Time, History, and Political Thought 1009289365, 9781009289368

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Time, History, and Political Thought Between the cliché that ‘a week is a long time in politics’ and the aspiration of many political philosophers to give their ideas universal, timeless validity lies a gulf which the history of political thought is uniquely qualified to bridge. For what the history of political thought shows is that no conception of politics has dispensed altogether with time, and many have explicitly sought legitimacy in association with forms of history. Ranging from Justinian’s law codes to rival Protestant and Catholic visions of political community after the Fall, from Hobbes and Spinoza to the Scottish Enlightenment, and from Kant and Savigny to the legacy of German Historicism and the Algerian Revolution, this volume explores multiple ways in which different conceptions of time and history have been used to understand politics since late antiquity. Bringing together leading contemporary historians of political thought, Time, History, and Political Thought demonstrates just how much both time and history have enriched the political imagination. John Robertson is Professor Emeritus of the History of Political Thought at the ­University of Cambridge and Honorary Professor of the History of Political Thought at the ­University of St Andrews. Previously he taught at Oxford, and he has held visiting appointments in the United States, Italy, France and China. He is a Foreign Member of the Academy of Moral and Political Sciences, Naples. His publications include The Case for the Enlightenment: Scotland and Naples 1680–1760 (2005), The Enlightenment: A Very Short Introduction (2015) and, as editor, A Union for Empire: Political Thought and the Union of 1707 (1995) and Andrew Fletcher: Political Works (1997).

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Time, History, and Political Thought Edited by

JOHN ROBERTSON University of Cambridge

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Shaftesbury Road, Cambridge cb2 8EA, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of Cambridge University Press & Assessment, a department of the University of Cambridge. We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781009289368 DOI: 10.1017/9781009289399 © Cambridge University Press & Assessment 2023 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press & Assessment. First published 2023 A catalogue record for this publication is available from the British Library A Cataloging-in-Publication data record for this book is available from the Library of Congress ISBN 978-1-009-28936-8 Hardback Cambridge University Press & Assessment has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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Contents

List of Contributorspage vii Acknowledgementsx Note on References and the Bibliographyxii

Introduction: Time, History, and Political Thought1 John Robertson

1

Out of Time? Eternity, Christology, and Justinianic Law36 Caroline Humfress

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Historicity and Universality in Roman Law before 160054 Magnus Ryan

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‘The Logic of Authority, and the Logic of Evidence’67 George Garnett

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Christian Time and the Commonwealth in Early Modern Political Thought84 Sarah Mortimer

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Politic History102 Kinch Hoekstra

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Hobbes on the Theology and Politics of Time136 Quentin Skinner

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The Recourse to Sacred History before the Enlightenment: Spinoza’s Theological–Political Treatise156 John Robertson

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Law, Chronology, and Scottish Conjectural History179 Aaron Garrett v

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Contents

9 Civilization and Perfectibility: Conflicting Views of the History of Humankind?194 Silvia Sebastiani 10 Kant on History, or Theodicy for Mortal Gods216 Chris Meckstroth 11

Law’s Histories in Post-Napoleonic Germany237 Charlotte Johann

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After Historicism: The Politics of Time and History in Twentieth-Century Germany259 Waseem Yaqoob

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The Right to Rebel: History and Universality in the Political Thought of the Algerian Revolution285 Emma Stone Mackinnon

Bibliography308 Index341

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Contributors

George Garnett is Professor of Medieval History at the University of Oxford, and Fellow and Tutor in History at St Hugh’s College. He has published several books on the Norman Conquest, most recently the first volume of a study of its significance in English History through to the eighteenth century. He also works on Continental political and legal thought in the middle ages and early modern period. Aaron Garrett is Professor of Philosophy at Boston University. His books include Meaning in Spinoza’s Method (Cambridge, 2003) and Scottish Philosophy in the Eighteenth Century, co-edited with James Harris (Oxford, 2015). He is presently writing a monograph on the rise of modern moral philosophy entitled The Making of Modern Moral Philosophy. Kinch Hoekstra  is Chancellor’s Professor of Political Science and Law at the University of California, Berkeley, and an affiliated Professor in Philosophy and Classics. He was previously a member of the Faculties of Philosophy and Classics at the University of Oxford. He is the author of studies on ancient, Renaissance and early modern political thought, and co-editor of The Oxford Handbook of Hobbes (2016). He is currently co-editing Hobbes’ translation of Thucydides for the Clarendon Edition of the Works of Thomas Hobbes. Caroline Humfress is Professor of Medieval History and Director of the Institute of Legal and Constitutional Research at the University of St Andrews. She has published widely on late antique history, particularly in relation to law, legal orderings and religious beliefs and practices. She is especially interested in dialogue between historians, legal anthropologists, sociologists and modern legal theorists. Recent publications include ‘Beyond the (Byzantine) State: Towards a User Theory of Jurisdiction’ in Nico Krisch, ed., Entangled Legalities Beyond the State (Cambridge, 2021). Charlotte Johann is Junior Research Fellow at Churchill College, Cambridge. She works at the intersection of legal, political and intellectual history, exploring how conflicting visions of legal order impacted on the theory and practice of politics vii Published online by Cambridge University Press

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in the long nineteenth century. In addition to published articles, she is preparing a monograph on the historical jurisprudence of Friedrich Carl von Savigny and its role in shaping legal politics in nineteenth-century Germany. Emma Stone Mackinnon is University Assistant Professor in the History of Modern Political Thought at the University of Cambridge and a Fellow of Emmanuel College. She has published on twentieth-century political thought, political theory, and the history of human rights and humanitarianism. Chris Meckstroth is Associate Professor of the History of Political Thought at the University of Cambridge. He taught previously at Harvard and the University of Chicago. He is the author of The Struggle for Democracy: Paradoxes of Progress and the Politics of Change (Oxford, 2015). His work treats the history and theory of popular government and the challenges it raised for political thought in the nineteenth century. Sarah Mortimer is Associate Professor of Early Modern History at the University of Oxford, and Student and Tutor in History at Christ Church, Oxford. She is interested in the intersections of ethics, politics and religion across early modern European thought, publishing extensively on these themes: most recently, her book, Reformation, Resistance and Reason of State 1517–1625 (Oxford, 2021). John Robertson  is Professor Emeritus of the History of Political Thought at the University of Cambridge, and an Emeritus Fellow of Clare College; he is also Honorary Professor of the History of Political Thought at St Andrews University. He has published on a range of topics in intellectual history in the seventeenth and eighteenth centuries, in particular Enlightenment, both the concept and its manifestations in Scotland and in Naples. He is currently writing a study of sacred history and its contribution to thinking about society and state between 1650 and 1800. Magnus Ryan is Associate Professor in History at the University of Cambridge, and a Fellow of Peterhouse, Cambridge. His interests extend across Roman, Feudal and Canon Law and their relation to political thinking from late antiquity to the seventeenth century, leading to a series of articles on these themes. Most recently he has prepared (with George Garnett) a new translation and edition of works of Bartolus of Sassoferrato, forthcoming with Cambridge University Press. Silvia Sebastiani is Professor of Early Modern History at the École des Hautes Études en Sciences Sociales in Paris. A specialist of the Scottish Enlightenment, she works on the questions of race, gender, animality and history writing. She is the author of The Scottish Enlightenment. Race, Gender, and the Limits of Progress (Basingstoke and New York, 2013 – Italian edition, Bologna, 2008) and the co-author, with JeanFrédéric Schaub, of Race et histoire dans les sociétés occidentales (15e–18e siècle) (Paris, 2021). She is completing a book on the boundaries of humanity in the Enlightenment, focusing on how the great apes contributed to the shaping of human and social sciences.

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Quentin Skinner was Regius Professor of History at the University of Cambridge from 1996 to 2008, and since then has been Barber Beaumont Professor of the Humanities at Queen Mary University of London. He is the author of numerous books on political theory and modern intellectual history. Waseem Yaqoob  is Lecturer in the History of Political Thought at Queen Mary University of London. His interests span thinking about politics, economics and international order in the twentieth century. His book, History and Judgement: the Political Thought of Hannah Arendt, is under contract with Princeton University Press.

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Acknowledgements

As editor, I am grateful first of all to my contributors, with whom it has been a pleasure to collaborate. Not only have they been willing to bring their expertise to the specific subject of the volume, they have been no less willing to engage with my conception of what it might achieve, and to respond to my editorial suggestions for the development of their chapters. For their part, Caroline Humfress, Sarah Mortimer, Silvia Sebastiani and Quentin Skinner have at various points also given me good editorial counsel. All the contributors have been by turns resilient and patient, some in the face of serious adversity, the Covid-induced circumstances of the past three years having been disruptive in ways that individuals and institutions could not have predicted. For these qualities, too, I am thankful. Protracted as they have been, the discussions between us have been exemplary of collegial scholarship. But the volume would not exist without the encouragement, assistance and counsel of its Press editor, Elizabeth Friend-Smith, a consistent friend to and supporter of the history of political thought in Cambridge and beyond. We are also greatly indebted to the two readers for the Press, one who remains anonymous, the other, Sophie Smith, who has volunteered her identity. Both took the trouble to see the point of the volume, the greatest of encouragements to the editor as well as the basis for their many constructive suggestions. Further thanks are owed to Elliot Beck and Chris Hudson at the Press, to Melanie James for helpful copyediting, and to Thirumangai Thamizhmani for her timely management of the production process. Behind the volume lay a conference, Political Thought, Time, and History, held at Clare College, Cambridge on 10/11 May 2018. All but one of the contributors here spoke at the conference, where they were joined by Sir Christopher Clark, David D’Avray and Shruti Kapila. I am grateful to all three for their papers, powerful and apposite, and to Shruti Kapila in particular for her willingness to contribute to the volume, until peculiarly adverse circumstances made that impossible. While this volume would have been richer for a contribution on ‘Time in Indian political thought’, the subject might very well receive a volume to itself. I am likewise grateful to Annabel Brett, Megan Donaldson and Sylvana Tomaselli for closing the conference with a roundtable that not only engaged with the papers, but x Published online by Cambridge University Press

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looked beyond them to directions in which the conference theme might be taken in future. As chairs and in other ways, Sophie Lunn-Rockliffe, Annabel Brett, Richard Serjeantson, Tom Pye, Duncan Kelly, Kenzie Bok, Charlotte Johann, Eloise Davies and Hester van Hensbergen provided the conference with leadership and co-ordination throughout. Around 100 conference delegates provided the best of audiences, repeatedly asking questions relevant and constructive; I am particularly grateful to those who travelled a distance to be there, among them Elsbeth Heaman, Paschalis Kitromilides, Li Hongtu, and Shannon Stimson. Conference organisation was made much easier and more enjoyable by many staff in both Clare College and the Cambridge History Faculty. Finally, and not least, funding which made the conference possible was provided by the Cambridge Centre for Political Thought and the Faculty of History’s Trevelyan Fund. I am very grateful to both, and especially to David Runciman, benefactor as well as first Director of the Centre. Behind that conference lay another, History, Politics, Law, held at Clare College in 2016, organised by Annabel Brett, Megan Donaldson and Martti Koskenniemi, which provided a model and inspiration.1 It is a pleasure to record my gratitude to Annabel Brett for discussion of the two conferences, which gave me a sharper sense of the questions this volume should seek to address. Finally, I take this opportunity to thank John G. A. Pocock, great historian of political thought, who has thought about the themes of conference and volume longer and harder than any of us, for the stimulus of his writings, his correspondence and his conversation. Precisely because of the extent and depth of my debts, however, it is all the more essential to state that responsibility for shortcomings in what I myself have contributed to the volume, and for all editorial decisions, is mine alone. 1

As also the volume which ensued: Annabel Brett, Megan Donaldson and Martti Koskenniemi, eds., History, Politics, Law. Thinking through the International (Cambridge, 2021).

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Note on References and the Bibliography

Footnote references for each chapter provide full details of author, title, place and date of publication at first mention, thereafter author surname and short title only. Unless otherwise indicated, the final numbers are page references (without p. or pp); where there may be ambiguity, p. or pp. are inserted. All references are then collected in the unified Bibliography, which also provides the name of the publisher, where identified. Within the Bibliography are listed many of the works – books, collaborative volumes and articles – which have inspired or made important contributions to the current discussion of the roles of history and the significance of temporality in the study of politics. But the Bibliography is not comprehensive in its coverage of this literature, an ambition which would have required a separate research exercise – and would almost immediately have become out of date.

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Introduction: Time, History, and Political Thought John Robertson

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Among statements of the obvious, few are likely to seem more obvious than that politics takes place in time and is subject to history. At its most banal – Harold Wilson’s ‘a week is a long time in politics’1 – it has become a cliché. But it is also the premise of some of the most classic texts in the canon of Western political thought. Preeminent examples are Machiavelli’s The Prince and Discourses, where he argued that the key to success in politics, whether for individual rulers or for republics, lay in adapting to and taking advantage of time and circumstances. Alternatively, others have argued that politics will only be understood when recognised as subject to long-term economic and social forces: in this way, Hegel and Marx argued, politics served history’s purposes. Yet time and again – just as obviously – political thought has sought to escape the confines of time and history, and to present its findings as timeless, of universal application. If anything texts in this vein are even more classic, stretching as they do from Plato’s Republic in antiquity to John Rawls’ A Theory of Justice in the late twentieth century, by way of More’s Utopia, Hobbes’ Leviathan and the 1948 Universal Declaration of Human Rights. It is not hard to see why a universal, timeless vision of politics should appeal: what humans have in common should trump their differences, and all should enjoy security, justice and equal rights. But again, the reverse is not hard to accept either. For notwithstanding those imputed commonalities, the historical record has repeatedly proved recalcitrant. Peoples, whether organised in states or connected by looser forms of association, have stubbornly asserted their political differences, appealing to the past or simply to current circumstances to justify their particularity. In the face of this binary, the standard scholarly response is to be more discriminating – to For critical comments on drafts of this introduction, as well as many suggestions and references, I am most grateful to Annabel Brett, Blake Ewing, Charlotte Johann, Sarah Mortimer, Silvia Sebastiani and both the anonymous reader and Sophie Smith, as readers for Cambridge University Press. 1

Harold Wilson (1916–1995), Labour Party prime minister of the United Kingdom 1964–1970, 1974–1976; the remark is thought to have been first made in 1964.

1 https://doi.org/10.1017/9781009289399.001 Published online by Cambridge University Press

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draw more distinctions in order to show that a simple opposition between the temporal and historical and the timeless and universal is too simple. A first, crucial step is to recognise that time and history are separable concepts. Time is a concept no political theory can be without altogether. It is essential even to Hobbes’ ‘natural condition of mankind’, where the crucial incentive to war between humans is fear of what others will do. Moreover while ‘time’ can be measured as uniform – clock time – it can be conceptualised in very different ways according to perspective of the thinker or the object of enquiry, yielding distinct ‘temporalities’, or time regimes. In one view of politics, a week is a long time; in another, not at all. The temporality of politics conceived as a form of social organisation, for example, is unlikely to correspond with that of revolutions; and different systems of law are likely to have distinct temporalities. For an argument to be historical, by contrast, it must appeal to some record of human experience, a documentary or material residue from which historians can reconstruct what they suppose happened ‘in fact’. A historical political argument is one which refers, explicitly or by allusion, to such ‘facts’, or to the narratives by which historians have connected them. The distinction was clearly drawn by Rousseau, in the prologue to the Discourse on the Origin of Inequality among Men (1755), in which he began by ‘setting aside all the facts’, in favour of ‘hypothetical and conditional reasonings, better suited to elucidate the Nature of things’. The account he proceeded to give of original, natural human equality was unavoidably temporal, but made no appeal even to what Rousseau took to be the oldest recorded history, that of the Bible.2 A further complication is that the histories of interest to political thinkers have been of more than one kind. What is assumed to be the most relevant and most cited form of history in European political thought is the classical narrative, devoted to war, diplomacy and power struggles within communities, and exemplified by Herodotus and Thucydides, Livy and Tacitus, and later by Guicciardini and Gibbon. But political thought has also emerged from and engaged with many other kinds of history, including sacred, legal, social and natural history. The different kinds of history have in turn been informed by contrasting assumptions about how events or more structural developments unfold, whether cyclically or in a linear, progressive or even purposive direction, and by the ascription of different temporal rhythms or durations (short, medium or long) to the layers of human activity. Time and its temporalities, history and the narratives by which it is told, thus form a triad with political thought, the weightings of whose components are constantly shifting. Political thinkers may often have sought refuge from the constraints of time and history in the universal; but none has dispensed altogether with temporality, 2

Jean-Jacques Rousseau, Discours sur l’origine et les fondemens de l’inégalité parmi les hommes, in Œuvres complètes III Du contrat social, Écrits politiques, ed. B. Gagnebin and M. Raymond, Bibliothèque de la Pléiade (Paris, 1964), 132–3. Translation by Victor Gourevitch, The Discourses and other early political writings (Cambridge, 1997), 132. Although as Silvia Sebastiani points out in Chapter 9 in this volume, Rousseau proceeded to let ‘the facts’ back in through his notes.

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and even the most determined to exclude history have known that it will still be camped at theory’s gates. Among political scientists, time is now taken ever more seriously as a dimension of politics.3 For their part, historians of political thought have certainly not neglected either time or history in reconstructing their subject: the quantity of references to work which engages with them, both in this introduction and in the substantive chapters to follow, testifies the contrary. Yet there is a case for suggesting that these dimensions of political thought might profitably be paid more attention. One barrier to doing so may derive from what is otherwise a strength of the history of political thought: its proximity to political theory and political philosophy as they are currently practised. As Annabel Brett puts it, it is an inherent feature of the history of political thought that its very concern with the ‘political’ ‘pulls’ it into political thought itself, and hence into its present concerns.4 The pull is liable to be felt most naturally and urgently by historians of recent political thought. The closer they are to the present, the easier it becomes for them to contribute to discussion of the issues whose genesis they have been studying: a theoretical pay-off from historical enquiry is visibly within reach. But the same pull may affect the history of political thought of any period, shaping its narratives to yield implications of relevance to the present. There is nothing inherently wrong in this tendency: the scope to make a theoretical or philosophical contribution is what distinguishes the history of political thought of any period from other forms of historical enquiry. Nevertheless, a problem arises if the present concerns of political theory or philosophy over-determine understanding of the roles temporality and history have played in past political thinking. The problem is not that the theorist or philosopher may have a natural preference for the universal to the neglect of the historical. If anything, the greater danger is the opposite: a reductive temptation to use history as a ‘reality check’, exposing the illusions within the languages and the concepts deployed by those in power to legitimate their rule. In this guise, history is treated as external to theory and a test of its usage. Cast as ‘political realism’, this is a powerful instrument of c­ ritique. It draws inspiration from classic historical treatments of politics, not least the ‘steely realism’ of Thucydides. But its sharpest edge is turned to the present, where it has been applied with telling effect to undercut the liberal universalism of Rawls’ theory of justice. Within a decade of its publication, it is argued, a theory of justice designed 3

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As a sample: Paul Pierson, Politics in Time. History, Institutions and Social Analysis (Princeton and Oxford, 2004); Elizabeth F. Cohen, The Political Value of Time. Citizenship, Duration, and Democratic Justice (Cambridge, 2018); Klaus H. Goetz, ed., The Oxford Handbook of Time and Politics (Oxford, online publication 2021). DOI 10 1093/oxfordhb/9780190862084 013 35 Annabel Brett, ‘Between history, politics and law: history of political thought and history of international law’, in Annabel Brett, Megan Donaldson and Martti Koskenniemi, eds., History, Politics, Law. Thinking through the International (Cambridge, 2021), 19–48, at 21. I am indebted to the author for the opportunity to read this paper before its publication: its conception of what is distinctive to the history of political thought has shaped the argument of this introduction.

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to be proof against historical change and even to shield its subjects from the future had been rendered anachronistic by the reality of economic crisis.5 The problem here is that a politics which appeals to history as its external arbiter is also its narrator, telling a story which it anticipates its readers will accept. The critical advantages of such a ‘realist’ historical perspective are less apparent in the study of earlier periods, where the reconstruction of ‘reality’ is less intuitive, and the thinkers’ own conceptions of time and history may seem remote from ours. In that longer perspective, it becomes clearer that to oppose history to theory in the name of a reality check is to miss how political theories have themselves constructed time and history, and how the histories so constructed (and their accompanying temporalities) have enabled different visions of political life. While no historian of political thought can (or should) deny the pull of the present, the resort to history in the name of realism is liable to curtail rather than facilitate enquiry into how relations between politics, time, and history have been conceived. Even as some tendencies within political theory may be narrowing the space for time and history, however, the study of history itself has been undergoing what has been characterised as a ‘temporal turn’. Predicated on the emergence of a new conception of ‘History’, the temporal turn has potentially far-reaching implications for the understanding of ‘modern’ politics. The inspiration for this ‘turn’ has been the thinking of the German historian and philosopher of history Reinhart Koselleck, as developed in a succession of essays between the 1960s and the 1990s.6 In outline, Koselleck’s thesis was as follows. Between 1750 and 1850, a period Koselleck initially and influentially labelled the Sattelzeit, literally ‘saddle time’, there was a transformation in what Europeans understood by ‘history’. Before 1750, time was taken to be stable, so that history followed a cyclical pattern. What had happened in war and politics was recorded in histories (Historie), and precisely because time was recursive, these histories also served as exemplars of military and political conduct, historia magistra vitae. By 1850, however, ‘History’ (Geschichte) was understood to possess a conceptual identity separate from the works in which it was written, and to pursue a linear, progressive course of development, in which time was accelerating. 5

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As in Raymond Geuss, History and Illusion in Politics (Cambridge, 2001); and in more compelling detail, Katrina Forrester, In the Shadow of Justice. Postwar Liberalism and the Remaking of Political Philosophy (Princeton and Oxford, 2019); see esp. 172–203, on the contortions required for Rawls to shield his subjects from a concern with the future. For comment on varieties of realism: Bonnie Honig and Marc Stears, ‘The new realism: from modus vivendi to justice’, in J. Floyd and M. Stears, eds., Political Philosophy versus History? (Cambridge, 2011), 177–205; and on ‘exposure’ as its default trope: Brett, ‘Between history, politics and law’, 34. The initial set of essays was published in German in 1979 and translated into English by Keith Tribe as Futures Past. On the Semantics of Historical Time (Cambridge, MA and London, 1985). There have been two further translated collections which do not correspond directly to German originals: The Practice of Conceptual History: Timing History, Spacing Concepts, by Todd S. Presner et al. (Stanford, 2002) and Sediments of Time. On Possible Histories, by Sean Franzel and Stefan-Ludwig Hoffmann (Stanford, 2018). References to specific essays later in this volume.

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At the centre of this transformation lay the French Revolution, which had engendered a new idea of political possibility, revolution as the overthrow of existing social relations, and a new ‘horizon of expectation’, in which the prospect of radical change was the political norm. Koselleck compared the new sense of revolutionary expectation to that of Christian eschatology, anticipating the end of the world; reinvigorated by the Reformation, eschatology had been the main threat to the stability of time in the pre-modern world. But after the French Revolution the anticipation was of transformation in this world, gradually extending across the globe. To the new conception of ‘History’ it had been easy to attach normative purpose: history could confidently be equated with progress towards a chosen goal, whether freedom, nation-statehood, socialism or communism. Such, Koselleck argued, was the history and temporality of the Neuzeit, a term readily translated into English as ‘modernity’. Since the early 2000s, Koselleck’s thesis has stimulated an intensifying debate among historians, diffusing the idea of a ‘temporal turn’ in the discipline. An important early intervention was made by the French historiographer François Hartog. Detecting disillusion with modernity, Hartog diagnosed the cause as a pervasive ‘presentism’ which views the past as a subject for commemoration rather than critical understanding and a basis for political action. In response, he proposed that historians think in terms of ‘regimes of historicity’, which would allow for different historical paths to modernity.7 More recently, Hartog has returned to the problem of presentism, connecting it to a loss of expectation in a future threatened by climate change. Modifying his earlier response, Hartog now suggests a return to thinking of time simply as Chronos, abandoning the temporality of Kairos, or expectation, which Christianity took over from the Greeks and used to characterise the period of waiting for the final Krisis of Christ’s return. Modernity’s ‘horizon of expectation’, Hartog would seem to be arguing, should be sacrificed to the crisis of the Anthropocene, leaving lineal time, accounted for by chronology, as the least threatening temporality in which to comprehend climate change.8 Hartog’s theses have in turn stimulated debate in their own right, notably in the collection edited by Marek Tamm and Laurent Olivier, Rethinking Historical Time (2019).9 Others have sought to apply insights deriving from the temporal turn to the politics of the past. Notable among these has been Christopher Clark, whose Time and Power (2019) examines the contrasting attitudes to historical temporality adopted by

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François Hartog, Régimes d’historicité. Présentisme et expériences du temps (Paris, 2003), translated by Saskia Brown as Regimes of Historicity. Presentism and Experiences of Time (New York, 2015). For a similar lament over ‘presentism’, Hans Ulrich Gumbrecht, Our Broad Present: Time and Contemporary Culture (New York, 2014). François Hartog, ‘Chronos, Kairos, Krisis: the genesis of western time’, History and Theory, 60:3 (2021), 425–39, with a series of responses, 440–68. Marek Tamm and Laurent Olivier, eds., Rethinking Historical Time, New Approaches to Presentism (London and New York, 2019). For an argument convergent with Hartog’s rehabilitation of chronology, Helge Jordheim, ‘Return to chronology’, at 43–56.

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four German regimes since the seventeenth century, those of Frederick William the Great Elector, Frederick II, Bismarck, and the Third Reich. Taking cues from both Koselleck and Hartog, Clark exchanged the terms of the latter’s concept to focus on the ‘historicity of regimes’, to yield a study of ‘chronopolitics’, or how understandings of time and change shape political decision-making.10 A similar interest motivates the collection with the reversed title Power and Time (2020), edited by Dan Edelstein, Stefanos Geroulanos and Natasha Wheatley, although they prefer the term ‘chronocenosis’ to capture the potential for conflict between different political and legal temporalities.11 The appeal of the ‘temporal turn’ is clear, but as the proliferation of ‘chrono’-concepts perhaps implies, its outcomes are still open. As Edelstein and others suggest, there is no reason why the temporal turn should not also stimulate fresh thinking about time and history in the history of political thought. To do so, however, requires returning to the theses of Koselleck on which the turn was founded, since these provided not only a re-conception of ‘History’ but a new approach to the history of modern political thought. For this purpose, the next section (2) of this introduction will look more closely at Koselleck’s account of the politics of ‘modern’ time, examining both the intellectual history through which it was demonstrated, and the meta-historical assumptions required to sustain it. The potential of Koselleck’s history, it will be argued, is evident in his account of the new temporality of revolution; but the thesis as a whole remains hostage to an over-determined concept of ‘modernity’. Instead of developing the Koselleckian version of the temporal turn, therefore, I argue in the following section (3) that historians of political thought would do better to harness the methodological and historiographical resources which already exist within their discipline. In particular, I shall return to the suggestion that political thought is best studied through its languages rather than its concepts. As John Pocock has sought to demonstrate, thinking in terms of languages is particularly well adapted to grasping the different ways in which time and history have been put to work in political thought. While a single volume cannot cover every possible way of doing so, the subsequent section (4) will identify as many as six forms of temporal–historical political thinking which are the subject of contributions later in this collection. Each of these will be outlined, and the specific contributions to this volume introduced by their relation to them. As I emphasise in conclusion (5), the resulting picture of the ways in which time, history, and politics have been interrelated is necessarily selective; others might be added. Nevertheless, what is covered in this volume is already much richer than what is suggested by a focus on the

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Christopher Clark, Time and Power. Visions of History in German Politics from the Thirty Years’ War to the Third Reich (Princeton and Oxford, 2019). The Introduction provides a densely referenced account of the ‘temporal turn’. For ‘chronopolitics’, 14 and note 36. Dan Edelstein, Stefanos Geroulanos and Natasha Wheatley, eds., Power and Time. Temporalities in Conflict and the Making of History (Chicago and London, 2020).

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advent of the ‘modern’ alone, while demonstrating that history can serve many more purposes for political thinkers than a simple reality check. Rather, the contributions to this volume demonstrate how rich and varied have been the possibilities opened for political thought by different conceptions of time and history. 2

The essentials of Koselleck’s account of the accelerating time of ‘modernity’ have already been sketched above. But there was more to that account than the standard summary reveals; to test its significance for the history of political thought, both the story he was telling and its particular conceptual character need amplification. The story recounted in the essays collected in Futures Past and successor volumes is clearly connected to the one he had told in his first book, originally published in 1959, and eventually translated as Critique and Crisis. Enlightenment and the Pathogenesis of Modern Society.12 There Koselleck had characterised Enlightenment philosophy as an expression of frustration with the absolutist state, and with the Hobbesian principles by which absolutism was justified. Designed to enable the sovereign to enforce toleration and prevent the renewal of religious war, the Hobbesian concept of the state had stood in the way of the philosophes’ aspirations for radical social and political change. In response, the philosophes and their German counterparts, the Illuminati, had put morals before politics, and articulated their goals in the abstract, utopian terms of natural law. On this basis, they envisaged an undermining of the absolutist state, a prognosis of revolution which they concealed within a philosophy of history as progress. Combining these intellectual commitments with an approach to politics modelled on the secretive rituals of Freemasonry, the ‘prophètes philosophes’ of the Enlightenment had successfully precipitated the overthrow of the ancien régime. In that first book, Koselleck was telling a certain story, one with obvious echoes of Tocqueville’s L’ancien régime et la révolution (1856), and even of the CounterRevolutionary thesis of a ‘philosophe conspiracy’ (in its French and German versions). Intellectual responsibility for the French Revolution was attributed to a utopian willingness to slight the role of the state in maintaining order, in favour of a transformation of society in the name of moral absolutes. It was this story which informed Koselleck’s essay ten years later on ‘Historical criteria of the modern concept of revolution’, which contended that after 1789 the idea of ‘revolution’ had become a ‘collective singular’, uniting in itself the course of all the individual revolutions that followed the French. Built into this modern concept of revolution were both an acceleration of political time and, through declarations of rights, the 12

Reinhart Koselleck, Critique and Crisis. Enlightenment and the Pathogenesis of Modern Society (Oxford, New York and Hamburg, 1988), trans. of Kritik und Krise. Eine Studie zur Pathogenese der bürgerlichen Welt (Freiburg and Munich, 1959).

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expectation that political and social revolution would coincide. Further features of the concept included the implication that it would be global in ambition and ‘permanent’ until that ambition had been realised.13 Koselleck connected the new concept with the transformation by which History itself had become singular, formalising the junction he had identified in the minds of the philosophes between a prognosis of revolution and a philosophy of history. Triggering a new sense of accelerating time, the experience of revolution had reinforced the idea that History could be progressive and purposive in its own right.14 Koselleck was reluctant to identify this concept of ‘History’ with ‘Historicism’, perhaps to avoid associating it with the historiographical story told by Meinecke, among others;15 but at this stage he, too, was clearly advancing claims that belong within the history of political thought and historiography. As such, evidence to substantiate Koselleck’s claims could be sought in the writings of individual thinkers: examples were his discussions of the political thinking of Lorenz von Stein (1815–1890), and of the historical philosophy of J. C. Chladenius (1710–1759) and his German successors down to Hegel.16 But the focus of his historical study was not authors, texts, or even languages; it was concepts. The history of concepts, Begriffsgeschichte, realised in the multi-volume, collaborative lexicon edited with Otto Brunner and Werner Conze, entitled the Geschichtliche Grundbegriffe (1972–1997), was given the task of demonstrating the wholesale intellectual transformation of political and historical thinking which Koselleck was convinced had taken place between 1750 and 1850. Its ‘central problematic’, Koselleck wrote in his Introduction to Volume I, ‘is the dissolution of the old society of orders and estates, and the development of the modern world. … Its research is meant to reveal what is distinctively modern about the way we conceptualise political and social life.’17 As successive volumes of the lexicon appeared, Koselleck clarified the possibilities of the methodology: in particular there was no supposition that concepts were fixed in meaning. Conceptual history was as much concerned with concepts’ diachronic development as with their synchronic articulation. Concepts might have their own, or indeed more than one, temporality. In the layering of temporalities lay the possibility, much emphasised by Koselleck, of the ‘simultaneity of the nonsimultaneous’, the opportunity for conceptual usages from different times, or which implied different temporalities of implementation, to be combined in a specific 13 14 15 16

17

Koselleck, ‘Historical criteria of the modern concept of revolution’ (original publication in German in 1969), Futures Past, 39–54. Koselleck, ‘Modernity and the planes of historicity’ (1968), Futures Past, 3–20. See Chapter 12 later in this volume, Waseem Yaqoob, ‘After Historicism’, 274–77, for an assessment of Koselleck’s relation to this tradition. ‘Historical prognosis in Lorenz von Stein’s Essay on the Prussian Constitution’ (1965), ‘Perspective and temporality: a contribution to the historiographical exposure of the historical world’ (1977), Futures Past, 57–69, 130–55. Reinhart Koselleck, ‘Introduction and Prefaces to the Geschichtliche Grundbegriffe’, translated by Michaela Richter, Contributions to the History of Concepts, 6:1 (2011), 1–37, quotation at 8.

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political present.18 For all the methodological sophistication of conceptual history, however, its deployment was predicated on an explicit periodisation: its subject was the history of the political thought of modern times.19 For Koselleck this was by no means only a matter of intellectual history. Keen to align Begriffsgeschichte with the new social history of the 1960s,20 Koselleck argued that the modern understanding of time had derived from a broader social experience. Underpinning this claim was a concept of ‘experience’ as informed by ‘reality’, which exists independently of and prior to language, and which language is always struggling to master.21 Thus he argued that the political experience of the French Revolution had been reinforced by the industrial revolution, specifically the discovery and diffusion of steam power. It was ‘technological–industrial progress’ which had ‘denaturalized’ time, transforming it into a generalised experience of acceleration. The time of the Neuzeit, of ‘modernity’, therefore, was not simply an intellectual construction; it was a social mentality, which made it possible for all to share in the political expectations associated with revolution, on a global scale.22 There was still another, explicitly ‘metahistorical’, layer to Koselleck’s argument, underpinning both experience and language. This he characterised as ‘historical anthropology’. It covered the three ‘anthropological pregivens’ of human experience: the lifecycle of birth and death, the distinction between ‘insiders’ and ‘outsiders’, and the hierarchy of above and below, exemplified by the master–slave relationship. These were the conditions of all possible human histories, circumscribing the scope of linguistic representation.23 Likewise metahistorical were two concepts of Koselleck’s own coining, which were not attributed to the Sattelzeit, but which were crucial to his explanation of what happened during that period: the ‘space of experience’ and the ‘horizon of expectation’. The ‘space of experience’ comprises the totality of past times; when time is regular (before it began to accelerate), the space 18

19

20 21

22 23

Koselleck, ‘Introduction to the GG’, 16–22; also ‘Sediments of time’ (Zeitschichten) (1994), Sediments of Time, 3–9. See also the comments by Keith Tribe, ‘Intellectual history as Begriffsgeschichte’, in Richard Whatmore and Brian Young, eds., A Companion to Intellectual History (Chichester, 2016), 61–71, on the extent to which realisation of the aims of the GG depended on the availability of contributors and the time they could devote to research. The extent to which the periodisation of the modern is at odds with the concept of multiple temporalities is debated by commentators: Helge Jordheim, ‘Against periodization: Koselleck’s theory of multiple temporalities’, History and Theory, 51:2 (2012), 151–71; Juhan Hellerma, ‘Koselleck on modernity, Historik, and layers of time’, History and Theory, 59:2 (2020), 188–209; also Sabina Loriga, ‘Préface à la nouvelle edition’, Reinhart Koselleck, Le futur passé (Paris, 2015), 7–23. Koselleck, ‘Begriffsgeschichte and social history’ (1972), Futures Past, 73–91. Koselleck, ‘Linguistic change and the history of events’ (1989), Sediments of Time, 137–57. Consistent with this, Koselleck explicitly rejected the methodologies of ‘meaning and experience’, ‘text and ‘context’ which give priority to language, 137. Koselleck, ‘Does history accelerate?’ (first delivered, 1976; first published, 1985), Sediments of Time, 79–99, esp. 82–93. Koselleck, ‘Linguistic change’, Sediments of Time, 138–41, 151.

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of experience ‘leaps over time’. Once time was experienced as accelerating, however, that space was superseded: there was a new, constantly expanding ‘horizon of expectation’, which refused to be confined to the space of experience. This was the time of modernity, the temporality which made it possible to conceptualise a political expectation of permanent, global revolution.24 Koselleck’s thesis concerning the time and politics of the Neuzeit, therefore, was a multi-layered construction: what began as an intellectual–historical narrative was re-told through histories of selected concepts, underpinned by a claim about a larger economic and social reality, and framed with the aid of metahistorical propositions derived from anthropological pre-givens. Much more than a history, it was a ‘Theory’, a philosophy of History.25 What the thesis did not have was any positive normative implication. On the contrary, Koselleck insisted in a late essay, the progressive purposes ascribed to ‘History’ in the nineteenth century had been exposed as meaningless, if not absurd, by the events of the twentieth. For Germany in particular, the outcome of ‘modern’ history had been the catastrophe of the two world wars, whose normative meaninglessness was epitomised by the battles of Verdun and Stalingrad, and its normative absurdity by the Holocaust.26 But Koselleck did not want to tie his argument exclusively to the German context. The legacy of the Neuzeit, of modernity in general, of its accelerating temporality and its politics of revolutionary expectation, was a positive absence of value. Consistent with this, Koselleck distanced himself sharply from intellectual historians who supposed that study of past thought involved engagement with moral choices.27 The starkness of this conclusion seems to have been ignored by the majority of historians interested in his thesis of the accelerating time of modernity. This may be explained by a desire to get away from late twentieth-century debates over the German catastrophe and the Holocaust. It may also reflect the desire of many historians to defend modernity from the postmodern critique, which seemed to threaten their hold on historical truth. Whatever the reason, historians have since 2000 been remarkably tenacious in their commitment to ‘modernity’. Among intellectual historians, those studying Enlightenment have made a point of defending their subject’s equivalence 24 25

26

27

Koselleck, ‘“Space of experience” and “horizon of expectation”: two historical categories’ (1976), Futures Past, 267–88. Again, the balance between history and philosophy is debated by commentators. For Frank R., Ankersmit, ‘Koselleck on “Histories” versus “History”; or, historical ontology versus historical epistemology’, History and Theory, 60:4 (2021), 36–58, it is only as ontology that Koselleck’s philosophy transcends its Eurocentric historical premises. Koselleck, ‘On the meaning and absurdity of history’ (1997), also ‘History, law and justice’ (1986), both in Sediments of Time, respectively 177–96, and 117–36, at 123–4. I am grateful to Clara Maier for explaining the context and significance of these essays to me. Hence, presumably, Koselleck’s brusque description of Quentin Skinner as ‘a conventional historian concerned with a load of normative concepts’, quoted by Roberto Breña, ‘Tensions and challenges of intellectual history in contemporary Latin America’, Contributions to the History of Concepts, 16:1 (2021), 89–115, at 98–9.

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to the cause of modernity.28 As we shall see, ‘global intellectual history’ has also given the concept a new lease of life, as modernity is projected as both the condition of dialogue and the focus of dispute between the West and the intellectual cultures of Asia.29 The continuing appeal of Koselleck’s thesis may owe more than it should to historians’ loyalty to a concept of modernity rather more positive than his own. This point has not escaped critics. Among philosophers, one who engaged repeatedly and not unsympathetically with Koselleck’s theses was Paul Ricoeur. Ricoeur was nonetheless critical of the extent to which Koselleck had identified his concept of ‘History in the singular’ with modernity. ‘Modernity’, Ricoeur thought, had become a ‘conceptual epic’, culminating in the possessive ‘our modernity’, which was represented as a global phenomenon, and even as a tribunal. Rather than possessing a continuous existence, Ricoeur pointed out, modernity claims had taken different forms at different times, and could not be linked to a single conception of history or of temporality.30 For the medievalist and critical theorist Kathleen Davis, Koselleck’s account of the temporality of modernity was designed to rescue Carl Schmitt’s theory of secularisation at the expense of a middle ages supposedly trapped in theology.31 Among historians, Christopher Clark has sounded a note of caution, remarking on the way in which recent studies of temporality have ‘tended to be engineered from within by a more or less explicit theory of modernisation’, as if modernity itself was the driving force. Clark’s study of the ‘chronopolitics’ of successive Prussian and German regimes shows instead that modernisation took different forms under the different regimes, which had very different understandings of their relation to history and its temporalities.32 It is the extent to which Koselleck’s theses concerning temporality were tied to a strong modernity theory which should give pause to historians of political thought. The intuition that the political upheavals of the later eighteenth century were articulated in a new concept of revolution, one characterised by a sense that the time of politics could suddenly accelerate, was a historical insight of unusual originality, with far-reaching implications.33 But inserted into a pre-determined account of modernity, it became hostage to large-scale propositions about temporality and 28 29

30

31 32 33

John Robertson, ‘Enlightenment and modernity, historians and philosophers’, International Journal for History, Culture and Modernity, 8:3–4 (2020), 278–321. Despite the misgivings of Dipesh Chakrabarty, ‘The muddle of modernity’, misgivings shared by the other (but not all) participants in the roundtable ‘Historians and the question of “modernity”’, American Historical Review, 116:3 (2011), 663–75, within 631–751. Paul Ricoeur, Memory, History, Forgetting, translated by Kathleen Blamey and David Pellauer, (Chicago and London, 2004), 296–314. Ricoeur had previously engaged with Koselleck in Time and Narrative, 3 vols. (1984–1988). Kathleen Davis, Periodization and Sovereignty. How ideas of Feudalism and Secularization govern the Politics of Time (Philadelphia, 2008), 77–95. Clark, Time and Power, ‘Conclusion and epilogue’, 211–26, quotation from 213. For an example of whose development, see Mackinnon, ‘The Right to Rebel’, later in this volume, Chapter 13.

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historicity which narrowed rather than enlarged the scope for further enquiry. As I shall now argue, another approach to the history of political thought may offer a better way into the relation between time, history, and political thinking, yielding richer, more varied, accounts of their interaction. There is no need for the history of political thought to be pulled into the conceptual black hole of ‘modernity’. 3

It is the case that other historians of political thought have made their own claims on the ‘modern’. These claims have tended to be associated with the period before rather than after 1800. Once John Dunn had demonstrated the strength of Locke’s Christianity, thereby disqualifying him from being the first ‘modern’, secular and liberal political philosopher, the way was open for Hobbes to take up the role.34 That Hobbes was qualified to do so was suggested by Quentin Skinner in The Foundations of Modern Political Thought (1978), at the end of which he credited Hobbes with completing the foundations of the modern theory of the state.35 Thirty years later, and with a different methodological framing, Skinner extended the story to the present, arguing in ‘A genealogy of the modern state’ that of several competing possibilities, a version of the Hobbesian concept of the state was still the one to be preferred.36 But while Skinner was expressing a normative preference,37 he was not laying claim to modernity itself. He could hardly do so, since he was simultaneously recovering and advocating an avowedly ancient, ‘Roman’ concept of personal and political liberty.38 Closer to doing so, perhaps, was Richard Tuck’s alternative claim that Grotius inaugurated the ‘modern’ theory of natural law.39 The suggestion effectively equated modern with Protestant, in line with the Weberian association of Protestantism with aspects of modernity. But the implied segregation of the natural law of the Catholic Second Scholastic as, at best, pre-modern does not stand up to scrutiny: Grotius was the Scholastics’ closest interlocutor.40 34 35 36 37 38

39 40

John Dunn, The Political Thought of John Locke. An Historical Account of the Argument of the ‘Two Treatises of Government’ (Cambridge, 1969). Quentin Skinner, The Foundations of Modern Political Thought, 2 vols. (Cambridge, 1978); on Hobbes, II, 349–58: ‘Conclusion’. Qualifying reflections in Brett, ‘Between history, politics and law’, 43–4. Quentin Skinner, ‘A genealogy of the modern state’, Proceedings of the British Academy, 162 (2009), 325–70. Melissa Lane, ‘Doing our own thinking for ourselves: on Quentin Skinner’s genealogical turn’, Journal of the History of Ideas, 73:1 (2012), 71–82. Quentin Skinner, Liberty before Liberalism (Cambridge, 1998); and now, ‘On neo-Roman liberty: a response and reassessment’, in Hannah Dawson and Annelien de Dijn, eds., Rethinking Liberty before Liberalism (Cambridge, 2022), 233–66. Richard Tuck, ‘The “modern” theory of natural law’, in Anthony Pagden, ed., The Languages of Political Theory in early modern Europe (Cambridge, 1987), 99–119. Annabel S. Brett, Changes of State. Nature and the Limits of the City in early modern Natural Law (Princeton and Oxford, 2011); Sarah Mortimer, Reformation, Resistance, and Reason of State 1517–1625 (Oxford, 2021).

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In any case, as another historian of political thought, John Pocock, has pointed out, the ‘modern’ is a term with its own history. In the first instance, it was used of all history that was not ‘ancient’: on this understanding, modern history began in the late third century, and included almost the entire history of the Christian Church. Around 1500, there developed a sharper differentiation, related to the three inventions supposed to be unknown in antiquity, printing, gunpowder and the compass. In the late seventeenth century, the Querelle of the ‘Ancients and Moderns’ enlarged the field of possible differences to cover the arts and sciences, population, and forms of government; by the mid-eighteenth century, commerce had been added to the list.41 By 1800, therefore, the term ‘modern’ had a recognised application, reasons had been advanced to prefer the modern world to the ancient, and the adjective had begun to add some value to what it qualified. But it was not a thing, with an independent existence. It was a construction of the thinkers who adopted the term. If the history of political thought is to extend to the concept of ‘modernity’, it can only be on this basis. As we shall now see, it was on the same basis that Pocock set out to explore the roles that time and history have played in political thought. In a pair of articles published in 1962, Pocock set out an approach to the history of political thought which not only drew inspiration from the same ‘linguistic turn’ that informed the work of Skinner and Dunn, but also opened up the relation between political and historical thinking.42 As is well known, the focus of this approach is on the languages in which politics have been conceptualised, articulated, argued over and acted out. The approach is indebted to Wittgenstein’s philosophy of language in two respects particularly relevant to discussion of time and history in political thought: in its recognition of the plurality of language, and in its conviction that languages forming a more or less coherent field of discourse will set their own criteria of validation. Plurality allows for overlap between languages, but denies that there must be a common denominator across them. What counts as political is therefore not a pregiven: political thought extends across languages which capture multiple forms of human association from different angles, and does not always reduce to ‘the state’. It is for the historian to identify which languages they choose to study, and which are in play in any selection of texts; if the authored text remains the focus of enquiry, what texts and their authors are doing is established by setting them in the context of the languages at work within them, and the institutional, social and immediately political settings (courts, law-courts, churches, universities, bureaucracies, parliaments, forms of publication) in which the languages have developed. The relevant 41 42

John G. A. Pocock, ‘Perceptions of modernity in early modern historical thinking’, Intellectual History Review, 17:1 (2007), 55–63. John G. A. Pocock, ‘The history of political thought: a methodological enquiry’, and ‘The origins of study of the past: a comparative approach’, reprinted unrevised from articles originally published in 1962 in John G. A. Pocock, Political Thought and History. Essays on Theory and Method (Cambridge, 2009), 3–19, 145–86.

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context may be linguistically, temporally and spatially specific and singular; but given the plurality of language, it is unlikely to be so – it is certainly not, as critics of the ‘contextual method’ suppose, inherent in the approach that it should be. Rather, since interpretation is in the perspective of the historian, context is always open to reconstruction – and multiplication.43 But it is particularly the second attribute of these languages, that they determine their own criteria of validation, that opens the political to the historical. On this basis, there is no external, independent ‘reality’ which language struggles to master (as Koselleck supposed), and which can hold language to account, exposing its illusions (as ‘realism’ wants to suggest). What is out there is constructed through language. As Pocock would later put it, historians know that things happen without waiting to be invented, but those happenings can only be reconstructed if there is an archival record, and if historians bring their own questions to bear on that archive. So arguing, Pocock joins Ricoeur in holding that an archive of record is the foundation from which historians constitute the evidence, the ‘facts’, of which they ask questions informed by concepts, so that they can compose their findings into a narrative. What Pocock had already added, however, was the insight that the formation of archives depends on the existence of societies, forms of association, which constitute archives as repositories of the record of their own existence. Societies of all sorts (dynasties, legal systems and churches as well as formal political communities, including states) will do this particularly when facing existential challenges: they will then commission histories to be written from their archives as assertions of their existence and continuity. For almost any society, therefore, history may become more or less essential to their political self-understanding. At the same time, the form taken by the history will vary according to the nature of the society and its archive: if all histories are narratives (stories told) of a sort, they will not all have been classical narratives. As the form of the narrative varies, moreover, so too will the timescale in which it sets its subject, the temporality of what is narrated. Finally, no narrative will be incontestable. It is in the nature of narratives constructed from archives that they, too, will be plural, open to reconstruction and re-telling.44 43

44

In addition to Pocock, ‘The history of political thought’, see now also Brett, ‘Between history, ­politics and law’, esp. 23–31, for an account of this approach which works off Quentin Skinner’s article. ‘Meaning and understanding in the history of ideas’ (1969), emphasising in particular the openness of contextual interpretation. Pocock, ‘The origins of study of the past’, reinforced and developed in later essays, including ‘The politics of historiography’ (2005), in Political Thought and History, 257–71, 263 for the remark that things happen without waiting to be invented; and ‘Historiography as a form of political thought’, History of European Ideas, 37 (2011), 1–6. Compare with: Paul Ricoeur, ‘The narrative function’, in Paul Ricoeur, Hermeneutics and the Human Sciences. Essays on Language, Action and Interpretation, translated and edited by John B. Thompson, (Cambridge, 1981, repr. 2016), 236–58; and, at length, Memory, History, Forgetting, 133–280. On the common ground between Pocock and Ricoeur: Kenneth Sheppard, ‘Telling contested stories: J. G. A. Pocock and Paul Ricoeur’, History of European Ideas, 39:6 (2013), 879–98.

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It is not Pocock’s – or this volume’s – claim that all political thought must be or become historical. As Pocock acknowledged in an early essay on ancient Chinese philosophy, power may even be articulated without language. Regarding words as a source of disorder, Confucianism had valued ritual above language; but when words could not be avoided, late Confucianism had suggested that ritual be supported by a universal principle of justice.45 In Europe, which had accepted a religion of the Word, and where language was ordered by philosophy and rhetoric, a universal principle of justice was asserted in the form of natural law, first by the Stoics, then by the Scholastics with the aid of Aristotelianism. When hitherto unknown peoples were ‘discovered’ in the Indies and Americas around 1500, it was natural law whose principles were most readily extended to determine their standing in relation to Europeans, until a new historical and political perspective was constructed in which to place them. Subsequently the emphasis within this universalist way of thinking would shift from natural law and right to the rights of man (and woman) and finally, in the twentieth century, to universally declared human rights.46 Of course even universal principles will have a temporal dimension, and they may also invoke historical evidence or be combined with arguments from history. But the aspiration to universality has continued to check and offset the appeal of history as a framework for political thought. It is equally a misunderstanding to conflate political thought and historiography. As Pocock came increasingly to acknowledge while writing his study of the first three volumes of Gibbon’s Decline and Fall, historiography has an independent intellectual history. The process of constructing an archive, constituting and interpreting evidence, and writing appropriate narratives has a logic and follows rules of its own. Time and again Pocock shows Gibbon at work in this way, his narrative a re-working of his source narratives, from Tacitus to Ammianus Marcellinus.47 That narrative might at the same time open up the whole history of European political self-understanding, from the transformation of the Roman Empire into the ‘modern’ Europe of territorial monarchies and city–state republics, and from Europe’s conquest by the pastoral, ‘barbarian’ peoples of the Eurasian steppe to its own conquest 45

46

47

John G. A. Pocock, ‘Ritual, language, power: an essay on the apparent meanings of ancient Chinese philosophy’ (1964), reprinted in John G. A. Pocock, Politics, Language and Time. Essays on Political Thought and History (London, 1971), 42–79. Telling the story of natural and universal rights has formed one of the richest veins in recent scholarship in the history of political thought. In chronological order of coverage, Annabel S. Brett, Liberty, Right and Nature. Individual Rights in Later Scholastic Thought (Cambridge, 1997); Richard Tuck, Natural Rights Theories. Their Origin and Development (Cambridge, 1979); Dan Edelstein, On the Spirit of Rights (Chicago, 2019); Lynn Hunt, Inventing Human Rights. A History (New York, 2007); Vincenzo Ferrone, The Enlightenment and the Rights of Man (Liverpool and Oxford, 2019); Samuel Moyn, The Last Utopia. Human Rights in History (Cambridge, MA, 2010). John G. A. Pocock, Barbarism and Religion, 6 vols. (Cambridge, 1999–2015); see in particular VI Barbarism: Triumph in the West (2015) on Gibbon’s construction of the narratives of Volume III of the Decline and Fall.

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of the ‘savage’ peoples of other continents.48 But it was not Gibbon’s task to extract and pursue the political implications of his narratives; and the historian of political thought does so by bringing them out from under their narrative shell, and connecting them to other texts deploying related political languages.49 The history of political thought, therefore, finds itself constantly negotiating the lines between the historical and the universal, the political, the temporal, and the historical. It does so, however, because the languages in which humans have understood their forms of association and the power relations within and between them have themselves developed multiple ways of crossing the lines, and of bringing time and history to bear on political argument. As Pocock once attempted to point out, in dialogue with Melvin Richter and Koselleck, that combination of multiplicity and intersection is unlikely to be captured by the history of individual concepts.50 It requires an approach which begins from the languages themselves. Six such languages involving temporal and historical perspectives are considered in this volume. 4

The following section outlines these six ways of thinking historically and temporally about politics, and introduces the individual contributions to the volume in relation to each. The six include four – the legal, the sacred, narratives of political contingency and opportunity, and conjectural or stadial accounts of the development of society – that have established historiographies, to which Pocock has contributed. To these are added the revolutionary and the global. Revolutions generated narratives of radical social as well as political change that could not be contained within the older category of narratives of political contingency; their inclusion as a distinctive way of framing politics temporally and historically makes it possible to engage directly with Koselleck’s intuition of the significance of the French Revolution, without necessarily associating its outcomes with ‘modernity’. Finally, the global is considered as a framework for comparing, and perhaps connecting, the temporalities and historicities of Western and non-Western political thought.

48 49

50

On these themes, see especially volumes III The First Decline and Fall (2003), and IV Barbarians, Savages and Empires (2005). Brett, ‘Between history, politics and law’, 41, for the striking image of Pocock working as ‘a hermit crab inside a shell’. Unusually, Pocock’s achievement is to have been both a historian of historiography and a historian of political thought, a point understated in my ‘John Pocock’s histories of political thought’, Storia della storiografia/History of Historiography, 75:1 (2019), 11–46. John G. A. Pocock, ‘Concepts and discourses: a difference in culture? Comment on a paper by Melvin Richter’, and Reinhart Koselleck, ‘A response to comments on the Geschichtliche Grundbegriffe’, in Hartmut Lehmann and Melvin Richter, eds., The Meaning of Historical Terms and Concepts: New Studies in Begriffsgeschichte (Washington: German Historical Institute, 1996), 47–58, 59–70. The discussion itself took place in December 1992. Even then, Koselleck thought he had dealt with these issues ‘long ago’. Helpful observations by an outsider: James Schmidt, ‘How historical is Begriffsgeschichte?’, History of European Ideas, 25:1–2 (1999), 9–14.

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Law as a historical institution and regime of temporality provides a good starting point, since in recent years the relation between the history of law and the history of political thought has become the subject of intense, sometimes heated debate. Some international lawyers in particular have resisted a ‘historical turn’ within the field, which they believe threatens to confine law to the original contexts of its promulgation, inhibiting its application to current issues on which it may helpfully be brought to bear.51 Seeking to mediate, Natasha Wheatley draws on Koselleck’s admission that legal time is ideally ‘recurrent’, and thus distinct from the accelerating time of modern politics, to suggest that what lawyers seek is ‘temporal indifference’, or ‘transtemporality’. Historians, accordingly, should examine the devices by which lawyers assert such transtemporality.52 But it seems unlikely that law, any more than politics, can be indifferent to time, or discount all historical perspective. Better, as Annabel Brett, Megan Donaldson and Martti Koskenniemi argue, to envisage law, politics and history as a triad in which there is scope for different temporalities to shape how law and politics invoke history, as well as their impact on each other. The need to be alert to multiple temporalities is all the greater when historians of law and political thought extend their focus to forms of association other than sovereign statehood.53 If any system of law had a built-in claim to transtemporal universality, it would seem to have been Roman or Civil Law. For although Roman in its language and references, the Law codified at the Emperor Justinian’s command as the Corpus iuris civilis between 529 ce and 534 ce declared itself the emanation of an imperial authority that was inferior to and confined by no other. As Caroline Humfress argues in her opening contribution, however, that imperial authority was articulated within a distinctive temporality and historicity. These derived from the Trinitarian doctrine affirmed at the Council of Chalcedon in 451 and rehearsed in a series of debates over Christology held in the 530s, just as the corpus of law-books was being compiled. As a result, Roman Law in its most decisive formulation was framed by a theology which envisaged that it would last until human history joined divine eternity.54 The price of such a claim, however, was that Roman Law would survive the fall of the Empire in the West only on the historical presumption that the monarchies and city states which recognised its jurisdiction were still subject to or themselves exercised the imperium of the Roman Emperor. As Magnus Ryan argues in his 51 52

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Most strenuously, Anne Orford, International Law and the Politics of History (Cambridge, 2021). Natasha Wheatley, ‘Law and the time of angels. International Law’s method wars and the affective life of disciplines’, a contribution to the ‘Forum: historiography, ideology and law’, ed. Justin DesautelsStein and Samuel Moyn, History and Theory, 60:2 (2021), 311–30, referring at 325–6 to Reinhart Koselleck, ‘History, law and justice’, Sediments of Time, 117–36. See Charlotte Johann, ‘Law’s histories in post-Napoleonic Germany’, later in this volume, Chapter 11. Brett, Donaldson and Koskenniemi, History, Politics, Law: ‘Introduction’, 1–16, Brett, ‘Between ­history, politics and law’, 22, 36–46; Koskenniemi, ‘The past according to International Law. A practice of history and histories of a practice’, 49–68. Caroline Humfress, ‘Out of time? Eternity, Christology, and Justinianic Law’, in this volume, Chapter 1.

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intervention, that presumption was upheld by the twelfth-century Glossators and a succession of jurists down to Bartolus through an interpretation of the lex regia, the instrument by which the Roman people transferred power to the emperor. It was this stretching of the historical existence of the Roman Empire, not the universality of Roman Law, which was challenged by the French ‘Historical School’ of the sixteenth century, when Cujas and others sought to strip away the mediation of the glosses in order to ‘restore’ Roman Law to its philologically pure ‘original’. By putting distance between ancient Rome and the present, the humanists may have helped to disable the continuity assumed by the scholastic lawyers; but freeing up the universal potential of Roman Law was another story, which Ryan suggests began in the fifteenth century and culminated in the arguments of the Calvinist resistance theorists. The outcome was a re-interpretation the lex regia as a demonstration of a general principle that the people were the source of binding law, exemplified from nonRoman histories, in particular François Hotman’s account of the ancient French constitution.55 On this basis, Roman Law could become universal because it was no longer dependent on the supposedly continuous existence of the Roman Empire. As Hotman’s ancient constitutionalism implied, however, the universality of Roman Law positively facilitated its subsequent integration into a range of national legal histories. The process would be evident in the gradual transformation of the law of the Holy Roman Empire itself into Reichsrecht after 1648. Later, that process would be renewed and re-energised in Germany after the French Revolution. Reconstructing the early nineteenth-century debate between Friedrich Carl von Savigny and Eduard Gans over the Prussian response to Napoleonic codification, Charlotte Johann shows in Chapter 11 in this volume that different political temporalities were precisely what was at stake in the choice of historical perspectives.56 Another claim for law’s temporal indifference might be made on behalf of Common Law. English Common Law was at the heart of John Pocock’s first, classic study, The Ancient Constitution and the Feudal Law. A Study of English Historical Thought in the Seventeenth Century (1957). There Pocock argued that ‘the Common Law Mind’ had been the foundation of an understanding of England’s political arrangements as an ‘ancient constitution’. While the latter was obviously a historical claim, however, what Pocock characterised as the ‘Common Law Mind’ had been unhistorical: the authority of the Common Law had depended on the assumption that it was unchanging, with precedent as the basis of judgements of its courts and the guarantee of its continuity. The conviction that the Common Law embodied antiquity and continuity was enshrined in the concept of ‘time immemorial’, a technical term indicating the presumed existence of a law prior to the limit of legal memory, set at 1189. Crossing that limit, the Common Law became custom, law whose validity was a function of its longevity. The status of the Common Law 55 56

Magnus Ryan, ‘Historicity and Universality in Roman Law before 1600’, in this volume, Chapter 2. Johann, ‘Law’s Histories in Post-Napoleonic Germany’, in this volume, Chapter 11.

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as custom in turn underpinned the antiquity claim on behalf of the constitution, which was supposed always to have required that the Crown exercise its authority within the Common Law and in conjunction with parliament.57 Historians of the Common Law have long regarded Pocock’s emphasis on the unhistorical character of the ‘Common Law Mind’ as a mistake. Adapting Maitland’s distinction between the lawyer’s ‘logic of authority’ and the legal historian’s ‘logic of evidence’, George Garnett argues that there is always a balance to be struck. If the logic of authority determined the temporality of the law, giving priority to judicial interpretation, history could still be in play behind interpretation. Pocock’s assumption that the Common Law was unhistorical overlooked the imaginative ways in which in the late sixteenth and early seventeenth centuries Sir Edward Coke did make use of history to support his conception of law and the ancient constitution.58 Even so, Pocock was not writing the history of the Common Law for its own sake; rather he was seeking to understand its significance as a historical framework for English politics and its role in the development of English historiography. In this perspective, what mattered was the contrast with the much more sophisticated comparative historical perspective required to understand feudal law. The point was not simply, as Jacques Cujas and the ‘Historical School’ had argued, that feudal law had been a Lombard innovation upon the Civil Law; but, as James Harrington realised, that feudal law was tied to the evolution of landholding itself. It was the achievement of Harrington and of Henry Spelman to have introduced this historical understanding of feudal law into the English debate, and hence to have placed the ‘ancient constitution’ on a more flexible, enduring and actively debatable basis.59 Subsequently the historicity of feudal law would inform some of the most innovative works of legal historiography in the eighteenth century, including Pietro Giannone’s Civil History of the Kingdom of Naples (1724), Montesquieu’s Spirit of the Laws (1748), and John Dalrymple’s Essay towards a General History of Feudal Property in Great Britain (1757)60 Questions of time and history have thus been integral to Roman, Common, and Feudal Law. The same questions may also be found in Canon and International Law, two other forms of law of obvious political significance, but not covered in this 57

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John G. A. Pocock, The Ancient Constitution and the Feudal Law. A Study of English Historical Thought in the Seventeenth Century (Cambridge, 1957), re-issued as A Reissue with a Retrospect (1987), Chapters II–III: ‘The Common-law Mind’. George Garnett, ‘The Logic of Authority, and the Logic of Evidence’, in this volume, Chapter 3. Pocock, Ancient Constitution and the Feudal Law, Chapters IV–VI. Davis, Periodization and Sovereignty, 59–61, charges Pocock with treating Spelman as ‘re-discovering’ feudal law, rather than ‘writing’ its history. This seems misplaced: on Pocock’s account, Spelman’s was a reconstruction of the introduction of ‘feudal’ law into England, presented as its ‘discovery’. On Giannone, Pocock, ‘Origins of the study of the past’, 176–7; on Montesquieu, Michael Sonenscher, Before the Deluge. Public Debt, Inequality, and the Intellectual Origins of the French Revolution (Princeton and Oxford, 2007), 131–9. Dalrymple is discussed by Aaron Garrett, ‘Law, Chronology, and Scottish Conjectural History’, in this volume, Chapter 8.

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volume. Lawyers’ desires to elevate legal judgement above its historical contexts and to distinguish law’s history and temporality from those of politics are understandable, but, this volume will suggest, unsustainable.61 Rather, the varied temporalities of law and the histories in which legal systems have been set have offered multiple perspectives for political thinking. The significance of sacred time and history as a framework for political thinking has only recently come into focus. The classic discussion of sacred time was Augustine’s in the Confessions, Book XI. The problem of time, Augustine argued, was intrinsic to the attribution of Creation to the Word; for the Word was language, and language unfolds in a temporal succession. Augustine’s solution was a radical distinction: the Word of the true (Christian) God is in its own time, the categorically distinct time of the nunc-stans, the eternal. Only on the supposition that God acted in an eternal present of his own could the Creation, from nothing, of the natural and human world make sense. As created, this natural–human world has its own time, and the narrative in the opening chapters of Genesis was its first history. Augustine argued that the human experience of time must be deeply problematic, for past and future are constantly collapsing into the present. At most, past and future are ‘distensions’ from the present. As a result, Augustine had concluded in Book V of the City of God, humans could only experience time as radically unstable, and must accept that it is governed by God’s inscrutable providence. For all its subtlety, however, Augustine’s discussion of time was not definitive for all Christians: as Caroline Humfress shows, Christian jurists in the Eastern Roman Empire, which had not collapsed under the burden of human frailty, were confident that human time would in due course rejoin eternity.62 There were, in any case, several other ways of framing sacred time and history. One was obviously the Bible, as the text which contained the revealed Word of God as it related to the created world, to humans and in particular to God’s chosen people. The Word of God had been revealed to the Hebrews by prophecy, and either written down by or recorded for a series of prophets, beginning with Moses, whose books were collected in the Jewish Bible or Old Testament. Later it had been revealed anew to Jews and Gentiles in the words of Jesus Christ and the memories of his Apostles, and recorded in the Gospels, Acts and Letters of the New Testament. Taken by Christians until at least 1800 to be the oldest written record of human affairs, the Bible was the foundational document of human  history, 61

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As Natasha Wheatley herself demonstrates in her article ‘Legal pluralism as temporal pluralism: historical rights, legal vitalism, and nonsynchronous sovereignty’, in Edelstein, Geroulanos and Wheatley, eds., Power and Time, 53–79, a study of the contortions into which Australian Common Law has wound itself in order to resist Indigenous land claims based on custom. Humfress, ‘Out of time? Eternity, Christology, and Justinianic law’, in this volume, Chapter 1. As Humfress points out, the temporality of Justinianic Law undercuts the account of Western Christian temporality recently offered by Hartog, ‘Chronos, Kairos, Krisis’.

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the  key  to historical understanding of human beginnings as well as a guide to humanity’s future prospects. As a document, the Bible was increasingly recognised to be unstable: not only were there multiple versions of the text, with no original, but scholarship had exposed its internal inconsistencies, not least in its chronologies. Yet arguably chronology was also what enabled the Bible to keep its credibility for so long as a framework for human history. For although by 1700 students of natural history were clearly suggesting that the earth must be far older than Biblical dating of Creation allowed, as a framework for human history the chronology of the Old Testament died a much slower intellectual death. Variously calculated between 4,000 and 6,000, the number of years from the Creation to the birth of Jesus remained sufficient to cover the known period of ‘ancient’ human history until the discoveries of archaeology in the nineteenth century.63 For their part, the historical and prophetic books of the Old Testament offered political thinkers several examples to ponder, from the Exodus, through the Hebrew Republic instituted by Moses, to the monarchies of Saul and his successors, and finally the experience of subjection to foreign imperial monarchy. These might be interpreted as inspiration or warning; they also provided material for comparison with what was known about political organisation in the rest of the ancient world.64 While those uses of sacred history are increasingly studied, however, what is still under-explored is how understanding of the political lessons of the Bible was shaped by assumptions concerning its documentary status and conceptual construction as the Word of God. The seventeenth-century political thinker who most explicitly addressed those issues was Benedict Spinoza, in his Tractatus theologico–politicus (1670). Far from being ancillary to his political thinking, I argue in this volume, it was Spinoza’s engagement with those issues that enabled him to make of the Bible such a powerful historical and conceptual resource.65 The New Testament added a further dimension to sacred history and its temporalities. For in the death of Jesus was revealed the prospect of Christ’s return, the resurrection of the dead, and the institution of his kingdom on earth. The obvious, urgent question was: when? As passages of Acts indicate, for early Christians the answer was imminently, and the faithful had prepared accordingly, adopting community of goods. But as that imminence faded, expectations had to be extended. Whence eschatology, the anticipation of that future moment, calculation of when 63 64

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Edoardo Tortarolo, ‘L’eutanasia della cronologia biblica’, in Camilla Hermanin and Luisa Simonutti, eds., La centralità del dubbio. Un progetto di Antonio Rotondò, 2 vols. (Florence, 2011), I, 339–59. From a growing literature: Kalman Neuman, ‘Political Hebraism and the early modern “Respublica Hebraeorum”: on defining the field’, Hebraic Political Studies, 1:1 (2005), 57–70, and many subsequent contributions to the journal. Among monographs, Eric Nelson, The Hebrew Republic. Jewish Sources and the Transformation of European Political Thought (Cambridge, MA, and London, 2010); and John Coffey, Exodus and Liberation: Deliverance Politics from John Calvin to Martin Luther King Jr. (New York, 2013). John Robertson, ‘The recourse to sacred history before the Enlightenment: Spinoza’s Theological– Political Treatise’, in this volume, Chapter 7.

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it was to be expected, and the preparations humans could make for its fulfilment. The Book of Revelation provided eschatology with a handbook, even if its obscurity required ingenuity as well as faith to decipher its meaning. On these terms eschatology had the potential to be highly disruptive: as Koselleck, pointed out, in several respects it had anticipated the revolutionary ‘horizon of expectation’ he associated with modernity. Even so, to focus on eschatology as the primary form of Christian time misses the determination of the churches and civil authorities to impose alternatives. Representing the body of Christ, the concept of the Church constituted a postponement strategy in its own right; consistent with this, even the Book of Revelation was reinterpreted as projecting Christ’s return into a receding future. Having taken upon themselves responsibility for Christ’s return, the Churches East and West reinforced their authority by fostering a new form of sacred history, ecclesiastical history. To this end the Churches acquired archives fit to counter any historical challenges to their authority, and promoted a form of historical writing which explicitly advertised its documentary ‘proofs’.66 Ecclesiastical history continued to provide a first line of defence against eschatology through the Reformation.67 Nevertheless, reinforcements were needed after the reformers had renewed eschatological expectations. In response, as Sarah Mortimer shows in her contribution, both nature and politics once again looked rather more attractive as frameworks for peaceable living, even to Catholics who had to uphold Papal authority.68 By the seventeenth century, it seemed to many political thinkers that only a combination of natural law and the identification of ecclesiastical with civil authority would effectively contain the danger. In an early essay, John Pocock interpreted Parts III and IV of Hobbes’ Leviathan as a radicalisation of this response, one which rendered all prediction of Christ’s return a threat to civil peace.69 In his chapter in this volume, Quentin Skinner goes yet further, arguing that Hobbes’ understanding of time as simply ‘the Phantasme of Before and After in Motion’ entailed a denial of the very premise of eschatology, that Christ’s return could ever be foreknown.70 Still another, powerful concept in the armoury of Christian thinking about time and history was that of divine providence. Augustine, it seemed, had left humans to submit to the inscrutability of providence. But the Scholastic distinction between 66

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On the innovatory character of ecclesiastical history from the outset: Arnaldo Momigliano, ‘Pagan and Christian historiography in the fourth century ad’, in Arnaldo Momigliano, Essays in Ancient and Modern Historiography (Oxford, 1977), 107–26. Katherine van Liere, Simon Ditchfield and Howard Louthan, eds., Sacred History. Uses of the Christian Past in the Renaissance World (Oxford, 2012); and on the sophistication with which the Roman Catholic Church understood the ‘truth’ of ecclesiastical history, Stefania Tutino, Shadows of Doubt. Language and Truth in Post-Reformation Catholic Culture (Oxford, 2014). Sarah Mortimer, ‘Christian Time and the Commonwealth’, in this volume, Chapter 4. John G. A. Pocock, ‘Time, history and eschatology in the thought of Thomas Hobbes’, first published in 1970, and reprinted in Politics, Language and Time, 148–201. Quentin Skinner, ‘Hobbes on the Theology and Politics of Time’, in this volume, Chapter 6.

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God’s ‘absolute’ and ‘ordinary’ powers allowed humans to believe that divine intervention might have a benevolent purpose. In his absolute power, God might intervene at any point in time, in any way; but ordinarily his providence could be expected to underwrite regularity in human affairs, endorsing, even taking the credit for secular outcomes. As late as the early eighteenth century Vico would be able to adapt the orthodox doctrine of providence to underpin his ‘new science’ of history.71 As he was doing so, the deeply Augustinian Pierre Bayle may have reframed the theodicy problem in terms which threatened to dispense with providence for good; yet, as Chris Meckstroth will argue, Kant could still draw from Leibniz’s response to Bayle a fresh defence of higher future purpose as enabling present action.72 The temporalities of the divine, coupled with the resources of sacred and ecclesiastical history, would continue to present opportunities as well as obstacles to political thinkers well into the twentieth century, if not beyond. The most enduring challenge to the concept of divinely ordered time was that presented by contingency, the recalcitrant unpredictability of events. Perhaps the most purely political of all conceptions of time, contingency was first theorised as Kairos by Plato as the statesman’s moment of opportunity, and recurred constantly in Thucydides’ history as the undoing of Athenian hubris.73 As the Latin occasio, the concept was likewise a constant of Roman historiography, and of Plutarch’s Lives. Thence it was taken up anew in the Renaissance, and re-worked by Machiavelli in the most compelling of all its formulations in his concepts of Fortuna and necessità.74 Machiavelli’s accounts of the politics they entailed, individual in The Prince, republican in the Discourses, would thenceforth be the reference points for the challenge and the opportunities afforded by contingency, for political thinkers and historians of political thought alike.75 Alongside these were the Discourses and the Histories of Florence and of Italy by his contemporary Guicciardini. Critical of Machiavelli’s readiness to jump from individual historical observations to general 71

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Enrico Nuzzo, ‘Between orthodoxy and heterodoxy in Italian culture in the early 1700s: Giambattista Vico and Paolo Mattia Doria’, in Sarah Mortimer and John Robertson, eds., The Intellectual Consequences of Religious Heterodoxy 1600–1750 (Leiden and Boston, 2012), 205–34. See also Robertson, ‘The Recourse to Sacred History’, in this volume, Chapter 7. Chris Meckstroth, ‘Kant on History, or Theodicy for Mortal Gods’, in this volume, Chapter 10. Melissa Lane, Method and Politics in Plato’s Statesman (Cambridge, 1998), with the elaboration of its wider implications in ‘Political theory and time’, in Patrick Baert, ed., Time in Contemporary Intellectual Thought (Amsterdam, 2000), 233–50. Joanne Paul, ‘The use of Kairos in Renaissance political philosophy’, Renaissance Quarterly, 67:1 (2014), 43–78. The classic studies being of course John G. A. Pocock, The Machiavellian Moment. Florentine Political Thought and the Atlantic Republican Tradition (Princeton and London, 1975, third reissue, 2016), its title and content directly addressing Machiavellian temporality; and Skinner, Foundations of Modern Political Thought I: The Renaissance, Part II, and Machiavelli (Oxford, 1981), with its discussion of Machiavelli’s understanding of Fortuna. But see now Anna Becker, Gendering the Renaissance Commonwealth (Cambridge, 2020), 74–105, for qualifications of both.

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political conclusions, Guicciardini revitalised the classical narrative as a display of political responses to contingency, from the triumphant to (more usually) the disastrous.76 This would continue to be the dominant model of historiography over the following two centuries, reinforced by the early seventeenth-century vogue for Tacitus, and proving itself particularly well adapted to the contingencies of civil war. Within and alongside these histories, discussions of the politics of contingency were integral to the growing body of reason of state theory, whence they reverberated more widely in moral theology, moral philosophy and early forms of probability theory.77 In early seventeenth-century England in particular, these discussions reached levels of complexity which repay discriminating reconstruction, as the contributions below of Kinch Hoekstra and Quentin Skinner will demonstrate. They also provide essential context for Hobbes’ translation of Thucydides and thence for reassessment of the role of contingency and the contribution of history in his later, avowedly philosophical political works. Hoekstra demonstrates in particularly fine detail the different ways in which writers of ‘politic history’ understood the relation between their narratives, the ‘examples’ they yielded, and moral and political ‘precepts’. In the face of the classical learning, the intellectual discrimination, and the linguistic richness of a Sidney, or a Bacon, or a Hobbes the translator of Thucydides, it becomes clear that Koselleck’s suggestion of unitary pre-modern category of historia magistra vitae, history teaching lessons on the basis of a straightforwardly recursive temporality, is a misleading simplification.78 Directly addressing Hobbes’ discussions of time, Skinner not only demonstrates how radical were his rejections of Christian time and its promise of eternal life, as of the Common Lawyers’ insistence on the normativity of time as custom. What most exercised Hobbes, Skinner argues, was contingency itself. For Hobbes, unlike Machiavelli, time was not a dimension of political opportunity, but a dangerous state of imaginative uncertainty, on which the sovereign power must seek to impose intellectual and political order.79 There is a difference of emphasis here, Hoekstra arguing for the continuing salience of history to Hobbes’ later, avowedly ‘philosophical’ political thinking, Skinner focussing on Hobbes’ critical apprehension of time. What is clear, however, is that for all Hobbes’ aspiration to create a political philosophy universal in scope, history and time were central to its conception. Even if the classic discussions of contingency were early modern, this was of course a way of thinking about politics with a long history still ahead of it, one whose 76 77

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Felix Gilbert, Machiavelli and Guicciardini. Politics and History in sixteenth-century Florence (Princeton, 1975); Mark Phillips, Francesco Guicciardini. The Historian’s Craft (Manchester, 1977). On the last, David Wootton, ‘From fortune to feedback. Contingency and the birth of modern political science’, in Ian Shapiro and Sonu Bedi, eds., Political Contingency. Studying the Unexpected, the Accidental, and the Unforeseen (New York, 2017), 21–53. Kinch Hoekstra, ‘Politic History’, in this volume, Chapter 5. Skinner, ‘Hobbes on the Theology and Politics of Time’, in this volume, Chapter 6.

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preoccupation with the present guarantees its endurance. A fine later example is offered by Clark’s Bismarck, whose self-image was as ‘a boatman on the river of time’, for whom ‘history unfolds in unforeseeable and fleeting moments of opportunity’.80 Harsher, by contrast, was Carl Schmitt’s insistence that the contingency of politics is equivalent to a constant state of exception, to which dictatorship might be as legitimate a response as any other.81 As Blake Ewing has emphasised, the contingent is not simply the antithesis of the timeless: it always requires judgement of the appropriate temporal horizon.82 In this perspective, Harold Wilson’s remark that a week is a long time in politics was not merely banal; it was misleading precisely in the apparent fixity of its timescale. Even as the language of contingency and opportunity was in its late sixteenth and seventeenth-century heyday, new problems had come into focus, requiring a quite different, much longer temporal and historical perspective, focussed on ‘society’.83 At least two already encountered conceptual issues prompted the new line of enquiry. One was the need to understand the political as well as the legal consequences of the decline of feudal tenure on the land, and the growing importance of commerce and credit to ‘political economy’ (itself a coinage of reason of state theory). As exchange relations proliferated at all social levels, and governments struggled to assert control over them, the Aristotelian and Scholastic assumption that the civitas, the city or political community, subsumed familial and economic relations because it gave them their purpose, was set aside: in the process, societas was prised away from the civitas.84 The second conceptual challenge reflected the puzzlement, too often contempt, felt by Europeans towards the indigenous peoples encountered in the Americas and Indies. Many of those peoples did not fit the stereotype of the ‘barbarian’ inherited from the ancients; instead, the harsher ‘savage’ was coined to cover them. Although presumptively pejorative, these categories nevertheless created space for new enquiries into the range of social institutions, familial, religious and economic, which had made possible the existence of such peoples. The first of these developments inspired a reassessment of the history and purposes of law and government in ‘modern’ Europe, whose most fertile expressions, published within a very few years of each other, were Montesquieu’s Esprit des Lois (1748) and Hume’s Essays and Political Discourses (1741–1742, 1752). In turn, these

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Clark, Time and Power, 118–70, 212. On Schmitt, Yaqoob, ‘After Historicism’, in this volume, Chapter 12, pp. 270–4. Blake Ewing, ‘Conceptual history, contingency and the ideological politics of time’, Journal of Political Ideologies, 26:3, (2021), 262–77. Pocock characterised this as ‘the rise of the social’, a phrase adopted from Hannah Arendt, The Machiavellian Moment, 550, 573. For the arguments used by Pufendorf to effect this move: István Hont, ‘The language of sociability and commerce: Samuel Pufendorf and the theoretical foundations of the “Four-Stages Theory”’, in Pagden, ed., Languages of Political Theory, 253–76.

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spurred new ways of writing the ‘civil history’ of Europe’s nations.85 The second, by contrast, had initially been discussed in the universal language of natural law; but it was quickly clear that more historical questions also needed to be asked. Among the first to engage with them were Spanish missionaries in the Americas, notably José de Acosta. Acosta could explain the origin of the ‘Indians’ from within sacred history: they were descendants of Japhet who had migrated from Asia. But he also explored their forms of social, religious and political organisation, and identified in them different phases of development.86 By the eighteenth century such thinking yielded what historians have termed the ‘stadial’ model of the ‘progress of society’, whereby there had been four ‘stages’ through which society has progressed: the ‘savage’, identified with hunter–gatherers; the ‘barbarian’, with pastoral nomads; the agricultural, with settled farmers; and the ‘civilized’ or commercial. Recognised as the most notable conceptual innovation in Enlightenment historiography, stadial theory is particularly associated with the philosophers and historians of the Scottish Enlightenment. Stadial theory had two important implications for thinking about politics. First, reversing the previous conceptual hierarchy, it tended to fold politics, government, back into ‘society’. In the perspective of the stadial ‘progress of society’, political arrangements had been adapted to the property relations, whether ownership of herded animals, of land, or of goods exchanged by trade, which were dominant at each stage of society’s development. Conceived thus, political life, citizenship, lost its telos as the highest form of human association, yielding to a more general concept of progress as human betterment. Second, stadial theory set history in a much longer temporal perspective. It was acknowledged that this might stretch beyond the available evidence, in which case ‘conjecture’ was permitted to fill the gaps, (making ‘conjectural history’ an alternative to ‘stadial history’ as a designation for the approach). But there was a counterbalancing sense of uncertainty about where and when the process might end. Stadial history was progressive in that it was envisaged (as by Adam Smith) as resulting in a commercial society in which the ‘necessaries and conveniences’ of life were available to all ranks, and personal freedom was secured; but it was not purposive, understood as necessarily leading to a certain end of manifest value. For all the scholarly recognition it has been accorded, there are still questions to ask of stadial history.87 While a history written on stadial principles can be

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Pocock, Barbarism and Religion, II, Narratives of Civil Government (Cambridge, 1999). José de Acosta, Historia natural y moral de las Indias (1590), translation as Natural and Moral History of the Indies by Frances López-Morillas (Dublin, NC and London, 2002); on which, in the context of the wider debate, Anthony Pagden, The Fall of Natural Man. The American Indian and the Origins of Comparative Ethnology (Cambridge, 1982). The extent to which understanding of stadial history has developed is marked by the distance between the pioneering work of R. L. Meek, Social Science and the Ignoble Savage (Cambridge, 1976), and the study by Silvia Sebastiani, The Scottish Enlightenment. Race, Gender, and the Limits of Progress (Basingstoke and New York, 2013).

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characterised as a narrative – examples would be Book III of Adam Smith’s Wealth of Nations, or the accounts of indigenous peoples in William Robertson’s History of America – the historical evidence on which the narrative was based was explicitly ordered by a conceptual model of forms of society and their development in time. How that model was constructed and the understanding of time on which it rested, as well as the scope for different understandings of human nature, of distinctions between humans (and between humans and animals), and of the possible temporalities of development – all need further investigation. Two contributions to this volume address these issues directly. One, by Aaron Garrett, explores the legal and epistemological issues which prompted the initial recourse to conjectural history by the jurist Lord Kames, and the use he made of David Hume’s philosophy to conceive of historical processes in which time was not governed by conventional Biblical chronology.88 The other, by Silvia Sebastiani, opens up hitherto underappreciated differences between the Scottish historians over how to understand and conceptualise the relation between nature, society and history. Adam Smith and Adam Ferguson, following Hume and Buffon, might think in terms of a natural progress of stages from primitive savagery to commercial civilization. But by taking seriously Rousseau’s insistence on distinguishing the natural from the social and ascribing to humans only ‘perfectibility’, James Burnet (Lord Monboddo) offered an alternative at once less confident of progress and more open to human diversity.89 Framing the political within the history of the social would of course have a long and rich future; the suggestion here is that a better understanding of the conceptual formation of stadial history may enhance appreciation of how this perspective has developed since. Just as the longue durée of the social was coming into focus as a perspective on the political, it was abruptly challenged by the explosion of the French Revolution. In the face of this irruption into the existing timescales of eighteenth-century politics, Koselleck’s thesis of a new temporality and a new understanding of history is at its most fertile; and it is arguable that the history of political thought, whose focus was for so long on the three hundred years prior to 1800, has still to reckon fully with the ensuing transformations of its subject.90 Not only was the temporality of politics accelerated during the Revolution, existing historical perspectives struggled to make sense of such a cataclysm. Edmund Burke’s Reflections on the Revolution in France (1790) captured the urgency of the events, but his affirmation of the value of tradition and continuity was not an attempt to understand the new political imaginary in 88 89

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Aaron Garrett, ‘Law, Chronology, and Scottish Conjectural History’, in this volume, Chapter 8. Silvia Sebastiani, ‘Civilisation and Perfectibility: Conflicting Views of the History of Mankind?’, in this volume, Chapter 9; also, Jean Frédéric Schaub and Silvia Sebastiani, Race et Histoire dans les sociétés occidentales (xve–xviiie siècle) (Paris, 2021), 374–86: ‘Le tournant anthropologique des lumières’. But see John Dunn, ‘Revolution’, in Terence Ball, James Farr and Russell L. Hanson, eds., Political Innovation and Conceptual Change (Cambridge, 1989), 333–56.

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its own terms. The revolutionaries themselves were aware that they were changing the political timetable, famously drawing up a new calendar.91 But understanding of what was happening to the time in which politics were being conducted was another matter. Two features of the Revolution posed new questions of political time. One, emphasised by Koselleck, was the formulation of demands in the universal terms of the rights of man and woman. The American colonies’ Declaration of Independence had also begun with such a formulation, but had been followed by a low-intensity war and then by a period of constitutional debate which for all its vehemence resulted in no equivalent of the Terror. In France the constitutional proposals advanced by the Abbé Sieyès in his What is the Third Estate? (1789) were quickly superseded; there was none of the deliberative latitude accorded to its American contemporary, The Federalist (1787–1788). Instead, the appeal to fundamental, prepolitical, ‘natural’ rights empowered the use of pre-emptive violence against dissenters, even among fellow revolutionaries.92 A second feature of the French Revolution was the emphasis it placed on collective rather than individual agency, action not only in the name of, but by the ‘people’, the ‘nation’. Before the Revolution, Keith Baker argued, ‘public opinion’ had been taken to represent the collective, presenting the monarchy with a supposedly consensual agenda of reform.93 But in revolution the collective agent radicalised its demands and shortened its timescale. This took revolutionary politics beyond the bounds of contingent opportunity, requiring a new horizon, not only of expectation but of justification. In his contribution to the volume Time and Power, Dan Edelstein has suggested that we think of revolutionary time as the ‘future perfect’: action in the present will have been justified by its outcomes.94 In this volume Chris Meckstroth frames the problem more specifically as one of collective agency, before setting out what he takes to have been the response offered by Kant. Hostile to revolution as a means of political change, but committed to the general will as a basis for political legitimacy, Kant would identify the idea of progress with a people’s duty of self-improvement, making it possible to invoke the future to enable change in the present.95 As Koselleck would underline, the idea that the future gave purpose to the present would likewise inform the philosophy 91 92 93

94 95

Lynn Hunt, Measuring Time, Making History (Budapest, 2008). Dan Edelstein, The Terror of Natural Right: Republicanism, the Cult of Nature and the French Revolution (Chicago and London, 2010). Keith Michael Baker, ‘Public opinion as political invention’, in his collection Inventing the French Revolution. Essays on French Political Culture in the Eighteenth Century (Cambridge, 1990), 167–99. On the ‘nation’ as a natural, pre-political entity: István Hont, ‘The permanent crisis of a divided mankind: “nation-state” and “nationalism” in historical perspective’ (1994), reprinted in his Jealousy of Trade. International Competition and Nation-State in Historical Perspective (Cambridge, MA and London, 2005), 447–528. Dan Edelstein, ‘Future perfect: political and emotional economies of revolutionary time’, in Edelstein, Geroulanos and Wheatley, eds., Power and Time, 357–79. Meckstroth, ‘Kant on History’, in this volume, Chapter 10.

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and practice of history in the nineteenth century, being a key component of what came to be known as Historicism. It is much less likely, however, that one concept of history was so dominant that it exhausted the possible perspectives in which politics might be understood after the French Revolution. In Restoration and Orléanist France, historical perspective was sought by rethinking the history of society. The finest outcome, Alexis de Tocqueville’s Ancien Régime et la Révolution (1856), might echo the thesis that the revolution had been a philosophe conspiracy; but Tocqueville’s deeper argument, shared with moderate French Liberals, was that the revolution had been the product of a longer-term social process of democratisation, creating a political problem the French state was historically ill-equipped to resolve.96 In Germany, by contrast, law came to the rescue of those seeking to re-establish a historical connection with the pre-revolutionary order. As Charlotte Johann argues in her chapter (previously mentioned in relation to law’s temporalities), different historical approaches offered solutions to the problem of identifying an authentically national basis for a legal system to substitute for the codifications imposed by Napoleon. Savigny, founder of the ‘Historical School’, argued for a conception of law as the expression of the consciousness of the German people but not of its agency – law was for jurists to interpret. In response, the Hegelian Eduard Gans defended a connection between law and politics, but in the name of the historical continuity of the Prussian state, whose agency had been illegitimately interrupted by revolutionary violence. Both Savigny and Gans conceived of law historically; but they differed sharply in the political conclusions they drew from its history in Germany.97 More generally, a broad historicism, the belief that history embodied political purpose, proved resilient among German thinkers, buoyed by the conviction that the newly united and increasingly powerful Kaiserreich constituted the promised German nation-state. It took the successive shocks of world war, the Russian Revolution and the National Socialist rejection of history in favour of an eternal Germanness to throw Historicism into terminal (if protracted) crisis. As Waseem Yaqoob shows in his contribution in Chapter 12 in this volume, the historical perspective which had lent purpose to the German nation-state splintered in multiple directions, one of them taken by Koselleck himself.98 If anything, however, the debate over how to understand politics within time and history became richer as the sense of singular purpose fractured. By the second half of the twentieth century, historical approaches to politics within the German tradition were multiple, and hardly indicative of a common sense of modernity.

96 97 98

On Tocqueville’s historiographic context: Larry Siedentop, ‘Two liberal traditions’, in Alan Ryan, ed., The Idea of Freedom. Essays in Honour of Isaiah Berlin (Oxford, 1979), 153–74. Johann, ‘Law’s Histories in Post-Napoleonic Germany’, in this volume, Chapter 11. Yaqoob, ‘After Historicism’, in this volume, Chapter 12. On the completely different attitude to history promoted by the Nazis: Clark, Time and Power, Chapter 4.

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One more setting for the place of time and history in political thought is broached – it cannot be as fully developed – in this volume: that now termed the ‘global’. Perhaps unsurprisingly, this is a setting in which the temporality and historicity of the ‘modern’ have taken on a new lease of life. In this case, Koselleck has played a supporting role, less significant for his specific construction of ‘modernity’ than for his practice of conceptual history. In a global setting, the preoccupation with the modern derives from the need to push back against the story told by midtwentieth-century scholars, for whom the impact of the Western upon Middle Eastern and Asian intellectual worlds in the nineteenth century had consigned Islam and Confucianism to the category of ‘traditional’, hence by definition incapable of responding to the challenges of the ‘modern’.99 Where the response might have been to render the ‘modern’ problematic, however, many global intellectual historians have retained the category, arguing instead that it is the ‘modern’ which made possible the ‘global’. This argument for the global modern has taken various forms, each of which invites scrutiny. One contends that a ‘global’ intellectual history presupposes the process of globalisation through commerce and the networks of exchange it generates. Variants of this position range from Andrew Sartori’s thesis that the abstraction of commodity exchange is the indispensable condition of global thinking, to a more tangible emphasis on the importance of knowledge transfer through books, translations and publishing enterprises, a process not established at all widely until the nineteenth century.100 In this perspective, what should be studied are networks, not contexts, for it is the former which enable the intellectual historian to transcend the local, and identify how knowledge travels back and forth between intellectual cultures.101 To equate networks with modernity, however, risks discounting the rather different interactions of Europeans with the newly ‘discovered’ intellectual cultures of the Americas and Asia in the ‘pre-’ or ‘early’ modern period between the fifteenth and the eighteenth centuries. Even where Europeans conquered and subjugated indigenous peoples, the imperatives of missionary activity generated curiosity about the thinking of those to be converted. A fortiori, in spaces which could not be conquered, most notably China, small numbers of Europeans sought the exchange of knowledge, as of other goods, on the best terms the local intellectual authorities would allow. In this phase, as Antonella Romano underlines, the global intellectual historian’s perspective must be plural and non-binary, not distracted into a false debate over the origins of modernity. There were multiple 99 100

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Andrew Sartori ‘Intellectual history and global history’, in Whatmore and Young, eds., Companion to Intellectual History, 201–12. Andrew Sartori, ‘Global intellectual history and the history of political economy’, and Christopher L. Hill, ‘Conceptual universalization in the transnational nineteenth century’, in Samuel Moyn and Andrew Sartori, eds., Global Intellectual History (New York, 2013), 110–33, 134–58. Rosario López, ‘The quest for the global: remapping intellectual history’ (review of Moyn and Sartori), History of European Ideas, 42:1 (2016), 155–60.

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‘lieux de savoir’ in that world.102 By the eighteenth century, Asia from Persia to China had become a point of comparison for Europeans, not always in the latter’s favour; and its history had become a subject to be understood, not derided.103 A second, more strictly intellectual deployment of the modern argues that it was by thinking ‘modern’ for themselves that exponents of Muslim, Confucian and other traditions of religious–philosophical thought were able to participate in intellectual exchange with the West. Specifically, it enabled them to generate concepts which were not simply equivalents of European counterparts, but were actively universalised in the process of translation into their own idioms.104 Another way that Islamic, South Asian, Chinese and Japanese thinkers could appropriate modernity for themselves was by recovering and re-assessing their textual heritages, a process exemplified in the Indian nationalist preoccupation with the Arthas´a¯stra and the Bhagavad Gita. That the texts were ancient was no obstacle to their re-interpretation as modern.105 Here too, however, there is a danger that a predisposition to the ‘modern’ forecloses investigation of thinking about morals and politics in the non-European world before it was obliged to interact with Europe. In particular, the focus of much global intellectual history on concepts has pre-empted enquiry directed more broadly into political languages. Yet as Pocock has pointed out, it is obvious that there have been many languages of politics across the globe, each with its own contexts, which may, but need not, have been a function of independent statehood. These languages had their own conceptions of political time, and their own, varied relations to history.106 In some cases, such as Sanskrit, their geographical reach was such as to qualify them as global in their own time – in Sanskrit’s, a period of over a thousand years. As Sheldon Pollock observes in making this case, ‘the political–cultural salience of Indian epic discourse’ in Sanskrit and its vernaculars was not invented by ‘nationalist modernity’.107 A text such as the Arthas´a¯stra had a complex ancient history, one, it has recently been argued, with a specific political content.108 To be sure, the 102 103

104 105

106 107 108

Antonella Romano, Impressions de Chine. L’Europe et l’englobement du monde (xvie–xviie siècle) (Paris, 2016), esp. 7–26, with comments on modernity at 21 and 25. Pocock, Barbarism and Religion IV: Barbarians, Savages and Empires, Part II ‘Joseph de Guignes and the discovery of Eurasia’; Jessica Patterson, Religion, Enlightenment and Empire. British Interpretations of Hinduism in the Eighteenth Century (Cambridge, 2022). Hill, ‘Conceptual universalization’, esp. 147–54. For reflections on the application of conceptual history to Latin America, Breña, ‘Tensions and challenges’. Faisal Devji, ‘Apologetic modernity’, Modern Intellectual History, 4:1 (2007), 61–76; Cemil Aydin, ‘Globalizing the intellectual history of the idea of the “Muslim World”’, in Moyn and Sartori, eds., Global Intellectual History, 159–86; Shruti Kapila and Faisal Devji, eds., Political Thought in Action. The Bhagavad Gita and Modern India (Cambridge, 2013). John G. A. Pocock, ‘On the unglobality of contexts: Cambridge methods and the history of political thought’, Global Intellectual History, 4:1 (2019), 1–14, a response to Moyn and Sartori, and also to López. Sheldon Pollock, ‘Cosmopolitanism, vernacularism, and premodernity’, in Moyn and Sartori, eds., Global Intellectual History, 59–80, quotation at 68. Mark McClish, The History of the Arthas´a¯stra. Sovereignty and Sacred Law in Ancient India (Cambridge, 2019).

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challenge of studying so many languages of politics is far greater than that of tracking individual or groups of concepts; at the least, the historian of political thought faces a daunting problem of translation.109 But the promise of global intellectual history will be only partially fulfilled if it is not addressed. A truly global history of political thought presupposes respect for the multiplicity and difference of political languages, their contexts, and their historical and temporal perspectives, well beyond what can be covered by a common ‘modernity’.110 Even when ancient texts were reinterpreted to serve the purposes of Indian nationalism, the modernity constructed from them was very different from that espoused by Europeans. A particularly dramatic illustration of the difference is offered by Shruti Kapila, in her interpretation of the commentary on the Bhagavad Gita by B. G. Tilak, the leader of the anti-British Swadeshi agitations in Bengal between 1905 and 1908. From the Gita Tilak drew a concept of political action as an irruption of enmity, a wilful break in the assumed sequence of ethical and sacred time, which pitted the inhabitants of India against each other as much as against the imperial power. In this moment, violence, sacrifice, even death were to be expected. Kapila emphasises that what was modern in Tilak’s thinking is not to be understood in European terms. This was neither Kairos nor revolution, nor was it Carl Schmitt’s state of exception. It was not the agency of the state which must create a new political time, but sacrificial violence (or, on Gandhi’s rendering, the no less sacrificial non-violence of the everyday life of the self). Constructed out of ancient Sanskrit culture, this was a ‘subaltern’ response to empire, framed in defiance of the Liberalism with which other Indian political thinkers were attempting to bridge the gap to their British rulers.111 It expressed a concept of the political, its temporality and its relation to history that was ‘global’ not because it shared ground with European thought, but because it drew on the rich, different resources of political language available in late nineteenth and twentieth-century India. Even when non-Europeans were willing to accept the European offer of an apparently common, universal language, such as that of Human Rights, they are ill-understood as doing so in the name of a common modernity. This is not simply because, as Sam Moyn has argued, logic alone was insufficient to ensure global 109

110

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For a thoughtful discussion of the problem of translation and temporality facing both Pocock’s history of discourses and conceptual history, Alexandra Lianeri, ‘A regime of untranslatables. Temporalities of translation and conceptual history’, History and Theory, 53:4 (2014), 473–97. For examples of what is possible, ‘Forum: textures of time’, History and Theory, 46:3 (2007), 366–427, including Sheldon Pollock, ‘Pretextures of time’, 366–83, Christopher Chekuri, ‘Writing politics back into history’, 384–95, and Rama Mantena, ‘The question of history in precolonial India’, 396–408; Wayan Jarrah Sastrawan, ‘Temporalities in Southeast Asian historiography’, History and Theory, 59:2 (2020), 210–26. Shruti Kapila, Violent Fraternity. Indian Political Thought in the Global Age (Princeton and Oxford, 2021), esp. Introduction, Chapter 1, 49–51, and Chapter 4, 149–50. I am indebted also to her 2018 conference paper, ‘Time in modern Indian political thought’, presented to the conference ‘Political Thought, Time, and History’, Clare College, Cambridge, 11 May 2018.

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acceptance of human rights; they needed to make political sense to those espousing them in the second half of the twentieth century.112 But to make such political sense required a reckoning with the European history which had produced the doctrine. The complexity of that reckoning in the case of the Algerian Revolution is the subject of the final contribution to this volume, by Emma Stone Mackinnon. Engaging directly with Koselleck’s suggestion that 1789 generated a new ‘horizon of expectation’, in which revolution was destined to become worldwide and permanent, Mackinnon explores how the leading theorists of the Algerian Revolution adapted the legacy of the French Revolution and the Declaration of the Rights of Man and Citizen, as newly restated in the 1948 Universal Declaration of Human Rights, to their own purposes. In seeking to exploit this legacy, the Algerians had a choice of strategies. They could claim to be fulfilling the promise of 1789, or to be redeeming it from its subsequent betrayal by French colonialism – or, as Frantz Fanon would argue was essential, to re-state it in radically new terms. Even fulfilment of the promise of 1789, however, involved more than simply instantiating rights proclaimed in 1789 and reiterated in 1948. Nor was ‘revolution’ itself a self-sufficient concept, the key to a given ‘modernity’. Rather, revolution was articulated in languages of law and politics which offered different ways of framing its relation to Algeria’s past and its contribution to its future. In turn, Mackinnon concludes, these languages led the Algerians, Fanon only the most radical among them, to reframe and seek to transcend modernity itself.113 5

In their range and diversity, the contributions to this volume demonstrate that politics have been thought about in languages which have adopted very different historical perspectives and entertained different conceptions of the temporality in which politics occur. So doing they suggest that there are no simple patterns to the relation between political thinking, time and history: a particular historical perspective may be compatible with more than one temporality. There is not even a clear dividing line between approaches which invoke history and those which aspire to universality; the two have often been combined. Moreover, the six chosen historical and temporal perspectives – the legal, the sacred, the contingent, the social, the revolutionary, and the global – are not exhaustive. Among others needing further examination are two which explicitly address future time, utopianism and the prospects of the anthropocene, in particular the issues raised by rapidly accelerating climate change.114 Beyond Europe, in non-Western political cultures, there has been a

112 113 114

Samuel Moyn, ‘On the nonglobalization of ideas’, in Moyn and Sartori, eds., Global Intellectual History, 187–204. Emma Stone Mackinnon, ‘The Right to Rebel’, in this volume, Chapter 13. Katrina Forrester and Sophie Smith, eds., Nature, Action and the Future. Political Thought and the Environment (Cambridge, 2018).

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multitude of other historicities and temporalities whose study this volume could not undertake but hopes to provoke. Even within Europe, many more ways of framing the relation between political thought, time, and history might be identified under the heads considered here. In displaying the plurality of political languages, and the multiple ways in which political thought has engaged with history and understood temporality, the volume suggests that the politics of time and history are much richer than has been allowed by either historians preoccupied with ‘modernity’ or political theorists for whom history is simply out there as a reality check. But demonstrating multiplicity and complexity is the easy part for the historian. On its own, it should not satisfy historians of political thought for whom the languages which are the subject of their study are always both the construction of their authors and a reconstruction by the historian – a dialogue between past and present understandings of what terms meant, how arguments worked, and what purposes they were to serve. Since reconstruction involves understanding, hence interpretation, on the part of the historian, what the history of political thought conveys in its narratives is never simply a record of fact, but itself an argument within and on the language(s) chosen for study. As a result, no language of the past, however remote it seems from those currently in use, is ever wholly redundant, without connection or resonance in the present. Because it requires the historian’s participation to reconstruct, it is still current. For this reason, the historian of political thought can never avoid the question of pay-off: what follows from identifying and drawing out the multiple ways in which time, history, and political thought have worked with each other? In the first instance, multiplicity suggests that it is unwise to take Koselleck’s association of specific concepts of time and history with ‘modernity’ as a ‘given’ of historical investigation. ‘Modernity’ itself is not a concept on which there is any consensus, either on what it refers to or on its value. The reference points of Koselleck’s concept of modernity, the French and Industrial Revolutions, may on the face of it be conventional, but Koselleck held them responsible for outcomes, permanent revolution and the mechanised slaughter the World Wars and the Holocaust, which made of modernity a catastrophe, with no positive moral value whatever. This is almost certainly not the ‘modernity’ that many who have taken over Koselleck’s propositions about time and history since 1750 have in mind; but it is far from clear that his propositions are compatible with a different, better modernity. Contributions to this volume, especially those of Meckstroth and Mackinnon, show that the French Revolution did indeed stimulate new conceptions of political temporality, and of history as delivering a future; but they also show how these conceptions crossed with others, and, for the Algerians, required radical redevelopment. Meanwhile other temporalities, other historical perspectives, have remained very much in play in political thinking in the modern period. Whatever ‘modernity’ may be, humans have never limited themselves to one political temporality, one conception of history.

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Multiplicity suggests a similar caution over ‘realism’ – however attractive it is for political theorists and commentators to have a simple means of debunking the illusions of power, or puncturing misplaced confidence in the rectitude of a cause. For to cast history in the role of delivering a ‘reality’ against which arguments and preconceptions can be tested is to deny the way that different approaches to politics have constructed the reality facing them, often by placing it within a historical narrative and associating it with a particular experience of time. Historians of political thought may, by casting their documentary net wider, reconstruct other ‘facts’ which were invisible to or ignored by past thinkers and go unremarked in their narratives. But this does not make the historian the privileged arbiter of what ‘reality’ was. The constant interplay of past construction and historian’s reconstruction entails that reality lies within that interplay, not outside of it, while the sheer variety of historical perspectives within which politics have been understood only underlines the incoherence of appealing to history against politics. Faced with the multiplicity of ways in which politics have been understood, historically and temporally, the historian and the theorist may indeed react differently. The theorist is more likely to choose one approach, one language, over another, explicitly rendering it normative. The historian may want to stop at the point of choice, suggesting that a particular approach has been – and through the act of reconstruction still is – a possible way of thinking politically, even if it is currently disregarded. Given that any historical narrative implies the possibility of others, the historian is further likely to want the theorist to recognise the contingency of all forms of political argument, whether these be framed universally or historically. But since contingency only reinforces the need for choice, the historian of political thought is still working on the same spectrum as the theorist, reconstructing and distinguishing between the varied ways in which we have learned to think politically, so many of which depend on time and history.

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1 Out of Time? Eternity, Christology, and Justinianic Law Caroline Humfress

1 INTRODUCTION Time may seem to be about nature, but ‘nature’ is also profoundly imbricated in Western states’ self-legitimating claims in relation to the need for law and social control. Time may seem to be about death, but in the West, ‘death’ is also part of the hermeneutics of the state, which claims the monopoly over legitimate ­violence – death being the West’s master metaphor of power and control.1

In her 1996 monograph A Moment’s Notice. Time Politics across Cultures, the a­nthropologist Carol Greenhouse examines the ways in which ‘particular t­emporalizations shaped large-scale legal systems, including Western law’.2 Greenhouse argues that time and power have a specific proximity in the West, as a result of what she terms the hegemony of linear time: ‘Since the middle ages, linear time has been the time of the nation-state, although its modes of rationalization (as technology and social control) vary with time and place.’3 More specifically, the linear time of the (Western) nation-state has been dominated by a specific, Christian, idea of sacred time: a sacred time that has its origin in the creation narrative of the Book of Genesis and its endpoint before a final day of judgement as foretold in the Book of Revelation.4 The ‘core image of temporality in the West’, Greenhouse argues, is thus ‘a theological image that gives eternity to God and time to human society’.5 Greenhouse’s analysis of ‘time politics across cultures’ is underpinned by an anthropological approach to comparative temporalizations across space and time. 1 2

3

4 5

Carol Greenhouse, A Moment’s Notice. Time Politics across Cultures (Ithaca, NY, 1996), 49. Mariana Valverde, ‘“Time Thickens, Takes on Flesh”. Spatiotemporal dynamics in Law’, in I. Braverman, N. Blomley, D. Delaney, and A. Kedar, eds., The Expanding Spaces of Law. A Timely Legal Geography (Stanford, 2014), 53–76 at 61. Greenhouse, A Moment’s Notice, 179 and 15. Although Greenhouse refers specifically to the ‘nationstate’, a state form uncommon in Europe before the nineteenth century, the observation of the hegemony of linear time in Western political thinking is more generally valid. Greenhouse, A Moment’s Notice, 20. Greenhouse, A Moment’s Notice, 19.

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Her ‘core [theological] image of temporality in the West’ can indeed be found throughout the historical Western canon. According to the historian François Hartog, the history of Western time itself ‘emerges and departs’ from ‘the Christian regime of historicity’.6 For the English philosopher and political theorist Michael Oakeshott, moreover, politics and eternity are timelessly – universally – connected: To establish the connections, in principle and in detail, directly or mediately, between politics and eternity is a project that has never been without its followers. Indeed, the pursuit of this project is only a special arrangement of the whole intellectual life of our civilization; it is the whole intellectual history organized and exhibited from a particular angle of vision. Probably there has been no theory of the nature of the world, of the activity of man, of the destiny of mankind, no theology or cosmology, perhaps even no metaphysics, that has not sought a reflection of itself in the mirror of political philosophy; certainly there has been no fully considered politics that has not looked for its reflection in eternity.7

As for Oakeshott, so for Western political philosophy in general: ‘the universal reality of linear time is the presumptive basis for theorizing’.8 Hence, as Greenhouse argues in the opening quotation above, the West’s core image of time also creates a specific ‘hermeneutics of the state’: a (seemingly) natural reality in which the eternal (nation-) state – standing in for God – claims a monopoly over the human temporalities of politics and law.9 In this chapter I argue for a complementary and yet contrasting core image of temporality, anchored not in ‘the West’ but in what a late antique historian would term ‘the East’ (what would later come to be referred to as the Byzantine Empire).10 I am going to focus on the law-books promulgated by the sixth-century Eastern Roman Emperor Justinian (sole emperor from August 527 ce to November 565 ce): first, the Codex, a compilation of imperial constitutions first promulgated 6 7

8 9

10

François Hartog, ‘Chronos, Kairos, Krisis: the genesis of western time’, History and Theory, 60.3 (2021), 425–39, 433. Michael Oakeshott, Hobbes on Civil Association (Indianapolis, 1975), 5 (lightly revised from Michael Oakeshott, ed., The Leviathan of Thomas Hobbes (Oxford, 1946), xi–xii). For further discussion on Oakeshott, politics and the ‘mirror of eternity’ see Francis Oakley, Politics and Eternity. Studies in the History of Medieval and Early-Modern Political Thought (Leiden, 1999), 333–41. Compare Dan Edelstein, Stefanos Geroulanos, and Natasha Wheatley, ‘Chronocenosis: An Introduction to Power and Time’, in Dan Edelstein, Stefanos Geroulanos and Natasha Wheatley, eds., Power and Time: Temporalities in Conflict and the Making of History (Chicago and London, 2020), 1–50, 8: ‘Every established political regime, every sovereign, pursues continuity–often even eternity–and to do so negotiates its relationships with other established forms of time: religious, labor, economic, natural, legal, political.’ Greenhouse, A Moment’s Notice, 49. Ibid., (quoted text is from the paragraph given above). See further Peter Fitzpatrick, The Mythology of Modern Law (London, 1992) and ‘Still not being modern: law and the insistence of myth’, Australian Feminist Law Journal, 43:2 (2017), 231–50. On ‘Byzantine’ history, see Cyril Mango, ‘Introduction’ in Cyril Mango, ed., The Oxford History of Byzantium (Oxford, 2002), 1–18.

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on 7  April 529, with a second edition issued on 16 November 534; second, the Institutes, announced in a constitution dated 21 November 533 and addressed to the cupida legum iuventus (‘young enthusiasts for the law’, first year law students); and third, the Digest or Pandects – from Greek meaning ‘all-encompassing’ – a systematic collection of writings from Roman jurists begun in 530 and promulgated on 16 December 533. Collectively known from the late sixteenth century onwards as the Corpus Iuris Civilis, these Justinianic law-books underpin the development of Western legal and political thought – and practice – during both the medieval and modern eras. As I shall argue, however, a specific kind of Christian temporality – an idea of ‘eternity’ as an everlasting existence, refined by the Christological debates of the late Roman East – shaped the Emperor Justinian’s idea of lawmaking, as well as his claims for the temporal authority of law itself. Section 2 below analyses the seven constitutions promulgated by Justinian between 528 and 534 that are directly related to the compilation of the Codex, Institutes and Digest, with a particular focus on the Justinianic claim that these books would be ‘valid for all eternity’. Section 3 surveys time, eternity and law in relation to specific sixth-century Christological debates, linking Eastern trinitarian theology to a specific way of framing and justifying the exercise of legal and political power.11 Finally, Section 4 draws out the contrast between two ‘master metaphor(s) of power and control’ (to borrow Carol Greenhouse’s phrase), one associated with the Byzantine East and one with the medieval West. The fact that East and West developed different understandings of the relations between eternity and time – principle and history – serves to underscore the distinctiveness and peculiarity of the (modern, liberal) West’s legal and political hermeneutic. 2  ‘THIS [CODEX], WHICH WILL ENDURE FOR ETERNITY…’ 12

Between 528 and 534 seven imperial constitutions relating to the compilation of the Codex, Digest and Institutes were promulgated on Justinian’s authority: Const. Haec, issued on 13 February 528 and addressed to the Constantinopolitan Senate, which set up the commission for the first edition of the Codex; Const. Summa, given on 7 April 529 and addressed to Menas the Praetorian Prefect, conveying instructions for the copying and distribution of the first edition of the Codex; 11

12

Simon Corcoran, ‘The Codex of Justinian: the life of a text through 1,500 years’, in W. Bruce et al., eds., The Codex of Justinian. A New Annotated Translation with Parallel Latin and Greek Text. Volume 1: Introductory Matter and Books I–III (Cambridge, 2016), xcvii–xcviii notes that ‘Christian unity’ – specifically the reconciliation of ‘Chalcedonians and non-Chalcedonians’ – was the ­second of three great projects that marked Justinian’s long reign – the third being the law. Corcoran o­ utlines Justinian’s codification project, based on the details given in the seven imperial constitutions relating to the compilation of the Codex, Digest and Institutes (pages xcviii–ci), but does not relate Justinian’s second project (the reconciliation of Chalcedonians and non-Chalcedonians) to his third (‘the law’). Const. Summa, Section 3 (trans. Frier, Codex, 9).

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Const. Deo Auctore, given on 15 December 530 and addressed to the Quaestor Tribonian, which set up the Digest commission; Const. Imperatoriam, given on 21 November 533 and addressed to ‘young enthusiasts for the law’ (first year law students), declaring the completion of the Institutes; Const. Omnem, given on 16 December 533 and addressed to professors of law, announcing the completion and exclusive validity of the Codex, Institutes and Digest and introducing reforms to legal education; Const. Tanta / Dedoken, also given on 16 December 533, addressed to the (Constantinopolitan) ‘Senate and all peoples’, detailing the ‘gifts of heaven’ – including the completion of the Institutes and Digest – showered on Justinian’s third Consulship;13 and Const. Cordi, given on 16 November 534 and addressed to the Senate of the City of Constantinople (as stated in its Section 6), promulgating the second edition of the Codex: the Codex repetitae praelectionis.14 Before he had begun this programme of compilation of the law-books, one of Justinian’s first acts on becoming sole emperor in August 527 had been to issue a confession of the Christian faith, in Greek, in the form of an imperial edict: Believing, therefore, in the Father, the Son and the Holy Spirit, We worship one substance in three persons, one deity and one power, a consubstantial Trinity. We confess the Only Begotten Son of God, God of God, begotten of the Father before the ages and without time, co-eternal with the Father, from whom and through whom all things were made; who in the last days descended from Heaven and was made flesh through the Holy Spirit and Mary, the Holy, Glorious, Ever-Virgin Mother of God; became man and suffered on the cross, was buried and rose again on the third day. We recognise the miracles and sufferings of this one and the same, consubstantial with the Father according to his divine nature, and consubstantial with us according to His human nature. For the Trinity remained a Trinity even as one member of the Trinity of God the Word became flesh; for the Holy Trinity does not admit of a fourth person.15 13

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Const. Tanta / Dedoken, Section 23, trans. (modified), Alan Watson et al., eds., The Digest of Justinian. Volume 1 (Philadelphia, 1985), lxiii–lxiv: ‘In hastening to promulgate these laws in our third consulship we have done well, since the hand of the greatest God and of our Lord Jesus Christ has made that consulship the most fortunate of all for our res publica; during its course the Parthian wars were concluded and consigned to perpetual rest; the third part of the world was annexed to us (for after Europe and Asia, the whole of Libya too was added to our empire); and now that the capstone of the law has been placed on this work, all the gifts of heaven have been showered on our third consulship’. This constitution was issued in both Latin (‘Tanta’) and Greek (‘Dedoken’), with the Latin version included in the second edition of Justinian’s Codex at 1.17.2. Const. Haec, parallel Latin text (Paul Krüger) and English translation in Frier, Codex, 2–5; Const. Summa, parallel Latin text and English translation in Frier, Codex, 4–9; Const. Deo auctore, parallel Latin text (Theodore Mommsen and Paul Krüger) and English translation in Watson, Digest, xlvi–xlix; Const. Imperatoriam, parallel Latin text (Krüger) and English translation in Peter Birks and Grant McLeod, eds., Justinian’s Institutes (London: Duckworth, 1987), 32–3; Const. Omnem, parallel Latin text and English translation in Watson, Digest, l–lv; Const. Tanta / Dedoken, parallel Latin text and English translation / parallel Greek text and English translation in Watson, Digest, lv–lxiv; and Const. Cordi, parallel Latin text and English translation in Frier, Codex, 10–13. Justinian, Codex repetitae praelectionis (hereafter CI) 1.1.5, 1 and 2 (trans. Frier, Codex, 19 and 21).

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This carefully worded formula was intended to embrace a spectrum of supporters and opponents of the credal statement agreed by the 451 Council of Chalcedon, at the same time as upholding the anathemas against the heresy of Nestorius pronounced by the Council of Ephesus in 431 and the Council of Chalcedon in 451. Justinian’s 527 constitution also restates the Chalcedonian anathema against Eutyches ‘… the deranged … who denies the true incarnation…’, and the anathema against Apollinarius – ‘the destroyer of souls, who claims that Our Lord Jesus Christ, the Son of God and Our God, did not have a mind, and who introduces confusion or rather chaos to the incarnation of the Only Begotten Son of God’ – in addition to anathematizing (and criminalizing) their followers.16 The edict made it clear that for Justinian the security and prosperity of his empire depended on propitiating the Supreme Godhead. Hence each of Justinian’s seven constitutions relating to the compilation of the Codex, Digest and Institutes – issued between 528 and 534 – refer to the involvement of the Christian God in Justinian’s law-making and governance in a number of precise, mutually reinforcing, ways. According to the preamble of the 528 constitution which first announced Justinian’s Codex project to the Constantinopolitan Senate, many past emperors had known that the imperial constitutions were in urgent need of correction but none had attempted to bring such a project to completion; Justinian, however, was determined to provide for the common good ‘with the help of Almighty God’.17 The help and favour of the Christian God, however, could not be taken for granted. As the preamble to the 529 constitution which promulgated the first Codex states, arms and laws have made the fortunate Roman race pre-eminent above all peoples in the past – but this situation will only endure eternally through ‘God’s favour’ (… quam deo propitio in aeturnum efficiet).18 As Section 1 explains, Justinian, ‘by God’s grace’ (beneficium deo), has thus earnestly devoted himself to providing the universal benefit that is his (first) Codex compilation. The omnipotent God, in turn, ‘has granted his support to Our zealous undertaking on behalf of the State …’.19 The 530 Constitution Deo auctore, probably drafted by Justinian’s top-ranking legal official Tribonian (and, if so, addressed to himself), further develops this idea of the Christian God’s direct involvement in Justinian’s law-making activities. 16 17

18

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CI, 1.1.5, Section 3 (trans. Frier, Codex, 21). See also CI, 1.5.18 pr, probably issued in 529 (trans. Frier, Codex, 211). Const. Haec pr. (trans. Frier, Codex, 3). For further references to the triune Christian God’s favour and help see Const. Deo auctore pr and Sections 2, 5, 10 and 14 (trans. Watson et al., Digest, xlvi–xlix); Const. Tanta / Dedoken pr. and Sections 1, 6b and 12 (trans. Watson et al., Digest, lvi, lvii and lx); and Const. Imperatoriam, Sections 1 and 3 (Birks and McLeod, Institutes, 33). Const. Summa pr. (trans. Frier, Codex, 4). Compare Const. Deo auctore, 10 (trans. Watson et al., Digest, xlviii) which states that the city of Constantinople was founded on the best auguries ‘with the favour of God’. Const. Summa Section 2 (trans. Frier, Codex, 7): Et nostro studio pro re publica instituto suum praesidium deus omnipotens adnuit …

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According to the first sentence of Const. Deo auctore, Justinian’s empire was delivered to him by the heavenly majesty and he governs it ‘under the authority of God’. The preamble of Const. Deo auctore continues: We so lift up our souls [animi] toward the help of the omnipotent God that we do not place our trust in weapons or our soldiers or our military leaders or our own talents, but we rest all our hopes in the providence of the Supreme Trinity alone, from whence the elements of the whole world proceeded and [from whence] their disposition throughout the whole world was derived.20

The hope implied here is that the Supreme Trinity which ordered the elements of the cosmos will also guide the ordering of the elements of the Digest (the allencompassing – ‘pandect’ – text). Section 2 of Const. Deo auctore explains that the task of attaining to a ‘completely full revision of the law’ – collecting and amending the whole set of Roman ordinances and compiling the Digest from the diverse books of so many (juristic) authors seemed difficult, if not impossible: ‘Nevertheless, with our hands stretched up to heaven, and imploring eternal aid, we stored up this task too in our mind, relying upon God, who in the magnitude of his goodness is able to sanction and to consummate achievements that are utterly beyond hope’.21 Section 5, moreover, links Justinian’s anticipation of God’s ‘eternal aid’ to the material form that the Digest itself should take: ‘Since this material will have been composed by the supreme indulgence of the Deity, it is necessary to set it out in a most handsome work, consecrating as it were a fitting and most holy temple of justice …’.22 Section 12 specifies that the Digest is to be composed by Tribonian ‘with God’s approval’; while the final Section 14 instructs Tribonian and his commissioners to strive ‘with the favour of God’ to complete their task as speedily as possible, ‘… in order that the complete work, divided into fifty books, may be offered to us in complete and eternal memory of the undertaking, and as a proof of the providence of the Almighty God and for the glory of our rule and of your service.’23 The completion of the 20

21

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Const. Deo auctore, pr. (trans., slightly modified, Watson et al., Digest, xlvi): et ita nostros animos ad dei omnipotentis erigimus adiutorium, ut neque armis confidamus neque nostris militibus neque bellorum ducibus vel nostro ingenio, sed omnem spem ad solam referamus summae providentiam trinitatis: unde et mundi totius elementa processerunt et eorum dispositio in orbem terrarum producta est. Const. Deo auctore, Section 2 (trans. Watson et al., Digest, xlvi): sed manibus ad caelum erectis et aeterno auxilio invocato eam quoque curam nostris reposvimus animis, deo freti, qui et res penitus desperatas donare et consummare suae virtutis magnitudine potest. Const. Deo auctore, Section 5 (trans. Watson et al., Digest, xlvii): cumque haec materia summa numinis liberalite collecta fuerit, oportet eam pulcherrimo opere extruere et quasi proprium et sanctissimum templum iustitiae consecrare …. The text goes on to specify that the Digest material must be ordered into fifty books, under distinct titles – with further detailed instructions. Const. Deo auctore, Section 14 (trans. Watson et al., Digest, xlix): Haec igitur omnia deo placido facere tua prudentia una cum aliis facundissimis viris studeat et tam suptili quam celerrimo fini tradere, ut codex consummatus et in quinquaginta libros digestus nobis offeratur in maximam et aeternam rei memoriam deique omnipotentis providentiae argumentum nostrique imperii vestrique ministeri gloriam.

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Digest project, like the promulgation of Justinian’s first Codex, was intended to act as proof of the Christian God’s endorsement of Justinian’s imperial rule. Accordingly, the 16 December 533 edict announcing the completion of the Institutes and the Digest to the Constantinopolitan Senate and to ‘all peoples’ was issued: ‘In nomine Domini Dei Nostri Ihesu Christi …’.24 The text opens with an unequivocal statement of the Christian God’s patronage: ‘So great is the providence of the Divine Humanity toward us that it ever designs to sustain us with acts of eternal generosity.’25 The 533 preamble then looks back to Section 2 of Const. Deo auctore, issued almost exactly three years earlier, again stating that the task of reducing all of Roman jurisprudence to ‘… a single harmonious whole so that nothing should be found in it which was contradictory or identical or repetitious, and that two different laws on a particular matter should nowhere appear’ was a task that was appropriate for heavenly providence, but not for human weakness: ‘We therefore, in our accustomed manner, have resorted to the aid of the Immortal one and, invoking the Supreme Deity, have desired that God should become the author and patron of the whole work.’26 Justinian himself is said to have investigated and scrutinized the drafting done by his legal commissioners and ‘in reliance on the holy divinity’ amended anything that he found dubious or uncertain. The preamble to Const. Tanta / Dedoken closes with the statement: ‘Everything was completed, therefore, our Lord and God Jesus Christ vouchsafing the capacity to us and to our subordinates in the task.’27 Section 1 of the text goes on to state that Justinian’s initial commands to Tribonian had also been accomplished by the ‘inspiration of heaven and the favour of the Supreme Trinity’. The same idea of the Christian Godhead’s direct involvement underpins Justinian’s instructions to the law professors in Const. Omnem (issued on the same day as Const. Tanta / Dedoken): they are ‘… to hand on legal learning to students, under the direction of God …’, so that the students become ‘the best servants of 24

25

26

27

Const. Tanta / Dedoken (trans. Watson et al., Digest, lv). Compare Const. Imperatoriam (Birks and McLeod, Institutes, 33), announcing the completion of the Institutes to first year law students and Const. Cordi (trans. Frier, Codex, 10), announcing the completion of the second Codex to the Constantinopolitan Senate – both issued In nomine Domini Nostri Ihesu Christi. … On the subtle addition of deus to the Const. Tanta / Dedoken incipit see below. Const. Tanta / Dedoken, pr. (trans. Watson et al., Digest, lv): Tanta circa nos divinae humanitatis est providentia, ut semper aeternis liberalitatibus nos sustentare dignetur. The acts of eternal generosity are specified here as the ‘eternal peace’ concluded with Parthia (Sasanian Persia); the subjugation of the Vandal nation and the return of Libya to the Roman Empire; and Justinian’s revision of the ‘ancient laws’. Compare Const. Tanta / Dedoken Section 23, on the felicity of Justinian’s third consulship (Footnote 13 in this chapter). Const. Tanta / Dedoken, pr. (trans. Watson et al., Digest, lv): namque hoc caelestis quidem providentiae peculiare fuit, humanae vero inbecillitati nullo modo possibile. Nos itaque more solito ad immortalitatis respeximus praesidium, et summo numine invocato deum auctorem et totius operis praesulem fieri optavimus. Const. Tanta / Dedoken, pr. (trans. Watson et al., Digest, lv–lvi): omnia igitur confecta sunt domino et deo nostro Ihesu Christo possibilitatem tam nobis quam nostris in hoc satellitibus praestante.

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justice and of the state’, while the greatest honour will accrue to the professors themselves ‘for all ages to come’.28 Section 12 of Const. Tanta / Dedoken gives abundant thanks to the Supreme Deity, as the best laws have been given not merely for Justinian’s own age, but for all time – present and future. As Section 19 states, the age of Justinian has been judged by God to be more deserving than all preceding ages: ‘Now, therefore, since you know all this, conscript fathers [i.e., the senators] and all men in the whole world, give the fullest thanks to the Supreme Divinity, who has reserved so greatly beneficial a work for your times. For your times indeed there has been vouchsafed that which the men of old times were not held by the divine judgment to be worthy.’29 Justinian’s law-books, unlike the laws from previous ages, were to have everlasting validity. As Section 3 of the 529 Const. Summa – the constitution that enacted the first Justinianic Codex – states: ‘This [Codex] will endure forever…’30 According to the preamble to the 533 Const. Omnem, Justinian’s intention was that the (first edition) Codex, Institutes and Digest would ‘endure forever’; while Section 23 of Const. Tanta / Dedoken states that Justinian’s laws, as laid out in the Institutes and Digest are ‘valid for all ages’. Justinian’s law-books do not have eternal validity simply on account of imperial fiat, but rather – as is repeatedly stressed in all seven of the imperial constitutions relating to the compilation of Justinian’s Codex, Digest and Institutes – because they have been compiled with the direct involvement of the Christian Godhead. The fact that everything in the Digest is to endure forever, in total concord, total consistency with no contradiction between texts (Const. Deo auctore, Section 8) is a consequence of the Digest having been authored by the eternal, Christian, God.31 A similar idea of eternity moving through time and human institutions can be seen in a Greek constitution given on 12 September 534, 28

29

30 31

Const. Omnem, Section 11 (trans. Watson et al., Digest, liv): Incipe igitur legum doctrinam eis dei gubernatione tradere et viam aperire quam nos invenimus, quatenus fiant optimi iustitiae et rei publicae ministri et vos maximum decus in omne saeculum sequatur. Compare Const. Omnem, Section 9 (trans. Watson et al., Digest, liv) which states that ‘… it is proper for men’s souls [animi] to be educated first, and then their tongues [linguae].’ Const. Tanta / Dedoken, Section 19 (trans. Watson et al., Digest, lv–lvi): Haec igitur omnia scientes, patres conscripti et omnes orbis terrarum homines, gratias quidem amplissimas agite summae divinitati, quae vestris temporibus tam saluberrimum opus servavit: quo enim antiquitas digna divino non est visa iudicio, hoc vestris temporibus indultum est. There may be an echo here of a neo-platonic idea concerning the salvific potential of political science, as expressed in the Justinianic Dialogue on Political Science, 5.193–4 (trans. Peter Bell, Three Political Voices from the Age of Justinian. Agapetus, ‘Advice to the Emperor’; Dialogue on Political Science; Paul the Silentiary, ‘Description of Hagia Sophia’ (Liverpool, 2009), 123–88 at 183): ‘[Menas:] So, Thomas, shall we form an opinion something like this about political science? How God, in his great goodness, took thought for the far settlement of the race of men that he had ordained after sending them from their country on high as colonists to this place in the universe? He devised a divine method for the sake of the good order of those who are here – I mean political knowledge – by means of which, through the ordained revolutions of time, they could recover their mother-city above, which is worthy of the immortal state.’ Const. Summa, Section 3 (trans. Frier, Codex, 9): Hunc igitur, in aeternum valiturum … On God as the author of the Digest, see Const. Deo auctore, pr. (cited at Footnote 20 in this chapter).

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addressed to John Praetorian Prefect, which orders that gifts and legacies granted to Christian churches and congregations shall remain in perpetuity: For to every man there is one course of life given him by his maker, the end of which is always death: but it is impossible to set an end to the holy houses and congregations, unending under the protection of God, even with respect to their possessions. As long as the holy houses endure (and they will endure for all time and till the end of ages, as long as the name of Christians is among men and adored), then righteously shall also the fortunes or revenues, bequeathed to them forever, remain undying, ever serving unceasing pious undertakings.32

The numerous and repeated claims analyzed above concerning divine involvement in Justinianic law-making and governance thus need to be understood as more than (self-justificatory) imperial rhetoric. Justinian’s law-books derive their eternal validity from a specific Christian hermeneutic – a hermeneutic that goes beyond the ‘hegemony of linear time’. 3  ‘ONE OF THE TRINITY SUFFERED IN THE FLESH’ 33

I draw back now from Justinian’s law-books in order to think more broadly about time and eternity in relation to Christian theology, before anchoring the analysis within the specific Christological debates that took place at Constantinople, probably in Spring 532, under Justinian’s orders.34 As we shall see, the c. 532 ‘conversations with the Syrian Orthodox’, as they came to be known, formed part of Justinian’s ongoing attempts to reconcile those who accepted the outcomes of the Council of Chalcedon (451) with those who did not.35 My argument is that the specific debates over Christology that took place in the early 530s – as detailed in texts relating to the c. 532 ‘conversations with the Syrian Orthodox’ – can be seen at work in Justinian’s 32 33

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CI, 3.55.3 (trans. Frier, Codex, 147). On the formula ‘One of the Trinity suffered (in flesh)’ and its various versions deployed throughout the East, by both Chalcedonians and non-Chalcedonians, from the late fifth century onwards see Volker Menze, Justinian and the Making of the Syrian Orthodox Church (Oxford, 2008), 172–5. The formula is implied in a number of Justinian’s constitutions from the early 530s (all issued in Greek): CI, 1.1.5 (Justinian, 527?), especially Sections 1 and 2; CI, 1.1.6 (addressed to the people of Constantinople, given 15 March 533), especially Sections 5–7; CI, 1.1.7 (addressed to Epiphanius, the Patriarch of Constantinople), especially Sections 4, 6, 7, and 10; and CI, 1.1.8, 7–24 (a letter from Justinian addressed to John the Bishop of Rome and dated 6 June 533, copied within the reply, dated 25 March 534, which John eventually sent back to Justinian), especially Sections 12, 14, 15 and 18. For the dating of the ‘Conversations with the Syrian Orthodox’ see Sebastian Brock, ‘The Conversations with the Syrian Orthodox under Justinian (532)’, Orientalia Christiana Periodica, 47 (1981), 87–121 (reprinted in Sebastian Brock, Studies in Syriac Christianity (Aldershot, 1992), Chapter 13), 87; and Geoffrey Greatrex, Robert Phenix, and Cornelia Horn, The Chronicle of Pseudo-Zachariah Rhetor. Church and War in Late Antiquity (Liverpool, 2011), 353 at Footnote 220. On the Council of Chalcedon see Patrick Gray, ‘The legacy of Chalcedon: Christological problems and their significance’, in M. Maas, ed., The Cambridge Companion to the Age of Justinian (Cambridge, 2005), 215–38.

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law-books, beyond the handful of imperial constitutions included in Book 1 of the 534 Codex which were issued in direct response to those Christological debates themselves.36 More specifically, I will argue that reactions to the 532 ‘conversations with the Syrian Orthodox’ contributed to a particular imperial framing of time, eternity and Christology – which, in turn, influenced the drafting of the imperial constitutions Imperatoriam (21 November 533, addressed to first year law students); Omnem (16 December 533, addressed to law professors); and especially the publicfacing Const. Tanta / Dedoken (16 December 533, addressed to ‘the Senate and all peoples’ and promulgated simultaneously in Greek and Latin). Late antique Christian theologians understood the Latin term aeturnus and the Greek terms αἰώνιος / ἀΐδιος in two distinct senses.37 First, as a-temporal existence: a timeless existence without duration, an existence literally ‘outside time’. This is the concept of eternity that later became dominant in medieval Western Europe and would be identified as the divine nunc-stans.38 The second understanding of eternity: eternity as an everlasting existence, a ‘duration through all times’, was developed by theologians in the late antique East. More precisely, this second understanding of eternity was refined within the context of the major Christological disputes that arose in the aftermath of the 451 Council of Chalcedon, especially via works attributed to (Ps-) Dionysius the Areopagite (late fifth/early sixth centuries) and later commentators on the Corpus Dionysiacum – including John of Scythopolis, ‘an ardent defender of Chalcedon whose career spanned roughly the first half of the sixth century’.39 In Eastern Christian writings from the early sixth-century onwards, ‘… God is eternal by Himself being Eternity, rather than by participating in eternity as do creatures. In fact, it would be fair to say that the assumption that creatures do 36

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CI, 1.1.5–1.1.8 (trans. Frier, Codex, 18–41). See also CI, 1.5.18 (trans. Frier, Codex, 210–17). For Justinian’s later involvement with ongoing christological disputes in the 540s and 550s see Kenneth P. Wesche, On the Person of Christ. The Christology of Emperor Justinian (New York: St Vladimir’s Seminary Press, 1991) and Richard Price, ‘The development of a Chalcedonian identity in Byzantium (451–3)’, Church History and Religious Culture, 89.1–3 (2009), 307–25, esp. 316–17. As David Bradshaw, ‘Time and eternity in the Greek Fathers’ The Thomist, 70 (2006), 311–66 at 315, notes, by the early sixth century (neo-)platonist philosophers employed two, distinct, technical terms: αἰώνιος to denote the ‘timelessly eternal’ and ἀΐδιος to denote ‘everlasting through time’. Late antique Christian theologians discuss both concepts of eternity, but do not generally adopt the convention of using different technical terms to distinguish between the two. See also Ilaria Ramelli and David Konstan, Terms for Eternity: αἰώνιος and ἀΐδιος in Classical and Christian Texts (New Jersey: Gorgias Press, 2007). On this Augustinian concept of time and eternity, see Thomas L. Humphries, ‘Distentio Animi: Praesens temporis, imago aeternitatis’, Augustinian Studies, 40(1) (2009), 75–101. This is the concept of eternity that Hartog ‘Chronos, Kairos, Krisis’, 436, identifies wholesale with Christianity: ‘Becoming Christian is learning to live in two incommensurable temporalities – in the eternity of God, which is, by definition, off limits, unquestionable, and unrepresentable, and in ordinary Chronos time. To forge a connection between them, Christians turned Jesus into the Messiah – that is, the mediator, the Kairos’. Bradshaw, ‘Time and eternity’, 327. On (Ps-) Dionysius the Areopagite see Ramelli and Konstan, Terms for Eternity, 218–22 and more generally, Andrew Louth, Denys the Areopagite (London, 1989).

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participate in divine eternity is an axiom that determines much of the rest of their thought’.40 In the main (medieval) Western tradition, on the other hand, ‘Eternity is posited as one way of being, time as another, and the question then is how the two, being so different, could possibly overlap or intersect’.41 In the Eastern tradition there is thus a strong sense of continuity between time and eternity, whereas in the West the dominant sense is of their separation: ‘Instead of conceptual guidance in understanding divine eternity, the Greek Fathers offer an invitation to a way of life in which time is experienced as an icon of eternity, so that one has, in one’s own experience, a foretaste of the direct participation in divine eternity of the age to come.’42 As I shall argue below, it is this specifically post-Chalcedonian, Eastern, understanding of time and eternity that underpins Justinian’s divinely authored law-books. The presence in the law-books of the Eastern conception of a continuity between time and eternity is more clearly visible in the light of the complex Christological disputes that took place in the aftermath of the 451 Council of Chalcedon over Christ’s incarnation and the co-eternality of the Trinity. Given that Christ was the Word incarnate – as taught by Cyril Patriarch of Alexandria between 412 and 444 – should we then speak of two natures in Christ: human (consubstantial with ‘us’) and divine (consubstantial with the Father)?43 And if Christ was begotten – came to be within time – how could he be co-eternal with the Father? In 518 Justinian’s uncle, the Emperor Justin, made the Chalcedonian position of ‘two natures in Christ’ the cornerstone of imperial religious policy. Justin thereby reconciled the Eastern empire with the Bishop of Rome and the Western churches, but further alienated those non-Chalcedonians within the East who rejected the ‘in two natures’ formula, opening the way for their renewed imperial persecution. Severus Bishop of Antioch from 512, one of the leading non-Chalcedonian bishops to be exiled from his see in 518, had stressed the inseparability of the ‘divine–human’ (‘theandric’) activity of Christ as an argument against Chalcedonian positions: ‘For how will anyone divide the walking upon the water? For to run upon the sea is foreign to human nature, but it is not proper to the divine nature to use bodily feet. Therefore, that action is of the 40 41 42 43

Bradshaw, ‘Time and eternity’, 332. Ibid., 336. Ibid., 338. The networks and factions that arose across the post-Chalcedonian ecclesiastical and monastic landscapes gave rise to a number of specific labelling strategies. ‘Monophysite’ was originally a term of abuse used against those who opposed Chalcedon’s ‘two natures’ formula (hence the modern invention of the supposedly more neutral term, miaphysite, to denote non-Chalcedonians). Those who accepted Chalcedon, on the other hand, were termed ‘dyophysites’ by their opponents. Chalcedonians and non-Chalcedonians alike claimed to be upholders of the teachings of Cyril of Alexandria: ‘… those who accepted Chalcedon did so because they believed that the Definition was faithful to the teaching of Cyril of Alexandria, while those who rejected the Definition did so because they felt that it betrayed his true teaching’ (Andrew Louth, ‘Christology in the East from the Council of Chalcedon to John Damascene’, in Francesca Aran Murphy, ed., The Oxford Handbook of Christology (Oxford, 2015), 139–53, at 140).

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incarnate Word, to whom belongs at the same time divine character and humanity indivisibly.’44 It was perhaps this Severan approach to Christ’s theandric energeia (‘activity’ or ‘operation’) which led Justinian to hope, in the early 530s, that some kind of theological – and ecclesiological – reconciliation between Chalcedonian and non-Chalcedonian positions might be possible. Hence the imperially mandated ‘conversations with the Syrian Orthodox’ of c. 532. According to the anonymous continuator of Zachariah Bishop of Mytilene’s Ecclesiastical History, a group of ‘faithful bishops’ were recalled by imperial command from desert exile to the city of Constantinople, where they gave a ‘deposition concerning their faith to the emperor’.45 Two further sources also written from a (non-Chalcedonian) Syrian Orthodox perspective, together with one pro-Chalcedonian source, place this event within the context of a series of imperially mandated ‘conversations’ between five or more Syrian Orthodox (‘Severan’) bishops and five Chalcedonian bishops which took place at Constantinople, probably over a three-day period in March 532.46 These ‘Conversations with the Syrian Orthodox’ thus probably took place barely two months after the (otherwise not directly related) Nika riots and the ensuing imperial massacre of Constantinopolitan inhabitants.47 According to the Syrian Orthodox account of the 532 proceedings, the (nonChalcedonian) Severan bishops arrived first in Constantinople and met with Justinian twice before the Chalcedonian bishops reached the City.48 At the end of the second preliminary audience, the Severan bishops handed their ‘statement’ (the deposition of faith recorded by Ps-Zachariah Rhetor at Chronicle IX.15) and other documents to Justinian and urged him and his officials to read them. According to 44 45

46

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Severus’ Letter 1 to Sergius quoted from Louth, ‘Christology’, 141. The earliest known references to (Ps-) Dionysius the Areopagite’s writings occur in the work of Severus of Antioch. Ps-Zachariah Rhetor, Chronicle, IX.15, English translation by Greatrex, Chronicle, 345–6. The Syrian Orthodox Bishops’ deposition states that: ‘Your Tranquillity [Justinian] has inclined towards our baseness and has called us to [you] with believing letters …’ (Greatrex, Chronicle, 347), before it goes on to their statement of faith, at one point quoting directly from Ps-Dionysius the Areopagite’s treatise On Divine Names: ‘… he who was from beyond eternity and before all times became in the likeness of our nature, and took [upon himself] temporality, without change or confusion …’ (Greatrex, Chronicle, 351). Ps-Zachariah states that Severus of Antioch had been invited to Constantinople, but chose on this occasion to remain in hiding (Greatrex, Chronicle, 353). Syrian Orthodox source: Harvard MS. syr.22, a fragmentarily preserved Syriac account probably written by the monk John of Aphtonia who also wrote a Life of Severus of Antioch (Brock, ‘The Conversations’, 91–113); a summary version of the same account is given in BL Add. 12,155, fols. 110–11 (Brock, ‘The Conversations’, 113–17). Pro-Chalcedonian source: a letter (in Latin, translated from Greek) sent by Innocentius, Bishop of Maroneia, one of the Chalcedonian bishops present at the 532 conversations, to Thomas, Priest of Thessalonica (Eduard Schwartz, Acta conciliorum oecumenicorum iv.2 (Berlin and Leipzig, 1914), 169–84). See Geoffrey Greatrex, ‘The Nika Riot: a reappraisal’, The Journal of Hellenic Studies, vol. 117, (1997), 60–86. According to contemporary sources, after eight days of rioting Justinian appeared in the imperial box of the Hippodrome – in full imperial regalia – holding out a copy of the Christian gospels. Harvard MS. syr.22, Section 1 (Brock, ‘The Conversations’, 92). Innocentius’ Letter to Thomas, 4 and 5, states that the Chalcedonian bishops also met with Justinian before the official conversation began (Brock, ‘The Conversations’, 118).

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the Syrian Orthodox account, Justinian responded: ‘I will read them when I have time’, but f­orwarded the document containing the ‘statement’ to the Patriarch of Constantinople and to the Chalcedonian bishops on their arrival in Constantinople.49 Justinian then ordered that ‘… the two parties assemble in the hall known as Beth Hormisdas’: the Palace of Hormisdas, to the south-west of the Great Palace where Justinian’s legal commissioners were then at work on the compilation of the Digest.50 We are told that the two sides debated for two days in the presence of Justinian’s appointee ‘Strategius the Patrician’, who was under orders to report back on developments to the emperor. At the end of the first and second days, Justinian apparently received reports on proceedings from the Chalcedonian bishops only – a fact that the Syrian Orthodox bishops complained about without success.51 Justinian may not have attended the first two days proceedings in person, but the debates took place under his orders with an imperial appointee presiding and the emperor was kept informed throughout.52 On the first day of conversations the Syrian Orthodox bishops anathematized Eutyches, before going on to debate the Councils of Ephesus II and Chalcedon, in addition to answering questions concerning the validity of (Syrian Orthodox) ordinations.53 On the second day, their statement of faith was read out and they challenged ‘the opposing bishops’ to find fault with it. The ‘opposing bishops’ (i.e., the Chalcedonians) responded: ‘Tell us if what is in the statement is all you have to find fault with the synod that gathered at Chalcedon?’54 As is clear from the rest of the proceedings recorded for the second day, the disagreements were not limited to doctrine.55 On the third day, still according to the Syrian Orthodox account of proceedings, the two sides met in the presence of Justinian.56 The emperor asked the Syrian Orthodox bishops what they had achieved and they replied that they had ‘… dispelled the opinion which, it seems, some people held of us, that we do not think in an orthodox fashion’.57 Justinian apparently agreed that the Syrian Orthodox bishops were not heretics, but accused them of refusing to be in communion with the Chalcedonian bishops ‘…out of excessive (scruples over) detail…’ and because certain names had been placed on the ecclesiastical diptychs.58 The emperor went on 49 50 51 52 53 54 55 56 57 58

Harvard MS. syr.22, Sections 1 and 2 (Brock, ‘The Conversations’, 92). Harvard MS. syr.22, Section 3 (Brock, ‘The Conversations’, 92) Harvard MS. syr.22, Sections 33–4 (Brock, ‘The Conversations’, 106–8). Innocentius’ Letter to Thomas, 7 and 8, records Strategius’ opening address to the assembled bishops (Brock, ‘The Conversations’, 118). Harvard MS. syr.22, Sections 4–11 (Brock, ‘The Conversations’, 94–6). Harvard MS. syr.22, Section 13 (Brock, ‘The Conversations’, 98). Also Add. 12155, Section 2 (Brock, ‘The Conversations’, 114). Harvard MS. syr.22, Sections 14–33 (Brock, ‘The Conversations’, 98–106). Harvard MS. syr.22, Section 34 (Brock, ‘The Conversations’, 108). Harvard MS. syr.22, Section 35 (Brock, ‘The Conversations’, 108). Justinian’s concession that the Syrian Orthodox were not heretics contradicts the implication made at CI, 1.1.5, 4 (given 527). On the disputes over names recorded on the diptychs and thus included in the liturgical commemorations of specific churches see Menze, Justinian and the Making, 94–101.

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to propose various practical steps for achieving union between the churches, each countered by the Syrian Orthodox bishops themselves.59 The extant text of Harvard MS. syr.22 breaks off after another statement of faith by the Syrian Orthodox: Everyone who confesses the orthodox faith and who, on the other hand, anathematizes alien and foul doctrines; who says that the God the Word was incarnate, and that he suffered for us in his flesh – (flesh) that is by nature subject to suffering and death; (that he suffered) of his own will, (both) sufferings that are natural and not in dispute, and death; (everyone who) distinguishes the time before the cross and that after the resurrection – with such a man we are in communion.60

According to Innocentius’ Letter to Thomas (82–6), day three ended with an insinuation being made to Justinian that the Chalcedonian bishops did not believe that ‘god became flesh’. Innocentius’ Letter ends with an account of a further meeting between Justinian and the Chalcedonian bishops during which the emperor told them that, on the morning of day three, he had gone to the oratory of the archangel Michael and prayed that if this attempt to unify the Church failed, God would place the greater blame on the other side ‘and not on us’.61 As a result of the 532 conversations and possibly subsequent discussions, too, as hinted at by Ps-Zachariah’s Chronicle IX.15, Justinian issued an edict in Greek dated 15 March 533 which was signed by ‘all the bishops and abbots who could be found in Constantinople’ and sent to the cities of Constantinople, Ephesus, Caesarea, Cyzicus, Amida, Trapezus, Jerusalem, Apamea, Iustinianopolis, Theopolis (Antioch), Sebaste, Tarsus, Ankara.62 It was subsequently re-issued in November of the same year, this time including the cities of Alexandria, Thessalonica and Rome.63 This edict, most likely written by Justinian himself according to Tony Honoré, set out the compromise which Justinian wished to impose as the outcome of the discussions. It affirmed the consubstantiality and co-eternality of the Trinity without explicitly mentioning the Council of Chalcedon and also reaffirmed previous condemnations of Nestorius, Eutyches, Apollinarius and followers.64 The edict of 15 March 533 was followed by two imperial letters, again both probably drafted

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Innocentius’ Letter to Thomas, 79–81, praises Justinian speech but does not record it (Brock, ‘The Conversations’, 119). See also Add. 12155, Sections 3–7 (Brock, ‘The Conversations’, 114–17), which includes Justinian’s personal suggestion in Section 7 that the Syrian Orthodox bishops could accept the synod of Chalcedon as far as the anathema against Eutyches was concerned without accepting the definition of faith made there. Harvard MS. Syr.22, Section 46 (Brock, ‘The Conversations’, 110–12). Innocentius’ Letter to Thomas, 88 (Brock, ‘The Conversations’, 120). CI, 1.1.6 (trans. Frier, Codex, 20–4). The signing by bishops (including the Patriarch of Constantinople) and abbots in Constantinople is stated at CI, 1.1.7, 11. Chronicon Paschale, 533 trans. Michael Whitby, Chronicon Paschale 284–628 ad (Liverpool, 1989), 128–9, with Footnote 374. The Chronicon Paschale entry includes the text of Justinian’s edict (Whitby, Chronicon Paschale, 128–30), with some minor divergences from the version at CI, 1.1.6. Tony Honoré, ‘Some constitutions composed by Justinian’, Journal of Roman Studies, 65 (1975), 107–23, at 120. CI, 1.1.6 refers back explicitly to CI, 1.1.5 (527, discussed earlier in this chapter).

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by Justinian in person.65 The first, written in Greek and included in the (second) Justinianic Codex at 1.1.7, is dated 26 March 533 and addressed to Epiphanius the Patriarch of Constantinople. The second, written in Latin and included in the Codex at 1.1.8, 7–39 is dated 6 June 533 and addressed to John the Bishop of Rome.66 Both imperial letters, unlike the general 533 edict, refer explicitly to the 451 Council of Chalcedon.67 Nevertheless, Justinian delivered the same doctrinal message to the cities of the Eastern Empire, to the Patriarch of Constantinople and to the Bishop of Rome alike: one of the Trinity, the divine logos (the Word) had become man for the sake of mankind and had suffered in the flesh. Christ is the bodily incarnation of the eternal Logos of God the Father. He came into existence within time, yet He is immutable, perfect, eternal. If we now return to the compilation of the Codex, Digest and Institutes, we can see that the rhetoric of the imperial constitutions Imperatoriam (given 21 November 533), Omnem and Tanta / Dedoken (both given 16 December 533) was directly influenced by the doctrinal disputes that took place in Constantinople during 532 and 533. First, it is a striking fact that Const. Tanta / Dedoken – a general edict addressed to the Constantinopolitan Senate and all peoples – is issued by Justinian ‘In nomine Domini Dei [my italics] Nostri Ihesu Christi …’.68 Jesus Christ is referred to as Lord and God, as in the opening line of the general edict issued just nine months earlier and included in the (second) Justinianic Codex at CI, 1.1.6: ‘Serving the Saviour and Lord of All, Jesus Christ, Our true God in all things …’.69 These references to Christ as Lord and God were likely intended as gestures towards a nonChalcedonian Christology: the God Christ suffered Crucifixion in the flesh as a single, undivided, entity. Second, the repeated insistence in Omnem, Tanta / Dedoken and Imperatoriam that when Justinian stretched out his arms towards heaven the Supreme Deity heard him and sent direct aid, was most likely a riposte to rumours that were circulating across non-Chalcedonian Eastern networks after the 532/533 ‘conversations’ had failed to achieve a lasting compromise. According to the proChalcedonian source Innocentius of Maronia, Syrian Orthodox bishops were informing their flocks that the Holy Spirit had departed from the Chalcedonian churches and all those in communion with them – which included, of course, Justinian himself and his legal officials.70 Anti-Chalcedonian sentiment was also running high in 65 66

67 68 69 70

Honoré, ‘Some constitutions …’, 116–17 and 120. CI, 1.1.8 (dated 25 March 534) is John Bishop of Rome’s reply to Justinian’s letter dated almost exactly one year previously, which quotes Justinian’s original text. In Section 31 of CI,1.1.8 (trans. Frier, Codex, 39), the Bishop of Rome explains that he has had to deal with a number of monks from the Constantinopolitan monastery of the Acoemetae (‘the sleepless ones’) who had apparently fled to Rome having been accused of Nestorianism after the publication of Justinian’s edict of 15 March 533. CI, 1.1.7, 11, 12 and 15–17 and CI, 1.1.8, 19. The last line of the preamble to the Constitution Tanta / Dedoken also refers to ‘our Lord and God Jesus Christ’. For the contrast with earlier Justinianic constitutions see earlier in this chapter. CI, 1.1.6 pr (trans. Frier, Codex, 21). See earlier in this chapter for discussion. Brock, ‘The Conversations’, 120. The Empress Theodora maintained her patronage of nonChalcedonian monks and clerics throughout the 530s and 540s, up to her death in 548.

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the imperial capital. The Chronicon Paschale records that in November 533 a great earthquake shook Constantinople and all the city gathered throughout the night to chant the litany ‘Holy God, holy and mighty, holy and immortal, who was crucified on our account have mercy on us’; when morning came, the entire people cried out: ‘Victorious is the fortune of the Christians. Crucified one, save us and the city; Augustus Justinian, may you be victorious. Destroy, burn the document issued by the bishops of the Synod of Chalcedon’.71 Third and most importantly, the same relationship between divine and human – eternity and time – that is claimed for Christ in CI, 1.1.6 – 8 (given March and June 533) is also claimed for Justinian’s law-books in Const. Tanta / Dedoken. In the context provided by the late fifth- and early sixth-century Christological disputes – and more specifically the Constantinopolitan ‘Conversations with the Syrian Orthodox’ of Spring 532 / 533 – the rhetoric of Justinian’s law-books takes on an urgent purpose. Issued in the name of Jesus Christ as Lord and God, they were intended to reinforce Justinian’s attempts to secure compromise over Chalcedon within the (Eastern) Church. More fundamentally, they reflect and even embody the idea of eternity in time implied by the understanding of Christ as the bodily incarnation of the Logos of God the father. It is even possible to see this concept of eternity in time as underlying the justification for the imperial authority to declare the law in the future. Having given abundant thanks to the ‘Supreme deity’ for vouchsafing the successful conduct of war, the full enjoyment of peace and the giving of the best laws for all time, ‘present and future’ (Section 12), the Const. Tanta / Dedoken goes on to specify that while the content of the law-books is divinely inspired, immutable and perfect, it is also – at the same time – part of the created, human, order: Now divine things are entirely perfect, but the character of human law is always to ­hasten onward, and there is nothing in it which can abide forever, since nature is eager to produce new forms. We therefore do not cease to expect that matters will henceforth arise that are not secured in legal bonds. Consequently, if any such case arises, let a remedy be sought from the Augustus, since in truth God has set the imperial f­unction over human affairs, so that it should be able, whenever a new contingency arises, to correct and settle it and to subject it to suitable procedures and regulations…72

The drafter of the 533 constitution comes close here to the idea of the emperor himself as a Christlike ‘living law’, a law incarnate (nomos empsychos).73 71 72

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Chronicon Paschale, 533 (trans. Whitby, Chronicon Paschale, 127–8). Const. Tanta / Dedoken, Section 18 (trans. Watson, Digest, lxiii–lxiv): Sed quia divinae quidem res perfectissimae sunt, humani vero iuris condicio semper in infinitum decurrit et nihil est in ea, quod stare perpetuo possit (multas etenim formas edere natura novas deproperat), non desperamus quaedam postea emergi negotia, quae adhuc legum laqueis non sunt innodata. si quid igitur tale contigerit, augustum imploretur remedium, quia ideo imperialem fortunam rebus humanis deus praeposuit, ut possit omnia quae noviter contingunt et emendare et componere et modis et regulis competentibus tradere … The idea of the emperor as an incarnate law, sent down by God, occurs in a 537 Novel of Justinian: ‘But from everything which has been set down by us let the τύχη [fortune] of the emperor be

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The question of how a corporeal object – in this case a book of law – could contain divine truth had, of course, already been asked of Ta Biblia: ‘the Books’ or, in modern idiom, the ‘Bible’. It is worth noting here that a later Justinianic constitution dated 8 February 553 and addressed to the Praetorian Prefect of the East refers explicitly to a late antique, Christian, version of the well-known legend concerning the miraculous creation of the Septuagint – the earliest extant Greek translation of Torah, the first five books of the Hebrew Bible.74 This version of the story tells how – on the orders of Ptolemy Philadelphus (285 bc–247 bc) – seventy translators working in pairs and in different locations all produced the same translation of the laws of the Jews, their choice of words prophesizing Christ through divine inspiration.75 As discussed above, Justinian’s Constitution Deo auctore – which set up the Digest commission – states that the work of reducing Roman jurisprudence to a single and harmonious whole, with no contradiction or repetition, was achieved with the help and inspiration of the Supreme Deity.76 A specific, Christological, logic of a divine and eternal logos incarnated in corporeal form can be seen to underpin the (Christian) narrative of the Septuagint’s compilation and the narrative of the Digest’s compilation alike. 4  CONCLUSION: ‘BUT WHO OR WHAT WEAVES THE TAPESTRY OF TEMPORALITY?’ 77

It is generally agreed that the Eastern tradition embodies a radically different view of time and eternity from that dominant in the West.78 One of the major differences, as we have seen, lies precisely in ‘the sense of continuity between time and eternity in the Eastern tradition, as opposed to their separation in the West’.79 I have argued

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exempted, to which God, by sending it down to mankind as a living embodiment of law, has made even the laws subservient’ (Novel 105.2, 4, trans. modified from David Miller and Peter Sarris, eds. and trans., The Novels of Justinian. A Complete Annotated English Translation. Vol. 2 (Cambridge, 2018), 695). For further discussion see Artur Steinwenter, ‘Nomos Empsychos. Zur Geschichte einer politischen Theorie’, Anzeiger der Akademie der Wissenschaften, Vienna, phil.-hist. Klasse, 83 (1946), 250–68 and Gerhard Aalders, ‘Nóμoς ἔμψνχoς’, in Peter Steinmetz, ed., Politeia und Res Publica. Beiträge zum Verständnis von Politik, Recht und Staat in der Antike. Dem Andenken Rudolf Starks gewidmet (Wiesbaden, 1969), 315–29. Justinian’s Novel 146 (Schoell, R. and Kroll, W., eds., Corpus Iuris Civilis, 3 (Berlin, 1895), 714–18). For detailed discussion, see Nicholas de Lange, ‘Hebraists and Hellenists in the sixth-century synagogue: a new reading of Justinian’s Novel 146’, in Costanza Cordoni and Gerhard Langer, eds., ‘Let the Wise Listen and Add to their Learning’ (Prov 1:5).’ Festschrift for Günter Stemberger on the Occasion of his 75th Birthday (Berlin and Boston, 2016), 217–26. Justinian’s Novel 146.1, pr and Section 1 (Schoell and Kroll, Corpus, 3: 715–16). The modern hunt to detect Justinianic ‘interpolations’ in the Digest – with the aim of restoring the Classical juristic texts to their ‘pristine’ form – involves identifying and excising the very parts of the text which – according to a sixth-century audience – had been inspired by the Supreme Godhead! Ethan Kleinberg, ‘A response to François Hartog, “Chronos, Kairos, Krisis: the genesis of Western time”’, History and Theory, 60.3 (2021), 454–7, at 454. Bradshaw, ‘Time and Eternity’, 2. Ibid., 23.

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that the sense of continuity between time and eternity in the Eastern tradition was underpinned by a specific, sixth-century, Christology – a Christology which can also be seen at work in Justinian’s legal codification project. I think that we can push this further and claim that the same sense of continuity between time and eternity underlies what later Western scholars would (somewhat misleadingly) refer to as ‘Byzantine caesaropapism’.80 In the West, the Civil Law stood in time alone, justified and interpreted in the light of its Roman historical origins.81 Its exponents might claim that its rational authority was reflected in eternity; but that claim would always be contested by eternity’s independent earthly representative, the Church and its law. As Magnus Ryan argues in Chapter 2 in this volume, the enduring validity of Roman Law in the medieval West did not stem from its notion of the ‘eternity’ of an incarnate Christ, but rather from a historical sense of the contemporaneity of the Roman Empire which had taken on an eschatological dimension in the minds of scholastic jurists.82 In the East, by contrast, the authority of the incarnate Christ made law the emperor’s to determine. For Justinian, politics did not look for its reflection in eternity, rather politics was aligned with eternity as it moved through human time. Returning to Greenhouse, it is not just ‘the hegemony of linear time’ that gives Western political thought its distinctive hermeneutic: it is precisely that sense of separation between time and eternity. The difference between the legal and political hermeneutics of the (Byzantine) East and the (modern) West thus stem, at least in part, from different theologies concerning how exactly Christ ought to be understood as both man and God. If the West’s master metaphor of power and control is death (as Greenhouse argues), dividing time from eternity, the master metaphor of the Byzantine East was incarnation, eternity present in time. 80

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For a critique of the concept of ‘caesaropapism’, see Victor Roudometof, ‘Church, state, and political culture in Orthodox Christianity’, Oxford Research Encyclopedia of Politics. Retrieved 30  October 2019, from https://oxfordre.com/politics/view/10.1093/acrefore/9780190228637.001.0001/ acrefore-9780190228637-e-743 More broadly, Franz Tinnefeld, ‘Kirche und Staat im byzantinischen Reich’, Ostkirchliche Studien, 54 (2005), 56–78. See Chapter 2 in this volume, Magnus Ryan, ‘Historicity and Universality in Roman Law before 1600’. I owe this point of contrast, with thanks, to the volume’s anonymous reviewer.

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2 Historicity and Universality in Roman Law before 1600 Magnus Ryan

The standard biography of Roman Law contains a major caesura in the early ­sixteenth century. Endowed with a universal authority by medieval scholastic lawyers, the glossators and commentators, the Corpus iuris civilis of Justinian is commonly supposed to have been cut down to size by humanist method, an historically text-critical approach to law. Whereas the scholastics had attempted to apply Roman Law as a self-sufficient system to their own society, the humanists, believing that Roman Law was an historical artefact, attempted to do precisely the opposite. Time, it might be said, was not on the side of Roman Law or the political arguments founded on it and the humanists were, so it is supposed, the first lawyers to take time seriously in their encounter with the texts of Justinian. Where the great ­fourteenth-century jurist Bartolus and his pupils had seen unity, the sixteenthcentury humanist, Andrea Alciato or Jacques Cujas, saw multi-layered complexity and diversity. The universalism of the one, all-embracing Corpus iuris civilis succumbed to demystification by historical philology because to reveal the temporal stratification of the Roman Law was to impugn its unity. The corrosive specificities of historical change and periodization resulted in many Roman laws, some better preserved than others, some more congenial to the political tastes of the various humanists than others.1 In what follows I intend not so much to challenge this orthodoxy as to reverse the poles, for in another sense the current flows in the opposite direction. My contention is that in political terms the historical hermeneutic was the scholastic one and that by the late sixteenth century, after legal humanism had done its destructive work, Roman Law enjoyed a level of universality in politico–legal debate it had never enjoyed in the middle ages. By the later sixteenth century, the Roman Law was a language of political analysis, its terms and concepts generally applicable, which enabled its integration into wider political discourse to an extent previously rendered difficult by its historical specificity. 1

A classic account of the transformation is that of Donald R. Kelley, Foundations of Modern Historical Scholarship. Language, Law and History in the French Renaissance (New York and London, 1970).

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The clearest example of this is the manner in which a very Roman-legal story about the Roman people and its ruler was deployed and re-fashioned into a story about all peoples and their rulers. This took place in the body of ideas which we associate with Calvinist political theory. Polemicists such as Théodore de Bèze (1519– 1605), François Hotman (1524–1590), and the anonymous author of the Vindiciae contra tyrannos insisted on the popular origins of governmental power as an axiom of politics: the rulers of all well-ordered polities were established by their respective peoples. Everything dictated that any ruler’s governance originated in a popular grant and should remain open thereafter to scrutiny by representative magistrates for reasons intrinsic to the very concept of such a grant. Calvinist polemic was eclectic; but one of the many sets of justifications for these positions was heavily dependent on Roman Law, and Roman history interpreted through the prism of Roman Law.2 This is most clearly visible in Beza’s De iure magistratuum (published 1576, written 1573),3 but it is fundamental also to Hotman’s Francogallia (in particular the third edition of 1586)4 as well as to the Vindiciae contra tyrannos (1579).5 The two most dramatic characteristics of these arguments are their populism and universalism, concerning which two questions arise. What happened to the people as a political agent in the legal theory of the later middle ages, and why did it take so long for Roman Law to become a universal authority, applicable to all political societies? The principal protagonists in the story of how Roman Law animated political debate in the later middle ages are often taken to be the emperor and the people. The texts which the medieval jurists inherited from the distant emperor Justinian gave a confusing message, or two seemingly incompatible messages, about that relationship. From the old world of the Roman past, lawyers of the second and third centuries such as Julian and Ulpian reminded posterity that ‘it is no novelty that the Senate can still make law’,6 that the laws are only binding because the people accept them,7 with the result that custom introduced by the people binds as law.8 These same authors also acknowledged that things had changed, noting that ‘the prince is 2

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4

5

6 7 8

For all references to the Roman Law in what follows see Corpus Iuris Civilis, ed. P. Krueger, T. Mommsen and R. Scholl, 3 vols. (Berlin, 1886–95), specifically vol. 1 for the Digest and Institutes, vol. 2 for the Code and vol. 3 for the Novels. See especially the passages towards the end of Quaestio 6 of De iure magistratuum in Theodor Beza, De iure magistratuum, ed. K. Sturm, Texte zur Geschichte der evangelischen Theologie, vol. 1, (Neukirchen-Vluyn, 1965), 68ff, corresponding to 44ff of Théodore de Bèze, Du droit des Magistrats, ed. R. M. Kingdon, (Geneva, 1971). See editors’ introduction in François Hotman, Francogallia, edited and translated by R. E. Giesey and J. H. M. Salmon, (Cambridge, 1972), 105 and passages cited there for the general importance of Roman Law in the final version of the treatise. See especially the third Quaestio in Stephanus Junius Brutus, Vindiciae contra Tyrannos or, Concerning the legitimate power of a prince over the people, and of the people over a prince (original Latin edition, 1579), in the edition and translation by George Garnett, (Cambridge, 1994). Digest, 1.3.9, Ulpian. Digest, 1.3.32.1, Julian. Digest, 1.3.32.1, Julian.

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released from the laws’,9 and that ‘what has pleased the prince has the force of law’.10 They explained this by reference to an historical act, a transaction which they called a royal law or lex regia by which the Roman people transferred to the emperor all its power and command, or, depending on which exact passage one read, its right and command.11 The result, in a much more recent law promulgated by Justinian himself and also included in the Corpus, was that nowadays the princeps was ‘sole legislator’.12 The responses to this ambivalence by the pathfinding lawyers of the twelfth century – the first medieval glossators of the Roman Law – and those who followed them are well known but must be rehearsed briefly. The earliest known solution to the conundrum that the Roman people had transferred its power to the emperor yet was seemingly still able to abrogate his laws was offered by the founder of Western Europe’s first enduring post-classical Roman Law school, Irnerius, who taught at Bologna in the early twelfth century. His answer was that the different texts related to different periods in Roman history. Before the lex regia, the people still had the power of laying down the law and so by the tacit consent of the people laws were abrogated. But nowadays, since this power has been transferred to the emperor, the disuse of a particular law by the people has no effect.13 Irnerius was commenting on Digest 1.3.32.1, which stated the apparently contrary position that the people could abrogate a law by not applying it.14 His statement that ‘nowadays’ the power had been transferred to the emperor implied the continued pertinence of the lex regia, and thereby a continued relation to the Roman Empire. He was followed in his view by the majority of twelfth-century jurists, for whom the irrevocability of the transfer was reinforced by the repeated declarations throughout the Corpus that the empire was from God.15 God had desired an empire, and the Roman people had simply been his instrument in bringing it into being. 9 10 11 12 13 14

15

Digest, 1.3.31, Ulpian. Digest, 1.4.1, Ulpian; paraphrased at Institutes, 1.2.6. Institutes, 1.2.6, Digest, 1.4.1 (imperium and potestas) and Code, 1.17.1.7 (ius and potestas). Code, 1.14.12.4. See E. Cortese, La norma giuridica. Spunti teoretici nel diritto comune classico, 2 vols. (Milan, 1962–1964), vol. II, 126 n. 55 for an edition of the gloss. ‘An ancient custom is not improperly observed as a law, and this is what is called law established by usage. Indeed, inasmuch as the laws themselves restrain us for no other reason than because they are accepted by the judgement of the people, so anything whatever which the people show their approval of, even when there is no written rule, ought properly to be binding on all. For what difference does it make whether the people have manifested their will by vote, or by acts and deeds? Wherefore the rule has also been most justly adopted that laws shall be abrogated not only by the vote of the legislator, but also through disuse by the silent consent of all.’ My translation follows but is more cautious than that in A. Watson, The Digest of Justinian (4 vols., Pennsylvania, 1985). The Watson translation is an inestimable resource for modern scholars. See, most prominently, the proemium to Novel 6: ‘The greatest gifts that God, in his celestial benevolence, has bestowed on mankind are the priesthood and the empire (imperium).’ ‘Imperial power’ would be a more expansive and conceivably more accurate translation of imperium here, but ‘sovereignty’ – see the admirable translation by D. J. Miller and P. Sarris, The Novels of Justinian. A Complete Annotated English Translation, 2 vols. (Cambridge, 2018), vol. I, 97 – is apt to introduce confusion.

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Not until the end of the twelfth century was the countervailing notion fully a­ rticulated. It was probably formulated by a man called Johannes Bassianus, teaching at Bologna in the 1170s and 1180s, who reconciled the conundrum in quite another way. Only the emperor alone could pass a law; as such, he was superior to all individual citizens. But when the Senate legislated, or when the people (expressed as the singular noun populus) created a custom, they did not do so as single senators or single citizens but corporately. Hence, the people as a whole outweighed the emperor who in turn outweighed private citizens: in its succinct later and post-medieval formulation, princeps maior singulis minor universis: the emperor is greater than individuals but lesser than those same individuals when they act in a corporate capacity. The corporate people could therefore revoke the grant of power to the emperor. That final implication was teased out by Johannes Bassianus’ pupil Azo (c. 1150–1220/1229), whose works would remain among the most influential of the later middle ages and into the age of print. Azo’s own pupil, Accursius, then included it in somewhat muted form in his compilation of what would become the Standard or ‘Ordinary’ Gloss to the entire Corpus iuris civilis.16 It was an argument which did not convince every jurist, but thanks to its prominence in the Standard Gloss it would never go away. This is the essence of what modern scholarship refers to as ‘corporation theory’, which as we see here was an idea originally developed to make sense of conflicting passages in Roman Law which the scholastic hermeneutic could not allow to contain contradictions.17 Modern readers, mindful of the explosive forces to which this idea would give articulate expression in later centuries, could be forgiven for expecting this argument to constitute the necessary point of departure for all subsequent constitutional analysis in the medieval law schools. The reality was otherwise.18 The fundamental difference between the theorists of the sixteenth century and their precursors in the medieval law schools is that the medieval lawyers did not generalize the story they found in the Corpus iuris civilis about the origins of the emperors’ monarchical power over the Roman people. That is to say, they did not treat it as a model or a paradigm for all government, for all relations between rulers and ruled. The main reason for this was that for the medieval glossators and commentators the Roman Empire was the unique and universal empire; it was not simply one example of a category of political organization but the organization which contained all others such as kingdoms, principalities and cities. Theologians as far back as St Jerome told them so, Justinian implied as much. Combining 16

17 18

For Azo, see later in this volume. For Accursius, see his gloss to Digest, 1.3.9 in Digestum vetus. Pandectarum iuris civilis tomus primus (Lyon, 1560), col. 30. It is significant that Accursius associates the point about deposition of the emperor with another lawyer of the first third of the thirteenth century, Hugolinus de Presbyteriis, in so far as this shows that the argument was broadly known. For the briefest of introductions: M. J. Ryan, ‘Corporation Theory’, in H. Lagerlund, ed., Encyclopedia of Medieval Philosophy (Dordrecht, 2011). For more detail on the arguments of Azo, Accursius and others: M. J. Ryan, ‘Political Thought’, in David Johnston, ed., The Cambridge Companion to Roman Law (Cambridge, 2015), 423–51, at 426–7.

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theology with jurisprudence, the medieval jurists understood the Roman Empire as not so much a geopolitical phenomenon, but, rather, as an eschatological concept: it would accompany Christ’s Church until Judgement Day.19 Roman Law, therefore, existed within the time of the empire, the continued historical existence of which was taken as a given, and would end only with Christ’s second coming. As a result, the medieval Roman lawyers were ever more stretched between past and present, bound as they were to think in terms of the institutions described in their Justinianic texts, and thereby inhibited in abstracting from them to the circumstances they now faced. Far from being unencumbered by historical consciousness as scholastics, as lawyers they were locked into the history of the Roman Empire as the outcome of unrepeatable and ungeneralizable events. The scholastic lawyers were not, therefore, unhistorical in outlook; quite to the contrary, theirs was a vision almost helplessly imprisoned by a sense of the past. It is essential to remember this as we now explore how the glossators of Roman Law applied the story of the lex regia, the transfer of ruling power by the Roman people to the emperor, in their day-to-day jurisprudence. In fact, there is remarkably little such jurisprudence. Azo’s theory of the revocable lex regia has often been understood as a populist argument intended to justify the self-governance or the autonomy of North-Italian cities from the Empire.20 But Azo was not talking about any political organization except the Roman Empire when he declared that the people could revoke the lex regia. When he discussed other collectivities he deployed entirely different arguments. For example, could municipal magistrates legislate? Azo must have had the city-states of North Italy in mind here and his answer was that they could – but not because of the lex regia argument; on the contrary, Azo had to excavate other passages from the Roman Law proving that municipia had the right to pass laws for themselves – a right not irrelevantly granted by imperial authority to cities which Azo accordingly must have reckoned as belonging to the empire. Was the emperor the only person to hold merum imperium? Again, no: but Azo never mentions the people in this context, let alone the lex regia. Instead, he engages in a careful analysis of other laws in the Digest and Code to prove that officers such as provincial governors and the Praetorian Prefect also hold merum imperium, and that municipal magistrates did not.21 In other words, the organizations modern scholars refer to as city-states were not similar to the empire or analogous to it; they were subordinate entities within the empire. What was true of the whole empire was not true of its parts; the lex regia explained why there was a monarch at the top, it could not explain the way lesser organizations worked. 19 20

21

Cf. Caroline Humfress, ‘Out of time? Eternity, Christology, and Justinianic Law’ in Chapter 1 of this volume, 52–3. Azo, Summa super codicem, in Azonis summa super codicem. Instituta. Extraordinaria. Corpus Glossatorum Juris Civilis II (Turin, 1966), 9a; Azo, Lectura super codicem, in Azonis lectura super codicem. Hugolini apparatus in tres libros. Corpus Glossatorum Juris Civilis III (Turin, 1966), 44, 671. Azo, Summa codicis, 68 (Code, 3.13).

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The problem for the glossators was that these lesser organizations were now in charge, at least locally or regionally in the case of Italian cities and on an altogether grander scale in the case of kingdoms. The teacher of canon law at Bologna and contemporary of Azo, Alanus Anglicus, famously declared in another context that ‘What has been said of the emperor may be held true of any prince who has no superior lord. Each one has as much jurisdiction in his kingdom as the emperor has in the empire.’22 That argument was perhaps known to Azo when he observed in a quaestio that ‘Nowadays, kings can do whatever they like’.23 A sense of passing time, of historical change, is detectible here: the empire is not what it was, with the result that nowadays a king can become the emperor in his own kingdom simply by not recognizing imperial authority. The most celebrated statement of this position came in the middle of the thirteenth century in the work of a French-Burgundian lawyer, Jean de Blanot, who had studied and taught at Bologna. Arguing that the king of France recognized no superior in temporal matters he demonstrated that a rebel against the king was guilty of lèse majesté in the Roman Law sense because the king was emperor in his own kingdom.24 However, the non-recognition principle is notable for what it does not do. It explains nothing systematic: not the origin nor the content of royal powers in general or specific terms. Sub-imperial – in the examples given so far, royal – power simply appeared to arise as an outcome of two things: the possession of a particular region, and not recognizing the pre-existing authority of the emperor. A king’s power thus emerged as nothing more than a geographically circumscribed splinter of the old imperial power. Because the argument rests on a notion of the discrete territory it is also historically parasitic on the Roman Empire. The king controls France, therefore he controls or possesses the jurisdiction over that area now called France which used to belong to the Roman Emperor. It is as if by taking the ground he has also taken the grass growing on it. The grass is jurisdiction and the Romans sowed it. When the logic of this position is properly understood, it reveals an irony which has rarely if ever been remarked: the argument that the king of France recognized 22

23

24

Alanus Anglicus, gloss to Distinction 96 c. 6 of Gratian’s Decretum, the canon Cum ad verum, an excerpt from a letter of Pope Nicholas I. I quote here the translation by B. Tierney, The Crisis of Church and State 1050–1300 (Toronto 1988), 124. Since medieval canon lawyers worked under very different hermeneutical postulates to those recognized by the majority of their civilian counterparts, they only play an incidental role in the current argument. There was of course a lively and longrunning canonist discourse on the Roman Empire which forms a central and traditional focus in histories of medieval legal thought. For the text of Azo’s quaestio see E. Landsberg, Die quaestiones des Azo (Freiburg, 1888), 86ff. For discussion, see Ryan, ‘Political Thought’, 433–5; K. Pennington, The Prince and the Law 1200–1600. Sovereignty and Rights in the Western Legal Tradition (Berkeley and Oxford, 1993), 35, n. 116; F. Calasso, I glossatori e la teoria della sovranità, 3rd ed., (Milan, 1957), 33–4. Johannes de Blanosco, De actionibus tractatus clarissimorum iurisconsultorum, fo. 246rb: commentary on Institutes 4.6. See R. Feenstra, ‘Jean de Blanot et la formule “Rex Francie in regno suo princeps est”,’ in Études d’histoire du droit canonique dédiées à Gabrielle le Bras (Paris, 1965), vol. 2, 890–1; for detailed discussion, see Ryan, ‘Political Thought’, 435–6.

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no superior in temporal matters was only partly directed against the modern emperors, but it was still dependent on the pre-existing jurisdiction of the empire. We can see this in the work of one of the most original lawyers of the fourteenth century, the Frenchman Jean Faure (c. 1270–c. 1340). In his commentary on Justinian’s Code Faure asserts: You can say that whoever has a territory with long-established boundaries, is justified by the common law, within the limits of that same territory, in exercising in whatsoever part [of the empire] the right which [the emperor] exercises over the whole.25

Territory is intimately connected with the historical framework of legal interpretation. It brought lawyers even further from the people, as Jean’s first legal citation here shows, for he quotes Digest 50.16.239.8, a passage in which the classical jurist Pomponius defines territorium by reference to the verb terreo, to ‘terrify’: ‘Territory is the universitas of fields within the boundaries of any city, which some people say is derived from the fact that magistrates have the right of “terrifying”, that is, of banishment within the limits of that place’. Roman Law therefore presents territorium as something intrinsically linked to the concept of jurisdiction but does so without reference to people, let alone the people. So we begin to understand why Jean Faure fashioned this part of his argument by referring to territory. More than anything else, territory was a form of proof for him: if one held a territory, defined historically, then one held jurisdiction. But from far in the past the Roman Empire still functioned as the source of the jurisdiction wielded by medieval monarchs. The territorial argument made it easy to explain why certain people were now rulers in place of the emperor; it was not an explanation of why the powers which made rule what it was were what they were. That particular question, which we can well imagine as possessing deeply corrosive implications for the legal legitimacy of monarchy in particular, was not available for discussion and this is one reason the people as an agent tended to disappear from such discussions. Territory buried the people: the emperor had his power from the Romans, the king of France now has his from the territory of France. Only at the origin of a long genealogy of his power would a ruler find a people, and not even his own, who were as a consequence an irrelevance. The principal role of territory in these discussions was to legitimize the exercise of governmental power and that logic led, infallibly, back to the Roman Empire as source of jurisdiction. It therefore emerges, and should be emphasized, that the notion of territory did nothing to ‘emancipate’ the Roman Law from the unique and ongoing history of the universal Roman Empire, but depended absolutely on it. The legal importance of the empire as an abstraction was undiminished by the non-recognition by modern rulers of the emperor. This is why historical change is frequently mentioned in such contexts: it was necessary to explain that the person or 25

See Faure’s comments on Code, 1.1.1, the famous law Cunctos populos, in Ioannis Fabri Burdegalensis … in Codicis Iustiniani … priores libros IX. annotationes Codicis Breviarium nuncupatae (Lyon, 1594), 3a.

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persons in charge were nowadays different – that is, no longer the emperor – whereas the nature of governing power remained the same, comfortably without any probative rationale beyond territorial possession by the relevant ruler since time out of mind, and in consequence hygienically scrubbed of all originative causality in the people. We have seen one example already in the work of Jean Faure but there are plenty of others. In the commentary on Justinian’s Code he wrote around 1300, the Orléans professor Nicholaus de Matarellis attempted to explain why Italian city-states routinely exercised imperial rights of taxation. His first argument was a reference to the province and historical change: ‘It is clear, however, that the cities of Italy claim fiscal rights, together with the jurisdiction over them, which is nowadays distributed between cities just as formerly it was distributed between provinces.’26 Even when other territorial vocabulary, beyond that of the province, was employed, the legal logic remained the same, and not just in the lecture room. In 1380 the Archbishop of Lyon was challenged in Parlement by the procureur du roi for having confiscated the goods of condemned criminals; according to the procureur, this was a fiscal and therefore royal privilege. Here is the answer from the archbishop’s side: When the laws were made, all jurisdiction pertained to the emperor, but nowadays the empire has been divided [hodie scissum est imperium] and the jurisdictions, and all high holders of high jurisdiction are reckoned to be the fisc in their own jurisdiction.27

The king of France was emperor already in his own kingdom; the archbishop of Lyon is now claiming to be the fisc in his own jurisdiction, and for the same reason: because the empire, these days, has been ‘rent’. However, the imperial powers (imperium, iurisdictio, fiscalia, etc.) were the same and had been, as it were, left behind when the emperor withdrew. Each effort by medieval lawyers to come to terms with contemporary politics thus led them further and further away from the people as political agent and as original source of governmental power because the agent had been specifically and only the Roman people.28 The historicity of a modern medieval kingdom or citystate was calculated according to a Roman timeline. Legitimate power was therefore genealogical and derivative in most mainstream medieval Roman Law theory.29 26

27 28 29

See mss. Biblioteca Apostolica Vaticana, Codd. Chigi, E. VIII. 245, fo. 108vb–109rb and Archivio San Pietro A. 29, fo. 273vb–276ra: ‘Constat autem quod civitates Italiae sibi vendicant fiscalia, et iurisdictionem hodie divisam in illis per civitates sicut olim per provincias.’ The incipit and casus have been edited by M. Bellomo, Quaestiones in iure civili disputatae. Didattica e prassi colta nel sistema del diritto comune fra duecento e trecento (Istituto Storico Italiano per il Medio Evo: Fonti per la storia dell’Italia medievale, Rome 2008), 181. Paris, Archives Nationales X1a 1471, fo. 401r, 18 July 1380. Emphases are mine. Not once and once only, because Digest, 1.2.2 relates how the Roman people stripped the Decemvirs of their powers long before the transfer of power to the princeps by means of the lex regia. There were, of course exceptions. For the Neapolitan jurist Marinus de Caramanico, for example, see Ryan, ‘Political Thought’, 437.

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In this sense, it was not easily susceptible to generalizing or systematic, abstract analysis. The glossators and commentators argued about concrete phenomena, the kingdoms and cities already in existence within the confines of the empire or as splinters of the empire, not in abstract, universal terms. Even one of the most notable exceptions proves the rule: the Hispanic canonist Vincentius Hispanus insisted that the Iberian peninsula was not subject to the Germans now in control of the Roman Empire because it was being won back by purely Spanish virtue from the Moors; yet even Vincentius noted that a disposition in the Roman Law itself exempts Spain from paying tribute to the emperor.30 There is, accordingly, remarkably little scholastic jurisprudence on the lex regia. Early in the fourteenth century the consensus, such as there was, shifted even more strongly against Azo’s notion that the lex regia might be revoked: the Roman people could never revoke the lex regia nowadays because Christ’s advent had sealed the arrangement. Once again, sacred history was invoked to reinforce civil, just as it had been by Justinian when promulgating the Corpus iuris civilis. For Bartolus of Sassoferrato (1314–1357), the transfer of the power of the Roman people by the lex regia to the emperor had taken place in accordance with God’s design, confirmed by Christ’s injunction, ‘Render to Caesar’ (Matth. 22:21; Mark 12:17; Luke 20:25). It was Christ who had fulfilled the prophecy of Daniel concerning the succession of world empires (Dan. 2:31–45). Through Christ, empire had passed to his vicar Peter, who was ever since perpetually present in the person of each successive pope.31 This did create the possibility, pursued by Bartolus’ most famous pupil, Baldus de Ubaldis (d. 1400), that the pope might deprive the emperor of the empire.32 But it offered no way back for the people; on the contrary, they were now doubly cancelled, by both the Church and the empire. As Baldus’ own pupil Paulus de Castro put it in his commentary on Digest 1.3.32, ‘I conclude that nowadays the Roman people can do nothing in the empire.’33 The strange thing is that if one seeks the first signs of change, they come well before legal humanism. In an opinion written in the 1420s for the city of Padua, Paulus de Castro argued that in consequence of its submission to Venice back in 1405, Padua was no longer an independent unit, but a component of Venice’s terra firma regional lordship: 30 31 32

33

G. Post, Studies in Medieval Legal Thought: Public Law and the State, 1100–1322 (Princeton, 1964), 488–9. Magnus Ryan, ‘Bartolus of Sassoferrato and free cities’, Transactions of the Royal Historical Society, 6th ser. 17 (2000), 75–6. Baldus, In primum, secundum et tertium Codicis libros commentaria, fo. 66rb [C. 1.14.4]: ‘Secondly, note that the emperor’s authority depends from the lex regia which was promulgated by divine command …’ (Secundo no. quod authoritas Imperatoris pendet ex lege Regia quae fuit nutu divino promulgata …). See Joseph Canning, The Political Thought of Baldus de Ubaldis (Cambridge, 1987), 62. Paulus Castrensis, Pauli de Castro prima super digesto veteri, fo. 10vb [D. 1.3.9]; see R. W. Carlyle and A. J. Carlyle, A History of Mediaeval Political Theory in the West, 6 vols. (Edinburgh and London, 1903–1936), vol. 6, 147; H. Morel, ‘La place de la Lex regia dans l’histoire des idées politiques’, in Études offertes à Jean Macqueron, ed. Y. Lobin, (Aix-en-Provence, 1970), 547 n. 11.

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The community of Padua has no jurisdiction, since it has transferred all its ­jurisdiction and imperium to the lordship of the Venetians, as in the Digest, 1.4.1 …, hence nor can the Paduans pass penal statutes nor conduct business involving jurisdiction without the permission of the said lordship of Venice …34

This was as much as to suggest that the Paduans had enacted their own lex regia, handing themselves over to the superior power of Venice, and thus terminating the autonomous existence of their own city. Not just the Romans had enacted a lex regia, it seems; such a transfer of power was, apparently, a replicable, rather than a singular, unrepeatable event. Furthermore, the limitations applying to the Roman transfer transparently did not obtain in other instances: Christ’s advent had no legal results for the relations between Padua and Venice. In which case, could there not be other instances of such a transfer of power, freeing the concept from its strict association with the Roman Empire? This is not to suggest that there was nothing important to distinguish Paulus’ approach from that of Théodore de Bèze and his fellow Calvinists in the 1570s and after. Apart from anything else, Bèze supported his thesis by the application of the criteria and principles drawn from Roman Law’s doctrine of consensual contracts and the Praetorian remedy relating to duress, among others. It was by the addition of these that Bèze could argue well beyond the lex regia, which had understandably been the object of acute attention on the part of the legal humanists and very precisely located within a Roman narrative, by appealing instead to the general principle that not only did any ruler’s authority originate in a popular grant, but it should remain subject to popular scrutiny and redress. By means of these and similar arguments, moreover, Roman Law had by the 1570s been promoted in status: several principles which the medieval lawyers had accurately treated as civil law were now characterized by Bèze as emanations of natural law and equity. The most important in the current context was the claim that in all pacts and agreements contracted solely by mutual consent of the parties those same parties may dissolve and annul the agreement when reason dictates.35 But even when he was prepared to let civil law be civil law, rather than re-casting it as natural equity, Bèze lent certain principles of contract added valency by applying them to the transfer of power from people to ruler. These were indeed principles of such force that they obtruded even into his condemnation of resistance to a usurpation after supervenient consent to that usurpation was deemed to have taken place. In this crucial passage towards the end of quaestio five of De iure magistratuum, Bèze argues that good and true Roman citizens could and should have fought against the 34

35

Paulus Castrensis, Consiliorum sive responsorum … Pauli Castrensis volumen secundum, cons. 230. The text is not easily accessible or quoted in modern literature so is worth quoting in the original here: Sed communitas Paduae nullam habet iurisdictionem, cum omnem ipsius iurisdictionem et imperium transtulerit in dominium Venetorum l. i. in prin. ff. de consti. pecu. [sic: D. 1.4.10; recte: de consti. princ., = D. 1.4.1]. Beza, De iure magistratuum, 68, corresponding to Du droit des Magistrats, 44.

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Triumvirate, but adds: ‘I dare not say that Cinna and his followers could rightfully conspire to kill Augustus once the lex regia, as it is called, was promulgated and accepted.’36 Immediately following this, however, the caveat is entered: consent by the whole people or its greater part should be rescinded rather than kept when it has been extorted under duress.37 The same logic is applied late in quaestio six, where he challenges those who exalt the authority of sovereigns to prove ‘that there ever was a nation so unmindful of its interests as to submit itself – knowingly and without intimidation or constraint – to the will of a sovereign …’ without attaching certain conditions which, if violated, would release the people from all obligation to its ruler. In the English or French it is easy to miss the paternity of the Roman Law couplet metus and vis – duress and force – in this and the immediately following passage.38 Bèze’s willingness to reach beyond the specifically Roman context of the lex regia had been anticipated in Hotman’s Francogallia. Where Bèze reinterpreted the lex regia by applying the distinct Roman Law principles of contract and combining these with principles now regarded as belonging to natural law, Hotman reconstructed the ancient constitution of Gaul as it had existed before the Roman conquest and of Francia after the Roman defeat at the hands of the Franks. Back then, he claimed, kings had been popularly elected, and the resulting post-Roman Francogallican public law had established the customary law of the French kingdom ever since. But as George Garnett has pointed out, Hotman shored up this historical claim by invoking principles of customary law and contract clearly drawn from Roman Law, and from Bartolus in particular. As a legal humanist, Hotman ridiculed Bartolus as a scholastic; as a jurist and theorist of the French monarchy, however, Hotman saw that he could adapt Bartolist, Roman Law principles to strengthen his idiosyncratic reading of the kingdom’s original constitution.39 So doing, he pulled Roman Law principles out of the strictly Roman historical perspective in which Bartolus still treated them, and, if only by implication, demonstrated their potentially universal significance. The still unidentified author of the Vindiciae contra tyrannos was less promiscuous than Hotman in the range of argumentation applied to make the case for the popular origin of authority and its revocability, but here, too, the lex regia was pulled away from its singularly Roman context. In the Vindiciae, the lex regia is instanced 36

37 38

39

I follow the translation of J. H. Franklin, The Right of Magistrates over their Subjects, in Constitutionalism and Resistance in the Sixteenth Century. Three Treatises by Hotman, Beza and Mornay (New York, 1969), 107. Beza, De iure magistratuum, 38; Du droit des Magistrats, 14. Beza, De iure magistratuum, 68; Du droit des Magistrats, 45 and n. 3, where R. M. Kingdon, as punctiliously here as throughout his edition, refers to Digest, 4.2.1; Franklin, Constitutionalism and Resistance, 124. George Garnett, ‘Scholastic thought in humanist guise: François Hotman’s ancient French constitution’, in Peter Linehan, Janet L. Nelson and Marios Costambeys, eds., The Medieval World, 2nd ed. (London and New York, 2018), 789–810.

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alongside examples from sacred, Old Testament history of popular election of kings, and the identification of the lex regia with a contract (pactum) is explicit. The acceptance by Rome’s kings and later emperors that they were bound by the laws and received their power to command from the Senate was but one instance of a generally observable principle.40 The case made in the Vindiciae, as in all the major works of the Calvinist resistance theorists, was saturated with Roman Law,41 but it was a Roman Law no longer tied to the assumed continuity and inclusivity of Roman history. For Paulus de Castro, in common with his scholastic colleagues and predecessors, the lex regia, even in its generalizable form, was certainly no contract; since the 1230s it had routinely been regarded as something quite different: a delegation of jurisdiction. But the dislocation of this mechanism from the unrepeatable because unique history of the Roman Empire in the work of Paulus de Castro indicates where late scholastic Roman Law was heading and where, in consequence, we should be looking if we want an answer to an important, final question. Quentin Skinner memorably described the early seventeenth-century project to neutralize the corporate people, the people of scholastic Roman Law extraction which had been deployed so effectively by the Calvinist polemicists and their Catholic emulators, as burying the body of the people.42 If the arguments presented in the foregoing pages be accepted, the task for intellectual historians may accordingly be summarized crisply: we need to find out who first disinterred the people, for as should now be clear, its grave had been a deep one, dug by the middle of the thirteenth century. By then the exclusively Roman relevance of the lex regia and the allied doctrines of non-recognition and territorial possession had for the most part sidelined the people as political agent. If Paulus de Castro was typical – and he was certainly highly respected – then the people as an agent, if only with the capacity to hand itself over to a ruler (which is all Paulus envisages) had begun to re-enter the political discourse of the lawyers more than a century before the eye-catching works of the Huguenots. When it came to the Roman people and its relationship with the emperor, Paulus’s vision of the lex regia was entirely traditional,43 for he argued that Christ’s advent had rendered the arrangement irrevocable, and this seems to have been his opinion about the Paduans vis-à-vis the Venetians, too, but the significance of this passage in his consilium is not the precise claim being made, but rather the means by which it is supported: a ‘little’ lex regia enacted by a people other than the Romans en masse. 40

41 42 43

Vindiciae contra tyrannos, ed. Garnett, 71, 99–102 (the lex regia in broader historical context), 131–2 (its status as a contract). See also the ‘Editor’s Introduction: Part I: The Argument’, xix–liv, and ‘Part II: The Authorship’, lv–lxxvi, for explanation why the author has yet to be identified. As Quentin Skinner emphatically pointed out, The Foundations of Modern Political Thought. II The Age of Reformation (Cambridge, 1978), 302–38. Quentin Skinner, ‘Burying the Body of the People’, John Coffin Memorial Lecture, delivered at the University of London, 8 May 2003. Ryan, ‘Political Thought’, 432, and for what follows, 445.

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This adds a final twist to the story sketched here. Not only was medieval, scholastic Roman Law necessarily historical in a way that shaped its interpretation from the twelfth to the late fourteenth centuries at the earliest, being based upon a presumption of the singularity and continued existence of the Roman Empire. It also seems that it was in the works of fifteenth-century scholastic Roman lawyers that Roman Law principles first began to escape Rome’s historical embrace, and to be adapted to the historical circumstances of other, political entities, kingdoms and cities. Clarity on this would facilitate a more accurate evaluation of the difference made by the humanist legal scholars when they began to insist that the significance of the specificity of the ancient texts lay in the distance between the original and current applications of the law. Humanist legal scholarship will still help to explain why the Huguenot resistance theorists were able so confidently to match Roman Law principles with other histories, sacred and national, and thereby to render them of universal application. But a tendency to deploy the lex regia as a model appears to be stirring in the consilium of Paulus de Castro, with no accompanying rejection of the universal Roman Empire as an eschatological and therefore time-bound phenomenon, or any appeal to historical change of the kind occasionally alluded to by some of his predecessors such as Jean Faure or Nicholaus de Matarellis. It is true that a pragmatic legal opinion might not support the same interpretative weight as a formal commentary on Justinian’s Digest, yet without challenging the contemporaneity of the Roman Empire, without evading the traditional and mainstream temporal postulates of the civilians, Paulus appears to have been doing something new, for analogy implies the beginning of generalization, and this particular generalization had been beyond the reach of most mainstream scholastic lawyers.

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3 ‘The Logic of Authority, and the Logic of Evidence’ George Garnett

That process by which old principles and old phrases are charged with a new content, is from the lawyer’s point of view an evolution of the true intent and meaning of the old law; from the historian’s point of view it is almost of necessity a process of perversion and misunderstanding. Thus we are tempted to mix up two different logics, the logic of authority, and the logic of evidence. What the lawyer wants is authority and the newer the better; what the historian wants is evidence and the older the better. This when stated is obvious; but often we conceal it from ourselves under some phrase about ‘common law’.

Thus F. W. Maitland – still by universal consent accounted the best as well as the most influential historian of English common law – in his 1888 inaugural lecture as Downing Professor of the Laws of England, entitled ‘Why the History of English Law is not Written’.1 The title is not a question; it portends an explanation. The lecture has become so canonical that it is often echoed and alluded to;2 but this, its central point, has provoked little direct comment.3 With characteristic limpidity, it identified a fundamental problem in writing the history of English common law. I should like to thank John Hudson, George Molyneaux, Helen Pike and John Robertson for commenting on drafts of this chapter. I am also grateful to those who listened and responded to versions of it delivered in Cambridge and St Andrews. I dedicate it to Sir John Baker, who has done so much to pursue the problems framed by his illustrious predecessor. I hope he will accept it as a supplement to the collection of essays recently presented to him. He has been welcoming, encouraging and instructive as I have begun to dabble in his subject. 1

2

3

F. W. Maitland, Collected Papers (hereafter CP without Maitland’s name), ed. H. A. L. Fisher, 3 vols. (Cambridge, 1911), i. 480–97, at 491. Maitland’s fair copy for the printer survives in Cambridge, UL, MS. Add. 7002, fos. 1r–26r, with this passage at 16v–17r. There are no corrections or changes of the sort frequently found elsewhere in the text. J. H. Baker, Why the History of English Law Has Not Been Finished, Inaugural Lecture as Downing Professor of the Laws of England (Cambridge, 1998), repr. in Sir John [J. H.] Baker, Collected Papers on English Legal History, 3 vols. (Cambridge, 2013), iii. 1544–67; C. Donohue, Why the History of Canon Law is Not Written, Selden Society Lecture, 1984 (London, 1986). J. H. Baker, ‘John Selden and English legal history’, Collected Papers, ii. 755–67, at 761; ‘Why the History has not been finished’, Collected Papers, iii. 1546; ‘Why should undergraduates study legal history?’, Collected Papers, iii. 1568–77, at 1568.

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Maitland attempted to encapsulate his point about different, by implication almost but (as we shall see) crucially not quite antithetical,4 logics in a memorable aphorism: ‘The lawyer must be orthodox otherwise he is no lawyer; an orthodox history seems to me to be a contradiction in terms.’ This has been seized upon by historians,5 even legal historians,6 who interpret it as an authoritative endorsement of the open-minded, empirical spirit in which they approach their ancient sources, by implicit contrast with the derivative, presentminded conformism of lawyers. But this is to misinterpret it utterly. Maitland was not encouraging historians to think of themselves as a higher, heterodox caste. Far from it, as becomes disconcertingly clear from his repeated strictures about the near necessity for any decent historian of English law to be an English lawyer.7 The precociously ‘wonderful unity’8 of English justice, established by implication as a consequence of the Norman Conquest,9 had been a precondition for the unique continuity of English law thenceforth. It was this continuity which meant that any practising English lawyer, even at the end of the nineteenth century, must know something about medieval law. In this respect, modern English lawyers were quite different from continental ones, for in modern France (quoting Macaulay) ‘the gulph of a great revolution completely separates the new from the old system’;10 or in contemporary, recently unified Germany, where the diverse vestiges of medieval jurisdictions were on the verge of being ‘swept away… into the dust-bin’, as had happened in France long ago under Napoleon I, to be replaced in 1896 by ‘a legal system rational, coherent, modern, worthy of [the] country and our century’.11 ‘With us [by contrast, again quoting Macaulay] the precedents of the middle ages are still valid precedents’.12 But what was meant by the knowledge of medieval (and later) ‘valid precedents’ which was still essential to any modern common lawyer? In Maitland’s view, what was required was: not, save in the rarest cases, a knowledge of medieval law as it was in the m ­ iddle ages,13 but rather a [real] knowledge of medieval law as interpreted by modern courts to suit modern facts. A lawyer finds on his table a case about rights of 4 5 6 7

8 9 10 11 12 13

CP, i. 491: ‘the task is difficult’ – but not, he implies, impossible. H. Butterfield, The Englishman and his History (Cambridge, 1944), 35. T. F. T. Plucknett, Early English Legal Literature (Cambridge, 1958), 13–14. CP, i. 493–4. Plucknett, Legal Literature, 12–13, explains this away as an uncharacteristic lapse ­occasioned by illness, a view which S. F. C. Milsom, A Natural History of the Common Law (New York, 2003), xix, ascribes to Plucknett’s not being a trained lawyer. CP, i. 483. CP, i. 482: ‘Owing to the very early centralization of justice in this conquered country…’. CP, i. 492. ‘The making of the German Civil Code’, CP, iii. 474–88, at 476. CP, i. 492. Cambridge, UL, MS. Add. 7002, fo. 16r: the square brackets are mine, and signify Maitland’s lastminute deletions; the italics are also mine, and signify his interlinear insertions.

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common which sends him to the Statute of Merton. But is it really the law of 1236 that he wants to know? No, it is the ultimate result of the interpretations set on the statute by the judges of twenty generations. The more modern the decision the more valuable for his purpose.14

The more recent the judicial decision, the more accurately it would represent what a lawyer would see as ‘an evolution of the true intent and meaning of the old law’. The modern English lawyer’s perspective would therefore be very different from, almost but not quite antithetical to, that of an historian. But a lawyer would at least be familiar with the rebarbative technicalities which, uniquely in common law jurisdictions, had survived and evolved through the six or seven centuries since their first recorded appearance, and remained current forensic parlance. The forms into which they had evolved might be very different, but there was a continuity nevertheless. In Maitland’s view, the modern lawyer’s grasp of such technicalities would render him far more capable than any non-lawyer of making some sense of the uniquely overwhelming morass of surviving medieval English legal documentation. But such sense as the lawyer historian made of this material would almost inevitably in Maitland’s terms be perverted or misunderstood, because he would approach and therefore be likely to interpret the technicalities from a present-minded perspective – the ‘logic of authority’. In a lawyer’s view this would represent their ‘true intent and meaning’. Why, for instance, should Maitland’s hypothetical modern lawyer care that what had for centuries been termed the Statute of Merton had not originally been a statute at all, in Thomas Littleton’s fifteenth-century sense of written parliamentary legislation issued at a single time and place,15 but a succession of royal ‘provisions’ or summaries thereof, in the form of letters close, promulgated on a number of separate occasions between 1234 and 1237, and subsequently parcelled up and re-categorised as a single statute?16 The whole assemblage had then been attributed to the great council which had met at Merton in January 1236, and named accordingly. Or take Magna Carta, originally in 1215 and in its final text of 1225 a royal grant in the form of a charter rather than a provision, but almost always 14 15

16

CP, i. 490–1. Maitland, ‘The Praerogativa Regis’, CP, ii. 182–9, at 188–9; S. B. Chrimes, English Constitutional Ideas in the Fifteenth Century (Cambridge, 1936), 43–4 and app. 61: F. Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629 (Minneapolis, 1948), 66. For the fluid meaning of the term statute in the thirteenth century, when it meant nothing more precise than a royal ordinance, see H. G. Richardson and G. O. Sayles, ‘The early statutes’, Law Quarterly Review, l (1934), 201–23, 540–73, at 201–3; for the developments of the fourteenth century, 556–62, 569. J. C. Holt, ‘The Ancient Constitution in medieval England’, in E. Sandoz, ed., The Roots of Liberty. Magna Carta, Ancient Constitution, and the Anglo-American Tradition of the Rule of Law (Indianapolis, 1993), 32–74, at 37; Richardson and Sayles, ‘Early statutes’, 204, 541–2, 546; F. M. Powicke, King Henry III and the Lord Edward. The Community of the Realm in the Thirteenth Century, 2 vols. (Oxford, 1948), i. 148–51, ii. 769–71; for a thirteenth-century definition of statute as ‘still merely an incident in the development of custom, and not (as it is today) a document thrust upon the courts from the outside’, see T. F. T. Plucknett, The Legislation of Edward I (Oxford, 1949), 13–15; T. F. T. Plucknett, Statutes & Their Interpretation in the First Half of the Fourteenth Century (Cambridge, 1922), 8–12.

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accorded first place in the collections of statutes which began to be compiled by the late thirteenth century. Lawyers’ lack of interest in these historic details of the original documentation epitomises the conundrum of Maitland’s two different logics. While succumbing to what he characterises as the temptation to mix them up is problematic, it is nevertheless unavoidable if the history of the common law is to be fruitfully investigated. To do so with any prospect of success requires a balancing of the logics, yet he fails to set out any explicit guidelines for doing so. This is the conundrum that I want to explore in this chapter, because I agree that it is central to understanding the particular difficulties of writing the history of common law. By extension, this exploration will also of necessity tell us something about the peculiar roles of time and history in common law, and about their influence on a type of political thinking distinctive of common law jurisdictions. As has long been recognised, this was especially striking when that influence was at its high point, in the seventeenth century.17 Maitland was ambivalent about the conundrum. On the one hand, so little had changed in English land law that Littleton or Blackstone could still be recommended to undergraduates as preliminary reading;18 and if the German legal historian Heinrich Brunner wanted to investigate Anglo-Norman inheritance law for comparative purposes, to throw some light on the ‘pure Teutonic’ – that is, medieval German – law of inheritance ‘before it was corrupted by Romanism and reason’, then Maitland knew just the thing. Not twelfth-century Glanvill or thirteenthcentury Bracton, or even fifteenth-century Littleton or eighteenth-century Blackstone, but the current standard textbook on real property, where Brunner would find ‘substantially the self-same law’, albeit with a few minor updating tweaks, ‘for accidents will happen in the best regulated museums’.19 Even with the tweaks, bizarre consequences sometimes flowed from the continuing application of medieval law in the modern world: ‘It seems to me to be full of rules which no-one 17

18

19

John G. A. Pocock, The Ancient Constitution and the Feudal Law. A Study of English Historical Thought in the Seventeenth Century (Cambridge 1957), A Reissue with a Retrospect (Cambridge, 1987). S. F. C. Milsom, ‘F. W. Maitland’, repr. in his Studies in the History of the Common Law (London, 1986), 273–4. I am grateful to John Hudson for pointing out that Milsom may have been thinking of The Letters of Frederic William Maitland, C. H. S. Fifoot and P. N. R. Zutshi, eds., 2 vols., Selden Soc., sup. Ser. (1965–1995), i. no. 168 (15 August 1895), which does not, however, mention Blackstone. Blackstone is frequently invoked in the posthumously published course of lectures on Forms of Action: F. W. Maitland, The Forms of Action at Common Law. A Course of Lectures, ed. A. H. Chaytor and W. J. Whittaker (Cambridge, 1936); cf. ‘Outlines of English legal history, 560–1600’, CP, ii. 417–96, at 418. ‘The Law of Real Property’, CP, i. 162–201, at 174–5; the essay had first been published anonymously in 1879; cf. his review of Brunner’s volume of collected essays, Forschungen zur Geschichte des deutschen und französischen Rechts (Stuttgart, 1894), in EHR, ix (1894), 593–4. The text-book Maitland had in mind is Joshua Williams, Principles of the Law of Real Property, 12th ed. (London, 1877). Maitland makes extensive use of it, and of Williams’ published lectures on the seisin of freehold, throughout this essay.

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would enact nowadays unless he were in a lunatic asylum.’20 The contemporary common law of real property was not just a museum, but a madhouse, and was so precisely because its continuous development had never been ruptured. Continuity was, therefore, the reason for the current archaic absurdities in English law which Maitland had long thought cried out for reform along modernising, rational lines.21 ‘It is we who are guilty of our own law…’22 Yet it was not something simply to be pilloried and regretted, though Maitland did both. It was also the reason why practising common lawyers were uniquely well qualified to research English legal history, working backwards ‘from the modern to the ancient, from the clear to the vague, from the known to the unknown’,23 albeit with the attendant risk of anachronistically reading present law back into the past. Dogmatic legal orthodoxy provided the intrinsically problematic but best starting point for the creation of historical heterodoxy. And when he sought in 1895 to explain in the ‘Introduction’ to the first edition of The History of English Law why he had decided to conclude the book in 1272, at the accession of Edward I,24 he did so in terms of legal continuity since that point: So continuous has been our English legal life during the last six centuries, that the law of the later middle ages has never been forgotten among us. It has never passed outside the cognizance of our courts and our practising lawyers. We have never had to disinter and reconstruct it in that laborious and tentative manner in which German historians of the present day have disinterred and reconstructed the law of medieval Germany. It has never been obliterated by a wholesale ‘reception’ of Roman Law. Blackstone, in order that he might expound the working law of his own day in an intelligible fashion, was forced at every turn to take back his readers to the middle ages, and even now, after all our reforms, our courts are still from time to time compelled to construe statutes of Edward I.’s day, and, were Parliament to repeal some of those statutes and provide no substitute, the whole edifice of our land law would fall down with a crash. Therefore a tradition, which is in the main a sound and truthful tradition, has been maintained about so much of English legal history as lies on this side of the reign of Edward I. … Its besetting sin is that of ­antedating the emergence of modern ideas. … But in the main it is truthful.25 20 21 22 23 24

25

‘German Civil Code’, CP, iii. 486. ‘Real Property’, CP, i. esp. 197–8; cf. ‘Why the History’, CP, i. 493. ‘Real Property’, CP, i. 194. CP, i. 493. The first period in his posthumously published The Constitutional History of England, ed. H. A. L. Fisher (Cambridge, 1908), a course of lectures originally delivered in the academic year 1887–1888, concluded with the death of Edward I. By shifting the end point for The History of English Law backwards from 1307 to 1272 he excluded the Edwardian statutes from consideration. F. Pollock and F. W. Maitland, The History of English Law before the Time of Edward I, 2nd ed., 2 vols., re-issued with a new introduction by S. F. C. Milsom, (Cambridge, 1968), i. civ. This paragraph is unchanged from the first edition of 1895. (Hereafter simply: Pollock and Maitland.) As already mentioned, most of Maitland’s fair handwritten copy of the first edition for the printer survives, in Cambridge, UL, MSS. Add. 6987–6994. It opens, MS. 6987, with Chapter II of the first edition

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Perhaps his customary caution slipped a little because he wrote the introduction last and was then within sight of finishing his biggest book. But here he appears far more positive (if still in a qualified way) in his assessment of common law’s continuous tradition – at least its continuous tradition since Edward I’s accession – than he had been when he had characterised it as a museum exhibit, the modern application of which occasionally produced insane consequences. In these sentences he reveals more overtly the assumptions of a practising lawyer. For both good and ill, the continuous ‘tradition’ which was ‘in the main truthful’ was fundamental to common law’s development. The ‘logic of authority’ traced doctrinal development – to use one of his favourite metaphors – downstream, but it was possible also to swim back up against the current of ‘authority’, following the ‘logic of evidence’. However, Maitland had not yet started to do so for the period during which in his view the mainly truthful tradition obtained, the period following Edward I’s accession. I now want to investigate much more closely Maitland’s understanding of that continuity, which could be explored by different logics in opposite directions. In particular I want to investigate how he thought ‘old principles and old phrases’ were ‘charged with new content’; and how the lawyer’s ‘logic of authority’ defined the resulting modern ‘dogma’ or ‘doctrine’. For in Maitland’s view, this provided the compromised but best prospect of pursuing an alternative evidential logic in the opposite direction. This was the conundrum which ‘we conceal … from ourselves under some phrase about “common law”’. There was nothing novel about his assessment of its importance. In English law it reached back long before Edward I’s reign, through the emphatic endorsement, in the aftermath of the Conquest, of the law then newly credited to Edward the Confessor, and thence to its pre-Conquest forebears: the laws of Cnut confirmed by Edward, of Edgar confirmed by Cnut,26 and ultimately (in terms of extant written evidence) the prologue to Alfred’s law code. It had been conventional in common law jurisprudence since the system’s very inception, in the late twelfth century. It is the point, for instance, of the compilation or ‘book of laws of England’ inserted by Roger of Howden into his Chronicle, arguably the first work of English history to be written by a civil servant, and completed by the end of the twelfth century. That ­compilation included the early twelfth-century apocryphal law code which purported to be the Leges Edwardi Confessoris endorsed by the conqueror, and also Glanvill. To this ‘book of laws of England’ were appended a few of Henry II’s assizes.27

26

27

(=Chapter III of the second edition), so it is impossible to ascertain whether Maitland made any lastminute changes to the introduction. In the absence of any evidence, my conjecture about when he wrote the introduction must remain just that. The date ‘2 November 1894. In festo animarum’ follows the final sentence of volume ii, which suggests that this was the last thing he wrote. G. Garnett, ‘Dunstan, Edgar, and the history of not-so-recent events’, in J. Barrau and D. Bates, eds., Lives, Identities and Histories in the Central Middle Ages. Essays presented to Elisabeth van Houts (Cambridge, 2021), 282–313, at 309. London, BL, MS. Royal 14. C.ii, fos. 226r–274r, with the assizes at 274r–276v.

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Maitland’s example of the evolution in interpretation of the so-called Statute of Merton – the distillation of its ‘true intent and meaning’ – is, however, very revealing, because he conceives of its having happened through the successive interpretations ‘of the judges of twenty generations’. In other words, he conceived of development in common law happening primarily through the successive interpretations of existing law, both case law and its intermittent statutory amendments, by judges in their reasoned judgments – what is conventionally termed judicial precedent. At this point in Maitland’s career, well before he began to edit Year Books, he does not appear to have realised that the case law refined or developed by successive judicial precedent was quite a modern phenomenon. It began to prevail only in the late sixteenth century, after the Year Books had died out, and been replaced by a new type of forensic reporting, which, unlike the Year Books, recorded reasoned judicial decisions.28 The Year Books, by contrast, had provided examples of tactics in counting and in pleading more generally, and had largely ignored the decisions of judges.29 Ironically, therefore, in Maitland’s inaugural lecture his understanding of the nature of continuity in common law was in itself, by his definition, characteristically lawyerly. He simply assumed that judges’ formal forensic interpretations of common law and of the statutes which from time to time amended it had been the engine of the development of common law dogma for at least six centuries. With a lawyerly anachronism which study of the Year Books would render demonstrable, he thereby imposed a modern view of precedent’s role on common law since what he identified as its inception. He seems to have started to realise that this might be anachronistic when he came to edit his first Year Book,30 dating from early in the reign of Edward II, and therefore a few decades this side of his chosen dividing line, the accession of Edward I. It was only at this stage in his career that he began to investigate closely sources of forensic practice from an early point in the continuum of the mainly ‘sound and truthful tradition’ which had, in his view, followed 1272. As he prepared that Year Book for publication, he wrote, in the event poignantly: ‘[I] shall only have scratched the 28

29 30

S. F. C. Milsom, Historical Foundations of the Common Law, 2nd ed. (London, 1981), 70–1; L. W. Abbott, Law Reporting in England 1485–1585 (London, 1973), 210, 219, 255; J. H. Baker, The Law’s Two Bodies (Oxford, 2001), 10, 67–70, 81–3; Sir John [J. H.] Baker, An Introduction to English Legal History, 5th ed. (Oxford, 2019), 209–10; ‘Why the History of English Law has not been finished’, Collected Papers, iii. 1157–60; Sir John [J. H.] Baker, The Oxford History of the Laws of England, VI., 1483–1558 (Oxford, 2003), 385–96, 467–72, 486–9; The Reports of Sir John Spelman, ed. J. H. Baker, 2 vols., Selden Soc., xciii, xciv (1977–1978), xciv. 152–63. Baker, ‘Case-Law’, Collected Papers, ii. 537–68, at 564–5; Baker, Introduction, 83–9; Milsom, Foundations, 42–8. Milsom, ‘F. W. Maitland’, 276; Milsom, Natural History, xiv, citing Maitland, ‘Introduction’ to Year Books of Edward II., 1 & 2 Edward II., ad 1307–1309, ed. F. W. Maitland, Selden Soc., xvii (1903), xvii–xix; cf. S. F. C. Milsom, ‘Maitland’, Cambridge Law Journal, lx (2001), 265–70, at 269–70 (Address delivered at the unveiling of a memorial tablet for Maitland in Westminster Abbey). For further doubts, see Year Books of Edward II., 3 Edward II. ad 1309–1310, ed. F. W. Maitland, Selden Soc., xx (1905), x, xiv, lxvi–lxx; T. F. T. Plucknett, A Concise History of the Common Law, 5th ed. (London, 1956), 403.

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surface if I live to the age of Methusalem’.31 He was dead within four years; yet he had already begun to grasp that his assumption of the unchanging operation of ‘the logic of authority’ over six centuries might have been misconceived. Maitland might have failed until too late to understand how early records of forensic proceedings revealed processes of legal development which had nothing to do with judicial precedent, and which were more fundamental than occasional statutory tweaks. Nevertheless, he had always accepted the reality of legal change or development, and did not deem it incompatible with the continuity which had traditionally been considered intrinsic to English law since long before the initiation of common law procedures in Henry II’s reign. English law’s continuity was not simply an illusion. It might be mythical, but myths can and do constitute important legal realities. What mattered was that the various processes of development, whatever they had been, could be interpreted as a, perhaps the, manifestation of that continuity, albeit not continuity as conventionally understood by English common lawyers. As Maitland was well aware, common law, the law administered by the king’s justices in the king’s courts, had since its inception been characterised as ancient custom(s), the consuetudines Angliae of Glanvill and Bracton.32 These authorities, respectively dating from the late twelfth and early thirteenth centuries, described the law as unwritten not because it was really not written down anywhere, but because, according to learned civilians who were by their time considered to set the terms of all jurisprudential analysis, law which was not Roman or canon was customary, and therefore by Roman definition not written.33 Local customs, such as Kentish gavelkind (restricted to that shire),34 Borough English (apparently originating in Nottingham, but subsequently applied in certain other towns and many rural manors),35 copyhold tenure (much more widespread, but always confined to particular manors),36 or, to give a particular instance typical of many, the right of the prior of Coventry to hold a market every Friday at Priorshalf,37 were 31 32

33 34

35

36 37

Letters, i. no. 348 (14 Feb. 1903). Sir John [J. H.] Baker, ‘Prescriptive customs in English Law 1300–1800’, in H. Dondorp, D. Ibbetson, E. J. H. Schrage, eds., Limitation and Prescription. A Comparative Legal History (Berlin, 2019), 147–87, at 150–1. Ultimately dependent on Dig. 1. 3. 32. Statutes of the Realm, ed. A. Luders et al., i: 1101–1301 (London, 1810), 223–5; Pollock and Maitland i. 186–8; P. A. Brand, ‘Local custom in the early Common Law’, in P. Stafford, J. L. Nelson and J. Martindale, eds., Law, Laity, and Solidarities: Essays in Honour of Susan Reynolds (Manchester, 2001), 150–9, at 157–8. Pollock and Maitland i. 295–6, 647–8; ii. 330; G. R. Corner, ‘On the Custom of Borough English’, Proceedings of the Suffolk Institute of Archaeology and Natural History, ii (1857), 227–41; G. R. Corner, ‘On the Custom of Borough English, as existing in the County of Sussex’, Sussex Archaeological Society Collections, vi (1853), 164–89. T. Littleton, Tenures novelli, s. 73. Year Books of Edward II., Year Books 2 & 3 Edward II., ad 1308–1309 and 1309–1310, ed. F. W. Maitland, Selden Soc., xix (1904), 71 (1309): J. H. Baker and S. F. C. Milsom, Sources of English Legal History. Private Law to 1750, 2nd ed. (Oxford, 2010), 669–71.

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territorially delimited exceptions38 to the general, or common, customs which obtained throughout the kingdom, or land: the consuetudines Angliae, or lex terre of Magna Carta (1225) c. 29.39 As this latter, apparently novel, coinage40 suggested, those general customs, that law, too, was territorially defined; but obviously it was not a delimited exception to the law, it was the very law itself. The phrases ‘law of the land’, ‘law and custom of the realm’, and ‘custom of the realm’ were used, apparently interchangeably, in thirteenth-century judgments.41 In the (much later) words of Sir Edward Coke, ‘A custom cannot be alleged generally within the kingdom of England: for that is the common law’.42 Statutes amended the operation of both general and local customs from time to time.43 According to Christopher St German c. 1530, a (local) custom contrary to statute could not prevail in law, though it might in conscience.44 The general custom, or law, endured. From the late thirteenth century the 1225 re-issue of Magna Carta was treated as a juristic Janus. It was deemed the first extant statute, and as it were the foundation for all subsequent statutes in the (by and large) chronologically arranged collections. Yet it was also treated as a statutory summation and endorsement of the customary common law of the kingdom already ancient in 1225, together with certain particular, exceptional ‘ancient liberties and free customs’ of some cities, boroughs, towns, and ports (c. 9). Both categories of custom were considered to have transcended the Conquest, indeed to be immemorial, which meant, or came to mean, to have already existed prior to the limit of legal memory, eventually set at Richard I’s coronation, 3 September 1189.45 For a practice to be classified as custom it had to be immemorial in what became this legal sense.46 If it were not, it was not custom, not law,47 but mere usage. Customs could not, unlike the particular liberties confirmed in this same chapter of Magna Carta, have originated in royal grants. 38

39 40

41

42 43

44 45

46 47

In several shires it was the custom that a plough team could be turned on the adjoining land, whether or not that land had been sown. It was however claimed that this custom extended to ‘all the counties in England’: Baker and Milsom, Sources, 358 (Year Book Pas. 22 Edw. IV, fo. 8, pl. 24). This elided cc. 39 and 40 of Magna Carta 1215. It is used in the equivalent chapter in the Articles of the Barons, c. 29, probably finalised on 10 June 1215, and Magna Carta (1215), c. 39: J. C. Holt, Magna Carta, 3rd ed., intro. G. Garnett and J. Hudson, (Cambridge, 2015), 25–6, 364, 388. P. A. Brand, ‘Reasoned judgments in the English medieval Common Law 1270–1307’, in W. Hamilton Bryson and S. Dauchy, eds., Ratio Decidendi: Guiding Principles of Judicial Decisions, vol. I: Case Law (Berlin, 2006), 55–71, at 66–7. Co. Litt. 110b. See Bereford CJ in 1312: Year Books of Edward II., 5 Edward II., ad 1311–1312, ed. W. C. Bolland, Selden Soc., xxxi (1915), 177; Year Books of Edward II., 5 Edward II., ad 1312, ed. W. C. Craddock, Selden Soc., xxxiii (1916), 225; Milsom, Foundations, 177, 417. St German’s Doctor and Student, T. F. T. Plucknett and J. L. Barton, eds., Selden Soc., xci (1974), 156–7. Maitland, ‘Why the History’, CP, i. 480–1; Plucknett, Concise History, 312; P. A. Brand, ‘Limitation and prescription in the early Common Law (to c. 1307)’, in Dondorp et al., eds., Limitation and Prescription, 125–45, at 127. Baker, ‘Prescriptive customs’, 155. Year Book Pas. 27 Hen. VIII, fo. 7, pl. 22 (1535): Baker and Milsom, Sources, 129.

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A custom’s beginning might be as obscure as the source of the Nile, said Sir John Davies in 1608, but it flows on regardless.48 That was by definition true of all customs, including the general or common custom, that is to say, the common law of the land.49 Its origin was deemed to be immemorial not just in the technical sense of preceding the limit of legal memory, 3 September 1189, but in a literal sense too. A celebrated Year Book entry for 1470 reports that a serjeant had asserted in court that common law was coaeval with the world.50 The customary common law might have been endorsed by kings, most notably William the Conqueror (with the law of King Edward) and Henry III (in the authoritative version of Magna Carta). It was the custom of the king’s court, as Glanvill emphasised. Intermittently it was amended in statutes issued by kings in Parliament. But by definition it could not in origin have been royal law, precisely because it was immemorial custom. If it had not originally been royal, then its source could not be other than in some sense popular – hence the extreme suggestion that it had come into being with Creation, when God made man. According to Sir John Fortescue, writing in the late fifteenth century, the band of Trojan refugees who had ‘instituted’ the English kingdom under the rule of their leader Brutus ‘had ordained the same realm to be ruled and governed by such laws as they would all assent to’.51 It was this collective institution and assent that made the kingdom a dominium politicum et regale, ‘continuously ruled by the same customs as it is now’,52 as distinct from an unalloyed dominium regale. This potentially very significant implication of traditional common law doctrine for political thinking was not, however, to be actively explored until the early seventeenth century. Then it was, to epoch-making political effect, as lawyers sought to justify the claims of Parliament, and particularly of the House of Commons, against James I and Charles I. Maitland was well aware of all this. His notion of legal development or continuity depended on it, and reiterated it, to a point. However, his single stream reached back only as far as the Conquest, which had marked the confluence of two rivulets, the Frankish and the Anglo-Saxon.53 And as the paragraph which I have quoted

48

49

50 51

52 53

Case of Tanistry (1608), Sir John Davies, Le primer report cases & matters en ley resolues & adiudges en les courts del roy en Ireland (Dublin, 1615), fos. 28v–42r, at 32r, quoted by Baker, ‘Prescriptive customs’, 166 n. 104. Beaulieu v. Finglam (1401); Horslow’s Case (1443); Rich v Kneeland (1613); Milton’s Case (1668) (respectively, Baker and Milsom, Sources, 610, 606, 615 n. 28, 275); Co Litt 110b, quoted by Baker, ‘Prescriptive customs’, 151 n. 24. Serjeant Catesby, in Wallyng v. Meger (1470): Year Book Pas. 10 Edw. IV, fo. 4, pl. 9. Sir John Fortescue, Kt., The Governance of England: Otherwise Called, The Difference between an Absolute and a Limited Monarchy, ed. C. Plummer (Oxford, 1885), 112; Sir John Fortescue, De ­laudibus legum Anglie, ed. S. B. Chrimes (Cambridge, 1942), 24, 32, 40, 86. Fortescue, De laudibus, 38. F. W. Maitland, ‘English Law (History)’, Encyclopaedia Britannica, 11th ed. (Cambridge, 1910–11), ix. 600. As noticed by J. Hudson, ‘Maitland and Anglo-Norman Law’, in J. Hudson, ed., The History of English Law: Centenary Essays on ‘Pollock and Maitland’ (Oxford, 1996), 21–46, at 22, Maitland had

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from the introduction to The History of English Law makes very clear,54 his focus in the great book was not on the immediate aftermath of the Conquest, but on the period of just over a century prior to Edward I’s accession, the period when Henry II’s new procedures were introduced and proliferated, when the amount of surviving documentation of royal justice suddenly burgeoned, and when Glanvill and Bracton were written. That Bracton marked, as it were, a summation of this formative century accounts for the importance Maitland accorded to the book. In Maitland’s view this was the period when the system had been created which was soon to be amended by Edward I’s statutes, and which thus amended was still to an extraordinary extent in place at the close of the nineteenth century. It was ripe for historical reassessment at that point because much of the relevant source material had been edited and published during that century. In that respect the Angevin period was quite different from that which immediately followed, because the editing of the Year Books had scarcely been begun. But Maitland did not concentrate on the Angevin period just because many of the sources for it had recently become available in modern scholarly editions.55 He also did so because he disagreed with what may be termed traditional common law historical doctrine. In his view, the Angevin century had been foundational in a sense that no earlier period had been.56 He and Pollock had at one time contemplated a third, final section for the book, on ‘the Norman time’, which would have consisted of ‘some speculations as to the true intent and meaning of the Domesday Survey’. It is striking that here he applies to the aim of historical investigation the very phrase which in his inaugural lecture had characterised the process of evolution in the common law.57 The echo is probably unconscious: ‘the true intent and meaning’ established by the ‘logic of evidence’ must by his own definition be very different from that produced by the evolution of common law doctrine, the ‘logic of authority’. Nevertheless, it underlines that the two logics produced true intents and meanings of two distinct types. The initial scheme for a more speculative Norman section was dropped. The nature of the publications which grew out of the preparatory work for it – the most substantial being Domesday Book and Beyond – shows that it would have had very little in common with orthodox common law historical doctrine.58 That view is confirmed by its being very clear that the envisaged third section would have followed, not preceded, that which treated the Angevin century, ‘for we hold with Mr Seebohm that the

54 55 56 57 58

previously pronounced the metaphor of a confluence to be deceptive: Pollock and Maitland, i. 79, cf. i. c–ci. A more compressed and popular genre evidently justified its resurrection. Earlier in this volume, 71. Pollock and Maitland, i. p. cv. Pollock and Maitland, ii. p. 673. Earlier in this volume, 67. Pollock and Maitland, 1st ed. (1895), i. pp. xxxv–xxxvi; F. W. Maitland, Domesday Book and Beyond. Three Essays in the Early History of England (Cambridge, 1897), xix; Maitland, ‘Why the History’, CP, i. 482; Hudson, ‘Anglo-Norman Law’, 28 n. 32, 30–1, n. 43.

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study of that enigmatical record [Domesday Book] should come after and not before the study of less obscure texts’. They had intended to trace the logic of evidence upstream, against the current of authority, with the aim of speculating about the true intent and meaning of an earlier and therefore more enigmatic text than those which formed the evidence for the Angevin century. The History of English Law began with a brief, even peremptory, survey of Anglo-Saxon law, the only bit of the book written by Pollock. Had the original plan been followed, the book would have concluded with a vastly more substantial treatment of the same period, presumably by Maitland. The book would have reverted to its beginning. Maitland’s severance with orthodox common law historical doctrine is underscored in his occasional comments on Sir Edward Coke, the most influential common lawyer among those who ended up ranged against James I and Charles I, and widely acknowledged as the most important common law jurist. In a few Maitland appeared to voice orthodox deference: ‘English mediaeval doctrine has its wonderful renaissance in the Elizabethan courts and the pages of Sir Edward Coke’;59 Coke was ‘an incarnate national dogmatism tenacious of continuous life’, ‘the common law took flesh in the person of Edward Coke’.60 But for Maitland the terms doctrine and dogma were perhaps not unalloyedly positive. Elsewhere he seems archly ambiguous: ‘[W]e are hardly out of the Middle Ages till Coke has dogmatized its results’.61 ‘That wonderful Edward Coke was loose. The medieval tradition was safe in his hands.’62 This hinted more overtly at a disapproval which was not just symptomatic of Maitland’s distaste for the sixteenth century in general,63 but for Coke in particular. ‘We were having a little Renaissance of our own: or a gothic revival if you please’,64 a phrase with obvious resonances for someone writing in Victorian England. That disapproval betrays a revealing blind spot. In Maitland’s view, Coke’s ‘habit’ had been to ‘devour’ the contents of his carefully selected sources ‘with uncritical voracity’.65 To be specific, Coke’s lack of discrimination was evident chiefly in his use of historiographical and other sources bearing on periods antecedent to that for which extensive legal records first survived – the Angevin century which Maitland had made the primary focus of The History of English Law. For instance, ‘the imperious dogmatist[’s]’ turning to Geoffrey of Monmouth and his ilk for evidence of the common law’s supposed pre-Roman history could not be accounted a 59 60 61

62 63 64 65

‘Records of the Honourable Society of Lincoln’s Inn’, CP, iii. 78–86, at 79. Maitland, ‘English Law (History)’, Encyclopaedia Britannica, ix. 605; cf. ‘The Corporation Sole’, CP, iii. 210–43, at 218: ‘the great dogmatist’. A lost letter to Holdsworth, quoted in W. S. Holdsworth, A History of English Law, 7th ed., 17 vols. (London, 1956–1972), v. 489; cf. ‘The Seisin of Chattels’, CP, i. 329–57, at 354. In Constitutional History, 142, it is ‘the law of the later Middle Ages’. F. W. Maitland, English Law and the Renaissance (The Rede Lecture for 1901) (Cambridge 1901), 29. Letters, i. 233 (29 Dec. 1898). Maitland, English Law and the Renaissance, 29. The Mirror of Justices, ed. W.J. Whittaker, intro. F. W. Maitland, Selden Soc., vii (1895), xi; cf. Letters, i. nos. 3 (11 Feb. 1877), 168 (15 Aug. 1895).

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success: ‘When he was on unfamiliar ground Sir Edward Coke was, of all mankind, the most credulous. There was no fable, no forgery, that he would not endorse; and a good many medieval legends and medieval lies passed into currency with his name upon their backs.’66 The problem was not confined to his use of fantastical historical writing. Thus, for instance, Coke accepted the very late thirteenth-century Mirror of Justices as reliable evidence for legal practice in the reigns of Alfred and Arthur,67 because that was what it purported to be, whereas for Maitland the book should be categorised as ‘would-be antiquarianism’,68 ‘not even false history’.69 Coke was not just credulous, he was also shambolic: ‘the incarnate common law … shovels out his enormous learning in vast disorderly heaps’.70 He had turned to the newly printed edition of Bracton (1569) to help him ‘to arrange his ideas, as any one may see who looks at the margin Coke’s books’.71 Self-evidently, Bracton had not got him very far. ‘If we want scholasticism at its best, we prefer Thomas Aquinas to Lord Coke.’72 Aquinas, Maitland implies, had used a scalpel rather than a spade, but had been engaged in the same sort of activity. In the inaugural lecture he characterised English legal education in the later middle ages and the Tudor period as ‘not academic’ but ‘scholastic’.73 The comparison between Aquinas and Coke is revealing because it is so misconceived. Coke’s jurisprudence might plausibly be characterised as scholastic only in the sense that some of it is glossatorial in form.74 Otherwise it is so different from Aquinas’s rigorously organised exposition by quaestio as to render any such juxtaposition meaningless. Coke was not crudely attempting to conduct a similar intellectual exercise. In truth it is Maitland who appears credulous, because he seems to take Coke’s whimsical artfulness at face value. In his lecture Maitland asked a rhetorical question: whence did Blackstone get the ‘theory’ which made it possible for him to draw his picture of English law? From Coke? [Certainly not.] Coke had no such theory, and because he had none was utterly unable to give any connected account of [our] the law that he knew so well.75

Maitland’s final thoughts, just as he went to press, were to tone down the instinctive disapproval which he is likely to have voiced when he delivered the lecture;

66 67 68 69 70 71 72 73 74 75

‘The Laws of the Anglo-Saxons’, CP, iii. 447–73, at 453. The Mirror of Justices; The Reports of Sir Edward Coke, Knt. In Thirteen Parts, J. H. Thomas and J. F. Fraser, eds., 13 Parts in 6 vols. (London, 1826), 9 Rep., iii, xi. Mirror of Justices, xxvi. Pollock and Maitland, i. 28. ‘The Outlines of English Legal History, 560–1600’, CP, ii. 417–96, at 484. Maitland, English Law and the Renaissance, n. 55. ‘Real Property’, CP, i. 190. Maitland, ‘Why the History’, CP, i. 487–8. Cf. Holt, Magna Carta, 39: Coke was ‘the last great medieval commentator on the common law of England’. Cambridge, UL, MS. Add. 7002, fo. 13r. Again, square brackets signify late deletions, and italics late additions.

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it remains manifest nevertheless. Coke, that blundering jurisprudential navvy, was ‘utterly’ incapable of giving a ‘connected account’ of English law. Maitland has a justified reputation as a scherzando ironist. Yet when it came to Coke, this quality appears quite to have deserted him. Why? Coke’s invocations of historiographical and other evidence for pre-Angevin English law archly drew on a very long jurisprudential tradition, reaching back at least as far as the early twelfth century, when collections of ancient English laws – some genuine, some apocryphal – had been compiled. ‘I will not examine these things in a Quo Warranto, the ground thereof I thinke was best knowne to the authors and writers of them.’76 They were deployed, tongue in cheek, primarily in the meandering prefaces to his Reports, to reinforce for an unprecedentedly wide lay audience a legal position which was very much focussed on present day, early seventeenth-century, legal imperatives. It was intended to have current political implications, and was widely understood to do so – hence Charles I’s instruction in 1634 that Coke’s study be searched and his as yet unprinted Institutes confiscated while Coke lay on his deathbed upstairs.77 Coke’s interpretation of common law played a large part in setting the terms of current political debate. Legal principles were thereby illustrated by selective, highly imaginative reading of historiographical and other sources for a period long prior to that for which formal legal records survived, a period prior to the limit of legal memory, and therefore a period onto which could be projected all sorts of principles deemed in the seventeenth century intrinsic to a common law, or general custom, which in origin was by definition not royal, but popular. Maitland appears to have been tone deaf to these resonances; as late as 1903 he disclaimed any knowledge ‘at first hand of Coke’s Reports’.78 This was not quite true. He was already demonstrably well acquainted with some of the more celebrated ones in 1877,79 and his comments about the renaissance in the Elizabethan courts and Coke’s pages cannot allude to anything else, given that the cases Coke reported began in the 1570s.80 But there is no doubt that Maitland was far more familiar with Coke’s First Institute on Littleton than he was with the Reports, or with the other Institutes. He took at face value Coke’s supremely influential example of the ruthless subordination of history to the ‘logic of authority’, and was deeply offended by it. Despite Maitland’s occasional nods in the direction of common law orthodoxy, he evidently found it difficult to comprehend the reverence of his professional 76 77

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3 Rep., xiv. G. Garnett, ‘“The ould fields”: law and history in the Prefaces to Sir Edward Coke’s Reports’, Journal of Legal History, xxxiv (2013), 245–84; G. Garnett, ‘Sir Edward Coke’s resurrection of Magna Carta’, in L. Goldman, ed., Magna Carta: History. Context, and Influence. Papers Delivered at Peking University on the 800th Anniversary of Magna Carta (London, 2018), 51–60. Letters, i. 359 (7 Jul. 1903). Letters, i. 3 (11 Feb. 1877). Earlier in this volume, 78.

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colleagues for Coke. This was for two reasons. First, he found distasteful Coke’s studied expository disorder in the glossatorial ‘mazes’81 of the Institutes, and is likely to have reacted similarly to the prefaces to the Reports too. He failed to recognise that the disorder and the whimsy were carefully contrived. It is striking to discover that S. F. C. Milsom likewise once characterised Coke as ‘a mean and untidy man’.82 Second, Coke did indeed, as Maitland repeatedly stated, embody the ‘logic of authority’ – something Milsom immediately went on, in effect, to concede: ‘if the books tell us that Sir Edward Coke distorted his authorities to present new ideas as ancient principles, or if the reader thinks he is entitled to despise the shifts employed, it is well to remember that this is how the common law has lived…’83 Coke’s Reports exemplified a new type of forensic reporting which focussed on judicial precedent,84 according to Maitland the core of the continuity in common law embodied in the ‘logic of authority’. In this respect law as custom was developed or refined in the successive precedents set by judges, and recorded by law reporters. And Coke failed to make the slightest gesture towards acknowledging a countervailing ‘logic of evidence’; indeed he made a provocative point of not doing so. Maitland dismissed as devoid of reliable evidential support the traditional doctrine of continuity over the Conquest and back into pre-Danish, pre-Saxon, ultimately even pre-Roman antiquity, the already traditional doctrine of which Coke became the pre-eminent expounder.85 With a fresh twist it had very recently been reiterated in the introduction to a new edition of John Reeves’ History of the English Law.86 Maitland therefore had good cause to know that there was plenty of life in the old dog yet. Coke’s point was simple, and impeccably orthodox, if often expressed with an oracular panache uncharacteristic of a jurist, and quite absent from the introduction to the new edition of Reeves. Legal rules and principles, developed and refined over many centuries – putatively several millennia – of forensic argument, 81 82 83 84 85 86

Letters, i. 168. S. F. C. Milsom, Historical Foundations of the Common Law, 1st ed. (London, 1969), 52. The criticism did not survive in the second edition. This passage also failed to survive in the second edition. Garnett, ‘Ould fields’, 252–3. It seems likely that Coke is the primary, unnamed target of the jibe in Pollock and Maitland, i. p. xcix. J. Reeves, History of the English Law, from the Time of the Romans to the End of the Reign of Elizabeth, ed. and intro. W. F. Finlanson, 3 vols. (London, 1869), 1st ed. 1783–1784. In the substantial new introduction to a radical rearrangement of Reeves’ text, Finlanson argued that the substance of English law was not in origin British or Saxon, but Roman. It had survived from the time of Roman rule: i. pp. xxxviii–xliii, xlvii, li–lvi, etc. Reeves’ original book had mounted no such case. Finlanson added a novel twist, in the shape of Roman influence, to an orthodoxy which had long antedated Reeves, but which Reeves himself had carefully eschewed. The importance it attributed to Rome would have roused the ire of anyone brought up in the Cokean tradition, but it had more in common with that tradition than Reeves had done. Maitland regarded Reeves’ original work as outdated, though he admired its careful scholarship: ‘Why the History’, CP, i. 483; ‘English Legal History’, ii. 6, 9. When he pilloried – Pollock and Maitland, i. p. xcix – attempts to suggest that the earliest surviving Welsh laws revealed the Celtic roots of English law, he may have been thinking of Finlanson’s introduction to Reeves, i. p. xxxviii, among others.

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and occasionally and in part embodied or adjusted in written statute, first extant in Magna Carta, were not alleged facts or even myths which could be disproved by empirical historical investigation.87 Coke’s stance is legally unexceptionable. In analogous fashion, a given immemorial custom – copyhold, for instance – should not be challenged on the grounds that it could not already have obtained at the limit of legal memory in 1189.88 But Coke’s conventional dogmatic or doctrinal position did not bar him from adducing selected historical evidence to corroborate the existence of legal rules or principles. He had done so with a playful implausibility. It was this attitude, so contrary to ‘the logic of evidence’, which offended Maitland. ‘If we try to make history the handmaid of dogma she will soon cease to be history.’89 For Coke, the conundrum which Maitland later identified at the core of his inaugural lecture simply did not exist. There was only one legal logic. Yet the unsurprising irony is that as a lawyer, Maitland himself was not immune. Far from it. As Milsom demonstrated, Maitland’s understanding of the history of common law in what he defined as its first century was distorted by Bracton, a Romanising text from close to the end of that century.90 Maitland’s understanding of the generation of a system which he dated to Henry II’s reign was shaped by the retrospective imposition of a distorting Romanesque template, one which facilitated the carrying back of nineteenth-century conceptions of property into the twelfth century.91 But as Maitland himself had said in his inaugural lecture, keeping the two contrapuntal logics in harmony was well-nigh impossible, yet also the only way of writing a historically convincing history of the common law – one which, by contrast with the approach which Maitland correctly regarded as Cokean, paid due regard to the ‘logic of evidence’. What the ‘logic of evidence’ demonstrates is the continuity which results from the peculiar nature of English legal development, the ‘logic of authority’. The ‘logic of authority’ manifested itself primarily in forensic and therefore oral contexts, and was deemed to flow ultimately from a far distant past, immemorial in a legal sense, and also in a literal one. This is what makes English common law so different from other legal systems, and makes continuity intrinsic to it. Although the ‘logic of authority’ was by definition present-minded, it adduced justifications which reached back long into the past. Inventive novelties could thus be justified by reference to a period for which records of legal practice were conveniently thin. Habeas corpus is a case in point,92 but not the only one with important current political implications in the early modern period, and indeed later. 87 88 89 90 91 92

See the luminous discussion in Sir John [J. H.] Baker, The Reinvention of Magna Carta 1216–1616 (Cambridge, 2017), 443–4. Baker, ‘Prescriptive customs’, 162–3. Maitland, ‘Why the History’, CP, i. 492; cf. 491: ‘A mixture of legal dogma and legal history is in general an unsatisfactory compound.’ Milsom, ‘F. W. Maitland’, 276–7; Milsom, ‘Maitland’, 270; Milsom, Natural History, xiv–xv, xxii. Milsom, ‘Maitland’, 269. Garnett, ‘Coke’s resurrection of Magna Carta’, passim; Baker, Reinvention, 250, 261, 308–10, 347, 446.

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This is why the blanket terms coined by modern historians to characterise this retrospective fixation – ‘common law mind’, and with particular reference to its political implications, ‘ancient constitution’ – are misleading.93 They give the impression that the common law for Coke and his contemporaries was static as well as crudely tendentious in terms of its invocation of historical evidence. In truth its present-mindedness rendered its use of history innovative, rather than fixed and inflexible. On Maitland’s own ‘logic of evidence’, he may have been right to dismiss the Cokean exploitation of history as wilfully credulous, as dogmatic. What he did not see was that Coke was invoking history consciously to reinforce the ‘logic of authority’, partly with the aim of communicating that message effectively to a wide, unlearned lay audience. It was this historically formulated ‘logic of authority’ which made the common law so potent a political language in seventeenth-century England, and long after, wherever English common law was exported. Regardless of Maitland’s blind spot where Coke is concerned, his deeper insight into the significance of a continuity common to both his apparently almost antithetical legal logics has important implications for historians who seek to assess the role of English common law in political thinking. Although he may have been unduly pessimistic in suggesting that all historians who sought to write about common law needed to be trained in that law – he himself wobbled slightly on the issue94 – his insight could only have been vouchsafed to one who was. Even without the advantage of such training, however, the insight is one that historians of Anglophone political thought cannot ignore. It has been curiously neglected, despite Maitland’s still being universally acknowledged as the canonical authority on the history of common law, and despite the oracular significance widely accorded to his statement about the two logics. Perhaps it has been neglected because it makes sense only if one understands the peculiar nature of English legal development. Yet such an understanding is a prerequisite for writing any sort of history of common law, and most particularly, of the role that law has played in political thinking over the centuries, in England and further afield, wherever English common law has spread. 93

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Classically, Pocock, Ancient Constitution and the Feudal Law. Among several sequels and tweaks: Glenn Burgess, The Politics of the Ancient Constitution. An Introduction to English Political Thought 1603–1642 (Basingstoke, 1992); Alan Cromartie, The Constitutionalist Revolution. An Essay on the History of England 1450–1642 (Cambridge, 2006). Maitland, ‘Why the History’, CP, i. 493.

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4 Christian Time and the Commonwealth in Early Modern Political Thought Sarah Mortimer

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How does the commonwealth, the human city, fit into the Christian story of Fall and redemption? Answers to this question would, in the early modern period, play an important part in determining what the commonwealth might mean, what purposes it might serve, and how it would relate to the Church and to human salvation. On the most basic level, early modern Europeans tended to agree that the commonwealth must be understood within the wider drama of the human race, a drama of creation, sin and redemption through Christ. Political power, for them, was part of the human condition after the Fall, in this present time when human beings had been banished from paradise, and before the final reckoning when Christ would come again in glory to judge the living and the dead. Its purpose was seen not only as to ensure peace and security, but also to enable human beings to mitigate some of the effects of the Fall and even to help provide the context in which people could be saved. The commonwealth had to be fitted into Christian time, but Christianity proved to be quite flexible and there were ways to adapt Christian time to find space for the commonwealth. Moreover, the ways in which this space was opened up would themselves shape how people understood politics, how they saw the meaning of the political community. Christian time remained the wider, cosmic context for human life and by paying attention to how that time was understood we can gain fresh insight into some of the central themes of early modern political thought. In the early modern period, it became increasingly common to understand the commonwealth using the language of natural law – and this move generated a series of questions about the relationship between political thought, nature and the Christian narrative.1 Most fundamentally, any appeal to natural law suggested that there were principles of (human) nature which were both universal and relevant to 1

On the importance of natural law in early modern political thinking see in particular Q. Skinner, The  Foundations of Modern Political Thought, 2 vols. (Cambridge, 1978); H. Höpfl, Jesuit Political Thought: The Society of Jesus and the State, c. 1540–1630 (Cambridge, 2004); A. S. Brett,

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Christians, yet the Christian theological narrative suggested that the human condition was not static and eternal but had altered through time – and would be transformed in the future. To invoke the law of nature was therefore to invite reflection on just what ‘nature’ might mean within a Christian scheme, and how far any laws or principles derived from it could be relevant within societies which had embraced the gospel. These were pressing issues in early modern Europe, where the weight of sin and the expectation of redemption, even of impending apocalypse, could seem to undermine the importance of human commonwealths in the here and now.2 Early modern writers and theologians came to see that if they were to make use of nature as a condition or a set of laws, especially in analysing the commonwealth, then they needed to show how it fitted into a Christian scheme framed by the Fall and the final judgement. As John Pocock has shown, Thomas Hobbes was well aware of this dilemma, and set the natural law doctrine of Leviathan (1651) carefully within his own scheme of Biblical history.3 But Hobbes was not the only scholar anxious to establish the relationship between natural law and Christian time, and his argument built upon a longstanding debate. That debate crossed the confessional divide, although authors from Protestant and Catholic traditions brought different emphases to their studies of nature, natural law and Christian history. Martin Luther and later Protestants emphasised the crushing effect of the Fall on human nature, and the importance of the Bible in giving to people the guidance they needed to construct functioning societies. On this reading, natural law and, crucially, the revelation in Scripture, gave to men a series of rules and principles which they could use to order their common life and help to build the faith of the people. Those principles were expressed most clearly in the Ten Commandments, where God ordered his people, but especially their rulers, to destroy idolatry, cleanse their lands from all superstition, and educate their people in the Word of God. Although people could not be saved by their works or their actions, only by their faith, it was still important for rulers to direct their actions towards creating godly commonwealths and anticipating the kingdom of Christ. One of the classic texts of this genre was Martin Bucer’s De Regno Christi (1551), in which he urged the young King Edward VI to remodel England into a true kingdom of Christ.

2

3

Changes of State. Nature and the Limits of the City in early modern Natural Law (Princeton, 2011). The relationship between natural law and Christianity is explored in more detail in Sarah Mortimer, Reformation, Resistance, and Reason of State 1517–1625 (Oxford, 2021). On apocalyptic thinking see, for example, R. Barnes, ‘Reforming time’, in Ulinka Rublack, ed., The Oxford Handbook of the Protestant Reformations (Oxford, 2016); T. Kaufmann, ‘Freedom and apocalyptic thinking in early modern Lutheranism’, in Q. Skinner and M. Van Gelderen, eds., Freedom and the Construction of Europe (Cambridge, 2013); B. McGinn, ‘Wrestling with the Millenium: early modern Catholic exegesis of Apocalypse 20’, in A. Amanat and M. Bernhardsson, eds., Imagining the End: Visions of Apocalypse from the Ancient Middle East to Modern America (London, 2002). John G. A. Pocock, ‘Time, history and eschatology in the thought of Thomas Hobbes’, in Politics, Language and Time: Essays in Political Thought and History (London, 1972), 148–201.

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The Catholic view was somewhat different; Catholic authors tended to suggest that civil power existed to fulfil a natural purpose, here on earth, and that it was different from the Church which promoted a spiritual end, beyond the confines of this world. Given their Christian commitments, they were careful to make clear that the natural end was never enough for human beings, that people desired spiritual fulfilment and looked to the Church to guide them and their civil rulers. This argument was made most clearly by those theologians who used Thomas Aquinas’ works to defend and explain their distinction between the spiritual and the natural, especially when they found themselves defending the authority of the Roman See. By the 1580s, the leading exponents of papal power were commonly arguing that the spiritual power wielded by the pope came to him directly, having been given to St Peter by Christ himself. Cardinal Robert Bellarmine was a particularly articulate and sophisticated exponent of this position, combining a theological and historical argument to show the superiority of the see of Rome. He saw the Church’s authority as based on an historical event, at a specific moment in the past, and for him this helped explain why the power exercised by the church in Christian lands was different from that religious authority among the Israelites, or the Romans, or any people living according to natural law alone. It also helped to explain why the pope could depose or excommunicate rulers, in situations where a monarch was endangering his people’s souls.4 The religious and political conflicts of the generations after the Reformation sparked some of the most intense discussion of these points, especially towards the end of the sixteenth century. Nowhere was this more obvious than in France, where the murder of Henry III in 1589 left the Protestant Henry of Navarre battling Catholic opponents of his accession. Here a number of authors, on both sides of the confessional divide, sought explicitly to place the origins of the commonwealth within a framework of Christian time that would show the importance of religious purity and adherence to the true Church. These powerful statements of the need to align political thought and Christianity were highly controversial, but they illuminate some of the main options available to early modern people keen to set the commonwealth within an obviously Christian scheme of history. On the Catholic side, the events of 1589 forced a reconsideration of the by now standard account of the power of the Church over rulers and a renewed appeal to ­history. Henry III had been assassinated before Pope Sixtus V had pronounced on the case for his excommunication and deposition, and there was no explicit papal sanction for the knife thrust which had ended his life.5 Those who defended the murder could not, therefore, easily appeal to the indirect power of the papacy or indeed 4 5

See S. Tutino, Empire of Souls: Robert Bellarmine and the Christian Commonwealth (Oxford, 2010), esp. Chapter 1. On the discussions between the French Church and the papacy see C. Zwierlein, The Political Thought of the French League and Rome (1585–1589) (Geneva, 2016), esp. 20–31. On the broader ­intellectual context see S. Nicholls, Political Thought in the French Wars of Religion (Cambridge, 2021).

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to the juridical mechanisms of the Roman Church’s hierarchy. Furthermore, they also needed to make clear that Henry could not be succeeded by anyone other than a faithful, zealous Catholic – and certainly not by the man who was, on most readings of the Salic law, closest in line to the throne: Henry of Navarre. The leading theorists of tyrannicide, Jean Boucher and ‘Rossaeus’ (probably the English Jesuit William Reynolds) wanted therefore to draw a connection between proper rituals of worshipping God and the fundamental bonds of human society, to justify Clement’s knife thrust and also to show that allowing Protestantism into the body politic was impossible.6 These leading Catholic scholars saw that they had to link the juridical power of the Church to something that was prior to and more fundamental than law itself, and for them that was the need for sacrifice or mediation, connecting man with God. In his De Justa Abdicatione (1589), the fiery preacher Jean Boucher insisted not only on the centrality of true religious worship but also its foundational role in the creation of any community. For him, the priests were prior to the people, logically and temporally – there could be no people, no coming together of a multitude, without a priesthood to offer sacrifices to God. For him, it was not simply the covenant, the Word of God or the law which enabled the people to come together and to act as a community, for what was also required was the presence of the priesthood.7 A fuller explanation of the same line of thought can be found in Rossaeus’ De Justa Reipublicae (1590). This tract contained an account of religion designed to show that there had always been religious (rather than political) authority because every human being and human community knew that God was to be worshipped through sacrifices. God, Rossaeus claimed, had taught the Hebrews through the law of nature and the law of Moses of the need for sacrifice, and not only the Christians throughout all ages and across all the world but even the Greeks, Latins, indeed, even the ‘most barbarous’ Tartars and Americans taught only by the light of nature knew this crucial truth. Only the Protestants denied it, and so they could not be included in any functioning human society.8 Roussaeus asserted this primeval and universal truth about sacrifice in order to deny that it was possible even to imagine a commonwealth without true priests; political thinking required a framework in which the fundamental principles of religion were already established. He justified his claim from the record of Scripture, but he was also careful to deny that it was limited to Christians alone. Indeed, he argued, not only the true Catholics but even the ancient philosophers, ‘thought that priests and sacrifices were more necessary than laws or than magistrates, because they affected the intrinsic nature of every republic so much that without them it 6 7 8

On the identity of Rossaeus, see Nicholls, Political Thought in the French Wars of Religion, 135–6. J. Boucher, De Justa Henrici tertii abdicatione (Paris, 1589), 19v: ut populo sacerdotem, & privato principem, sic principe populum seu regnum priore loco esse. Rossaeus, De Justa Reipublicae Christianae in reges impíos et haereticos (Paris, 1590) fos. 117v–118r.

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was not even possible to conceive of a commonwealth.’9 In this way Rossaeus could use his own understanding of human and Christian history to advocate a very specifically Catholic commonwealth, one with true priests and sacrifices, and to insist upon a ruler who shared his own faith. On the Protestant side, some of the leading scholars also sought to show that political thinking had to be set within a religious framework which stretched back to the very earliest society. One text which dealt extensively with this issue came from the pen of Lambert Daneau, one of the leading Huguenot scholars of the period. Daneau fled France in 1572 after the massacre of St Bartholomew’s day, returning a decade later to minister in south-western France, in the area around Orthez. In the intervening period he taught at both Geneva and Leiden, and was a persistent advocate of Protestant resistance theory. His Politices Christianae, printed a year after his death in 1595, was a powerful and much cited statement of Protestant political thought at the turn of the century, though Daneau has never received much attention from historians of political thought.10 The central theme of the Politices is simple: politics must be based on the Word of God. As Danaeu saw it, ‘happiness is to be hoped for from the one God and so these unique precepts, which are called politics, must be taken from the rules of his Divine Words.’11 In Daneau’s view, political theory, or politica scientia as he termed it, was the study of commonwealths which were ‘just’ or rightly ordered; citing Augustine’s discussion of Cicero’s De Republica, Daneau insisted that only a community united in justice could properly be called political. Political thought must therefore be concerned with justice, and for Daneau this justice was known most fully from the Scripture even if fragments of it could also be found in the writing of wise ancient authors.12 In this way the standard provided by the Word of God was incorporated into Daneau’s description of politics right from the start, and although he included a considerable amount of material from ancient authorities – providing both scriptural and classical ­aphorisms at the end of every chapter – the argument was driven by his reading of the Scriptures. For Daneau, political theory must be guided by the Scriptures, but that raised a question about the connection between politics and the Christian story, particularly the role of Adam’s Fall in the genesis and development of commonwealths. Having 9

10

11 12

Ibid., fo. 115v: Quaere a philosophis qui mente & intellectu prima civitatum initia formant & commuionem hominum civilem describunt. Magis necessarium putant sacerdotium & sacrificium quam leges, quam Magistratum, quae tamen ita intrinsecum cuiusque reipublicae naturam attingunt ut sine iis respublica ne cogitari quidem possit. The most extensive study is C. Strohm, Ethik im frühen Calvinismus (Berlin, 1996). There are now some translated extracts from the Politices in I. Campbell and F. Verhaart, eds., Protestant Politics Beyond Calvin: Reformed Theologians on War in the Sixteenth and Seventeenth Centuries (Abingdon and New York, 2022), 58–103. L. Daneau, Politices Christianae (Geneva, 1596): 2: felicitas ab uno eodem Deo est speranda, … haec una praecepta, (quae Politica nuncupantur) ex illa Divini verbi regula maxime sumerentur. Ibid., 11–12.

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noted that God created Adam ‘with knowledge of the true God and of created things, and granted him sincerity of heart, holiness of will and purity’, Daneau believed his task was then to examine whether ‘commonwealths, kingdoms and polities were necessary and ought to be established’ in this condition of innocence.13 He was aware that some of his contemporaries believed political authority to have arisen only after the Fall, in response to human sin, and some suggested that perhaps in the state of innocence there would only have been familial or domestic authority, but Daneau feared that this would weaken the value and legitimacy of human government. He therefore went to some lengths to explain that there would have been political government, extending over a number of families, even without the Fall, and that a head or ruler was necessary in all commonwealths, even those made up of people who had not sinned.14 By tracing human authority all the way back to the state of innocence, Daneau could make an important point about political power itself. He noted that some defenders of monarchy pointed to the temporal priority of Adam’s patriarchal power over his sons to show that monarchs came before peoples. But Daneau denied this, distinguishing between the domestic authority founded in nature and political authority which is based on ‘elections and consent’. While it was obvious that fathers came before sons, temporally and conceptually, this was not true of the relationship between princes and peoples, for ‘subjects are prior to their kings both in time and in nature’.15 Political power may have been latent in the Garden of Eden, where there was only one family, but that did not mean that it could not have developed. That it was part of God’s plan for his people helped to explain why the true rules for political life could be found in the Scriptures. The chief political lesson which Daneau drew from both Scripture and history was not that priests or sacrifices were required, but that commonwealths must be based on covenants. If rulers were chosen or elected by the people, then there had to be some agreement about the terms on which ruler would govern. ‘There was never a sane and healthy people who gave supreme power over themselves to any mortal human being without specific laws and conditions.’16 All peoples knew that to do so would be to invite tyranny, and so they bridled their rulers with laws and agreements. But that did not mean that a people could agree to anything it liked, of course. For Daneau had already made clear that the true laws and conditions of rule were to be

13

14 15 16

Ibid., 31: Est autem is, in quo primus homo Adamus a Deo conditus fuerat, vera Dei & rerum creatarum cognition praeditus, & sincera cordis, voluntatisve sanctitate, ac puritate donatus. … Ergo de huiusmodi hominis ac mundi statu quaeritur: Num Respublica ac regna, Politiaeque in eo fuissent necessariae, ac constituendae. Ibid., 34–5. Ibid., 39: Politicum [imperium] vero, hominum suffragio & consensus 41: subditos esse suis regibus tempore naturaque priores. Ibid., 218: Nulla umquam a sanis populis in se summa potestas cuiquam mortali homini absque certis legibus ac conditionibus concessa est.

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found in the Word of God, and so it was incumbent upon the people to bring their commonwealth as close as possible to the true standard found there. Discussing the factors which maintained a commonwealth, he insisted that ‘true religion, which is the source of all virtues and the cause of both public and private justice and felicity, is the first thing to be established in a Christian Commonwealth’.17 Indeed, because it was only the laws of God which bound the conscience, human commands simply did not oblige people if they were not grounded in the divine law.18 The covenants on which the commonwealth was based did not generate much loyalty or obedience in their own right, it was only in so far as they were consonant with the Word of God that they could be said to bind people. Daneau even included a long section on the legitimacy of altering one’s commonwealth should it be seen to be flawed and imperfect.19 Daneau’s text provides a clear example of the way that Scripture could be used to destabilise earthly polities and to legitimise calls for resistance based upon the superior principles of the Word of God. Daneau argued that commonwealths had to be based upon agreements, which took place in time and history, but those covenants were themselves always part of the broader story of human history stretching right back to Creation and should, in his view, adhere to the political precepts given in the Bible. He went out of his way to show that classical authors agreed with his reading of Scripture, but because these authors were being read in a strongly Protestant light, they simply reinforced his argument that creating a godly, Christian commonwealth based upon a particular kind of covenant was the only viable political option. The authors of these texts of the 1590s, from different sides of the confessional divide, shared the belief that without religion there could be no society. They accepted that pagans had managed to construct functioning polities, through the light of nature given to them by God, but they believed that for those polities to function correctly it was necessary to look to the Scriptures or to the true Church. The Christian story revealed what the pagans had dimly apprehended: the Fallenness of man, the need for sacrifice and expiation (especially for Rossaeus and Boucher), and the ultimate bliss of those elect of God. The commonwealth’s role and purpose, for them, could only be understood as part of the wider drama of God’s cosmic action, a drama in which the state had an important, but very much a supporting, role. Yet the reasoning found in these texts made political systems – and indeed any set of human rules based on custom or agreement – look extremely fragile. Commonwealths would be vulnerable to religious critique, to the claim that Scripture or clerical power was necessary in order to ensure that imperfect versions of natural law and pagan wisdom came to their completion in a pure Christian politics. And, given the profound and ongoing divisions within Europe over the 17 18 19

Ibid., 167: vera religio, quae virtutum omnium fons est, & publicae privataeque iustitiae & foelicitatis caussa, imprimis est in Christiana Republica constituenda. Ibid., 333. Ibid., 224–7.

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interpretation of Scripture and the location of the true Church, such insistence on the importance of Christianity to political life helped to fuel the confessional conflicts of the late-sixteenth and early-seventeenth centuries. 2

Against this background, some scholars and writers began to wonder whether it might be possible to consider politics and political science independently of this Christian story. Some did this by seeking to analyse politics without any reference to Christianity at all. Bodin’s Six Livres de la République (1576) were a particularly striking example of this and by the 1590s Catholic critics were keen to point out just how far his political ideas diverged from the orthodox tenets of the faith. The Jesuit Antonio Possevino complained that Bodin took his examples solely from this Fallen world and that his account of the law of nature said nothing about how it was changed and altered by the law of grace – and he was far from the only Catholic to spot this.20 Bodin simply sidestepped the Christian scheme of Fall and redemption, seeking instead to create a version of the law of nature that did not cede power to religious leaders. His work was widely read, but his combination of a strong and rather inflexible view of sovereignty coupled with obviously heterodox views meant that few of his readers were willing to accept his theory wholesale. There were efforts to separate political power from religious authority which were more compatible with mainstream Christian teaching. One example can be found in the writing of Bartholomew Keckermann, a professor at the Gymnasium in Danzig (Gdan´ sk) until his death in 1608. Danzig was a particularly interesting city to live in at this time; although de jure under the authority of the Catholic monarchs of Poland, the city was largely Lutheran while the flourishing Gymnasium was Reformed. A city built on trade, Danzig allowed other communities – like Jews and anti-trinitarians – to settle there unofficially; the resulting mix made the kind of confessionalised politics advocated by Daneau or Boucher highly inappropriate.21 Keckermann himself was interested in method, in the underlying principles on which the different branches of knowledge were based, and for him politics was a part of practical philosophy, quite different from theology. In his Systema Politicae (1607), a work based on lectures at the Gymnasium, he explained that ‘political prudence’ is that by which a society or group of people is directed to ‘public ­happiness’.22 It was important to him that the purpose of politics was civil felicity, 20

21 22

A. Possevino Iudicium de Nuae militis Galli, Ioannis Bodini … quibusdam scriptis (Rome, 1592), esp. 121–5; R. Descendre, L’état du monde. Giovanni Botero entre raison d’état et géopolitique (Geneva, 2009), 58–9. See M. Bogucka, ‘Mentalität der bürger von Gdan´sk in xvi.–xvii. Jh’, in Baltic commerce and urban society, 1500–1700: Gdan´sk/Danzig and its Polish context (Aldershot, 2003), esp. 68. B. Keckermann, Systema Politicae (Hanau, 1608), 1: Prudentia nempe Politica, per quam publicus & maior hominum coetus, sive societas, ad publicam beatitudinem dirigitur.

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because he thought that political philosophy had been damaged by the intrusion of principles from theology or personal ethics. And he was clear that civil felicity did not necessarily entail true religion: ‘commonwealths in which people live honestly and peacefully ought not to be judged unhappy, even if they do not live according to contemplation or to the most pure precepts of religion’.23 Keckermann’s political ideas drew on the thinking developed in his lectures on ethics. In the Systema Ethicae, also published in 1607, he insisted on a strong distinction between the knowledge of civil good and bad which all have naturally, and theological knowledge which concerns matters above ethics, like redemption and salvation. Relatedly, he separated that which was morally good from spiritual goods and taught his pupils that although moral goodness would not lead to eternal life, nevertheless ‘a certain kind of perfection should be attributed to it, with respect to the measure of this life, or the preservation of human society in this life’.24 This ethical perfection requires knowledge of God, but God as an omniscient being who rewards and punishes people. Keckermann did not suggest that it required knowledge of the Christian story, of the Fall and of humans’ ultimate redemption, nor that we could find traces of that story within human nature itself. In other words, it was not necessary to view politics or ethics against the backdrop of the Fall and the final judgement. His teaching fitted well with local policies, for it did not demand confessional purity or condemn toleration. Distinguishing the natural and spiritual spheres did not necessarily mean limiting the power of the clergy, however, or giving up on the quest to spread the true faith. Indeed, in the writing of the Jesuit theologian Francisco Suárez we can see the most extensive and influential explanations of the origins of civil and ecclesiastical power in these years, designed explicitly to strengthen the authority of the Roman Catholic Church. In his mammoth Tractatus De Legibus ac Deo Legislatore (1612) he dealt with a series of legal, theological and political questions, and in the fourth book he turned to consider canon law. Opening this section, he explained – against the heretics old and new – that the Church had the power to make laws and to command its members. This power came from Christ himself via St Peter, for Christ was ‘sent [by God] not only as a teacher but also as a lawgiver and ruler’.25 But when considering the emergence of ecclesiastical power and the power of the Church to make laws, Suárez realised that it was necessary also to consider whether this power existed earlier, under the law of nature, before the law of grace came into the world through Christ. It was his view, he explained, ‘that a certain shadow or a kind of sharing in that power was there before the law of grace, and has always been in the 23 24 25

Ibid., 23: non oportet infelices iudicare, in quibus honeste et tranquille vivitur, etsi non vivatur secundum contemplationem, aut secundum purissimae religionis praescripta. B. Keckermann, Systema Ethicae (Hanau, 1607), 8: aliquid perfectionis ei tribui debet, nempe respectu mensurae huius vitae, sive societatis humanae in hac vita conservandae. F. Suárez, Tractatus de Legibus ac de Deo Legislatore (Naples, 1872), 298 (4.1.3): missus est autem Christus non solum ut doctor, sed etiam ut legislator et gubernator.

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Church’, although that ‘perfect power’ which exists now in the Church, is proper only to the law of grace.26 Suárez was therefore connecting the law of nature with a condition before, or outside, the law of grace, and at this point he clarified for the reader what he meant by this. ‘[Y]ou must remember, as I have often said’, he explained, ‘that this [law] can be considered either as according to [in ordine ad] pure nature, or natural reason taken on its own, or according to the illumination of the light of faith’.27 If we start with the first meaning, he went on, we will see that not only do all human beings have some natural sense of the divine, but moreover that ‘the human commonwealth, even regarded from the point of view of pure nature, will need agreement and conformity in this kind of knowledge and worship of the true God’. The commonwealth must contain oversight over religion and it will prescribe sacrifices, ceremonies, and other such matters necessary for the true worship of God. Indeed, this kind of spiritual power is just as necessary and natural to humans as political power.28 It followed for Suárez that human societies have always had these two kinds of authority, civil and spiritual, and there could be no community without both rulers and priests. What might have misled his readers, Suárez thought, was that sometimes these two powers had been combined in one person. Although that had happened in the past, with the advent of Christianity the two powers had been separated more clearly and that old condition, of the time before grace, was now superseded. Indeed, the union of spiritual and civil authority in the condition of pure nature was itself evidence of the lack of true and perfect religious worship. For him, ‘because human beings in pure nature, either absolutely cannot, or only with difficulty can, love and worship God perfectly for his own sake, thus this [spiritual] power always carried with it imperfection, and so it was not separated from the civil power in the supreme magistrate’.29 Suárez was careful to add that he was not suggesting that the religion of the light of nature was wrong or evil, just that it was geared towards the inferior end of earthly peace and concord rather than the true end of eternal life. Christians, however, did not need to endure such arrangements, for now spiritual power had been ‘granted immediately to Peter by Christ the Lord, and in a unique and special way’.30 After Christ had granted spiritual power to St Peter, things changed radically. 26

27 28 29

30

Ibid., 302 (4.2.2): vestigium aliquod, seu participationem, aliquam huius potestatis ante legem gratiae, atque adeo semper in Ecclesia fuisse, perfectam autem potestatem, prout nunc est in Ecclesia, propriam esse legis gratiae. Ibid., 302 (4.2.3): Circa legem ergo naturae recolendum est, quod saepi dixi, spectari posse vel in ordine ad puram naturam, seu ad ratione, naturalem nude sumptam, vel prout illuminatam lumine fidei. Ibid., respublica humana etiam in pura natura spectate indigeret unione et conformitate in huiusmodi cognition et cultu veri Dei. Ibid., Unde quia homo in pura natura, vel absolute non potest, vel difficile potest diligere, et colere Deum perfecte propter seipsum; ideo potestas haec in pura natura considerate semper haberet illam imperfectionem adiunctam, propterea in supremo magistrate non esset separata a civili, moraliter seu regulariter loquendo. Ibid., 305 (4.3.1).

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Now the church enjoyed a kind of authority which was far more excellent than civil power, because its authority came directly from God and was directed towards a spiritual end. On this reading, Jesus’ grant of the power of the keys to Peter becomes one of the most significant events in Christian time, for it helps explain the unique status and authority of the Catholic Church. One of the key, and explicit, sources for Suárez’s discussion here was the commentary of Cardinal Cajetan on Aquinas’s Summa Theologica, a hugely influential source for early modern scholasticism. Writing in the 1510s, Cajetan teased out some of the implications of Aquinas’ views for his own society, while offering many of his own interpretations of the issues raised in the Summa. Suárez, of course, was familiar with the Summa and Cajetan’s commentary, and when analysing spiritual power in the law of nature it was to Cajetan’s notes on the content of the Old Law that he turned, specifically to a section on whether that Law contained ceremonial precepts (IaIIae 99 art. 3). Here Cajetan had been careful to distinguish human and divine laws, particularly in the ways they could be said to promote friendship between human beings and God. In an effort to bolster the power and authority of laws which were not explicitly Christian, Cajetan argued that friendship with God could be seen in two ways: properly, through grace and charity, but also ‘in a lesser way (secundum quid), by which I mean that without grace, there can be [friendship] between human beings in pure nature and God’.31 If human laws promoted this kind of friendship then they were serving their correct purpose, even if that end was inferior to the more perfect ends of divine law. This point in the commentary was one of the moments where Cajetan appealed to a concept of pure nature, and it is noticeable that he did so to explain not only the individual’s relationship to God without grace but that of the community. A community in pure nature would still have some idea of God and, crucially, it would have human laws fit for their specific and earthly purpose. It was only in matters of divine law that the community would be imperfect and flawed – and thus it would need the help and enlightenment of the Roman Catholic Church. The idea of pure nature became an increasingly common conceptual tool in the late sixteenth century, allowing scholars to examine and analyse what human beings might have been like without either sin or grace. Most famously, it was invoked by the Jesuit theologian Luis de Molina, who defined this state as ‘without sin and without grace, or any other supernatural gift’ as part of his explanation of human free will.32 Partly thanks to Molina’s work, the idea of pure nature has tended to be associated with theological rather than political thinking. But – as we can see in

31

32

Sancti Thomi Aquinati Opera omnia, iussu impensaque Leonis XIII (Rome, 1882) vol. 7, 201: Amicitia autem hominis ad Deum dupliciter potest sumi … secundo, secundum quid, quae scilicet, seclusa gratia, esse potest inter hominem in puris naturalibus et Deum. L. de Molina, Concordia liberi arbitrii (Lisbon, 1588), 13: Primus est, status naturae humanae in puris naturalibus, sine peccato & sine gratia, ac sine ullo alio dono supernaturali.

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both Suárez and Cajetan – it was also used to examine the relationship between the Church and the civil power, and to show that even without grace human communities had a sense of religion which would ultimately be fulfilled in the Christian revelation. Elsewhere in De Legibus, Suárez made this point succinctly, arguing that because even by the light of nature humans were aware of the possibility of eternal happiness, they needed religious laws: ‘in a condition of pure nature, the civil law cannot even in this way be ordered towards a supernatural end’ and so even a community of unfallen human beings would need some kind of religious system.33 As a thought experiment, therefore, the state of pure nature was helpful for analysing communities and defending the need for ecclesiastical authority over and above merely civil power. It was important to these writers to make clear that ‘pure nature’ was not an h ­ istorical condition; both Molina and Suárez went out of their way to deny that they thought human beings had ever in fact been outside the scheme of sin and grace. Molina ensured that, having defined the state of pure nature, he made absolutely explicit that ‘human beings were never in this condition, nor will they ever be’ – it was simply an heuristic device used to help his reader understand the role of grace more clearly.34 Suárez himself cautioned that the idea of a state of pure nature was coined merely to defeat heretics and misguided Catholics, a state which ‘though it never actually existed, as I assume and will explain below according to correct teaching, nevertheless can be imagined as possible’.35 In conceptualising this state in increasingly complex ways, however, the Catholic theologians were opening up the possibility that the idea of a state of pure nature might in fact escape the confines of their theological treatises, to be used in new and innovative ways. In particular, it could be used to open up a way of thinking about human beings as abstracted from the Christian story, and so to distance political thinking from the Christian scheme of time. 3

These Catholic reflections upon the concept of pure nature provided an important stimulus to the thought of Hugo Grotius, the Dutch jurist and historian whose writings on law and religion would become famous across Europe. In Suárez and other scholastics, Grotius encountered important resources for his study of law and political authority, and he began to use their concept of pure nature for his own purposes. At the same time, he was also drawing on those Protestant writers – including Keckermann – who differentiated between the spiritual and civil purposes of communities. Eventually Grotius would come to see that by grounding Christianity in a 33 34 35

Suárez, Tractatus de Legibus, 194 (3.11.3): ideoque stando in pura natura, non posset lex civilis etiam hoc modo ordinari ad finem supernaturalem. Molina, Concordia, 13: Hunc statum nunquam homo habuit, neque unquam habebit. F. Suárez, ‘De Statibus Humanae Naturae’, in Opera Omnia (Paris, 1867), vol. 7, 179: licet de facto non fuerit, ut suppono, et infra juxta sanam doctrinam ostendam, cogitari tamen potest ut possibilis.

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historical revelation that was distinct from the natural foundations of civil power he could separate the two. This would, he hoped, limit the scope for religious warfare in a Europe sharply divided along broadly confessional lines. One of the texts that reveal Grotius’ early engagement with the Catholic scholastics is his Commentarius in theses XI, a defence of the Dutch Revolt written in the early years of the seventeenth century. At the heart of his case here was the claim that the States of Holland could legitimately wage war against Spain because they wielded the kind of public authority which entitled a magistrate to declare war. Against a Bodinian reading in which Philip II would be sovereign with the prerogative of making war and peace, Grotius argued that the marks of sovereignty were shared and, moreover, that when the States of Holland found that Philip encroached on their sovereign rights, they were entitled to defend them by force.36 Here, Grotius leaned heavily on Catholic scholastics, notably Cajetan and Francisco de Vitoria, drawing from them the thought that the States must have the right and power, by nature, to achieve the end for which they exist. As those Catholics had made clear, natural law grants the States, and every perfect community, the right to defend itself by force if necessary – and so the States’ war was fully justified. Using Cajetan and Vitoria was a shrewd move, bringing the enemy onside as it were, since both were committed to defending the rights of local political communities (the cities of Italy, the kingdom of Castile) within a wider empire. In this sense, Grotius was quite faithful to the spirit of their writing. But Grotius was of course telling only part of the story. Cajetan and, more so, Vitoria insisted on the value of natural law but they placed it within a wider framework in which spiritual ends were always more important and where nature was fulfilled and completed by grace. Both men insisted, as Grotius cannot have failed to see, that the Church existed to promote a higher end than nature alone.37 There is nothing of this in Grotius’ account; from at least this time Grotius had a sense of what he could do with Catholic natural law thinking, as long as he extracted it from its religious context and protected it from encroachment by the clergy or ecclesiastical authorities. Grotius’ strategy, at least in the early 1600s, was to link the will of God not to revelation, the Bible or the Church, but to the design of nature itself, thus drawing natural and divine law tightly together. Hence his claim in De Jure Praedae that ‘the Will of God is revealed, … above all in the very design of the Creator; for it is from this last source that the law of nature is derived’.38 In this way, he could suggest that the law of nature was of crucial importance for religion as well as for politics, and thereby remove the distinction between natural and spiritual (or supernatural) ends which the Catholic Thomists were so careful to maintain. His approach to natural 36 37 38

H. Grotius ‘Commentarius in theses XI’: an early treatise on sovereignty, the just war, and the legitimacy of the Dutch revolt, ed. P. Borschberg, (Berne, 1994), esp. 237–43. Grotius was certainly aware of Vitoria’s lecture De Potestate Ecclesiae and probably also De Potestate Papae – see the editor’s comments at 51–2. H. Grotius, Commentary on the Law of Prize and Booty, ed. M. Van Ittersum (Indianapolis, 2006), 20.

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law also eliminated both the temporal and the conceptual distinction between the current human condition, enlightened by Christian revelation, and an alternative state of nature, fallen or pure. Grotius’ thoughts were further developed in his manuscript text De Imperio Summarum Potestatum circa Sacra (c. 1617), written when tensions were running high in the United Provinces over both theological and political affairs. Here Grotius offered his own definition of the nature of supreme authority and insisted that it must extend to religious as well as secular matters. This was a clear intervention on the side of the States of Holland and the Arminians, but he claimed that his views were neither new nor unusual, being shared by the ancient Christians, the Reformed Christians and even the pagans. In other words, he was denying that his was a narrowly partisan claim or one based on expediency; it was the universal judgement of mankind challenged only by those who had depraved and corrupted religion itself.39 Grotius even managed to claim that the Catholics shared his views – indeed a key source for him in this section of the text was the writing of the Jesuit Francisco Suárez. But here we see how Grotius was able to adapt and repurpose Catholic natural law theory to his own ends. According to Grotius, Suárez had proved from Aquinas ‘that every human community, using only its natural facilities, has always taken care of divine worship … [including] those who worshipped the true God with just their natural insight’.40 Thus he could reinforce his claim that by nature the magistrate had control over the church just as he had control over all other aspects of human social life – to divide control over these would be to invite chaos and confusion. We can immediately see, however, that Grotius’ paraphrase does not capture what Suárez had in fact written and that it is, in fact, a transformation of the Catholic argument. Grotius simply ignored all of Suárez’s comments about the law of nature in the time of grace, and about the superior power of the Church, and borrowed instead the Jesuit’s account of the law of pure nature. This is exactly the strategy he had used in the Commentarius, appropriating Catholic natural law but altering – indeed, distorting – it by extracting it from its original context and thereby extending the scope of natural law to encompass religion as well. De Imperio marks perhaps the highwater mark of Grotius’ campaign to contain religion within the sphere of nature, and the attractions of this approach in the mid-1610s are clear. Certainly it enabled him to show that the civil magistrate must have final say over the affairs of the Church just as it controlled the affairs of other societies. It also allowed him to diminish quite extensively the power and purpose of the priesthood – in earliest times the people had elected their priests but when they formed societies they transferred that right to the sovereign.41 Indeed, because 39 40 41

H. Grotius, De imperio summarum potestatum circa sacra, ed. H-J Van Dam, (Leiden, 2001), 156–83. Ibid., 173. Ibid., 191.

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this was a claim about state control over the Church it provided no cover for those who objected to the magistrate’s decision (unless it directly violated the Word of God), envisaging instead the unity of the political and religious communities. So it is not perhaps surprising that with the defeat of Grotius and his friends in 1618–19, such a model began to look considerably less attractive and Grotius began to explore alternatives. The years between 1619 and 1625 were eventful and indeed painful for Grotius; he was condemned to life imprisonment, his friend and mentor Jan van Oldenbarneveldt was executed, and he found himself eventually in exile in Paris.42 That experience, and his ongoing studies, led him to shift his views on the purpose of civil authority and to argue that its scope was rather more limited. At the same time, he began to see the Christian faith as something distinct from nature, different in kind from the universal religious sentiments which all shared and which were necessary for society to function. One influence may have been the writing of Keckermann, who is cited not only in a letter of 1617 but also in Grotius’ Apologeticus of 1622.43 But his developing view of religion was shaped most of all by his study of the gospels for a new, annotated edition – by the time he left Loevenstein he had got as far as the gospel of St Luke – and it found expression in De Veritate Religionis Christianae. Although ostensibly a clear and simple guide to Christianity for sailors, De Veritate was a highly heterodox apology for Christianity which assumed that human beings were able to make meaningful choices about religion in the absence of grace. Here, Grotius suggested that the central reason for choosing Christianity over other religions was that it offered a reward above and beyond nature, the reward of eternal life. By emphasising heaven and the afterlife, Grotius was moving away from the model of De Imperio, and suggesting instead that Christianity must be different from natural law and natural ethics. Indeed, he argued that the truth of the Christian faith was based not so much on its congruity with the rational, ethical side to human nature but upon its firm grounding in the gospels as credible accounts of the life and teaching of Christ.44 By 1625, then, in De Jure Belli ac Pacis, Grotius had appropriated the distinction between nature and Christianity which he found in some of his Catholic sources, and this enabled him to analyse natural law without tying it to the Christian narrative of Fall and redemption. Grotius made no effort to connect his law of nature to a moment in the Christian story, not even a conceptual one, preferring instead to see Christianity as an historical imposition upon an atemporal framework of natural law. Within this framework, human beings could set up communities, make 42 43

44

For these events in Grotius’ life see Henk Nellen, Hugo Grotius: A Lifelong Struggle for Peace in Church and State, 1583–1645, trans. J. Grayson (Leiden, 2015), Chapters 8 and 9. The letter is printed in Grotius, De imperio summarum potestatum, 957. Keckermann is cited in Grotius’ Apologeticus eorum qui Hollandiae Westfrisiaeque et vicinis quibusdam nationibus ex legibus praefuerunt … (Paris, 1622), 101. See S. Mortimer, ‘Grotius’ De Veritate: Christianity and Human Nature’, Grotiana 35:1 (2014), 75–94.

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agreements and join churches – and the contracts and covenants they entered into were binding upon them. In this model, political authority stemmed from an original agreement whose foundation lay in the principles of natural law. As he argued in the ‘preliminary discourse’, ‘the fulfilling of Covenants belongs to the Law of Nature’, and it was upon covenant that civil society rested, because ‘those who had incorporated themselves into any Society, … had either expressly, or from the Nature of the Thing must be understood to have tacitly promised, that they would submit’ either to the will of the majority or to the person(s) on whom sovereign power had been conferred.45 On these grounds Grotius could protect and even embrace the diversity of political arrangements to be found in Europe while insulating them from confessionally motivated criticism or any attempt to make them more godly or Biblical. In Grotius’ view, ‘a People may chuse what Form of Government they please’ and thus sovereign power can be measured ‘by the Extent of the Will of those who conferred it upon him’.46 All kinds of political arrangements were possible, and given the role of human choice in deciding them it was only to be expected that the constitutions of kingdoms and commonwealths would vary across space and time. In this way Grotius could block any move to generalise from the Scripture or to generate universal political principles from it as Daneau for example had done; the natural law basis for human social life was quite separate from the specifically Christian revelation or the path to eternal life. Furthermore, religious authority had, for Grotius, a very limited foothold in the law of nature. It is true that he believed human communities needed religion, and that religion had a powerful and beneficial effect upon human society.47 All societies would require – and could enforce – the basic tenets of religious belief, but these basic tenets were defined quite explicitly by their social utility and those who sought to destroy or refute such tenets were liable to punishment because they injured the society of human beings.48 The necessary universal religion included belief in the existence of God and his providence, but it did not contain anything about the Fall or the need for redemption – it was distinct from the Christian narrative of creation and judgement. Furthermore, Grotius did not suggest that human beings had any idea of eternal life by nature, thereby insulating his natural law from the kind of claim made by Suárez, according to whom even the state of pure nature was incomplete without religious authority. Grotius’ natural law has often been seen as secular and, in many ways it is – it provided the broad framework of morality necessary for social life and within which human beings could make their own choices about the kinds of societies they 45 46 47 48

H. Grotius, The Rights of War and Peace, ed. R. Tuck (Indianapolis, 2005), Preliminary discourse XVI, p. 92. Ibid., 1.3.8, p. 262. Ibid., 2.20.40.3, p. 1,027. Ibid., 2.20.46.4, p. 1,037.

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wanted to create. Those societies would be different, with a variety of institutional arrangements, but they could still all be legitimate and command the loyalty of their members. These societies did not need to embody Biblical principles or reflect an idealised constitution, so long as they did not contravene the fundamental and fairly minimal standards for human social life. Grotius was therefore able to defend local, historic laws and customs, protecting them from intervention based on ecclesiastical power, or Scripture, or even individual claims about justice and equity. Natural law was separate, for Grotius, from the course of Christian time, but even in De Jure Belli he allowed that Christianity could have an impact, at least upon individual people. On this reading of Christian teaching, Christ demanded of his followers obedience to the highest laws of charity, even if these could not be enforced on this earth. Grotius made this clear in one of his comments about selfpreservation: ‘The Christian Religion commands, that we should lay down our Lives one for another; but who will pretend to say, that we are obliged to this by the Law of Nature?’49 This reading of Christian teaching fitted with his insistence, throughout De Jure Belli, that there could be actions which were morally good but not obligatory by the law of nature strictly understood; one example of this is his comment that to kill someone in order to protect our own property ‘is not repugnant to Justice strictly taken, yet is it far wide from the Law of Charity’.50 By disconnecting natural law from specifically Christian teaching, Grotius could defend a sphere of ‘strict justice’ separate from the true moral demands of charity and yet not compromised through association with the Fall or human sinfulness. Alongside political communities and commonwealths, Grotius also imagined a Christian community, united by a shared allegiance to a series of historical events. In the 1640s he became increasingly concerned to discover the mechanisms by which the unity of that group might be maintained and particularly to consider the nature of the church. For him this was the institution founded by Christ to help human beings follow his teaching and gain their heavenly reward, but it also needed a certain kind of authority, and Grotius even came to defend the usefulness of episcopacy as a way of ensuring unity and continuity.51 His aim was to show how the two systems, one of political authority based in natural law and the other of Christianity, could co-exist side by side, both with their own principles and their own history. By re-working Christian history, de-emphasising the Fall and atonement but retaining the sense of an historical community founded by Christ, Grotius hoped to enable both church and commonwealth to flourish together, in their own distinctive ways. As Grotius’ writing suggests, how people conceptualised the relationship between nature and the Christian story had an important impact on how they understood both political and religious authority. The scholastics had imagined a state of nature 49 50 51

Ibid., 1.2.6.2 p. 195 Ibid., 3.11.2.1 p. 1,422. H. Grotius, Opera Omnia Theologica (London, 1679) vol. 3, 659, 695–6, 714.

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separate from Christianity but had denied its reality and historicity; Grotius, well aware of their writing, assumed a similar kind of state as the default position for human beings, upon which he then superimposed the divine positive laws found in the Bible. This move generated a theory tolerant of political and religious diversity, and in which historical agreements could shape a spectrum of constitutional arrangements in the present. It also suggested that human beings could be part of two potentially different communities, one political and one religious, and that these communities would look back to different foundational moments and serve distinct purposes. Grotius’ efforts to prevent tension between these two communities met with only limited success, however, not least because the traditional Christian scheme of history continued to exert a powerful pull on his ­contemporaries’ imaginations. The traditional Christian view of human beings has an important temporal dimension, and how people envisaged that temporal dimension had important consequences for their political thought. If authority among human beings was traced back to the story of creation and the Fall then this could encourage an emphasis on the Scriptures or the role of the clergy; meanwhile different views about the founding of the church in time affected the relationship between church and state. Yet the elasticity of the Christian view, the way it could be shaped and interpreted as Christian history was reconceptualised, helped to enable a vigorous debate about the nature of the commonwealth. Finding meaning for the commonwealth in Christian time meant rethinking the aims and purposes of human beings and human communities, in Eden, on this earth and in the world to come.

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5 Politic History Kinch Hoekstra

Bisogna procedere distinguendo. Guicciardini1

At the beginning of the seventeenth century in England, established historiographical modes – chronicles, moralistic or characterological history, accounts of providential progress – gave ground to what has generally been called ‘politic history’.2 ‘Civil’ or ‘politic’ history might be thought of as the historiographical incarnation of ‘reason of state’ thinking. These histories focussed on governance, domestic politics and foreign policy,3 with a disenchanted view of human motivation and an emphasis on causes and outcomes; they were characteristically indebted to one or more of Tacitus, Machiavelli and Guicciardini. ‘Politic history’ is a later term of art for this school of English history-writing variously dated from around the 1590s and often I am grateful to audiences at the universities of Cambridge, Madison, Stanford, Berkeley and Austin, and in particular to my commentators (Annabel Brett at Cambridge, Xinzhi Zhao at Madison and Alicia Steinmetz at Stanford). I regret that some acute comments and questions from these audiences remain unaddressed in the current version; such alterations as I have been able to make have been in particular response to remarks by Eero Arum, Kai Yui Samuel Chan, Thomas Lee, Alison McQueen, Michelle Schwarze, Noah Stengl, Samuel Stevens, Gio Maria Tessarolo and Samuel Garrett Zeitlin. In multiple ways, this chapter exists thanks to the graciousness of John Robertson, temporis dator et emendator. Note that for legibility of quotations I have occasionally used roman font where the default type of the book or section was italic or where occasional letters within words were italicized, have generally substituted ‘u’ for ‘v’ or vice versa in English quotations in accord with current conventions, and have silently corrected a few purely typographical errors in quoted sources. 1 2

3

Francesco Guicciardini, Ricordi C 186 (‘one needs to go forward distinguishing’). Citations to this work are to the edition of Carlo Varotti (Rome, 2013). ‘Sometime around the end of the sixteenth century a change took place in the reasons men gave for writing history. … To put the matter crudely, early in the century history was a branch of moral philosophy, later a branch of politics’ (F. J. Levy, ‘Sir Philip Sidney and the idea of history’, Bibliothèque d’Humanisme et Renaissance, 26:3 (1964), 608–17, at 608. Cf. Samuel Daniel, The First Part of the Historie of England (London, 1612), sig. A2v: ‘the better to fit their use, I have made choyce to deliver onely those affaires of action, that most concerne the government’.

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thought to reach its culminating expression in Francis Bacon’s 1622 The Historie of the raigne of King Henry the seventh.4 The English are rather late on the scene with their particular version of this approach, which Samuel Goldberg argued was kicked off by John Hayward in 1599 with his First Part of the Life and raigne of King Henrie the IIII (for which Hayward was imprisoned on suspicion of treason).5 Other 4

5

Now widely accepted by historiographers, the term was conceived by scholars of English literature of the period. It can be attributed to S. L. Goldberg, ‘Sir John Hayward, “politic” historian’, The Review of English Studies 6:23 (1955), 233–44, though D. R. Woolf calls it ‘Professor Levy’s durable term’, Reading History in Early Modern England (Cambridge, 2000), 34, and Noah Millstone ‘a genre recognised by F. J. Levy in 1967 and studied continuously thereafter’, in his ‘The politic history of early Stuart parliaments’, in Writing the History of Parliament in Tudor and Early Stuart England, Paul Cavill and Alexandra Gajda, eds., (Manchester, 2018), 172; for Levy, see n. 6, in this chapter). Goldberg presents the term as his neologism, referring to ‘a brief discussion’ (234 and n. 3) of the term ‘politic’ by Napoleone Orsini, who in turn properly refers to the more extended and ‘well-known essay’ on the subject by Mario Praz: Orsini, ‘“Policy” or the language of Elizabethan Machiavellianism’, Journal of the Warburg and Courtauld Institutes, 9 (1946), 122–34 at 122. Praz had argued in 1928 (and several later versions) that ‘politic’ was an Elizabethan synonym for ‘Machiavellian’: ‘Machiavelli and the Elizabethans’, Proceedings of the British Academy 13 (1928), 1–49. R. L. Ashhurst had already called Bacon’s Henry the Seventh ‘a truly “politick history”’ in New Shakespeareana, 2:4 (1903), 137. An early historiographical treatment that bears mention is Eduard Fueter’s influential Geschichte der neueren Historiographie (Munich and Berlin, 1911). Fueter writes of ‘Bacon als politischer Historiker’, who turned to Machiavelli and Guicciardini as his models when writing Henry the Seventh, the representative work of the English school of Florentine political historiography, 168–70. Francis Bacon reports that when Queen Elizabeth asked him if Hayward’s history was treasonous, he replied that it was not, though it was felonious nonetheless: ‘Because he had stollen many of his sentences and conceits, out of Cornelius Tacitus’, Apophthegmes (1625), in The Historie of the Raigne of King Henry the Seventh: and other works of the 1620s, ed. Michael Kiernan, (Oxford, 2012), in The Oxford Francis Bacon, hereafter OFB, vol. 8, p. 222. Hayward was nonetheless kept imprisoned until Elizabeth’s death, and the charged politics of his history were immediately notorious. The work was seized from the press and burned, Hayward was repeatedly interrogated about it (see the documents collected in W. H. Hart, Index expurgatorius Anglicanus (London, 1872), 35–46), and the book was used as evidence against Essex both in front of Star Chamber and in the Queen’s council in 1600, and in the 1601 treason trial that led to the earl’s beheading. Hayward was absolved after writing in favour of the absolute authority of King James, and in 1610 the king nominated him for a position as historiographer; only thereafter are the other recognized works of politic history published. The traumatic circumstances of the birth of English politic history and its ongoing dangers thereafter may make even its brief continuance as a genre surprising. Unsurprisingly, similarly critical parallels between the historical account and contemporary politics are generally harder to discern in later politic histories. It may be impossible to identify securely which histories are politic, or whether this approach to history writing died out after the 1620s or just went further underground. Despite Bacon’s effort to exonerate Hayward of treason by assigning the gist of his work to Tacitus, one could not always hide safely behind the ancients. A salient example was that of Essex’s secretary Henry Cuffe, who had been Regius Professor of Greek at Oxford: executed for being the prime author of the rebellion, he was accused of pushing Essex forward with a maxim of Caesar’s from Lucan’s De bello civili, I.348–9. See William Camden, Annales rerum Anglicarum, et Hibernicarum, regnante Elizabetha (Leiden, 1625), 809. Casaubon, though perhaps professionally prone to exaggerate the impact of classical learning, even specified that it was this sententia that was fatal to Essex: Anthony Grafton, What Was History? The Art of History in Early Modern Europe (Cambridge, 2007), 239 n.87, whereas Thomas Fuller reports that it was the evidence that he had pointedly quoted the Lucan that was fatal to Cuffe, in The History of the Worthies of England (London, 1662), 28 of third pagination series (Somerset); cf. Henry Neville’s Declaration of 2 March 1600, reprinted in The Letters and Life

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practitioners listed by Goldberg include Francis Bacon, Walter Ralegh, Samuel Daniel, Fulke Greville, and finally – mentioned for his prefatory materials to his 1629 Thucydides, but not discussed – Thomas Hobbes.6 A full treatment would examine these and other figures, all against the background of English and broader European historiography, Tacitism, and Machiavellism of the preceding decades; but the focus here will necessarily be narrower.7 One limitation of this contribution is thematic. It embarks from a question that arose from the commitment that history should be both true and useful: how could the particular empirical truths of history generate guidance?8 The assumption that a past example could guide someone confronted with a relevantly similar case appeared to depend on an assertion of commonality that was thus susceptible to a general description that applied to any relevantly similar particulars. A common view was therefore that facts about the past could yield or reveal general rules that could then be applied to current cases. Two related but distinct problems lurked

6

7

8

of Francis Bacon, ed. James Spedding, 7 vols. (London, 1861–1874), vol. 2 (1862), in the Cambridge Library Collection re-print of The Works of Francis Bacon, vols. 8–14, (Cambridge, 2011), vol. 9, pp. 343–50, at 345; and Emanuel van Meteren, Commentarien ofte Memorien van-den Nederlandtschen Staet, Handel, Oorloghen ende Gheschiedenissen van onsen tyden, etc., vol. 1 (‘Schotlandt buyten Danswijck’ [but Amsterdam?], 1608), fol. 42v, col. b. F. J. Levy did the most to establish the canon of politic history: see his Tudor Historical Thought (San Marino, CA, 1967), esp. Chapter 7 (including Hayward, Cotton, Bacon, Martyn, Daniel, and Camden), his substantial introduction to Bacon’s Henry the Seventh (Indianapolis, 1972), and ‘Hayward, Daniel, and the beginnings of politic history in England’, Huntington Library Quarterly, 50:1 (1987), 1–34; see also D. R. Woolf, The Idea of History in Stuart England (Toronto, 1990). Stimulating recent work that deploys the category includes Alexandra Gajda’s focussed ‘The Earl of Essex and “politic history”’, in Annaliese Connolly and Lisa Hopkins, eds., Essex: The Cultural Impact of an Elizabethan Courtier (Manchester, 2013), 237–59, and Noah Millstone’s suggestive ‘Seeing like a statesman in early Stuart England’, Past & Present 223:1 (2014), 77–127. I do not here address the adequacy of the roughly agreed cast of historians (one might raise doubts about including Ralegh or Camden, say) or timeline – for example, Eric Cochrane, Historians and Historiography in the Italian Renaissance (Chicago and London, 1981), 3–6, finds characteristics often credited to Machiavelli or Guicciardini already in Bruni. One could also make a case for the earlier birth of the English school, which was well underway at least by the time of Samuel Daniel’s account of ‘How causes, counsels and events did runne’ (fol. 2r) in The First Fowre Bookes of the ciuile warres betweene the two houses of Lancaster and Yorke (London, 1595). On the one hand, in this space I will be unable to offer adequate readings of the historical works of the historians I mention: I do not here interpret Guicciardini’s Storia d’Italia, Bacon’s Henry the Seventh, or the historical works of Samuel Daniel et al. I pick out some connected themes in what they say about history, whether or not it fully corresponds with their practice. On the other hand, I will be able to refer only tangentially to a few of the many treatises on how to write or read history, which have been grouped under the rubric of the artes historicae; on some of these, see Grafton, What Was History? Both commitments were influentially to be found in Cicero (see De oratore 2.62 (the first law of history is to not dare say what is false) and 2.36 (historia magistra vitae)), and frequently combined thereafter. Thus, Giovanni Pontano in the late fifteenth-century Actius: ‘What, I ask you, can be so contrary to history as falsehood, since history is said to be the guide of human life [vitae magistra]?’, in Giovanni Gioviano Pontano, Dialogues, vol. 2, ed. and tr. Julia Haig Gaisser, (Cambridge, MA, 2020), 314–15.

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beneath this view.9 The first problem is epistemic: even if we can accept the truth of the reported particulars, how can we be confident that they are sufficiently similar to be covered by the proposed generalization? And given such similarity of some particulars, what if there are countervailing instances that are unreported, or unrecognized because mis-described or under-described? And what is the nature of the abstracted rule – is it a rule of thumb, a historical law, or something between? Can it ground at least probabilistic prediction? What is its epistemic status and utility? The second problem is one of practical inference, a problem not of abstracting general claims from historical particulars but of drawing normative conclusions from historical facts. A maxim for action may seem to follow naturally from a historical generalization, though it requires a connection to value or motivation, and that what happened regularly in the past will happen reliably in the future. But is it the historian’s role to lay down such precepts, or even to state generalizations from past particulars? What then is the role of the interpreter of or commentator on historical instances, or for that matter the philosopher, the teacher, or each individual reader of the history? Should the role of the reader be to heed the historian’s teachings, to draw his or her own conclusions from the narrative, or to learn something that transcends all such sententious lessons? To track this particular set of such discussions, I will first focus briefly on Machiavelli and Guicciardini as sources of English politic history, considering some differences in their approach to particulars and general rules; move next to Philip Sidney’s late sixteenth-century criticism of history as normatively impotent or dangerous because of its commitment to recounting factual particulars; and then outline responses to Sidney’s position, especially Francis Bacon’s account of the value of such a commitment. Finally, I will indicate elements of Thomas Hobbes’ dialectical relation to Baconian politic history at its apogee in the 1620s, and raise brief concluding doubts about the view that he then repudiated history when turning to the timeless truths of political philosophy. Even the grouping of a generation or so of a handful of writers has elided important differences, not least in their conceptualizations of time and their basic orientations to history itself. For some who have been labelled ‘politic historians’, time stood still. Although they did focus on accounts of the rise and fall of politic or impolitic princes, such historians frequently posited humans with a nature constant over time who find themselves in similar or even recurrent situations, so that past times were thought to provide reliable guidance for the present and future, and a past prince could provide a perfect model for a present one. We can take as paradigmatic Machiavelli’s statement that the prince ought to read 9

The problems can seem inseparable for terminological reasons; for example, a ‘rule’ could mean either a general claim covering particular cases or a guiding norm, and ‘example’ can mean a particular instance or an exemplar worthy of imitation.

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histories in order to imitate excellent men.10 In the Discourses, Machiavelli says that we should not just admire the virtuous works we find in histories, but imitate them; the true knowledge of histories will allow us to learn from the examples (esempli) of the ancients how to put republics in order, maintain states, govern kingdoms, order the military and administer war, judge subjects, and increase empire.11 Machiavelli also provides examples of what to avoid, giving examples of instructive failure; and he became notorious for providing portraits of those who had succeeded by means that were understood to be wicked.12 Tracking both success and failure allowed a line to be drawn from examples from ancient Rome through examples from modern Italy that should continue forward to indicate future outcomes. Those who doubt the underlying constancy that validates the utility of imitating examples proceed ‘as if the sky, sun, elements, men had varied in motion, order, and power from what they were anciently’.13 In this sense, Machiavelli’s appeal to guiding exempla is founded on an assumption of sameness and recurrence, perpetual motion in static time. Polities and civilizations rise and fall according to regular necessities, a motor of these cycles being a constant 10

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Niccolò Machiavelli, Il Principe, ed. Giorgio Inglese, (Turin, 1995), 14.14, pp. 100–1. Gennaro Sasso discusses Machiavelli’s understanding of imitation of the past in his essay on the Discorsi in Niccolò Machiavelli, vol. 1, Il pensiero politico, 2nd ed. (Bologna, 1993), esp. 576–93. Niccolò Machiavelli, Discorsi sopra la prima deca di Tito Livio, ed. Francesco Bausi, (Rome, 2001), 1 Proemio 6–7. I focus on the Discorsi both because Machiavelli is there more explicit about history than in his historical works, and because when the politic historians are writing, consideration of Machiavelli and history is generally about the Discorsi. This spurs the efforts of Bacon and Hobbes to distinguish and separate such discourses from history. For an account tracing Machiavelli’s historical practice from the fabrications of La Vita di Castruccio Castracani da Lucca where he deploys myth in the service of a message, to the sometimes anti-Machiavellian pieties of the Istorie Fiorentine, see Robert Black, ‘Machiavelli and Humanist Historiography’, in Reading and Writing History from Bruni to Windschuttle: Essays in Honour of Gary Ianziti, ed. Christian Thorsten Callisen, (Farnham, 2014), 87–103. Consider also Felix Gilbert’s characterization, in Machiavelli and Guicciardini: Politics and History in Sixteenth-Century Florence (New York, 1984), 238–9: ‘[I]n his Florentine History Machiavelli adhered to the humanist principle that “history teaches by example”, only the “examples” which Machiavelli adduced were intended to demonstrate the existence and the functioning of political laws. Furthermore, the events which Machiavelli recounted are stylized in order to evince these laws.’ On instructive failure, see Anna Maria Cabrini, ‘La storia da non imitare: il versante negativo dell’esemplarità nelle Istorie fiorentine’, in Francesco Adorno and Giorgio Barberi Squarotti, eds., Cultura e scrittura di Machiavelli (Rome, 1998), 197–220. The utility of mala exempla was of course already an animating idea in ancient sources; so Machiavelli in the first preface to his discourses on Livy looks to Livy’s own preface (Praef., 10), where he identifies history as eminently salutary and fruitful because you can there look upon and learn from examples of all kinds (omnis exempli documenta), selecting for yourself and your commonwealth what to imitate and what to avoid (quod imitere quod vites). Cf., for example, the first paragraph of the preface of Leonardo Bruni’s History of the Florentine People (if we read history carefully, we may readily learn et quid sequare et quid vites); in his own preface to his Florentine Histories, Machiavelli emphasizes the aim of becoming wise via others’ danger (‘tis good to learne by others woes’, as Samuel Daniel puts it in The First Fowre Bookes, fol. 5v). This is a version of recurrence that depends not on inevitability, but evitability, as we are in principle able to avoid past failures rather than being doomed to repeat them. Machiavelli, Discorsi, 1, Proemio, 8.

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human nature.14 ‘One who considers present and ancient things easily knows how in all cities and in all peoples there are the same desires and the same humors, and how they were always thus.’15 Machiavelli concludes from this sameness through time that it is an easy thing for someone who examines the past with diligence to foresee (prevedere) future matters, and to apply the ancient remedies to them.16 Some prominent politic historians follow this Machiavellian pattern.17 Samuel Daniel, for example, in his Historie of England, writes that ‘the compasse of a few ages’ is: sufficient, both for example, and instruction, to the goverment of men. For had we the perticular occurrents of all ages, and all nations, it might more stuffe, but not better our understanding. We shall find still the same corespondencies to hold in the actions of men: Virtues and Vices the same, though rising and falling … the causes of the ruines, and mutations of states to be alike: and the trayne of affaires carried by precedent, in a course of Succession under like coulors.18 14

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See, for example, Machiavelli, Discorsi, 1.2 and 2.5. See also Jeffrey Dymond, ‘Human character and the formation of the state: reconsidering Machiavelli and Polybius 6’, Journal of the History of Ideas, 82:1 (2021), 29–50. Machiavelli ascribes an unspecified role to chance in the midst of the cyclical necessity in Discorsi, 1.2; it may be that the catalyst or the timing evade prediction, while the order and pattern are nonetheless necessary. John Najemy puts this prominent cyclical theory in the context of Machiavelli’s other theories of history, arguing that they are mutually incompatible, and that ‘[h]e abandons or even contradicts most of them’: ‘Machiavelli and history’, Renaissance Quarterly, 67 (2014), 1,131–64, at 1,153; more doubtful is Najemy’s view that Machiavelli engineers these contradictions for higher purposes. Machiavelli, Discorsi, 1.39.2, emphases added; cf. the similar statement at 3.43.2–3, and Discorsi, 1, Proemio, 8. The complexity of Machiavelli cannot be briefly compassed, and of course Machiavelli does sometimes emphasize contingency and variability through time, though such claims can be difficult to square with other commitments: for example, contrast Discorsi, 1.32.6 with 1.39.3. The Machiavelli outlined here may be thought of as the Machiavelli taken up by some politic historians, who broadly resembles the Machiavelli so trenchantly criticized by Guicciardini in his 1530 Considerazioni on Machiavelli’s Discorsi. This is a figure who is more prominent in Italian scholarship, where a methodological contrast with Guicciardini has long been influential, crystallized in the formula of Guido De Ruggiero that Machiavelli is ‘l’uomo delle regole’ and Guicciardini ‘l’uomo delle eccezioni’, Storia della filosofia, Part 3, Rinascimento riforma e controriforma (Bari, 1930), vol. 2, p. 71. For a nuanced exploration of this theme, see Gennaro Sasso’s ‘I volti del “particulare”’, in his Per Francesco Guicciardini. Quattro studi (Rome, 1984), 1–45. For a reading of Machiavelli as a thinker of exceptions and qualifications, see Carlo Ginzburg, Nondimanco: Machiavelli, Pascal (Milan, 2018). Machiavelli, Discorsi, 1.39.3. Machiavelli does caution against following an ancient model if one’s own circumstances are crucially different, as in the case of Cleomenes’ inapt imitation of Lycurgus in Discorsi, 1.9.15–18. Nonetheless, this is embedded in a chapter, and within a work, dedicated to the imitation of ancient examples. I do not mean to suggest that the pattern is uniquely Machiavellian. It is reinforced, for example, by the Renaissance popularity of Tacitean similitudo temporum, the similarity of times, and of Tacitean maxims that seemed to transcend time and place thanks to an unimproved human nature. According to a study of conceptions of the shape or form of history, the most common view in the sixteenth and seventeenth centuries was that time was cyclical: Achsah Guibbory, The Map of Time: SeventeenthCentury English Literature and Ideas of Pattern in History (Urbana and Chicago, 1986). Samuel Daniel, The First Part of the Historie of England (London, 1612), 3; cf. sig. A3v–A4r. Cf. Machiavelli, Discorsi, 1.2 and his prefaces to Books 1 and 2. Cf. also Daniel, The Civile Wares betweene

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And Fulke Greville, in A Dedication to Sir Philip Sidney, says that it was ‘out of the credible almanac of history’ that Sidney ‘registered the growth, health, disease and periods of governments’, and the regular causes of the rise and fall of each form; he thus ranks him with the ‘prophets’ who could ‘prognosticate the good or ill of all governments,’ and ‘by consequence’ rather than by inspiration ‘judge of things to come’.19 Professing to take Sidney as his model for the prudent ambassador, Alberico Gentili had argued that ‘history is of the greatest utility’: ‘our prudence is nothing other than the observation of results (eventorum observatio), and knowledge (scientia) of the present and the future are drawn from the past as if from a spring.’20 Hardly more than a page before his famous encomium of Machiavelli, Gentili writes that because ‘men are the same … it is necessary that the same effects come to be’, and ‘all times are joined by the highest similarity’: ‘if therefore the sky and the earth remain forever the same, forever the same the ways of nations (rationes populorum) will remain.’21 History discloses temporal persistence and recurrence, and may even be said to reveal or produce a general synchrony.22 It is to Fulke Greville that Samuel Daniel dedicates his Musophilus of 1599, where he writes that in writing the past is made present: O blessed letters that combine in one All ages past, and make one live with all,

19 20 21 22

the Howses of Lancaster and Yorke corrected and continued (London, 1609), sig. A3r: ‘Ambition, Faction, and Affections … only vary but in time. Man is a creature of the same dimension he was …’; and Daniel, letter to Cranborne in 1605, as quoted by Levy, ‘Hayward, Daniel, and the beginnings of politic history’, 22: ‘the universall notions of the affayres of men, wc in all ages beare the same resemblances, and are measured by one and the same foote of understanding. No tyme but brought forth the like concurrencies, the like interstriving for place and dignitie, the like supplantations, rysings & overthrowes, so yt there is nothing new under the Sunne, nothing in theas tymes yt is not in bookes, nor in bookes that is not in theas tymes’; and Daniel, The Tragedie of Philotas (London, 1605), sig. A4v (separately paginated in Certaine Small Poems Lately Printed). A number of passages in Daniel may be traceable to Machiavelli; compare, for example, Musophilus: Containing a generall defence of learning (London, 1599), sig. E1v–E2r (separately paginated in The Poeticall Essayes of Sam. Danyel. Newly corrected and augmented) with Discorsi, 3.1. For suggestions of Greville’s indebtedness to Machiavelli, see Napoleone Orsini, Fulke Greville. Tra il mondo e Dio (Milan and Messina, 1941), 75–87. Daniel does warn his readers against ‘apprehend[ing] not the progresses in the affaires of mankind’, and that they should not ‘take all their reason from the example and Idea of the present Customes they see in use’ (First Part of the Historie, 6). The Prose Works of Fulke Greville, Lorde Brooke, ed. John Gouws, (Oxford, 1986), 84. Alberico Gentili, De legationibus, libri tres (London, 1585), ‘101’ [109] (sig. O3r), 107. This work was re-published in 1594, 1596 and 1607. Gentili, De legationibus, 107–108. Samuel Daniel says that ‘The sure recordes of Bookes’ about the past show the same pattern in the present and for the future; ‘In them we finde that nothing can accrew / To man, and his condition that is new’: These ancient representments of times past; Tell us that men have, doo, and alwayes runne The self same line of action, and do cast Their course alike … (Philotas, sig. A4v).

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By you we do confer with who are gone, And the dead living unto councell call.23

Others, more sceptical of such a civil séance, were committed to ‘the perticular occurrents’, and to a model of politic history that was fundamentally inconsistent with a humanist ideal of history as providing rules for behaviour or as perennial philosophy teaching by examples. For the history of politic history was also marked by attention to circumstantial complexity and doubts about or denial of strong similarity through time, a denial that allowed for the past to be seen as the past rather than a previous version of the present. With their focus on England around the early seventeenth century, scholars of politic history have tended to lump together its earlier models, although they differed on these important issues. The historiographical assimilation of disparate predecessors may have been encouraged by taking Bacon as the paradigmatic politic historian, who takes his bearings by turns from Tacitus, Machiavelli, Guicciardini and others. But that is not to say that these beacons always guide Bacon in the same direction. Guicciardini’s views about time’s teachings were expressly distinguished from Machiavelli’s, and their English followers reflect the disagreement.24 Historians of historiography, of all people, should be wary of anachronistic canons of judgement and of implicit historical meliorism; but they nonetheless tend to assess past historians in terms of what history was later to become. Later historians of politic history have accordingly admired the politic historians’ disenchanted outlook on how the world works, or their turn away from moralism toward secularism, while disapproving of how they continue to draw lessons or rules, though prudential rather than moral. Distinguishing between politic historians may thus allow for more nuanced evaluation as well as a more nuanced description. 23

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Samuel Daniel, Musophilus, sig. B3v. See Fulke Greville’s Tragedy of Mustapha, where Eternitie addresses Time: ‘Because in your vast mouth you hold your Tayle, / As coupling Ages past with times to come’, in Certaine learned and elegant vvorkes of the Right Honorable Fulke Lord Brooke written in his youth … (London, 1633), 126; this dialogue between Time and Eternity was added sometime between the 1609 printing of Mustapha and Greville’s death in 1628. Again, Machiavelli does say things that indicate doubts or denials of temporal cyclicality, predictability and the constancy of human nature; indeed, Guicciardini developed his mature view in an interweaving of concordance and contestation with Machiavelli. I accordingly do not wish to provide a simple division of the English politic historians into Machiavellians and Guicciardinians; not least, they were all in some sense Machiavellians, and Guicciardini was often admired in England in this period for characteristics, such as a disenchanted view of human motivation, that were also understood as Machiavellian. I wish instead to suggest that in some of the politic historians there was a particularly Guicciardinian outlook that has largely been ignored when deploying the historiographical category. See, for example, the equation of the teachings of Tacitus, Machiavelli and Guicciardini by F. J. Levy, ‘Hayward, Daniel, and the beginnings of politic history’, 8–9. I focus briefly on Machiavelli and Guicciardini, but they were working in a broader historiographical context; for a study of both authors in that context, focusing on their integration of discorso or authorial judgement with narrazione and the differing temporalities of these modes, see Andrea Matucci, Machiavelli nella storiografia fiorentina: per la storia di un genere letterario (Florence, 1991).

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In Guicciardini’s Considerazioni on Machiavelli’s Discorsi, he argues that Machiavelli posits things ‘too absolutely’ (troppo assolutamente), that he loves laying down as an absolute rule (regola assoluta) what at least admits of many exceptions and is not prudent to follow.25 It is true that Machiavelli frequently insists that we cannot give a single answer to a political or military question until a distinction or two are introduced. In Discourses, 2.12, for example, Machiavelli contends that we cannot simply say whether it is better to await a declared enemy at home or go to meet him, concluding instead that a power unaccustomed to war and dependent on the arms of others should go to fight the enemy, whereas one accustomed to war and dependent on the people’s own arms should await the enemy at home. Guicciardini shakes his head at Machiavelli’s pride in this distinction, insisting that a profusion of further differentiations is essential, and that the matter is much more complicated than Machiavelli has understood.26 Guicciardini’s complaint in his consideration on Discourses, 1.40 is emblematic: ‘These are decisions that cannot be taken according to a fixed rule [con una regola ferma], but the conclusion must be drawn from the humours of that city, from how things are that vary according to the conditions of the times, and other changing events.’ To draw a line from some few examples to a conclusion is often doubtful, for one can find differing examples (‘gli esempli si truovano diversi’) that would support contrary general positions.27 And men have varied from what they were anciently; there are fundamental discontinuities through time. ‘Experience has discovered many things that were not considered by the ancients,’ he says in his consideration on Discourses, 2.24, ‘and moreover the foundations being different, some things are suitable or necessary to one that were not suitable or necessary to others’.28 25

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Guicciardini, Considerazioni on the Discorsi, 1.3, 1.26, in Francesco Guicciardini, Opere, vol. 8, Scritti politici e Ricordi, ed. Roberto Palmarocchi, (Bari, 1933), 8, 33. Machiavelli’s formulation of ‘general rules’ of politics include the ‘regula generale’ of Principe, 3.50, the ‘regola generale’ of Discorsi, 1.9.5, and the ‘regola verissima’ of Discorsi, 3.22.11; cf. also Principe, 3.36, Discorsi, 2.18.10, etc. Guicciardini is famous for his own aphorisms or maxims, especially in the frequently re-issued Ricordi (which he intended, at least initially, for private family use, and did not regard as a work of history). He recognizes that his own ricordi sometimes take the form of general claims or rules, because one cannot communicate in books – ‘in su’ libri’ is his characteristic expression – the variety of distinctions and the range of possible exceptions. What is required is adaptable daily discretion, which has to go beyond what a book can teach, but the book can point to the kinds of complications to which one must be attuned or the kind of capacities one must develop (see esp. Ricordi B 35 with B 121). Of many cases, consider Ricordi C 157: ‘one cannot go wrong by believing little, [or] by trusting little.’ This is a precept that admits of qualification and exception; yet, as here, many of the maxims that Guicciardini articulates are about the dangers that attend following rules or generalizations. This is not a simple self-contradiction. Note, too, that Guicciardini’s specific objections to Machiavelli’s rules are often that he draws them crudely or mistakenly, maintaining, for example (as he says in his considerations on Discorsi, 1.10), that Machiavelli assimilates cases that are different and confounds the examples. Guicciardini, Considerazioni on Discorsi, 2.12, Opere, vol. 8, pp. 51–3. Guicciardini, Considerazioni on Discorsi, 1.40, in Opere, vol. 8, p. 41. See Machiavelli, Discorsi, 1.18. 3. Guicciardini, Considerazioni on Discorsi, 2.24, in Opere, vol. 8, p. 57. In particular, Guicciardini objects in Considerazioni, Ricordi, and Dialogo del reggimento that the circumstances of the Romans, and the Romans themselves, were too different for his contemporaries to regulate themselves according to their examples.

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Guicciardini’s resultant scepticism was unblinking: ‘To judge by examples is very mistaken,’ he says in his Ricordi. ‘If they are not similar in each and every respect [in tutto e per tutto], they are of no use, since every tiny difference in the case can be a cause of the greatest variation in the effect.’29 Similarly, in his History of Italy, Guicciardini castigates Piero de’ Medici’s attempt to imitate the example of his father’s peacemaking policy of fifteen years earlier: ‘But governing oneself by examples is undoubtedly very dangerous if the same considerations [ragioni] do not correspond, not only in general but in all particulars, if things are not managed with the same prudence, and if, in addition to all other fundamentals, one does not have the same fortune on one’s side’.30 Or consider Ricordi C 6: ‘It is a great error to speak of the things of the world absolutely and without making distinctions and, so to speak, by rule [per regola]; for almost everything admits of distinctions and exceptions because of the variety of circumstances.’ The traditional view was that philosophy provided precepts while history provided examples, and the proponents of history usually defended their turf by insisting on the greater efficacy of examples to instruct and motivate.31 But if examples are of no use, how could history have any purpose at all? And it gets worse, for, according to Guicciardini, ‘every least particular that varies is apt to make a conclusion vary. Yet the things of this world cannot be judged from afar, but have to be judged and resolved day by day.’32 If we cannot judge from afar, then what remains of historical judgement? And again, if results may well shift with each tiny difference in circumstance, how can history provide guidance for the future?33

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Guicciardini, Ricordi C 117. ‘Ma è senza dubbio molto pericoloso il governarsi con gli esempli se non concorrono, non solo in generale ma in tutti i particolari, le medesime ragioni, se le cose non sono regolate con la medesima prudenza, e se, oltre a tutti gli altri fondamenti, non v’ha la parte sua la medesima fortuna,’ Francesco Guicciardini, Storia d’Italia, ed. Ettore Mazzali, (Milan, 1988)), 107. Guicciardini does occasionally claim that a regola can be drawn from the similarity of events through time: see Ricordi C 76 and the parallels in Ricordi A 91 and B 114, along with the passages from Dialogo del reggimento di Firenze and Contro l’accordo noted by Varotti, Ricordi, 155; none of these are works of history. Guicciardini also sometimes claims or implies constancy through time, for example, in Ricordi C 12 and C 76, notably when drawing on Tacitus (cf. Ricordi C 13, C 18). So Jean Bodin, in the opening of his Methodus ad facilem historiarum cognitionem, ed. Sara Miglietti, (Pisa, 2013), 82: ‘Certainly philosophy … sets forth the supreme good and bad, [yet] would lie lifeless if it weren’t for the history of matters of the past … from which we can distill sure precepts about the things to seek and to flee.’ Cf. Thomas Blundeville, The true order and methode of wryting and reading Hystories, according to the precepts of Francisco Patricio and Accontio Tridentino, two Italian writers (London, 1574), sig. D3v-D4r; and [William Cavendish], Horae subsecivae (London, 1620), 220–1. Guicciardini, Ricordi C 114: ‘ogni minimo particulare che varii è atto a fare variare una conclusione. Però non si possono giudicare le cose del mondo sì da discosto, ma bisogna giudicarle e resolverle giornata per giornata.’ He also calls into question our knowledge of what is here and now, for example in Ricordi C 141. Guicciardini frequently insists on the unpredictability of the future: see, for example, Ricordi C 22, 23, 58, 81, 114, 182 and 207. (I sometimes focus on the Ricordi in this chapter without multiplying references to closely related expressions in other works by Guicciardini.)

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Guicciardini’s answer is to double down, and insist on greater particularity, a­ ttention to contingencies, individuation of precise outcomes, and the details of the motivating policies and the decisive personalities. Much has been made of Bacon’s indebtedness to Machiavelli, but on this score he owes more to Guicciardini.34 Not least, both cast doubt on Machiavelli’s application of historical models to contemporary politics, his historical selectivity, and his patchwork of history and precept. Guicciardini and Bacon are in principle dedicated to a thorough collection of particulars and a keen analysis of them, and thus have conceptions of history that are at once warier and more demanding than the conceptions of some of the English Tacitists or Machiavellians with whom they have been put in company.35 For Guicciardini, time moves forward not as a replaying of types on a historical stage, but as a constantly shifting complex of differences, details, and contingencies that mark each politic moment as importantly distinct from its predecessors, in an interplay of similarity and difference that requires powerful analysis to grasp such coherence as there is – or, more usually, to see through apparent coherence and illusory analogies. Applying simple rules is less needed for this than distinguishing the character of cases, times and people, and for this discretion is necessary.36 In turn, experience and its historical collection are to be used to develop all-important discretion, the apprehension of what is discrete and the capacity to distinguish. Although Guicciardini was criticizing Machiavelli when he insisted that the proper office of the historian was dedicated not to formulating general rules but instead to the irreducible particulars, this understanding of history has its own classical foundations, at which we can only gesture here. In the Poetics – first printed 34

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Luciani makes a good case that ‘an analysis of Bacon’s History tends to show that he adhered to Guicciardini’s method in preference to Machiavelli’s’, that ‘Bacon followed the trend of contemporary political historians in preferring Guicciardini to Machiavelli’, and ‘that of modern historians Guicciardini was the one that Bacon most admired’: Vincent Luciani, ‘Bacon and Guicciardini’, PMLA, 62:1 (1947), 96–113, at 109, 112. A few of Bacon’s invocations of Guicciardini come when he is arguing for a general claim or is invoking an example from the Storia d’Italia to argue for a parallel policy in what are simply assumed to be similar current circumstances. These do not violate Bacon’s strictures about history, as none of these instances are in Bacon’s own historical works; but the requirement that the historian provide true particulars in all of their difference may be of limited reach if the users of such a history are not similarly bound to acknowledge such differences. One striking indication of Guicciardini’s pre-eminence as a historian in the period is that, having criticized Cicero for calling the lying Herodotus the father of history (historiae parentem), Jean Bodin refers to ‘the father of history himself, Guicciardini (ipso historiae parente Guichardino)’, Methodus, 168, 178. I will focus on Bacon (and Hobbes) below, but Guicciardini had other followers. Cf., for example, Robert Johnson, Essaies, or Rather Imperfect Offers (London, 1601), sig. D4v: ‘In making use of this Historie knowledge, we must not ascertaine to our selves the sequell of any thing to fall out iust according to the like case in the Historie, but determine of it, as a thing apte to chance otherwise: for an example only enformes a likelyhoode, and if we governe our counselles by it, there must be a concurrance of the same reasons, not onelie in generall, but also in particularities.’ Guicciardini, Ricordi C 186: ‘Non si può in effetto procedere sempre con una regola indistinta e ferma … bisogna procedere distinguendo la qualità delle persone, de’ casi e de’ tempi, e a questo è necessaria la discrezione.’ Cf., for example, C 6.

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(in Latin) in 1498 – Aristotle distinguishes poetry or poiēsis from historia.37 ‘It is not the work of a poet’, he there writes, ‘to relate things that have happened, but things that could happen, that is, that are possible in accordance with likelihood or necessity.’ Thus, ‘poetry is more philosophical and more excellent than history, because poetry deals more with universals, history with particulars.’ Aristotle explains that poetry provides universals about what a kind of person will say or do; although she or he will be given a particular name like Helen or Agamemnon, nonetheless each stands for a type. The stuff of history is instead actual particular actions and occurrences, ‘what Alcibiades did or had done to him.’38 Aristotle’s account of history here should be distinguished from what he elsewhere describes as how history can be used, in particular the use of historical examples to make arguments about the present or future. He accepts that such uses may be legitimate: because future events will generally be like past events, historical examples are anyway more useful in deliberation than fables or invented cases.39 Arguing from historical examples has the strength and weakness of inductive argument from similitude. An example or paradeigma just is an induction, he says, a reasoning neither from part to whole nor whole to part, but like to like: ‘For example, that Dionysius is plotting tyranny because he is seeking a bodyguard, for Peisistratus, when plotting earlier, sought a bodyguard and after receiving it made himself tyrant, and Theagenes in Megara … all become examples for Dionysius, of whom they do not yet know whether he makes his demand for this reason.’40 In this sense, historical argument (at least of this common kind) is a kind of stretched metaphor: Aristotle treats simile (eikōn, or likeness) as an expanded metaphor, and he treats historical argument as an expanded simile.41 Historical narrative is the stuff from which such metaphors are made, but is not itself metaphorical, being confined to recounting events in their particularity rather than asserting similarities across time despite the manifold differentia. 37

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Georgio Valla Placentino interprete … Aristotelis Ars poetica … (Venice, 1498), re-printed in 1504 and 1515. The Greek text of the Poetics was first printed a decade after Valla’s Latin. I refer briefly to Aristotle on this distinction, but there are other Aristotelian roots for the following discussion, for example, in his distinction between phronēsis and epistēmē. Aristotle, Poetics, 9, 1451a36–b11. Aristotle, Rhetoric, 2.20.9, 1394a; cf. 3.17.5, 1418a. Aristotle, Rhetoric, 1.2.19, 1157b; cf. 1.2.9, 1156b and 2.20.1–9, 1393a–1394a. Translation here from Aristotle, On Rhetoric: A Theory of Civic Discourse, tr. George A. Kennedy, 2nd ed. (New York, 2007). This treatment of example as a weak kind of reasoning from like to like remains influential; see, for example, Thomas Blundeville, The art of logike (London, 1599), 95, 148–52. Blundeville says (152) that reasoning from examples does not provide proof, but is useful to persuade or dissuade in moral matters. In The true order and methode of wryting and reading Hystories, sig. E4r, Blundeville had maintained that in histories we must observe how a like effect springs from a like cause: ‘the like of his like, for the diversitie of things being a thing infinite, can not be observed’, here following Francesco Patrizi, Della historia diece dialoghi (Venice, 1560), fol. 53r–v. I build this characterization on Aristotle, Rhetoric, 3.4, 1406b–1407a; 3.10.2, 1410b; and 3.11.11–15, 1413a, together with the passages cited in the previous note.

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Roman theorists tended to emphasize the complementarity of history and philosophy.42 This can be seen in the influential slogan that ‘history is philosophy by examples.’43 When the two were distinguished, it was sometimes to philosophy’s disadvantage. Historical exempla are more capable of motivating to action because they are vivid (unlike philosophical precepts), and because they are true (unlike fictional exempla, and potentially unlike philosophical precepts, too).44 Livy and a number of other Roman historians did not see themselves as providing a true narrative rather than a guide to moral behaviour, for they aimed to commemorate exemplary persons or actions to provide practical moral lessons.45 Exempla are no less normative than precepts, but they are more forceful: ‘The way is long by way of precepts [praecepta]’, Seneca declared, ‘but short and effective through examples [exempla]’.46 Quintilian also insisted on the superiority of exempla over praecepta, preferring historical examples of Roman accomplishment to Greek precepts.47 Yet he recognizes that Greeks argue from paradeigmata, ‘both generally of any matching of similar things, and especially with reference to things which rest on the authority of history’. Romans have distinguished between similitudo and exemplum, he says; but ‘exemplum also involves likeness and a similitudo is an Example’.48 Like similes, however, comparisons and parallels are only similar in part; so every example also involves dissimilarity. And rhetorical effectiveness, Quintilian goes on to argue, also depends on differentiation of kind, manner, time, place, and so on.49 Because examples and analogies and other appeals to similarity may deceive, we must in any case use judgement (iudicium) to distinguish the respects in which two or more things are alike and those in which they are unlike.50 Nonetheless, Quintilian thinks that, for his purposes, he need not follow those who have divided all such things 42 43

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See, for example, Cicero, Brutus, 161–2, 322. Ps.–Dionysius, Ars rhetorica, 11.2: historia philosophia estin ek paradeigmatōn, a tag the author ­attributes to Thucydides: Dionysius of Halicarnassus, Ars rhetorica, ed. Hermann Usener, (Leipzig, 1895), 124. See Cicero De oratore, 2.62 on the fundamental laws of history. From a large literature, three points of reference: Jane D. Chaplin, Livy’s Exemplary History (Oxford, 2000); Mattthew B. Roller, Models from the Past in Roman Culture: A World of Exempla (Cambridge, 2018); and Rebecca Langlands, Exemplary Ethics in Ancient Rome (Cambridge, 2019). In promoting imitation of the ancient examples in his preface to his discourses on Livy, Machiavelli is imitating Livy’s insistence in his preface that history should be studied in order to find examples to imitate (see esp. Livy Praef., 9–11). Seneca, Epistulae morales, 6.5: longum iter est per praecepta, breve et efficax per exempla. Quintilian, Institutiones oratoriae, 12.2.30; cf. the opening of Cicero’s Tusculan Disputations. Quintilian recommends following both good examples and precepts, even as he particularly urges a constant consideration of the words and deeds of the past, 12.2.27 and 29. Quintilian, Institutiones oratoriae, 5.11.1–2, in the translation by Donald A. Russell, The Orator’s Education (Cambridge, MA, 2001). For the distinction, see Cicero, De inventione, 1.49. Quintilian seems to retain something of a distinction, arguing as he does (5.11.6) that exemplum is the most powerful similitudo. Quintilian, 5.11.13. Quintilian, 5.11.26–27.

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into the minutest parts – systematically specifying what is more and less similar, and what is similar and different in which ways – which he calls inani diligentia, a foolish carefulness.51 In the English Renaissance, Aristotle’s argument for poetry’s superiority to history is explicitly taken up – and turned against philosophy itself – by Philip Sidney in his Defence of Poetry, written around 1580 and published in 1595.52 ‘The ending end of all earthly learning, being virtuous action’, Sidney writes, ‘those skills that most serve to bring forth that have a most just title to be princes over all the rest’.53 Sidney targets two pretenders to this princely title. He attacks the philosopher with a familiar weapon from the rhetorical tradition, insisting that he is helpless to clarify or motivate without examples; and he dispatches the historian with the implement later known as Hume’s guillotine: The philosopher, therefore, and the historian are they which would win the goal, the one by precept, the other by example. But both, not having both, do both halt. For the philosopher, setting down with thorny arguments the bare rule, is so hard of utterance and so misty to be conceived, that one that hath no other guide but him shall wade in him till he be old before he shall find sufficient cause to be honest. For his knowledge standeth so upon the abstract and general, that happy is that man who may understand him, and more happy that can apply what he doth understand. On the other side, the historian, wanting the precept, is so tied, not to what should be but to what is, to the particular truth of things and not to the general reason of things, that his example draweth no necessary consequence.54

Sidney considers the objection that the historian’s account of what was done itself suggests what ought to be, for it indicates what will happen and thus how we ought to proceed. After hinting that general precepts or rules cannot emerge by themselves from the particulars of history, he focusses on a related but different reply. ‘The answer is manifest: that, if he stand upon that was’, it is ‘as if he should argue, because it rained yesterday, therefore it should rain today… the historian in his bare Was hath many times that which we call fortune to overrule the best wisdom.’55 51 52

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Quintilian, 5.11.30–31. Blair Worden situates Sidney in the circle of politic historians, arguing that – despite attacks in the Defence – for Sidney ‘history is not the rival of poetry but its partner’: The Sound of Virtue: Philip Sidney’s Arcadia and Elizabethan Politics (New Haven, 1996), 252–65, quotation at 252. Sidney is arguably at the centre of this circle until his death, as is Robert Devereux, the 2nd earl of Essex, thereafter. Philip Sidney, A Defence of Poetry, in Katherine Duncan-Jones and Jan van Dorsten, eds., Miscellaneous Prose of Sir Philip Sidney (Oxford, 1973), 83. Sidney, Defence of Poetry, 85. Sidney, Defence of Poetry, 88–9; first italics added for clarity. Sidney here argues that to move from an example to ‘a conjectured likelihood’ requires the historian to appeal to reason; by the same token, the poet can appeal directly to ‘that which is most reasonable (be it in warlike, politic, or private matters)’, and then frame his example accordingly.

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Sidney springs a trap for the Renaissance historian, catching him between his position that history collects true particulars, thus providing reliable guidance for action, and his tenet that history is a storehouse of exempla of good and evil, a register of the rewards of virtue and the punishment of vice. If it is merely the collection of true particulars, history does not lead us to the ‘ending end’ of virtuous action, which requires more than the unedifying truth of what happened. It is the poetic heroes of epic and tragedy who show us how in the end the good prevail and the wicked fall. ‘But the history, being captived to the truth of a foolish world’, Sidney writes, ‘is many times a terror from well-doing, and an encouragement to unbridled wickedness’.56 History shows us Socrates put to death like a traitor, Cicero slain, the virtuous Cato driven to kill himself; yet the cruel Severus living prosperously, and the rebel Caesar held in highest honour. If history cannot guide us, why read history? If history is our guide, why be good? We can discern a series of different replies to this challenge, each of which will be illustrated in what follows by a representative: a denial that historically the bad have prevailed and the good have failed (Ralegh); an argument that a study of the past flourishing of evil promotes awareness of and a more civil attitude toward the better rule under which we live (the author of the epistle to the reader in Savile’s Tacitus); a specification that histories of wickedness can be usefully read by those who are sufficiently morally educated (Keckermann); and an insistence both that anyone is more likely to be destroyed by evil who has not read about its various forms, and that it is precisely the full range of particulars of all kinds that can educate us, especially in developing the capacity of judgement (Bacon). One way to reply to the criticism that a true history would give us examples of vice rewarded and virtue well punished was providentialism. This comes through strongly in Walter Ralegh’s 1614 History of the World, in which he gives examples to show that ‘the iudgements of GOD’ ensure that ‘ill doing hath alwaies beene attended with ill successe’.57 Although ‘the Sea of examples hath no bottome’, the 56

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Sidney, Defence of Poetry, 90. Cf. William Cornwallis, on ‘Historie, which resembles, counsailours that advise nothing but what they themselves have done, which study is not without daunger, for it is so bound to truth, that it must relate falshood, & continue rather in relation then in advise’, Essayes (London, 1600–1601), sig. Ii6v. Walter Ralegh, History of the World (London, 1614), sig. A2v–A3r. See the illustrated frontispiece, which shows the eye of Providentia overseeing Fama bona and Fama mala. See also Eternity’s address to Time in Fulke Greville’s Mustapha, in Certaine learned and elegant vvorkes of the Right Honorable Fulke Lord Brooke, 127: ‘I, that in Causes worke th’Effects Succession, / Giuing both Good, and Ill, their destinie.’ In Greville’s case, there is some ambiguity about whether such outcomes reliably follow in the temporal realm, but it was frequently claimed that history’s basic purpose was to show just this. See, for example, Jean Bernaerts, De utilitate legendae historiae libri duo (Antwerp, 1593), 21: ‘[History] will deliver the surest precepts of what is to be sought and avoided (rerum expetendarum ac fugiendarum certissima praecepta), the rewards of good deeds, the punishments of bad deeds, the rules for governing the Commonwealth, and the manner of preserving military discipline, not only in the words, but in the examples of all nations.’ This probably follows Bodin’s discussion ‘de

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verdict of all ages is clear, and it is no wonder that Ralegh asserts of history that ‘yea it hath triumphed ouer time’.58 ‘In a word’, he writes, ‘wee may gather out of History a policy no lesse wise than eternall; by the comparison and application of other mens fore-passed miseries with our owne like errours & ill deseruings.’59 But this was just a flat denial of Sidney’s charge, and left open the concern that ceding the historical stage to the wicked was improper and dangerous regardless of any later fall. A rather less self-critical answer was given in the epistle to the reader of Henry Savile’s 1591 translation of Tacitus.60 The author writes: For Historie, since we are easlier taught by example then by precept, what studie can profit us so much, as that which gives us patternes either to follow or to flye, of the best and worst men of all estates, cuntries, and times that ever were? … If thou mislike their warres be thankfull for thine owne peace; if thou doest abhorre their tyrannies, love and reverence thine owne wise, iust, and excelent Prince. If thou doest detest their Anarchie, acknowledge our owne happie governement, and thanke god for her, under whom England enioyes as manie benefites, as ever Rome did suffer miseries under the greatest Tyrant.

While Ralegh recommended studying the wicked past the better to contemplate our own wickedness and reckon with the inevitable result should we not change course, the author of this epistle urged his readers – though consciously in full view of a potential royal reader, too – to contemplate the wickedness recorded by Tacitus in the English version they had just opened the better to appreciate the goodness of their own situation. A vivid portrait of ancient tyranny (and war) heightens by contrast the goodness of England’s government (and peace), with a view to promoting or being seen to promote a contented obedience.61

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utilitate historiarum’ in his Methodus: from all of the sayings, deeds, and counsels of history, we can not only readily explain the present, but even infer the future, and forge the surest precepts of what is to be sought and avoided (certissima rerum expetendarum ac fugiendarum praecepta conflantur). Bodin claims that ‘the very greatest benefit of history is indeed that some may be roused to virtue (ad virtutem inflammari) and others deterred from vice (a vitiis deterreri)’, Methodus, 82; without either a sacred or secular providentialism, such a result would seem to depend more on the art than the truthfulness of the historian. Cf. also Blundeville, The true order and methode, sigs. F3r–v and H2r, where he follows Jacopo Aconcio’s 1564 Delle osservationi et avvertimenti che haver si debbono nel legger delle historie. Ralegh, History of the World, sig. A2r. Ibid. See Fulke Greville: ‘the vices of former ages being so like to these of this age as it will be easy to find out some affinity or resemblance between them’, Dedication to Sir Philip Sidney in Prose Works, ed. Gouws, 135. The Ende of Nero and Beginning of Galba. Fower Bookes of the Histories of Cornelius Tacitus, tr. Henry Savile, (1591), sig. ¶3r-v. The epistle is signed ‘A. B.’ and may be by Anthony Bacon. Ben Jonson and Edmund Bolton, however, ascribe the epistle to Essex, an enthusiastic student of Tacitus. Compare the epistle (‘A. P. to the Reader’) in Hayward’s 1599 Henry IIII, for which Essex was held responsible during his trial for treason: ‘for examples are of greater force to stirre vnto vertue, then bare precepts’ (sig. A3v). See also Robert Johnson, Essaies, sig. D4r.

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An intense concern with what Sidney had called history’s ‘encouragement to unbridled wickedness’ focussed on this question of exposing readers to the evils to be found in Tacitus (whether or not he was himself considered to be ‘the wickedest of all writers’).62 Isaac Casaubon, fulminating against Tacitus and recommending Polybius in his edition of 1609, the year before he moved to England, argued that just as we improve in the presence of good examples, so bad examples harm us, for little by little they sink into our souls, and have the force of precepts that are frequently read or heard.63 A Commentary on the Nature and Properties of History, by Bartholomäus Keckermann, took a different position the following year. Keckermann suggested that those who were prepared with a training in the precepts of moral and political philosophy would be equipped to handle a history stocked with such bad examples, for they would understand their particular badness in relation to those universal precepts.64 ‘These precepts are demonstrated and illustrated by examples from history’: history is the explication and knowledge of particular or individual things, to the end that from them we can better understand universals and have them confirmed.65 Universal precepts are nevertheless not the stuff of history itself; history has an important but subservient role to play, being in itself a limitless profusion of particulars. History must serve the proper arts, disciplines, and sciences, each of which can bring method to bear to show the meaning of the particulars by placing them in order. This requires logic.66 But it also requires moral philosophy to assess instances of wickedness according to action, person, place and time. Elsewhere in Keckermann we find Alberico Gentili’s judgement that Machiavelli exposed evil rather than taught it: he shrewdly presented the truth of the tyrant

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The judgement of Tacitus is Guillaume Budé’s, in De asse et partibus eius libri quinque, as contested by Jean Bodin in his Methodus, 194–6. I will not here trace the debates between Tacitists and antiTacitists, on which there is a substantial literature. Isaac Casaubon, introducing Πολυβίου του Λυκόρτα Μεγαλοπολίτου Ιστοριών τα σωζόμενα (Paris, 1609), sig. ō3r: ‘Vt bona exempla, si saepe ob oculos versentur, proficiunt, etiam non sentientibus nobis; sic mala nocent: paullatim namque descendunt in animos, & vim praeceptorum obtinet frequenter legere aut frequenter audire.’ Cf. the objection considered by Johnson, that ‘the conversing in Tacitus doth deterre men from doing worthilie’, for ‘the knowledge of evill doth induce and draw men to effect’ or imitate it, especially when they see the wicked succeed and the virtuous die like traitors, Essaies, sig. D3r-v. Bartholomäus Keckermann, De natura et proprietatibus historiae, commentarius (Hanau, 1610); see the discussion at 9–10, 48–65. Keckermann was read in England, and central elements of his position had already been maintained there in some form. Cf., for example, Roger Ascham in The Scholemaster (London, 1570): ‘Surely long experience doth profit much. But most, and almost only to him (if we mean honest affairs) that is diligently before instructed with the precepts of well doing’ (The Whole Works of Roger Ascham, ed. J. A. Giles, vol. 3 (1864, reprinted New York, 1965), 136). Keckermann, De natura et proprietatibus historiae, 49, 8. Earlier Renaissance writers like Coluccio Salutati and Pier Paolo Vergerio the Elder propounded other versions of the notion that history is philosophy by examples: see Myron P. Gilmore, ‘The Renaissance conception of the lessons of history,’ 1–37 of his Humanists and Jurists: Six Studies in the Renaissance (Cambridge, MA, 1963). Keckermann, De natura et proprietatibus historiae, 15: ‘no one can write history properly who is not a good logician.’

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‘by making public his secrets (arcanis) and showing him naked to the wretched peoples’.67 Gentili there (in the work he dedicated to Sidney) argues, however, for a view of the relation between philosophy and history that is somewhat different from both Sidney and Keckermann’s. Gentili maintains that moral and political philosophy are like the soul of history, without which historical knowledge is bare and empty; but rather than thinking with Keckermann that the historian must be a good logician, Gentili holds up as a philosophical model for imitation the Machiavelli of the Discourses, who ‘in reading history, philosophizes’.68 Philosophy without history remains in darkness, but history without philosophy lacks direction. If the historian wishes to proceed according to one of the many examples that he has observed, Gentili says: ‘tell me, which should he follow? He cannot put forward an example for which there would not be a contrary example.’69 ‘Therefore, it is philosophy that will have to judge examples’, Gentili concludes, commending ‘philosophy joined with history’.70 Let us at last consider Francis Bacon on the utility of reading about wickedness, and on the relation between examples and general lessons, commending Machiavelli in both cases. In his 1605 The Advancement of Learning, Bacon maintained that the exposure to wickedness as such is or can be necessary and effective: For, as the fable goeth of the Basilisk, that if he sees you first you die for it: but if you see him first, he dieth. So is it with deceits and evill arts: which if they be first espied they leese their life, but if they prevent [i.e., come first] they indanger. So that we are much beholden to Macciavell & others that write what men doe and not what they ought to do. For it is not possible to ioyn serpentine wisedom with the Columbine Innocency, except men know exactly all the conditions of the Serpent, his basenesse and going upon his bellye, his volubility, and lubricity, his envy and stinge, and the rest, that is al fourmes and Natures of evill. For without this vertue lyeth open and unfenced.71 67

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Alberico Gentili, De legationibus, ‘101’ [109] (sig. O3r); cf. Bodin’s commendation of Thucydides, Tacitus, Guicciardini, Machiavelli and a few others for bringing to light what is disgraceful, especially perfidious but hidden strategems, Methodus, 170. The Gentili passage is quoted on 351 of Bartholomäus Keckermann, Disputationes practicae, nempe ethicae, oeconomicae, politicae (Hanau, 1608). More accurately, it is quoted by the student Peter Bergmann in a lively response to a question from Keckermann; Bergmann goes on to complain that Machiavelli ‘contradicts himself often, not only in different books, as in the Discourses on the Republic and The Prince, but also in the same book, and even within the same chapter in the same book’. Gentili, De legationibus, ‘86’ [110] (sig. O3v). Ibid., ‘Si enim in re aliqua peragenda is velit cum suis, quae multa observaverit, exemplis progredi, cedò quae sequetur? Non proferet exemplum, cui exemplum contrarium desit.’ Ibid., ‘Philosophia ergo est, quae de exemplis iudicabit’; ‘Philosophiae iunctam historiam cum encomio illo admitto.’ Bacon, The Advancement of Learning (1605), ed. Michael Kiernan, (Oxford, 2000), The Oxford Francis Bacon (OFB) vol. 4, 144–5 (‘leese’ = lose). Cf. Bacon’s preference in moral matters for the observations of Tacitus over the philosophies of Plato and Aristotle, Temporis partus masculus … (c. 1603), in The Works of Francis Bacon, ed. James Spedding, Robert Leslie Ellis and Douglas Denon Heath, (London, 1857–1859) (hereafter SEH), vol. III (1857) (in the Cambridge Library Collection re-print

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Bacon commends Machiavelli’s form of writing, ‘namely discourse upon Histories or Examples’, as ‘fittest for this variable argumente of Negotiation and occasions’, as it has ‘the best grounde for discourse of Governemente’, the ‘historye of Tymes’.72 In doing so, he disagrees with Keckermann about the primacy of precepts over examples in civil knowledge, and with Sidney about the propriety of framing one’s example to one’s reasoning rather than vice versa: For knoweledge drawne freshly and in our view out of particulers, knoweth the waie best to particulers againe. And it hath much greater life for practise: when the discourse attendeth upon the Example, then when the example attenddeth upon the discourse. For this is no pointe of order as it seemeth at firste but of substance. For when the Example is the grounde being set downe in an history at large, it is set down with al circumstances: which maye sometimes controul the discourse thereupon made, and some times supply it; as a verie patterne for action; wheras the Examples alledged for the discourses sake, are cited succinctly, and without particularity, and carry a servile aspecte towards the discourse, which they are broughte in to make good.73

In insisting on knowing ‘exactly all the conditions of the Serpent’, and ‘al fourmes and Natures of evill’, Bacon contests Sidney’s demotion of history and philosophy beneath poetry.74 For Bacon, imagination threatens to confound

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vol. 3), 538. Tacitus was nonetheless not for the young: see note 108, in this chapter. Bacon’s basilisk bears comparison with Greville’s roughly contemporary cockatrice: ‘Treason is like a Cocatrices eies / Firste sees then kills: but firste seene dies’ (as quoted from Mustapha IV.iv., 116–17 by Stephen Powle in 1606, but probably dating before 1601: G. A. Wilkes, ‘The Sequence of the Writings of Fulke Greville, Lord Brooke’, Studies in Philology, 56:3 (1959), 489–503, at 491–3). Bacon, The Advancement of Learning, OFB, vol. 4, 162, 163. Compare the Squire’s critical address to the Secretary in ‘Essex’s Device’ (1595): ‘you, untrue Politique … that presume to binde occasion, & to over-worke fortune’, Early Writings 1584–1596, OFB, vol. 1, 719). Bacon, The Advancement of Learning, OFB, vol. 4, pp. 162–3. In requiring discourse that fits the example rather than vice versa, Bacon also differentiates himself from an English tradition. Here is Roger Ascham proposing a wholly innovative work on the virtues of imitation: ‘it came into my head that a very profitable book might be made de Imitatione, after another sort than ever yet was attempted of that matter, containing a certain few fit precepts, unto the which should be gathered and applied plenty of examples, out of the choicest authors of both the tongues’, The Scholemaster, in The Whole Works of Roger Ascham, vol. 3, p. 226, emphasis added. Of the subjects of the studia humanitatis (grammar, poetry, history, rhetoric, and moral philosophy), Bacon prizes history: ‘I think Story of moste, and I had almost sayd of onlye use. For Poetes, I can commend none, being resolved to be ever a stranger to them’, ‘Letter of advice to Fulke Greville’ (c. 1589?), in Francis Bacon, Early Writings, 1584–1596, ed. Alan Stewart with Harriet Knight, (Oxford, 2012), OFB, vol. 1, pp 207–11, at 210. This letter was written on behalf of or perhaps with Essex. Bacon relishes Henry Savile on the subject: ‘Mr. Savill was asked by my Lo. of Essex, his opinion touching Poets; who answered my Lo. He thought them the best writers, next to those that write prose’, Bacon, Apophthegmes (1625), in The Historie of the Raigne of King Henry the Seventh and other works of the 1620s, ed. Michael Kiernan, (Oxford, 2012), OFB, vol. 8, p. 224. Note that it is ‘Mr Savell’ whom Sidney himself recommends to help his brother in making the most of his study of history, commending Tacitus in the next sentence for excelling in particular ‘in the pithy opening the venome of Wickednes’ (Philip Sidney to Robert Sidney, 18 October 1580, The Correspondence of Sir Philip Sidney, vol. 2, ed. Roger Kuin, (Oxford, 2012), 1008).

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memory and dissociate us from historical truth. We require both particulars and axioms, but not by a poetic combination of generals and particulars, as Sidney recommended; rather than ascending in flights of fancy – ‘that high flying liberty of conceit proper to the poet’ – we must be grounded in the facts.75 We need, he writes in the Novum organum (1620), ‘non plumae … sed plumbum … et pondera’: we should not give the intellect wings, but leaden weights to keep our thoughts from jumping and flying up. If we do this, Bacon says, ‘then indeed we may hope for better things from the sciences’.76 ‘Let no one dread the multitude of particulars’, he exhorts his readers, ‘but rather let this very thing give him hope’, especially if they abandon merely speculative philosophy and idle poetics: ‘the route of fabrication has no outcome but endless perplexity. For men have so far spent little time on experience and have barely touched upon it, but they have wasted countless hours on fanciful meditations and the fictions of wit.’77 And it is history that collects experience, and thus lays the foundations for the building up of true philosophy.78 Although we may understand as optimistic the Baconian project of collecting experience and building up a systematic edifice of knowledge therefrom, the whole still rests on a kind of Guicciardinian dubiety. We must pay heed to ‘the subtlety of nature, the depths of truth, the obscurity of things, the complexity of causes, and the weakness of human understanding’.79 Indeed, the reason that the ancients failed was that ‘they did nothing other than to take a few examples and particulars  … before rushing up to the most general conclusions or principles

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Quotation from Sidney, Defence of Poetry, 77. Bacon would have us eschew ‘high and vaporous imaginations’ in favour of ‘a laborious and sober enquirie of truth’, Advancement of Learning, OFB, vol. 4, p. 89. Novum organum (1620), I.104, The Instauratio magna Part II: Novum organum and Associated Texts, ed. Graham Rees and Maria Wakely, (Oxford, 2004), OFB, vol. 11, pp. 162–3. Cf. Bacon’s recommendation ‘to dance with heavy shoes’ in his ‘A Letter and Discourse to Sir Henry Savill Touching Helps for the Intellectual Powers’ (c. 1602), in SEH, vol. VII (1859) (Cambridge re-print vol. 7), 95–103, at 102. One reason that we need complete history rather than popularized or epitomized history is that ‘time seemeth to be of the nature of a River, or streame, which carryeth downe to us that which is light and blowne up; and sinketh and drowneth that which is weightie and solide’, Advancement of Learning, OFB, vol. 4, p. 29. Novum organum I.112, OFB, vol. 11, pp. 170–1. Novum organum, ‘Plan of the Work’, OFB, vol. 11, pp. 36–7. See also De augmentis scientiarum (1623) Book II, Chapter 1: ‘For I consider history and experience to be the same thing’, in SEH, vol. IV (1858) (Cambridge re-print vol. 4), 293. As becomes clear as the Novum organum unfolds, experience is then to be organized and specified via relata and differentia. Only then can reasoning from those particulars lead to reliably true universals. Bacon, Instauratio magna (1620), ‘Preface’, in OFB, vol. 11, pp. 14–15. Cf. Guicciardini in Storia d’Italia, 1.8: ‘come sono piene di oscure tenebre le cose de’ mortali’. In De sapientia veterum (1609), Fable 26, ‘Prometheus, or the state of man’, Bacon commends the outlook ‘that all things are hidden away from us; that we know nothing; that we discern nothing; that truth is drowned in deep wells; that the true and the false are strangely joined and twisted together …’ SEH, vol. VI (1858) (Cambridge re-print vol. 6), 745–53, at 749 (Latin at 672).

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of the sciences’; ‘this flight to the most general principles wrecked everything’.80 This is especially true of matters politic, for ‘CIVILE KNOWLEDGE is conversant about a subiect which of all others is most immersed in matter, and hardliest reduced to Axiome’.81 Later, writing of ‘Civil History, properly so called’, in the De augmentis scientiarum of 1623, Bacon says that its ‘dignity and authority are pre-eminent among human writings’, but emphasizes its difficulty along with its dignity.82 In The Advancement of Learning, Bacon had insisted that learning should enable rather than inhibit ‘matter of governement and policie’, but recognized the objection of ‘Politiques’ that it makes people ‘too peremptorie or positive by stricktnesse of rules and axiomes’ or ‘too incompatible and differing from the times, by reason of the dissimilitude of examples’.83 Bacon is uncompromising in reply, insisting that one cannot ‘search too farre, or bee too well studied’ and should ‘endeavour an endlesse progresse or proficiencie’, and even maintaining that pedants have excelled in government.84 Proper learning ‘teacheth them what thinges are in their nature demonstrative, & what are coniecturall; and aswell the use of distinctions, and exceptions, as the latitude of principles and rules’; far from ‘mislead[ing] by disproportion, or dissimilitude of Examples’, learned study ‘teacheth men the force of Circumstances, the errours of comparisons, and all the cautions of application’.85 While rarely forswearing altogether the idea that history provided a storehouse of examples of virtuous behaviour, Bacon and others increasingly looked to history to measure accomplishment, or Machiavellian virtù in the face of fortuna, rather than to inculcate moral goodness. Historians had ever been drawn to striking successes and failures, of course, but these had typically been harnessed to the weary workhorse of duty. While Sidney had objected that the historical outcomes could show vice succeed or virtue fail, historians could now turn around and say that success and failure are what historians study. And if virtue is understood as what it takes to succeed, then in that sense history does best ‘bring forth virtuous action’, to 80

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Bacon, Novum organum, 1.125, OFB, vol. 11, pp. 188–9. Bacon’s insistence on sketching the preliminary structures for the compilation and analysis of the vast profusion of worldly particulars seems to have left Lord Herbert of Cherbury impatient for conclusions from this collection; he wrote at the very end of his copy of the 1620 Novum organum: Multa profers, nihill concludis. Bacon would presumably have been happier with this than with concluding much despite proffering little. (I am grateful to Dunstan Roberts for showing me Herbert’s apostrophe.) Bacon, Advancement of Learning, OFB, vol. 4, p. 156. Anna-Maria Hartmann observes that the authors Bacon quotes to identify universal axioms of prima philosophia are all ancient except for Machiavelli: English Mythography in its European Context, 1500–1650 (Oxford, 2018), 140–1. Bacon, De augmentis scientiarum (1623), Book II, Chapter 5 ‘On the Dignity and Difficulty of Civil History,’ in SEH, vol. IV (Cambridge vol. 4), 302. Bacon is also concerned with other kinds of histories, including natural histories, which have some distinct characteristics that I do not here address. Bacon, Advancement of Learning, OFB, vol. 4, p. 9. Bacon, Advancement of Learning, OFB, vol. 4, pp. 9, 11. Bacon, Advancement of Learning, OFB, vol. 4, p. 12. Cf. Blundeville, The true order and methode, sig. H1r.

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use Sidney’s criterion for determining which pursuit is the ruling one; for history unfolds the consequences of particular counsels and actions. In the De augmentis, Bacon thus insists that ‘above all things (for this is the ornament and life of Civil History), I wish events to be coupled with their causes’.86 The philosophers’ theories could be faulty, the poets could be encouraging us toward our doom by misrepresenting the general or inventing the particular, but acute historical accounts provide the stars by which we may reliably navigate. What Bacon calls a perfect history should include not only events, but also the counsels that precede them and the underlying motivations and personalities: ‘the characters of persons, the fluctuations of counsels, the courses and currents of actions, the bottoms of pretences, and the secrets of governments’.87 These are not the counsels of the historian, nor the precepts of the philosophers discussed before; rather, they are part and parcel of the full and truthful account of what happened, including the whys and wherefores, the unseens and the unforeseens. ‘Apophthegmes’, or historical sayings, belong with the history if they contribute to the narrative, and may be worth recording separately if not. But writers of civil history should not be ‘inculcating their favourite political doctrines’ in the history itself.88 Bacon commends Machiavelli’s Discourses on Livy for being grounded in history, but he is similarly wary of this popular Machiavellian approach when it is misunderstood as or interlarded with history. Machiavelli powerfully combined selected historical examples and the precepts he drew from them in the same work, and other such conjunctions followed.89 In The Advancement of Learning, Bacon writes of such works: I cannot likewise bee ignorant of a forme of Writing, which some grave and wise men have used, containing a scattered History of those actions, which they have thought worthy of memorie, with politique discourse and observation thereupon; not incorporate into the History, but seperately, and as the more principall in their intention: Which kind of RUMINATED HISTORY, I thinke more fit to place amongst Bookes of policie … then amongst Bookes of History: for it is the true office of History to represent the events themselves, together with the counsels, and 86 87 88 89

Bacon, De augmentis scientiarum, Book II, Chapter 4, SEH, vol. IV (Cambridge vol. 4), 300–1. ‘Events’ here is likely to mean ‘outcomes’ (OED ‘event’, n. 1). Bacon, De augmentis scientiarum, Book II, Chapter 5, in SEH, vol. IV (Cambridge vol. 4), 302. Bacon, De augmentis scientiarum, Book II, Chapter 5, SEH, vol. IV (Cambridge vol. 4), 302. Cf. Vincenzo Dini, Discorsi sopra il primo libro de la terza deca di Tito Livio (Rome, 1560); Scipione Ammirato, Discorsi sopra Cornelio Tacito (Florence, 1594); Antonio Ciccarelli, Discorsi sopra Tito Livio (Rome, 1598); Filippo Cavriana, Discorsi sopra i primi cinque libri di Cornelio Tacito (Florence, 1597); Aldo Manuzio, Venticinque discorsi politici sopra Livio (Rome, 1601); Jan Gruter, Varii discursus; sive prolixiores commentarii ad aliquot insigniora loca Taciti ([Heidelberg?], 1604); Laurent Melliet, Discours politiques et militaires, sur Corneille Tacite (Lyon, 1618); Virgilio Malvezzi, Discorsi sopra Cornelio Tacito (Venice, 1622). Collections of maxims or sententiae from the ancient historians, especially Tacitus, were also popular in these decades.

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to leave the observations, and conclusions thereupon, to the liberty and facultie of every mans iudgement.90

In the De augmentis, Bacon explains that this kind of ‘Ruminated History’ is not a kind of history at all, because the episodes are disparate and selected according to the pleasure of the author, and again because of the intermixture of the author’s own political precepts. ‘But for a man who is professedly writing a Perfect History to be everywhere introducing political reflexions, and thereby interrupting the narrative, is unseasonable and wearisome. For though every wise history is pregnant (as it were) with political precepts and warnings, yet the writer himself should not play the midwife.’91 When he comes to write his own politic history of Henry VII, Bacon writes: ‘This King (to speake of him in termes equall to his deserving) was one of the best sorte of Wonders; a wonder for Wise men. He had partes (both in his vertues; and his fortune) not so fitt for a Common-Place, as for observation.’92 Although Bacon and others in his circle did recommend and practise common-placing, or the extraction from their reading of maxims and examples under common headings, Bacon here claims for his own work of history a higher status, that of a perfected history that must be read through in its detail in order to observe and thus to vicariously experience and learn.93 90

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Bacon, The Aduancement of Learning, OFB, vol. 4, p. 70. It was common to refer to Machiavelli not by name but as a discourser or the author of discourses: for example, Giorgio Pagliari dal Bosco, Osservationi sopra i primi cinque libri de gli Annali di Cornelio Tacito (Milan, 1612 [1611]): ‘l’Auttore de’ discorsi’, 315, cf. 128, ‘un discorsivo’, 3, cf. 37, 136, 267. Bacon, De augmentis scientiarum, Book II, Chapter 10, SEH, vol. IV (Cambridge vol. 4), 310–11. A similar criticism was sometimes made of Tacitus himself, for example by Famiano Strada, who complains that because Tacitus so frequently interrupts the narrative with observations and precepts (animadversionibus praeceptísque), he is closer to a teacher (praeceptor) of politics than a writer of history, in Prolusiones academicae (Rome, 1617), 291; Edmund Bolton says that ‘the iudgements also, with which Cornelius Tacitus … aboundeth’ are not according to ‘the law of historie’, but according to the office of poetry and the office ‘of censure and magistracie’, 15–16 of An Historical Parallel, printed with some copies of Nero Caesar, or Monarchie Depraved. An Historicall Worke (London, 1624). Jean Bodin wrote, in Methodus, 160, 164, that he was vexed by a great doubt (magna dubitatio me angit): whether historians should praise, condemn and give sentence (sententiam ferre), or leave judgement wholly up to the reader (iudicium integrum relinquere). He says that he will provide the positions of both sides and leave the judgement up to the reader (iudicium relinquam). This echo suggests that he does take a side, providing his judgement in favour of the latter historians: although many think that the utility of history requires praise of the good and condemnation of the bad, this can be done better and more truly by the philosophers. Having recounted wicked deeds, the historian does not then need to pronounce them wicked; like Thucydides, Guicciardini, and others, the historian should give judgement rarely, indirectly, and prudently, rather than breaking the thread of the narrative to play the rhetor or philosopher, pp. 160, 162, 164. Bacon, The historie of the raigne of King Henry the seventh (1622), OFB, vol. 8, p. 162. Despite all of this, Bacon concludes his Henry the Seventh with his own sometimes sententious assessment of Henry. Beyond inconsistency, one possibility is that Bacon changed his mind about mixing the historian’s own judgements into the history; but the De augmentis, published the following year, seems to me broadly consistent with his earlier strictures on the office of the historian.

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F. J. Levy argues in opening his chapter on ‘Politic History’ in his classic Tudor Historical Thought that its ‘usual characteristics’ included ‘a laconic and epigrammatic style’ and ‘a radical condensation of subject matter’; but we see that Bacon himself warned against both the condensation of subject matter and the offering of the historian’s own epigrammatic judgements within the history. How Gabriel Harvey read his history is what we might think of as the vulgar version of politic history, especially commending Livy for his ‘splendid aphorisms’.94 Consider Harvey’s annotation of the introductory letter in his copy of the Strategems of Frontinus: ‘Aphorisms and examples will speedily make you great and admirable. Of longer discourses and histories there is no end. They tire the body and confuse the intellect and the memory.’95 Not everyone shared this impatient approach to politic history, and it is against such defeatism and reductionism that Bacon writes in a letter to Fulke Greville.96 As usual he particularly recommends Tacitus, Livy, and Thucydides; he also here recommends common-placing, but as a matter of organizing the particulars rather than as a replacement for the reading of perfect history in all of its detail. Yt may be obiected that knowledge is so infinite, and the writers of everye part of it so tedious, as it is reason to allowe a man all helpes to goe the shortest and neerest way. But they that onlye studie abridgementes, like men that would visite all places, pass thorough everye place in such post, as they have no tyme to observe as they goe, or make profitt of their travaill.

In epitomes: the positions are sett down without their proofes, and in matter of Storye the thinges done, without the Counsailles and circumstances, which indeede are of a thousand tymes more use then the examples them selves. Such abridgementes may make us knowe the places where greate battelles have been fought, and the names

94 95 96

Another possibility is that Bacon, like other historians before and since, did not trust his reader to draw the proper conclusions, and thought that to make them explicit was more important than to remain within the boundaries of historical office. Finally, it may be that Bacon regarded the narration of the reign itself as the history, and his observations thereupon as a kind of short discourse distinct from the history (or simply that his purposes in writing the work were not exclusively historical). If he retains his view about narrative history, ‘the historie of the raigne of King Henry the seventh’ begins with the first sentence of the work (the succession of Henry to the throne) (OFB, vol. 8, p. 4; cf. the first sentence of Bacon’s Henry VIII), and ends with the sentence relating his death and the end of the reign (OFB, vol. 8, p. 162). From the following sentence (‘This King …’) to the end, on this view, is Bacon’s discourse on his history. The switch to default italics (from the middle of 167 to the end) may suggest that the whole of these observations was meant to be set off; and the existence of a Latin version of only this last part (‘Rex iste …’), for which Spedding attributes responsibility to Bacon, may suggest that Bacon thought of it as a different kind of study or as having a distinctive audience or purpose. Gabriel Harvey’s note in his copy of Livy, as quoted by Lisa Jardine and Anthony Grafton, ‘“Studied for action”: how Gabriel Harvey read his Livy’, Past and Present 129 (1990), 30–78, at 65. Harvey’s note in his copy of Frontinus, as quoted in Jardine and Grafton, ‘Studied for action’, 60. ‘Letter of advice to Fulke Greville’ (c. 1589?), OFB, vol. 1, pp. 207–11.

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of the conquerors and conquered, and will minister argumentes of discourse, but cannot breede soundenes of iudgement, which is the trewe use of all learninge.97

For Bacon, the true use of all learning is to develop sound judgement, a conception closer to Guicciardini’s desired discrezione and ‘giudicio’ than to the aim of becoming good in Sidney’s sense.98 Sidney objects not only that the historian presents both good and evil, but that his reliance on the reader’s discernment to tell the difference shows that history presupposes discretion rather than teaching it: ‘And then how will you discern what to follow but by your own discretion, which you had without reading Quintus Curtius?’99 Bacon’s advice about education and the order of reading histories, like Sidney’s own, however, makes clear that discretion is developed over time, and via gradually more subtle and complex histories, which both require and develop discretion.100 To guide action, we often need more granular exactitude than general rules or precepts afford: ‘wee see remote and superficiall Generalities, doe but offer Knowledge, to scorne of practicall men: and are no more ayding to practise, than an Ortelius universall Mappe, is to direct the way betweene London 97

Bacon, ‘Advice to Fulke Greville’, OFB, vol. 1, p. 208 (here ‘post’ = haste and ‘storye’ = history); reference to the use of epitomes for ‘argumentes of discourse’ may be to the Machiavellian mode of discourses on history. On the previous page of the ‘Advice’, 207, he treats ‘Lipsius Politicks, and Machiavels Art of War’ as epitomes of their subjects, which ‘will no more make a Man a good … Politician, nor Soldier, than the seeing of the Names of London, Bristol, York, Lincoln and some few other places of note in a Mercators general Map will make a Stranger understand the Cosmography of England’. In The Advancement of Learning, Bacon calls excerpted histories and epitomes ‘the Corruptions and Mothes of Historie’, and says of ‘the Canker of Epitomes’ that ‘the use of them deserveth to be banisht … as those that have fretted and corroded the sound bodies of many excellent Histories, and wrought them into base and unprofitable dregges.’ OFB, vol. 4, pp. 66, 126. 98 In a letter to the earl of Rutland, of contested authorship, he is exhorted ‘[a]bove all other books be conversant in the Histories, for they will best instructe you in matters morrall, politike, and military, by which and in which you must ripen and settle your iudgment’, ‘First letter of advice to the earl of Rutland’ (1595?), OFB, vol. 1, pp. 645–6. Paul Hammer, ascribing responsibility for this epistle to Essex, takes as corroboration that this is ‘[t]he same point’ that Essex makes when he writes elsewhere ‘ffor rules and patternes of pollecy are aswell learned out of olde Greeke and Romayne storyes, as out of states which are at this day’ (Paul E. J. Hammer, The Polarisation of Elizabethan Politics: The Political Career of Robert Devereux, 2nd Earl of Essex, 1585–1597 (Cambridge, 1999), 306–7 and 307 n. 197). But these are quite different points about the utility of history: Essex looks to find the same rules and patterns of policy in histories of any period, while (the author I take to be) Bacon encourages becoming conversant in the histories to develop judgement. In the same letter to Rutland, Bacon writes that ‘when yow see infinite varietie of behaviours and manours of men, yow maye choose and imitate the best’ (‘First letter’, OFB, vol. 1, p. 642): here, the goodness of example is not about a fixed exemplary character; while based on a kind of imitation of examples, their utility is understood to come from multiplying the possibilities from which one may choose, which still requires distinction and judgement. Although the letter does insist that from observation we learn the ‘likenes between … time past and time present’, he admits that ‘Exempla illustrant non probant’, and qualifies the use of examples as illustrating what is probable, and that only ‘when circumstaunces agree and proportion is kept’ (‘First letter’, OFB, vol. 1, pp. 647–8). 99 Sidney, Defence of Poetry, 88. 100 See note 108 in this chapter, and the letter from Philip Sidney to Robert Sidney, 18 October 1580.

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and Yorke’.101 Like a more detailed map, more precise rules can better aid practice; and Bacon insists that the results of practice must in turn be scrutinized to calibrate the defeasible rules. But no set of rules will yet replace the need to develop a capacity for sound practical judgement, for responding to present and future contingencies in circumstances that may be unprecedented; to do so also requires a thorough acquaintance with full accounts of counsels, circumstances, actions and outcomes.102 The premise of sameness or similarity in exemplary history depended on a conception of a uniform past with a cyclical or rectlinear pattern; those who instead came to see the past as endlessly choppy and churning and capable of changes in kind were doubtful of recurrence and more attuned to time. Each situation at each moment, when fully described, is likely to be importantly different from any other, and temporality is in every interstice. We need more history, according to Bacon – more nuanced, more detailed, more acute history – so that we are better prepared to judge matters day by day.103 Bacon agrees with Sidney that if we want morally uplifting accounts, we should turn to the poets.104 (This does not mean that history is normatively or motivationally inert, for it refers to ends that human beings already have.105) Civil history, by contrast, has two basic and related functions: it provides the stuff which, arranged methodically and in detail, can lead to suitably organized and properly delimited 101 102

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Bacon, Advancement of Learning, OFB, vol. 4, p. 126. In his early fragment ‘Of Magnanimitie or Heroical Vertue’ (1591–1592), Bacon maintains: ‘Great is the varietie of the preceptes; neither are they streight applied to the particuler or occurring accions’, unless one has already undertaken the great labour to develop via habituation the requisite virtues of intellect and character, in Early Writings 1584–1596, OFB, vol. 1, pp. 303–4. From a recognition of fundamental mutability over time, the historian Henry Spelman drew the converse conclusion: not that historical precedent thus provides doubtful guidance for present cases, but that present circumstances thus lead to doubtful guidance for understanding the past (and then such error is used as if it were evidence for rules for the present and future). In a work probably dating from the late 1620s, he wrote: ‘succeeding Ages viewing what is past by the present, conceive the former to have been like to that they live in, and framing thereupon erroneous propositions, do likewise make thereon erroneous inferences and Conclusions’, Reliquiae Spelmannianae, ed. Edmund Gibson, (Oxford, 1698), 57. Bacon, Advancement of Learning, OFB, vol. 4, pp. 73–4: ‘because true Historie propoundeth the successes and issues of actions, not so agreable to the merits of Vertue and Vice, therefore Poesie faines them more iust in Retribution, and more according to Revealed Providence. … So as it appeareth that Poesie serveth and conferreth to Magnanimitie, Moralitie, and to Delectation … it doth raise and erect the Minde, by submitting the shewes of things to the desires of the Mind; whereas reason doth buckle and bowe the Mind unto the Nature of things.’ Bacon may thus be understood (see also notes 55 and 73) to provide a reply to Sidney. For we might regard this as stopping Sidney’s deployment of Hume’s guillotine (or: Sidney’s guillotine) with a kind of Kantian assertoric hypothetical imperative (more obviously already conceptualized at this time, implicit in Machiavelli and the others above), an implicit appeal to the reader’s actual ends. If a set of accurate historical particulars properly collected and distinguished can support a general claim, those covered by it can regard the distinction between a general conclusion and a normative precept as moot. A conceptual difference remains between historical truth and prescription, but the practical difference may be negligible.

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general propositions; and the details in their contexts can build the capacity of subtle judgement through refinement, qualification and distinction.106 History is the matrix of truths that help us become better readers of causes, dispositions, circumstances and likelihoods, and thus better equipped for civil decisions and actions. This brings us to Bacon’s sometime secretary or amanuensis, known to us as the philosopher Thomas Hobbes. Although we do not know exactly when Hobbes undertakes his translation of Thucydides, it was certainly some years before it was published at the end of 1628. It seems clear that he was already working on it in the early to mid-1620s, so that he was very probably engaged in the edition during the time when he was working with Bacon or shortly after he left his employ. As we saw, Bacon during this time was writing his history of Henry VII and augmenting his reflections about the nature of history; he continued throughout to write about politics, and in 1624 he frog-marched Thucydides into arguing for a preventive war with Spain.107 It is during this period that Hobbes worked to give Thucydides his voice. In the opening of his edition of Thucydides, Hobbes maintains that ‘that kind of Learning, which best deserveth the paines and houres of Great Persons,’ is ‘History, and Civill knowledge … directed … to the Government of [one’s] Life, and the Publike good’; and he commends Thucydides for educating beyond a more childish education in ‘both Examples and Precepts of Heroique Vertue’, for ‘when you come to the yeeres, to frame your life by your owne Observation’.108 Instruction for adults includes histories that move beyond precepts and examples to provide readers with the opportunity to observe for themselves how things were. Tales of heroic virtue, whether in poetry or in moralizing history, are of limited use in facing the world as it is; Thucydides, by contrast, ‘tooke an evil Argument in hand. … So that the hearers 106

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Cf. ‘Of reading History’ in Horae subsecivae (London, 1620), essays in a Baconian vein by Hobbes’ pupil William Cavendish: ‘The benefit that the Understanding receiveth thence, ariseth two ways. First, it becomes enformed … with matter of fact, by the direct Narration of things past, in manner as they fell out’; ‘the other more principall use of it’ is ‘to enforme and enable the iudgement, and furnish a man with discretion, and wisedome’ (200, 207). Francis Bacon, Considerations Touching a Warre With Spaine, composed in 1624 and first printed in Certaine Miscellany Works of the Right Honourable, Francis Lo. Verulam, Viscount S. Alban, ed. William Rawley (London, 1629). For an argument that Hobbes’ own edition of Thucydides is aimed at a directly contrary purpose (even if indirectly expressed), that is, against the war with Spain promoted by Bacon, see Kinch Hoekstra, ‘Hobbes’s Thucydides’, in A. P. Martinich and Kinch Hoekstra, eds., The Oxford Handbook of Hobbes (Oxford, 2016), 547–74. Eight Bookes of the Peloponnesian Warre (London, 1629), sig. A1v, A2r. Bacon had written that ‘the best bookes are not ever fittest,’ given that younger readers should turn to them when more mature in study and experience. So in writing to the earl of Rutland (then perhaps eighteen or nineteen years old), he had recommended Herodian (‘whoe is verye easie and wilbe better tasted now then hereafter’), Caesar, and Sallust (‘not to deepe for a verye younge man’), while also marking out those ‘best bookes’ to which he should for now only aspire: ‘But hereafter as the cheife of all stories, I will exhorte yow to Tacitus and Lyvye and Thucidides of the Greekes’, ‘Second letter of advice to the earl of Rutland’ (1595?), OFB, vol. 1, pp. 658, 660. Cf. ‘Advice to Fulke Greville,’ OFB, vol. 1, 210.

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will abhorre it’.109 Like both Machiavelli and Guicciardini, Hobbes favours negative examples above all to learn from prudential failures. Thucydides is especially profitable for readers, Hobbes argues, because ‘mens miseries doe better instruct, then their good successe’.110 Yet the politic education Hobbes promises is not in the Machiavellian mode that had become popular with politic historians.111 ‘For the principall and proper worke of History, being to instruct, and enable men, by the knowledge of Actions past, to beare themselves prudently in the present, and providently towards the Future, there is not extant any other … that doth more fully, and naturally performe it, then this of my Author.’112 Following an outlook to be found in Guicciardini and Bacon, Hobbes here suggests his answer to the objection that knowledge of historical particulars cannot guide us in the present or future: knowledge of the past does not provide knowledge of the present or future, whether via reasoning from like to like or to general rules that are equally applicable in the present; it rather forms and enables us. Knowledge of past particulars informs how we conduct or carry ourselves, helping us to develop a prudential bearing. If history proper can provide this, what do the teachers of prudence provide who extract lessons and discourses from 109 110

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Eight Bookes of the Peloponnesian Warre, sig. a3v. Ibid. Hobbes is here arguing against Dionysius of Halicarnassus’ criticisms of Thucydides by comparison with Herodotus, and may be implicitly criticizing Bacon’s Henry the Seventh, especially when Hobbes (sig. a3v) rejects relying on conjecture of internal states more than external evidence; writing about times of ‘which it was impossible for him to know the truth’ vs information of which ‘he was able certainely to informe himselfe’; and privileging the honour of one’s country, which Hobbes says is a historiographical vice (whereas Bacon says that he undertook ‘my Worke, of the Raigne, of King HENRY the Seventh’ in order ‘to doe it [viz., ‘my Countrey’] Honour’: An Advertisement Touching an Holy Warre (1623), OFB, vol. 8, p. 186). Note that the only works by Machiavelli listed in the c. 1628 Hardwick library catalogue in Hobbes’ hand (Chatsworth (Hardwick) MS E/1/A) are the English translation of the Istorie fiorentine and a copy of the Discourses (‘Macchiavel discours on Livy’: this is in the romance language section of the catalogue, and may refer to Les discours de l’estat de paix et de guerre, de messire Nicolas Macchiavelli, secretaire & citoyen Florentin, Sur la premiere Decade de Tite Live (Rouen, 1586)). By contrast, the catalogue demonstrates that Hobbes had to hand one of the best collections in Europe of Guicciardini’s works, including one of the quarto Italian editions of the Historia (MS E/1/A p. [129]), the 1566–7 Latin translation (p. 83), and the 1579 English translation (p. 84); plus a version of the work we know as the Ricordi, Francesco Sansovino’s (1583, 1588, 1598 or 1608) edition of the Propositioni overo considerationi in materia di cose di stato. … (p. [129]) and Robert Dallington’s Aphorismes Civill and Militarie: Amplified with Authorities, and exemplified with Historie, out of the first Quarterne of Fr. Guicciardine (likely the London, 1613 ed.) (p. 73). (For Guicciardini’s works in this period, see Valentina Lepri and Maria Elena Severini, Viaggio e metamorfosi di un testo. I Ricordi di Francesco Guicciardini tra XVI e XVII secolo (Geneva, 2011).) Hobbes also had to hand John Hayward’s Henrie IIII, an edition of Samuel Daniel’s Historie of England, and Bacon’s Henry the Seventh and other works by Bacon referred to above (MS E/1/A pp. [86]; 74–5; 61, 63), as well as Ralegh’s Historie, Selden’s Historie of Tithes, Bodin’s Methodus, and Bernaerts’ De utilitate legendae historiae. He also had the eighteen works of ars historica in the threevolume collection Artis historicae penus (Basel, 1579), and works by a number of important modern historians including Camden, Commynes, de Thou, Giovio, Sarpi, Sleidan and Speed. Eight Bookes of the Peloponnesian Warre, sig. A3r.

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selected historical examples? At a minimum, Hobbes follows Bacon on ‘Ruminative History’ by ruling out discourses of this Machiavellian kind as simply not historical. In other historians, ‘there be inserted very wise discourses, both of Manners and Policie. But being discourses inserted, and not of the contexture of the Narration, they indeed commend the knowledge of the Writer, but not the History it selfe, the nature whereof, is meerely narrative.’113 Hobbes continues in a rather riskier vein, going after a central aim of politic history itself, though he does so in a way that allows a proponent or practitioner like Bacon to think the attack is only on bad politic history. In others, there bee subtile coniectures, at the secret aymes, and inward cogitations of such as fall under their Penne; which is also none of the least vertues in a History, where the coniecture is thoroughly grounded, not forced to serve the purpose of the Writer, in adorning his stile, or manifesting his subtilty in coniecturing. But these coniectures cannot often be certaine, unlesse withall so evident, that the narration it selfe may be sufficient to suggest the same also to the Reader.114

These subtle conjectures about inward cogitations and secret aims are at the core of how politic history had been practised; they were the pride of Tacitean historiography, and Bacon explicitly extols them.115 Having appeared to allow such conjectures when done properly, Hobbes effectively dismisses them as useless or misleading, much as some previous politic historians had excluded the insertion of the historian’s maxims or his moral judgements. 113

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Ibid. Hobbes’ exclusion of Machiavellian discourses from history is clear, and his identification of history with narrative may be conventional (for example, Bodin had begun the first chapter of his Methodus by defining history as true narration); but his insistence that his Thucydides is properly historical and therefore merely narrative may also be an attempt to protect himself from readers who would take exception to what they take to be his political purposes: see Hoekstra, ‘Hobbes’s Thucydides’, esp. pp. 557, 569–71. So John Selden, who was right to worry about a hostile reaction from the clergy, writes at the beginning of The Historie of Tithes (1618), sig. a4v–p. I: ‘it is not writen to prove that Tithes are not due by the Law of God; not writen to prove that the Laitie may detaine them, not to prove that Lay hands may still enioy Appropriations; in summe, not at all against the maintenance of the Clergie. Neither is it any thing else but it self, that is, a meer Narration, and the Historie of Tithes.’ Selden sharply distinguishes the ‘meer Narration’ of history (sig. a4v) from his own counsel for ‘the Use of this Historicall truth’: ‘Admonitions, for direction in the Use, of its own nature rather required a severall place, then was fit to have been mixt in the bodie of the Historie’ (p. 449), so he offers them in ‘A Review’, a kind of appendix. Eight Bookes of the Peloponnesian Warre, sig. A3r. Richard Tuck argues that ‘Hobbes in 1620 was an absolutely authentic Tacitist’, and remained one throughout his career, arguing along the way that ‘one of the points of Hobbes’s translation’ of Thucydides was accordingly to support Bacon’s call for war with Spain: Richard Tuck, ‘Hobbes and Tacitus’, in G. A. J. Rogers and Tom Sorell, eds., Hobbes and History (London, 2000), pp. 99–111, at 107–9. Against this understanding of the point of Hobbes’ translation, see Hoekstra, ‘Hobbes’s Thucydides’, esp. pp. 565–9. Because of the enthusiasm for Thucydides by Tacitists like Lipsius and Bacon, the Tacitism of patrons and associates of Hobbes, and Hobbes’ prominent citation of Lipsius, it is tempting to think he offered a translation of Thucydides as an orthodox Tacitist and politic historian. Yet his choice of Thucydides and Lipsius, and his emphasis on themes dear to the Tacitists such as prudence, may instead be evidence of the audience he wished to convince with his edition.

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Hobbes then distinguishes Thucydides both from the Machiavellian discoursers and the Baconian politic conjecturers, while giving him pride of place among all writers politic: ‘But Thucydides is one, who, though he never digresse to reade a Lecture, Morall or Politicall, upon his owne Text, nor enter into mens hearts, further then the actions themselves evidently guide him, is yet accounted the most Politique Historiographer that ever writ.’116 While Hobbes uses his prefatory materials above all to urge his readers to read the whole of Thucydides’ text, not being the historian he is not restricted to narrative, and offers some of his own observations and interpretations of the history in introducing it. Hobbes explains that Thucydides is ‘the most Politique’ because he vividly and accurately allows his readers to add to their experience, and on that basis to draw out lessons for themselves from the narration itself. Digressions for instructions cause, and other such open conveyances of Precepts (which is the Philosophers part) he never useth, as having so cleerely set before mens eyes, the wayes and events, of good and evill counsels, that the Narration it selfe doth secretly instruct the Reader, and more effectually then possibly can be done by Precept.117

The narration itself secretly instructs the reader: note that this pushes still further the Baconian wariness not only of Machiavellian lessons but also of Tacitean precepts. Recall Bacon’s admonition that ‘though every wise history is pregnant … with political precepts and warnings’, yet it is not the historian himself who should deliver them.118 Hobbes follows this line. ‘So that looke how much a man of understanding, might have added to his experience’, Hobbes writes, ‘if he had then lived, a beholder of their proceedings, and familiar with the men, and businesse of the time; so much almost may he profit now, by attentive reading of the same here written. He may from the narrations draw out lessons to himselfe, and of himselfe be able, to trace the drifts and counsailes of the Actors to their seate.’119 The lesson, he says, is that 116

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Eight Bookes of the Peloponnesian Warre, sig. A3v. It may be that Hobbes is here directly contesting a title given to Tacitus. So Fabio Frezza had written that it is Tacitus who is ‘esteemed … the most Politic’ (‘Cornelio Tacito, stimato da ogn’uno trà scrittori Politici, il più Politico’), in his dedicatory epistle to Prince Philip of Spain in Massime, Regole, et Precetti, di Stato, & di Guerra (Venice, 1614), sig. A3v. Cf. also Frezza, Discorsi Politici, et Militari (Naples, 1617), pp. 1–2: ‘G. Cornelio Tacito… quell’Autore, che io stimo esser tra tutti i politici, di qualunque lingua, & di qual si voglia secolo, il più politico’; and Traiano Boccalini, De’ ragguagli di Parnaso, centuria prima (Florence, 1613), sig. A2r, pp. 90, 239–40, 451. Eight Bookes of the Peloponnesian Warre, sig. a3r. Compare [Cavendish], Horae subsecivae, p. 219: ‘For how many rules of life so ever be fetched from History, they are but so many Philosophicall precepts; Philosophy deriving authority from the matter, and examples thereof; as Grammar may doe from the language wherein it is written.’ Bacon, De augmentis scientiarum, Chapter 10, SEH, vol. IV (Cambridge vol. 4), p. 311. Cf. Samuel Daniel, The Collection of the Historie of England, sig. A3v–A4r of the 1617/18 edition. Eight Bookes of the Peloponnesian Warre, sig. A3v. We might think of this as a kind of democratization of judgement, a recognition or recommendation of the authority of the reader, or even an enlightenment approach (one must ‘draw out lessons to himselfe’). However, the source, audience, and nature

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we have to draw out the lessons for ourselves, rather than relying on the conclusions or maxims of another. If we wish to learn from the past like adults, we must study the counsels and causes and their events in all of their obdurate complexity and particularity. This Hobbes is frequently ignored or set aside to focus on Hobbes the philosopher. Even the most learned treatments of the early Hobbes have propounded the by now standard view that confines his esteem for history, experience, prudence and the cultivation of judgement and situational discretion to Hobbes’ humanist phase, the apex of which was his Thucydides, and after which – sometime between 1630 and 1640 – he rejected these things in favour of a deductive science of politics.120 There is no room left to demonstrate what I shall briefly suggest, that this is importantly mistaken, or at least apt to mislead. Hobbes continues to value history, experience, prudence, judgement and discretion, and to believe that they have vital roles to play in political life. Three stipulative points for now, to be developed with evidence and argument another time. First, while he came to regard civil science as his own great contribution, Hobbes did not believe that it provided all political answers. The answers it could provide were essential ones: that people are obligated in nearly all things to their sovereign, that sovereignty is absolute and unitary, that the church has no independent authority, and the like. But we have no reason to think that he rejected the Renaissance arts of governance; and there is no evidence that he believed civil science or political philosophy could determine many of the vast array of political questions, large and small: whether to shift funds from the navy to poor relief or vice versa, to fire the chancellor or demote him, to raise taxes or lower them, whether schooling should be mandatory and if so at what age. Consider salient questions

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of judgement here are complex: Hobbes has in this same paragraph commended Thucydides for the ‘choice of matter’ with which he ‘filleth his Narrations’, and ‘that Iudgement’ with which he ‘ordereth them’, which is what allows his readers to draw out the lessons (sig. A3v); he also says that only the ‘better sort of Readers’ truly judge (sig. A4r), and that it is ‘men of good Iudgement and Education’ who can benefit from reading Thucydides, who intended the work for them (sig. A4v). Not least, Hobbes’ own judgement pervades the work, even to the choice of how to render each word of Greek; and he makes clear in the prefatory materials that he wishes the reader to arrive at certain judgements that Hobbes derives from the work. Nonetheless, Hobbes also approves of Lipsius’ view that Thucydides is so ‘sound in his iudgements’ that he is ‘every where secretly instructing, and directing a mans life and actions’ (sig. b1r, emphasis added), which suggests that the upshot is no simple lesson or two; and he takes judgement as a capacity to digest what one has read and studied, converting it into wisdom (sig. A1v). Signal contributions to the study of this period and its relation to Hobbes’ later thought include Leo Strauss, The Political Philosophy of Hobbes: Its Basis and its Genesis, tr. Elsa M. Sinclair, (Oxford, 1936); Quentin Skinner, Reason and Rhetoric in the Philosophy of Hobbes (Cambridge, 1996); and Timothy Raylor, Philosophy, Rhetoric, and Thomas Hobbes (Oxford, 2018). This picture also inflects the best synthetic treatment of Hobbes on history, Karl Schuhmann’s ‘Hobbes’s concept of history’, in Hobbes and History, Rogers and Sorell, eds., 3–24. Strauss and Skinner have at points freighted (and lamented) this turn in Hobbes’ career as marking the break between the antiquity-educated Renaissance and modernity.

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he believed his Thucydides edition addressed: whether to go to war, and what is the best form of government. How could one determine via deductive science whether England should go to war with Spain in the early 1620s? It may require policies that promote the salus populi, but the essential question remains, of whether that is furthered or undermined by a given war at a given time. And Hobbes was explicit that the answer to the second question could not be demonstrated.121 He thus insists that a counsellor have collected great experience: ‘When for the doing of any thing, there be Infallible rules … all the experience of the world cannot equall his Counsell, that has learnt, or found out the Rule’; but ‘when there is no such Rule, he that hath most experience in that particular kind of businesse, has therein the best Judgement, and is the best Counsellour.’122 Although he focussed on civil science, which he regarded as having lacked a proper foundation, Hobbes believed that the comparatively well-established arts of counsel and government were required alongside it.123 In De cive, which Hobbes credits as the first work of civil science, he thus maintains that he is writing about the right of sovereignty, which is the same in all commonwealths, rather than how it is to be exercised, which is embedded in particular contexts. ‘It is not my plan to descend to that in which Princes may act differently from one another, for this is to be left to the practical politics [politicis practicis] of individual commonwealths’.124 Practical politics, however, can make all the difference, and indeed Hobbes insists that the advantages and disadvantages of a given political regime are attributable not to the sovereign, but to the specific capacities and decisions of ministers and counsellors – who, as we saw, require experience, prudence and judgement.125 121

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De cive, 1647 Praefatio: ‘non demonstratam sed probabiliter positam’, De cive: The Latin Version, ed. Howard Warrender, (Oxford, 1983), 83. Note that Hobbes also makes clear in the preface that this whole work of political philosophy ‘rests on its own principles known by experience’ (experientia) – not, as in the Tuck and Silverthorne edition, ‘reason’, On the Citizen (Cambridge, 1998), 13. Leviathan, 25.12, p. 406 of Noel Malcolm’s edition (Oxford, 2012). In Leviathan, 25.10, p. 404, Hobbes argues that experience is memory of the consequences of like actions formerly observed, and counsel is making that experience known to another, laying out ‘the necessary or probable consequences of the action he propoundeth’; the counseled must examine ‘the truth, or probability of his [the counselor’s] reasons’ (Leviathan, 25.14, p. 410); and ‘he who hath by Experience, or Reason, the greatest and surest prospect of Consequences, Deliberates best’ and can ‘give the best counsell unto others’ (Leviathan, 6.57, p. 94) (emphases added). Hobbes holds (Leviathan, 25.12, p. 406) that ‘[t]he wit required for Counsel … is Judgement’, that the knowledge of the counselor ‘is not attained to, without much experience’, and that it includes contingent and particular knowledge, for example ‘of the Strength, Commodities, [and fortified] Places, both of their own Country, and their Neighbours’, and so on; and ‘every one of the particulars requires the age, and observation of a man in years’. De cive, 13.1 (Warrender Latin ed. 195); I here adapt the translation by Tuck and Silverthorne. ‘Politicis practicis’ could also mean political practices, or could refer to those who practise politics. De cive, 10.16 (Warrender Latin ed. p. 179). See Kinch Hoekstra, ‘Early modern absolutism and constitutionalism,’ Cardozo Law Review, 34:3 (2013), 1,079–98, esp. 1,095–6.

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Hobbes thus continued to value prudence, judgement and discretion.126 Much has been made of Hobbes’ placement of prudence beneath science in Leviathan, which is often characterized as a repudiation of prudence. Hobbes there insists on the utility of prudence, however: ‘by how much one man has more experience of things past, than another; by so much also he is more Prudent, and his expectations the seldomer faile him’; it is thus no wonder that ‘to prudent men, we commit the government of ourselves, more willingly than to others’.127 Of prudence (much experience) and sapience (much science), he says they are ‘both usefull; but the latter infallible’. He contrasts both of these with the disastrous third option, which he likens to trusting ‘false rules’.128 For ‘in any businesse, whereof a man has not infallible Science to proceed; to forsake his own natural judgement, and be guided by generall sentences read in Authors, and subject to many exceptions, is a signe of folly’.129 Science is best where it is applicable, following prudence or judgement is best where it is not, and the real peril comes from adherence to general maxims. This means that history, which collects experience, remains valuable for politics. In a sophisticated recent book, Timothy Raylor has argued that Hobbes insists from 1640 ‘that experience and prudence, and therefore history, cannot be considered productive of true knowledge’, characterizing this as a ‘rejection of history’.130 But Hobbes does not reject history, and he insists that it is a register of knowledge. In the 1640 Elements of Law, Hobbes argues that there are two sorts of knowledge, both of which are ‘but experience’; of the knowledge from experience of ‘the effects of thinges that worke upon us from without’, ‘the Register we keepe in bookes, is called 126

127 128 129 130

I here only and briefly consider prudence, but see also how Hobbes puts together the following intellectual virtues (Leviathan, 8.3, p. 104): ‘there is nothing to observe in the things they think on, but either in what they be like one another, or in what they be unlike. … they that observe their differences, and dissimilitudes; which is called Distinguishing, and Discerning, and Judging between thing and thing; in case, such discerning be not easie, are said to have a good Judgement: and particularly in matter of conversation and businesse; wherein, times, places, and persons are to be discerned, this Vertue is called discretion.’ In The Elements of Law, Naturall and Politique (1.10.4, fol. 41r-v of British Library (BL) Harley MS 4235), Hobbes had argued that it is by the ‘vertue of the minde’ of ‘discerninge … dissimilitude in thinges that otherwise appeare the same’ that ‘men attaine to exact and perfect knowledge’ (emphasis added); this is ‘commonly tearmed by the name of Judgmente for to iudge is nothing else but to distinguish or discerne.’ This in turn is tightly linked to prudence, which is ‘nothing else but Coniecture from Experience, or taking of Signes from Experience warily, that is, that the Experiments from wch one taketh such signes, be all remembered, for else the Cases are not a like, that seeme soe’ (1.4.10, fol. 19v–20r). Leviathan 3.7, p. 42, and 10.10, p. 134. Leviathan 5.21, p. 76. Leviathan, 5.22, p. 77; cf. 5.19, p. 74. Malcolm (p. 77 n. t) glosses ‘sentences’ here as ‘maxims’. Raylor, Philosophy, Rhetoric, and Thomas Hobbes, p. 203 and n. 152, citing Skinner, Reason and Rhetoric. On p. 202, Raylor maintains that in 1640, ‘Hobbes downgrades the long-prized cardinal virtue of prudence to the level of a merely animal capacity’; but there is no evidence that Hobbes believed before 1640 that prudence is not a capacity we share with other animals, so there is no evidence that it is then downgraded (even if we were to accept that having a capacity that is at some level an animal capacity is for Hobbes a mark against it).

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Hystory’.131 As he puts it in the 1651 Leviathan: ‘There are of Knowledge two kinds, whereof one is knowledge of fact, the other knowledge of the consequence of one affirmation to another. The former … is absolute knowledge’; and ‘[t]he register of knowledge of fact is called history’.132 Circa 1643, Hobbes argues that there are four virtuous (honesti, honourable) ends of speech: to demonstrate the truth of some universal statement (philosophy), to narrate or recount (narrare) something (history), to move a hearer’s mind to do something (rhetoric), or to ennoble and celebrate deeds (poetry).133 Of these, only logic (elsewhere, philosophy or science) and history are directed to truth.134 Both eschew ambiguity and falsity in their closely related respective aims: to teach (docere), and to inform or shape the mind (informare).135 The essential difference is that logic treats universals, proceeding necessarily from definitions via demonstration, whereas ‘the end of historical [speech] is to narrate deeds (facta), which are always singular.’136 They are thus categorically distinct and compatible pursuits, together necessary for the dual nature and the distinct temporalities of politics. Hobbes remained a proponent of history, particularly of a Guicciardinian kind. He does not come to reject history in favour of general rules; what he does reject are general rules abstracted from experience, the maxims associated with the Machiavellian politic historians. Hobbes thought of logic as timeless, and certain conceptual relations in political matters as matters of logic; yet many other political matters are time-dependent, and not tractable by logic. There are no infallible answers to such matters of judgement, but a nuanced familiarity with history provides greater traction. The particulars narrated in history are time-bound, properly related to later times only as refracted through discernment about the specifics of circumstance. Hobbes suggests that politic history and political philosophy are distinct but ultimately complementary endeavours. 131 132 133 134

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The Elements of Law, Naturall and Politique (1.6.1), fol. 25r of BL Harley MS 4235. Leviathan, 9.1, 124; cf., for example, Leviathan, 7.3, p. 98, and De homine, 10.4. Thomas Hobbes, Critique du De Mundo de Thomas White, ed. Jean Jacquot and Harold Whitmore Jones, (Paris, 1973), 1.2, fol. 6r. ‘Experience concludeth nothing universally’, Hobbes maintains, accepting Sidney’s argument that ‘though a man hath alwayes seene the day and night to follow one another hitherto, yet can he not from thence conclude they shall doe soe’; yet history is still in principle true, and though prudent conjectures based on the true particulars are only probable and should not be presented as universal maxims, they are useful, for example in understanding the likelihood of an event to be twenty to one (Elements of Law, 1.4.10, fol. 19v). Hobbes, Critique du De Mundo, 1.2, fol. 6r. Hobbes, Critique du De Mundo, 1.2, fol. 6r–v. Historical speech ‘should not be sententious, for a sententia is nothing other than an ethical Theorem, or a universal claim [dictum, speech] about due behaviour [mores, morals]’ (6r). Again, the issue here is not that Hobbes endorses or rejects general rules per se, but that, just as the historian abandons the office of history when he seeks to persuade, so does he when pronouncing general rules.

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6 Hobbes on the Theology and Politics of Time Quentin Skinner

1

Thomas Hobbes’ most considered analysis of the concept of time appears in De corpore, which he published in Latin in 1655 and in an English translation as Elements of Philosophy the first section, concerning Body in 1656.1 The second part of the treatise begins with a thought experiment that Hobbes describes as ‘privation’, in which he asks us to imagine the annihilation of the world.2 A surviving man, even in that condition, would still retain ‘Ideas of the World, and of all such Bodies as he had, before their annihilation, seen with his eies, or perceived by any other Sense’.3 These ideas will amount to nothing more than ‘Phantasms hapning internally to him that imagineth’, but they will nevertheless ‘appear as if they were externall, and not at all depending upon any power of the Mind’.4 Given that these alone will be the things that the man ‘thinkes, imagines, and remembers’, the moral of the thought experiment is said to be that at all times ‘we compute nothing but our own Phantasmes’.5 We must acknowledge that what we consider to be ‘Species of external things’ do not exist separately, but only appear ‘to have a Being without Us’.6 Hobbes next applies these considerations to his analysis of the concepts of space and time. ‘As a Body leaves a Phantasme of its Magnitude in the mind, so also a Moved Body leaves a Phantasme of its Motion, namely an Idea of that Body Author’s note. All references are in Arabic numerals; some italics have been removed; ‘u’ has been changed to ‘v’ and ‘i’ to ‘j’ in accordance with modern orthography; all translations from Latin are my own. For commenting on drafts I am extremely grateful to Kinch Hoekstra, Susan James and John Robertson. 1 2 3 4 5 6

On the evolution of Hobbes’ thinking about time, see Michael Edwards, Time and the Science of the Soul in Early Modern Philosophy (Leiden, 2013), 163–206. Thomas Hobbes, Elements of Philosophy, the first section, concerning Body (London, 1656), 67. Ibid. Ibid. Hobbes, Elements of Philosophy, 68. Hobbes, Elements of Philosophy, 68.

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passing out of one Space into another by continuall succession.’7 This latter ‘Idea or Phantasme’, Hobbes declares, is what we call time. ‘For seeing all men confesse a Yeare to be Time, and yet do not think a Year to be the Accident or Affection of any Body, they must needs confesse it to be, not in the things without Us, but only in the Thought of the Mind.’8 Hobbes’ first conclusion is thus that time must simply be a mental image of continual succession. ‘What then can Dayes, Moneths and Yeares be, but the Names of such Computations made in our Mind?’9 He does not, however, consider this view to be adequate to count as a definition of time. The reason is that ‘this word Time comprehends the notion of Former and Later, or of Succession in the motion of a Body, in as much as it is first Here then There’.10 Hobbes’ final word is thus that, to supply a ‘compleat Definition’, what needs to be said is that ‘TIME is the Phantasme of Before and After in Motion’.11 One dramatic implication of Hobbes’ definition is that the Christian way of thinking about time and eternity must be mistaken. The orthodox view, originally formulated by Augustine and influentially propagated by Boethius, centred on the claim that eternity must be understood as a state of timelessness.12 As Boethius expresses the belief in De trinitate, ‘there is a great difference between the present of our affairs, which is now, and the divine present’.13 He proceeds to explain that ‘our idea of “now” – something as it were running its course – makes time’.14 ‘By contrast, the divine “now” – which is permanent and unmoving – makes eternity’.15 When Aquinas commented on this passage in his Summa theologiae in the course of considering ‘Whether God is eternal’,16 he rephrased it in the form of the claim that, ‘as Boethius says, the now that flows makes time, whereas the now that stands still makes eternity’.17 With this formula Aquinas articulated what became a widely 7 8 9 10 11 12

13 14 15 16 17

Hobbes, Elements of Philosophy, 69. Ibid. But see Geoffrey Gorham, ‘Hobbes on the reality of time’, Hobbes Studies, 27 (2014), 80–103, for an attempt to show that Hobbes espouses a realist view of time. Hobbes, Elements of Philosophy, 69. Hobbes, Elements of Philosophy, 70. Hobbes, Elements of Philosophy, 70. See Boethius ‘De trinitate’, 4; also ‘The Consolation of Philosophy’, 5.6, both in The Theological Tractates [and] The Consolation of Philosophy, tr. H. F. Stewart, E. K. Rand and S. J. Tester, (London, 1973), pp. 16–24, 423–35. Several commentators have noted Boethius’ apparent reliance on Augustine. For discussions see Luca Bianchi, ‘Abiding Then: Eternity of God and eternity of the world from Hobbes to the Encyclopédie’, in The Medieval Concept of Time: the Scholastic Debate and Its Reception in Early Modern Philosophy, ed. Pasquale Porro, (Leiden, 2001), 543–60, at 543–4; and James G. Wilberding, ‘Eternity in ancient philosophy’ in Eternity: A History, ed. Yitzhak Y. Melamed, (Oxford, 2016), 14–55, at 50–4. Boethius, ‘De trinitate’, 4, pp. 20–22: ‘tantumque inter nostrarum rerum praesens, quod est nunc, interest ac divinarum’. Boethius, ‘De trinitate’, 4, p. 22: ‘nostrum “nunc” quasi currens tempus facit’. Ibid.: ‘divinum vero “nunc” permanens neque movens … aeternitatem facit’. Aquinas, Summa Theologiae: Prima Pars, ed. Pietro Caramello, (Rome, 1950), 1a. 10. 2, p. 43, col. 1: ‘Utrum Deus sit aeternus’. Aquinas, Summa Theologiae, 1a. 10. 2, p. 43, col. 1: ‘dicit enim Boetius quod nunc fluens facit tempus, nunc stans facit aeternitatem’.

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accepted tenet of scholastic thought: that eternity takes the form of a nunc stans, a standing still of time and hence a state beyond temporality. As he confirms at the end of his discussion, we need to understand that ‘whereas time has an earlier and a later, eternity has neither an earlier nor a later’ and is consequently timeless.18 Hobbes traces the implications of his contrasting view of time in Part IV of Leviathan, deploying his analysis as a means of ridiculing the orthodox way of thinking about eternity. Mounting his satire on ‘vain philosophy’ in Chapter 46, he scornfully dismisses the entire discussion as an instance of how the Schoolmen, by introducing the absurdities of Aristotelian philosophy into religion, helped to undermine the reputation of the church.19 To Hobbes it seems obvious that, because time is simply a subjective experience of continual succession, ‘the meaning of Eternity’ cannot be anything other than ‘an Endlesse Succession of Time’.20 But as he rightly says, the Schoolmen ‘will not have it’.21 Alluding to Aquinas, Hobbes reminds us of their rival contention ‘that Eternity is the Standing still of the Present Time, a Nuncstans (as the Schools call it)’.22 His sole comment, offered with withering sarcasm, is that this is a doctrine ‘which neither they, nor any else understand, no more than they would a Hic-stans for an Infinite greatnesse of Place’.23 Hobbes subsequently restated his argument in The Questions Concerning Liberty, Necessity, and Chance, his final reply to Bishop Bramhall on these issues, which he published in 1656.24 He notes that according to Bramhall we cannot conceive of eternity as anything other than ‘an indivisible point’. He responds with mock earnestness that ‘as soon as I can conceive Eternity to be an indivisible point, or any thing, but an everlasting succession, I will renounce all I have written in this subject’. He is now explicit in assuring us that that ‘I know St. Thomas Aquinas calls eternity Nunc stans, an ever abiding now’. But of this doctrine he merely remarks that, although this is ‘easy enough to say’, he ‘never could conceive it’, and refuses to believe that anyone understands what is being claimed.25 With this conclusion Hobbes implicitly repudiates the widely held belief, Platonist in origin, that there exists a world of Forms lying outside time which nevertheless contains the essence of objects and qualities. For Hobbes the concept of 18 19

20

21 22 23 24 25

Aquinas, Summa Theologiae, 1a. 10. 5, p. 46, col. 1: ‘tempus habit prius et posterius … aeternitas autem non habit prius neque posterius’. Thomas Hobbes, Leviathan (1651), ed. Noel Malcolm, 3 vols. (Oxford, 2012), vol. 2, Chapter 12, p. 184. For discussion see Bianchi, ‘Abiding then’; and Yitzhak Y. Melamed, ‘Eternity in early modern philosophy’, in Eternity: A History, ed. Yitzhak Y. Melamed, (Oxford, 2016), 134–7. Hobbes, Leviathan, vol. 3, Chapter 46, p. 1,084. For Hobbes on eternity see William Lund, ‘Tragedy and education in the state of nature’, Journal of the History of Ideas, 48 (1987), 393–410, at 400–1; Bianchi, ‘Abiding then’, 548–52. Hobbes, Leviathan, vol. 3, Chapter 46, p. 1,084. Ibid. Ibid. For a discussion see Nicholas D. Jackson, Hobbes, Bramhall and the Politics of Liberty and Necessity: A Quarrel of the Civil Wars and Interregnum (Cambridge, 2007), 199–219. Hobbes, Questions concerning Liberty, 257.

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such a timeless universe makes no sense. Throughout Leviathan, he frequently recurs to the contention that, whenever we speak about time, we cannot be referring to anything other than our experience of a continuing process or flow, and hence to ‘successions of events’.26 ‘Princes succeed one another; and one Judge passeth, another commeth; nay, Heaven and Earth shall passe’.27 It follows that, when we say that something is eternal, we can only mean that it ‘can never cease’.28 ‘When a Body is once in motion, it moveth (unless something els hinder it) eternally’, and by this we mean that it will continue in motion ‘for ever’.29 Those who insist on talking instead about the ‘eternal-Now’ are merely adopting the ‘canting of Schoole-men’ and mouthing ‘names that signifie nothing’.30 2 

Hobbes’ views about time and eternity carry with them a number of theological and political implications that he pursues at several stages in Parts II and III of Leviathan.31 He feels prompted in the first place to engage in some fierce polemics about how to understand the Christian promise of eternal life. During the 1640s, a number of puritan theologians had reintroduced the scholastic analysis of time into their accounts of the second coming and the day of judgement. They had argued that, when the saved go to heaven and the damned descend into hell, the condition of eternal life that the saved will thereafter enjoy will be one of timelessness. Thomas Hill, the puritan Master of Trinity College Cambridge, preached a sermon on God’s Eternal Preparations in 1648 on precisely this theme. He explicitly draws on ‘the learned Boëtius’ and his belief that ‘Time is Nunc fluens, but Eternitie is Nunc stans; a standing moment’ which is unbounded and infinite.32 According to Hill, the saved ‘shall have possession of this eternitie’ after the day of judgement, and will thereafter dwell in heaven, where God ‘means to entertain them eternally’. We may ‘have a certaintie’ that this ‘standing moment’, this life beyond the flow of time, is the eternity ‘that Jesus Christ hath purchased’ for those who truly believe.33 A fuller explication of eternity as a condition of timelessness was provided by the puritan preacher Isaac Ambrose in his treatise of 1650 entitled Ultima, the final section of his trilogy on ‘the first, middle and last things’. Ambrose offers two accounts 26 27 28 29 30 31

32 33

Hobbes, Leviathan, vol. 3, Chapter 46, p. 1,052. Hobbes, Leviathan, vol. 2, Chapter 26, p. 432. Hobbes, Leviathan, vol. 2, Chapter 27, p. 454. Cf. vol. 3, Chapter 38, p. 718; Chapter 42, p. 822; Chapter 44, p. 972. Hobbes, Leviathan, vol. 2, Chapter 2, p. 26. Hobbes, Leviathan, vol. 2, Chapter 5, p. 72. For an historiographical survey of how Hobbes has been treated as a theologian, see Jonathan Sheehan, ‘Thomas Hobbes, D.D.: theology, orthodoxy, and history’, The Journal of Modern History, 88 (2016), 249–74. Thomas Hill, God’s Eternal Preparations for his Dying Saints (London, 1648), 8, 9. Hill, God’s Eternal Preparations, 4, 7, 9, 13.

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of the last days, and thus of our passage from temporality to eternity. First he speaks about the day of doom, when ‘a terrible sentence’ will be passed on the reprobate. They will be consigned to the fires of hell, where they will find ‘no light but smoak, no Chimes nor Clock to passe away the night, but timelesse eternitie’.34 Later, quoting St Matthew, Ambrose speaks of the moment when the Lord will separate the sheep from the goats. The effect of His judgement will be ‘a separation indeed, not for a day, or a year, but for timeless eternity’.35 This, we are told, is the ‘vast and immeasurable gulfe betwixt heaven and hell’.36 One is a place of eternal joy, the other of eternal torment, and both are eternal in the sense of existing timelessly.37 When Hobbes responds to these claims in Part III of Leviathan, he begins by admitting that the Holy Scriptures undoubtedly appear to affirm that there will be a second coming, a general resurrection and a day of judgement.38 He regards it as an obvious misreading, however, to suppose that these climacteric events will bring about the end of time once the saved have ascended to heaven and the damned have descended into hell.39 He insists in the first place that there will be no ascent for the saved. ‘I have not found any text that can probably be drawn’ to show that any such event will take place.40 Nor will there be any descent of the damned into hell. There is simply no such realm, since everything said in the Scriptures ‘concerning Hell Fire, is spoken metaphorically’,41 and ‘there is no place of Scripture’ to prove otherwise.42 According to Hobbes, what will happen at the day of judgement is that those who have failed to honour God will suffer ‘a Second Death’, after which they ‘shall die no more’.43 Meanwhile those who have been saved will be resurrected from death to live eternally under the rule of God.44 God’s temporal reign, ‘which by revolt of the Israelites had been interrupted in the election of Saul’, will simply be resumed, and the sin of rejecting God as their ruler will be expunged.45 Christ will thereafter 34 35 36 37 38

39 40 41 42 43 44 45

Isaac Ambrose, Ultima, The last things (London 1650), 118–19. Ambrose, Ultima, 131. Ibid. But see Ambrose, Ultima, 150–1, where he appears to equate eternity with lasting ‘for ever’. Hobbes, Leviathan, vol. 3, Chapter 41, p. 760. Hobbes’ view of Christianity as a prophetic religion is classically examined in John G. A. Pocock, ‘Time, history and eschatology in the thought of Thomas Hobbes’, in John G. A. Pocock, Politics, Language and Time. Essays on Political Thought and History (London, 1971), 148–201, esp. 159–80. Jürgen Overhoff, ‘The theology of Thomas Hobbes’s Leviathan’, The Journal of Ecclesiastical History, 51 (2000), 527–55, esp. 538–9. Hobbes, Leviathan, vol. 3, Chapter 38, p. 726. Hobbes, Leviathan, vol. 3, Chapter 38, p. 714. Hobbes, Leviathan, vol. 3, Chapter 44, p. 990. For Hobbes’ heretical views on hell, see Christopher McClure, Hobbes and the Artifice of Eternity (Cambridge, 2016), 119–46. Hobbes, Leviathan, vol. 3, Chapter, 38, p. 718 and Chapter 44, p. 992. Hobbes, Leviathan, vol. 3, Chapter, 38, p. 708. Hobbes, Leviathan, vol. 3, Chapter 35, p. 642. On Hobbes’ derivation of kingship from original sin, see Warren Zev Harvey, ‘The Israelite Kingdom of God in Hobbes’s political thought’, Hebraic Political Studies, 1, (2006), 310–27, at 323–7.

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govern as ‘an eternall King, but under his Father’, in ‘a Civil Common-wealth, where God himself is Soveraign’.46 The outcome of the story, in Hobbes’ telling, is thus that the place where those who have been saved ‘shall enjoy that Eternall Life, which Christ hath obtained for them’ will be here on earth.47 Hobbes is emphatic, however, that this is not to affirm that the saved will live in a state of timelessness. Rather Christ will ‘thence forth reign over them, (under his Father) Everlastingly’ that is, for an endless succession of time.48 The distinction between living timelessly and living for ever is one that Hobbes is anxious to underline. He does so by emphasising one obvious consequence of living everlastingly on earth, which is that no subsequent procreation will be able to take place. The condition of the saved will be the same as Adam and Eve would have enjoyed if they had not sinned. They will continue to live on earth ‘in their individuall persons’, and will do so ‘for ever’.49 But if people destined to live for ever continue to procreate ‘as Mankind doth now’, it will not take long for the earth to be completely filled up, and unable ‘to afford them place to stand on’. The price of eternal life is thus that ‘there shall be no Generation’.50 This is simply one implication of recognising that eternity is nothing other than an endless succession of time.51 Hobbes at the same time rejects a further eschatological belief that had gained currency in the revolutionary years of the late 1640s. A number of puritan preachers had proclaimed that the day of judgement is now close at hand, and thus that everyone is living in the last days before the end of time. Benjamin Hubbard in his Sermo secularis of 1648 had warned that ‘these are the last days’ before the second coming, and that ‘the beginning of those times is now nigh’.52 More dramatically, George Foster had confided in his Pouring Forth of 1650 that God had lately spoken to him in a trance, revealing that ‘the day of the Lord is at hand’, that ‘these are the last dayes’, and that ‘the time of the resurrection is now come’.53 Foster sometimes appears to imply that, with the deliverance of God’s judgement on the world, time itself will come to an end.54 With this suggestion he echoes the explicit pronouncements of numerous puritan preachers from the early 1640s. John Archer had published a tract in 1642 on The Personal Reigne of Christ in which he 46 47

48 49 50 51 52 53 54

Hobbes, Leviathan, vol. 3, Chapter 38, p. 708 and Chapter 41, p. 760. On God as a temporal monarch, see Pocock, ‘Time, history and eschatology’, 170–4. Hobbes, Leviathan, vol. 3, Chapter 38, p. 700. Matthew Rose, ‘Hobbes as a political theologian’, Political Theology, 14 (2013), 5–31, at 23–9, treats this claim as Hobbes’ central theological argument. On its underlying materialism, see James Farr, ‘Atomes of Scripture: Hobbes and the politics of biblical interpretation’, in Thomas Hobbes and political theory, ed. Mary Dietz, (Lawrence, Kansas, 1990), 172–96, esp. 181–4; Overhoff, ‘Theology of Hobbes’s Leviathan’. Hobbes, Leviathan, vol. 3, Chapter 38, p. 726. Hobbes, Leviathan, vol. 3, Chapter 38, p. 702 and Chapter 44, p. 972. Hobbes, Leviathan, vol. 3, Chapter 38, p. 702. See Overhoff, ‘Theology of Hobbes’s Leviathan’, 539–40. Benjamin Hubbard, Sermo Secularis (London, 1648), 28, 42. George Foster, The Pouring Forth of the Seventh and Last Viall (1650), 3, 5, 43. Foster, Pouring Forth, 8, 53.

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had anticipated Hobbes’ claim that Christ ‘shall visibly possesse a Monarchicall State and Kingdome in this World’.55 By contrast with Hobbes, however, Archer had promised that this kingdom will appear at ‘the world’s end, and the end of time’.56 Francis Woodcock, another prominent London preacher, reiterated the argument in a sermon of 1644 entitled Christ’s Warning-piece. He, too, maintains that, with the second coming and the day of judgement, we shall reach ‘the last end of time’, so that we can already say that ‘a Fate hangs over these last times’.57 Hobbes warns us that there are always good reasons for being suspicious of those who offer ‘Prognostiques from Dreams’, and especially ‘Prognostiques of time to come’.58 He almost appears to be responding directly to Foster and others like him when he observes, with studious moderation, that ‘if a man pretend to me, that God hath spoken to him supernaturally, and immediately, and I make doubt of it, I cannot easily perceive what argument he can produce, to oblige me to beleeve it’. The truth is, he memorably adds, that for anyone to assert that God ‘hath spoken to him in a Dream, is no more then to say he dreamed that God spake to him’.59 Hobbes concludes by advising us to be ‘very circumspect, and wary’ of anyone ‘pretending himself to be a Prophet’, since such people are ‘worthy to be suspected of Ambition and Imposture’.60 As will be evident, however, Hobbes has a more fundamental reason for believing that those who prophesy that ‘the last days’ are imminent are likely to be either cynical or insane.61 As he has already explained, the day of judgement will not in fact bring about the end of time. Rather the saved will continue to live for ever on earth. Moreover, there is no evidence that this great alteration is about to take place. The Scriptures assure us that the second coming will be preceded by ‘a darkening of the Sun and Moon’ and ‘a falling of the Stars’. But it is surely clear, Hobbes observes with disdainful bathos, that these events are ‘not yet come’.62 Furthermore, even if this cataclysm were in fact imminent, it would still make no sense to speak of our living in the last days before the coming of the nunc stans of eternity. Hobbes never ceases to insist that to talk in such terms is to speak meaningless nonsense. These considerations allow Hobbes to reflect with unabated optimism on the possibility and importance of improving our current life on earth. He concedes that states are always ‘subject to violent death, by foreign war’ and ‘Intestine Discord’.63 Nevertheless, he argues that ‘Soveraignty, in the intention of them that make it,

55 56 57 58 59 60 61 62 63

John Archer, The Personal Reigne of Christ upon Earth (London, 1642), title-page. Archer, Personal Reigne, 39. Francis Woodcock, Christ’s Warning-piece (London, 1644), 8, 14. Hobbes, Leviathan, vol. 2, Chapter 2, p. 34 and Chapter 12, p. 174. Hobbes, Leviathan, vol. 3, Chapter 32, pp. 578, 580. Hobbes, Leviathan, vol. 3, Chapter 36, p. 674. See Hobbes, Leviathan, vol. 2, Chapter 8, pp. 112–14 on their insanity. Hobbes, Leviathan, vol. 3, Chapter 42, p. 876. Hobbes, Leviathan, vol. 2, Chapter 21, p. 344.

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be immortall’, and that states can be designed with the hope that they will ‘live, as long as Man-kind’.64 It is true that they will probably not do so, for ‘nothing can be immortall, which mortals make’.65 But he believes that ‘Principles of Reason’ can ‘be found out, by industrious meditation’ that will enable us ‘to make their constitution (excepting by externall violence) everlasting’, and at the end of Part II of Leviathan he assures us that these principles ‘are those which I have in this discourse set forth’.66 He accordingly feels confident in concluding that he has supplied the means to enable men ‘to conforme themselves into one firme and lasting edifice’ that will serve their purposes for a long stretch of time without any danger that it will ‘fall upon the heads of their posterity.’67 He ends by claiming nothing less than that he has succeeded, at least in principle, in rescuing the perpetuity of the state from the ravages of time. 3

Hobbes’ understanding of time not only prompts him to voice a number of eschatological doubts; it also leads him to question two widespread beliefs about the importance of time in political life. One implication of his basic claim that time amounts to nothing more than an idea of continual succession is that the passage of time cannot possibly have any normative significance. This is not to deny that there is a limited sense in which Hobbes is interested in the question of time in relation to the lawful exercise of power. He is always careful to distinguish between the granting of authority for restricted and for unrestricted periods of time. When in Chapter 19 of Leviathan he discusses the rule of ‘Temporary Monarchs’ – such as the Dictators in ancient Rome – he explains that they were permitted to rule ‘for a time’, and were then deprived of their power ‘at the end of that time’, which usually lasted only for ‘certaine Yeares or Moneths’.68 By contrast, Chapter 22 speaks of what Hobbes describes as authority held in perpetuity, such as that of certain corporate bodies. He recognises that there are some corporations ‘whose times are limited’, so that they, too, continue to exist only ‘for a time’.69 But others, such as the state itself, are intended to be ‘perpetuall’.70 As he had already underlined in Chapter 17, it is never sufficient ‘for the security, which men desire should last all the time of their life, that they be governed, and directed by one judgement, for a limited time’.71 The aspiration must be to ‘Institute the Common-wealth, for their perpetuall, and not temporary security.’72 64 65 66 67 68 69 70 71 72

Hobbes, Leviathan, vol. 2, Chapter 21, p. 344 and Chapter 29, p. 498. Hobbes, Leviathan, vol. 2, Chapter 29, p. 498. Hobbes, Leviathan, vol. 2, Chapter 30, p. 522. Hobbes, Leviathan, vol. 2, Chapter 29, p. 498. Hobbes, Leviathan, vol. 2, Chapter 19, pp. 294, 296. Hobbes, Leviathan, vol. 2, Chapter 22, p. 366. Hobbes, Leviathan, vol. 2, Chapter 22, p. 366. Hobbes, Leviathan, vol. 2, Chapter 17, p. 258. Hobbes, Leviathan, vol. 2, Chapter 19, p. 298.

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What Hobbes fiercely opposes, however, is any suggestion that the mere passage of time is capable of carrying normative significance. Here the adversaries against whom he chiefly pits himself are the common lawyers, whom he views in Leviathan with alarm as well as hostility. He is particularly anxious to refute their contention that, if some legal or political arrangement has been of long duration, the effect is somehow to endow it with legitimacy. This was a claim much canvassed in the decades preceding the outbreak of the English Civil War, when several prominent jurists had written in general terms about the character of English law, and had often appeared to equate it with time-honoured custom. One of the most forthright had been Sir John Davies, Attorney General of Ireland and briefly Lord Chief Justice before his death in 1626. Davies published a series of reports on Irish legal cases in 1615, prefacing them with an address to the Lord Chancellor, Lord Ellesmere, in which Davies expiated on the nature of common law.73 The basic proposition he defends is that ‘the Common lawe of England is nothing else but the Common custome of the Realme’.74 A similar commitment had already been announced by Sir Edward Coke, whom even Hobbes feels bound to acknowledge as a jurist of exceptional perceptiveness and experience.75 When Thomas Ashe published a selection of Coke’s legal dicta in 1618, one of the pronouncements he included was that ‘Custome overcommeth or maistereth the common law’, thereby appearing to make custom into the judge of the law’s validity.76 Summarising in The English Lawyer of 1631, Sir John Doddridge voiced his agreement that in England the law is equivalent to ‘the generall Custome of the Realme’.77 None of these writers believed, however, that custom automatically counts as law. Davies argued that the custom in question must also be ‘good & beneficiall to the people’ and must have been ‘continued without interruption time out of minde’.78 Coke in his section ‘Of custom’ in his Compleate Copy-holder, first published posthumously in 1641, endorses both these criteria, adding that any custom must also 73

74 75 76 77

78

On Davies, John G. A. Pocock, The Ancient Constitution and the Feudal Law. A Study of English Historical Thought in the Seventeenth Century (1957), re-issued as A Reissue with a Retrospect (Cambridge, 1987), 32–4, 263–7; J. W. Tubbs, The Common Law Mind: Medieval and Early Modern Conceptions (Baltimore, MD, 2000), 129–34; Alan Cromartie, ‘General Introduction’ to Thomas Hobbes, ‘A dialogue between a philosopher and a student, of the common laws of England’, ed. Alan Cromartie in Thomas Hobbes: Writings on Common Law and Hereditary Right (Oxford, 2005), xxx–xxxi. John Davies, Le Primer Report des Cases & Matters en Ley resolues & adiudges en les Courts del Roy en Ireland (Dublin, 1615), Sig.*, 2r. For Hobbes’ tribute see Hobbes, Leviathan, vol. 2, Chapter 26, p. 422. For Coke on law and custom, see Pocock, The Ancient Constitution, esp. 31–2, 37–8, 274–5; Tubbs, The Common Law Mind, 162–7. Thomas Ashe, Fasciculus Florum (London, 1618), Sig. C, 5r. John Doddridge, The English Lawyer (London, 1631), 96. On Doddridge, see Tubbs, The Common Law Mind, 166–72; Cromartie, ‘General Introduction’, xxviii–ix; David Chan Smith, Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence, 1578–1616 (Cambridge, 2014), 160–1. Davies, Le Primer Report, Sig.*, 2r.

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be of general application if it is to have the force of law.79 Most important of all, Coke lays it down that ‘Customes and Prescriptions ought to be reasonable’,80 while Davies likewise declares that it is only ‘when a reasonable act once done, is found to bee good’ that ‘it obtaineth the force of a lawe’.81 Both writers thus tend to veer in the direction of suggesting that, as Davies puts it, ‘lawe is nothing but a rule of reason’.82 Coke’s elaboration of this suggestion gave rise to his most celebrated dictum, which can be found in the first part of his Institutes, published in 1628. ‘Reason is the life of the Law; nay, the common Law it selfe is nothing else but reason, which is to be understood of an artificiall perfection of Reason gotten by long study, observation and experience, and not of every mans naturall reason’.83 Despite this emphasis on reason, Coke and Davies continue to make two forceful claims about the close connections between custom and law. One is that all valid laws are ultimately customary in origin. As Davis explains, ‘the custumary lawe of England’ is ‘the roote & touchstone of all good lawes’, and ‘doth farre excell our written lawes’.84 The process by which the rule of law developed in England is said to have been that the country was ‘enhabited alwaies with a vertuous & wise people, who ever embraced honest and good Customes, full of Reason and conveniencie’. The outcome was that these customs were gradually ‘confirmed by common vse & practise, and continued time out of minde’, with the result that they eventually ‘became the common Lawe of the Land’.85 The other proposition on which the common lawyers agree is that the law basically owes its authority to the fact that it consists of general and immemorial customs, even if some of them may have been reconsidered by the application of artificial reason over time. Thomas Ashe’s collection of Coke’s dicta includes the proposition that ‘If the Law written doe cease, wee must observe that which is allowed in manners and custome’, thereby falling back on custom as our basic authority.86 Davies goes further, supplying one of the most fulsome celebrations of the normative character of time in the legal thinking of his age. ‘This Custumary lawe’, he declares, ‘is the most perfect, & most excellent, and without comparison the best, to make & preserve a commonwealth’. This is due to the fact that ‘a Custome doth never become a lawe to binde the people, untill it hath bin tried & approved time out of minde, during all which time there did thereby arise no 79 80 81 82 83 84 85 86

Edward Coke, The Compleate Copy-holder (London, 1641), 70. Coke, The Compleate Copy-holder, 71. For Coke on custom and reason, see Smith, Sir Edward Coke, 139–40, 151–8. Davies, Le Primer Report, Sig.*, 2r. Davies, Le Primer Report, Sig.*, 4r. For Davies and other common lawyers on custom and reason, see Cromartie, ‘General Introduction’, xxviii–xxxii. Edward Coke, The First Part of the Institutes of the Lawes of England … The second Edition, corrected (London, 1629), Chapter 6, sec. 138, Sig. Bb, 1v. Davies, Le Primer Report, Sig.*, 2r. Davies, Le Primer Report, Sig.*, 2v. Ashe, Fasciculus Florum, Sig. M, 8r.

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inconvenience’.87 The special importance of time in the making of law is thus that long-established customs guarantee convenience as well as reasonableness, thereby giving an incomparable ‘vertue & force’ to any laws created in this way.88 Hobbes first confronts these claims in Chapter 11 of Leviathan, his chapter on ‘the difference of manners’.89 Anyone disposed ‘to make Custome and Example the rule of his actions’, he retorts, must be wholly ignorant of ‘the causes, and originall constitution of Right, Equity, Law, and Justice’. He immediately points the finger at ‘the Lawyers which onely use this false measure of Justice’. They are no better than ‘little children, that have no other rule of good and evill manners, but the correction they receive from their Parents, and Masters’. They are indeed worse than childish, for children are at least ‘constant to their rule’ about the pre-eminence of custom, whereas lawyers cynically manipulate it. Recalling their ambivalence about the relationship between custom and reason, Hobbes treats it as an indication of their hypocrisy. ‘They appeale from custom to reason, and from reason to custome, as it serves their turn; receding from custome when their interest requires it, and setting themselves against reason, as oft as reason is against them’.90 These criticisms are further elaborated in Chapter 26, Hobbes’ chapter on civil law. He begins by noting that, in spite of their distinctive emphasis on timehonoured custom, ‘our Lawyers account no Customes Law, but such as are reasonable’.91 Hobbes approves of this commitment, but the question it leaves unanswered is whose reason ‘shall be received for Law’. The lawyers cannot be thinking of ‘private Reason’, for this would reduce them to the level of the scholastic philosophers – always the worst thing Hobbes can say about anyone. The outcome would be to introduce ‘as much contradiction in the Lawes, as there is in the Schooles’. Nor can they defend the view, despite what ‘Sr. Ed. Coke’ maintains, that we can speak of ‘an Artificiall perfection of Reason, gotten by long study, observation, and experience’. Here the problem is that ‘long study may encrease, and confirm erroneous Sentences: and where men build on false grounds, the more they build, the greater is the ruine’.92 Hobbes subsequently underlines this criticism in his Dialogue on the common law,93 in which he complains that he has ‘never read weaker reasoning in any Author of the Law of England, than in Sir Edw. Coke’s Institutes’.94 87 88 89

90 91 92 93 94

Davies, Le Primer Report, Sig.*, 2r. Ibid. Later Hobbes wrote at length in criticism of the common lawyers in Hobbes, ‘A dialogue between a philosopher and a student, of the common laws of England’, ed. Alan Cromartie in Thomas Hobbes: Writings on Common Law and Hereditary Right (Oxford, 2005), explicitly referring to Davies (75) and Coke (49, 132, 134). For a discussion, see Cromartie, ‘General Introduction’, xxvi–xlv. Hobbes, Leviathan, vol. 2, Chapter 11, p. 158. Hobbes, Leviathan, vol. 2, Chapter 26, p. 418. Hobbes, Leviathan, vol. 2, Chapter 26, p. 422. Hobbes probably completed his Dialogue c. 1670. See Cromartie, ‘General Introduction’, xiv. Hobbes, ‘A dialogue’, 132. For Hobbes’ attack on artificial reason, see Michael Lobban, ‘Thomas Hobbes and the Common Law’, in Hobbes and the Law, ed. David Dyzenhaus and Thomas Poole, (Cambridge, 2012), 39–67, at 59–60.

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Whose reason, then, can authoritatively count as law? Hobbes answers by recalling the account he had given in Chapter 17 of Leviathan of the political covenant by which lawful states must be instituted. He declares that ‘Law in generall, is not Counsell, but Command’, and that that ‘the name of the person Commanding’ must be ‘Persona Civitatis, the Person of the Common-wealth’. The only proper definition of civil law must therefore be that it consists of ‘those Rules, which the Common-wealth hath Commanded’, and which it applies ‘for the Distinction of Right, and Wrong’.95 Hobbes admits that, as a person ‘by fiction’, the state cannot itself issue these commands, which need to be promulgated by a sovereign who has been explicitly authorised by the people to speak and act in the name of the state.96 But the essence of Hobbes’ theory of sovereignty is that, as soon as the members of a multitude agree, each with each, to authorise such a sovereign, this brings about two results. One is the engendering of the commonwealth or state; the other is the assignment of sovereign power to whatever person or group has been authorised to personate and thereby ‘carry’ the person of the state. It follows that, whenever an authorised sovereign issues a command, this counts as an action of the state and must consequently be obeyed as the law of the state.97 With this reaffirmation of his theory of state sovereignty, Hobbes is finally able to dismiss the common lawyers and their insistence on the normativity of time and its capacity to convert custom into law. He acknowledges that sometimes ‘long Use obtaineth the authority of a Law’, but he is now able to argue that whenever it does so ‘it is not the Length of Time that maketh the Authority, but the Will of the Soveraign signified by his silence’. As soon as a sovereign ceases to give silent consent to a custom, then that custom ‘is no longer Law’.98 There can therefore be no question of allowing laws to be created merely by judicial precedents.99 Nor can there be any question of accepting the childish view that ‘Length of Time’ somehow gives rise to an inherent power to control the sovereign or bring ‘prejudice to his right’.100 Those who argue in this fashion fail to recognise that ‘the Legislator is he, not by whose authority the Lawes were first made, but by whose authority they now continue to be Lawes’.101 There are in short no customs that ‘have their force, onely from Length of Time’. If they happen to be accepted as laws, this is not ‘by vertue of the Praescription of time’ but solely because ‘present Soveraigns’ have chosen to incorporate them into the constitutions of their states.102 Time itself counts for nothing.

95

Hobbes, Leviathan, vol. 2, Chapter 26, p. 414. On the state as a person ‘by fiction’ (persona fictione) see Quentin Skinner, From Humanism to Hobbes: Studies in Rhetoric and Politics (Cambridge, 2018), 22, 213, 220–1. 97 Hobbes, Leviathan, vol. 2, Chapter 17, pp. 260–2 and Chapter 26, pp. 414–16. 98 Hobbes, Leviathan, vol. 2, Chapter 26, p. 416. 99 For this claim, see Lobban, ‘Hobbes and the Common Law’, 58. 100 Hobbes, Leviathan, vol. 2, Chapter 26, p. 416. 101 Hobbes, Leviathan, vol. 2, Chapter 26, p. 420. 102 Hobbes, Leviathan, vol. 2, Chapter 26, p. 420. 96

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Hobbes even tries to show that the common lawyers ought to endorse this conclusion themselves. They agree that we can ‘account no Customes Law, but such as are reasonable’.103 As he claims to have shown, however, ‘the Judgement of what is reasonable, and of what is to be abolished, belongeth to him that maketh the Law’. But this can only be ‘the Sovereign Assembly, or Monarch’ acting as the authorised representative of the commonwealth or state.104. What makes law is neither custom nor the ‘Artificiall perfection of Reason’ to which the judges lay claim; it is simply ‘the Reason of this our Artificiall Man the Common-wealth, and his Command, that maketh Law’.105 4

Hobbes’ basic claim that time amounts to nothing more than an idea of continual succession also leaves its mark – or rather creates a blank – at the centre of his general conception of statecraft. He finds almost nothing to say about the widespread belief, central to the Renaissance genre of advice-books for rulers, that every bearer of sovereign power needs to pay special attention not merely to the passage of time but to the importance of learning how to behave with timeliness. This precept had been inherited by the political theorists of the Renaissance from their classical authorities, who had argued that we need to conceive of time in two different ways. They had spoken of chronos (χρόνος) when referring to the passage of time, but also of kairos (καιρός) when describing the most suitable or opportune time at which to speak or act.106 The latter concept was much taken up by the rhetoricians,107 and was held to carry two important implications for the practice of statecraft. One was that, if you are to succeed as a political leader, you will need to give due acknowledgement to the unpredictable as well as inexorable march of events. You will consequently need to cultivate the skill of adapting and accommodating your policies to suit the temper of the times. The other and more positive suggestion was that you may have the good fortune to live in a time favourable to effective leadership. 103 104 105

106

107

Hobbes, Leviathan, vol. 2, Chapter 26, p. 418. Hobbes, Leviathan, vol. 2, Chapter 26, p. 418. Hobbes, Leviathan, vol. 2, Chapter 26, p. 422. Martin Loughlin, ‘The political jurisprudence of Thomas Hobbes’, in Hobbes and the Law, ed. Dyzenhaus and Poole, 5–21, at 9–12, treats this contention as Hobbes’ central claim about law. Henry Liddell and Robert Scott, A Greek–English Lexicon, new ed., revised Henry Jones, 2 vols. (Oxford, 1925), vol. 1, p. 859. For recent discussions of kairos, see Joanne Paul, ‘The use of Kairos in Renaissance political philosophy’, Renaissance Quarterly, 67:1 (2014), 43–78, at 24 and n., 25 and n.; François Hartog, ‘Chronos, Kairos, Krisis: the genesis of western time’, History and Theory, 60:3 (2021), 425–39. See James L. Kinneavy, ‘Kairos: a neglected concept in classical rhetoric’, in Rhetoric and Praxis: The Contribution of Classical Rhetoric to Practical Reasoning, ed. Jean Dietz Moss, (Washington, DC, 1986), 79–105; Phillip Sipiora, ‘Introduction: The ancient concept of Kairos’, in Rhetoric and Kairos: Essays in History, Theory, and Praxis, ed. Philip Sipiora and James S. Baumlin, (Albany, NY, 2002), 1–22.

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If, however, you are to profit from this stroke of luck, you will need to learn how to seize your chances and make the best use of your opportunities.108 The underlying promise is that, if you can learn how to make timely interventions, you may be able to channel and redirect the onward flow of events.109 We encounter this understanding of kairos as early as the litany in Ecclesiastes about the need to act opportunely. There we are assured that ‘to everything there is a season, and a time to every purpose’. There is a time to keep silent and a time to speak; a time to love and a time to hate; a time of war and a time of peace (3.1–8). It was from the Roman historians, however, that the political theorists of the Renaissance largely inherited their preoccupation with the importance of timeliness.110 Livy in particular repeatedly emphasises – in the words of Philemon Holland’s translation of 1600 – how crucial it is to enjoy ‘vantage and fit opportunitie’, ‘time enough and good opportunitie’, ‘good occasion and opportunitie’.111 He also speaks of the associated importance of making sure that you take decisive action ‘whiles the occasion and opportunitie’ is offered, and thus where a specific ‘opportunitie & occasion’ serves your purposes.112 There are several passages in which Livy expands these reflections into a more general discussion of timeliness. He does so in the course of commending Hannibal’s qualities as a general, noting that ‘he would take all advantage, & omit no good opportunitie offered’.113 Most revealingly, he also does so when describing the foundation of Rome. He opens his narrative with the story of how Romulus and Remus were saved by a wolf and brought up by Faustulus, chief herdsman to the tyrannical King Amulius, whose brother’s daughter had given birth to the twins. After Romulus and Remus reached manhood they began to gather a following, and Faustulus judged that ‘due time’ and ‘good occasion’ had at last arrived to get rid of the tyrant.114 Faustulus told Romulus and Remus how Amulius had ordered them to be drowned, thereby prompting them not merely to assassinate the tyrant but to make the momentous decision to establish a new city on the site where they had been exposed to die. Rome came into being, in short, only because Faustulus seized his chance and set Romulus on a new path. 108 109 110

111 112 113 114

On these contrasting aspects of kairotic time see Sipiora, ‘The ancient concept of Kairos’; Paul, ‘Kairos in Renaissance political philosophy’, 44–5. Paul, ‘Kairos in Renaissance political philosophy’, 59, speaks of ‘a political theory of kairotic action’. But Paul also emphasises the importance of Isocrates and Plutarch in diffusing classical ideas about the importance of timeliness. See Paul, ‘Kairos in Renaissance political philosophy’, 55–9 and for a full discussion of ‘right-timing’, see Joanne Paul, Counsel and Command in Early Modern English Thought (Cambridge, 2020), esp. 41–2, 44–5, 54–63. Livy, The Romane Historie Written by T. Livius of Padua, trans. Philemon Holland, (London, 1600), 37, 86, 164. Livy, Romane Historie, 274, 413. Livy, Romane Historie, 649. Livy, Romane Historie, 5. Cf. Livy Books I and II, trans. B. O. Foster, (London, 1919), 1. 5. 5, p. 22, where Livy speaks of occasio.

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Among later Roman historians, Tacitus in his Annals is scarcely less preoccupied with what Richard Grenewey in his translation of 1598 describes as the need to ‘watch for opportunitie’ and avoid being ‘slow in taking hold of occasions’.115 Tacitus frequently speaks in these terms when describing the local wars that broke out under the early principate. Recounting how Gaul rose in revolt after the death of Germanicus, he observes that, although some Gallic leaders helped Rome to impose peace, they did so ‘the better thereby to cloake their revolt, and when occasion served, rebell with more assurance’.116 Later, when describing the war in Armenia, he explains how Rhadamistus treated the people as if they were ‘readie at all times to rebell if occasion were offered’.117 The same preoccupation with timeliness recurs no less prominently in Tacitus’ stories about the endless plotting that went on in Rome. Considering Tiberius and his trickery, he reports the emperor’s promise to Sejanus that, although he ‘will forbeare at this time to speake’ about their relationship, he will be sure to make it known ‘when opportunitie shall serve’.118 Commenting later on Claudius’ wife Agrippina, Tacitus similarly recounts how she took advantage of Claudius’ sudden illness to carry out the ‘villanous deseignments’ she had ‘long before resolved’. ‘Desirous to hasten the occasion offered’, she instantly determined how best to dispose of the emperor at such a vulnerable and hence an opportune time.119 The classic restatement in Renaissance political theory of this view of timeliness and its political significance can be found in Machiavelli’s The Prince, first translated into English by Edward Dacres in 1640.120 When Machiavelli considers the most instructive examples of those who (as Dacres puts it) ‘by their own vertues, and not by fortune, attain’d to be Princes’, he declares that ‘the excellentest of these are, Moyses, Cyrus, Romulus, Theseus, and such like’.121 They all enjoyed one special blessing of fortune, which was to be born at a time when there was an opportunity to alter the course of events. They were lucky, that is, to have ‘the occasion, which presented them with the matter wherein they might introduce what forme they then pleas’d’.122 Machiavelli promptly draws the two contrasting morals generally associated with such kairotic moments: ‘without that occasion, the vertue of their mind had been extinguish’d; and without that vertue, the occasion had been offer’d in vaine.’123 115 116 117 118 119

120 121 122 123

Tacitus, The Annales, trans. Richard Grenewey, (London, 1598), 250, 251. Tacitus, Annales, 76. Tacitus, Annales, 171. Tacitus, Annales, 103. Tacitus, Annales, 176. Tacitus himself refers in most of these passages to the importance of knowing how to act in due time (in tempore), but at this point he speaks of seizing the right occasio. See Tacitus, The Annals Books IV–VI, XI–XII, trans. John Jackson, (London, 1937), 12.66, p. 412. For a full discussion, see Paul, Counsel and Command, 11, 77–81. Niccolò Machiavelli, Nicholas Machiavel’s Prince, trans. Edward Dacres, (London, 1640), 34–5. Machiavelli, Prince, 35. Machiavelli, Prince, 35–6.

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Turning to illustrate his generalisation, Machiavelli offers a case-by-case analysis of the importance of being presented with good opportunities and the equal importance of having a talent for seizing them: It was then necessary for Moyses to find the people of Israel slaves in Aegypt, and oppress’d by the Aegyptians·to the end that they to get out of their thraldome, should bee willing to follow him. It was fit that Romulus should not bee kept in Albia, but expos’d presently after his birth that hee might become King of Rome, and founder of that City. There was need that Cyrus should find the Persians discontented with the Medes government, and the Medes delicate and effeminate through their long peace. Theseus could not make proof of his vertue, had not he found the Athenians dispers’d. These occasions therefore made these men happy, and their excellent vertue made the occasion be taken notice of, whereby their country became ennobled, and exceeding fortunate.124

Without the right opportunities, even these great leaders would have been unable to succeed; but their greatness partly lay in their ability to launch themselves on the tide of affairs that, taken at the flood, leads on to fortune. When, however, Machiavelli summarises his view of timely action at the end of The Prince, he chooses not to emphasise this active power to seize our chances. ‘The fortunate man’, he now declares, is someone ‘whose manner of proceeding meets with the quality of the times’.125 Nor can we hope to remain fortunate by adjusting our behaviour to suit changing circumstances. No one is ‘so wise, that can frame himselfe hereunto’, because no one can manage to ‘go out of the way, from that whereunto Nature inclines him’.126 Machiavelli illustrates his argument by reflecting on the career of Pope Julius II. He ‘proceeded in all his actions with very great violence’, but he ‘found the times and things so conformable to his manner of proceeding, that in all of them he had happy successe’. If, however, ‘it had been necessary for him to proceed with respects, there had been his utter ruine; for hee would never have left those wayes, to which he had been naturally inclind’.127 The capacity to act with timelines is now seen less as a talent than a matter of having the good luck to harmonise with the spirit of the age. If we turn, however, to later Renaissance discussions, we again encounter the simpler and more dynamic view of timeliness. One influential treatment can be found in Virgilio Malvezzi’s Discourses on Tacitus, first translated into English by Richard Baker in 1642. Malvezzi asks in his thirteenth Discourse what should be done ‘if he that is in the peoples favour, have an intention to make himselfe Prince’. Malvezzi’s advice to such usurpers is that they ‘shall doe well to wait for some good occasion’ to foment discontent. If they ‘stay for a good beginning, where there hath 124 125 126 127

Machiavelli, Prince, 36. Machiavelli, Prince, 205. Machiavelli, Prince, 206. Machiavelli, Prince, 209.

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preceded a good occasion’ for arousing the people, then ‘there can be no doubt of having good successe’. This being so, ‘Princes therefore must take heed, they give the people no such occasions’. They must recognise that ‘men are not moved with every light wind; but wayting for a fit opportunity, they then shew their minds when they see they have power to doe it, with the ruine of the Prince’.128 Here as elsewhere, Malvezzi’s advice is entirely centred on the need to recognise ‘fit occasions’ and seize good opportunities. A yet more unblinking analysis of princely interests had appeared two years earlier, when Henry Hunt published the first English translation of the Duc de Rohan’s Treatise of the Interest of the princes and states of Christendome. Beginning with ‘the interest of Spaine’, Rohan had first advised that a ruler must not ‘loose any occasion of intermedling in the affaires of his neighbours’, and must keep himself ‘allwaies powerfully armed’. This will not only enable him ‘to prevent the designes of his enemies’, but also ‘take his owne advantage from unexpected occasions’.129 It is crucial, however, not to overestimate one’s chances and thereby misjudge one’s opportunities. Rohan ends his treatise by returning to the salutary case of Spain, focussing on the moment when the king ‘thought fit to take his opportunitie to seise upon Cazal’. Rohan acknowledges that there was ‘great likelyhood of a fortunate successe’, especially because ‘hitherto the Spaniards had in every thing so well taken their time’. But they underestimated the determination of the French, as a result of which ‘the wheele of their good fortunes beganne here to stop, and from hence forward wee have seene a continuall company of ill accidents befall them, which last even to this day’.130 It is striking that all these self-consciously dispassionate treatises were first translated into English immediately before the outbreak of the Civil War in 1642. To many monarchist writers it evidently seemed a highly propitious moment at which to offer advice about how rulers can hope, especially in times of crisis, to seize their opportunities and turn events to their advantage. It is consequently even more striking to find that Hobbes’ Leviathan, arguably the leading monarchist treatise of the age, has nothing to say about the importance of acting with this kind of timeliness in the conduct of public affairs. This is not to say that Hobbes was unaware of the classical tradition of thinking about kairos. He is very likely to have read Livy and Tacitus on the subject, given that the catalogue of the second earl of Devonshire’s library, which Hobbes himself compiled in the 1620s, includes Livy and Tacitus in Latin,131 as well as Holland’s English translation of Livy132 and Tacitus in English, French, 128 129 130 131 132

Virgilio Malvezzi, Discourses upon Cornelius Tacitus, trans. Richard Baker, (London, 1642), 102–3. Henri, Duc de Rohan, A Treatise of the Interest of the Princes and States of Christendome, trans. Henry Hunt, (Paris, 1640), 10–11. Rohan, A Treatise, 123. Hobbes MSS (Chatsworth), MS E. 1. A, 93, 136. Hobbes MSS (Chatsworth), MS E. 1. A, 93 records ‘Livy. Eng. fol.’, an apparent reference to Holland’s translation.

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Italian and Spanish.133 Hobbes was also well acquainted with Aristotle’s references to kairos in his Art of Rhetoric. While tutoring the second earl’s son in the 1630s Hobbes had published an abbreviated translation of Aristotle’s text, citing a number of his observations about ‘fit’ and ‘opportune’ times and how to recognise ‘the best time’ to act ‘as occasion shall serve’.134 Nor does Hobbes fail to mention the idea of opportune action in Leviathan. In Chapter 10 he offers the judgement that ‘Timely Resolution’ is honourable, whereas irresolution is dishonourable, because ‘when a man has weighed things as long as the time permits, and resolves not’, this amounts to pusillanimity.135 Chapter 11 confirms that ‘Pusillanimity disposeth men to Irresolution, and consequently to lose the occasions, and fittest opportunities of action’, because they ‘lose the occasion by weighing of trifles’.136 It is remarkable, however, that Hobbes never suggests in Leviathan that a capacity to act with timeliness might be a valuable quality for rulers to cultivate. Nor does he ever speak about the need to seize our chances, nor conversely about the importance of adapting and accommodating ourselves to the temper of our times. Rather he makes it clear that he wishes to distance himself from this entire way about thinking about political life. He sees himself as engaged in an enterprise categorically different from that of offering ad hoc advice to sovereigns about how to maintain their states. He takes himself to be pursuing the far more important goal of showing how politics can be reduced to a science independent of such contingencies. As he proudly announces at the outset of Leviathan, ‘I speak not of the men, but (in the Abstract) of the Seat of Power’.137 It is part of Hobbes’ project, in other words, to set aside the mirror-for-princes tradition with its practical focus on the lessons of history and the alleged morals to be drawn from observing the conduct of affairs. He goes so far as to assert in Chapter 20 of Leviathan that all such arguments, based merely on ‘the Practise of men’, are without validity, lacking as they do any understanding of ‘the causes, and nature of Common-wealths’.138 What needs to be recognised, he contends, is that ‘the skill of making, and maintaining Common-wealths, consisteth in certain Rules, as doth Arithmetique and Geometry; not (as Tennis-play) on Practise onely’.139 According to Hobbes, the most disabling weakness in contemporary discussions about statecraft is that no one has ‘hitherto had the curiosity, or the method to find out’ the underlying principles that govern political life.140 133 134 135 136 137 138 139 140

See Hobbes MSS (Chatsworth), MS E. 1. A, 115, 136. [Thomas Hobbes], A Briefe of the Art of Rhetorique (London, 1637), 108, 162, 198, 202. Hobbes, Leviathan, vol. 2, Chapter 10, p. 140. Hobbes, Leviathan, vol. 2, Chapter 11, p. 156. Hobbes, Leviathan, vol. 2, Epistle, 4. Hobbes, Leviathan, vol. 2, Chapter 20, p. 320. Hobbes, Leviathan, vol. 2, Chapter 20, p. 322. Ibid.

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5

When we speak about time, according to Hobbes, we can only be referring to our subjective impression that life takes the form of a continual succession of events. With this contention he aims to liberate political theory not merely from the superstitions of puritan eschatology and the prejudices of legal conservatism, but also from the preoccupation with timeliness that he felt to be hindering a scientific approach to statecraft. But whereas Hobbes’ attacks on the theologians and the lawyers – whatever we may think of their merits – are forthright and unequivocal, the same can hardly be said about his efforts to portray Leviathan as a pioneering work of political science. It is true that Hobbes speaks ‘in the abstract’ about the fictional person of the state as the site of sovereignty. As we have seen, however, he admits that the state is incapable of acting unless it is represented by a natural person or body of persons authorised to speak in its name. Furthermore, he expresses a strong preference for the representation of the persona civitatis to be entrusted not to the people as a whole, nor even to a representative group, but rather to a single natural person as head of state. Finally, he expresses a strong preference for treating inheritance in the male line as the basic rule of succession in all such monarchies.141 As a result, what lies at the core of Hobbes’ purported science of politics is not so much the fictional person of the state as the natural person of the sovereign representative. Furthermore, Hobbes endows this mortal and fallible agent with a range of powers so comprehensive that even Charles I’s most absolutist counsellors might have hesitated to claim them on his behalf: His Power cannot, without his consent, be Transferred to another: He cannot Forfeit it: he cannot be Accused by any of his Subjects of Injury: He cannot be Punished by them: He is Judge of what is necessary for Peace; and Judge of Doctrines: He is Sole Legislator, and Supreme Judge of Controversies; and of the Times, and Occasions of Warre, and Peace: to him it belonged to choose Magistrates, Counsellours, Commanders, and all other Officers, and Ministers; and to determine of Rewards, and Punishments, Honour, and Order.142

It is particularly revealing that Hobbes lapses at this crucial juncture into the vocabulary of the mirror-of-princes writers whose pragmatic approach to statecraft he claims to have superseded. The figure of the sovereign, he declares, must among other things be ‘Supreme Judge of Controversies; and of the Times, and Occasions of Warre, and Peace’. But this is to concede that he will need to cultivate the skill of assessing the right times and occasions for embarking on wars and suing for peace, and will consequently need to know how to weigh advantages and seize opportunities in precisely the manner that the mirror-for-princes writers had always emphasised. 141 142

For Hobbes’ defence of hereditary right, see Skinner, From Humanism to Hobbes, 316–40. Hobbes, Leviathan, vol. 2, Chapter 20, p. 306.

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We already find this objection powerfully articulated by Hobbes’ indefatigable adversary Bishop Bramhall in his Catching of Leviathan of 1658: State-policy, which is wholly involved in matter, and circumstances of time, and place, and persons, is not at all like Arithmetick and Geometry, which are altogether abstracted from matter, but much more like Tennis-play. … A game at Tennis hath its vicissitudes, and so have States. A Tennis plaier must change his play at every stroke, according to the occasion and accidents: so must a States-man move his rudder differently, according to the various face of heaven. … In summe, general rules are easie, and signifie not much in policy. The quintessence of policy doth consist in the dexterous and skilful application of those rules to the subject matter.143

Bramhall raises a doubt about Hobbes’ project of a science of politics that needs to be pondered.144 As he suggests, Hobbes’ refusal to engage with contingencies, and his insistence on dwelling exclusively on general rules, should perhaps be regarded not as an advance in the theory of statecraft but rather as a misunderstanding of its character. 143 144

John Bramhall, Castigations of Mr. Hobbes … With an Appendix concerning The Catching of Leviathan, Or the great Whale (London, 1658), 507. Many thanks to Kinch Hoekstra for this reference. For reflections on the importance of prudence and individual skill in politics, see John Dunn, Political Obligation in its Historical Context, (Cambridge,1979), 243–99 and Interpreting Political Responsibility (Princeton, 1990), 193–215.

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7 The Recourse to Sacred History before the Enlightenment: Spinoza’s Theological–Political Treatise John Robertson

1 At the outset of his Second Discourse, Rousseau makes it a prerequisite of answering the question of the origin of inequality among men that all facts be set aside. The earliest of the facts to be discarded are those we read in the ‘sacred books’ (the Bible), since they do not depict man in the natural state. From the writings of Moses in particular, it is clear that even before the Flood, men were never in the pure state of nature. They were already social, and unequal. For Rousseau, a clear idea of man in his natural condition could only be gained by conjecture, not from historical enquiry.1 Rousseau’s dismissal of the sacred writings as historical evidence may seem an Enlightenment statement of the obvious. No major Enlightenment philosopher or historian accorded such status to the Bible as a basis for study of the nature and origins of man and society. Discarding the evidence of the Bible altogether, Voltaire pointedly began his universal history, the Essai sur les moeurs (1756), in ancient China, and gradually worked his way back west to account for the rise of Islam before taking up the story of Christianity with Charlemagne.2 The opening paragraph of William Robertson’s History of America (1777) announced his adherence to the Creation story of the monogenetic origins of all peoples of the earth – and our ignorance of their subsequent migrations. He was dismissive of those, like the Jesuit Father Lafitau, for whom sacred history continued to supply the framework for study of the ‘savage’ inhabitants of America. The ‘347 tedious pages in quarto’ which Lafitau devoted to demonstrating the affinities between their religion and I am grateful to Aaron Garrett, Mogens Lærke, Sarah Mortimer, and Silvia Sebastiani for comments and suggestions. Responsibility for the exposition and interpretation that I have offered remains, however, fully mine. 1

2

Jean-Jacques Rousseau, Discours sur l’origine et les fondemens de l’inégalité parmi les hommes, in Oeuvres complètes III Du contrat social, Écrits politiques, ed. B. Gagnebin and M. Raymond, Bibliothèque de la Pléiade (Paris, 1964), 132–3. Voltaire, Essai sur les moeurs et l’esprit des nations, in the edition by B. Bernard, J. Renwick, N. Cronk, J. Godden (Oxford: Voltaire Foundation, 2009), Tome 2, Avant-propos and Chapters 1–8.

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that of ‘our ancient fathers’, Adam and the first Patriarchs, were simply ‘unprofitable labour’.3 But Rousseau had not conjured the possibility of writing human history from the Bible out of nothing. On the contrary: until very recently, and particularly in the hundred years prior to 1750, sacred history had been a privileged source for such enquiries. In this chapter, I want to look more closely at this distinctive, but neglected, way of framing the study of human social and political organisation. What was involved in thinking in sacred historical terms about man and society, and what were the outcomes of doing so? Sacred history may be defined as ‘the history of God’s actions in and upon the world’,4 and in particular his relations with his chosen peoples. In the Jewish case, the chosen people were the Hebrews, the descendants of Abraham, Isaac and Jacob, whose history is recorded in the Jewish Bible. This Bible had its own canon, of which the first five books, the Torah or Pentateuch, supposedly written by Moses, constituted the foundation. In the Christian case, sacred history encompassed but extended beyond the Old Testament, to include all who accepted the salvific message of Jesus Christ and his Apostles in the New Testament. Since that message was understood by Paul and other Apostles to be universal in scope, Christian sacred history potentially also covered the gentiles who had yet to be converted. Christian sacred history had also become ecclesiastical, as its principal subject (and agent) became the Church, responsible not only for the guidance of Christians awaiting the second coming of Christ, but for maintaining the authority of their Bible. As the scriptural record of God’s word, the Bible comprehended several genres: historical narrative, compilations of laws, poetry, predictive prophecy, lives, and letters of instruction to the faithful. But it was a defining characteristic of Judaism and Christianity as monotheisms that their God was revealed to his peoples through narratives of their interactions, narratives which affirmed the priority (in the Hebrew case also antiquity) and continuing ‘election’ of the chosen peoples. As such, sacred history had been a resource for those seeking historical models and moral lessons from the very beginning of its existence in written form. But I want to suggest that it was given a new lease of life in the mid-seventeenth century, as a resource specifically for argument over the formation of society and government, in works by Thomas Hobbes and Benedict Spinoza. Political and intellectual contexts for this recourse to sacred history as a framework for political thinking are both apparent. But what was vital, I shall argue, was the effort that Spinoza, and to a lesser extent Hobbes, made to identify and explain the terms in which sacred history had been constructed. It was not simply a matter of applying its lessons, as political thinkers were accustomed to applying those of civil history. Sacred history, Spinoza 3

4

William Robertson, The History of America (1777), in the edition of The Works of William Robertson, in eight volumes (London, 1840), VI, 1, 255, 363 and n. 86. The reference was to J.-F. Lafitau, Moeurs des sauvages ameriquains, comparées aux moeurs des premiers temps (Paris, 1724). John G. A. Pocock, Barbarism and Religion V Religion; the First Triumph (Cambridge, 2010), 2, followed by his definition of ‘ecclesiastical history’.

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maintained, must first be understood from the ‘inside’, as it was represented in the specific body of texts known as the Bible, before lessons were drawn from it.

2 The obvious religious and political context for this recourse to sacred history was the renewed challenge of the churches, Reformed and Counter-Reformed, to the civil authorities in key European states. Between 1580 and 1620 the Catholic League had confronted (and assassinated) two kings of France, Rome’s leading theologians had publicly disputed the independence and Supremacy of James I of England, and the Calvinist wing of the Dutch Reformed Church had successfully overthrown the liberal, ‘Arminian’ regime of Oldenbarneveldt and his supporters in the cities of Holland. For many political philosophers the gravity of the challenge to civil authority had been sharpened by their acceptance of Bodin’s new concept of sovereign power, which made it harder for either side to accept the previous compromises of Gallican jurisdictionalism (on the Catholic side) and Erastianism (on the Protestant). A sovereign respublica, detached from and set over the civitas, was incompatible alike with an independent Reformed Church or Papal supremacy, however indirect.5 But if the power of the civil sovereign was to be justified from within sacred history, new readings of that history would be essential. As important to understanding the renewed engagement with sacred history by political thinkers, however, was the intellectual context provided by the growing scholarly interest in the text and contexts of the Bible. By 1600 these were attracting the sort of innovative philological and historical study which Humanists had previously devoted to the texts of Greek and Roman antiquity. Headed by Joseph Scaliger, an array of scholars across Europe were applying themselves to the text of the Bible, examining its different versions and the languages in which they had passed down, the composition of its books, and the validity of their inclusion in the canon. Scaliger likewise pointed the way in investigation of the surviving records of other ancient near-eastern peoples, the Egyptians and the Chaldeans. Together these enquiries were brought to bear on the content of the Biblical narratives, reassessing their coherence and the compatibility of their chronologies. It was once assumed that such deconstructive criticism must have had a subversive effect, eroding the Bible’s credibility. Recent studies, however, have demonstrated that the assumption is at best premature.6 To be sure, Biblical scholarship in the seventeenth 5

6

On Bodin’s separation of the respublica from the civitas, creating space for the concept of sovereign power, and making it harder to balance civil and ecclesiastical authority, Annabel Brett, ‘Political Thought’, in H. M. Scott, ed., The Oxford Handbook of Early Modern European History 1350–1750 (Oxford, 2015), II, 29–55, specifically 32–6. Anthony Grafton, Joseph Scaliger 2 vols., (Oxford, 1983–1993), the pioneering modern study; among recent contributions, Nicholas Hardy, Criticism and Confession. The Bible in the seventeenth-century Republic of Letters (Oxford, 2017) and Timothy Twining, The Limits of Erudition. The Old Testament in post-Reformation Europe (Cambridge, in press).

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century was inflected by confessional allegiance, while a few radicals took advantage of the questioning of old certainties to support their heterodoxy. But the effect of disagreement was to complicate and stimulate, not to undermine the field of enquiry. As Catholic and Protestant scholars responded to each other’s findings, the intellectual interest and importance of their field only became more widely apparent. Nor did exposure of the Bible’s interrupted and relatively recent textual history undermine its status as the oldest written source for human history, especially when – as Rousseau acknowledged – written evidence still took priority over any other. Scholars have been aware for some time that Hobbes in De cive (1642, 1647) and more fully in Part III of Leviathan (1651), and Spinoza in the Tractatus theologico–politicus (1670) engaged with several of the most critical issues raised by early modern Biblical scholarship. Contrary to early expectation, it is now also clear that neither was an original contributor to the scholarly debate, Noel Malcolm pointing out that their most radical thesis, that the Old Testament had not been written by Moses and the prophets, but by Ezra the Scribe, had previously been discussed by a long line of Jewish and Christian scholars.7 But if Hobbes and Spinoza were not intervening in the scholarly debate, what were they doing? Commentary has approached the problem along two well-established routes. One begins from philosophy, to explore the relation between the God of their respective metaphysics and the God they depict from the Bible. Reconciliation of the two is by no means straightforward, but there is a recognisable tendency to assume that philosophy should take priority over theology, and to infer that the former compromised if it did not positively subvert the Bible’s truth claims.8 A second approach identifies intellectual and political contexts for the two thinkers’ engagement with the Bible. Hobbes’ rendering of the Hebrews’ covenants with God and with Moses in Sinai, followed by the rule of the Judges and their replacement by kings in defiance of the divine admonition retailed by Samuel, has been set in the context of seventeenth-century ‘political Hebraism’,9 while his subsequent account of the roles 7 8

9

Noel Malcolm, ‘Hobbes, Ezra, and the Bible: the history of a subversive idea’, in his Aspects of Hobbes (Oxford, 2002), 383–431. In both cases the literature is extensive. Recent studies of Hobbes in this vein include: Luc Foisneau, Hobbes et la toute-puissance de Dieu (Paris, 2000); Agostino Lupoli, ‘Hobbes and religion without theology’, in A. P. Martinich and Kinch Hoekstra, eds., The Oxford Handbook of Hobbes (Oxford, 2016), 453–80; and Arash Abizadeh, ‘Hobbes’s conventionalist theology, the Trinity, and God as an artificial person by fiction’, The Historical Journal, 60 (2017), 915–41. On Spinoza, even more selectively: Theo Verbeek, Spinoza’s Theologico–Political Treatise. Exploring ‘the Will of God’ (Aldershot, 2003); Yitzak Y. Melamed, ‘The metaphysics of the Theological-Political Treatise’, in Y. Y. Melamed and M. A. Rosenthal, eds., Spinoza’s Theological-Political Treatise. A critical guide (Cambridge, 2010), 128–42; and Aaron Garrett, ‘Knowing the essence of the state in Spinoza’s Tractatus Theologico–Politicus’, European Journal of Philosophy, 20:1 (2012), 50–73. Likewise a growing literature, from John G. A. Pocock, ‘Time, history and eschatology in the thought of Thomas Hobbes’, in his Politics, Language and Time. Essays on Political Thought and History (London, 1972), 148–201, to, most recently, Luka Ribarević, ‘Political Hebraism in Leviathan: Hobbes on I Samuel 8’, in Domagoj Vugeva and Luka Ribarević, eds., Europe and the Heritage of Modernity (Zagreb, 2017), 165–89, and Alison McQueen, ‘Mosaic Leviathan. Religion and rhetoric in Hobbes’s

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of Christ and the Apostles and their relation to the civil authorities has been read as subversive of positions taken by leading Anglican theologians in the 1630s and 1640s.10 The identification of contexts for Spinoza’s Tractatus theologico–politicus is, if anything, still better developed. These include the long-running Dutch debate over the affinity between the Hebrew Republic and the United Provinces;11 and the almost equally long-running efforts of the Calvinist Counter-Remonstrants to impose the authority of the Reformed Church on religious and intellectual life, at the expense of the more liberal Remonstrants and others even more heterodox.12 A further, recently explored context is the extent to which Dutch scholarly debate over the Bible overflowed into disputes over religious doctrine and practice involving the clergy at large and their congregations. If anything, Jetze Touber has argued, the crossover between Biblical scholarship and religious and political controversy intensified in the second half of the seventeenth century, underlining the urgency of Spinoza’s intervention.13 As contextual studies should, all these have sharpened our understanding of the point of Hobbes’ and Spinoza’s recourse to the Bible: with whom they may have been arguing, and what they sought to prove. Classic and revealing as these approaches are, however, they both seek to explain their object, the seventeenth-century engagement with sacred history as it is recorded in the Bible, from the ‘outside’ – from its intellectual and religious contexts. The object itself, sacred history as the ‘inside’, is taken for granted, as if it simply existed objectively. At the least, it is assumed, the writing and appropriation of sacred history can be studied in the same way as we study the writing and political uses of civil history. But this assumption is belied by Spinoza and Hobbes themselves. For it can be

10

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political thought’, in L. van Apeldoorn and R. Douglas, eds., Hobbes on Politics and Religion (Oxford, 2018), 116–34. Richard Tuck, ‘The civil religion of Thomas Hobbes’, in Nicholas Phillipson and Quentin Skinner, eds., Political Discourse in early modern Britain (Cambridge, 1993), 120–38; Johann Sommerville, ‘Leviathan and its Anglican context’, in Patricia Springborg, ed., The Cambridge Companion to Hobbes’s Leviathan (Cambridge, 2007), 358–74; Sarah Mortimer, ‘Christianity and civil religion in Hobbes’s Leviathan’, in Martinich and Hoekstra, eds., Oxford Handbook of Hobbes, 501–19, esp. 509–15. Michael A. Rosenthal, ‘Why Spinoza chose the Hebrews: the exemplary function of prophecy in the Theologico–Political Treatise’, History of Political Thought, 18 (1997), 207–41, esp. 231–40; Theodor Dunkelgrün, ‘“Nederlands Israel”: political theology, Christian Hebraism, Biblical antiquarianism, and historical myth’, in L. Cruz and W. Frijhoff, eds., Myth in History, History in Myth (Leiden, 2009), 201–36; Yitzak Y. Melamed, ‘Spinoza’s respublica divina. The rise and fall, virtues and vices of the Hebrew Republic’, in O. Höffe, ed., Baruch de Spinozas Tractatus theologico–politicus (Berlin, 2013), 177–92; René Koekkoek, ‘The Hebrew republic in Dutch political thought, c. 1650–1675’, in A. Weststeijn and W. Velema, eds., Ancient Models in early modern Republican Imagination (Leiden, 2017), 234–58. Susan James, Spinoza on Philosophy, Religion and Politics. The Theological–Political Treatise (Oxford, 2012), the fullest statement of this case, while also engaging with the philosophy of the Theological– Politica Treatise. Dirk van Miert, The Emancipation of Biblical Philology in the Dutch Republic 1590–1670 (Oxford, 2018); and Jetze Touber, Spinoza and Biblical Philology in the Dutch Republic 1660–1710 (Oxford, 2018).

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shown that they did ask the critical questions, how we should understand and relate sacred history, and what is required to read the text of the Bible as sacred history. In other words, they recognised that there was an ‘inside’ to sacred history, a set of conceptual referents which gave the ‘history’ related in the Bible its ‘sacred’ character, distinct from other forms of history. To engage with sacred history they would have to reconstruct in terms understandable in the seventeenth century what was itself an intellectual construction: one, moreover, whose textual history was now known to be unusually complex – its composition discontinuous, its languages plural and subject to repeated translation, its ‘authors’ in no simple sense those whose names were attached to its books, and its narratives inconsistent in their chronologies and therefore uncertain as relations of fact. It is my contention that Hobbes and Spinoza set themselves to reconstruct sacred history on such a basis, in the light of contemporary scholarly criticism of the text of the Bible. Of the two, Hobbes was either less thorough in his answers to the critical questions, or perhaps just less convinced of the feasibility of answering them; accordingly, it is Spinoza’s treatment of sacred history which will be my primary focus. But I shall return to Hobbes to highlight features of his treatment which throw into relief some significant differences between them. The historian of early Islam John Wansbrough has suggested that the revealed monotheisms, Judaism, Christianity and Islam, have in common three ‘constants’ or ‘basic categories’: prophet, scripture and sacred language. These form a ‘system of co-ordinates’ which constitute the monotheisms’ internal structure: ‘prophets are the agents of divine revelation which, once recorded, must contain the sacred language of God’s word.’ In each case these ‘constants’ will be accompanied by ‘variables’ specific to the individual monotheism.14 Spinoza discounted Islam, instead treating revealed religion as encompassing Judaism and Christianity together, although he still identified what was distinctive to each. In doing so, he focussed on the same three basic co-ordinates: prophecy and prophets, the record of Scripture,; and sacred language, the Word of God. They are reproduced, in sequence, in the structure of the first fifteen chapters of Tractatus theologico–politicus: Chapters 1–2: Prophecy and Prophets. (Followed in Chapters 3–6 by four variables particular to Jewish and Christian revealed religion: election, divine law, ceremonies and histories, and miracles.15) 14

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John E. Wansbrough, ‘Res ipsa loquitur: history and mimesis’, in Raphael Mechoulam and Jacob D. Bekenstein, eds., Albert Einstein Memorial Lectures (Jerusalem: Israel Academy of Sciences and Humanities, 2012), 189–204, at 192–4. Lecture originally given in 1986. I owe this reference to Annabel Brett. I likewise draw inspiration from her remarks on the ‘inside’ and the ‘outside’ in the history of political thought in ‘Between history, politics and law. History of political thought and history of international law’, in Annabel Brett, Megan Donaldson and Martti Koskenniemi, eds., History, Politics, and Law. Thinking through the International (Cambridge, 2021), 19–48, at 20–1. Qualified, in the cases of Chapters 4 (Divine Law) and 6 (Miracles) in particular, by Spinoza’s navigation between what is within Scripture and his own metaphysical commitments, on which Melamed, ‘The metaphysics of the Theological–Political Treatise’.

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Chapters 7–11: Scripture, and the problems raised by the surviving texts in which it is recorded. Chapters 12–15: the Word of God, what it is and how it is to be identified from the Scriptural record. In these chapters, I suggest, Spinoza was reconstructing the components of revealed religion as the prerequisite for understanding sacred history from the ‘inside’. In the following chapters, 16–18, he reviewed the content of sacred history as it is depicted in the ‘narratives’ of the Bible, before drawing political conclusions in Chapters 19 and 20. In adopting this structure, it will be argued, what Spinoza was doing in the Tractatus was demonstrating that in order to draw lessons from sacred history, it must be understood from the ‘inside’, through reconstruction of the terms in which its narratives have come down to us. To make this claim runs the risk of colliding with the conviction of many scholars that Spinoza’s purpose was to ‘expose’ the error of religion, whether by setting philosophy against theology, or by demonstrating the purely human character of the Bible and the history it relates.16 There is no denying that there are problems to be addressed if Spinoza’s accounts of God and divine law in the Tractatus are to be rendered consistent with his philosophical convictions; no denying either that his analysis of the text of the Bible would have made uncomfortable reading for many, and not only for the guardians of Reformed or Catholic orthodoxy. But to maintain that Spinoza set out to explain how revelation should be understood and to identify the distinctive characteristics of sacred history does not, of itself, presuppose that Spinoza was making truth (or error) claims on their behalf: as I present what Spinoza was doing, its truth status can be – perhaps was intended to be – set aside.17 The priority was to address the questions necessary to understanding sacred history in the first place: how, by whom, and in what forms had revelation been conveyed? Where was it recorded and how had that text come down to us? What was the Word of God, and what did it enjoin?

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Classically, Leo Strauss, Spinoza’s Critique of Religion (Chicago and London, 1997). More recently, Jonathan Israel, ‘Introduction’ to his edition and translation (with Michael Silverthorne) of the Theological–Political Treatise (Cambridge, 2007), viii–xxxiv, and Steven Nadler, A Book forged in Hell. Spinoza’s scandalous Treatise and the birth of the secular age (Princeton and Oxford, 2011). Strenuous expressions of this conviction in relation to his Biblical criticism include Richard H. Popkin, ‘Spinoza and Bible scholarship’, in Don Garrett, ed., The Cambridge Companion to Spinoza (Cambridge, 1996), 383–407; J. Samuel Preuss, Spinoza and the irrelevance of Biblical authority (Cambridge, 2001); and Eric Nelson, The Hebrew Republic. Jewish sources and the transformation of European political thought (Cambridge, MA, 2010), 130–4. My purposes are therefore not identical to those of Stefania Tutino in Shadows of Doubt. Language and Truth in post-Reformation Catholic Culture (Oxford, 2014), who shows that a number of seventeenth-century Catholic commentators did discuss the status of truth-claims in both civil and sacred history. But I have drawn inspiration from her reading of post-Reformation historiography ‘by way of Paul Ricoeur’.

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3 Spinoza begins by defining ‘prophecy or revelation’ as ‘the certain knowledge of some matter revealed by God to men’, and a prophet as one who interprets what has been revealed by God for those who cannot have such certain knowledge, but who must receive it by faith alone. In the Hebrew of the Bible, a prophet is always ‘an interpreter of God’.18 As revelation, prophecy is one way of knowing God; the other is through nature. Prophecy is distinct, however, in that what can be said about it must be drawn from Scripture alone, ex sola Scriptura; it cannot be explained in terms other than those within the Bible. If we ‘run through’ the sacred books, we see that revelation occurs through words or signs, and that these may be ‘true’, that is external to the prophet’s imagination, or imaginary, occurring within that imagination. That God may speak to a prophet by a ‘true voice’ (voce vera) is attested in the case of Moses (at Exodus 25:22); in other cases, even that of Samuel (at 1 Samuel 3:21), his voice was imagined.19 Moses was certainly a special case in hearing the voice of God directly. But the scrupulousness with which Spinoza reviewed the instances when God spoke to Moses ‘face to face’ (Deuteronomy 5:4; Exodus 33:11) and again ‘mouth to mouth’ (Numbers 12:8), underlined his point that prophecy as revelation must be understood on the Bible’s terms.20 Other than in the case of Moses, however, prophecy was transmitted through prophets’ imaginations. Spinoza’s observation here was that prophecy requires only imagination; no other means of receiving revelation are mentioned in Scripture, and there is no need to import them. There was no place for reason in prophecy, and we do not know by which laws of nature revelation took place.21 The account of Scripture was sufficient. If only Moses heard a ‘true voice’ of God, the prophets themselves had spoken with their own voices. A great variety of voices was represented in Scripture, as how a prophet spoke depended on his temperament, background, circumstances and audience. Isaiah’s depiction of the glory of God leaving the Temple was that of a courtier; Ezechiel’s by contrast, was that of a countryman. In their very different ways, the prophets thus made revelation adaptable and persuasive.22 What prophets 18

19 20

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References to the Theological–Political Treatise (hereafter TTP) are to the edition by Fokke Akkerman, Tractatus Theologico–Politicus, with a facing French translation, Traité théologico–politique, by Jacqueline Lagrée and Pierre-François Moreau, in Spinoza: Oeuvres, Vol. III (Paris, 1999, 2nd ed. 2012), and to the English translation by Edwin Curley, in The Collected Works of Spinoza Volume II (Princeton and Oxford, 2016), 65–354, although I do not always adopt Curley’s translations of political concepts. References will be in the form of chapter and paragraph number, first to Akkerman as (A), then to Curley as (C), separated by a comma. It is unfortunate that their paragraphing differs. Here, however, TTP, I.1 in both Akkerman and Curley. TTP, I.7–9 (A), I.9–11 (C). TTP, I.11–17 (A), I.14–21 (C). On this theme, Charles Ramond, ‘“De bouche à oreille” et “d’esprit à esprit”: voix extérieures et voix intérieures chez Spinoza et Hobbes’, in Julie Saada, ed., Hobbes, Spinoza ou les politiques de la parole (Paris, 2009), 95–116. TTP, I.20, 27 (A); I.25, 43–5 (C). TTP, II.7–10 (A), II.13–20 (C).

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did not do was seek to make men wiser. They were by no means omniscient themselves, frequently misunderstanding the workings of nature, and showing themselves unaware of the limits of their knowledge. Even their understanding of God reflected their individual preconceptions, and, as the Bible showed, had been influenced by ideas of God held by other peoples with whom they had contact.23 Different again was revelation as brought by Christ. In this case, God must be supposed to have communicated with Christ ‘mind to mind’ – that is, immediately, without words or visions, so that it was Christ who revealed God’s Word. The recipients of his revelation were the Apostles, and it was in their words that it was recorded. As interpreters of revelation they counted as prophets, but they had written their Epistles as preachers and teachers, called to convert all men: a fortiori, therefore, they had adapted what they wrote to their different audiences.24 Plurality of voices was common to both testaments. A prophet not mentioned in the Tractatus theologico—politicus was Mahomet. Although a dismissive remark about the Koran suggests that Spinoza did not count Islam as a revealed religion, it was left unclear whether the account of prophecy might also apply to Mahomet.25 The variety of prophetic voices did not undermine revelation, for it had its own standards of certainty, separate from those of philosophy. Instead of the certainty acquired by demonstrative reasoning, Spinoza argued, prophecy possessed a ‘moral certainty’.26 Specifically, there were three indicators of prophetic certainty: the vividness of a prophet’s imagination, the presence of a sign to confirm the prophet in his prophecy, and the inclination of the prophet towards the right and good.27 The evidence for these attributes varied in each case, but together they were mutually reinforcing. The most awkward was the sign, since this seemed to connect prophecy to miracles, which were impossible on Spinoza’s philosophical account of nature. Spinoza’s discussion of miracles in Chapter VI is remarkable in not obscuring this conviction from the reader; what he also maintains, however, is that miracles are in the eye of the beholder, displacing the sign into the realm of the imagination.28 The third attribute, the prophet’s own rectitude, added the force of example to his message, since, as Spinoza would go on to explain, the heart of revelation, what we 23 24 25

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TTP, II.13–19 (A), II.24–52 (C). TTP, I.18–19, supplemented by the observations at IV.10 and XI.1–6 (A), I.23–4, and IV. 31–2, XI.1–11 (C). Spinoza uses the term ‘Christus’, not Jesus. TTP, V.19 (A)/46 (C). As a contemporary critic, Lambert van Velthuysen, pointed out in a letter of 1671 intended for Spinoza, there was no argument to prove that Mohammed was not a true prophet. Letter to Jacob Ostens [24 Jan. 1671], in Curley, Collected Works of Spinoza, Letter 42, p. 385; quoted in Garrett, ‘Knowing the essence of the state’, 73, note 53. Spinoza’s reply, quoted by Mogens Lærke, Spinoza and the Freedom of Philosophizing (Oxford, 2021), 100, was that Mohammed was not a true prophet, because he denied the freedom which universal religion concedes (Letter 43, p. 389). On the distinction between these certainties, Lærke, Spinoza and the Freedom of Philosophizing, 49–50. TTP, II.3–6 (A), II.4–12 (C). TTP, VI, esp. 1–5 (A), VI.1–13 (C), on miracles as a matter of opinion.

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call the Word of God, was the injunction to piety and obedience, and the practice of justice and charity. But it is the first aptitude of the prophet, the vividness of his imagination, which is crucial to the peculiar certainty of revelation. In separating the imagination from reason, Spinoza was not diminishing its importance. For it was through the imagination that the great majority of people learned to overcome their passions. Most humans live through their imaginations, and revelation has enabled them to do so, by encouraging them to experience the benefits of society. In the specific case of the Hebrews, Spinoza went on to argue, revelation by prophecy had been reinforced by their ‘election’ – in Wansbrough’s terms, the ‘variable’ of election was added to the ‘constant’ of prophecy. Spinoza’s reconstruction of this claim again underlined the need to adhere to what was recorded in Scripture. It was not that the Hebrews had been unique in supposing themselves chosen by their God; the Bible itself provided evidence that their neighbours had assumed the same of their gods.29 Nor had the Hebrews been noticeably grateful for their election: on the contrary, they had remained a ‘stiff-necked’, recalcitrant people.30 But precisely because of this, their election had been highly beneficial to them: against the grain of their recalcitrance, Moses had persuaded them to see themselves as a people (a societas), to accept his laws and the authority (imperium) needed to enforce them, and to adopt the ceremonies he prescribed. By these means he had subdued their passions, persuading them of the utility of society and government and ensuring that they did not obey from fear alone.31 All this, moreover, Moses had recorded in the form of ‘narratives’ (historiae or narrationes), the better to convince the Hebrews ‘by experience’ (experientia). In these narratives, written ad captum plebis, in terms comprehensible by the people, Moses had appealed to the imaginations (not the reason) of the Hebrews, to persuade them from experience that their survival and prosperity depended on their continuing piety and their obedience to authority.32 In other words, Moses, along with the prophets who succeeded him, had presented revelation and the election of the Hebrews in the form of sacred histories. It was a distinctive feature of revealed religion as Spinoza portrayed it that it was recorded in narratives of sacred history.33 29 30 31 32 33

TTP, III.8–9 (A), III.30–39 (C). TTP, III.10 (A), III.41 (C). The reference was to Exodus 34:9; the epithet ‘stiff-necked’ (in the Authorised Version) would subsequently be applied to the Hebrews many times. TTP, III.6, V.1–12 (A), III.16–21, V.1–31 (C). Spinoza underscored the connection between Chapters III and V at the start of Chapter V. TTP, V.14–19 (A), V.35–49 (C). On the role of narrative in moulding the imagination, Susan James, ‘Narrative as the means to freedom: Spinoza on the uses of the imagination’, in Melamed and Rosenthal, eds., Spinoza’s Theological–Political Treatise, 250–67; more generally on the Theological–Political Treatise as a demonstration that the imagination is a viable basis for ‘comparatively if imperfectly harmonious ways of life’, the same author’s Spinoza on Philosophy, Religion, and Politics, 30–2. James’ insights have been formative of the reading of the TTP offered here.

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Spinoza’s insistence that what was revealed by prophecy can only be reconstructed from ‘inside’ Scripture put a high premium on the legibility and reliability of the surviving text of the Bible. Accordingly, it was to this issue that he turned in Chapters VII to XI, where he addressed the second ‘constant’ of revealed religion, its textual record. Spinoza’s chosen method of doing so was to construct a ‘history of Scripture’ in the manner of a natural history (historia naturae).34 What he meant by this analogy – whether it is best understood as a Cartesian or a Baconian conception of natural history – has been much debated by Spinoza scholars.35 It is clear that this was not a history in the sense of a ‘narrative’, the kind of history written by Moses and his successors; instead, the analogy points to a compilation of the evidence relevant to the text’s composition and transmission. Spinoza himself was proud of its originality, invoking the familiar Lucretian trope of a path never yet trodden.36 I want to suggest that what Spinoza was doing here was stepping ‘outside’ of Scripture as the record of prophecy, to review the surviving ‘traces’ of the text, and the problems involved in reconstituting and interpreting them.37 Only once he had conducted this enquiry could he step back ‘inside’ Scripture, to identify and set out the third ‘constant’ of revealed religion, the content of the Word of God, revealed by prophecy, recorded in the sacred text. Spinoza initially divided his ‘history of Scripture’ into three parts. The first would establish the nature and properties of the languages of the Bible; of these, he took ancient Hebrew to have been the most important, since writing in others tended to be ‘hebraized’ (hebraizant tamen). The second would be a compilation of the ‘sentences’ or topics of each book, identifying their meaning through their linguistic usage, not assessing them for their truth. The third, covering most ground, would seek to establish the circumstances by which each of the prophetic books had been preserved. This should include information on their authors, the occasion and audience for which they were written, when and by whom they were accepted as sacred, and whether they had been corrupted with errors in the process of transmission.38 Although the execution of this plan was not as orderly as its initial statement, the issues identified in it would all be discussed in the following chapters. Spinoza was evidently well versed in the problems faced by recent and current textual scholars of the Bible: from the problems raised by Biblical Hebrew and the vowel points,39 to those of authorship, above all the multiplying question marks

34 35

36 37 38 39

TTP, VII.2 (A), VII.6–8 (C). The debate is summarised by Touber, Spinoza and Biblical Philology, 59–71. For a Cartesian reading, James, Spinoza on Philosophy, Religion, and Politics, 144–54; and a Baconian, Preuss, Spinoza and the irrelevance of Biblical authority, 162–8. TTP, VII.18 (A), VII.70 (C). Touber, Spinoza and Biblical Philology, 59, also makes the point that Spinoza’s perspective here is ‘external’. TTP, VII.5 (A), VII.14–25 (C). TTP, VII.11–14, 16 (A), VII.44–57, 64 (C).

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over Moses’ authorship of the Pentateuch.40 Nor did he shy away from the Bible’s inconsistent chronologies.41 Finally, he dealt at length with the vexed questions of the ‘corruption’ of the text by copyists, and the status of the variants noted by the Jewish Masoretic commentators.42 For all the detail with which he was prepared to engage, however, there is no indication that Spinoza’s purpose was to contribute to the scholarly debate (other, perhaps, than incidentally). Instead, what he emphasised in concluding the discussion of the Old Testament was that the problems of the text, however serious, did not invalidate it as the record of prophetic revelation.43 The surviving traces of Scripture were still sufficient for it to serve its sacred purpose. Two features of Spinoza’s treatment of the text in these chapters help to underline this point. The first is Spinoza’s contention in Chapter VIII that the books of the Pentateuch had been written up after the return from the Captivity in Babylon by one historian, Ezra, who had set himself to transcribe the whole history of the Hebrew nation from the beginning to the destruction of the Temple.44 By this Spinoza did not mean that Ezra was the ‘author’ of the Pentateuch and subsequent books. Ezra’s role was clearly distinct from that of the prophets whose ‘voices’ the books conveyed, the voice of Moses in the Pentateuch in particular. Rather, his role was that of transcriber and editor.45 Significantly, Spinoza believed that Ezra had begun by writing up the book of Deuteronomy, as the book containing the law with which Moses had constituted the Hebrews as a nation and a state just prior to the occupation of the lands of Canaan; by implication, this turned Genesis and Exodus into a kind of back-story of the Hebrews’ origins. After completing the rest of the history, Ezra had then inserted Deuteronomy in its present place.46 Thus constructed, Ezra’s Bible was to be read as a composite of narratives, those that survive in the books of the Bible being drawn from others which did not survive.47 As Spinoza then explained in Chapter IX, this layering of narratives provided a perfectly good explanation for the inconsistencies in the Bible’s chronologies: the scribes (scriptores) had simply not taken the trouble to reconcile them.48 It also meant, obviously, that not every detail of the narratives need be supposed to reveal the Word of God. What a proper study (a ‘history’) of Scripture confirmed, however, was the centrality of narrative, conveying revelation through sacred history. 40 41 42 43 44 45 46 47 48

TTP, VIII.3–11 (A), VIII.4–46 (C). TTP, IX.2–12 (A), IX.7–31 (C). TTP, IX.13–21 (A), IX.32–63 (C). TTP, X.9, 16–17 (A), X.19–20, 42–48 (C). TTP, VIII.12 (A), VIII.47–57 (C). The key phrases are that the Pentateuch ‘ab uno solo historico scriptos fuisse’, and that Ezra set himself ‘ad integram historiam Hebraeae nationis describendam’. Spinoza consistently uses the Latin noun ‘scriptor’ (which might be translated ‘scribe’) to characterise Ezra, rather than ‘auctor’, with its creative connotation. For confirmation: TTP, IX.1 (A), IX.1–2 (C). TTP, VIII.12 (A), VIII.56–7 (C). TTP, VIII.5, 7, 10 (A), VIII.21–4, 38, 41 (C). TTP, IX.10–12 (A), IX.26–9 (C).

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A second distinctive feature of Spinoza’s treatment of the Biblical text was its focus on only that text. As historians of Biblical scholarship have noticed – with some perplexity – Spinoza showed no interest at all in one of the most active lines of enquiry in the field: exploration of the Bible’s context in ancient near-Eastern history, and the evidence that several of its central themes may have derived from Egyptian or Chaldean religious practices, or could be compared with those found in Greek and Latin literature.49 Just a year before publication of the Tractatus theologico–­politicus, the Cambridge scholar John Spencer had published his De Urim & Thummin (1669), suggesting that the oracle stones of the Tabernacle were of Egyptian origin.50 But Spinoza was not concerned with such evidence, which might lead to questioning the singularity of Hebrew ceremonial practices. His focus on the Biblical text alone was of course in line with his insistence that an understanding of revelation by prophecy must be reconstructed from ‘inside’ Scripture. But in the case of the text, the limit was on the ‘external’ evidence to be considered if the Bible’s viability as a ‘constant’ of revealed religion was to be assured. Spinoza’s purpose in reconstructing the ‘history’ of Scripture was to assemble its surviving traces and assess their sufficiency, not to set the text in a wider context. Fragmentary and inconsistent as those traces might appear, he concluded, they were sufficient as a record of revelation: within them, therefore, we could expect to identify the ‘Word of God’. The Word of God, a language identified as sacred, is the third of Wansbrough’s ‘constants’ of revealed religion, and the subject to which Spinoza turned immediately on completing his ‘history’ of the text. As he made clear straightaway in Chapter XII, this, like prophecy, must be defined in its own terms, which in the case of the Word of God meant by its purpose. The Word of God, ‘true religion’, is what promotes ‘piety and obedience’, the latter in turn defined as the practice of justice and of charity towards others. Spinoza was at pains to stress that the Word of God is not dependent for its existence on its external trace in the text of Scripture: it exists by revelation, and would continue to exist even were the entire surviving text of Scripture shown to be corrupt.51 Nevertheless, as we have seen, Spinoza’s ‘history of Scripture’ had demonstrated the unlikelihood that it was completely corrupt: even if much within its narratives, and in the Gospels, too, was to be discarded, sufficient evidence of the Word of God remained. What was crucial was to recognise that both the Prophets and the Apostles had deliberately conveyed God’s Word in a language adapted to the understanding of the common people (the vulgus).52 49

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Anthony Grafton, ‘Good company: Spinoza the traditionalist and some unexpected friends’, in Wendy Doniger, Peter Galison and Susan Neiman, eds., What Reason Promises: essays on reason, nature and history (Berlin, 2016), 178–85; but see now Twining, The Limits of Erudition, Chapter 6, Section 3, for an explanation of Spinoza’s exclusive focus. Touber, Spinoza and Biblical Philology, 63, also sees the point. John Spencer, Dissertatio de Urim & Thummin: in Deuteron. C. 33 v. 8 (Cambridge, 1669) – a work which, Touber shows, Spinoza and Biblical Philology, 141–5, provoked as much or more controversy in the United Provinces as the Tractatus theologico–politicus. TTP, XII.1–6 (A), XII.1–17 (C). TTP, XII.7–12, XIII.1–9 (A), XII.18–40, XIII.1–29 (C).

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If the purpose of Scripture is only to teach obedience, it followed that obedience defines faith and earns salvation. Here Spinoza drew together the threads of the Jewish and the Christian Bibles, citing in particular the Epistles of James and John, to posit that only one who is truly obedient has true and saving faith.53 With piety and obedience as their object, the ‘doctrines of universal faith, or fundamental principles aimed at by the whole of Scripture’ (fidei universalis dogmata sive universae Scripturae intenti fundamentalia enumerare) have nothing to do with philosophy, whose only object is truth; their foundations are in the narratives and the word (historiae et lingua) drawn from Scripture and revelation alone (ex sola Scriptura et revelatione petenda).54 Concluding his argument that faith and philosophy are quite different, Spinoza urged his readers to pay particular attention to these two chapters (XIII and XIV), since they were the most important part of his treatise.55 It was from the narratives of Moses and his successors, reminding the Hebrews of the covenant they had made with God and of their subsequent struggles and ultimate failure to maintain it, and also from the Apostles’ accounts of their efforts to preach and teach the message of Christ, that the lesson of obedience, to practise justice and charity, was to be learned. By appealing to the imagination, the narratives of sacred history taught the obedience which it was the purpose of revealed religion to instil, in a form accessible to everyone.

4 At this point, Spinoza’s enquiry turns to consider the implications of his account of Scripture as narratives of sacred history and record of the Word of God for understanding the formation of society and the instituting of authority, first in principle and then in the case of the Hebrew Commonwealth in particular. In the terms adopted here, he shifts focus from revealed religion understood from the ‘inside’, supported by the ‘external’ evidences of Scripture’s textual history, to the subject which Scripture’s narratives purport to reconstruct, the history of the ancient Hebrews. 53 54

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TTP, XIV.1–8 (A), XIV.1–21 (C). TTP, XIV.10, 13 (A), XIV.24, 37 (C). In his recent, powerful interpretation of the TTP, Mogens Lærke has represented the ‘doctrines of universal faith’ in terms which make only incidental reference to the doctrines’ status as the Word of God. This allows them to be treated as one ‘foundation’ (the other being the contract) of a more general account of the conditions of the liberty of philosophizing, one derived from the Bible, but not dependent on the Bible’s status as the sacred record of the revealed Word: Lærke, Spinoza and the Freedom of Philosophizing, esp. 167–92. While my interpretation of the doctrines of universal faith is compatible with Lærke’s analysis of their importance for freedom of philosophizing, it suggests that their derivation from the Bible entails a more explicitly Jewish–Christian interpretation of their character than Lærke wishes to acknowledge. TTP, XIV.14 (A), XIV.40 (C). The emphasis on the importance of these two chapters would seem to render Chapter XV an appendix, where Spinoza further clarifies the distinction between theology and philosophy and the authority of Scripture.

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Spinoza begins, in Chapter XVI, with an exposition of his understanding of the key terms used by the jurists to explain and justify the formation of society and authority: state of nature, natural and civil right, and the covenant which institutes civil authority and endows it with sovereign power. But despite initial appearances, this recourse to jural abstractions is not divorced from the preceding analysis of revealed religion. For if the history recorded in the Bible is not yet involved, time is. A crucial element of sequencing is introduced when Spinoza observes, towards the end of the chapter, that the state of nature is ‘prior to religion, in nature and in time’.56 It is clear from the context that the ‘religion’ which comes after the state of nature is revealed religion. There is no mention of and no role for natural religion. There may be superstition in the state of nature – the fear of uncertainty in the future which men project onto imagined deities, the subject of the opening paragraphs of the ‘Preface’ to the Tractatus57 – but its presence remains implicit. As Spinoza has already made clear in Chapter IV, men also naturally possess reason and are capable of love of God from desire for the supreme good, and hence of understanding and following natural divine law without needing to believe in histories.58 But such a reasoned, philosophical understanding of God in nature takes time to acquire. It was certainly not possessed by the first man in Scripture, Adam. Ignorant of God’s omniscience and omnipresence, Adam had imagined he could hide from God and excuse his failing to follow the command not to eat from the tree of knowledge of good and evil. Accordingly God had addressed him in words appropriate to his limited understanding, to reveal to him the benefits of obedience and penalties of disobedience.59 So it was by revelation that men had learned obedience, and in doing so had appreciated the benefits which follow from forming society. Where authority based on superstitious fear alone would require to be constantly enforced, revealed religion had provided the means to rule by moral persuasion, as the Word of God fostered obedience through the practice of justice and charity. On Spinoza’s reading of the history narrated in the books of Exodus and Deuteronomy, the formation of the Hebrew commonwealth could be mapped quite directly onto the principles set out in Chapter XVI. Having freed themselves from the rule of the Egyptians by the Exodus, the Hebrews had found themselves once more in a state of nature (in hoc statu naturali) in Sinai. Guided by revelation, conveyed to them by prophecy by Moses, the Hebrews had entered into two covenants in succession: the first directly with God, the second with Moses himself.60 56

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TTP, XVI.19 (A), XVI.53 (C): ‘nam is et natura et tempore prior est religione.’ The invocation of time corroborates Lærke’s argument that the account of the contract in Chapter XVI is another narrative: Spinoza and the Freedom of Philosophizing, 207–14. TTP, Praefatio 1–5 (A), 1–8 (C). TTP, IV.1–8 (A); IV.1–25 (C). On this passage, Donald Rutherford, ‘Spinoza’s conception of law: metaphysics and ethics’, in Melamed and Rosenthal, eds., Spinoza’s Theological–Political Treatise, 143–67. TTP, II.14, IV.9, 11 (A), II.32, IV.26–7, 38–9 (C). TTP, XVII.7–8 (A), XVII.26–7 (C).

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These covenants covered what Spinoza had already made clear, when discussing the election and the ceremonies of the Hebrews, was a two-part process: first, a coming together of individuals to form society (societas); second, the institution and acceptance of an authority (imperium) which would hold in check the natural tendency of individuals to seek advantage over each other.61 In facilitating the covenants and the resulting institution of imperium, Moses had acted as both prophet and legislator: as the latter, he had prescribed the laws, customs and ceremonies which the Hebrews were to follow. Responsible for both the interpretation and the execution of revealed divine law, he had exercised supremam majestatem, or something like sovereign power.62 But Spinoza was also particular in emphasising that Moses had not passed on such an undivided authority to his successors. Instead the right of interpreting the law had been allocated to Aaron and his successors, the Levites or tribe of priests, while that of administering it, and exercising imperium according to the law, had fallen to Joshua and his successors the Judges, along with command of the army.63 Spinoza did not underplay the difficulties arising from such divided authority; the antidote, however, had been the unifying bonds of custom and ceremony prescribed especially for the Hebrews by Moses. It was the piety and obedience these encouraged, not undivided sovereign power, which had held the Hebrew Commonwealth together for as long as it lasted, until the destruction of the Temple and the Babylonian exile. Spinoza was clear that the respublica of sacred history was not a model to be imitated wholesale: the Hebrew Commonwealth had been neither stable nor enduring. The Hebrews had combined piety with an extreme hatred of other peoples, a hatred inspired by their fear of becoming subject to others’ idolatry, and of what their prophets had portrayed as a ‘wrathful’ God, liable to exact revenge on a ‘contumacious’, stiff-necked people.64 (Of course on Spinoza’s philosophical understanding, God could not be wrathful, any more than God could speak. But again, what is at stake here is the God of the Jewish and Christian revelation – of sacred history.) Nevertheless, their ceremonies had brought the Hebrews long periods of temporal prosperity, at least until the voluntary replacement of the Judges by kings. Among the ceremonies singled out by Spinoza for promoting piety and obedience were the regular public readings of the law and the ‘Jubilee’, when land which a family had had to sell would be restored, guaranteeing a security of property greater than among any other people.65 The real problem, in any case, was not the stubbornness 61 62

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TTP, III.5–6, V.6–12 (A), III.12–21, V.17–31 (C). TTP, XVII.9–10 (A), XVII.33–41 (C). Curley translates ‘supremum majestatem’ literally, as ‘supreme majesty’; the French translation offers ‘la majesté souveraine’. In the case of ‘imperium’, I prefer the simpler translation ‘authority’, and have avoided ‘state’, as in danger of over-interpreting Spinoza’s usage. TTP, XVII.11–15 (A), XVII.42–57 (C). TTP, XVII.23, 26 (A), XVII.76–8, 93–9 (C). TTP, V.1–3 (A), V.1–6 (C) (on the temporal prosperity brought by the Hebrews’ ceremonies), XVII. 17, 25 (A), XVII 64, 84–5 (C) (on public reading of the Law and the security of property by the Jubilee).

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of the Hebrews, which Spinoza believed no more characteristic of the Hebrews than of other nations, but the pretensions and privileges of the Levites, which had provoked the people to bouts of idolatry, and eventually to demand a king. In turn the kings had contested the Levites’ right to interpret the law, while feuding with the prophets whom the Levites sought to turn in their favour. Before long the kings had degenerated into tyrants, and the Hebrew Commonwealth collapsed in the face of its Babylonian conquerors.66 Spinoza was reluctant to concede that the regime which followed the return from exile, in the period of the Second Temple, still counted as the Hebrew Commonwealth. For the supreme authority (summum imperium) was now held by the priests alone, to the detriment of both religion and obedience. The priests had divided into sects (the Pharisees and Sadducees) whose differences over theology were fortified by the intrusion of borrowings from ancient philosophies. This was not only a cause of internal strife, it undermined the practices which fostered piety and obedience among the people. It became clear that in the face of a powerful, independent priesthood, the sovereign power (summa potestas) must lie with the civil authority alone.67 By the end of Chapter XVIII Spinoza was looking beyond Jewish history to Rome and to the recent history of the United Provinces, to reach the political conclusions he spelt out with full force in the final two chapters of the Tractatus.68 Only the civil power could ensure that religion fulfilled its purpose of promoting works of justice and charity, while preventing the clergy from appealing to theology to control philosophy. Ultimately the freedom to philosophise might have the potential to bring everyone to a philosophical and as such true understanding of God. For the foreseeable future, however, the principal lesson of sacred history stood: what revelation enjoined as the Word of God was piety and obedience as the basis of social and political order.69

5 While it was Spinoza who most explicitly asked how sacred history should be understood and interpreted, Hobbes too had addressed the question. A comparison with aspects of Hobbes’ treatment may sharpen our appreciation of Spinoza’s. Here I limit myself to three points of comparison. The first relates to prophecy and the workings of the prophetic imagination. Like Spinoza, Hobbes emphasised the imaginative rather than the rational character of prophecy  – but Hobbes found it less easy to take the prophetic imagination seriously. As he notoriously remarked at the outset of his treatment ‘Of a Christian Commonwealth’ in Leviathan, for anyone 66 67 68 69

TTP, XVII.26–30 (A), XVII.93–114 (C). TTP, XVIII.1–8 (A), XVIII.1–32 (C). Conclusions obviously open to the various contextual interpretations referenced in notes 11 and 12 in this chapter. TTP, XVIII.9–10 (A), XVIII.35–7 (C), and Chapters XIX, XX (in A and C).

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to say that God had spoken to him in a dream, ‘is no more then to say he dreamed that God spake to him’.70 Although Hobbes, like Spinoza, offered ‘marks’ by which a true prophet might be identified, he was notably more exercised than Spinoza by the proliferation of false prophets in the books of the Old Testament.71 Underlying this scepticism towards a crucial ‘constant’ of revealed religion was Hobbes’ more general scepticism about the ability of the imagination to overcome humans’ natural diffidence of each other: if anything, the imagination exacerbated their tendency to compete over their preservation, making acceptance of the dictates of reason critical to the achievement of peace.72 By contrast, we can see that Spinoza’s more positive sense of the imagination’s potential in enabling humans to live with their passions not only enabled him to give a coherent account of prophecy as the medium of revelation. It also enabled him to recognise in the narratives of sacred history a persuasive appeal to the imaginations of a people, fostering piety and obedience, justice and charity, and thereby securing their acceptance of the authority necessary to a commonwealth. A second contrast complements the first. For Hobbes, the overriding purpose of an analysis of the history related in both the Old and the New Testaments was to establish the necessary supremacy of the civil authority over the priests of the Temple and the nascent Christian Church. First in De cive and then in Leviathan, this was evident in his analysis of the authority of Moses, and of the subsequent regimes of the Judges and the kings. In Leviathan it also informed his account of the subordination of the Church to the emperor, and subsequently of the Church to every state possessing sovereign power, Christian and non-Christian.73 For all the clarity of Hobbes’ purpose, however, the evidence of sacred history did not always yield to it. Repeatedly he encountered the recalcitrance of the Hebrews, whether in the limitations on the authority of Moses in relation to the power to punish, or in the subsequent breakdown of the rule of the Judges, culminating in a situation in which ‘every man did that which was right in his own eyes’ – the antithesis of stable sovereign rule. The problem of Moses’ right to punish in particular was still exercising Hobbes in the ‘Review and Conclusion’ of Leviathan.74 Although 70

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Thomas Hobbes, Leviathan, in the edition by Noel Malcolm, 3 vols. (Oxford, 2012), vol. 3: The English and Latin Texts (ii), Chapter 32, p. 580. Hobbes’ discussion of prophecy shows none of Spinoza’s familiarity with the interpretations of it by Maimonides and his critics – another limit to his Hebraic sympathies. Hobbes, Leviathan, vol. 3, Chapter 32, pp. 580–2; also Chapter 36, esp. pp. 674–80. On Hobbes’ problems with the Old Testament prophets, Ribarević, ‘Political Hebraism in Leviathan’, 180–1, 185–6. Hobbes, Leviathan, vol. 2: The English and Latin Texts (i), Chapters 2–3, 11, 13. Thomas Hobbes, De cive. The Latin Version, ed. Howard Warrender (Oxford, 1983), translation as On the citizen by Richard Tuck and Michael Silverthorne (Cambridge, 1998), Chapters 16–17; Leviathan, vol. 2, Chapter 16, vol. 3, Chapters 40, 42. Commentary by: Jean Terrel, ‘Le royaume mosaïque selon De Cive, le Léviathan, et le Traité théologico–politique’, in Saada, ed., Hobbes, Spinoza, 135–64; Ribarević, ‘Political Hebraism in Leviathan’; and McQueen, ‘Mosaic Leviathan’. Hobbes, De cive, Chapter 16, para. xv; Leviathan, vol. 3, Chapter 40, pp. 740–8. The quotation, at 748, was taken by Hobbes direct from Judges 21:25; ‘A review, and conclusion’, pp. 1136–8.

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Spinoza, too, could be perplexed by aspects of the Hebrews’ behaviour, he never expressed  quite such frustration. But he did not need to, since of course he did not rely on the existence of legitimate sovereign authority alone to secure obedience. What the narratives of sacred history demonstrated in Spinoza’s hands was the suasive power of revealed religion in promoting the piety and obedience conducive to the acceptance of authority. Along with the laws, it was the morals, the mores,75 of the Hebrews which had secured their temporal prosperity, by demonstrating the rewards of obedience to authority rather than relying simply on fear of the consequences of disputing it. A more complex pattern of difference, yielding ultimately to common ground, is apparent in the third and final contrast to be considered here. This concerns what I have called the ‘sequencing’ of revelation, and in particular its projected outcome. In Hobbes’ thinking, natural religion precedes revealed in the order of analysis, only to yield to revealed religion in history. Humans’ natural propensity to religion is explained by our fear of the future, and in particular of the future after death, about which reason cannot provide reassurance.76 But Christianity (the only revealed religion Hobbes considers) offers to overcome natural religious fear, by providing for the future after death through its promise of Christ’s return and resurrection of the saved.77 Even if natural religion continues to exist as a propensity, therefore, it has been overtaken and even subsumed by revealed religion, which exists in time and history, with a past and a present in God’s prophetic kingdom, and a future in Christ’s kingdom.78 The problem facing Hobbes, however, was that the timing of Christ’s return to end the prophetic kingdom and inaugurate his own by resurrecting the dead was unknown and unknowable. As a result, the members of Hobbes’ Christian Commonwealth were faced with an uncertain, constantly receding future. Into it had stepped first the papal monarchy, followed, as that unravelled, by the reformed churches and finally by the enthusiasts who believed themselves directly inspired by God and were only too keen to anticipate the second coming. Faced with such uncertainty, and the attempts of clergy and sects to exploit it, Hobbes doubled down on the authority of the civil sovereign, as bearing the person of the Church in his own kingdom or commonwealth, and therefore alone empowered to determine the content and meaning of Scripture, the constitution of the

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Although not regularly used in the Treatise, the term ‘mores’ was used by Spinoza of his own intentions in writing the Treatise: TTP, Praefatio.16 (A), 35 (C); again, more substantively, at XVII.26 (A) and XVII.93–4 (C), translating mores as customs. Hobbes, Leviathan, vol. 2, Chapter 12 ‘Of Religion’, pp. 164–86. Tuck, ‘The civil religion of Hobbes’, 131–2; Mortimer, ‘Christianity and civil religion’, 506–9. Hobbes, Leviathan, vol. 2, Chapter 31 ‘Of the Kingdom of God by Nature’, p. 556, for the distinction between God’s kingdoms by nature, ‘wherein he governeth as many of Mankind as acknowledge his Providence’, and prophetic, ‘wherein having chosen out one peculiar Nation (the Jewes) for his subjects, he governed them’. In the Latin version, ‘and afterwards Christians’ is inserted after ‘Jewes’. The crucial change of tense was pointed out by Pocock, ‘Time, history and eschatology’, 159.

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Church, and the latitude (if any) of permitted discussion of doctrine.79 Confronted by the unknowability of future sacred time, in short, Hobbes would have his sovereign suppress it.80 For Spinoza, as we have seen, the natural condition of man was explicitly prior to revealed religion in time as well as by nature. But while nature might carry the potential for a rational love of God, revelation had remedied the deficiency of the first man’s understanding almost immediately, and had continued to substitute for the attainment of a natural religious understanding of God, which even now was accessible only to a few. Indeed, on Spinoza’s sequencing, revealed religion had already fulfilled its goal of making salvation available to all men, through Christ’s first incarnation, when he revealed the universal significance of the divine law which Moses had prescribed to the Hebrews alone. As Christ’s words were recorded and taught by the Apostles, they had brought the lesson of piety and obedience, of salvation through the practice of justice and charity, to all, to the gentiles as well as the Jews.81 Spinoza more than once acknowledged that the Apostles had reported Christ as teaching values of self-sacrifice and self-denial which might be incompatible with the public good; but these were instances of matter recorded in Scripture which was superfluous or even contradictory to the Word of God.82 For Spinoza, to have saving faith was simply to practise the virtues of piety and obedience. There was no need therefore to wait for Christ’s second coming. This had not stopped the clergy of all churches from continuing to pretend the contrary, in the meantime exercising authority in his name. The consequences were doubly pernicious: not only did they foment division and disobedience, they also actively frustrated the philosophical ambitions of those who would seek a true understanding of God in nature. For this, Spinoza agreed with Hobbes, the sovereign authority of the civil magistrate was the only effective antidote.83

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Hobbes, Leviathan, vol. 3, Chapter 33, pp. 604–8, Chapter 39, pp. 730–4, Chapter 42, pp. 850–926, including the refutation of Bellarmine. On this last, Patricia Springborg, ‘Thomas Hobbes and Cardinal Bellarmine: Leviathan and “The ghost of the Roman Empire”’, History of Political Thought, 16 (1995), 503–31. See Chapter 6 in this volume, Quentin Skinner, ‘Hobbes on the Theology and Politics of Time’, above pp. 139–43. On Lærke’s account, Spinoza and the Freedom of Philosophizing, 171–2, 176–7, the Christian content of the doctrines of universal faith remains abstract, and the doctrines might be rendered in different terms, to which Muslims and Jews (and those of other faiths) could then adhere. Understood as they are here, however, as the Word of God, the doctrines are still the product of the Christian revelation, and as such, intended for all. TTP, VII.7, XIX.10 (A), VII.31–2, XIX.22–3 (C). A better example was the self-sacrifice of Manlius Torquatus, who had put the public safety before the life of his son. As Sarah Mortimer has pointed out to me, this may be seen as Spinoza’s response to Grotius and the Socinians, who attributed to Christ a new and different moral law. A convergence quite possibly facilitated by the availability to Spinoza of translations of Leviathan, into Dutch, by Abraham van Berkel (1667), and Latin, by Hobbes himself (1668), as well as by Lambert van Velthuysen’s earlier Apologia pro De cive (1651).

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6 The momentum given by Spinoza and Hobbes to engagement with sacred history by no means disappeared in the first half of the eighteenth century. Perhaps the most ambitious exponent of sacred history in Spinoza’s mould would be the Neapolitan jurist and historian Pietro Giannone (1676–1748). In 1731, in exile from Naples and in flight from the Holy Office, Giannone began drafting the ‘Triregno’, a study of the successive earthly, heavenly and papal kingdoms of sacred and ecclesiastical history. Three features of the ‘Triregno’ mark its continuity with Spinoza’s Tractatus theologico–politicus. The first was its commitment to understanding sacred history from within the Scriptural record, while acknowledging the limitations of that record’s surviving textual traces. Here Giannone avowed his debt to ‘the system of Richard Simon’, whose Histoire critique du Vieux Testament (1678) had been published shortly after Spinoza’s death.84 Second, Giannone followed Spinoza in treating the Hebrew commonwealth of the Old Testament as an ‘earthly kingdom’, in which the benefits of revealed religion were measured by the Hebrews’ survival and temporal prosperity. Understood thus, sacred history became a history of the formation of ‘civil society’ itself, in which the language and customs of the people were as important as their forms of government.85 Third, Giannone would demonstrate from within sacred history why the claims now made in Christ’s name by the Church – in his case the Church of Rome – should be repudiated. For Giannone, the problem was not  – as it was for Hobbes – the uncertainty generated by the impossibility of knowing when Christ would return; rather, it was Christ’s failure to honour his promise to his earliest followers of an imminent return. This had left a vacuum to be filled by the Church, whose rulers, the popes, had all too quickly set about building a new earthly kingdom for themselves.86 Despite the circulation of manuscript copies, the vigilance of the Holy Office ensured that the ‘Triregno’ remained unpublished in the eighteenth century. But its argument that the most pressing problem facing Christians was the supplanting of the sacred by the ecclesiastical was already present in the work which had got Giannone into trouble in the first place, his Istoria civile del regno di Napoli, published in Naples in 1723, and translated into English (1729–1731) and French (1742).87 Its reputation enhanced by the fate of its author, seized and imprisoned in Savoy for the last twelve years of his life, the Istoria civile would serve as a marker to the 84 85

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Pietro Giannone, Il Triregno, edited from a Neapolitan manuscript of 1783 by Alfredo Parente, 3 vols. (Bari, 1940), I, ‘Introduzione’, 16. Giannone, Triregno, I Del regno terreno; for the observation that this history amounted to the beginnings of ‘civil society’, Giannone’s autobiography, Vita scritta da lui medesimo, ed. Sergio Bertelli (Milan, 1960), 183. Giannone, Triregno, II Il regno celeste, III Il regno papale. Pietro Giannone, Dell’Istoria civile del regno di Napoli, 4 vols. (Naples, 1723), English translation as The Civil History of the Kingdom of Naples, 2 vols. (London, 1729, 1731); French as L’Histoire civile du royaume de Naples, 4 vols. (Geneva, 1742).

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Enlightenment of the continuing importance of ecclesiastical history. The political problem was that identified by Rousseau, explicitly referring back to Hobbes, in the penultimate chapter of Du contrat social (1762).88 Rousseau might previously have dismissed the evidence of sacred history for the earliest, natural condition of man, but he remained acutely aware that the independence of the Church was a threat to every attempted solution to the problem of legitimating civil authority, including his own. The historiographic culmination of this line of enquiry was of course Edward Gibbon’s Decline and Fall of the Roman Empire (1776–1788), in which ecclesiastical history was at the heart of what Gibbon meant when he described his subject as ‘the triumph of barbarism and religion’.89 If the legacy of the seventeenth-century recourse to sacred history lay only in Enlightenment engagement with ecclesiastical history, however, a crucial dimension of Spinoza and Giannone’s enquiry would seem to have been lost: the history of the Hebrews as evidence of the earliest formation of human society. The problem of Enlightenment repudiation of sacred history in this form remains. What happened, I suggest, was that the Hebrews were displaced in favour of the gentiles. Several developments across the seventeenth century converged to make this shift of focus possible and attractive. One was the growth of scholarly interest in ‘idolatry’  – in the comparative study of ancient pagan religious practices in both the Classical and the Biblical worlds. Complementing this was a second, deriving from the missionary enterprise to convert the all-too-numerous ‘idolaters’ whom Europeans ‘discovered’ as they extended their commercial and military power around the world. As many missionaries, especially the Jesuits, came to realise and report, it was far better to treat these peoples as gentiles whose religious practices made them suitable for conversion to Christianity than to condemn their idolatry as diabolic. What gave these developments wider intellectual traction, however, was the gauntlet thrown down by Pierre Bayle, when he suggested in his Pensées diverses sur la comète (1680) that idolatry was no better than atheism, and quite possibly less conducive to society. It was as an answer to Bayle from within sacred history that Lafitau framed his Moeurs des sauvages ameriquains (1724), with its extended advocacy of the hypothesis that the religious practices of indigenous Americans were derived from those of the first Patriarchs. But much the most imaginative response to Bayle’s challenge was a work first published a year later, Giambattista Vico’s Scienza nuova intorno alla natura delle nazioni (1725, with revised versions in 1730 and 1744). Vico grounded his ‘new science’ explicitly ‘within sacred history’, adopting the chronology of the 88 89

Jean-Jacques Rousseau, Du contrat social, Bk IV, Chapter 8 ‘De la religion civile’, in the Pléiade edition cited in note 1, 460–9. Edward Gibbon, The History of the Decline and Fall of the Roman Empire, 6 vols. (1776–1788), in the three-volume edition by David Womersley (London, 1994). On Gibbon’s ecclesiastical history, the transformative analysis by John G. A. Pocock, Barbarism and Religion, 6 vols. (Cambridge, 1999–2015), esp. V Religion: the first triumph (2010), and VI Barbarism: Triumph in the West (2015).

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Vulgate as his framework. But in the Flood of 1656 years after Creation he saw an opportunity: to switch focus from the Hebrew to the gentile descendants of Noah, and thence to re-imagine the earliest history of gentile society as the outcome of idolatry.90 It was a move which not only rescued the sociability of idolatry from Bayle; it also made it possible for sacred history to embrace gentile history, without sacrificing the far greater diversity, and hence interest, of gentile social, religious and mythological experience. Vico, of course, was unread by Voltaire or Robertson – or Rousseau. It is not difficult to see why Robertson should have been so dismissive of Lafitau’s longwinded attempt to place American ‘savages’ within sacred history, even as he mined Lafitau’s research for his own History of America. Had he encountered and engaged with the work of Vico, he might  – one cannot be sure  – have done better. As it was, the opportunity to reconstruct the religious practices of gentile societies in the more generous terms envisaged by Vico was unrecognised, and religion was side-lined within Scottish stadial history. Ironically, it was historians working in a field which Vico had excluded from his ‘new science’, the history of nature, who made it possible to recover Vico’s insights, by investigating gentile religious practices as responses to natural catastrophes. The outcomes of these enquiries may seem remote from sacred history as Spinoza had sought to understand it; but the lines of discourse that run through the eighteenth century to the works on religion, society and government of Nicolas-Antoine Boulanger, Francesco Mario Pagano and Benjamin Constant are there to be traced. 90

The First (1725) and the Third (1744) editions of the Scienza nuova are included in Giambattista Vico Opere, ed. by Andrea Battistini, (Milan, 1990). Translated as Vico: the First New Science by Leon Pompa (Cambridge, 2002), and The New Science of Giambattista Vico: unabridged translation of the Third Edition, by T. G. Bergin and M. H. Fisch, (Ithaca, NY, 1968).

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8 Law, Chronology, and Scottish Conjectural History Aaron Garrett

INTRODUCTION

This chapter will consider the origins of Scottish Enlightenment conjectural history in the writings of Henry Home, Lord Kames. I will argue that the rise of what is often referred to as the Scottish ‘conjectural’ approach to history was driven by a problem in the relation between the history of positive law and natural law and that Kames’ solution in his writings from the early 1730s to the late 1750s gradually took the form of stadial history. The aspects of the Scottish version of stadial history I will highlight were not due to Kames alone. Kames drew on David Hume’s arguments in his conjectures and the two shared goals up to and beyond Hume’s Natural History of Religion.1 Furthermore Hume’s discussion of time in A Treatise of Human Nature was crucial for how both thought about history and for the development of stadial history. I will not suggest though that from the writings of Kames and Hume stadial history arose in its final form. There was of course also the influence of Montesquieu, with whom Hume corresponded, and who was central for other Scottish philosophers associated with stadial history – Adam Smith, Adam Ferguson and John Millar. But I will resist seeing Scottish stadial history as just Montesquieueanism in plaid. The influence is clear, in particular on the four stages theory,2 but I will suggest that the form that 1

2

Hume and Kames might seem an unlikely pair because the Historical Law-Tracts is today probably best known as the object of Hume’s quip that ‘A man might as well think of making a fine sauce by a mixture of wormwood and aloes, as an agreeable composition by joining metaphysics and Scottish Law’. But Hume continues ‘However, the book, I believe, has merit; though few people will take the pains of enquiring into it.’ In The Letters of David Hume, ed. J. Y. T. Greig, 2 vols. (Oxford, 1932), vol. 1, p. 304: Letter 165. Kames’ contemporaries did inquire. The book went through four editions: I. S. Ross, Lord Kames and the Scotland of His Day (Oxford, 1972), 202. Astonishingly, it is not mentioned in the Oxford Dictionary of National Biography article on Kames. The first work in which the four familiar stages appear was John Dalrymple, An Essay Towards a General History of Feudal Property in Great Britain (London, 1757), 86–89. This was dedicated to Kames, who Dalrymple named as having directed the work and having given him access to his papers, which probably included drafts of the Historical Law-Tracts. In the dedication (ii–iv), Dalrymple also referred to Montesquieu as the ‘greatest genius of our age’ and claimed that Montesquieu had himself

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stadial history took in Kames – which was influential on Millar and Smith – was part of a course particular to Kames that was set before he would have been influenced by Montesquieu. Many of Hume’s most important contributions were also written prior to the publication of De L’Esprit des Lois in 1748. More strongly, the historical picture shared by Kames and Hume was different, and in some ways more philosophically radical, than that of the stadial historians who followed them and who synthesized their work with Montesquieu. To get at this I will compare Kames and Hume with another far more obscure Scottish author – Adam Anderson – whose difference of approach is instructive. In conclusion I will use the comparison between Hume and Kames on the one side and Anderson on the other to motivate some thoughts about historical time – in particular the way in which Hume’s understanding of time allows for a distinction between the sort of chronology Anderson pursued and a different more flexible approach to historical time which had as one possible extension Hume and Kames’ polygenism – and the rise of stadial history. CONJECTURAL HISTORY

As I have just suggested, the string of books by Kames, the first of which appeared six years before A Treatise and the last of which – Historical Law-Tracts – was published the year after Natural History of Religion, are of signal importance for Scottish conjectural history. Since I am discussing conjectural history, I will begin with the well-known definition of conjectural history by Dugald Stewart in his ‘Account of the Life of Adam Smith’: Whence … the different forms which civilized society has assumed in different ages of the world? On most of these subjects very little information is to be expected from history. … A few insulated facts may perhaps be collected from the casual observations of travellers, who have viewed the arrangements of rude nations; but nothing, it is evident, can be obtained in this way, which approaches to a regular and connected detail of human improvement. … In such inquiries, the detached facts which travels and voyages afford us, may frequently serve as land-marks to our speculations; and sometimes our conclusions a priori, may tend to confirm the credibility of facts, which, on a superficial view, appeared to be doubtful or incredible.3

On Stewart’s definition, conjectural history is a means by which to access ‘the different forms which civilized society has assumed in different ages of the world’ via a

3

revised Dalrymple’s work. For excellent discussions see James Moore, ‘Montesquieu and the Scottish Enlightenment’, in Rebecca Kingston, ed., Montesquieu and His Legacy (Albany, NY, 2009), 179–97 and Ross, Lord Kames, 60. ‘Account of the Life and Writings of Adam Smith, LL.D.’, in Adam Smith, Essays on Philosophical Subjects, ed. W. P. D. Wightman, J. C. Bryce and I. S. Ross, (Oxford, 1980), 292–3.

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priori speculation when the paucity of empirical evidence only allows it to function as ‘land-marks to our speculations’. The model for this is Adam Smith’s ‘Considerations Concerning the First Formation of Languages’ which uses a priori speculation to plumb areas which no reports can reach. Smith’s essay was written after Rousseau’s Second Discourse which it cites, and thus against a very different background than works written before. Stewart’s definition is a rough paraphrase of a passage from Kames’ Historical Law-Tracts: In tracing the history of law through the dark ages unprovided with records, or so slenderly provided, as not to afford any regular historical chain, we must endeavour, the best way we can, to supply the broken links, by hints from poets and historians, by collateral facts, and by cautious conjectures drawn from the nature of the government, of the people, and of the times. If we use all the light that is afforded, and if the conjectural facts correspond with the few facts that are distinctly vouched, and join all in one regular chain, nothing further can be expected from human endeavours. The evidence is compleat, so far at least as to afford conviction, if it be the best of the kind.4

Unlike Stewart though, Kames has neither thought experiments nor Smith in mind, but instead the problem of how to connect together evidence into a ‘regular historical chain’ when there are profound gaps in evidence or insufficient evidence or the wrong kind of evidence. Consequently, unlike the type of conjectural history which Stewart describes, Kames mixes empirical and a priori resources to argue that a spotty testimonial record can be forged into a historical chain. The use of supporting information that provides context and interpretation for historical evidence lacking context – ‘cautious conjectures drawn from the nature of the government, of the people, and of the times’ – is a particularly important tool which one can see as a precursor of the role of stages in a stadial theory.5 Kames was not alone in his interest in the epistemic limits of credible historical testimony. In ‘Of the Populousness of Ancient Nations’ Hume pronounced that ‘The first page of Thucydides is, in my opinion, the commencement of real history. All preceding narrations are so intermixed with fable, that philosophers ought to abandon them, in a great measure, to the embellishment of poets and orators’.6 Robertson’s History of Scotland and Hume’s History of England both drew bright lines between British folk myths and Roman historical testimony and used the latter for proper history. Kames had a similar concern, but 4 5

6

Henry Home (Lord Kames), Historical Law-Tracts, 2 vols. (Edinburgh, 1758), 36. In this sense, stages have affinities with Spinoza’s use of what he takes to be well-founded suppositions about the psychology of the Hebrew tribes in the Tractatus Theologico–Politicus as a means to challenge and replace questionable testimony with something firmer. David Hume, Essays, Moral, Political, and Literary, ed. Eugene F. Miller, revised edition, (Indianapolis, 1987), 422.

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rather than cordoning off testimony which was not credible, he sought to fill in gaps in credible testimony on the basis of other sorts of evidence (psychological, political, etc.). This epistemic focus of Scottish conjectural history distinguishes it from stadial theories such as those found in the pioneering fourteenth-century Arab-Andalusian historian Ibn Khaldun’s Muqaddimah. In that work Khaldun argued for a series of connected stages (nomads, farmers, etc.) through which human history cycles. Khaldun offered empirical arguments for natural cycles from flourishing to decay, but the cycles themselves were ultimately rooted in assumptions about the metaphysical cycles of nature as such, assumptions which went back to those of Aristotle and Plato. There was little discussion of the theory of knowledge used to acquire the stadial principles. By contrast, coming after Bacon and Locke, many Scottish stadial theorists (but not all, see Sebastiani’s discussion of Monboddo in the next chapter), assumed that the theory of knowledge was the ultimate court in assessing history and that metaphysical principles unifying nature were either more distant explanations or wholly irrelevant. Kames’ focus on finding epistemically justified means for filling evidentiary lacunae and assessing questionable testimony in his analysis of the evolution of law are crucial for this distinctive epistemic bent of Scots stadial history. The motivating problem was a lack of context for understanding particular laws, since laws are often preserved as a code without any context for understanding what the code meant. As Kames put it ‘Lawyers are seldom Historians, and Historians … seldom Lawyers’.7 This is further exacerbated by the fact that the law may involve ‘judicial fictions’.8 For example, laws governing blood succession allow the descendants of a next sibling in line from the deceased to inherit when the sibling is also deceased, even though the third sibling in line is closer by blood. Kames notes that ‘the law if full of such fictions’ poses serious epistemic problems for the legal historian. Kames’ remedy was ‘cautious conjectures’ which allow us to interpret the law and provide a general corrective to fictions and falsehoods insofar as they offer justified countervailing evidence. This then allows the legal historian to forge historical chains by having a clearer sense of what the laws were and what they meant. These ‘cautious conjectures’ became a foundation of the influential Scottish ‘natural history of man’ in Hume, Smith, Millar, Ferguson, the later Kames and others. Natural history in this sense arises as much from an analysis of the restrictions on our understanding of the evidence as from positive transhistorical facts about human nature. It is this for which Kames’ contribution concerning law was crucial and which I will explore in what follows. 7 8

Henry Home, Essays upon Several Subjects Concerning British Antiquities (1747) 2nd ed. (London, 1749), 159. Home, Essays upon British Antiquities, 143.

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KAMES ON LAW

Essays upon Several Subjects in Law (1732) is for the most part an analytic demonstrative presentation of occasional aspects of Scottish and British law. There is little explicit appeal to history beyond an intriguing general remark suggesting Kames had begun to think historically about the progress of law through stages: ‘Law is but of slow Growth, especially among a rude people, more addicted to the Arts of War than of Peace’.9 It is most notable for Kames’ discussion of property rights which raises a problem which brings focus to many of his subsequent writings on law and morality. Kames begins his third essay, ‘Observations upon prescription’, with the claim that ‘PROPERTY rights’ are ‘founded a priori in the Nature of Man’ by which he understood ‘the Regulations their Nature and Constitution prompt and direct them to govern themselves by.’10 Kames knew and admired Joseph Butler and he appears to mean this in the sense Butler outlines in the first of his Sermons, that is, that built into our nature are a bundle of affective responses and motivations governed by conscience and the desire for happiness. Like Butler, Kames identifies the hierarchical structure of our frame with natural law. In analyzing prescription, by which he understands the acquisition (and relinquishing) of property rights through continuous use over a length of time, Kames criticized Pufendorf and Grotius and the position that he imputed to them that ‘Prescription is a Creature only of positive Statute, not at all founded in the Law of Nature’. He argued instead that prescription was guided by and founded in moral prompts in the human constitution – a picture inspired by Butler which he presented in much greater detail in the Principles of Morality and Natural Religion – and the recognition of the moral importance of these prompts by observers. Furthermore, the account has a sentimentalist bent. Kames argues that the emotional ties of the occupants to the property are relevant to the solution to legal disputes over property that has been abandoned, re-occupied, and then recalled and contested by the abandoner. In other words, Kames takes the prompts of emotional and affective ties arising from human nature, in this case attachment to property, as part of natural law (or as reliable signs of natural law) and argues that recognized emotional ties are sufficient evidence for modifying the ruling of positive law through equity.11 It is admittedly sketchy, but as Ian Simpson Ross has noted, one can see the beginning of a psychological theory of rights in this early work in so far as moral norms and moral rights to property are being signalled by and justified by affects. It is notable that Kames understands this as a criticism of Grotius and Pufendorf and consequently of the mainline natural law tradition.12 His worry was that in holding 9 10 11 12

Henry Home, Essays upon Several Subjects in Law (Edinburgh, 1732), 14. Home, Essays upon Several Subjects in Law, 100. Home, Essays upon Several Subjects in Law, 104. Ross, Lord Kames, 36.

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that prescription was solely a creature of positive law they failed to see the ultimate moral purpose which law served, a purpose which can be deduced by greater attention to the affects and the human frame. The criticism of natural lawyers is of a piece with Kames’ ongoing stress on the importance of equity as natural law correction to the rigidity of positive, common law.13 This was in part due to local concerns: a Scots jurist’s chafing at the rigidity of common law and admiring the English institution which allowed for moral redress which had its Scots analogue in the bench of the Lords of Session (an institution which Kames would later join). By the Principles of Equity (1760), Kames had explicitly identified equity with ‘more refined duties of the law of nature’ which arise in ‘the progress of society, and in the course of practice’ due to ‘growing delicacy of sentiment’.14 In other words, Kames came to think of equity as the historically progressive moral core of natural law allowing for the moral criticism of positive law. As mentioned, though, there is very little discussion of conjecture in 1732. Kames developed the extensive use of conjecture fifteen years later in his Essays upon Several Subjects concerning British Antiquities (1747). For example, in discussing the origins of two houses of Parliament, Kames writes ‘this practice probably had its Beginnings in Towns where no single Room was found large enough to accommodate the whole Body … the Silence of Historians favours this Conjecture’, and shortly after, in a passage reminiscent of Smith’s unintended consequences arguments he remarks: And this Event, among many, is an Instance of Revolutions which spring from the most accidental or transitory Circumstances, and for that Reason are extremely obscure in their Origin, however remarkable in their subsequent Appearance.15

He also made extensive use of psychological conjectural analysis. In 1747 Hume wrote a letter to Kames praising Essays upon British Antiquities and noted ‘you do me the honor to borrow some principles from a certain book: but I wish they be not esteemed too subtile and abstruse’.16 The ‘subtile and abstruse’ principles were taken from Hume’s chapter ‘Of contiguity and distance in space and time’ (2.3.7–8) in A Treatise of Human Nature. Kames drew on Hume’s analysis of the psychological experience of time and space in the succession and transition of our ideas to explain an apparent aberration in feudal primogeniture: ‘… ’tis a Law in our Nature, that the Connection among Objects is ever considered to be in Proportion to the Facility of the Transition of our Ideas from the one to the other’.17 13

14 15 16 17

Butler’s theory of conscience was developed in sermons preached to equity lawyers along similar lines. See Aaron Garrett, ‘Reasoning about morals from Butler to Hume’, in Ruth Savage, ed., Philosophy and Religion in Enlightenment Britain: New Case Studies (Oxford, 2012), 169–86. Henry Home, Principles of Equity (Edinburgh, 1760), iv. Home, Essays upon British Antiquities, 43. Letters of David Hume, vol. 1, p. 108: Letter 60. Home, Essays upon British Antiquities, 152.

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But there are further less abstruse principles shared with Hume through which we can see the integration of this epistemic approach into a progressive theory prior to the publication of the Spirit of the Laws. In discussing the epistemic difficulties in accessing changes in Feudal laws concerning succession, Kames remarked: As we have the Traces of these Distinctions in our Law-Books, tho’ obscurely handled, the Origin of collateral Succession, and its several Enlargements, do follow so naturally the Increase of Trade and Riches, that there is no resisting the Conviction which arises from the above Deduction. Let us but consider, that once there was no collateral Succession in the Feudal Law, and that now it is universal, not by Statute, but by Custom, and we will find the several Gradations above mentioned natural and easy, nay, what must necessarily have happened by the Progress of Arts and Sciences, which inspired us not only with a Taste for Liberty and Independency, but made Riches flow in among us, wherewithal to purchase these Blessings.18

This passage alludes to Hume’s ‘Of the Rise and Progress of the Arts and Sciences’, and perhaps to other of Hume’s essays, but the stress is different. General regularities in positive changes in laws which are incomprehensible when taken individually – in this case the universal acceptance of collateral succession – are better understood when correlated with wealth and commerce. This correlates in turn with the general progress of arts and sciences. One way of thinking about the shift in Kames’ work from 1732 to 1747 is that he moved from Butler’s ahistorical account of human nature and the moral frame to a more historical, empirical and epistemically aware approach. As with his 1732 analysis of prescription, Kames is interested in explaining something taken to be a creature of statute or positive law as arising from more permanent moral features of human nature. But where assumptions about ahistorical features of our nature were doing the critical and explanatory work in relation to prescription in 1732, in 1747 it is empirical generalizations about the consequences of the ‘Increase of Trade and Riches’ that provide explanatory context for the ‘obscurely handled’ laws governing aberrations in feudal primogeniture. This is not to suggest that Kames was no longer interested in ahistorical aspects of the human frame, far from it. But the epistemic problem of making sense of the law in absence of context pushed Kames to this different and historical solution. Consequently, many of the necessary conditions for thinking about history stadially were in place in this conjunct of an epistemic approach to history and a concern for moral criticism of law, albeit not the four familiar stages. Kames conjectured that the evolution of law correlated to the progress of wealth and commerce and that gaps in understanding the law could be filled by recourse to these (and other) historical conjectures. Eleven years later in the Historical Law-Tracts the elements of the previous works were integrated in a four-stage theory. Like John Dalrymple and Montesquieu, Kames explicitly distinguished four stages – hunter, shepherd, cultivator and us (that we are commercial was tacit). The stages first arose in a lengthy footnote explaining 18

Home, Essays upon British Antiquities, 159–60.

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why the ancient Egyptians were so advanced.19 Kames drew stadial comparisons across time – the work opens with a juxtaposition of the dread attending guilt between the Hottentotes (sic) of Kraal and Cain in Genesis. Kames also made extensive assumptions about the psychology, the material conditions and the ends of human nature relevant to the stages to explain the structure of Scottish and British law and moral institutions connected with the law. As we have seen this was not novel to Kames in 1758. It was an extension of ideas in Kames’ writings of eleven and twenty-six years prior. As in the earlier law works, Kames’ use of the stages in the Historical Law-Tracts was not only descriptive but also critical, a historical variant on his earlier criticisms of the natural lawyers and of common law. For example, Kames was highly critical of ‘barbaric’ feudal holdovers in the law – particularly of entails which resulted in pointless inequalities and stilted commerce – and argued that their persistence conflicted with natural law morality. This and other discussions in the Historical Law-Tracts, particularly the many comparative discussions of British and Scottish law, focus on the problem of making the haphazard accretion of common law with its sources in different stages of society reflect the moral ends and moral refinement of present society. The use of conjecture in general, and stadial history in particular, allow for a critical stance towards different aspects of the law. Conjectural and stadial history are thus best understood, I have suggested, as an unfolding response to a problem of the relation of positive law and natural law that was central to Kames’ understanding of the law as advocate and judge,20 and to the legal record as a critical historian. There is a further ingredient, though, which I will suggest is crucial in the move from conjectural history to full-blown Scots stadial history. To see this, it is useful to contrast Kames with another Enlightened Scot. CHRONOLOGY

Neither conjectural history nor stadial history was the sole and inevitable form of Scottish thinking about historical progress. I have mentioned Hume’s and Robertson’s Histories. But there was another model for historical thinking about progress, and about time, that allows for an edifying comparison with both Kames and Hume. Both Adam Smith, in the Wealth of Nations21 and John Millar in the Origin of the Ranks22 drew on the now far more obscure Aberdonian Adam Anderson’s An historical and chronological deduction of the origin of commerce from the earliest accounts to the present time, containing an history of the great commercial interests 19 20 21

22

Home, Historical Law-Tracts, 90. For some of the background of Kames and Dalrymple’s critical attitude towards the persistence of feudal tenures, see Moore, ‘Montesquieu and the Scottish Enlightenment’. For one of a number of examples, Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. R Campbell, A. S. Skinner and W. B. Todd, 2 vols. (Oxford, 1975), vol. 1, p. 475 n. 8 (IV.iii.a.3). John Millar, The Origin of the Distinction of Ranks, ed. Aaron Garrett, (Indianapolis, 2006), 270n.

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of the British empire (1764), published in two folio volumes after both the Historical Law-Tracts and Hume’s History of England (1762). Anderson began his career at the South Seas Company shortly before or during the South Sea Bubble crisis and rose to chief clerk by his death in 1765. Given the unsurpassed first-hand knowledge he had of the bubble, of commerce and mercantilism, it is unsurprising that Millar and Adam Smith drew on An historical and chronological deduction.23 Anderson dedicated the Deduction to the recently founded Society for the Encouragement of Arts, Manufactures, and Commerce – presently the Royal Society or Arts. The conclusion of the dedication reads: The salutary Effects of a Scheme, so well concerted, are already sensibly felt; and Posterity will one Day have abundant Reason to bless the Names of those who gave Birth to what will then have naturalized to the British Empire in America every Excellence of Product, Manufacture, or Improvement; whilst, at the same Time, it will have secured for themselves at Home whatever before was wanting to compleat our Superiority over the rest of the Commercial World.24

The dedication was appropriate insofar as the Deduction contains heaps of information on the expansion of commerce and empire. After Anderson’s death the Deduction went through successive editions in which anonymous confreres added further information from 1763 to the end of the eighteenth century. In 1805 the Edinburghian David Macpherson published the celebrated Annals of Commerce, Manufactures, Fisheries, and Navigation which incorporated a great deal of Anderson’s earlier work. This cemented Anderson’s status as a mostly forgotten participant in the genre of the history of commerce.25 One hundred and fifty years after the publication of Anderson’s Deduction, Edwin Cannan began a review (of William Smart’s Economic Annals of the Nineteenth Century, 1801–1820) by remarking: The patient Adam Anderson carried his Historical and Chronological Deduction of the Origin of Commerce from the earliest accounts, containing a History of the great commercial interests of the British Empire down to 1763, and his anonymous continuators added the years to 1788, giving over seven hundred quarto pages of 45 lines each to the quarter-century. Macpherson continued Anderson to 1800, and boiled him down so effectually that his name seldom occurs in footnotes, which simply bristle with ‘Macpherson’.26 23

24 25

26

Adam Anderson, An Historical and Chronological Deduction of the Origin of Commerce from the Earliest Account to the Present Time, 2 vols. (London, 1764). The copy I consulted at Houghton Library had Edward Gibbon’s bookplate and the online copy I use belonged to John Adams – further evidence of contemporary interest in Anderson by notable readers. Anderson, Historical and Chronological Deduction, Dedication. On the genre of the history of commerce, see Paul Cheney, Revolutionary Commerce: Globalization and the French Monarchy (Cambridge, MA, 2010) and Sophus Reinert, Translating Empire (Cambridge, MA, 2011). Edwin Cannan, ‘William Smart. Economic Annals of the Nineteenth Century, 1801–1820’, The Economic Journal, vol. 21, no. 81 (1911), 61–4, at 61.

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Cannan suggested that Macpherson would now have a similar fate to Anderson, and future footnotes would bristle only with ‘Smart’. Anderson’s history offers evidence identifying population growth, geographic expansion and economic colonial expansion with progress, evidence that was utilized by more familiar stadial historians of the Scottish Enlightenment. Anderson himself refers to Hume’s controversy over ancient population,27 and sides with Hume against Wallace. And even more than Smith and Hume, Anderson thought that the future of the British Empire was America via colonial expansion. But Anderson’s Deduction determines and organizes events, facts, places and persons in time in a way that is most decidedly not what we have come to associate with Millar and Smith. The ‘Chronological Deduction’ of the title is meant literally insofar as all of the information is set out in order from first to last to allow readers to witness the steady expansion and progress of commerce. And first to last is quite literal as well. In the left column of the first section are two dates – the date from the creation of the world and the date bc and ad. So, for example, the chronology begins with Noah’s flood which occurred in 2348 bc, 1656 years after the creation of the world. Once Christ is born there is only one date: ad. But the tacit connection to the creation of the world, and its real, finite chronology is presumed. This chronology is a sufficiently pervasive theme of organization that it is even preserved in the index – for every index entry after the birth of Christ there is one date, and for every entry before there are two. Macpherson, whom Cannan had noted bristled in place of Anderson in the footnotes, had prior to the publication of the Annals of Commerce produced the first printed edition of one of the oldest Scottish historical chronicles, Andrew of Wyntoun’s verse history De Orygynale Chronykil of Scotland.28 Anderson’s Deduction was, in some sense, in the tradition of Wyntoun and the Northumbrian Venerable Bede’s De Temporum Ratione where time is real, meaningful, universal, and meaningfully finite – that is, the beginning and end of time are supremely meaningful for all that happens in between. There was an ordered sequence of persons and events certain of which had a special meaningful status that stood out and structured the rest – Easter, for example, (and calculating the real date of Easter was a central desideratum for Bede). It was real and universal in that whether or not agents knew it, all events in time were connected, for better or worse, to these special, real, temporal features. None of this is pronounced in Anderson’s history beyond the marginal dates. Instead, dates have importance due to available evidence relevant to the goal of the work. There are twenty pages on 1720 due to Anderson’s special expertise on the 27 28

Anderson, Historical and Chronological Deduction, vol. I, p. xiii. One notable feature of Macpherson’s edition was that he cut down the first five books which concerned mostly Biblical and non-Scottish history since he assumed, probably rightly, that the audience for the book would be most interested in Scots history.

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South Sea Bubble and its relevance to the goal of the work. There are three lines for the birth of Christ – ‘In the Year of the World 4004, and 2348 Years after the General Deluge or Flood of Noah, our Blessed Redeemer the Lord Jesus Christ was born; with which Event we shall conclude this First Part of our Work’ and in the marginal header, describing this and the prior paragraph ‘Two Kinds of Apples brought to Italy. Jesus Christ born’. But these three lines still have a different standing in relation to the overall structure of the work than the twenty pages on 1720, or on 1660 and so on. They are useful and real joints of time, so to speak,29 even if the two kinds of apples are more important to the rise of commerce.30 STADIAL TIME

In the previous sections I have argued that in a succession of works on law, Kames developed the idea that progressive empirical facts about human nature could be used to conjecturally illuminate fragmentary evidence about the meaning and nature of law. For Anderson, the progress of commerce follows chronological succession, differentiated from creation onwards. It is universal insofar as all peoples – whether Babylonians or Scots – are born, die and prosper more or less in this succession of continuous temporal parts. There are hallmarks – notably creation and the life of Christ – that unite this succession. Historical events are fixed at real times, times which may be important for understanding something about the events (although it may just be that it’s Tuesday, so Jesus and two kinds of apples brought to Rome). There is little question on Anderson’s account that the objective temporal indices of chronology and the chain they dictate provide a scaffolding for how we understand the changing progressive and regressive currents of history and what they ultimately are. But when history goes epistemic, as it does for Kames and Hume, it becomes quite different than for Anderson or Andrew of Wyntoun. For Hume, and for Kames insofar as he accepts Hume’s account of time in the aforementioned analysis of succession in Essays upon Several Subjects concerning British Antiquities, the parts of time are a form of, or just are, the experiential succession of ideas in individuals and their generalizations in groups. In other words, time just is the way human beings experience their ideas as one after another. It does not follow from this that there is no real mind-independent scaffolding of time, but it does follow that one can conceive of time independent of any such scaffolding as how the mind 29

30

For an argument that biblical chronology persists in the first half of the eighteenth century more as a convenient organizational structure than as a deep commitment, see Edoardo Tortarolo, ‘L’euthanasie de la chronologie biblique’, in Muriel Brot, ed., Les Philosophes et l’histoire au xviiie Siècle (Paris, 2011), 221–45. Anderson’s apples may be a mark of this euthanasia. By the time of Macpherson this is gone. Creation is not mentioned, the timeline passes without comment from 13 bc to ad 14: David MacPherson, Annals of Commerce, Manufactures, Fishery, and Navigation, 4 vols. (Edinburgh, 1805), 121. The second volume begins at 1492.

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experiences its ideas one after the other. And, importantly, one can conceive of stretches of time, or temporal events, independently of one another. Consequently, absolute chronology or real footing in the unfolding of mind-independent events is not necessary to explain what time is.31 This is crucial for distinguishing stadial theories of history from chronological histories like Anderson’s. For Anderson time is structured by meaningful dates which give chronology its joints, its meaning and its objective structure. Stages are discussed in reference to and as an overlay on these features. For Kames and Hume due to what time is – the successive experience of ideas – and due to problems with accessing a coherent succession of past meaningful events, Anderson’s chronological solution is not on the table.32 This is closely connected to the important feature of stadial analysis that stages can exist at different times, and the different times they exist at are not relevant to whatever properties they possess qua stages in the way that Christmas is meaningful in the account of time I have ascribed to Anderson. Later, in Monboddo, stages even come to be indexed to properties of individuals, the mental and physical condition of the Wild Girl of Songy or Peter the Wild Boy are the same as the mental and physical condition of earlier stages of history.33 If history is progressive, but if stages of history can be the same independent of chronological order, then it is not clear whether progress applies to history in general in the way it does in Anderson’s story of temporally successive growth and expansion. This it seems to me is a consequence of the conjectural origins of stadial analysis, in that they are tools used to solve epistemic worries independent of assumptions about metaphysically or theologically based chronological order and continuity. Consequently, stages are at least in part relative to the problem one is addressing, that is, to the ‘obscurely handled’ reports that one is trying to make sense of and form into an explanatory chain. There is a further shared position of Kames and Hume that distances them both from Anderson’s approach to chronology. Hume’s Natural History of Religion is a conjectural history of religion that fills in the links of historical chains on the basis of general psychology and assumptions about the rude stages of society. The two combine in Hume’s conclusion that ‘to ascribe the origin and fabric of the universe to these imperfect beings [i.e., gods – AG] never enters into the imagination of any 31

32

33

How to interpret Hume’s account of time is a vexed affair. For a thorough treatment of Hume on time, see Maité Cruz–Tleugabulova, ‘Hume on Knowledge of the Past’, PhD thesis, Boston University (2019). Kames, being a heterodox Christian, does hold that the birth of Jesus and the creation of Adam and Eve are deeply important. The latter becomes a central feature of his later strange racial theory, and perhaps points to another agreement with Hume: see Aaron Garrett and Silvia Sebastiani, ‘David Hume on race’, in Naomi Zack, ed., The Oxford Handbook of Philosophy and Race, (Oxford, 2017), 31–43. But at least in the earlier discussions it has no such role. I will shortly return to the issue of polygenesis. James Burnet (Lord Monboddo), Antient Metaphysics, 6 vols. (Edinburgh, n.d. [1779]), vol. 4, 1.ii.

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polytheist or idolater’.34 Hume is here using well-founded conjecture to undermine received interpretation of Scripture as infallible evidence that religion begins with monotheism and is corrupted into polytheism. What is at stake in our discussion is the connection between central events described in Scripture and chronology of the sort which Anderson and countless others assume, and which Hume undermines, and also the related assumption that history must be unified. In conjunction with the arguments about time, nothing remains testimonially (or metaphysically – although that involves further explanation and, as Hume would say, going a bit deep) which anchors chronological succession to one real, unique, underlying and determining temporal succession. One can see the Kames–Hume analysis on full display in Millar’s Origin of the Ranks of 1771, which drew extensively on and shared basic stadial assumptions with Smith in his Lectures on Jurisprudence (which Millar attended). The problem Millar is analyzing is the nature of authority. Like Kames he is criticizing natural lawyers who held that natural duties and offices – parent to child, husband to wife, master to slave – possessed a historically invariant core normative structure which was specific to the duty and arose from ahistorical features of human nature. This is analogous to the assumptions about monotheism in Hume’s analysis. Millar argued that the historically invariant aspects of the duties were normatively extremely thin and that the nature of authority in these duties changed consistently across all the duties and not just as special to the duty: that is, all became less violent and more liberal in tandem with progressive changes in social structure and wealth. The stages themselves arose from broad comparisons of different peoples in different times, for example, Cain and Abel and the Huron, like Hume’s comparisons of the various polytheists. We know that Kames agreed with the most heterodox argument in Hume’s Natural History of Religion because he added a footnote to the 1757 edition of the Principles of Morality and Natural Religion that is a paraphrase of Hume’s argument for the priority of polytheism.35 The note suggests that Kames agreed with Hume that there were multiple possible causal sequences which might explain the order of the observed world. This is not to suggest that Kames was not a theist, he certainly was. Nor is it to suggest that he did not believe in creation, he did. Instead, Hume’s analysis of time as the experience of succession, in conjunction with Hume’s arguments that the causal successions of the observed world might have been drastically different, allowed temporal events to be separable from one another. This further allowed that they could be experienced and understood without recourse to a set of determined and necessarily connected events as presented in Scripture, or indeed 34 35

David Hume, A Dissertation on the Passions; the Natural History of Religion, ed. Tom Beauchamp, (Oxford, 2007), 4.7. Henry Home, Essays on the Principles of Morality and Natural Religion. In Two Parts (London, 1758), 273–4n.

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any scaffolding, and compared in different stadial sequences. When conjoined to Kames’ conjectural history and Hume and Kames’ shared epistemic scepticism about evidence, this made it possible to think about historical stages as separable temporal successions independent of any one unifying temporal spine or scaffolding. In other words, I can compare two stretches of time without needing to think about what may, or may not, underlie them. As a consequence, it was now possible to think of history as to some extent polycausal and polytemporal. Chronological successions – with the stress on the plural – may terminate in irreducible brute facts due to lack of evidence without being unified by one cause (they may be unified by other properties that arise from comparison). Stadial history need not conflict with unified chronology, for example, Smith can be seen as privileging the growth of wealth and commerce in his analysis thus providing a new unifying ‘chronology’ founded on a stadial analysis responding to the problem of the improvement of the productive power of labour. Indeed Smith presents it in the ‘Introduction’ to the Wealth of Nations in terms of the contrast between the first stage of society – ‘hunters and fishers’ and ‘civilized and thriving nations’.36 Smith’s analysis though is epistemic in a sense that Anderson’s is not. Different stages may and do co-exist and contingency is very much a part of the story – ranging from fires and the de-population of the plague to the ‘profusion’ of government retarding the ‘natural progress of England towards wealth and improvement’.37 The chronological scaffolding is secondary to the analysis of the natural progress of wealth. Consequently, one might think of stadial history as universal conjectural history in the sense that the conjectures now take explanatory precedence and can be used in many different contexts. The four (or however many) stages may be profitably used to analyze law, familial authority, the rise of towns, the roles of women (William Alexander), Language (Monboddo), martial character (Ferguson), etc., all areas where evidence (or a relevant type of evidence) is lacking. But crucially for many Scots historians it is still conjectural history, or at least ought to be, due to the assumptions about epistemic limits and time which provide the basis for Kames and Hume’s account on which many drew. In this sense also although Stewart privileges a different, later iteration of conjectural history, one might view it as connected to Kames and Hume’s – that is, especially epistemically remote historical objects and acute lack of benchmarks – but necessitating an a priori approach. John Robertson has argued influentially for the unity of Enlightenment via the unified concerns of both Scottish and Neapolitan intellectuals. There are striking affinities between how Kames, Hume, Millar and Vico draw on a volume of questionable evidence to build better-founded conjectures through broad comparison demonstrating its unity. Vico’s solution, insofar as it assumes the Flood as a starting point 36 37

Smith, Wealth of Nations, vol. I, p. 10 Smith, Wealth of Nations, vol. I, p. 345: II.iii.36.

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and a type of sacred history offers though a different negotiation than either the Scottish stadial historians or Anderson.38 I want finally to suggest that the separation of time and chronology can be seen in one of the distinctive shared interests of Hume and Kames – their attraction to polygenism. Both Hume and Kames, but hardly anyone else in the Scottish Enlightenment, seem to hold that there are different races of men with different origins and different histories. In Kames’ rambling late work, Sketches of the History of Man (1774), this takes the form of positing multiple Adams and Eves and multiple progressive histories that need not align chronologically.39 In Hume’s footnote to ‘Of National Characters’, this takes the form of differentiating between the races of man and excluding the non-white races, and then only one of the non-white races, from a part in progressive history.40 There is much more to say about this. For example, their different polygenisms may be in part a consequence of Hume’s greater epistemic scepticism and his delight in brute facts and Kames’ different tendency to multiply conjectures when confronted with lack of evidence. But that they can formulate polygenism as an option is due, at least in part, to the kind of ambiguity in stadial history I have mentioned and its epistemically sceptical origins. That for the most part other Scots did not seem to be drawn to it is perhaps a sign that the sort of assumptions made about chronology by Anderson and many others were not thrown over, and as I have said, remain compatible with a less radical version of stages. But even if the skein of polygenism was mostly not embraced by Scots, stadial history was of course developed in many directions. Its origin in Kames’ interest in the law is an instance of what Kames noted about the origins of the two houses of Parliament, ‘Revolutions’ sometimes ‘spring from the most accidental or transitory Circumstances’. 38

39 40

John Robertson, The Case for the Enlightenment. Scotland and Naples 1680–1760 (Cambridge, 2005), 230; see also Chapter 7 in this volume, John Robertson, ‘The Recourse to Sacred History before the Enlightenment’, 177–8. Henry Home, Sketches of the History of Man (1774), ed. James Harris, 3 vols. (Indianapolis, 2005), vol. 1, p. 21. Aaron Garrett, ‘Hume’s “Original Difference”: race, national character and the human sciences’, Eighteenth-Century Thought, 2 (2004), 127–52; Garrett and Sebastiani, ‘David Hume on race’.

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9 Civilization and Perfectibility: Conflicting Views of the History of Humankind? Silvia Sebastiani

INTRODUCTION

Much has been written on the historiographical revolution in the Enlightenment or, to use Ernst Cassirer’s 1932 classic formulation, on ‘the Conquest of the Historical World’.1 Scholars have stressed the novelty of Enlightenment historians’ use of narrative, of their method, of their critical attention to positive evidence and reliable sources, as well as their broader concern with responding to the interests of an expanding readership.2 Rather than focussing on heroes, kings and the political events of kingdoms and states, which formed the core of traditional histories, the Enlightenment approach was philosophical, as it addressed issues of universal scope, such as manners, customs, laws and mode of subsistence. It discounted a strictly chronological approach, instead outlining a progressive path towards civil society. As Voltaire wrote in a comment of David Hume’s History of England in 1768, ‘il n’appartient qu’aux philosophes d’écrire l’histoire’ (‘it belongs solely to philosophers to write history’). By this formulation, Voltaire meant a history which was based on proven facts, which was impartial, and which was useful and interesting, in that it analyzed the moeurs of peoples and the progress of the esprit humain.3 In the case of Scotland, study of historiography has been consubstantial with the construction of the field of the ‘Scottish Enlightenment’. Dugald Stewart’s biographies of Adam Smith and William Robertson ascribed great importance to the use of narrative and historical method, while his life of Thomas Reid connected the 1 2

3

Ernst Cassirer, The Philosophy of the Enlightenment, (Boston, 1955), Chapter 3: ‘The Conquest of the Historical World’. From among an enormous literature, see the classical study by Arnaldo Momigliano, Sui fondamenti della storia antica, (Turin, 1984), and the comment provided by Mark Salber Phillips from a British perspective: ‘Reconsiderations on history and antiquarianism: Arnaldo Momigliano and the historiography of eighteenth-century Britain’, Journal of the History of Ideas, 50 (1989), 117–33; Mark Salber Phillips, Society and Sentiment. Genres of Historical Writing in Britain, 1740–1820 (Princeton, 2000). Voltaire, ‘Réflexions sur l’histoire, et en particulier sur l’histoire d’Angleterre de M. Hume’, in Œuvres complètes, vol. XXXVI, (Paris, 1827), 428–29, quotation at 428. See Bertrand Binoche, Les trois sources de philosophies de l’histoire (1764–1798) (Paris, 1994).

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progress of human society to that of human mind.4 In so doing, Stewart identified two major areas of inquiry that would be developed in later accounts of a Scottish Enlightenment: the philosophy of common sense, based on a new empirical science of the human mind, and history as progress through a succession of stages of development, ranged from the simplest and lawless to the most complex and civilized.5 In this chapter, I will address this second approach, to investigate how stadial history was conceived in conceptual terms. Was it understood as a temporal–­conceptual artefact, as an evidence-based model, or as historical summary? In order to respond to this question, I will look at the Enlightenment concepts of civilisation/civilization and perfectibilité/perfectibility, and at the ways in which they were understood to organize historical time. Both were neologisms of the 1750s; both stressed the temporality and the historicity of humankind in its process of becoming. But even if they were sometimes associated, civilization and perfectibility were far from being synonymous. Their meanings remained unsettled and ambivalent throughout the eighteenth century, before acquiring a more stable and teleological sense during the French Revolution. My goal is to explore how these two concepts – and the alternative models they prompted – were conceived, related and opposed in the philosophical and stadial histories of the Scottish Enlightenment. How did these models work? What were their normative implications, and what did they enable their proponents to do? I suggest that both models owed much to the natural history which Buffon began to set out in 1749, while also confronting Rousseau’s hypothesis of a caesura between nature and society. My claim is that the relationship between ‘natural man’ and ‘historical man’, as elaborated by Buffon and Rousseau, was central to the new Scottish definition of history and contributed to enlarge its understanding of the social. This brings me to stress the close dialogue between stadial history, moral philosophy and natural history, in contrast with mainstream historiography which all too often has focussed only on one of these approaches, failing to see their interactions. My argument proceeds as follows. First, I will provide basic definitions of the two concepts. Second, I will examine stadial history as a history of civilization, arguing that this was part of the Scots’ response to Rousseau’s Discours sur l’origine et les fondements de l’inégalité parmi les hommes (1755) and its denial of the natural

4

5

Dugald Stewart, Biographical Memoirs of Adam Smith, LL.D., of William Robertson, D.D. and of Thomas Reid, D.D., Read before the Royal Society of Edinburgh (Edinburgh, 1811). For a discussion of Stewart’s definition of the Scottish method as ‘theoretical or conjectural history’, see Aaron Garrett’s Chapter 8 in this volume. I have advanced a criticism of this label in The Scottish Enlightenment. Race, Gender and the Limits of Progress (Basingstoke and New York, 2013), 6–9. See Paul B. Wood, ‘Introduction: Dugald Stewart and the invention of “the Scottish Enlightenment”’, in The Scottish Enlightenment. Essays in Reinterpretation, ed. Paul B. Wood, (Rochester and Woodbridge, 2000), 1–35; Michael Brown, ‘Creating a canon: Dugald Stewart’s construction of the Scottish Enlightenment’, History of Universities, 16 (2000), 135–54.

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sociability of individual humans. The polemics opened by Rousseau’s idea of the state of nature led Scottish historians of civilization to embrace the social and historical dimension that Buffon gave to humankind in his massive Histoire naturelle (published in thirty-six volumes between 1749 and 1788). Adam Ferguson, Professor of Natural Philosophy (1759–1764) and then of Moral Philosophy and Pneumatics (1764–1785) at the University of Edinburgh, is a case in point, as his understanding of the history of civil society was particularly affected by the method and arguments expounded in Buffon’s Histoire naturelle. I will then turn to the concept of perfectibility, in order to show how the erudite judge James Burnett, Lord Monboddo, employed it as an alternative scheme of development. An arch-enemy of Hume’s philosophy, Monboddo considered Rousseau as ‘the only one philosopher of our times’ who had a proper idea of the ‘philosophy of man’.6 In his view, human capacity for perfectibility would by no means automatically result in civilization. TWO ENLIGHTENMENT CONCEPTS

The history of the concept of civilization and the role it played in Enlightenment historiography are sufficiently well known, thanks to a number of studies dating back to Lucien Febvre’s influential essay of 1929.7 Previously used as a legal term for describing the transfer of a case from the criminal to the civil court,8 civilization acquired a new meaning in the 1750s/1760s, when in France as in Scotland it was employed to signify the slow process leading peoples from rudeness to civil society.9 By the 1770s, this notion, with its interpretative scheme of development, had become central to the political and historical language of the new philosophical histories, subsuming, and partly replacing, the term civility. Civilization also acquired the slightly different sense of the (positive) outcome of such a civilizing process, and

6

7

8

9

[James Burnet, Lord Monboddo], An Account of a Savage Girl, Caught Wild in the Woods of Champagne. Translated from the French of Madam H-T. With a Preface, Containing Several Particulars Omitted in the Original Account (Edinburgh, 1768), ‘Preface’, xix. Lucien Febvre, ‘Civilisation. Évolution d’un mot et d’un groupe d’idées’ (1929), in his Pour une histoire à part entière (Paris, 1962), 481–528. It was in these same years that Norbert Elias started his work on the The Civilizing Process (published in 1939), and Joachim Moras was writing his thesis on Ursprung und Entwicklung des Begriffs der Zivilisation in Frankreich (1756–1830) (Hamburg, 1930). See also Jean Starobinski, ‘Le mot civilisation’, in his Le Temps de la réflexion, vol. IV, (Paris, 1983), 13–51. In all the editions of Samuel Johnson’s Dictionary of the English Language (1st ed. 1755), ‘civilisation’ is defined as ‘a law, act of justice, or judgment, which renders a criminal process civil; which is performed by turning an information into an inquest, or the contrary’. The Marquis de Mirabeau has been identified as the first who used ‘civilisation’ to denote the softening of manners in L’Ami des hommes ou Traité de la population in 1756 and, in an expanded sense, in his later manuscript on ‘L’Ami des femmes ou Traité de la civilisation’. Adam Ferguson’s An Essay on the History of Civil Society (1767) has been considered the first published work in English to make extensive use of this new concept. For previous uses of the term ‘civilisation’, see Dario Mantovani, ‘Le droit est-il civil? La civilisation comme mot et comme récit avant Mirabeau’, in Civilisations: questionner l'identité et la diversité, ed. Vinciane Pirenne-Delforge and Lluis Quintana-Murci, (Paris, 2021), 15–45.

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became a key concept for describing the trajectory covered by Europe after the fall of the Roman Empire: from barbaric feudalism through commercial society.10 The potentially universalistic concept of civilization here reached a limit, for the historically distinctive Roman and German inheritance, which gave shape to modern Europe, was as a matter of evident fact not available to non-European peoples. Two ‘incompatible imperatives’ were simultaneously at work: the imperative of writing a universal history, capable of encompassing all the peoples of the earth in a common path towards civilization, and that of tracing a genealogy of European modernity, relating to its particular trajectory.11 These two approaches persisted together but were in constant tension with each other. Perfectibilité has an even more ambivalent connotation. The term had been used, in French, in seventeenth-century alchemic language for defining a chemical element susceptible of purification (perfectible or perfectif).12 But it was in 1755 that perfectibilité started to be related to humanity. In that year, Friedrich Melchior Grimm defined it as ‘la faculté de se rendre plus parfait’ (‘the faculty of becoming more perfect’) in his Correspondance littéraire, while Jean-Jacques Rousseau gave it the slightly distinct meaning of ‘la faculté de se perfectionner’ (‘the faculty of perfecting ourselves’) and placed it at the heart of his Discours sur l’origine et les fondemens de l’inégalité parmi les hommes.13 Grimm and Rousseau’s definitions converged in three crucial points: perfectibilité was a criterion of humanity, distinguishing man from all other animals; it affected the individual as well as the species; and it was a faculty that developed all the others, that is a meta-faculty. The very notion of faculty implied that perfectibilité was rooted in human nature, in its organs and organization. This faculty was, however, the result of a long history and education, so that perfectibilité was at the same time innate and acquired. More fundamentally, it was the condition for making history possible. Rousseau deliberately dissociated perfectibilité from perfection: whereas animals attained their perfection after a few months becoming what they would be for their entire life, humans were mainly the product of history and culture. But were animals deprived of perfectibility? Not everybody would agree.14 The answers varied radically in the eighteenth century 10

11 12

13

14

Antoine Lilti, ‘L’impossible histoire globale’, in his L’héritage des Lumières. Ambivalences de la modernité (Paris, 2019), 139–58. On the ambivalence of the notion, see also Bertrand Binoche, ed., Les Equivoques de la civilisation (Seyssel, 2005). Antoine Lilti, ‘La civilisation est-elle européenne?’, in his L’héritage des Lumières, 87–113, quotation at 104. See Bertand Binoche, Nommer l’histoire. Parcours philosophiques (Paris, 2018), Chapter 3, which also signals the many occurrences of the Latin term perfectibilitas in theological language since the thirteenth century. Friedrich Melchior Grimm Correspondance littéraire, philosophique et critique, vol. II, (Paris, 1867), 492 (February 1755); Jean-Jacques Rousseau, Discours sur l’origine et les fondements de l’inégalité parmi les hommes par Jean Jacques Rousseau, citoyen de Genève (1755), in Œuvres complètes, vol. III, (Paris, 1964), 142, 149, 162, 210. Rousseau defined perfectibilité where he first used it, 142. Charles-Georges Leroy, for instance, did disagree: Lettres sur les animaux, (Nuremberg, 1768); and Lettres philosophiques sur l'intelligence et la perfectibilité des animaux, avec quelques lettres sur l'homme (Paris, 1802).

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and were far from being homogenous. The concept remained unsettled at least until the 1790s, when it attained, with Condorcet, the new and specific sense of perfectibilité indefinie.15 This is not the place to discuss at length Rousseau’s very complex and ambivalent definition of perfectibilité, on which much has been written. I stress just a few elements that are crucial to a grasp of the Scottish debate on the ‘science of man’, which found in the Second Discourse an important source of reflection as well as reaction. First, Rousseau reduced the definition of ‘man’ solely to perfectibilité, so as to deprive ‘him’ of all the qualities classically attributed to human nature, including sociability, language or the erect position. Humankind was demarcated by two minimal characteristics: self-preservation (amour de soi) and pity (pitié). Second, if humans were perfectible, perfectibilité did not manifest itself automatically. Perfectibilité required the intervention of external circumstances, accidental events in the natural world, which could not (and sometimes did not) come about. It was thus contingent. Different circumstances could engender different histories. Third, perfectibilité designated a change of condition, not an improvement, leading men to distance themselves further and further from their natural condition. The fourth crucial point is that by injecting perfectibility in the account of socialization, Rousseau undermined the fixity of human nature that, until then, had been the pillar on which history was based. By transforming nature, humans also transformed their own nature – in contrast with the immutability of animals’ instinct. Sociability, language, property and government were all artificial products of a history that progressively de-naturalized the human being. The history of civilized men, especially after the dramatic introduction of private property, was thus built upon a radical caesura between nature and society. To study man ‘dans le premier Embryon de l’espèce’ meant, for Rousseau, to disentangle what was ‘original’ from what was ‘artificial’, that is historical. This is why, at the outset of his Discourse on Inequality, he invited his reader to ‘écarter les faits’ and to ‘form conjectures, based solely on the nature of man’. By affirming the conjectural character of the primitive state, he could dissociate it from a Biblical origin. What Rousseau proposed was a non-providential history, in which man was not instructed by God, but abandoned to himself. But substituting conjecture for the sacred historical origin of mankind did not free Rousseau’s subsequent account of human development from all relation to historical fact. A tension between hypotheses and factual evidence traversed the Second Discourse and was inherent in its structure. Whereas the main text invited the reader to set aside the facts in order to reconstruct original human nature by philosophical reasoning alone,

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Jean-Antoine Nicolas de Condorcet, Esquisse d’un tableau historique des progrès de l’esprit humain, ed. Jean-Pierre Schandeler and Pierre Crépel, (Paris, 1988), 80–81. There was a significant difference between Condorcet’s ‘perfectibilité reéllement indefinie’ and Rousseau’s ‘perfectibilité presque illimitée’, on which see Binoche, Nommer l’histoire, Chapter 3. See also Michael Sonenscher, ‘Sociability, perfectibility and the intellectual legacy of Jean-Jacques Rousseau’, History of European Ideas, 41:5 (2015), 683–98.

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the notes were a collection of ‘facts’, which provided Rousseau with ‘incontestable proofs’ for his conjectures.16 Rousseau’s ‘system’ prompted the almost immediate response of Adam Smith, in a famous letter addressed in 1756 to the Edinburgh Review, a short-lived but ambitious journal founded by members of the Select Society. As is well known, Smith associated the Discourse on Inequality with Bernard Mandeville’s Fable of the Bees (1723), and specifically the Fable Part II (1729) – a work generally read as an apology for self-interested egoism, and thus far removed from Rousseau’s critique. Despite their different evaluations of human nature and civil society, the Discourse and the Fable concurred in some crucial points, according to Smith. Both argued for humanity’s natural unsociability. Both emphasized the extreme rudeness of the initial condition of mankind and traced the ‘slow progress and gradual development of all the talents, habits, and arts which fit man to live in society’. Both insisted on the manipulative origins of law and political society, and considered commercial society to be the result of vice.17 All these issues fed into the historical reflections of the Scottish literati. In the same letter, Smith also commented on Buffon’s Histoire naturelle, by then advanced to its fifth volume, praising its style but dismissing it as ‘an almost entirely hypothetical system’, for its speculative account of the formation of plants, animals, and the senses. In this of course there was a close similarity between the works of Rousseau and Buffon.18 What is interesting is that Smith proposed an initial distinction between natural and moral philosophy, placing Buffon and Daubenton on the side of natural philosophy, and Rousseau on the side of moral philosophy. However, by pointing out that Rousseau adopted Buffon’s hypothetical perspective in describing the formation of the world, the flora and the fauna, he dissolved de facto such a theoretical distinction. In this way, Smith ended up making moral philosophy a part of natural history.19 Regardless of his criticism of

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Historiography often stresses Rousseau’s conjectural approach, while disregarding this tension inside his Discours. It is in the first paragraph of the note X that Rousseau employs the expression ‘tous ces faits dont il est aisé de fournir des preuves incontestables’. Adam Smith, ‘Letter to the Edinburgh Review’ (1756), in Essays on Philosophical Subjects, ed. William P. D. Wightman and J. C. Bryce, (Indianapolis, 1982), 242–54. For a lengthy discussion of Smith’s letter, see Dennis C. Rasmussen, The Problems and Promise of Commercial Society (University Park, PA, 2008), 59–71. On the comparison between Rousseau and Mandeville, see Edward G. Hundert, The Enlightenment’s Fable. Bernard Mandeville and the Discovery of Society (Cambridge, 1994), 105–15. The relationship between Rousseau and Buffon is a complex one, which would need a study apart: whereas the former borrowed substantially from the latter (the Histoire naturelle was the first work mentioned in the notes of the Second Discourse), Buffon attempted to respond to Rousseau at several moments of his long-lasting enterprise. For an interesting as well as informative reading, see Claude Blanckaert, ‘La perfectibilité, sous conditions? Éducation d’espèce, flexibilité d’organisation et échelle d’aptitude morale en anthropologie (1750–1820)’, in L’homme perfectible, ed. Bertrand Binoche, (Seyssel, 2004), 114–44. Paul Wood has made the strongest case for the centrality of natural history in shaping the Scottish Enlightenment ‘science of man’. See Paul B. Wood, ‘Buffon’s reception in Scotland: the Aberdeen connection’, Annals of Science, 44 (1987), 169–90; ‘The Natural History of Man in the Scottish

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Buffon’s speculative method, to which Smith preferred Daubenton’s more descriptive approach, Buffon’s ‘man’ retained an important place in the progressive stadial scheme developed by the Scots. STADIAL HISTORY AND THE CIVILIZATION MODEL

In his lectures on jurisprudence, given at the University of Glasgow in the early 1760s and perhaps earlier, Smith formulated an idea of human progress that was to become a shared historical framework for the Scottish Enlightenment. It outlined the development of humankind from savagery towards civil society, through successive stages of socio-economic development: ‘1st, the Age of Hunters, 2dly, the Age of Shepherds, 3dly, the Age of Agriculture; and 4thly, the Age of Commerce’.20 According to Smith, this process was both natural and historical. It was the result of uniform and perfectible human nature, which evolved by degrees from the simple, rough and lawless life of ‘savages’ to complex, polite and commercial societies. It involved every aspect of human life: as modes of subsistence improved, so did material conditions. The number and complexity of laws increased, and there was a growing refinement in the habits and manners of peoples, together with their sexual and family relations, passions, thoughts, sentiments and knowledge. The uniformity of the savage stage, where everyone engaged in the same activities as hunters and warriors, gave way to a growing division of labour that brought about an increasingly diversified organization of society as well as differences of personality. Diversity was a product of history.21 The framework of stages offered a grid in which the histories of peoples could be connected with the history of the species. The stadial scheme was a natural history, in that it was a system for classifying and describing creation. But it also indicated the natural course of the development of societies towards civilization. Historically, however, not every society had followed this natural course. Even Europe had been forced into an ‘unnatural and retrograde order’, whereby the development of commerce had preceded that of agriculture because of the feudal regime on the land – as Smith stated in the third book of An Inquiry into the Nature and Causes of the Wealth of Nations (1776). This suggests that stadial theory was, first of all, a conceptual model which could be separate from, and was even contrary to, the historical order. At the same time, however, it has to be understood – in common with the progress of opulence – as natural.

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Enlightenment’, History of Science, 27 (1989), 89–123; ‘The Science of Man’, in Cultures of Natural History, ed. Nicholas Jardine, James A. Secord and Emma C. Spary, (Cambridge, 1995), 208–32. Adam Smith, Lectures on Jurisprudence, ed. Ronald L. Meek, David D. Raphael and Peter G. Stein, (Oxford, 1978), 14. Christopher J. Berry, The Social Theory of the Scottish Enlightenment (Edinburgh, 1997); Daniel Carey, Locke, Shaftesbury, and Hutcheson: Contesting Diversity in the Enlightenment and Beyond (Cambridge, 2006).

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Furthermore, societies did not progress in the same rhythm. In the continuity of linear time, there were phases of acceleration and slowing down, which occurred in different periods and in different countries. John Millar, who had been Smith’s student in Glasgow, made this explicit in the ‘Introduction’ to the second edition of his Origin of the Distinction of Ranks in 1773: There is …, in human society, a natural progress from ignorance to knowledge, and from rude to civilized manners, the several stages of which are usually accompanied with peculiar laws and customs. Various accidental causes, indeed, have contributed to accelerate, or to retard this advancement in different countries.22

History was construed through a double operation of distancing, temporal as well as spatial. The time was that of the longue durée, but this longue durée was marked by discontinuities. The stages through which Smith or Millar ordered time and space represented a specific form of ‘decoupage de l’histoire’.23 The progress from one stage to the other was punctuated by fractures and leaps, at least before the development of agriculture. The achievement of civilization was neither a linear nor a simple process in Enlightenment historiography, and the Scots gave it different forms and shades of meaning. Most of them felt that with civilization came losses, and viewed their own age with ambivalence; by the final edition of Theory of Moral Sentiments even Smith, who had argued for the civilizing power of commerce, had to acknowledge that civilized societies were corruptible. So, the stadial model was not inherently normative for the Scottish literati. At the heart of their idea of progress lay unresolved tensions between competing logics.24 Scottish historians of civilization applied the comparative approach and sociological speculations of Montesquieu to history, combining them with Hume’s conception of the ‘uniformity of human nature’. Like Hume they considered that men in similar circumstances reacted in similar ways. Direct experience and the annals of history could account for ‘a uniformity of human motives and actions’ over time and space – and this regularity provided the necessary basis for the ‘science of man’. In Hume’s frame there was no room for heroes or the display of pure virtues, any more than there was for monsters, miracles and prodigies. His reference to the unreliable traveller in An Enquiry Concerning Human Understanding (1748) is particularly important in this context, as travel literature was one of the major sources for writing universal history – especially when it dealt with the ‘savage stage’, which did not produce written documents: 22

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John Millar, The Origin of the Distinction of Ranks; or, An Inquiry into the Circumstances which give rise to Influence and Authority in the Different Members of Society, ed. Aaron Garrett, (Indianapolis, 2006), 4. Jacques Le Goff, Faut-il vraiment découper l'histoire en tranches? (Paris, 2014). I have focussed on the Scottish debate about the limits of historical progress in my book on The Scottish Enlightenment. See also my ‘Barbarism and republicanism’, in Oxford History of Scottish Philosophy: The Scottish Enlightenment, ed. James A. Harris and Aaron Garrett, (Oxford, 2015), 323–60.

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Should a traveller, returning from a far country, bring us an account of men, wholly different from any with whom we were ever acquainted; men who were completely divested of avarice, ambition, or revenge; who knew no pleasure but friendship, generosity, and public spirit; we should immediately, from these circumstances, detect the falsehood, and prove him a liar, with the same certainty as he has stuffed his narration with stories of centaurs and dragons, miracles and prodigies. And if we would explode any forgery in history, we cannot make use of a more convincing argument, than to prove, that the actions ascribed to any person, are directly contrary to the course of nature, and that no human motives, in such circumstances, could ever induce him to such a conduct.25

The premise of this view was that ‘mankind are so much the same, in all times and places, that history informs us of nothing new or strange in this particular. Its chief use is only to discover the constant and universal principles of human nature, by showing men in all varieties of circumstances and situations …’.26 In this way, Hume provided the concept of a uniform human nature, which dictated in turn what would count as reliable evidence. He severely limited the credit to be given to eyewitnesses, whose reports had always to be consistent with what experience had established as plausible.27 Discovering ‘the constant and universal principles of human nature’ meant to recognize human natural unsociability. Hume’s traveller would not be believed if he reported that the peoples he encountered were naturally virtuous and benevolent. Indeed, it was not ‘friendship, generosity, and public spirit’ which were inherent in human nature, but ‘avarice, ambition, or revenge’. Eradicating vice from human nature was a mere dream: the only possible remedy for taming men’s asocial passions was to instil useful vices in place of harmful ones – as Hume proposed a few years later in his Political Discourses.28 But on the same ‘constant and universal principles’, Hume could also argue for the necessity of society and the universal capacity for sympathy, while denouncing the fiction of the social contract.29 As society advanced, ‘the more sociable men become’.30 The historians of civilization took up and developed these issues. Hume’s concept of the uniformity of human nature was married to a ‘natural history’, according to which humans formed society ‘naturally’, and thus could move through 25

26 27 28 29 30

David Hume, An Enquiry Concerning Human Understanding (1748), in Enquiries Concerning Human Understanding and Concerning the Principles of Morals. Reprinted from the Posthumous Edition of 1777, ed. by L. A. Selby-Bigge, 3rd ed. with revisions by P. H. Nidditch, (Oxford, 1975), Sect. VIII, ‘Of Liberty and Necessity’, 84. Ibid., 83. Ibid., Sect. X ‘Of Miracles’, 109–31, where Hume clearly stated ‘that no testimony is sufficient to establish a miracle’, and so it could not be taken as ‘a proof’ per se (quotations 115–16, 121). David Hume, ‘Of Commerce’ (1752), in his Essays Moral, Political, Literary, ed. Eugene F. Miller, (Indianapolis, 1987), 263. Hume, ‘Of the Original Contract’ (1742), in ibid., 465–87. Hume, ‘Of Refinement in the Arts’ (1752, originally entitled ‘Of Luxury’), in ibid., 271.

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stages of social development without the historian having to postulate a moment of rupture between nature and society. Stadial history became the way to bypass the natural (un)sociability problem. By postulating that nature and society were in a continuum, it was possible for Smith to think of a ‘natural order’, and a ‘natural progress of opulence’. Ferguson, Millar, Robertson and even a polygenist like Henry Home, Lord Kames, all grounded their histories of civilization on a firm rejection of Rousseau’s pre-social man in the state of nature. The history of the human species began with ‘savages’ who, far from being solitary, lived together in society, even if in a very imperfect form. Humanity followed a progressive path without a clear divide between the natural and the social. They generally agreed with Smith, who, in opposing Rousseau’s view of the origin of private property, had erased with one stroke the division between natural and civil man, with its ambiguous consequences. For Smith, private property had certainly increased inequalities and subordination, but these were the driving forces of human progress. In line with Smith, most of the Scots did not postulate a division between a pre-social and a civil era, between nature and history. The origin of property, which they re-allocated to the herding stage, became the turning point in the history of men, who had always been united in society. In this, the historians of civil society could refer to the authority of Montesquieu, as Ferguson did explicitly,31 when he said that humankind should be considered ‘in groups’, because it had always existed as such, that society appeared to be as old as the individual, and that the use of language was universal. However, even more than Montesquieu, it was Buffon who added a social inclination to the definition of man as a natural being. Man was distinguished by physical and moral characteristics, and by a need for society, outside of which he would never be able to survive. As Buffon had been explaining since 1749, man was man only insofar as he was able to coexist with other human beings.32 This was the fundamental distinction from animals, which simply lived ‘en troupe’.33 ‘Savage’ man possessed the seeds of ‘civilized’ man, in the sense that the process of civilization produced nothing that was not already in human nature. While perfectibilité was, for Rousseau, the specific character of the human species, for Buffon, human progression did not need any external or accidental circumstances to set it in motion. Man was the ‘demiurge of himself’: immersed in society from the very outset, he realized his own end through it.34

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Recent scholarship has questioned the interpretation of Ferguson as a lone critic of commercial society, stressing instead his proximity to Smith and Hume in the defence of civil society and British commercial order: Craig Smith, Adam Ferguson and the Idea of Civil Society (Edinburgh, 2019). ‘L’homme en un mot n’est homme que parce qu’il a sû se réunir à l’homme’. Georges-Louis L. Buffon, Histoire naturelle, générale et particulière, 36 vols. (Paris, 1749–1789), vol. IV (Paris, 1753), ‘Discours sur la nature des Animaux’, 96. Ibid., 90. See Michèle Duchet, Anthropologie et histoire au siècle des Lumières (1971), with a Postface by Claude Blanckaert, (Paris, 1995), 245.

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On the basis of these premises, Ferguson stated that art could not be opposed to nature, because it was ‘itself natural to man’. Destined to invent and excogitate, man was in some measure the ‘creator of his condition’. In so doing, the distinction between nature and artifice upon which Rousseau had constructed his entire system was annihilated: civilization did not produce anything which was not already contained in human nature. Smith, Robertson, Kames and Millar shared Ferguson’s belief that art and industry were natural to humankind. Stadial history was a natural history of the gradual formation of society, progressing by artifice towards civilization. If we admit that man is susceptible of improvement, and has in himself a principle of progression, and a desire of perfection, it appears improper to say that he has quitted the state of his nature, when he has begun to proceed …; like other animals, he only follows the disposition and employs the powers that nature has given.35

From this point of view, human nature emerged by way of contrast with animal nature. The capacity to think, to communicate, to progress and invent oneself were the essential characteristics of man’s superiority, as Buffon had stated in the second volume of his Histoire naturelle de l’homme, published in 1749. Only humans could know themselves.36 Unlike Rousseau, for whom language was an artificial instrument, Scottish historians of civilization (again after Buffon) argued that all human beings could speak and that both ‘savage’ and ‘civil’ man spoke naturally. They organized themselves in societies and could live in every type of climate. Their progress was cumulative and transmittable to the species, being inherent in human nature. By contrast, animals could neither improve nor invent anything: if tamed, their amelioration was sterile, as it could not be transmitted to the offspring, so that breeders were condemned, at each generation, to restart their work from scratch.37 This demonstrated the substantial difference of human from animal nature. According to Buffon, the faculties of the most ‘savage’ man were separated from those of the most perfect animal by an infinite distance, articulated by thought and word. Though capable of acting like men, orang-utans, so similar to human beings in their physical constitutions, were not able to perform any human act – as the ‘Nomenclature des singes’ clearly stated in 1766.38 In the course of the prolonged redaction of his Histoire naturelle, lasting forty years, Buffon elaborated several responses to Rousseau, whom he labelled ‘one of 35 36

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Adam Ferguson, An Essay on the History of Civil Society (1767), ed. Fania Oz-Salzberger, (Cambridge, 1995), 14. Linnaeus had chosen the Latin translation of the Delphic maxim ‘Nosce te ipsum’ for defining the genus ‘homo’ in his Systema Naturae since 1735. This became, in 1758, the attribute of the ‘homo sapiens’. Rousseau’s Second Discourse also opened on the Delphic maxim. Buffon, Histoire naturelle, vol. XXI (1779), ‘Le perroquet’, 72. However, in this period many experiments were attempted in order to improve animal – and human – breeds. See William Max Nelson, Making men: Enlightenment ideas of racial engineering. The American Historical Review, 115:5 (2010), 1,364–1,394; Claude-Olivier Doron, L’homme altéré. Races et dégénérescence (XVIIe–XIXe siècles), (Paris, 2016), esp. Chapters 4 and 5. Buffon, Histoire Naturelle, vol. XIV (1766), ‘Nomenclature des singes’, 30–2.

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the most ferocious censors of humanity’. In 1758, in the volume on ‘carnivorous animals’, Buffon invited readers to ‘discuss’ the ‘real state of nature’ as recorded in travel literature, rather than to ‘dispute’ about an ideal. In his words: Instead of disputing, let us attend to facts: We see not the ideal, but the real state of nature. … The state of pure nature is a known state: It is that of the savage living in the desert, but living in family, knowing his children, and being known by them, using words, and making himself understood. … Man, in every situation, and under every climate, tends equally toward society. It is the uniform effect of a necessary cause; for, without this natural tendency, the propagation of the species, and, of course, the existence of mankind, would soon cease.39

For Buffon the state of nature was a well-known condition and not a historical fiction: the ‘homme en pure nature’ was nothing other than a ‘sauvage en famille’. All human actions were related to society, in every condition and climate40. Man could not survive without a family, as the very constitution of human body clearly showed. It was thus useless to multiply ‘raisonnements hypothétiques’ in order to ‘éclaircir la Nature des choses’: society was neither artificial nor contractual, but it was ‘fondée sur la nature’, as it was essential to the propagation of the species.41 Ferguson borrowed Buffon’s arguments as well as his rhetoric. Like Buffon, he denounced the conjectural character of Rousseau’s system, to which he opposed the ‘facts’, ‘observations’ and ‘experiments’ in the natural history of humankind. Significantly, this was the point of departure for An Essay on the History of Civil Society: Natural productions are generally formed by degrees. … Not only the individual advances from infancy to manhood, but the species itself from rudeness to civilization. … In every other instance, … the natural historian thinks himself obliged to collect facts, not to offer conjectures. … He admits, that his knowledge of the material system of the world consists in a collection of facts, or at most, in general tenets derived from particular observations and experiments. It is only in what relates to himself, and in matters the most important, and the most easily known, that he substitutes hypothesis instead of reality42. 39

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Buffon, Histoire naturelle, vol. VII (1758), ‘Les animaux carnassiers’, 29–30. For the English translation of this passage, see Natural History, General and Particular, by the Count of Buffon, Translated into English. … By William Smellie (London, 2nd ed., 1785), vol. IV, 185–9. ‘Toutes les actions qu’on doit appeler humaines, sont relatives à la société’. Buffon, Histoire naturelle, vol. XIV (1766), ‘Nomenclature des singes’, 38. ‘C’est un effet constant d’une cause nécessaire puisqu’elle tient à l’essence même de l’espèce, c’est-àdire à sa propagation’. Buffon, Histoire naturelle, vol. XIV, 29. See Blanckaert, ‘La perfectibilité, sous conditions?’. Ferguson, Essay, 7–8.

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Ferguson recognized that the ‘desire of perfection’ was the specific feature that made humanity a historical – and progressive – species. However, his view was far from the paradoxical and complex character of Rousseau’s conception of perfectibilité. As Ferguson would emphasize in his Principles of Moral and Political Science in 1792, Rousseau’s natural man, deprived of reason, language and moral judgement, was a ‘monster too odious for nature to endure’.43 By contrast, Ferguson’s definition of humankind included, from the outset, the shape of the body and the erect position, as well as moral sentiment, the faculty of reasoning and the ability to communicate in an articulated language. Man was separated from other animals in that he belonged to ‘a distinct and superior race’, and that superiority was maintained ‘in his rudest state’ as well as ‘in his greatest degeneracy’. As Buffon had also pointed out, ‘he is in short a man in every condition’.44 The central point was, once again, to neutralize the core of the Second Discourse, which separated the ‘natural man’ from the ‘civil’ and the ‘historical’ man. Ferguson countered Rousseau’s ‘pyrrhonisme funeste’, based on eloquent but fanciful hypotheses, with the ‘vrais matériaux’ and positive evidence of human history, as the ‘Avant-Propos’ of the first French translation of the Essay emphasized.45 Over the years, Ferguson taught his students that Rousseau’s state of nature was ‘altogether irrational and subversive of History and Science’, while arguing that the latest step in the development of society was ‘as natural as the first’.46 ‘Man’s progressive nature’, as he labelled it in his Principles, expressed itself over time and through accumulation, so that the philosopher had to focus on the whole human trajectory rather than dwelling on its origins or any stationary situation: ‘the state of nature or the distinctive character of any progressive being is to be taken, not from its description at the outset, or at any subsequent stage of its progress; but from an accumulative view of its movement throughout’.47

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Adam Ferguson, Principles of Moral and Political Science; Being Chiefly a Retrospect of Lectures delivered in the College of Edinburgh, 2 vols. (Edinburgh, 1792), vol. I, p. 55. See Iain McDaniel, Adam Ferguson in the Scottish Enlightenment: The Roman Past and Europe’s Future (Cambridge, MA, 2013), 67 ff. Ferguson, Essay, 11. Adam Ferguson, Essai sur l’histoire de la société civile, trans. Claude-François Bergier, 2 vols. (Paris, 1783), vol. I, pp. v–vii. The ‘Avant-Propos’, probably written by Alexandre-Joseph Meunier, who collaborated on Bergier’s translation, claimed that it was much easier, when speaking about human nature, ‘de construire de brillantes hypotheses que de rassembler les vrais matériaux qui doivent composer son histoire’. For a more comprehensive discussion of contemporary reactions, see Iain McDaniel, ‘Philosophical history and the science of man in Scotland: Adam Ferguson’s response to Rousseau’, Modern Intellectual History, 10 (2013), 543–68, esp. 553–4. Adam Ferguson, ‘Lectures on Pneumatics and Moral Philosophy’, Edinburgh University Library Special Collections MS, Papers of Professor Adam Ferguson, Dc.1.84. See Lectures of 20, 22 and 26 November 1776; 12 November 1783 and 16 November 1784. See also Ferguson’s unpublished essay ‘Of Nature and Art’, in The Manuscripts of Adam Ferguson, ed. Vincenzo Merolle, Robin Dix and Eugene Heath, (London, 2005), 243–7. Ferguson, Principles, vol. I, pp. 190–2. ‘Man’s progressive nature’ was opposed to ‘stationary’ natures and was to be understood as ‘subject to vicissitudes of advancement or decline’.

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For Ferguson, human nature was at once a subject of history, moral philosophy and physical science: ‘before we can ascertain rules of morality for mankind, the history of man’s nature … should be known’48. The theorist of civilization was a natural historian, and, as such, he was ‘obliged to collect facts, not to offer conjectures’. Ferguson simply could not, as Rousseau claimed he could, ‘lay the facts aside’. MONBODDO’S HISTORY OF MAN AND THE ‘PERFECTIBILITY’ MODEL

No more did Monboddo ‘lay the facts aside’. Throughout his work, Monboddo searched for evidence and obsessively multiplied the examples and cases in support of his argument. His texts were full of erudite notes and references to ancient and modern philosophers, anatomists as well as travellers – to whose works he had ready access as curator of the Advocates Library in the 1750s.49 He also wrote to ask for new proofs to a large network of correspondents all over the world, ranging from British merchants and Dutch East India Company (VOC) sailors on oceanic travels to physicians and naturalists, including Carl Linnaeus himself.50 Alongside this preoccupation with historical evidence, however, Monboddo took up and developed the arguments advanced by Rousseau’s Second Discourse for rejecting the civilization model. More than anyone in Scotland, Monboddo endorsed Rousseau’s viewpoint on the existence of a pre-social state of humankind. He employed perfectibility as a key concept for an alternative ‘history of man’, by explicit rejection of Hume’s assumption of a uniform human nature. His was very much a ‘natural history’ of early man, conceived as a ‘species’, but distinguished from animals by the capacity to acquire superior mental faculties, including morality and intellect. Perfectibility made possible the acquisition of sociability, but at the same time permitted humans to live at different levels of humanity. From the 1770s until his death in 1799 Monboddo published two monumental, wide-ranging works, which he intended as major contributions to the ‘science of man’: The Origin and Progress of Language (1773–1792) and Antient Metaphysics (1779–1799), each consisting of six very long and very repetitive volumes. Despite the different emphases of their titles, the two works overlapped both in their topics 48

49 50

Adam Ferguson, Institutes of Moral Philosophy. For the Use of Students in the College of Edinburgh (1769), 2nd ed. (Edinburgh, 1773), 11; Ferguson, ‘Lectures on Pneumatics and Moral Philosophy’, 17 January 1780, ff. 384; and Principles, vol. I, pp. 1–6. See Wood, ‘The Science of Man’, 205. On the connections between natural philosophy and moral philosophy in Ferguson’s teachings, see Bruce Buchan and Silvia Sebastiani, ‘“No distinction of Black or Fair”: The natural history of race in Adam Ferguson’s Lectures on Moral Philosophy’, Journal of the History of Ideas, 82:2 (2021), 207–29. The period when Monboddo was one of the curators (1751–1756) of the Advocates Library almost corresponded to Hume’s tenure as Keeper (1752–1757). I have explored this issue in ‘Monboddo’s “Ugly Tail”: The question of evidence in Enlightenment sciences of man’, History of European Ideas, 48:1 (2022): 45–65.

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and in their method. In opposition to his fellow Scots, Monboddo censured modern philosophy for being seized by ‘a desperate aversion to mind, and a passionate love for matter’. He aimed to overturn materialist and mechanical European philosophy from Hobbes and Locke to Hume, whom he considered ‘the greatest enemy of his country’. Monboddo took to an extreme the consequences of conceiving of man as historical and perfectible. The prefaces to the third and fourth volumes of Antient Metaphysics, respectively dealing with the ‘History and Philosophy of Men’ and with the ‘History of Man’, provided the framework for his historical enterprise. In volume three Monboddo explained the relation between history and philosophy: ‘As all Philosophy, whether of Man or of Nature, must arise from facts, I have begun this Philosophy of Man with his History’. He made history – the ‘facts’ – the necessary laboratory for the study of the ‘the whole Species’, from the ‘birth of human nature … to its state of maturity’.51 He clarified, however, that he was not interested in history as such, but in the general laws which could establish a science of humankind: For my own part, I set no value upon any Facts either of the History of Nature or of Man, that do not tend to establish some System of Philosophy, or from which some Science can be drawn.52

In a Buffonian vein, Monboddo here hinted at two different temporalities, one relating to man and the other to nature. He did not develop this point, but instead stressed the hierarchy between different kinds of knowledge: if history came first, it was because facts were instrumental to establish philosophical systems. His ambition was not to write a natural history, but to explain ‘the causes and principles of things’, that is to make ‘philosophy’.53 The science of society had to be connected with the science of the mind. Monboddo returned to the question of the history’s status in volume four, re-asserting and specifying his own method: The subject of this volume is the History of Man, by which I mean, not what is commonly called History, that is the History of Nations and Empires, but the History of the Species Man, a work of extent and variety …54

If we stop at this point of the quotation, Monboddo’s rebuttal of traditional political history could be taken as an accurate summary of the new historiographical 51

52 53 54

James Burnet, Lord Monboddo, Antient Metaphysics, or the Science of Universals, 6 vols. (Edinburgh, 1779–1799). See Volume Third. Containing the History and Philosophy of Men (1784), iii. In his manuscript annotations, possibly in view of a second edition, Monboddo corrected the plural ‘men’ of the title of the volume with the singular ‘man’. NLS, MSS.25255. Monboddo, Antient Metaphysics, vol. III (1784), iii. Monboddo, Antient Metaphysics, vol. I (1779), iv. Monboddo, Antient Metaphysics … Volume Fourth. Containing the History of Man (1795), Preface.

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approach, endorsed by a great part of the Scottish literati, including Smith, Ferguson, Kames, Millar or Hume. But Monboddo’s emphasis on ‘variety’ was a warning that revealed his intention to dispute their very method. His reasoning became explicit in the explanation following the semicolon: for man is not only distinguished from the other animals of this earth, by being the noblest animal; but he is also the most various, not only in his composition, … but also by having passed through a greater variety of states than any other animal we know.55

Monboddo used ‘variety’ as against ‘uniformity’, and considered it as the very characteristic of the human species in every stage of the social life. By insisting on human variety, Monboddo undermined one of the basic preconditions on which Smith, following Hume, had grounded his theory of historical progress through stages: the uniformity of human nature. What I suggest here is that Monboddo’s large and inclusive definition of humanity has to be read as a deliberate response to ‘those who believe that men are, and always have been, the same in all ages and nations of the world, and such as we see them in Europe’.56 Like Rousseau, Monboddo accused his contemporaries of projecting onto the ‘savage man’ the distorting image of the ‘civilized man’, and treating the modern European as a universal model. His perspective was irreconcilable with the logic of Hume’s reasoning on ‘Liberty and Necessity’ and on ‘Miracles’ in the Enquiry Concerning Human Understanding. In direct contradiction of Hume’s recommendations, Monboddo’s volumes were full of reports of prodigies, oracles and wonders, peoples with tails, mermaids, blemmys with no heads and eyes in the breath, cyclopes and other ‘monsters’. The point at stake was how to establish evidence and what value had to be given to testimony. An advocate and from 1767 a judge of the Court of Session of Edinburgh, Monboddo used, in his philosophical works, the same inquisitive approach that he practised at the bar and in the court. He even had recourse to formulae such as ‘I could produce legal evidence’.57 Historiography has paid no attention to Monboddo’s legal career, while dealing with his anthropological view. In so doing, a crucial point has been missed: Monboddo rooted his science of man in a system of legal proof. When several witnesses, independent of each other, reported the same observation, it was necessary, Monboddo argued, to surrender to the evidence of its truthfulness – otherwise we must resolve ‘to believe but what we have seen’58. This reasoning had striking consequences for the admissibility of evidence for human variety. 55 56 57

58

Ibid., emphasis added. Monboddo, Of the Origin and Progress of Language, 6 vols. (Edinburgh, 1773–1792). See vol. I (2nd ed., 1774), 261. Monboddo, Origin and Progress of Language, vol. I (2nd ed. 1774), 262–3. On the Lords of the Court of Session and their methods of inquiry, see Nicholas Phillipson, The Scottish Whigs and the Reform of the Court of Session 1785–1830 (Edinburgh, 1990). Monboddo, Antient Metaphysics, vol. III (1784), 250. See Sebastiani, ‘Monboddo’s “Ugly Tail”’.

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Monboddo explained human variety in three different but connected ways. First, man was various in his composition, in the sense that he was ‘made up by contradictions’. As a ‘disciple of Aristotle’, he defined man as ‘both social and not social’, ‘gregarious and not gregarious’, ‘political, and not political’, ‘biped … and not biped’, with or without intellect, ‘as much mixed in mind, as … in body’.59 Second, variety was intended in a transformist sense. Monboddo claimed that humans changed significantly over time (and space) and took many different forms, passing from a quasi-vegetable condition through the ‘orang-utan’ up to the ‘man of science’ at the ‘summit’ of human nature – which he historically identified either with ancient Greeks or with the ancient Egyptians. This transformation concerned the mind as well as the body. Third, variety also denoted a natural distinction between individuals. Monboddo believed it ‘undeniable’ that ‘there is a difference of natural parts among men, and that all men by nature are not fit for all things’. He even claimed to be ‘equally certain’ that ‘a great part of mankind are by nature doomed to be slaves; and that, therefore, there is nothing contrary to nature in the state of slavery’.60 Each of these connotations of ‘variety’ was a significant challenge to the civilization model, which allowed a more restricted definition of humanity and considered diversity to be the result of historical progress and of the division of labour in advanced societies. But Monboddo’s emphasis on human natural inequality also marked the point of fracture with Rousseau, whom he had otherwise taken as his guide. As I have argued elsewhere, it was on this hierarchical and aristocratic view that Monboddo rooted his defence of slavery – a stance that he also maintained as a judge of the Court of Session, where he upheld its legality.61 At the same time, Monboddo insisted on the fact that all men belonged to the same species. He rejected in the clearest terms the polygenetic views adopted by Hume and advocated by his fellow judge at the Court of Session Kames in his Sketches of the History of Man, published in 1774, a year after the first volume of The Origin and Progress of Language.62 Monboddo also took issue with ‘the two great naturalists of this age’, Buffon and Linnaeus. He censured Linnaeus for having arbitrarily split the genus ‘homo’ into two different species, the Sapiens and the Troglodytes (or 59 60 61

62

Monboddo, Antient Metaphysics, vol. III (1784), 62. Monboddo, Antient Metaphysics, vol. IV (1795), 178. Monboddo was one of the judges in the ‘Knight case’ in 1778, in which he dissented from the decision that slavery was contrary to Scots Law. See Silvia Sebastiani, ‘Challenging boundaries. Apes and savages in Enlightenment’, in Simianization. Apes, Gender, Class, and Race, ed. Wulf D. Hund, Charles W. Mills and Silvia Sebastiani, (Berlin, 2015), 105–37; and ‘Monboddo’s “Ugly Tail”’. On the Enlightenment legal debate about slavery in Scotland, see John W. Cairns, Law, Lawyers, and Humanism: Selected Essays in the History of Scots Law (Edinburgh, 2015). On the Scottish debate about polygenesis and its implication in historiography, see Sebastiani, The Scottish Enlightenment. On Kames’ and Monboddo’s anthropologies, see Robert Wokler ‘Apes and races in the Scottish Enlightenment: Monboddo and Kames on the nature of man’, in Philosophy and Science in the Scottish Enlightenment, ed. Peter Jones, (Edinburgh, 1988), 145–68; Aaron Garrett, ‘Human Nature’, in The Cambridge History of Eighteenth-century Philosophy, ed. Knud Haakonssen, (Cambridge, 2006), 160–233, esp. 180–202.

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orang-utan), from the tenth edition of his Systema Naturae (1758). It was within the unique ‘species’ of man – defined in Buffonian terms by the capacity of generating fecund offspring – that variety was to be recognized.63 But while Monboddo shared Buffon’s definition of species, he criticized him sharply for rejecting Linnaeus’ system of classification. This was to renounce the very possibility of creating a science, since ‘there can be no science of individuals’.64 In Monboddo’s view, Buffon’s Histoire naturelle had collected many interesting observations, some of which he had transcribed in his books,65 but it did not draw general rules or even suitable conclusions. So, it could not be a model for any philosophical system. Indeed, Monboddo singled out for criticism the narrow definition of humanity that Ferguson had drawn from Buffon. In contrast with Ferguson’s claim, the biped posture, rationality, sociability and language were not natural to man, but the product of ‘acquired habits’, as were moral sense and imagination, or religion and government. Man was made by degrees and slowly transformed himself and his society over time. His natural constitution was indeed very low, but his perfectibility was a promise of progress. Thus is man formed, not however at once, but by degrees, and in succession: for he appears at first to be little more than a vegetable, hardly deserving of the name of a Zoophÿte; then he gets sense, but sense only, so that he is yet little better than a muscle; then he becomes an animal of a more complete kind; then a rational creature, and finally a man of intellect and science, which is the summit and completion of our nature.66

The range of human possibilities was thus extremely wide and unfixed, and orangutans were far from representing the lowest state of human condition. On the contrary, they were already quite advanced in social life, being gregarious and biped. To describe the previous state of solitude, Monboddo invoked feral children, epitomized by two celebrated contemporary cases that he studied in detail: Peter the Wild Boy, caught in the woods of Hanover in 1724 and then transferred to the court of King George in London, and Marie Angélique Le Blanc, the savage girl of Champagne, who was found in 1731 and ended her life in a convent in Paris. When first discovered, both lived in isolation, were incapable of speaking, crawled on all fours, and fed themselves with grass and moss, or by devouring animals raw. If Peter’s experience indicated how difficult was the process of learning to articulate 63 64 65 66

Monboddo, Origin and Progress of Language, vol. I (2nd ed. 1774), 304 ff. Monboddo, Origin and Progress of Language, vol. I (2nd ed. 1774), 315. See Iain Maxwell Hammett, ‘Lord Monboddo’s Of the Origin and Progress of Language’, PhD thesis, University of Edinburgh, 1985, Chapter 11, pp. 204 ff. Monboddo, Origin and Progress of Language, vol. I (2nd ed. 1774), 183. For an almost identical statement, which concluded on the decline of man after having reached the summit of his nature, see Antient Metaphysics, vol. III (1784), 25. The Lucretian and Horatian tone of this passage cannot be missed, while Monboddo also referred to the controversial Telliamed (1748) as a modern authority, for which, see Sebastiani, ‘Monboddo’s “Ugly Tail”’.

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words, that of the ‘savage girl’ revealed that language developed ‘from natural cries’ and guttural sounds. Taken together, they showed the close connection between the capacity for speech and the progress of human mind. Their cases were instrumental to Monboddo’s purpose: not only did they provide the proofs of man’s pre-social life, but they also allowed the philosopher to study the mechanisms of the universal progress of the human species. The Scottish judge spoke about ‘facts’ and ‘living examples’, which could satisfy ‘even the men of experiment, who will believe nothing but what falls under the evidence of their senses’.67 For Buffon and Ferguson, by contrast, the cases of wild children, caught in a condition of solitude, were ‘a singular instance, not a specimen of any general character’, so they did not prove Monboddo’s point.68 Monboddo (following Rousseau one more time) inverted the terms of the question: society was necessary to certain animals, like bees, ants or beavers, but not to men, who could survive even in isolation. Humans distinguished themselves from other animals in that they were not bound by instinct. Though man is by his natural bent and inclination disposed to society, like many other animals, yet he is not by natural necessity social, nor obliged to live upon a joint stock, like ants or bees; but is enabled, by his natural powers, to provide for his own subsistence.69

The speculations of modern philosophers, who claimed that man was the same animal, even if he passed through various stages and conditions, were not only absurd, but even ‘contradicted’ by ‘the whole history of mankind’. There was a discontinuity in human nature, and this discontinuity depended on history. Those superior faculties of mind, which distinguish our nature from that of any other animal on this earth, are not congenial with it, as to the exercise or energy, but adventitious and acquired, being only at first latent powers in our nature, which have been evolved and brought into exertion by degrees, in the course of our progression …, from one state to another.70

Rational man was born of the animal, and reason derived from animal sensation. Monboddo employed two verbs to capture this ‘amazing’ human perfectibility: 67 68

69

70

Monboddo, Antient Metaphysics, vol. III (1784), 67. On Peter, see Richard Nash, Wild Enlightenment. The Borders of Human Identity in the Eighteenth Century (Charlottesville, 2003), 131ff. Buffon, Histoire naturelle, vol. VII (1758), ‘Les animaux carnassiers’, 29; Ferguson, Essay, 9. On the broader Enlightenment debate, see among an increasing literature, the pioneering study by Franck Tinland, L’Homme sauvage: ‘Homo ferus’ et ‘homo sylvestris’: de l’animal à l’homme (Paris, 1968). Monboddo, Account of a Savage Girl, ‘Preface’, xvi, emphasis in the original. See Julia Douthwaite, ‘Rewriting the savage: the extraordinary fictions of the “Wild Girl of Champagne”’, EighteenthCentury Studies, 28:2 (1994–1995), 163–92; and The Wild Girl, Natural Man, and the Monster: Dangerous Experiments in the Age of Enlightenment (Chicago, 2002). Rousseau had similarly referred to feral children in his notes III and X of the Second Discourse. Monboddo, Account of a Savage Girl, xvii, emphasis in the original. See also Monboddo’s correspondence with James Harris, and especially the letter of 31 December 1772, in William Angus Knight, Lord Monboddo and Some of His Contemporaries (London, 1900), 73.

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‘to tame’ – directly related to breeding – and ‘to humanize’ – which stressed that humanity had to be acquired in a long process. Man himself was originally a wild savage animal, till he was tamed, and, as I may say, humanized, by civility and arts.71

Man was not born human: he became human. Language, the noblest and most relevant of human arts, was one of the latest human inventions, and it was the product of society. Monboddo thus proposed a solution to Rousseau’s open dilemma, by opting for the primacy of society over language.72 In comparison to Rousseau, Monboddo saw the movement towards society as the consequence not so much of chance and external catastrophes, as of needs: increases in population caused parallel increases in wants and occupations, as well as a growing necessity of defence. In the attention he gave to population growth, he was (for once) in agreement with the analysis carried out by Smith and other historians of civilization, who made population the primum movens of historical progress. The ‘cause of change … from a solitary or at least an animal not political to a social and political animal’ was ‘no other than the necessity of human life’.73 This seems to me a significant issue, which led Monboddo to place human progress under the rubric of necessity. ‘Whether, by the improvement of our faculties, we have mended our condition, and become happier’ remained, however, an open question for Monboddo.74 According to him, moral and intellectual progress was offset by physical decline, in reverse cycles. His insistence on the parallel progress between the individual and the human species ended up condemning the species to the inescapable cyclical life of the individual. Monboddo seemed keen to follow Rousseau in viewing human artifice as inherently problematic. The perfectibility model entailed relativism: humans achieved different levels of artifice, all of them open to abuse. CONCLUSION

Along with Monboddo, Smith, Ferguson, Kames and Millar also thought that the progress of civilization led man to ‘humanize himself’. But they ascribed different connotations to the process of humanization. Monboddo gave the verb ‘to

71 72

73 74

Monboddo, Origin and Progress of Language, vol. I (2nd ed. 1774), 144, emphasis in the original. Monboddo made clear that language was ‘furnished not by God and nature, but by man himself’, while he highly praised Smith’s dissertation on the formation of languages. See Origin and Progress of Language, vol. IV (1787), 184. Origin and Progress of Language, vol. I (2nd ed. 1774), 382. Monboddo, Account of a Savage Girl, xvii, quoting Rousseau. See also Monboddo’s letter to John Hope, dated 29 April 1779, where he maintained that ‘it is undoubtedly the improvement that men have made in Knowledge, by the invention of Arts, that has been the cause of all their misery’ (in Knight, Lord Monboddo, 105).

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humanize’ a literal sense. This meant the transformation from an original animal condition – Horace’s ‘mutum et turpe pecus’, which was the epigraph of the first volume of his Origins and Progress of Language – to humanity in the sense of ‘men such as we’. All the major characteristics distinguishing the human species from other animals, such as society, language, moral sense, religion or government, were the result of a slow and gradual process of acquisition. Perfectibility was precisely the process through which man accomplished himself and became fully human. As a result, the gulf between the ‘primitive’ and the ‘civilized’ man was widened dramatically. By contrast, the sense that the historians of civilization attributed to ‘humanization’ concerned the softening of manners in the progression from rudeness to civil society. It meant ‘humane’. It described the historical process culminating in the modern ‘man of feeling’. In the stadial scheme, together with the improvement of material conditions, man developed sentiments of sympathy and a capacity for conversation and exchange, which were very feeble in his primordial state. The greater influence of women in advanced society refined his manners, and softened his habits.75 Smith, Ferguson, Robertson, Kames and Millar valued this process differently, but they all rooted it in the very nature of man. Man transformed himself and his society, but he was, in any time and space, identifiable as a superior being, gregarious and capable of thinking and speaking. Whereas Monboddo considered that the ‘progress of our species’ started ‘from the mere animal’, thereby stressing the discontinuity of human nature, Ferguson asserted that ‘the beginning of our story was nearly of a piece with the sequel’.76 Both the civilization and the perfectibility models insisted on the historicity of humankind, and both aimed to trace the natural history and progress of man. But they prompted different, and even rival, historical accounts, one centring on the long course of development of the human species in society and the other promoting a version of physical anthropology, which emphasized the variety of humankind.77 The civilization model, by annihilating the hiatus between the natural and the artificial, allowed for analysis of human interaction within the broad category of society. Its priority was to conceptualize the social. By contrast, the perfectibility model put much effort into the attempt to characterize the conditions of humankind in its ‘natural’ and ‘brutish’ state, and emphasized the divide between nature and history. What the perfectibility model did was enable a more explicit recognition of human variability, which in turn made it possible to engage more closely with the nonEuropean world, instead of reducing it all to points on a single spectrum of stages 75 76 77

For a pregnant summary of this question, see Barbara Taylor, ‘Enlightenment and the uses of woman’, History Workshop Journal, 74 (2012): 79–87. Monboddo, Account of a Savage Girl, xvii–xviii; Origin and Progress of Language, vol. I (2nd ed. 1774), 142–50; Ferguson, Essay, 11. See Wokler, ‘Apes and races in the Scottish Enlightenment’.

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of social development.78 The historians of civilization, who stressed the uniform characteristics of ‘savages’, found it hard to acknowledge human variety, making civilization a blunt instrument of European superiority. Monboddo’s anthropology, instead, refused to reduce man to the European model and made variability the hallmark of the human species. However, the emphasis on human variety was also fraught with dangerous consequences, above all in creating space for hierarchical distinctions between individuals. Monboddo’s world of human diversity was indeed peopled by superior and inferior classes of men. The new concepts of civilization and perfectibility, at the core of the Enlightenment debate, each contributed to locating the ‘science of man’ at the centre of the map of knowledge, but they did not solve the question of human inequality. 78

This point is made by Tim Ingold at the outset of his article on ‘Humanity and animality’, in Companion Encyclopedia of Anthropology (London, 1994), 14–32, referring to Monboddo at 14–17.

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10 Kant on History, or Theodicy for Mortal Gods Chris Meckstroth

INTRODUCTION

In his contribution to this volume, Quentin Skinner highlights Hobbes’ move away from certain renaissance notions of timeliness as a characteristic virtue of good rulers and towards the general principles of a purported science of politics. Whereas mirrorsfor-princes, for instance, had aimed to cultivate the prudence of rulers expected to face a succession of challenges and opportunities unfolding in the course of human events, Hobbes’ theory of the state gives an impression of aspiring to leave behind the trials and tribulations of this sort of life lived in uncertain, political time, by building something permanent, through artifice, that might escape the ebb and flow of fate, even nearly of mortality. One way of seeing this is as a shift away from a focus on the first-person perspective of the ruler as agent, acting in a specific context and bearing a certain character, to one on the impersonal legitimating features that constitute the state as institution. This is not only a contrast of natural and artificial persons. It is also that between considering a ruler either from the internal perspective of a human subject engaged in the activity of deciding and judging (for themselves), or else primarily from the outside, to show for instance how their authority might be abstractly and impartially established (for all). This reflects long-standing genre differences between works of renaissance humanism and treatises of philosophy and law. But if Hobbes’ state was still a sort of person, then what would it mean to think also from the first-person point of view of that collective and artificial agent? And what role would time play then? Although Hobbes thought deeply about reasoning and deliberation, his core claims for politics were less about how a good ruler should deliberate regarding their duties, and more about denying any right of subjects to second-guess the sovereign by engaging in that sort of deliberation for themselves.1

I thank Peter Niesen, John Robertson and anonymous reviewers for helpful comments on earlier drafts. 1

Thus, for instance, those things held to ‘Weaken, or tend to the Dissolution of a Common-wealth’ in Leviathan, XXIX were not the sort of conjunctural factors one finds in Machiavelli, but doctrines opening the door to private deliberation on affairs of state.

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But this question of deliberation from the point of view of the collective person of the state, or people, would become central to a number of later figures who built in part on Hobbes’ theory of the state, including Immanuel Kant. Progress, time and history remained central concerns in both political and religious thought in the eighteenth century. Political languages tended to focus on advances in the arts and sciences, or in mores, culture or commerce – those things commonly associated with ‘enlightenment’. But these sorts of progress stories differed in a crucial way from a new sort that appeared from the 1790s and which would rise to increasing prominence in the century that followed. What was distinctive in these new stories was that the state and the people, understood as collective persons in some sort of intimate relationship with one another, were considered as agents responsible for their own future and so as conscious, or at least potentially conscious, motors of history. The French Revolution was widely taken to have shown that it was no longer only dynastic rulers but now peoples, acting through states, who were in a position to make history, and so to make and unmake constitutional, social and geopolitical orders for themselves. This then seemed only further confirmed by the pan-European rise of popular movements and the string of further revolutions in the decades following. Not every nineteenth-century theory of progress was of this new sort. Many important liberal and socialist versions, notably, retained key elements of eighteenthcentury models, for instance in the accounts of the political implications of shifting social conditions one finds in France from Constant and St-Simon down through Guizot and Tocqueville. But the newer approach, concerned with the collective agency of the state and people, would become increasingly hard to ignore as the nineteenth century wore on. Romanticism and nationalism were two important variants, but so were the German historical school of law and the newer sorts of socialism that emerged after the 1830 Revolution in France, as described famously in 1842 by Lorenz von Stein, with their characteristic turn – for the first time – to popular politics as the potential agent of social and constitutional change.2 This was not simply a question of enlightening the public, so that it might better appreciate or criticise the governance of autocrats – it was a question of the people potentially seizing power in the state for themselves and wielding it for their own ends. It is the difference between a sensibility common to eighteenth-century figures from Voltaire and Frederick II of Prussia to the Physiocrats, and from Hume to the early Bentham, by contrast to that of the later Bentham, when in the early nineteenth century he converted to the cause of democratising parliamentary reform. In this chapter I will focus only on Kant, whose version inspired the German Idealists, but the same underlying issues were also central to other debates elsewhere in the 2

Lorenz von Stein, Der Sozialismus und Communismus des heutigen Frankreichs (1st ed. Leipzig, 1842). Stein described socialism and communism not as schools of thought but as ‘the social movement [die soziale Bewegung]’, successor to the political movements of the French Revolution.

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period. The long nineteenth century was famously one of grand narratives of progress and history. But what if we misunderstand those theories when we take them for third-person predictions of history’s objective course? What if we considered them instead for the role they might play inside the deliberative process of a collective subject, like a state or a people, engaged in the activity of judging? The basic story I want to tell about Kant runs as follows. By the middle of the eighteenth century, leading legal theorists including Christian Wolff and Emer de Vattel had taken up the notion of the state as a collective person, which they had found particularly in Pufendorf’s complex engagement with Hobbes, and had moralised it in the sense of attributing to states duties to reform themselves in order to better cultivate their powers towards fulfilling their essential end of contributing to human happiness.3 In this way of thinking, however, these duties continued to derive from the independent framework of the law of nature and nations, and this framework established certain constraints on state sovereignty, by setting the terms of the ultimate ends towards which sovereignty itself was justified.4 Although Vattel is often described as breaking fundamentally with Wolff in favour of a ‘modern’ brief for independent sovereign states, at this most fundamental level the structure of their views remained the same.5 The crucial point to see about the view they shared with the rest of the tradition of writing on the law of nature and nations is that in it the system of law in general was prior to all political authority. Although of course such authority had wide latitude over civil law and even interstate relations, this prerogative was ultimately held by virtue of its recognition in the putatively universal law of nature and nations. At the most general and fundamental level, then, we remain here very far from Hobbes’ ‘authority, not truth, makes law’. But then the French Revolution seemed to many suddenly to explode all this. In the new world the Revolution opened up, many thought that a people, by taking control of a great state away from its traditional rulers, had shown itself to be the true sovereign and that all law, henceforth, would depend – perhaps for its validity, almost certainly for its preservation – on some sort of claim to give effect to the sovereign popular will. This is certainly what Kant, drawing on Rousseau, thought by the 1790s. Kant’s 3

4 5

Christian Wolff, Jus gentium modo scientifica pertractatum (Halle, 1849), 1.1.35; Emer de Vattel, Les droits des gens, ou principes de la loi naturelle, appliqués à la conduite & aux affaires des Nations & des Souverains (London, 1758), 1.2.21–2. See also Samuel Pufendorf, De jure naturae et gentium (Lund, 1672). Wolff, Jus gentium, Prolegomena §6–8, §18; Vattel, Droits des gens, Preliminaries §5–6, 1.2.15. The difference here between Wolff and Vattel is that Wolff understands the freestanding law of nature and nations to entail a supreme state or civitas maxima, with coercive authority to enforce obligations over individual states (Prolegomena, §7–§21), whereas Vattel denies this and holds instead that the law of nature and nations requires respect for the full independence of states as equal members of a society of all humankind (Preface). The difference is somewhat less than it appears, however, because the content of enforceable, perfect obligations for Wolff consists largely in equal respect for the selfpreservation of each state and the conditions of its continued independence in matters that do not involve injustice to others.

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constitutional theory was at its core an attempt to re-build a theory of law, no longer taking the law as a freestanding object whose authority over us must be taken on faith. Instead, the content of law was to be derived entirely from the necessary conditions of any possible legal order in which the general wills of peoples could be said to rule. Instead of arguing directly over which law is right, one tries to show that law owes its authority to a certain sort of lawgiver, and then to reason out that certain laws cannot be right because it is logically impossible for such a lawgiver to have made them. The idea of the state as a moral agent with a duty to reform itself, present in Wolff and Vattel, was however fundamentally foreign to the thought of Hobbes and even of Rousseau. This is particularly notable in Rousseau’s case, given that he was also deeply concerned with questions of progress, the collective agency of states and peoples, and how individuals might cultivate their own freedom and improve themselves through the right sort of education. But these different strands never came together in Rousseau quite the way they would in Kant. Kant famously built a philosophy of history into his theory of politics, the state and international relations, initially in direct response to Rousseau’s second Discourse.6 But what was so distinctive about Kant’s theory was, first, that it took familiar notions of duties to selfimprovement, and applied them – not only to individuals, as in Rousseau’s Emile, nor to the macro-subject of the human race writ large, as in Lessing’s Education of the Human Race or generally in Herder – but, like Wolff and Vattel, to the distinctively political collective agent that was the state.7 Kant’s view, following Hobbes, is that the state was also the necessary unifying institution that made possible the collective agency of a people which could only act in and through it.8 So in what follows I will sometimes refer to ‘the people-state’ where the putative identity of the two is more pertinent than the distinction. The key point is that Kant’s move was much more radical than Wolff or Vattel’s treatments of the same duty of self-improvement, because for Kant this was not simply one duty among others inside a stable general system of the law of nature and nations. To the contrary, since the collective subject of the people-state was itself the fount of all law, the duty to self-improvement became fundamental to the possibility of establishing any legal or constitutional order whatsoever. The duty was a 6

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In each of the two key pieces of the 1780s, ‘Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht’, Berlinische Monatsschrift, 4:11 (November, 1784): 385–411, and ‘Muthmaßlicher Anfang der Menschengeschichte’, Berlinische Monatsschrift 7:1 (January, 1786): 1–27. Kant is cited throughout in the Academy edition: Kant’s gesammelte Schriften, herausgegeben von der Königlich Preussischen Akademie der Wissenschaften, 29 vols. (Berlin, 1900–). Hereafter, Gesammelte Schriften. All translations from all authors mine, though I have often drawn on the excellent Cambridge Kant series. Gotthold Ephraim Lessing, Die Erziehung des Menschengeschlechts (Berlin, 1780). The first part only had been published in 1777 in Lessing, Zur Geschichte und Litteratur, Vierter Beytrag (Braunschweig), 522–43. Johann Gottfried Herder, Ideen zur Philosophie der Geschichte der Menschheit, 4 vols. (Riga and Leipzig, 1784–1791), inter alia. The Metaphysics of Morals, in Gesammelte Schriften, vol. 6, p. 318; with Reflection 7,810, vol. 19, p. 523.

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logically prior condition of possibility of any legal order, rather than a duty grounded in established law. At least four major consequences followed. First, this shifted priority in the theory of law and justice from the object, the content of law, to the subject, the law’s author. What was required was no longer simply a correct interpretation of some legal codex that might have been inherited from Rome or which might be compiled or reasoned out from true first principles.9 To the contrary, what was needed first of all was to understand the challenges facing the collective agent of the sovereign people-state who was called upon actively to produce the law through its powers of judgement and self-legislation. This was the move that Kant attributed to Hobbes and Rousseau and which he wholeheartedly embraced, as against the overwhelming consensus in eighteenth-century legal theory, particularly (if not only) in Germany. Of the challenges facing such a collective agent Hobbes had stressed one above all, its need to preserve its capacity for united action as the condition of any possible civil order. Rousseau had added a different sort of condition, the requirement that all legislation be both formally consistent with the possibility of describing it as the expression of the general will, and also clearly distinguished from the exercise of executive power, if governments were to defend themselves from criticism for usurping the sovereign authority. Kant would take up both of these conditions but, as we will see, he added another which introduced the notions of time and progress into this picture in a way they did not appear either in Hobbes or in Rousseau’s theory of law. By following and building upon Hobbes and Rousseau in this way, Kant was able to re-work an entire theory of law no longer as a set of freestanding facts or principles, as in the German treatises on the law of nature and nations. Now the law was to be worked out as a series of necessary consequences derived from reflection on the conditions of any possible legal order that might count as both general and, at the same time, the expression of the people’s own sovereign will. This is the same sort of move that Kant claimed for his moral theory, for instance in the Groundwork of the Metaphysics of Morals,10 and it is also strictly analogous to the core theses of his critical system with respect to the conditions of possibility of objective knowledge. Kant’s metaphysics is widely recognised as having effected a ‘Copernican turn’ from arguing directly over objective truths to instead working out the subjective conditions of any possible objective claims. Instead of arguing how the world is, we argue how we, as subjects thinking and arguing about it, must take it to be. What I am suggesting is that this turn was paralleled by a similar and no less significant turn also in the law and in politics (although here Kant avowedly followed the logic of arguments already made by Hobbes and Rousseau). By ‘subjective’ I don’t mean ‘dependent on whim or caprice’, but ‘concerning a subject or agent’. What this means is that 9 10

Contrast, for example, G. W. Leibniz, Codex juris gentium diplomaticus (Hanover, 1693). Kant, Groundwork of the Metaphysics of Morals, Gesammelte Schriften, vol. 4, p. 432.

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if we want to understand the objective content of law we must first understand the nature of the intentional agent who might be said to author and authorise it. If only the representative of a free people making general rules could be said to endow law with binding force, then a law that logically contradicts the freedom of the people, like slavery, or the unity of the people, like one reserving ruling rank to a certain hereditary caste, cannot possibly be a valid law. In this way we are supposed to work out disputes over constitutions, for instance, not by asking ‘which regime is best?’ objectively, but instead ‘which regime is it logically possible for a free people to give to itself?’ The second consequence follows from the crucial fact that the sort of collective agent we are concerned with must be politically and legally constituted. This stood in sharp contrast, on the one hand, to the vague and religiously inspired notions of a universal human community in works like those of Lessing and Herder. But it also contrasted with the assumption of a single, natural agent in other genres of political writing pitched to rulers, such as mirrors-for-princes, or later also to publics on behalf of rulers, such the 1740 Anti-Machiavel by Voltaire and Frederick II of Prussia.11 This move introduced constitutional theory into the heart of an account of political judgement – not only as an object to be judged, but here as the necessary condition of any subject who might be in a position to do the judging. And this allowed one to discuss entirely new sorts of dilemmas and challenges facing rulers, who were re-imagined as representatives or functionaries of the sovereign peoplestate. The people became less exclusively a force of nature to be either appeased or terrified into submission by rulers anxious to preserve their position. If the people or the people’s representatives were themselves to be thought of as ruling, then the key challenges for political judgement came to focus increasingly on such issues as preserving the institutional conditions of the people’s political unity and safeguarding the relationship between the people and officials from usurpation by factional interests. Older concerns with the best or most stable regime type were now recast from the new perspective of a people-state considered, no longer merely as one social faction among others, but as a conscious political agent capable of collective judgement and collective action, itself the potential author and defender of the constitution. The third consequence of Kant’s move was to lend history and progress a new sort of political valence, since from this new, subject-orientated perspective on law and politics, these were not only external conditions to which states might react, but they instead became part of the state’s or people’s own self-understanding, and so of its sense of purpose, obligations and destiny. Progress became a principle of action, a norm inside a situation of judgement, rather than simply an empirical fact to take 11

Anti-Machiavel, ou essai de critique sur le Prince de Machiavel, publié par M. de Voltaire (The Hague, 1740). English translation by Angela Scholar, in Avi Lifschitz, ed., Frederick the Great’s Philosophical Writings (Princeton and Oxford, 2021), 13–81.

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note of or to which one might be called upon to adapt. Progress as self-improvement had previously carried this sort of meaning in theological debates, as we will see, but it took on a new political salience when transposed into the theory of states and constitutions. As noted, Kant followed Wolff and Vattel here, but he radically raised the stakes by placing this notion of historical progress, as a question of commitment and a subject’s relation to its own conscience, at the fount of the entire system of law. This led, finally, to the fourth consequence, because it became possible in this way for Kant to propose a new sort of response to the ineluctable gap between the perfectly just ideal state and actually-existing states, whose putative legitimacy commonly traces back to arbitrary seizures of power.12 Whereas classical and medieval authors could simply distinguish between the ideal state and the best regime actually possible, this raised a thornier problem for a thinker who accepted Rousseau’s premises. Now the problem was that the norm or ideal of the perfectly united general will had to play two roles at once. It was on the one hand a principle of judgement in accordance with which all citizens ought to decide – their decisions must respect its generality condition in their content. But on the other hand, the general will must also be taken to describe the agent taking the decision, so that, as Rousseau put it, the result of a majority vote could be taken to express the general will only if one supposes that ‘all the characteristics of the general will remain in the majority’, since ‘when they cease to be there, then no matter which party one sides with, liberty is nowhere to be found’.13 This created a famous problem for Rousseau, since it appears to require that the conditions of the ideal republic must already be realised before the people could be in a position to judge rightly and create it: so that a people being born could enjoy the healthy maxims of politics and follow the fundamental rules of reason of state, the effect would have to be able to become the cause; the social spirit, which ought to be the product of the institution, would have to preside over the institution itself; and men would have to be prior to the laws what they ought to become by means of them.14

Rousseau’s solution was the notorious ‘législateur’, the mythical and paradoxical founding figure who must be both superhuman in faculties and perfectly righteous, a sort of charlatan in good faith who tricks the people into doing what is good for them by pretending his commandments come from God. In Rousseau this led generally to a counsel of despair regarding the future of any but a few wild and yet uncorrupted peoples. When Rousseau considered one of those peoples, in a more practically minded work like the Poland, it led to suggesting practices designed to forge a patriotic spirit of unity; but such suggestions could not be made 12 13 14

The Metaphysics of Morals, in Gesammelte Schriften, vol. 6, 372. Jean-Jacques Rousseau, Du Contrat social, IV.II, in Œuvres Complètes, vol. III (Paris, 1964), 441. Ibid., 383.

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to the people themselves, only to elites like the Count Wielhorski and his confederates, who must be supposed to have both the commitment and the capacity to put them into effect and bring the people along.15 This persistent incompatibility between the demand for popular unity and the agent in a position to try to bring it about would prove a central fault-line throughout the French Revolution, a problem one can see a thinker like Sieyès continually wrestling with but never quite able to resolve. Kant, however, would show that the notion of progress as a duty of selfimprovement, familiar from Leibniz and Wolff, could be adapted to make possible a new sort of response. In Kant, the unbridgeable gap between the ideal republic governed by nothing but the people’s general will, on the one hand, and every existing state, founded in violence and most often ruled by hereditary monarchs, on the other, could be projected onto a relation between present and future. The past was consigned to irrelevance, and the ‘future’ really functioned as a horizon to invoke in facilitating a certain political relationship in the present – a reflexive posture of self-criticism and self-improvement by a collective subject, hoping thereby to preserve its own unity from the ever-present threat of internal division. As is well known, for Kant the legitimacy of the existing state did not depend on its actually having been founded through a historical contract that might be identified with the people’s general will.16 Rather, since the presence of a unified state was a condition of possibility of the existence of any united people with a will of its own, what was important was for that state, first, to govern in a ‘republican spirit’ – to think itself as best as possible into the vantage point of what the united people would choose if they could.17 Second, it was for that state to reform its own constitution over time so that it might gradually approach the republican ideal, without ever allowing for a violent revolutionary break in the chain of sovereign authority. This only made sense, however, if one accepts the prior move to reframe questions of law, regimes and history as meaningful not as claims about the objective world but as actionguiding principles within a space of judgement. Then it is enough to say that these are the principles in accordance with which we ought to judge. Those principles matter because agreement on them is a way of maintaining certain political relationships in the present, much the way agreeing to the terms of a contract involving a promise to be redeemed in future may make possible the completion of a present transaction. They need not describe anything true about history or the world. It is only the commitment that matters. Admittedly, as in the theodicy problem from which Kant’s view descends, Kant did think it essential to show that the principles

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Jean-Jacques Rousseau, Considérations sur le gouvernement de Pologne et sur sa réformation projettée (sent to Wielhorski in 1771 or 1772, published in 1782 in Du Peyrou’s Collection complète des œuvres de J. J. Rousseau, citoyen de Genève, vol. 1, Geneva), in Œuvres Complètes, vol. III, 951–1,041. The Metaphysics of Morals, in Gesammelte Schriften, vol. 6, 318–19. Ibid., vol. 6, 340–1.

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were not inescapably negated by the historical record, but the reason for that was because he supposed that if they were then commitment to them would become impossible to sustain.18 On this view, then, we are invited to ask not ‘what is the law?’ or ‘what regime is best?’, but ‘what sort of law or regime ought we to make if we hope to say, without inconsistency, that it may be seen as authored by ourselves, the sovereign people?’ We ask not ‘where is history going?’ but only ‘how does a certain view of history, which cannot be shown to be impossible, allow us to take collective actions today that we may recognise as our own, even though we do not already live in an ideal republic ruled only by the general will of a perfectly united sovereign people?’ As we will see, Kant was able to take a line of argument developed in debates over theodicy, concerning the relevance of ideal concepts to an apparently imperfect world, and transpose it into political thought. In one sense, this interjected a decidedly Protestant sensibility into the imagining of the state in its relation to history – a sensibility in which intersubjective political relations are managed by calling for a common commitment of all subjects to participation in maintaining a certain sort of relationship to their own consciences (i.e, the commitment to active selfimprovement). Decades later, this would be precisely the quality that Karl Marx would label ‘alienation’ in his critique of Feuerbach, the leading standard-bearer in his day of the German Idealist project descended from Kant. In the view Kant launched, progress was not a question of predicting the future, but, as in Leibniz’s Theodicy, a way of maintaining a certain relationship of the subject to his own conscience, in order to keep up our commitment to do our duty in the face of a world that too often seems to make a mockery of high-minded ideals. And this was meant to serve also the political end of preserving a sort of community thought to depend on that shared commitment as a way of overcoming the sort of distrust that feeds internal conflicts. At the same time, however, the logic of Kant’s critical re-working of Leibniz – which paralleled that of his response to Leibniz’s metaphysics in the first Critique – allowed Kant to dispense entirely with reliance on any positive theological doctrines, and so was in this sense expressly secularising. This novel sort of stance on the relation of ideals to imperfect realities would come to take on an increasingly important meaning in the period opened up by the French Revolution. In many ways, the great dilemma of the nineteenth century, and much of the twentieth, was how to come to terms with demands for popular governance, as they became increasingly difficult to ignore, without the process inviting a sort of general anarchy that would render political principle mute inter arma as the world plunged into unending and ever more terrible foreign and civil wars. Indeed, this is still very much a dilemma today. The characteristic solution in German Idealism, pioneered by Kant, was to refigure the gap between the ideal rational state and the real state of force and necessity as a temporal one, the closing 18

Ibid., vol. 6, 354–5.

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of which could be projected into the future. But many other nineteenth-century thinkers also came to see ‘progress’ as a solution to the same sort of underlying problem. Although I cannot survey them here, it is worth noting that nineteenth-century debates over the progress of states and nations were very often a way of talking about the challenges of democratic or popular revolution while appearing to talk about something else. This is one of the most important contexts for understanding why progress theories that may well look simple and naïve to us today captivated the imaginations of so many in the nineteenth and indeed twentieth centuries, since they offered a way of coming to terms with a very real and serious problem that is not otherwise easily resolved. Here I will limit my discussion to the example of Kant, but one can easily see how the general point might also be explored with respect to many other notable nineteenth-century figures. THE EIGHTEENTH-CENTURY GERMAN DEBATES

In order to appreciate the novelty of the view introduced by Kant, one must distinguish three broad lines of thought to which he was responding. I will refer to these as the Leibnizian tradition, the ‘juristic’ tradition, and the line of sovereigntist thought associated with Hobbes and Rousseau. In the first half of the eighteenth century, debates in the German-speaking world were dominated by the first two, until the influence of Rousseau began to be felt after 1751, often as a sort of intriguing provocation to which the two established camps felt compelled to respond.19 So for instance when Moses Mendelssohn, a leading Leibnizian, translated Rousseau’s second Discourse into German in 1756 (only a year after its appearance in French), he added three appendices, including a translation of Voltaire’s famous 1755 letter to Rousseau and an open letter of his own to Lessing, in which he rebutted point by point the work’s more irreligious and pessimistic conclusions.20 As I have discussed elsewhere, Kant sided with Rousseau against both the Leibnizians and the jurists (those ‘sorry comforters’ Grotius, Pufendorf and Vattel) on the key point placing politics before the law (so on the overriding need to exit the state of nature for a 19

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The contrast between the first two has received notable treatments from T. J. Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge, 2000) and Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge, 2001). Although neither considers the third as a distinct line, the impact of Rousseau on German thought later in the century is widely recognised. See, for example, Herbert Jaumann, ed., Rousseau in Deutschland: Neue Beiträge zur Erforschung seiner Rezeption (Berlin, 1995), Avi Lifschitz, ‘Adrastus versus Diogenes: Frederick the Great and Jean-Jacques Rousseau on self-love’, in Lifschitz, ed., Engaging with Rousseau (Cambridge, 2016), 17–32. This isn’t a problem for Hochstrasser, but it is a notable omission in Hunter’s portrayal of Kant’s political thought as a straightforward continuation of Leibnizian metaphysics, a view with few adherents among specialists in Kant’s corpus and its contexts. Hunter’s book mentions Rousseau four times in passing, twice in the Kant chapter, both times to dismiss his importance (Rival Enlightenments, 335, 354). Jean-Jacques Rousseau, ed. and transl. Moses Mendelssohn, Abhandlung von dem Ursprunge der Ungleichheit unter den Menschen, und vorauf sie sich gründe (Berlin, 1756).

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civil condition or its best approximation).21 In this chapter I will focus on how Kant’s philosophy of history nevertheless held onto a line of argument from the Leibnizian side, while radically re-working it to fit in a new framework that was political rather than metaphysical, in the sense that it no longer depended on claims about God and the cosmos but only concerned those principles that ought to be respected by the collective subject of a sovereign people-state and its citizens. The Leibnizian tradition was the dominant philosophical movement in eighteenth-century Germany. It characteristically combined issues of metaphysics, theology, and ethics into an all-encompassing philosophical system. In a series of works around the turn of the eighteenth century, Leibniz had re-worked Descartes’ ontological, cosmological and teleological arguments for the existence of God in order to argue from logic and our experience of the world to God’s existence, omnipotence and perfection, and from there to claims about our moral duties.22 The most important mid-century follower of Leibniz was Christian Wolff, who was famously dismissed from his post at the University of Halle in 1723 by Friedrich Wilhelm I, when theologians accused Wolff of inviting atheism, before being triumphantly recalled to Halle by the new king, Frederick II, on his ascension to the throne. The leading academic Leibnizian after Wolff was Alexander Baumgarten, trained at Halle and later installed at Frankfurt, who wrote on ethics and metaphysics and who is also generally credited with inventing the modern discipline of philosophical aesthetics.23 Mendelssohn was another leading Leibnizian in the latter part of the century, but he was not a university professor and wrote primarily for the educated lay public, although he engaged in discussions with many leading academics in the period’s semi-popular journals, such as the Berliner Monatsschrift. He was a leading light of the so-called Berlin Enlightenment and a close friend of Lessing’s, and he became a correspondent of Kant’s, one of the four persons to whom Kant personally asked to have sent a copy of the first Critique on publication.24 It is well known that Kant engaged closely with Leibniz’s metaphysical arguments – and 21

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Christopher Meckstroth, The Struggle for Democracy (New York, 2015). He kept some important arguments from Vattel, however, particularly concerning a critique of the justifications for European colonial practices. See my ‘Hospitality, or Kant’s critique of cosmopolitanism and human rights’, Political Theory, 46:4 (2018), 537–59. G. W. Leibniz, Système nouveau de la nature et de la communication des substances …’, Journal des Sçavans, 27 June and 4 July 1695, 294–306; Essais de Theodicée sur la bonté de Dieu, la liberté de l’homme, et l’origine du mal (Amsterdam, 1710); ‘Principes de la Nature & de la Grâce, fondez en Raison’, L’Europe savante (November 1718): 100–23 (written 1714); the ‘Monadology’, also written 1714 but first published in German translation as Lehr-Sätze über die Monadologie. … (Frankfurt and Leipzig, 1720); Nouveaux Essais sur l’Entendement humain, written in 1704 but only published in Œuvres philosophiques latines et françoises, ed. Rudolph Erich Raspe, (Amsterdam and Leipzig, 1765), which Kant appears to have read with great interest in 1769. For recent discussions of Baumgarten, see Simon Grote, The Emergence of Modern Aesthetic Theory (Cambridge, 2017); and Stefano Bacin, ‘Kant’s lectures on ethics and Baumgarten’s moral philosophy’, in Lara Denis and Oliver Sensen, eds., Kant’s Lectures on Ethics: A Critical Guide (Cambridge, 2015), 15–33. Letter to Marcus Herz of 1 May 1781, Gesammelte Schriften, vol. 10, pp. 266–7.

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Mendelssohn’s  interpretations of them – all his life, beginning in his pre-critical period, and that many of the core arguments of the Critique of Pure Reason were framed by Kant explicitly as criticisms of Leibniz.25 What I am suggesting is that by the 1790s his philosophy of history made an analogous move, retaining some of Leibniz’s arguments on theodicy but recasting their status no longer as metaphysical proofs but instead as assumptions necessary to a certain sort of reasoning. In this case this was to be the reasoning of political leaders asked to think from the standpoint of collective peoples, as well as the reasoning of their subjects about the duties of obedience they owed to those leaders.26 The second major line of thought in eighteenth-century Germany was what I will call ‘juristic’, because it was located in faculties of law rather than those of philosophy or theology, as were the Leibnizians. This line may be said broadly to stem from Pufendorf, and through him Grotius, and included later figures such as Christian Thomasius, Jean Barbeyrac and Gottfried Achenwall. It did not worry over-much about metaphysics, and it did not base its arguments, like the Leibnizians, on cosmological claims. Rather, it was grounded in the broad tradition of interpreting the inherited Roman civil law, the corpus iuris civile, and legal concepts internal to that tradition — although notions imported from Aristotle into the natural law tradition did of course also find their way into texts of this sort. Characteristically, Pufendorf, the most philosophical of all the authors in this line, stressed that his principal concerns were just those ‘moral entities’ which had been neglected by metaphysicians focussed on physical nature, and which were instituted by intelligent beings to bring order into civil life.27 Although authors in this tradition were concerned with natural law, they understood it, broadly speaking, as some set of principles underlying the inherited law, which was itself traditionally divided into ius naturae, civile, vel gentium. Thinking like a jurist, one began by trying to make rational sense out of the law at hand and the concepts it employed, rather than, like the Leibnizians, trying first to get right the ontology and cosmology, then after proving the existence of God, arguing from God’s nature to the content of human moral and legal duties. It is important to appreciate the distinction between the Leibnizian and juristic traditions because Kant often took concepts or strategies from one and applied them to entirely different sorts of problems posed by the other, so that it is easy to mistake the problem Kant is trying to solve for someone else’s problem. Arguments over ‘perfection’ came from the Leibnizian line, for instance, whereas discussions of the social contract came from legal and political debates involving the jurists as well as Hobbes and Rousseau. Things are not quite this simple, because many of the 25

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Direct, critical references to Leibniz and ‘die Leibniz=Wolffische Philosophie’ are too frequent to cite: consult Katharina Holger, Eduard Gerresheim, Antje Lange and Jürgen Goetze, eds., Personenindex zu Kants gesammelte Schriften, (Berlin, 1969), online at https://korpora.zim.uni-duisburg-essen.de/ Kant/persindex/. This is another difficulty for Hunter’s thesis. ‘Idea for a Universal History with Cosmopolitan Intent’, Gesammelte Schriften, vol. 8, p. 31. Pufendorf, De iure naturae et gentium, 1.1.f5.

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greatest figures wrote in more than one tradition, or also imported concepts from one into another. Leibniz himself was also one of the first compilers of the modern law of nations.28 Wolff was renowned not only for his metaphysical works, but also his treatise on the Jus gentium. And Emer de Vattel, the Swiss jurist and author of the famous 1758 Droit des gens which Kant owned and called ‘the best work so far to read’ on the law of nations,29 was also a committed Wolffian whose first monograph had been a six-hundred page defence of Leibnizian optimism (dedicated to Frederick II).30 There, Vattel had defended Leibniz and Wolff against the ‘slanders’ of theologians and ecclesiastics who accused their system of ‘sapping the foundations of morality and all religion’ and entraining ‘libertinism and atheism’, contending instead that the system of pre-established harmony was the only effective defence of natural religion against the ‘Manichean’ objections posed by Bayle.31 This is significant with respect to Kant because Vattel’s Droit des gens followed Wolff’s Ius gentium in introducing a few key arguments concerning self-perfection derived from this debate over Leibnizian optimism into what was otherwise a work largely in the juristic tradition of Grotius and Pufendorf.32 Rousseau is another figure who straddled traditions, but in doing so he went so far as to establish a third orientation that was widely seen by both the Leibnizian and juristic camps as posing a particular threat. Both Leibnizian philosophers like Wolff and jurists like Thomasius had long been engaged in parallel struggles to liberate philosophy, on the one hand, or the law, on the other, from the traditional authority of the theological faculty and its ties to the state. But Rousseau’s denial of natural sociability, following Hobbes, and of progress in morality, by contrast to Leibniz and Pope, seemed to most in Germany to be steps too far. Many feared this opened the door to atheism, and even an admirer like Lessing thought Rousseau unfair to blame culture for all of history’s failures: ‘Rousseau is wrong,’ he opined, ‘though I know of no one who has ever been so with greater reason’.33 As I have discussed elsewhere, Kant was virtually alone in Germany in endorsing the more Hobbesian elements of Rousseau’s political thought in the Social Contract.34 But he too felt the need 28 29 30 31 32

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Leibniz, Codex. It is a text Kant appears to have read, since he seems to have lifted from it the joke that opens his famous essay on Perpetual Peace. Notes by Gottfried Feyerabend on Kant’s lectures on Natural Law, given in winter 1784, in Kant, Gesammelte Schriften, vol. 27, p. 1,392. Emer de Vattel, Défense du système leibnitien contre les objections et imputations de Mr de Crousaz, contenues dans l’Examen de l’Essai sur l’homme de Mr Pope, (Leiden, 1741). Ibid., f.3 ff. Vattel presented his work expressly as a critical extension of Wolff’s: Droits de gens, Preface, xvii. See also his more extended engagement in his Questions de droit naturel et observations sur le traité du droit de nature par le Baron de Wolf (Berne, 1764), written in 1753. G. E. Lessing, in his 1753 Schriften, paraphrasing his 1751 review of Rousseau’s first Discourse in the Berlinische priviligirte Zeitung, Sämmtliche Schriften (Berlin, 1838), vol. 3, p. 296. The most notable German defender of Hobbes in the first part of the century had been Nicolaus Hieronymus Gundling; see inter alia his Status naturalis Hobbesii in corpore iuris civilis defensus et defendendus (Kirchensittenbach, 1706). Like Mendelssohn, Vattel rejected Rousseau’s critique of

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to push back against the historical pessimism of the first and second Discourses, suggesting that Emile and The Social Contract were meant to show how the contradictions identified in the earlier texts must nevertheless be overcome by a further ‘advance’ in ‘culture’.35 The next section considers how he understood the stakes of that claim and the resources he drew on to try to substantiate it. KANT’S ADAPTATION OF THEODICY TO POPULAR SOVEREIGNTY

Thus Kant, nearly alone among his German contemporaries, drew from all three of the lines of thought just discussed, and he distinguished himself particularly in accepting the claim of the Hobbes–Rousseau line, framed against the jurists, that the first obligation of justice was to leave the state of nature for a civil state. This meant that the entire theory of law and justice needed to be re-worked, no longer as deriving directly from the law of nature, but instead from the necessary conditions of a civil state in which peoples could be said to rule themselves under law, thereby bringing to an end the otherwise interminable war of all against all. But Kant was well versed in the other two traditions, and he retained some familiar arguments from them, even as he radically re-worked these to fit inside his new, post-Hobbesian framework. When he lectured on metaphysics, ethics and anthropology, he used texts by Baumgarten, the Leibnizian – his Metaphysica for both metaphysics and anthropology, and for ethics both the Ethica philosophica and Philosophia practica.36 By contrast, when he lectured on Naturrecht, or natural law, as he did some twelve times between 1767 and 1788, he used Achenwall’s Ius naturae in usum auditorum, citing such figures as Grotius, Hobbes, Pufendorf and Vattel.37 Kant originally began to work out a position on the philosophy of history in the 1750s, as an explicit engagement in mid-century debates over Leibnizian optimism. Leibniz’s Theodicy (1710) was aimed directly at defending religion from the sceptical challenges raised by Bayle, who had been engaged with Leibniz in a long-running

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natural sociability in his ‘Reflexions sur le Discours de M. Rousseau touchant l’origine de l’inégalité parmi les hommes’ in his Amusemens de littérature, de moralité et de politique (The Hague, 1765). Even a sympathiser like Herder broke with Rousseau on this; see Eva Piirimäe, ‘Philosophy, sociability, and modern patriotism: Young Herder Between Rousseau and Abbt’, History of European Ideas, 41 (2015), 640–61. The same issue was the root of Herder’s famous dispute with Kant over whether or not humans are naturally sociable enough to do without a ‘master’, which Kant had denied in his 1784 ‘Idea for a Universal History with Cosmopolitan Intent’, Gesammelte Schriften, vol. 8, p. 23. See Herder’s Ideen, 2:313, and Kant’s Recensionen von J. G. Herders Ideen zur Philosophie der Geschichte der Menschheit, in two parts, Gesammelte Schriften, vol. 8, pp. 43–66. ‘Conjectural Beginning of Human History’, Gesammelte Schriften, vol. 8, p. 116. Alexander Baumgarten, Metaphysica, 4th ed. (Halle, 1757); Initia philosophiae practicae primae acroamatice (Halle, 1760) and Ethica philosophica (1st ed. Halle, 1740), perhaps using both 1751 and 1763 editions. Gottfried Achenwall, Ius naturae in usum auditorium, 2 vols., 5th ed., (Göttingen, 1763).

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dispute through the two editions of the Dictionnaire (1696 and 1702) and, most immediately, Bayle’s Entretiens de Maxime et de Thémiste (1707) and his Réponse aux questions d’un provincial (1704–1707). This set off a great debate. Apart from Wolff and the aforementioned intervention by Vattel, some of the most prominent defences of Leibniz were found in a volume by Johann Christoph Gottsched, which was one of the limited number of books in Kant’s personal library, and in Baumgarten’s Metaphysica, from which Kant regularly lectured.38 Among the major critiques was that from the philosopher and theologian Christian August Crusius, which Kant also owned, and Jean-Pierre de Crousaz’s Examen de l’Essay de Monsieur Pope (Lausanne, 1737), which also attacked Leibnitzian philosophy, and set off a long debate over the relation of that system to Pope’s.39 Although Kant did not own that work, he did own Crousaz’s Observations critiques sur l’abregé de la Logique de Monsieur Wolff (Geneva, 1744), which criticised the theodicy of ‘le système Leibnitien’, and insisted against Wolff that one must ‘only search for the possible in what really exists’, rather than in ‘vague ideas of sufficient reason’, an objection similar to that Kant would raise in favour of Pope over Leibniz a few years later in an early manuscript reflection.40 Kant referred to Leibniz’s ‘Theodicee’ twice in his first published work, an otherwise technical defence of Descartes against Leibniz on mechanical force.41 In 1753, the Prussian Royal Academy of Sciences announced an essay competition for 1755, on the theme of ‘the system of Mr. Pope, consisting in the phrase: All that is, is good’, which was to be interpreted, compared to the ‘systems of the Optimists’, that is, Leibniz and Wolff, and grounds adduced on which this system was to be ‘established or abolished’.42 Kant began preparatory work on a submission, from which three manuscript reflections survive, although the piece was never completed. These first formulations of the views that would develop into his philosophy of history show that he clearly saw it as a stance on theodicy:

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Johann Christoph Gottsched, Erste Grunde der gesammten Weltweisheit, 3 vols. (1st ed. Leipzig, 1734); At the time of his death Kant owned the fifth edition (1748–1749). Gottsched was also the first translator of Bayle’s Dictionnaire into German, Herrn Peter Baylens … historisches und kritisches Wörterbuch (Leipzig, 1741–1744). The first edition of Baumgarten was published in Erlangen in 1739. For Kant’s library, see Arthur Warda, Immanuel Kants Bücher (Berlin, 1922). C. A. Crusius, Entwurf der nothwendigen Vernunft-Wahrheiten (1st ed. Leipzig, 1745). Kant later owned the second edition of 1753 (Warda). Jean-Pierre de Crousaz, Observations critiques sur l’abregé de la Logique de Monsieur Wolff (Geneva, 1744), 16–25, 28; Kant, Reflection 3,705, Gesammelte Schriften, vol. 17, pp. 238–9. Gedanken von der wahren Schätzung der lebendigen Kräfte und Beurtheilung der Beweise, deren sich Herr von Leibniz und andere Mechaniker in dieser Streitsache bedient haben, nebst einigen vorhergehenden Betrachtungen, welche die Kraft der Körper überhaupt betreffen, in Gesammelte Schriften, vol. 1, pp. 23, 152. The text was written by Kant as a university student and sent for publication in 1746 but did not appear until 1749. Freye Urtheile und Nachrichten zum Aufnehmen der Wissenschaften und Historie überhaupt (Hamburg, 27 July 1753), 462. The contest was won by a critique of Leibniz and Pope by Crusius’ student Adolph Friedrich Reinhard, Reinhard’s own German translation of which, Abhandlung von der Besten Welt (Greifswald, 1757), Kant would also later own.

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Leibniz was right to call his system a theodicy, or a defence of God’s good cause. For, in fact, it is nothing but a justification of God, on the assumption that he might perhaps be the author of evil, through the assurance that, insofar as it depends on him, everything is good and that at least it is not his fault if everything does not turn out perfectly as honest people wish it should.43

Despite his preference for Pope over Leibniz in that reflection, moreover, Kant defended Leibniz full-throatedly and in expressly theistic terms a few years later, in his 1759 ‘Attempt at Some Reflections on Optimism’.44 The point of this sort of argument over theodicy was not to predict the future, but to protect religion and conventional morality from sceptical challenges and so to fortify us in doing our duty.45 As Leibniz had put it: The whole future is determined without a doubt: but since we do not know in what way, nor what is foreseen or resolved, we must do our duty, following the reason that God has given us and the rules that he has prescribed for us; and after that we must hold the mind in a state of repose, and leave to God himself the care for the outcome.46

We must in particular escape the threat to moral responsibility entailed by the competing, sceptical doctrine, ‘according to which it appears that man is forced to do the good and the evil that he does, and consequently that he deserves no recompense or punishment, which destroys the morality of actions and shakes all justice, divine and human’.47 It is as a response to these sorts of concerns, which Kant continued to share with Leibniz throughout his critical period, that we should read such lines as those that close the 1786 ‘Conjectural Beginning of Human History’, where Kant explained that the representation of history he had provided: is thus beneficial and useful to the human being for his instruction and improvement, which shows him that he must not blame providence [Versehung] for the evils that oppress him. … And that, then, is the result of a history of the earliest humankind

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Reflection 3,705, Gesammelte Schriften, vol. 17, p. 236. ‘I call out to all creatures, who do not make themselves unworthy of the name: hale are we, we are! And our Creator is pleased with us. … I can only learn with ever deepening insight: that the whole is best and everything is good for the sake of the whole’, Gesammelte Schriften, vol. 2, p. 35. This is also clear from Kant’s three 1756 essays on the Lisbon earthquake, which showed his engagement in another stage of the optimism debate that included a famous exchange between Voltaire and Rousseau (who defended Pope), and carried on into Candide and discussions in a number of Rousseau’s later works. For an overview, see Victor Gourevitch, ‘Rousseau on Providence’, The Review of Metaphysics, 53:3 (2000), 565–611. Leibniz, Theodicée, 170–1, §58. This sentence follows an epigram from Horace’s Odes, ‘Prudens futuri temporis exitum / Caliginosa nocte permit Deus’, which continues in the original, ‘ridetque, si mortalis ultra / fas trepidat…’, (3.29.29–31), ‘Prudently God veils the outcome of the future in the darkness of night (and smiles if a mortal fears what he cannot know)’. Leibniz, Theodicée, 107, §2.

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attempted by means of philosophy, contentment with providence and the course of human things in the whole – which does not set out from good and advance to evil, but which gradually develops from the worse to the better, to which progress each in his part, and insofar as it is in his power, is called upon by nature to contribute.48

Yet two differences stand out: First, we know from Kant’s other works that his morality is secular in the sense of insisting, against Leibniz, on the full independence of moral reason from any theistic premises. Second, in the final part of the sentence after the dash Kant does here make the argument turn on a claim about historical progress, in a way the earlier debate over Leibniz most often had not, and indeed he had not in his own reflections in the 1750s. Logically, the example of Leibniz showed there was no necessary reason to believe in progress in order to justify theodicy,49 so why had Kant come to see history and time as a key to the problem? The most important prompt appears to have been Rousseau, to whose second Discourse both of Kant’s key essays of 1784 and 1786 were explicitly replies. As we have already seen, acute Leibnizians such as Mendelssohn and Lessing had seen Rousseau’s conclusions in the first two Discourses as a direct challenge to the viability of optimism. Yet as late as 1754, their co-authored ‘Pope A Metaphysician!’, penned as yet another potential entrant to the 1755 essay competition but in the end published separately, made no mention of any argument concerning historical progress in either Pope or Leibniz.50 Lessing, of course, would go on to publish one of the most famous period progress narratives, The Education of the Human Race, in two instalments in 1777 and 1780, with its scandalously sceptical conclusions (implying that Christianity might someday be overcome the way it claimed to have superseded Judaism), whereas Mendelssohn, defender of both religious toleration and a form of Judaism rationalised along Wolffian lines, would reject both decline and progress stories in his Jerusalem (Berlin, 1783), prompting Kant’s well-known reply in the ‘Theory and Practice’ essay ten years later. So it is notable that neither had earlier mentioned progress in Pope, since an argument for progress, of a sort, was there to be found. In the third Epistle, Pope described how, after an initial descent into the chaos of competing force and pride, order came to re-establish itself as:

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Gesammelte Schriften, vol. 8, p. 123. In the Theodicée, Leibniz addressed the issue indirectly, in responding to a potential objection that if the world should change then as it must be getting better, God should have made it in its final state from the beginning. But Leibniz replied that change may not entail a different degree of perfection but only of quality (his example is change ‘from a square to a circle’), and what matters is the perfection of the overall order in the total chain of events, not the comparison of the supposed amount of perfection at any one point in time to another (375–6). It thus might turn out to be the case ‘that the universe always went from better to better, if it were not at all permitted to attain the best all at once’, but this is in no way a necessary assumption, the important point being rather that ‘these are problems which are difficult for us to judge’ (376). Moses Mendelssohn and G. E. Lessing, Pope ein Metaphysiker! (Gdan´sk, 1755).

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Forced into virtue by self-defence E’en kings learn’d justice and benevolence Self-love forsook the path it first pursued, And found the private in the public good … Till jarring interests of themselves create The’ according music of a well-mixed state … Thus God and nature link’d the general frame And bade self-love and social be the same.51

We know that Kant read Pope’s Essay closely, in the 1740 Brockes facing German– English edition, because as Stark and Brandt have noted, Kant included five quotations from it, with attribution, in the Universal Natural History and Theory of the Heavens he published in 1755.52 Kant had already paid particular attention to this argument of Pope’s in one of his 1753–1754 reflections, where he paraphrased it thus: Self-love, which seems to aim only at one’s own pleasure and to be the manifest cause of the moral disorder we observe, is the origin of that beautiful harmony that we admire. … The general bond, which ties together the whole, in an unexamined way, makes it so that individual advantages always relate to the advantages of other things, and do so in a natural sequence. Thus a general law of nature establishes the love that sustains the whole, but does so through efficient causes which, in nature’s way, also bring forth the evil whose source we would gladly see eliminated.53

Although the famous discussion of ‘unsocial sociability’ in the ‘Idea of a Universal History with Cosmopolitan Intent’ some thirty years later, in 1784, does not cite Pope by name, it is difficult not to be struck by the similarity of the argument there advanced: ‘All culture and art, which adorn humanity, the most beautiful social order, are fruits of that unsociability, which through itself is necessitated to discipline itself and so, through extorted art, to develop fully the germs of nature’.54 The point of this was once again explicitly to answer the pessimism of Rousseau’s second Discourse, and thereby to re-affirm providence: ‘Such a justification of nature – or better, of providence – is no unimportant reason for choosing a particular viewpoint

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Alexander Pope, An Essay on Man, Epistle III (London, 1733), verses 279–82, 293–4, 317–18. Gesammelte Schriften, vol. 1, pp. 241, 259, 318, 360, 365; cf. B. H. Brockes, ed., Versuch vom Menschen, des Herrn Alexander Pope (Hamburg, 1740). See Reinhard Brandt, Die Bestimmung des Menschen bei Kant (Hamburg, 2007); and Werner Stark, ‘Kant’s Lectures on Anthropology: Some Orienting Remarks’, in Alix Cohen, ed., Kant’s Lectures on Anthropology: A Critical Guide (Cambridge, 2016). Gesammelte Schriften, vol. 17, p. 234. Gesammelte Schriften, vol. 8, p. 22. Cf. the formulations of the same argument in ‘Theory and Practice’, ibid., vol. 8, pp. 310–11, and Perpetual Peace, ibid., vol. 8, pp. 366 and 379: ‘An immutable feature of moral evil is that it is self-contradictory and self-destructive in its intentions (above all in the relationship to other like-minded persons), and it thereby makes room for the (moral) principle of the good, even if it does so in slow steps.’

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from which to observe the world’.55 The importance of Pope as a context for interpreting Kant’s thought on unsocial sociability has not, I think, received the attention in the literature it deserves.56 Although Wood is right to stress that Kant’s dispute with Herder was a proximate context for the ‘Conjectural Beginning’, that does not also explain the earlier ‘Idea for a Universal History’, and the larger point is that what Kant was trying to show in both works was that Pope’s account of ‘self-love and social bade be the same’ meant one could accept Rousseau’s (Hobbesian and essentially irreligious) denial of natural sociability without being forced to endorse his pessimistic view of history.57 The logic of Kant’s position in these key works of the 1780s, then, was to use Pope to answer Rousseau (the Rousseau of the second Discourse), in order to attain the end of Leibniz’s theodicy – not so much to defend providence for its own sake but to safeguard the duty to act morally from sceptical objections of the sort that had been raised by Bayle.58 Or put another way, Pope allowed Kant to save the Rousseau of the Social Contract and Emile from that of the first two discourses, answering Mendelssohn’s worries over Rousseau’s rejection of natural sociability by showing why this need not entail breaking faith with the project of Enlightenment reform that Kant and Mendelssohn shared. Kant’s general strategy would remain the same in his definitive political works of the 1790s, Perpetual Peace and The Doctrine of Right, but three points had changed. 55

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‘Idea of a Universal History’, Gesammelte Schriften, vol. 8, pp. 26, 30. Cf. Perpetual Peace, ibid., vol. 8, p. 372. In the Doctrine of Right (1797), Kant largely drops the language of providence but reformulates the core point of the theodicy argument thus: ‘What is incumbent upon us as a duty is rather to act in conformity with the idea of that end [that there be no war], even if there is not the slightest theoretical likelihood that it can be realised, as long as its impossibility cannot be demonstrated either’, so that ‘even if the complete realization of this objective always remains a pious wish, we still are not deceiving ourselves in adopting the maxim of working incessantly towards it’, ibid., vol. 6, pp. 354–5. The only substantive discussion I have found is the brief account in Brandt, Bestimmung, 200–2. Treatments of Pope and Kant usually focus on religion; that is, Anne Eusterschulte, ‘Der aufgeklärte Sündenfall. Kants Begriff des Bösen und die Zumutung menschlicher Freiheit’, in Hans Werner Ingensiep, Heike Baranzke and Anne Eusterschulte, eds., Kant-Reader: Probleme und Perspektiven der Kant’schen Philosophie (Würzburg, 2004), 315–48; George Huxford, Kant and Theodicy (Lanham, Maryland, 2020). Henry Allison’s Kant’s Conception of Freedom (Cambridge, 2020) covers the 1750s optimism debate but draws no connections to critical-period works on politics and history. Pope does not appear in leading works such as the pieces collected in Kant’s Idea for a Universal History with a Cosmopolitan Aim: A Critical Guide, ed. Amélie Rorty and James Schmidt (Cambridge, 2012); Pauline Kleingeld’s Fortschritt und Vernunft: Zur Geschichtsphilosophie Kants (Würzburg, 1995); or Elisabeth Ellis’s Kant’s Politics: Provisional Theory for an Uncertain World (New Haven, CT, 2005); and does so only in one unrelated footnote in Reidar Maliks’ Kant’s Politics in Context (Oxford, 2014). See A. W. Wood’s brief translator’s introduction to ‘Conjectural Beginning’ in Immanuel Kant, History, Anthropology, and Education, ed. G. Zöller and R. B. Louden (Cambridge, 2013), 160–2. This is not quite the same thing as what Kant himself had written much earlier, in 1764 or 1765, in an oft-quoted manuscript remark on his own Observations on the feeling of the beautiful and the sublime: ‘After Newton and Rousseau God is justified and from now on Pope’s theorem is true’ (Gesammelte Schriften, vol. 8, p. 59). Here he is thinking of the ‘other’ Rousseau, but it does show at least that he was using both to think through the same problem of theodicy.

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First, Kant had decisively downgraded the status of all theodicy arguments, so that they no longer sought to prove truths about the objective world.59 Instead, in line with the core claims of the first Critique, the arguments were now taken to support only principles for use in certain acts of judgement. Second, in discussing questions of justice and constitutions (leaving behind Leibniz’s focus on the individual’s faith in God), the principal duty was now itself to effect progress by leaving the state of nature for a civil state, whether that be in the sense that a domestic constitutional order ought to reform itself to better approximate the ‘idea’ of a self-governing republic, or, on the international level, that states ought to join up to a universal defensive federation. This was a different perspective than that of either Leibniz or Pope, since even the latter only used progress from anarchy to government as an illustration of how apparent evils might serve a greater good, so that we should not give up on duty and virtue; Pope was not arguing that the very content of our duty was to radically transform the social world. But Kant, the champion of Enlightenment who had absorbed much of Rousseau’s radical critique of the present, was just such a reformer, and he found he could re-purpose the logic of Pope’s illustration to overcome the strong sense in Rousseau that many of his high ideals were unrealisable, be they a republic governed in accordance with the general will among a people once corrupted, or St Pierre’s plan for perpetual peace. In this way, Kant’s pointing to the future was a way of underwriting both the individual’s commitment to acting on duty, and also a sort of society among the likeminded members of a political community who could thus see themselves, despite their differences, as engaged in the present in a common project of enlightenment, if not already as enlightened. Third and finally, Kant’s argument was directed also at states, or the princes who governed them,60 since these were the only actors in a position to carry out such duties of radical reform.61 But because the authority of heads of state depended, for Kant, on their claim to represent the will of the collective sovereign people, so that they cannot do what the people could not do for themselves,62 this meant that they faced different sorts of constraints and had to shoulder different sorts of burdens than any that Leibniz had considered in his battle with Bayle for the devotion of the individual soul. These constraints were political, and derived from debates among jurists and figures like Hobbes and Rousseau, entirely foreign to the concerns of Leibniz’s theodicy. Had Kant thereby managed to drag the reflective conscience of theology out into the political light of day? Or had he only collapsed the politics of republican revolution back into a sort of Protestant ethic? However one answers,

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He underlined this point in the 1791 essay ‘On the failure of all philosophical attempts at theodicy’. ‘Idea for a Universal History’, Gesammelte Schriften, vol. 8, p. 31; Perpetual Peace, Gesammelte Schriften, vol. 8, pp. 370–9. The Metaphysics of Morals, in Gesammelte Schriften, vol. 6, pp. 321–2. ‘Theory and Practice’, Gesammelte Schriften, vol. 8, p. 304.

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what is clear is that Kant had proposed a radically new way of thinking the relationship of time to the authority of the modern state, a way that made a philosophy of history self-consciously a tool for the construction of a certain self-reforming political agent called both state and people, and which others would soon also start to call class or nation. This innovation would have a long and important history in the nineteenth and twentieth centuries, one which may not have fully reached its end even today.

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11 Law’s Histories in Post-Napoleonic Germany Charlotte Johann

In whatever form the historian of law may give his results to the world – and the prejudice against beginning at the end is strong if unreasonable – he will often have to work from the modern to the ancient, from the clear to the vague, from the known to the unknown, … he must work forwards as well as backwards; the stream must be traced downwards as well as upwards. (Frederic W. Maitland)1 INTRODUCTION

In the decades following the end of the Napoleonic Wars in 1813, Berlin’s newly founded law faculty became the scene of a battle between two of Germany’s most prominent legal scholars in the nineteenth century: Friedrich Carl von Savigny, the leading exponent of historical jurisprudence, and Eduard Gans, the foremost advocate of Hegelian legal philosophy. Their dispute exceeded the level of a mere difference of opinion between colleagues. Savigny and Gans represented two rival movements within contemporary jurisprudence, the so-called historical and philosophical schools, whose dramatic exercises in academic tribalism became a notorious feature of German intellectual life in this period. ‘La guerre est flagrante’, remarked the French legal scholar Eugène Lerminier in 1829. ‘The historical school is afraid of philosophy, which it regards as subversive to its scholarship. … In the philosophical camp the purely historical jurists are regarded with pity.’2 Whence these woes? After 1813, Germany’s legal system became the subject of rising intellectual anxiety. As the period marked by the events of the French Revolution, the dissolution of the Holy Roman Empire and the Napoleonic Wars 1 2

F. W. Maitland, ‘Why the History of English Law is not written’, in H. A. L. Fisher ed., The Collected Papers of Frederic William Maitland (Cambridge, 1911), vol. I, p. 493. Lerminier is cited in Reinhard Blänkner, Gerhard Göhler and Norbert Waszek, eds., Eduard Gans (1797–1839): politischer Professor zwischen Restauration und Vormärz (Leipzig, 2002), 324 (27); on Lerminier, see Bonnie G. Smith, ‘The rise and fall of Eugène Lerminier’, French Historical Studies, 12 (1982), 377–400; Donald R. Kelley, Historians and the Law in Postrevolutionary France (Princeton, 1984), 83, 113ff.

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drew to a close and a new European map was being drawn up at the Congress of Vienna, law became a central site of the ensuing struggles to define Germany’s future order. In part, these tensions concerned the legal system’s capacity to facilitate unity within a context of political fragmentation. While the Congress of Vienna yielded neither the resurrection of the German Empire nor the founding of a newly fashioned nation-state, but a cluster of thirty-nine successor states loosely associated within the German Confederation, it left open the possibility of a common legal order. Law, alongside ‘blood, iron and song’, as Frederic Maitland put it, became a vehicle of reinventing German nationhood in the nineteenth century.3 Yet in the absence of national sovereignty, the questions how, by whom and on which basis a German common law should be assembled were contested matters. Who held the jurisdictional authority to define law’s form and draw its boundaries: was it the German states, the German nation or an altogether different agent? At the same time, this search for legal identity had to contend with the transformative legacy of revolution and empire, since the Napoleonic conquest of Central Europe had taken not only a military but also a legal form. Napoleon had tried to introduce his codifications, which claimed to carry the legacy of the French Revolution, in the Confederation of the Rhine, the political order he installed in the place of the Holy Roman Empire in 1806 (but which excluded Prussia and the Habsburg Empire). After the fall of the Napoleonic Empire, the code was repealed in some areas that returned to older legal sources, including the former Grand Duchy of Frankfurt and the Kingdom of Westphalia (which were divided between Prussia, Hannover, Hesse and Bavaria at the Congress of Vienna). But it remained the law of the land in parts of Bavaria, Baden, Hesse, Saxony and the territories along the left riverbank of the Rhine (which were given to Prussia).4 The disruptive effects of these repeated injections and extractions of sources from the German legal system by changing political regimes posed a challenge to what Reinhart Koselleck has called the ‘structural repeatability’ characterising legal time. In this analysis, law, in order to be law, operates under the premise of being applicable to different instances at different moments in time. Its credibility, its promise of equity, rests on its claim to consistency and endurance. This implied repetition need not necessarily come in the form of proclaimed eternity or transcendence (as, indeed, we shall see Savigny argue in this chapter). But, at the very least, it gestures beyond the particular instance, at an individual point in time, on which a 3 4

Frederic Maitland, ‘Introduction’, in Otto Gierke, Political Theories of the Middle Age, trans. Frederic Maitland, (Cambridge, 1900), xvi. On the Prussian story in particular, see Elisabeth Fehrenbach, Traditionale Gesellschaft und revolutionäres Recht: Die Einführung des Code Napoléon in den Rheinbundstaaten (Göttingen, 1983); Reinhart Koselleck, Preußen zwischen Reform und Revolution (Munich, 1989), 47, and passim; for a comparative perspective on Prussia and the Southern German states, see Paul Nolte, Staatsbildung als Gesellschaftsreform (Frankfurt am Main, 1990).

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given rule or norm is brought to bear. Thus, Koselleck argues, law’s inbuilt drive for duration puts its history on a different timescale than political history. The creation and transformation of legal orders, such as the issuance and repeal of legal codes, are political acts that constitute singular events. But the way in which these legal sources are subsequently put to work has its own internal temporality: a rhythm of recurrence rather occurrence.5 The intellectual and institutional battle between Savigny’s historical school and Gans’ Hegelianism unfolded in the aftermath of a chain of events that had punctured the boundary between legal and political time. This, at least, was what the two antagonists could converge on in their rival perspectives on the German legal system. Both characterised the French Revolution and the Napoleonic project as ill-fated attempts to transform universal political principles into law. From 1789 to the introduction of Code Napoléon in Germany, revolution and empire had forced politics into legal time, disrupting the consistent unfolding of the legal system’s internal operations. As a result, post-Napoleonic Germany was facing the loss of what Savigny and Gans called the ‘life’ of law. The legal system threatened to be deprived of the peculiar force that rendered its outcomes meaningful. Seeking to rectify this situation, both Savigny and Gans set out to mend law’s internal structure by historicising it, albeit in radically different ways. Savigny proposed to re-build the German legal system based on the hermeneutically rigorous academic study of pre-revolutionary legal orders, especially classical Roman Law. Gans, by contrast, defended the primacy of legislation as a vehicle of legal continuity by grounding it in an origin story of the modern state. These are not worries that have gone away. The relationship between law, politics and history is still interlaced with conceptual problems troubling legal scholars, legal historians and historians of political thought alike. As Natasha Wheatley has pointed out, Koselleck’s discussion of legal time ties into more recent debates on whether, or to what extent, law can be subject to historical interpretation.6 These ‘method wars’, as Wheatley christens them, have ensued in the first instance between different disciplinary approaches to the history of international law. But they principally concern the larger problem, which is not exclusive to the field of international law but affects the study of law more broadly, of how to approach legal meaning in time. Legal scholars have accused historians, especially so-called ‘contextualists’, of spreading a ‘hermeneutic of suspicion’ by trapping legal texts within the past and branding their use for present practice as ‘presentism’ or ‘anachronism’.7 According

5 6 7

Reinhart Koselleck, ‘History, law, and justice’, in Sediments of Time: On Possible Histories, trans. and ed. Sean Franzel and Stefan-Ludwig Hoffmann, (Stanford, 2018), 117–36, esp. 130f. Natasha Wheatley, ‘Law and the time of angels: International Law’s method wars and the affective life of disciplines’, History and Theory, 60 (2021), 311–30, esp. 321–7. The charge is levelled by Anne Orford, most recently in International Law and the Politics of History (Cambridge, 2021), esp. Chapter 3; it has spurred a wave of reactions from legal and intellectual

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to Wheatley, Koselleck’s portrayal of the repetitive rhythm of legal temporality illuminates where this anxiety about the uses and misuses of history for law is coming from. If the capacity to escape the confines of context is what endows legal claims with worldliness and renders them ‘real’, then lawyers need to hold on to the hermeneutic tools to generate and maintain such ‘transtemporality’.8 Method wars are nothing new, as Savigny and Gans’ guerre flagrante illustrates. In fact, they were fought with extraordinary fervour in post-Napoleonic Germany, even by the standards of the recent controversies. While the battle lines between the rival camps at the time do not exactly map on those of today, many of the core themes do: the search for the legal ‘real’, the political stakes of legal interpretation, the spectre of ideology and the critical versus the creative capacity of historical inquiry. Savigny and Gans’ story thus adds important lessons to our understanding of how lawyers ‘make’ history, starting with a vivid illustration of the fact that the place of the past has historically been a highly contested subject not just between historians and legal scholars but also within the legal discipline. Their rival histories of law indicate the variety of ways in which law can be made to move across time, and show that its ‘structural repeatability’ or ‘transtemporality’ need not necessarily come in the form of transcendence or fictional immortality.9 More broadly, the diversity of concepts of history at play in post-Napoleonic Germany challenges us to consider the agency legal thinkers exercised in engaging historical language. Beyond his thoughts on legal temporality, Reinhart Koselleck is best known for his work on history as a distinctly modern temporality that emerged in Europe in the revolutionary and Napoleonic periods. Koselleck characterises this linear historical imagination as an overarching and all-encompassing totality, an ‘emphatic singular’ that imposed a crushing weight on the consciousness of the modern individual. The work of history, he writes, citing Hegel, ‘becomes a driving force dominating men and shattering their identity’.10 For Koselleck, it was history that ruled the minds of men in the early nineteenth century, not the reverse. But as Savigny and Gans’ case shows better than most, history was a contested category in post-Napoleonic Germany. And the very fact of this contestation suggests that historical language, at least in the realm of legal debate, played its part in setting the course of time rather than being entirely subjected to it.

8 9

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historians, see, for example, Lauren Benton, ‘Beyond anachronism: histories of International Law and global legal politics’, Journal of the History of International Law, 21 (2019), 7–40; Annabel Brett, ‘Between history, politics and law: history of political thought and history of international law’, in History, Politics, Law: Thinking through the International, ed. Annabel Brett, Megan Donaldson and Martti Koskenniemi, (Cambridge, 2021), 19–48. Wheatley, ‘Law and the time of angels’, 325ff. Contrast with the conceptions of law’s temporality and historicity in Chapter 1 by Caroline Humfress, Chapter 2 by Magnus Ryan, Chapter 3 by George Garnett and Chapter 6 by Quentin Skinner in this volume. Reinhart Koselleck, Futures Past: On the Semantics of Historical Time, ed. Keith Tribe, (New York, 2004), 33.

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APPROPRIATING THE PAST

Having been part of a generation that grew up in the shadow of the French Revolution, Friedrich Carl von Savigny was ten years old when the Bastille fell, twenty-six when Napoleon’s armies crossed the Rhine and thirty-four when he signed up to fight for Prussia in the War of the Sixth Coalition, which ended with Napoleon’s defeat at the Battle of Leipzig (though there is no indication that Savigny himself ever actually saw combat).11 When he arrived in Berlin in 1810, having accepted an offer from Wilhelm von Humboldt to join the Prussian capital’s new law faculty, he was already considered something of a Wunderkind in academic circles. Born into a wealthy aristocratic family of Huguenot descent, Savigny had completed his PhD in law at the University of Marburg and started his first lectureship in 1801. Two years later, he had published his first book, a well-received study of the Roman concept of possession. Within a few years of taking up his chair in Berlin he ascended further, well beyond the status of a respected presence in his field. Savigny became the public face of a large-scale project to re-build the German legal system on historical foundations, by propagating a method and canon of jurisprudence that had the capacity, as he put it, to penetrate ‘the historical texture of the law’.12 Savigny first presented his historical approach to the public in his contributions to a debate that came to be known as the codification dispute of 1814/1815, and in which he countered the call of his Heidelberg colleague Anton Justus Thibaut for the creation of a common German civil code.13 Reflecting upon this moment fourteen years later, Savigny observed how significantly it had been shaped by the German encounter with the Napoleonic Empire. The period of war and occupation that preceded the codification dispute had been a time in which ‘the bonds which tied our German fatherland to a foreign arbitrary will [fremde Willkühr], had been fastened ever tighter’. What had moved him to get involved in the debate in 1814, was, he wrote, the experience of liberation from foreign rule, and the uncertainty of Germany’s political future.14 But Savigny’s account of how the Napoleonic Empire had transformed the legal sphere went beyond the mere experience of foreign rule between 1806 and 1813. And to appreciate the complexity of his argument, we need to turn to his understanding 11 12 13

14

Iris Denneler, Friedrich Karl von Savigny (Berlin, 1985), 65–8. Friedrich Carl Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Heidelberg, 1814), 133. Neither Savigny nor Thibaut used the term ‘codification’ in 1814. It was coined by Jeremy Bentham in 1817: Jean-Louis Halpérin, ‘The age of codification and legal modernization in Private Law’, in Heikki Pihlajamäki, Markus D. Dubber and Mark Godfrey, eds., The Oxford Handbook of European Legal History (Oxford, 2018), 907–29, esp. 907; Bernd Mertens, Gönner, Feuerbach, Savigny: Über Deutungshoheit und Legendenbildung in der Rechtsgeschichte (Tübingen, 2018), 119–34, esp. 120; for overview of the entire codification dispute, see Claudia Schöler, Deutsche Rechtseinheit: partikulare und nationale Gesetzgebung (1780–1866) (Köln, 2004), Chapter 3. Savigny, ‘Vorrede der zweyten Ausgabe’ (c. 1828), in Thibaut und Savigny: Ein Programmatischer Rechtsstreit auf Grund ihrer Schriften, ed. Jacques Stern, (Darmstadt, 1959), 202.

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of the empire’s historical origins. In his published works, Savigny did not explicitly discuss the phases of the French Revolution that preceded the Napoleonic invasion of Central Europe. Still, his view can be traced through private letters and notes. As part of a generation too young to have been swept up in the widespread initial excitement among German intellectuals amid the events of 1789, Savigny’s discussion of the revolution, from the time it entered his thinking in the 1790s, centred on its propensity for violence.15 This was not mere physical violence, however. It was intellectual or epistemic (geistig) in nature. As he suggested to his childhood friend Constantin von Neurath at the turn of the years 1798/1799, he hoped that the ‘spirit [Geist] of violent revolution’ in France would soon be extinguished and replaced by a ‘more quiet reform, which, without the heavy price of sanguinary [actions], operates more slowly yet also more safely’. Paris was the place where the ‘reign [Herrschaft] of philosophy was supposed to originate’. Instead, it had become the site of ‘actions of the most glaring injustice’. It was a development, Savigny wrote, that had led him to reflect on ‘the foundation of our jurisprudence’.16 Savigny was not the only German observer at the time to identify the French Revolution as a new and peculiar form of violence that had potentially unsettling consequences for the German legal system. In fact, his later contributions to the codification dispute and his programme for historical jurisprudence drew actively on the work of contemporaries who had risen to prominence as German critics of the French Revolution. These primarily included two figures who have often been categorised as intellectual founding fathers of German conservatism and romanticism: the Hanoverian statesman and public intellectual August Wilhelm Rehberg and the political theorist Adam Müller.17 Both had published works on how to reconstruct political order in the aftermath of Napoleon’s invasion. Like Savigny, Rehberg and Müller emphasised the novel quality of revolutionary violence, which they regarded as the result of an intellectual disposition: the primacy of ‘philosophy’, ‘theory’ or ‘natural law’. Revolutionary politics, in this view, was founded on universal first principles, which were formed and projected by the human mind, 15

16

17

Even though as a student he was an avid reader of Kantian and post-Kantian thinkers who had initially supported the revolution, such as Reinhold, Jacobi, Fichte and Herder, see Dieter Nörr, Savignys philosophische Lehrjahre: ein Versuch (Frankfurt am Main, 1994), 15, and passim. Savigny to Constantin von Neurath, late 1798/early 1799, in Adolf Stoll, ed., Friedrich Carl von Savigny: Ein Bild seines Lebens mit einer Sammlung seiner Briefe. Der junge Savigny, 3 vols. (Berlin, 1927), vol. I, p. 70. They also happened to play significant roles in spreading and popularising the political thought of Edmund Burke in German-speaking Europe. Whether this interest in Burke confirms or undermines their alleged political conservatism and whether the category itself should be used in this context are subjects of historiographical debate: Klaus Epstein, The Genesis of German Conservatism (Princeton, 1966), 547–94; Jonathan Allen Green, ‘Edmund Burke’s German readers at the end of Enlightenment, 1790–1815’, PhD, University of Cambridge (2017); Richard Bourke, ‘What is conservatism? History, ideology and party’, European Journal of Political Theory, 17 (2018), 459f. Savigny had almost certainly read Burke’s Reflections on the Revolution in France by 1814, but did not refer to it in his published writings and only rarely made mention of him in his private notes.

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without any recourse to human experience. It was this mismatch of theory and practice that set the revolution on its doomed course. As Rehberg put it in a 1794 essay, ‘if a system of positive provisions evident from a priori principles of natural law is applied to the human world, nothing except the complete dissolution of the present constitutional order [bürgerliche Verfassungen] can come of it’. The consequences were dire, and lasting. The revolution, Müller suggested in 1809, had inaugurated a time in which the theory and practice of political systems were ‘in conflict [im Widerspruch]’.18 The theory and practice problem remained the lynchpin of German scepticism towards the French experiment as Napoleon rose to power. Yet as the imperial contours of France’s revolutionary project became ever more distinct, the focus of this scepticism shifted from political to legal order. Rehberg, who belonged to an older generation than Savigny and Müller, had originally formulated his critique in direct response to Immanuel Kant’s seminal defence of theory against a perceived empiricist attack in his 1793 essay on the relationship between theory and practice. Kant’s discussion of theory grounded the political order in the judgement of a sovereign legislator capable of administering right [Recht], as prescribed by pure reason.19 But with the Napoleonic invasion of Central Europe, the debate moved to a specifically juridical register. The introduction of the Code Civil in territories annexed or occupied by Napoleon re-orientated the debate away from Recht in the sense of moral right that manifested itself in constitutional law, and towards the relationship between politics and Recht in the sense of positive and particularly civil law. The code brought home (in a literal sense) the practical effects of the revolutionary project to turn theoretical principles into a codified legal system. For Savigny and his fellow critics, the Code Napoléon, as a legal regime, represented not only the most consequential form of imperialism but also the ultimate manifestation of the revolution’s destructive logic. As Adam Müller argued in a passage of his book ‘On the Idea of the State’ that Savigny copied down in his notes, this had to do with the nature of law itself. Recht in the sense of positive law was impossible to construe in merely theoretical terms. Its fabric had a hybrid structure. Law consisted of two elements: one that was intellectual [geistig], and one that was corporeal [körperlich] and positive. Unlike Recht in the sense of moral right, the idea of law presupposed both concept and application. It encapsulated theory and practice. To separate one element from the other, or to reduce one to the other, meant to trade what Müller called ‘the natural, the beautiful drive for 18

19

August Wilhelm Rehberg, ‘Über das Verhältnis der Theorie zur Praxis’ (1809), in Über Theorie und Praxis, ed. Dieter Henrich, (Frankfurt am Main, 1967), 128; Adam Heinrich von Müller, Die Elemente der Staatskunst. Oeffentliche Vorlesungen … im Winter von 1808 auf 1809 zu Dresden gehalten (Berlin, 1809), 3–34, quotation at 3. Richard Bourke, ‘Theory and practice: the revolution in political judgement’, in Richard Bourke and Raymond Geuss, eds., Political Judgement: Essays for John Dunn (Cambridge, 2009), 73–109, at 75–9, 103–5.

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living knowledge [Erkenntnis]’ for a ‘dead word’.20 Rehberg directly linked this view to the introduction of the Code Civil in Germany. The French revolutionaries, he wrote in a book on the code that was published in 1814 and that Savigny went on to discuss in detail in his own writings, had been ‘philosophical enthusiasts’ who tried to introduce ‘perfect freedom and equality’ to humankind. They had believed that ‘all legislation must be deduced from evident principles of reason’. This revolutionary ambition to create a world of universal freedom and equality had not stopped at creating a public constitutional order. It also implied the transformation of individuals’ private relations [Privatverhältnisse]. In this sense, Rehberg argued, the code was anything but a watered-down version of the revolutionary agenda, as some commentators claimed at the time. On the contrary, it brought the revolution to its final conclusion by penetrating every fibre of the social fabric.21 The introduction of Napoleon’s codes in Germany differed from earlier instances of legal change, at least as far as their most vocal critics were concerned. As the legacy of the revolutionary attempt to build a society that did not (yet) exist in practice, the code tore into the live tissue of the legal system. It was an imperialist project in a double sense, signifying an attempt to conquer not only the territory but the very texture of society. Perhaps the most pointed articulation of this view was delivered by Savigny’s friend and student Johann Caspar Bluntschli, who wrote in 1875 that in: times of revolution men’s passions are set free and they are attracted by these abstract doctrines, the more so that they hope by their aid to break through the bounds of law; and this sort of ideology easily obtains a terrible force, and, incapable of creating a new organism, throws down everything before it with the energy of a demon.22

What Savigny added to this widespread discontent with the legal consequences of revolution and what, at long last, brings us back to the themes of this volume, was that the ruptures the Code Napoléon had caused in the German legal system had a temporal structure. The imbalance between revolutionary ideology and legal practice was, in essence, a mismatch between different ways of structuring time. Introducing the code had been an attempt to erase the legal past, by replacing it with a codified legal system which, as Savigny put it, was ‘led by the blind drive against that which exists and the excessive, meaningless expectation of an undetermined future’.23 Savigny hence configured his historical jurisprudence as a barrier

20

21 22 23

Adam Heinrich von Müller, Von der Idee des Staates und ihren Verhältnissen zu den populären Staatstheorien. Eine Vorlesung (Dresden, 1809), 21f.; for Savigny’s notes on Müller, see Friedrich Carl von Savigny, Politik und Neuere Legislationen: Materialien zum ‘Geist der Gesetzgebung’, ed. Hidetake Akamatsu and Joachim Rückert, (Frankfurt am Main, 2000), 163. August Wilhelm Rehberg, Ueber den Code Napoleon und dessen Einführung in Deutschland (Hanover, 1814), iv–viii. Johann Caspar Bluntschli, The Theory of the State (Oxford, 1892), 6. Savigny, Vom Beruf, 55.

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against the ‘terrible’ force of an unrealised transformation. His historical method was meant to reinforce the bounds of law against such external interference. As he argued in one of the two key texts that he produced in the wake of the codification dispute, an introduction to the first volume of the Journal for Historical Jurisprudence, a historical approach grounded the law in the past in order to cut its ties to the powers that be. According to this ‘historical school’ of jurisprudence, as Savigny himself called it: Every age must recognise something that pre-exists, which, however, is necessary and free at the same time. Necessary, in as far as it is not dependent on the arbitrariness [Willkür] of the present. Free, because it is just as little derived from the arbitrary will [Willkür] of another (like the command of a master to his slave), but rather brought forth by the higher nature of a nation as one continually becoming and developing whole.24

This portrayal of a historical Weltanschauung as an antidote to arbitrary interference with the self-contained flow of the legal system also surfaced in Savigny’s founding manifesto for the historical school: the treatise ‘Of the Vocation of Our Age for Legislation and Jurisprudence’, his chief contribution to the codification dispute. It was here that Savigny presented an argument which later came to be known as the Volksgeisttheorie or theory of the people’s spirit (though in the text itself Savigny used the terminology of consciousness [Bewusstsein] rather than Geist).25 According to this theory, law was not the work of a legislator, but the product of a historical evolution that had its ‘original seat’ in the consciousness of a people. Like language or custom, law was the product of the mysterious quiet and invisible forces that emanated from the life of a nation. This, Savigny suggested, was proven by ‘the oldest historical records’, which showed legal systems to be shaped by the national character of a people even at the earliest stage of their development.26 It followed that Germany’s legal system could and should not be based on state legislation and codification. To pretend that law was historically speaking the product of the state rather than the Volk made the legal system vulnerable to political meddling with its intricate operations. For Savigny, such a view reduced the law to the petty concerns raised by the state’s needs or purposes, thus opening the door for ‘fruitless corruption’, ‘arbitrary interference’ and ‘unjust intentions’.27 24 25

26 27

Ibid., 3f. The terms Volksgeist, Volksbewusstsein and Nationalgeist existed before Savigny, although he helped popularise them. In fact, Kantorowicz attributes the earliest usage of the term Volksgeist to Hegel in his unpublished 1793 manuscript Volksreligion and Christentum, see Hermann U. Kantorowicz, ‘Volksgeist und historische Rechtsschule’, Historische Zeitschrift, 108 (1912), 295–325; see also Jan Schröder, ‘Zur Vorgeschichte der Volksgeistlehre. Gesetzgebungs- und Rechtsquellentheorie im 17. und 18. Jahrhundert’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, 109 (1992), 1–47. Savigny, Vom Beruf, 11. Ibid., 133, 113, 16, 161.

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But did this shift of law’s origins from state to nation merely redefine, rather than expel, the political agency within the legal system that Savigny appeared to resist? Whether or not the motif of the Volksgeist was a form of covert nationalism in Savigny’s work has been a much-debated question over the centuries.28 Yet, although Savigny did attribute agency to the consciousness of the nation in the process of law’s historical development, he certainly did not frame it as political agency. On the contrary, having established the link between the people’s spirit and its laws in ‘Of the Vocation’, he went on to suggest that this relationship had historically evolved in such a way that it was now mediated by the only class which Savigny deemed trustworthy when it came to tending and guarding the life of the law: legal scholars. The ‘political element’, he explained, which law’s ‘connection with the overall life of the people’ had carried in the past, had over the course of the legal system’s historical evolution been replaced by a ‘technical element’. As the division of labour progressed in a society, the seat of law had moved from the people’s consciousness to ‘the consciousness of jurists by whom the people is henceforth represented in this function’.29 This was not a reversible development. In fact, Savigny pointed to the Napoleonic Empire to illustrate the detrimental consequences of undoing the historical evolution towards juridical technocracy. Napoleon’s codifications, he suggested, had allowed ‘political elements in the legislation to take precedence over the technical ones’.30 The legal system’s autonomy vis-à-vis the political sphere was thus grounded in its historical trajectory. Law’s history, or Savigny’s version thereof, simultaneously established and fortified the boundaries of the legal sphere. Both within and beyond the legal community of nineteenth-century Germany, Savigny’s account of the people’s consciousness as the original source of law quickly caught on after the publication of ‘Of the Vocation’. It became the flagship theorem of the rapidly growing historical school.31 Yet insofar as the concept had a broader political appeal, it was derived above all from its slipperiness. As Peter Stein has noted, in a society that was emerging from the experience of revolution and empire Savigny had ‘produced something for everybody’. The rulers of the German states searching for new sources of legitimacy, revolutionary democrats asserting popular sovereignty, nationalist advocates of German unification and a growing academic 28

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On the question of Savigny’s nationalism, see Joachim Rückert, ‘Das “gesunde Volksempfinden”– eine Erbschaft Savignys?’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung, 103 (1986), 199–247; on the Volksgeist and historicism, see John Edward Toews, Becoming Historical: Cultural Reformation and Public Memory in Early Nineteenth-Century Berlin (Cambridge, 2004), 281–316. Savigny, Vom Beruf, 11f. Ibid., 55. The Volksgeist became the touchstone of debates between the Germanist and the Romanist strands within the historical school, see Michael John, Politics and the Law in Late Nineteenth-century Germany: The Origins of the Civil Code (Oxford, 1989), 19–32; Kantorowicz, ‘Volksgeist und historische Rechtsschule’.

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class seeking to expand its intellectual influence equally found something to like about the nebulous nature of the Volksgeist and its law-making powers.32 The doctrine owed its popularity precisely to its undefined nature in Savigny’s body of work.33 For all its intrigue, the Volksgeist frustrated generations of hopeful readers who could not help but notice that it seemed to be defined above all by its intangibility. Even Savigny’s colleagues in the historical school admitted that the concept owed its attraction to its disembodied ambiguity. The Volksgeist was a ‘dark workshop’, as Savigny’s close collaborator Georg Friedrich Puchta put it.34 Its output materialised in the historical records of the legal system’s evolution. Yet its maker, the Volk, remained concealed behind a veil of epistemic obscurity. The Volksgeist was a Geist not just in the sense of a collective mind or spirit but also in the sense of a spectre or ghost, whose invisible presence was invoked by Savigny to shield the legal sphere against ‘political’ influences. Savigny’s historical turn thus aimed at a self-sufficient legal system that was governed not by the people or the German states but by scholars trained to parse the legal past for present purposes. Jurists, he suggested in ‘Of the Vocation’, were to use historical inquiry in order to ‘appropriate all the riches of past generations’.35 The past yielded the substance from which the German legal system would be rebuilt in the post-Napoleonic era. Even though Savigny always maintained that this historical approach could be applied indiscriminately to various types of historical legal sources, he acknowledged that he had developed it based on the Roman elements of Germany’s legal system, and particularly Justinian’s codifications. The Corpus Juris Civilis was the only historical legal order marked by the ‘juristic genius’ that had achieved a perfect balance of legal theory and practice, he argued in ‘Of the Vocation’.36 Savigny spent his career developing and promoting the scholarly study of the Corpus. His focus on Roman Law highlights the peculiar novelty of a

32 33

34

35 36

Peter Stein, Legal Evolution: The Story of an Idea (Cambridge, 2009), 63; see also Edwin W. Patterson, ‘Historical and evolutionary theories of law’, Columbia Law Review, 51 (1951), 681–709, esp. 688. Savigny himself never tried to develop his argument about the relationship between law’s historical evolutions and the collective consciousness of a nation. He merely reiterated his argument in a section on the Volksgeist (this time using the term) that appeared in the first volume of his System of Roman Law published in 1840, over thirty years after ‘Of the Vocation’, see Friedrich Carl von Savigny, System des Heutigen Römischen Rechts, 8 vols. (Berlin, 1840), vol. I, pp. 13–21. Georg Friedrich Puchta, Cursus der Institutionen (4 vols., 1841), vol. I, p. 30; see also Haferkamp, ‘The Science of Private Law’, 673 and passim; Siegfried Brie, Der Volksgeist bei Hegel und in der historischen Rechtsschule (Berlin, Leipzig, 1909), 32; on the absence of the Volksgeist from Savigny’s hermeneutics, see Stephan Meder, Missverstehen und Verstehen: Savignys Grundlegung der juristischen Hermeneutik (Tübingen, 2004), 135ff. Savigny, Vom Beruf, 113. Ibid., 126f., quotation at 33; Savigny to Bluntschli, 13 January 1840: ‘I also approve of your joyful anticipation of the future development of German law. Only I have to fundamentally dismiss the view [that] this development stood in a battling, hostile relation to the one of Roman Law, as if the two were fighting for dominance.’ In Wilhelm Oechsli, ed., Briefwechsel Johann Kasper Bluntschlis mit Savigny, Niebuhr, Leopold Ranke, Jakob Grimm und Ferdinand Meyer (Frauenfeld, 1915), 72f.

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historical approach that was intended to generate legal consistency, but not necessarily in a linear manner.37 Earlier generations of Romanists encountered what John Pocock has called ‘the problem of time’. They grappled with Roman Law’s distant historical origins, its patchy historical record, and the question of whether old law could still be applied in a world that had radically changed since the fall of the Roman Empire.38 In Savigny’s case, this problem faded into the background of his relentless advocacy of the very specific function of the past to protect the integrity of the legal system. The problem of time was overtaken by the quest to smooth over the rupturing effects of revolution and empire. History, in Savigny’s hands, became an intellectual force in its own right. It became a weapon to be wielded against an invasion that seemed less tangible, yet even more consequential, than Napoleon’s armies had been. Against the Napoleonic model, Savigny advocated a juridical technocracy based on the scholarly treatment of pre-existing legal sources rather than the creation of new ones. His conception of historical jurisprudence was not the product of naïve nostalgia for a lost legal past. It was a conscious wielding of history against forces he perceived as a threat to the autonomy of the legal system. But Savigny’s attempt to separate the sphere of jurisprudence from the realm of politics did not remain unchallenged. And it is to its most ferocious yet also most sophisticated critic that I now turn. IN SEARCH OF REALITY

The momentum generated by the public reception of ‘Of the Vocation’ brought about a larger paradigm shift within German jurisprudence. Savigny’s historical school dominated German legal scholarship and education until the end of the century. Unlike so many schools that surface in historiographies of political thought, Savigny’s project was neither a retrospectively constructed tradition nor an externally imposed label. As we have seen, he employed the concept himself to distinguish his hermeneutic approach. His school-building efforts consisted in both on a canon of texts and a method for their interpretation. They also forged a community of loyal collaborators and students.39 Both of these developments were made possible by the historical context in which they occurred. As the sociologist Wolfgang Eßbach has argued, the rise of self-identified academic schools was part of Germany’s post-Napoleonic moment. They embodied the view that concrete forms of knowledge had to be rooted in a carefully cultivated and protected community 37

38 39

As Ernst Wolfgang Böckenförde points out, this was a rather ‘unhistorical’ kind of historicism, see Ernst Wolfgang Böckenförde, State, society, and liberty: studies in political theory and constitutional law, trans. J. A. Underwood, (New York and Oxford, 1991), 7. John G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1987), 1–29, esp. 10f. See also Ryan’s Chapter 2, ‘Historicity and Universality in Roman Law’, in this volume. Hans-Peter Haferkamp, Die Historische Rechtsschule (Frankfurt am Main, 2018), esp. 111–268, for the school’s impact on legal practice see 269–312.

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in order to persist and prevail in the academic world. Almost by default, therefore, they simultaneously generated new forms of exclusion and competition.40 And no academic career demonstrated these divisive effects more distinctly than that of Eduard Gans. Gans was eighteen years Savigny’s junior. He was born in Berlin in 1797 to Jewish parents, both of whom were descended from long lines of court Jews. Gans’ life mirrored the social and political transformations that the Jewish community underwent in the post-revolutionary period.41 His family’s wealth fell prey to the financial troubles that gripped Prussia in the wake of the kingdom’s defeat by Napoleon at Jena and Auerstedt in 1806. After his father’s early death, he decided to pursue a law degree rather than to follow the family tradition and join the commercial profession. Having completed a PhD in Heidelberg under none other than Savigny’s antagonist Thibaut, Gans applied for a position at Berlin’s law faculty in 1819, with a view to qualifying for a tenured professorship. On paper, Jews had gained the right to hold an academic position a few years earlier, with the Prussian Emancipation Edict of 1812. But in its review of Gans’ application, the faculty questioned both the quality of his work and his civic status. Its statement suggested that Gans’ Jewish background would constitute an ‘obstacle for his public employment’ and raised the question ‘whether he had converted to a Christian church’.42 As it turned out, it was Savigny who orchestrated this response, in addition to penning a scathingly critical report on Gans’ first book on Roman contract law. Savigny not only blocked Gans’ individual appointment. He also successfully lobbied the Prussian government to suspend the paragraph of the Emancipation Edict that granted Jews access to the academic profession.43 The conflict soon became a public matter that escaped the faculty meeting rooms and ministerial offices in which it had begun. Having been rejected by the Berlin law

40

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Wolfgang Eßbach, Die Junghegelianer: Soziologie einer Intellektuellengruppe (Munich, 1988), 93–8. Savigny suggested in a letter to Ludwig von Arnim that legal traditions, and the Roman tradition in particular, had survived and evolved thanks to the nurturing effects of ‘schools’ of jurisprudence in the medieval period: Savigny to Arnim, 4 April 1822, in Stoll, ed., Friedrich Carl von Savigny, II, 286. For an overview see David Sorkin, ‘Jewish Emancipation: Germany Compared’, in Till van Rahden, Michael Stolleis, eds., Emanzipation und Recht: Zur Geschichte der Rechtswissenschaft und der Jüdischen Gleichberechtigung (Frankfurt am Main, 2021), 17–26. Hanns Günther Reissner, Eduard Gans: ein Leben im Vormärz (Tübingen, 1965), 56; on Gans’ earlier life and family background, see esp. 4–46. Hermann Klenner and Gerhard Oberkofler, ‘Zwei Savigny-Voten über Eduard Gans nebst Chronologie und Bibliographie’, TOPOS, I (1993), 123–48; the so-called Lex Gans went into effect in 1822. For a detailed account of the events leading to this development see Johann Braun, ‘III. Die “Lex Gans” – ein Kapitel aus der Geschichte der Judenemanzipation in Preußen’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung, 102 (1985), 60–98; on the question of Savigny’s anti-semitism, see Thomas Henne and Carsten Kretschmann, ‘Friedrich Carl von Savignys Antijudaismus und die Nebenpolitik der Berliner Universität gegen das preussische Emanzipationsedikt von 1812: Anmerkungen zu einem berühmten Fall der Universitätsgerichtsbarkeit’, Jahrbuch für Universitätsgeschichte, 5 (2002), 217–25.

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faculty, Gans responded by setting to work. In 1824, he published the first volume of what would become a four-part study of inheritance law in a world-historical context, the introduction of which included his first public attacks on Savigny and the historical school.44 More were to come. Until his early death in 1839, Gans published eight books, including a memoir, none of which left the reader in much doubt about his fervent opposition to Savigny’s jurisprudential project. Paralleling this collision course with the historical school was Gans’ turn to Hegelianism. Beginning with his 1824 history of inheritance law, he explicitly aligned his legal scholarship with Hegel’s Philosophy of Right that had been published three years earlier. It was an open secret in nineteenth-century Germany that no love was lost between Savigny and Hegel, in intellectual or in personal terms. The philosopher, who had taken up his chair in Berlin 1817, had made a pointed remark in the Philosophy of Right about Savigny’s critique of codification as ‘one of the greatest insults [größten Schimpfe]’ to both the nation and the legal profession.45 Savigny, in turn, detested Hegel’s ‘arrogant and superficial dismissal of other disciplines’, and his ‘wry, twisted, confusing conduct’. He felt threatened by Hegel’s presence at the Berlin university, and claimed that ‘the Hegelians are plotting more and more openly to gain complete control [ausschließliche Herrschaft], and are supported in this ambition by some very influential people’.46 Savigny and Gans’ guerre flagrante thus played out on several levels: the personal and institutional as well as the intellectual. And undoubtedly, Gans’ Judaism played a role in drawing, and sharpening, the battlelines. After all, it was only with his conversion to Catholicism in 1826 that Gans’ academic career began to blossom. His Hegelian associations helped him obtain the necessary political support to finally make his way into the Berlin law faculty, a development that brought the institutional conflict with Savigny to a head. When Gans was appointed to an adjunct professorship, Savigny spread rumours that he would resign his chair and move to a position in Göttingen. When Gans was given a chair in 1828, Savigny announced his withdrawal from all administrative duties in the faculty.47 Still, the multi-layered nature of this struggle should not undermine the intellectual substance of Gans’ critiques of Savigny’s historical jurisprudence. While the institutional struggle between the two unfolded behind the closed doors of faculty meeting rooms, its intellectual dimension constituted a matter of public interest, reaching audiences well beyond the walls of the university. As a newspaper commentary observed in 1839, ‘the scholarly dispute between the local professors Gans and 44 45 46

47

Eduard Gans, Das Erbrecht in weltgeschichtlicher Entwickelung. Eine Abhandlung der Universalrechtsgeschichte, 4 vols., (Berlin, 1824), esp. vol. I, pp. v–xli. Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts (Berlin, 1821), 210. Cited in Wolfgang Schild, ‘Savigny und Hegel’, Anales de la catedra Francisco Suárez, 18–19 (1979; 1978), 271; Savigny in letters to Georg Friedrich Creuzer, 6 April 1826 and 6 April 1822, in Stoll, ed., Professorenjahre, 326, 288. Johann Braun, ‘“Schwan und Gans”: Zur Geschichte des Zerwürfnisses zwischen Friedrich Carl von Savigny und Eduard Gans’, Juristenzeitung, 34 (1979), 772f.

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Savigny is brought up regularly even among the non-legal public [nicht-juristisches Publikum]’.48 And Gans himself insisted that his criticisms transcended any personal differences that might have existed between Savigny and himself. ‘The narrowness, the dullness and the mummy-like shape that this … school took on, its harmful influence on legislation and legal reform [Rechtsentwicklung] … turned me into its adversary’, he wrote in the Hegelian house journal, the Hallische Jahrbücher, in 1840. ‘Not personal considerations, as with those who like to pretend that they only know the personal and nothing else’.49 What, then, did Gans and Savigny’s intellectual differences consist of? On the surface, Gans simply dismissed Savigny’s use of history as a way to restore the German legal system. He lost no time in pointing out that Savigny’s method was ultimately a veiled construction of legal authority that mobilised history to build an epistemic firewall around the sphere of law, accessible only to academically educated jurists. In Gans’ words, the historical school had ‘given rise to the strange conflict, in which … the clear vocation [Bestimmtheit] of legal scholarship to serve the state, and only the state, dissolved into the mist of an alleged historical science (Wissenschaft), and therefore left this intention behind’.50 He portrayed Savigny as a hopeless antiquarian, who blindly and arbitrarily ascribed contemporary meaning to the textual records of Germany’s legal past. ‘If it was not written in the history book, it would not exist’, was Gans’ summary of Savigny’s historicist positivism.51 He attacked the view that law, in order to be law, necessarily had to be derived from a previously existing instance. Historical jurisprudence, Gans argued, was based on a misguided conception of the very nature of law. Appropriating the law of the past meant that it ceased to belong to history. Law by virtue of being practicable and applicable came alive only in the present. Its meaning could not be derived and transferred from the past in the way that Savigny and his colleagues suggested. ‘Every past’, Gans wrote, ‘is quite simply dead to the present’.52 For Gans, the jurisprudence of the historical 48

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Cited in Johann Braun, ‘Der Besitzrechtsstreit zwischen F. C. Von Savigny und Eduard GansIdee und Wirklichkeit einer juristischen Kontroverse’, Quaderni fiorentini per la storia del pensiero giuridico moderno, 9 (1980), 458. Cited in Norbert Waszek, ed., Eduard Gans: (1797–1839); Hegelianer – Jude – Europäer; Texte und Dokumente (Frankfurt am Main, 1991), 54. Gans, Das Erbrecht in weltgeschichtlicher Entwickelung, vol. I, p. xxix. Eduard Gans, Naturrecht und Universalrechtsgeschichte: Vorlesungen nach G. W. F. Hegel, ed. Johann Braun, (Tübingen, 2005), 57. Note that this edition synthesises different transcripts of Gans’ lectures from 1827 to 1829. (Hegel took back the lecture course in 1831 after a fallout with Gans, allegedly because Gans’ lectures drew a significantly larger audience than Hegel’s, only for Hegel to die two weeks into the term.) Gans, Das Erbrecht in weltgeschichtlicher Entwickelung, vol. I, p. xiii; this part of Gans’ argument was largely congruent with Hegel’s insistence that a ‘historical view of legal relations’ could not restrict itself to ‘historical retrospection [geschichtliche Rücksicht]’. Hegel did not explicitly name Savigny or the historical school in laying out his critique but made unmistakably pointed references to the academic re-discovery of Roman Law in the introduction of his 1818/1819 lectures on the philosophy of right, see Georg Wilhelm Friedrich Hegel, Vorlesungen über Rechtsphilosophie, ed. Karl-Heinz Ilting, (Stuttgart, 1973), vol. I, p. 232f.

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school consisted of reversed anachronisms. It unnecessarily, and unsuccessfully, historicised law’s present. But there was more to Gans’ legal thought than his misgivings about the historical school, particularly since he did not entirely abandon a historical perspective on law. On the contrary, his debate with Savigny unfolded on historical grounds. Gans suggested as much to Jeremy Bentham, during a dinner at Bentham’s house in London on, according to Gans’ recollection, an exceptionally foggy night in the autumn of 1831. The invitation had been passed on to Gans by Abraham Hayward, who happened to be the English translator of Savigny’s ‘Of the Vocation’. It is worth highlighting that it was Bentham, of all legal thinkers, to whom Gans clarified his commitment to history. Bentham’s own ferocious advocacy of codification as the basis of legal systems is sometimes compared to the German codification dispute, with Bentham, Gans and Thibaut on one side, against Savigny and Burke on the other. Indeed, Bentham himself made much of the distinction between historical and non-historical legal thought. As Hayward suggested to Gans, Bentham knew him to be ‘an enemy of the historical school, just as he has always been an enemy of historic England. He therefore regards you as the German Bentham, and wishes to behold his likeness.’ And sure enough, Bentham spent his evening with Gans discussing his pan-European crusade against ‘the historical school’.53 Gans, however, was not inclined to join Bentham’s anti-historical alliance. For, as Gans explained, his dispute with the historical school was ‘not directed against history, but merely against the way in which it [history] is to be considered’.54 Gans’ ‘consideration’ of law’s history centred on the modern state (he used the word ‘modern’). The Hegelian project, he argued, was the exact opposite of Savigny’s attempt to isolate the legal system from outside interferences.55 It aimed to resolve the legal challenges of Germany’s post-Napoleonic moment by merging the sphere of law into the realm of politics, and placing it under the exclusive authority of the German states. As he wrote in his introduction to the second edition of Hegel’s Philosophy of Right, published in 1833, two years after the philosopher’s death, one of Hegel’s most significant accomplishments had been to lift a barrier erected not merely by the historical school but by even earlier generations of legal thinkers between the politics and the law of the state (Staatsrecht). Law and politics, ‘which past centuries separated’, would now ‘reunite and evolve organically’. Since the

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54 55

‘In Poland, in France, in Spain and Portugal, and above all in my own homeland I have always fought against the historical school’: Eduard Gans, Rückblicke auf Personen und Zustände (Berlin, 1836), 213, Hayward’s quotation at 201; on parallels between the British and German debates, see, for example, René Wellek, ‘Ein unbekannter Artikel Savignys über die deutschen Universitäten’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, 51 (1931), 529–37; Kelley, Historians and the Law in Postrevolutionary France, 54f. Gans, Rückblicke auf Personen und Zustände, 205 (emphasis added). See also John Edward Toews, Hegelianism: The Path Toward Dialectical Humanism, 1805–1841 (Cambridge, 1981), 129.

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seventeenth century, Gans suggested, an abstract distinction had appeared between the study of politics and legal philosophy. With the emergence of the concept of the state (to which we will come), politics came to be regarded as the evolving life of the state, while law constituted a mere static frame. If the state was imagined as a body, then politics was its ‘physiology’ and law its ‘skeleton’, entirely ‘void of life and movement’.56 Gans’ historical approach sought to revitalise a legal system that had lost the peculiar dynamic which made law come alive. Indeed, the irony of Gans and Savigny’s story is that both professed to being driven by very similar desires to create space for law to ‘move’ and ‘live’. Both turned to historical perspectives as a way of rendering visible the conditions under which law truly could ‘be’ law. And both gave historical accounts of how this order had been disturbed or undermined by recent events. In Gans’ case, this diagnosis of Germany’s post-Napoleonic legal trouble was embedded in a world-historical survey of the dialectical evolution of the ‘idea’ and the ‘reality’ of law, culminating in the rise of the state as the ultimate curator of the legal order. The most fully developed version of this argument can be found in Gans’ lecture course on legal philosophy that he took over from Hegel in 1827. Gans adopted most of the structure and content of Hegel’s syllabus (which, in turn, closely resembled the published version of Hegel’s Philosophy of Right), but added two explicitly historical sections. One was titled ‘universal legal history [Universalrechtsgeschichte]’ and covered historical manifestations of natural law from East Asia to Scandinavia (the Americas, the Pacific world and sub-Saharan Africa did not make an appearance) across roughly three millenia.57 The second, on which we will focus here, discussed ‘the historical development of different conceptions of natural law since antiquity’. It portrayed the evolution of European legal philosophy from ancient Greece to early nineteenth-century Germany (it also bears an uncanny resemblance with the canon of what came to be known as the history of European political thought).58 Gans’ journey began in ancient Greece, the place where, he contended, philosophy first emerged and came to be personified by Socrates, Plato and Aristotle. The Greeks, we learn, invented philosophy but did not have a concept of law. The Romans invented the concept of law (ius), yet they did not have philosophy proper. The middle ages had neither. They saw the rise of the ‘concept of Christianity’ which ran contrary to both law and philosophy. Then, after brief 56

57

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Eduard Gans, ‘Vorrede des Herausgebers’, in Georg Wilhelm Friedrich Hegel, Werke: Grundlinien der Philosophie des Rechts, oder Naturrecht und Staatswissenschaft im Grundrisse, ed. Eduard Gans, (Berlin, 1833), vi ff. Gans also adopted Hegel’s world historical model in the sense that he placed different legal cultures in a hierarchy of world historical development, including statements such as ‘The Orient does not have history in the strictest sense’: Gans, Naturrecht und Universalrechtsgeschichte, 247, on Gans’ departure from Hegel’s material, see editor’s introduction, xlii–lvii. Gans, Naturrecht und Universalrechtsgeschichte, 9.

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cameo appearances from ‘the Church’ and ‘scholastic philosophy’, Gans’ narrative gained significant momentum with the formation of the ‘modern world [die moderne Welt]’, which was in large part defined by the consequential emergence of the concept of the state. This process, he argued, commenced in the fifteenth century, when ‘the term “state” acquires … a meaning’ and ‘each state begins to appear as an individual, and becomes a unity’. Crucially, for Gans, the concept of the state was not the achievement of philosophy or legal scholarship. States acquired a political reality with and through historical events such as the 1494 Italy expedition of France’s Charles VIII and the English Revolution. ‘Monarchs’, he explained, ‘become more powerful and the states grow stronger. There is more and more talk about the constitution of the state, the judiciary, the army and the finances. Thus, the thoughts are being drawn in this direction.’ It was only after the fact that the state became a subject of philosophical inquiry, with such thinkers as Bacon, Machiavelli, More, Bodin and Grotius.59 The state, hence, was a double-faced entity. It existed as universal concept (or theory) and as historical particularity (or practice). And Gans’ fast-paced tour d’horizon through European legal thought was organised around the key claim that the modern state was the only agency capable of integrating these two dimensions into a stable legal epistemological framework. In antiquity, Gans argued, the Romans perfected the art of individual case construction, but did not have the ‘philosophical tools’ to elevate their findings to a universal level. The Greeks, on the other hand, negotiated particularity equipped with a universal concept of justice, but without the capacity to engage in the intricate juridical deliberations that characterised Roman Law. The significance of the modern state lay in its ability to synthesise the universality of philosophy with the particularity of legal practice. In other words, the state reconciled theory and practice. Or, to use Gans’ Hegelian terminology, the state, ‘and only the state’, had the capacity to strike a balance between the ‘ideal’ and the ‘real’.60 But while the history of legal philosophy was geared towards the state’s consolidation of Germany’s post-Napoleonic legal system, difficulties had occurred along the way. Even though Gans embraced the Code Napoléon as an example of a statecontrolled legal system and celebrated Napoleon as one of history’s great legislators (along with Solon, Lycurgus and Moses), he could not help but confront the complicated legal legacy of the revolutionary and imperial era that had so troubled Savigny’s legal thinking.61 Gans divided the historical evolution of modern legal philosophy, the evolution that followed the emergence of the concept of the state, into three stages: ‘well-founded [begründete]’, ‘revolutionary’, and ‘restorative [rückkehrende]’ legal philosophy. The founding phase of modern legal thought took 59 60 61

Ibid., 10–30, quotations at 30. Ibid., 3. On Napoleon, see ibid., 374.

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place in the seventeenth and eighteenth centuries, and was characterised by a collective effort to place the emerging concept of the state on a sound speculative basis. Descartes, Spinoza, Hobbes, Pufendorf, Thomasius, Wolff and Montesquieu were included in this category. As mentioned, in Gans’ narrative, legal philosophy at this stage was reconstructing the pre-existing shape of the state. Well-founded legal philosophy, Gans suggested, ‘contemplates history and that which exists and seeks to trace the natural law in it’.62 Its purpose was to stabilise, rather than transform, the surrounding historical reality. The tide turned in the course of the eighteenth century, with the rise of revolutionary legal philosophy, which Gans also occasionally referred to as ‘the Enlightenment [die Aufklärung]’, represented by Kant, Rousseau, the Physiocrats, Sieyès, Mirabeau and Fichte. What made these thinkers revolutionary, Gans suggested, was their categorical opposition to the political reality surrounding them. ‘This philosophy’, he announced, ‘is based on the notion that the existing status is no good’. In its place, they strove to ‘build a new world from an idea [Gedanke]’, thus reversing the relationship between theory and practice, between idea and reality. With the French Revolution and its descent into terror, the violent and destabilising consequences of this move became apparent. As Gans described it: the government is something particular, hence – away with it! And thus all social life ends in terror and death. Both, terror and death, are not a disintegration of the French Revolution, but the greatest consequences of its ideas [Gedanken]. For where the Enlightenment overthrows the government, a new government comes, which, however, is again a positive thing, and in as far as there is any government at all, it is overthrown by the Enlightenment. Thus, one comes not merely to overthrow the harmful conditions but to negate all conditions in general, until one arrives at man’s existence itself. Human life itself is negated. Out of this negation arose the terror.63

In Gans’ grand historical narrative, the revolutionary terror was the ultimate undoing of law. It was premised on the negation of the legal ‘real’. The revolution, he suggested, had ‘created a new foundation for natural law in the sense that the law is derived, not from the historical, but purely from reason’. In doing so, the revolutionaries failed to recognise that ‘where we think in universals [das Allgemeine], we must also have the category of the particular.’64 They created a structure within which an ‘ideal version of natural law’ was ‘juxtaposed with reality’.65 Yet for Gans, 62 63 64 65

Ibid., 30f. Ibid., 48f. Ibid., 49. Ibid., 50; as Richard Bourke notes, this was a way of thinking about revolution which came to prominence in political theory in the twentieth century, for example, in the work of Michael Oakeshott, Jakob Talmon, Isaiah Berlin, John Dunn and Bernard Williams, see Bourke, ‘Theory and practice’, 75 (6); it also played an important role in historiographical debates about the French Revolution in this period, see Samuel Moyn, ‘On the intellectual origins of François Furet’s masterpiece’, The Tocqueville Review, 29 (2008), 59–78, esp. 67, and passim.

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as for Savigny, such an endeavour ran against law’s very nature. ‘What law is’, Gans argued, ‘has realised itself, and realises itself every day; law that is merely theoretical has never been law.’66 Gans acknowledged that in as far as they both responded to the revolutionary destruction of the legal order, his and Savigny’s projects were not entirely dissimilar. He included the historical school along with Adam Müller in his third and last historical stage of modern legal philosophy: the restorative phase, in which legal philosophers in the aftermath of the Napoleonic era set out to reconstruct the legal system and adopted a historical approach for this purpose (further thinkers in this category included de Maistre, Schlegel, von Haller, Stahl, Constant, Saint-Simon and, somewhat perplexingly, the self-declared enemy of the historical school, Bentham). Historical jurisprudence hence featured in Gans’ account as one among many intellectual attempts to ‘return to reality’ in the postNapoleonic era.67 Both thinkers defined their projects as attempts to restore the foundations of Germany’s post-Napoleonic legal system. It was the means and not the ends underlying their respective historical turns that were at stake in their confrontation. Gans’ lectures concluded with a discussion of the state’s capacity to regenerate the legal system, challenging Savigny’s implication that political authority had no part in this project. On the contrary, Gans argued, the history of law inevitably gravitated towards the state. True legal scholarship (Rechtswissenschaft) that traced law’s self-realisation over time ‘must arrive at the state as the supreme fruit [höchste Frucht] of the law’.68 Rather than instructing his students on the re-purposing of pre-existing legal sources, as Savigny did, Gans ended his course with a section on law-making. The highest form of jurisprudence, he suggested, was the ‘science of legislation [Wissenschaft der Gesetzgebung]’ that embodied the perfect union of philosophy and history. The work of state legislators had to be informed by both ‘philosophical insight’ and ‘knowledge of the real’ drawn from the past. But they could not limit their law-making to the recycling of historically existing legal sources, by re-introducing that ‘old stuff’, as Gans described it. Legislators served the present. They were supposed to ‘eavesdrop for the spirit of [the] time’. Legislation, although crafted in the presence of historical expertise, derived its ‘life’ not from the past but from the authority of the state. ‘The state’, Gans declared, ‘is not merely … the case in which dead elements are kept but … that which gives meaning to these elements. It fertilises and elevates them. In it, law comes to its existence’.69 It was the historically evolved essence of the state with its capacity to bridge the gap between ideal and reality that restored legal meaning in the shadow of revolution.

66 67 68 69

Gans, Naturrecht und Universalrechtsgeschichte, 50, 6. Ibid., 53–65, quotation at 53. Ibid., 6. Ibid., 204, 373f.

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CONCLUSION

Can we read Savigny and Gans’ debate as primarily an ideological dispute? It is certainly tempting to cast their attitudes towards Germany’s legal past and present as expressions of conservative and liberal politics: one seeking to recreate a lost past, the other elevating the present and pushing ahead towards a brighter future.70 In Koselleck’s analysis of modern historical consciousness as a linear temporality emerging in the revolutionary period, the historical school and Hegelian philosophy of history are distinguished in such a way. What ‘Progress and Historism share in common’ is that ‘the categories of acceleration and retardation (evident since the French Revolution) alter the relations of past and future in varying rhythm’, Koselleck writes.71 One side moved upwards, the other downwards in the stream of history, yet both were immersed in its flow. But such an interpretation presupposes that law and politics operate within the same time-space. And as Koselleck himself implies in his work on law and its ‘structural repeatability’, there is a cost to flattening law’s temporal patterns into the history of politics. The question of whether law and politics are part of the same history was precisely the issue at stake in the guerre flagrante between Savigny and Gans, just as it is in the more recent ‘method wars’ between historians and legal scholars. What sets their dispute apart, however, is that they were confronting the question in the aftermath of political events that had disrupted the legal system and significantly raised the stakes of negotiating the relationship between the two spheres. Savigny and Gans shared an understanding that the Napoleonic Empire and the revolution from which it had evolved were not just any form of politics. They were attempts to introduce a new order based on abstract principles that failed to connect to what Gans called the ‘real’ and Savigny termed the ‘pre-existing’. This continuity between the universalising grasp of legal principles and the particular nature of their application was what, for both Gans and Savigny, law’s histories were meant to establish. Neither thinker turned to history naïvely or unwittingly but for the specific purpose of re-writing the rules of legal ordering in post-Napoleonic Germany. Of course, Savigny and Gans had vastly disparate views on how to generate meaning and legitimacy, or ‘life’, from legal continuity. In the context of Germany’s political division, Savigny’s dark workshop of Romanist dogmatic carpentry made for a very different collective subject of legal authority than Gans’ historically matured state as the height of legislative skill. But the force with which they pursued these rival projects at one another’s expense raises a larger question about the implications of negotiating legal temporality, on which I shall end. The raw intensity of their conflict suggests that neither thinker regarded this debate as an idle discussion of merely 70

71

For an overview of interpretation of Savigny and his opponents along such ideological lines, see Joachim Rückert, Idealismus, Jurisprudenz und Politik bei Friedrich Carl von Savigny (Ebelsbach, 1984), 160–8. Koselleck, Futures Past, 41.

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speculative value but as a contest with concrete consequences. Both Savigny and Gans believed in their capacity to reshape the legal order by historicising it, hence the urgency of their struggle. At the same time, both laid out necessary and ostensibly unchanging criteria for how to establish that order. Regardless of the time and place, law came alive only when its theory and practice, the ideal and the real, were made to converge. Koselleck and Wheatley’s concepts of law’s ‘structural repeatability’ or ‘transtemporality’ imply a similar tension between the invariants of what law requires to be law and the possibility of writing a history of legal time. If the rule of law is primarily a temporal condition that requires active perpetuation, then where runs the boundary between making and maintaining, adjusting and undermining its time? How far-reaching is the power of legal scholars’ storytelling to create legal life? These were the challenges raised by the historical turn of post-Napoleonic legal thought.

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12 After Historicism: The Politics of Time and History in Twentieth-Century Germany Waseem Yaqoob

… an intellectual force of extraordinary significance; it is the real agent of our world-view, a principle which not only organizes, like an invisible hand, the whole of the work of the human sciences, but also permeates everyday life. (Karl Mannheim)1 INTRODUCTION

In September 1955 Rome was host to the tenth International Congress of the Historical Sciences, the first of its kind to be attended by representatives of the Vatican and the Communist Bloc. Although the event promised to heal professional rifts caused by the Cold War, the Marxism of the Eastern Bloc participants posed a challenge to their counterparts from Western Europe – especially those inhabiting the ‘citadel of historicist idealism’ (as one contemporary put it) of the late Benedetto Croce.2 Claiming ‘that life and reality are history and history alone’, Crocean storicismo identified history and philosophy and stressed the primacy of ideas over material conditions in driving historical change.3 Yet even as they channelled the Crocean spirit, speakers at the congress took a conciliatory approach, highlighting the mutability of values as a basis for mutual understanding. With its storied pedigree, historicism still seemed a useful term of art for bridging geopolitical divides. Outside the world of historians, however, the relativity of ideas and values was painted in darker hues. Present on the fourth day of proceedings, Pope Pius XII attacked historicism for positing ‘change and evolution in the whole spiritual 1 2

3

Karl Mannheim, ‘Historicism’ [1924], in Essays on the Sociology of Knowledge, ed. Paul Kecskemeti, (London, 1952), 84. Donald C. McKay, ‘Tenth International Congress of Historical Sciences’, American Historical Review, 61 (1955): 504–11; E. F. Jacob, ‘Homage to history from 1,500 Scholars’, The Times (London) 10 Sept. 1955; For ‘citadel of historicist idealism’, see Charles F. Delzell, ‘Italian historical scholarship: a decade of recovery and development, 1945–1955’, The Journal of Modern History, 28.4 (1956), 380. Benedetto Croce, History as the Story of Liberty, trans. Sylvia Sprigge, (London, 1941), 65.

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reality, in the understanding of the truth, in religion, and in morality’. Denying ‘everything that is permanent, eternally valid and absolute’, the historicist worldview was ‘irreconcilable with the Catholic conception of the world’.4 The Church had long waged battle against historicising Biblical criticism, but Pius’ remarks reflected particular animus towards Croce’s elevation of temporalised philosophy above Catholic doctrine. This was familiar terrain for the Pope, who five years before had called for the refutation of historicism, Marxism and existentialism as creeds undermining ‘the foundation of all truth and absolute law’.5 The struggle had been taken up by Thomist philosophers Jacques Maritain, Étienne Gilson and Josef Pieper, who vindicated the timelessness of Christian metaphysics with fresh interpretations of classic texts. They found a secular ally in Leo Strauss, who in 1952 attacked R. G. Collingwood, a keen reader of Croce, for abetting ‘the loss, or the oblivion, of the natural horizon of human thought, by denying the permanence of the fundamental problems’.6 Where Christian thinkers saw historicism as a threat to Occidental values, liberal positivists such as Karl Popper saw a ‘methodology of the social sciences that … aims at historical prediction’ in order to discover ‘iron laws’.7 Popper rebuked Comte and Mill for seeking historical patterns with which to guide social change, and attacked Plato, Hegel and Marx as historicist prophets of tyranny. His freewheeling intellectual history withstood little scrutiny but attracted a wide audience by hitching the history of ideas to a plausible account of Soviet Marxism. Crucially, Popper also took aim at Lenin’s innovation to Marxist theory, in which objective historical knowledge was fused with the time-bound judgement of the revolutionary party.8 The original target of Popper’s critique of historicism, however, had been fascism and ‘tribal’ nationalism rather than Marxism. In The Open Society and its Enemies he condemned a line of speculative German philosophies of history stretching from Herder and Hegel to Spengler for inspiring radical reaction (other Anglophone authors such as Isaiah Berlin and W. H. Walsh made similar claims). Yet such associations were liable to cause confusion because the writers most identified with Historismus – such as Ranke– repudiated general laws of history in favour of careful empirical study of past particulars, albeit with a strong providential undertow. Popper knew this, and distinguished pernicious historicism from the benign relativism of

4

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Pope Pius XII, ‘Discours du Pape Pie XII aux participants au Xe Congrès international des Sciences historiques,’ 7 Sept. 1955, last accessed 9 Apr. 2020: www.vatican.va/content/pius-xii/fr/speeches/1955/ documents/hf_p-xii_spe_19550907_vous-avez-voulu.html Pope Pius XII, ‘Humani Generis’, 12 Aug. 1950, last accessed 9 Apr. 2020: www.vatican.va/content/ pius-xii/en/encyclicals/documents/hf_p-xii_enc_12081950_humani-generis.html Leo Strauss, ‘On Collingwood’s philosophy of history’, The Review of Metaphysics, 5.4 (1952), 586. Karl Popper, ‘The Poverty of Historicism, I.’, Economica, 11.42 (1944), 86. Karl Popper, The Open Society and Its Enemies: Vol. 2: The High Tide of Prophecy: Hegel, Marx, and the Aftermath (London, 1945), 56–7.

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‘historism’– still in the 1940s a common translation of Historismus.9 But he did little to clarify the distinction, and as Historismus became more frequently translated as ‘historicism’, his polemics added to growing suspicion of historical theorising in the human sciences. Popper wrote at a time when space for historical reflection on politics at the Cold War university was being squeezed by the rise of behaviouralist social science, statistical methods and analytical philosophy, all of which promised greater rigour and certitude.10 Of course, the positivism heralded by Popper did not mean the end of historical approaches to political thought. The precepts of Italian historicism were adapted via Collingwood by Anglophone practitioners of contextualism such as Quentin Skinner and John G. A. Pocock. But for the political thinking associated with Historismus, positivist hegemony and the ‘Westernisation’ of intellectual life in the Bonn Republic seemed to mark the end of the road.11 Since the early nineteenth century, German scholars had viewed politics in terms of the realisation of freedom through an organic state personality whose legitimacy derived from its protection of national Kultur rather than an atemporal social contract.12 This tradition reached its apogee with the so-called Prussian School, before declining with the advent and catastrophic end of the Third Reich. Yet, due in part to the flight of intellectuals from fascism, the characteristic concerns of Historismus – with the temporal situation of political action and judgement, the historically given character of conflict, and the politics of historiography – had a long afterlife. This chapter looks at how four thinkers – Friedrich Meinecke (1862–1954), Carl Schmitt (1888–1985), Reinhart Koselleck (1923–2006) and Hannah Arendt (1906–1975) – reconceived the temporality of politics when the time of the nationstate assumed by Historismus seemed at an end. For Meinecke, the Great War showed there could be no teleological resolution of the tensions between nationalism and cosmopolitanism, prompting him to historicise reason of state, the Machiavellian doctrine sanctioning disregard for moral or legal scruple in the name of princely glory or national interest. What was revealed was a perpetually unstable relationship between ethics and political power. To Schmitt, Meinecke’s narrative was an unhistorical moralism that obscured the basis of sovereignty and its operation within a multiplicity of synchronous times rather than the linear, progressive time assumed by liberalism. Schmitt underlined the contingency of history and

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Karl Popper, The Poverty of Historicism (London, 1957), 17; On this shift in translation, see Dwight E. Lee and Robert N. Beck, ‘The meaning of “Historicism”’, The American Historical Review, 59:3 (1954), 568. Mark Solovey and Hamilton Cravens, eds., Cold War Social Science: Knowledge Production, Liberal Democracy, and Human Nature (New York, 2012). Alfons Söllner, ‘Ernst Fraenkel und die Verwestlichung der politischen Kultur in der Bundesrepublik Deutschland’, Leviathan, 30:1 (2002), 132–54. The classic English-language study of this tradition is Leonard Krieger, The German Idea of Freedom: History of a Political Tradition (Boston, 1957).

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identified the roots of European statehood in the dispossession of non-European peoples rather than acts of sovereign legality embedded in national history. For Koselleck and Arendt, Schmitt’s assertion of the disrupted character of time underlined the need to re-define the temporality of political agency amid the expanded space and accelerated time of a globe threatened by nuclear destruction. Situating these authors against the backdrop of Historismus draws our attention to oft-neglected continuities in mid-twentieth-century political thought. The year 1945 was not ground zero for intellectual life in Germany. Despite the establishment of a positivistic science of democracy at German universities, earlier theories about law, politics and society remained influential.13 Across the Atlantic, the impact of émigrés on the historical and political sciences in the United States is well known.14 Whether to insist on their originality, or avoid embarrassment, theorists such as Arendt and Hans Morgenthau were discreet about earlier interlocutors such as Heidegger or Schmitt. Nevertheless, thinkers on both sides of the Atlantic who engaged with the legacy of Historismus were able to give a very different account of the relationship between theory, method and history to that emerging from post-war positivism. In Britain and the United States the anti-totalitarian search for ethics to stabilise democracy opened the way for the universalism of John Rawls, in turn countered by theorists who criticised liberal universalism by appealing to conflict and contingency and history.15 In this still ongoing theoretical contestation, stylised notions of time and history have effaced earlier arguments for a different kind of ‘realism’ that was informed by reflection on the politics of historical time and the preconditions of historical experience. HISTORICISM

In one of the earliest monographs on Meinecke’s thought, Swiss historian Walther Hofer remarked that Historismus was a ‘struggle-concept’, ‘attacked, asserted, discarded, befogged in the tumult of countless discussions and polemics of the recent past and present’.16 There has been little consensus since over the origin, content or meaning of the term.17 One early instance of its use is instructive. In a fragmentary note from 1797, Friedrich Schlegel praised Johann Winckelmann’s 13 14

15 16 17

See, for example, Clara Maier, ‘The Weimar origins of the West German Rechtsstaat, 1919–1969’, The Historical Journal, 62:4 (2019), 1,069–91. Udi Greenberg, The Weimar Century: German Émigrés and the Ideological Foundations of the Cold War (Princeton, 2014); Hartmut Lehmann and James J Sheehan, eds., An Interrupted Past: GermanSpeaking Refugee Historians in the United States After 1933 (Cambridge, 2002). See Katrina Forrester, In the Shadow of Justice: Postwar Liberalism and the Remaking of Political Philosophy (Princeton, 2019). Walther Hofer, Geschichtsschreibung und Weltanschauung: Betrachtungen zum Werk Friedrich Meineckes (Munich, 1950), 322. See Annette Wittkau-Horgby, Historismus: Zur Geschichte des Begriffs und des Problems (Göttingen, 1992).

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history of ancient art for doing justice to the uniqueness of antiquity, and commended his ‘historicism’, which avoided fads for distorting the past with philosophical schemes.18 One such scheme at the time was Kant’s abstracted account of perpetual peace, delivered by a historical process operating behind the backs of human agents and beneath the surface of events. But for Schlegel, writing was ‘theoretical, but unhistorical’ if it could not make sense of past events and actions in all their specificity.19 Schlegel’s positive view of historicism was echoed in the nineteenth century, as the term was ascribed to Carl von Savigny’s study of historically bound legal forms and Giambattista Vico’s claim that history entails the study of past human intentions that alone give it meaning.20 But as industrialisation and class conflict prompted anxieties among German elites at the turn of the twentieth century, historicism became used to refer to the erosion of objective values by historical science. The ‘historicist’ label was applied to Wilhelm Dilthey, Georg Simmel, Heinrich Rickert, Wilhelm Windelband and Emil Lask, none of whom regarded their practice as such and all of whom rejected its relativistic associations.21 So began a ‘crisis of historicism’, a term popularised by the theologian Ernst Troeltsch amid the turmoil of the defeat and dissolution of the Kaiserreich: here it was used to refer to a purported form of value-free historical study, from Ranke and Droysen to Dilthey, which set past events and ideas so rigidly in context that they no longer possessed any meaning for the present.22 A more benign perspective on historicism was put forward by Meinecke in Die Entstehung des Historismus (1936) which eulogised it as a progressive, cosmopolitan response to the ahistorical and rationalist universalism of the Enlightenment.23 In ‘one of the greatest intellectual revolutions that has ever taken place in Western thought’, Herder and Goethe came to see that truth and value were the product of plural and diverse cultures, and that attempts to generalise absolute moral principles and natural laws to humanity were delusory. Human actions and ideas were best explained through ‘the substitution of a process of individualising observation for a generalising view of human forces in history’. Meinecke insisted that this neither ruled out universal moral principles nor fostered moral relativism. Allowed to develop its own methods, historicism yielded knowledge different from but complementary 18

19 20 21 22 23

Friedrich von Schlegel, ‘Zur Philologie I’, in Kritische Friedrich-Schlegel-Ausgabe vol. XVI (Paderborn, 1981), 35–41; Cited in Georg G Iggers, ‘Historicism: the history and meaning of the term’, Journal of the History of Ideas, 56:1 (1995), 130. Iggers, ‘Historicism’, 130. Ibid. Wittkau-Horgby, Historismus, 61–80. Ernst Troeltsch, ‘Die Krisis des Historismus’, Die neue Rundschau, 33.1 (1922), 572–90; See also Karl Heussi, Die Krisis des Historismus (Tübingen, 1932). Friedrich Meinecke, Die Entstehung des Historismus, (Munich, 1936); in English as Friedrich Meinecke, Historism: The Rise of a New Historical Outlook, trans. J. E. Anderson, with a ‘Foreword’ by Isaiah Berlin, (London, 1972).

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to that of the natural sciences.24 The practical realisation of these methodological precepts, he argued, made the German historical sciences the envy of the world. Meinecke’s study began by locating the origins of historicist thought in the eighteenth century and concluded with Goethe and a brief ‘supplement’ on Ranke. One effect of this has been to encourage later scholars to treat historicism as a cultural and methodological phenomenon rather than a political one bound to the rise of nationalism.25 Yet in earlier work Meinecke had treated at length the relationship between Historismus, national consciousness and political thought as it developed in Germany after the defeat of Napoleon. In the years after that victory German writers imagined a Kulturstaat in which the cultural ideals of Novalis, Schiller and Humboldt grew alongside (Prussian) power and together gave coherence and meaning to past, present and future.26 A pivotal figure in this scheme was Ranke, who it is worth looking at independently of Meinecke’s narrative. Ranke taught at the University of Berlin from 1825 to 1871, and rejected Hegel’s subordination of history to philosophy just as the latter’s influence was at its height.27 Taking his cues from Savigny and Friedrich Schleiermacher, he argued that because human phenomena sprang from the social conditions of a given epoch, only meticulous study of the individuality of historical events and forms could do justice to the past.28 At the same time, reconstructing the past wie es eigentlich gewesen revealed that events were not the outcome of individual decisions and their causal effects – an atomism Ranke associated with Enlightenment rationalism – but of holistic relationships between individuals and supra-individual entities that developed according to divine plan.29 What gave Ranke’s holistic scheme its dynamism was the animating force of political ideas, understood either as the dominant world-view of an epoch or the guiding ethos of a state or nation. Drawing on Savigny’s notion of the Volksgeist, he maintained that ideas should be studied in relation to the consciousness of a community, nation and state existing in time.30 ‘The succession of these ideas and their tendencies’, he remarked in 1847, ‘form the great structure of universal history. To apprehend them is the first task of the historian’.31 The historicity of ideas and plurality of human values necessitated rejecting the atemporal principles of social 24 25 26 27 28 29 30 31

Meinecke, Die Entstehung des Historismus, liv, lv, 1–10. Thus Frederick Beiser has identified a ‘classical historicist tradition’ that did not take politics as its primary concern. Frederick C. Beiser, The German Historicist Tradition (Oxford, 2011), vii. Friedrich Meinecke, Das Zeitalter der deutschen Erhebung (Bielefeld and Leipzig, 1906). George G Iggers, The German Conception of History: The National Tradition of Historical Thought from Herder to the Present (Middletown, CT, 1968), 63–89. Ernst Simon, Ranke und Hegel (Munich, 1928), 16–119. Leopold Ranke, ‘A Dialogue on Politics’ [1836], in The Theory and Practice of History, ed. Georg G Iggers and Konrad Von Moltke, (Indianapolis, 1973), 54–74. Leopold Ranke, ‘On Progress in History’ [1854], in Theory and Practice of History, 20–3. Leopold Ranke, Aus Werk und Nachlass, vol. IV (Munich, 1975), 191, note q.

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contracts grounded on abstract human nature, as espoused by Hobbes and in revolutionary form by Rousseau. The temporal alignment of the statesman’s situational judgement with the spirit of the age would instead hasten the fulfilment of the self-determining and centralised national state, coexisting in a harmony with others through a divinely supported balance of power, as the final goal of history.32 Ranke’s fragmentary reflections on agency, ideas and historical change mirrored developments in mid-century German political thinking, as notions of historical experience as a basis for identification and belonging were joined to discussions of leadership and the changing form of the state. One example of these innovations was the invention of the notion of Realpolitik by liberal journalist and politician August Ludwig von Rochau in the wake of the 1848 revolutions. In Grundsätze der Realpolitik, the first volume of which was published in 1853, Rochau re-thought politics as the art of the possible in light of the necessity of power for securing rule. Rochau argued that liberals seeking national unity faced conditions, from nascent class struggle to international conflict stoked by nationalism, that made traditional reason of state untenable.33 Conceptualising power as the convergence of inspiring ideas and social forces in particular moments, he proposed a contextualising judgement attuned to multiple temporalities, embedded in both the immediacy of events and the longer time-horizon of the national state.34 Around the same time, Swiss-German jurist Johann Caspar Bluntschli offered an influential developmentalist revision of reason of state, which accounted for the spread of representative republics and their relationship to an emerging cosmopolitan order of ‘civilized’ nation-states co-ordinated by international law.35 Bluntschli’s cosmopolitanism and Rochau’s multiple temporalities were sidestepped by Ranke’s successor at the University of Berlin, Heinrich von Treitschke. Editor of the influential Historische Zeitschrift from 1895, Treitschke was the most outspoken member of the Prussian School, whose members fused Ranke’s empirical and providential history with Hegel’s philosophical teleology of the state.36 Reflecting on Bismarck’s project of unification, Treitschke harnessed a neo-Machiavellian reason of state and glorification of the statesman to nationalist energies. Prussia’s drive for German national unity was not a fulfilment of moral principle but the realisation of the state’s essence as self-preservation through the 32 33

34 35 36

Ranke, ‘A Dialogue on Politics.’; Ranke, ‘Preface to Universal History’ [1880], in The Theory and Practice of History, 102–4. August Ludwig von Rochau, Grundsätze der Realpolitik: angewendet auf die staatlichen Zustände Deutschlands, vol. 1 (Stuttgart, 1859); Duncan Kelly, ‘August Ludwig von Rochau and Realpolitik as historical political theory’, Global Intellectual History, 3:3 (2017), 301–30; Natascha Doll, Recht, Politik und ‘Realpolitik’ bei August Ludwig von Rochau (1810–1873) (Frankfurt am Main, 2005). August Ludwig von Rochau, Grundsätze der Realpolitik: angewendet auf die staatlichen Zustände Deutschlands, vol. 2 (Heidelberg, 1869), iv. Johann Caspar Bluntschli, Allgemeines Staatsrecht geschichtlich begründet (Munich, 1852). Heinrich von Treitschke, ‘August Ludwig von Rochau’, Historische und politische Aufsätze, vol. 4 (Leipzig, 1897): 189–96.

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accumulation of power.37 Rochau’s Realpolitik for social movements was transformed into the preserve of individuals who mastered the historical moment using the resources of the national state. Historical consciousness, for Ranke formed by a range of supra-individual entities, was for Treitschke shaped by a powerful state personality. National history became a series of collective reflexes organically coordinated by sovereignty, and politics attained its highest stage of development in the German nation-state, which Treitschke argued must compete with the British for colonies, subjugating foreign races to realise its essence as power.38 Because social action was for Treitschke defined by power struggles in a constantly changing context, all human history was political history. Historiography explained how the ideas and institutions regulating present action came into being. The connection that Treitschke made between history and political life, if not the extremity of his anti-Semitic nationalism, was widely shared among the German professoriate. As practitioners of Gelehrtenpolitik (scholarly engagement in politics) the ‘mandarins’ saw it as their duty to foster national cultural unity.39 The outlook of Historismus – interpreting ideas in context, tracing the cultural transmission of beliefs and values, and relating the consciousness of past actors to social structures – was bound to a view of the national state as the basis for historicity, defined against ‘Western’ contractarianism and analytical social science. FRIEDRICH MEINECKE

The stakes of Meinecke’s engagement with historicism may be seen in the foreword to the 1911 edition of his Weltbürgertum und Nationalstaat (1907). There he declared that historical science ‘must again make the effort to set itself freely in motion and establish contact with the major forces of national and cultural life’. History should ‘immerse itself more boldly in philosophy and politics’. ‘Only by doing so’ could it ‘develop its most unique character as both universal and national’.40 Confronting the legacy of Bismarckian power politics in the rise of socialism and a bourgeoisie unable or unwilling to constrain the Kaiser, Meinecke hoped that a re-vivified historical imagination might reinject ethical purpose into Wilhelmine political life.41 As Treitschke’s successor to the editorship

37 38 39

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Heinrich von Treitschke, Politics, trans. B. Dugdale and T. de Bille, vol. 2 (London, 1916), 389, 395, 400. Treitschke, Politics, 252, 78–9, 116–18. The classic study is Fritz K. Ringer, The Decline of the German Mandarins: The German Academic Community, 1890–1933 (Cambridge, MA, 1969). Friedrich Meinecke, ‘Drei Generationen deutscher Gelehrtenpolitik’, Historische Zeitschrift, 125:1 (1922), 248–83. Friedrich Meinecke, Weltbürgertum und Nationalstaat (Munich, 1911), v–vi; Published in English as Cosmopolitanism and the National State, trans. Robert B. Kimber, (Princeton, 1970). See Duncan Kelly, ‘“The Goal of That Pure and Noble Yearning”’: Friedrich Meinecke’s visions of 1848’, in The 1848 Revolutions and European Political Thought, ed. Douglas Moggach and Gareth Stedman Jones, (Cambridge, 2018).

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of the Historische Zeitschrift, his defence of a historically informed and realistic Gelehrtenpolitik was influential. It also reflected the difficulties facing the historical school’s synthesis of politics and historiography as faith that the nation-state was a vehicle of providence dwindled. A professor at the University of Strasbourg, Meinecke was a leading practitioner of the genetic form of the history of ideas known as Ideengeschichte, with a reputation as an innovative historian acquired through what Isaiah Berlin described as his ‘prodigious learning and feeling for the complex web of ideas, movements, institutions, events and personalities of the principal actors’.42 Keen to modify Treitschke’s neo-Machiavellianism, he narrated the rise of a post-Enlightenment reason of state the calculative edge of which was softened by the principle of nationality and Fichtean ideals of autonomy. The key period was the post-Napoleonic era of Prussian reform and patriotic mobilisation, when reason of state was joined to the pursuit of public welfare (salus populi), and liberal goals of individuality and autonomy secured without revolutionary disorder.43 Echoing Mazzini’s liberal nationalism, Meinecke suggested that the shift from universalist cosmopolitanism to national sentiment gave ideals of universal brotherhood a safe harbour in the national state, where they anticipated Ranke’s divinely inspired harmony between self-determining nations. Meinecke’s remarks on the ‘universal and national’ character of history were seriously meant. Laying out ideals and possibilities against which the present could be judged, his cosmopolitan theory of the national state was only partially an endorsement of the Wilhelmine order. He was a cautious supporter of democratisation.44 But his ‘panentheistic’ vision of harmonious development led to optimism about the prospects for balancing peace with a national interest increasingly defined through nationalism and imperial enthusiasm.45 When war came, it provided for Meinecke, as for many other German scholars, a unity of purpose that seemed to resolve earlier conflicts and uncertainties. Ideas drawn from decades of historical writing on nationhood were mobilised in the propagandistic ‘Ideas of 1914’, which pitched a German conception of freedom achieved through national community against the supposedly atomistic ‘Ideas of 1789’.46 Meinecke’s commitment to a war in defence of Kultur did not imply unqualified support for expansionism. By 1915 he advocated peace without annexations. Nevertheless, he maintained that the

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Isaiah Berlin, ‘Foreword’, in Meinecke, Historism, xv. Meinecke, Cosmopolitanism, 233–6, 80. Stefan Meineke, ‘Parteien und Parlamentarismus in Urteil von Friedrich Meinecke’ in Friedrich Meinecke in seiner Zeit: Studien zu Leben und Werk, ed. Gisela Bock and Daniel Schönpflug, (Stuttgart, 2006), 51–94. For Meinecke’s ‘panentheism’ – the view that reality emanates from (rather than being identical to) God – see Reinbert A. Krol, ‘Friedrich Meinecke: panentheism and the crisis of Historicism’, Journal of the Philosophy of History, 4:2 (2010), 195–209. Klaus Böhme, ed., Aufrufe und Reden deutscher Professoren im Ersten Weltkrieg (Stuttgart, 1975).

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intolerant  ‘humanity’ of Anglo-American world order required continuing, hardheaded raison d’état if a rival vision of harmonious national individualities was to survive.47 Earlier hopes for universal brotherhood were premature, but a long-term horizon for political judgement remained essential. As revolution and spiralling domestic conflict strained the link between history and morality in public life, Meinecke reconsidered his theological–historical resolution of the tension between power and ethics. In a 1922 book definitive of the crisis of historicism, his friend Ernst Troeltsch argued that the painstaking accumulation of facts central to Rankean historiography encouraged a relativism that had eroded faith in providence, and was now of little relevance to Germans, who lay ‘in the midst of the storm of a world remaking itself’.48 For his part, Meinecke thought the post-war years marked a ‘revolutionary break with our political past’. If the moral exercise of power required statesmen to align with the direction of history, the loss of historical meaning once underwritten by the Wilhelmine state threw the relationship between power and morality into doubt.49 ‘Everything flows’, Meinecke wrote in a review of Troeltsch’s work – ‘show me a place where I can stand’.50 In a new work, Die Idee der Staatsräson in der neueren Geschichte, published in 1924 and dedicated to Troeltsch (who died the year before), Meinecke acknowledged that while the relativity of values was inescapable, the need remained to grapple with ‘the terrible antinomy between the ideals of rational morality and the actual processes and causal connections of history’.51 Meinecke argued for a reason of state capable of ‘bridging’ the gulf between power and ethics in order to escape the degeneration of raison d’état into a rationalisation of ‘bestial’ power politics. His starting point was Machiavelli’s realisation that ‘the state must do evil’. In recognising the necessity of force to secure the political community, the Florentine had laid the foundations for the national interest and with it a secular conception of history. Nineteenth-century German idealism had used his ‘rational’ insight to harmonise power with morality, culminating in Hegel’s reconciliation of the interest of the individual with the universality of the state, within a scheme of historically unfolding universal reason. Despite his differences with Hegel, Ranke saw the state similarly, as a moral individuality synthesising power and culture in accordance with a religious teleology. Both philosophies of history,

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Friedrich Meinecke, ‘Einleitung’, in Leopold Ranke, Die größen Mächte (Leipzig, 1916), cited in Kelly, ‘The goal of that pure and noble yearning’, 303. Ernst Troeltsch, Der Historismus und seine Probleme (Tübingen, 1922), 173. Friedrich Meinecke, Nach der Revolution: geschichtliche Betrachtungen über unsere Lage (Berlin, 1919), 70–1. Friedrich Meinecke, ‘Ernst Troeltsch und das Problem des Historismus’ (1923), in Zur Theorie und Philosophie der Geschichte, ed. Kessel Eberhard, (Berlin, 1959), 369. Friedrich Meinecke, Die Idee der Staatsräson in der neueren Geschichte (Berlin, 1924); citations hereafter to the English translation: Friedrich Meinecke, Machiavellism: The Doctrine of Raison d’État and Its Place in Modern History, trans. Douglas Scott, (New Haven, 1962), 432.

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Meinecke argued, had sanctified power with morality and reason, deifying power politics and stripping international politics of ethical direction.52 The fusion of Ranke and Hegel, Meinecke noted, had culminated in Treitschke’s mobilisation of time to justify all ‘excesses of power-policy’ – an approach no longer tenable in the face of harsh geopolitical realities. Less ambivalent towards the Weimar Republic than his famous term Vernunftrepublikaner (republican by reason rather than conviction) suggested, he argued that power must be ‘stripped of its veil’ to reveal its demonic nature and empower a moderated Staatsräson that would turn power politics towards the pursuit of public welfare.53 This required not idealistic synthesis but the adaptation of political actors to historical circumstance, guided by conscience supplied by a ‘common primal divine source’.54 Carl Schmitt would criticise this resort to transcendent ethics. But Meinecke coupled his panentheism with a ‘self-examination of historicism’ (anticipating his 1936 defence of the idiom), which led him to laud Machiavelli’s decidedly un-Romantic historical sense. Instead of furnishing the starting point for a neo-Hegelian synthesis (identifiable in the present with Croce), Machiavelli provided a salutary appreciation of the contingency of politics and the limits of reason. The task of history, Meinecke suggested, was no longer to justify the past and legitimate the present but to cultivate the responsibility of political actors in the face of persistent conflict that reflected not Hegel’s ‘cunning of reason’ but reason’s limitations.55 Time was for Meinecke no longer a vehicle for the reconciliation of power with ethics, but an ambivalent medium in which actors made particularising judgements that opened up different futures, depending on their balancing of power and ethics. One future he extrapolated from Germany’s weakened condition was an end to the fusion of history and reason of state. The ‘extinguishing of … power-conflicts’ would mean that ‘the historical role of Europe … was played out and that Western culture is in fact doomed to destruction’. Politics as a sphere of autonomy would disappear as nation-states ‘sink to the level of burnt-out volcanoes or (as it has been quite well expressed by Spengler) of Fellaheen states’.56 A different future was a tyrannical ‘mass Machiavellianism’ pursuing power alone, with effects he would diagnose in his final anguished post-mortem on German politics, Die deutsche Katastrophe (1946) – and which leading lights of the ‘Conservative Revolution’ such as Schmitt would justify as timely.57

52 53 54 55 56 57

Meinecke, Machiavellism, 432, 348, 368, 12, 25–48, 343–69, 377–91. Ibid., 369, 428. Meinecke, ‘Ernst Troeltsch’, 376. Meinecke, Machiavellism, 425, 427. Ibid., 432. Though in that work Meinecke also looked to an alternative future for Germany in a Central and Western European federation. See Friedrich Meinecke, Die Deutsche Katastrophe (Wiesbaden, 1946), 110; Rolf Peter Sieferle, Die Konservative Revolution: Fünf biographische Skizzen (Frankfurt am Main, 1995).

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CARL SCHMITT

In a 1926 review of Die Idee der Staatsräson, Schmitt criticised Meinecke for relying on a stark binary between power and ethics, and appearing to favour the latter.58 In projecting this dualism onto the past Meinecke could not provide a clear definition of reason of state. Instead he set the notion of a perpetual struggle for power against moral prescriptions derived from Romantic ideals. Schmitt couched his alternative in the language of Weberian ideal types. ‘The representation of intellectual history’, he declared, ‘can only be structured through the use of concepts’. Concepts, however, must be traced back to particular political situations, which would reveal the importance of self-authorising decision in defining the correct course of action in a given situation.59 Meinecke’s decontextualising vacillation exemplified for Schmitt the irresponsibility of German liberal nationalists, who failed to see that politics was neither constrained by moral norms nor reducible to the pursuit of public welfare, and so propped up a parliamentary system incapable of political decision.60 Schmitt was coming to the notorious view he articulated in Der Begriff des Politischen, that politics is founded on antagonism between enemies, an invariant that defies understanding in ethical terms but nonetheless has to guide political judgement.61 Schmitt’s attacks on Staatsrechtlehre radicalised the presentism of the Prussian School. ‘Along with many famous historians of the last generation’, he wrote, he agreed that ‘all historical knowledge is knowledge of the present’.62 History was constitutive of the political because it gave meaning to antagonisms, and historiography was a field of struggle because ‘all political concepts, images and terms have a polemical meaning. They are focussed on a specific antagonism and are bound to a concrete situation’.63 Schmitt’s histories were polemical interventions into the concrete situation of the Weimar Republic. Against Meinecke, he maintained that the legal–rational modern state was radically discontinuous with its absolutist predecessor in a manner that made reason of state, whether good or bad, impossible.64 Liberal constitutionalism fettered the state’s capacity for sovereign decision-making,

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Carl Schmitt, ‘Zu Friedrich Meineckes Idee der Staatsräson’, Archiv für Sozialwissenschaft und Sozialpolitik, 56 (1926): 226–34; re-printed in Carl Schmitt, Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles, 1923–1939 (Hamburg, 1940), 45–53. Carl Schmitt, ‘Zu Friedrich Meineckes Idee der Staatsräson’, 45, 50. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [1922], trans. George Schwab, (Cambridge, MA, 1985), 63; Carl Schmitt, The Crisis of Parliamentary Democracy [1923], trans. Ellen Kennedy, (Cambridge, MA, 1988). Carl Schmitt, The Concept of the Political, trans. George Schwab and J. Harvey Lomax, (Chicago, 1996), 28. Carl Schmitt, ‘The age of neutralizations and depoliticizations’ [1929], in Concept of the Political, 80. Schmitt, Concept of the Political, 30. Carl Schmitt, ‘Absolutismus’, in Staat, Großraum, Nomos: Arbeiten aus den Jahren 1916–1969 (Berlin, 1995), 95–101.

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while the integrative pressures of democracy led to the paralysis of the state structure by competing interest groups. Increasingly absorbed by society, the state could no longer identify let alone act autonomously in response to its enemies. In this threatening environment, Schmitt argued, liberal images of history had pernicious depoliticising effects. Their progressive and eschatological aspect obscured the realities of struggle that made an end to history impossible. In 1923 Schmitt had criticised the Lukácsian hybrid of Hegelian dialectic and Marxist theory in service of a ‘rationalist dictatorship’ over an indefinite future.65 A similar managerial view of politics dominated the liberal imagining of a ‘development of humanity from the militaristic to industrial type, from war to peace, from politics to economics, and the institution to the cooperative, and from absolutism to democracy’.66 In the hands of the Western powers such visions prompted hypocritical moralising that turned enemies into outcasts of humanity deserving of annihilation – the world-view of a civilising imperialism invested in legal utopias such as the League of Nations, and turned on Germany at the Treaty of Versailles.67 At home liberalism weakened the state and undermined national unity. Schmitt re-cast the history of German legal and political thought in order to frame liberalism as an alien ideology. Severing Bluntschli’s principle of nationality from public welfare and the rule of law, he turned it into an outgrowth of absolutist reason of state. Joined to a re-defined principle of popular sovereignty, nationality so understood threw parliamentarism into crisis. Schmitt had supplied an intellectual origin for this principle in Die Diktatur, through a Hobbesian reading of Abbé Sieyès’ theory of constituent power as a formless sovereign will that revolutionaries inscribed into their revival of the Roman practice of constitutionally limited dictatorship.68 The result was a form of sovereign dictatorship exercised in the name of the people. This idea, and its mutation into a tool of Bonapartist counter-revolution, formed the background to Schmitt’s instrumental history of the Second Reich, published the year after the Nazi seizure of power, in which he described the corrosion of the Prussian ‘soldier-state’ from within by liberal constitutionalism.69 In his 1935 pamphlet Staat, Bewegung, Volk he sketched a state theory capable of realising the unifying and racially homogenising potential of this submerged political form, guided by the authoritarian Führerprinzip and dynamism of National Socialism.70 Political exigency allowed for a rupture that instated a new continuity with the political past.

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Schmitt, Crisis of Parliamentary Democracy, 52. Carl Schmitt, Staatsgefüge und Zusammenbruch des Zweiten Reiches: der Sieg des Bürgers über den Soldaten (Hamburg, 1934), 16. Carl Schmitt, Die Kernfrage des Völkerbundes (Berlin, 1926), 6–7, 13. Carl Schmitt, Die Diktatur (Munich, 1921). Schmitt, Staatsgefüge und Zusammenbruch; see especially Joshua Smeltzer, ‘“Germany’s salvation”: Carl Schmitt’s teleological history of the Second Reich’, History of European Ideas, 44:5 (2018), 590–604. Carl Schmitt, Staat, Bewegung, Volk: die Dreigliederung der politischen Einheit (Hamburg, 1935).

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As his contemporaries recognised, Schmitt’s approach to history was opportunistic.71 But it also expressed a certain temporal logic, visible in a presentation in 1929, in which he offered a stadial outline of the successive ‘centres’ of European intellectual life, from the theological and metaphysical in the sixteenth and seventeenth centuries to the humanitarian and rational–technical in the eighteenth and nineteenth. This was not, he stressed, a philosophy of history. It was: not meant as a theory of cultural and intellectual ‘dominance’, not a historico– philosophical law in the sense of a law of three stages or similar constructions. I speak not of human culture as a whole, not of the rhythm of world history, and am able to speak neither about the Chinese nor the East Indians or the Egyptians … the changing central domains are conceived neither as a continuous line of ‘progress’ upwards nor the opposite.

Schmitt claimed his ‘simple, secular stages’ possessed no underlying or developmental logic but were merely the most general observations possible of the contingent outcomes of power struggles. They did not determine the trajectory of all areas of life, nor did they directly condition the extra-European world. There was ‘a pluralist co-ordination of different stages which are already traversed; people of the same time and the same country, yes even of the same family live next to each other in different stages’. History, in other words, does not consist of a linear sequence of equal time units, but of multiple temporalities that interact and advance at differing speeds. This multiplicity made the consequences of action uncertain but created possibilities for actors capable of apprising the relations between times and acting decisively. The Bolsheviks, for example, sought to establish ‘a state which knows its own time and cultural situation. It must claim to understand historical development as a whole, which is the basis of its right to rule’.72 In place of a divinely assured history ascertained by the statesman, Schmitt saw a fluctuating temporal structure in which changes in any domain might produce opportunities and new friend–enemy distinctions. Schmitt’s view of the plurality of times was integral to his theory of political decision, in which the right of the sovereign to decide on a state of exception stabilised legal and political order.73 Amid the collapse of ontological and theological 71

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As Joshua Smeltzer notes, in the last Historische Zeitschrift edited by Meinecke in 1935, one scholar criticised Schmitt for employing contemporary concepts to fabricate a ‘false image’ of the past: Fritz Hartung, ‘Staatsgefüge und Zusammenbruch des zweiten Reiches’, Historische Zeitschrift, 151:3 (1935), 528–44. Schmitt, ‘The age of neutralizations and depoliticizations’, 82, 83, 88. Schmitt, Concept of the Political, 10. There are connections between Schmitt’s concept of time and that articulated by Walter Benjamin in his famous essay on the concept of history. Walter Benjamin, ‘Über den Begriff der Geschichte’, in Walter Benjamin, Gesammelte Schriften, ed. Rolf Tiedemann and Hermann Schweppenhäuser, (Frankfurt am Main, 1980), 691–704; see Horst Bredekamp, ‘From Walter Benjamin to Carl Schmitt, via Thomas Hobbes’, Critical Inquiry, 25:2 (1999), 247–66.

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certainties wrought by secularisation, political institutions could no longer assume that mere passage of time granted them legitimacy. Stability was fleeting and hardwon. Effective judgement and decision must attend to context-bound particulars, recognising the fragmentary quality of time and the confluence of temporalities constitutive of an exceptional situation. As National Socialism turned principles of national autonomy aggressively outwards, Schmitt moved from decisionism to justifying the historical legitimacy of a new German imperium through the concept of Großraum (large space). He re-imagined an international law unmoored from moral ideals and orientated towards ‘concrete order’ rooted in concepts of Volk and Staat. These were the ideological origins of his 1951 treatise, Der Nomos der Erde, in which he cited Savigny’s historicist jurisprudence as inspiration for a study of the ‘historical development of spatial consciousness’ underlying European international public law. Grounded in common religion and concrete space, this Eurocentric nomos emerged in the sixteenth century through colonial appropriations of non-European lands, supporting a law of nations and a balance of power that limited interstate violence behind certain ‘global lines’. The destruction of this system by moralising Anglo-American sea-empires left an ‘empty space’ void of order, in which international law became a destabilising instrument of ‘global civil war’. Neither ‘modern global and historical consciousness’ nor cosmopolitan legal forms could recreate the stability of an earlier combination of myth, historical sense and spatial ordering.74 Schmitt’s argument was simultaneously an apologetic for Nazi conquest and an engagement with post-war American anxieties about global instability. As scholars have shown, his critique of international law and moralism in interstate relations also had a deep influence on post-war ‘realist’ International Relations theory in the United States, through a ‘hidden dialogue’ with Hans Morgenthau.75 In West Germany, Schmitt’s claims about the fragility of liberal democracy and a global civil war underpinned by philosophies of history were stripped of their antidemocratic rhetoric and turned into methodological categories for less polemical historical inquiry.76 Legal theorists such as Ernst Forsthoff, Ernst Rudolf Huber and Ernst-Wolfgang Böckenförde and historians such as Hanno Kesting– and Koselleck– took his claims to concern what one author recalled as ‘the immanent structure of historical–societal reality’.77 The ambivalence of these appropriations was shaped by the seeming end of European power politics, which had shaped the historicity of German political thought for more than a century. 74 75

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Carl Schmitt, The Nomos of the Earth, trans. G. L. Ulmen, (New York, 2003), 237, 296, 252, 286. Hans J. Morgenthau, Scientific Man vs. Power Politics (Chicago, 1946), 67; William E. Scheuerman, ‘Carl Schmitt and Hans Morgenthau: Realism and beyond’, in Realism Reconsidered: The Legacy of Hans J. Morgenthau in International Relations, ed. Michael C. Williams, (Oxford, 2007). Timo Pankakoski, ‘The language of post-war intellectual Schmittianism’, The European Legacy, 23:6 (2018), 607–27. Nicolaus Sombart, Rendezvous mit dem Weltgeist: Heidelberger Reminiszenzen 1945–1951 (Frankfurt am Main, 2000), 217.

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Although it seemed for a moment in 1945 that European states would reclaim untrammelled sovereignty, superpower conflict quickly saw their restraint through hegemony, agreement or threat.78 If sovereignty had been for generations of German scholars the prerequisite for a political community capable of acting in history, its loss in divided and occupied Germany raised a question mark over the measure of time adequate for a horizon that now extended beyond the nation-state. Writing in 1946 to Meinecke in terms that echoed the earlier ‘crisis’, historian Gerhard Ritter spoke of the ‘infinitely important’ need to ‘assure the continuity of our historical thought and thus to prevent a chaos of political and moral desperation, which could result from the catastrophic and abrupt end of our traditions’.79 One way of salvaging continuity in the wake of Nazi nihilism was to turn away from Machiavellian realism towards (relatively) timeless Christian values capable of grounding political order. Writing in the Historische Zeitschrift in 1949, Ritter pointed to Germany’s historic contribution to the idea of human rights as a way of re-envisioning her relationship to European history through an international language that could be mobilised against atheistic communism.80 Amid a search for moral certainties and suspicion of relativism, the potential of Meinecke’s historicist Ideengeschichte seemed exhausted. Yet earlier questions about the relationship between historical meaning, value and politics continued to ramify – notably in the writings of Koselleck and Arendt, who responded to total war and threat of nuclear destruction with anthropologies of political time. REINHART KOSELLECK

Koselleck’s first book, Kritik und Krise, based on his doctoral dissertation and published in 1959, showed close familiarity with the procedures of Ideengeschichte and a keen interest in historicising concepts central to modern political thought.81 The work was also an attempt to overcome Meineckean historicism with the aid of Schmitt, who became Koselleck’s dissertation mentor in the late 1940s. Koselleck’s animating claim was that political philosophers since Hobbes and Locke had justified freedom of moral belief for individuals, and so laid the foundations for the 78

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Wilfried Loth, ‘Sources of European integration: the meaning of failed interwar politics and the role of World War II’, in Crises in European Integration: Challenge and Response, 1945–2005, ed. Ludger Kühnhardt, (Oxford, 2009), 19–32. Quoted in Klaus Schwabe, ‘Change and continuity in German historiography from 1933 into the early 1950s: Gerhard Ritter (1888–1967)’ in Hartmut Lehmann and James Van Horn Melton, eds., Paths of Continuity: Central European Historiography from 1933 to the 1950s (Cambridge, 1994), 104. Gerhard Ritter, ‘Ursprung und Wesen der Menschenrechte’, Historische Zeitschrift, 169:1 (1949), 233–63; see Samuel Moyn, ‘The first historian of Human Rights’, The American Historical Review, 116:1 (2011), 58–79. Reinhart Koselleck, Kritik und Krise: eine Studie zur Pathogenese der bürgerlichen Welt (Freiburg, 1959); the (anonymous) English translation was published as Reinhart Koselleck, Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society (Cambridge, MA, 1988).

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Enlightenment confrontation between moralised (and politically irresponsible) criticism and the state. The culmination was the moralised absolutism of the French Revolution, which turned political opponents into outcasts of humanity.82 Here Koselleck found the roots of the anti-politics of liberal and Marxist eschatologies that fuelled ‘global civil war’ (Schmitt’s term). To lay these bare he historicised concepts of critique, crisis and revolution as well as the dualisms of the philosophes: nature vs civilization, progress vs decadence, reason vs revelation. These dualities, he claimed, increased the gap between lived experience and utopian expectation, giving rise to philosophies of history that discounted experience and effaced political reality. Later Koselleck would take the accelerated temporality of political concepts in modernity as the starting point for his conceptual history and theory of historical times.83 The polemical conceptual structure of Kritik und Krise was directed at Meinecke’s form of political historiography. A letter Koselleck sent Schmitt in January 1953 and a footnote in his (unpublished) dissertation show him developing themes from his mentor’s unsparing review of Der Idee der Staatsräson. Koselleck argued that Meinecke failed to take the relativity of values to its conclusion by neglecting to historicise his own standpoint. He projected his favoured values of power and ethics onto actors with very different motives and goals, leaving him unable to explain conceptual usage or change. The underlying dynamic of Meinecke’s writing was not historicity but a ‘linear temporal construct … the evidence for which is mathematical and philosophical–historical’. It was this moralising and universalising temporality, borne of modern historical philosophies and the modern idea of the state, that Koselleck proposed to analyse. Doing so required historicising concepts as Schmitt proposed, tracing them ‘back to their specific situation to clarify their meaning’ but also showing how shifts in the time of concepts were politically consequential.84 In the case of Enlightenment political languages, this method would reveal how morality was replaced by history and its hoped-for acceleration through violence. Wary of controversy, Koselleck removed his criticism of Meinecke and reference to Schmitt’s review from the published version of Kritik und Krise, instead blandly describing his method as consisting of ‘intellectual history analyses and analyses of sociological conditions’.85 Nevertheless the influence of his mentor remained clear, as Jürgen Habermas and émigré political scientist Carl Friedrich pointed out

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Koselleck, Kritik und Krise, 18–32, 41–8, n.3, 76. There is now a substantial literature on the trajectory of Koselleck’s thought. See especially Niklas Olsen, History in the Plural: An Introduction to the Work of Reinhart Koselleck (Oxford, 2012); Jan Eike Dunkhase, Absurde Geschichte: Reinhart Kosellecks historischer Existentialismus (Marbach am Neckar, 2015). Reinhart Koselleck to Carl Schmitt, January 1953, in Reinhart Koselleck and Carl Schmitt, Der Briefwechsel 1953–1983 und weitere Materialien, ed. Jan Eike Dunkhase, (Berlin, 2019), 9–10. For a detailed discussion of letter and footnote, see Olsen, History in the Plural, 62–8. Koselleck, Kritik und Krise, 4.

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in critical reviews – the latter an early sign of Koselleck’s reception in the United States.86 But Koselleck’s analysis was not reducible to Schmitt’s polemical method or his politics. Besides drawing attention in Schmittian fashion to the process through which what counts as ‘political’ is defined or subordinated to moral imperatives, Koselleck’s early engagement with the history of ideas had implications for political thought. In particular, he showed how perceptions of the relationship between present and past shape the outlook of political actors at a level that precedes formal understanding. Conceptions of the past and of historical time were formative for making political judgements about the future.87 Koselleck’s second monograph, Preußen zwischen Reform und Revolution (1967), conceptualised Prussian history between 1791 and 1848 in terms of the two eponymous concepts, which re-orientated the political imaginary of bureaucratic and constitutional actors towards the future. In this and several methodological essays he broke with Schmitt’s polemical conceptualisation of history to develop his own arguments about the pluralised temporalities confronted by political actors. In this he drew on Heidegger’s ontological approach to history and temporalisation of concepts – both products of the latter’s own engagement with historicism.88 Koselleck accordingly called for study of the anthropological bases that enable experience of history at the level of events (Geschichte) prior to historical knowledge and narrative (Historie).89 Within the ambit of the famed Geschichtliche Grundbegriffe project on the history of concepts in the 1960s, he analysed historical categories such as ‘politicisation’ and ‘democratisation’ according to an underlying thesis of the temporalisation of political concepts in the so-called Sattelzeit (the period from 1750 and 1850).90 The ideological overtones of Kritik und Krise were mostly absent in Koselleck’s later work. But he remained committed to the idea that the historian has a responsibility to reflect on the temporal and existential structures of political life to encourage 86

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Jürgen Habermas, ‘Verrufener Fortschritt – verkanntes Jahrhundert: zur Kritik an der Geschichtsphilosophie’, Merkur, 14:147 (1960), 468–77; Carl J. Friedrich, ‘Koselleck, Kritik und Krise’, American Political Science Review, 54:3 (1960), 746–7. Reinhart Koselleck, ‘Im Vorfeld einer neuen Historik’, Neue Politische Literatur 6 (1961): 577–88. Martin Heidegger, Sein und Zeit (Tübingen, 1967), §72–6, 372–97; see also Karl Löwith, ‘M. Heidegger and F. Rosenzweig or temporality and eternity’, Philosophy and Phenomenological Research, 3:1 (1942), 53–77; Jacob Taubes, ‘Geschichtsphilosophie und Historik: Bemerkungen zu Kosellecks Programm einer neuen Historik’, in Apokalypse und Politik, ed. Martin Treml and Herbert Kopp-Oberstebrink, (Leiden, 2017). Reinhart Koselleck, Preußen zwischen Reform und Revolution. Allgemeines Landrecht, Verwaltung und soziale Bewegung von 1791 bis 1848 (Stuttgart, 1967); Reinhart Koselleck, ‘Der neuzeitliche Revolutionsbegriff als geschichtliche Kategorie’, Studium Generale, 22 (1969), 825–38; Reinhart Koselleck, ‘Geschichte, Geschichten und formale Zeitstrukturen’, in Poetik und Hermeneutik, vol. 5. Geschichte – Ereignis und Erzählung, ed. Reinhart Koselleck and Wolf-Dieter Stempel, (Munich, 1973), 211–22. Reinhart Koselleck, ‘Einleitung’, in Geschichtliche Grundbegriffe: historisches Lexikon zur politisch– sozialen Sprache in Deutschland, ed. Otto Brunner et al., (Stuttgart, 1972), xvii.

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responsible decision-making by political actors. These commitments, at once methodological and political, disappeared from the practice of many later conceptual historians as they moved towards reception history. But we can still see the parallel reception and development of themes borne of the crisis of historicism, particularly around questions of political contingency and the pluralisation of time, in the work of Hannah Arendt. HANNAH ARENDT

In a late eulogy for François Furet, Koselleck remarked that there was ‘no history without political theory’: Political theory was ‘the presupposition for and the result of historical knowledge’. In the same essay he recalled the impression made on him by Hannah Arendt, whom he had invited to lecture in Heidelberg in 1956, a year after the German publication of her 1951 book The Origins of Totalitarianism.91 Like Koselleck, Arendt had come to explain the breakdown of European politics and the rise of Nazism and Stalinism through the rise of ideologies purporting to reveal historical laws. Her alternative to ideological politics has often been understood as a mode of ‘agonal’ action unmoored from the past.92 Yet she saw historical sense as an enabling condition for political life and regarded historical understanding as ‘the sine qua non for political science’. She also combined historicist emphasis on the individuality of historical phenomena with attention to the temporal conditions for political judgement and institutional durability.93 Arendt rejected the harmony that historians of the Prussian School posited between freedom and the nation-state. This was most apparent in Origins, where she argued that experiences of racial domination and social atomisation paved the way for Stalinist (and much more so) Nazi rule by terror.94 Anti-Semitism, racism and imperialism were ‘subterranean’ elements that evaded high-flown Ideengeschichte. Their transnational sources were obscured by the methodological nationalism that underlay proto-Sonderweg theses of a unique German road

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‘Heidegger and Lukács, Kojève and Jaspers … still operated in the run-up to the catastrophe. This was not the case with Arendt’. Reinhart Koselleck, ‘Laudatio auf François Furet’, Sinn und Form, 49.2 (1998), 297–8. Agonal in this sense refers to a form of bounded, discursive conflict within politics. The classic agonal reading of Arendt is Bonnie Honig, Political Theory and the Displacement of Politics (New York, 1993). Hannah Arendt, Lecture notes for ‘History of Political Theory’ course, Spring 1955, Hannah Arendt Papers, Library of Congress, Washington (hereafter HAPLC). Arendt’s treatment of history and historicity has not received nearly as much attention as other aspects of her thought, but see Liisi Keedus, The Crisis of German Historicism: The Early Political Thought of Hannah Arendt and Leo Strauss (Cambridge, 2015); Annette Vowinckel, Geschichtsbegriff und historisches Denken bei Hannah Arendt (Weimar, 2001). Hannah Arendt, The Origins of Totalitarianism (New York, 1951), xv.

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to Nazism.95 An internationalist approach revealed the historical significance of a pan-European conflict within the nation-state, between the state as a guarantor of equal rights and the nation as an exclusive source of belonging. A global approach showed that this tension had been radicalised by imperial expansion, driven by capitalism, which abetted the rise of racist movements wielding visions of continental empire against the territorially-bounded state imaginary. Bureaucratic violence boomeranged from colonies to metropoles and supplied the precedents for Nazi genocide.96 While anti-colonial contemporaries such as Aimé Césaire and W. E. B. Du Bois employed the boomerang trope to indict the hypocrisy of European civilisation writ large, Arendt did not. She exonerated European humanism (and German Bildung) from responsibility by arguing that its ‘tradition’ was usurped by, rather than complicit with, the ‘subterranean stream of Western history’. She also reproduced the racism of the imperial civilising mission, as was evident from her naturalising of Africans, whom she suggested lacked the capacity for culture and therefore politics.97 Her concern was not the colonised but rather how colonialism had re-configured European politics. In putting supranational and domestic considerations on equal footing she challenged the precepts of German state theory. She began with an interpretation of Hobbes (later praised by Koselleck) as the proto-liberal philosopher of civic disengagement and capital accumulation, and of self-aggrandising power states incompatible with international peace. From there she cited Schmitt’s ‘ingenious theories about the end of democracy and legal government’ but rather than find the sources of state collapse in the loss of Hobbesian sovereignty, as Schmitt tended to, she located them in the principle of sovereignty itself. Unfettered sovereignty was a disintegrative agent that prevented international remedies for economic collapse and mass statelessness, thereby facilitating the movements that brought about the lawless ‘totalitarian so-called state’.98 95

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Hannah Arendt, ‘Approaches to the “German Problem”’ [Jan. 1945] in Essays in Understanding, 1930–1954: Formation, Exile, and Totalitarianism, ed. Jerome Kohn, (New York, 2005); Hannah Arendt, ‘German Émigrés’, HAPLC; she was particularly critical of Wilhelm Röpke, Die deutsche Frage (Erlenbach-Zürich, 1945); but Meinecke’s Die deutsche Katastrophe was another obvious foil. Arendt, ‘Approaches to the “German Problem”’, Essays in Understanding, 222–66; William Selinger, ‘The politics of Arendtian historiography: European federation and The Origins of Totalitarianism’, Modern Intellectual History, 13:2 (2016), 417–6; Karuna Mantena, ‘Genealogies of catastrophe: Arendt on the logic and legacy of imperialism’, in Politics in Dark Times: Encounters with Hannah Arendt, ed. Seyla Benhabib, (Cambridge, 2010). There is a large literature on the extent to which Arendt’s analysis in Origins bore the stamp of her own racial prejudices. See, for example, Dirk Moses, ‘Das Römische Gespräch in a new key: Hannah Arendt, genocide, and the defence of republican civilization’, The Journal of Modern History, 85:4 (2013), 867–913; Kathryn T. Gines, ‘Race thinking and racism in Hannah Arendt’s The Origins of Totalitarianism’, in Hannah Arendt and the Uses of History: Imperialism, Nation, Race, and Genocide, ed. Richard H. King and Dan Stone, (Oxford, 2007). Arendt, Origins, 139–47, 155–7, for her remark on Schmitt, see n. 65, p. 339 and for other references to him n. 24, p. 168, n. 76, p. 251, n. 110, p. 266.

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History in Arendt’s narrative was an unstable medium, revelatory of the unpredictable consequences of political action. Seemingly peripheral historical changes had coalesced into the ‘event’ of totalitarian rule, and might do so again – perhaps under the guise of an anti-communist ideology that sanctioned bloody wars abroad and curtailed liberties at home.99 Against this possibility, she called for a ‘consciously planned beginning of history’ that would establish federations that limited sovereignty by agreement while avoiding despotic schemes of world government. The hegemony of the nation-state over historical time had obscured the ‘emergence of mankind as one political entity’ in a violent process that gave the lie to optimistic teleologies of international law and human rights, which had failed to prevent millions from being ‘expelled from humanity and human history’. Only the ‘right to have rights’ – to belong to a political community – could protect the individual against the loss of all rights. The practical fulfilment of such a speculative cosmopolitan right was unlikely in the divided post-war world. But by representing diverse perspectives on that world, historiography and political theory could contribute to an ethic of ‘universal solidarity’ favourable to the realisation of such a right.100 Arendt made the historicity of political judgement axiomatic for her political theory, taking as her foil ways of seeing past politics in terms of anonymous processes and causally determined necessities – including the ‘necessity’ of Machiavellian reason of state. She criticised the tendency of writers on the French left to project historical necessity into past and future with the aid of Hegel and Marx.101 In ‘Ideology and Terror’ (1953) she depicted an extreme version of this logic, in which spurious laws of class or biology justified terror to make the individual ‘conform to the movement of history or nature’.102 The same argument, in modified form, underlay her later criticism of the application of Hegelian Marxism by Fanon and (more sharply) Sartre to decolonisation struggles.103 As well as criticising the Hegelian–Marxist subordination of principle to history, Arendt rejected the anti-historicist subordination of history to morality central to much contemporary Christian thought – and by extension, post-war Christian Democracy. The relativisation of values diagnosed by Meinecke meant that Christian morality could no longer ground civic life. Given the human desire to derive meaning from the past, political science might respond to this challenge by 99

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‘What is unprecedented in totalitarianism is not primarily its ideological content, but the event of totalitarian domination itself’. Arendt, ‘A reply to Eric Voegelin’, The Review of Politics, 15:1 (1953), 80; Hannah Arendt, ‘The Eggs Speak Up’ [c. 1950], in Essays in Understanding 1930–1954. Arendt, Origins, 436, 439. Her targets in particular were Jean-Paul Sartre and Maurice Merleau-Ponty. See Hannah Arendt, ‘Concern with politics in recent European philosophical thought’ (1954) in Essays in Understanding, 1930–1954; Waseem Yaqoob, ‘Reconciliation and violence: Hannah Arendt on historical understanding’, Modern Intellectual History, 11:2 (2014), 385–416. Hannah Arendt, ‘Ideology and terror: a novel form of government’, The Review of Politics, 15:3 (1953), 303–27; the essay was appended to later editions of Origins. Hannah Arendt, On Violence (New York, 1970).

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articulating an anthropological conception of historicity operating at the level of the experiencing subject rather than the ratiocinating philosopher. One possible starting point she suggested was Heidegger’s notion of the time-bound self bearing a hermeneutic relationship to the past – though with the caveat that Heidegger’s ontology neglected the freedom of ‘man as an acting being’, and with it the fundament of politics.104 In 1955 – the year that Pius XII denounced historicism at the Congress of the Historical Sciences – Arendt identified another model of historicity in Machiavelli, the most infamous critic of Christian moralising in politics. Following Meinecke, she rejected characterisations of the Florentine not only as the ‘teacher of evil’ depicted by Leo Strauss and Jacques Maritain but also as the first realist ‘scientist’ of power politics.105 Mirroring the work of Meinecke’s student, the émigré historian Felix Gilbert, she situated Machiavelli in Renaissance traditions of humanist historiography, turning to his treatise on republican liberty, The Discourses, as an updating of the Ciceronian view of history as a storehouse of exemplars.106 Historiography for Machiavelli was a vehicle for conveying virtù, which when engaged with the opportunities delivered by fortuna gave citizens the opportunity to uphold the freedom of their city while attaining personal glory. Struck by his presentation of republics as polities existing precariously in secular time, enduring only through civic commitment inspired by past deeds, Arendt contrasted the meaningful time of lasting institutions with the cyclical time of consumption, which drew individuals away from public life into their private worlds.107 But Arendt also magnified Meinecke’s ambivalence towards Machiavellianism as a guide for politics. A new global structure of violence shadowed by nuclear weapons rendered the mobilisation of patriotic fervour in defence of one’s polity dangerous. Machiavelli’s agon and justification of all means necessary for the ends of the polity was unsuited to an epoch in which conflict anywhere might lead to a general conflagration.108 Arendt’s alternative to violence as an instrument of national interest or revolutionary strategy was a demilitarised republicanism based on speech and action and guided by mutable principles such as justice, solidarity and fear, rather than necessity or immutable interest109. Her hidden interlocutor was Schmitt, who had variously argued that stable legal order must rest on myths of sovereignty, 104 105

106 107 108 109

Hannah Arendt, ‘Concern with politics’, 433–5. Hannah Arendt, ‘Authority in the twentieth century’, 72 (1955), n. 1, 16, HAPLC; Hannah Arendt, ‘Lecture on Machiavelli’ (1955), HAPLC; Hannah Arendt, ‘Notes on Machiavelli, Niccoló’, (1955), HAPLC. See, for example, Felix Gilbert, ‘The Humanist concept of the prince and the Prince of Machiavelli’, The Journal of Modern History, 11:4 (1939), 449–83. Hannah Arendt, The Human Condition (Chicago, 1958), 124–35; Hannah Arendt, On Revolution (Harmondsworth, 1963), 138. Hannah Arendt, ‘Europe and the atom bomb’, in Essays in Understanding, 1930–1954. See especially her unpublished and incomplete treatise from the late 1950s. Hannah Arendt, Was ist Politik? Fragmente aus dem Nachlass (Munich, 1993), 80–122.

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spatial-territorial boundaries and an appreciation of the constancy of enmity. Such a vision denied the possibility of new kinds of grassroots action and international cooperation that might sustain political space between states. Challenging the Schmittian–realist view of ineluctable international enmity, Arendt appealed to interest in the survival of one’s own community and to a spatially and temporally extended notion of political judgement as a time-bound activity rather than timeless insight or scientistic techne. Citizens of disparate nations shared only a ‘negative solidarity, based on the fear of global destruction’. Positive solidarity required the construction of a ‘common past’ for humanity. There were precedents in Kant’s call for history with a cosmopolitan intent and Hegel’s world spirit. But these stripped events of individuality and meaning except in relation to a teleological process. The spatial extension of historical time might also risk dissolving national pasts into a ‘shallow unity’ lacking the ‘dimension of depth’ on which human action relied.110 Arendt’s search for models that could do justice to the diversity of historical speech and action and thereby reveal how events ‘illuminate historical time’ led her to commend the pluralistic impartiality of Herodotus and realist ‘objectivity’ of Thucydides.111 For her own part, she offered studies of revolution, biographical sketches of historical figures from Rosa Luxemburg to Bertolt Brecht, and in Eichmann in Jerusalem, a legal–historical narrative in support of calls for an international criminal court.112 Historical political theory was a training ground for the political agent, who judged particulars in time rather than subsuming them under static categories – yet could also relate them to broader historical changes, whether the emergence of ‘humanity’ on a global scale or the threat of the wholesale destruction of the human world. *** In The Machiavellian Moment published in the year Arendt died, John G. A. Pocock declared a debt to Arendt’s study of the modern revival of ancient ideals of citizenship and their thwarting as civic action was supplanted by commercial ‘behaviour’.113 For Arendt, who drew a direct line between these changes and the cataclysms of the twentieth century, the ‘temporal finitude’ of republics dwelt on by Pocock was of as much interest as it was for him. She wrote within a German lineage 110 111

112 113

Hannah Arendt, ‘Karl Jaspers: citizen of the world?’, in Men in Dark Times (New York, 1968), 83, 87. Hannah Arendt, ‘The concept of history: ancient and modern’, in Between Past and Future: Eight Exercises in Political Thought (New York, 2006); see also her reading of the historical method of her friend Walter Benjamin. Hannah Arendt, ‘Introduction: Walter Benjamin 1892–1940’ in Illuminations: Essays and Reflections, ed. Hannah Arendt, (New York, 1968). Hannah Arendt, Men in Dark Times; Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (London, 1965). John G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975), vii, 466, 551; see also Mira L. Siegelberg, ‘Things fall apart: J. G. A. Pocock, Hannah Arendt, and the politics of time’, Modern Intellectual History, 10:1 (2013), 109–34.

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of reflection on the relationship between time, agency and political institutions, in which politics was an activity situated in time, whether unifying diverse schemes in a single course of action, seizing moments, realising collective will, or persuading others to act. Political theorising invoked the problem of knowing, judging and acting upon contingent and time-bound particulars. But where German scholars had once mitigated this contingency by imagining action in a teleological arc binding past to present and future, Meinecke, Schmitt, Koselleck and Arendt emphasised the ruptural quality of historical time. They aligned judgement not with the direction of history but the unpredictable demands of moments in a spatially expanded field of action generative of unintended consequences. Each of these writers left behind considerable legacies. Meinecke influenced the history of ideas in the United States through his students Felix Gilbert and Hajo Holborn. Schmitt has long found interlocutors on the left, and, more recently, among defenders of the Chinese communist party-state. Schmitt and Arendt’s views of politics as a sphere of unceasing contestation have been used by theorists of participatory democracy and agonist theorists to criticise liberalism and positivist political science. Koselleck was, of course, pivotal in the birth of conceptual history as a field with global reach. At the same time, the regard in which these thinkers held historical method, as a proxy for politics and necessary adjunct of political thinking, has played a relatively small role in their reception. This speaks to the impact of the Westernisation of political science that took place in the Bonn Republic, in turn shaped by the trajectory of Anglo-American political science in the 1950s and 1960s, when criticisms of a vaguely defined ‘historicism’ and the sway of positivist methods marginalised normative and historical approaches to politics.114 Even exceptions such as Michael Oakeshott and Leo Strauss and their followers served to reinforce pejorative associations between historical method and the seemingly otiose study of canonical texts.115 By way of conclusion, I will briefly review some features of the post-historicist political thought I have discussed by setting them against the political theories that emerged from the positivist ascendancy in Anglo-American thought. The standard story of the post-war revival of political philosophy places John Rawls’ A Theory of Justice (1971) at its core.116 Indebted to Kant’s separation of morality from history as well as rational choice theory and economics, the conceptual architecture of Rawls’ theory excluded the potential impact of historical change on values and institutions. His ‘veil of ignorance’ rendered time and historical knowledge irrelevant to 114 115 116

See Jens Hacke, Philosophie der Bürgerlichkeit: Die liberalkonservative Begrundung der Bundesrepublik (Göttingen, 2006). John G. Gunnell, ‘The myth of the tradition’, The American Political Science Review, 72:1 (1978), 122–34. For a persuasive rebuttal to this view, see Forrester, In the Shadow of Justice; see also the various contributions to Sophie Smith, Teresa M. Bejan, Annette Zimmermann, eds., ‘Forum: The historical Rawls’, Modern Intellectual History, 18:4 (2021), 899–1080.

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the securing of political authority and legitimacy, while the original position helped approach ‘the human situation not only from all social but also from all temporal points of view’.117 In Rawls’ early writings, normative argument, potentially universal in scope, formed the basis for political life. In his later reflections on questions of political stability he suggested a temporal index for the flourishing of liberal societies, offering historical arguments that plotted past political examples into a Hegelian image of history as a process of moral learning. This historical and sociological turn encouraged his positive reception in Germany in the 1980s and 1990s, aided by a fortuitous convergence with Jürgen Habermas’ long march from Hegelian Marxism to a neo-Kantianism bolstered by commitment to the ‘public use of history’ and a conviction that reason and history are closely related.118 Meanwhile Rawlsian and Habermasian political philosophy has long been criticised by agonist and ‘realist’ theorists, sometimes inspired by the writings of those associated with contextualist methods originating in Cambridge. The moral– analytical approach is accused of subordinating the messiness of politics to a moralism parochial in its universalising of liberal precepts and terms such as justice, fairness and equality, and blind to questions of contingency, power and timing. In these critiques the role of history is to remind us that moral principles are localised and change over time, imposing cultural constraints on the universalisability of concepts of justice, fairness and equality.119 Critics of realism object that this emphasis on contingency downgrades the role of rationality in public life, leaving untouched arbitrary distributions of power and raising the spectre of relativism and the spread of irrational decision.120 A stress on complexity and uncertainty has sometimes hinged on transhistorical psychological claims and historical examples as stylised as those employed by Rawls.121 Feasibility and constraint are important categories in political theory, but so are imagination and affect, which can be directed towards a past understood as a source of inspiration as much as limitation. German writers working with and against the grain of historicism considered these issues on the vexed terrain of the intersection between power, morality and history. Genealogy cannot offer positive moral argument, but as Meinecke argued, neither 117 118

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John Rawls, A Theory of Justice (Cambridge, MA, 1971), 578. Jürgen Habermas, ‘Concerning the public use of history’, New German Critique, 44 (1988), 40–50; for an early critical view of this shift, see Raymond Geuss, The Idea of a Critical Theory: Habermas and the Frankfurt School (Cambridge, 1981). For two early examples, see Benjamin Barber, ‘Justifying justice: problems of psychology, politics and measurement in Rawls’, American Political Science Review, 69:2 (1975), 663–74; Milton Fisk, ‘History and reason in Rawls’s moral theory,’ in Normal Daniels, ed., Reading Rawls: Critical Studies on Rawls’ A Theory of Justice (New York, 1975), 53–80. Lea Ypi, ‘Political realism and activism’, in Political Modernity in the 21st Century, ed. Gerard Rosich and Peter Wagner, (Edinburgh, 2015). Lorna Finlayson, ‘With radicals like these, who needs conservatives? Doom, gloom, and realism in political theory’, European Journal of Political Theory, 16:3 (2017), 264–82. For this point, see Forrester, In the Shadow of Justice, 266.

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does it equate to relativism or endorsement of amorality. These writers criticised the severance of political thinking from an experiential basis but sought to avoid reifying ‘reality’ (and realism) by scrutinising the anthropological assumptions underlying commonplaces about power. For Arendt and Koselleck this entailed reconsidering the ontology of history and how ‘modernity’ altered the time of concepts and the relationship between past and future. The validity of their periodisations is open to question, but their attempts to avoid a misleading binary between political philosophy and historical experience are instructive. While historicisation constrained universalisability, as we have seen, it did not rule out engagement with cosmopolitan or otherwise moral claims, through the sharing of historical experience across expanded global space or investigation into the anthropological presuppositions of history, both of which enable theorising in the register of relative universality. That historical inquiry can be a form of political theorising has long been argued by some practising contextualist methods in the history of political thought. A similar point is made, in a narrow sense, when academic debates enter the public domain, as in the Historikerstreit over National Socialism in the 1980s, or disputes over the centrality of slavery to the history of the United States. In a broader sense the point is also made when public contestation over history is prompted by social movements, as with controversies over the ongoing legacies of empire for global inequality and racism. A generation of German scholars who shaped the emergence of history as a professional discipline directly considered the normative weight of history on politics, with confidence borne of a specific cultural and political configuration. But even for critics of their overt and covert teleologies, historicist reconstruction of past events and ideas provided a powerful basis for thinking about agency in the present, by showing how agents acted in the face of causal constraints and the indeterminacy of the consequences of their choices. Rejection of the Rankean extinction of the self as the condition for pure vision, and an anthropological understanding of historical experience, encouraged critical attention to the temporal and historical effects of theories aspiring to timeless rational and moral principles. In paying attention to the fragility and temporal finitude of political forms, whether republics, empires or nation-states, these theorists did not invoke history in order to expose the ‘reality’ of politics, understood in terms of hard lessons taught by power, human nature or other variables that appear invariant when asserted as limits on political imagination. Rather history was invoked to encourage a sense of politics as requiring both imagination and permanent vigilance, in terms of awareness of historical development and alertness to contingency. This was a realism different from the more straitened version that shadows much political theory and understanding today.

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13 The Right to Rebel: History and Universality in the Political Thought of the Algerian Revolution Emma Stone Mackinnon

INTRODUCTION

Among the most prominent and protracted of mid-twentieth-century anti-colonial conflicts, the Algerian Revolution is more often remembered as a violent struggle for national independence than a conflict over universal rights.1 Yet as part of the conflict, those revolting against French control made frequent appeals to ideas of rights, and in particular to 1789 as a metonym. The revolution’s intellectual leaders drew on of ideas of universal rights, often referencing both the 1948 Universal Declaration of Human Rights and the 1789 French Declaration of the Rights of Man and Citizen. The concept of human rights, in this context, was intrinsically caught up with demands for national liberation and self-determination. In addition to denouncing specific French abuses and unjust rule, Algerian leaders followed up accusations of such abuses by citing the right to rebel. As part of this, they made use of the justification for a previous revolution – that of 1789 – now to justify rebellion against France itself. In doing so, they provocatively asserted that they, rather than the French, were the true inheritors of 1789. How should we understand the citation of French revolutionary ideals in twentieth-century rebellions against France? On a certain telling of the story, the anti-colonial revolutions of the mid-twentieth century marked the now universal expansion of already universalist principles. Such universalist ideals, the story goes, had always been contradicted by colonialism as a practice; Enlightenment ideas of universal rights and self-determination had been declared in the eighteenth century but never fully applied. The accession of new nations to an international order of sovereign states, according to this account, represented modernity on the march. Ideas of self-determination, human rights and sovereign equality, long proclaimed in Europe but denied in its colonies, were finally claimed from below.2 This story 1

2

For claims that anticolonial movements were not human rights movements, see centrally Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA, and London, 2010). Moyn has nuanced this position in more recent work. That anti-colonial revolutions simply repeated ideas derived in the metropole, as discussed later in this chapter, is obviously a heavily ideological claim. And yet the continuity or lack thereof with earlier

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rests on a view of revolution as repetition, in which even revolt can be understood as expressing a form of loyalty. Revolutionary appeals to ideas of human rights and national self-determination were reiterated as part of a demand for inclusion – inclusion in a particular vision of modernity and international order.3 Unsurprisingly, this narrative – in which revolt against European rule can be described as in fact the triumph of European ideas – has received considerable criticism from scholars of history, politics, and international law. Much has been written, as well, on the broader issue it raises of how to best understand the interrelationship between ideals of rights and the violence of imperial rule. Historians of political thought have challenged the supposed separation between Enlightenment liberal ideals – particularly the idea of an international order premised on independent nation-states – and empire as a legal and intellectual project.4 Scholars of international law have disputed the idea that entry into a new international order was premised on equality, and have traced how structures of hierarchy and control persisted even after supposed decolonization.5 Others have questioned whether the ideas of self-determination and rights championed by anti-colonial leaders were truly indebted to those earlier proclamations, arguing that they instead drew on different traditions, with radically different visions.6 For all of these authors, anti-colonial revolutionaries attempted to begin something new, not simply to make better on the promises of the past. At the same time, while new nations emerged, the ultimate trajectory was a tragic one; their more hopeful visions are described as imagined futures past, presenting various paths not

3

4 5

6

rights declarations sets the terms for much of the historiography on human rights; also see Lynn Hunt, Inventing Human Rights: A History (New York, 2007). For an account of the Wilsonian origins of ideas of self-determination, see Elizabeth Borgwardt, A New Deal for the World (Cambridge, MA, and London, 2005). On the tension between demands for fulfilment and demands for something wholly new among anti-colonial movements, see Paul Gilroy, The Black Atlantic: Modernity and Double Consciousness (Cambridge, MA, 1993). An important case here is the Haitian Revolution; notably, while anti-colonial revolutionaries in the mid-twentieth century did at times draw connections to Haiti, the Algerians I consider rarely if ever did. On the relationship between the Haitian Revolution and the French, and the question of repetition and conscription, see David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment (Durham and London, 2004), also discussed later. For the influence of Haiti on ideas of universal history in the metropole, see Susan Buck-Morss, Hegel, Haiti, and Universal History (Pittsburgh, 2009). For an overview of this literature and an argument against reading the Haitian revolution in relation to the French, see Adom Getachew, ‘Universalism after the post-colonial turn: interpreting the Haitian Revolution’, Political Theory, 44:6 (2016), 821–45. On the interrelationship between liberalism and empire in French thought, see especially Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton, 2005). See in particular Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge, 2001); Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge, 2005); Jennifer Pitts, Boundaries of the International: Law and Empire (Cambridge, MA, and London, 2018). See Moyn, The Last Utopia; in a different vein, also see Adom Getachew, Worldmaking After Empire: The Rise and Fall of Self-Determination (Princeton and Oxford, 2019). Also see Gary Wilder, Freedom Time: Negritude, Decolonization, and the Future of the World (Durham, NC, and London, 2015).

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taken in intellectual history. Instead of those radical visions, the argument runs, what won out was not revolutionary change, but the same hierarchy, inequality, and exclusion, even if perhaps now by other names. Tragedy arises both from the contingency of action and from the over-determination of structural inequality.7 Such debates bear directly on how we understand the use by anti-colonial actors of the language of rights. Was their use of the language of rights continuous with Enlightenment language, as a kind of repetition that demanded more faithful adherence? In continuing that tradition, did it also criticize and re-make it? Or did it mark a break from what had come before, a rupture and moment of beginning – whether or not it ultimately succeeded? These questions are heightened and complicated when we think not only about the language of rights in general, but about the idea of a revolution in rights. Looking to the late eighteenth century, we might think of the idea of rights as central to the rise of both the event and the concept of ‘revolution’ itself. Were late eighteenth-century revolutions a beginning, opening an era of rights, in which midtwentieth-century independence movements can be understood as both rupture and continuity? On this view, we might read revolt as coda. In their literature, the leaders of the Algerian Revolution made explicit appeal to 1789, casting themselves as its true inheritors. This might appear to confirm a kind of repetition and expansion story. Such language appears in material issued by the Provisional Government of the Republic of Algeria (GPRA), formed in 1958. The use of the idea of rights and language of 1789 is especially prominent in the work of Ferhat Abbas, a political figure in Algeria before the revolution and president of the GPRA from its inception until independence. The idea a rightful revolution was also important to the legal arguments for the legitimacy of that provisional government, and the sovereignty of Algeria, presented by GPRA lawyer Mohammed Bedjaoui. And yet it would be too quick to think that Algerian leaders were strictly copying ideas that came before. To do so would risk denying the intellectual originality of the movement, taking it as mere application of a prior principle – though of course that itself does not mean it would be incorrect. More saliently, it would risk insensitivity to the historical dynamics that made French ideas powerful as a language of appeal, and the use of French ideals not only as ideas in the abstract, but as ideas that carried substantial power. Relatedly, but in a different sense as well, thinking of appeals to 1789 as copy risks warping our view of colonialism itself. It risks writing off the French colonial abuses against which Algerians protested as simply a failure to fully apply or implement an existing ideal. In this way, it can lead us to misapprehend the relationship not only between the idea of nation and that of empire, but more broadly between ideas and 7

On this sense of tragedy, see David Scott, Conscripts of Modernity; also his Omens of Adversity: Tragedy, Time, Memory, Justice (Durham, NC and London, 2014).

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politics, taking the latter as simply a staging ground for the former – as though if ideas have a temporal trajectory, it is from invention to instantiation. Instead, I will argue, we can see historical narratives as an aspect of concepts as they are contested in and through politics. Looking to the Algerian Revolution, what actors contested was the very narrative of history implied by a notion of proclamation and gradual fulfilment, or of repetition and inclusion. They did so precisely through the assertion of continuity as justification for rebellion itself. As a central organizing concept, the idea of a ‘right to rebel’ crystallizes the scandal of rupture through repetition. Like other forms of would-be legitimate disobedience, the idea of rightful rebellion, and rightful violent rebellion in particular, raises questions of the relationship between rule and violence – questions actively debated by historical actors. Bedjaoui in particular appealed to the use of the idea of rightful rebellion by de Gaulle’s Free France during the Vichy regime. Free France, and in particular the main lawyer in its leadership, René Cassin, had drawn on 1789 in justifying the provisional government in exile as the rightful representative of France itself, arguing that national liberation and self-determination, as reflected in the Atlantic Charter, were the principles underlying Free France’s legitimacy. For Bedjaoui, the legitimacy of the Algerian provisional government was also part of this tradition; French colonial control was a violation of that right, and revolutionary violence could be justified in response. The assertion of a ‘right to rebel’ itself often rests on an historical narrative: rebellion was justified because the imperial government existed in violation of the conditions of sovereign legitimacy. In this case, that historical story was even more elaborate. The legitimacy of the French state arose from its revolutionary principles, principles it actively violated in Algeria; this justified rebellion against France on its own terms. In this way, the idea of rightful rebellion worked to dispute a historical narrative of the gradual expansion of rights and inclusion in Enlightenment promises – as though French rule represented the expansion of those principles – even as it made citational use of those earlier promises. Invoking an earlier notion of a ‘right to rebel’ against regimes that had violated their own foundational principles worked as a kind of palimpsest of lawful rebellion, appealing not to a higher law in a theological sense, but to the authority of past citation in order to deny the authority of French rule in their present. REVOLUTION, REPETITION, AND RUPTURE

On one telling, twentieth-century Algerian revolutionaries citing 1789 and the rights of man were participating in a French discourse – and, by asserting their own inclusion within it, ultimately contributing to its inevitable triumph. This story is, at least in certain renditions, a Whiggish one, tracking a story of Enlightenment’s gradual expansion and casting imperialism as its constitutive outside. When presented as a story about the inevitable expansion of certain ideas, once they were released into

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the world – that is, a story about the eventual universalization of universalist ideas – it can lapse into a kind of teleology. In addition, such a story of the gradual universalization of universal ideals can obscure the way that universalist ideas might themselves contribute to their own non-universal status. This is a particular concern when thinking about the expression of universal ideals in conjunction with projects of empire and colonization. And yet, there is a version of the story that is more plausible, incorporating contingency while also attributing power to ideas. To some extent, acknowledging the ways in which ideas provide a vocabulary for demands to take shape in actors’ imaginations, and also confer legitimation through public as well as legal discourse, requires we see ideas of rights, and their declaration, as potentially powerful. Such a view also accommodates a key insight of post-colonial political thought, articulated classically by Edward Said with reference to Michel Foucault: that colonial power was not merely repressive, but productive.8 As David Scott draws this forward, in part via Talal Asad, the notion of colonial knowledge as productive gives rise to certain forms of subjectivity and self-understanding, conscripting people, in Scott’s terms, into the very idea of modernity.9 Along these lines, one can view ideas of rights, as articulated during events like the French Revolution, as creating the possibilities for future demands without reverting to teleology. Ideas of rights condition ways of thinking and living, and so give rise to a certain horizon of expectation; they ­establish a vocabulary which becomes part of a political language. In one sense, this is a peculiar thing to say about rights: that rather than natural possessions, they are something we learn to see ourselves as possessing. In another sense, however, this also matches the very idea of rights. They are, as Homi Bhabha puts it, ‘proleptic’, operating within an aspirational temporality.10 Rather than a static quality to be recognized, the idea sets forward an expectation, positing one’s entitlement to it and even its naturalness, and so referencing a future and raising the problem of realization. Rather than a prior and natural quality, the idea is generative. It sets an expectation that gives way to a demand. In thinking about how the past establishes a set of shared experiences that are articulated into and on a horizon of expectation for the future, Reinhart Koselleck describes a similar process of how historical experience conditions expectations for the future and thereby gives shape to particular forms of politics. Notably, for Koselleck this is not a transhistorical argument: the experience of history and the idea of historical expectation is itself historically specific. The late eighteenth century, on his telling, marks a particular moment of new experiences of temporality, bringing with it the very sense of living in history. Ideas were themselves part of 8 9 10

Edward Said, Orientalism (1978, New York, 1994). Scott, Conscripts of Modernity; see especially 8–9. See Homi K. Bhabha, Our Neighbors, Ourselves: Contemporary Reflections on Survival (Berlin and New York, 2011), 3–4.

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that notion of historical experience, part of the idea of modernity and of enlightenment as an age. And in this way, the historical narrative of rights giving way to their own fulfilment can be seen as an ideological one and as specific to a particular political moment. But this was more than just a single moment: for Koselleck, the idea of revolution is epoch-making. As he describes it, the French Revolution stands as a key moment of beginning, establishing the experience of revolution itself, and giving way to modernity as an historical experience. In describing the concept of revolution as an historical one, Koselleck writes: ‘Once the declaration of human rights had opened up the social space of expectation, every program strove for further realization in the name of freedom or equality or both.’11 Koselleck’s assessment echoes a narrative in much of the literature on human rights: that once the idea is loose in the world, it has a certain contagious quality. But in Koselleck’s rendering, in terms of rights as setting out an expectation, that idea takes on additional plausibility. The declaration of rights gave form and content to political imagination; it set the terms on which certain demands become intelligible, even thinkable. This was not just as a document, but as an experience marking the possibility of historical change. What is notable about Koselleck’s rendition of this idea is that it is not deterministic, but about an historically specific horizon of intelligibility within which particular political demands might be staged – one that, in turn, explains the appearance of inevitability as well. As Koselleck argues in Critique and Crisis, the idea of the inevitability of rights was an elite historical story arising at the same time as rights themselves, as part of an Enlightenment revolt against absolutism. Utopian visions provided the ground for a critique of the state, while simultaneously yielding a utopian vision of history that obscured the necessity of political conflict through a picture of historical inevitability. The idea of a philosophy of history, which purports to describe the overcoming of crisis, itself arose in and through that same crisis, and the mode of critique it rested upon; this is, he argues, ‘the link between the Utopian philosophy of history and the revolution unleashed since 1789’.12 The introduction of morality into politics gave rise to political conflict; and yet by precisely the same token, that conflict would be described not as ‘civil war’ but as ‘revolution’, because it was viewed not as a political battle, but as ‘the fulfilment of moral postulates’.13 To Koselleck, there was something not only historical, but world-historical, about this moment. Koselleck claims that that revolutionary moment for which 1789 is both an event and a metonym, while taking place in France, ultimately ‘spread

11 12 13

Reinhart Koselleck, Futures Past: On the Semantics of Historical Time, trans. Keith Tribe, (New York, 2014), 52. Reinhart Koselleck, Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society (Cambridge, MA, 1988), 9. Koselleck, Critique and Crisis, 185.

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extensively around the globe and intensively to all mankind’.14 More than a local event, the expectation it created moved outwards, establishing a singular and shared horizon. He closes Critique and Crisis ominously, suggesting that ‘the French Revolution was the first instance of that loan being called in’.15 Even while he suggests a kind of inevitability to the spread of a particular model of revolution, then, he also highlights the political uses of the idea of inevitability. The claim in his essay on revolutions in Futures Past, in this sense, is not describing the inevitable rolling out of revolutions so much as the ideology of revolution itself: that ‘all modern expressions of “Revolution” spatially imply a world revolution and temporally imply that they be permanent until their objective is reached’.16 Any description of the Algerian Revolution as somehow beginning with the French Revolution brings the obvious risk of imperial hubris. In one sense, Koselleck’s description of a ‘utopian philosophy of history’ works to describe this particular form of hubris – even while he also posits the French Revolution as pivotal in giving way to an epoch, allowing not just the demands but the very idea of revolution to become thinkable. This idea of revolution can only be understood after 1789, which provided the horizon of expectation for revolution itself, and re-defined the concept away from an idea of circular repetition to one of a perpetual rolling out of the concept itself. In this sense, it already raised for Koselleck, in Futures Past, the question of emancipation from empire, and the possibility of turning political emancipation into social emancipation more broadly, as part of a singular process. In Conscripts of Modernity, David Scott takes up Koselleck’s insights from Futures Past, using them to think about anti-colonial revolution. Scott borrows from Koselleck the notion that the past provides a set of experiences that shape expectations for the future. At the same time, he highlights that for Koselleck what is characteristic of modernity is not just the idea of inevitability, but also the non-coincidence of what Koselleck terms the ‘horizon of expectation’ and ‘space of experience’: that the past does not straightforwardly determine the future, and that this itself opens a possibility for politics.17 Indeed, for Koselleck, the past, as a horizon of expectation, can itself change.18 Scott claims this poses a challenge to the assumptions behind Foucault’s conception of a ‘history of the present’, emphasizing moments in which the past ceased to provide a horizon of expectation for the present.19 For Scott, these are moments, particularly after the failure of anti-colonial projects, in which rather than opening onto a guaranteed triumph, the past seems to lead to failure. To Scott, in such moments the meaning of present itself is rife with contradiction, and it is the significance of the past for the present that is precisely at issue. 14 15 16 17 18 19

Koselleck, Critique and Crisis, 6. Koselleck, Critique and Crisis, 186. Koselleck, Futures Past, 52. Scott, Conscripts of Modernity, 42–4. Koselleck, Futures Past, 262. Scott, Conscripts of Modernity, 2–3.

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Scott uses C. L. R. James’ classic history of the Haitian Revolution, The Black Jacobins, to think about the transition from a view of past revolutions as providing a romantic vision of future triumphs, as James initially depicted Toussaint L’Ouverture in his first edition, to a view, evident in James’ later revised edition of the same book, tinged by tragedy in the wake of the failures of twentieth-century anti-colonial revolutions and the problems facing newly independent states. In drawing on Koselleck’s notion of modern revolution, Scott reads it together with Arendt’s view of revolution to emphasize an openness onto the future; revolutions are characterized as moments of beginning and uncertainty, and the utopian or romantic narratives of their trajectory as hopeful stories that set forward expectations without guaranteeing fulfilment.20 This highlights a tension: revolution as simultaneously continuation, repetition, and rupture. Utopian and romantic visions do not reflect teleology; rather, their very articulation is a response to uncertainty, including the possibility of tragedy. This should already suggest several different ways of understanding the dilemmas and challenges of anti-colonial revolution in the twentieth century. Thinking about the relationship between past revolution and ongoing colonial rule, we might draw on two insights from Koselleck in particular, which, as I read him, stand in a relationship of dynamic tension with each other. The first: that utopian continuity and the modern concept of revolution gives way to an ideological narrative, contained in the idea of ‘progress’ itself, which obscures the political conflict that modern revolution necessarily involves. And yet second, that the experience of history and the relationship to past revolutions does generate expectations and a space of intelligibility that shapes how actors view their present. In this sense, what Koselleck calls ‘the contemporaneity of the noncontemporaneous’ can appear as a problem to historical actors; the concept of progress provides one way to paper over it ideologically, via a utopian vision, but that papering over is also not entirely successful.21 For Scott, focussing on what we now know as the Haitian Revolution and its legacies in the twentieth century, this tension between the utopian vision, on the one hand, and the actual gap between expectation and experience, on the other, can generate efforts at historical explanation that avoid utopianism but that posit and narrate the possibility of anti-colonial revolution in the light of the past. In particular, the failures of a revolutionary ideal to extend universally, for Scott, can be understood as giving way to a tragic vision. To Scott, that tragedy is at one level a matter of plot, as exemplified, for him, in James’ revisions to his account of Toussaint L’Ouverture and the Haitian Revolution. But it also, following Arendt and Koselleck, he argues, arises out of contingency. Drawing on Arendt and Koselleck’s arguments about a ‘modern’ concept of revolution (and the scare quotes are Scott’s as well), he highlights that what is distinctive to a ‘modern’ concept of revolution is that it does 20 21

Scott, Conscripts of Modernity, 88–9. For ‘the contemporaneity of the noncontemporaneous’, see Koselleck, Futures Past, 90.

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not mark progress through various regimes in a pre-given and programmatic sense, but rather makes the problem of beginning central. In this sense, in contrast to a sociological notion of revolution (which is oddly akin to the pre-modern one, he suggests), revolution is characterized by contingency: as Arendt would have it, this is the contingency of the space of politics, in which one is trying to make something new in concert with others.22 Returning to the uses of the French Revolution and the idea of 1789 by leaders of the Algerian Revolution, we can see evidence of what both Koselleck and Scott describe. The question of how the presence of the past mattered for the future – the relationship between the space of experience and the horizon of expectation, in Koselleck’s terms – was actively contested. And the shifts in narrative suggest something about the fungibility of both the present and the past that Scott depicts. But what also comes through are the political uses of historical narratives – not as a reflection of utopian inevitability, but precisely to highlight contingency and the urgency of action. What Koselleck had described as a utopian narrative is present, particularly within French governmental efforts to rebuff demands for independence, as part of a claim about French identity itself, in which France could be seen as bringing progress to Algeria. This is especially evident in the work of René Cassin, who had previously argued for the importance of French national liberation from Vichy control as part of de Gaulle’s government in exile during World War II. Then, revolt was necessary and justified because Free France represented, to Cassin, the true France, carrying forward the spirit of 1789 and universal rights. But, to Cassin, Algerian rebellion against France represented opposition to that spirit, and to the idea of rights; it was violent and criminal.23 An alternative narrative emerges from the Algerian revolutionaries, appealing to 1789 as part of a justification of rebellion. Historical narrative itself was the subject of political contestation, and struggles over what it meant to be an inheritor of 1789 were part of the revolution itself. This is evident in an ambivalence and disagreement, about positing revolution as both continuity – part of the rolling out of the French revolutionary spirit – and as something entirely new. Looking to such moments in which historical actors actively contested historical narratives and their place in them raises broader questions about the relationships between liberalism and empire and between universalism and racialized forms of domination. These are themselves questions about history. That it is not to say merely that they are questions about how the past persists in the present, but that they raise problems of the historical trajectories and narrative arcs of universalist 22 23

For Scott’s reading of Arendt on revolution and tragedy, see Conscripts of Modernity, 212. For Scott on Koselleck and Arendt together on revolution as a modern concept, see Conscripts, 88–9. On Cassin and Algeria, see Jay Winter and Antoine Prost, René Cassin and Human Rights: From the Great War to the Universal Declaration (New York, 2013) and Marc Agi, René Cassin: Fantassin des Droits de l’Homme (Paris, 1979).

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ideals. They raise problems, that is, for how to understand the contemporaneity of supposedly non-contemporaneous ideals, and the historical narratives that the very idea of their non-contemporaneity presupposes. Attending to the ways in which actors contested not merely the non-fulfilment of past rights declarations, but the historical temporality to which those declarations gave rise, allows us to re-approach what it means to understand ideas of rights, and of their declaration, as giving rise to a progressive temporality of history. The very notion that imperialism was in conflict with the idea of rights, and that it represented the incomplete realization of the idea of freedom or equality, was itself politically contested. Imperialism represented the active violation of rights, in itself as foreign control. The suppression of the rebellion, as the suppression of a right to selfdetermination, similarly, was taken to underscore the incompatibility of imperial rule and the idea of rights. Demands for an end to imperialism made use of ideas of human rights, and connected these with ideas of national liberation and self-determination. Supporters of the revolutionaries, including those in mainland France as well as leaders of newly independent countries at the United Nations, joined them in denouncing French violations of the principles of universal rights in Algeria. While many such denunciations focussed on the conduct of the French government in attempting to suppress the rebellion, particularly its use of torture, others concerned something broader: the question of whether imperial rule was itself compatible with principles of universal human rights. Rather than treat ideas of self-determination as separate from human rights, advocates for Algerian independence connected them through a basis in claims about not only self-rule, but rightful rebellion. Rights were grounded in membership in a political community: they were the foundation of legitimate government, their fulfilment the purpose for which government was established. Further, revolt was justified as itself an exercise of self-determination. French violations of rights in attempting to put down the Algerian Revolution, through torture and indefinite detention, were taken to provide only further proof of the legitimacy of that revolt. CASSIN AND BEDJAOUI ON NATIONAL LIBERATION MOVEMENTS AND RIGHTFUL REBELLION

The Algerian Revolution is often dated as running from 1954 to 1962. That opening date, 1 November 1954, marks the official formation of the National Liberation Front (FLN) and the consolidation of what had been more moderate parties with a more radical wing. Focussing on 1954 highlights the context of mid-twentiethcentury anti-colonial revolutions, for which the Algerian struggle was a touchstone. But an emphasis on 1954 can also risk obscuring the longer story of French colonization, and the longer continuity of Algerian resistance to French rule. In addition, and most immediately relevant here, it misses the 1940s context. That includes the

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relationship between Charles de Gaulle’s government in exile during World War II, and its claims for legitimacy, with later Algerian claims about the rightfulness of the rebellion. Like 1789, considering the period around 1944 and the end of World War II also presents deep contradictions. One key contradiction lies in the coincidence of the denial of national liberation in Algeria even as France won national liberation from Nazi rule. The 1940s brought declarations of rights and promises of selfdetermination, including the classic high points of twentieth-century histories of human rights and international law, particularly the 1941 Atlantic Charter and the 1948 Universal Declaration of Human Rights.24 In connecting ideas of human rights with those of self-determination, the 1940s period figured as a moment of post-war liberation for Europe – and simultaneously saw an upsurge of agitation and revolt against French rule in Algeria. The idea of French national liberation, when used to support French liberation from Nazi control, described national liberation as an ideal. For René Cassin, lawyer with Free France and later member of the committee drafting the Universal Declaration of Human Rights, the legitimacy of Free France’s struggle and the project of human rights were deeply intertwined, and he viewed both as continuations of the project of 1789. As part of de Gaulle’s Free France, he argued for a right to national liberation from unjust rule, contra Vichy, and to self-determination as a right.25 The war also involved the participation of Algerian soldiers on the side of the Allies. When Algerian politicians began to demand greater self-rule after the war, Cassin resisted those demands. During the 1940s, Cassin, as the primary legal thinker for Free France, had argued that it was adherence to French ideas that provided Free France’s very basis of legitimacy. The Vichy government was circumscribing the Constitution of 1875; its continued existence violated the right of self-determination for the people of France. Cassin linked this argument explicitly to the idea of self-determination as articulated in the Atlantic Charter. At a 1941 conference of representatives of the Allies to approve the Charter, to which de Gaulle sent him as representative, Cassin spoke in favour, saying he spoke on behalf of France in praising the ‘the right of peoples to self-determination, so cruelly violated for years by the Axis powers’. Elaborating the ‘various aspects’ of that right, he described it as including both ‘external independence and the freedom to choose one’s government’; tying it as well to a narrative of colonial paternalism, not unlike that of Koselleck’s utopian histories, he also cited ‘the duty of civilized nations to protect less advanced peoples in the interest of their

24 25

See Borgwardt, A New Deal for the World, for a particularly compelling argument in this direction. I discuss Cassin’s position here, and his effort to render compatible his views on 1789, the Free French, the Universal Declaration of Human Rights, and Algeria, in Emma Stone Mackinnon, ‘Declaration as disavowal: the politics of race and empire in the Universal Declaration of Human Rights’, Political Theory, 47:1 (2018), 57–81.

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development’.26 Reflecting on the conference in his later autobiography, Cassin described it as a predecessor to the post-war rise of ‘human rights and international cooperation … the basis of my work for 35 years’.27 Cassin describes his comments at the 1941 conference as setting out an agenda for the rights of man. That was an agenda, as he tells it, that he was also working to develop as part of a sub-commission within Free France to generate a new declaration of rights – ‘a declaration, inspired by that of 1789, but modernized’. In doing so, he states, he was also carrying forward the work from his interwar project on the Ligue des Droits de l’Homme.28 In the early 1940s, as part of Free France, Cassin oversaw a sub-commission chaired by Paul Vaucher which generated a draft rights declaration; that declaration was approved in August 1943. The sub-commission was part of a broader project to prepare for a post-war government that would be positioned to promote France’s prominence in the world. Free France’s 1943 declaration contains a list of rights as well as duties. The last right in the list is a direct copy from the 1793 French declaration: ‘When the government violates the rights of the people, insurrection is, for the people and for each portion of the people, the most sacred of rights and the most indispensable of duties.’ The list of duties also includes, as number 11, a ‘duty’ to rebel ‘if the government violates the constitution’. The assertion of a right to rebellion – and not only a right, but an obligation – underscored Free France’s argument for its own standing as the true representative of France.29 Part of what justified that revolt was the Vichy regime’s constitutional abrogation; it was also, more generally, Vichy’s break from the supposed founding ideals of France itself, and the idea of the rights of man exemplified in the declaration itself, carried forward from 1789 to 1943. In his autobiography Cassin would remember his time with Free France and afterwards, in drafting the Universal Declaration of Human Rights, as working for ‘the restoration of the intellectual and moral influence of France in the world, and the human rights [droits de l’homme] so cruelly trampled by Hitlerism’.30 Cassin saw national liberation as the right and duty of Free France, and colonial tutelage as compatible with the advancement of rights – and not a contradiction. But others would argue that the rightfulness of rebellion claimed by Free France also justified Algerian rebellion. Prominently, in 1959, Pierre Mendès-France made just that argument in an interview with Le Monde. The FLN, he stated,

26 27 28 29

30

This is re-published in Cassin’s autobiography. See René Cassin, Les Hommes Partis de Rien: le réveil de la France abattue (Paris, 1974): 448 (translations are mine). Cassin, Les Hommes Partis de Rien, 276. Cassin, Les Hommes Partis de Rien, 412. For a copy of the draft declaration, see Fonds René Cassin, Archives Nationales, 382AP71. This is also discussed in Mackinnon, ‘Declaration as Disavowal’, 69–74; note that while many of his biographers treat this episode as evidence of a contradiction in Cassin’s thought, what is notable to me is how he attempts to render these views compatible, including the legitimacy of colonial control. Cassin, Les Hommes Partis de Rien, 408.

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had the same legitimacy as a provisional government that Free France had had. Mendès-France had been part of de Gaulle’s provisional government and of his post-war government, but broke with de Gaulle after 1958, in part over Algeria. The FLN itself picked up his argument as fodder for their own case, and worked to publicize it further.31 In his 1961 La Révolution Algérienne et le Droit, also published in English as Law and the Algerian Revolution, Mohammed Bedjouai cited this comment as part of his argument for the legitimacy of the GPRA. Bedjaoui’s book as a whole seeks to establish the legal standing of the GPRA, as sovereign representative of Algeria, and the status of the conflict as an international one, governed by international law. The fourth chapter in particular argues that the GPRA and FLN were the true representatives of popular will; that they had, in the title of the chapter, ‘l’investiture populaire’, translated in the English edition as ‘the mandate of the people’.32 Bedjaoui argues, pointedly, that the ‘rebels’ in Algeria were not simply an armed force lacking in popular legitimacy, but that they took up arms precisely because they represented the people. He compares the movement with de Gaulle’s extensively, walking through a brief history of de Gaulle’s statements from 1940 to 1944. In a footnote, he notes even just the superficial similarities: the CFLN (Comité français de Libération nationale) and FLN as names, the use of radio, headquarters in exile in Carlton Gardens, London and Garden City, Cairo, respectively. Such superficial similarities, he suggests, index a deeper connection. He compares both with revolutionary movements prior, citing Oliver Cromwell and noting French support for the revolt of the American colonies, to argue precisely that the label of ‘rebels’ should not be used to dismiss the Algerian cause, but rather underscored its legitimacy.33 For Bedjaoui, this was proof of the legitimate sovereign authority of the Algerian resistance. His argument was part of a broader international legal campaign by the GPRA to win recognition as a sovereign government. That campaign included efforts at the United Nations, which France vehemently protested, as well as claims related to Algeria’s standing within the North Atlantic Treaty Organization and efforts to have the conflict treated as international such that the Geneva Conventions would apply. All of those claims involved legal and historical arguments about the prior 31

32 33

Le Monde, 17 December 1959, ‘M. Mendès-France: nul ne peut contester la représentativité du F. L. N.’, www.lemonde.fr/archives/article/1959/12/17/m-mendes-france-nul-ne-peut-contester-la-representativitedu-f-l-n_2165497_1819218.html. Quoted and discussed in Mohammed Bedjaoui, La Révolution Algérienne et le Droit (Bruxelles: Editions de l’Association Internationale des Juristes Démocrates, 1961), 62. English version from the same publisher: Law and the Algerian Revolution (Brussels, 1961). Bedjaoui, La Révolution Algérienne et le Droit, 59; Bedjaoui, Law and the Algerian Revolution, 56. See especially Bedjaoui, La Révolution Algérienne et le Droit, 60–3. I discuss Bedjaoui’s argument further in Emma Stone Mackinnon, ‘Contingencies of context: legacies of the Algerian Revolution in the 1977 Additional Protocols to the Geneva Conventions’, in Contingency in International Law: On the Possibility of Different Legal Histories, ed. Kevin Jon Heller and Ingo Venzke, (Oxford, 2021), 319–37.

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sovereignty of Algeria, the occupation of the country by France, and the rightfulness of the provisional government. Claims about the rightfulness of the rebellion were straightforwardly historical in that they drew on the nation’s history to establish claims for sovereign continuity. As part of that, Bedjaoui’s claims were also historical in that they drew on legal precedent, and so necessarily involved a narrative connecting contemporaneous claims with earlier ones. In one sense, the past, as legal precedent, provided a set of expectations that were more formalized and instrumental than those described by Koselleck. At the same time, we might view the law itself as one medium in which expectations are established, and as a language that gives shape to particular claims in the present, providing a vocabulary through which a political imagination can be articulated. Bedjaoui’s work evidences the legal and political mobilization of narratives of the past, to explicitly set expectations and denounce failures, and from there to justify rebellion itself. Bedjaoui figured the GPRA as the inheritor not just of 1789, but of Free France’s struggle. Here, the legal standing of Free France – precisely Cassin’s main concern during World War II – became Bedjaoui’s as well. That standing was never strictly legal, but belies the divide between law and politics in thinking about legitimacy and sovereignty. ABBAS ON REVOLUTION AND BEGINNING

In addition to Bedjaoui’s legal arguments, Ferhat Abbas’ writing as part of the GPRA and following independence set forward a notion of rightful rebellion, one which drew on a historical narrative to articulate the legitimacy of action in the present. For his arguments, as for Cassin’s, 1789 was invoked as a moment of a beginning. This was a ‘moment’ in that the year was not cited as a precise annual period, but as a metonym for a set of events and ideas. Also as in Koselleck’s thought, for Abbas 1789 stood for the French Revolution and the 1789 Declaration of the Rights of Man and Citizen; loosely, it encompassed the 1793 declaration as well. Ideas of 1789 were invoked as an historical parallel, a moment repeated again in the then-present. Looking to Abbas’ writing, then, rather than simple reinforcement of Koselleck’s point, highlights the political uses of historical narratives, and the uses of the past as a set of legitimating claims for action in the present. More than a general point, for Abbas this was specifically about the notion of progress and Enlightenment supposedly embodied in the French republican past, and the relationship of that notion of ‘progress’ to the ideology of empire. Importantly, by broadening our scope and looking to how that narrative circulated in Abbas’ context as well, we see how appeals to a past revolution, and the universalist ideals it proclaimed, did not simply attempt to transpose those earlier philosophical principles of rightful revolt onto current moments, as one of repetition or expansion. Instead, the relationship between the two moments, 1789 and

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1954, was presented as not simply analogical, but rather historical in character – and rife with irony. Part of 1789’s historical status was that it was not merely a beginning, but contained contradictions and falsehoods. The French Revolution of 1789 was also part of a story of the history of French imperialism. In this sense, the Algerian Revolution stood as not just a continuation, but a correction. On Abbas’ telling of the story, the Algerian revolutionaries demonstrated a greater fidelity to the spirit of past moments than those moments themselves contained. Rights appeals brought with them a wider historical narrative about the nature of French rule, the relationship between imperial rule and France’s proclaimed values, and what it would mean to inherit those values. They contained a critique of a history of hypocrisy, understood as a failure to be true to those past beginnings, raising questions about what it meant to properly inherit a particular historic legacy. Of course, neither 1789 nor 1954 can be fully understood as the beginning of something wholly new – and the status of 1789 as reference point, as marking the beginning of an idea as Koselleck would have it, was contested among Algerian actors, not just between Algerian and French. As part of this, the longer history of resistance to French rule in Algeria was claimed by revolutionary actors, sometimes in competition with the language of French ideals and sometimes as complement to that French vocabulary. While 1954 marked a moment of radicalization in Algeria, narratives tracing a longer history often highlight the resistance to French rule from the 1830 invasion onwards. Those resistance movements also drew on intellectual legacies that were distinctly non-French. When Abbas appealed to a language of French ideals, GPRA literature cited heroes of those past rebellions, and Bedjaoui argued for Algeria’s independence on the grounds that it had never been legitimately conquered, these were political assertions, claiming to inherit particular historical legacies precisely because such inheritance was deeply contested. Within Algerian politics until the 1940s, Abbas was quite moderate, seeking equality and accommodation under French rule. There are other intellectual lineages one could trace in explaining the origins of the rebellion. But Abbas is of interest in part because of his initial faith in French ideals, and the way in which he turned away from them while still citing them. This is what led Albert Camus to highlight his role in a 1945 article for Combat: Abbas’ initial embrace of assimilation, and his later rejection of it. He was, as Camus wrote, ‘undeniably a product of French culture’.34 And yet, to Camus, this made it all the more remarkable that even Abbas had moved towards demands for greater independence, within the structure of an ongoing federal relationship. Abbas effectively announced his turn from assimilation towards a more federal solution, as Camus highlights, in the ‘Manifesto of the Algerian People’. The Manifesto was signed by a larger group but primarily written by him, and appeared 34

Albert Camus, Algerian Chronicles, trans. Arthur Goldhammer, (Cambridge, MA, and London, 2013), 107.

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on 31 May 1943, addressed to the Free French Governor General of Algeria, General Georges Catroux.35 On 8 November 1942, Allied forces had invaded and re-taken Algeria from Vichy France; the Manifesto was explicitly framed as responding to and following on the Allied invasion of North Africa. Newly liberated in one sense, Algeria remained occupied by US and British soldiers, with de Gaulle and Free France struggling for control. The Manifesto demanded that France honour the spirit of 1789 and permit Algeria its own constitution, allowing for more equal governance. The Manifesto was presented, in its own text, as ‘more than a plea, an act of witness and faith’.36 The core fact to which it bore witness was the impossibility of assimilation of Algeria, and Arab Algerians, on equal terms within France; that fact, it asserted, meant a different solution was necessary. Following its release, Abbas leveraged the Manifesto as a platform to launch a political party, the Friends of the Manifesto. Camus laments the failure of de Gaulle’s government to take Abbas’ intervention seriously, even though General Catroux did, as a sign of the broader failure to reckon with the fact, as Camus saw it as well, that a crisis point had been reached in any effort at assimilation.37 The text of the Manifesto sets out a history of French colonialism in Algeria, following the description that ‘the colonization of Algeria by France, purported inheritor (héritière pourtant) of the principles of 1789, has lasted more than a century’.38 The history proceeds from the initial invasion in 1830 through political incorporation in 1848 and economic dominance. It includes debates about political rights around the Crémieux Decree of 1870, which granted full citizenship rights to Jewish Algerians but not to Arab or Muslim ones, and the abrogation of that decree under Pétain in 1940. The use of 1789 as an historical reference to explain France’s self-betrayal is repeated in the document. The colonial rule and exploitation of Algeria is presented as even worse than the usurpations of the French nobility, against which the revolt of 1789 had been directed. It intones: ‘One must go very far back, to ancient times, to find a case of such a small class enjoying such exorbitant privileges. The nobility of 1789, destroyed by the ancestors of today’s republicans, did not enjoy so extraordinarily strong a position in France.’ Colonialism was a kind of a usurpation; the ‘legitimate proprietors of the country’ were Algerians themselves.39 At the same time, the Manifesto denounces efforts to teach 1789 as part of the beginning of a story of progress. It describes the creation of a colonial education system in Algeria by France, as part of its ‘educative mission’ and the creation of an indigenous ‘intellectual elite’, including the creation of schools for medicine, pharmacy, dentistry, law and other professions out of which the leaders of the 35 36 37 38 39

The Manifesto is reprinted in Le Mouvement National Algérien: Textes 1912–1954, ed. Claude Collot and Jean-Robert Henry, (Paris, 1978), 152–70. Le Mouvement National Algérien, 155. Camus, Algerian Chronicles, 109–10. Le Mouvement National Algérien, 156. Le Mouvement National Algérien, 158–9.

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revolution had themselves emerged. And this continued across generations: ‘this elite sent, whenever possible, not only its sons, but its daughters, to the French school. Civilization, the French Revolution of 1789, progress, it filled them with enthusiasm and forged a new soul.’40 And yet, the Manifesto continues, this was not done ‘for the sake of humanitarianism or justice or even less for civilization or progress. It was, in its essence, an imperialist phenomenon.’41 In its objection to French imperialism, the Manifesto openly praises French ideas of progress and revolution, while objecting to projects of civilization that are done disingenuously. The irony of this hypocrisy, the Manifesto claims, is due to the real commitment to progress among Algerians themselves. As one of the more glaring passages reads: ‘We are in North Africa, at the doorstep of Europe, and the civilized world witnesses this anachronistic spectacle: a colonization exercised over a white race (une race blanche) with a past prestigious civilization descended from the Mediterranean races, perfectible, and having manifested a sincere desire for progress.’42 On this telling, the sincerity of Arab Algerian desire for progress, itself tied to whiteness here, is what makes imperialism objectionable. Throughout the Manifesto, that argument remains consistent: the Algerian claim to inherit 1789 and a legacy of progress is more sincere than the French claim. While the Manifesto represented a moment of radicalization for Abbas, in retrospect it appears as a tentative first step, as he grew more convinced that reconciliation within France was untenable and that independence was necessary for Algeria. A key point for his further radicalization, and for that of the Algerian struggle more widely, occurred on VE Day, 8 May 1945. On that day, massacres in the towns of Sétif and Guelma were touched off when French gendarmeries fired on Algerians marching to celebrate the end of World War II who were reportedly carrying the Algerian flag. The massacres left tens of thousands of Algerians dead, as well as many settlers of European descent. Abbas was also arrested this day, and would be held for eleven months. Abbas formed his own political party, the Democratic Union of the Algerian Manifesto (UDMA). In 1954, the UDMA joined with the FLN; in 1958, when the Provisional Government of the Republic of Algeria was declared, Abbas was made its president.43 As Fanon summarized in a 1960 address in Accra, nearing the fifteenth anniversary of the massacres, even the numbers officially recognized by the French government – 45,000 Algerians dead – would ‘revolt any conscience’.44

40 41 42 43

44

Le Mouvement National Algérien, 160. Le Mouvement National Algérien, 161. Le Mouvement Nationale Algérien, 163. For the shifting politics of federalism in Algeria in this time, and Abbas’ place within it, as well as the specific context of the 8 May 1945 massacres, see especially Frederick Cooper, Citizenship between Empire and Nation: Remaking France and French Africa, 1945–1960 (Princeton and Oxford, 2014), 29–32; and James McDougall, A History of Algeria (Cambridge, 2017), 179–86. Frantz Fanon, Alienation and Freedom, trans. Steven Corcoran, ed. Jean Khalfa and Robert J. C. Young, (London, 2018), 657.

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As head of the GPRA, Abbas continued to issue declarations, appealing in particular to ‘Europeans of Algeria’ to join the side of independence. He pledged loyalty to principles of universal rights and self-determination, against racial hatred and division. Fanon refers in his Accra address to Abbas’ February 1960 ‘Appel aux Européens d’Algérie’.45 On Fanon’s description, ‘he solemnly appealed to the Europeans of Algeria as Algerian citizens – a declaration whose soaring thoughts and moving terms have made an impact on the most pro-French Western countries’. And yet, Fanon narrates, ‘General de Gaulle responded, under the pressure of the settlers and the army, that it was necessary to destroy any idea of an Algerian nation’.46 It was that refusal that explained, as Fanon put it in the title of the same address, ‘why we use violence’. Abbas’ longer-form writings appeared after independence in 1962, and offer retrospective views of the struggle. They are especially notable here for their effort to proffer historical narratives as themselves politically necessary. Abbas opens his 1962 La Nuit Coloniale, a retrospective on the Algerian Revolution and his role in it, with the assertion that it is not for him to write history. Instead, he claims, the book is offered – like the Manifesto before it – as an act of ‘witness’ (témoignage). Yet the book is, by all appearances, a history: it recounts the story of the country from the French invasion in 1830 through to the present. It is, he claims, an effort to explain ‘to the youth of my country why we engaged in armed revolt to destroy the myth of “French Algeria” (l’Algérie français)’.47 Denying the myth of French Algeria does not mean, however, breaking with France. Near the end of La Nuit Coloniale, Abbas recalls standing before the youth of the UDMA in Sétif in 1948, and invoking ‘the immortal cry of the revolutionaries of 1789: “Liberty or death!”’48 This inheritance is only fitting, he suggests. As he had written in opening the book, the denial of equal rights in Algeria and assertions of racial inferiority represent a ‘falsification of History’, as though colonialism worked to ‘distribute the benefits of civilization’, while ‘the colonized … intervened as a naughty man, a troublemaker’.49 He explains further: ‘In 1789, [France] defended the rights of man and the liberty of peoples. In our times, she defends feudalism and privilege.’50 The French, on his account, were making false history; Algerians were working for true progress. Throughout La Nuit Coloniale, Abbas repeats this narrative: that France has turned on its own ideals, and that those truly carrying forward those ideals in the present were Algerians. He attacks the racism of the French in denying equal rights 45 46 47 48 49 50

For Abbas’ address, see Déclarations de Ferhat Abbas (Janvier 1960–Avril 1960), published by Ministère de l’Information République Algérienne, May 1960. Fanon, Alienation and Freedom, 657. Ferhat Abbas, La Nuit Coloniale: Guerre et Révolution d’Algérie (Paris, 1962), 11. Abbas, La Nuit Coloniale, 230. Abbas, La Nuit Coloniale, 17. Abbas, La Nuit Coloniale, 16.

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to Arab Algerians, and in seeing categories of universal rights as non-universal.51 He asserts there: ‘There was a fundamental analogy between the intellectual currents that animated the European people after the Napoleonic Wars and the national aspirations of Africans after the two world wars. But by the second time, France had changed its position.’52 Similarly, then, the argument tracks a continuous set of principles, and criticizes France for having changed sides and become disloyal to its own foundations. Meanwhile, Algerians – and here, notably, African liberation movements more generally – are presented as the true representatives of those ideas. His 1980 Autopsie d’une guerre similarly cites 1789 repeatedly, positioning Algerians as its true inheritors.53 For Abbas, 1789 marked the beginning of an idea of progress, contained in the revolution itself. This was not simply a revolutionary principle to be repeated, or properly applied. Rather, the Algerian revolutionaries were, on his telling, the proper inheritors of those principles, and rebelling against an imperialism that had lost its way. That required re-narrating a history of Algerian nationhood, emphasizing the continuity of resistance to France. The status of 1789 was, for him, not a fixed fact, but actively contested. It stood for the making of history itself, the idea of progress. FANON ON THE RIGHT TO REBEL AND THE MAKING OF HISTORY

Frantz Fanon’s The Wretched of the Earth appeared in 1961, shortly before both Fanon’s death and then Algerian independence in 1962. With Abbas, Fanon had been part of the GPRA leadership, including as ambassador to Ghana. And yet Fanon’s work can read like a critique of the citation of the French spirit in Abbas’ work, and in particular of figures like Abbas as instances of the ‘native intellectual’: French-educated and enamoured of would-be European values, and seeking to lead a revolution on that basis. In many ways, Fanon’s final book can be read as a rejection of the idea of independence as accession into a modern order, insisting that, rather than imitate Europe, newly independent nations needed to forge something new. This is true, as Fanon argues, not just after independence; the creation of something new is present in revolutionary activity itself. Colonialism, as he describes it, divides the world in two; this Manichaeism is not static, but dynamic, producing in the colonized a desire to ‘take the place’ of the colonizer. True revolutionary struggle, he claims, must involve more than this. Yet that desire to take the place of the settler initiates a struggle that Fanon describes as inherent to the colonial situation, and to its dialectical overcoming. While violence is a response to the situation of colonialism itself, it also becomes – or might become – more than this. Rather than simply 51 52 53

Abbas, La Nuit Coloniale, for example, 25. Abbas, La Nuit Coloniale, 15–16. Ferhat Abbas, Autopsie d’une guerre (Paris, 1980).

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take the colonizer’s place, and especially rather than allow a native elite to replace a European one, the colonized must create a new nation, with new leaders, new economic relations to support the people, and a new society. Fanon describes the mythology of the settler as the one who makes history, the native as a background condition, who without colonialism would be stuck in the ‘middle ages’. Fanon writes: ‘The settler makes history …, his life is an epoch, an Odyssey. He is the absolute beginning … he is the unceasing cause.’54 In one sense, Fanon is diagnosing the ideology of the settler, and an ideology not unlike that which Abbas had also described. They both denounce the idea that progress begins from Europe, and that imperialism works to advance the societies in which it arrives, which themselves had no prior history, as an imperial mythology. But Fanon’s description operates in an even more particular register. Fanon is also describing, and diagnosing, how things appear to people in a colonial situation. The light and dark areas of the town, the different material, sensible lives of the settler and native, which he describes in detail in the book’s first chapter, give an additional reality that renders ideology more real and plausible. He is describing the material conditions for a particular experience of temporality, and of historical time. Like Koselleck, he is describing temporality as historically specific, as it appeared to and was experienced by those inhabiting it. Fanon repeats: ‘The settler makes history and is conscious of making it.’55 For the native Fanon describes, the colonial landscape, the ‘world split in two’, shapes a different imagination. Within that landscape, simultaneously material and psychological, Fanon writes, ‘the native laughs in mockery when Western values are mentioned in front of him’, and ‘in the period of decolonization, the colonized masses mock at these very values, insult them, and vomit them up’.56 The universalism of Western values is betrayed by the two-tiered citizenship structure within Algeria under French rule. Revolt here stands as an affirmation of equality, as affirming the possibility of substitution by assuming the identity of the settler. In understanding colonialism as generative and productive of anti-colonial resistance, we find an analogue to the view of revolt itself as a right authorized by those prior declarations and their violation in the colonial context. In this context, the question of beginning becomes particularly central. For Fanon, the desire to mimic the settler, the native’s dream of ‘setting himself up in the settler’s place’, can work to begin history again. The native becomes active, rather than static. The goal of anti-colonial revolution then is ‘to put an end to the history of colonization – the history of pillage – and to bring into existence the history of the nation – the history of decolonization’.57 As he puts it, the citation of 54 55 56 57

Frantz Fanon, The Wretched of the Earth, trans. Constance Farrington, (New York, 1963), 51. Fanon, Wretched of the Earth, 51. Fanon, Wretched of the Earth, 43. Fanon, Wretched of the Earth, 51.

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past heroes of resistance to imperial rule, a popular enthusiasm surrounding those who fought the French invasion in the 1830s, demonstrates that ‘the people are getting ready to begin to go forward again, to put an end to the static period begun by colonization, and to make history’.58 Narrating past resistance, and reviving heroes from that moment, as Abbas did in his writing, stands as evidence that the stasis of colonialism is untenable; that something new is coming. In this sense, the expectation generated by past experience is the grounds for revolt, but does not itself dictate the future. Fanon writes in the conclusion to Wretched of the Earth: ‘It is a question of the Third World starting a new history of Man, a history which will have regard to the sometimes prodigious theses which Europe has put forward, but which will also not forget Europe’s crimes.’59 A new history does not abandon what came before. Rather, in keeping with the dialectic vision he defends throughout the book, the task in pointing to such contradictions is to heighten them, so as to overcome them and transcend what came before. To do so would, on his terms, mean putting an end to the history of colonialism, and the Manichaean world it generates, and beginning a history of decolonization. For Fanon, the challenge of what comes after revolution is a central concern – and a distinct challenge for post-colonial revolutions. He notes in Wretched of the Earth that ‘In 1789, after the bourgeois revolution, the smallest French peasants benefited substantially from the upheaval.’ But for contemporary independence movements, in certain ‘underdeveloped countries’, it can be harder to deliver on the hopes of revolution, and to make meaningful change that will be widely felt.60 This derives, on Fanon’s telling, from a different material situation, one that heightens the risk that revolution led by a local elite will simply replace one exploitative class with another. The source of that new history, for Fanon, must lie among the people themselves. He is sceptical of leaders who purport to arrive with answers, and to educate; throughout The Wretched of the Earth, he praises spontaneity and collective action. In a 1957 article for El Moudjahid, following an invocation of the potential of the Algerian Revolution as an historical event, Fanon writes that ‘up to now democracy has been treated as a cultural notion, understood as one of the essential components of the modern spirit in contrast with feudal consciousness. To specify it further, it must be given an objective social content, that is to say, be essentially understood as power.’61 This is a question, he continues, of whether ‘the Algerian people, which is liberating itself, is making a democratic revolution’.62 Past ideals are not themselves constitutive of democracy, and to mimic them could never constitute democracy.

58 59 60 61 62

Fanon, Wretched of the Earth, 69. Fanon, Wretched of the Earth, 315. Fanon, Wretched of the Earth, 74–5. Fanon, Alienation and Freedom, 572. Fanon, Alienation and Freedom, 572–3.

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Fanon closes The Wretched of the Earth with a challenge, not just to Algerians but to those revolting against colonialism more widely. He writes: ‘Comrades, let us not pay tribute to Europe by creating states, institutions, and societies which draw their inspiration from her. Humanity is waiting for something from us other than such an imitation, which would be almost an obscene caricature.’63 The task he sets, that of resisting mimicry, was in one sense about designing political institutions that would avoid the problems he devotes much of the book to critiquing: the rule of bourgeois elites and the violence both comprising and produced by colonialism. Fanon lamented the inclination among some of his colleagues to replicate state and social structures that marginalized the peasantry and privileged Europeaneducated intellectuals in the cities. He approached that inclination diagnostically, treating it as part of the desire produced by colonialism itself. The false Manichaeism between colonizer and colonized, he claimed, produced in the colonized the desire to put himself (and throughout Fanon’s work, the gendering is not incidental) in the place of the colonizer. And, in resisting a replication of European structures, as the appeal to humanity suggests, he simultaneously rejects a reliance on national sovereignty as a bulwark against imperial rule. What is to come next instead is a new kind of humanity: ‘to set afoot a new man’.64 For Fanon, that newness represents not a simple break with the past, but instead its dialectical overcoming. REVOLUTION AS CONTESTED BEGINNING

For thinkers of the Algerian Revolution, the significance of 1789 was clear and yet also contested. This was in part reflective of political disagreements: we might think of the changes within Abbas’ own politics, as he became more radical as the prospects of assimilation and then federation receded; or think of Fanon’s sense of the uses of 1789 in Abbas’ appeals, even while he viewed it as a bourgeois revolution that could not be repeated in the same way in the present. As evident in Abbas’ appeals to the youth of Algeria and to European Algerians, as well as in Fanon’s response, the concept of 1789 also held strategic power. For Abbas in particular, this was in part about the need for a historical narrative to unite a nation, and to summon it into coherence. This was true in Bedjaoui’s use as well, to justify the claims to sovereignty of a provisional government, as it was in Cassin’s case for Free France. What these political and legal disagreements illustrate is the relevance of that past revolution for the present, as setting out expectations and a political language of appeal. One does not have to endorse an imperial vision of ideas expanding outwards from the metropole, or a utopian ideology of history, to see how political languages established horizons of intelligibility and expectation. The idea of revolution was 63 64

Fanon, Wretched of the Earth, 315. Fanon, Wretched of the Earth, 316.

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distinctive here, as a language enabling critiques of hypocrisy or at least of historical irony, and justifying revolt. In some sense, the experience and expectation set forth by the idea of 1789 provided a background constitutive condition, generating horizons of intelligibility and determining the scope and shape of political imagination. It conscripted people into a particular notion of modernity. But – and this, I would suggest, is where we might go beyond Koselleck’s account – the status of 1789, the utopian historical story it initiated, and the question of what it would mean for it to spread around the globe was transparent to political actors, and understood not as a solution but as a problem; it was therefore also the explicit subject of political contestation. Scott describes C. L. R. James’ account of the Haitian Revolution in The Black Jacobins as ‘a revolutionary study of a revolution’.65 Even in the context of the Algerian rebellion, Abbas, Bedjaoui and Fanon – comrades and colleagues, though with deep ideological differences among them – self-consciously considered, and debated, the revolutionary potential of the concept of revolution itself. They made political use of historical narratives of revolution, and in particular of revolutionary beginning. The idea that revolution might be justified with reference to the past, and simultaneously represent a revolt against the authority of that past, is crystallized in the concept of a right to rebel. If 1789 was a beginning point, this was in part because of the political relationships that followed from it. To describe that as ‘modern’ belies the sense in which the category of modernity was precisely at issue. The contemporaneity of the noncontemporaneous – of national liberation and imperial rule – was thinkable as a problem, and contestable in terms of ‘rights’, in part because of the expectations set forth by the idea of national liberation, both in 1789 and in 1944. But the problem of non-contemporaneity, and the broader issue of how to understand the coincidence of narratives of progress and ideas of universal rights with imperialism, were not taken for granted. Rather, questions of whether to understand a progress narrative about universal rights as consistent with empire, as an enabling fiction for imperial control, or as hypocritical when in combination with imperialism were actively debated. So was the question of whether ideas of progress and universal rights might still provide useful grounds for appeal. In this way, 1789 marked both beginning and betrayal. It was a tool for appeal, and simultaneously a justification for revolt. And yet, as Fanon in particular highlights, it could not simply be repeated: anti-colonial revolution had to respond to those contradictions, in order to then bring forward something new. In this sense, 1789 provided an idea of modernity, but one that would need to be transcended and overcome in any true act of beginning. 65

Scott, Conscripts of Modernity, 88.

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Index

Abbas, Ferhat, 287, 298–303, 305–7 Abraham, 157 Accra (Ghana), 301 Accursius, 57 Achenwall, Gottfried, 227, 229 Acosta, José de, 26 Acts of the Apostles, 21 Adam, 89, 141, 157, 170, 193 Africa, Africans, 278 Agrippina, 150 Alanus Anglicus, 59 Alciato, Andrea, 54 Alexander, William, 192 Alfred, King of England, 72, 79 Algeria. See Algerian Revolution Algerian Revolution, 33, 285–307 Ambrose, Isaac, 139–40 America, the Americas, 15, 25, 30, 156, 187, 253 Ammianus Marcellinus, 15 ancient constitution English, 18, 83 French, 18, 64 ‘Ancients and Moderns’, debate or ‘querelle’, 13 Anderson, Adam, 180, 186–93 Anthropocene, 5, 33 anthropology, 9, 214, 215, 229 Aquinas, Thomas, 79, 86, 94, 97, 137–8 Archer, John, 141 Arendt, Hannah, 261, 274, 277–82, 284, 292 Aristotle, 112–13, 115, 153, 182, 210, 227, 253 Arthaśāstra, 31 Arthur, King, 79 Asad, Talal, 289 Ashe, Thomas, 144, 145 Asia, 11, 30, 253 Atlantic Charter (1941), 295 Augustine, of Hippo, 20, 22, 137 Azo, 57, 58, 62

Bacon, Francis, 24, 103–5, 109, 112, 116, 119–32, 182, 254 Baker, Keith Michael, 28 Baker, Richard, 151 Baker, Sir John (J. H.), 67 Baldus de Ubaldis, 62 ‘barbarian’ peoples, 15, 25, 197 Barbeyrac, Jean, 227 Bartolus of Sassoferrato, 18, 54, 62, 64 Bassianus, Johannes, 57 Baumgarten, Alexander, 226, 229, 230 Bayle, Pierre, 23, 177, 229, 234, 235 Bede, the Venerable, 188 Bedjaoui, Mohammed, 287, 288, 297–9, 306–7 Begriffsgeschichte (Conceptual History), 9, 30, 276, 282 Bellarmine, Robert, 86 Bentham, Jeremy, 217, 252, 256 Berlin, Isaiah, 260, 267 Berlin, University of, 237, 241, 249–50, 264, 265 Bèze, Théodore de, 55, 63 Bhagavad Gita, 31, 32 Bible, 2, 85, 96, 100, 101, 140, 156, 191, 198, 260 chronologies, 21, 158, 167, 188 Epistles, 164, 169 Jewish, 20, 157 New Testament, 20, 157 Old Testament, 20, 65, 157, 167, 176 Pentateuch (Torah), 157, 167 as the Word of God, 88–90, 98, 157, 161, 168–9, 175 See also under individual Books: Genesis, Exodus, Numbers, Deuteronomy, Samuel, Ecclesiastes, Daniel, Acts of the Apostles, Revelation, Septuagint Bismarck, Otto von, 6, 25, 265, 266 Blackstone, Sir William, 70, 71, 79 Blanot, Jean de, 59

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342

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blemmys, existence accepted by Monboddo (q.v.), 209 Bluntschli, Johann Caspar, 244, 265, 271 Böckenförde, Ernst Wolfgang, 273 Bodin, Jean, 91, 158, 254 Boethius, 137, 139 Bolsheviks, 272 Boucher, Jean, 87, 90 Boulanger, Nicolas-Antoine, 178 Bracton, 70, 74, 77, 79, 82 Bramhall, John, Bishop, 138, 155 Brecht, Bertolt, 281 Brett, Annabel, 3, 17 British Empire, 187–8 Brunner, Heinrich, 70 Bucer, Martin, 85 Buffon, Georges-Louis Leclerc, Comte de, 27, 195, 199, 203–6, 208, 210–12 Burke, Edmund, 27, 252 Butler, Joseph, 183, 185 Byzantine Empire, 37–53 See also Roman Empire, Eastern Caesar, Julius, 116 Cairo, 297 Cajetan, Tommaso de Vio, 94, 96 Calvinism, Calvinist, 18, 55, 63, 160 Camus, Albert, 299–300 Cannan, Edwin, 187, 188 Canon Law, 19, 59, 74, 92 Casaubon, Isaac, 118 Cassin, René, 288, 293–8, 306 Cassirer, Ernst, 194 Cato, 116 Catroux, George, General, 300 Césaire, Aimé, 278 Charlemagne, Emperor, 156 Charles I, King of England, Ireland and Scotland, 76, 78, 80, 154 Charles VIII, King of France, 254 China, 30, 156, 282 Chinese philosophy, 15 Chladenius, J. C., 8 Christ, Jesus, 5, 20–2, 62, 63, 65, 84–6, 92, 93, 98, 100, 140, 157, 160, 164, 174–6, 188, 189 Christology, 17, 44–52 Christian Church, 13, 22, 58, 62, 90, 96, 100, 132, 157, 158, 173, 174, 254 Christian Democracy, 279 Roman Catholic Church, 86, 87, 92, 94, 176, 260 chronocenosis, 6 chronopolitics, 6, 11 Cicero, 88, 116 civil history. See politic history

Civil Law. See Roman, or Civil, Law civil science. See political science civilization, civilized society, concepts of, 26–7, 180, 192, 195–7, 200–7, 210, 213–15, 265, 275, 301 civitas, 25, 158 Clark, Sir Christopher, 5, 11, 25 Cnut, King of England, 72 Coke, Sir Edward, 19, 75, 78–83, 144–6 Collingwood, R. G., 260, 261 colonialism, 287, 300, 302–5 Common Law, 18–19, 184, 186 ‘Common Law mind’, existence asserted, 18–9 ‘Common Law mind’, existence denied, 83 English, 67–83, 144–6 German, 238 Habeas corpus, 82 and the history of political thought, 82–3 immemorial custom, preceding the limit of legal memory (1189), 18, 75, 82, 145 Common Lawyers, 144–8 commonwealth, concepts of, 84–101, 143, 147 Comte, Auguste, 260 Condorcet, Nicolas de, 198 Confederation of the Rhine, 238 Confucius, Confucianism, 15, 30, 31 Congress of Vienna, 238 conjectural history, 26, 27, 179–83, 186, 189–93, 195, 198 Constant, Benjamin, 178, 217, 256 Constantinople, 47, 49 contingency, 23–5, 261, 283, 292 contract, covenant, concepts of, 99, 159, 170, 202, 223, 227, 261, 265 cosmopolitanism, 261, 267, 284 Councils of Chalcedon (451), 17, 40, 45, 46, 48 of Ephesus (431), 40, 48 Croce, Benedetto, 259, 260, 269 Cromwell, Oliver, 297 Crousaz, Jean-Pierre, 230 Crusius, Christian August, 230 Cujas, Jacques, 18, 19, 54 culture (Kultur), 261, 264, 267 Cyril, Patriarch of Alexandria, 46 Dacres, Edward, 150 Dalrymple, John, 19, 185 Daneau, Lambert, 88–90, 99 Daniel, Book of prophecy of world empires, 62 Daniel, Samuel, 104, 107, 108 Danzig (Gdańsk), Gymnasium of, 91 Daubenton, Louis-Jean-Marie, 199 Davies, Sir John, 76, 144–5

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Index Davis, Kathleen, 11 de Gaulle, Charles, General, 288, 293, 295, 297, 300, 302 Declaration of Independence, American (1776), 28 Declaration of the Rights of Man and Citizen (1789), 33, 285, 290, 298 democracy, 225, 262, 267, 271, 273, 278, 282, 305 Descartes, René, 226, 230, 255 Deuteronomy, Book of, 163, 167, 170 Dilthey, Wilhelm, 263 Dionysius the Areopagite, 45 division of labour, 200, 210, 246 Doddridge, Sir John, 144 Domesday Book, 77 Donaldson, Megan, 17 Droysen, Johann Gustav, 263 Du Bois, W. E. B., 278 Dunn, John, 12, 13 Ecclesiastes, Book of, 149 ecclesiastical history, 22, 157 Edelstein, Dan, 6, 28 Edgar, King of England, 72 Edward the Confessor, King of England, 72 Leges Edwardi Confessoris, 72 Edward I, King of England, 71–3, 77 Edward II, King of England, 73 Edward VI, King of England and Ireland, 85 English Revolution, 254 Enlightenment, 7, 10, 26, 156, 177, 192, 194, 215, 217, 235, 255, 263, 264, 267, 275, 285, 287, 288, 290, 298 Berlin Enlightenment, 226 Scottish Enlightenment, 26, 179, 188, 194–5, 200 eschatology, 21–2, 141, 154, 271, 275 Eßbach, Wolfgang, 248 eternity belongs to God, 36 as everlasting existence, 38, 45, 52–3 as the nunc-stans, 20, 45, 52–3, 137–40, 142 and politics, 37 understood by Hobbes as an endless succession of time, 140–1 as understood in Justinian’s Law Books, 43–4, 51 Ewing, Blake, 25 Existentialism, 260 Exodus, the, and Book of, 21, 163, 167, 170 Ezechiel, Prophet, 163 Ezra, the Scribe, 159, 167 Fall, the, 84, 85, 88–92, 98–101 Fanon, Frantz, 33, 279, 301–7 Fascism, 260, 261

343

Faure, Jean, 60, 66 Febvre, Lucien, 196 Ferguson, Adam, 27, 179, 182, 192, 196, 203–7, 209, 211–13 Feudal Law, 19, 185 Feuerbach, Ludwig, 224 Fichte, Johann Gottlieb, 255, 267 Flood, the, 156, 178, 188, 192 Forsthoff, Ernst, 273 Fortescue, Sir John, 76 Foster, George, 141 Foucault, Michel, 289, 291 France, 28, 59, 61, 68, 86, 88, 158, 196, 217, 242, 243, 285–307 Frederick II, ‘the Great’, King of Prussia, 6, 217, 221, 226, 228 Frederick William I, King of Prussia, 226 Frederick William, of Prussia, ‘the Great Elector’, 6 freedom. See liberty French Revolution (1789), 5, 7, 9, 18, 27–9, 33, 34, 68, 195, 217, 218, 223, 224, 237–9, 241, 242, 255, 257, 275, 285, 287–93, 298, 299, 301 French Revolution (1830), 217 Friedrich, Carl, 275 Furet, François, 277 Gans, Eduard, 18, 29, 237, 239–40, 249–58 Garnett, George, 19, 64 Garrett, Aaron, 27 Genesis, Book of, 20, 36, 167, 186 Geneva, 88 gentiles, 157, 177, 178 Gentili, Alberico, 108, 118 Geoffrey of Monmouth, 78 Germany, 10–11, 18, 29, 68, 71, 220, 225–9, 237–58, 260–6, 269, 271, 273, 274, 283 Geroulanos, Stefanos, 6 Ghana, 303 Giannone, Pietro, 19, 176–7 Gibbon, Edward, 2, 15, 177 Gilbert, Felix, 106, 280, 282 Gilson, Étienne, 260 Glanvill, 70, 72, 74, 76, 77 Glasgow, University of, 200 global intellectual history, 11, 30–3 Goethe, Johann Wolfgang, 263 Goldberg, Samuel, 103 Gottsched, Johann Christoph, 230 Greenhouse, Carol, 36–8, 53 Grenewey, Richard, 150 Greville, Fulke, 104, 108, 125 Grimm, Friedrich Melchior, 197 Grotius, Hugo, 12, 95–101, 183, 225, 227–9, 254

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344

Index

Guelma (Algeria), 301 Guicciardini, Francesco, 2, 23, 102, 105, 109–12, 121, 126, 129, 135 Guizot, François, 217 Habermas, Jürgen, 275, 283 Habsburg Empire, 238 Haitian Revolution, 292, 307 Halle, University of, 226 Haller, Albrecht von, 256 Hannibal, 149 Harrington, James, 19 Hartog, François, 5, 6, 37 Harvey, Gabriel, 125 Hayward, Abraham, 252 Hayward, Sir John, 103 Hebrew Republic, 21, 160, 169–72, 176 Hebrews, 157, 159, 165, 167, 169, 173 Hegel, G. W. F., 1, 8, 250, 252, 253, 260, 264, 265, 268, 269, 279, 281 Hegelian philosophy, 239 Heidegger, Martin, 262, 276, 280 Heidelberg, University of, 249, 277 Henry of Navarre, also Henry IV, King of France, 86, 87 Henry II, King of England, 72, 74, 77, 82 Henry III, King of England, 76 Henry III, King of France, 86 Henry VII, King of England, 124 Herder, Johann Gottfried, 219, 221, 234, 260, 263 Herodotus, 2, 281 Hill, Thomas, 139 Historical School of Law (German), 217, 237, 246, 248 criticised by Eduard Gans, 251 criticised by Jeremy Bentham, 252 Historicism (also Historismus), 8, 29, 259–67, 274, 277, 282, 283 Historikerstreit, the, 284 historiography, 15, 109, 194, 266 Historism. See Historicism (also Historismus) history Arendt on history as an enabling condition of political life, 277–81 Bedjaoui’s legal–historical justification of Algerian independence, 298 definitions of historical argument, 2–3, 104 Fanon on colonial and postcolonial histories, 304–6 history as narratives, 14, 16, 113, 130, 135, 157, 165, 194, 288, 293, 298, 302, 307 Koselleck’s concepts of History (Historie, Geschichte), 8, 240, 276 Meinecke on history and politics, 266–9, 275 philosophical history, 194, 196

Prussian School of, 264–6, 270, 277 ‘ruminated history’, not recommended by Bacon, 123–4 or Hobbes, 130 See also conjectural history, sacred history, stadial history History of Ideas (Ideengeschichte), 267, 274, 276, 277, 282 Hobbes, Thomas, 2, 7, 12, 104, 105, 128–36, 136–55, 157, 159–61, 172–6, 208, 216–20, 225, 227–9, 235, 255, 265, 271, 274, 278 Catalogue of the Hardwick Library, 129, 152 De cive, 133, 159, 173 ‘Elements of Law’, 134 Leviathan, 1, 22, 85, 134, 135, 138–44, 146–8, 152–5, 159, 172–5 translation of Thucydides, The Grecian War, 24, 128–32 Hoekstra, Kinch, 24 Hofer, Walther, 262 Holborn, Hajo, 282 Holland, Philemon, 149 Holocaust, the, 10, 34 Honoré, Tony, 49 Horace, 214 Hotman, François, 18, 55, 64 Howden, Roger of, 72 Hubbard, Benjamin, 141 Huber, Ernst Rudolf, 273 Huguenots, 88, 241 Humboldt, Wilhelm von, 241, 264 Hume, David, 25, 27, 115, 127, 179–82, 184–93, 194, 196, 201–3, 208–10, 217 Humfress, Caroline, 17, 20 Hunt, Henry, 152 Ibn Khaldun, 182 imperialism, 286, 288, 294, 298, 301, 303, 307 imperium, concepts of, 17, 61, 165, 171 merum imperium, 58 summum imperium, 172 India, 32 Indies, 15, 25 industrial revolution, 9 International Congress of the Historical Sciences (1955), 259, 280 International Law, 17, 19, 265, 273, 279, 286, 297 Irnerius, 56 Isaac, 157 Isaiah, Prophet, 163 Islam, 30, 31, 156, 161, 164 Jacob, 157 James VI and I, King of Scotland, England and Ireland, 76, 78, 158

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Index James, C. L. R., 292, 307 Japhet, son of Noah, 26 Jena, battle of, 249 Jerome, Saint, 57 Jewish Emancipation Edict (Prussia, 1812), 249 Johann, Charlotte, 18, 29 John of Scythopolis, 45 Judaism, 157, 161, 232 of Eduard Gans, 249–50 Julian, 55 Julius II, Pope, 151 Justin, Emperor, uncle of Justinian, 46 Justinian, Emperor, 17, 37–53, 54–6, 61, 62 Confession of Faith, 39–40 convenes ‘Conversations with the Syrian Orthodox Bishops’ (532), 44, 47–9 invokes God’s patronage for his Law Books, 40–4 issues Edict and Letters on the Trinity (533), 49 Law Books (Codex, Institutes, Digest), 37–44 Law Books valid for all eternity, 43–4, 51 Kairos, 5, 23, 32, 148–9, 150 Kames, Henry Home, Lord, 27, 179–86, 189–93, 203, 204, 209, 210, 213 Kant, Immanuel, 23, 28, 216–36, 243, 255, 263, 281, 282 Kapila, Shruti, 32 Keckermann, Bartholemew, 91–2, 95, 98, 116, 118–20 Kesting, Hanno, 273 Koran (Qur’an), 164 Koselleck, Reinhart, 4–12, 14, 16, 17, 22, 24, 27–30, 33, 34, 238–40, 257–8, 261, 274–8, 282, 284, 289–93, 295, 298, 299, 307 Koskenniemi, Martti, 17 Lafitau, Joseph-François, 156, 177 language, 211–13 languages of politics, 13–16, 31, 33–5, 275, 289, 306 Lask, Emil, 263 Law discussed by Hobbes, 146–8 Gans’ historical account of, 252–8 Kames on, 182–6 Kant’s theory of, 218–21 Monboddo on legal proof, 209 Savigny’s historical account of, 241–8 temporality and history of, 17–20, 238–41, 257–8 See also Canon Law, Common Law, Feudal Law, International Law, Justinian, Law of Nature, prescription, Roman, or Civil, Law, Reichsrecht Law of Nature, 7, 15, 26, 84–6, 90–3, 96–100, 179, 183, 184, 186, 218, 219, 227, 253, 255, 263

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League of Nations, 271 Leibniz, Gottfried Wilhelm, 23, 223–32, 234–6 Leiden, 88 Leipzig, battle of, 241 Lenin, V. I., 260 Lerminier, Eugène, 237 Lessing, Gotthold Ephraim, 219, 221, 225, 232 Levy, F. J., 125 Liberalism, 262, 270, 271, 282, 293 liberty, concepts of, 121, 124, 185, 222, 261, 274, 277, 280, 290, 294, 295, 302 German, 267 Roman, 12 Linnaeus, Carl, 207, 210 Littleton, Thomas, 69, 70, 80 Livy, 2, 114, 125, 149, 152 Locke, John, 12, 182, 208, 274 London, 126, 142, 211, 252, 297 Lukács, Georg, 271 Luther, Martin, 85 Luxemburg, Rosa, 281 Lycurgus, 254 Macaulay, Thomas Babington, 68 Machiavelli, Niccolò, 1, 23, 102, 105–10, 118, 120, 122, 129, 135, 254, 268, 269, 274, 280 Discourses, 23, 106, 110, 119, 123, 280 The Prince, 23, 150–1 Mackinnon, Emma Stone, 33, 34 Macpherson, David, 187, 188 Magna Carta, 69, 75, 82 Mahomet (Muhammad), the Prophet, 164 Maistre, Joseph de, 256 Maitland, Frederic William, 19, 67–83, 237, 238 Malcolm, Sir Noel, 159 Malvezzi, Virgilio, 151 Mandeville, Bernard, 199 Mannheim, Karl, 259 Marburg, University of, 241 Maritain, Jacques, 260, 280 Marx, Karl, 1, 224, 260, 279 Marxism, 259, 260, 271, 275, 283 Matarellis, Nicholaus de, 61, 66 Mazzini, Giuseppe, 267 Meckstroth, Chris, 23, 28, 34 Medici, Piero de’, 111 Meinecke, Friedrich, 8, 261–4, 266–70, 274–5, 279, 280, 282, 283 Mendelssohn, Moses, 225, 226, 232, 234 Mendès-France, Pierre, 296 Mill, J. S., 260 Millar, John, 179, 182, 186, 188, 191, 201, 203, 204, 209, 213 Milsom, S. F. C., 81, 82 Mirabeau, Victor Riqueti, marquis de, 255

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Index

modern, 7, 8, 13, 15, 24, 25, 38, 53, 60, 61, 82, 84, 106, 159, 197, 207–9, 212, 214, 218, 226, 228, 254, 273, 274, 281, 303, 305 the global modern, 30–3 modern English Law, 68–73 modern history, 10, 13, 257 modern natural law, 12 modern politics, 4, 17 modern revolution, 7, 291, 292, 307 modern state, 12, 236, 239, 252, 254, 270, 275 modern time, 6, 9, 240 postmodern, 10 pre-modern, 24, 30, 293 modernisation, 11 modernity, 6, 5–7, 9–13, 16, 22, 29–35, 132, 197, 275, 284, 285, 289, 291, 307 Molina, Luis de, 94–5 Monboddo, James Burnet, Lord, 27, 182, 190, 192, 196, 207–15 Montesquieu, Charles-Louis de Secondat, baron de, 19, 25, 179, 185, 201, 203, 255 More, Thomas, 1, 254 Morgenthau, Hans, 262, 273 Mortimer, Sarah, 22 Moses, 20, 87, 150, 151, 156, 157, 159, 163, 165–70, 173, 175, 254 Moyn, Samuel, 32 Müller, Adam, 242–4, 256 Napoleon I, 68, 241, 249, 264 Codes of Law, 238, 239, 243, 244, 254 Napoleonic Empire, 238, 241, 246, 257 Napoleonic Wars, 237, 303 National Socialism (Nazi), 29, 271, 273, 274, 277, 284, 295 nationalism, 217, 246, 260, 261, 264–7, 270, 277 natural history, 166, 178, 195, 199, 200, 207 natural history of man, 182, 202, 204, 207, 208, 214 natural law. See Law of Nature Neurath, Constantin von, 242 Noah, 178, 188 Norman Conquest, 68, 75, 76, 81 North Atlantic Treaty Organization (NATO), 297 Novalis (pen-name of Georg Freiherr von Hardenberg), 264 Numbers, Book of, 163 Oakeshott, Michael, 37, 282 Oldenbarneveldt, Jan van, 98, 158 Olivier, Laurent, 5 orang-utan, ideas of the, 204, 210–11

Pagano, Francesco Mario, 178 pagans, 90, 97, 177 Paris, 98, 211, 242 Parliament of England, 76, 184, 193 Paul, the apostle, 157 Paulus de Castro, 62, 65, 66 people, concepts of the, 216–19, 221–6, 235, 247, 264, 273, 297, 304, 305 perfectibility, concepts of, 195, 197–8, 203, 206, 207, 211–15 Persia, 31 Pétain, Philippe, Marshal, 300 Peter, Saint, 86, 92, 93 Philip II, Spanish King, 96 philosophy of history, 7, 260, 290 denied by Carl Schmitt, 272 Kant’s, 219, 227, 230, 236 Physiocrats, 217, 255 Pieper, Joseph, 260 Pius XII, Pope, 259, 280 Plato, 1, 23, 182, 253, 260 Plutarch, 23 Pocock, John G. A., 6, 13–16, 22, 31, 85, 248, 261 The Ancient Constitution and the Feudal Law, 18, 70, 83 Barbarism and Religion, 15 The Machiavellian Moment, 23, 281 poetry, 113, 115–16, 120, 123, 127, 135, 157 politic history, 24, 102–35 political economy, 25 political philosophy, 3, 105, 135, 284 political realism, 3, 35, 262, 280, 283, 284 political science, 88, 132–4, 154, 155, 282 political theory, 3, 34, 35, 283 political thought, history of, 3–4, 33–5, 253, 286 Pollock, Sheldon, 31 Pollock, Sir Frederick, 77 Polybius, 118 polygenism, 180, 193, 203, 210 polytheism, 190–1 Pope, Alexander, 228, 230–5 Pope, Papacy, Papal, 22, 50, 62, 86, 158, 174, 176 Popper, Karl, 260–1 Positivism, 260, 262 Possevino, Antonio, 91 prescription, 145, 183, 185 probabilistic reasoning, 24, 105 progress, concepts of, 7, 185, 186, 210–13, 217, 221, 223, 225, 232, 235, 272, 275, 292, 298, 301, 303, 307 progress of society, 26, 184, 194, 200–1 progress of the arts and sciences, 185 prophecy, 142, 157, 161, 163–6, 168, 172

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Index Prussia, Prussian, 18, 238, 249, 267, 276 Puchta, Georg Friedrich, 247 Pufendorf, Samuel, 183, 218, 225, 227–9, 255 Quintilian, 114–15 race, concepts of, 193, 301 Ralegh, Sir Walter, 104, 116–17 Ranke, Leopold von, 260, 263–5, 267–9 Rawls, John, 1, 3, 262, 282–3 Raylor, Timothy, 134 reason of state, 24, 25, 102, 261, 265, 267–9, 270, 271, 279 Reeves, John, 81 Reformation, 22, 86 Rehberg, August Wilhelm, 242–4 Reichsrecht (Law of the German Empire), 18 Reid, Thomas, 194 Renaissance, 23, 132, 148 republicanism, 235, 280 resistance theory, 88 Revelation, Book of, 22, 36 revolution, concepts of, 5, 7, 9–11, 32, 34, 225, 235, 287, 290–3, 304, 306–7 revolution, instances of. See Algerian, English, French (1789 and 1830), Haitian, industrial, and Russian Revolutions, also Revolutions of 1848 Revolutions of 1848, 265 Richter, Melvin, 16 Rickert, Heinrich, 263 Ricoeur, Paul, 11, 14 rights, languages of, 183, 285–94, 299, 307 human, 15, 32, 274, 279, 285, 294, 296 of man, 15, 288, 296, 302 natural, 15, 28 right to rebel, 288, 307 Ritter, Gerhard, 274 Robertson, John, 192 Robertson, William, 27, 156, 178, 181, 186, 194, 203, 204 Rochau, August Ludwig von, 265 Rohan, Duc de, 152 Roman Empire, 15, 18, 53, 60, 65, 66, 197 Eastern, 20, 37–8 as an eschatological concept, 58 Holy Roman Empire, 18, 58, 59, 62, 237, 238 See also Byzantine Empire Roman, or Civil, Law, 18, 54–66, 71, 74, 253, 254 composition of the Justinianic texts (Codex, Institutes, Digest), 37–44, 247 Corpus iuris civilis, 17, 38, 54, 56–7, 62, 227, 247 kings as exercising imperial power in their kingdoms, 59–61

347

Lex regia, 18, 56–8, 62–6 territory and jurisdiction, 60–1 Romano, Antonella, 30 Romantic movement, 217, 270 Romulus, 149–51 Ross, Ian Simpson, 183 Rossaeus (William Reynolds?), 87, 90 Rousseau, Jean-Jacques, 27, 157, 159, 177, 178, 195, 197–200, 203–7, 209, 212, 213, 218–23, 225, 227, 228, 234–5, 255, 265 Discourse on the Origin of Inequality among Men, also known as the ‘Second Discourse’, 2, 156, 181, 195, 197, 198, 206, 207, 219, 225, 229, 232–4 Royal Academy of Sciences, Berlin, 230 Russian Revolution, 29 Ryan, Magnus, 17, 18, 53 sacred history, 20–3, 26, 65, 84–6, 100–1, 156–78, 193, 198 sacred time, 20–3, 36, 84–101, 139–42, 175 Said, Edward, 289 Saint-Pierre, Charles Irénée Castel, abbé de, 235 Saint-Simon, Claude-Henri, Comte de, 217, 256 Samuel, Prophet, and the Book of, 159, 163 Sanskrit, 31, 32 Sartori, Andrew, 30 Sartre, Jean-Paul, 279 Saul, 21, 140 ‘savage’ peoples, 16, 25, 200, 201, 203–4 Savigny, Friedrich Carl von, 18, 29, 237, 239–58, 263, 264, 273 Savile, Henry, 117 Scaliger, Joseph, 158 Schiller, Friedrich, 264 Schlegel, Friedrich von, 256, 262 Schleiermacher, Friedrich, 264 Schmitt, Carl, 11, 25, 32, 261, 270–6, 278, 280, 282 Scholastics, Scholastic philosophy, 15, 22, 96, 138, 139, 146, 254 Scholastic lawyers, 54, 58, 66 Second Scholastic, 12 Scott, David, 289, 291–3, 307 Scripture. See Bible, Koran (Qur’an) Sebastiani, Silvia, 27, 182 Select Society of Edinburgh, 199 Seneca, 114 Septuagint, 52 Sétif (Algeria), 301, 302 Severus, Bishop of Antioch, 46 Severan Bishops, 47 Sidney, Philip, 24, 105, 115–23, 126, 127 Sieyès, Emmanuel-Joseph, Abbé, 28, 223, 255, 271 Simmel, Georg, 263

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Index

Simon, Richard, 176 Sixtus V, Pope, 86 Skinner, Quentin, 12, 13, 22, 24, 65, 216, 261 slavery, 210, 221, 284 Smart, William, 187 Smith, Adam, 26, 27, 179, 181, 182, 184, 186, 188, 192, 194, 199–201, 203, 204, 209, 213 sociability, concepts of, 196, 198, 202, 207, 211, 228 unsocial sociability, 233 social science, 261, 266 socialism, 217, 266 Society for the Encouragement of Arts, Manufactures and Commerce, 187 society, concepts of, 25–7, 90, 99, 165, 170, 171, 205, 213, 214, 235, 271, 304 civil society, 99, 176, 196, 214 commercial society, 197, 199, 200 Socrates, 116, 253 Solon, 254 sovereign, sovereignty, concepts of, 91, 96, 97, 99, 132, 133, 141, 142, 147–8, 154, 158, 170–5, 216, 218, 220, 223, 224, 226, 235, 238, 246, 261, 266, 270–2, 274, 278, 285, 298, 306 Spelman, Henry, 19 Spencer, John, 168 Spengler, Oswald, 260, 269 Spinoza, Benedict, 21, 157, 159–76, 255 Tractatus theologico–politicus, 21, 159–72 St German, Christopher, 75 stadial history, 26–7, 178, 179–80, 182, 185–6, 189–93, 194–215, 272 Stahl, Georg Ernst, 256 Stalingrad, battle of, 10 state of nature, 93–5, 97, 99, 100, 156, 170, 205, 206, 214, 229, 235 state, concepts of the, 37, 143, 147, 154, 216–20, 223, 226, 235, 239, 252, 254, 256, 265, 267, 268, 270, 271, 273, 275, 278 Statute of Merton, 69, 73 Stein, Lorenz von, 8, 217 Stein, Peter, 246 Stewart, Dugald, 180–1, 194 Stoics, Stoic philosophy, 15 Strasbourg, University of, 267 Strauss, Leo, 260, 280, 282 Suárez, Francisco, 92–5, 97, 99 Tacitus, 2, 15, 24, 102, 109, 116, 117, 125, 130, 150, 152 Tamm, Marek, 5 temporality, varieties of, 2, 5, 8, 17, 24, 27, 33 colonial, 304 and eternity, 138, 140 global, 32 of historical narratives, 14, 127, 272

of modernity, 5, 9–11, 30, 275, 289 of politics, 34, 261 of revolution, 6, 28 of rights, 289, 294 in the Roman Empire, Western and Eastern, 36–8, 52–3 See also time, concepts of Ten Commandments, 85 The Federalist, 28 theodicy, 223, 227, 229–36 Thibaut, Anton Justus, 241, 249, 252 Third Reich, 261 Thomasius, Christian, 227, 228, 255 Thucydides, 2, 3, 23, 104, 125, 128–32, 181, 281 Tiberius, Emperor, 150 Tilak, B. G., 32 time, concepts of, 2, 36, 105, 112, 217, 248, 261 Arendt on public and private time, 280 Christian time, 84–101, 137 Hobbes on, 136–9, 143, 148, 154 Kant on time and politics, 236 legal time, 238–40 Rawls excludes time, then re-admits it, 283 Schmitt’s ‘state of exception’, 273 stadial time, 189–93 See also sacred time, temporality Tocqueville, Alexis de, 7, 29, 217 Touber, Jetze, 160 Toussaint L’Ouverture, 292 Treitschke, Heinrich von, 265–7, 269 Tribonian, 39–42 Trinity, doctrine of the, 17, 39, 41 debated under Justinian, 44–52 Troeltsch, Ernst, 263, 268 Tuck, Richard, 12 Ulpian, 55 United Nations, 294, 297 United Provinces of the Netherlands, 97, 160, 172 United States of America, 262, 273, 276, 284 Universal Declaration of Human Rights (1948), 1, 33, 285, 295, 296 utopia, utopian, 7, 33, 271, 275, 290–3, 306 Vattel, Emer de, 218–20, 222, 225, 228, 229 Vaucher, Paul, 296 Verdun, battle of, 10 Versailles, Treaty of, 271 Vico, Giambattista, 23, 177, 192–3, 263 Vincentius Hispanus, 62 Vindiciae contra tyrannos, 55, 64 Vitoria, Francisco de, 96 Voltaire, François-Marie Arouet, 156, 178, 194, 217, 221, 225

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Index Wallace, Robert, 188 Walsh, W. H., 260 Wansbrough, John, 161, 165, 168 Weimar Republic, 269, 270 Wheatley, Natasha, 6, 17, 239, 258 Wielhorski, Michael, Count, 223 wild children Marie-Angelique Le Blanc, savage girl of Champagne, or Songy, 190, 211 Peter the Wild Boy, 190, 211 William I, the Conqueror, King of England, 76 Wilson, Harold, prime minister, 1, 25 Winckelmann, Johann, 262

Windelband, Wilhelm, 263 Wittgenstein, Ludwig, 13 Wolff, Christian, 218–20, 222, 223, 226, 228–30, 255 Wood, A. W., 234 Woodcock, Francis, 142 World War I, 261, 267 World War II, 293, 295 Wyntoun, Andrew of, 188, 189 Yaqoob, Waseem, 29 Zachariah, Bishop of Mytilene, 47

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