The Circle of Rights Expands: Modern Political Thought after the Reformation, 1521 (Luther) to 1762 (Rousseau) 9780773560284

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T H E C IR CL E O F R IG H T S EX P A N D S

McGill-Queen’s Studies in the History of Ideas Series Editor: Philip J. Cercone 1 Problems of Cartesianism Edited by Thomas M. Lennon, John M. Nicholas, and John W. Davis 2 The Development of the Idea of History in Antiquity Gerald A. Press 3 Claude Buffier and Thomas Reid: Two Common-Sense Philosophers Louise Marcil-Lacoste 4 Schiller, Hegel, and Marx: State, Society, and the Aesthetic Ideal of Ancient Greece Philip J. Kain 5 John Case and Aristotelianism in Renaissance England Charles B. Schmitt 6 Beyond Liberty and Property: The Process of SelfRecognition in EighteenthCentury Political Thought J.A.W. Gunn 7 John Toland: His Methods, Manners, and Mind Stephen H. Daniel 8 Coleridge and the Inspired Word Anthony John Harding

9 The Jena System, 1804–5: Logic and Metaphysics G.W.F. Hegel Translation edited by John W. Burbidge and George di Giovanni Introduction and notes by H.S. Harris 10 Consent, Coercion, and Limit: The Medieval Origins of Parliamentary Democracy Arthur P. Monahan 11 Scottish Common Sense in Germany, 1768–1800: A Contribution to the History of Critical Philosophy Manfred Kuehn 12 Paine and Cobbett: The Transatlantic Connection David A. Wilson 13 Descartes and the Enlightenment Peter A. Schouls 14 Greek Scepticism: Anti-Realist Trends in Ancient Thought Leo Groarke 15 The Irony of Theology and the Nature of Religious Thought Donald Wiebe

16 Form and Transformation: A Study in the Philosophy of Plotinus Frederic M. Schroeder 17 From Personal Duties towards Personal Rights: Late Medieval and Early Modern Political Thought, c.1300-c.1650 Arthur P. Monahan 18 The Main Philosophical Writings and the Novel Allwill Friedrich Heinrich Jacobi Translated and edited by George di Giovanni 19 Kierkegaard as Humanist: Discovering My Self Arnold B. Come 20 Durkheim, Morals and Modernity W. Watts Miller 21 The Career of Toleration: John Locke, Jonas Proast, and After Richard Vernon 22 Dialectic of Love: Platonism in Schiller’s Aesthetics David Pugh 23 History and Memory in Ancient Greece Gordon Shrimpton 24 Kierkegaard as Theologian: Recovering My Self Arnold B. Come

25 Enlightenment and Conservatism in Victorian Scotland: The Career of Sir Archibald Alison Michael Michie 26 The Road to Egdon Heath: The Aesthetics of the Great in Nature Richard Bevis 27 Jena Romanticism and Its Appropriation of Jakob Böhme: Theosophy – Hagiography – Literature Paolo Mayer 28 Enlightenment and Community: Lessing, Abbt, Herder, and the Quest for a German Public Benjamin W. Redekop 29 Jacob Burckhardt and the Crisis of Modernity John R. Hinde 30 The Distant Relation: Time and Identity in SpanishAmerican Fiction Eoin S. Thomson 31 Mr Simson’s Knotty Case: Divinity, Politics, and Due Process in Early EighteenthCentury Scotland Anne Skoczylas

32 Orthodoxy and Enlightenment: George Campbell in the Eighteenth Century Jeffrey M. Suderman

38 The Invention of Journalism Ethics: The Path to Objectivity and Beyond Stephen J.A. Ward

33 Contemplation and Incarnation: The Theology of MarieDominique Chenu Christophe F. Potworowski

39 The Recovery of Wonder The New Freedom and the Asceticism of Power Kenneth L. Schmitz

34 Democratic Legitimacy: Plural Values and Political Power F.M. Barnard 35 Herder on Nationality, Humanity, and History F.M. Barnard 36 Labeling People: French Scholars on Society, Race, and Empire, 1815–1848 Martin S. Staum 37 The Subaltern Appeal to Experience: Self-Identity, Late Modernity, and the Politics of Immediacy Craig Ireland

40 Reason and Self-Enactment in History and Politics Themes and Voices of Modernity F.M. Barnard 41 The More Moderate Side of Joseph de Maistre Views on Political Liberty and Political Economy Cara Camcastle 42 Democratic Society and Human Needs Jeff Noonan 43 The Circle of Rights Expands Modern Political Thought after the Reformation, 1521 (Luther) to 1762 (Rousseau) Arthur P. Monahan

THE CIRCLE OF RIGHTS EXPANDS Modern Political Thought after the Reformation 1521 (Luther) to 1762 (Rousseau)

Arthur P. Monahan

McGill-Queen’s University Press Montreal & Kingston • London • Ithaca

© McGill-Queen’s University Press 2007 isbn 978-0-7735–3208-3 Legal deposit second quarter 2007 Bibliothèque nationale du Québec Printed in Canada on acid-free paper. This book has been published with the help of a grant from St Mary’s University. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Book Publishing Industry Development Program (bpidp) for our publishing activities.

Library and Archives Canada Cataloguing in Publication Monahan, Arthur P., 1928– The circle of rights expands: modern political thought after the Reformation, 1521 (Luther) to 1762 (Rousseau) / Arthur P. Monahan. (McGill-Queen's studies in the history of ideas; 43) Includes bibliographical references and index. ISBN 978-0-7735–3208-3 1. Political science – Europe – History – 17th century. 2. Political science – Europe – History – 18th century. 3. Reformation. 4. Political science – Philosophy. I. Title. II. Series. ja71.m625 2007

320.094'0903

c2006–905432-0

This book was typeset by Interscript in 10/12 Baskerville.

Contents

ix

Acknowledgments 3

Introduction

I Continental Europe in the Reformation Era

13

II Seventeenth-Century England’s Response to the Reformation and Its Aftermath 109 III Back to the Continent: Spinoza and Rousseau 191 Conclusion Index

220

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Acknowledgments

on his death, 3 february 2006, A.P.M. left this book complete except in a number of small details, which I have undertaken to finish up on his behalf. If this constitutes editing the book for publication, it is very light editing, even taking into account the half-dozen places in which I have deleted single sentences that seemed to me redundant or otherwise incongruous, and the two or three more places in which I have changed single words (at one place, putting “expectable” where A.P.M. clearly meant something stronger than “possible”). At one point (Chap. I, 42, text, and note 79), where I could not document the quotation cited by A.P.M., I substituted another quotation with the same import. I have left standing all the important points that, were he still alive, I would dispute with him, though I would be cautious about doing so, deferring to his scholarship, both deeper and more extensive in these matters than mine. In any small additions that I have made I have tried to keep to his language and style. I have tried to fill in bibliographical details where these were missing in the notes and I have checked the notes for anomalies needing resolving, which has been done. In the course of doing these things, I have found reason to rely generally, without checking every one of them, on the accuracy of the notes as A.P.M. left them. A.P.M. also left a bibliography for the book, comparable to the ones included in the previous two volumes of his multi-volume work. However, the bibliographical information included in the notes to the text, which needed only a little in the way of filling out, makes publishing the bibliography otiose, particularly since it omits many things to be found in the notes. The cost of publishing it, which would be substantial, could not be easily justified. Therefore, it has been decided not to publish it. Carol St Clair Monahan, A.P.M.’s widow, has done everything that she could to facilitate the preparation of the text for publication. Carol and

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Acknowledgments

I wish to acknowledge gratefully the substantial assistance with the computer and word-processing, given cheerfully and instantly as in my experience is his wont, by Professor Robert Martin of the Department of Philosophy at Dalhousie. We thank the staff of the Reference Desk at the Killam Library of Dalhousie University, who have been diligent and ingenious in uncovering essential bibliographical information. We are also grateful for the work done on the book by the copy-editor, Joanne Richardson, and the coordinating editor at McGill-Queen’s University Press, Joan McGilvray. Finally, we note with appreciation the benevolent commitment, without which the project could not have gone ahead, of Philip Cercone, editor-in-chief of McGill-Queen’s University Press, to the publication of the book regardless of A.P.M.’s death. David Braybrooke, Halifax, August 2006

T H E C IR CL E O F R IG H T S EX P A N D S

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Introduction

consent, coercion and limit (1987), the first of two earlier volumes in a trilogy of which this is the last unit, examined Western political thinking in the period roughly between 1050 and 1350. There I developed the thesis that medieval political writers, both religious and secular, reflected a basic though not usually well specified principle integral to any rational theory of polity, that the exercise of legitimate authority requires an understanding and acceptance of the concept of “limit.” What today might be called absolute or unlimited authority, thus, is antithetical to a proper conception of legitimate rule. It is tyrannical; and a tyrannical ruler is a contradiction in terms, an oxymoron. Connected with this element of limit was the equally broadly accepted concept of “popular consent.” Though again usually lacking adequate or even clear specification, the general notion nonetheless was accepted that legitimacy of political authority, both ecclesiastical and temporal, entailed some form of acceptance, of consent, from those over whom it was being exercised. Quod omnes tangit ab omnibus tractari et approbari debet: “what touches all should involve and be approved by all.” This dictum of Roman law was cited by the late eleventh century canonist Gratian in his magisterial and highly authoritative Decretum, though he seems not to have quoted it directly from legal sources nor to have acknowledged its Roman provenance. It was accepted universally by medieval canonical writers as a stricture on the legitimacy of all ecclesiastical authority, including papal; and there is good reason to believe that medieval political writers also applied it in some way to the exercise of temporal authority. A direct practical and procedural adjunct to this dictum was that transfer of political authority from one person to another in both ecclesiastical and spiritual jurisdictions – the papacy, religious communities of both men and women, bishoprics – notwithstanding the all too common and centuries-old simoniacal interference from secular rulers, entailed some

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form of choice or election, some procedure whereby all individual members of the community (omnes) “touched” by the authority could participate in its establishment. This is what led me to speak of the medieval origins of parliamentary democracy. The second volume, From Personal Duties towards Personal Rights (1994), developed these themes for the period between c1300 and c1600 with respect to several historical contexts: the development of a theory of legal and political sovereignty and rights to independence in developing citystates from the always anachronistic and ill-conceived notion of the Holy Roman Empire; the development of a conciliar theory of limited and accountable ecclesiastical authority, specifically papal, as a means to resolve the scandal of the Great Schism in the early fifteenth century; the secularization of this theory in the late sixteenth century, specifically by George Buchanan, who described Scotland as an elective monarchy in order to make a case for the forceful removal of the Roman Catholic Queen Anne; and the emergence and articulation among Protestant theologians and publicists of citizens’ rights to resist the imposition of public adherence to traditional Roman Catholicism. Genuinely significant here was their appeal to the traditional medieval rights claim that the imposition upon individual citizens of public uniform religious adherence was tyrannical because it exceeded the limits of legitimate political authority. Claims for such religious rights might arguably be construed as claims for individuals in a civil society, although, in the first instance, such claims were expressed on behalf of minority religious groups. Previously, however, the typical medieval formulation of an individual’s status relative to their community, whether religious or secular, tended to be expressed in terms of duties rather than rights: hence the expression “from duties towards rights.” It should be noted in this connection, however, that Brian Tierney has alerted us to certain twelfth- and thirteenth-century texts indicating some awareness even then of the notion of personal rights.1 The present volume aims to show that the seventeenth and eighteenth centuries continue to exhibit these notions, however guardedly, 1 Brien Tierney, “Conciliarism, Corporatism, and Individualism: The Doctrine of Individual Rights,” in Gerson, Cristianesium nella storia 9 (1988), 81–111; “‘Ius dictum est a jure possidendi’: Law and Rights in Decretales 5.40.12,” in Diane Wood, ed., The Church and Sovereignty (Oxford: Blackwell, 1991); “Marsilius on Rights,” Journal of the History of Ideas 52 (1991): 3–17; “Origins of Natural Rights Language: Texts and Contexts, 1150–1250,” History of Political Thought 11 (1990): 1–32; Religion, Law and Constitutionalist Thought, 1150–1650 (Cambridge: Cambridge University Press, 1982); “Villey, Ockham and the Origin of Individual Rights,” in T. Witte and F.S. Alexander, eds. The Weightier Matters of the Law. A Tribute to Harold J. Berman (Atlanta: University of Georgia Press, 1988).

Introduction

5

and to show also a development and expansion of explicit personal rights as they apply specifically to individuals: not only the right to personal self-defence against tyranny and the right to individual religious dissent as now expressed explicitly but also the personal right to property and to individual economic and social well-being. A word or two, then, concerning the continuity between the present volume and its predecessor, From Duties towards Rights. The earlier work was originally conceived as an examination of Western political thought from roughly the early fifteenth to the late eighteenth centuries – a single companion volume to Consent, Coercion and Limit. Editorial and publishing realities, however, determined that a single volume devoted to a chronological period of some four centuries would be too large to be practicable. Accordingly, the material was divided into two volumes. The first volume, From Duties towards Rights, deals roughly with the fifteenth and sixteenth centuries, while the second, the present work, deals with post-Reformation thought both in England and on the Continent, extending to the late eighteenth century but omitting the American and French Revolutions. As well, the present volume returns to the late sixteenth century to cover two “scientific” and, therefore, arguably modern political thinkers of that era: Bodin and Althusius. It also examines the origins of early Reformation thought on religious toleration, a right extended by the state allowing an individual to dissent from any official state religion.2 2 I make no distinction between religious toleration and freedom of conscience, inasmuch as Western political thought in general now accepts that the appropriately secular character of the state precludes any legitimate political interference with the personal religious beliefs and practices of individual citizens, pace only circumstances where individual religious practices represent a danger to other citizens or to the well-being of the state as a whole. An interesting and instructive historical footnote to this view, however, is Kant’s precise rejection of this elision of toleration with freedom of conscience. Referring to the concept of tolerance as “a haughty name,” he reserved the term for political conditions in which political authority – he had monarchy (“a prince”) in mind as the paradigm case here – graciously extended the privilege to citizens rather than acknowledge the freedom to practice one’s own religion as a personal right that could not be interfered with in any circumstances: “A prince who considers … it to be his duty to prescribe nothing to men in religious matters but to give them complete freedom while renouncing the haughty name of tolerance, is himself enlightened and deserves to be esteemed by the grateful world and posterity as the first, at least from the side of government, who divested the human race of its tutelage and left each man free to make use of his reason in matters of conscience.” See Immanuel Kant, “What Is Enlightenment?” in The Foundations of the Metaphysics of Morals (New York: Macmillan, 1990), 88.

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The material here and in the previous volume does not easily submit to being organized in a way that shows unequivocally the existence of what I refer to as core concepts in political thinking. Indeed, the emphasis in our present period on yet another key and clearly “modern” notion, that of “sovereignty,” by such thinkers as Bodin, Grotius, Pufendorf, and Hobbes will illustrate a general modern view that tends to overshadow, though never completely, the features of the right of individual consent to be governed and the limits of legitimate authority. For its part, moreover, the notion of “coercion” continued to make ideological mischief whenever it was given the essentially simpleminded early fourteenth-century Marsilian assessment that it was the only integral, and therefore unique, feature of legitimate positive law. As I showed in From Duties towards Rights, this was anguishingly true for early Protestant Reformist theological and political thought of both Lutheran and Calvinist forms, especially when construed with the view that all political authority, even tyranny, must be accepted as a divine providential dispensation. And, as we shall see, it also bedevilled the modern sovereigntist theories of Bodin, Grotius, Pufendorf, and Hobbes. As well, the thorniest problem in Christian medieval political theory remained: how to explain that a human individual whose religious status as a spiritual person transcending any secular state could be concurrently subject to political authority. Given the authoritative Christian Gospel advice “to render to Caesar the things that are Caesar’s, and to God the things that are God’s,” a simple formula was available. But the formula manifestly failed to explain its contrasting advice. Nor did it explain how humans could exist in two distinct but intermingled spheres; and it did not map the interface between them. This Gospel injunction found simple and practical, if negative, expression during the Roman imperial persecutions when refusal to submit to laws and policies that Christians saw as incompatible with their religious beliefs led to an age of martyrs. Somewhat later Augustine’s “two cities” conceit, coupled with his explicit view that the legitimacy of temporal authority rested in a divine providential plan that accommodated even political coercion as a practical necessity, did little to clarify the original scriptural insight or to ease its acceptance. The basic church/state dichotomy was acknowledged; but its meaning was only loosely explored. More to the point, the attribution to political rulers of providential powers connected to the eternal salvation of their subjects implied a denial of the distinction. To complicate conceptual matters still further, there had been a centurieslong development of the vague and frequently confused notion of Christendom, wherein the delineation between what was God’s and what was Caesar’s became even more mysterious.

Introduction

7

As we move into the seventeenth century with the present volume, the individual rights to be treated are three in number: (1) the general right to resist political authority adjudged tyrannical (procedural details concerning how such judgment might legitimately be made, however, remain surrounded by a fog of ambiguity and sometimes even apparent contradiction, awaiting the insightful clarifications of John Locke); (2) a citizen’s right freely to practise a form of religion other than that approved by current political authority (again, advances here will be seen to be made courageously by Locke); and (3) an individual’s right to property, initially including jurisdiction over one’s physical person but extending, by Aristotelian deductive reasoning, to include the possession of material property (Locke again). Details of variously presented theories of property show, however, that in some cases advocates of the traditional medieval theory of polity (Suárez) as well as proponents of modern humanist theories rejecting the traditional notion of natural law as controlling the legitimacy of positive law (Selden) went so far as to suggest that individuals could even alienate their own right to life. And, as already mentioned and as the present text shows, the new modern emphasis on sovereignty in the two centuries under review tends to overshadow the elements of consent and limit in some theories of polity. The emphasis on sovereignty as the cornerstone of a viable theory of polity, the identifiably modern thrust of the new views, can be construed to deny any ultimately legitimate authority to the people. And it is worth noting in this connection that contemporary advocates of such a theory of sovereignty who continue to insist on a positivist theory of law have only very recently begun to admit the concept of popular consent back into their theories of polity. A striking feature in the rapidly increasing number of political writings in our period, and one that marks the genuine beginnings of the modern period in political thinking, is the conscious effort many authors made to shape their material into what they consciously sought out as a scientific frame of reference. Not surprisingly, a variety of meanings for “scientific” can be detected here, none corresponding exactly to the conventional contemporary notion of science as exclusively grounded in the empirical. This is not to say that seventeenth-century notions of science ignored empirical data, only that none of them forced the simple dichotomy between inductive and deductive methodologies that characterizes many contemporary theories of knowledge and validation. One might suggest that inadequacies perceived in such a simple dichotomy by postmodern and feminist critics of traditional, or foundational, epistemology were also expressed, though indirectly, in these early modern notions of what is meant by “scientific.”

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There was, for example, the stultifying sixteenth-century effort by Althusius to apply the Aristotelian notion of deductive science to the new science of politics. Althusius is included here because of his fearsome expression, emphasizing form over matter, of the traditional Aristotelian classical view of science, of which politics is an integral part. He is also included for his well-articulated and logically consistent application of the medieval notion of subsidiarity, according to which all forms of political groupings and institutions rest on the individual citizen, the integral unit in any polity, and, thereby, must conform their jurisdictional authority to promoting this good in ways in which individuals cannot do on their own. As well, I consider the efforts of Bodin, Grotius, and Selden (among others) to ground an empirical science of politics on factual evidence derived from sources that would not meet today’s criteria for acceptable empirical scientific argumentation: travellers’ and explorers’ accounts from past and present, statements from classical and medieval philosophical and literary texts, and descriptions of polities and legal systems of the then known world gleaned from presumed current authoritative sources. There is also Hobbes’s theory of polity, which he adduced from his self-consciously proclaimed “new” scientific (i.e., mechanistic) conception of human nature. And there is a relatively unique theory of polity, not to be duplicated before Hegel’s early nineteenth-century effort (even though Kant had adopted the same general methodological approach several decades earlier): Spinoza’s effort to follow Aristotle in setting out a comprehensive science of reality, one of whose integral elements is political. The way in which Spinoza presents his views on politics reflects the traditional Aristotelian conception of the unity and interdependence of the various branches of science rather than any particular innovations regarding the notions of consent and limit. And this is what gives the great Dutch philosopher a place in this volume, even though his inclusion is anachronistic. Another feature of some, but by no means all, the material treated here is the tendency, following the recognition of the modernity of Machiavelli, to treat politics and political theory in a realistic manner (raison d’état), “to tell it like it is (and should be?)” rather than continuing the medieval “mirror of princes” tradition that linked the account of how political authority should be exercised with Christian moral teaching. The new model was patterned on and presented in descriptive terms recounting historically successful regimes and identifying the “virtues” that actually brought practical success, indicating, where necessary, the disparity between political and traditional Christian moral virtues.

Introduction

9

Many of today’s political thinkers and commentators consider this perspective to be modern in the sense that politics here achieves the status of social science on an empirical model, at least to the extent that its contents are descriptive rather than normative. This is the conventional, if somewhat vacuous, stance of much of Western contemporary social science, which reflects, at second remove, several contemporary and now discredited philosophical attitudes: for example, moral theory viewed as relativistic insofar as ethical absolutism failed to survive Nietzsche’s “God is dead” rhetoric, and analytic philosophy’s insistence that it is not possible to derive an “ought” from an “is.” This emphasis on science and the proper implementation of scientific methodology was reflective of both the seventeenth-century Cartesian approach to philosophy (which was considered new and modern by virtually all its contemporary and later assessors, who measured it against medieval scholastic thought, with which it was acknowledged to have broken permanently) and of the empirically based physical sciences to which Cartesianism gave tremendous if surprising impetus, and where again one sees a clear rejection of medieval scholastic ideology (specifically, an abandonment of Aristotelian natural philosophy). Novelty in both philosophy and the natural sciences thus stimulated the exploration of new paths in political theorizing as well as in other traditional disciplines. Behind much, if not virtually all, the activity in seventeenth-century political thinking and writing, however, were the new post-Reformation political and social realities, showing once more, and more conclusively than might have been evident in earlier periods, that political discourse of even an apparently impersonal and disinterested form is normally a secondary, subsidiary, subordinate intellectual enterprise motivated more by the need to justify or criticize current political activities and movements than to formulate merely abstract theories. Nowhere was this more evident, as we shall see, than in the writings produced in the enervating and embroiling atmosphere of the English civil war period and in the succeeding Commonwealth and monarchical restoration. Two of the English-speaking world’s most important and most influential political writings, Hobbes’s Leviathan and Locke’s Second Treatise of Government, are products of England’s political literary flowering at this time, as are the in many ways prophetic writings of the English Levellers and Diggers of the same period. A third feature detectable in a number of political writings of this period and not previously seen in comparable medieval and renaissance treatises is a specific normative assessment of the social and economic

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elements in the various European nation-states; and it is here again that the circle of rights can be seen to expand. This is not to say that these aspects went entirely unexamined in classical and medieval political theories, much less that each of the political thinkers treated here had specific and significant things to say about them. But the attention paid these matters in earlier works was often minimal and inconsequential, containing little or nothing in the way of critical analysis of contemporary conditions. The revolutionary contributions to English seventeenth-century political thinking produced a significant change in this regard, however, and alongside (and closely interwoven with) calls for new forms to accommodate the political rights and freedoms of individual citizens one begins to hear an insistence on citizens’ rights to an adequate measure of social and economic assets, with a corresponding rejection of at least the more outrageous forms of social and economic disparities. As might be expected, there was anything but unanimity among writers of the period as regards even mentioning these aspects of community life; and some, such as Locke, who in the English tradition did allude at least indirectly to the social and economic features of a polity, were quite content to see the survival of the social and economic status quo. Yet calls for social and economic reforms do begin to surface at this time, along with demands for reform in political structures. Arguably, it was calls for social and economic reform, combined with their advocacy of a form of universal manhood suffrage, with which the former was inextricably linked, that led to the failure of the Leveller and Digger movements in England in the late 1640s. And certainly Rousseau’s ill-argued but explicit insistence on extending the notion of equality across social and economic as well as political lines, views that can also be seen less forcefully and more ambiguously in the Encyclopedists, resulted in his being considered treasonous in the France of Louis xvi. The issues of doctrinal continuity and influence on present-day thinkers from the political doctrines of this period, not to speak of the previously addressed thesis of continuity with earlier medieval thought, remain a much-bedevilled problem, even though writers like Bodin, Grotius, Pufendorf, Hobbes, and Locke are universally acknowledged as modern, at least insofar as they lie on the near side of the chronological divide between modern and medieval thought patterns, while the first three – Bodin, Pufendorf, and Hobbes (as well as Grotius) – are often associated, in their views on sovereignty and implied absolutism, with a discontinuity with medieval constitutionalist

Introduction

11

thought.3 But what is still seen to distance these thinkers from contemporary political theory is a kind of unholy mix of disparate if not contradictory elements, as well, perhaps, as their positions on one side or another of the political conflicts of their own time, on the basis of which they are susceptible to the charge of being so personally parti pris as to lack objectivity. Furthermore, their positions often contain so much intellectual bric-à-brac from outmoded and arbitrary assumptions that they lack adequate intellectual substance. Indeed, the major writers in this period were engaged in one way or another with the political and social realities of their time. John Locke participated directly in treasonous activities against Charles ii of England, activities that forced both him and his employer, the Earl of Shaftesbury, to flee to the Continent, while Locke’s fellow political essayist and sometime friend, Algernon Sidney, actually lost his head to the public executioner. Bodin was incarcerated in his native France for holding religious and political views that ran counter to the political authorities of his day, as was Grotius in Holland in 1619; and Hobbes, who unsuccessfully sought election to Parliament in 1640 in order to defend the monarchy, found it prudent to flee to France to avoid the impending civil war. Political activists and writers like John Lilburne and Richard Overton, moreover, spent much of their public and professional lives in prison for agitating against their political masters. 3 In his recent study on late sixteenth- and seventeenth-century political thought Richard Tuck makes the case that the genuinely modern character of the writings in this period is seen first in Grotius, whom he terms “the pivotal figure … in the construction of two theories … of fundamental importance for the next two and a half or three centuries … the development of a theory of republican liberty appropriate to the post-Tacitean age, and to the circumstances of an imperialist republic, his native United Provinces … [and] the construction of a comprehensive post-sceptical moral science.” See Tuck, Philosophy and Government, 154. He argues that, beginning with Grotius and followed by Selden, Pufendorf, and Hobbes, modern political theory rejected the constitutionalism found in medieval Roman Catholic and sixteenth-century Protestant resistancetype writings in favour of “modern, instrumental and often unscrupulous politics” whose roots can be found in the late sixteenth-century raison d’état views, themselves grounded in the Tacitean scepticism of late Renaissance humanist writers. The result was “a remarkable transformation into the great natural law theories of the mid-[i.e. seventeenth] century.” See Richard Tuck, Philosophy and Government, 1572–-1651 (Cambridge: Cambridge University Press, 1993), xii-xvi. cf. my Conclusion, infra, 221.

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The material in this volume is organized chronologically into parts and sections. As already indicated, Part 1 begins with a discussion of sixteenth-century calls for religious toleration in various European states enmeshed in civil military conflicts that had their origin in the Protestant Reformation; and it continues with an examination of the four greatest European political thinkers of the sixteenth and seventeenth centuries: Jean Bodin, Johannes Althusius, Hugo Grotius, and Samuel Pufendorf. On chronological grounds the first two should arguably have been discussed in the volume devoted to sixteenth-century political thought; however, as already noted, they are presented here so that their views may be set within the general context of the new scientific political thought. Part 2 moves the scene to seventeenth-century England, where the focus of interest and stimulus for major exercises in political thinking was the 1640s civil wars and their aftermath. The centrepieces here are the great works of Thomas Hobbes and John Locke, but attention is also paid to the radical political thinking of the Leveller and Digger movements of mid-century, and to the Grotius-inspired early seventeenthcentury jurist and political thinker John Selden. Part 3 goes back to continental Europe with sections treating, specifically, the great Dutch philosopher Spinoza and Jean-Jacques Rousseau. Arguably, to single out Rousseau’s thought as paving the way towards France’s late eighteenth-century revolutionary paroxysms is to focus narrowly on only one critic of the French monarchical regime when, in fact, there were many such critics. The Physiocrats were uncompromising natural rights theorists; and it was Barbeyrac whose French translations of Grotius and Pufendorf introduced their doctrines to the land of Louis xvi. The Philosophes, too, were advocates of the natural rights tradition, and in the opinion of many of them Rousseau’s political ideas were peculiar. Yet it is precisely this oddly articulated Rousseauean position that makes him such an interesting forerunner of the French Revolution, and it is the reason for his being examined here. The material chosen is highly selective, then, rather than covering a comprehensive array of the totality of English and continental political thought. It is hoped, however, that no apology is needed for such selectivity; nor, except for the practical rationale offered in this introduction, will one be offered.

I

Continental Europe in the Reformation Era

r e l i g i o u s to l e r a t i o n d e v e l o p s a s a c o n c e p t one important feature of Western political thought that had its origins in the early Reformation period (particularly in the run-up to and events of the French wars of religion in the 1560s and 1570s), even though the principles it embodied took several centuries to receive even marginal practical implementation, was the notion that political unity need not entail religious uniformity. Regrettably, however, as with so many other features of an adequate theory of polity, while the concept of toleration expressed in the mid-sixteenth century owed more to actual political circumstances than to abstract political theorizing, it enjoyed little acceptance in the concrete circumstances of the period when its formulation was first enunciated. The doctrinal and institutional unity of Christianity in medieval Western Europe dictated that religious heterodoxy in either doctrinal expression or ecclesiastical practice was both minimal and immediately subject to rejection and suppression by spiritual and temporal authorities. 1 The only large-scale exceptions were the socalled “Greek” Christian Church centred in Constantinople, officially schismatic by Roman standards by the mid-ninth century after Rome’s failure to secure doctrinal uniformity from its patriarch Photius, 2 and Islam, with which the western Christian states had entered into military conflict on expressly theological grounds during 1 See Gordon Leff, Heresy in the Middle Ages: The Relation of Heterodoxy to Dissent c1250–c1450, 2 vols. (Manchester: Manchester University Press, 1967). 2 See F. Dvornik, The Photian Schism: History and Legends (London: Cambridge University Press, 1948; rpt. 1970).

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the Crusades, which began in the late eleventh century and continued fitfully over the next several hundred years. 3 In both these cases, however, actual contact with the theologically “other” never involved addressing the problem of religious heterodoxy as internal to a European Christian nation-state. A qualification is in order here, however, regarding the situation in the Iberian peninsula in the later 1400s, where conflict existed between Christian and Muslim rulers until Ferdinand and Isabella captured the Muslim emirate of Granada in 1492. Until this time, however, there could not be said to have been a really unified Spanish nation-state. The same was true of sixteenth-century European expansion into the Americas and Africa: even when technically accepting and identifying conquered “Indians” and “Ethiopians” as subjects, their geographical habitat overseas meant that their heathen religions did not intrude as a practical concern for the imperialist nation. The major factual issue affecting the assumed need for internal religious uniformity among Western European states in the Middle Ages concerned members of the Jewish faith and the occasional Muslim; but here the numbers in any country, region, or urban community were always small and represented no threat to political authority. Their existence was even seen to encourage persecution of their religious and cultural otherness on often speciously trumped up political, economic, and social grounds that have yet to disappear completely from so-called Christian nations.4 The swift spread of Reformation thought and its virtually instantaneous acceptance by large numbers of citizens in most of the countries of Western Europe, however, produced immediate practical problems for temporal rulers accustomed to accepting the notion of “one faith, one law, one king.” And however obviously this formula entailed the need to suppress the Reformers’ heterodoxy, both the force required to do so and the potential consequences for dividing rather than unifying gave many ground for pause. Not unnaturally, one early response among both political authorities and political thinkers alike was to examine the 3 A standard history of the Crusades is still Sir James Cochran Stevenson Runciman, A History of the Crusades, 3 vols. (Cambridge: Cambridge University Press, 1951–54). Cf. Carl Erdmann, The Origins of the Idea of Crusade (Princeton, NJ: Princeton University Press, 1977); Maureen Purcell, Papal Crusading Policy (Leiden: E.J. Brill, 1975); James A. Brundage, Medieval Canon Law and the Crusades (Madison: University of Wisconsin Press, 1969); Michel Villey, La Croisade: Essai sur la formation d’une théorie juridique (Paris: J. Vrin, 1942). 4 Cf. Salo Wittmeyer Baron, A Social and Religious History of the Jews, vol. 9: “Under Church and Empire,” 2nd ed. (New York: Columbia University Press, 1965).

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possibilities of preserving Christian doctrinal and political unity by accommodating the Reformist views in a broadened and appropriately modified Christian Church: remove the institutional defects and malpractices of the late medieval Church, which had engaged the attention of its critics without significant result for more than a hundred years, and produce a reformulation of theology sufficiently broadened and purified, or “reformed,” to offer a new expression of orthodoxy that would accommodate as many as possible of the doctrinal formulations of Luther and other mainline Reformers.5 As might be expected, a leading role in expressing such views was taken by humanists like Erasmus who, while not prepared to reject wholesale the traditional Christian theology and ecclesiology, were nonetheless more than eager to support considerable transformation of the institutional Church in both doctrine and practice. Accompanying this generally syncretist and reductionist attitude towards accommodating the Reformers’ theology and demands for institutional changes in the Church was a deeply felt attitude among the humanist group that reasonable, not coercive, means should be used to restore Christian unity. It should be remembered in this connection that serious incipient and even long-standing divisions had been overcome earlier through conciliar and other procedures that had kept the Western medieval Church officially unified. And for a time both Luther and Calvin were prepared to present their claims to conciliar adjudication, although their willingness to submit their reformist views to such adjudication rested substantially on a conviction that this ecclesiastical forum would sustain their criticisms and call for precisely the “anti-Roman” reforms they advocated. As was soon to be evident, however, any path of compromise or would-be accommodation that would have accepted both institutional reform and new doctrinal formulations had little appeal, either to the spiritual and lay leaders of the contemporary Church or to the Reformers themselves, whose success in attracting followers reinforced their convictions about the nature of “true” Christianity and made them unwilling to settle for anything but complete rejection of the traditional “idolatrous” doctrines and practices of the Church of Rome. It was evident as early as 1521, for example, that while Luther still conceded the possibility of a conciliar procedure for reforming the Church, he assumed that such a gathering would confirm the rightness of his position. In the event no general church council 5 See Arthur P. Monahan, From Personal Duties towards Personal Rights, Late Medieval and Early Modern Political Thought 1300–1600 (Montreal: McGill-Queen’s University Press, 1994), 184–94.

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was convened at the time, and it seems clear that differing expectations about such a general council’s function and outcome would have doomed such a gathering even before it sat: humanist and other reform-minded adherents to the traditional Church would have been agreeable in some sense a priori to loosening old doctrinal formulae and implementing genuine reforms in ecclesiology, policies, and practices that they would have expected to result in the dissidents “returning to the fold.” But the Reformers would have insisted on replacing the idolatry of Rome with their perception of the original facts and truth of Christianity. An actual example of the futility of compromise efforts between supporters of the traditional Church and Reformers was the failure of efforts set in motion largely by Catholic protagonists and authorities in the run-up to the tragic conflict between French Catholics and Huguenots several decades later. Neither side was really prepared to make the concessions necessary to forestall physical and military confrontation because each side viewed compromise as capitulation to opponents whom it hoped to defeat. The agreement sought by supporters of the traditional Church would have entailed acceptance of the authority of Rome with some agreed-to reforms, while the Reformers expected their position to become the universally accepted Christian orthodoxy. Specific Reformer arguments and requests to be allowed to preach and practise their own religious convictions, moreover, did not entail what we understand today as toleration for divergent religious convictions. As well as those who supported the traditional orthodox Catholic position, Luther, Calvin, and the English, Scottish, and Dutch Protestant church authorities all refused to grant the free practice of anything but their specific brand of Christianity in the temporal jurisdictions in which they held sway. From the beginning of the Lutheran proclamation of the Reformed religion both secular and ecclesiastical French authorities called for suppression of this latest heresy, and the University of Paris, represented by the fanaticism of someone like Noel Beda, was particularly direct and harsh on this score, with similar views being echoed on the Reformer side in 1525 by François Lambert d’Avignon: “I have no doubt that princes are entitled by the law of Deuteronomy, which has never been revoked, to kill anyone obstinate enough to want to turn their people away from the immaculate word of God towards the sacrilegious decrees of the pope and other human inventions. They have the sword.”6 Nonetheless, and though not largely accepted, there were 6 François Lambert d’Avignon, Farrago omnium fere theologicarum (Strasbourg: 1525), 6, fol. 144. Cf. P. Imbart de la Tour, Les Origines de la Réforme, 4 vols. (Paris: 1905; 2nd ed. of vol. 1: 1944; vol. 2: 1948), 3:499–500.

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also calls to use something other than force to deal with the Reformers. Jean du Bellay, bishop of Paris, and his diplomat brother Guillaume, lord of Langey, who were advisors to the French king, urged negotiations with the Reformist German princes over both political and religious issues in 1533, and the latter had inconclusive diplomatic contact with the Zwinglians in Zurich the following year.7 One French humanist strongly inclined to a policy of conciliation with the Reformers as official repression reached its strongest point in the mid-1550s, and the situation began to move more and more towards civil violence and bloodshed, was Guillaume Postel (c.1510–81). Gifted in languages, he had studied Hebrew as well as Latin and Greek and several modern languages at the college of Sainte Barbe, and he had learned some Arabic as a member of the Jean de la Forêt mission to the sultan of Turkey in 1535. Subsequently a faculty member at what was to become the Collège de France and briefly a member of the newly founded (1540) Society of Jesus, Postel published his De orbis terrae concordia in 1544. This was a massive treatise in four books urging Christianity to express a new and broader doctrinal unity under which mutual tolerance of the presently antagonistic dogmatic formulations could all be accommodated. In sum he offered a simplified form of Christian doctrine, Persuasionum omnium canones communes, acceptable, in his view, on rational grounds to all persons of good will, who should agree on these essential truths and refrain from persecuting one another in the name of religious truth. He published a second work anonymously several years later (1547) under the title Panthenosia, and he sent it to the recently convened Council of Trent as a blueprint for the restoration of Christian unity along the lines previously set down in the De orbis. The Panthenosia ended with the plea: stem, o Fathers, this flood of maledictions and imprecations against your brethren. They possess the zeal of God and God alone is judge of that. Stop, you brethren of the north, that intemperate cursing, and consider that you, too, are men … Let everyone among you live according to their own custom until Christ has granted unity to all by setting a term to that discord which is wont to display itself in the sacred ceremonies … Let there henceforth be no more papists, nor Lutherans, let us all take the name of Jesus from whom we expect salvation. Let us all be 7 Joseph Lecler, Toleration and the Reformation, trans. T.L. Westow, 2 vols. (London: Longmans, 1960), 2:16–17. In need of a more ecumenical reworking, this is still the standard treatment of toleration in the sixteenth century; cf. E.M. Beame, “The Limits of Toleration in Sixteenth Century France,” Studies in the Renaissance 13 (1966): 230–65.

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disciples of Jesus; we shall then want to have for our friends Jews and Ismaelites (and will even give them that name) and in the end the whole of humankind.8

Another advocate of conciliation between Catholic and Huguenot factions in France was Michel de L’Hôpital, who was named chancellor of France in 1560. Born in Auvergne early in the century, L’Hôpital was a humanist in the Erasmian tradition who had earned a fine reputation as jurist and financial magistrate before assuming the chief civil service office in France at a time when official efforts to suppress the Huguenots were meeting with a violent and effective reaction from their intended victims. Though he began in office with the attitude that religious unity was essential to political unity, he recognized that the use of force in trying to reestablish it was tearing his country apart; and he quickly came round to the view that toleration of religious differences was the only practical solution to civil discord. Speaking at the opening of the Estates General in Orléans on 13 December 1560, L’Hôpital still based his position on the traditional requirement of “one faith, one law, one king,” but he asserted that it was folly “to hope for peace, repose and amity between people of different religions [and called for an end to] the names of Lutherans, Huguenots and Papists,” as Postel had done more than a decade earlier. And he went on to urge that the goal of religious unity be pursued by using only “words and persuasion [inasmuch as] we [Christians] differ from the heathen who use force and compulsion … they argue in vain who take up arms for God’s cause, because God’s cause does not need to be defended by arms: ‘Put your sword in its scabbard’ [Matt. 26:52]. Our religion was neither started nor maintained nor preserved by armed force.”9 In an opening address to the parlements assembled at St. Germain two years later (3 January 1562), however, L’Hôpital showed that he had forsaken the view that French national unity depended on all 8 Guillaume Postel, “Panthenosia,” cited in M.J. Kvacala, “Wilhelm Postel, seine Geistesart und sein Reformgedanken,” Archiv für Reformationgeschichte 9 (1911–1912): 287–330; 11 (1914): 200–27; 15 (1918): 157–203, cited in Lecler, Toleration, 2:37–38. As Lecler notes, the date of this Postel work places him among the forerunners of the group of politiques who came to prominence during the reign of Charles IX in the early 1560s, and whose principal spokesperson was Michel de L’Hôpital: ibid. 9 Michel de L’Hôpital, “Harangue à l’ouverture de la session des Etats-Généraux assemblée à l’Orléans [13 decembre 1560],” in Oeuvres complètes de Michel l’Hôpital, ed. P.J.S. Dufey, 3 vols. (Paris: 1824–25), 1:375–411.

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citizens conforming to Catholicism, and he accepted the idea that religious divisions actually threatened the state unless some form of toleration could be established: Those who would advise the king to choose one side might as well tell him to take up arms in order to put one set of members to fighting with the other, to the destruction of the body … Besides, no one would deny that the victory would be ruinous, whichever side gained it; he who is impartial and conducts himself without passion is the one who decides on and follows the best way.10

In the interval between these two speeches L’Hôpital had had the opportunity to see the bleak prospects of any reconciliation between Catholics and Reformers reflected in the proceedings of the Colloquy of Poissy (9 September – 14 October 1561), a high-level conference convoked in the presence of the ten-year-old Charles ix and his mother the Queen Regent, Catherine de Medici, that brought together the highest ranking French Catholic ecclesiastics as well as a representative of the pope to discuss theology and other ecclesiological matters with Reformist authorities, among whom were Théodore Beza and Peter Martyr Vermigli. Advocacy of the form of toleration favoured by L’Hôpital in 1562 had actually been urged at the Orléans meeting of the Estates General by Jacques Bienassis, vicar general for the diocese of Tours and abbot of Bois Aubry, when he gave reasons to a meeting of the clerical estate why at least some type of freedom of worship should be granted to the Huguenots. Expanding on L’Hôpital’s point that physical coercion was not an appropriate method for achieving religious unity, he conceded: I am well aware that many of you think it wrong to tolerate two religions in one kingdom, and in truth it could be wished that there were only one, provided it were the true religion … But since the ignorance of man is such that people reach different conclusions, and that each one believes and has special reasons for believing that he possesses the true religion, we are bound in this entanglement to wait until God in His goodness takes a hand and dispels that ignorance … there is no sense in wanting to use force in matters of conscience and religion, because conscience is like the palm of the hand: the more it is pressed the more it resists, and lets itself be ordered only by reason and good advice.11 10 L’Hôpital, “Harangue à l’assemblée des Etats-Généraux à St. Germain-enLaye [January 1562],” in Oeuvres, 1:441–58. Lecler resolved a problem regarding the correct dating of this speech: Lecler, Toleration, 2:69 and note 4. 11 Jacques Bienassis, “Harangue,” in Des Etats-Généraux, 12:234, cited in Lecler, Toleration, 2:47 and note 3.

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One more expression of mid-sixteenth-century toleration can be seen in an anonymous pamphlet, Exhortation aux princes (1561), the work of a Catholic and the first of a series of publications urging toleration of religious differences as the only sound basis for preserving the unity of the French state. This document did not base its argument only on the value of the national interest, however, but also on the sanctity of the individual conscience, an idea that was shortly to be made the ground for religious toleration by the forerunner of liberal Protestantism, Sebastian Castellio, and pursued assiduously and with appreciable effect by later advocates of toleration, including John Locke.12 The Exhortation expresses the point strongly: I am not speaking for the Protestants; I am but a humble citizen who respects and fears God … After God my whole ambition is directed towards the general peace, the maintenance of our king in his greatness and the preservation of us all in your States and honorable functions. For God’s sake, my lords, do not force our consciences at the point of a sword … we all adore and worship one and the same God, if not in the same way at least with the same zeal; let us love and cherish our neighbour in one and the same commandment.13

Finally, there was also Castellio’s Conseil à la France désolée (1562). Its author was an Italian Protestant from Saint-Martin-de-Fresne, near Mantua, who had followed a humanist form of education in Lyons, had converted to Calvinism, and had become principal of the college at Geneva a few months before Calvin returned there in triumph in 1541. His views apparently did not correspond adequately with those of the Genevan Reformer, however, and the two became adversaries even before Castellio left Geneva to take up an appointment as professor of Greek at the University of Basle. Castellio criticized Calvin directly in an ill-concealed anonymous Traité des hérétiques (1554) à propos the burning of Servetus in Geneva; and his statements in favour of toleration had appeared as early as 1551 in a Latin translation of the Bible dedicated to the young Edward VI of England: they were repeated in greater detail and fervor in the Conseil.14 12 See infra, 185-90. 13 “Exhortation aux Princes et Seigneurs du Conseil privé du Roy, pour obvier aux seditions qui semblent nous menacer pour le fait de la Religion,” in Mémoires de Condé, 2:613–36. 14 Castellio’s treatise on heretics is available in English. See S. Castellio, Concerning Heretics, tr. R. Bainton (New York: Columbia University Press, 1935). Lecler reports that he used a rare copy of the Conseil à la France désolée (Bibliothèque nationale, Paris, Lb, 33, 54), and that a 1578 Dutch translation exists. See Lecler, Toleration, 2:74, note 3. His treatment of Castellio may be found in Toleration, 1:336–64.

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Castellio’s position on tolerance is a model of simple exposition, emphasizing nothing more than that conscience should not be forced in matters of religion and that, in the beginning, the Reformers seemed willing to suffer persecution patiently and not return evil for evil. And it repeated the golden rule of the Christian Scriptures: “Never do to another what thou wouldst hate to have done to thee … To those who force another’s conscience it suffices to say: would you like your consciences to be compelled by others? At once their own consciences, worth more than a thousand witnesses, would convince them so completely they would be silenced.”15 The views of l’Hôpital, the anonymous author of the Exhortation aux Princes, and Castellio on the sanctity of conscience are the same. However noble in sentiment and simple of expression, the notion of toleration failed either to win immediate acceptance in the policies of governments of the day or even a significant place in any formal expressions of intellectually important political thought. As we are about to see, the more extended examinations of political and legal theory produced by the best-known and most significant European writers of the last half of the sixteenth century, such as Bodin and Althusius, whatever their claims to conceptual substance, originality, and influence, offer but the faintest echo of this lofty but essential element in modern political theory. More than a century would pass before it received a more comprehensive and forceful, even though still inadequate, treatment in Locke’s Letter Concerning Toleration.16 jean bodin Jean Bodin was born in Angers in 1529 or 1530, and the imprecision regarding his date of birth extends to other aspects of his early career.17 Educated at the Carmelite house of studies in Paris for several years as a novice, he seems to have left the Order around 1549 or 1550 to take up the study of law. His withdrawal from the Carmelites may have involved questions concerning his religious orthodoxy, but the matter is 15 Castellio, Conseil, 25. 16 See infra, 186, 188-90. 17 A good biographical account of Bodin may be found in the Introduction to Jean Bodin, The Six Books of a Commonweale, ed. Kenneth Douglas McRae (Cambridge, MA: Harvard University Press, 1962), A3–A13. A fine recent summary of his theory of sovereignty as absolute is Julian H. Franklin, “Sovereignty and the Mixed Constitution: Bodin and His Critics,” in J.H. Burns and Mark Goldie, eds., The Cambridge History of Political Thought: 1450–1700 (Cambridge: Cambridge University Press, 1991): 298–328.

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obscure, as is the unlikely possibility of his having been in Calvinist Geneva in the early 1550s. He may have begun his legal studies in his hometown, Angers, and he certainly studied and taught civil law in Toulouse between 1556 and 1559 (and possibly longer). By June 1562 he was practising law in Paris, where he would have had to make public profession of Catholicism in order to act even as an advocate in the Parisian Parlement. His legal practice in the capital must have been relatively leisurely, however, because he completed three substantial writings while so engaged, the first and largest being the Method for the Easy Understanding of History (1566), which made his reputation as a serious legal and political thinker. It seems that Bodin may have undergone a period of imprisonment in the late 1560s as a result of the strict application of a 1568 royal edict against the Reformed religion that saw all Protestants dismissed from office holding and enjoined to a new oath of Catholicity that had been imposed on the parlements and universities. He apparently resumed his legal career after the Edict of Pacification of 11 August 1570 dictated his release from confinement in the Concièrgerie at Paris; and by 1571 he had joined the household staff of the king’s youngest brother, Francis, Duke of Alençon, as counselor and master of requests. Bodin seems to have been suspected of involvement in the rather shadowy efforts Alençon made with Huguenot and Politiques support to seize the French throne from his dying brother, Charles ix; and he disappeared from view for several years in the mid-1570s. He re-emerged as the author of the République, or Commonweale (1576), his most comprehensive and significant treatment of legal and political theory. It was dedicated in its French editions to Gui du Faur, Sieur de Pibrac, a friend of Bodin and close advisor to the new king, Henry iii. For a brief time Bodin seems to have enjoyed royal favour and even friendship with Henry. But his persistent advocacy of a constitutionalist position on the need for popular consent for new taxation, beginning with his participation at the Estates General of Blois in 1576, saw this position erode, along with any hope of a court appointment. Bodin continued his employment with Alençon, however, until his master’s death, and he was involved in the prince’s ineffectual support for revolt in the Low Countries against Spain as well, apparently, as with Alençon’s equally unsuccessful efforts to wed Elizabeth of England. Bodin spent some time in England as a member of an Alençon mission in 1581, where he had an opportunity to observe the English Parliament at first hand. Bodin more or less retired to Laon on Alençon’s death in 1584 but remained somewhat in the public eye as he busied himself with scholarly activity, which included a complete reworking of a Latin version of

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the Commonweale. He again came into difficulties over the orthodoxy of his religious views in 1587 but was cleared at a public hearing in Laon. The following year Bodin became involved in the revolt instigated by the Parlement of Paris against the king when he chose to support the rebel Catholic position and joined the Catholic League. This caused him to remain in Laon during the next few troubled years. And when Henry of Navarre, having converted to Catholicism almost immediately upon ascending the throne and simultaneously providing some guarantee of religious tolerance for his Huguenot subjects, re-established general order throughout France under a Catholic monarchy, Bodin was able to satisfy at least himself that this time he was on the right side. He died in Laon in 1596; and a will probably written on his deathbed and dated 7 June of that year requested burial in the Franciscan church in Laon. Bodin’s major work, The Six Books of a Commonweale, has been described as “arguably the most original and influential work of political philosophy to be written in the sixteenth century.”18 Certainly the most extensive work of its type in the latter part of that century, it was also a deliberate effort to fashion a theory of polity incorporating the insights of the Italian humanist tradition in historical, literary, and linguistic expertise into a genuinely scientific treatise to replace the tattered shreds of medieval theological and juristic writings on politics. Bodin pushed most systematically for, and embodied most comprehensively in his own juristic writings, a two-faceted scientific approach to the study of law: first, he aimed to discover the meaning of a legal text’s original formulation through the precise recognition of terminology and language (this entailed the appropriate humanist rejection of scholasticism as a method and substituted a historical approach for the “foolish” assumption that any original [Roman law] text was reason itself); and second, he conducted a comparative study of known historical streams of law in various societies and jurisdictions in order to discover the ultimate general or universal (i.e., scientific) features of law itself – features found in all historical manifestations of jurisprudence whose discovery, organization, and correlation were expected to produce a rational account of the nature of law as such, a genuine science of law. In a word, he rejected 18 Quentin Skinner, The Foundations of Modern Political Thought, 2 vols. (Cambridge: Cambridge University Press, 1974), 1:208. R.W.K. Hinton places Bodin’s Commonweale midway between the medieval conception of limited monarchy and the modern notion of Austinian sovereignty. See “Bodin and the Retreat into Legalism,” in H. Denzer, ed., Jean Bodin, Munich: Beck, 1972, 303–14.

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the notion that the Justinian Code had “got it right” and, hence, that civil law was expressible simply as a gloss on the Code.19 Bodin produced two literary efforts to describe the proper method and scientific character of his theory of polity, and there were significant discrepancies between the two. His earlier work, the Method for the Easy Comprehension of History (1566), expressed somewhat more liberal views about the need to limit the exercise of ultimate authority by a political ruler than did the later Six Books of a Commonweale (1576), whose definition of sovereignty was developed precisely to show that term’s essentially unlimited character and was then applied directly to the French Crown. The appropriate, even necessary, socio-political context within which to appreciate Bodin’s political theory is, of course, late sixteenth-century France, the most significant feature of which, as already suggested, bespoke the recurrence of intense and intensely nasty religious warfare between Huguenot and Catholic factions. Never having much real prospect that their brand of the Reformed religion would achieve ascendancy in France as a whole, the Huguenots initially had sought a policy of accommodation from the French monarchy, arguing that the political authorities to which they were loyal had an obligation to defend their religious rights against the Catholic Guise faction. And during the 1560s, largely because of the tragic waste and bloodshed brought on by largescale fighting between the opposing religious groups in the early years of that decade, there was a period when the Huguenot call for toleration began to receive at least pragmatically based support from moderate Catholics and, correspondingly, a measure of support from the French Crown and government itself.20 Reason did not prevail, however; the two sides were too opposed on too many grounds. Also, the population was too badly divided, although obviously overwhelming Huguenot support was concentrated only in numerous self-enclosed communities and regions in the south of the kingdom. Civil war on a somewhat smaller scale and with a somewhat lower level of death and destruction broke out again in 1567 and 1568; and after the horrors of the St. Bartholomew’s Day Massacre (1572) it seemed clear to the Huguenots that no further purpose would be served by arguing their 19 The traditional scholastic approach can be explained, if not justified, by noting that, for centuries, the whole burden of intellectualized Christianity had involved the application of just this method to the texts of the Christian Scriptures: they were the “word”; and what was necessary was simply to follow them as it was believed that their meaning could be clearly understood – an attitude that had been strongly reinforced in its theological form by Reformist writers. 20 See Lecler, Toleration, 2:40–116; and supra, 16-21.

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loyalty to the French monarchy. What was needed was a change in both character and tone of argument. Where previously they had preferred to urge their French ruler’s responsibility to protect them against other disruptive elements within the polity, they now had to argue the right to defend themselves against a political authority that seemed to be committed to their destruction. Where previously they had claimed the right to resist other political elements that they identified as disloyal to France, they now had to claim the right to resist governmental authority itself, the right of revolution. They had to charge the French Crown with exceeding its own authority in oppressing their “true” religion.21 A second general current in sixteenth-century French political thought, which ran parallel to the by-now desperate desire for the implementation of the concept of toleration, also embodied the notion that the French Crown ought to function within definable limits. This was a re-expression of the medieval theory that political authority rested ultimately in the people over whom it was exercised and that authority and attendant popular interests were reflected in the institutions of governance, specifically the estates general and parlements that had developed from royal council-type bodies. An early sixteenthcentury expression of this view set within a French historical frame of reference was Claude de Seyssel’s La Monarchie de France, written in 1515 and published in 1519. Seyssel was successively bishop of Marseilles and archbishop of Turin, and he had served for a number of years in the French parlement which, like many concrete embodiments of the medieval corporation concept that located the principle of popular consent in some kind of representative body, exercised somewhat ambiguous chores on behalf of the French polity as a whole in vetting and implementing legislation. He had also been a member of Louis xii’s grand council. His Monarchie offered a moderate account of how the admittedly divinely appointed, and in some sense absolute, French monarchy was properly “bridled” by three other essential instruments of French polity: la police, la religion, and la justice, the first of which he considered the most important.22 La police – no 21 See Monahan, From Duties towards Rights, 258–64. 22 A modern edition of the Seyssel text exists. See Claude de Seyssel, La Monarchie de France, ed. Jacques Poujol (Paris: Librairie d’Argences, 1961). Seyssel’s use of “bridle” to denote limits for political authority was traditionally medieval; it was used by Aegidius of Rome, for example, in connection with limits on papal power. See Aegidius of Rome, On Ecclesiastical Power by Giles of Rome, tr. Arthur P. Monahan (Lewiston, NY: Edwin Mellon Press, 1990), 3.8; cf. Francis Oakley, Omnipotence, Covenant and Order, Ithaca, N.Y.: Cornell University Press, 1984. 55–56.

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single English term captures all the implications of the concept, but perhaps the word “policy” will do – itself had three components, all of which functioned in different ways to limit royal authority. In the first place, the monarch was limited by two specific laws he could not change: the stipulation that “the domain and royal patrimony may not be alienated without absolute necessity”; and the requirement of the Salic law that “the kingdom must go by male succession without falling into the female line.”23 Seyssel’s second element of policy was the limit on royal authority resting in custom. Over the centuries, his argument ran, a hierarchical society had emerged in France and the monarchy was obliged to preserve this structure, to provide for the rights and interests accruing over time to each of its classes, and to ensure that every subject was granted the rights and privileges due them by virtue of their social position. Third, and perhaps most potentially significant as a genuine instrument for limiting royal power, the monarchy was obliged to take counsel, to solicit and to act on wise advice. Not surprisingly, Seyssel’s view of the alleged limited character of the French Crown was pressed strongly by Huguenot publicists, whose arguments for their resistance theory were consciously drawn from scholastic and juridical constitutionalist sources.24 Seyssel’s views were by no means popular or without critics when he put them forward, however; and when Bodin took his own stance based on a more absolutist royalist mindset that rejected Seyssel’s position, it was to the views of these critics that he turned, even though he expressed them in a highly personal and more carefully argued form. Sixteenth-century French legists after Seyssel tended to downplay his emphasis on la police as a significant check to royal authority, even while continuing to acknowledge a general limitation; and there was certainly nothing like the later ringing seventeenth-century declarations of absolutism to be found a century earlier. Even Charles Du Moulin (1500–1566), the most systematic contemporary defender of royal supremacy and perhaps the greatest legal philosopher of his age, accepted some of Seyssel’s limits on the royal prerogative, such as the inalienability of the land and the Salic necessity of male hereditary 23 Seyssel, Monarchie, 119 and 112. The Salic law originated with the Salian Franks. Preeminently a penal code, it was a collection of ancient customs that offers much data on the sixth-century Franks. Modern scholarship rejects the view that it was authoritative as regards the succession of the French monarchy. 24 Cf. Monahan, From Duties towards Rights, 262–72, especially 267–68.

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succession, in his Commentaires sur les coûtumes de Paris (1539). And others, like Chasseneuz and La Perrière, also stressed Seyssel’s concern for custom and its maintenance of an essential order of hierarchical elements in the French polity, but they did so from a humanist rather than from a legist perspective.25 The general trend in French legal and political thought at the time, however, was towards a more striking statement of royal authority – one not bridled by the sorts of things to which Seyssel had referred. This was particularly so as regards the monarch’s need to take counsel and, more immediately alarming in the context of the deepening character of religious differences between Protestants and Catholics, with respect to the perception of the commonweal as a harmonious whole. Writing in his Commentarius in constitutiones seu ordinationes regias (1540), for example, Pierre Rebuffi agreed that “laws are concluded in a more satisfactory manner [when] sent to the highest court [parlement] before they are promulgated, [but he asserted that] the king can promulgate on his own: the king’s ordinances have the force of law in this kingdom … [and the king can] both abrogate the law and allow customs contrary to the law.”26 The other trend towards absolutism and away from the monarch’s obligation to maintain an ordered social hierarchy stemmed from the increasing tendency to describe the king in terms of his sovereignty and its essential signs, which the humanist emphasis on the history of the royal institution had analyzed: the concept of imperium and an examination of its characteristics began to replace the obviously divided and hierarchical feudal structure. As well, the professedly pro-Bartolist approach to the legal concept of authority emphasized sovereignty in terms of imperium (du Moulin contributed significantly to this tendency).27 The immediate French background to Bodin’s political thought is worth outlining in the period between Seyssel and Bodin himself, then, because it shows clear lines of developing in two opposite directions, while reflecting two forms of political ideology that are of the greatest contemporary importance: (1) the Huguenot and Genevan Calvinist resistance theory expressed during the French religious wars of the period and (2) the theory of absolute monarchy that 25 Skinner, Foundations, 2:261. 26 Pierre Rebuffi, Commentarius in constitutiones seu ordinationes regias (Lyon: (Guieliemi Roussij, 1613), 34. 27 Skinner, Foundations, 2:262. For the Bartolist position see Monahan, From Duties towards Rights, 21–23.

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was to dominate French political life and much of its political thinking from the mid-sixteenth century until its cataclysmic rejection some two hundred years later.28 French juristic attacks on Seyssel’s doctrine of la police as a means of bridling the French monarchy have been mentioned. His other two elementary sources for the needed bridling effect, la religion and la justice (especially the latter), also came in for criticism by advocates of the French royal imperium. Seyssel had fleshed out his notion of limits on royal power by designating the Parlement of Paris, the highest French court, as the specific instrument for setting the bridle of la justice. For him, a king failing to uphold la justice could expect his actions in these justicial areas to be challenged and even repudiated by the parlement, which had “principally been established to check the absolute power kings might otherwise seek to exercise.” 29 Seyssel recognized clearly, moreover, that a fundamental feature of the real ability of parlement to function in this manner was the independence of the judiciary as specifically located in the parlement. He stipulated, accordingly, that “the officers deputed to administer justice should be perpetual, so that it is beyond the power of the king himself to depose them … to uphold the exercise of justice with full assurance [they must be] sovereign [in their sphere].”30 Quite simply, the king was not to control the parlement with respect to being able to appoint and dismiss its members. Sixteenth-century French legal apologists for royal absolutism took careful aim at this bridle of justice; and while continuing to depict the monarch as the personification of an abstract and transcendental notion of justice possessing its own essential characteristics, they began to urge that the king, as its personification and as possessing the full imperium in his own person, must have conceded to him the ability to make his own ultimate determination of where justice lay. One specific form this argument took, a view applied earlier to the papal monarchy and seen again in James I of England’s argument with Sir Edward Coke over the royal prerogative, involved the distinction between ordinary 28 Franklin’s view is that the possibility of implementing some form of representative constitutionalism in France was real up to about the middle of the sixteenth century. See Julian H. Franklin, Jean Bodin and the Rise of Absolutist Theory (Cambridge: Cambridge University Press, 1973); and Franklin, Jean Bodin and the Sixteenth Century Revolution in the Methodology of Law and History (New York: Columbia University Press, 1963). 29 Seyssel, Monarchie, 117. 30 Ibid., 118.

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and absolute power.31 The king might be said to be bound by certain customs and unable to rescind any of the ancient rights of the kingdom in terms of his ordinary authority, but his absolute power was not limited in this fashion. Barthelemy de Chasseneuz noted in his Catalogus gloria mundi (1540) that the Parlement of Paris could be compared to the Roman Senate, and “the king out of his ordinary [sic, ed.] power cannot rescind any of its acts”; but he insisted that the monarch could do so out of his absolute power.32 Charles Du Moulin was even more outspoken on this issue, although he did not employ the ordinary/absolute distinction. He took the view that all political officers and appointments fell under the monarch’s sovereign jurisdiction and, hence, that the “authority to constitute magistrates must be counted among the king’s regular rights [such that judges] cannot be the independent owners of their jurisdiction … they merely administer them [in the king’s name].”33 And writing some ten years after Du Moulin, Rebuffi also described the status of the parlement and the judiciary in general as currently within the royal prerogative: “At one time the highest courts even controlled the kings themselves … [but nowadays the kings] do not obey them, and are no longer governed by their advice.”34 “It is well known to everyone [that] it is not lawful for the parlements to make appeals, but only to supplicate their prince.”35 The Seysselian position that judicial officers were not subject to removal at the king’s pleasure was 31 See Monahan, From Duties towards Rights, 285–88 and passim; cf. James I (of England), “A Speach to the Lords and Commons,” in The Political Works of James I, ed. Charles H. McIlwain (Cambridge: Cambridge University Press, 1918), 309– 15; “A Speach to the Starre Chamber … anno 1616,” in James I, Political Works, 333. Cf. Oakley, Omnipotence, Covenant and Order, 103–08. 32 Barthelemy de Chasseneuz, Catalogus gloria mundi (Lyon: n.p., 1546), 7, fol. 6b. The idea that a political ruler should apply “true” justice rather than merely the letter of the law was as old as Plato, of course: it was expressed by Aristotle in the distinction between justice and equity, and it was an explicit component in medieval political thought at least from the time of John of Salisbury, who stipulated that one meaning of the ruler being “above the law” referred to a monarch’s ability to apply epieikeia. Ptolemy of Lucca argued that, on this count, a king was superior to elected republican rulers who had no discretion to set laws aside in favour of justice. See Ptolemy, Governance of Rulers, 3.20 and 4.1 (In Thomas Aquinas, Opuscula Omnia, ed. Jean Perrier, vol. 1, Appendix 1, 264–426 [Paris: Lethellieu, 1949].) 33 Charles Du Moulin, “Prima pars commentariorum in consuetudines Parisiensis,” in Opera omnia, 5 vols. (Paris: 1681), 1: col.2; 80, col. 1. 34 Rebuffi, Commentarius, 21. 35 Ibid., 289.

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also specifically and urgently rejected by Du Moulin, who invoked the traditional historical dispute between Azo and Lothair to illustrate his point. For Du Moulin, Lothair was in the right: “All right, dominion and possession lies in the prince alone”; and his final word was that “the king must in every case retain the right to add ’so long as it pleases us’ whenever any appointment to any office whatever is made in the realm.”36 Something of a reaction to this view, however, and a reversion back to a constitutionalist form of thinking, had begun among certain moderate Catholic political writers in the 1560s, among them Bodin himself, caused, it might be assumed, by a revulsion to the tragedy of the religious civil wars. And it was at least partly to this constituency that, after 1572, the Huguenot publicists pitched their arguments in favour of resistance. One feature of the 1560s constitutionalist critique against the deepening absolutist tone of juristic texts of the previous several decades was a straight repetition of the medieval and historical arguments concerning the structure of the French polity. But use was also made of the newer Italian humanist approach to the law, according to which the French absolutist jurists’ assumptions about the fixed character of Roman law and the validity of a simple application of concepts like imperium to contemporary political jurisdictions were put in question. Alciato had brought the new juristic methods to France in the 1520s and employed them fruitfully in his teaching of law at both Avignon and Bourges, especially the latter, where he became the central figure in a new school of French civil jurisprudence. Hotman, author of the Francogallia, was a follower of Alciato, and his Anti-Tribonian (1567) was a straightforward diatribe against an exclusive and excessive emphasis on Roman law in French jurisprudence.37 While the negative, critical side of the humanistic approach to the study of French law rejected its Roman aspects, the positive side focused on the history of French legal forms and institutions. Pioneers of this approach were Estienne Pasquier (whose Les Recherches de la France, which began publication in 1560 and whose second part, which appeared in 1565, offered a structural analysis of the French constitution) and Bernard du Girard (the Seigneur Du Haillan, who brought out his De l’état et succès des affaires de France in 1570 and a history of France in 1576). The most influential exponent of the new approach, however, was Jean Bodin, whose Method for the Easy Comprehension of History was published in 1566 and whose more comprehensive political and legal treatise, Six Books of a Commonweale, established his reputation. Bodin spoke in the dedication of his Method of “the way in which one should cull flowers from History to gather thereof the sweetest 36 Du Moulin, Prima Pars Commentarium. 1.79, col. 2; 1.80, col. 1. 37 Cf. Monahan, From Duties towards Rights: 47–48, 256–60.

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fruits”;38 and he proceeded to apply the historical method in a systematic fashion that included a discussion of the variety and nature of his sources, their selection and arrangement, and the criteria for evaluating them. The text’s substantive part, in a chapter entitled “The type of government in states,” is a lengthy comparative and historical examination of the various forms of polity in Rome, Sparta, Germany, Italy, and, most important, France; and it seems clear that Bodin is on the way here to applying the first of the two ingredients in his “scientific” approach to the nature of polity, which he developed fully in the Commonweale: the quest among historical data for the common and thus essential features of a state. The second element, of course, was the comparable list of features found in the concept of sovereignty by way of logical analysis. Both ingredients appear in the Method; but, as we shall see, the “indivisibility” aspect of the latter is given greater stress in the Commonweale, resulting in a more strident expression of political absolutism.39 Bodin by no means agreed with every position taken by other constitutionalist political thinkers of the period, however, especially not with the Huguenot publicists whose views were expressed in the 1570s and later. He specifically rejected the notion of a mixed form of government as intellectually confused and absurd,40 identifying (as Hobbes did later) monarchy as the best form of polity, and accepting the absolutist jurists’ position that the “principal mark” of sovereignty was that of “creating the most important magistrates and defining the office of each one,” and that the only basis upon which constitutional decrees could “have force in any way … [was when] the prince himself orders them.”41

38 Jean Bodin, Method for the Easy Comprehension of History, tr. Beatrice Reynolds (New York: Columbia University Press, 1944), 1. 39 See Franklin, “Sovereignty and Mixed Constitution,” 301–02. 40 Bodin, Method, 154, 1718. 41 Bodin, Method, 172; 176; cf. 271; 272. Following Church, Franklin, and Kelley, Skinner attaches importance to Pasquier, Du Haillan, and Bodin as a group of people who examined the history of how bridles were placed on the French monarchy, specifically as regards the contract with the French people contained in the coronation oath. He also notes that Beza, Hotman, and Mornay did the same. See Skinner, Foundations, 2:273–74. And Franklin indicates that, in the Method, Bodin differed from Alciato in attributing a minor measure of imperium to magistrates, with the ruler holding the major portion but not its entirety – a position he forsook in the Commonweale. See Franklin, “Sovereignty and Mixed Constitution,” 300.

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However, the Method did accept the general Seysselian concept of bridles to the royal authority and, like Pasquier and Du Haillan, concentrated on the bridle of la justice. Discussing the French form of monarchy, Bodin asserted that the king was not above the law because he was responsible for providing la justice by making certain that the laws conform to it. “Princes use sophistry against the people when they say that they themselves are released from the laws so that not only are they superior to the laws but also are in no way bound by them.”42 He was also explicit on the same point about the monarch and the law when he attributed a juridical function to the Estates General in the abrogation of any law: the king “cannot destroy the laws peculiar in the entire kingdom, or alter any custom of the cities or ancient ways without the consent of the Three Estates.”43 And he was equally explicit concerning the limiting function of the parlements as regards the court system, insisting again with Pasquier and Du Haillan that the king had a duty to take counsel from the highest court in the land: “Those trying to overthrow the dignity of these courts seek the ruin of the State, since the safety of civil order, laws, customs and the entire state in these is placed.”44 Also, now differing consciously but diffidently from his fellow jurists Pasquier and Du Haillan, and more deliberately from an opponent like Du Moulin, Bodin in the final analysis accepted the Seysselian view of the judiciary as not properly under the royal prerogative as regards appointment and dismissal. “What would the magistrates dare to do contrary to the power and desire of princes if they feared their honors would be taken from them? Who will defend the weak from servitude? Who will guard the people’s interest if magistrates have been driven away and just comply with the demands of the mighty?”45 Bodin’s reply to his own question maintained that for magistrates to be “feared by the wicked … [and] reverenced by the prince [prince and people alike all should agree that magistrates] cannot be driven from power except for crime.”46 Bodin later rejected his own mid-1560s liberal constitutionalist position of the Method, which contained and even anticipated many conclusions and forms of argument employed by later Huguenot publicists. His reasons must have been complex and are probably impossible to determine accurately from this distance in time, particularly given that he left no personal account of the switch. Arguably, the two most significant factors 42 43 44 45 46

Bodin, Method, 203. Ibid., 204. Ibid., 257. Ibid., 244. Ibid., 256.

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would have been his increasing perception of the logical implications of his insistence that sovereignty was indivisible (and thus its locus in the ruler absolute), and his horror at the devastation and loss of life attendant upon the French wars of religion, one of whose causes Bodin saw as the Huguenot resistance claims against a tyrannical ruler (themselves grounded in the notion that the prince’s authority is limited by other elements in a polity). At the same time, the change can be exaggerated in terms of basic doctrine or ideology. To describe it as a move from a constitutionalist to an absolutist stance, as Skinner does, is, after all, to employ modern and emotionally charged terminology that can distort the contrast between the earlier and later phases of Bodin’s thought.47 He insisted in the Method on the monarch’s ultimate sovereign authority even while specifying limits to its exercise; and his stress on the “absolute” character of the French monarch’s sovereignty in the Commonweale, as we shall see, was accompanied by at least an abstract notion of limitation on royal authority. The most clear-cut change between Bodin’s two texts was over the issue of whether the French monarch was above the law. If this is the final touchstone concerning whether a theory of polity is constitutional or absolute, then Bodin can be said to have become an absolutist thinker in the Commonweale after having been a constitutionalist in the Method. But this is a different criterion than the one Skinner mentions when stressing Bodin’s rejection of the Huguenot resistance theory. Acceptance or rejection of a resistance theory is not the essential conceptual issue dividing constitutionalist from absolutist thinkers. Some advocates of resistance theory were themselves quite prepared to advocate an absolutist view, as Bodin spelled it out, while having few if any qualms about the legitimacy of an unmixed monarchical form of government.48 The issue of what constitutes a late sixteenth-century liberal attitude towards religious division involved the notion of toleration, not resistance. And few if any Protestant or Huguenot resistance theory publicists had anything significant to say about toleration, although their silence on the matter may only reflect their exclusively publicist intentions. Castellio, 47 Skinner, Foundations, 2:284. Franklin expresses a much more nuanced view that accommodates the two seemingly incompatible Bodinian texts by arguing that their author’s conceptual difficulties stem from the basic incoherence of his theory of sovereignty as indivisible. See Franklin, “Sovereignty and Mixed Constitution,” 306–09. 48 Suárez, for example, in the Spanish neo-scholastic tradition, as well as anyone such as Luther and Beza, who were very clear that various forms of polity, including that of absolute monarchy, might be legitimate: cf. Monahan, From Duties towards Rights: 177–84.

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mentioned earlier, was an outstanding exception; but his views seem to have found little favour among his fellow Reformers.49 For his part, however, Bodin was a firm advocate of state toleration for differing religious views, even though he made no reference to this position in either the Method or the Commonweale; and apparently he did not accept that such an attitude detracted from the essentials of sovereignty. What was intolerable, on the other hand, was to concede a right of resistance to any of the sovereign’s subjects: this was logically contradictory in terms of legal theory. The absence of any positive statement on religious toleration from both the Method and the Commonweale is somewhat perplexing, even though, as just noted, there is no outright contradiction between sovereignty and toleration: the sovereign could simply declare it. To construe either or both of these major works in terms of an admittedly clear statement favouring religious toleration from the Colloquium, a text published more than 200 years after Bodin’s death and that may only have been intended for private circulation, however, would seem a bit of a stretch. Bodin always publicly accepted the value of religious uniformity – nothing does more “to uphold and maintain the estates and commonwealth” than religious unity – while also maintaining that there could never be any acceptance of toleration for minority religions.50 Evidence for a doctrine of limits on the monarch are found in the Commonweale, although Bodin was more forthright on the subject in the Method, particularly as regards limitations from the side of la justice. The Commonweale acknowledged two fundamental legal constraints on French 49 See Lecler, Toleration, 2:74–77. 50 Bodin’s treatment of religious toleration, published only after his death, however, is in the Colloquium of the Seven about Secrets of the Sublime, tr. Marion L.D. Kuntz (Princeton: NJ: Princeton University Press, 1945); cf. Skinner, Foundations, 2:246–49. The same form of argument as regards the supremacy of sovereignty is the foundation for modern legal positivism pronounced so stridently in the nineteenth century by John Austin. Contemporary legal positivists like Joseph Raz and Russell Hardin also maintain that there can be only one sovereign and that it is theoretical nonsense to posit a legal limit on sovereign authority or deny that the sovereign is above the law. Yet they filter out undesirable characteristics from a sovereign described as legally absolute by distinguishing between absolutism and arbitrariness. Authority must be absolute insofar as this is an essential feature of the concept of sovereignty itself; arbitrariness can be eliminated apparently by construing authority to entail acceptance by and congruence with the rational requirements of governance itself. Late medieval and early modern Catholic and Protestant political writers all would have agreed on theoretical grounds. See Joseph Raz, “Authority, Law and Morality,” The Monist 68 (1985): 295–323; and Russell Hardin, “Sanction and Obligation,” ibid., 403–18.

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royal power “which concern the state of the realm and the establishing thereof [such that] the prince cannot derogate from them,”51 both mentioned earlier by Seyssel and Du Moulin. The first was the Salic law guaranteeing a male succession: “The rule and government of women is directly against the law of nature”;52 and the second enjoined the king from alienating the royal domain: even in an absolute monarchy the ruler enjoys “the use only,” never ownership, of the royal domain. “All monarchs and states have held it for a general and undoubted law [that lands granted the monarch are for him] to live of his own [and represent a part of] the public revenues that cannot lawfully be sold or otherwise alienated, and as such are holy, sacred and inalienable.”53 Bodin also retained the traditional notion of a necessary connection between positive law and the dictates of natural justice, even while stressing that positive law was nothing but the declared will of the sovereign. There is nothing obviously contradictory here, of course, any more than there is a contradiction between a subject having an unqualified obligation to obey political authority and the contention that there are some things no subject can be required to do (e.g., disobey the laws of God and nature). Interpretive judgments finding such contradictions, not to speak of those stressing and exploiting them, are simply insufficiently nuanced where they do not distort the meaning of a doctrine by accepting rhetorical expressions of it at face value. Bodin was clear in the Commonweale that his absolute monarch was governed and limited, bridled, While advancing this interpretation of Bodin, Skinner calls the posthumous Colloquium text “perhaps the most emancipated discussion of religious liberty produced in France in the course of the religious wars,” pointing out its use of the then radical argument seen also in Castellio of the “unavoidable uncertainty at the heart of our religious beliefs.” See Skinner, Foundations, 2:246; cf. op. cit., 246–53. (However, compare earlier but contemporary arguments concerning the need for toleration in the 1550s and 1560s positions of l’Hôpital and Postel.) He also shows that, in the Commonweale, Bodin maintained that disputations concerning differences in religion should “by most strict laws be forbidden,” while also granting that “rival religions represent such a potent source of discord … they must always be tolerated where they cannot be suppressed,” inasmuch as the health and unity of a polity always comes first. 51 Bodin, Commonweale, Jean Bodin, The Six Books of a Commonweale, ed. Kenneth Douglas McRae (Cambridge, MA: Harvard University Press, 1962), 95. This is a carefully revised edition of a 1606 English translation, with a fine introduction. 52 Ibid., 746; cf. 753–54. John Knox had made the same point when defending the Scottish Reformation against Mary. 53 Bodin, Commonweale, 651.

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by the laws of nature and God, thereby linking la justice with la religion. In the chapter “On sovereignty” he remarked that, for the monarch to be “free of all laws” says nothing about his position as regards “the laws of God and nature … all princes and peoples of the world [are subject to these laws; nor is it] in their power to impugn them [without being] guilty of high treason to the divine majesty.”54 “They [princes] cannot be exempted from the same, either by the senate or the people, who would then have to be forced to make their appearance before the tribunal seat of almighty God … [to argue] that princes are not subject to laws [so that not to note these limitations from the laws of nature and God is to] do great wrong both to God and nature.”55 Even speaking in his most absolutist tones when denying that the sovereign was bound to follow the advice of the Estates, Bodin rested the monarch’s right to so act on the need to follow “reason and justice.”56 Bodin rang a number of changes on the principle of the superiority of the laws of God and nature as regards their impact on the behaviour of both subjects and sovereign. A citizen’s obedience to the laws of God entailed an obligation to disobey any civil law that violated either God’s law or the law of nature based on divine law. But disobedience did not extend to a right of active resistance: not even a magistrate could engage in this sort of action. He even argued that a magistrate was obliged to enforce, and himself could not even passively resist, a law contrary to civil statutes but not in violation of the laws of nature or God: “[if] the commandments of the prince be not contrary to the laws of God and nature … it belongs not to the magistrate to examine or censure the doings of the prince, or to cross his proceedings concerning a man’s law, from which the prince may as he sees cause derogate.” 57 Here Bodin reiterated the well known anti-resistance views of early Lutheran and Calvinist thought against the Huguenot publicists. In the case of sovereign commands that violate the laws of God or nature, on the other hand, “the honour of God … ought to be to all subjects greater and more precious than the wealth, life and honour of all the princes of the world.”58 Further, the monarch was obliged to follow the laws of nature in two specific ways that very significantly limited the range of his jurisdiction. First, he must honour his own contracts, even those made with his own subjects, a stipulation that, for Bodin, rested on the law of nature and 54 55 56 57 58

Ibid., 92. Ibid., 104. Ibid., 313, 324. Ibid., 313. Ibid.; cf. 324.

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entailed a moral, if not strictly speaking a legal, obligation. However, he distinguished carefully between laws and contracts made by a sovereign ruler: the former depend on “the will and pleasure of him that has the sovereignty; [the latter] between prince and his subjects is mutual, reciprocally binding both parties, so that one party may not start therefrom to the prejudice or without the consent of the other.”59 Both laws and contracts are equally binding on the prince, of course, the latter especially if the prince is a party to it. But the nature and origin of their binding force differ: laws bind the monarch morally, contracts legally. A second limitation on the sovereign was the requirement to respect the inalienable property rights of subjects. Bodin grounded this in divine law, the commandment not to steal, as well as in the fact that the same obligation can be found in the law of nature. He was particularly insistent that all states were “appointed by God” for the proper disposition of material goods, to provide as common what was intended to be so, and to protect “unto every person in private that which unto them in private belongs.” And he allocated responsibility for guaranteeing individual property rights to the sovereign, while also spelling out a ruler’s inability to infringe these rights. Anyone contending that a sovereign prince had power to take away another person’s goods by violence is “taking a position contrary to the laws of God.”60 Consent from the owner is thus required to legitimate a sovereign’s takeover of any private property; and Bodin extended this requirement of consent by the subject to include taxation as well, but without employing the traditional quod omnes tangit formula. Taxation is a form of confiscation, unless agreed to by the subjects, because it is contrary to God’s law for a sovereign to remove goods from their private owner. Bodin consistently held that all taxation required explicit consent and that new taxes ought to be avoided as far as possible; he argued this position publicly in 1576 as an elected member of the Estates General and also presented it in the Commonweale in the section entitled “Of treasure.”61 He accepted a subject’s general obligation to support the commonweal by paying taxes when the state is “suddenly oppressed either by an enemy or some other unexpected accident [and charges] are then imposed upon the citizens; [these are] religious and godly [and their purpose is to protect the polity against being] quite ruined;”62 but he reminded the sovereign that not even the absolute king of France could 59 60 61 62

Bodin, Commonweale, 93. Ibid., 109. Ibid. Bodin, Commonweale, 662.

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“lay any imposition … nor … prescribe the right [to tax] without their [the people’s] consent … [as] nothing does sooner cause changes, seditions and ruins of state than excessive charges and imposts.”63 A centrepiece in Bodin’s description of the state in the Commonweale was the Stoic humanist and medieval scholastic notion seen earlier in Seyssel: the necessity for a fitting order of elements, or harmony of features, in a proper political society. Bodin took a practically skeptical attitude towards the likelihood of this being present in a given polity, however, seemingly taking a leaf from Machiavelli about the need for communal harmony while accepting that its reality was unlikely. He suggested that one could not expect political harmony to be “of any long continuance [because of] changes in worldly things which are so mutable and uncertain.”64 His own experience of the St. Bartholomew’s Day Massacre, from which, like Hotman and Mornay, he only narrowly escaped, doubtless coloured his views here. In the event, however, it was precisely his concern for social harmony that led Bodin to take so strident a stance against Huguenot resistance theory in the Commonoweale, whose prefaces to all six of its editions clearly show this to have been the work’s main purpose. He asserted his horror of subjects “arming themselves against their princes, [of] treatises being brought out openly, like firebrands, to set commonwealths ablaze [and of writers claiming that] princes sent by providence to the human race must be thrust out of their kingdoms under a pretense of tyranny.”65 He intended to answer “these dangerous men [who] induce subjects to rebel against their natural princes, opening the door to a licentious anarchy worse than the harshest tyranny in the world.”66 His own stance was a straightforward and categorical rejection of any right to resist legitimate authority; and, in taking this stand, he invoked the authority of Luther and Calvin, thereby misrepresenting the German Reformer’s views and, arguably, Calvin’s as well (inasmuch as both did concede some grounds for defending the “true” religion against political suppression).67 63 Ibid., 665. Skinner is right to maintain, contrary to both Allen and Franklin, that Bodin does not contradict himself here. See Skinner, Foundations, 2:297. Bodin’s forceful and sustained insistence here that popular consent was required for a ruler to be able to tax was a significant limitation on his concept of sovereignty, and it illustrates an explicit expansion of the concept of property rights not seen earlier. 64 Bodin, Commonweale, 406 65 Bodin, Commonweale, Preface to 2nd ed., A71; cf. supra, note 27. 66 Ibid., Prefaces to 1st and 2nd eds., A70–71. 67 For Luther here see Monahan, From Duties towards Rights, 197–206; for Calvin, ibid., 226–31.

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Bodin’s assessment of resistance appeared in the beginning of the second book of the Commonweale, where he presented the classical division of types of polity and proceeded to distinguish three sorts of monarchy: royal, lordly, and tyrannical. He asked in Book 2, chapter 5, whether it was lawful to lay violent hands on a tyrant; and his unqualified negative reply involved a complete reversion to the earliest Reformer political thought on the subject. However, his argument was couched in philosophical rather than theological terms and offered a much more complicated justification for necessary obedience to even tyrannical authority than a simple invocation of Romans 13. Writing in deliberate reply to resistance tracts from current Huguenot sources, he castigated in the most virulent terms those who claimed that “subjects may take up arms against their prince [and] lawfully take him out of the way.”68 Bodin’s view was that it can never be lawful “for anyone of the subjects in particular, or all of them in general, to attempt anything either by way of fact or justice against the honour, life or dignity of the sovereign, even though he had committed all the wickedness, impiety and cruelty that could be spoken,” adding that “any man who shall so much as conceive a thought for the violating [of the sovereign] is worthy of death [though actually having] attempted nothing.”69 A coach and four can be driven through this formulation, of course, insofar as it appears literally as an unqualified injunction to accept the political status quo. And, among other things, Bodin had already extensively cited Cicero as justifying resistance to tyranny in defence of freedom, and he would have known that the great Roman orator’s later public career included the assessment that he must oppose the tyranny of his own state. As one might expect, then, Bodin also inserted the traditional qualifiers on the obligation to obey political authority. He identified two. First, insisting that the injunction to obedience assumed the legitimacy of the authority at issue, he conceded that a tyrant ex defectu tituli, someone lacking genuine claim to political power, could always “lawfully be slain [by] all the people or any of them.” This is the age-old view that a usurper has no claim to office and therefore no de iure authority.70 Bodin’s second qualification is the more interesting, however, addressing as it does the second type of traditionally distinguished tyrant: a legitimate officeholder who practised tyranny. This was the critical category for current allegations of tyranny: no Huguenot or other 68 Bodin, Commonweale, 224. On the early views of Luther and Calvin on this subject see Monahan, From Duties towards Rights, 197–206; 226–28. 69 Bodin, Commonweale, 222. 70 Ibid., 219.

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Reformer political writer had ever argued, nor could they honestly, that the rulers against whom they justified resistance were usurpers. Bodin’s view on resistance to an incumbent tyrant legitimately in office, a position subsequently endorsed by Grotius, held that resistance was not permissible to anyone from within the commonwealth over which the sovereign exercised jurisdiction but that “a valiant and worthy prince [from elsewhere could act] to defend the honour, goods and lives of such as are unjustly oppressed by the power of the more mighty.”71 This argument had also been made in several Huguenot tracts of the 1570s. But when Bodin’s critics pointed this out, his response in a specially written Apology simply contended that no invasion of France by an outside power could be countenanced;72 and his explicit position in the Commonweale was that “it is not lawful for a man not only to kill his sovereign prince, or even to rebel against him without an especial and undoubted commandment from God.”73 Although this view also had been expressed among more conservative Reformist political writers such as Beza, to the dismay and derision of more radical Huguenot publicists, its rational inadequacy must have been evident to Bodin himself: requiring a “sign from heaven” would scarcely meet his own criteria for scientific formulation and argumentation. Perhaps all that can be said for this curious form of statement is that Bodin must have been prepared, in the absence of any better argument, to attempt to persuade his critics by repeating a position used earlier by Reformation thinkers. Inconsistent as this reply to his critics was, then, and however impractical his formally accepted possibility of legitimate resistance from “outside,” it can still be said that Bodin did not rule resistance to tyranny completely out of court even in his most absolutist statement of political theory. Continuing to oppose current advocacies for resistance, however, Bodin wrapped up his rejection of Huguenot resistance theory by erroneously asserting, as mentioned earlier, that neither Luther nor Calvin had ever taught anything different from his own position: that Luther’s response to the German princes concerning the legitimacy of resistance to the emperor was that he “frankly told them it was not lawful, whatever tyranny or impiety were pretended”; and that Calvin’s apparent legitimation of resistance by reference to “ephoral” authorities was worthless because the Genevan divine acknowledged only that they may “possibly resist,” and he never intended this to be “lawful in a 71 Bodin, Commonweale, 220–21. 72 Text cited in Franklin, Jean Bodin and the Rise of Absolutist Theory, 95, n.12. 73 Bodin, Commonweale, 224.

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right monarchy.”74 This last remark is interesting as regards its use of the term “right.” Calvin would have agreed with Bodin’s literal expression of the text of the Institution, but he might have remarked, at least sotto voce, that rulers who opposed the “true” religion did not conduct a right monarchy. Unfortunately, Bodin did not pursue the issue of what he meant by “right.” Is it conceivable that, in the final analysis, conceding as it does Calvin’s acceptance of the possibility of resisting “unrightful” monarchy, the logic of Bodin’s position might require him to agree?75 Withal, the purely ideological formulation of Bodin’s doctrine actually contained a doctrine of tyrannicide against a political usurper as well as a very narrow theoretical basis for legitimate intervention against a tyrant by an external political power. The real argument Bodin seemed to be having with his Huguenot opponents was on the issue of whether the French monarch’s behaviour towards them, as well perhaps as almost any other conceivable action that might be taken against them, could be properly called tyrannical. While something of an ideological cul-de-sac, the issue of the theoretical inadequacy of Bodin’s view differs from that of pure absolutism’s ultimate rejection of limitations on the royal prerogative. Bodin’s acceptance of the Seysselian concepts of la police, justice, and religion sets legal limits on the French monarchy and circumscribes his concept of sovereignty in such a way as to make his doctrine less than an out-and-out absolutism. A better way to approach Bodin at this point, then, might be to examine his statements concerning the authority of the French king in the relevant sections of the Commonweale, specifically Book 1, chapter 8: “On sovereignty.”76 For Bodin, the concept of sovereignty was “the principal and most necessary point for understanding the nature of a commonwealth”;77 and he proceeded to argue the necessity of a sovereign in any political society as an entity absolute in commanding while 74 Ibid., 225. 75 Cf. supra, 39-40. 76 Some have argued that the Commonweale cannot be understood without accepting it as a livre de circonstance insofar as its theory of sovereignty was designed to justify its author’s attack on Huguenot resistance theory. See Salmon, “Bodin and the Monarchomachs”; Franklin, Jean Bodin; Skinner, Foundations, 2:285, note 1. But this seems too narrow an interpretation of its overall purpose, even granting his explicit statements to this effect in the introductions to its several editions, especially given the generally abstract formulation of doctrine in the text as a whole. 77 Bodin, Commonweale, 84.

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never being commanded and, hence, never opposable by any subject. Defining sovereignty in Book 1, chapter 8 [the locus classicus for his description of this concept] as “the most high, absolute and perpetual power over citizens and subjects in a commonwealth,”78 he understood by “absolute” that it is not lawful for the subject to break the laws of his prince or oppose him in any other way under the colour of honesty or justice … even if his commands are never just and honest.79 The sovereign simply “cannot be the object of legitimate resistance because the person in whom sovereignty rests [is required] to give account to none but the immortal God alone.”80 Bodin’s text attributed sovereignty to the person of the king of France inasmuch as he accepted that the French monarch embodied the sovereignty of the French state; but the language employed indicates that he aimed to articulate the kind of abstraction achieved later by Grotius and, especially, Hobbes, whose “leviathan” was a “mortal god [to whom] we owe under the immortal God our peace and defence.”81 The power of the sovereign is unquestionably supreme, just as its exercise in a polity has a single purpose: the securing and maintenance of order. For Bodin, accordingly, rejection of the right of resistance was a logical entailment of the concept of sovereignty itself, just as sovereignty is entailed in the very notion of commonwealth or polity. And while Bodin continued to speak of the sovereign as a person, his concept of sovereignty was of an abstraction containing the essential properties of an integral political society comprehensive in its own right and fully independent of any power outside itself – a fact of which Bodin was quite aware. When identifying the by now conventional marks of sovereignty discernible through a historical examination of the French monarchy, as had been done by earlier writers, he listed nine: the powers to legislate, make war and peace, appoint higher magistrates, hear final appeals, grant pardons, receive homage, coin money, regulate weights and measures, and impose taxes. 82 But he also insisted that the proper method for examining the nature of a commonwealth required a definition of majesty or sovereignty,

78 Ibid. 79 See again, Commonweale, 222. 80 Bodin, Commonweale, 86. 81 Thomas Hobbes, Leviathan, ed. Edwin Curley (Indianapolis: Hackett, 1994), 109. Cf. Preston King, The Ideology of Order. A Comparative Analysis of Jean Bodin and Thomas Hobbes (London: George Allen and Unwin, 1974). 82 Bodin, Commonweale, 159–77.

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contending further that he had been successful here in doing what no “lawyer nor political philosopher” had achieved before.83 Bodin began essentially with the general Aristotelian and humanist view of a state or commonwealth as the next logical and presumably also historical step up from a simple grouping of human family units, arguing on rational grounds rather than being satisfied with an informal or assumed historical frame of reference. For him a commonwealth is “the lawful government over many families by a high and perpetual power over the citizens,”84 with this high, or absolute, power in the hands of an identifiable individual or group. In other words, it is not sufficient for a commonwealth to be defined by an abstraction having a locus of absolute authority; the authority must be located in an identifiable individual or group within the polity. Like Hobbes who followed him specifically on this point, Bodin was careful to maintain the universality of his definition by indicating that the embodiment of sovereignty could be one or many individuals. The fact that his own judgment located French sovereignty in the person of the monarch has tended sometimes to obscure his doctrine here, just as Hobbes’s tendency to express himself slightly ajar of his technical description of the sovereign when speaking of the leviathan as a single person has led to similar mistaken interpretations. Insisting that sovereignty must have a specific locus, Bodin proceeded to maintain only three possibilities: a single individual, several individuals operating as a group, or all the citizens taken together, thus reiterating the classical Greek division of types of polity: monarchy, aristocracy, and democracy. Careful and systematic on the point, he rejected the standard division between good and bad forms of polity: the only logical principle of division was the number of individuals exercising sovereignty, and the quality of their rule was irrelevant. Accordingly, there were only three, not six, forms of polity. Critical of those who would list more, he identified Polybius as the originator of a list of seven, the seventh being a mixed form; and he cited several 83 Bodin, Commonweale, 84. Again we see here something found later in Hobbes – self-congratulation about a “first achievement”; in Hobbes’s case it was the first formulation of a genuine “science of politics”: Thomas Hobbes, “Epistle dedicatory” to De corpore, in Sir Thomas Molesworth, ed., The English Works of Thomas Hobbes, 11 vols. (London: Bohn 1839–45; rpt. Aalen Scientia, 1962), 1: ix. Bodin’s own earlier self-assessment notwithstanding, Hobbes considered his formulation the more scientific, perhaps because he viewed his own grounding of the “science” of politics in an “artificial man,” rather than as a deduction from the concept of sovereignty, as more scientific. 84 Bodin, Commonweale, 1, 84.

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modern authorities, such as Machiavelli and Thomas More, who had fallen into this error.85 Actually, of course, it was Aristotle who had popularized the six forms of polity, using the original Platonic division and applying, somewhat inadequately, the division between good and bad also found in Plato. Bodin was most interested, however, in rejecting the seventh form, the so-called mixed monarchy mentioned frequently in medieval and later political writings as the best form of government because it was the model expressed in the Israelite community before God reluctantly granted its request for a monarchy like those of “other nations.”86 The mixed monarchy also had become the choice among Huguenot publicists, precisely those whom Bodin was most anxious to rebut. For him a mixed monarchy was simple nonsense: sovereignty had to exist in only one locus and not be spread over three elements. Here Bodin is once again engaged in analysis of the notion of sovereignty. By definition, so to speak, sovereignty in a state cannot be divided; he accepts that administration in a polity is divisible, but not sovereignty.87 Another significant feature of Bodin’s concept of sovereignty was his emphasis on its law-making function. Identifying this as the first mark of a sovereign, he placed it front and centre as the essential function in a commonweal. The centuries-old general conception of the monarch as adjudicator among his subjects and as responsible for providing justice in his domain was still to be found among other sixteenth-century juridical writers; but Bodin’s position laid the fundamental emphasis on lawmaking as the main function of the sovereign, and his language here was strikingly close to Austin’s later legal positivism. Asserting that civil law, positive law, is simply “the command of a sovereign concerning all his subjects,”88 he spoke of it being “the first and 85 Ibid., 184. 86 Cf. supra, 31. 87 Bodin, Commonweale (1961), 2.7, 239 and (1586), 2.7, 234; cf. (1961), 1013–14 and 181–85. Franklin considered this position incoherent and the cause of serious defects in Bodin’s doctrine. The more logically inclined medieval political writers, such as Thomas Aquinas, also stressed the need for one supreme authority in expressing a preference for monarchy as the best form of government. For example, Thomas Aquinas, even though he also accepted and arguably preferred the mixed model. See Thomas Aquinas, On Kingship, trans. Gerald B. Phelan, rev. I. Eschmann (Toronto: Pontifical Institute of Mediaeval Studies, 1982), 1.2.19. A fine recent study of how medieval thinkers treated the mixed model is James H. Blythe, Ideal Government and the Mixed Constitution in the Middle Ages (Princeton, NJ: Princeton University Press, 1992). 88 Bodin, Commonweale, 92, 156.

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chief mark of a sovereign prince to give laws to all his subjects … giving all laws to the subjects in general without their consent”;89 and he went on to define law as essentially the commands of a sovereign: “the laws of a sovereign prince, although they be grounded on good and lively reasons, depend nevertheless upon nothing but his mere and frank good will.”90 Bodin thus can be seen as suspended both historically and ideologically between Marsilius of Padua and John Austin. It follows, naturally, that the king is above the law as totally “acquitted” from any legal obligation to obey the positive laws of his own state; he is “exempted from the laws of his predecessors [and can] never be subject to his own laws inasmuch as there can be no obligation which takes its state from the mere will of him that promises the same,”91 a point that has become a commonplace of much modern legal theory: the sovereign can promise, but promises in themselves carry no weight of legal obligation. The same arguments in virtually the same language can be found centuries earlier in medieval papal monarchical descriptions of the pope’s plenitudo potestatis; and although the terms “sovereignty” and “sovereign,” as well as the language of an absolute authority construed as “promising,” are not in the medieval texts, the notions generally understood by these modern terms are.92 Bodin’s view seems to entail the notion that one can discover an underlying structure of concepts constituting the nature of law and polity as such. Furthermore, Bodin was convinced of his success on this score. He informed his readers that his kind of scientific study of the legal systems of “France, Spain, England, Scotland, Turkey, Muscovy, Tartary, Persia, Ethiopia, India and almost all the kingdoms of Africa and Asia” showed that an absolute and irresistible sovereign power was a central feature in each of these states.93 His conclusion, then, generalized to be scientific in mode, was that this must be part of the definition of any viable state. Bodin considered that he had achieved what appeared as only an aspiration or possibility for natural law theorists who, from the Stoics through medieval exponents, humanists, and Spanish neo-scholastics, had insisted without any adequate specification that the univocity of human nature assured a basic set of uniform requirements and forms of social behaviour across a spectrum of historical, cultural, and geographic variables. Bodin’s novelty was precisely to have engaged in the evidencegathering activity on the issue needed to draw empirically based general 89 90 91 92 93

Ibid., 98; cf. 153, 159. Bodin, Commonweale, 92, 156. Ibid., 91–92. Cf. Monahan, From Duties towards Rights, 81, 115. Bodin, Commonweale, 222.

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conclusions that he considered to be scientific. While thus moving methodologically towards a scientific description of the nature of polity, however, Bodin willy-nilly could only base his generalized conclusions on the evidence actually available to him. And one result of this was his emphasis on the apparently universal character of sovereignty as embodied in a monarchy. This has led to an earlier conventional interpretation of Bodin’s Commonweale as a virtually unalloyed advocacy for political absolutism, though the more recent tendency to mitigate this judgment by taking into account his willingness to examine limitations on the French monarch’s prerogatives seems more accurate. As already noted, however, several features of the Commonweale do exhibit greater emphasis on the royal prerogative and, thus, the absolute role of the monarchy than what is found in the Method. This shows that, in the ten years between the Method and the Commonweale, Bodin clearly changed his views in some respects about citizens’ rights, especially as regards their role in the exercise of political authority. He excised notions concerning specific constitutional limitations on the sovereign from the later work. A major example was his retention of only the leges imperii as recognized constraints on the sovereign’s ability to make law. Drawing a distinction in the Commonweale between law and custom, he rejected the view that the ruler was limited by custom: “Custom has no force but by sufferance, and so long as it pleases the sovereign prince”; the prince was the sole authority who could convert a custom into a law, “by putting thereunto his confirmation.” Further, the power of custom was dependent on the prince because “the whole force of law and custom lies in the power of him that has the sovereignty in a commonwealth.”94 And he made the same point when insisting that the sovereign was not bound by any of his own oaths to protect the custom of the land, not even the coronation oath: here he took a clear shot at the Hotman and Beza reference to this oath as grounds for resistance to tyranny.95 Bodin’s location of sovereignty in only one feature of a polity also served to mark the diminishing emphasis on constitutionalism in the Commonweale. His argument in the earlier text regarding the illogicality of a mixed monarchy was extended in the later one when he stated that those who describe the French monarchy as “mixed and composed of three kinds of commonwealth [were guilty of preaching treason]: it is high treason to make a subject equal to the king.”96 He stressed the 94 Ibid., 161. 95 Cf. Monahan, From Duties towards Rights: for Beza, p. 45; for Hotman, p. 239; for Mornay, p. 261. 96 Bodin, Commonweale, 191.

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point that, logically, there are only two classes of political unit in a commonwealth – sovereign and subject – and that these two are not only not interchangeable but also mutually exclusive. Also, where the Method had stressed the function of parlement in terms of consultation and consent for establishing and implementing law, Bodin later narrowly restricted this function to legislation on taxation as approved by the Estates General. Except in this case the Commonweale categorically rejected any requirement for the monarch to obtain consent from the estates, though it did concede that the custom in France had been for laws to have been changed only “after general assembly of the Three Estates.”97 However, it was not “necessary for the king to rest on their advice [it being always open to him to] do the contrary to that they demand if natural reason and justice so require.”98 Bodin also excluded from the Commonweale his earlier reference to the coronation oath as an important example of how the monarch bound himself to the people by a form of legal contract. Apparently aware by 1576 of the popular elective implications of this position, and presumably aware also of how both Hotman and Beza had fastened on to the Aragonese coronation oath to show the people’s right of resistance to a ruler who broke his coronation contract, Bodin simply repudiated his earlier doctrine. Referring directly to the coronation oath issue, he asserted that those who mentioned it in order to “make a confusion of laws of a prince’s contract” were seriously in error.99 The sovereign, he went on, was limited in the exercise of his authority only “as right and justice require.”100 A prince must always be free against any charge of perjury whenever he determines that “the reason and equity” of any oaths or promises he may have made have disappeared, and he acts then to “frustrate and disanull [them. To maintain that] princes should be bound by oaths to keep the laws and customs of the country [is to] overthrow all the rights of sovereign majesty.”101 Bodin also rejected as false and pernicious his earlier view that the Parlement of Paris possessed veto authority over royal laws or proclamations.102 Moving explicitly to oppose those who wished “to take up arms 97 Ibid. 98 Bodin, Commonweale, 95. Note here, however, the explicit references to “natural reason and justice.” Clearly Bodin continues to acknowledge moral limits to sovereignty. 99 Bodin, Commonweale, 92; cf. Method, 204. 100 Bodin, Commonweale, 94. 101 Ibid., 101. 102 Bodin, Method, 254.

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against their prince” by arguing that judges could refuse “to verify and put into execution the edicts and commands of their prince” – the Calvinist lesser magistrates argument – he held that such a doctrine was “contrary to right and law” as well as a falsification of French history. He located the origins of the true relationship between French Crown and parlement in Philip the Fair’s action to make parlement “an ordinary court,” noting that Philip’s purpose was precisely “to take from [parlement] the dealing with the affairs of state” and that he had “advised the court to meddle only with the deciding of controversies and the equal administration of justice[, warning its officers] not to become his tutors or protectors of the realm.”103 Francis I, Bodin continued, had settled the matter formally by issuing a decree “whereby the Parlement of Paris was forbidden … to call into question the laws or decrees proceeding from the king concerning matters of state.”104 Finally, Bodin also reversed himself on the issue of an independent judiciary. He had maintained in the Method a view first expressed in a French context by Seyssel – that magistrates should not hold office merely at the monarch’s pleasure and ought to be secure (in tenure) except for the commission of “serious crimes,” accepting the Azo side of the Azo/Lothair argument about whether only the prince was sovereign. In the Commonweale, however, he held that all magisterial and judicial power derived completely from the sovereign. Discussing the matter at length in a chapter entitled “The power and authority of a magistrate,” he again referred to the Azo/Lothair controversy but concluded this time that the way “to decide the general question” between them was to recognize that all “magistrates and commissioners [are] mere executors and ministers of the laws and of princes, [not holding] any power in this point or this respect in themselves.”105 Where he had said in the earlier crucial chapter, “On sovereignty,” that a sovereign could delegate his authority, he now clarified this to mean that, delegation notwithstanding, the sovereign always remained able to “take to himself the examination and deciding of such things as he has committed to his magistrates or officers [and at any time] take [back] the power given them by virtue of their commission or institution, or suffer them to hold it so long as shall please him.”106

103 104 105 106

Bodin, Commonweale, 266. Ibid., 267. Ibid., 333; he reviews the Azo/Lothair argument at pp. 325–42. Bodin, Commonweale, 85.

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johannes althusius The most authoritative as well as the most systematic political thinker between Bodin and Hobbes was Johannes Althusius. He was born in 1557 in Diedenshausen, Westphalia, but little is known of his early years. Apparently he studied Aristotle at Cologne in 1581, earned a doctorate in the two laws at Basle in 1586, and published his first work, De ortu jurisprudentiae Romanae, the same year. He immediately took an academic appointment at the Reformed Herborn Academy, founded by Count John of Nassau just two years earlier, and was named its rector in 1597 after some months of theological studies at Heidelberg. He published an important work on ethics in 1601, De civile conversatione; and his most important work, the political treatise Politica methodice digesta, came two years later. The acceptance and reputation accorded this latter treatise led to Althusius being invited to become Syndic of the East Friesland city of Emden: he accepted this post in 1604 and remained in it until his death in 1638, exercising an influence in both civic and ecclesiastical jurisdictions in Emden comparable to that of Calvin in Geneva. Althusius’s Politics underwent two editions and enlargements (1610 and 1614); and in 1618 he also published an immense work, the Dicaelogicae, that aimed to construct a single juridical system combining Biblical law with Roman law and a variety of customary law. While the contents of Althusius’s political doctrine exhibit few if any elements not seen in earlier writings on politics, particularly in the Huguenot publicist tracts on resistance, the manner in which he expressed his position brought an order and structure to his themes that established him as a careful and systematic thinker. Like Bodin, Althusius took very seriously the need to express himself in scientific and rational terms, making every effort to eliminate from his treatise anything involving religious or theological considerations that might be extraneous to the scientific limits of his subject (as well as anything equally unscientific because contingent). Modelling his work on Ramist logic, he sought to produce a science of politics free, as far as possible, from material belonging properly to other disciplines, especially theology, law, and ethics – though he did acknowledge some overlap between politics and the first two of these by specifically accepting that theology shared the Decalogue with politics and that the concept of sovereignty was a legitimate subject for both politics and law. He insisted, nonetheless, that in theology and jurisprudence politics should examine only those areas it shares with them, and that it should rigorously exclude any other theological and legal material. The stylistic consequences of this sustained commitment to

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proceed scientifically are not very attractive; but the contents of the major Althusian political treatise, Politics Methodically Set Forth, are clear and consistent with the structure and procedure it employs. Unfortunately, nothing can relieve the tedium of a complete reading of a text that aims at providing an exhaustive examination of all the historical evidence available to its author and that proceeds from the greater to the less universal by way of strict logical division and deduction.107 Althusius began the Politics with a general definition of his subject: politics is “the art of associating persons for the purpose of establishing, cultivating and conserving social life among them,” and he proceeded immediately to identify its subject matter as “association [consociatio] in which the symbiotes pledge themselves each to the other, by explicit agreement, to mutual communication of whatever is useful and necessary for the harmonious exercise of social life.”108 Following the standard Aristotelian approach, he emphasized self-insufficiency in the individual human, for which political society provides the needed supplement, while also expressing the standard Christian addendum that “the end of the political ’symbiotic’ human is a holy [sic], just, comfortable and happy symbiosis, a life lacking nothing either necessary or useful.”109 Althusius then moved up a graduated scale of human groupings, family, collegium (civil association), city, province, to the highest 107 Althusius states his purpose and method in the Prefaces to the several editions of his work: see the Prefaces to the first and third editions. Where possible I use the English translation and abridged Carney edition: The Politics of Johannes Althusius, tr. Frederick S. Carney (Boston: Beacon Press, 1964). The two prefaces are in this edition at pp. 1–11. For the most part the Carney abridgment simply omits the extensive, elaborate, and exhausting Althusian critical apparatus of citations and quotations from sources used. A reprint of the third edition of the Politics (1614) has been published recently (Aalen: Scientia Verlag, 1960); and an incomplete version of the same text is Althusius, Politica methodice digesta, ed. Carl J. Friedrich (Cambridge, MA: Harvard University Press, 1932). The introduction to this edition is very useful. 108 Althusius, Politics 1:12. 109 Ibid. This is not to say that Aristotle declined to include an ethical component in describing the purpose of a polity but only that Christian exponents of his theory always construed the Aristotelian good life as entailing eternal salvation achieved through adherence to the true religion. Accordingly, then, political authority had direct obligations in respect of religion – obligations to ensure that citizens were “holy and pious” in order that they might merit eternal salvation.

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and fullest, the locus of political sovereignty, which he termed “the universal and major public association,”110 a kind of federation or confederation of lesser political and public groups, an association [wherein] many cities and provinces obligate themselves to hold, organize, use and defend, through their common energies and expenditures, the right of the realm [ius regni] in the mutual communication of things and services. For without these supports and the right of communication a pious and just life cannot be established, fostered and preserved in universal social life.111

Consistent here with his background and professional interests as a Calvinist intellectual familiar with contemporary conditions in both Switzerland and the Netherlands, even though he was neither Swiss nor Dutch, Althusius presented an overall theory of polity suitable for and reflective of a federal state – that is, a polity that brought together subordinate private and public groupings under an umbrella entity that alone possessed the characteristic of sovereignty. While stressing the subordination of lesser groupings to the universal sovereign polity, however, Althusius also insisted on the element of symbiosis, by which he meant the mutual interrelation and interdependence between the political whole and its parts. Only the commonwealth possesses sovereignty, however; sovereignty resides there symbiotically insofar as ultimate authority is a function of the services the commonwealth dispenses to its components while, at the same time, these components are the source of the authority employed in providing services to them. Althusius referred to the commonwealth itself as the people: it is a mixed society, constituted partly from private, natural, necessary, and voluntary societies, partly from public societies. It is at the same time a universal association – a polity in the fullest sense, an imperium, realm, commonwealth, and people united in one body by the agreement of many symbiotic associations and particular bodies and brought together under one right. And he stated clearly that “ownership of a realm belongs to the people … although [citing Cicero 110 Althusius, Politics, 9:61. 111 Ibid. Friedrich points out that Althusius distinguished specifically between federal and confederal in his description of the ultimate polity, thus making it clear that he envisaged a grouping of polities, each of them sovereign in its own right, in a more transcendental unity wherein, by mutual agreement, they might cede certain aspects of sovereignty to a higher level of international cooperation. See “Preface” to Althusius, Politics, viii-ix.

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by way of St. Augustine] it may be well and justly ruled either by a king, by a few optimates or by the whole people.”112 For Althusius, a kind of organic and two-way relationship exists between commonwealth and its component parts, both individual subjects and lesser public political groupings. The latter, however, mediate between individuals and the universal association or commonwealth, such that individual citizens do not relate directly to the sovereign authority. Althusius was careful, however, not to identify the commonwealth as a collection of individual subjects: The members of a realm are not, I say, individual persons, families or collegia, as in a private or a particular public association. Instead, members are many cities, provinces and regions agreeing among themselves on a single body constituted by mutual union and communication … individual citizens, families and collegia are not members of a realm just as boards, nails and pegs are not considered parts of a ship, nor rocks, beams and cement parts of a house.113

But he was equally insistent that the basis of a commonwealth’s sovereign power was popular consent: “The bond of this body and association is consensus, together with trust extended and accepted among the members of the commonwealth.”114 The commonwealth, then, was a collection of lesser levels of political reality administered by lesser types of magisterial officials. These officials, whom Althusius did not hesitate to call ephors, lacked political authority in their own right (except in emergency situations) and 112 Althusius, Politics, 9:61–62. Cf. Cicero, Republic 3:27; Augustine, City of God 2:21; cf. Cicero, Republic 1:26. Althusius’s method, which involves extensive citation of sources, makes it possible to see what contemporary sources were at work in shaping his position. He named three contemporaries in particular with whom he seems to have had considerable intellectual sympathy: Diego Covarruvias, a Spanish theologian high among advisors to both Charles v and Philip ii, member of the Council of Trent, and later president of the council of state in Seville (Althusius mentions him specifically in the Preface to the first edition of the Politics as someone who agreed that ultimate power in the state rested in the organized community – a standard Spanish neo-scholastic view, of course); Tobias Paurmeister, a critic of Bodin’s views as applied to the Holy Roman Empire of his day; and Sir Thomas Smith, from whom Althusius derived most of his knowledge of the English scene. 113 Althusius, Politics 9:62. While his position is clear enough the image he uses to convey it is not particularly apt. 114 Ibid.

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functioned as administrators for the supreme magistrate or ruler who was himself also an administrator, not an “owner.” The specific functions of the ephoral group were five in number: to exercise supreme authority when the office of chief magistrate was vacant; to restrain the chief magistrate within the proper limits of his office; to remove him if he became tyrannical; to defend him from detractors; and to serve as trustees of the realm in any interregnum.115 Following earlier Reformer resistance theorists with whom he was fully familiar, Althusius asserted that the supreme magistrate held office through election by the people and inauguration into office, with an agreement to the terms of his election in whatever form represented the established practice of the realm: this might be no more specific than the informal custom of accepting hereditary succession. A double or mutual oath was sworn at a chief magistrate’s inauguration: the ruler-designate swore to uphold the law of the realm and any special conditions involved in the election, and the people promised obedience under the same conditions through the ephors. And Althusius also employed the notion of a religious covenant between God and the commonwealth found in Mornay’s Vindiciae (1574),116 and he made it clear as well that he disagreed with Bodin regarding the locus of supreme authority in the commonwealth. Noting that Bodin described the right of sovereignty as “a supreme and perpetual power limited neither by law [lex] nor time, [Althusius commented,] I recognize neither of these two attributes of the rights of sovereignty … [it] is not supreme because all human power acknowledges divine and natural law as superior.”117 We have already seen that Bodin conceded as much.118 But while Althusius admitted that Bodin also accepted limitations on the sovereign from both divine and natural law, he still found grounds for disagreeing with his predecessor insofar as Bodin had denied that the sovereign was subject to the law of his own realm. Here Althusius was a rigorous traditional natural law theorist: “There is no civil law, nor can there be any, in which something of natural and divine immutable equity is not mixed. If it departs entirely from the judgment of natural and divine law, it is not to be called law. It is entirely unworthy of this name, and can obligate no one against natural and divine equity. Therefore, if a

115 116 117 118

Althusius, Politics, 18:87–114. Cf. Monahan, From Duties towards Rights, 265–67. Althusius, Politics 9:66. See supra, 36.

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general civil law enacted by a prince is fair and just, who can free him from the obligations of this very law?”119 Althusius took equally explicit issue with Bodin on whether either the supreme ruler or “optimates” were the seat of sovereignty: It [sovereignty] is to be attributed rightfully only to the body of a universal association, viz., to a commonwealth or realm, and as belonging to it. From this body, after God, every legal power flows to those we call kings or optimates. Therefore the king, prince or optimates recognize this associated body as their superior, by which they are constituted, removed, exiled and deprived of authority … the king does not have a supreme and perpetual power above the law, and consequently neither are the rights of sovereignty his own property, although he may have the administration and exercise of them by concession from the associated body. And only so far are the rights of sovereignty ceded and handed over to another that they never become his own property.120

In his stand against Bodin Althusius specifically brought in more material than can be found in the works of most of the resistance publicists: restatements of Spanish neo-Thomist and medieval jurisprudential thought that he acknowledged directly by citations to Bartolus of Sassoferrato and Vasquez as well as Augustine.121 The third edition of the Politics (1614), the last and most authoritative, had a late section devoted to tyranny and its remedies (Chapter 38) that did not appear in the 1603 edition, even though the addition contains nothing more than a consistent extension of earlier material, especially the section on ephors and their function in the state (Chapter 18). Focusing on the issue of a ruler exercising tyranny while in 119 Althusius, Politics 9:67. Cf. Thomas Aquinas, ST 1–2:94. Friedrich considered Althusius’s dependence on natural law theory as problematic insofar as he tended to emphasize politics as basically a descriptive science whose structure emerges from a review of the empirical data available in history; and Friedrich took Gierke to task for contending that Althusius tended to identify politics and its tenets with the laws of nature. But the fundamental appeal here to natural law suggests that Friedrich is mistaken in interpreting Althusius as deriving the contents and even the formal structure of law from empirical data and, thereby, precluding the notion that positive law must be consistent with natural law, especially if it is agreed that the general principle is that the element of continuity between them is rationality. See Friedrich, “Introduction” to his edition of the Politics, lxiv. 120 Althusius, Politics, 9:67–68. 121 On Bartolus of Sassoferrato, cf. Monahan, From Duties towards Rights, 21–23.

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office,122 Althusius started out slowly by asserting that a ruler who “has failed only in some part of his office or government … is not immediately to be called a tyrant … nor is one to be treated as a tyrant who, having already started on the road to tyranny, nevertheless does not obstinately and insanely persist on it … [moreover] the wicked [personal] life of a magistrate does not invalidate his royal authority.”123 He then identified two forms of the practice of tyranny: one, “concerned with the overthrow and destruction of the fundamental laws of the realm,” the other “in the administration of functions and things of the associated body in a manner that is contrary to piety and justice,” with the latter type subdivided further into two forms – general and special.124 The remedy for tyranny entails its removal; and here responsibility falls on the lesser magistrates, the ephors or “optimates of the realm [who] collectively and individually can and should resist tyranny to the best of their ability. For since they have the right of creating the magistrate by the consent and command of the people, they also receive the power of judging and deposing him.” The range of Althusius’s citations on this point again shows his willingness to employ any sources that suit his case – philosophical, legal and theological, Protestant and Catholic. He mentioned specifically Zachary Ursinus, Theodore Beza, Peter Gregory, Juan Mariana, Francis Zoannet, Lambert Daneau, and Otto Cassman, along with several references to Roman civil law.125 But Althusius went beyond identifying the ephors or lesser magistrates as a legitimate instrument of resistance. He made explicit reference to what, except for the rough and ready public rhetoric of John Knox and the anonymous glosses in the Geneva Bible, had only been implicit in Reformation resistance writings and that had been explicitly rejected in traditional theories of tyranny such as that of Aquinas: action by an individual or by private citizens. Asserting that the ephors derived their authority to resist tyranny by virtue of holding public office themselves, and literally denying the right of resistance to individual citizens, he nonetheless 122 Althusius did not consider that the first of the two traditional medieval categories of tyrant, one who simply seized power (tyrannus absque titulo), fitted the formal definition of tyrant: his definition excluded anyone lacking a genuine mandate to exercise political authority. Only a practising tyrant (tyrannus exercitio), then, was a genuine tyrant; cf. Althusius, Politics, 38:186, note 3. He did consider the category tyrannus absque titulo, however, when discussing the obligations of ephors in the face of tyranny. See Althusius, Politics, 38:188. 123 Althusius, Politics, 38:185–86. 124 Ibid., 186–87. 125 Ibid., 187 and note 4.

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assigned both a right and a responsibility to individual citizens to engage in deposing a tyrant in support of ephoral actions: “Subjects and citizens who love their country and resist a tyrant, and want the commonwealth and its rights to be safe and sound, should join themselves to a resisting ephor or optimate. Those who refuse to help the resisting ephor with their strength, money and counsel are considered enemies and deserters.“126 And, in the final analysis, Althusius also attributed a qualified right to individual citizens to resist the tyranny of lesser magistrates.127 Unfortunately, the methodological character of his argument here obscures somewhat the implications of his position because it speaks directly about the tyranny of a lesser magistrate rather than that of the ruler. Thus, he describes only what an individual can do directly against an ephor and not what he can do against the supreme ruler: Althusius’s methodological structure always placed lesser magistrates or optimates between individual citizens and the ruler. But the logic seems clear enough: What, then, is to be decided about private subjects from among the people? For the position we have thus far taken about the ephors applies only to public persons. It plainly does not apply to private persons when the magistrate is a tyrant by practice because they do not have the use and right of the sword [usus et jus gladii], nor may they employ this right … This is to be understood, however, in such a manner that these private persons are not forced to be servants of tyranny, or to do anything that is contrary to God. Under these circumstances they should flee to another place so that they avoid obedience not by resisting, but by fleeing. Nevertheless, when manifest force is applied by the magistrate to private persons, then in case of the need to defend their lives resistance is permitted to them. For in this case private persons are armed against the magistrate who lays violent hands upon them by the natural law and the arrangements constituting kings.128

Had Althusius been more inclined than he was to employ legal concepts in argumentation, he might well have appealed here to the principle that “necessity knows no limits”; this clearly is what he had in mind when he asserted that “the natural law and the arrangements constituting kings [sic]” justify an individual citizen resisting tyranny.129 This is 126 Ibid. 127 Althusius, Politics, 188. 128 Althusius, Politics, 38:190. 129 It is interesting to compare the Althusian idea of an individual citizen’s “right of revolt” to Locke’s more explicit claim of an individual’s right to reject monarchical power. Cf. infra, 170.

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the closest we have seen anyone come in a formally expressed “scientific” political theory to legitimizing resistance to tyranny by an individual citizen. It is clear that Althusius still wished to maintain the traditional distinction between an individual as private or public: the problematic of outright advocacy of what would be seen by many as encouragement to political chaos quite properly remained an issue. But while no one in the first years of the seventeenth century could remain insensitive to the tragic consequences of persons taking and having taken military action in defence of what they saw as tyranny against their religious rights, it was equally clear that the preservation and expression of these rights seemed to require resistance to ordinary political authority in some jurisdictions, and this was especially so for the Huguenots and Calvinists in France. Althusius was certainly more forthcoming and consistent on this score than was Bodin, at least with respect to their respective publicly expressed views. hugo grotius Born into the Calvinist religious tradition in Delft on 10 April 1583, Hugo Grotius was educated at Leiden University from 1594 to 1597 at an astoundingly young age (eleven to fourteen) and during the heyday of Protestant Aristotelianism. He subsequently studied law in the juristic humanist tradition at Orléans from 1597 to 1599. An obviously precocious student, he completed his formal university education at sixteen and returned to the Netherlands to complete the professional aspect of his legal studies before embarking on a brilliant career in the law. His first work in political thought, the Parallelon rerum publicarum, was completed in 1602 when he was only nineteen. Obviously grounded in the traditional humanist advocacy of “liberty,” it was a never-published comparative study of the mixed constitutions of three states – Athens, Rome, and the contemporary Netherlands – and stressed how each safeguarded the essential feature of a polity. Grotius later produced a number of well known and influential writings in jurisprudence and political thought, and he enjoyed a considerable reputation as a scholar and legal authority in his lifetime. On the wrong side of a long-standing religious dispute among his Calvinist fellow citizens in the late 1610s, he was imprisoned by the Dutch authorities in 1619, escaping in 1624 with his wife’s assistance and fleeing to Paris, where he enjoyed the favour of Louis xii for some time before accepting an appointment as Swedish ambassador to the French court. Grotius died at Rostock on 28 August 1645, on a journey

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of final return to his homeland after being recalled by his royal employer to Stockholm and declining an invitation to live in Sweden.130 Grotius was in many ways the most famous and brilliant political theorist of his day as well as, arguably, the most creative, his writings exhibiting a magisterial sweep and tone quite distinct from those of the majority of his academic contemporaries and other late sixteenth-century political publicists. His first work to show real genius in setting out a personal path in political and legal thought was the De iure praedae (1607), written five years after the Parallelon when Grotius was twenty-four. Except for one chapter printed in 1609 as the famous Mare liberum, however, it remained in manuscript form for more than two hundred and fifty years until discovered in a sale of Grotian manuscripts in 1864.131 The Mare liberum portion of the work had acquired distinct status in the early seventeenth century as a document prepared to support Dutch claims for maritime and fishing rights against competing English interests. This work’s historical interest lies in its transitional character between the classic Grotian statement on law and political theory in the De iure belli (1624) and the more conventional Protestant Aristotelian formulations of the late sixteenth century. Grotius set down many ideas in the De iure praedae found later in the De iure belli, although these first formulations reflected the providentialist and divine voluntarist frame of reference of his educational background. Although his early theory of justice was clearly Aristotelian, it was also clearly set in the voluntarist Protestant perspective of law as the will of God: Quod Deus se velle significat, id ius est.132 Grotius described God’s will in terms of the innate sociability of humans, to which all natural laws were to be related; however, he provided some evidence 130 Tuck, Natural Rights, 59. The basic sources and editions for Grotius are Grotius, De jure belli ac pacis, ed. P.C. Molhugsen et al. (Leiden: E.J. Brill, 1919); De jure belli ac pacis libri tres. ed. B.J.A. DeKanter-van Hettinger Tromp (Leiden: E.J. Brill, 1939); De iure belli ac pacis libri tres, 3 vols., tr. Francis W. Kelsey (Oxford: Clarendon Press, 1925: or. ed. 1913); De iure praedo commentarius, tr. G.A. Finch, 2 vols. (Oxford: Clarendon Press, 1950). The most recent authoritative secondary literature treating Grotius’s political and legal theory, in addition to Tuck, are: Peter Haggenbacher, Grotius et la doctrine de la guerre juste (Paris: Presses universitaires de France, 1983); and A. Dufour, “Grotius et le Droit naturel du dixseptième siècle,” in World of Grotius (1503–1645): Proceedings of the International Colloquium organized by the Grotius Committee of the Royal Netherlands Academy of Arts and Science, Rotterdam, 6–9 April, 1983 (Amsterdam: APA, 1984), 15–42. 131 Tuck, Natural Rights, 59. 132 Grotius, De iure praedae, 7; Eng. tr. p. 8.

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for his ultimate move away from a Protestant religious account of law towards a natural law theory (although he showed little familiarity with the late scholastic natural law theorists among Dominicans and Jesuits). The only contemporary scholastic political theorist with whom he apparently had any acquaintance and whom he cited with approval in the De iure praedae was the Spanish Jesuit, Gabriel Vasquez (1549– 1604). But leaving aside, at least for the moment, the issue of influences and sources from which he might have developed his views, Grotius’s willingness to move closer to the Aristotelian philosophical tradition in his account of the nature of law is fully articulated in the later De iure belli; there are clear parallels between his mature thought here and the thought of scholastics like Molina and Suárez concerning the origin and nature of political society and individual subjects’ rights within a polity.133 The critical component in Grotius’s political thought in an appreciation of his contribution to the history of Western political theory was his doctrine of property, its importance in a polity, and the obligations political authority has with respect to it. A shift in ideological focus can be identified here, from the issue of the relationship between political authority and individual subjects within a polity (considered as elements in some kind of functional whole) to that of the obligations political authority has towards its subjects (who are considered to possess individual values that limit what a sovereign can do on their behalf). The general concept of limit continues to function regarding how authority is to be exercised; but the tendency becomes more one of describing the limits in terms of what “citizen/subjects” are in themselves, and as having rights a sovereign must recognize and protect, than of delineating limits in terms of fulfilling the purposes of political society as a whole. Both foci still must be sustained in some way, of course, as had been the case in medieval theories of polity: the idea that individuals had rights of their own over which a ruler, prince, or pope had no jurisdiction, the concept of dominium as pertaining to individuals and corporations rather than rulers, was clear at least from the time of John of Paris in the early fourteenth century (and even earlier among both civilian and canonical jurists of the 133 Tuck uses Grotius as the bellwether from whom two antithetical streams of seventeenth-century political thought developed: the natural rights advocacy of men like John Selden in the run-up to the English Civil War and Interregnum period, and the more qualified yet more radical rights theory of John Locke, for whom the Grotian concept of charity was given a more adequate conceptual base as grounded in medieval political thought. See Tuck, Natural Rights, 59–62.

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twelfth and thirteenth centuries).134 There were also clear intimations of this, moreover, in some resistance publicist literature, such as Mornay’s Vindiciae contra tyrannos, as well as in Althusius’s position that the ruler exercised authority for the good of individual citizens and the protection of their property.135 But with Grotius and his successors the particular focus on individual property rights became clearer and closer to modern notions of political sovereignty and to the obligations the state has towards its citizens as individual persons. The general responsibility of political authority to provide protection for the well-being of its subjects becomes better specified in terms of what individual well-being entails when Grotius reiterates and expands the Bodinian emphasis on the individual’s right to property in Bodin’s doctrine on taxation as involving citizen’s consent. The basic element in Grotius’s doctrine was his theory of property (dominium) and the issue of whether the liberty possessed by every individual has the status of property tout simple: if so, in theory it can be alienated by its “owner” like any other form of property over which dominium is exercised, a point to be examined shortly along with Grotius’s conception of individual rights.136 The route Grotius took on this issue paralleled the analysis seen earlier among the Spanish neo-scholastics,137 and it focused on the condition of humans in the state of nature. He abandoned the views of his Protestant humanist background expressed in the De iure praedae in favour of a general preference for absolutism expressed in the De iure belli, for which he became famous (or notorious) in his own lifetime. The Mare liberum portion of the early text had made an ingenious link with current scholastic and humanist theories concerning the original state of nature in order to establish the Dutch right to exploit maritime 134 The articles of Brian Tierney, taken together, clearly show the error in the Villey thesis, which is that what today are called “subjective rights” had their origins in the nominalism of William of Ockham. See Brian Tierney, “Villey, Ockham and the Origin of Individual Rights,” in T. Witte and F.S. Alexander, eds., The Weightier Matters of the Law, A Tribute to Harold J. Berman (Atlanta: Scholars Press, 1988); “Conciliarism, Corporatism and Individualism: The Doctrine of Individual Rights in Gerson,” Cristianesimo nella storia 9 (1988): 81–111; “Origins of Natural Rights Language: Texts and Contexts, 1150–1250,” History of Political Thought” (1990): 1–32; “Marsilius on Rights,” Journal of the History of Ideas 52 (1991): 3–17. 135 Cf. Monahan, From Duties towards Rights, 265–72. For Althusius, see supra, . 136 See infra, 61-62. 137 See Monahan, From Duties towards Rights, 128–84 passim.

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resources by exercising dominion over the seas. To do this Grotius had both to deny that the oceans in any sense already “belonged” to anyone and to contend that they were nonetheless a legitimate object of possession or dominion, the latter being the more interesting challenge. Arguably, the oceans were prima facie common property rather than already “private”; the tricky legal point was to account for how something presumably common to begin with could come to be owned by individuals. Of course, this was the same problem facing any theorist wishing to explain how what was common in the beginning came legitimately into the possession of any individual, an issue addressed by all medieval and neo-scholastic political thinkers who began by accepting that “in the beginning all things were in common.”138 Locke later addressed the same issue directly with his unacknowledged but, obviously derived from Grotius, theory of appropriation by labour.139 Grotius began by asserting the centuries-old classical and Christian view that, in the beginning of human existence, all things were common in the state of nature, but he went on to reject the standard humanist stance that nothing like dominium existed at that time by suggesting that what the word “common” meant in the “early age” was very similar to what the word “private” means now.140 There was at least an analogical similarity: what was common in the state of nature were things towards which individuals have a natural aptitude to make their own. While not an actual quality of humans in the state of nature, dominion existed nonetheless as a natural tendency for individuals to take things into their own possession. The transition from things being common to being private, then, did not involve any great transition. Nor does the move from the state of nature to that of political society, except that in the latter case private ownership became a feature regulated by law. Grotius was striving here for rejection of the simple humanist notion that ownership is conventional, something brought about by consensual agreement among humans, and thus significantly different from the condition of nature wherein all individuals were free and independent. As Tuck puts it, Grotius wanted to maintain 138 Ibid., 140–41. 139 See infra, 173-75. 140 It should be recalled that Baldus de Ubaldus had used a similar argument concerning the natural character of citizenship: from the beginning individual humans were at least potentially citizens of a polity in virtue of the political and social aspects of their nature. See Monahan, From Duties towards Rights, 30.

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that “there was something natural in the development of the institution of private property from the basic and inherent right to use the material world, and no agreement was ever necessary.”141 What was necessary, and all that was necessary, was labour of some kind, action by individual humans to take physical possession of a material object or to alter or define it in some way: “With respect to movables, occupancy implies physical seizure; with respect to immovables, it implies some activity involving construction or the definition of boundaries.”142 Here Grotius had made a case for private exploitation of the seas without direct appeal either to dominion or to private property in the strict sense. Humans have the same rights over the oceans as they have over the land: original and natural rights that might be called quasi- or analogical dominion, something based in a human being’s nature disposing them to actual possession of material goods in virtue of their own activity. They can take the material things they want, satisfied that they have a right to do so. Further, they can protect this right against threats from others. The parallel with contemporary Spanish scholastic political thought is impossible to miss here; and Grotius himself acknowledged the Spanish Jesuit Vasquez as a source.143 The Spanish political thought tradition was well advanced by this time,144 with virtually a century of sustained development culminating in the magisterial writings of Grotius’s contemporary Suárez, with whom, however, the great Dutch legist does not seem to have been familiar. The more likely locus of contact between Grotius and 141 Tuck, Natural Rights, 61. Haggenmacher makes the same point, tying it directly to Grotius’s “very traditional views on the right of resistance”: while civil society as a purely human institution rests on a contract, the purpose of the contract essentially is to promote the “natural” society of humans, which is too fragile to exist as a mere collection of individuals without some constraints to give it adequate structure. The social contract, then, functions as a link between natural and civil law rather than, as later in Hobbes, as the cause of law itself. Accordingly, resistance to civil authority is resistance to what is natural. See Peter Haggenmacher, Grotius, 534; cf. 533, note 483. The Haggenbacher monograph represents the present state of the art of Grotian studies. 142 Grotius, De iure praedae, 217, tr. p. 229. 143 He cited Vasquez frequently in the De iure praedae. See Tuck, Natural Rights, 59–60. Cf. Antonio Truyol y Serra, “Grotius dans ses rapports avec les classiques espanols du droit des gens,” Recueil des cours de l’Académie de Droit internationale de La Haye 182 (1983): 431–51. 144 See Monahan, From Duties towards Rights, 128–84 passim.

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Spanish neo-scholasticism would have been the University of Louvain, where deliberate academic efforts had been made throughout the sixteenth century to offer a brand of scholastic thought different from the Spanish variety.145 Grotius was moving towards a much more atomistic theory of the state than had been seen previously, tending to describe political society as a kind of individual writ large: the state possesses only those rights formerly possessed by the individuals who make it up, and it is the same kind of moral entity. His theory of punishment as a state right, for example, later advanced by Locke, also illustrated the view that private individuals and states seem interchangeable with respect to property,146 although the perception that Grotius was moving in the direction of a doctrine of social atomism is more easily made with the virtue of hindsight; and, as we shall see, other aspects of his position substantially temper this interpretation.147

145 Tuck makes the interesting observation that the Grotian theory of property acquisition by exploitation “provided a useful ideology for competition over material resources in the non-European world, and had clearly begun the intellectual process that was to culminate in the competitive rights claims of the Hobbesian state of nature … [Grotius] also moved away from a humanist and Aristotelian moral theory close to the late medieval scholastic tradition, as his extensive quotations from Vasquez indicate.” See Tuck, Natural Rights, 62. These remarks require some qualification. The Grotian position did provide theoretical justification for acquisition of “new” territory, whether of land or sea, and the possibilities for competition in this regard were apparently open-ended; but just how much of this attitude marks a withdrawal from either humanist or Aristotelian moral theory is open to question. The dichotomy between competition and agreement (or convention in the case of humanist theory) and rational conclusions reached on teleological grounds (the fundamental Aristotelian ethical view) can be forced too simply. Humanists and Aristotelians did not enjoy exclusive occupancy of the moral high ground at the time, as the writings of Spanish neoscholastics such as Vitoria and Suárez amply attest and as Vitoria’s flat assertion that the Americas were already occupied and, hence, not “new” illustrates. And one should also not ignore the fact that Sepulvéda was a “humanist.” Cf. Monahan, From Duties towards Rights, 148–60; 176– 84. Moreover, the sixteenth-century Spanish political tradition was arguably as Aristotelian as it was “late medieval scholastic.” 146 Tuck, Natural Rights, 62–63. Tuck asserts that Grotius’s theory of property moved away from that of his Protestant contemporaries; but it is not clear that this is so. What exactly was the theory of his Protestant contemporaries? 147 See infra, 66, 78.

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Similarly, Grotius moved away from the resistance theory of the Protestant humanist tradition in favour of a reaffirmation of the traditional early Reformist doctrine stressing complete subjection of the individual to either a master or a sovereign.148 His attitude towards resistance did change, however, and seems to have done so as a result of his involvement in the Remonstrant/Counter-Remonstrant controversy in Dutch Calvinism, a contest similar in many ways to the predestination/free will debate within Roman Catholicism some twenty years earlier. Grotius supported the Arminian line of unqualified obedience to temporal authorities when the dispute first broke out, doing so arguably because the Arminian cause he favoured was receiving more support in secular circles at the time than it was among orthodox Dutch Calvinist authorities. His expressed preference for non-resistance even went beyond the standard Scriptural authorities normally invoked by Reformation thinkers when he inserted a new argument into his De imperio summarum potestatum circa sacra (1617, but only published posthumously in 1647). Examining the nature of sovereign authority he distinguished, but did not develop the distinction, between two types of association: one kept in being by the continuous consent of its members and the other, that in which sovereignty rested, where membership committed individuals to obedience even when the group’s leader might be acting against the rules of justice and equity.149 148 “Grotius was to become notorious after the publication of the De iure belli for his permissive attitude towards absolutism.” See Tuck, Natural Rights, 63. Tuck seems to overstress the liberalism of the earlier Grotian position, however, by juxtaposing what he refers to as “the liberal Protestant humanist tradition” with Grotius’s so-called later absolutism. While the Huguenot publicists argued strongly for resistance to their Catholic “tyrannical” rulers, there is little evidence they would have tolerated Catholic resistance to Protestant “tyrants.” See Craig E. Harline, Pamphlets, Printing, and Political Culture in the Early Dutch Republic (Dordrecht: Martinus Nijhoff, 1987). Hagenmacher also speaks of Grotius’s resistance theory in the de iure praedae as “very traditional.” See Haggenbacher, Grotius, 534 and supra, note 125. Further, Lecler’s general position in his standard examination of the concept of tolerance in the pre-Reformation and Reformation period, expressed in a somewhat overwrought manner that leaves him open to criticism as pro-Catholic, makes it fairly obvious that, especially among Calvinists, tolerance was considered a one-way street. See Joseph Lecler, Toleration, 1:325–60. 149 Grotius, “De imperio summarum potestatum circa sacra,” in Opera theologica (London: n.p., 1679), 3:212–16. On the general issue of contemporary Calvinism in the Netherlands, see D. Nobbes, Theocracy and Toleration: A Study of the Dispute in Dutch Calvinism from 1600 to 1650 (Cambridge: Cambridge University Press, 1938).

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Grotius’s next work in political theory, long recognized as important in Dutch jurisprudence but seldom seen as a positive step on the way to the magisterial De iure belli, was his Introduction to the Jurisprudence of Holland (Inleidinghe tot de Hollandsche Rechts-gheleertheydt), where he rejected an Aristotelian theory of justice. 150 This work, particularly in virtue of its definition of right, shows Grotius delineating the notion of law exclusively in terms of rights – the rights of others. For Grotius, law has to do with the maintenance of the rights of others, which rest on either property or merit. He speaks here of “the duty of benevolence, the duty of keeping faith, and the duty of making amends for wrongdoing,” the second and third being concerned exclusively with property with the first, broadly speaking, being involved with merit and relating to the distributive aspect of Aristotle’s basic distinction between distributive and commutative justice.151 This transformation from duties to rights was completed later in the De iure belli when Grotius explicitly rejected the Aristotelian frame of reference for examining the nature of justice. He also eliminated the notion of distributive justice because of his skepticism over whether and how the concept could function.152 Other aspects of the Jurisprudence text also show its transitional character between the original Grotian position and the definitive quasiabsolutist position presented in the De iure belli. His explication of an apparently natural law account of the nature of polity provided an opening for a theory of natural rights. The traditional natural law account of both medieval Christian thought and renaissance humanism placed primary emphasis on the nature of the material world as common, and it gave relatively little attention to notions like ownership in the state of nature. Without addressing the issue of rights directly in the Jurisprudence, Grotius had made a move more than suggestive of his final position in the De iure belli. Accepting the natural law view expressed in late scholastic political theory and already incorporated 150 Hugo Grotius, Introduction to the Jurisprudence of Holland (Inleidinghe tot de Hollandsche Rechts-gheleertheydt, ed. and trans. R.W. Lee (Oxford: Oxford University Press, 1926). This work has led Tuck to conclude that the Jurisprudence “constitutes the decisive move away from an Aristotelian theory of justice, and is in fact the first reconstruction of an actual legal system in terms of rights rather than laws. Consequently, it is the true ancestor of all the modern codes which have rights of various kinds at their centre.” See Tuck, Natural Rights, 66. 151 “Rights have come to usurp the whole of the natural law theory, for the law of nature is simply: respect one another’s rights.” See Tuck, Natural Rights, 67. 152 Tuck, Natural Rights, 62.

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into Reformation political thought in the resistance doctrines of Beza, Hotman, Mornay, and others – that is, that individuals come together to form political societies in virtue of common consent – Grotius thereupon made reference to another specifically Aristotelian ideological component to flesh out his explanation. This is something that had been explicitly expressed by Francesco Suárez: humans were naturally free to contract and consent to ways of regulating their relationship to property, and they did so through the use of the peculiarly human capacity of speech – communication via language.153 Aristotle, of course, had identified language as a peculiar characteristic of human beings, a point repeated many times by medieval commentators on the Politics but without any sustained analysis of its meaning. Grotius’s specific point was that speech provided humans with the ability to make promises to one another and that this, in turn, entailed their ability, through their own acts, to provide for promises being kept. Grotius thus began to express the notion of legal obligation in terms of the respective wills of contracting individuals. The result was to define positive law in terms of the rights of others, accepted through the consenting agreement of free individuals who make promises; and this placed more weight on the voluntary aspect of human behaviour than had previously been envisaged by traditional natural law thinkers. Even medieval Christian theologians predating Ockham and his voluntarist followers had always insisted that free consent to an action was an essential correlative to personal moral responsibility, but little or no emphasis was transferred from this description of personal moral judgments to parallel “natural” activities in the political order. There the tendency was to describe what was natural in the social and political order in passive rather than in active contractual terms. Another feature of the Jurisprudence text, however, was its continuing reflection of the traditional natural law view, which states that there are always limits upon a human’s natural liberty of action. Conceding that “the general claim that humans are naturally free to strike bargains in all kinds of ways over their property … had certain important qualifications,” Grotius identified four inalienable human characteristics, things no individual could contract away: life, body, freedom, and honour.154 The issue of squaring this view about human rights as inalienable with

153 Cf. Aristotle, Politics, 1.2,1253a10. 154 Grotius, Jurisprudence of Holland, 70–73.

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what Grotius said later concerning a free person’s ability to contract away everything has caused his interpreters some anguish.155 The principal statement of Grotius’s political philosophy in general and his rights theory in particular is, of course, the De iure belli, whose actual formulation may have been begun while its author was a prisoner of the Dutch authorities in Lowenstein Castle in the early 1620s for his heretical religious convictions, but whose conceptual outline and even detail Grotius must have been at work on earlier. The text was published in June 1625. Divided into three books, it first established definitions of war and law, and the licitness of war and its various types (Book 1); then it examined the causes of war and, following principles Grotius had used in the De iure praedae, the types of law that covered the whole of humankind, private, penal, constitutional, and international (Book 2); and finally it detailed the given legal rules for warfare (Book 3). As in the early De iure praedae, Grotius began by describing the Aristotelian notion of sociability as the fundamental feature of human beings; but he proceeded to describe its essential characteristics differently than the Philosopher or any of his commentators had done. And he went on to define the law governing the original conditions of nature, the natural law, in terms of rights rather than in terms of the Aristotelian concept of justice, with the result that the law’s content becomes explicitly what it had been in the Jurisprudence: a set of injunctions to respect the rights of others.156

155 Tuck considers Grotius to have been interested only in the issue of slavery, as a contractual possibility given with individual freedom, and insists that the ultimate Grotian position logically imposes no barrier on individual ability to contract away. He considers Grotius as both the first conservative rights theorist in Protestant Europe and the first radical rights theorist. See Tuck, Natural Rights, 71. It might be noted here that this radical expression of individuals’ right to enslave themselves is also found in Suárez as well as in Molina and in Sepulvéda’s argument justifying the Spanish colonial treatment of the indigenous peoples of the Americas. Cf. Monahan, From Duties towards Rights, 131, 176, 150–51. “It is lawful for a human to engage themself as a slave to whomever they please.” See Grotius, De iure belli, 1.38.1; cf. infra, 73-74, 77-78 and note 158. 156 “This sociability … or this care of maintaining society in a manner conformable to the light of human understanding, is the fountain of right, properly so-called; to which belongs the abstaining from that which is another’s, and the restitution of what we have of another’s, or of the profit we have made by it, the obligation of fulfilling promises.” (Grotius, De iure belli, Prolegomena, 8).

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A principal and telling consequence of this description of polity and the law of nature was to highlight the obligation to maintain social peace, whose principal feature was the respect individuals must have for the rights of others. It was but a short step to the assertion that preserving the property of individual citizens, a key feature of the social contract theory of polity, was the essential function of political society.157 Hobbes learned well from Grotius when repeating the view that peace required respect for and protection of property rights, disputes over which were the major cause of war.158 Grotius also spelled out carefully at the beginning of the De iure belli his non-Aristotelian sense of the meanings of justice and rights, maintaining that rights inhered in persons as well as in the relationship between individuals and material things to which they acquired rights by labour and other forms of “occupancy.”159 Tuck’s most recent analysis of Grotius’s political theory sees him as a genuinely creative thinker who transformed scholastic natural law theory and its attendant implications of constitutionalism into one whose origins lie in late renaissance humanist skepticism: Grotius expressed a “post-Tacitean” view in the traditional natural law form of discourse, but the character of his natural law position had been radically changed. See Tuck, Philosophy and Government, 154–201, xii-xv. This is an intriguing thesis, argued forcefully and at length; but I wonder how much weight should also be given, in regard to Grotius’s move away from the “rational” component in the traditional Aristotelian-Thomistic natural law theory, to the emergence in Reformation theology of a voluntarist conception of both the nature of the divinity and of “natural” human behaviour. Tuck also notes that the Spanish neo-scholastics Molina and Suárez were influenced away from the rationalist character of Thomistic political theory in favour of a more voluntarist mode of expression by the late medieval nominalist tradition. See Tuck, Philosophy and Government, 140. 157 “Right reason, and the nature of society … does not prohibit all manner of violence, but only that which is repugnant to society, that is, which invades another’s right: for the design of society is, that everyone should quietly enjoy their own, with the help, and by, the united force of the whole community.” See Grotius, De iure belli, 1.2.1.5. 158 Cf. Hobbes, Leviathan, 2:17. 159 “Another signification of the word ’right’ … relates directly to the person: in which sense right is a moral quality annexed to the person, enabling them to have, or do, something justly … under which are contained, 1. a power over ourselves … term’d liberty … over others … father over his children … lord over his slave. 2. property … 3. the faculty of demanding what is due.” See Grotius, De iure belli, 1.1.4–6. Cf. Tierney’s recent work on the medieval origins of rights theory. See supra, note 134.

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Grotius also offered in the De iure belli (Book 2, chapter 2) by far the most systematic treatment of the original state of nature and the transition from it to forms of polity, where incidentally he addressed squarely the issue of whether his account is historical or conceptual and, like Locke, but more assertively and in greater detail, came down on the side of historicism. For Grotius, as for other humanist legal theorists, like Bodin, the facts of history themselves reflected the conditions of nature; and his analysis of how material goods were originally held in common but came legitimately to be the property of individuals, and of how humans naturally free came to form political societies in which they were subject to a ruling authority, is in many ways the most interesting portion of the work. Among other things, it spells out details of a position later left very much unspecified by both Hobbes and Locke.160 Following the traditional but more vaguely expressed account of human social development based on the Christian Scriptures,161 Grotius accepted that, in the beginning, God decreed that the things of this world were common, and he went on to interpret this as follows: Soon after the creation of the world, and a second time after the Flood, God conferred on the human race a general right over things of a lower nature … in consequence, each man could at once take whatever he wished for his own needs, and could consume whatever was capable of being consumed. The enjoyment of this universal right then served the purpose of private ownership; for whatever each had thus taken for their own needs another could not take from them except by an unjust act.162

Grotius went on to assert that the original primitive condition of humankind’s relationship with material goods would have been maintained “if humans had continued in great simplicity, or had lived in terms of mutual affection such as rarely occurs.”163 This was not to be, 160 Hobbes, Leviathan, 1.13, 110–14; Locke, Second Treatise, 2.2.4–21. 161 Cf. the similar accounts in Aegidius of Rome, Aeneas Sylvio, Vitoria, Vivez et al., Monahan, From Duties towards Rights, 134–36, 140–41, 152–55. 162 Grotius, De iure belli 2.2.2.1, vol. 2, p. 186 in the James Brown Scott editon. If this account does not actually provide greater detail for the theory of property found in Locke’s Second Treatise, it clearly anticipates the Lockean view, and there can be little doubt that Locke was dependent on the Grotian text here: Ashcraft records that Locke had made extensive notes on Grotius as well as on Hooker and Pufendorf. See Richard Aschcraft, Locke’s Two Treatises on Government (London: Unwin Hyman, 1987), 288. 163 Ibid. Grotius cites Cicero on the point: Cicero, De finibus, 3.20.67.

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however, although one of the two original conditions arising from such an extreme simplicity of life – community of property – could still be found “among certain tribes in America, who have lived for many generations in such a condition without inconvenience … [and] lived easily on fruits of the earth brought forth without toil.”164 Without referring explicitly to Original Sin (but neither did any of the humanists or Spanish scholastics who had offered the same general account) Grotius asserted that the original simple life did not last. His explanation for its demise invoked the diversification of human knowledge, interests and crafts, and broadly implied a weakening of moral fibre in favour of selfish interests based on calculation, presumably following the Old Testament historical account of the period leading up to the Great Flood sent by God as punishment for widespread human iniquity: “Humans did not, however, continue to live the simple and innocent life, but turned their thoughts to various kinds of knowledge: they developed crafts and inventions … devoted their talents not so much to the cultivation of bravery and justice as to deriving means of enjoyment, and engaged in different pursuits; this led to rivalry, even murder and [other] wickedness.”165 God then sent the Flood to destroy this manifestation of perverted humanity; after which, with the general condition of common ownership reinstated, the natural brutish life was succeeded by an arguably worse one of passion, sensual pleasure, and “unlawful loves.” Chief vice in the post-diluvian period was the relatively ignoble one of ambition. This led to division of the land into different territories and to the private possession of material goods: things became subject to ownership not by a mere act of the will of an individual in simply taking possession of it but, rather, by agreement, which was either expressed in making a division or implied by accepting occupation.166 This was how what is accepted as ownership was introduced. Grotius made the interesting point here that as soon as the feature of community ownership was abandoned – presumably the de facto acquisitive behaviour of individuals exhibiting personal ambition gave evidence of this abandonment – agreement for division of material goods was to be presumed even though no formal division had yet been specified. He cited Cicero on universal agreement to the effect that whatever was taken by each individual should be their property.167 164 165 166 167

Ibid. Grotius, De iure belli, 2.2.2.2. Ibid., 2.2.2.5. Ibid., and Cicero, De officiis 3.10 and 3.5.22.

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Given the need to emphasize consent to produce a coherent legal argument on precisely this point, Suárez had made a similarly jurisprudential assumption regarding its existence when he grounded political authority as such in popular consent.168 For Grotius, such general consent was instigated by the will of humans; but once introduced, “the law of nature points out that it is wrong for me, against your will, to take what is subject to your ownership.”169 Furthermore, inasmuch as the law of nature is unchangeable, “God can no more cause what is thus intrinsically evil not to be evil than He can cause two times two not to make four.”170 And Grotius completed the circle surrounding the inviolability of existing property rights by noting that the right to use force to retain one’s own possessions existed in the state of nature – that is, before the promulgation of positive laws in a polity – a point he had made fundamental in the earlier De iure praedae and to be insisted upon with telling effect later by Locke.171 Another feature of the De iure belli both brought it more in line with modern doctrines of political and legal theory and attracted criticism from Grotius’s Calvinist co-religionists and other contemporary Christian political writers: his deliberately naturalistic statements concerning the nature and character of law. Much of this criticism was both intemperate and uncalled for inasmuch as Grotius’s position was clear, rationally defensible, and even unexceptional, although his language must have seemed inflammatory to some. Grotius stipulated that his theory of how the natural law maintains human society and human rights “would hold even though we should even grant what cannot be granted without the greatest wickedness, that God does not exist, or that He takes no care of human affairs.”172 His point, of course, did not involve a denial of either God’s existence or His providence but, rather, only asserted a logically necessary connection between the law of nature and his conception of human rights, such that not even God could fracture

168 See Monahan, From Duties towards Rights, 171–72. 169 Grotius, De iure belli, 1.1.10.4. 170 Ibid., 1.1.10.5. 171 Ibid., 1.1.10.6, p. 40. Cf. De iure praedae, 217; cf. infra, 181. 172 Grotius, De iure belli, Prolegomena, 11. Following research by Stahl, Gierke, Sauter, and Chroust, James St. Leger has shown clearly that the Grotian position had ample medieval scholastic roots going back to Hugh of St. Victor, Gabriel Biel, and Almain with respect even to the etiamsi daremus formulation. See St. Leger, The “Etiamsi daremus” of Hugo Grotius, a Study in the Origins of International Law (Rome: Pontificium Athenaeus Internationale “Angelicum”, 1962), 45–60.

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the linkage between them (a graphic example of the by now classical distinction between ordinary and absolute powers in God).173 Grotius may have erred by modern standards of formal logic in insisting that the connection between natural law and human rights was logically necessary, but there is no question about how strongly he felt concerning the “absolute” truth of his doctrine of rights. And as for the charge of atheism against him, no one seems to have questioned the comparable rhetorical flourishes Descartes employed in his “foolproof” method for achieving human certitude and overcoming skepticism in the early portions of the Discourse on Method and Meditations on First Philosophy – presumably on the methodological grounds that there can be no certainty about the existence of God and/or that God is a powerful deceiver doing His best to interfere with human certitude on any subject – whose language and literary structure on the point at issue are very similar to that found in the Grotian text.174 In fact, there are other striking if inconsequential parallels between Grotius and Descartes: both worked out their views at about the same time and in similar circumstances (i.e., solitary confinement, forced in Grotius’s case and voluntary in Descartes’). Suárez, it might also be noted, argued in much the same way.175 Unquestionably, the Grotian position here offered grounds for concern among Reformation thinkers who still preferred to employ a providential description of the origins of political society and authority: Grotius was forcing yet another aspect of the Aristotelian naturalistic line of thought. One has to be cautious, then, in describing the mature Grotian theory as anti-Aristotelian, even though his conception of law in terms of the rights of others is a significant and obvious example of nonAristotelian doctrine. Yet his rejection of the Protestant providentialist theory of polity in favour of a more naturalistic account of how individuals founded political societies, and the provision of a rational rather than a quasi-theological account of the event, was clearly Aristotelian in spirit if not in detail. These two features in the seventeenth century were, both in tone and mode of formulation, more Catholic than Protestant. While essentially a repetition of earlier views expressed in the Introduction, Grotius’s account of the transition from common use right to private property in the De iure belli included one new point: the assertion that the move “resulted from a certain compact and agreement, either 173 See Monahan, From Duties towards Rights, 285–86. 174 Tuck, Natural Rights, 66. 175 Tuck notes the criticism levelled at Grotius on this point by both Salmarius and Pufendorf, citing the relevant texts. See Tuck, Natural Rights, 76.

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expressly as by a division; or else tacitly as by seizure. For as soon as living in common was no longer approved of, all men were supposed, and ought to be supposed to have consented, that each should appropriate to himself, by right of first possession, what could not have been divided.”176 A much more significant new element, however, was the discussion of the nature of political society where Grotius described a group of individuals with a “community of rights and sovereignty” [consociatio iuris atque imperii], that is, a group that had defined itself somehow as separate from the rest of human society in virtue of having transferred rights from the individuals concerned to the group itself.177 One right Grotius identified here was the individual’s original liberty in the state of nature; and he conceded it was possible for individuals to alienate this right totally to a ruler. If the ruler had an independent existence, the alienated rights existed independently in the ruler; if the ruler were not independent, the rights of the originally free individuals became merged with those of the other individuals or societies dependent on that ruler.178 Grotius made it clear, then, that power no longer resided in the people either individually or collectively once they had entered into a compact to form a political society. He also accepted that individuals 176 Grotius, De iure belli, 2.2.2.5. The notion of consent or “social contract” appeared also in the De iure praedae text, of course. Haggenmacher has argued that the contract played only a subordinate role in the De iure belli, where Grotius tended to confuse the distinction he had spelled out carefully in the De iure praedae between the contract of association and the obligation of submission arising from positive law. He suggests that the difference between Grotius and Hobbes is obscured by the “confusion” regarding this distinction in the de iure belli. For Hobbes the obligation to obey positive law derives completely from the social contract, while for Grotius its basis rests in a prior way on the law of nature operative in the state of nature. See Haggenmacher, Grotius, 533–34, and note 483. Tuck speaks of this “supposed” consent as something more like recognition of a right than something that constituted one. See Tuck, Natural Rights, 77. For a fuller analysis of Hobbes’s position on this point as it involves his own distinction between right of nature and law of nature, see infra, 130-31. 177 Grotius, De iure belli, 2.9.8.2. 178 “[I] reject their opinion, who will have the supreme power to be always, and without exception, in the people, so that they may restrain or punish their kings, as often as they abuse their power … it is lawful for any individual to engage themself as a slave to whom they please, as appears by both the Hebrew and Roman laws. Why should it not therefore be lawful for a people to deliver up themselves … transfer the right of governing them … without recovering any [of] … . that right to themselves?” (Grotius, De iure belli, 1.38.1–2).

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could enslave themselves voluntarily, his justification being that both Israelite and Roman law permitted this; and he was equally satisfied that the logic of his position required groups of individuals similarly to be able to agree to alienate their liberty to a ruler and that, having done so, they no longer had any rights in the matter. The degree and quality of what was alienated to the sovereign in the formation of a political society could vary in practice, however, insofar as “a people may choose what form of government they please;”179 but there are two constants in the relationship between subjects and ruler in any political society. One is the unqualifiedly absolute character of the ruler’s sovereignty: “Neither is the right the sovereign has over his subjects to be measured by this or that form, of which divers men have divers opinions, but by the extent of the will of those who conferred it upon him.”180 The extent of the will involved was not a variable because only its fullest extent could establish a polity in the first place: consent here, even though tacit, must be total, as is also the case when conquest is the method of establishing a polity. The other invariable in a polity was the total alienation of the right of self-defence or of individual subjects to resist the sovereign. “All persons have naturally a right to secure themselves from injury by resistance … But civil society [arises] in the state over us and ours … therefore the state has a power to prohibit the unlimited use of the right towards every other person.”181 This feature of the Grotian theory of politics is what has most dismayed his liberal critics and has led to his being classified as an advocate of the absolute theory of the state. And his insistence on the irrevocable character of renunciation of both liberty and the right of self-defence as necessary conditions for the founding of a political society struck even many of his contemporaries as an excessive price to pay for the values of a peaceful polity. Johannes Felden, for example, protested that Grotius’s doctrine “destroys civil society, which is a community of free individuals, and makes it an aggregation of slaves.”182 Yet, as with Bodin earlier and arguably even with Hobbes later, such a judgment may be too harsh. Like Bodin and Hobbes, Grotius dealt with the notion of ruler essentially in terms of an abstraction: the concept of sovereignty (although he did not employ the term with complete uniformity of meaning). Accordingly, a proper interpretation of 179 Ibid. 180 Ibid. 181 Grotius, De iure belli, 2.1.9.1. 182 John Felden, Annotationes in Hugo Grotium, De iure belli ac pacis (Amsterdam: n.p., 1654), 35.

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the ideology behind his doctrine may allow him to escape being categorized as an advocate of a theory of absolute exercise of political authority (such as James I’s doctrine of divine right monarchy), even though there is evidence that he personally favoured this de facto form of governance. The theoretical entailments of a given intellectual formulation often avoid, or at least in the hands of a sufficiently subtle analyst can provide the interstices for an escape from even the personal inclinations of their own formulators. This is why a comprehensive understanding of a given political thinker’s motives, circumstances, and conceptual armoury will not in itself necessarily yield a correct interpretation of that person’s text, even while it might be said to encompass their own intended meaning. Grotius’s De iure belli has been described as Janus-faced inasmuch as other aspects of it than those being discussed above exhibit non-absolutist features.183 Libertarian possibilities can be inferred, for example, from his views about the appropriate method for construing and interpreting agreements among consenting individuals. Too much of a rationalist ever to tamper with the logic of his position, Grotius did not reject apparently simple entailments from his conception of natural rights as the personal property of free and rational human beings. Because these rights were naturally theirs, individuals could dispose of them as they could any property, by choosing freely to do so. In the extreme case, apparently, at least by logical extension of the original position, they could even alienate them one and all. At the same time, however, Grotius seemed to wish to construe such agreements entered into by free, consenting individuals in terms of what would be rational in the circumstances rather than by way of a rigidly forced literal interpretation. And he specifically mentioned an element dear to some modern North American conservative legal thinkers: the intent of a law’s original framers.184 He identified two particularly significant areas where a certain looseness of application of rationally agreed-to contracts might be appropriate: one, the possibility of modification to the absolute prohibition against resistance (the principle of non-resistance); the other, the absolute character of the agreements concerning property (the principle of private property). The De iure belli offers a quite extensive examination of resistance theory, which shows a clear awareness of the current state of intellectual play on the issue. Grotius began by asking whether it is permissible for either private or official persons to wage war against those to whose authority they are subject, distinguishing between authority that is sovereign and 183 Tuck, Natural Rights, 79. 184 See supra, note 178.

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authority that is subordinate. Moving quickly to the real issue, he accepted that resistance could be offered to subordinate authorities but went on to offer a series of negative points on the general issue of resisting sovereign authority. He asserted as a principle “beyond controversy” that orders issued by any authorities contrary either to the law of nature or to the commandments of God should not be obeyed but are to be endured;185 and he noted that rebellion was not allowed in practice by the early Christians.186 He then directly rejected the view that it is permissible for subordinate officials (“lesser magistrates”) to rebel against sovereign authority, using both rational argumentation and Scriptural texts, and conceding only that the fact of violence having sometimes been used successfully against rulers merely shows that divine providence permitted rather than approved such behaviour.187 Grotius then asked specifically “[w]hether the law of non-resistance obliges us in the most extreme and inevitable dangers[.]” His reply begins by citing the case of the Theban Christian legion of 6,666 men who suffered execution to a man rather than participate in an uprising against the emperor. But after repeating that “resistance cannot rightly be made to those who hold the sovereign power,” he added that “there are certain points we ought now to bring to the reader’s attention lest he think those guilty of disobeying this law when they are not,” and he introduced several qualifications to his absolute rejection of resistance to sovereign authority. The right to make war against a chief authority can be conceded to “a free people” whose rulers are responsible to them;188 the same right obtains against a ruler who has abdicated and against a king who has alienated his kingdom: resistance in the latter case is legitimate to prevent any arbitrary transfer of authority.189 And, ultimately, Grotius accepted the legitimacy of resistance against a ruler who “openly shows himself an enemy of the whole people,” citing the Catholic Scotsman William Barclay (c1546– 1608) on the point: “A king who acknowledges that he is an enemy of the whole people ipso facto renounces his whole kingdom, something [however] which can hardly occur in the case of a king in his right mind and ruling over a single people.”190 And finally the Dutch jurist 185 Grotius, De iure belli, 1.4.1.3. 186 Ibid., 1.4.5. 187 Ibid., 1.4.6.4. 188 Ibid., 1.4.8. 189 Ibid., 1.4.8–10. 190 Ibid., 1.4.11. Cf. Barclay, De regno et regali potestate adversus Buchananum, Brutum, Boucherium et reliquos monarchomachas, libri sex (Paris: n.p., 1600).

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also repeated the traditional right of resistance to a would-be usurper of political power, noting four cases of this general type.191 Tuck interprets Grotius to mean that, while all individual rights are theoretically alienable, what Quine has called “interpretive charity” requires one to assume him to have held that no rational person would ever renounce all his or her rights.192 But might one not as well interpret the Grotian text in a more purely legalistic way and suggest that he recognized the necessity of exceptions to every rule: making the principle a rule [= legal connotation] rather than a law in the strict analytic sense. This would seem more in line with the scholastic approach of a moralist like Thomas Aquinas and of legalists like Suárez and Molina, the latter two of whom could not have meant their absolutist language about obligations to obey political authority to be taken literally, even though they agreed with Grotius that consent alienated rights and also countenanced self-enslavement.193 In fact, Grotius used this line of argument himself when introducing a qualification to the principle of private property. Again he put a direct question, asking “[w]hether individuals may not have a right to enjoy things that have already become the property of other persons”; and his answer exhibits the same pattern as does his response to the issue of resistance: We are to consider the intention of those who first introduced the property of goods. There is all the reason in the world to suppose that they designed to deviate so little as possible from the rules of natural equity … we [ought] to put that favorable construction on things introduced by a custom not written … in a case of absolute necessity, that ancient right of using things, as if they still remained common, must revive and be in full force.194

In the final analysis the great Dutch legal philosopher seems to have advocated a defence of both slavery and political absolutism, on the one hand, and justification for political resistance and for property considered as common in extremis, on the other. Arguably, however, the perceived 191 Grotius, De iure belli, 1.4.15–19. 192 Tuck, Natural Rights, 80. Cf. William van Orman Quine, Word and Object (New York: John Wiley and Sons, 1960), 59. 193 Cf. Luis de Molina, De iustitia et iure, 2 vols. (Mainz: 1659), 1:162–63; Francesco Suárez, De legibus, ed. Luciano Perena et al. 8 vols. (Madrid: Consejo Superiore de Investigaciones Cientificas, 1971–81), 3.4.6. Cf. Monahan, From Duties towards Rights, 130–31, 176, 181–82, 283. 194 Grotius, De iure belli, 2.6.4.

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inconsistencies in his position arose more from his own penchant to describe his views as scientific, and from his commentators’ willingness to take him at his literal word and force a more formal notion of scientific on his doctrine than he himself would have claimed, than from the rational inadequacies of his views on this score. His inadequacies, and there are some, have rather to do with his concept of sovereignty as it comes into conflict with the more basic concepts of limit and consent. Furthermore, despite those important aspects of his position that warrant attaching the label “anti-Christian” to much of his mature doctrine, it was Grotius’s retention of the fundamental Aristotelian and Christian principle of sociability that kept him from subscribing fully to the concept of human individuals as atomic units in a political whole. Neither, incidentally, did Cicero, who exercised strong influence in this connection on earlier medieval political thought, even when speaking of “men wandering solitary.” Responsibility for fully formulating this flawed conception of human nature as inherently and exclusively self-interested and warlike in the state of nature must rest with Hobbes and his wish to provide a scientific and purely mechanistic description of human beings that led him to speak of them as “machines.“195 Grotius himself criticized Hobbes’s De cive text for denying the naturally social character of humans and speaking of the state of nature as bellum omnium contra omnes.196 samuel pufendorf Samuel Pufendorf (1632–94), one of the most notable and arguably the most influential continental political thinker both during his lifetime and for the century following, has provided one of the most detailed and comprehensive presentations of a political system of this era. A system it is, and a system it was intended to be. Raised a Lutheran in the Erzgebirge region of Saxony, Pufendorf began the study of theology at the age of eighteen at the University of Leipzig in 1650, including in his curriculum the humanities, the natural sciences, and jurisprudence. He focused on the last of these when he presented for his first degree an extensive essay on ancient constitutions and the origins of the state. He went on to complete a master’s degree in natural law and moral philosophy at the University of Jena in 1658, where he began what was to become his great formulation of natural law theory. On graduating he became private tutor to the family of Peter Julius Coyet, Swedish minister (ambassador) in Copenhagen. Pufendorf wrote his first extensive 195 Hobbes, Leviathan, “Introduction,” ix-x. 196 Tuck, Natural Rights, 81.

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treatise on natural law, Elementorum jurisprudentiae universalis libri duo (Elements of Universal Jurisprudence), while imprisoned in 1658 during hostilities between Denmark and Sweden because of his connection, through his employer, with Swedish nationals. Moving with the Coyet family to Holland the following year, he dedicated this work to Karl Ludwig, Elector Palatinate whose patronage had been recommended to Pufendorf by Peter de Groot, son of Hugo Grotius.197 Pufendorf began a distinguished but relatively short-lived formal academic career in several European universities in 1661, when he accepted Karl Ludwig’s offer of a professorship in international law and philology in the Faculty of Philosophy at the University of Heidelberg. Apparently he had sought a position in Heidelberg’s Faculty of Law, but his application had been rejected by the professoriate. Approximately the first half of the next three decades of his professional career saw Pufendorf functioning in a purely formal academic capacity, first at Heidelberg (1661–70) and then at the University of Lund, Sweden (1670–77). The last decade and a half of his life saw him holding a series of academic, quasi-academic, diplomatic, and political appointments in Germany, Sweden, and Germany again, all the while publishing an extensive number of works in jurisprudence, political history, and the history of political and juridical institutions, both ancient and contemporary. During this period he enjoyed the patronage of three of the most powerful Protestant political authorities in Europe – Charles xi of Sweden; Frederick William of Prussia, Grand Elector of Brandenburg-Prussia from 1640 to 1688 and leader of Protestant Europe at the time; and Frederick William’s successor, Frederick iii of Prussia – being directly employed by them as advisor and diplomat. This fact, coupled with the intellectual rigour and comprehensiveness of his political writings, explains both his stature among his contemporaries and the reputation he enjoyed as a political theorist in the eighteenth century. Pufendorf’s major political treatise and probably his most influential writing was published in 1670: On the Law of Nature and Nations (De iure 197 The best recent biography of Pufendorf is [Tantalizingly, A.P.M. did not complete this sentence; and so left unspecified what he thought the best recent biography of Pufendorf was. I note that James Tully in a “Bibliographical Note,” xli-xliii, in his edition of The Duty of Man and Citizen (see next note), says that Leonard Krieger’s The Politics of Discretion: Pufendorf and the Acceptance of Natural Law (Chicago: University of Chicago Press, 1969), “the only fulllength study in English, is a solid introduction to Pufendorf’s life and political thought.” DB.]

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naturae et gentium libri octo). It was dedicated to King Charles xi of Sweden who had offered Pufendorf a professorship in natural and international law at the University of Lund in 1667, an appointment he took up, however, only in 1670.198 Pufendorf published a careful and wellexpressed compendium of this massive work a year later under the title On the Duty of Man and Citizen according to Natural Law (De officio hominis et civis juxta legem naturalem libri duo).199 In addition to these two treatises, moreover, Pufendorf published a number of works on both ancient and contemporary political history: On the History of Philip of Macedon (1663); On the Constitution of the German Empire (1664); A Historical and Political Description of the Spiritual Monarchy of Rome, a parti-pris anonymous work expounding a Protestant view of the Roman papacy (1677); an encyclopedic work in comparative analysis of the existing powers and interests of European states entitled Introduction to the History of the Principal Realms and States as They Currently Exist in Europe (1682); and a treatise on church/state theory in response to the revocation of the Edict of Nantes entitled On the Nature of Religion in Relation to Civil Life and dedicated to Frederick William (1684). Both the contents of Pufendorf’s writings and the details of his professional career exhibit a clearly conceived personal project, if not an actual agenda, underpinning his elaborate and carefully worked out intellectual system: that is, to describe and defend the general form of polity currently in place and under active promotion by the leading Protestant states in Western Europe, the reality and policy features of which underscored a number of political conditions as well as a set of agreed-upon notions concerning the nature of a polity and the authority ruling it, which Pufendorf accepted and advocated in varying ways that were consistent with his methodology. The following givens and conditions underlying the Pufendorf position are succinctly and admirably summarized by Tully in his introduction to the Duty of Man and Citizen200: first, earlier medieval concepts and alleged realities lacked both legal and historical credibility, in particular these concerning a universal jurisdiction in either church (“Christendom,” a universal “ecclesia,” comprising all Christians who acknowledged a single theological doctrine and membership in one ecclesiastical institution) or state (the largely mythical Holy Roman 198 James Tully, “Introduction” to Samuel Pufendorf: On the Duty of Man and Citizen (Cambridge: Cambridge University Press, 1991). 199 An English translation by Michael Silberthorne has appeared recently in Tully’s edition of Duty of Man and Citizen. 200 “Introduction” to Duty of Man and Citizen, xvi-xix.

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Empire, whose legal and historical vestiges bedevilled much of the political conflicts in sixteenth-century and early seventeenth-century postReformation Europe). Second, current political realities showing a number of self-sustaining, sovereignty-claiming and exercising states in Western Europe, even acknowledging that they jostled one another for place and jurisdiction more often than not (and sometimes militarily), represented a reasonable and, therefore, justifiable expression of the natural diversity of humans as political animals with different backgrounds, histories, and traditions. Third, sovereignty as both concept and reality was an integral and essential feature of each of these legitimate polities(a polity existed and enjoyed legitimacy to the extent that it possessed a locus of ultimate authority to which all its members were legitimately subject, this authority itself not being subordinate to any other political authority). We add, fourth, points two and three notwithstanding, a quality of universal humanity that underlies existing diversities among human individuals and groups can serve as grounds for resolving conflicts stemming from such diversities (i.e., there is a uniformity of human nature shared by all individuals and intelligible to human reason). Fifth, a fundamental and very fractious area of diversity among human individuals and groups that could not be expected to be resolved by reasonable argument is the de facto commitment by different individuals to the various current forms of Christianity. This fact requires political recognition insofar as it impinges on the essential unity of a political state itself; it is something integral to a state’s conceptual and real integrity embodied in its sovereignty and expressed through its current form of political authority. Sixth, a rationally acceptable and defensible political expression of the religious diversity among European Christians that provided for diverse Christian confessional commitment while retaining the essential sovereign integrity of political authority of any given sovereign state to express and insist on religious unity within it. This was the way that religious diversity was dealt with in the Treaty of Westphalia, which ended the Thirty Years War (1648). The Westphalian treaty acknowledged religious diversity among the three major forms of current Christian doctrinal expression within individual states – Calvinism, Roman Catholicism, and Lutheranism – while conceding sovereign power in each state to its current authority, whose right it then was to establish the particular mode of toleration. Incorporation and rationalization of these elements were current (i.e., seventeenth-century) threads of natural law ideology among all its adherents, including Catholics. What needs to be stressed in both these respects, then, is what neo-scholastic and humanist jurisprudential

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thought had in common, and what Pufendorf accepted from this common pool of ideology. Only in this way can one recognize what is distinctive about Pufendorf’s so-called “modern” natural law theory.201 From the outset Pufendorf placed his own views squarely within the current scientific tradition of political and jurisprudential thinking explicitly championed by Grotius and Hobbes, whose own conclusions do not necessarily agree, however, either with Pufendorf or with one another. This even though both saw their own political thought as a science in the new Cartesian sense at the same time as they continued to repeat many conventional and classical elements of the natural law position. Pufendorf acknowledged Grotius as the founder of the specific school of natural law with which he identified,202 situating himself as well in the context of the writings of Hobbes and two other English political thinkers, John Selden and Richard Cumberland. But, as we shall see, Pufendorf was very much his own man as regards both Grotius and Hobbes, and he subjected the views of both, particularly the latter, to searching and ultimately devastating criticism. As might be expected, the most forthright and straightforward expression of the Pufendorf position is found in his own digest formulation Duty of Man and Citizen, a work that was to become a standard text in the universities of Protestant Europe in the eighteenth century precisely in the terms its author used to describe its purpose: “To expound to beginners the principal topics of natural law in a short and, I hope, lucid compendium [believing it] in the public interest to steep their minds in a moral doctrine whose usefulness in civil life is accepted as obvious.”203 The Pufendorfian jurisprudential position, then, is essentially an ethical one in the traditional classical and Christian sense that he saw politics as an extension of ethics, with both being governed by the same prescriptions for human behaviour – namely, natural law. And again, in 201 Cf. what Tuck has to say about Pufendorf as a modern natural law theorist. See Tully, Duty of Man and Citizen, xlii. The succinct bibliographical data provided by Tully in the same text shows the wide range of interpretations given to Pufendorf’s natural law and rights theory as well as to his influence on the Enlightenment. See Tully, in Duty of Man and Citizen, xli-xliii. Tuck’s assessment of the relationship between Pufendorf, Grotius, and Hobbes, especially the latter two, is extensively presented in his recent work. See Tuck, Philosophy and Government. The Tuck bibliographical note was published too early to include Polladini’s extended effort to show that Pufendorf was a disciple of Hobbes. See Fiametta Polladini, Pufendorf discipulo di Hobbes (Il Mulino, 1990). 202 Tully, “Introduction,” xviii. 203 Pufendorf, Duty of Man and Citizen, Preface, 6.

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the common traditional sense, he was quite explicit that what we call positive law – actual legislation in any civil society – is an extension and specification of natural law as a set of moral prescriptions. There is or should be a correlation of norms and content between natural and positive law: “the discipline of civil law presupposes natural law as the more general discipline”;204 “it is in fact easy to show a harmonious relation between civil law and natural law.”205 Like Grotius before him, however, Pufendorf insisted strongly on drawing a line between theology and natural law theory as well as between the latter and jurisprudence or positive law. He took particular pains to stress, on the one hand, the purely rational character of natural law, thereby delineating it from theology as grounded in faith (the venerable medieval distinction between the spheres of faith and reason that exercised so much of the late thirteenth-century Christian theological response to the challenges of Aristotelian philosophy in both metaphysics and ethics) and, on the other, the very general character of natural law ethics that is the common inheritance of all members of the human species (in contrast to the particular and frequently diverse specifications prescribing human behaviour in the positive legislation of individual sovereign states). This demarcation issue caused Pufendorf some initial difficulties among the more conservative members of his Protestant constituency, who accused him of closet atheism or at least of religious heterodoxy in maintaining a separation between natural law moral theory and conventional Christian theology, a confusion that echoed the instinctive conservative reaction to the etiamsi daremus, the “natural-law-is-valid-even-if-God–didnot-exist” formula employed by Grotius.206 The tenacity with which Pufendorf held to this demarcation thesis is evident in the many texts in which he responds to criticisms from intellectual opponents, and it is part and parcel of his carefully worked-out doctrine of separation of church and state.207 He formally began Duty of Man and Citizen with a definition of duty, the main focus of his interest in natural law theory and the specific subject of his abridgement of the major work Law of Nature. He defined the term duty (officium) with direct reference to law: “Duty [is] human action in conformity with the commands of law on the ground 204 Ibid., 7. 205 Ibid., 8. 206 See supra, 71. 207 Cf. Pufendorf, De habitu religionis christianae ad vitam civilem and Jus speciale divinum sive de consensu et dissensu protestantium exercitatio posthuma.

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of obligation.”208 Two features, both critical for Pufendorf’s overall theory, are immediately clear here: (1) the direct connection between duty and obligation to law and (2) the expression of the concept of law in the first instance in terms of command. The work is divided into two books, with the basic substructure a consideration of duty under a threefold distinction: as it relates to God, to oneself, and to other humans. The last distinction exhibits a further subdivision between other humans considered in general and as gathered into civil society (i.e., a state), particularly as regards sovereign authority in a state. He also employed the traditional threefold distinction among sources of knowledge concerning our duties: “there are three sources of man’s knowledge of his duty … the light of reason, the civil laws, and the particular revelation of the Divinity.”209 Connecting these specific intellectual modes of knowing, or disciplines, as noted already, with the three orders of law: (1) reason functions in the order of “natural law, which is common to all nations … (2) the civil law of individual states, which has … as many forms as there are states into which the human race is divided” provides the content of the second type. And, of course, the third source of knowledge concerning our duties is “moral theology.”210 Within this apparent and deliberately conventional structure identifying the three forms of human knowledge, the three forms of law, and the implied legal obligations to which we must be committed as well as the three modes of knowledge corresponding to and specifying these forms of duty and law, Pufendorf’s real and primary interest was in articulating our duty as regards the natural law, both in terms of how this can rightly be defined as a duty and as regards the actual specification of the obligations that this form of law imposes. Arguably for Pufendorf, the character of duty and the specification of entailed obligation were quite clear as regards duties both theological (to God) and civil (to the state): the details of obligations to God are made clear by church authorities and these duties are accepted on grounds of religious faith; similarly, the injunctions of political authorities make that state’s law clear, and here the individual makes a commitment of obedience as a citizen subject. Pufendorf’s concern, then, and the specific intellectual discipline upon which he concentrated, was natural law in terms of both its obligatory character and its content, with the obviously 208 Pufendorf, Duty of Man and Citizen, 1.1. My normal procedure will be to cite Pufendorf’s Duty of Man and Citizen rather than the bulkier Law of Nature. 209 Pufendorf, Duty of Man and Citizen, Preface, 7. 210 Ibid.

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attendant issue of the connection between natural law as prescriptive and intelligible and legal obligations and content in civil society. Advancing on these matters, Pufendorf from the beginning showed his deliberate divergence from what has been referred to earlier as traditional and conventional natural law theory. Following the general Grotian initiative, but much more conscious and deliberate in his choice of language, Pufendorf defined natural law in a manner that not only separated it from the theological order of the ethical or moral on the grounds that its contents as universally applicable to humans were discoverable by reason independently of the moral injunctions of Christian theology (although not, of course, at odds with this religious content), he also specifically defined it more narrowly than had been done by traditional natural law advocates. Asserting the demarcation between moral theology and natural law on the basis of the distinction between faith and reason and also of the fact of a “divine promise … and a certain kind of covenant between God and humans” attaching to the former, he went on to say that by far the greatest difference [from moral theology] is that the scope of the discipline of natural law is confined within the orbit of this life, and so it forms humans on the assumption that they are to lead this life in society with others … the decrees of natural law are fitted only to the human court because human jurisdiction does not go beyond this life … From this it also follows that as human jurisdiction is concerned only [sic: ed.] with a person’s external actions and does not penetrate to what is hidden in the heart … natural law too is largely [sic: ed.] concerned with forming the external actions of humans.211

Limiting the terrain of natural law to human existence in this world, with the further specification that it has to do “largely” with the externals of human actions in the here and now, afforded Pufendorf certain advantages over the more traditional Christian conception of natural law as extending across the whole range of human life, temporal and eternal, internal, the arena of motives and intentions, and overt – the old moral theologians’ distinction between internal and external fora specifically noted by Hobbes.212 Specifically, it enabled him, on the one hand, to strengthen his delineation between natural law and moral theology and, on the other, to lay out an apparently more rational (i.e., a less theological or religious) ground for his appeal across Christian confessional lines to a “universal” basis upon which humans could agree 211 Pufendorf, Duty of Man and Citizen, Preface, 8–9. 212 re Hobbes, see infra, 131-32.

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regarding how to conduct their lives. Furthermore, the general limitation of the sphere of natural law to the arena of “the human court” and “the external actions of humans” provided a solid base for employing a natural law framework for his political and social theory. This is not to say that earlier Christian natural law theorists failed to move in the same direction. But what was new in Pufendorf here was a much more sharply and narrowly focused concept of natural law. The term itself had a notoriously long-lived and “fuzzy-round-the-edges” career since classical Greek times, and the apparent ease with which it was accommodated within Christian thought from the early Christian centuries showed its intellectual vitality while at the same time masking the issue of what exactly it meant. The value of the concept stemmed from its presumed universal character – that is, its applicability across the whole range of human diversity to the notion that we are all somehow of the same kind, and that, accordingly, natural law is open to human understanding through the common instrument of our reason. Indeed, real tension in Christian theological usage of natural law emerged only in the late thirteenth century when the meaning of nature and natural came generally to be construed in terms of the cosmology of Aristotle and all existing entities came to be spoken of as types or “species” having their own specific natures, with every individual in a species sharing the same nature. Aristotelian philosophy thus gave particular focus to the notion of there being a genuinely common “nature” in all individual humans and, as well, to the insistence – previously all too often little more than a kind of intellectual aspiration – that this nature could be known. The whole thrust of Aristotelian cosmology, after all, had been to seek to discover the natures of things by way of empirical investigations that would lead via the rational activity of abstraction to genuine insight into what things really are (science in the Aristotelian sense). This had always been the goal of human intellectual endeavour; and nowhere had it been pressed more urgently, though embarrassingly all too often with very minimal success, than in the area of understanding what we ourselves are as human beings. The real impetus for all such efforts had always, in the first instance, been practical; that is, humans sought to discover what kind of thing they are in order to know how best to behave. Despite the last half-century’s silliness among many mainstream Anglo-American moral philosophers concerning the alleged impossibility of bridging the gap between facts and values – the presumed eo ipso irrationality of trying to derive an “ought” as regards human behaviour from an “is” as regards what humans as a universal class really are like – the general history of human thought about ourselves and of moral philosophy has simply accepted as a given that humans could

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know how they ought to act. Admittedly, for much of the last two thousand years of human history various religious or theological shortcuts have been advocated whereby certainty concerning the knowledge about how humans are obliged to act came from an authority accepted via belief rather than reason; yet until relatively recently the rational, natural law stance of someone like Pufendorf was the norm in the Western intellectual tradition. Not that Pufendorf was a pure rationalist in this regard, however. He proved to be a quite conventional Christian believer even while formulating his natural law theory. For Pufendorf, as earlier for Selden,213 the ultimate and, to him, essential element of sanction in any form of law, and in natural law in particular, was the perceived threat of eternal punishment asserted by the Christian God through divine revelation. Pufendorf’s point here followed the Hobbesian view that human individuals act in their “real” – that is, social – self-interest only out of fear of the baneful consequences of aiming to do otherwise. And in a sense he went Hobbes one better by making explicit that the totally corrupt character of human actions, their “nature” in that sense, could be controlled or brought under subservience to rational forms of behaviour only where certitude of divine punishment for failure is taken as a given. Pufendorf employed here the typically Protestant theological doctrine stressing the Augustinian description of humans as irremediably damaged in their nature by the effects of the sin of Adam and Eve in the Garden of Eden. A curious ambivalence thus appears at this critical juncture of the Pufendorfian system. While arguing forcefully for a rational, philosophical delineation of natural law theory marking it off from any essential connection with (Christian) moral theology and intending thereby to allow it to “float free” of Christianity in any and all the three acceptable forms in which it was currently conceded public expression on the Continent (Calvinism, Roman Catholicism, and Lutheranism), at the same time he admitted and even insisted on an acceptance of Christianity as the necessary sanction-providing basis for human individuals’ willingness to follow the tenets of natural law. In this respect at least his natural law theory appears as both natural (i.e., rational) in terms of content and supernatural (i.e., Christian) in terms of the critical element of sanction. This position is worth following in some detail because the features of novelty and traditional conventionality appear in such interesting 213 Cf. 117-18. Pufendorf would have been familiar with the Selden position. See Tully, “Introduction,” xvi.

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relief.214 We can begin by turning directly to chapter two of part one of Duty of Man and Citizen. As already noted, the preceding chapter (1.1) began with a definition of duty as an essential element in human behaviour, and it grounded the concept of duty in law as expressive of entailed obligation. Chapter two proceeds to explain how human actions contain (exhibit) the element of obligation, and how obligation is given what might be called its punch, or driving force. After providing a summary statement on the self-determining character of human agents involving the interaction of the two essentially human faculties of intellect and will (of the sort to be found in any late medieval scholastic handbook on ethics) (1.1), Pufendorf began in 1.2 to emphasize the voluntarist character of his moral philosophy with the apparently disarmingly simple statement that “human actions arise from the will.” And he immediately went on to assert that there is, moreover, no consistency of action deriving from this source either in the case of individual actions from a single person or in the case of actions of different individuals in a group: “the acts of will of an individual are not consistent with themselves; and the wills of different men tend in different directions.”215 Taken in itself this statement stands in quite remarkable contrast to Pufendorf’s earlier view, which stresses the basic uniformity of human nature across the diversity of individuals. His purpose in insisting on this “wild man” thesis as regards the products of the human will, however, is immediately clear; for his very next statement underscores the feature of the rule of law, an external controlling factor, as the instrument for producing order in human behaviour, order in the first instance among the various will acts of a single individual and, ultimately and more importantly in terms of Pufendorf’s purposes in this treatise, among the multiform will acts of different individuals in a society: “For mankind to have achieved order and decency, therefore, there must have been some rule to which those wills might conform. For otherwise if each man, amid so much liberty to will and such diversity of inclinations and desires, had done whatever came into his mind without reflective reference to a fixed rule, the result would inevitably have been great confusion among men.”216 And, of course, such a rule is properly called a law (lex): “This rule is called law … a decree by which a superior obliges one who is subject to him to conform his actions to the superior’s prescript.”217 214 The history of medieval and early modern natural law theory as it involves the Christian doctrine of Original Sin has yet to be written. 215 Pufendorf, Duty of Man and Citizen, 1.2.1, 27. 216 Ibid. 217 Pufendorf, Duty of Man and Citizen, 1.2.2, 27. John Austin clearly had read his Pufendorf.

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With the elements of will-originated human behaviour, “confusion” as an implication of the exercise of liberty, and the need for order imposed by a superior through rules (laws) obliging conformity via prescript all in place, Pufendorf could now go on to address a set of four questions he posed directly: what is (the meaning of) obligation? what is its origin? who can ensure obligation? and who can impose it on another?218 He defined obligation as “a bond of right by which we are constrained … obligation places a kind of bridle on our liberty.”219 And he went on, not surprisingly, to locate the basis for humans possessing such an obligation in the fact that they have a superior who, as such, can impose it. This obligation is incurred by us all as individuals and is “introduced into a man’s mind by a superior, by one who has not only the strength to inflict some injury on the recalcitrant, but also just cause to require us to curtail the liberty of our will at his discretion.”220 The superior, or “legislator,” in the first instance, where the obligation is that towards natural law, is God, while in the case of obligation towards civil law it is, of course, civil authority: “It is easy [sic ed.] to know the legislator. For natural laws, it is clear by the light of reason that their author is the author of the universe. And as for the citizen, he cannot fail to know who has authority over him.”221 Just as Descartes required the demonstrability of the existence of God, and with its demonstrability, guaranteed human certitude concerning the existence of the material world, so Pufendorf required certainty of God’s existence as ground for duty or obligation to law, both natural and civil. And he satisfied himself on this score with the assertion that “there really is a supreme and first being on whom this universe depends. This has been most plainly demonstrated by philosophers … this conviction has been a constant possession of the whole human race,”222 invoking three of the conventional five Thomistic ways of demonstrating God’s existence.223 Even more critical here than the issue of God’s existence, however, was humankind’s certitude regarding the reality of divine sanctions, which constitutes the fear of punishment so essential to Pufendorf’s theory of one’s obligation to conform to both natural and civil law. His position in this connection was much more carefully worked out than was that of Hobbes, even though both rested their case for the reasonableness of accepting a “bridle” on personal liberty on 218 219 220 221 222 223

Pufendorf, Duty of Man and Citizen, 1.2.3, 27. Ibid. Pufendorf, Duty of Man and Citizen, 1.2.5, 28. Ibid. Pufendorf, Duty of Man and Citizen, 1.4.2, 39. Cf. Thomas Aquinas, ST 1.1.3.

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fear of the consequences of not so doing. While for Hobbes this fear was grounded in the recognition of the “nasty, brutish and short” character of human existence in the amoral state of nature, for Pufendorf it was grounded in the fear of the Christian believer concerning eternal punishment for failure to follow God’s law. And the peculiarly religious character of Pufendorf’s theory rests on the fact that, while maintaining that certitude about God’s existence rests on rational grounds, he was equally explicit that certitude about personal immortality could only be grounded on religious faith. Accordingly, a fundamental aspect of his natural law theory of duty was based on faith. It might be noted that the demonstrability of personal immortality was controverted in the late thirteenth century: Thomas Aquinas took the position that it was demonstrable, but the general consensus among other Christian theologians (who were sensitive to the ambiguous character of Aristotelian texts on the subject) was to the contrary.224 At the same time, however, Pufendorf was at pains to stress the internal character of an individual’s perception of the reasonableness of the notion of duty underlying the force and sanctions of both natural and civil law, which are required to straighten the corrupt character of human beings. And at least in Duty of Man and Citizen he avoided any specific reference to another fundamentally Christian religious doctrine, that of Original Sin, by declining to account for basic and deeply ingrained human corruption: “We will pass over men’s common proclivity to evil; this is not the place to expatiate on its origin and character.”225 Withal, however, he also maintains that the generally corrupt character of human behaviour is empirically evident: “[In] the condition of human nature as we now perceive it”226 … “[man] is seen to have a greater tendency to do harm than … the beasts [, is] tickled by the itch of lust much more frequently than would seem necessary … [has] greed for unnecessary possessions, avarice, desire of glory, envy, rivalry and intellectual strife … extraordinary petulance, [and] a passion for insulting others.”227 And he left no doubt about his general theological frame of reference when he pointed out that the generally negative character of the Christian decalogue shows that humans left to themselves as natural agents could be expected to commit evil. One feature of the natural human condition Pufendorf stressed, and proceeded to make much of when he went on to describe the appropriateness of the duties to which humans are enjoined by both natural and 224 225 226 227

See Aristotle, De Anima, 3.5. Pufendorf, Duty of Man and Citizen, 1.1.12, 20. Ibid., 2.1.4, p. 115, and the whole of 2.1. Pufendorf, Duty of Man and Citizen, 1.3.4, 34–35.

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civil law, is the equality of human individuals. Given that humans are naturally equal – here he echoed the Hobbesian negative features of equality in the state of nature – everyone has a natural tendency to behave freely out of self-interest, with no regard for the possibility of subordination to others. He gave the same notion a very positive form of expression, however, once political society had been established by individuals agreeing among themselves to forsake their natural liberty in favour of subordination to political authority: all individuals remain equal in political society, and, accordingly, all should do their utmost to treat every other individual as an equal under the general rubric of all being equally subject to the authority of the community of which they are all equal members.228 Accordingly, “careful regulation and control are needed to keep them [human individuals] from coming into conflict with one another.”229 And whereas Rousseau puts his case in terms of legitimate theoretical political authority “forcing men to be free,”230 the issue for Pufendorf had to do with forcing them to be sociable. The notion of sociability (socialitas) is essential for Pufendorf, and his development of this concept is critical to the rationale for his natural law theory. Human individuals apparently are social in the sense that they must associate with one another in relatively large groups in order both to have their basic needs met and to develop themselves to their full natural potential; yet the perversity, or corruption, of their individual natures remains. Is this characteristic “natural”? It seems so, at least in the sense that it is normal and must be taken as an empirically evident fact; and it requires that, through mutual consent, they force themselves and one another to express this essential “sociality” by fulfilling their duty to restrict their liberty under the constraints of a legislator able and willing to coerce them into doing so: “in order to be safe, it is necessary for him [the human] to be sociable; that is to join forces with men like himself and so conduct himself towards them that they are not given even a plausible excuse for harming him, but rather become willing to preserve and promote his advantages. The laws of this sociality … are called natural laws.”231 With this description of natural laws Pufendorf made a clear break with the previous natural law tradition, and he did so in a manner 228 Ibid., 1.7.1, 1.7.2 229 Ibid., 1.3.6, 35. 230 Jean-Jacques Rousseau, “Social Contract,” in Rousseau’s Political Writings, ed. Alan Ritter and Julia Conway Bondanella, tr. Julia Conway Bondanella (New York: W.W. Norton, 1988), 1:7. 231 Pufendorf, Duty of Man and Citizens, 1.3.7–8, 35.

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much more forthright and conceptually crisp than did Grotius, whose earlier gropings for the same point were only partially successful.232 What Pufendorf was doing, in effect, was straddling both sides of the conceptual issue regarding when a natural law can truly be called natural. His argued that it can be so called when: (1) it expresses with adequate sanction from a legislator a form of human behaviour truly in the natural interests of human beings as regards both self-interest and necessary association with others and (2) people cannot reasonably be expected to conform to it in pursuit of their self-interest without the duty attendant upon such a law. The issue of the intellectual coherence of such a view notwithstanding, no prior natural law theorist had put the case so clearly. Aristotle, the originator of this general position, had spoken only of humans as naturally social;233 in the thirteenth century Aquinas employed the two terms “social and political” but without explicitly distinguishing between them.234 The Spanish neo-Thomists, especially Vitoria and Suárez, expressed the distinction between social and political, thereby developing a more complex account of how humans as naturally social came by mutual consent both to agree, leaving the natural state of individual liberty, to become members of a political society and to agree in a second form of compact on the specific model and locus of the political authority to which they willingly submitted themselves. Pufendorf’s account of the origin of political society wherein individuals accepted their duty of “sociality” under a coercive legislator repeated the Spanish neo-Thomist theory of double agreement.235 With the natural character of humans’ duty towards God, themselves, and others in place, Pufendorf could proceed with his account of how human society came into existence, his variation on the by now conventional social contract account of how, via rational insight into what conditions best met their perceived self-interest, humans mutually agreed to leave their natural state of individual liberty and establish an ordered, mutually beneficial regimen under the accepted authority of a ruler who provided protection and the prospect of stable well-being under laws established by him for this purpose. 232 See supra, 71-72. 233 Cf. Aristotle, Politics, 1.2,1252b30. 234 Thomas Aquinas, On Kingship, 1.1.4; cf. ST 1–2.72.4. 235 Pufendorf, Duty of Man and Citizen, 2.6, 135–38. On the Spanish neoscholastic use of this distinction, see Monahan, From Duties towards Rights, 136–37. Pufendorf likely received this doctrine directly from Bodin and Grotius rather than from Spanish sources.

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In the ordinary and general sense that social contract theory stresses the origin of political society in a consensual act freely made by individuals on their own behalf, which somehow takes them “out of” their original condition as fully self-determining, Pufendorf was a social contractarian, as were virtually all political theorists of his day and for at least several centuries earlier. This wide-ranging group from Vitoria to Hobbes, just to name two of its members, however, exhibited significant variations within the broad parameters of this general social contract conception; and it will be useful to compare Pufendorf with Hobbes in this connection. When presenting his account of the origin of human political society in Duty of Man and Citizen, he returned to his triune structure framing a human’s duty in terms of its objects: God, individuals themselves, and others. And this overlaid yet another trinitarian perspective as regards how one might perceive humans as natural: (1) in terms of their relationship established by God their creator vis-à-vis other creatures (“an animal excelling all other animals”;236 (2) “by an imaginative effort, as the condition man would have been in if he had been left to himself alone, without any support from other men”;237 and (3) “the natural state of man in terms of the relationship which men are understood to have with each other on the basis of the simple kinship which results from similarity of nature and is antecedent to any agreement or human action by which particular obligations of one to another have arisen.”238 And he proceeded immediately to turn aside the issue of whether or not such a state of nature was either imaginary or real: it is either neither or both: The natural state may be considered either as it is represented by fiction or as it is in reality … it would be a fiction if we supposed that in the beginning there existed a multitude of men without any dependence on each other, as in the myth of the brothers of Cadmus, or if we imagined that the whole human race was so widely scattered that every man governed himself separately, and the only bond between them was likeness of nature. But the natural state which actually exists [sic, ed.] shows each man joined with a number of other men in a particular association … the condition that now [sic, ed.] exists between different states and between citizens of different countries, and which formerly [sic, ed.] obtained between heads of separate families.239

236 237 238 239

Pufendorf, Duty of Man and Citizen, 2,1,2, 115. Ibid., 2.1.3, 115. Ibid., 2.1.5, 116. Ibid., 2.1.6, 116.

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In other words, the state of nature for human individuals is the set of conditions they enjoy relative to one another outside (before their entrance into) a political community and the relationship they have as members of a state to other humans outside their own state, both those who are themselves members of another state and those who are not. Even in the Pufendorfian state of nature, individuals were not completely independent, of course. Here, like Locke and others in the natural law tradition, he took categorical issue with Hobbes, maintaining that individuals in the state of nature were subject to the restrictions of both divine and natural law. In other words, he disagreed with Hobbes’s apparent conviction that law of any kind comes into existence only by way of contractual agreement among humans.240 Pufendorf agreed that moral laws applied in the state of nature, but he also agreed with Hobbes about the futility of expecting orderly human behaviour in the absence of real conditions of duty and coercion. For both, the reality of obligation originates in the creation of political societies. One finds the element of coercion necessary to produce actual order only in a state: obligation to restrict one’s natural liberty emerges only when fear of punishment by a legislator is consciously in place. As Pufendorf insisted, given the corrupt character of their nature and the mass of diverse passions and desires of each individual, even the fear of divine punishment, which must have had some reality in the state of nature, would not have been enough to limit the selfinterested activities of individuals in this state: “In the state of nature each is protected only by his own strength … in the natural state … no one can … by authority compel the offender; in the natural state there is a lively and all but perpetual play of suspicion, distrust, eagerness to submit to the strength of others … desire to get ahead of them or to augment one’s own strength by their ruin”;241 “admittedly natural law teaches that all men should refrain from all infliction of injuries. But respect for that law cannot guarantee a life in natural liberty with fair security.”242 For Pufendorf this was why “nature herself has willed that there should be a kind of kinship among men,”243 in much the same way as Hobbes held that the First Law of Nature stipulates “that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and 240 241 242 243

For the Hobbesian position, see infra, 132, 134. Pufendorf, Duty of Man and Citizen, 2.1.9–11, 118–19. Ibid., 2.5.8, 134. Ibid., 2.1.11, 119.

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advantages of war.”244 Accordingly, individuals agree to create political societies. And Pufendorf was quite ready to accept the transition from the natural state of liberty to that of “bridled liberty” within a state without a further review of the advantages of the latter over the former. One can almost see Locke reading this section of Duty of Man and Citizen when he addressed the same issue in a somewhat incoherent way in his Second Treatise of Government.245 Pufendorf, on the other hand, put the matter squarely: “Why [have] men … not been content with those first small associations (societates) [by which he understood the primitive groupings of single families or a small number of families that came together] but have constituted large associations which go by the name of states (civitates)[?]”246 And he was quite clear about why such a question is critical: “For this is the basis from which we must derive the justification of the duties which go with man’s civil status.”247 He went on to assert that it is not enough to say that man is drawn to civil society by nature herself. For man is obviously an animal that loves himself and his own advantage in the highest degree. It is undoubtedly therefore necessary that in freely aspiring to civil society he has his eye on some advantage coming to himself from it … we cannot therefore directly infer from man’s sociality that his nature tends precisely to civil society.248

For Pufendorf, self-interest provides the stimulus to move from the social to the political: individuals, all of whose free and independent actions in the state of nature are based on self-interest, come to realize that their self-interest is best served by agreeing with others to limit their liberty – doing so will achieve a more enduring form of this same self-interest. Even though it entails a limitation on individual freedom, membership in a political society is in an individual human’s best interests. Countless readers of the first chapters of Aristotle’s Politics have almost certainly construed the Stagirite to have meant precisely this, but probably without noticing the need to specify here the relationship between self-interest and altruism. Pufendorf does so, perhaps for the first time, by construing altruism itself as a form of self-interest. 244 245 246 247 248

Hobbes, Leviathan, 1.14, 117. Locke, Second Treatise, page 21, 87–9. Pufendorf, Duty of Man and Citizen, 2.5.1, 132. Ibid. Pufendorf, Duty of Man and Citizen, 2.5.2, 132.

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For Pufendorf, one must delineate the requirements for a man to be truly said to be a political animal, i.e. a good citizen [wherein] a man loses his natural liberty and subjects himself to an authority [and] must take into account the good of society which often seems to conflict with the good of individuals. Yet he has a congenital tendency to want to be subject to no one, to act at his own discretion, and to set his course for his own advantage in everything … a truly political animal, i.e. a good citizen [is] one who promptly obeys the orders of those in power … strives with all his strength for the public good, and gladly puts his own private good second; one, in fact, who believes nothing to be good for him unless it is also good for the state; one, finally, who is well disposed to his fellow citizens.249

He was skeptical, however, about individuals being willing to commit themselves to this ideal of the good citizen: “Many remain bad citizens throughout their lives and not political animals.”250 And for this reason he settled for a minimum perception by individuals of the self-interested advantage of living in political society – self-protection: “The true and principal cause why heads of households abandoned their natural liberty and had recourse to the constitution of states was to build protection around themselves.”251 For this reason he was prepared virtually to limit the purpose of political authority, the common good, to a single feature – protection of the citizenry: “The over-riding purpose of states is that, by mutual co-operation and assistance, men may be safe from the losses and injuries which they may and often do inflict on each other.”252 Other benefits accrue as well, but they can be seen as something of a supplementary bonus, so to speak: “The natural consequence followed of a richer enjoyment of the benefits which tend to come to man from his fellows … more suitable habits of behaviour and [the] discover[y] and develop[ment of] the various skills by which human life has been improved and enriched.”253 The procedure or mechanism involved in forming a state began with consensus about the event itself: “Among these many individuals who come together for this purpose, there has to be a consensus on adopting means likely to achieve it.”254 And, among other things, this entails 249 250 251 252 253 254

Ibid., 2.5.3–5, 132–33. Ibid., 2.5.5, 133. Ibid., 2.5.7, 133–34. Ibid., 2.7.3, 139. Ibid., 2.5.7, 133–34. Ibid., 2.6.3, 135.

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the rejection of any possibility of future dissent from the original consensus: “those who have once consented to peace and mutual help for the common good must be prohibited from dissenting thereafter.”255 For Pufendorf, “two agreements and one decree are required for a state to form in regular fashion.”256 The first agreement among many individuals possessed of “natural liberty” is that they wish to enter “into a single and perpetual union and to administer the means of their safety and security by common counsel and leadership … that they wish to become fellow citizens.”257 All must assent individually to these terms: “anyone who dissents remains outside the future state.”258 Following such an agreement, a decree is made concerning the “form of government to be introduced,” after which a second agreement is entered into by all the individuals concerned to specify the particular form and locus of political authority, the legislator or ruler, to whom all acknowledge their obedience and who agrees “to provide for the common security and safety.”259 This second agreement as regards the specific form of government apparently rests on majority support for the specific mode – monarchy, aristocracy, and democracy are mentioned as the standard options – but everyone is bound to submit to the one chosen. Pufendorf’s description of this consensually based state continued along lines that stressed its essential characteristic: sovereignty. He follows Grotius closely here, with clear echoes of medieval corporation theory: “A state so constituted is one person … it has its own special rights and property … [it is] a composite moral person, whose will … is taken as the will of all”;260 “to maintain peace among citizens … the overriding purpose of states … is a function of sovereign power … [and] the authority of the sovereign … the function of sovereignty.”261 He acknowledges the time-worn Protestant objection that locating the origin of political authority in a social contract rejects the Pauline statement “all power is from God,”262 responding as did many post-Reformation political thinkers and some Protestant resistance pamphleteers who followed earlier Catholic theorists:

255 256 257 258 259 260 261 262

Ibid., 2.6.3, 135–36. Ibid., 2.6.7, 136. Ibid. Ibid. Pufendorf, Duty of Man and Citizen, 2.6.9, 137. Ibid., 2.6.10, 137. Ibid., 2.7.3–7, 139–41. Paul, Romans 13:1.

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This account of the origin of states does not imply that civil authority is not rightly said to be of God. For God wills that all men practice natural law … the institution of states … most favours the practice of natural law … and therefore … God … is understood to have given prior command to the human race, mediated through the dictates of reason, that … states should be constituted.263

The Grotian conception of political sovereignty was also followed carefully, though succinctly, when Pufendorf outlined the characteristics of civil authority (2.9). He did this after providing brief descriptions of the three basic forms of polity, where he indicates a reasonably evenhanded acceptance of them all, provided that none exhibits the Grotian bug-a-boo of divided powers or sovereignty: “an irregular form of government is one in which we do not find that unity which is the essence of a state.”264 Such irregularity does not delegitimize any polity displaying it, however; agreement among its members as to its specific form is the only element needed to validate a state’s authority. Pufendorf also followed the Grotian line regarding the essentially indivisible character of sovereignty, its absolute supremacy, and the apparently absolute nature of obedience to the sovereign enjoined on every subject or citizen: “Every authority by which a state in its entirety is ruled … has the characteristic of supremacy … its exercise is not dependent on a superior … its actions may not be nullified by anyone on the ground of superiority … [it] is unaccountable.”265 Furthermore, “sovereign authority is superior to human and civil laws as such, and thus not directly bound by them. For these laws depend in their origins and duration on the sovereign authority. Hence … if it were bound by them itself, the very same power would be superior to itself.”266 This condition notwithstanding, however, it would be “appropriate for him [the sovereign] to conform of his own free will [to laws] whose scope extends to him too.”267 And on the issue of duty to obey the sovereign: It is … morally wrong for the citizens to resist its legitimate commands … even its severity must be patiently borne by citizens … as good children must bear the ill temper of their parents. And even when it has threatened them with the most atrocious injuries, individuals will protect themselves by flight

263 264 265 266 267

Pufendorf, Duty of Man and Citizen, 2.6.14, 138. Ibid., 2.8.12, 144. Ibid., 2.9.1–2, 146. Ibid., 2.9.3, 146. Ibid.

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or endure any injury or damage rather than draw their swords against one who remains the father of their country, however harsh he may be.268

Pufendorf was thus dead set against offering any ground for resistance to political authority, rejecting, like Bodin, Grotius, and Hobbes, any basis for revolt against established government. Raising the specific issue of whether there are any circumstances in which citizens may resist a ruler who violates his obligation to defend his subjects, administer justice, and preserve the state, his simple answer was no. Citizens must either flee or passively bear injuries from their ruler; and this includes being killed and standing by while innocent persons are being pillaged, raped, or murdered by their ruler.269 His desire to stress as essential the element of stability and order seemingly interfered, as it also did in Hobbes’s case, with his intellectual ability to recognize the conceptual connection between the legitimacy of political authority and its purpose of promoting the common good. For Pufendorf, exercise of political sovereignty was apparently a self-legitimizing and self-correcting mechanism wherein the common good was simply equated with public stability and order. There can be no place for resistance to the sovereign in such a state: legitimate resistance is an oxymoron. Withal, however, and again he was at one with Bodin, Grotius, and Hobbes here, he had to concede that, in the case of tyranny, individual self-interest must always provide an ultimate right of self-defence, even against one’s sovereign: “a people can defend itself against the extreme and unjust violence of its prince … just as a servant can resist such a master.”270 Such activity is not an exercise of political authority, however: neither individual citizens nor the people as a whole have any rights to political authority. Rather, it is reversion to the fundamental and apparently inalienable right of self-defence, it being unreasonable to assume that the original adherents to any agreement to form a polity “wished to lay upon all the burden that they shall choose to die, rather than under any circumstances to repel with arms the unjust violence of superiors.”271 The difficulty, if not the impossibility, of squaring this explicit recognition of a right to resist tyranny with Pufendorf’s equally forthright denial of citizens’ rights against a sovereign may explain why he did not include it in the compendium text of Duty of Man and Citizen. 268 269 270 271

Pufendorf, Duty of Man and Citizen, 2.9.4, 146–47. Pufendorf, Law of Nature and Nations, 7.8.4–5. Ibid., 7.8.7; cf. Grotius, De jure belli, 1.4.7. Pufendorf, Law of Nature and Nations, 7.8.7.

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The ultimate intellectual integrity of his system aside, then, Pufendorf did provide a basis for active resistance to a tyrannical sovereign; and in the final analysis it may matter only to ideological or theoretical purists whether this right is grounded in the contention that it is political in the sense that the people retain some authority to control rulers even after having ceded them authority to rule, or non-political – that is, pre-political or natural)- in the sense that human individuals possess it in their natural state as the right to self-defence, not alienated by any agreement to submit to political authority. Neither Bodin, Grotius, nor Pufendorf, nor, in the event, even Hobbes was prepared to dissolve this right under the sovereign authority of any ruler, leviathan or not. What we find in Pufendorf, however, is an attenuation of the expression of this right out of deference to his interest in maintaining the conceptual integrity of a theory that, like that of Grotius whom he followed closely here, laid such stress on the concepts of sovereignty, a citizen’s duty to obey, and the purpose of government as the imposition of order and conformity on a congenitally unruly and always self-interested citizenry. One should not expect much emphasis on the rights of these citizens within the bridling confines of political society; such a basically pessimistic conception of how humans behave when left to their own devices acts as a strong psychological factor likely to be reflected in the conclusions of the political theorist whose conception it is. A further illustration of this in Pufendorf’s case was his conventionally conservative if not reactionary acceptance of the social condition of slavery. In a brief exegesis in Duty of Man and Citizen presented in a historically descriptive rather than a prescriptive form he exhibited an easy and apparently unquestioning acceptance of history as he perceived it. Repeating the basic Aristotelian view that elides the relation of masterservant with that of master-slave, he provided an account of how, originally, some individuals contracted themselves on a permanent basis to a master in return for protection: the custom was early introduced of admitting servi [should this be translated as servant or as slave?] to one’s household to perform the required labors. In the beginning servi probably offered themselves of their own free will; their motive was poverty, or a sense of their own lack of intelligence [sic: presumably, however, they were rational enough to consent to their own agreement]. They committed their services to the master in perpetuity, stipulating for a perennial provision to themselves of food and other necessities.272

272 Duty of Man and Citizen, 2.4.1, 129.

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A subsequent ground for slavery as an institution was the practice of victors in warfare enslaving their prisoners and subsequent children in return for sparing their lives.273 As might be expected, Pufendorf offered the standard strictures about a master’s obligation to treat his slaves with “a humane regard for the slave’s strength and skill,”274 although he did not hesitate to designate a slave as “a piece of property,”275 while at the same time being careful to assert that “we should by no means treat him like other property, which we may use, abuse and destroy at our pleasure.”276 A final note concerning Pufendorf’s political theory also reflects the conventional character of his thinking: preference for the absolute monarchy with which he was familiar and by whom he was employed in late seventeenth-century Protestant Europe. What Pufendorf understood by “absolute” in a technical sense was that form of sovereignty found in a “regular state,” in contrast with an “irregular state,” wherein sovereignty is divided or fractured, thus providing a recipe for disorder and chaos. Misreading Aristotle, arguably deliberately, he denied that Aristotle favoured a mixed form of government and insisted that the basic Aristotelian division was between healthy and unhealthy forms of polity. Of the former there are three regular types – monarchy, aristocracy, and democracy – all being regular or absolute in the sense that authority in each case is located in an unmixed or undivided fashion in a specific model of sovereign. “Power is indeed the same in each of these forms,” he goes on to say, “but monarchy has a marked advantage over the other forms, in deliberation and decision, that is, the actual exercise of authority does not require stated times and places but may occur at any place or time; consequently a monarch is always in full readiness to perform acts of authority.”277 Pufendorf used the term “absolute” to characterize monarchy as a form of government: “Absolute authority is said to be held by a monarch [i.e. a single person exercising sovereignty] who can wield it according to his own judgment .. as the actual conditions of affairs seems to require, and who uses his own judgment in protecting the security of 273 Ibid. 274 Pufendorf, Duty of Man and Citizen, 2.4.3, 130. 275 Ibid., 2.4.5, 130. 276 Ibid. 277 Pufendorf, Duty of Man and Citizen, 2.8.4, 142. An extended argument rejecting the inadequacy of mixed sovereignty as “irregular” is found in Pufendorf, Law of Nature and Nations, 7.5.12–15, where the misinterpretation of Aristotle as not favouring a mixed form is also found.

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his country as its circumstances require.”278 He also characterized regular aristocracies as absolute, however, and by this he meant that power in this form of polity rests in the hands of small groups of individuals that could act without consent or agreement of anyone but themselves and at times and places of their own choosing.279 Pufendorf is not very clear, however, at least not in Duty of Man and Citizen, about how many if any existing states embody either the monarchical or aristocratic forms of absolute sovereignty. His text in this connection again proceeds descriptively rather than prescriptively: “Some peoples have thought it prudent to restrain the exercise of authority within fixed limits … . binding the king to fixed laws … and for circumstances of supreme crisis … they determined that such matters should be handled only with the prior knowledge and consent of the people or its deputies met in assembly.”280 Consequently, it is somewhat problematic how seriously he is to be taken as an advocate for absolute monarchy as the best “regular” form of polity where there are no limitations on a single ruler’s decisions other than those deriving from the purpose for which political authority is exercised. After all, some limitations requiring conformity in action even on the part of hereditary monarchs existed at the time in every state in Western Europe, including those Pudendorf served as advisor, diplomat, and political theorist in residence, and he never criticized such limits as restricting the exercise of “absolute authority.” One might suggest again that Pufendorf was engaging in political rhetoric here with regard to the conceptual purity of the term “absolute” as descriptive of monarchy or aristocracy, while remaining silent with regard to its application to any actual form of jurisdiction whose possessors (not unnaturally) might admire the simple absolute character of the pure conceptual model and might even aspire to its implementation through the elimination of whatever juridical and de facto restrictions they operate under. Pufendorf as a theoretician remained silent in deference to both the conceptual integrity of his own view and the need to avoid appearing critical of the political status quo from which personal professional benefits flowed directly. Pufendorf also expressed himself on the traditional issue of how sovereignty came to be exercised legitimately by a ruler, whether that person ruled through election or through conquest. In the instant case he took a single ruler as model for the consent option, specifying 278 Pufendorf, Duty of Man and Citizen, 2.9.5, 147. 279 Ibid. 280 Pufendorf, Duty of Man and Citizen, 2.9.6, 147.

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that popular consent by election operates across hereditary succession. He then extended the option of legitimate political authority gained by conquest into a discussion of a just war theory, the only way in which it could be established. There is nothing new here, however, as Pufendorf is merely repeating the standard Spanish neo-scholastic position with which he was probably familiar through Grotius.281 As one might expect, a professional academic like Pufendorf made his own position very clear, as, for the most part, he also did with regard to the views he rejected. In one respect, however, he may mislead a relatively inattentive reader; this has to do with the praise heaped on Grotius, whom he identified as the founder of the new science of natural law and as his intellectual “father”: “Hugo Grotius, who was apparently the first to call his generation to the consideration of that study, and was also so grounded in it that … he has left all others nothing further than the task of gleaning after him … We have been accorded the special designation of his ’son.’”282 What he seems to have had in mind here was following Grotius’s example in aiming to subject natural law and the law of nations (international law) to a careful, comprehensive, and, above all, systematic treatment that was the hallmark and particular genius of Grotius’s De iure belli et pacis, but without merely following in the great Dutch legal thinker’s doctrinal footsteps. Pudendorf sought to emulate the scientific character of the Grotian position rather than its full content. Indeed, on a number of key issues he was at pains to show himself a critic of Grotius, and from time to time he was not above striking notes of self-congratulation somewhat in the manner of Hobbes as regards the original and valuable insights he himself had regarding both system and contents of the new theory of natural law. For example, Pufendorf and Grotius were at odds on the issue of what constitutes the “legal” character of the law of nature. For Grotius, what makes a law natural as such, including the element of obligation or duty that is the hallmark of any law, is that its meaning or content describes nature and that it expresses its moral and legal imperative in terms of obligations attendant upon this description of the way things are. This was precisely Grotius’s point in the neo-scholastic rhetorical flourish embodied in his notorious etiamsi daremus remark: some actions would be good or evil in themselves and carry an obligation on all humans to perform or not perform them even if, per impossibile, God did not exist to 281 Cf. supra, 59, 62-63. 282 Pufendorf, Law of Nature and Nations, 2.3.20; cf. 2.3.4 and especially 2.3.19.

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give them divine sanction.283 Pufendorf categorically rejected this view, however, and grounded the validity of natural law on the sanctions of an omnipotent God, without which there could be no law: all law derives from a superior who makes it and gives it sanction – no sanction, no law. Nor does he hesitate to criticize Grotius directly on this point: We cannot agree with Grotius when he says in his Prolegomena that natural laws “will have some place, even if we should grant – what can only be done with the greatest impiety – that there is no God … For if some man should devise such an impious and idiotic theory, and imagine that mankind had sprung from itself, then the dictates of reason could in no possible way have the force of law, since law necessarily supposes a superior.284

Suggesting that the position articulated by his intellectual father was “impious and idiotic” is scarcely a mark of filial respect, although it seems likely that Pufendorf’s irritation is directed more at the neo-scholastic sources of this Grotian position than at the Dutch master himself. As already mentioned, Pufendorf was always conscious of both the positions he wished to present and those he intended to reject. His motive for advancing a “new” natural law theory was to ground all political behaviour in a state of obedience to a superior – only in this way, he felt, could the essential of order and stability be guaranteed. Like Hobbes, and arguably to a degree like Bodin and Grotius as well, Pufendorf saw any inclusion of a right to disobey or resist public authority, any view that the people after having contracted into a political society retained a right to call to account and resist a tyrannical ruler, as the antithesis of sound government. And he was keenly aware of the medieval origins of such an alternative theory and of similar sources for the si Deus non datur position he criticized in Grotius. He devoted a lengthy chapter in the Specilegium controversiarum to rejecting this “absurd hypothesis of the Scholastics,” which, in its careful language, echoes the tone taken towards Grotius.285 Another illustration of Pufendorf’s ability to present his views against a background rejecting alternatives is his treatment of the social 283 St. Leger, The “Etiamsi Daremus” of Grotius, 43, note 37. It seems likely that Pufendorf appreciated the now commonly held view that Grotius derived his position on the “legal” basis in actions themselves of the natural law from Spanish neo-scholastic sources, specifically Gabriel Vasquez via Suárez’s De legibus. 284 Grotius, De iure belli, 1.1.10.5; cf. supra, 71. 285 Pufendorf, Law of Nature and Nations, 2.3.20; cf. 2.3.4 and especially 2.3.19.

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contractarianism of Thomas Hobbes. However little contemporary influence the “Hobbist” position might have had in his native land of England, Hobbes was well known and influential among contemporary continental political thinkers. As with Grotius, Pufendorf was highly complimentary to the Englishman on the score of Hobbes’s professed intention to convert politics into a science; and he was particularly struck by what he considered the appositeness of treating the state as an artificial man, quoting Hobbes with approval on this point from the Introduction to Leviathan. Pufendorf also admired Hobbes’s depiction of the state as a male creation with masculine features and virtues. At the same time he flatly rejected the details of Hobbes’s social contract theory as superficial in their outline of how a commonweal came into being through arrangements among individuals and between ruler and subject-citizens. Ironically, especially given the vitriol of his rejection of Grotius’s neo-scholastic conception of natural law, Pufendorf, as already described, substituted for the Hobbesian account a procedure derived from neo-Thomist Spanish political thought. Accepting that his own position was a traditional one, he subjected the “Hobbist” theory of a single agreement among free individuals to establish a sovereign ruler who was not subject to the agreement itself to some of the most trenchant criticism that can be levelled at the Leviathan on this score. In the detailed criticism he made of Hobbes in Law of Nature and Nations – the matter is absent from Duty of Man and Citizen – Pufendorf showed that he understood why Hobbes opted for the theory he did. Like Grotius before him and Pufendorf after, Hobbes wished to guarantee a ruler against subsequent withdrawal of obedience from any quarter among his subjects; and it was on this account that he explicitly rejected any covenant between ruler and ruled. Current Protestant resistance theories, along with the traditional concept of popular consent integral to medieval corporation theory, were Hobbes’s precise targets in this effort to keep the sovereign unencumbered by actual or implied residual rights in the people. Never having entered into an agreement with “the people,” the Hobbesian ruler could never be charged with having violated such a pact. The people made a contract among themselves to yield their liberties to a ruler; and once this was done that was an end to it: except for the right of self-preservation individual rights were forever alienated.286 Not all proponents of the traditional medieval corporationist view accepted that the people permanently alienated their right to rebel against a tyrant when they agreed to accept a ruler, of course; 286 For the inalienable interpretation of the lex regia, see Monahan, From Duties towards Rights: on Beza, 180–82; on Mornay, 270–72.

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this was only one of the two standard views concerning the lex regia, the mythical law whereby the Romans were said to have given authority to their kings. But even those who argued for the alienation of individual rights somehow kept open the legitimacy of resisting a tyrant, as Hobbes himself accepted.287 For Pufendorf, on the other hand, the Hobbesian position was flawed because he held that any coherent and satisfactory initial social contract establishing a state must contain some form of agreement directly involving whoever assumes authority.288 And he made the further telling point that if, as Hobbes held, all individuals in the social contract agreed only with one another, the possibility of a single individual going back on the agreement would eo ipso invalidate the agreement as a whole, and thus free everyone else from their obligation: if “[only] one does not render obedience, all the rest would be free of” their obligation.289 For his own part Pufendorf was satisfied that his “two-agreementsand-one-decree” form of original social contract adequately denied rights of resistance and any residual sovereignty to the people either collectively or individually: “Nor, indeed, when we admit the existence of an agreement between ruler and citizens, do these inconveniences necessarily follow, which Hobbes seemed to have had before his eyes.”290 He repeated here the alternative medieval assessment of the lex regia as leaving no rights in the people, although his argument differed on the point from this form of medieval corporation theory. For Pufendorf the people as a unity never possessed supreme authority or sovereignty in the first place and, thus, could not delegate it to a ruler. Nor did they, either as individuals or collectively, have the authority to punish or legislate; hence neither could they delegate these powers. For Pufendorf, apparently, individuals in the state of nature have only the power of self-defence; and the supreme authority of a state – sovereignty – is created by the simple act of individuals subordinating their wills and ability to exercise such powers as they have to a ruler’s will.291 At this point one might enquire: does Pufendorf have any response to an objection here based on the scholastic dictum nemo dat quod non habet (no one gives what they do not possess)? How can an agreement

287 288 289 290 291

Cf. infra, 135-36. Pufendorf, Law of Nature and Nations, 7.2.12. Ibid., 7.2.11. Ibid., 7.2.10. Ibid., 8.3.1–2.

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among individuals create and delegate sovereignty if the individuals do not possess this element either in themselves or collectively? It is commonplace and intuitively plausible to explain and interpret the particular attitudes and views of individual political thinkers in terms of the specific historical contexts and political commitments within which they wrote; and Pufendorf offers no exception to this rule. Perhaps, indeed, he was a particular if not spectacular case in point. Certainly his political connections and significant personal stature among the most important Protestant political authorities in Western Europe at the time did much to ensure that his views received a wide and widely influential reading, and they very likely also conditioned the views themselves. In summing up the features of continuity in this account of several centuries of continental European political thought, two elements of significance appear, both occasioned by ideological and political repercussions from the Protestant Reformation: (1) a short-term and soon-to-be submerged continuance of medieval constitutional thought in the resistance literature supporting the right of minority Protestant groups to reject the imposition of traditional Roman Catholicism by their political rulers and (2) the burgeoning “modern” advocacy of the concept of sovereignty designed to establish the “absolute” character of political authority. This authority was normally a single monarch whose right to rule trumped any claims by the people to resist. This stress on sovereignty and the entailed absolute rights of the monarch was clearly a reaction to the horrors of civil war in late sixteenth-century France and the prospects for similar conflict in Germany and elsewhere. Here is a serious diminution, but not a complete rejection, of the traditional elements of limit and consent. Development of this absolutist advocacy revolving around the new notion of sovereignty did not, however, eliminate completely the element of the people’s right to resist tyranny. Spokesmen for this modern view, Bodin, Grotius, and Pufendorf (and, shortly, Thomas Hobbes in England) all reluctantly but clearly acknowledged the concept of limit on legitimate authority, although in each case their rationale involved a kind of in extremis and by-way-of-exception argument in terms of the inherent individual right to self-defence rather than any such “political” right to oppose tyranny. On a more positive note, moreover, an enlargement of the advocated scope of personal rights can be seen in the insistence by both Bodin and Grotius on property rights and the necessity for the people to consent to any taxation imposed by the sovereignty.

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We revert in Part Two to an earlier era than Pudendorf’s to examine the political thought of post-Reformation seventeenth-century England. The first figure to be dealt with is John Selden, whose essentially positivist law-based position reflected his familiarity with continental thinkers like Grotius rather than continuing the relatively definitive Anglican establishment formulation of Richard Hooker.292 Subsequently, attention is paid to the two greatest early modern English language political theorists, Thomas Hobbes and John Locke, as well as to the mid-seventeenth century English radicals, the Diggers and Levellers. Hobbes, of course, antedates Pufendorf by some years and is considered by some to have been a significant influence on him,293 while Locke and Pufendorf were virtually exact contemporaries. Both were born in 1632, with Locke outliving Pufendorf by a decade.

292 Cf. Monahan, From Duties towards Rights, 273–93; 298. 293 Polladini has attempted to show that Pufendorf was one of Hobbes’s disciples – a bit of a stretch, I think. See Polladini, Pufendorf discipulo. One might note in this connection Pufendorf’s criticism of Hobbes’s Leviathan. See supra, Leibniz, nonetheless, considered Pufendorf to be an abject follower of Hobbes.

II

Seventeenth-Century England’s Response to the Reformation and Its Aftermath setting the context for a relatively comprehensive examination of English political thought in the 1600s entails going back to one of its important manifestations in the period before Pufendorf began to publish in the 1660s, a date by which England had already experienced the civil wars of the 1640s, a royal execution, and the short-lived Cromwellian republican commonwealth before the restoration of the monarchy under Charles II. Hobbes, too, had already published his major political treatises, and John Locke was beginning to articulate his early political and economic views. Understanding the significance of the Hobbesian and Lockean contributions to the history of Western European political thinking requires at least some account of earlier seventeenth-century English political writers, perhaps the most important of whom was John Selden, whose thinking was largely shaped by continental writers like Hugo Grotius. john selden In his authoritative monograph on the history of natural rights theory Tuck gives an important place to the early seventeenth-century political thinker John Selden for advancing the more conservative of two alternative, if not conflicting, developments from the formidable articulation of a natural rights doctrine put forward by Grotius in the De iure belli. As Tuck points out, Grotius’s human individuals were fiercely defensive of their original rights and so far capable of controlling their own lives that they could commit themselves to slavery; and yet their moral world was informed by the principle of sociability, with corresponding distributive and non-individualistic implications that implied that, in extremis, their most harmful commitments could be disregarded. For Grotius reconciliation of these two disparate points apparently lay either in the claim

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that “sociability necessitates respect for individual rights,”1 or in the earlier but never fully articulated view that what we might call “needs” take precedence over political property rights. This is but another illustration that genuine development in political (and social) theory occurs oftentimes by way of clarification and deepening realization of what is involved in the issues, concepts, and language of political discourse. To put the matter in bold perspective: we see clearly today, or should, that needs are social facts reflecting the real condition of individual humans who make up a social and political whole, and needs require to be taken account of in political theory and practice. Rights, on the other hand, are arguably political rather than social in the sense that they receive their specification, if not the totality of their nature, from the organization of individuals into political groupings. Both, then, must be adequately reflected and protected in an adequate set of laws.2 John Selden (1594–1654) was born in Salvington, Sussex, educated at Oxford, and called to the bar in 1612 at the age of eighteen. His intellectual and literary activities ranged well beyond the law, however, as his many writings, which began as early as 1610, attest. He edited Fortescue’s De laudibus legum Angliae in 1616, and a year later he published a Treatise on the Jews in England as well as the important work History of Tythes, the aim of which was to show that tithing was not based on either

1 Richard Tuck, Natural Rights Theories, Their Origin and Development (Cambridge: Cambridge University Press, 1979), 63. Tuck says that this was not convincing “psychologically”; and the history of natural rights for the next fifty years was indeed an argument over precisely the issue of whether or not a natural rights theory requires a strongly individualistic psychology and ethical theory. See Tuck, ibid., 63. Hobbes was the most famous figure to give an affirmative answer; but Selden gave the same answer earlier, and his contribution to the development of natural rights theories needs to receive more attention than has been given it. Cf. Tuck, ibid. In his latest treatment of Selden, Tuck stresses the startling parallels in doctrine between Selden and Grotius, developed apparently independently of each other. See Richard Tuck, Philosophy and Government 1572– 1651 (Cambridge: Cambridge University Press, 1993) 205; cf. 206–21. I follow Tuck generally in this account of Selden. 2 The issue of whether there are such things as “natural” rights – that is, qualities or properties inhering in individual humans independently of (i.e., in some sense prior to) an individual’s situation as a member of a political society, is perhaps the most contentious intellectual issue in contemporary political theory. This is so despite the fact that current politically correct rhetoric stridently asserts their reality.

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divine or natural law. Publication of this latter work got him in trouble with ecclesiastical and royal authorities, and the book was suppressed. He began an active political career in 1621, when he presented a protestation to the House of Commons, an action that again brought him into conflict with the king. Elected to the Commons in 1623, Selden played a prominent role in criticizing the king in Commons debates in 1628 and 1629, activity that led to his being committed to the Tower, where he remained until 1631. He was again involved in later Commons matters opposing the royal prerogative; but he took no active role in the trial and execution of Charles i. Nor did he involve himself in public affairs after 1649. Throughout a very busy public life, he continued to study and publish in a variety of areas, not the least of which was that of Oriental and Hebraic studies. In this latter connection one of his most interesting works was the De iure naturali et gentium, where he attempted to determine the contents of natural law by comparing it with Hebraic law. Perhaps his best known work is Table Talk. His Opera omnia, in three volumes of two tomes each, were published in 1725. Only a year or two younger than Grotius, Selden was the product of an intellectual world dominated by a mixture of the same three elements as figured in the background of the great Dutch political theorist: Protestantism, humanism, and Aristotelianism. An English humanist scholar with an interest in the English law, Selden emphasized the humanistic approach to legal studies employed on the continent throughout much of the sixteenth century, and he stressed the developmental and changing character of the law. The major thrust of his approach to the law, seen also among some of his English contemporaries and even earlier before becoming the standard theory of law in mainstream English legal thinking in the eighteenth century, directly rejected the notion that law embodied transcendental, timeless features. For Selden and many other contemporary legal thinkers, the view that laws express what is natural, in the sense of reflecting an Aristotelian fixed nature, or essence, was a mistake. He did not deny the existence of the law of nature but, rather, contended that all positive laws, including custom, could equally well be said to be “grounded on nature,” at least at the time of their original formulation or perception. A consequence of this view was to dilute the prescriptive character of natural law in contrast with positive law by the simple expedient of extending a prescriptive feature to all forms of legislation by terming them natural. This position was then extended through the argument that all laws were grounded, at least initially, on something common – that is, the law of nature. At the same time, however, perception of their meaning is accomplished by the understandably finite and limited rationality

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of those who developed and formulated them at the time (in the case of positive laws) or who recognized them in a less formal way as custom. The consequence, then, has been a plethora of varied, diverse, and even contradictory legislation and legal practices developed in a great variety of diverse jurisdictions, all emanating at some point in history, however, from a common, natural law source. But Selden’s point in stressing the “original” common character of the natural law basis for the wide diversity of existing legal formulations was not to argue for a sustained effort to discover their “real” meaning and, thereby, distinguish valid examples of positive law from invalid ones. Quite the reverse! His view was that efforts to correlate existing legislation with either natural or divine law were essentially bootless. The reasonable approach in any given jurisdiction such as England, rather, was a historical one that simply accepted existing legislation as the product of human decision making conducted within a given set of circumstances and, thus, controlled by the natural law only in a very general way. From this perspective the natural law functions largely as an impetus for human agents generally to be rational in their decision making and actions, with the result that “the wide variety of human laws on almost any topic made the obligatory rather than the permissive dimension of the law of nature [as he was to term them later] almost nugatory.”3 For Selden “the meerly immutable” core of natural law shrank to very little, perhaps in practice to nothing more than a general prescription that positive law be reasonable.4 He emphasized the role of humans in the formulation of law rather than its being handed down from some transcendental divine source, as his History of Tythes forcefully illustrates.5 Here was a mid-seventeenth century instance of modern legal positivism and a correlative and equally modern disinclination to validate law 3 Tuck, Natural Rights, 84. There is here something of the Suárezian distinction between positive and negative aspects of the natural law, although the Selden account emphasizes a positivist character in the Suárezian negative natural law. Where Suárez stressed the legitimacy of varying forms of legal arrangements freely consented to by humans, even though not in conformity with the conditions of the state of nature, Selden emphasized their binding force. On Suárez, see Monahan, From Duties towards Rights, 166–84. 4 Cf. the insistence by Thomas Aquinas that rationality is an essential characteristic of all law. See ST 1–2.90.1. 5 John Selden, “The History of Tythes,” in Opera omnia, ed. David Wilkins, 3 vols. (London: n.p., 1725), 3, cols. 1064–1298. A 1618 edition has been reprinted as a separate volume (Amsterdam: Theatrum orbis terrarum, 1969).

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only when it conforms to ethical prescriptions. Selden wanted to view civil law from the perspective of what it said and what its history showed it to have meant; and he dismissed his many critics on the grounds that they sought to insert normative criteria from questionably valid sources such as specific interpretations of the natural law and divine laws. At one point he even called the Ten Commandments, the ultimate normative bastion for Christian theorists concerning the authoritative content of the natural law, a “dubious source.”6 In the event, then, he denied any value to invoking the ius divinum or ius naturalis to interpret or analyze positive law, and he took the position that, if human law permitted a particular practice on a widespread scale, one could conclude from that fact that neither the natural law nor the divine law forbade it. Accordingly, there was no point in talking about the ius divinum or natural law as a ground for valid law because any such argument was essentially collapsible into a discussion of civil laws. His definition of ius divinum in Table Talk leads to the remark that all things are held by ius divinum, either immediately or mediately. Nothing has lost the pope so much in his supremacy, as not acknowledging what princes gave him. ’Tis a scorn on the civil power, and an unthankfulness in the priest. But the church runs to the ius divinum, lest if they should acknowledge what they have, they have by positive law, it might be as well taken from them, as given to them.7

It was Selden’s thinking in the area of natural rights, however, that exhibited the most significant feature of his political thought; for what he did was to transform sixteenth-century humanist juristic theory concerning the origins of political society and its description of pre-civil society as open-ended and almost anarchic into a doctrine of natural rights. His description of the original state of nature and the relationship there between individuals and material goods occurred in precisely the same context as did the comparable account given by Grotius, and it was a specific response to the Grotian thesis concerning legal rights over the high seas.8 As Grotius had been in the Netherlands, Selden, at the request of James I, was retained by his government in 1618 to make a legal case on behalf of English claims against Holland in a dispute over sovereignty in the North Sea and the North Atlantic; and he produced a draft that was never published. Asked again by the English Crown to make England’s case in a later dispute with Holland over fishing rights, he 6 Tuck, Natural Rights, 85. 7 Selden, “Table Talk,” in Selden, Opera, 3:2037. 8 Cf. supra, 58, 62.

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produced the Mare clausum in 1635, a text that arguably contains the same case Selden would have made in his 1618 manuscript (even though it is not possible to identify the earlier version in the 1635 work). Both presented a direct reply to Grotius, and both cited the Dutch legist’s De iure belli ac pacis and the Mare liberum.9 Selden began by accepting much of Grotius’s position concerning the original human community in the state of nature, where the notion of dominium operated from the beginning, as well as in the later division of territory, thereby accepting an essentially non-humanist account of dominion and allowing for considerable variation in the meaning of property rights. Dominion, which is a Right of Using, Enjoying, Alienating, and free Disposing, is either Common to all men as Possessions without Distinction, or Private and peculiar only to som; that is to say, distributed and set apart by any particular States, Princes, or persons whatsoever, in such a manner that others are excluded, or at least in som sort bared from a Libertie of use and Enjoiment.10

The only point on which he differed with Grotius in this portion of his doctrine involved Selden’s contention that the oceans as well as the land had been divided by agreement during the pre-civil society period – something Grotius had denied. Basing his case on a large number of historical references, a primary source for which was the non-Biblical Hebraic tradition grounded ultimately on the Talmud, Selden argued that the earth and its waters had been given in common to Adam and his descendants and that it was Adam’s descendants who made a first division. Subsequently, the Flood wiped out this original division of material goods, and, effectively, a second stage of all things being common came into being with Noah and his descendants, followed by a second division of property.11 Aside from the historical details about whether there were one or two divisions of the world, what was significantly different between the Selden and Grotian accounts was Selden’s emphasis on the contractual nature of the division of property and the independent character of this contract as regards the natural law. Where Grotius had indicated that the move from things held in common to private possession was somehow quite natural 9 Selden, “Mare clausum seu de dominio maris,” in Selden, Opera, 2:1179– 1437; Of the Dominion, or, Ownership of the Sea, tr. M. Nedham (London: 1650; Clark, N.J.: Lawbook Exchange, 2003). I cite the English translation. 10 Selden, Dominion of the Seas, 12. 11 This had been the standard interpretation of early postlapsarian history throughout the Middle Ages, Cf. Monahan, From Duties towards Rights, 140–41.

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and represented nothing more than a movement from what was by analogy a kind of original quasi-dominion or possession to the positive dominion of private ownership, Selden’s view of the transition served to make a much sharper distinction. He deliberately employed the distinction in the state of nature between what was obligatory and what was permissive as regards the natural law, a distinction used earlier in a similar vein and with something of the same purpose by Suárez.12 Property relationships, for him, fell into the permissive category, of course, being neither required nor precluded by the natural law but deriving their specification and validity from the free consent of the individuals who entered into them. Human individuals in the state of nature enjoyed a common ownership relation to material goods until “there intervened, as it were … a consent of the whole bodie or universalite of mankinde [by the mediation of something like a compact which might binde their posteritie] for quitting of the common interest or antient right in those things that were made over thus by distribution to particular proprietors.”13 Inasmuch as this account did not in itself specify allocation of the seas to private ownership, his intended ultimate thesis, Selden went on to stipulate that current “vacant” spaces in the world become the possessions of first occupiers and their successors. This also presumably would have been part of the initial contract of division. The force of Selden’s argument here against Grotius regarding whether the seas were open or closed, common property or private, in fact exploited an ambiguity or, perhaps better, a weakness in the Grotian formulation. In his early Mare liberum text Grotius had laid no special emphasis on the contractual nature of how private property arose because he argued that the seas did not become contractually allocated in terms of ownership; hence the relationship between the “common” and later “ownership” phases was described in similar ways, with no emphasis on a contract in the latter as a significant difference. In the De iure belli, however, Grotius emphasized contract as the essential element in private ownership. Selden was pleased, naturally, to exploit the notion of contract from Grotius’s later and more magisterial text; but because Grotius was nothing like as firm and legalistic on the point here as he had been in the Mare 12 “Right [ius] falls under a twofold consideration … as Obligatorie, it is known by such things as are commanded or forbidden … as Permissive, it is set forth by things whose use is neither commanded nor forbidden, but permitted … according to the will of the contractors.” See Selden, Dominion of the Sea, 12. On Suárez, see Monahan, From Duties towards Rights, 173–75. Selden had hinted at the same point in both the History of Tythes and his Notes on Fortescue. Cf. Tuck, Natural Rights, 87. 13 Selden, Dominion of the Sea, 21.

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clausum there were limitations to Selden’s ability to cite Grotius against himself. The dispute between them over the nature of the seas as common or private, however, is not what makes for interest here; rather, it is Selden’s view that ownership comes about by contractual agreement among individuals in any area untouched by an obligatory feature of the natural law. Though Selden seems to have taken the distinction between obligatory and permissive aspects of the natural law from Spanish scholastic proponents of natural law theory, as already suggested, his exploitation of the permissive aspect of natural law simultaneously moved him to a more positivistic approach to the civil law. With a permissive aspect to natural law and the empirical realities of varied and diverse orders of legal jurisdiction showing a vast spectrum of what human beings have developed and spelled out for themselves as obligations and agreements they are willing to impose on one another, it seems that a large permissive element exists in the natural law. What then remains that is obligatory? We have seen already that Selden’s view on the obligatory aspect of natural law made clear that its contents were minimal and conformed generally to the concept of contract: “Such things … as to give every man his due, not to forswear, and the like,”14 which can be construed appropriately under the precept: “Keep your convenants.”15 Like Grotius, Selden described the original state of nature as one of individual liberty and natural rights, and any subsequent state of law in civil society as one wherein the polity’s purpose was to protect these rights and whose laws really expressed the citizens’ obligations to the rights of others. Unlike Grotius, however, Selden was puzzled by the relationship between the law of nature and the rights of nature. Two questions concerned him: (1) why should rational individuals possessed of a full complement of natural rights be under laws at all? and (2) what mechanism moved individuals from extensive freedom to obedience under law? His answer was given in historical terms, and it produced his most original and influential work of political thought, the De iure naturali et gentium iuxta disciplinam Ebraeorum (1640).16 As already noted, Selden employed a view that had been standard for some time in descriptions of the original state of nature: individuals 14 Tuck, Natural Rights, 87ff. and note 14; Selden, Opera, 2.col.1192. 15 Selden, “De iure naturali,” in Selden, Opera, 1:456–59. 16 John Selden, “De iure naturali et gentium iuxta disciplinam Ebraeorum,” in Selden, Opera, 1:166–757. There is no English translation. Tuck considers this work “the first example of the English interest in the nature of moral obligation, and of the scepticism found in many later seventeenth-century English philosophers over whether there can be an account of obligation distinct from one of motivation.” See Tuck, Natural Rights, 90.

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were naturally free. He took pains in the De iure naturali, however, to express this point in purely conceptual terms, providing a definition of liberty expressed as logically prior to any further considerations: “[Under] the idea of liberty … we hypothesize such a state of boundless liberty for the purpose of our argument, just as a line is often extended infinitely to demonstrate something in geometry.”17 His purpose clearly was to equip himself with a simple conceptual antithesis between liberty and law in a form that strikingly anticipates Hobbes. Liberty as the antithesis of law admits of no limitation or qualification where limitation or restriction obtains either through force or law. Liberty, correspondingly, is removed. Selden’s real point, however, went to his conception of obligation, which he construed in terms of punishment in a premonition of a very pervasive tradition in contemporary ethical theory.18 Selden considered obligations to be the springs for both civil (positive, social) and personal (moral, individual) behaviour: social obligations were expressed in terms of physical coercion and physical punishment in the event of disobedience, with moral obligations being an integral feature of Christianity (as, indeed, of any ethical system, religious or philosophical). On the significant issue of where to locate the basis for his concept of obligation Selden opted for what he must have considered a logically prior notion: punishment. In doing so he took one side directly in the perennial issue of whether to define punishment as retribution or deterrence, something he saw and stated clearly, criticizing Plato for not taking a retributivist, utilitarian view of the matter.19 His reasoning here is instructive, if not entirely convincing. For Selden it is not possible for human beings to know or conclude on their own that they ought not to perform a given action without some clear expression of its inappropriateness in a particular form: the inappropriateness must be spelled out so as to express unmistakably the undesirable consequences of performing it and must identify the punishment to be expected for doing so. “I cannot fancy to myself what the law of nature means, but the law of God. How should I know I ought not to steal … commit adultery, unless somebody told me so? Surely ’tis because I have been told so.”20 Getting down to the nub of things as regards his ultimate notion of natural and other kinds of law, Selden seemed in the last analysis to relate the 17 Selden, “De iure naturali,” in Selden, Opera, 1:105. 18 Cf. Moritz Schlick, Problems of Ethics, trans. David Rynin (New York: Prentice Hall, 1939), chap. 7. 19 Selden, “De iure naturali,” in Selden, Opera, 1:109–10. 20 Ibid., 1:107.

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obligatory feature of law to the element of punishment and the need for its being known to those on whom it may fall. Accordingly, the force or obligatory character of natural law is grounded in the individual’s awareness of punishment for failure to conform. For natural law to be functional, then, individuals free by nature – that is, having no limitations whatever on their natural behaviour – must nonetheless somehow be or become aware of a punishment factor entailed in certain modes of acting; and presumably this could occur either from experience or in virtue of being directly informed by the author of this law – God. For Selden, it is clear, coercion (or punishment) constitutes the basis for both law and political authority, and he reaches this conclusion largely by collapsing natural into positive law, with the latter ultimately being the “positive” law of the Christian commandments. Selden’s position thus is a flat rejection of the traditional medieval and neo-scholastic natural law tradition, certainly as it was generally understood and articulated during the Reformation era by such notable Catholic theologians and publicists as Suárez and Cajetan, who held that the obligatory contents of the natural law were somehow equated with right reason itself and, thus, intuitively obvious to rational human beings. Selden faced this issue squarely and, as already mentioned, argued against the intuitively obvious character of what Christian contemporaries, both Protestant and Catholic, insisted were essential elements of the natural law: the Ten Commandments. For him the obligatory character of the Decalogue rested on individuals knowing what punishment they could expect from violating these commandments rather than on any intuitive rational perception of the actions they prohibited as being intrinsically evil. He admitted that in taking this position he was collapsing the law of nature into the law of God, but he saw no alternative. “I cannot fancy to myself what the law of nature means but the law of God … Whence then comes the restraint? From a higher power, nothing else can bind. I cannot bind myself … It must be a superior power, even God Almighty.”21 Appealing to the evident plurality of current and historical legal and moral responses to very basic forms of human behaviour and recognizing fundamental differences over the most serious moral and legal issues, he rejected the view that natural law precepts could be intuitively obvious.22 Applying this general attitude to how humans moved from the state of nature to civil society, Selden then repeated the standard sixteenth-century 21 Ibid. 22 Ibid., 1:137–41.

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juridical humanist and neo-scholastic view that “there once was a time when men wandered through the countryside like animals, sustaining a bestial existence and managing their lives by brute force rather than reason.”23 Every individual was free and equal in rationality in this state, and the critical issue was what motivated these free individuals to form a political society. As we have seen, this for Grotius was the locus of greatest tension as regards consistency insofar as, ultimately, he invoked the Aristotelian notion of natural sociability, implying that it was natural for individuals to want to come together, a view that squared uneasily with his earlier description of individuals as seemingly free and equal atomic units. Selden handled the matter of consistency between solitary and political stages somewhat more smoothly by basing the decision or agreement to come together on a particular type of self-interest. He discounted the Aristotelian notion of natural sociability as grounds for individuals agreeing to form a polity by challenging the whole view that rationality was the basis for insight into the natural law. Humans simply did not employ reason as the method for determining intuitively how they should act; hence it was not through the use of intuitive reason that they came to agree to live in political society under some form of authority. “For pure, unaided reason merely persuades and demonstrates, it does not order, nor bind anyone to their duty, unless it is accompanied by the authority of someone who is superior to the person in question … And where is such a disparity necessary for obligation to be found when everyone, as we have said, has the same rights as everyone else, and there was no civil society?”24 Selden was skeptical about the reality of moral obligation independent of an individual’s purely self-interested psychological motivation, as was Hobbes somewhat later, although Selden was more careful than the latter in his means of expression, thereby avoiding some problems of ambiguity and even apparent inconsistency found in Hobbes’s Leviathan.25 The only difference between the two here, however, it would seem, is that Selden was prepared to ground moral obligation via individual psychological motivation on the individual’s knowledge of God’s punishment, that is, to base obligation on the concept of punishment either as known or at least as reasonably anticipated. The anticipation, however, was clearly an individual psychological motivating factor, not something of a social

23 Ibid., 1:139. 24 Ibid., 1:139–40. 25 Cf. infra, 136.

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or merely “natural” type, a forerunner, it would appear, of Hume’s grounding of moral obligation on sentiment rather than reason.26 A considerable difficulty remained for Selden at this point, however, regarding how God had historically commanded specified actions to be done or avoided by communicating the notion of punishment as action-specific and, thereby, inserting the element of obligation into the arena of human behaviour. His approach to this problem was again historical. Employing an analysis of the history of God’s dealings with humans to show how His commandments had been made clear, Selden identified two traditions through which God dealt with humans: (1) the Old Testament Jewish tradition that led to Christianity and (2) the Talmudic tradition that did not. And again he argued reductively concerning the content of God’s natural law as present in these sources: ultimately, very little could clearly be identified as fundamental content of the natural law on the basis of confirmatory evidence from both Old Testament and Talmudic sources. In the Talmudic tradition, in fact, only seven actions were prohibited in the instructions given by God to Noah: idolatry, blasphemy, homicide, incest, theft, the eating of live animals, and disobedience to civil powers. In the ten Old Testament commandments, some were different; others, omitted.27 Without going into the details of how Selden organized his material on the point and reduced it further in terms of what might be called the common denominator of Christian and Talmudic injunctions from God, it is clear that, ultimately, he accepted a single, absolutely fundamental form of obligation encapsulated in the simple nostrum: stick to any contracts made. Inasmuch, moreover, as the first such contract was the origin of political society itself, Selden found himself supporting all the hard sayings concerning an individual’s obligation of obedience to the authority of a political ruler, even though he urged such obedience on quite different grounds than did the providentialist political theorists of the early Reformation period, who simply repeated Romans 13:1. Selden obviously preferred the kind of logical argumentation found in Bodin and Grotius. As a social contract theorist Selden stressed that the validity of contracts freely entered into by consenting rational individuals was unqualified and irreversible; and he expressed a strong form of the Grotian position concerning the origin and nature of political authority without the latter’s implicit escape clause on the grounds of custom’s traditional appeal to limit 26 David Hume, An Enquiry Concerning the Principles of Morals, ed. L.A. SelbyBigge, 2nd ed. (Oxford: Clarendon Press, 1962), 1:134–38; Appendix I, 234–36. 27 Tuck, Natural Rights, 95. Tuck notes, however, that Selden “modified this position extensively” but not so as to vitiate his general purpose. See ibid.

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as related to what is intuitively reasonable. For Selden a contract of total servitude was possible and could not be broken, period.28 Selden’s theory of obligation thus took him much farther along the road to absolutism than Grotius ever travelled. He provided no place for a resistance theory, and on grounds of logical and legal consistency he categorically rejected the Grotian qualification on the right of private property in the face of extreme need, criticizing Grotius directly for allowing an affirmative answer to the question of whether individuals may plead an original common right in extreme necessity to justify taking another’s property: his own view was that no common right survived. He was prepared grudgingly and somewhat equivocally, however, to consider that some duty of charity might exist in such circumstances, arguing this point in terms of the Hebraic law on almsgiving.29 Although the assertion itself is a good example of reading a modern assessment back into an era whose inhabitants may not themselves have shared it, hindsight shows that Selden set a significant part of the stage for Hobbesian theorizing about the political leviathan. We may consider Hobbes a more significant jurisprudential and political thinker than Selden, however, even though their contemporaries may not have agreed. Hobbes is certainly the more important in terms of both the deliberately comprehensive and scientific character of his political thought and in the overall impact of his writings, especially Leviathan, on the later history of political thinking. th o m a s h o b b e s A contemporary and, equally, a defender of the Stuart monarchy said of Thomas Hobbes: “With no small content I read Mr. Hobbes’s book 28 If our fathers had lost their liberty, why may we not labour to regain it? Answer: We must look to the contract, if that be rightly made, we must stand to it. If we once grant that we may recede from contract, upon any inconveniencing that may afterwards happen, we shall have no bargain left … Keep your contracts. So far a divine law goes, but how to make our contracts is left to ourselves … Every law is a contract between the king and the people, and therefore to be kept. An hundred men may owe me an hundred pounds, as well as any one man, and shall they not pay me because they are stronger than I? Objection: Oh but they lose all if they keep that law. Answer: Let them look to the making of their bargain. (Selden, “De iure naturali,” in Selden, Opera, 1:456–59) 29 Selden, “De iure naturali,” in Selden, Opera, 1:638.

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De cive and his Leviathan, about the rights of sovereignty, which no man, that I know, hath so amply and judiciously handled.”30 Hobbes has continued to enjoy such a reputation, both because of his “ample” handling of the subject matter of political thought and because of the breadth and depth of the thought itself. Born the son of an Anglican priest in 1588, he studied at Oxford from 1603 to 1608, after which he took an appointment as tutor and secretary to the Cavendish family. He toured France with his pupil, the young Cavendish, in 1614–15, and later worked occasionally as secretary to Francis Bacon in the period c. 1618–25. He visited the continent several times again, in 1629–30 and 1634–36, and became interested in continental science and philosophy. He lived in France for some ten years, from 1640 to 1651, having fled to Paris after failing to be elected to the 1640 Short Parliament and becoming involved on the royalist side in its struggle with Charles I. In this connection Hobbes himself tells us that: When the Parliament sat, that began in April 1640, and was dissolved in May following, and in which many points of the regal power, which were necessary for the peace of the kingdom, and the safety of his Majesty’s person, were disputed and denied, Mr. Hobbes wrote a little treatise in English, wherein he did set forth and demonstrate, that the said power and rights were inseparably annexed to the sovereignty; which sovereignty they did not then deny to be in the King; but it seems they understood not, or would not understand that inseparability.31

On his return to England in 1651 he again took employment with the Cavendish family and became involved in advocacy for adherence to the Cromwellian regime during the Engagement controversy of the 30 Thomas Filmer, Patriarcha and Other Political Writings, ed. P. Laslett (Oxford: Blackwell, 1949), 239. 31 Thomas Hobbes, “Considerations upon the Reputation, etc.,” English Works, ed. Sir W. Molesworth, 11 vols. (London: Bohn, 1839–45), 4:14. Aubrey clearly had read this for his biography of Hobbes. Cf. John Aubrey, Brief Lives of Contemporaries, set down by John Aubrey, between the Years 1669 & 1696, ed. Andrew Clark, 2 vols. (Oxford: Clarendon Press, 1898), 1:333–34. Tuck notes that Hobbes was suggested as a candidate for the parliamentary seat for the borough of Derby by the Earl of Devonshire in January 1640 but that he probably stood down before the poll, having experienced the strength of anti-royalist sentiment. See Tuck, Philosophy and Government, 314.

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1650s.32 He lived in England for the remainder of his long life, engaging during the fifties and sixties in scientific and politico-theological controversies that brought him into conflict with a variety of scientific and Anglican ecclesiastical authorities. He was granted a small pension by the restored Charles II and died in 1679.33 Hobbes’s first publication was a translation of Thucydides (1629),34 an early indication of the direction of his political thinking: Thucydides appealed to him as a clear-eyed analyst of how democratic government could be manipulated and corrupted. His first directly political treatise was The Elements of Law, in which, among other things, he excoriated the parliamentary party, denouncing those who “when they are commanded to contribute their persons or money to the public service … think they have a propriety in the same distinct from the dominion of the sovereign power.”35 Written in 1640 and circulated in manuscript form from the time of its composition, it was not published in full until 1650. He 32 See Quentin Skinner, “Conquest and Consent: Thomas Hobbes and the Engagement Controversy,” in The Interregnum: The Quest for Settlement 1649–1660, ed. G.E. Aylmer (London: Macmillan, 1972), 79–98. Hobbes’s argument was simply that sovereignty lay with the political entity capable of exercising the coercive power of the sword and that, accordingly, subjects had an obligation to obey such an authority. Skinner has made a life-long study of Hobbes and the historical and intellectual contexts of his writings. His latest monograph publication, Quentin Skinner, Reason and Rhetoric in the Philosophy of Hobbes (Cambridge: Cambridge University Press, 1996) offers an extended and brilliant analysis of the shift in Hobbes’s method and literary style from a scientific mode of expression in his earlier writings (The Elements of Law and De Cive), to one embodying the characteristics of humanist rhetoric in Leviathan. See in particular the Conclusion of Skinner, Reason and Rhetoric, 426–37. 33 Two autobiographies of Hobbes exist, one in English verse and the other in Latin prose. The English verse text is in Thomas Hobbes, Leviathan with Selected Variants from the Latin Edition of 1668, ed. Edwin Curley (Indianapolis/ Cambridge: Hackett, 1994), liv-lxv; portions of the Latin text in English translation, ibid., lxiv-lxv. The standard Hobbes biography is Aubrey, Brief Lives, a few portions of which are also found in Curley, Leviathan, lxv-lxxiv. Hobbes’s verse autobiography appeared first in Latin. See Molesworth, Opera latina, 1:lxxxv-xcix. 34 A good modern edition is Thucydides, the Peloponnesian War, tr. Thomas Hobbes, ed. David Grene (Chicago: University of Chicago Press, 1989). 35 Thomas Hobbes, The Elements of Law Natural and Politic, ed. F. Toennies (Cambridge: Cambridge University Press, 1928), 2.1.13; 2.8.4.

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wrote the De cive as the third part of The Elements in France in the early 1640s, publishing it separately in 1642. His best known treatment of political thought, the Leviathan, also written while Hobbes was living in exile in France, was published in 1651. Hobbes produced Of Liberty and Necessity in 1654 and a major scientific work on logic and physics in 1655. Later writings include Behemoth,36 a history of the English Civil War written in the 1660s but only published in 1679, and A Dialogue … of the Common Laws of England also written in the 1660s and published posthumously in 1681. While the personal support Hobbes gave the royalist cause of Charles I in the 1630s and 1640s is now generally well understood and accepted, Hobbes’s self-description as a scientific thinker committed to formulating a philosophical system derived mathematically from simple and basic principles has not only caused many to take his political writings largely at face value as works of disinterested scholarship but it has also made it advisable to locate his political thought within the general context of his overall philosophical system. Moreover, the fact that the First Part of the Leviathan offers an examination of human nature followed by a formal study of the commonwealth only in the Second Part tends to legitimate such an approach. And we should also remember that, even though he asserted that his other formal treatment of political thought (which he published separately), the De cive, could stand on its own as a theory of polity, his original intention was to make it one unit in a three-part treatment of reality as a whole and humankind’s place in it.37 Another feature of the general intellectual frame of reference within which Hobbes located his formal political thought was the position he took on the voluntarist side of the traditional theological debate concerning the relative dominance of will over intellect in the divine nature: he reflected this view in the parallels he drew between the legitimate exercise of divine and of temporal political authority. The seventeenthcentury conventionality of this form of philosophical theology has not always been sufficiently recognized in modern histories of political

36 The best current edition is Thomas Hobbes, Behemoth, or the Long Parliament, ed. Stephen Holmes (Chicago: University of Chicago Press, 1990). 37 Thomas Hobbes, “De cive,” in Hobbes, English Works, 1:73–74. Cf. the standard English edition of the De cive: Thomas Hobbes, De cive: The English Version, entitled in the first edition Philosophical Rudiments Concerning Government and Society, ed. Howard Warrender (Oxford; Clarendon Press, 1983), 35–36.

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thought, even though it represented the standard basis for criticism of Hobbesian thought in the latter half of the seventeenth century.38 The Elements of Law shows clearly that its author consciously developed political views from a set of philosophical assumptions originating in his adoption in the 1630s of the continental scientific and philosophical thought of thinkers like Galileo and Descartes.39 It reflects a rejection of conventional Aristotelian and neo-scholastic views concerning the nature of the physical universe and human beings: total rejection of the metaphysics, psychology, and theology of current Christian Aristotelianism, with the substitution of more empirically based scientific notions and different philosophical assumptions according to which the material world is not constituted of Aristotelian essences embodied in individuals of specific types, with these essences being the natures of things as well as the objects grasped by human intelligence.40 Rather, only individual things exist, and the idea that human terms for them serve only the purpose of mental manipulation is a form of seventeenth-century

38 For details of such criticism see infra, 129-31. Cf. J. Bowle, Hobbes and His Critics; A Study in Seventeenth Century Constitutionalism (London: Frank Cass, 1955; reprint 1969); S.I. Mintz, The Hunting of Leviathan: Seventeenth-Century Reaction to the Materialism and Moral Philosophy of Thomas Hobbes (Cambridge: Cambridge University Press, 1962); Quentin Skinner, “The Ideological Context of Hobbes’s Political Thought,” Historical Journal 9 (1962): 286–317 (reprinted in M. Cranston and R. Peters, eds., Hobbes and Rousseau, [Garden City, ny: Anchor Books, 1972], 109–42); “Thomas Hobbes and his Disciples in France and England,” Comparative Studies in Society and History 8 (1966): 153–217. A good summary of contemporary criticism of the Hobbesian voluntarist natural theology is Mark Goldie, “The Reception of Hobbes,” in Burns and Goldie, Cambridge History of Political Thought 1450–1700, 589–94. 39 Tuck offers a detailed account of the relationship between Galileo, Descartes, and Hobbes, and the latter’s close personal involvement with his contemporary intellectuals in France and Italy. See Richard Tuck, Philosophy and Government, 294–303. 40 A good illustration of Hobbes’s rejection of the Aristotelian theories of species and human sense experience is his view that qualities in a material object that cause sensations “are in the object … but so many several motions of the matter, by which it presseth our organs directly. Neither in us that are pressed, are they anything but divers motions … sense, in all cases, is nothing else but the original fancy, caused by the pressure, that is, by the motion of external things upon our eyes, ears, and other organs … thereunto ordained” (Hobbes, Leviathan, 1.1.4). A splendid new edition of Leviathan is the Curley text mentioned supra, note 33. I cite this edition by page number as well as Hobbesian internal textual division when the latter is insufficiently precise.

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nominalism that paralleled Hobbes’s earlier noted voluntarism and echoed the comparable medieval views of William of Ockham.41 For Hobbes, moreover, living things themselves, including humans, are purely material; they are “engines” whose movements and actions are explicable through the laws of mechanics.42 Human knowledge of material things is not knowledge of their natures, then, but only knowledge of how they move. Accordingly, while Hobbes took a traditional approach to political doctrine as a theory of social and political behaviour consistent with one’s notion of the kind of thing a human being is, what is strikingly different in his political thought is that, whereas earlier conventional thinkers considered humans to be a composite of material body and spiritual soul whose actions are free and self-directing, the Hobbesian state is peopled by purely material and mechanically behaving atomic units. This is the sense in which Hobbes’s position is scientific rather than philosophical: its basic presuppositions are positivistic rather than metaphysical. At the same time, nonetheless, and in a fashion that strikes a natural law theorist of the traditional medieval kind as paradoxical if not simply self-contradictory, he accepted that humans exercised liberty in the state of nature as free and self-determining entities. Like many proponents of determinism in his own day and later, Hobbes saw no incompatibility between his mechanistic view of human nature and the assertion that humans act freely. Spinoza was a more sophisticated advocate of a comparable philosophical position.43 Yet while Hobbesian political thought seems to make much of the concept of individuals as physical atomic units who constitute a commonwealth by coming together to avoid leading lives of solitude, conflict, and brutish nastiness in the state of nature and was intended as a His most sustained critique of Aristotelian philosophy was his Critique du De mundo de Thomas White, written in France in 1642–43 but, surprisingly, not published in any form until 1973. Cf. also his “Short Tract” in Thomas Hobbes, Elements of Law Natural and Politic, ed. F. Toennies, 152–67, where Hobbes explained psychological causation in terms of the laws of mechanics. See also Leviathan, 46, 21, 17; and De cive, 5.5. 41 See Monahan, Consent, Coercion and Limit, 239–42. 42 Hobbes, Leviathan, Intro., 3. 43 Hobbes and Spinoza were familiar with each other’s writings, and there is an interesting comment by Hobbes suggesting that his own religious views were closer to those of Spinoza than he himself had thought prudent to express in print. See Edwin Curley, “‘I Durst Not Write so Boldly’, or How to Read Hobbes’ Theological-political Treatise,” in Daniela Bostrenghi, ed., Hobbes e Spinoza, Scienza e politica (Naples: Bibliopolis, 1992), 497–593.

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direct attack on Aristotelian philosophical thought in general, his theory of polity differs considerably from modern social contract theories, with their emphasis on political individualist units. In fact, it has more in common with the medieval scholastic constitutional theory and traditional Aristotelian political thinkers’ politics than is sometimes acknowledged, with significant origins in the neo-Thomist political doctrine of late medieval Spanish neo-scholastics.44 With the radical difference that, for Hobbes, the state of nature is one of war not peace, his social contract theory in particular derives basically from this source, while probably also owing something by way of specific detail of language to Protestant resistance publicists and Scottish writers like Buchanan and Barclay.45 This probably is so because, as Baumgold has pointed out recently, Hobbes appears to have been less interested in the theoretical problem of how to establish a subject’s obligation to political authority than in outlining a political system that offered no place for the kind of resistance theory put forward in late sixteenth-century Protestant political writings and whose expectable practical effect he saw as the bane of English political life in the 1630s and 1640s.46 His rhetorical oversimplification of the dichotomy between the state of nature and political society, producing paradoxical if not logically incoherent contrasts between these two conditions, is further evidence of this, as we shall see shortly. Though many contemporary political theorists are beguiled by Hobbes’s psychological egoism and his description of human individuals as selfdirecting isolated units unencumbered in their original natural state by the effective restrictions and limitations of moral prescriptions, they have trouble with his obvious acceptance of political absolutism as well as with the traditional form of his argument. In this latter respect, as just noted, Hobbism reflected a dependence on Aristotelian political thought that was at odds with his overall philosophical posture, which can best be construed as a massive rejection of the Aristotelian neo-scholasticism still so much a part of the conventional intellectual scene of his day. Indeed, Hobbes was 44 Doris Baumgold, Hobbes’s Political Theory (Cambridge: Cambridge University Press, 1988), 11. Skinner notes that in The Elements of Law Hobbes still subscribed to the Spanish neo-scholastic natural law view of Suárez, which holds that, originally, all polities must have been democracies. By the writing of the De cive, however, he had developed his notion of a commonwealth coming into being by way of covenant. See Skinner, Passion and Rhetoric, 311. See Monahan, From Duties towards Rights, 128–84, passim. 45 For a treatment of these resistance theories see Monahan, From Duties towards Rights, 239–72. 46 Baumgold, Hobbes’s Political Theory, 21–35 and passim.

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pitiless in criticizing what he saw as the benighted Aristotelianism of the “schoolmen” on the English university scene of his own day at Oxford and Cambridge, and he shamelessly proffered his own writings as a proper and necessary corrective for such superstitions.47 Hobbes’s contemporary critics, notably Archbishop John Bramhall and, somewhat later, Gottfried Leibniz, who endorsed the Bramhall critique of Hobbes in his Theodicy (1710) as well as in the somewhat more accessible essay Meditation on the Common Concept of Justice (c. 1702), made this point in considerable detail.48 Some have also contended that the connection between Hobbes’s theory of psychological egoism and his political thought became more attenuated in the De cive and Leviathan from its first expression in The Elements of Law; and, of course, there is the further issue of how to correlate these three texts with one another.49 Nonetheless, I shall take the Leviathan, the most extensive and systematic of them, as the benchmark for Hobbes’s political thought, making occasional reference to the two earlier political works only where they seem to express significantly different views or other evidence of change or development. Hobbes set out his new and deliberately dramatic scientific description of political society at the very beginning of the Leviathan: For by art is created that great leviathan called a commonwealth, or state, in Latin civitas, which is but an artificial man; though of greater stature and strength than the natural, for whose protection and defence it was intended; and in which the sovereignty is an artificial soul, as giving life and motion to the whole body,50 47 Hobbes, Leviathan, “Review and Conclusion,” 16, cf. Leviathan, 1, 5; 46 passim; 22. 48 Goldie, “Reception of Hobbes,” in Burns and Goldie, Cambridge History of Political Thought, 592. 49 Baumgold makes a noble stab at this in her fine monograph, Hobbes’s Political Theory (see Table 1: Political chapters of The Elements of Law, De cive, and Leviathan [table of contents], 12–13). Tuck addresses the issue of doctrinal continuity among The Elements of Law, De cive, and Leviathan much more thoroughly, concluding that variances in emphasis and length of treatment of certain points reflecting different literary contexts do not show any significant changes in basic Hobbesian political doctrine. See Tuck, Philosophy and Government, 298–335, passim. In a recent work Skinner provides an extensive and persuasive account of Hobbes’s employment of apparently contradictory, or at least antithetical, uses of scientific and rhetorical forms of expression. See Skinner, Passion and Rhetoric. 50 Hobbes, Leviathan, Intro., ix.

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having earlier described human (and other forms of organic) life as but a motion of limbs, the beginning whereof is in some principal part within; why may we not say, that all automata (engines that move themselves by springs and wheels as doth a watch) have an artificial life: for what is the heart, but a spring; and the nerves, but so many strings; and the joints, but so many wheels.51

He goes on immediately to list the parts of the work: To describe the nature of this artificial man, I will consider First, the matter thereof, and the artificer; both which is man. Secondly, how and by what covenants it is made; what are the rights and just power or authority of a Sovereign; and what it is that preserveth or dissolveth it.52

It has already been noted that individual humans are described in the first part of the Leviathan as purely material entities whose actions are governed by the mechanical laws of motion. Speaking next of humans in groups, Hobbes described all individuals as equal in terms of their ability to harm one another: “the weakest has strength enough to kill the strongest”;53 and he proceeded from this dismal assessment of humans in the state of nature to his well-known description of that state as one of unremitting conflict: “During the time men live without a common power to keep them all in awe, they are in that condition called war; and such war, as is of every man, against every man … [in] continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”54 Here, too, we find the Hobbesian statement that arguably has drawn the greatest opprobrium from his critics: The desires, or other passions of man, are in themselves no sin, no more are the actions, that proceed from those passions, till they know a law that forbids them … To this war of every man against every man … nothing can be unjust … the notions of right and wrong, justice and injustice have there no place. Where there is no common power there is no law: where no law, no injustice. Force, and fraud, are in war the cardinal virtues.55

51 Ibid. 52 Hobbes, Leviathan, Intro., x. Hobbes lists the contents of Parts Three and Four here as well, but there is no need to discuss them in our brief presentation. 53 Hobbes, Leviathan, 13, p. 110. 54 Ibid., pp. 112–13. 55 Ibid., p. 115.

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Hobbes then proceeded to distinguish between a right of nature and a law of nature, a distinction that has caused considerable difficulty among his interpreters and more than an occasional charge that Hobbes was “confused” if not contradictory on the point, another example of the difficulties a text of earlier provenance affords those whose interpretive frame of reference is consciously or unconsciously taken from a later paradigm of discourse.56 It seems a bit presumptuous to accuse as astute a thinker as Hobbes of self-contradiction even when his text sometimes exhibits a certain carelessness of language that reflects a rhetorical presentation of the case he was attempting to make. Hobbes defined the right of nature as “the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own Judgment, and Reason, hee shall conceive to be the aptest means thereunto.”57 Hobbes had in mind here what is nowadays termed a “subjective” right, a faculty or power inherent in individuals as the kind of beings that self-validate their free or autonomous actions. He thus set aside the traditional natural law position, which construed ius (right), as in ius naturale (natural law or law of nature), to designate a set of objective qualities or conditions in things themselves expressive of the overall pattern of creation to which free human behaviour ought to conform, and which could be known by human individuals in virtue of their own participation in it as rational beings. Where traditional Aristotelian neo-scholastic thought frequently construed ius as either “law” or “right,” even though they also 56 A good recent investigation of this matter is D.J.C. Carmichael, “The Right of Nature in Leviathan,” Canadian Journal of Philosophy 18 (1988), 257–70. Carmichael lists among those who charge Hobbes with confusion concerning the nature of a right: Howard Warrender, The Political Philosophy of Hobbes (Oxford: Clarendon Press, 1957), 20–21; John Plamenatz, Man and Society (London: Longmans, 1963), 1, 39; Gregory S. Kavka, Hobbesian Moral and Political Theory (Princeton: Princeton University Press, 1986), 299; D.D. Raphael, Hobbes: Morals and Politics (London: Allen and Unwin, 1973), 51 and “Obligations and Rights in Hobbes,” Philosophy 37 (1962): 345–52; F.C. Hood, The Divine Politics of Hobbes: An Interpretation of Leviathan (Oxford: Clarendon Press, 1964), 86; John Laird, Hobbes (London: E. Benn, 1934), 177: F.S. McNeilly, The Anatomy of Leviathan (Toronto: Macmillan, 1968), 171; J.R. Pennock, “Hobbes’s Confusing ‘Clarity’ – The Case of ‘Liberty,’” in K.C. Brown, ed., Hobbes Studies (Oxford: Basil Blackwell, 1965), 101; R.S. Peters, Hobbes (Harmsworth: Penguin Books, 1956), 189; A.G. Wernham, “Liberty and Rights in Hobbes,” in Brown, Hobbes Studies, 117. 57 Hobbes, Leviathan, 1.14.1.

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knew and employed the distinction between ius and lex, Hobbes rigorously employed this distinction in a mutually exclusive sense.58 For Hobbes, then, a natural right was something all individuals possess in the state of nature that goes to the issue of self-preservation and that entails the absence of “external impediments.”59 This last feature is sometimes mistakenly construed as physical or external constraints because of the ambiguity of the term “external,” especially when Hobbes himself contrasted right or liberty with law: “Right consisteth in liberty to do, or to forbeare; whereas LAW determineth, and bindeth to one of them”; the implications of determinism and constraint in this language have led some modern interpreters to construe the Hobbesian conception of law exclusively in terms of coercive obligation, even though he spoke explicitly of laws in the state of nature and enumerated nineteen in all.60 That Hobbes located law defined as obligation based on coercion in civil society is accurate, of course; but it must be remembered that the just noted contrast he drew between right and law also obtained in the prior state of nature, where a form of law also existed. Hobbes did not intend, however, to posit the coercive obligation of positive law in the state of nature. This is clear from what he said about the complete absence in nature of anything by way of justice or injustice, right or wrong. And that he did not intend to construe “external impediments” to mean merely physical constraint should also be clear insofar as these are already found in the state of nature: to take a simple-minded but applicable example, even in the state of nature individuals lack the physical ability to fly. The Hobbesian distinction between law in the state of nature and law in political society reflected the traditional medieval ethical and legal distinction between internal and external fora, moral and legal 58 Along with Locke, Hobbes is frequently described as a seventeenth-century innovator as regards the theory of subjective natural rights, even though Tierney has shown conclusively that the true origins of natural rights ideology and language can be traced back to the twelfth-century canonists. See Brian Tierney, “Origins of Natural Rights Language: Texts and Contexts, 1150–1250,” History of Political Thought 10 (1989): 615–46; “Villey, Ockham and the Origin of Individual Rights,” in T. Witte and F.S. Alexander, eds., The Weightier Matters of Law: A Tribute to Harold J. Berman (Atlanta: Scholar Press, 1988), 1–31; and a number of recent articles. See supra, , note 136. 59 Hobbes, Leviathan, 1.14.2. 60 Ibid., 1.14.3. His list of the nineteen laws of nature are at Leviathan, 1.14.15. [Hobbes adds a 20th law in his Review and Conclusion at the end of Leviathan, par. 5, DB]

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obligation, natural and positive law: “The laws of nature oblige in foro interno; that is to say, they bind to a desire they should take place: but in foro externo; that is, to the putting them in act, not always.”61 Prefiguring the nineteenth-century legal positivist insistence found at least in nugatory form as early as the fourteenth century in Marsilius of Padua’s view that the essential feature of law is its coercive force,62 something based only in the authority of a temporal ruler, Hobbes located the “right” of nature exclusively in the state of nature, and he reserved the proper and strict meaning of law as exhibiting the essential feature of coercive command to political society even while having no compunction about also speaking of laws of nature that prescribed ethical obligations in the state of nature, and which he termed “immutable and eternal.”63 Legal obligation as such, then, does not exist in the state of nature; this is the arena of natural rights and moral obligation. The ringing Hobbesian rhetoric denying right and wrong, justice and injustice in the state of nature, accordingly, is to be interpreted in a similar fashion. The elements denied a place in the state of nature are legal, not moral; they belong properly to a legal system and are thus by definition, so to speak, found only in civil society. Yet Hobbes also insisted on there being laws in the state of nature, natural laws. Accordingly, a law of nature lacks the strict sense of obligation rooted in coercion even though, with more than a little evidence of linguistic inconsistency or confusion here, Hobbes referred to this feature of the state of nature as a “law.” The binding force of this type of law falls short of the strength of an obligation as such; it is in the order of morality rather than positive law. As Hobbes put it: “The science of them [the laws of nature] is the true and only moral philosophy. For moral philosophy is nothing else but the science of what is good, and evil, in the conversation, and society of mankind.”64 This does not mean, however, that no force exists behind the reality of a law of nature nor, correspondingly, that there are no limits to the application of the right of nature. For Hobbes a natural right is the very ground and legitimation of individual human activity in the state of nature. And, as Carmichael puts it: “The right of nature … constitutes a standard of sufficient moral reason, based in nature, for all questions of right and justification in civil society. As such it defines 61 Hobbes, Leviathan, 1.15.36. 62 Marsilius of Padua, The Defender of Peace, tr. Alan Gewirth (New York: Columbia University Press, 1956), 1.10.4. 63 Hobbes, Leviathan, 1.15.38. 64 Ibid., 1.15.40.

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the irreducible right of each individual.”65 Yet it also seems to impose duties on all individuals towards one another in the state of nature. In an effort to make at least linguistic sense of the Hobbesian position while at the same time running the risk of appearing to introduce a distinction without a difference, we might say that individuals in the state of nature have duties towards one another but not “obligations,” reserving the latter term properly only to the civil or legal forum, the civil polity itself. Accordingly, the self-indulgent Hobbesian rhetoric aside, his doctrine implies a twofold theoretical limit on individual behaviour in the state of nature: first, it is legitimate only as measured against the standard of self-preservation and, second, every individual is, morally, bound to afford such legitimacy to every other.66 One might say, then, that for Hobbes individuals in the state of nature have a moral duty but not an obligation to behave towards others so as to allow all individuals full rights to do anything that, in their judgment,

65 Carmichael, “Right of Nature in Leviathan,” 267. Such an interpretation, it must be acknowledged, is based on what might be called the internal logic of Hobbes’s statements about the laws of nature rather than on an acceptance of the literal meaning of his rhetorically expressed simple dichotomy between liberty and law. Taking the “literal–implications-from-the-actual-text” approach produces, among other things, the interpreted contrast between Hobbes and Locke regarding the presence or absence of real limitations on human behaviour in the state of nature. Cf. infra, 172-73. 66 The best thing that can be said to prevent the accusation of self-contradiction in the Hobbesian rhetoric here is that what the author of Leviathan means when he asserts that justice and injustice, right and wrong, are not to be found in the state of nature is that the moral imperatives present to all individuals in this state are simply ineffective motivators or deterrents in the natural conditions of war of all against all. This is because no individual in the state of nature, where all are against all, can assume or expect that others will accept the restraints inherent in the laws of nature. Tierney maintains that “Hobbes deviated from the preceding tradition … in excluding the idea of a moral rightness from his definition [of right of nature],” running contrary here to the views of Suárez and Grotius. See Tierney, “Origins,” 622. I read Hobbes somewhat differently, at least in terms of his doctrine of the “immutable and eternal” laws of nature, which function in the state of nature alongside natural rights. His rhetoric seems to force a complete dichotomy between right (liberty) and law (coercion), but the logic of his position, which describes the state of nature as including both right and law, precludes this oversimplified interpretation and indicates a fundamentum of moral constraint in the state of nature – duty rather than obligation in terms of the distinction just drawn.

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will further their self-preservation.67 Self-preservation is thus the limiting case for the exercise of any individual’s right of nature. Hence it is the case that, even for Hobbes as an archetypical example of advocacy for the absolute right of individuals in the state of nature, and the concomitant absolute authority of the ruler in civil society, the concept of limit appears in both orders. It appears in civil society in that individual citizens have the right to do whatever is in their power to escape a death penalty even when such punishment has been legally imposed.68 The natural condition of human existence is simply intolerable, however, in that everything is permitted to individuals in that they are all judges in their own cases. Accordingly, this becomes for Hobbes the strongest motivation for reasonable individuals to leave the state of nature by agreeing among themselves to contract out their natural rights to a civil sovereign. The Hobbesian state of nature is the antithesis of an idyllic condition for human existence; it is something to be forsaken for an alternative life in political society. And, as we shall see later in another example where rhetorical language often has been misconstrued, Rousseau’s dichotomy between the human in nature and in society expresses largely the same view: the pure original state of nature holds no attraction for humans when contrasted with the appropriate state of society. Another way of putting this is to assert that the Hobbesian right of nature does not seem to entail the modern natural rights theory position that a right affords an entitlement. Again the explanation is simple enough: a theory that construes rights in terms of entitlements to those possessing them is one that also construes such entitlements in terms of parallel obligations on others to honour such rights. The view that obligation and entitlement are coextensive with the very concept of law derives from the modern positivistic notion that defines law in terms of the coercive force of civil society. Outside civil society, then, there is neither obligation nor entitlement. Hobbes seems to have been moving towards such a doctrine, but the ambiguity of his language shows a failure to give it clear and coherent expression.69 67 Unfortunately, Hobbes did little to make his position here clear, especially when he regularly defined duty in terms of obligation in the very text in which he introduced the distinction between right and law. See Leviathan, 1.14, 119–29, passim. And he also spoke of the laws of nature as carrying an obligation: “from that law of nature, by which we are obliged [sic.] (Leviathan, 1.15, 130). 68 See infra. See Hobbes, Leviathan, 1.14, 119–20. 69 This may yet be too harsh an assessment of the Hobbesian position. Rather than expressing himself ambiguously or only semi-coherently, he may simply have had in mind the notion that to be the beneficiary of a duty is not necessarily the same as having a right – an element in modern rights theories already well understood by medieval canonists. See Tierney, “Origins,” 639–40.

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Yet at least in terms of logical consistency he also implied that duties (if not obligations and entitlements) exist in the state of nature. He recognized that the moral order precedes the civil or legal order at least conceptually. Moral values and duties are somehow necessary to get legal obligations started, just as natural rights are needed so that, under law, entitlements may derive from them. And it is not coincidental that one of Hobbes’s laws of nature, the third, is “that men perform their covenants made.”70 Again, a comparable position is advanced by even the strongest contemporary exponents of legal positivism when, while insisting without qualification on distinguishing between moral law and positive law, they also claim that there may be pieces of positive legislation sufficiently offensive when measured by moral criteria as to carry no obligation to obey them.71 Leaving aside the semantic issue of whether a law that, on moral grounds, carries no obligation to be obeyed meets the positivist definition of law tout court as a dictum that bears an “obligation” (insofar as this term is the true correlative of coercion), one can still accept that the legal positivist acknowledges a control function exercised by the order of the ethical as regards citizens’ obligations towards the laws of the political society of which they are members. Hobbes connected the original right of nature with the human condition of liberty, as his definition of the former makes clear, as well as with the attendant feature of individual judgment exercised for self-preservation: it is primary and has precedence over anything contracted away by the individual. This is why Hobbes retained for individuals in society a natural right to self-preservation in a rather awkwardly argued position that individuals cannot contract away their duty to preserve their own lives. Nor can they be expected in political society not to make their best efforts to escape from a legal sentence of death: individuals have a kind of property right in their own life, along with a corresponding obligation to preserve it. Even convicted criminals thus have a right to defend their lives as far as possible, even against state authorities who call for their execution.72 It might be 70 Hobbes, Leviathan, 1.15, 130 71 Cf. H.L.A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71, (1958): 593–629; cf. John Austin, The Province of Jurisprudence Determined (London: John Murray, 1832), Lecture 1. 72 Whensoever a man transferreth his right, or renounceth it; it is either in consideration of some right reciprocally transferred to himself; or for some other good he hopeth for thereby. For it is a voluntary act; and of the voluntary acts of man, the object is some good to himself. And therefore there be some rights, which no man can be understood by any words, or other signs, to have abandoned or transferred. As first a man cannot lay down the right of resisting them, that assault him by force, to take away his life; because he cannot be understood to aim thereby, at any good to himself … And therefore if a man … seem to despoil himself of the

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argued that Hobbes appears here as a small bore advocate of individual freedom even while espousing monarchical absolutism – a comment made about the Leviathan by a contemporary seventeenth-century critic, the Earl of Clarendon, who cautioned against a too-simple assessment of Hobbes as an absolutist.73 An ideological or conceptual catch, however, is that the traditional advocacy for human liberty rested on a conception of human nature as a composite of body and soul, something more than an organic material substance or Hobbesian “engine,” whose actions and behaviour are explicable totally in terms of the laws of mechanics. For Hobbes the rational impulse embodied in the right of nature prompts individuals, in deference to their own interest in self-preservation, to come together in a social compact under which they all agree to give up their rights of nature to a sovereign in return for the peace and tranquility that is the goal and purpose of civil society: The only way to erect such a common power … is, to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voice unto one will … this is more than consent, or concord; it is a real unity of them all, in one and the same person, made by covenant of every man with every man … This is the generation of that great Leviathan, or … Mortal God … he that carrieth this person is called Sovereign, and is said to have Sovereign Power; and everyone besides, his Subject.74

Hobbes here attempted to fuse a notion of sovereignty derived from Bodin and Grotius with a simplified version of the social contract theory found in the Spanish neo-scholastics, whose most sophisticated exponent had been Francisco Suárez.75 Along with Bodin and Grotius he used the

end [of self-preservation as a good to himself] he is not to be understood as if he meant it, or that it was his will. (Hobbes, Leviathan, 1.14, 119–20) 73 “The people need not be offended with him giving so extravagant a power to a person they never intended should have such empire over them. If they will have patience till he hath finished his scheme of sovereignty, he will enfeeble it again for them to that degree that no ambitious man would take it up, if he could have it for the asking.” Edward Hyde (Earl of Clarendon), A Brief Survey of the dangerous and pernicious Errors to Church and State, in Mr. Hobbes’s Book Entitled Leviathan (Oxford: Printed at the Theater, 1676), 43. And the staunch royalist Archbishop Bramhall even accused Hobbes of having written “a rebel’s catechism.” See John Bramhall, Castigations of Mr. Hobbes … with an Appendix concerning The Catching of Leviathan, or the great Whale (London: 1658), 515. 74 Hobbes, Leviathan, 2.17, 157–78. 75 See Monahan, From Duties towards Rights, 166–84.

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notion of sovereignty, which he defined as “an artificial soul giving life and motion to the whole [political] body[,]”76 as the touchstone of civil society localized in a single conceptual entity. Its fundamental function in his theory of polity was to preempt any argument that individual citizens or groups of citizens claiming to represent the people had the right to oppose their sovereign monarch.77 And for the same reason he collapsed the relatively sophisticated “two covenants” contract theory of the Spanish neo-Thomists into a single compact wherein individuals contracted among themselves to escape from the state of nature into political society. The Hobbesian sovereign, moreover, himself not a party to the contract and therefore in no way bound by its terms, became the embodiment of all the yielded rights of nature while ceding nothing of his own right: “because the right of bearing the person of them all, is given to him they make sovereign, by covenant only of one to another, and not of him to any of them; there can happen no breach of covenant on the part of the sovereign; and consequently none of his subjects, by any pretence of forfeiture, can be freed from his subjection.”78 It is probable that Hobbes rejected the earlier neo-scholastic two contracts position because to have retained the first of the two contracts, that according to which individuals in the state of nature agreed among themselves in the first instance simply to establish a polity, would have implied a basis for later popular residual resistance rights against the English monarchy already employed by the parliamentary opposition to Charles I (a notion counterproductive for the case Hobbes was trying to make). He consistently denied that the English Parliament was anything more than advisory to the monarch, who might take or leave such advice at his pleasure; and he categorically rejected any legal status to Parliament except when it was in session, sessions being called at the king’s pleasure.79 As already noted, Hobbes placed great emphasis on sovereignty as the hallmark of political society, picking up this notion from the earlier continental thought of Bodin and Grotius. He was thoroughly familiar with their views, even though customarily he gave no indication of these or other current sources for his own position. Following the conceptual 76 Hobbes, Leviathan, x. 77 Like both Bodin and Grotius, Hobbes took a strong stand against ceding a right of resistance. Cf. supra, 38, 74. 78 Hobbes, Leviathan, 2.17, 161. Moreover, because injustice for Hobbes involved breaking a covenant, and because there is no covenant between individuals and their sovereign but only between individuals themselves, the sovereign commits no injustice regardless of what he does. See Skinner, Passion and Rhetoric, 313. 79 Cf. Goldie, “Reception of Hobbes,” in Burns and Goldie, Cambridge History of Political Thought, 596.

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framework of these early modern political thinkers, who themselves simply repeated classical views that went back to Plato and Aristotle, Hobbes then identified a variety of acceptable political forms differentiated by the number of individuals constituting the essential feature of sovereignty: a single person, several, or the citizens as a whole – that is, monarchy, aristocracy, or democracy.80 There is no doubt, however, that Hobbes’s personal preference was the divine right-of-kings model of the early Stuart kings of England; the rhetorical style of Leviathan makes this clear in its regular references to the sovereign as an apparently single individual, and the text itself makes it explicit when Hobbes offers six reasons why monarchy is the best form of polity.81 Hobbes was equally clear when rejecting the medieval and later Protestant resistance theorists’ use of the formula describing a ruler as singulis maior sed universis minor.82 Moreover, as did Locke later, Hobbes forwent the extensive trouble taken by both Bodin and Grotius to reject the notion of mixed, or shared, sovereignty.83 He was anxious, as already noted, to locate sovereignty in a single conceptual locus.84 And also, as already mentioned, he refused categorically to accede sovereign authority to the English Parliament, seeing it as only an advisory body whose very existence depended on the pleasure of the monarch; and he was equally single-minded in denying any right of resistance to constituted authority to individual citizens or the collective body. The whole thrust of his position here was that, when individuals established the leviathan, they contracted away all their natural rights. His careful efforts to deny that the original social contract involved the sovereign show this: the original compact was among individuals in the state of nature, with the sovereign standing outside and simply agreeing to embody all the rights ceded to him.85 80 Hobbes, Leviathan, 2.19, 171–72. 81 Ibid., pp. 174–76. Cf. supra, note 43. 82 Hobbes, Leviathan, 2.18, 169. 83 See infra, 169. 84 Hobbes did, however, emphasize the unitary character of sovereignty while admitting a variety of forms in which sovereign unity could be expressed: “It is manifest, that men who are in absolute liberty, may, if they please, give authority to one man, to represent them every one; as well as give such authority to any assembly of men whatsoever; and consequently may subject themselves, if they think good, to a monarch, as absolutely, as to any other representative. Therefore, where there is already erected a sovereign power, there can be no other representative of the same people, but only to certain particular ends, by the sovereign limited. For that were to erect two sovereigns” (Hobbes, Leviathan, 2.19, 172; Cf. 2.19, 178–80).

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Hobbes’s motivation for this position was his almost pathological antipathy to civil war as being, in practice, a return to the original state of nature. Any diminution or elimination of the natural individual’s liberty stemming from contracting into civil society was more than compensated for by the guarantees of peace and tranquility provided by the exercise of sovereign political authority: A commonwealth is said to be instituted, when a multitude of men do agree, and covenant, every one, with every one, that to whatsoever man, or assembly of men, shall be given by the major part, the right to present the person of them all, that is to say, to be their representative; every one, as well he that voted for it, as he that voted against it, shall authorize all the actions and judgments of that man, or assembly of men, in the same manner, as if they were his own, to the end, to live peaceably amongst themselves, and be protected against other men. From this institution of a commonwealth are derived all the rights and faculties of him, or them, on whom sovereign power is conferred by the consent of the people assembled … they that have already instituted a commonwealth, being thereby bound by covenant, to own the actions, and judgments of one, cannot lawfully make a new covenant, amongst themselves, to be obedient to any other, in any thing whatsoever, without his permission. And therefore, they that are subjects to a monarch, cannot without his leave cast off monarchy, and return to the confusion of a disunited multitude; nor transfer their person from him that beareth it, to another man, or other assembly of men.86

Hobbes was more than prepared to respond to objections to his direct advocacy of what all his contemporaries would have recognized clearly as the form of monarchy embodied in the reign of Charles I. Accepting that such a polity had its defects and imperfections, he nonetheless urged that these were minor inconveniences when set against the horrors of civil strife, which were the inevitable result of challenging royal authority: But a man may here object, that the condition of subjects is very miserable; as being obnoxious to the lusts, and other irregular passions of him, or them that have so unlimited a power in their hands. And commonly they that live under a monarch, think it is the fault of monarchy; and they that live under the government of a democracy, or other sovereign assembly, attribute all the inconvenience to that form of commonwealth; whereas the power in all forms, if they be perfect enough to protect them, is the same: not considering that the state of man can never be without some incommodity or other; and that the greatest, 85 Hobbes, Leviathan, 2.17, 161. 86 Ibid., 2.18, 159–60.

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that in any form of government can possibly happen to the people in general, is scarce sensible, in respect of the miseries, and horrible calamities, that accompany a civil war.87

The Hobbesian political theory, then, is a rather straightforward justification for the English Stuart monarchy in which he had been raised, though couched in more general and greatly extended terms than would have been the case had its author chosen simply to engage in political polemics. The latter was not Hobbes’s style, however, given that he saw himself as a serious and original thinker. His contemporaries, on the other hand, saw him clearly for the advocate of absolute monarchy that he was, even though their major criticisms of his political thought were frequently directed at the more sweeping rhetorical statements in the Leviathan, such as his denial that right and wrong, justice and injustice, existed in the state of nature, and his relatively purple prose, equating these elements with the express commands of the sovereign. Another contemporary charge against Hobbes was that of atheism, by which was meant, for the most part, his unorthodox brand of Christianity rather than a straightforward denial of God’s existence. The charge of atheism seems spurious on its face, unless one is prepared to challenge Hobbes’s sincerity when he professed to be able to prove God’s existence.88 He did, however, affirm that his philosophical principles implied the conclusion that God is a body, certainly not an orthodox Christian position at the time, although he attempted to show that it had been held by early Christian theologians.89 Fellow supporters of the Stuart monarchy as well as those of a more constitutionalist turn of mind also criticized the single-minded sovereigntist voluntarism and legal positivism of Hobbes. William Falkner, in his defence of Charles II in Christian Loyalty, for example, wrote that:

87 Ibid., 2.18, 169–70. 88 Hobbes maintained in several texts, though not in Leviathan, that God’s existence can be demonstrated. See Elements of Law, 11.1–2; De cive, 2.21; 14.19; 15.14. His position in Leviathan, 11.26, was that human curiosity and inquiry incline to a belief in a first cause – God. Overall, his views on the demonstrability of God’s existence were ambiguous; but he seems to have accepted it as fact even while waffling on its demonstrability. Skinner also notes that, when Hobbes was ill in France in 1641, he made “a confession of religious faith to Dr. John Cozin, the future Bishop of Durham.” See Skinner, Reason and Rhetoric, 332; cf. 234. 89 Hobbes, Leviathan, Appendix, in Molesworth, ed., Opera latina, 3:561; cf. Hobbes, Leviathan, Curley, x-xiv.

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It is neither necessary, nor most suitable to supremacy of government, that the rules by which the governor proceedeth, should be altogether at his own will and pleasure … it is not abatement of the high sovereignty of the glorious God over the whole world that all His government and executing judgement, is ordered according to the natural and eternal rules and measures of goodness and justice, and not by any such arbitrary will, which excludeth all respect thereto.90

Archbishop Bramhall offered a similar criticism that also presumed to set the Hobbesian political point within a larger philosophical context: The will which affecting some particular good, doth engage and command the understanding to consult and deliberate what means are convenient for attaining that end … the greatest propugners of sovereign power think it enough for Princes to challenge [i.e., claim] an immunity from coercive power, but acknowledge that the law hath a directive power over them … [Hobbes was mistaken to think that] whatever they [sovereigns] do by power, they do justly.91

What might be said in the round as an assessment of Hobbesian political thought is that the natural attraction of the apparent intellectual rigour as well as the complexity of his texts have seduced a significant number of contemporary academics into ignoring, or at least glossing over, inherent difficulties and non sequiturs in his efforts to enshrine the Stuart monarchical absolutism within a coherent “scientific” frame of reference. mid-seventeenth-century radic alism in england The Diggers One of the most interesting and curious chapters in the history of seventeenth-century political thought has to do with the broadly based popular movements that had their origins in the political, social, and religious ferment boiling up during the conflict between the English Crown and Parliament that culminated in the Civil Wars of the 1640s. The initial political configuration of this conflict pitted Parliament against king in a contest over the theoretical and practical reality of limitation on monarchical power; but, as expressed in this relatively straightforward conflict between the forces contending for political 90 William Falkner, Christian Loyalty (London: Kettilby 1679), 10–11. 91 John Bramhall, A Defence of True Liberty from Antecedent and Intrinsical Necessity. Being an Answer to a Late Book of Mr. Thomas Hobbes of Malmesbury, intituled, A Treatise of Liberty and Necessity (London: 1655), 30–31, 82–83.

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hegemony, it involved interests, feelings, aspirations, and divisions that were religious, social, and economic and that went well beyond the merely political. The activities of the parliamentary forces, particularly as they moved towards a showdown with Charles I with their growing realization of the inevitable need for an army to defeat the king on the battlefield, produced a clarion call for the citizenry of England to defend their “ancient liberties”92 and commit themselves to the worthy but dangerous task of reclaiming their freedom from the hands of a royal tyrant by resort to arms. For many recruits to the Parliament’s New Model Army, who provided the military strength needed to defeat Charles, there were, as just noted, social, religious, and economic aspirations associated with the call to freedom and liberty: their committed opposition to the advertised tyranny of Charles i was fired by an equal commitment to a new form of polity that would guarantee freedom from injustice through new social, economic, and religious conditions. In their eyes political freedom came after the elimination of monarchical tyranny, while the new political dispensation, in turn, was seen to entail a mode of life free from subjection to the currently politically dominant (largely landowning) classes – a new dispensation that would provide the opportunity to proclaim and practise a form of Protestantism other than that sanctioned by the established Anglican Church. Many supporters of the parliamentary forces, indeed, the armed forces themselves in the round, were activated in large part by aspirations towards a new Christian community perceived in distinctly apocalyptic and millenarian terms. Not unnaturally, then, success by the parliamentary side, victory for the New Model Army, was to raise large-scale expectations for significant social and political change – expectations driven by religious values based in actual but previously largely unexpressed radical forms of early Christian communal ideology. Two related but distinguishable examples of this phenomenon require mention, admittedly perhaps more because their views led to real, concrete actions than because of their conceptual formulation. Given their origins, neither was particularly strong in coherent articulation, even though neither was by any means rationally incoherent. Both appearing 92 Claims concerning English citizens’ “ancient liberties” had been a continuing issue between the monarchy and the Commons since at least the beginning of the Stuart hegemony with James I. A very instructive summary on this issue, with adequate data for a more in-depth examination, is in Corinne C. Weston, “England: Ancient Constitution and Common Law,” in Burns and Goldie, Cambridge History of Political Thought, 374–411.

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in the late 1640s, they were known, respectively, as Levellers and Diggers, with proponents of the latter insisting, not unreasonably as we shall see, that they were the “true levellers.”93 Both failed signally to achieve any practical success in bringing about the reforms they advocated, and both passed quickly from the current scene. Yet both have come to be recognized as brilliant forerunners of many now commonplace notions in Western theories of representative and social democracy. Inextricably bound up with the upheavals in England at the time of the conflict between Charles I and Parliament, the Digger94 movement came to public attention in 1649 almost immediately after the second military defeat and subsequent execution of the British monarch. On 13 February 1649, within a month of Charles having lost his head, the Council of State of the English realm received information concerning the activities of “a disorderly and tumultuous sort of people”;95 and some two months later the Council of State, exercised about possible public disorder resulting from this group’s activities, instructed Lord Fairfax, Lord General of the armed forces of the new Commonwealth, to send: “some force of horse … to Cobham in Surrey and thereabouts, with orders to disperse the people so met, and to prevent the like for the 93 A Digger document issued in April 1649 to explain the action begun “to plant and manure the waste land upon George Hill” is titled The True Levellers Standard Advanced. See George H. Sabine, ed., The Works of Gerrard Winstanley (New York: Russell and Russell, 1941; rpt. 1965), 245–66. This volume contains a virtually complete collection of Winstanley’s writings, and I cite it wherever possible. An engaging, if somewhat overheated, account of the English radical political and religious movements in this period can be found in Christopher Hill, The World Turned Upside Down (New York: Viking Press, 1972), 86–120. 94 One might notice the array of colourful if prosaic designations given to the various radical religious and political groups that sprang up at the time: Diggers, Levellers, Quakers, ranters, seekers, shakers. 95 The Clarke Papers, ed. C.H. Firth, 2 vols. Camden Publications 49 and 54 (Cambridge: Cambridge University Press, 1891 [1894]), 2:209, cited in Lewis H. Berens, The Digger Movement in the Days of the Commonwealth as Revealed in the Writings of Gerrard Winstanley, the Digger, Mystic and Rationalist Communist and Social Reformer (London: Holland Press and Martin Press, 1961), 34. A stylistically antiquated presentation, this is still one of the best overall accounts of the Digger movement and its principal exponent, Gerrard Winstanley. It contains what Berens calls a “complete list” of Digger publications, all but three of them from the pen of Winstanley, at pp. 255–56. See also G.E. Aylmer, “The Religion of Gerrard Winstanley,” in J.F. MacGregor and B. Reay, eds. Radical Religion in the English Revolution (Oxford: Oxford University Press, 1984), 92–119.

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future, that a malignant and disaffected party may not under colour of such ridiculous people have any opportunity to rendezvous themselves in order to do a greater mischief.”96 A Captain John Gladman checked out affairs at Cobham and reported to his commander, Fairfax, several days later that: According to your order I marched towards St. George’s Hill and sent four men before to bring certain intelligence to me; as they went they met with Mr. Winstanlie and Mr. Everard [both of whom] have engaged to be with you this day: I believe you will be glad to be rid of them again, especially Mr. Everard, who is no other than a mad man … I intend to persuade these people to leave this employment … indeed the business is not worth the writing nor yet taking notice of: I wonder the Council of State should be so abused with informations.97

“This employment,” of which Gladman spoke, was an effort by probably no more than two or three dozen men and their families to occupy and bring under cultivation a portion of common lands in the area of St. George’s Hill near Kingston, just outside London on the edge of Windsor Great Forest. Gladman may have been correct in adjudging Everard mentally unbalanced, although this assessment likely had to do with the peculiarities of Everard’s political views and his deliberate failure to observe conventional standards of behaviour as between ordinary citizens and their presumed social betters. As a Digger, Everard held (as did Winstanley, although perhaps not to Gladman’s personal observation) that he himself was a descendant of the Israelites, that the ruination of the ancient liberties of the English could be traced to the Norman conquest,98 and that God intended barren land 96 “The Council of State to Lord Halifax, April 16, 1649,” quoted in Berens, Digger Movement, 35–36. Led by Winstanley and Everard, the Diggers had begun the occupation of St. George’s Hill on Sunday, 1 April 1649. 97 “John Gladman to Lord Fairfax,” Clarke Papers, 2:211–12. 98 The question of how precisely the Norman conquest had affected the liberties of the English, specifically whether William the Conqueror had somehow accepted, or agreed to continue, the Saxon-based claims for “rights and liberties” was much disputed among scholars, legal historians, and self-proclaimed advocates of both royal and parliamentary claims in the period leading up to the English civil war. Certainly, a standard claim among opponents of Charles I was that the Norman conquest had led to the suppression of earlier “freedom.” Cf. Weston, “England’s Ancient Constitution”; and Hill, World Turned Upside Down, passim. Cf. supra, note 92.

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to be made fruitful and its produce distributed to the poor and needy. Moreover, he acknowledged no gradation in social rank, expressing this attitude by an unwillingness to remove his hat in the presence of an authority figure, a practice that came shortly to be recognized as Quaker behaviour. Everard’s signature was the first on the Digger pamphlet, The True Levellers Standard Advanced: or, the State of Community opened and presented to the Sons of Men (26 April 1649), but his name does not appear subsequently in connection with any other Digger activity or document. Gerrard Winstanley was the principal standard bearer for the Digger cause in such further public notice as the movement received as well as being, along with Everard, an original proponent. Born in Wigan, Lancashire, on 10 October 1609, Winstanley appears to have had a good Anglican middle-class education, although little or nothing is known of his early years. He went off to London as an apprentice in 1630 and became a freeman of the Merchant Taylors Company in 1637. He tells of himself that, by 1643, “by thy cheating sons in the theeving art of buying and selling, and by the burdens of and for the Souldiery in the beginning of the war, I was beaten out of both estate and trade and forced to accept of the good-will of friends crediting of me, to live a Countrey-life, and there likewise by the burthen of Taxes and much free-quarter, my weak back found the burthen heavier then I could bear.”99 A failure in the world of business and trade, he became an agricultural labourer in Surrey and apparently sought solace in the study of religion, which activity led to the publication of a spate of theological and mystical treatises and pamphlets in 1648 and 1649, and a series of political tracts in the following years. The last and most extensive in the latter category, The Law of Freedom in a Platform: Or True Magistracie Restored, was addressed to Oliver Cromwell, de facto ruler of the recently established English commonwealth (February 1652). A kind of forlorn post factum appeal to the Protector in vindication of the Digger actions at St. George’s Hill by people already removed by force, it offers the best contemporary account of Digger political thought. Winstanley did not much longer pursue the Digger philosophy, however, and seems never to have advanced the Digger position by any other means than moral suasion expressed to the political authorities in his published statements. The movement itself collapsed in 1650 when its several communities were forcibly broken up. 99 Gerrard Winstanley, “A Watchword to the City of London: August 1649,” in Sabine, Works of Winstanley, 315.

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Winstanley served as an Anglican churchwarden in Cobham after the Restoration but may have died as a Quaker corn dealer.100 Many of his writings were similar both in purpose and content to the Law of Freedom addressed to Cromwell. They were prepared and presented in a direct effort to explain and justify the Digger movement to a variety of public authorities and bodies, none of which apparently paid any heed to Winstanley’s importunings. An early writing already mentioned, The True Levellers Standard Advanced, made the broadest and most abstract claim for an audience. Describing itself as “a declaration to the powers of England, and to all the powers of the world,”101 it was published on 26 April 1649, some three weeks after the Diggers began tilling the commons around St. George’s Hill and about a month after the appearance of the first Digger manifesto. A Declaration from the Poor Oppressed People of England. A Letter to Lord Fairfax and His Council of War (June 1649) followed on Fairfax’s appearance at the Digger site in Surrey; and Winstanley’s failure to obtain satisfaction from Fairfax led to An Appeal to the House of Commons, which appeared in July 1649. An even broader if more informally directed statement, A Watchword to the City of London and the Army came out the following month and was followed in turn by A New Year’s Gift for the Parliament and Army, published in January 1650. There is no need to review the contents of Winstanley’s religious writings; but it is significant that they present the background against which his political thinking was set and emphasize a general notion crucial to it, which is that an era of Christian righteousness was coming to earthly fruition and would be expressed in the Second Coming: “The windows of heaven are opening, and the light of the Son of Righteousness sends forth of himself delightful beams … O rejoyce, rejoyce, for the time that the Lord God omnipotent wil raign in al the earth is beginning.”102 This was not an uncommon expectation in the England of Winstanley’s day, 100 Burns and Goldie, Cambridge History of Political Thought, 700. Sabine vigorously rejected the notion that Winstanley might have become a Quaker in later life, tracing this speculation to a dating error concerning one of Winstanley’s tracts, The Saints Paradise. See Sabine, Works of Winstanley, 11. Berens shows close similarities between Winstanley’s early theological pamphlets, which appeared in 1648–49, and Quaker doctrines. The origins of the Society of Friends (Quakers) is sometimes traced to the same period. See Berens, Digger Movement, 52–67. 101 Gerard Winstanley, “The True Levellers Standard Advanced,” in Sabine, Works of Winstanley, 251. 102 Gerard Winstanley, “The New Law of Righteousness,” in Sabine, Works of Winstanley, 207–08. The entire text is at 149–244.

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of course. Indeed, Cromwell himself was wont to engage in this kind of self-justifying rationalization for the overthrow of the English monarchy and the established Anglican Church: “God hath in several ages used several dispensations, and yet some dispensations more eminently in one age than in another. I am one of those whose heart God hath drawn out to wait for some extraordinary dispensations, according to those promises He hath set forth of things to be accomplished in the latter time, and I cannot but think that God is beginning of them.”103 Winstanley’s perception of the impending new stage of righteousness differed greatly from that of Cromwell, however. Focusing his personal theological views around the fundamental Protestant claim for private religious judgment, he vigorously rejected the union of church and state, and descried any emphasis on ecclesiastical authority, particularly in its implementation by civil government. Winstanley’s second religious pamphlet – a first one, The Mystery of God concerning the Whole Creation, Mankind, had appeared a month earlier in April 1648 – was an almost unreadable effusion of some 127 closely printed pages entitled The Breaking of the Day of God (20 May 1648). It attempted to prove that the coming reign of righteousness was fully consistent with the Christian scriptures, especially the Gospel of St. John and the Book of Revelation, and vehemently protested the continuing union of church and state expressed in the practice of civil authority persecuting dissenters from the established religion: The misery of the age [derives from efforts] to uphold the usurped Ecclesiastical Power, which God never made … [humans are] so mad and ignorant [as] to count Magistracie no government unless the Beast reign cheek by chaw with it, as formerly in the days of ignorance. But this Ecclesiastical power in and over the Saints must fall … by this Ecclesiastical power, established by deceived Magistracie, the sincere in heart that worship God in spirit and truth, according as God hath taught them and they understand, these are and have been troubled in Sessions, in Courts, and punished by fine and prisons. But the loose-hearted that will be of any religion that the most is of, these have their liberty without restraint. And so Magistracie hath acted quite backward, in punishing them that do well, and protecting in a hypocritical liberty them that do evil.104

Winstanley’s rather simple-minded advocacy of what we today would call full religious toleration was accompanied by other more specific 103 Clarke Papers, 1:379, cited in Berens, Digger Movement, 53. 104 Gerrard Winstanley, The Breaking of the Day of God, British Museum ms 4377, a,2. Sabine offers an abstract of this text. See Sabine, Works of Winstanley, 87–90.

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concerns having to do with the issue of property and giving direct expression to social rather than purely political concerns, issues not again explicitly spelled out in a political treatise until Rousseau addressed them a century later. Asserting that, in the beginning (in the Garden of Eden), humans were created perfect, Winstanley repeated the traditional Christian doctrine that, originally, all the world’s goods were held in common. He then proceeded to excoriate contemporary social conditions, with which he must have been personally familiar as a rural labourer, calling them the result of humans having fallen victim to the promptings of self-love, greed, and pleasures of the flesh. These evils represented the beginning of particular interest, buying and selling the Earth from one particular hand to another, saying “This is mine,” upholding this particular propriety by a law of government of his [humankind’s] own making, and thereby restraining other fellow-creatures from seeking nourishment from the mother earth … so that he that had no Land was to work for those for small wages, that called the Land theirs; and thereby some are lifted up in the chair of tyranny, and others trod under the foot-stool of misery, as if the Earth were made for a few, and not for all men.105

Winstanley makes it clear that, for him, the particular bane of contemporary society and the touchstone for his diatribe against personal wealth and property as the cause of poverty and human misery was land enclosure: [M]an following his own sensuality became a devourer of the creatures and an incloser, not content that another should enjoy the same priviledge as himself, but encloseth all from his Brother; so that all the Land, Trees, Beasts, Fish, Fowle, &c. are inclosed into a few mercinary hands; and all the rest deprived and made their slaves, so that if they cut a Tree for fire, they are to be punished, or hunt a fowle it is imprisonment, because it is gentlemens game, as they say; 105 Winstanley, “New Law of Righteousness,” Sabine, Works of Winstanley, 158–59. One might note here how Winstanley turns the conventional contractual character of property rights into something negative and immoral, the opposite attitude to that taken by Suárez and Locke, who used the element of mutual consent to validate relationships between individuals. Winstanley provided an extensive statement on the social and economic inequities of his day, terming “buying and selling [to be] the law of the Conqueror” in the prefatory letter to the Law of Freedom, addressed to Oliver Cromwell. See Sabine, Works of Winstanley, 511.

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neither must they keep Cattle, or set up a House, all ground being inclosed, without hyring leave for the one, or buying room for the other, of the chiefe incloser, called the Lord of the Mannor, or some other wretch as cruell as he … Now all this Slavery of the one and Tyranny of the other was at first by murther and cruelty one against the other; and that they might strengthen themselves in their villany against God’s ordinances and the Brother’s freedom and rights: They had always a Commander in Chiefe … and he became their King.106

While obviously less than realistic in its simple advocacy of social and economic equality, Winstanley’s position is not, for all that, unclear. He called for the total elimination of social and economic inequalities as these were seen to rest in the ownership of property, principally land: [T]he man of the flesh judges it a righteous thing that some men who are cloathed with the objects of the Earth, and so called rich men, whether it be got by right or wrong, should be Magistrates to rule over the poor; and that the poor should be servants, nay, rather slaves, to the rich. But the spiritual man, which is Christ, doth judge according to the light of equity and reason, that al man-kinde ought to have a quiet subsistence and freedome to live upon the earth; and that there shal be no bond-man nor begger in all his holy mountaine. Mankinde was made to live in the freedom of the spirit, not under the bondage of the flesh … for every one was made to be a Lord over the Creation of the Earth, Cattle, Fish, Fowl, Grass, Trees, not any one to be bond-slave and a beggar under the Creation of his own kinde … it is to be done by the universal spreading of the divine power, which is Christ in mankind, making them all to act in one spirit, and in and after one law of reason and equity.107

According to Winstanley, under the principle of righteousness to be established through universal acceptance of the power of Christ, the King of Righteousness himself shall be Governor in every man; none of them shall work for hire, neither shal any give hire, but every one shal work in love: one with, and for another; and eat bread together, as being members of one household; the Creation in whom Reason rules king in perfect glory … no man shal have any more land, then he can labour himself, or have others to

106 Gerrard Winstanley, “Light Shining in Buckinghamshire,” in Sabine, Works of Winstanley, 612. The full text is at pp. 611–23. 107 Winstanley, “New Law of Righteousness,” in Sabine, Works of Winstanley, 179–81.

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labour with him in love, working together, and eating bread together, as one of the Tribes of Israel, neither giving hire, nor taking hire.108

The basic impracticality of Winstanley’s views notwithstanding, he was a man of action as well as of words; and it was his efforts at implementing his communist vision that brought him and his followers in conflict with the civil authorities. He chose to give practical expression to the coming days of “righteousness,” as already noted, by leading a small group in occupying and beginning to till the common land at St. George’s Hill in Surrey, some seven miles from the little town of Colnbrook in Buckinghamshire to which Winstanley apparently had withdrawn when he left London. And, as also already noted, it was the activities of this “disorderly and tumultuous sort of people” that brought out Captain Gladman and his company of horse,109 activities engaged in by Winstanley in response to what he considered a divine call: I have now obeyed the command of the Spirit that bid me declare all this abroad, I have declared it, and I wil declare it by word of mouth, I have now declared it with my pen. And when the Lord doth shew unto me the place and manner, how he wil have us that are called common people, to manure and work upon the common Lands, I will then go forth and declare it in my action, to eat my bread by the sweat of my brows, without either giving or taking hire, looking upon the Land as freely mine as anothers, I have now peace in the Spirit, and I have an inward perswasion that the spirit of the poor shall be drawn forth ere long to act materially this Law of Righteousnesse.110

While clearly illegal, there was nothing particularly revolutionary in Winstanley’s proposal to take possession of and work common land, “the commons, mountains and hills.”111 He made clear that he did not intend to dispossess any private landowners of their property, but only to organize the poor and landless to occupy and till land that belonged to all in common. Nor was his categorical rejection of the monarchy likely to get him into trouble with the English authorities in the postmonarchical Cromwellian commonwealth. What was revolutionary in his position, however, was his apparent linking of any existing political authority with support and justification for the evils of private ownership 108 Ibid., 190–91. 109 Supra, 143-44. 110 Winstanley, “New Law of Righteousness,” in Sabine, Works of Winstanley, 194–95. 111 Ibid., 196.

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and his insistence that no one should be the servant or slave of another, his total rejection of all labouring and social classes. Those who found themselves in the position of servant or slave were to cease being persons “[who] work for others that lives at ease, and follows the waies of the flesh by your labours, eating the bread which you [sic, ed.] get by the sweat of your brows, not of their own … the hand of the Lord shall break out upon every such hireling labourer, and you shal perish with the covetous rich men that hath held, and yet doth hold the Creation under the bondage of the curse.”112 All humans should perform their own labour in freedom, equality, and Christian love: “[L]et the world see who labours the Earth in righteousnesse, and those to whom the Lord gives the blessing, let them be the people that shall inherit the earth. Whether they that hold a civil property, saying, This is mine, which is selfish, devilish, and destructive to the Creation, or those that hold a common right, saying, The Earth is ours, which lifts up the Creation from bondage.”113 Though there is some ambiguity in it, Winstanley’s position seems to have been a kind of indirect or incomplete communism, at least for the transitional period between the present “devilish” era of the flesh and the millennial reign of reason, wherein all would be free and equal. As the above text shows, he did not deny out of hand the legality of private ownership: he distinguished between two ways of exercising dominion over material things, one which was morally acceptable while the other was “devilish.” Those lacking property of their own should occupy and till the common land, while those who were landowners should look to the cultivation of their property only through their own personal efforts. Furthermore, the dispossessed of this world should not work for any property owner: let these latter look to themselves as the only source of labour for their holdings. The basis for Winstanley’s theory of common rights to property was the simple notion, repeated later in Locke’s deliberately naive account of how individuals come to acquire property rights, that such rights, for those who choose to exercise them, rested on and were accrued through an individual’s own labour.114 Unlike Locke, however, he held fast to the stricture that no one should possess more than they could “till” by themselves, not invoking anything like Locke’s appeal to an agreed upon artificial means of exchange to justify acquisition beyond minimal needs and personal exertion. And, not surprisingly, he was satisfied that the limitation to owning only what individuals could come to 112 Ibid., 194. 113 Ibid., 196. 114 For Locke, see infra, 174.

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possess by their own labour would guarantee a plentiful common surplus for others who would have no interest in property acquisition as such, but who would follow the original and perfect form of exploiting the world’s resources through common labour on common lands. “Divide England into three parts, scarce one part is manured. So that here is land enough to maintain all her children, yet many die of want, or live under a heavy burden of poverty all their days. And this misery the poor people have brought upon themselves by lifting up particular interest by their labors.”115 As Winstanley saw it, three steps were necessary to return the current socially inequitable situation to the original condition of righteousness: There are yet three doors of hope for England to escape destroying plagues. First, Let everyone leave off running after others for knowledge and comfort, and wait upon the spirit Reason … cast off the shadow of Learning, to reject covetous, subtile, proud flesh that deceives all by their hearsay, and traditional preaching of words, letters, and sillables, without the spirit; And to make the choyce of the Lord … Secondly, Let everyone open his bags and barns, that al may feed upon the crops of the earth, that the burden of povertie may be removed. Leave off buying and selling of Land, or of the fruits of the earth; and as it was in the light of Reason first made, so let it be in action, amongst all a Common Treasurie, none inclosing or hedging in any part of the earth, saying, This is mine; which is rebellion and high treason against the King of Righteousnesse … Thirdly, Leave off dominion and Lordship one over another … Let those that have hitherto had no Land, and have been forced to rob and steal through povertie; hereafter let them quietly enjoy Land to work upon, that every one may enjoy the benefit of his Creation, and eat his own bread with the sweat of his own brows.116

One might note an apparent inconsistency between Winstanley’s earlier acceptance of private property as such and his seeming insistence here on the total elimination of property and the holding of all things in common. What we have in this latter text, however, is a kind of utopian formulation set in a somewhat rhetorical declamation against the evils of poverty seen as the inevitable consequences of human acquisitiveness. His earlier, more general, acceptance of property rights and inequality in proprietorship, it must be acknowledged, however, does not square practically with his limitation of these rights here and elsewhere 115 Winstanley, “New Law of Righteousness,” in Sabine, Works of Winstanley, 200. 116 Ibid., 200–01.

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to what could be acquired only by an individual’s own labour. Nor is it clear how, on any ground other than moral exhortation, that he would prevent individuals offering themselves for hire in return for material goods. A rhetorical miasma involving the Christian conceptions of love and righteousness often surrounds Winstanley’s position. In his most comprehensive statements in the Law of Freedom … or True Magistracie Restored Winstanley was much more detailed about how to make the transition to the new condition of righteousness and about the compatibility of some forms of social structure with his original views on the communal nature of society and ownership. The Law of Freedom makes clear that he was not necessarily opposed to structures and classifications within a society as long as they were approved and supported by the citizenry as a whole. What Winstanley opposed in all forms was a monarchical government that provided for property ownership and the exploitation and dispossession of the poor. Monarchy for him was the ultimate form of a society based on property ownership, from which all the evils of poverty, social exploitation, and economic slavery sprang; and his apparently simple panacea for all these evils was to eliminate monarchy, to prevent property owners from exploiting more property than they could work by their own labour, and to encourage the poor to take possession of the common lands of England. His purpose, set down at the beginning of the Law of Freedom, was “to finde out where true Freedom lies, that the Commonwealth of England might be established in Peace … True Freedom lies where a man receives his nourishment and preservation, and that is in the use of the Earth.”117 In typically oversimplified fashion Winstanley identified two forms of government, kingly and commonwealth, categorizing them in a series of dichotomies: evil and virtuous, tyrannical and free, propertybased and communistic: Kingly Government governs the Earth by that cheating Art of buying & selling … the great Law-giver [here] is Covetousness … [its] rise is by a politick wit, in drawing the people out of Common Freedom into a way of Common Bondage … Commonwealth’s Government governs the Earth without buying and selling; and thereby becomes a man of peace, and the Restorer of Ancient Peace and Freedom: he makes provision for the oppressed, the weak and the simple, as well as for the rich, the wise and the strong … All slaveries and Oppressions … are cast out again by this Government.118 117 Gerrard Winstanley, “The Law of Freedom in a Platform: or True Magistracie Restored,” in Sabine, Works of Winstanley, 519. The entire document is at 501–600. 118 Winstanley, “Law of Freedom,” 2, in Sabine, Works of Winstanley, 529–33.

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The governing principle for all is the golden rule to do unto others what one would have them do unto you;119 and the key element of freedom in the commonwealth form of government is expressed through its officers and magistrates, all of whom are to be elected: “a true Commonwealth’s Officer is to be a chosen one, by them who are in necessity and who judg him fit for that work.”120 Moreover, the “people” are to choose their officials on an annual basis;121 and those selected, if poor, are to be paid “until such time as a Commonwealth’s Freedom is established, for then there will be no need of such allowances.”122 Winstanley clearly anticipated that his new Jerusalem would not come about at one fell swoop; a transitional phase would be needed to move from the moral turpitude of the monarchical, property-owning form of polity to the righteousness of the rule of reason in a commonwealth. Winstanley was also specific about who and how individuals were to be elected to public office, his views being somewhat less than supportive of either universal eligibility or suffrage. Asking “Who are fit to choose, and fit to be chosen officers in a commonwealth,” he provided a relatively lengthy list of exclusions while being silent about any procedure for implementing it: all uncivil livers, as drunkards, quarrellers, fearful ignorant men, who dare not speak the truth lest they anger other men; likewise all who are wholly given to pleasure and sports, or men who are full of talk … all those who are interested in the Monarchical Power and Government [these “ought neither to choose nor to be chosen Officers”] … all those who been so hasty to buy and sell the Commonwealth’s Land [also are not eligible to choose or be chosen].123

The Winstanleyan commonwealth also came equipped with a parliament, an army, a set of laws, and a full panoply of officials and regulators to ensure that its values were formulated and maintained. The Levellers [T]the sectaries design and practise [is] not to be only corrupting religion … but to be against magistracy and civil government … Opposing settled governments and 119 Winstanley, “Light Shining in Buckinghamshire,” in Sabine, Works of Winstanley, 611, 615; Winstanley, “Law of Freedom,” ibid., 509. 120 Winstanley, “Law of Freedom,” in Sabine, Works of Winstanley, 538. 121 Ibid., 540. 122 Ibid., 544. 123 Ibid., in Sabine, Works of Winstanley, 542–43.

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bringing an anarchy and confusion into church and state … they have in terminis in divers pamphlets and some sermons, declared against monarchy and aristocracy, and for democracy: they have expressed themselves in such a manner concerning that that they make it no other than an anarchy, making all alike, confounding of all ranks and orders, reducing all to Adam’s time and condition and devolving all powers upon the state universal and promiscuous multitude, whom they make the creator and destroyer of kings, parliaments and all magistrates at their mere pleasure, without tying them to any rule, or bounding them by any laws.124

Contemporaneous with the Digger movement and frequently associated as well as confused with it was a larger and more broadly based group of social and political radicals, to which the name “levellers” was given by critics like Thomas Edwards, quoted above from his Gangraena (1646) shortly after the Levellers began to issue public statements.125 Like the Diggers they aspired to the restoration of what they perceived to be the liberty-loving conditions of Anglo-Saxon England prior to the Norman conquest; and also like the Diggers they had a principal spokesperson, John Lilburne, whose intellectual and political acumen, as well as strength of character, were quite remarkable. Unlike their more radical but less popular contemporaries, however, the Levellers enjoyed a much broader base of support and exercised, for at least a short while, a pivotal place in the highly unstable political and social conditions of the Civil War period, especially after the parliamentary forces had become successful in their first military confrontation with Charles i. As well, Lilburne was not the only identifiable Leveller leader. Others, like Richard Overton and William Walwyn, were also capable of expressing and pressing the aims of their group. Moreover, Lilburne was associated in the early years of his radical religious activities in London with other similarly minded pamphleteers inveighing against the episcopate and the notion of an established religion: the lawyer William Prynne, the medical doctor John Bastwick, and the Anglican divine of Puritan 124 Thomas Edwards, Gangraena (London: Smith, 1646; facsimile reprint, Exeter: University of Exeter, 1977), Preface, pt. III. 125 A useful collection of excerpts from many of the most important Leveller pamphlets and writings is G.E. Aylmer, ed., The Levellers in the English Revolution (London: Thames and Hudson, 1975); cf. D.M. Wolfe, Leveller Manifestoes of the Puritan Revolution (New York: Nelson, 1944; rpt. New York: Humanities Press, 1967). See also David Wootton, “Leveller Democracy and the Puritan Revolution,” in Burns and Goldie, Cambridge History of Political Thought, 412–42; F.D. Dow, Radicalism in the English Revolution 1450–1700 (Oxford: Blackwell, 1985); G.E. Aylmer, “Gentlemen Levellers?” Past and Present 49 (1970): 120–25.

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conviction Henry Burton, who later became a Congregationalist.126 One of Lilburne’s continuing problems as leader of any political movement, however, was that he spent so much time in jail. His first incarceration was at the hands of the Star Chamber in 1638 when, at the age of twenty-two or twenty-three, he was flogged through the streets of London before being pilloried at Westminster and jailed for his part in distributing seditious anti-episcopal literature. He seems to have continued his “seditious” behaviour in the next several years, even while in prison, writing a number of clandestine pamphlets, two of which were addressed to the apprentices of London and appeared in 1639.127 The practical expression and strength of the Leveller movement came mainly from the ranks of the parliamentary army of the late 1640s, although the movement was also strong among ordinary citizens in the overcrowded London of the day, where Lilburne’s activities were mainly focused. Its leaders, including Lilburne, were drawn from the lower ranges of the social and educated classes, persons from the lower gentry close enough to the contemporary poor and to small businessmen to be able to sympathize with and articulate the needs and aspirations of these severely disadvantaged groups. England in the 1640s was experiencing considerable economic, social, and political upheaval – three elements that, of course, are all closely interwoven – and the success of the parliamentary movement against the monarchy led to enormous expectations, often at cross purposes and contradictory of one or another. The existing political situation, then, was more than dynamic; it was potentially highly explosive. The Leveller movement can be traced, in its specific origins and practical expression, to the events and circumstances of the period 1644–46, when the needs of the Long Parliament in its struggle with Charles I led it to take certain radical measures that went well beyond its earlier reform program. The parliamentary Self-Denying Ordinance that excluded peers and MPs from civil and military office, establishing the New Model Army based on enforced military service as well as the traditional forms of recruitment; new forms of taxation on property and special classes as well as new levies on various commodities; and the setting up of an elaborate network of committees, many of whose members would have had little or no governing experience – all these innovations and ad hoc responses to developing problems produced a significant increase in the radicalization of English political life, especially as it involved individuals from the landed gentry class. 126 Aylmer, Levellers, 14–15. 127 Ibid.

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As we shall see, however, the Leveller movement was doomed to practical failure from the beginning, inasmuch as its supporters were drawn largely from two groups whose interests were uncoordinated when not simply in opposition to one another, even when individuals found themselves members of both groups: (1) the radical religious sects, which sought toleration from both the established Anglican Church and the threatened alternative of Presbyterianism, and (2) the rank and file of the New Model Army, who sought redress for their financial and political grievances. The Leveller leadership, moreover, was never able (and perhaps never intended) to formulate a coherent plan of action that might succeed against the public authority’s willingness to use force to suppress them. The Levellers would have needed an ability as well as a willingness to employ sustained military force against the government if they were to have had any chance of implementing their reform agenda. There seems, however, never to have been any realization of this practical reality among the Leveller leadership, nor any persisting disposition on their part to do anything more than advocate their views before the existing authorities. No reference was made in Leveller documents to the legitimacy of armed resistance to illegitimate political authority. However, there were two instances where Levellers actually did resort to armed insurrection: (1) the Leveller-inspired mutiny by two regiments at Ware in November 1647 and (2) an uprising by army units at Burford in May of the following year. Both, however, were ill-organized and easily snuffed out by prompt and resolute government action. The first formal expression of Leveller thought was a petition, the so-called “large” Petition, presented “to the Right Honourable and Supreme Authority of the Nation, the Commons in Parliament Assembled” in March/April 1647 at a time of deepening rift between Parliament and army. When Parliament rejected this petition the radicals directed their attention to the army itself, through “An Appeale from the Degenerate Representative Body … to … The free People … of England” (July 1647), written by Richard Overton and presented “to Sir Thomas Fairfax and to the Officers and Souldiers under his Command.” A third Leveller declaration, the first Agreement of the People, was composed a short while later in October and published on 3 November 1647. This document has been described as “the first proposal in history for a written constitution based on inalienable rights.”128 It embodied three essential principles: the elimination of any property qualification for exercising the electoral franchise, the

128 Wootton, “Leveller Democracy,” 412.

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location of supreme political authority in an elected representative body, and the limitation of political sovereignty by natural justice. Inasmuch as Leveller political thought was formulated for the most part by its principal already-mentioned three spokespersons, at least something should be known about these remarkable men whose ideas were truly revolutionary on the English scene. A number of these ideas had never been given political expression in England before and would not be implemented for more than three centuries. As already indicated, John Lilburne was a well-known and popular hero before the actual appearance of the Levellers in the late 1640s. Born in 1615 the second son of a Durham gentleman, he went up to London as an apprentice in the 1630s and soon became involved in radical activities for which, as also noted earlier, he was imprisoned. On his release he took part in the May 1641 demonstrations demanding Stratford’s execution; and when civil war broke out the following year he took service under Lord Brook as a captain, later a lieutenant-colonel, in the parliamentary army. Subsequently, he was the only officer to resign rather than take the Covenant oath. He became associated with Overton and Walwyn in 1643, the year during which he again collided with authority and again went to prison: between that year and 1652 he was imprisoned seven more times by various bodies – House of Commons, House of Lords, and Council of State. Acquitted of treason twice (1649 and 1652), he was not released after the second acquittal and died in prison in 1657 as a Quaker. Lilburne composed some eighty political pamphlets during the course of this lively and litigious life. The details of Richard Overton’s early life are obscure: he probably was an undergraduate at Cambridge and later an actor. He composed a large number of religious and political tracts opposing Catholicism and the monarchy between 1640 and 1642, before turning his pen against Presbyterianism in 1645–46. He took up the Leveller cause in a series of some forty pamphlets he either authored or co-authored between 1645 and 1649, these activities earning him prison terms in 1646 and 1649. He went into exile briefly in 1653 because of his involvement in antiCromwell plots; and he served a final prison term for defending the Good Old Cause in 1659, dying in custody in 1664. William Walwyn was born into a family of gentry in 1600 and, like Lilburne, apprenticed in London where he joined the Merchants’ Adventurers’ Company. He began to express views on religious and political toleration in a series of pamphlets that appeared in 1641. He became associated with Lilburne and Overton in the Leveller movement in 1645 and did brief prison time with them in 1649. Walwyn practised medicine in later life and died in 1680.

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As suggested earlier, much of the Leveller movement’s strength was centred in the parliamentary army, specifically though not exclusively in the rank and file, many of whom fought on the Roundhead side precisely because they had been encouraged to think that success against the king would yield a new political and social dispensation, a new form of polity described by a surprising number of their army chaplains as akin to, if not actually constituting, the second coming of Christ as foretold in the Book of Revelation. And as also already suggested, a second major component among the Levellers were persons belonging to various radical Protestant sects, whose opposition to the Stuart monarchy of Charles i was rooted in a wish to escape established Anglicanism. Many of these, of course, were members of the New Model Army who saw the king’s defeat as an opportunity to practise freely a new form of Protestantism different from both Anglicanism and Presbyterianism. The first formal expression, the already-mentioned “first” Petition addressed to Parliament in early 1647, asked the Commons to stand firm against the monarchy and House of Lords. Among the many grievances it listed for redress were: monopolies, arbitrary arrest and imprisonment, an unreformed legal system, the compulsory maintenance of a coercive state church, indefinite imprisonment for debt, and prison conditions in general. And Parliament’s attention was drawn as well to the need to alleviate the general problem of poverty.129 Internal evidence indicates that Walwyn was its probable author,130 but a comparison with Lilburne’s first known personal publication, England’s Birth-Right Justified, published in October 1645, shows a similarity between this Leveller document and the political views of the principal Leveller leader.131 An essential feature of Leveller philosophy was its emphasis on equality – political equality, that is, expressed specifically in terms of the franchise but resting basically on the principle that sovereignty resides ultimately in the people as a whole and the consequent right of individuals to elect their own representatives to Parliament. Their notion of equality, however, did not include specifically the social and economic equality advocated by the Diggers: this, of course, is why Digger texts sometimes referred to its own adherents as “true levellers.” One Leveller statement that sets out their view of equality, and indeed one of the most comprehensive and coherent expressions of their political thought, was the “first” Agreement of the People, published anonymously in November 129 Aylmer, Levellers, 75; the “first” Petition is printed at 76–81. 130 Ibid. 131 Much of the Lilburne document is printed in Aylmer, Levellers, 56–62.

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1647, attributed quite implausibly to the “Agents of the five Regiments of Horse” and addressed to the “free Commons of England.”132 Its preamble portrayed its supporters as members of the successful parliamentary army who were seeking “our Common Rights and Liberties;” and it went on to ask (1) that the present Parliament be disbanded on 30 September of the following year (i.e., 1648);(2) that “the People … chuse themselves a Parliament once in two years, viz. upon the first Thursday in every 2d March, after the manner as shall be prescribed before the end of this Parliament”; (3) that this body and all subsequent such parliaments have full authority for exercising all the normal powers of sovereignty, “being inferior only to [the people] who chuse them.” It stipulated further that Parliament, while having discretion over “the publike way of instructing the Nation (so it be not compulsive), was not to dictate in matters of religion.” And it went on (1) to outlaw military conscription; (2) to require that all citizens be indemnified against charges having to do with “the later publike differences,” a major concern of members of the New Model Army, along with their demands for back pay; and (3) to request removal of any special status before the law so that “every person may be bound alike.”133 A more discursive presentation of Leveller thought is found in a transcription of the army Putney Debates, proceedings of debates that took place in Putney church in the fall of 1647 and taken down, apparently with considerable accuracy, by William Clarke, secretary to the Army Council. They are an interesting measure of the inherently unstable character of the political status quo at the time and of the issue of the locus of ultimate political authority as among Parliament, army, and radical elements (the Levellers). Oliver Cromwell and his son-in-law, Commissary-General of Horse Henry Ireton, spoke for the army high command, with the radical interests of the army rank and file represented by several different groups: a number of democratically inclined officers such as Colonel Thomas Rainsborough, MP, and his brother, Major William Rainsborough; common soldiers known as Agitators, who purported to represent various army regiments (two for each); and John Wildman and Maximilian Petty, who represented the London Levellers and were apparently invited by the army’s senior officers (Lilburne was in the Tower at the time).

132 Aylmer suggests that Lilburne may have had a hand in writing this document, even though he was in the Tower at the time of its appearance. See Aylmer, Levellers, 88. The text of the document is reproduced in Aylmer, Levellers, 90–94. 133 The (First) Agreement of the People is in Aylmer, Levellers, 90–94.

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One obvious aspect of the Putney Debates was the attention given to the issue of the franchise for electing representatives to Parliament, a matter already noted as touched upon in the “first” Agreement of the People but not therein specified as to reform. Ireton clearly understood the Leveller proposal in this connection in the Putney disputation to require universal manhood suffrage, something he saw as resting on an appeal to natural right that entailed a direct attack on property – it constituted economic levelling – and would lead to what his father-in-law termed “anarchy.”134 (Yet Ireton, speaking for the army commanders, did not contest the need for redistribution.) Indeed, the Agreement of the People made clear that a major feature of the Leveller position was an insistence on the equality of citizens in electing representatives more fairly in terms of numbers of citizens represented, although it was silent on reform specifics, as it was regarding the base for suffrage. There has been some scholarly disagreement recently about how broad the Leveller electorate was to be,135 but there can be no doubt about their intention to broaden the franchise considerably and to remove any economic or social restrictions attached thereto. Lilburne had argued in London’s Liberties in Chains (October 1646) that every free man in the city should be able to vote in city elections and that rotten boroughs should be abolished and representation made proportionate to the amounts of tax collected in the various boroughs and counties.136 In December of the same year he gave a definition of the franchise that had no property criterion at all, and he suggested that “the poorest that lives has as true a right to give a vote as well as the richest and greatest,”137 a notion echoed a year later in the Putney Debates by the Leveller sympathizer Colonel Thomas Rainsborough, MP: “I think it’s clear that every man that is to live under a government ought first by his own consent to put himself under that government; and I do think that the poorest man in England is not at all bound in a strict sense to that government that he has not had a voice to put himself under.”138 As a result of these debates the General Army Council resolved “that all soldiers and others, if they be not servants or beggars, [sic: ed.] ought to have voices in electing those which shall represent them in 134 Aylmer, Levellers, 97. 135 Wootton, “Leveller Democracy,” 429–33. 136 Ibid., 428–29. 137 Gerrard Winstanley, The Charters of London, cited in Wootton, Leveller Democracy, 429. 138 A.S.P. Woodhouse, ed., Puritanism and Liberty. Being the Army Debates (1647–9), from the Clarke Manuscripts with Supplementary Documents, p. 53.

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Parliament, although they have not forty shillings per annum in freehold land.”139 A Second Agreement produced by a committee of Levellers and independents stipulated that, excluding supporters of the king, the electors were to be “natives or denizens of England, such as have subscribed this agreement: not persons receiving alms, but such as are assessed ordinarily towards the relief of the poor, not servants to, or receiving wages from any particular person. And in all elections (except for the universities) they shall be men of one and twenty years old, or upwards, and housekeepers.”140 There is some reason to think this last document may represent something of a compromise by the Levellers from their earlier position. But in any event it seems clear that the Levellers were far more interested in the general principle of popular sovereignty than its specific expression in universal suffrage. This is perhaps best seen in their completely unequivocal advocacy of freedom of conscience. john locke A recent authoritative commentator asserts that John Locke’s Two Treatises of Government provided “the most radical answer that had yet been given [to the two questions: which arrangements of political power do and which do not dissolve into civil wars, and the moral-jurisprudential question of who has and who has not the ‘right’ to political power? Locke’s answer being that] each individual does have and should have political power.”141 The genuinely radical character of this position lies in Locke’s view that a right to revolt exists in individuals in the same way as does their authority to form a political society in the first instance. Medieval and neo-scholastic theories of limited government, along with most Reformation resistance theory variations, conceded to “the people” a right to overthrow a tyrannical ruler but restricted the legitimacy of such action to some government agency – council, parliament, lesser magistrate, and so on – and denied this right to an ordinary or private subject. Locke removed such a restriction. The Two Treatises were composed in the period between 1681 and 1683, when its author was party to planning an insurrection against the current English monarch, Charles ii, and, along with Algernon Sydney, 139 Cited in Woodhouse, Puritanism and Liberty, 452. 140 Wolfe, Leveller Manifestoes, 297. 141 James Tully, “Locke,” in Burns and Goldie, Cambridge History of Political Thought, 617.

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involved in a plot to assassinate the king in September 1683.142 It was designed as a populist resolution of the current English problem: the people should reappropriate their political power through a revolution so as to “continue the Legislative in themselves or erect a new Form, or under the old form place it in new hands as they think good.”143 Their publication in 1689 applied the same view directly to the Glorious Revolution of the previous year, which had brought William of Orange and Mary to the English throne. At the very beginning of its Preface Locke explicitly suggested that the views therein, “I hope are sufficient to establish the throne of our great restorer, our present King William; to make good his title in the consent of the people; which being the only one of all lawful governments, he has more fully and clearly than any prince in Christendom.”144 Locke, that is, maintained from the beginning of the Two Treatises that the ultimate legitimacy of William’s success in arms required further grounding in the consent of the people, presumably, again following Locke’s own text, to be expressed by way of a constitutional convention.145 Thus, “the context in which Locke explicitly places the Two Treatises reflects the practical contests and theoretical debates over political power in his generation and of the previous sixty years [as he himself declared in Some Thoughts Concerning Education]146 – the struggles between king, parliament, and people, and theoretical discussion of them from the publication of Hugo Grotius’s The Laws of War and Peace (1625) to the Two Treatises (1689).”147

142 The authoritative Cambridge History of Political Thought, 1450–1700 gives two dates for Locke’s Two Treatises. Tully, in his essay on Locke, asserts that the work was written in the period 1681–83 (618), while the Cambridge biographical note on Locke says 1679–83 (682). 143 Peter Laslett, as Locke’s Two Treatises of Government, a Critical Edition with an Introduction and Apparatus Criticus (Cambridge: Cambridge University Press, 1960), 2.19.243, p. 428. All subsequent references to the Two Treatises will cite this edition by page number as required. 144 Locke, Two Treatises, Preface, 137. 145 Locke, Two Treatises, 1.9.81, 202–03; cf. Tully, “Locke,” in Burns and Goldie, Cambridge History of Political Thought, 618. 146 Locke, “Some Thoughts Concerning Education,” in J. Axtell, ed., The Educational Writings of John Locke (Cambridge: Cambridge University Press, 1968), 400. 147 Tully, “Locke,” in Burns and Goldie, Cambridge History of Political Thought, 618.

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Locke was born in 1632 on a modest but moderately wealthy estate in Somerset, son of a future captain in the parliamentary army during the civil wars of the 1640s.148 He received his early education at Westminster School, London, before going up to Christ Church, Oxford, where he spent some fifteen years as undergraduate, graduate fellow, and teacher. Trained in philosophy and medicine, he taught the former at Oxford before resigning in 1667 to become private secretary and personal physician to Anthony Ashley Cooper, first Earl of Shaftesbury, a career move that brought him directly into the centre of English Restoration political life. Shaftesbury was leader of a parliamentary and extra-parliamentary group attempting to force Charles II to exclude his brother James from succession to the English throne on the grounds that James was Catholic; and the group was prepared to resort to armed force to achieve its purpose if parliamentary methods proved insufficient. Locke participated fully in the group’s conspiratorial activities, and his most famous and most influential political work, the Two Treatises of Government, as already noted, was composed during the years of its author’s direct involvement in plotting against the English monarch. Even though it was not published until after William of Orange’s successful revolution of 1688, its original aim, it seems, was to provide intellectual justification for rejection of the absolute monarchy of Charles ii. Locke had spent the period between 1683 and 1689 as a refugee in Holland, where he had fled to avoid incarceration after failure of the royal assassination attempt for which Sydney was hanged. He also composed his Letter Concerning Toleration while in exile; it, too, was published in 1689. As well as being both political conspirator and author of political treatises, Locke enjoyed considerable renown as a philosopher and scientist who moved in the highest intellectual circles: his Essay Concerning Human Understanding (1690) was acknowledged as a major contribution to the science of human knowledge, and his many other works on education, the reasonableness of Christianity, religious toleration, the theory of money and general culture, as well as his extensive correspondence, yield a modern collected edition of some ten volumes. Additionally, he was a serious and successful homme d’affaires, with extensive personal interests in mercantile activities and responsibilities as advisor to the English government on economic and monetary matters. He was secretary to the Council of Trade and Plantations from 1673 to 1675, before his 148 The definitive single-volume biography of Locke is Maurice Cranston, John Locke, a Biography (London: Longmans Green, 1957), although there are many later sources for more detailed data concerning his involvement in the political plotting of the 1670s and 1680s.

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flight to the continent, and from 1696 to 1700, after the Glorious Revolution, he was a commissioner and the dominant figure on the Board of Trade, the government agency advising on economic policy. A person of many parts, then, philosopher and political theorist of the first rank, political conspirator, prominent and successful businessman and advisor on economic policy, Locke died at the age of seventy-two in rural Essex in 1704. His political thought underwent significant development from its early but unpublished formulation in Two Tracts on Government (1661)149 to the mature position expressed in the Two Treatises,150 although his basic concerns and general notions about the nature and purpose of government remained uniform. Like Hobbes and the overwhelming majority of political writers in the period that saw many nation-states in western Europe scourged by the savagery of religious and civil wars that had their origins in the religious and politico-socio-economic aftermath of the Protestant Reformation, Locke’s concern was to provide a theory and system of government that would ultimately be proof against civil strife and discord, whose specific origins in England lay in the tensions between monarch and Parliament that had led to real bloodshed in the civil war period of the 1640s and remained close to the surface during Cromwell’s commonwealth, ultimate revulsion against which produced a restored monarchy in 1660. Locke’s views in the early Two Tracts on the need to restore at least a relatively absolutist form of monarchy were not unlike those of Hobbes, as well as reflecting his reading of Grotius and Pufendorf on sovereignty.151 The restoration only renewed tensions between monarch and Parliament, however, and increased efforts by both political and publicist activists among the opposing groups, each urging its own views on how to establish political unity and thereby prevent fresh civil conflict. Two factors were closely intertwined on the current English scene: the theoretical problem, with clear and direct political implications, of the proper relationship between monarch and Parliament (monarch and people?); and the religious problem, again with direct political over149 John Locke, Two Tracts on Government, ed. P. Abrams (Cambridge: Cambridge University Press, 1967). This is the first publication of the work. 150 The Two Treatises underwent three editions during Locke’s lifetime, 1689–90, 1694, and 1698, all of which contained many printer’s errors. Locke himself made extensive corrections and some important additions to a copy of the 1698 edition, and these changes were incorporated into a sixth edition in 1764. This last edition is the text upon which all current editions are based, including the one cited here: Laslett’s, cf. n. 143. 151 Cf. supra, 63, 73–74; 97.

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tones, of how to accommodate within the unity of the state the broad and deeply based differences of religious belief that had emerged from the Reformation and challenged long-held assumptions about the need for religious uniformity in a state and a government’s duty to impose it on its subjects. The intertwining of these two issues was particularly graphic in restoration England, where the Roman Catholicism of the first two restored Stuart monarchs, Charles II and his brother James ii, especially the latter, was often the focus of the conflict between king and Parliament and the engine moving men like Locke’s mentor, the Earl of Shaftesbury, to consider and actually plan civil insurrection. The two obvious alternative positions available to Locke and others of this time asserted, on the one hand, the superiority of monarch over Parliament, the traditional theory of absolute monarchy arguably reestablished in England in 1660, and, on the other, the theory of constitutional limitation on the exercise of monarchical authority, a view whose origins lay in the corporation and conciliar theories of the middle ages. In a formula that facilitates examination of these alternatives Tully calls them, respectively, the theories of natural subjection and natural freedom, the critical element distinguishing the two being the role of the citizenry. The natural subjection model viewed individuals in a commonwealth as naturally subject to a ruler whose authority, deriving directly from God, was loosely comparable to that of a father over his children and the male head of a household over wife, family, and servants: individuals in such a polity were subjects rather than citizens. Alternatively, the more complex and more sophisticated model of natural freedom portrayed humans who, free in their original natural state, formed a polity by agreement among themselves; they undertook to be ruled by a public authority to whom they delegated the power to govern under conditions making it possible for them to recover their original power if and when their ruler abused it. Authority in the natural freedom model resided ultimately in the people, then, and their continuing consent was necessary for their ruler’s legitimacy. It was the case, of course, that some advocates of the natural freedom model had formulated impressive theories of absolutism. Locke’s own early Two Tracts was just such an example, where he followed the precedents of such doctrines as those of Grotius and Hobbes, both of whom employed Bodin’s conceptually powerful notion of sovereignty as the touchstone of an adequate theory of politics. It was a notion of sovereignty that, even conceding the element of consent in establishing the authority of a sovereign, insisted that this form of establishing political authority was not accompanied by any residual right of the people to renounce or resist it. The model of natural freedom thus was not in itself a

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guarantee of providing the specifics for an adequate theory of limited constitutional government, even though the most articulate sixteenthand seventeenth-century spokesmen of its absolutist form conceded that even individuals who had alienated their natural rights on entry into a political society somehow retained an ultimate right to defend themselves against a murderous tyrant. Only the logic, not the practical realism of this absolutist form of the natural freedom model, was at stake here. As just noted, Locke’s relatively youthful political views reflected the quasi-absolutist form of the natural freedom model. Probably a major factor conditioning his outlook at the time was that, like the other contemporary English advocate of the absolutist model, Thomas Hobbes, with whose works he was thoroughly familiar, Locke himself wished to reject any position that might encourage renewed civil strife in England: the English monarchy had just been restored at the time he wrote the two tracts. Moreover, Locke’s familiarity with and presumed favourable intellectual reaction to the notion of sovereignty found in the scientific and apparently non-partisan political treatises such as Bodin’s Six Books of a Commonweale and Grotius’s On the Laws of War and Peace, not to speak of Hobbes’s Leviathan, may also have moved him in this direction. Locke’s views on toleration were similarly much more conservative in the early 1660s than what can be found in his later Letters on Toleration.152 By the late 1670s or early 1680s, however, his actual experience with the sovereignty exercised by the restored English monarch led Locke to rethink his political philosophy. The result in literary form was his Two Treatises of Government, published in 1689 but composed as much as a decade earlier; and it, along with his Letter Concerning Toleration published anonymously in the same year, established their author as one of the most influential political thinkers of the modern era. The impact of these two works on the development and spread of representative government, both monarchical and republican, as well as on liberal economic theory has been enormous, even though they were largely rejected by his contemporaries and received only limited acceptance before the late eighteenth century.153 For all that, the Two Treatises is markedly a livre de circonstance rather than a disinterested formal work on the nature of polity. As already indicated, Locke made it clear from the opening lines of its preface that the Two 152 Cf. infra, 186-90; and Marshall, John Locke, 33–72 and passim. Locke’s mature views on toleration have no echo in the Two Treatises. See John Marshall, John Locke: Resistance, Religion & Responsibility (Cambridge: Cambridge University Press, 1994), 288–89. 153 Marshall, John Locke, 452 and note 1.

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Treatises aimed to legitimate the successful military campaign of William of Orange against James ii, arguing that William was the rightful occupant of the English throne because he enjoyed the essential for exercising political authority – that is, popular consent – and that, moreover, a critical feature establishing William’s position was the inherent right of English subjects to overthrow his predecessor for just cause. Locke, in other words, set out to establish two things vis-à-vis the status quo post of William’s seizure of the English throne by force: (1) that William had the support of the English people, as he needed to have for any appropriate application of the natural freedom model of polity, and (2) that the English people as individual citizens had full rights to overthrow William’s predecessor (even though James II had originally enjoyed legitimacy) and, presumably, to overthrow William as well should he prove himself to be a tyrant. These two elements were essential features of Locke’s mature political philosophy, but they were not the obvious and explicitly argued ones setting the ideological framework for the Two Treatises. While the preface identified his purpose as legitimizing William’s newly acquired occupancy of the English throne, Locke made clear in the same preamble that the intellectual task he set himself was to repudiate a doctrine actually being urged in the 1670s and 1680s from many pulpits of the established Anglican Church: the “natural subjection” position found in Sir Robert Filmer’s Patriarcha, a text written in the early 1640s to defend the absolute monarchy of Charles I in the run-up to the English civil wars but not published until 1679–80, when it was promoted by a large segment of the established Anglican clergy. Locke stated, again in the preface to the Two Treatises, that his published criticism of Filmer here was occasioned by the immediate circumstances of the day: I should not speak so plainly of a gentleman, long since past answering, had not the pulpit of late years, publicly owned his doctrine, and made it the current divinity of the times … I should not have writ against Sir Robert, or taken the pains to shew his mistakes, inconsistencies, and want of (what he so much boasts of, and pretends wholly to build on) scripture-proofs, were there not men amongst us, who, by crying up his books, and espousing his doctrine, save me from the reproach of writing against a dead adversary.154 154 Locke, Two Treatises, Preface, p. 138. An earlier modern commentator offered the curious description of Locke’s treatment of Filmer’s Patriarcha as a “caricature” of Filmer’s views in “a shameful piece of party journalism.” This person contended that “either Locke had failed to understand Filmer, or he misrepresented him deliberately.” See J.W. Allen, “Sir Robert Filmer,” in F.J. Hearnshaw, ed., The Social and Political Ideas of Some English Thinkers in the Augustan Age 1650– 1750 (London: 1928), 27.

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Locke, then, saw his intellectual task in the Two Treatises as twofold: (1) to criticize the doctrine in Filmer’s Patriarcha, a goal to which he devoted the first of the two treatises, and (2) to offer an alternative view, a task carried out in the second treatise and which constituted a fullblown rejection of the current English monarchy at the time it was written.155 Filmer’s Patriarcha was a very direct and simple expression of the political model of natural subjection. Fully aware that the more complex theoretical doctrine of natural freedom had its origins in Roman law and medieval corporation theory developed from the renaissance of civil and canon law in the twelfth century, and familiar also with the examples of its absolute variant in the writings of Bodin, Grotius, and Hobbes, Filmer in the 1640s, along with his parliamentary, Anglican clerical, and English noble followers of the 1670s and 1680s, was convinced that the natural freedom theory must be repudiated if further rebellion and civil discord in England were to be avoided.156 Their recipe for political stability was to have the English monarchy recognized as enjoying the God-given authority of patrimony, of which the first male, Adam, was the paradigm case and from which all subsequent forms of political authority were properly derived. Like most conventional interpreters of Lockean political philosophy, we shall not examine Locke’s rejection of the Filmer patriarchal model of a polity in the First Treatise but, rather, proceed directly to his own views, remembering in this connection that Locke did not intend the Two Treatises to be a formal and comprehensive treatment of the nature of polity along the lines of Aristotle’s Politics or even, to take an example closer to hand, of Hobbes’s Leviathan. He made no attempt to provide a formally scientific and comprehensive account of the essential features of a modern state. The Two Treatises, for example, has no treatment of either sovereignty or the much wrangled-over issue of mixed as opposed to unitary forms of political authority, even though arguably both notions need to be addressed in a full handling of the theoretical and practical issues concerning the relationship between English monarch and Parliament even in his day. Nor did he trouble himself to examine seriously the three conventional forms of polity whose enumeration went back to the classical Greek views of Plato and Aristotle.157 155 These facts underline the extent to which the Two Treatises was a work of direct political advocacy. 156 Cf. Filmer’s explicit approval of Hobbes’s advocacy for the monarchy of Charles I, supra, 121-22 and note 30. 157 Locke did make brief mention of “the forms of a commonwealth,” listing democracy, oligarchy, and monarchy as the comprehensive set of three, and he

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The character and structure of Locke’s thought in the Two Treatises were expressed directly in terms of the actual conflict between English monarch and English people as Locke perceived it, with the critical issue being the essentially religious rights of individuals who feared the restoration of state-imposed Catholicism via a natural subjection form of monarchy headed by the Catholic James II. And, moreover, as his Letter Concerning Toleration makes clear, Locke was anxious to protect the English citizenry, specifically the Dissenters, from the relatively conservative form of Anglicanism currently favoured by the prelates and clergy in the established church as well as by a significant number of members of Parliament who supported the patriarchalism of Filmer and who had been attempting for several decades to impose this form of religious conformity on the English population. For these reasons Locke reworked and logically extended the argument normally described in the natural freedom model of polity. Its conventional form of expression legitimated a right to revolt against tyranny by claiming that the people could alienate their obedience to a tyrannical monarch because they had initially consented to political authority on condition of its proper exercise, while going on to maintain that the people’s right of revolt should be expressed through some person or group representative of the whole people. In Locke’s England, of course, this would have been the English Parliament. For his part, however, Locke extended the right of revolt directly to individual citizens, seeing this as the only way to provide protection for religious dissenters against both an absolute monarch and a parliament claiming to represent the people.158 Provision of rights of religious liberty to the Dissenters, who were after all only some 10 percent of the English population in Locke’s day, required that the whole locus of original political authority traditionally described as residing “in the people” and expressed through “popular consent”

also offered the simple unexamined assertion that “the community may make compounded and mixed forms of government as they think good.” See Locke, Two Treatises, 2.10.132. One might also go back to Althusius for a rather ambiguous early modern intimation of this point regarding an individual citizen’s right to resist. See supra, 35-36. 158 It can be argued that Suárez’s advocacy of tyrannicide perhaps afforded this right, at least implicitly, to an individual subject, but certainly there was nothing explicit on the point in the Suárezian text. See Suárez, Defensio fidei catholicae, 6.4.13–16.

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be clearly designated as resting in the people as individuals rather than as a collective or corporate whole.159 This was Locke’s radical formulation of the popular consent-based theory of polity developed by the medieval canonists to provide a resolution for the scandal of the Great Schism.160 Locke required more of this theory than the fifteenth-century conciliarists, whose solution to the exercise of absolute power by an errant pope was an appeal to the authority of a general church council as being superior to the personal head of the church when that individual exceeded the limits of his authority. He also required more of this general theory of consent than that invoked by either Luther, Calvin, the Huguenot resistance theorists, or the parliamentary opposition to Charles I when it took up arms against the king, claiming legal status as collective representative of the English people as a whole. Locke required a theory locating ultimate political authority in each individual citizen; only in this way could he legitimize revolt against the tyranny of religious conformity imposed by either monarch or Parliament. Locke opened the formal presentation of his doctrine at the beginning of Book II of the Two Treatises with a simple summary of his rejection of Filmer’s absolute patriarchalism detailed in Book I: “the power of a magistrate [i.e., any political authority] over a subject may be distinguished from that of a father over his children, a master over his servant, a husband over his wife, and a lord over his slave,”161 and he went on immediately to define political power as “a right of making laws … for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the public good.”162 He then proceeded (2.2) to describe the “state of nature,” the natural condition of humans whose essential features are shared by all individuals in their own right before (i.e., logically if not necessarily 159 It must be noted, however, that Locke did not extend his advocacy of religious toleration to either Roman Catholics or atheists. See infra, 190. On the point of the number of Dissenters in Locke’s day, see James Tully, “Introduction,” in John Locke, A Letter Concerning Toleration (Indianapolis: Hackett, 1983), 2. Cf. Marshall, John Locke, . Harris makes the correlative argument that Locke maintained, in his An Essay Concerning Human Understanding, that all humans are equal in partaking of the ability to understand and that this undercuts any theory of royal absolutism that presumes the ruler, as such, to be wiser than his subjects. See Ian Harris: The Mind of Locke (Cambridge: Cambridge University Press, 1994), 173–5. 160 See Monahan, From Duties towards Rights, 68–127. 161 Locke, Two Treatises, 2.1.2. 162 Ibid., 2.1.3.

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historically prior to) becoming members of a political society. The “state all men are naturally in [is] a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature … a state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another.”163 Locke thus set himself squarely in the conventional medieval natural law tradition of political thinking, describing the freedom enjoyed by all individuals in their natural state as limited only by the dictates of natural law; and in the text immediately following he was at pains to distinguish his state of nature as bounded by natural law from that outlined by Hobbes in the Leviathan: “And here we have the plain difference between the state of nature and the state of war, which however some men have confounded, [they] are as far distant, as a state of peace, good will, mutual assistance and preservation, and a state of enmity, malice, violence and mutual destruction, are one from another.”164 Continuing to follow this unacknowledged anti-Hobbesian line, he rejected Hobbes’s claim that individuals in the state of nature were 163 Ibid., 2.1.4. Until recently there has been some confusion about what Locke meant by his state of nature and the laws of nature, caused perhaps by the fact that his own specific work on the subject only became available after his personal papers and part of his library passed from private hands to the Bodleian Library in 1942. Locke’s Essays on the Law of Nature was published in the original Latin, with an English translation, only in 1954. See John Locke, Essays on the Law of Nature, ed., W. von Leyden (Oxford: Clarendon Press, 1954). On the general character of Locke’s natural law theory, especially his notion of property as part of the natural law, see James Tully, A Discourse on Property: John Locke and his Adversaries (Cambridge: Cambridge University Press, 1980). Harris offers an analysis of Locke’s Essay on the Laws of Nature, contrasting its contents with Hobbes’s views. See Harris, Mind of Locke, 78–102. 164 Locke, Two Treatises, 2.3.19. Leo Strauss’s interpretation of Locke’s natural law theory as a form of closet Hobbism, requiring an esoteric reading of specific texts from the Two Treatises, can only be described as grotesque. Locke continued to express the traditional medieval natural law doctrine in its basic outline even though his understanding of it was somewhat imperfect, having been mediated through its presentation in Descartes’ philosophy. The whole issue of Locke’s rejection of the Cartesian doctrine of innate ideas needs development in this connection, especially inasmuch as Locke himself seems originally to have accepted innate ideas, and his reasons for rejecting this position in the Essay Concerning Human Understanding (1690) are obscure. See Marshall, John Locke, 30–32.

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completely free to act and dispose of themselves without limit or restriction, specifically denying that individuals could freely submit to slavery: “A man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himself under the absolute, arbitrary power of another, to take away his own life, when he pleases … he that cannot take away his own life, when he pleases … cannot give another power over it.”165 After making clear that anyone who submitted to the “absolute, arbitrary power of another” violated natural law in the same way one did by consenting to self-enslavement, 166 Locke turned to a presentation of his theory of property (2:5), an aspect of his overall doctrine that has led to some confusion about his views and to a recent interpretation as wrongheaded as it is influential.167 Careful in the first instance not to restrict the meaning of property to material substances and goods, he made it clear that an individual’s original property is the self and that entitlement to the possession of other goods is an extension of possessing one’s self. Significant here, however, is what Locke means by having property in the self; it is not what we might mean today when we say that individuals own pieces of property as objects that are theirs to dispose of as they please. Locke understands having “a property in” as a right to use in conformity with the laws of nature. As already mentioned, individuals do not, for Locke, own 165 Locke, Two Treatises, 2.4.23. Locke, however, accepted that slavery was sanctioned by natural law in the specific case of prisoners taken in combat in a just war: “there is another sort of servants which by a peculiar name we call slaves, who being captives taken in a just war, are by right of nature subjected to the absolute dominion and arbitrary power of their masters.” See Locke, Two Treatises, 2.7.85, 322–23. He also seems to have sanctioned and even engaged himself in the African slave trade. 166 Ibid. 167 “Locke’s case for the limited constitutional state is largely designed to support his argument for an individual natural right to unlimited private property” (C.B. Macpherson, “Editor’s Introduction,” in John Locke, Second Treatise of Government, ed., C.B. Macpherson [Indianapolis: Hackett Publishing Co., 1980], vii). This interpretation of Lockean political philosophy in terms of Macpherson’s concept of possessive individualism is now thoroughly discredited, despite its initial large-scale acceptance. As already noted and further explained infra, Locke’s emphasis on the natural rights of the individual against tyranny, or even against interference from monarchical and other types of political authority, owed more to his defence of nonconforming religious views than to the early mercantilist rejection of government interference against the unregulated practice of economic free enterprise.

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themselves in the sense of being able to dispose of themselves in any manner they see fit: only God exercises this kind of dominion over His creation. He then went on to assert that “God … hath given the world to men in common,” a view grounded in both “natural reason” and “revelation”:168 every individual has “a right to their preservation, and consequently to meat and drink, and such other things as nature affords for their subsistence.”169 His aim here, of course, was to legitimize private property, and he did so by arguing that an individual’s right of self-preservation entailed a further right to use the goods of the earth, this latter right being only expressible through acquisition or appropriation of such goods through labour. The right of possession or appropriation of material goods, the right to remove them from the pool common to all, then, was earned by the expenditure of one’s labour: “God gave the world to men in common; but since He gave them it for their benefit … it cannot be supposed he meant it should always remain common … he gave it to the use of the industrious and rational.”170 “Thus, labour in the beginning gave a right of property, wherever any one was pleased to employ it upon what was common”;171 “supposing the world given as it was to the children of men in common, we see how it is labour indeed that puts the difference of value on every thing.”172 He then set a limit on the individual’s right of property acquisition, validating this right by the notion of practical use based on the right of self-preservation: individuals were entitled to remove from the common pool only so much as could be used without thereby interfering with the similar rights of others to appropriate material goods. And the criterion of limit was spoilage! Even using the appropriating tool For criticism of the Macpherson thesis, see Alan Ryan, “Locke and the Dictatorship of the Bourgeosie,” Political Studies 13 (1965): 219–30; John Dunn, The Political Thought of John Locke (Cambridge: Cambridge University Press, 1969); E.J. Hundert, “Market Society and Meaning in Locke’s Political Philosophy,” Journal of the History of Philosophy 15 (1977): 33–44; Keith Tribe, Land, Labour and Economic Discourse (London: Routledge and Kegan Paul, 1978), chap. 3; James Tully, An Approach to Political Philosophy: Locke in Context (Cambridge; Cambridge University Press, 1993), 71–95. 168 Locke, Two Treatises, 2.5.26. 169 Ibid., 2.5.25. 170 Ibid., 2.5.34. 171 Ibid., 2.5.45. 172 Ibid., 2.5.40. Here Locke repeats the view of Grotius that entitlement to ownership of material goods is based on labor in acquiring them. See supra, 61-62.

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of labour, no one was entitled to take more from the common pool than he or she could use without the goods being spoiled: It will perhaps be objected … that if gathering the acorns or other fruits … makes a right to them, then any one may ingross as much as he will … Not so. The same law of nature, that does by this means give us property, does also bound that property too. “God has given us all things richly,” 1 Tim. vi. 17, is the voice of reason confirmed by inspiration. But how far has he given it us? To enjoy. As much as any one can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in: whatever is beyond this, is more than his share, and belongs to others.173

Locke was opposed to the unlimited acquisition of material property at the expense of the rights of all others to their needs for self-preservation: the right all individuals have to what we might call the necessities of life has priority over the right of any one of them to acquire more property than needed for their own self-preservation. An individual was never entitled to remove from the common pool goods in excess of his or her own needs that others might need for their own survival. Locke went on to argue, however, that the invention and consensually agreed-upon value of money as an instrument of exchange amended the original spoilage limitation on individual acquisition and expanded the meaning of value to include currency (gold and silver) as well as labour: But since gold and silver, being little useful to the life of man in proportion to food, raiment, and carriage, has its value only from the consent of men, whereof labour yet makes, in great part, the measure, it is plain, that men have agreed to a disproportionate and unequal possession of the earth … This partage of things in an inequality of private possessions, men have made practicable out of the bounds of society, and without compact, only by putting a value on gold and silver, and tacitly agreeing on the use of money.174

Locke thus clearly held that the introduction of money as a means of exchange, something agreed upon “without compact” and “tacitly” in the state of nature (“out of the bounds of society”), removed the original de facto limiting case for all individuals to have an equal share in property – that is, the amount each needed for their own preservation, what any individual would be motivated to acquire but which in any case would be marginal and thus leave plenty for others similarly modestly 173 Locke, Two Treatises, 2.5.31. 174 Ibid., 2.5.50.

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motivated (not to speak of the more general limiting condition of actual use before spoilage). The introduction of coinage legitimized unequal distribution and possession of property. As already mentioned, considerable attention has been paid recently, with some attendant confusion, to the Lockean theory of property, especially as regards Locke’s assertion that legitimizing unequal propertyholding based on money took place before or outside the establishment of political society. Macpherson, in particular, identified Locke’s theory of money and its function in legitimizing the unequal distribution of property as the core element and main intent behind the Two Treatises, and he went on to attribute an incipient form of free enterprise capitalism to its author.175 Certainly, the central location and significance of the theory of property and money found in the Two Treatises, along with its arguably ambiguous and obscure meaning, has led to an enormous focus of interpretive interest on this aspect of Locke’s doctrine, particularly in the decades following the Macpherson thesis of “possessive individualism.” A critical aspect of his theory of polity, it is also where Locke’s economic and political thought come into alignment. The ambiguities of his brief and poorly stated economic views in the Two Treatises can be clarified by looking at their fuller expression in an earlier formulation of the late 1660s and in the economic pamphlet Some Considerations of the Consequences of the Lowering of Interest and Raising the Value of Money (1692), whose dedication acknowledged that its views on interest came from work done some twenty years earlier.176 Locke’s position here, common among mercantilists of his day, was that money had more than exchange value; a second value was as a means to stimulate trade and thereby develop the economy as a whole. 175 Macpherson, “Editor’s Introduction,” vii. Cf. his more extensive treatment of Locke in C.B. Macpherson, The Theory of Possessive Individualism (Oxford: Clarendon Press, 1962), 203–14. 176 Locke’s early writings on interest are found in a forty-three-page manuscript divided into three sections, the first two of which were written in 1668 and the third, a so-called Supplement, in 1674. Except for the deletion of a segment having to do with foreign exchange, this whole manuscript appears in a modern reprint in William Letwin, The Origins of Scientific Economics (London: Methuen, 1963), 273–300. An important recent article linking Locke’s early economic theories to the Two Treatises, and to which I am indebted for much in this section, is Patrick Kelly, “‘All things richly to enjoy’: Economics and Politics in Locke’s Two Treatises of Government,” Political Studies 36 (1988): 273–93.

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Money was perceived as an active, dynamic element because of the stimulus it could give to breaking the shackles of penury and deprivation consequent upon a stagnant economy. The theory behind this view, again part of the conventional economic thinking of Locke’s time, was that the volume of buying and selling activity at any given price level, that is to say, the volume of circulation of goods, was a direct function of money supply. Hence an increase in the money supply meant an increase in demand for goods, with an attendant benefit to the supplier and to the labour market in meeting this demand. Money was seen as necessary for trade in getting production going by procuring materials and hiring labour and in enabling customers to purchase the finished goods. When money supply was insufficient, then, either because it was lacking for the purchase of material, the hiring of labour, or as the means to acquire finished goods, production would fall. For Locke, as for Petty in his A Treatise of Taxes and Contributions (1662), the level of trading activity depended on the supply of money in circulation.177 In the 1674 Supplement to his 1668 economic manuscript, Locke also expressed directly a view found in almost formulaic and hence obscure form in the Two Treatises. Money has an intrinsic value in addition to its value as an instrument of exchange, in that it can accommodate producers of consumables keen to exchange them before they spoil. And, as already noted, Locke employed this notion as the hinge on which the legitimacy of an unequal distribution of wealth turned. He also justified charging interest on loaned money on the grounds that the borrowed money had a value to those who lacked it and, thus, were willing to pay for its use in the same way that someone who lacked land was prepared to pay someone who had a surplus for its use. Money was thus equated with land as a potential source of income, with the borrower’s labour in exploiting the borrowed funds being what produced new wealth, a notion reflecting the earlier view on how money drives trade, and which Locke seems to have derived from Robert Filmer’s 1653 tract on usury (although he may not have been aware of the authorship as the Filmer work was published anonymously).178 Locke’s late 1660s statements on money and price theory, however, expressed a relatively simple concept of supply and demand and did not stress the developing theory of human labour as an active source of wealth and value so strongly asserted in the Two Treatises. To accommodate this monetary doctrine with his views on the value of labour found in the Two Treatises one should remember that Locke’s purpose in the 177 Kelly, “All things richly to enjoy,” 277. 178 Ibid., 279 and note 25.

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later work was to reject the Filmer patriarchal theory of political authority and establish a basis for individual revolt against tyranny. Content in his earlier political and economic writings to find the foundation of property in the state, he offered a theory of property connected with the concepts of consent and contract, which had been traditional for centuries. A consequence of this position, however, and one perhaps more clearly seen by Locke when he addressed the issues of criticizing Filmer’s patriarchalism and justifying revolt in the Two Treatises, was that the same argument used to justify rebelling against a tyrannical ruler whose actions broke the social contract might also imply that individual property rights dissolved when the original compact was dissolved.179 Such an implication could be avoided, however, by relocating the origins of property rights elsewhere than in the original social contract. The legitimacy of property as well as of the unequal distribution of wealth could be preserved by locating these elements in the state of nature. And, as already noted, this was exactly what Locke maintained in the Two Treatises: agreement on the use of money as an exchange mechanism and the resultant unequal distribution of wealth came about through tacit consent among individuals in the state of nature. The rights of property, including unequal individual rights to material possessions, whose preservation it was the task of government to maintain,180 rested, then, in the natural law rather than in human agreement. Even so, however, the Macpherson thesis claiming Locke’s main purpose in the Two Treatises was the preservation of unequal property rights is seriously overdrawn. His purpose in the 1680s Two Treatises text was clearly political, even though there is an economic subtext that accepted the British mercantilist status quo as Locke himself knew and promoted it. But he did not foment revolt against the English monarchy of his day and justify its successful overthrow by force because he had a hidden economic agenda in mind. Locke would not have needed to advocate the limited constitutionalism of the Two Treatises with its entailed criticism of the Stuart monarchy of Charles ii and James ii in order to 179 Filmer had made this very argument: “If our … forefathers did voluntarily bring in propriety of goods and subjection to governors, and it were in their power … to alter their minds, and restore them to their first condition of community and liberty, what reason can there be alleged that men that now live should not have the same power? … then it will be lawful for every man … to dissolve all government, and destroy all Property.” See Filmer, “Observations concerning the Originall of Government,” in Sir Robert Filmer, Patriarcha and Other Political Writings (Oxford: Basil Blackwell, 1949), 273–74. 180 Locke, Two Treatises, 2.131.

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establish adequate grounds for free enterprise capitalism. The kingover-Parliament absolutism of the restored English monarchy to which Locke took such exception did not need to be overthrown to justify an economy of unequal distribution of wealth. The restored Stuart monarchy and its supporters had no objections, theoretical or otherwise, to Locke’s economic theories; indeed, they themselves promoted them. Nor was it the case that Locke accepted without qualification the unlimited personal acquisition of wealth or property. Although he approved of unequal distribution of wealth, Locke seems always to have held to the principle that an individual may appropriate only “as much as leaves enough and as good for others” insofar as everyone had an equal right to self-preservation; that is to say, and, as just mentioned, he argued for the value of government in protecting citizens from the “inconveniencies” of the state of nature, where individuals were able to indulge themselves in acquisitive desires because of the agreement to use money to eliminate the natural law limitations related to spoilage in the primitive state. Moreover, he rested the individual human’s right to selfpreservation, that is to say, to the material needs for human survival, on the natural law to which all must conform, and he insisted further on the traditional natural law position that positive law should conform to the law of nature.181 Given this, the limiting case for Locke’s acquisitive individual in accumulating an unequal share of wealth would be the point at which further acquisition would infringe on some other individual’s need for that same property for self-preservation. An airy theoretical concept, perhaps; but not one lacking intellectual coherence. Accepting that Locke admitted of an unequal distribution of wealth based on human agreement to give arbitrary value to money as a commodity that did not spoil, his theory of property need not be construed as giving carte blanche to the worst forms of free enterprise exploitation. It is even possible to perceive that the uneasiness in his remarks about unequal property possession among individuals might have given vent to his comment on the “corruption and vitiousness of degenerate men” because, for Locke, this is what motivated individuals to quit the state of nature. Two other factors should also be acknowledged, each of which can serve to mitigate Macpherson’s harsh interpretation of Locke’s theory of property: (1) Locke himself was fully convinced that, insofar as it entailed a mixing-in of labour, property acquisition produced an improvement of at least “tenfold” in the value of that to which the labour had been added, thus at least indirectly increasing rather than decreasing 181 Ibid., 2.5.30; 2.6.59.

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the overall store of material goods; and (2) he apparently saw no need to be concerned about the overall adequacy of the earth’s material wealth supplied by a benevolent Creator, or about its failing to supply the self-preservation needs for all humankind even while some were acquiring more than others.182 Smug and self-satisfied, unfeeling and unconcerned regarding the current social and economic conditions of the English urban and rural poor he may have been, as well as being unaware of what Marx was to teach us about how an economic system promoted by those who benefit most from it can lead to large-scale exploitation and suffering. It is not ipso facto the case, however, that Locke was thereby the kind of previously unnoticed capitalist or mercantilist ogre Macpherson has made him out to be. For Locke, as for Hobbes, the original condition of humans was marked by freedom or liberty; but, as noted earlier, he was careful to take explicit exception to Hobbes’s definition of liberty as the complete absence of restraint, and to the latter’s rhetorical juxtaposition of liberty and law: Law, in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interest … the end of law is not to abolish or restrain, but to preserve and enlarge freedom … for liberty is, to be free from restraint and violence from others … liberty is not, as we are told, a liberty for every man to do what he lists … but a liberty to dispose, and order as he lists … within the allowance of those laws under which he is.183

Originally “those laws” were the laws of nature discernible as prescriptions for human behaviour through the operation of reason as the individual’s naturally possessed instrument for knowing how to act. Unlike Hobbes, Locke held the traditional view of the state of nature as basically a condition of reason, stability, and peace, not one of war and constant strife. Yet “inconveniencies” were experienced.184 Moreover, and again rejecting Hobbes, Locke returned to the older Aristotelian-Thomistic view that humans are naturally social with a need to live in society: “God having made man such a creature, that in his own judgment, it was not good for him to be alone, put him under strong obligations of necessity, convenience and 182 The evidence on this point is not well presented in the Two Treatises, but it seems that Locke might have been prepared, for example, to encourage immigration to the new world; he maintained, interestingly, that “in the beginning all the world was America.” See Locke, Two Treatises, 2.4.49. 183 Locke, Two Treatises, 2.6.57, 305–06. 184 Ibid., 2.9.127, 66; 2.7.90.

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inclination to drive him into society.”185 Locke addressed directly the question of why, “if man in the state of nature be so free … will he part with his freedom? why will he give up this empire, and subject himself to the dominion and control of any other power?”;186 but entirely too much has been made of the difficulty Locke might be imagined to have had in responding to this question.187 Locke’s justification for humans entering into a social contract differs markedly from that of Hobbes, whose deliberate substitution of a condition of war of all against all for the traditional description of the state of nature as basically tranquil and even idyllic made it comparatively easy to explain why individuals would seek to leave their natural condition as soon as possible. His motivation was just the opposite from that of Hobbes, however: his objective was to provide a basis for legitimizing the individual’s right to revolt against what he perceived as the tyranny of the restored Stuart monarchy, not to establish the propriety of being subjected to it. And to achieve this he needed to describe the nature of political society into which individuals freely opted as an extension of, rather than an antithesis to, the original state of nature. For Locke the function of a commonwealth was to reinforce features originally present in the state of nature, extend them to cover off the imperfections of that state, and express them more efficiently in terms of the power of the group as a whole rather than depend on the rightful but necessarily limited power of the individual. This is why Locke’s answer to his own question of why an individual would willingly leave the state of nature to enter society is “obvious … though in the state of nature he hath such a right [‘to be absolute lord of his own person and possessions, equal to the greatest and subject to no body’ because] the enjoyment of it is very uncertain, and constantly exposed to the invasion of others.”188 “Notwithstanding all the privileges of the state of nature, being but in an ill condition, while they remain in it, [individuals] are quickly driven into society.”189 And again without acknowledging his sources, Locke here invoked the centuries-old Augustinian view of political authority: it is a practically necessary response to the avariciousness and self-serving inclinations of human individuals, what Locke termed 185 Locke, Two Treatises, 2.7.77. 186 Ibid., 2.9.123. 187 Cf. Macpherson, “Editor’s Introduction,” xiv. 188 Locke, Two Treatises, 2.9.123. 189 Ibid., 2.9.127. Marshall reviews at length Locke’s pessimism regarding the realistic prospects of individual humans reacting positively to, or even being able to appreciate, the natural promptings of reason. See Marshall, John Locke, 436–38.

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“the corruption and vitiousness of degenerate men.”190 And as already noted, he also had at hand the Aristotelian notion of the naturalness of society: humans are by nature social and not, as Hobbes would have it, constantly warring opponents. Despite much verbal similarity in the descriptions Locke and Hobbes ascribed to individuals in the state of nature, then – each individual is free, equal, and rational and consents voluntarily to form a political society – their respective views of these “natural” individuals are strikingly different. Hobbesian natural individuals are single units motivated solely by the self-aggrandizing tendencies of psychological egoism and, because sufficiently aware and fearful of the conditions of constant war of all against all, they eagerly opt out of their state of nature in order to enjoy the protection of a ruler who, at his pleasure and without their consent, may subject them to an absolute form of government. For Locke, on the other hand, individuals in the state of nature are naturally inclined to join with others to fulfil needs not practically guaranteed in the natural state, as well as to acquire better protection for the same natural qualities they enjoyed prior to forming a polity, and who, therefore, do not forfeit any natural rights when they agree to come under political authority but, rather, accept such authority on condition precisely that they have not given anything up.191 For Locke the origin of any political society lies in the individual consent of a number of humans to come together in a polity. The number of such individuals is not critical, but the fact that each agrees with all the others is: The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community … This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or 190 Locke, Two Treatises, 2.9.128; cf. 2.8.111, 342–43. 191 A provocative recent interpretation of Locke’s theory of polity asserts that individuals contracting into a political community cede their natural property rights to the state, such that political authority thereby has a right to redistribute individual property inequalities for the common good of the community as a whole. See Tully, Discourse on Property, 163–70. I do not accept this reading of Locke, but neither do I subscribe to Nozick’s enthusiastic claims that Locke’s social contract theory imposes such limitations on state authority as to prevent governmental redistribution of wealth on social grounds. See Robert Nozick, Anarchy, State and Utopia (Oxford: Basil Blackwell, 1924), 169.

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government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.192

His emphasis on the individual consent of all to the original social contract was then used as the intellectual pivot on which to swing roundly against Filmer’s view that “all men being born under government, they are to submit to that, and are not at liberty to begin a new one.”193 And in moving against the Filmer doctrine of natural subjection of all to the paternalistic model of monarchical absolutism Locke also took a roundhouse swing at the absolutism of Hobbes’s Leviathan, even though Hobbes also grounded subjection to political authority in a contract engaging the original consent of every individual. Locke made it clear, moreover, that the exercise of absolute political power was a kind of contradiction in terms as regards the proper notion of good government in that it represented a form of the state of war (of ruler against subject) that was worse than the original state of nature: “It cannot be supposed that they should intend, had they the power to do so, to give to any one, or more, an absolute arbitrary power over their persons and estates, and put a force into the magistrate’s hand to execute his unlimited will arbitrarily upon them. This were to put themselves into a worse condition than the state of nature.”194 Rousseau would make the same argument in the Social Contract.195 As we have seen already, Locke’s ultimate purpose in taking this stand was to place the right of revolt against tyrannical government in the hands of individual citizens. This he did by stressing that the individual’s initial consent to be governed related to the purpose of government itself – that is, the protection and preservation of property – and by defining property in the first instance as the self and its basic right of self-preservation. Individuals in combination with others as individuals generate the authority in a polity, and each does so for the purpose of self-preservation. Accordingly, Locke argued, these same individuals retain ultimate control over their own “property” even after having agreed to live under a government of laws.196 They do not alienate what they cannot alienate: the ultimate right to self-preservation. Hence, they are only acting naturally when they revolt against a ruler who, by acting against the very rights of his subjects, is warring on them and ipso facto 192 193 194 195 196

Locke, Two Treatises, 2.8.95, 330–31. Ibid., Two Treatises, 2.8.100, 334. Ibid., 2.11.137, 359. See infra, 209. Locke, Two Treatises, 2.19.212, 407–08.

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destroying the very nature of the polity in which they have agreed to live. The acts of a tyrant are self-destructive of any legitimate authority he might have had, and they reduce the ruler ipso facto to the status of a private person and, so to speak, place the individual citizens so reduced back in the natural condition of status quo ante establishment of the polity, thereby requiring them to start over. This is what Locke claimed in the preface to the Two Treatises: this is what the English people had done when they accepted William of Orange after his successful war against James ii. Locke thus made it clear that, in his words, “governments are dissolved from within”197 as well as from without (by military conquest), making it equally clear that this is justifiable under certain circumstances (i.e., misuse of public authority). He argued that this occurs when the legislative (i.e., the recognized and popularly agreed upon procedure and/or instruments for governing) is changed: “the constitution of the legislative is the first and fundamental act of society, whereby provision is made for the continuation of their union, under the direction of persons, and bonds of laws, made by persons authorized thereunto, by the consent and appointment of the people.”198 And he instanced a number of ways in which this could occur in a legislative made up of: “1. a single hereditary person, having the constant, supreme, executive power and with it the power of convoking and dissolving the other two within certain periods of time. 2. An assembly of hereditary nobility. 3. An assembly of representatives chosen, protempore by the people.”199 In other words, the contemporary model of English governance. Such a legislative can be changed, and its government thereby “dissolved from within” in a number of ways reacting to the arbitrary actions of either prince or other instruments of authority, including the assembly of representatives, Parliament. whensoever … the legislative shall transgress this fundamental rule of society [whenever the legislators endeavour to take away, and destroy the property of the people, or traduce them to slavery under arbitrary power] … by this breach of trust they forfeit the power the people put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and, by the establishment of a new legislative (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society.200 197 198 199 200

Ibid., 407. Ibid., 407–08. Locke, Two Treatises, 2.19.213. Locke, Two Treatises, 2.19.222, 412–13.

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The balance of Locke’s text in the last chapter of the Two Treatises, “Of the Dissolution of Government,” makes it clear that this right and power lie with individuals who make up the people and that it is related directly to individual self-preservation: “Whosoever uses force without right, as every one does in society, who does it without law, puts himself into a state of war with those against whom he so uses it; and in that state all former ties are cancelled, all other rights cease, and every one [sic: ed.] has a right to defend himself, and to resist the aggressor.”201 And to make certain his readers saw him as an advocate of the right of revolt against monarch and/or Parliament, Locke quoted “Barclay, the great assertor of the power and sacredness of kings … [to the effect] that it is lawful for the people, in some cases, to resist their king.”202 Mentioned briefly earlier in connection with his purpose in affording the right of revolution to individual citizens, a last element in Locke’s political philosophy to be considered is his theory of religious toleration. As was the case with his final position on the rights of individual citizens to revolt against their ruler, Locke’s mature views on religious toleration were considerably more radical than were the ones he expressed early in his career. In fact, the development of position as regards Locke’s thinking on the problem of toleration is a paradigm case for the argument that political thought tends to be formulated in a way that reflects the political realities in which the thinkers concerned find themselves, and it is expressed in language appropriate to the terms of discourse meaningful at the time. Just as his first views on the nature of sovereignty upheld the restored monarchy of Charles II and changed to the social contract theory of the Two Treatises only after Locke experienced what he saw as the absolutism of Charles and the Cavalier Parliament, his earliest statements on the place of religion in a commonwealth expressed a conservative position favouring a state-imposed religion. Only later did he insist on the separation of church and state in order to prevent a ruler, as such, from having any say in purely religious matters: the ruler was responsible only for the well-being of citizens as regards temporal affairs, his authority affecting citizens’ religious beliefs extending only to the point where these impinged on the secular and interfered with subjects meeting their political responsibilities. 201 Locke, Two Treatises, 2.19.232, 419. 202 Ibid. Locke was well aware, of course, that the Barclay position sanctioning rebellion was greatly circumscribed in comparison with his own; indeed, he criticized Barclay for the practical ineffectiveness of his views even while citing him in support of the principle of resistance. See Locke, Two Treatises, 2.19.233– 39, especially 235.

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The locus classicus for Locke’s doctrine of religious tolerance is his A Letter Concerning Toleration published anonymously but with Locke’s permission in October 1689 in an English translation by a fellow radical whig and religious dissenter, William Popple. It had been written in Latin in the winter of 1685 as a letter to a close friend, Philip von Limborch, while Locke was in exile in the Netherlands, and it had been published anonymously in its original form in Gouda a few months before its appearance in English. Immediately attacked by the English establishment for views that rejected current government policy set out in the Toleration Act of 27 May 1689, which denied freedom of worship to Catholics and anyone who could not accept the doctrine of the Trinity, Locke defended his position in several other small treatises: A Second Letter Concerning Toleration (1690), A Third Letter Concerning Toleration (1692), and an unfinished work published after Locke’s death: A Fourth Letter for Toleration.203 The frequency with which Locke addressed this topic shows clearly the strength of his views on it. As just noted, however, Locke’s first foray into the subject saw him opposed to toleration; only gradually did he come to adopt the position presented in the Letter. In an early text on toleration written during the chaotic period immediately preceding restoration of the Stuart monarchy, a letter to Henry Stubbs criticizing the latter’s advocacy of toleration to all religious groups (including Catholics) in An Essay in Defence of the Good Old Cause, Locke termed toleration impracticable on the grounds that it fostered disunity.204 A short time later Locke prepared but did not publish two short tracts that argued for a non-sectarian monarchical absolutism wherein the ruler would deal with diversity of religion among his subjects exclusively in terms of peace and security: while the ruler had no jurisdiction in matters of religion as such he was fully responsible for the peace and well-being of the citizenry and, thus, had authority to impose a unitary form of religion whose specifics he could deem to be matters of religious “indifference” for individual citizens. The argument here rested on the notion that every citizen should alienate irrevocably all natural powers that were indifferent as regards their personal rights, including those of religion.205 In taking this stand, as we shall see, Locke began to 203 John Locke, “A Fourth Letter for Toleration,” in John Locke, The Works of John Locke (London: Rivington, 1824.). Useful bibliographical data on the Letter Concerning Toleration can be found in Marshall, John Locke, 49, note 2. 204 John Locke, “Locke to S.H.,” in E.S. DeBeer, ed., The Correspondence of John Locke (Oxford: Clarendon House, 1976), 1:109–12. 205 The tracts were published only recently. See John Locke, Two Tracts on Government, ed. and Introd., Philip Abrams (Cambridge: Cambridge University Press, 1967).

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state many of the views that later appeared in his positive endorsement of toleration. In particular he opposed the notion of an established church, something he held to be a major threat to civil harmony insofar as its clergy could be expected, out of their ambition, to control the state so as to impose their views on the whole body of citizens. Locke had changed his position by 1667, however, when he next ventured into the publishing lists on the subject of toleration. In a thirteen-page tract entitled An Essay Concerning Toleration he had become a convert to what might be called “true” toleration, this in virtue of a simple change of practical view: he transferred the right to decide what was and what was not “indifferent” in respect of religion from the sovereign to the individual subject, thus attributing to individual citizens for the first time the right to decide for themselves what power over religious belief and practice they would give to political authority, a principle that was to become the major plank in his radical theory of political revolt in the Two Treatises. The Essay Concerning Toleration made the individual, not the magistrate, judge of what was necessary and what was indifferent in religious belief. The same principle was ringingly declared in the later Letters: subjects were not obliged to obey a law prohibiting or prescribing what they sincerely believed was contrary to their own religious convictions. In the Essay, however, Locke restricted the legitimacy of individual dissent from prescribed religious orthodoxy to what might be called passive resistance: citizens could opt not to obey state laws on religious belief and practice but had to accept the consequences of this disobedience. Such a position was of little or no practical value to the English dissenters, of course, and amounted to the same sort of advice as that initially proffered more than a century earlier by Luther and Calvin to their Reform followers.206 He went on, nonetheless, to urge the practical political advantages of a policy of toleration: it advanced peace and security in a state by removing grounds for hostility towards political authority. And he appealed to a ruler’s self-interest in implementing toleration by arguing on the one hand that enforced religious uniformity actually worked against the ruler’s interest in maintaining stability and tranquility and, on the other, that a ruler who abused his trust to uphold the common good by oppressing religious believers could expect to be punished severely by God. The next stage in the development of Locke’s final views on toleration can be seen in an anonymous pamphlet generally attributed to Locke in collaboration with his mentor Shaftesbury: A Letter from a Person of Quality to 206 See Monahan, From Duties towards Rights, 199–239.

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a Friend in the Country (1675).207 It repeated the earlier criticism of an established religion and the entailed imposition of penalties on dissenters as nothing more than a power play by the established clergy to run the country, citing chapter and verse from the contemporary English scene; and the author went on to support the activities of the Shaftesbury-led and soon-to-be-designated Whig party composed of disaffected Anglicans, dissenters, and a radical core of Civil War soldiers, levellers, republicans, and commonwealth men who had enjoyed political liberty during the Cromwellian era.208 The pamphlet went further, moreover, arguing that governments that refused to afford freedom of religion to their citizens could look forward to more than divine retribution for their perfidy: they could expect to live in fear of internal revolt, the “fear of [rightful] human resistance to restrain them.”209 Accordingly, the threat of civil war functioned for Locke as an argument for and defence of personal religious liberty: when individuals were oppressed, as the dissenters were, they could be expected to resist not only passively (his position in the Essay) but also actively with force of arms, and they would do so “justly and rightly.”210 The mature expression of Locke’s doctrine on religious toleration has become so much an essential part of liberal democratic theory that many are surprised to realize how comparatively recent was its formulation. Advocacy for toleration in matters religious had been heard, of course, from the beginning of the Protestant Reformation, when the unity of medieval Christendom in the West was shattered in many of the emerging nationstates of western Europe, and, for the first time, large numbers of Christians found themselves in conflict over the “true” religion.211 But what marked Locke’s position was the clarity of statement and argumentation, and the intensity of moral conviction and outrage in which it was expressed. His English translator, William Popple, put the matter succinctly in his brief introduction: “Absolute liberty, Just and True Liberty, Equal and Impartial Liberty, is the thing we stand in need of … this Discourse treats of that Subject … mor exactly than any yet seen, demonstrating both the Equitableness and Practicableness of the thing.”212 207 John Locke, “A Letter from a Person of Quality to a Friend in the Country,” in Locke, Works, 10:200–46. 208 Tully, “Introduction” to John Locke, A Letter Concerning Toleration (Indianapolis: Hackett, 1983), 9. I cite this edition as Locke, Toleration. 209 Locke, “Letter from a Person of Quality to a Friend in the Country,” in Locke, Works, 10: 222. 210 Locke, “Letter from a Person of Quality,” in Locke, Works, 10: 222. 211 See supra, 170–71. 212 Locke, Toleration, 21.

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For his part Locke began with a rhetorical flourish, stating that he esteemed “Toleration to be the chief Characteristical Mark of the True Church,”213 and he went on to distinguish between the two spheres of authority – civil society and the church: The Commonwealth seems to me to be a Society of Men constituted only for the procuring, preserving, and advancing of their own Civil Interests … Life, Liberty, Health, and Indolency of Body; and the Possession of outward things, such as Money, Lands, Houses, Furniture and the like [while the Church is] a voluntary Society of Men, joining themselves together of their own accord, in order to the publick worshipping of God, in such a manner as they judge acceptable to Him, and effectual to the Salvation of the souls … a free and voluntary Society … [so] the Right of making its Laws can belong to none but the Society it self, or at least (which is the same thing) to those whom the Society by common consent has authorized thereunto.214

Playing on the general theme of the separability of the two spheres of church and state, Locke went on to list elements entailed in his notion of tolerance: (1) No church as “tolerated” is “bound … to retain any … Person [who] continues obstinately to offend against the Laws of Society [i.e., toleration provides no rights to flaunt the ‘Bound of Society’ though] Excommunication neither does, nor can, deprive the excommunicated of any … Civil Goods”;215 (2) “No private Person has any Right … to prejudice another Person in his Civil Enjoyments, because he is of another Church or Religion;216 (3) No kind of ecclesiastical authority can be extended to “Civil Affairs”217 and clerics of all persuasions should “exhort all men, whether private persons or Magistrates … to Charity, Meekness, Toleration”;218 and (4) that “the care of souls does not belong to the Magistrate.”219 Locke then proceeded to deal with the then conventional and muchdiscussed distinction in magisterial dicta regarding integral “Doctrines and Articles of Faith” (which, of course, varied de facto among the various churches) and “indifferent things” (matters about which no church stipulated a fixed doctrinal position). He denied utterly that civil authority 213 214 215 216 217 218 219

Ibid., 23. Ibid., 28–29. Ibid., 30–31. Ibid., 31. Ibid., 33. Ibid., 34. Ibid., 35.

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could intrude on the former and insisted as regards the latter that, while political authority could function here, it could not do so arbitrarily but only to advance “the Publick Good”; and even less could these matters be made part of any public worship.220 By way of apparent qualification of his broad claims for religious freedom and toleration of individual religious judgment, however, at least in terms of giving balance to his radical views, Locke allowed that any person who felt obliged on religious grounds to disobey a civil law directed to the common good – a situation he thought “will seldom happen … if the Government be faithfully administered, and the Counsels of the Magistrates be indeed directed to the Publick Good” – should disobey, “abstain from the Action that he judges unlawful; and … undergo the Punishment [for disobedience], which it is not unlawful for him to bear.”221 In the final analysis, moreover, Locke accepted a major qualification or denial as regards the need for political authority to tolerate religious convictions jarring with any majority or authoritatively accepted doctrine: “That Church can have no right to be tolerated by the Magistrate which is constituted upon such a bottom, that all those who enter into it, do thereby, ipso facto, deliver themselves up to the Protection and Service of another Prince.”222 In this Locke drew the line at extending toleration to Roman Catholics on the grounds that they were subjects of a foreign power, the pope, and thus failed to meet essential conditions for enjoying civil rights in a national polity. And, further, Locke also denied the right of toleration to “those … who deny the Being of God [insofar as] Promises, Covenants, and Oaths, which are the bounds of Humane Society can have no hold upon an Atheist. The taking away of God, tho’ but even in thought, dissolves all. Besides also, they that by their Atheism undermine and destroy all Religion, can have no pretence of Religion whereupon to challenge the Privilege of a Toleration.”223 Pace his signal failure to include Roman Catholics and atheists under its umbrella, then, the Lockean concept of religious toleration as based on precisely the arguments employed in his Letters on Toleration has become an essential component in contemporary liberal political ideology and its application.

220 221 222 223

Ibid., 40. Ibid., 48. Ibid., 50. Ibid., 51.

III

Back to the Continent: Spinoza and Rousseau eighteenth-century continental political thinking is interesting in the first instance because of its continuity in perspective and context with earlier and contemporary English thought rather than with the Reformation and post-Reformation positions of Bodin, Althusius, Grotius, and Pufendorf. At the same time the first thinker to be considered here, Spinoza, has a unique interest insofar as his position reflects a scientific and comprehensive formulation not seen in English political thought of the period while clearly expressing itself in terms that connect it with that of Thomas Hobbes. spinoza Baruch (Benedict) de Spinoza warrants consideration as a political thinker less for the value or intrinsic merits of his political doctrine than because he formulated it as part of an overall and carefully worked-out intellectual position. He was both a comprehensive and a systematic thinker: comprehensive in that he consciously set out a position designed to take the whole of reality for its subject, a metaphysics in the classical meaning of this term, and systematic in that he attempted to describe how all the various intellectual disciplines, of which politics was clearly one, were integrated with one another under the overarching character of his metaphysical structure. At the same time, his political thinking reflected for the most part the realities of his own political community, the Dutch Republic, to which Spinoza’s Sephardic Jewish family had emigrated from the Iberian peninsula to escape religious persecution. Born in Amsterdam in 1632, Spinoza was educated in a Jewish school until entering his father’s business at the age of thirteen. He left his father’s employ about a decade later when he was excommunicated from the Amsterdam synagogue for unorthodox views, and he began a brief period

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of formal philosophical studies in Leiden. He returned to Amsterdam in 1657, where he remained for some three years, during which time he composed an unfinished Treatise on the Emendation of the Intellect, first published in his Opera posthuma (1677), and perhaps the Short Treatise on God, Man, and His Well-Being, seemingly a more discursive approach to the subject matter of his most authoritative philosophical treatise, the Ethics.1 He then spent several years in Rijnsburg near Leiden (1660–63) before moving to The Hague, where he was befriended by the republican politician Jan de Witt, the de facto ruler of the Netherlands from 1653 until his assassination in 1672. He lived out the rest of his life in very modest circumstances, earning his living in the trade he had learned as a rabbinical student – lense grinding. Spinoza worked on his most authoritative philosophical work, the Ethics, in the 1660s; a substantial portion of it was in existence by 1665, but it too was first published in the Opera posthuma. His most extensive political work, the Tractatus theologico-politicus (Treatise on Religion and Politics), was published in 1670, and a second, unfinished political treatise, the Tractatus politicus (Treatise on Politics), also appeared among his posthumous writings.2 A useful frame of reference for examining Spinoza’s political thought, employed by Spinoza himself, involves comparing his position with that of Thomas Hobbes, whose political writings were known to Spinoza directly. He seems to have made particular use of Hobbes’s De cive, although he probably also had read Leviathan in its Latin edition, published in Amsterdam in 1668 (we know that Spinoza did not read English).3 As indicated earlier, Hobbes also was familiar with Spinoza’s political work and considered him a more radical writer than Hobbes himself dared to be, this likely a judgment on Spinoza’s rejection of the 1 The Short Treatise was probably written in Latin and then translated into Dutch from the original, now-missing, Latin text and back into Latin from the Dutch. For bibliographical information on Spinoza’s writings, see The Collected Works of Spinoza, ed. Edwin Curley, vol. 1 (Princeton, NJ: Princeton University Press, 1985), ix-xiii, and the “Editorial Prefaces” to the various items in this volume. Curley asserts that the Treatise on the Intellect must have been written before 1661, while the Short Treatise was still being worked on in early 1662. See ibid., xiii. 2 These two “political” works, the former in part and the latter in full, are printed in Benedict de Spinoza, The Political Works, ed. A.G. Wernham (Oxford: Clarendon Press, 1958). They are slated to be published in the second volume of Curley, ed., Collected Works of Spinoza. My citations are to the Wernham volume. 3 “Letter 26,” in Spinoza, Collected Works, ed. Curley, 1:394. See William Sacksteder, “How Much of Hobbes Might Spinoza Have Read?,” Southwestern Journal of Philosophy 11 (1980): 25–40.

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authority of the Christian Scriptures and his obvious atheism – stances never admitted by Hobbes although attributed to him by a number of his critics.4 While it has not been unusual for Spinoza to be considered a follower of Hobbes, largely because Spinoza opted in many instances to employ the structure and vocabulary of Hobbes’s thought, the two differ significantly in important ways. Spinoza, for example, rejected the Hobbesian emphasis on the sacredness and inviolability of sovereign power over individual subjects, preferring to opt plainly for certain inalienable rights in the individual citizen. Like Hobbes, however, he took a very negative view about an individual’s natural propensities to interact with other humans and, also like Hobbes, he saw the “realism” of Machiavelli’s The Prince as a vast improvement over age-old traditional exhortations for political rulers to behave in a suitably moral fashion. Spinoza held that, from the beginning and for the most part, humans are ruled by their passions; accordingly, he considered that prescriptive lessons in civic virtue preached by political thinkers were no substitute for the shrewd and experienced exercise of authority by “statesmen.” So, in the Treatise on Politics, he says, Philosophers regard the passions that torment us as vices into which we fall through our own fault; and so their habit is to deride, deplore, and revile them, or else, if they want to seem more pious than the rest, to denounce them in God’s name. Such conduct they think to be godlike, and they think they have reached the acme of wisdom when they have learnt to sing the praises of a human nature nowhere to be found, and to rail at the sort which actually exists. In fact they conceive men to be, not as they are, but as they would like them to be … [they] have never conceived a political system which can be applied in practice, but have produced obvious fantasies, or schemes that could only be put into effect in Utopia, or the poets’ golden age, where, of course, there was no need for them at all … experience has taught [statesmen] that there will be vices so long as there are men. They therefore try to forestall human wickedness [and] have written much more successfully about politics than philosophers; for since experience has been their guide, they have taught nothing which could not be put into practice.5

Spinoza went on to reinforce the self-proclaimed realism of his approach by eschewing any effort to describe an ideal state; his view was that human experience had already devised all the possible types of 4 See Hobbes, Leviathan, ed. Curley, lxxiii, and supra, 140. 5 Spinoza, Treatise on Politics, 1.1, 261.

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commonwealth and all the ways of bringing subjects under political control. Accordingly, political wisdom was to be found in the judgments, policies, and laws of experienced political practitioners of “great acuteness”: I am fully convinced that every form of commonwealth which can be devised to secure human concord, and all the means required to guide a people, or to keep it within definite bounds, have already been revealed by experience … Human nature is such that men cannot live without some common system of law … such systems have been established, and public affairs conducted, by men of great acuteness … and so it is hardly credible that we can conceive anything for the benefit of an ordinary community that has not been suggested already … Thus my object in applying my mind to politics is not to make any new or unheard of suggestions, but to establish by sound and conclusive reasoning, and to deduce from the real nature of man, nothing save the principles and institutions which accord best with practice.6

It is something of a question why Spinoza would make such a disclaimer against being mistaken for an original political thinker, unless his intention was to promote his views by unacknowledged indirection. Probably his interest in political thinking as such was minimal inasmuch as he had few if any personal ambitions in that direction, and he addressed its issues solely in terms of them as integral, if relatively subordinate, aspects of his comprehensive philosophical thought. More likely, he realized that his effort to give individual and social expression to his radical theology concerning the relationship between reality (God, nature) and the human individual entailed a statement concerning how humans in this world should conduct themselves to achieve personal happiness, an account of the conditions under which human selfish passions would be controlled and behaviour encouraged to promote the development of rational judgment and personal action constituting Spinoza’s notion of personal salvation. As already noted, Spinoza set out his political doctrine employing the structure and terminology of Hobbes, although it cannot be assumed that their language, much less their views, were identical. Both rested their political theories on roughly similar prior notions of human nature and began their accounts with a description of the state of nature and the human condition in it, agreeing that mutual hostility and warfare were the norm here insofar as humans were motivated initially by selfish interests grounded in the passions. Further, both agreed that individuals in the state of nature are conditioned by natural law, the laws of nature. But 6 Ibid., 1.3–4, 263.

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unlike Hobbes, and for reasons logically consistent with his more fundamental metaphysical thesis, Spinoza denied that human individuals can ever transgress a law of nature. While professing a simple mechanical determinism for the whole of (material) reality, Hobbes had contended that individuals in the state of nature were free to violate the laws of nature even while he had asserted that there can be no injustice, no notions of right and wrong, in that state.7 For Spinoza, on the other hand, human freedom is fully consistent with being determined by natural law; and thus he rejected any talk about human ability to violate law, particularly a law of nature. For him humans are totally determined in their actions; they do what they do in a manner fully consonant with the laws of reality (nature), which determine and constrain reality in all its forms. Accordingly, violation of a natural law by any agent, the case in point being a human agent, is a contradiction in terms. Something of a summary of Spinoza’s metaphysics may be in order here to appreciate the meaning and significance of the peculiar if not seemingly self-contradictory notion of human acts being both determined and free. The basic principle of Spinozistic philosophy, as indeed of any system of thought as rigorously rationalistic and deductive as his, is that reality as a whole is intelligible, capable of being understood by the human reason and, thus, expressible in a series and sequence of rational statements, principles, and scientific laws fully integrated with one another and descriptive of the ways things are. Indeed, these laws express the way things must be in precisely the same way that the laws of mathematics and the physical sciences express how their subjects necessarily are and act. Spinoza presented the contents of his Ethics according to the method of geometry (more geometrico): “I fully admit that all things are determined to exist and act in a fixed and determinate way by universal laws of nature.”8 A direct consequence of this insistence on (human) rationality as the essential feature of reality was Spinoza’s elimination of any distinction between divinity and creation, between God and the universe, between the realms of faith and reason. For him God and reality are one, an identity; hence, what we perceive as things in this world, including ourselves, are simply facets or modes of the divine reality. Put differently, only God is real insofar as God is the only reality and reality is identical with God. Creatures, then, are only “parts” of God just as ideas are but aspects, or parts, of the mind in which they exist. 7 See supra, 132. 8 Benedict de Spinoza, “Treatise on Religion and Politics,” 4, Wernham, ed., Political Works, 67.

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This position, of course, totally rejects the basic contentions of both Judaism and Christianity and, indeed, of any doctrine that distinguishes between God and creatures as different kinds of substance. No wonder that Spinoza was expelled from his Jewish religious community when it became clear he was espousing such heretical and atheistic views. He was an atheist in the sense that he rejected the Judaeo-Christian notion of God as a transcendental and supernatural being infinitely distant from a created universe of which He was the efficient cause; he was an atheist insofar as he denied the existence of a God beyond nature as well as the distinction between faith and reason as disparate and antithetical methods of understanding the divine and “natural” portions of reality. Indeed, he denied the validity of faith as such by insisting that knowledge of God, which is humankind’s supreme good and goal, is acquired solely via knowledge of the things of nature: [E]verything in nature involves and expresses the concept of God … everything in nature involves and expresses the concept of God in proportion to its essence and perfections; so that the more we learn of things in nature, the greater and more perfect is the knowledge of God we acquire; or … the more we learn of things in nature the more perfect becomes our knowledge of God’s essence, which is the cause of all things. Hence all our knowledge, i.e. our supreme good, not only depends upon, but wholly consists in our knowledge of God.9

Further deductions from this initial position were equally devastating for the traditional religions of Judaism and Christianity. According to Spinoza, however difficult it is for individual humans to know God by reasoning correctly about reality – and most cannot hope to succeed here – the few who do discover the identity between God and nature (reality). Those who thus come to understand the structure of reality as a whole and the interconnectedness of its parts discover the necessary laws of reality (the laws of nature) and how the things within reality (God) act according to their natures. They come to recognize that the whole of nature acts in ways determined by what it is as a whole and by the character of the various things making up its totality. Each thing, and reality as a whole, cannot but behave according to their own essence – that is, the laws that express these. When humans exercise their rationality properly, then, they perceive reality “the way it is.” And humans, moreover, cannot but behave in a manner consistent with their own natures and their perception of how things are; they are determined by the very selfishness of their 9 Spinoza, “Treatise on Religion and Politics,” Wernham ed., Political Writings, 71.

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natures to act in what they perceive to be their own interests. Their actions are determined by the degree of their rational insight (or otherwise) into their own natures: they are determined to act on their perception, sound or not, of their own interests. When the perception is fully rational they cannot not do what they recognize as the “right” thing to do; when the perception is less than fully rational because determined by passion(s) not fully informed by rationality, they still act in a determined fashion, with passion(s) as the determining causal factor. In neither case is the behaviour free in the sense that the individual could do otherwise: the term “free” does not mean “could have done otherwise” but, rather, is reserved for human activity determined by full rationality, full knowledge of reality and its parts. Human actions, then, are literally determined rather than free: human freedom consists not in undetermined behaviour – all behaviour is determined by natural causes, and humans cannot behave in any way other than as they are determined by their nature. Human “salvation,” the human supreme good, consists in this knowledge. Individual human behaviour, moreover, as already indicated, is determined by either the passions or reason: individuals act “freely” when determined by the latter in that they are determined by the quality appropriate to their specific nature – rationality. Free actions are not undetermined; rather, they are the result of conscious applications of true (rational) knowledge. Rational beings cannot not act on what they understand to be true just as what is true cannot be otherwise. Spinoza’s basic doctrine might be described, then, as a philosophical theology, a description of God/reality (theology) in exclusively rational or philosophical terms. That such a position, despite Spinoza’s regular and frequent invocation of texts from both Old and New Testaments and use of standard terminology from both Jewish and Christian traditions (providence, salvation, divine law, etc.), would be adjudged an atheism should surprise no one. Nor should one be surprised at Hobbes’s assessment of this position as more daring than his own; the only question here might be whether Hobbes intended in this assessment to imply that he was as much an atheist as Spinoza but lacked the courage to be as forthright as his Dutch contemporary. A specific distinction between Hobbes and Spinoza as regards their respective political doctrines has to do with the meaning each gives to the term “law.” For his part, Spinoza defined the term in Chapter 4 of the Treatise on Religion and Politics when outlining his doctrine of divine law: The word “law” in the widest sense means a rule in accordance with which all individual things, or all things of the same species, or some of them, act in one

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and the same fixed and determinate way; and this is either by natural necessity or by the will of men … laws of the second type depend on the will of men; and for two reasons. I Since man is part of nature, he forms part of nature’s power. Everything, therefore, which follows from the necessity of human nature, i.e. from nature conceived in the determinate form of human nature, follows, albeit necessarily, from human power. Hence the institution of these laws may well be said to depend on the will of men, because they largely depend on the power of the human mind, yet, unlike necessary law as I have just defined it, need not be contained in any adequate conception of the human mind as perceiving things under the form of truth and falsity. II My second reason for asserting that these laws depend on the will of men is that we ought to define and explain things through proximate causes, since general considerations about necessity and causal connexion can give us very little help in forming and arranging our ideas about particular things. Besides, the actual system and interconnection of things, i.e. the way in which things are really ordered and interconnected, is quite unknown to us.10

Spinoza went on to restrict his use of the term “law” to the second type, that “depending on the will of men,” adding that “the application of the word ’law’ to natural things seems to be metaphorical, and the ordinary meaning of law is simply a command which men can either obey or disobey.”11 His intention here, however, was not so much to stress the conventional and coercive character of law as to insist on the fully natural and rational character of reality as a whole and, consequently, of its openness to being understood by humans capable of employing reason properly. He made this clear when he went on to list the features of “natural divine law”: 10 Ibid., 4, Wernham, ed., Political Works, 68–69. 11 Ibid., 69. Here Spinoza follows Marsilius of Padua in defining law exclusively in terms of command and coercion. His purpose is more far-reaching than that of Marsilius in this connection, however. What he seeks to do is to deny the propriety of speaking of God as a legislator and coercive authority on human behaviour. Again following the simple logic of his rationalism, his intention is to describe God exclusively in terms of intelligence and rational causality. The “laws” of God, divine law, then, are not laws in the strict sense of the term: they are simply descriptions of the nature of God and His ideas (created natures). They do not bind; they only describe necessarily. The fact that divine law as set out in the Scriptures is perceived to bind as from a divine legislator is to be explained on the grounds that Scripture offers an imaginative account appropriate to the limited rational abilities of its audience rather than an accurate intelligible account.

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it is universal, i.e. common to all men; for I have deduced it from human nature in general … it requires no belief in historical narratives of any kind [v.g. Scriptural accounts, ed.] … reflection on human nature is all that is needed to understand it … belief in historical narratives, however well-grounded, cannot give us knowledge of God, and hence cannot give us love for him either. For love of God arises from knowledge of him, and knowledge of him must be derived from common notions which are self validating and self-evident; hence it is quite untrue that belief in historical narratives is a necessary condition of our attaining our supreme good.12

And he went on further to deny that the proper nature of God allows Him to be conceived of as a legislator: “God’s will and understanding are in themselves really one and the same, and the distinction between them has no basis but our different ways of conceiving God’s understanding.”13 Spinoza’s account continued in a context that offered an imaginative rather than a rational account of the nature of human beings, with his description of human beings in the state of nature proceeding on two parallel paths: on the one hand he described human beings in terms of their nature as rationally understood, while on the other he explained how real individuals behave, motivated in the first instance by self-interest focused through the prism of the passions insofar as the actual condition of individual humans in the beginning has this basis for their judgments and actions. Withal, of course, their actions are all determined; they always act consistenly with their own assessments, rational or otherwise, of their selfish interests and cannot do otherwise. Accordingly, everything they do is perfectly appropriate for them; there are no limitations on their individual behaviour. On this point Spinoza is generally at one with Hobbes, although their reasoning was different and Spinoza was much more thoroughgoing and consistent in his argumentation. Where Hobbes indirectly qualified his rhetoric about there being no such thing as right and wrong, with nothing forbidden in the state of nature, by speaking of laws in the state of nature that limit human behaviour in terms of how individuals should act, Spinoza rejected any limitation on human action other than the power to perform it. For him moral or ethical appropriateness never arose as a limiting condition. Insofar as humans always act in ways determined by their own perception of selfish interests and consistent with 12 Spinoza, “Treatise on Religion and Politics,” 4, Wernham ed., Political Writings, 75. 13 Ibid., 77.

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their power, there could never be any question of anyone doing anything “wrong.” They do what they are determined to do even when their behaviour is foolish, mad, or insane: [T]here is no doubt that nature in the absolute sense has a perfect right to do everything in its power, i.e. that the right of nature extends as far as its power; the power of nature being nothing but the power of God, who has a perfect right to do everything … since the supreme law of nature is that everything does its utmost to preserve its own condition, and this without regard to anything but itself, everything has a perfect right to do this … as long as men are regarded as living under the sway of nature alone, he who is still blind to reason, or has still to acquire a virtuous disposition, lives wholly by the laws of appetite with as perfect a right as he who guides his life by the laws of reason.14

Their behaviour could be modified, it is true, by them being induced to make different assessments of their selfish interests. But individuals can never be described as doing anything other than what they see as their self-interest; they must be acknowledged as doing whatever they do by right. Anything, then, that an individual who is considered as subject only to nature judges to be useful to himself – either through the guidance of sound reason or through the impulse of passion – he has a perfect natural right to desire and indeed to appropriate by any means in his power – by force, fraud, entreaty, or however he finds it easiest; and hence a perfect natural right to regard as an enemy anyone who wishes to prevent him from satisfying his desire.15

Moving from this description of the state of nature, Spinoza agreed with Hobbes and other political thinkers that individuals remove themselves from it out of a concern for their own well-being: [E]veryone desires to enjoy the maximum safety and security (which is impossible as long as each may do anything he pleases, and reason is allowed no more influence than hatred and anger); for everyone lives a life of anxiety when surrounded by hostility, hatred, anger, and treachery, and so does his utmost to escape such things … They therefore arranged that the right to do everything which each had by nature should be held collectively, and should be determined no longer by the force and appetite of each but by the power and

14 Ibid., 16, Wernham, ed., Political Works, 125; cf. “Treatise on Politics,” 2.2– 3, Wernham ed., Political Works, 267. 15 Ibid., 127.

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will of all together … each must have firmly resolved and contracted to direct everything by the dictates of reason alone. 16

Spinoza remained consistently pessimistic if not cynical, however, about human behaviour, even once within the bounds of a political society, although his emphasis here was probably designed to underline the deterministic character of his position rather than any misanthropic attitude: [I]t is a universal law of human nature that no one forgoes anything he thinks good save from hope of a greater good or fear of a greater loss … this law is graven so deeply upon human nature that it must be set among the eternal truths which everyone must know; yet its necessary consequence is that no one will promise to surrender his right to do everything except with intent to deceive, and no one at all will keep promises save from fear of a greater evil or hope of a greater good.17

Accordingly, “a contract can have no binding force but utility [and] it is foolish to require a man to keep faith with you forever unless you also try to ensure that breach of the contract will bring him more loss than gain.”18 The sovereign to which individuals transfer their power, moreover, must have the right to coerce members of the polity, a right enjoyed, however, only to the extent that the sovereign “preserves the power to do everything he wishes … it [the sovereign] alone will have a perfect natural right to do everything, i.e. sovereign power, and everyone will be bound to obey it either in freedom of spirit or from fear of the supreme penalty.”19 Spinoza went on to indicate that the best form of sovereignty is a democratic one, arguing that “there is less danger of foolish decrees in a democracy: first because it is practically impossible for the majority in an assembly, especially in a large assembly, to agree upon a piece of folly; and second because of the basis and aim of democracy which is precisely to avoid the follies of appetites.”20 And he offered a “practical” qualifier to the language of “absolute right” attributed to the sovereign: “nobody can, or need, transfer everything to the sovereign … no one will ever be able to transfer his power and right to another so completely as to cease to be a man.”21 16 Spinoza, “Treatise on Religion and Politics,” 16, Wernham, ed., Political Works, 129. 17 Ibid., 130–31. 18 Ibid., 133. 19 Ibid. 20 Ibid. 21 Spinoza, “Treatise of Religion and Politics,” 17, Wernham, ed., Political Works, 149; cf. “Treatise on Politics,” 7.25, ibid., 317.

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Somewhat surprisingly, then, he agreed with Hobbes, Bodin, and Grotius on the issue of the sovereign’s “full right to control religion.” His argument was a familiar one: sovereignty is an indivisible unity, and to afford the right of personal judgment in matters of religion entailed a diminution of sovereign authority. According to Spinoza, “to deny that the right to control religion belongs to the sovereign [divides] the sovereign power … religion acquires the force of law only by the will of those who have the right to command.”22 He went on immediately, however, to stipulate that he was “speaking expressly of external acts of piety and worship; not of inward piety and the inward worship of God, i.e. of the means by which the mind is inwardly led to worship God in purity of spirit.”23 Apparently Spinoza considered the distinction between external and internal forms of religious practice sufficient to protect the rights and consciences of religious dissenters. He seemed equally sanguine about distinguishing between overt action and interior acts (of thought, which he extended to include external speech acts) when he insisted that “in a free state everyone may think what he pleases, and say what he thinks.”24 Spinoza’s argument here, implausibly naive though it seems, was that, since people cannot surrender the right to think for themselves, it is unrealistic to expect that they can be made to simply parrot the views of the sovereign. Hence, they should not be prevented from expressing their judgments: “for even men of great experience cannot hold their tongues.”25 He accepted that speech could be treasonable but did not clarify exactly where to draw the line between treasonable and otherwise legitimate free speech: [W]hile a subject necessarily violates his sovereign’s right by acting contrary to its decree, there is no violation whatever in his thinking and judging, and therefore also saying, that the decree is ill-advised; as long as he does no more than express or communicate his opinion, and only defends it out of honest rational conviction, and not out of anger, hatred, or a desire to introduce any change in the state on his own authority … he must leave the determination of all actions to the sovereign, and do nothing contrary to its decree, even though the actions required are frequently in conflict with what he thinks, and declares, to be good.26 22 Spinoza, “Treatise on Religion and Politics,” 19, Wernham, ed., Political Works, 205. 23 Ibid. 24 Spinoza, “Treatise on Religion and Politics,” 20, Wernham, ed., Political Works, 227. 25 Ibid., 229. 26 Spinoza, “Treatise on Religion and Politics,” in Wernham ed., Spinoza, Political Works, 231.

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j ea n - j ac qu e s ro us s e au For today’s reader, as for his contemporary reading public (surprisingly large in his own day in comparison with those familiar at first hand with Hobbes’s Leviathan or Locke’s Two Treatises, for example), Rousseau’s political writings by turns appall, exalt, and baffle. That they have produced all these effects should come as no surprise given Rousseau’s always single-minded purpose. For Rousseau, the self-taught literary genius, was above all a master stylist, and he sought always to shock and stimulate his readers into an awareness of what he persistently intended: a devastating critique of the very society and set of social conditions that sustained him and gave him so prominent (if ambivalent) a place. But however frequently misunderstood and misinterpreted, Rousseau’s thought is not difficult to comprehend in its essentials, even though it can appear almost incomprehensible and irritatingly opaque because of a predilection for rhetorical flourishes and the unremitting use of juxtaposition and paradox when in full literary flight. Who has not been both exhilarated and irritated by the brilliant if literally unclear formula-type dicta for which Rousseau has become famous: “Man is born free, and everywhere he is in chains”;27 “he [the individual] will be forced to be free”;28 “Rightly understood [the social contract entails] the total alienation of each associate with all his rights to the whole community.”29 As one modern interpreter has said: “Rousseau’s language [is] at once magnificent and misleading, which is typical of the Contrat social.”30 The novelty and uniqueness of Rousseau’s position lies in its method of expression as much as anything else, this and the fact that he brings into play elements that received no explicit attention from the great English social contractarians, Hobbes and Locke. Unlike these earlier social contractarians, with whom he has frequently been compared, Rousseau was consciously a polymath in bringing into his political thought features from what today we would call sociology, economics (political economy), and philosophy of history. His agenda thus was much broader than that of these predecessors. This can be accounted 27 Jean-Jacques Rousseau, “Social Contract,” in Rousseau’s Political Writings, ed. Alan Ritter and Julia Conaway Bondanella, tr. Julia Conaway Bondanella (New York: W.W. Norton, 1988), 1.1. I cite this edition where possible; it contains the Discourse on Inequality, the Discourse on Political Economy, and the Social Contract. 28 Rousseau, Social Contract, 1.7. 29 Ibid., 1.6. 30 Jacques Dumont, Essays on Individualism: Modern Ideology in Anthropological Perspective (Chicago: University of Chicago Press, 1986), 90.

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for by two factors: first, Rousseau’s own personality and personal history and, second, the political and social conditions of mid-eighteenthcentury France and the responses to it among the Encyclopedists and Enlightenment rationalists with whom Rousseau associated. The key to understanding Rousseau’s writings in all of this in particular, however, was his commitment to the social condition of equality. The single element in the Rousseauean ideological constellation around which all others circle is the notion of equality. Rousseau made it clear that his objections were to what he called “moral or political inequality [not “natural or physical,”] the kind which depends upon a kind of agreement and is established or at least authorized by the consent of men. [It] consists of the different privileges that some enjoy to the detriment of others, such as being more wealthy, more honored, more powerful than they, or even making themselves obeyed by them.”31 In this connection, however, he was not a radical “equalizer” seeking to place all citizens on the same social and economic level: With regard to equality, the word should not be understood to mean that the degree of power and wealth are absolutely the same, but that power should fall short of all violence and never be exercised except by virtue of rank and law, and that, with regard to wealth, no citizen should be rich enough to be able to buy another, and none poor enough to be forced to sell himself, which presupposes moderation in wealth and influence on the part of the upper classes, and moderation in avarice and covetousness on the part of the lower classes.32

Certainly no advocacy of a classless society here! Rousseau’s virtually life-long literary project of developing and presenting an adequate theory of polity was expressed in a conventional social contract model that addressed directly the issue of the proper relationship between sovereign political power and subject. However, his real purpose was more comprehensive: it was to advocate a form of society in which, given the necessary bipolar condition of ruler and subject, all individual subjects remained equal and equally free. As expressed in the Social Contract, his task was “to find a form of association that defends and protects the person and possessions of each associate with all the common strength, and by means of which each person, joining forces with all, nonetheless obeys only himself and remains as free as before. Such is the fundamental problem to which the social contract furnishes the solution.”33 31 Rousseau, Discourse on Inequality, 8–9. 32 Rousseau, Social Contract, 2.11, 116. 33 Ibid., 1.6.

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Thus, even while formulating the basic question underlying his political thought in the familiar terms of the relationship between sovereign and subject, a question whose answer must guarantee the original condition of freedom in which individuals found themselves in the state of nature, Rousseau was interested in much more than the retention of political freedom for the individual in a polity: his radically novel position was that a properly organized commonwealth must not only provide freedom for its citizens but must also eliminate inequality in both social and economic forms. The notion that the appropriate reform of society, by an appropriate emphasis on the original condition and virtue of equality, lay in political transformation had been advocated by Rousseau from his youth. He relates in the Confessions that he realized as early as 1743, when he was employed as a clerk in the French embassy in Venice, well before he expressed the view in print, “that everything was radically connected with politics, and that however one proceeded, no people would be other than the nature of government made it.”34 The structure of government, then, was for Rousseau the only means for realizing his views concerning a happy human existence.35 One way to appreciate this aspect of Rousseau’s doctrine is to examine it in the perspective of the historical sequence of his various writings on the topic, particularly the three Discourses, which predate his most mature political text, the Social Contract. The Discourse on the Sciences and the Arts (1750), for which he was awarded first prize in a competition sponsored by the Academy of Dijon and which brought him into the literary limelight among the French intelligentsia and Parisian salons, was 34 Rousseau, Les Confessions, ed. L. Martin-Chauffier (Paris: La Pléïade, 1933), Livre 9, 396; cf. Livre 7, 300–6; 318–20. 35 Some have argued that Rousseau assigned a higher value to liberty than to equality on the grounds that it is equality “whose task is to serve as a means to liberty.” Editor’s note, Ritter and Bondanella, Rousseau’s Political Writings, 116, note 7. I find it difficult to read the relevant text in this manner: “If we enquire into exactly what constitutes the greatest good of all, which should be the end of every system of legislation, we shall find that it comes down to these principal objectives, liberty and [sic] equality. Liberty, because all private dependence is only so much force taken away from the body of the state; equality, because liberty cannot continue to exist without it.” See Rousseau, Social Contract, 2.11, pp. 115–16. The last clause certainly seems to subordinate equality to liberty as means to end or condition to result; yet it can be argued that, conversely, so is liberty for all citizens a necessary condition for each of them to achieve Rousseau’s goal of equality. The relationship between freedom and equality seems more symbiotic than one of superior to inferior.

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not so much a direct response to the question the contest posed – “Has the progress of the arts and sciences contributed to the purification of morals?” (Rousseau’s formal answer was no!) – as it was a vigorous denunciation of the current condition of humans in society. Society as such, Rousseau contended, was a sham and even an obscenity. Humans in society seemed to live in harmony and at least relative tranquility; yet the mask of civility hid gross evils to which the individuals in society gave themselves over, unlike the primitive peoples of Sparta and Rome who knew a different and more wholesome existence.36 This theme was expressed in even more strident and radical terms in the Discourse on Inequality (1755), which Rousseau offered as an entry for that year’s Academy of Dijon’s essay competition whose question this time was: “What is the origin of inequality among men, and is it authorized by natural law?” However much the academy’s choice of subject must have indicated the topicality of the issue of social and economic inequalities, Rousseau’s response found no favour with the judges, who apparently read no more than a few pages before rejecting the work as unworthy of serious consideration. Its publication the same year, nonetheless, brought fame to Rousseau in both Europe and America, and recognition as one of the bright new thinkers of his day. It also brought him to the attention of political and religious authorities in both his native Geneva and adopted homeland of France, and it marked the beginnings of what was for the rest of his life an increasingly uneasy attitude among these authorities towards the author of a clearly sustained and widely accepted attack on the political and social status quo. It was also an attack on the popular Enlightenment views of the conventional European intellectuals who were beginning to lionize Rousseau. Probably the least well understood of Rousseau’s writings, the Discourse on Inequality contains many of his most striking remarks – remarks that have led to him being mistakenly considered an advocate of return to a natural primitivism personified by the “noble savage.” The picture he painted in this and later writings of the original or natural condition of human individuals was both totally attractive and totally mythical, as his methodology and purposes demanded. Deliberately and at great rhetorical length, he contrasted the conditions and life of the natural 36 Rousseau’s critique of contemporary society is also found in his other writings, especially The New Héloïse (1760) and Emile (1762). The latter, a treatise on education in novel form, was formally condemned by the Parlement of Paris and the Council of Geneva. The Genevan condemnation led Rousseau to renounce his citizenship in the city of his birth.

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human with those of individuals in society, expressing the contrast to the denigration of the latter: “To be and to appear became two completely different things [after the establishment of society].”37 Natural being and behaviour gave way in society to dissimulation and pretence, a theme already introduced in the earlier Discourse on the Arts and Sciences. The condition of nature is such that “savage man will not bend his neck to the yoke that civilized man carries without a murmur, and he prefers the stormiest liberty to tranquil subservience.”38 Furthermore, “Whence arise all those abuses, unless it be from that fatal inequality introduced among men by the difference of talents and the cheapening of virtue. This is the most evident effect of all our studies and the most dangerous of all their consequences”.39 Yet not for a moment did Rousseau intend this thought experiment, which made an invidious comparison between humans in the state of nature and individuals in society, to be taken as advocacy for a return to the earlier condition, any more than he intended it to be an accurate account of history: “Let us begin, therefore, by setting all the facts aside, for they have no bearing on the question.”40 Return to the state of nature was not to be the final form of Rousseau’s perfect polity recommended for human happiness, although so many superficial interpretations to this effect have been made that many despair of ever correcting the misinterpretation.41 37 Rousseau, Discourse on Inequality, 42. 38 Ibid., Discourse on the Sciences and the Arts, 47. Rousseau gave clear expression to his position in his correspondence: “As soon as I was in a condition to observe men, I watched them act and listened to them speak; then, observing that their actions did not resemble their words, I searched for the reason for this dissimilarity, and I discovered that since essence and appearance were, for them, two conditions as different as acting and speaking, this second difference was the cause of the other and had itself a cause which remained for me to seek. I found it in our social order which, in every detail contrary to nature which destroys nothing, constantly tyrannizes and constantly causes it to reclaim its rights.” See Rousseau, “Letter to Monseigneur de Beaumont.” 39 Rousseau, Discourse on Inequality, 246. 40 Ibid., 9. 41 “In reading the seductive imaginary descriptions that Rousseau provides for the infancy of the world, one might imagine that Rousseau decided, and invited us to decide, in favor of the condition of the savage. Nothing of the sort … the primitive condition, as Rousseau knows, has been lost – irrevocably lost. It is not, therefore, a question of seeing in it a norm, that is to say, a value which it would be necessary to attempt to realize or to rediscover” (Jean Starobinski, “The Political Thought of JeanJacques Rousseau,” in Ritter and Bondanella, Rousseau’s Political Writings, 223–24).

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Accepting the “accidents” that led humans to opt out of the state of nature by the social contract that was the origin and cause of politics, Rousseau’s intention was to lay out in abstract and general terms the ground rules for how best to relate individuals as members of a commonwealth to the authority of that state so as to maximize the freedom that was theirs in the original condition of nature. And, as already noted, on this score the critical issue had to do not with the dissolution of society as such and a corresponding return to the condition of the noble savage but, rather, with society’s transformation so as to eliminate its present corruption, deceits, and manifold evils, all of which were traceable, in one way or another, to inequality. Rousseau sought to reestablish the original condition of individuals as free even while they remained citizens of a sovereign state: the essential in achieving this, in his view, was to substitute social and economic equality for the present corruption, which produced manifest forms of inequality. The Rousseauean description of the idyllic state of nature, then, is not of a condition to which Rousseau would have human individuals return; rather, it is a statement outlining features that ought, as far as possible, to be incorporated into a real but transformed society: Having placed the definition of man in nature at the lowest level, Rousseau will attribute to the “man of man” [i.e., humans transformed by the conventional agreements that mark their life in society] the artificial and indefinitely perfectible man, all that which is not included in the state of nature. The work of man, reflection, human institutions, family, and patriarchal life; human inventions, property and, above all else, society and civil order.42

This transformed polity will reflect a relationship between sovereign and governed wherein each individual citizen retains the freedom and equality of a human in the state of nature, while the evils and encrustations humans have allowed themselves to be afflicted with when they formed existing societies will be removed under a proper form of mutual agreement, or contract, among and with themselves, according to which the people are both sovereign and subject, both governor and governed. We would say today that the ideal Rousseau was advocating was a form of government under which people govern themselves. This statement would have been too bland and insufficiently evocative for Rousseau, however; he preferred to express himself in the conventional political language of his day, sanctioned by several centuries of use, employing the language of sovereign 42 Starobinski, “Political Thought of Rousseau,” in Ritter and Bondanella, Rousseau’s Political Writings, 225.

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and subject in which, following particularly Bodin and Grotius and with the English absolutist tinge given it by Hobbes, the two terms were expressed antithetically. They were viewed as polar opposites and were so defined for the specific purpose of addressing, theoretically and polemically, what these thinkers perceived as the major political crisis of their time: the political disunity and instability that were the aftermath of the Protestant Reformation – instability that had led to the outbreak of civil conflicts and the production of a wave of writings and publicist tracts that presumed to justify revolt against established authority. Rousseau aimed, moreover, to describe a social rather than merely a political revolution; and in this he called up a form of advocacy whose origins could be located more in the writings of the English Levellers like Lilburne than in the more conventional social contractarianism of Hobbes and Locke.43 It is an open question, of course, whether the former can be achieved without the latter; and since the answer in any instant case depends on the variables of history and current circumstances, an adequate answer entails a careful and comprehensive examination of the relevant empirical data, something normally possible (if at all) only post factum. In any case, unlike Locke, Rousseau was not preaching revolution, even though what he was saying was clearly revolutionary when taken at face value. What he was doing ideologically and in a deliberately provocative verbal form was to force the Bodinian dichotomy between sovereign and subject so as to collapse it completely. For Rousseau no such dichotomy existed: subjects themselves are the sovereign. Originally free, they simply cannot be made subordinate to a political sovereign; the people themselves are sovereign, and “the sovereign, formed solely by the private individuals who compose it, neither has nor can have any interest contrary to theirs.”44 As one commentator has put it, the Rousseauean position might be encapsulated in the remark attributed to Louis xvi – “l’état c’est moi” – if one were to substitute the people for the royal personage who is alleged to have made the remark.45 But as already indicated, Rousseau’s purpose in delineating the relationship, actually the identity, between sovereign and subject in language ordinarily classifiable as political thought was to achieve a transformation that would produce a social change, one that would 43 See supra, 141-62. 44 Rousseau, Social Contract, 1.7, p. 94. 45 R.A. Leigh, “Liberty and Authority in On Social Contract,” originally published as “Liberté et autorité dans le Contrat social,” in Jean-Jacques Rousseau et son oeuvre (Paris: Klincksieck, 1964); reproduced in translation by Alan Ritter in Ritter and Bondanella, Rousseau’s Political Writings, 235.

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have all citizens equal and, thus, require the elimination of social and economic inequalities. He addressed this issue formally in 1755, the same year he produced the Discourse on Inequality, in an article published in the fifth volume of Diderot’s Encyclopédie entitled Discourse on Political Economy. And it is here one finds, for the most part, the details of Rousseau’s thinking concerning the structural evils in society, the consequences of which forged the “chains” in which humans were said everywhere to find themselves. He set out his meaning of “political economy” at the beginning of the essay: “general or political economy . . . is derived from … the Greek words for house and law [and describes] the government of the great family which constitutes the state.”46 He went on: In the great family whose members are all naturally equal, political authority, being purely arbitrary [i.e., not predetermined by legal prescription, natural or divine]47 in the way it is established, can be founded only upon agreements, and the magistrate can command others only by virtue of the laws … in the great family … the general administration is established only to ensure private property which is antecedent to it … in the great family … the wealth of the public treasury is only a means, often poorly understood, of maintaining private individuals in peace and prosperity … it is enough for the great family to maintain itself … any increase [in size and wealth] does it more harm than good.48

Rousseau then distinguished between “public economy … which I call government, and the supreme authority, which I call sovereignty, a distinction which lies in the fact that the one [the latter] has the right to legislate and in certain cases to obligate the very body of the nation, while the other has only executive power and can only obligate private individuals.”49 Here Rousseau seems to have limited the order of 46 Rousseau, Discourse on Political Economy, 58. 47 Rousseau rejected the notion that the specifics of any consensual agreement among humans about the structure of authority in their commonwealth must meet any prior conditions of nature – there were none, nor could there be since the state of nature was not that of a society. He did not intend here, however, any more than did Hobbes, the rhetoric of both notwithstanding, that no moral norms existed to be incorporated as conditions of the social contract. In this respect at least Rousseau followed the traditional natural law view that the conditions of positive law in a polity should reflect the original virtues of humans in the state of nature. On Hobbes see supra, 133. 48 Rousseau, Discourse on Political Economy, 59. 49 Ibid., 61.

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“political economy” to the executive branch of government as distinct from the legislative or law-making branch, a distinction easy enough to make in theory but somehow unrealistic as soon as one realizes that legislation is needed to bring about the social and economic reforms that top Rousseau’s real agenda for producing a proper commonwealth. He went back on this distinction later in the Discourse on Political Economy when he acknowledged that “taxes can only be legitimately established through the consent of the people or its representatives [as] has been generally recognized by all the philosophers and jurists,”50 with much of the last portion of this Discourse being devoted to a discussion of taxation. This was a task for government. Rousseau was careful to identify the classical threefold forms of polity as modes of government. Thus, while he accepted the legitimacy of a variety of types of government – democracy, aristocracy, monarchy, and virtually any mix of them – he maintained that sovereignty, supreme political authority, always existed at root in the people who themselves chose the specific form through which it was to be exercised. 51 The function of government or public economy is to apply the laws so as to bring about justice for all citizens: to insure both public liberty and governmental authority … to subjugate men in order to make them free, to use the property, the labor, even the lives of all its members in the service of the state without constraining them and without consulting them, to enchain their wills with their own consent, to make that consent more important than their refusal, and to force them to punish themselves when they do what they did not want to do. How can it be that they obey when no one commands, that they serve when there are no masters, and that they are much more free, in fact, because, under apparent subjugation, no one loses any of his liberty except what could be harmful to the liberty of others? These marvels are the handiwork of the law. It is this salutary tool of the will of all which reestablishes natural equality on a legal basis among men.52

The rhetoric of Rousseau’s position here and its apparent emphasis on the political features of the ruler/citizen relationship may obscure somewhat his intention to get on with a prescription for producing 50 Ibid., 81. 51 See Rousseau, Social Contract, 3.3–7; cf. infra, 216. 52 Rousseau, Discourse on Inequality, 64. Positions expressed in the enigmatic rhetoric of the Social Contract can also be seen in this earlier work; and for this reason the meaning of the more magisterial Social Contract can sometimes be clarified by looking at this Discourse.

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equality among all citizens through social and economic change. But the text of the Discourse on Political Economy itself corrects such an interpretation and provides some, though certainly inadequate, details concerning how the proper exercise of sovereignty should proceed. Repeating his theme that the function of government in applying the law is to achieve justice, he asserted: “What is most necessary and perhaps most difficult in government is strict integrity in doing justice to all, and, above all, in protecting the poor against the tyranny of the rich. The greatest harm has already been done, when there are poor people to defend and rich ones to keep in check.”53 And he went on immediately: “It is, therefore, one of the most important concerns of government to prevent [sic] extreme inequality of fortunes, not by taking wealth away from those who possess it but by depriving everyone of the means of accumulating it, and not by building poorhouses but by protecting citizens from becoming impoverished.”54 And proceeding in the same lofty if unrealistic and impractical tone, he listed present evils and suggested vaguely expressed alternatives: the evil of unequal distribution of population with overcrowding in some places (the Parisian slums, for example?) and underpopulation in others should give way to a relatively even distribution of citizenry across the territory of a state; the evil of “arts of pure pleasure and pure industry” should be replaced by “useful and difficult trades”; the evil of “commerce having displaced agriculture” should be reversed; the mismanagement of state funds that has brought about the need for tax collection must cease; the vice of venality expressed in having “esteem … reckoned in gold coins” and prostitution (“virtues themselves … sold for money”) must be stamped out. “These are the most tangible causes of extreme wealth and poverty.”55 This is surely a pitiable white paper-type statement for actual governmental policy makers and administrators, however much the richness of its rhetoric might have created concern among the French monarchy and nobility about the safety of their own prerogatives. Rousseau was similarly almost ludicrously unhelpful both to himself and to French governmental authorities when he reaffirmed that his position was not so much an advocacy for the redistribution of wealth as a program for preventing the social evils of inequality arising in the first place. It seems impossible to imagine that anything but a forceful policy of redistribution of wealth could possibly achieve the kind of social transformation he intended. 53 Rousseau, Discourse on Political Economy, 72. 54 Ibid. 55 Ibid.

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Moreover, Rousseau’s resigned comment that “such ills … [are] difficult to cure when they make themselves felt,” however well designed to relieve its author of charges of hopeless daydreaming as well, perhaps, as to enable him to escape the charge of fomenting rebellion, still won’t do. It is clear, nonetheless, that, unlike Locke, Rousseau did not see himself in a consciously revolutionary role. Apparently he was content, despite the more than occasional dose of vitriol in his description of the status quo, simply to pen cautionary lessons in moral criticism. Virtually the only practical suggestion Rousseau ever advanced for social reform was a general one favouring public education: “You will have everything, if you train citizens … [P]ublic education under the rules prescribed by the government and under the magistrate established by the sovereign is, therefore, one of the fundamental principles of popular or legitimate government.”56 Even here, however, he was pessimistic about achieving anything of lasting value.57 Rousseau also had some things to say in the Discourse on Political Economy about “providing for the public needs, i.e., the citizens’ subsistence.” This is “the third esential duty of government[,]” identified succinctly as “the administration of property … because property is the true foundation of civil society.”58 But again the extent and specificity of his suggestions are minimal. Other than repeating conventional general nostrums about the need for government to provide a climate wherein citizens can meet their material needs through “labor [which] is always necessary and never useless,”59 to manage and expend public funds, and to collect such taxes as have been consented to “by the assembly of the people or the estates of the country” in the manner determined by these consenting public bodies – except for these items and a stress on the general principle that as little taxation as possible ought to be imposed – he says nothing of substance.60 Rousseau also contented himself here with a renewed expression of pessimism about the likelihood of ever achieving the kind of government and society he extolled. It is obvious, nonetheless, that what he was espousing was quite unlike any existing European state: the Rousseauean state that 56 Rousseau, Discourse on Political Economy, 73. 57 Rousseau’s most sustained statement on the benefits of public education can be found in The New Héloïse. 58 Rousseau, Discourse on Political Economy, 75. 59 Ibid. 60 Rousseau, Discourse on Political Economy, 80–83. His position on taxes in the Social Contract was much more radical: there he recommended foregoing taxation entirely in favour of enforced labour and contributions in kind.

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was to emerge from a social contract involving the free consent of all citizens to govern themselves by laws they themselves would approve was a polity largely rural in character, populated by austere, hardworking and patriotic citizens, the simplicity and austerity of which was an almost complete throwback to the heavily idealized humanist conception of the early Roman republic, and even to Plato’s original republic described by Polus as “fit only for pigs.”61 Rousseau’s Social Contract (1762) was the fourth presentation of his political thought in essay form, and it is the most systematic and comprehensive statement of how a state should be established, organized, and operated. He described this work as “a little treatise … extracted from a more extensive work [abandoned before completion],”62 making it clear from the beginning that his intention was to set out a realistic design for a polity “taking men as they are and laws as they can be. I shall always strive to reconcile what right permits with what interest prescribes, so that justice and utility may not be divided.”63 The text proper begins, as already noted, with the ringing declaration that “man is born free and everywhere he is in chains,” and it proceeds directly to assert that society is an artificial or conventional rather than a natural institution: “the social order … [is] a sacred right which serves as the basis of all the others … [a] right not derived from nature [but] founded upon agreements.”64 Thoroughly familiar with current political theorizing, and using Grotius as a stalking horse while also specifically rejecting the views of Filmer and Hobbes concerning the absolute character of political authority, Rousseau apparently went to some pains to reject the traditional natural law doctrine of the Spanish neo-Thomists, who spoke of two contracts in the formation of political society, the first whereby individuals freely consented to form a society and the second marking the delegation of political authority to a specific sovereign (one or more individuals), this latter contract being the one that established a polity.65 “A people, says Grotius, can give itself a king. According to Grotius, a people is therefore a people before giving itself a king … 61 Plato, Republic, 372D. For all that, however, the challenge the ruling classes of contemporary Europe would have seen in Rousseau’s published critique can scarcely be overestimated. They knew well enough the obscene gap between their lifestyle and that of their “co-citizen” urban and rural poor. 62 Rousseau, Social Contract, Foreword, 85. 63 Ibid., 1, 85. 64 Ibid., 1.1, 85–86. 65 See supra, 192.

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therefore … it would be good to examine the act by which a people becomes a people, for … it is the true foundation of society.” 66 In other words, while not explicitly denying that the people could bind themselves to be subjects in an aristocracy or monarchy, Rousseau at first glance collapses the two contracts into the first (original) one in the same way that both Hobbes and Locke had done earlier.67 Furthermore, along with Locke, he concluded that the people, therefore, were ab initio in complete control of whatever sovereignty came into being through their free and mutual agreement. Moreover, he went a step further than Locke’s direct advocacy of a government of the people by the people. Rousseau appeared to give an affirmative answer to the question of whether the people’s original contract to enter society seemed to entail a preference for democracy over either aristocracy or monarchy. Suárez had asked this question some two centuries earlier, to be sure, answering in the negative,68 while Locke never raised the issue at all. Knowingly or not (probably not), Rousseau followed Suárez here while repeating the standard social contract language concerning the origin of a polity: I assume men to have reached the point at which the obstacles to their preservation in the state of nature have a resistance greater than the forces each individual can use to maintain himself in that state. At this point, that primitive state could no longer subsist, and the human species would perish if it did not change its way of living.69 [Accordingly, individuals freely consent] to find a form of association that defends and protects the persons and possessions of each associate with all the common strength, and by means of which each person, joining forces with all, nevertheless obeys only himself and remains as free as before. Such is the fundamental problem to which the social contract furnishes the solution [and whose clauses] rightly understood … can all be reduced to one alone, namely, the total alienation of each associate with all his rights to the whole community.70

Rousseau’s language here – “the total alienation” – has led to charges that he effectively advocated total subordination of the citizen to the state, something actually the reverse of his own intentions, as can be seen clearly from his earlier remarks on slavery: “To renounce one’s liberty is 66 67 68 69 70

Rousseau, Social Contract, 1.5, 91. See supra, 137, 182-83. Suárez, Defensio, 3.4.1. Cf. Monahan, From Duties towards Rights, 179–80. Rousseau, Social Contract, 1.6, 92. Ibid.

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to renounce one’s humanity, the rights of humanity and even its duties … such a renunciation is incompatible with man’s nature, and to strip him of all freedom of will is to strip his actions of all morality.”71 As has been said, then, he proceeded to describe the social contract in the by now conventional terms of the Bodinian conception of sovereignty but overlaid with the social contractarian mode of discourse à la Hobbes describing the agreement between ruler and people. However, as again has already been mentioned, he figuratively and rhetorically squared the circle by identifying sovereign and people, ruler and subjects, as did Locke, who, however, did not use the sovereignty mode of discourse. Under the Rousseauean social contract citizens agreed among themselves that they should rule themselves: “[T]the act of association includes a reciprocal commitment between the public and the private individuals composing it … each individual, contracting, so to speak, with himself [so as to find] himself committed in two ways: namely, towards private individuals as a member of the sovereign, and towards the sovereign as a member [i.e. citizen] of the state.”72 For Rousseau, given the identity between sovereign authority and the community or collectivity of consenting individuals who constitute it, both the verbal and any real distinction between ruler and subject simply dissolves. There is no such political reality as “being in subjection” to political authority; to be in subjection, to be a subject rather than a citizen, was, for Rousseau, a contradiction in terms. There are no “subjects” in a genuine political society; though citizens have real obligations within a political society, they are “just as free as before” insofar as these obligations are to themselves and are self-imposed. Furthermore, underscoring again the motif of necessary equality among the individual members of society, “the fundamental pact … substitutes a moral and legitimate equality for whatever physical equality nature had been able to impose among men … they all become equal through agreements and law.”73 At this point in the Social Contract Rousseau introduced the concept of “general will” he had employed earlier in the Discourse on Political 71 Rousseau, Social Contract, 1.4, 89. For an interpretation of Rousseau as a totalitarian democrat, see J.L. Talmon, The Origins of Totalitarian Democracy (London: 1952), 39,47; for a spirited response, see R.A. Leigh, “Liberté et autorité dans le Contrat social, in Jean- Jacques Rousseau et son oeuvre (Paris: Klincksieck, 1964), translated by Alan Ritter as “Liberty and Authority in On Social Contract,” in Ritter and Bondanella, Rousseau’s Political Writings, 233–38. 72 Rousseau, Social Contract, 1.7, 93–94. 73 Ibid., 1.9, 98.

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Economy,74 a notion that has proven a constant stumbling block in interpreting his political doctrine: “The general will alone can direct the forces of the state in accordance with the end for which it was instituted … sovereignty, being nothing more than the exercise of the general will, can never be alienated … the sovereign, which is merely a collective being, can only be represented by itself; power can be transferred but not will.”75 The term “general will,” coined by Rousseau, identified the locus of political authority according to the Bodinian meaning of sovereignty, and it specified it as the collective power of all the individuals constituting the polity. Rousseau employed the term “will” in juxtaposition to “reason” to highlight the age-old contrast between freedom and law: law stems from the order of reason or nature, while freedom is rooted in the faculty of will as expressed in human action. Accordingly, Rousseau intended to convey by the term “general will” the sense in which the people as a whole, the collectivity brought into being by the sum of their individually willed acts of consent to come together in a polity and produce an entity that also can be said to have a will, has a “general” will that acts freely and determines the well-being of the whole of which it is a faculty or power. Nothing rules or limits it because it is a sovereign power, with sovereignty by definition transcending limitations in its own sphere. The rhetorical quaintness of the terminology of general will aside, Rousseau’s position is reasonably clear and coherent. Problems arise, however, from his having pushed the rhetoric further when raising the issue of whether the general will could ever be in error. The classical distinction among good forms of government had listed three models – monarchy, aristocracy, and democracy – but the prevailing mode of political discourse throughout the middle ages and into the early modern period expressed itself largely in terms of the monarchical form and addressed the more particular issue of how to justify and regulate the exercise of monarchical power. Indeed, within the immediate context of conventional political theorizing in the seventeenth and eighteenth centuries, particularly as regards the civil disorders and outbreaks of civil and colonial warfare stirred up by religious controversies following on the Reformation, the questio classica had become the right of revolt against a sovereign monarch. And supporters of absolute monarchy, like Bodin, Grotius, and Hobbes, explicitly employed the notion of sovereignty literally to rule out a right of revolt. Conversely, of course, supporters of a right of revolt denied the legitimacy of absolute authority by 74 Rousseau, Discourse on Political Economy, 61–62. 75 Rousseau, Social Contract, 2.1, 98.

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locating sovereign authority in the people. The dichotomy between these two functioning views, the absolutist monarchical position and the sovereignty of the people alternative, was usually expressed in terms of whether the ruler could ever be said to exercise authority badly, tyrannically. Advocates of absolute monarchy responded with a flat no, always qualified away to some extent under the weight of challenges from both logic and history to this simple-minded view, the first line of argument being the assertion that the monarch derived his authority directly from God so that the divinity was somehow the validator of the ruler’s acts irrespective of his subjects’ perception of their worth. For those who spoke for the sovereignty of the people, on the other hand, the issue of how a ruler who exercised sovereignty tyrannically could be displaced was conceptually easier: the people, in whom sovereignty in some sense had always resided, could simply blow the whistle on any ruler turned tyrant and legitimately do whatever was necessary to remove and replace him. Both views, it can be seen then, invoked the same model of monarchical sovereignty even while differing on the legitimacy of revolt. For Rousseau, on the other hand, the locus of the legitimacy of revolt lay at the level of government, not sovereignty; and his immediate concern was to argue the legitimacy of the exercise of sovereignty, by the people, through the general will. Accordingly, when he asked whether the general will can err, the issue was not what to do if and when a monarch became a tyrant but what to do if the people were to act tyrannically. Indeed, he expressed the issue even more dramatically: was it even possible for the people to behave tyrannically towards themselves?76 And again caught up in the rhetorical sound of his own voice he gave a literally unequivocal negative answer: “The general will is always in the right and always tends towards the public utility.”77 Something of a qualification followed immediately, as might be expected, but without its meaning being very clear: “It does not follow that the decisions of the people are always equally correct … the people is never corrupted but it is often deceived, and it is only then that it appears to will what is bad.”78 The qualification does little to clarify, even though it does acknowledge what no one, not even Rousseau, was prepared to deny: a group decision as such provides no more automatic a guarantee of truth and validity than does that of any single individual. The flat assertion that the general will cannot err, then, is false on its face. So Rousseau must have had something in mind other than this 76 Ibid., 2.3, 100–01. 77 Ibid., 100. 78 Ibid.

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simple-minded, unwarranted declamatory statement. His view that the general will cannot err was either a stipulative definition or an excess of rhetorical fervour or both. No form of argumentation can establish logically that majority decisions are always correct; hence such an assertion can only stand, if it can stand at all, as a kind of definitional major premise that is intuitively self-evident independent of any prior argumentation.79 The balance of Rousseau’s argument in Social Contract is devoted to explaining the limitations appropriately to be placed on sovereignty from the side of the individual rights of the people as citizens, who are “always free to change its laws, even the best ones.”80 It might be noted, by way of an addendum to our treatment of Rousseau, that this presentation of his political views is drawn almost exclusively from his political treatises, making no explicit reference to his more “practical” writings, such as the unfinished Constitutional Project for Corsica (1765) or his Considerations on the Government of Poland (1772) or his novels. It should be pointed out in this latter connection, however, that similar views are presented in Emile, whose first sentence sets out the issue that was to preoccupy Rousseau in all his thought: “Nature has created man to be happy and good, but society depraves him and makes him miserable.”81 Indeed, “Emile makes a case for natural rights on compassionate grounds.”82 79 A recent challenge to Rousseau’s position on the inerrancy of the general will is Robert Paul Wolff, In Defense of Anarchism (New York: Harper and Row, 1971), reproduced in Ritter and Bondanella, Rousseau’s Political Writings, 275–81. Wolff’s criticism, which he attributed to “error” and “confusion” on Rousseau’s part, was that Rousseau did not adequately distinguish between an assembly that attempts to aim at the general good and one that actually succeeds, the confusion between trying to achieve the general good and succeeding (279). In my view it is a mistake to charge Rousseau with failure to recognize this distinction. Rousseau never intended, or thought he had, to prove that the general will cannot err. This was a given for him, just as it was a given (or starting point) that human individuals are free and equal. There may be something of a relativistic element present in his position as well: a decision by the collective whole acting according to their natural and voluntary condition leads them tout simple to do what is best for them, at least according to the kind of deductive argumentation Rousseau was employing at this point, even though this judgment fails to meet any “absolute” or rational criteria. 80 Rousseau, Social Contract, 2.12, 117. 81 Rousseau, Emile, tr. Allan Bloom (New York: New York Books, 1979), 7. 82 An anonymous comment by a reviewer of this manuscript.

Conclusion

concluding a manuscript of this magnitude, let alone attempting the same for a trilogy of works spanning a period of more than six and a half centuries, is formidable to the point of being problematic. Withal, however, the attempt should be made. The issue of continuity across so lengthy a historical period concerning the concepts of popular consent – the people’s basic rights in any legitimate polity – and the corresponding concept of limit to legitimate authority can be observed across the entire period, even though the new and modern late sixteenth-century idea of sovereignty, seen first in Bodin and later in Grotius, Pufendorf, and Hobbes, emphasizes a notion that tends to obscure if not negate the earlier medieval constitutionalist frame of reference. Tracing the elements of continuity from the earlier centuries examined in the two earlier volumes has to be combined, then, with an emphasis on the modern features of seventeenth- and eighteenth-century Western political thinkers featured here – an interpretive task not without difficulties, especially if one is to provide proper emphasis to the new and significant insights of these later thinkers. As well, too, one should stress the important additions to advocacy of the widening circle of rights that they developed side by side with the emerging anti-constitutionalist mood of the principal protagonists of modern “scientific” political thinking; the insightful expansion of personal rights in the area of legitimate resistance to perceived tyranny based on the concept of individual consent to political authority; and the radical though flawed notion of religious tolerance developed by John Locke. There was, too, the remarkable set of views on individual social and economic rights of the English Diggers and Levellers, views receiving little resonance at the time of their articulation but that were afforded considerable emphasis a century later by Rousseau and other mid-eighteenth-century French precursors to the French Revolution.

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A final note concerning the limited and selective character of this narrative. Like its two predecessors the present single volume is not, nor could it have been, a comprehensive and detailed history of several centuries of Western thought. It is, rather, a distillation of the thinking of the most significant political writings of the period designed to exhibit the development of many of the personal rights features integral to a rational political philosophy. These writings were by no means perfect in this respect, of course, nor are they defensible in all the forms of their expression. After all, the views of the individual writers presented here certainly by no means all agreed. Yet individually and collectively they illustrate both positively and negatively many of the essential building blocks for an adequate political theory.

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Index

Note: Bold indicates page references to passages in which the name or topic at issue is the continuing main subject of discussion. absolutism and absolute monarchy, 27, 28, 29, 33, 48, 60, 74, 98, 101, 102, 107, 121, 134, 140, 141, 165, 166, 167, 209 Althusius, Johannes, 5, 8, 12, 21, 49– 57, 60, 191 Aquinas, St Thomas, 55, 77, 89, 90, 92, 105. See also “Spanish neoscholastics” Aristotle (and Aristotelian), 8, 44, 49, 57, 58, 65, 67, 68, 72, 78, 83, 86, 92, 95, 100, 101, 111, 119, 125, 127, 128, 130, 138, 169, 180 atheism, 140, 190. 192–3, 195–6; charge against Hobbes, 140, 193; charge against Spinoza, 192–3, 195– 6; deemed intolerable by Locke, 190 Augustine, St, 6, 52, 54, 87 Austin, John, 44, 45, 49 Bellay, Guillaume du, 17 Bellay, Jean du, 17 Bienassis, Jacques, 19–20 Bodin, Jean, 5, 6, 8, 10, 12, 21–48, 49, 53, 54, 57, 60, 69, 74, 99, 100, 104,

107, 120, 136, 137, 138, 146, 169, 191, 202, 209, 216, 217, 221 Calvin (and Calvinist), 6, 15, 16, 20, 27, 36, 38, 40, 41, 48, 51, 57, 64, 71, 81, 87, 187 Castellio, Sebastian, 20–1, 33–4 Catholicism, Roman, 4, 15, 16, 18, 19, 20, 22, 23, 24, 27, 30, 64, 72, 81, 87, 107, 166, 190 Cicero, 39, 70 coercion, 6, 93, 94, 131, 134 Coke, Sir Edward, 25 Commonwealth rather than “kingly government” (Winstanley), 153–4 consent (to political authority), 3, 7, 52, 78, 105, 163, 171, 211, 221 contract, social. See social contract Diggers, 9, 108, 141–54 duties, 65, 88, 94, 135 Erasmus (and Erasmian), 15, 18 Grotius, Hugo, 6, 8, 10, 11, 12, 42, 57–78, 79, 83, 85, 92, 97, 99, 100, 103, 104, 105, 107, 108, 109, 113,

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Index

114, 115, 116, 119, 120, 121, 136, 137, 138, 163, 166, 169, 191, 209, 214, 217, 221 Haillan, Bernard du Girard, Seigneur du, 30, 32 Hobbes, Thomas, 6, 8, 9, 190, 11, 12, 31, 42, 43, 49, 69, 74, 78, 83, 85, 87, 89, 90, 93, 94, 99, 100, 103, 104, 105, 106, 107, 108, 109, 118, 119, 121–41, 165, 166, 167, 169, 172, 180, 181, 183, 191, 192, 193, 194, 195, 197, 199, 200, 202, 203, 209, 214, 215, 216, 217, 221 Huguenots, 16, 18, 22–4, 26–7, 30–3, 36, 38, 39–41, 44, 49, 57 humanism, 15, 38, 60, 64, 65, 70, 111 James I, King of England, 28, 75, 113 law, defined as commands of a sovereign, 45, 84, 134, 198 Levellers, 9, 118, 154–62, 209 L’Hopital, Michel de, 18–19, 21 Lilburne, John, 11, 155–6, 158, 159, 160, 161, 209 limit (on political authority), 3, 26, 34, 59, 78, 85, 102, 134, 162, 221 Locke, John, 7, 9, 10, 11, 12, 20, 21, 61, 63, 69, 72, 94, 95, 107, 151, 162–90, 203, 213, 215, 219, 221 Luther (and Lutheran), 6, 15, 16, 36, 38, 40, 81, 87, 187 Machiavelli, Niccolo, 8, 38, 44 Marsilius of Padua, 6, 45, 132 mixed forms of government, 31, 44, 46, 57, 101 Moulin, Charles du, 26, 27, 29, 30, 32, 35

natural law (including natural justice): various views of, 7, 35–6, 45, 53, 59, 63, 66, 68, 71, 76, 82, 83, 84, 85, 86, 87, 89, 91, 92, 105, 111, 112, 113, 114, 116, 117, 118, 126, 130, 132, 172, 175, 195; versus positive law, 7, 35, 44, 112, 113, 117, 132, 140, 173, 180, 206, 214; universal basis for in human nature, sociality, and sociability, 85, 91, 109, 110 Overton, Richard, 11, 135, 157 Parlement of Paris, 23, 25, 27–9, 32, 47, 48 Parliament versus King in England, 141, 143, 156, 165, 166, 169, 170, 179 Plato, 44, 117, 138, 214 Postel, Guillaume, 17–18 property, right to, 7, 37, 60, 68, 70, 72, 75, 110, 114, 115, 148, 150–1, 152, 153, 173–6, 178, 183 Protestant Reformation, Reformers, and post-Reformation thought, 5, 6, 9, 13, 15, 16, 17, 20, 21, 24, 27, 34, 39; unqualified subjection to political authority, 6, 21, 36, 39, 64, 97, 120, 187; on the other hand, resistance theory, 4, 14, 25, 27, 33, 38, 39–40, 41, 48, 53, 55, 57, 64, 75, 97, 105, 107, 125, 127, 138, 171 Pufendorf, Samuel, 6, 10, 12, 78–108, 109, 191, 221, 40, 53, 55, 64, 72, 97, 107, 120, 187, 188, 191 religious freedom, right to, 7, 170, 188, 202 resistance, right to: rejected, 34, 38, 39, 40, 42, 55, 76, 77, 99, 105, 137;

Index upheld, 55, 56, 75, 76, 77, 99, 100, 107, 162, 168, 170, 183, 185. See also under “Protestant Reformation, Reformers, post-reformation thought rights (natural), 4, 7, 9–10, 12, 59, 62, 65, 66, 67, 68, 71, 73, 74, 109, 110, 113, 130, 131, 132, 134, 135, 161, 193, 201, 219; alienation of rights, 73, 74, 91, 135, 167, 201, 203, 215; expanding to embrace social and economic features, 9–10. See also property, religious freedom, religious toleration, resistance Rousseau, Jean-Jacques, 12, 148, 183, 203–19 science, political theory as, 7, 8, 9, 12, 23, 31, 46, 49, 124, 125, 126, 128, 141 Selden, John, 7, 8, 12, 82, 89, 108, 109–21 self-enslavement, 93, 100, 173 Seyssel, Claude (and Seysellian), 25–7, 29, 32, 35, 38, 41 slavery, 73, 93, 100, 101, 151, 173 social contract, 68, 73–4, 92, 93, 96–7, 106, 119, 136, 137, 181–3, 185,

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200–201, 203, 208, 209, 215, 216; two-contract theory, 92, 96–7, 106, 137, 214–15 sociality (and sociability), basis for natural laws, 78, 91, 109, 110 sovereign and sovereignty, 7, 31, 33, 34, 37, 41, 42, 46, 49, 53, 59, 64, 74, 78, 81, 97, 98, 100, 101, 137, 167, 193, 201, 209, 211, 217, 221; the people as sovereign, 51, 209, 216, 218 Spanish neo-scholastics (neoThomists), 45, 54, 59, 60, 62, 63, 92, 103, 104, 105, 116, 127, 136, 214 Spinoza, Baruch (Benedict), 8, 12, 126, 191–202 Suarez, Francesco, 7, 50, 62, 66, 71, 72, 77, 92, 118, 136, 215 toleration, religious, 5, 13–21, 135–90 Vasquez, Gabriel, 54, 59, 62 Walwyn, William, 158 Winstanley, Gerrard, 145–54