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Tuck - 1987 - The 'Modern' Theory of Natural Law
Tuck - 1987 - The 'Modern' Theory of Natural Law
60
Poltica indiana, p. 114. On Selden's More clauJUm, see Richard Tuck, Natural Rights
Theories, pp. 86-7.
Poltica indiana, pp. 112-1 3.
An earlier version of this essay was read as a pape r at a conference on the Roman
Law held at the Warburg lnstitute and at the Social and Politica! Theory Seminar at
Cambridge. Iam grateful to those present, and in particular to John Dunn, Quentin
Skinner, Geoffrey Hawthorn and Istvan Hont, for their comments and
suggestions.
5
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' Johann Gottlieb Buhle, Geschicte der neuern Philosophie, III (Gttingen, 1802), p. 329;
Histoire de la philoJophie moderne, trans. A.]. L. Jourdan, III (Paris, 1816), p. 283.
4
Buhle, Geschicte, p. 332, Htoire, p. 285.
5
Buhle, GeJchicte, p. 328n, Htoire, p. 282n.
6
Alasdair Maclntyre, A Short HiJtory of EthicJ (London, 1967), p. 120. That is the sum
total of his discussion of Grotius; Pufendorf is not mentioned at all.
perhaps, more unusual. 7 The origins of this history lie in the late
seventeenth century, and it received a comprehensive exposition at
the very beginning of the eighteenth century. The first sketch of it is
to be found in the preface to the first edition of Pufendorf' s De iure
naturae et gentium itself, in 1672: in the preface, he described Grotius
as 'the first person to make our age value the study of naturallaw',
and observed that his successors were Hobbes (in whose work, despite many errors, there is 'much of infinite value') and Selden. 8
This sketch, like the rest of the work, carne under fierce attack in
the next six years, and in 1678 Pufendorf answered his critics and
provided a justification and expansion of this history, in a volume
entitled Specimen contoversiarum circa ius natura/e ipsi nuper motarum. Most
of the attacks on the De iure naturae et gentium had come from the pens
of German Protestants; foremost among them were two colleagues
of Pufendorf at Lund University in Sweden, Nikolaus Beckmann,
professor of Roman Law (who later converted to Catholicism) and
Josua Schwartz, professor of Theology. They were joined by
Friedrich Gesen, the Lutheran minister of Gardelegen near
Magdeburg, Valentin Velthem, professor ofTheology atJena, and
Valentin Alberti, professor of Theology at Leipzig. 9
Although these Lutheran worthies had a variety of elabora te arguments to make against Pufendorf, their central claim was that he was
in effect a Hobbesian, and that he had therefore departed from the
metaphysical and theological orthodoxy of the Protestant church.
To establish this, they seized on two distinctive features of
Pufendorf's theory. One was Pufendorf's argument that no human
action is in itself either good or bad: actions do not exhibit inherent
moral properties comparable to their physical properties, but
instead have their moral qualities 'inputed' to them by the application to them of a rule devised by some agent or group of agents.
His critics took this strong ethical anti-realism to be comparable to
Hobbes's anti-realism, and to be in direct conflict with the truths of
Aristotelianism(as indeed itwas). The second feature ofPufendorf's
ideas which disturbed the Lutherans was his claim that the principies
A good example of the commonplace character of this history in the eighteenth
century is provided by its incorporation in a characteristic work of the salons,
Alexandre Savrien's Htoire des phi/osophes modernes (3rd edn, Paris, 1773, II, PP
79ff. for Grotius).
Samuel Pufendorf, De iure naturae et gentium (Lund, 1672), sig. b4v ff.
A full discussion of this controversy is to be found in Fiammetta Palladini,
Discussioni seicentesche su Samuel Pufendorf(Bologna, 1978). Iam indebted to Istvan
Hont for my introduction to this invaluable work.
lU:)
of the law of nature can all be interpreted as means towards the end
of the preservation of 'society', as this too seemed to them to be
comparable to Hobbes's account of the laws of nature. Although
they recognised that this latter claim was one which had also been
made by Grotius, the Lutherans tended to argue that Grotius was
fundamentally orthodox by virtue ofhis denial of the former claim;
and both Velthem and Alberti in fact produced their own commentaries on Grotius to make this point.
The history which was implicit in these Lutheran critiques of
Pufendorf was in some ways closer to the post-Kantian one.
Velthem praised the 'prince of moralists' Aquinas and the 'father of
metaphysics' Surez, and saw Grotius as in some sense their
successor; Hobbes was outside this realist tradition, and there was a
fundamental break between his work and Grotius's. 10 To answer
these critiques, Pufendorf once again stressed his rival history,
which cut Grotius off from his predecessors and linked him both to
Hobbes and to Pufendorf himself. ln some ways this looks like a
scramble for the authority of Grotius, but there was no particular
reason why Pufendorf should have felt obliged to wrest it from his
opponents - he had after all been quite criticai of Grotius (and,
indeed, of Hobbes) in De iure naturae et gentium. Pufendorf's account
is more plausibly read as a genuine attempt to place himself in what
he took to be his theoretical context, and to cast doubt on his
opponents' understanding of recent intellectual history.
The first chapter of the Specimen is entitled 'The origin and
development of the study of natural law', and it starts from the
assertion that 'in fact, there was no one before Hugo Grotius who
accurately distinguished the laws of nature from positive law, and
put them in proper order'. 11 The New Testament contained the
foundations of the law of nature, but it could not be used as the
fundamental text in the study of the law, for it also contained much
that non-Christians would not accept- and the essence of the laws of
nature was that all men actually recognised their force. The classical
writers were also deficient; it is true that 'among the various sects of
ancient philosophy, the Stoics made some claims which, somewhat
emended, would apparently have been easily developed into a body
of natural jurisprudence; but they were neglected, and only the
10
Samuel Pufendorf, Specimen controversiarum circa jus natura/e tPsi nuper motarum
(Uppsala, 1678), p. 26. For the problem of which work ofVelthem's is quoted here,
se e Palladini, Dcussioni., p. 200, n. 3. 11 Pufendorf, Specimen, p. 1.
15
lbid., p. 8. 13 Ibid., p. 9.
' Accinx it porro sese GrotiuJ ad moliendum opus, in quo nulla priorum vestigia
ipsum regebant.' Jbid., p. 10 ~
17
lbtd., p. 9 . 16 Ibtd., p. 11; cf. also pp. 86-9 .
Ibrd., p. 169.
Samuel Pufend o rf, The Law of N ature and NationJ, ed. Jean Barbeyrac, trans. Basil
Kenn et (London, 1 749) p . 134.
To make these Dictates ofReason obtain the Power and Dignity ofLaws, it
is necessary to cal! in a much higher Principie to our Assistance. For altho'
the Usefulness and Expediency of them be clearly apparent, yet this bare
Consideration could never bring so strong a Tie on Mens Minds, but that
they would recede from these Rules, whenever a Man was pleas'd either to
neglect his own Advantage, or to pursue it by some different Means, which
he judg'd more proper, and more likely to succeed. Neither can the will of
any Person be so strongly bound by his own bare Resolution, as to hinder
him from acting quite contrary, whenever the Humour takes him.
This 'higher principie' upon which Pufendorf called was the will of
God; it was only because all men believed in a God who had power
over them, that they felt obliged to do something which they might
not otherwise choose to do. His criticism ofGrotius (and Hobbes) in
this areais forceful and perceptive. But the crucial point to stress at
the moment is that the criticism did not take him as far away from
Grotius and Hobbes as one might have expected, if one considered
only these foundational matters. Pufendorfbelieved that we determine what it is that God wills us to do, by considering what is in our
best, long-term interests: we know that God wishes us to be preserved,
and therefore we know that we are obliged to do whatever is
necessary for ou r preservation. W e need no beliefs which a rational
and self-controlled atheist could not also possess, in order to determine the content of the laws of nature; and Pufendorf always
emphasised that the content of the laws was the important issue, and
that there was no point to the kind of trivial propositions which his
Lutheran opponents believed to be foundational to a moral theory,
such as 'what is morally right is to be performed'. 20 As Pufendorf
said, the problem was to determine what was morally right; and his
answer to this question suggests that the Lutherans who accused
Pufendorf of a kind of Hobbism had seen a genuine and important
feature of his theory.
Having argued that Grotius represented a fundamental break with
all previous theories of naturallaw, Pufendorf went on to outline the
developments in the subject after 1625. The principal followers of
Grotius, Pufendorf argued, wereJohn Selden and Thomas Hobbes.
Both shared Grotius's basic approach, and in particular his hostility
to scholasticism; but both had grave deficiencies. Selden 'did not
deduce the law of nature from some principie whose force all nations
would recognise', but from a specifically jewish source, albeit one
supposedly promulgated to all mankind, namely the Praecepta
19
lbid., p. 141.
20
Ibid. , p. 12.
" Pufendorf, The Law of Nature and N ations, pp. 63, 67.
22
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Thus the two primary laws of nature, he asserted, were 'It sha/1 be
permissib/e to defend one's own /ife and to shun that which threatens to prove
injurious' and 'It sha/1 be permissib/e to acquire for onese/f and to retain those
things which are usefu/for life.' 'On this point the Stoics, Epicureans and
Peripatetics are in complete agreement, and apparently even the
Academics have entertained no doubt.' 33
As the last remark shows, Grotius presented these laws in what
would la ter be regarded as an 'eclectic' manner, as principies which ali
men would accept, and which all societies would acknowledge. ln
part, this involved a simple observation of human societies:
Grotius's contention was that no society had been or could be found
in which this moral principie was denied, though many other moral
principies, e.g., of the Aristotelian kind, were frequently disregarded.
The moral relativist had therefore jumped to too pessimistic a conclusion. Grotius argued the sarne about the next two laws of nature,
which he presented as secondary to the principie of selfpreservation, but equaliy universal- 'Let no one inflict injury upon bis
fe/low' and 'Let no one seize possession of that which has been taken into the
Possession of another.' 34 These bans on wanton injury of another human
being were also principies which no man or group of men would
deny, though they would at the sarne time concede that injury to
another in the cause of self-preservation might be justified (this is
the door which led fairly directly to Hobbes). Grotius's explanation
of why ali these laws were universal was essentially that they were
"
lbid., p. 8 .
another's Right: For the Design of Society is, that every one should
quietly enjoy his own, with the Help, and by the united Force of the
whole Community. ' 38 These are the two principies of De iure praedae,
self-preservation and the ban on wanton injury.
In the Prolegomena to De iure bel/i ac pacis, it should be said, Grotius
did emphasise more than he had clone in De iure praedae the positive
advantages of society and the universal human desire to live with his
feliows, and this led him to reverse his judgement on the quotation
from Horace he had endorsed in 1604/5; but he did so in a somewhat
qualified way. His new position is summed up in the foliowing
passage:
the Saying, not ofCarneades only, but of others, Interest, that Springofjustand
Right [Horace], if we speak accurately, is not true; for the Mother ofNatural
Law is human Nature itself, which, though even the Necessity of our
Circumstances should not require it, would of itself create in us a mutual
Desire of Society: . . . But to the Law of Nature Profit is annexed: For the
Author ofNature was pleased, that every Man in particular should be weak
ofhimself, and in Want of many Things necessary for living Commodiously,
to the End we might more eagerly affect Society. 39
The substantial continuity of Grotius's most powerful and
original idea (particularly in the body of his text), despi te a radical
change in his view of the laws' foundations, is a striking illustration
of the fact that foundational issues are not the most important ones
in this history. What is important is the continued attempt to
integrate the laws of nature into a system based on the principie of
self-preservation; beyond that, there was scope for a great deal of
disagreement (even, as we have just seen, within one person's own
inteliectual career) about how to interpret the system as a whole, and
how to explain the obligatory character of the laws. W e could draw a
rather strict analogy with contemporary natural science: Galilean
physics provided a new and integrated system, but left a substantial
opening for philosophical discussion about its metaphysical basis.
If a concern with Carneades, anda commitment to refute what he
had said by using the principie of self-preservation, are the leitmotivs
of the modem natural-law school, then both Pufendorf and Hobbes
do indeed amply qualify for membership. Pufendorf devoted two
sections of the chapter in which h e discussed the general character of
the law of nature to a discussion of Carneades's argument that
'there's no such Thing as natural Law, but that ali Law first arose
from the Convenience and the Profit of particular States', and he
38
36
J1
lbJd., p. 24.
39
Ibid., p.
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This looks very much as ifHobbes had in mind the sarne observation
of Carneades which Grotius also attacked, that ' either there is no
justice; o r, if there is such a thing, it is the greatest foolishness since
one will harm oneself while consulting the interests of other p~ople'
(au~ nu/Iam esse iustitiam; aut, si sit aliqua, summam esse stultitiam, quoniam
stbt noceret alienis commodis consulens). 4 2 Mersenne in fact recommended
Hobbes's. D e cive to Sorbiere as the ideal refutation of scepticism. 43
43
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foundation, while the modern natural lawyers saw clearly that this
was impossible: in their eyes, the sceptical critique of such ethical
theories was overwhelming.
The sympathy which these writers retained for many features of
humanist and even sceptical moral theories comes out in many
important aspects of their work. lt is a familiar fact, for example,
that the seventeenth-century natural-law writers stressed the
distinction between a state of nature and civil society to a degree far
bevond any medieval author. This was because they shared the sceptic~' sense that most familiar moral beliefs and practices were the
product of specific circumstances and histories, and differed from
place to place; their history was the history of civil societies. But the
minimalist core of universal moral principies was not part of that
story, and could be used to describe (speculatively) what life would
be like without the superadditions of civility. 1t could also be used
for the sarne reason to describe relations between different civil
societies, the first use to which it was in fact put, in the writings
of Grotius.
But perhaps the most important way in which the modem moral
science preserved something of the outlook of the late-sixteenthcentury sceptical humanist is in the deep pluralism inherent in it. The
function of the new moral science was not crudely to rebut scepticism but to transcend it: to use what the sceptic himself believed as
the basis for an anti-sceptical science. Thus the multiplicity of possible beliefs and customs to which the relativist pointed was not to be
denied, or treated as evidence for human irrationality, but (in
general) to be endorsed and absorbed into the new theory. As
Grotius said plainly, 'there are severa! Ways of Living, some better
than others, and every one may chuse what he pleases of ali those
Sorts'. 46 All the writers in this tradition, including even Hobbes, saw
it as part of their duty to defenda relatively pluralist intellectual and
aesthetic culture against its enemies - notably the Calvinist and
Catholic churches. This aspect of Pufendorf's work was another
reason for the hostility levelled at him by the Lutheran clergy.
lt would, I think, be impossible to overestimate the importance to
these writers of their sense that large areas of life needed defending
from fanatics, that is, from people who believed in more extensive
universal moral obligations than those contained in the minimalist
core. ln a way, they all wished to se e the world made safe for the sceptic; the irony was that scepticism itself could not show how the world
Grotius,
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l'um, p. 64.
was to be made safe, for it could not in principle show why the fanatic
was wrong in holding his moral beliefs and acting upon them,
however violently. W e can see the character of this ambition clearly
if we contrast the fortunes ofboth scepticism and what we might call
'post-scepticism' in the United Provinces and in France. The fact
that the wars of religion had been fought to a stalemate across
Europe, and that henceforward politicians in most major European
countries were going to have to live with fundamental and irreconcilable ideological divisions within their states, undoubtedly
fostered a kind of disengaged and sceptical attitude in the leaders of
many states by the beginning of the seventeenth century. 'To know
nothing is the surest faith' remarked Jan van Oldenbamevelt,
Advocate-General of the United Provinces and the patron of the
young Grotius; 'in matters of state the weakest are always wrong'
observed Cardinal Richelieu ofFrance, ironically enough to Grotius
propos of the fall and execution of Oldenbamevelt. 47 Richelieu
helped the so-called li bertins rudits and contributed to the sceptical
culture which was so prominent in seventeenth-century France;
there, the power of the state protected such ideas and to some extent
even based itself upon them. ln the United Provinces, on the other
hand, the execution of Oldenbamevelt and the exile of Grotius were
dramatic illustrations of the fact that disengaged and pluralist politicians were themselves vulnerable to the attacks of fanatics. It is no
accident that in France (as Professor Keohane has shown) the kind
of post-sceptical moral science I have been discussing hardly
developed; 48 it was Holland and England above all where it was
invented, two countries where in the first half of the seventeenth
century the power of the state was threatened o r broken by religious
dogmatists. Nor is it an accident that so many of these modem
natural-law writers tumed to a powerful and- in our terms- illiberal
state to protect intellectual freedoms from mistaken or dogmatic
philosophers arrayed in churches. Pufendorf too fits into this
picture, for one ofhis principal concems apart from his natural jurisprudence was an analysis of the German constitution in the wake of
the destructive religious wars of the mid-century, in which he
pleaded for strong and effective states in Germany to prevent such a
catastrophe being repeated.
This deeper understanding of the humanist roots of the modem
41
48
Jan den Tex, Oldenbamevelt, I (Cambridge, 1973), p. 7; G ro tius, BriefwiJJeling, II, ed.
P.C. Mo lhuysen (The Hague, 19 36), p. 448.
Nannerl Keoha ne, Philosophy and the State in France (Princ e ton, 1980), p. 122.