘Niels Hemmingsen and the Construction of a Seventeenth-​ Century Protestant Memory’, Journal of Early Modern Christianity, 4 (2017), pp. 135–​160. Skat Sommer, Mattias, Envisioning the Christian Society. Niels Hemmingsen (1513–​1600) and the Ordering of Sixteenth-​Century Denmark. Tübingen: Mohr Siebeck, 2020. Stiening, Gideon, ‘Notitiae principiorum practicorum: Melanchthons Rechtslehre zwischen Machiavelli und Vitoria’, in Der Philosoph Melanchthon, ed. by Günter Frank and Felix Mundt. Walter de Gruyter, 2012. pp. 115–​46. Weiss, Matthias, ‘„… weltliche hendel werden geistlich.“ Zur politica christiana des 16. Jahrhunderts’, in Ideen als gesellschaftliche Gestaltungskraft im Europa der Neuzeit: Beiträge für eine erneuerte Geistesgeschichte, ed. by Lutz Raphael and Heinz-​Elmar Tenorth. München: R. Oldenbourg Verlag, 2006. pp. 109–​24. Witte, John, Law and Protestantism: The Legal Teachings of the Lutheran Reformation. Cambridge: Cambridge University Press, 2002.

­c hapter 4

Between Scripture and Stoicism

The Duty of Intervention in the Calvinist Monarchomachs Alberto Clerici In a decisive passage of the second volume of his Foundations of modern political thought, Quentin Skinner famously remarked that the Huguenot Monarchomachs made an ‘epoch-​making move … from a purely religious theory of resistance, depending on the idea of a covenant to uphold the laws of God, to a genuinely political theory of revolution, based on the idea of a contract which gives rise to a moral right (and not merely a religious duty) to resist any ruler who fails in his corresponding obligation to pursue the welfare of the people in all public acts’. And a few pages later, he concludes that the revolutionary Calvinists managed to articulate a ‘fully populist as well as completely secularized theory of the right to resists’, whose main arguments were drawn from Roman law, medieval jurisprudence, Canonists and Renaissance and scholastic philosophy.1 Skinner’s remarks, directed against Max Weber’s thesis about the special nature of Calvinism, revived by Michael Walzer’s Revolution of the Saints (1965), bring into the fore the much-​debated question of the primacy of politics or religion in the literature of the seventeenth-​century Wars of Religion, to which British and especially French historiography has been very sensitive.2 Naturally, the rise of secularization or, better, the decreasing 1 Q. Skinner, The Foundations of modern political thought (Cambridge: Cambridge University Press, 1978), vol. 2, pp. 335, 339. 2 The European Wars of Religion: An Interdisciplinary Reassessment of Sources, Interpretations, and Myths, ed. by W. Palaver, H. Rudolph and D. Regensburger (Abingdon: Routledge, 2016). For England see England’s Wars of Religion, Revisited, ed. by C.W.A. Prior and G. Burgess (Aldershot: Ashgate, 2011). For the French case, trying to blend the different approaches to the Wars of Religion in the works of Arlette Jouanna and Denis Crouzet, see especially the 2004 thematic issue of the Nouvelle revue du seizième siècle, dedicated to ‘Metaphysique et politique de l’obéissance dans la France du XVIe siècle’. For the Dutch case see M. van Gelderen, The political thought of the Dutch Revolt 1555–​1590 (Cambridge: Cambridge University Press, 1992) and, for a comparative perspective, P. Benedict, Reformation, revolt and civil war in France and the Netherlands 1555–​1585 (Amsterdam: Royal Netherlands Academy of Arts and Sciences, 1999); for Germany, see L. Schorn-​Schütte, ‘Politica Christiana in the Sixteenth and Seventeenth Centuries’, in Politics, Law, Society, History and Religion in the ‘Politica’ (1590s-​ 1650s), ed. by R. von Friedeburg (Zurich-​New York, Olms Verlag, 2013), pp. 59–​86.

78 Clerici importance of an exclusively religious framework in Early Modern political discourse and the broadening of arguments and sources in the relevant literature, has been a tortuous and non-​linear path, that is still controversial and needs further investigation.3 Following those scholarly outcomes that suggest to resist the temptation to see the political thought framed during the Wars of Religion as completely secularized or, conversely, still dominated by a religious dimension, I will try to trace the coexistence and use of ‘sacred’ and ‘secular’ –​ or ‘pagan’ –​sources in a few texts associated with the group of authors usually known as ‘Calvinist Monarchomachs’,4 in relation to a specific issue, namely the right or, better, the duty of Christian princes (and possibly even private individuals) to ‘render assistance’, as the famous Vindiciae contra tyrannos (1579) put it, ‘to subjects of other princes who are being persecuted on account of pure religion, or oppressed by manifest tyranny’.5 I will try to elucidate how the problem of what we now call ‘humanitarian intervention’,6 or ‘responsibility to protect’,7 was raised in some of the most influential monarchomach treatises, by the fusion of scriptural and Stoic elements in their treatment of the subject,8 and hence their specificity in respect to Calvin himself, and their 3

4

5 6 7 8

On the need to ‘take seriously’ religion in political thought see Seeing Things Their Way: Intellectual History and the Return of Religion, ed. by A. Chapman, J. Coffey, B.S. Gregory (Notre Dame: University of Notre Dame Press, 2009); on the uses of scripture in Early Modern political thought, specifically from the point of view of resistance, see, Politeia biblica, ed. by L. Campos Boralevi and D. Quaglioni, special thematic issue of Il Pensiero Politico, xxxv, 2002; Religious Obedience and Political Resistance in the Early Modern World: Jewish, Christian and Islamic Philosophers Addressing the Bible, ed. by L. Simonutti (Turnhout: Brepols, 2014). D. Crouzet, ‘Calvinism and the Uses of the Political and the Religious (France, ca. 1560-​ca. 1572)’, in Reformation, Revolt and Civil War, ed. by Benedict, pp. 99–​113 ; Et de sa bouche sortait un glaive: les monarchomaques au XVIe siècle, ed. by P.-​A. Mellet (Géneve: Droz, 2006); P.-​A. Mellet, Les traités monarchomaques. Confusion des temps, résistance armée et monarchie parfaite, 1560–​1600 (Genève : Droz, 2007). Vindiciae, contra tyrannos: or, Concerning the legitimate power of a prince over the people, and of the people over a prince, ed. by G. Garnett (Cambridge: Cambridge University Press, 1994), quaestio iv, p. 173. The Routledge Companion to Humanitarian Action, ed. by R. Mac Ginty and J.H. Peterson (Abingdon: Routledge, 2015). The Oxford Handbook of the Responsibility to Protect, ed. by A.J. Bellamy and T. Dunne (Oxford: Oxford University Press, 2016). The contribution of the ‘Calvinist International’ to the history of humanitarian intervention was first recognized by the French legal historian Adhémar Esmein: see A. Esmein, ‘La théorie de l’intervention internationale chez quelques publicistes français du XVIe siècle’, Nouvelle revue historique, de droit français et étranger, 24 (1900), pp. 558–​566. More recently, the subject has been touched upon by Wilhelm Grewe, although Grewe incorrectly confers an exclusive ‘religious’ character to the doctrine of intervention in the Monarchomachs, Gentili and Grotius, failing to notice the ‘secular’ side of it. See W.G. Grewe, The Epochs

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affinity to the later natural law tradition embodied by Alberico Gentili and Hugo Grotius.9 My task will thus be to establish a possible link between the Calvinist monarchomach theories of the late sixteenth century, as expressed by the most famous and widespread treatises, and at least a part of the so-​called ‘Protestant school of modern natural law’ –​I call it this way very loosely –​from Grotius to Locke and Vattel. I am especially speaking here not so much of the general history of natural law, but, in particular, of the contribution of the Calvinist Monarchomachs to the development of the Law of Nations. This is a chapter of the history of ius gentium that in my opinion needs to be highlighted more comprehensively, given the fact that –​with few exceptions –​most histories of international thought simply ignore the Monarchomachs, ‘jumping’ directly from the Spanish Scholastics and the debates over the New World to the so-​ called ‘founders’ of modern international law, namely Balthasar Ayala, Alberico Gentili and Hugo Grotius,10 notwithstanding the fact that monarchomach thought, best summarized in the famous and widely read pamphlet Vindiciae

9 10

of International Law (Berlin: De Gruyter, 2001, 1st ed. in German 1984), pp. 177–​182. In the last decade, the theme has been studied by David Trim in a number of contributions. See especially D.J.B. Trim, ‘ “If a prince use tyrannie towards his people”: interventions on behalf of foreign populations in early-​modern Europe’, in Humanitarian Intervention. A History, ed. by D.J.B. Trim and B. Simms (Cambridge: Cambridge University Press, 2011), pp. 29–​66; D.J.B. Trim, ‘Intervention in European history, c1520–​1850’, in Just and Unjust Military Intervention: European Thinkers from Vitoria to Mill, ed. by S. Recchia, J. Welsh (Cambridge: Cambridge University Press, 2013), pp. 21–​47; D.J.B. Trim, ‘ “Put all to the sword”. The effects of Reformation on the ethics of war in sixteenth-​century Germany and England’, in Sister Reformations II/​Schwesterreformationen II: Reformation and ethics in Germany and in England; Reformation und Ethik in Deutschland und in England, ed. by D. Wendebourg and A. Ryrie. (Tübingen: Mohr Siebeck, 2014), pp. 271–​298. However, like Grewe, Trim fails to notice the importance of the Stoic revival and arguments in the Monarchomachs’ justification of foreign intervention. The same holds true for A. von Ungern-​Stenberg, ‘Religion and Religious Intervention’, in The Oxford Handbook of the History of International Law, ed. by B. Fassbender and A. Peters (Oxford: Oxford University Press, 2012), pp. 294–​316, and Alexis Heraclides in Humanitarian Intervention in the Long Nineteenth Century: Setting the Precedent, ed. by A. Heraclides and A. Dialla (Manchester: mup, 2015), pp. 18–​23. The best treatment of the subject so far, in my opinion, is that of L. Scuccimarra, Proteggere l’umanità. Sovranità e diritti umani nell’epoca globale (Bologna: Il Mulino, 2016), ch. 5. Grotius and the Stoa, ed. by. H. Blom and L. Winkel (Assen: Van Gorcum, 2004). Recent examples are The Oxford Handbook of the History of International Law, cit.; S.C. Neff, Justice Among Nations. A History of International Law (Cambridge, MA: Harvard University Press, 2014). An exception to this trend is System, Order, and International Law. The Early History of International Legal Thought from Machiavelli to Hegel, ed. by S. Kadelbach, T. Kleinlein and D. Roth-​Isigkeit (Oxford:Oxford University Press, 2017), which includes for example a fine contextualized discussion on Johannes Althusius.

80 Clerici contra tyrannos of 1579, lies behind and inside those ‘classics’, in the sense that they share the same historical context –​the international background of the Eighty Years’ War or Dutch Revolt –​and the same intellectual environment, as far as political thought is concerned, that is the struggle between absolutism and constitutionalism occasioned by the fall of the medieval ideal of Respublica Christiana. Indeed, regardless of episodic accusation of ‘Biblicism’ levelled at the Monarchomachs (especially the ‘Marian exiles’ Ponet, Knox and Goodman),11 for them and even more so for the Huguenots, the importance is widely recognized of non-​scriptural sources of knowledge and authorities, notably the language of natural law. David VanDrunen has rightly spoken of a ‘coordination of natural law and Scripture’ in Calvinist resistance treatises, in which ‘natural law supplements and illustrates the arguments from Scripture and even at times shapes the biblical exegesis itself’.12 This should not be surprising, given the fact that these authors were all humanists with an interdisciplinary education, starting of course with Calvin himself. Van Drunen’s research focuses on the doctrine of the double covenant, unquestionably one of the key features of monarchomach thought, but he has little to say about the role of natural law in conjunction with the law of nations, partially as a result of overlooking the Stoic and Ciceronian influence in Early Modern Calvinism, his main purpose being the analysis of the continuities and discontinuities between reformed natural law and the medieval scholastic notion of natural law. In the same direction, but again with the same unawareness, John Witte recognized that Early Modern Calvinist theologians contributed to the development of new theoretical frameworks that eventually widened the traditional rights formulations into a set of potentially universal claims.13 Another noteworthy attempt to reconstruct the link between ‘natural law and Calvinist political theory’, that of L. S. Koetsier, has the merit of treating the subject in a comprehensive way, even if sometimes not sufficiently sensitive to the conceptual alterations and adaptations in the language of ius naturale, as well as to the differences and nuances between authors broadly defined as ‘Calvinists’. But while Van Drunen referred, as we have seen, to the ‘coordination of natural law and scripture’ in the Monarchomachs, Koetsier seems to arrive at a different conclusion, stating 11

See the discussion in D. VanDrunen, Natural Law and the Two Kingdoms. A Study in the Development of Reformed Social Thought (Grand Rapids-​Cambridge: Eerdmans, 2010), pp. 124–​128. 12 VanDrunen, Natural Law and the Two Kingdoms, pp. 128–​132. 13 J. Witte, The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (Cambridge: Cambridge University Press, 2007).

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that ‘Calvin’s emphasis upon the political duties of obedience (based on scripture) as well as resistance (based on natural law) … complicates an attempt to define Calvinist political theory’,14 thus missing precisely the main problem of Monarchomachs, that of elaborating a theory of ‘permissible’ or ‘lawful’ resistance without denying the need to obey authorities ordained by God. Naturally, it can be misleading to refer to ‘natural law’ and ‘scripture’ as two different and opposite traditions, sets of arguments and values for political thinking, as for many Early Modern authors –​Protestants as well as Catholics –​ the ultimate source of both was God, and violations of the Decalogue were often considered infringements of both divine and natural law. The difficulty arises when dealing with the modalities in which Early Modern political thought conceived classical, ‘pagan’ sources of the law of nature,15 that is the Stoic and Roman notion of ius naturale, which either conceived not God, but reason as the ultimate source or, following the definition of natural law given by Ulpian in the Corpus iuris civilis,16 affirmed that natural precepts were shared by men and animals alike.17 And, as far as the law of nations is concerned, a similar difficulty arises from the potentially different outcomes of the universality and applicability of precepts of natural law whether considered, for example, from a ‘Christian’ or a Stoic perspective,18 or, as already stated, from the point of view of secularization.19 14 15

16 17

18 19

L.S. Koetsier, Natural Law and Calvinist Political Theory (Victoria: Trafford, 2004), p. 3. On the history of the law of nature the bibliography is of course immense. I have found particularly stimulating A. Passerin d’ Entrèves, Natural Law: an Introduction to Legal Philosophy (Abingdon-​New York: Routledge 2017 [1951]); M.B. Crowe, The Changing Profile of the Natural Law (The Hague: Nijhoff, 1977); R. Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979); K. Haakonssen, Natural Law and Moral Philosophy. From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University. Press, 1996); B. Tierney, The Idea of Natural Rights (Grand Rapids-​Cambridge: Eeerdmans, 1997); The Threads of Natural Law: Unravelling a Philosophical Tradition, ed. by. F.J. Contreras (Dordrecht-​ Heidelberg-​ New York-​ London: Springer, 2013); The Cambridge Companion to Natural Law Jurisprudence, ed. by G. Duke, R.P. George (Cambridge: Cambridge University Press, 2017). Dig. 1.1.1.3. M. C. Nussbaum, foreword to M. Schofield, The Stoic Idea of the City (Chicago: The University of Chicago Press, 1999), p. xii; and, for the crucial case of Grotius, B. Straumann, Roman Law in the State of Nature: The Classical Foundations of Hugo Grotius’ Natural Law (Cambridge: Cambridge University Press, 2015). L. Scuccimarra, I confini del mondo. Storia del cosmopolitismo dall’Antichità al Settecento (Bologna: Il Mulino, 2006); Y. C. Zarka, Refonder le cosmopolitisme (Paris: Presses universitaires de France, 2014), pp. 43–​67. K. Haakonssen, ‘Early Modern Natural Law Theories’, in The Cambridge Companion to Natural Law Jurisprudence, pp. 76–​102.

82 Clerici I will now try to explore this problematic relationship between Scripture, natural law and the law of nations in a few relevant monarchomach texts produced in the hottest phase of the Wars of Religion, by turning to the increasingly discussed issue of intervention on behalf of peoples oppressed in their bodies or their souls by a ‘tyrant’, a major theme especially –​but not exclusively –​in the ‘Calvinist international’.20 I would like to show how, in this body of sources, in the justification of such interventions, scriptural sources were gradually coupled with Ciceronian Stoicism and natural law, with a special emphasis on the notion of societas hominum, which ultimately introduced an a-​confessional and ‘universal’ dimension to their thought, without completely replacing traditional authorities and the Christian viewpoint.21 In his massive study of the doctrine of tyrannicide from antiquity to our days, Mario Turchetti has called this ‘right of interference’ a ‘relatively new problem’,22 but recent scholarship has excavated the remote origins of the debate as a specific part of the just war theory.23 Certainly, as Wilhelm Grewe has argued, the quintessential ‘openness’ of medieval polities assured that intervention was not seen as very problematic at a theoretical level, when a clear separation of a foreign ‘outside’ from a domestic ‘inside’ was lacking.24 Restraints for entitlement to intervene were thus linked to the just war doctrine, that is to the concepts of just cause and right intention. But with the emergence of (proto-​) states or at least the emergence of the language of absolutism, intervention did

20 M. Prestwich, International Calvinism, 1541–​ 1715 (Oxford: Clarendon Press, 1985); V. Larminie, Huguenot Networks, 1560–​1780: The Interactions and Impact of a Protestant Minority in Europe (Abingdon-​New York: Routledge, 2018). According to Mellet, the vast majority of monarchomach propaganda could be described as ‘a vast record of pleas for foreign help’ (un vaste ensemble d’appels à l’étranger). Cfr Mellet, Les traités monarchomaques, p. 169. 21 The question of religion vs secularism in Early Modern natural law theories is, in my opinion, very well summarized by K. Haakonssen, Early Modern Natural Law Theories, p. 76: ‘In the most general perspective, the loss of Christian unity and the subsequent religiously based strife was an important spur to the search for a community of values that was not dependent upon any particular religious confession. This has often led to the characterization of Early Modern natural law as ‘secular’, but this is a misleading simplification inasmuch as most of the theories in question remained within some sort of religious framework. It is here necessary to distinguish between the contemporary intention and meaning and the long-​term effects of natural law’. 22 M. Turchetti, Tyrannie et tyrannicide de l’Antiquité à nos jours (Paris: Presses universitaires de France, 2001), p. 441. 23 See above, note 8. 24 Grewe, Epochs of International Law, p. 176.

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become increasingly problematic, but always remained a possibility, in certain cases, even for so-​called ‘absolutists’ like Jean Bodin and Alberico Gentili.25 Indeed, without going too far in the distinction between a ‘Scholastic’ and a ‘humanist’ approach to the law of nations,26 on the issue of intervention we can reasonably see a difference between the treatment of defensio innocentium in the writings of, say, Francisco de Vitoria,27 and that of the Calvinist Monarchomachs. This diversity can be described in terms of sources and education, but also in terms of the different historical context: the Monarchomachs were first and foremost involved in the European Wars of Religion, and it is not a coincidence that the most relevant texts dealing with the problem of foreign action against ‘tyrants’ were published in the aftermath of the Massacre of St. Bartholomew’s Day (1572).28 It is generally assumed that the right to resist, in Calvinist monarchomach literature, took the shape of either the ‘private law’ theory (based on self-​ defence) or the ‘constitutional’ version focused on the role of ‘inferior magistrates’.29 Foreign intervention, conceived as another possible form of resistance against tyranny, has been somehow neglected by historians, but it certainly acquired some relevance, and not only in Huguenot propaganda. In reconstructing the sources and rhetorical strategies used to justify intervention in a few significant monarchomach pamphlets, it is my intention to reveal a certain 25

26 27 28 29

R. Tuck, ‘Grotius, Hobbes and Pufendorf on humanitarian intervention’, in Just and Unjust Military Intervention, pp. 96–​112. There is indeed some debate on the correctness of the label ‘absolutist’ as referred to Bodin and Gentili, but I cannot develop further here the topic. For example, intervention is treated in a very different manner by Gentili and his contemporary Balthasar Ayala, also generally defined as ‘absolutist’. While Gentili –​who was justifying the English expedition in the Netherlands –​made intervention a pillar of his international thought, Ayala –​who defended Spain –​strongly opposed that idea (except for a vague traditional appeal to the Pope as arbiter of conflicts). See R. Kubben, ‘«We should not Stand Beside … ». International Legal Doctrine on Domestic Revolts and Foreign Intervention throughout the Early Stages of the Dutch Revolt’, in The Act of Abjuration. Inspired and Inspirational, ed. by P. Brood and R. Kubben (Nijmegen: Wolf Legal Publishers, 2011), pp. 119–​153. As famously described by R. Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999). W. Bain, ‘Vitoria: the law of war, saving the innocent, and the image of God’, in Just and Unjust Military Intervention, pp. 70–​95. L. Scuccimarra, ‘Combattere per l’umanità. Resistenza al tiranno e dovere di intervento in Francia nell’epoca delle guerre di religione’, in Studi in memoria di Luigi Gambino, ed. by G. Giunta (Milan: Franco Angeli, 2012), pp. 477–​494. For an overview see M. van Gelderen, ‘ “So meerly humane”: Theories of Resistance in Early Modern Europe’, in Rethinking the Foundations of Modern Political Thought Cambridge, ed. by A. Brett and J. Tully (Cambridge: Cambridge University Press, 2006), pp. 149–​170.

84 Clerici discrepancy between Calvin’s handling of the question and the more radical treatises of the 1570s, such as the Right of magistrates by Theodore de Bèze (1574), the anonymous Alarm Bell of the Frenchmen (1574) and especially the also still anonymous and very influential Vindiciae contra tyrannos (1579). As often noted, Calvin is profoundly reticent about armed resistance, especially by private persons.30 Nevertheless, in the fourth book of the Institutes of Christian Religion he does identify three possible agents who might overthrow tyrants and deliver oppressed peoples: divinely inspired ‘avengers from among God’s servants’; foreign powers and, finally, popular magistrates. Much has been written about the third category, and John Coffey examined the first kind of agent,31 but here I would like to draw the attention to the second type, namely foreign saviors. In Calvin’s words, At one time he [God] raises up manifest avengers from among his own servants, and gives them his command to punish accursed tyranny, and deliver his people from calamity when they are unjustly oppressed; at another time he employs, for this purpose, the fury of men who have other thoughts and other aims. Thus he rescued his people Israel from the tyranny of Pharaoh by Moses … Thus he tamed the pride of Tyre by the Egyptians; the insolence of the Egyptians by the Assyrians; the ferocity of the Assyrians by the Chaldeans … All these things, however, were not done in the same way. The former class of deliverers being brought forward by the lawful call of God to perform such deeds, when they took up arms against kings, did not at all violate that majesty with which kings are invested by divine appointment, but armed from heaven, they, by a greater power, curbed a less, just as kings may lawfully punish their own satraps. The latter class [that is, the foreign liberators], though they were directed by the hand of God, as seemed to him good, and did his work without knowing it, had nothing but evil in their thoughts.32 So, using only biblical examples, Calvin stresses the fact that foreign liberators are only God’s instruments; they do not act either from a religious or moral

30 Skinner, Foundations, ii, pp. 191–​194; Turchetti, Tyrannie et tyrannicide, p. 415; Witte, The Reformation of Rights, pp. 114–​115. 31 J. Coffey, ‘The Language of Liberty in Calvinist Political Thought’, in Freedom and the Construction of Europe, ed. by Q. Skinner, M. van Gelderen (Cambridge: Cambridge University Press, 2013), vol. i, pp. 296–​316. 32 J. Calvin, Institutes of the Christian Religion, iv.20, 30–​31, in Luther and Calvin on Secular Authority, ed. by H. Höpfl (Cambridge: Cambridge University Press, 1991), pp. 81–​82.

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duty or from a religious or moral right to help oppressed peoples in the name of ‘humankind’ or the common Christian family, but simply following their earthly ‘evil’ interests, although as part of a greater providential design. In other words, it seems to me that despite Calvin’s interest in Stoic philosophy,33 Stoicism does not play a role here, and neither does the Scholastic notion of natural law founded on caritas. The passage seems, in fact, more Augustinian than Thomist. It is possible to perceive a marked difference in the later Huguenot texts, published during the Wars of Religion in France and the Netherlands. Indeed, the St. Bartholomew’s day massacre, and the harsh repression of the Dutch Revolt by the Duke of Alba, more and more came to be conceived as cases of ‘manifest tyranny’ and paved the way to a radicalization of resistance theories and appeal to foreign intervention, in which one can clearly detect an influence (as well as an adaptation) of Ciceronian Stoicism.34 This is only one fragment of a very broad cultural phenomenon, that is the Early Modern revival of Stoicism,35 especially in the texts of Cicero and Seneca, who could provide, in the ethical sphere, a practical guide for living in an age of shaken religious and moral certainties and violent geopolitical changes. One of the most revitalized Stoic principles was the notion of societas hominum, the ‘universal commonwealth’ of Cicero, formed by men out of their reasonable nature, and irrespectively of race, language or citizenship, leading to the recognition of an organic connection between all human beings, where everyone is bound to observe duties towards his brethren.36 Among these duties, Cicero famously placed

33 34

35

36

B. Pitkin, ‘Erasmus, Calvin, and the Faces of Stoicism in Renaissance and Reformation Thought’, in The Routledge Handbook of the Stoic Tradition, ed. by J. Sellars (London-​ New York: Routledge, 2016), pp. 145–​59. M. Dzelzainis, ‘The Ciceronian Theory of Tyrannicide from Buchanan to Milton’, in George Buchanan. Political Thought in Early Modern Britain and Europe, ed. by C. Erskine and R.A. Mason (Farnham: Ashgate, 2011), pp. 173–​188. This aspect of the Early Modern reception of Cicero is completely absent in the Brill’s Companion to the Reception of Cicero, ed. by W.H.F. Altman (Leiden-​Boston: Brill, 2015). See, in general, P.-​F. Moreau, Le Stoïcisme au XVIe et au XVIIe Siècle. Le Retour des Philosophies Antiques à l’Age Classique (Paris: Albin Michel, 1999); Stoicism. Traditions and Transformations, ed. by S.K. Strange and J. Zupko (Cambridge: Cambridge University Press, 2004); The Routledge Handbook of the Stoic Tradition, cit. For the political dimension, G. Oestreich, Neostoicism and the early modern state (Cambridge: Cambridge University Press, 1982), to be read with the careful remarks of C. Brooke, Philosophic Pride: Stoicism and Political Thought from Lipsius to Rousseau (Princeton: Priceton University Press, 2012). M. C. Nussbaum, ‘Duties of Justice, Duties of Material Aid. Cicero’s Problematic Legacy’, in Stoicism. Traditions and Transformations, ed. by Steven K. Strange and Jack Zupko (Cambridge: Cambridge University Press, 2004), pp. 214–​249.

86 Clerici also the obligation to aid all who are in need, attacking those ‘who say that account should be taken of other citizens, but deny it in the case of foreigners; such men tear apart the common fellowship of human race’.37 It is here that Stoic cosmopolitanism meets the ius gentium and the question of intervention, to foster a somehow neglected form of Early Modern neo-​Stoicism, not in the direction of self-​mastery, detachment from external events and obedience to existing authorities, but as a call to political engagement, sharing others’ sufferance and actively resisting the ‘enemies of mankind’ (communis hostis omnium).38 While Lutheran political thought had already relied on Cicero’s writings for the justification of resistance,39 the irruption of Stoic reasonings and sources in Huguenot literature after 1572 was immediately associated with the discussion on the obligation to support the oppressed, as it becomes visible already in one of the most well-​known monarchomach pieces, the Rights of magistrates by the humanist-​educated Theodore de Bèze, Calvin’s successor at Geneva, published in 1574 and frequently reprinted in both the Latin and French editions. Indeed, Bèze ‘was well versed in the writings of Cicero’ and ‘Ciceronian-​Stoic themes, such as the lex naturae, and the communes notiones, permeates his theological works’.40 The third quaestio of the treatise deals with the legitimacy of disobedience to commands going against religion or against equity. While employing primarily biblical sources,41 nonetheless Bèze also stresses the cogent character of such disobedience speaking of ‘the duties which men owe to their fellowmen both by the law of God and by the law of nature’, quoting the biblical example of Obadiah, who not merely refrained from slaying the prophets of God, but even protected and nourished them in defiance of the command of Ahab and Jezebel, ‘since the Lord bids us, each as

37 Cicero, De officiis, iii.6.27–​28: ‘Those, too, who say that account is to be taken of citizens, but not of foreigners, destroy the common society of the human race’ (Qui autem civium rationem habendam, externorum negant, ii dirimunt commune humani generis societatem). 38 Cicero, De officiis, iii.29.107. On the genealogy of this concept see W. Rech, Enemies of Mankind: Vattel’s Theory of Collective Security (Leiden-​Boston: Brill, 2013). 39 A. Raath, ‘Stoic Roots of Early Reformational Resistance Theory: a Marginal Note on the Origins of the Right to Resistance in Early Reformational Political Thought’, Studia historiae ecclesiasticae, 35 (2009), pp. 303–​322. 40 J. Mallinson, Faith, Reason, and Revelation in Theodore Beza, 1519–​1605 (Oxford: Oxford University Press, 2003), p. 53. 41 D. Quaglioni, ‘«Religio sola est, in qua libertas domicilium conlocavit». Coscienza e potere nella prima età moderna’, in Religious Obedience and Political Resistance in the Early Modern World, ed. by Simonutti, pp. 33–​52 (at p. 40).

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far as his calling permits, to bring succor to his brethren in peril’.42 That means for Bèze that the duty to protect and help others must take into account the social position of the agent and in fact, later in the text, he affirms that the possibility for a tyrant-​oppressed people to ask for help ‘abroad, and first of all among friends and allies’ resides only in the ‘wisest part’ of the commonwealth (sanior pars). But he also affirms that ‘men are collectively and individually subjected to natural, or divine law, in so far as they are born men’. Finally, we find in the text the link between the law of God, the law of nature and the law of nations, precisely when Beza is countering the objection, well known nowadays, that ‘national’ laws should not be judged by ‘supra-​national’ principles: If again someone were to raise the objection that public law referring to the constitution of the people or nation … differs widely from the law of nature common to all mankind, I shall concede that this is true indeed in certain matters, but with this limitation that the entire distinction is connected with circumstances which cannot prevent general fairness and equity from so far remaining steadfast and invariable that every polity acting in violation of it –​as for example if undisguised impieties, robberies and similar crimes both against God and against the law of nations and good morals were to meet with approval –​should be utterly condemned and cast off.43 A similar line of reasoning, stressing the mandatory character of resistance against tyranny in the name of natural bonds, appears in one of the most significant pamphlets in Simon Goulart’s Mémoires de l’ estat de France sous Charles Neufiesme (1577), that is the dialogue The Politician,44 and especially in another evocative albeit unsystematic monarchomach text, the Alarm bell of

42 43 44

T. de Bèze, Du droit des Magistrats sur leurs subjets: Traittè très-​necessaire en ce temps … 1574, pp. 6–​7. See T.de Bèze, Du droit des Magistrats. Introduction, édition et notes par R. Kingdon (Genève : Droz, 1970). I have used the original edition. Bèze, Du droit des Magistrats, pp. 60–​61. Le Politique, dialogue traittant de la puissance, authorité, et du devoir des Princes …, in S. Goulart, Mémoires de l’ Estat de France sous Charles Neufiesme, 1577, vol. 3. I have used the second edition from 1578, where the text is available at pp. 61r-​116v. The author relies heavily on Cicero’s writings. See for example p. 86: ‘Cicero, in the third book of his On duties, shows that the law of nations [droit des gens] is a constitution [constitution] that has to be respected by the civil law: for it brings all its laws under the universal society, as confirmed by the laws of all peoples … Its source is a common law by which nature obliges all men to share the necessary commodities of life, and to refrain from doing anything against the society of mankind [societé humaine]’.

88 Clerici the Frenchmen (Le Reveille-​matin des François),45 whose international character is clearly visible starting from the anonymous author, who significantly calls himself ‘Eusebius Philadelfo Cosmopolita’, that is ‘Pious brother-​loving citizen of the world’. From the narrative of especially the second dialogue emerge the different reasons that in a truly Christian perspective require an intervention in defence of the French Huguenots unjustly persecuted: the bond of ‘benevolence and charity’ that holds all Christians by virtue of their brotherhood in Christ; but also the duty of mutual aid existing between different parts of the Ecclesia Universalis, and the irreversible damage that the weakening of one of them is likely to cause to the whole body.46 It follows the legitimacy of a true ius ad bellum directed against anyone oppressing and discriminating the followers of the true faith, regardless of the geographical location of the sovereign power. According to the author of Reveille-​Matin, the defence of the Church of God and of the kingdom of Jesus Christ from the dangers of ‘domination ‘and’ tyranny’ is ‘stretching the length and breadth of the whole earth, without limit’, and it is in fact an activity ‘equally and indifferently recommended to all the princes of the earth, so I say that the prince who really cares of his duty, may search, chastise and fight his partner who makes war on God’. Again, like in Bèze, this is mainly conceived as a duty not of private individuals, but of legitimate authorities, with a precise warning to the Christian princes: ‘In the absence of action, therefore, each of them will be called by God to give an account of all their brother’s blood poured out for lack of help and relief, since they knew the anguish of their brethren, they could remedy it, and they did not’.47 The will of God is not, however, the only normative demand in support of an external aid as the only possibility for a quick return of the kingdom of France to the religious and constitutional normality. Other voices, far more worldly, in fact intervene in the text to reaffirm the duty of European princes to oppose force by force in extreme cases of tyrannical degeneration, and to combat the perpetrators as ‘sworn enemies of mankind’; ancient voices and influential as that of Cicero, who

45

46 47

Le Réveille-​ Matin des Français et de leur voisins, composé par Eusèbe Philadelphe Cosmopolite, en forme de dialogues, Edimbourg, 1574. The pamphlet has been attributed without certainty to Theodore de Bèze, Philippe Duplessis-​Mornay and Nicolas Barnaud. See Le Réveille-​matin des François, ed. by J.-​R. Fanlo, M. Lambiase and P.-​A. Mellet, (Paris: Garnier, 2016). I have used the original edition. Le Reveille-​matin des Francois, Dialogue ii, pp. 50–​51. Le Reveille-​matin des Francois, Dialogue i, p. 142.

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in his book on the Duties says that we cannot and should not associate or have anything to do with the tyrants, but rather that we must take the distance and separate from them; and that it is not against nature to deprive them of their power, if we can also kill them honestly; that all such obnoxious and profanes must be cut off from the community of men, being a very reasonable thing, as you cut the gangrenous limbs from the body, and detach these cruel and ferocious beasts from the human consortium and the common society of men.48 So, from the scattered remarks of this eschatological piece of propaganda, it is possible to detect a minimal but important shift from a purely religious duty to help the innocents against tyrants, to a moral duty in the name of a neo-​Stoic ‘humankind’, no longer specifically tied to a Christian cosmos. This expansion and radicalization of Huguenot views, towards an ethics of ‘responsibility to protect’ men as simple human beings is of course less a complete and mature process of secularization than the tactical juxtaposition and integration of different rhetorical strategies and philosophical traditions in order to achieve a political goal, as Philip Benedict has rightly emphasized.49 In fact, in the passionate part of the pamphlet known as the Arrest de Daniel, we can also read a prayer to God in order that he could ‘change the heart’ of the tyrant or ‘foster a neighboring prince as the redeemer of this poor afflicted people’.50 Nevertheless, appeal to Stoic notions such as the ‘brotherhood of man’ and ‘humanity’ when discussing political resistance were more and more in vogue, as in the extremely ‘Ciceronian’ pamphlet Political Discourses, written again in 1574 and reprinted in the second edition of the formidable Mémoires of Simon Goulart.51 Skinner rightly emphasized the rather ‘anarchic’ nature of this text,52

48 49 50

51 52

Le Reveille-​matin des Francois, Dialogue ii, p. 60, based on Cicero, De officiis, iii.7.32. P. Benedict, ‘Were the French Wars of Religion really Wars of Religion?’, in The European Wars of Religion, ed. by Palaver et al., pp. 61–​86. (especially pp. 77–​79). Le Reveille-​matin des Francois, Dialogue i, p. 143. It may seem a line closely influenced by Calvin’s above-​mentioned remark on ‘foreign liberators’, but while Calvin, as we have seen, stressed the fact that those liberators ‘were directed by the hand of God, as seemed to him good, and did his work without knowing it, had nothing but evil in their thoughts’, here the redeeming Prince is one ‘stoically’ characterized ‘by his virtue and distinguished qualities’ (par sa vertu et marques insignes). Discours politiques des diverses puissances establies de Dieu au monde, du gouernement legitime d’icelles, & du deuoir de ceux qui y sont assuiettis, in Goulart, Mémoires de l’ Estat de France, pp. 203r-​317v. Q. Skinner, ‘Humanism, Scholasticism and Popular Sovereignty’, in Id., Visions of Politics (Cambridge: Cambridge University Press, 2002), vol. 2, pp. 245–​63, here p. 249.

90 Clerici that –​contrary to most Calvinist literature –​employs ‘a highly individualistic theory of the ius gladii’ similar to that of George Buchanan’s De iure regni apud Scotos (written in the same years but published only in 1579).53 The issue of foreign intervention in Political Discourses is not treated extensively, but Cicero is the most frequently cited author. For example, quoting from De officiis the anonymous author remarks that since ‘(as the Stoics say) the earth and all it contains is made for the use of men, therefore men are made and engendered for other men’ and their mutual utility’. There is, in fact, a ‘sovereign and universal society’ that ‘has domination over all the others’, such that ‘one could say the world is one city’.54 The pamphlet also displays a rather secular stance, attacking the opinion of ‘some self-​styled theologians’, that opposition to tyrants ‘does not belong except to persons who have a particular revelation from God and a special command to touch the life of a prince’. And, considering the often-​discussed Old Testament case of Ehud and Jehu, he denies that ‘if they had not had a particular revelation, the thing would have been unjust on that account’.55 Finally, in the same vein as Bèze, The Politician and the Alarm Bell, Political Discourses defends the idea that resistance to tyranny has to be carried out without limits of sovereignty and jurisdictions, since ‘a citizen and an enemy are not distinguished by the place of their natural habitation, but by disposition and by actions’.56 But the best case in point is naturally the most well-​known, widely read and carefully argued of all the monarchomach texts, the notorious Vindiciae contra tyrannos published in 1579 and written by the anonymous ‘Stephanus Iunius Brutus’, usually identified with Philippe Duplessis-​Mornay and/​or Hubert Languet.57 Thanks mainly to David Trim, this text now has a place in the histories of humanitarian intervention, although Trim, in his underestimation of the Stoic elements in Protestant political thought, argues that the Monarchomachs

53 54 55 56 57

Dzelzainis, ‘The Ciceronian Theory of Tyrannicide’, p. 181. Discours politiques, pp. 240r-​242v. Discours politiques, pp. 293r-​294r. Discours politiques, p. 253v. Vindiciae contra tyrannos, sive de Principis in populum populique in Principem legitima potestate … Edimburgi [Basel], 1579. See Vindiciae, contra tyrannos: or, Concerning the legitimate power of a prince over the people, and of the people over a prince, ed. by G. Garnett (Cambridge: Cambridge University Press, 1994). I have used the very good critical edition edited by Garnett. For the authorship of the text see H. Daussy, Les Huguenots et le Roi. Le combat politique de Philippe Duplessis-​Mornay, 1572–​1600 (Gèneve : Droz, 2002), pp. 229–​239.

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‘conceived tyranny in narrow confessional terms’.58 This must be qualified.59 In the fourth section of the book, specifically devoted to the question of whether neighboring princes may by right or even ought to render assistance to subjects of other princes, when they are persecuted on account of pure religion or oppressed by manifest tyranny, we see on stage a powerful ‘rhetoric of liberation’ that is a characteristic of the entire work, presented with metaphors (wounds, fire, shipwreck), historical evocations (the emperors as defenders of the faith, the Crusades) and scriptural elements (with quotes and paraphrasing); all culminating in the image of Christ’s passion and innocents massacred. As usual in monarchomach literature (and in Early Modern political thought generally speaking), the exempla quoted are first taken from the Scriptures, and subsequently fortified by other sources. But as far as I can see the outcome is far more radical than that of Bèze or the Alarm Bell. Primarily, it appears that when Iunius Brutus speaks of the duty of the Christian princes to give aid to peoples suffering from religious or political tyranny he has a very broad idea of Christianity, actually, he believes that ‘kings, princes, and magistrates are obliged to increase, spread, defend and promote the kingdom of Christ anywhere and against anyone so ever’.60 In this page he refers to ‘the protection of the catholic –​or whole –​church (universa)’, whereas before he had also spoken of the ‘Roman’ or ‘Papal’ Catholic Church. This extensive definition of Christianity is specified with very evocative words: ‘when all Christian kings are inaugurated, they receive the sword expressly for the protection of the catholic –​or whole –​church. When they have received it in their hands, they point to all the quarters of the world, and brandish the sword towards the east, west, south, and north, lest any part of the world be considered exempt’.61 To be even more precise, Brutus quotes the biblical example of Josiah, king of Judah, who purged from idolatry ‘not only his own kingdom, but also the Israelite one, which was at that time clearly assigned to the king of the Assyrians’. The conclusion is that ‘without any doubt, where the glory of God and the kingdom of Christ is concerned, no limits (limites), no frontiers (fines), no barriers (cancelli), ought to restrict the zeal of pious princes’. After all, in the Gospel Christ said that we should love a neighbour as ourselves, and ‘a Jew is bound, if he 58 59

60 61

Trim, ‘If a prince use tyrannie towards his people’, p. 36. Alexis Heraclides has already pointed out, though very briefly, that ‘the monarchomachs were primarily concerned with the plight of their fellow Protestants. However, in their works they also referred to people in general’. See Heraclides in Humanitarian Intervention, p. 19. Vindiciae, contra tyrannos, quaestio iv, p. 175. Vindiciae, contra tyrannos, quaestio iv, p. 176.

92 Clerici wants to fulfil his office, to rescue from a robber not only the neighbor of a Jew, but also a foreigner (peregrinus) and stranger, if he can do so’.62 At this point Brutus introduces the Stoic theme of the ‘human society and the common nature of all’. Citing a passage from the third book of Cicero’s De officiis, he announces that ‘the nature of all men is one, nature itself prescribes that man desires to show concern for another man, whoever he may be, for this very reason: that he is a man. If this were not so, all human association would, of necessity, dissolve’.63 This moral stance is repeated when the author of the Vindiciae, like Theodore de Bèze did before him, counters the objection of the inviolability of borders and jurisdictions, ‘that it is not lawful to thrust a scythe into another’s harvest’, answering again with Cicero quoting Terentius: ‘I am a man. I think that nothing human is alien to me’ (nihil humanum a me alienum puto).64 Again, in line with other monarchomach texts, the mandatory character of princely actions against tyranny is forcefully advocated also in the Vindiciae, either when God and Christianity, or just human nature are concerned. In the first case, having God entrusted the whole Church to individuals, and its individual parts to all Christian princes together, ‘if one part of it –​the German, perhaps, or the English –​is in the charge of the prince of that region, but he abandons and disregards another part which is being oppressed when he could have rendered assistance, he is considered to have deserted the church’.65 Once more Brutus turns to the Holy Scripture, mentioning the case of the tribe of Reuben who, having refused to take up arms against the tyranny of Jabin, was damned by God. In the second case he is more straightforward: ‘[T]‌o sum up, he who can snatch someone away from death, and fails to do so, is equally liable as one who kills’.66 The very final lines of the tract conjure the mythical figure of Hercules, the punisher of tyrants, and make clear once more that tyranny has not only a strictly religious dimension, being possibly exercised ‘over bodies or souls, over the commonwealth or the church of Christ’.67 (my emphasis). To conclude, I tried to show that on the issue of intervention the Calvinist Monarchomachs tried to integrate and complement a biblical and religious discourse with secular arguments mainly taken from late Roman Stoicism, a 62 63 64 65 66 67

Vindiciae, contra tyrannos, quaestio iv, pp. 176, 181. Vindiciae, contra tyrannos, quaestio iv, p. 181. Vindiciae, contra tyrannos, quaestio iv, p. 183. Vindiciae, contra tyrannos, quaestio iv, p. 175. Vindiciae, contra tyrannos, quaestio iv, p. 180. Vindiciae, contra tyrannos, quaestio iv, p. 173.

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sort of ‘alliance’ between Christ and Cicero. Facing the dramatic events of the Wars of Religion, they developed an idea of intervention different from that of Calvin, stressing not only the religious duty to help oppressed people, and not yet the ‘natural right’ to do so, but also, at least partially, the idea of a moral duty based on a strong notion of tyranny as a regime acting, in Brutus’ words, against ‘God, nature, and the customs of nations’. This conception marks a problematic departure from the traditional constitutional constraints of the Calvinist doctrine of resistance, since if the duty to render assistance to those oppressed by manifest tyranny is grounded both in the universal law of God and the universal nature of mankind, then on the one hand, in the absence of a legitimate authority entitled to judge sovereigns (since the Pope and the Holy Roman Emperor could no longer hold this role), Christian princes judge by themselves who is a ‘manifest’ tyrant, and come very close to those ‘holy avengers’ with a special calling from God and no other judges on Earth, and on the other hand the moral duty to protect men against ‘enemies of mankind’ leaves room for an individualistic, almost ‘anarchic’ approach to foreign intervention, precisely because it is partially justified in the name of humanity, and not only on behalf of Christian princes, with the result that, strictly speaking, no single man is exempted from the duty to help the oppressed. This problematic approach to the question of resistance against tyranny has already been noticed in the case of George Buchanan,68 but it is at least partially visible also in these texts discussed above concerning the issue of foreign intervention.69 There is indeed a difference between this kind of justification for external help and the Scholastic idea of defensio innocentium, built around the notion of caritas, and I believe that Francisco Suarez was replying precisely to the above-​ mentioned passages in the Vindiciae, and their Stoic outlook, when in his disputation on war inside De triplici virtute theologica he concluded: Wherefore, the assertion made by some writers, that sovereign kings have the power of avenging injuries done in any part of the world, is entirely false, and throws into confusion all the orderly distinctions of jurisdiction; for such power was not [expressly] granted by God and its existence is not to be inferred by any process of reasoning.70 68 Dzelzainis, ‘The Ciceronian Theory of Tyrannicide’, pp. 177–​178. 69 For the contemporary relevance of the Ciceronian approach to intervention see Nussbaum, ‘Duties of Justice, Duties of Material Aid’. 70 The section on war was written in fact just after the publication of Vindiciae, between 1579 and 1585, when Suarez was lecturing in theology at the Jesuit Roman College. See F. Suárez, Selections from Three Works: A Treatise on Laws and God the Lawgiver; A Defence of the Catholic and Apostolic Faith; A Work on the Three Theological Virtues: Faith, Hope,

94 Clerici It is not possible here to trace the influence of the literature so far discussed for the later development of the ius naturae et gentium,71 but it is interesting to note that even critics of the Monarchomachs such as Jean Bodin and –​perhaps less surprisingly –​the key figure of Early Modern neo-​Stoicism, Justus Lipsius, allowed and even praised foreign intervention against tyrants,72 and especially Alberico Gentili’s ideas on defensio honesta were clearly indebted to the Calvinist pamphlets.73 It is not surprising that the first English translation of a part of the Vindiciae is precisely a translation of the fourth quaestio, that

71 72

73

and Charity. Edited and with an Introduction by Thomas Pink (Indianapolis: Liberty Fund, 2015), Disputation xiii On War, section iv, 3. note 2, p. 931. For a very concise overview see Heraclides, Humanitarian Intervention, part 2. J. Bodin, Les six livres de la république, Paris, 1576, ii.5, in J. Bodin, On Sovereignty, ed. by J. Franklin (Cambridge: Cambridge University Press, 1992), p. 113: ‘It makes a great difference whether we say that a tyrant can be lawfully killed by a foreign prince or by a subject. For just as it is glorious … to use force in defense … of those who have been unjustly oppressed –​as Moses did … so it is a most beautiful and magnificent thing for a prince to take arms in order to avenge an entire people unjustly oppressed by a tyrant’s cruelty, as did Hercules, who traveled all over the world exterminating tyrant-​monsters’ (using both a scriptural and a Stoic image); J. Lipsius, Politicorum libri sex, Lugduni Batavorum, 1589, v, 4, in J. Lipsius, Politica: six books of politics or political instruction; edited with translation and introduction by J. Waszink (Assen: Van Gorcum, 2004), p. 547: ‘However, I distinguish two kinds of Defence: defending Yourself and defending Another … Defending another I subdivide again into two kinds: defending Allies, and defending the Oppressed. Cicero spoke about defending the Allies … And the same reasoning applies with respect to those who suffer from Oppression. It seems that the universal ties of Community [commune Societatis vinculum] oblige you to help people who are afflicted by heavy violence or extreme Tyranny [in the margin: Cicero, De officiis i.23] … Yes, the Christian teacher [st. Ambrose] even says in this respect: Courage which defends the fatherland in war against Savages, or defends the Weak, or allies against robbers, is full Justice’. Again, a sacred and a pagan authority is used one next to the other. See, for instance, A. Gentili, De iure belli, (Hanau, 1598), i.15, in A. Gentili, De Iure Belli Libri Tres [1612] (On the Law of War) J. C. Rolfe transl. (Oxford: Clarendon Press, 1933): ‘But so far as I am concerned, the subjects of others do not seem to me to be outside of that kinship of nature and the society formed by the whole world. And if you abolish that society, you will also destroy the union of the human race, as Seneca says very appropriately. And unless we wish to make sovereigns exempt from the law and bound by no statutes and no precedents, there must also of necessity be some one to remind them of their duty and hold them in restraint’. On the relation between Gentili and the Monarchomachs, mainly via Philip Sidney, see D. Pirillo, Filosofia ed eresia nell’Inghilterra del tardo Cinquecento. Bruno, Sidney e i dissidenti religiosi italiani (Rome: Edizioni di storia e letteratura, 2010), pp. 87–​142; A. Gajda, The Earl of Essex and Late Elizabethan Political Culture (Oxford: Oxford University Press, 2012), pp. 90–​95.

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on foreign intervention, published in 1588 by Gentili’s editor and friend, the brilliant publisher John Wolfe.74 Speaking about Hugo Grotius,75 while it is true that he has less to say on intervention than Gentili, nevertheless what he writes on the subject at the end of the second book of De iure belli ac pacis,76 including references to the kings’ ‘general responsibility for human society’, to Cicero, Seneca, Hercules and wars ‘justly undertaken against those who are inhuman’ reveal at least his participation in a political discourse already brought forward by the Monarchomachs, even though now centered on rights rather than duties.77,78

74

75

76

77 78

A shorte apologie for Christian souldiours: wherein is conteined how that we ought both to propagate, and if neede require, to defende by force of armes, the Catholike Church of Christ, against the tyrannie of Antichrist and his adherents: penned by Stephanus Iunius Brutus, and translated into English by H.P. for the benefite of the resolution of the Church of England, in the defense of the gospel, 1588; I. McLean, ‘Alberico Gentili, his publishers, and the vagaries of the book trade between England and Germany (1580–​1614)’, in Id., Learning and the Market Place. Essays in the History of the Early Modern Book (Leiden-​Boston: Brill, 2009), pp. 291–​337; A. Petrina, ‘Ai margini del testo. Alberico Gentili e la circolazione dell’opera di Machiavelli in Inghilterra’, in Alberico Gentili. ‘Responsibility to Protect’: nuovi orientamenti su intervento umanitario e ordine internazionale, ed. by V. Lavenia (Macerata: Ed. università di Macerata, 2015), pp. 195–​214. See P. Piirimäe, ‘The Westphalian Myth and the Idea of External Sovereignty’, in Sovereignty in Fragments: The Past, Present and Future of a Contested Concept, ed. by H. Kalmo and Q. Skinner (Cambridge: Cambridge University Press, 2010) p. 80, for war as punishments for infringements of universal moral justice, in Grotius. H. Grotius, The Rights of War and Peace, 3 vols, edited and with an Introduction by R. Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005), ii.25.8: ‘We must also know, that Kings, and those who are invested with a Power equal to that of Kings, have a Right to exact Punishments, not only for Injuries committed against themselves, or their Subjects, but likewise, for those which do not peculiarly concern them, but which are, in any Persons whatsoever, grievous Violations of the Law of Nature or Nations. For the Liberty of consulting the Benefit of human Society, by Punishments, which at first, as we have said, was in every particular Person, does now, since Civil Societies … have been instituted, reside in those who are possessed of the supreme Power … And therefore, according to Seneca, I may make War upon a Man, tho’ he and I are of different Nations, if he disturbs and molests his own Country, as we told you in our Discourse about Punishments, which is an Affair often attended with the Defence of innocent Subjects’. See also Grotius, The Rights of War and Peace, ii.20.40. Tuck, ‘Grotius, Hobbes and Pufendorf on humanitarian intervention’, loc. cit. I wish to thank Luca Scuccimarra for his expertise, friendship and support, and Hans Blom, Jana Engelbrechtová and László Kontler for the invitation to send a proposal for the conference on Sacred Polities, Natural Law and the Law of Nations in the 16th-​17th Centuries.

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Select Bibliography



Primary Literature

A shorte apologie for Christian souldiours: wherein is conteined how that we ought both to propagate, and if neede require, to defende by force of armes, the Catholike Church of Christ, against the tyrannie of Antichrist and his adherents: penned by Stephanus Iunius Brutus, and translated into English by H.P. for the benefite of the resolution of the Church of England, in the defense of the gospel. s.l., 1588. Bèze, Théodore de, Du droit des Magistrats sur leurs subjets: Traittè très-​necessaire en ce temps … [Genève]: [Jacob Stoer], 1574. Bèze, Théodore de, Du droit des Magistrats. Intr., ed. and annot. by R. Kingdon. Genève : Droz, 1970. Bodin, Jean, Les six livres de la république, Paris, 1576. Bodin, Jean, On Sovereignty, ed. by J. Franklin. Cambridge: Cambridge University Press, 1992. Luther and Calvin on Secular Authority, ed. by H. Höpfl. Cambridge: Cambridge University Press, 1991. pp. 81–​82. Discours politiques des diverses puissances establies de Dieu au monde, du gouernement legitime d’icelles, & du deuoir de ceux qui y sont assuiettis, in Goulart, Mémoires de l’ Estat de France, pp. 203r-​317v. Gentili, Alberico, De iure belli, Hanau, 1598. Gentili, Alberico, De Iure Belli Libri Tres [1612] (On the Law of War) J. C. Rolfe transl. Oxford: Clarendon Press 1933. Grotius, Hugo, The Rights of War and Peace, edited and with an Introduction by R. Tuck, from the Edition by Jean Barbeyrac. Indianapolis: Liberty Fund, 2005. 3 vols. Le Politique, dialogue traittant de la puissance, authorité, et du devoir des Princes …, in S. Goulart, Mémoires de l’ Estat de France sous Charles Neufiesme, 1577, vol. 3 . Le Réveille-​Matin des Français et de leur voisins, composé par Eusèbe Philadelphe Cosmopolite, en forme de dialogues, Edimbourg, 1574. Le Réveille-​matin des François, ed. by J.-​R. Fanlo, M. Lambiase and P.-​A. Mellet. Paris : Garnier, 2016. Lipsius, Justus, Politicorum libri sex, Lugduni Batavorum, 1589. Lipsius, Justus, Politica: six books of politics or political instruction; edited with translation and introduction by J. Waszink. Assen: Van Gorcum, 2004. Suárez, Francisco, Selections from Three Works: A Treatise on Laws and God the Lawgiver; A Defence of the Catholic and Apostolic Faith; A Work on the Three Theological Virtues: Faith, Hope, and Charity. Edited and with an Introduction by Thomas Pink. Indianapolis: Liberty Fund, 2015. Vindiciae contra tyrannos, sive de Principis in populum populique in Principem legitima potestate … Edimburgi [Basel], 1579.

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Vindiciae, contra tyrannos: or, Concerning the legitimate power of a prince over the people, and of the people over a prince, ed. by G. Garnett. Cambridge: Cambridge University Press, 1994.



Secondary Literature

Bain, William, ‘Vitoria: the law of war, saving the innocent, and the image of God’, in Just and Unjust Military Intervention, ed. by Recchia and Welsh, pp. 70–​95. Benedict, Philip, ‘Were the French Wars of Religion really Wars of Religion?’, in The European Wars of Religion, ed. by Palaver et al. pp. 61–​86. Brill’s Companion to the Reception of Cicero, ed. by W. H. F. Altman. Leiden-​ Boston: Brill, 2015. Brooke, Christopher, Philosophic Pride: Stoicism and Political Thought from Lipsius to Rousseau. Princeton: Priceton University Press, 2012. Coffey, John, ‘The Language of Liberty in Calvinist Political Thought’, in Freedom and the Construction of Europe, ed. by Q. Skinner and M. van Gelderen. Cambridge: Cambridge University Press, 2013. vol. i, pp. 296–​316. Crouzet, Denis, ‘Calvinism and the Uses of the Political and the Religious (France, ca. 1560-​ca. 1572)’, in Reformation, Revolt and Civil War, ed. by Benedict, pp. 99–​113. Crowe, Michael B., The Changing Profile of the Natural Law. The Hague: Nijhoff, 1977. Daussy, Hugues, Les Huguenots et le Roi. Le combat politique de Philippe Duplessis-​ Mornay, 1572–​1600. Gèneve : Droz, 2002. pp. 229–​239. Dzelzainis, Martin, ‘The Ciceronian Theory of Tyrannicide from Buchanan to Milton’, in George Buchanan. Political Thought in Early Modern Britain and Europe, ed. by C. Erskine and R. A. Mason. Farnham: Ashgate, 2011. pp. 173–​188. England England’s Wars of Religion, Revisited, ed. by C. W. A. Prior and G. Burgess. Aldershot: Ashgate, 2011. Esmein, Adhémar, ‘La théorie de l’intervention internationale chez quelques publicistes français du XVIe siècle’, Nouvelle revue historique, de droit français et étranger, 24 (1900), pp. 558–​566. Et de sa bouche sortait un glaive: les monarchomaques au XVIe siècle, ed. by P.-​A. Mellet. Géneve : Droz, 2006. The European Wars of Religion: An Interdisciplinary Reassessment of Sources, Interpretations, and Myths, ed. by W. Palaver, H. Rudolph and D. Regensburger (Abingdon: Routledge, 2016). Gajda, Alexandra, The Earl of Essex and Late Elizabethan Political Culture. Oxford: Oxford University Press, 2012. Grewe, Wilhelm G., The Epochs of International Law. Berlin: De Gruyter, 2001 (1st ed. in German 1984). Grotius and the Stoa, ed. by. H. Blom and L. Winkel. Assen: Van Gorcum, 2004.

98 Clerici Haakonssen, Knud, ‘Early Modern Natural Law Theories’, in The Cambridge Companion to Natural Law Jurisprudence, ed. by Duke and George, pp. 76–​102. Haakonssen, K., Natural Law and Moral Philosophy. From Grotius to the Scottish Enlightenment. Cambridge: Cambridge University. Press, 1996. Humanitarian Intervention in the Long Nineteenth Century: Setting the Precedent, ed. by A. Heraclides and A. Dialla. Manchester: mup, 2015. Just and Unjust Military Intervention: European Thinkers from Vitoria to Mill, ed. by S. Recchia and J. Welsh. Cambridge: Cambridge University Press, 2013. Koetsier, L.S., Natural Law and Calvinist Political Theory. Victoria: Trafford, 2004. Kubben, Raymond, ‘« We should not Stand Beside … ». International Legal Doctrine on Domestic Revolts and Foreign Intervention throughout the Early Stages of the Dutch Revolt’, in The Act of Abjuration. Inspired and Inspirational, ed. by P. Brood and R. Kubben. Nijmegen: Wolf Legal Publishers, 2011. pp. 119–​153. Larminie, Vivienne, Huguenot Networks, 1560–​1780: The Interactions and Impact of a Protestant Minority in Europe (Abingdon-​New York: Routledge, 2018). Mallinson, Jeffrey, Faith, Reason, and Revelation in Theodore Beza, 1519–​ 1605. Oxford: Oxford University Press, 2003. McLean, Ian, ‘Alberico Gentili, his publishers, and the vagaries of the book trade between England and Germany (1580–​1614)’, in Id., Learning and the Market Place. Essays in the History of the Early Modern Book. Leiden-​Boston: Brill, 2009. pp. 291–​337. Mellet, Paul-​Alexis, Les traités monarchomaques. Confusion des temps, résistance armée et monarchie parfaite, 1560–​1600. Genève: Droz, 2007. Metaphysique et politique de l’obéissance dans la France du XVIe siècle. 2004 thematic issue of the Nouvelle revue du seizième siècle. Moreau, Pierre-​François, Le Stoïcisme au XVIe et au XVIIe Siècle. Le Retour des Philosophies Antiques à l’Age Classique. Paris: Albin Michel, 1999. Neff, Stephen C., Justice Among Nations. A History of International Law. Cambridge, MA: Harvard University Press, 2014. Nussbaum, Martha C., ‘Duties of Justice, Duties of Material Aid. Cicero’s Problematic Legacy’, in Stoicism. Traditions and Transformations, ed. by Steven K. Strange and Jack Zupko (Cambridge: Cambridge University Press, 2004), pp. 214–​249. Nussbaum, Martha C., foreword to M. Schofield, The Stoic Idea of the City. Chicago: The University of Chicago Press, 1999. Oestreich, Gerhard, Neostoicism and the early modern state. Cambridge: Cambridge University Press, 1982. Passerin d’ Entrèves, Alessandro, Natural Law: an Introduction to Legal Philosophy. Abingdon-​New York: Routledge 2017 [1951]. Petrina, Alessandra, ‘Ai margini del testo. Alberico Gentili e la circolazione dell’opera di Machiavelli in Inghilterra’, in Alberico Gentili. ‘Responsibility to Protect»: nuovi

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orientamenti su intervento umanitario e ordine internazionale, ed. by V. Lavenia. Macerata: Ed. Università di Macerata, 2015. pp. 195–​214. Piirimäe, Pärtel, ‘The Westphalian Myth and the Idea of External Sovereignty’, in Sovereignty in Fragments: The Past, Present and Future of a Contested Concept, ed. by H. Kalmo and Q. Skinner. Cambridge: Cambridge University Press, 2010. Pirillo, Diego, Filosofia ed eresia nell’Inghilterra del tardo Cinquecento. Bruno, Sidney e i dissidenti religiosi italiani. Rome: Edizioni di storia e letteratura, 2010. Pitkin, Barbara, ‘Erasmus, Calvin, and the Faces of Stoicism in Renaissance and Reformation Thought’, in The Routledge Handbook of the Stoic Tradition, ed. by J. Sellars. London-​New York: Routledge, 2016. pp. 145–​59. Politeia biblica, ed. by L. Campos Boralevi and D. Quaglioni, special thematic issue of Il Pensiero Politico, 35 (2002). Prestwich, Menna, International Calvinism, 1541–​1715. Oxford: Clarendon Press, 1985. Quaglioni, Diego, ‘«Religio sola est, in qua libertas domicilium conlocavit». Coscienza e potere nella prima età moderna’, in Religious Obedience and Political Resistance, ed. by Simonutti, pp. 33–​52. Raath, Andries, ‘Stoic Roots of Early Reformational Resistance Theory: A Marginal Note on the Origins of the Right to Resistance in Early Reformational Political Thought’, Studia historiae ecclesiasticae, 35 (2009), pp. 303–​322. Rech, Walter, Enemies of Mankind: Vattel’s Theory of Collective Security. Leiden-​ Boston: Brill, 2013. Reformation, revolt and civil war in France and the Netherlands 1555–​1585 ed. by Philip Benedict. Amsterdam: Royal Netherlands Academy of Arts and Sciences, 1999. Religious Obedience and Political Resistance in the Early Modern World: Jewish, Christian and Islamic Philosophers Addressing the Bible, ed. by L. Simonutti. Turnhout: Brepols, 2014. Schorn-​Schütte, Luise, ‘Politica Christiana in the Sixteenth and Seventeenth Centuries’, in Politics, Law, Society, History and Religion in the ‘Politica’ (1590s-​1650s), ed. by R. von Friedeburg. Zurich-​New York, Olms Verlag, 2013. pp. 59–​86. Scuccimarra, Luca, ‘Combattere per l’umanità. Resistenza al tiranno e dovere di intervento in Francia nell’epoca delle guerre di religione’, in Studi in memoria di Luigi Gambino, ed. by G. Giunta. Milan: Franco Angeli, 2012. pp. 477–​494. Scuccimarra, Luca, I confini del mondo. Storia del cosmopolitismo dall’Antichità al Settecento. Bologna: Il Mulino, 2006. Scuccimarra, Luca, Proteggere l’umanità. Sovranità e diritti umani nell’epoca globale. Bologna: Il Mulino, 2016. Seeing Things Their Way: Intellectual History and the Return of Religion, ed. by A. Chapman, J. Coffey and B. S. Gregory. Notre Dame: University of Notre Dame Press, 2009.

100 Clerici Skinner, Quentin, ‘Humanism, Scholasticism and Popular Sovereignty’, in Id., Visions of Politics. Cambridge: Cambridge University Press, 2002. vol. 2, pp. 245–​63. Skinner, Quentin, The Foundations of modern political thought. Cambridge: Cambridge University Press, 1978, 2 vols. Stoicism. Traditions and Transformations, ed. by S. K. Strange and J. Zupko. Cambridge: Cambridge University Press, 2004. Straumann, Benjamin, Roman Law in the State of Nature: The Classical Foundations of Hugo Grotius’ Natural Law. Cambridge: Cambridge University Press, 2015. System, Order, and International Law. The Early History of International Legal Thought from Machiavelli to Hegel, ed. by S. Kadelbach, T. Kleinlein and D. Roth-​Isigkeit. Oxford: Oxford University Press, 2017. The Cambridge Companion to Natural Law Jurisprudence, ed. by G. Duke and R. P. George. Cambridge: Cambridge University Press, 2017. The Oxford Handbook of the Responsibility to Protect, ed. by A. J. Bellamy and T. Dunne. Oxford: Oxford University Press, 2016. The Routledge Companion to Humanitarian Action, ed. by R. Mac Ginty and J.H. Peterson. Abingdon: Routledge, 2015. The Threads of Natural Law: Unravelling a Philosophical Tradition, ed. by F. J. Contreras. Dordrecht etc.: Springer, 2013. Tierney, Brian, The Idea of Natural Rights. Grand Rapids: Eerdmans, 1997. Trim, David J.B., ‘ “If a prince use tyrannie towards his people”: interventions on behalf of foreign populations in early-​modern Europe’, in Humanitarian Intervention. A History, ed. by D. J. B. Trim and B. Simms. Cambridge: Cambridge University Press, 2011. pp. 29–​66. Trim, David J. B., ‘“Put all to the sword”. The effects of Reformation on the ethics of war in sixteenth-​century Germany and England’, in Sister Reformations II/​ Schwesterreformationen II: Reformation and ethics in Germany and in England; Reformation und Ethik in Deutschland und in England, ed. by D. Wendebourg and A. Ryrie. Tübingen: Mohr Siebeck, 2014. pp. 271–​298. Trim, David J. B., ‘Intervention in European history, c1520–​1850’, in Just and Unjust Military Intervention: European Thinkers from Vitoria to Mill, ed. by S. Recchia and J. Welsh. Cambridge: Cambridge University Press, 2013. pp. 21–​47. Tuck, Richard, ‘Grotius, Hobbes and Pufendorf on humanitarian intervention’, in Just and Unjust Military Intervention, ed. by Recchia and Welsh, pp. 96–​112. Tuck, Richard, Natural Rights Theories: Their Origin and Development. Cambridge: Cambridge University Press, 1979. Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant. Oxford: Oxford University Press, 1999. Turchetti, Mario, Tyrannie et tyrannicide de l’Antiquité à nos jours. Paris: Presses universitaires de France, 2001.

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van Gelderen, Martin, ‘ “So meerly humane”: Theories of Resistance in Early Modern Europe’, in Rethinking the Foundations of Modern Political Thought, ed. by A. Brett and J. Tully. Cambridge: Cambridge University Press, 2006, pp. 149–​170. van Gelderen, Martin, The political thought of the Dutch Revolt 1555–​ 1590. Cambridge: Cambridge University Press, 1992. VanDrunen, David, Natural Law and the Two Kingdoms. A Study in the Development of Reformed Social Thought. Grand Rapids-​Cambridge: Eerdmans, 2010. von Ungern-​Stenberg, Antje, ‘Religion and Religious Intervention’, in The Oxford Handbook of the History of International Law, ed. by B. Fassbender and A. Peters (Oxford: Oxford University Press, 2012), pp. 294–​316. Witte, John, The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism. Cambridge: Cambridge University Press, 2007. Zarka, Yves-​Charles, Refonder le cosmopolitisme. Paris: Presses universitaires de France, 2014.

­c hapter 5

Separating the Universal and Natural from the Particular in the Mosaic Legislation

The Humanist and Calvinist Context of Franciscus Junius’s De politiae Mosis observatione (1593) Markus M. Totzeck Franciscus Junius (François du Jon, 1545–​1602) is one of the key figures in the formation of a Calvinist theological tradition following the great reformers John Calvin (1509–​1564) and Theodore Beza (1519–​1605). Junius made a noticeable impact not only on Early Modern theology, but also on political and legal thought. When in 1593 he published his treatise De politiae Mosis observatione,1 he had already established himself as a well-​known Reformed theologian and bible translator. He came to fame as a gifted humanist through the 1580 translation of the Old Testament he undertook together with the Reformed theologian and Hebraist John Immanuel Tremellius (1510–​1580).2 Multiple editions of the Biblia sacra followed and later went into print together with Theodore Beza’s translation of the New Testament. Junius had pursued diplomatic duties in the previous years and now continually extended his correspondence and networking throughout the European intellectual world. Before the 1 Citations in the following after the 2nd edition of the Opera theologica, see Franciscus Junius, De politiae Mosis observatione; Quid in populo Dei observari, quid non observari ex ea oporteat, postquam gratia & veritas per Christum facta est, & Euangelio promulgata, in Opera theologica Francisci Iunii Biturigis, sacrarum literarum professoris eximii. Editio postrema, prioribus auctior ([Geneva,] 1613; 1st ed. Opera [Geneva,] 1607/​1608; 1st ed. of treatise: Leiden, 1593; further ed.: Leiden, 1602; [Heidelberg,] 1603). For an overview of Junius’s writings see Tobias Sarx, Franciscus Junius d.Ä. (1545–​1602). Ein reformierter Theologe im Spannungsfeld zwischen späthumanistischer Irenik und reformierter Konfessionalisierung, Reformed Historical Theology 3 (Göttingen: Vandenhoeck & Ruprecht, 2007), pp. 288–​90. 2 Tremellius/​Junius, Testamenti veteris Biblia sacra sive libri canonici priscae Iudaeorum Ecclesiae a Deo traditi, Latini recens ex Hebraeo facti, brevibusque scholiis illustrati (…) (Frankfurt/​Main, 1579). The 2nd ed. of the Biblia sacra (London, 1580) was important for English speaking authors, such as William Welwood, who worked with this edition (see also further below sect. 1). Until the year 1764 at least 33 different print editions of the Tremellius-​ Junius bible were published (cf. Todd M. Rester/​Andrew M. McGinnis, ‘Introduction’, in Franciscus Junius, The Mosaic Polity, transl. Todd M. Rester, ed. Andrew M. McGinnis (Grand Rapids, MI: clp Academic, 2015), p. xxiii).

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publication of De politiae Mosis observatione, Junius had also worked on a compilation and commentary of Old Testament references in the New Testament, entitled Sacrorum parallelorum libri tres (1585/​88).3 All of these works and the later De theologia vera (1594) paved the way for Junius to become a leading figure in Reformed theology (‘school theology’). Especially his tract De politiae Mosis observatione, however, became important for the history of legal and political thought. Influential jurists and political thinkers such as Johannes Althusius, Hugo Grotius,4 Petrus Cunaeus,5 while English-​speaking intellectuals also cited it, as we will see in the following. Based on previous research on Junius as a theologian6 and his treatise De politiae Mosis observatione in particular,7 in the present chapter I first intend to further clarify the historical context of this treatise. Starting with a literary perspective, I will show how Junius’s treatise belongs in the context of humanist jurisprudence and a Calvinist tradition. Second, I will outline Junius’s legal theory in its most significant points. We will see how Junius upheld the model of the Mosaic polity as a perfect example and source of law, overall and in closer political terms, because for him it is the outcome of the purest reason and most closely follows the teachings of nature. In a last step, I will suggest an answer to the question in how far Junius’s approach really became relevant for the debates on church and state at his time and why he would turn to the model of the Mosaic polity and the written laws of Moses (ius scriptum) rather than content himself to elaborate on a theory of conscience and natural law in more detail.

3 Junius, Ad Testamenti Veteris Interpretationem, In Antiquissima Et Florentissima Heydelbergensi Academia nuper institutam & coeptam, prokatablēma (Heidelberg, 1585). The title Sacrorum parallelorum libri tres was introduced with the 3rd ed. of the book (1588). 4 Cf. Sarx, Franciscus Junius d.Ä., p. 139; pp. 277ff.; Lea Campos Boralevi, ‘Politia Judaica’, in Politisch-​rechtliches Lexikon der Politica des Johannes Althusius. Die Kunst der heilig-​unverbrüchlichen, gerechten, angemessenen und glücklichen symbiotischen Gemeinschaft, ed. Corrado Malandrino and Dieter Wyduckel (Berlin: Duncker & Humblot, 2010), p. 288. 5 Rester/​McGinnis, ‘Introduction’, pp. xlv-​xlvii. 6 Besides Sarx, Franciscus Junius d.Ä., see also Michael Plathow, Junius, Franz (du Jon) der Ältere. In Biographisch-​Bibliographisches Kirchenlexikon (bbkl) (Herzberg: Traugott Bautz, 1992), iii, pp. 885–​886; and the earlier study of: Friedrich Wilhelm Cuno, Franciscus Junius der Ältere, Professor der Theologie und Pastor (1545–​1602). Sein Leben und Wirken, seine Schriften und Briefe (Amsterdam: Von Scheffer, 1891). 7 There is now a modern English edition of Junius’s tract available, that I have used in most cases for the English translations in the following: Franciscus Junius, The Mosaic Polity, transl. Todd M. Rester, ed. Andrew M. McGinnis (Grand Rapids, MI: clp Academic, 2015). In some places I have used my own translation of the original Latin text and added the Latin legal terminology.

104 Totzeck 1

The Humanist Context of Junius’s De politiae Mosis observatione: The Early-​Modern Politia-​Judaica Literature

Junius’s De politiae Mosis observatione (1593) was part of the so-​called politia-​ judaica literature of his day. In fact, this historical context of the politia-​judaica literature has often been overseen in research, mainly because the relevant body of literature as such has been subject of a yet unfinished scholarly debate. The sixteenth and more particularly the seventeenth century saw the creation of an unique ‘text genre of the respublica-​hebraica’ or ‘respublica Hebraeorum’.8 This text genre is often understood as part of a ‘Hebrew revival’ and the flourishing Christian Hebraism at that time.9 Tracts like Junius’s De politiae Mosis observatione have consequently been interpreted as part of ‘political Hebraism’.10 However, it is important to take the whole body of the genre into account: Books and tracts entitled ‘respublica Hebraeorum’ or holding a similar title were themselves only part of the more comprehensive politia-​judaica literature and authors who, other than Junius, had no Hebraist background made major contributions to this politia-​judaica literature as well.

8

9

10

Frank Edward Manuel, The Broken Staff. Judaism through Christian Eyes (Cambridge, MA: Harvard University Press, 1992), pp. 115–​28; Lea Campos Boralevi, ‘Per una storia della Respublica Hebraeorum come modello politico’, in Dalle “Repubbliche” elzeviriane alle ideologie del ’900. Studi di storia delle idee in età moderna e contemporanea, ed. by Vittor Ivo Comparato and Eluggero Pii (Florence: Leo S. Olschki, 1997), pp. 17–​33; Sina Rauschenbach, ‘ “De Republica Hebraeorum”. Geschichtsschreibung zwischen “hebraica veritas” und Utopie’, Zeitschrift für Neuere Rechtsgeschichte, 26/​1–​2 (2004), pp. 9–​35; Kalman Neuman, ‘Political Hebraism and the Early Modern “Respublica Hebraeorum”: On Defining the Field’, In Hebraic Political Studies, 1/​1(2005), pp. 57–​65, who does not include Junius’s De politiae Mosis observatione in his own list of sources; François Laplanche, ‘Christian Erudition in the Sixteenth and Seventeenth Centuries and the Hebrew State’, Hebraic Political Studies, 3/​ 1 (2008), pp. 5–​18; Eric Nelson, The Hebrew Republic. Jewish Sources and the Transformation of European Political Thought (Cambridge, MA/​London: Harvard University Press, 2010), pp. 3–​22. See, for instance, Nelson, Hebrew Republic, pp. 3, 7ff.; Adam Sutcliffe, ‘The Philosemitic Moment? Judaism and Republicanism in Seventeenth-​Century European Thought’, in Philosemitism in History, ed. Jonathan Karp and Adam Sutcliffe (Cambridge: Cambridge University Press, 2011), pp. 67–​89. See, for instance, on Junius: Nelson, Hebrew Republic, pp. 14, 19, 72–​74 or Rester/​McGinnis, ‘Introduction’, pp. xli-​xlvii, who conceive ‘political Hebraism’ as an ‘early modern academic tradition’ (ibid., xli). For a critical overview on the concept of ‘political hebraism’ see Markus M. Totzeck, ‘Politischer Hebraismus: Möglichkeiten und Grenzen eines Forschungskonzeptes am Beispiel des schottischen Theologen und Hebraisten John Weemes (ca. 1579–​1636)’, in Recht, Konfession und Verfassung im 17. Jahrhundert: West-​und mitteleuropäische Entwicklungen, ed. by Robert von Friedeburg and Mathias Schmoeckel, Historische Forschungen 105 (Berlin: Duncker & Humblot, 2015), esp. pp. 218–​22.

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The politia-​judaica literature had juridical, historiographical, as well as theological roots.11 Franciscus Junius is to some extent exemplary for how these different roots came into interplay in the writing of one author. The history of the politia-​judaica literature sets in during the last third of the sixteenth century and was, in the beginning at least, primarily a juridical and historiographical endeavour of Christian humanists. These humanists were highly interested in ancient legal sources and viewed the corpus of the Mosaic law as the oldest of all legal codices. For them, Moses stood in line with the eldest lawgivers of ancient times12 and, drawing on biblical and extra-​biblical Mosaic traditions, they were eager to demonstrate that Mosaic law was on a par with other legal traditions, Roman law in particular. The first tracts of the politia-​judaica literature, from the last third of the sixteenth century onward, belonged to what is called ‘humanist jurisprudence.’13 The first humanist authors of the politia-​judaica literature were highly devoted to the model of the Mosaic legislation and many of them even went so far as to demonstrate that the Mosaic code was not only the ideal origin of Roman law, but also of many other legal traditions and the law of other nations. This had already to some degree drawn the attention of French humanist authors such as François Baudouin (1520–​1573), Jean Bodin (1529/​30–​1596),14 and the so-​called ars historica.15 For a number of these humanists an inspiration was also Pierre Pithou’s 11

See Markus M. Totzeck, Die politische Gesetze des Mose. Entstehung und Einflüsse der politia-​judaica-​ Literatur in der Frühen Neuzeit. Refo500 Academic Studies 49 (Göttingen: Vandenhoeck & Ruprecht, 2019). 12 See already Lea Campos Boralevi, ‘Mosè legislatore’, Il Pensiero Politico, 40/​2 (2008), pp. 268–​82. 13 Hans Erich Troje, ‘Arbeitshypothesen zum Thema “Humanistische Jurisprudenz” ’, Tijdschrift voor Rechtsgeschiedenis, 38 (1970); Idem, ‘Zur Humanistischen Jurisprudenz: 1) Mos gallicus; 2) Usura’, in Festschrift für Hermann Heimpel zum 70. Geburtstag am 19. September 1971, ed. by Mitarbeiter des Max-​ Planck-​ Instituts für Geschichte (Göttingen: Vandenhoeck & Ruprecht, 1972). 14 Cf. François Baudouin, De institutione historiae universae, et eius cum iurisprudentia coniunctione, ΠΡΟΛΕΓΟΜΕΝΩΝ libri II. (Paris, 1561), i, pp. 198ff. Baudouin integrates Hermetic ideas, when he refers to a most ancient Mosaic tradition that was already received by the Egyptian Mercurius Trismegistus in his books (see, for instance, Ibid., pp. 199, 202). See also on the legislator Moses and the ancient ‘republic of the Hebrews’: Jean Bodin, Methodus, ad facilem historiarum cognitionem; ab ipso recognitam et multo quam antea locupletior In Oeuvres philosophiques de Jean Bodin. Texte établi, traduit et publié par Pierre Mesnard, Corpus général des philosophes français. Auteurs modernes, vol. v,3 (Paris: Presses universitaires de France, 1951), pp. (101) 105–​269; here: pp. 219[A]‌,31ff; 28[B],43–​46; 41[B],27–​42; 43[B],59–​44[A],2; 52[A],27–​31; 53[A],27–​31; 54[A],42–​47. 15 Cf. Anthony Grafton, What Was History? The Art of History in Early Modern Europe (Cambridge: Cambridge University Press, 2007), pp. 62–​126; Donald R. Kelley, ‘Historia Integra. François Baudouin and his Conception of History’, Journal of the History of Ideas,

106 Totzeck edition of the fourth century Collatio legum Mosaicarum et Romanarum (also going under the title of Lex Dei) in 1573, an ancient compilation of Mosaic law and Roman law prior to the codification of Roman Emperor Justinian, who ruled from 527 to 565.16 Pithou’s Collatio was yet a further step towards the first writings of the politia-​judaica literature, i.e. comparative legal studies and historiographical works with a clear focus on the Mosaic legislation as a model for legislation as such. The first comparative legal study in this sense would be the Leges politicae, ex sacrae iurisprudentiae fontibus haustae (1577) of the French jurist François Ragueau (Franciscus Raguel[lus], d. 1605).17 His book was followed by Henri Estienne’s (or Étienne/​Henricus ii. Stephanus, 1528–​ 1598) legal compilation Iuris civilis fontes et rivi (1580);18 Iuris divini Iudaeorum ac iuris civilis Romanorum parallela (1594) by the Scottish jurist William Welwood (1578–​1622);19 and Themis Hebraeo-​Romana (1595) by the Heidelberg law professor Johann Kahl (Calvinus/​Calvus, d. 1614).20 Aside from this comparative legal interest of humanist jurists, a similar historiographical branch of the politia-​judaica literature emerged almost at the same time. This historiographical branch of the politia-​judaica literature was linked with the book De politia judaica (1574; entitled De republica Ebraeorum in the new edition of 1641 by Constantijn L’Empereur) written by the French Hebraist and theologian Corneille Bonaventure Bertram (1531–​1594),21 De republica Hebraeorum 25/​1 (1964), pp. 36–​39; Julian H. Franklin, Jean Bodin and the Sixteenth-​Century Revolution in the Methodology of Law and History (New York: Columbia University Press, 1963). 16 Fragmenta quaedam Papiniani, Pauli, Ulpiani, Gaii, Modestini, aliorumque veterum Iuris auctorum ex integris ipsorum libris ante Iustiniani Imp. tempora collecta, et cum Moysis legibus collata (…), ed. by Pierre Pithou (Paris, 1573). See now the new edition by Robert M. Frakes, Compiling the Collatio Legum Mosaicarum et Romanarum in Late Antiquity, Oxford Studies in Roman Society and Law (Oxford: Oxford University Press, 2013), pp. 157–​201/​241. 17 Ragueau, Leges politicae, ex sacrae iurisprudentiae fontibus haustae, collectaeque & ob commodiorem usum, ad formam Iustinianei Codicis digestae, ac per Titulos, Edictique perpetui seriem concinnatae (Frankfurt/​Main, 1577), further ed.: Frankfurt/​Main, 1586; Ragueau/​ Abraham Saur, Leges Politicae Divinae: Das ist/​Von Allen Buergerlichen Satzungen oder Rechten/​ erklaerung (Frankfurt/​Main, 1581); also under the title: Lex Politica Dei (…), (Frankfurt/​Main, 1587; 1596); Ragueau/​Laurent Bouchel, Leges politicae ex sacrae scripturae libris collectae (Paris, 1615). 18 Estienne, Iuris civilis fontes et rivi. Iurisconsultorum veterum quidam loci, ex integris eorum voluminibus ante Iustiniani aetatem excerpti ([Paris,] 1580). 19 Welwood, Iuris divini Iudaeorum ac iuris civilis Romanorum parallela (Leiden, 1594). 20 Kahl, Themis Hebraeo-​Romana, id est iurisprudentia Mosaica, et iuris tum canonici, tum civilis, Romana, inuicem collata; et methodice digesta (…) (Hanau; Frankfurt/​Main, 1595). 21 Bertram, De politia judaica, tam Ciuili quam Ecclesiastica: iam inde a suis primordijs, hoc est, ab Orbe condito, repetita (Geneva, 1574); further rev. ed.: Geneva, 1580; De republica Ebraeorum. Recensitus commentarioque illustratus opera Constant. l’Empereur (Leiden,

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libri vii22 of the first-​ranking Italian humanist Carlo Sigonio (c.1522–​1584), and De Iurisdictione, et qualis fuit in politia Judaica (1582) of the German law professor Joachim Stephani (1544–​1632), which was only the first volume of his major work De Iurisdictione (4 vols, 1604).23 Junius’s De politiae Mosis observatione lacks any direct references to the above-​mentioned early tracts of the politia-​judaica literature, but there is enough evidence that the book belongs in this very literary branch. Most obviously, Junius’s study and the other early tracts all have their main topic in common: the uniqueness and role model of the politia judaica (or politia Mosis) and the political laws of Moses. Consequently, later bibliographies mention Junius’s De politiae Mosis observatione under the same rubric politia judaica.24 But there is also more indirect evidence concerning the way in which the Mosaic legislation is seen and interpreted. Here, Junius remains very close to the approaches of the above-​mentioned ‘humanist jurisprudence’ in comparing the Mosaic corpus of law to other ancient legal corpora, especially Roman law. Junius’s own legal studies in Bourges, a centre of humanist jurisprudence at the time with well-​known teachers such as François Douaren and Hugues Doneau (Donellus),25 may have encouraged him to follow this comparative approach. A plethora of citations from ancient legal sources with many references to the Roman civil law (the Corpus Iuris Civilis)26 reveal this humanistic context.27 Junius carried forward the very first comparative and 1641; 1651); Hebraeorum res publica sive de politia Judaica tam civili quam ecclesiastica: iam inde a suis primordiis (Geneva, 1655). 22 Sigonio, De republica Hebraeorum libri VII (Bologna, 1582); further ed.: Bologna, 1583; Frankfurt, 1585; Hanau, 1608; Middelburg, 1676; 1678; Helmstedt, 1685; 1686; Leiden, 1701; Frankfurt, 1783. 23 Stephani, De iurisdictione Judaeorum, Graecorum, Romanorum et ecclesiasticorum libri iv (Frankfurt/​Main, 1614); further ed.: Frankfurt/​Main, 1661. 24 Cf., for instance, Carlo Giuseppe Imbonati, ‫ ןגמ וברח המחלמו‬Bibliotheca Latino-​ Hebraica sive de scriptoribus latinis, Qui ex diuersis nationibus Iudaeos, vel de re Hebraica vtcumque scripsere … Loco Coronidis adventus Messiae ac Iudaeorum blasphemiis, ac haereticorum calumniis vindicatus (Rome, 1694), pp. 531–​533; Jacques Lelong, Bibliotheca sacra: seu Syllabus omnium Sacrae Scripturae editionum in binos syllabos distincta […], 2 vols. (Paris, 1723), pp. 1068–​1070. 25 Cf. Rester/​McGinnis, ‘Introduction’, p. xx. 26 Cf. i.a. the comparisons of the Mosaic code with the Corpus Iuris Civilis in Junius, De politiae Mosis observatione, pp. 1490,10–​40; 1505,71–​77; 1510,15–​20; 1513,86–​89; 1514,45–​52; 1517,60–​80. See also the references to other ancient legal corpora and legislators in Ibid., Praef., pp. 1474–​1475 (Egyptians); Praef., p. 1481 (Twelve Tables as the earliest source of Roman law); pp. 1490,64–​1491,14 (Stoics); p. 1507,77–​79 (Solon); p. 1520,30–​35 (Draco) i.a. 27 When this context is taken into account, it also becomes less difficult to explain Junius’s recourse to medieval scholastic theology and Thomas Aquinas’s conception of law from a confessional perspective. Humanist jurists were to some degree compilers of sources and

108 Totzeck historiographical studies of the politia-​judaica literature with his own systematic approach to the subject of the Mosaic polity. He intended to give a final answer to the question which of the discussed political Mosaic laws still were valid and binding for Christians in the present –​this question originated from theological debates during the Protestant reformation, as we will see in the following. For this purpose he introduced legal principles and classifications (types of law; objects of law (persons, actions, circumstances), general/​individual laws) and systematically distinguished between the eternal (natural and reasonable) and transient laws of the Mosaic polity. In a first step, however, Junius had to prove the uniqueness and exemplarity of the Mosaic legislation and its political laws as the basis for all his arguments. 2

The Uniqueness and Model of the Mosaic Legislation and Political Laws

Compared to other humanist writers, Junius was less interested in the proof from antiquity for the laws and writings of Moses. Nevertheless, he was eager to demonstrate their uniqueness and role model for subsequent laws until the present. The way, in which Junius comments on the ancient wisdom of the Egyptians (prisca sapientia), can serve as an illustration. In the preface of De politiae Mosis observatione Junius writes: Many histories once confessed that the Egyptians possessed great wisdom (among whom Moses was instructed). And of those Greek philosophers who were of the highest repute, nearly all of them are still celebrated for their reputation among the profane authors because they had personally imbibed of the teachings of the Egyptians. Many of the Egyptians’ excellent principles are found in Herodotus, Diodorus Siculus, and others, and Plutarch mentions that memorable saying that the kings of the Egyptians, according to the law, used to make the judges swear that

theories –​and this circumstance often complicates direct contextualisations derived by the use of sources for today’s readers. In the present chapter, I will not elaborate in depth on Junius’s reception of Thomas Aquinas and medieval scholastic theology. In many instances such a reception study has to rely on indirect references and implications (see, for instance, Rester/​McGinnis, ‘Introduction’, pp. xxxiii-​xxxvii). Yet another field of study would be the influence of Stoicism on Junius, especially regarding his concept of eternal law (lex aeterna) (see Sarx, Franciscus Junius d.Ä., pp. 109ff.), that this chapter can only broach.

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even if the king should command them to declare something unjustly in judgment, they would not do it.28 The passage cited above not only refers to the ancient wisdom of the Egyptians, celebrated by ancient Greek philosophers and pagan thinkers; it also stresses the legislation of the Egyptians in a very positive way. How does this correspond with Junius’s remark that Moses was instructed in the wisdom of the Egyptians? If Junius had turned to the bible in this case, he would only have been able to cite one passage in the Book of Acts (Acts 7:22). But instead of biblical references Junius cites extra-​biblical sources, namely Plutarch, Herodotus, Diodorus Siculus, who all had their own perspectives on Moses. Plutarch, for instance, portrayed Moses as an Egyptian, and devaluated the ‘Hebrews’ and the Jewish people.29 To over-​emphasise the Egyptian heritage of Moses and the age and role model of the ancient Egyptian legislation would not have been in the interest of Junius, however. Rather, it was his plan to stress the uniqueness and model of the Mosaic legislation as part of the ancient Jewish and biblical tradition. One therefore has to read very closely to see that only few sentences later, Junius qualifies his positive references about the legislation of the Egyptians by stating that, ‘however superior those laws of the Egyptians are in comparison with others, nevertheless there was an imperfection in the corpus of them, which would be the easiest thing to evince and demonstrate.’ For Junius, they cannot have ‘the first place in the political rank’.30 This also applies to the ancient corpus of Roman laws, even though Junius does not withhold the value of the Roman civil law code as a collection of human laws (leges humanae). In Junius’s opinion, ‘if there are any human laws whose corpus would have any value, it must rightfully be that code that was compiled by its author, Emperor Justinian, 1060 years ago from the wisest and most prudent

28

‘Magnam olim fuisse Aegyptiorum (apud quos Moses fuit institutus) sapientiam, omnes historiae confitentur: & quicunque ex Graecia philosophi in summo pretio exstiterunt (sic!), ij ferme omnes eo nomine ab auctoribus etiam profanis celebrantur, quod Aegyptiorum disciplinas hausissent coram. Exstant praeclara illorum instituta non pauca apud Herodotum, Diodorum Siculum, & alios: & illud memoratu dignum quod Plutarchus narrat, Reges Aegyptiorum secundum legem eos adiurasse qui iuri dicundo erant praefuturi; etiamsi rex ipse iuberet ab ipsis aliquid iniusti in iudicio pronunciari, vt id ne facerent’ (Junius, De politiae Mosis observatione, Praef., pp. 1474–​1475). 29 Jan Assmann, Moses the Egyptian: The Memory of Egypt in Western Monotheism, Cambridge/​MA 1997 reference to Moses der Ägypter. Entzifferung einer Gedächtnisspur (Frankfurt/​Main: Fischer Taschenbuch, 72011), pp. 64, 71. 30 Junius, De politiae Mosis observatione, Praef., p. 1475; Engl. quotation from the ed. Rester/​ McGinnis, p. 5.

110 Totzeck men’.31 But even this civil law code (the Corpus Iuris Civilis) stood clearly for imperfection. As a proof, Junius refers to the method of jurists to compare the old law (ius vetus) prior to Emperor Justinian with the Corpus Iuris Civilis and to detect the subsequent developments in the history of Roman law.32 Junius concludes that the imperfection of ancient Egyptian and Roman law codes is due to the imperfection of their authors. Therefore, vice versa, the purity or pure mode of laws (modus puritatis) that Junius speaks of, can only be reached if the legislator remains free from any fault; this, however, would never be possible for humans by any standards.33 There is always a degree of imperfection inherent in any human laws in Junius’s eyes. And seen from this perspective, the uniqueness of the Mosaic laws really stands out, because it is God who is the author of these laws. By their divine perfection the Mosaic laws surpass all Egyptian and Roman laws without exception; and for the following argumentation it is significant for Junius to already conclude the same for the political laws of Moses: Relying on a biblical image, Junius calls God on one hand an author and judge who ‘produces these laws for “his house”, that is, the church, which in all circumstances obtains from God its perfection of beauty over all created things (perfectio pulcritudinis a Deo supra res creatas omneis)’, and Moses, on the other hand, ‘a faithful servant in the whole house of God’.34 Whenever the laws of Moses touch on political and legal matters, and may be compared to human laws, the laws of Moses still ‘rank far higher than all the rest’ and ‘lack all imperfection’: Here, Junius does not use a direct proof from antiquity as other humanists did, but he speaks of ‘a long interval’ (longum intervallum), in which the authority, ordinance and application of the Mosaic political laws has excelled: ‘In matters of sculpture, the canon of Polyclitus (κανὼν πολυκλείτειος) is superior; in political matters, the canon of Moses’.35 When Junius mentions ‘several

31 Ibid.; Engl. quotation from the ed. Rester/​McGinnis, pp. 5–​6. 32 Cf. Ibid. 33 Cf. Ibid., Praef., p. 1474. 34 Ibid., Praef., p. 1475; Engl. quotation from the ed. Rester/​McGinnis, p. 6. 35 ‘Sin autem ad leges Mosis comparandas cum illis omnibus veniamus; profecto iniqui in Deum auctorem illarum, & in Mosem fidelem seruum Dei in tota domo illius fuerimus, nisi perfectionem diuinam & omni exceptione maiorem in illis legibus agnoscamus. Nam etsi quod ad res politicas & forenses attinet, multa in humanis legibus, ac praesertim in iure ciuili scripto compareant, quae cum Mosis legib[us] (quas diuinas praedicamus esse) maximam habent conuenientiam; qua in re probanda aliquot praestantes Iuriscoss. non infeliciter memoria nostra desudarunt: hae tamen leges Mosaicae & auctoritate, & ordinatione sua atq[ue] applicatione longo interuallo caeteras omneis superant. In statuaria κανὼν πολυκλείτειος antecelluit, in politica Mosaicus’ (Ibid.).

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outstanding jurists’ who had proven this by comparison with the Roman civil law (Corpus Iuris Civilis),36 he is probably referring to those humanist jurists who became the decisive forerunners and first authors of the politia-​judaica literature. Other than some of these humanist jurists, Junius declines a debate on the oldest legislators and laws of ancient times within a few sentences. He does not go into detail about the wisdom of the Egyptians or other ancient people (prisca sapientia), even though he was well aware of ancient extra-​ biblical Mosaic traditions, as seen in his citations of Plutarch, Herodotus, and Diodorus Siculus. Junius quietly integrated these ancient sources in order to demonstrate the uniqueness and role model of the Mosaic polity, although they could also have led him astray in his argumentation when taken literally. In the end, Junius has to choose a two-​sided line of argument. He stresses ‘both kinds of authority’, not only the highest authority of God as legislator, but also of Moses as legislator of the Israelites (Legislator Israëlitarum). The legislation of Moses over the Israelites was instituted by God, confirmed by the greatest signs, approved by the Jewish people who transferred authority to Moses (Ex. 20[:18–​19]; Ex. 24[:3–​8]) and consented to his leadership in religious matters.37 Thus, Moses as legislator of the Israelites, can also be named a ‘man of God’ (vir Dei, cf. Deut. 33:1). But Moses remains always subordinated to God as the true and proclaimed author (auctor) and sanctioner (sancitor) of the laws. That is why Junius also calls Moses an instrument (instrumentum) and servant (administer) of God. Identical formulations can be found in the works of John Calvin, who inspired Junius along with other Reformed theologians.

36 Cf. Ibid. 37 ‘Auctoritatem vero lex Mosis vtramque habuit: quod nemo homo sibi potest assumere, fuit enim auctor & sancitor legis illius publica testificatione Deus, cuius summa est & ineluctabilis in ferendis legibus sanciendisque auctoritas, tum auctoritatem humanam & subordinatam (vt vocant) si in lege Mosis desideraueris, fuit Moses vir Dei, Legislator Israëlitarum, vt Deut. 33. nominatur. Qui auctoritatem illam obtinuit non solum institutione Dei, & signis contestantibus amplissimis, verum etiam consentione iudicioque communi Israëlitarum omnium, prout Exodi 20. & 24. populus auctoritatem in eum transtulit, & institutionem diuinam religione ductus comprobauit. Haec duo faciunt, vt rationem legislatoris illius in se affirmemus non potuisse proficere, quia ad rationem & auctoritatem illam diuinam respicimus, cuius instrumentum fuit & administer Moses’ (Ibid., pp. 1510,90–​1511,22).

112 Totzeck 3

The Calvinist Context of Junius’s De politiae Mosis observatione

In several aspects one can specifically speak of a Calvinist or ‘Genevan-​Calvinist’ background of Junius’s book De politiae Mosis observatione. First, Junius called John Calvin and his successor Theodore Beza his theological teachers. Junius began his studies of theology in Geneva in 1562,38 and witnessed the last two years of Calvin as reformer and theologian. In these last years of his life, Calvin was, among other things, engaged in writing his commentaries on the books of Moses. The commentaries were collected and published first in Latin in 1563 by the printer and humanist Henri Estienne, and then in 1564 in French by François Estienne (Mosis libri quinque cum commentariis /​ Commentaires sur les cinq libres de Moyse).39 In recent years, Calvin’s commentaries have increasingly earned attention in research because of the new method that Calvin used to bring the law of Moses in the last four books of Moses (Exodus-​Deuteronomy) into a ‘harmonic form’ (in formam harmoniae digesti).40 Following a new approach, Calvin went beyond his own dogmatic masterpiece, the Institutes of the Christian Religion, with a systematic interpretation of the ceremonial laws and the judicial laws of Moses as appendices of the Ten Commandments (the moral law). Calvin was not the first Protestant reformer who considered the ceremonial and judicial laws of Moses additions to the Decalogue. In fact, Heinrich Bullinger (1504–​1575), Swiss reformer of Zurich and successor of Huldrych Zwingli, had already interpreted these laws of Moses as adjacent laws to the Decalogue (adiectae leges), which ‘explained’ and ‘confirmed’ the Ten Commandments.41 Thus, Calvin was able to build upon this understanding of 38 Cf. Sarx, Franciscus Junius d Ä., pp. 45–​47. 39 Calvin, Commentarii in quinque libros Mosis, in: Ioannis Calvini opera quae supersunt omnia, ed. by Wilhelm Baum, Eduard Kunitz and Eduard Reuss (Braunschweig: C.A. Schwetschke, 1869–​1896), vols 23–​25. 40 Cf. Raymond A. Blacketer, ‘Calvin as Commentator on the Mosaic Harmony and Joshua’, In Calvin and the Bible, ed. by Donald K. McKim (Cambridge et al., 2006), pp. 30–​52; Peter Opitz, ‘The Exegetical and Hermeneutical Work of John Oecolampadius, Huldrych Zwingli and John Calvin’, In Hebrew Bible –​Old Testament. The History of Its Interpretation, ed. by Magne Saebø (Göttingen: Vandenhoeck & Ruprecht, 2008), pp. 438–​51; esp. pp. 44–​ 48; Barbara Pitkin, ‘Calvin’s Mosaic Harmony: Bibilical Exegesis and Early Modern Legal History’, Sixteenth Century Journal, 49/​2 (2010), pp. 441–​66; Erik de Boer, The Genevan School of the Prophets. The congrégations of the Company of Pastors and their Influence in 16th Century Europe, Travaux d’Humanisme Et Renaissance 512 (Geneva: Librairie Droz, 2012), pp. 163–​87. 41 ‘Quemadmodum vero Caeremoniales leges, sic & iudiciales a deo adiectae sunt decalogo ad explicandum & muniendum decalogum’ (Heinrich Bullinger, Sermonum Decades quinque, de potissimis Christianae religionis capitibus, in tres tomos digestae (Zurich, 1552), f. 132v; cf. also f. 36r).

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Mosaic law, but contributed by an even more systematic exegesis. For Calvin (and later theologians and jurists who followed him like Junius) the Mosaic law spread over all five books of Moses and needed a dedicated interpretation. Calvin’s interpretation set in with a differentiation between the historical narration of the books of Moses (historiae narratio) and the doctrine or teachings (doctrina). For Calvin doctrina included the instruction of the church in true piety (vera pietas), in fear for and the cult of God (timor et cultus Dei), and the rules of a sanctified and just life (sancte iusteque vivendi regula). The doctrina in the books of Moses moves everybody to fulfil his or her duty (officium) in life.42 Naturally, the doctrina must also comprise the law of Moses. Here, Calvin differentiated between the four principle parts of doctrina:

–​ the prefaces to the law (praefationes); –​ the Ten Commandments or Decalogue as ‘the rule of a just and holy life’ (a summary of the moral law); –​ the appendices to the Decalogue (French: dependances), namely the ceremonies as appendix to the First Table of the Decalogue, and the political or forensic law as appendix to the Second Table of the Decalogue; –​ and the promises, which were concerned with the aim and purpose of the law.

This new systematic exegesis of Mosaic law by Calvin in the last years of his life became an important backbone of Calvinist interpretations of the law of God. In a sense, Calvin’s approach was understood as a model and template by later generations of Calvinist thinkers.43 For later theologians, jurists, and other scholars it meant an important step toward a comparative study of the political laws of Moses, because individual precepts of the judicial law of Moses could now be related to the Decalogue/​the moral law (natural and divine), as appropriate. But whereas Calvin did not stretch his interpretation so far as to conclude the binding force of certain political laws of Moses, Calvin’s successor and moderator of the Vénérable compagnie des pasteurs in Geneva, 42

43

‘Duae sunt horum quatuor librorum partes, historiae narratio, et doctrina qua instituitur ecclesia in vera pietate, (quae fidem et invocationem in se continet) item in timore et cultu Dei: atque ita sancte iusteque vivendi regula traditur, et urgetur unusquisque ad praestandum officium. Hanc distinctionem non tenet Moses in suis libris, quia nec historiam uno contextu refert: doctrinam vero ipsam sparsim tradit prout tulit occasio’ (Calvini Opera 24, Praef., pp. 7–​8). For a good overview of Calvin’s legal theory, see John Witte Jr., The Reformation of Rights. Law, Religion and Human Rights in Early Modern Calvinism (Cambridge: Cambridge University Press, 2007), esp. pp. 39–​80.

114 Totzeck Theodore Beza (Théodore de Bèze, 1519–​1605), was more open in this regard. He argued in favour of the actual political relevance of certain judicial laws of Moses and published an elaborate collection of these laws in his handbook Lex Dei, moralis, ceremonialis, et politica (1577). Indeed, the only authority that Beza mentioned in this book is his teacher John Calvin. But it is clear that Beza went beyond Calvin with the compilation of the political laws of Moses. Beza collected legal texts from the five books of Moses (including only one quotation from the book of Joshua) by using the common threefold division of the Mosaic law –​now with a Greek terminology: Beza called the moral law ‘ethical law’ (lex ἠθικὴ), the ceremonial ‘priestly law’ (lex ἱερατικὴ), and finally the judicial law of Moses the ‘political law’ (lex πολιτικὴ).44 Apart from the preface Beza added no further extra-​biblical sources and only very short descriptions of his method that were in total not much longer than a page.45 The part on the moral law, which other theologians usually tended to elaborate upon in great detail, only filled a few pages in Beza’s handbook. It is for the most part a synopsis of the different versions of the Decalogue in Ex. 20:1–​17/​Deut. 5:1–​21 and precepts from the Book of Leviticus.46 In total, the focus of the book was clearly on the biblical text itself, and here, especially on the political laws of Moses. In the very part on the political laws of Moses, Beza worked in great detail. He collected political laws out of the Pentateuch, divided them in rubrics and classes, and ascribed them to individual commandments of the Decalogue (lex ἠθικὴ). For instance, political precepts dealing with idololatry were compiled under one rubric and ascribed to the First and Second Commandment of the Decalogue.47 Beza’s book Lex Dei, moralis, ceremonialis, et politica became probably the most important source for Junius’s De politiae Mosis observatione. Junius’s terminology remained very close to Beza’s in some instances. Beside the more common notion of ‘political law’ for the judicial laws of Moses, Junius, just like Theodore Beza, made use of the term ‘ethical laws’ or ‘ethical precepts’ (praecepta ἠθικὰ) for the moral law of Moses, for example.48 Beza remained in so far really important for Junius, as he had emphasised beyond Calvin the enduring exemplary character of the political laws of Moses. Beza had started to do so in his dispute with Sebastian Castellio over the right of magistrates 44

Cf. Theodore Beza, Lex Dei moralis, ceremonialis, et politica, ex libris Mosis excerpta, & in certas classes distributa ([Geneva,] 1577), p. 1. 45 Cf. Ibid., pp. 1, 61 (with a bridge passage about the lex politica). 46 Cf. Ibid., pp. 2–​6. 47 Cf. Ibid., pp. 61–​63. 48 Cf. Junius, De politiae Mosis observatione, Praef., p. 1477.

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to punish heretics (see his De haereticis a civili magistratu puniendis libellus, 1554).49 Junius later joined Beza in speaking of ‘a perfect example of law’ that could be found in the laws of Moses in a political sense.50 And lastly, both Beza and Junius did so because they had similar motives. For them, the interpretation of the law of Moses was never a mere ‘scholarly endeavour’ of theologians. It was rather highly political. 4

Striving towards Consensus in the Debates on the Political Relevance of the Mosaic Laws among Calvinists

Debates on the political relevance of the Mosaic laws were time and again an issue during the Reformation period in Europe. Since the 1550s and 1560s, as we have seen in the case of Theodore Beza, disputes flared up and the key question in these disputes remained in how far the political laws of Moses respectively the judicial laws were abrogated or still binding for the Christian magistracy. Junius’s book De politiae Mosis observatione was part of these disputes. The book title does not display this at a first glance, but the headings of the two parts of the treatise hark back to a theological disputation ‘over the judicial laws of Moses’ that preceded the publication of Junius’s book. The actual 38 theses of the disputation that Junius presided over as professor at the university of Leiden in June 1593, form the first part of the book. The second part comprises long observations based on the 38 theses.51 According to the preface

49

50 51

In the discussion on the application of the judicial laws of Moses (in this case precepts about theft), Beza, for instance, came to the conclusion: ‘Sciendum est vero quamuis istae Legum particulares formulae nunquam ad nos pertinuerint, tamen quum earum author sit Deus ipse iustissimus & aequissimus Legislator, rectissime facere Magistratus, qui, quoties peculiaris aliqua circunstantia vel temporis, vel loci, vel personarum non impedierit, ad Mosaicarum legum perfectissimum exemplar in condendis suis legibus respiciunt’ (Theodore Beza, De haereticis a civili magistratu puniendis libellus, adversus Martini Bellii farraginem, et novorum Academicorum sectam ([Geneva,] 1554), p. 223). Cf. citation above in fn. 49 with, for instance, Junius, De politiae Mosis observatione, p. 1485, th. viii. (‘perfectum exemplum est in lege Mosis’); and Ibid., p. 1499. See also further below fn. 86. The 38 theses that precede the main part of De politiae Mosis observatione are entitled Theses theologicae de legibus Mosis iudicialibus et earum observatione (Ibid., p. 1485–​88). The following part of the book holds the almost identical heading De legibus Mosis iudicialibus et earum observatione (Ibid., pp. 1490ff.). In contrast, the entire book title of De politiae Mosis observatione lacks any references to the judicial laws of Moses. Instead, the book title already points to the political implications of the treatise with its address to the ‘people of God’: De politiae Mosis observatione; Quid in populo Dei observari, quid non

116 Totzeck of Junius’s De politiae Mosis observatione, Junius faced two extreme positions or parties in the debates on the applicability of the judicial laws of Moses. One party endorsed the necessary transfer or direct applicability of the judicial laws in a Christian commonwealth; the opponents voted for a necessary abrogation of the judicial laws of Moses. The latter party argued that exactly like the ceremonial laws, the judicial laws of Moses could no longer be binding for Christians.52 In the preface, Junius did not become specific about these two parties and did not name names, but it is obvious that he spoke about an ongoing debate, to which he was eager to find a systematic answer. And we may add that this way of looking for consensus was typical, particularly for a large group of Calvinist theologians, who only followed in the footsteps of their theological teachers Calvin and Beza, in accordance with whom they still chose their own methods and answers. When we consider books similar to Junius’s De politiae Mosis observatione that focused on the political laws of Moses and the model of the Mosaic polity, the large proportion of Calvinist authors stands out. In England and before Junius, the Calvinist theologian Edmund Bunny was the first to dedicate a treatise, albeit a short one of only 160 pages, to the political laws of Moses and the Mosaic polity respectively ancient ‘Iewish policie’, entitled The scepter of Iudah: or, what maner of government it was, that unto the common-​wealth or Church of Israel was by the law of God appointed (London, 1584). Much more comprehensive than Bunny’s treatise was the book Legum Mosaicarum forensium explanatio (1604) by the Herborn professor of theology and churchman Wilhelm Zepper (1550–​1607).53 The main goal of Zepper’s book was to achieve a consensus in the debates about the application of the Mosaic judicial laws. By far the most comprehensive studies on the subject, however, were the four books (in three parts) of the Scottish theologian and Hebraist John Weemes (c.1579–​1636).54 Indeed, in many parts of these books observari ex ea oporteat, postquam gratia & veritas per Christum facta est, & Euangelio promulgata (Leiden, 1593). 52 Cf. Ibid., Praef., pp. 1476–​77, 1480–​81. 53 Wilhelm Zepper, Legum mosaicarum forensium explanatio. Ubi quaestio, an et quatenus abolitae illae sint, ventilatur; equae legibus illis, circa personas, res & actiones versantibus, in que harmoniae porro formam, juxta praeceptorum Decalogi seriem, digestis, multae quaestiones & materiae; viris tam ecclesisticis, quam politicis, in administratione regni Christi ecclestiastica & politica, scitu necessariae & iucundae eruuntur & evolvuntur (…) (Herborn, 1604); further ed.: Herborn, 1614; Legum mosaicarum forensium siccuntia explanatio, ed. Johann Heinrich Schramm (Herborn, 1714). 54 Weemes, An Exposition of the Morall Law, or Ten Commandements of Almightie God (…), 2 pts. (London, 1636; 11632), in The Workes of Mr. Iohn Weemse of Lathoker in Scotland, vol. 2 (London, 1636/​37); An Exposition of the Ceremoniall Lawes of Moses, As They Are Annexed

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and even in other treatises, Weemes cites Franciscus Junius.55 Weemes must have stayed for some time at the university of Leiden. A disputation on original sin (de originali peccato, 1599) in the faculty of theology bears his name (‚Ioannes Wimesius Scotus‘), and no other than Franciscus Junius presided over this disputation.56 The works of John Weemes were a significant factor for the circulation of Junius’s writings and arguments on the British Island, where Weemes became one of the forerunners of Christian Hebraism.57 Altogether, a majority of Weemes’s works, as well as the treatises of Edmund Bunny and Wilhelm Zepper can be brought into line with the politia-​judaica literature, just as Junius’s De politiae Mosis observatione. So we may conclude: a majority of the authors of the politia-​judaica literature, especially among the theologians at the end of the sixteenth century and beyond, were Calvinists. Several of them were also trained in legal studies and influenced vice versa other jurists in Early Modern times.58 This is especially the case for the writings of John Calvin, Theodore Beza, and –​in similar manner –​Franciscus Junius. To some degree Junius’s treatise De politiae Mosis observatione was the systematic complement of Calvin’s exegesis and Beza’s comparative compilation on the same subject.

55

56 57

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to the Tenne Commandements (…), in The Workes of Mr. Iohn Weemse, vol. 3 (London, 1636/​ 37); An Exposition of the Iudiciall Lawes of Moses, Plainely discovering divers of their ancient Rites and Customes (…) (London, 1636; 11632), in The Workes of Mr. Iohn Weemse, vol. 3 (London, 1636/​37). Cf., for example, Weemes, The Christian Synagogue. Wherein is contained the diverse Reading, The right Pointing, Translation, and Collation of Scripture with Scripture (…) (London, 41633; 11623), in The Workes of Mr. Iohn Weemse, vol. 1 (London, 1636/​37), pp. 31, 37–​38, 44–​45, 83, 144, 167, 173, 276. Franciscus Junius (praes.)/​Ioannes Wimesius [John Weemes] (resp.), Theologicarum disputationum decima nona: de originali peccato (Leiden, 1597). The disputation is dedicated to the humanist and Reformed theologian Andrew Melville (1545–​1622), who himself had taught at the Academy of Geneva and later in the 1570s introduced Hebrew lessons at the universities of Scotland. Cf. Richard Rex, ‘Humanism and Reformation in England and Scotland’, in Hebrew Bible –​Old Testament. The History of Its Interpretation, ed. Magne Saebø (Göttingen: Vandenhoeck & Ruprecht, 2008), pp. 526–​ 27, 12–​13 (with more literature); and Totzeck, ‘Politischer Hebraismus’, p. 226. Cf. Totzeck, Die politische Gesetze des Mose, chap. 2; 4; and Richard J. Ross, ‘Distinguishing Eternal from Transient Law: Natural Law and the Judicial Laws of Moses’, in Past and Present, 217 (2012), pp. 79–​115. See also Christoph Strohm, Calvinismus und Recht. Weltanschaulich-​konfessionelle Aspekte im Werk reformierter Juristen in der Frühen Neuzeit, Spätmittelalter, Humanismus, Reformation 42 (Tübingen: Mohr Siebeck, 2008).

118 Totzeck 5

Separating the Universal and Natural from the Particular: The Mosaic Polity in Junius’s Legal Theory

In his legal theory in De politiae Mosis observatione, Junius remains true to his theological and juridical roots. His work is methodologically sound and not confined to the question of the application of the Mosaic judicial laws only. Rather, Junius begins by sketching out a general theory of law. The long and detailed preface of his book offers thereby two lines of reasoning basic to all of Junius’s further arguments. One line of reasoning concerns the lives of human beings in all their common or particular forms. And the second line of reasoning turns into a general theory of law.59 Junius develops this general theory of law in 38 theses in the main part of his book, moving from the general to the parts of the theory of law. The discussion of the 38 theses comprises eight chapters. After the first chapter (chap. 1.: De iusta legis definitione & divisione) Junius opens the discussion on the judicial/​political laws of Moses at the end of the second chapter (chap. 2: De lege Mosis, et substantia illius in genere) with theses x.-​x ii. Therefore, the major part of all 38 theses in the book is concerned with the judicial respectively political laws of Moses. But in the following six chapters Junius also consistently touches on the other parts of the Mosaic code and goes through several cases of application.60 Junius’s line of reasoning from the general to the particular is strongly systematizising? It corresponds overall with steps that Junius goes through from the consideration of the general questions of law to specific ones regarding the

59

60

The preface sets in with the practical discipline (πρακτικὴ disciplina), which Junius also calls political discipline (politica disciplina), and it ends with a political view on the Christian commonwealth again (cf. Junius, De politiae Mosis observatione, pp. 1473–​1474; 1481–​1484). In the main part of the preface, Junius approaches the topic of Mosaic law and the debates on it historically. Debates on the application of the Mosaic (political) laws already have their origin in ancient times, as Junius argues. It is very much in accordance with Junius’s Christian humanist orientation that he turns to the church fathers as most reliable sources in these questions. For Junius, the most decisive answers on the topic were given in Saint Augustine’s De libero arbitrio. A quote from this source is overall the longest quotation in the whole book De politiae Mosis observatione (cf. Ibid., pp. 1479–​1480). For the sake of completeness and orientation the chapter headings of the next six chapters in De politiae Mosis observatione can be listed here: Cap. iii. De ea parte, quae in Legibus Mosi, iudicialibus & humanis allijs est immutabilis. (Ibid., pp. 1503ff.), Cap. iiii. De ea parte quae in legibus humanis est mutabilis, & de mutationum causis. (Ibid., pp. 1508ff.), Cap. v. De ea parte speciatim, quae in legibus Mosis est mutabilis. (Ibid., pp. 1512ff.), Cap. vi. Quid iuris communis sit in lege Mosis mutabile. (Ibid., pp. 1517ff.), Cap. vii. Quid sit iuris particularis in Mose mutatum aut mutabile simpliciter. (Ibid., pp. 1520ff.), Cap. viii. Quid sit mixti iuris in Mosis legibus mutabile. (Ibid., pp. 1524ff.).

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judicial laws of Moses. The 38 theses mentioned above illustrate this impressively as they are the very foundation of the tract De politiae Mosis observatione:61 Junius starts out with a definition of law (lex) (thesis i.) as ‘an ordering of reason toward the common good’. The one who is in care of the community establishes the law (lex).62 Then, Junius turns to the most comprehensive form of lex, the eternal law (lex aeterna), which is understood as God’s immutable concept and form of reason for the universe, existing before and above all time. God’s eternal law differs from the law that is informed and declared in time (lex informata & tradita in tempore) (th. ii.). According to Junius, the lex informata & tradita in tempore, again, divides into the natural law (lex naturalis) which informs creatures endowed with reason with common notions of nature –​ somewhat –​participating in the lex aeterna through principles and conclusions on one hand, and the law that advenes to nature (naturae adveniens) (th. iii.-​i v.), namely the divine law or human law, on the other hand. The divine law (lex divina) advenes to nature as it is infused (infunditur), whereas the human law (lex humana) advenes to nature as being born from it (adnascitur) (th. v.). What makes the lex divina unique for Junius, is that God infuses the lex divina into rational beings, even transcending reason. This descent from God is comparable to the lex naturalis, but different from the lex naturalis the lex divina also informs rational beings with common and individual notions beyond nature by a supernatural induction toward a supernatural end, viz. salvation (th. vi.).63 How do human beings embrace these different forms of law overall? Reason enables them to accommodate a human law (lex humana) to the lex naturalis and the lex divina through common conclusions (communes conclusiones) or particular determinations (particulares determinationes). Common conclusions are based on just, honest, useful and necessary reasons, whereas the particular determinations conform to persons, things or matters, and circumstances (th. vii.).64 As the lex naturalis and the lex divina, again, proceed from

61 For the following explanations on the first part of the theses, see Ibid., pp. 1485–​1486. 62 ‘Thesis I. Lex est rationis ordinatio ad commune bonum, ab eo qui curam communitatis habet, instituta’ (Ibid., p. 1485). 63 ‘vi. lex divina est, quae inspirata a deo et infusa rationalibus creaturis informat eas notionibus communibus & singularibus supra naturam, ad finem supernaturalem supernaturali ductu transmittendas’ (Ibid.). 64 ‘vii. lex humana est, quam ferunt homines ratione procedentes ab illis legibus, tum ad communes conclusiones iustas, honestas, vtiles, & necessarias, tum ad particulares determinationes conditioni personarum quarum bono fertur, rerum negotiorumve de quibus fertur, & circumstantiarum quae eis accidunt accommodas’ (Ibid.).

120 Totzeck the eternal law, the ‘immutable archetype of law’,65 one may conclude, that all ‘good’ laws ultimately derive from its source, the eternal law of God. After this differentiation Junius draws our attention to the actual discussion of the laws of Moses. The Mosaic corpus of law is viewed as a perfect model and example (perfectum exemplum) of law, including the natural law (lex naturalis), divine law (lex divina), and human law (lex humana) (th. viii.). The theses following thereafter all touch on the question of the application of Mosaic law. In the case of the lex naturalis and lex divina answers can be given easily (th. ix.). Regarding the lex humana and the Mosaic judicial laws (th. x.-​xi.), however, further differentiations are needed (th. xii.-​xxxvii.).66 Before we can go into detail about the application of the Mosaic political laws to specific circumstances, it is useful to probe Junius’s differentiation between the natural law, the divine law, and human law a little further. In thesis viii. Junius links this differentiation to the common threefold division of the Mosaic law into moral law, ceremonial law, and judicial or political laws.67 For each type of law there exists a perfect example (perfectum exemplum) in the law of Moses according to Junius. He, then, further allocates: the natural law is declared in the moral commandments, the divine law in ceremonies as proofs or documents of grace (documenta gratiae), and the human law in political and judicial precepts. This allocation, however, should not be understood as one mutually exclusive in Junius’s argumentation. The divine authorship of all parts of the Mosaic law already speaks against such an understanding (in this sense, one could also speak of all Mosaic laws as divine laws). Apparently, Junius does define a ‘more narrowly conceived’ divine law, consisting of proofs or documents of grace (documenta gratiae), perspicuous precepts (praecepta perspicua), types (typi), and ceremonies (ceremoniae).68 Junius calls this 65 Ibid., p. 1497. 66 Cf. Ibid., pp. 1486–​1488. 67 The English translation of thesis viii in the new edition of Todd M. Rester/​Andrew McGinnis seems to be misleading at this point. Junius does not speak of ‘a perfect example of these human laws in the law of Moses’, but ‘of these laws’ (harum legum) (cf. Ibid., p. 1485, th. viii. with engl. ed. Rester/​McGinnis, p. 30) meaning the aforementioned lex aeterna (th. ii.), lex naturalis (th. iiii.), lex divina (th. vi.), and lex humana (th. vii.). Junius himself explains in his observations on thesis viii that in ‘this law of Moses (…) there is a perfect example of all those laws. (…) The law of Moses has been made according to the pattern of the eternal, natural, divine, and human law’ (Ibid., 1498,87–​1499,3; Engl. cit. ed. Rester/​McGinnis, p. 60). Maybe this correction solves the translator’s own thoughts about the inconsistency of the thesis in the English edition (cf. ed. Rester/​McGinnis, p. 60, n3). 68 ‘Nam cum lex diuina supernaturalis sit a Deo proficiscens: lex autem Mosis sit ea ipsa lex quam Deus illis temporibus attribuit Ecclesiae suae, vt documenta supernaturalia gratiae, tum praeceptis perspicuis, tum etiam typis & ceremoniis exponeret; nec alia vlla lex fuerit

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narrowly conceived divine law (lex divina) also supernatural divine law (lex divina supernaturalis), a law that God himself allotted to his church. However, Junius does not explain, what the perspicuous precepts (praecepta perspicua) actually comprise. It is conceivable that he refers to the Ten Commandments and teachings of Christ, for example. But detailed explanations are missing. The same is the case for the natural law, which is differentiated from the supernatural divine law. For Junius natural law is universally valid and the law of Moses expresses ‘principles and conclusions of the natural law’, which he also calls ‘common notions of nature’; but it is not clear to the last detail what the natural law really comprises.69 The reader only learns that after the Fall of Man and the corruption of the common notions of nature in humans (Rom. 2), a perfect and pure declaration of the natural law can still be found in the Mosaic law, which was confirmed by Christ himself (Matt. 5).70 This indicates a clear turn toward the written law of God at the cost of a detailed theory of conscience and natural law. Whether this was typical for Calvinist theologians and the overall politia-​judaica literature is arguable. For example, just like the already mentioned Calvinist theologian and Hebraist Corneille Bertram in his influential book De politia judaica (1574), Junius made use of the ancient natural law concept of innate common notions (κοιναὶ ἔννοιαι or προλήψεις).71 Both authors remained sceptical of a profound human capacity regarding these common notions after the Fall of Man. That is why the divine authority of the written law of Moses is emphasised, ‘as it delivers the natural and divine law by renewing the ancient principles, restoring what has been lost, communicating what is unknown, and revealing divine things in a human way’.72 Nevertheless, Junius abided by the natural and rational capacity of humans for clear judgments and conclusions based on the legal texts of the Mosaic law. There remain some tensions in Junius’s distinctions between the divine, natural, and human law in their relation to the Mosaic law. But Junius strives to solve these tensions through another systematisation of the law of Moses. Herein, Junius’s solution is unique in Reformed theology: he distinguishes the olim a Deo data, aut post ipsius Christi Apostolorumque testimoniis confirmata; omnino ex eo statuimus perfectum exemplum diuinae legis illius, quam Deus inde a principio gratiose communicauit cum Eccesia (sic!) sua, in lege Mosis exsistere, velut certissimo diuinae illius legis & supernaturalis symbolo, cui supernaturale testimonium multis saepissimeque perhibuit Deus’ (Ibid., p. 1499,73–​85). 69 Cf. Ibid., p. 1499,18–​24. 70 Cf. Ibid., p. 1499,24–​70. 71 Cf. Ibid., p. 1493,74–​82 with Bertram, De politia judaica, tam Ciuili quam Ecclesiastica: pp. 11–​ 14 =​f. a.iij.v-​[a.iiij.r]. 72 Ibid., p. 1501,31–​35; Engl. cit. ed. Rester/​McGinnis, pp. 65–​66.

122 Totzeck immutable (immutabilis) from mutable (mutabilis), eternal from temporary, and general from particular laws. This applies to the judicial laws of Moses and to the other parts of the Mosaic law as well. Actually, even the common threefold division of Mosaic law, Junius argues, has never been absolute in the form of the biblical tradition. Readers of the bible would rather detect a majority of Mosaic laws that do not have a ‘pure’, but rather a ‘mixed’ form, meaning, they are partly moral, ceremonial, and judicial in various forms.73 How Junius really conceived this mixed form of Mosaic laws can be illustrated in the following with the help of one of the examples that he chooses at the end of his book: the right of asylum in the case of an homicide and the creation of cities of asylum for the accused ones in Num. 35:9–​34 and Deut. 19:1–​10.74 The parallel passages Num. 35:9–​34/​Deut. 19:1–​10 firstly draw distinctions between murder, the voluntary killing, and involuntary killing of a person as different forms of homicide. Secondly, the passages list corresponding forms of litigation and punishments for the perpetrators. For instance, a homicide, in which a person is killed, because someone shoves another out of hatred or throws something at them intentionally so that they die (Num. 35:20), is differentiated from a homicide, in which no harm was intended, but was rather caused unintentionally (Num. 35:22–​23). Accordingly, the Mosaic law, which Junius refers to, makes a difference between blood revenge, respectively the death sentence, in the case of a murder on one hand, and on the other hand, an asylum for perpetrators in refuge cities for their own protection, followed by a regular legal procedure in the case of an involuntary homicide, respectively homicide by accident. For Junius the legal passages in the Mosaic code clearly show, how moral, ceremonial, and political respectively judicial parts of the Mosaic law are gathered in a mixed form. The moral part of Num. 35:9–​34/​ Deut. 19:1–​10 is also according to the common law: the legal procedure and method must be observed, as anyone who wilfully commits a murder must be sentenced to death; and on the other side the safety of the one who did not do it wilfully or by accident must be cared for. The related judicial respectively political law that arises for Junius would be the provision that a regular legal procedure lays in the hands of the assembly that decides over the cases (Num. 35:24–​25). Since this principle can already be derived from the moral law, it cannot be a particular and temporary law for the Jewish people only, but it must also be a common law.75 The same, however, does not apply to the 73 Cf. Ibid., p. 1524,30ff. 74 Cf. for the following citations Ibid., pp. 1527,89–​1528,41. For the reader’s orientation the biblical verses were added in the following by the author, mt. 75 Cf. Ibid., p. 1528,17–​22.

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provision that conditions the right of asylum in refuge cities to the lifetime of a high priest (Num. 35:28), because in this case, a ceremonial part of the law was mixed with a judicial law. This ceremonial part of the law can no longer be valid, because the coming of Christ has caused the abrogation of the ceremonial laws of Moses and has given them a mere figurative character in Junius’s eyes. But Junius can still add, there continues to exist ‘an example of the divine things in the ceremonial laws’76 of Moses. Whenever Junius spoke of an ‘example’ (exemplum) of law, he did not mean the ‘expressed’ or ‘distinctly defined form’,77 but a sort of guiding principle that was given in the Mosaic law. In this case, he turned to Greek terminology and spoke of an ‘ectype’ (ἔκτυπον) in the Mosaic law.78 Junius used the word ‘ectype’ for an example of the divine and natural law. For an example of the human laws, he employed the term ‘antitype’ (ἀντίτυπον), because a human law in itself could only be a sort of replica or ‘reproduced’ counterpart of the divine and natural law for Junius.79 Thus, the terminology and the image of ‘ectypes’ and ‘antitypes’ would only sharpen Junius’s differentiation between the immutable and mutable, eternal and temporary, general and particular laws of Moses. In the end these differentiations in his legal theory, most obvious in the aforementioned example, enabled him to carve out not only the valid parts of the moral law, but also of the judicial respectively political parts of the Mosaic code. Some of the political laws of Moses were still binding for Junius and in accordance with the common civil law, respectively the reasonable and universal moral and natural law. Junius was eager to demonstrate this with several examples and comparisons. However, he did not develop a whole compilation of the valid political laws of Moses. His focus was rather on a systematic approach to the Mosaic political laws and a method for the legislation to distinguish the reasonable common and natural parts of the political laws of Moses, which ultimately derive from God and the eternal law, from the transient parts. This method was meant to establish public order and quiet consciences for all Christians. Junius’s method and overall concept of law was influenced by Stoic philosophy and Neostoicism, as Tobias Sarx has argued convincingly,80 and it remained highly rational. In the last two sections, we were able to further specify Junius’s humanist and Calvinist background that influenced this method 76 Ibid., p. 1477; Engl. cit. ed. Rester/​McGinnis, p. 11. 77 Cf. Ibid. 78 Cf. Ibid., p. 1500,68–​83. 79 Cf. Ibid., p. 1500,73–​77. 80 Cf. Sarx, Franciscus Junius d Ä., pp. 98–​99, 280.

124 Totzeck and legal theory. Well-​educated in humanist jurisprudence, Junius turned to Roman law principles and considered the common law (ius commune) as well as common reason and analogical interpretations of law as universal guidelines.81 He also relied on his teachers Calvin and Beza with their inner biblical interpretations of the political and ceremonial laws of Moses as appendices of the Decalogue respectively the common moral/​ethical law of Moses. This is evident, for example, when Junius relates political (and ceremonial) parts of the pure or mixed laws of Moses back to the Decalogue as the summary of moral and natural law. Aside from the example of a mixed Mosaic law cited above, he covers three further examples of mixed Mosaic laws at the end of his book, which are likewise related to commandments of the Decalogue (the moral law)82: precepts concerning the observance of the sabbath (cf. Exod. 20:9–​11; Deut. 5:14 with i.a. Exod. 31:14–​15),83 the purification for a homocide when the perpetrator is unknown (cf. Deut. 21:1–​9),84 and the cases of apostasy (cf. Deut. 13; Deut. 17:2–​7).85 The last example concerning the validity of Mosaic political laws on the punishment and death sentence for apostasy at the end of the book is by far the longest and again leads back to Junius’s theological teachers John Calvin and Theodore Beza. Calvin and Beza addressed these particular Mosaic laws in their disputes with Michel Servet and Sebastian Castellio and held on to their validity in the case of apostasy.86 Beza, as we have seen, even 81 82

Cf. Junius, De politiae Mosis observatione, p. 1517,47–​91. Junius, however, does not always recite the pertained commandments of the Decalogue in each case again. 83 Cf. Junius, De politiae Mosis observatione, pp. 1526,40–​1527,88. 84 Cf. Ibid., p. 1528,41–​64. 85 Cf. Ibid., pp. 1528,65–​1531,45. 86 It is often overlooked in research that three of Michel Servet’s Thirty Letters to Calvin (Epistolae triginta), which were later printed in his anonymous Christianismi restitutio (1553), already touched on the question of the validity of the Mosaic laws and the overall meaning of the Mosaic polity for Christians (cf. letters No. 23, 25, and 26 in Servet, Epistolae triginta ad Ioannem Calvinum gebennensium concionatorem, Calvini Opera 8 /​ Servet, Christianismi restitutio: totius ecclesiae apostolicae est ad sua limina vocatio (…), pp. 577–​664). Referring to the apostle Paul, Servet had already argued in these three letters, for instance, that the whole Mosaic polity was deleted for Christians and should not be rebuilt again: ‘Deleta est tota illa Mosis politia, ut non liceat nobis ea quae destructa sunt reaedificare, teste Paulo. Lex puero aut servo data cessat, ubi ex servo fit liber, aut a puero transit in virum, a paedagogi et domini prioris exemptus potestate’ (cf. Servet, Epistolae triginta, Calvini Opera 8, p. 707). In letter No. 27 Servet invokes the teaching of Christ against a death sentence in the case of heresy and recommends exile or excommunication as remedies (cf. Ibid., pp. 708–​709). When Calvin defended the orthodox doctrine of the Trinity against Servet and argued for the observance of the death sentence as a last resort against apostasy and heresy respectively, he on the other side not only referred to the Roman and common law relevant in these cases, but also to the bible and the judicial/​

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went beyond Calvin when he concluded not only the validity of these law, but also the overall exemplary character of the political laws of Moses. There are no concrete references to these disputes, but Junius’s arguments are similar. Is there maybe even more behind Junius’s silence over these disputes and other specific confessional differences in his book De politiae Mosis observatione? 6

A Sacred Polity as a Political Argument: Junius’s Answer on the Debates on Church and State at His Time

The preface of Franciscus Junius’s De politiae Mosis observatione is dated Leiden, October 11, 1593. Junius dedicated his book to the States of Holland. So, besides the wider contexts of the humanist and Calvinist tradition of the treatise, we, of course, have to consider that the text also belongs to the closer political context of Holland and the ongoing debates on church and state at that time there. If we were able to go into detail about Junius’s own biography, we would also observe a legally trained theologian in the middle of similar debates and confessional controversies elsewhere.87 We would be able to outline his own experiences as a religious refugee in the French Reformed Church and during the time of confessional controversies in Heidelberg and the Palatinate, where Junius served as a university professor and was later in 1578 driven out of Heidelberg to the newly Reformed collegium at Neustadt with other Reformed colleagues, who refused to sign the Lutheran Confession (the Formula of Concord, 1577).88 We would see, how Junius was himself on diplomatic missions for the duke of Bouillon in France and Germany and in close

87 88

political laws of Moses (i.a. Levit. 24; Deut. 13) (cf. Calvin, Defensio orthodoxae fidei de sacra Trinitate contra prodigiosos errores Michaelis Serveti Hispani (1554), Calvini Opera 8, pp. 453–​644, at pp. 461–​481; Christoph Strohm, Johannes Calvin. Leben und Werk des Reformators (München: Beck, 2009), pp. 81–​89). Thereafter, the discussion about the validity of the Mosaic judicial/​political laws was deepened by Sebastian Castellio (cf. [Castellio], De haereticis an sint persequendi ([Basel,] 1554)), who took Servet’s side, and by Theodore Beza on Calvin’s side (cf. Beza, De haereticis a civili magistratu puniendis libellus, see above fn. 49–​50; cf. Uwe Plath, Der Fall Servet und die Kontroverse um die Freiheit des Glaubens und Gewissens. Castellio, Calvin und Basel 1552–​1556, Begleitband zur Bibliothek historischer Denkwürdigkeiten (Essen: Alcorde Verlag, 2014), pp. 160–​176). ‘Junius ist in hohem Maße vom eigenen Erleben der Konfessionskonflikte geprägt worden’ (Sarx, Franciscus Junius d.Ä., p. 35). Junius served as Hebrew teacher in Neustadt and as pastor in Otterberg for several years, but he returned to Heidelberg again and became university professor in theology after the ‘Lutheran interim period’ under Elector Palatine Ludwig vi., who died in 1583 (cf. Ibid., pp. 34–​35).

126 Totzeck contact with the king of France, Henry iv of Navarre, during and at the end of the Huguenot wars.89 Overall, we would rest convinced that behind Junius’s comments on the struggles between church and magistrate, between theologians and jurists, in the preface of his tract De politiae Mosis observatione, stands a long personal experience with the subject. When we ultimately consider the closer context of the Dutch Republic and the Academia Lugdensis Batavorum, the question arises, in how far Junius’s treatise could have been an attempt to bring peace to the religious controversies and socio-​political struggles of his time. Does Junius’s De politiae Mosis observatione even fit Mark Somos’s thesis, that ‘after its memorable foundation in 1575, Leiden university became the hothouse of secularising thought until 1618 to 1619, when the Calvinist purge destroyed this experiment, and exiled or executed the leading figures of Dutch secularisation’?90 Somos has described in detail, how the country fragmented along several fault lines, when it actually required a closer union during the time of the Eighty Years’ War against the Habsburg Empire (1568–​1648).91 These fault-​lines included socio-​economic differences, opposition between Catholics and Protestants, between the North and South respectively the southern provinces under Spanish influence and the seven united provinces in the North, known as the Dutch Republic.92 Even here, in the North, Protestants were divided again, especially over the debates on church and state and the doctrine of predestination, which in the first decades of the seventeenth century after Junius’s death evolved into the well-​known conflict between the so-​called Remonstrants (Arminians) and Counter-​Remonstrants. These conflicts and ongoing debates, of course, affected Junius’s own writing and to some extent Junius now continued to refine his concept of politics and law, stemming from the different contexts that he had written in previously. Just before the publication of his treatise De politiae Mosis observatione, Junius addressed the personal dimension of this question with a mirror of princes addressed to Frederick iv, Elector Palatine of the

89 90

Cf. Rester/​McGinnis, ‘Introduction’, p. xxiv. Cf. Mark Somos, Secularisation and the Leiden Circle (Leiden/​Boston: Brill, 2011), p. 8. See also on the definition of ‘secularisation’ that Somos prefers: ‘Secularisation (…) refers to the process of gradual, and often unintentional, removal of Christian theology from all aspects of thought’ (Ibid., p. 4). 91 Cf. Ibid., pp. 7–​8. 92 Cf. Ibid., p. 8. For a broader overviev see also Jonathan I. Israel, The Dutch Republic: Its Rise, Greatness, and Fall, 1477–​1806 (Oxford/​New York: Oxford University Press, 1998), pp. 179–​477.

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Rhine.93 His Eirenicum: de pace Ecclesiae Catholicae inter Christianos (1593) printed in the same year as De politiae Mosis observatione became even more famous. Junius’s Eirenicum was an attempt to bring peace to the confessional conflicts and religious wars of his time and meant the birth of an Early Modern irenic theology, which endorsed the potential for peace within the Christian religion.94 With the turn to the written law of God (ius scriptum) respectively the Mosaic law and the orientation around the sacred polity of Moses in De politiae Mosis observatione Junius added a new facet to his arguments in the context of the Dutch Republic and the university of Leiden. To the believers he wanted to explain the true nature of God’s kingdom, by separating the universal from the particular in the Israelite state under Moses, only to be able to refrain Christian activists (e.g., the two extreme parties that he mentioned in the preface of his book) from intruding upon the territory of politics. By nature and common law all Christians, and not only theologians, are able to clarify which parts of the Mosaic political laws are to be respected, Junius argued. It is arguable whether the term ‘secularizing’ that Mark Somos suggests for the context of the Dutch Republic and the university of Leiden is really fitting in this case. The Christian state that Junius presumes has clear boundaries. The laws of Moses, as argued above, provided for a strict punishment for apostasy in Junius’s eyes, for example. But again, even here Junius remained open in his formulations: He did not touch on confessional differences; apostasy was understood as a desertion from the ‘true God to the false gods’ against ‘piety and religion’.95 Thus, in Junius’s eyes, the turn toward the ancient and sacred polity of Moses could only be useful for a trans-​confessional view on the Christian state and its legislation in particular. His book also demonstrates in the best of ways that this trans-​confessional view included a distinction and cooperation between an ‘earthly and civil realm’ (politia) and the ‘ecclesiastical realm’ (ecclesia). In the preface of his treatise, Junius distinguishes clearly between politia as a political entity and ecclesia as an ecclesiastical entity, without ignoring the cooperation between the two entities in society. Here, Junius expressly underlines that both entities are not to be confused (communicatio instead of confusio)!96 Parallel to the 93 Junius, Psalmus CI., principis Christiani institutio. A Davide rege et viro Dei perscripta: et aperta analysi commodaq[ue] ad rationes temporum nostrorum commentatione (Heidelberg, 1588?/​1592); cf. also Sarx, Franciscus Junius d.Ä., pp. 97–​108. 94 Junius, Eirenicum de pace ecclesiae catholicae inter Christianos, quamvis diversos sententiis, religiose procuranda, colenda, atque continenda, in Psalmos Davidis CXXII & CXXXIII Meditatio (Leiden, 1593); cf. also Sarx, Franciscus Junius d.Ä., pp. 109–​138. 95 Junius, De politiae Mosis observatione, Praef., p. 1530,70–​81. 96 See the following fn. 98.

128 Totzeck differentiation between the politia and ecclesia as entities, he also contrasts political authorities (magistratus) and the authorities of the church (servus Dei, administer Christi or minister ecclesiastico).97 The magistrate governs the ‘human society’ (societas hominum), whereas the servants of God direct the ‘communion of saints’ (communio sanctorum). Both, the magistrate and the servants of God, ultimately head toward the ‘haven of salvation’ (portus salutis) –​but in different forms.98 In this sense, Junius makes a distinction between jurists and theologians as well.99 Jurists or lawyers stand more on the side of the magistrate who are in charge of the establishment of the political order, whereas theologians or ‘servants of God’ are concerned with the sacred order and the instruction of conscience.100 As a learned legal scholar and professor of theology, Junius could have positioned himself on both sides in this case. But in his treatise, he raises his voice as theologian101 –​meanwhile, a theologian who was well trained in legal studies. For Junius, both jurists and theologians contributed in their own way yet jointly to the public interest. So even when Junius positioned himself on the side of the theologians and spoke of the ‘boundaries’ that God has placed around his office,102 he was at the same time full of hopes that his treatise would become beneficial for jurists and men in public offices, and not just for theologians.103 And these hopes were definitely fulfilled, when we reconsider

97

Cf. Junius, De politiae Mosis observatione, Praef., pp. 1481–​1483. See also the parallel differentiation between politia and ecclesia: ‘Atque haec quidem secundum naturam functionis suae communia sunt vtrique hominum generi, qui in politia, & Ecclesia praesunt: nam & regulam publico exhibent, & auctoritatem adiunctam habent’ (Ibid., Praef., p. 1483). 98 ‘Nam & Magistratus suo ordine politico ad portum salutis aeternae societatem suam adspirantem iuuat; & Minister Ecclesiastico, per fretum societatis humanae, opemque Magistratus boni: Magistratus in hac vita regit, Minister per hanc ad illam dirigit. Hinc fit, vt multarum quoq[ue] actionum aliqua sit inter hos ordines communicatio, non autem (ut ἀβδηρολόγοι & ambitiosi putant) confusio. Quid enim confusioni cum ordine? quid luci cum tenebris? Ordinem vnum altero iuuari volo, non perimi: vtrumque seruari, non perdi: cupio vt sua cuique natura, suus modus, & sui fines constent contra imprudentiam & improbitatem hominum temere in alto ludentium, tamquam si in portu agerent’ (Ibid., Praef., pp. 1483–​1484). 99 Cf. Ibid., Praef., pp. 1481, 1484. 100 Cf. Ibid., Praef., p. 1482. 101 Cf. Ibid., Praef., p. 1484. 102 Cf. Ibid., Praef., p. 1481. 103 At one point, when Junius alludes to the motivation for his treatise, it even appears that a group of legally trained persons encouraged him to write the book: ‘Ego prior scribere institui, non forte rogatus prior; sed tamen a bonis etiam rogatus qui iuri dant operam’ (Ibid., Praef., p. 1484).

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Junius’s influence, for example, on the polymath, theologian, and jurist Hugo Grotius and the jurist Johannes Althusius. Junius’s treatise had its own attraction or even fascination for jurists, because it presented a relatively short, and at the same time highly rational systematisation of Mosaic law that was in accordance with civil law, and especially the Roman law tradition. It enabled theologians as well as jurists to track down those parts of the Mosaic code that were still valid for common civil law. Especially at this point, prominent jurists like Johannes Althusius, for instance, followed Franciscus Junius’s arguments.104 Junius’s legal theory was based on one main argument: all ‘good’ laws for humans and communal life derived from the eternal law (lex aeterna) of God. God had left behind exemplary imprints from this eternal law in the written form of the Mosaic polity, or as we may say: the Mosaic constitution. In other words, Junius wanted theologians as well as jurists and political authorities to turn to the source of their arguments: God’s written law itself as a kind of blueprint for the right political form. The legislation was key for him to address the public order (primarily jurists and the magistrate) and the conscience of Christians (primarily the office of theologians). At no point did Junius hint at a direct realisation of this blueprint for the formation of the Christian commonwealth. But one may still call Junius’s approach a ‘theocratic argument of law’ in the ongoing debates on church and state, when we take the legacy of the term ‘theocracy’ (Josephus) into account.105 Junius documented the rule of the Mosaic legislation with its common and natural principles binding for Christians. In this respect, his treatise De politiae Mosis observatione was part of a much broader humanist and Calvinist tradition of the politia-​judaica literature that influenced Early Modern political and legal thought. So we may conclude, years before Hugo 104 Even though Althusius strives to point out a (Protestant) theological consensus in the handling of Mosaic law in his Politica methodice digesta, the overweight of Reformed theologians that he cites on this subject is obvious. More than Rester/​McGinnis, ‘Introduction’, pp. xlv-​xlvi suggest, I would also argue that among those Reformed theologians Junius’s De politiae Mosis observatione stands out as cited source when it comes to the systematisation and application of Mosaic law. See, for instance, with sometimes more than one citation per page: Johannes Althusius, Politica methodice digesta atque exemplis sacris et profanis illustrata. Cui in fine adiuncta est Oratio panegyrica de utilitate, necessitate et antiquitate scholarum (3rd ed. Herborn, 1614), xxi.40 (pp. 421–​422); xxii.1–​2 (pp. 425–​ 426), 6 (pp. 427), 8 (pp. 428–​429), 9 (pp. 429–​430), 10 (p. 430). Besides Junius the Reformed theologian Girolamo (Hiernonymus) Zanchi (1516–​1590) remains an important source for Althusius in regards to these questions as well: See Ibid., xxi.29 (p. 414), 31–​33 (pp. 414, 416); xxviii.53 (p. 597). 105 Cf. Wolfgang Hübener, ‘Die verlorene Unschuld der Theokratie’, In Religionstheorie und politische Theologie, vol. 3, ed. Jacob Taubes (München: Fink, 1987), pp. 29–​64.

130 Totzeck Grotius and Petrus Cunaeus turned to the role model of the Mosaic polity and made use of the term ‘theocracy’ in the history of pre-​modern political thought, it was Franciscus Junius who paved the way for the idea that the Mosaic polity was a perfect, God-​given example of law.106

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Primary Literature

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106 Junius calls the Mosaic polity also a ‘republic that God instituted’ (‘respublica quam instituit Deus’, Ibid., Praef., p. 1476, cit. with changed cases, mt). For Cunaeus’s and Grotius’s later use of the term ‘theocracy’ (θεοκρατία), see Petrus Cunaeus, De republica Hebraeorum: libri III. Hebraea & Graeca omnia verbo tenus reddita Latine sunt: aut, postquam relata anunde sententia eorum est, apponuntur: ut tardare haec res lectorem non possit (Leiden, 1617), Praef. f. *2r-​v; pp. 5–​8; p. 355 (here: ‘divina Mosis politia exemplum’); Hübener, ‘Dossier: Texte zur Theokratie’, in Religionstheorie und politische Theologie, ed. Taubes, pp. 79–​80.

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132 Totzeck Junius, Franciscus (praes.)/​Ioannes Wimesius [John Weemes] (resp.), Theologicarum disputationum decima nona: de originali peccato. Leiden, 1597. Kahl (Calvinus), Johann, Themis Hebraeo-​Romana, id est iurisprudentia Mosaica, et iuris tum canonici, tum civilis, Romana, inuicem collata; et methodice digesta. (…) Hanau; Frankfurt/​Main, 1595. Lelong, Jacques, Bibliotheca sacra: seu Syllabus omnium Sacrae Scripturae editionum in binos syllabos distincta (…), 2 vols. Paris, 1723. Ragueau (Raguel[lus]), François. Leges politicae, ex sacrae iurisprudentiae fontibus haustae, collectaeque & ob commodiorem usum, ad formam Iustinianei Codicis digestae, ac per Titulos, Edictique perpetui seriem concinnatae. Frankfurt/​Main, 1577, further ed.: Frankfurt/​Main, 1586; Ragueau/​Abraham Saur, Leges Politicae Divinae: Das ist/​Von Allen Buergerlichen Satzungen oder Rechten/​erklaerung. Frankfurt/​Main, 1581; also under the title: Lex Politica Dei …, (Frankfurt/​Main, 1587; 1596); Ragueau/​ Laurent Bouchel, Leges politicae ex sacrae scripturae libris collectae. Paris, 1615. Sigonio, Carlo, De republica Hebraeorum libri VII. Bologna, 1582; further ed.: Bologna, 1583; Frankfurt, 1585; Hanau, 1608; Middelburg, 1676; 1678; Helmstedt, 1685; 1686; Leiden, 1701; Frankfurt, 1783. Stephani, Joachim, De iurisdictione, et qualis fuit in politia Iudaica, Liber primus. Greifswald, 1582. Stephani, Joachim, De iurisdictione Judaeorum, Graecorum, Romanorum et ecclesiasticorum libri IV. Frankfurt/​Main, 1614; further ed.: Frankfurt/​Main, 1661. Tremellius, Immanuel/​Junius, Franciscus, Testamenti veteris Biblia sacra sive libri canonici priscae Iudaeorum Ecclesiae a Deo traditi, Latini recens ex Hebraeo facti, brevibusque scholiis illustrati (…) . Frankfurt/​Main, 1579. Weemes, John. The Workes of Mr. Iohn Weemse of Lathocker in Scotland, in foure volumnes. Containing these nine Bookes (…) London, 1636/​1637. Welwood, William, Iuris divini Iudaeorum ac iuris civilis Romanorum parallela. Leiden, 1594. Zepper, Wilhelm, Legum mosaicarum forensium explanatio. Ubi quaestio, an et quatenus abolitae illae sint, ventilatur; equae legibus illis, circa personas, res & actiones versantibus, in que harmoniae porro formam, juxta praeceptorum Decalogi seriem, digestis, multae quaestiones & materiae; viris tam ecclesisticis, quam politicis, in administratione regni Christi ecclestiastica & politica, scitu necessariae & iucundae eruuntur & evolvuntur (…) Herborn, 1604; further ed.: Herborn 1614; Legum mosaicarum forensium siccuntia explanatio, ed. Johann Heinrich Schramm. Herborn, 1714.



Secondary Literature

Assmann, Jan, Moses der Ägypter. Entzifferung einer Gedächtnisspur [Orig.: Moses the Egyptian: The Memory of Egypt in Western Monotheism, Cambridge, MA, 1997] Frankfurt/​Main: Fischer Taschenbuch, 72011.

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Blacketer, Raymond A., ‘Calvin as Commentator on the Mosaic Harmony and Joshua’, in Calvin and the Bible, ed. by Donald K. McKim. Cambridge: Cambridge University Press, 2006. Boer, Erik de, The Genevan School of the Prophets. The Congrégations of the Company of Pastors and Their Influence in 16th Century Europe. Travaux d’Humanisme Et Renaissance 512. Geneva: Librairie Droz, 2012. Campos Boralevi, Lea, ‘Mosè legislatore’, Il Pensiero Politico , 40/​2 (2008), pp. 268–​282. Campos Boralevi, Lea, ‘Per una storia della Respublica Hebraeorum come modello politico’, in Dalle ‘Repubbliche’ elzeviriane alle ideologie del ’900. Studi di storia delle idee in età moderna e contemporanea, ed. by Vittor Ivo Comparato and Eluggero Pii. Florence: Leo S. Olschki, 1997. pp. 17–​33. Campos Boralevi, Lea, ‘Politia Judaica’, in Politisch-​Rechtliches Lexikon der Politica des Johannes Althusius. Die Kunst der heilig-​unverbrüchlichen, gerechten, angemessenen und glücklichen symbiotischen Gemeinschaft, ed. by Corrado Malandrino and Dieter Wyduckel. Berlin: Duncker & Humblot, 2010. pp. 281–​91. Cuno, Friedrich Wilhelm, Franciscus Junius der Ältere, Professor der Theologie und Pastor (1545–​1602). Sein Leben und Wirken, seine Schriften und Briefe. Amsterdam: Von Scheffer & Co., 1891. Frakes, Robert M., Compiling the Collatio Legum Mosaicarum et Romanarum in Late Antiquity, Oxford Studies in Roman Society and Law. Oxford: Oxford University Press, 2013; 1st ed. Oxford, 2011. Franklin, Julian H. Jean Bodin and the Sixteenth-​Century Revolution in the Methodology of Law and History. New York: Columbia University Press, 1963. Grafton, Anthony, What Was History? The Art of History in Early Modern Europe. Cambridge: Cambridge University Press, 2007. Hübener, Wolfgang, ‘Die verlorene Unschuld der Theokratie’, in Religionstheorie und politische Theologie, vol. 3, ed. by Jacob Taubes. Munich: Wilhelm Fink/​Ferdinand Schöningh, 1987. pp. 29–​64. Hübener, Wolfgang, ‘Dossier: Texte zur Theokratie’, in Religionstheorie und Politische Theologie, vol. 3, ed. by Jacob Taubes. Munich: Wilhelm Fink/​Ferdinand Schöningh, 1987. pp. 78–​126. Israel, Jonathan I., The Dutch Republic: Its Rise, Greatness, and Fall, 1477–​1806. Oxford/​ New York: Oxford University Press, 1998. Kelley, Donald R., ‘Historia Integra. François Baudouin and His Conception of History’, Journal of the History of Ideas, 25/​1 (1964), pp. 35–​57. Laplanche, François, ‘Christian Erudition in the Sixteenth and Seventeenth Centuries and the Hebrew State’, Hebraic Political Studies 3/​1 (2008), pp. 5–​18. Manuel, Frank Edward, The Broken Staff. Judaism through Christian Eyes. Cambridge, MA/​London: Harvard University Press, 1992.

134 Totzeck Nelson, Eric, The Hebrew Republic. Jewish Sources and the Transformation of European Political Thought. Cambridge, MA/​London: Harvard University Press, 2010. Neuman, Kalman, ‘Political Hebraism and the Early Modern “Respublica Hebraeorum”: On Defining the Field’, in Hebraic Political Studies, 1/​ 1 (2005), pp. 57–​70. Opitz, Peter, ‘The Exegetical and Hermeneutical Work of John Oecolampadius, Huldrych Zwingli and John Calvin’, in Hebrew Bible –​Old Testament. The History of Its Interpretation, ed. by Magne Saebø. Göttingen: Vandenhoeck & Ruprecht, 2008. pp. 407–​51. Pitkin, Barbara, ‘Calvin’s Mosaic Harmony: Bibilical Exegesis and Early Modern Legal History’, Sixteenth Century Journal 49/​2 (2010), pp. 441–​66. Plath, Uwe, Der Fall Servet und die Kontroverse um die Freiheit des Glaubens und Gewissens. Castellio, Calvin und Basel 1552–​1556, Begleitband zur Bibliothek histori­ scher Denkwürdigkeiten. Essen: Alcorde Verlag, 2014. Plathow, Michael, ‘Junius, Franz (du Jon) der Ältere’, in Biographisch-​Bibliographisches Kirchenlexikon (bbkl) (Herzberg: Bautz, 1992), vol. iii: pp. 885–​886. Rauschenbach, Sina, ‘ “De Republica Hebraeorum”. Geschichtsschreibung zwischen “Hebraica Veritas” und Utopie’, Zeitschrift für Neuere Rechtsgeschichte, 26/​1–​2 (2004), pp. 9–​35. Rester, Todd M./​McGinnis, Andrew M., ‘Introduction’, in Franciscus Junius, the Mosaic Polity, ed. by Todd M. Rester (Transl.) and Andrew M. McGinnis. Grand Rapids, MI: clp Academic, 2015. p. xix–​l. Rex, Richard, ‘Humanism and Reformation in England and Scotland’, in Hebrew Bible –​Old Testament. The History of Its Interpretation, ed. by Magne Saebø. Göttingen: Vandenhoeck & Ruprecht, 2008. pp. 512–​35. Ross, Richard J., ‘Distinguishing Eternal from Transient Law: Natural Law and the Judicial Laws of Moses’, Past and Present, 217 (2012), pp. 79–​115. Sarx, Tobias, Franciscus Junius d.Ä. (1545–​ 1602). Ein reformierter Theologe im Spannungsfeld zwischen späthumanistischer Irenik und reformierter Konfessionalisierung, Reformed Historical Theology 3. Göttingen: Vandenhoeck & Ruprecht, 2007. Somos, Mark, Secularisation and the Leiden Circle. Leiden/​Boston: Brill, 2011. Strohm, Christoph, Calvinismus und Recht. Weltanschaulich-​konfessionelle Aspekte im Werk reformierter Juristen in der Frühen Neuzeit. Spätmittelalter, Humanismus, Reformation 42. Tübingen: Mohr Siebeck, 2008. Strohm, Christoph, Johannes Calvin. Leben und Werk des Reformators. München: C.H. Beck, 2009. Sutcliffe, Adam, ‘The Philosemitic Moment? Judaism and Republicanism in Seventeenth-​ Century European Thought’, in Philosemitism in History, ed. by

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Jonathan Karp and Adam Sutcliffe Cambridge: Cambridge University Press, 2011. pp. 67–​89. Totzeck, Markus M., Die politischen Gesetze des Mose. Entstehung und Einflüsse der politia-​judaica-​Literatur in der Frühen Neuzeit. Refo500 Academic Studies 49. Göttingen: Vandenhoeck & Ruprecht, 2019. Totzeck, Markus M., ‘Politischer Hebraismus: Möglichkeiten und Grenzen eines Forschungskonzeptes am Beispiel des Schottischen Theologen und Hebraisten John Weemes (ca. 1579–​1636)’, in Recht, Konfession und Verfassung im 17. Jahrhundert: West-​ und Mitteleuropäische Entwicklungen, ed. by Robert von Friedeburg and Mathias Schmoeckel. Historische Forschungen 105. Berlin: Duncker & Humblot, 2015. pp. 215–​241. Troje, Hans Erich, ‘Arbeitshypothesen zum Thema “Humanistische Jurisprudenz” ’, Tijdschrift voor Rechtsgeschiedenis, 38 (1970), pp. 519–​55. Troje, Hans Erich, ‘Zur Humanistischen Jurisprudenz: 1) Mos Gallicus; 2) Usura’, in Festschrift Für Hermann Heimpel Zum 70. Geburtstag Am 19. September 1971, ed. by Mitarbeiter des Max-​Planck-​Instituts für Geschichte. Göttingen, 1972. pp. 110–​139. Witte Jr., John, The Reformation of Rights. Law, Religion and Human Rights in Early Modern Calvinism. Cambridge: Cambridge University Press, 2007.

­c hapter 6

Challenges of Universalism

Theologico-​Philosophical Considerations of Natural Law by Transylvanian Antitrinitarians in the Late Sixteenth Century ( Jacobus Palaeologus and Christian Francken) József Simon 1

Introduction

This chapter highlights some aspects of natural law in Jacobus Palaeologus (ca. 1520–​1585) and Christian Francken (1552-​after 1610). Neither of the two can be called a theoretician of natural law or of law of nations in the classical sense of the terms.1 They considered the problem of natural law according to their specific argumentative goals still before Grotius and his followers introduced their classical conceptions in the seventeenth century. Although there were significant uses of the idea of lex naturalis in the writings of radical protestant authors in the sixteenth century, these were not presented within the framework of a contractual theory –​as their counterparts in the second half of the seventeenth century would be without exception. However, Eastern-​European radical Protestant texts and authors are still of some relevance to our topic. The feature common to both Grotius’s followers and the radical Protestant –​in my case Antitrinitarian –​authors is their shared tendency towards universalism; hence the title of my contribution ‘Challenges of Universalism’. While aiming at a universal reformation of Western Christianity, the Antitrinitarian culture of religious thinking created space for other, much more radical thought experiments as well. No doubt, Jacobus Palaeologus and Christian Francken went beyond the confessional setting of Antitrinitarianism, as the first developed a conception of sacred universalism for the monotheistic religions of his time, and the second confronted moral conceptions of revealed religions with a natural universalism of philosophy. Their biographies have common features: neither Palaeologus, nor Francken held any official position in the institutional hierarchy of the church, they

1 Merio Scattola, Das Naturrecht vor dem Naturrecht. Zur Geschichte des ›ius naturae‹ im 16. Jahrhundert (Tübingen: Niemeyer, 1999).

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played the role of independent ideological supporters of the Antitrinitarian movement. However, their –​especially Palaeologus’s –​influence on the later history of the institutionalised denomination in Transylvania is enormous.2 Both biographies end up with a dark last chapter of imprisonment by the Inquisition: Palaeologus was beheaded in 1585, Francken spent the last 13 years of his life in the jail of the Holy Office in Rome until his death around 1611. 2

Jacobus Palaeologus: The Concept of Nature in the De Tribus Gentibus (1572)

Palaeologus’s life is well documented in the studies concentrating on the history of religious free thought in sixteenth century Eastern Europe.3 The main motifs of his adventurous biography are his various escapes from the Inquisition, and episodes of political agency or even spying.4 In the 1570s Palaeologus stayed in Poland, Transylvania and Moravia and joined the movement of East-​European radical Antitrinitarians. He wrote his most famous works between 1571 and 1576 while continuously commuting between Cracow and Transylvania. Although the religious climate of his time was not favourable for the publication of his chief works, they were widely available in hand-​ written copies in Eastern Europe. Palaeologus was captured in 1581 in Moravia on imperial order and subsequently extradited to Rome, where he was executed in 1585. 2 Cf. Mihály Balázs, Early Transylvanian Antitrinitarianism (1566–​ 1571) –​from Servet to Palaeologus, Bibliotheca dissidentium, Scripta et studia 7. (Baden-​Baden: Koerner, 1996); Idem, ‘György Enyedi zwischen Palaeologus und Faustus Socinus. Anmerkungen zum unbekannten György Enyedi’, in György Enyedi and Central European Unitarism in the 16–​17th Centuries, ed. by Mihály Balázs and Gizella Keserű (Budapest: Balassi Kiadó, 2000), pp. 15–​22. 3 For seminal expositions of Palaeologus’s works in their East European cultural contexts cf. Antal Pirnát, Die Ideologie der Siebenburger Antitrinitarier in den 1570er Jahren (Budapest: Verlag der Ungarischen Akademie der Wissenschaften, 1961); Lech Szczucki, W kręgu myślicieli heretyckich, (Wrocław: Zakład Narodowy im. Ossolińskich, 1972); Idem, ‘Polish and Transylvanian Unitarianism in the Second Half of the 16th Century’, in Antitrinitarianism in the Second Half of the 16th Century, ed. Róbert Dán and Antal Pirnát (Budapest: Akadémiai Kiadó, 1982), pp. 215–​230; Massimo Firpo, Antitrinitari nell’Europa orientale del ‘500. Nuovi testi di Szymon Budny, Niccolò Paruta e Iacopo Palaeologo (Firenze: La nuova Italia, 1977). 4 Martin Rothkegel, ‘Jacobus Palaeologus in Constantinople, 1554–​5 and 1573’, in Os-​manlı İstanbulu IV, ed. by Emrah Safa Gürkan (İstanbul, 2017), pp. 977–​1004; Idem., ‘Iacobus Palaeologus und die Reformation: Antireformatorische Polemik in der verlorenen Schrift “Pro Serveto contra Calvinum” ’, in Radikale Reformation. Die Unitarier in Siebenbürgen, Studia Transylvanica 44, ed. by Ulrich A. Wien, András F. Balogh and Juliane Brandt, (Köln: Böhlau Verlag, 2013), pp. 91–​134.

138 Simon His work De tribus gentibus (On the three nations) contains perhaps the clearest summary of his syncretic theology.5 Palaeologus finished the essay in Cracow in 1572, the only preserved manuscript is dated 1587 in Thorda/​ Transylvania, copied by Máté Thoroczkai. The modern edition of the treatise, published by Lech Szczucki in 1972, is based on this manuscript.6 Palaeologus begins his essay with an apodictic statement. All men by nature desire to seek and to acquire salvation.7 Salvation –​which substitutes Aristotle’s ‘knowledge’ in this paraphrase of the first sentence of the Metaphysics8 –​is twofold. First, it is the object of a basic instinct in every member of mankind without exception –​Palaeologus regards this natural instinct as a strong anthropological motive. Although this desire can be satisfied neither by any sensual nor by any mental knowledge, its origin is nevertheless natural. Second, there is another salvation (altera salus) which was based by God on the first type of salvation and desire. The figure of Abraham plays a decisive role in the history of spreading out this altera salus. With Abraham mankind acquires knowledge about the second salvation and raises institutions to serve God who provides mankind with the hope of attaining it. Although the pagan Greeks and Romans had some undetermined notions of the second salvation in the form of their public patriotism as well, Abraham’s descendants enjoyed special privileges. At the same time, non-​Jewish nations perceived the preeminent status of the Jews, and some of them tried to enter God’s elected nation through the ritual of circumcision. According to Palaeologus there were two proper types of human existence that had the appropriate notion, hope and desire of altera salus before Christ: Abraham’s descendants and those non-​ Jews who subjected themselves to the act of circumcision in order to join to the elected nation.9 Patriotism without circumcision assured only a week sign of the altera salus –​especially for the Greeks, who were great patriots in public but nevertheless conducted a vicious life in their private sphere. The situation changed with Christ’s appearance in the world –​but not in the traditional sense.10 Those non-​Jews who originally had no other choice to 5 For standard interpretations cf. Szczucki, W kręgu, passim, Pirnát, Die Ideologie, pp. 66–​69. 6 All references follow Lech Szczucki’s critical edition, cf. Szczucki, W kręgu, pp. 229–​240. 7 Szczucki, W kręgu, p. 229: Omnes homines natura ipsa stimulante salutem quaerere et habere desiderant. 8 Cf. Aristotle, Metaphysics, 980a22: All men by nature desire to know. (The Complete Works of Aristotle, vol. ii, ed. Jonathan Barnes (Princeton: Princeton University Press, 1991), p. 1552). 9 For the latter cf. Szczucki, W kręgu, p. 231: Erat autem circumcisio … oboedentiae signum in maribus …, et qui recipiebant ex non posteris Abrahami, cum maribus et feminis, si illi octavum diem non excessissent, inter Abrahami posteros a Deo numerabantur. 10 Ibid, pp. 232–​235.

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enter the elected nation than to subject themselves to the rite of circumcision, were offered the notion of altera salus without undertaking circumcision. The criterion of having knowledge of salvation was not circumcision anymore, but the faith in the fact that Jesus was the Christ, i.e. God’s anointed. However, the occurrence of the new faith did not mean the annulment or cancellation of the rites of the Jews. This new notion of salvation propagated by Christ was the very same salvation as the one which had been promised for Abraham’s descendants. The key moment of Palaeologus’s conception is the question of circumcision.11 Without going into subtle details, we can summarise Palaeologus’s point of view in his statement that it was not the Jewish nation, whose status concerning the salvation changed with Christ’s occurrence. Rather, it was the status of the non-​Jews that changed. They did not have to subject themselves any more to the rite of circumcision in order to be part of the elected nation, that is, to have the appropriate notion of the salvation. It is a practically intolerant and exegetically untenable opinion that the requirement of setting aside the rites of Jews is an unavoidable presupposition for their salvation and justification according to Christian faith. Furthermore, a non-​Jewish person can even disregard God’s newly provided notion of salvation through undertaking circumcision and joining Abraham’s descendants without losing the very same perspective on the very same salvation. But after having subjected himself to the rite, one has to fulfil the ceremonial prescriptions of the Jews and cannot draw upon his faith only. Jews and Christians all have their own perspective of the same salvation: Christianity can be explained without cancelling Jewish ceremonies and Jewish ceremonies can be justified without negating the central role of Christ. Regarding natural law, Palaeologus’s syncretic view testifies an interesting oscillation of the concept of nature. In relating Jews and Christians to each other, the Greek thinker established two types of natural law concerning human beings. The first type is the law of desire for salvation, that is, an anthropological standard in all members of mankind. In the first sentence of the De tribus 11 Szczucki, W kręgu, pp. 232–​233: Cum enim ante inter posteros Abrahami numerari non posset nisi patrefamilias pro se et suis familiis circumcisio aut matrefamilias pro se et suis certa caeremonia expiata, hac lege immota aliam etiam proposuit, ut praeputiatis necessaria non esset circumcisio, sed ut fides credentibus Iesum esse Christum utrumque pro illis, qui crederent, et omnibus eorum successoribus praestaret: unum adoptionem in filios Deis, quod prius per circumcisionem habere consuevissent, alterum evasionem ab ira illa, quae tum imminere dicebatur; liberum tamen erat praeputiato consuetudine recepta ad illum usque diem circumcisionis uti, evadere tamen ab ira imminente nullus posse vulgabatur, nisi qui Iesum esse Christum credidisset.

140 Simon gentibus, Palaeologus expresses this natural desire through the paraphrase of Aristotle’s opening statement at the beginning of the Metaphysics concerning man’s natural desire for knowledge. The all-​embracing natural drive towards justification keeps moving human history according to God’s plan in all times and regions. For the second type, somewhat paradoxically, Palaeologus qualifies the manner according to which Abraham’s descendants disposed of the notion of salvation as natural in some passages. They were saints naturally,12 all the Jews were God’s sons and branches of the life’s tree naturally,13 they were justified by nature,14 they sucked the sanctity of the natural oil-​tree as inborn or natural branches while believing that Jesus was the Christ,15 their certainty of justification inhabited in them φύσει.16 Natural law belonged to the Ancient Greeks and Romans only in the first sense, they disposed of the natural drive towards supranatural salvation, but no certitude of justification was given them naturally. However, neither any member of the gentes who undertook the ritual of circumcision possessed the hope of salvation in a natural way, their certitude inhabited in them θέσει. After explaining the syncretic theological horizon for Jews and Christians, Palaeologus discusses the position of Muslims17 regarding his altera salus. As the title of the treatise –​De tribus gentibus, On the three nations –​already suggests, Palaeologus leads the third nation into his syncretism too. First of all, the Alcoran acknowledges Jesus as Christ as well, performing the minimal

12 13 14 15 16 17

Ibid, p. 232: Sanctum erant natura. … Ibid, p. 236: … omnes Iudaei essent natura ipsa filii Dei. … Ibid: … iusti essent natura ipsa. Ibid: … a trunco arboris tamquam nativi et naturales rami sugerent pinguedinem et sanctitatem naturalis ἐλαίας credentes Iesum esse Christum; cf. Rom. 11, 22–​24. Ibid, p. 231: Venit autem lex … ostendendo viam fugiendorum et prosequendorum pervenire volenti ad metas iustitiae, quae in se esse aut φύσει, ut in Abrahami posteris, aut θέσει, ut in praeputiatis, qui circumcidebantur. … Born on the island Chios under Genevan administration near Istanbul, Palaeologus had immediate cultural experience of the Muslim world. For a detailed presentation of the relationship between Christianity and Islam by Palaeologus, cf. Rothkegel, ‘Iacobus Paelaeologus und die Reformation’. Concerning Palaeologus’s journey to Constantinople and his meeting with the convert Adam Neuser cf. Jacobus Palaeologus, Epistola Iacobi Palaeologi, De Rebus Constantinopoli & Chii cum eo actis, lectu digna (Ursel: Heinrich, 1594); Rothkegel, ‘Jacobus Palaeologus in Constantinople …’ and Martin Mulsow, ‘Adam Neusers Brief an Sultan Selim II. und seine geplante Rechtfertigungsschrift’, in Religiöser Nonkonformismus und frühneuzeitliche Gelehrtenkultur, ed. by Friedrich Vollhardt, Quellen und Darstellungen zur Geschichte des Antitrinitarismus und Sozinianismus in der Frühen Neuzeit, 2. (Berlin: De Gruyter, 2014), pp. 293–​318.

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requirement for the salvation for the gentes.18 They practice the act of circumcision, but –​contrary to the Jews –​there is no sign of the deadline of the eighth day, they circumcise boys only after a certain age and justify this rite through some causes relating to corporal hygiene.19 After all, the circumcision of the Muslims is a question of comparative studies of religions, as it appears by Herodotus or Diodorus.20 May these sources from Antiquity suggest that the ancestors of the third nation had received the ritual of circumcision from the Jews –​long before being Muslims –​, it has nevertheless no impact on sharing their notion of the altera salus. Their status is the same as that of the non-​circumcised non-​Jews, they are provided with the notion and the hope of salvation by recognising Jesus Christ. Palaeologus refuses the standard polemical commonplace of the absurdities contained in the Alcoran through relating similar phenomena in the texts of Christian revelation and enforces his view by emphasising a possible genetic relationship between them.21 Muslims are in fact descendants of nations who lived in geographical proximity22 of the scenes of Christ’s coming –​therefore they were promised with the hope of salvation in the same manner as other gentes who were not Jews. According to his famous view, Palaeologus sees the cause of their departure from Christianity in the fact that they were averse from accepting the doctrines of the Holy Trinity

18 Szczucki, W kręgu, p. 237: Non enim semel, illius libri persuasiones eius continentes, sed illa quoque constantissime requisite fatetur Iesum esse Christum …, quae plane confessio conciliabat tum temporis hominibus praeputiatis salute. 19 Ibid., Numquam enim octavo die circumcidunt, ferme nunquam nisi cum aliquot aetatis annos excesserit puer; puellas non circumcidunt aliarum gentium consuetudine, quas Herodotus et Diodorus et alii commemorant; pueros tantum, cum adoleverint, propter munditiem, ut dicunt, circumcidunt. 20 Palaeologus may refer to Herodotus, Historiae 2, 104: My own conjectures [scil. concerning the identity of the Egyptians and the Colchians –​J.S.] were founded … on the circumstance that the Colchians, the Egyptians, and the Ethiopians, are the only nations who have practised circumcision from the earliest times. The Phoenicians and the Syrians of Palestine themselves confess that they learnt the custom from the Egyptians. … (History of Herodotus, transl. George Rawlinson (London: Murray, 1862), vol. 2., 146–​147). Regarding Diodorus Siculus cf. Idem, Bibliotheca Historica, i.28.2–​3 (edn Fr. Vogel (Stuttgart: Teubner, 1888), p. 45). 21 Szczucki, W kręgu, pp. 236–​237: Neque enim video ob id secludendi sunt a lautis illius alteris salutis spe, quod multa absurda Alcoranus contineat, cum illa ad narrationem pertineat, et nil sit ad narrationem pertinens, quod habeat vitae spem aut mortis metum adiunctum, nisi hoc unum, quod Iesus sit Christus. … Praeterea, si in Alcorano aliqua sunt absurda, nec illa ab omnibus eius gentis, ut scripta sunt, creduntur et non dissimilia habent in sacris Bibliis et a sacris Bibliis ad Alcoranum translate fuisse videntur. 22 Cf. Pirnát, Die Ideologie, p. 68.

142 Simon and the essential divine nature of Christ as late developments of so-​called Christian theology.23 Palaeologus’s syncretic view implied a break away from traditional Christologies. Classical Antitrinitarian criticism concerning Christ’s double nature and the metaphysical existence of the second divine person before its incarnation was not the central issue in Palaeologus’s approach, however his syncretism implied these critical points as consequences. The Greek thinker’s concern was over syncretism, but the main stream of Antitrinitarian theology could make a good use of Christological aspects implied in his theory.24 Palaeologus’s developing of a common historical narrative based on natural capacities of mankind functioned clearly as counter-​balance against traditional Christology regarded as compensation of the anthropological motif of original sin. There is much obscurity regarding the possible sources of Palaeologus’s theological approach. According to Lech Szczucki, this radical syncretism had only very rare parallels in contemporary Europe. One of the similar cases was that of Guillaume Postel. Although Postel and Palaeologus had the painful opportunity to get acquainted with each other in the prison of the Inquisition in Rome in 1559, Szczucki denies a direct takeover of Postel’s thought.25 Mihály Balázs emphasised some similarities with Nicolaus Cusanus’s De pace fidei, while keeping in mind the German philosopher’s strong trinitological commitments.26 Martin Rothkegel interpreted Palaeologus’s theology within a Levantine cultural context.27 Palaeologus’s approach might have been influenced by Averroes’s notorious last disputation of his Incoherence of Incoherence, where Averroes provided a naturalistic account for the spreading out of the monotheistic religions.28 23 Szczucki, W kręgu, p. 240: Et cum diligenter omnia discutio, quae in Abrahamo disputantur, nullam rem aliam illam gentem ab aliis Christianis disclusisse video quam trinitatis negotium et potius priora tempora, cum tantum de Iesu, an esset verus Deus, disputaretur. 24 Balázs, ‘Der siebenbürgishe Unitarismus. Zum Forschungsstand’, in Radikale Reformation. Die Unitarier in Siebenbürgen. Studia Transylvanica 44. Ed. by Ulrich A. Wien, András F. Balogh and Juliane Brandt, (Köln: Böhlau Verlag, 2013), pp. 11–​36, esp. pp. 22–​23. 25 Szczucki, W kręgu, pp. 104–​106. 26 Mihály Balázs, ‘Von Valla bis Bodin. Über den literaturhistorischen Kontext der Disputatio scholastica von Jacobus Palaeologus’, in Kritische Religionsphilosophie. Eine Gedenkschrift für Friedrich Niewöhner, ed. by Wilhelm Schmidt-​Biggemann and Georges Tamer (Berlin-​ New York: De Gruyter, 2010), pp. 111–​129. 27 Rothkegel, ‘Jacobus Palaeologus …’ passim. 28 Averroes, ‘Sermo de legibus’, (Destructio Destructionum Philosophiae Algazelis, de physicis disp. 4) in Aristotelis Opera cum Averrois commentariis, Vol. 9, Venetiis 1562 (Nachdruck Frankfurt am Main: Minerva, 1962), pp. 146r-​v.

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Christian Francken: Natural Law in the Critique of Theism

Biography 3.1 Christian Francken29 was born in 1552 in Gardelegen near Magdeburg in Germany as a son of a Lutheran family. He probably followed his father’s conversion to Catholicism and was educated by Jesuit monks in their College in Vienna, where he was appointed to deliver lectures on Aristotle’s philosophy. In 1579 he left the Jesuits’ College by violating his monastic obligation. Francken began his unsteady career among the denominations of his time; one of his enlightened biographers resumed his share in the History of human foolishness (Geschichte der menschlichen Narrheit) under the title A weathercock (Ein Wetterhahn).30 After converging towards and getting into confrontation with different Lutheran and Calvinistic circles, Francken turned up in Poland and participated in the inner debates of the Antitrinitarians in 1584. He left Poland as well because of his conflict with Fausto Sozzini concerning the theological question of the adoration of Christ and moved to Transylvania. During his first stay in Cluj in 1585, he was employed as lecturer of philosophy in the Antitrinitarian College and published an edition of Epictetus’s Encheiridion with commentaries.31 His second residence in Transylvania dates between the years 1589 and 29

30 31

Christian Francken’s person has been the subject of continuous international research, most remarkably in Poland, Hungary, Italy and Germany. For basic bio-​bibliographical details, see: Jacek Wijaczka, Christian Francken, Bibliotheca dissidentium, Tom. 13 (Baden-​Baden : Koerner, 1991). The most important summaries concerning his intellectual achievements are the following: Szczucki, W kręgu, pp. 122–​195 (=​‘Philosophie und Autorität. Der Fall Christian Francken’, in Reformation and Frühaufklärung in Polen. Studien über den Sozinianismus und seinen Einfluß auf das westeuropäische Denken im 17. Jahrhundert, ed. by Paul Wrzecionko (Göttingen: Vandenhoeck & Ruprecht, 1977), pp. 157–​243); Gianni Paganini, ‘Premessa: Scetticismo e religione in Christian Francken’ in Christian Francken: Opere a stampa. ed. by Mario Biagioni (Rome: Ed. di Storia e Letteratura, 2014) pp. ix–​x ix; Mario Biagioni, ‘Christian Francken e la crisi intellettuale della riforma’ in ibidem, pp. 6–​75; Mario Biagioni, The Radical Reformation and the Making of Modern Europe. A Lasting Heritage (Leiden-​Boston: Brill, 2017), pp. 108–​134; József Simon, Die Religionsphilosophie Christian Franckens (1552–​1610?): Atheismus und radikale Reformation im Frühneuzeitlichen Ostmitteleuropa, Wolfenbütteler Forschungen Bd. 117 (Wiesbaden: Harrassowitz, 2008). Johann Christoph Adelung, Geschichte der menschlichen Narrheit (Leipzig: Weygand, 1786), pp. 193–​219. Epicteti Philosophi stoici Enchiridion, in quo ingeniossissime docetur, quaemadmodum ad animi tranquillitatem beatitudinemque praesentis vitae invenire possit (Claudipoli: Heltai, 1585); Cf. Szczucki, ‘Philosophie und Autorität’, pp. 213–​214; Catalogus translationum et commentariorum: Mediaeval and Renaissance Latin Translations and Commentaries. Vol. ix. ed. by Virginia Brown, James Hankins and Robert Andrew Kaster (Washington

144 Simon 1593, during which Francken established deep personal contacts not only to Antitrinitarian thinkers in Cluj, but also to political leaders of the Principality –​ such as to János Gerendy, the Head of the Court of the National Assembly in Transylvania. The threat of the forthcoming Fifteen Years’ War (1593–​1608) between the Turks and the Habsburgs forced him to leave Transylvania, his safe haven. From 1594 onwards, we find him in Prague, in the service of the papal nuncio Cesare Speciano. Francken travelled to Italy in 1598 in Speciano’s company, where he was detained by the Jesuits in Milan and was imprisoned in Rome. His trial began six days after Giordano Bruno’s execution. However, the Holy Office did never pass such a strict sentence upon him as upon Bruno. He enjoyed relative freedom during his imprisonment in the first decade of the seventeenth century: the last record in the Archive of the Holy Office concerning him mentions Francken in 1611.32 He was probably never released from prison.33 The Disputatio Inter Theologum et Philosophum de Incertitudine Religionis Christianae34 Francken wrote the Disputatio during his second residence in Transylvania around 1590. The work has two protagonists: a Theologian and a Philosopher –​ the latter presenting the author’s positions. Francken outlines the subject of the work in a short Praeludium. In the second part, the Theologian explores 37 3.2

32 33

34

DC: Catholic University of America Press, 2011), pp. 47–​49; Antal Pirnát, ‘Arisztoteliánusok és antitrinitáriusok’, Helikon 17/​3–​4 (1971), pp. 363–​392. For a summary of his trial, see: Szczucki, ‘Philosophie und Autorität’, pp. 237ff. Antal Molnár discovered new details concerning the last years of Francken’s life based on research in the Archive of the Holy Office, cf. Antal Molnár, ‘Az inkvizíció börtönében’, in Redite ad cor. Tanulmányok Sahin-​Tóth Péter emlékére, ed. by Krász Lilla and Oborni Teréz (Budapest: elte Eötvös Kiadó, 2008), pp. 485–​497. References on this work follow my modern edition, Christian Francken, Disputatio inter Theologum et Philosophum de incertitudine religionis Christianae, in József Simon, Die Religionsphilosophie Christian Franckens, pp. 151–​182. Special studies devoted to Francken’s Disputatio: Bálint Keserű, ‘Christian Franckens Tätigkeit im ungarischen Sprachgebiet und sein unbekanntes Werk “Disputatio de incertitudine religionis Christianae” ’, in Antitrinitarianism in the Second Half of the 16th Century, ed. by Róbert Dán and Antal Pirnát (Budapest: Akadémiai Kiadó, 1982), pp. 73–​84; Mario Biagioni, ‘Il problema del criterio di verità nella Disputatio de incertitudine religionis Christianae di Christian Francken’, Rinascimento, 11 (2008), pp. 469–​480; Idem, ‘Christian Francken e le origini cinquecentesche del trattato De tribus impostoribus’, Bruniana & Campanelliana, 16/​1 (2010), pp. 237–​246; Idem, ‘L’unicità della ragione: l’evoluzione religiosa del gesuita Christian Francken’, in La Centralità del Dubbio (Restauri storiografici: un progetto di Antonio Rotondò), 2 vols, ed. by Camilla Hermanin and Luisa Simonutti (Firenze: Leo S. Olschki, 2011), ii, pp. 235–​260.

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arguments for God’s existence, each of them refuted by the Philosopher. We read a catalogue of ancient atheists35 at the end of the Disputatio: this list of ancient atheists is an inherent part of the refutation of the Theologian’s 37th argument. A detailed analysis of the atheistic argumentation would exceed the intended aims of this chapter, so I would like to outline only arguments related to the topic of natural law.36 Like other authors of his time, Francken was motivated by the comparative observation of religions while focussing on the conflict between positive revelation and natural law. Accordingly, the Philosopher of Francken’s Disputatio draws the reader’s attention upon the parallels between the prophets and apostles on the one hand and those figures of pagan antiquity on the other hand, who stated themselves being in immediate relationship with the gods.37 There are phenomena in the world outside of Christianity that correspond to God’s miraculous interventions in human history in Christianity.38 One cannot set aside this comparative point of view by introducing the difference between ‘superadded laws’ (leges superadditae) and natural laws (leges naturae). Superadded commands respected because of their alleged divine origin in the Non-​Christian world can neither be treated as pure natural laws: their status cannot be distinguished from positive commands of Christianity.39 The basic Christian dogmas –​such as the dogma of Trinity –​seem to be 35 For the genre of catalogue of ancient atheists cf. Marek Winiarczyk, ‘Der erste Atheistenkatalog bei Kleitomakhos’, Philologus, 120 (1976), pp. 32–​46. 36 For a detailed interpretation, see Simon, Die Religionsphilosophie Christian Franckens, pp. 68–​134. Some methological reflections concerning Francken’s scpeticism: Biagioni, ‘Christian Francken e le origini’; József Simon, ‘Metaphysical Certitude and Plurality of Religions: Christian Francken and the Problem of Philosophical Libertinism in Early Modern Eastern Europe’, Bruniana & Campanelliana, 19/​1 (2013), pp. 165–​178; Mario Biagioni, ‘Christian Francken sceptical: a reply to József Simon’, Bruniana & Campanelliana, 19/​1 (2013), pp. 179–​185. 37 Francken, ‘Disputatio’, p. 155: … nihil prohibet homines fingere se commercium habere cum Deo et audire sermones illius, ut magni inter caeteros habeantur, quasi domesti­ci Dei, et fidem verbis suis inveniant, unde et legislatores gentium a Diis se leges suas accepisse finxerunt: Charondas a Saturno, Zaleucus a Vesta, Zoroastres a Bono Numine, Lycurgus ab Apolline, Solon a a Minerva, Minos a Joue, Numa Pompilius ab Aegeria, Mahomet a Gabriele. 38 Ibid, p. 157: Quod si dicatis per singularem seu particularem operationem miraculorum Deum esse viciniorem vobis: Nulla est gens, quae miracula sua non commemoret. Nam gentilium historiae narrant miracula Romanorum, Greca, Egiptiaca et aliarum nationum. 39 Ibid, p. 158: 4. Philos. … Quod autem attinet ad leges superadditas legi naturae, fere omnis gens credit se eas accepisse a Deo alio enim atque alio nomina propter diversas Dei virtutes appellato.’; cf. ibid: p. 5. Philos. … Nam et aliae gentes se credunt populum Dei et verbum suis pro verbo Dei.

146 Simon monstrous opinions for people who had grown up and were educated outside of Christianity.40 Further, dismissed moral elements of other religions do not belong to their laws intrinsically, they are only vices of individuals who act following their own arbitrary interpretations of the laws. The removal of this arbitrariness requires rational criticism, but Christianity and Christian revelation must be subjected to the same rational observation in this respect.41 The superiority of the Christian religion among others can neither be assured by the positive attribute of its long duration42: Christianity is only one of the positive confessions based on natural religion. The theologian’s twelfth argument posits the appropriate goal of human existence and the means of reaching it into the realm of supranatural cognition.43 The argument clearly separates the spheres of natural and supranatural cognition with a strong emphasis on the latter. Acknowledging any human moral values at all presupposes supranatural theism, i.e. it requires God known through specific Christian revelation. The refutation focuses on the theologian’s claim for the impossibility of recognising the ultimate goal of human existence with man’s natural capacities and denies God’s necessary guidance concerning human goals and means.44 The philosopher has to face the possible objection

40

41

42 43

44

Ibid, p. 161: 8. Philos. … Nam quicunque aliis instituti legibus sunt, nequaquam fatebuntur doctrinam istam efficere meliores, immo depravare mentes et implere monstrosis opinionibus, ut quod Deus sit unus in tribus personis, quod Deus sit homo, passus, mortuus. Ibid, p. 159: 6. Philos. Vitiosa est ratio falso antecedente. Nam neque aliae leges continent falsum vel inhonestum. Quod si in caeteris populis est reprehendendum, vitia sunt hominum, non legum, sicut et apud Christianos sunt multa reprehendenda, non quia lex non bene habeat: quia homines non secundum legem vivant. Quod si non solum in homi­ nibus, sed et in legibus aliarum gentium aliquid reprehensibile videatur, id, si recte interpretemur, omni reprehensione carebit. Sicut apud vos Christianos multa sunt absurda in lege, quae tamen per interpretationem reducuntur ad normam rationis. Ibid, p. 162: 10. Philos. … Et lex Idololatriae usque ad nostra tempora durat. Regnum Calicut et ora maritima Asiae, Africae et Americae adhuc adorat Daemonem. Ibid, p. 163: 12. Theol. Homini necessaria est cognitio finis et mediorum, quorum beneficio pertingat ad finem, quae non possunt naturaliter cognosci. Ergo necessarium est, ut Deus ostendat finem illi, nempe Sanctae Trinitatis intuitivam cognitionem et praesentis Dei amorem, atque media, quae sunt Sacramenta et opera, quae Deus praecipit. Ibid, p. 164: 12. Philos. Vitiosa est ratio falso consequentis. Nam finis proprius hominis est generare hominem sibi similem, vivere secundum virtutem, intelligere et uti creatura; haec autem homo naturaliter cognoscit sicut et media, quibus ad haec potest pervenire. Ne dicas istum esse finem Bestiarum, quae ipsae quoque generant, cognoscunt, et utuntur rebus sensibilibus. Nam longe superior est finis hominis, quam Bestiarum, nam secundum praestat generare hominem quam Bestiam, vivere secundum virtutem quam secundum naturam, cognoscere ratione quam sensu.

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that man sinks down to the level of animal existence if his supranatural goal is eliminated. For this purpose, Francken’s philosopher introduces qualitative differences between the goals peculiar to human and bestial existence respectively. In sum: the dependence of human morality on positive moral theology is untenable. But this view concerning the independency of human morality from supranatural revelation still conceals the problem how secular morality is related to natural law, or –​more accurately –​how secular morality is related to God’s rational cognition presupposed by natural law. The theologian’s next argument adresses this question straightaway.45 It claims namely that Gospel’s ethics agrees perfectly with the natural moral laws. Although the Gospel’s ethics was proposed by God, its commands are essentially rational. The positive Christian law proves to be consistent with the right reason and hence was accepted by the multitude as true. According to the philosopher, the propagation and the multitude of the followers are not necessarily consequences of the rational character of a law in question. With reference to ancient poets, Francken’s philosopher follows the classical procedure of attributing psychological motifs to constitutions. The wide propagation of law can be explained by its irrationality as well: Christian religion could gain a great number of followers because of its tyrannical and irrational nature, too. By emphasising the differences among constitutions of antiquity, Francken excludes the laws of Athens as well as the laws of Sparta from the circle of natural and rational laws: they promulgated contradicting laws regarding the right of citizenship. As the cases of Athens and Sparta shows, the idea of the natural law proves to be contradictory in itself. This is a very remarkable feature of Francken’s criticism: It is not only the perspective of divine mercy and theological epistemology which raises doubts regarding the claim for rationality of Christian apologetics, but it is uncertain also –​so to speak –​from beneath, that is from the perspective of natural theistic grounds. There is no unique political or moral law established by natural use of rationality which could provide moral theology with possible points of connection. This is clearly a relativisation of natural law: even if the certainty of God’s supranatural cognition was beyond any doubt, it could not harmonise with natural law, because of the relativity of the latter.

45

Ibid: p. 13. Theol. Lex est summa ratio ab ipso Deo proposita. Ergo multo magis lex Christiana, quippe quae maxime sit consentanea legi illi naturali: Fac alteri, quod tibi vis! Ne feceris, quod tibi fieri nolis! Et per consequens est consentanea rectae rationi, et recepta est a multitudine tanquam vera.

148 Simon Despite what was afore said and despite of a sceptical refutation of God’s natural cognition relying on Sextus Empiricus, Francken does not abandon the concept of nature. According to Francken’s philosopher, the validity of the Gospel’s ethics can be refuted in the name of the reason, as –​following Aristotle and Plato –​a certain member of the state can be executed if demanded by public utility, although it contradicts the moral principles of Jesus’s Sermon on the Mount.46 But the critique does not aim only at the eliminating of a supranatural deduction of morality: the word utility alludes to the ancient critiques of the metaphysical –​namely natural –​establishment of morality in several arguments. The rationality of the interpretation of laws is indeed subject to the contingent social utility. The Socratic schools of ancient philosophy had rightly stated that we are able only to draw the borderline between human moral values and the real natural order of morality at best, without having certain knowledge of the latter. The reception of these relativising elements of ancient Greek moral reflections urges Francken to express a critique of natural theism as well.47 4

Conclusion

The concept of natural law plays a decisive role in criticising traditional religious concepts by Palaeologus as well as by Francken. However, neither Palaeologus nor Francken was satisfied with subsuming of positive religion under natural law. Of course, their uses of the idea of natural law differed from each other significantly, following their own objectives. Palaeologus’s syncretic vision of a common narrative and of a shared salvation regarding the three monotheistic religions has the idea of natural desire for salvation as anthropological point of departure. This very natural feature of mankind culminates somehow in the supranatural determination of man who is able to acquire cognition of salvation and to purchase it. But this universal salvation 46

47

Ibid, p. 167: 8r: ‘16. Philos. … Aristotelis et Platonis sententia sit lex naturae, quam vos dicitis? Resp. dedistis legem publicam dispensare et interpretari legem naturae. Verbi gratia cum Rem publicam gubernamus, perditissimos homines interficimus, nec tamen nos vellemus interfici. Itaque ratio ostendit pro publica utilitate faciendum alteri, quod nobis nolumus. Ita expedit Civitati, ut tollantur monstra, quia in deformi corpore deformis habi­ tat animus. Et quia pauperes male educantur, et improbi evadunt, ideoque Reipublicae expedit superfluos partus exponere.’ Ibid: … Cynici, Cirenaici, Stoici aliaeque philosophorum secte docuerunt: Nullam voluptatem natura turpem, sed lege ab hominibus confecta interdici. Nam natura sapientissima non sine causa indidit nobis appetitiones voluptatum.

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proves to be supranatural at the end, even if the Jews’ notion of salvation is natural in some sense. The natural desire as an anthropological standard fades away in the light of the common universalism of revelation. There is a universal perspective of mankind for salvation, but it cannot be reduced to man’s natural constitution. Revelation shines through natural laws of pagan antiquity, and Greek patriotism was stimulated by the general desire for salvation, but it was only an insufficient sign of the real salvation revealed by God supranaturally. Telephus, the Indian from the new world, who is introduced as a dialogue partner in Palaeologus’s Catechesis Christiana (1574), walking through the streets of Cluj and getting into dialogue with its citizens has this basic affinity for God’s promise (his soul is anima naturaliter Christiana),48 but his natural condition of existence seems to be very weak in the eyes of his interlocutors. On the other hand, Francken’s discontent with natural law has deep philosophical grounds. His extravagant undertaking of refuting theism doesn’t even allow for a natural concept of theism. In Francken’s case, the criticism of theism cannot stop at naturalising the claims for supranatural evidence of belief. The deduction of moral values from God’s revealed commands are unsatisfactory not only because of their incompatibility with a solid order of natural values, but also because of the relativity of natural law. Francken’s argumentation tends to remove the common metaphysical setting of religious and political orientations. While treating the conclusions of his holistic criticism in another manuscript,49 he draws some conclusions from this collapse of metaphysics. Contrary to Palaeologus’s colourful syncretic imagination, the German thinker denies any possibility for the harmony of religions. Instead, Francken’s ultimate vision depicts an annihilation of political values. The systems of values in the world are expressed in respectively incommensurable political and religious usages of speech which cannot be intermediated. This was Francken’s radical answer to Grotius’s later formulated famous thought experiment De iure belli ac pacis concerning natural values and laws which were true even if there was no God.50 48 49 50

Cf. Jacobus Palaeologus, Catechesis Christiana dierum duodecim, ed. Růžena Dostálová, Biblioteka pisarzy reformacyjnych, 8 (Warszawa: Państwowe Wydawnictwo Naukowe, 1971), pp. 121–​122. Palaeologus’s work was not printed until the twentieth century. Christian Francken, ‘Spectrum diurnum Genii Christiani Francken apparens malo Simonis Simonii Genio’ in Simon, Die Religionsphilosophie Christian Franckens, pp. 185–​203. Hugo Grotius, De ivre belli ac pacis libris tres in quibus ius naturae, gentium, item iuris publici praecipua explicantur (Paris, 1625), Prolegomena [n.p.]: Et haec quidem quae jam diximus [scil. concerning natural law –​j.s.] locum haberent, etiam si daremus, quod sine summo scelere dari nequit, non esse Deum.

150 Simon Francken refuses God not only as the upholder of the normativity of divine commands from a voluntarist point of view, but as the highest instance of the intellectual order of natural values and laws as well. According to Francken’s radical view, Grotius’s claim is theoretically false: denying the existence of God eliminates any voluntarist as well as intellectual normativity of laws at once. For Palaeologus and Francken, natural law functioned as a critical tool against claims for certainty of revealed religions. They also shared the general radical Protestant attitude towards eliminating confessional differences. But at the same time, the latent universal tendency hiding in the idea of natural law meant a challenge for their conceptions. This implied that decisive features of their achievements concerning natural law were divergent from the secularising developments in Grotius and his followers. Palaeologus based his removal of the exclusivity of revealed religions on a universal enfolding of supranatural divine grace –​even the elementary human struggle for salvation described as natural law proves to be dependent upon God’s unique grace. On the other hand, Francken regards the universalistic approach of radical reformation as a failed project. The philosophical reason for this failure lies in the very fact that even humanity as such, i.e. without the support of God’s grace, cannot assure us a solid basis for natural law. From the point of view of later natural law theorists, Palaeologus remained too indebted to supranatural motifs of universalism, while Francken was not able to set aside the relativism of natural values. For Palaeologus, the natural state of humanity was not natural enough, while for Francken, the natural state of humanity was philosophically impossible. Although they cannot be regarded as forerunners of natural law theories, they perceived with comparable sensitivity the problems of universal natural law which natural law theorists had to face in the seventeenth century. As a result of their awareness of the challenge of universalism, theoretical treatment of natural law was no longer a denominational issue; natural law appeared on the universal scene of interconfessional relations among monotheistic religions in both Palaeologus’s and Francken’s cases. This expansion of perspective makes up their modernity.51

51

The research was supported by the Hungarrian Scientific Research Fund (otka 137963). I am deeply indebted to Hans Blom for his suggestions for the refinement of my chapter.

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Secondary Literature

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Adelung, Johann Christoph, Geschichte der menschlichen Narrheit. Leipzig: Weygand, 1786. Averroes, ‘Sermo de legibus’, (Destructio Destructionum Philosophiae Algazelis, de physicis disp. 4) in Aristotelis Opera cum Averrois commentariis, Venetiis: Iunta, 1562 (Nachdruck Frankfurt am Main: Minerva, 1962), Vol. 9, 146r-147​v. Diodorus Siculus, Bibliotheca Historica, ed. by Fr. Vogel. Stuttgart: Teubner, 1888. Epicteti Philosophi stoici Enchiridion, in quo ingeniossissime docetur, quaemadmodum ad animi tranquillitatem beatitudinemque praesentis vitae invenire possit. Ed. by Christian Francken, Claudipoli: Heltai, 1585. Francken, Christian, ‘Spectrum diurnum Genii Christiani Francken apparens malo Simonis Simonii Genio’, in Simon, Die Religionsphilosophie Christian Franckens, pp. 185–​203. Francken, Christian, ‘Disputatio inter Theologum et Philosophum de incertitudine religionis Christianae’, in Simon, Die Religionsphilosophie Christian Franckens, pp. 151–​182. Grotius, Hugo, De ivre belli ac pacis libris tres in quibus ius naturae, gentium, item iuris publici praecipua explicantur. Paris: Bvon, 1625. History of Herodotus, transl. George Rawlinson. London: Murray, 1862. Palaeologus, Jacobus, Catechesis Christiana dierum duodecim, ed. by Růžena Dostálová, Biblioteka pisarzy reformacyjnych, 8. Warszawa: Państwowe Wydawnictwo Naukowe, 1971. Palaeologus, Jacobus, Epistola Iacobi Palaeologi, De Rebus Constantinopoli & Chii cum eo actis, lectu digna. Ursel: Heinticus, 1594.

Balázs, Mihály, ‘Der siebenbürgishe Unitarismus. Zum Forschungsstand’, in Radikale Reformation. Die Unitarier in Siebenbürgen. Studia Transylvanica 44. Ed. by Ulrich A. Wien, András F. Balogh and Juliane Brandt, Köln: Böhlau Verlag, 2013. pp. 11–​36. Balázs, Mihály, ‘György Enyedi zwischen Palaeologus und Faustus Socinus. Anmerkungen zum unbekannten György Enyedi’, in György Enyedi and Central European Unitarism in the 16th-​17th Centuries, ed. by Mihály Balázs and Gizella Keserű. Budapest: Balassi Kiadó, 2000. pp. 15–​22. Balázs, Mihály, ‘Von Valla bis Bodin. Uber den literaturhistorischen Kontext der Disputatio scholastica von Jacobus Palaeologus’, in Kritische Religionsphilosophie. Eine Gedenkschrift für Friedrich Niewöhner, ed. by Wilhelm Schmidt-​Biggemann and Georges Tamer. Berlin-​New York: De Gruyter, 2010. pp. 111–​129.

152 Simon Balázs, Mihály, Early Transylvanian Antitrinitarianism (1566–​1571) –​from Servet to Palaeologus, Bibliotheca dissidentium, Scripta et studia 7. Baden-​Baden: Koerner, 1996. Biagioni, Mario, ‘Christian Francken e la crisi intellettuale della riforma’ in Christian Francken: Opere a stampa. Ed. by Mario Biagioni. Rome: Ed. di Storia e Letteratura, 2014. pp. 6–​75. Biagioni, Mario, ‘Christian Francken e le origini cinquecentesche del trattato De tribus impostoribus’, Bruniana & Campanelliana, 16/​1 (2010), pp. 237–​246. Biagioni, Mario, ‘Christian Francken sceptical: a reply to József Simon’, Bruniana & Campanelliana, 19/​1 (2013), pp. 179–​185. Biagioni, Mario, ‘Il problema del criterio di verità nella Disputatio de incertitudine religionis Christianae di Christian Francken’, Rinascimento, 11 (2008), pp. 469–​480. Biagioni, Mario, ‘L’unicità della ragione: l’evoluzione religiosa del gesuita Christian Francken’, in La Centralità del Dubbio. 2 vols. Restauri storiografici: un progetto di Antonio Rotondò, ed. by Camilla Hermanin and Luisa Simonutti. Firenze: Leo S. Olschki, 2011. i, pp. 235–​260. Biagioni, Mario, The Radical Reformation and the Making of Modern Europe. A Lasting Heritage. Leiden-​Boston: Brill, 2017. Catalogus translationum et commentariorum: Mediaeval and Renaissance Latin Translations and Commentaries. Vol. 9, ed. by Virginia Brown, James Hankins and Robert Andrew Kaster. Washington DC: Catholic University of America Press, 2011. Firpo, Massimo, Antitrinitari nell’Europa orientale del ‘500. Nuovi testi di Szymon Budny, Niccolò Paruta e Iacopo Palaeologo. Firenze: La nuova Italia, 1977. Keserű, Bálint, ‘Christian Franckens Tätigkeit im ungarischen Sprachgebiet und sein unbekanntes Werk “Disputatio de incertitudine religionis Christianae” ’, in Antitrinitarianism in the Second Half of the 16th Century, ed. by Róbert Dán and Antal Pirnát. Budapest: Akadémiai Kiadó, 1982. pp. 73–​84. Molnár, Antal, ‘Az inkvizíció börtönében’, in Redite ad cor. Tanulmányok Sahin-​Tóth Péter emlékére. Ed. by Krász Lilla and Oborni Teréz. Budapest: elte Eötvös Kiadó, 2008. pp. 485–​497. Mulsow, Martin, ‘Adam Neusers Brief an Sultan Selim II. und seine geplante Rechtfertigungsschrift. Eine Rekonstruktion anhand neuer Manuskriptfunde’, in Religiöser Nonkonformismus und frühneuzeitliche Gelehrtenkultur, ed. by Friedrich Vollhardt. Quellen und Darstellungen zur Geschichte des Antitrinitarismus und Sozinianismus in der Frühen Neuzeit, 2. Berlin: De Gruyter, 2014. pp. 293–​318. Paganini, Gianni, ‘Premessa: Scetticismo e religione in Christian Francken’ in Christian Francken: Opere a stampa. Ed. by Mario Biagioni. Rome: Ed. di Storia e Letteratura, 2014. pp. ix–​x ix. Pirnát, Antal, ‘Arisztoteliánusok és antitrinitáriusok’, Helikon, 17/​3–​4 (1971), pp. 363–​392. Pirnát, Antal, Die Ideologie der Siebenburger Antitrinitarier in den 1570er Jahren. Budapest: Verlag der Ungarischen Akademie der Wissenschaften, 1961.

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Rothkegel, Martin, ‘Iacobus Palaeologus und die Reformation: Antireformatorische Polemik in der verlorenen Schrift “Pro Serveto contra Calvinum” ’, in Radikale Reformation. Die Unitarier in Siebenbürgen. Studia Transylvanica 44. Ed. by Ulrich A. Wien, András F. Balogh and Juliane Brandt, Köln: Böhlau Verlag, 2013. pp. 91–​134. Rothkegel, Martin, ‘Jacobus Palaeologus in Constantinople, 1554–​ 5 and 1573’, in Os-​manlı İstanbulu IV. Ed. by Emrah Safa Gürkan, İstanbul: İstanbul 29 Mayıs Üniversitesi Yayınları, 2017. pp. 977–​1004. Scattola, Merio, Das Naturrecht vor dem Naturrecht. Zur Geschichte des ›ius naturae‹ im 16. Jahrhundert. Tübingen: Niemeyer, 1999. Simon, József, ‘Metaphysical Certitude and Plurality of Religions: Christian Francken and the Problem of Philosophical Libertinism in Early Modern Eastern Europe’, Bruniana & Campanelliana, 19/​1 (2013), pp. 165–​178. Simon, József, Die Religionsphilosophie Christian Franckens (1552–​1610?): Atheismus und radikale Reformation im Frühneuzeitlichen Ostmitteleuropa, Wolfenbütteler Forschungen Bd. 117. Wiesbaden: Harrassowitz, 2008. Szczucki, Lech, ‘Polish and Transylvanian Unitarianism in the Second Half of the 16th Century’, in Antitrinitarianism in the Second Half of the 16th Century, ed. by Róbert Dán and Antal Pirnát. Budapest: Akadémiai Kiadó, 1982. pp. 215–​230. Szczucki, Lech, W kręgu myślicieli heretyckich. Wrocław: Zakład Narodowy im. Ossolińskich, 1972. pp. 122–​195 =​‘Philosophie und Autorität. Der Fall Christian Francken’, in Reformation and Frühaufklärung in Polen. Studien über den Sozinianismus und seinen Einfluß auf das westeuropäische Denken im 17. Jahrhundert, ed. by Paul Wrzecionko. Göttingen: Vandenhoeck & Ruprecht, 1977. pp. 157–​243. Wijaczka, Jacek, Christian Francken, Bibliotheca dissidentium, 13. Baden-​ Baden: Koerner, 1991. Winiarczyk, Marek, ‘Der erste Atheistenkatalog bei Kleitomakhos’, Philologus, 120 (1976), pp. 32–​46.

­c hapter 7

Natural Law, Contingency and History in the Legal Thought of Francisco Suárez Dominique Bauer 1

Introduction

Francisco Suárez (1548–​1617) is generally considered one of the most important philosophers of a complex era, an eclectic age of transition, overlap and coincidence in which, as Benjamin Hill termed it, Suárez ‘seems to have slipped between the cracks in our historiographical taxonomy’. On the rather under-​explored crossroads, as he calls them, between the Middle Ages, the Renaissance, rationalism and scholasticism, Suárez develops a legal and political philosophy through synthesizing, reworking and focusing scholastic tradition within a unified system that is no longer conceived as a commentary, and by simultaneously pointing forward to innovative strands within modern philosophy.1 Within the framework of a rigorous definition of (the) law(s) and a novel demarcation of the legal realm, Suárez elaborately analyzes natural law in the second book of his De legibus ac Deo legislatore,2 De lege aeterna et naturali ac iure gentium (1612).3 In general, natural law concerns ‘the faculty of the rational creature4 to distinguish between good and evil’.5 Explained in a more detailed 1 On the complex categorization of Suárez, between medieval philosophy (300–​ 1500), Renaissance philosophy (1450–​ 1600), and Early Modern philosophy (1600–​ 1800), see Benjamin Hill’s very insightful Introduction in The Philosophy of Francisco Suárez, ed. by Benjamin Hill and Henrik Lagerlund (Oxford: Oxford University Press, 2012), pp. 1–​21; quotation at p.2. As to the vast literature on Suárez, I refer to the bibliography published by Jean-​ Paul Coujou. Bibliografía suareciana (Navarra: Servicio de Publicaciones de la Universidad de Navarra, 2010). 2 The standard edition used is: Francisco Suárez, Opera omnia (Parisiis: Apud Ludovicum Vives, 1856–​1878), vol. 5 (including book i and ii) –​6 (including book vii). De legibus will be referred to throughout this contribution as dl. 3 dl ii.1–​12 treat eternal law and natural law, 13–​20 treat ius gentium. 4 In God as lawgiver it would be eternal law: dl ii.5.14: ‘In legislatore non est aliud quam lex aeterna’. 5 In book i: De lege in communi eiusque natura, causis et effectibus; dl i.3.10: ‘Cum in ea posita sit discretio inter honestum et turpe in rationali natura’.

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manner in book ii, natural law is ‘an actual judgement of the mind’, but it is not just that. At the same time ‘also the natural light of reason can be called natural law’,6 ‘because when people do not think anything or do not make a judgement, they still (still) preserve natural law in their heart’.7 ‘The light of reason bears natural law, like ‘a permanent sign’,8 like a written law in itself, and can enact it at any time’.9 Natural law is one10 and it is always the same, in all people and everywhere.11 In this contribution it is studied how Suárez scrutinizes natural law within the framework of a novel legal language and methodology and of a new demarcation of the legal realm that he presents in book i. Important formal key-​elements of Suárez’s language and methodology, like necessity, completeness and self-​sufficiency, or, more qualitative aspects of his system, like auto-​foundation, obligation and freedom operate on interconnected epistemological, legal and theological levels. For example, adequately defining things, or, ‘properly speaking and speaking properly’ as Suárez will term it, is treating them as things as such, in themselves. Also legal realities or entities exist in this sense, like the legislator, or the political community, the so-​called communitas perfecta. The perfection of the communitas perfecta resides in its self-​sufficiency which in its turn determines its very existence as a legal reality. Or, the auto-​foundation of law also includes a mimetic relationship with the rational, free being that meets its very purpose in the rationality of the law. Suárez’s system is fundamentally ahistorical,12 and yet at various instances effects an ex negativo evocation of historical, contingent reality, a dynamic in which for example historical exempla, traditionally timeless and still current, can become mere historical examples. It is therefore revealing of a very

6 7 8 9 10 11 12

dl ii.5.14: ‘Non solum est actuale iudicium, vel imperium: sed etiam lumen ipsum’. dl ii.5.14: ‘Quia quamvis homines nihil actu cogitent, aut iudicent, naturalem legem retinent in cordibus suis’. dl ii.5.14: ‘Permanens signum’. dl ii.5.14: ‘Quod veluti permanenter continet scriptum illam legem, et potest semper actu illam repraesentare’. dl ii.8.2: ‘In unoquoque homine plura esse naturalia praecepta; ex omnibus vero componi unum ius naturale’. dl ii.8.5: ‘Hanc legem quoad substantiam in omnibus hominibus esse unam’. Ahistorical needs to be distinguished from anti-​historical. Robert C. Miner, who discusses the historiography on Suárez’s relation to tradition, maintains that, because of his extremely profound knowledge of scholastic tradition, it would be absurd for that reason to refer to Suárez’s approach as being ‘radically anti-​historical’: Robert C. Miner, ‘Suárez as Founder of Modernity: Reflections on a Topos in Recent Historiography’ History of Philosophy Quarterly, 18/​1 (2001), pp. 17–​36, esp. at pp. 22–​24.

156 Bauer particular régime d’historicité, to use François Hartog’s term.13 Also natural law that is one, unchangeable and the same in all people everywhere, is caught up in these dynamics of negative demarcation. 2

Inner Necessity and the Definition of Law

In De legibus, Suárez develops a concept of law and legal language that opposes traditional ways of expression. Suárez rejects traditional metaphorical, analogical or semantic approaches. He states for example that ‘what concerns the origin of a word, is an uncertain thing and of little importance’,14 thus rejecting the relevance of semantic contexts. Instead, he presents a deductive, autoreferential definition of law that resides in making its inherent and essential characteristics explicit. The first step in this process consists in considering the law in itself and more precisely in demonstrating why the law necessarily exists. Natural law will be approached in the same way, as invariable and immutable law that can be considered in itself and that exists necessarily. This means that its real existence can be abstracted from the context and circumstances of its application and the actual existence of its precepts. As James Gordley pointed out, this radically intellectualist approach implied a restricted, exhaustive framework of circumstances in which the precepts of natural law were to be 13

14

This term is used in the seminal study on historicity by François Hartog. Régimes d’historicité. Présentisme et expériences du temps (Paris: La librairie du XXIe siècle, 2012) where it denotes the awareness, experience and understanding of the present, the past and the future, the past for example as a timeless exemplum in the present or, on the contrary, as elusive, arbitrary and contingent, the future as an unknown possibility. dl i.1.9: ‘Unde autem vox derivata sit incertum sit, et parum refert’. Order or propension of nature (ordinis seu propensionis naturae) that is explicitly distinguished from natural law in the proper sense of the word that is in people (dl i.1.2: ‘Nunc per naturalem non intellegimus illam, quae est in hominibus’) is to Suárez but a law in the metaphorical sense of the word, ‘as things that lack reason are nor capable to receive law, neither to obey’: dl i.1.2: ‘Metaphorica est: nam res carentes ratione non sunt proprie capaces legis, sicut nec obedientiae … per metaphoram lex appelatur’. Rules applying to non-​reasonable creatures can only in a metaphorical or analogous sense denote a rule, but are no rules in the legal sense of the world, and can therefore be omitted from the realm of law: dl i.3.9-​10: ‘Nihilominus simpliciter est metaphorica et valde analoga … Lex ergo naturalis propria …’ see also more in particular on the distinction between the analogical approach to defining the law with Thomas of Aquinas and Suárez’s rejection of this ‘metaphorical’ understanding: Michel Bastit, Naissance de la loi moderne. La pensée de la loi de Saint Thomas à Suárez (Paris: Presses universitaires de France, 1980), 290 and Idem, ‘Interprétation analogique de la loi et analogie de l’être chez Suárez: de la similitude à l’identité’, Les Études philosophiques, 3/​4 (Juillet-​Décembre, 1989), pp. 429–​443.

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applied: ‘Once a precept of natural law has been properly interpreted, we can be certain about the proper course of action’. Knowing seamlessly integrates straightforward application, the contextuality or contingency of which does not seem to be taken into account. Therefore, as Gordley states: ‘Such precepts … ignore the complexity and new possibilities of human history’.15 The various types of law exist necessarily, a necessity that, apart from Suárez’s encompassing theocentric view, is understood in the anthropological framework of the rational, free creature. The anthropological framework that defines the sphere of human, intelligent, rational reality, is an extremely important element of Suárez’s legal theology and of his legacy to Early Modern political thought. At various instances (e.g. i, i, and i, iii, 8–​9) Suárez explicitly states that law only applies to beings who possess reason and freedom.16 Only in a metaphorical way –​with metaphor opposing the notion of inherent quality, proprietas, –​law applies to inanimate creatures or animals, ‘because they do not dispose of reason, neither of liberty’.17 A long evolution of natural law/​rights thought thus finds its ultimate affirmation in the work of Suárez.18 Jean Gerson already argued, though not very straightforwardly, that human beings enjoyed natural rights in a different way from other beings, because human beings were endowed with reason. Summenhart understood ius and dominium to apply to both rational and irrational creatures, although he also maintained that dominium pertaining to rational creatures was something different. In accordance with the importance of the notion of actualization of natural law in the rational creature, is that Gerson, in his Tractatus de potestate ecclesiastica et de origine iuris et legum, describes ius as a ‘potestas, seu facultas propinqua’, a proximate faculty ‘that befalls a person through the dictate of primary justice’.19 As Jussi Vaarkeema 15 16 17 18 19

James Gordley. ‘Suárez and Natural Law’ in The Philosophy of Francisco Suárez, ed. by Hill and Lagerlund, p. 221. In the sense of a freedom informed by the judgement of reason: William E. May ‘The natural Law doctrine of Francisco Suárez’ The New Scholasticism, 58/​4 (1984), pp. 409–​423; esp. pp. 410–​412. dl i.3.9: ‘Lex non attribuitur rebus insensibilibus secundum proprietatem, sed secundum metaphoram … Animalia etiam bruta non sunt capacia proprie legis, cum nec ratione nec libertate utantur’. On this evolution in the work of Jean Gerson (1363–​1429), Conrad Summenhart (1450–​ 1502) and Spanish scholasticism and Suárez, see: Alejandro Guzmán Brito, El derecho como facultad en la Neoescolástica española del siglo XVI (Madrid: Lustel, 2009). Jean Gerson, Tractatus de potestate ecclesiastica et de origine iuris et legum, in Opera omnia, ed. by L.E. du Pin (Hildesheim Olms, 1987), ii, pp. 225–​260, 250: ‘Ius vero sic describitur, ius est potestas, sive facultas propinque conveniens alicui secundum dictamen primae justitiae’.

158 Bauer notes, proximate denotes an ‘active potency, a power to exercise actions’.20 It is interesting to point out in this context the clear parallel between ius as facultas and the actualization of natural law in terms of a judgement of the mind that is enacted by the light of reason.21 Against Summenhart and Gerson, Francisco de Vitoria argues in a revolutionary way that only human beings could have dominium, thus asserting the unique value of the human person. Crucial, also with regard to Suárez’s thought on political community, is the fact that the autonomy of the person is also that of the political community.22 Suárez takes this evolution to its final consequences, by treating law in general and the rational being both as the source and as the keystone of juridico-​legal philosophy in which the ontological necessity of law necessarily flows from the rational being as a by definition political being and the rational being’s submission to law and the lawgiver are an act of self-​legislation. With Suárez, the law, the rational being and the rational community, the latter being only called legal and political in the full, perfect sense of the word as a communitas perfecta, are tied together in a mimetic relationship of identity. On the one hand, the necessity of the law’s existence is rooted in the rational being that thus lives ‘by its nature’23: ‘given the condition of rational nature,

20 21 22

23

Jussi Varkemaa, ‘Justification through Being: Conrad Summenhart on Natural Rights’ in Moral Philosophy on the Treshold of Modernity. ed. by Jill Kraye and Risto Saarinen (Dordrecht: Springer, 2005), pp. 81–​194; 186. See note 9. In Vitoria’s Relectio de Indis, the foremost implication of the shared humanity of all peoples in the sense of a shared rationality is that of self-​possession. Human beings have a shared dignity in their common rational nature, on the basis of which all reasonable being are entitled to property, also the indigenous people of Latin America. The barbari have established a ‘certain order, they have organized cities, they have the institution of marriage, they have laws and commerce etc. all of which are a sign of the use of reason’. Precisely for this reason it must be concluded that ‘they are true proprietors and therefore, neither they nor their kings can legitimately be deprived from their belongings’: ‘Habent ordinem aliquem in suis rebus, postquam habent civitates … et habent matrimonia distincta, … leges … communitationes’ … quod est indicium usus rationis … barbari erant et publice et privatim veri domini … nec hoc titulo potuerunt spoliari aut principes, aut privati rebus suis, quod non essent veri domini’: Francisco de Vitoria, Relectio de Indis o liber­ tad de los Indios, Corpus Hispanorum de Pace, 5. ed. by Luciano Perena and José Maria M. Perez Prendes (Madrid: Ed. csic, 1967). On Vitoria and this shared rational nature and humanity, see: Angela A. Mirallas, Derecho a la paz y derecho a la guerra (Granada: Ed. Comares, 2007), pp. 36–​52. On Gerson and Summenhart, see: Brian Tierney. The Idea of Natural Rights (Cambridge: Cambridge University Press, 2007), pp. 228; 248–​249; 267–​ 268; Jussi Varkemaa. Conrad Summenhart’s Theory of Individual Rights (Leiden: Brill, 2011). dl i.3.3: ‘Convenienter suae naturae vivere possit’.

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the law is in this way necessary’.24 Furthermore, without a rational being that is by nature subjected to the law, there would be no law.25 As Suárez states in dl ii.1.1: ‘The law is an act of governance and there cannot be governance unless there is somebody to be governed’.26 This somebody, the rational being, is however not submitted to an alien force in an act of forced submission, on the contrary. The act to submit oneself to a legislator, is inherent to the rational creature and the rational community that in submission engages in an act of self-​legislation. The seventh book of De legibus, De lege non scripta on custom, offers interesting insights in this respect.27 Here, Suárez underlines for example that when a community ‘possesses legislative power over itself’, and in that sense constitutes a communitas perfecta, like ‘a state or something similar’, it can properly introduce custom.28 Significantly and again underlining the similar nature of the self-​possessing legal subject and the self-​legislating communitas perfecta, ‘this power should not be understood as an actual power, but as a capacity to such active power that is necessary to have a communitas perfecta; every communitas perfecta however is inherently capable of such power, in short, it defines it’.29 Just like the legal subject and the legal community are understood in terms, not of a private, empirical individual or a factual community (a communitas imperfecta) but in terms of an abstract, citizen or a communitas perfecta embodying reason, also the legislator is not a ruler in terms 24 25 26 27 28

29

dl i.3.3: ‘Et hoc modo dicimus necessariam esse legem, supposita conditione naturae rationalis’. dl i.3.3: ‘Ergo connaturale est et necessarium tali creaturae, ut subdatur alicui superiori, a quo per imperium seu legem regatur’. dl ii.1.1: ‘Quia lex est actus imperii; repugnat autem esse imperium nisi sit aliquis cui imperetur’. For a more detailed analysis, see: Dominique Bauer. ‘Custom in Francisco Suárez’ De lege non scripta. Between Factuality and the Legal Realm’, Anuario de derecho canónico, 4 (2015), pp. 1–​19. dl vii.9.6: ‘Dicendum est consuetudinem juris non a quaecumque communitate introduci posse, sed ab illa quae sit capax potestatis legislativae pro seipsa … Haec assertio communis est, quoad hoc, ut ad consuetudinem introducendam requiratur communitas perfecta, qualis est civitas, vel alia similis.’ dl vii.9.7: ‘Quia non et necessarium ut actu illam [potestatem legislativam] habeat... Capacitas autem talis potestatis activae necessaria est, quia debet esse communitas perfecta; omnis autem communitas perfecta est, de se, capax hujus potestatis, …’ The similarity between the legal subject and the communitas perfecta is also enhanced by the fact that, following Thomas of Aquinas, Suárez underlines that this community must be a free republic: ‘Debere essere aut rempublicam liberam.’ Ius in the sense of a moral capacity is also rooted in the self-​possession of man through reason, which defines him as a free being: F. T. Baciero Ruiz, ‘El concepto de derecho subjetivo y el derecho a la propiedad privada en Suárez y Locke’, Anuario Filosófico, 45 (2012), 391–​421, at 396.

160 Bauer of a (private) person: ‘The law does not result from the person, unless in his capacity to bear power, and the law always depends of this power, in whatever person it is present’.30 In a context of such inherent reciprocity, the rational being finds its ultimate purpose and ground as a socio-​political being in the common good, like also the common good is the ground of the law. In the framework of Suárez’s legal theology, law is necessary, for it possesses what could be called contingent necessity, rooted in the rational being.31 It pertains to the nature of the rational creature to submit itself to a superior authority, the legislator, who can impose rule. The capacity to be governed –​Suárez uses the expression of being capable to be subject to moral governance (gubernatio moralis) –​is inherent to the intelligent being and therefore law is necessary.32 Without the law, the rational being cannot live according to its nature. The necessity of law, its rationality and self-​legislation are finally very much connected with Suárez’s deductive approach to the law as such. Suárez wants to deal with law ‘properly speaking’ and ‘speaking properly’.33 His deductive approach of law is closely connected to his general take on knowledge, knowledge that is developed according to the conceptual order of things, which he follows both in his Disputationes metaphisicae and in De legibus. The reason for this is explained in the Ratio et discursus totius operis that precedes the Disputationes metaphisicae. In this remarkable piece on methodology and conceptual structure, Suárez states that, because he wants to gain insight in 30

31

32 33

dl vi.1.2: ‘Lex non procedit a persona nisi ut habente potestatem, et lex semper pendet ab eadem potestate’. As João Manuel Fernandes underlines in his work on Suárez’s theory of interpretation, in which he also interprets these iconic lines, the legal dimension of a law by definition consists in envisioning the common good, not as an external goal but as its very essence, that is distinguished from what the actual lawgiver may have intended as a private person: João Manuel Azevedo Alexandrino Fernandes, Die Theorie der Interpretation des Gesetzes bei Francisco Suárez (Frankfurt am Main: Lang, 2005), pp. 3; 73–​74. As Fernandes poignantly states (58): ‘Die Person des Gesetzgebers interessiert Suárez nicht, nur sein Gesetz’. Suárez mentions at various instances the difference between the ruler as a private and as a public, legal person, as also in the introduction to book vii on custom, where the personal rule of a king is clearly distinguished from a legal community; see note 54. Because the rational creature has no absolute necessity, neither has the law: dl i.3.2: ‘At creatura rationalis non habet absolutam necessitatem essendi: ergo nec lex habet huiusmodi necessitatem’. The law only exists in function of the rational being, and can only be imposed to a free being and apply to free acts: dl i.3.2: ‘Tantum esse posse propter creaturam rationalem: nam lex non imponitur, nisi naturae liberae, nec habet pro materia nisi actos liberos’. dl i.3.3: ‘Et quia intellectualis est, capax est gubernationis moralis’. dl i.1.1: ‘Sub lege propria …’ dl i.1.6: ‘Proprie, et simpliciter loquendo, …’ dl i.1.7: ‘Proprie tamen loquendo de lege …’.

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things, he does not want to treat metaphysics in a random way, like the commentators do who follow the casual order of things in the work of Aristotle. Instead he wants to preserve the order of doctrine in order to eventually give a comprehensive, full insight in the object under investigation, that for that matter is also, prior to further analysis, defined as such and considered in itself.34 Systematization, comprehensive, exhaustive vision and circumscription of the field, definition and abstraction in a very radical way characterize Suárez’s approach to law. The consideration of law in itself constitutes the first step in the auto-​foundation of law, in passing from showing why law as such necessarily exists to the analysis of various types of law along the same methodological lines. From this angle the approach to law seamlessly fits in with his treatment of being as such in his Disputationes metaphisicae. Like the second disputation deals with the concept of being as such (ens en quantum ens), the first book on the laws deals with the definition of law, before going into a typology of the laws. Against this shared background, the very existence and definition of law is rooted in the methodological and ontological demand of an inherent necessity of the law(s), to the risk even of a univocist definition, as Jean-​François Courtine argues: ‘The same way as in the Disputationes, where it was necessary first to define the ratio entis and thus running the risk of a univocal definition, it was necessary in De legibus first to fix a strict and proper concept of the law’.35 The consideration of law is intimately connected with several distinctive methodological or formal categories Suárez deploys. He uses in this context a specific vocabulary in which terms like absolute, necessarium, per se, ex rei 34

35

This passage paraphrases the following lines in the Disputationes Metaphysicae, Ratio et discursus totius operis, Ad lectorem: ‘Et quoniam judicavi semper, magnam ad res intelligendas ac penetrandas, in eis convenienti methodo inquirendis et judicandis, vim positam esse, quam observare, vix aut ne vix quidem possem, si expositorum more, quaestiones omnes, prout obiter et veluti casu circa textum Philosophi occurrunt, pertractarem, idcirco expeditius et utilius fore censui, servato doctrinae ordine, ea omnia inquirere, et ante oculos lectoris proponere, quae de toto hujus sapientiae objecto investigari, et desiderari poterant. Illud vero objectum, quodnam sit, explanat prima hujus operis Disputatio, simulque in ea præfamur dignitatem, utilitatem, et cætera, quæ in proœmiis scientiarum præmittere consueverunt. Deinde in priori tomo ejusdem objecti amplissima et universalissima ratio, qua videlicet appelatur Ens, ejusque proprietates, et causæ diligenter expenduntur’. Jean-​François Courtine. ‘La raison et l’Empire de la Loi’, in Francisco Suárez (1548–​ 1617): Tradiçao e Modernidade, ed. by Adelino Cardoso, António Manuel Martins and Leonel Ribeiro Santos (Lisboa: Colibri,1999), pp. 289–​310; 290-​291: ‘De même que dans les Disputationes, il fallait d’abord définir la ratio entis, en prenant le risque d’une détermination univociste’.

162 Bauer natura, ex vi rationis, iuxta naturalem play a dominant role and all relate to notions of self-​sufficiency, coherence and completeness.36 They allow him to focus on a strictly a priori necessary truth. For example, the so-​called ‘perfection’ of ‘the body politic’ (or the communitas perfecta) in book i, as will be seen, denotes the latter’s self-​sufficiency which in its turn determines its very existence as a legal reality. Methodology and formal categories mix with content and ontology. Adequately defining things, is establishing them in terms of things as such, in itself, things that subsequently exist as legal realities/​entities. Without being able to go extensively into the matter, it must suffice to point out the not unimportant fact in this context for Suárez’s understanding of natural law, that the auto-​foundation of law also includes a mimetic relationship with the rational being, the rational community and the legislator that are equally defined in terms of their rationality and that are endowed with self-​legislation that determines their legitimacy or being as legal agents or entities. Given the rational nature of the law, the rational being’s/​community’s submission to it constitutes an act of direct self-​regulation. It is precisely for this reason and within this same mimetic logic that natural law, as an ‘enduring sign’,37 is intrinsic to the rational creature. 3

Necessity, Coherence and Self-​Sufficiency

The understanding of law as such and its nature of necessity plays at various levels. First, coherence and completeness define the broadest framework in which law is necessarily to be set: that of theology. In his prologue to the De legibus for example, Suárez states that the matter of law and the laws ‘is part and parcel of the field of theology’.38 Law not only finds its absolute finality and therefore ultimate cornerstone in obtaining eternal life: ‘All rules are a norm for human conduct with respect to the conscience and, consequently,

36

37 38

Very interestingly, Francisco Carpintero points out that the use of these and similar terms constitutes a new ‘expository tone’ that indicates ‘a new discourse that first and foremost wants to regulate reality, because it wants to express the strictly necessary a priori truth’ (my italic): ‘Un nuevo discurso que pretende ante todo normar la realidad, porque quiere expresar la verdad estrictamente necesaria a priori’: Francisco Carpintero, Justicia y ley natural: Tomás de Aquino, y los otros escolásticos (Madrid: Universidad Complutense Facultad de Derecho, 2004), p. 320. See above, note 8. dl, Proœmium,: ‘Ad sacrae doctrinae considerationem spectare’.

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the extent in which they influence deserving or not eternal life’.39 This absolute finality also denotes the absolute coherence on the level of understanding law in itself. Things can only be considered in themselves from the totality of a field. Therefore, it is on the one hand indispensable for jurisprudence, in order to have a truly scientific dimension, to subordinate itself to philosophy.40 On the other hand, in order to be considered in both the most general sense as such and in its concrete appearances as such, law must be considered to be part of theology. Second, working from this broadest possible framework towards the smaller objects of knowledge, the same principles of coherence and self-​sufficiency are applied. When Suárez treats the distinction between the communitas perfecta and the communitas imperfecta, one of the fundamental elements that determines the imperfect nature of the communitas imperfecta is that the latter is not self-​sufficient, whereas the communitas perfecta as a truly political body is.41 Two aspects or consequences of Suárez’s deductive understanding of the law, with its stress on coherence and conceptual self-​sufficiency, need to be concisely addressed: the inherent necessity and the ahistorical nature of the law. Law, from the very possibility of its existence and that of its various types, results from an inherent necessity (necessitas). The notion of inherent necessity that the Doctor Eximius brings explicitly forward in book i, to a fundamental extent expresses law as a mimetic reality that extrapolates the self-​legislation of the rational being and of the communitas perfecta, and that ultimately mirrors its foundation and final goal, Deus legislator, as the final soteriological and epistemological principle of coherence. Book i offers a number of examples of how Suárez applies inherent necessity. In chapter iii for example, Suárez evinces the existence of law by demonstrating its necessity. He deems this undertaking necessary before analysing the very nature of the law.42 The necessity of law is subsequently connected with the necessity of the rational being’s self-​submission. Bringing forward his central idea of the rational being’s self-​submission, Suárez maintains that it is ‘conatural and necessary for such creature to submit itself to a superior by the

39 40 41 42

dl, Proœmium: ‘Leges omnes mensurae sint humanarum actionum in ordine ad conscientiam, et consequenter quantum ad meritum et demeritum aeternae vitae conferant’. dl, Proœmium, ‘Ideoque, ut aliquam verae scientiae rationem participet, philosophiae coniugi seu subalternari necesse est …’. dl i.6.20: ‘Illa communitas non est sibi sufficiens’ … dl i.6.21: ‘Omnis communitas perfecta est proprium corpus politicum’. dl i.3.1: ‘Antequam inquiramus quid lex sit, oportet prius ostendere illam esse’.

164 Bauer rule or law of which he is governed’.43 ‘Such law is necessary in order to live conveniently in accordance with its nature’.44 Given the condition of a rational nature, it can be said that the law is necessary. Thus, the law necessarily exists because the act to submit oneself to it is inherent to the rational creature. 4

The Binding Nature of Law

The rational creature’s and community’s self-​legislation most of all reflects what is to Suárez the absolute distinguishing and exclusive feature of law, namely its binding nature.45 The inner necessity of the law fuses with its per se obligatory nature that matches a rational being’s capacity to be obliged. Again, various examples can be mentioned. Laws cannot just show what is good and evil; they can never be just indicative. If, as in the case of complete ethical objectivism, actions that are inherently good or evil would cause us to do or omit them, laws would not command or prohibit anything. Going against this line of thought, Suárez states at various instances that for the good to be an obligation and the bad to be prohibited, an act of will of a commanding superior is fundamental. In the first chapter, on the definition of law, Suárez argues that ‘properly speaking about law, like here, law is only law when it imposes some obligation’.46 Therein also resides the difference between law and counsel. ‘Counsel falls outside the description of law, because it is not, properly speaking, the rule and the measure of the goodness of the act’. Viewed morally, it does not efficiently oblige to act, that is to say, by imposing ‘a moral necessity

43 44 45

46

dl i.3.3: ‘Ergo connaturale est et necessarium tali creaturae ut, subdatur alicui superiori, a quo per imperium seu legem regatur’. dl i.3.3: ‘Aliqua talis lex est illi simpliciter necessaria, ut convenienter suae naturae vivere possit’. Among recent works on law and obligation with Suárez, see especially: Terence Irwin. The development of Ethics. vol. 2: From Suárez to Rousseau (Oxford : Oxford University Press, 2008), pp. 2–​27; Jean-​François Courtine, Nature et empire de loi and Tilmann Altwicker, ‘Gesetz und Verpflichtung in Suárez’ De Legibus’, in Transformation des Gesetzbegriffs im Übergang zur Modernen? Von Thomas von Aquin zu Fransisco Suárez. ed. by Manfred Wahlter, Norbert Brieskorn and Kay Waechter (Stuttgart: Steiner, 2008), pp. 125–​133, who underlines that ‘An der gewissen Eigenständigkeit der Verpflichtungsdimension wird die rechtsphilosophische Diskussion des Gesetzes von nun an nicht mehr vorbeisehen können. Es zeigt sich einmal mehr, dass Suárez’ Denken mit Recht als Brücke zwischen Mittelalter und Neuzeit verstanden werden darf’ (p. 132). dl i.1.7: ‘Proprie tamen loquendo de lege, ut hic loquimur, illa non est, nisi quae aliquem obligationem inducit, …’

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to act’.47 ‘When we say that the law obliges to act, it has to be understood in that sense’.48 Very typical of this deductive approach is furthermore the ahistorical nature of law, that is explicitly set in a context that is not factual, but conceptual, not concrete, empirical or historical, but abstract. The ahistorical nature of the law, is more generally part and parcel of its acontextual nature, and is organically embedded in Suárez’s semiology of the law, that comes among others forward in Book vi, ‘De interpretatione, cessatione et mutatione legis humanae’. Michel Bastit in this respect points out that the ratio of a law is not ‘a sign situated beyond the text’ but is a sign of the will of the legislator that is therefore self-​ sufficient. As explained elsewhere, the very understanding of the historical nature of things seems to change in the context of a deductive approach to law. In the process, a distinction seems to be made between the absolute nature of law on the one hand and the level of mere historical facts on the other. The latter level seems ex negativo to constitute a level of reality in its own right.49 5

The Negative Demarcation of History

The case of natural law is very interesting in this respect. In Suárez’s work a tension exists between the ethical objectivism according to which natural law is objective and necessary and imposes itself by itself on the one hand and the role of the legislator from which legal obligation results on the other. Although, as already implied by the above mentioned examples, the role of the legislator and the concept of law as ‘an act of rule, of power or jurisdiction’ play a dominant and reiterative role in the De legibus, Suárez at the same time remains close to ethical objectivism as well. Starting from the methodological imperative of a coherent, singular, exhaustive and essentialist concept of law, natural 47 48 49

dl i.1.8: ‘Excluditur autem concilium, … vel quia non est propria regula… vel certe quia moraliter loquendo non efficaciter inducit ad opus, imponendo scilicet moralem necesitatem operandi; …’ (my underlining). dl i.1.8: ‘Cum autem lex dicitur inducere ad actum, hoc modo intelligendum est’. Bastit, ‘Interprétation analogique’, p. 434: ‘Elle n’est plus le signe d’une cause située au-​ delà du texte mais signe de la volonté du legislateur. Or, celle-​ci suffit à elle-​même’. For a more elaborate account of the ex negativo existence of history as mere contingency that results from this approach, notably in dl vii on custom, see: Dominique Bauer, ‘The Autoreferentiality of Law in the Seventh Book of Francisco Suárez’s De Legibus, De lege non scripta’, in History, Casuistry and Custom in the Legal Thought of Francisco Suárez (1548–​1617). Collected Studies, pp. 124–​138, ed. by Dominique Bauer and Randall Lesaffer (Leiden: Brill, 2021).

166 Bauer law is immutable and eternal. Suárez argues that natural law is like this, not only from the point of view of the divine mind in which it is written, but also from the point of view of the inner necessity of the behavior it regulates: ‘It forbids what is intrinsically bad, and commands that which is necessary by itself; what is necessary, is eternal’.50 On the basis of this double background, and the methodological prerequisite of only one law, it has been noted that Suárez leaves a peculiar, ex negativo space for positive law. As Francisco Carpintero states in his Justicia y Ley Natural, a passage that is interesting to quote at length: positive law, made by man, can only be compulsory on the basis of its distinctive origin: … .because it has been commanded by the person or the society that possesses legitimacy or the adequate jurisdiction, and not on the basis of its content that would only be arbitrary and conventional. Suárez dissolves the entire obligatory character of positive law in the relation of dominium or jurisdictio that the legislator has over the peoples he commands. That is to say, every rule that possesses an objective cause to exist would be part of natural law, and positive law would remain as what is imposed through authority concerning morally indifferent themes.51 In addition to this, Suárez crucially states vis-​à-​vis human law, ius gentium and private will, that ‘the very obligation to act in a particular way’, –​that is furthermore clearly distinguished from the fact that human law, ius gentium and private will may bring about ‘some change in things’ –​, flows immediately from natural law.52 50

dl i.10.2: ‘Lex naturalis … prohibit enim quae intrinsece mala sunt, et praecipit quae per se necessaria sunt; quod autem est necessarium, perpetuum est; et ideo immutabilis dicitur...’ According to Francisco Carpintero, Suárez in this sense gets close to the ethical objectivism of Gabriel Vázquez: Carpintero, Justicia y Ley Natural, pp. 323–​324. 51 Carpintero, Justicia y Ley Natural, p. 326: ‘El derecho positivo, creado por los hombres, no puede exigir obediencia desde sus contenidos (que serían arbitrarios o convencionales) sino sólo desde una particularidad de origen: Sería un derecho obligatorio porque está ordenado por la persona o sociedad que posee la legitimidad o la jurisdictio adecuada. Suárez disuelve toda obligatoriedad del derecho positivo en la relación de dominium o jurisdictio que el legislador tiene sobre las personas a las que ordena. Es decir, toda regla que posea una causa objetiva para existir compondría parte del derecho natural, y el derecho positivo queda como lo impuesto por vía de autoridad sobre temas moralmente indiferentes’. 52 dl ii.9.12: ‘Et tunc saepe fieri potest ut licet aliqua mutatio in rebus facta sit per legem humanam, aut per ius gentium aut etiam per voluntatem privatam, obligatio postea sic, vel aliter operandi immediate nascatur ex lege naturali’.

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This negative demarcation of the contingent nature of positive law, extremely radical in the mentioned case of positive law, fits into a broader approach throughout Suárez’s work to the factual, the singular, the concrete that all pertain to the realm of the extra-​legal. Very telling in this respect are distinctive passages in book vii on custom, or unwritten law (lex non scripta) in which Suárez’s understanding of self-​sufficient law, founded in obligation, precisely starts off from the undoing of the contingent, historical nature of law, and in opposing the timeless nature of law to history and historical examples as a purely contingent reality.53 In the prologue to book vii on custom, Suárez refers to the primordiality of the law in Gregory ix’s Liber Extra (1234). Custom is, as in the Liber Extra, treated after constitutions and rescripts, because according to Suárez, written law is more ‘certain and known’. Whether custom is often, but not necessarily older (antiquior) than written law, is, very significantly, not relevant in the framework of its legal dimension.54 Suárez furthermore states, in a nice example of negatively singling out the legal from the contingent extra-​legal, ‘that it may very well have been that people lived together before there was written law’. Already thinking ahead towards a more formal treatment of legally qualified custom, Suárez however maintains that ‘what they had instead, was not custom, but the personal rule of a king, which is neither law, nor custom.’55 Suárez’s point at this instance seems to be that it does not really matter what came first, and then passes onto written law as the primordial form of law, a form ‘from which custom to a large extent derives its force and significance’.56 The latter conception of the contingent nature of historical facts ex negativo occurs also in other instances throughout the De legibus. In his work on Suárez’s theory of interpretation of the law, Azevedo Alexandrino Fernandes states that the Doctor Eximius understood Roman law in the strict sense as the law of the Romans, that in no way could apply to other sovereign kingdoms. 53

54 55 56

This in, fits among others, with an equally ahistorical understanding of the legislator. As J. Schröder states in his Recht als Wissenschaft, that with Suárez and typical of Early Modern theory of interpretation, the will of the legislator ‘as a value free historical fact’ next to the ‘ratio’, does not bear any relevance; quoted in Fernandes. Die Theorie der Interpretation, p. 62. dl vii, Ordo procedendi: ‘Nam, licet consuetudo antiquior fuerit jure scripto, nihilominus jus scriptum certius est et notius, et ideo prius de illo tractari debuit’. dl vii, Ordo procedendi: ‘Nam licet prius homines coeperint sine legibus in communi vivere quam leges scriberentur, … inde non fit consuetudinem habuisse pro lege, sed regis imperium personale, quod non est lex nec consuetudo’. dl vii, Ordo procedendi: ‘Et aliunde scriptum esse praecipium, et ab illo magna ex parte pendere vim consuetudinis et intelligentiam ejus’.

168 Bauer The Corpus iuris civilis has to Suárez in this respect an important exemplary value, but its use as example should be clearly distinguished from any assertive claim that could be attached to it.57 Assertive claims in this sense can no longer be founded in historical exempla. 6

Conclusion

With Suárez, the foundation of law has become ahistorical. Law can no longer be legitimately grasped in metaphorical comparisons and analogies, semantic genealogy or vested in the dignity of antiquity. Law is on the contrary caught and articulated throughout a deductive, timeless discourse that develops the inherent content of unambiguous and self-​sufficient concepts, that are governed by inherent necessity, and completeness and that negatively. The case of natural law, with its self-​legislating free, rational being that reflects the inherent goodness and justice of actions, in a radical way exemplifies the implications of Suárez’s ahistorically deductive and mimetic approach. It fits in with very similar examples that come forward in other parts of the De Legibus, such as in book vii on custom. It shows how Suárez inscribes himself in a juridico-​philosophical setting in which the shared sinderesis of all rational beings and the unchangeability of natural law that corresponds with it, oppose the contingent dimensions of the extra-​legal reality, and yet also, timidly but radically, evoke and substantiate them: in the historical example that no longer displays current law, or in the content of positive law that would only be arbitrary or conventional, in the actual judgement, finally, of the rational being that is distinguished from the ever present light of reason that is also natural law.

Bibliography



Primary Literature

Gerson, J., Tractatus de potestate ecclesiastica et de origine iuris et legum, in Opera omnia, ed. by L.E. du Pin. Hildesheim: G. Olms Verlag, 1987. ii, pp. 225–​260. Suárez, Francisco, S.J., Opera omnia, 26 vols. Parisiis: Apud Ludovicum Vives, 1856–​1866 (De legibus: vol. v and vi; Disputationes metaphysicae: vol. xxv and xxvi).

57 Fernandes, Die Theorie der Interpretation, 89–​90.

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Vitoria, Francisco de, Relectio de Indis o libertad de los Indios, Corpus Hispanorum de Pace, 5. Ed. by Luciano Perena and José Maria M. Perez Prendes. Madrid: Consejo superior de investigaciones científicas, 1967.



Secondary Literature

Altwicker, Tilmann, ‘Gesetz und Verpflichtung in Suárez’ De Legibus’, in Transformation des Gesetzbegriffs im Übergang zur Modernen? Von Thomas von Aquin zu Fransisco Suárez. Ed. by Manfred Wahlter, Norbert Brieskorn and Kay Waechter. Stuttgart: Steiner, 2008. pp. 125–​133. Baciero Ruiz, F. T., ‘El concepto de derecho subjetivo y el derecho a la propiedad privada en Suárez y Locke’, Anuario Filosófico, 45 (2012), 391–​421. Bastit, Michel, Naissance de la loi moderne. La pensée de la loi de Saint Thomas à Suárez. Paris: Presses Universitaires de France, 1990. Bastit, Michel, ‘Interprétation analogique de la loi et analogie de l’être chez Suárez: de la similitude à l’identité’, Les études philosophiques, 3/​4 [l’Analogie] (1989): pp. 429–​443. Bauer, Dominique, ‘Custom in Francisco Suárez’ De lege non scripta. Between Factuality and the Legal Realm’, Anuario de derecho canónico, 4 (2015), pp. 1–​19. Dominique Bauer, ‘History and Auto-​Referentiality of Law in the Seventh Book of Francisco Suárez’s De legibus, De lege non scripta’, in History, Casuistry and Custom in the Legal Thought of Francisco Suárez (1548–​1617). Collected Studies. Ed. by Dominique Bauer and Randall Lesaffer. Leiden: Brill, 2021. pp. 124–​138. Carpintero, Francisco, Justicia et ley natural: Tomás de Aquino, y los otros escolasticos. Madrid: Universidad Complutense-​Facultad de Derecho, 2004. Coujou, Jean-​Paul, Bibliografía suareciana. Cuadernos de pensamiento español. Navarra: Servicio de Publicaciones de la Universidad de Navarra,, 2010. Courtine, Jean.-​François, ‘La Raison et l’empire de la loi’, in Francisco Suárez (1548–​ 1617): Tradiçao e Modernidade, ed. by Adelino Cardoso, António Manuel Martins and Leonel Ribeiro Santos. Lisboa: Edições Colibri, 1999, pp. 289–​310. Fernandes, João Manuel Azevedo Alexandrino, Die Theorie der Interpretation des Gesetzes bei Francisco Suárez. Frankfurt am Main: Peter Lang, 2005. Guzmán Brito, Alejandro, El derecho como facultad en la neoescolástica española del siglo XVI. Madrid: Iustel, 2009. Hartog, François, Régimes d’historicité. Présentisme et expériences du temps. Paris: Éditions du Seuil, 2012. Irwin, Terence, The Development of Ethics. vol. 2: From Suárez to Rousseau. Oxford: Oxford University Press, 2008. Gordley, James, ‘Suárez and Natural Law’, in The Philosophy of Francisco Suárez. Ed. by Benjamin Hill and Henrik Lagerlund. Oxford: Oxford University Press, 2012. pp. 209–​229.

170 Bauer May, William E. ‘The Natural Law Doctrine of Francisco Suárez’, The New Scholasticism, 58/​4 (1984), pp. 409–​423. Miralles, Ángela Aparisi, Derecho a la paz y derecho a la guerra en Francisco de Vitoria. Granada: Editorial Comares, 20017. Miner, Robert, C., ‘Suárez as Founder of Modernity: Reflections on a Topos in Recent Historiography’, History of Philosophy Quarterly, 18/​1 (2001), pp. 17–​36. Tierney, Brian, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law 1150–​1625. Cambridge, UK: Scholars Press for Emory University, 1997. Varkemaa, Jussi, ‘Justification through Being: Conrad Summenhart on Natural Rights’, in Moral Philosophy on the Treshold of Modernity. Ed. by J. Kraye and R. Saarinen, Dordrecht: Springer, 2005. pp. 181–​194.

pa rt 2 Hugo Grotius and Samuel Pufendorf

∵

­c hapter 8

Grotius on Natural Law: An Inventory of Propositions Arthur Eyffinger 1

Grotius’s Position in the Discourse on the Concept

In the history of ideas, the concept of natural law presents a long-​sustained train of thought. In the footsteps of Heraclitus, Western philosophy from Aristotle to the Stoics and from St. Augustine to Aquinas conceived of natural law as the dictate of right reason that, wherever civil laws fell short or were not applicable –​as notably in international affairs –​offered man overall guidance on moral issues by the measuring rod of nature and its creator.1 The concept articulated man’s participation in the eternal law that originated in God and served as fountain for all legal concepts and outpourings, divine and human. Clear-​cut and concise as this definition might seem, natural law proved a rather elusive notion. Its profile and interpretation saw dramatic change over the centuries to prompt substantial discourse. Two instances are relevant to our debate in that their implications acutely affected Grotius’s position. The first concerned the speculative query as regards the nature of God’s involvement with natural law. The dilemma gave rise to centuries of debate between the so-​called ‘intellectualist’ school of thought as eminently presented by Aquinas2 and the insistence on the will-​element in the ‘voluntarist’ perception advanced by later scholastics such as Duns Scotus and Ockham.3 To bespeak its impact, even Grotius, who lived a full three centuries later, could never ignore the discourse. To get around the dilemma, he diverted the 1 Leonard F. M. Besselink, Keeping faith; A Study of Grotius’ Doctrine of Natural Law (Florence: European University Institute (PhD thesis) 1988. doi: 10.2870/​93254), pp. 1–​2 under reference to H. Diels, Die Fragmente der Vorsokratiker, Berlin 1956; frgm. B 114; Arist. Nic. Eth. 5.7.3;1134b27ff.; id. Metaphys. 12; 1011a1–​2; 1012b31–​32; August., De Libero Arbitrio 1.6. In mediating the concept towards Modernity Cicero’s De Republica and De Legibus, and St. Paul’s Letter to the Romans 2.14–​15 played a prominent role; cf. J.B. Schneewind, The Invention of Autonomy; A History of Modern Moral Philosophy (Cambridge: Cambridge University Press, 1998), p. 18. 2 Summa Theologica, i.22; i. 82; i. 103. 3 Cf. Schneewind, Invention of Autonomy, pp. 21–​25.

174 Eyffinger debate into new channels. Precisely the answers he came up with have puzzled commentators to the present day.4 A second complicating element was of more recent date. It was the consequence of sixteenth-​century social crisis. With the Reformation the natural law tradition once more bifurcated, this time along religious demarcation lines, and more dramatically so as protagonists professed to mutually exclusive views. To add to the perplexity, this discourse did not overlap but squarely cut through the dichotomy that was the legacy of scholasticism. Its very abstruseness became its downfall. In the end, the emergence of the modern State became the Auslöser of the process. Spurred on by the compelling realities of inter-​state affairs, the speculative theological debate inevitably gave way to a more pragmatic, if no less principled and technical legal discourse. Grotius eminently personifies these historical crossroads. His unionism sought to take the caltrop of religion out of the equation. Still, this is as far as consensus will bring us. Analysis of Grotius’ outlook on the watershed –​whether he points forwards or rather backwards –​has prompted widely diverging interpretation. Some critics have earmarked Grotius’s proposition as marking the transition from scholasticism to modernity and the reorientation of debate from moral theology to secular legal thought and rationalism. To be sure, the secular political discourse as exemplified by Bodin5 had been literally brought to Grotius’s doorstep by Justus Lipsius, intimate of the family and standard-​bearer of neo-​Stoicism.6 But then, Grotius’s views can never be isolated from their troubled social context as exemplified by his politico-​theological treatises and his biblical and Hebrew studies we have addressed in chapter ii of this volume.7 Or, to turn ­tables –​and as Haggenmacher first pointed out in 1983 and Ertz has recently suggested –​precisely the politico-​theological discourse as exemplified by De imperio

4 Cf. M.B. Crowe, ‘The Impious Hypothesis; A Paradox in Hugo Grotius?’, in Grotius, Pufendorf and Modern Natural Law, ed. Knud Haakonssen (Farnham: Ashgate, 1999), p. 3 (Reprint from Tijdschrift voor Filosofie, 28 (1976), pp. 379–​410). 5 One should, otherwise, not lose sight of Bodin’s vivid interest in the Mosaic legislation. 6 On the issue, see Jan Papy’s essay in Grotius and the Stoa, ed. by Hans W. Blom and Laurens C. Winkel, Grotiana, 22/​23 (2001–​2002), pp. 47–​71. There is no coincidence in Grotius’s boast, in his letter to Lipsius from November 1, 1601 (bw, i, p. 20, No. 25) to accompany a copy of Adamus exul: ‘Toto Orbi Christiano haec vigilata sunt; nec haec tantum: sed quidquid a me unquam eiusmodi, et quantulumcunque proficiscetur prima erit cautio, ne quid sit non “katholikon kai oikoumenikon”, ut antiqui Patres loquebantur. Tu iudicabis quantum libet, et licet.’ 7 Stefanie Ertz, ‘Hugo Grotius’s Hermeneutics of Natural and Divine Law’, in Grotiana, 37 (2016), pp. 61–​94, at p. 63.

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(c. 1617) may well have been decisive in defining the semantics of what commentators have hailed as Grotius’s foremost contribution to the discourse, his concept of subjective natural rights.8 And then, what to think of Grotius’s ‘Impious Hypothesis’ (‘Etiamsi daremus’), notorious for the puzzles it has posed commentators. Did Grotius, in inserting this ‘absurdistic’ formula, seek to enhance the rational and legal elements of Natural Law, or even to take out the religious element entirely? Did he wilfully aim at secularizing natural law in an overly intellectualistic approach that did away with its theological and moralistic underpinnings? To leave God out of the equation would imply a fundamental overhaul of the concept of natural law. For one thing, there is general consensus as regards Grotius’s historic status with respect to the academic debate.9 Not, to be sure, in the sense that he solved the riddle, far from it; if anything, he added to the perplexity. Still, Grotius’s train of thought found ramifications in the very divergent views on political and legal theory subsequently advanced by such eminently influential authors as Pufendorf and Hobbes, Thomasius and Barbeyrac, Locke and Smith. For all their differences of orientation and substance, these authors agree on Grotius’s lasting impact.10 On the authority of history, therefore, Grotius poses as godfather at the cradle of modern (Protestant) natural law as we know it. 2

Problems of Interpretation

The above is not to ignore or disguise that Grotius’s propositions pose serious non liquets and paradoxes of varying nature and consequence. A first disconcerting element, as Barbeyrac was perhaps the first to observe, is the absence in Grotius’s works of a comprehensive, cohesive system of law.11 Grotius’s works are perhaps best read against the backdrop of the intellectual predicaments we sketched in chapter ii of this volume, meant to serve very pragmatic ends. By Grotius’s own saying, at the end of the day the application of philosophy to the domains of law, morals and politics counted more with him than speculative

8

Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Paris: Presses universitaires de France, 1983), pp. 510ff.; Ertz, ‘Grotius’s Hermeneutics’, p. 64. 9 Ertz, ‘Grotius’s Hermeneutics’, pp. 61–​62. 10 Schneewind, Invention of Autonomy, pp. 66–​67. 11 Ibid., p. 67.

176 Eyffinger contemplation per se.12 Grotius rarely probed theory for its own sake, but as subsidiary to his quest for answers to the dilemmas social reality posed. A second stumbling block to interpretation is the inconsistent terminology Grotius applies in successive treatises. While not untypical of the period, the phenomenon is suggestive of an ongoing process of thought. The successive stages of Grotius’s career will have added to the change of perspective. From a barrister with a specific brief (1605) he turned to legislator (1613–​1618), then assumed the role of a New Justinian and Judge of Mankind (1625). Symptomatic of the above ambiguity is Grotius’s method of reasoning, which has only diffused the discourse on his alleged ‘modernity’. To the champion of right reason, the a priori method of science would suggest itself. Grotius’s cursory references to mathematics, his claims of reasoning more geometrico, and his solemn pledge to argue in abstracto have been advanced as illustrative of this approach.13 But then, in Pufendorf’s wake critics have struggled to rhyme this claim with Grotius’s obvious reliance, throughout his treatise of 1625 and its many reprints, on the (forever growing) wealth of ‘evidence’ drawn from induction and the a posteriori argumentation of the humanities.14 From Grotius’s almost debonair linking of empirical and historical findings one would rather conclude upon his impotence to let go and mere lip-​service to modernity. But then, ambivalence of method does not necessarily impair ideological claims. Was Grotius among those who sought to reach Euclidean certainty on issues of morality? Or, to proffer a minimal bid, did he give Newton’s contemporaries the opening to be interpreted as such? The issue is not without interest, as Grotius’s claim to the empirical method facilitated his reception as secularizer of natural law.15 To exemplify the complexities and quicksand involved, two other fundamental issues have puzzled commentators. The first concerns Grotius’s seemingly shifting position on Aristotle’s concepts of virtue and justice.16 Aristotle distinguished two kinds of justice, of a universal and a particular 12 Letter to B. Aubéry du Maurier: Briefwisseling van Hugo Grotius 1597–​ 1645. 17 vols. Ed. by P.C. Molhuysen, B.L. Meulenbroek, Paula P. Witkam, Henk J.M. Nellen en Cornelia M. Ridderikhoff (The Hague: Assen, 1928–​2001) [hereafter: bw], i. No. 402, pp. 384–​387; cf. Hugonis Grotii Epistola de studio politico vel iuris publici recte instituendo (Uppsala: Mattsson, 1626). 13 ibp, Proleg. 58. 14 On Grotius’s intricate treatment of proof (demonstrationes) see Besselink, Keeping Faith, pp. 54ff.; Knud Haakonssen, ‘Hugo Grotius and the History of Political Thought’, in Political Theory, 13 (1985) pp. 239–​265, at pp. 250–​251. 15 Haakonssen, ‘Grotius’, p. 251. 16 Ibid., p. 254.

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nature respectively,17 the first posing as the epitome of virtue, the second as the correcting force in human relations.18 In exposing his theory of ‘perfect and less perfect’ rights Grotius, to the bewilderment of critics, only accepted the former category as legally relevant.19 The same holds good for Grotius’s position on Aristotle’s notion of the Golden Mean as catalyst in outweighing the active and passive elements.20 By 1600, in his State Parallels, Grotius demarcated the virtues issuing from the Will from those linked to the Intellect. In 1605 his claim read, in line with Aristotle, that to endure injury was as reprehensible as to inflict injury.21 But then, how does this tally with the eminently Christian virtues of patience and endurance? Grotius’s drama Christus Patiens (1608) is all about character, virtue and vice. Its perimeters are drawn in Peter’s impetuousness and cowardice, Judas’ hypocrisy and repent, Pilatus’s struggling with the dilemma of Justice and raison d’état, and the Christ’s predicament in reconciling his divine and human natures in his prayers at the Mount of Olives.22 The pièce de résistance of the play is the very intentional contrasting of two philosophies: the Stoic as presented in Seneca’s plays on antiquity’s Son of God, Hercules, who in Hercules Furens rebels against his fate, and the Christian concept of virtue that makes its Son of God endure injustice: active furor vs. passive patientia.23 By 1625 Grotius had, with all due respect to Aristotle, abandoned the position that the essence of virtue, whether with respect to feelings or acts, was to be found in the Golden Mean.24 As he argued, this applied notably to the virtue of justice, which found its sublimation in the suppressing of personal interests and proclivities that might impair human society and the commonwealth.25 17 Arist. Nic. Eth. 1130a8; 1130b18. 18 Ibid. 1130b31–​1131a1. 19 ibp, Prol. 8 and i.1.4–​8. The argument holds impeccably true for Grotius in 1625. However, in 1600, in Ch. 7 of his State Parallels (Parallelon rerumpublicarum, ed. Meerman, Vol. 1, Haarlem: Loosjes, 1801, p. 103) he implicitly assents to Aristotle’s concept: ‘… quod ego non inepte ad iustitiae considerationem trahi arbitror: non modo quod haec virtutum una sit, sed quod omnium virtutum quoddam sit veluti compendium, ut antiquus indicat Theognidis versus.’ 20 Cf. Schneewind, Invention of Autonomy, pp. 76–​77. 21 Hugo Grotius, De jure praedae commentarius, ed. by H.G. Hamaker (The Hague: Nijhoff, 1868) [hereafter: ipc], i. 22 The play has no continuity of personalities: each persona is drawn just once, in the dilemma that reveals his character. 23 The contrast is elaborated in a truly ingenious way; it likewise applies to the mother figures of Hecuba and Maria. 24 ibp, Prol. 43 with reference to Arist. Nic. Eth. 1106a ff., 1114b ff. 25 ibp, Prol. 44.

178 Eyffinger Right reason impelled man to identify virtue with obedience to the law.26 However, there was a mean in the Aristotelian sense to which Grotius adhered unconditionally. This concerned the discretion, indeed moral perplexity natural law left man with when he faced the infinite complexities the human contingency offered.27 We will return to this issue. A last ground for the diverging interpretation of Grotius’s position on the pivotal issues of his day and age is that his views on natural law hinge on two notions that, so to speak, invite conflict. He insists on the human urge for self-​ preservation, and therefore procreation; by the same token he emphasizes the quintessential sociability of man.28 From the first, commentators have found it hard to balance the two concepts. We will address this discourse and start with the pillar of οἰκείωσις and human fellowship. 3

The Sociability of Man

The genesis of early society and the concept of ownership are major themes in Grotius’s works. They are retractable in various disciplines and hark back to philosophical and literary tradition alike. As Grotius argues time and again, reliability and accountability are the bottom-​rock of social intercourse. Good Faith is the cornerstone of his philosophy, and of natural law as he read it. To that extent, one might say, Adam’s exchange of immortality for the awareness of good and evil had paid out. 3.1 Good Faith29 Good faith, in Grotius’s perception, is axiomatic to all human relations and, in Cicero’s famous dictum, the touchstone of one’s word and the consistency of agreements.30 It is the common ground of all rational nature, whether created (man) or not created (God).31 Whether defined as fides, as in the private sphere, pacta sunt servanda, as in the public domain, or religio, touching Man’s relation to God32 the overarching concept asserts itself throughout. It holds

26 Schneewind, Invention of Autonomy, p. 77. 27 ibp, ii.20.3.1. 28 ibp, Prol. 6–​10. 29 The literature is vast; references in Eyffinger, ‘On Good Faith and Bad Faith’, in Grotiana, 36 (2015), pp. 79–​171. 30 Cic. De off. 1.7.23: ‘dictorum conventorumque constantia et veritas’. 31 Under reference to Paul’s letter to the Hebrews 6:10; cf. ibp, ii.11.4.1. 32 Meletius par. 19.

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true indiscriminately vis-​à-​vis enemies, heretics or, as the case might be, non-​ Christians.33 In short, the concept is all-​encompassing and transcends all political and religious barriers, the ideological and the ecclesiastical divide.34 This perspective has inevitably raised questions regarding Grotius’s Protestant backdrop (Fikentscher 1979), his link to his scholastic sources (Vermeulen 1985) and his secularizing ambitions (Roelofsen 1990).35 Marking the basis of all voluntary obligation, fides as sketched by Grotius in his State Parallels (c. 1600) presents the paramount concept that commands the virtues he coins circa voluntatem (as against those circa intellectum), these being Fortitudo, Iustitia, Moderatio (strength of character, righteousness and self-​discipline).36 Fides notably asserts itself as the touchstone of justice and is addressed within this context.37 Its obvious moral implications lend it a rich political potential. Its inception is the promise, the sign of intent that expresses the manifest will to bind oneself. However, in its Roman perception fides entails an interaction, a sense of mutuality38 and the same holds good for the promise. The gesture is conditional, its implementation is only actuated by the concomitance of the other party.39 In other words, reciprocity is a keystone and the prerequisite for the promise to be effectuated into a formal obligation.40 This formula holds good at all levels: whether in private contracts, the Contrat Social, or the Covenant with God. Man relates to God as the cliens 33

Grotius bases good faith on the social bond of mankind, the ‘residuum communionis humanae’. Or, as he echoes Virgil in refuting the bad faith of Don Frederick, the son of the Count of Alva in the massacre at Naarden (1572): ‘At tu, Albane, dictis maneres!’ 34 On Grotius treatment of the issue in ibp, Books ii and iii and some relevant literature, see Eyffinger, ‘On Good Faith and Bad Faith’, pp. 80ff. 35 Besselink, Keeping Faith, pp. 6–​7 presents a review and dismisses the three propositions, with reference to Ambrosius De Officiis 2.15.10.2 (to counter Roelofsen), Grotius’s special remonstrant leanings (as against Fikentscher) and with appeal to Roman usage (pace Vermeulen). 36 In Parallela rerumpublicarum (1598–​1602) Grotius addresses the virtues concerning Man (Bk. iii, Ch. 4–​25) and God (Bk. iii, Ch. 26) and within the former category distinguishes the virtues ‘circa voluntatem’ (Ch. 4–​17: Fortitudo, Iustitia, Moderatio) and ‘circa intellectum’ (Ch. 18–​25: circa agendum; circa faciendum; circa sciendum). Fides is advanced as the basis for all justice and discussed in that context (Ch. 6: De fide et perfidia). Grotius compares the implications of the good faith of Athenians, Romans and Dutch with respect to their sovereign and foreign agents, be they allies, neutrals or enemies. 37 Cic. De off. 1.7.23 and cf. ibp, ii.11.1.4–​5. 38 Besselink, Keeping Faith, pp. 8–​10; Eyffinger, ‘On Good Faith and Bad Faith’, p. 89. 39 Besselink, Keeping Faith, pp. 15–​16 calls the promise ‘a modality, a further articulation of fides’ … ‘Fides is the natural foundation of a promise’s binding power.’ 40 ibp, ii.11.1.6. In ibp, iii.19–​25 Grotius discusses fides in its relation to a preceding promise (cf. ibp, iii.1.1.).

180 Eyffinger to the patronus, or the civis to the respublica. With Grotius fides is no mean concept: it is Man’s haven of last resort when all the chips are down (residuum communionis humanae). Grotius had drawn the above conclusions from the rule of nature to which both God and man obliged in sharing the indelible law of immutable justice. In other words, to reach this verdict he never needed the backing of either scholasticism or Protestantism. But then, this works both ways: in other words, on this basis we cannot conclude upon Grotius’s intentional aiming at secularisation. By the same token, the concept was of great pertinence to Grotius in dealing with the Remonstrant Troubles. Another way to prove this is by reference to the direct link Grotius draws between good faith and the free will. 3.2 Free Will Being a voluntary act, the promise and good faith epitomised man’s free will, his creation as homo pro se and sui iuris. It underpinned and facilitated the articulation of what, in the last resort, the natural bond was meant for –​communication, exchange and protection –​in implementing treaties, forms of governments, and the civil laws by which citizens of their own accord and by pactum commune curtailed their plenary liberty; Grotius articulates these aspects in ipc.41 However, in addressing the free will we also touch upon man’s Achilles heel. With God, will and intellect are identical: being the fons boni God aims at the good exclusively. But as we saw in Adamus exul, to agents other than God liberum arbitrium invited an acute moral dilemma, as e.g. Satan’s abuse of the faculty in pretending good faith illustrated.42 The same held good for man: he was positioned at the crossroads. Whenever he posed his will against his intellect, liberum arbitrium could well become the source of evil, as Eve’s dilemma articulated.43 From the first Grotius’s stand is unequivocal. Free will might be the source of all obligation (obligandi radix),44 its binding force was only activated by the concomitant fides; it could never be applied in fraudem alterius –​and this implied reciprocity. In Adamus exul the free will was presented in the ethical context of the choice between good and evil.45 Grotius is equally

41 42 43 44 45

On Grotius’s treatment of bona fides and free will in ipc Eyffinger, ‘On Good Faith and Bad Faith’, pp. 87ff.; Besselink, Keeping Faith, pp. 18ff. See above, fn 76. See above, fn. 88. Besselink refers to bw, i, pp. 499–​503, No. 450, Grotius’s letter to his brother Willem d.d. 28.02.1616. The reference is to Ad. ex., 173–​181.

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emphatic in ipc, in Regula iii, and in his argumentation of stare pactis in the Prolegomena of ibp.46 The demand holds notably true with respect to the political sphere,47 as Grotius argues in Christus Patiens (1608) with respect to the Christ and in Sophompanes (1635) with respect to Joseph the viceroy. More than their words, their actual life and works reveal their doctrine. The same applies to the bond between man and God: whether called lex, foedus, testamentum, diatheke or sponsio48 the bond is based on fides.49 Being eternal and fons boni, and having created man in his own image, God stands to warrant that free will equates good will.50 However, as with any other promise in Grotius’s perception, God’s promise of forgiveness, dispensation and grace is conditioned, to wit, by the performance of Good Works. The tenet typifies Grotius’s Remonstrant outlook on predestination.51 Forty years from Adamus exul he emphatically confirms this thesis in De Fide et Operibus (1640). Just as in contracts sales were conditioned by the delivery of goods, in man’s Covenant with God the combination of good faith and pious works was the prerequisite to the fulfilment of the promise of dispensation.52 Piety did not stop at prayers, but included the intent to act, as epitomised in political life. In 1635, to underpin his outlook on politics (τὰ ἔργα πολιτείαν) Grotius portrays Joseph as the perfect regent, the epitome of the βίος πολιτικός. We must conclude that, regardless of scholastic thought or Protestant doctrine, and well before the Remonstrant Troubles surfaced, Grotius had long made up his mind on these issues. Indeed, as a consequence he landed in the Remonstrant camp, and inevitably so.53 Never in his life did he change his views on these crucial issues. 46

As Besselink( , Keeping Faith, p. 21) puts it: ‘The free act of volition acquires its binding power from the utterly natural rule of fides.’. This is the so-​called Regula fidei in ipc (Regula iii); Cf. ibp, Prol. 14–​16 and 2.11.4.1. 47 Hebr. 9:17. 48 The Christian ‘Testamentum’ to denote ‘foedus’ harks back to Epist. Hebr. 9:17. 49 One recalls the contrasting of Satan’s simuletur fides and stretching of the right hand as a feigned symbol of faith in Ad. ex., 875–​878 with Adam’s reliance on the gift of God, the mutua fides, in Ad. ex., 929–​932. In ibp, ii.11.4.1 Grotius adduces eight references from Scripture to attest to the binding force promises have to God. 50 Cf. Ad. ex., 366–​369; 405–​407. 51 Besselink, Keeping Faith, pp. 27–​28 with reference to John 2:14 and 2:21 and De Fide et Operibus (1640). 52 Besselink (Keeping Faith, p. 29) brings it to the point: it was not a matter of faith or works, but between works with faith or without. 53 Cf. Grotius’s letter to Walaeus: ‘By Faith Reason is perfected, not destroyed, surpassed or undermined. In our belief nothing disagrees with Reason.’ (bw, i No. 412, pp. 399ff, letter dated 29.06.1615). No act of God could militate against natural justice, God could never be the source of evil. Man was created in God’s image –​meaning ‘mente liberoque arbitrio praedita’. A free will could never be predetermined. Cf. Grotius’s illuminating letter to

182 Eyffinger 4

The Mirror-​Side: Man’s Self-​Seeking

Grotius’s insistence on man’s sociability and therefore his identification of personal interest with social rest and order can never be questioned. But his emphasis on this part of human nature will also have been suggested by circumstance. Harsh reality showed that the other side of man, his self-​seeking, should never be doubted. Grotius had lived and learned; he never denied Hobbes’s proposition (homo homini lupus), the ambiguity of man’s nature or the huge potential for conflict this entailed.54 Still, as he insisted, strife, envy and competition made up for just half the story. What he juxtaposed –​and what caused the tension man’s assignment in life it was to neutralize, and the task Grotius had set himself to probe –​was the equally inherent sociability of man as prerequisite to self-​fulfilment. Grotius considered man’s intelligence and speech the paramount faculties to harmonize self-​interest with the needs of the commonwealth and to uphold social order. At that juncture he rested his case, respecting the variegated ways of life without passing verdict. Thus, he left a people full latitude to choose itself the type of government it loved best.55 We may perhaps even carry the argument one step further in suggesting that Grotius may well have identified this ambiguity as precisely the contingency of the human condition. It would explain his striking insistence on the legitimacy of personal claims as the building-​blocks of society. So much so, indeed, that modern researchers have come to base the originality and modernity of Grotius’s thought precisely on his theory of individual rights.56 Grotius laid the basis for this theory by introducing a new approach to the concepts of ius (and lex), and we must, therefore, spend a few lines on these issues. 4.1 Ius and Lex: Grotius’s Theory of Individual Rights and Sovereignty Distancing himself from tradition Grotius defined ius in three different senses. In its broadest sense, and in a negative definition so to speak, it denoted whatever was not unjust, in the sense of not conflicting with the nature of human

Van den Boetzelaer from December 1615; bw, i No. 438, p. 433; Besselink, Keeping Faith, pp. 129–​132. 54 Schneewind, Invention of Autonomy, p. 72 insists on Grotius’s keen awareness of this propensity of man (which tellingly, he does not discuss in terms of sin, retrace to the Fall –​or even reprobes). Cf. Besselink, Keeping Faith, pp. 77–​78 with reference to ibp, Prol. 16 (‘Sed naturali iuri utilitas accedit.’) and 18. 55 ibp, i.3.8.2. A clear exposition in Schneewind, Invention of Autonomy, pp. 72–​73. 56 For the discourse cf. Ertz, ‘Grotius’s Hermeneutics’, p. 76.

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society.57 This covered whatever was permissible by the norms of natural law and human volitional law on all social levels.58 The second sense of ius was the one that must interest us most: it touches Grotius’s celebrated ‘subjectivising’ of the concept as a moral quality attached to a person that legitimated an action or possession.59 The truly innovative idea has been hailed as the upbeat to modern individualism in its first bid to identify man’s goal with the fulfilment of his personal rights. But then, as Hobbes observed, this would imply the end of all morality and was tantamount to taking anarchy for granted. Grotius ventured to disagree: ius concerned man’s innate power to protect his life and liberty (suum),60 a potestas that, in conventional society, was extended to property (dominium) and contractual agreements.61 In voicing this proposition Grotius effectively harked back to Aristotle’s duality of ‘universal’ and ‘particular’ justice, rendering the Stagyrite’s particular justice (that governed human relations) into a faculty that entitled him to potestas and dominium (and made the object of expletive justice) and defining Aristotle’s universal justice as a mere aptitude that became a person and made the object of attributive justice.62 Only the first category, qualified as ‘perfect’ rights, gave rise to legal titles and obligations that were enforceable. However, this was not to say that the less perfect rights were of a more gratuitous nature: they complied with the moral standards epitomised in the law of Christ.63 Love from sociability balanced self-​seeking from reason and curtailed the latter by the imperative of respect for the rights one’s fellow man could claim. Grotius thus defused the explosive element of ‘natural’ competition with an appeal to man’s sociability as the warrant of a minimal social order. In this balancing act the role of the law was that of guardian, to monitor trespassing at the crossings of justice and injustice. The massive implications of this somewhat open-​ended proposition and including its rather minimalistic presentation of justice have much troubled commentators. The issue, which already divided Pufendorf and Thomasius,64

57 58 59 60 61 62 63 64

ipc, Ch. 2, edn Hamaker, p. 30; ibp, i.1.3.1. ibp, i.3.2. ibp, ii.1.1.4. ibp, i.1.5. ibp, ii.2.2. Cf. Ertz, ‘Grotius’s Hermeneutics’, pp. 69ff. ibp, i.1; i.2; ii.12.9; Schneewind, Invention of Autonomy, pp. 78–​81. ibp, Prol. 8 and cf. Knud Haakonssen, ‘Hugo Grotius and the History of Political Thought’, Political Theory, 13/​2 (1985), pp. 239–​265, at pp. 254ff.

184 Eyffinger has invited Richard Tuck’s in depth research over recent decades.65 Its ramifications are legion. For one thing, Grotius allows for a disconcerting latitude with respect to the development of private property from the original right of common use. In his proposition this transfer took place either by tacit recognition or by explicit contract. The first, implying self-​restraint from sociability, points to Locke’s liberal views on private property; the second proposition inspired Pufendorf’s absolutist views in the matter.66 The implicit duality entailed similar consequences with respect to the theory of state: man’s self-​seeking in subversion of the ideal οἰκείωσις created the individual’s need for protection and his consent to delegate sovereignty to civil authorities.67 Grotius’s insistence, in Bodin’s footsteps,68 on the absolute and indivisible nature of sovereignty has wrongfooted commentators to make him incur the label of champion of absolutism.69 Intriguingly, however, Grotius deems the concept applicable to any given type of government.70 The dilemma invited Haakonssen’s ingenuous reading to look upon the state as an independent legal structure, uncouple the notion of sovereignty and take Grotius’s perception of the concept, in a strictly legalistic interpretation, not as a power over, but exercised on behalf of the body corporate.71 This is certain, in this domain of thought, too, and to typify the variety of interpretations his works have prompted, Grotius’s views had a massive impact on legal and political theory. This, in turn, touches upon the relation between individual and civil liberty. Thus, what the individual had given up in surrendering the right of punishment or –​more to the point in the context of the Dutch nation –​the right to resistance was not that right as such, but merely its execution (as through sanctions). Whenever sovereign power was inapplicable or an appeal to civil authority failed, the potestas returned to its original source in the pre-​or extra-​political stage, viz., the individual.72 Also, necessity imposed a law of 65

ibp, i.1.4. Cf. R. Tuck, Natural Rights Theories (Cambridge: Cambridge University Press, 1979), pp. 58–​81. 66 Haakonssen, ‘Grotius’, pp. 242ff.; 252ff. 67 ibp, i.3.6.1. 68 Ertz, ‘Grotius’s Hermeneutics’, pp. 72–​75, reference to Bodin, Six Livres, Bk. i, Ch. 9. 69 Schneewind, Invention of Autonomy, p. 81. The same holds good with regard to Grotius’s tenets on property. In 1595 he produced his poetical paraphrase of Ch. 2 of Justinian’s Institutes, ‘De Rerum Divisione at acquirendo earum dominio’ (Inst. 2.1.1–​10; 113 ll.; Dichtwerken. 1.2.2, ed. Meulenbroek, Assen 1977, p. 16ff.). 70 ibp, i.3.7–​29. 71 Haakonssen, ‘Grotius’, pp. 244ff. With reference to ibp, i.3.7.1. 72 Cf. Ertz, ‘Grotius’s Hermeneutics’, pp, 71, 76.

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its own: in dire straits man might infringe upon his fellow man’s right of property. Just like in civil society people might in the last resort invoke their moral power to resist –​and the Dutch Revolt was a case in point. To conclude this survey, Grotius’s third definition of ius is that in the sense of lex: an imperative rule of moral action.73 Grotius’s tripartition of meanings was very intentional: it reflected a hierarchy of rights and the order, therefore, was inconvertible. As Besselink intriguingly observed, in the opposite direction the convertibility is substantial.74 5

Voluntarism and Intellectualism

We will now briefly return to the problematic intellectual legacy Grotius inherited from his scholastic predecessors, viz., the discourse on voluntarism and intellectualism, and probe to what extent this dichotomy affected his thought. The issue was far from moot in the days Grotius entered the stage. Within the Una Sancta discourse raged on in acrimonious polemics. Jesuits like Molina, Bellarmine and Suarez openly accused Dominicans of Calvinist leanings and in return were blasphemed by the latter for being Pelagianists. In 1607 Pope Clemens viii with the help of a Congregatio de Auxiliis settled the issue for the time being by provisionally accepting both propositions.75 The Reformation deepened the divide. Bias of catholic scholars towards objective intellectualism and natural law clashed with the reformers’ reliance on scripture as God’s legislative ordering. In the last resort, the polemic reflected conflicting views on human nature and man’s moral autonomy. Luther and Calvin both emphatically adhered to voluntarism, if on different grounds.76 Again, the great protagonists of the Grotian legacy in the protestant natural law discourse, from Pufendorf to Thomasius, were full-​fledged voluntarists.77 Intriguingly, with Grotius himself commentators have felt less sure. 73 ibp, i.1.9.1: ‘quae idem valet quod lex’. 74 Besselink, Keeping Faith p. 65: ‘because what a norm of natural (or volitional) law commands, can be done rightfully by somebody, while the thing done will also be right.’ 75 Much discourse in Rome was raised by Molina’s proposition in his Concordia to reconcile divine grace and human liberty. In 1597–​1601 Pope Clemens viii, with the help of a Research Commission, the Congregatio de Auxiliis, resolved polemics between Dominicans and Jesuits on the nature of God’s grace (auxilium) that had opened in Salamanca in 1582. Was the infallible efficacy of God’s grace inherent or dependent on God’s prescience of man’s use of the instrument? 76 Schneewind, Invention of Autonomy, pp. 26–​36. 77 Besselink, Keeping Faith, p. 97; Crowe, ‘Impious Hypothesis’, pp. 379–​410.

186 Eyffinger One ground for this are the diverging tenets Grotius appears to have defended in 1605 and 1625. Another ground is the formula which has puzzled scholars for centuries, Grotius’s so-​called ‘Impious Hypothesis’, which we will discuss in the next paragraph. The overall tendency of modern scholarship has been to conclude upon Grotius’s gradual move from voluntarism to intellectualism. In his early years Grotius’s position seems crystal-​clear. In Adamus exul he unequivocally avows to the creative role and sustainable commitment of the Lord. God was the creator of nature78 and the law of nature expressed His will. Man’s reason was directly attributable to the Will of God. The same arguably holds for Grotius’s position in ipc: in his ix Regulae the will features prominently.79 All law is based on an ‘act of will’ and only varies as regards authorship, in being the product of the will of God (natural law and divine volitional law), the will of mankind (the law of nations), the collective will of citizens (civil law) or the will of the individual (private law). In the last resort, all rules issue from the will of God. However, De Michelis has raised a caveat. As she argues, with Grotius God’s will is eminently manifested in nature, in a way that is tantamount to absorbing divine law into natural law.80 Upon creation all nature was endowed with natural principles for guidance that were hence no longer affected by the will of God. Clearly, these tenets do not tally with voluntarism pure and simple. Besselink adduces other arguments, pointing to the interaction of Grotius’s ix Regulae that address the hierarchy of formal sources of law (Grotius’s legislative theory so to speak) with the substance and basic principles of the various domains of law as outlined in the xiii Leges. Also, Grotius’s rather inarticulate phraseology and the absence of the voluntarist vocabulary suggest qualification of his position as full-​fledged voluntarist in 1605.81 Finally, Ertz has drawn attention to Grotius’s claim to define the notiones communes with

78 79 80 81

In this respect Grotius’s tenets in all disciplines are in perfect harmony. One may compare Adamus exul (1601) 312–​335 and Sophompaneas (1635) 1–​7 with ibp (1625) Proleg. 12 and De imperio, Ch. 3. ipc, Ch. ii: ‘Quod se velle … ius est’ is the consistent formula of Regulae i-​v iii. Cf. Ertz, ‘Grotius’s Hermeneutics’, pp. 65–​77. Fiorella de Michelis, Le origini storiche e culturali del pensiero di Ugo Grozio, Florence 1967, pp. 96–​97. See also Ertz, ‘Grotius’s Hermeneutics’, p. 65: under reference to ipc, Ch. 1, edn-​ Hamaker, p. 6; Ch. 2, edn-​Hamaker, p. 8; Ch. 3, edn-​Hamaker, p. 35. Besselink (Keeping Faith, pp. 138–​143) discusses Grotius’s reference to classical sources on Jove in his discussion of Regula i (ipc, p. 9) and his criterion for distinguishing natural law and civil law (ipc, p. 23).

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virtually mathematical exactitude and insists on God’s objective with creation as the critical element for settling the vexed issue.82 Many commentators have felt that by 1625 Grotius’s position had shifted considerably. In the opening chapter of ibp,83 when defining primacies, Grotius plainly states that the criterion by which to judge the moral quality of an act is its compliance with right reason and Man’s social nature, and that God’s verdict reads accordingly.84 As the manifestation of the will of its legislator the law of nature held an imperative, prescriptive status.85 No act of God could any longer challenge natural justice. Calvin’s concept of predestination effectively turned God into the author of sin, a proposition Grotius, in line with remonstrant thought, deemed inconceivable. In the interpretation of Grotius’s thought on the issue in ibp a pivotal place is reserved for the so-​called ‘Impious Hypothesis’. Pufendorf, for one, took the formula as proof that Grotius had by then reached a fairly intellectualist position. We will now address this debate. 6

The ‘Impious Hypothesis’86

In the argument of his Prolegomena Grotius inserts a hypothesis stipulating that the law of nature would remain intact even if one denied the existence of God and his providential care for mankind.87 It is probably the most debatable of propositions Grotius ever made and commentators have made much of the thesis. It has been called elementary to Grotius’s views on natural law and been advanced as convincing proof of Grotius’s paramount intent at secularisation and therefore of his pivotal role as innovator of the discipline. It has also been invoked as concluding evidence of his intellectualist approach in Aquinas’ tradition as against the voluntarist thesis he championed in ipc 20 years earlier. 82

Ertz, ‘Grotius’s Hermeneutics’, pp. 67–​68 with reference to ipc, Ch. 1, edn. Hamaker, p. 7 and Ch. 2, edn. Hamaker, p. 9. 83 ibp, i.1.10.1–​2. 84 Schneewind, Invention of Autonomy, pp. 74–​75. As Schneewind has suggested, the apparent transparency is deceptive –​for, wouldn’t this leave God out of the equation after all? Barbeyrac, and many in his trail, have wondered whether or not Grotius’s non liquet was intentional. Schneewind also raises another issue, on which Grotius does not speak up, the identification of the obligatory with the intrinsically good and how the two tally. 85 As Grotius puts it in De imperio, it was a iudicium imperativum or directivum. 86 On the reception of the hypothesis Besselink, Keeping Faith, pp. 94–​151; Crowe, ‘Impious Hypothesis’, p. 4ff; Ertz, ‘Grotius’s Hermeneutics’, pp. 87–​94. 87 ibp, Prol. 11.

188 Eyffinger To start with, we should point out that the type of formula as such –​a reductio ad absurdum or per impossibile –​had a long pedigree in philosophy that in the last resort can be traced back to Plato.88 It is met indiscriminately, and to serve various ends, throughout antiquity, as with Cicero or in the Meditationes of Marcus Aurelius,89 and occurs with St. John Chrysostomos and Abélard; Anselmus and Duns Scotus;90 Vazquez and Suarez; Melanchthon and Protestant authors in his wake. Grotius’s appliance of the hypothesis fits into a very specific context. It serves his refutation of Scpticism from Carneades to Montaigne to Hobbes. It challenges their virtual denial of the very concept of natural law and insistence on expediency rather than justice as the proper criterion of law. Grotius, in other words, is not at all concerned with the voluntarist versus intellectualist position on natural law, but rather on the concepts of natural law and of justice as such.91 Against this backcloth he insists on man’s social appetite for οἰκείωσις, which imposes self-​restraint; on man’s perception of law; and on his power of judgement. As he puts it, both reason and human experience argue in favour of God’s existence and providence.92 We must conclude that neither the argument nor the purport of the hypothesis (a flat denial of the absurd proposition) can bear the burden of proof heaped on it by commentators to underpin either Grotius’s secularisation or his intellectualism. Grotius’s phraseology left the issue whether natural law originated in God’s will or intellect in suspense. In proclaiming natural law normative and prescriptive Grotius, by his own standards, presupposed a legislator. The author of Adamus exul never considered leaving the creator out of the equation –​nor would he have got away with it unscathed.93 However, we must consider yet another moment in Grotius’s career. This concerns his first full-​fledged appeal to both natural law and revealed divine law in De imperio (first draft c. 1614). It is Grotius’s foremost bid to appease the

88 Plat. Eutyphro 10a-​e. 89 Marcus Aurelius, Meditations 2.11; 6.44; 9.40; 12.28. The reference was already noticed by Pufendorf. 90 Crowe, ‘Impious Hypothesis’, p. 11, under reference to Anselmus, Proslogion 9–​11, Gregory of Rimini and Roberto Bellarmino De Membris 3.11. 91 ibp, Prol. 5–​20; Besselink, Keeping Faith, pp. 109ff.; Schneewind, Invention of Autonomy, pp. 37–​57, 59, 70. 92 In ibp, ii.20.46.2 Grotius adduces testimonies, e.g. Cicero Nat. Deor. i.2 and Epictetus Encheir. 31. 93 Schneewind, ‘Invention of Autonomy’, p. 68.

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debate circa sacra, his paramount concern throughout the years 1613 to 1618. In line, one might say, with the method he applied in ipc with regard to the Catarina, Grotius formulates a proposition on principle regarding the legitimacy of (intervention by) State authority. He presents his findings from both sources of law as coinciding in their blatant rebuttal of the theocratic claims of contra-​Remonstrants. He summarily dismisses church authority in issues circa sacra and establishes the exclusive realm of civil authorities.94 As regards the pole of Revelation, Grotius in De imperio identifies not two types of lawgiving as Junius or Cunaeus had done, but actually three. Very intentionally he construes –​on top of the Mosaic legislation for the benefit of the Jewish Nation and the successive stages of legislation that served mankind as a whole –​the preliminary stage of legislation to individuals, these being the early patriarchs.95 Interestingly, in ibp Grotius also argues along these lines of a ‘tripartite’ Revelation, if from a different perspective. He ramifies divine positive law according to addressee, viz., either the Jewish people (in Moses’ legislation) or mankind as such. The ‘universal’ address is documented for three successive stages (upon creation, with Noah after the Flood, finally with the Christ).96 He takes the legislation offered to Adam and Noah as representing the ‘universal’ tradition –​after all, both in a sense were the ‘first man’ and as such represented mankind –​, and the Mosaic legislation as the more specific exception. As Ertz has argued, Grotius’s objective here was precisely to exclude all political instance from the biblical genealogy and to identify the individual as the original bearer of property rights, first bestowed in Eden, then renewed after the flood.97 7

Grotius’s System of Law

The Domains of Law 7.1 We will now venture to pinpoint Grotius’s views on the role and record of natural law within the comprehensive system of law he developed in ipc (1605), ibp

94 95 96 97

Cf. Ertz, ‘Grotius’s Hermeneutics’, pp. 76ff. With Joseph Jahweh’s direct intervention came to an end. On Joseph’s dreams and prophecies Grotius elaborated in Sophompaneas (1635). ibp, i.1.15–​16. Ertz, ‘Grotius’s Hermeneutics’, pp. 92–​94 with reference to ibp, i.1.15.1–​2. As Ertz posits, the above puts human society under the rule of two legal paradigms, property and rule, the one reflecting the state of innocence, the other the consequence of sin.

190 Eyffinger (1625) and Inleidinghe (1627).98 The interpretation of this system is not unproblematic. A first query presents itself with respect to (the apparent inconsistency in) the division of domains. In 1625 and 1627 Grotius all but seems to have distanced himself from the scholastic tripartition in eternal, natural and human law and endorsed Aristotle’s bipartition of natural law and volitional law as ‘optima partitio’.99 Puzzled commentators have interpreted this as a farewell salute to theology, to corroborate Grotius’s clean separation of natural law and divine law, his secularization and his quintessential modernity.100 The claim lacks plausibility. Besselink has submitted references to eternal law from Grotius’s legal tracts and correspondence. One may add that references to the lex aeterna are commonplace in Grotian drama from Adamus exul (1601) to Christus Patiens (1608) to Sophompaneas (1635).101 Neither is Grotius’s distribution of spheres in ipc beyond controversy. A first issue that has puzzled critics is the position Grotius defends in 1605 on the correlation of natural law and divine volitional law. Some deem the distinction entirely absent, not yet crystallized or merely implicit. Others point to Grotius’s identification of the source of natural law with the intention of the creator.102 Grotius’s presentation of affairs in the Inleidinghe is summary. He merely addresses divine positive law in its perfect form: the law of the Christ.103 Above we have addressed Grotius’s position in De imperio and in ibp 98 99 100

101

102

103

Major sources are ipc, ii and viii; ibp, Prol. and i.1; Inleidinghe, i.1–​2. Scattered references are found in Defensio fidei (1618), Annotat. in Matt. 5:17, and bw. ibp, i.1.9.2: ‘aliud ius naturale, aliud voluntarium; Inleidinghe, i.2.4: ‘aengeboren wet en gegeven wet’. Dufour in The World of Hugo Grotius (1583–​1645) (Amsterdam: apa-​Holland University Press, 1983), pp. 15–​42 at p. 36; Todescan (Le radici teologiche del giusnaturalismo laico. 3 vols. (Milan: Giuffrè, 1971–​2014) i, pp. 23–​24) concludes upon Grotius’s dropping of the concept of eternal law. Tuckin ‘Grotius, Carneades and Hobbes’, Grotiana, 4 (1983), pp. 43–​ 62 interprets Grotius’s position as the definitive disengagement of natural law (as a minimalist moral theory) from the Decalogue and the Jewish-​Christian perception of God, if not of a deity and providence as such. Ad. ex., 312: ‘Dies tenebras legis aternae vice /​fugans resurgit.’, and cf. ibid. 317–​331; Chr. Pat. 99–​100: ‘Fas sed aeternum Dei /​et praestitutus ordo venturi vetat’; Soph. 4–​5: ‘Dies recurrens lege praescriptae vicis /​Dominum fatetur.’ Besselink (Keeping Faith, pp. 87–​88) refers to ipc, Ch. 2, edn Hamaker, p. 8 and to ibp, Prol. 12, along with Grotius’s letter to his brother Willem dd. 28.02.1616 in bw, i No. 450, pp. 499–​502, at p. 500: ‘ex aeterna lege, hoc est ipsius Dei natura, proficisci …’. ipc, Ch. 2, edn Hamaker, p. 8: ‘Dei voluntas … vel maxime ex creantis intentione apparet. Inde enim jus natura est.’ Cf. Berljak, o.c., p. 119; Dufour, o.c., p. 34; Besselink, Keeping Faith, p. 45: next to demonstrationes in the true sense Grotius adds probationes from volitional law and demarcates divine from human authority. Inleidinghe, i.2.9 and specifications regarding marriage in 1.5.2 and 1.5.18.

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respectively. In 1625 Grotius insists that the Decalogue was not identical to natural law. The tables were bound up with a legislator and therefore only binding on the Hebrew people. Still, its moral precepts were instructive to the extent that they presented God’s word and were therefore by definition in harmony with natural law. They should however (as Junius had argued before him) be verified with the higher moral norms the superior law of the Christ imposed onto Christians.104 Grotius, clearly, felt compelled to emphasize the latter point in view of the Calvinists’ doctrinal reliance on scripture. Grotius’s distribution of law in ipc has raised more queries. The treatise is beset with problems of terminology and demarcation of spheres.105 As regards the definition of the ‘law of nations’ Grotius may be excused. He must have struggled with the ambiguous legacy of Roman law and laboured to reconcile its two divergent concepts. One tradition of Roman law identified ius gentium with ius civile proper, the law that was the expression of the will of each particular state. The second proposition presented ius gentium as a type of natural law. In reflecting the consensus of mankind, it was qualifiable either as ius naturae secundarium or ius gentium primarium; in 1605 Grotius, somewhat confusingly, applies both terms indiscriminately. Meanwhile, his dissatisfaction with the ambiguity of the Roman legacy can be read in an afterthought, known as the Nova Declaratio, meant to clear up affairs and differentiate between civil law as the reflection of unilaterally revocable consuetudo and the law of nations that was based on and monitored by international agreement.106 By 1627, in the Inleidinghe, his epochal handbook on Roman-​Dutch Law, Grotius presents a clear-​cut distribution of spheres, neatly demarcating natural law from positive law, divine from human positive law, and ius gentium from ius civile.107 However, here a new ambiguity surfaces that must keenly interest us. Grotius insists on the substantial link of ius gentium with on the one hand civil law, on the other natural law. What the law of nations shared with civil law was its joint origin. More restrained in scope, the latter domain of law reflected 1 04 ibp, i.1.17.1–​4. 105 A complicating element in ipc is Grotius’s wavering terminology; The term ius civile (or, as Grotius argues, ‘θετiκóv ν, νομικóv ν’ with reference to Arist. Nic. Eth. 1134b18) is used both in the sense of ius positivum in general, viz., all positive law that is not per se, and as ius civile in the modern, stricter sense caught in his Regula iv. The law of nations (caught in Regula viii) is defined as ius gentium primarium, civil law stricto sensu as ius gentium secundarium. 106 ipc, Ch. ii, edn Hamaker, p. 27. See on these issues Haggenmacher in Grotiana, 2 (1981), pp. 51–​89. 107 Inleidinghe, i.2.3–​13. The categories are defined respectively as ‘Aengeboren ofte Gegeven Wet’; Goddelick ofte Menschelick; Volcker-​wet ofte Burger-​Wet’.

192 Eyffinger a later stage of the historical process, when diversifying social needs imposed further ramification of the law. In 1625 Grotius elaborates the same formula from a different perspective. In ibp he takes the perfectissima societas of the state for criterion and reserves a domain of law of wider scope than civil law (the law of nations) and one of narrower scope (private law).108 All this is fair enough. Intriguingly, though, in his Inleidinghe Grotius also stipulates that the law of nations, while nowhere near to the status of natural law, in view of its long standing and in being the product of consensus, was hard to change. In practice it virtually shared the immutability of natural law.109 It sounds eerily akin to the second interpretation of ius gentium in Roman law, to suggest that Grotius’s indiscriminate qualification of ius gentium in ipc was perhaps more than just incidental. Notwithstanding their ‘volitional’ status, both divine and human law also participated in natural law.110 Both in ibp and in the Inleidinghe Grotius identifies this link with the lasting imprint of God’s mind on man, that sparkle of the divine light of reason from before the Fall (the lucis antiquae favilla in Adamus exul) that lingers on in man, overcast with sin though he may be.111 This perception reveals itself in the law of nations as the consensus of mankind, which in ipc gave rise to Regula ii112 and –​to reflect its ambiguous status and participation in both spheres –​was identifiable, at will, as ius naturae secundarium or ius gentium primarium.113 In this sense, the law of nations itself came as an additional (a posteriori) proof of the law of nature. The consensus of mankind, or by all means its gentes moratoriores, suggested a single cause as common source, viz., ‘common sense’.114

1 08 ibp, i.1.14.1: ‘vel latius patens, vel arctius’. 109 Inleidinghe, 12.2.12: ‘… werd zeer zwaerlick verandert’. 110 ibp, i.2.1.3: ‘leges tum divinae tum humanae’. Volitional law, in short, operates within the parameters set by natural law in its strict sense, but likewise takes heed of natural law when addressing the domain of the permissible; this holds good indiscriminately for divine volitional law and all levels of human volitional law. 111 One recalls Ad. ex., 1903–​1904: ‘Lucis antiquae favilla’. The image is also found in Lipsius’s Politica 1589 and Junius’s Protoktisia 1603. In 1605 (ipc, Ch. 2, edn Hamaker, p. 9) Grotius argued that God had endowed all of creation with certain proprietates naturales. As Besselink observes (Keeping Faith, p. 52), any reference to the rational nature of man is conspicuously absent here. 112 ipc, Ch. 2, ednHamaker, p. 12, Regula ii: ‘Quod consensus hominum velle cunctos significaverit, id ius est.’ 113 ibp, i.1.10.1; Inleidinghe, i.2.5. Unlike Roman law tradition Grotius, under reference to ‘intuition’, excludes the animal world from this reason and the awareness of good and evil. 114 This perception, Grotius argues, also permeated civil law, which emanates from the same source and is like the mirror site of the law of nations: it was the product of custom and emulation on behalf of a single commonwealth of the latter domain’s aspirations for

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The domain could be called natural law by reduction, or ‘improper’.115 And this leaves us with a tantalising dichotomy: a natural law stricto sensu next to a second version of a broader, and less than clear-​cut nature. How to define this type of law –​and what was its role? 8

Ius Naturale Secundarium

One wonders, did this natural law ‘by extension’ constitute a ius per se, as natural law strictly speaking, or rather ex alio, as volitional law? Throughout his works Grotius is very explicit regarding the special character of natural law. All law might be the product of an act of will, the law of nature had a status very much of its own. It had taken its origin from the will of God, but was no longer affected by an external agent, man or God.116 It was absolute and a necessity; eternal, autonomous, and unchangeable; and it was the perfect expression of right reason. As we have seen, in ibp it is presented as commanding the moral status of an act with an appeal to its concordance with right reason and, as a consequence, with the will of the creator of nature. In 1627 reason is held to guide man to follow God’s demands in moral issues.117 Man and animal shared the aspiration for self-​ preservation and self-​procreation. Precisely the moral rod of his conscience set man apart from the instinct that guided the animal world.118 Then, what about this second type of natural law?119 In as much as its content was in principle changeable, even though not without problems (if of a pragmatic nature), it would rather seem to qualify as volitional law. Still, in ibp the ambiguity from 1605 is conspicuously upheld. Whereas lacking the moral cogency of natural law, volitional law in Grotius’s perception around 1625 participated in natural law ‘by reduction’ (Grotius here refers to the scholastic term) in the sense of not conflicting with the latter.120 Grotius’s proposition is the more interesting in that he, very intentionally, reduces the traditional province of natural law stricto sensu by transferring from this domain to the

1 15 116 117 118 119 120

the preservation of mankind as a whole. In ipc and the Nova Declaratio Grotius identifies civil law as ius gentium secundarium, a form of analogy of ius gentium proper. In his Inleidinghe, he distinguishes ‘Volcker-​Wet’ and Burger-​Wet’. As Grotius puts it in ibp, i.2.6.2 and Defensio Fidei, 311a3545. Ad. ex. (1601) 312–​331; Soph. (1635), 1–​7. ibp, (1625), Prol. 12; De imperio (posth. 1647), Ch. 3. ibp, i.1.10.1; Inleidinghe, i.2.5. Inleidinghe, 1.2.6. Cf. ibp, i.1.11.1. Cf. Ertz, ‘Grotius’s Hermeneutics’, pp. 88ff. for Grotius’s dissociation in ibp from Aristotle’ ius strictum. ibp, i.1.10.3.

194 Eyffinger ‘improper’ category precepts such as on concubinage, divorce, and polygamy that traditionally had been reserved for natural law, indeed on the authority of Scripture.121 The issue is a pertinent one as, much to, for example, Haggenmacher’s concern, precisely this category of ‘improper’ natural law formed the pièce de résistance of Grotius’s treatise of 1625. The move must therefore have been very intentional and the reason may be close at hand. Natural law is by definition square, categorical and put in absolute terms of prescription and proscription. It makes no allowances for shades of grey and excludes ‘permissibilities’. Yet this is exactly the kind of category Grotius seems to have been keen to introduce in the equation. From the outset he is careful to point out that the second category does not run counter to natural law.122 It is my strong feeling that at the heart of it all is Grotius’s ambition to find an answer to the complexity of the human condition that forever confronted man with moral dilemmas that eluded categorical answering. 9

The Realm of Middle Justice

To be sure, natural law was at the root of all forms of ius. But then, in merely prescribing morality in terms of negative justice it was inadequate to serve as the exclusive guide to man in terms of virtue and obligations123 and on the issue of supererogation.124 This province, Grotius appears to argue, ranges much wider than the strictly imperative and prohibitive. Here we leave the domain of the categorical to enter the province of the commendable and objectionable. The pertinence of this sphere to Grotius is corroborated by the way he links this domain up with his precepts of full permission (what can be done entirely licitly) and less-​than-​full permission (what can be done with mere impunity).125 The distinction is mirrored in Grotius’s monita and temperamenta with regard to war, admonitions meant to narrow down the all too lax terms of the law-​of-​nations-​under-​construction.126 What was formally permitted was 1 21 ibp, i.2.6.2. 122 ibp, i.2.1.4. 123 Haakonssen, ‘Grotius’, p. 250 with reference to ibp, Prol. 50; i.2.1.3; i.2.6.2; ii.5.9.2 and iii.13.4.1. 124 Johan Olsthoorn, ‘Grotius on Natural Law and Supererogation’, Journal of the History of Philosophy, 57/​3 (2019), pp. 439–​465. 125 ibp, Prol. 5–​8; i.1.4; i.1.17.2; and i.1.18.2 with regard to the correlation of natural law and Jewish law; Besselink, ‘Cynicism, Scepticism and Stoicism’, pp. 181–​183. 126 ibp, iii.10–​16.

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not by definition honourable or recommendable from the point of Christian charity. The same duality lies at the root of Grotius’s distinction of iustitia interna (acts that were unequivocally right) and iustitia externa (acts whose status depended on the verdict of volitional law and were therefore binding when prescribed and done with impunity when allowed).127 Grotius’s exposition of natural law has justly earned him a place of honour in the chronicles of research. Still, one can’t help wondering whether it was not actually the other domain that commanded his prime interest. To the keen student of the law, the ambiguous and changeable will by definition have a greater appeal and urgency than the obvious and immutable. To Grotius the status and perimeters of the ius naturale secundarium must have posed a formidable challenge. One gets the impression that Grotius duly took natural law for absolute criterium, but in his research primarily sounded the twilight zone, probing the moral dilemmas it left unanswered,128 even at the cost of his optima partitio.129 It might account for the minimalistic character of Grotius’s natural law proposition, as Tuck has interpreted the text,130 and suggest that, in his assessment of pros and cons (ratio probabilis) man acknowledges his personal interest in abstaining from jeopardizing the public order and the paramount objective of social life.131 The carefree bliss of the Tree of Life had been substituted with the predicament of the Tree of Knowledge of Good and Evil that symbolized what Philo had called φρόνησιν μέσην.132 Far from being a zone of indifference this was precisely where the paramount assignment of man found its sublimation: on the crossroads of the law, morals, religion and politics, thus to illustrate the contingency of the human condition –​and the cleft between morality and mathematics.133 Moral rectitude was rarely caught in a single dot. It presented itself in a floating line, a fleeting scale of gradations. It often left one with an elusive, if not deluding grey zone: shifting sands, to which mathematical certainty was by definition denied.134 In this zone of ambiguity natural law stricto 1 27 ibp, Prol. 41. 128 ibp, i.1.10.3 (and 1.2.1.4 with regard to war). Haakonssen, ‘Grotius’, p. 250. 129 Besselink, Keeping Faith, p. 70 with reference to ibp, i.1.10.1-​3-​4; cf. ibp, i.1.1.5. 130 Tuck ‘Grotius, Carneades and Hobbes’, p. 54 and The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 2001). 131 Cf. Besselink, Keeping Faith, p. 72. 132 Ad. ex., 312ff; ibp, Prol. 39; i.1.10.1; ii.2.2.1–​2; Inleidinghe, i.2.5; Annotat. in Gen. 2:9. 133 ibp, ii.23.1 and Grotius’s appeal to Arist. Nic. Eth. 1094b20ff.: ‘inmoralibus non aeque, ut in mathematicis disciplinis certitudinem inveniri.’ 134 ibp, i.2.1.3.

196 Eyffinger sensu should be supplemented with ius naturale convenientiae, ‘the natural law of convenience’. In highlighting this twilight zone Grotius did not admit to scepticism.135 In his Prolegomena he insists that Carneades’ thesis would never hold, not just with respect to natural law but neither in the domain where middle justice prevailed.136 As it is, he was well aware he was paying homage to Stoicism from Zeno to Cicero.137 In his State Parallels (c. 1600) he took documented diversity, and therefore the relativity of morals, as a given.138 In 1605 he insists on ‘middle justice’ as the epitome of the human contingency.139 The same subtly discerning approach is apparent in his Explicatio Decalogi (1640) with respect to the Mosaic legislation. One may as readily read this conviction of Grotius’s in his admonition to self-​righteous Mennonist conscientious objectors with respect to the legitimacy of booty as in his objections to rigid Calvinists 10 years later. And we repeat, from Grotius’s perspective unconditional predestination could never be an option. And this in turn helps us to the answer with respect to that other pertinent query of research, whether or not Grotius should be ranked among the adherents of rationalism. Regardless of technical argumentation Grotius’s latitude for, indeed preoccupation with moral ambiguity suggests he is not to be ranked in their numbers. We may carry the argument one step further. The above fits in with the prominent role Grotius reserves for the concept of equity and the latitude he allows to deviate from the strict observance of the precepts of the law. Given its universal and comprehensive aims natural law was by definition a framework of a general character. It was never intended to offer tailor-​made answers to the wide range of dilemmas variegated life posed to man. Equity applied to all forms of law, adding a flavour of relaxatio, clementia, indulgentia, such as in the interaction and proportionality of crime and punishment. It presented the virtue of the will to fine-​tune overall prescriptions with an appeal to the deeper 135 ibp, i.1.17.2. Grotius explores the perimeters of the commendable and objectionable on the basis of his dismissal in his Prolegomena of Carneades’ proposition regarding self-​interest. 136 ibp, Prol. 18. 137 ibp, i.2.1.2 and ii.2.2.2. with reference to Zeno and Cic. De fin. iii.58 and De off. i.7. In this context one must point to ibp, i.1.10.1, Grotius’s adherence to Cicero’s refutation of Carneades’ dismissal of justice in his De republica; Besselink, ‘Cynicism, Scepticism and Stoicism’, pp. 188–​190. 138 Parallelon rerumpublicarum, Preface. 139 ibp, i.2.13 and cf. ipc, Ch. 2, edn Hamaker, p. 13: ‘Hanc enim mediam iustitiam … humano generi propria est.’

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intent and higher aims of the legislator or, eventually, to natural reason as the court of last appeal.

Select Bibliography



Primary Literature

Althusius, Johannes, Politica methodice digesta. Herborn, 1603. Grégoire, Pierre, Syntagma iuris universi atque legum pene omnium gentium. Lyon: Gryphius, 1582. Briefwisseling van Hugo Grotius 1597–​1645. 17 vols. Ed. by P.C. Molhuysen, B.L. Meulenbroek, Paula P. Witkam, Henk J.M. Nellen en Cornelia M. Ridderikhoff. The Hague: Assen, 1928–​2001. Grotius, Hugo, De republica emendanda, ed. and intro by Arthur Eyffinger et al., Grotiana 5 (1984), p. 3–​135. Grotius, Hugo, Parallelon rerumpublicarum (1598–​ 1602), ed. Meerman, Vol. 1. Haarlem: Loosjes, 1801. Grotius, Hugo, Meletius, sive de iis quae inter Christianos conveniunt epistola, ed. by G. H. M. Posthumus Meyjes. Leiden: Brill, 1988. Grotius, Hugo, De jure praedae commentarius, ed. by H.G. Hamaker. The Hague: Nijhoff, 1868. Grotius, Hugo, Ordinum Hollandiae ac Westfrisiae pietas. Leiden: Patius, 1613, modern edn: ed. and transl. and comment. by Edwin Rabbie. Leiden: Brill, 1995. Grotius, Hugo, Remonstrantie nopende de ordre dije in de landen van Hollandt ende Westvrieslandt dijent te worden gestelt op de Joden (1615), ed. J. Meijer. Amsterdam 1949; Hugo Grotius’s Remonstrantie of 1615. Facsimile, Transliteration, Modern Translations and Analysis, ed. by D. Kromhout and A. Offenberg. Leiden: Brill, 2019. Grotius, Hugo, Verantwoordingh van de vvettelijcke regiering van Hollant ende VVest-​ Vrieslant. Paris [Hoorn: Verbeek], 1622. Grotius, Hugo, Inleidinghe tot de Hollandsche rechtsgeleerdheid . The Hague: Wed. van Wou, 1631. Grotius, Hugo, De jure belli ac pacis. Paris: Buon, 1625. Grotius, Hugo, Letter to B. Aubéry du Maurier: bw i. No. 402, pp. 384–​387; printed as: Hugonis Grotii Epistola de studio politico vel iuris publici recte instituendo. Uppsala: Mattsson, 1626. Grotius, Hugo, De veritate religionis Chistianae. Leiden: Maire,1627. Grotius, Hugo, Sophompaneas, Amsterdam: Blaeu, 1635, modern edn: Hugo Grotius, Dichtwerken, Dl. 4 [A-​B], ed. by Arthur Eyffinger. Assen: Van Gorcum, 1992. Junius, Franciscus, De politiae Mosis observatione, Leiden, 1593; further ed.: Leiden, 1602; [Heidelberg,] 1603,; English translation in Franciscus Junius, The Mosaic

198 Eyffinger Polity, transl. Todd M. Rester, ed. Andrew M. McGinnis. Grand Rapids/​MI: clp Academic, 2015. Lipsius, Justus, Politicorum sive civilis doctrinae libri sex, Leiden: Raphelengius, 1589, modern edn: Politica: six books of politics or political instruction, ed. with transl. [from the Latin] and introd. by Jan Waszink. Assen: Van Gorcum, 2004. Soto, Domingo de, De iustitia et iure libri decem. Salamanca: Andrea à Portonariis, 1553. Suarez, Francisco, De legibus et Deo legislatore. Coimbra 1612. Vazquez, Gabriel, Commentarii ac Disputationes, Commentariorvm ac dispvtationvm in (partes) Sancti Thomæ, 8 vols. Alcalá de Henares: Crespo/​Gracián, 1598–​1615.



Secondary Literature

Berljak, Matija, Il diritto naturale e il suo rapporto con la divinità in Ugo Grozio. Rome: Università Gregoriana, 1978. Besselink, Leonard F. M., Keeping faith; A Study of Grotius’ Doctrine of Natural Law. Florence: European University Institute (PhD thesis) 1988. doi: 10.2870/​93254. Besselink, Leonard, ‘Cynicism, Scepticism and Stoicism: A Stoic Distinction in Grotius’s Concept of Law’, Grotiana, 22/​23 (2001/​02), pp. 177–​196. Crowe, Michael Bertram, ‘The Impious Hypothesis; A Paradox in Hugo Grotius?’, in Grotius, Pufendorf and Modern Natural Law, ed. by Knud Haakonssen. Farnham: Ashgate, 1999, pp. 3–​34, reprint from Tijdschrift voor Filosofie, 28 (1976), pp. 379–​410. Diels, Hermann, Die Fragmente der Vorsokratiker. Berlin: Weidmann, 1956. Dufour, Alfred, ‘Grotius et le droit naturel du XVIIème siècle’, in The World of Hugo Grotius (1583–​1645), Amsterdam: apa-​Holland University Press, 1984, pp. 15–​43. Ertz, Stefanie, ‘Hugo Grotius’s Hermeneutics of Natural and Divine Law’, Grotiana, 37 (2016), pp. 61–​94. Eyffinger, Arthur, ‘On Good Faith and Bad Faith’, Grotiana, 36 (2015), pp. 79–​171. Haakonssen, Knud, ‘Hugo Grotius and the History of Political Thought’, Political Theory, 13/​2 (1985), pp. 239–​265. Haggenmacher, Peter, Grotius et la doctrine de la guerre juste. Paris: Presses universitaires de France, 1983. Hervada, Javier, ‘The Old and the New in the Hypothesis “Etiamsi daremus” of Grotius’, Grotiana, 4 (1983), pp. 3–​20. Olsthoorn, Johan, ‘Grotius on Natural Law and Supererogation’, Journal of the History of Philosophy, 57/​3 (2019) pp. 439–​465. Schneewind, Jerome B., The Invention of Autonomy; A History of Modern Moral Philosophy. Cambridge: Cambridge University Press, 1998. St. Leger, James, The ‘Etiamsi daremus’ of Hugo Grotius: A Study in the Origins of International Law. Rome: Pontifico Ateneo Angelicum, 1962.

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Todescan, Franco, Le radici teologiche del giusnaturalismo laico. 3 vols. Milan: Giuffrè, 1971–​2014. Tuck, Richard, ‘Grotius, Carneades and Hobbes’, Grotiana, 4 (1983), pp. 43–​62. Tuck, Richard, Natural Rights Theories. Cambridge: Cambridge University Press, 1979. Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant. Oxford: Oxford University Press, 2001.

­c hapter 9

Erastianism and Natural Law in Hugo Grotius’s De Imperio Summarum Potestatum Circa Sacra Stefanie Ertz 1

Introduction

Recent decades have witnessed considerably growing interest among historians of ideas in the contribution of Erastianism to Early Modern religious-​political thought; and, more specifically, the place of Erastianism in the evolution of what we are used to call (if possibly not unreservedly) ‘secular modernity’. In the broadest sense of the term, ‘Erastianism’ applies to all positions and strategies in early modern religious-​political discourse that were –​basically in response to radical political Calvinism and therefore with a natural centre of gravity in the Reformed world –​aiming at the subordination of church law to civil law.1 Once the initial debates of the name-​giver Thomas Erastus (a Heidelberg-​ based humanist physician of Zwinglian confession)2 with Theodore de Bèze and other Calvinist leaders over the churches’ divine right to excommunicate (which Erastus denied) were received by a broader European audience, numerous authors contributed to Erastian discourse, most of them from the Dutch Republic and England, where, due to the particularly close interconnection of confessionalisation with social and constitutional history, Erastian ideas were received with a special interest. 1 Or, as a nineteenth century historian of Erastianism put it: ‘[…] that system of opinions and that course of action, which deprive the Church of Christ of independent existence, and resolve it into a function of the civil government.’ Robert Isaac Wilberforce, A sketch of the history of Erastianism; together with two sermons on the reality of church ordinances, and on the principle of church authority (London: John Murray, 1851), p. 2. Wilberforce’s position could fairly well have been that of an orthodox Lutheran; he, however, was an Anglican pastor in the half way to his final conversion to Roman Catholicism (in 1854). 2 Charles D. Gunnoe Jr., Thomas Erastus and the Palatinate: A Renaissance Physician in the Second Reformation (Leiden: Brill, 2011). For a summary of Erastus’s political interventions, see this author’s ‘The Evolution of Erastianism: Hugo Grotius’s Engagement with Thomas Erastus’, Grotiana, 34 (2013), p. 41–​61. The sum of Erastus’s thoughts on church-​state relations was only published posthumously: Explicatio gravissimae quaestionis utrum excommunicatio, quatenus religionem intelligentes et amplexantes, a sacramentorum usu, propter admissum facinus arcet; mandato nitatur Divino, an excogitata sit ab hominibus (London, 1589).

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In many cases, these ideas were defended with strong implications for pushing back ecclesiastical control over the individual’s religious behaviour and conscience, which made them an important factor in paving the way for toleration ideas.3 The inventory of publications on the topic, as well as of those on further political and social claims that were developed in an Erastian framework, is impressive, and comprises prominent names such as Franciscus Junius the elder, Peter Cunaeus, John Selden, Thomas Hobbes, Baruch Spinoza –​and, in between these, Hugo Grotius.4 If the civil ruler’s control over the exercise of ecclesiastical authority provided the common religious-​political ground of Erastianism in its different settings, its strategical common ground was to argue along an interpretation of Sacred history and divine law. Erastian political ideas were ranging from demanding civilian control over church discipline via claiming the subordination of the church under the state to demonstrating the juridical and political identity of state and church. To this rough typology corresponds, if likewise roughly, the historical development of Erastianism –​ranging from Erastus’s interventions against the churches’ divine right to excommunicate5 via Grotius’s claim of the churches’ subservience to the magistrates to the conceptually highly reflected Erastianism of Thomas

3 Cf. Eric Nelson, The Hebrew Republic. Jewish Sources and the Transformation of European Political Thought (Cambridge/​London: Harvard University Press, 2011), p. 4 f, and, by the same author, ‘From Selden to Mendelssohn: Hebraism and religious freedom’, in Freedom and the Construction of Europe. Vol. 1: Religious and Constitutional Liberties. ed. by Quentin Skinner and Martin van Gelderen (Cambridge: Cambridge University Press, 2013), pp. 94–​114. 4 A comprehensive bibliography of Erastianism is still missing, and so are comprehensive studies of its dissemination in Early Modern Europe. Which is not to say that there were not already studies of important circles of Erastians, mainly in the Dutch Republic (the Leiden circle) and in England (John Selden and his followers), as well as on the intense interconnectedness of sixteenth and early seventeenth century Erastianism with humanist Hebraism both Jewish and Christian (cf. the works by Richard Tuck, Jason Rosenblatt, more recently Mark Somos and Eric Nelson). However, there do not yet seem to exist systematic (conceptual-​ historical) inquiries in the rather likely mutual influences between these diverse regional centres. As one particularly striking consequence, possible immediate (not just Selden-​mediated) influences of Grotius’s (and, in general, the Dutch Arminians’) ideas on church and state on Hobbes’s political theory still remain to be discussed –​questions that doubtlessly touch on a field of major historical importance for the debate on the ‘liberal Hobbes’. 5 Whereas, according to Gunnoe (‘The Evolution of Erastianism’, p. 49) Erastus did not oppose all forms of church discipline, his rigorous opposition to the churches’ divine right to excommunicate from the Lord’s supper was an immediate assault on ecclesial autonomy, for in Reformed understanding, the concept of the church as corpus mysticum was fundamentally based on the sacramental union.

202 Ertz Hobbes, who notoriously conceived his mature political work, the Leviathan, as the theory of a commonwealth at once ‘ecclesiastical and civil.’6 This typology is not inclusive, for certainly, Erastianism did not stop being effective with Hobbes (neither with Spinoza, whose Theological-​political Treatise (1670) was a direct response not only to Hobbes’s theory of the contractual institution and consensual legitimacy of political sovereignty, but also to the way in which Hobbes had aimed to present his concept of political sovereignty as virtually emerging from the history of the Jewish and Christian religions). With Hobbes, however, the systematic fusion of Erastianism with an absolutist theory of political sovereignty was accomplished, and, in turn, final decline began of the early, humanist history of Erastianism.7 In its early phase, the predominant strategy of Erastians had been to argue along an interpretation of Sacred history, foremost the Old Testament,8 and with a special focus on the analysis of the constitution and laws of the Hebrew Republic, the unique historical manifestation of a veritable ‘theocracy’, as Flavius Josephus had notoriously called it. Of this divinely instituted republic, Erastians argued, God himself had been the sovereign, civil and religious law had been identical, 6 For recent accounts of Hobbes’s Erastianism, see, among others, Eric Brandon, The Coherence of Hobbes’s Leviathan: Civil and Religious Authority Combined (London: Bloomsbury, 2007); Jeffrey Collins, The Allegiance of Thomas Hobbes (Oxford: Oxford University Press, 2005), J.P. Sommerville, ‘Hobbes, Selden, Erastianism, and the History of the Jews’, in Hobbes and History, ed. by G. A. J. Rogers and Tom Sorell (London: Routledge, 2000). 7 Following Lilla (The Stillborn God. Religion, Politics, and the Modern West (New York: Random House, 2007), p. 75 f.), this turn might well be identified with Hobbes’s anthropocentric perspective on religion (and thus fit well with Lilla’s own interpretation of secularization as resulting from an internal dialectics of the Christian religion). However, Hobbes’s (undoubted) anthropocentrism alone would not just give an extremely poor, but even a completely inadequate account of his theological politics. Leviathan’s ‘Kingdom of Darkness’ has its historical target precisely and exclusively in those kinds of religion, be they Presbyterian or Roman-​Catholic, that make claims on religious authority (and on the conscience of their members) independently from political authority (and from the citizen’s duties of civil obedience). Thus it was Hobbes’s express aim in the third book of Leviathan to demonstrate that both the Jewish and Christian religion were essentially state religions (a claim that clearly contradicts Lilla’s narrative). –​It might, of course, still be discussed whether Hobbes made use of Erastian arguments as a sort of shield for his materialist foundation of politics and his critique of religion –​or if not possibly Erastianism was a necessary historical background for, or even an important influence on Hobbes’s anthropological and political thought. Almost needless to say that these options may as well be inclusive. 8 For the Zwinglian background of Thomas Erastus, whose reading of Christian sacramental practice through Old Testament Law was, as Gunnoe affirms, initial for opening the discourse of the Hebrew theocracy, see Gunnoe, ‘The Evolution of Erastianism’, p. 47–​49. For further literature on this issue, see the survey Ibid., p. 48, n. 13.

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and as there had, therefore, been neither reason nor institutional place for a ‘church’ different from the state, it must be concluded that all religious institutions had been under the civil ruler’s control.9 There were numerous steps leading from the earlier humanist discourse of the Hebrew Republic to Hobbes’s systematic incorporation of Erastianism in his theory of absolutist representation.10 One of these steps would prove to be of eminent conceptual importance, but has astonishingly not drawn much attention yet. This step was the fusion of Erastian discourse on revealed divine law and church history with a discourse on natural law –​and one of the major works to operate this fusion was Hugo Grotius’s treatise De imperio summarum potestatum circa sacra (around 1617, first published 1647).11 Grotius as well had started his career as a political writer in the footsteps of classical, humanist Erastianism, both strategically and conceptually. His premature (unpublished) treatise De republica emendanda (around 1600)12 gives abundant evidence of his already being well acquainted with Erastian political ideas. In this treatise, Grotius had at once made proposals for a more centralised administration of the Dutch provinces and argued for the supremacy of the civil magistrates over the church. Both these programmatic points were expressly based on a comparison of the Dutch situation with the restoration of the Hebrew theocracy after the return from the Egyptian captivity. In ancient Israel, national and religious restoration as well had gone hand in hand, resulting in the institution of a republic that could rightly be called the ‘Church of God’.13 For the very fact that the Jewish state was considered as

9 Nelson’s The Hebrew Republic is the recently most comprehensive study of this early, humanist and Hebraist, phase of Erastianism. 10 Hobbes’s theory of representation as ‘personification’ is doubtlessly not fully to be understood without its Erastian backgrounds. Cf. most recently Johan Olsthoorn, ‘The Theocratic Leviathan. Hobbes’s Arguments for the Identity of Church and State’, in Hobbes on Politics and Religion, ed. by R. Douglass and L. van Apeldoorn (Oxford: Oxford University Press, 2018), pp. 10–​28. 11 De imperio summarum potestatum circa sacra. Critical edition with introduction, English translation and commentary by H.-​J. van Dam. 2 Vols. (Leiden: Brill, 2001). Quotes from and references to the text as well as to the commentaries and notes will hereafter be referred to as ‘di’; when referring to the text (Vol. 1), followed by an indication of chapter, paragraph, and reference to page and lines; when referring to introduction, commentaries, or notes (as contained in the same volume), followed by page references. 12 A critical edition of De republica emendanda (rediscovered only in 1964, and even later recognised as Grotius’s work) has been published by Arthur Eyffinger in Grotiana, 5 (1984). 13 ‘Apud Hebraeos, ex quo Aegyptiorum faedissima superstitione, gravissima servitute liberati sunt, omnis respublica Dei fuit ecclesia, qua ratione quadam distincta re unum

204 Ertz being immediately ruled by God seemed to prevent any attempt of political as well as priestly tyranny, so that the Hebrew theocracy could be praised as the unique model, both historically and politically, for the administrative and ecclesio-​political constitution of the young Dutch Republic. On this basis, also Grotius’s arguments concerning the state-​church-​relation had broadly followed the pathway of contemporary Hebraist Erastianism.14 None of Grotius’s (presently known) religious-​political interventions in the period preceding De imperio (neither Meletius (1612) nor Ordinum pietas (1613) nor further publications from the Lubbertus-​controversy) would revive the topic of the Hebrew Republic in a comparably encompassing manner. While it seems obvious that Grotius’s use of biblical and religious-​historical arguments in these latter writings already testifies a strong shift towards early church and synodal history –​and thus an increasing distance from any ultimate appeal to the Hebrew Republic and divine law as the major, or even ultimate, references in the church-​state-​debate –​, there was, however, still lacking a conceptual substitute for the foundational appeal to divine power and divine law. One major contribution of De imperio summarum potestatum circa sacra would be to provide such conceptual substitute –​and to integrate it with ‘classical’ Erastian accounts of biblical and church history in a way that was not only to lift Erastian discourse on an entirely new stage of conceptualisation, but also virtually to invert the classical historical pattern of humanist Erastianism –​the analysis of the political constitution of the Hebrew Republic. From De imperio onwards, Grotius would read the political history of the Hebrews, and, by extension, the entire history of divine lawgiving, against the background of an overall narrative of (divine) natural law –​a narrative that was not only meant to give account of political rule and religious authority by explaining their respective places in Sacred history, but also to give account of the ‘natural’ interaction between secular power and divine authority. By doing so, De imperio would momentously shift the focus of Erastian argument from the immediate political reading of the biblical laws to their analysis, and reconstruction, in terms of natural law and ius gentium. And this not so much in the way as to construct a mere parallel, or coincidence, between political concepts and biblical history (which had been more or less the strategy of De republica emendanda). De imperio would, by contrast, rather integrate the legal

14

idemque errant. Nos quoque Deus a similibus malis non dubie ideo vindicavit, ut ecclesiam suam inter nos extrueret.’ De republica emendanda, 2.6, p. 70. Cf. in particular the discussion of the constitutional status and juridical competence of the Sanhedrin in part iii (p. 96 ff).

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(natural law-​based) principles of the civil sovereign’s ius circa sacra in a kind of retroactive biblical-​historical narrative that would make them appear as genuine products of Sacred history. Among the most important, and presumably most influential, effects of this strategy was that Grotius’s way to reconstruct the cross-​history of divine natural law and positive divine lawgiving would eventually lead to a considerable revaluation, and lastly devitalisation, of the central theme and historical anchor of humanist Erastianism –​the topic of the Hebrew Republic. From Grotius onwards, the Hebrew Republic as political model of the Protestant state would progressively be replaced by a broader concept of biblical anthropology that would range among the major issues to be inherited from Grotius by the Early Enlightenment. 2

De Imperio Summarum Potestatum Circa Sacra

De imperio summarum potestatum circa sacra was Grotius’s last and most elaborate intervention in the theological and political troubles known as the Remonstrant-​Counter remonstrant, or Arminian-​Gomarist controversy. Due to an escalating political situation that would finally lead to Grotius’s imprisonment in 1618, De imperio was first published posthumously in Paris in 1647. When Grotius was writing De imperio, the initial confessional conflict about predestination and grace had already turned into an open conflict between state and church –​mainly on the issue whether or not the theological debate should be submitted to a national or to regional synods.15 The States General were split about this claim. Among others, Grotius’s patron Johan van Oldenbarnevelt rejected it, both in the name of the civil sovereign’s supremacy over ecclesiastical affairs, and in the name of national unity. These two issues would also be of main concern in De imperio. Grotius’s general focus, however, was on the state-​church-​problem. This also means that Grotius did not touch any of the incriminated theological issues. Instead, he fully concentrated on demonstrating that the demand for a national synod with authoritative competences was illegitimate, and this for reasons of both divine and natural law. For, as he claimed, both divine and natural law supported the supremacy of the civil power in religious matters. Not without good reason De imperio is, therefore, also the work on which most authors rely when dealing with Grotius’s commitment to Erastianism. 15

The following summary relies on van Dam’s introduction to De imperio, cf. di, pp. 1–​45.

206 Ertz However, Grotius’s use of Erastian arguments in De imperio would go some decisive steps beyond what was the classical, and also the contemporarily prevalent strategy of Erastians, and which had also been the strategy of De republica emendanda. This strategy was to start from pointing out the exemplary role of the Mosaic theocracy, and then to verify the claim of the civil magistrate’s supremacy over the church by demonstrating that precisely this had been the condition of the Hebrew Republic, whose constitution all truly Christian republics ‘should set themselves to imitate and seek to resemble as closely as they can.’16 On the contrary, it was precisely this account of the Hebrew Republic, and of Old Testament law circa sacra, that would, from De Imperio onwards, be more and more sidelined in Grotius’s treatment of Sacred history. For while making more extensive use of Erastian arguments in De imperio than in any other of his theological-​political writings of that epoch,17 Grotius would at the same time combine these arguments with arguments from natural law and ius gentium –​and this to an extent that a foremost biblical-​exegetical and church-​ historical discussion would be opened up to a discussion of divine positive law against the background of a general theory of natural and political obligation, and to a discussion of the legitimacy of the civil sovereign’s ius circa sacra in terms of universal religious duties. In broad outline, the strategy of De imperio was, first, to provide a conceptual basis for the claim that state authority legitimately, and even necessarily, included the authority over religious matters (ius circa sacra), whereas, reversely, ius in sacra (a terminus, it should be noted, which Grotius cautiously avoided) could by its very nature never give rise to any immediate political and juridical claims; and, second, to provide biblical-​historical and church-​ historical evidence for this claim. The decisive ecclesio-​political conclusions were then presented in terms of a substantial conformity of conceptual and historical evidence. Yet Grotius’s proceeding was not merely to apply certain political and juridical definitions to the reading of Sacred history in a more or less syllogistic way. His argument was, at some central points, rather to construct his conceptual conclusions as generic products of Sacred history itself –​ not insofar, however, as they were to be derived from God’s positive laws, but rather insofar Sacred history was to be read as a source of divine natural law and ius gentium. 16 17

‘Quod si qua inveniri possit respublica quae verum Deum vere auctorem praeferret, dubium non est quin eam omnes sibi imitandam et quam proxime exprimendam debeant proponere.’ De republica emendanda, 1.2, p. 66 (transl. p. 67). For the Jewish sources used by Grotius in the composition of De imperio, see di, pp. 112–​114.

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Conceptual Presuppositions 2.1 De imperio presents a strongly focused interpretation of biblical and theological sources, which are selected and combined in the way of constructing a narrative on its own. All the more it seems indispensable to start with a short summary of the conceptual prerequisites of Grotius’s argument. These latter are predominantly developed in the first four chapters of De imperio and essentially consist of (a) a definition of political sovereignty (imperium) in relation to its (subordinate) executive functions, among which priesthood (the functio sacra) must, as Grotius argues, be considered as a special case, and (b) a discussion of the relation of imperium to natural, divine, and revealed divine law. Being of crucial importance for Grotius’s ecclesio-​political positions, both these conceptual frameworks at once pre-​structure the generic account that will be given, in the exegetical parts of De imperio, of the relation between political and ecclesiastical authority according to Sacred history.18 2.1.1 Imperium Of the numerous ambiguities in Grotius’s juridical and political thought, the definition of imperium, which is the conceptual starting point of De imperio, is a striking counterexample. In any given polity, Grotius claims, there must be some person or assembly to hold the highest power of ruling and commanding. Furthermore, this power, to be the highest (above whom only God’s authority), must necessarily extend over any matter of public relevance, including the religious sphere (care for which was, as expressly stated by the Dutch Confession, a matter of predominant political relevance).19 However, as clear Grotius’s definition of sovereignty, as problematic would prove its defence against the iure divino-​standpoint of the Calvinist clergy –​as well as against all those who were not inclined to accept a political theory that did not allow for strong constitutional guarantees of ecclesiastical freedom. Thus, it was with evident scrutiny that Grotius developed his ecclesio-​political argument on the different conceptual levels involved –​referring to the

18

19

Due to the predominantly ecclesio-​political focus of De imperio, this treatise still counts among the less debated of Grotius’s works in the context of the development of his natural law theory. However, as i have argued earlier –​‘Hugo Grotius’s Hermeneutics of Natural and Divine Law’, Grotiana, 37 (2016) –​, both the concept of ius naturale concessivum and the account of patriarchal/​paternal ‘imperium’ were important intermediary steps in the transition from the earlier ‘naturalist-​voluntarist’ concept of subjective rights to their conceptualisation as moral potentiae in De iure belli ac pacis. di, 1.1–​8, pp. 156–​169.

208 Ertz constitutive principle of imperium, its legitimate extent, its subdivisions, and lastly and most delicately, its relation to natural and divine law. The constitutive principle, and distinctive feature, of imperium is defined through its moral effect, which is to produce the moral obligation to accept coercive power.20 Whereas (legitimate) rule has, accordingly, an immediate moral impact on its subjects’ consciences,21 its juridical effect (or its legitimate extent) is, as a matter of principle, restricted to the realm of external actions (that is, to those that are visible and hence of public relevance).22 There are, according to Grotius, two (and only two) kinds of imperia among humans, the father’s and the king’s, the first arising from nature, the second from institution. To these distinctions pertains (also, as we will see, in the generic sense) the distinction between declarative and imperial rule. The first applies to the authority of social instances such as physicians, tutors, teachers, or priests, whose authority as well might give rise to certain, but rather metaphorically so-​called kinds of obligation. For in any of these cases, obligation arises not from a genuine, self-​contained principle of authority, but only from the consistency of some given precepts with divine or natural law (right reason), and under the limiting condition of non-​contradiction with civil law. From which it follows by implication that no kind of declarative rule can ever interfere with the external freedom of action, the latter being an exclusive subject-​matter of civil law.23 For the legitimacy of imperium, by contrast, it is solely required that a ruler’s actions are not against natural and divine law.24 20 21

22 23 24

‘Imperativum vero regimen ex vi intrinseca supereminentiae suae obligat. […] Sine obligandi autem iure nullum est imperium. Est enim hic imperii effectus quasi naturalis.’ di, 4.6, p. 248: 20, 29 f. For correctness, it should be noted that the subject’s being bound in conscience to obedience is not expressly stated by Grotius, although certainly implied in his numerous references to Augustine and Paul; and that conscience, for Grotius, implied above all the faculty of coherent logical reasoning; for corresponding ‘ontological’, resp., ‘decision-​theoretical’ accounts of the duty of civil obedience cf., exemplarily, di, 1.3, p. 158: 16–​30 and di, 3.5, p. 212: 1–​6. di, 3.1. This paragraph also discusses the few exceptions to this principle of externality. di, 4.6. For a comment on Grotius’s possible sources for this distinction (Augustine, Aquinas, Marsilius of Padua, Suárez) see di, pp. 691–​693 (s. v. distinctionibus quibusdam). For a discussion of the conditions of lawfulness of a ruler’s commands, see di 5.12. It is interesting to see that in this place, the principle of externality is established as a juridical criterion (moral wickedness is no counterevidence of a ruler’s legitimacy as long as his actions are not unlawful), whereas the same principle can only be established hypothetically in the other direction. That is, if a ruler tried to enforce a false religion (which would be a transgression of his or her legitimate power), (external) obedience would still be required, for forceful resistance against the supreme powers could never be legitimate (di, 3.5–​6).

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The preceding set of definitions is presupposed in one last, and concluding, distinction, which is meant to clarify the juridical relationship between church and state (and which will, accordingly, be of special concern in Grotius’s account of the origins, and interrelationship, of imperium and priesthood according to divine law and Sacred history). This distinction applies to the concept of the functiones imperii, that is, to the different functions, and instances, through which political authority is exerted by way of delegation. Some of these functions (in short: all those involving the hierarchic distribution of executive power and administrative functions) must, according to Grotius, be considered as both ‘emanating’ from and being subordinate to imperium; while participating in the right to rule, their exercise does necessarily remain subordinate to the authority of the supreme power. By contrast, the functio sacra is considered as being merely subordinate to political imperium in the sense that to it applies the second quality but not the first. In difference to all other political offices, those of bishops and priests do not derive from imperium in the juridical-​political sense, which is the same as to deny any church any right to any share in civil authority.25 And yet the subordination of religious offices under (the concept of) imperium implies something more than just a claim of supremacy, for, as we will see in the following, this claim of hierarchy will be developed on the basis of a kind of transformational narrative, that is, a narrative that avoids direct political confrontation, but rather aims at a reconsideration of the relationship between the Sacred and the Secular in the formation history of the modern, Christian-​Protestant state. Subordination thus also implies that for Grotius, the (Protestant) church remains an integral, necessary part of the state. All these political-​juridical differentiations are, subsequently, explained and justified in terms of (divine) natural law, ius gentium, and, lastly, with broad support from biblical and early church history.

25

di, 2.2, p. 186: 8–​18: ‘Ceterum sub imperio positae duum sunt generum. Aliae enim subiacent et natura et ordine ut effecta a causis suis perpetuo emanantia, aliae solo ordine. Priori modo in naturalibus soli subiacent radii, flumen fonti; posteriori caelestibus terrestria. […] Sic et summae potestatis imperio priore modo subsunt quae imperium aut proprie dictam iurisdictionem continent, ut praetura, praesidiis officium et reliqua magi­ stratum munera. Posteriore vero functio medica, functio philosophica, agricultura, mercatura. Umbram igitur suam oppugnant qui magno conatu probant ecclesiarum pastores qua tales sunt, non esse summarum potestatum vicarios […].’ See also di, 3.7 (against the right of minor magistrates to resist the supreme power).

210 Ertz 2.1.2 Natural and Divine Law Natural law, to begin with, has a double sense in De imperio. In the first sense, the concept of natural law is set identical with certain moral and religious duties that are, immutably, prescribed by divine law,26 such as, according to the main examples given, to worship God, to venerate one’s parents and not to harm the innocent.27 Duties of this kind are obligatory to any individual under any circumstances; therefore, they are also to be respected (that is, their exercise is to be allowed) by the civil sovereign. In a second sense,28 natural law relates to the juridical and political constitution of human society; this part of natural law is, accordingly, subject to historical change. Natural law in this second sense –​ius naturale secundo genere –​ has a dual reference, firstly to a natural condition of man (both in the historical and moral sense), secondly to the liberty of men to restructure their social life by introducing new institutions which, if not against natural and divine law, will in turn give rise to different subjects and new kinds of obligation. Whereas, for example, common property was assumed to have been natural to men in ancient times, it was no less natural to them to introduce private property at a certain point in history. And while paternal dominion had been natural in ancient times, it was later natural to be governed by kings. In his consideration of divine positive law, Grotius displays a different scheme, because its validity does not depend on certain intrinsic moral qualities of actions, but follows from special divine commandments.29 In this case, 26 27

28

29

di, 3.5, p. 210: 28: ‘[ius divinum] (in quo comprehendo naturale)’; cf. di, 3.12, p. 224: 17 f.: ‘[lex divina], tum illa quae in mentibus hominum tum altera quae in sacris Codicibus praescripta est’. Cf. di, p. 623 and p. 651 (s. v. Iure naturali). These examples, which Grotius gives when defining the actiones naturaliter definitae (di, 7.2, p. 328: 26–​28) are probably not unintentionally taken from the two tables of the Decalogue. Apart from being affine to Grotius’s own ideas on immutable natural law, they possibly recall his reception of the Erastus-​Beza-​controversy in Ordinum pietas, where Grotius had drawn support from de Bèze’s claim that it was the Christian magistrate’s office to be ‘tabulae utriusque custodem ac vindicem’, the ‘guardian and protector of both Tables’ of the Mosaic Law, that is, of civil and ecclesiastical law. (Ordinum Hollandiae ac Westfrisiae pietas (1613). Critical edition with English Translation and Commentary by Edwin Rabbie (Leiden: Brill, 1995), § 127, p. 194: 6–​10 (transl. p. 195). Cf. Gunnoe, ‘The Evolution of Erastianism’, p. 55.) The most influential sources for this ius naturale secundo genere are the Roman concept of ius gentium and Vázquez’s and Suárez’s concepts of a permissive natural law, for whose reception De imperio is one of the earliest sources. Whereas the latter’s influence on Grotius’s natural law theory has often been emphasised, this first reception of permissive natural law is rather to be understood in the sense of a conceptual dispossession, or re-​ semantisation, of which the ecclesio-​political consequences were entirely opposite. di, 3.3, p. 208: 8: ‘[…] quae talia effecta sunt imperio divino’.

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the question cannot be about absolute or relative obligation, for that would be blasphemous, but the question can be about the addressees of divine law. Biblical history now tells us, Grotius says, about three decisive acts (and types) of divine lawgiving. The first laws were given to individuals –​notably, to Abraham, Isaac, Jacob, Moses and some prophets. Secondly, laws were given to an entire people, namely, to the Hebrews via Moses. In the third place, there are universal divine laws. Some of these were only to last for a certain time, as the rules of worship received by Adam and Noah. Others, however, were to last for ever, namely, the Christian sacraments, as far as already contained in the Gospel, ‘such as gathering together, baptism, the Lord’s supper and the like’.30 Only the articles and sacraments of the Christian faith are, therefore, strictly obligatory for Christian sovereigns, who nevertheless enjoy the right to prescribe to men ‘the circumstances –​place, time and manner –​under which actions commanded by God are to be carried out, so that these are done decently and in order’.31 Sacred History: Divine Positive Law, ‘Natural Imperium’, and the Priesthood of the Patriarchs In re-​enacting this conceptual framework through the interpretation of Sacred history, Grotius pursued a dual strategy in De imperio. The first was to provide biblical evidence for the concept of the summa potestas as the highest authority in worldly and religious matters. In this regard, Grotius followed the classical Erastian model. However, differently from his own former discussion of the Hebrew Republic –​which had only started from the phase of state-​building after the return from the Egyptian captivity32 –​he now presented an almost integral survey of Jewish-​Christian history up to late Antiquity. This history started from the pre-​state period of the patriarchs, went on through the time of Moses, the judges and the kings until the time of Roman domination and the final destruction of the second temple, where it concluded with a discussion of the early Christian synods. In the course of this examination, Grotius invoked the loci classici of Erastianism: He insisted that Moses, and not Aaron, held the ultimate religious authority. He was eager to point out that even the transfer of priestly rights to the Aaronites and Levites did not mean that these priests had enjoyed the exclusive right to interpret divine law. He insisted on the civil and not ecclesiastical character of the Sanhedrin. And he devoted several chapters to the 2.2

30 31 32

di, 3.3, p. 208: 16–​25 (transl. p. 209). di, 3.11, p. 222: 14 f. (transl. p. 223), emphasis orig. De republica emendanda, 2.6, p. 70.

212 Ertz demonstration that also the early Christian synods did not convene by their own right, but only because the emperors allowed them to do so. However, all these arguments were framed by an even more general, also subtler, narrative which opened up the interpretation of Sacred history for a broader, natural law-​and ius gentium-​based discussion of the relation between imperium and priesthood. This narrative was about how the relation between imperium and priesthood was to be understood before and after God’s positive reign over Israel, and it did not only give account of the natural sources of imperium and priesthood, but also contained all requisites to tell the story of their historical differentiation.33 Moreover, this narrative was inserted at a central place in De imperio, notably, into that very (second) chapter that basically dealt with the conceptual relation between imperium and the functio sacra. After having introduced the distinction between imperium and the functio sacra, Grotius went on with claiming that, notwithstanding what might have been ordained by divine positive law at certain points in time,34 there was no reason so assume that natural law prohibited imperium and the functio sacra to be hold by one and the same person, to which he added a concise commentary on the biblical history of worldly and ecclesiastical authority which, as it is of central importance to his argument, shall be quoted at length. This is also demonstrated by the agreement of the nations. For everyone affirms that in the earliest history of the world, when mankind was governed by domestic rather than civil authority, the heads of the family held something like kingship and played the part of priests as well. On that basis Noe sacrifices to God when the Earth is liberated from the 33

34

This story is, in De imperio, the foremost referent of the concept of ius naturale secundo genere. In De iure belli ac pacis, a comparable story will be told about the biblical/​ius gentium-​origins of private property. In both cases, the central argument is (a) to denote the natural substrate to a subsequent development, and (b) to legitimise this development by proving that in it there is nothing contrarious to the original state of affairs, from which (c) it could be concluded that the later juridical evolution had already been contained in nuce in the respective natural state of affairs. Grotius’s private property was already contained in nuce in the common usage of things; the relation between imperium and sacerdotium was already contained in nuce in the primaevel imperium of the paterfamilias. There is no such thing as ‘social negativity’ in both these accounts, or, differently said, the negative elements still appear as pertaining to the nature of things rather than to (competing) claims laid to them. For an analogous argument, relating to Grotius’s notion of the intrinsic morality of actions, see J.B. Schneewind, ‘Pufendorf’s Place in the History of Ethics’, Synthese 72 (1987), pp. 123–​155, at p. 126. di, 2.3, p. 188: 5 f.: ‘Ut ad hanc quaestionem rite respondeatur, distinguendum est omnino inter ius naturale et ius divinum positivum.’

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Flood. God says of Abraham [Gen. 18:16] that he shall show his children and his household the way of pious living. Thus we read of sacrifices by Job and other patriarchs. At the death of the father both the first position in the household and the priesthood were transferred to the first-​born, and this remained the custom in Jacob’s posterity (because they did not yet have established a state), until the Levites […] were substituted for the first-​born. […] But in the same period a kind of state had come into existence in the Canaanite region and there Melchizedek held the kingship and the priesthood at the same time. And so did Moses until the consecration of Aaron; therefore Holy Scripture calls him both ‘king’ and ‘priest’. […] It could be asked whether those fathers and kings, while the true worship of God lasted (as it probably did for some centuries after the Flood in many regions), received the priesthood in a special quality or just laid claim to it by virtue of their right as a father or a king. The opinion of learned men is that some persons may have enjoyed the authority of a divine oracle as well, but that this cannot be proved for all of them, nor is there any reason to think so. For, setting aside positive law, nothing of this kind is required to make someone a priest. On the contrary, since the people of those times, everywhere in the whole world, were obliged to honour God as far as they knew him […], they were obliged to be all priests or to charge some men out of their midst with the priesthood. The office of the father is to assign to every member of his household his duties, including the priesthood (for natural law on its own does not exempt that). But nature does not withhold him to assign to himself a function which he can assign to someone else, as long as he is fit for it. What we say about the father applies also to the king, the more so since it is agreed that in this primaeval condition the mass of free men had the right to choose their own priest. This right of free men is transferred to the supreme power […]; and these elections consist in commanding and forbidding, because a certain man is commanded to perform the actions of a priest while this is forbidden to others. Now commanding and forbidding are acts of authority; only he who has all authority is rightly named the supreme power.35 Priesthood is envisaged, in this account of its pre-​state appearance, in a threefold perspective, whose different aspects cover the entire spectrum of natural and divine law distinguished above, and whose arrangement gives a good 35

di, 2.4, p. 188: 18 –​190: 30 (transl. pp. 189–​191).

214 Ertz impression of how Grotius wanted, in this particular context, the interaction of these different kinds of law to be understood. Firstly, priesthood, as an office, is derived from the religio naturalis that prescribes to any individual the worship of God –​which duty Grotius, however, carefully provided with the limiting condition of actual knowledge of God (‘quatenus eum norant’), thus leaving open its connectivity to the Calvinist doctrine of Grace.36 Secondly, and likewise central to the argument, authority over the exercise of the priestly office –​ius circa sacra –​is derived from the original, natural law-​ based authority of the father over his family; from that same natural imperium that would in later epochs be transferred to the civil sovereign, and of which the first and genuine expression was the father’s authority to ‘assign to every member of his household his duties’. As much as Grotius’s account of paternal imperium drew on the Roman concept of paternal dominium, which had decidedly been re-​introduced in early modern political theory foremost through Jean Bodin’s Republique, it is likewise to be said that Grotius, much more than had been Bodin, was critical of the inhumanity of the father’s absolute power over his family,37 and that he included in his own interpretation of paternal rights a far broader range of antique sources,38 among which, in this context in particular, the biblical tradition, which allowed him to draw a close connection between paternal authority and religious tutorship (which, again, would serve as a basis for associating priesthood with the regimen declarativum (and not directivum) both in the historical sense and according to (divine) natural law): There is only one ordinary, permanent and primitive form of power which is placed below the supreme power without being derived from it, that of the head of a household; the power of the tutor and of the guardian have their origin in that.39 36

This formula might possibly also allude to Calvin’s sensus divinitatis (cf. Institutiones religionis Christianae, i.1. and i.3.1.) 37 Such criticism was expressed by Grotius as early as in his Parallelon rerumpublicarum, (presumably dating from 1601–​1604). Cf. Parallelon rerumpublicarum liber tertius: de moribus ingenioque populorum atheniensium, romanorum, batavorum/​Vergelijking der Gemeenebesten, ed. and transl. by J. Meerman, 4 Vols. (Haarlem: A. Loosjes, 1801–​1803), Vol. 3, cap. xxiv, p. 37–​39. i would like to thank Hans Blom for drawing my attention to this point. 38 Cf. di, p. 652 f. (s. v. patresfamiliarum etc.) 39 ‘Imperium sub supremo collocatum et non ex supremo ortum habens, quod quidem ordinarium sit et permanens ac primitivum, unicum est patrisfamilias, unde originem ducunt regimen paedagogi et tutoris.’ di, 4.6, p. 248: 23–​25 (transl. p. 249).

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And thirdly, Grotius’s express reference to the positive laws promulgated, by divine revelation, to Abraham, Isaak, Jacob and Moses was obviously meant to provide additional biblical support to his argument –​not least insofar as Moses (who did not belong to Abraham’s posterity) embodied the transition from paternal imperium to (institutional) kingship. However, why was the account of patriarchal/​paternal priesthood so important for Grotius at all? Presumably because it provided an ideal model, and at once an original pattern, for Grotius’s definition of the functio sacra as subordinate to imperium without immediately ‘emanating’ from it.40 Grotius’s account of the pre-​Mosaic priesthood was evidently meant to provide biblical-​historical evidence for his ‘functional’ account of the relation between imperial power and priestly authority: The execution of the functio sacra had, in its origin, been subject to the father’s authority not in the sense that it had been part of his ruling power as such (ex terminis), not in the sense that the functio sacra was included in the paternal prototype of ruling power. The functio sacra had, by contrast, been subject to paternal power (only) insofar as it had been in the father’s competence to distribute certain duties among the members of his family. It had, accordingly, been included in the father’s (natural) right to decide whom to transfer an office that was by its very nature not a right, but a duty –​and which, as such, could neither be immediately part of ruling power, nor be derived from the concept of imperium in the way of other (worldly) political functions. To incorporate priesthood within the concept of imperium (as subordinate to political authority), whereas distinguishing it from those other functiones imperii which, as emanationes imperii, were to be considered as participating in ruling power, was, evidently, among the most delicate points of Grotius’s argument.41 40 41

See above, n. 25. As further evidence for the crucial importance of this distinction, it might be noted that also in his analysis of the sacerdotal reign of the patriarchs, Grotius rejects any appeal to divine right. Even the patriarchs had not been priests iure divino, but only because they had reclaimed the priestly office by virtue of their imperium. –​On the background of the strong interrelationship between confessional and territorial-​political problems in the Dutch Republic, Grotius’s account of the functiones imperii may also be understood in the sense of a general auto-​correction. In his Commentarius in theses XI, ed. by P. Borschberg (Frankfurt: Lang, 1994), a rather ‘dogmatic’ apology of the Dutch revolt, Grotius had translated Bodin’s marques de la souveraineté as actus summae potestatis which might not only be distributed among different persons and institutions, but if so, were to be considered as sovereign rights on their own, and this to an extent that, whenever any such right (as, for example, the right to raise taxes) was contested, if would not only be lawful to resist, but this resistance would in turn give right to claim further sovereign rights (e.g. ius ad bellum) and even full sovereignty, as the Northern Dutch Provinces had successfully done

216 Ertz At least, Grotius considered it necessary to give supplementary conceptual account of this distinction in the fourth chapter of De imperio (which dealt with objections against the civil ruler’s ius circa sacra), through the above-​ mentioned distinction between constitutive and declarative rule, which was presumably intended to keep the balance between the necessity of defending a strong, politically based principle of religious supremacy as an important issue of national unity, and the need of a compromising formula, that is, which granted the Calvinist church an independent principle of spiritual authority while at the same time strictly subordinating all ecclesiastical polity to political authority.42 For the sake of this argument, Grotius seems not to have found it sufficient to merely adjust his concept of sovereignty, which was given a clearly more absolutist shape in De imperio than in his earlier writings.43 He also seems not to have found it sufficient to rely on an according interpretation of the Hebrew theocracy and of Hebrew civil law. After all, it had been by God’s own positive law that the Aaronites (Ex. 28:1, 29:9), and later the Levites (Dtn. 18:1–​ 8; Num. 1:49–​50), had been bestowed with priestly functions, which made Grotius’s claims about ius circa sacra rather difficult to be pursued throughout the entire biblical history. This custom of combining earthly power with the priesthood was current in the whole world for about two thousand five hundred years, in many places for a longer time. Elsewhere it was abolished by the debauchery, negligence or continuous warfare of kings, but in God’s own people by positive divine law, viz. that law which bestowed the priesthood not on just anyone from among the people but only on the house of Aaron. When that law came into effect, what had been praiseworthy before now became a crime. For the king who came from a different house was

42

43

against the Habsburg supremacy. So it was even more necessary for Grotius to uphold a strict distinction between political functions (deriving from rights) and religious offices (deriving from duties). The political-​pragmatical problem to which that solution responded was a conflict between two equally important political aims –​religious tolerance on the one hand, national unity on the other. As soon as the majority religion would prove increasingly foundationalist and intolerant –​which was precisely the context in which De imperio was composed –​the conflict would virtually turn unresolvable; and, given that the religious conflict was at the same time a social-​political and constitutional one, it would obviously no longer have sufficed to appeal to the state’s supremacy over the church. Cf. in particular di, 4.3, p. 240: 1 f.: ‘Est enim rex proprie regis nomen obtinens non tantum singulis de populo sed et populo universo superior […].’

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strictly forbidden to appropriate the priesthood, because of God’s clear prohibition.44 As additional counterevidence to Grotius’s conceptualisation of the origins, and original juridical status, of priesthood, Old Testament political history had posed numerous further hermeneutic problems –​such as, for example, how to explain why the Hebrew Republic was addressed, in the Old Testament, as a ‘priestly kingdom’, why Moses was called ‘both king and priest’, or to demonstrate the merely civil character of the Sanhedrin –​which would still be one of the most fiercely discussed points in the English debate of the 1640s.45 One classical Erastian strategy had been to infer the civil character of these institutions from their factual output, preferably by pointing to the several cases in which either the Hebrew kings or the Sanhedrin had taken the liberty to give dispensation to certain persons, or in certain circumstances, from the observance of ceremonial laws. However, it could still be contested that these acts had been a matter of civil law. Or, as another common objection, such acts could rather be considered as proving the apostasy of these kings –​an argument that had likewise been brought forward by de Bèze, Bellarmin and Suárez. Obviously, de facto arguments could neither sufficiently prove that a certain institution had been civil and not religious, nor could they give account of the general legitimacy of the civil sovereign’s ius circa sacra. To overcome this argumentative deadlock might reasonably be assumed to have been among the initial motives of Grotius’s decision to go one decisive step beyond the interpretation of God’s positive law, and to trace back the relationship between worldly and priestly authority to their common origins in the authority of the patriarchs, resp. patresfamilias. 44

di, 2.5, p. 192: 7–​13 (transl. p. 193). Nelson seems to have overlooked this passage in his discussion of De imperio, and he also seems to have ignored that Grotius does not at all claim that, after the return from Babylonian captivity, supreme jurisdiction had been with the civil rulers of the Hebrews (cf. Nelson, The Hebrew Republic, p. 103). On the contrary, Grotius diagnoses a priestly tyranny for this period of time (di, 2, 5, p. 192: 31–​34). But he argues that even then, some of the father’s priestly prerogatives had been kept, such as circumcision and the right to slaughter the Passover lamb (di, 2.5, p. 194: 1–​5) –​notably, the Old Testament antitypes of the two central Christian sacraments, baptism and Lord’s supper. It should be mentioned, however, that Grotius not only emphasises that the gift of prophecy had, during that epoch, likewise be bestowed on kings and even on individuals rather than on priests (di, 2.5. p. 194: 6–​9), but that he also subjoins some conjectures about God’s pedagogical purposes when allowing the temporary autonomy of priesthood in ancient Israel (cf. di 2.5, p. 192, 18 ff.) 45 Cf. di, p. 628 f. (s. v. in imperiis quae summo subsunt); Nelson, ‘From Selden to Mendelssohn’.

218 Ertz Not the entire argument was the invention of Grotius, who could rely on a respective discussion of patriarchal priesthood in Thomas Bilson’s De perpetua ecclesia Christi gubernatione (1611),46 but also on passages in Erastus, and even on an account given by Suárez of the religio naturalis of the patriarchs.47 However, Grotius‘s use of these sources was doubtlessly original. For, in difference to his sources, Grotius would not just associate the pre-​state priesthood of the patriarchs with natural religion, or, as Bilson would do, with the ‘natural’ (pre-​state) condition of the church. While certainly drawing on his predecessors’ interpretations, Grotius would, foremost, associate the religion of the patriarchs with the natural ‘imperium’ of the paterfamilias, which made his interpretation of patriarchal priesthood become a central point of coincidence between conceptual, biblical-​historical and extra-​biblical historical evidence –​and one that was even qualified to rule out the paradigmatic role of the Hebrew theocracy as the main reference in the discourse of ius circa sacra. In sum, Grotius’s account of patriarchal priesthood in De imperio was to make the civil sovereign’s ius circa sacra an affair, no longer predominantly of interpreting God’s positive laws, but rather of natural law and ius gentium. By doing so, Grotius offered an interpretation of Sacred history that would lastly –​ namely, in De iure belli –​result in making the Hebrew theocracy appear as a rather subordinate –​even extraordinary –​episode in an overall narrative of the historical interaction between natural law and universal divine positive law.

46

In the original: The Perpetuall Government of Christs Church (London, 1593). –​Thomas Bilson (1536–​1616), bishop of Winchester, had been a close confidant of James i since the latter’s coronation. He had also been redactor at last hand of the King James bible translation. In his Ordinum pietas, Grotius had called Bilson ‘the most reliable guide to ecclesiastical archeology’ (Ordinum pietas, § 128, p. 194: 17–​19 (transl. p. 195)). According to van Dam’s collation (di, p. 128), Bilson’s De perpetua ecclesia Christi gubernatione was the main source for the discussion of priestly functions in ­chapters 10 and 11 of De imperio. It might be added that, given Grotius’s obvious interest in Anglican ecclesiology in this particular case, Bilson’s treatise could also have been a source of inspiration for his own biblical ecclesiology. Also Bilson had –​with the intention to rule out the Presbyterian idea of ecclesial self-​administration –​claimed ‘Ecclesiam Dei iam inde ab initio, ab Adamo ad Mosen, a Mose ad Christum […] administratum fuisse’ (De perpetua ecclesia Christi gubernatione, p. 2), and that the first appearance of this church had been ‘domestical’ (‘disciplina domestica’). But Bilson as well had considered Moses’s institution of the Sanhedrin as the decisive moment in Old Testament church history and recommended the Mosaic constitution circa sacra as the normative model of Christian church government (Ibid., p. 4), so that the construction of a consistently natural law-​based biblical genealogy of the church-​state-​relation can doubtlessly be considered Grotius’s invention. 47 Cf. di, p. 652 f. (s. v. patresfamiliarum etc.).

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Moreover, De imperio was also pioneering in the elaboration of that very distinction between ius naturale (divinum) and ius divinum positivum for which De iure belli ac pacis was to become famous, and which –​being a conceptual and not just historical distinction, that is, which did not just apply to different modes of promulgation, but also, and even foremost, to distinct modes of obligation –​would prove extremely important in the transition from early modern to enlightened natural law, as well as for the transition from humanist bible interpretation to rational bible criticism. 3

Conclusion

De imperio was among the most influential religious-​political treatises of the second half of the seventeenth and the first half of the eighteenth centuries. Of the eight editions between 1647 and 1690 already, five were printed outside the Netherlands.48 An English translation had been issued as early as 1751. Selden possessed three copies of De imperio,49 and Spinoza kept the book in his private library.50 These few data already testify a by far more than regional relevance and intellectual attraction of De imperio. Whereas, however, De imperio was not only Grotius’s most reflected, integral, and historically coherent attempt at an Erastian solution to the confessional-​ political conflicts in the Dutch Republic, but also the work in which Grotius would most extensively rely on support not only from biblical and Patristic, but also from Hebrew (and Hebraist) sources,51 the result of Grotius’s engagement with Erastianism would be a virtually completely inverted account of what had been the basic reference of ‘first’, humanist-​Hebraist Erastianism. With De imperio, Grotius would shift the debate on ius circa sacra from the civilian interpretation of Old Testament Law (and early Christian synodal 48

The first two editions (1647, 1648) were issued in Paris, followed by a French translation in 1651; in the same year was issued, in London, an English translation. Further Latin editions were published, outside the Netherlands, in London (1679) and Frankfurt (Main) (1690). (Ter Meulen/​Diermanse, Bibliographie des écrits imprimés de Grotius (The Hague: Nijhoff, 1950) ns. 894–​900; 903). For further details on the first print editions of De imperio see di, p. 76–​105; for its early reception, see Ibid., p. 105–​107. 49 Cf. di, p. 107. 50 Cf. Baruch de Spinoza. Lebensbeschreibungen und Dokumente, ed. by M. Walther (=​ Sämtliche Werke, Vol. 7, Hamburg: Meiner, 1998), p. 266. 51 Cf. Gunnoe, ‘The Evolution of Erastianism’, who considers, for both these reasons, De imperio as the most profound contribution to Erastianism both from a diachronic and contemporary perspective (Ibid., p. 60 f.)

220 Ertz history) to a debate on the common principles of political and ecclesiastical authority in (divine) natural law. This was, at once, to initiate the substitution of earlier Erastianism’s hermeneutic methods –​the parallel, or typological reading of Old and New Testament law –​by a much more linearly, progressively structured narrative –​and one in which there was a strong tendency to sideline the political history of the Jews. The decisive biblical-​hermeneutical step that enabled, and accompanied, these conceptual and hermeneutical shifts was to reposition the ‘constitutional act’ of positive divine lawgiving at the pre-​state sacerdotal reign of the biblical patriarchs, from where, then, could be derived –​with support both from the Roman concept of the paterfamilias and from the Pauline-​Augustine tradition of natural faith –​at once the concepts of political and religious authority, and their interrelationship, in the way of an externalisation of a functional (i.e. at the same time: legitimizing) difference between worldly and spiritual authority that had, in nuce, already been contained in the state of their primaeval identity. The more immediate references, and implications, of Grotius’s specific ‘functional’, natural law-​based account of ius circa sacra are certainly to be searched for in the specific features of Dutch confessional and church history. Grotius’s corresponding reading of Sacred history in terms of natural law, however, would prove effective far beyond its immediate political context, and also beyond merely providing an influential pattern for the further conceptualisation of the church-​state-​relationship, in particular, in England and Germany.52 It was, to the same extent at least, also a highly important contribution, both to paving the way for rational biblical criticism, and for the history of conjectural ‘natural law-​anthropologies’ in the later seventeenth and eighteenth centuries.

Select Bibliography



Primary Literature

Bilson, Thomas, The Perpetuall Government of Christs Church. London, 1593. Grotius, Hugo, De imperio summarum potestatum circa sacra. Critical edition with introduction, English translation and commentary by H.-​J. van Dam. 2 Vols. Leiden: Brill, 2001. Grotius, Hugo, De republica emendanda. Ed. and intr. by Arthur Eyffinger, in Grotiana n. s. 5 (1984).

52

For this, see again Gunnoe, p. 60 f. with further literature.

Erastianism and Natural Law



Secondary literature

221

Brandon, Eric, The Coherence of Hobbes’s Leviathan: Civil and Religious Authority Combined. London: Bloomsbury, 2007. Collins, Jeffrey, The Allegiance of Thomas Hobbes. Oxford: Oxford University Press, 2005. Ertz, Stefanie, ‘Hugo Grotius’s Hermeneutics of Natural and Divine Law’, in Grotiana, 37 (2016), pp. 36–​71. Gunnoe Jr., Charles D., ‘The Evolution of Erastianism: Hugo Grotius’s Engagement with Thomas Erastus’, Grotiana, 34 (2013), p. 41–​61. Gunnoe Jr., Charles D., Thomas Erastus and the Palatinate: A Renaissance Physician in the Second Reformation. Leiden: Brill, 2011. Schneewind, Jerome B.,‘Pufendorf’s Place in the History of Ethics’, Synthese, 72 (1987), pp. 123–​155. Lilla, Mark, The Stillborn God. Religion, Politics, and the Modern West. New York: Random House, 2007. Löwith, Karl, Meaning in history. Chicago, 1949. German translation: Weltgeschichte und Heilsgeschehen. Stuttgart, 1953. Lübbe, Hermann, Säkularisierung. Geschichte eines ideenpolitischen Begriffs. Freiburg/​ Munich: Alber, 1965 (3rd ext. edn 2007). Luhmann, Niklas, Die Religion der Gesellschaft. Frankfurt/​Main: Suhrkamp, 2002. Marramao, Giacomo, ‘Säkularisierung’ in Historisches Wörterbuch der Philosophie, ed. by J. Ritter and K. Gründer. Basel: Schwabe, 1971–​2007, Vol. 8, c. 1133. Nelson, Eric, ‘From Selden to Mendelssohn: Hebraism and religious freedom’, in Freedom and the Construction of Europe. Vol. 1: Religious and Constitutional Liberties. Ed. by Quentin Skinner and Martin van Gelderen. Cambridge: Cambridge University Press, 2013. pp. 94–​114. Nelson, Eric, The Hebrew Republic. Jewish Sources and the Transformation of European Political Thought. Cambridge/​London: Harvard University Press, 2011. Olsthoorn, Johan, ‘The Theocratic Leviathan. Hobbes’s Arguments for the Identity of Church and State’, in Hobbes on Politics and Religion, ed. by R. Douglass and L. van Apeldoorn. Oxford: Oxford University Press, 2018. pp. 10–​28. Rorty, Richard, ‘Against Belatedness. The Legitimacy of the Modern Age by Hans Blumenberg, translated by Robert Wallace’, London Review of Books, 5/​11 (16 June 1983), p. 3–​5. Schmitt, Carl, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität. Berlin: Duncker & Humblot, 1922. Sommerville, Johann P., ‘Hobbes, Selden, Erastianism, and the History of the Jews’, in Hobbes and History. Ed. by G. A. J. Rogers and Tom Sorell. London: Routledge, 2000. Taylor, Charles, A Secular Age. Cambridge MA: Harvard University Press, 2007.

222 Ertz Wilberforce, Robert Isaac, A sketch of the history of Erastianism; together with two sermons on the reality of church ordinances, and on the principle of church authority. London: John Murray, 1851.

­c hapter 10

Grotius on the Foundation of Natural Law Jiří Chotaš The best-​known sentence from Grotius’s treatise On the Law of War and Peace (De iure belli ac pacis, 1625) is found in the Prolegomena, that is, in the introduction, where Grotius says: ‘What we have been saying [about the signification of the word “law” (jus)] would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him’.1 This statement, known as the ‘impious hypothesis’, and in particular the phrase ‘even if we should concede’ (etiamsi daremus), has inspired a heated discussion about whether Grotius conceives of the foundation of the natural law (jus naturae) in secular or in theological terms.2 A secular interpretation would imply that Grotius develops a system of natural law that is not based on and does not presuppose the tenets of the Christian religion. It would make Grotius the first post-​medieval thinker who tried to create a fully secular theory of natural law.3 Proponents of the theological interpretation, on the other hand, point out that the sentence quoted above implies a thought experiment, a speculation of the kind frequently encountered in scholastic writings.4 According to these interpreters, it is hard to see what Grotius’s innovative approach might consist in.

1 The English text of De iure belli ac pacis is quoted from the Carnegie edition: Hugo Grotius, On the Law of War and Peace, tr. by Kelsey (Oxford: Clarendon Press, 1925) hereafter ibp. This quotation: ibp, Prol. 11. 2 Kelsey translates jus naturae as ‘law of nature’. Where Grotius speaks of lex, Kelsey uses the term ‘statute’ (ibp, i.1.9.1). In the following, we follow this terminology, while slightly adjusting Kelsey’s translation with respect to other issues. 3 See Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge, 1996), 29. Schneewind notes: ‘[This sentence] was taken to show that Grotius was working out a system of natural law that made no appeal to religion. But even if it had been wholly novel to attempt such a thing, the sentence is weak evidence for the claim. Grotius did not accept the infamous hypothesis’, Jerome Schneewind The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge : Cambridge University Press, 1998), p. 68. 4 For instance, in the writings of Gabriel Vasquez, a Spanish Jesuit; see James St. Leger, The ‘Etiamsi daremus’ of Hugo Grotius: A Study in the origins of International Law (Rome: Pontifico Ateneo Angelicum, 1962), p. 146.

224 Chotaš The ‘impious hypothesis’ is, like many other similarly famous sayings, often quoted out of context. What tends to be neglected is the fact that the sentence is part of a larger argument presented in the Prolegomena and its meaning is co-​ determined by this context. In the first part of this study, we aim to explain the meaning of the impious hypothesis, by taking into account what Grotius says about natural law in the treatise proper, especially in Book i. It is there that Grotius defines natural law and distinguishes it from other kinds of law. Especially important in this context is the relation of the law of nature to the law of nations (jus gentium) and the volitional divine law (jus voluntarium divinum). And finally, we show how Grotius uses all three kinds of law to justify a ‘just war’. Once we understand the mutual relations of the particular kinds of law, we can start appreciating their importance and interactions.5 Grotius’s ambitions in On the Law of War and Peace are legal rather than philosophical. His goal is to show how, using the ‘first principles’, such as his rudimentary theory of human sociability and natural law, the entire system of law could be laid out or reformed, how the various existing legal relationships –​for instance property, family, slavery, etc. –​could be incorporated, to create space for ordering the practical relations between states and nations. These aims significantly contributed to the popularity of Grotius’s treatise, especially in Protestant countries.6 A scholar of philosophical inclinations, however, has to face the fact that Grotius says very little about the abovementioned ‘first principles’. His scattered remarks on this subject are open to varying interpretations. With full awareness of this challenge, let us now turn our attention to Grotius’s argument in the Prolegomena. 1

The Impious Hypothesis in the Prolegomena

Grotius’s main goal in the Prolegomena is to present an overview of the main points of the treatise.7 He states that its main focus will be on ‘[t]‌hat body of law …

5

6

7

We do not deal here with Grotius’s foundation of natural law as he presents it in his early work, the Commentary on the Law of Prize and Booty (1604), because it is different from the explanation given in the treatise On the Law of War and Peace and would require a separate treatment. In Catholic countries, with the exception of France and Naples (see the contribution of Adriana Luna to this volume), Grotius’s treatise was not received favorably, in part also because already in 1626, it was placed on the Index Librorum Prohibitorum. See Arthur Nussbaum, A Concise History of the Law of Nations (New York: Macmillan, 1947), 111. Prolegomena can be divided in three parts: Introduction to the issue that is to be investigated (§§ 6–​27), description of the structure of the treatise (§§ 33–​35), and description of

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which is concerned with the mutual relations among states or rulers of states, whether derived from nature, or established by divine ordinances, or having its origin in custom and tacit agreement’ (ibp, Prol. 1).8 He identifies this law with the law of nations and claims that although ‘the welfare of mankind demands that this task be accomplished’ no one as yet treated this subject in a comprehensive and systematic manner (ibp, Prol. 1). According to Grotius, this is a highly pressing task, because ‘there is no lack of men who view this branch of law with contempt as having no reality outside of an empty name’ (ibp, Prol. 3).9 Grotius therefore sets out to briefly refute this dangerously erroneous view. In doing so, he refers to a speech, which Carneades –​one of the most important classical skeptics –​once held in Rome. According to Grotius, Carneades claimed that

8

9

Grotius’s relation to his predecessors, including some considerations upon methods used (§§ 36–​61). Tuck points out some differences between the 1625 version of the Prolegomena and later, post-​1631 versions and relates them to a discussion about the role of God in the foundation of natural law. In his view, it is quite evident that ‘the first edition of De Iure Belli ac Pacis was far more dismissive of the role of God in natural law than the subsequent editions’ (Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), p. 101). In 1631, however, Grotius ‘attempted to make divine law a basis for natural law’ (Tuck, Rights of War and Peace, p. 100). At that point of his life, Grotius wished to return to the United Provinces. It is therefore likely that these changes were ‘part of a campaign to make Grotius’s views appear more acceptable to the Aristotelian, Calvinist culture of his opponents within the United Provinces’ (Tuck, Rights of War and Peace, p. 99). For instance, phrases such as ‘or established by divine ordinances’ for the first time appear in the treatise in its 1631 version. I believe that one need not draw such far-​reaching conclusions from differences between the early and later versions of the text. They are more likely to have been motivated by Grotius’s desire to express himself more clearly than by a profound change of views on the subject. In the following, differences between the various versions of the Prolegomena are therefore not taken into account. In his On the Law of War and Peace, Grotius intentionally avoids any reference to contemporary conflicts, such as the war between the Dutch Republic and Spain (1568–​1648) or the war between the Dutch Republic and Portugal, about which he wrote a Commentary of the Law of Prize and Booty (1604). On top of these conflicts, there were religious wars raging in France, where he was in exile at the time, and most importantly, Europe was in the grip of the Thirty Years’ War (1618–​1648), cf. Cornelis van Vollenhoven, The Framework of Grotius’s Book De Iure Belli ac Pacis (Amsterdam: Noord-​Hollandsche Uitgeversmaatschappij, 1931), p. 23. This peculiarity of Grotius’s argumentation, his silence on this subject, makes it hard to identify the intended addressees of his criticism. Grotius usually illustrates his arguments by examples from ancient and medieval authors, whom he does not, however, treat as authorities, as scholastic writers would. Instead, he rationally evaluates their views. See Robert Schnepf. ‘Naturrecht und Geschichte bei Grotius. Ein methodologisches Problem

226 Chotaš … for reasons of expediency (utilitate), men imposed upon themselves laws, which vary according to customs, and among the same peoples often undergo changes as times change; moreover that there is no law of nature (ius naturale), because all creatures, men as well as animals, are impelled by nature toward ends advantageous to themselves; that, consequently, there is no justice, or, if such there be, it is supreme folly, since one does violence to his own interests if he consults the advantage of others. ibp, Prol. 510

Carneades, as presented by Grotius, posits a link between justice and natural law. If we thus question the natural law, we also bring justice into question. Grotius contests this skeptical view using an argument in which he first defends the existence of natural law and then also that of the law of nations. His intention is to show that there exists justice separate from self-​interest. Grotius lived at a time when the system of shared and enforceable values, a system embodied in papal authority, had become less self-​evident. His humanistic education inspired him to seek answers in a pre-​Christian tradition of natural law, a tradition embodied for instance in the writings of the Stoics.11

10

11

rechtsphilosophischer Begründung’, Zeitschrift für Neuere Rechtsgeschichte, 20/​1–​2 (1998), pp. 1–​14, at p. 12. Tuck points to a renewed interest in skepticism among Grotius’s predecessors, such as Michel de Montaigne and Pierre Charron. He sees Grotius’s attack on Carneades in the Prolegomena as an attack on ‘moral relativism’ and ‘ethical skepticism,’ whose aim it is to show, using empirical evidence, that there exists a ‘minimalist moral theory’, Richard Tuck, ‘Grotius, Carneades and Hobbes’, Grotiana, 4 (1983), pp. 43–​62, at p. 54. Tierney, on the other hand, convincingly argues that ‘there is very little evidence of any considerable preoccupation with seventeenth century skepticism running through Grotius’s writings’, Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law 1150–​1625 (Grand Rapids: Eerdmans, 1997), p. 321. Another interpreter, Sabine, shows –​correctly in my view–​that Grotius, just like Cicero before him, frames his examination of the foundations of natural law as a debate between its proponent and opponent, see George H. Sabine,. A History of Political Theory (London: George G. Harrap & Co., 1937), p. 360. Unlike Tuck, however, Sabine does not conclude that Grotius’s innovation rests in overcoming skepticism, that this is where Grotius differs from the scholastics. To wit, for the scholastics, skepticism was not a relevant issue. For the purpose of my investigation, however, the question of skepticism in Grotius’s writings does not need to be settled. See Sabine, History, p. 360. Recently, Grotius’s relation to ancient authors has been re-​ examined especially by Benjamin Straumann, Roman Law in the State of Nature: The Classical Foundations of Hugo Grotius’ Natural Law (Cambridge: Cambridge University Press, 2015).

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One of the most prominent characteristics of humans as animals is a desire for society (appetitus societatis), an instinctive drive to create a community (communitas) that would be peaceful (tranquilla) and ‘organised according to the measure of [their] intellect’ (ibp, Prol. 6). Unlike animal communities, human community is not based only on feelings but also, and above all, on intellect. Unlike animals, moreover, humans have a ‘special instrument’ for communication, namely speech (sermo) and ‘the faculty of knowing and acting in accordance with general principles’ (ibp, Prol. 7). The source of law (fons … iuris) in the proper sense of the term is the desire of and need for maintenance of a social order that is consonant with human intellect. According to Grotius, five rules apply to this sphere of law: [T]‌he abstaining from that which is another’s, the restoration to another of anything of his which we may have, together with any gain which we may have received from it; the obligation to fulfil promises, the making good of a loss incurred through our fault, and the inflicting of penalties upon men according to their deserts. ibp, Prol. 812

These rules express the minimal conditions or values that need to be observed if human society is to exist in an orderly fashion. They are not the product of some voluntary choice or convention, but rather their precondition. Natural law then in turn provides the basis for and enables the existence of various systems of state law and the law of nations, because both kinds of law depend on the sanctity of mutual agreements.13 Grotius then goes on to discuss law in its more extended meaning. Humans, he says, differ from animals not only in having a ‘strong bend toward social life’ but also the power of discrimination which enables them to discern which things are agreeable and which are harmful. People are capable of being guided by well-​tempered judgement (judicium recte) instead of just fear or rash impulses. Whatever contradicts human judgement is also incompatible with natural law, and thereby with human nature.14 Grotius mentions ‘the rational allotment to each man, or to each social group, of those things which are 12

Grotius adopts these principles from Roman private law but interprets them as generally valid (Christoph A. Stumpf, The Grotian Theology of International Law: Hugo Grotius and the Moral Foundations of International Relations (Berlin: De Gruyter, 2006), p. 45). 13 Sabine, History, pp. 360f. 14 In the Prolegomena, it remains unclear what this claim actually means. It is explained only in the Book i, where Grotius defines the natural law (ibp, i.1.10.1).

228 Chotaš properly theirs’ (ibp, Prol. 10) as an example of a well-​tempered judgement and adds that many scholars see this ‘discriminating allotment’ as a part of law.15 Grotius, however, rejects this broad conception of law, because in his view it expresses a moral duty, while law should be understood in a narrower sense. In the following part of the Prolegomena, Grotius discusses the various sources of law. He introduces this section by a sentence we quoted already at the beginning, namely ‘What we have been saying [sc. about the signification of the word ‘law’ (jus)] would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him’ (ibp, Prol. 11).16 To understand this claim, we need to consider how it relates to preceding paragraphs eight to ten of the Prolegomena, where Grotius explains various meanings of the term ‘law’. So far, we saw that the natural law is valid thanks to human nature, just as the Stoics had thought. Now Grotius ask a rhetoric question: Under what conditions does natural law apply?17 Would it be valid even if there was no God or if God took no interest in human affairs? As a scholar, Grotius must admit a possibility –​which he personally finds worrisome –​that the natural law has a secular nature.18 Grotius responds to this rhetorical question like a true, god-​fearing Calvinist, when he states that ‘[t]‌he very opposite of this view has been implanted in us partly by reason, partly by unbroken tradition, and confirmed by many proofs as well as by miracles attested by all ages. Hence it follows that we must without exception render obedience to God as our Creator, to Whom we owe all that we are and have’ (ibp, Prol. 11). What is remarkable about this justification is the fact that Grotius appeals first to human reason (ratio) and only secondary to the authority of the Bible (ibp, Prol. 13). From a Christian perspective, however, the idea of a secular foundation of natural law does appear to be ‘utmost wickedness’. As Christians, to wit, we must be obedient to God without exception. Grotius uses this consideration to indicate the way to another source of law, a source distinct from human nature, namely the free will of God. He states that ‘the

15 16

As an example, Grotius adduces Ambrose and his treatise On Duties (cf. ibp, Prol. 10). Et haec quidem quae iam diximus, locum haberent etiamsi daremus, quod sine summo scelere dari nequit, non esse Deum, aut non curare ab eo negotia humana. The word aliquem appears in the text only since its 1631 edition. 17 On the influence of classical rhetoric on the methods Grotius uses in his works, see Straumann, Roman Law in the State of Nature, pp. 51–​82. 18 Nussbaum, A Concise History, p. 105.

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law of nature … proceeding as it does from the essential traits implanted in man, can nevertheless rightly be attributed to God, because of His having willed that such traits exist in us’ (ibp, Prol. 12). Grotius includes among these essential traits planted in us by God also sociableness, which he had previously shown to be the source of the natural law, adding that ‘sacred history … in no slight degree reinforces man’s inclination towards sociableness by teaching that all men are sprung from the same first parents’ (ibp, Prol. 14). The idea that all humans ultimately share the same parents is of special importance to the law of nations. It implies not only that all people were created by the same God but also that since they all derive from the same parents, they ought to treat each other as brothers and sisters. From this, Grotius derives a conclusion which pertains to the first part of Carneades’s objection, namely that there is no natural law, and that people, just like animals, are driven by their nature only to seek what is beneficial and useful to themselves. Grotius does not deny that people as well as animals are driven by self-​interest. His theory of rudimentary sociableness does, however, imply that people are also driven by interest and care of others, and that is the source of law and justice. He can, therefore, claim that ‘the very nature of man, which even if we had no lack of anything would lead us into the mutual relations of society, is the mother of the law of nature’ (ibp, Prol. 16). Human intelligent nature is the foundation of natural law, which then serves as the ultimate grounding of various systems of municipal law: ‘[T]‌he mother of municipal law is that obligation which arises from mutual consent; and since this obligation derives its force from the law of nature, nature may be considered, so to say, the great-​grandmother of municipal law’ (ibp, Prol. 16). The impious hypothesis is then formulated in a context where Grotius differentiates the various sources of law and shows their mutual compatibility. It is not implausible that the impious hypothesis is part and parcel of this analysis of the various sources of law rather than an explicit and separate thesis.19 At this point, Grotius can turn to the second part of Carneades’s objection, namely the claim that there is no law of nations. Grotius points out that the

19

Besselink offers a good overview of the various interpretations of the impious hypothesis. He concludes: ‘Intriguing as are all the suggestions for the source from which Grotius got the ‘etiamsi daremus’ formula, a non liquet is not out of place. Notwithstanding the fact that for some of the suggestions a number of rationes probabiles can be given, the very fact that such counterfactual assertions are commonplace in antiquity, the middle ages and later, makes it impossible to attribute to any single one of them the status of the source from which Grotius drew his one sentence … Perhaps it is more important to see what Grotius meant to say with the hypothesis, than to hunt for its origin, particularly because

230 Chotaš natural law and expediency (utilitas) are inextricably linked. Using a theological argument, he deduces that ‘the Author of nature willed that as individuals we should be weak and should lack many things needed in order to live properly, to the end that we might be the more constrained to cultivate the social life’ (ibp, Prol. 16). People are characterized by a degree of sociability that is founded in their nature, in their constitution. At the same time, however, expediency is the reason why individuals form communities, create municipal law, and subsequently obey it. Grotius then draws a parallel between individuals and states, claiming that just as among individuals, their sociability rests upon expediency, i.e., usefulness for themselves, so agreeable relations among states are likewise driven and determined by expediency: But just as the laws of each state (civitas) have in view the advantage of that state, so by mutual consent it has become possible that certain laws should originate as between all states, or a great many states; and it is apparent that the laws thus originating had in view the advantage, not of particular states, but of the great society of states. And this is what is called the law of nations, whenever we distinguish that term from the law of nature. ibp, Prol. 17

Based on their mutual consent, states create laws which are beneficial and expedient for the whole society of states and not just any particular state, regardless of how powerful. Each state, even the smallest one, should have some profit from such an alliance. This is because there is no state so powerful that it may not some time need the help of others outside itself, either for purposes of trade, or even to ward off the forces of many foreign nations united against it. In consequence we see that even the most powerful peoples and sovereigns seek alliances, which are quite devoid of significance according to the point of view of those who confine law within the boundaries of states. ibp, Prol. 22

different authors have had different purposes for using it’. See Leonard F. M. Besselink, Keeping Faith; A Study of Grotius’ Doctrine of Natural Law. Ph.D. thesis (Florence: European University Institute, 1988), pp. 150–​151.

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Grotius then summarizes the argument in the Prolegomena into a claim that Carneades managed to altogether pass over the law of nations (ibp, Prol. 17). He believes that the arguments presented in the Prolegomena show that one ought to further investigate the ‘common law among nations, which is valid alike for war and in war’ (ibp, Prol. 28). This task is then undertaken in the treatise proper, especially its Book ii and iii, while in Book i, Grotius defines the main concepts. Let us now have a close look at his conception of natural law. 2

Natural Law and Other Kinds of Law

Grotius gives the following definition of natural law: The law of nature is a dictate of right reason, which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God. ibp, i.1.10.120

To understand this definition, we must take into consideration what Grotius stated in the preceding part of his exposition. In particular, he stated that law (jus) can be synonymous with statute (lex) if what we mean is ‘a rule (regula) of moral actions imposing obligation to [do] what is right’ (ibp, i.1.9.1).21 Statutes are by their nature binding, which distinguishes them from mere counsels and instructions.22 Obligation imposed on us by law is to act in a moral fashion. In proposing this approach to law, Grotius follows Aristotle, who claimed that the purpose of law is to ordain what is good.23 Natural law is then a rule which binds people to acting in a way that conforms to their rational nature. Grotius describes this rule further as a ‘dictate of right reason’, which indicates that actions which are in conformity with the rational nature contain an element of moral necessity, while those which contradict our natural nature have an 20

‘Ius naturale est dictatum rectae rationis indicans, actui alicui, ex eius convenientia aut disconvenientia cum ipsa natura rationali, inesse moralem turpitudinem aut necessitatem moralem, ac consequenter ab auctore naturae Deo talem actum aut vetari aut praecipi.’ 21 ‘… sit Regula actuum moralium obligans ad id quod rectum est.’ 22 Suárez adopts a similar distinction between law (lex) and counsel (consilium), stating that ‘if one is speaking … of law in the strict sense of the term, only that is law which imposes an obligation of some sort’ (dl, i.1.7). 23 Aristotle, Ethica Nicomachea, x,10; 1180a24.

232 Chotaš element of baseness, moral depravity. According to Grotius, his concept of right reason implies that behavior is ethical if it maintains the natural order (ordo naturalis) and is in agreement with the order of reason (natura rationalis).24 And he explicitly adds that it is only as a consequence of the dictate of right reason that an act that is compatible or incompatible with the rational human nature is either commanded (praecipi) or forbidden by the ‘Author of nature,’ that is, by God. Religious sanction is thus not the source of validity of natural law: it merely complements it. From this, we can derive that although God had created the world, He does not further interfere in it. People are, thanks to their reason, capable of recognizing the obligatoriness of natural law on their own. Grotius does not, however, explain how this ethical insight implies that we ought to follow it in our actions. The difference between the natural law and volitional divine law is then explained as follows: ‘volitional divine law does not enjoin or forbid those things which in themselves and by their own nature are obligatory or not permissible, but by forbidding things it makes them unlawful, and by commanding things it makes them obligatory’ (ibp, i.1.10.2). The source of the obligation is different in the two kinds of law, so that while in natural law, the source of obligation rests in the nature of things themselves, in volitional divine law, the obligation is derived from God’s will.25 On top of that, the natural law applies not only to things outside the sphere of human will but also to many things which are the result of an act of human will. Grotius illustrates this on the example of ownership (dominium), saying that ‘ownership, such as now obtains, was introduced by the will of man; but, once introduced, the law of nature points out (indicat) that it is wrong for me, against your will, to take away that which is subject to your ownership’ (ibp, i.1.10.4). According to Grotius, an important characteristic of the natural law is that it is immutable, even in the sense that it cannot be changed by God. This is because 24 25

Karl Bärthlein, ‘Zur Lehre von der ‘Recta Ratio’ in der Geschichte der Ethik von der Stoa bis Christian Wolff.’ Kant-​Studien, 56/​2 (1965), pp. 125–​155, at p. 125. Grotius aims at bringing the various sources of obligation in harmony, which is why it is difficult to decide whether he is an intellectualist or a voluntarist. Schneewind concludes his discussion of this issue on a resigned note: ‘The general tenor of his [Grotius’s] remarks is opposed to voluntarism, and Grotius’s readers took him to be opposed to it. By the time of On the Law of War and Peace, he knew Suarez’s compromise position [dl ii.6.5–​13] and could have accepted it. The fact that he did not even discuss the matter may indicate that he did not intend to go as far as Suarez went in accepting voluntarism. It may also show that discussion of such theological issues would not help in working out laws of war and peace acceptable to all parties’ (Schneewind, The Invention of Autonomy, p. 74).

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[m]‌easureless as is the power of God, nevertheless it can be said that there are certain things over which that power does not extend; for things of which this is said are spoken only, having no sense corresponding with reality and being mutually contradictory. Just as even God, then, cannot cause that two times two should not make four, so He cannot cause that which is intrinsically evil be not evil. ibp, i.1.10.5

In this passage, Grotius notes that while God as the creator and author of life, imbued things with their natures, this nature now belongs to them inherently and even God’s will cannot change it.26 For instance, the laws of mathematics have such a nature, and the situation is similar for natural law in moral philosophy. Both areas, meanwhile, are an expression of human rational nature.27 Grotius tries to demonstrate the existence of natural law in two ways: Proof a priori consists in demonstrating the necessary agreement or disagreement of anything with a rational and social nature; proof a posteriori in concluding, if not with absolute assurance, at least with every probability, that that is according to the law of nature which is believed to be such among all nations, or among all those that are more advanced in civilization. For an effect that is universal demands a universal cause; and

26 27

This and other passages show that Grotius rejects voluntarism. Sabine believes that Grotius’s references to mathematics are significant in this context because the importance of Grotius’s theory of natural law lies in its methodological aspect: ‘It provided a rational, and what the seventeenth century could regard as a scientific, method for arriving at a body of propositions underlying political arrangements and the provisions of the positive law’ (Sabine, History, p. 362). Tuck goes even further and claims that ‘Grotius’s return to the law of nature as the basis for his discussion led him to … instate mathematics as the methodological model for human sciences –​a development which was to determine more than anything else the character of seventeenth-​century European political thought’ (Tuck, ‘Grotius, Carneades and Hobbes’, p. 51). Tuck’s interpretation was then criticized for instance by Schnepf, who says: ‘Es werden nicht Definitionen und Axiome an den Anfang gestellt und einzelne Sätze mittels gültigen Schlußformen abgeleitet. Ganz im Gegenteil werden zu jedem Thema eine Überfülle von Zitaten aus antiken und mittelalterlichen Texten angeführt … Wer Grotius ein mathematisches Methodenideal unterstellt, wird De jure belli ac pacis als ein in methodischer Hinsicht mißgelungenes Werk ansehen müssen … Nicht das mathematische Erkenntnisideal war für Grotius bestimmend, sondern die methodische Auseinandersetzung mit der Geschichte’ (Schnepf, ‘Naturrecht und Geschichte bei Grotius’, pp. 7–​8). We believe that for Grotius, mathematics is significant not because of its nature but its rationalist character, which is analogical to natural law as Grotius interprets it.

234 Chotaš the cause of such an opinion can hardly be anything else than the feeling which is called the common sense (sensum communis) of mankind. ibp, i.1.12.1

A stricter a priori argument is based on showing that some behaviors (rei alicuius) are in agreement with human rational and social nature, that human nature demands it.28 Such behaviours then become a precept of natural law, for instance the keeping of mutual agreements. A looser a posteriori argument, on the other hand, consists of a generalization of some behaviour about which all people or at least all civilized nations agree that it can be considered part of the natural law. This may pertain to things such as banning sexual intercourse between parents and children. Grotius believes that some behaviors can be generalized because all people share some common sense (sensus communis). Every person has some notion of what is compatible with human social and rational nature, and this commonplace awareness can be viewed as the common sense. Let us now have a look at how Grotius uses the natural law as a basis of the law of nations. He criticizes the distinction between the two as the Romans conceived of it: The distinction, which appears in the books of Roman law, between an unchangeable law common to animals and man, which the Roman legal writers call the law of nature in a more restricted sense, and a law peculiar to man, which they frequently call the law of nations, is of hardly any value. For, strictly speaking, only a being that applies general principles is capable of law. ibp, i.1.11.1

Already in the Prolegomena Grotius showed that one can only speak of natural law among humans, i.e., not among animals. When formulating the law of nations, Grotius takes as his starting point his definition of law as a moral rule or statute. Within thus defined law he then distinguishes between natural law and established or volitional law (ius voluntarium) (ibp, i.1.9.2). 28

Grotius uses the terms a priori and a posteriori in a pre-​Kantian sense. ‘For Kant a post­ eriori means based on experience, and a priori that which precedes all possible experience. Here a priori means from the side of the cause, and a posteriori from the effect’, Leo Strauss, Grotius, On the Law of War and Peace. A course given in the autumn quarter 1964 in the Department of Political Science, University of Chicago. Ed. by Steven Forde. (Chicago: The University of Chicago, 2016), p. 31.

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Volitional law originates in the will and can be either human or divine (ibp, i.1.8), whereas human law can be further divided according to its sphere in municipal law (ius civile) and the law of nations (ius gentium). Municipal law is derived from civil power (potestate civili) and Grotius does not treat it further. The law of nations has a wider application because it ‘is the law which has received its obligatory force from the will of all nations, or of many nations’ (ibp, i.14.1). The source of obligatoriness of the law of nations is in their will, that is, in the will expressed in agreements they conclude among themselves. With reference to its extent, Grotius notes that ‘outside of the sphere of the law of nature, which is also frequently called the law of nations, there is hardly any law common to all nations’. One can prove that such law exists by pointing out that it can be found ‘in unbroken custom and the testimony of those who are skilled in it’ (ibp, i.1.14.2) and it can best be studied by analyzing examples given by ‘the illustrious writers of history.’ According to Grotius –​and contrary to Suárez (dl, ii.20.2) –​the law of nations thus is not derived from natural law. It arises by an independent operation of human will.29 It corresponds to what we would nowadays call positive international law. The other kind of volitional law is divine law. Grotius distinguishes between a universal divine law and divine law peculiar to a single people. The former is law that was given to humankind by God three times: ‘[I]‌mmediately after the creation of man, a second time in the renewal of human kind after the Flood, lastly in the more exalted renewal through Christ’ (ibp, i.1.15.2). These three elements are, according to Grotius, binding to all people inasmuch they are known to them. The Hebrew law, on the other hand, is binding only to Jews, since ‘the binding force of [the Hebraic] law comes from the will of him who makes the law; and it is not possible to discover, from any indication, that God willed that others than Israelites should be bound by that law’ (ibp, i.1.16.7). Grotius then uses all these three kinds of law to outline a system of laws in the second and third book of his treatise, whereby natural law and the law of nations occupy within the system an especially prominent role. Let us now look at how Grotius uses all these three kinds of law in a particular case, namely, to justify a ‘just war’.

29 Nussbaum, A Concise History, p. 104.

236 Chotaš 3

Different Kinds of Law and Explanation When It Is Lawful to Wage War

Grotius justifies the right to wage a just war in several ways. His general concept of war is, meanwhile, rather broad. He defines it as ‘the condition of those contending by force’ (status per vim certantium qua tales sunt) (ibp, i.1.2.1). According to Grotius, to wage war is compatible with natural law (ibp, i.2.1). In making this claim, Grotius appeals to Cicero and the Stoics and their distinction between the first and second principles of nature. War is not incompatible with the first principles of nature, because [t]‌he end and aim of war being the preservation of life and limb, and the keeping or acquiring of things useful to life, war is in perfect accord with those first principles of nature. If in order to achieve these ends it is necessary to use force, no inconsistency with the first principles of nature is involved, since nature has given to each animal strength sufficient for self-​defense and self-​assistance. ibp, i.2.1.4

All animals share the principle of self-​preservation. When preservation of this principle is threatened, the animal, both human and non-​human, has the right to use force to defy the aggressor and to protect its body.30 Nor does war violate the second principle of nature, which is ‘right reason’: Right reason … and the nature of society … do not prohibit all use of force, but only that use of force which is in conflict with society, that is which attempts to take away the rights of another. For society has in view this object, that through community of resource and effort each individual be safeguarded in the possession, of what belongs to him. ibp, i.2.1.5

War is caused by violation of law and its purpose is to renew the rule of law. In other words, war is an abnormal state of affairs and its goal is to restore peace. A just war can be waged on the basis of either of the following three causes: as defense against unexpected attack, in order to recover property, or as a punitive war (ibp, ii.1.2.1–​2). Grotius also demonstrates that war is compatible 30

For more on the relation between ‘self-​preservation’ and ‘desire for society’ (appetitus societatis) in the writings of Grotius, see Hans Blom, ‘Sociability and Hugo Grotius’, History of European Ideas, 41/​5 (2015), pp. 589–​604.

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with natural law using examples from ‘sacred history’ and ‘general agreement’ among all nations. It may seem that in the latter, the natural law transitions into the law of nations, but this is not so. Natural law only justifies the waging of war and serves as the foundation of certain general rules of what is and is not permitted in war, such as ‘ruses and falsehood’ (ibp, iii.1). To wage war is not in contradiction with the law of nations, either. According to Grotius, this is apparent from the ‘histories, and the laws and customs of all peoples’. This holds for wars in general, but ‘a definite formality in the conduct of war was introduced by the law of nations, and … particular effects follow [for] wars waged in accordance with such formality under the law of nations’ (ibp, i.2.4.2). Grotius deals with these ‘formalities’ at length in Book iii of his treatise, listing as examples of acts that contradict the law of nations killing by poison, (ibp, iii.4.15), employment of assassins (ibp, iii.4.18), rape (ibp, iii.4.19), etc. In some instances, the rules of natural law and the law of nations are mutually incompatible. That does not mean, however, that the law of nations is unjust. For instance, no one is a slave by nature (ibp, ii.23.11) but according to the law of nations, all persons captured in war become slaves (ibp, iii.1). That, according to Grotius, applies especially to antiquity and less civilized nations. Among Christians, however, ‘those who are captured in a war which has arisen among themselves do not become slaves so as to be liable to be sold, constrained to labour, und suffer the fate of slaves in other respects’, and a similar law holds among ‘Mohammedans among themselves’ (ibp, iii.7.9). Grotius goes on to demonstrate in some detail that waging a war does not violate the divine volitional law either. First, he responds to a possible objection that natural law is immutable, which could be taken to imply that God cannot posit anything that would be incompatible with it. In answering to this objection, Grotius replies that this applies only to things which are forbidden or commanded by natural law but not to those which are under this law permissible. Actions and behaviors that do not belong to the sphere of natural law but outside it can be forbidden or commanded.31 First, Grotius cites the law which Noah and his descendants received from God. It forbids the spilling of blood among people (Genesis 9:5–​6). The sphere of application of this Noahic law is the same as that of the injunction ‘Thou shalt not kill!’ from the Ten Commandments, as demonstrated by the fact that it does not prevent capital punishment or wars. Grotius explains it as follows:

31

Cf. a similar discussion in Francisco Suárez, De legibus, ii.20.4.

238 Chotaš The latter rule of law then, as well as the former, had in view not so much the ordaining of something new as the declaration and repetition of a rule of the law of nature which had been effaced by degenerate usage. Hence these words are to be taken in a sense which conveys the idea of a moral fault, just as by the word homicide we understand not the slaying of a man in general, but a premeditated murder of an innocent man. What follows in regard to the shedding of blood in turn seems to me to contain not a statement of a bare fact, but a provision of law. ibp, i.2.5.2

Similarly, according to Grotius, the New Testament permits war. Grotius supports this claim by quotations, the most important of which is from Paul’s Epistle to the Romans (Romans 13:4): ‘For he is a minister of God to thee for good. But if thou do that which is evil, be afraid, for He beareth not the sword in vain. For he is a minister of God, an avenger for wrath to him that doeth evil’. Grotius interprets this claim to mean that By the right of the sword through a figure of speech every form of compulsion is understood, as also sometimes in the writings of the jurists; but in such a way, nevertheless, that the right to impose the extreme penalty, that is the actual use of the sword, is not excluded. ibp, i.2.7.2

This may be taken to indicate that Grotius’s considerations upon divine volitional law and its relation to just war bring nothing new in comparison to a parallel justification with respect to the law of nature and the law of nations. Biblical passages can be interpreted as implicit demands of natural law and Grotius seems aware of it. One could thus conclude that Grotius’s layout of the system of laws would function equally well without volitional divine law, although he, a God-​fearing Calvinist, was not ready to take such step. Grotius’s system of laws is also remarkably tolerant of other religions. Unlike Suárez, for instance, Grotius hardly ever mentions heretics.32

32

The sole exception is one passage where Grotius speaks about Augustine’s conception of heretics (ibp, ii.20.48.3).

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239

Conclusion

Several conclusions seem to follow from these considerations. Grotius bases his natural law and the law of nations on the concept of statute (lex), which is valid independent of God’s will. It can, however, be its expression. And while natural law is an expression of human nature, which is characterized by rationality, the law of nations expresses the will of nations. Both of these kinds of law are valid independent of God, in spite of the fact that He is the Maker of the World. Their obligatory nature is therefore also independent of God, which is why they can become the foundation of various systems of municipal law and even of international law, which would apply to all nations of the world, that is, to humanity as a whole. Grotius’s intention in the treatise is not, however, to create a system of secular law. His aim is to bring the various kinds of law into harmony, to demonstrate how they fit together. We saw that according to Grotius, what applies based on natural law (or even the law of nations) also applies according to the volitional divine law. Grotius’s goal is to show that if we understand the various kinds of law correctly, they do not contradict but rather complement each other. It is not Grotius’s fault that some of his successors, such as Barbeyrac and Pufendorf, misread his intentions.33 One can view Grotius as the father of modern natural law only in retrospect, that is, from the perspective of how he was interpreted by his followers and based on the motifs from his work they later developed. It is quite apparent that in the aftermath of the Thirty Years’ War, the idea of religious tolerance had suffered a grave defeat in Europe. Answer to the question whether Grotius bases his concept of natural law on secular or theological foundations thus depends on the perspective from which we pose this question: Grotius builds natural law on both foundations. His followers, who no longer viewed religion as an integral part of their view of the world, interpreted his writings as arguing for secular foundations of natural law. For us, however, the comprehensive approach to a system of international law and the idea of religious tolerance are the main reasons why Grotius’s writings should be studied in our times.34

33 Schneewind, The Invention of Autonomy, p. 75. 34 I would like to thank Marina Barabas, Rudolf Kučera, and Hans Blom for insightful and inspiring discussions about Grotius.

240 Chotaš

Select Bibliography



Primary Literature



Secondary Literature

dl =​Suárez, Francisco. A Treatise on Laws and God the Lawgiver (De legibus ac Deo legislatore). In Selections from Three Works. Translated by Gwladys Williams, Ammi Brown, and John Waldron, Oxford: Clarendon Press, 1944: 3–​725 (In citing dl, I list the book, chapter, and section of the translation). en =​Aristotle. The Nicomachean Ethics. Translated by David Ross. Oxford: Oxford University Press, 2009 (In citing the en, I list the book, chapter, and Bekker numbers). ibp =​Grotius, Hugo. De Jure Belli ad Pacis Libri Tres (On the Law of War and Peace). Vol. 2. Translated by Francis W. Kelsey, Arthur E. R. Boak, Henry A. Sanders, Jesse S. Reeves, and Herbert F. Wright, Oxford: Clarendon Press, 1925 (In citing ibp, I list the book, chapter, section, and paragraph of the translation, in this order; the Prolegomena are quoted by paragraph of the translation).

Bärthlein, Karl, ‘Zur Lehre von der ‘Recta Ratio’ in der Geschichte der Ethik von der Stoa bis Christian Wolff.’ Kant-​Studien, 56/​2 (1965), pp. 125–​155. doi: 10.1515/​ kant.1965.56.2.125. Besselink, Leonard F. M., Keeping faith; A Study of Grotius’ Doctrine of Natural Law. Florence: European University Institute (PhD thesis) 1988. doi: 10.2870/​93254. Blom, Hans, ´Sociability and Hugo Grotius.’ History of European Ideas, 41/​5 (2015), pp. 589–​604. Haakonssen, Knud, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge University Press, 1996. St. Leger, James, The ‘Etiamsi daremus’ of Hugo Grotius: A Study in the Origins of International Law, Rome: Pontifico Ateneo Angelicum, 1962. Nussbaum, Arthur, A Concise History of the Law of Nations. New York: Macmillan, 1947. Sabine, George H., A History of Political Theory. London: George G. Harrap & Co., 1937. Schneewind, Jerome, The Invention of Autonomy: A History of Modern Moral Philosophy, Cambridge: Cambridge University Press, 1998. Schnepf, Robert, ´Naturrecht und Geschichte bei Grotius. Ein methodologisches Problem rechtsphilosophischer Begründung’, Zeitschrift für Neuere Rechtsgeschichte, 20/​1–​2 (1998), pp. 1–​14. Straumann, Benjamin, Roman Law in the State of Nature: The Classical Foundations of Hugo Grotius’ Natural Law. Cambridge: Cambridge University Press, 2015. Strauss, Leo, Grotius, On the Law of War and Peace. A course given in the autumn quarter 1964 in the Department of Political Science, University of Chicago. Edited by

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Steven Forde. Chicago: The University of Chicago, 2016. https://​leost​raus​scen​ter. uchic​ago.edu/​grot​ius-​on-​the-​law-​of-​war-​and-​peace-​aut​umn-​1964/​. Stumpf, Christoph A., The Grotian Theology of International Law: Hugo Grotius and the Moral Foundations of International Relations. Berlin–​New York: De Gruyter, 2006. Tierney, Brian, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law 1150–​1625. Grand Rapids: Eerdmans, 1997. Tuck, Richard, ‘Grotius, Carneades and Hobbes’, Grotiana, 4 (1983), pp. 43–​62. Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant. Oxford: Oxford University Press, 1999. Vollenhoven, Cornelis van, The Framework of Grotius’s Book De Iure Belli ac Pacis, Amsterdam: Noord-​Hollandsche Uitgeversmaatschappij, 1931. Welzel, Hans, Naturrecht und materiale Gerechtigkeit (1951). 3rd edn. Göttingen: Vandenhoeck & Ruprecht, 1980.

­c hapter 11

Pufendorf’s Lutheranism Thomas Behme Pufendorf’s natural law doctrine aimed at developing a universal natural law that might be known by reason alone to people of different culture and independent of their religion.1 Nonetheless Pufendorf remained a faithful Lutheran who thoroughly reflected on the relation of his natural law science to his belief. In defending his writings against the attacks of Lutheran scholastics in his Eris Scandica he did sometimes take recourse to Luther’s works in order to prove the Lutheran orthodoxy of his natural law and the heterodoxy of his critics.2 Was that for tactical reasons only, or does it express an essential affinity of Pufendorfian natural law and Lutheranism? The aim of this chapter is to reconsider the relation of his natural law doctrine to his Lutheran belief. That requires an enquiry both of his natural law writings and of his writings on proper theology, in particular the De Habitu Religionis Christianae ad Vitam Civilem of 1687 and the Jus feciale divinum sive de Consensu et Dissensu Protestantium of 1695. A well-​known theme among scholars is Pufendorf’s demarcation of natural law and moral theology in the Preface of his abridgement on natural law, the De officio Hominis et Civis juxta Legem Naturalem, that established his fame 1 See e. g. Samuel Pufendorf, Eris Scandica, Gesammelte Werke 5, ed. by Fiammetta Palladini (Berlin: Akademie Verlag, 2002), Specimen controversiarum, cap. I. De Origine et Progressu Disciplinae Juris Naturalis, § 7: ‘Quid causarum me impulerit, ut et ipse circa excolendum jus naturale operam navarem, in praefatione operis mei satis exposui. In quo id praecipue me egisse adparet, ut quantum ingenio adsequi possem, omnia, quae ad disciplinam juris natu­ ralis pertinent, complecterer, et in ordinem non hiulcum aut salebrosum digererem. Tum ut omnes controversias theologicas ab eadem sequestrarem, ipsamque ad captum universi generis humani, quod circa religionem in diversissimas opiniones discessit, accomodarem’. 2 Two examples are treated at the end of this chapter. See below p. 259, fn 116 and p. 261, fn 121. A further instance is found in the Commentatio super invenusto pullo: Pufendorf there cites Luther’s claim of a reformation of the German universities reducing the presence of Aristotle and of the scholastics in the curriculum as an example ‘quod quis non magnifice de philosophia Aristotelis sentire, et haut eo secius γνησίως Lutheranus esse queat’ (Ibid., Commentatio super invenusto pullo, pp. 259‒292, esp. pp. 272f., referring to Luther, An den christlichen Adel deutscher Nation, quoted after D. Martin Luthers Werke. kritische Gesamtausgabe (Weimar: Böhlau, 1883–​1929), [hereafter: wa] vol. 6, pp. 404‒469, esp. pp. 457f.; Pufendorf cites from the Altenburg-​edition, vol. i, p. 505).

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as a seculariser of law: While natural law is discerned by ‘reason left to itself [ratio sibi relicta]’, aims at the promotion of sociability and the secular welfare and has as its object the external actions of man, moral theology is based on an interpretation of the holy scriptures, aims at eternal salvation and has as its object the external as well as the internal aspect of human actions, that have to meet in both respects the will of the deity as delivered in the holy scriptures.3 But that demarcation does only offer a very rough outline of the intricate relation of natural law and theology in Pufendorf’s writings. Thus his natural law writings do not only deal with external actions and perfect duties of law, but also with imperfect duties of humanity and of self-​perfection.4 The latter form part of the duty of man towards oneself that consists in a duty towards his soul and a duty towards his body. The duty towards the soul requires a ‘cultivation of the mind [cultura animi]’ tending to a full development of one’s endowments, but in particular to regulating ‘the impulses of the mind … by the rule of right reason’ in order to secure the ‘complete fulfilment of the duty of man’.5 Therefore the mind must be imbued with the belief in ‘God as the Creator and Governor of this universe … from whom all other things derive their origin and the principle of their motion’, and who ‘exercises His control over the entire

3 Samuel Pufendorf, De Officio Hominis et Civis juxta Legem Naturalem Libri Duo, Gesammelte Werke 2, ed. by Gerald Hartung (Berlin: Akademie Verlag, 1997), Lectori Benevolo Salutem, p. 5f. The extent and significance of that separation is controversially discussed in the literature on Pufendorf: While Hans Welzel (Die Naturrechtslehre Samuel Pufendorfs (Berlin: De Gruyter, 1958), p. 54f.; Naturrecht und materiale Gerechtigkeit (Göttingen: Vandenhoeck & Ruprecht, 41984), p. 137) interprets it as a separation of law and morality, Horst Denzer (‘Ethik und Recht im deutschen Naturrecht der zweiten Hälfte des 17. Jahrhunderts’, in Recht und Ethik. Zum Problem ihrer Begründung im 19. Jahrhundert, ed. by Jürgen Blühdorn and Joachim Ritter (Frankfurt a. M.: Klostermann, 1970), pp. 103‒111) and Simone Zurbuchen (Naturrecht und natürliche Religion. Zur Geschichte des Toleranzbegriffes von Samuel Pufendorf bis Jean Jacques Rousseau, Epistemata. Reihe Philosophie 87 (Würzburg: Königshausen & Neumann, 1991), pp. 33‒38) only see in it the epistemological distinction of natural law and scriptural theology, while the matters of individual ethics and interpersonal law are indiscriminately comprised within the circuit of the natural law discipline. For Denzer the latter serves as ‘ethica universalis’ and as fundamental discipline of ethics, politics and jurisprudence (Moralphilosophie und Naturrecht bei Samuel Pufendorf. Eine geistes-​und wissenschaftsgeschichtliche Untersuchung zur Geburt des Naturrechts aus der praktischen Philosophie. Münchner Studien zur Politik 22 (München: Beck, 1972), pp. 244f.) 4 See also Zurbuchen, Naturrecht und natürliche Religion, p. 38, emphasizing a lack of discrimination between legal obligation and moral virtue in the systematic structure of natural law. 5 Pufendorf, De Jure Naturae et Gentium, Gesammelte Werke 4, ed. by Frank Böhling (Berlin: Akademie Verlag, 1998), i.4.2. English citations follow to the translation by Charles Henry Oldfather and William Abbott Oldfather, Classics of International Law, Carnegie Endowment for International Peace (Oxford: Clarendon Press, 1934).

244 Behme universe’ and ‘over mankind’.6 But all beliefs that are prone to destruct ‘true religion, good morals and human society’ have to be eradicated: To these beliefs do not only belong atheism and Epicureanism, but also the doctrine ‘of the unchangeable sequence of all things and actions, even those of men’, like the Stoic fate or the astrological necessity, that negates the imputativity of human actions.7 These duties of man toward God, or natural religion, that form part of the duty of man towards oneself in the De Jure Naturae et Gentium, form a separate group of duties preceding the duties towards oneself and towards other men in the abridgement De Officio.8 They comprise the duties to have right views of God and to conform the actions to his will. To the first group belong the duties to believe that He exists, that He is the creator of this universe, that He ‘governs the whole World, and particularly Mankind’ and that ‘no Attribute can belong to God, which implies any manner of Imperfection’.9 The second group of duties deals with the ‘Internal’ and ‘External Worship of God’, that is, to honor and to obey him.10 The effect of this natural religion ‒ like that of natural law ‒ is limited to the sphere of this life and is of no avail to procure eternal salvation.11 Nonetheless it has an important function in Pufendorf’s natural law, because on it depends its prescriptive force, while its contents has to be learned through a ‘careful consideration of the nature, condition, and desires of man himself’.12 This consideration leads to sociability as an exigency of human nature to overcome its ‘imbecillitas’, but also as the place to put its splendid faculties reason and will into practice.13 But to conceive ‘socialitas’ as a law in the sense of a decree of a superior obliging one that is subject to him presupposes the existence of God and his providence: ‘to give these Dictates of Reason the Force and Authority of Laws, there is a necessity of supposing that there is a God, and that his Wise Providence oversees and governs the whole

6 7 8

9 10 11 12 13

Ibid., i.4.3. Ibid., i.4.4. De officio, i.4. English citations follow to the translation by Andrew Tooke in the modern edition by Ian Hunter and David Saunders: Pufendorf, The Whole Duty of Man, According to the Law of Nature. Natural Law and Enlightenment Classics (Indianapolis: Liberty Fund 2003). Ibid., i.4.2‒5. Ibid., i.4.6f. Ibid., i.4.8. De jure naturae, ii.3.14. On that double aspect of sociability as a means to overcome man’s imbecillitas and as the destination of his rational and social nature, see Thomas Behme, ‘Pufendorf’s Doctrine of Sovereignty and its Natural Law Foundations’, in Natural Law and Civil Sovereignty. Moral Right and State Authority in Early Modern Political Thought, ed. by Ian Hunter and David Saunders (Basingstoke: Palgrave Macmillan, 2002), pp. 43‒58, esp. pp. 45f.

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World, and in a particular manner the Lives and the Affairs of Mankind’.14 In this way all natural law obligations including those hypothetical precepts that presuppose a human pact or institution are to be seen as divine offices. This also covers the civil obligation. For it is held that states also and supreme sovereignty came from God as the author of natural law. For not only are such things as God established by His intervention immediately, and without any deed of men, due to Him, but also what men have contrived under the guidance of sound reason, with due regard for times and places, in order that they might fulfil the obligation enjoined upon them by God.15 Despite its central importance as the prescriptive foundation of his natural law Pufendorf’s natural theology does not meet his own methodological premises of natural law as demonstrative science modelled after the mathematical disciplines: That would have required a natural theology more geometrico with a demonstrative proof of divine existence in the manner done by his Jena teacher Erhard Weigel.16 Instead Pufendorf refers to the authority of ‘learned and wise men’ who have ‘most plainly demonstrated’ the divine existence.17 He also cites common-​sense arguments as ‘all Mankind having been perpetually … possest of this persuasion’,18 though he had on other places judged common sense (‘in quod omnes et singulae consentiant’) as a too ‘slippery [lubrica]’ 14 15 16

17 18

De jure naturae, ii.3.19: ‘… ut ista rationis dictamina obtineant vim legum, necessum sit praesupponere, Deum esse, & per ipsius providentiam tum omnia, tum imprimis genus humanum gubernari’. Ibid., vii.3.2. In some of his writings, especially in the Wienerischer Tugend-​Spiegel of 1687 and the Philosophia Mathematica Theologia Naturalis Solida of 1693 Erhard Weigel developed a Mathematical proof of the existence of God. That proof which is based on two definitions, two observations and four axioms, starts from the experience of a permanent temporal flux of all things in this world (Obs. ii), that Weigel conceives as a change of existence, thus as annihilation and recreation at each moment. Because a Nihil can have no effects (Ax. i) and cause and effect have to exist at the same time (Ax. ii), nothing in the world can affect that change. Thus there must exist outside the world a permanent being that is exempt from that change of existence, and that creates (and keeps up) the world anew at each instance (in other words, by continuous creation). That proof aroused the interest of Leibniz and was critically discussed in his correspondence with Weigel, Gottfried Klinger and Veit Ludwig von Seckendorff. For the details see Behme’s introduction to his critical edition of the Philosophia Mathematica Theologia Naturalis Solida. Stuttgart-​Bad Cannstatt : Frommann-​Holzboog, 2013, vol. 1, pp. lx-​lxx. The Whole Duty of Man, i.4.1. Ibid.

246 Behme foundation to base ‘universal law [ius universale]’ on.19 Even more insufficient is his presentation of natural theology as duties commanding right views of God: Because their prescriptive force ‒ like that of all other natural law obligations ‒ is based on divine command, the whole effort to base the obligatory force of natural law on natural theology becomes circular. These flaws in his argumentation might be explained by the limited scope Pufendorf allows himself for the use of natural religion within the natural law discipline, namely to consider its suitability as a bond of human society (‘prout humanae societatis vinculum, et velut coagulum est’), while he refers it to first philosophy as its proper place.20 Its use within natural law is limited to considering divine providence as a necessary presupposition of the legal character of man’s dictates of reason.21 In addition, natural religion has a pedagogic function, which he expressly alleges as reason for having inserted a chapter on that subject into the abridgement De Officio,22 that was designed to imbue ‘the minds, of Youth especially … with … Moral Learning’,23 and that was later used as a textbook in grammar schools.24 Finally, his natural law and the natural theology are addressed to people who ‒ as members of one of the Christian churches ‒ already possess the belief in God the Creator and Lawgiver and need no longer to be convinced by philosophical arguments:

19 Letter Pufendorf an Johan Christian von Boineburg, Heidelberg, 13.01.1663, in Idem, Briefwechsel, Gesammelte Werke 1, ed. by Detlef Döring (Berlin: Akademie Verlag, 1996), pp. 24‒29, esp. p. 26. 20 Eris Scandica, ed. by Palladini, Specimen Controversiarum, § 25 (p. 181): ‘Et eam ob rationem caput de Religione Naturali in eo libro (scil. De Jure Naturae et Gentium) nuspiam extat. Hoc quippe consectarium est doctrinae naturalis de Deo; quam alii ad philosophiam primam referunt, alii peculiari disciplina sub vocabulo Theologiae naturalis adornant, eoque nativam velut sedem in disciplina Juris naturalis non sortitur … Quod eo minus heterogeneum debet videri in ea disciplina, ubi caetera omnia ex socialitate deducuntur; quia non solum lex naturalis à Deo vim atque autoritatem legis nanciscitur, sed et quia Religio Naturalis in hac disciplina, prout ea à nobis adornata fuit, eo tantum modo considerari potest, prout humanae societatis vinculum, et velut coagulum est’. 21 See p. 244f. 22 Eris Scandica, ed. by Palladini, Specimen Controversiarum, § 25 (p. 181) ‘Sed cum postea in usum juventutis officia hominis et civis juxta legem naturalem in compendium redigenda forent, caput de Religione Naturali ex illa sive Theologia Naturali, sive Philosophia Prima mutuo sumsi, et in eum libellum transtuli’. 23 The Whole Duty of Man, The Author’s Preface, p. 15. 24 Hans Thieme, Das Naturrecht und die europäische Privatrechtsgeschichte (Basel: Helbing & Lichtenhahn, 1947), p. 14.

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That there is a Supream Being … has been generally receiv’d, not only among Christians, but also by most of the Pagan Philosophers, that to pretend to demonstrate it here, would be Superfluous, and perhaps might be taken as done in prejudice of the judicious Reader; since, scarce any body, that is not beyond his right Wits, can be supposed, now a days, to make the least Doubt of the Verity of this Assertion.25 The relation of the Christian church to the state as presented in de Habitu Religionis Christianae ad Vitam Civilem does at first glance perfectly suit to Pufendorf’s demarcation of natural law and moral theology. It starts from an original independence of both spheres that is introduced by natural law arguments as well as by scriptural exegesis: ‘Both in Natural and Revealed Religion … every body is obliged to worship God in his own Person’ and cannot transfer that duty to someone else. While the care of the body might be committed to the management of others who are held responsible for it, the care of the soul can never be so entirely transferred to someone else as to make him alone accountable.26 This is also proven from the bible by citing Paul’s ‘Every one of us shall give Account of himself to God’.27 For that reason the exercise of religion does not require a union with others28 ‒ in contrast to the care of the body, that necessitates forming states and establishing sovereigns. While force is an essential part of sovereign power and is sufficient for the repression of injuries, it is entirely useless in bringing about religious convictions: neither those of natural religion that might only be introduced by convincing reasons nor those of revealed religion that can only be implanted with the assistance of divine grace.29 Thus religion does not form object of the political contract while the gospel ‒ on the other hand ‒ does not contain any mission to form a state or to introduce new political principles.30 Christ and the Apostles had no worldly ambitions but only performed the office of a teacher showing us ‘the way of our Salvation, in such a manner, as not to have quite debarr’d us 25

26 27 28 29 30

De Habitu Religionis Christianae ad Vitam Civilem. Gesammelte Werke 6, ed. by Wilhelm Schmidt-​Biggemann (Berlin: Akademie Verlag, 2016), § 1. English citations follow the translation of Jodocus Crull in the modern edition by Simone Zurbuchen: Of the Nature and Qualification of Christian Religion, in Reference to Civil Society. Natural Law and Enlightenment Classics. (Indianapolis: Liberty Fund, 2002). Ibid., § 2. Romans 14:12. Of the Nature and Qualification, § 2. Ibid., §. 3. De Concordia Verae Politicae cum Religione Christiana, § 3, in Dissertationes academicae selectiores. (Upsaliae, 1677), pp. 428‒458.

248 Behme from our own choise; so, that if we will be refractory, we may prove the cause of our own Destruction’.31 The church as a ‘Union of the Believers under Christ their King’ is united into a mystical body not by sovereign power but by the word of Christ, in love, and by ‘the unity of the spirit in the bond of peace’.32 This not only pertains to the invisible church but also to the (true) church on earth, that only knows the difference of auditors and teachers.33 While the former have submitted their will but to God and read the Scripture on their own behalf,34 the role of the latter does not warrant any spiritual jurisdiction. Such a power is neither contained in the Keys of the Kingdom of Heaven, that do not mean anything more than the apostle’s office to teach the ‘Doctrine … of the remission of Sins through our Faith in Christ’;35 nor is it exerted in the Power of Excommunication that originally meant anything else than the freedom of the first Christians to avoid familiar conversation with wicked and impious people.36 Thus the original constitution of the church was that of a democratic community exercising the investment of ministers and teachers and the passing of church statutes in its own right.37 This is also adumbrated by the Greek word ecclesia that originally meant a democratic assembly of citizens in a Greek city-​state.38 Because of the non-​political nature of the Christian religion its ends and methods do not contradict those of a ‘true politics’ that is ‘deduced from its genuine principles’.39 By converting to Christianity no one is released from his civil rights, duties and offices, but remains in his former state.40 But apart from that negative compatibility there is also a positive congruence that is grounded in the common origin of both spheres: The same God who has sent his son into the world to redeem fallen mankind did by his authorship of natural law also sanction the means leading to the end of a peaceful sociality as keeping pacts and establishing supreme authorities.41 Apart from natural law, the divine sanction of civil authority is also proven from the bible that does not contain 31 32 33 34 35 36 37 38 39 40 41

Of the Nature and Qualification, § 17, p. 33. Ibid., §§ 30, 34; Eph. 4:3‒5. Ibid, § 32. Ibid., § 33. Ibid., § 25, p. 49. Ibid., § 27. Ibid., § 39. Ibid., § 30. De concordia, § 1. De habitu, §§ xxx, xl, xli. De concordia, § 2.

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an explicit political theory but acknowledges the fact of civil authority and its rights.42 In addition to that Christian virtues like charity, patience and humility contribute to a peaceful sociability in a way that reaches far beyond the exigencies of public tranquillity.43 The legal position of the church in the state resulting from the ‘negative’ compatibility of Christianity and politics is that of a private society founded for carrying on a certain business (‘collegium’, societas’).44 It is subject only to the jurisdiction the sovereign exercises over all subordinate collegia, in order to ensure their non-​interference with the rights of sovereign power.45 This includes a right of inspection, but even of reformation in cases where the clergy has usurped parts of the sovereign power as, for example, the matrimonial judicature.46 The members of the church ‒ like all citizens ‒ are also subject to the sovereign’s right in examining doctrines47 that aims at ensuing the natural religion as ‘the Foundation stone of Probity’ and of the compliance with those pacts which are ‘the original Foundation of all Commonwealths’.48 Because ‘the actions of all men depend upon their own individual opinions’, the sovereign will have to take care by ‘external means to make those opinions and judgements, so far as possible, agree, or to prevent at least their differences from disturbing the state’.49 This also includes the right to enhance the open profession of ‘such beliefs that agree with the end and use of states’ as ‘the Christian faith … in so far as it is pure, purged of the false inventions of men, and disseminated through the preaching and practice of pious and prudent ministers’.50 As long as such churches do not interfere with the rights of sovereign power and do not disturb the public peace they enjoy autonomy not only in doctrinal and ceremonial matters but also in the investment and sustenance of ministers, and the passing of church statutes.51

42 43

44 45 46 47 48 49 50 51

Ibid. Ibid., §§ 7f.; Jus feciale divinum, Gesammelte Werke 9, ed. by Detlef Döring (Berlin: Akademie Verlag, 2004), § 56. English citations follow to the translation of Theophilus Dorrington in the modern edition by Simone Zurbuchen: The Divine Feudal Law: Or, Covenants with Mankind, Represented. Natural Law and Enlightenment Classics (Indianapolis: Liberty Fund, 2002). De habitu, § 39. De jure naturae, vii.2.22. Of the Nature and Qualification, §§ 44, 53. De jure naturae, vii.4.8. Of the Nature and Qualification, §§ 5, 7. De jure naturae, vii.4.8. Ibid. and vii.9.4. Of the Nature and Qualification, §§ 7, 19, 33, 39.

250 Behme But when the ruler becomes Christian, the conjunctio officiorum of Christian and ruler grants him a particular suitability and right for certain functions: These functions do not only include the protection of the church from persecution, but also the material sustenance of ministers, church-​buildings and schools, that might be undertaken ‘by Christian Princes … with less difficulty’ because they have ‘the management of the Publick Revenues in their hands’.52 It also includes a prerogative vote in the constitution of ministers and their supervision by royal inspectors or by a consistory, the church discipline including the sovereign’s approval of excommunications, the church legislation and the reform of statutes that concern ‘the outward form of the Church-​Government [ea, quae religionem circumstant]’.53 Insofar as these rights cannot be deduced from the nature of sovereignty or from ‘the true Genius of the Christian Religion’ they presuppose a consensual right transfer by the church.54 As we know from Pufendorf in other instances such a consent might be a tacit one that is ‘gathered from the nature of the business and other circumstances’.55 As far as these rights are not extended to the inner core of ‘ministerium ecclesiae’ as teaching the gospel or administering the sacraments,56 and if ‒ in addition to the approved church of the sovereign ‒ different confessions are tolerated,57 such a state might be compatible with Pufendorf’s view of religious belief as an inner act of the spirit that spurns violent means. But as far as the sovereign’s right in resolving religious controversies is concerned Pufendorf grants him a right that exceeds these boundaries: He might not only call together synods, force refusing parties to take part in it and ‒ when a compromise is reached ‒ enforce it by law.58 But he might also induce the leading theologians of his country to compose a public form of religion that ought to be professed by all and in particular by the ministry. If anyone publicly contradicts that public form his reasons have to be examined; and when he is convicted of his error, he might be silenced and, if counteracting, be banished from the country.59 52 53 54

55 56 57 58 59

Ibid., § 43. Ibid., §§ 45, 47f. De habitu, § 40: ‘Ex quo colligitur, si qua potestas aut quod jus summis imperantibus circa Ecclesiam & sacra Christiana asserendum sit, id esse deducendum vel ex genuina indole summi imperii civilis, vel ex indole ipsius religionis Christianae, vel ex ultronea delatione ipsius Ecclesiae’. De jure naturae, iii.6.2. Of the Nature and Qualification, § 48. Ibid., §§ 49, 50. Ibid., § 46. Ibid., § 49. As Horst Rabe, Naturrecht und Kirche bei Samuel von Pufendorf (Tübingen: Fabian Verlag, 1958), p. 76, points out such a coercive authority of the sovereign in composing

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But ‒ on the other hand ‒ if subjects ‘by the Grace of God, and the Light of his holy Spirit have attained the true Knowledge’ of Religion, while their sovereign and the whole clergy maintain ‘their error’, the sovereign would sin if troubling or banishing a dissenting subject that has not yet been convicted of their error.60 For ‘a Christian, in Matters of Faith’ has ‘to rely upon his Sovereign or the Clergy … no farther than their Doctrine is congruous with the holy Scripture’, while ‒ on the other hand ‒ ‘the true pure Doctrine of the Gospel’ does not contain any ‘Principles dangerous or prejudicial to the Government’.61 Thus the extent of religious freedom and of the rights of sovereigns in church matters varies according as true religion is on the side of the subjects or of the sovereign. That question of religious truth becomes entirely preponderant in Pufendorf’s posthumous publication Jus feciale sive de Consensu et Dissensu Protestantium. The theme of tolerance which was of central importance in De Habitu is here quickly relativized as ‘a Truce in War, which suspends … the actual Hostilities’ without doing away with ‘the State and Cause of the War’.62 The latter might only be accomplished by conciliation that promises success especially in cases where dissension is about mere Opinions or Principles (‘controversiae circa dogmata’). Controversies of this sort might be entirely decided ‘when there is an infallible Rule from which a Judgment may be made, such as the Holy Scripture is in Controversies of Divinity’.63 Pufendorf here follows the Lutheran hermeneutic principle according to which Scripture is perspicuous and self-​explaining in matters that concern salvation.64 He is confident ‘that the Genuine Sense of Scripture be perfectly found out, … if due Means and Helps of interpreting them [legitima interpretationis adminicula] be made use of’.65 As he explains elsewhere, these ‘Means and Helps’

60 61 62 63 64

65

religious controversies cannot result from the consensual right transfer by the church mentioned above because the church does not own any coercive authority according to Pufendorf. Of the Nature and Qualification, §. 54. Ibid. The Divine Feudal Law, § 4. Ibid., § 9. See, for example, Johann Gerhard, Loci Theologici cum pro adstruenda Veritate tum pro destruenda quorumvis contradicentium Falsitate per Theses nervose solide et copiose explicati, ed. by Eduard Preuss. Vol. i, (Berlin: Schlawitz, 1863), Locus Primus de Scriptura Sacra, c. xx, Nr. 414, p. 182b: ‘Perspicuam esse Scripturam nostrae ecclesiae unanimi consensu affirmant, Romanense vero negant. Ut autem quaestionis status sit illustrior, observandum est, … non esse quaestionem, an quaedam in Scripturis sint obscurius dicta et intellectu difficiliora, sed an dogmata fidei, quorum notitia omnibus ad salutem necessaria est, perspicue in ea sint proposita’. The Divine Feudal Law, § 9.

252 Behme agree with those applied to ‘finding out the genuine Sense of other Authors; viz. … a true Knowledge of the Tongue, and a diligent search into the nature and whole frame of the Christian Religion, … by duly comparing the Articles of Faith, and observing their Analogy and Connexion’. Besides this, it requires ‘a natural good Judgment’, and not to be ‘prepossessed with Prejudice, private Interest, or Passion’.66 But controversies are irreconcilable if they are about worldly advantages such as emoluments and power as those of the protestant churches in relation to the Roman Catholic church.67 As to the reconciliation of differing ‘Opinions or Principles’ Pufendorf makes a distinction between a ‘perfect conciliation’ in the whole system of faith, that he rejects as impossible, and ‘a Reconcilement mixed with a Toleration [conciliatio tolerantiae mixta]’: The latter favors ‘an Agreement in a solid, sufficient, and adequate, Foundation of Faith’ or in those Articles of Faith which are absolutely necessary to salvation, while in relation to other opinions Toleration should be granted.68 In the latter way Pufendorf hoped to bring about a conciliation of the Lutheran Church and the Reformed Church.69 As to ‘the grand Question of all, what Questions concern the Foundation of Faith’ he suggested to ‘take those Principles about which there is an Agreement on both Sides, and endeavour to compose of them a full and compleat System of Theology’.70 That system should also conform to the mathematical model of an ‘exact science [in formam justae artis]’, that demonstrates all dogmas that are necessary, sufficient and adequate for salvation starting from definitions, postulates and axioms.71 But all those controverted articles that fall out of that ‘due chain of the Faith [catena fidei]’ are ‘to be reckon’d not reaching the Foundation of the Faith, and therefore they should not be sufficient to break Communion and Concord’.72 Among the ‘Praesupposita; aut Postulata’, which ‘are easily admitted by both Parties without a laborious Proof’ Pufendorf sets in the first place the insufficiency of natural theology for the ‘due Worship and Acknowledgment of God’. Man, indeed, may by natural reason not only know the existence, excellency and greatness of God, but also ‘that Mankind are the particular Concern and Care of that Supream Power’. He may also gather from the works of creation,

66 67 68 69 70 71 72

Of the Nature and Qualification, § 35. The Divine Feudal Law, §§ 8, 12. Ibid., § 7. Ibid., § 16. Ibid., § 15. See Letter Pufendorf an Esaias Pufendorf, Stockholm, 24.2.1681, in Briefwechsel, pp. 125‒127, esp. p. 126. The Divine Feudal Law, § 15.

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that God is ‘in the highest manner Perfect and Eminent, and so to be worthy of his Veneration and Love … But … from these Speculations alone, … Mankind cannot gather what Acknowledgment and Veneration God requires from him, nor in what Signs and Actions it ought to consist’.73 Hence comes the requirement of a revelation in order to give man ‘due Instruction concerning the right Performance’ of divine worship74 and ‒ in the third place ‒ the acknowledgement of holy scripture as ‘Treasury [promptuarium] of these Revelations’.75 From these presuppositions Pufendorf concludes that ‘in true Religion there is included a Covenant [Verae Religioni inest pactum]’: When therefore God discovers how he will be worshipp’d by Man, and Man takes it upon him to perform that Worship, then there is a Consent [consensio] of the Divine Will, and the Will of Man, and Man is said to have Faith in God and Religion, which before that Consent he had not.76 Although God might have enjoined religious worship by bare command and might have bound man by creating him it pleased him ‘to govern Men by Motives and Inducements, that they may willingly consent to his Religion, and take it upon them or[sic!] themselves’.77 That position suits well the anthropology of Pufendorf’s writings on natural law and his concept of human or moral action, that he defines as a voluntary action in social life ‘regarded under the imputation of its effects’: We call voluntary actions those actions placed within the power of man, which depend upon the will, as upon a free cause, in such wise that, without its decision setting forth from the same man's actions as elicited by previous cognition of the intellect, they would not come to pass; and,

73 74

75 76 77

Ibid., § 17. Ibid., § 18. According to Pufendorf it seems altogether ‘repugnant to Reason that there should be a Being worthy of Divine Honours and Acknowledgments, and such Beings also as are capable of paying them, and as have besides abundant Reason and Cause to pay such to that excellent Being, and yet that no Intimation or Instruction should be given them for the right Performance of that Acknowledgment and Honour’. Thus revelation does not only exist, but necessarily follows from the nature of God and Man and their mutual relation. See also Rabe, Naturrecht und Kirche, p. 19 who compares that idea of ‘Vernünftigkeit der Offenbarung’ to scholastic views of natural theology. The Divine Feudal Law, § 19. Ibid., § 20. Ibid.

254 Behme indeed, according as they are regarded not in their natural condition, but in so far as they come to pass from a decision of the will.78 That ‘freedom of choice [ratio proaeretica]’ or ‘liberty’ adds to ‘spontaneity … an indifference as to the exercise of its acts, so that the will is under no necessity to exert one of its acts’, but ‘may choose whatever action it please, although chance may incline it more to one than to another’.79 That also includes the ability to make a choice against one’s own inclination. That anthropological liberty which is named the ‘fundamental element’ of a moral action in Pufendorf’s Elements80 is a prerequisite for the imputation of human actions and of man’s ability to bear obligations and rights at all. It continues to underlie the natural liberty in the natural state, but also the civil state and the civil obligation:81 The latter is based in the consent of agents, who are equal at least insofar as they are morally free and responsible agents.82 As pacts secure the continuity of human liberty in the political state the covenant fixes ‘a dimension of human liberty in the … realm of faith’.83 Since it pleased God ‘to deal with Man in a Moral manner (for Christ heal’d the Sick, commanded Storms into a Calm, call’d the Dead to Life with a word, but is never read to have Converted Men in like manner)’, he does not draw him to salvation ‘after the manner of working of Engines’, but leaves to him the liberty to ‘resist and refuse the offer’d Grace of God’.84 Otherwise ‘Theology’ would not ‘be a Moral Discipline, but a Physical one’, and its Operations would ‘be accounted for by the Laws of Motion’.85 Pufendorf thus takes up federal theology, a topos of reformed theology, in order to beat the reformed Churches with their own weapons: For he considers the idea of a covenant of God and man as incompatible with the doctrine of

78 Pufendorf, Two Books of the Elements of Universal Jurisprudence, Natural Law and Enlightenment Classics, ed. by Thomas Behme (Indianapolis: Liberty Fund, 2009), I.Def.1.1. 79 De jure naturae, i.4.2. 80 Elements, i.Def.1.3. 81 See Behme, ‘Pufendorf’s Doctrine of Sovereignty’, pp. 45, 47. 82 Letter Pufendorf an Johan Christian von Boineburg, Heidelberg, 7.2.1663, in Briefwechsel, pp. 29‒32, esp. p. 30: ‘Neque omnes homines ad hoc apti nati sunt, ut caeco possint obsequio duci. Parere vult optimus quisque, sed ut homo, non ut bestia’. 83 Leonard Krieger, The Politics of Discretion. Pufendorf and the Acceptance of Natural Law. (Chicago: University of Chicago Press, 1965), p. 252. 84 The Divine Feudal Law, § 67. 85 Ibid.

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absolute decree in which he saw the main hindrance of a union of Lutherans and Calvinists.86 In detail Pufendorf distinguishes several covenants: The first covenant with Adam established religion and obliged man to pay to God a supreme reverence and to love his neighbour, while God promised man immortality and the ‘Continuance of his present most happy State’. Though it didn’t add anything to the obligation of natural law that covenant has to be distinguished from the creation.87 The fall resulted in the loss of these divine benefits and in the corruption of human intellect and will. It did not weaken the obligatory force of natural law but impaired man’s ability to meet its obligations.88 In order not to withhold altogether his mercy from mankind, God established a new covenant with man by the interposition of a mediator.89 It was prepared by and intimated in several particular covenants with Noah, Abraham and finally with the people of Israel.90 That new covenant consists of a double agreement, one of God the father with the son, the other of the son as mediator and savior with men. By the first agreement the son substitutes himself in place of mankind, satisfies the divine justice for their sins and procures to them the favor of God and eternal salvation. By the second agreement the savior offers the conciliation with God to all men, while the latter are obliged to embrace this benefit ‘with a sincere and firm Faith and Trust’.91 According to Pufendorf that second agreement shows resemblance with a feudal contract, wherein one party out of favor confers something upon the other, namely remission of sins and conciliation. But what is performed on the other part has not the nature of a retribution, but only of an acknowledgement (‘vim recognitionis’), namely the faith in Christ that grants new powers of sanctification and of observance of the natural law.92 That covenant, though offered to everyone, does not bind mankind as a society, but as particulars, so that one forsakes that covenant

86

87 88 89 90 91 92

See Letter Pufendorf to Adam Rechenberg, Berlin, 31.1.1691, in Briefwechsel, pp. 301‒303, esp. p. 302: ‘Denn mein scopus ist eigentlich den Calvinismus funditus zu haben; weil ich glaube, daß dieses eine invicta thesis ist; Si salus nostra est ex foedere, non est ex absoluto decreto’. See also Detlef Döring, Pufendorf-​Studien. Beiträge zur Biographie Samuel von Pufendorfs und zu seiner Entwicklung als Historiker und theologischer Schriftsteller, Historische Forschungen 49 (Berlin: Duncker & Humblot, 1992) p. 91‒96; Rabe, Naturrecht und Kirche, p. 49ff. The Divine Feudal Law, §§ 22‒24. Ibid., §§ 25f. Ibid., § 27. Ibid., §§ 30‒35. Ibid., §§ 37f. Ibid., § 54.

256 Behme ‘only for himself, or at his own peril’.93 That new covenant presupposes the article of trinity to account for the ‘divers personal Characters, and … actions’ as ‘to beget and to be begotten, to send and to be sent, to bear Testimony the one of the other’ that cannot possibly meet in one person,94 but also the ‘Personal Union [unio personalis]’ of divine and human nature in Christ to account for his role as mediator.95 That ‘system’ of theology which Pufendorf considers to be ‘but … a rude Draught, and capable of much polishing’ pretends to embrace ‘all the Articles of Faith necessary to Salvation’, so that none of them can be denied or called in question without breaking ‘the whole Chain or Connexion of the Faith’.96 Of the controversies among the Protestants, Pufendorf makes a distinction of particular ones that touch only one article of Christian religion from those that affect the whole system and do greatly alter or utterly destroy it. To the former ones he refers the controversies concerning the person of Christ and the Lord’s supper, to the latter ones the controversies about predestination and grace.97 The controversies that concern the person of Christ and the Lord’s supper are the products of improper curiosity and of the intermingling of philosophy and theology. They might be easily settled by confining oneself to the ‘plain Assertions of Holy Scripture’ and by not assuming more than needed for the end of eternal salvation.98 In this way Pufendorf re-​emphasizes the Lutheran position: On the person of Christ he confirms the Lutheran doctrine of ‘Communication of Idioms or Proprieties [idiomatum communicatio]’, that entails that the human nature in Christ partakes at proprieties of the divine nature like omnipresence.99 But he counters the reformed critique that points to absurd consequences of that doctrine by limiting any assumption on that matter to the end of the mediator’s office, and by calling in scriptural evidence.100 On the Lord’s supper he considers the Lutheran doctrine of the real

93 94 95 96 97 98 99 100

Ibid., § 27. Ibid., § 39. Ibid., §§ 40‒46. Ibid., § 60. Ibid., § 62. Ibid. and § 63. Ibid., § 46. Ibid.: ‘Thus it is in vain to enquire whether or no the Power of creating the Heavens and the Earth be communicated to the Humane Nature of Christ, since the Business of Mediation was not appointed for any such End. And to what Purpose is to enquire whether or no Christ, according to his Humane Nature, be present to all the Stars, or to every Plant, Stone, and every other Creature? For the Holy Scripture says nothing of these Matters, nor does such a Presence influence any thing towards the Redemption of Mankind’.

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presence of Christ’s body and blood in bread and wine, that leaves the manner of that presence undecided, to be most conformable to scripture (1 Korinthians 10.6).101 He rejects the reformed interpretation of the Lord’s supper as a ‘sign or symbol [signum aut symbolum]’ as a ‘Figurative Interpretation’, that casts away the ‘simple Sense of the Words’.102 But he considers as much more important than that inner-​Protestant disagreement, the need to ward off the ‘monstrous … Transsubstantiation of the Papists’, that assumes the production of the body of the savior from a bit of bread by the priest’s pronouncing a certain formula.103 But the decisive controversy that affects the whole theological system concerns questions of predestination and grace. Here Pufendorf sharply rejects the reformed doctrine of absolute decree, according to which the fall and damnation of some people depends on divine pleasure (‘arbitrium’), and he denies any scriptural evidence for it.104 He alleges ‘Expressions in Scripture of the Universal Mercy of God, of the Extent of the Merit of Christ to all, of the Vocation and Preaching of the Gospel, from which no Man is excluded by any Divine Order or Command’. But the cause of particularity lies in ‘the fault of men who despise the offered means’.105 Nonetheless that human faculty to resist remains compatible with divine prescience (and thus with predestination), because in God ‘there is no succession of time …, but a pure Eternity or Everlasting now’.106 That position suits well the Lutheran understanding of grace and predestination as expressed in the formula of concord.107 As shown above it also suits well Pufendorf’s understanding of anthropological liberty as indifference. Thus it is not astonishing that he sometimes uses arguments in Jus feciale to defend the Lutheran position that are very similar to those used against Hobbes in his natural law writings: He mentions that the reformed, in 1 01 102 103 104 105 106 107

Ibid., §§ 57f. Ibid., § 63. Ibid. Ibid., § 64. Ibid., § 68. Ibid., § 67. See, for example, The Formula of Concord, Epitome, xi,11, in Triglot Concordia. The Symbolical Books of the Ev. Lutheran Church, German-​Latin-​English. Ed. by Friedrich Bente and William Herman T. Dau (St. Louis: Concordia Publishing House, 1921), p. 885: ‘However, that many are called and few chosen, Matt. 22, 14, does not mean that God is not willing to save everybody; but the reason is that they either do not at all hear God’s Word, but wilfully despise it, stop their ears and harden their hearts, and in this manner foreclose the ordinary way to the Holy Ghost, so that He cannot perform His work in them, or, when they have heard it, make light of it again and do not heed it, for which [that they perish] not God or His election, but their wickedness, is responsible’.

258 Behme order to defend themselves against the objection that predetermination takes away the morality of human actions, fain that the Liberty of the Will of Man consists only in a Spontaneity, or Absence of Violent Constraint, not in an Indifferency … But if the Physical, or Natural Act of every Humane Action is so predetermin’d, as that it must needs exist, … I cannot conceive that there is more Liberty in Men then there is in Water, flowing down within its Channel.108 The water in the channel is an allusion to a passage in Hobbes’s Leviathan: In the chapter On the Liberty of Subjects Hobbes characterizes ‘Liberty’ as ‘absence … of external impediments of motion’, that might ‘be applied no less to irrational … creatures, than to rational’. When ‘water … is kept in by banks, or vessels, that otherwise would spread itself into a larger place, we use to say, they are not at liberty, to move in such manner’. Accordingly, Hobbes understands by the word ‘free-​will’ the liberty of a man, who ‘finds no stop, in doing what he has … inclination to do’ –​a liberty that he considers as consistent with necessity.109 That Hobbesian concept of liberty had already been criticized with similar arguments in De Jure Naturae et Gentium in the passage, where Pufendorf introduces the indifference of the will. Here he refers to De Homine, c. 11, § 2, according to which appetite and aversion necessarily follow the preconception of some pleasure and trouble, which will arise from the objects. According to Pufendorf, that necessity only exists in the ‘volition of simple approbation [volitio simplicis adprobationis]’, but not the ‘effective volition or previous choice [volitio … efficax seu proairesis]’, which does not necessarily depend upon particular objects.110 That congruence of Pufendorfian anthropology and the Lutheran view on Grace and Predestination suits another congruence, namely of the abovementioned demarcation of natural law and revealed Christianity to Luther’s distinction of Law and Gospel111 and to the doctrine of the two kingdoms based 1 08 109 110 111

The Divine Feudal Law, § 67, p. 147. Thomas Hobbes, Leviathan, ed. by Michael Oakeshott (London: Routledge, 1977), p. 159f. De jure naturae, i.4.2. That distinction characterizes human fallen nature and its relation to the gospel: The function of the law is both to restrain human wickedness and to make obvious man’s original sinfulness and hopelessness which prepares him for receiving the promise of grace through the gospel. Those who accept that promise in true and sincere belief will gain both remission of their sins and the ability to a complete fulfilment of the spirit of the law. See e. g. Smalcald Articles, Part iii, Art. ii. Of the Law and iii. On Repentance, in Triglot Concordia, p. 479f.: ‘Here we hold that the Law was given by God, first, to restrain sin by threats and the dread of punishment, and by the promise and offer of grace and

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on it: It distinguishes a ‘kingdom of God [reych Gottis]’ from the ‘kingdom of the world [reych der welt]’, and, based on it, ‘two governments [regiment]: the spiritual, by which the Holy Spirit produces Christians and righteous people under Christ; and the temporal, which restrains the un-​Christian and wicked so that ‒ no thanks to them ‒ they are obliged to keep still and to maintain an outward peace’.112 While the members of the kingdom of God have the holy spirit in their heart, ‘who both teaches and makes them to do injustice to no one, to love everyone, and to suffer injustice and even death willingly and cheerfully at the hands of anyone’, the members of the kingdom of the world are ‘under the law’ and ‘subjected … to the sword’ to restrain their wickedness.113 Thus to both kingdoms correspond two kinds of law, that are nonetheless grounded in the unique will of God.114 Similar to Luther, who cannot imagine a natural law independent of divine will,115 Pufendorf derives the obligatory force of natural law entirely from divine command. In the discussion of the origin of morality and the indifference of physical motion in human action in Eris Scandica, where he had to deal with the doctrine of the perseitas of good and bad actions advocated for by the Lutheran theologian Valentin Veltheim, Pufendorf cites Luther’s Small Catechism, that gives as reason for the observance of any of the ten commandments: ‘We should fear and love God that we may not …’.116 He thus tries to convict his adversary of heterodoxy and to confirm the Lutheran orthodoxy of benefit … But the chief office or force of the Law is that it reveal original sin with all its fruits, and show man how very low his nature has fallen, and has become [fundamentally and] utterly corrupted … In this way he becomes terrified, is humbled, desponds, despairs, and anxiously desires aid, but sees no escape … [Art. iii] This office [of the Law] the New Testament retains and urges … But to this office the New Testament immediately adds the consolatory promise of grace through the Gospel, which must be believed, as Christ declares, Mark 1,15: Repent and believe the Gospel, i.e., become different and do otherwise, and believe My promise.’ 112 Martin Luther, Von welltlicher Uberkeytt, wie weyt man yhr gehorsam schuldig sey, in wa 11, pp. 245‒281, esp. p. 251. The English citation follows to the translation by Jeremiah J. Schindel: Temporal authority: to what extent it should be obeyed, in Luther’s Works, edited by Laroslav Pelikan and Helmut T. Lehmann, vol. 45. The Christian in Society ii (Philadelphia: Fortress Press, 1962), pp. 81‒129. espec. 91. 113 Ibid., pp. 89f. 114 Ibid., Part ii. How Far Temporal Authority Extends, p. 104. 115 Hans Karl Scherzer, Martin Luther, in Klassiker des politischen Denkens. Ed. by Hans Maier, Heinz Rausch and Horst Denzer (München: Beck, 1979), vol. i, pp. 245–​273, esp. p. 258f. 116 Pufendorf, Eris Scandica, ed. by Palladini, Specimen controversiarum, cap. v. De Origine Moralitatis et Indifferentia Motus Physici in Actione Humana, § 30, p. 187, referring to Luther, Parvus Catechismus pro pueris in schola (e.g. wa 30, pp. 283‒291, English in Triglot Concordia, pp. 538‒542).

260 Behme his own voluntarist foundation of natural law. But in contrast to the reformator’s anthropological pessimism117 Pufendorf shows a greater confidence in fallen man’s ability to grasp the principles of natural law by the light of natural reason: Now since the understanding carries, as it were, a torch before our actions, and when that gives an uncertain light we cannot fail to wander from our course, we must insist upon the truth of the principle, that, in the faculty of apprehension and in the judgement there is inherent a natural rectitude, which does not allow us to be misled in moral questions, if proper attention be paid to them, and which does not suffer those faculties to become so corrupted that we cannot but be misled … Hence, if we do not wish to destroy all morality in actions, we must at any hazard maintain that the understanding of man is by nature sound, and that upon sufficient inquiry it apprehends clearly, and as they actually are, the matters which present themselves to it. And further, that the practical judgement, at least as concerns the general precepts of natural law, cannot be so corrupted that it may not be held responsible for any evil actions that come from it, on the ground that they proceeded from an insuperable error or ignorance.118 That view was sharply criticized by the theologians Nikolas Beckmann and Joshua Schwartz in the Index novitatum that lists offences of Pufendorf’s natural law doctrine against the orthodox Lutheran faith, including ‘Errors concerning the free will [Errores circa liberum arbitrium]’. It denounces Pufendorf’s view of the natural rectitude of the intellect in moral matters as an ‘error scholasticus’ like those damned by Luther in the Smalcald Articles:119 In the article

1 17 See fn 120, below. 118 De jure naturae, i.3.3: ‘Porro cum intellectus velut facem praeferat nostris actionibus, eoque non recte praelucente, non possimus non in devia aberrare; pro certo statuendum est, & in ipsa facultate adprehensiva, & in judicio naturalem inesse rectitudinem, quae, debita adhibita attentione nos decipi circa res morales non patiatur; nec utrumque ita depravari, ut circa easdem non possimus non decipi … Ergo nisi omnem actionum moralitatem velimus evertere, omnino tenendum est, intellectum hominis naturaliter esse rectum, & praemissa debita inquisitione res objectas liquido, & prout in se sunt, adprehendere. Quin nec judicium practicum, saltem circa generalia praecepta juris naturalis, ita posse depravari, ut quae inde suscipiuntur actiones pravae, ipsi nequeant imputari, velut ex invincibili errore aut ignorantia profectae’. 119 Index Quarundam Novitatum, Quas Dominus Samuel Puffendorff Libro Suo De Jure Naturae Et Gentium Contra orthodoxa fundamenta Londini edidit (s.l., 1673), § xii, No. 16.

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Of Sin Luther criticizes those scholastic doctors that have taught, ‘that since the fall of Adam the natural powers of man have remained entire and incorrupt, … that man by nature has a right reason and good will’, and that he has ‘a free will to do good and omit evil’.120 But according to Pufendorf’s reply in Eris Scandica the true sense of that passage has to be explained by The Defense of the Augsburg Confession:121 In the Article Of Free Will the author Philipp Melanchthon states that notwithstanding the ‘power of concupiscence’ there is ‘left in human nature reason and judgment concerning objects subjected to the senses, choice between these things, and the liberty and power to render civil righteousness’, a righteousness that ‘Scripture calls … the righteousness of the flesh which the carnal nature, i.e., reason, renders by itself, without the Holy Ghost’.122 Thus Pufendorf interprets Luther with the help of Philipp Melanchthon who had reintroduced Aristotelian philosophy into Lutheran theology, and who more strongly than other reformers emphasizes the persistence of the ‘notitiae naturales’ and of the ‘free will [liberum arbitrium]’ in man after the fall.123 On that basis, Melanchthon advocates a moral philosophy as an autonomous discipline which is based on ‘firm demonstrations’ but restricted to that ‘part of the divine law’ which contains prescriptions on man’s ‘external actions’.124 That also entails its soteriological insufficiency, because it ‘teaches nothing on the remission of sins, nor does it show in what manner God approves the unwilling’.125 Thus Melanchthon, somehow anticipating Pufendorf’s secularization program,126 interprets Luther’s distinction of the 1 20 Smalcald Articles, Part iii, Art. i. Of Sin, No. 3‒5, in Triglot Concordia, p. 477. 121 Pufendorf, Eris Scandica, ed. by Palladini, Apologia § 21, p. 32. 122 Philipp Melanchthon, The Defense of the Augsburg Confession, Art. xviii: Of Free Will, in Triglot Concordia, p. 335. 123 See Günther Frank, Die theologische Philosophie Philipp Melanchthons (1497–​ 1560), Erfurter theologische Studien 67 (Leipzig: Benno, 1995), pp. 108ff., 294f. 124 Philipp Melanchthon, Philosophiae moralis epitomes libri duo, 1546, in Melanchthons Werke in Auswahl, vol. iii. Humanistische Schriften, ed. by Richard Nürnberger (Gütersloh: Gütersloher Verlag G. Mohn, 1961), pp. 149‒301, lib. i, pp. 157f.: ‘Philosophia moralis est pars illa legis divinae, quae de externis actionibus praecipit … (p. 158) Ut enim in aliis artibus sunt principia et demonstrationes, quae non possunt labefactari: ita et in philosophia morali sunt certa principia practica, et hinc nascuntur firmae demonstrationes’. 125 Ibid.: ‘Nihil enim docet philosophia de remissione peccatorum, nec ostendit quomodo Deus approbet indignos’. 126 That similarity of Pufendorf’s demarcation of natural law and moral theology to Melanchthons distinction of moral philosophy and Gospel has already been mentioned in the secondary literature: See Kari Saastamoinen, The Morality of the Fallen Man. Samuel Pufendorf on Natural Law (Helsinki: Societas Historica Finlandiae, 1995), pp. 41‒43; Fiammetta Palladini, ‘Samuel Pufendorf als Moralphilosoph’, in Jahrbuch für Recht und

262 Behme two kingdoms in a way that allows for independent research on ‘the external and civil life [quod ad externam et civilem consuetudinem vitae attinet]’.127 Because that distinction intends to ‘provide a sound basis for the civil law and sword’ according to Luther and to confirm its biblical legitimation in external affairs,128 it leaves to the worldly sovereign the whole extent of secular government: As Pufendorf states it submits the clergy with their lives and fortunes to the sovereign,129 vests the latter with the external direction in church matters130 and thus guarantees the rights of summum imperium as defined in his natural law doctrine.131 In addition to that, it strengthens the sanctity of summum imperium by obliging the people to respect its bearers as God’s vicegerents on earth.132 But the extent of the territorial church government that Pufendorf justifies in the course of his argumentation in De Habitu, and that includes the above mentioned competences of the sovereign in composing religious controversies133 neither conforms to the premises of his own delimitation of natural law politics and revealed Christianity nor to the basic idea of Luther’s two governments: That basic idea was to keep the church away from worldly affairs on the one hand but also to avoid any kind of secular compulsion in church matters on the other.134 The territorial church government Ethik, 8 (2000), pp. 199‒207, esp. 203ff. But they also point to signifant differences between both authors: According to Saastamoinen Melanchthon’s distinction of moral philosophy is mainly based ‘on the different practical concerns’ of both doctrines (salvation and an ordered worldly life), while Pufendorf’s distinction is ‘principially epistemological’ (loc. cit. p. 43). According to Palladini moral philosophy in Melanchthon needs to be completed in its own field by theology, while Pufendorf conceives natural law as a science complete in its own limited field and independent from (scriptural) theology (loc. cit. p. 206). 127 Melanchthon, Epitome, p. 159. 128 Luther, Temporal Authority, p. 85. 129 Of the Nature and Qualification, § 51, p. 111. 130 See above p. 250. 131 On the extent of sovereignty according to Pufendorf’s natural law theory see Behme, Samuel von Pufendorf, Naturrecht und Staat: Eine Analyse und Interpretation seiner Theorie, ihrer Grundlagen und Probleme (Göttingen: Vandenhoeck und Ruprecht, 1995), pp. 131‒146. 132 Pufendorf (Severinus de Monzambano), De Statu Imperii Germanici, ed. by Fritz Salomon (Weimar: Hermann Böhlaus Nachfolger, 1910), chap. 8, § 7; De concordia, §§. 2f. 133 See above p. 250. 134 See, for example, Luther,Von welltlicher Uberkeytt, p. 262: ‘Das welltlich regiment hatt gesetz, die sich nicht weytter strecken denn uber leyb und gutt und was eußerlich ist auff Erden. Denn uber die seele kan und will Gott niemant lassen regirn denn sich selbs alleyne. Darumb wo welltlich gewallt sich vermisset, der seelen Gesetz zu geben, do greyfft sie Gott ynn seyn regiment und verfuret und verderbet nur die seelen … (p. 265) Denn meyn ungnedige Herren, Bapst und Bischoffe sollten bischoffe seyn unnd Gottis wortt

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(landesherrliche Kirchenregiment) that emerged in the Lutheran territories resulted from the role of the Protestant princes as political protectors of the Lutheran belief and had no dogmatic basis in Luther’s theology.135 Pufendorf’s apology of that contemporary practice which started from an original advocacy of the mutual independence of natural law and moral theology methodologically recalls the role of the state of nature in deriving sovereign power as it existed in his times.136 Thus his endeavors in both fields end in an apology of the status quo to prove its reasonableness or rather its conformity to true religion.

Select Bibliography



Primary Literature

[Beckmann, Nicolaus] Index Quarundam Novitatum, Quas Dominus Samuel Puffendorff Libro Suo De Jure Naturae Et Gentium Contra orthodoxa fundamenta Londini edidit. S. L. 1673. Gerhard, Johann, Loci Theologici cum pro adstruenda Veritate tum pro destruenda quorumvis contradicentium Falsitate per Theses nervose solide et copiose explicati, ed. by Eduard Preuss. Berlin: Schlawitz, 1863. Hobbes, Thomas, Leviathan, ed. by Michael Oakeshott. London: Routledge, 1977. Luther, Martin, An den christlichen Adel deutscher Nation [1520], in D. Martin Luthers Werke. kritische Gesamtausgabe. Weimar: Böhlau, 1883–​1929 [hereafter: wa] vol. 6, pp. 404‒4696, pp. 404–​469. Luther, Martin, Von welltlicher Uberkeytt, wie weyt man yhr gehorsam schuldig sey [1523]. wa 11, pp. 245‒281. translation by Jeremiah J. Schindel: Temporal authority: to what extent it should be obeyed, in Luther’s Works, edited by Laroslav Pelikan and Helmut T. Lehmann, vol. 45. The Christian in Society ii., Philadelphia: Fortress Press, 1962, pp. 81‒129. Luther, Martin, Parvus Catechismus pro pueris in schola [1536]. wa 30, pp. 283‒291. English in Triglot Concordia, pp. 538‒542. predigen. Das lassen sie und sind weltliche fursten worden und regirn mit gesetzen, die nur leyb unnd gutt betreffen. Feyn haben sie es umbkeret: ynnerlich solten sie regirn die seelen durch Gottis wortt, so regirn sie außwendig schlösser, stedt, land und leutt und martern die seelen mit unseglicher mörderey’. 135 See Hans Walter Krumwiede, Kirchenregiment, Landesherrliches, in Theologische Realenzyklopädie, 36 vols. (Berlin: De Gruyter, 1976–​2004), vol. 19, pp. 59‒68, esp. 61f. 1 36 On Pufendorf’s doctrine of the state of nature and its function in deriving sovereign power, see Behme, Pufendorf, Naturrecht und Staat, chap. vi and ix; idem, Pufendorf’s Doctrine of Sovereignty, pp. 47‒54.

264 Behme Luther, Martin, The Smalcald Articles [1537], in Triglot Concordia, pp. 453–​529. Melanchthon, Philipp, The Defense of the Augsburg Confession [1531], in Triglot Concordia, pp. 97–​451. Melanchthon, Philipp, Philosophiae moralis epitomes libri duo [1546], in Melanchthons Werke in Auswahl, vol. iii. Humanistische Schriften, ed. by Richard Nürnberger. Gütersloh: Gütersloher Verlag G. Mohn, 1961, pp. 149‒301. Pufendorf, Samuel, Two Books of the Elements of Universal Jurisprudence, Natural Law and Enlightenment Classics, ed. by Thomas Behme. Indianapolis: Liberty Fund, 2009. Pufendorf, Samuel, (Severinus de Monzambano), De Statu Imperii Germanici [1667], ed. by Fritz Salomon. Weimar: Hermann Böhlaus Nachfolger, 1910. Pufendorf, Samuel, De Jure Naturae et Gentium [1672], Gesammelte Werke 4. ed. by Frank Böhling. Berlin: Akademie Verlag, 1998. English: On the Law of Nature and Nations. Classics of International Law, Carnegie Endowment for International Peace. Tr. by Charles Henry Oldfather and William Abbott Oldfather. Oxford: Clarendon Press, 1934. Pufendorf, Samuel, De Officio Hominis et Civis juxta Legem Naturalem Libri Duo [1673], Gesammelte Werke 2, ed. by Gerald Hartung. Berlin: Akademie Verlag, 1997. English tr. The Whole Duty of Man, According to the Law of Nature. Natural Law and Enlightenment Classics, ed. by Ian Hunter and David Saunders, tr. by Andrew Tooke, Indianapolis: Liberty Fund, 2003. Pufendorf, Samuel, De Concordia Verae Politicae cum Religione Christiana [1673], in Idem, Dissertationes academicae selectiores. Upsaliae 1677, pp. 428‒458. Pufendorf, Samuel, Eris Scandica [1686], Gesammelte Werke 5, ed. by Fiammetta Palladini. Berlin: Akademie Verlag, 2002. Pufendorf, Samuel, De Habitu Religionis Christianae ad Vitam Civilem [1687]. Gesammelte Werke 6. ed. by Wilhelm Schmidt-​Biggemann. Berlin: Akademie Verlag, 2016. English Of the Nature and Qualification of Christian Religion, in Reference to Civil Society. Natural Law and Enlightenment Classics. Tr. by Jodocus Crull, ed. by Simone Zurbuchen, Indianapolis: Liberty Fund, 2002. Pufendorf, Samuel, Jus feciale divinum [1695], Gesammelte Werke 9, ed. by Detlef Döring. Berlin: Akademie Verlag, 2004. English: Divine Feudal Law: Or, Covenents with Mankind, Represented. Natural Law and Enlightenment Classics. Tr. by Theophilus Dorrington, ed. by Simone Zurbuchen, Indianapolis: Liberty Fund, 2002. Pufendorf, Samuel, Briefwechsel, Gesammelte Werke 1. ed. by Detlef Döring, Berlin: Akademie Verlag, 1996. Triglot Concordia. The Symbolical Books of the Ev. Lutheran Church, German-​Latin-​ English. ed. by Friedrich Bente and William Herman T. Dau. St. Louis MO: Concordia Publishing House, 1921.

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Weigel, Erhard, Philosophia Mathematica Theologia Naturalis Solida [1693] Werke iv, 1−2. Ed. by Thomas Behme. Stuttgart-​Bad Cannstatt: Frommann-​Holzboog, 2013. Weigel, Erhard, Wienerischer Tugend-​Spiegel [1687] Werke v, 1–​2. Ed. by Thomas Behme. Stuttgart-​Bad Cannstatt: Frommann-​Holzboog, 2016.



Secondary Literature

Behme, Thomas, ‘Pufendorf’s Doctrine of Sovereignty and its Natural Law Foundations’, in Natural Law and Civil Sovereignty. Moral Right and State Authority in Early Modern Political Thought. ed. by Ian Hunter and David Saunders. Basingstoke: Palgrave Macmillan, 2002, pp. 43‒58. Behme, Thomas, Introduction to Philosophia Mathematica Theologia Naturalis Solida. ed. by Thomas Behme, Stuttgart-​Bad Cannstatt: Frommann-​Holzboog, 2013. Behme, Thomas, Samuel von Pufendorf, Naturrecht und Staat: Eine Analyse und Interpretation seinerTheorie, ihrer Grundlagen und Probleme. Göttingen:Vandenhoeck und Ruprecht, 1995. Denzer Horst, ‘Ethik und Recht im deutschen Naturrecht der zweiten Hälfte des 17. Jahrhunderts’, in Recht und Ethik. Zum Problem ihrer Begründung im 19. Jahrhundert. Ed. by Jürgen Blühdorn and Joachim Ritter, Frankfurt a. M.: Klostermann, 1970, pp. 103‒111. Denzer, Horst, Moralphilosophie und Naturrecht bei Samuel Pufendorf. Eine geistes-​und wissenschaftsgeschichtliche Untersuchung zur Geburt des Naturrechts aus der praktischen Philosophie. Münchner Studien zur Politik 22. München: Beck, 1972. Döring, Detlef, Pufendorf-​Studien. Beiträge zur Biographie Samuel von Pufendorfs und zu seiner Entwicklung als Historiker und theologischer Schriftsteller. Historische Forschungen 49. Berlin: Duncker & Humblot, 1992. Frank, Günther, Die theologische Philosophie Philipp Melanchthons (1497–​1560). Erfurter theologische Studien 67. Leipzig: Benno, 1995. Krieger, Leonard, The Politics of Discretion. Pufendorf and the Acceptance of Natural Law. Chicago: University of Chicago Press, 1965. Krumwiede, Hans Walter, Kirchenregiment, Landesherrliches, in Theologische Realenzyklopädie, 36 vols. Berlin: De Gruyter, 1976–​2004, vol. 19, pp. 59‒68. Palladini, Fiammetta, Samuel Pufendorf als Moralphilosoph, in Jahrbuch für Recht und Ethik, 8 (2000), pp. 199‒207. Rabe, Horst, Naturrecht und Kirche bei Samuel von Pufendorf. Tübingen: Fabian Verlag, 1958. Saastamoinen, Kari, The Morality of the Fallen Man. Samuel Pufendorf on Natural Law. Helsinki: Societas Historica Finlandiae, 1995. Scherzer, Hans Karl, ‘Martin Luther’, in Klassiker des politischen Denkens. ed. by Hans Maier, Heinz Rausch and Horst Denzer. München: Beck, 1979. Vol. i, pp. 245–​273.

266 Behme Thieme, Hans, Das Naturrecht und die europäische Privatrechtsgeschichte. Basel: Helbing & Lichtenhahn, 1947. Welzel, Hans, Die Naturrechtslehre Samuel Pufendorfs. Berlin: De Gruyter, 1958. Welzel, Hans, Naturrecht und materiale Gerechtigkeit. Göttingen: Vandenhoeck & Ruprecht, 41984. Zurbuchen, Simone, Naturrecht und natürliche Religion. Zur Geschichte des Toleranzbegriffes von Samuel Pufendorf bis Jean Jacques Rousseau. Epistemata. Reihe Philosophie 87. Würzburg: Königshausen & Neumann, 1991.

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Pufendorf: Coercion, Religious Beliefs and Toleration Heikki Haara While Samuel Pufendorf (1632–​1694) is mostly known for his treatises on natural law, he also wrote extensively on issues of religious toleration. Owing to numerous religious-​political conflicts, toleration became one of the central concepts of political-​philosophical discourse in late seventeenth-​ century Europe. Pufendorf’s main work on toleration and church-​state relations, De habitu religionis christianae ad vitam civilem (1687) (hereafter De habitu), belongs to the body of literature that followed the revocation of the Edict of Nantes (1685) which led to the violent persecution of Huguenots in their native France.1 The posthumously published Jus feciale divinum (1695), attempting to reconcile Lutherans and Calvinists in the Holy Roman Empire, can be seen as an accompanying treatise on toleration.2 In De habitu, Pufendorf advocates the separation of church and state and the view that the salvation of souls does not belong to the scope of the sovereign’s authority. Simultaneously, however, he leaves the authority in ecclesiastic matters to the sovereign. In civil societies where a state church has been established, toleration is a privilege that the sovereign may or may not grant to religious groups. As a result of this apparent ambiguity, Pufendorf’s theory of toleration is open to more than one interpretation. Some scholars have stressed the continuities between Pufendorf’s theological commitments and his treatment of toleration. Detlef Döring argues that, because Pufendorf’s commitments to 1 The original language version of the text is cited first, separated by a forward-​slash from the translation. Samuel Pufendorf, De habitu religionis ad vitam civilem, Gesammelte Werke 6, ed. by Wilhelm Schmidt-​Biggemann (Berlin: Akademie Verlag, 2016) [=​De habitu]. Samuel Pufendorf, 2002. Of the Nature and Qualification of Religion in Reference to Civil Society. Tr. by Joducus Crull and ed. by Simone Zurbuchen (Indianapolis: Liberty Fund, 2002) [=​Of the Nature and Qualification]. 2 Samuel Pufendorf, Jus Feciale Divinum, Gesammelte Werke 9. ed. by Detlef Döring (Berlin: Akademie Verlag, 2004) [=​Jus feciale]. Samuel Pufendorf, The Divine Feudal Law: Or, Covenants with Mankind, Represented, tr. by Theophilus Dorrington & ed. by Simone Zurbuchen (Indianapolis: Liberty Fund, 2002) [=​Divine Feudal Law].

268 Haara Lutheran theology and passionate anti-​Catholicism, his theory of toleration was limited and ‘never more than a liberal Lutheranism’.3 Thomas Ahnert follows Döring by contending that Pufendorf was not a principled defender of a secular concept of natural law and toleration but ‘continued to be guided to a very considerable extent by a strong concern with restoring and preserving Christian religious orthodoxy’.4 In turn, Simone Zurbuchen argues that, rather than his Lutheranism, Pufendorf’s treatment of the coexistence of different religious groups is driven more by political intentions. She maintains that Pufendorf faces difficulties in conjoining unenforceable religious beliefs that are necessary for the salvation of souls and his defence of the Christian religion as a means to make subjects more obedient to the sovereign.5 Others have emphasized the ‘liberal’ aspects of Pufendorf’s treatment of state-​church relations. Ian Hunter argues that Pufendorf’s separation of the discipline of moral theology from the discipline of natural law ‘renders the state as absolute in the political arena’ and ‘simultaneously gives birth to a ‘liberal’ sphere of extra-​ political rights and freedoms’.6 According to Michael Seidler, for Pufendorf, a religion that undermines the state as the supreme form of social living cannot be a true religion. Nonetheless, Pufendorf’s concept of a civil sovereignty allows space for other voluntary organizations, such as churches, as long as they do not challenge the state’s normative authority.7 This chapter does not examine Pufendorf’s theory of toleration as a whole or his many arguments for religious toleration in their specific context; rather, 3 Detlef Döring, ‘Samuel von Pufendorf and Toleration’, in Beyond the Persecuting Society: Religious Toleration Before the Enlightenment, ed. by John Christian Laursen and Cary J. Nederman (University of Pennsylvania Press, 1998), pp. 178–​185, at p. 178. See also Detlef Döring, Pufendorf–​Studien. Beiträge zur Biographie Samuel von Pufendorfs und seiner Entwicklung als Historiker und theologischer Schriftsteller (Berlin: Duncker & Humblot, 1992). 4 Thomas Ahnert, ‘Samuel Pufendorf and Religious Intolerance in the Early Enlightenment’, in Natural Law and Toleration in the Early Enlightenment, ed. by Jon Parkin and Timothy Stanton (Oxford: Oxford University Press, 2011), pp. 15–​33. 5 Simone Zurbuchen, ‘Samuel Pufendorf’s Concept of Toleration’, in Difference and Dissent: Theories of Toleration in Medieval and Early Modern Europe, ed. by Cary J. Nederman and John Christian Laursen (Lanham: Rowman & Littlefield Publishers, 1996), pp. 163–​184. 6 Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001), p. 194. 7 Michael Seidler, ‘Pufendorf and the Politics of Recognition’, in Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought, ed. by Ian Hunter and David Saunders (New York: Palgrave Macmillan, 2002), pp. 235–​251. For the comparison between Pufendorf’s and Locke’s view on toleration, see Michael Seidler, ‘The Politics of Self-​Preservation: Toleration and Identity in Pufendorf and Locke’, In Early Modern Natural Theories: Context and Strategies in the Early Enlightenment, ed. by Tim J. Hochstrasser and Peter Schröder (Dordrecht: Kluwer Academic Publishers, 2002), pp. 227–​255.

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my focus is limited to Pufendorf’s treatment of religious coercion, that is, an attempt to force individuals to adopt specific religious beliefs.8 The controversial notion of the person as a free chooser of his or her religious beliefs lies at the heart of the contemporary liberal concept of toleration. Liberal theories of tolerance tend to emphasize the view that external coercion is both morally wrong and practically impossible because the authority of judgement resides within the individual’s free exercise of his or her reason. This was also the view of Hugo Grotius in his Ordinum pietas (1613) and De imperio circa sacra (1614–​6, publ. 1647). Today the view that tolerance is grounded in the individual’s autonomous capacity to choose one’s religious beliefs is most often attributed to Pufendorf’s immediate contemporary John Locke.9 It is rather surprising that scholars have not so far attempted to examine Samuel Pufendorf’s concept of toleration from the perspective of his account of the limits of coercing belief. The most obvious novelty of this chapter lies in its particular focus on the interrelations between Pufendorf’s theory of human action and his writings on toleration. I shall argue that Pufendorf does not base his theory of toleration on the individual’s rational capacity to choose one’s religious beliefs, nor does he straightforwardly support the epistemological claim that it is impossible to coerce belief. Pufendorf defends the freedom of understanding and will as a precondition of moral accountability. However, he is simultaneously unconvinced about people’s rational capacity to recognize the precepts of natural religion through reason. Therefore, the sovereign ought to employ coercion and the threat of punishment to ensure that people uphold, at least externally, the proper natural theological beliefs that are essential to sociability and 8 As Thomas Ahnert has argued, religious intolerance is not necessary the same thing as religious coercion, ‘because intolerance can take the form of expelling dissenters from a territory, or refusing them entry to it, as in the case of the Swedish king and the Huguenot refugees’. Ahnert, ‘Samuel Pufendorf and Religious Intolerance’, pp. 23–​24. 9 Philosophical studies of Locke’s theory of toleration often center on the question of whether Locke is able to coherently defend the epistemological claim that belief cannot be coerced. See Jeremy Waldron, ‘Locke: Toleration and the Rationality of Persecution’, in Justifying Toleration: Conceptual and Historical Perspectives, ed. by Susan Mendus (Cambridge: Cambridge University Press, 1988), pp. 61–​86; Susan Mendus, ‘Locke: Toleration, Morality and Rationality’, in John Locke: A Letter Concerning Toleration in Focus, ed. by John Horton & Susan Mendus (London: Routledge, 1991), pp. 147–​162. It is problematic whether Locke’s theory of toleration can be abstracted in this way because Locke’s arguments in Letter Concerning Toleration depends upon positions that he presents in his other writings. For an important analysis on the role of natural theology and natural law in Locke’s treatment of toleration, see Ian Harris, ‘John Locke and Natural Law: Free Worship and Toleration’, in Natural Law and Toleration in the Early Enlightenment, ed. by Parkin and Stanton, pp. 59–​105.

270 Haara political stability. In turn, Pufendorf reserves freedom from coercion only for the doctrines of revealed religion that fall outside the scope of natural reason. Thus, his argument for freedom from coercion is not based on a person’s rational autonomy to choose one’s religious beliefs but on reason’s limits with regard to revealed religion. In what follows, in the first section I will outline Pufendorf’s account of the freedom of human actions and his view on the possibility of coercing belief. In the sections that follow, I will show that coercion plays different roles with regard to natural religion and revealed religion. The second section deals with Pufendorf’s treatment of natural religion; the third section focuses on Pufendorf’s view of the individual’s freedom to accept or refuse Christian doctrine. 1

Freedom of Human Actions and Sociability

I shall begin by briefly explicating what Pufendorf says on the freedom of human actions and the coercion of beliefs in his main opus on natural law, De jure naturae et gentium (1672) (hereafter De jure).10 It is widely acknowledged in the literature that Pufendorf’s moral theory is based on the will of God as a crucial foundation of morality. God has imposed the basic moral norms onto the world. The most fundamental moral norm, the principle of sociability, commands us to ‘cultivate and maintain towards others a peaceable sociability (socialitas)’.11 Our duty to cultivate sociability as much as we can, depends on the will of God accessible through the use of the natural capacity of reason alone. Pufendorf’s natural law theory depends on a kind of minimalistic natural theology as the crucial foundation of morality. As he explains in De officio hominis et civis (1673) (hereafter De officio), lacking the idea of God as the supreme lawgiver, natural law norms ‘might be observed for their utility, like the prescriptions doctors give to regulate health’.12 Pufendorf therefore refutes 10

11 12

Samuel Pufendorf, De jure naturae et gentium. Samuel Pufendorf, Gesammelte Werke 4, ed. by Frank Böhling (Berlin: Akademie Verlag, 1998) [=​De jure naturae]. My policy has been to rely on Michael Seidler’s translation of De jure naturae whenever possible and use the Oldfathers’ translation only in passages omitted by Seidler. Samuel Pufendorf, The Political Writings of Samuel Pufendorf, ed. by Craig L. Carr and tr. by Michael J. Seidler (New York: Oxford University Press, 1994) [=​Political Writings]. Samuel Pufendorf, Of the Law of Nature and Nations, tr. by C. H. Oldfather and W. A. Oldfather (Oxford: Clarendon Press, 1934) [=​On the Law of Nature and Nations]. De jure naturae, ii.3.15. De officio, I.3.10/​ Duty of Man, 36. Samuel Pufendorf, De officio. Samuel Pufendorf, Gesammelte Werke, ed. by Gerald Hartung, Vol. 2 of Samuel Pufendorf: Gesammelte Werke, ed. by Wilhelm Schmidt-​Biggemann (Berlin: Akademie Verlag, 1997) [=​De officio].

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Hugo Grotius’s moral realism and his famous statement (which goes back to Gregory Rimini) about the possibility that ‘the dictates of reason’ (rationis dictamina) could be laws even without the premise of God’s existence.13 Like Thomas Hobbes and Hugo Grotius in De imperio circa sacra (see also the contribution of Stefanie Ertz in this volume), Pufendorf distinguishes law from council. A duty of compliance is owed to superior authority that imposes the law.14 In theory, all normal adults have the capacity to understand the basic principles of natural law and appreciate the divine nature of morality via reason. For instance, Pufendorf states that ‘no one can easily avoid being acquainted with the legislator’, and continues that ‘anyone who has acquired the use of reason will know that the author of natural law is the same as the author of the whole universe’.15 Some of Pufendorf’s comments give the impression that he supports the idea that everyone has the ability to rationally recognize God’s authority to hold them accountable for their actions. At the same time, however, he believes that in practice most people do not pay enough attention to things and therefore often make inaccurate judgements. Accurate judgements require proper attention. Understanding is correct only if people use it with care and devotion. Mindfulness of the rational requirements of morality is difficult to achieve because the majority of the people do not use their understanding effectually.16 Moreover, people often make mistakes, despite the natural correctness of understanding, because of the effects of passions (affectus). Passions not only hinder the will but ‘also obscure considerably the judgement of the understanding’.17 Furthermore, intellectual abilities vary widely among individuals. There are ‘the greatest differences’ between the distributions of intellectual capacities among individuals, which is a permanent feature of humankind.18 There is an elitist leaning in Pufendorf’s natural law theory. In numerous passages in De jure he argues that since common people’s capacity to use reason is fairly limited, most people cannot guide their actions without interference from the authorities.19 For Pufendorf, conscience cannot work as an

13 14 15 16 17 18 19

Samuel, Pufendorf, On the Duty of Man and Citizen, ed. by James Tully and tr. by Michael Silverstone (Cambridge: Cambridge University Press, 1991) [=​Duty of Man]. De jure naturae, ii.3.19. De jure naturae, i.6.9. De jure naturae, i.6.13/​Political Writings, p. 126. De jure naturae, i.3.2. De jure naturae, i.4.7/​Political Writings, p. 115. De jure naturae, vi.3.2/​On the Law of Nature and Nations, p. 637. See, for instance, De jure naturae, i.6.5; De jure naturae, iii.2.8.

272 Haara operative moral compass unless agents are completely familiar with the law.20 Most people guide their action by probable (probabiles) conscience and only few can examine how ‘the duties of life flow from the first sources’.21 Therefore, rather than acting according to one’s own private conscience, ‘an ignorant man is safest in following the authority of the more prudent’.22 When describing how people adopt sociability as their moral standard, Pufendorf focuses primarily on how the establishment of political governance may turn men into sociable and political animals. When speaking of the faculties of understanding and will, Pufendorf’s intention is to argue that people always own their actions and are responsible for them. Using scholastic terminology Pufendorf underlines that because God has equipped us with understanding (intellectus) and will (voluntas), the human soul is intended by its Creator to have a noble and far more diverse goal than simply the preservation of the body.23 If a man’s actions were entirely dependent on involuntary passions and desires he could not be responsible for his moral actions.24 Pufendorf therefore emphasizes our capacity to determine how we act on the basis of the things that appeal to our desires. One of the recurrent themes in Pufendorf’s natural jurisprudence is the persistent defence of the freedom of human actions. Pufendorf holds the strong doctrine of free will that is intrinsically detached from passions and desires.25 Referring to Descartes’s optimistic view of the will’s capacity to control the passions in Les passions de l’âme, which he quoted in Latin translation, Pufendorf underlines that all normal adults ‘can acquire an absolute control over their passions if they are sufficiently diligent in forming and directing them’.26 20 21 22 23

24

25 26

De jure naturae, iii.4.6. De jure naturae, i.3.5/​On the Law of Nature and Nations, p. 42. De jure naturae, i.3.6/​On the Law of Nature and Nations, p. 43. De jure naturae, ii.3.15. Recently, several scholars have drawn attention to Pufendorf’s deployment of Scholastic faculty psychology. See Thomas Pink, ‘Natural Law and the Theory of Moral Obligation’, in Psychology and Philosophy: Inquiries into Soul from Late Scholasticism to Contemporary Thought, ed. by Sara Heinämaa and Martina Reuter (Dordrecht: Springer, 2009), pp. 97–​ 114, and Ben Holland, ‘Pufendorf’s Theory of Facultative Sovereignty’, History of Political Thought 33:3 (2012), pp. 427–​454. See Hannah Dawson, ‘Natural Religion: Pufendorf and Locke on the Edge of Freedom and Reason’, in Freedom and the Construction of Europe. Volume I: Religious Freedom and Civil Liberty, ed. by Quentin Skinner and Martin Van Gelderen (Cambridge: Cambridge University Press, 2013), pp. 115–​133. For the role of passions in Pufendorf’s moral psychology and theory of sociability, see Heikki Haara, ‘Pufendorf on Passions and Sociability’, Journal of the History of Ideas, 77:3 (2016), pp. 423–​444. De jure naturae, i.4.8/​On the Law of Nature and Nations, p. 62.

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Human actions are initiated by understanding that provides guidelines for actions. Will ought to follow the judgement of the understanding but it can effectively choose to act otherwise as well. In other words, human will is free to choose whether to act according to the dictates of right reason, that is, the law of sociability. Notice that the will is not the solitary locus of human freedom. Pufendorf also considered the understanding to be a free (liberis) faculty in the sense that it is ‘under man’s control to pay close attention to the thing to be considered’ and make an accurate assessment of its ‘good and evil features’. With this remark Pufendorf aims to underscore that people are morally responsible for using their faculty of understanding effectually. Nevertheless, the understanding is not capable of a similar kind of effective freedom as the faculty of will. Understanding is a natural (naturalis) faculty in the sense that people cannot comprehend things ‘otherwise than as their images present themselves to the understanding; nor can the will keep the understanding from assenting to a proposition that appears clear and evident to it’.27 People have no choice in their perception of things. Accordingly, ‘since assent (assensus) or belief (fides) cannot but respond to the image apprehended by the understanding, a person cannot judge differently about a thing as he himself has seemed to perceive it. Nor is there any law by which someone rightly demands that he do otherwise –​just as no one can be wise from a bare and simple command’.28 Although Pufendorf does not develop any detailed account of the epistemology of belief, this passage clearly implies that internal consent that accompanies beliefs can never be acquired by mere coercion. It is important to note that although beliefs cannot be directly compelled, it is possible to employ coercive policies indirectly in order to induce people’s consideration. Pufendorf argues that there is ‘a place for cultivating and legislating’ about the rational part of the soul. ‘Those charged with the care of others’ should ensure that enough opportunities are available for thorough contemplation. Authorities may also employ penalties as an instructional means of inducing people to carefully reconsider the real conditions of things.29 Despite his defence of the freedom of human actions, Pufendorf does not promote the idea of liberty of actions without regard for its practical moral and political effects. His focus is not so much to show that human understanding always works successfully but to maintain that if people are not free to choose, they cannot be held responsible for their actions. A person’s beliefs must be

27 28 29

De jure naturae, i.3.2/​Political Writings, p. 109. De jure naturae, i.3.2/​Political Writings, pp. 109–​110. De jure naturae, i.3.2/​Political Writings, p. 110.

274 Haara interfered with when there are reasons to hold that those beliefs are mistaken or depraved. 2

Natural Religion

How far can political authorities employ coercion in matters of religious beliefs? Pufendorf’s answer to this question depends on what kind of religious convictions are being talked about. He recommends religious coercion in the case of natural religion and denounces it in the case of revealed religion. I will first examine Pufendorf’s account of natural religion and focus on revealed religion in the following section. There is a clear demarcation between the boundary of reason and revelation that are two sources of man’s knowledge. Natural religion, which is the basis of social and moral order, can be recognized through the natural light of reason without divine revelation.30 Natural religion ‘is confined to the sphere of this life; it has no effect of winning eternal salvation’.31 One of his most important contributions to modern moral and political philosophy was a sharp distinction between the laws of nature and moral theology. In his theory of natural law, Pufendorf is mainly interested in cooperation and correct behaviour in interpersonal relations. Partly for this reason, his approach to morality is often characterized as secular. Pufendorf makes a tripartite distinction between natural law duties toward God (ad Deum), towards other people (adversus alios homine), and the duties with regard to oneself (adversus seipsum). He omits treating natural duties towards God distinctly or extensively in De jure, exploring these duties explicitly mostly in De officio, which was written while he struggled to defend himself against accusations of atheism in Lund.32 In De jure, Pufendorf deals with man’s duties toward God in connection with the duties with regard to oneself that consist mainly of the cultivation of the mind (cultura animi). Because individuals are not innately aware of the duties they are bound by, they constantly need to educate their minds. Pufendorf sought to encourage his reader from the point of view of natural theological arguments, arguing that our prime duty with regard to ourselves is to form a correct belief of God 30 31 32

This is what Simone Zurbuchen defines as ‘secular reason’ in Pufendorf’s theory. Simone Zurbuchen, ‘Religious Commitment and Secular Reason’, in Natural Law and Toleration in the Early Enlightenment, ed. by Parkin and Stanton, pp. 6–​7. De officio, i.4.8. Michael Seidler, ‘Pufendorf’s Moral and Political Philosophy’, in The Stanford Encyclopedia of Philosophy, Winter 2015 Edition, ed. by Edward N. Zalta, 3.5.

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and his attributes. The belief in God as the creator and governor of this world is ‘the source of that calmness which suffuses from within the minds of men, and is furthermore the guarantee of all uprightness which should be shown toward other men, and without which no one can be said to have done a good deed with proper intent, nor can others be convinced of any one’s good purposes’.33 Pufendorf thus argues that the belief in God ‘should be implanted before all else in a properly educated mind, so all ideas contrary to it should be forbidden’.34 However, there is significant textual evidence indicating that Pufendorf regards people as extremely unequal in their capacity to grasp the correct natural theological propositions through rational reflection. For instance, although Pufendorf believes that living in the conviction of a punishing God provides a powerful incentive for obeying the commands of natural law and that it is God’s punishments that should be feared above all, we should not overemphasize the motivational role of divine punishments in his moral and political theory. There are three main reasons for this. First, because the immortality of the soul cannot be securely demonstrated by natural reason alone, Pufendorf is unwilling to rely heavily on punishments and rewards in the afterlife.35 Secondly, God’s retaliation ‘tends to proceed at a slow pace’, which gives malicious individuals a chance to explain it by other causes.36 Thirdly, in practice, the majority of humankind guide their actions ‘not by reason but on impulse, and trust their lust as reason, chiefly by their education and habits’; as a result, most individuals mistakenly fear civil punishments more than divinely ordained other-​worldly punishments.37 Most of all, Pufendorf does not rely heavily on the social effectiveness of the fear of divine punishment simply because he thinks that most people do not guide their actions by rationally calibrating the present benefits in relation to the long-​term benefits in the afterlife. Pufendorf maintains that if a person cannot independently reflect on how the precepts of natural religion can be derived by reason, he or she is not allowed to present one’s doubts in public. He argues in De officio that failing to understand the theoretical proposition of natural religion ‘is no excuse for 33 34 35

36 37

De jure naturae, ii.4.2/​On the Law of Nature and Nations, p. 232. De jure naturae, ii.4.4/​On the Law of Nature and Nations, p. 233. This led Leibniz to criticize Pufendorf and Thomasius as ‘Epicureans’. Thomas Ahnert, ‘Problematische Bindungswirkung: Zum “Epikureismus” im Naturrecht der deutschen Frühaufklärung’, in Das Naturrecht der Geselligkeit: Anthropologie, Recht und Politik im 18. Jahrhundert, ed. by Vanda Fiorillo & Frank Grunert (Berlin: Duncker & Humblot, 2009), pp. 39–​54. De officio, ii.5.9/​Duty of Man, p. 134. De jure naturae, vii.1.11/​On the Law of Nature and Nations, p. 965.

276 Haara atheism’.38 This idea is in line with Pufendorf’s treatment of the awareness of the rational demonstration of the principle of sociability in De jure. Theoretical exposition of natural law requires refined intellectual capacities and theoretical studies. Therefore, to present one’s doubts against the normative content of natural law in public is a sign of imprudence and foolhardiness. Pufendorf’s central aim is to convince his readers that sociability can be maintained only if most of us accept the moral opinion of authorities rather than acting on the basis of what we take to be truth. Since most people are naturally unsuited to cultivating their minds and to rationally grasping the correct natural theological propositions, political coercion is necessary in order to maintain an adequate conception of God in civil societies. The idea of natural theology as the foundation of morality is not restricted merely to Pufendorf’s natural law writings. In the first part of De habitu, he endorses the notion that the state is not founded for the sake of religion and the ruler has therefore a duty to respect the religious liberty of his citizens. Nevertheless, he simultaneously maintains that the sovereign is obliged to uphold natural religion that does not depend on revelation but can be demonstrated by natural reason.39 Not merely Christians but also ‘most of the Pagan Philosophers’ approve that ‘there is a Supream Being, the Author and Creator both of the Universe, and especially Mankind, which ought to be acknowledged and worshipped as such by Mankind, as they are Rational Creatures’.40 Everyone is obliged to perform one’s religious duties and worship God in his own person and cannot transfer the cultivation of his soul to others.41 As Kari Saastamoinen has argued, for Pufendorf, the doctrine of natural religion ‘is purely theoretical model the purpose of which is to define those religious ideas and practices which are indispensable for human society’, the natural religion is not meant to substitute Lutheranism ‘as the publicly maintained religious practise’.42 Pufendorf conceived of Lutheran Christianity as one of the most effective ways to habituate people to sociable ways of behavior.43 According to Pufendorf, Christian virtues ‘do as much as anything to dispose men’s minds to sociability’.44 Nevertheless, when speaking of natural 38 39 40 41 42 43 44

De officio, I.4.2/​Duty of Man, p. 39. De habitu, § 7. De habitu, § 1/​Of the Nature and Qualification, p. 12. De habitu, § 2. Kari Saastamoinen, The Morality of the Fallen Man: Samuel Pufendorf on Natural Law. (Helsinki: Societas Historica Finlandiae, 1995), p. 164. Ibid., pp. 45–​46. De officio, prefatio/​Duty of Man, p. 9.

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religion in De jure, Pufendorf’s discussion is not restricted to Christianity or Lutheranism in particular. His natural law theory presupposes that some form of belief in a monotheistic God is sufficient to render men capable of performing their moral and political duties. Pufendorf admits that eternal happiness can be achieved only through the Christian religion; yet he continues: [A]‌serious belief of any nature in the Divine Being and His providence, under whatsoever particular form or manner of worship, has the effect of rendering men more observant of their duty... [Muslims and pagans] because of their belief in a divine providence, show an active concern for decency and duty so that, so far at least as their outward acts are concerned, they do not seem to fall behind the majority of Christians.45 Peaceful social interaction in a large-​scale political society involves cooperation among distinct agents who uphold divergent religious convictions. Religious intolerance will have destructive social consequences. For that reason, natural law requires that citizens tolerate other people’s religious beliefs and practices: Base is also the view that it is allowable in religion and the worship of God to break any command of the natural law to another’s hurt. Instances of this are when some men believe that they should maintain an active hatred towards those who do not belong to our religion; that religion should be spread by sword; that faith should not be kept with men of a different belief, and no so-​called political friendship or acts of humanity should be shown them; or that every contact with such should be avoided as if they were unclean; that any crimes, treachery, perfidy, treason, rebellion, are lawful, nay, even praiseworthy, if they are done in the interest of religion.46 Mutual toleration implies recognizing the others as morally capable actors without demanding that they must renounce their religious identity. While natural theology made Pufendorf an advocate of mutual toleration within the framework of theism, broadly construed, it also made him an advocate of religious intolerance. Whereas words and actions fall under the sovereign’s authority, internal life is largely exempt from civil jurisdiction. Even though

45 46

De jure naturae, ii.4.3/​On the Law of Nature and Nations, p. 233. De jure naturae, ii.4.4/​On the Law of Nature and Nations, p. 237.

278 Haara the sovereign ought not to be directly concerned about a man’s beliefs unless they break forth into action, the refinement of natural theological beliefs has a place in it insofar as it serves as a necessary foundation of morality and civil societies. Pufendorf treats natural theology mainly as a political theorist. Most of all he is interested in social and political effects, arguing in De habitu that those individuals who do not show reverence towards God ‘act against the very Dictates of Reason, ought to be subject to Civil Punishments, since they strike at the very Foundation of Civil Societies’.47 The sovereign may forbid beliefs that animate actions which undermine civil interests. People who ‘attempt to deny publickly the Existence of a God, and his Providence, to set up a plurality of Gods; to worship fictitious Gods, or Idols in God’s stead, to spread abroad Blasphemies, or to worship the Devil, enter with him into a Compact, and such like Actions’ are unqualified to act as moral agents and should be punished by the magistrate.48 These beliefs are not punishable unless they break forth into external actions. Like his predecessors Spinoza, Hobbes and Grotius, Pufendorf maintains that the state has a right to regulate external exercise of religion in order to provide peace. Pufendorf believed in the idea that we are subject to God’s will and that governance morality is essential to the maintenance of a well-​functioning society. Therefore, those who publicly deny the rationally demonstrable notion of a monotheistic God, such as atheists and polytheists, are excluded from the domain of religious toleration. Political authorities must employ political coercion and discipline to ensure that the multitude appreciate, at least externally and publicly, God as an ultimate lawgiver and governor of the world. 3

Revealed Religion

So far, I have dealt with Pufendorf’s treatment of natural religion. Next, I shall explore what he says about human understanding in relation to religious beliefs concerning revealed religion. The convictions of revealed religion are conceptually in a different category from the rationally demonstrable truths of natural religion. In contrast to natural religion, religious beliefs concerning revealed religion belong to the freedom of an individual not to be delegated to the sovereign. Pufendorf’s numerous remarks against violent confessionalization in De habitu are most likely directed at Franco-​Catholic politics after the

47 48

De habitu, 48/​Of the Nature and Qualification, p. 103. See also De officio, I.4.2. De habitu, § 7/​Of the Nature and Qualification, p. 20.

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Revocation of the Edict of Nantes.49 Pufendorf attempted to refute the Catholic Counter-​Reformation and understood mutual toleration between different denominations mostly as a practical solution before the eventual reunification of Christianity.50 Pufendorf therefore also notes in Jus feciale that despite confessional differences among Christians, people should acknowledge that it is absurd to believe that ‘God should be any Ways favourable to those who think fit to serve him in a different Manner’.51 For our purpose it is important that when examining the limits of the sovereign’s authority in religious matters, Pufendorf concludes that a Christian prince is not obliged to spread his own religion by force (vi) if his citizens fulfil their political duties towards him.52 In several passages, he maintains that the kingdom of Christ need not be upheld by force like civil societies. For that reason there need not to be established a particular state, in order to propagate and preserve Truth, no more, than it is necessary, to set up a separate Commonwealth, where Philosophy and other Sciences are taught. For, it is the true Genius of Truth, and such her intrinsic vertue, as to be convincing in it self, provided she be but represented in her genuine Shape; and the fruits, which she produces for the benefit of Mankind, be dexterously proposed to the view of the World. But the divine Truth has, beyond all others, this particular prerogative, that by vertue, and with the assistance of God’s Grace our Minds are insensibly drawn into a Belief of those things, that otherwise seem to surpass human Understanding.53 The important point to be extracted from the above passage is that the truth of Christianity that exceeds natural reason must be acquired by the aid of the holy spirit.54 This resonates with Grotius’s idea that mere rational arguments for the truth of Christianity cannot produce belief without the assistance of God’s grace. Grotius therefore argues in De iure belli that one ought not to punish

49 50 51 52 53 54

See David Saunders, ‘Hegemon History: Pufendorf’s Shifting Perspectives on France and French Power’, in War, the State and International Law in Seventeenth-​Century Europe, ed. by Olaf Asbach and Peter Schröder. (Farnham: Ashgate, 2010), pp. 211–​230. For the political and religious context of Pufendorf’s writings on toleration, see Döring, ‘Samuel von Pufendorf and Toleration’, pp. 178–​185. Jus feciale § 2/​Divine Feudal Law, p. 13. De habitu, § 54. See also De habitu, § 43. De habitu, § 17/​Of the Nature and Qualification, pp. 35–​36. See also De habitu, § 33.

280 Haara those individuals who do not accept Christianity nor attempt to impose belief in Christ by compulsion.55 For Pufendorf, religious convictions concerning revealed religion belong to a different epistemological class than rationally demonstrable natural religion. This kind of idea is also implied in Pufendorf’s distinction between the commands of natural law that can be demonstrated by reason and divine positive laws that are beyond human understanding. For instance, referring to the Books of Maccabees in De jure, Pufendorf argues that it was completely right that Jews believed that they should rather suffer death than eat the flesh of swine.56 Since God’s purposes for issuing certain divine positive laws are beyond human understanding, it is beyond human capacity to understand the rules of God’s vindictive justice.57 For Pufendorf, some things in revealed religion are simply beyond reason: [T]‌he Mysteries of the Christian Religion, which transcend our Reason, these must be acquired by the assistance of Divine Grace (gratia divina), which is contrary to all Violence. ‘Tis true, a Prince may force a Subject to make an outward Confession by way of Mouth, to comply in his Behaviour, with his Commands, and to dissemble his Thoughts or to speak contrary to his Belief; but he can force no body to believe contrary his own Opinion. For we ought to believe with all our Hearts.58 Pufendorf does not believe that religious doctrines are entirely beyond reason. Theological claims must be supported by systematic scriptural analysis.59 For instance, his main purpose in Jus feciale is to demonstrate that confessional differences between Lutherans and Calvinists could be resolved through rational reflection and biblical analysis. In this sense, Pufendorf’s position differs from that of Christian Thomasius and Pierre Bayle, for whom faith was unsuited to rational reflection.60 Pufendorf quite consistently argues that the internal consent that accompanies the acceptance of Christian doctrine by the help of the holy spirit can by no means be attained through coercion. It is 55 56 57 58 59 60

Hugo Grotius, De Jure Belli ac Pacis Libri Tres, in quibus Juus Naturae & Gentium, item Juris Publici praecipua explicantur. Reproduction of the Edition of 1646, ed. by James Brown Scott (Washington: Carnegie Institution of Washington, 1913), ii.20.48. De jure naturae, ii.6.2. See also De jure naturae, ii.3.5. De jure naturae, ii.3.5. De habitu, § 3/​Of the Nature and Qualification, p. 15. See Seidler, ‘Pufendorf and the Politics of Recognition’, p. 242. See Ian Hunter, ‘The Tolerationist Programmes of Thomasius and Locke’, in Natural Law and Toleration in the Early Enlightenment, ed. by Parkin and Stanton, pp. 107–​137.

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worth noting that while the sovereign cannot coerce people to adopt religious beliefs, he may expel subjects whose religious beliefs or practices differ from the established state religion.61 However, Pufendorf’s treatment of freedom from religious coercion is not incompatible with his defence of the sovereign right to banish or non-​admit heretics on the grounds of their religion. When a sovereign expels dissenters or denies them entry, he practices religious intolerance but not forced conversion.62 However, it should be noted that Pufendorf does not rule out the use of force entirely. It is part of the paternal authority to take care of the religious education of children. Pufendorf admits that teaching duties cannot be performed without coercion especially among young students.63 Youth should receive instruction ‘in the true knowledge of God, and prepare their Minds for the receiving of the Christian Doctrine.’ It is too ‘dangerous, to leave young People to their own Inclinations, till they may be capable, by the Strength of their own Reason, to learn their Duty towards God’.64 Pufendorf recognizes that education and social pressure do affect what people think. To some extent, acquiring religious belief is a compulsory educational process. Notice that Pufendorf is speaking here of the education of children. Before people start to desire the gospel, it must first be taught to them.65 If the basics of the doctrines of Christianity are not implanted at school, ‘it cannot scarce be expected, that Men, when grown up, should receive much benefit by publick Sermons’.66 When children are instructed on the doctrines of Christianity, Pufendorf argues, the use of coercion is occasionally necessary. In the case of adults, however, he does not directly refer to compulsion. Unlike children who are under paternal authority, every adult is ‘accountable to God for his Religion, and answerable for his own Soul, whose Salvation cannot absolutely be committed to any Body’.67 Therefore, a ‘wife is not obliged to follow her husband’s religion, nor the Servant the Master’.68 The basic knowledge for the obtaining of salvation can be acquired rather easily.69 With the help of the holy spirit a faith emerges fairly autonomously within the subject. For Pufendorf, faith does

61 62 63 64 65 66 67 68 69

De habitu, § 50. Ahnert, ‘Samuel Pufendorf and Religious Intolerance’, pp. 23–​24. De habitu, § 20. De habitu, § 4/​Of the Nature and Qualification, p. 16. De habitu, § 21. De habitu, § 43/​Of the Nature and Qualification, p. 96. De habitu, § 54/​Of the Nature and Qualification, p. 118. De habitu, § 32/​Of the Nature and Qualification, p. 68. De habitu, § 33/​Of the Nature and Qualification, p. 73. See also De habitu, § 36.

282 Haara not necessarily entail demonstrative knowledge, and the holy spirit exercises an influence that enables the acknowledgement of the truth of Christianity.70 One recurring line of argument that Pufendorf uses against religious coercion is explicitly biblical. Neither the gospels nor the example of Jesus give any indication that force is a proper way to bring people to true Christian faith.71 Efforts to compel people to adopt sincere religious convictions by force is contrary to the spirit of Christianity. Moreover, Pufendorf holds that the sovereign can actually know very little about the innate religious convictions of his subjects. Pufendorf’s emphasis on personal piety is not surprising from the point of view of his interest in pietism. He retained a life-​long interest in the importance of the moral dimensions of religion and was involved in a pietistic lay gathering called collegia pietatis.72 For Pufendorf, civil sovereignty does not reach to the kingdom of Christ and true Piety [solidam pietatem] being not to be implanted by Human Force, which is insufficient to procure God’s Grace, or raise those inward Motions which are chiefly acceptable to God Almighty; and without which, all our exterior Actions, that may be enforced by a Civil Authority, are to be deem’d vain and fruitless. For, the Kingdom of Christ being a Kingdom of Truth, it requires no Civil Power or Force; For, Truth, by the help of Christian Doctrine, and with the assistance of God’s Grace, does gently insinuate it self into the Hearts of Men, and the Rewards or Punishments, which those are to receive, that either accept or despise this Doctrine, are reserved for the Life to come.73 The above demarcation between internal true piety and external obedience to civil laws is not meant to deny that the proper understanding of Christianity and religious devotion increases sociability and political stability. Simone Zurbuchen has shown that Pufendorf defends Lutheran Christianity as a means of turning men into political animals. Unlike Machiavelli, Pufendorf argues that Christian religion does not contradict secular politics and the interest of the state; instead, it predisposes citizens to fulfil their duties and obey their rulers.74 Indeed, Pufendorf argues that it is useful for the internal 70 71 72 73 74

This has interesting parallels to Hobbes’s idea of the acknowledgement of God. See Risto Saarinen, Recognition and Religion: A Historical and Systematical Study (Oxford: Oxford University Press, 2016), pp. 110–​113. De habitu, § 20. See also De habitu, § 28; De habitu, § 49. Döring, ‘Pufendorf–​Studien’, pp. 102–​103. De habitu, § 29/​Of the Nature and Qualification, p. 57. Zurbuchen, ‘Samuel Pufendorf’s Concept of Toleration’, pp. 166–​172.

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peace of states that ‘the pure and sincere Christian religion flourishes in the state, and that public schools teach dogmas consistent with the purposes of states’.75 However, Pufendorf is clearly sceptical about the sincerity of the religious convictions of the majority of the people. Accordingly, ‘most men embrace the Christian religion from no personal conviction so much as from the custom and usage of the state in which they were born’ and only a few individuals ‘take it to their heart to improve their character according to its direction’.76 Moreover, he explicitly refutes the idea that either civil discipline or church discipline plays a role in the acquisition of genuine religious beliefs. Even after undergoing the penalties of the church some individuals ‘retain in their hearts the same vicious Inclinations, or sometimes grow even more stubborn and bold’.77 Only with the assistance of the holy spirit do people come to believe the truth of Christian revelation. While endorsing the role of divine grace in salvation, in Jus feciale, Pufendorf argues against the strong doctrine of predestination by underlining that the human will is free to accept or refuse the grace of God.78 This argument has to be situated in the context of the debate between Lutherans and Calvinists that concerned the role of the free will in salvation and predestination.79 Pufendorf views a person as rather passively undergoing the immediate intervention of the holy spirit, yet he still wishes to stress the role played by human will and understanding. Having committed himself to the idea that the salvation of one’s soul depends on one’s free decision to assent to God’s grace, Pufendorf cannot argue that the sovereign may use force in order to change or renounce beliefs concerning revealed religion. 4

Conclusion

The textual material covered in this chapter illustrates that there is some tension in Pufendorf’s account of human agency. Because human understanding is naturally free, fear and compulsion through force alone is insufficient to bring about a change of mind. However, while Pufendorf defends the idea that

75 76 77 78 79

De officio, 2.11.4/​Duty of Man, p. 152. De jure naturae, ii.4.3/​On the Law of Nature and Nations, p. 233. De habitu, § 47/​Of the Nature and Qualification, p. 101. Jus feciale § 67. Simone Zurbuchen, ‘Introduction’, in Samuel Pufendorf, The Divine Feudal Law: Or, Covenants with Mankind, Represented, tr. by Theophilus Dorrington and ed. by Simone Zurbuchen (Indianapolis: Liberty Fund, 2002), pp. ix-​xix, at pp. xiii–​xiv.

284 Haara human understanding is naturally free, he does not reject coercive policies entirely. On the one hand, the view that men are in large measure responsible for their moral actions was one of Pufendorf’s deepest convictions. The freedom of human actions is a necessary condition for moral accountability. The implication of Pufendorf’s defence of the freedom of human actions is that human beings as free creatures must judge for themselves. On the other hand, he argues that though belief cannot be compelled it is possible to compel consideration. Certain beliefs that are necessary for the maintenance of civil societies must be enforced by the state. Pufendorf’s moral theory presupposes some form of monotheistic natural theology as a precondition for morality and political stability. While all normal adults ought to rationally acknowledge God’s power and authority over them, Pufendorf’s treatment of natural religion relies heavily on the idea that most individuals are not familiar with the theoretical propositions of natural religion. It is impossible to directly coerce a person’s beliefs; nevertheless, force is indirectly helpful as an instructional tool in bringing the multitude to appreciate God as a supreme lawgiver. Pufendorf does not promote the idea that people ought to seek moral truths independently. If people fail to recognize God’s authority, the state, with the help of the church, may correct their miscarried natural reasoning. Even more importantly, although the sovereign ought not to be directly concerned with the internal beliefs of citizens, civil authorities must take care that people show respect to God as a minimum in their external actions. The notion of incoercible belief plays a larger role in Pufendorf’s reflection about the legitimate use of force to get people to hold genuine religious beliefs concerning revealed religion. The state and church ought not to attempt to change people’s innate religious convictions by force. Pufendorf emphasizes the cognitive autonomy required for salvation. Because the essence of a true religion consists of inward convictions, attempts to change people’s religious convictions by external force will always fail. Pufendorf does not oppose forced conversions on the basis that it is necessarily wrong to prevent people from finding autonomously the most convincing rational arguments to salvation. Rather, he reserves the freedom from coercion merely for those religious beliefs that are supranatural and require communion with the holy spirit. Civil and ecclesiastical authorities cannot force people to adopt beliefs that require the special assistance of the holy spirit, which people are free to accept or refuse.

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Select Bibliography



Primary Literature



Secondary Literature

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Grotius, Hugo, De Jure Belli ac Pacis Libri Tres, in quibus Juris Naturae & Gentium, item Juris Publici praecipua explicantur. Reproduction of the Edition of 1646, ed. by James Brown Scott. Washington: Carnegie Institution of Washington, 1913. Pufendorf, Samuel, De Jure Naturae et Gentium (1672), Gesammelte Werke 4, ed. by Frank Böhling. Berlin, 1998. The Political Writings of Samuel Pufendorf. Ed. by Craig L. Carr, tr. by Michael J. Seidler. Oxford: Oxford University Press, 1994. Pufendorf, Samuel, De Officio Hominis et Civis juxta Legem Naturalem Libri Duo (1673), Gesammelte Werke 2, ed. by Gerald Hartung. Berlin: Akademie Verlag, 1997. Pufendorf, Samuel, The Whole Duty of Man, According to the Law of Nature. Natural Law and Enlightenment Classics, ed. by Ian Hunter and David Saunders, tr. by Andrew Tooke. Indianapolis: Liberty Fund, 2003. Pufendorf, Samuel, De Habitu Religionis Christianae ad Vitam Civilem (1687). Gesammelte Werke 6, ed. by Wilhelm Schmidt-​Biggemann. Berlin: Akademie Verlag, 2016. Pufendorf, Samuel, Of the Nature and Qualification of Christian Religion, in Reference to Civil Society. Natural Law and Enlightenment Classics, tr. by Jodocus Crull, ed. by Simone Zurbuchen. Indianapolis: Liberty Fund, 2002. Pufendorf, Samuel, Jus feciale divinum (1695), Gesammelte Werke 9, ed. by Detlef Döring. Berlin: Akademie Verlag, 2004. Pufendorf, Samuel, The Divine Feudal Law: Or, Covenents with Mankind, Represented. Natural Law and Enlightenment Classics. Tr. by Theophilus Dorrington, ed. by Simone Zurbuchen. Indianapolis: Liberty Fund, 2002.

Ahnert, Thomas, ‘Problematische Bindungswirkung: Zum “Epikureismus” im Naturrecht der deutschen Frühaufklärung’, in Das Naturrecht der Geselligkeit: Anthropologie, Recht und Politik im 18. Jahrhundert, ed. by Vanda Fiorillo & Frank Grunert. Berlin: Duncker & Humblot, 2009, pp. 39–​54. Ahnert, Thomas, Samuel Pufendorf and Religious Intolerance, in Natural Law and Toleration in the Early Enlightenment, ed. by Jon Parkin & Timothy Stanton. Oxford: Oxford University Press, 2013, pp. 15–​33. Dawson, Hannah, ‘Natural Religion: Pufendorf and Locke on the Edge of Freedom and Reason’, in Freedom and the Construction of Europe. Volume I: Religious Freedom and Civil Liberty, ed. by Quentin Skinner & Martin Van Gelderen. Cambridge: Cambridge University Press, 2013, pp. 115–​133.

286 Haara Döring, Detlef, ‘Samuel von Pufendorf and Toleration’, in Beyond the persecuting society: Toleration before the Enlightenment, ed. by J.C. Laursen and C.J. Nederman. Philadelphia: University of Pennsylvania Press, 1998, pp. 178–​185. Döring, Detlef, Pufendorf-​Studien. Beiträge zur Biographie Samuel von Pufendorfs und zu seiner Entwicklung als Historiker und theologischer Schriftsteller. Berlin: Duncker & Humblot, 1992. Haara, Heikki, ‘Pufendorf on Passions and Sociability’, Journal of the History of Ideas, 77:3 (2016), pp. 423–​444. Harris, Ian, ‘John Locke and Natural Law: Free Worship and Toleration’, in Natural Law and Toleration in the Early Enlightenment, ed. by Jon Parkin & Timothy Stanton. Oxford: Oxford University Press 2011, pp. 59–​105. Holland, Ben, ‘Pufendorf’s Theory of Facultative Sovereignty’, History of Political Thought, 33:3 (2012), pp. 427–​454. Hunter, Ian, ‘The Tolerationist Programmes of Thomasius and Locke’, in Natural Law and Toleration in the Early Enlightenment, ed. by Jon Parkin & Timothy Stanton. Oxford: Oxford University Press, 2011, pp. 107–​137. Mendus, Susan, ‘Locke: Toleration, Morality and Rationality’, in John Locke: A Letter Concerning Toleration in Focus, ed. by John Horton & Susan Mendus. London: Routledge, 1991, pp. 147–​162. Pink, Thomas, ‘Natural Law and the Theory of Moral Obligation’, in Psychology and Philosophy: Inquiries into Soul from Late Scholasticism to Contemporary Thought, ed. by Sara Heinämaa & Martina Reuter. Dordrecht: Springer, 2009, pp. 97–​114. Saarinen, Risto, Recognition and Religion: A Historical and Systematical Study, Oxford: Oxford University Press, 2016. Saastamoinen, Kari, The Morality of the Fallen Man: Samuel Pufendorf on Natural Law. Helsinki: Societas Historica Finlandiae, 1995. Saunders, David, ‘Hegemon History: Pufendorf’s Shifting Perspectives on France and French Power’, in War, the State and International Law in Seventeenth-​Century Europe, ed. by Olaf Asbach & Peter Schröder. Farnham: Ashgate, 2010, pp. 211–​230. Seidler, Michael, ‘Pufendorf and the Politics of Recognition’, in Natural Law and Civil Sovereignty. Moral Right and State Authority in Early Modern Political Thought, ed. by Ian Hunter and David Saunders. London: Palgrave Macmillan, 2002, pp. 235–​251. Seidler, Michael, ‘The Politics of Self-​Preservation: Toleration and Identity in Pufendorf and Locke’, in Early Modern Natural Theories: Context and Strategies in the Early Enlightenment, ed. by Tim J. Hochstrasser and Peter Schröder. Dordrecht: Kluwer Academic Publishers, 2002, pp. 227–​255. Waldron, Jeremy, ‘Locke: Toleration and the Rationality of Persecution’, in Justifying Toleration: Conceptual and Historical Perspectives, ed. by Susan Mendus. Cambridge: Cambridge University Press, 1988, pp. 61–​86.

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Zurbuchen, Simone, ‘Samuel Pufendorf’s Concept of Toleration’, in Difference and Dissent. Theories of Toleration Before Locke, ed. by Cary J. Nederman und John Christian Laursen, Lanham: Rowman & Littlefield 1997, pp. 163–​184. Zurbuchen, Simone, ‘Introduction’, in Samuel Pufendorf, The Divine Feudal Law: Or, Covenants with Mankind, Represented, tr. by Theophilus Dorrington and ed. by Simone Zurbuchen. Indianapolis: Liberty Fund, 2002, pp. ix-​xix. Zurbuchen, Simone, ‘Religious Commitment and Secular Reason’, in Natural Law and Toleration in the Early Enlightenment, ed. by Jon Parkin & Timothy Stanton. Oxford: Oxford University Press, 2013, pp. 1–​14.

­c hapter 13

Moral Entities, Divine Will and Natural Law According to Pufendorf Denis Ramelet 1

Introduction

Pufendorf’s treatise of natural law De jure naturae et gentium starts surprisingly, at least for positivist jurists, with a chapter on ontology explicitly claiming to be such.1 Pufendorf states that beside natural beings (entia physica) –​human beings, other living creatures as well as inanimate beings –​there exist ‘moral beings’ (entia moralia), which are all those moral and legal qualities –​in particular political institutions, social roles as well as all rights and obligations –​ that are attached to or imposed on natural beings and that form the matter of morality and of law. For instance, Angela Merkel is a natural being, but her status as the Federal Chancellor of Germany is a moral being. In this first chapter, Pufendorf specifically states: [Moral entities] do not arise out of the intrinsic nature of the physical properties of things, but they are superadded, at the will of intelligent entities, to things already existent and physically complete […] and, indeed, come into existence only by the determination of their authors. And these authors give them also certain effects, which they can also remove at their own pleasure without any accompanying change in the object to which they had been added.2 Pufendorf specifies that these intelligent beings who make moral beings appear and disappear according to their goodwill are first God and then human beings.

1 De jure naturae, i.1 : De origine et varietate entium moralium. –​The present chapter was written as part of the snsf research project 100012_​159481 on Samuel Pufendorf. We gratefully acknowledge the support of the snsf. 2 De jure naturae, i.1.4. All Pufendorf quotes in English are taken from: Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo, transl. by C.H and W.A. Oldfather, Oxford, 1934. All Pufendorf quotes in Latin are taken from: Samuel Pufendorf, De jure naturae et gentium (Liber primus –​Liber quartus), ed. by. F. Böhling (Berlin: Akademie Verlag, 1998).

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The introduction of this distinction between physical and moral beings is generally considered an important innovation in legal and moral theory, and it has given rise to discussions as to the nature and content of this extraordinary conception of morality and law. Since Pufendorf so emphatically claims that this imposition is a free choice (ex arbitrio) and that the lawgiver has freedom of will (libertas voluntatis), it seems reasonable to conclude that Pufendorf, just like, for example, Suárez before him, was a voluntarist. In other words, in stark contrast to Grotius, Pufendorf made the natural law dependent on God’s will, rather than on man’s rational nature. In this chapter it will be argued that if Pufendorf is a voluntarist in this sense, he nonetheless is a voluntarist of a very special kind. In the end we will wonder if the doctrine of the entia moralia would not allow Pufendorf to move between –​and perhaps beyond –​the voluntarist-​naturalist divide, and thereby importantly contribute to the ongoing debate between theologians, jurists, and philosophers about their competences in the field of natural law. 2

Is Pufendorf a Voluntarist?

The above quoted statement as well as others that we will examine, asserting the independence of moral beings from natural beings and their mode of establishment, have led many authors, and, as a matter of fact, not the least significant, to regard Pufendorf as an uncompromising voluntarist, a thoroughly anti-​naturalist (be this praised or blamed). According to Knud Haakonssen, ‘there is no general theoretical connection between natural and moral goods; it is not a matter of logical inference from one to the other … This is the core of Pufendorf’s voluntarism’.3 Kari Saastamoinen mentions, as for him, ‘the so-​called moral entities, which Pufendorf distinguishes sharply from physical entities’ and adds futher: ‘[T]‌he sphere of moral entities is still fundamentally distinct from the physical one. Moral entities “do not arise from the intrinsic substantial principles of things” ’.4 Simone Goyard-​Fabre writes that

3 K. Haakonssen, Natural Law and Personhood: Samuel Pufendorf on Social Explanation, Max Weber Lecture, (European University Institute, Florence, 2010), p. 2. 4 K. Saastamoinen, ‘Liberty and Natural Law Rights in Pufendorf’s Natural Law Theory’, in Transformations in Medieval and Early-​Modern Rights Discourse, ed. by V. Mäkinen and P. Korkman (Dordrecht: Springer, 2006), pp. 225–​256, in part. p. 228–​229.

290 Ramelet ‘jusnaturalism proves to be torn between Grotian rationalism and Pufendorfian voluntarism.’5 This idea of voluntarism can also be found in Pierre Laurent’s work, even though the word is not used. He speaks of a radical independence of created things and imposed moral beings, based on the fact that moral beings find their origin in no internal principle of the substance of things. ‘Barbeyrac has understood this so well that he uses it to justify his translation of the Latin word impositio with the French word “institution”. The latter term, he writes, expresses quite faithfully “what is invested and established as opposed to what comes from nature” ’.6 The argument here is the opposite of any type of naturalism. More recently, eventually, Thor Inge Rørvik mentions ‘Pufendorf’s … firm distinction between entia moralia and entia physica’ and, shortly after this, mentions ‘the voluntaristic theology’ promoted by Pufendorf.7 As we will now discuss, there is a tendency to exaggerate Pufendorf’s voluntarism. It is not that Pufendorf would not be a voluntarist at all: he is undeniably one. Yet, he is not as much as these authors seem to believe he is (as other authors do, whom we will discuss in the next section). However, before examining the texts which, in our view, seem to temper Pufendorf’s voluntarism, we are going to review, in an order that we deem logical, Pufendorf’s key assertions about moral beings and their implications. 3

The Pufendorfian Doctrine of Moral Beings and Its Consequences

To start with, here is Pufendorf’s definition of moral beings: We seem able, accordingly, to define moral [entities] (entia moralia) most conveniently as certain modes (modi), added to [natural] things or motions (rebus aut motibus physicis), by intelligent beings, primarily to direct and temper the freedom of the voluntary acts of man, and thereby to secure a certain orderliness and decorum in civilized life.8 5 S. Goyard-​Fabre, Les embarras philosophiques du droit naturel (Paris: Vrin, 2002), p. 97 (our translation). In at least three other passages in the same book, she hints at Pufendorf’s ‘voluntarism’ (pp. 84, 90 and 96). 6 P. Laurent, Pufendorf et la loi naturelle (Paris, Vrin, 1982), pp. 124–​125 (our translation). 7 T.I. Rørvik, ‘Samuel Pufendorf –​Natural Law, Moral Entities and the Civil Foundation of Morality’, in Contemporary Philosophy. A New Survey, vol. 12: Philosophy of Justice, ed. by G. Fløistad (Dordrecht: Springer, 2015), pp. 61–​73, in part. p. 70. 8 De jure naturae, i.1.3.

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Who are these ‘intelligent beings’ who ‘super add’ moral beings to natural beings? You may justly call the Great and Good God their maker, who surely did not will that men should spend their lives like beasts without civilization and moral law, but that their life and actions should be tempered by a fixed mode of conduct, which was impossible without moral entities. Nevertheless, the majority of them have been superadded (superaddita) later at the pleasure of men themselves (arbitrio ipsorum hominum), according as they felt that the introduction of them would help to develop the life of man and to reduce it to order.9 The most fundamental moral beings are superadded to natural beings by God: this is natural law. Afterwards, men ‘superadd’ to natural beings a second layer of moral beings, which are, to Pufendorf, more numerous but less fundamental: this is positive law. What is then the way of producing moral beings? ‘Now as the original way of producing [natural] entities (entia physica) is creation (creatio), so the way in which moral entities (entia moralia) are produced can scarcely be better expressed than by the word imposition (impositionis).’10 What does Pufendorf mean by ‘imposition’? [Moral entities] do not arise out of the [intrinsic properties of the natural things] (non ex principiis intrinsecis substantiae rerum proveniunt), but they are superadded (superaddita), at the will of intelligent entities, to things already existent and [naturally] complete (rebus jam existentibus & physice perfectis), and to their natural effects, and, indeed, come into existence only by the determination of their authors. And these authors give them also certain effects, which they can also remove at their own pleasure without any [natural] change (nulla mutatione physica) in the [thing] (re) to which they had been added (superadditi).11 We can observe that, for Pufendorf, the term ‘imposition’ is simply the substantive denoting, for intelligent agents, the fact of superadding by their own will a moral being to a natural being. Moreover, we wish to draw attention to one of Pufendorf’s statements which does not have the scope it seems to have, as we 9 10 11

De jure naturae, i.1.3. De jure naturae, i.1.4. De jure naturae, i.1.4.

292 Ramelet will later on argue: ‘[Moral entities] do not arise out of the [intrinsic properties of the natural things].’ Having examined how moral beings appear, let us analyze how they disappear. The jurist Pufendorf logically applies what jurists call the principle of ‘congruent forms’. Since the origin of moral beings is due to imposition, this same imposition regulates their duration and their changes. If the imposition is revoked, moral beings disappear as suddenly as they had appeared. Moral beings that have been produced by divine imposition can only disappear according to God’s will. Those that stem from human will disappear according to human will. Pufendorf makes it clear that the disappearance of moral beings does not in any way impact the substance of natural beings. A moral being could never have the virtue of a natural quality, he says. On this issue, a somewhat controversial passage is worth quoting: Hence it is folly to believe, that, if any [public role] (persona) is imposed (imponatur) upon an individual, by this mere imposition (nudam impositionem moralem) a permanent moral character has been given him (characterem aliquem indelebilem imprimi). Thus, if a commoner become a noble, he acquires merely new rights, but his substance and [natural] qualities (substantia & qualitates physicae) are changed not one whit. If a noble be expelled from his order, he loses merely his rights; all of his natural endowments remain unimpaired.12 Here Pufendorf first attacks a mythical conception of nobility, according to which noblemen would have a different natural constitution from commoners (for instance, they would have blue blood). However, through an implicit reference to the Catechism of the Council of Trent,13 Pufendorf also attacks the Catholic conception of priesthood, which considers that the sacrament of the order confers to the priest an indelible nature: Est autem character veluti insigne quoddam animae impressum, quod deleri numquam potest, eique perpetuo inhaeret (‘This nature is thus like a mark imprinted in the soul, which cannot be erased, and which is always adherent to it’). Against these ontological conceptions of the nobility and clergy, Pufendorf advocates a purely functionalist conception: the nobility and the clergy are only social functions, nothing more. Thus Pufendorf’s ontological innovations here take on a very significant ideological tinge, preparing the ground to Kant’s

12 13

De jure naturae, i.1.23. Chap. 14, § 10.

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criticism of the ‘groundless prerogative’ (grundloses Prärogativ) represented by hereditary nobility.14 If we summarize what we have discussed so far, God first creates all natural beings, then divine will ‘imposes’ on them a first layer of moral beings, before human will ‘imposes’ a second layer of moral beings. The imposition of moral beings, just like their abolition, produces no natural alteration in natural beings, at least no direct and immediate alteration.15 Eventually and above all, ‘[moral entities] do not arise out of the [intrinsic properties of the natural things]’. These excerpts from the first chapter of De jure naturae et gentium may give the impression that divine will and then human will arbitrarily impose moral beings on natural beings. This impression of arbitrary voluntarism can still be reinforced by the statement, in the following chapter, of the famous Pufendorfian theory of the moral indifference of natural acts: for instance, the natural movements constituent of adultery are devoid of any intrinsic moral qualification and only acquire some –​a negative one, in this case –​ by the imposition of the law prohibiting adultery. It is this theory, above all, that brought down on Pufendorf the wrath of quite a few Lutheran theologians from Northern Europe, for its suggestion that adultery was not naturally vicious.16 Yet that is precisely what Pufendorf wishes to emphatically deny. There is no extrinsic principle outside of God that could determine what is morally right or wrong: [S]‌ince good repute (honestas), or moral necessity, and turpitude (turpitudo), are affections (affectiones) of human actions arising from their conformity or non-​conformity (convenientia aut disconvenientia) to some norm or law (norma seu lege), and law is the bidding of a superior (lex vero sit jussum superioris), it does not appear that good repute or turpitude can be conceived to exist before law, and without the imposition of a superior (ante legem & citra superioris impositionem). And, indeed, they who set up an eternal rule (aeternam regulam) for the morality of human actions, beyond the imposition of God (extra impositionem divinam),

14 Kant, Rechstlehre, 2er Theil (Das öffentliche Recht), 1er Abschnitt (Das Staatsrecht), Allgemeine Anmerkung D (Akademie-​Ausgabe, vol. vi, p. 329). 15 However, those who lose their status and fall into precariousness may become ill. 16 Going against Melanchthon’s conviction: ‘adulterium est turpe’, Philip Melanchthon, Commentarius de anima (Wittenberg, 1542), S3r –​‐‑v. and even more importantly against Luther’s opinion that an adulterer signs his own death sentence, see Martin Luther, Commentary on the sermon on the mount, Luther Werke, 21: 94, 95. (January 1532).

294 Ramelet seem to me to do nothing other than to join to God some co-​eternal extrinsic principle (principium aliquod coaeternum extrinsecum) which He Himself had to follow in the assignment of forms of things.17 In these lines, implicitly aimed at Grotius, not only do we find an allusion to the Cartesian doctrine that God created eternal truths,18 but also a hint at Plato’s demiurge –​acting as a foil –​since he has to follow the ideas by assigning things their forms, contrary to the real God. Pufendorf continues: All, furthermore, admit that God created all things, man included, of His free will (liberrima voluntate); it must follow, then, that it lay within His own pleasure (beneplacito) to assign whatever nature He wished to this creature whom He was about to create. How, then, can an action of man be accorded any quality (affectio), if it takes its rise from an extrinsic and absolute necessity (ex necessitate intrinseca & absoluta), without the imposition and pleasure of God (extra Dei impositionem et beneplacitum)? On this argument, in very truth, all the movements and actions of man, if every law both divine and human be removed, are indifferent.19 The statement that natural acts are morally indifferent until the imposition of law is in line with Pufendorf’s voluntaristic conception of God: in the act of creation, far from being subject to ‘some co-​eternal extrinsic principle’, as Grotius and the Stoics believe it to be, God gives each being the quality he judges appropriate, according to his free will. The Pufendorfian doctrine on the moral indifference of natural acts prior to the imposition of law, added to the notes of the first chapter about the division between natural and moral beings, (in particular the assertion according to which ‘[moral entities] do not arise out of the [intrinsic properties of the natural things]’), tends to suggest that the arbitrary voluntarism operating in the

17 18

19

De jure naturae, i.2.6. Replies to the Fifth Objections (at vii, p. 380) and Replies to the Sixth Objections, n° 6 and 8 (at vii, p. 431–​433 and 435–​436). The theme of the creation of eternal truths is not only addressed by Descartes in the Replies to Objections, but also in the Discours (at vi, p. 38 and 41), in the Principia (i, § 22 and 24) and even more in his correspondence, particularly in the letters to Mersenne from Spring 1630 (see the table of occurrences established by J.-​L. Marion, Sur la théologie blanche de Descartes (Paris: Presses Universitaires de France, 1981), p. 270–​271). De jure naturae, i.2.6.

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act of creation of physical beings is also to be found in the act of imposition of moral beings. This is indeed what the above-​mentioned authors seem to assume. It is what other authors also think, starting with Leibniz, in his Opinion on the Principles of Pufendorf (1706). 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 …; and it is right that our author is reproached by theologians when he maintains the contrary; … So that no one will maintain that justice and goodness originate in the divine will, without at the same time maintaining that truth originates in it as well: an unheard-​of paradox by which Descartes showed how great can be the errors of great men; as if the reason that a triangle has three sides … is that God has willed it so. 20 Craig McFarlane echoes Leibniz’s criticism: ‘God could have imposed a different set of laws on the world –​indeed, he could have imposed the complete opposite set of laws on the world. For instance, rather than commanding sociality, God could have commanded sociopathy.’21 The core of Leibniz’s polemic against Pufendorf is to argue that for a voluntarist ‘the laws of nature could have been anything at all, including evil, which is absurd’.22 In the same line of thinking, Pauline Westerman is by far the most virulent against Pufendorf’s voluntarism in her study of the decline of scholastic natural law: ‘Pufendorf denies that nature can be considered as the basis of natural law. It is not even a necessary foundation of natural law; nature has nothing to do at all with natural law! This is quite disturbing for a man who occupied a chair in natural law. … This is an extraordinary view for a natural law theorist. The creation by itself is no longer the basis for natural law’.23 Eventually, instead of exalting the absurd consequences that voluntarism might lead to, Ian Hunter concentrates on the effects that Pufendorf apparently intended with his doctrine of the entia moralia. In Rival Enlightenments, Hunter sees Pufendorf perform ‘a remarkable anti-​ metaphysical tour de 20 21 22 23

G. W. Leibniz, Political Writings (Cambridge: Cambridge University Press, 1988), p. 64–​75, in part. p. 71–​72. C.J. McFarlane, Early Modern Speculative Anthropology, diss. (Toronto, York University, 2014), p. 178–​179. Ibid., p. 179, n. 18. P. Westerman, The Disintegration of Natural Law Theory (Leiden, Brill, 1998), p. 193–​194.

296 Ramelet force’, a powerful attack on ‘the whole program of deriving moral duties from a moral nature embedded in the person and acceded to through reflection on divine or transcendent reasons’. The physical reality is the world of substances, the moral world that of imposition. Against the rationalist thesis of the participation in God’s reason, here is the belief that the knowledge of the moral laws stems from looking into the historical being of man.24 Hunter has deepened this interpretation in his recent article on Pufendorf’s entia moralia doctrine: ‘[T]‌he definitive features of Pufendorf’s natural law have remained opaque to those approaching it via theological and philosophical methods, that is, via the introspective retrieval of norms embedded in human nature; since access to the contents of Pufendorf’s natural law is conditional on the displacement of these methods by those of an erudite empiricism’.25 4

Pufendorf Reduces the Effects of His Doctrine of Moral Beings by the Notion of Hypothetical (or Conditional) Necessity

However, this resolutely voluntarist interpretation of the Pufendorfian doctrine of moral beings, maintained by the authors we have quoted so far, appears to be invalidated in other passages of De jure naturae et gentium. By the end of the first chapter devoted to moral beings, Pufendorf already writes: [T]‌he imposition which produces real moral persons (personas morales) is not at all a free (libera) thing, but it should presuppose such [natural] qualities (ejusmodi qualitates praesupponere) as are appropriate, so that some real benefit may thereby accrue to mankind; and he who has no 24

25

I. Hunter, Rival Enlightenments. Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2003; 1st ed. 2001), pp. 164–​165. And on p. 170: ‘The key to Pufendorf’s detranscendentalising of moral and political philosophy, therefore, lies in his voluntaristic rejection of transcendent-​objective moral norms. This does not mean, however, that his voluntarism constitutes a rival theory of moral truth to the rationalist one championed by Leibniz and the Lutheran neoscholastics. For the effect of Pufendorf’s theological voluntarism is not to launch a (possibly) true theory of man’s moral nature; rather it is to transform the manner in which philosophers will accede to truth in this domain. If it is accepted that man’s moral nature is a status imposed on him by God –​and is not a form of rational being shared with God’s –​then man must come to the knowledge of the moral laws from within the confines of this ungrounded ‘historical’ nature.’ I. Hunter, ‘The invention of human nature: the intention and reception of Pufendorf’s entia moralia doctrine’, History of European Ideas, 45/​7 (2019), pp. 933–​952,at p. 937.

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respect for this consideration in constituting persons, should be regarded as insulting mankind with his recklessness and folly. So Caligula might have made a worthless and stupid man consul, provided he was a Roman citizen and knew enough to perform at least the routine functions of that office. But to give the consulship to his horse Incitatus, was sheer madness and silly impudence.26 Thus, natural beings do not tolerate the imposition of any moral beings, but only of those that are ‘appropriate’.27 Nonetheless, we will see that natural beings are not only reluctant to have imposed upon them some moral beings which do not suit their condition: natural beings go so far as to require the imposition of some moral beings that their nature is in need of: [A]‌lthough moral entities owe their origin to imposition, and for that reason are not in an absolute sense necessary (absolute necessaria), yet they have not arisen in such a loose and general manner (dissoluto ac vago modo), that scientific knowledge about them is on that account utterly uncertain. For the very condition of man demanded (postulavit ipsa homi­ nis conditio) the institution of most of them, a condition assigned him by the most Good and Great Creator out of His goodness and wisdom.28 Accordingly, the condition that God gave to man by the act of creation ‘postulates’ most of the moral beings that God gives to man by the act of imposition. 26 27

28

De jure naturae, I.1.15. Schneewind claims that, for Pufendorf, even if the imposition of consulate to a horse is open to criticism, it is not impossible: ‘At djn i.i.15, p. 15, Pufendorf remarks that moral entities should only be imposed when some benefit will accrue to mankind, but that they are sometimes constituted without regard for such benefits. He criticizes imposing entities in this way but does not suggest that it is impossible.’ J.B. Schneewind, The Invention of Autonomy (Cambridge: Cambridge University Press, 1998), p. 124. We disagree with Schneewind on this point: we do not believe that, for Pufendorf, Caligula’s horse is really a consul. De jure naturae, i.2.5. By claiming that moral beings ‘have not arisen in such a loose and general manner (dissoluto ac vago modo), that scientific knowledge about them is on that account utterly uncertain’, Pufendorf defends a crucial epistemic position for his project of a genuine science of natural law. Actually, the whole ­chapter 2 of book i is devoted to maintain, against the Aristotelian tradition (see Nicomachean Ethics, 1094 b 13 and 1098 a 26–​27), that moral sciences lead to a real ‘apodictic certainty’ (certitudo apodictica, i, 2, 1). Such a certainty could not be obtained if moral beings were arbitrarily imposed, that is to say in a completely unjustifiable manner.

298 Ramelet Why are not all moral beings ‘imposed’ on men by God ‘postulated’ by man’s condition which was created by God? Why only ‘most of them’? Because, besides natural divine law –​namely, the fundamental moral precepts valid for all men, particularly the Ten Commandments –​, we also find in the Old Testament positive divine law, valid only for the people of the Old Covenant: these are, on the one hand, the ‘ceremonial’ precepts, setting the rituals of the Jewish religion, and, on the other hand, more specific moral precepts, belonging to the people of Israel, called ‘judicial’ precepts by Aquinas29 and ‘political’ precepts by Calvin.30 Pufendorf will then specify the way natural beings ‘postulate’ moral beings, which causes further –​explicit –​criticism, against Grotius this time: [Grotius] says that the absolute existence of any natural law is tested by its necessary agreement or non-​agreement with rational and social nature. And yet man received this social nature not from any immutable necessity (ex immutabile necessitate), but from the pleasure of God (beneplacito divino). Therefore, the morality of actions as well, whether they do or do not suit him as a social being, must be derived from the same source. And morality is fittingly attributed to these actions, not of an absolute necessity, but of a hypothetical necessity (non ex necessitate absoluta, sed hypothetica), since such a [condition] is posited for man as God freely assigned him (posita ea conditione, quam homini […] Deus libere assignavit) above all other creatures.31 Hence, between moral beings and the condition of natural beings, there is a link of hypothetical necessity: insofar as God gave, in his goodwill, a specific nature and a specific condition to a specific being, these will then ‘demand’ from God the imposition of the moral beings which suit them, rather than any such which would repel them, such as a consulate to Caligula’s horse. The hypothetical modality of moral beings’ necessity entails a modalization of eternity which normally characterizes the rules of natural law (as opposed to the rules of positive law which are purely contingent): [T]‌he familiar and oft-​repeated saying, ‘The precepts of the natural law are of eternal verity’, should be limited to this extent, that such eternity should not reach beyond the imposition of God, or the origin of the race 29 30 31

Th. Aquinas, Summa theologiae, part. 2-​1, quest. 99 (art. 4), 104 and 105. J. Calvin, Institutes of the Christian Religion, iv.20.15. De jure naturae, i.2.6.

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of man (impositionem divinam, aut originem generis humani). Although, as a matter of fact, the eternity which is attributed to natural law should be measured and defined in terms of its opposition to positive laws, which are subject to change.32 Because of the link of hypothetical necessity, the eternity of the norms of natural law goes back –​this being a logical regression and not a chronological one –​beyond divine imposition, to the creation of natural beings, but not any further (against Grotius33 and, before him, Plato). This link of hypothetical necessity between natural and moral beings is reaffirmed by Pufendorf in book 2 of the De jure naturae et gentium, in its very important c­ hapter 3 devoted to natural law, in a passage where Pufendorf once again confronts the naturalists, starting with exposing their position very honestly: Some writers constitute as the object of natural law such acts as contain in themselves a moral necessity or baseness, which are, therefore, in their own nature (in sua natura) either required or unlawful, and hence necessarily (necessario) understood to be commanded or forbidden by God. And in this respect, they say, natural law is distinguished not only from human law, but from the divine voluntary or positive law, which does not command or forbid things which are of their own proper nature obligatory or unlawful, but makes them by its forbidding unlawful, or by its command obligatory. But things forbidden by natural law are not improper because God forbade them, but God forbade them because they were of themselves improper; while in the same way things commanded by the same law are not proper or necessary because they are commanded by God, but they were commanded because they are of themselves proper.34 Here is what Pufendorf answers to the naturalists:

32 33

34

De jure naturae, i.2.6. Like all his contemporaries, Pufendorf only knew about the later Grotius, the naturalist voice of the etiamsi daremus (De iure belli ac pacis, 1625, Prolegomena 11), not the previously voluntarist Grotius, whose early work (De iure praedae) was only discovered as a manuscript in 1864. Cf. M.J. Van Ittersum, ‘Dating the manuscript of De Jure Praedae (1604–​1608): What watermarks, foliation and quire divisions can tell us about Hugo Grotius’s development as a natural rights and natural law theorist’, History of European Ideas, 35/​2 (2009), pp. 125–​193. De jure naturae, ii.3.4.

300 Ramelet [I]‌t has already been shown35 that no acts are of themselves obligatory or unlawful, until they have been made so by law. Nor is it necessary that anyone be perplexed by such a question [raised by naturalists] as the following: 'If the entire morality of human actions depends upon law, might not God have been able to decree a law of nature so that He should have commanded just the opposite of what now prevails; so that, for example, among the duties which men owe one another would be murder, theft, fornication, bearing false-​witness, and among the things forbidden them would be gratitude, keeping one's agreements, repayment of loans, and the like?36 This is Ockham’s question. Here is how Pufendorf defends himself: [O]‌ne can easily make the reply that the question raised above implies a manifest contradiction. For although God was under no constraint whatsoever to create man …, yet, when once (postquam) He had decreed to create him a rational and social animal, it was impossible for the natural law not to agree with his constitution (non poterat lex naturalis ipsi non congruere), and that not by an absolute, but by a hypothetical necessity (non ex necessitate absoluta, sed hypothetica). For if man had been bound to the opposite duties, no social animal but some kind of wild and fearful creature would have been produced. Yet, despite all this, it is still true, that before there was any law, every kind of action was indifferent; for by His decision to create man (dum Deus decrevit creare hominem), that is, an animal whose every act should not be indifferent, God also by the same act (simul) constituted for him a law.37 By the way, Pufendorf explicitly confirms something we suspected from the first chapter devoted to moral beings: the imposition of moral beings and of natural law happens ‘at the same time’ (simul) as the creation of natural beings. The creation and the first imposition are two distinct but simultaneous divine acts. At the most there is a logical precedence of creation over imposition, since the latter implies the first. Pufendorf continues with his defence:

35 Cf. De jure naturae, i.2.6. See for references fn 17 and 19 above. 36 De jure naturae, ii.3.4. 37 De jure naturae, ii.3.4.

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But it does not follow from our assertion that all acts of themselves were indifferent before the announcement of a law, that had God so wished, He could have commanded that He be worshipped by blasphemy or contempt, as Vazquez asserts. … But this would plainly imply that one conceives the same being as both most eminent and also abject, that one commands, and yet I can rightfully flaunt him; that I do, as a witness of my appreciation of the eminence of His divine nature and power, something which directly and of itself denotes the very opposite. When, indeed, it is said that God cannot sanction such things by law, this no more implies a detraction from His omnipotence than to say that He cannot die, or lie, or make undone what has already been done.38 Fernando Vasquez de Menchaca (1512–​1569)39 is a jurist from the School of Salamanca. As a naturalist who inspired Grotius,40 he brings the voluntarist position to its absurdity.41 If God’s freedom is endless, what would prevent him from commanding men to blaspheme against him rather than worship him? Pufendorf answers that it would be contradictory to serve and despise a same being. Similarly, it would be just as contradictory that God could die or lie. Even so, according to Pufendorf, these various impossibilities do not lessen in any way God’s omnipotence. This argument is the same as the one traditionally developed by naturalist authors (see for instance, Aquinas, Summa contra Gentiles, ii, 25). By relying on the notion of hypothetical necessity, Pufendorf tries to elaborate a moderate voluntarism, eluding the objections to which Ockham’s radical voluntarism exposes itself.42 We may ask whether in doing so Pufendorf ipso facto falls back on a naturalistic position. In the next paragraph of the same c­ hapter 3 in book 2 of De jure naturae et gentium, we find again the idea –​if not the word –​of hypothetical necessity: We must remark on the first of these opinions that it was, indeed, within the power of the divine will to produce, or not to produce, an animal such 38 39 40 41 42

De jure naturae, ii.3.4. He should not be mistaken for the Jesuit Gabriel Vasquez de Belmonte (1549/​1551–​1604). Grotius specifically refers to Vasquez in De iure belli ac pacis (for instance in book ii : 1.9.2; 14.6.2; 20.40.4). Fernando Vasquez de Menchaca, Illustres controversiae (Venice: G. Bondonus, 1564), i.27.10–​14. In § 10, Vasquez explicitly refers to Ockham. ‘The claim about God’s necessary will separates [the voluntarism of Pufendorf] from the more extreme voluntarism of Ockham and Hobbes.’ (T. Irwin, The Development of Ethics, 3 vols (Oxford: Oxford University Press, 2008), ii, p. 304).

302 Ramelet as the law of nature would agree with (congrueret). But after (postquam) man had once been created by God, an animal which could not be preserved alive unless he observed the natural law, it is no longer possible to believe (hautquidquam fas est credere) that He will annul or change the law of nature so long as He makes no change in the nature of man. … And so, on the assumption (posita) that the world of nature and man remain constant, the law of nature, even though it was formed in the beginning at the pleasure of God (beneplacito divino), remains fixed and unmoved (firma et immota); very different from such laws [are those] so connected with the divine will, that they do not seem to be so necessar[il]y [desired] for the condition of men in general.43 As Rossiter very justly writes, ‘Pufendorf’s voluntarism is moderated by his view of hypothetical necessity’.44 If in the act of creation, God is free to give to beings the nature he wants, as long as it does not imply a contradiction, once he has given to the beings their nature, he is ‘conditionally required’ to impose on them the moral beings suitable to their nature. In the thesis he devoted to this notion, Rossiter opposes hypothetical necessity (necessitas ex suppositione) to strict or absolute necessity. He first gives this general definition: ‘Something is hypothetically necessary if it is the case that it is not strictly necessary, considered by itself, but necessary in virtue of being entailed by something else that is contingent’.45 Later on, he gives a definition specific to the theological context: ‘Hypothetical necessity involves things that could have been otherwise, but which are now necessary based on the supposition of a free action and the perfection of the divine attributes’.46 Unlike Pufendorf’s commentators quoted here in the first two sections, all those who will be quoted in this third section have clearly seen the moderation of Pufendorfian voluntarism by the notion of hypothetical necessity, and make the law of nature a necessary consequence of ‘the condition of man in general’. This is first the case of Behme, who is not afraid of talking of ‘the persistence of a teleological conception of nature’.47

43 44

De jure naturae, ii.3.5. E. Rossiter, Hypothetical Necessity and the Laws of Nature: John Locke on God’s Legislative Power (London ON: University of Western Ontario, 2014), p. 48. 45 Rossiter, Hypothetical Necessity, p. 28. 46 Rossiter, Hypothetical Necessity, p. 36. 47 Th. Behme, ‘Pufendorf’s Doctrine of Sovereignty’, in Natural Law and Civil Sovereignty. Moral Right and State Authority in Early Modern Political Thought, ed. by I. Hunter and D. Saunders (London: Palgrave Macmillan, 2002), pp. 43–​58, at p. 43.

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Pufendorf is said to have broken the metaphysical nexus between physical and moral nature characteristic of Aristotelian substance ontology, that had found its classical formulation in the Thomistic dictum ens et bonum convertuntur (being and the good coincide). As a matter of consequence the moral actions of man no longer appear as a realisation of his immanent essence, but as actions according to rules resulting from voluntary imposition according to convenience.48 Behme assumes that ‘this point of view has to be corrected to a certain extent’: Pufendorf claims to have developed his theory of law as a universally binding natural law. This law is recognised by human reason in contemplating the human condition [ii.2.14], and has ‘an abiding, and uniform standard of judgement, namely, the nature of things’ [ii.2.9], even in the natural state. Pufendorf reconciles this claim with his separation of entia physica and entia moralia by tracing back nature and moral law to God the creator and lawgiver, who guarantees the harmonious conformity and ultimate identity of both realms. … As long as created human nature remains unchanged according to divine will, God’s consistency also guarantees the eternity and unchangeability of natural law [ii, 3, 5]. … This close union of nature and morality based on the integrity of God’s original act of simultaneous creation and imposition also enables Pufendorf to reintroduce a kind of natural teleology.49 Behme is by far not the only one to consider that some commentators have excessively pulled Pufendorf’s voluntarism in the direction of pure arbitrariness, and points to the harmonious conformity between creation and imposition. Haakonssen, despite stating in 2010 –​as already noted –​that ‘the core of Pufendorf’s voluntarism’ is that ‘there is no general theoretical connection between natural and moral goods’,50 was however writing a few years earlier: It should be stressed that Pufendorf’s voluntarism in the first instance is ontological. It was in His choice of creation that God exercised His free will. However, once he had included a human nature of the sort He did, a certain set of moral entities was naturally fit to provide guidance for this nature. The standard charge against voluntarism, that it makes God’s 48 49 50

Behme, ‘Pufendorf’s Doctrine of Sovereignty’, p. 44. Behme, ‘Pufendorf’s Doctrine of Sovereignty’, p. 44–​45. Cf. note 3 above.

304 Ramelet prescription of natural law appear an arbitrary position, was thus in some measure misconceived. …51 Likewise in Seidler: ‘The voluntarist problem of arbitrariness is avoided by positing (Pufendorf thinks proving, through natural theology …) divine benevolence (providence) and consistency: human nature and the law regulating it are willed together by God for human benefit’.52 Petter Korkman suggests as for him that ‘[t]‌he term “voluntarism” is often used … in a somewhat misleading manner in discussions of Pufendorf’s theory’. Given that ‘Pufendorf and Barbeyrac do indeed defend a position where it is important that the moral laws are imposed by God’s will’, the question arises whether ‘God arbitrarily invented all moral distinctions, just as Descartes had claimed that God invented the eternal truths? Can God’s will take precedence over reason and act without it, or even against it? This is the conclusion Leibniz wishes his readers to draw’.53 Actually, as we have seen above, Pufendorf is not as voluntarist as Leibniz claims him to be. Making the distinction between, on one side, the content of the natural law and, on the other side, its form (laws or commands) as well as the source of moral obligation (God’s will), Korkman concludes: The natural laws are therefore based on human nature, as to their content. This, Barbeyrac concludes, also means that the natural laws are not arbitrary. The natural laws are bound up with human nature in such a way that God could not change these laws without changing human nature. In this sense then, the natural laws are not arbitrary as to their content, on the Pufendorfian theory. Thus Barbeyrac can retort to Leibniz that Pufendorf does not transform morality into a set of arbitrary commands. Pufendorf, as Barbeyrac points out, takes something of a middle position between voluntarism and rationalism. … Without God's decision to create the rational and social animal, the natural law, and morality as we know

51 52 53

K. Haakonssen, ‘Divine/​natural law theories in ethics’, in The Cambridge History of Seventeenth-​Century Philosophy, ed. by D. Garber and M. Ayers (Cambridge University Press, 2003), vol. ii, pp. 1317–​1357, at. p. 1336. M. Seidler, ‘Pufendorf’s Moral and Political Philosophy’, 3.4, Stanford Encyclopedia of Philosophy, https://​plato.stanf​ord.edu/​entr​ies/​pufend​orf-​moral/​, retrieved on July April 10th 2021. P. Korkman, ‘Voluntarism and moral obligation: Barbeyrac’s defence of Pufendorf revisited’, in Early Modern Natural Law Theories, ed. by T.J. Hochstrasser and P. Schröder (Kluwer Academic Publishers, 2003), p. 195–​225, in part. p. 205 (italicized in the text).

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it, would never have existed.54 This is a very central cornerstone in the Pufendorfian-​Barbeyracian position. The natural laws are contingent in the sense that they depend on the existence of man. The existence of man is contingent. God could very well have decided not to create man. Once he did decide to create man, however, he was bound to impose the laws of sociability on him.55 Is it only the existence of man which is contingent, as Korkman claims? When reading two excerpts by Pufendorf, it seems that not only is existence so, but also essence, as Sève rightly noticed when he points out that ‘conditional necessity not only of existence but [also] of essence’ gives God ‘twice as much room for manoeuvre’: It appears that [to Pufendorf] man … could have been, according to God's ‘goodwill’, a man, always man because rational, but different because not social. In this passage [i, 2, 6], we indeed observe a progressive shift from the rational nature that Grotius talks about, and that identifies to man like two and two to four, towards the social nature of which Pufendorf can assert … contingency. This interpretation is confirmed when Pufendorf [ii, 3, 4], resuming the issue of the conditional necessity not only of existence but also of essence, mentions the idea of another constitution and other duties in these terms: ‘For if man had been compelled to other duties, it is not a social animal that would have been produced, but another species of a savage and fierce animal.’ In other words, according to Pufendorf, God has the freedom of creating man or not, the freedom of making him sociable or not, but not that of imposing other duties than those that necessarily stem from this second choice.56 Sève’s interpretation is confirmed both by Schneewind: ‘It was necessary neither that God should create, nor that he should have created beings with our distinctive nature.’57 and by Rossiter: ‘[Pufendorf] thinks that God has the

54

Korkman’s note: ‘Barbeyrac thus distinguished between absolute and “hypothetical” necessity: the natural laws are indeed hypothetically necessary, i.e. they must be valid if there is a rational and social animal, man. Barbeyrac, Le Droit de La Nature, ii.3 §4 n. 2, 198. […]’. 55 Korkman, ‘Voluntarism and moral obligation’, pp. 206–​207 (our italics). 56 René Sève, Leibniz et l’école moderne du droit naturel (Paris : Vrin, 1989), p. 44 (our translation). 57 Schneewind, Invention of Autonomy, p. 140.

306 Ramelet power to fashion human nature in any number of ways according to his pleasure. What follows here is that God could have created human beings to be simply rational or to be both rational and sociable.’58 Thus, on the basis of the contingency of man’s creation and man’s nature and condition, the moral imposition is not absolutely necessary but only hypothetically necessary. This hypothetical necessity can be understood as a natural teleology, a natural correspondence, God’s consistency, our distinctive nature, or consequences flowing from the nature of things. 5

The Tension between the Doctrines of Moral Beings and Hypothetical Necessity, and Its Resolution

Most of the commentators who take into account the notion of hypothetical necessity in their interpretation of Pufendorf also recognize a tension –​or even an incoherence –​between this notion and the Pufendorfian doctrine of moral beings. This is incidentally so whatever motivation they assign to Pufendorf regarding the doctrine of moral beings: a cosmological motivation to answer the challenge of the modern conception of a purposeless nature for some, a theological motivation to exalt divine freedom for others (or even both together). Schulthess is one of the commentators who underline the cosmological motivation: By his ontological approach to the legal theme, Pufendorf places himself in an original manner in the history of natural law: he is the author who takes into account in the most coherent way the new concept of nature, the mechanistic concept, exhaustively described by quantities. As this new concept of nature does not support the arrangement of deontic modalities in the same way as the old concept of nature did, Pufendorf has had to innovate.59

58 Rossiter, Hypothetical Necessity, p. 47. 59 D. Schulthess, ‘Modes et modalités dans le système de droit naturel de Samuel Pufendorf (1632–​1694)’, in Liber Amicorum Pascal Engel, ed. by J. Dutant, D. Fassio and A. Meylan, electronic publication (Genève: Département de philosophie, 2014), pp. 878–​891, at p. 880 (our translation).

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However, a little further, he does acknowledge that, according to Pufendorf, ‘human nature comprises by way of a lack a requirement for sociability’.60 By way of a lack, indeed, since human nature, i.e. the nature of the natural body, in itself does not imply moral obligations, but given that moral norms have to be imposed upon man, the core norm has to be that of sociability. We find again the notion of hypothetical necessity. Darwall, as for him, writes that Pufendorfian nature ‘if not completely value free, nonetheless can contain no moral value of or on its own’.61 It can contain no moral value of or on its own, but is nevertheless not completely without values. This remains puzzling. Behme is just as embarrassed when, immediately after having written that Pufendorf ‘reintroduce[s]‌a kind of natural teleology’, he adds: ‘To be sure, he does not conceive it in the sense of natures containing (and being constituted by) their immanent ends (entelechies), but in the sense of divinely imposed ends being inseparably connected to certain natures because of their common origin in the divine original act’.62 Renoux-​Zagamé develops the same idea: From the first chapters of De Jure naturae et gentium, Pufendorf rigorously divides the entia moralia and the entia physica. … After emphasizing this dichotomy to its breaking point, Pufendorf has to admit that, if the moral rules imposed by God to men are not born ex ipsa re, they are however convenient –​they have to be –​to the natura of man, and consequently have their foundation in the thing itself. … once the creation of man as a free and rational being had actually been decided, God could not avoid imposing on him obligations suitable to this nature, since it would have been against his perfection to create them different. … Pufendorf thus recreates a ‘natural’ order, which may in some respects be reminiscent of that which was at the basis of the construction of sixteenth-​century theologians.63

60 61 62 63

Schulthess, ‘Modes et modalités’, p. 883 (emphasis added to the expression ‘comprises by way of a lack a requirement’). S. Darwall, ‘Pufendorf on Morality, Sociability, and Moral Powers’, Journal of the History of Philosophy, 50/​2 (2012), pp. 213–​238, at p. 213 (italics in the original). Behme, loc. cit., p. 45. M.-​F. Renoux-​Zagamé, Origines théologiques du concept moderne de propriété (Genève: Droz, 1987), pp. 174–​175 (our translation).

308 Ramelet If human nature involves a requirement of sociability –​even if only by way of a lack –​, if moral rules have their foundation in the condition of things themselves, created by God, this means that Pufendorf does not really adopt the new Cartesian cosmology, a purely mechanistic one. Schneewind combines the cosmological and theological motivations. The doctrine of moral entities ‘is a new response to the developing scientific view of the world as neutral with respect to value. … Pufendorf’s main reason for taking this line is that it alone allows us to have a proper understanding of God. Only voluntarism leaves God untrammeled’.64 The same two motivations can be found in Forde: Pufendorf charges that [Grotius’] neo-​Aristotelian view is incompatible with divine omnipotence, as it postulates a ‘co-​eternal extrinsic principle’ that constrains God in creation (1.2.6; 2.3.2). Pufendorf takes a ‘voluntarist’ position: the moral law is not an eternal and unalterable principle, but a free creation of God, who could have ordained that law differently. … Pufendorf's voluntarism is motivated by more than the desire to vindicate divine power and freedom. His rejection of the Aristotelian-​ Scholastic, ‘naturalistic’ metaphysic has left him with divine legislation as the only possible origin of morality. Nature is morally vacuous, bereft of the formal causes spoken of by Scholasticism, or the immanent moral principles relied on by Grotius.65 In the previous quotation, Forde talks twice of man’s sociable nature, as if Pufendorf considered man a naturally social or sociable being, in the manner of Aristotle or Grotius. Actually, as Palladini has perfectly demonstrated,66 the Pufendorfian conception of human nature is much more Hobbesian than Grotian. Indeed, here is what Pufendorf writes in the famous paragraph in which he expresses the fundamental law of human nature:

64 Schneewind, Invention of Autonomy, pp. 138–​140. 65 S. Forde, ‘ “Mixed Modes” in John Locke’s Moral and Political Philosophy’, The Review of Politics, 73/​4 (2011), pp. 581–​608, at p. 595–​596 (italics in the original). 66 F. Palladini, Samuel Pufendorf, discepolo di Hobbes: per una reinterpretazione del giusnaturalismo moderno, (Bologna: Il Mulino, 1990), now also in English: Samuel Pufendorf Disciple of Hobbes. For a Re-​Interpretation of Modern Natural Law, tr. David Saunders (Leiden: Brill, 2019). See also: F. Palladini, ‘Pufendorf disciple of Hobbes: The nature of man and the state of nature: The doctrine of socialitas’, History of European Ideas, 34 (2008), pp. 26–​60.

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It is quite clear that man is an animal extremely desirous of his own preservation, in himself exposed to want, unable to exist without the help of his fellow-​creatures, fitted in a remarkable way to contribute to the common good, and yet at all times malicious, petulant, and easily irritated, as well as quick and powerful to do injury, For such an animal to live and enjoy the good things that in this world attend his condition, it is necessary that he be sociable, that is, be willing to join himself with others like him, and conduct himself towards them in such a way that, far from having any cause to do him harm, they may feel that there is reason to preserve and increase his good fortune. … And so it will be a fundamental law of nature, that ‘Every man, so far as in him lies, should cultivate and preserve toward others a [peaceful sociality] (pacificam socialitatem), [convenient] to the nature and end of the human race’.67 As we can see, the requirement of sociability follows from the desire ‘to live and enjoy the good things’, maybe ‘by way of a lack’, if we may borrow the insightful phrase from Schulthess, but certainly conditionally.68 Hence could we, with Forde, find it paradoxical that the anti-​naturalistic doctrine of moral beings, developed in the first chapter of the De Jure naturae et gentium, may give birth to a treatment of natural law wich remains, all in all, rather classical? The explanation would then be that the innovative potential of the doctrine of moral beings is neutralized by the conditional necessity, which –​may we want it or not –​replaces the foundation of normativity in natural beings. However, would it not be more accurate to see in Pufendorf’s natural law theory a rather conservative one (or even a necessarily conservative one)69 –​at least on the moral level, if not on the political level –​compelled to give new grounds to ‘classical’ natural law on new conceptual bases due to the scientific revolution which inaugurates modernity? On the theological level, Forde states that conditional necessity imposes on God a requirement of coherence that limits his freedom, which contradicts the initial Pufendorfian intention to exalt divine omnipotence. Irwin is of the same opinion as Forde on this point:

67 68 69

De jure naturae, ii.3.15. See above, reference to fn 60. K. Haakonssen, ‘The Moral Conservatism of Natural Rights’, in Natural Law and Civil Sovereignty. Moral Right and State Authority in Early Modern Political Thought, ed. by I. Hunter and D. Saunders (London: Palgrave Macmillan, 2002), pp. 27–​42. This article is about the conservatism of two natural law theorists in particular: Grotius and Burlamaqui. However, the argument has a more general application.

310 Ramelet To be distinct from Ockham and Hobbes, Pufendorf needs to say that God is not free not to command actions that accord with rational nature. How, then, can Pufendorf maintain that God is still genuinely free? … It is not clear, then, that Pufendorf has found a plausible version of voluntarism that avoids the aspects of naturalism and Ockhamism that he rejects.70 Both Forde and Irwin are claiming that on the theological level there is no intermediate coherent position between classical naturalism (from Aristotle to Grotius, including Cicero and Aquinas) and Ockham’s or Descartes’ absolute voluntarism. If one wants to exalt divine and/​or human freedom, nature must be regarded as devoid of any intrinsic normativity. We can nonetheless wonder if the challenge laid out for us would not rather be to overcome this opposition between naturalism and voluntarism that, although having been fruitful for the deepening of natural law theories for so many centuries, should now be left behind, and if Pufendorf’s contribution wouldt not be exactly this? Might not the contribution of hypothetical necessity be intended to point out that intrinsic normativity is not a requirement for moral norms? This is precisely Hunter’s interpretation, whose recent article can do without even once mentioning voluntarism or its opposite, naturalism: The intent of the entia moralia doctrine is to de-​substantialize or de-​ essentialize the domains of ethics and politics. … In thereby separating the determination of human morality from principles held to be present in man’s substance or essence, Pufendorf was modifying the Protestant scholastic doctrine that man’s physical and moral natures were created together (concreatus). … In denying that human nature is a kind of being or substance in which normative principles are embedded, and by treating it instead as an imposed status whose normative orientation depends on the purposes of moral governance for which it is imposed, Pufendorf sought to alter not just the character of ethical and political norms, but also the manner in which theologians, philosophers and jurists know such norms and envisage their subjection to them.71 Hunter concludes that ‘Pufendorf transforms human nature into a historical condition whose governing norms must be derived through an exercice of “observational” reasoning that is itself immanent to this condition.’72 70 Irwin, Development of Ethics, ii, pp. 304–​305. 71 Hunter, ‘The Invention of Human Nature’, pp. 935–​936. 72 Ibid. p. 939.

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311

Conclusion

We started our discussion of Pufendorf’s entia moralia with an overview of the dominant interpretation of this new theory as a case of voluntarism. It turned out, however, that upon more careful consideration, the imposition of natural law by God depends on human nature and the conditions of human life. This might suggest that Pufendorf sides –​at least partially –​with those who try to deduce natural law from the nature of man. We argue that this element in Pufendorf’s argumentation might be best understood as a conditional or hypothetical necessity, following from the kind of nature and conditions of men as created by God. In the last section, we considered different proposals as to the underlying motivation that Pufendorf might have had to make this concept of entia moralia so central to his De jure naturae et gentium: a cosmological motivation to answer the challenge of the modern conception of a purposeless nature, a theological motivation to exalt divine freedom or a methodological motivation to side-​line the distinction between voluntarism and naturalism, by showing the underlying teleological motivation and the distinction between form and content.

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and A. Meylan, electronic publication. Genève: Département de philosophie, 2014, pp. 878–​891. Seidler Michael, ‘Pufendorf’s Moral and Political Philosophy’, Stanford Encyclopedia of Philosophy, retrieved on April 10th 2021. Sève, R., Leibniz et l’école moderne du droit naturel, Paris: Vrin, 1989. Van Ittersum, Martine J., ‘Dating the manuscript of De Jure Praedae (1604–​1608): What watermarks, foliation and quire divisions can tell us about Hugo Grotius’ development as a natural rights and natural law theorist’, History of European Ideas 35/​2 (2009), pp. 125–​193. Westerman, Pauline, The Disintegration of Natural Law Theory, Leiden: Brill, 1998.

­c hapter 14

Providence and Uses of Grotian Strategies in Neapolitan Political Thought, 1650–​1750 Adriana Luna-​Fabritius Neapolitan thinkers defended what they saw as their local liberties, privileges, property and honor by recourse to natural law. In arguing for the superiority of natural law over the laws propounded by the Pope on the one hand and by the Spanish monarch on the other, Neapolitans found a source of reference in Grotius. This chapter distinguishes two phases in the appropriation of Grotius’s theoretical and argumentative strategies in the late-​seventeenth century in Naples. The first phase begins in the time of the Revolt of Masaniello, which led to the proclamation of the Republic in 1647 and ends with the devaluation of the coin in 1675. The second phase starts with the just mentioned trial of the Investiganti by the Roman Inquisition. The first phase is marked by the reading (in the original language) of Grotius’s texts and is governed by the shared knowledge of juridical practices and strategies developed in the different kingdoms of the Spanish monarchy to deal with their monarch. The second phase expands on Grotius’s ideas through classic and scientific texts, also propelled by the reading of Samuel Pufendorf’s discussion of appetitus societatis.1 Neapolitan giurisdizionalisti, in dialogue with Grotius in his Apologia (1619) and De imperio circa sacra (1647), started a transformation of the language of privileges into the language of natural rights between 1650 and 1750. They did so through three distinct moves. Firstly, by arguing that privileges are claim rights towards their Spanish sovereign, for instance the privilege to be judged in one’s own episcopal trials with ordinary procedures and local judges in cases concerning matters of faith. Secondly, by arguing that those privileges turn into claim per se rights when defended by force, as in the revolt of Masaniello,2 1 Fiammetta Palladini, Discussioni seicentesche su Samuel Pufendorf: scritti latini, 1663–​1700 (s.l.: 1978). 2 Although the historiography has not considered this event as a reaction to the increase in taxes and prices during in 1647, in the 1690s Neapolitan authors began to include them in their accounts to enhance their claims and threats of revolt. Cf. S. Mastellone, Pensiero politico e vita culturale a Napoli nella seconda metà del Seicento (Messina-​Florence: D’Anna, 1965); Id., Il pensiero politico-​giuridico di Francesco D’Andrea e l’ascesa del ceto civile (Florence: Olschki, 1968); G. Galasso, Napoli spagnola dopo Masaniello. Politica, cultura, società (Naples: Edizioni

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in the threats of tumults that took place on the squares of Naples in 1675 against the devaluation of the coin,3 and in the pamphlets that circulated during the trials of the atomists-​atheists in the period 1688 to 1697. And thirdly, by acknowledging the fact that if ancient privileges and local liberties can be defended by force, they can be turned into subjective rights.4 We will see how a new account of providence was deeply informed by the developments and discussions of the scientific revolution, which had a significant impact around 1650 to 1680 in Naples, and which Vico concluded in the different versions of his Scienza Nuova from 1725 to 1744. The publication of the last works of Vico’s generation around 1750 marks the chronological end of this study. If during the monetary crisis of 1675 the giurisdizionalisti and members of the social group in the process of rapid transformation, the ceto civile, made use of known and shared practices within the Spanish monarchy to defend the privileges and local liberties,5 by the end of the century these Neapolitan thinkers improved those practices by assimilating new ones. For instance, there were innovations in the practices used in the negotiation of the devaluation of the coin in the kingdom of Naples (1675),6 and in the trial of the scientifiche italiane, 1972); V. I. Comparato, ‘La Repubblica Napoletana del 1647–​48: Partiti, idee, modelli politici’, Il Pensiero Politico, 31/​2 (1998), pp. 205–​238; Id., ‘From the Crisis of Civil Culture to the Neapolitan Republic of 1647: Republicanism in Italy between the Sixteenth and Seventeenth Centuries’, in Republicanism. A Shared European Heritage, ed. by M. van Gelderen and Q. Skinner, 2 vols (Cambridge: Cambridge University Press, 2002), i, pp. 169–​ 194 and S. D’Alessio, La rivolta Napoletana del 1647–​48. Linguagio politico (Florence: Centro Editoriale Toscano, 2003). 3 V. I. Comparato, Giuseppe Valletta. Un intellettuale europeo della fine del Seicento (Naples: Istituto Italiano per gli Studi Storici 1970), pp. 44–​46. 4 For an account of subjective right in the period 1650–​1750 see A. Luna-​Fabritius, ‘The Secularization of Happiness in Early-​Eighteenth Century Italian Political Thought: Revisiting the Foundations of Civil Society’, in Trust and Happiness in the History of European Political Thought, ed. by L. Kontler and M. Somos (Leiden: Brill, 2017), pp. 169–​195. 5 On shared juridical practices in the Spanish monarchy cf., B. Clavero, ‘Anatomía de España. Derechos hispanos y derecho español entre fueros y códigos’, in Hispania entre derechos propios y derechos nacionales, 2 vols, ed. by B. Clavero, P. Grossi and F. Tomás y Valiente (Milan: Giuffré Editore, 1990), i: pp. 47–​86; J. H. Elliott, ‘A Europe of composite monarchies’, Past and Present, 137 (1992), pp. 48–​71; ed., Monarquía, imperio y pueblos de la España Moderna, ed. by P. Fernández Albaladejo (Alicante: 1997) and J. Arrieta Alberdi, ‘Las formas de vinculación a la Monarquía y de relación entre sus reinos y coronas en la España de los Austrias. Perspectivas y análisis’, in La Monarquía de las naciones. Patria, nación y naturaleza en la Monarquía de España, ed. by S. L. Villaverde (Madrid: Fundación Amberes, 2004), pp. 303–​326. 6 R. Villari, La rivolta antispagnola a Napoli. Le origini 1585–​1647 (Rome-​Bari: Laterza, 1987), pp. 274–​276.

316 Luna-Fabritius atomists-​atheists (1688–​1697). In the latter, besides the jurisdictional practices regarding the competence and authority of those who were to decide on matters of money or faith, Neapolitan jurists included discussions on the legitimacy of procedures in the administration of justice. In this particular case, they criticized the introduction of extraordinary trials and the procedures of the Roman Inquisition during the trial of the atomists-​atheists. They critiqued the validity of anonymous witnesses and their testimonies, and the legitimacy of declarations under torture, among other things. Moreover, Neapolitan thinkers introduced historical accounts of the concession of their privileges and liberties, setting the date of the concession at the very moment of the union of Naples with the Crown of Aragon in the thirteenth century, stressing the nature of their association with the Spanish monarchy.7 In this manner, this historical account was transformed into a contractual theory. A pact of association with conditions that had to be fulfilled by both parties. But their arguments had other implications, grounded on jurisdictional and historical analyses, Neapolitan thinkers concluded that the Pope’s law as well as the Vatican’s extraordinary tribunals had no jurisdiction in the Neapolitan kingdom (Nullum ius Romani Pontificis maximi in Regno Napolitano).8 The central claim of this study is that by threatening to end the peace within the Neapolitan kingdom, Neapolitans changed the language of privileges into rights. They did not so much cede their privileges but formed a historical argument where something resembling a pact with the Spanish monarch emerged and was renewed over time. Neapolitan authors steered these jurisdictional conclusions to a new theoretical level in order to demarcate matters of politics from matters of faith in their political philosophies, but also in everyday legal and political practices. As a backdrop to this complex process there is also a process of secularisation of politics that was underpinned by the jurisdictional distinction between matters of faith and politics and the idea of the utility of religion and providence; that is, religion should be maintained because it guarantees the peace in the kingdom as it would avoid questioning the bond to the laws. This conviction was added to the commonplace, which was beginning to gain wide currency, that natural law was an element of primitive societies, and that therefore needed to be replaced by an alternative new science on which the 7 For other kingdoms of the Spanish monarchy see Clavero, ‘Anatomía’; Elliott, ‘A Europe of composite monarchies’; Fernández Albaladejo Monarquía, imperio; Arrieta ‘Las formas de vinculación’ and Luna-​Fabritius, ‘The Secularisation of Happiness’. 8 N. Caravita, Ragioni a pro’ della fedelissima città di Napoli contr’al procedimiento straordinario nelle cause del Sant’Officio, … (Naples: 1707 [1696]).

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foundations of civil society could be built.9 The latter argument was the main motivation in the search of a new historical understanding of the uses of laws. These Neapolitan thinkers were convinced that by looking at the uses of the laws in the past they would be able to grasp the laws’ meaning and use them in the present to develop their new science. For Giuseppe Valletta, the historical understanding of the uses of the laws in the past and their application in the present would allow him and his intellectual colleagues to argue for the universal character of civil laws.10 This transformation of the language of privileges into the language of rights between 1650 and 1750 was, this study argues, similar to the one accomplished by Grotius in the Netherlands in an analogous context, namely the negotiations between political and juridical actors within the Spanish monarchy. The Grotian moment in Naples thus occurred in the context of the defence of the ancient privileges and local liberties of the Kingdom of Naples in the second half of the seventeenth century. 1

Locating the Significance of Providence in Early Modern Neapolitan Political Thought

The increasing scholarly focus on Neapolitan political thought as well as on Vico’s political philosophy has failed to encompass the Neapolitan intellectual context in its complexity. Vico’s contemporaries, such as Paolo Mattia Doria, Celestino Galiani and Pietro Giannone have not been studied as part of the group they formed in the last decades of the seventeenth century, and the same applies to the preceding generation. Ever since Jules Michelet discovered Vico’s Scienza Nuova in the first decades of the nineteenth century the scholarship has mostly concentrated on it as the key text of Neapolitan thought. However, this situation has changed recently and Vico’s earlier texts have acquired more significance, as complementary to

9

10

Cf. H. Grotius, De iure belli ac pacis (Paris, 1625), ii.2–​6, added to the Index in 1627. We used this edition as it has been indicated by P. Delpiano as the first edition that circulated in Italy; B. De Giovanni, ‘Cultura e vita civile in Giuseppe Valletta’, in Saggi e richerche sul Settecento (Naples: Istituto Italiano per gli Studi Storici, 1968), pp. 1–​47, at p. 16 and V. I. Comparato, Giuseppe Valletta, p. 70. G. Valletta, ‘Difesa per Santolo Spina accusato di furto di carlini novantacinque nella Regia Zecca’, in Disceptationes forenses, (Naples: 1677), p. 76 and Risposta ad amico, sopra le ragioni della città di Napoli per l’assitenze domandate alla fabrica della nuova moneta (Naples: 1675) in Comparato’s analysis, Giuseppe Valletta, p. 70.

318 Luna-Fabritius Vico’s masterpiece for the development of the rhetorical and linguistic foundations of his political philosophy. In re-​evaluating his early works, Diritto Universale was the last to come under scrutiny by the academic community. Published between 1712 and 1713, this text presents Vico’s understanding of Roman Law as the union of rhetoric and jurisprudence. The originality of Vico’s piece has been settled on his understanding of Roman law as a complex linguistic history.11 And yet, it has not been studied as the paramount cultivation of philology, history and rhetoric, which was started by the previous generation of Neapolitan jurists. Vico owed a great deal to Valletta’s generation, whose political and legal thought he continued.12 In the scholarship there is no mention of the intellectual background of Diritto Universale. It has not been considered that Vico accepted Valletta’s invitation to study the spirit of the laws over time, through which he minted his idea of the caducity of the laws. Nor that in dialogue with Valletta, Vico stated that the laws should be understood according to the circumstances in which they emerged. Hence, their accounts of the laws shared an understanding of laws as cultural products that can be constant and create communities of meaning in a certain time and space. But more importantly, Vico’s later account of laws as sites where human needs and interests are expressed was most probably a further elaboration of a shared set of ideas widely discussed among these Neapolitan thinkers. According to Vico, some Neapolitan jurists had achieved the synthesis of private human interests in legal practice, especially Francesco Ventura to whom the Diritto was dedicated, but also Gaetano Argento and the great 11

D. Marshall, ‘The Current State of Vico Scholarship’, Journal of the History of Ideas, 72/​1 (2011), pp. 141–​160. 12 Cf. I. Berlin, ‘The philosophical ideas of Giambattista Vico’, in Art and Ideas in Eighteenth-​Century Italy (Rome: Edizioni di Storia e Letteratura, 1960); Id., Vico and Herder. Two Studies in the History of Ideas (New York: Viking, 1976) and Id., Three Critics of the Enlightenment: Vico, Hamann and Herder, ed. by H. Hardy (Princeton: Princeton University Press, 2013); F. Venturi, Settecento Riformatore. I. Da Muratori a Beccaria (Turin: Einaudi, 1969); D. Carpanetto and Giuseppe Ricuperati, Italy in the Age of Reason 1685–​1789 (London: Longman, 1987); J. Israel, Radical Enlightenment: Philosophy and the Making of Modernity 1650–​ 1750 (Oxford: Oxford University Press, 2001), pp. 664–​670; E. Nuzzo, ‘Between Orthodoxy and Heterodoxy in Italian Culture in the Early 1700s: Giambattista Vico and Paolo Mattia Doria’, in The Intellectual Consequences of Religious Heterodoxy: 1600–​1750, ed. by S. Mortimer and J. Robertson (Leiden: Brill, 2012), pp. 206–​234; and J. Robertson, ‘Sacred History and Political Thought: Neapolitan Responses to the Problem of Sociability After Hobbes’, The Historical Journal, 56 (2013), pp. 1–​29.

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Domenico Caravita, who had shown their skills in crucial European and local legal cases.13 In Vico’s opinion, these outstanding Neapolitan jurists had found a way to reconcile private interests in their legal practice. Furthermore, they had succeeded in reconciling competing interests and statecraft.14 Vico considered Giuseppe Valletta his most important predecessor. The reason was twofold: because Valletta created and shared the best library of the kingdom where they formed their minds, and because of his writings on Neapolitan and European developments on jurisprudence over the last decades of the seventeenth century. At a crucial moment for the kingdom in the aftermath of the Revolt of Masaniello, Valletta gained rapidly a prominent place in the city in the 1670s until he became a representative of the people.15 This position allowed him to have a privileged understanding of the developments of the government that he shared with Gregorio Caloprese and the members of different Neapolitan academies, especially the Accademia Palatina of the duke of Medinacoeli (1698–​1701).16 Regarding the place of Grotius in that Neapolitan context, scholarship has concentrated on Vico’s intellectual background. It has been pointed out that Vico read Grotius together with Herbert of Cherbury. Following Grotius’s advice Vico read Herbert’s De veritate published in Paris in 1624, and De religione gentilium, published posthumously. Vico read the first book in the French translation of Mersenne, and more specifically through a commentary on De veritate by Pierre Gassendi. The translation of De veritate was prohibited by the Roman Inquisition in 1635, as was De religione in 1707. Regarding Vico’s theory of knowledge, better known as his verum-​factum principle, Badaloni established that Vico used Herbert to reshape his former definition of verum-​factum,17 which held that knowledge of nature was beyond human power, into the idea that humans have the capacity to understand natural phenomena.18 More 13

F. D’Andrea, Risposta al trattato delle ragioni della Regina Christianissima sopra il Ducato del Brabante (Naples: 1667). 14 G. B. Vico, ‘Synopsis of Universal Law’, tr. by D. P. Verene, New Vico Studies, 21 (2003), pp. 1–​22. 15 Comparato, Giuseppe Valletta, pp. 23–​24. 16 On the importance of Valletta’s library for Neapolitan juridical culture see Comparato, Giuseppe Valletta; J. Robertson, The Case for the Enlightenment. Scotland and Naples 1680–​1760 (Cambridge: Cambridge University Press, 2005); A. Luna González, From Self-​ Preservation to Self-​Liking in Paolo Mattia Doria: Civil Philosophy and Natural Jurisprudence in the Early Italian Enlightenment (Florence: European University Institute, 2009). 17 N. Badaloni, Introduzione a Giambattista Vico (Milan: Feltrinelli, 1961); Id., Laici credenti all’Alba del Moderno: La Linea Herbert-​Vico (Florence: Le Monnier Università, 2005). 18 This interpretation applies to Vico and Paolo Mattia Doria. The verum-​factum principle was widely discussed in the Naples of the late-​seventeenth and early-​eighteenth

320 Luna-Fabritius importantly, the fact that the appropriation of Grotius’s theories was mediated by their earlier circulation, by the likes of Francesco D’Andrea and Giuseppe Valletta, Nicolò Caravita and Gregorio Caloprese has been overlooked.19 D’Andrea referred to Grotius in his Risposta al trattato delle regioni della Regina Cristianisssima sopra il Ducato del Brabante (1667), where he wrote on the conflict between France and Spain.20 He turned to Grotius on matters of international law. In this work Grotius’s name appeared next to those of Vitoria, Molina, Mariana, Suárez and Vázquez de Menchaca.21 The case of Valletta is the best documented. Ivo Comparato provided the evidence and gave exhaustive analyses of Valletta’s uses of Grotius’s texts in Valletta’s Risposta ad amico, sopra le ragioni della città di Napoli per l’assistenze domandate alla fabrica della nuova moneta (1675),22 Disceptationes forenses (1677),23 Intorno al procedimiento ordinario e canonico nelle cause che si trattano nel Tribunale del S. Officio nella Città di Napoli (1691–​94)24 and Discorso filosofico in materia l’Inquisizione, et intorno al correggimento della Filosofia di Aristotele (ca.1696).25

centuries. The possibility of this privileged knowledge was an important matter also in Pufendorf’s natural law theory. Cf., Two Elements of Law and the ‘Introduction’ to De iure naturae et gentium. 19 S. Mastellone, ‘Note sulla cultura napoletana al tempo di Francesco D’Andrea e Giuseppe Valletta’, Critica Storica, 2 (1962), pp. 369–​398; Id., ‘Osservazioni sulle origini Seicentesche dell’anticurialismo meridionale’, Critica Storica, 4 (1965), pp. 1–​13; Id., Grozio ed il pensiero giuridico-​politico a Napoli nella seconda metà del seicento (Florence: Olschki, 1965) and Id., Francesco D’Andrea politico e giurista (1648–​1698). L’ascesa del ceto civile (Florence: Olschki, 1969); V. I. Comparato, ‘Fede e ragione nelle Discussioni istoriche, teologiche e filosofiche di Costantino Grimaldi’, in Saggi e ricerche sul Settecento (Naples: Instituto Italiano per gli Studi Storici, 1968), pp. 48–​93; R. Ajello, Arcana Juris. Diritto e politica nel Settecento italiano (Naples: Jovene, 1976), pp. 169–​172, and E. Zucchi, ‘Tirannide e stato di natura. Sul rifiuto dell’assolustimo giusnaturalista nelle Tragedie Cinque di Gian Vincenzo Gravina’, in Prima e dopo il Leviatano, ed. by M. Scattola and P. Cotton (Padua: Università di Padova, 2014), pp. 193–​226. 20 D’Andrea, Risposta. 21 Mastellone, Grozio ed il pensiero giuridico-​politico, and B. De Giovanni, Filosofia e diritto in Francesco d’Andrea (Milan: 1958), p, 136, and Id., ‘Cultura e vita civile’, p. 4. 22 Valletta, Risposta ad amico, pp. 287–​341. 23 G. Valletta, Disceptationes forenses (s.l.: J. Parisi: 1683). This work from 1678 to 1680 consists of six pieces on different legal cases and dates. 24 G. Valletta, Al Nostro ss.Mo Padre Innocenzo xii intorno al procedimiento ordinario e canonico nelle cause che si trattano nel Tribunale del S. Officio nella Città di Napoli (1691–​ 94) published as Lettera del Signor Giuseppe Valletta in Difesa della moderna filosofia, … (Rovereto: P. Berno Libr, 1732) from now on referred as Discorso. 25 Valletta, Discorso.

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In the first text, Risposta ad amico, Valletta referred to Grotius to argue that the monarch should guarantee that the exterior value of the coin coincides with the internal one, for matters regarding the coin belong to the field of natural law and the Prince had no discretional right over natural law.26 Like Grotius, Valletta argued that in the exchange of goods and commerce the coin maintains the stable value formerly contracted by the monarch and the people. He recognized that despite the monarch’s regalia to survey its production, the value had to be as agreed by the different parties. Along the lines of the Huguenot Charles Du Moulin, Valletta argued that the coin was regulated by a natural and primordial law articulated by the people that invented the coin, and from this foundational act derived the contracts, commerce and indeed all human society.27 In Risposta ad amico Valletta was not only interested in and referring to Grotius, he was also interested in German jurisprudence, as it allowed him to compare similar economic and political situations with the Kingdom of Naples.28 A few years later, Valletta published a compilation in the Disceptationes of his best juridical works. Written one decade after the Risposta of his ‘praeceptor meus’, D’Andrea, Valletta’s Disceptationes was an attempt to continue the renewal of the Neapolitan legal practice that Vico would celebrate two decades later in his Diritto Universale. The Disceptationes included different legal cases that Valletta wanted to share with his Neapolitan colleagues to expand their knowledge of the intellectual sources and commentators of Roman Law.29 Valletta was convinced that samples of real cases deeply embedded in erudition could thrust further the developments of legal practice and juridical science. Regarding these legal cases, in private correspondence with Antonio Magliabechi in the 1670s, Valletta expressed his intention to publish his Disceptationes to make available the new elements of European political and

26 Grotius’s De iure belli ac pacis, iii.2.7, cited by Valletta, Risposta ad amico, ff. 239r, 239v., p. 305. 27 ‘perché le genti l’inventarono, e da ese nacquero li contratti, et i commercii alla società humana’, C. Molinaeus, ‘Tractatus contractuum et usurarum, redituumque pecunia constitutorum’, in Omnia quae extant opera, (Parisiis: 1681), ii, quaestio 100, pp. 306–​330 in Valletta, Risposta, f. 230r p. 293. 28 P. Schiera, Il cameralismo e l’assolutismo tedesco (Milan: A. Giuffrè, 1968). 29 Valletta, as Leibniz in his time, wanted to improve Roman Law by finding a ‘ratio’ able to form a universal reason. Cf. R. Orestano, Introduzione allo studio storico del diritto romano (Turin: Giappichelli, 1963), pp. 50, 88, 138; R. Ajello, Preilluminismo giuridico e tentativi di codificazione nel Regno di Napoli (Naples: Jovene,1965), pp. 2, 125 and Comparato Giuseppe Valletta, p. 74.

322 Luna-Fabritius juridical culture.30 According to Valletta and D’Andrea, their renewal included the diffusion and application of new models offered by European jurisprudence and the history to the southern kingdom. In Comparato’s analysis, the accomplishments of their innovations in legal practice were primarily methodological and consisted of the application of new conceptual instruments.31 However, even if they initially declared their intention to avoid the discussion of the principle of authority their approach led inevitably to its deconstruction. For Comparato, there is enough evidence to establish the continuity between D’Andrea’s Risposta and Valletta’s Disceptationes. While the first piece, in 1667, already demonstrated D’Andrea’s mastery of European juridical literature, natural law and international law,32 Valletta’s work confirmed the selection and showed the interaction of European and Neapolitan counterparts thereof.33 The display of mastery of European sources in Valletta’s legal practice was also a way to show his superiority as an interpreter and executioner of the law in Neapolitan law courts. For instance, in a legal case on the succession right in Naples, Valletta found the opportunity to refer to Alciato, Cujas, Bodin, Godefoy and Grotius.34 Likewise, in other cases, Valletta referred to Grotius’s erudition on Latin texts and his elegant and cultured jurisprudence.35 Ultimately, the institution of his erudition in the Disceptationes established his authority as a legal commentator of his time, a time that he considered as primitive and dominated by natural law, which was still a valid reference in legal practice. Valletta quoted almost literally a passage from De iure belli.36 In this excerpt, Valletta argued for the need to defeat the primitive elements of society: early forms of property (that according to Cicero were not natural but occupational), primitive laws and forms of commerce.37 After redefining legal practice, a more significant challenge came in 1688 when the Roman Inquisition opened a case against the former members of the

30

From Valletta to A. Magliabechi, Naples November 1681 and 12 May 1682, B.N.F. in Comparato, Giuseppe Valletta, p. 58. 31 Comparato, Giuseppe Valletta, p. 52. 32 Mastellone, Francesco D’Andrea, pp. 37–​50. 33 Comparato, Giuseppe Valletta, pp. 52–​53. 34 Valletta, Disceptationes, pars ii, pp. 111–​128 in Comparato, Giuseppe Valletta, p. 59. 35 Idem. 36 Grotius De iure belli, ii.2.2; ii.2.6 and Disceptationes, pars ii, p. 77 rehearsed the seats-​ in-​the-​theatre simile that occurs in ibp ii.2.2.1; Comparato, Giuseppe Valletta 70 and De Giovanni, Cultura e vita civile, p. 16. 37 Valletta, Disceptationes, p. 76 (on family, from Florum sparsio) ; pars ii, p. 59 (punishment according to desert, from ibp ii.20); pars ii, pp. 77–​8. Valletta quotes from Velthem’s comments on ibp. (pars ii, p. 80).

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already closed Accademia degli Investiganti, known as the trial of the atomists-​ atheists (1688–​1697). In those years Valletta and Serafino Biscardi, the later fiscal to the Royal Court of Auditors, pronounced against the procedures of the Roman Inquisition, in particular torture. There was an antecedent piece on this topic: in 1668 Domenico De Rubeis, who happened to be another reader of Grotius and had written against torture in his Forensium certaminum specimen.38 In this manner, a certain idea of the caducity of primitive laws, and principally of torture as primitive element of legal practice, went in crescendo until the end of the century. These authors constituted a fresh wind that brought to Naples new historical and learned citations to renew an ‘exquisitely local atmosphere’.39 By around 1696 Valletta wrote the manuscript ‘Al Nostro ss.Mo Padre Innocenzo xii intorno al procedimento ordinario e canonico nelle cause che si trattano nel Tribunale del S. Officio nella Città di Napoli’.40 This manuscript became immediately well-​known as a defence of the libertas philosophandi of the members of the Accademia degli Investiganti, still under process by the Roman Inquisition. The Discorso, as this text was known, was an extremely sophisticated piece that aimed at settling the achievements of the Investiganti in the history of Western philosophy. It circulated in several versions before its publication in 1732. Curiously enough, the authors discussed therein are not introduced, giving the impression that it was written for an audience fully emerged in the contexts of the discussions of the Investiganti. However, the Index Librorum Prohibitorum had forbidden most of them, and this made it a key piece for the intellectual history of the circulation of forbidden texts in Naples. The Discorso included a history of ancient and contemporary commentaries on the bible and the Church Fathers published all around Europe. Two of the most complicated matters of this account were the theological matters on the immortality of the soul and God’s providence. For instance, for Valletta Democritus was a crucial source for the history of the notion of providence. He presented Democritus’s idea of providence as an imaginary force of nature formed by human’s needs that gradually discloses to the human mind over

38

D. De Rubeis, Forensium certaminum specimen. Accesserunt in prima quatuor certamina paraphrases hexametris illigatae (Naples: Bonis, 1668), i.a. Certamen viii (p. 261), note 64, and (p.267) note 95, the latter quoting De iure belli, iii.19 on fides; Certamen xii (p.357) note 11, quoting Graevius. 39 Comparato, Giuseppe Valletta, p. 78. 40 The copy found in Croce’s library is dated 1696 and the one in the National Library of Naples 1697.

324 Luna-Fabritius time. At the core of this account emerged an argument on the utility of maintaining providence and the Catholic Church as the foundations of politics to overcome and set aside the problem of scepticism. This concern is already present in Valletta’s Risposta ad amico where he expressed his intention to reformulate the political foundations of the State and the civil laws, put at stake by what he called the inflation of opinions that circulated in his time. Valletta aimed to establish a universal principle to tackle scepticism and the multiplicity of the bilateral relations mediated exclusively by the sovereign –​ as was the common practice in the Spanish monarchy.41 For Comparato, scepticism was another reason to look at Grotius’s theory, for it allowed Valletta to start the reconstruction of the foundations of his theory of the State without making crucial decisions on topics related to confessional matters at the beginning of his enterprise.42 Central in the Discorso and derived from the problem of scepticism was Valletta’s discussion of appetitus societatis. The multiplication of opinions regarding human nature that resulted in man’s unsociability was Valletta’s main concern. He conceived humans as unsocial beings. In his discussion of their moral capacity, humans in the state of nature had no capacity to sign a contract or to establish a civil state, nor to maintain their bonds to natural laws. They lacked the rationality needed to understand natural laws and the distinction between natural law and ius civile. Essentially, at the beginning of time, for Valletta, human beings had no moral faculty for individual freedom.43 Thus despite the choice of Grotius’s theory, Valletta did not share his account of sociability. This phenomenon can be explained by one of two factors: either Grotius was indeed D’Andrea’s choice, as Comparato has suggested, or Grotius’s theory was useful for Valletta to initially structure his political theory, while he began departing from Grotius in the following decades during which Valletta became more aware of the kind of theory he wanted to build. Ultimately, the constant element in Valletta’s enterprise was to find the presence of an immutable element in civil life, which he found in a constant external thread, superior to positive law. With this immutable element Valletta

41 Idem. 42 Valletta, Risposta ad amico, f. 244v and Comparato, Giuseppe Valletta, pp. 47–​50. 43 For a discussion on this matter see Comparato, Giuseppe Valletta, pp. 291, 306, 311, 335; Id., ‘A Case of Modern Individualism: Politics and the Uneasiness of Intellectuals in the Baroque Age’, in The Individual in Political Theory and Practice, ed. by J. Coleman (European Science Foundation, Clarendon Press, 1996), pp. 148–​170; Mastellone, Pensiero politico, p. 54; Id., Francesco D’Andrea, pp. 44–​45; and Badaloni, Introduzione, pp. 207–​208.

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intended to build a new set of norms to regulate the performance of the Prince and the public institutions of the State. The thread that Valletta needed was a universal idea of justice to measure the economic and political disorders of the kingdom with the Spanish monarch and the barbarity of the Roman Inquisition with the Pope.44 These were the bilateral relations that he constantly fought. To build this political vision, Valletta’s proposal consisted of creating a system based on a historical and universal analysis of the law to undergird norms sufficiently truthful to make them evident and intrinsically binding. The element capable of providing stability to the new system and set of norms was his newly minted notion of providence understood as human needs over time. This was his solution to the problem of human sociability and the lack of appetitus societatis brought to Naples by the ‘inflation of opinions’. This explanation is supported by the rhetoric employed in Valletta’s text, the aim of which was to persuade the reader of the utility of maintaining the authority of the church, and to warn against the imprudence of the academics who entered into matters of faith. In open confrontation with the Inquisition, this was also a rhetorical invitation to the church to avoid mixing ‘such delicate matters of theology’ with politics. Actually, in his account of natural philosophy, Valletta invalidated theological texts by arguing their lack of reliability. In the Discorso, the idea of the impossibility of grasping an indisputable and universal idea of truth is found, forging Valletta’s preference for a discussion on providence. He wrote at great length on the poverty of the human intellect to understand such difficult matters of truth. This is undoubtedly the strongest argument of the text, for Valletta argued that the price that human beings had to pay for the liberty of their intellect, the libertas philosophandi, was the recognition of the abyss that separated them from the knowledge of God.45 As is evident by the tone of this statement, this was a rhetorical invitation for the development of a philosophical position in order to obtain more liberties, such as the liberty to investigate and, more importantly, political liberty. It is in this sense that the Discorso can be considered as an argument for the separation of matters of faith from matters of politics in line with Grotius’s Erastianism, and in line with the texts of his contemporaries Di Fusco and Caravita.

44 Comparato, Giuseppe Valletta, pp. 47–​50. 45 In this argument, Valletta goes along the lines of P. D. Huet in his Traitè philosophique de la foiblesse de l’esprit humain (1690) (London: J. Nourse, 1723) and against Descartes’s position on this matter. Valletta, Discorso, [ms. b.n.n. i.e. 20] ff. 114v-​115r and in the printed version from 1732, pp. 179–​180.

326 Luna-Fabritius By 1691 to 1695 Valletta was put forward as a representative of the square of the people, one of the most important functions in the City of Naples, and as the advocate of the poor. By this period Valletta was convinced of his incorporation to a Republic where honesty and prestige ruled, that is to the Republic of Letters.46 In his seminal work, Comparato affirmed that since his early work the Risposta Valletta turned to Grotian natural law, which had already circulated in Naples long before the revisions of Hobbes, Pufendorf and Spinoza, and the English political doctrines. In hindsight one can say that Grotian natural law anticipated a specific way of writing about politics that would have found its full expression in the mature Enlightenment, and on particular themes for the kingdom, mainly the law, justice, and the coin, on which the most vivid and thoughtful minds of the new century focused their efforts. 2

Providence in the Context of the Defence of the Privileges and Local Liberties

The 1688 establishment in Naples of extraordinary tribunals against four members of the Investiganti by the Roman Inquisition provoked the reaction of the giuridizionalisti employing their old and new practices in the defence of the privileges and local liberties of the City of Naples. In the opinion of the Roman Inquisition, headed by the Jesuits, Catholic Orthodoxy was at stake due to the scientific discoveries and their application in all domains of life by the members of the Accademia degli Investiganti. The academics were arrested in 1691 after the election of Pope Innocent xii. Filippo Belli and the mathematician Giacinto De Cristoforo were indicted for teaching atheist and heretical prepositions through their atomic theories. In this way, the trial of the Investiganti turned into an attack on the atomists-​ atheists. Immediately upon the start of their persecution, the other academics intensified their response, and influential pamphlets were written and distributed in the defence of the indicted. Amongst the best known are those in defence of the atomists by Francesco D’Andrea (1694)47 and the arguments in 46 47

Idem, p. 85. F. D’Andrea, apart from being a jurist was a natural philosopher, Apologia in Difesa degli Atomisti (1685) (Naples: Liguori, 1995), pp. 59–​109; Mastellone, ‘Note sulla cultura napoletana’, pp. 369–​398; and A. Borrelli, D’Andrea Atomista: L’ ‘Apologia’ e altri inediti nella polemica filosofica della Napoli di fine Seicento (Naples: Liguori, 1995) and Stone, Vico’s Cultural History.

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favor of the loyal city of Naples against the extraordinary procedure of the Holy Office by Nicolò Caravita (1696).48 These texts together with other, smaller pamphlets reflected the mobilisation of Neapolitan society behind the case of the atomists-​atheists. It was in this context that references to Grotius’s theories reached their highest moment in Naples. Valletta’s manuscript Discorso written around 1693 to 1696 to contest the authority of the Pope in the Neapolitan kingdom, as mentioned above, circulated mostly in manuscript. However, the dissemination of Valletta’s uses of Grotius was to a great extent mediated by the Jesuit Giovan Battista De Benedictis who considered Valletta one of the champions of the fight against the Inquisition and the propagation of Grotius in Naples. In 1694, De Benedictis published his defence of Scholastic philosophy as Lettere Apologetiche in Difesa della Teologia Scolastica e della Filosofia Peripatetica.49 De Benedictis´s Lettere consists of five letters addressed to fictional characters that could easily be identified as members of the Accademia degli Investiganti,50 namely Filippo D’Anastasio,51 the translator of Descartes’s Principia,52 Leonardo Di Capua, Tommaso Cornelio, Francesco D’Andrea, Giuseppe Valletta53 and Nicolò Caravita.54 De Benedictis’s accusations against the Investiganti were severe attacks and might well have provided the evidence that the Inquisition could have used at any moment to steer the trial against all the Investiganti.

48 Caravita, Ragioni. 49 Benedetto Aletino [=​Giovanni Battista De Benedictis], Lettere apologetiche in difessa della teologia scolastica e della filosofia peripatetica (Naples: G. Raillard, 1694). 50 De Benedictis, Lettere ; and G. Spini, Ricerca dei libertini, la teoria dell’impostura delle religioni nel Seicento italiano (Rome: Universale di Roma, 1950); R. Ajello, Gli “afrancesados” a Napoli nella prima metà del settecento. Idee e progetti di sviluppo (Naples: Guida, 1985); Id., Cartesianismo e cultura oltremontana al tempo dell’Istoria Civile. Pietro Giannone e il suo tempo (Naples: Jovene, 1980) and Mastellone, Pensiero politico. 51 The attack was against Arrigo Filostasia whose civil name was Filippo D’Anastasio (1656–​1735). 52 R. Descartes, Principia philosophiae, trad. Arrigo Filostasia; P. Sposato, Le Lettere provinciali di Biagio Pascal e al loro diffusione a Napoli durante la rivoluzione intellettuale della seconda metà del secolo XVII. Contributo alla storia del giansenismo e del giurisdizionalismo nel Regno di Napoli (Tivoli: Chicca, 1960), p. 55 and G. Belgioioso, ‘Philosophie aristotélicienne et mécanisme cartésien à Naples à la fin du XVIIe siècle’, Nouvelles de la République des Lettres, 14/​1 (1995), pp. 19–​47; Id., ‘Images of Descartes in Italy’, in Reception of Descartes. Cartesianism and Anti-​Cartesianism in Early Modern Europe, ed. by T. Schmaltz (London: Routledge, 2005), pp. 171–​196. 53 Comparato, Giuseppe Valletta. 54 ‘Lettera di De Benedictis all’arcivescovo di Benevento’, cited by S. Fodale, ‘Nicolò Caravita’, Dizzionario Biografico, ad vocem.

328 Luna-Fabritius De Benedictis published a second text in 1695 strongly condemning modern culture: Turris Fortitudinis propugnata a filiis lucis adversus filiis tenebrarum. Here he argued against the libertas philosophandi and defended theology and scholasticism. For De Benedictis the libertas philosophandi was propagated by atheists and libertines, heretics coming from the Netherlands and other reformed countries. All these authors working on the institution of a new science have only brought about the ruin of all human arts.55 De Benedictis pointed at the partisans of the Accademia degli Investiganti as responsible for the propagation of profane concepts and false truths through their texts. The dissemination of the Cartesian method had led Neapolitans to scepticism and atheism. He scorned the Investiganti for publicizing their discoveries of natural phenomena, systems of the universe and methods of philosophising. In his conclusion, the giurisdizionalisti were portrayed as interpreters of the law and reformers of the constitution of the State, and like their European counterparts, for setting natural law above civil and ecclesiastical laws. In so doing, they presumably subverted not only the laws and foundations of the State, but also the laws of the Church on which rest the bonds of law and society.56 However, Descartes was not the only one De Benedictis held responsible for the development of the heterodoxy in the Neapolitan kingdom. For the Jesuit professor of philosophy at the Collegio Massimo di Napoli, all philosophy from Leucippus, Democritus, Epicure, Lucretius to Descartes, Gassendi, Hobbes and Magnen were part of the same problematic lineage.57 Epicure’s philosophy had been used to eliminate providence and demolish the teachings of the Church with his thesis on the composition of all things from atoms. According to De Benedictis, Valletta had introduced the idea of a new tradition of Neapolitan thought starting with Leonardo Di Capua, who should be considered as the Grotius of Naples.58 Valletta responded to De Benedictis’s attack with his history of Western philosophy that immediately was condemned by the Inquisition. The Discorso referred to the works of Montaigne, Pasquier, Descartes, La Mothe le Vayer, and Gassendi together with a significant number of Dutch and Italian forbidden

55 56 57 58

De Benedictis, Lettere (emphasis added) and G. Ruggiero, ‘La Turris Fortitudinis tra politici, ecclesiastici e filosofi nella Napoli di fine seicento’, Frontiera d’Europa, Rivista Storica, 9/​1 (2003), pp. 5–​174. De Benedictis, Turris Fortitudini. bnn ms. xv. B. 6, 78r-​79r. Jean-​Chrysostome Magnen author of Democritus reviviscens sive de atomis; addita vita et philosophia Democriti (London: Daniels,1646). Although Di Capua’s Parere from 1681 was forbidden by the Inquisition this work was published two more times in 1689 and 1695. Mastellone, Pensiero Politico, p. 90.

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authors, British empiricists, Hobbes,59 and Valletta –​taking up a claim by De Benedictis –​included Di Capua in that lineage. In his Discorso, Valletta succeeded in linking modern atomism with its ancient Italian foundations and the whole tradition of natural philosophy. In Valletta’s reconstruction of the beginnings and connections of the Accademia degli Investiganti, he entered a discussion that included the text by Ioannes Schefferius (1621–​1679), and in so doing he arrived at the topic of providence.60 Schefferius was one of the most important Swedish humanists from Strasburg who concluded his studies at the University of Leiden in 1639 and in Sweden in 1643. He is mostly remembered for his books Pythagorean Philosophy from 1664 and Laponia from 1673, which is a history of the Sami people. These texts served Valletta, as they did in other European contexts, to establish the grounds for comparing and combining literary with sacred, Greek and Roman classical material together with contemporary studies of northern Europe.61 From this perspective, Valletta’s objective seems to have been the decoding of these monuments of antique scholarship, and especially their beliefs.62 Hence, the approach that Vico used subsequently in his studies on the ancient origins of providence should come as no surprise, as Valletta clearly paved the road for it in the form he articulated his history of philosophy. Valletta continued his studies on human nature following the path of the Investiganti, detaching himself from the Aristotelian method and philosophy and arguing for its incompatibility with experimental science. In the Discorso Valletta cited Di Capua’s statements that the Investiganti considered themselves modern philosophers. To Di Capua he attributed the claim for intellectual freedom that opened new lines of research not only in the field of science, but also in that of civil life, where men’s capacities to associate in civil communities and obey the norms of society were discussed in terms of appetitus societatis (sociability), and happiness. Given the fact that the discussions on intellectual freedom had met the campaign for the respect of the privileges and local liberties of City of Naples, 59

Parere del Sig. Lionardo di Capua … narrandosi l’origine e il progresso della medicina … (Naples: G. Raillard, 1681). Id., Lezioni intorno alla natura delle mofete, (Naples: S. Castaldo, 1683), also published as volume 3 of the Parere (Cologna [=​Naples]: 1714). 60 Valletta, Discorso. It is important to note that Schefferius concluded his studies also at the University of Leiden in 1639 and in Sweden in 1643. 61 In Ireland John Toland (1670–​172) was also interested in studies on ancient and contemporary pagan societies, in the accounts and evidence of various ‘national origin narratives’ in France, England, Ireland, and Denmark. 62 J. Champion, Republican Learning: John Toland and the crisis of Christian culture, 1696–​1722 (Manchester: Manchester University Press, 2013).

330 Luna-Fabritius Di Capua’s claim turned into a critique of the excess of political power and led to the politicisation of Neapolitan culture. Thus, modern philosophy turned into the primary weapon to limit the authority of the Pope and the Spanish monarch.63 The structure of the debate between the giurisdizionalisti and De Benedictis on the conflict with the Inquisition in the 1690s shows how Grotius’s natural law theory and modern philosophy intertwined and were used by the Neapolitans in that time and in the following decades. After the suppression of the Accademia degli Investiganti in 1683, the giurisdizionalisti continued their activities either in formal academies or in debating societies held in private houses. Amongst the most famous tertulias were the one in the house of Nicola Caravita (1647–​1717), and the one in the house of Valletta. Di Capua died in 1695 and in 1696 Caravita maintained the Investiganti reunited around the new Spanish viceroy Luis de la Cerda, Duke of Medinacoeli. In 1698 the Duke of Medinacoeli institutionalized Caravita’s debating society as the Accademia Palatina (1698–​1701).64 The meetings organized by Caravita and the Accademia Palatina gathered the representatives of the Deputation of the City of Naples, the Investiganti –​ most of all the giurisdizionalisti –​, but also younger researchers, such as Gregorio Caloprese (1654–​1715), Gian Vincenzo Gravina (1664–​1718), Paolo Mattia Doria (1667–​1746), Giovan Battista Vico (1668–​1744), Pietro Giannone (1676–​1748), Celestino Galiani (1681–​1753) and Francesco Maria Spinelli (1688–​1752). The process against the atomists-​atheists may have ended in 1697, but the pamphlets against the extraordinary procedures of the Inquisition continued circulating in different forms. One of the recurring points in these pamphlets was an argument for the delimitation of the Pope’s authority by impugning the extraordinary trials. Amongst them, Caravita’s pamphlet containing arguments in favour of the loyal city of Naples, written around 1695 but not published until 1707, better known as Ragioni stands out. Caravita argued for the indivisibility of the sovereignty of the State.65 He was a coherent reader of Grotius, who was a constant reference in his Nullum ius romani pontificis maximi in Regnum neapolitanum (1707).66 Other texts continued discussing 63 64 65 66

Di Capua, Parere and Mastellone, Pensiero Politico, p. 99. S. Suppa, L’Accademia di Medinacoeli. Fra tradizione Investigante e Nuova Scienza Civile (Naples: Istituto italiano per gli Studi Storici, 1971), p. 11; M. Maylender, Storia delle Accademie d’Italia, 5 vols (Bologna: L. Cappelli, 1926–​1930). N. Caravita, Ragioni a pro’ della fedelissima città di Napoli contr’al procedimiento straordinario nelle cause del Sant’Officio, … (Naples: 1707 [1695]), pp. 28–​30 and 45–​46. N. Caravita, Nullum ius romani pontificis maximi in Regnum neapolitanum (1707). There is an Italian translation: Niun diritto compete al sommo pontefice sul regno di Napoli, (Aletopoli [=​Naples]: 1790) and see Fassò, Vico e Grozio, p. 30.

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non-​extraordinary forms of punishment and the limits of authority of both the Pope and the political rulers. These include Giovanni Vincenzo Gravina’s Origines iuris civilis (1708). Gravina was one of the most important readers of Grotius in this period.67 The imminent crisis of the Spanish succession led Neapolitans to concentrate on the foundations of politics. Their tone matched the developments from the past decade. Accordingly, the members of the Accademia Palatina continued evaluating the relation of the Neapolitan kingdom with the Spanish monarch as a kingdom belonging to the Crown of Aragon, and their detachment from Scholastic philosophy in their political treatises. Gregorio Caloprese occupied a central role in the new academy. His inaugural lecture Dell’origine degli imperi was a methodological and political statement. He emphasized the importance of analyzing empires by their composition, especially the smaller parts: cities and men. In Dell’origine Caloprese highlighted the importance of improving knowledge of human nature by focusing on the human body and the passions.68 Along the lines of Descartes, he suggested the study of human passions as the engine that moved humans into action to satisfy their interests and needs. By analysing human actions from a historical perspective, he aimed at understanding human patterns and thus the hidden behaviour of providence in the long term.69 From 1700 to 1750 Neapolitan authors continued with the agenda established by the Investiganti and systematized by Valletta and Caloprese: the foundations of the state. During the first decades of the new century, Doria and Vico sketched their political philosophies, thus taking a further step: the conceptualisation of the problems of sociability and happiness. In 1709 Doria published, La Vita Civile, which subsequently saw different editions, while Vico explored the power of history and rhetoric70 and methods of 67

68 69 70

G. V. Gravina, Opera seu Originum iuris civilis … (Lipsiae: Apud Joh. Frid. Gleditschii B. Filium, 1737). This text was published again in Venice in 1739, together with other works in Venice in 1750 and Naples in 1756. The second book of the last has been recently edited by F. Lomonaco, Gianvincenzo Gravina e il De romano imperio liber secundus (Naples: Liguri, 2004) and F. Lomonaco, Filosofia, diritto e storia in Gianvincenzo Gravina (Rome: Storia e Letteratura, 2006). A. Luna-​Fabritius, ‘Passions and the Early Italian Enlightenment: Human Nature and Vivere Civile in the Thought of Gregorio Caloprese’, European Review of History, 17/​1 (2010), pp. 93–​112. G. Caloprese, Dell’origine degli imperi: un’etica per la politica, ed. by Enrico Esposito and Alfonso Mirto (s.l.: Salviati, 2002), pp. 79–​80 ; and D. L. Marshall, Vico and the Transformation of Rhetoric in Early Modern Europe (Cambridge: 2010). P. M. Doria, Vita Civile, Seconda edizione, Daniello Hopper, 1710; and G. B. Vico, Institutiones Oratiae, The Art of Rhetoric, from the definitive Latin edition and notes, Italian

332 Luna-Fabritius pedagogy,71 before drafting his Diritto Universale, published between 1720 and 1722, and his Scienza Nuova, published in 1725. At Doria’s suggestion, Vico wrote on the most ancient wisdom of the Italians, which in this context might be seen as a continuation of Valletta’s Discorso in search of a constant element in the process of civilisation. 3

Defining Providence

In his Discorso Valletta … defined il fato as the variable that considers the needs and abilities of which the mind is not yet aware, as the element that orders and complements the causes established by providence understood as human needs, interests and passions in a particular moment. For Valletta il fato was a law by means of which providence orders everything in human actions.72 According to the lessons of their mentors Valletta and Caloprese, Doria and Vico concentrated primarily on individuals and their passions: the motor of human action. While Doria developed his sophisticated theory of human passions in his Vita Civile, Vico’s major work Diritto Universale followed Valletta’s demand to deal with the questions posed by the discussions of Roman Law. Diritto Universale together with Scienza Nuova were not only the principles of a new science to transcend the limits of the Cartesian method, but they were principally a history of humanity, whose main itinerary could be traced back because nations are fashioned by humans entrenched in history. As the giurisdizionalisti did, Vico distinguished profane from sacred history and declared his incompetence in matters of faith, such as original sin and revelation. The historical process that Vico was interested in was the history of humanity, of civiltà, understood as the process of civilization of nations as the foundation of civil laws. For Vico, as for Caloprese, the historical process was the history of human beings, and it was by no means stable or static. Vico argued that men in their effort to understand the world in which they live transform both their world and themselves on an ongoing basis. Thus, if there is something that human beings can understand it is precisely their own history, because it constitutes commentary and intr. by G. Crifó, ed. by G. A. Pinton and A. W. Shippee (Amsterdam-​ Atlanta: Rodopi, 1996). 71 G. B. Vico, De Nostri Temporis studiorum Ratione (Naples: Felicis Mosca, 1709), edited as: La difesa dell’Umanesimo. De Nostri Temporis studiorum Ratione, ed., tr. and comm. by M. Goretti (Florence: Felice Le Monnier, 1967). 72 Valletta, Opere filosofiche, p. 235.

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the intelligible world for them, where they can observe, describe, classify and where they can note and historicize regularities in time and space.73 Vico affirmed in his Scienza Nuova that human beings were able to know their history for they were its authors. This was the former definition of his principle of verum-​factum. For Vico, the historical process was the history of individual efforts, purposes, hopes, but also human fears and attitudes. The way to access this historical evolution of mankind, was the merger of the variety of perspectives and experiences through imagination.74 Expanding Valletta’s aim of reconstructing the history of human needs, i.e., self-​preservation, Vico’s history was a model that aimed at incorporating all the activities of human production, represented in a succession of stages of a nation. For him, there was a relation between one stage and the other that was not casual, but that rather depended on the level of consciousness that human beings had of their own activities. The historical evolution of human consciousness is the element that connects the different stages. In the first book of the Scienza Nuova Vico stated that providence is the element through which all the historical events come together to an order, where they come to make sense together with the elements that preserve human society.75 In this manner, providence is thus one of the main elements of Vico’s historical process and indeed his whole political philosophy. Moreover, providence in the Scienza Nuova resembled a collection of laws that attempt to deal with the needs, interests and passions of human beings. Human needs, however, would always take precedence and tame the desire for luxury goods also crucial for the development of the civil economy. This is Vico’s formula against the eccesso di civiltà. Providence was a collection of laws that aim at preserving humankind, that is, to overcome human unsociability. Providence was Vico’s solution to the problem of appetitus societatis. In this Neapolitan context, the main aim of which was to overcome both Scholastic philosophy and (following Grotius framework of natural law) barbarian times, Vico’s conception of providence allowed him to grasp the spirit of human consciousness over time to form the core of his universal laws.

73

A. Luna González, ‘De Storia Civile. Algunas ideas de Historia en la Italia preilustrada: Giambattista Vico, Pietro Giannone y Antonio Muratori’, Tiempo y Región, Estudios Históricos y Sociales, 1 (2007), pp. 283–​312. 74 Idem. 75 G. B. Vico, Scienza Nuova prima. Principii di una scienza nuova d’intorno alla natura delle nazioni, con la polemica contro gli ‘Atti degli eruditi’ di Lipsia, ed. by F. Nicolini (Bari: Laterza, 1931), pp. 345–​346.

334 Luna-Fabritius In Vico’s understanding, despite the fact that this set of laws come from different places of the world and the most diverse epochs, and are therefore unknown to each other, they follow a common motivation that he occasionally calls common sense. The common sense of humankind that Vico referred to was the principle taught to nations by providence: the consciousness of human needs warrants the laws of nations.76 All the nations could understand these laws of nations, for everybody had contributed to the creation of this common sense one way or the other as authors. Vico’s laws of nations manifest themselves as the common background to all humans every time they enter a war, establish alliances or engage in commerce. Defined in this manner the laws of nations are universal and eternal.77 The Scienza Nuova was thus the history of the spirit of those laws that structure Vico’s civil theology of providence. Finally, providence in Vico’s philosophy of history was a force that eventually would transform human’s natural vices to make them sociable in civil life. Providence was the force that would solve the problem of appetitus societatis, avoiding the destruction of humankind by transforming the remnants of a barbarian civilisation into a well-​ordered civil society. Providence might act through the development of simple cultural customs or through the economy of civil life. Moreover, providence would be the driving force to sociability and human happiness. Vico’s laws of nations were thus from the very beginning civil laws, grounded on a secular understanding of providence, the historical life.78 4

Conclusion

Whilst the historiography has questioned the character of the discussions on providence and the forms of appropriation of Grotius’s ideas at the turn of

76 Vico, Scienza Nuova, p. 145. 77 Idem. 78 Note by F. Nicolini in Vico, Scienza Nuova, p. 342. See also Vico’s own summary, id., p. 283: ‘Una propia filosofia dell’umanita, che è una continova meditazione sopra quanto vi volle onde i violenti di Obbes, gli scempioni di Grozio, i destituti di Pufendorfio, fin dal tempo che Giove atterrò i giganti, tratto tratto si conducessero a’ tempi che in Grecia sur ero i sette sappienti, il cui principe Solone insegnasse agli ateniesi il celebre motto K Nosce te ipsum da’ quali incominciarono i greci a compiersi nell’ umanita per massime. Alla quale, per certi sen i umani, erano stati per tutto il tempo innanzi di mille e cinquecento anni dalla sola provvedenza condotti, incominciando essi a formare l’umana generazione prima con la religione d’una divinita provvedente, quindi con la certezza de’ figliuoli, e finalmente con le sepolture degli antenati. Che sono i tre principi, che noi sul cominciare ponemmo, dell’universo civile’.

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the eighteenth century in Naples, the foregoing study has provided enough evidence to establish the appropriate context for a contextual discussion that revolved around science, anthropology, history and rhetoric. This study has shown that rather than passively repeating ideas in Grotius’s texts, Neapolitan giurisdizionalisti came to terms with Grotius’s ideas in different ways and that the discussions and practices produced in Leiden played a key role in this process. The study argued that Grotius’s editions of classic texts were equally important as channels of dissemination of his ideas and Leiden’s discussions. It suggested the possibility that the jurists of the Spanish monarchy, converged in Leiden or somewhere else, developed and shared practices to deal with the Spanish monarch; those practices transformed at a higher speed over the late seventeenth-​century political events. In the case of the Neapolitans, their practices transformed when they had to use their expertise to deal with the Pope and the Inquisition in a crucial moment of the Counter-​Reformation era. The core thesis of this study is that a set of practices to defend local privileges and liberties were in constant transformation and they ended up transforming the language of privileges into the language of rights across Europe. Grotius taught that these privileges turn into rights when they can be historicized, defended by force, and theorized in a more subjective manner –​arguments which lead to the emergence of modern political philosophies in both Protestant and Catholic political states. Grotius developed this theoretical model in Apologia (1619) and in De Imperio circa sacra (1647), that Neapolitans learned from it either in person, through the channels of communication of the girusdizionalisti within the Spanish monarchy, the reading of his texts, or by the formulations of commonplaces transmitted through the main channels of the Republic of Letters. By reconstructing the appropriation of this Grotian theoretical and argumentative strategy, this study has thus attributed to Grotius and the Academy of Leiden a key role in the transformation of legal practices and the evolution of political philosophy in Naples between 1650 and 1750. This study has also shown how the impact of European scientific knowledge, which the Neapolitans discussed informed and contributed to the developments of natural jurisprudence in Naples. In so doing, this chapter has expanded Vico’s scientific context created by the paramount studies by Badaloni in 1995 and 2005 to the scientific authors included by Valletta in his Discorso, in which Grotius’s editions and commentaries to important scientific discussions played a crucial role. Neapolitan thinkers, much like their European counterparts, discussed appetitus societatis in the terms settled by the new physiological discoveries, and the most refined texts on the customs of ancient and contemporary groups beyond the sphere of Christianity. This line of comparative enquiry is proof of Neapolitans’ engagement in Pufendorf’s developments thereof.

336 Luna-Fabritius Finally, this study has shown how providence and il fato, were reformulated in Neapolitan texts simultaneously with the foundation of modern philosophy and that a strong scientific background characterized the research that informed their conceptualizations.

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Index Adelung, Johann Christoph 143 Ahnert, Thomas 268–​269, 275, 281 Ahsmann, Margreet 48 Ajello, Raffaele 320–​321, 327 Aletino, Benedetto [=​​Giovanni Battista De Benedictis] 327 Althusius, Johannes 45–​46, 79, 103, 129 Altwicker, Tilmann 164 Amama, Sixtinus 36 appetitus societatis 227, 314, 324–​325, 329, 333–​335 Aquinas, Thomas 9, 10, 21, 61, 107, 156, 159, 173, 187, 208, 298, 301, 310 Areshidze, Giorgi 4 Argento, Gaetano 318 Aristotle 17, 21, 62, 66, 138, 140, 143, 148, 161, 173, 176–​177, 183, 190, 193, 231, 242 308, 310 Arminius, Jacobus 32, 39–​40, 45, 48 Arrieta Alberdi, Jon 315 Asselt, W. J. van 18 Assmann, Jan 109 Augustine 9 authority 3, 7, 15, 18–​20, 37, 39–​41, 47–​49, 57, 67, 74, 93–​94, 110–​114, 121, 160, 166, 184, 189–​190, 194, 201–​220, 226, 228, 244–​245, 248, 251, 267–​272, 277–​284, 316–​322, 325, 327, 220–​331 Averroes 142 Baciero Ruiz, Francisco T. 159 Badaloni, Nicola 319, 324, 335 Bain, William vii, 83 Balázs, Mihály 137, 142 Bärthlein, Karl 232 Bastit, Michel 156, 165 Baudouin, François 105 Bauer, Dominique 17, 18, 154, 159, 165 Beckmann, Nicolaus 260 Behme, Thomas 20, 242, 244–​245, 254, 262, 263, 302, 303, 307 Belgioioso, Giulia 327 Benedict, Philip 77, 78, 89 Berlin, Isaiah 58, 79, 318 Berljak, Matija 190

Bertram, Corneille 46, 106, 106, 121 Besselink, Leonard F. M. 173, 176, 179, 180–​ 182, 185, 186–​188, 190, 192, 194–​196, 229 Beza, Theodore 16, 30, 32, 35, 37, 39, 41, 84, 86–​88, 90–​92, 102, 112, 114–​117, 124–​125, 200, 210, 217 Biagioni, Mario 143–​145 Bilson, Thomas 218 Blacketer, Raymond A. 112 Blom, Hans W. 79, 95, 174, 236, 23 Bodin, Jean 34, 45, 83, 94, 105–​106, 142, 174, 184, 214–​215, 322 Boer, Erik de 112 Bonaventura, Bertram 46 Boreel, Johannes 35 Borrelli, Antonio 326 Bozinis, Constantine A. 9 Brandon, Eric 202 Brooke, Christopher 85 Bullinger, Heinrich 46, 112 Bunny, Edmund 116 Buys, Paulus 46 Caloprese, Gregorio 319, 320, 330–​332 Calvin, John 10, 12, 16, 29, 30, 32, 78, 80, 84–​85, 89, 93, 102, 111, 112–​114, 116–​117, 124–​185, 187, 214, 255, 298 Campos Boralevi, Lea 78, 103–​105 Caravita, Domenico 319 Caravita, Nicolò 316, 319, 320, 325, 327, 330 Carpanetto, Dino 318 Carpintero, Francisco 162, 166 Carroll, Anthony J. 5 Castellio, Sebastian 114, 124–​125 Champion, Justin 329 Chotaš, Jiří 20, 223 Church Fathers 8, 37, 118, 323 Cicero, Marcus Tullius 9, 21, 68, 88 city and church 7, 13–​14, 20, 29–​50, 103, 113, 116, 125–​130, 189, 200–​209, 216, 218, 220, 247–​257, 262, 267–​268, 284, 323–​ 325, 328 Clavero, Bartolomé 315–​316 Clerici, Alberto 14, 16, 77 Coffey, John 78, 84

344 index Collins, Jeffrey 202 Comparato, Vittor Ivo 104, 315, 317, 319–​327 confessionalism 4, 5, 17, 57–​59, 62, 69–​70, 72–​74, 91, 125–​127, 150, 205, 215, 279–​ 280, 324 conjunctio officiorum 250  see also ius circa sacra consensus 11, 115–​116, 129, 191–​192, 202, 242, 250–​251 Coujou, Jean-​Paul 154 Courtine, Jean.-​François 161, 161, 164 covenant 77, 80, 179, 181, 248–​249, 253–​ 256, 298  see also consensus  see also pactum Crouzet, Denis 77, 78 Crowe, Michael Bertram 81, 174, 185, 187–​188 Cunaeus, Petrus 29, 47, 103 De republica Hebraeorum 36, 45–​49, 104–​107, 130 Sardi venales 48 Cuno, Friedrich Wilhelm 103 Darwall, Stephen 2, 307 Daussy, Hugues 90 Dawson, Hannah 272 D’Andrea, Francesco 314, 319–​324, 326–​327, 336, 339–​341 De Benedictis, Giovan Battista (=​Benedetto Alletino) 327–​330, 336 De Dieu, Ludovicus 35, 36 De Giovanni, Biagio 317–​320, 322 De Jonge, Christiaan 39–​40, 42 De Rubeis, Domenico 323 Decalogue 8, 15, 32, 41–​50, 57–​64, 72–​74, 81, 112–​114, 124, 189, 191, 210 De la Cerda, Duke of Medinacoeli 319, 330, 342 De la Mothe le Vayer, François 328 Delpiano, Patrizia 317 Democritus 323, 328, 338 Denzer, Horst 243, 259 Descartes, René 18, 30, 294–​295, 304, 310, 325, 327, 328, 339 Di Capua, Leonardo 327, 328–​330 Diels, Hermann 173 Diermanse, P. J. J. 43, 219 Diodorus Siculus 108, 109, 111, 141

Dooyeweerd, Herman 13 Doria, Paolo Mattia 317–​319, 330–​332 Döring, Detlef 246, 249, 255, 267–​268, 279, 282 Drusius, Johannes 34 Dulles, Avery 33 Du Moulin, Charles 321 Duplessis-​Mornay, Philippe 37, 88, 90 Dutch Republic 30, 38, 126–​128, 200–​204, 219, 225 Dzelzainis, Martin 85, 90, 93 Elliott, John H. 315, 316 empire 2, 30, 207, 331 Engelbrechtová, Jana vii, 95 Epictetus 143, 188 Epicure 328 Erastianism 29, 200–​220, 325 Erastus, Thomas 200–​202, 210, 218 Ertz, Stefanie 14, 19, 174–​175, 182–​184, 186–​ 187, 189, 193, 200, 271 Esmein, Adhémar 78 Estes, James M. 72 Estienne, Henri 106, 112 exceptionalism 2, 7, 45, 90, 110, 189, 138, 210 Eyffinger, Arthur 14, 19, 173, 178–​180, 203 Feenstra, Robert 48 Fernandes, João Manuel Azevedo Alexandrino 160, 167–​168 Fernández Albaladejo, Pablo 315–​316 Finnis, John 10 Firpo, Massimo 137 force 88, 94–​95, 159, 236, 247, 269, 279–​284, 312, 315 Forde, Steven 234, 308–​310 foreign intervention 13, 16, 78–​86, 90–​95 Frakes, Robert M. 106 Francken, Christian 17, 136 Frank, Günter 56, 58–​58, 104, 243, 261 Franklin, Julian H. 94, 106 Fricius (or Modrevius), Andreas 46 functio sacra 207–​215 Gajda, Alexandra 94 Galasso, Giuseppe 314 Galiani, Celestino 317, 330

345

index Gassendi, Pierre 319, 328 Gentili, Alberico 16, 78–​79, 83, 94–​95 Gerhard, Johann 251 Gerson, Jean 157–​158 Giannone, Pietro 317, 327, 330, 333, 339–​340 Giurisdizionalisti 325, 328, 330, 335 Golius, Jacobus 36 Gordley, James 156–​157 government 70, 116, 180–​184, 200, 218, 250–​ 251, 259–​262, 319 Goyard-​Fabre, Simone 289–​290 Grafton, Anthony 33, 105 Grane, Leif 56 Graswinckel, Dirck 46 Gravina, Giovanni Vincenzo 320, 331 Grégoire, Pierre 46 Grewe, Wilhelm G. 78, 82 Grotius, Hugo 2, 6–​7, 10, 12–​14, 16, 18, 19–​22, 29, 56, 59, 61, 74, 78–​79, 81, 83, 95, 103, 130, 136, 149–​150, 223, 269, 271, 278–​280, 289, 294, 298–​299, 301, 309, 314, 317, 319–​325, 327–​328, 330, 333–​335 Adamus exul 43 Parallelon 45–​49, 177, 196, 214 De jure praedae 177, 299 Christus patiens 177, 181, 190 De imperio 174 De iure belli ac pacis 10–​12, 176–​196, 221–​239, 322 De Republica Emendanda 46 Grunert, Frank 2, 275 Gunnoe Jr., Charles D. 200–​202, 210, 219–​220 Guzmán Brito, Alejandro 157 Haakonssen, Knud 2, 6, 81–​82, 174, 176n14, 183–​184, 194–​195, 223, 289, 303–​304, 309 Haara, Heikki 21, 267, 272 Habermas, Jürgen, 4n8 Haggenmacher, Peter 174–​175, 191, 194 Hardy, Nicholas 11, 318 Harris, Ian 269 Hartog, François 156 Heering, Jan-​Paul 37 Heinsius, Daniel 32, 33, 36–​37 Hemmingsen, Niels 14, 15, 56 De methodis libri duo 66–​68 Enchiridion theologicum 61–​2, 65–​66 De lege naturae 61–​2, 65–​71

Herbert of Cherbury, Edward 319 Hobbes, Thomas 6, 20, 83, 175, 183, 201–​ 203, 257–​258, 271, 278, 310, 318, 326, 328–​329 Holland, Ben 272 Hollerbach, Alexander 10 Hsia, R. Po-​chia 5 Hübener, Wolfgang 129–​130 Huet, Pierre Daniel 325 Hunter, Ian 1, 1n1, 74, 244, 268, 280, 295–​296, 302, 309–​310 Imbonati, Carlo Giuseppe 107 interreligious competition 5 Irenaeus 8 irenicism 42, 127 toleration 7, 20, 30–​31, 38–​42, 252, 268–​ 272, 279–​282 unionism 42, 174, 201, 247, 255 Irwin, Terence 164, 301, 309–​310 Israel, Jonathan I. 2, 84, 126, 203, 212, 217–​318 iura 9 ius ad bellum 3–​4, 88, 215–​216 ius circa sacra 19, 40–​42, 205–​220, 250, 262, 277–​284 ius civile 9, 191–​3, 200, 208, 216–​217, 235, 324, 262, 332–​334 ius commune 42, 87, 122–​124, 127, 231 ius divinum 19, 210–​219 ius gentium 1, 9, 19, 79, 86, 154, 166, 191–​193, 204–​210, 212, 218, 235 ius naturae 9, 19, 59–​64, 90–​81, 94, 136, 155, 190–​196, 207–​212, 219, 226, 231 ius naturale concessivum 207 ius naturale secundarium 195 ius particulare 41 Jensen, Mads Langballe 15, 56, 62, 64, 72, 74 Junius, Franciscus 14, 16, 29, 35, 102 Le paisible Chrétien 35, 39–​42 De politiae Mosis observatione 29, 39–​41, 102–​130 justification through Christ 7, 10, 11, 13, 16, 20 Juynboll, Wilhelmina Maria Cornelis 34 Kahl (Calvinus), Johann 106 Kaltenborn, Carl von 59, 61

346 index Kaufmann, Thomas 58 Keckermannus, Bartholomeus 46 Kelley, Donald R. 105 Keserű, Bálint 137, 144 Kisch, Guido 15n32 Koetsier, L.S. 80, 81n14 Kontler, László vii, 95, 315 Korkman, Petter 289, 304–​305 Krabbe, Erik Tygesen 65 Krieger, Leonard 254 Krumwiede, Hans Walter 263 Kubben, Raymond 83 Lachs, Phyllis S. 37 Languet, Hubert 90 Laplanche, François 104 Larminie, Vivienne 82 Laurent, Pierre 106, 290 law of nations 1, 3, 4, 5, 8, 14, 79–​83, 87–​88, 136, 186, 191–​194, 224–​239 state 4, 85, 74, 182, 192, 201, 203, 209, 220, 247–​251, 268, 276, 278, 282–​284, 324, 338 Lebram, Jürgen-​Christian 33–​34, 36–​37 legitimacy 32, 63, 78, 86–​90, 93, 158, 162, 166, 168, 182–​183, 189, 196, 202, 205–​208, 217, 262, 284, 316 leges 9 lex divina 119–​122 lex humana 119–​122 natura adveniens 119 lex naturalis 119–​122 lex moralis 41, 62–​64, 114, 160 priesthood in the state of nature 214–​219 stages of divine lawgiving 119–​122, 211–​ 213, 235 Leibniz, Gottfried Wilhelm 74, 245, 275, 295–​296, 304–​305, 321 Leiden Academia  Biblical studies 34 theological debates 32 Lelong, Jacques 107 liberty 47, 50, 84–​86, 95, 157–​158, 180, 183–​ 185, 201, 210, 217, 254–​258, 261, 273, 276, 289, 312, 315–​317, 323–​325, 326–​329, 335 Lilla, Mark 144, 202 Lipsius, Justus 48, 85, 94, 174, 192 Lomonaco, Fabrizio 331

Luna-​Fabritius, Adriana 14, 22, 315, 316, 331 Luther, Martin 3, 20, 84, 185, 242, 258–​260, 262, 293 Lutheranism 20, 58, 61, 242–​263, 268–​277 political theology 70 three estates 58–​74 Magnen, Jean-​Chrisostome 328, 338 Mallinson, Jeffrey 86 Manuel, Frank Edward 104 Marion, Jean-​Luc 294 Marshall, David 318, 331 Martianus Minneus Felix Capella 33 Massaniello 314 Mastellone, Salvo 314, 320, 322, 324, 326 Max Weber thesis 77 May, William E. 141, 157, 322 Maylender, Michele 330 McFarlane, Craig John 295 McLean, Ian 95 Melanchthon, Philipp 14, 15, 20, 29, 32, 39, 56, 188, 261–​262, 293 Philosophiae moralis epitome 63–​67, 71, 261 Mellet, Paul-​Alexis 78, 82, 88 Mendus, Susan 269 Merula, Paulus 46 Miner, Robert C. 155 Mirto, Alfonso 331 modernization 4, 5 Molendijk, Arie L. 5 Molnár, Antal 144 Monarchomachs 77 morality 21, 147–​148, 176, 183, 194–​195, 212, 243, 258, 261, 270–​278, 284, 288–​289, 293, 298–​304 Christian virtues 46–​47, 177, 249, 276 virtues 63, 69–​71, 93, 279 Moreau, Pierre-​François 85 Mosaic law 8–​9, 15–​16, 33–​34, 41, 50, 105–​ 130, 189, 211, 217 ancient wisdom 109 Beza 114, 124 Calvin 113, 124 classification 108, 113, 122 common notions 121, 261 particular 122 universal 122

347

index Müller, Ernst 63 Mulsow, Martin 140 Muratori, Lodovico Antonio 318, 333 Musculus, Wolfgang 46 natural law 1–​10, 12–​15, 17–​20, 22 as moral philosophy 41, 63 Christianity 7, 9, 10, 11 Cicero 16, 80 Decalogue 8, 15, 32, 41–​50, 57–​64, 72–​74, 81, 112–​114, 124, 189, 191, 210 dictate of right reason 11, 12, 49, 157, 173, 231–​232, 245–​271 Early Modern 1–​7, 74, 78, 81–​85, 91, 94, 157, 167, 200–​201, 214, 219, 317 intellectualism 6, 185–​188 Melanchthon 14, 15, 20, 29, 32, 39, 56, 188, 261–​262, 293 methodology 49, 66, 155, 160–​162 moral precepts 41, 191, 298 and Protestantism 3, 5–​6 and Calvinism 80, 112–​117 secular 10 secularization 4–​7, 13, 16, 19–​20, 77, 81, 83, 126, 180–​181, 188, 190, 202, 261, 316 Stoicism 7, 9, 10, 80 toleration 7, 20, 30–​31, 38–​42, 252, 268–​ 272, 279–​282 universalism 7, 17, 136–​150, 176, 183, 189, 196, 205, 211, 218, 233, 242, 246, 257, 317, 321–​325, 333–​334 voluntarism 6, 7, 14, 20–​22, 185–​187, 232–​ 233, 289–​296, 301–​311 natural religion 14, 21, 146, 218, 244–​249, 269–​272, 274–​278, 284 Neff, Stephen C. 79 Nellen, Henk J.M. 32, 34, 36–​37, 176 Nelson, Eric 104, 201, 203, 217 Neuman, Kalman 104 Nicolini, Fausto 333–​334 Novak, David 10 Nussbaum, Arthur 224, 228, 235 Nussbaum, Martha C. 81, 85, 93 Nuzzo, Enrico 318 Oestreich, Gerhard 85 Olsthoorn, Johan vii, 194, 203 Opitz, Peter 112

Orestano, Riccardo 321 Origen 8 pactum  Paganini, Gianni 143 Pagninus, Santes 35, 46 Palaeologus, Jacobus 17, 136 Palladini, Fiammetta 242, 246, 259, 261, 308, 314 Passerin d’ Entrèves, Alessandro 81 Petit, Jean François le 46 Petrina, Alessandra 95 Piirimäe, Pärtel 95n75 Pink, Thomas 94, 272 Pirillo, Diego 94 Pirnát, Antal 137–​138, 141, 144 Pitkin, Barbara 85, 112 Plath, Uwe 125 Plathow, Michael 103 politia-​judaica 104–​106, 117, 121, 129 Polyander, Johannes 37 predestination 38–​40, 42–​45, 126, 181, 187, 196, 205, 256–​258, 283 Prestwich, Menna 82 Pryor, C. Scott 10, 12 Pufendorf, Samuel 6, 7, 14, 20, 21–​22, 74, 83, 95, 174–​176, 183, 185, 187–​188, 212, 239, 242, 288, 314, 320, 326, 335 De Jure Naturae et Gentium 244–​250, 270–​277, 280, 288–​302 De officio Hominis et Civis 242–​244, 270, 275, 276, 283 Eris Scandica 242, 246, 259–​261 De Habitu Religionis Christianae 242, 247–​251, 262, 267, 276, 279–​283 Jus feciale divinum 242, 249, 251, 257, 267, 279, 280, 284 Quaglioni, Diego 78, 86 Raath, Andries 86 Rabbie, Edwin 34, 37–​38, 48, 210 Rabe, Horst 250, 253, 255 Ragueau (Raguel[lus]), François 106 Ramelet, Denis 21–​22, 288 Ramelet, Laetitia vii Raphelengius, Franciscus 34 Rauschenbach, Sina 104

348 index reason 3–​4, 8, 10–​12, 15, 17, 21–​22, 63 Rech, Walter 86, 104, 226 Reinhard, Wolfgang 5 religious coercion 269 religious identity 3 Renoux-​Zagamé, Marie-​France 307 resistance theories 77–​93 revelation 7, 9, 10–​11, 17, 39, 90, 141–​149, 189, 215, 253, 258, 274–​276, 332 Rex, Richard 117 Ricuperati, Giuseppe 318 Rivet, André 37 Robertson, John 318–​319 Roman law 9, 15, 109–​111, 318, 321, 332 Roman Inquisition 314, 316, 319, 322–​323, 325–​328, 330, 335 Schefferius, Ioannes 329 Scepticism 324, 328 Rørvik, Thor Inge 290 Rosenberg, Abraham W. 37 Ross, Richard J. 17, 117 Rossiter, Elliot 302, 305–​306 Rothkegel, Martin 137, 140, 142 Rotondò, Antonio 144 Ruggiero, Gerardo 328 Saarinen, Risto 58, 158, 282 Saastamoinen, Kari 261, 276, 289 Sabine, George H. 226–​227, 233 sacred polity 3–​4, 11–​14, 19–​22, 42, 50, 58, 78, 94, 125–​128, 136, 201–​220, 229, 237, 329, 332 Sarx, Tobias 102–​103, 108, 112–​123, 125, 127 Saunders, David 244, 268, 279, 302, 308–​309 Scaliger, Josephus Justus 32, 33–​34, 45, 48 Scattola, Merio 57, 59–​60, 66, 136, 320 scepticism 324 Schaffner, Tobias vii Scherzer, Hans Karl 259 Schiera, Pierangelo 321 Schilling, Heinz 5 Schilling, Heinz, 5 Schmitt, Carl 11 Schmoeckel, Mathias 6, 13, 104 Schneewind, Jerome B. 2, 173, 173, 175, 177–​ 178, 182–​185, 187–​188, 212, 223, 232, 239, 297, 305, 308 Schneider, Hans-​Peter 74 Schnepf, Robert 225, 233

Schorn-​Schütte, Luise 58, 77 Schulthess, Daniel 306–​307, 309 Schwarz Lausten, Martin 61 Scuccimarra, Luca 79, 81, 83, 95 secularization 4–​7, 13, 16, 19–​20, 77, 81, 83, 126, 180–​181, 188, 190, 202, 261, 316 Seidler, Michael 268, 270, 274, 280, 304 Sève, René 305 Sextus Empiricus 148 Sigonio, Carlo 107 Sigonius, Carolus 35, 46 Simler, Josias 46 Simon, József 17, 136, 143–​145, 149 Skat Sommer, Mattias 62, 70 Skinner, Quentin 58, 77, 84, 89, 95, 201, 272, 315 sociability 4, 21, 178–​184, 224, 230, 243–​4, 249, 269–​76, 283, 305–​309, 334 unsocial sociability 195, 324, 333 societas hominum 85–​95 society 8, 19, 40–​41, 49, 63, 72, 85–​95, 127–​ 128, 166, 177–​185, 189, 210, 227–​230, 236, 244–​246, 255, 276–​278, 317, 321–​322, 328–​330, 333–​334 Sommerville, Johann P. 202 Somos, Mark 33, 126–​127, 201, 315 sovereignty 7, 11, 14, 31, 47, 50, 89–​90, 182, 184, 202, 207, 215–​216, 244–​245, 250, 254, 262, 268, 282, 302, 309, 330  see also summum imperium Spinelli, Francesco Maria 330 Spini, Giorgio 327 Spinoza, Benedictus 30, 201–​202, 219, 278, 326, 339 Sposato, Pasquale 327 St. Leger, James 223 St. Paul 9 Stephani, Joachim 107 Stevin, Simon 33 Stiening, Gideon 58 Stoicism 123 Stolleis, Michael 6 Straumann, Benjamin 81, 226, 228 Strauss, Leo 10, 12, 234 Strohm, Christoph 4, 6, 117, 125 Suárez, Francisco 14, 15, 17, 18, 19, 39, 58, 93, 154, 185, 188, 208, 210, 217–​218, 231n–​ 232, 235, 237–​238, 289, 320 Summenhart, Conrad 157

349

index summum imperium 262 Suppa, Silvio 330 Szczucki, Lech 137, 138–​139, 141–​144 Ter Meulen, Jacob 43, 219 Terentius Afer, Publius 92 theocracy 19, 46, 129–​130, 202–​206, 216–​218 Thieme, Hans 246 Thysius, Antonius 37, 46 Tierney, Brian 81, 158, 226 Todescan, Franco 190 toleration 7, 20, 30–​31, 38–​42, 252, 268–​ 272, 279–​282 Torpey, John 4 Totzeck, Markus M. 16, 102, 104–​105, 117 Tremellius, Immanuel 35, 102 Trim, David J. B. 79, 90–​91 Troeltsch, Ernest 5, 8 Troje, Hans Erich 105 Tuck, Richard 81, 83, 95, 184, 195, 201, 225–​ 226, 233 Turchetti, Mario 82, 84 tyranny 18, 44, 78, 83–​94, 204, 217 unionism 42, 174, 201, 247, 255 universalism 7, 17, 136–​150, 176, 183, 189, 196, 205, 211, 218, 233, 242, 246, 257, 317, 321–​ 325, 333–​334 Valletta, Giuseppe 315–​333, 335 Van Asselt, W. J. 18 Van Gelderen, Martin 58, 77, 83–​84, 201, 272, 315 Van Hoogstraten, Jan 46 Van Rooden, Peter T. 36–​37

Van Vollenhoven, Cornelis 225 VanDrunen, David 6, 13, 80 Varkemaa, Jussi 158 Vasquez de Menchaca, Fernando 223, 301 Vazquez, Gabriel 188 Vico, Giambattista 22, 315, 317–​319, 321, 326, 329–​335 Villari, Rosario 315 Vitoria, Francisco de 58, 73, 79, 83, 158, 320 Von Ungern-​Sternberg, Antje 79 Vossius, Gerardus Joannes 33, 35, 37, 39–​40, 42 Walaeus, Antonius 35–​37, 49, 49, 181 Waldron, Jeremy 269 Weber thesis 6 Weemes, John 104, 116–​117 Weigel, Erhard 245 Weiss, Matthias 58 Welwood, William 102, 106 Welzel, Hans 243 Westerman, Pauline 295 Wijaczka, Jacek 143 Wilberforce, Robert Isaac 200 Williams, Bernard 18 Winiarczyk, Marek 145 Witte Jr., John 57, 60, 69–​80, 84, 113 Yelle, Robert A. 11 Zarka, Yves-​Charles 81 Zepper, Wilhelm 116 Zucchi, Enrico 320 Zurbuchen, Simone 243, 247, 249, 267–​268, 274, 282–​283 Zwierlein, Cornel 5