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Acknowledgements vii
Series Preface ix
Introduction xi
2 Huntington Cairns (1948), 'Spinoza's Theory ofLaw', Columbia Law Review, 48,
pp. 1032-48. 3
2 Hans Gribnau (1992), 'The Power ofLaw. Spinoza's Contribution to Legal Theory',
Nederlands Juristenblad, 67, pp. 1443-5l. Translated for this volume. 21
3 Roberto Ciccarelli (2003), 'Spinoza's Critique ofLaw', in Potenza e beatitudine:
11 diritto nel pensiero di Baruch Spinoza, pp. 89-98. Translated for this volume. 39
4 Benoit Frydman (2003), 'Divorcing Power and Reason: Spinoza and the
Founding ofModern Law', Cardozo Law Review, 25, pp. 607-25. 47
9 Gerard Courtois (1980), 'Laws in Spinoza and Saint Thomas Aquinas', Archives
de philosophie du droit, 25, pp. 159-89. Translated for this volume. 143
10 Otto Pfersmann (2003), 'Law's Normativity in Spinoza's Naturalism', Cardozo
Law Review, 25, pp. 643-56. 169
11 Donald Rutherford (2010), 'Spinoza's Conception ofLaw: Metaphysics and
Ethics', in Yitzhak Y. Melamed and Michael A. Rosenthai (eds), Spinoza 's
Theological Political Treatise: A Critical Guide, Cambridge: Cambridge
University Press, pp. 143-67. 183
vi Spinoza and Law
18 Paolo Cristofolini (2009), 'Esse sui juris and Political Science' , in La scienza
intuitiva di Spinoza, Pisa: Edizioni ETS, pp. 57-72. Translated for this volume. 355
19 David West (1993), 'Spinoza on Positive Freedom', Political Studies, 41,
pp. 284-96. 367
20 Theo Verbeek (2007), 'Spinoza on Natural Rights', Intellectual History Review,
17,pp.257-75. 381
21 Justin D. Steinberg (2008), 'Spinoza on Being sui iuris and the Republican
Conception ofLiberty', History ojEuropean Ideas, 34, pp. 239--49. 401
Ashgate would like to thank the researchers and the contributing authors who provided copies,
along with the following for their permission to reprint copyright material.
The University of Arkansas Press for the essay: Edwin Curley (1991), 'The State ofNature
and Its Law in Hobbes and Spinoza', Philosophical Topics, 19, pp. 97-117. Copyright © 1991
by the Board of Trustees of the University of Arkansas.
Cambridge University Press for the essays: Matthew J. Kisner (2011), 'The Natural Law',
in Spinoza on Human Freedom, Cambridge: Cambridge University Press, pp. 112-34.
Copyright © 2011 Matthew J. Kisner, published by Cambridge University Press, reproduced
with permission; Donald Rutherford (20 I 0), 'Spinoza's Conception of Law: Metaphysics
and Ethics', in Yitzhak Y. Melamed and Michael A. Rosenthai (eds), Spinoza's Theological
Political Treatise: A Critical Guide, Cambridge: Cambridge University Press, pp. 143-67.
Copyright © 20 I 0 Cambridge University Press.
Cardozo Law Review for the essays: Benoit Frydman (2003), 'Divorcing Power and
Reason: Spinoza and the Founding of Modern Law', Cardozo Law Review, 25, pp. 607-25;
Aaron Garrett (2003), 'Spinoza as Natural Lawyer', Cardozo Law Review, 25, pp. 627-41;
Otto Pfersmann (2003), 'Law's Normativity in Spinoza's Naturalism' , Cardozo Law Review,
25, pp. 643-56; Manfred Walther (2003), 'Natural Law, Civil Law, and International Law
in Spinoza', Cardozo Law Review, 25, pp. 657-65.
Carocci editore for the essay: Roberto Ciccarelli (2003), 'Spinoza's Critique of Law',
in Potenza e beatitudine: Il diritto nel pensiero di Baruch Spinoza, pp. 89-98. Translated for
this volume.
Chatham House for the essay: H. Lauterpacht (1927), 'Spinoza and International Law' , ßritish
Year ßook oflnternational Law, 8, pp. 89-107.
Columbia Law Review Association for the essay: Huntington Caims (1948), 'Spinoza's
Theory of Law', Columbia Law Review, 48, pp. 1032-48.
De Gruyter for the essay: Gail Belaief (1971), 'The Concept of Civil Law in Spinoza',
in Spinoza's Philosophy ofLaw, The Hague: Mouton, pp. 13-33.
Editions Dalloz for the essay: Gerard Courtois (1980), 'Laws in Spinoza and Saint Thomas
Aquinas', Archives de philosophie du droit, 25, pp. 159-89. Translated for this volume.
Elsevier for the essays: Errol E. Harris (1984), 'Spinoza's Treatment of Natural Law', in
C. De Deugd (ed.), Spinoza 's Political and Theological Thought, Amsterdam: North-Holland
Publishing Company, pp. 63-72. Copyright © 1984 by the Royal Netherlands Academy of
viii Spinoza and Law
Arts and Sciences; Justin D. Steinberg (2008), 'Spinoza on Seing sui iuris and the Republican
Conception of Liberty', History 0/ European Ideas, 34, pp. 239--49. Copyright © 2008
Elsevier.
Kluwer for the essay: Hans Gribnau (1992), 'The Power of Law. Spinoza's Contribution to
Legal Theory', Nederlands Juristenblad, 67, pp. 1443-51. Translated for this volume.
Verlag Köningshausen & Neumann, Gmbh for the essay: G.A. van der Wal (1985), 'Spinoza
and the [dea of Reason 0/ State', Studia Spinozana, 1, pp. 275-304. Copyright © 1985
Manfred Walther.
Palgrave Macmillan forthe essay: Andre Santos Campos (2012), 'Laws ofNature', inSpinoza:S
Revolutions in Natural Law, Basingstoke: Palgrave Macmillan, pp. 53-88. Copyright © 2012
Andre Santos Campos.
Taylor and Francis for the essay: Theo Verbeek (2007), 'Spinoza on Natural Rights',
Intellectual History Review, 17, pp. 257-75. Copyright © 2007 [nternational Society for
[ntellectual History.
Temas & Debates for the essay: Diogo Pires Aurelio (2014), 'Spinoza, Kelsen and the Nature
ofthe Legal Norm', in 0 mais natural dos regimes: Espinosa e a democracia, Lisbon: Temas
& Debates, pp. 280-310. Translated for this volume.
John Wiley and Sons for the essay: David West (1993), 'Spinoza on Positive Freedom',
Political Studies, 41, pp. 284-96. Copyright © [993 Political StudiesAssociation.
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Series Preface
The series Philosophers and Law selects and makes accessible the most important essays in
English that deal with the application to law ofthe work ofmajor philosophers for whom law
was not a main concern. The series encompasses not only what these philosophers had to say
about law but also brings together essays which consider those aspects ofthe work ofmajor
philosophers which bear on our interpretation and assessment of current law and legal theory.
The essays are based on scholarly study of particular philosophers and deal with both the
nature and role of law and the application ofphilosophy to specific areas of law.
Some philosophers, such as Hans Kelsen, Roscoe Pound and Herbert Hart are known
principally as philosophers of law. Others, whose names are not primarily or immediately
associated with law, such as Aristotle, Kant and Hegel, have, nevertheless, had a profound
influence on legal thought. It is with the significance for law of this second group of
philosophers that this series is concerned.
Each volume in the series deals with a major philosopher whose work has been taken up
and applied to the study and critique of law and legal systems. The essays, which have all
been previously published in law, philosophy and politics journals and books, are selected and
introduced byan editor with a special interest in the phi losopher in question and an engagement
in contemporary legal studies. The essays chosen represent the most important and influential
contributions to the interpretation ofthe philosophers concerned and the continuing relevance
oftheir work to current legal issues.
TOM CAMPBELL
Series Editor
Centrefor Applied Philosophy and Public Ethics
Charles Sturt University
Introduction
Philosophy of law in its widest sense comprises all forms of inquiry into the nature, the value
and the function ofthose norms goveming human life in society, whetherthey aim at actualizing
an ideal of justice or not. Within such a comprehensive frame of reference, philosophical
considerations about the law are myriad. They can be found in arguments conceming the
characteristics ofnature, in reflections on the functioning ofpolitical structures, in attempts at
applying elements of value theories to the realm of practical life or in investigations around
conceptual analysis. They can be drawn out ofworks on metaphysics and ontology, on social
and political theory, on ethics and philosophy of language. The study of philosophers such
as Aristotle, Aquinas, Hobbes and Kant, whose names are not immediately or primarily
associated with law, but who nevertheless have had a profound influence on legal thought,
follows from these premises.
A more specific sense ofphilosophy of law is made up ofthose inquiries into the grounds
and the instruments belonging to empirical experiences ofthe law. They do not follow simply
from extra-legal considerations to be found in a complete system of philosophy, as if the
law were simply one of the fruits hanging from the multidisciplinary tree of philosophical
knowledge, in accordance with Descartes's famous metaphor. Rather, they direct their line
of questioning towards a common-sense conception of the law without being committed
necessarily to pre-established philosophical premises, whether they be metaphysical,
anthropological, political or ethical. In other words, their focus on problems related to the
nature and the functioning ofthe law is independent from systematic accounts of extra-legal
philosophical issues. Philosophy of law acquires then disciplinary autonomy. The study of
legal theorists such as John Austin, H.L.A. Hart, Hans Kelsen and Ronald Dworkin falls under
this category.
In general terms, the difference between the wide and the specific senses of philosophy
of law consists in the fact that the former (unlike the latter) admits implicit (in addition to
explicit) references to the law inside an overall system of philosophy.l The specific sense of
philosophy oflaw demarcates the object ofinquiry in such a way as to produce the disciplinary
autonomy of legal thought. Contrariwise, the widest sense ofphilosophy of law encompasses
theories that wander around several different philosophical disciplines in search of an answer
to problems not directly related to the traditional quid jus, but which somehow end up
approaching it. Legal theory is then inherently philosophical (not merely jurisprudential) and
finds its justification only in the law's openness to other disciplines.
The distinction between 'Explicit Philosophy of Law' and 'Implicit Philosophy of Law' was
established first by the Brazilian legal theorist Miguel Reale (2000, pp. 286-87).
xii Spinoza and Law
The fact that Spinoza clearly did not dedicate many ofhis writings to law and that Spinoza
studies and jurisprudence have paid little attention 2 to his considerations on the nature of
law seems sufficient to consider hirn a legal philosopher only in the widest possible sense
of philosophy of law. His major work, the Ethics, which explores topics pertaining to
metaphysics, physics, philosophy ofnature, epistemology, philosophy ofmind, anthropology,
ethics and politics, fails to include allusions to law; his earlier unpublished texts, such as
the Treatise on the Emendation of the Intellect, the Short Treatise on God, Man and His
Well-Being, the Principles of Cartesian Philosophy, as weil as his correspondence, seldom
contain references to law; his only explicit remarks on law appear in the political chapters of
his Theological-Political Treatise and in the beginning of his Political Treatise (all included
in Spinoza, 1972), and even then only as the groundwork of what he intends to discuss about
politics. 3
And yet, whenever he does mention law, Spinoza endows it with the capacity to express
the power of Nature in the realm of human individuality. For someone who thinks of
Nature as the all-inclusive substantive power in which exists all that is and is conceived,
in an immanent causal process, such a mediating role seems to be rather important. Law
constitutes the link between this natural power of existence and the norms goveming human
life in society. Spinoza does not seem to be able to brood about politics without establishing
a basic concept of this sort - law is the basic elemental drive of all his discussions of life in
society. That is why he presents definitions of law both in the Theological-Political Treatise
and in the Political Treatise; and definitions, for Spinoza, open for the arguments exposing
the 'order of knowledge' by accomplishing a double task, that of being nominal and real. 4
Spinoza's conception of law can be studied chiefly for its importance to his political theory,
and understandably so. But it also seems to emerge out of his philosophical system as a
somewhat pivotal elementjustifying an increasing awareness.
What is puzzling about Spinoza's references to the nature and the instruments of law is
that he managed to tackle the problem of quid jus directly inside works belonging to other
disciplines, instead of simply deriving an answer to it when dealing with specifically unrelated
The key to understanding Spinoza's philosophy of law is his association between law and
Nature. Philosophy is for hirn a systematic thought focusing on what is and exists inside an
infinite and immanently self-causing whole. This whole he calls 'God, or Nature' [Deus sive
Natural A philosophical examination of any given concept will always be a quest for what
is natural in it or for determining how much naturalness it actually expresses, regardless of
the discipline to which that concept pertains. The search for what is real in a philosophical
concept - such as the law - is intrinsically connected to an ontology ofNature or a systematic
metaphysics.
Spinoza intends to provide a notion of law associated with his conception of Nature.
However, he fails to do so in his writings on metaphysics and ontology. He only defines law
when he attempts to supply ontological grounds to his political theory. From this perspective,
it might seem that his references to law pertain exclusively to the political realm. But how can
law be associated with Nature in such an instance?
xiv Spinoza and Law
In this sense, see Hampshire (1953, pp. 47--48, 177) and Curley (1988, pp. 4-6).
Spinoza and Law xv
not doubt but rather a true idea from which all knowledge unfolds. All his arguments begin
with definitions that are affirmations of essences rather than negations of prejudices; also,
his rejections of teleology and of a creational transcendent God are concluded a contrario
from what he considers true premises, which is why they appear in the appendix to part I of
the Ethics rather than in apreface or in demonstrations; and his notion of the soul derives
from God's immanence rather than from the inadequacy of theology's normative system.
If Spinoza's metaphysics were entirely in his political texts, then there would not be any
metaphysics at all- only a political theory full of second intentions. In such a case, how could
one explain his explicit defence ofthe political usefulness of certain instruments belonging to
the theological tradition, such as normative systems, the minimal creed or the state's quasi-
religious way of acquiring legitimacy?
In Spinoza's philosophy, metaphysics is not contained in politics any more than politics
is not contained in metaphysics. 80th are interdependent realms inside one common
philosophical system. They neither reject nor absorb each other; but they do share certain key
concepts that are validated inside each of those realms, either as metaphysical concepts or as
political concepts.
The same occurs with his concept of law. It has one foot in systematic metaphysics and
the other in philosophical political science. It is the bridge connecting ontology with politics
and vice versa. It is comprehensible only inside and emerging from Nature; simultaneously,
it renders politics comprehensible by explaining how Nature turns into expressions of
constructive political processes. A study ofthe law can occur only through ontology, without
losing its ability to become a constitutive concept within the horizon of politics. What the
law actually is can only be known within the conceptual framework of 'God, or Nature'.
Thus, there is politics in Spinoza's ontology and ontology in Spinoza's politics only from
the standpoint of the law. If there is such a thing as a philosophy of law in Spinoza, it is a
philosophy ofNature through law with politics within its horizon.
Still, it is a philosophy of law standing on its own rather than merely implicit in
metaphysical, theological, moral or political considerations. It is a key element in Spinoza's
entire philosophical system - its explicitness consists in a conceptual stroll through the
system. His philosophy of law is intrinsically interdisciplinary not because his concept of
law is hidden under other branches of the system, but because it reaches (and can only be
conceived in) an ontology ofNature extending to ethical and political realms. And because his
philosophy oflaw traverses different areas ofhis system, it involves an analysis ofthe nature
of law inside a philosophy ofNature, and also an application ofthat analysis to life in society.
In this sense, political theory appears to derive more from philosophy of law rather than the
other way round. Spinoza's philosophy of law is then a continuous reconceptualization ofthe
legal in the ontological realm ofNature - it is an ontological study of positive law. In other
words, it is ontology ofthe law.
It is now commonplace for legal theorists to consider that concepts of law usually derive
from the consideration of three elements: due enactment; social efficacy; and axiological
correctness (Alexy, 1999, p. 23). All these elements function as criteria of legal validity, that
is, as determinative yardsticks from which it is possible to identify the obligation to accept a
xvi Spinoza and Law
standard in legal reasoning and what rules are legally binding. Legal theories that concentrate
exclusively on due enactment and social efficacy advocate a positivist concept of law,
whereas those which accept axiological correctness as an important legal characteristic are
usually called natural law theories. The jurisprudential dimension of natural law focuses on
how morality can function as a validity test on positive law. It declares that what the law is on
some subject depends on what the law ought to be. Its basic concern is to establish a necessary
connection between morality and law and to make sure that positive law is intrinsically an
expression ofmoral justice.
Within such a frame of reference, the traditional view of Spinoza on law holds that he
is a legal positivist (Belaief, 1971, pp. 101-03; Walther, 1982; and, more subtly, Rocca,
2008, pp. 211-12). He defines justice as 'a set disposition to render to every man what is his
in accordance with civil law' [animi constantia tribuendi unicuique, quod ei ex jure civili
competit]; and injustice, by contrast, 'is to deprive a man, under the guise of legality, ofwhat
belongs to hirn by true interpretation ofthe law' [est specie juris alicui detrahere, quod ei ex
vera legum interpretatione competi] (Theological-Political Treatise, eh. XVI) (Spinoza, 1972,
vol. 111, p. 196). The steadfast will to render to each his due is the same as the set disposition
to obey what civil law establishes as rights and duties pending on each and every man. In
this sense, Spinoza makes a legalist interpretation of Ulpian's c1assic definition of justice as
constans voluntas suum cuique tribuere. For hirn, justice is obedience to valid positive law.
He uses different arguments to support this view.
In the Theological-Political Treatise, he presents the Argument from Politics. In his own
words, justice receives 'the force of law and command from the authority of the state alone,
that is, solely from the decree of those who have the right to rule' (Theological-Political
Treatise, eh. XIX) (Spinoza, 1972, vol. 111, p. 230). Spinoza identifies right Uus] with power
[potentia]; in the state of nature, men are either isolated or in conflict with one another,
which means there is no cooperation; and without cooperation, men can neither survive nor
develop their productive powers; therefore, all that is not immediately natural depends upon
the formation of a proactive locus of cooperation. Since justice involves human relations, it
only makes sense the moment that cooperation comes about; and cooperation depends upon
the adoption of a common standard of dos and don 'ts by which all participants can undergo
a process of empowerment without the uncertainty of being thrown back at any time to the
condition of isolation. That common standard can only emerge from their common power,
that is, from political power. lustice is the name given to a standard that applies to human
conventions and is itself a human convention. Outside the boundaries of effective political
institutions, justice and injustice are inconceivable.
The Argument from Politics, however, does not fit into the exact phrasing of Ulpian's
definition of justice. Rather, it simply identifies justice with obedience in such a way as to
describe obedience also as a constans voluntas, not to render to each his own but to follow
what is established by law.
In the Ethics and in the Political Treatise, Spinoza tried to connect explicitly the Argument
from Politics with the idea of 'rendering to each his own': he then introduced the Argument
from Property. According to the Ethics,
in the state of nature there is no one who by common consent is master of anything, nor is there
anything in Nature which can be said to be this man's and not that man's. Tnstead, all things belong
Spinoza and Law xvii
to all. So in the state ofnature, there cannot be conceived any will to give to each his own, or to take
away from someone what is his. That is, in the state ofnature nothing is done which can be calledjust
or unjust. (Ethics 4P37S2; Spinoza, 1985)
just as sin and obedience, taken in the strict sense, can be conceived only in astate, the same is true
of justice and injustice. Far there is nothing in Nature that can rightly be said to belong to one man
and not another; all things belong to all, that is, to all who have the power to gain possession ofthem.
But in astate, where what belongs to one man and not to another is decided by common laws, a man
is called just who has the constant will to ren der to every man his own; and he is called unjust who
endeavours to appropriate to himselfwhat belongs to another. (Political Treatise, ch. TI, §23; Spinoza,
2002)
Justice consists in rendering to each his own, where 'own' is understood to be the object of
a property right belonging exclusively to the 'owner'. In the state of nature, there are only
de facta possessions but no de jure property rights, that is, individual c1aim-rights whose
correlatives are duties erga amnes backed up by force to abstain from and respect the owner's
use of possessions. Exclusive individual rights, and therefore also property, are created by
civillaw. Therefore, justice is the steadfast will to render to each his own, or rather to allocate
available social goods in respect to those exclusive individual rights to property which are
non-existent until introduced by civil law. Justice is obedience in the sense that it is respect
for those civillaws establishing and regulating property relations.
Nevertheless, the claim that Spinoza is a legal positivist cannot rest solelyon these
arguments. On the one hand, Spinoza seems to express more a legal ist conception of justice
rather than legal positivism per se. If justice is suum cuique tribuere, then it is necessary to be
able to determine what each man's own is if a vicious circle is to be avoided. By means of a
legal ist determination ofwhat suum cuique is, it becomes possible to arrive at the conclusion
that to be just means to accord to each person what the law entitles hirn to. This formula seems
to admit of as many variants as there are different types of law; each system of law assurnes a
justice relative to that law. To be just is to apply the rules of a given legal system; to be unjust
is to misapply them. In practice, this strictly legalist interpretation of Spinoza's concept of
justice can easily be mistaken for legal positivism. However, legalist conceptions of justice
are not necessarily the same as legal positivism. Legal positivism claims that morality and
associated concepts such as justice cannot function as criteria for ascertaining the validity
and obligatory force of law; moral judgements ab out law are morality, not law; only social
efficacy and due enactment determine the existence oflaw. Contrariwise, legalist conceptions
of justice state that valid positive law establishes the contents of justice; judgements about
justice or injustice are necessarily legal, not moral; the requirements ofjustice and of civillaw
coincide. The fact that legal positivism and legalist conceptions ofjustice share the conclusion
according to which positive law cannot be invalid because ofinjustice does not mean that they
are the exact same thing.
On the other hand, once it is established that Spinoza's philosophy of law is a philosophy
ofNature through law with politics within its horizon, how can it be possible to claim simply
that there is no naturallaw in Spinoza? In fact, he never really seems to approach the subject
of law outside the conceptual framework ofwhat he calls naturallaw. One could claim that he
xviii Spinoza and Law
remains a naturallawyer, albeit not in the traditional sense ofnaturallaw as a theory of legal
validity. However, this turns out to be the same as c1aiming that he is a legal positivist who is
attentive to philosophy ofnature. Can he be a naturallawyer and a legal positivist at the same
time? If so, is he still a naturallawyer? And is he still a legal positivist?
Spinoza sets up a connection between his system 's metaphysical grounds and his concept
of law. Unlike most natural law theories, he does not intend to carry out a correspondence
between values and law. Rather, he defines law by the concept of power [potentia] - that
whose actuality is productive in the sense that it generates effects. Law is power as efficacy.
However, power is understood solely in the light of a paradigm of causality: nature's self-
causality. Consequently, efficacy as a determinant element ofvalid positive law depends upon
the idea of 'naturalness'. In a revolutionary and complex way of making sense of law and
justice, Spinoza somehow manages to subvert both traditions.
In the Political Treatise, Spinoza says that: 'By natural law, then, I understand the laws or
rules ofNature in accordance with which all things are made, that is, the very power [potentia]
ofNature. So, the naturallaw ofNature as a whole, and consequently of each individual thing,
is coextensive with its power' (Political Treatise, eh. 11, §4; Spinoza, 2002). What attributes
'naturalness' to Spinoza's conception of law is the fact that it expresses natural power.
From the standpoint of individuals, power is neither a capacity for performing an action
nor an abstract freedom (exercisable and not necessarily exercised), but only a measure of
causality. Power extends as far as the direct effect which has that power for cause. An individual
man, for instance, is powerful by achieving everything that results from his existence's actual
productivity. He does not have a natural right to everything he can; he has a natural right to
everything he does. The only limit to his natural power is the act ofwhich he can no longer
be considered a direct cause. When Spinoza says that individual natural law is coextensive
with his power, this is what he means: that a right 'extends' as far as the effect in production;
it is 'coextensive' with all the effects in production by the individual. This notion of power
has nothing to do with Aristotle's views concerning potency. It is not identical with a present
capacity for the performance of a future end; it is not a present thing affirming something
for the future. There is no futurity, either logicalor chronologieal, in Nature's power. An
individual's power, and consequently his expression ofnaturallaw, is actually the measure of
extension of his own causality, the scope of all his effects.
Unlike what some commentators seem to suggest (Yovel, 1992, p. 149), Spinoza's
association of natural right with power is not a simple metaphorical exercise used in a Marrano-
styled rhetoric. On the contrary, Spinoza can define individual expressions ofnaturallaw only
through ontological power itself. Individual natural rights are the individual's actual causal
power in accordance with the individual 's naturallaws. One has a right to do something if one
does it. Possibilities have nothing to do with an individual natural right. And since Spinoza's
conception of individuality is wider than the category of human individuals, comprising all
singular things, then all individuals are expressions of this natural power. A man's right is
as natural as a lion's or a fish's, which is why he says that lions and fish have a natural
right to eat smaller animals precisely because they are naturally powerful (in the necessarily
causal sense) to do so (Theological-Political Treatise, eh. XVI) (Spinoza, 1972, vol. 111,
Spinoza and Law xix
p. 195). Power is the measure of causality: all-necessary, neither contingent nor hypothetical.
In addition, individual things do not simply have power; they are power. Spinoza's notion of
endeavour, according to which 'each thing, insofar as it is in itself, endeavours to persevere in
its own being' (Ethics 3P6; Spinoza, 1985), expresses the actual efficiency of causal power. In
individual things, active power is equivalent to this endeavour - as Spinoza says, 'power or
endeavour' [potentia sive conatus] (Ethics 3P7d; Spinoza, 1985).
From the standpoint of legal norms, natural law is power as efficacy in the sense that it
expresses the political institutions' ability to preserve their own dynamic condition by being
the most obeyed they can possibly be.
Efficacy depends upon two major factors.
The first factor is moderation. Spinoza's claim that freedom of thought and speech is
advantageous to the sovereign entails two points: that freedom ofthought and speech cannot
be confused with licentiousness, that is, with an absolute ability to think of everything and of
expressing any opinion whatsoever, since seditious opinions to the public peace are to remain
inadmissible (Theological-Political Treatise, eh. XX) (Spinoza, 1972, vol. 111, p. 242); and
that what matters is not whether sovereigns have a right to compel subjects to follow certain
opinions or not, but rather if doing so is beneficial or damaging to the sovereign (Theological-
Political Treatise, eh. XX) (Spinoza, 1972, vol. 111, p. 240). Absence ofindividual freedom is
damaging in the long run to the sovereign, since tyranny intensifies the gap between ruler and
subjects, which in turn furthers the subjects' resistance to commands, which in turn weakens
the sovereign, which in turn produces social tensions and conflicts that are damaging to peace
and political stability. The free state - the one which prornotes individual freedom because
that is beneficial to its power - is the one that stands in the middle of two contrary political
regimes, namely absolute anarchy and absolute tyranny: it is the moderate government.
How can astate become moderate? Spinoza provides the answer by focusing on the Hebrew
state. Moderation is achieved by limiting the power attributed to Hebrew leaders and by
'curbing the boundless licentiousness of princes' (Theological-Political Treatise, eh. XVII)
(Spinoza, 1972, vol. 111, p. 213). The idea Iying behind this example is that unlimited power
is worse and less powerful than limited power. Political power is more stable and prosperous
the more it eliminates those conditions that allow arbitrariness of political decisions and the
more it accepts the rule of law even though it is not bound by it. The free state is the one
with a moderate government in which decision-making is predictable. The exact opposite
of a moderate state is one in which people live their whole lives in a 'continual practice of
obedience', where no one can des ire what is forbidden but only what is prescribed, to the point
that slavery is mistaken with freedom (Theological-Political Treatise, eh. XVII) (Spinoza,
1972, vol. 111, p. 216). In the moderate state, subjects desire only what is prescribed because
what is prescribed is only what they desire in the first place. The sovereign has no arbitrariness,
since he is limited to prescribing only what subjects are expecting hirn to prescribe. That is
what makes his decisions efficacious.
Efficacy's second factor is democracy. The fact that men abhor to be ruled by their equals
entails that there is always a gap between rulers and subjects and an asymmetry between
ruling and obeying except when citizens believe they are following their own volitions
when obeying the laws. The more transcendent-like is the relation between the state and its
subject, the more will men believe that they are conforming to another's will instead oftheir
xx Spinoza and Law
own, which entails that they will obey laws less willingly. Efficacy depends mostly upon the
generalized beliefthat subjects participate to some extent in the making ofpolitical decisions.
In fact, Spinoza distinguishes between mere factual obedience and the psychological
acceptance of specific commandments. The distinction is between extern al obedience and
internal obedience: the former is the mere observance through actions or omissions of that
which is commanded by whomever might be in the position of authority, and is sufficient
for obedience (Theological-Political Treatise, eh. XVII, 1972, vol. 111); the larter is an
'internal action of the mind' through which one 'resolves to obey every word of another
wholeheartedly' (Theological-Political Treatise, eh. XVII) (Spinoza, 1972, vol. 111, p. 202),
and measures the intensity of the externally observed obedience. In other words, extern al
obedience is sufficient for obedience; interna I obedience determines the reasons for actions or
omissions. The more an individual 'resolves to obey every word of another wholeheartedly'
because he understands the necessity of compliance with that which is commanded, the more
wholeheartedly will he obey, since the command will reveal reasons for actions or omissions
that are actively accepted as such by the individual. He thus might be said to participate
intellectually in the normative strength ofthe commandment to which he obeys.
All this appears remarkably close to being a 300-year prelude to H.L.A. Hart's (1994,
p. 89) famous distinction between the extern al and the internal points of view. Efficacy is
determined mostly by this 'internal action of the mind' by which the addressees of legal
rules and principles adhere to them 'wholeheartedly'. That is what constitutes valid positive
law; it is also what makes up democracy as the most natural of regimes (Theological-
Political Treatise, eh. XVI) (Spinoza, 1972, Vol. 111, p. 195). As a result, Spinoza proposes to
equate political efficacy with individual freedom. His first step is to eradicate the imaginary
ontological gap between rulers and subjects by making each individual believe that when he
obeys political decisions he is obeying no one but his own will. The most effective political
decisions are those laws that become mandatory because individuals are willing to obey them
and accept them qua obligatory. That is, those in which the law-making process is somehow
politically immanent. And that can only be achieved when the subjects who will obey the laws
are exactly the same individuals who constitute the law-making process in the first place. The
more democratic-like the state is, the more efficacious it will be, since each individual subject
will more actively believe in obeying the laws because it is advantageous for the public good
and consequently also for hirnself.
Within this frame of reference, any content whatsoever can be law regardless of its
substantive moral quality (Kelsen, 1992, p. 56), provided that it is efficacious - that is,
powerful. Spinoza would agree with legal positivists when they claim that civil law is valid
only when it is efficacious; but he goes one step further and adds that civillaw is valid because
it is efficacious. Moreover, he grounds this assertion on a metaphysical view of natural law.
Civillaws are more efficacious the more they are charitable, rational, egalitarian and inclusive
- all these different criteria help to determine cumulatively efficacious laws which, for that
very reason, are also the most just laws in accordance with his legalist conception of justice.
Conversely, injustice is powerlessness; actions, characters and states of affairs are unjust
whenever they are powerless to become more powerful (productive or efficacious) than they
actually are.
In some theories, justice functions as a classifYing criterion for the validity of law: it is
the pivotal test for classifying something as law. If a norm with some pretence to legality
Spinoza and Law xxi
contradicts justice, it cannot even be called a legal nonn. In Spinoza, justice is a qualifYing
criterion for the validity of law: it does not detennine what the law actually is, but rather
which law is legally binding and which is legally defective for either succeeding or failing,
respectively, to meet a certain substantive requirement (Alexy, 20 I 0, p. 26). lustice does not
c1assify law as such, but it qualifies it as more or less natural. lustice is presented by Spinoza
as an optimization standard in human relations in the light ofwhich several different criteria,
contexts and disciplines detennine different degrees of natural power. But the fact that justice
is always (and solely) a standard concept that merely qualifies natural power and law - and
not vice versa - is precisely what prevents it from becoming a value theory of justice. In other
words, it is not a c1assical natural law theory. Rather, it is a naturalist conception of legal
efficacy -jus sive potentia [Iaw, or power].
The Essays
The relevant literature on Spinoza's philosophy of law is so scarce that the bulk ofwhat has
been written hitherto is comprised in the present volume. This also helps explain why the
themes that are approached in the following essays are not very diversified, but rather tend
to expand on the problems of detennining whether Spinoza was a natural lawyer or a legal
positivist, on the contrast between laws of Nature and the nature of positive laws, on the
exact structure of civil and international law and on the meaning of individual rights inside a
deterministic and necessitarian framework. The selected essays have been divided into five
categories, each arranged in chronological order,6 and with the intention of mirroring those
themes.
Part I contains essays that seek to characterize Spinoza's approach to law in general terms.
Huntington Cairns's c1assic text (Chapter I) tries to provide a general explanation for a
concept of law whose originality lies in the undervaluation ofnonnativity and in the primacy
ofthat in virtue ofwhich things ofthe same species act in a certain and detenninate manner.
With this purpose in mind, he offers comparisons between Spinoza's and Aquinas's views on
law, noting similarities and differences; however, Cairns never fails to alert that Spinoza's
theory oflaw is ultimately a theory ofpower, from which it follows an inescapable connection
between power and its proper exercise. Hans Gribnau (Chapter 2) follows up on this idea,
and presents a general overview ofthe most relevant problems in Spinoza's concept of law,
namely the difference between laws of Nature and natural law, the meaning of civil law, the
importance ofthe rule oflaw and ofthe principle ofseparation ofpowers in the constitutional
legal structure, as weil as what he claims to be Spinoza's c10seness to legal positivism.
Roberto Ciccarelli (Chapter 3), on the other hand, tries to disentangle the implications to
legal theory of Spinoza's critique of teleology. Ciccarelli distinguishes between a finalistic
or teleological justification of the law (specific to sanction-executing concepts of law) and
what he calls a 'genetic justification of the law' (p. 40) (in accordance with metaphysical
determinism). Ciccarelli's purpose is not to claim that there is no teleology whatsoever in
Spinoza's legal theory, but rather that the nature of law for Spinoza cannot be explained in
teleological tenns. Finally, Benoit Frydman (Chapter 4) focuses on the importance to legal
With the exception of Part IV, since it includes essays about civil law and about international
law; the essays exclusively on international law follow a chronological order in themselves.
xxii Spinoza and Law
theory of Spinoza's method of biblical exegesis laid out in the Theological-Political Treatise.
According to Frydman, the pivotal idea supporting this method is the need to distinguish
between reason and authority when interpreting the Bible - a method that can be expanded to
legal texts, in which the interpreter will not try to accommodate the sovereign's commands
to reason but only to understand them as they are. Frydman's conclusion is that this novel
method of interpretation opened the way for new kinds of legal work that 'founded modern
law', including legal positivism.
Part 11 unites essays that deal with Spinoza's conception of natural law. Errol E. Harris's
(Chapter 5) point of departure is the idea according to which the laws of reason are for
Spinoza just as natural as those of physics or of psychology; however, in a comparison
between Spinoza and Aquinas (to be found also in the chapters written here by Cairns and by
Courtois), Harris concludes that Spinoza's equivalence ofGod's eternallaws with the laws of
reason displays strong affinities between his ethics and natural law ethics. Doubt is shed on
this picture in Edwin Curley's essay (Chapter 6), which seeks to expand on Spinoza's claim
that right is coextensive with power. Curley finds no reasonable arguments to support the
presumption that such a claim entails an identity between right and might; rather, power is
the measure of right; consequently, when Spinoza speaks of naturallaws, he is approaching
something entirely different from what is established in the naturallaw tradition. A somewhat
similar interpretation can be found in the following essay by Aaron Garrett (Chapter 7), who
walks over the narrow line dividing Spinoza's (supposed) natural law from his (supposed)
legal positivism. Garrett tries to answer the question ofwhether Spinoza can be considered a
naturallawyer or not; he claims that one can reasonably deern Spinoza a naturallawyer, albeit
only in such a way as to consider that he breaks all ties with the tradition. A fourth possible
view is forcefully presented in the essay authored by Matthew J. Kisner (Chapter 8), to whom
Spinoza's practicallaws (and only these) look very similar to naturallaws in the same sense
that they were conceived by the tradition running from the Stoics, through Aquinas, Grotius
and Hobbes.
Part 111 follows up on the subject approached in Part 11, albeit focusing only on what
Spinoza means when he uses the tenn 'Iaws' . Spinoza speaks often of laws ofNature and of
naturallaws, but it is never easy to understand how they can exist together in a detenninistic
and necessitarian system ofphilosophy without conflicting with one another. The five essays
included here present different hypothetical solutions to this problem. The authors represented
here, however, are all sensitive to issues of civil law, and the essays assembled in this part
are particularly helpful for those interested in Spinoza's legal theory proper. Gerard Courtois
(Chapter 9) explains what Spinoza means by laws that express a necessity ofnature, as weil as
the ways in which civillaws are exceptions to such a necessity; Courtois attempts to compare
Spinoza's and Aquinas's conceptions of laws, in which he is able to find many points of
convergence, especially with regard to the way by which both authors, according to Courtois,
tend to undermine and undervalue the nonnativity of laws. Otto Pfersmann (Chapter 10)
expands on the notion of 'unreduced normativity' , that is, on what can be understood as legal
validity in Spinozistic terms. Donald Rutherford (Chapter 11) distinguishes between type-I
laws as laws of Nature (descriptive and necessitarian) and type-li laws as laws of reason
(nonnative ); natural rights are understood in tenns ofthe fonner, whereas the laws of human
nature are based on reason and apply to particular situations; Rutherford notes, however, that
this distinction is not always clear-cut, and he explores the ambiguity in the idea of acting
Spinoza and Law xxiii
according to the dictates ofreason. My own essay (Chapter 12) tries to explain that Spinoza's
laws of Nature are not descriptive but rather 'inscriptive' and that they are characterized by
features constituting the exact opposite ofprescriptive laws; however, it claims that there can
be no viable social and political system without prescriptions, which can be explained not as
traditional dictates ofreason but only as constructions ofthe imagination. Finally, Diogo Pires
Aurelio (Chapter 13) engages us in a comparison between Spinoza and Hans Kelsen, with a
special focus on the former's notion of the multitude as una veluti mente and on the latter's
concept ofthe Grundnorm; Aurelio's intention seems to consist in an attempt at explaining in
equal terms both authors' chain of normative validity, thus striking a balance between legal
bindingness and logical positivism.
The essays in Part IV address Spinoza's views on civil law and international law. Gail
Belaief (Chapter 14) provides an outline ofthe concept of civillaw in Spinoza, which is to be
understood both as an instrument ofthe state and as that which characterizes the organization
of the state. Manfred Walther (Chapter 15) presents a general overview of Spinoza's notions
of civillaw and internationallaw, which follow from some basic theoretical distinctions, such
as the difference between potentia and potestas, or the contrast between right and law. Hersch
Lauterpacht (Chapter 16) approaches Spinoza's views on international relations, and discusses
whether he is a Hobbesian-like founding father ofpolitical realism or a seventeenth-century
international lawyer in the line of Grotius and Pufendorf; the groundbreaking argument
of this essay is that Spinoza's views on international law are embedded with Grotian and
Machiavellian motive coexisting side by side. G.A. van der Wal (Chapter 17) follows up on
this argument and claims that Spinoza is a Machiavellian without an imperialist strategy for
the enlargement of power and a Grotian sustaining international peace on internal affairs of
state rather than on a law of peoples.
Finally, Part V contains four essays that are loosely organized around the question of the
rights ofindividual citizens within the general context ofnatural and civillaw. Paolo Cristofolini
(Chapter 18) c1arifies the twofold meaning of sui juris as both political independence and
epistemological freedom, and subsequently applies it to Spinoza's political realism and to
the role of rational men in political communities. David West (Chapter 19) develops Isaiah
Berlin's famous distinction between negative and positive liberty with regard to Spinoza;
however, rather than following Berlin's association of Spinoza with positive liberty and
with assaults on the liberal tradition, West goes on to establish that Spinoza's conception of
(positive) liberty condemns forms of interference that are intrusions on liberty even though
they are apparently compatible with negative liberty; West is then able to conclude that
Berlin's general assault on positive freedom misses the mark as far as Spinoza is concerned.
Theo Verbeek's essay (Chapter 20) tries to understand Spinoza's notion of natural rights.
His thesis is quite challenging to Spinoza scholarship: it claims that the notion of natural
right is straightforwardly incompatible with Spinoza's metaphysics, since it is neither right
per se (there is no normative pattern in Nature establishing rights and wrongs) nor natural
per se (there is no preconceived superior natural order of amoral or teleological kind). He
concludes, moreover, that Spinoza cannot be considered a member of the so-ca lied 'radical
Enlightenment',7 since all the subsequent political revolutions were based upon the idea of
natural rights attributing a special status in Nature to human individuals - something Spinoza
A term coined recently by Margaret C. Jacob (1981) and Jonathan Israel (2001).
xxiv Spinoza and Law
was keen on rejecting. Lastly, Justin D. Steinberg (Chapter 21) c1arifies how Spinoza's uses
of suijuris and alteriusjuris entail a paradox, which can only be overcome by the idea that he
conceives of liberty not as constituted by autonomy or citizenship in a respublica, but as being
sui juris in the sense of being causally powerful.
Together, the foregoing essays constitute a comprehensive survey ofthe existing literature
on Spinoza on law and related questions. It is not possible to contend that they contain anything
like a collective answer to the problems with which this introduction began. Nevertheless, they
do make substantial progress in reminding us ofthe philosophical significance of Spinoza's
thought for certain c1assic problems of legal theory.
References
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(ed.), The Law in Philosophical Perspectives, Dordrecht: Kluwer, pp. 23--45.
Alexy, Robert (2010), The Argument from Injustice: A Reply to Legal Positivism, trans. Bonnie L.
Paulson and Stanley L. Paulson, Oxford: Oxford University Press.
Belaief, Gail (1971), Spinoza s Philosophy of Law, The Hague: Mouton.
Curley, Edwin (1988), Behind the Geometrical Method: A Reading of Spinoza s Ethics, Princeton, NJ:
Princeton University Press.
Gueroult, Martial (1968), Spinoza: I-Dieu (Ethique 1), Paris: Georg Olms Verlag.
Hampshire, Stuart (1953), Spinoza, Harmondsworth: Penguin.
Hart, H.L.A. (1994), The Concept ofLaw (2nd edn), Oxford: Clarendon Press.
Israel, Jonathan (200 I), Radical Enlightenment: Philosophy and the Making of Modernity 1650-1750,
Oxford: Oxford University Press.
Jacob, Margaret C. (1981), The Radical Enlightenment: Pantheists, Freemasons, and Republicans,
London: George Allen and Unwin.
Kelsen, Hans (1992), Introduction to the Problems ofLegal Theory, trans. Bonnie Litschewski-Paulson
and Stanley L. Paulson, Oxford: Clarendon.
Macherey, Pierre (1998), Introduction aI 'Ethique de Spinoza: La premiere partie, la nature des choses,
Paris: PUP.
Meshelski, Kristina (2011), 'Two Kinds of Definition in Spinoza's Ethics', British Journal for the
History ofPhilosophy, 19, pp. 201-18.
Reale, Miguel (2000), Filosofia do Direito (revised edn), Silo Paulo: Saraiva.
Rocca, Michael Della (2008), Spinoza, New York: Routledge.
Solari, Gioele (1949), 'La dottrina deI contrato sociale in Spinoza', in Studi Storici di Filosofia deI
Diritto, Torino: G. Giappichelli, pp. 119-56.
Spinoza, Baruch (1972), Opera (4 volumes), ed. Carl Gebhardt, Heidelbeg: Carl Winters
Universitätsverlag.
Spinoza, Baruch (1985), The Collected Works ofSpinoza, ed. and trans. Edwin Curley, vol. I, Princeton,
NJ: Princeton University Press.
Spinoza, Baruch (2002), Complete Works, trans. Samuel Shirley, ed. Michael L. Morgan, Indianapolis:
Hackett.
Stewart, Matthew (2006), The Courtier and the Heretic: Leibniz, Spinoza, and the Fate ofGod in the
Modern World. New York: Horton.
Strauss, Leo (1997), Spinoza s Critique of Religion (1 st edn 1930), trans. E.M. Sinclair, Chicago, IL:
University of Chicago Press.
Walther, Manfred (1982), 'Spinoza und der Rechtspositivismus ',Archivfür Rechts- undSozialphilosophie,
68, pp. 407-19.
Spinoza and Law xxv
Yovel, Yirmiyahu (1992), Spinoza and Other Heretics, vol. I, Princeton, NJ: Princeton University Press.
Further Reading
Balibar, Etienne (1985), 'Jus, Pactum, Lex: Sur la constitution du sujet dans le Traite Theologico-
Politique', Studia Spinozana, 1, pp. 105-42.
Bellei, Cristiano Maria (2000), 'Dio, legge e potere nel pensiero politico di Spinoza', Rivista
Internazionale di Filosofia dei Diritto, 3, pp. 275-91.
Beyssade, Jean-Marie (2002), 'Norme et essence chez Spinoza', in Jacqueline Lagn5e (ed.), Spinoza et
la norme, Besan<;on: Presses Universitaires Franc-Comtoises, pp. 13-21.
Carp, J.H. (1921), 'Naturrecht und Pflichtbegriffnach Spinoza', Chronicon Spinozanum, I, pp. 81-90.
Courtois, Gerard (1973), 'Le ius sive potentia spinoziste', Archives de Philosophie du Droit, 18,
pp. 341-64.
Della Rocca, Michael (2008), Spinoza, New York: Routledge.
Duff, RobertA. (1903), Spinoza's Political and Ethical Philosophy, Glasgow: J. Maclehose and Sons.
Frati, Aurelio (1953), 'Diritto e diritto naturale nella meditazione spinoziana', Rivista Internazionale di
Filosofia deI Diritto, 30, pp. 209-25.
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pp. 149-80.
Hampshire, Stuart (2005), Spinoza and Spinozism, Oxford: Clarendon Press.
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norme, Besan<;on: Presses Universitaires Franc-Comtoises, pp. 107-19.
Lagree, lacqueline (2004), Spinoza et le debat religieux: Lectures du Traite theologico-politique,
Rennes: Presses Universitaires de Rennes.
Lazzeri, Christian (1987), 'Les lois de I' obeissance: sur la theorie spinoziste des transferts de droit' ,
Les Etudes philosophiques, 4, pp. 409-38.
Lazzeri, Christian (1998), Droit, pouvoir et liberte: Spinoza critique de Hobbes, Paris: PUF.
LeBuffe, Michael (2010), From Bondage to Freedom: Spinoza on Human Excellence, New York:
Oxford University Press.
Lefebvre, Alexandre (2008), The Image of Law: Deleuze, Bergson, Spinoza, Stanford, CA: Stanford
University Press.
Lloyd, Genevieve (1996), Routledge Philosophy Guidebook to Spinoza and the Ethics, London:
Routledge.
Macherey, Pierre (1989), 'Pour une histoire naturelle des normes' , in Michel Foucault Philosophe:
Rencontre Internationale, Paris, 9, 10, I1 janvier 1988, Paris: Editions du Seuil, pp. 203-21.
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Maspetiol, Roland (1960), 'L'Etat et le Droit selon Spinoza', Archives de Philosophie du Droit, 5,
pp. 157-74.
Matheron, Alexandre (1969), Individu et communaute chez Spinoza, Paris: Les Editions de Minuit.
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und Öffentliche Recht der Gegenwart, 32, pp. 77-98.
Menzel, Adolf (1907), 'Sozialvertrag bei Spinoza', Zeitschrift für das Privat und Öffentliche Recht der
Gegenwart, 34, pp. 451-60.
Menzel, Adolf (1908), 'Spinoza und das Völkerrecht', Zeitschrift für Völkerrecht, 2, pp. 17-30.
Miller, lon (2003), 'Spinoza and the Concept of a Law of Nature', History of Philosophy Quarterly,
20, pp. 257-76.
xxvi Spinoza and Law
Moreau, Pierre-Franyois (1977), 'Jus et lex: Spinoza devant la tradition juridique, d'apres le
depouillement informatique du TraUe politique', Raison presente, 43, pp. 53--61.
Moreau, Pierre-Franyois (1985), 'La notion d'imperium dans le TraUe politique', in E. Giancotti-
Boscherini (ed.), Proceedings 0/ the First Italian International Congress on Spinoza, Naples:
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The Foundation ofDemocracy Inverted', Studia Spinozana, 16, pp. 129-54.
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Part I
Spinoza's Theory of Law
[1]
SPINOZA/S THEORY OF LAW':'
HUNTINGTON CAIRNS
"All o1lr lIIodern philosophers, tholtgh ojten perhaps flllCOlIsciollsly, see
thrOflgh the glasses which Barllch Spilloza gro1lnd."-HEINE
Spinoza approached law from the point of view of both wisdom and sei-
ence. He inherited frorn the Scholastic tradition a sense of order, a way of
looking at society that was essentially legal. As a central figure in the great
scientific renascence of the seventeenth century he was dominated by the idea
of the necessary. At the same time, his experienee of life prompted hirn to
allow for the contingent, for those details of conduct whieh need not, or eould
not, be subsumed under general prineiples. He knew that scientific research
required the construction of ideally isolated systems in which the neeessary re-
lations of things in their essential aspects would be revealed. But no such con-
struction is ever final, particularly in the realm of human affairs ; there are
omissions and rearrangements which demand a eontinuous proeess of eorrec-
tion. Spinoza is surpassed by no other phUosopher in the steadiness with which
he kept before him both the requirements of his system and the importance of
what it had failed to embraee.
As the professed aim of his philosophy Spinoza had a praetical end in
view. Experience had taught hirn that all the common aims of soeiallife are
vain and futile; that they have no intrinsie value, and are good or bad :;olely in
the effect they have upon the mind. He resolved therefore, so he teIls us, to
inquire if there were anything so that if he diseovered and attained it he would
enjoy eontinuous, supreme and permanent happiness.1 All the scienees, he
maintained, have but one end: the attainment of supreme human perfection.2
He argued that the foundation of virtue is the endeavor we make to preserve
our own being, and that happiness eonsists exactly in the fact that a man ean
preserve his own being;3 to act in eonformity with virtue is to preserve our
* This artic1e is a chapter from a volume entitlcd LEGAL PHlLOSOPHY FROM PLATO
TO HEGEL, to bc published this winter by thc ] ohns Hopkins Press.
A convenient edition of the Latin works is BENEDICTI DE SPINOZA, OPERA QUOTQUOT
REPERTA SUNT, recognoverunt ]. Van Vloten et ]. P. N. Land, 3rd ed. 1913, 4 vols. A
translation of the principal works of interest to the legal student was publisbcd in tbe
Bohn Library: THE CHIEF WORKS OF BENEDlcr DE SPINOZA (Elwes rcv. ed. 1903).
Althougb it appears that thc number of commentaries dcvoted to Spinoza may some day
surpass those on AnstoHe, studies of bis legal thougbt are rare. The most important
studies in English are DUFF, SPINOZA'S POLITICAL AND ETHICAL PBILOSOPlIY (1903):
Pollock, SPINOZA'S POLITICAL DOCTRlNE, 1 CHRONICON SPINOZANUM (1921) 4S: Green,
LEcrURES ON TRE PRINCIPLES OF POLITICAL OBLIGATION § 32 et se~., 2 WORKS (1890)
355 et seq. References to the Latin works are given as "L. WORKS' ; to Elwes' transla-
tion as "ELWES". However, I bave dcparted from Elwes' version in many cases. I have
also utilized White's translation of thc ErnIc (4th cd. 1937) and the 1862 translation of
the 'rRAcrATUS THEOLOGICo-POLITICUS. References to thc letters are to Wolf, THE COR-
RESPONDENCE OF SPINOZA (1928).
1. 1 L. WORKS 3; 2 EL\VES 3.
2. 1 L. WORKS 6; 2 ELWES 7.
3. ETRIC, iv, 18.
4 Spinoza and Law
being as reason directs;4 such an effort of the mind is nothing but the effort to
understand, and this effort is the primary and sole foundation of virtue;5 to
understand, therefore, is the absolute virtue of the mind. 6 Thus man reaches
ultimate happiness through understanding.
This doctrine Spinoza carried over explicitly into his social and legal
views. His views, he held, contributed to the weIfare of our socia1 existence
since they taught social co operation and contentment. They contributed also
to the advantage of common society to the extent they teach us by what means
citizens are to be governed and led, not in order that they may be slaves, but
that they may free1y do those things which are best. 7
In all this there is Iittle to alarm the most timid. Wehave still to reach
the views that have been condemned as evil from the time of his own Amster-
dam synagogue to that of the present day.8 These views flow from the natural-
istic theory he held of the universe. This theory led hirn to assert that in na-
ture every man has as much right as he has power.9 Every individual is con-
ditioned by the rules of nature to live and act in a given way. Fishes, for ex-
ample, are naturally conditioned for swimming and the greater for devouring
the rest; therefore fishes enjoy the water, and the greater devour the less by
sovereign natural right.10 Taken abstractly it is certain that nature has the
sovereign right to do anything she can. In other words, her right is co-exten-
sive with her power.
As a corollary to this doctrine Spinoza was cautious in holding out any
hope for improvement in the social lot of man. The avowed aim of the Trac-
tatus Theologico-Politicus was to demonstrate that freedom could be granted
without prejudice to the public peace, and that without freedom religion could
not flourish nor the public peace be secure. 11 But the Tractatus Politicu.s bad
a different aim. SpiJloza was dissatisfied with the political theories of botb
philosophers and statesmen although he held that the latter, inasmuch as they
had had e.'Cperience for their mistress, wrote far more happily about politics
than the former. Philosophie political theory was too moralistic for Spinoza.
Since it conceives that men fall into vice by their own fault it generally takes
the form of a manual of abuse. It praises what is nowhere to be found in na-
ture and attacks what, in fact, exists; it never conceives of men as they are, but
as the philosophers would like them to be. As a result the theories are of no
practical interest and are completely Utopian. It is possible that the theories
of statesmen suffer from an equally serious but different defect. Statesmen
4. iv, 24.
E'l'BIC,
5. iv, 26.
ETHIC,
6. iv, 28.
ETHIC,
7. ii, 49.
ETHIC,
8. Walsh, The Mystery 01 Hausholer, Life, Sept. 16, 1946, p. 106.
9. TRACT. POUT., C. 2.
10. 2 L .WORKS 258; 1 ELWES 200.
11. 2 L. WORKS 87; 1 ELWES 6.
Spinoza and Law 5
may eonsult their own interests rather than those of mankind. For himself
Spinoza was persuaded that experience had revealed all possible common-
wealths which are consistent with men living in unity and also the methods by
which people may be guided or kept in fixed bounds. He found it difficult to
believe that anything new of service to mankind could be discovered. His
whole intention therefore is to demonstrate, not what is novel, but only such
things as agree best with practice. Of necessity, men are liable to passions. If
the well-being of a government depends on any man's good faith, if its affairs
cannot properly be administered unless those who conduct them will act
honestly, then it will be very unstable indeed. Spinoza turned here to a prin-
ciple at the basis of the United States Constitution.12 The public affairs of a
government should be so ordered that those who administer them, whether
guided by reason or passion, eannot be Ied to act treacherously or basely.18
In nature man is not, Spinoza insisted, a kingdom within a kingdom.
Nothing happens in nature which can be attributed to any vice, or flaw, of na-
ture; for nature is always the same and everywhere one, and her virtue and
power of acting are everywhere and always the same. 14 Spinoza hoped there-
fore for little improvement in the lot of man. If man lived a life of reason his
lot would be a happy one; but it is very seldom indeed that men live according
to the guidance of reason.15 Spinoza apparently anticipated that his doctrines
at the best would have only an indirect effect upon practical affairs. He ad-
dressed hirnself specifica1ly to philosophers and did not commend his thoughts
to mankind, for he could not expect that his ideas would please them. He
asked the masses not to read his book; they would gain no good themselves
and might prove a stumbling block to others.16
Spinoza gave much attention to the development of a method that would
yield the knowledge necessary for virtue. He wrote a still valuable study of
philosophie methodology in which he held that c1ear and distinct ideas, i.c.,
ideas formed by pure intelleetual activity, were the neeessary components of
adequate knowledge. He associated methodology with the theory of definition,
and held that the definition of a thing must inc1ude its proximate cause, und
also be such that from it all the properties of a thing ean be inferred,l7 But as
a sympathetic critic has pointed out, the roles are too abstract and formal to
have any value. 18 Logically they are worthless for they do not embody a posi-
tive theory of definition. In practice they are of little use because they do not
explain, in any given case, how the mind is to reflect upon and to analyse its
true ideas. They have a negative value, however. They are formal eanons of
criticisrn, inasrnuch as no forrnula which does not rneet tliern is a genuine defini-
tion. In the Ethic Spinoza adopted a so-called geometrical rnethod, with an
elaborate apparatus of a..'Ciorns, postulates, corollaries and propositions. How-
ever successful the Euclidian method rnay be in rnathematics, it suffers in
philosophy from a fatal defect, as a correspondent pointed out to Spinoza.19
From a mathematical definition we are able to deduce at least one property; if
we desire more properties then we must relate the thing defined to other things.
Spinoza's deductions from his definitions are not really strict deductions; he is
assuming other definitions which he has not explicitly stated. In truth,
Spinoza's method, as he himself recognized, is the general rnethod of natural-
ism. '\That he did was to exarnine those aspeets of nature which appeared to
him important for the purposes of his inquiry, and on the basis of the observa-
tions to formulate various propositions from which he made further deduc-
tions,20 correcting them, as his writings show and as he himself claimed, by ex-
perience when necessary.21
It is difficult to deterrnine the ex:tent of Spinoza's knowledge of positive
law. Probably it was not profound. In his library was a copy of Justinia~
was it the Institutesf-but no one has ever clairned that he read it. He knew
Hobbes' writings and probably Grotius' De iHre belli ac pacis, although of this
there is some doubt. He made no formal study of law, and so far as his life 1S
known, had Httle association with jurists.22 He had, however, as his writings
reveal, a complete eommand of the traditional law of the J ews, and since for
J udaic thought law has always been a eentral idea, its signifieance was early
impressed upon him. Throughout his writings he kept his theory of law at the
initial stages of speculation. He was occupied with the general eoneeptions
and the basic postulates. He did not follow the consequences of his theory to
the subsidiary levels to which Hobbes, for example, conducted his own. It is
c1ear that his grasp of Judaic law would have permitted Spinoza to follow this
course if he had so chosen. That he did not do so must therefore be attributed
to choice and not to lack of knowledge. Perhaps he was guided in this action
by the consideration that at the level at which he formulated his theory the doc-
trine of necessity was fully operative, that excursions into what appeared to be
legal minutiae would conduct him into the realm of the arbitrary.
CONCEPT OF LAW
theory which conceives of Iaw as a form of sodal control, as the device which
has as its aim the ordering of human behavior through coercion.
Three proper objects of desire were acknowiedged by Spinoza: to know
things by their first causes; to control our passions, or acquire virtuous habits j
to pass our lives in safety and in heaIth. 23 Tbe means of acquiring the first
two were in the nature of man hirnself, so that their acquisition lies entirely
within our own power or depends on the Iaws of human nature alone. For this
reason it may be conc1uded that these gifts belong to no nation in particuIar,
but are and always were common to the whole of the human race. But the
means which insure seeurity of life and good health reside chiefly in external
circumstances. They depend for the most part on the current of e..,<ternal
things, of the causes of which we are ignorant; we are inclined to regard them
as gifts of fortune. Neverthe1ess human forethought and watchfulness are of
great avail in attaining security of life. Reason and e..,<perience both show no
more certain means of reaching this object than the establishment of a society
governed by definite laws, occupying a particular territory, with the strength
of a1I the members concentrated in one body. It takes great ability and eare
to form and preserve a soeiety, and one which is founded and administered by
prudent and watchful men will be more secure and lasting than one ruied by
men without skill. Nations are therefore particularly distinguished from one
another by the institutions and laws under wh ich they live.
Spinoza has accomplished several imporiant objectives in this theory of
the strueture of the soeial state. He has carried over into politics the doctrine
that the foundation of virtue is se1f-preservation. At the same time he has
carefully exc1uded morality from his political theory. He admits that the
acquisition of virtuous habits is a legitimate end; but their attainment is some-
thing for each man to achieve for himself if he can. Morality is not, in Spinoza's
theory, the business of the state, which is concerned solely with security. This
is, it need scarcely be remarked, a complete repudiation of the Platonic tradi-
tion; Spinoza is "not content to rave with the Greeks."24 He has deliberately
assoeiated hirnself with the doetrines of Machiavelli, Bodin and others that the
origin and end of the state is security.25 In modern days the idea has been put
fonvard with his customary pithiness by Bagehot: "The compaet tribes win.
. . . Civilization begins because the beginning of civilization is a military ad-
vantage."26 Spinoza's statement of the theory was his own, adapted to his
philosophy as a whole, and led specifically to his idea of law.
The root idea of law (le%) in Spinoza's system is uniformity. This al-
lows hirn to connect the idea with the laws of the universe at one extreme and
with the ordinances of the community at the other. In its most abstract or ab-
solute sense the word law means, he says, that in virtue of which things of the
same species act in a certain determinate manner. This comes about either
because of natural necessity or human decree. A law which depends on natural
necessity is one which follows necessarily from the very nature, or definition,
of the thing. A law which depends on human decree, and Spinoza thinks it
more correctly called an ordinance (Itts), is prescribed by men for themselves
and others in order to live more safely or conveniently, or for other reasons.
He offers as examples of laws which depend on natural necessity a law of me-
chanics and a psychologicallaw of memory. But when men cede or are forced
to cede a right (ju..s) which they have by nature, and bind themselves to a cer-
tain manner of living (ratio vivendi), this depends on human decree.27
However, Spinoza was a determinist. He readily admitted that all things
are predetermined by universal natural laws to exist and operate in a given,
fixed and definite manner. How then can a certain dass of laws depend on
human resolution? Spinoza gives two answers. First, because man, in so far
as he is apart of nature, constitutes to this extent apart of the power of na-
ture. If something follows necessarily from the necessity of human nature
(that is, from nature herself conceived as acting through man) it follows, even
though it be necessarily, from human power. Hence, Spinoza argues, laws for
the regulation of society depend on man's decree. Second, because we must
define and e.'Cplain things by their proximate causes. To take a wide view and
regard events as always determined, can be of little aid to us in arranging and
forming our ideas about particular objects. Moreover, we are obviously
ignorant about how things are ordained and linked together. Hence for prac-
tical purposes it is necessary for us to consider things as contingent. So far
as this argument is concerned Spinoza holds that the laws of a nation are sub-
ject to the operation of the principle of detenninism; however, we must act
when we devise them as if the principle did not apply.
So far Spinoza has been discussing law in its abstract or absolute sense.
In common speech, he observes, it is taken to signify a command (mandat1t11~),
which men can either obey or neglect, for it restrains human nature within
bounds that were exceeded in the state of nature, and therefore lays down
no rule beyond human strength. Spinoza advances a theory to account for
the command idea of law. He argues that few perceive the true object of
legislation, and that most men are almost incapable of grasping it. Legislators
therefore, in order to secure obedience to law, have wisely put forward an-
other object, very different from that which necessarily follows from the na-
ture of law. They promise to the masses in return for obedience that which
the masses chiefiy desire ; they threaten violators with that which violators
chiefiy fear. They endeavor, in other words, to restrain the masses as a horse
is checked with a curb. Thus the word law is chiefiy applied to the modes
of life enjoined on men by the sway of others; those who obey the law are
said to live under it and to be under compulsion.
It is c1ear that Spinoza had before hirn the conception advanced by Hobbes
that "law, properly, is the word of him that by right hath command over
others".28 He held it to be an unsatisfactory concept; in fact, men Iiving un-
der law so conceived were in a kind of slavery. A man who renders to each
his due because he fears the gallows, acts under the sway of others and can-
not be caIIed just. A man is just only if he gives to each his due because he
understands the true reason for laws and their necessity, and acts from a firm
purpose and of his own accord. Spinoza took this to be the meaning of St.
Paul's statement that those who live under the law cannot be justified by the
law.
Through this analysis Spinoza arrived at his own conception of law: A
plan of living which serves only to render life and the state secure, prescribed
by the community under the sanction of a penalty.29 In its original formula-
tion Spinoza omitted, in accordance with his criticism of the Hobbes concept,
the idea of penalty. Further refiection apparently convinced him that a puni-
tive sanction was necessary to complete the idea, aIthough, he endeavored to
save something from his original argument by maintaining that men should
be moved to obey the law by hope and not fear; they should be led to do their
duty from good-wiII and not compulsion. When the state has to resort to
punishment it is a sign that it has failed in one of its major tasks.
Spinoza's idea of law, although it represents a repudiation of Hobbes'
theory that it is a command, is nevertheless not original. Actually, it was one
of the aspects from which Aquinas viewed law. "Law," Aquinas wrote,
"denotes a kind of plan directing acts toward an end."30 But the interpre-
tation that Spinoza put upon bis conception differed radically from Aquinas'.
Here Spinoza was a Hobbesian. The community was free to impose any
plan it Iiked upon itself.31 It was true that some plans would work better
than others, but in any event the choice of the plan was a matter for the com-
munity to decide. This could not be admitted by Aquinas. All plans to be
valid were to be measured by the common good.
DIVINELAW
From the tradition of legal speculation Spinoza inherited a variety oi
types of law which he proceeded to sort out. Hobbes had eliminated divine
28. 3 WORKS 147 (1839-45).
29. 2L.WORKS 136; 1 ELWES 59; 1 L.WORKS 21O,2ELwEs 214.
30. SUMMA THEOLOGICA, I-lI, 93, Art. 3.
31. 2 L.WORKS 11-13; 1 ELWES 298-300.
10 Spinoza and Law
law and the itts gentitlnt by identifying them with naturallaw. This solution
was not satisfactory to Spinoza, it may be assumed, since it failed to account
for the idea of necessity. He therefore reinstituted divine law, but gave the
idea his own interpretation.
The Divine Will had, from the earliest days of Greek thought, been as-
sociated with the notion of law. "All human laws are nourished by the one
divine law", Herac1eitus had written.S2 This conception had been insisted
upon by the Stoics, whose views were accepted by Cicero.83 It also came into
Western thought through the Hebrew tradition, as the writings of Philo34
bear witness. The rise of Christianity gave the idea a special emphasis, and
from the time of Lactantius35 and St. Augustine3 6 onwards it was customary
to distinguish between eternal law and human law. But the problem of
natural law still remained. Behind it was the great authority of Aristotle, Ci-
cero and J ustinian, and it would therefore be unthinkable to dismiss it. How
was the Church to maintain the authority of the divine law, which enabled
her to speak with supremacy on matters of faith and morals ? Not until the
twe1fth century was the answer given with c1arity. In anticipation of Hobbes,
the Romans had identified their itls gentittl1~ with the law of nature; and the
Church in a similar move identified the law of God with the natural law in
the Decretum of Gratian.37 This step was taken, Pollock writes, "with a
thoroughgoing boldness which almost deserves the name of genius".S8 Gra-
tian found the archetype of natural law in the Golden Rule, "Do unto others
what thou wouldest wish others to do unto thee"; he held also that natural
law was immutable, that it was in agreement with the Scriptures, that it is
supreme just as the Divine Will and the Scriptures are supreme, and that
customs and laws contrary to it are void. However, this solution also raised
difficulties which Gratian and others attempted to meet. If natural law is con-
tained in the law of the Scriptures, why is much of that law no longer obeyed?
Again, if natural law is immutable, why are conditions allowed to exist which
are contrary to that law?S9 The answers to these questions were worked out
with great ingenuity, but the result was that Aquinas found it necessary to
c1assify law into four types-the eternallaw, the naturallaw, the Divine law,
and the human law. Divine reason governs the tiniverse and is the eternal
Iaw; natural law is the participation of the rational creature in the eternaI
law; Divine law is the law of God as revealed in the Old and N ew Testaments.
Divine law is not in opposition to natural law, but permits men to share in
the eternallaw in a more perfect manner.40 By the time of Hooker, Aquinas'
theory, with various modifications, had become a commonplace41 anel was
followed by Grotius.42
Spinoza disearded these classifieations, but he was nevertheless influ-
enced by them and by the reasons which had led to their formulation. He
defined the Divine law to be that which regards the highest good, the true
knowledge of God and love.43 The love of God is tlie supreme good, the ulti-
mate end and aim of man; hence he alone lives by the Divine law who loves
God, not from fear of punishment, but solely beeause he has knowleelge of
God or is convineed that the knowledge and love of God is the higbest good.
The first precept of the Divine law, indeed its sum and substanee, is to love
God unconditionally as the supreme good. Spinoza, like Aquinas,44 recog-
nizes the existence of both a natural Divine law and a positive Divine law.
Spinoza gives the laws of Moses, whieh he holds to bave been ratified by
prophetie insight, as an example of the latter. But his main concern, at tbis
point, is with natural Divine law.
He holds that it is universal or common to an men, for it can be deduced
from universal human nature; it does not depend on the truth of any his-
torical narrative whatsoever; it does not demand the performance of eeremo-
nies; its highest reward is the law itse1f, name1y, to know God and to love
Him of our free choice; its penalty is the absence of this knowledge and love
and the presence of an ineonstant and wavering spirit.
Here Spinoza comes to his central point. He denies that we can con M
ceive of God as a lawgiver or potentate ordaining laws for men. When God
is described as a lawgiver or prinee, and styled just and merciful, it is merely
concession to popular understanding and the imperfection of popular knowl-
edge. In reality, God acts and directs a11 things simply by the necessity of
His nature and perfection. His decrees and volitions are eternal truths, and
always involve necessity. For example, the necessity of a triangle's essence
and nature, in so far as they are conceived of as eternal verities, depends
solelyon the necessity of the Divine nature and intellect i from eternity He
has decreed that three angles of a triangle are equal to two right angles.
Henee, if God said to Adam that he was not to eat of the forbidden fruit, ;t
would have been a contradiction for Adam to have eaten of it; it would have
been impossible that he should bave so eaten, for the Divine command would
NATURALLAW
In Hobbes' theory naturallaw was part of the science of ethics. Natural
laws were precepts which had as their aim the preservation of human life.
Law properly is the word of him that by right has command over others.
Hence, naturallaws are not properly laws, uniess we hold them as delivered
in the word of God, that by right commands all things. Naturallaws are, in
fact, apart from the theological reservation, nothing but dictates of reason.47
This view of natural law was adopted by Spinoza. When he speaks of
"natural right" he uses the phrase ius natlwae ;48 when he refers to the t'laws"
or "ruIes" of nature in accordance with which everything takes place he em-
ploys the phrase leges natterae.49 But when his topic is "natuml law" in the
sense of Hobbes' lex natteralis he takes his cue from Hobbes and abandons the
word "law" altogether. As a substitute he uses the phrase "dictates of nature"
(dietamina rationis)50 or "guidance of reason" (duettes rationis) .GI Accord-
ingly, the idea is treated in the Ethic and not in the political treatises.
Spinoza's justification of the theory of the dictates of reason is carefully
worked out, and with him it is completely a moral doctrine; however, it is as-
sociated with his theory of law. He held that a man is necessarily always sub-
j ect to passions, and that he follows and obeys the common order of nature,
accommodating himself to it as far as the nature of things requires.1l2 Hence
men do not necessarily follow the dictates of reason although those dictates
are not difficult to discover. 53 Reason does not demand anything that is op-
posed to nature. It therefore demands that everyone is bound to seek his
own profit; i.e., what is truly profitable to him, that really leads him to greater
perfection. In its absolute sense it means, as Hobbes had previously held,
that everyone should endeavor, as far as he is able, to preserve his own being.
From these premises Spinoza at once deduced some principles: (1) the foun-
dation of virtue is that endeavor itself to preserve our own being, from which
it follows that happiness consists of the fact that a man can preserve his own
being; (2) virtue is to be desired for its own sake, nor is there anything
more excellent or more useful to us than virtue, for the sake of which virtue
ought to be desired; (3) all persons who kill themse1ves are impotent in mind,
and have been thoroughly overcome by external causes opposed to their na-
ture; (4) we can never free ourselves from the need of something outside
ourselves for the preservation of our being, and we can never live in such a
47. LEVIATHAN (1651) c.15 ad fin. ELElIiENTS OF LAW 58, 74 (1928). Hobbes
bad inherited this theory from Grotius and others. DE JURE BELL! AC P ACIS LIDRI TRES
Bk. I, c.l, X (1625).
48. 2 L.WoRKS 6.
49. Ibid.
50. 1 L.WORKS 196.
51. 1 L.WORKS 199.
52. ETHIC 184.
53. ETHIC 193-5.
14 Spinoza and Law
manner as to have no intercourse with objects which are outside us; (5) men
who are governed by reason (i.e., seek their own profit) desire nothing for
themselves which they do not desire for other men, and thus are just, faithful
and honorable. This leads to the doctrine that the end of the State, in accord-
ance with the dictates of reason, is not domination, but liberty.54
ject one's seH wholly to the judgment of another, and consequently that the
civil state is repugnant to reason.o s To this objection Spinoza gives several
answers. So long as men are moved primarily by passions reason cannot hold
that they should remain independent. Reason teaches altogether to seele
peace, and peace cannot be maintained if the commands of the State are not
obeyed. But above all it should be remembered that the ultimate end of the
State is not dominion, nor restraint by fear, nor the exaction of obedience j
on the contrary, its end is to free every man from fear, so that he may live
secure1y; in other words, to make it possible for him to possess in the best
sense his natural right to existence and work without injury to hirns eH or
others. It is not the end of the State to change men from rational beings into
beasts or automata. Its end is to enable them to deve10p their minds and
bodies in security, and to employ their reason unshackled so that hatred, anger,
deceit, and strife should cease. In fact, the true aim of the State is liberty.üo
But this is only part of the answer. Although right may be coextensive with
power, power, in fact, in the civil community is limited, or, in modern phrase.
ology, there are limits to effective legal action. There are some things which
men cannot be induced to do, either by rewards or threats. It is impossible
to make a man believe against his judgment; no rewards or threats can bring
a man to believe that the whole is not greater than its part. A man cannot be
compelled to love one whom he hates or to hate one whom he loves. There
are some things so abhorrent to human nature that they are regarded as
actually worse than any evil; for example, that a man should be a witness
against hirns elf, or torture hirnself, or kill his parents, or not strive to avoid
death. We can still say that the State has the right or authority to order
these things; but this amounts to no more than that a man has the right to be
mad or delirious. Finally, the power of the State is limited absolutely by
the fact that if it behaves unwisely men will conspire together to overthrow it.
The State, to maintain its independence, is bound to preserve the causes of
fear and reverence, othenvise it ceases to be aState.
With this argument Spinoza executes a return in part, at least, to the
position of Aquinas, that to be valid all plans for the community must be
measured by the common good. Spinoza has attempted to show that there
is an inescapable connection between power and its proper exercise. If power
is wie1ded bIindly, if it is exercised without regard to what men hold to be ab·
horrent, it will defeat itself. Since the end of the State is peace and security
of life, power is exercised for the best where men pass their lives in unity
and the laws are kept unbroken. However, this is mere1y Spinoza's concep·
tion of the ideal State. He would not affirm that power exercised contrary
to that end was not a legal exercise of power; he would not say, as Aquinas
did, that an unjust law was no law. A free multitude, he argued, is guided
more by hope than by fear; a multitude subject to adespot is guided mOre
by fear than hQpe. Nevertheless between the dominion created by a free
multitude and that gained by adespot, if we regard generally the right of
each from the point of view of the science of politics, we can make, he held,
no essential distinction. Their ends and the means to the preservation of each
are very different; but so far as power, and hence right, is concemed, they
belong to the same species.60
On the basis of this poIitical view of society Spinoza came to bis theory
of positive law. It was a mixture of his own thoughts and those of bis
predecessors. It was also destined to be one of the most influential theories
ever proposed; it contains the root idea of the Kantian system, and thus of all
nineteenth century metaphysical and twentieth century sociological jurispru-
dence.
He concurred in the Hobbesian idea that the supreme authority in the
State has the sole right to lay down laws, to interpret them, and to decide
wh ether a given case is in conformity with or in violation of the law. 61 He
followed the theory of Aquinas and others that laws must be founded on
reason,02 and that the public welfare is the supreme law to which all laws
should be made to conform.63 He anticipates Bentham in his insistence upon
the point that the end of law is the security of the individual and the State.64
At this point he reaches his own doctrine of the State as one mind. Without
law the State is impossible. When aState is formed the power of making laws
must be vested either in all the citizens, Or in some of them, or in one man.
Men's free judgments are diverse and each believes that he alone'knows every-
thing; it is therefore impossible that alI should think alike in any subject and
speak with a unanimous voice. Hence it is impossible for men to preserve
peace unIess individuals abdicate their right of acting entirely on their own
judgment. Spinoza is careful to point out here that the individual cedes only
his right to act, not the right to reason and judge.65 When the right to act
is ceded to the State it permits it to be guided as by one mind. It is the law
which fulfills this function, but the laws must, as he has insisted, be founded
upon reason. 66 Spinoza's use of the phrase "one mind" is, of course, a figura-
tive one. Just as the human body is guided by one mind so must the body of
the state be guided by one mind. In the realm of the State the one rnind is
the collective will which rnust be taken to be the will of al1. 67
Consequently,law in the State is a harmonizing of wills in the interests of
freedorn. Men are not born fit for citizenship but must be made so. If men's
wills are not harmonized, if men are permitted in dvil society to pursue tbeir
own ends, then it would be difficult to distinguisb that society frorn astate of
nature.68 Although Hobbes beld that law was a fetter Spinoza argues that
it is the way to freedom. Peace and freedorn cannot be attained unless the
general laws of the State are respected. Therefore the more a man desires
freedom tbe more constantly will be respect the laws of his country, and
obey tbe commands of the sovereign power to which he is subject.OD Spinoza
had perhaps learned this lesson early in life frorn the Judaic tradition which
teacbes as a religious ideal, not freedom from the law, but freedom in the law.
The idea of law as the instrument through which wills are harmonized for
freedorn is customarily attributed to Kant; in any event the idea is still with
uso It is a fundamental element in today's jurisprudence. llKant's conception
of the legal order", Pound writes, <las a reconciling or harrnonizing of wills
in action by means of universal rules becornes in the hands of the sodal utili-
tarian a compromise or adjustment of advantages, a balance of interests. In
the hands of econornic realists it becomes a reconciliation or harmonizing of
wants-'the satisfaction of every one's wants so far as they are not outweighed
by others' wants'. In the bands of the positive sociologists it becomes an
adjustment of soclal functions. In the hands of psychological sociologists it
becomes a reconciling or harmonizing or adjusting of claims or demands or
desires.''7O None of the schools of jurisprudence since Kant revived or de-
veloped the idea bas escaped its influence.
Spinoza, like bis predecessors, recognized that tbe affairs of human be-
ings could not be regulated entirely by laws. He bad been instructed by the
Judaic tradition that the subtle matters of morality were altogether beyond
the reach of the law; they were rnatters which were left to the heart. He
recognized specifically that the laws give weak assistance if the continua-
tion of public liberty is dependent upon tbern alone. 71 Things should be so
arranged that tbc citizens of tbe state will always do their duty spontaneously
rather than under tbe press ure of laws; when we have to resort to laws tbey
should be so framed that the people will be moved to obey them from bope and
not fear.72 He held sumptuary laws to be not only vain, but a stimulation to
the desires and lusts of men.73 "We are ever eager," Ovid had written long
before, "for forbidden fruit, and desire what is denied." The constitution is
the soul of the dominion, and must be defended by both reason and passion.
If it reHes only on the help of reason it is weak and easily overcome. 74 The
aim of Spinoza's thought was to devise the principles by which a dominion
would be so ordered that of necessity, rulers and governed alike, whether
they wiII or no, should do what makes for the general welfare.75 To guard
against an evils and form a dominion where no room is left for deceit; to
frame institutions so that every man, whatever his disposition, will prefer pub-
lic right to private advantage-that, says Spinoza, is the task and that the toiI.76
It is the dream no less of the closet philosopher than of the men of action as
the writings of those who devised the American Constitution show.
From the Reformation Spinoza had inherited an individualistic tradition
wbich no doubt helped to color bis views on liberty. Nevertheless there were
definite limits to the Iiberty which he aIlowed the citizen. His most impor-
tant ideas on this subject are to be found in his doctrine of obedience. He
insisted that it was the citizen's duty to obey the law even if he believed it
to be a bad law. To hold otherwise could lead only to the ruin of the State.'1'7
What the State decides to be good must be held to be so decided by every in-
dividual. Hence, however iniquitous the subject may think the State's deci-
sions, he is nonetheless bound to execute them. But what should the subject
do if he is ordered by the State to disobey the word of God? Spinoza answers,
obey God when you have a certain and indisputable revelation of His wiII.
But men are very prone to error on religious subjects and on tbis pretext
might assurne unbounded license, and thus set at naught the sovereign power.
The only remedy is for the State to have supreme authority to make any laws
about religion it sees fit. 78 Actually this is not a great concession, for the
mind, so far as it makes use of reason, is dependent only on itself and not on
supreme authorities. Hence the true knowledge and love of God cannot be
subject to the dominion of any one.79 This doctrine bad also been advanced
in substance by Calvin. He had held that it was the duty of the citizen to
obey bad rulers, for an unjust ruler is a fulfillment of God's purpose to
punish people for their sins. In CaIvin's theory the citizen was also to give
priority to God's commands over the laws of the State; but here Spinoza
parted company with hirn. The Calvinistic doctrine, not by direct statement,
but by clear inference, permitted the citizen to judge of such matters. 80
CONCLUSION
Since Spinoza did not live to complete his system he can scarcely be
blamed for the gaps wbich it contains. We have, for e.xample, only a hint of
bis theory of legislation and how he would have developed it we do not know.
It would have been coupled, we can be sure, with his idea that might makes
right, just as his doctrine of freedom of thought was coupled with it. A
State should, for the reasons he urged, allow freedom of thought; but as a
matter of fact it has to allow it, since it lacks the power to control it. In the
ethical field he saw his subj ect as a whole and in all its detail. He worked it
out as a logical system with a finish which cannot fail to command admira-
tion. He was not so successful with his jurisprudence. Law was at the basis
of his political thought, and he isolated elements of the legal process which
are of prime importance. But none of them was analyzed to the degree with
wbich he studied his ethical ideas. He kept to a neutral path so far as the
doctrines of the previous philosophers went, and he at no time lost sight of
the demands of practical affairs. If he had lived to perfect his thought we
would, in all probability, have been given a jurisprudence of the stature of
his ethics. Wehave been given instead a jurisprudence which anticipates the
most influential jurisprudence of modern times.
[2]
The Power of Law. Spinoza's Contribution to Legal Theory*
Hans Gribnau
1. Introduction
Contrary to popular belief, Spinoza's philosophy plays a very important role in legal and
political thought. His warning that an over-reliance on the malleability of society through laws
is counterproductive shows that his philosophy has a very topical significance: 'qui omnia
legibus determinare vult, vitia irritabit potius, quam corrigibit'.1 It will be shown below that
Spinoza, who took a keen interest in the political events of his time, offers us interesting
insights into fundamental constitutional categories requiring a continuous reflection, such as
the relationship between state and society, the separation ofpowers in constitutionallaw, and
the rule of law. But first, Spinoza's legal theoretical concepts will be dealt with in the light of
some notable aspects ofhis political philosophy.
As is known, Benedict de Spinoza (1632-1672) is an outstanding example of a thinker
whose life and work coincide. He was a modest and sober-living philosopher who, unlike
what is often thought, remained with both feet on the ground. Before and after his expulsion
from the Portuguese Jewish community (1656), he kept in contact with liberal-minded circ1es
in Holland (sympathizers of the Outch republican magistrates and of the brothers Oe Wirt).
He interrupted his work on his magnum opus, the Ethics, in order to plead in favour of a
tolerant society in the Theological-Political Treatise (TTP), without ever being an uncritical
mouthpiece ofthe patricians.
Spinoza's political philosophy - the starting point of his considerations on legal theory -
is systematically set out in the highly readable Political Treatise (TP),2 a clear and logical
work based explicitly on experience and not on an ideal image of man and society. It 'is a
deduction ofthe state from the laws ofhuman nature', by which Spinoza intends to go beyond
'experience as an accidental starting point'.3 He applies the genetic constructive method: one
reaches the understanding of the essence of a phenomenon by first decomposing it in its
(essential) parts - i.e. its immediate causes. 4
Originally published as Hans Gribnau, 'Oe macht van het recht, Spinoza's bijdrage aan de
rechtstheorie' , Nederlands Juristenblad 67, nr. 43 (1992): 1443-1451. English translation by the author.
I Spinoza, Thealagical-Palitical Treatise, chapter XX: 'He who seeks to regulate everything by law
will aggravate vices rather than correct them' (translation by Samuel Shirley, in Spinoza, Camplete Warks,
lndianapolis: Hackett, 2002, p. 569).
2 Spinoza, Palitical Treatise, in Spinoza, Camplete Warks. Henceforth cited as TP TT.3, which means
chapter TI, paragraph 3.
H. de Dijn, 'Ervaring en theorie in de staatkunde. Een analyse van Spinoza's Tractatus Paliticus',
Tijdschrift vaar Filasafie 31 (1970), pp. 38 and 44.
4
A. Matheron, Individu et cammunaute chez Spinaza, Paris 1969, p. 318.
22 Spinoza and Law
In chapter four of the TTP, Spinoza states that 'the word lex taken in its absolute sense [as
such], means that according to which each individual thing - either in generalorthose of
the same kind - acts in one and the same fixed and determinate manner' . A law designates a
manner of common behaviour within a group of individuals. Afterwards, he elucidates that a
law may depend either on nature's necessity or on adecision ofthe human will.
As to the first category, these laws follow from the nature or definition of a particular thing.
They depend on 'nature's necessity': nature compels these individuals to behave in a certain
way. This type of laws constitutes the category of naturallaw. Such laws - e.g. physical and
chemicallaws, but also psychological and sociologicallaws - cannot be created or abolished
at will. In addition, there is another type of laws which depend on human will; laws that men
ordain for themselves and for others with the purpose ofmaking life more secure and more
convenient, or for other reasons; such laws are more properly called iures (ordinances).
Let us focus on the first category of laws - the laws of nature. According to Spinoza, the
supreme law ofnature is that each thing endeavours to persist in its present being, as far as in
it lies. 5 The highest naturallaw indicates a way ofbehaviour that depends on the 'necessity of
nature', for it is a law of nature.
The tendency of all things towards self-preservation and survival is therefore a natural fact
that is not dependent on a human decision. Since this striving is an objective empirical fact,
Spinoza concIudes that every individual has the 'sovereign right to do all that it can do; i.e.
the right ofthe individual is co-extensive with its determinate power' (TTP XVI, p. 237). The
striving for self-preservation, which must be conceived of as an objective rule applicable to
all things, is the basis of Spinoza's definition of (individualized) natural right: the rules [laws]
governing the nature of every individual thing, according to which we conceive it as naturally
determined to exist and to exist in a determined way. Hence, the natural right of an individual
thing is co-extensive with its power to survive - and not just physically! Spinoza's basic thesis
in this naturalistic approach is that right is coextensive with power. In sum: someone's right
extends as far as his power also extends (TP 11.3-4).6 This right of each individual, insofar as
he is part of nature as a whole, enables hirn to act on all the other parts of nature. Since the
individual's natural right is determined by the laws ofnature that govern human behaviour,
this concept has no specific moral connotation.
What determines specifically the ability to self-preservation and an individual's natural
right? Spinoza answers this question in his anthropology (which is based on his metaphysics):
people are naturally subject to affects (defined as affections ofthe body in E3D3) or passions,
which are passive affects (harmful to both individuals and societies).7 In the Ethics, Spinoza
TTP, chapter XVI, p. 237. In E3P7, Spinoza states that the conatus for self-preservation is the
actual essence of all things (not only of human individuals). Spinoza clearly ditfers from Hobbes tor whom
the supreme (normative) law ofnature is a precept ofreason (Leviathan, Chapter 14).
This power is determined, tor instance, by physical strength, money, but also by one's influence on
other people's behaviours, by the compassion that one can arouse in others, etc.
7 Terms such as passions, emotions, or natural inclinations are sometimes used in lieu of the more
technical-philosophical term 'affects' because there is no precise equivalent in our spoken language.
Spinoza's affects can be passive and active, even though he does not apply this distinction consistently in
the TP.
Spinoza and Law 23
sets out in detail how human affects operate and how they lead to social interaction. For
instance, besides fear, hatred and jealousy (all passive affects) there are also positive affects
like fondness, hope and compassion that may entail survival, self-affirmation and a successful
life. These passions and desires are much more influent than reason with regard to human
functioning and to human interaction. This means that the power and the natural right ofthe
individual are determined by his passions (TP [1.5).
Oue to their passive affects, men are necessarily in conflict with one another insofar as
they perceive themselves as competitors. To the extent that they are constrained by anger
and hatred, men are enemies by nature (TP [1.14). However, they are also dependent on one
another, for an isolated human individual cannot defend hirnself against all. Without mutual
assistance, men are unable to preserve themselves and to develop their mental abilities (TP
11.15). Hence, they are naturally inclined to co-operate (which does not mean that they do so
harmoniously). [n the state ofnature, man's conatus forces hirn to choose the lesser evil, i.e.
a smaller loss of power and freedom, when cooperating in a society in which he submits to
the constraints imposed by the authorities. [n practice, therefore, we observe empirically that
people live together in a society despite their differences and their often conflicting interests.
[n the state of nature, in fact, the natural right of an individual is nothing but a virtual right.
Without the state, it does not exist. [n such a condition,8 there is no cooperation between
individuals, which makes it impossible for an isolated man to preserve hirnself, let alone
develop his intellectual faculties. It is in this sense that the individual has no power and,
therefore, no right. However, people always live and work together in order to enable their
survival. People are naturally inclined to unite in a collective body where one accepts that
one has to hold back one's natural inclinations. And the more men unite in such a collective
body, the more they increase their power to survive. The more they join forces, the greater
their number, the more rights they have in common (TP 11.15).9 The idea that this collective
power implies more right reflects the naturalistic argument that makes up the premise of
Spinoza's political philosophy in general, since the rights ofindividuals are coextensive with
their powers.
Cooperation creates actual power and right by merging potencies. Spinoza refers to such a
union of forces as the communal right. People cannot survive without holding their rights in
common, without some common code of law (TP 1.3). [n turn, this communal right 'which
is defined by the power of the multitude, is usually called sovereignty, and is possessed
absolutely by whoever has charge of affairs of state' (TP [1.17).
The state is nothing more and nothing less than an individual composed of individuals (the
citizens ).10 The right ofthe state or ofthe supreme authorities is not the power of each singular
individual but rather the power ofthe citizens collectively who are guided as it were by a single
mind. In other words, the power of astate consists in the unity that it guarantees with regard to
the vital aspects ofthe community: no citizen decides for himselfwhat is fair or unfair; rather,
the commonwealth decides what is to be just or unjust on behalf of every citizen. Citizens
must submit their will to that of the commonwealth. The will of the commonwealth should
be deemed the will of all, which implies that what the commonwealth 'decides to be just
and good must be held to be so decided by every citizen' (TP III.5). Consequently, Spinoza
defines justice as 'a set disposition to render to every man what is his by his civil right' (TTP
XVI, p. 244). The state has the exclusive competence to decide aboutjustice and injustice; it
determines the bonum commune.
The communal right of the state is possessed absolutely by whoever has charge of affairs
of state (TP 11.17) and holds the monopoly of (physical) violence. This public body - an
assembly or an individual- then confers 'civil' rights (jura civilia) on citizens. This creates
the legal order and determines the limits to the behaviour ofthose citizens that are driven by
passions. Thus 'the state installs as it were an external reasonableness'; 11 human irrational
behaviour is constrained because government commands or prohibits certain behaviours by
issuing laws. The behaviour of citizens becomes more easily predictable in such a way as to
allow them to coordinate their behaviour in accordance. The state as a form of collective will
makes people behave as ifthey were led by reason, which is to a certain degree the product of
civillaws the effectiveness ofwhich increases in astate led by reason (TP III.7).
Spinoza distinguishes between such laws issued by public authorities and the aforementioned
laws of nature describing the actual behaviour of individuals (or ofthings). These naturallaws
are descriptive in nature; they indicate the actual social behaviour of a particular species or a
group of individuals (see section 2).
However, we seldom use the concept of law in the sense of a law of nature, according to
Spinoza; rather, we use it in the sense of a command which men can either obey or disobey.
The legislator may establish laws in view of an end to be achieved (TTP IV, p. 101). Such a
law restricts human power within set limits and demands nothing that is beyond human power
(TTP IV, p. 102).12 This human law is a prescribed norm; it intends to influence the behaviour
of people, even though it does not bring about such behaviour necessarily. Behaviour in
conformity with the prescribed norm is not guaranteed by the mere existence of the norm.
Spinoza defines 'law' then more specifically as 'a rule of life which man prescribes for himself
or for others for some purpose' (TTP IV, p. 102). By distinguishing human laws from the
descriptive laws ofnature, Spinoza gives insight into the normative character oflaws enacted
by public authorities. The legislator's decision determines whether a specific behaviour is
prohibited or obligatory. With this explicit distinction, Spinoza intends to clarify that - unlike
10 EIID7.
11 De Dijn 1970, p. 37.
12 Within this category of prescriptions, Spinoza distinguishes between human laws - the sole aim of
which is to safeguard life and the commonwealth - and divine laws, which refer only to the supreme good,
that is, the true knowledge and love ofGod (see also EV).
Spinoza and Law 25
what legislators often seem to think - the prescriptions laid down in these laws do not apply
automatically. These commands can be distinguished from naturallaws describing an actually
existing behavioural regularity of a particular species or group; hence, the qualification of
compliance or non-compliance is not applicable to naturallaws.
The command aspect of the enacted law thus implies the possibility of non-compliance.
This kind of law seeks to bring about a common behaviour among the norm 's addressees, even
though there is no guarantee that the law will succeed. [fthe prescribed behaviour is actually
complied with, then there is a common pattern of behaviour. Only then can the regulation
requirement be called a law. After all, a law indicates that a collection of individual things -
either in general or those ofthe same kind - acts in one and the same fixed and determinate
manner. That is the case here. Effectiveness is thus part ofthe definition of a lawY
[n sum: we can say that, for Spinoza, naturallaws describe a certain behavioural regularity,
whereas promulgated laws prescribe (albeit not necessarily actualizing) such regularity.
Hence, in the state, laws are decrees issued on behalf of all by the public authorities that
prescribe a particular way of life in the state to the citizens. Such laws, thereby establishing
rights and duties for the people, create a normative order - in contradistinction with laws that
purely describe some kind of behaviour.
The command aspect gives human laws a metaphorical meaning. A (normative) law issued
by the public authorities not only refers to an intended actual result that can be described in a
descriptive law, but also to the aspect ofreasonableness in the law. [ndeed, the law regulates
the behaviour of citizens governed by passions and thereby forces them to act more reasonably
than they (or most ofthem) are naturally inclined to. The (human) law is a metaphor for the
reasonable decree of all those who live and work together in the state. But this means that the
decree cannot be understood apart from the following meaning: there is always a commander
that is authorized by the citizens jointly - the 'multitude' - to issue commands, i.e., to enact
laws on their behalf. The metaphorical nature of the command must always be linked to
the metaphorical nature of the commander. The metaphor emerges from the fact that the
commander cannot act arbitrarily, but is bound to act on behalf ofthe multitude. Therefore,
the legislator cannot be detached from the multitude because there is no duality between the
state and the collective actions of citizens. The general collective dimension ofthe state thus
appears to be crucial. 14
The legislator intending to prescribe a particular way of life to citizens has to take into
account the following relationship between the two different types (natural and promulgated)
of laws. When regulating human behaviour, one must take into account factors that affect
human behaviour. Therefore, the (enacted) laws that prescribe certain behaviours should take
into account the characteristics of human beings and the actual regularities (Iaws) of human
nature. The laws that describe the properties of human nature denote actual (psychological,
13 M. Walther, 'Spinoza und der Rechtspositivismus', Archiv für Recht- und Sozialphilosophie 68
(1982), p. 411; see also Matheron 1986, p. 103.
14 With regard to Spinoza's non-normative, but ontologically-based theory ofthe sovereignty ofthe
people, in which 'people' is not conceived as an organ representing astate (or class) but as 'multitudo', see
M. Walther, 'Institution, Imagination und Freiheit bei Spinoza. Eine kritische Theorie politischer
Institutionen', in G. Göhler, K. Lenk, H. Münkler & M. Walther (Hrsg.), Politische Institutionen im
gesellschaftlichen Umbruch, Ideengeschichtliche Beiträge zur Theorie politischer Institutionen, Opladen
1990, p. 248.
26 Spinoza and Law
sociological, etc.) regularities in the behaviour of human beings and are therefore natural
laws. In other words, commands that prescribe a certain human behaviour should take into
account the actual regularities of human nature which are described in the laws of nature.
These laws ofnature define the limits within which individuals are capable ofacting. 15 Ifthe
legislator ignores these laws ofnature when drafting and enacting a law that serves to regulate
human behaviour, the result will be a law prescribing a certain behaviour that is beyond the
citizens' capabilities (power). Hence, this law or legislative command will be disobeyed.
As stated above, laws grant 'civii' rights; these 'civii' rights are to be regarded as natural rights
that the state turns into positive rights. In other words, the natural right of a man in the state of
nature is in fact an empty concept because people cannot survive without mutual cooperation.
In order for people to be in control oftheir own rights, the state must somehow turn them into
'civii' rights, i.e. rights in the civil order. Only in the state can (natural) rights actually exist;
only in the state can these rights have a meaningful content.
Spinoza grounds subjective rights in three steps. First, there is a right ofnature in the state
of nature, but here the concept of a natural right is meaningless because man is unable to
defend hirnself against others. It cannot be called a subjective right. In order to be meaningful,
this natural right has to become objective law. This is the second step. Objective law comes
ab out through cooperation by which the natural rights of individuals in the state combine
in order to constitute rights held in common. Here, the state can be conceived of as the
institutionalization of objective law. Thirdly, this objective law is not legitimate law unless
it converts into subjective right(s). This happens when the public authorities grant rights to
citizens; only then can we really speak of individual or subjective rights. Because citizens
hold these individual rights in virtue of the communal right (usually called 'sovereignty';
TP 11.17) of the state, (subjective) right cannot be said to be an apriori existing category since
there are no original individual rights preceding the state. 16
Spinoza differs here from the naturallaw tradition. Usually, naturallaw theory assurnes the
existence of a higher law, the immutable and universallaw ofnature. This naturallaw, in the
form of a number ofprinciples ofmorality given by God or reason, functioned as a legal order
preceding higher (transcendental) standards for positive law. The legislator is bound by these
principles ofnaturallaw. Spinoza denies this teleological essence oflaw. He does use natural
law terms, but with a whole new meaning. He does not advocate legal voluntarism. Unlike
Hobbes, he views law as not simply voluntas or will (cf. Leviathan, Chapter 26). Therefore,
the power of the legislator is not unrestricted; his commands have to take into account the
power ofthe subjects.
'Civii law', in Spinoza's words, limits the scope of individual action, but it also creates
within those limits the freedom of the individual to live in accordance with his or her own
views. On the one hand, this concerns 'negative freedom': the state assigns to citizens a private
space protected from interference by others. 17 On the other hand, the state creates aspace
which enables personal development and participation as a member of the state community
in public affairs (especially in a democracy). This second kind of liberty is called 'positive
liberty', characterized by self-determination and self-realization.
[n the state, we do not speak in terms ofnaturallaw, but we must not forget that 'the natural
right in its entirety' is always preserved in the state (Ep. 50). The state or commonwealth is
bound by natural law, for the positive law in the state should reflect the balance of power
(or natural rights) in the state. Positive law is then not contrary to natural law, but rather
identical with it - at least, as long as it is effective. [fthis is evidently not the case, then public
authorities have apparently not conferred enough rights to citizens, in which case the larter
will ignore the law or revolt. Positive law which is not effective deviates (too much) from
natural right. A civil war will follow.
Spinoza does not conceive of right as a theoretical concept of a capacity or authority that
is independent of its mode of exercise: 'the notion of a right corresponds only to an aetual
reality, and therefore to an aetivity' .18 Each right is defined in 'actuality' (its current state)
and refers to the actions of one or more individuals. The right of the public authorities is
always dependent on the manner in which it uses its powers, for the sovereign power in the
state has right over the subjects only within the limits of its power over the subjects (Ep. 50).
[n the state, power is transformed into competence, which is always conditional power. This
competence is ultimately resolved into the - implicit or explicit - approval (and power) of
the multitude.
Because Spinoza frequently speaks in terms ofpower or capability to act, it might seem that
living in astate is based only on an armed peace. This is not the case. The purpose ofthe civil
order is the peace and security of citizens, so that the best state is the one in which citizens
live harmoniously together and whose laws are complied with. Unlike Hobbes (Leviathan,
Chapter 13), Spinoza does not see peace as the absence ofwar. Peace has a positive content;
peace is 'a virtue arising from strength of character' (TP VA).
Here, citizens are obedient, obedience being defined as 'the constant will to do what by
law is good and what the common decree requires to be done' (TP [1.19). Peace will only
be achieved ifthe common laws ofthe commonwealth are observed (TP 111.6), not only for
fear of reprisals, but also out of respect for the commonwealth (TP [VA). For this purpose,
the public authorities must consciously seek to ensure the loyalty of citizens towards the
commonwealth. Conversely, commanding citizens to behave in a way which they deern
impossible or to regard as honourable those things which excite ridicule or disgust will lead
to the destruction ofthe commonwealth.
5. Rule of Law?
What is the actual meaning of Spinoza's naturalistic philosophy? The democratic state
under the rule of law is (partly) the result of the effort to subject the exercise of power to
law; govemments should act in accordance with pre-established laws. First, this involves
17 See 1. Berlin, Two Concepts ofLiberty (1958), in Four Essays on Liberty, Oxford/New York 1969,
pp. 118-172.
18 E. Ba1ibar, Spinoza and Politics, LondonlNew York 1998, p. 60.
28 Spinoza and Law
'impersonalization of the state power: the personal power of the sovereign (the prince)
becomes institutionalized power' .19 The rule of law has primacy over the rule of men; this
implies that power is vested in offices, bodies or agencies. In addition, the sovereign is not
above the law; he derives his power from the rule of law and has to exercise this power in
accordance with the law.
The choice between the rule of law and what is usually called the rule of men concerns
the way by which public authorities operate. It does not concern the form of government.
Proponents of the rule of men sustain the existence of a wise sovereign who should not be
hindered by generailaws. Such laws may prevent hirn from issuing wise ad hoc decrees and
from doing fulljustice to the specificity ofthe case at hand by weighing the pros and cons. The
rationale ofthe rule oflaw is the prevention of (and protection against) the arbitrary exercise
of power: the general character of the norm or standard to which the ruler is subordinated
guarantees the impartiality of his decisions. The sovereign exercises his power within the
limits established by the constitution. 20 The principle ofthe rule of law has been crystallized
in the requirement that the acquisition, maintenance and transfer ofpublic power, as weil as
the very exercise ofthis power, is constrained by law. 21
Spinoza distinguishes between three forms of government: monarchy, aristocracy and
democracy. He uncovers the inner logic and fundamental laws of each of these forms and
subsequently designs fitting institutions so as to safeguard their stability, as weil as the peace
and security of citizens. Oue to his untimely death, he was not able to discuss democracy in
detail; the chapter on democracy in the TP is unfinished. According to Spinoza, democracy
is the 'most natural form of state, approaching most closely to that freedom which nature
grants to every man' (TTP XVI, p. 243). This means that we must restrict ourselves to his
explanations of monarchies and aristocracies reflecting his naturalistic theory of politics. It
is clear, however, that the argument concerning these two forms of government reflect his
general ideas on the exercise of power by the state.
In Spinoza's analysis of monarchies, power is characterized by the depersonalization of
the power ofthe king and by the fact that his power is bound to the fundamentallaws. These
fundamental laws are to be regarded as constitutional checks on the behaviour of the king.
He - after all just a human being with an inconstant will - is bound to the fundamental
laws, i.e. the constitutionallaws ofthe state (TP VIl.l); positive law thus binds hirn. 'For the
fundamentallaws (jundamenta) ofthe state should be regarded as the king's eternal decrees,
so that his ministers are entirely obedient in refusing to execute his orders if he commands
something that is opposed to the fundamentallaws ofthe state' (TP VII. I ). Not everything the
king wills must be law. The king's exercise ofpower is thus regulated by law. This concept of
'self-binding' is well-known, also in constitutional theory.22
Spinoza iIIustrates this argument by means of Ulysses' decision to be bound to the mast of
his ship by his comrades in orderto listen safelyto the song ofthe Sirens. The Sirens bewitched
travellers by their singing so that they shipwrecked on their island. When Odysseus, bound
19 See E.H. Kantorowicz, The King's Two Bodies. A Study in Medieval Political Theology,
Princeton 1957.
20 N. Bobbio, 'The Rule ofMenorthe Rule ofLaw', in The Future ofDemocracy, Minneapolis 1987,
pp. 138-140.
21 B. Jeanneau, Droit constitutionnel et institutions politiques, Paris 1991, p. 6.
22 See, for example, J. Elster, Ulysses and the Sirens, Cambridge [etc.] 1979, pp. 36 ff
Spinoza and Law 29
to the mast, was enraptured by the Sirens, he ordered his comrades in vain to untie the ropes
and release hirn.
According to Spinoza, ministers must ignore the king's decrees that conflict with the
constitution [TP 1Y.6]. The sovereign is bound to observe the constitutionallaws ofthe state,
which are established in the interest ofthe general welfare. In sum: (positive) law is somehow
based on the will ofthe king; but this does not mean that everything the king wishes constitutes
law by definition. Ifthe will ofthe king is in conflict with the constitution or positive law, his
declared will should not be considered law, for this would arouse the people's indignation,
thus endangering the peace and security of both the king and the people.
The capacity of the king to act is limited by the constitution. Ultimately, he is merely a
human being with a weak will. In order to prevent his emotional impulses (driven by his
passions) that have far-reaching negative consequences for society, the constitutional laws
act as restrictive conditions and procedural rules for the transformation ofthe king's will into
legislation. In short, we have here a basic feature of the rule of law - though it is not a full-
blown conception ofthe rule of law.
Moreover, the constitution provides a check on his power by way of a council whose functions
are to watch over the common welfare, for 'one man alone cannot supervise everything and
be always on the alert with a mind set for deliberation, and is often prevented by iIIness or old
age or other cause from attending to public affairs' (TP VII.3). Hence this council, composed
of a large number of citizens chosen from each stratum or class of society, serves the public
interest (TP VI1.4). Its main task is to maintain the constitution; in addition, it has to voice
opinions conducive to the people's welfare which will be submitted to the king. This council
provides binding advice. Its opinions bind the king because the council represents the people,
so that the king's management of the affairs of state is guided and directed towards peace and
security for the people. The personal power ofthe king is depersonalized and constrained by
embedding it in a constitutional 'impersonal' public body. Thus Spinoza's conception of a
monarchy is that of a constitutional monarchy, which indeed resembles a democracy.
In an aristocracy, the sovereign power is entrusted to a supreme council composed of a
large number of elected patriciansY Everything that the supreme council explicitly declares
to be its will must necessarily be law (TP VIII.3).24 The council must be sufficiently large;
so large that its will is determined by reason rather then caprice (TP VII1.6). Spinoza then
provides the constitutional structure allowing for the functioning ofthis council of patricians.
The foundations (constitution) should be so as to guarantee that the supreme council is 'as far
as possible in control of its own right', for then 'all causes of civil strife will undoubtedly be
removed' (TP VII 1.7).
This aristocratic sovereignty is 'absolute' insofar as it never reverts to the people, since no
consultation of the people is involved (TP VillA). Consequently, the state (or the supreme
council), is in control of its own right only if it is not a source of fear and if subjects retain
no liberty 'except such as must necessarily be granted by the constitution ofthe state itself'
(TP VII1.5). Thus, decision making in the supreme council is subordinated to the fundamental
23 The essential distinction between aristocracy and democracy is that, in a democracy, the right
to participate in govermnent and to manage the state of affairs is ruled by a law (for example, statutory
elections), whereas in an aristocracy this right is based on birth or fortune.
24 Spinoza distinguishes between two sorts of aristocratic states: a city-state, such as Rome or
Venice; and astate composed of several cities, such as Holland.
30 Spinoza and Law
laws. In an aristocracy, the decision-making process takes place sub lege, i.e. patricians should
rule in accordance with the existing basic norms ofthe legal system.
Spinoza provides a systematic treatment of the foundations of democracy. He explicitly
wishes to make any form of govemment - monarchy, aristocracy, or democracy - as stable
as possible, so as to preclude tyranny and guarantee the peace and freedom of the citizens
(TP, subtitle). With that purpose, he presents quite detailed constitutions for monarchies and
aristocracies, so that the rule ofthe fundamentallaws can be institutionalised. By analogy, he
would have made the same thing with regard to the foundations of democracy. Foundations
unsuited for the democratic form of state would have to be replaced with other equally
effective institutions suitable for democracy. Hence, it seems that he intended to subordinate
the (political) power exercised in the democratic decision-making process to the fundamental
laws, or constitution, of a democratic state.
It is hard to deny that Spinoza's analysis ofthe necessary foundations of different forms of
govemment and his design of accompanying constitutions shows features which underlie the
modem conception ofthe democratic state under the rule of law.
25 Montesquieu, The Spirit 0/ the Laws [1748], A.M. Co hIer et al. (eds), Cambridge 1989, XI, 6.
26 IN. Shklar, Montesquieu, Oxford 1987, p. 113.
Spinoza and Law 31
with the utmost keenness' (TP V11.4)Y Indeed, it is iIIusory to base the organization ofthe
state on the reasonableness of state officials, who after all are mainly driven by their passions.
Moreover, affairs of state should never be placed in the hands of one single individual; they
must be divided among several state agencies. Furthermore, powers, duties and rewards
should be determined in such a way as to ensure that public officials 'attending to public
affairs serve their own interests best when they are most vigilant for the common good' (TP
VII1.24). Spinoza's institutional design ofthe state, therefore, tries to make the natural striving
for self-preservation subservient to the public interest and vice versa. For example, members
of some state agencies who do more for the public interest than an average citizen can be
expected to have a right to an income, which, however, depends on the way they perform
their duties. The privilege ofmembership to a public body goes generally hand in hand with
serious obligations. 28
Spinoza discusses in detail the division of responsibilities between the various public
bodies. In a monarchy, the king is assisted by a council whose members are selected from
each group or class of society (TP VIIA). The public interest is served by guaranteeing
that 'the state or commonwealth may continue in one and the same mind' (TP VII.3). The
opinions ofthis council are bin ding. This council also supervises the king's compliance with
the constitution. Moreover, the council also constitutes the executive branch; it promulgates
the king's decisions and executes the decisions reached. Thus, Spinoza proposes aseparation
of the legislative and executive branches of govemment. The administration of justice is
entrusted to a council oflawyers, which are required 'to hold all men as equal without respect
to persons, and to uphold equally everyone's right' (TTP XVI, p. 244). The rulings of this
council are measured against the standards ofimpartiality and compliance with the procedural
rules by representatives ofthe (I arge ) council which also assists the king.
In an aristocracy, the 'sovereign' power is entrusted to a supreme council consisting of
a large number of patricians. This council constitutes the legislative branch and it is also
the heart of the executive power - it bears the final responsibility for the implementation of
legislation (TP VII1.17). Subordinate to this council is the council of syndics which oversees
compliance with the 'Iaws ofthe state (constitution), for example with regard to the prescribed
procedures for council meetings and functioning of officials' (TP VII 1.20).
The senate is a second council that is subordinate to the supreme counci!. The responsibility
of the daily administration is delegated to the senate. The administration of the aristocratic
state includes tasks such as promulgating the laws, imposing taxes on subjects and arranging
the disbursement ofrevenue (TP VII 1.29). However, only the supreme council can decide on
the introduction ofnew taxes.
There is also a court of justice or tribunal distinguished from the other branches of
govemment. This court cannot have the same foundations as the one under monarchical
rule, for these do not accord with the fundamental laws of the aristocratic form of state (TP
VIII.37). Hence, Spinoza replaces the 'monarchical' foundations with foundations suitable for
an aristocracy. Nonetheless, as is the case with a monarchy, it is ofparamount importance that
27 See R. McShea, The Political Philosophy 0/ Spinoza, New York 1968, p. 109: a properly
constituted state will be like a 'homeostatic mechanism'. which corrects divisive or destructive
tendencies by always connecting an individual's interests to the interests of others.
28 See, with regard to Spinoza's constitutional proposals, W.N.A. Klever, 'Het koppelingsbeginsel
bij Spinoza', Acta Politica (1988), pp. 359 ff
32 Spinoza and Law
judges are too numerous to be corrupted by a private person (TP VIII.38). However, judges
are to be appointed by the supreme council of the patricians (TP VIII.40). Here, we see a
functional and institutional, but not a personal separation of powers: the same persons staff
different agencies. 29 Rulings of the court can be appealed to the council of syndics, which is
authorised to make enquiry, to judge and to reach decisions with regard to the proper order
and impartiality (TP VII 1.40).
Spinoza seeks to create a balance between the various powers on the basis of a 'system
of inter-relations' ,30 in order to reduce the adverse effects of human behaviour driven by
passions Gealousy, enmity, etc.), while at the same time ensuring the positive effects ofhuman
behaviour. To this end, he proposes a range of requirements set upon the various state bodies
and their members: that a minimum age of60 years is required for certain offices (TP VIII.21);
that the various bodies have a large number of members in order to prevent bribery; and that
the office of councillors has a limited term. [n order to be able to safely carry out its task,
the council of state should obtain command of its own part ofthe armed forces (TP VIII.23).
Spinoza also argues that secret ballots are required in various public bodies. Some of these
requirements seem a little naiVe nowadays, but it is important to note that Spinoza had an eye
for the problems inherent in the concentration of power.
More than fifty years be fore the publication of Montesquieu's De I' Esprit des Lais (1748),
we find in Spinoza efforts to establish a balance of powers that prevent without paralyzing
the functioning arbitrariness and abuse ofpower by state government. 31 There is a functional
differentiation between the branches of government; in addition, the three functions are
allocated to different agencies. However, the division of power at the personal level is not
complete. Sometimes the same persons staff different public bodies.
With regard to legal epistemology and legal philosophy, Spinoza's views are surprisingly
topical. According to Kelsen, legal positivism is that legal theory which conceives only
positive law as 'Iaw' .32 Law is considered law only when it is made by authorities appointed by
the system itself and enforced by other authorities, also appointed by the system. This means
that the principle of legitimacy can be rephrased as the 'principle that a norm may be created
only by the competent organ, that is, the organ authorized for this purpose by a valid legal
norm' which is 'the question of legality [Gesetzmäßigkeit]' .33
29 See Montesquieu, The Spirit olthe Laws, 1989, XI, 6, pp. 158-159, with regard to the constitution
of Venice, a source of inspiration for Spinoza: 'But the il1 is that the different tribunals are formed of
magistrates taken from the same body; this makes them nearly a single power'.
30 l.p. Razumowsky, 'Spinoza and the State', in G.L. Kline (ed.), Spinoza in Soviet Philosophy, New
York/London 1952, p. 160.
31 See E.O.G Haitsma, The Myth 01 Venice and Dutch Republican Thought in the Seventeenth
Century, Assen 1980, p. 183.
32 H. Kelsen, 'Was ist juristischer Positivismus?', Juristen-Zeitung, Vol. XX (1965), pp. 465--469.
Reprinted in Hans Klecatsky, Rene Marcic, Herbert Schambeck (eds.), Die Wiener rechtstheoretische
Schule. Schriften v. Hans Kelsen. Adolf Merkl, Alfred Verdross, Vienna 1968, pp. 941-953.
33 H. Kelsen, Pure Theory 01 Law (1960), Gloucester (Mass.) 1989, p. 276.
Spinoza and Law 33
There is an additional point which is valid for more people than merely the small number of
citizens who act rationally. The tension between the civil law and what the citizens consider
to be the good life or the public good is inadmissible, since there is a dialectical relationship,
on the one hand, between the stability of a political order and the civil law (jus civile), and
on the other hand, between the needs and interests of citizens. 36 lf the public authorities
prescribe norms that violate vital interests, the des ire for self-preservation and the laws ofthe
human psyche, then citizens will disobey these norms. In such cases, not even the exercise
of extreme compulsion over citizens will produce obedience. 37 Positive law no longer meets
the constitutive requirement that it should be effective at large, and therefore is rendered void
(TP 111.8-9). The legislator, and more generally, political power, cannot exercise its absolute
'right' without endangering itself.
The public authorities can draw a twofold conclusion from this. They may restrict
themselves with regard to their formally unlimited regulatory powers in such a way that
the dialectical relationship is observed. In this case, there will be no lengthy tension with
societal morality. However, ifthe public authorities fail to recognize that this self-limitation
is necessary to remain in power, they actually cease to be summa potestas, and they lose the
right of commanding. They lose 'the right of complete command, which passes to one man or
a number ofmen who have acquired it and are able to retain it' (TTP XVI, p. 242).
Despite the fundamental conceptual separation between law and morality, positive (civii)
law must take into account the actual morality and views on the public good ofthe people in
the light of the dynamic interaction between political power and the demands and interests
of citizens. Public authorities, therefore, should not only take legality seriously, but also the
legitimacy oftheir decisions. Formally, they are bound by nobody, but in everyday reality they
can only survive by taking the interests of citizens as guidelines for the management of affairs
of the state. In the long run, what constitutes the only basis for viable govemment action is
legitimate authority rather than a bare exercise of power.
8. Quis iudicabit?
Thomas Hobbes asked the poignant question: Quis iudicabit?38 Who has the final authority to
pass a judgement on justice and injustice? Who ultimately determines the bonum commune?
Who establishes exactly what domestic peace is and which civil rights are to be held by the
citizens?39 According to Hobbes, govemment has absolute authority; subjects are not at liberty
to disobey the govemment's commands.
Spinoza's answer is unequivocal: only the supreme power has the exclusive authority to
determine what kind ofpositive law is obligatory. The individual citizen is not competent to
decide on the binding nature of the jus civile or of the laws in the state. If every citizen were
allowed to live according to his own mind and to interpret the laws according to his own
standards and values, there would be no cooperative venture with one institution in charge -
all that would remain would be civil war. What safeguards the unity ofthe state is the generally
binding civil law. This positive law disappears if it loses the character of a mandatory set of
norms or standards ofbehaviour. Without the state, there is no positive law, no common right.
In turn, the state can only safeguard the civil law, as weil as guarantee peace, tranquillity and
security, if the individual citizens give up their natural right to determine what is right and
wrong, just and unjust.
This is a fundamental question that is often quickly overlooked. The conclusion may seem
trivial, but that is by no means the case. Criticism of existing laws is possible only if obedience
to the law is not dependent on the approval of its contents. This criticism, of course, may result
in areform ofthe political and legal order. 40
This issue can be regarded as one ofthe hallmarks of our democratic system. Criticism of
the law is possible through the regular democratic decision-making process, but that does
not relieve citizens ofthe obligation to obey the (civiI) law - with the exception of extremely
unjust laws. Reforms should be introduced from within the political and legal order, based
on a certain loyalty. The fact that a citizen commits himselfto the existing order rather than
excluding himselffrom it makes his criticisms all the more powerful.
If people do not comply with disagreeable laws because they want to determine for
themselves what is just or unjust, the state will disintegrate unless it regains the monopoly of
this function. Citizens thus undermine their social security, since the state is no longer able to
guarantee peace, security and civilliberties.
The aforementioned argument does not imply that Spinoza advocates a completely
homogeneous society. On the contrary, he acknowledges that conflict cannot be avoided where
people live together; however, he never forgoes the absolute necessity that citizens have of
living in a society in order to preserve themselves and to develop their mental ability. His
conception ofnatural right reflects this social reality. The right of an individual or institution is
determined by the extent to which these claims are actually realized in a plurality of conflicting
interests. Spinoza's concept of law does not attempt to do away with the inevitable plurality
of interests existing in a legal order. He neither idealises the unity of astate nor assurnes a
homogeneous society - his naturalistic concept of law stays in touch with reality.
In this sense, his concept of law can do justice to the pluralism ofthe modern state under the
rule of law, since it is based on a society in which many groups with very different and often
conflicting interests and purposes compete. The only claims that acquire the status of (civil)
right are those which have sufficient societal and ultimately parliamentary support.
Spinoza assembles the interests of state and society into a common denominator: natural
law, which helps explain the relationship between the two. He can thus say that the state is the
common right which is determined by the power ofthe multitude. At its best, law symbolizes
the unity of state and society. However, if the public authorities are further away from the
citizens, and there is no societal support to their activities, a certain tension arises between
the power-right ofthe public authorities and the power-right ofthe citizens collectively. With
the statement '(natural) right is co-extensive with power', Spinoza does not legitimise state
arbitrariness. Rather, he argues that the unrestricted exercise of power in the long-term will
inevitably lead to revolt. The recent 'Wende' in Eastern Europe illustrates that he is right.
The more cooperation there is among citizens and between citizens and the public
authorities, the more power the state has to enable joint survival. In other words, astate
supported by a consensus among citizens is a powerful state, which consequently can assign
more 'civii' rights to citizens. According to Spinoza, the state that establishes laws such as
prescribed by reason allows the people to be guided as if by one mind (TP 11.21). In other
words, law produces consensus in society. This is achieved, for instance, by laws, even though
it is impossible to control and steer society by means of laws alone. After all, 'qui omnia
legibus determinare vult, vitia irritabit potius, quam corrigibit' .
Hence, 'civii law' fulfils a unifying and conservative role. It is an expression of the
fundamental values of society on which unanimity exists. Spinoza presents the idea according
to which the law cannot be reduced to its instrumental (regulatory) function because the
symbolic function is also important. To his mind, this vital symbolic function entails that law
symbolizes the unity of society by striving for peace, security (and equality)41 for all citizens.
Laws that respect this symbolic dimension will be accepted in society; they are not merely the
decree of a public body in a position of power.
9. Conclusion
It still makes sense to study Spinoza's legal theories, based as they are on psychological and
sociological regularities of human behaviour. His naturalistic and descriptive approach to
the relationship between law and power shows that the exercise of state power on that basis
- within the constitutional constraints - may be almost unlimited formally, albeit materially
there are limits. The ability of the public authorities to regulate society has certain limits
which are inherent in the existence ofthe state.
The constitutional idea of the rule of law is not arecent development; it has a greater
historical continuity than one might expect at first sight. This idea(l) was recalibrated in the
Republic of the United Provinces of the seventeenth century. Spinoza was one of the major
figures in the Netherlands theorising about the optimal state and its constitutional foundations.
He also tried to design a system of checks and balances in the distribution ofpowers between
the various public bodies: a dynamic balance ofpowers.
From an epistemological standpoint, we can conclude that legal positivism kindly welcomes
Spinoza in its midst - although by no means unconditionally. It is obvious that effectiveness
is a constitutive requirement for positive law to exist. However, effectiveness cannot be a
matter ofbare power. According to Spinoza's naturalistic argument, effectiveness implies that
citizens comply with the (civii) law not merely for fear ofreprisals, but mostly out ofrespect
for the commonwealth 's authority. Therefore, despite the conceptual separation between law
and morality, positive law has to take the interests and the moral convictions of people into
account.
Finally, Spinoza provides an answer to the key questions of political philosophy, viz. the
issue of sovereignty. Only a government embodying the unity ofthe cooperating citizens has
the exclusive (absolute) power to determine the bonum commune. Hence, citizens should
regard a government as legitimate, which in turn implies that the latter must strive for peace
and security.
From this line of reasoning follows naturally that Spinoza offers insights for reflection on
the often claimed legitimacy crisis ofthe democratic legal order. The democratic state under
the rule of law imposes at least one obligation on both government and citizens: on the one
hand, government should breed a permanent substantial loyalty among the citizens; on the
other hand, citizens must actively support the state since they share an active interest in its
existence. In other words, neither party has room for arrogance or permissiveness.
In addition, we can draw an important conclusion with regard to the proper management
and preservation of our constitutional democracy: democratic criticism should be based on
obedience to the law. As a rule, obedience to the law should not be dependent on substantive
agreements with the law, which actually would undermine the democratic order. If citizens are
free only to obey the laws they deern just, the state cannot guarantee peace and security. This
would make the legal order degenerate into a civil war.
[3]
Spinoza's Critique ofLaw*
Roberto Ciccarelli
Spinoza's theory owes a linguistic debt to the natural law tradition, but it is also capable of
acquiring an entirely new perspective. 1 Firstly, it is important to point out the similarity of
views regarding the good as the foundation of law. The good defines either a certain action 's
usefulness for reaching an end, or a virtuous action's actual value. From the definition ofthe
good follows the definition of naturalis ratio, which is established by God personally the
moment that criteria ofjustice apply to virtuous actions. A particular action is useful whenever
it conforms to right reason (reeta ratio), that is, to God's universal, constant and eternal nature.
Such an action is based directly upon that law which - by deriving from God's will - is the
guideline and the master ruling different peoples. This law is equivalent to nature's universal
reason; it commands that which ought or ought not to be done.
Does this mean that Spinoza defines the law in moral terms? That he justifies it by means
of an idea of the moral good? That it is the law that ensures the preservation of the world's
order and hannony by bringing about God's will in the form of a naturallaw? That it is the law
that prevents nonconformity to behaviours prescribed by laws? Does Spinoza perhaps share a
notion of law that works against the individual will?
For Spinoza, the law (as weil as all relative ontology) does not follow afinalistic rationale.
Man's behaviour is not determined by a final cause connected with the idea of a good that
detennines justice in an action. The law does not prescribe actions according to rules of
conduct that bring about the moral value contained in the idea of good. The law's finalistic
rationale is typical of those organizations (whether they are groups or States) defined by
Hans Kelsen as prescriptive and sanction-executing authorities. Such organizations establish
the confonnity of an act with amoral, rather than a legal, prescription. By committing an
iIIicit act, the individual incurs aseries of sanctions that exclude hirn from humanity and that
consider hirn an immoral individual precisely because he is a criminal. 2
Such a rationale mirrors afinalistic or teleological justification of the law. 3 Whatever act
he commits, the individual agent will be judged in the light of the purpose he intended to
accomplish. A given action's effects are interpreted in view ofits end rather than ofthe means
for accomplishing it. Therefore, the individual agent is judged not in the light of what he
actually did, but of what he intended - that is, of his morality. The individual becomes an
agent the moment that he is able to live based upon a generally-established and axiomatic
finality. Thus, the law is used in order to induce certain moral behaviours and to preserve
the corresponding prescriptions, so that the individual's ultimate ends are the same as the
law's ends, that the former's will mirror the latter's will. This entails that the nature ofman is
substantially that very nature which is prescribed by the law. The law judges whether an idea
ofthe individual's nature is good or bad; not whether his actual nature is good or bad. What
can be qualified as licit or iIIicit is not his action, but rather an identity that fails to equate with
reality. Within such a frame ofreference, he who acts badly and takes responsibility for an evil
action will not be considered a man because he disobeyed a divine law.
By this, we do not mean to deny that a finalistic conception ofthe law can indeed be useful,
considering that an action is always measured in the light ofits objective results. Instead, what
is important to notice is that the nature of law cannot be judged in teleological terms - it is
nature that cannot be measured by means ofteleology. For Spinoza, a finalistic idea subverts
the order of nature:
For what is really a cause, it considers as an effect, and conversely [what is an effect it considers as a
cause]. What is by nature prior, it makes posterior. And finally, what is supreme and most perfeet, it
makes imperfect. (EIApp; G TI, 80)
By ascribing a personality to God, by attributing to God a finality that can only be accomplished
when certain laws are established to men, the law becomes the very cause of God's will. By
being identified with moral commandments, the law is equivalent to divine laws, that is, the
manifestation of God's will, a command laid down to all those deprived of the will to exist.
The individual is a subject who is unaware of the true causes of his actions; he is a slave;
subdued by sad passions, he gave up asking hirnself ab out the means which make his will's
effectiveness possible.
Spinoza's theory is a genetic justification of the law. Man needs to obey to the potentia dei
absoluta because he prefers order to confusion: 'They also say that God has created all things
in order, and so, unknowingly attribute imagination to God' (EIApp; G 11, 82). The subversion
of nature is caused by the superstition according to which there is a power superior to man 's
that is able to accomplish that which he is unable to do. This means that the law is the cause
of everything that exists insofar as it is a God-willed order which overlaps all confusion. The
fact that men mix up order with confusion forces them to believe that God had disposed all
things in His own image and likeness. These men 'call the nature of a thing good or evil,
sound or rotten and corrupt, as they are affected by it' (EIApp; G 11, 82). Therefore, if they
regard a thing as good, such a thing will be good by law since it was willed and disposed
directly by God. Furthermore, Spinoza alerts that one should not be surprised that there are
so many philosophers who believe in the existence of a perfect harmony established by God
in view of its final cause. These philosophers merely express the opinion of 'ordinary people'
who make use of 'modes of imagining, and do not indicate the nature of anything, only the
constitution ofthe imagination' (EIApp; G 11, 83). This imagination certainly arises from the
need for order, but also from the idea of an absolute power creating this order out ofnothing.
By God's power ordinary people understand God's free will and his right over all things which are,
things which on that account are commonly considered to be contingent. For they say that God has
Spinoza and Law 41
the power of destroying all things and reducing them to nothing. Further, they very often compare
God's power with the power of kings. (EITP3S; G TI, 87)
What other cause can explain the existence of law and of all things which are, other than the
final cause by which men believe that God brought all things into being? This inversion ofthe
means-ends dialectics depends upon what? Spinoza answers that it is posited by a certain idea
ofGod. He claims that all admit, with good reason,
That God is the only cause of all things, both of their essence and of their existence. That is, God
is not only the cause ofthe coming to be ofthings, as they say, but also oftheir being. (EITPIO S2;
G TI, 93)
However, men follow 'the proper order of philosophizing' (ibid.) (the order of science
proceeding from causes to effects) only seldom. Therefore, they consent to the subversion
of the natural order of things and, consequently, to the disruption of the scientific order by
which causes are known. By mistaking an effect for its cause, they have tended to believe that
the world was made in order for men to make use of it. But the fact that man uses all existent
things at his discretion does not imply that they are originally predisposed to being used:
Forthey believed thatthe divine nature, which they should have contemplated be fore all else (because
it is prior both in knowledge and in nature) is last in the order ofknowledge, and that the things which
are called objects ofthe senses are prior to all. (ibid.)
When men turn to 'divine nature', they are deluded by the imagination of sensible things,
to the point that 'they can think of nothing less than of their first fictions, on which they
had built the know ledge of natural things, because these could not assist know ledge of the
divine nature' (ibid.). In other words, they have interpreted 'the substance ofthings' as ifthey
were 'the essence of man'. The essence of man, just like any other thing, only is what it is
when it is in God's essence. For this reason, the existence of a human essence exclusively
based upon itself is inadmissible. According to Spinoza, 'singular things can neither be nor
be conceived without God, and nevertheless, God does not pertain to their essence' (ibid.).
God is the cause, whereas the thing is the effect. Once this cause is removed, the thing can
neither subsist nor be conceived. What Spinoza calls here a subversion of nature consists in
the ontological confusion by which the nature of man is substantialized and his existence
depends upon God's. Instead, the genetic explanation ofwhat causes the law turns the essence
of man into a mode of God's attributes, since the former is the effect (rather than the cause)
of the latter. This entails that man's nature is the effect of the existence of law, which in turn
coincides with the existence of God since it shares the exact same power.
When Spinoza shows that God does not rule nature according to His will, since nature is not
something outside God's essence; and when he demonstrates that man does not work out the
idea of God according to his image and likeness; he intends to claim that the relation between
naturallaws and divine laws is fictitious - or, in other words, imaginary. If Spinoza accepted
such a viewpoint, not everything in nature would be law, and law would have nothing natural
about it. The clear and complete separation of effects from their causes, which occurs by
placing a creator at the vertex and a passive and insensible nature at the base, entails imposing
upon nature a hierarchy that excludes a significant portion of it from divine intelligence and
from ontological power. For Spinoza, this is impossible. God does not exist outside nature;
42 Spinoza and Law
rather, God is nature's immanent cause and does not have the powerto
power to create it out ofnothing.
God does not rule over nature from outside; nor does God have a will establishing that nature
tends towards the actualization ofthe supreme good. God does not have the power to establish
which things are natural and which things are not, but He cannot but participate in the order
ofnature.
The image of a God who is king and lord of nature is mirrored by the image of the man
who behaves in accordance with divine commands in such a way as to consider that natural
laws are commandments issued by God - the man who assimilates the finalistic justification
of both nature and law. For hirn, God is the final and extemal
extern al cause (extern
(extemalal to both nature
and law) which brings about ab out order amidst confusion - the absolute legislator. From man's
viewpoint, who takes out the idea ofGodof God from the analogy with nature's absolute power, law
allows hirn to act as if nature were created in his image and likeness. Natural law is then a
divine, permanent and immutable order administering a form ofjustice which is invariable in
space and time. 4 For this reason, man's duties become commandments issued by God; those
who commit iIIicit acts sin against God's will, which is why they must be subject to sanctions
that equal the gravity ofthe
of the sin - the sin of having disobeyed the finality established by God
Hirnself. Natural law is inexplicable with regard to its cause, even though it is shared byall by all
men just as nature is shared. Men are no longer considered in terms oftheirof their power to act, but
rather in terms ofthe fact that they belong to divine nature and cannot but obey its laws.
According to Spinoza, it is possible to interpret all this very differently. lf If one considers
naturallawas
natural law as the power of everything that exists rather than an expression ofman's of man 's nature,
the just order between cause and end can be reset. In such a case, the existence of nature is
traditionally explained in terms of self-causality; the true cause substitutes the essen essence
ce of
man and it justifies all that exists as if it were the product of nature's will. The reversal of
perspectives is clear
c1ear and entails a very important consequence: the order of nature in the
classical
c1assical natural-Iaw context has no power to exist that does not belong to man. Within this
context, such a force becomes for man amorala moral duty of self-preservation and reproduction that
authenticates his rationality and his superiority over the order ofnature.
of nature. For the same reason,
even God belongs to the essence of man as a consequence of the confusion between cause
and effect. In this sense, God is a transitive cause, that is, the essen ce of man is expressed
essence
through God's will. Consequently, the order ofnature can be nothing more than an effect of
the prime cause, almost a reflection ofGod's
of God's expressed will. This order is equally subject to
the extraneous presence oftheof the divine substance and to the will ofofman,
man, which takes over the
place occupied by the divine will.
Alternatively,
Altematively, a genetic idea of the law criticizes this perspective by setting the order of
nature in the realm of causes rather than in the realm of effects. This occurs because, for
Spinoza, the idea of God is the idea of nature. In the light of this presupposition, as weil
as in the light of the method by which his criticisms to the finalistic conception of the law
follow logically and ontologically, it becomes possible to understand the importance of
Spinoza's reinterpretation
re interpretation ofthe
of the natural-Iaw system. We noted before that the finalistic idea
of law is instrumental in the emergence ofthe eternal
etemal truth in God. For Spinoza, it is exactly
the opposite: the idea of law comprises the etemal eternal truth, because it is the cause of man's
actions. The law has for Spinoza an equally essential function of revealing the eternal etemal truth
comprised in the divine laws. By genetically justifying his own actions, the individual is able
to understand more deeply his positive effects because he has a perfect knowledge of their
causes. Such knowledge derives from the fact that the law comprises eternal laws that, for
Spinoza, are the same as naturallaws.
The genetic perspective allows Spinoza to identify exactly that which induces someone
to act: 'all men are born ignorant of the causes of things, and that they all want to seek their
own advantage, and are conscious of this appetite' (EIApp; G 11, 78). These men consider
themselves free inasmuch as they succeed in accomplishing what is advantageous to them,
even though they 'do not think, even in their dreams, ofthe causes by which they are disposed
to wanting and willing' (ibid.). This entails that they 'act always on account of an end, namely,
on account oftheir advantage, which they want' (ibid.), even ifthey fail to control the causes
by which they succeed in satisfying their ends. By not managing to put together the necessary
means that allow them to reach their essential ends, these men remain permanently unaware
ofthe causes oftheir behaviour. They
consider all natural things as means to their own advantage. And knowing that they had found these
means, not provided them for themselves, they had reason to believe that there was someone else who
had prepared those means tor their use. (ibid.)
Natural things arise out of nature's universal order; they do not tend towards the sole end
of satisfying the individuals' own advantage. For Spinoza, it is out of the question to even
consider that nature is at human will's disposal. 5 Rather, to establish the law as means implies
setting up power in accordance with a completely different order. In this case, power does not
derive from a divine ability to direct nature 'according to the needs oftheir blind des ire and
insatiable greed' (ibid.). Such a superstition can be explained by the idea according to which
men, after having
considered things as means, could not believe that the things had made themselves; but from the
means they were accustomed to prepare for themselves, they had to inter that there was a ruler, or a
number ofrulers, ofnature, endowed with human freedom, who had taken care ofall things tor them,
and made all things tor their use. (ibid.).
By conceiving of God in their own image and likeness, by believing that nature had been
designed in view of their needs, men proved to have a merely instrumental idea of God. By
not finding in nature the very ends they desired, they judged natural things in accordance with
their way ofthinking, that is, as simple means of achieving the purpose of satisfying their own
advantage. Nature is an obstacle along the way leading to the satisfaction of one's needs. The
pejorative definition of 'malicious nature' sterns from such a hindrance. That is why they have
called 'Good' to everything that leads to health and to the worship of God, and 'Bad' to the
exact opposite. Good is that which provides the possibility ofputting things in order:
2 For Karl Löwith, this constitutes the heart of Spinoza's critique of modernity, of secularization,
and ofthe Christian-Platonic metaphysics constantly condemned by Nietzsche. See K. Löwith, Spinoza.
Deus sive Natura, in Sämtliche Schriften, vol. IX, Gott, Mensch und Welt in der Philosophie der Neuzeit
(Metzler, 1988).
44 Spinoza and Law
men prefer order to confusion, as if order were anything in nature more than a relation to our
imagination. They also say that God has created all things in order, and so, unknowingly attribute
imagination to God (ibid.).
An order thus created must be necessarily advantageous to men, at least to those who 'believe
all things have been made for their sake, and call the nature of a thing good or evil, sound
or rotten and corrupt, as they are affected by it' (iNd.). The first element of the superstition
intrinsic to the theological and philosophical belief called legal finalism is precisely the idea
that nature had an order once bestowed by God. In other words, nothing ofwhat comes about
can be explained in the light of a predetermined project, that is, of a providential design
inscribing the outcomes ofmen 's actions in God's mind - otherwise, the order ofnature would
be nothing more than a mundane projection ofthe potentia dei absoluta.
The problem of ends must be reinterpreted within the genetic framework, for man is not
a 'power inside apower' (TP 11, 6) but rather a part in the whole of nature, whose power
privileges none of its parts. Man 's power is coextensive with the power of all the other beings
that live with hirn in nature. The order he loves to attribute to things is merely the same order
he manages to give to nature. Consequently, insofar as he is part of nature and the holder of
a certain power coextensive with the knowledge he has of it, man is one of nature's causes
rather than its end. How, then, should things be judged, if man no longer has an exclusive
right over them? Spinoza answers that 'the perfection of things is to be judged solely from
their nature and power; things are not more or less perfect because they please or offend
men's senses, or because they are ofuse to, or are incompatible with, human nature' (EIApp;
G 11, 83). The original perspective is therefore reversed: instead of see king for the perfection
of things in nature's universal order, it takes into account the nature of the thing itself. The
revers al of perspectives follows from the critique of finalism: the essential reason behind
the superstition according to which nature functions in view of certain ends consists in the
theological prejudice that God created the entire world for man 's benefit. Once we demonstrate
that all this is merely the product ofthe imagination, it becomes possible to understand nature
from the standpoint of causes.
With regard to legal reasoning, the critique offinalism is as fundamental as the critique of
the royal representation of God. The entire natural-Iaw tradition is built upon a superstition:
all that occurs, occurs on account of man 's advantage. The strict distinction between divine
law and positive law, as weil as between etemal laws and naturallaws, emerges from this
mistake. The assumption ofa 'natural order' originally established by God is characteristic of
the natural-Iaw tradition. Such an order is not established by man. All its laws have a different
value when compared to those deriving from the so-called positive law. The idea of natural
law refers to an order conceived directly by God, which unfolds the universal normative
content comprised in the divine action par excellence: namely, the revelation of divine laws.
This revelation guides man towards his heavenly destination and determines the existence of
a law that overlaps all the others. The divine law appears thus as a permanent and immutable
order by which God rules the world. That implies the presence of an order in which all things
are inscribed and have their place. Natural law expresses the things' tendency to accomplish
the order willed by God; and this tendency is nothing more than the accomplishment of the
Good intrinsic to the divine laws revealed by God to men.
Spinoza and Law 45
According to the natural-Iaw tradition, the relation between natural law and positive law
connects two contemporarily-valid, albeit distinct, systems. This relation unfolds inside an
order that comprises both. In asense, the validity of positive law somehow overlaps the
validity of natural law, since it acts directly on things and on men. Natural law adapts itself
to positive law, since it does not have the same potential for effectiveness. The natural-Iaw
tradition asserts the validity of both realms of normativity inasmuch as neither one of them
can exist without the other. However, since every kind of law must be measured in view of
its effective and performative content, natural law seems to fade away inside positive law. In
order to overcome what Kelsen identified rightly as a contradiction,6 the natural-Iaw tradition
reacts by placing positive law after natural law, thus preventing the possibility of a conflict
between them in the first place. In virtue of the superior order willed by God, eternal laws
have given birth to every kind ofhuman legislation.
The Scholastic school of natural law created a well-defined structure: natural laws are
not merely those which guide man towards the achievement of excellence and perfection,
of honour and glory, of knowledge and the Good; they are also what makes divine laws
necessary. It is established that positive laws must restrain man by means offorce and fear from
performing evil actions, whereas divine laws must reveal to hirn his heavenly destination and
allow hirn to mend his nature's sinfulness, that is, his scarce knowledge of divine revelation.
The c1assical model's self-sufficiency is renewed clearly in Christianity, to the point ofturning
natural law into a coherent and complete system. 7 It is possible to describe such a system as
the affirmation of a principle of reason capable of justifying divine nature, as weil as human
nature, by means of an intrinsically ontological and axiological criterion. The existence of a
nature which pre-exists things and persons, produced by thought or by law, cannot but lead up
to an idealistic construction in which reality and thought coincide perfectly. This presupposed
and eternal nature is nothing more than the product ofthought rather than of astate of affairs.
This thought belongs to God's potentia absoluta, which establishes the existence of apower
that actually overcomes the power of laws, thus substituting law with theology. We return thus
to the old conceptual pair of ethicallegalism and legal moralism: those who are just and desire
to live happily must prefer duties over law; they can accomplish their essences' project, which
is the theological goal of the law, only by observing such duties. There is only one way by
which to follow the direction included in those duties: that ofrecognizing a superior authority,
a sage, a king, abishop, based upon the maximum moral and rational rectitude of virtue and
of a divine and human legitimacy. Natural law's conceptual pair ensues by essence: the law
is equivalent to morality; the just is equivalent to the legal; human actions, which are at the
heart ofthe distinction between law and politics, morality and religion, exist only insofar as
they obey the orders of a master.
In brief, if this is the ontological structure of natural law, then the Scholastic tradition
has placed the essen ce of things in God's mind. The theory of the ideal being of essen ces
hypostatized the difference between being and existence; it created a dualism between nature
and the thing, between intelligibility and fact, thus removing from the essence its connection
with existence by associating it with an unknown and unknowable ideal. s This is more than
sufficient to constitute a political theology of natural law. The origins of such a concept
comprise a distinction between a divine principle and a legal one, between the idea of a
foundational force (divine laws) and the idea of a force sharing out the law equally between
men (human laws). This theology derives from the logical-ontological confusion between
the principle of cause and effect (belonging to philosophy of nature) and the principle of
action and reaction (belonging to legal reasoning). Consequently, individual responsibility
is characterized from a moral and ontological viewpoint - it is thus transformed into sin and
guilt. Such a confusion is typical ofthe metaphysical dualism (Kelsen) that characterizes the
entire natural-Iaw tradition, and it thwarts the formation of adefinition of positive law because
it remains hostage to the dialectics developing between legal moralism (according to which
something is a crime because it is a sin) and ethical legalism (according to which something
is a sin because it is a crime ).9 This happens because there is still no distinction between the
political thing and the legal thing; on the contrary, both still coexist structurally.
2 Cf. Hans Welzel, Diritto natural e giustizia material (Milan: Giuffre, 1965), p. 93.
2 See L. Ferrajoli, Diritto e Ragione. Teoria deZ garantismo penaZe (Roma-Bari: Laterza, 2000),
p.461.
[4]
DIVORCING POWER AND REASON:
SPINOZA AND THE FOUNDING OF MODERN LAW*
Benoit Frydman**
* Trus artiele is the result of a fruitful dialoguc with Professor Arthur Jacobson. I am grateful
to hirn as weil as to the Bel\iamin N. Cardozo School of Law and the Jaeob Bums Institute for
inviting me to participate in Spinoza's Law. I also want to thank for their support and their most
valuable help: Professor Momoe Priee, Professor Christian Sandwig, Professor Isabelle ROrive,
Mrs. Sarah Hardman and the editors ofthe Cardozo Law Review.
** Professor of Law and Director of the Centre for Legal Phil050phy, Free University of
Brussels. (www.philodroit.be). E-mail address:[email protected].
1 Dctailed ac counts of these techniques can be found inter aUa in: Paolo Feltrin & Marco
Rossini, Verita in questione. 11 problema dei melodo in diritlo e leo{ogia nel XII secolo,
Bergamo, 1992; Bernardo C. Bazän et. al, Les questions dispuMes et les questians quodlibetiques
dans les Faculres de theologie, de droit el de mMecine, in Typologie des sources du Moyen Age
occidental (19&5); Dictionnaire de droit canonique, dir. Raoul Naz, VO Quaestiones, par Gerard
et
Fransen eh. Lerebvre, t 7, col. 407 -IR
2 See Suzanne Stone, In Pursuit 0/ the Counter-Text: The Turn to the Jewish Legal Model in
Contemporary American Legal Theory, 106 HARV L REV. 813 (1993); Itzhak Englard, Majority
Decision VS. Individual Tntrh: The Interpretation 0/ the 'Oven 0/ Aachnay' Aggada, Jewish Law
and Legal Theory, 15 TRADmON 37 (1975).
48 Spinoza and Law
3 This "hidden tradition" is named after Hannah Arendt's colleetion of essays: Die
verborgene Tradition: acht Essays (1976).
4 But see SAMUEL KURINSKY, THE ErGHTH DAY: THE HlDDEN HrSTORY OF THE JEWISH
CONTRIBUTION TO CIVILIZATION (Jason Aronson ed., 1994)..
5 BENEDICf DE SPINOZA, A THEOLOGlCO-POLITICAL 1"REAruSE AND A POLITICAL
TREATISE (RH.M. Elwes trans., Dover Publ'ns 1951) (1883).
6 LEO STRAUSS, PERSECUTION AND THE ART OF WRJ11NG eh. 5 (1952); ERNST CASSIRER,
THE PHlLOSOPHY OF ENLTGHTENMENT 197 (1968); TZVETAN TODOROV, SYMBOLISME ET
INTERPRETATION 137 (1978).
7 THOMAS HOBBES, LEVIATHAN OR THE MATTER, FORME & POWER OF A COMMON-
WEALTH ECCLESIASTICAL AND CNIL (1651). Leviathan was first published in 1651, nineteen
years oefore Theologico-Political Trealise.
Spinoza and Law 49
9 JACQUES LE GOFF, LES INTELLECTUELS AU MoYEN AGE (CoL Points, 2d ed.l985) (1957).
10 For additional discussion about quaestio dispulata, see HERMANN KANTOROWICZ, THE
QUAESTIONES DISPUTATAE OF THE GLOSSATORS, in REVUE D'HISTOIRE DU DROrrl-67 (1939);
G. Chevrier, Sur rart de ['argumentation chez quelques Romanisles medievaux au XIJeme el au
XIJIeme siecles, in LA LOGIQUE DU DROIT, ARCHIVES DE PHILOSOPHIE DU DRorr (1966).
11 Medieval trials were carried out in a completely different way. Mediev.! sentences were
generally without motives. See Philippe Godding, La Jurispmdence, in TYPOLOGIE DES SOURCES
DU MOYEN AGE OCClDENTAL 20-23 (1973).
12 See Bemardo Bazim, supra note l.
13 SAINT THOMAS AQUINAS, Summa Theologica, 1a Pars qu. I, in THE TREATISE ON LAW
(R.J. Henle Ed., trans, Notre Dame 1993) (1269).
Spinoza and Law 51
14 Id. al Ia Pars, qu. I, art. 5. Theology also ranks first aroong the sciences because ofthe
superiority of its object and of its purpose (i.e. Heteroa! bliss").
IS See SPINOZA, supra note 5, at 19D.
16 See id. at 10 ("[EJach has its separate province; neither c8ll be called the handmaid ofthe
other.").
52 Spinoza and Law
17 Cherem, in S. NADLER, SPTNOZA, A LIFE 120 (1999). The Cherem has no known author; it
is consists of the text of the ruling expelling Spinoza from the J ewish community of Amsterdam.
18 SPINOZA, supra note 5, at 98.
19 STRAUSS, supra note 6.
Spinoza and Law 53
22 See id.
23 AVERROES, THE DECISIVE TREATISE, DETERMINlNG THE NATURE OF THE CONNECTION
BETWEEN RELIGION AND PHILOSOPHY § 18. English translation, available al
http://www.wise.virginia.edulphilosophy/phiI205/Averroes.html.
24 For a discussion of the reception of More Nebllkim in thc thirteenth century Christian world
and the references made by scholastics 10 this book, see GILBERT DAHAN, L'ExEGI':SE
CHRETIENNE DE LA BlBLE EN OCCIDENT MEDlEVAL 296-97 (1999).
25 Proverbs 25: 11.
26 Schlorno Pines, lntroduction, to MOSES MAIMONIDES, THE GUIDE OF THE PERPLEXED
(Shlomo Pines trans., 1963).
27 SPINOZA, supra note 5, at 118.
Spinoza and Law 55
28 ld at 195.
29 ld. at 190.
30 ld. at 194.
31ld.atl13.
32 SPINOZA, supra note 5, at 99.
33 Spinoza Hentend interpreter, non l' etre, la 'nature des choses', ä partir de Ia Bible, mais la
Bible elle-meme comme une partie de I'etre, saumise en tant que tclle a ses lais universelles. Elle
n'es! pas la cle de La nature, elle en est un element; aussi, doit-elle etre traitee selon Ies memes
regles qui valent pour toutes les especes de la cannaissance empirique." CASSTRER, supra note 6.
34 About the c1assicaL meaning of the ward "history," see MICHEL FOUCAULT, LES MOTS ET
LES CHOSES 69 (1966). See also Laurent Jaffro, Spinoza:La Ques/ion TM%gico-Politique el Za
Rhhorique de la Philosophie, in FIGURES DU THEOLOGICO-POLITIQUE 91 (E. Cattin et. al eds.,
1999).
56 Spinoza and Law
35 For a detailed aecount of the historical method, see SPINOZA, supra note 5, at 10 1.
36 See id at 99.
37 TALMUD, Megiflah, attributed to Noah.
38 SPINOZA, sl/pra note 5, at 113.
39 Jd. at 99.
40 TZVETAN TODOROV, SYMBOLISME Er lN1ERPRErATION 140 (1978).
41 FRIEDRICH DANIEL ERNST SCHLEJERMACHER, HERMENEunQUE 120 (CharIes Bruer trans.,
1987) (1819); "Si on demande en outre pourquoi I'Ecriture n'est pas nee de fayon tout a fait
miracu1cuse sans faire appel ä des hommes, alofS il faut repondre que l'Esprit divin oe peut avoir
choisi cette methode qu'afin que nous reportions tout aux auteurs mentionnes. Voilä pourquoi cette
interpretation peut seule eire la bonne." However, Ibis rule is problematic far the interpretation ofthe
New Testament and should be adjusted according to Sch1eiennacber.
42 Tbe words "interna1 critique" and "extema1 critiquc" appeared later in philological
tenninology. Although Spinoza does not use them, they provide an accurate description of tbe
Spinozist methodology. SYLVAlN ZAC, SPlNOZA ETL'lNTERPRETATION DES ECRlTURES (1965).
Spinoza and Law 57
what language."43
Therefore, Spinoza thoroughly investigates the identities of the
"true authors"44 of the books that are inc1uded in the Old Testament. 45
Three chapters of the Treatise are dedicated to this enquiry,46 which
sometimes leads to surprising or scandalous results. Spinoza
demonstrates that, contrary to the almost universally accepted opinion,
Moses was not himself the author of the Pentateuch. The Treatise
provides the reader with an impressive series of arguments, drawn from
the text itself, proving that these books were written long after Moses'
death,47 by a single historian (probably Ezra, according to Spinoza's
own opinion), "who wished to relate the antiquities of the Jews from
their fIrst beginning down to the fIrst destruction ofthe city."48 Spinoza
also disputes the traditional opinion regarding the Book 0/ Job, which
the Talmud and Maimonides also attribute to Moses. He suspects that
this book was written by a Gentile before being translated into Hebrew
and canonized among the Prophetie Books. 49
In addition, the external eritique must also investigate the fate of
each book: "how it was fIrst reeeived, into whose hands it fell, how
many different versions there were of it, by whose adviee it was
received into the Bible, and, lastly, how all the books now universally
accepted as sacred, were united into a single whole."50 This
examination leads to the conclusion that the Biblical texts were
compiled, modifIed and altered, either involuntarily or maliciously, in
such a way that the "devouring tooth of time"51 profoundly corrupted
the original text.
By the end of this examination, the Bible has become fully
"historieal" in a twofold sense. First, Spinoza's method transforms the
Bible into an historical document. The Holy Books provide us with
interesting information about their authors and indireetly ab out the
events that these authors report, namely the lives and laws of the aneient
Hebrews and the early Christians. Nevertheless, it says very little, if
anything, that may be used for the present. For instance, when Christ
says: "But if a man strikes you on the right cheek, turn to him the left
52 2 Corinthians 11 :20.
53 See id. at 105-06.
54 ld. at 192.
55 Gadamer and Strauss both called "historicism" this modern way of considering the past.
See need to provide support here.
Spinoza and Law 59
must be mIed by civil law to seeure public peace; Spinoza handles it,
for the same reason, as a private matter, which should not be regulated
at all. For hirn, "laws dealing with speculative problems are entirely
useless."64 They are even hannful since "many schisms have arisen in
tbe Church from the attempt of the authorities to decide by law the
intricacies oftbeological controversies."65
According to Spinoza, tbe right to think and to feel freely is a
natural right that no one can abdicate,66 as no one can transfer to
another, even to the supreme power, bis power and his rights so as to
cease to be a man. 67 Moreover, the sovereign power should protect,
through the institutions of law, freedom of thought as weH as the rights
to free speech and to free teaching. "Such freedom is absolutely
necessary for progress in science and the liberal arts. "68 It is also
necessary "so that men could live together in hannony, however
diverse, or even openly contradictory their opinions may be."69 In a
democracy, which Spinoza claims to be the natural form of
government,1° "not only may such liberty be granted without prejudice
to the public peace, to loyalty, and to the rights of mlers, but ... it is
even necessary for their preservation."71
In the Theologico-Political Treatise, it is obvious that Spinoza's
"theological" examination of the Bible leads to substantial political
conclusions in favor of democracy and the proteetion of basic human
rights, especially freedom of speech and of religious beliefs. These
conclusions differ widely from Hobbes' political doctrine, despite the
fact that the two philosophers agree on similar premises. Beyond this
divergence and apart from Spinoza's speculative views about the ideal
political regime, which he strongly emphasizes in the conclusion of the
Treatise, as weH as Hobbes' Leviathan, makes a major contribution to
the shaping of modem law. What is modem law? How should it be
applied and interpreted? What is the relationship between modem law
and scientific reason? Spinoza's teachings on all ofthese issues are less
apparent in the Treatise than bis political ideals are. They have
nonetheless turned out to be essential to the understanding of modem
legal philosophy.
64 Ja.at 265.
65 Ja.at 262.
66 See HOBBES, supra note 7, at 258.
67 See id. at214.
68 Id. at 261.
69 Jd. at 263.
70 See id. at 207; see also SPINOZA, POLITlCAL TREATISE (Abraham Wolf trans., 1910)
(1610).
71 SPINOZA, supra note 5, at 265.
Spinoza and Law 61
The doctrine of Natural Law has a long history which may be traced back not
merely to Plato and Aristotle but even to the Presocratics. It took definitive
form in the hands of the Stoics and of the Roman lawyers and from them it
passed to the philosophers of the Middle Ages from Augustine to Aquinas. At
the Renaissance it had become common property among ethical, legal and polit-
ical thinkers, being redeployed by Vasq ue z and Suare z, who handed it on to
Althusius and to the writers of the seventeenth century. But throughout this
long history , and especia11y as concieved by the Stoics and in Roman Law, the
notion harbours an ambiguity which is in part a merit of the doctrine and in
part a source of confusion and difficulty.
The Law of Nature, from its very name, is the conception of a universal law
governing a11 things, inanimate, animate and human, but in the case of the lat-
ter it becomes two-fold because while human beings, like other animals are, by
nature, subject to appetites and impulses, their conduct is also governed by
rules which seek to restrain these natural propensities and to regulate their
exercise. In society, such rules are in part customary and in part imposed by
rulers upon their subjects; and as without society human life is scarcely, if at
a11, possible, society itself is seen as natural. But social living inevitably in-
volves rules and restraints upon conduct, so that these rules are also regarded
as laws of nature, especia11y such as appear to be universal to a11 nations. They
operate, however, at least in some measure, against natural appetites and in-
clinations; so if they are held to be natural laws, Nature seems in them to op-
pose itself, for the natural laws determining the natural behaviour of human
beings contend with the social norms which also claim to be natural. Moreover,
if laws imposed by rulers on their subjects are oppressive they are deplored as
contrary to nature; yet that there should be rulers authorized to impose laws
is a natural and necessary feature of organized society.
The source of the ambiguity lies in part in the fact that laws of nature, in
the sense of regularities determining the behaviour of a11 things, are entirely
universal and cannot be violated , for to say of any such regularity that it is a
law of nature is to say that whatever is subject to it always acts in accordance
with it. If it were not so, we should not ca11 it a law of nature. But social and
moral laws obviously can be and often are broken and if these too are said to
be natural it can hardly be in the same sense. Nevertheless, in the tradition of
the Natural Law doctrine it is especia11y the moral law which was identified with
the law of nature, no doubt due to the Stoic doctrine that to live according to
nature was the right and the best way of life, and to the fact that the jus naturale
of the Roman Lawyers, being universal to a11 men, was genera11y regarded as the
norm of justice and equity. But it is just he re that the two notions of nature come
70 Spinoza and Law
into conflict, for what is right and just is far from being what the psychological
and emotional nature of men always prompts them to do, so that if it is natural at
all it must be natural in some other sense. The contrast is between fact and value,
of which the latter is nowadays declared to be non-inferable from the former.
The difficulty was less obvious to the Ancients and the Mediaevals than it be-
came in the sixteenth and seventeenth centuries A. D ., because the Greeks
thought of the world (or Nature) as a living being with a soul of its own, and
the rules of human morality as those which enabled the parts of the human soul
to function in harmony. The laws of the n6A.L~ similarly aimed at social harmony,
so it was plausible enough to conceive them as coinciding with, or at least con-
forming to, a more general law that maintained harmony in the world at large
and in the world soul. It was equally understandable that in both cases this law
should be the law of reason: the law of the active intellect, as it appears in the
philosophy of Aristotle, where it is primarily the activity of God, in which the
human soul also intermittently and haltingly participates, and which all things,
according to their peculiar nature and level of being, strive to imitate. This
clearly would be the source of the universal law of nature and would encompass,
as derivative from it, the law of human nature. The remaining anomaly of the
conflict between human passions and rational action was explained away in terms
of the relation between matter and form, body and soul, as different levels of
perfeetion within the total system.
The conception of the natural world as a living being persisted into Mediaeval
times, but was overlaid by the Christian doctrine of the creation by God of the
world and mankind. Both were obviously subject to God's eternal law, from
which human reason was but an extension. 1 The law of nature was now plainly
identifiable with the law of reason and the tension between the natural inclina-
tions of man and his reason was eased by arguing that a11 natural tendencies,
having been ordained by God, were good, and that reason was also a natural
capacity enabling the passions and appetites better to attain their natural ends
by its regulation of them in the pursuit of the supreme good of the human soul. 2
The sixteenth and seventeenth centuries, however, brought a drastic change
in this position, for the Copernican revolution in astronomy introduced a com-
pletely new world picture, which, as developed by Kepler and Galileo, pre-
sented the universe as a mechanism - still the arte fact of God, no doubt - but
no Ion ger a living organism, and now devoid of soul or mind; so that matter and
mind came to be drastica11y separated and were held (under the influence of
Descartes) to be who11y different substances .
The law of nature now became 'the laws of nature', discoverable by men only
empirically; still, of course, universal in their scope, and incap able of violation.
Accordingly, laws of morality and society, which could be violated , had to be
distinguished from empirical natural laws quite sharply. Still, the term 'natural
law', continued to be applied to the law of reason and was closely associated
with, in fact, inseparable from, morality and legislation. The result in the
thought of moralists and political theorists was a cleft between the natural state
and the civil state of mankind , which the dictates of reason served to bridge.
Consequently, there is, in this period , a latent tension between the senses of
'nature' and of its laws, between that in which natural laws are conceived as
empirical laws, determining the behavior of natural bodies and the occurrence
of natural events, including the conduct of human beings regarded as natural
animals, and the sence in which they are laws of reason guiding mankind out
of the inconveniences and dangers of a 'state of nature' and into that of civil
society regulated by civil law.
The postulation of astate of nature in which mankind was alleged to have
lived before the establishment of the civil state is especially characteristic of
the political thought of the seventeenth and eighteenth centuries, from Althusius
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Spinoza and Law 71
II
The only philosopher of the day who succeeded in providing a coherent theory,
of nature, of human passion and desire , of reason, and of legal and moral norms,
is Spinoza. Gotius simply assurnes the existence and efficacy of a law of nature
which will suit his purpose of demanding rational conduct among men and nations.
Pufendorf tries, with questionable (and perhaps question-begging) success to
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72 Spinoza and Law
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Spinoza and Law 73
maintain itself in its own essence, and so far as it acts through its own essence
alone, its actions are its own and are free. The conatus, therefore, is , in its
purest and most adeq uate expression, the endeavour to increase the power of
action of the human entity. Ideas corresponding to action are always adequate
ideas, and the power of action is the power of reason. Accordingly, human na-
ture is two-fold in yet another way: it is both subject to passion and is capable
of action. It is both appetitive and rational.
The way in which this comes about is explained by Spinoza in Pt II of the Eth-
ics in the famous Scholia to Prop XIII and to Lemma VII. Bodies vary in com-
plexity; simple bodies are distinguished from one another only by quantity of
motion and rest; but they may combine with one another when contiguous so
that they transmit among themselves a constant proportion of motion and rest.
This constancy maintains the individuality of the complex body as distinguish-
able from others. Similarly, combinations of complex bodies can increase the
degree of complication continuously, as Spinoza alleges, 'up to infinity'. 9 In
complex bodies of this kind, we are told in the 32nd letter, the parts are
adapted to one another 'so as to conflict with one another as littIe as possible'.
What Spinoza is describing here is, fairly obviously, the nature of organic bodies,
which not only within themselves but also among their mutual relations (when
we 'continue thus in infinitum') maintain a dynamic equilibrium and a constant
over-all configuration, despite internal changes and processes varied to almost
any degree.
Now every body is the ideatum of an idea in the attribute of Thought which
is its mind. The 'mind' of a simple body is so rUdimentary as to be almost neg-
ligible (unless incorporated into that of a more complex organism) . But the more
complex and the more versatile the body, the more excellent and capable its
mind, so that, as we read in the Scholium to Prop XIII of Ethics, Pt. 11:
the more a body is better adapted than others for doing and suffering
many things at the same time, the more capable is its mind than others
of perceiving many things together; and the more the actions of the body
are dependent solely upon itself and the less other bodies take part (con-
currunt) with it in its action, the more is its mind capable of understand-
ing distinct1y.
Bodies as organically complex as the human body, therefore, while they re-
main finite and therefore subject to the impact of external causes, are also ca-
pable of 'doing and suffering many things at the same time', so that their minds
are capable of developed consciousness ; and the more self-dependent both body
and mind become, the more capable is the individual of adequate thinking. This
explains the two-fold nature of human beings, who are, on the one hand, sus-
ceptible to imaginative (or sensuous) consciousness and to passion, subject to
appetite, desire and emotional stress; and, on the other hand, able to think
and to act rationally. To give a detailed description of how the mind develops
from imaginatio to ratio and scientia intuitiva is not here our concern, but that
it can and does do so is the presupposition of Spinoza's political theory.
We should, however, observe that this process from inadequate to adequate
ideas is as much a product of the conatus as any appetite or desire . The conatus
determines us in all circumstances to pursue our own advantage in the pursuit
of self-preservation. But what we take to be our advantage depends, for Spi-
noza, on whether we think adequately or inadequately. For the most part human
beings think on the level of imaginatio, that ia, sensuously at the perceptual
and imaginative level, so that their appetites and desires excite in them violent
and often conflicting emotions. When they do so, as is common, they imagine
their advantage to lie in objects and pursuits which are mostly harmful and de-
structive. But they can, and sometimes do, reflect upon their experience and
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74 Spinoza and Law
the consequences of their behaviour. From such reflection they can learn more
wisdom, even at the level of imagination and passion; but much more signifi-
cantly a11 thought is self-reflective, and so leads to ratio producing adequate
ideas; and with the proper schooling and discipline, in the light of critical re-
flection, men can develop their power of action. This is their true good, and it
is then truly conceived and rationa11y pursued. When people do this they act,
as we say, mora11y; but in a11 cases, whether of passion or of action, they be-
have in accordance with nature.
This doctrine, yet again, runs parallel in several respects to that of Thomas
Aquinas, who writes, in the context already quoted:
Since, however, good has the nature of an end, and evil the nature of
the contrary, hence it is that a11 those things to which man has a natural
inclination are natura11y apprehended by reason as being good, and con-
sequently as objects of pursuit, and their contraries as evil, and objects
of avoidance. Therefore the order of the precepts of natural law is ac-
cording to the order of natural inclinations. For there is in man, first of
all, an inclination to good according to the nature which he has in common
with a11 substances, in as much as every substance seeks the preservation
of its own being, according to its nature; and by reason of this inclination,
whatever is a means of preserving human life, and of warding off its ob-
stacles, belongs to the natural law. Secondly, there is in man an inclina-
tion to things that pertain to hirn more specia11y, according to that nature
which he has in common with other animals ... Thirdly, there is in man
an inclination to good according to the nature of his reason, which nature
is proper to hirn. Thus man has a natural inclination to know the truth
about God and to live in society ... 10
Here too we find a 'conatus' to self-preservation, which issues in 'natural in-
clinations' (appetites and passions) as we11 as a rational capacity tending to
knowledge of God and (as we find likewise in Spinoza) to social order.
Everything so far accounted for is, for both these thinkers, the direct con-
sequence and extension of the operation of the eternal law of God (or Nature);
so that it is by nature that human beings are (in Spinoza's words) 'led by blind
desire'll and equally by nature that they are rational. Human nature is two-
fold, and by this dual nature human conduct is conditioned.
III
Among the writers of Spinoza's day only Hobbes is anything like as thorough
as Spinoza in tracing back human nature and society to its metaphysical and
psychological roots. Spinoza was strongly influenced by Hobbes and there are
similarities between their teachings, but the differences between them are more
significant than the likenesses.
The contemporary dichotomy between the mechanics of the physical world and
the rational consciousness of the human mind could be bridged by reducing ei-
ther side to the other, resulting on the one hand in materialism, and on the
other in idealism. Hobbes adopted the former expedient as Berkeley, later,
adopted the latter.
' ... The Universe , that is, the whole mass of all things that are' writes
Hobbes, 'is Corporeal, that is to say, Body; and hath dimensions of mag-
nitude, namely, Length, Breadth and Depth: also every part of Body, is
likewise BOdy, and hath the like dimensions; and consequently every part
of the Universe is Body; and that which is not Body, is no part of the
Universe : And because the Universe is All, that which is no part of it is
Nothing; and consequently nowhere. ,12
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Spinoza and Law 75
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76 Spinoza and Law
IV
In Spinoza's political philosophy this metaphysical and ethical consistency
bears fruit; for here he is able to adopt the language of natural law and nat-
ural right while yet avoiding the difficulties in which his contemporaries become
involved. He can dispense with a presupposed, quasi-historical, 'state of nat-
ure' and equally (although at first he tries out the idea) with an original con-
tract.
The law of nature is the law of God and whatever occurs or is done by nature
is the expression of God 's power. Whatever anything, or anybody, can do by
nature, therefore, is done by natural right. 20 For human beings, natural right
is the right to do what human nature prompts. When Spinoza speaks of 'the
state of nature' he does not refer to any supposed pre-societal eondition of man-
kind, but to the natural propensities, attitudes and emotions to which mankind
are liable. As it requires education, discipline and practice to beeome virtuous
and to live according to sound reason, men are by nature for the most part
swayed by passion and ruled by appetite, so that they are avaricious, envious,
vengeful and vindictive, often fearful and sometimes over-confident. Conse-
quently, if left unrestrained, they are 'by nature enemies'. But they can barely
survive, if at all , without mutual help, and it is, accordingly, obvious, even to
the untutored that life in society has overwhelming advantages.
In the Tractatus Theologico-Politicus, Spinoza contends that the wretched-
ness of life in isolation is so great that men must have been persuaded to agree
together to hand over their natural rights (or powers) to a collective body which
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Spinoza and Law 77
would compel them to live according to reason. 21 But no such contract would
ever be kept unless it were of advantage to the contracting parties, and none
can be trusted to observe it without furt her sanctions. Therefore, the author-
ity created by the contract, combining the powers of the group, must enforce
its observance by sanctions which leave none in doubt of the advantage of
keeping its terms.
In the Tractatus Politicus, however, the contract drops out of Spinoza's rea-
soning. Apart from social cooperation, the weakness and mutual enmity of men
left to themselves would be such that nobody would have power to achieve any-
thing significant and natural right would be nil; it would exist 'more in opinion
than in fact'. Moreover, 'without mutual help it is hardly possible for men to
sustain life or cultivate the mind'. Accordingly, natural rights are effectively
held only by persons in community 'enabling them together to defend the land
they inhabit and cultivate, to protect themselves and repel all force, and to
live by common consent'. Thus they hold rights in common and are led 'as if by
one mind'. 22
This is the rationale of the civil condition and of political authority and from
it flow, still by the law of nature, the rights of sovereignty the sanctions of
positive law and the duties of citizenship. All of these are natural and follow
necessarily from the dual nature of man, both passionate and rational, in his
constant endeavour to persist in his own essence and increase his power of ac-
tion. The norms of morality and law and the obligation to observe them derive
alike from that source, maintaining continuity between what is and what ought
to be. The law of nature is the same whether conceived as the eternal law of
God, the law of human nature or the law of reason, and the criterion of both
truth and value is one and the same, namely, what the intellect perceives as
constituting the essence of substance, through the adequate idea of which, the
adequate ideas of all things are conceived in scientia intuitiva.
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78 Spinoza and Law
19 Cf. Tractatus Theologico-Politicus, Ch. XVI, ' .. non magis ex legibus sanae menUs
vivere tenentur quam felis ex legibus naturae leoninae'.
20 Cf. Tractatus Politicus, Ch. H, 2-4.
21 Cf. Tractatus Theologico-Politicus, Ch. XVI. Throughout this chapter the influ-
ence of Hobbes is clearly apparent.
22 Cf. Tractatus Politicus, Ch. H, 15-16.
72
[6]
The State of Nature and Its Law
in Hobbes and Spinoza
Edwin Curley
University of Illinois at Chicago
Spinoza uses the tradition al language of the theorists of natural law, but
what he says in that language subverts the tradition. He says, unequivo-
cally, some rather shocking things, things we often, rightly or wrongly,
associate with the name of Hobbes: notably, that in the state of nature,
right is identical with power, and that if the civil state did not exist, every-
thing would be permitted.' But Hobbes is actually rather ambivalent about
advancing such doctrines. Spinoza is not. Though some readers of
Spinoza have been able to find only a c10se agreement between his view
of natural law and that of Thomas Aquinas,2 in fact his rejection of the
naturallaw tradition is thoroughgoing and radical; his law of nature is one
which
prohibits nothing except what no one desires and what no one
can do: not disputes, not hatreds, not anger, not deception;
without qualification, it is not averse to anything which
appetite urges. (TIP xvi, 9, IIII190/30-33)
TTP xvi, and repeated, with interesting variations, in TP ii) is, for a num-
ber of reasons, not adequate; (2) that a much better argument for the iden-
tity of right and power may be found in the chapter on divine law (TTP
iv); and (3) that if that argument is not conclusive, it at least constitutes a
powerful argument against natural law as it was conceived in the Judaeo-
Christi an philosophical tradition.
Before examining Spinoza's arguments, though, I want to document
my claim that Spinoza's position on natural law is indeed more radical
than that of Hobbes. We know, of course, that Hobbes says that the state
of nature is a war of all against all: and that in this war, nothing can be
unjust (L xiii, 13, 188). Though we may define justice in scholastic fash-
ion as a constant will to give to every man his own, this concept has no
application unless there is a sovereign whose power can determine what
belongs to each man (L xv, 3, 202). We know also that Hobbes says that
"covenants without the sword are but words" (L xvii, 2, 223), from which
it seems to follow that no contract in the state of nature is valid, that we
are never bound to perform what we have promised unless there is a
sovereign capable of making sure that everyone who has promised does
what he has promised to do.
And yet ... and yet Hobbes' position is more complicated than many
people realize. For example, though he is sometimes taken as the prototype
of a certain kind of amoralism regarding the conduct of war,5 he does not
accept, or not without reservation, the maxim that the laws are silent in
time of war. Consider the following passage from The Elements of Law:
It is a proverbial saying, inter arma silent leges. There is
little therefore to be said conceming the laws that men are to
observe one towards another in time of war, wherein every
man' s being and well-being is the ru1e of his actions. Yet thus
much the law of nature commandeth in war: that men satiate
not the cruelty of their present passions, whereby in their own
conscience they foresee no benefit to come. For that betrayeth
not a necessity, but a disposition of the mind to war, which is
against the law of nature ... nothing but fear can justify the
taking away of another' s life. And because fear can hardly be
made manifest, but by some action dishonoufable, that
bewrayeth the conscience of one's own weakness; all men in
whom the passion of courage or magnanimity have been pre-
dominant, have abstained from cruelty; insomuch that though
there be in war no law, the breach whereof is injury [i.e., a
violation of fight], yet there are laws the breach whereof is
dishonour.°
There are some standards, even in war. I presume that the killing of
unarmed prisoners would be one kind of action Hobbes would be Iikely to
regard as dishonorable. 7 He assumes that in war the rule of each person's
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Spinoza and Law 81
And this is not a special exception Spinoza makes for cases of promises
extorted by threats. He holds quite generally that
no contract can have any force except by reason of its utility.
If the utility is taken away, the contract is taken away with it,
and is null and void. (xvi, 20, III/192/25-27)'o
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82 Spinoza and Law
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Spinoza and Law 83
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84 Spinoza and Law
mention now the arts and sciences, which are also supremely
necessary for the perfection of human nature and its blessed-
ness. For we see that those who live barbarously, without an
organized community [politiaJ, lead a wretched and almost
brutallife, and that still it is not without mutual assistance,
such as it is, that they are able to provide themselves with the
few wretched and crude things they have. (TTP v, 18-20,
III/73/13-27)
There is, then, some cooperation even in the state of nature. In the
Political Treatise Spinoza will say that by nature men are enemies (TP ii,
14; III/281110). But I take this to be a broad generalization, not a strictly
universal one. It holds to the extent that men are subject to affects which
generate conflict, such as anger, envy, hate, etc. It does not hold in the
common enough case when they are dominated by other affects, such as
love, or pity. And it will not hold in the rare case when they are governed
by reason.
If Spinoza cannot, for lack of agreement with a crucial premise, use
the presumptively Hobbesian argument, what is his argument for his
shocking equation of right with power? On the face of it, it is the argu-
ment Spinoza uses in TTP xvi, 2-4, and redeploys, with what may be a
significant variation, in TP ii, 2-3. Let's take the earlier and simpler ver-
sion of the argument first:
By the right and established practice of nature I mean
nothing but the rules of the nature of each individual, accord-
ing to which we conceive each thing to be naturally deter-
mined to existing and acting in a certain way. For example,
fish are determined by nature to swimming, and the large ones
to eating the smaller, so it is by the supreme right of nature
that fish are masters of the water, and that the large ones eat
the smaller.
For it is certain that nature, considered absolutely, has the
supreme right to do everything in its power, i.e., that the right
of nature extends as far as its power does. For the power of
nature is the very power of God, who has the supreme right to
do all things. But because the universal power of the whole of
nature is nothing beyond the power of all individuals together,
it follows from this that each individual has a supreme right to
do everything in its power, or that the right of each thing
extends as far as its determinate power does. (III/189/12-25)
The first paragraph here states a conc1usion: that everything in nature has
a right to act as the laws of its own nature determine it to act. The second
paragraph derives a reformulation of that conclusion from a set of meta-
physical and theologie al premises:
1. God has the supreme right over all things, i.e., the right to do what-
ever he can do.
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Spinoza and Law 85
4. The power of the whole of nature is nothing but the power of all
the individuals in nature.
From 3 to 4 Spinoza concIudes that
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86 Spinoza and Law
topic in question. Grotius and Hobbes are plausible candidates for that
status in the realm of early seventeenth-century naturallaw theory.
Matheron has some interesting things to say about both Hobbes and
Grotius.21 But the payoff of this discussion, as far as the understanding of
Spinoza's argument is concemed, comes in the following passage:
No one will contest the fact that God has over all natural
things a sovereign right, i.e., as much right as he has power;
he has the right to do to them everything he is physically capa-
ble of doing, which is to say, everything. But to derive our
own individual rights from God's, there is no need las was the
case in Grotius' theory] ... to invoke any original "gift" [of
rights to man from God]; our individual rights do not result
from a transfer of right agreed to by God, they are God's
rights; if we take into account Spinoza's metaphysics, the
derivation becomes an identity ; in fact, Spinoza teils us, the
power of nature is identical with the power of God; therefore,
nature as a whole has as much right over its own parts as it has
power. But the whole of nature is nothing but the totality of
natural individuals. Hence, each individual has as much right
over itself and other individuals as it has power. (88-89)
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Spinoza and Law 87
seripture skates over, viz., that in Genesis the divine donation is to man as
a speeies, not to individual men. Grotius eites lustin, with approval, as
maintaining that initially the earth and all things on it were "the eommon
and undivided pos session of all men, as if all possessed a eommon inheri-
tanee.,,26 "In consequence," Grotius adds, optimistieaIly, "eaeh man eould
at onee take whatever he wished for his own needs" (ibid., my emphasis).
But if all men possess the earth and its fruits in common, it need to be
explained how individuals are free to take what they need when doing so
involves appropriating for themselves goods to whieh their fellow men
have an equally good claim. On Spinoza' s understanding of God' s
sovereignty, this problem simply does not arise.
Matheron's aecount, however, also calls attention to a problem which
he does not address: if the first assumption of our argument is a proposition
"known through itself," in the sense of being accepted without question in
the tradition to whieh Spinoza is responding, the second assumption
clearly does not have that status. It is rather a claim peculiar to Spinoza's
metaphysics, one which Spinoza weIl knows is contrary to the assumptions
his eontemporaries usually made: "[The multitude] imagine two powers
numerically distinct from one another, the power of God and the power of
natural things" (TTP vi 1-2; III/8113-19). In this context I think we must
not equate the multitude with the unlearned; rather I take it to include the
ordinary run of theologians. For according to Spinoza, this assumption of
two distinct powers is made by anyone who accepts miracles as a demon-
stration of the power of God. Contrary to these theologians, Spinoza
assumes, in a number of passages in the TTP,27 that the power of nature is
identical with the power of God. But so far as I can see, he does not argue
for that identity in any of these passages. And it seems he should have
argued for it, not just assumed it. If it should be suggested that Spinoza
does argue for this identity in the Ethics, we must remember that he wrote
the TTP for an audience which did not have access to the Ethics.
Perhaps Spinoza recognized this defect in the argument of the TTP.
For when he redeploys that argument in the TP, he supplies an argument
for the controversial premise:
Any natural thing whatever can be conceived adequately,
whether it exists or not; therefore, just as the beginning of the
existence of natural things cannot be inferred from their
definition, neither can their perseverance in existing. For their
ideal essence is the same after they have begun to exist as it
was before they existed. Therefore, just as the beginning of
their existence cannot follow from their essence, neither can
their perseverance in existing. They require the same power to
continue to exist as they do to begin to exist.
From this it follows that the power of natural things, by
wh ich they exist, and hence, by which they produce effects,
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88 Spinoza and Law
can be none other than the eternal power of God. For if any
other power were created, it could not preserve itself, and
hence, could not preserve natural things, but to persevere in
existing it would also require the same power it would require
to be created. (TP ii, 2; II1/276/13-26)
This is essentially the same as the argument of TTP xvi. It rehes crucially
on the assumption of God's sovereignty over all things (step 1 above). It
has now provided an argument for what was treated as an unargued
assumption in the TTP (step 2 above) . It makes no use of the assumption
stated in step 4 above, that the power of the whole of nature is nothing but
the power of all the individuals in nature. Because the argument is
couched from the beginning in terms of the power of natural things, rather
than the power of the whole of nature, that reduction is not necessary. The
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Spinoza and Law 89
only new element here is that this version of the argument makes explicit
what was probably taken for granted in the earlier version of the argu-
ment, viz., that God's right over all things is based on his power.
But therein lies a problem. Making that assumption explicit high-
lights the fact that the juridical tradition on which Spinoza is building here
is not in agreement about the basis of God's sovereignty. Grotius and
Hobbes may weil agree on the verbal formula that God has the supreme
right over all things. Hobbes, as we have seen, bases that right on God's
irresistible power. Grotius does not. Consider the following famous pas-
sage from De jure belli ac pacis. Grotius has been arguing that there is a
law of nature, and that its essence lies in leaving to others what belongs to
them, or in fulfilling our obligations to them:
What we have been saying would have a degree of valid-
ity even if we should concede what cannot be conceded with-
out the utmost wickedness, that there is no God, or that, if
there is a God, He is not interested in human affairs. The very
opposite of this view has been implanted in us partly by
reason, partly by unbroken tradition, and confirmed by many
proofs, as weil as by miracles attested by all ages. Hence it
follows that we must, without exception, render obedience to
God as our Creator, to Whom we owe all that we are and
have; especially since, in manifold ways, He has shown
Hirnself supremely good and supremely powerful, so that to
those who obey Hirn He is able to give supremely great
rewards .... 29
So when Grotius says that God is "the Supreme Lord of life and property"
(DJBP I, i, 10, 6), he does not mean by that what Hobbes would. The law
of nature is not valid simply in virtue of having been commanded by God.
God commands as he does because he recognizes the validity of a law
which does not owe its validity to his arbitrary will (DJBP I, i, 10, 1).
107
90 Spinoza and Law
•••
I find, then, no satisfaction in the official arguments of the TTP and
the TP for the thesis that in the state of nature right is identical with
power. So I turn instead to the discussion of natural law in TTP iv.
Spinoza begins that chapter by giving us a general definition of law:
The word "law" taken without qualification means that by
which each individual, or all the members of a species, or
some members of the species, act in one and the same fixed
and determinate manner. ... (TTP iv, 1; III/57/23-25)
We might suppose that (if this is really a law of physics) there are no bod-
ies of which this law does not hold true. Nevertheless, the law according
to which
Men give up something of the right they have by nature and
bind themselves to a certain way of life (ibid.)
108
Spinoza and Law 91
how things necessarily act, and the laws of the state, which prescribe how
men should act. And Spinoza is aware of the difference between these two
kinds of law, as he shows when he says that the word law seems to be
applied to natural things only metaphorically (iv, 5; III/58/28-29). He
knows that philosophers often use this metaphor;30 he often uses it him-
self,31but with the awareness that it is a metaphor; it is not a metaphor for
every philosopher who uses this language.32
But Spinoza has another reason for rejecting the definition with
which he begins. "Commonly," he says,
we understand by law nothing but a commandment, which
men can either carry out or disregard , since law confines
human power within certain limits, beyond which it extends,
and does not command anything beyond human powers ....
(iv, 5; III/58/29-33)
But this addition, I think, is only a defensive maneuver. The Latin version
of this passage does not contain the final phrase, and I believe that, in this
passage at least, the Latin version is prior to the English. 33
Spinoza-perhaps because he regards democracy as the most natural
form of government-permits law to be a rule which man imposes on
hirnself. Most laws, of course, are rules of life prescribed to men by the
command of another man (TTP iv, 70), because most men do not see the
109
92 Spinoza and Law
110
Spinoza and Law 93
The thought here seems to be that even an egoist can disregard a com-
mandment if he thinks that the loss he might suffer is contingent, and that
the person who has imposed the commandment might not impose the pun-
ishment. But he cannot disregard it if he conceives the command as an
eternal truth, which joins the penalty to the forbidden action by a neces-
sary connection. If Spinoza does, as I think, assurne (4), then he does
retain that element in the common conception of law, according to which
a law must be "a command which men can either carry out or neglect" (iv,
5,IIU58/29-31).
The next step is then that
(5) A law which would be a commandment of God, prescribing to men
like a legislator or prince, is an impossibility.
Insofar as it is a law, it would be a rule which the person to whom it is
addressed could break. Insofar as it is a law 01 God, it would be a rule
which the person to whom it is addressed could not break. We can con-
clude, then, that
(6) Every concept of naturallaw which conceives it as a divine com-
mandment, prescribing to men like a prince, is incoherent.
That, I think, is the fundamental justification for the definition of law
which makes it a rule of living necessarily imposed by man on hirnself or
on other men.
Suppose that our argument, up to this point, is sound. How does this
justify the equation of natural right with power? I take it that Spinoza's
view would be that the notion of a limitation on our natural rights, of a
naturalobligation to do something we are capable of not doing (or a natu-
ral obligation not to do something we are capable of doing) will make
sense only if the concept of natural law as a divine commandment makes
sense. 34 So if (6) is true, natural right is identical with power.
To this the reply might be that the whole point of Grotian naturallaw
theory was to free the concept of naturallaw from this dependence on the-
ology. We saw this in the passage from the Prolegomena cited above.
That is why Grotius defines the law of nature as a dictate of right reason,
rather than as a dictate of God (DJBP I, i, 10, 1). But to this Spinoza
might reply, with Hobbes, that it is improper to regard the dictates of rea-
son, as such, as laws; insofar as they are the dictates of reason, they are
merely theorems about what conduces to our preservation. Only if we
regard them as being also divine commands can we properly regard them
111
94 Spinoza and Law
112
Spinoza and Law 95
intellect are identical. 36 Spinoza must, I think, regard the attempt to distin-
guish will and intellect in God as misguided. It's not immediately obvious
what is at stake in affirming or denying this identity, but perhaps
reflection on the case of the human will and intellect will provide a clue.
When Descartes claims that the human will and intellect are distinct,
what he seems to have in mind is that there might in man be a conflict
between will and intellect in that we might reject what our intellect pre-
sents to us as true.]' Belief, for hirn, is a complex mental phenomenon
involving two elements, a contribution of the intellect and a contribution
of the will, each of which is necessary, gnd neither of which is sufficient,
for belief. The contribution of the intellect might be captUfed in the phrase
"what seems to me to be the case on the basis of the relevant evidence."
In the special case of certain clear and distinct ideas, the "relevant evi-
dence" might simply be the internal character of the idea. Those ideas are
ones we cannot, under any circumstances, refuse OUf assent to. Other
ideas, which do not have that immediate assent-compelling character, may
nevertheless become clear and distinct, and hence, assent-compelling,
when we come to see their connection with ideas which are intrinsically
clear and distinct. But Descartes insists that, where an idea is not clear and
distinct, it can seem to us to be the case on the basis of definite evidence
and that I can nevertheless reject what the intellect suggests. OUf ability to
refuse assent to ideas which are not clear and distinct is his reason for
claiming that we must recognize the will as a factor distinct from the
intellect, whose contribution is equally necessary to the occurrence of a
judgment.
Now Spinoza rejects this analysis of human judgment. He thinks that
the will and the intellect are identical even in man. B ut that' saline of
thought we need not pUfsue for OUf purposes. Descartes and Spinoza are in
agreement that the will and the intellect are identical in God. Why? A pos-
sible answer is that the kind of conflict between will and intellect which
Descartes insists on in the case of man is just inconceivable in God. Man's
ability to reject ideas which his intellect presents to hirn depends on the
fact that those ideas lack clarity and distinctness. But this is a defect which
cannot be present in God, who is, by definition, an absolutely perfect
being. Whatever seems to God to be the case must be the case and must be
known to hirn to be the case. A fortiori, he must believe it to be the case.
There can be no conflict between God's intellect and his will. Whatever
God understands to be the case, he must also will to be the case. And given
his omnipotence, what he wills to be the case cannot fail to occur.
I suggest, then, that Spinoza viewed the identity of will and intellect
in God as entailed by the concept of God as supremely perfect and as
entailing God's predestination of all human actions. Now whether or not
the philosophers of the Iudaeo-Christian tradition agreed about the identity
113
96 Spinoza and Law
of will and intellect in God, the dominant tradition certainly agreed that
God was supremely perfect and that his perfection entailed predestina-
tion. 38 Where there might be dis agreement would be over the question
whether God's predestination of all men entails the necessity of all human
actions. Aquinas certainly maintains that it does not, on the ground that
some predestined actions are nonetheless freely chosen, and hence, contin-
gent (ST I, xxiii, 6). But by Spinoza's time the leading Christi an philoso-
pher had declared that, though it was certain that we had free will, and
certain that everything was preordained by God, our finite intellects could
never grasp how these certain truths might be consistent with one
another. 39 Spinoza quite reasonably regarded this as a confession of defeat,
from which we should conclude, not only that free will is an illusion, but
that the concept of natural law which presupposes it is equally bankrupt.
Unpleasant though his conclusion may sound, Spinoza has a strong argu-
ment for the claim that in the state of nature power is the measure of right.
NOTES
114
Spinoza and Law 97
5. E.g. , Michael Walzer seems to have Hobbes very prominently in mind (along with
Thucydides) in defining the "realism" he is attacking in Just and Unjust Wars (New
York: Basic Books, 1977).
6. I, xix, 2. It is a nice question whether DC v, 2, where the same issue arises, is consis-
tent with this.
7. Cf. Grotius, Dejure belli ac pacis, 111, xiv, 3 (Abbr. DJBP).
8. Except where keeping my promise is forbidden by the civil law. Cf. EL I, xV, 13; DC
ii, 16; Lxiv, 27 , 198.
9. Cf. Lxiv, 18- 20, 196--97 and DC ii, 11 with EL I, xV, 10. The earliest work is free of
the requirement that the suspicion of nonperfomance be reasonable, which first appears
in the first edition of DC and is modified in the second edition. I have discussed this
evolution in more detail in "Reftections on Hobbes: Recent Work on his Moral and
Political Philosophy," Journal of Philosophical Research 15 (1989- 90): 169-250. See
particularly 179- 81.
10. Is this doctrine consistent with the teaching of the Ethics? See Alan Donagan (Spinoza
[Chicago: U of Chicago P, 1988 J 172f), who reads E IVP72 as committing Spinoza to
a fairly rigoristic view about the sanctity of promises. In personal correspondence,
Donagan suggests the Spinoza's views may have "matured" after writing the TIP. If
we assurne the the TP is at least as late as the final version of the Ethics (as I would),
then TP ii, 12, and iii, 14-17, seem to count against any attempt to eliminate the dis-
crepancy by postulating a change of view. Full treatment of this issue is beyond the
scope of this paper, but see Don Garrett, '''A Free Man Always Acts Honestly, Not
Deceptively': Freedom and the Good in Spinoza' s Ethics," in Spinoza: lssues and
Directions, ed. E. Curley and P.-F. Moreau (Leiden: BrilI, 1990).
11. Cf. Hallam ' s remark , cited in C. E. Vaughan, Studies in the History of Political
Philosophy, I (1960): 82: "In this treatise of Politics, especially in the broad assertion
that good faith is only to be preserved as long as it is advantageous, Spinoza leaves
Machiavelli and Hobbes at so me distance and may be reckoned the most phlegmati-
cally impudent of the wh oIe school." (Literary History of Europe, iv, sec. 76) That
Machiavelli really would limit his counsel to princes seems to me unclear. A key pas-
sage in The Prince (xviii, final par.) suggests a broader application: "neUe azioni di
tutti gli uomini, e massime de ' principi, dove non ejudizio a chi reclamare, si guarda
al fine, in the actions of all men, and especially of princes, where there is no court of
appeal, one judges by the resull." The translation is Bull's (Penguin, 101). Strictly
speaking, this sentence is merely descriptive, not prescriptive, in spite of the way it is
translated by, e.g., Adams (Norton, 51) or Bondanella & Musa (Viking Penguin, 135).
But since Machiavelli generally assurnes that we should do unto others as we can rea-
sonably expect them to do unto us, the boundary between description and prescription
is negotiable. What is most interesting for our purposes is the implication that people
who are situated as princes are, with no sovereign over them to adjudicate disputes, can
be expected to act as princes do. On Machiavelli ' s assumptions, this would entail that
people in astate of nature should behave as princes do in ci viI society.
12. For the ascription, see, for example, Vaughan, op.cil., vol. I, 66--67, or J. W. Gough,
The Social Contract 2nd ed., (Oxford, 1957) 105. For rebuttal, see Howard Warrender,
The Political Philosophy of Hobbes (Oxford, 1957) 312-23. McShea also ascribes to
Hobbes the doctrine that might makes right, though only in a qualified way: this is
what Hobbes sometimes says, and should always say if he were to be consistent with
his most fundamental convictions (op. cil., particularly 139 and 144). For an interesitng
recent discussion, see Greg Kavka, Hobbesian Moral and Political Philosophy
(Princeton, 1986), 355-57.
13. If I understand hirn correctly, Warrender takes the doctrine to be limited even further,
to God's political power, i.e., to his capacity to alter the will of his subjects, apparently
by making threats they cannot, on reftection , ignore (op.cil., 312-16). The key text
here is DC xV, 7. Warrender's intention seems to be to suggest that the irresistible
power which justifies God's actions involves a kind of consent on the part of man.
115
98 Spinoza and Law
If so, then I think he is misreading Hobbes, who insists in that same passage that the
"obligation which arises from contract ... can have no place here." The book of Job is
paradigmatic for Hobbes on this subject, and he certainly does not present God' s right
of sovereignty over Job as being based in any way on Job's consent (Cf. DC xv, 6;
Lxxxi, 6, 398-99).
14. DC vii, 3, my emphases. A later passage in DC (xii, 3) teils us that one who commands
without right, and is therefore an enemy, may rightly be killed, whether he is a tyrant
or not.
15. It does not seem to be the argument of either EL I, xiii, or DC i, where the natural right
of all to all (which = 3) seems to function apremise in reaching the conclusion that the
state of nature is a war of all against all (= 2). On this, see Jean Hampton, Hobbes and
the Social Contract Tradition (Cambridge, 1986) 60-61.
16. Perhaps Hobbes himself does not think the state of nature is literally a war of all
against all. He does seem to envision some, limited cooperation in the state of nature
Ce.g., in Lxvii, 3-5), as Greg Kavka has pointed out (op. cit., eh. iv). I discuss this in
"Reflections on Hobbes," sec. 2.
17. Or rather, is, since Spinoza does not think of this condition as merely hypothetical.
Like Hobbes (e.g., DC Pref, 14; Lxiii, 8), Spinoza takes the state of nature to be sim-
ply any condition where there is no government with the power to "keep men in awe."
So the Hebrews, after the exodus and before the covenant to Mt. Sinai, were in astate
of nature (cf. TTP v, 26--27, xvii, 26-27), just as any people would be who were living
through a civil war in which neither side had effective control over the territory.
18. I supply this qualification, which is not explicit in the sentence I am paraphrasing,
because it seems we must take it to be implicit, given the conclusion Spinoza derives
from it. I take "nature considered absolutely" to be equivalent, in this context, to
"nature considered as a whole."
19. "Spinoza et la problematique de Grotius," Anthropologie et politique au XVlf' siecle
(Paris: Vrin, 1986) 81-101.
20. Alluding to the Treatise on the Emendation ofthe Intellect, sec. 75, IV28/27ff.
21. E.g., he contends (85) that it is really Grotius who is at the origin of what Macpherson
has called possessive individualism.
22. DJBP I, i, 10, 6. Quotations from DJBP generally follow the Kelsey translation
(Oxford, 1925, Classics of International Law), though I will sometimes modify that
translation, as in this instance, substituting "murder" for Kelsey's "homicide," since it
does not seem accurate to say of the English term "homicide" that it implies criminal-
ity.
Grotius is no doubt thinking here of passages like I Samuel 15:3, where God com-
mands Saul not to spare any of the Amalekites, but to kill them all "man and woman,
infant and suckling, ox and sheep, camel and ass." Saul's unwillingness to comply led
to his rejection by God. Cf. Grotius' discussion in De jure praedae, trans. G. L.
Williams and W. H. Zeydel (Oxford: Clarendon Press, 1950) 4 (abbr. DJP).
23. Viz., that what God has shown to be his will is law. Cf. DJP, 8.
24. Le., in DC xv, 5, Hobbes' argument seems to be: if a man could have irresistible power
over other men, he would have an absolute right over them; men can't have such
power, but God can; therefore, God's right of dominion is absolute. So Hobbes there
moves from the human case to the divine, whereas Spinoza moves from the divine case
to that of any individual in nature.
25. A donation repeated in Genesis 9:1-3, cf. DJBP II, ii, 2, I.
26. DJBP 11, ii, 2, I. Cf. DJP, 11.
27. E.g., i, 44, III/28/11-12; iii, 9, IlI/46.5-6; vi, 9, IlI/83/8-9, xvi, 3, IlI/l89/20.
28. See, for example, the Third Meditation, AT VII, 48-49, or the Geometrie Exposition at
the end of the Second Replies, Axiom II, AT VII, 165.
29. DJBP, Prolegomena, sec. 11, Kelsey, 13.
116
Spinoza and Law 99
30. Cf. TTP xvi, 53n: "philosophers call the common rules of nature, according to which
everything necessarily happens, laws." (III/264/11-12). Perhaps he is thinking here of
Descartes (cf. Principles H, 37) or even of SI. Thomas, who gave the word law a very
broad sense (ST I-H, 90, I) and whom Suarez criticized for having used the word in a
sense which applies not only to men, but also to every other creature (De legibus I, i, I).
31. E.g., in E III Pref, IIlP2S, IVP50S, P57S, etc.
32. Cf. Descartes, Letter to Mersenne, 15 April 1630: "Don't be afraid, I beg you, to affirm
and publish everywhere that it is God who has established these laws in nature, as a
king establishes the laws in his kingdom" (AT I, 145). Of course Descartes uses a
metaphor here, in that he compares God to a king; but for hirn it is literally true that
scientific laws (including the eternal truths of logic and mathematics) are God's com-
mandments.
33. Tricaud has offered arguments which I find persuasive for the conclusion that a large
part of the Latin Leviathan was written before the English, in spite of the fact that is
was only published seventeen years later. Cf. Lxxvi, 8, where Hobbes says without
qualification that the laws of nature are not properly laws, and that that is what he had
said in the previous passage.
34. By a naturalobligation I mean one which does not depend on any human legal system.
The connection I attribute here to Spinoza between naturalobligation and naturallaw
is not one I can reeall hirn making explicitly, but it seems implieit also in Suarez, De
legibus, H, vi, 6, and in Pufendorf, De officio himinis et civis, I, ii, 3-5. So I take it to
be a natural point for a seventeenth-eentury philosopher to make against the Grotian
claim that there ean be a naturalobligation independently of the divine will. See the
discussion in Moral Philosophy trom Montaigne to Kant, ed. J. B. Schneewind (vol.
I,Cambridge, 1990), 88-89, 157-58 or in Jean Barbeyrac's translation of DJBP, Le
Droit de la guerre et de la paix, (Amsterdam: 1724), regarding seetion 11 of the
Prolegomena.
35. "Spinoza on mirac1es," Spinoza nel 350 anniversario della nascita, ed. E. Giancotti
0
117
[7]
SPINOZA AS NATURAL LAWYER
Aaron Garrett*
I.
* Boston University.
I Oefoe likely based Robinson Crusoe on the true tale of a Seots eastaway named Alexander
Selkirk (although there is some disagreemenl about Ihis). Selkirk was born in Scotland in 1676,
consequently the birth date and nationality Oefoe chooses for Crusoe are noteworthy.
2 Spinoza owned the first edition of De Imperio and either the first or the second edition of
Dejensio Fidei. Cf I HUGO GROTIUS. OPERA THEOLOGICA: OEFENSIO FIDEl CATHOLICAE OE
SATISFACnONE CHRISTI ADVERSUS FAUSTUM SOCfNIUM SENENSM 28-29 (E. Rabbie ed., H.
Mulder trans., AssenIMaastricht 1990) [herinafter OEfENSIO FIDEl]. See CATALOGUS VAN DE
BIBLIOTHEEK DER VERENIGfNG HET SPfNOZAHUIS TE RUNSBURG 23 (1965). Although De
Imperio was published much later than Dejensio Fidei. it was eonceived in 1614. See HUGO
GROTlUS, OE IMPERIO SUMMA RUM POTESTATUM CIRCA SACRA I (Hann-Jan Van Oam ed.,
trans., 2001) [hereinafter OE IMPERIOl. De Imperio Summarum Poleslalum Circa Sacra is a
primarily political work coneerned with authority over religion in the state, whereas Dejensio
Fidei concerns speeific heterodox religious doctrine Socinianism and its theory of Oivine
satisfaction. Grotius wrote the latter work to distance himself trom radical Socinians who were
also Remonstrants. Spinoza was likely attracted to the work due 10 his strong Soeianian
sentiments. Both works, but partieularly Chapters 2-4 of Dejensio Fidei, present accounts of
naturallaw.
102 Spinoza and Law
7 For adescription of Protestant natural law theory, see KNUD HAAKONSSEN, NATURAL
LAW ANlJ MURAL PHILOSUPHY (1996); see also TIM HUCHSTRASSER, NATURAL LAW THEORIES
IN THE EARLY ENLIGHTENMENT (2000); IAN HUNTER, RIVAL ENLIGHTENMENTS (2001);
RICHARD TUCK, NATURAL RIGHTS THEORIES (1982); RICHARD TUCK, PHlLOSOPHY AND
GOVERNMENT: 1572-1651 (1993).
8 I will consider Grotius' discussion of the natural law only as it could be derived from the
two works that Spinoza owned. Consequently I will not discuss Grotius' better known natural
law works. For the same reason I will consider Hobbes only through De Cive.
9 SAMUEL PUFENDORF, THE WHOLE DUTY OF MAN ACCORDING TO THE LAW OF NATURE §
7-8 (1673).
104 Spinoza and Law
Il.
10 How sanction was attached and what it means that it was attached was tenaciously
disputed.
11 OE IMPERIO, supra note 2, at III, 2.
12 Id.
Spinoza and Law 105
13 ld.
14 DEFENSIO FIDEl, supra note 2, at 11, 9.
15 DE IMPERIO, supra note 2, at 1I, 9-10.
106 Spinoza and Law
III.
peace and an aggrandizing war! Tbe latter will further my natural right
and power of acting, and the former will not. Why not choose the war?
Consequently, it is not at all obvious that the eeding of right is natural,
insofar as it is derivative ofthe fundamental naturallaw.
This explanation is not expressly made by Spinoza, but his own
explanation implies it. A Hobbesian law, such as the ceding of right,
depends on external circumstances. Insofar as it depends on external
circumstances outside of individual contral, it may or may not be
advantageous given shifting external circumstances. So ceding right
cannot be an immutable law, and therefore can only be fixed by human
decree.
There is another reason to worry about the ceding of right. Perhaps
there is a natural threshold to the ce ding of right, i.e., cases where to
cede right actually violates natural law. Grotius formulated this as the
idea that thoughts cannot come under external jurisdiction and therefore
cannot be taken away.22 Gratius derived this from Seneca, and Spinoza
uses arguments with a similarly Senecan emphasis23 to argue for a
nearly identieal position. 24
I don't mean to imply that for Hobbes there are not limits to the
ce ding of right-thcrc are. Rather, for Spinoza, Hobbcs' first law of
nature is unsatisfaetory as a natural law, sinee it is not fixed and
determinate in this general form due to externailimits on its application.
As with Grotius, for Spinoza, it is essential that a natural law be
rational, but equally important that it be regular and determinate, insofar
as it arises from a fixed nature.
Take for example one of Spinoza's passages on the law of natural
sociability for man:
[IJf he lives among such individuals as agree with his nature, his
power of acting will thereby be aided and encouraged. On the other
hand, if he is among such as da not agree at all with his nature, he
will hardly be able to accommodate hirnself to them without greatly
changing himself. 25
The rule is backed by a general naturallaw, independent of human
beings, that individuals of the same nature can eombine to form more
powerful beings. Hence, ifit is advantageous far humans to be soeiable
with others, it is in the same sense that it is advantageaus far frags to
combine with frags, fruit flies with fmit flies and so forth. As to how
this sociability ought to take place, some of it will fall under human
positive law (Ethics IVP73), and it will be dictated by the essences of
IV.
The equating of thc divine will and the intclleet is perhaps the most
heterodox doctrine of the TTP (Ill/48). One clear consequence of this
equation is that there is no meaningful distinction between the laws of
nature and divine mandates-all divine deerees are etemal, fixed and
immutable and henee just the laws of nature. This is a crucial point of
Positive passions, i.e., affeets, are defined as such, insofar as they lead
to greater power-joy is moving from astate of lesser power to greater
power-and negative passions to diminution of power-sadness is
moving in the opposite direetion. 32 The natural sanetion is in this sense
built into the natural psychological laws of the passions, and one needs
a rieh theory to take aeeount of the complexity of these sanetions. To
put it quite succinctly, the passion is its own re ward. And the scienee of
these passions is the natural law in sensus strictu, governed by
necessary laws. Spinoza derives mueh of this from Hobbes.
Compare the very brief theory of the passions offered by Locke in
Essay II.20. For Locke, all pass ions are rooted in pleasure and pain,
"the hinges on whieh our Pass ions turn,"33 which testify to Good and
EviL There is no need for Locke to build up a complicated theory of the
passions, insofar as pleasure and pain are primarily anchored in and
refer to external laws rooted in the vast system of obligations, rights,
and duties that along with the positive law are the system ofnaturallaw.
Or put differently, Lockean pass ions ean be "thin" beeause they refer us
to an extern al system that gives them meaning.
In Spinoza's philosophy we are left with something whieh diverges
from the mainstream natural law theory Locke assumes, but that is
strangely familiar to the twenty-first century reader. Spinozist natural
law is in part our rieh emotional and passionate psyehological life, the
ways the affects determine us and we aet through them, the rewards and
punishments they offer, and the ways in whieh they augment or
diminish our power. Psychology folIows, at least in part, the same sort
of necessary prineiples as the rest of nature and when we reeognize
these prineiples we recognize ourselves as parts of nature guided by
naturallaw. The more we recognize this and the part ofnature to whieh
we belong, the more we act in a constant and fixed way, and the more
we embody these neeessary principles to our benefit.
Human law is ultimately backed by naturallaws but is itself almost
entirely a ereation of the positive law. There are no natural hierarehies
to be diseovered, nor systems of duties and obligations. Mostly, there
are just systems of human positive law. Where for Grotius, and to a
lesser extent Hobbes, human positive law derived its force from divine
positive law and natural laws (in his sense), for Spinoza there was only
the confused and confusing world of human creations which, hopefully,
is guided by reason, in the more colloquial sense, and a rational
understanding of the laws of nature, but more often, unfortunately, is
not.
v.
So, in what sense was Spinoza a natural lawyer? Like others in the
"generation of 1632" he was influenced by Hobbes and Grotius. But
unlike them he was not a Christian, so much of the motivation for
preserving the divine positive law was absent. Consequently, building
on themes in Hobbes and Grotius-the analogy between naturallawand
natural science (Hobbes), the emphasis on fixity and the overlap
between positive and naturallaw (Grotius)--Spinoza created a briefbut
thoroughly naturalistic and necessitarian version of the natural law:
natural law as laws of nature in the sense of laws of physics or
psychological laws. This was in many ways presaged in Hobbes and
Grotius, but Spinoza took the radical step of naturalizing the divine and
human positive laws. This made hirn unique, insofar as a consequence
he dispensed with the hierarchy of legislators and system of duties,
rights and obligations central to the mainstream natural law. Spinoza
replaced the system of duties with an opposition of individual to
political system that seems very familiar (and was clearly presaged by
Hobbes). This is unsurprising, since Spinoza got rid of and naturalized
the divine positive law, and thus severed the necessary connection
between human positive laws (made historical in the 1TP) and the
natural law (made thoroughly naturalistic in the Ethics). We are left
with history and science, with man somewhere in between. Sixty years
later the mainstream natural law tradition went down a related path in
Hume's moral philosophy.34
Still, one can reasonably consider Spinoza a natural lawyer, just
one so consistently naturalizing as to gut much of what we associate
with the tradition.
Matthew J. Kisner
Having considered Spinoza's view of our good, we can now turn to reason's
guidance for obtaining it. One might expect reason's practical guidance
to be very specific, since the best course of action likely depends on the
particular circumstances; for instance, while it is usually in our best interests
to exercise, there are times when it may not be, say, when recovering from
an injury. Yet Spinoza holds that reason dictates practical laws, in other
words, universal rules for action, which are the subject of this chapter.
The first section examines Spinoza's discussion of practicallaws, arguing
that they are best understood as naturallaws. The second section considers
why reason would dictate lawlike commands. The section answers that
reason, far Spinoza, requires us to adopt a kind of impartial perspective
that does not attend to particular properties or one's position in space
and time. The final section considers how Spinoza's view of the natural
law bears on his view of autonomy. Since rationality consists in following
impartial and universal rules for action, it follows that our autonomy
does as weIl, a view that bears an unmistakable resemblance to Kant. The
section examines this resemblance, arguing that Spinoza's ethics provides
a different philosophical framework for defending claims often identified
with Kantian ethics, that we become autonomous by being moral and that
autonomy is the basis of morality.
I The same point is made by Nadler (2006, 227), who compares Spinoza's dictates to Kant's categorical
imperative. Curley (I973b) also argues that Spinoza allows for a kind of categorical imperative. His
reasoning is that all dictates of reason for Spinoza are hypothetical imperatives and since some of
them take necessary claims as their antecedents, then they always hold.
2 The other dictates mentioned in 4PISS are forms of these two. For instance, the command to desire
what brings us to perfection is a form of the command to seek our advantage. The second dictate is
also the basis for a dictate not mentioned in 4PISS, that freeing another ftom misery "is an action
that we desire to do as a dictate of reason" (4P50d).
3 In this way, all of the dictates imply laws, even if they are not franled as universal prescriptions.
For instance, his claim that "those who commit suicide have a weak spirit" (4pISS) implies a law
prohibiting suicide, because of our striving to increase our power.
4 For the moment, I will consider only how the second dictate qualifies and functions as a practical
law, leaving for the next chapter the question of why it is good for us to act for the good of others.
5 Interestingly, Hobbes also argued that many laws of namre boi! down to something like the golden
rule, though his formulation reqnires only negative commitments, that we refrain from doing to
others what we would not have done to ourselves: "do not that to another, which thou wouldst not
have done to thyself' (L 15: 35, 99).
Spinoza and Law 119
The difference between human law and divine law is basically the differ-
ence between political laws, which aim for the preservation of the state
6 Miller also recognizes the difference between our practical deliberation and that of the free man
(2003b, 129-33).
7 For a discussion of the connection between these two kinds oflaws in Spinoza, see Miller (2oo3a).
8 This point is more explicit in other naturallaw theories, such as that of Pufendorf, which distin-
guishes between moral and physical entities (in The Law olNature and Nations, Book I, Chapter I,
sections 2-6).
9 Spinoza's taxonOlny here is somewhat confusing, since he first divides laws into necessary and human,
then divides human laws into human and divine. So, there are, strangely, human-human laws and
human-divine laws. I will use 'human law' and 'diville law' to refer to the latter two kinds of "rules
ofliving," that is, practicallaws.
120 Spinoza and Law
and its citizens, and ethical laws, which direct us to the highest good.
Consequendy, we should not assurne, despite their tide, that divine laws
are religious. According to the definition, human laws are primarily con-
cerned with actions, whereas divine laws are also concerned with one's
inner states, whether one has "true knowledge and love of God." Spinoza
generally thinks of religion as concerned with action rather than inner
states. For instance, he conceives of faith, the province of religion, as
whatever one must believe in order to act with piety, whether or not it
is true (TTP 14, 3). For this reason, Spinoza understands much religious
law as human, as is evident in his account of the ceremonial law. He
claims that many commands from the Old Testament "contribute nothing
to blessedness and virtue, but had reference only to the election of the
Hebrews, that is, to their temporal and material prosperity and the peace
of their state, and therefore were only practically relevant while that state
lasted" (TTP 5, I).
We should note a few important differences between divine law and
human law, the first of which concerns their authority. On a superficial
level, one might say that human laws derive their authority from an external
source, whereas divine laws derive their authority from an internal source,
since human laws are only binding when they are commanded by one with
the power to enforce them, whereas divine laws have force because they
are commanded by reason. However, this way of framing the difference is
somewhat misleading, since even human law ultimately derives its authority
from internal desires to obtain rewards and to avoid punishments; external
enforcement mechanisms are only effective because of people's desires. It is
better to say, then, that human law and divine law are distinguished by their
enforcement mechanisms: human laws are enforced by means of external
rewards and penalties, whereas divine law is binding independendy of such
things, "not from fear of punishment and penalty, nor from the love of
some other thing, from which we desire to receive joy" (TTP 4,5).
The second difference concerns the rationality of the laws. Spinoza
gene rally understands human laws as created for the purpose of controlling
behavior as a means to some human end. As such, they may be irrational
in a variety of ways. The end or purpose of a law may be irrational, such
as satisf)ring the excessive appetites of a ruler. The means commanded
by the law may be irrational in the sense of not being required to bring
about the intended end; in this sense, it would be irrational to sacrifice
animals to win victory in batde. Finally, the methods of the law mayaiso be
irrational in the sense that they do not appeal to reason in order to secure
compliance. Indeed, the methods are quite likely irrational; since the laws
Spinoza and Law 121
n6 The naturallaw
must have sway over irrational people, human law usually relies on threats
and intimidation to ensure compliance. Divine laws, on the other hand,
must be rational. For they indicate what is genuinely useful for leading
one to her highest good, which is a rational end. Indeed, since the highest
good consists in using reason, it would be contradictory for the laws to
command anything contrary to reason.
A third difference, which is most important to the present discussion,
is that only divine laws are universal. Human laws depend on external
enforcement mechanisms, which entails that they only hold in particular
historical and political circumstances. Divine laws, on the other hand,
direct us to our highest good, which is common to all people. Consequently,
Spinoza derives divine laws by considering what bene6ts human nature
generally, rather than our particular individual natures. It follows that his
account of the divine law applies to all people in all circumstances. In
Spinoza's words, "[divine law] is universally applicable or common to all
men, for we have deduced it from human nature as such" (TTP 4, 6; see
also TTP 5, I).
At this point, it should be clear that divine laws are the same thing as the
dictates of reason from 4pI8s: practicallaws, given by reason, for promoting
our interests. Consequently, we can use his account of the divine law to
611 out his explanation of practicallaws from the Ethics. In particular, the
foregoing discussion of divine law helps us to see something not evident
in 4PISS that will be important later in this chapter and in the next.
Unlike human laws, which are only valuable by virtue of extern al rewards,
following the divine law provides its own reward: "the highest reward of
the divine law is the law itself' (TTP 4, 6). This is because the law is
commanded by reason and it increases our power to act in accordance with
reason. To illustrate the signi6cance of this point, imagine a case where
helping others leads to some harmful consequence to oneself, for instance,
where one has the choice of giving money to a friend in need or spending it
on herself. If we suppose that reason dictates a law ofbenevolence requiring
one to give away the money, it follows that there is some value to doing so,
solely because it is rational. It follows that obeying the dictates of reason is
valuable, independently of the consequences of doing so. IO
According to the foregoing discussion, Spinoza's practical laws look a
great deallike naturallaws, as theywere conceived by the tradition running
IO Of course, this is not to say that the value of following the rationallaw is sufficient to outweigh
possible harmful consequences to oneself; despite the value of giving the friend money, it may
ultimately be best not to do so. I will return to this point in the final seetion.
122 Spinoza and Law
II Ir is less clear that the Stoics held these views, firstly, because their understanding of God is very
different from later Christians. Furthermore, it is unclear to what extent they understood the natural
lawas offering strict rules. Accarding to one reading, the Stoics regarded the naturallaws as universal
laws from which we deduce our own behavior. See Annas (1993, 84-I08), Striker (1987, 218), Mitsis
(1993). According to another reading, there is no good evidence for thinking that the original Stoics
believed in universal exceptionless laws; rather, they were rough and ready principles. See Inwood
(1985, I05-n), Long (1983, 191).
Spinoza's effort to do so is likely indebted to Grotius' treatment of naturallaw in De jure belli ac
pacis, a copy of which was in Spinoza's library (Alter, 1965). Like Spinoza. Grotius does not think
that natural law requires God's will; they would hold "even if there is no God, or that the affairs
of men are of no concern to Hirn" (Dejure belli ac pacis, prologue, n). Grotius' view also emerges
from a general account of law, which distinguishes human law from divine law. Furthermore,
he distinguishes naturallaw from volitional divine law, thereby implying what Spinoza explicitly
embraced, that naturallaw is the sanle thing as a nonvolitional divine law. In this way, Grotius
provides a precedent for Spinoza's claim that natural laws, though not commanded by God, are
still divine, in some unspecified sense. Spinoza's philosophy, however, is better equipped to explain
nonvolitional divine laws, because he believes that everything follows in a necessary, lawlike way
from God's nature. Far a concise discussion of early modern natural law theories, see Darwall
(2006). For a longer treatment see Haakonssen (I996) and Schneewind (1998, chapters 2-8). For
discussion of Grotius, see Schneewind (1998, 69-70, 73-5). Far wark on Spinoza's connection to
Grotius, see RosenthaI (200l, 54°-3).
I) I should mention that the main overviews of the naturallaw tradition, Schneewind (1998), Haakon-
ssen (1996) and Darwall (2006), do not consider Spinoza's account of naturallaw. Presumably this
is because they lump his ethics together with other perfectionist ethics, which generally make less
use of naturallaw, such as Malebranche's.
'4 The claim that Spinoza upholds a naturallaw theory is upheld by Miller (2003a) and Harris (1984).
I will consider Curley's dissenting view (I991) presently.
Spinoza and Law 123
n8 The naturallaw
Given that Spinoza's naturallaws are not literal divine commands, one
might question how they have any normative force. Spinoza's previous
claim that the law provides its own reward suggests that the law has force
because it increases our power, in other words, because it is goOd. 15 I argued
in Chapter 5 that claims about the good are only normative in virtue of
our striving, which is equivalent to our desires. In light of this conclusion,
Spinoza's natural laws are best understood as normative in virtue of our
desire to persist in existence and increase our power. The general move
to explain the normativity of the natural law as arising from desire has
some precedent in Hobbes, according to a common interpretation. While
he holds that natural laws are divine commands, Hobbes understands
them as rational principles for satisfYing our desires, which, according to a
common reading, become normatively binding in virtue of our desires. 16
For instance, reason indicates that see king peace when possible helps to
preserve our lives, which we take as implying that we should seek peace,
since we want to preserve our lives. Spinoza's view is somewhat different
because he understands the natural law as indicating not the means to
satisfYing our desires, but rather the actions that follow from the power
of adequate ideas: for instance, that if one acts according to reason, then
she will act to the benefit of others. 17 Because of this difference, Spinoza's
dictates of reason, unlike Hobbes', identifY not just means to ends but also
the ends represented by adequate ideas, for instance, to increase our power.
Nevertheless, Spinoza's naturallaws, like Hobbes', are essentially descriptive
claims that serve as normative principles in virtue of our desires. 18 So, the
descriptive claim that rational people will act to the benefit of others implies
'5 I side here with the broad outlines ofCurley (1973a-b) against Rutherford (2008).
16 In making this claim I read Spinoza as following Hobbes in moving toward internalism, as described
by Darwall (1995. Chapter 3).
'7 This point is defended by Rutherford (2008, 499).
18 In making this claim, I disagree with Rutherford, who argues that the dictates of reason merely
describe the necessary consequences of having adequate ideas. While I agree that the dictates are
the necessary consequences of having adequate ideas, these consequences acquire normative force
from the practical perspective of an agent who desires to increase her power. Rutherford's objection
to my view hinges on the claim that the desire for rationality is not universal: ''the normative force
of such principles presupposes an individual's desire to realize her true advantage, or what will
certainly preserve her being, and Spinoza is clear that many, if not most, people lack this desire in a
sufficiently robust form for it to exercise a determining effect on their actions" (502). However, in
Chapter 5 I argued that we do, in fact, have a universal desire to increase our power because Spinoza
identifies out desires with out conatUJ. (I will presently address Rutherford's further claim that the
laws cannot be universally bin ding because the desire is not strong enough to determine all people's
actions.) My reading better explains the fact that Spinoza often writes as though the dictates are
normative principles and that they include only practical principles, not theoretical claims that also
necessarily follow from adequate ideas, for instance, that there is only one substance.
124 Spinoza and Law
'9 The interpretive line I am pressing here opposes Darwall (2006), who puts Spinoza's ethics in
the same category as Malebranche's, as orientating ourselves "toward a unified order of value"
(230). In other words, on his reading, Spinoza identifies a rational order in nature and sees ethics
as fundamentally concerned with matching ourselves to this order - a very Stoic reading. On
my reading, however, Spinoza sees the nature of reason itself as generatillg principles that derive
normative force from us rather thall an external source. In this respect, my reading moves Spilloza
doser to Darwall's reading ofKant and the Cambridge Platonists (230-3).
20 This is the view of Rutherford (2008, 502-3).
Spinoza and Law 125
Since Spinoza held that it is rational to act to one's own advantage, it is not
clear why he would conceive of reason as imposing practicallaws. Rather,
it seems that reason should direct our action only by helping us to calculate
what is in our best interests, which varies by situation. On this basis, one
might question whether Spinoza really regards following practicallaws as
important to a virtuous life. After all, many of Spinoza's naturallaws boil
down to the dictate to "do what is good for you," which is so vague that it
scarcely looks like a principle at all. This is not to say that Spinoza does not
have the philosophical resources to explain naturallaws. But, one might
think that he offers universal laws more as lip service to the natural law
tradition than because of a genuine commitment to the ethical significance
of following laws.
However, this way of thinking cannot be right, because practical laws
playaprominent role in Spinoza's account of what it means to be rational
21 Curley takes this claim as implying that the laws of nature prohibit nothing, since they are bin ding
in the state of nature and in the state of nature nothing is prohibited (1991,97). On this basis, Curley
concludes that Spinoza opposes the naturallaw tradition, even regards it as "bankrupt" (114). The
trouble with this reading is that it contradicts Spinoza's claims that the naturallaw does prohibit
things, for instance, suicide or harming orhers for no reason. Allison has a similar reading, though
his is based on a passage in the Tl' where Spinoza claims that "nature's right and established order
[institutuml ... forbids only those things that no one desires ... does not frown on strife, or hatred,
or anger, or deceit, or on anything at all urged by appetite" (2, 8). Allison reads this passage as
claiming that the naturallaw forbids nothing because he uses Wernharn's misleading translation of
"institutum naturae" as "naturallaw" (1987,182-3).
126 Spinoza and Law
and virtuous. To begin with, he claims that free men conduct themselves
in accordance with rules, such as the rule prescribing honesty. In fact, he
suggests that free men recognize some intrinsic value to following rules.
He claims that "the free man who lives among ignorant people tri es as far
as he can to avoid receiving favors from them" (4P70), on the grounds
that they may request a favor that is harmful. This reasoning implies that,
for the free man, returning the favor would be obligatory, regardless of
harmful consequences, presumably on account of some practical principle.
Moreover, Spinoza upholds the virtues of justice, faithfulness and honor,
all traits which follow from acting consistently, in a rulelike way: being just
requires that one apply the same standards to all parties; being faithful and
honorable arise from consistently following the same standards ofbehavior,
as opposed to selectively upholding standards only when it is in one's own
interests. For instance, insisting that you repay your debts to me, but then
refusing to repay mine to you would be both dishonorable and unfaithful.
This is likely Spinoza's justification for claiming that these virtues arise
from following the dictates of reason (4pI8s).
Why, then, would reason dictate laws? According to our previous dis-
cussion of the divine laws, they take a universal form, applying to all
people, because they are derived from a general idea of human nature.
This indicates that reason offers laws because it focuses on general rather
than particular things. So, reason offers laws rather than context-specific
guidance, because it only considers human nature, rather than my par-
ticular nature. This suggestion is supported by Spinoza's claim, explained
in the previous chapter, that reason does not represent particular, finite
things. While this answer goes so me way toward answering the question,
it is not sufficient, for it supposes that reason's dictates only take the form
of laws because of limitations of human reason. But Spinoza holds that
someone with unlimited reason, the free man - who "has only adequate
ideas" (4p68d), presumably of even particular things - acts in accordance
with laws, such as the command not to lie.
So, why does the free man recognize practical laws? Spinoza's answer
is that reason requires actions that can be universalized; in other words,
reason only recommends action if it would be acceptable for all people to
act in this way.22
If the free man, insofar as he is free, were to act deceitfully, he would be doing
so in accordance with the dictates of reason (for it is in this respect only that we
term hirn free) ... and thus to act deceitfullywould be a virtue, and, consequently,
22 While there has been very little work on this aspect of Spinoza's account, it is considered somewhat
in Yakira (2004).
Spinoza and Law 127
in order to preserve his own being, it would be better for every man to act
deceitfully ... which is absurd. (4P72sch)
This conclusion may appear puzzling, since the claim that we should
act on universalizable principles is a serious ethical commitment, which is
not evident elsewhere in Spinoza's ethics. If the reading is correct, it seems
that he should treat universalizability as a test or, at least, a requirement for
23 While Kant is most fanlous for using universalizability as a test for moral principles, this is not
unique in ehe his tory of moral philosophy. Cumberland makes a siInilar argument in A Treatise 0/
the Law ofNature, Chapter 5.
128 Spinoza and Law
Spinoza explains that Peter and Paul are drawn into conflict because one
experiences joy at the idea of having a thing and the other sorrow at the
idea of not having it. Since people are drawn into conflict by hatred and,
thus, irrationality, these ideas must be irrational. Presumably fuHy rational
people would not experience joy and sorrow at possessing or not possessing
the thing. In this way, Spinoza indicates that a fuHy rational person would
experience joy at the thing itself, withour regard to his particular relation
to it, such as whether he owns it. 24 Consequently, he concludes that if
Peter and Paul are both rational, then their mutual love of the object only
strengthens one another's love, rather than bringing them into conflict.
24 Spinoza makes a similar point in 5p20S: "Emotional distress and nnhappiness have their origin
especially in excessive love towards a thing subject to considerable instability, a thing which we can
never completely possess. For nobody is disturbed or atlxious about any thing unless he loves it, nor
do wrongs, suspicions, enmities, etc. arise except from love towards things which nobody Catl truly
possess."
Spinoza and Law 129
25 For a deeper discussion of Spinoza's view on time, see Bennett (1984, Chapter 8). Ir is important co
note that Spinoza's view on time is also connected co his doctrine of the eternity of the mind and
salvation. On this point, see Rutherford (1999), Allison (1987, Chapter 5), Lloyd (1994, II4-47).
26 See also letter 12.
130 Spinoza and Law
from God's nature (Ip28). Consequendy, the grounds for positing Caesar's
existence (or the existence of anything) are the logical grounds provided
by God's nature. Since these logical grounds are timeless, my grounds for
positing Caesar's existence are just as good as were Brutus' at the crossing
of the Rubicon. It follows that any denial of Caesar's existence arises from
confusion.
Spinoza seems to hold asymmetrical, though less developed, view about
space:
Corporeal substance, insofar as it is substance, cannot be divided. If I am now
asked why we have this natural inclination to divide quantity, I reply that we
conceive quantity in two ways, to wit, abstracdy, or superficially - in other words,
as represented in the imagination - and this is what we more frequendy and
readily do - we find it to be finite, divisible, and made up of parts. Bur if we
consider it intellectually and conceive it insofar as it is subject - and this is very
difficult - then it will be found to be infinite, one, and indivisible, as we have
already sufficiendy proved. (IpI5s)
On this view, it seems that any perception of space as comprised of distinct,
finite parts is a confusion of the imagination. Since reason represents all
things as parts of a single substance, we only come to understand things as
spatially distinct through our ideas from experience, which are inadequate
(2p4Id). Consequendy, Spinoza holds that spatial properties as conceived
in the imagination are not susceptible to rational understanding. 27 On
this view, my perception that I occupy a distinct space from you is a
kind of confusion. The symmetry is imperfect though, because whereas
Spinoza regards any temporal property as the result of confusion, he is
careful to allow that we may legitimately conceive of space abstractly in the
intellect.
This discussion indicates Spinoza's basis for conceiving of reason as
impartial. Reason does not recognize spatial or temporal properties, which
entails that it does not take account of the interests and concerns that
we have as a result of our particular positions in space and time. For
instance, reason does not comprehend the time since my last meal, my dose
proximity to the cake sitting on the grocery store shelf or, consequendy, my
particular craving for dessert. 28 It follows that reason's recommendations
27 Spinoza does not seem entire1y consistent on this point, for he seems to accept some kind of spatial
reasoning as rational. For instance, reason indicates that bodies strive to maintain a proportion
of motion-and-rest among their parts (4P39d), a notion which requires us to conceive of space as
divided up into distinguishable parts.
28 This explains why the free man would follow universal rules, even though he has ideas of all particular
things; he judges his best interests from a purely rational perspective that does not consider his spatial
and temporal perspective.
Spinoza and Law 131
29 For instance, while the need to eat is a general property shared by all people, my desire for this piece
of cake is particular to me in virtue of my proximity to the cake and the amount of time since my
last meal.
30 It follows that the naturallaw arises, to some extent, from formal properties of reason, because it
takes no account of spatial and temporal properties. This point provides a possible explanation for
Spinoza's otherwise cryptic remark: "Somebody may ask: 'What if the highest good of those who
pursue virtue were not common to all? Would it not then follow, as above, that men who live by the
guidance of reason, that is, men insofar as they agree in nature, would be contrary to one another?'
Let hirn take this reply, that it arises not by accident but from the very nature o{ reason that men~,
highest good is common to all' (4P36sch; emphasis added). In other words, the highest good cannot
be good only fot some people, because it is the nature of reason to understand the good without
attending to people's particular perspectives in space and time.
31 This discussion indicates a difference between us and the free man. Since the free man comprehends
particular things without the aid of imagination, he determines his actions entirely from the
132 Spinoza and Law
perspective of reason. In other words, the practical and rational perspective are the same only for
the free man.
Spinoza and Law 133
)2 Furthermore, treating virtue as a kind ofbenefit to oneself does not imply an immoral egoism, since
one's good can require acting for the good of others at considerable cost to oneself.
33 Annas (1993, 122).
34 My view here departs from, at least, the tenor, if not the substance, of those who take a disparaging
attitude toward the possibility of Spinoza explaining modern notions of morality. See Oarwall
(2006,235-7), and Schneewind (1998, 220-5). My view also departs from those who argue that, for
Spinoza, morality and ideas of good and evil are really confusions, which adequate ideas allow us to
overcome. See Schneewind (1998, 222), Oe Oijn (2004) and Frankena (1975).
Spinoza and Law 135
35 This distinguishes Spinoza not only from Kaut, but also from the Roman Stoics of the imperial era,
who identify the perspeccive of reason wich che perspeccive of the universe. On chis point see Annas
(1993,159-79)·
136 Spinoza and Law
13 2 The naturallaw
even imperfect duties arise from ends that we accept because they can
be universalized (MM 6:389). It follows that being moral requires us to
recognize that certain ends and maxims are universalizable - providing
reason for anyone to accept them - and, on this basis, to endorse them as
normative principles governing one's own actions. In other words, morality
requires self-Iegislation and, thus, autonomy.
Spinoza also holds that autonomy is the foundation for morality, in the
general sense that the justification for any ethical claim is the fact that
it promotes one's power and, consequently, her freedom and autonomy.
Furthermore, Spinoza accepts that autonomy is foundational in the sense
that being moral requires us to be autonomous, since both consist in
our rationality. In fact, Spinoza would agree that our rationality and,
thus, autonomy is a condition for recognizing lawlike moral demands. In
this way, Spinoza upholds Kant's essentialline of reasoning that we only
recognize and hold ourselves to moral requirements when we function as
autonomous individuals. We should not make too much of this last point,
however, since Spinoza holds that increasing our power is a matter of degree,
with correspondingly scalar value, whereas Kant holds that being moral is an
all or nothing affair. Consequently, Spinoza allows that the slightest degree
of rationality accompanies a degree of autonomy, even where one is not
sufficiently rational to recognize lawlike dictates. Nevertheless he accepts
that there is an essential connection between morality and autonomy, such
that being autonomous in a robust sense requires us to act in accordance
with universallaws.
In order to appreciate the significance of this second point of agreement,
it is helpful to compare Spinoza to other naturallaw theories. Most natural
law theories would probably agree that autonomy plays some role in our
good, such that following the law promotes our autonomy. Furthermore,
there are more Kantian versions of natural law theory, which emphasize
that our autonomy consists, at least partly, in the activity of legislating
and following the natural law.3 7 Spinoza accepts both of these claims:
since the naturallaw is rational, he holds that following the law promotes
our autonomy and that the activity of legislating the law is important to
our autonomy. However, Spinoza goes further than even the most Kantian
defenders of naturallaw, because he holds that following the law is valuable
precisely because it promotes our freedom and autonomy; in other words,
autonomy plays a critical role in the justification for morality itself.3 8
37 See Rhonheimer (2000).
38 I would be remiss ifI did not point out one glaring difference between the way that autonomy serves
as a foundation for morality in Spinoza and Kant. For Kant, autonomy is essential to out agency
138 Spinoza and Law
Conclusions 133
CONCLUSIONS
and, thus, OUf membership in the moral community. Kant holds that this aspect of OUf agency
warrants respect, which, in turn, incurs certain moral obligations. Spinoza, on the other hand, does
not treat OUf autonomy as essential to us as agents, though, as I will argue in the next chapter, he
does argue that OUf shared rational nature and, thus, our capacity for autonomy serves as the basis
for claiming that we should act for the good of others.
Spinoza and Law 139
We wish to show how Spinoza works out a theory of laws that intends to forgo its nonnativity.
Laws refer to relations, to certae ac determinatae rationes. However, Spinoza never tends to
relate such an order to aseparate and superior ordering realm - not even when he talks ab out
human laws.
Our second intention is to compare this conception with Saint Thomas Aquinas's theory
of laws. There is a singular and often unattended similarity between their theories, despite
all their differences and oppositions. This second point is connected to the first. The reason
is that Saint Thomas and Spinoza diminish the amount of normativity in their laws. This
much can be concluded from the relations between them; relations that can be explained
ultimately by means of a certain comparison between their critiques - a Cartesian critique,
and an Augustinian critique.
Cartesian science undervalues nature by withdrawing from its virtuality or potentiality,
that is, all immanent power. Cartesian metaphysics seeks being outside ofnature. Conversely,
Spinoza wishes to restore the rights of a nature gifted with forces and power. This gesture
cannot be found in Saint Thomas, who, against Augustinianism, wishes to show the supreme
principle exposed in the world and to reveal something ofits perfection.
The matter of laws is paramount to Spinoza's metaphysics. On several occasions, he claims
that ifwe fail to distinguish between the nonnative sense and some other sense attributable
solely to the substance's infinite activity, the road to truth becomes simply c1osed. 1 The danger
associated to the excessively human conception of laws is that men regard them as complete
commandments issued by a superior and free will, accompanied with extrinsic sanctions,
and addressed to their supposedly free will. All these traits contradict the truth of being. The
order of things comprises neither oughts nor a legislator nor, especially, God. Only those
eternal and necessary relations can be conceived by which God produces all things as he
produces himself. The sole modality of being is the necessity connecting a cause to its effect
- the insurmountable archetype of all the relations that produce beings in eternity and in
duration. Spinoza's philosophy is a philosophy of laws in the sense that all laws are formulae
of necessity. However, it is important to focus more closely on this detenninism in order to
understand its specifically Spinozistic sense.
All res are determined to exist and to act in a certain way. This determination has its origin
always in the thing itself or in the thing as it is modified by the action of another thing, namely
by the infinite actions of an infinity of other things. A law establishing a causal connection
* Originally published as Gerard Courtois, 'La loi chez Spinoza et Saint Thomas d' Aquin',
Archives de philosophie du droit 25 (1980): 159-189. English translation by Andre Santos Campos.
I Spinoza, Theological-Political Treatise, chapter IV, ed. Van Vloten & Land, pp. 138-141. Also
EIIP3Sch.
144 Spinoza and Law
between two states of a thing never expresses a destiny that is to rule extemally and beforehand
that to which a law is addressed. 2 All laws are immanent to that which they rule. [n addition,
they are nothing but expressions of that which they rule. Strictly speaking, a law of nature
does not rule over anything at all. [n Spinoza, nothing is ruled; rather, everything unfolds into
its consequences. A law ofnature is not the expression of ajatum and should not be regarded
as such. To speak of the laws of a thing's nature is to be able to deduce from that thing the
gapless process that arranges its behaviours in an intelligible order. A law of nature always
announces a relation of cause and effect in accordance with a deducible or adequate ratio.
lust as all the properties of a triangle are effects of the triangle's essence, all the properties
of any given existence must be deducible as its intelligible effects. A law of nature is never
a commandment, but rather an inescapable efficiency. Spinoza's entire 'pantheistic' system
prevents the possibility of a gap between nature and laws of nature; at the same time, it
ensures that these laws express universal nature or an individual essence.
[n order to attempt a comparison between Saint Thomas's and Spinoza's conceptions of
laws (111), we shall examine first and foremost what Spinoza means by laws that 'express a
necessity of nature' (I), as weil as the ways in which civil or human laws are exceptions to
such a necessity (11).
This problem must be approached from two different standpoints: that ofGod, and that ofthe
individual.
Spinoza's Deus sive Natura is neither subject to laws nor a legislator. 'God acts from the laws
of his nature alone, and is compelled by no one ... From this it folIows, first, that there is no
cause, either extrinsically or intrinsically, which prompts God to action, except the perfection
of his nature'.3 These themes distinguish Spinoza's God from Suarez's and Leibniz's views,
as weil as from Occamism and Descartes.
known by God; rather, they are thus known because they are true. In their logical form,
fonn, they
are independent from God. Divine will intervenes only by positing certain possibles into
existence.
Leibniz also admits an uncreated logic. There is in Leibniz a combination of ofpossibles
possibles or
eternal truths in which each one ofthem is an actualization ofthe principle ofnon-contradiction.
The eternal truths are the object of the divine intelligence; they are in God in the guise of
truths represented in his intelligence. 5 Leibniz's God is much like Suarez's God (and the
Cartesian man): his intelligence faces truths that he internalizes. When it comes to possibles,
God is subject to a logical necessity; his intelligence is a locus where he turns eternal truths
into his own truths. However, eternal truths are never his truths, strictly speaking, except in
the Suarezian mode of representation. 6 God's freedom and kindness emerge solely from the
choice ofthe best possible combination ofideas. 7
For Spinoza, such conceptions are utterly absurd. Nothing is more conflicting with his
approach to the divine as the idea that there is something outside of God that does not depend
upon hirn and which God should look up to as an extern al model. There is nothing outside the
substance-God in any fonnform whatsoever. 8
Moreover, the Suarezian-Leibnizian standpoint reveals its falsity in the blind escape
forward that leads it to concentrate in God's will (that is, in a principle of choice) what is
distinctively divine. This idea of choice between possibles is for Spinoza the worst type of
anthropomorphism. It implies that God is somehow unable to coincide with infinite existence.
It lacks a conception of divinity as the absolute affirmation of existence in all its forms. By
conceiving of God as a being who chooses (who refuses and who negates), it lacks the idea
that God is the source of an absolutely infinite productivity which leaves nothing outside
(except perhaps that whose essence implies contradiction).
'If he had created all the things in his intellect (they say) [my opponents], then he would
'Ifhe
have been able to create nothing more, which they believe to be incompatible with God's
omnipotence. So they prefer to maintain that God is indifferent to all things, not creating
anything except what he has decreed to create by some absolute will. But I think I have shown
clearly
c1early enough that from God's supreme power, or infinite nature, infinitely many things in
infinitely many modes, that is, all things, have necessarily f1owed,
flowed, or always follow, by the
same necessity and in the same way as from the nature of a triangle it folIows, from eternity
and to eternity, that its three angles are equal to two right angles.'9
angles. '9
Consequently, the cosmic model of a finite harmony between finite things entails the idea of
an unlimited abundance that we must face in order to rise to the highest concept ofthe
of the divine.
and prescinding from it.' See Francisco Suarez, Disputationes metaphysicae, 31, 12,40.12, 40. In Suarez, On
the Essence 0/ Such, On the Existence 0/
01 Finite Being As Such. 01 That Essence and Their Distinction, trans.
Norman J. Wells (Milwaukee: Marquette University Press, 1983), pp. 200-201.
2 Leibniz, Theodicy, I,T, 20.
2
Grotius expresses the exact opposite view when he claims that even ifwe were to imagine that
God did not exist, the maxims of natura11aw
naturallaw wou1d
would still preserve their truth and objectivity. See Grotius,
De jure belli ac pacis, 'Preliminary Discourse' , Xl.
7 Leibniz, Discourse on Metaphysics, §2.
2
EIP33Sch.
ETP33Sch.
2 EIPI7Sch.
ETPI7Sch.
146 Spinoza and Law
The laws ofnature are not chosen by God from a logical catalogue appearing to his will as
an extern al framework. But the opposite is untrue to Spinoza as weil: the laws ofnature or of
natures are not enacted by an unconditioned divine will.
God is not the author of the laws of nature. Nothing enables the thought of a legislator God
whose power is comparable to a king or a prince establishing laws ofnature.
'No one will be able to perceive rightly the things I maintain unless he takes great care not
to confuse God's power with the human power or right of kings (humana regum potentia vel
jure).no
Spinoza adopts the exact opposite view of Occamism, according to which all natural laws
are subject purely to the divine will. Biel, a disciple of Occam, claims that 'God does not will
things because they are right or just; rather, they are right or just because God wills them' .11
Descartes worked out his theory of eternal truths in the same sense. In order to preserve the
idea of divine transcendence, he writes to Mersenne in 1630: 'The mathematical truths you
call eternal have been established by God and depend entirely on hirn, just as much as all the
rest of his creatures. It is in fact to speak of God as of a Jupiter or Saturn, and to subject hirn
to the Styx and the Fates, to say that those truths are independent of hirn. Do not hesitate, I
tell you, to avow and to proclaim everywhere, that it is God who has established the laws of
nature, as a King establishes laws in his Kingdom.'12
Spinoza rejects these views by presenting his thesis of leges naturae as the unfolding of
God's interna I structuresY There is no distinction between God's essence and God's actions.
In addition, God's infinite power of existence is nothing except nature's infinite power. As a
famous scholium suggests, God is self-affirmation in the same sense that he is affirmation of
the world. 14 All the laws ofNature follow indivisibly from God's nature to the point that God
himselfwould have a very different nature ifthings could exist by some different nature or
produce effects in accordance with different laws. 15 The laws ofnature are the pure expression
10 EIIP3Sch
II Biel, as quoted by P. Vignaux, Dictionnaire de theologie catholique, 'Nominalism', Xl, 1, c 764.
12 Descartes, Letter to Mersenne 0/ April 15, 1630; in Descartes, Philosophical Essays and
Correspondence, ed. Roger Ariew (Indianapolis: Hackett, 2000), p. 28. Descartes opposes Suarez
openly when he writes: 'we must not say that if God did not ex ist, nevertheless those truths would be
true; for the existence of God is the first and the most etemal of all the truths there can be, and the only
one from which all the others fiow' (Letter to Mersenne 0/ May 6, 1630; in Philosophical Essays and
Correspondence, p. 29).
13 'God's power is nothing except God's active essence' (ElTP3Sch). God's essence cannot be
separated from its power. God is less an essentia than an essentia actuosa, that is, productive essence or
life.
14 'From the given divine nature both the essence ofthings and their existence must necessarily be
inferred; and in a word, God must be called the cause of all things in the same sense in which he is called
the cause of himself (eo sensu, quo Deus dicitur causa sui, etiam omnium rerum causa dicendibus est)'
(ElP25Sch).
15 ElP33.
Spinoza and Law 147
of God; they neither bind hirn nor are chosen by hirn. God does not establish them; they
express his infinite nature.
If one admits that there is no authorship without there being an ascendancy of the
author over his work, then strictly speaking, God is not the author of the laws of nature.
This conclusion transpires from Spinoza's ontological take on the genetic constructivism of
Hobbes's interpretation of Euclidian geometry.16 If one can deduce from the definition of
a given figure the properties of its angles, the relations between its si des, etc., then these
properties can be formulated as ifthey were universallaws ofthat figure. Also, the laws ofthe
world are like properties that are fully deducible from the eternal and infinite being to which
we call God. The leges naturae are hence the forms of existence and action that are immanent
to the divine nature's dynamism. And in so far as we know the latter, we can deduce from it
a great variety of laws.
How can we understand all this, once we consider solely apart or singular individual rather
than the eternal and infinite being? Can Spinoza maintain the immanence of laws to that
which they rule in such arealm?
The difference between the finite individual and God is that the latter acts solely by the laws of
his own nature, whereas the former acts by the laws ofhis own nature more or less constrained
by the laws of other beings and by the universal laws of nature. For any finite individual,
each event is the consequence of a composite relation between his internal dynamism and
an exterior realm which he adheres to or controls in a changeable proportion. 17 This exterior
realm can either support his vital effort or reduce it, even to the point of destroying it. 18
The changing competition between finite conatus permits the consideration of two typical
situations. The rare case of the virtuous man who sometimes acts per solas ipsius naturae
leges,19 and the more widespread condition ofthe individual who is passive in the sense that
in (eo) aliquidfit, vel (sua) natura aliquid sequitur, cujus (is) non nisi partialis (est) causa. 20
I. The first case is the free individual. He is the cause of events which are understood
by the laws of his essence alone. Any given individual is essentially a cause of effects that
are meant to actualize and reproduce indefinitely his own structure. The entire energy of a
singular desire functions in accordance with laws that bring ab out as a consequence such an
individual's perseverance in being.
16 Descartes is attentive to the linear order of reasons. But it is Hobbes who intends to reform
geometry in order to make it perfectly genetic, especially in his Examinatio et emendatio mathematicae
hodiernae (wh ich he wrote one year before the drafting ofthe Treatise on the Emendation ofthe Intellect).
He aims at excluding from it all the definitions and the demonstrations that are not per generationem,
as weil as at substituting the descriptio generate for the descriptio generationis. For further details, see
Martial Gueroult, Spinoza. 11-L 'lme (Ethique 11) (Paris: Aubier, 1974), pp. 480-487.
17 EIVP5.
18 ElllP4-5.
19 ElVD8.
20 ElITD2.
148 Spinoza and Law
'Each thing, as far as it can by its own power, endeavours to persevere in its being',21
and this endeavour 'is nothing but the actual essence of the thing';22 in other words, 'the
endeavour to preserve itselfis the very essence of a thing'.23 The principle of identity does not
hold simply a logical value - it is an ontological principle. The selfproduces nothing but the
self. An individual tends to nothing but hirnself.
It is important to notice how radical this viewpoint actually iso Many philosophers
sustain that each thing endeavours to persevere in its being; Spinoza's originality consists
in considering this endeavour, the conatus and the individual essence in a strict equality. For
Aristotle, for instance, I strive to live in order to live well. 24 For Malebranche, I strive to live in
view ofthe happiness that I reach in a pleasure. 25 But for Spinoza, the laws ofmy nature lead
nowhere except to the indefinite re-actualization of myself. Considering that all causes are
explained and expressed solely by their effects, then all the things ofwhich I am the adequate
cause refer to myself alone in so far as I am a divine fraction endeavouring indefinitely to
reproduce itself.
The laws of the conatus are not normative towards their subject. The individual, an
expression ofGod, is commensurate with the set of laws that define and sustain his nature. The
laws of the virtuous man are the laws of his nature. These laws are the means of expression
and the procedures by which an essence is defined and by which it produces those events that
preserve it in space and in time.
2. We have described heretofore the extreme case ofa being who is not the cause ofhimself
(that is a privilege exclusive to God), but who nevertheless is the cause of affections or of
events that can be explained by his nature alone. However, few individuals can consider
their life's events as moments in which their essence tends to reproduce itself completely. In
the vast majority of cases, what happens to an individual is not an outcome deducible from
his structure, but rather an affection combined with 'the common order of nature'26 whose
power surpasses infinitely the energy of those connections that are characteristic of singular
individuals. 27 An individual is subject to a significant number of events which depend upon
hirn only partially - any other way is impossible in the light ofthe communication between
modes and of the asymmetry of power between a singular individual and the laws of the
nature ofthose things and beings surrounding hirn. One's conatus is subject to a more or less
important alienation with regard to its principle and its effects.
Strictly speaking, most of the affections in an individual's life 'happen' to hirn rather
than being his all along. They cannot refer back to hirn as a sole cause but rather to the
bundle of concurring or convergent causes supporting them. It is important to emphasize
that the individual is merely apart of a whole and that he follows the laws of such a whole.
What he experiences is the effect of this whole that comprises hirn; a whole whose force
21ElllP6.
22 EITIP7.
23 EIVP22Dem.
24 Aristotle, Politics ITI 1280b33.
25 Malebranche, De la recherche de la verite, Euvres 1, p. 405.
26 'Our body's duration does not depend on its essence (alone) ... (it) depends on the common
order ofnature and the constitution ofthings' (EIIP30Dem).
27 'The force by which a man perseveres in existing is limited, and infinitely surpassed by the
power of external causes' (EIVP3).
Spinoza and Law 149
restrains his endeavour to the point that it is able to detennine his thoughts and actions only
partially.28 The individual can enter into an indefinite number ofwholes that relegate hirn to
a mere partial cause of 'his own life'. From the mediate infinite mode or from the totality of
existent essences that gradually determine themselves reciprocally to the more limited partial
totalities: the twofold relations in which an individual A alienates an individual B by forcing
B to identify himselfwith N9 or to transfer something to A;30 family relations; social groups;
a State's sovereignty; animal nature; the causes of iIInesses; the passing of seasons. All these
vital movements surrounding us detennine us to react to their presence, whether they wish to
absorb us or to repel us; they thus lead us to effects ofwhich we are the cause or the master
only partially. It is also in this sense that Spinoza suggests that we should not consider man in
nature 'as a dominion within a dominion' (veluti imperium in imperio).
Should we think ofthese totalities reducing us to mere parts as nonnative sets? The answer
is twofold, whether presented from the viewpoint of the whole or from the viewpoint of the
part.
The events that take place in a whole are not simple constant relations. The viewpoint that
fonnulates laws under the model 'It is so' could be occupied byan intelligent worm living
in the human blood: by observing the way by which the blood's particles communicate their
movements, it would bring out stable connections between the Iymph, the chyme, etc. It
would have the impression that its life's surroundings is subject to regularities or laws. But
what it would be unable to know is the fact that those constant relations derive from the
overall nature ofthe whole.
'That wonn would be living in the blood as we are living in our part ofthe universe, and it
would regard each individual particle ofthe blood as a whole, not apart, and it could have no
idea as to how all the parts are controlled by the overall nature ofthe blood and compelled to
mutual adaptation as the overall nature ofthe blood requires, so as to agree with one another
in adefinite way. '31
From such a viewpoint - that ofthe third kind of knowledge -, the observable regularities
are not abstract universals but rather consequences ofthe mere fact that they belong to one and
the same structure. As Matheron claims, 'what seems like an abstract universal to the parts is
a concrete universal to the whole' .32 This argument can be generalized. Once they are referred
back to the whole ofwhich they are expressions, alliaws may thus lose their exterior capacity,
their apparent nonnativity. Each totality is similar to the case ofthe virtuous individual. What
happens in such a totality is the manifestation of its singular nature; it is not subject to a law;
however, several movements and events that express its positivity may follow from its nature.
Consequently, the laws oftotalities, much like the laws ofvirtuous men, are not normative.
28 'We say that we are acted on when something arises in us ofwhich we are only the partial cause,
that is, something which cannot be deduced from the laws of our nature alone. Therefore, we are acted
on in so far as we are apart of nature, which cannot be conceived through itself without the others'
(EIVP2Dem).
29 ElllP13Sch-P18.
30 ElllP19-P26Sch.
31 Letter 32 to Oldenburg, 20 November 1665. On this matter, see Alexandre Matheron, 1ndividu
et communaute chez Spinoza (Paris: Les Editions de Minuit), 1968, pp. 54-57.
32 Jbid.
150 Spinoza and Law
From the viewpoint of the part, it is an entirely different matter. All parts find their laws
deflected, repelled, thwarted by the laws belonging to the other parts of the same whole. In
letter 32, Spinoza considers the parts' cohaerentia as a form of adaptation (accomodatio)
produced by a relation of forces. What proves it is the vocabulary of coercion that he uses
in order to explain the partial whole that is the blood as weil as nature as a whole. He thus
suggests that there is a similar identity in the way that totalities are constituted, whatever they
may be. 33 The intelligent worm fails to consider things from the viewpoint ofthe whole, and
thus cannot conceive quomodo partes omnes ab universali natura sanguinis moderantur, et
invicem, prout universalis natura sanguinis exigit, se accomodare coguntur. By conceiving
ofpassions as composed effects ofwhich the passive subject is merely a partial cause, he thus
also develops a theory of composed effects as a relation of forces.
'The force and growth of any passion, and its perseverance in existing, are not defined by
the power by which we endeavour to persevere in existing, but by the power of an extemal
cause compared with our own.'34
A new problem arises from the structure ofthe relation offorces: the exterior force to which
a given individual is subject may be so great that its alienation seems impossible to overcome.
It is evident that all parts maintain a relation of submission with the whole which they help to
compose. Should we thus consider that a whole acts towards its parts as a normative power?
The answer appears to be negative. Spinoza shows totalities supported by a quantum of
domination and by an asymmetrie relation towards its parts. However, he lacks the element
of legitimacy without which normativity cannot be conceived. For the part, its relative
domination is a contingent fact deprived of a moral value or of an obligation. The part is
not morally destined to being subject to the whole that coerces it. For the part, the part-
whole relation entails no norms, but only effects ofpower. More precisely, the effect that each
being is not a dominion within a dominion. Rather, each being is infinitely exceeded by other
natures that also desire to persevere in their being. This infinity of forces can be traced back
ultimately to God's necessity to express himselfin an infinity ofways.
The laws of nature in general cannot be traced back to a legislator nor to commandments,
once we place ourselves from the standpoint of God, of the virtuous man and of a given
whole. From the standpoint of an individual that is part of a whole, laws appear as normative
commandments only under the condition that they are not legitimized by force or by law. Can
we still uphold these conclusions in the realm ofphilosophy ofright?
We know now that God cannot be conceived in accordance with the model of a human
legislator. We can say that the etemal truths deduced from the divine essence are 'Iaws' ,
provided that they are regarded neither as commandments nor as norms. In the face of such a
theory, it is important to focus our attention on arealm in which the normativity of laws stands
33 In this same sense, the theory according to which individuals fit together in view oftheir degree
of complexity (EIIPI3Lemma7) shows that there is no opposition between the nature of minerals,
vegetables, animals, and men, but rather a simple progress of complexity due to the increasing number
ofunited parts belonging to each degree in the hierarchy.
34 EIVP5.
Spinoza and Law 151
at the centre stage of analysis: the sociallife. We might believe that we can begin to make a
legitimate usage of a 'human' sense of laws. However, that never really happens. Even with
regard to political societies, Spinoza continues to strive for the theoretical impairment ofthe
normative concept of laws.
One of the signs of such an attitude can be found in Spinoza's juridical language. He
thinks of civil relations by using the language of Jus rather than the language of Lex. Jus,
Jus naturae, Jus naturale, Jus belli, Jus civile (all often used in the plural form), make up
his terminology of law. The writings of P.-F. Moreau have noticed attentively that the term
Jus appears 335 times in the Political Treatise, whereas the term Lex appears only on 84
occasions. 35 In addition, the term Lex appears often in the sense of laws of nature, whether
within the general frameworl( we described previously or within very general formulae such
as salus populi suprema lex esto. The passages in which the term Lex has the ordinary sense
of legal rule are seldom. Since Spinoza's political thought develops the distinction between
natural right and civillaw, we shall try to show how he diminishes the normativity of laws in
both these instances.
35 'Jus et lex. Spinoza devant la tradition j uridique', Raison presente 43 (1977). See also the index
in Spinoza, Tractatus politicus / TraUe politique, ed. P.-F. Moreau and Renee Bouveresse (Paris: Editions
Repliques, 1979).
36 'Each individual thing has the sovereign right to do all that it can do; i.e. the right ofthe individual
is coextensive with its determinate power' (Theological-Political Treatise, chapter 16).
37 'Nature's right and her established order, under which all men are born and for the most part live,
forbids only those things that no one desires and no one can do' (lbid.).
38 Political Treatise ll, § 4.
39 'Since God has right over all things, and God's right is nothing other than God's power in so far
as it is considered as absolutely free, it follows that every natural thing has as much right from Nature as
it has power to exist and to act. For the power of every natural thing by which it exists and acts is nothing
otherthan the power ofGod, which is absolutely free' (Political Treatise ll, § 3). God's absolute freedom
is one ofhis power's main characteristics: see EIP17.
152 Spinoza and Law
norm whatsoever and his substance is indivisibly present in all beings. 40 Our freedom with
regard to any norm has thus an ontological meaning. It is one of the highest manifestations of
being showing through the absolute innocence of each and every mode.
We find here one of Spinoza's distinct traits. He defines a natural right without assigning
it to a specific subject or holder. The natural right that he recognizes in all beings (including
animals) is coextensive with the existing desires and abilities. And the most typical situation
is that in which desires are buried, deflected, alienated, repressed as the effect of other desires
and of other conatus surrounding each being. From then on, the desire legitimized in each and
every one is often an alienated desire which constitutes an alienated right. Once the individual
acts as the part of a set that exceeds and restrains hirn, he performs actions that are justified
by natural right but which pertain to a pseudo subject. Spinoza does not say that we are
responsible for that of which we are the total cause. Instead, he says that we are as innocent
of those actions performed by our true desires as we are of those actions expressing our
alienation rather than our strength. The difficulty in assigning a subject or a holder to natural
rights derives from Spinoza's doubts concerning the normativity of laws, especially if we
continue to sustain that a norm must be addressed to a subject.
Thus, Jus naturae has no normativity with regard to laws of nature. 41 Is it the same with
regard to civillaws?
40 EIPI2-13.
41Hobbes, in the light of his definition in the Leviathan (chapter XIV), seems to legitimize solely
those acts that contribute to the preservation of life. Right expresses the category of means to an end.
This opens the possibility of distinguishing between means that are adequate to the end (naturallaws)
and illegitimate means that cannot accomplish it. For further developments, see A. Matheron, op. cir.,
pp. 292-295.
42 Theological-Political Treatise, chapter IV, ed. Van Vloten & Land, p. 134.
43 1bid.
44 1bid. p. 135.
Spinoza and Law 153
'The laws and rules ofnature, according to which all things happen, and change from one
form to another, are always and everywhere the same. So the way ofunderstanding the nature
of anything, ofwhatever kind, must also be the same, namely, through the universallaws and
rules ofnature.'45
Spinoza approaches this problem by studying two existential positions: that ofthe ignorant
man and that ofthe virtuous man. We already know that what distinguishes them is a matter of
degree. An individual is all the more virtuous when he is able to master and to understand the
events that happen to hirn; and he is all the more alienated when he is unable to realize that his
life's events are effects ofwhich he is the cause. The contrast between the ignorant man and
the virtuous man, much like the one between the whole and the part, structures most ofthese
metaphysical problems and is a characteristic element of a pantheist philosophy.
Spinoza assurnes as a common-sense definition that a law is 'a rule oflife which man prescribes
for hirnself or for others for some purpose' .46 A law appears here as a means to an end.
The ignorant man - who is ignorant because he ignores the meaning and the conditions
of his desire - fails to realize that a law is part of a set of institutions which are means to the
end of collective peace. In turn, this end is also a means to the end of fulfilling one's desire
to self-preservation. The legislator knows that the ignorant man is unaware of this chain of
ends and means. He also fears that the ignorant man fails to respect this institution (since he
does not understand it), and so he presents hirn with an alternative end which he can either
desire or fear. However, this latter end has no relation whatsoever to the natural effect caused
by the aforementioned institution. For instance, the legislator establishes a tax law whose
effect is the State's preservation and ultimately that of the individual. Since the passionate
man perhaps sees this law as something that will weaken hirn, the legislator includes as a
consequence of such a law the idea that observance precludes the application of a given
penalty. In other words, observance will produce an immediate effect that has no analytical
relation to the nature of such a law. 47 Thus, he guarantees obedience, albeit perverting the
essence of Jus civile.
The ignorant individual obeys because he fears the sovereign. He senses the law as
something exterior, even though it is nothing but compulsion. The argument is the same ifthe
sovereign is loved instead offeared. Those who obey the laws in order to please their masters
or to be loved by them are engaged in a relation of charm that is still a relation offorce. 48
The transition from ignorance to a norm is very common. We can see it in Adam. God teils
hirn: You shall not eat ofthe fruit ofthe tree of good and evil; ifyou do, you will certainly
die (Genesis 11, 17). But there is no prohibition here. God informs hirn of the bad effect that
the fruits will have on hirn without showing hirn why they will necessarily produce such
an effect. Since Adam is ignorant both of hirnself and of the nature of the tree, he fails to
understand that there is a natural relation of cause and effect between the ingestion ofthe fruit
45 ElllPref.
46 Theological-Political Treatise, chapter IV, p. 135.
47 Jbid.
48 Jbid. chapter XVII, pp. 269-271.
154 Spinoza and Law
and the corresponding consequence. Since he is unable to deduce the harmful effect from the
cause (that is, the incompatibility between two different natures), he sees God as a prince
establishing a prohibition coupled with a sanction. 49
The Hebrew people, according to Spinoza, incurred exactly the same mistake with regard
to the Decalogue. The ancient Hebrews believed that divine words were commandments
coupled with sanctions, whereas they are revelations oftruths connecting certain behaviours
to ends in accordance with human nature. It is the ignorant man who sees norms everywhere
and who fills his anguishes with princes and masters prescribing laws to hirn. If God's will
is 'the asylum ofignorance' in the theoretical realm, in the practical realm it is normativity.
The normativity ofthejus civile subsists only in the eyes ofthe ignorant man. In so far as
he fails to comprehend the rational connection between the requisites of his desire and the
institution, he regards the larter as a yoke and considers its author to be a prince who rules
backed up by sanctions.
Man lives ex ductu rationis in so far as he thinks of his relations with the world by means of
adequate ideas and in so far as he has the power to arrange and to link together his existence's
events according to an order whose ruling principle is self-interest. 50 Is it necessary to claim
that laws are not normative for such a man? Spinoza took up this question in each of his
works dealing with the subject of law. 51 His answer is always the same: reason, in so far as it
develops the best means of achieving one's self-interest, coincides with positive institutions;
thus, the rational man who fails to follow reason also fails to follow the laws of the State
(imper ium ).
In the state of nature, reason envisages that desires obey necessary laws, which are not
inclined to favour the human condition by providence. Everything is precarious and fear
is omnipresent. Men can neither meet their own needs nor develop some kind of technical
knowledge. However, the human conatus is desire for security and prosperity. It requires the
terminus of such a condition. Consequently, it also requires the existence of a unique centre
of decision making that determines and delimits interpersonal relationships as weil as men's
relations to nature. In order to make sure that this institution 's decisions are more than mere
opinions, something further is required: that its force is capable of annulling the individuals'
forces in such a way as to induce exceptionless respect for its prescriptions, either in the free
man or in the man who fears the ultimate penalty. 52
By justifying such a summum imperium, is not reason establishing a normative centre? Is
this not contrary to the dictamen rationis that prohibits one to submit entirely to the judgement
of another? Spinoza provides three series of arguments in order to answer this objection.
49 'Adam perceived this revelation not as an eternal and necessary truth but as a law, that is to say,
an enactment from which good or ill consequence would ensue not from the intrinsic nature of deed
performed but only from the will and absolute power of some ruler' (lbid. chapter IV, p. 139).
50 EIVP23-26: EVPI0.
51 EIVP73; Theological-Political Treatise, chapter XVI, pp. 262-264; chapter XX, pp. 304-312;
Political Treatise TI, §§ 20-22; TIT, §§ 6-9.
52 Theological-Political Treatise, chapterV, pp. 148-149.
Spinoza and Law 155
First, the rational man may relate the sovereign's decisions to the finality of laws, which
are peace and security. In other words, he may understand that the necessary effect of such a
law is the establishment or the preservation of a peaceful coexistence between citizens. He
abides by the contents of such laws as he abides by the conclusions of rational arguments -
he is thus not subject to a commandment. 53 Let us consider a law that is enacted in order to
restructure the functioning of the courts: reason assesses that such a law will have the effect
of improving the application of the laws; the good application of laws is the cause of their
force; this force is none other than the State's force, whose solid institutions have the effect
of guaranteeing collective security; individual security and prosperity are consequences of
collective security and they are the very conditions from which reason develops; therefore,
the rational individual may recognize his own desire in such a law; he identifies himselfwith
its measures as ifthey were rational conclusions. In this argument, there is a normativity-free
determination ofthe following causes and effects: arearrangement ofthe courts; an improved
application of laws; the force of laws; the strengthening of laws; the strengthening of the
State; collective security; individual security and prosperity; conditions favourable to reason;
reason abides by the new law. There is no element of authority in this sequence; it is more like
a c10sed circuit self-regulating mechanism. Reason supports what interests hirn; what interests
hirn strengthens reason; etc. 54 But can this chain of positive effects be broken? That is the
problem ofthe attitude ofreason when facing bad laws.
According to the second series of arguments, if the man who lives under the guidance of
reason estimates that the summae potestates have issued laws with pemicious effects, he is
still bound to respect their decisions because reason commands that one must choose the
lesser oftwo evils.
'If a man who is guided by reason has sometimes to do, by order of the commonwealth,
what he knows to be contrary to reason, this penalty is far outweighed by the good he derives
from the civil order itself; for it is also a law ofreason that oftwo evils the lesser should be
chosen. Therefore, we may conclude that nobody acts in a way contrary to what his own
reason prescribes in so far as he does that which the law ofthe commonwealth requires to be
done.'55
The partial disorder or the limited ineffectiveness of a bad law is counterbalanced by the
continuance of the benefits that man derives from the state of society. Even in this case,
the man who lives ex ductu rationis does not obey a norm. The lesser evil is in fact a good,
since good and evil are merely names we give to things when we compare them with one
another. 56 This idea overcomes the conception ofthings as good or bad in themselves. As a
53 'A civil order is established in a natural way in order to remove general fear and alleviate general
distress, and therefore its chief aim is identical with that pursued by everyone in the natural state who is
guided by reason, but pursued in vain' (Political Treatise lll, § 6).
54 The free decision to submit to the State's laws is more likely in a democracy 'since obedience
consists in carrying out orders simply by reason of the authority of a ruler, it follows that this has no
place in a community where sovereignty is vested in all the citizens, and laws are sanctioned by common
consent. In such a community the people would remain equally free whether laws were multiplied
or diminished, since it would act not from another's bidding but from its own consent' (Theological-
Political Treatise, chapter V, pp. 149-150).
55 Political Treatise TIT, § 6.
56 EIVPref; EIVP65. We can find the same gradual scale ofgood and evil in Leibniz.
156 Spinoza and Law
result, the philosopher may always follow the good in accordance with reason, for what he
deerns good is not a quality inherent in an action or in a thing, but rather a label applied to
aseries of comparisons: the comparison of things with one another, and the comparison of
things with the individual subject hic et nunc. However, ifthe rational individual can always
follow the good when choosing the lesser evil, does this mean that laws can worsen without
his contribution?
According to the third series of arguments, even ifwe admit that in a liberal State nobody can
act as he pleases - not because he promised not to do so in a social contract, but rather because
that is contrary to the essence of the rationally-justified State - we can still contribute to the
improvement ofpublic institutions by means ofpublic teaching or ofpublished writings. 57
But what can one do when bad laws keep multiplying, that is, laws that fail to produce
reason's intended effects? [n such cases, the fearful man's fear and the rational man's
adherence easily changes into indignation; as a result, laws are no longer complied with. 58
Spinoza has no problems with the possible viability of civil disobedience and revolution.
[n fact, one is never conscientiously connected to the State. The ignorant man only obeys to
the extent that he is impressed. He only follows laws motivated by fear or by love. There is
neither respect for a norm as such nor the recognition of a duty, but rather a simple relation
offorces. From the moment that the State no longer impresses hirn but only disgusts hirn, he
begins to fight it with all his strength. As for the rational individual, he is not bound to respect
a prior engagement as Rousseau suggested. [n aState, the wise man's obedience is always the
result of calculation; it is momentary and continually questioned by his examination of how
means and ends combine. Therefore, ifthe wise man believes that peace and security require
it, he will easily join the company of discontents.
The normativity of both natural and civil laws is nowhere to be found. Deus sive Natura,
the source of all laws, is not a normative legislator; it neither imposes an exterior model
nor practices transitive actions upon individuals. [n addition, no individual exists alone;
consequently, he is subject to external and transitive constraints; but these are not norms.
God had the authority to address norms to subjects; however, God did not have the exteriority
without which norms cannot be conceived at all. Contrariwise, finite things have exteriority;
but they do not have the authority. A norm is a complex thing - it must be simultaneously
inside and outside the subject. The subject must 'surrender' to the norm, abandon his position
and come c10ser to the place it assigns to hirn. But this is already accomplished by some kind
of constraint. [n order for constraint to become a norm, it is necessary that the subject adheres
to it as a requirement of his own nature; it is necessary that he sees in it the figure which he
must resemble or which constitutes the means to his ends. [n this sense, the subject must be
able to identify himselfwith the norm - to recognize it as his own. Spinoza intends to break
down this tension inherent in the concept ofnorm even with regard to civillaws. The rational
man only knows the moment of internalization; the passionate individual only experiences
commandments and constraints. Perhaps what is needed for the existence of a norm is an
indissoluble passionate and rational individual- sufficiently rational in order to develop valid
conclusions concerning the means to his liberation; insufficiently master of hirnself in order
to perceive one of his rational conclusions as a duty. That is probably what the poet's words
video meliora proboque, deteriora sequor entail.
Spinoza's reduction ofthe normativity of laws and his intention to 'naturalize' the realm of
legal experience has a singular consonance with Saint Thomas Aquinas' theory of laws. We
know that this theory is structured around four key concepts: the etemal law; the natural law;
the natural right; the human law. We wish to examine, then, the similarities or dissimilarities
that this conceptual framework might have with Spinoza's theory of laws.
A. - EternaIIaws
The origin ofthe etemallaw is not drawn from God's power. Rather, God's powertransmits to
other beings, the finite similitudes of its infinite esse. It is the gift of existence in accordance
with the forms and the movements defined in divine reason. The fact that there is a world
emerges from the divine will and power; but the fact that the world is as it is emerges from
the divine intellect and ultimately from the nature ofthe infinite esse. 59 The etemallaw is the
work ofreason.
'Wherefore as the type ofthe divine wisdom, inasmuch as by it all things are created, has
the character of art, exemplar or Idea; so the type of divine wisdom, as moving all things to
their due end, bears the character of law. Accordingly the etemal law is nothing else than the
type of divine wisdom, as directing all actions and movements. '60
The existent being is defined by an Idea and a law. The Idea establishes the inclinatio ad esse
rei deriving from the matter and from the form. However, the inclinatio ad aliquid extrinsecum
that makes the thing act in view ofits good requires an additional divine intervention: that is
the role ofthe etemallaw. 61
This distinction between the essence of finite beings and their extrinsic end, between
their essence and their inclination, is categorically rejected by Spinoza. His metaphysics
clearly states that any being's actions are nothing but his essence's self-development or self-
reproduction: 'No one endeavours to preserve his being for the sake of anything else' .62 A
thing's conatus is always its essence. Nothing tends to something other than itself. To Saint
Thomas, only God enjoys this situation. 63 Notwithstanding, there seem to be three points of
convergence between Saint Thomas's etemallaws and Spinoza's laws ofnature.
I. In Saint Thomas, the etemallawistheprincipleofthedynamicsofbeing.Assuch.it
is a 'moral' law and a 'physical' law. In so far as it leads things towards their ends, it seems
like a morallaw; in so far as it concems the entire nature ofminerals in the celestial bodies, it
seems like a physicallaw. [t leads things towards their ends by means of a double inscription.
[n beings other than human, it imprints in them an intrinsic unconscious principle of motion.
[n human beings, this unconscious impression can be found in the inclinations; but the eternal
law offers them also a fragment ofitselfthat can be deciphered only in universal terms, that is,
a fragment allowing them to do consciously that which other beings are only capable of doing
unconsciously.64 The eternallaw's distinction between laws that are participated unconsciously
or consciously diminishes the gap between amoral commandment and physical 'necessity'.
There is only one divine Logos whose promulgation occurs in words or in writing. 65 For
all creatures, the divine plan is written; the human distinctiveness lies in the fact that the
silence ofthe written word is intensified by a dictating voice. Man has the privilege ofbeing
the creatura audiens 66 of a dictamen praticae rationis. 67 The difference between man and
nature, much like the difference between two expressions of the same order, participates in
the reduction ofthe normative character of eternallaws.
2. The interna I dynamic principle that God inscribes into each being is added to their nature.
However, it does not subjugate them. As the author ofthe eternallaw, God is connected by the
nature ofthe forms that he 'imagines' as demiurge. His kindness prevents hirn from imposing
upon individuals any accidental attributes that conflict with their essential attributes. 68
Certainly the convergence between essential and accidental attributes is susceptible of being
ordered in degrees: 'As regards the goodness of a thing which is of the essence of it - for
instance, to be rational pertains to the essence ofman - God cannot make a thing better than
it is itself' .69 However, this power is not absolute. God can grant further means to a thing in
order to increase its perfection, theoretically speaking. Due to his infinite nature, God can only
communicate with a multiplicity of things one at a time. Each thing refers back to another
thing in order to figure out that which has no figure, that is, how the infinite manifests itself in
the finite. Since no form can imitate God for the very reason that God is formless, no form can
trace the analogon ofits infinity without acknowledging its multiple imitations.
'He produced many and diverse creatures, that what was wanting to one in the representation
ofthe divine goodness might be supplied by another. For goodness, which in God is simple
and uniform, in creatures is manifold and divided and hence the whole universe together
participates the divine goodness more perfectly, and represents it better than any single
creature whatever.' 70
God is somehow constrained by his own nature to create an order. From that very fact, God
is connected by a certain 'compossibility', that is, by the nature of order in general.
'The universe, the present creation being supposed, cannot be better, on account ofthe most
beautiful order given to things by God, in which the good ofthe universe consists. For if any
Jbid. 91 a1 ad2.
65
66 Jbid.
67 Ibid. Conclusion.
6& 'One must admit that this order ofthings is restricted (iste cursus rerum sit determinatus) to what
now exists' (lbid. la, 25 a5 ad3).
69 Jbid. Ta, 25 a6.
70 Jbid. Ta, 47 al.
Spinoza and Law 159
one thing were bettered, the proportion of order would be destroyed; as if one string were
stretched more than it ought to be, the melody ofthe harp would be destroyed.'71
In other words, if God wanted to make a better world, he would have to change not only its
laws but also the very natures ruled by those laws. 72 With regard to natures, the eternal laws
do not appear as an extrinsic destiny; rather, eternal laws are rigorously appropriate to them,
required by them. We have already noticed that God's rule does not emanate from his power.
Furthermore, the contents of his plan respect the nature of those beings that fall under them.
The normativity ofthis plan's prescriptions diminishes in the face of a greater respect for the
nature ofthings.
3. A further characteristic approximates Saint Thomas's legal order to Spinoza's 'common-
order' laws: their absolute power. They both express a monism of order. 80th their legal orders
have no outside and they always remain rational. We already know that Spinoza's rational
order is all-inclusive; it only appears to be otherwise to those who fail to understand it. To
those who find existence unbearable, absurd, immoral, Spinoza replies that their standpoint
is defective and very narrow - excessively 'focused'. Only the misapprehension of effects
detached from their causes entails the opinion that the world is disordered.
'A man strong in character considers this most of all, that all things follow from the
necessity ofthe divine nature, and hence, that whatever he thinks is troublesome and evil, and
moreover, whatever seems immoral, dreadful, unjust, and dishonorable, arises from the fact
that he conceives the things themselves in a way which is disordered, mutilated, and confused.
For this reason, he arrives most of all to conceive things as they are in themselves. '73
Even the horrible is rational if regarded as the positive effect of a composition of forces
and conatus that overcome this or that individual's self-interest. There is a profusion of
laws and conatus in nature that stand against its infinity. Thenceforth appear overlaps and
encroachments that constitute as many types ofviolence towards each singular existence. Evil
is always the local effect of a positive infinity offorces. This is the way by which any singular
horror connected to the concrete whole that produces it ends up losing incoherence and taking
its right place in order.
Saint Thomas answers the question of whether all laws proceed from the eternal laws
by stating that they do, in so far as they participate in right reason. 74 It might seem that a
significant number of laws or beings escape the range ofthe ratio legis aeterna. For instance,
Saint Paul's law of concupiscence, unjust laws, and contingent natural realities. However, as
soon as Aquinas begins to examine these cases one by one, he shows that neither is able to
escape from the divine rule.
The 'degradation' of concupiscence expresses the laws' power since those who stray
from their path suffer for that very reason. 75 Similarly, unjust laws are aperversion of the
law. However, even if they do not prescribe a good simpliciter, they still prescribe a good
secundum quid. Tyrannical laws are not so corrupted to the point of failing to express any
kind of good; even if they are but means of accomplishing a prince's wishes, they still have
the general characteristics ofa law. 76 The distinction between truths simpliciter and secundum
quid is used by Saint Thomas in a very general way; it mirrors the distinction between the
universal and the particular that provide hirn with one way of showing that evil does not
contradict the uniqueness ofthe creation ofthe world. 77 Thus all the apparent deflections from
the recta ratio aeterna are resolved:
'Although the defects which occur in natural things are outside the order of particular
causes, they are not outside the order ofuniversal causes, especially ofthe first cause, i.e. God,
from whose providence nothing can escape. And since the eternal law is the type of divine
providence, hence the defects of natural things are subject to the eternal law. '78
In order to grasp the power of the eternal laws, the adoption of the standpoint of the
provisor particularis is insufficient. The reason is that such astandpoint tends to prevent all
defects, within the limits of the specific object in question. However, the best perspective is
that ofthe whole, as in Spinoza. We thus realize that the provisor universalis allows defects
even within his general plan. A specific number of local defects is deemed necessary for the
whole's greater good. The whole's internallogic leads God to make the good 'even with some
evil'. How could a lion live without the death of several animals? How could the patience
of martyrs be tested without the oppression of tyrants?79 Without the existence of beings
subject to generation and corruption, the physical world would lack several degrees of divine
participation; also, it is necessary that just men are exposed to injustice, which manifests the
most extreme form of divine government in the ethical realm. 80
80th Saint Thomas and Spinoza are concerned with a perfect inclusion ofthe world in the
legal order. Despite their differences, their texts show a common intention: that of conceiving
of laws as works of reason rather than will; that of diminishing the opposition between law
and nature; that of avoiding the c1ear-cut dualism between man and nature. This last point is
very c1ear in their theories ofnaturallaws.
B. - Natural la ws
All beings share apart ofthe divine plan that rules their inclinations in accordance with their
nature. As a rational animal, man's participation is twofold: he contains the eternal laws in
hirnself (in his inclinations) and for hirnself (in his reason). The laHer are the naturallaws,
which are part ofthe eternal laws in a second sense. Man is instructed in the right precepts of
his nature only universally. He is unaware ofthe singular directives that lead to the application
ofthe general principles in the world of contingencies. 81
In so far as they intensify inclinations, the precepts of the law represent the actual ethical
contents and their order is the same as the order of man's natural inclinations. Since the
rational animal has three main inclinations in so far as he is substance, animal substance, and
rational animal substance, he knows three series of precepts that rule over (respectively) the
need to preserve and defend himself, the need to leave descendants and to afford them the best
possible education in marriage, and the need to perfeet his rationallife by living in society and
by cultivating knowledge. 82 The normative reach ofthese precepts is limited by the fact that
they have the same relation to the natural inclinations, whatever their contents may be. Thus,
the duty to defend oneself (even if by killing someone) is placed at the same level as the duty
to practice justice or to pursue truth. Naturallaws are the linguistic formulations ofthe natural
conveniences inscribed in the human appetites.
In Spinoza, the expression 'naturallaws' seldom appears. The Ethics and the Political
Treatise ignore them completely. Only the Theological-Political Treatise speaks of 'divine
naturallaws' .83 However, we should keep in mind that this work has a theoretical intention
and an immediate practical intention: that ofparticipating in the political and religious debates
opposing the republican party to the Calvinist party. That is why it has an ad hominem kind of
language, accessible to the majority ofpeople. Still, the contents of Aquinas's naturallaws are
very similar to Spinoza's dictamina rationis presented in part IV ofthe Ethics and mentioned
briefly in the Political Treatise.
There are two major precepts of reason, of which the second is merely an extension the
first. Reason requires that each 'endeavours to persevere in its being'. All the attachments to
persons and things that hinder such an endeavour are alienations. Virtue consists thus in the
cultivation of one's own desire. 'Reason demands nothing contrary to nature, it demands that
everyone love himself, seek his own advantage, what is really useful to him'.84 The virtuous
man is one who perseveres in his true being; one whose effort is not perverted by the world. To
be oneself always in the most profound way - such is the content ofthe guidelines ofreason.
However, to be oneself implies the development of one's understanding, for only c1ear ideas
and that which can be deduced from them allow us to place our being in the world and separate
us from the confusion ofignorance. 'In so far as a man is determined to act from the fact that
he has inadequate ideas, he is acted on, that is, he does something which cannot be perceived
through his essence alone.'85 The endeavour to become oneself is connected to adequate and
true knowledge; ultimately, also to the knowledge ofGod. This knowledge alone, from which
nature's entire course can be deduced, permits us to know what an authentie individuality iS. 86
Moreover, if 'the search for one's own advantage constitutes the groundwork ofmorality',
that which reinforces such a quest can be called good and that which hinders it can be called
bad. Since nothing is more helpful to this effort than a being engaged in the same search,
the second part ofthe dictamina rationis requires that we unite with other individuals whose
nature is in accordance with ours. 'If two individuals of entirely the same nature are joined to
one another, they compose an individual twice as powerful as each one. To man, then, there
82 1bid. 94 a2.
83 Theological-Political Treatise, chapter 4.
84 EIVPI8Sch. For further developments more geometrico, see ElVPI9-25.
85 EIVP23Dem.
86 EIVP28.
162 Spinoza and Law
is nothing more useful than man.'87 The dictamen rationis has thus a double requirement: to
be and to unite with others.
We can compare these precepts with Saint Thomas's from three different viewpoints.
- Spinoza's dictamina rationis have the same contents as Saint Thomas's naturallaws.
Spinoza's first dictamen rationis generalizes the contents of the first part of Saint Thomas's
naturallaws. For instance, with regard to children, it requires adesire to be and adesire to
unite with others.
'As for marriage, it certainly agrees with reason, if the desire for physical union is not
generated only by external appearance but also by a love ofbegetting children and educating
them wisely.'88
Spinoza's second dictamen rationis includes the same 'requirements' included in the third
part ofSaint Thomas's naturallaws: the search for truth and the union with others. 89
By means of different demonstrative schemes, we find similar themes. [n Saint Thomas,
virtue arrives when an individual opens himself to an exterior good always closer to the
universal; in Spinoza, virtue is acquired by means of an interiorization of the infinite idea
in uso Saint Thomas finds the supreme good in an outside end that overcomes all singular
individuals. 90 Spinoza reaches the supreme good through an interior rise to the infinite
principle that is immanent to the individual. 91 Such an interiorization acts as a discrimination
of the alienated individuality - with regard to several habits 'which cannot be understood
from our nature alone' and to the 'actualization' of our true self.
- [n both authors, the dictamina rationis 92 are also ethical propositions rather than strictly
legal propositions. [n Spinoza, the first part of the dictamina rationis c1early has an ethical
sense; with regard to the second part, it states (among other things) the need to unite human
forces in order 'that the minds and bodies of all compose, as it were, one mind and one
body' .93 Thus, it grounds the moral need of politics. [n addition, it designs the most abstract
architecture of politics. However, these propositions are intended primarily to define the
general conditions for the liberation ofmen ratherthan to establish a theory ofpolitical society.
[n Saint Thomas, natural laws are morailaws, not juridical laws. 94 Their range extends
far beyond the realm of law. They include precepts that do not involve relations ad alterum.
Natural laws rule primarily over the passions of irascible and debauch men; this has nothing
to do with law. On the other hand, they dictate to man that which is convenient to hirn with
the purpose of activating his faculty ofknowing the truth; and this has nothing to do with law.
Even when they have something to do with law, naturallaws are not concemed with the nature
of law except in so far as it constitutes one of the elements by which man tends to his end.
Hence, the duties established by the naturallaws always aim at individual improvement, at the
conditions of 'friendship between man and God', rather than at the conditions of 'friendship
between men', which the law is aimed at. 95 Thus, natural right may have the same object as
certain parts ofthe naturallaws, albeit they are not exactly the same.
Can these similarities of content have an effect upon the 'normative' status ofthe dictamina
rationis?
- For Spinoza, the dictamina rationis are not more normative than the other laws ofnature.
Spinoza says often that reason demands nothing contrary to nature. The path opened to us by
reason is deduced from our appetite's true nature. Reason does not establish oughts; it brings
to knowledge our being's movement out of alienation. It is not a question of directing our
des ire towards something, but rather of retrieving it. We face here the same problems that
we faced with regard to juridical laws: the dictamina rationis cannot be normative except for
the ignorant man who is destitute ofreason. For the ignorant man, the requirements ofreason
seem strange to his own individuality; they seem to impose themselves upon hirn as if they
were transcendent norms.
Saint Thomas insists strongly that natural laws are grounded in human reason and that
reason is grounded in human nature. In addition, he distinguishes between those precepts that
are issued ex ipso dictamine rationis and those that have avis obligandi ex institutione. 96 The
former are precepts ofthe naturallaws; the latter are specific determinations ofthe former. This
opposition between reason and institution (which somehow mirrors the distinction between
necessity and contingency) shows that Saint Thomas tends to reduce the normative character
ofnaturallaws. Naturallaws establish what agrees absolutely with the nature ofhuman things;
contrarily, prescriptions ex institutione prevent possible deviations and overcome the natural
laws' indeterminacy.
c. - Natural right
In both authors we find an intention to think ofthe law as arealm determined in view ofthe
nature ofthings. 97 However, the differences between them are astounding. In Saint Thomas,
natural right is conceived of as the logic of a relation. Right is that which is objectively
construedjus sivejustum, est aliquod opus adaequatum alter i secundum aliquem aequalitatis
95 Saint Thomas, Summa Theologiae Ia IIae, 99, a2. In fact, Saint Thomas refers to the set of
precepts established in the naturallaws as praecepta moralia, which he distinguishes from the praecepta
judicialia: see ibid. 99 a3 and 4.
96 1bid. 104 to 1.
97 1bid. Ha Hae, 57 a2: Dupliciter ... potest alicui homini aliquid esse adaequatum. Uno quidem
modo, ex ipsa nature rei ... Spinoza, Political Treatise I, § 4, intends to conceive ofpoliticallaw ex ipsa
humanae nah/rae conditione. Jbid. § 7.
164 Spinoza and Law
modum. 98 In Spinoza, natural right refers both to a disordered subjective power and to an
ordered power. We should keep in mind mostly (albeit not exclusively) the first aspect, since
it contradicts the entire metaphysical tradition until Hobbes.
'Since every man has right to the extent that he has power, whether he be wise or ignorant,
whatever he endeavours and does, he endeavours and does by the sovereign right of nature.
From this it follows that nature ... forbids only those things that no one desires and no one
can do; it does not frown on strife, or hatred, or anger, or deceit, or on anything at all urged
by appetite. '99
It might seem that we are faced here with the justification of an unbridled subjectivism that
is the exact opposite of what Saint Thomas claimed. However, it should be noted that even
though natural right does not forbid the worse, it does not prescribe it either. The desire to
agree with another, the des ire to cease war, whether it emerges from fear alone or from reason,
is grounded in the exact same natural right. 100 Men discover that an organized society is in
accordance with their desire by following the tendency oftheir conatus. In the state ofnature,
natural right is vain because men's powers are extremely limited. Thus, the desire to overcome
such astate is more powerful than the desire to preserve it. The natural laws of the passions
determine a mixture ofunsocial sociability, in which the second term is more powerful than the
first. Hence, the legal rules that set men in accordance with one another do not diminish natural
right; rather, they strengthen it.
'The natural right specific to human beings can scarcely be conceived except where men
have their rights in common (ubi hominesjura habent communia) and can together successfully
defend the territories which they can inhabit and cultivate, protect themselves, repel all force,
and live in accordance with the judgment ofthe entire community. For the greater the number
ofmen who thus unite in one body, the more right they will all collectively possess.'101
Society is thus the successful realization and the privileged locus of natural right. Spinoza
says that, in this sense, he agrees with 'the Schoolmen' when they claim that man is a social
animal. 102 Natural right is the justification and the opposite of asocial determinisms in the
same sense that it is the justification and the opposite of social determinisms.
But where can we see that Spinoza and Saint Thomas examine in the nature ofthings, of
coherences, of proportions, that which a lawyer may find useful in his dealings with social
institutions? The answer is in plain sight, even ifit involves some sort ofpositivism which we
are always faced with.
D. - Human laws
Natural right may structure all legal institutions. With regard to the determination of the
competences of sovereignty, Spinoza grounds the distribution of power between the individual
and the sovereign in the nature ofthings.
another and set up some kind of civil order ... ' (lbid. 1, § 7).
101 Jbid. TI, § 15.
lO2 Jbid.
Spinoza and Law 165
The right to decide which behaviours are to be favoured or hindered in the social body
(that is, the detennination ofthe just and the unjust) must be monopolized by the sovereign
organ. 103 Otherwise, political society will break into as many pieces as there are individuals
endowed with such a right; if all individuals were endowed with such a right, society would
self-destroy.104 This is a law ofnature for the State - it cannot be 'conceived' in any other way.
Positivism is thus grounded in the nature ofthings. Positive laws borrow their force from laws
of essences, from the expressions sine quae non of the nature of political things. The right
to interpret laws must be taken away from common citizens for the exact same reason. By
means ofinterpretation, each would be able to fonn autonomous islets resembling discordant
fortresses that would make society fall back into the state of nature. lOS
Are there limits to such a right? Certainly so; and they are chiefly natural limits. Some
things are outside the reach ofthe State's power in view oftheir very nature. [n the language
ofthe Theological-Political Treatise, Spinoza calls them inalienable rights.
'No one is able to transfer to another his natural right or faculty to reason freely and to fonn
his own judgment on any matters whatsoever ... Everyone is by absolute natural right the
master ofhis own thoughts.' 106
Within the subject matters of the Political Treatise, he writes that all those actions that
no one can be induced to perfonn by rewards or threats 'do not fall within the rights ofthe
commonwealth. For example, no one can surrender his faculty of judgement ... And in this
category must also be included those things so abhorrent to human nature that it regards
them as the worst of all evils, such as that a man should bear witness against himself, should
torture himself, should kill his own parents, should not endeavour to avoid death, and the
like.' 107 There are limits to the State's natural right because there are connections between
ideas, judgements, certain movements ofthe body and certain ideas that cannot be broken or
annulled by a political force. Such natural relations should function as guidelines to the well-
advised legislator. That is why Spinoza defines, with regard to liberty of thought, a common
way that takes into account the State's cohesion (assessed by a rational analysis), the force of
laws on opinion (inferred from empirical examples) and the State's purpose (deduced from
its origin). We are faced with a specific reasoning (within natural right) that aims at creating
the conditions for action in accordance with an objective rapport rather than at affirming
subjective rights. lOS
[t is interesting to note that Saint Thomas, when approaching the same problem ofthe limits
of obedience, uses similar arguments in order to arrive at identical conclusions. He begins by
'naturalizing' the facts ofthe problem. A relation of authority is similar to a relation between
natural things. The necessitas justitiae is similar to the necessitas naturae. 109 [n the latter, the
relations between things are established in view oftheir power (virtu). The most powerful is a
prime mover to the least powerful. This relation must also exist in human affairs. 110 Moreover,
there are prime movers and powers in the realm of natural things that become inefficacious
due to the power of a contrary third element (for instance, humidity) that prevents them (for
instance, fire) from exercising their effects (for instance, to burn the woods); or also due to the
fact that sometimes the moving impulse is only partially in the mover's power (for instance,
certain liquids can be heated by fire even though they do not evaporate completely).lll In the
light ofthis, Saint Thomas concludes: the same thing happens with regard to human affairs,
that is, the authority of a superior ceases when faced with things that are outside its power.
For instance, with regard to the determination ofthe will's internal movements, men are not
bound to obey other men. ll2 By appealing to the nature ofthings, Saint Thomas grounds man's
natural right on the autonomy of the subject rather than on the State. This idea according to
which there is a naturallogic in the legal logic seems to us shared by both philosophers.
Another similarity between their theories can be found in the relation between natural right
and positive laws. In Saint Thomas, this relation is very clear. Naturallaws determine a set of
universally valid institutions; however, this universality is always too abstract; human laws
furnish the contingent and the necessary to a 'determination' that is authorized by natural
laws, albeit not prescribed directly by them. 1l3 Legislative prudence must emerge from the
framework provided by naturallaws, in view of the existing tim es, customs, social and
economic institutions. 114 Human laws draw their authority from the observance ofthe general
principles ofnaturallaw.
Spinoza's arguments agree with such a theory. Faced with the question ofwhether sovereign
power is bound by laws, he answers affirmatively. The State is bound by the laws of its
own nature, 'for if a commonwealth were not bound by the laws or rules without which the
commonwealth would not be a commonwealth, then it would have to be regarded not as a
natural thing but as a chimera'.115 The making of civil laws belongs to the nature of aState;
but no State is bound by laws of its own making. 116 Rather, States are bound by natural law
to preserve the means ofunifying the population and of ensuring individual security through
the system of civil laws, whatever they may be; failure to do so entails the loss of authority.
Spinoza admits that the sovereign is free to change the laws, but only in the sense that we can
say that someone is free to harm hirnself, to intoxicate hirnself, to do what is not advantageous,
to diminish his power and to ruin his health. The reason is that aState is similar to an individual.
In so far as it acts in accordance with the laws of its own nature, it prospers. From the moment
that it engages in acts contrary to its own nature, it loses its power and its natural right. The
sovereign's legislative power is dependent upon the consistencies prescribed by the natural
laws. It faces no institutional counter-power whatsoever, but it is subject to the necessity
inherent in its own nature. ll7 We can thus say that both in Spinoza and in Saint Thomas, the
legislator is bound to observe the positive prescriptions ofthe naturallaws.
CONCLUSION
This updated list of convergences between Saint Thomas and Spinoza legitimizes a distinction
between, say, the scheme and the theme. Each thinker establishes true propositions or themes
by means of rational procedures or schemes. We have neither overvalued the theme nor
undervalued the schemes. We have tried to compare the schemes in both theories. Nevertheless,
the consideration of theoretical fragments tends to privilege themes over schemes. Such a
study is contrary to the idea ofthe constitution oftruth more geometrico, to the interpretative
guidelines proposed by Martial Gueroult, and to any attempts to examine the dialectics
between form and content. It also risks comparing the incomparable and underestimating
the systematic connections of each theory. However, it remains one of the ways by which to
locate the theoretical permanencies in the history of philosophy. It is thus contrary to a linear
approach to historical evolutions, as weil as to a structural approach to enclosed systems. In
addition, it searches for limited coherences by which it is able to locate repetition in two great
(apparently incomparable) corpora. The issue oflaws seems to reveal some unattended points
of convergence between them concerning the theme of normativity. Between Spinoza's anti-
normative system and Saint Thomas's anti-normative tendency, there are common points of
reference. We can only hope that such an updated list may enlighten a general theory of laws
in which it is possible to identify what is truly at stake.
ll8 Saint Thomas, Summa Theologiae Ia TTae, 93 a6; 91 a6; Summa contra gentiles TTT, chapter 140.
119 Spinoza, Political Treatise IV, § 4.
[10]
LAW'S NORMATIVITY IN SPINOZA'S
NATURALISM
Olto Pfersmann
1. STRICT REnUCTIONISM
J Ethica I, P. 16 and Cor. I. The argument developed in the first part ofthe Ethics aims at
showing thai the Substance is the efficient cause of anything that is conceivable and that nothing
else could come into being. Spinoza's writings are quoted in the edition of Carl Gebhardt.
SPINOZA OPERA, im Auftrag der Heidelberger Akademie der Wissenschaften herausgegeben,
Carl Winters Heidelberg 1925 (reprint 1972). "E" stands for Elhica (Opera, vol. 2), "TTP" for
Traeatatus theologieo-politicus, "TP" for "Traetatus politicus" (both Opera, vol. 3).
2 E I, appendix.
3 E I ,prop. 33 and schol. "At res nulla alia de causa contingens dicitur, nisi respectu
defcctus nU,lrae cognitionis." Tbe ontologieal restrietion to strict necessity yields the nature of
possibility as a mere-deficient-mode ofthought.
4 Tbis clearly appears in Spinoza's definition ofNatural Law in TTP, eh. 16, p. 190: "Jus
itaque naturale uniuscujusque hominis non sana ratione, sed cupiditate et potentia
determinatur. . .. Ex quibus sequitur Jus et Instituturn naturre, sub quo omnes nascuntur, et
manxima ex parte vivunt. nihil nisi quod nemo cupit, et quod nemo potest, prohibere.. .. " What
can be termed "natural law" in spinozistic terms is nothing else but the laws of nature, not any
normativity inherent in reason.
Spinoza and Law 171
5 E III, prop. 18, schol. 1 & 2. See the outstanding analysis ofthis process in ALEXANDRE
MATHERON, INDIVIDU ET COMMUNAUTt CHEZ SPINOZA, Paris Editions de Minuit (2d ed. 1988),
p. 132 ss.
6 Spinoza's conception of utility is derived from the basic definition of the conatus in E IlI,
7. Tbe individual necessarily slrives 10 mainlain himself in bis own being. Whal he is set to
doing in that perspective is his potentia or virtus (E IV, def. 8). When what he does really boosts
his preservation, or is "convenient 10 his nature", detennines utility, and his doing so of neee5sity
meets the utility ofindividuals with similar nature CE IV, prop. 18, schol.).
172 Spinoza and Law
9 HOBBES, LEVIATHAN, ch. XVII, § I. The exacl place of natural law is of course a very
controvcrsial matter in Hobbes-scholarship, but it is not exactly Dur concern here. It is at least
plausible that one can understand the argument as urging the sealing of the covenant as a
command of the law of nature, even though Hobbes may on eloser scrutiny construct this law of
nature as a strictly causal result of what happens in the state uf nature.
10 ld., eh. XXI. "The obligation of Subjects 10 the Sovereign, is understood to last as long,
and no longer, that the power lasteth, by which he is able to protect them." See also eh. 29.
174 Spinoza and Law
11 This is the claim raised by Manfred Walther in Spinoza und der Rechtspositivismus, in
ARCHIV FÜR RECHTS-UND SOZIALPHILOSOPHIE 68 (1982), p. 407-19, published again in EMILIA
GIANCOITI, SPlNOZA NEL 350 ANNIVERSARIO DELLA NASCITA, Naples BibliopoJis 1985, p. 401-
18. He argues that Spinoza's defmcs "lex" (in TTP, eh. 4) as a normative, eoereive and effeetive
order.
Spinoza and Law 175
12 This is the well known basis for the liberties, especially the liberty of thought, in the
Spinozistic Republic (';Ostenditut neminem omnia in summan Potstatem trans feITe posse, nec
esse necesse" TPP, cap. xvii, tit.).
I3 E IV, prop. 37, schol. 2: "At quidem in statu Civili, ubi et eommuni consensu decernitur,
quid bonum, quidve malU/1 sit, et uniusquisque Civitati obtemperare tenetur."
14 TTP, eh. XVII.
176 Spinoza and Law
22 I use quotation marks, as the conception called "legal realism" in Legal Theory is not a
realism in the philosophical sense, but on the contrary, the thesis that law has no reality
whatsoever, except perhaps as a variety of ideology, and reducible to the facts of particular
decisions.
23 See Ono Pfersmann, Pour une typologie modale de cJasses de validite normative, in LA
QUERELLE DES NORMES-HOMMAGE AGEORG HENRIK VON WRlGHT (Jean-Luc Petit ed. 1995),
Cahiers de philosophie politique et juridique de I, Universite de Caen, 27, pp. 69-113.
[11]
Spinoza S conception oflaw: metaphysics and ethics
Donald Rutherford
The God of the Hebrew Bible is a sovereign lawgiver to the Jewish people.
God commands his people to act, or not to act, in certain ways and holds
them responsible for their actions, punishing disobedience and rewarding
obedience. Within the religious traditions that descend from Judaism,
divine law is conceived of as a set of dictates or commands that God issues
to all human beings - commands that establish inescapable obligations, on
the basis of which humans are held accountable for their actions. One of
Spinoza's primary goals in the TTP is to offer areinterpretation of the idea of
divine law, according to which it is understood not as the literal command
of a sovereign being, but as a law taught by the "natural light of reason"1
and "inferred from the consideration of human nature alone."2 In the
TTP, this interpretation is developed against the background of a general
analysis of the concept of law that has wide-ranging consequences for
Spinoza's philosophy. In what follows I foeus on two of these consequences:
Spinoza's endeavor to use the notion oflaw (including divine law) to bridge
the divide between the natural and the normative, and the role he assigns
to the concept of law in underwriting the systematic unity of his ethical
theory.
I am grateful to Yitzhak Melamed and Michael Rosenthal for their helpful comments on an earlier
draft of this chapter.
I G III ro/7. Unless otherwise specified, quotatiollS from the TTP are drawn from Jonathan Israel's
edition. Quotations ftom the Ethics are drawn ftom Edwin Curley's edition.
2 G III 61124-2 5.
184 Spinoza and Law
things of the same kind, act in one and the same fixed and determinate way
[certa ac determinate ratio ne agunt] ."3 The general account highlights the
determinacyand regularity oflaw-governed action, but does not explicitly
invoke the notion of necessity, or distinguish between descriptive and pre-
scriptive conceptions of law. These ideas come to the fore when Spinoza
goes on to distinguish two bases for law: a law may depend either on
natural necessity or on "human decision." Let us call these, respectively,
type-I laws and type-lI laws. A type-I law is a law that expresses a natural
necessity, or which "necessarily follows from the very nature or definition
of a thing." A type-lI law, by contrast, is one that "depends upon human
decision [ab hominum placito]," and which "men prescribe to themselves
and others in order to live more safely and more comfortably, or for other
reasons lad tutius, er
commodius vivendum, vel ob alias causas]."4
Spinoza's general account encompasses two very different notions oflaw.
Type-I laws have no normative content: they are descriptive propositions
that state how things necessarily act, and that follow necessarily from the
nature of a thing. Spinoza gives two examples of laws of this sort. It is a
universallaw of body that "when one body strikes a smaller body, it only
loses as much of its own motion as it communicates to the other." And
it is a universal law of human nature that "when a man recalls one thing
he immediately remembers another which is similar or which he had seen
along with the first thing."5 Type-lI laws are distinguished from these laws,
in part, by the fact that they do not follow necessarily from the nature
of a thing. If it is a law "that men give up their right which they receive
from nature ... and commit themselves to a particular rule of life,"6 this
law does not follow from human nature alone. By virtue ofbeing human,
an individual does not necessarily act in a cooperative manner, though he
may prescribe to hirnself and others that they should act in this way. Such
7 G III 57129. One might quibble with this rendering ofjus, which Spinoza (like his predecessors) uses
very broadly. As I discuss in the next seetion, his analysis of natural right (jus naturale) in Chapter
16 grounds this right in a natnralnecessity.
8 G III 58128-33.
9 Spinoza may believe that, etymologically, the word "law" is applied metaphorically to natural things,
or to "the order of nature itself' (Gm 162/22). This, however, is consistentwith the claim that type-I
laws are metaphysically basic, in the sense that the operation of type-II laws is explained in terms of
them. Cnrley ("The State ofNature ,md Its Law," pp. 108-109) reaches a different conclusion. He
argues that what I have called Spinoza's general account is only a "provisional" definition; that the
word "law" is used only metaphoricallywhen applied to natural things; and that Spinoza's preferred
definition is the one that I have identified with type-lI laws: "a rule for living which a man prescribes
to himse1f or others for so me pnrpose" (G III 58/33-35). Miller ("Spinoza and the Concept of a Law
of Natnre") dissents from Curley's view but does not develop the distinction between type-I and
type-II laws.
IO G III 58-59.
186 Spinoza and Law
DONALD RUTHERFORD
II G III 59/8- II .
12 G III 591r4-16. Spinoza offers two distinct accounts of the "just." Philosophically, it is (as presented
here) a quality of character exemplary of virtue. This is the notion described in E4p18s: "men
who are governed by reason - that is, men who, from the guidance of reason, seek their own
advantage - want nothing for themselves which they do not desire for other men. Hence theyare
just, honest, and honorable [justos, fidos, atque honestosl" (G II 223/17-18). In other contexts, he
restriets the notions of just and unjust to astate governed by civillaws, denying that there can be
any wrongdoing in the state of nature. See TTP eh. 16; G III 196 and E4P37S2: "in the state of
nature nothing is done which can be called just or unjust [justum, aut injustuml. Bur in the civil
state, of course, where it is decided by common consent what belongs to this man, and what to that
[, things are done which can be called just and unjustl" (G II 238-239).
Spinoza and Law 187
1J G III 58/7-8.
'4 G III 581r6-17. On the rationale for translating Spinoza's sanctionem istarum legum as "the binding
force of those laws," see Bentham, Introduction to the Prim'iples ofMorals and Legislation, 3, sec. 2.
'5 G III 58123-24. 16 G III 58124-25. '7 G III 58125-26.
188 Spinoza and Law
DONALD RUTHERFORD
(ourselves induded) are determined by type-I laws "to exist and act in a
fixed and determined manner."'8
This gives us further insight into Spinoza's position. Type-I laws are
metaphysically basic, yet type-lI laws are crucial to human agency. They
guide us in acting in the world, even though they incorporate what is in
effect a fiction about our powers: that, independently of how things are
"really ordered and connected," we are capable of effecting the necessary
means to desired ends. Spinoza's general account, articulated in the opening
pages of Chapter 4, takes us this far. To go beyond this, we must consider
in greater detail some of the specific laws to which he appeals.
Spinoza's general account allows for a wide range oflaws of varying scope.
These indude type-I laws that express the determinate mode of acting
of all individuals, or of all or some individuals of a certain kind. A dear
example of the first sort of law is what Spinoza calls in Chapter 16, the
"supreme law of nature": "it is the supreme law of nature that each thing
strives to persist in its own state so far as it can [unaquaeque res in suo
statu, quantum in se est, conetur perseverare], taking no account of another's
circumstance but only of its own. "19 The TTP's "supreme law of nature"
anticipates a key proposition of the Ethics (E3P6): "Each thing, so far as
it can, strives to persevere in its being" [Unaquaeque res, quantum in se
est, in suo esse perseverare conatur].20 The proposition that follows, E3P7,
identifies this striving with the "actual essence" of a thing, which implies
that it depends upon a power proper to that thing (and not apower
belonging to something else). Given this, the import of E3P6 and of the
TTP's supreme law of nature is that, in so far as any thing is determined to
act by its own power, it necessarily acts in ways that preserve its existence.
This is a paradigm case of a type-I law for Spinoza: a law that "necessarily
follows from the very nature or definition of a thing."
r8 Compare E4d4: "I call ... singular things possible, insofar as, while we attend to the causes from
which they must be produced, we do not know whether those causes are determined to produce
them." In the present case, the relevant causes are desires to produce effects that may or may not
follow from them. Of course, 5pinoza also holds that there is nothing tmly contingent in nature
(E1pZ9). A thing is calted contingent only because of "a defect in our knowledge." "[B]ecause the
order of causes is hidden from us, it can never seem to us either necessary or impossible. So we call
it contingent or possible" (E1p33s1).
'9 G III 18 9.
20 For consistency's sake, I have altered Curley's rendering of quantum in se est Cas far as it can by its
own power"). The proper translation of this phrase is controversial, and I see litde to recommend
the interpolation of the word "power" in it.
Spinoza and Law 189
so marks the limits of its natural right. What is easily missed in Spinoza's
argument, however, is the implicit recognition of another dass of prima
focie normative laws. These are the "laws of reason" by which same, but
not all , human beings direct their lives. Spinoza is dear that these laws
are set against the universa1laws of nature, and that they are concerned
specifically with the "true interest" ofhuman beings:
[NJature is not bound by the laws of human reason which aim only at the true
interest and conservation of humans [non nisi hominum verum utile, & conserva-
tionem intenduntJ ... When therefore we fee! that anything in nature is ridiculous,
absurd or bad, it is because we know things only in part. We wish everything to
be directed in ways familiar to our reason, even though what reason declares to
be bad, is not bad with respect to the order and laws of universal nature but only
with respect to the laws of our own nature. 24
In interpreting this passage, we must be alert to a systematic ambiguity
that infects Spinoza's use of the phrase "law of human nature." In same
cases he uses the phrase to designate laws that hold of any human being (ar
any human mind). In others, he uses it to refer to laws that da not satisty
this condition, but rather hold of only same human beings. 25 The "laws
of human reason" are examples of the latter sort of law. Although they are
described as "laws of our own nature," they da not follow necessarily from
the nature of a human being, for Spinoza acknowledges that many human
beings are not governed by them; they live by the laws of appetite alone.
Given this, the laws ofhuman reason arguably should be dassified as type-
n laws: rules ofliving that "men prescribe to themselves and others in order
to live more safely and more comfortably." Supporting this identification is
Spinoza's explicit use of normative language in describing the significance
of these laws: "no one can doubt how much more beneficial it is for men to
live according to the laws and certain dictates of our reason [leges, certa er
nostrae rationis dictaminaJ, which as I have said aim at nothing but men's
true interests [verum hominum utileJ."26
The laws of reason mark the point at which nations of normativity find
entry into Spinoza's ethics. How to understand the force and authority
of this normativity remains a problem, to whose solution we find at least
24 G III 190-19I.
25 For the first usage, see TTP Ch. 4: G III 58/3-4 and TTP Ch. 16: "it is a universallaw of human
nature that no one neglects anything that they deern good unless they hope for a greater good or
fear a greater loss ... " (G III 191-192). For the second usage. see TP Ch. 2 art. 7: G III 279/5-6.
26 G III 191/n-13, trans. modified. Strictly speaking, the laws of reason include what Spinoza distin-
guishes in Chapter 4 as "human law" and "divine law." Here I am concerned onlywith the former:
rules of living "whose only purpose is to protect life and preserve the state lad tutandam 1!itarn, &
rernpublicarnl" (G III 59124-25). I discuss the import of divine law in seetion 3.
Spinoza and Law 191
DONALD RUTHERFORD
32 See E3P2S: "experience itse1f, no less c1early than reason, teaches that men be1ieve themse1ves
free because they are conscious of their own actions, and ignorant of the causes by which they are
determined, that the decisions of the Mind [Mentis decretal are nothing but the appetites themselves,
which therefore vary as the disposition of the Body varies. For each one governs everything from
his affect; those who are torn by contrary affects do not know what they want, and those who are
not moved by any affect are very easily driven here and there" (G II 143-144).
33 E.g., TP eh. I arts. 5-7; E5P41S.
194 Spinoza and Law
and understands their necessity, acts steadfastly and at his own and not
another's command."34
To say just this, however, is to leave unclear still the precise sense in
which the just (or, more generaHy, lawful) person prescribes law to himself-
a law that he subsequently takes to command his actions. Does Spinoza
envision a situation in which the lawful person understands the relation
between end and means, and then forms adesire for the means because
he knows it to be necessary for the end he al ready desires? This would be
a common way of explaining the binding force of self-prescribed "rules of
living": I des ire a safer and more comfortable life, a life of pleasure, without
fear of inordinate pain and premature death; I know that certain ways of
acting are conducive to achieving this end; therefore, I know that I should
act in those ways, and I am motivated to do so, so that I may attain the life
I desire.
Spinoza recognizes that many human beings are bound by the laws of
reason in only this sense. They know that by observing apt rules for living
they can pursue their own true in te rest, and because of this they (more or
less consistently) desire to act in accord with such rules, as a means to that
end. Yet this is not Spinoza's deepest account of the binding force of the
laws of reason, or of the lawful person's motivation to act in accord with
such laws. That Spinoza does not have this picture in mind is confirmed
by his frequent use of the phrase "dictates of reason" as a substitute for
"laws of reason."35 His references to the virtuous person acting from the
"dictate" or "guidance" of reason (ex dictamine rationis, ex ductu rationis)
indicate that reason itself has practical force for him. Reason is linked to
motivation in such a way that a rational agent is directly bound by the
laws of reason. In so far as human beings act from reason, they desire
to act in the ways specified by the laws of reason, independently of any
consideration of the utility of such laws in relation to the end of a safer
and more comfortable life. When we act from reason, Spinoza argues, we
necessarily do those things that are most useful to us, as weH as those things
that are good for human nature, and hence, for each human being. 36 Thus,
we consistently act in ways that advance our "true interest," without doing
so because they have that consequence. The rational person, in so far as
determined to act from the dictates of reason. Yet even when they are not
determined in this way, they feel the puH of reason in them: they desire
to act as reason would determine them to act, even if they da not ulti-
mately foHow through on those actions. Furtherrnare, in so far as they
are rational, they are able to understand reflectively how the actions deter-
mined by reason contribute to the end of a safer and more comfortable life.
Consequently, however they end up acting, rational agents understand the
benefits of acting according to the laws of reason and they feel the force of
reason within themselves. Hence, they consistently desire, or prescribe to
themselves, patterns of action that they anticipate will lead to their desired
ends. Desiring the things that reason determines them to want, they take
those ways of acting as a "law" that commands their action. Ta the extent
that they "obey" this law, they da nothing but act in that way in which
reason determines them to act.
Of course, not all human beings are moved by reason even to this extent.
In the case of individuals who are led by the laws of appetite alone, another
account is needed, one which emphasizes the role of law as a command
issued by a superior, who is capable of enforcing the command through
the threat of punishment. Spinoza observes that in politics and religion
this is often the only conception oflaw that matters. Nevertheless, he does
not believe that it is the conception by which we can best understand the
function of law within the life of a reflective rational agent.
3 DIVINE LAW
strives from
Spinoza and Law 197
highly efficacious, but this has come at the cost ofintellectual error. Biblical
law conveys no distinct understanding of God's nature, and it supports no
claim for the unique status of the Jews as the recipients of divine law.
In the TTP, Spinoza aims to replace the confused and patently anthropo-
morphic conception of divine law that the Bible presents with a rigorously
defined philosophical conception. In fact, he ends up defending two dis-
tinct accounts of what can reasonably be meant by the expression "divine
law." One account, featured in Chapter 4, construes divine law as a species
of type-lI law. Another account, prominent in Chapter 6, assimilates divine
law to type-I laws. I shall begin with this second conception of divine law
and then turn to the position defended in Chapter 4. 48
In Chapter 6, "On miracles," Spinoza maintains that there is a defensible
conception of divine law according to which it is identical with the universal
laws of nature. In this chapter he addresses the question of whether it is
coherent to suppose the existence of miracles - divinely decreed events -
which are exceptions to the laws of nature. He argues that it is not, because
the content of God's decrees is just the necessary order of nature:
Bur since nothing is necessarily true except by divine decree alone, it most clearly
follows that the universallaws of nature are simply God's decrees and follow from
the necessity and perfeetion of the divine nature. If anything therefore were to
happen in nature that contradicted its universal laws, it would also necessarily
contradict the decree and understanding and nature of God. Or if anyone were
to assert that God does anything contrary to the laws of nature, he would at the
same time be compelled to assert that God acts contrary to his own nature, than
which nothing is more absurd. .. Consequently, nothing happens in nature that
contradicts its universallaws; and nothing occurs which does not conform to those
laws or follow from them. 49
On this way of conceiving of divine law, God's decrees are identical with
the determinate and necessary ways in which his power is expressed in
nature. "[T]he decree of God, his command, his utterance, his word are
be found there as moral teachings universal to all men, but only as instructions uniquely ad justed
to the understanding and character of the Hebrew nation, and therefore relevant to the prosperity
of their state alone" (G III 7olr6-2r).
48 Spinoza acknowledges this duality in discussing the meaning of the expression "word of God" in
Chapter I2: "When 'word of God' is predicated of a subject which is not God himself, it properly
signifies the divine law which we discussed in chapter 4, that is, the religion that is universal or
common to the whole human race. On this subject see Isaiah LIO etc., where Isaiah teaches the
true way of living [verum vivendi modum] , that does not consist in ceremonies but in charity and
integrity of mind [vero animo], and calls it interchangeably God's law and the word of God. It is
also used metaphorically far the order of nature itself and fate - since in truth this depends upon
the eternal decree of the divine nature and follows it" (G III r62lr5-24).
49 G III 82-83.
Spinoza and Law 199
(finis). Human law is law that is dictated solely for the purpose of protecting
life and preserving the state (ad tutandam vitam, <& rempublicam) , whereas
divine law is called "divine," because it is concerned with the attainment
of our supreme good (summum bonum), which Spinoza identifies with the
true knowledge and love of God (Dei veram cognitionem, <& amorem).
Although both human law and divine law consist of laws of reason,
they have distinct roles in Spinoza's philosophy. Human laws promote the
attainment of goods (our "true interest"), but not the highest good. Signif-
icantly, even human law is granted a larger purpose than the preservation
of life. Its end includes the preservation of the state, or commonwealth,
within which human beings can pursue their talents and prosper. The
province of human law, therefore, must include the laws by which astate
can be formed and maintained. 55 Nevertheless, living according to human
law alone is not sufficient for the attainment of our "supreme good." For
this, Spinoza says, we must live by divine law.
Since divine law is defined as the "rule of living" by which we attain our
supreme good, its content is fixed by the content of that end. In Chapter 4,
Spinoza deploys a cluster of arguments in defense ofhis conception of our
end as the knowledge and love of God. 56 Our highest good and happiness
(beatitudo) reduce to the knowledge and love ofGodY From this, he says,
it immediately follows that the means to this end can be identified with
divine law:
The means required by this end of all human actions, which is God himself so
far as his idea is in us, may be called the commands of God, because they are
prescribed to us, as it were, by God himself so far as he exists in our minds, and
therefore the rule oflife which looks to this end is best called the divine law.58
Given Spinoza's stated goal of challenging the idea of divine law as the
external command of a sovereign being, communicated in Scripture, we
must attend to his careful phrasing ofhis view. Divine law is "prescribed to
us, as it were, by God himself so far as he exists in our mind [quasi ab ipso
55 See TTP, Chapter 16 and E4P37s2. Ir is worth noting that within the category of human law we
can distinguish laws that the rational person prescribes to herself far the sake of a safer and more
comfortable life (the dictates of reason, as presented in the Ethin), and laws that are prescribed to
others, for the sake of the same ends (e.g., the ceremoniallaws and morality of the Hebrew people).
On the latter, see note 47.
56 Whether these arguments are sound within the terms of Spinoza's philosophy is a question I cannot
address here. In brief, Spinoza maintains: (1) our highest good consists in the perfection of our
intellect; (2) the perfeetion of our intellect consists in the knowledge of God and of all things in so
far as they depend upon God; (3) our happiness is greatest when we love and enjoy above all else
God, the most perfeet being (G m 59-60).
57 G m/60/r8-20. 58 G m/60.
Spinoza and Law 201
Deo, quatenus in nostra mente existit]. "59 The double qualification of the
sense in which divine law can be regarded as a command of God points us
back to the original definition of type-lI laws as laws that human beings
prescribe to themselves and others for some purpose. Stricdy speaking, God
does not command anything at all. The command is the prescription of a
human being who possesses (as all human beings do) the idea of God. 60
The content of divine law is fixed by the rule of living which has for
its end (linem spectat) the knowledge and love of GOd. 6I According to
Spinoza, "it is for universal ethics [universalem Ethicam] to inquire what
these means are and what is the rule of life which this goal requires, and
how the foundations of the best state and the rules for living among men
follow from it."62 This promissory note is made good in the Ethics. What
is interesting about Spinoza's statement of it, is that he presents the rules
of human law as a means to the summum bonum. This is not to be read,
I think, as implying that the rules of living associated with human law
cannot be derived from their proper end, the preservation of life and the
state; rather, Spinoza suggests that having fixed our ultimate end as the
knowledge and love of God, we are also able to derive the principles of
human law from it, as a means to that end. 63
In Chapter 4, Spinoza says that he will limit hirnself to speaking of the
divine law "in general." His expressions of the law are highly schematic.
Given the content of our end, the "sum of the divine law ... and its highest
precept is to love God as the highest good."64 The crux of the law is
that we are to love God not because we fear his punishment or des ire his
reward; rather, we are to love God from the very fact that we know hirn,
or know that the knowledge and love of God is the highest good. 65 An
interpretation of these remarks can be developed from the account of the
59 G III 60/22-23.
60 Curley ("The State of Nature and Its Law," p. HO) also stresses this point. In TTI', Chapter 4,
Spinoza writes: "natural divine law is inferred from the consideration of human nature alone ...
For the natural light of reason ... requires only what carries the dearest evidence of being a good
or a means to our happiness" (G III/6I-62).
61 G III 60124. 62 G III 60124-29.
63 In similar fashion, Spinoza interprets the revelation of divine law to include the foundations of
morality. In TTP Chapter 12, he writes that in one sense only have we "received the divine law,
uncorrupted. For we see from Scripture itself, and without any difficulty or ambiguity, that the
essence of the Law is to love God above all things and one's neighbor as oneself' (Gm I65/II-I3). See
also the Preface to the TTI', where he describes the "revealed word of God" as "a pute conception
of the divine mind which was revealed to the prophets, nanlely, to obey God with all one's mind
by practicing justice and charity" (G II 10125-28).
64 G III 60-61.
65 G III 60/31-34. In Annotation 34 to the TTI', Spinoza stresses the necessary relation berween
knowledge of God and love of God: "As for the divine naturallaw whose highest precept we have
said is to love God, I have called it a law in the sense in which philosophers apply the word law to
202 Spinoza and Law
laws of reason presented in the previous section. Divine law is the rule of
living that human beings prescribe to to themselves in order to achieve the
knowledge and love of God. Among the "commands" of this law are the
dictates of reason that form the basis of human law. Over and above this,
however, Spinoza conceives of the way oflife determined by divine law as "a
rationallife" [vita rationalis]
rationalisJ or "the life of the mi nd [Mentis vita], which is
mind
defined by understanding."66 Thus, divine law requires a life dedicated to
the pursuit of understanding, specifically knowledge of God, from which
the love of God necessarily follows. 67
We can speak of divine law as a rule ofliving that human beings prescribe
to themselves for the sake of the knowledge and love ofGod. Yet, as we have
seen, the relevant notion
nation of prescription amounts simply to a consistent
desire to act in the way specified by the law. In the case of the laws of
reason, this is adesire to act in the way in which we are determined to
act by reason, conceived as the mind's inherent power of acting. Spinoza is
clear in the Ethics that the way oflife determined by reason is that specified
by divine law. "What we strive for from reason," he writes, "is nothing but
understanding."68 Since the "greatest thing the mind can understand is
God, that is ... a being absolutely
absolurely infinite, without
withour which ... nothing can
either be or be conceived,"69
conceived,"6 in so far as we are led by reason, we strive to
9
To
Ta the extent that the affections of the mi nd are determined solely
mind
by its own power of acting, we necessarily pursue knowledge of God.
However, not all
aH the affections of the mi nd are determined in this way. More
mind
often they reBect
reRect the determination of the mind's power by the actions
of external
extern al things, in which case we des ire to pursue ends other than the
knowledge of ofGod.
God. Under
U nder this circumstance, a conRict
conBict mayensue
may ensue in which,
among other desires, we feel the puH pull of reason - feel we should answer its
oflaw
Spinoza Sconception 01 163
I have argued that Spinoza operates with two distinct conceptions of divine
law in the TTP: one a principle of natural necessity (a type-I law) and one a
"rule ofliving" (a type-lI law). For simplicity's sake, let us call these divine
lawr
lawI and divine lawn. We are now in a position to understand better the
rationale for this distinction, and how the two types of law relate to each
other. The short answer, I suggest, is this: (I) everything we do, including
our efforts to act in accordance with divine lawn, is dictated by divine lawI;
lawr;
and (2) we fulfill the requirements of divine lawn, in so far as we endeavor
to understand the world as ordered by divine lawI.
lawr.
It is illuminating to see Spinoza here as responding to the theological
tradition, which operates with an analogous dual conception of divine law.
There is divine lawu an original decree by which all things are brought into
77'1 G III
III 6r16-9.
61/6-9. 77 22 G III
III 61/9-12.
204 Spinoza and Law
existence and by which the created world develops through time; and there
is divine law2 , a specific
speciflc command to human beings, which lays down
the range of their responsibilities to God and to other human beings.
At the nexus of these two nations
notions of law are traditional worries about
divine providence. On the assumption that God is a just ruler, one expects
that faithful obedience to divine law2 should be rewarded in a suitable
manner.
mann er. Yet whether this happens is a function of divine lawlawr>
1 , which has
ordained everything that will ever happen in the created world. The faith
of the believer is that God has designed the world such that the natural and
oflob, repeated
moral orders intersect in the appropriate ways. The lament oOob,
by sufferers throughout the centuries, is that this does not seem to have
happened.
Spinoza's reinterpretation of divine law is intended to alleviate this anx-
iety. As he writes in TTP, Chapter 6:
[Ih
[I]t was thoroughly obscure to
to most prophets how the order of nature and human
affairs was consistent with the conception of divine providence which they had
formed. However, this was always entirely clear to
to the philosophers who seek to
understand things not from miracles but from clear concepts, or at any rate to
to those
[philosophersJ who place true happiness in virtue and peace of mind alone, and do
[philosophersl
not attempt to
to make nature obey them but rather strive to
to obey nature themselves.
They have certain knowledge that God directs nature not as the particular laws
of human nature urge but as its universallaws require and, hence, that God takes
account not just of the human race but of nature in its entirety,73
entirety.73
Spinoza recognizes that his solution to the problem of providence is by
no means original. The basic move of identif}ring
identifYing human happiness with
the comprehension of the impersonallaw of the universe is one he shares
with the Stoics - a debt he acknowledges in his own use of the injunction
"follow nature."74 To
Ta resist the necessary order of nature, the order dictated
by divine lawr, is in vain. Consequently, we have no option but to accede
to that order. The insight of the philosopher is that there is a way of
acceding to God's will that goes beyond mere resignation. To Ta accede because
one understands the necessary order of things is intrinsically satisf}ring,
satisfYing,
both intellectually and affectively. On the path charted by Spinoza, such
understanding is constitutive of our highest good. Thus, the best "rule of
73 G III 88.
74 See E4apP32: "Nevertheless,
"Neverthe1ess, we sha11
shall bear calmly those things which happen to us contrary to what
the principle of our advantage demands, if we are conscious that we have done our dury, that the
power we have could not have extended itself
itse1f to the point where we could have avoided those things,
and that we are apart of the whole of nature, whose order we follow [cujus ordinem sequimurl ...
Hence, insofar as we understand these things rightly, the striving of the better part of us agrees with
the order of the whole of nature [cum ordine totius naturae convenitJ"
cOn/Jenit]" (G II 277/8-21).
Spinoza and Law 205
75 G III 461r7-22.
46/17-22.
206 Spinoza and Law
5 CONCLUSION
li mi ted role in Spinoza's Ethics. By contrast,
The notion oflaw plays only a limited
an analysis of the concept oflaw,
of law, and especially divine law, lies at the heart
ofhis earlier masterpiece, the Theological-Political Treatise. The significance
of this analysis lies largely in the challenge it poses to orthodox theological
understandings of divine law as represented in Hebrew Scripture. Against
the conception of law as the literal command of a sovereign being who
holds human beings accountable for their actions, rewarding obedience and
punishing disobedience, Spinoza interprets divine law as, most basically,
nothing more than the necessary order by which all things are connected
and determined to occur in nature. This law has not been dicta ted by a
dictated
ml er who stands in judgment over human beings; it simply is the necessary
ruler
order of nature, within which human thoughts, decisions, and actions find
their inevitable place.
The brilliance of Spinoza's account of law consists partly in the use
to which it is put in rethinking the history of the Hebrew people and
their religion from the perspective of philosophical reason. Beyond this,
however, Spinoza's account addresses general issues concerning the force
of law and the role it plays in human action, in a way that goes go es beyond
anything he says in the Ethics. While law has its primary philosophical
meaning as a principle of necessity rooted in the natures of God and finite
things (type-I laws), Spinoza simultaneously develops an account of law
as a normative principle that human beings "prescribe to themselves or to
others for the sake of some end" (type-lI laws). It is an inescapable feature
of human practice that we enjoin ourselves and others to act in specific
ways. In some cases, the end for which we are to act is explicitly designated;
in others, it is left tacit. Spinoza's analysis sharply distinguishes laws that
are prescribed by an external authority and bind their subjects through the
threat of punishment (or promise of reward) from laws that an individual
S4
54 Natural Law
rule - which we may call inscription - that might explain the ethical and
legal dimensions to be found in a deterministic project for individu-
ation. Thus, his revolutions in naturallaw theory continue to surface.
Laws of Nature 55
S6 Natural Law
The use of 'either ... or' [vel ... vel] in a sentence establishing two differ-
ent meanings for laws seems to point primarily to the hypothesis that
the deontic and the ontic realms are alternative. Later on, however, the
deontic dimension seems to surpass the ontic one in importance, such
as previous writers had emphasized:
Laws ofNature S7
ment
rnent of reason, not necessarily an absence of reason). The latter, on
214 Spinoza and Law
58 Natural Law
the other hand, claimed that the same formal motivation was formu-
lated in a rational principle leading to cognizable established values -
displacement
it would be a dis placement of will in favour of reason. 4 Some authors
were in-between these two, both in the Catholic and in the Protestant
traditions: Suarez, for instance, thought that laws had to reflect the two
main characteristics of God's command - that is, His rational judge-
ment and His will; and Hobbes understood naturallaws as conclusions
of a rational intellective process that acquired legal formulation when
they were imposed by someone in an authoritarian position.
Spinoza distances hirnself from these debates. Aprescription
A prescription is for
hirn primarily a judgemental enunciation that goes through a men-
tal process endowing it with imperativeness. Prescriptions acquire a
normative status in a process of human relations - the deontic realm
is not present beforehand in the ontic, but emerges from it. Logically,
aaprescription
prescription for Spinoza would be a proposition of modal logic that
goes through an epistemological transformative process into a prop-
osition of deontic logic, without the intervention of reason or of a
transcendent will.
There seems to be implicit in Spinoza's excurses on laws the idea that
traditional natural law theories are usually deontological, since natural
laws are regarded as legal or moral pronouncements endowed with six
general characteristics, which are supposedly shared by naturallaws and
positive laws alike insofar as they are normative. They are the following:
Laws of Nature S9
ofNature
60 Natural Law
Laws ofNature 61
In a nutshell: antecedence;
antecedencei non-causality;
non-causalitYi contingency; possibility;
imposition of a good; rejection of an evil. Still, these characteristics are
not sufficient to create obligations - something
samething else is lacking. Some
Same
natural law theories say that it is an authoritative will (legal voluntar-
ism), others that it is reason (legal intellectualism), and others that it
is both (Ockham, Suarez and Hobbes, for instance). In the first case,
the command operator that imposes a value must be the expression of
someone's will insofar as that someone is regarded as fulfilling a legit-
imate status for issuing commands - and legitimacy is acquired by sev-
eral different possible criteria external to the deontic pronouncement,
such as majoritarian or monopolistic force, divine nature, political and
legal authority, charisma, or religious prerogative. In the second case,
the command operator identifies a value that is in accordance with
human reason and for which reason ought to be manifested in everyday
human life. In the third case, the command operator onlyonIy creates actual
obligations if both previous hypotheses are fulfilled.
For Spinoza, none of these three hypotheses are valuabie.
valuable. What is
lacking for the creation of obligation is something else entirely. He
accepts these six characteristics as inherent to prescriptions, but he
also seems to believe that they make prescriptions binding in a very
short natural expression. Tagether,
Together, they lack imperativeness. In order
to acquire such imperativeness, prescriptions must undergo a process
that corresponds neither to traditional
tradition al voluntarism nor to intellectual-
ism. Still, they should maintain those primary six characteristics. In his
own words:
What
Wh at is commonly meant by a law is a command which men may or
may not follow, since a law constrains human powers within certain
limits which they naturally exceed, and does not command any-
thing beyond their scope. Law therefore seems to have to be defined
more precisely as 'a rule for living which a man prescribes to himself
or others for some
same purpose'. (TTP IV/58)
62 Natural Law
the rejection of what opposes the prescribed good ('constrains human pow-
naturally exceed'), the possibility of
ers within certain limits which they naturaBy
what is prescribed ('does not command anything beyond their scope'),
the laws' precedence before prescribed facts ('man prescribes to hirnself
or others'), and the intrinsic evaluative positivity of same
some purposive good
('for same
some purpose'). Nevertheless, these characteristics da do not consti-
tute an imperative statement, since neither of them nor aB all of them
together entail immediately the actual nationnotion of command, but merely
a discursive modal
modallogic.
logic. Not even the prescriptions' intrinsic positivity
forms
farms necessarily a deontic operator, since affirming a positive value is
not quite the same as demanding the permanent compliance with that
positive value. Something is lacking in order to transform statements of
modallogic (x is necessary) into statements of deontic logic (x ought to
be done). And Spinoza's deterministic ontology will show that it is nei-
ther someone's will nor necessary rational constructs.
His argument should be understood as foBows.folIows.
For Spinoza, each thing considered in itself is said to be perfect inas-
much as it is said to be real - it is the more perfect the more reality it
expresses and the less perfect the less reality it expresses. If lf everything
that is can be conceived as real at least to a certain minimum degree,
then it can also be conceived as perfect at least to a certain minimum
degree, since reality and perfection coincide (E2d6). Ultimately, since
there are degrees of expressive reality, there are also degrees of expres-
sive natural perfection, and samething
something is called
caBed perfect or imperfect
only insofar as it can be compared to samething
something respectively less per-
fect or more perfect. Perfection and imperfection are therefore mere
comparative notions or 'mo 'modes
des of thinking, that is, notions we are
accustomed to feign because we compare individuals of the same spe-
cies or genus to one another' (E4pref).
God, however, as a unique self-productive
seJf-productive substance, is all-inclusive
of reality and therefore incomparable, which means God can be con-
sidered adequately as absolutely perfect - a supreme perfection that is
not a me
merere mode of thinking since no imperfection can be attributed
to God (EIp33s).
(Elp33s). Since 'whatever is, is in God, and nothing can be or
be conceived without God' (EI pIS), reality in things is the participative
(ElpIS),
expression in a specific degree of God's very reality. Furthermore, God
acts from what is proper to God's nature alone (EIp17),
(Elp17), which includes
the necessity that infinitely many things in infinitely many modes
must follow from it (EIp16).
(Elp16). This means that aB all that is and is conceived
is a necessity of God's essence, and could never be or be conceived in
a different way from the one resulting from God's essential necessity
Spinoza and Law 219
Laws of Nature 63
If all
a11 that is and is conceived follows
fo11ows necessarily from God, then the
essence, the existence and the conception of all a11 things follow
fo11ow necessar-
ily from God both in their origin and in their perseverance. And since
there is no imperfection or inconstancy in God, all a11 of God's decrees
are necessary (Elp33s2). This entails that there is nothing actually
actua11y con-
tingent in Nature, for nothing follows
fo11ows from God that could have fol-
lowed in some other way, and all a11 is caused by God to the point that not
even the essences of non-existent things can constitute models yet to
be reified in Nature's infinite understanding. Therefore, 'in nature there
is nothing contingent, but all a11 things have been determined from the
necessity of the divine nature to exist and produce an effect in a certain
(Elp29)10.
way' (Elp29)1O.
Notwithstanding this, Spinoza admits that experience demonstrates
man's insistence on considering the infinite world of finite things as a
world made of contingency and possibility. Hence, God's necessitarian
order in which man takes part as areal participant entity or productive
mode is not understood by the majority of men at all. a11. With regard to
singular things, this implies that men find it difficult to understand the
necessary causal concatenation taking place in the production of all a11 that
is singular. If all
a11 things belong to that infinite world of finite things where
each thing is caused by some other thing also caused by another thing,
ad infinitum, and most men's understanding is highly insufficient not
only to determine something's causality but also to grasp the exact cause
of that something, then men consider them as non-necessarily caused.
They ignore what causes what (and possibility, according to Elp33s and
E4d4, is exactly this) and what determines the singular essences' exist- ex ist-
ence or non-existence (and contingency, according to E2p31c, E2p3lc, is exactly
this). Possibility and contingency are therefore, in a necessitarian natural
ontology, mere defects or loopholes in human understanding, and not
actual characteristics of Nature's reality (CM 1/3).
Loopholes in understanding are ignorance, that is, lack of knowledge
of what things are and of what they can. These bottomless pits found in
ca11ed doubts. When dubiousness is absent
the terrain of knowledge are called
220 Spinoza and Law
64 Natural Law
from the existent factual world, the causal connection between things
becomes clearer, and those effects found in such a causal nexus become
objects ofwhat
of what Spinoza calls 'joy' [laetitia] or 'sadness' [tristitia]. The cer-
tainty in the necessity of the effect provokes in the man without doubts
either an affect of 'confidence' and safety [securitas] (if it derives from
joy) or of despair [desperatio] (if it derives from sadness). On the other
hand, if something is conceived as an object of joy or sadness and its
necessary causal concatenation is not understood, then there is doubt,
which means joy or sadness lose certainty and they become inconstant.
When this happens, Spinoza says we get the affects of 'hope' [spes] and
'fear' [metus] (E3p18s2). Hence, doubt is the crucial element in the pas-
sage from confidence and despair to hope and fear - whenever the idea
of the affect is certain, there is confident safety or despair; whenever
the idea of the affect is doubtful, there is hope or fear. Doubt deter-
mines the affects of hope and fear.
For instance, if some
so me good is conceived as augmenting human power
but with an unknown cause, there is actual joy. However, it is an uncer·
tain good, which means that the joy inherent to such representation
is highly unstable - it is actually hope and not confidence or safety.
But since 'he who is suspended in hope and doubts a thing's outcome
is supposed to imagine something which excludes the existence of the
future thing' and 'so to that exextent
te nt he is saddened, and consequently,
whilst he is suspended in hope, he fears that the thing will happen'
(E3dAff13), then hope and fear are twin affects whose parenthood is
doubt - insecurity and instability are their entailments.
Fear, however, even if inversely connected to hope, is always a phan-
tom of impotence and a permanent obstacle to the performance of what
is considered useful and good. Thus, all men strive in their own way to
achieve the definite eradication of fear and the sub subsequent
se quent conquest of
confidence and safety. As Spinoza explicitly says, 'there is no one who
does not wish to live in security and so far as that is possible without fear'
(TTP XVI/197). If doubt gives birth to hope and fear, and both are always
hand in hand, and if despair is the extreme affect of impotence and the
maximum sadness achievable, then the eradication of fear occurs only
through a more powerful affect of confidence and safety, which requires
in turn the suppression of doubt. Hope does not eradicate fear since it
is its twin affect, and Spinoza always claims that an affect can only be
displaced by another most powerful and contrary affect rather rat her than by
reason. Thus, the affect contradicting fear can only be safety.
Those bottomless pits in the terrain of knowledge must be cov-
ered in some way in order to overcome fear. However, when human
Spinoza and Law 221
ofNature 65
Laws ofNature 6S
66 Natural Law
yet quite the notion of necessity that eradicates contingency and pos-
sibility altogether. In fact, they could not do so; otherwise, they would
not be prescriptions in the first place. The most they can achieve is
the denunciation of what in the worid
world of unpredictable things should
become necessary. In Spinoza's philosophy, prescriptions acquire a
deontic quality by demanding the necessity of what wh at man imagines
to be good in a worid
world he believes is made of contingencies and pos-
sibilities. Hence, by endeavouring to achieve stability, certainty, and
safety through the eradication of insecurity, human imagination makes
imperative what in the light of reason is merely an indication of God's
necessary causal nexus. Prescriptions appear as the imaginative demand
for the necessity of something believed contingent and possible. This
means they are not mere descriptions of a positive value or negations of
their contingent opposites, but mostly assertions of the need to trans-
form a contingent positive value into a necessary one.
A duty for Spinoza is the idea of the imagination conceiving the use-
fulness of transforming something believed contingent and possible
into something necessary - it is the enunciation of that usefulness in
the form of a statement of necessity directed to a woridworld believed to
be made of contingencies. The deontic realm is for Spinoza a reflexive
movement of the imagination: man represents confusedly what is onto-
logically necessary because he does not und understand
erstand natural necessity,
and therefore calls it contingent; subsequently, he represents the latter
as a source of insecurity to be overcome through the requirement to
make necessary a previously conceived goOd.
good. ll
11
Laws ofNature 67
68 Natural Law
Laws ofNature 69
70 Natural Law
The best thing, then, that we can do, so long as we do not have per-
feet knowledge of our affeets, is to coneeive
conceive a eorreet
correct principle of
living [rectam vivendi rationemJ, or sure maxims [dogmata] of life, to
eommit them to memory, and to apply them constantly to the par-
encountered in life. In this way our imagin-
ticular eases frequently eneountered
ation will be extensively affeeted by them, and we shall
sha11 always have
them ready. (ESplOs, my
myemphasis)
emphasis)
Laws of
ofNature
Nature 71
This occurs because laws, when referred to Nature, have for both
Grotius and Hobbes two different meanings: the primary prescriptive
one, and the secondary descriptive one. The latter canstitutes
constitutes laws
only metaphorically insofar as it can be expressed in a sort of deontic
formulation by a transcendent creator of Nature instituting the ontic
order through a deontic proposition of the type 'there ought to be what
heretofore is'. In this non-prescriptive sense, both Grotius and Hobbes
represent equally versions of legal voluntarism, as opposed to the legal
intellectualism they adopt in their prescriptive modes (as Grotius's
etiamsi daremus argument in his later works illustrates). Nevertheless,
beyond Grotius and Hobbes, the growing early modern emancipation
of reason seems to induce an understanding of Nature not as mirror of
a transcendent God's instantaneous or continuous volitions but rather
as a given model of rationality imposing on God. The natural sciences'
development in early modernity represents modern cosmology's
casmology's strug-
gle for emancipation from the constraining arms of theology, which
means that the natural sciences absorb Grotius's etiamsi daremus argu-
ment in their methods. Through this emancipation, the modern nat-
ural sciences begin to use the expression 'laws of Nature' in a primary
descriptive sense. Hence, legal intellectualism appears also in scien-
tific language. In a natural context, there is no longer a primary and
228 Spinoza and Law
72 Natural Law
a secondary meaning for far laws, but rather two different meanings with
equal value applicable in two different contexts: a prescriptive meaning
in direct reference to natural law, either integrating it objectively (like
naturallaw,
Grotius) or limiting it according to parameters conducive to peace (like
Hobbes), and applicable only to man; and a descriptive meaning in dir-
ect reference to the modern natural sciences never really connected to
naturallaw, either listing the permanence of certain constants occurring
in what already exists or establishing general causalcausa 1 relations between
parts of a natural wh oie, and applicable to a11
whole, all natural beings.
Spinoza, on the contrary, says that natural law is constituted by the
laws of the nature of each individual thing and is coextensive with its
power. Natural law signals a11 all being that can be qualified as power-
ful. The language of natural law must be a language for the presenta-
fu!.
tion of power. This will entail that, in the threefold combination of
individuaIity-Iawfulness-power that forms
individuality-Iawfulness-power farms Spinoza's natural law the-
ory,
ary, lawfulness is probably the main point in which Spinoza departs
from both Grotius and Hobbes. On the one hand, Spinoza departs from
Hobbes by not distinguishing between rights and laws - the latter and
Iike in Grotius, are not opposites at all but rat
the former, just like rather
her seem
to coincide. On the other hand, unlike Grotius, laws in Spinoza's nat-
ural law theory do not have the form of normative prescriptions, since
these are imaginative constructs and therefore not rea11y really conceivable as
inherent to each thing's essence or nature. Spinoza, in fact, often iden-
not ion of nature referred to individual things with the not ion
tifies the notion
of essence referred to the same individual things. So the expression 'the
laws of the nature of each individual thing' (TTP XVI) mentions that
which is distinctive to the individual thing's being - the distinctive
trait of the ontic devoid of deontic references.
naturallaws
At first glance, Spinoza's natural laws seem more descriptive than pre-
farmulation . But this does not imply that imagina-
scriptive in their formulation.
tive prescriptions can become simply what Grotius called ca lied voluntary laws
and Hobbes civil laws - that is, the realm of positive law opposed to
the realm of natural law. The reason is that a prescription is neither
something unnatural, anti-natural or a-natural - prescriptions are to
be expected from the existent conditions of those individual things
expressing God's essential power and capable of imagining. And just
as experience shows men always living socially (TP 1/7), it will just as
easily show men always living Iiving in need of prescriptions. Even though
they are not actual expressions of God's power since they do not have a
reality of their own and do not integrate any given thing's nature, pre-
scriptions are understood from some characteristic traits and inherent
Spinoza and Law 229
Laws of Nature
ofNature 73
mechanisms of wh what
at is unmistakably natural (man) and therefore can
never simply be termed 'artificial' in opposition to 'natural',17
'natural'.J7
Prescriptions are the imaginary way of understanding the seemingly
descriptive laws of men's associations. It is true, however, that in Spinoza
there is neither a primary desire for sociality (as in Grotius) nor the con-
ception of society before the actual conception of man (as in Aristotle's
zoon politikon), so that a specific association between men is not some-
thing embedded in human nature and therefore does not follow neces-
sarily from man's nature's mere description. But if man imagines when
determined by the present and actual existent conditions of his essence,
he is simply developing something natural to hirn him whenever he does
it. In this sense, prescriptions can be understood without the need for
adetour from Nature. All laws - even prescriptive ones - for Spinoza
can ultimately be called natural with reference to some sort of human
understanding of God's necessity, since they always relate to something
describable as consistently natural.
By performing the connection between naturallawand
natural law and naturallaws,
Spinoza identifies the laws of the nature of each individual with its
powerful right - there is a strong proximity between what is distinct-
ive to each individual and that individual's participation in natural
law. Consequently, the laws of Nature are not constrained to any given
thing's ideal model, for they mean 'the laws of the nature of the thing',
Le. the identification of what each thing is in itself, of its essence - they
constitute both natural
naturallawand
law and what early modernity refers to as nat-
ural fights.
rights. There is no real distinction between an objective natural
law and subjective natural rights. Naturallaw is to be found where nat-
ural laws are, whether they are common to all parts of Nature (general
urallaws
laws of Nature) or specific to each individual thing (laws of the nature
of each individual thing). Ultimately, finding the field of application of
natural laws coincides with finding an existent natural individual - a
law of nature is to be found where individuality iso That is why it is not
specific to man.
Such a coincidence between natural law and the laws of Nature
tends to blur any distinction, typical in modernity, between subject-
ive rights and objective laws. All laws are for Spinoza the permanent
account of a thing's essen
essence,
ce, which means there is no asymmetrical
separation between a factual subjectivity and a discursive objectivity
(either descriptive or limitative of the subjective fact). This entails that,
in Spinoza's naturallaw theory, pre-eminence can be attributed neither
to subjective factors nor to objective ones. Unlike Hobbes's, Spinoza's
conception of jus is no longer a memere
re subjective distinctiveness (it is not
230 Spinoza and Law
74 Natural Law
Laws ofNature
o(Nature 75
7S
these things as in their true codes, which govern the coming into
existence and the ordering of all
a11 particular things. (TIE 101127)
101/27)
The fact that laws are inscribed in a thing's essence does not entail that
they can be considered propositional aposteriori perceptions of some-
thing al ready inscribed in God's essence, as if the thing could be repre-
sented in God's eternity in a static position. On the contrary, laws are
distinctive manifestations of the things' inscription into the dyn dynam-
am-
ics of God's self-productiveness, and therefore are both inscribed and
inscriptive, since they a110w
allow the comprehension of 'how' each thing is
inscribed (by God's efficient causality) and inscribes itself (by its own
singular expression of God's efficient causality) into Nature. 18l8
The laws of the nature of each individual thing are hence the inscrip-
tion of the thing's essence and of everything that fo11ows
follows from it because
the thing iso They are the inscription of the thing's power - and that is
the very nature of law [jus], that is, the thing's natural 'right-Iaw'.
In a crude example, physical laws, including biological and physio-
logicallaws, are no longer typically descriptive - non-prescriptive laws
are not just physical laws. Even though Spinoza exemplifies natural
laws through physicallaws, they are just that: mere examples. Physical
laws are obviously a type of inscriptive law, but they do not exhaust
the fu11
full meaning of inscription - even grammatical rules can be obvi-
ous examples of necessitarian non-prescriptive laws. Physical laws are
now mostly the whole Nature's actual affirmations describable (also) in
physical terms, including biological and physiological ones. This is how
they constitute naturallaw.
76 Natural Law
Laws of Nature 77
78 Natural Law
3. Causalityunfolds
Causality unfolds through positive determination - nothing in Nature
can be considered non-determined. If all effects have a cause, every
cause is adetermination. Spinoza's natural laws have no room for
indeterminacy - a cause's indeterminacy is precisely the content of
'possibility'. If all essen ces are causal and determinative, then in the
ontological realm of naturallaws, there are no possibilities as Spinoza
conceives them. And this occurs whether or not the essences' expres-
sions in Nature - their 'laws of nature' - exist in action or not. That
is why it is neither proper to state that 'the essentia is the containing
form or the potential nucleus from which the action of the individ-
ual confronting the surrounding world will spring', nor to say that
'natural right [naturae jus] is the sphere of individual appropriation
that action realizes in conformity with the possibilities implicit in
the essence' (Battisti, 1977, 631).
Laws ofNature
of Nature 79
causality does not express natural reality. Cause and effect are in
Spinoza's Nature still subsequent to each other, but there is no clear
ontological rupture between them, since both are integrated neces-
sarily into the same productive moment. Causality is no longer like
the crossing of a bridge. It is actually the development of an intrin-
sic and interior productivity - this is the immanent conception of
sie
causality.
Spinoza's immanent causality implies that natural laws cannot
convey a simple chronological differentiation in the realm of onto-
logical reality.
logieal reality. Therefore, a given individual thing's natural laws are
not antecedent to what the thing actually iso Consequently, there
is no disparity between a rule and a regulation - laws of Nature are
expressions of causal ontological productivity within themselves.
Unlike what occurs with prescriptions, in Spinoza's world of exist-
ences there is no observance of or compliance with prior valid statutes,
but rat her only the inference of the laws' productivity within the
being. This is mostly because all natural necessity
productivity of being.
expresses God's necessity, whose absolute perfection invalidates dur-
at ion as an intrinsieally
ation intrinsically essential characteristic only to replace it with
eternity, in wh ich there is no before or after. In Spinoza's own words,
which
'in eternity, there is neither when, nor before,
befare, nor after' and 'God was
not before his decrees, and cannot be without them' (Elp33s2).
Thus, natural laws are not instituted for the eventuality of what
which case
may follow, in whieh ca se laws could still be valid even though noth-
ing predieted
predicted in them had yet occurred. On the contrary, their val-
idity is a property of a necessarily efficient productivity - whenever
there is being there is also causality and necessity, and that is the
laws' field of validity and application. This implies that naturallaws
cannot be mere
me re descriptions of being subsequent
sub se quent to the existence of
being, in whieh
which case they would not be the productive distinctive-
ness of a thing's nature but rat rather
her a list of the thing's characteristics
observed by experience. They would affirm nothing at all about the
essences' eternity within God's eternity. Therefore, if there is no ante-
cedence in Spinoza's naturallaws, there is also no subsequence. 20
CausalI immanence requires the simultaneity of the laws to the
Causa
essences. The reciprocal non-ruptured presence of the productive
and the produced entails that laws are simultaneous non-ruptured
references of causes to their effects. Natural laws are understood
solely in the manner through whieh which they call upon themselves
the occurrence of those effects following from the causality they
inscribe. Laws do not throw those effects into a world alien to
236 Spinoza and Law
80 Natural Law
fjeld
their field of application. And if laws are not exterior to their field
of application, it is because they not only produce the latter, they
also produce themselves whilst producing the latter. Laws do not
act upon content able to subsist beyond and outside them - their
immanence refers to wh at they produce and to their own process of
production within themselves.
5.
S. Due to the influence of Deleuzian interpretations, laws are fre-
quently associated in Spinoza more with a typical biological model
than with a typical juridical model, which means they are con-
ceived mostly in a positive and expansive manner and not so much
in a negative or restrictive one. However, the ethology that Deleuze
(1988; 1992) captures in Spinoza, when addressed in biological
terms, seems to legitimize an analogy between laws and medical
pronouncements. Such an ethology - which wh ich is not simply ethical,
political, and cultural, but rather
rat her mostly aetiology - would tend
to interpret natural laws as diagnostics or descriptions of what wh at is
good or bad in Nature, Le. i.e. as criteria for wh at is healthy and for
what
what is pathological. Even though laws applied in biology usually
seem to appear descriptive in their formulations, in this aetiological
interpretation there seems to be an intrinsic positivity of a specific
value much like what happens with prescriptions. By delimiting
good and bad (health and disease), there is an evaluative judge-
ment taking
ta king place over what is more or less real in Nature accord-
ing to criteria of utility and personal human desire - something is
good or bad insofar as it is more or less useful to man, or more or
less desirable by man. This biological-medical analogy remains a
trace of an anthropocentric view of Nature, for it accepts natural
laws as characterizations of Nature formulated from man's perspec-
tive. The impression so me authors have that Spinoza thinks 'like llike a
2005, xlvii) observing individual organisms
biologist' (Hampshire, 200S,
(Jonas, 1973) seems to contain a somewhat hidden anthropocentric
deontology.
But because they belong mostly to the realm of essen ces, natural
essences,
laws can neither be applied solely to man nor simply put in a con-
ceptual context of utility and desire. On the contrary, they mark the
inscription into Nature of any given individual essence without the
need to positively evaluate that which is placed into being by them.
In this sense, naturallaws are more like the 'how' of definitions: they
posit the things' essences
essen ces in Nature and affirm them by determining
each individual thing in a manner that can only be termed positive
Spinoza and Law 237
Laws ofNature 81
82 Natural Law
inscribed essen
essences.
ces. Inscriptive laws of the nature of an individual
thing operate much like the very definition of that thing, which
'neither involves nor expresses anything except the nature of the
thing defined' (Elp8s2). Naturallaws never go beyond the essences
of which they are laws. Because they are neutral with respect to value
parameters, they neither posit the individual essen
essences'
ces' goodness nor
da not involve the rejec-
reject other individual essences' badness. They do
tion ofwhat
of what opposes the inscribed essence.
Laws of Nature 83
ofNature
84 Natural Law
actions in the same way there is, for instance, between joy and sadness.
Active affects are not affects like the rest: they are instead characterized
by the fact that they recover as their source the conatus's strength so as
to positively develop the human individual's intrinsic power, instead
of simply following or bearing those circumstantial blows to which
expressed intrinsic power is continuously subjected. Overall, it is dif-
ficult to see how deontic qualities can fit into these rational affective
constructs, since what reason always points to as good are necessary
means to a necessary simultaneous end.
When affects have imaginative motivations, their judgements of
good and evil are only abstract and imaginary rather than real (E4p62s).
From the viewpoint of adequate knowledge and necessitarian ontology,
therefore:
As far as good and evil are concerned, they also indicate nothing
positive in things, considered in themselves, nor are they anything
other than modes of thinking, or notions we form because we com-
co m-
pare things to one another. (E4pref)
Laws of Nature 8S
ofNature
86 Natural Law
Laws ofNature 87
88 Natural Law
Notes
1. I prefer to call the laws' normative meaning prescriptions rather than norms,
due to the fact that norms - even though they have astranga strong polysemy much
like 'rules' or 'laws'
'Iaws' (they can be either static figurations of what a man is in
a statistical perspective defining normality, or a dynamic direction into an
ideal to be fulfilled) - are never really mentioned by Spinoza whenever he
speaks of Nature or of natural law. Moreover, he only gives norms a philo-
sophical meaning when he calls truth a criterion [normal for the validation
of itself. Therefore, it is not surprising that norms do not have one single
appearance in the TP, for instance.
2. Belaief (1971, 11) says there is not really an alternative, but rather an ambi-
guity,
gUity, in Spinoza's not ion of lex, and that a law is mostly normative in kind,
notion
but she does not explain these passages of the TTP. Wetlesen (1979, 332)
interestingly attributes semantic pre-eminence to the prescriptive dimen-
sion of a law and ontological pre-eminence to the necessary dimension of
a law - at the same time, he diminishes the importance of semantics for
Spinoza's laws.
3. Oakeshott (1975,63.)
(1975, 63.) Authors such as Avicebran,
Avicebron, lohn Seiden, and the early
Grotius are usually considered legal 'voluntarists'.
4. Aquinas (1988, I_IIth, q. 92, a. 2) is probably one of the most preeminent legal
'intellectualists'. As he says, 'just as an assertion is a dictate of reason assert-
ing something, so is a law a dictate of reason commanding something'.
5. disctlSsions about the origins of lex traced it either to legere
Etymological discussions
[reading),
[reading], which required that something should be written down before-
hand, or to elegere [choosingJ, which required the choice to obey or disobey.
6. Scandinavian legal realism represents an exception to this general view on
normative laws, which distinguishes between what a norm is and its val-
idity status. Alf
AU Ross, for instance, says that a norm is 'a directive which
corresponds to certain social facts in such a way that the pattern of behav-
iour expressed in the norm (1) is in general followed by members of the
sOciety, and (2) is feit by them as binding' (Ross, 1968, 93). Ross inserts
empirical criteria into the very conception of a norm, which means that all
norms are inherently valid and they can only be norms at all when they
are observed. As will be seen, there are some similarities between Spinoza's
and Ross's view on laws insofar as they both seem to reject the distinc-
Hon
tion between the idea of laws and the idea of their validity. However, Ross's
Spinoza and Law 245
184 Notes
Notes 185
186 Notes
However, unlike Ross, the laws' efficiency is neither measurable after the
facts of compliance nor (unlike less empirical normative theories) predicted
before the actuallawful facts.
21. LeBuffe (2010, pp.175-193) says that Spinoza's normative ethics consists
of particular claims about what ought to be done and about what rational
men do in order to attain a right way of living in the highest degree. There
are, in his view, three types of normative claims: universal prescriptions
for the control of passion that are action guiding and apply to everyone
far
at all circumstances; specific descriptions of what means for perseverance
are available to each and every man in different distinctive circumstances;
and descriptive propositions presenting circumstances, actions or affective
states that are associated with the free man and helpful to all a11 men insofar
as they are tools for a correct affective self-diagnosis (to know whether one
is led by passion or by reason). LeBuffe's analysis is supported by a good
deal of textual evidence. The only main problem with it lies in his fail-
ure to acknowledge the fact that prescriptions are imaginative rather than
rational - Spinoza himself
hirnself says frequently in E5plOs (one of the most pre-
scriptive of Spinoza's texts) that prescriptions are things we should commit
to memory in order far
for our imaginations to be stimulated by them - and that
they cannot control the passions, but rather rearrange them in order to
reproduce through the imaginative passions the same results produced by
rational affects. Thus, the ffee
free man on himself
hirnself has no real need for prescrip-
tions. LeBuffe still seems to admit a kind of rational deontology capable
of restraining passive affects in Spinoza, thus disregarding the point that
an affect can only disappear and be replaced by another (more powerful
and contrary) affect (E4p7). Besides, would not such a rational deontology
toward passions revive Hume's observation about the is-ougllt
is-ought gap?
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Aquinas, Thomas. 1988. Summa Tlleologiae, Theologiae, trans. Fathers of the English
Dominican Province (New York: Sheed & & Ward).
Balibar, Etienne. 1997b. Spinoza: From Fram Individuality to Transindividuality (Delft:
Eduron).
Battisti, Giuseppa Saccaro. 1977. 'Democracy in Spinoza's unfinished Tractatus
Politicus', Journal oftlle
ofthe History of Ideas 38 (4): pp. 623-34.
ofIdeas
Belaief, Gail. 1971. Spinoza's Philosopily
Pllilosophy of Law (The Hague: Mouton).
Cicero. 1970. On the tlle Laws, ed. Clinton Walker Keyes (Cambridge: Harvard
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Courtois, Gerard. 1980. 'La loi chez Spinoza et Saint Thomas d'Aquin', Archives
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Curley, Edwin. 1969. Spinoza's Metaphysics. An essay in interpretation
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Bibliography
Tt is strange that Hans Kelsen, the most important and most coherent theorist of the problems of
It
validity and efficacy in the unity of legal systems, did not (to my knowledge) see aprecursor in
Spinoza. 2
Kelsen's
Kelsen 's silenee once in his The problem 0/
silence about Spinoza, an author the jurist mentions only onee of
sovereignty, where he is loosely associated
assoeiated with the 'monism' that Hegel would later postulate,
seems all the more unjustified as the philosopher from Amsterdam was far from being an
unknown figure within the Weimar intellectual
intelleetual world. earl Sehmitt,
Schmitt, for example, as early as
1921, in his famous work on dietatorship,
dictatorship, shows traces
traees of Spinozism that are evident in the
distinction which the Abbe de Sieyes established between constituent power and constituted
power. Schmitt indeed states:
Some years later, in a text devoted to Leviathan, the most well-known of Kelsen's critics
analyses chapters XIX and XX ofthe Tractatus Theologico-Politicus (hereafter TTP), seeing
within it the start and the source of liberal ideas, which were to sprout the seeds of the
disintegration ofthe state and, implicitly, the roots ofthe crisis which was already so evident
in the Weimar Republic. Schmitt writes:
Hobbes focused on public peace and the right ofsovereign power; individual freedom ofthought was
an implicit right open only as long as it remained private. Now it is the inverse: individual freedom
of thought is the form giving principle, the necessities of public peace as weil as the right of the
sovereign power having been transformed into mere provisos. A small intellectual switch emanating
from the nature ofJewish life accomplished, with the most simple logic and in the span ofa
of a few years,
the decisive turn in the fate ofthe leviathan. 4
It would have been difficult for Kelsen not to have been aware of any such references to
Spinoza, given that he was a lew
Jew himself, moving in Jewish
lewish circles and, above all, areader of
not just Schmitt, since Leo Strauss had also since 1924 published several
Schmitt. But it was notjust
articles on Spinoza, in Berlin and Munich journals, the first of which s5 contained a defence
of Spinoza against the somewhat violent and even ad hominem attacks which another lew, Jew,
named Hermann Cohen, had carried out some years previously. The latter, starting from the
assumption that the theses within the TTP could ultimately be explained by the fact that the
author, when young, had been expelled from the synagogue, completely reduced Spinoza's
philosophy to pantheism and formalism:
Spinoza is a scholar with new formulae: nature, necessity, natural law.... His scholasticism does
not manifest itself only in the formalism of his construction and his terminology, but directly, in an
even clearer manner, in his lack of interest in relation to the modern problem of law and the State ....
Whatever differences that might be found between Spinoza and the two English authors [Bacon and
Hobbes], in essence he clings, in matters of law, to power, in the same way that he associates laws
with induetion.
induction. He has no admiration for the English Revolution. He has no eyes for the forces
forees ofthe
people who work hard, in the underground strata ofthe life ofthe State. 6
Cohen, however, was not only a Jew, as were Kelsen and Strauss, among many that would
position themselves in the endless debate that would, for more than a century, be based within
the Jewish community around the figure and the philosophy of the 'heretic', considered by
some its greatest enemy. Cohen is also recognised as the leading light ofthe Marburg School,
the members of which advocated a 'return to Kant' which would have a decisive effect on
German phi losophy in the late nineteenth century and early twentieth century. [n
philosophy In his view, and
similar to what Kelsen would also argue later, universal, valid, knowledge only occurs when
the object of knowledge is determined by thought, since only the unity of judgement ensures
the unity of the object. 'For thought', Cohen states, 'what can only be valid as given is that
which itself
itselfis
is able to discover' .7 Because 'being does not rest in itself; rather it is thought that
It is the ground (Grund). And this does not
makes it arise'.8 Thought is therefore at the origin. [t
involve a Hegelian type of idealism, in which thought and being are identified. For Cohen,
the logic of origin is not in any way the logic of being, but only the logic of its validity, the
logic, as he himself
hirnself states, 'ofpure
'of pure consciousness'.9 Only this will enable the ambiguities in
which psychology and anthropology are steeped in to be completely avoided and by which
the apriori forms of sensibility and the categories ofthe understanding, according to Cohen,
would still be affected in the work of Kant. Hence, to apply the assumptions of this 'pure
logic' to ethics, in the light of which only the pure form appears as something objective, it
will be necessary to move away from concepts such as that of Gemeinschaft, the community,
which was theorized by Ferdinand Tönnies, defined by aseries of cultural determinations, and
replace it with the concept of Allheit, a basic totality, in order to consider not only ethics, but
also law, without the interference of any content, naturalist or other. 10
Hermann Cohen is, therefore, beyond doubt, the author to whose work the foundations
and the architecture of the Pure Theory 0/
ofthe of Law, in the final instance, refer. Cohen, however,
associates Spinoza with the pantheism and romanticism of Jacobi, which are indeed the
opposite ofthe ideal of objective knowledge that the positivism ofthe Marburg School extols
as a sine qua non condition for the survival of philosophy and its recognition as a science.
Reading Spinoza as Cohen did, it would have been impossible for Kelsen to reconsider his
I Hermann Cohen, 'Spinoza über Staat und Religion, Judentum und Christentum', Jahrbuchfür
jahrbuchfür
Geschichte und Literatur, I 8, 1915, pp. 56-151; trans. in Leo Strauss, Le Testament de Spinoza, eit.,
Literatur,18, cit.,
pp. 156-157.
I H. Cohen, Logik der reinen Erkenntnis [1904], HildesheimlNew York, Georg Olms, 1977, p. 36.
I lbidem, p. 31.
I lbidem, p. 12
10
10 About Hermann Cohen, see Andrea Poma, La filosofia critica de Hermann Cohen, Milano,
Ugo Mursia Editore, 1988; G. Paolo Cammarota, L L'idealismo
'idealismo messianico de Hermann Cohen, Napoli,
Seientifiehe Ttaliani,
Edizioni Scientifiche Italiani, 2002; Arno Münster, L 'ecole de Marbourg. Le neo-kantisme de Hermann
hhique?, Paris, Kirne, 2005; VY.AA.
Cohen vers le socialisme ethique?, Herman s Cohen Critical ldealism
VV.AA. Herman's Jdealism
(Amsterdam Studies in Critical Philosophy), Springer Verlag, 2005; Sophie Nordmann, Du singulier
aCi Il'universel.
'universeI. Essai sur la philosophie religieuse de Hemann Cohen, Paris, Vrin, 2007; Geert Edel,
Von der Vernunftkritik zur Erkenntnislogik. Die Entwicklung der theoretischen Philosophie Hermann
Cohens, Waldkirsh, Edition Gorz, 201 20 10; VY.AA. Hermann Cohen. L 'idealisme critique aux prises avec
0; VV.AA.
le materialisme, Revue de Metaphisique et de Morale, n° nD 1, lanvier
Janvier 2011.
252 Spinoza and Law
assumptions and realise that his own philosophy oflaw can be read as an echo, surely dimmed,
but still c1early
clearly noticeable, ofthe
of the philosophy ofthe
of the author ofthe [t is, however, that
of the Ethics. It
same echo, paradoxically, that would lead hirn to affirm the autonomy ofthe science of law
both with regard to religion and also ethics and, with the Pure Theory 0/ of Law, carry out the
most radical attempt ever made within logical positivism to think of legal issues.
[I will not dweil here on the detailed
detai led exposition of the concepts and arguments of Kelsen,
ofthe
among other reasons because some of them - sometimes the major ones - underwent
successive reformulations over the author's life, which were not always successful in terms
of their clarity
c1arity and consistency. [I will rather limit myself to commenting on two aspects
of his body of thought which stand out as being particularly important when projected, in
hindsight, on to the work of Spinoza. The first is the coincidence ofthe concepts of'
ofSpinoza. law' and
of 'Iaw'
'State', which goes hand in hand with the coincidence of legitimacy and legality, as weil as the
oflegitimacy
criticism ofthe classical
c1assical doctrines ofnaturallaw and sovereignty, which can be read, mutatis
mutandis, in both Kelsen and in Spinoza. The latter is the concept of 'basic norm', which is a
key element in Kelsen's science oflawof law and which, in my opinion, may shed some light on the
much-discussed expression by Spinoza una veluti mente.
11
Let us start with the State. Kelsen rejects the trivial conception of the State as a community
of wills, independent and prior to the legal order, both in its metaphysical and ethical version,
and its sociological version:
lfthe
If the theory ofthe
of the State is not to transcend the data of experience and degenerate into metaphysical
speculation, this 'collective will' or 'collective consciousness' cannot be the will or consciousness
of a being different from the human individuals belonging to the State; the term 'collective will' or
'collective consciousness' can signify only that several individuals will, feel
fee 1 or think the same way
and are united by their awareness of this common willing, feeling, thinking. 11ll
It is the case that such unity only really exists at the times when the group, by nature dispersed
and divided, actually agrees on something concrete. Assuming that all citizens of aState
may constantly think, feel and have the same wishes is obviously a 'political fiction', 12 even
fiction' ,12
if this fiction appears as a higher plane to reconcile the empirically existing natural conflict
confiict
of wills, as is the plane of Hegelian ethicallife (Sittlichkeit). Sociology would argue that this
union exists because of ofthose
those who create and sustain it, i.e. the fact that there are those who
give orders and those who obey, for the time necessary for its consolidation. However, Kelsen
argues, in society there are many orders that are obeyed and that are not associated with the
State. For example, the order that a robber gives his victim to hand over his belongings. It
is true that an order given in the name of the State, as weil weIl as the permanent domination
exercised by it, claim a different status and legitimacy, that both those who so order and those
who obey allegedly recognise. What does it mean, however, to order or to act in the name of
11 H. Kelsen, General Theory 01 Law and State [1949], New Brunswick, Transaction Publishers,
ofLaw
2006, p. 184.
12 Jbidem, p. 185.
Spinoza and Law 253
The State, therefore, is a system of prescriptive acts or those derived from prescriptions, a
system which knows ofno extemality to itself: a prescription, unlike a proposition, is neither
true nor false: it is valid or it is not valid. And it is valid if it expresses an order from a will
qualified to prescribe this. The State is not only absolutely anything beyond that systematic
unity, but also does not connect with any other order that may exist outside it and that is
necessarily
necessari Iy parallel to it, such as the moral order. There are, of course, morals, and individuals
may act in accordance with them or against them, in accordance with or against the values
they express. However, a value that belongs to the moral order is not capable of objectivity
and, therefore, cannot constitute a datum for the science of law except if it is transposed into
a legal order. Then, its validity will depend on the qualification ofthe person or body that has
assimilated it as a legally valid norm.
nonn. Indeed, it only assumes 'force of law' when it becomes
something de jure, through ajurisdictio.
As a first analysis, such an identification of power with the law could involve referral to
Hobbes and his affirmation
affinnation that it is authority and not truth that makes the law. 14 As is known,
13 Ibidem, p. 192.
Jbidem,
14 'Doctrinae quidem verae esse possunt; sed auctoritas non veritas facit legern' (T. Hobbes,
Leviathan, sive de Materia, Forma et Potestate Civitatis ecclesiasticae et civilis, Latin trans.,[1668],
in Thomas Hobbes, Opera Philosophica quae taNnelatine scripsit, ed. by G. Molesworth (1839-1845), vol.
lll, rep. London, Scientia Verlag Aalen, 1966, p. 202. In the English original [1651], the phrase arose
in different terms, although the meaning is the same: 'The interpretation of the laws of nature, in a
Commonwealth, depends not on the books of moral philosophy. The authority of writers, without the
254 Spinoza and Law
the idea of the English author is that it is sovereign power that establishes what is just and
what is unjust, thus suspending any value system prior or subsequent to the institution of
justice by itself. Seen, however, within a positivist perspective, the Hobbesian system is based
on two unacceptable failures: a failure from above and another occurring below.
From above, Hobbesianism is based on what the author c1assifies as the 'third law of
nature', that is, the obligation that men have to obey the covenants that they have entered into
with each other, since without this guarantee of obedience both the first law, which mandates
the search for peace, and the second, which stipulates the need for the covenant, would be
useless. However, basing the political and social organisation on an obligation or moral law
supposes that human beings are led by reason. And as, most of the time, this is not the case,
ofthe
the system is utopian.
Below it, its basis lies entirely on the will ofthe sovereign, since the pact has not established
any conditions or criteria to which he/she would be subject in determining what is lawful. In
other words, the multitude does not constitute power - that is, it does not provide it with a
constitution to condition it, for the simple reason that, before
be fore there was political power, the
multitude did not exist as a person and, therefore, cannot express itself in a common desire.
It is true that, if the sovereign acts rationally, he/she realises that it is also in his/her interest
to adapt the laws to the common interest of society, to ensure the security and continuity of
the State. Unfortunately there are no more guarantees that sovereigns act rationally and know
what suits them than there are citizens to do this. We are, therefore, as Schmitt will repeatedly
observe, faced with a legal order whose basis overflows the system and cannot be the object
ofa
of a true science oflaw. 15
Kelsen's project sees to remedy these two 'faults' by removing ontological autonomy from
what is sovereign and what is political. That which is called power may be summarised, in
his theory, as a transitive, horizontal and impersonal chain of acts involving the creation and
implementation of laws, which functions as a simple technique to regulate and harmonise
society. In this chain, there is certainly room for authority. However, the authority of the
legislator does not derive from any hypostasis of the common will, from an idea or from a
transcendent being, be it the people or the nation. Rather, it derives solely from the insertion
of its action within aseries of procedures, which are always formal and never legitimised
either by any possible charisma of the decision maker, or by the substantive nature of the
decision, which would allegedly place it in a higher order, as natural law advocates. In this
sense, a 'common good' does not exist, if by common good we understand a standard of
measurement by which one could evaluate legal acts. There is a law, which always emerges
from the relationship of each norm with other norms, with all ofthem of them being legitimised by
their validity, which distinguishes them from the non-legal, that which cannot be thought of
or recognised as valid by the science of law precisely because it is on the edge of all the ways
in which the simple order is constituted as law. That is the only concrete way which assurnes assumes
the common will, i.e. the State.
authority of the Commonwealth, makes not their opinions law, be they never so true'. There is an
analogous phrase in A Dialogue between a Philosopher and a Student. 0/ the Common Laws 0/
Student, 01 01England
[1681], in The English Works, ed. by W. Molesworth (1839-1845), vol. VI, rep. London, Scientia Verlag
Aalen, 1965, p. 5: 'lt is not wisdom, but authority, that makes a law'.
15 For a thorough analysis of the grounds/foundations of Hobbesian sovereignty, cf
Far cf. Christian
Lazzeri, Droit. fiberte. Spinoza critique de Hobbes, Paris, PUF, 1998, pp. 311-318.
Droit, pouvoir et liberte.
Spinoza and Law 255
Ifwe
[fwe analyse this from its character of
ofabsolute
absolute immanence, it is not difficult to see an echo
ofthe Spinozian imperium in the Keynesian state. From the beginning ofthe TP, politics is
presented as an instance disconnected both from utopia, in which human nature would be
constrained by the dictates of duty and reason, and from the art of goveming,
governing, in which it
would be dependent on the virtues ofthe prince and the multitude-controlling techniques of
the powerful. 16 Neither morality nor empiricism: just realism. It [t is true that human beings,
wherever they live, 'cannot live without some common law'. But ifthat common law, Spinoza
adds, is dependent on the qualities or skills of the rulers, it soon ceases to have anything to
do with the common, and becomes something to be seized by only some and, in this way, it
advances towards its own ruin:
So if the safety of aState is dependent on some man 's good faith, and its affairs cannot be properly
administrated unless those responsible for them are willing to act in good faith, that state will lack all
stability. Ifit is to endure, its government must be so organised that its ministers cannot be induced to
betray their trust or to act basely, whether they are guided by reason or by passion.
passionY17
Hence the importance that the question ofthe condition ofthe imperium, or form ofthe State,
acquires. To ensure the survival of a city, or State, it is necessary that it determines what the
nature of
ofpower
power is, which are the rules for sovereign decisions, rather than it being the rulers
that determine this. [fwe
Ifwe compare this with others, where there is less corruption, this comes
from the fact that the city does not provide enough for concord, nor establishes rights with
sufficient prudence. 18 And it is not worth overthrowing tyrants ififthe
the causes of
oftyranny
tyranny are not
eliminated. 19 [n
In short, power cannot be thought of, in the Hobbesian manner, as if it were an
element external
extemal to the aggregate, with the ability to absolutely determine the nature ofright
and wrong, i.e. law. This is also c1early
clearly stated at the start of Chapter VII ofthe
of the TP, in clear
c1ear
refutation ofthe ideas expressed in Leviathan:
And there are no cases, as far as I know, of a monarch being chosen on absolute terms without any
explicit conditions. Nor indeed is this in contradiction with reason or with the absolute obedience due
to the king. For the fundamentallaws ofthe State should be regarded as the king's eternal decrees, so
that his ministers are entirely obedient in refusing to execute his orders if he commands something
that is opposed to the fundamentallaws ofthe State. 20
There is therefore a virtuous disobedience, which the author compares to the disobedience
of Ulysses' comrades, who spared hirn from the sirens' enchantment by remaining faithful
to the orders he had given them when he had requested them to bind hirn to the mast ofthe of the
ship, and not listen to hirn when he demanded that they untie hirn. A virtue that is legitimised
by virtue of its intrinsic quality is not a virtue that transcends the law. [n
In other words, this
disobedience does not extract its legitimacy from any order extern
extemal
al to law - such as the moral
order, for example, or any kind of pragmatism - on behalf of which one could suspend the
16 TlI and 2.
See TP 1/1
17
17 TP 116, in Spinoza, Political Treatise, translated by Samuel Shirley, lndianapolis/Cambridge,
Indianapolis/Cambridge,
Hackett Publishing Company, Inc.,
lnc., 2000.
1&
18 See TP V/2.
V/2.
19 See TP V/7.
20 VIIII.
TP VTT/l.
256 Spinoza and Law
legal order in the same way that the Schmittian sovereign does when he decides to rule under
emergency powers in the name ofvalues that have subjectively been considered superior. The
disobedience to the sovereign to which Spinoza refers in this text is legitimised only by the
so-called
so-ca lied 'eternal decrees ofthe king' or the ground (jundamentallaws) ofthe State, which,
from a logical point ofview precedes the creation ofnorms. It is only to that extent that one
can speak ofofaa constraint on the will ofthe monarch, because his/her orders, ifthey cannot be
deduced from the ground ofthe State, are legally void and therefore putting them into practice
would require the use offorce against the power ofthe multitude.
On first reading, we may be led to thinking that Spinoza, in admitting that there may be
virtue in disobeying the norms ofthe sovereign, has re-established the traditional naturallaw
and restored the asymmetry between legitimacy and legality that Hobbes sought to eliminate.
It is however difficult to understand such areturn to natural law in an author who, at least
in this regard, reconsidered Chapter XV of The Prince, where Machiavelli protested against
those who in politics forget what human beings really are and just look at what they should
be. It therefore becomes necessary to determine the nature ofthe aforementioned 'grounds of
the State', which appear in the TP as ifthey were a normative element superior to the monarch
him/herself, but which the metaphysics of ofthe
the author prevents them from being confused with
transcendent principles in the same way that his realism prevents them from being considered
as ethical values. We have seen that, in some way, they delimit the field of
ofaction
action ofthe rulers,
prefiguring what the French Revolution would later enshrine as the State constitution, albeit
not expressed within a positive legal framework. 21 In carrying out such delimitation and in
establishing, so to speak, the imperium, they indeed represent a restriction on the ever-present
hypothesis that power acts according to personal arbitrariness, against that counselled by
reason and which would best preserve the State. As such, the degree of suitability of the
imperii status will be greater in proportion to the degree of impersonality that it induces in the
ofimpersonality
sovereign power along with the subsequent reduction in absurd hypotheses. In summary, the
State will be better in proportion to the quality ofthe
of the legal structure on which it is based and
will depend much less on the quality or individual ingenuity of each of its rulers.
It must, however, be asked: on which principle is this architecture based, or, rather, on what
are the foundations of the State grounded? From whence comes this form of supremacy over
the will ofthe monarch and ofthe rulers?
21 Some translators do not hesitate in translating the expression 'optima statu imperii' (TP V/I)
stahl imperir V/l)
as 'the best constitution of the State', which is undoubtedly a manifest anachronism, given that the
meaning of constitution which was generalised in the 18th century, as a set ofpositive norms which form
ofconstitution
the basis ofthe pyramid of ofall
all positive norms in force, does not appear in Spinoza: cf. the translations of
Lelia Pezillo (Rome-Bari, Laterza, 1995) and of Atilano Dominguez (Alianza Editorial, 2004). At other
times, the expression is translated as 'the best regime', which does not seem suitable if we consider the
ifwe
context and the simply descriptive method Spinoza uses to present the traditional three regimes: see
the translations of Charles Ramond (Paris, PUF, 2005), and Emile Saisset (Paris, Le Livre de Poche,
2002), recently revised by Laurent Bove, who replaced 'constitution' with 'condition', undoubtedly
more faithful to status and perhaps even closer to the language of our days than the term 'situation',
through which I have preferred to translate (Lisbon, Temas e Debates, 2008). Similarly, Samuel Shirley
translates it as 'the best way' (Indianapolis,
(Tndianapolis, Hackett Publishing Company, 2000) and Omero Proietti, by
'condizione' (Opere, Milano, Mondadori, 2007), while Wolfgang Bartuschat opts for 'Form' (Politischer
Traktat, Hamburg, Felix Meiner Verlag, 20 20110).
0).
Spinoza and Law 257
I will return to this aspect in the following section. First, however, it is worth recalling
here the key aspects of Spinoza's concept of what is legal, namely, the equivalence between
the common law and the power of the multitude. 22 Common law is the result of joining
together several individual rights, with the right of each one extending as far as its power
extends, which is the same as stating that it is its ability to ensure for itself survival and
well-being, and to free itself from subjection to others, achieving this through esse sui juris:
of one's own right. 1fthis union is carried out in strictly rational terms, common law would
be equal to the arithmetic sum ofthe associated powers. But the union is carried out both for
rational reasons and for affective reasons, so the group is internally crossed by dynamics that
sometimes reinforce its power and, therefore, the legal aspect, which sometimes reduce this.
It can certainly be asked how any stability is possible in such a union, given the emotional
instability ofthe
of the individuals who make up the group and because oftheof the constant fluctuation
of contradictory emotions. Hobbes, as is known, saw it as impossible that such a junction,
by itself, could become a common power. To achieve power and common law the author of
Leviathan considers that it is first necessary to undo all the outlines of natural aggregation,
his/her singularity.23 Only
which are such other hotbeds ofwar, and reduce each individual to hislher
then can they acquiesce to a sovereign, based on the authority hypothetically agreed upon
by the subjects, which gives the multitude the artificial unity of a common will, a law and
a commonwealth. But for Spinoza, the question of the genesis of the State is superfluous,
superfiuous,
because 'men by nature aspire to the civil state; nor can it happen that men should ever utterly
dissolve it' .24 The hypothesis ofthe state ofnature, which would be equivalent to the complete
absence of a common law, is against all experience, just as the symmetrical hypothesis - a
civil state in which the law was the integral expression of that determined by reason - is
nothing but aachimera.
chimera. Consequently, the basis for common law must be sought, first of all, in
what Spinoza calls 'common affections'.
In fact, men unite their efforts, whether through fear, through ambition or through desire for
revenge, and this union, fuelled by the imitation of affects, gives birth to customs, customary
rights, shared languages and symbols - in a word, institutions. Institutions counteract the on-
going fluid movement of ofthe
the affections. They are a kind of 'precipitated' blood clots, to use
a phrase from Chemistry, within the power oftheof the multitude. Through these, common affects
are stabilised and an order of collective power is introduced to the extent that associations
resulting from the imitation of affects take on consistent forms, which become normal and
the activity of rulers and ruled becomes less unpredictable. Being, however, formed in the
mortar of the affects, institutions mayaiso crystallize 'sad passions' and, as such, reduce
individual power instead of contributing to the freedom of each individual, which is the reason
to be a republic. In forming a second nature, institutions can indeed stabilize submission and
alienation itself, producing phenomena that contradict rationality, as that which Rousseau
would denounce as 'slaves by nature' and which are men that no longer identify themselves
as free beings. Conversely, when 'joyful passions' are crystallised in the institutions, people
22 TIT/9.
TP ITI/9.
23 This aspect is particularly highlighted in Roberto Esposito, Communitas. Origine e destino delta
della
communitiI, Torino, Einaudi, 2006, cap. 1.
communita,
24 VIII.
TP VT/I.
258 Spinoza and Law
preserve the 'memory of their ancient liberty', which 'cannot let them rest', as Machiavelli
says, while submitted by force to someone who has conquered them. 25
Additionally, institutions, while contradicting, do not eliminate individual spontaneity, that
reserve ofinteriomess that is beyond the reach ofpower and its norms, as Spinoza mentions at
the beginning ofChapter XVII ofthe TTP. Although based on what is common, the State does
not erase dissent and conflict, such that the power ofthe multitude, regardless of its level, is
ofits
always an algebraic sum which may show different configurations. It [t may either converge to a
single power, or be dispersed into a greater or lesser number ofindividuals
of individuals and institutions, or
even be possessed by all those who are citizens. [n In any case, the ability to decide and command
abilityto
will be in the hands of a group distinct from those from whom obedience is required. And as
each of these groups will tend to raise its respective power to the maximum, this creates the
situation so weil characterized by Machiavelli: those who rule tend to rule ever more, that is,
obtain for their advantage all common power, and those who obey tend to free themselves, as
much as they can, from the other's command.
Such tension never ends, since it is intrinsic to the power of the multitude. On the one
hand, this presents itself as potestas, that is, as a govemment - monarchical, aristocratic
or democratic; secondly, it remains somewhat residual in individuals, in customs and in
groups, whether by way of opinion and critical judgment, or even as possible resistance, thus
determining and conditioning the meaning of the decisions of the same potestas. 26 Against
the resistance ofthe multitude, power will seek to deceive it or dominate it by force; against
the arbitrariness ofpower and its willingness to increase its power, at the expense ofreducing
the power (potentia) of the subjects, the latter will, by their capacity to be outraged, become
feared in the somewhat short term. It [t is in so far as this frightens those who order that the
multitude obtains 'some freedom for itself, which it claims and maintains, if not explicitly
within the law, at least tacitly'. 27 Furthermore, it is for this reason that both monarchical and
tacitly'.27
aristocratic govemment are never 'completely absolute'. In [n both of them there is a vertical
asymmetry between the statute of power and the status of
ofpower the subjects, due to the unfolding
ofthe
ofthe
of the power ofthe
of the multitude into law-making potestas and the resistance ofthose of those who are
subject to it, which is represented in the imagination as a lack of adjustment between legality
and legitimacy. From this come the successive displacements from the point of equilibrium
ofthe
of the power ofthe
of the multitude. It is the case that both the rulers and the ruled are moved by
affections and interests. And to resist the potentially destructive effects of the tension that
is thus established, it is necessary that the ground of the State is the c10sestclosest to reason, not a
substantive reason abstracted from reality, but a ratio-proportion, from a combination ofbasic
norms which, from the concrete situation ofthe of the State - for example, its size, demographics,
wealth, etc. - give rise to a legal order that has to do with the interests ofthe of the rulers and also
the satisfaction ofthe interests ofthe ruled, in a form ofhomage that vi ce pays to virtue:
vice
25See The Prince, chap. V, trans. George BuH, London, Penguin Books, 1981, p. 49.
26Regarding this circuit, in elliptical reality, of the power of the crowd between potestas and
(in)jinitude, Paris, L'Harmmatan, 2008, pp,
resistance, see Andre Tosel, Spinoza ou I 'autre {in)finitude, pp. 257-260,
257-260.
27 TP VTI/4
VIT/4
Spinoza and Law 259
Tt is necessary to lay solid foundations ... from which may result to the monarch safety, and to the
It
multitude peace, in such a way, that the monarch may then be most independent, when he most
consults the multitude's welfare. 28
And what is stated ofthe monarch applies also to the assemblies in which the form ofthe State
endows the ability to act.
Democracy, however, is a 'totally absolute' State. [n In it, the legal order incorporates, with
nothing remaining, the power of the multitude, such that there legality and legitimacy are
represented completely coincidentally, exactly as is the case with the normative order of
Kelsen. The way that it will, according to Spinoza's understanding, take on the legislative
process in the democratic State is undoubtedly a mystery, given the additional fact that the
TP remained unfinished. It [t may even be assumed that there is no solution to the problem;29 or
that Spinozian democracy, paradoxically, would only be possible in the absence of any form
of State30 or, furthermore, that in the light of reason its ground cannot be considered except
incompletely, and that, consequently, rather than the being of democracy, what is of import is
the doing of democracy. There is, however, a difficulty. A process is not aState, and Spinoza
refers to democracy as 'the totally absolute State'.
As democracy is a type of State, it will also have its ground. But, contrary to some
interpretations that claim that it would be possible to extract the ground of democracy just
from Spinoza's work, and as such the incompleteness of the TP would be irrelevant, it is
necessary to pay attention to what Spinoza says in chapter [V IV ofthis treatise:
Now the fundamental rules ofaof a city are not universal principles ofreason, but the structuring
principles ofthe affections which are common to its inhabitants. To imagine a common law in
the abstract, a transcendent justice for the city, would be to fall into the illusion of legitimacy
outside of legality, which, in the Spinozian democracy, as in Kelsen's science of law,32 is
equivalent to fabrication.
Must we then conclude that there is an intrinsic ambiguity to the democratic State itself?
[n
In legal terms, as there is no remaining extern
extemalal power to condition or make it fearful, a
common democratic law is thus equivalent to an unlimited absolute power. The truth is that,
28 TP VT/8
TPVI/8
29 See Etienne Balibar, Spinoza et la politique, Paris, PUF, 1985, p. 90; Alexandre Matheron,
'L'indignation et le conatus spinoziste', in Myriam Revault d' Allones et Hadi Rizk, Spinoza: Puissance
et Ontologie, Paris, Kirne, 1994, pp. 153-165 (esp. p. 64).
30 See Warren Montag, Bodies, Masses, Power. Spinoza and His Contemporaries. London, New
Verso, 1999, pp. 84-85.
31 TP IV/
lVI 4.
32 Hayek criticises Kelsen, precisely in that the latter ignores the fact that 'the mIes
rules of
ofjust
just conduct
can lead to the formation of a spontaneous order', concluding that 'Positivism has, for this reason, tried
rules ofjust conduct and the rules of organization, and has insisted
to obliterate the distinction between mIes
that ... the conception ofjustice has nothing to do with determining what the law is'. Friedrich Hayek,
Law, Legislation and Liberty, Vol. 2, The mirage 0/ social justice, London and NewYork, Routledge,
1982, pp. 46-47.
260 Spinoza and Law
in ontological terms,
tenns, this common law is confronted with the nature of the multitude itself,
where there are individual or group feelings that tend to prevail over common affections. By
definition, the multitude is disobedient to an entity such as that represented by the Hobbesian
sovereign, or as the general will of Rousseau, and preserves the diversity of individual
'devices' as weil as its singularity, which is defined as a permanent
pennanent process ofofresistance
resistance to
any outside jurisdiction. As Negri wishes,
Even if it is elusive, the multitudo is thus a juridical subject, a necessary attribution of the social,
a hypothesis of political unity and constructiveness (TP 3/7). But at the same time the multitude
remains an elusive set of singularities. This is the crucial paradox - the one formed between the
physical multiple, elusive nature ofthe multitudo and its subjective, juridical nature that creates right
unresolvable. 33
and constitution. This relationship is unresolvable?3
III
As previously stated, a problem persists both for Spinoza and for Kelsen. That is: what is the
ground ofthe grounds ofthe city, or its constitution? What makes the city, or State, be a city,
with its own identity, and not a vague set of rules, as everything would indicate, taking into
account its empirical nature and the need for its laws to regulate its passions? It has been seen
how sovereignty of the Hobbesian type is refused, being based on the legal-political body
in the passionality of a person external to the multitude. Against such a solution, Spinoza
invokes not the transcendence of ajustice
a j ustice defined at the level of
ofrationality
rationality in the abstract but
the establishment of a system of rules and rights that takes the power of individual conatus and
combines them into common affections and crystallizes them in institutions, through which
obedience goes hand in hand with the extension of individual freedom. However, this erasure
of transcendence, this descent of the sovereign body to the common ground of immanence,
where the affections intersect and intertwine, does not deal fully with the problem of the
ground of sovereignty. The reason is that, whether individually or collectively, relatively or
absolutely, sovereignty, as the power to dictate what others may mayor or may not do, presupposes a
ground, a reason that justifies it in the light of
thatjustifies reason. It can always be alleged that this ground
ofreason.
is empirical and only resides in the force that was at its origin. In this case, however, this
would be to abandon the question of the law, with the norms placed at the level of the facts
and the problem of the ground reduced to the history of
ofthe the grounding. 34 To think of a system
ofthe
33 Antonio Negri, 'Reliqua desiderantur: a conjecture for adefinition ofthe concept of democracy
in the final Spinoza', in Subversive Spinoza,
Spinoza. Manchester University Press, 2004, p. 40.
34
34 IT employ here F. Gil's terminology, which reformulates the problem in radically original terms,
showing how sovereignty, as it is stated by Bodin and Schmitt, is grounded on itself,
itselt: as the first principles
Spinoza and Law 261
of
ofrules
rules as common law implies asking for the source of ofthat
that law. And it does not suffice to
state that in Spinoza this source is the power ofthe multitude.
Indeed, it is impossible to state that the multitude is the source of the law by which it
governs
govems itself, without presupposing a conceptual distinction between the multitude which
is governed
govemed and the multitude issuing the rules, even ifthe if the larter
latter is only logically prior and
c1early states the problem in The Social
distinct. Rousseau clearly Sodal Contract (Sook(Book I, chap. V), when
he asks how a people constitutes itself as a people, responding that it is necessary to presuppose
a logically prior unanimity whereby everyone agrees to and legitimises subsequent rules,
starting with the rule that consecrates majority decisions as common will.
To imagine that Spinoza's realism ignores the problem would, at the least, be hasty.
We can leaf through the TTP and consider the headings for Chapters XIV, XV and XVI,
respectively, in which we find the following expressions: 'the grounds of faith (jundamenta
jidei)';
fidei)'; 'Why we are convinced ofthe authority of ofHoly
Holy Scripture'; 'the grounds ofthe State'
(de reipublicae fundamentis). Apart from a certain sequence, which is important in itself,
in particular in terms of the transition from religious authority to civil authority, it is also
equally important that the issue dealt with in the three chapters is always the same, namely,
the question of obedience. In Chapter XIV, the author concludes that 'faith requires not so
much true dogmas as pious dogmas, that is, such as move the heart to obedience; and it is
so, even ifmany ofthose beliefs contain not a shadow oftruth'.35 In Chapter XV, he states
that the main tenet of theology is that 'men may be saved simply by obedience', and that
'reason cannot demonstrate the truth or falsity of this fundamental principle', therefore 'it
was essential that there should be revelation', which is why 'we can use judgement to accept
with, at least, moral certainty that which has been revealed' .36 .36 Finally, in Chapter XVI, he sets
out the grounds of democracy in more or less Hobbesian terms, deduced from the hypothesis
ofthe
of the contract and the subsequent 'Iegitimate will' of ofthe
the sovereign powers. Not even the
commonly labe lied 'divine law' constrains the sovereign to obey it, given that it depends upon
a revelation, and does not integrate, and therefore includes neither civil law, which depends
entirely on itself, nor natural law, which depends on 'God's eternal etemal decree, which is beyond
our knowledge'.37In
knowledge'.37 In short, the authority is founded on moral certainties, as are all certainties
regarding practicallife
practical life and the common good. Furthermore, in anticipation ofwhat would be
the doctrine ofthe TP and the definitive break with Hobbesianism, Spinoza states in the TTP
that the sovereign only retains the right to be obeyed while maintaining the power of carrying
into execution whatever he wills. 38 38 That is, politics does not interrupt the flow
f10w ofnature, but is
rather its extension, as stated in letter 50.
Nevertheless, Spinoza speaks of States, describing in more or less detail the different
configurations ofofpower,
power, which are effective as the common law of a multitude leading itself
una veluti mente, that is, as if by one single mind. An idealist interpretation might be tempted
to see here a subjectivisation of the multitude, such that, by presenting itself as an infinity of
ofthe
focuses ofresistance to the capture ofthe potestas by individual interests, it would manage to
determine the common law in a truly democratic way and thus produce harmony and peace.
However, human nature never abandons the passionateness that constitutes each one of its
modes. Moreover, Spinoza does not endow democracy with the designation of 'multitude
which is guided, as it were, by one mind'. The right of the state of nature is always natural
right that 'is determined by the power, not of every individual, but of the multitude, which
is guided, as it were, by one mind' .39 The question, therefore, is how to think ofthis
of this unit that
subsumes
subsurnes not only the natural conflict of passions, but also the division produced by each
ofthe
of the regulatory acts, between those in agreement with the norm and those who are simply
required to do so? Put simply, what is the status of that one mind which ultimately always
leads to the decision-making process? Stating the question ofthe basis ofthe law in Spinoza is
to deliberately approach the issue using the terms in which Kelsen formulates it. As is known,
the validity of a norm or regulatory act, according to Kelsen, always depends on a previous
norm, and so on, in a regressive process - from established norm to establishing norm - which
goes back to the state Constitution, which is, in turn, nothing but a set of
ofpositive
positive norms. Hence
the well-known problem of legal positivism: ifthe validity ofnorms is based on norms, and
so on until the constitutional norms, on what is the legitimacy of constitutional norms based?
As is the case with Spinoza, Kelsen also excludes recourse to any kind of transcendence,
assuming a deeply democratic relativism that leaves law hovering over the strict absence of
truth. 40 The Constitution does not, therefore, emanate from any superior authority, religious
or ethical, to seal its validity: both the idea of God and his commandments, as weil as the
idea of justice, are forbidden in the science of law, due to an obvious lack of objectivity. So
little does the so-called
so-ca lied popular will, or general interest, which in modernity
modemity assumes
assurnes the
status of sovereign will and resembles a kind of 'amplified ego' that escapes the clutchesc1utches of
subjectivity and ideology, which makes it unfit for the science of law. All norms - that is, the
State, its law and its activity - are valid and, therefore, legitimate, ifthey conform to legality,
i.e. ifthe previous norms expressly state their legality. And yet the constitutional norms are
prescriptive by definition. Prescriptions from whom? From which principles? Historically
and sociologically, the answer to this question leads, at least since Sieyes and the French
Revolution, to the constituent power of the people, or to a first constitution. However, the
people, as the subject ofa
of a legislative will, is in the eyes ofKelsen hardly any less objective than
any other metaphysical entity. And as a first constitution, this raises exactly the same problem,
because whenever we encounter a normative source that is self-poietic, its validity is without
ground. Faced with such questions, Kelsen recognizes the need to resort to a Grundnorm, or
basic norm. However, both the meaning and the application ofthis concept have been shown
to be problematic, as demonstrated, inclusively, by the successive oscillations that take place
throughout the work ofthe author himself.
hirnself.
While this is not the place for an exhaustive analysis of the Grundnorm and its various
formulations by Kelsen, it should however be noted that it is presented and is required by the
TP lll/ 2.
39
See Giacomo Marramao, Potere e secuZarizzazione. Le categorie deZ tempo, Torino, Bollati
40
system to be a simple epistemological operator, without any correspondence outside the legal
system, to which it is immanent. 41 As Simone Goyard-Fabre noted, it is trans-positive because
it does not have any content or expression in any positive norm, beside the transcendental,
but neither is it metaphysical nor transcendent. Kelsen therefore awards it, in the Pure Theory
0/
of Law, the status of a 'Iogical-transcendental' hypothesis that must be assumed, thereby
showing, once again, the neo-Kantian influence of Hermann Cohen.
Kant asks: "How is it possible to interpret without a metaphysical hypothesis, the facts perceived by
our senses, in the laws ofnature
of nature formulated by natural scienceT'
science?" In the same way, The Pure Theory
ofLaw
of Law asks: "How is it possible to interpret without recourse to meta-legal authorities, like God or
nature, the subjective meaning of certain facts as a system of objectively valid legal norms describable
ofcertain
in mIes
rules of law?" The epistemological answer of the Pure Theory of Law is: "By presupposing the
basic norm that one ought to behave as a constitution prescribes, that is, one ought to behave in
accordance with the subjective meaning of the constitution-creating act of will - according to the
prescriptions ofthe authority creating the constitution. 42
The basic norm is, therefore, empty. It [t does not reflect any subjective will that is objectified
as law, as a positive norm, and appears only as amental requirement in order to scientifically
enable knowledge of a set of subjective determinations - orders given by someone specific
- which is considered as a legal order in a particular territory. lustJust like the categories of the
understanding in the Critique 0/ of Pure Reason, which determine the laws of nature, being the
condition enabling knowledge of them, the Grundnorm determines legal norms. Without it,
the validity or objectivity ofthese would be irreparably compromised, and the whole science
of law would collapse due to a lack of basis, as weil as the subsequent absence of a limit that
would make it impervious to subjective representations ofwhat is just. It [t is, therefore, abasie
norm that establishes the Constitution, in setting down that what is lawful is only that which
is in accordance with the Constitution.
It may be asked - and Kelsen would ask himselfthis
himseifthis for more than half a century - to what
extent the Grundnorm is actually a norm, when it not only does not come from any act ofwill,
but also, and mainly, its validity cannot be based on any higher norm, with its nature therefore
contradictory and its status hypothetical: if, and only if, it is presumed valid will the 'pyramid'
of norms of which it forms the top also be valid. Such a difficulty would lead Kelsen to
waver as regards the status ofthe basic norm, which in the Pure Theory 0/ of Law emerges as a
'Iogical-transcendental hypothesis' , but which in other writings, both prior and subsequent,
particularly in the posthumously published Allgemeine Theorie der Normen, it is interpreted
as a 'heuristic fiction', a designation from Kant that Hans Vaihinger comments on and, to a
certain extent, explores in Die Philosophie des Als-ob. It [t is indeed in the work of Kant that
the term 'hypothesis' appears restricted to the cases in which the imagination conjectures, or
contends, based on the possibility of the object about which it conjectures: 'Once this (the
possibility ofthe object itselt) is given, it is then permissible, as far as it actually is concemed,
to have recourse to opinion; this opinion, however, if it is not to be utterly groundless, must
be brought into connection with what is actually given and therefore certain, namely, as the
ground of its explanation. In this case it is called hypothesis' . On the other hand, the concepts
of reason, since 'they have no object corresponding to them in experience' - the idea of
the soul as a simple substance, or the idea of God - 'they are thought only problematically,
in order that they (as heuristic fictions) supply the ground for regulative principles of the
systematic use ofthe understanding in the field of experience. Ifit were otherwise, they would
become mere fictions the possibility ofwhich is quite indemonstrable, and which, therefore,
can never be used as hypotheses for the explanation of actual appearances' .43
The Kantian distinction between the 'heuristic fictions' ofreason - simple regulatory ideas
that do not allow any actual knowledge - and the 'hypotheses' with which science works is
particularly commented on by Vaihinger in the chapter entitled 'What is essential in Kant's
major works' ,44 which explicitly inspired Kelsen when affirming in the Theory ofNorms that:
The aim ofthe idea ofthe basic norm is to ground the validity ofthe norms which belong to a positive
moral or juridical order ... This aim cannot be achieved without appealing to a fiction. Therefore we
must see that the basic norm is not a hypothesis - as T
I sometimes termed it - but a fiction, according to
the sense ofthis word in Vaihinger's philosophy ofthe 'as if'. A fiction is distinct from a hypothesis,
because the former is, or should be, followed by the awareness ofofits
its being different from reality.45
In accordance with such an interpretation, not only would the Grundnorm be without an
object - in fact, there are no norms that are not a consequence of a will that imposes them -
but also, moreover, it would not be possible, insofar as its definition is contradictory - there is
no norm that is not the consequence of another norm. We would therefore be presented with a
'pure fiction' in the sense that Vaihinger attaches to such a designation: 'Ideational constructs
are in the strictest sense of the term real fictions when they are not only in contradiction
with reality but self-contradictory in themselves; the concept ofthe atom, for example, ofthe
"Ding an sich'" .46
To understand the shift thus carried out in the science of law, Kelsen
Kelsen's
's distinction between
propositions and legal standards should be taken into account. A proposition is always true
or false, and if it is true, those that can be inferred from it are also true. And a norm, in turn,
is neither true nor false, but is only valid or invalid. However, to the extent that it deals
with propositions, the science of law is always necessarily descriptive, with no possibility of
making value judgments. But unlike the experimental sciences, its aim is not beings in the
immediate sense, but what should-be such as is embodied in the various legal systems. Thus,
for a proposition which states, for example, that the law of a particular country prohibits traffic
from travelling on its roads at more than 90 miles per hour, we can say that it is objectively
or also that of 'popular will', allegedly expressed by the legislative activity ofthe
of the Parliament.
Notions such as this, in the eyes ofthe author ofthe Pure Theory of Law, emerge as permeated
olLaw,
by metaphysics, if not mysticism, and are often dubbed 'primitive' and therefore unsuitable
for a true science of law. To assign the basic norm the status of 'heuristic fiction' inserts an
anomaly in the doctrine, which is not only unjustified but above all inconsistent with the
Kelsenian formulation ofpositivism.
Would, at the least, the conceptualisation ofofthe
the basic norm as 'fiction' be in accordance
with the Kantian doctrine of ofmethod
method and, therefore, underpinned by critical bases? As Kant
says, in the Critique 01
of Pure Reason,
A transcendental
tran seen dental hypothesis, in which
whieh a mere idea of reason is used for the explanation of natural
things, would therefore be no explanation at all; for it will really be an attempt at explaining what,
according
aeeording to known empirical
empirieal principles,
prineiples, we do not understand suffieiently
sufficiently by means of something
which
whieh we do not und erstand at all.
understand al1. 47
[t turns out, however, that the object of the science of law is not a 'natural thing'. Far from
It
being understood based on 'empirical principles', the architecture of its propositions must be
of the Grundnorm
based entirely on principles applied by reason itself. Thus, the definition ofthe
as fiction, inspired by the pragmatism which Vaihinger borrows from the critical philosophy
of Kant, proves to be not only insufficient to support the pyramid ofnorms
of norms but also to even
undertake the development of a true science of law pursuant to the requirements set out by
Kelsen. [ndeed,
Indeed, positivism in the Kelsenian version is removed from its empiricist versions,
frequent in the second half ofthe nineteenth century, in raising the notion of scientific object
to a maximally refined dimension, which uses a mathematical model and which, although
inspired by Kant, sees itself above all in Platonism. This is the version that Hermann Cohen
echoed, to distance hirnself from what he considered to be the remnants of psychologism in
the Critique 01of Pure Reason, in radically affirming: 'That it is lawful or possible to give to
thought anything that does not stern from thought itself is amistake, fuelled by prejudice
inherent in the word data. '48
[n
In keeping with such aversion of positivism, the Grundnorm does not seem to be consistent
ofpositivism,
with the 'fiction' of a will, which at the outset is known to be contradictory, but which the
science utilises as an extension ofthe
of the thinkable and a prosthetic device for the imagination.
[n
In some way, the operating device of the system unit would become an analogue of the
Hobbesian Feigned or Artificial Person, and the State unit would be subject to a singular and
absolute configuration, all contrary to the objectivity of the legal system and, further, to the
pluralism that is essential in democracy. The only way to conceive ofthe Grundnorm in a way
that does not invalidate Kelsen's thinking is, indeed, that which he himselfuses in most ofhis
works, particularly in the two editions of the Pure Theory 01
ofthe of Law, in which he presents it as
a 'transcendental hypothesis' . As a hypothesis, although not verifiable and therefore different
from the hypotheses of experimental science, it removes the possibility of an absolute version
ofthe 'only one', and thus limits itselfto conditionally stating the validity ofthe Constitution:
if one assurnes that such statements validate the laws that validate the other norms, then the
Constitution will be valid. But in saying that the Grundnorm validates the Constitution does
not mean that it contains a transcendent reason to obey it, which would be inconsistent with its
empty nature, and would lead to the dilution ofits of its positivism into naturallaw presuppositions.
As a 'transcendental hypothesis' , the Grundnorm only affirms that the Constitution is valid if
taken as valid, that is, if a population assurnes
assumes it as the grounds for the validity of its laws and
other norms. An isolated norm does not have to be effective to be valid. It [t may even be the
case, as we have seen, that nobody respects it, without its validity being called into question.
A legal system, however, if it is not effective, is nothing but a simple project, or a document
from the past.
[n
In fact, the law is also projected at the historical level, and reveals itself, among other
aspects, in the form of an empirically verifiable 'social fact'. Such knowledge is foreign to
the science of law in the strict sense, whose purpose is solely its norms, the field of Sollen, or
the pure ought. [t It is, moreover, for this same reason that, while it is true that the Constitution
is only valid ifif it is effective, it is not valid because it is effective, since, as it is a norm or
a set of norms, it cannot be based on an empirical datum, as would be the consent, whether
explicit or implicit, ofthose whose obedience confirms the effectiveness ofthe legal system.
No fact can explain why a particular subjective conception ofwhat should be has acquired the
objectivity of a legal norm. And therein lies the importance of the Grundnorm. Different in
nature from the other norms because it does not contain content nor is it 'placed' or made real
through will, the Grundnorm operates only, given its character of 'transcendental hypothesis'
hypothesis ",
as an epistemological presupposition ofthe scientific knowledge of a legal system. This does
not mean that it is an antecedent or higher source of the system of positive norms, as some
interpretations have sometimes tended to present it. Strictly speaking, it does not precede,
it is revealed, is present and is discovered in each of the stages involved in the creation of
norms, the scientific knowledge ofwhich is presupposed at the logicallevel. Passage from the
Constitution to the Grundnorm does not occur at the genealogical, but at the critical, level.
[f,
If, on the one hand, the basic norm enables the science of law to be purged from all meta-
legal ormetaphysical
or metaphysical authority, on the other hand, it isolates it from any empirical or subjective
contamination, ensuring for its objects the epistemological purity that a science so requires.
There is no source of legitimacy beyond that of legality; there is no law except for that which
is laid down bybyaaseries
series ofprocedures provided for in the Constitution. The legal order, which
is the same as saying the State, can only be but self-referential, since this unfolds entirely
within the enacting terms determined by the basic norm, and is based on the assumption
that the laws and norms are valid which the constitution authorises to be considered as such.
The unity ofthe
of the system is processed in its immanence, not because the former translates its
material element - its 'meat' in the sense that the Hegelian State embodies ethicallife - or its
soul- the Volksgeist, ofwhich Herder, Savigny and many others spoke - but because it is the
formality of the legal system that determines the validity of its own norms, in determining,
based on the Constitution, which are the authorities with the ability or competence, as weil
as the procedures to be complied with, so that they are integrated within the same system.
Undoubtedly, this validity supposes the overall effectiveness of the system, that is, consent
by agreement or by fear of punishment. But there are effective orders that are not laws, as
demonstrated by any mafia organisation. The law, or State, requires the objectivity of its
norms, i.e. its formal validity, whose ultimate ground goes back to the Constitution and the
norm according to which the Constitution is a valid norm. [n In Spinozian terms, one would
say that society organises itself as if it were from a single norm, with it being the case that
268 Spinoza and Law
this same as if, or veluti, confers unity and reality on the State, as a body of norms that self-
regulates itself.
Similarly to that which happens in the work of Spinoza, the Kelsian state does not have an
extern al element which, moreover, inhibits the usual distinction between rule of law and other
types of
ofState. [ndeed, the State does not exist if
State. Indeed, ifthere
there is no law, and there is no law without a
principle which grounds the norms. [ndeed,
Indeed, from the point ofview ofknowledge, this principle
is purely formal, or relational, and does not mean any essence or value from which the content
of what is to be prescribed would be inferred. In [n the final instance, the multitude as a civil
state is the hostage
ho stage of a hypothesis, the hypothesis that its power translates into a particular
legal system, which works if, and so long as, such a hypothesis is recognised. It [t is true that the
power ofthe multitude emerges in the imagination of each one completely transfigured. While
in the state of nature it was confused by a multiplicity of individuals interacting in multiple
ways, establishing relations among themselves involving a greater or lesser dependence and
dominion, here it emerges as potestas, as a separate power that transcends all to which is paid
obedience (obsequium). Empirically, the power ofthe multitude is in fact an amalgamation of
passions and interests, the result ofwhich is consolidated within a given institutional setting.
But such settings where the power ofthe multiple is revealed always establish tensions. The
consent of the individuals to the norms is mixed with rebellion and conspiracy, which is
only contained by fear. Therefore, 'the multitude that is led as if it were by a single mind'
cannot be explained as a mere convergence/divergence of affections, transfigured by the
imagination into aseparate entity and with power to affect, in turn, the conduct of each one. 49
Its intelligibility as aState inevitably requires it to be thought of as a unit, even knowing
that empirically this unit is only revealed through division. As Wittgenstein affirms, 'some
propositions are exempt from doubt, are as it were hinges on which those turn'.50 turn'. 50 And this is
the status ofthe expression una veluti mente.
Gail Belaief
For Spinoza the supreme end of the civil statel is to institute con-
ditions of peace and security of life in which men can achieve 'true
mind' . The state does not exist for the single pur-
excellence of the mind'.
rnaking its citizens obey its laws. Law, however, is the
pose of making
principal means by which the state can achieve its end and for this
assumes central importance.
reason the legal system of astate assurnes
In its widest significance, civil law, for Spinoza, is an agency
of social control which can be distinguished from frorn other agencies
of the state by what could be called its instrumentality, its mode of
functioning. Spinoza defines human law as a "plan of living which
secure",2
serves only to render life and the state secure" ,2 that is, law stipu-
lates the characteristic structure of the particular state and has a
definite aim and function. Law as both a tool of the state and that
which characterizes the organization of the state is the conception
which will be analyzed below.
distinetion between civillaw, taken as an institution of the
The distinction
state, and other agencies within the state, for example, religious or
social institutions, is that law is a command issued by the sovereign
to the citizens, who, as subjects, are bound to execute these com-
rnands of their ruler.
mands
1 The civil state, for Spinoza, has its foundations in the fact that men, dis-
covering they can better achieve material security and initiate intellectual
and moral development, join together, with or without a prior contract, to
form a civil community.
!
2 TPT, op. cit., p. 59, Chap. 4. G. Vol. III,
op. cil., II!, p. 59.
272 Spinoza and Law
viz., to enable men who are led by contrary desires to live in har-
mony with each other in order to achieve better conditions of life, Iife,
and the manner in which law can 'work' as a command. That is to
say, in order for a particular law to function, to induce men to obey
its dictates with a recognizable minimum of efficacy, it must appeal
to men on the level of desire and self-interest. If a citizen did not
fee!
feel that obeying a particular law was to his advantage he would not
do so. Nor could he be convinced through arguments of reason un-
less they were such as also affect the emotions. Laws must be not
only for the good or advantage of the citizens but must at the same
time appeal to them as such. The further question as to the impor-
tant relation between the efficacy of a law and its validity will be
considered below. At this point it may be noted that the efficacy
of a law depends for Spinoza on what it does, its content, and not
on who instituted it or how it is enforced.
The legislator, wh ether he is a monarch or the whole people, is
whether
not able to force the subjects to desire what is against their in-
clination, 'things which cause indignation in the majority'. Given
this as a law of human nature it occurs that the lawgiver must devise
special means of persuasion if he is to institute legislation seemingly
at variance with the instincts and desires of his citizens. It is for this
reason that it is necessary to attach rewards and punishments to
laws;7 men will then appreciate that obedience is to their advantage.
The state must claim the power "of promulgating laws and support-
ing them, not by reason, which cannot restrain the emotions, ... but
by penalties."8
penalties."B
As noted
no ted above, the analysis of the mode of functioning of law in-
dicates the limits of effective legal action of the state. Because men
can be persuaded to obey a particular law only if it appeals to them
as advantageous, it will be possible to legislate solelyon those mat-
ters which appear desirable or to which sanctions can be attached
as adequate incentives. As Spinoza understands the situation, "He
who seeks to regulate everything by law, is more likely to arouse
vices than to reform them."9 An important example of this is the
question of laws against freedom of thought and speech. For
Spinoza there could be no way of enforcing such a law in a com-
monwealth since it could never be shown to be to one's advantage
to have opinions and beliefs subjected to extern al contro!.
controL In ac-
cordance with one of the fundamental laws of human nature, the
power to think excludes a1l all outward compulsion; thus man IDust must
judge for hirnself
himself and he can never, according to another law of
human nature, judge it to be advantageous to have his thoughts
and speech under extern al coercion. "If a sovereign were to com- COID-
mand a subject to hate someone who has bound hirn him by a service,
or to love someone who has done hirn harm, if he were to command
hirn not to take offence at insults, not to desire
des ire to rid hirnself
himself of
fee1 the many other emotions of this kind which
fear, and not to feel
follow necessarily from the laws of human nature, he would com-
mand in vain."lO
vain. "10 To say merely, 'The state so commands' can never
be a reason to obey, unless obedience can be made to seem the
greater good.
Obviously, in actual
actuaI practice, the penalties attached to many
particularly unlikely laws can be made great enough to act as a
stimulus for obedience although at the same time such an attempt
may initiate revolutionary movements. These extremes notwith-
standing, Spinoza contends that it is unquestionably wiser, for the
security, peace and solidarity of the state, to structure laws so that
~
9 Elwes, TPT, p. 261, Chap. 20. G. Vol. Irr,
III, p. 243.
10 TPT, Chap. 17. G. Val.
Vol. III,
IH, p. 201, 1. 16-21. Original translation.
276 Spinoza and Law
D. OBEDIENCE TO LAW
26 LA W
THE CONCEPT OF CIVIL LAW
LAW
THE CONCEPT OF CIVIL LAW 27
will not be a law at all insofar as it does not and cannot attain the
requisite obedience. The significance of this condition will be con-
sidered in Chapter IV.
F. LAW
LAW AS THE WILL OF THE SOVEREIGN
G. INTERNATIONAL LAW
With respect to laws of war and pe ace, that is, laws governing re-
lations between states, the situation is not one of an acknowledged
sovereign commanding his subjects. Commonwealths are indepen-
dent of each other, in a "state of nature", prior to entering into
legal agreement or contract. "Laws of war are the concern of each
individual commonwealth only, but laws of peace are the concern
not of one individual commonwealth but of at least two." 34 The
only connections, legal or otherwise, between commonwealths are
pe ace treaties which are entered into from 'hope of gain or fear of
peace
hurt'. According to Spinoza, when the motive for having entered
Ion ger exists, the commonwealth has the right to
into a contract no longer
break the contract since each commonwealth must consult its own
interests and act according to them. Yet to hold that a contract is
valid only insofar as the williasts is to say that the contract is not
binding at all. The state which was second party to the contract
ought not to accuse the commonwealth which broke the contract
of bad faith. Astate should und understand
erstand from the outset that a con-
tract is valid only so long as it is to the advantage of each to subject
themselves to its conditions. Since the contract between states has
no other force behind it than the will of the contracting common-
wealths, it is, on Spinoza's principles, a misunderstanding of tbe the
nature of the state to suppose it to remain bound by an agreement
when circumstances are changed. The notion that treaties are bind-
The definition of law as 'a plan of living which serves only to render
life and the state secure' , inc1udes international as weIl
wen as domestic
law. The largest autonomous unit Spinoza conceives is the state and
it is for the good of the state that everything must be ordercd.
ordered. Thc
The
state is not however an abstract self-subsistent entity but the or-
ganization of individuals who maintain allegiance to it. The powers
of the state are the sum of the powers of its citizens. It has been
noted that law is both an instrument which the state uses to control
and guide its citizens and an agency which helps compose the actual
life and structure of that state. Although law is both thc the form and
the instrumentality of the state, law, or control,
contral, per se cannot be
the end of the state. It will always be necessary for law as a means
of the state to subject the substance of its commands to whatever
is necessary for men to live in harmony with one another. The state
itself becomes a means to the achievement of the welfare of the
individual citizens; if it does not fulfill this requirement it instigates
its own collapse. Wholesale disobedience to its laws are an index
to the malfunctioning of astate with reference to this task of satis-
fying its citizens. When disobedience reaches a certain point, it is
no longer possible to speak of the continuing in existence of the
original state. A new form of the state is instituted; that is, a new
legal structure, promulgated and enforced by the dissenters. Spinoza
does not identify the state with its legal system yet he recognizes
that the laws of the state define its character and its tenure, although
it is nonethe1ess
nonetheless true that the state has other functions besides its
legislative duties.
At the same time the desires and passions of individual men must
be subdued and brought into cooperation with the interests of their
fellow-citizens.
feIlow-citizens. The function of the state is not to persuade or
threaten its citizens to obey its law but rather to achieve for the
citizens a way of life which will minimize the conflicts between
them and bring each to his fuHest
fullest development. In actual fact, how-
ever, the state is dealing with men who have not, for the most part,
achieved the level of full
fun rationality and self-determination. Thus
law must approach these individuals on the level of desires and
290 Spinoza and Law
Manfred Walther*
ManJred
* Hannover, Germany
Gennany
1 One of the rare texts on Spinoza's philosophy of law Iaw which takes into account and
dis,usses
discusses Ihis
this difficulty, is Steven Barbonbe, Power in the Traclaslus
Tructastus Poli/ieus,
PoJilicus, in PIETY, PEACE,
AND THE FREEDOM TO PHlLOSOPHlZE 91-109 (Paul J. Bag1eyed.,
PHlLOSOPHIZE 91·109 Bagley ed., 1999). Barbone translates
"potestas" by "authority"
294 Spinoza and Law
Ir.
11. NATURAL LAW AND CIVIL LAW
A. Two Kinds of
01Law and the Ontological and Epistemological Status
Ontologiealand
ofHumanLaw
olHumanLaw
and divine law does not refer to their cause, because all of these
prescriptive laws are man-made, but to the region to which they apply:
Human law in the narrower sense concems the social coexistence of
men, whereas divine law concerns
concems man's highest good (TTP 4: 59,21-
28 I/ S 102-103).
As God's power (''potent ja") is nothing but the force of all single
things together which act according to etemal
eternal naturallaws, every thing
has, from God or nature, as much right as it has power to act. Thus
"(t)he right of nature as a whole, and therefore of each thing within it, is
co-extensive with its power" (TP 2/2).
Spinoza hurries to explain that the natural right of man has no
normative connotation at all, that it consists in his sheer power to act as
he is naturally, i.e. by the laws of his nature in the context of all of
nature, determined to act: "Consequently, whatever any human being
does because of the laws of his own nature he does by the supreme right
ofnature,
of nature, and has as much right over nature as he has power" (TP 2/5).
662 CARDOZO LA
LAWW REVIEW [Vol. 25:2
E. Dialectic 0/
The Dialeetie ofFreedom and the Superiority 0/
of the Demoeratie
Democratic
State
Stale3
If all
a11 rights that actua11y
aetually and stably exist are collectively based and
guaranteed rights it follows that "the right of each singly is in inverse
proportion to the power of all a11 the rest, i.e. he has in fact no right over
anything in nature except what the collective right allows hirn" (TP
2/17). All real, not only feigned, individual rights are thus at least co-
colleetively
co11ectively constituted, i.e., as legal permissions to act in aspace a spaee
gran ted and guaranteed them by the common power of the multitude as
articulated in the laws. The more rational the laws are, i.e., Le., the more
they are oriented toward that which produces synergetic effects, the
more men who are accustomed to live in astate are inclined to hold that
there ex ist apriori rational, i.e., natural, laws in the normative sense
exist
because they are no longer aware of the fact that the strength of those
rationallaws depends on social-political conditions and not on the force
ofreason itself(TP 2/22).4
To put it briefly: In astate under a common of laws no one any
comrnon set oflaws
longer possesses his own right ("esse sui iuris"), which means that he
can aet
ean act according
aecording to his genius alone, but must depend upon society as a
whole organized as astate through law. Thus, as an effect effeet of the
formation of the state and eonstitution
constitution of civil,
eivil, i.e., man-made, law, the
freedom to right has undergone a dramatie
relation of freedorn dramatic change: In the
state of nature, everybody was free in the sense that he could decide by
himself correspond
hirnself what to strive for, but to this freedom there did not eorrespond
any stable right = = power. Living in society and espeeially
especially in astate, he
has given up that freedorn-either spontaneously or under constraint-
in that he is bound to follow the eolleetively
collectively established rulesmIes of
conduct in the formation of his plans but has gained seeurity
eonduct security for
far his
arbitrary actions inside the space left hirn by those laws, i.e., has
substantial individual rights, because
beeause the uni ted force of the eornmunity
united cornrnunity
baeks
backs and supports his actions
aetions and protects them and their gains against
tht: unlawful actions
the aetions of others.
Thus, there seems to exist an indissoluble dilemma: Either one
maintains one's natural freedorn, in whieh case one has no substantial
which ease
rights, or one receives legally granted rights, in which case one forfeits
one's natural freedom. It is on the basis of this dilemma that Spinoza
demonstrates the superiority of democracy.
demoeraey. He claims that a demoeratie
democratic
state "seemed the most natural form of state, approaching most elosely closely
to that freedom which nature grants every man" (TTP 16: 195,16-17/
195,16-17 I S
243). The first aspect to underline is that no form of state equates the
freedom which nature grants every man-i.e., to make up his mind
irrespectively of what others decide to do and to be done-because all a11
are dependent on the civil
civillaws
laws as the rules
ru1es of conduct
eonduct which "restriet
"restrict
human power within set limits" (v.s., 2.2.1). The second aspect is that
in democracy every citizen
eitizen participates in the formation of law and thus
"transfers [his natural right] to the entire community ofwhich he is part.
In this way alla11 men remain equal, as they were before in astate of
nature" (TTP 16: 195, 17-19 If S 243). This is not a quotation from
Rousseau"s Contrat Scaia!Scalal of 1762, but from Spinoza's Tractatus
Theologico-Politicus of 1677! Because the circu1ationcirculation between the
direct acting power of the individuals and the directive potency of the
law maker exists in any form of state and cannot be brought to a
standstill, democracy's superiority consists in making that de facto
circulation, component of
cireulation, at least partially, a eomponent ofthe
the legal system itself, and
by this achieves the greatest enduring measure of unification of powers,
especially if there is aredistribution of individual subjective rights to
the citizens which enab1e
enable them to eonduct
conduct their 1ives-within
lives-within the limits
set by the eivillaw-according
civillaw-according to their own dispositions. Thus, there is
neither a contradiction between 1iberalism
liberalism and democracy, nor is there a
contradiction between liberalism and communitarianism. The reason is
that both factors constitute and modity each other permanently.
1lI. INTERNATIONAL
INTERNA TlONAL LA W
of intra-state law.
This may be a very uneasy insight for those who are accustomed to
hold just the opposite conviction; but it opens at least one encouraging
perspective on the globalisation process.
[16]
SPINOZA AND INTERNATIONAL LAW
By H. LAUTERPACHT, LL.D.
II
Three main features may be distinguished in Spinoza's doc-
trine of international relations. The first is the broad assertion
that the mutual condition of states is that of the state of nature
with a11
aU its implications. The second is the special emphasis laid
upon one of the incidents of the state of nature, namely, upon the
1 See, e. g. Pollack, Life and Philosophy, 2nd ed. (1912), p. 292.
Pollock, Spinoza, His LiJe
Spinoza and Law 307
VI
It was inevitable that Spinoza's infIuence
influence should rest, 110t
not on
the hesitating undercurrent which we have been tracing, but on
the apparent content of his teaching. Accordingly he was more
than onee
once drawn upon by those who either denied international
law, or attempted to introduce into it disintegrating elements in
the form of a vague and comprehensive clausula rebus sie stantibus
or of reason of state. Pufendorf may be referred to here as an
instructive instance. Stripped of its contradictions and of its
meaningless appeals to generosity, Pufendorf's statement on the
binding force of treaties strikingly resembles that of Spinoza. He
does not expressly mention hirn in this connexion, although he
criticizes elsewhere his political doctrine in' seathing
scathing terms. i6 The
main points of his discussion of the subject are the same as those
dealt with by Spinoza. There is the same insistence upon the
obligation ceasing to be binding if found inconsistent with the
interests of the state, and upon the precedence of the sovereign's
duty to his subjects to whom he is bound by the original promise
1 See e. g. Lammasch, 1Ja8 nacll dem Kriege (1917), pp. 159-71.
DCl8 Völkerrecht nacJl
2! C. xxv. 4. He maintains here inter alia that an ally is not bound torender
L. 11, c.
assistance if the common effort is not likely to be crowned with success. See also
L. 11, c. xvi. 27 (1). a3 L. II,
11, c. xxvi. § 25 (2); P.P.III,
III, 17.
•I Cf. here Sir Frederick Pollock in Chronicon Spinozanum, Vol. I (1921), pp. 47, 48.
a Dc
De JUTe NatuTac ct
Jure Naturac et Gentium (1672), L. 11, c. III, c.
C. Ü, § 3; L. 111, C. iv, § 4.
Spinoza and Law
Law 317
MachiaveUi
complete the task, begun by Herder, of vindicating Machiavelli
in Germany. Here again the decisive argument bears a striking
resemblance to the third chapter of the Political Treatise. At the
same time the fact must be borne in mind that Fichte also be-
longed to the group of men with whom Spinoza's influence gradu-
ally superseded that of Kant. It is, of course, difficult, in the
absence of direct reference to Spinoza's political writings,3
writings, 3 to
claim for this and similar instances of bis his influence a degree of
cogency which is not warranted by irrebuttable evidence. But it
is submitted that as a result of a comparison between the corre-
sponding passages-a task which reasons of space do not allow me
to attempt here-the element of doubt is considerably reduced.
This· scholarlyand
This· may be also said of Rosin's scholarly ,a nd guarded essay t4
on Spinoza's influence over Bismarck, the man whose recourse to
Machiavelli's methods in the welding of a great Empire left a
visible impress upon the develQpment of international relations
during the fifty years preceding the World War. But the influence
of the conception of international relations and sovereignty as
propounded by Fichte and Hegel was not restricted to Germany,
although it found there ready acceptance. Its spirit underlies to
1 333.
§ 833. 339.
,I § 889.
a Such direct reference to Spinoza will be found in the well-known
well·known monograph of
Lasson, Prinzip und Zukunjt
Zukunft des Völkerrechts (1871), pp. 152, 158.
153. He was a convinced
denier of internationallaw. See also Menzel in Sch'l1UJlleT's
SchmolleT's JahrbUch, XXXI (2) (1907),
pp. 45 et seq., on Spinoza's inftuence on Seydel and other prominent German jurists
international Iaw was a negative one.
whose attitude towards internationallaw
BismaTck und Spinoza in Festschrijtjür
, Bis1narck otiv Gierke (1911), pp. 883-420.
FestschTiftfür OUo
320 Spinoza and Law
11
II
This can take the form of a double standard within the domain of
morality itself. For sometimes, as in Hegel, Treitschke,
Treitsehke, and to a lesser
extent in Ranke, state behaviour is seen as subject to a special, higher
kind of morality. And indeed, if states are the embodiment of the pas-
sing of God through history , or if they are ideas 0/ God, in the words
of Ranke (Gedanken Gottes, Ranke 1963, p. 61), then all things states
need for their flourishing or very being possess a special justification.
justifieation.
Not seldom, however, there is a clear consciousness of the dark
aspects of thinking and acting in the spirit of reason 0/ State.Stale. Maehia-
Machia-
velli, Hobbes, Frederick the Great, Max Weber, to mention only these,
are unanimous in their opinion that politics is no good for people who
want to keep their hands clean and their soul unstained. Political reali-
ty is eoarse
coarse and hard, and whoever wants to take part in it must be
willing to sell his soul to the devil. This is said, not from taking pleasu-
re in the evil - although one cannot deny sorneonesomeone like Machiavelli a
eertain
certain malicious satisfaetiofi
satisfaction at playing with fire, life only growing ta-
steful and spiey that way - , but from an illusionless view of reality.
Much reason 0/ StateStale thinking, therefore, breathes a glooming, often
even cynical atrnosphere. To its essentials belong a deep anthropologi-
eynical atmosphere.
330 Spinoza and Law
tell the Melians. That is the reason why they feel necessitated -another
key concept in the vocabulary of reason 0/ oi State (Machiavelli, Discorsi
passim, e.g. I, 1; 6; 7; 111,
III, 1; 12.) - not to permit niches to arise in the
universe of power that would be filled by others immediately.
So, in this outlook, politics essentially means antagonism. What is
good for one party is necessarily bad for the other: One man's
(state 's) meat is another man 's poison. In other words : there is no
good-for-all, no good in a universal, objective sense. Thus the term
good (or value) does not refer to certain objective qualities of things,
but is no more than the reflection of a subjective and particular attitu-
de towards them.
So, in meta-ethical language, reason oi 0/ State thinking holds a subjec-
tivist and emotivist position. Reasonable solutions of political dispu-
tes, for that reason, do not exist (in the last resort at least), hence the
prominent place that war takes up here, considered wholly in Clause-
witzian terms as an eiiective
e//ective political
po/itical instrument. (Clausewitz 1976, p.
168) 16 As, lastly, conflicts cannot be resolved in a peaceful, non-vio-
Spinoza and Law 331
lent way, states help themselves (Hegel 1821, § 334), if they have the
means, and take the law into their own hands. Accordingly, in this
approach, they are conceded an unrestrained right to conduct war
(competence
(comphence de guerre).
A last feature of this whole complex of ideas is the primacy that is
awarded to foreign as compared 10 internal policy. Thinking and acting
in terms of reason oi 01 State expresses itself predominantly, though not
exclusively, in the field of interstate relations. 17 What is of interest in
this perspective is not primarily the internal organization and constitu-
tion of the body politic, for instance the most desirable (best) order of
the state in view of the so-called
so-ca11ed goals or functions of the state, as the
maintainance of the internal peace, security or freedom. What is in the
centre, here, is the external liberty and independence, the capability of
the state to maintain itself amidst equals. what is improtant, therefore,
is the outwards directed manifestation of the state to which the inter-
nal order is made subordinate. The very discussion of the internal
arrangement of the state for its own sake, however, was the main sub-
ject of ßclassicalß political philosophy. For the central question here is,
what, in the light of the destination of the state, is its best constitution.
In other words: here the state as such is not an end in itself, but it
finds its raison d 'etre
letre in the realization of things like peace, justice, se-
curity, freedom or well-being,
we11-being, - in the internal sphere, that is to say. A
normative approach to the state in this sense, however, asking wh at
what
constitution is best suited to realize the afore-mentioned goals, is not in
line with thinking in terms of reason oi01 State.
they mean war. Relations between states, for that matter, often are dis-
cussed under the headings of treaties and war war..21
21
About war (and peace) something already has been said earlier. For
that reason now only the following: In the Machiavellian tradition war
has been one of the means - if not the instrument par exeellenee - that
the state can use in looking after its interests. So war is considered ex-
dusively under the political angle here. The only criterion for judging
it is its aptness to serve the good of the state. Thus, as was pointed out
above, states in this line of thinking have an unlimited right to wage
war as it suits them. Every justification addressed to others is super-
fluous.
A justification in this sense is exact1y
exactly the thing that is demanded by
the alternative approach. Here war is subject to standards of acceptabi-
lity in a universal, non-biased sense, to legal and moral standards, that
is to say. For law and morals mean the substitution of the situation in
which the law of the jungle rules, by an order in which everyone's
interests, at any rate the most fundamental ones, have been secured. In
respect of war this means that it is permitted only under very special
conditions, - at least no longer as a pure means of power-politics.
The more or less systematic formulation of these conditions of per-
missibility is known as the just war doctrine. Therefore this doctrine is
a permanent part of what we have termed the Grotian conception of
international relations. Conversely it could be shown that the just war
theory, from Cicero down, rests on assumptions as have been worked
out in this Grotian conception.22
The second main theme of thinking about international relations, the
issue of treaties, has not been as prominent as the subject of war, it is
true, but none the less it is permanently present in the discussions.
Meinecke in this connection even speaks of the eentral problem 0/
Maehiavellian polities,
poiWes, (viz.) the doetrine that treaties are to be kept
only as long as the interest 0/ the state requires .23 And in fact, from
chapter 18 of Machiavelli 's /1 II Principe onwards the subject of treaty
breaking continuously has been on the agenda in the discussion between
advocates and opponents of Machiavellian thinking. 24 Also in this mat-
ter the dividing line between both positions is such again that for Ma-
chiavellians the ininterest
te rest of the state suffices to justify the breaking of
treaties without more ado, wherever it is necessary or advantageous.
Rejecting this selfish position, the Grotians in this matter also approach
Spinoza and Law 335
things from a more comprehensive point of view that does not identify
right with usejulness .25 In this conception human relations, intra- as
essentiaHy characterized by good faith (lides):
weH as international, are essentially (fides):
Good jaith is the sole joundation oj all justice. Good jaith holds toge-
ther not only states, but u the entire human society. (Bodin 1583, I 8).
It is nothing but another way of stating the same position when Gro-
tius dec1ares the principle Pacta sunt servanda to be the corner-stone of
the international order. And it is only on the basis of the general validy
of this principle that in the Grotian tradition the exceptions are discus-
sed that aHow for the breaking of promises such as: pacts with a crimi-
nal, treaties that cannot be kept without commiting a crime oneself or
the state of emergency, Le. the dang
dangerer of the downfaH of the state.26
111
III
Yet, however much all of this may be true, there are weighty rea-
sons to doubt that this is the whole story. If we call to mind the two
conceptions of international politics in their various moments which
were sketched earlier, too much is on the other sheet. Put otherwise: in
crucial respects Spinoza exhibits an affinity to Grotian rather than to
Machiavellian ways of thinking.
The idea of reason of State, as was pointed out above, is connected
with an anthropological naturalism and axiological subjectivism. Nei-
Spinoza 's position. As to the former, man is
ther, however, represents Spinoza's
Spinoza and Law 337
not exclusively the helpless puppet of his pass ions and emotions deter-
passions
mining hirn behind his back, but in and through them shines his deeper
rational nature. Passions are seen by Spinoza as unpurified, eonfused confused
reason that didn 't yet find itseleo The philosophical proeess process of
correction oj the intellect, of progressive enlightenment, at the same ti-
me makes man master of hirnself (sui iuris) and thus liberates hirn from
the slavery of the passions, that is, from slavery in its most proper form
in Spinoza 's view. 331!
If, therefore, Spinoza seems to defend a kind ofaxiologieal
ofaxiological subjeeti-
subjecti-
vism implying a variety of ineompatible
incompatible values unavoidably bringing
people into conflict with eaeheach other, this refers to the situation in whieh
which
people have not yet attained a life under the rule of Reason. Philosop-
hical insight, however, creates the ability to break away from the
struggle between the multifarious so-called valuable things and to deve-
lop an universal standard of the real good for man. 33 Thus, people
who develop their truly human, rational potentialities and strive for
their real good are no longer Ion ger involved in endless Quarreis
quarrels with each
other, but live in harmony and are useful to one another in the highest
degree (E 4P18S; E 4P35-37, 73; TTP 3, beginning).
Therefore, the situation fitting in with human nature, as philosophi-
philosoph i-
characterized by harmony, eooperation,
cal insight shows it to be, is charaeterized cooperation, in
one word: peace. This is by no means the least helpful wayy off 100-
king at Spinoza 's philosophy to see it as an elaboration of this idea.
That peace is the dominating goal in the political domain one can read
tim es , for instance, when Spinoza maintains that peace cannot
several times,
be bought at too high a price. 34 It should be added at onee once that this
Spinozistic concept of peace doeas not only have a negative side, as in
the tradition of reason oj StateStale it necessarily must have. In Spinoza the
concept in its full meaning refers to the situation in wh which
ich everyone has
the opportunity of self-development from within, this being the kernel
of the Spinozistic idea of freedom. Spinoza explicitly rejeetsrejects the (Hob-
besian) eonviction
conviction that peace can only be brought about by way of re-
pression. Wellknown are his words that aState whose subjects subjecls are pre-
vented by jear only jrom taking up arms can better be said to be wi-
thout war than that peace reigns. For peace does not consist in the ab-
sence oj war, but in virtue proceeding jrom strength oj mind. (TP
5/4) Peace in its true sense has to be described in a positive way:
peace, as we noted already,
a/ready, does not consist in the absence oj war,
338 Spinoza and Law
but in unanimity and concord. (TP 6/4) And Spinoza is very explicit
that peace that is won at the price of slavery , barbarism and
isolation, is not only wrongly called that way, but that in that case the-
re would be Jor man nothing more miserable than peace. 35 So, in con-
trast to Machiavellian convictions peace and freedornfreedom are considered,
here, not only not to contradict one another, but as belonging toge-
ther. And it is not by accident that in a nurnber
number of places
pI aces they appear
linked up to a single expression.36
This Spinozistic freedorn,
freedom, being self-deterrnination
self-determination frorn
from within, is in
no way threatening to others. The same is true of the way Spinoza
conceives power. Indeed, power to Spinoza's understanding is a neces-
sary feature of being in existence. But it is supposed to be of a defensi-
ve kind only, directed exc1usively to self-rnaintainance,
self-maintainance, without offensi-
ve tendency, as in Machiavelli, where all things obey the law of eating
or being eaten, thereby forming
forrning a constant threat to each other.
In Spinoza's political philosophy, therefore, everything is rnissing missing
that, to whatever slight degree, could point in the direction of expan-
sion, conquest or enlargernent
enlargement of power. The ernphasis
emphasis in his political
theory, then, is evidently on intranational relations or, to use Kant' Kant'ss
terminology we al ready quoted above, on the StaatsverJassung rather
already
than on the Staaten verhältnis . In that respect, already the amount of
space he reserves for the discussion of foreign affairs is significant, -
less than one thousand five hundred words, all inc1uded, as Lauter-
pacht notices.(Lauterpacht 1975, p. 366) In co contrast
nt rast to the Machiavel-
lians in his political philosophy internal freedom is more important
than external
extern al freedom, or rather , the latter
laUer only exists for the sake of
the former. So the external
extern al independence of the state merely has the
function of guaranteeing aspace within wh which
ich people can live their own
way of life.37
It is in accordance with this line of thinking when peace, as a desira-
ble state of affairs in the international domain, is seen as an extension
of the internal situation. Stronger yet: the prerequisites for peace at
the interstate level are sought by Spinoza in the intranational sphere.
Thus, he is of the opinion that the democratic form of government
offers excellent safeguards against the risks of war. Spinoza so initiates
a course of thinking that was to find its c1assical formulation in Kant's
Perpetual Peace, viz. that only a democratic constitution can effectively
guarantee peace because only in that way the real interests of the whole
Spinoza and Law 339
IV
In the above our undertaking has been to study Spinoza 's view of
international relations, as indicated, not by way of a direct interpreta-
tion, but by approaching it indirectly. For that purpose we first analy-
zed the two main traditions in the field as they cristallyzed in the cour-
se of time. In this way we meant to discover the inner logic and the ty-
pically recurring moments of these schematized positions, in order then
to return to Spinoza and to ask, using this detector, whwhich
ich of the moti-
ves distinguished can be found in Spinoza which way. One might call
this method a kind of phenomen%gy,
phenomenology, of collecting materials to an
interpretation before asking how they might fit into the perspective of
Spinoza 's thinking.
Stating things this way, it is clear
c1ear wh
what
at the kind of approach we ha-
Spinoza and Law 343
NOTES
1 For the French expression raison d 'etat there is no proper equivalent in English. We
give its ßtranslationß in italics throughout the article.
2 So the historian Gerd TeIlenbach observes that from Carolingean times onwards the
words world, empire, mankind, Church, and Christen dom were often used as
synonymous (TeIlenbach 1952, p. 63, quoted from Hehir, 1979, p. 122).
3 Fr. A. von der Heydte 1952, pp. 41 ss., believes that al ready in the early 14th centu-
ry the terms estat and status begin to be used in their modern sense. More reserved views
in Hoffmann 1967, pp. 97ss.
4 So, although Grotius in his De Jure Belli et Pacis (Grotius 1612/1939) undertakes to
expound the Law of Nations regarding war and peace, peaee, the entire structure and division
of the book is determined by the phenomenon of war. Part I contains a general treat-
ment of war and the law concerning it, Part Il 11 and III are devoted to the two main parts
of the law of war, respectively ius ad bellum and ius in bello.
5 Other instances are Morus, Hobbes (who alludes to interstate affairs only by way of
S
illustration), Locke, Rousseau, and in the present time, Rawls. It lt should be noted that
one of the various models for peaee between states hinges on a connected idea: that war
will disappear in a world of c1osed, autarchic (smalI) states with only a minimum of rela-
tions. The basic idea, that is to say, is peaceful coexistence by isolation. See Fetscher
1972, Modell 4.
6 BuH 1977, pp. 24 ss., distinguishes three traditions of thinking about international
relations: the Hobbesian or realist tradition, whieh views international polities as astate
astale
of war; the Kantian or universalist tradition, which
whieh sees at work in international polities
eommunity of mankind (Transnational social bonds link the individual human
a potential community
beings, p. 25); and the Grotian or internationalist tradition, whieh views international
344 Spinoza and Law
politics as taking place within an international society (01 (of states) Cf. BuH
Bull 1966, pp. 51-
73.
For our purpose in this article we can trace the dividing line between Hobbes (Machia-
velli) on the one hand and Grotius and Kant on the other. As BuH Bull hirnself observes:
... Grotius,
Gratius, in his conception 01 of international society, leans towards the doctrine that
would replace it with a universal state ... , in Kantian direction, that is to say (ibid., (ibid ., p. 53
note). In the same sense Hehir 1979, p. 135: ... the Grotian conception that the societas
first a community 01
humana is lirst of persons, then a society 01 of states.
7 See the definition of politics as Streben nach Machtanteil oder nach Beeinflussung
der Machtverteilung, sei es zwischen Staaten, sei es innerhalb eines Staates zwischen den
Menschengruppen, die er umschließt, Max Weber 1971 3 , p. 506.
8 In this connection it is worth while to mention the name of Adolf Menzel who possi-
bly was the first to study more systematically Spinoza's Spinoza 's conception of international rela-
tions. See in particular Menzel 1908. 1908 . In his Beiträge zur Geschichte der Staatslehre (Men-
zel 1929/1974, ch. 19 Staatsverträge und Völkerrecht, pp. 410-424), in which Menzel re-
turns to the subject once more, he comments and criticizes, among others, the views of
Lauterpacht and Verdross.
9 The difficulty with this line of argument is that it is rejected explicitly by Spinoza
hirnself. For, in TP 3/ Il, I I, states are said to be not as vulnerable as individuals.
individuals . (The sa-
me argument against the domestic analogy in Vattel (see Lauterpacht 1946/1975, 194611975, p. 335
note) and Bull 1977, p. 49 ). The question whether there is an interdependence between
states requiring transnational arrangements has been a permanent matter in dispute be-
tween Machiavellians and Grotians up till now. Already Suarez 1612, stresses the
interdependence of states,states , just like Grotius does (Grotius 161211939, Proleg. 22). It
should be kept in mind that in this form it is an empirical, not a philosophical argu-
ment.
10 Well-known is Machiavelli 's reproach addressed to Christianity that it has made
people weak and unfit for a political liIife, fe , Discorsi 11, 2. In the same vein Hegel, see
Meinecke 19633 , p. p . 413.
11
Il For the concept of the supra-political, see Jaspers 1960, pp. 33, 46 ss. ,, 49ss. , 54
ss.
12 Cf. Meinecke 19633 , p. 366 (in connection with Fn!dz085eric le Grand 1779), pp.
(Bollmann 1858, with the motto Das Vaterland über alles) etc. As to Treitsch-
413, 465, (BoHmann
ke, see e.g. Politik I (Treitschke 19133 ) p. 60: 60: only in war aanation
nation becomes a nation in
sense . Nur gemeinsame große Taten lür
full sense.
the fuH für die Idee des Vaterlandes can give an in-
ner coherence to a nation. Cf. Machiavelli, (1968) IlI, III, 47:
47 : amore deHa
della patria.
Sometimes a faint reflection of this can be found in Spinoza, e.g. when he speaks of
summa pietas erga patriam (TTP 19 ss.), without, however, the weight and colour such
Spinoza and Law 345
21 See, e.g. , Hegel 1821, § 337: ... the principle for the justice of wars and treaties...
22 I have elaborated this point somewhat further in van der Wal 1982/83, pp. 59 ss.
23 Meinecke 19633 , p. 350 (stronger yet p. 362: ... das Haupt- und Kernstück reiner,
unbedingter Machtpolitik und Staatsräson, den Vertragsbruch ... ). Walzer points out that
in the diseussion of the dilemma of dirty hands (that) is a central feature of political life
lying, not the murderous, politician - though the murderer lurks in
the stock figure is the Iying,
the background... (Walzer 1973, pp.162ss.).
24 Well-known
WeIl-known in this respeet is the long ehapter on alliances allianees and treaties in Jean
Bodin 's Les six livres de la Republique, Bk. V, eh. 6 (Bodin 1583). Reviewing many hi-
storical examples of treaehery and breaeh of treaty in politics, he is resolute in his rejee-
tion of eonsiderations whatever of reason of State.
25 Grotius 1612/1939,
161211939, Proleg., ... : questions of right should be kept apart earefully
from questions of utility that pertain to another provinee as jurisprudenee, viz. to the
specialartofpolitics.
special art ofpolitics. Cf. Proleg., §§ 3ss., 16ss.
26 See, e.g. , Bodin 1583, V V/6.
/6. In the same sense Grotius 161211939, II, 15, 15; cf. II,
ll, 6ss. ; 11,
11, II, 13, 4ss. ; III, I,
1, 18ss. ; I1I,
III, 20, 27ss. It is worth noting that Spinoza is thin-
king along these !ines
Iines when he argues that one who is entrusted money by a thief is not
obliged to keep his promise to return the stolen money to hirn, TP 3/17. The motive is
of a moral kind, here, - not that keeping my promise would be disad-vantageous to me.
Spinoza may have taken the ease from Grotius.
27 TP 2/14 (aliquo odii affectu); cf. 215, 2/5, 6, 21 (blind passion, caeca cupiditate); 8/6
(evil passion, malo affectu).
affecru).
28 TP 3/13 (duae Civitates natura hostes sunt); 7/24.
29 TP 3/13; cf. 2117;2/17; 4/1 (ius bellum inferendi, the right of Government to wage
war), ete.
30 See the general definition of the passions at the end of E 3 : the passion ... is a con-
fused idea, Affectus... est confusa idea ... Cf., e.g. , E 4P14D: Passion is an idea ... ,
Affectus est idea ...
31 See, e.g. , E 4Pr: The human incapability of moderating and controling the pas-
sions II call slavery. And: ... whoever is dominated by his lusts so as to be unable to re-
cognize or achieve what is useful to him pre-eminently is a slave (TTP 16).
In Spinoza, that is, slavery is not in the first plaee a social, but a moral eategory.
32 See also Curley 1973, pp. 354 ss., in part. p. 363. Also Rohatyn who attributes an
(non-cognitivist) position to Spinoza, admits that in the Ethics a dialectical
emotivist (non-eognitivist)
shift of sorts is taking place (he even speaks of the latent intellectual schizophrenia in the
conclusion is that Spinoza is an emotivist, although an extremely pecu-
'Ethics '). So the eoncIusion
/iar one, who may in rhe
Iiar the end transcend his own position in ethics.
33 So Spinoza ean, e.g. , speak of the right way of life, recra recta vivendi ratione, E 4A.
Spinoza and Law 347
BIBLIOGRAPHY
Huch, 1858.)
Brandt, Reinhard: Rousseaus Philosophie der Gesellschaft. (Stutt-
gart, Bad Cannstatt : Frommann Holzboog, 1974.) (problernata; 31.)
Bull, Hedley: The Anarchieal
Anarchical Society : A Study of Order in World
Polities.
Politics. (London : Macmillan, 1977.)
Bull, Hedley: The Grotian conception of international society : Dip-
lomatie investigations : essays in the theory of international politics, H.
Butterfieid and M. Wight (eds.). (London : Allen & & Unwin, 1966.), pp.
51-73.
Camp bell, Tom: Seven Theories of Human Society. (Oxford : Cla-
Campbell,
rendon Press, 1981.)
Cicero, Marcus Tullius: De re publica/Vom Gemeinwesen, latei-
nisch-deutsch. Übers. u. hrsg. v. Karl Büchner. (Stuttgart : Reclam,
1979.) (Universal-Bibliothek; 9909.)
Clausewitz, Carl von: On War/transl. M. Howard; P. Paret. (Prin-
ceton : UP, 1976.)
Cohen, Morris R.: Spinoza, the Prophet of Liberalism. In: Idem:
The Faith of a Liberal (Toronto: Oxford UP, 1946), pp. 13-46.
Curley, Edwin M.: Spinoza /s Moral Philosophy : Spinoza : A col-
lection of critical essays, by Marjorie Grene (ed.). (New York : Uni ver-
sity of Notre Dame Press, 1973.), pp. 354ff.
Fetscher, lring:
Iring: Modelle der Friedenssicherung : mit e. Anh. marxi-
stisch-leninistische Friedenskonzeptionen. (München : Piper, 1972 .)
(Serie Piper; 41.)
Feuer, Lewis Samuel: Spinoza and the rise of liberalism. (Boston :
Beacon Press, 1958.)
Frederic
Fnfderic Le Grand: Lettres sur I/amour de la patrie. In: Idem:
~uvres, publ. par J.D.J.D . Erdmann-Preuß, Berlin 1846-1857, tome 9, pp.
213ss.
Grotius, Hugo: De jure belli ac pacis libri tres. Paris: apud Nieolaum
Nicolaum
Boon, 1625.) (Krit. Ausg.: Curavit B.J .A. Kanter van Hettinga Tromp.
B.J.A.
Ludge. Bat. : Brill, 1939.)
Friedrich : Grundlinien der Philosophie des
Hegel, Georg Wilhelm Friedrich:
Rechts oder Naturrecht und Staatswissenschaft im Grundrisse (1821).
Stuttgart : F. Frommann.) (ldsem: Sämtliche Werke: Jubiläumsausg. ;
7.)
Hegel, Georg Wilhelm Friedrich: Die Verfassung Deutschlands. In:
Idem: Frühe Schriften (Frankfurt a.M a.M.. :: Suhrkamp, 1971) (ldem: Wer-
Spinoza and Law 349
ZUSAMMENFASSUNG
als Denker der Staatsräson versteht, bei ihm in wichtigen Punkten eine
klare Affinität zu der grotianischen Position zu verzeichnen ist.
Paolo Cristofolini
There is a key concept in the Political Treatise in which the essential identity between law and
refiected and developed: the concept of sui juris.
force is reflected
The computer index!
index l allows us to notice that this pair, suijuris,
sui juris, is the most frequently used
expression (47 appearances) inside the general context in which the singular nounjusnoun jus appears
the most. It is much more frequent and it has a much higher quantitative and qualitative
relevance than the expressionsjus naturale orjus naturae (27 appearances overall).
In Roman law, from which it derives, it belongs to private law. The homo sui juris is the one
suijuris
who does not submit to an external power and who is a rightful member ofthe community. His
negative counterpart is the homo alieni juris. 2
Spinoza develops the two concepts: the negative concept, which is slightly modified and
less important, becomes esse alterius juris 3 (not alieni); and he never writes homo sui juris,
but rather esse sui juris. Both expressions are transferred to a semantic context in which they
suijuris.
no longer belong to private law, but rather to the science dealing with the fundamentallaws
of the State.
ofthe
Since law coincides with power in Spinoza's framework, the first meaning of esse sui juris
is connected to the idea of not being subject to someone else's power; of not having to fear
impositions; of being able to defend oneself; and of being capable of living ex sui
threats or irnpositions;
ingenio (TP 11, 9). Spinoza, who never identifies the state of nature with the primitive state,
does not believe that a beastly indiscrirninate
indiscriminate aggressiveness is natural to man. Rather, he
regards as natural to the human condition that very specific form of aggressiveness, or rather
of prirneval
primeval haughtiness, by which every man wishes to force all the others to live according
to his own ingenium. 4 If, then, esse suijuris means above all the guarantee that one's ingenium
* Originally published as Paolo Cristofolini, 'Esse suijuris e scienza politica', Studia Spinozana I
(Alling: Walther & Walther Verlag) (1985): 53-71. Reprinted in: Paolo Cristofolini, La scienza intuitiva
di Spinoza (Pisa: Edizioni ETS, 2009), chapter 5, 'Scienza intuitiva e scienza politica', pp. 57-72.
English translation by Andre Santos Campos.
I Spinoza, Tractatus politicus. Traite Politique, texte latin, traduction par P.-F. Moreau, Index
informatique par P.-F. Moreau et R. Bouveresse (Paris: Editions Replique, 1979).
I Studies on this theme are scarce. The classical reference remains A. Menzel,Menzel. 'Homo sui iuris.
Zeitschriftfür das Privat- und öffentliche Recht 32 (1904): 77-98.
Eine Studie zur Staatslehre Spinozas', Zeitschriftlür
Important developments ofthis theme can also be found in: L. Mugnier-Pollet, La philosophie politique
de Spinoza (Paris: Vrin, 1976), chapter VIII; and in J. Wetlesen, The Sage and the Way: Spinoza s Ethics
01 Freedom (Assen: Van Gorcum, 1979), passim.
ofFreedom
I ITregister tour
four appearances: TP TI, 9; TI, 11; III, 12; VTI, 16.
I TP 1,I, 5: ' ... homines ... ita constitutos esse ... ut ad vindictam magis, quam ad misericordiam
sint proni, et praeterea unumquemque appetere, ut reliqui ex ipsius ingenio vivant'.
356 Spinoza and Law
does not fall under the authority of another, the importance ofthe of the concept we are examining
becomes clear.
c1ear. The whole problematic nature of conflict revolves around it, whether in the
private or especially in the public realm.
This first meaning of esse suijuris may be called Machiavellian, ifby 'Machiavelian' one
understands, apart from the most common usages, the set of strategies aimed at guaranteeing
and preserving an autonomous control or dominance within a universe of incontrollable
powers.
However, there is also a meaning with a narrower technical scope, even though it becomes
c1earer and more precise in Spinoza's framework. This second meaning of esse sui juris
clearer
corresponds to the conditions in which the individual may use reason and is capable of
reasoning. 5 It
[t is narrower than the first meaning if one considers as intrinsic to the unfolding
of rationality the observance of prerequisites such as independence and self-defence against
extern
extemal al threats. Following up on this logic implicitly, Spinoza sets forth this meaning in a
second instance only after presenting and clarifying
c1arifying the first.
But even if the problem is approached from a wider and more intelligible perspective,
it is c1ear
clear that this second meaning absorbs the first, which in turn becomes subordinate to
the former. [n fact, for Spinoza, whenever rationality is not settled solidly and men remain
subdued (obnoxii)6 by blind passions, there is no guarantee whatsoever that self-defence and
autonomy may rule or that men cannot fall once again into circumstances in which they are
alterius
alter ius juris.
[n both meanings alike, everything that is stated applies equally and fully to the singular
(unusquisque) and to the collective (civitas). The fact that the arguments develop generally
from the viewpoint of the unusquisque seems simply to carry out an explanatory and
pedagogical rule; but the research attains its main object only when it focuses on the civitas.
For this reason, [ claim that these concepts leave the realm ofprivate law in order to enter the
realm ofpublic and interstate law.
Both senses of esse suijuris appear in the following terms with regard to the civitas. Firstly,
the civitas is sui juris when it is independent, when it secures its own borders, and when it
has its own armies. 7 Secondly, it is sui juris whenever it is in accordance with reason. 8 The
govemment that Spinoza recognizes and examines in the Political Treatise
different forms of government
(monarchy, aristocracy and democracy) become legitimate the moment that the terms and the
possibility ofrational control over them are fulfilled.
overthem
I TP TI, 11: 'lmo quia humana potentia non tarn ex Corporis robore, rabore, quam Mentis fortitudine
aestimanda est, hine sequitur, illos maxime sui iuris esse, qui maxime ratione pollent, quique maxime
eadem dueuntur'.
I TP I, 5: 'in nostra Ethiea verum esse demostravimus, homines neeessario affeetibus esse
obnoxios'. EIVP4Cor:
ETVP4Cor: 'Hine sequitur, hominem neeessario passionibus esse semper obnoxium'.
TTT, 9: 'Civitas eo minus sui juris est, quo magis timendi habet eausam'.
TP III, causarn'. TP III,
TTT, 12: 'Civitas
... eatenus sui juris est, quatenus sibi eonsulere, et eavere potest, ne ab alia opprimatur'. TP VTI, 17,
then, eehoes openly Maehiavelli's eoneepts (The Prince, VI): out 'ut cives ... suijuris maneant et libertatem
tueantur, militia ex solis civibus nullo exeept eonstare debet. Est enim homo armatus magis, quam
inermis sui juris'.
suijuris'.
I TP III,TII, 7: ' ... sieuti in statu natural ille homo maxime potens, et maxime sui juris est, qui ratione
dueitur, sie etiam illa Civitas maxime erit potens, et maxime sui juris, quae ratione fundatur, et dirigitur'.
Spinoza and Law 357
2. Intuitive Science
Seien ce and political seien
science
ce
At this point, we can draw a first comparison between the arguments in the Political
Treatise and the form of science developed in the Ethics. Sui juris qualifies the singular man
(unusquisque) for whom the search for what is useful, to which all are inclined, is pursued
within harmonious social relations, together with others, as a collective utility.9 If we refer
the elements of our present enquiry to the three kinds of
ofknowledge
knowledge present in EII40Sch2, a
man is sui juris when he reaches the second kind, since he is able to extract a universal from
a common notion (the useful) by means of complex deductive processes, and consequently
also to subsume from it what is singularly useful. This sort of man is no longer passionibus
obnoxious; rather, he is active in the sense that he masters adequate ideas. However, when
it comes to political science, the case of the unusquisque is a useful abstraction only in the
beginning of the problem. Spinoza never ceases to alert that the overwhelming majority of
men remain subdued to the passions and do not live according to reason:
Here, the ambivalence ofthe word cupiditas - which expresses human essence as desire in the
form ofthe appetitus cum ejusdem conscientia (EIIIAffDefl; EIII9S), even though it can also
be caeca in this as in other passages ofthe Political Treatise - becomes intelligible only in the
light ofthe affects' general ambivalence displayed in EIII58 and EV3. Naturally, cupiditas is
not deprived ofoftraces
traces of conscience, as its definition shows - not even when it is blind. It is
important to notice that Spinoza's passionate men are not 'beastly', such as those present in
Hobbes 's, Grotius's
Hobbes's, Grotius 's or Vico's state of
ofnature;
nature; rather, they are men whose state ofnature
of nature occurs
in an evolved commercial society, where it is natural to pursue private benefits without paying
attention to the common good:
cum humana natura ita comparatum est, ut unusquisque suum privatum utile summa cum affectu
quaerat, et illa jura aequissima esse judicet, quae rei suae conservandae, et augendae, necessaria
esse ... 11
esse ...
These passions are rational only in the narrower sense (commonly used during the XVII
century) of the word ratio: that of calculation. Spinoza's passionate men are those who
calculate, even if blindly and irrationally because they do not know how to calculate for the
long-term and are not aware ofthe connection between their private interests and the general
interest. Therefore, the area of the true and proper research into the possibility of politics
in accordance with reason and into the nature of the fundamental laws of the state cannot
coincide with the area of studies dealing with the singular man. Whereas the analysis of man,
ofthe mind-body relation, and ofthe affects' dynamic nature occurs in the Ethics through an
itinerary of self-improvement, there is no place in the Political Treatise for a self-improved
subject. The Political Treatise intends to carry out a research that aims at a method conducing
I EIV35Cor2 : 'Cum maxime unusquisque homo suum sibi utile quaerit, turn maxime homines
sunt sibi invicem uti
utiles'.
les'.
IIJ
10 lL 5.
TP ll,
11
11 TP VII. 4.
TPVll,4.
358 Spinoza and Law
towards the public conditions of esse suijuris. This research and this method cannot belong to
the citizens, neither as subjects nor as rulers, since all without exception must be considered
absolutely unavailable to such undertaking. And yet, the key element that unites research and
method must be found.
The Political Treatise forces us to face the problem of identifying the following matter of
uncertainty: The active subject is capable of doing that which the civitas ordains in such a
way that forces hirn, in what we may call the common sense of his everyday life, to follow a
ofhis
path in which irrational men (including rulers) actually live in accordance with the dictates of
reason, thus fulfilling the collective good (whether they want it or not) when following their
blind impulses and desires:
All this occurs not through some pre-established harmony or through the 'cunning ofreason',
ofreason' ,
but rather by reason
reason's
's intervention in the particular history that emerges as necessary and
never secretly.
However, such considerations are incapable of allowing us to elude the question that
functioned as our starting point, about
ab out the active role (or the 'prime mover', metaphorically
speaking) of the political order. Both terms - citizen and State - refer to one another. Only
singular men can use reason and have adequate ideas; the collectivity may, at most, enjoy the
effects of such use; on the other hand, only a collectivity permeable to rationality can offer the
conditions by which singular entities and groups may rise to reason. Here, the second kind of
knowledge seems to depend upon a sort ofvicious cycle.
According to Spinoza, this situation is not the same in all tim times
es and in all nations. A
comparison with the Theological-Political Treatise should point out a difference of approach
with regard to historical circumstances. In it, the prophetic language of the imagination and
the coarse and improper linguistic expressions used by Moses 13 were justified insofar as they
were the adequate means of introducing civil order to a coarse people which was deprived
ofrationality due to its condition of
ofbondage.
bondage. In such a situation, which reminds us the cases
ofNuma and the ancient Romans described in Machiavelli's Discorsi, the civil order's prime
mover materializes into the specific historical figure of the legislator - his language, proper
to the imagination (the first kind of knowledge), produces effects that are proper to rationality
(the second kind ofknowledge).
But the problem of esse sui juris present in the Political Treatise has nothing to do with
those conditions. Quite the contrary, it pertains solely to modern
modem nations, in which the grounds
for the desired good (the securitas) no longer involve obedience under constrictions of metus
and spes, but rather a wisely directed utilitarian conatus.
With regard to the founding subject, he does not materialize into the figure ofthe legislator
in modern
modem societies because the latter's main characteristics (prophetic actions and the
power of the imagination) are out-of-date and inadequate for the production of securitas.
This does not entail a distanced perspective towards antiquity that might presuppose a linear
12 TP I,
1, 6. A balanced and profound analysis of Spinoza's realism in this matter can be found in
Spinoza'ss methodology (Assen: Van Gorcum, 1964), pp. 108-113.
H.G. Hubbeling, Spinoza
13 TTP T I and V.
Spinoza and Law 359
idea of progress in history. Spinoza's implicit perspective is the same as the Reformation's
view on prophetie abilities and on the Calvinist model of theocracy: the fact that legislators
oftheocracy:
always appear as archaie figures involves a political choice. Moreover, these figures are not
substituted by laie and modern
modem ones - political parties and constituted assemblies do not
belong to history's concrete horizon.
Spinoza deals with this situation in a very original way. He approaches it from the viewpoint
ofthe types ofknowledge that he had studied during his entire speculative activity, beginning
with the definitive form set in E1I40Sch2.
In the realm ofthe fundamental principles of oflaw
law and State, the second kind ofknowledge's
vicious cycle can be expressed in these terms: the esse sui juris is never self-constituted.
This is the Political Treatise's starting point: the knowledge that allows the formulation of
laws and ofpolitics is a deductive knowledge; however, this deduction does not pertain to the
second kind of knowledge, that is, to reason:
Jmperii causas,
causas. et fundamenta
fimdamenta naturalia non ex rationis documentis petenda,
petenda. sed ex hominum
communi natura,
natura. seu conditione deducenda sunt. 14
It is Spinoza himself
hirnself who makes the connection with the Ethics in the chapter immediately
following these words. Therefore, if it is necessary to recognize the continuity that Spinoza
wished to underline between those two textual references, the words we have just cited contain
an alert that should be weighed against its strongest meaning: ' ... non ex rationis documentis,
sed ... deducenda ... ' (our emphasis). In addition, the alert is in complete accordance with
the previous passage ofTP I, 4, where the separation between the two moments might occur:
'tantum ea, quae cum praxi optime convenient, certa, et indubitata ratione demonstrare, aut
ex ipsa humanae naturae conditione deducere, intendi'
intendi'.15
.15
The analysis of the fundamental laws of the State implies a deductive procedure; but this
deductive procedure is not purely rational. The meaning of this expression is so clear c1ear and
precise that it induces us straightforwardly to connect this passage with the one from the
Ethics in which Spinoza presents two distinct types of deductive knowledge - the second
kind of knowledge, or reason; and the third kind of knowledge, or intuitive science. In the
opening passage of the Political Treatise, Spinoza clearly
c1early stated that the kind of knowledge
positing the grounds ofpolitics and ofthe State is not rational deduction, which proceeds from
common notions towards the formation of universals; instead, it is the kind of knowledge
belonging to a different form of science, which proceeds always deductively from human
nature towards the essen ce ofthe singular thing.
essence
By the essence of the singular thing, we should understand here the forms of the State
that are adequate to any specific modal situation (whenever the model of intuitive science
applies to political science). Here is the heart of
ofSpinoza's
Spinoza's rejection ofutopian thought and of
16 Utopia is not so much a paradise ofthe imagination as it is a paradise of
chimerical fictions. 16
14 T, 7. For this concept of 'deduction' from human nature, see also TP VII, 2 and TP 1,4.
TP 1,7. T, 4.
15
15 lt should be noticed that the Proietti edition changes the aut into atque, based on the word en
found in the Nage/ate
Nagelate Schriften. Cf.: Spinoza, Oeuvres. V Tractatus politicus/Traite politique (Paris:
PUF, 2005), p. 90. However, Spinoza's arguments emerge clearly from the two passages of the Editio
princeps, without any need of amendments.
16 T, 1.
TP I,
360 Spinoza and Law
reason (the paradises ofthe imagination are the prophetical promises of a hereafter; but utopia
is a laie and earthly form): it is an abstract model ofsocial perfeetion deduced from a common
notion of man that includes the kindness of desires and of original impulses, as weil as the
uniform and immutable structure ofhuman nature. The use of deduction belonging to the third
kind of knowledge, unlike what utopians do, entails moving towards the inventio of oftypes
types of
order applicable to the State machinery that correspond to man's (res singulares) natural and
historical determinateness.
To deduct from human nature what truly iso On the one hand, this implies taking
Machiavelli's 'effectual truth' into account and deducing case by case the adequate form of
government
govemment from the concrete set of factual determinations of the nation's nation 's time and place.
On the other hand, it implies deducing not from a static model of human nature, but rather
from that nature or essence whose intelligibility lies in the conatus, in the appetitus and in the
cupiditas. Human nature means, then, a tendency towards self-transformation and towards
the expansion of one's potentia - not in the narrow Hobbesian sense, but in the sense refined
by Spinoza according to which human potentia increases insofar as man develops the rational
ability to understand the collective good as a linear response to the individual quest for his
own good. 17
In the Ethics, the proper deduction of intuitive science begins with the attributes; in the
Political Treatise, it begins with human nature. But it is still basically the same thing. Man
knows only two attributes, thought and extension. Intuitive deduction can occur, in theory,
from any number of attributes; but for man, who is in actuality, deduction occurs from one
attribute or the other. That which is deduced in its fullest form, that is, from both attributes, can
only be the human world deduced from human nature. Human nature is the mind's essen essence
ce
insofar as it is the actually existent idea of the body; it neither entails nor expresses other
divine attributes besides thought and extension. This idea alone is capable of explaining and
expressing these two divine attributes, which are the only attributes known to man. 18
Hence, deduction from human nature is deduction from these two attributes. Political
seien ce, the object of Spinoza's final research after the Ethics, represents the continuance and
science,
the implementation of the epistemological model developed by Spinoza and present in its
complete form only in his major work.
The key to the salvation ofignorant men is obedience. This paradigm applies widely to archaie
societies where prophetie legislators function as guides, and to modern
modem societies where the
State's progress and security are entrusted to a rationality transcending the subjects' moods
and passions.
In the Political Treatise, the concept of salvation (salus) has abandoned nearly all contact
with the semantic contexts of revealed religions, as weil as with man man's's destiny after death.
Salvation is, here, always salus communis 19
l9 in the classical
c1assical Latin sense: that of State security
EIV35Cor2.
17
Ep. LXIV.
IR
18
19 See the Index informatique: all the contexts in which salus is mentioned refer to a collective
good. On the problem of Spinoza's soteriology and its relation to politics, see L. Mugnier-Pollet,
Spinoza and Law 361
and welfare. The citizen's obedience to laws leaves aside prophetic promises or Christian
mediations, and functions as an axis or system of induced rational behaviour.
Philosophy has an undeniable role here. In this context, the author of a book on politics
conceives of actions as an agere necessarily producing effects; and, in order to do so, he
employs the connection introduced in the Ethics between having adequate ideas and being an
adequate cause. 20 The problem at hand is how to identify this role. Does philosophy simply
take on the role previously belonging to legislators? And in what way? If we focus on the
legislator figure as it appears in some Platonic texts and on the Arab medieval reception of
Plato's political thought, some points of comparison might emerge that deserve attention with
regard to Spinoza. Besides, it would be desirable to have an erudite recognition (such as the
one made by H.A. Wolfson)21 concerning the sources of Spinoza's political thought and a
possible Arab influence.
Let us say simply here that Spinoza makes his own set of coordinates out of ofPlato's
Plato's political
model. We can outline them in the following way. The fact already described according to
which all propositions dealing with politics are formulated in such a way that their subject can
either be the singular man or the civitas, interchangeably, is based upon Platonic arguments
present in the Laws and in Letter VII. These texts suggest wisdom as a value and as a condition
ofhappiness
of happiness - whether with regard to the polis or to the singular man. 22
Coherently with this, there is neither in Plato nor in Spinoza an ideal of singular perfection
or wisdom that can be accomplished in isolation and as a result of solitude. In addition to
Plato's intensive usages of participative activism and of the concept of philanthropia,23 part
IV ofthe Ethics introduces aseries of arguments (following up and developing certain themes
presented earlier in the Theological-Political Treatise)24 suggesting an essential combination
of singular rationality and collective rationality with regard to the concept of utilitas. Such
arguments contain controversial details that come near to a newly born Stoicism, as weil as
25
to other ideas. 25
La philosophie politique de Spinoza, pp. 257-265; and Alexandre Matheron, Le Christ et le salut des
ignorants chez Spinoza (Paris: Aubier, 1971), chapter TIT. ITI.
20 See the beginning ofofpart
part TIT
ITI ofthe Ethics, and especially EITII
E1IT1Dem.
Dem.
21 See, chiefly,
21 chiefiy, H.A. Wolfson, The Philosophy olSpinoza,
ojSpinoza, 3rd ed. (Harvard University Press, 1983).
22 Vll, 335d.
Letter V1i.
23 Apology 01oj Socrates, 31 b; Phaedrus, 89d-90a. I follow here all the suggestions made by
G. Pugliese Carratelli, La citta platonica, I, 1946; and in his Scritti sul mondo antico (NapIes:
412--429. With regard to the Arab reception of Plato, see the fundamental
Macchiaroli, 1976), pp. 412-429.
texts by Walzer, mostly, 'Platonism in lslamic Philosophy', in R. Walzer, Greek into Arabic (Oxford:
B. Cassirer, 1963), pp. 236-252; and 'L'eveil de la philosophie islamique', Revue des etudes islamiques
XXXVlll, 1,2 (1970).
24 TTP V (Gebhardt ed.lll,
ed. lll, p. 73): 'Societas non tantum ad secure ab hostibus vivendum, sed etiam
ad multarum rerum compendium faciendum, perutilis est, et maxime etiam necessaria'. Such themes are
resumed in propositions 35 to 37 ofpart IV ofthe Ethics.
25 The attack on the Melancholici (EIV35Sch)
25 (E1V35Sch) who praise a primitive and rustic (incultam
et agrestem) life reminds us, in a certain sense, of Petrarch's De vita solitaria, a copy of which was
found in Spinoza's library. Nevertheless, this was a carefully-weighed attack formulated entirely in an
intellectual way, even if sometimes in difficult terms.
362 Spinoza and Law
26 AI-Farabi, Compendium Legum Platonis (Corpus Platonicum Medii Aevi, Plato Arabus, vol. TIT)
Aevi. PlatoArabus, ITI)
(London: F. Gabrieli ed., 1952). ItTt is important to notice that Spinoza's work and all the documentation
pertaining to his library and to his environment are, to this day, still insufficient to determine the means
by which he was exposed to ancient and medieval culture. The comparisons we are establishing here
have the sole intention of specifying certain guidelines by which Spinoza 's political thought can be read.
Spinoza's
27 TP Xl,
XL 1.
28 TP I, 1. Spinoza's criticisms of the idea (or myth) of the golden age can be understood as
containing a possible allusion to the Platonic tradition. However, the dispute's general context does not
seem to have Platonism in mind. In addition, we should take into account Sylvain Zac's remarks ab about
out
the difference between Spinoza's and Plato's political models, insofar as the latter is based upon the idea
of the metaphysical Good, the idea of ends, of free will, and the subjection of politics to wisdom: see
S. Zac, 'Etat et nature chez Spinoza', Revue de metaphysique et de morale 1I (1964); and Id., Philosophie,
Philosophie.
Theologie. Politique dans l'oeuvre de Spinoza (Paris: Vrin, 1979), pp. 117-143. With regard to this
Theologie,
particular model ofPlatonism, which reached Spinoza's times by means of ofCicero's
Cicero's and Maimonides's
writings, there is an alternative model in the Arab sources (mostly, Averroes and AI-Farabi) that should
be taken into account. In such a viewpoint, the transcendence of the idea of good and the reference
to a free will are weakened almost to the point of disappearing. Instead, what becomes paramount
is the legislator's strong role as a private philosopher, who knows how to apply the most adequate
political solutions to the microcosm of each specific situation, by choosing one of the various forms of
ofthe
government described by Plato.
Spinoza and Law 363
On the other hand, Spinoza's political 'realism' rejects that a State's good or bad fortune
should be attributed to the rulers' good faith and wisdom. This poses a problem regarding
the relation between wise men and politics, which somehow reclaims and expands on
Plato's treatment of legislators. He accepts neither ruling-philosophers nor, strictly speaking,
legislating-philosophers. Rather, he accepts knowledge that only pertains to wise men. Only
those who are 'sui, et Dei, et rerum aetema quadam necessitate conscius'30 are able to know
how to deduce the fundamentallaws
fundamental laws ofthe State not from reason but 'ex hominum communi
natura' .31 According to AI-Farabi's Plato, the true legislator is the man who masters a specific
art pertaining to God, 'quem Deus ad condendas leges creaverit et formaverit' .32 According
to Spinoza, whether a man is determined to reach wisdom depends upon nature's necessity;
and a man who reaches wisdom (the third kind of knowledge) is able to deduce from God's
attributes a knowledge of human nature that, when combined with the factual knowledge of a
nation's
nation 's affairs, allows hirn to identify the adequate forms of legislation.
Thus disappears, as we have already mentioned, the archaic figure of the legislator, of
which the Ethics' sapiens is neither heir nor continuator. The problem at hand is no longer the
'salvation ofignorant men'33 that comes about by promises ofrewards and punishments in the
hereafter, such as those made by Moses and, after hirn, by Christ. Such saviours were sent by
God in hidden and mysterious ways. They expressed universal nature by means of a conatus
directed towards collective self-preservation; a conatus that appealed to the imagination's
imagination 's full
energy in order to produce cupiditas, self-improvement and the expansion of potentia in the
entire social body.
The new figure of ofthe
the legislator may still be seen as godsend in the modem circumstances
to which Spinoza refers. But only in the context ofGod-Nature, which determines those who
reach the third kind ofknowledge and who renderthis
render this kind ofknowledge to practical political
affairs.
What produces wise men is natural necessity. And it is also by natural necessity that the
freedom of ofwise
wise men becomes immanent divine activity in the human community. Whoever
has adequate ideas is an adequate cause. Whoever has adequate ideas with regard to the State
- in such a way that intuitive science superposes and controls res singulares - is forced by
31 TP 1,7.
31 1. 7.
32 AI-Farabi, Compendium Legum Platonis, p. 7.
33 See A. Matheron, Le Christ et le salut des ignorants.
364 Spinoza and Law
necessity of
ofhuman
human nature's deve[opment
development in forms deduced from the divine attributes.
The Political Treatise contains neither the strategy nor the method by which wise men
intervene in political institutions - mostly, in order to avoid the possibility of submitting to
any kind of normativity those who have already attained mental control over the necessary
order. This seems to us the answer to the problem from which we began.
We can say that Spinoza lived his entire life as a philosopher with politics permanentlyon
permanently on his
mind. His quest for beatitude and freedom is not simply a quest for evasive dimensions ofhis
humanism
humanism's 's central core, which is his glance at man as nos and as civitas; it is also a quest for
what is organic to man, namely that which constitutes his peak.
The animi libertas is a private virtus solely because it is not a imperii virtus, that is, because
knowledgeable men are distinguishable from rulers. The singular man who achieves freedom
ofmind neither attains it thanks to power nor applies it immediately to political power. [nstead,
Instead,
he exercises it in political science, that is, in an autonomous theoretical activity; he can then
examine the definition of power and the forms of government, but always with a degree of
autonomy that is immune to existent forms of government.
For Spinoza, freedom is the highest dimension ofhuman agency, which in turn is intervention
in the human world insofar as it is action; strictly speaking, human agency is distinct from
direct participation in the civil government.
But even ifSpinoza
if Spinoza thought ofpolitics his entire life, it is important to add that his political
thought only attains the status of science once his system is complete. On the one hand, the
Theological-Political Treatise's libera respublica is still the Socinian version ofthe State and
the prelude to Locke's notion of contract. Heterodox and anti-theocratic thinkers combine
the abstract ethical ideal that is the laic
laie development ofthe
of the Christian charitas - namely, the
idea of
oftolerance
tolerance - with a curiosity about the world and the love of science. 36 36 The imagination
is what glues civil society together - not only because revelation pivots completely around
it, but also because relations and exchanges between different nations offer a myriad of
experiences and indirect information that function as the fabric of opinion-making. Tolerance
is the locus where opinions are able to coexist, that is, where the first kind of knowledge
appears descriptively and extensively.37 The enlargement of human potentia comes about ab out at
34 TP 1,6:
T, 6: 'animi enim libertas, seu fortitudo, privata virtus est; at imperii virtus securitas'.
35 TP
35 TPII,11.
TI, 11.
36 For a detailed analysis ofthe TTP's political and ideological relations, see A. Tosei,
ToseI, Spinoza ou
le crepuscule de la servitude (Paris: Aubier Montaigne, 1984), chapter lll.
37
37 E1l40Sch2 presents two different perspectives on the imagination: the one emerging
em erging from the
senses' vaga experientia; and the one creating opinio, that is, words spoken sincerely. We are dealing
here with this second perspective.
Spinoza and Law 365
this point as a certain type of perfect spontaneity, whenever democracy is given as its most
favourable terrain.
On the other hand, the last part of the Ethics and the Political Treatise presuppose neither
democracy's advantageous conditions nor a social contract based on tolerance. The Political
Treatise, for instance, is clearly
c1early a realist document, mainly because it includes unfavourable
conditions among its presuppositions. Thus, the realistic attitude, which is consistent with an
account ofhuman passions, becomes an insurmountable factual condition.
However, any interpretation of Spinozism that took this realistic impression for a decisive
criterion between society's and the wise man's life would be too narrow and ultimately
inaccurate. Some interpreters consider that Spinoza develops an 'operativistic' conception
of politics capable of resolving the problems of human coexistence in such a way as to
allow and to guarantee the wise man's autonomous and aristocratic individuality.38 Other
interpreters go even further and regard the wise man described in part V of the Ethics as an
ascetic disconnected from the community and from politics altogether. 39 This would entail
a hierarchical structure of different forms of human life, according to which politics would
belong to the lowest level.
We have already described and perhaps even justified a different viewpoint with regard to
the figure and the role ofthe wise man. It [t remains to consider the quality ofthe wise man's
intervention in the world ofmen ajJectibus
affectibus obnoxii; a world to which he himselfbelongs, for
the man capable of the third kind of knowledge is (unlike the Stoic conception of the wise
man) never removed from everyday life and from the affects he shares with other men.
This enunciation, which transforms political science into intuitive science in his system,
seems to be articulated from two different perspectives. The first is that according to which
political science deals with institutional mechanisms. Following this first approach, the
Political Treatise is a production of balances modulating under specific circumstances.
Spinoza wishes to show that all possible forms of govemment
government can be synthesized into the
fundamental three. And he also intends to demonstrate that it is possible, in each ofthose three
fundamental forms, to identify the norm producing the balance between individual passions
and theirrational
their rational channelling, thanks to the independent mechanisms ofthe subjects' impulses.
The norm of security emerges out of this set of arrangements, and Spinoza tries hard to
demonstrate that such a norm is accomplishable even in the least favourable of circumstances.
The State that is constituted in accordance with the norm of security consists in the
actualization of the first and narrower sense of esse sui juris. But we have seen that there is
a second sense of esse sui juris related to rationality. The second perspective on the intuitive
science ofpolitics arises out ofthis second sense.
If human nature - which is the starting point from which political science comes about -
[f
comprises the dominant connotations ofthe affects, then affects are unable to condemn men
to be massa damnationis. The great originality of Spinoza's view on the motions ofthe mind
consists in the fact that they have a double status, both passive and active - thus the very
expression, ajJectibus
affectibus obnoxii, indicates a permanent human condition while containing this
duplicity and this transformative potential.
38
3& See M. Corsi, Politica e sagezza in Spinoza (NapIes:
(Napies: Guida, 1978), chapter 11.
39 See, for instance, C. Vinti, Spinoza. La conoscenza come liberazione (Rome: Ed. Studium,
1984), pp. 62-67.
366 Spinoza and Law
DAVlD WEST*
Australian National University
M
Muchuch ofthe liberal tradition in political thought has shared Isaiah Berlin 's fears about
Berlin's
al1 positive concepts ofliberty.
all orIiherty. Indeed these fears seemjustified in relation to Man
Marx and
HegeL However,
Hege\. However. the danger of a tyrannical paternalism derives not from the concept
of positive freedom itself but from the reification of the self associated with
Spinoza' s monism and his notion of individual conalus make any
rationalism. Spinoza's
Consequcntly his account of positive
rationalist reification of the self implausible. Conscquently
freedom enriches rather than undermines the commitment to negative liberty, liberty. whilst
also helping to explain his ability to reconcile liberal toleration with the strikingly
Hobbesian premisses ofhis political philosophy.
Debate 285
values and ways of life and that, therefore, people must be allowed to pursue
whatever goals and preferences they may happen to have, however much we
might disapprove of them. 3
ofthem.
Against Berlin's attack on positive freedom and against the substance, though
perhaps not the spirit, of the tradition of negative liberty,
Iiberty, I shall argue that
Berlin's account is only partly justified. It is large1y
largely justified in the case of both
Hegel and Marx who can with some justice be interpreted as philosophers of
'objective reason'. Their basic principles may indeed lead to unpalatable
conclusions. By contrast, Spinoza's account of human freedom differs in two
crucial respects from the syndrome identified by Berlin. In the first place, pi ace,
Spinoza's metaphysical monism and his account of individual conatus render
implausible the rationalist assumption of a single, correct way of Iife. Secondly,
oflife.
the account of positive freedom which Spinoza builds on this metaphysical
foundation does not encourage the despotie impersonation wh ich so worries
which
Berlin. 4 On the contrary, this central feature of Spinoza's philosophy explains,
at least in part, his ability to reconcile a defence of liberal toleration with the
explicitly Hobbesian premisses of his political philosophy.
ofhis
286 Deba/e
Debate
which 'calculates and aims at what will satisfy it in the long run', a 'real', or
'ideal', or 'autonomous' self which is contrasted with 'irrational impulse,
uncontrolled desires, my "Iower" nature, the pursuit ofimmediate pleasures, my
"empirical" or "heteronomous" self, swept by every gust of desire and
passion'.~ This catalogue of terms serves to identify a distinctively positive
passion'.B
notion offreedom. Negative freedom exists when we are able to act according to
our will. Positive freedom requires beyond this that the will itself is formed
autonomously. If what I want is the product either of external interference or
subjective incapacity then I cease to be truly 'my own master'.9 However, Berlin
goes on to describe a further and more sinister transition. Paternalistic actions
may, Berlin admits, sometimes be justified. However, the paternaiist is Iikely likely to
liberties, if he can plausibly claim that his actions are not only
take excessive Iiberties,
really in my interests but actually willed by me, because they correspond to the
real wishes of my true self. In other words 'if it is my good, then I am not being
coerced, for I have willed it, whether I know this or not, and am free - or "truly"
free'.. 1010 This transition
free' transi tion is particularly insidious when the real self is understood as
a collective entity 'identified as being the "true" self which, by imposing its
collective, or "organic", single will upon its recalcitrant "members", achieves its
own, and, therefore,
therefore, their, "higher" freedom'.
freedom' .111 1 This collective entity may take a
variety of forms - 'a tribe, arace, a church, aastate'.12 state'.'2 It is this 'monstrous
impersonation', Berlin claims, which is 'a t the heart of all political theories of self-
realization' and wh ich is implicated in the tyrannical regimes of fascism and
Stalinism. I]IJ
Indeed, something Iike like this absorption of the individual into an organic
collective is perpetrated by the main targets of Berlin's criticism, the Hege1ians. Hegelians.
At the heart ofwhat has been called the Hegelian turn in philosophy is an account
of the social constitution of the individual wh which ich underlies Hegel's notion of
positive freedom. The individual's impulses and inclinations are understood not
as given prior to society but rather as formed or constituted within it. This fact
allows the theoretical reconciliation of universal and particular, individual and
society, inclination and morality. The moral or rational will can be conceived as
something not necessarily opposed to and imposed upon a pre- or asocial
individual nature, but rather as a rationalization of inclinations which itself
produces the individual. The will, in Hegel's words, is 'particularity reflected into
individuality'.14 In acting
itself and so brought back to universality, i.e. it is individuality'.'4
•, Berlin, 'Two
Two Concepts ofLiberty', p. 132.
9 positive freedom does not
As Berlin describes it the distinction between negative and positiveJi'eedom not,, of
or course,
correspond to the distinction between negative and positive rights. Positive rights are generally held
to support claims to material resources, whereas negative rights simply require the non-intervention
of others.
olhers. Thus a negative right to life implies a duty on the part of others not 10 to murder, whereas a
positive right to life implies a claim to resources in the form offood, shelter and so on. The distinction
bctwecn negative and positive rights is at issue in the weil-wo rn argument between libertarians and
between
'social' liberals. Libertarians are satisfied with the strictly
strielly negative libcrty
liberty sccured
secured by negative rights,
for example the liberty defended by Nozick's minimal state. state. On the other hand,
hand. 'socialliberals' and
liberal socialists think that genuine rights (to free speech, acccss
access to the law, equal opportunity and so
on) must be positive rights. They involve resources and therefore imply measures measurcs ofor welfare and
words. they argue that even negative liberties can only be secured by means of
redistribution. In other words,
positive rights. The significant point hefe
here is that both positive and negative rights may be involved in
the protection of negative freedoms.
10 Berlin, 'Two Concepts of Liberty', p. 134.
Debate 287
IS The unpalatable
lS unpalatablc conservatism of Roger Scruton is a contemporary manifestation of an
ofConservatism (London & New York, Penguin Books,
tendency. See his The Meaning o(Conservatism
analogous tendeney.
1980).
aclear
16 For a dear discussion ufofMarx's
Marx's critique ofbourgeois right, see S. Lukes, Marxism and Mora/ity
Morality
'circumstances of justice' see Hume, A Treatise 0/
(Oxford, Oxford University Press, 1987). On the 'cireumstanees
Nature, (ed.) L. A. Selby-Bigge (Oxford, Clarendon Press,
Human Nature. Press. 1888), pp. 486ff. Compare Michael
Sandel's parallel eritique Libera/ism and the Limits 0/ Justice (Cambridge.
critique of Rawls in Liberalism (Cambridge, Cambridge
University Press. 1982). esp. eh. I.
Spinoza and Law 371
288 Debate
Debate 289
the self. Positive freedom may, on the contrary, be defined so as to enrich rather
than to undermine the negative freedoms prized by the liberal tradition.1t
tradition. It may be
possible to provide an account of positive freedom wh ich does not rely
which re1y on a
reified view of the self. Spinoza, in particular, should be rescued from Berlin's
global condemnation of all rationalist theories of politics. He is especially
interesting because he provides an early defence of toleration but on premisses
dose to those of Hobbes. I shall suggest that it is Spinoza's
which are very elose
particular conception of positive freedom which allows hirn to avoid the
authoritarian conelusions
condusions to which these premisses have often been taken to lead.
Spinoza's characterization of government, or the 'right of supreme
authorities',, is evidently influenced by Hobbes. The natural right of 'every
authorities'
power'.20
individual thing extends as far as its power' .20 There is no moral restraint on the
power or right ofthe
of the individual prior to the contract which founds the state, for
'wrong-doing cannot be conceived of, but under dominion'
dominion'.ll.ll For Spinoza:
And so our conclusion is, that that natural right, whiehwhich is special to the
human race, can hardly be coneeived,
conceived, except where men have general rights,
and combine to defend the possession ofthe lands they inhabit and eultivate,
cultivate,
to proteet
protect themselves, to repel all violence, and to live according to the
generaljudgment of all.. For ... the more there are that combine together, the
ofall
possess. 21
more right they collectively possess."
Furthermore, the upshot of this very Hobbesian derivation of the state shares
other features with Hobbes' account. The subject's duty to obey the dictates of
290 Debate
the sovereign appears equally absolute, for 'however iniquitous the subject may
think the commonwealth's decisions, he is none the less bound to execute
them'.26 Also, although democracy is favoured as the 'perfectIy'perfectly absolute
dominion', the identification of power and right has other unpalatable
consequences. Spinoza excludes from citizenship 'women and slaves' who are
'under the authority ofmen and masters' as weil as 'children and wards' who are
'under the authority of parents and guardians'.27 The subordinate position of
women isjustified by their natural subjection to the authority of
ofmen
men as a result of
'their weakness'. The equation of right with power has the seemingly familiar
implication that power is always right.
However, Spinoza undoubtedly has a much more liberal outcome in mind. The
individual 'justly cedes the right of free action, though not of free reason and
judgrnent':
judgment':
No, the object of government is not to change men from rational beings into
beasts or puppets, but to enable them to develop their minds and bodies in
security, and to employ their reason unshackled ... In
[n fact (he
the (rue
true aim of
uf
government isi5 liberty."
Spinoza also eXcludes something like Mill's 'private sphcrc' from the thc lcgitimate
Icgitimatc
scope ofthe rule oflaw. The law should not seek to interfere with those areas of
life
Iife where the harm caused by the interference oflaw would be likely Iikely to outweigh
the benefits. For '(H)e who seeks to regulate everything by law, is more likely to
arouse vices than to reform them.,29
them.'29 By contrast, according to Hobbes' aceountaccount
of life or death
the sovereign has the absolute right oflife dcath over
ovcr his subjects, though 'by
allowing hirn to kill me, I am not bound to kill my seIfe
seife when he commands me'.)Ome'JO
Apart from this and a few other not very reassuring concessions (the right to
refuse to serve in the army 'without Injustice' 'though his Soveraign have Right
enough to punish his refusall with death') other liberties,
Iiberties, for Hobbes, 'depend on
Law,.JI We are only at
the Silence ofthe Law'.J! a1 liberty
Iiberty to do those things which the law
does not expressly forbid. The law is not constrained by any system of natural
rights. 32
J2
" Spinoza,
Spinoza. 'Political Treatise', III 5,
5. pp. 302-3.
" Spinoza, 'Political Treatise', Xl However, it is worth recalling that even J. S. Mill
XI 3, p. 386. However.
excludes 'barbarians' from the protection ofa of a liberal civilization. See 'On Liberty', in Utiliturianism.
lllilifl1riunixm.
On Liberty and Considerations on Representative Government, (ed.) H. B. Acton Aeton (London, Dent,
1972), p. 73.
Theologico-Political Treatise' in A Theologico-Political Treatise and A Political
" Spinoza, 'A Theologieo-Political
Treatise,
Trealise. XX, p. 259.
" Spinoza, "Theologico-Political
Theologico-Political Treatise'.
Treatise', XX, p. 261.
30 Hobbcs, Leviathan, II 21, p. 114.
Leviathan. 1I
" Hobbes, Leviathan, 1I
!I II 21, p. 115.
"3' Compare Roger Scruton's less than libertarian aeeountaecount of individual rights in The Meaning vi vI
Conservalism,
Conservatism. eh. 4.
374 Spinoza and Law
Debate 291
'does not consist merely in denying any real causality between the mind and the
body, it disallows any primacy of the one over the other'. This implies, in an
anticipation of theories of the unconscious, that 'the body surpasses the
knowledge that we have ofit,
of it, and that thought likewise surpasses the consciousness
ofj(.33 In this metaphysical system there is no room for traditional
that we have O[it'.33
notions offree will. Our conviction that our wills are free is based on an illusion.
For Spinoza, what we perceive as decisions of the mind are, like
ofthe Iike all other mental
phenomena, simply material processes viewed 'under the attribute of thought'.
The illusion of freedom is a simple consequence of consciousness, or more
precisely, the inevitable partiality of consciousness: 'men believe themselves to be
free, simply because they are conscious of their actions, and unconscious of the
causes whereby those actions are determined'.J4
determined'.14
There is, of course, a long philosophical tradition of 'compatibilists' who
maintain that free will can be reconciled with determinism. Hobbes hirnself is
responsible for a c1assic statement of this position but crucially for Hobbes,
firmly within the traditions of empiricism and negative liberty, Iiberty, freedom is
compatible with determinism because it applies only to the 'man' and not to the
pro vi des a c1assic statement of a negative
will. In making this point Hobbes provides
concept of freedom:
We are only unfree, on this interpretation, ifwe are prevented from doing what
we are causally determined to will. The fact that our decisions are themselves
caused, lies beyond the scope of negative freedom in this sense.
ofnegative
Spinoza's approach is very different, although it is built on a moral ontology he
largely shares with Hobbes. The basic unit ofSpinozist ethics is the individual but
this is not the individual ofthe mainstream ofliberal theory. Rather, as Deleuze
Delcuze
succinctly remarks, '(A)n individual is first of al1
all a singular essence, which is to
say, a degree of power'.36
power'36 Two famous propositions of the ethics express this
claim:
33
J] G. Deleuze, Spinoza: PractieaJ Philosoph)' (San Francisco, City Light Books, 1988), p. 18.
Praclical Philosoph}'
34 Spinoza, 'The
Thc Ethics' in The Chief Works of Benedict de Spinoza, Val.
(jf Benediet Vol. 2, translated with an
Introduction by R. H. M. Elwes (New York, Dover Publications, 1955), III 2, footnote p. 134.
" Hobbes, Leviathan, p. 110. In fact, as Michael Oakeshott has pointed out, Hobbes develops
3l deve10ps
something much more like a positive concept offreedom in his discussion ofwhat Oakeshott calls the
'moralization of pride'. Oakeshott claims that Hobbes 'was unmistakably a philosopher of the
of individuality'. See 'The
morality ofindividuality'. The morallife and the writings ofThomas Hobbes' in his Rationalism
RationaJism
Po/Wes (London, Methuen.
in Polilies Methuen, 1962), pp. 289 and 294. In an interesting way Hobbes and Spinoza
seem to have complementary strengths
strcngths and wcaknesscs:
wcakncsscs: a more dcvcloped
dcvc10pcd politieal
political philosophy with
Hobbes, a more developed moral theory with Spinoza .
.16 Deleuze, Spinoza: Practical Philosophy, p. p, 27.
27,
J7 Spinoza, 'Ethics', III 6 and 7, p. 136. This view of conatus is not very different from Hobbes'
37
description ofthe 'generall inclination of all mankmd, a perpetuall and restlesse desire of
ofall Power after
ofPower
power, that ceaseth only in death', Leviathan, p. 49.
Spinoza and Law 375
292 Debate
identifies the essential nature of any individual thing with its individuality.
individuality,
with that which makes it a distinet
distinct individual: and this is its power of self-
maintenance in relation to other things. Its virtue is its power as an
individ ual. Ji
individual."
Debate 293
Because for Spinoza ideas are modifications of my body 'under the attribute of
thought', the conclusion that 'I can only have
thought'. bave adequate knowledge of ofthe
the causes
of those of my "affections"
"affeetions" which are not the effects of extern
external
al causes' would
seem to follow. 43 So the realm of activity understood as internally caused and
togetber. Adequate understanding of
understood as adequately conceived fall together.
the causes of mental states or events is a test or criterion of internality. Passive
affections resist the understanding, they cannot be adequately conceived because
extern al to the individual. The self, if it is ruled by passive
their causes are external
affections, acts from reasons which are not its own and therefore acts less than
rationally and less than freely.
Significantly, Spinoza is not committed to the view that freedom consists
simply in the outright mastery of the passions by reason. Only the one eternal
substance 'God or Nature' could be completely determined by internal causes
and, in that sense, completely free. By definition, the one substance includes
everything and so cannot be determined by anything external to itself. The
individual human being, on the other hand, is only a small part of nature and can
never be completely independent of external influences. However, the extent of
the individual's independence from external causes is subject to the exertions of
the understanding. In Spinoza's system rationality or understanding is not
merelya symptom of freedom, but also a means of attaining it. The improvement
of the understanding is a form of emancipation. Everyone has 'the power of
clearly and distinctly understanding hirnself
c1early himself and his [passive] emotions, if not
absolutely, at any rate in part, and consequently of bringing it about that he
should become less subject to them'.44 In the process of understanding my
affections IT achieve at least partial freedom, because through the exercise of my
294 Debate
when we encounter an external body that does not agree with our own ... it is
as ifthe power ofthat body opposed our power, bringing about a subtraction
or a fixation; when this occurs, it may be said that our power of acting is
diminished or blocked, and that the corresponding passions are those of
sadne.u . .. when we encounter a body that agrees with our nature, one whose
sadne.vs
relation compounds with ours, we may say that its power is added to ours; the
alfect us are those ofjoy,
passions that affect jay, and our power of acting is increased or
enhanced."
enhanced. 4l
The Ethics
Ethies looks in detail at the ways in which through understanding we can
achieve the maximum degree offreedom in relation to our passions and, insofar
as we are subject to passions, how understanding can liberate us from the 'sad'
passions. Spinoza's detailed moral and psychological insights and observations
are thus contributions to the moralistes tradition of Montaigne, Pascal, la
Rochefoucauld, Nietzsche and Freud. This is a tradition of positive freedom
because it concentrates on freeing the individual from the delusions and
obsessions which are destructive of it.
How, then, is Spinoza able to avoid the authoritarian conclusions usually
attributed to Hobbes? The toleration of religious and ideological diversity is
essential because the true freedom ofofthe
the individual is inconceivable without the
unhindered exercise of the understanding. Religious and intellectual freedom is
therefore a prime goal of political organization beyond mere stability. Further,
understanding cannot be established
estabhshed once for all or by one far
for all. The particular
affections of every individual, reflecting their unique situation in the natural
order, are peculiar to them (or at least cannot be known not to be so). The
transformation ofthese affections into active emotions or joyful passions must be
performed by each and all for themselves. Spinoza's Ethies is designed to aid in
the practice ofthat
of that self-understanding. Although people can certainly be forced
to aet
ael in a certain way, they cannot be forced to believe, let alone understand
anything. However unlimited the power of the sovereign, 'it can never prevent
men from formingjudgments according to their intellect, or being influenced by
any given emotion'.46
emotion' .46
Spinoza was inevitably unaware of the many modern techniques of psych-
ological manipulation and subliminal persuasion, sophisticated forms of
advertising and so on. Still the strength of his position remains. Such forms of
manipulation could only serve to increase the passivity of the individual. They
might bring about behaviour which we take to be symptomatic ofvirtue but they
could never bring about genuine understanding or true virtue, because the only
effeelive understanding is one inextricably linked to individual will or eonatus.
effective conatus. In
4'4l
Dcleuzc, Philosophy, pp. 27-8.
Dclcuzc, Spino=a: Practical Philosoph,\',
4b
46 Spinoza, 'Theologico.Politieal
Theologico-Political Treatise', XX, p. 258. Compare Hobbes' remark on torture that
'wh at is in that case confessed. tendeth 10
'what to the ease ofhim that is Tortured; not to the informing ofthe
Torturers', Leviathan, p. 73.
378 Spinoza and Law
Dehate 295
fact Spinoza's Ethics is a major work within the tradition which emphasises the
identification of
identilication virtue and happiness. Virtue, like freedom, is understood as the
ofvirtue
optimal realisation of the individual's 'endeavour to persist in its own being'.
Ethical behaviour is in the enlightened interest of individuals. Deleuze
distinguishes ethics in this sense from morality, which 'always refers existence to
transcendent values'
va lues' and for which 'morallaw is an imperative' that 'has no other
effect, no other finality than obedience'. In general:
Morality, as distinct from ethics, is a command imposed upon the individual that
must simply be obeyed. Even the Kantian imperative is based on the
requirements of a being of 'pure practical reason' which wh ich coincides with
contingent individuals only by metaphysical fiat. Ethics, on the other hand, is a
form of
ofknowledge
knowledge which is potentially effective. Our understanding of ethics is
inseparable from the process in which
wh ich we become more active in relation to our
'affections', the process in which we become more genuinely free.
Thus, a positive notion of freedom in Spinoza
Spinoza's's sense seems, if anything, more
resistant to thc paternalistic impersonation which Berlin is so concerned to
prevent. For the tradition of negative Iiberty, the causes of the will are
unimportant, so long as we are free to do whatever our will decides. It follows
that causing someone to believe or want something is not necessarily
incompatible with her liberty. Such interference could be condemned only as the
violation of a presumed interest in autonomy or the desire to remain free of such
interference but the force of such a wish for autonomy is weak, as long as it is just
one wish amongst many. The paternaiist could still argue that he knows best how
to maxi mise the overall preference satisfaction of someone. By contrast, it is the
maximise
strength of Spinoza's account that he is in a better position to identify such
interference as incompatible with the subject's freedom, however benign the
intention. There can be no paternalistic justification for attempting to impose
understanding on the individual, because such an imposition can only increase
the passivity of the one subjected
subjccted to it and must inevitably fail to encourage the
practice of her self-understanding. Freedom in Spinoza's sense is inseparable
from the individual's overall self-fulfilment. Individual preferences are only
authenticated as truly personal prefercnces in that practice of freedom and
understanding.
At the same time, freedom in Spinoza's sense does not require the complete
isolation of the individual from external influence or social context. In fact the
exercise ofunderstanding is something the individual is unable to achieve alone.
In his political treatises Spinoza argues, as wc have seen, that in the state of nature
ofnature
our powers are neutralised by fear. The improvement ofhuman understanding is
inconceivable without the security guaranteed by the commonwealth but the
forces of the individual are further enhanced by membership in the common-
wealth, for 'to man there is nothing more useful than man' and 'our intellect
would be more imperfect, if mind mi nd were alone, and could understand nothing
bcsides itself'.48
itself'.4B Society is necessary for the full development of ofindividuality.
individuality. It
296 Debate
Conclusion
Spinoza's ethies
ethics and in particular his eoneeption
conception of positive freedom have
eonsiderable attractions. reeognize no absolute division or opposition
attraetions. They recognize
between body and mind, rationality and feeling. We are inevitably subject subjeet to both
aetive and passive emotions but the exereise
active exercise of reason ean make us less
suseeptible to the 'bondage' of the passive emotions, less at the mercy merey of whim
eircumstance. Unlike Kant, Spinoza has no problem about the interest we
and cireumstanee.
take in morality because it is in our interest to be he moral. Virtue is tantamount to
the fuHer
fuller deve10pment
development of our individuality. Virtue is the expression of individual
ofindividual
conatus or power, rationalized by the understanding. However the outeome outcome of a
rationalized conatus is potentially different for every individual and under-
exercised by everyone for themselves, so no one can
standing must be exereised justifiably
canjustifiably
impose their interpretation of virtue or the good life on another. Spinoza's
conception of positive freedom allows us to condemn forms of interference
coneeption
which, despite their apparcnt compatibility with negative freedom, it would be
implausible not to see as intrusions on liberty. On the other hand, his notion of
positive freedom, far from inviting tyranny, makes paramount the autonomous
praetiee of self-understanding. The sele
practice self, as Spinoza describes
deseribes it, is soeiable
sociable but
Soeiety is a necessary catalyst but never a
resists being absorbed into the social. Society
praetiec of frccdom.
substitute for thc practicc
Obviously eonsiderable
considerable problems are faced in the attempt to deve10pdevelop further
something like Spinoza's account of positive freedom. I have simply tried to
provide support for two broad eonclusions.
conclusions. First, Berlin's global assault on
positive freedom and rationalist political thought misses the mark as far as at
signifieant philosophical
least one significant philosophieal tradition is concerned. Spinoza's metaphysies
and ethics do not support the rationalist assumption that we can ean identify a single
of life or set ofvalues,
form oflife of values, defining the 'good life' or the 'rational' or 'real' self
and then impose it on an unwilling humanity. Individual conatus is the ultimate
and intrinsically
intrinsieaHy plural ethieal
ethical foundation for his account ofofpositive
positive freedom. It
folIows, secondly, lhalthat much of the liberal tradition may have been led astray in
its almost automatie rejection of positive freedom. 49 This is particularly
worrying to the extent that, as a result, the dangers of a negative conception of
freedom have also been negleeted.
neglected. A negative account
aeeount offreedom
of freedom eancan offer only
resistance to forms of manipulation whieh
weak resistanee which are cultural, ideological or
psychologieal. resistance to these forms of
psychological. A more resilient resistanee manipulation would
ofmanipulation
require the further development of a positive eoneeption
conception of liberty.
""' Of course.
course, a notable defence of positive liberty is advanced by Charles Taylor in his 'What's
wrang with negative liberty?',
libertyT, Philosophical Papers Vol.
Val. 2 (Cambridge.
(Cambridge, Cambridge University Press.
1985).
[20]
SPINOZA ON NATURAL RIGHTS
Theo Verbeek
INTRODUCTlON
Underlying Jonathan Israel's book RudicalRadical Enlightenment: Philosophy und and the Muking
Making of Modernity
1650-1750 are three broad elaims, claims, whieh
which in an admittedly erude
crnde and superficial
supert1cial way eould
could be
snmmarized as follows: (1) Modernity is the eontinuation
summarized continuation of Radieal
Radical Enlightenment; (2) Radieal
Radical
Enlightenment is aetually
actually Spinozism; (3) the eontribution
contribution of
01' Moderate Enlightenment to Modemity
Modernity is
negligible. Although one should be grateful to Israel tor unearthing mueh much interesting and unknown
material, there is also much
mueh ground for tor disagreement. So much
mueh is dear,
clear, evcn
even though modernity is
undoubtedly influeneed
intluenced by the Enlightenment, it is also eharaeterized
characterized by criticism
eritieism of, and uneasiness
with,
wilh, lhe Enlighlenmenl. Hume (1711-1776), Kant
the Enlightenment. Kanl (1724-1804) and Rousseau (1712-1778), who
concerned with determining the limits of Enlightenment, are doser
were all eoncemed closer to the modem
modern mind than,
say, La Mettrie (1709-1751) or the Baron d'Holbachd'Holbaeh (1723-1789). On the other hand, Marx (1818-
1883), Darwin (1809-1882) and Freud (1856-1939), to mention only the most famous ofthose of those who
shaped modem identity, protoundly
profoundly modified the Enlightenment interpretation of history, of the
human eondition,
condition, of morality, of religion.
Although Israel never really defines modernity in his book, his idea of modernity must be specific, speeific,
ancestry he aseribes to it. Sometimes he uses it in a rather
given the aneestry rat her broad sense as seeularization
secularization or
Weberian 'disenchantment' (Entzäuherung) - that at any rate is suggested hy by the way the rejection of
miracles, for example, and 'the death of the devil' figure in his story. 1 Sometimes a more aggressi vely
'radieal'
'radica!' sense prevails, partieularly
particularly where he links modernity
modemity with Spinoza, whose historical role was,
in Israel' s own words, to 'impart shape, order and unity to the entire tradition of radiealradical thought, both
development'22 - radieal thought being in turn the tradition of
retrospeetively and in its subsequent developmenr
retrospectively
atheism and libertinism, represented by philosophers sueh such as Pomponazzi (1462-1525) and Vanini
(1584-1619).3 Somctimcs modcmity
modcrnity sccms to bc no more than the faet fact that religious
rcligious and denomina-
tional
ti011al strife was replaeed
replaced by a battle of philosophieal
philosophical ideas or even more broadly that philosophieal
philosophical
ideas make an impact on soeiety a1l4 - which
society at all whieh is eertainly
certainly an aspect of modernity but is also too broad
traee it baek
to trace back to one partieular philosopher (Spinoza) or even one partieular tradition (radieal
lhoughl), let alone lo
thought), lel exdude moderale
to exclude Enlighlenmenl, whieh also aimed al
moderate Enlightenment, erealing a seeular sphere
at ereating
and banning from the public arena the diseussion
discussion of specific
specit1c theologie al problems. In any case, the
theologieal
I J. Israel.
1.1. Israel, RodiC!Jl
Radical F:nlightenment:
Rnlightenment: Philosophy l1Iu1
and the Making ofModemitv /650-/750 (Oxford: Oxford University Press.
o(Modemity 1650-1750 Press, 200
2001),
I).
218-29:
218-29; 375-405.
2 Israel.
Israel, Radical
R"diclll Enlightenment.
Enlightenment, 230.
'The list also includes Bodin.
Bodin, Bruno and Machiavelli; see Israel.
Israel, Radicill
Radical Enlightenment,
Enlightenmellt, 14.
4 Israel, Radh'ol
Radical Enlightenment,
Enlightenmem. 23.
382 Spinoza and Law
258 T. VERBEEK
actual impact of
oi' the moderate Enlightenment on contemporary society was much greater than that of oi'
radieal Spinozists; but the true connection between all these themes is revealed in a more recent artieie
article
on the circle around Spinoza:
lf
If one defines the 'Radical Enlightenment' philosophically, as I do, as a package of abstract values or
concepts, which can be said to underlay the making of western 'modernity', de{ininli
de{ininR ilit as a quesljiJr
quest.!or indi-
vidualfreedom, comprehensive toleration, freedom of expression, democracy and equality (equality, that is,
hoth racial and sexual), it is reasonably clear from a historical point of view that this package of concepts
both
originated as a projected,
projectcd, discussed and studicd,
studied, interlocking set of ideas and valucs
values in several
sevcral parts of west-
ern Europe in the period between 1650 and 1750, that is, during the Ear1y Enlightenment 55
Early Enlightenment.
This could be accepted as a working definition, even though ITdoubt whether it is an adequate descrip-
tion. So much
mueh is dear,
clear, these rights and values (individual
(individualjreedom,
freedom, comprehensive toleration,jreedom
toleration, freedom
of expression, democracy and equality) do playa considerable role in modem thinking as much as they
oj
have lheir
their origin (as a package alat leasl)
least) in lhe
the Enlighlenmenl.
Enlightenmenl. I am nOl
not dear,
clear, lhough,
though, lhal
that lhey
they were
not promoted by the moderate wing oi' of the Enlightenment, as weil or perhaps even more. The same
artide,
article, however, provides the link with radicalism
radiealism and, indeed, provides a fuller description:
Putting everything together, Israel's argument is that modemity is defined hy by a package of ahstract
abstract
values (freedom, toleration, demoeraey,
democracy, equality, ete.); that it originates in a radieal tradition of
thought (also characterized as monist, atheist, anti-magical and naturalist); and that, by allying this
tradition with the new philosophy, Spinoza became the most coherent representative of that tradition
as weil
weIl as the ultimate composer oi' of the package called 'modemity'. As a result, Spinoza's role could
be described in two different but strietly
strictly convergent ways, either as someone who provided coherence
and pcrsuasivcncss to an alrcady cxisting tradition b; by allying
aIlying it with modcm scicncc;7 or as somconc
radical conclusions. 8 In
who drew from science its most radieal Tn both cases he would, on tbis
this interpretation, be
a key figure in the history of modernity,
modemity, much more important at any rate than Descartes (1596-1650)
and the Cartesians, who, according to Israel, stopped short from drawing all conclusionscondusions from their
melhod - as it is fair lo
method to say lhey
they did, given
gi ven lhe facllhal, apart
the factthat, aparl from Arnold
Amold Geulincx (1624-1669) and
Lambert van Velthuysen (1622-1685), they usually refused to draw any practical practieal conclusions from
Descartes's philosophy. That would also explain in any case Israel's predominantly negative evalua-
tion of the moderate wing of the Enlightenment, with philosophers such as Locke (1632-1704) and
Voltaire (1694-1778), whose precise concern it was, again according to Israel, to prevent science and
scientific method from undermining the estahlished
established (moral, politieal ecclesiastical) order.
political and ecclesiastieal) order?9
In modern discourse, freedom, toleration, democracy, equality, ete. etc. figure either
eilher as subjective (natu-
ral or human) rights or as social va/ues sueh rights. lO For equality
va lues dcriving from such cquality and freedom that is
ohvious. People are equal, not in the sense that they would he
obvious. be physically equal or have equal capacities,
11
]j 'We hold these truths to be self-evident. that all men are ereated equal. that they are endowed by their Creator with eertain certain
unalienable Rights. that among these are Life. Liberty and the pursuit of Rappiness'
Happiness' Dec/aration
Declaration otIndependence
otlndependence (1776).
12 These claims are not particlllarly
12 panicularly ne\v
new for that matter. See,
See. for example, P. Verniere,
Vernü~re, Spinoza ef La
SjJinoza et pen.w?efraJ1(,:aise
tu pensee fran{'aise avant la La
Revolution, 2 vols (Paris: Presses Universitaire de France, 1954).
13 More particularly, I helieve that there is an important
importaot Neoplatonic
Neoplatonie strain in it, which Spinoza does not manage to reeoneile with
Cartesian and Hobbesian elements. See the 'epilogue' to my baok book Spilloza
Spinoza's Theologico-political Treatise: Exploring 'the ~ViIL
's Theo[ogico-political Will
o!,God' (Aldershot: Ashgate.
olGod' Ashgate, 2003).
Scc B. Tierncy,
14 See Ticmcy, The [deo
fdea of Natural Rights: Studies
Studie,I' 011
on Natural Rights, Natural Law amt and Church
ehurch Law JJ50-/625
JJ 50-/625 (Grand
Rapids: Eerdmans, 2001); see also S. Rials, La Declaration des droits de l'homme Haehette. 1988).
I'homme et du citoyen (Paris: Rachette, 1988). Natural
light must not be eonfused with naturallaw. The object
right objeet of naturallaws
natural1aws is a moral obligation (rooted ultimately in a teleologieal
conception of nature), whereas natural rights define a uniform sphere of individual freedom; cf. L. Strauss, Natural Right Riliht
and History (Chicago: Chicago University Press, 1953); M. P. Zuckert, Natural Rights and
(Chieago; Chieago (Princeton:
{md the New Republicanism (Princeton;
Prineeton University Press,
Press. 1994).
Freneh Declaratiol1
1.'i For the French
15 malter than for the American documents;
Declaration this is much less evident for that matter doeuments; see A. de Baecque, L'an
II des droits de l'homme (Paris: CNRS, 1988) and Zuckert, Natural rights.
I'homme (Paris;
384 Spinoza and Law
260 T. VERBEEK
theory can be constructed on the basis of Spinoza's philosophy.16 It would also mean that if we are to
understand, articulate or criticize modernity, our best guide is still Spinoza. However, that does not
seem
sccm to be
bc correet.
corrcct. Apart from what has becn
bccn said about the
thc Grotian-Loekean
Grotian-Lockcan tradition, most cigh-
teenth-century Spinozists combined
comhined Spinoza's metaphysics either with a contractarian theory of
morality, usually modelIed on that of Hobbes (1588-1679), or founded morality and natural right in
feelings of sympathy and remorse (like Diderot, 1713-1784)17 - which arguments Spinoza cannot
accommodate. In this paper I show not only that Spinoza has very little room for individual natural
rights, but also that it is impossible to eonstruet
construct a theory of natural rights on the basis of his philoso-
phy. Indeed, my conelusion
conclusion will be that, although Spinoza's diseussion
discussion of rights must be read as a
rcaction to contemporary
reaetion contcmporary theories of natural right (Grotius, Hobbes),
Hobbcs), it is essentially
csscntially pre-modern
prc-modcrn in
orientation. 18
According to Spinoza's Political Treatise we can adequately conceive (adaequate concipere) a finite
thing without making any claim about its existence or non-existence; in other words, the existence or
non-existence of any finite thing is not entailed by the adequate concept of that thing. 19
19 Things exist
and operate in virtue ofthe eternal power of God (Nature), who alone exists in virtue of his own power
ofhis
(and whose existence is necessary). According to Spinoza this makes it easy to explain the notion of
natural right. God's
God' s right is God'
God'ss power in so far as it is 'absolutely
'absolutcly free'
frcc' (which of course it is
always). So each natural thing ohtains
obtains from Nature as much right as it has power to exist and operate;
indeed, its natural right is the free use of its natural power:
By RightofNature (Jus Naturae) I understand the very laws orrules of nature (ipsas naturae leges seu regulas)
Right of Nature (lus
in virtue ofwhich
ofwhieh an
all things happen, that is, the very power ofnature (ipsam naturae potentiam). So the natural
right of nature as a whole and therefore of every individual thing extends as far as its power. Consequently,
whatcvcr
whatcver a man docs
does in virtue
virtuc of thc laws of his naturc, is donc
done with thc fuHcst
fullest natural right; and ovcr nature
naturc
he has as mueh
much right as his power can aehieve
achieve (quantum pOlentia
potentia valet).20
valel).2o
Aecordingly,
Accordingly, Spinoza' s notion of natural right involves three distinct claims: (1)
(I) a finite thing is not
its own cause (because we can adequately conceive a thing without having to believe that it exists);(2)
it owes whatever it is to God (Nature); (3) the rights it enjoys are identical with its natural powers,
which are as free as nature itself, that is, as God. Straightforward though they seem, each of these
elaims dittlcult questions. Let us study them a little eloser.
claims raises difficult closer.
Again, according to Spinoza, adequate eoneepts
concepts of finite natural things do not entail existential
claims; the existence (or non-existence) of a finite thing cannot be deduced from a concept of that
according to Spinoza a possible thing is neither an item in a logically possible world
thing. However, aceording
(something that can be conceived without eontradictions
contradictions but may be impossible given the laws of the
actual world), nor a possible
possihle item of the actual world (something not contrary to the laws of the actual
262 T. VERBEEK
tlnite things were no more than modi of God the claim would
hirn, but that of whole and parts - if finite
him,
be anything but obvious and probably false. 27 Yet, the model of whole and parts does not work
in the particular case 01'
partieular ease of freedom. Even if I am free, that does not entail that my arm or my nose is
free; indeed, if either was, that would diminish my eontrolcontrol and as a result my freedom. So the
ractthat
faet (Substance, Nature) is Jree
that God (Substanee, necessarily imply that parts 01' God are also free.
rree does not neeessarily lfee.
More importantly, it is impossible for a finite thing to be free in the exaet
exact way in which
whieh God is free.
God is free in the sense that he 'exists in virtue of the neeessity
necessity of his own nature' ,28 whereas the
very finitude of a thing entails its being entirely dependent on other things (the conditionality claim);
case, Spinoza apparently means to claim that whatever a
that is, its being essentially unfree. In any ease,
is or does is by definition in aeeordanee
thing is call this the universallegitimacy
accordance with natural right. I eall
claim. 29
2Y
Spinoza' s analysis of natural right clashes with some fundamental intuitions eoneeming
eoneerning the use of
the term right:
27 Apart must share some properties with the whole of which it is part; properties do not have the properties
praperties of the thing to
ta which
they belang.
belong. An arm or a leg shares so same
me properties at least with the body to which it belangs;
belongs; but the yellowness of a thing is
not itself yellow. The language of whole and parts is explicitly used in the parallel text of TTP, xvi, xvi. 2, 1Il,
111, 189; see also the
comments of J. Bennet!, A.
1. Bennett, olSpinoza's Ethics, (Indianapolis: Hackett,
A Study o!'Spinow's Hacket!, 1988),92-6.
28 Elh i, der. 7, H, 46; prop. 17, cor. 2, H, 61.
Z() Both the equality claim and the universallegitinzac."
29 universallegitimacy claim figure in varialis work; see esp. Eth i, prop. 33
variaus ways in Spinoza's work: 33,,
schol. 2, H. 74-6.
H, 74--6.
31'The
30The notion of norln
norm is used only in TlE §38, H, 15-16; §§43-5, H, 17.
31 See my Spinoza's Theologico-political
177eologico-political Treatise
Treatise,, eh. 1.
32 Eth i, app., H,
H. 82.
Spinoza and Law 387
NATURAL RIGHTS
A right is usually defined as a legitimate power (jreedom, claim, privilege or immunity).33 It is ealled called
natural if its legitimaey
legitimacy does not depend on a positive law (even though natural rights ean can and must be
proteeted by positive law) but is an inalienable fealure
prolecled feature 01'
of human beings, regardless 01' lheir
their age, sex,
ete. Moreover, natural rights are supposed to be of a higher order than positive laws, and
nationality, etc.
so ean
can ovemlle
overrule them or be a reason for ignoring them - astate that violates natural rights provides its
citizens
eitizens with a legitimate motive for disobedienee
disobedience and eventually revolt. Finally, natural rights protect
proteet
individuals, usually against the state: I have an individual right in the integrity of my body, in the
choice
ehoice of my religion, in the pursuit of happiness, etc.,
ete., no matter what the state would like
Iike me to do or
what would be 'good' for the state - indeed, we expect expeet the state to proteet
protect those freedoms as long as
thcy do not intcrfcrc
they thc fundamcntal
interfere with the fundamental rights of othcrs.
others. Any thcory
theory of natural rights should provide
an answer to two questions: (I) (1) why (and to what extent) are there universal natural rights, that is, why
do human beings naturally enjoy powers and/ar and/or freedoms which others should unconditionally
respect;
respeet; (2) why (and to what extent) do these rights overrule the right of the state? Let us see how
these questions are dealt with by Spinoza.
According
Aeeording to Spinoza good and evil are a measure ofthe utility of a thing (situation, aet)act) as compared
eompared
to other thin~s - utility in the broad sense that we call eall good whatever we believe promotes self-
preservation.. 4 All eonscious
preservation.· conscious willing is no more than the mental manifestation of a more fundamental
drive, wh
which
ich Spinoza ealls
calls conatus - that is, the attempt to preserve oneself. 35 To 'will' something is
the rationalization of a drive which in itself is neitherrational noreven conscious.
itselfis eonscious. 36 Accordingly,
Aeeordingly, reason
(which, aU, is no more than a seeondary
(whieh, after all, secondary phenomenon) cannot be the source souree of human right:
ofhuman
Ifhuman
If human nature were such that men would only live in accordance with the precepts of reason, then natural
right as proper to
to the human species would be determined only by the power of reason. Actually men are led
powerofreason.
by blind desire (cupiditas) rather than reason, so man's
man' s natural power, or right, is not determined by reason
but by any motive that makes hirn act and by whwhich himself37
ich he tries to preserve himself. 37
There is no specit1c
specific human right; that is, no freedom or power each and any human being should enjoy
simply for the sake of being human - in any case, the fact
faet that human beings are said to be rational
cannot count as the source of such an alleged right. In brief, whatever the motive of his action, it is
always in accordance
aeeordance with natural right.
This theme receives many variations:
Men are not naturally determined to act in accordance with the rules and laws of reason but are born in
complete ignorance of them; before they have 1earnt
tearnt to live in the right way and acquired the habit of virtue,
the greater part of their life is over. 38
38
Wise or ignorant, man is always apart of nature, so whatever makes him act must be referred to
to the power
50 far as this is cut out (definiri) by the nature of this or that man 40
of nature, in so
264 T. VERBEEK
YERBEEK
- that is, by each man's conatus. As a result, naturallaw forbids 'no quarrel, no hatred, no anger, no
deceit - in sum, nothing that inclination (appetitus) inspires' .41
That all this is direeted
directcd against the thc naturallaw
natural law tradition (and the eoneeption
conccption of natural right that
started to emerge from it, for example, in the work of Grotius) is fairly obvious. It is not dear, clear, though,
what precise point Spinoza intends to make, if only because he also uses expressions like dictates of
reason, guidance of reason and rules ruZes of reason 42 - all of whieh
which are as typical
typieal of that tradition as natu-
rallaw and natural right themselves. Spinoza' s point could just be that as a matter vf offact reason does
not play an important role in most people's lives; that quite often it does not play any role at all; that
reason is not necessarily
neeessarily stronger than the other powers that govern human behaviour (such as desires
and passions). Presumably Grotius would not be impressed by that argument, his own point being, not
that as a matter offact men invariably use their reason, but that they should shouZd use their reason. Not only
according to hirn, right reason (recta ratio) the source
is, aceording souree of moral intuitions; he even explicitly allows
tor a tension between individual human nature, which may be evil, and universal human nature, which wh ich
requires us [0lo be jUS1. 43
Spinoza undermines Grotius's view in at least three ways. By Ey claiming that every man is perma-
nently and neeessarily
necessarily oceupied
occupied with the preservation ofhis own being (conatus), Spinoza implies first
of all that man's essen
essencece is not reason, but conatus. Clearly conatus is what he calls the actual essence
(essentia actualis), not just of human beings, but of all finite things.44 Again, Spinoza's point might
just be that man is nothing exceptional; that the laws that apply to hirn are not different from the laws
that apply to other things - in brief, it may be just another expression of the equality claim.
Morcover, Spinoza sees reason, not as a source of intuitions (moral or otherwise), but as instrumen-
Moreover,
tal. Reason cannot itself be a motive but is subservient to other motives, that is, to desires and
passions, which in turn are rooted in the cunatus.conatus. So people 'will' or 'desire' things, never because
they are prescribed
preseribed by reason but because they believe that in that way they better preserve them-
4S At best, reason indicates the ways in which an alleged good can be reached, so behaviour is
selves. 45
rational whenever it achieves whatever it is meant to achieve because it was based on an informed
judgement.46
Finally, by redueing
rcducing right to powcr,
power, Spinoza implies,
implics, as he
hc himsclf puts it, that 'it is only right
that big fish eat !ittle
little fish ,47 -- in other words, that, although in a way all things are equal, their
fish,47
rights are not equally distributed. A fly, t1y, with less power to exist than an elephant, would have less
right to exist than an elephant; a rieh rich and healthy man, with more power to exist and act than some-
one who is paarpoor and sickly, would have more righllO exisl ccrteris cceteris paribus; males, who have more
physical power than women and children, would have more rights, etc. 48 Men are equal only in the
sense that they are all subject to the same explanatory laws; they are not equal in the sense that they
would have equal rights, that is, equal powers. Indeed, they have no equal powers, so have no equal
rights.
However, even though Spinoza consciously rejects contemporary foundations toundations or theories of natu-
ral right, it is not immediately cleardear whether he also rejects natural rights as such. He probably does,
4 1 TP
41 ii,
ii. 8, IV, 10.
iv, prop. 35,
42Eth iv. 35.11,232; 65-6,11.259-60;
TI, 232; prop. 65-6, eap. 25, 11,
TI, 259-60; app. cap. TI, 272-3; v, prop. 10, schol,
schal, 11,
TI, 287-8; prop. 20, dem., TI,
11. 292;
Il, 207.
dem., 11,207.
prop. 41, dem..
43 H. Grotius,
43H. belli ae paeis.
Gratius, De iure be!li paeis, prol. §22, 9/1,
9/T, 97. Quotations from Gratius' s De iure belli ae paeis refer to
fram Grotius's ta the edition of P.
Malhuysen (Leiden:
C. Molhuysen (Leiden; Sijthotf.
Sijthoff, 1919). English translations are taken hom from the London edition of 1738, reprinted
replinted for the Liberty
Libelty
Fund with an introduction by R.]. R. J. TuckRights (~l",'aral1d
(~f'War and Peace,
Peace, 3 vols, Natural LmvLaw und
and Enlightenment Classics (Indianapolis:
(lndianapolis:
Libelty Fund, 2005).
Liberty
44 Eth iii, prop. 7, 11,
44F.th prap. 4, dem., TI,
TI, 146; iv, prop. aet"al essence,
11, 213. For the term actual essenee, see F. Suarez, Metaphvsicae
Meraphysieae disputationes
di.\jJutatirmes xxxi,
11, edited by C. Berton (Paris: L. Vives, 1856,
2, 11, 1856, repr. Heidelberg: Olms, 1965),
1965),11,232.
TI, 232.
45 Elh iii, prop. 9, schal., II, 148; prop. 11, schal.,
45 schol., II, 148-9.
exp1ained in two pairs of propositions
40 This is explained
46 pro positions and corollaties Ethics: Eth iv. prop. 65-66 (with corollaries);
corollaries of the Ethies: corollaries ); see also TIE
§12-13, 11,H, 8.
TTPxvi,
47 TTP TT1, 189. Although eorreet
xvi, 2, 111, referenees to elassieal
correet in themselves, the references c1assical authors in the editions ofGebhardt and Akkerman
are irrelevant,
ilTelevant. given the fact that the expression is proverbial in al1 all modem European languages, meaning that the rieh inerease
their power andamI wealth at ut the cast
cost of the poor.
4S For the 'natural' inequality of men and warnen, warnen. see TP xi, 4, 4. IV, 89-90.
Spinoza and Law 389
Nobody will ever be able to transfer his power and consequently his right so completely that he ceases to be
human; nor will there ever be a sovereign who manages to have all things done as he wants them. In vain he
would command a subject to hate someone who has obliged hirn by a favour; to love sorneone
someone who has done
him
hirn wrong; otfended by offences or not to desire to be free from
wrang; not to be offended fram fear - and other such things as
necessarilyfollowfrom human nature. 50
The
TI1e rights we are entitled to under all circumstances (and the only ones that are literally inalienable)
would be the powers that follow from human nature and are therefore inherent to someone's being
human - these cannot be destroyed, nor interfered with, given the fact that they follow from human
nature.
nalure. More particularly,
parlicularly, the
lhe examples given hy by Spinoza suggesllhallhis
suggest that this must be
he interpreted
inlerpreted as lhe
the
totality of mechanisms we call the human mind. The power of feeling and thinking would be he an
inalienable feature of human beings and for that reason an authentic human right.
helieves that the human mind is nothing but the idea of an actually existing human
Actually, Spinoza believes
body - its contents are primarily determined by the body to which it belongs. 51 Accordingly, the mind
is as much determined by extemal forces as the body to which it belongs and of which it is a percep-
tion. 52 An individual's alleged right to feel and to think is actually inalienable only to the extent that
thc
the forccs
torces working on his body, and conscqucntly
consequcntly on his mind, cannot bc controllcd
controlled by othcrs.
others. Of
course, they can and, what is worse, they are, most ofthe time, not only in the trivial sense that by, say,
playing loud popular music others give us sensations that we would not have without them or that other
people can be a cause of grief and anger, but also in the more important sense that people can be
deceived, manipulated or indoctrinated by others - as Spinoza hirnself himself is the first to admit fortor that
matter. S3
53
In this case in particular,
particulaI', the distinction between right as (natural) power and right as (legitimate)
freedom is pertinent. One üne can elaim
claim that under all circumstances humans have the natural power to
feel and to think (in the broad Cartesian sense of having some torm of awareness), so that if we are
confronted with a being heing which, although in all other respects it resembles a human being, is no
longer able
ahle to feel and to think, we say that it is not a human heing
being (but
(hut a corpse or a dummy). Of
course lhethe fact thal
that as long as they live, human beings are by definition capable of 01' feeling and think-
lhink-
ing does not mean that in their feelings and thoughts they are free (no more than people are free to
move simply because they have legs). Moreover, the very existence of psychologie psychological al laws makes
people unfree because anyone knowing those laws also knows how to manipulate other people's
minds. In so far as feeling and thinking are no more than natural powers they do not constitute free-
doms. Inversely,
Inverscly, in so far as feeling and thinking are seen as freedoms, they can be granted only to
266 T. VERBEEK
those who manage to be free in their use of them, that is, to people who, instead of being led by the
imagination and the passions, have, by assiduously cultivating their reason and intellect, acquired
moral and intelleetual autonomy. Therefore, feeling and thinking are a souree of freedom only for
philosophers; they are not a natural, that is, a universal, right, but at best a group right, which more-
over is reserved for philosophers.
By contrast, like all Machiavellians Spinoza believes that the mechanisms of
Ey the mind are an indis-
ofthe
pensable tool in the hands of the sovereign and the very foundation of his right:
He has another under his authority who keeps hirn him imprisoned; or has taken from frorn him arms and means of
defence or escape; or has inspired himhirn with fear; or in the past has so attached him
hirn to himselfby
himself by favours that
he would rather please his benefactor than hirnself
himself and live after his own. He that has another nnder
under anthority
authority
in thc first
tlrst or the
thc second of these ways holds but bis
sccond ofthcsc his body.
body, not his mind.
rnind. But in the
thc third or fourth way he
hc has
made dependent on himself
hirnself the mind as weil as the body of the other - but only as long as the fear or hope
lasls for
tor if
ir lhose feelings
reelings are no longer presenllhe independenl 54
presenl lhe olher is again independenl. 54
In so far as it can never entirely consist in physical power, the right of the sovereign rests to a large
extent on his ability to manipulate the minds and feelings of the citizens. Obedience being the only
thing that matters it is even his task to do so gi yen the fact that obedienee
obedience and respeet
respect are 'not so mueh
much
a matter of observable behaviour as an internal act of the mind'. For only 'he who wholeheartedly
resolves to obey another in all his eommands
commands is fully under another's authority and eonsequently
consequently he
who govems
governs his subjeets'
subjects' minds has the most powerful control'. The realization of that ideal is far
from impossible: 'There is no absurdity in conceiving men whose beliefs, love, hatred, contempt and
power', even though 'command cannot be exer-
every single emotion is under the control of sovereign~ower',
cised over minds in the same way as over tongues'.-
eised tongues' .555 As a result, the only individual natural right
aeknowledged
acknowledged by Spinoza ean aetually be exercised only under very specifie
can actually specit1c eonditions
conditions only and is
eertainly
certainly not universal. Spinoza's argument amounts to asophism: in his philosophy there is simply
no room tarfor natural rights in the sense of legitimate powers or freedoms.
Nonetheless, it eould
could be the case that on the basis of Spinoza'
Spinoza'ss philosophy a theory of natural rights
ofnatural
can be constmcted.
constructed. In principle there would be two ways to do that: either with reference to the partic-
ular dignity of human beings (status approach), or with reference to the (useful, pleasant
pIe asant or rewarding)
consequences (consequentialist or instrumentalist or utilitarian approach) 01' or respecting
respecling natural
rights. 56 Let us first deal with the status approach.
The status approach relies on the idea that man enjoys a specific dignity; that he is not a thing among
other things, nor an animal among other animals; and that he should not be treated either as a thing or
as an animal. 57
57 This claim is typical of the natural law tradition. According to Grotius, fortor example,
what distinguishes men from animals is that in man the instinct of self-preservation is supplemented
by moral intuitions, rooted on one hand in man's social nature, on the other in right reason, that is, in
man's
man' s capacity ofthinking
of thinking in general terms, because this allows men to devise general mIes
rules and prin-
ciples, which they apply equally to themselves and to others. For even though animals can also 'forget
'target
a little the Care of their own Interest, in Favour either of their young ones, or those of their own kind',
Grotius attributes this to 'some extrinsic intelligent Principle' (that is, to God), because animals 'do
not shew the same Dispositions in other Matters, that are not more difficult
diftlcult than these' .58
,58 Accordingly,
right reason provides man with a unique moral dignity. Basically that is the position of all naturallaw
theorists.
theonsts. 59 According to Locke, the Law of Nature, that is, Reason, 'teaches all Mankind, who will
but consult it, that beingall
being all equal and independent, no one ought to harm another in his Life, Health,
Liberly or Possessions' .60
Liberty .60 By identifying
identi1'ying Laws of Nature with
ofNature wilh Laws of Reason even Hobbes acknowl-
ofReason
edges the specific status of humans as moral beings: Not onll r
onl do Laws of Nature cover human behav-
judgement.66 In a slightly different way, finally, one
iour only; their outcome depends on an act of judgement
finds the general point also expressed by Kant (1724-1804), who claims that the fact of being able to
subject oneself to a general rule gives man Würde (moral dignity);62 that reason (Vernunft) turns
humans into Zwecke an sich (aims in themselves), that is, into moral beings or persons (Personen).63
Clearly, the equality claim makes it impossible for Spinoza to adopt the status approach. By identi-
fying natural right with conatus, that is, with what man has in common with othcr finitc bcings,
Spinoza rejects that approach as explicitly as he can. According to him, hirn, the status of men is not
different from other natural things - and although this may be a useful reminder, also in moral
respects, it makes it impossible to use man' s specific
specit1c status and dignity as the foundation of natural
rights.
However, perhaps we should not dismiss the status approach too easily. To the extent that Spinoza
allows for
tor a special relation of man to God (Nature), which he calls intellectuallove of God, he does
ofGod,
sccm to providc human bcings with an cxccptional status; indccd, it is also in that particular contcxt
that he most often lapses into nonnative
normative (perfectionist) language. Speaking of the Divine Law, tor for
example, he claims that,
The 1'actthat
facllhal we have an inlellecl,
intellect, which is also 'the
'lhe best
besl part
parl 01' ourselves', provides us with
wilh a special
mission, perhaps not with respect to others (that would remain to be seen), but in any ca se with respect
case
ourselves - it is only by cultivating our
to oUfselves good.65
OUf intellect that we reach the highest good 65 As a result, we
should perhaps come
co me back on our claim that Spinoza cannot accommodate the status approach.
Spinoza' s philosophy is controversial and difficult to interpret. 66
Needless to say, this part of Spinoza's
Fortunately, the only question that detains us here is whether it allows a different approach to natural
rights. In any case, the question is not whether this doctrine is consistent with the rest of Spinoza'
Spinoza'ss
philosophy - I am not
nOl sure lhal
that it
il iso Nor whether
whelher according loto this
lhis theory
lheory the
lhe wise habitually
habilually do things
268 T. VERBEEK
67 TIE § 108,
67 II, 38-9. The distinetion
108,11,38-9. distinction between reason and the intelleet
intellect is fundamental; cf. TIE §90, 11,II, 33; Eth ii, prop. 49, sehol.,
schol.,
TI,131.
Il. 131.
TlE §96,
68 TIE §96,11, cL §92, 11, 34.
11, 35; cI.
69 TlE §75, 11.
6'!TIE 11, 28-9; TTP i, 2,2,III, III, 59-60; Eth ii, prop. 45-47, 11,127-9.
Ill, 15-16; iv, 4, Ill, 11, 127-9.
\ve do not make a distinction between the imagination and the intellect we believe that whatever we imagine easily is
70 'Tf we
clear and thereforc
more elear therefore better understood, whereas
whcrcas all wcwe aetually
actually do is to haye
have an image of somcthing.'
something.' (TIE §85-7, Il, TI, 32-
§90, Il.
3; §90. TI, 33). The idea (image) of Santa Claus is cleaf clear and distinct:
distinct; it beeomes
becomes eonfused
confused only ifwe belieye
believe that Santa Claus
rather, we become
exists, or rather. beeorne eonfused
confused ifwe
if we haye
have to explain how this tlgure
figure is embedded
ernbedded in the actual world; TlE,TIE, §62, 11,24.
11, 24.
The general idea of thing or being or the abstract idea of being or existenee is not dear eonfused and
clear and distinct at all but confused
obscure; T1E TlE §55, 11, 20-1. The fact that cleamess
§55,11, clearness and distlncfness
distinctness as such is not a criterion for truth is Talso Spinoza's
rejeeting the first 'sign' usually alleged to warrant prophecy; TIP
reason for rejecting rny Spinoza's Theologico-
III, 31; see my
TTP ii, Ill,
lj/,!itical. Treatise, eh. 3.
I?,olitical. Treatise.
TTP, 111. 5,
TTP. 111, lll, 46-7.
5.1II.
Spinoza and Law 393
72 Human laws have nothing to do with the divine law (that iso is, the injunction to eultivate
cultivate our intellect);
intelleet); TTP iv.
iv, 5, 111,
1Il, 61; freedom
of mind is a private virtue; TP i,i. 7, IV, 6; cf. ii.ii, 22, IV, 13-14; iii, 10, IV, 18-19.
tenllinological problems (Verstand and Vemunti
73 Even if we set aside terminologicaI
73 Vernunft vs. ratio and intellectus).
inteLlectus), Spinoza's position cannot be
eompared to Kant's.
compared Kau!'s. Kam
Kaut believes that Verstand (01' (ofwhieh Vernunft is a particular
which Vernunti partieular use) is a faeulty
I'aculty (Vermögen). whieh as a result
(Venniigen), which
is prcscnt
present in cvcry thinking bcing (so cvcry human bcing being is csscntially vernünftig):
vernünftig), whcrcas according to Spinoza thcrc are no na
faculties;
faeulties; the intellect
intelleet does not exist before it emerges from reason, which whieh in turn is no more than a peculiar
peeuliar use of the imagination
ofthe
rational; nor da most of them achieve intelleclual
(so most human beings are not rational: infellecJual competence).
74 See Eth iv, prop. 24-5, TI,
11, 226-227; prop. 35, eor. 1-2, TI, 233. By ordinmy
cor. 1-2,11,233. ordinary morality
l1!orality I mean the mies
rules and principles that guide
one's behaviour towards others, not the theory of the Highest Good (intellectuallove of God).
75 TP ii, 13, IV, 11; TTP v, 7, 111,
75TP TTT, 73; xvi, 6-7, 111,191-2;
TTT, 191-2; Eth iv, prop. 37, schol. 2, IL 11, 237-9.
76 See, for example, j,
76 C. Smart and B,
J. C
J. j, Williams. Utililarianism:
B. Wil1iams, Ulifitarianism: For and Againsl
Against (Camhridge;
(Camblidge; Camhridge
Cambridge University Press,
1973); W.w. Sinnott-Armstrong, 'Consequentialism' in The Stanford Statt/im] Encyclopedia orPhilosophy
otPhilosophy (spring 2006 edition), edited by
E. N. Zalta;
ZaIta; http;//plato.stanford.edu/archi ves/spr2006/entries/conseq uentialisml.
hup;//plato.stanford.edularchives/spr2006/entries/consequemialisml.
77 Cicero uses the image of the hand of (~r rohhers
rohher,v to i11ustrate the idea that no association of men can exist without an elementary
form of justice (De ojJiciis,
ofjustice off;ciis, ii,
ii, 11,40). The idea was re-used by Grotius, who, however, ascribes it 10 Aristotle; De iure belli, pro!.
to ArislOtle;
23, 10, Rights 01'
23. or War and
alld Peace, I, 98.
394 Spinoza and Law
270 T. VERBEEK
THE RJGHT OF NATURE, which Writers commonly call Jus Naturale, is the Liberty each man hath, to use his
THE RIGHT
own power, as he will hirnselfe, 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 Judgement, and Reason, he shall conceive to be the aptest
significalion of the ward,
means thereunto. By LIBERTY, is understood, according to the proper signification word, the absence
of externall Impediments; which Impediments, may oft take away part of a mans power to do what hee
would; but cannot hinder him
hirn from using thc power !cft
Icft hirn, accarding
according as his judgcmcnt,
judgemcnt, and reason shall
him.78
dictate to him 78
According to Hobbes, however, natural right is not a general property of finite things but an exclu-
exelu-
sively human feature, which,
whieh, moreover, does not seem
see m to require a specifically
specifieally metaphysicaljustifica-
metaphysiealjustifiea-
tion. Next come
eome the so-called
so-ealled Laws of Nature, that is,
Precept[s], or generall Rule[s], found out by Reason, by which a man is forbidden to do, that which is destmc-
destruc-
tive or taketh away the means of preserving the same; and to omit,
live of his life, ar omi!, that by which he thinketh it
preserved. 799
may be best preserved.1
The discussion
diseussion of the Seeond
Second Law of Nature leads Hobbes to formulate his theory of covenants. eovenants. If
we renounce, or transfer, a right (as the Seeond Second Law of Nature requires us to do, given certain
circumstances)
eireumstances) this takes the form of 01' a paet
pact or eovenant,
covenant, that is, a sole mn promise, which may take
solemn
the form of an oath. gj81 Previous to the institution of sovereignty, the Third Law ()f of Nature requires
'that men performe their Covenants made'. As a result, civil eivil society
soeiety is ultimately founded, not only
in a shared desire for peace but in a form of institutionalized trust, which Hobbes calls the 'Fountain
and Originall of Justice'
lustice' .82 Therefore, it is not the individual act of keeping a promise that is useful
tor
for the individual that keeps it (in many cases it is not), but the universal rule ('naturallaw') that
promises should be kept.
Spinoza is sceptical
sceptieal about this approach, precisely because,
beeause, according to hirn, it relies too rnuch
much on
trust: 'A govemment whose welfare depends on loyalty [fidel and whose business can be transacted
only if it is presupposed
prcsupposcd that thosc
those who actaet on its behalf act
aet faithfully, will never
ncvcr be
bc stable.,83
stable. ,83 Frorn
From
that point of view Hobbes's theory collapses
eollapses on at least two points. First, Spinoza denies that religion
01' nature, whereas for Hobbes it
is possible in the state of il is the only means to back up the solemn prom-
ises ofthe
of the covenant. 84
84 Second,
Seeond, Spinoza does not believe that promises create duties; people keep their
The state and the civil society (which is not distinguished from it) are part of nature. 89 89 What distin-
guishes them {rom
from the so-called state of
01' nature is that they are based on aredistribution of natural
rights, that is, arearrangement of natural powers. In the state of nature there is an utter dispersion
of power, divided as it is over as many heads as there are people; in a civil society there is a double
concentration of power: in the sovereign, who can be sovereign only because he has enough power
to impose his will, and, according to Spinoza as Cla result of this, in the people, who, because they
live under a common rule, form a unity and thus acquire a coUective collective power, that is, a collective
rightYo Whereas according to Hobbes people subject themselves to a rule (that is, the third Law of
rightYO
Nature which teUs them to perform thcir covenant) and, to be sure that that rulc rule yiclds the effect
they want (that is, peace), let a sovereign emerge whom they unconditionally obey, the burden of
creating unity and peace rests, according to Spinoza, entirely on the sovereign. Indeed, the coming
into effect of a rule is the result of apower struggle between the would-be sovereign and what, once
he actually is sovereign (but not earlier), is called the people - indeed, virtually, this power struggle
ne ver ends because at any moment the people can change their minds and use their power to over-
never
throw the ruler.
That means, however, that sovereign right, that is, the natural power of the sovereign, is by defi-
nition limited by the right (that is, the power) of the people: 'the sovereign's right is nothing but
natural right, lilimited,
mi ted, however, not by the power of every individual but of the multitude in so far
as it is guided as it were by one mind.'91 Whereas in the state of nature individuals confront indi-
viduals, a sovereign by definition confronts
con{ronts a mullilude
multitude which, as aCl result of his own force, forms a
unified body with an accordingly large amount of power: indeed, as long as the people are 'of one
mind' their collective power always exceeds that of the sovereign. The ultimate challenge of any
sovereign, then, is to prevent the people from being uni ted against hirn;
united him; inversely, the ultimate
threat of each government is their own citizens. 92 In any case, no sovereign right can ever be
so
B5 'Since by natural right I am bound to choose the lesser of two evils, I have the sovereign fight
'Sinee right to break faith and go back on
my pledged ward. word. Now this, I say,
say. is fully justified by natural right, whether it was true and infallible reasoning or whether it
mistaken beliefthat made me realise I was wrong to have made that promise.' (TIP
was nllstaken (TTP xvi, 6, 111,192)
IH, 192)
86 Für an analysis of the only passage in Spinoza's work that is abscufe
:)6 obscure enough to be read as an endorsement of the contractarian
theory, see Verbeek, Spinoza's TheoLogico-politicaL Treatise,, 136-8.
Theo!ogico-po/itical Tre([tise
s7TP
87TP iii,
iii. 6, IV, 16-17; cf. TIP
6.IV. TTP xvi,
xvi. 8, 194; xx, 8, 111,
111,194;
8.11I. 1lI. 242; and above all Adn. in TIP,
TTP. xxxiii, 1lI.
111, 263.
88 Ep 50, IIV,
88 V. 238-9.
238-9.
so That is,
W) iso of course,
course. another difference
differenee with Hobbes, aeeording
according to whom civil society and the state are artefacts; cf. Leviathan
xvii,
xvii. 6-12.
90 TP iii,
90TP iii. 3, IV, 15.
3.IV. 15.
91 TP iii, 2, IV.
9l IV, 14-15.
n TIP
TTP xvii,
x vii, 4, 111, 203-4.
4. 1lI,
396 Spinoza and Law
272 T. VERBEEK
1. 'In the same way as in the state of nature the man who is led by reason is most powerful and
most independent (suijuris), so, too, that state (civitas) will be most powerful and most inde-
pendent which is based on, and guided by, reason.'
2. 'Subjects are dependent, not on themselves, but on the state only in so far as they fear its
power or threats or as they love the constitution (status civilis); whence it follows that such
things as no rewards or threats can induce one to do do not fall within the light of the state.'
3. 'Things do not belong to the right of the state in so far as they cause indignation in the
majolity.,97
majolity.' 97
93The
93 The only exception would
\vould be democratic
dernocratic governrnent,
government, which alone
alane is 'absolutely absolute' (omnino absohttum)
ahso/utum) because the
governing and the governed coincide (alogic
coineide (a logie that would prove altractive
attraetive to Rousseau). However, without a theoeratic
theocratie foundation
this must remain a purely abslt'act
abstract possibility (wltieh
(which also proved altractive
attractive to Rousseau); see Verbeek, Spinoza's
Spirwzu's Theologieo-
TheoLogico-
political Treatise, eh. 5.
coUtical
14 Cf. P. Mesnard, L'essor
J4Cf. L' esso!" de la
La philosophie poLitique
politique ou XV1mc siede, seeond
au XV/me second edition (Paris; 1952), 480-93; Q. Skinner.
(Paris: Vrin, 1952),480--93; Skinner,
1he Fowwatiolls o{Modem
Ihe Foundations otModern PoUtical DWllght, 2 vols (Cambridge:
Political1hought, (Carnbridge: Cambridge
Carnbridge University
UniversiLy Press, 1978, repr. 1993), val.
vol. 2, 286-
301;
30 I; J. H. Franklin, 'Sovereignty and the Mixed Constirution:
Constitution: Rodin Crities', in The Camhridge
Bodin and his Critics', Cambridge History or
Historv of' PoUtical
Political
1450-1700, edited by J. H. Bums (Cambridge: Cambridge University Press, 1991, repr. 1994),298-328.
~hought: /450-/700,
Thought:
9, TTP xviii, 6, III, 226; TP iv, 1-2, IV, 21-2. For
95TTP Far the
lhe second point,
polin, see TTP xvi, 8, III, 193 and all 01' ch.
a11 oI eh. xix; cl'.
cL TP iv, 3-4, IV,
22-3.
96 TTP xvii.
""TIP 1, 1Il, 201 (see also above, 1153).
xvii, 1,111,201 n53).
7-9, IV, 17-18.
97 TP iii, 7-9.
Spinoza and Law 397
The power of
ofthe
the state is not simply that it can use fear to control people but generally anything it can use to
enforce obedience for it is not the reason for obedience but obedience that turns one into a subject. I!00
For the fact that a fool or a madman (stultus aut vesanus) can by no rewards or threats be induced to
execute orders, or that some individual (unus
(UIlUS aut alter), because he is attached to this or that religion,
judges the rights of the state worse than any possible evil, in no wise annihilates the rights of the state,
when (quandoquidem) most other citizens
ci ti zens respect them. And so, according as those who are without fear or
hope are independent (sui juris), they are enemies of the statesÜlte (imperii hostes), which it is permitted to
restrai n by right.
restrain right.!IOI
O!
yg
'!X 'J ustitia est animi constantia tribuendi unicuique,
'Justitia unicuique. quod ei ex jure civili competit' (TTP xvi, 15. Ill, 196). The first part of !his
15, 1Il, this
belng a paraphrase of Roman Law: 'Justitia est constans
definition Is of course classical, being canstans et perpetua voluntas jus suum
SUUl11 cuique
tribuendum'
tribnendum' (Dig. 1.1.10; cf. !"st.lnst. 1.1).
'''TTP xvi, 14, 1Il, Ill, 196.
llKI TTP xvii, 2, Ill,
1();) 1Il, 202.
11)[ TP iii,
101 iii 8,
8 IV,
IV 17-18.
17-18
1112TP
102 TP iii,
iii: 9,
9: IV,
IV: 18. .
398 Spinoza and Law
274 T. VERBEEK
thing to do. 103 Apart from the fact that the same considerations could also induce the sovereign to take
radically different measures, this means that 'natural' rights are at best of regional significance. A
sovcrcign may dccide
deeide to respect
respeet them beeause eircumstances that
because given the cireumstances thatis oreven
is the best, or even the only,
way to consolidate his power
power- - and ifthat does consolidate his power, that ohviously
obviously was the right thing
to do. If, however, he can consolidate his power only by ignoring what we call natural rights, than that
Accordingly, natural rights have nothing absolute - on the
obviously is the best thing he can do. Aecordingly,
contrary, the judgement whether they should be respected is entirely left to the mler. ruler. As a result, given
the fact that the main point of01' natural rights is that they can be claimed against the mlerruler and against
positive law, one might as weil say that Spinoza cannot provide a utilitarian accountaecount of naturallaws.
Spinoza' s thcory as a (scvcrcly qualificd) cndorscmcnt of natural rights, it would
Evcn if wc do rcad Spinoza's
still provide no guarantee at all for individual rights. Indeed, ifright is natural power, an individual has
iden ti fies with a naturally powerful collectivity:
rights only to the extent that he identifies
the righls
So lhe rights 01'
01' the individual are delermined
determined by lhethe rights 01' the eollectivity
01' lhe colleelivily 01' which he is parl-
01' whieh part- his
fee! and to think, of which we have spoken earlier.
only individual right is the alleged right to feel
In any case, Spinoza reduees
reduces the question of rights to one of opportunity. If to aehieve
achieve stability it is
necessary to acknowledge natural rights, that is what the mler ruler should do; if on the other hand the mler ruler
can achieve stability without it, that, too, is what he should do. In fact, Spinoza's primary concem concern is
not with right or justice but with stability; and his belief seems to be that in most cases (and certainly
in an open and commercial society such as the Dutch) this can be achieved only if the mler ruler grants
certain liberties; hul
cerlain liherlies; but even under those cireumstances must not
circumstances he musl nOl grant too much
granl loo rreedom if
mueh freedom ir he is lo
to
beginning a war with each other. In a general way one
prevent the various parties and factions from heginning
might say that Spinoza relies on the self-regulating mechanism of power or in other words that he
expects the mler
ruler to realize that too much power (and ahove above all a too manifest use of it) will almost
automatically trigger a revolution. In actual fact Spinoza seems to have been much more impressed by
normati ve notions generally)
the fact that natural rights (and normative generally ) could be a factor of01' instability - a consid-
eration which eventually would also be the reason why conservatives such as David Hume, Edmund
Burke
Burkc (1729-1797) and Joseph de Maistre rejcetcd natural rights. 105 Indeed, if resituated
Maistrc (1753-1821) rejected
in its context, Spinoza' s political stance turns
tums out to be anything but 'revolutionary'. For although,
according to hirn, anation should continually adjust its institutions, it should never allow them to devi-
ate from the original constitution. 106
CONCLUSION
103 This
Tbis is clearly the 'tolerant' poliey Spinoza indicates for Holland, whieh in his bis perception at any rate must have been a province
consisting ofminorities only (and also the reason why he rejects the solution proposed by Hobbes; see my Spinoza's Theologico-
fr0litical Treatise, 56-60).
f,0litical
Il4TP
(~TPii, ii, 16,IY,
16, [V, 11-12.
105 For Hume see D. Livingston,
Livingston. Hume and the Common Li!e Life (Chicago: University of Chicago
Chieago Press,
Press. 1984);
[984); for Burke see 1.I.
Harris, 'Edmund Burke' in The Stan!ärd StantiJrd Encyclopedia of Philosophy (spring 2004 edition), edited by E. N. Zalta, http://
or Philosophv
plalO.slanford.edu/archives/spr2004/enlries/burke/.
p,lalO.stanford.edu/archives/spr2004/erliries/burkel. For Joseph de MaisIre,
Maistre, see his Considerations
Consideratiolls sur 111
la France (1797).
Ir, His reproach to Holland (after William lIl's
11<> lTI's coup in 1672) is that its administration had done too little to refonn
reform the institutions
when therewas
there was still achance:
a chance; TPix,
TP ix. 14, IV, 82. Forthegenera1
For the general point, seech.
see eh. 18 ofTTP.
I07For
Im For a more complete discussion, see the work of ofVerniere
Verniete (n
(n12).
12).
Spinoza and Law 399
either. Finally, it is true that until Goethe (1749-1832) and Lessing (1729-1781), Spinoza symbolized
whatever most people found morally and religiously dangerous, and that many atheists and materialists
(La Mcttric,
Mettrie, d' Holbaeh,
Holbach, thethc authors of clandestine
dandcstinc manuseripts)
manuscripts) hailed
hailcd Spinoza as thcir predeeessor
prcdcccssor108
- so if radical means atheist I am even prepared to agree with Israel on the connection hetween between
Spinoza and the Radical Enlightenment; indeed, if anything, my own interpretation of Spinoza
provides the basis fortor that eonnection.
connection. The real problem concems the alleged relation between radieal
thought and modemity (in the specific sense used throughout this paper; that is, as a set of subjective
rights). Again, this is not primarily a historieal, but a conceptual problem; problem: the problem whether a
philosophy such as Spinoza's can acknowledge natural rights or be the basis for a theory of natural
rights.
Spinoza's social and political philosophy amounts to a courageous attempt to pursue the idea that
right is might to its ultimate consequences. 109 109 That is an extremely radical, and even revolutionary,
view because it also implies that if the people have the power, they have also the right to overthrow
lhe
the sovereign - indeed, if ir lhey
they do helieve
believe a revolulion
revolution will improve lheir
their situation,
situalion, thaI
that is what
whal lhey
they
necessarily do. IIO However, Spinoza addresses hirnself not to the innumerahle
innumerable individuals that could
cause a revolution, hutbut to the rulers
mlers that confront those individuals; all his efforts are directed at warn-
ing rulers that in the event of a revolution or a civil war, they are hound
bound to lose. This gives his political
philosophy a somewhat old-fashioned flavour: instead of being concerned with legitimacy and with
limited government, Spinoza is interested only in stahility being a sign of something hehaving
stability (this heing behaving in
accordance with the laws of nature) and in the art of governing. Moreover, Spinoza's inability to
aceommodate
aeeommodate normative
normati ve eonecpts, thc very
eoneepts, or rather the vcry neeessity
nceessity in whieh hehc is plaeed
plaecd to reduee
rcduee the
thc good
and the right to what is individually useful, makes it impossible
impossihle for hirn to aeknowledge
acknowledge the emerging
tradition of individual natural rights, whichwhieh aimed at limiting the rights of the state by defining a
uniform sphere of legitimate freedom, which could be limited only tor the sake of protecting the funda-
mental rights and liberties of others. Accordingly
Aceordingly this tradition remained one of the main assets of the
moderate Enlightenment (Grotius, Locke).
The modern notion of natural or subjective rights, on the other hand, was based on that of the
moral dignity of man, which in turn was foundcd in man's bcing cndowcd with reason rcason - a notion
which aceommodate. Moreover, although the figures in this tradition (Grotius,
wh ich Spinoza cannot accommodate.
Locke, Pufendorf)
Pufendort) constitute
eonstitute anything but a monolithic
monolithie block, they shared a wish to establish a secu-
lar sphere of morality and law, which being tounded in nature (instead of revelation), was free from
lheological
theological or ecclesiaslical
ecdesiastical inlerference
interrerence - lhus
thus laying lhe authentically 'enlighlened'
the basis for an aulhenlically 'enlightened'
agenda. II11
1I Finally, although none of the founders of this tradition were revolutionaries, it gradually
became dear
clear that the theory of natural rights had great political impact, as it continues to have to the
present day.112 As I have shown, Spinoza rejects that tradition, without replacing it with a viable
theory of his own. Accordingly, even though there can be no doubt that, directly or indirectly,
Spinoza contributed to the spirit of secularism that is also characteristic of the modern age (he was
not the only one for that matter), he cannot he be seen as the father of modernity in the sense adopted
throughout this paper.
Utrecht University
108 For
Far La Mettrie,
Mettrie. see T. Verbeek, 'La Melu'ie
Mettrie und die Philosophie: Descartes wld und Spinoza' in JuLien
Julien Ottrav
OtJiay de La Mettrie:
Wissenschafrsverlag, 2004),
Hinsichten, edited by H. Hecht (Berlin: Berliner Wissenschaftsverlag,
Ansichten und F:insichten, 97-109.
2004), 97-109.
"" See A. Menzel, Beiträge zur Geschichte der Staatslehre (Vienna and Leipzig: Hölder-Pichler-Tempsky, 1929), 'Sitzungsber-
Im
ichle der Akademie der Wissenschaften in Wien'; D. J. den U yl. Power, State and Freedom: An Interpretation olSpinoza'.\'
Uyl, ofSpinoZl/ 's Polit-
Potit-
Goreum, 1983).
ical Philosophy (Assen: Van Gorcum, 1983).
llOCf.
110 Cf. A.Negri, L'anoma!ia
L'aflomalia selvaggia: saggio sn Feltrinelli, 1981), translated by M.
potere e potenza in Baruch Spinoza (Milan: .Feltrinelli,
su fJotere
Hardr, 77w
The Savage Anomaly:
Anomalv: The PowerolSpinoza
PowerotSpinoza 's ',I Metophysicsand University ofMinnesota Press, 1991).
Politics (Minneapolis: UniversiryofMinnesora
Metaphysics mut Politics(Minneapolis: 1991).
111 Apart from the büoks
III articles already cited, see I. Hunter, Rival Enlightenlllents:
books and artic1es Enlightenments: Civil and
(md Metaphysical Philosophy in
Early Germany (Cambridge: Cambridge University Press, 2001).
Earfy Modern GemulllY 200 I l.
Jt is c1ear,
112 Tl clear, for
für example, that the eventual suceess (1975) was due to the emphasis on human rights.
success of the Helsinki Accords (1975)
[21]
Spinoza on being sui iuris and the republican
conception of liberty
lustin
Justin D. Steinberg*
College. CUN
Brooklyn CoUeae. Y. USA
CUNY.
Abstract
Spinoza's use of the phrase "sui iuris" in the Traelatus Pali/ieus gives rise to the following paradox. On the one hand,
Tractatus Palilieus
one is said to be slli iuris to the extent that one is rational; and to the extent that one is rational, one will steadfastly obey
sui iuri,.
the laws ofthe state. However, Spinoza also states that to the extent that one adheres to the laws ofthe state, one is not sui
iuris, but rather stands lmder
under the power [sub potestate] ofthe state (TP 3/5). It Tt seems, then, that to the extent that one is sui
iuris, one will not, in fact, be sui iuris. InTn this paper, IT after
otTer an interpretation of Spinoza's nationnotion 01' being sui iuris that
enables us 10 overcome lhis paradox and sheds light lighl on Spinoza's relalionship lO 10 lhe republican
republiean lradition.
tradition. T
I work lowards
lhis goal by dislinguishing belween lwo ways in which Spinoza uses lhe the loculion,
loeution, which correspond 10 to lwo
two diflerenl
differenl
conceplions
conceptiolls of power: potcmia potentia and potestas. This distinclion
distinction nol
not only allows us 10 Lo save Spinoza from inlernalinternal
ineonsislency, it
inconsislency, il also enables us 10 see one imporlanl way in which Spinoza slands stands oulside
oUlside of
01' lhe
the republican
republiean lradilion,
tradition, since
sinee
he conceives
coneeives 01' liberly
liberty nol as cons(ituted
conslituled by independence, or citizenship
eilizenship in ares publica,
publiea, bul
but as being sui iuris in lhe
the firsl
sense described above: being powerful.
powerfu!.
KeYlvorrL'l:
KeYli'ords: Spinoza; Republicanism; Pmver
Power
'Tel.: -12073139162.
+12073139162.
jdstcinb((/:colby.cdu
E-mail address: jJstcinb(ißcolby.cdu
E-ruail
1lBoth
Both A.G. Wernham (Spinoza, The Pali/iml Wurl,s (Oxford: Clarendon Press, 19S9),
Pulitical Worb 195~), 46) and Samuel Shirley (Spinoza, Politicul
Pali/iml
Treru;se
Treatise (Tndianapolis: Hackett, 200 I). p.42n31) note the difficulty
2001), dlfficulty in
In translating
translatlng this
thls phrase.
2 R .H .M . Elwcs's translation of Spinoza's Theoloqico-Polilical
Theologico-Polilical Trealise and Polilical
Political Trealise (New York: Dover,
Dovcr, 1951).
JShirley,
3Shirley, op. cit.
eit.
4Wernham, op. cit.
4Wernham. eit.
402 Spinoza and Law
the laws ofthe state, one is not sui iuris, but rather stands under the power [suh potestate]
IJotestate] ofthe state (TP 3/5).
Tt
It seems, then, that to the extent that one is sui iuris one will not, in fact, be sui iuris.
offer an interpretation 01'
In this paper, I ofter of Spinoza's notion 01'of being sui iuris that enables us to overcome this
paradox and sheds light
lighl on Spinoza's relationship to lo lhe
the republican lradition.
tradition. I will work towards
lowards lhe
the first
firsl goal
by distinguishing between two ways in which Spinoza uses the locution, which correspond to two different
conceptions of power: potentia and potestas. On the one hand, he uses it to denote something like rational self-
control or interna
internalI causal
cansal power [potentia]; on the other hand, he uses it to denote something more like
authority
aUlhorily or coercive
coereive power [potestas]. Once
Onee we disambiguate
disambiguale these
lhese lwo senses of being sui iuris,furis, we ean
can show
that there is nothing contradictory
eontradictory in Spinoza's views about being sui iuris.
This distinction not only allows us to save Spinoza from interna internalI inconsistency,
inconsisteney, it also enables us to see one
important way in which Spinoza stands outside of the republican tradition. While republicans typically
cleaved
c1eaved to a conception of politicalliberty as constituted
eonstituted by citizenship in ares publica, or self-governing
self~governing state,
indicales lhal
Spinoza indicates lhe regime form lhal
lhat the lhat a commonwealth
commonwealLh takes-whether
lakes-whelher monarchy or republic-is nol
essential to the promotion of ofliberty,
liberty, since liberty, or being sui iuris
iurzs in the first sense described above, consists
in being powerful, and there is nothing intrinsic
fntrinsic to a republic that would necessarily secure this. Nor is there
anything about a monarchy that would prec1ude preclude its being able to endow its subjects with such power to act.
Liberty depends not so much on the source of the laws as on the content of the laws.
This paper will be divided into three main sections. In the first section, I set the stage for the discussion of
Spinoza's relationship to the republican
republiean tradition by introducing the republican conception of liberty and
considering the textual evidence that would lead one to suppose that Spinoza's conception ofpoliticalliberty is
fundamentally
fundamenlally republican. In the section, I lurn lo
lhe second seetion, to lhe notion of 01' being suf furis. Here I will delineate
sui iuris. delineale
and, ultimately, dissolve the paradox described above. In the final seetion, 1I draw out the implications of the
analysis of being sui iuris for understanding Spinoza's conception of liberty and its relationship to the
republiean tradition.
republican lradilion.
Wirszubski . Ubertas
5Chaim Wirszubski, Libertas os
as a Political {dca
/dea in Rome Durinu
During the
fhe Lute Republic amlund Early Principate
Prim'ipate (Cambridge: Cambridge
C niversity Press, 1950), 4.
University
Be.lore Liheralism (Cambridgc: Cambridgc L'nivcrsity
Liherty Be/öre
fi Liherf)"
f, Univcrsity Press, 1998), 23.
7The Excellellcy
Excellency ula
ofa Frei' State, ed. Richard Baron (London, 1767),32-3.
Frce Stute,
sRaia Prokhovnik's Spinoza
,sRaia Spinow und Republicanism (London and Ne\v
and Republicanisrn New York: Palgrave Macmillan,
Macmil1an, 2004) provides an exemplary case. See
also Susan James, who claims that most scholars "llnderestimate
"underestimate the republican antecedents of [Spinoza's] analysis of freedom" ("Power
Differcnce: Spinoza's ConecpLion
and DitTcrenec: Conception of Freedom,"
Frecdom," The Journal q/ Po/itical Philosophy 4(3) (1996), 209n4). Steven Smith too citcs
ol Political cites "self-
ingredients" of Spinoza
government" as one of the "cardinal ingredients" Spinoza's conception of political liberty
's cOl1ceptiol1 Iiberty (S'pinoza,
(Spino::a, Liberalism, and
ami the Question of
.Jell'ish (Ne,v Haven: Yale "Cniversity
Iden/ily (New
Jelvish Idenlily University Press, 1997), 164). And Quentin
Qllentin Skinner claims timt
that standard interpretations "underestimate
Spinoza and Law 403
(j()otnote
Clootnote continued)
ideas, especially as developed by Machiavelli in the Discourses" ("The Idea of
the extent to which Spinoza is restating c1assical republican ideas.
NcgaLivc Libcrty: Philosophical and Historieal
Negative Historical Pcrspcctivcs,"
Pcrspcctivcs," Philosophy in His(ory,
His!ory, cd. Richard Rort)',
Rürty, J.B. Schnec\\·'ind,
Schnecwind, Qucntin Skinner Skinncr
(Cambridge: Cambridge University Press, 1984), 217n35), the liberty 01'
19B4), 117n35), self-governance being one 01'
of seltCgovernance of the primary
primat·y ideas.
') Spinoza und
<JSpinow and Republicanisrn,
Repuhlicanism, 204.
wAll
10 All quotations from the political works are taken
ülken from Wernham's translation (see note 1). I). Citations of
ofthe
the TTP refer to the chapter,
followed
follO\vcd by page number
numbcr (c.g.,
(e.g., 5,/95 refers
rcfcrs to chapter 5, page 95). Citations of the TP rcfer to the chapters,isections
rcfcr 10 chaptcrs/sccLions (e.g
(c.g.,.. '5//4'
'5/4' refcrs to
rcfcrs 10
chapter 5, Section 4).
llDiscourses
11 Discourses Concernin{] GOllf.Tnment, ed. Thomas G. West (Indianapolis: Liberty Fund, 1996),8.
Concerning Governmenf. 1996), 8.
404 Spinoza and Law
condition of nature"
natme" (TTP 16/137). Democracies preserve the natural natmal liberty and natural
natmal equality of their
citizens, because in them one is a participant in one's own governance.
These passages seem to support Prokhovnik's contention (above) that Spinoza's conception 01' of political
liberly is fundamenlally a malter
maUer of self-governance. They seem 10 to express an allegiance 10
lo a republican
conception of ofliberty.
liberty. However, it is not dear whether Spinoza consistently adheres to these views and whether
he really values
va lues republican Iiberty
liberty as much as these passages seem to suggest. In fact, I think that, although
these passages cannot be ignored, the textual evidence in the TTP for Spinoza's endorsement of republican
liberly is quite
quiLe meager. Only in lhese
these Lwo
two passages does he resl
rest significanL
significant argumenLative
argumentative weighL
weight on this notion
of liberty; and such a conception is altogether absent from his later political treatise (TP). We will see that in
wode liberty is primarily explicated in terms of being sui iuris. And while the sui iuris/in
the later work iuris/ in potestate
dichotomy is historically connected with the Fee free man/slave dichotomy, whichwh ich is central to the republican
repnblican
tradition, Spinoza uses the division primarily to overturn the republican conception and replace it with his own
power-based concepLion
conception of liberLy.
liberty. To grasp lhe
the significance of lhe
the vocabulary shift in Lhe
the TP, it
iL behooves us
to briefly survey
smvey the history of the notion of being sui iuris.
of the concept
Abrief history o/Ihe
This notion of naturalliberty is altogether absent in Spinoza's later Tractatus Politieus. In its place, Spinoza
Traetatus Politicus.
uses a concept that was c10sely
elosely associated with naturalliberty,
natmalliberty, namely that of being sui iuris, which, as I noted
in the inlroduction,
introduction, means roughly being possessed of one's own right. The concepL concept of being sui iuris comes
from Roman law, where it falls within the law of persons [ius personarum]. At the beginning of .Iustinian's lustinian's
Digest we are told that the "great divide" within the law of persons is between freemen [fiberi] [liben1 and slaves
[serVil Here, freedom is defined by Florentinus as that "natural
[sern], "natmal power [naturalis facultas] of doing what one
[naturalis}i.lcultas]
pleases." 12 More significant for our
pleases.,,12 om purposes
pmposes is the definition of slavery, which is "an institution 01' of the jus
gentium , whereby someone is against naLure
gentium, nature made subject
subjecl Lo
to Lhe
the ownership 01' of anolher [dominio alieno contra
naturam subicitur].
naturmn ,,]3 From this definition, we see that one of the constitutive features
suhicitur]."13 featmes of servitude is that one
stands under another's dominion, which is why Skinner contends that "ifwe "if we wish to understand the essence of
serviLude [in Roman law], we need Lo
servitude to lake note of a furlher
further distinction
disLinclion wiLhin
within lhe law of persons: lhe
distinction between those who are, and those who are not, sui iuris.,,14
iuris." 14 The dichot01llies
dichotomies offree
of free man/slave and
being sui iurisjin
iuris/in potestate are not, strictly speaking, coextensive, since those who are in potestate include not
only slaves
sl,lVes (1.6.1), but also children (1.6.3) and women who are not heads of households [matresfClIl1iliarum].
[matres jamiliarum].
Nevertheless, the elose connection between these pairs is immediately evident. Being sui iuris amounts to being
a free, moral agent: the author of one's actions. And one who is in potestate cannot be a free man.
The accounts of liberty and self-jurisdiction in Roman law likely played a decisive role in shaping the ideas
of the Roman moralists and historians who stand at the base of the republican tradition. In fact, Skinner has
gone so far as to Lo claim that
thal "the
"lhe views of Lhese
these ancient authorities
aUlhorities had ... been derived almosLalmost entirely
entire1y from
the Roman legallegallradition
lradition evenlually enshrined in Lhe
the Digest of Romanlaw,,,15
Romanlaw,"15 ciLingciting examples in Seneca and
Livy. It
lt is certainly the ca se that the Roman moralists often suggested that freedom [lihertas]
[libertas] was possible only
if one does not stand under the power of another (i.e., only if one Iives lives in a clcitas
civitas libera) and that the civitas
ciuitas
fibera was only possible in the absence of a dominus, in the form of an emperor. This view was later embraced
libera
by renaissance and early-modern inheritors of the republican ideals. For inslance, instance, English republican
Algernon Sidney wrote that "liberty "Iiberty solely consists in an independency upon the will of another, and by
the name of slave we understand a man, who can neither dispose of his person nor goods, but enjoys all at
the will of his master.,,16 This characterization of the difference between a free man and a slave precisely
12 The
J2 Digest oj"Justiniu1/, vols., trans. Alan Watson, et al.
(~f lustinian, 4 vo1s., a1. (Philadelphia: "Cniversity of Pennsylvania Press, 1995), Section
University ofPennsylvania Sectionl.5.4.
1.5.4.
13 The
13 Diqest o[
D(qest Watson. et al. (Philadelphia: "Cniversity
Juslinian, 4 vols., trans. Alan Watson,
ofJustinian, University of Pennsylvania Press,
Press. 1995), Section 1.5.4.
14 Liherty Beföre
J4 Be(ore Liheralism, 40.
15 Li
Liberty B(j(}rc Liberalism.
berty Be(ore 3S; cf. p. 42.
Liberalism, 38;
Discourses Conceminq
16Discourses
16 Concernin{] Goremmcnl.
GovernmelIi, 17.
Spinoza and Law 405
mirrors the Roman law distinction of being sui iuris and being in potestate,
jJotestate, right down to the suggestion that
liberty is an ownership over one's own person (i.e., independence). Thus, while the term 'sui iuris' is not a
conspicuous part of the republican nomenclature,
nomendature, the concept to which it refers is at the very core of
republican lhoughl.
lhought.
The term su; iuris was used explicitly in several important juristic works in the sixteenth and seventeenth
tenn sui
century. In these works, it is used in connection with the notion of
ofnaturalliberty,
naturalliberty, which, as we have seen, was
deployed in the service of an apparently republican argument in Spinoza's TTP. Grotius uses this expression
in his early work De lure Praedae, where he wriLes:
writes:
God created man CW1E;oUcrIOV,
c(UTE~OUcnoV, "free and sui iuris", so that the actions of each individual and the use ofhis
of his
possessions were made subjecl nOl
nol 10
lo anolher's will bul 10
lo his own. Moreover, lhis view is sanctioned by lhe
common consent of all nations. For what is that well-known concept, "natural liberty", other than the
power of the individual to aet
act in accordanee
accordance with his own will?
will'?17
17
Grotius's tendency "to treat liberty as a piece of property," as Richard Tuek Tuck puts it, 18
18 which is weil
well captured
by the notion of being sui iuris, betrays the intluence
inftuence of sixteenth century
centUl'y Spanish jurist Fernando Vazquez de
Menchaca. Like de Soto before him, Vazquez conceives of liberty as something very close to dominium
[properly].19 Vazquez also used lhe 10cution
locution 'sui iuris' lo den oIe liberly qua self-ownership.
denole se1f-ownership. As Annabel Brell
shows, according to Vazquez, "the man who is free, homo liber, is also extra commercium nostrum, nos trum, recalcitrant
to dominium and servitude. A man is free (from servitude) who is sui iuris, under his own right and not anyone
else's. This is the natural condition of man as of all res. ,,20 Man is, by nature, sui iuris, and servitude is
inlroduced by lhe ius gentium secundarium. And, while neither
neiLher Grotius nor Vazquez
Väzquez used lhe concepl of being
lo defend a republican form of governmenl and lhe liberly lhal it
sui iuris 10 iL affords-indeed, Vazquez regards
this naturalliberty as something that must be restrieted
restricted or regulated if there is to be order-we have seen that
in the TTP Spinoza regards popular forms of government as preferable in part because they preserve this
naturalliberty. So, we might well
weil expect Spinoza to make a similar sort of claim in the TP, substitllting
substituting the
concepl of being sui iuris for lhal of nalural1iberly.
naluralliberly.
SpinoZCl
Spinoza on being
bein{] sui iuris: a paradox
Despite these expectations, we find Spinoza arguing in the TP that within any commonwealth whatsoever
"it is dear
clear ... that a citizen is not in possession
pos session of his own right,
right, but is subject to the right of the
commonwealth [videmus unumquemque civem non sui sed civitatis juris esse], and is bound 10 lo carry oul every
one ofits
of its commands" (TP 3/5; cf. TTP 17/151). Before turning to consider why it is that Spinoza thinks that
all citizens are in jJotestate ciätatis, we should note that he also maintains that citizens ean
potestate civitatis, can nevertheless be sui
iuris to a significant degree. Specifically, "those whose reason is most powerful, and who are most guided
lhereby, are also mosl fully sui iuris" (TP 2/11). These remarks laken logelher yield yie1d lhe ralher slrange
implication lhal one can be sui iuris insofar as one is rational,
ralional, while also being alieni iuris (or in jJotestate)
insofar as one is bound to obey the laws of astate. To add further eonfusion,
confusion, Spinoza also claims that "the
more a man is guided by reason, i.e., lhe more free he is, lhe more sleadfaslly will he observe lhe laws of lhe
state and carry out his sovereign's commands" (TP 3/6; cf. TTP note 33). This leaves U5 us with the following
paradox:
1. To the extent that one does what reason dictates, one will be sui iuris (TP 2/
2/11).
11).
2. Reason exhorls us lo obey lhe laws of a slale (TP 3/6).
144
244 J.D. Steinberg
Steinber{j / Hisfory
History (!fEuropean Ideas 34 (2008) 239-249
ofEul'Opean ldeas
From these claims, it follows that to the extent that one obeys the laws of astate from tbe
the dictates of reason,
one will be sui iuris. However, this seems to confiict
conflict with the claim that:
3. Tnsofar
Insofar as one is made to obey the lawfrom
law FOIn any motive whatsoever, one stands und
under
er the right of the
commonwealth,
commonwealLh, and lhereby
thereby is nol
not sui iuris (TP 3/5).
Indeed, Spinoza directly and unequivocally observes that, since reason bids us to obey the law, "sound reason
cannot dictale lhal everyone should remain sui iuris" (TP 3/6). So il
cannol diclale it seems lhal if one is rational, and lhus sui
iuris, one will stand under the right ofthe sovereign, and so not be sui iuris. To see how Spinoza gets out ofthis
paradox, we must consider more carefully what it means, according to him, hirn, for one to be sui iuris. This, in
turn, requires that we examine what he understands by "right" [ius] [jus] and "power."
Il is well known lhal in bolh of his poliLical works Spinoza holds lhal a lhing's nalural
It natural righl is coexlensive
with, and perhaps best understood in terms of, its power (see TTP 16; TP 2/4). For this reason, ifwe are make
sense ofofwhat
what it means to be sui iuris, or to be in control of one's own right, it would seem that we must better
und
understand
erstand what is meant by power. Spinoza uses two different terms that are translated in English as
"power": potentia and potestas.
poteslas. Both of these terms will be relevant to our study, since I will ultimately claim
lhal Spinoza aClually
aclually uses lhe lerm
term sui iuris in lwo differenl ways, which correspond 10 lo lhe lwo distincl
disLincl notions
of power. So that we may see this, let us begin by looking at what Spinoza means me ans by potestas.
Being potestate
Beiny sub polestate
The lerm potestas can mean a number of lhings. In Spinoza, iL is probably best besl underslood as somelhing
something like
'authority' (or control), and is rendered in relational terms, i.e., 1I am either under my own authority [sui iuris],
or TI am under the authority of another [sub alterius
alterhis potestate].21 On the surface, being under one's own
authority or polestas
potestas would seem to be very much like being in a condition of natural liberty in the sense
invoked in lhe TTP; and lhe sui iuris!in polestate dicholomy would seem 10
iuris/in pOlestate lo map on 10 lhe republican
distinction between the independent homo !iber Ziher and the dependent servus. However, the sense of dependence
that Spinoza has in mi nd when he refers to the condition of being in potestate is much broader than the
dependency opposed by republicans. To see what Spinoza means by standing under another's power or
aUlhoriLy, we should look al lhe examples lhal he provides in Chapler 2 of lhe TP:
One man has another
anolher in his power [sub potestate]
pOlestate] when he holds him in bonds; when he has disarmed him
and deprived him of the means of self-defense or escape; when he has inspired him
hirn with fear; or when he has
bound him so closely by a service that he would rather please his benefactor than himself, and rather be
guided by his benefaclor's judgmenl lhan by his own. (TP 2/10)
From these examples it is dear,
clear, again, that this relation [suh
[sub potestate] is one of dependency; but in what exactly
does this relation consist? The final example, of one who would "rather be guided by his benefactor's judgment
than by his own" because of some benefit [benefiäum]
[beneficium] rendered or promised, is at ononce
ce the most revealing and
the most opaque. How can one be guided by the judgment of another rather than one's own, if it is also the case
lhal "lhe man who decides 10 lo obey alllhe commands of lhe commonwealLh,
commonwealth, whelher lhrough fear of iLs its power,
or because he loves tranquillity, is certainly pursuing his own security and advantage in accordance with his own
judgment" (TP 3/3
judyment" 3(3 my emphasis). Tfwhenever
Ifwhenever one decides to do something, one acts from one's ownjudgment,
it would appear to be impossible to act from the judgment of another (since another's threats or offers are only
effective via one's ownjudgmenl). Coercive or persuasive forces lead one 10 form one'sjudgmenls
loform one's judgmenls in a partiCLtIar
parLicular
way; they do not lead one to act from another's judgments rather than from one's own. 22
But perhaps when Spinoza imagines a condition in which one would "ratl1er
"rather be guided by his benefactor's
judgement than by his own," he just means that one has allowed oneself-in some sense to be moved by the
demand or request of another. This would
wonld involve an act of
ofjudgment
judgment or acquiescence on the part of the actor,
but would make his/her acLions
bul actions dependenl on lhe jjudgment
udgmenl of anolher in lhe following counlerfaclual sense: if
S had not asked Q <P-or, more generally, if Q
Q to tP-or, Q did not believe that s/he were satisfying some request,
demand, or even unexpressed desire of S's Q <P-ed. The fourth example of being in potestate
Q would not have (P-ed.
could thus be understood in the following way:
One acls from lhe judgmenl of anolher (and is hence in alterius potestate) if and only if one performs
(or refrains from performing) a particular action because
hecause (understood counterfactually) another has
requested or demanded it, even if peljorming
performing (or one' s interests
(01' not performing) such an action is also in one's
because of some service rendered in return.
This sort of counterfactual dependency seems to be precisely what Spinoza has in mind. In response to the
very quandary that I delineated above concerning how one can ever act from another's authority, he writes in
the TTF:
lhe TTP:
[W]e cannot form a true idea of how far the right and power of the state extends unless we note that its
power is not restricted to the power of coercing men by fear, but it includes every means it has to make men
obey its commands; since it is not the motive for obedience which makes a man a subject, but the will to
obey. For if a man decides 10 to carry oul a sovereign's commands, it il does nol
not maller
maUer whelher his motive is
fear
fe ar of punishment, or the hope of some reward for obedience, or love of country, or any other emotion
whatsoever; his decision arises from his own deliberation, yet his action is still determined by the sovereign's
sorereign,s
authority. We must not therefore jump to the conclusion that because a man's action arises from his own
deliberation he does il it by his own righl and nOlnol by lhe
the righl of lhe slale;
stale; for since his acLions
actions always arise
from his own deliberation and decision, bolh when he is bound by love, and when he is forced by fear 10 to
avoid evil, there would on that view be no sovereignty at all, a11, and no right over subjects whatsoever. The
alternative is that sovereignty necessarily includes every means by which it can induce men to decide to obey
fo11ows that anything a suhject
it; from which it follows suhjecl does in response to 10 a sovereign'.I·
sovereign's commands, whether he does
itfi'om
il ji-om ties
lies ()laffeetion, or compulsion of
of affection , 01' offear, «(md this
fear, 01' (and Ihis is more usual)fi'om
usuallji-om hope andfear together, orfi'om
togelher, orFom
respect,
re,lpecl, a passion compounded offearof'fear and
emd admiration, 01' Fom
fi'om any other motive whatsoever, /ze he does by
hy the
right of
ofthe
the state and not by his ownmvn [ex
[exjure
jure imperii, non autem suo agil] (TT? (TTP 17/151 my myemphasis).
emphasis).
As this passage makes clear, anyone who is bound to obey the commands of a sovereign, "from any motive
whatsover,"
whalsover," stands, lo lhal exlenl,
slands, 10 extenl, under lhe
the righl
right of lhe slale, ralher lhan under his/her own right
righl (i.e., is
imperii iuris, not sui iuris). Are we to conclude from the fact that men (subjects) stand under the authority of
the state (sub potestate ciritatis)
civitatis) that they lack freedom that they are like slaves? Spinoza categorically denies
this, distinguishing dependence from unfreedom or slavery:
[S]omeone may think that this is to turn subjects into slaves; on the ground that a slave is a man who acts by
order, and a free man one who does as he pleases. This, however, is not entirely true ... what makes a man a
slave is the objects of his action. If its object is not the benefit of the agent himself, but of the man who gives
the order, then the agent is a slave, and useless to himself. But in astate where the welfare of the whole
people, and not of the ruler, is the highest law, he who obeys the sovereign in everything must not be ca11edcalled
a slave, useless 10
to himself, bul a subjecl.
subjecL Thus lhe slale whose laws are based on sound reason enjoys lhe
greatest freedom; for in it everyone can be free whenever he wishes. (TTF (TTP 16/135)
The difference between a free man and a slave turns not on whether or not one stands in a relationship of
dependency on others, but rather on whether or not one's interests are served. 23
We can see from this analysis that Spinoza's account of what it means to be dependent on the will of
anolher, or sub alterius potestale, accounl in a couple of significanl ways. First, he
polestale, differs from a republican account
n For a lIscful
23 uscful analysis uf
of Spinoza's notion uf
of scrvitudc, sec Lee Ricc, "Servitus in Spinoza: a Programmatic
Progral11l11atic Analysis,"
Analysis," Spinoza's
Spino2a's
Philosophy C!f
Philosoph}" of Man.
Alall. Proceedings of fhe Scandinavian
ofthe Scandinarian Spinoza S),'mposium, ed. Jon
S'pinoza Symposium, J011 Wetlese (OsI0,/Bergen,/Troms0:
(Oslo,/Bergen,/Troms0: Global Book Resources
LId., 1978), 179-91.
LId.
408 Spinoza and Law
conceives of dependency in a broader way than most republicans. For instance, when Sidney writes that "to
depend on the will of a man is slavery,,,24
slavery,d4 he takes dependency to signify a non-consensual condition. By
contrast, for Spinoza, in addition to the ways in which one can be dependent on, or in the power of, another
lha
lhalI would have been recognized by republicans-being held in bonds, being slripped of me means
ans of self-defense,
and being terrorized-there is a fourth and less pernicious mode of dependency that Spinoza mentions that
was not part of the republican tradition, namely, consensual dependency, wherein one is led to honor the
requests or demands of another because of some good or service received in return. Relationships of various
inc1uding friendships, could be underslood as dependencies in lhis sense, where one gladly performs an
sorls, including
act desired or requested by another.
Given this more expansive underst,mding
understanding of dependency, we should not be surprised that Spinoza's attitude
towards the condition of dependency is considerably different from that of republicans like Sidney. He makes
it dear
c1ear that when it comes to freedom, what matters is the extent to which one's interests are served, i.e., the
exlenl 10 which one is empowered, nol lhe exlenl 10 iurfs in lhe sense of being independenl.
sui iuris
lo which one is SUI independent.
Indeed, making oneself dependent on others is generally far wiser than remaining, or trying to remain sui iuris. furfs.
For instance, Spinoza makes it quite dear c1ear that although one who is not moved by the laws ofthe state remains
sui iuris (TP 3/8), s/he is consequently to be regarded as an enemy of the state [hostis imperil). And because
[hoslis imperir].
individuals are essentially powerless in comparison with the power of the sovereign (TP 2/15), remaining in
control of one's potestas drastically diminishes one's essential causal power [potential
[potential.
This is as true for a monarch as it is for a subject. A monarch who is maximally sui iuris williegisiate
willlegislate without
consulting or otherwise making himself or herself dependent on his or her subjects. However, the less a
monarch res ponds 10 lhe inleresls and demand of his or her subjecls, lhe more he or she will arouse lhe
responds
indignation ofthe masses in whose power sovereignty ultimately resides (TP 2/17), and the more cause for fear fe ar
he or she will have (T?(TP 8/4). But rather than just conc1uding
concluding that the more sui iuris, or independent, one is, the
more vulnerable one is, Spinoza aclually claims lhal lhe more sui iuris, or independenl, one is, lhe less sui iuris
one will be. ForF or instance, he writes that "the more completely the right of a commonwealth is transferred to
one man, the less is [the monarch] sui iuris" (TP 6/8). Conversely, a king will be maximally sui iuris when he
"gives most heed to the general welfare of his people [maxime sui iuris erit ... quando maxime eommuni CiJmmuni
(TP 7/11), i.e., when he makes himself dependent on, and responsive to, others
multitiudinis saluti consulit]" (T?
and so slands sub potestate populi. In lhese remarks we find an echo of lhe original paradox: lhe more one is sui
iuris, i.e., acts from one's own considerations alone, the less one will be sui iuris, i.e., powerful, and vice versa.
vers,!.
To see that this is not in fact a paradox, we must recognize that Spinoza uses the term sui iuris in another way,
polestas, but to potentia.
which corresponds not to potestas, potenlia.
We have now seen lhal Spinoza al limes Limes conlrasls lhe nolion
noLion ofbeing sui iuris wilh lhal ofbeing in potestate,
polestale,
the upshot being that it is in our best interest in many cases to make ourselves dependent on others. Being sui
iuris in this sense is on the whole undesirable for essentially the same reasons that Hobbes thinks retaining
one's natural liberty is undesirable: it leaves one isolated and vulnerable to extern al threats. Spinoza never
external
connecls lhis sense of being sui iuris, or independenl, up wilh wiLh liberly; lhis is because being free (in lhe primary
sense) is not so much a matter of not being subject to the will of another as it is being capable of acting
rationally and having one's interests served. I want now to suggest that Spinoza uses the notion of being sui
iuris in another way, which signifies not independence from the will of another, but rather power [potential or
freedom. This will show us the way out of the paradox.
Potentia agendi
ayendi and beiny
being sui iuris
There is evidence throughout the treatise that Spinoza thinks that one is sui iuris
furis to the extent that one is
[polens]. We see this in the passage that I cited above when presenting the paradox: "those whose
powerful [potens].
reason is most powerful, and who are most guided thereby, are also most fully sui iuris" (T?
(TP 2/11). This point
is also made in a laler
!aler passage where Spinoza draws an analogy belween lhe individual and lhe slale: "jusl as
in the state of nature the man who is guided by reason is most powerful [maxime potens]
pOlens] and most fully sui
iuris (by Section 11 of the previous Chapter), so also the commonwealth which is based on and directed by
Discourses
24Discourses
24 Conceminq
Concernin{] Gorernmcnl,
GovernmelIi, 17.
Spinoza and Law 409
... from the fact that the power [potential of things in nature to exist and act
aet is really the power of God, we
can easily see what the right of nature iso For since God has the right to do everything, and God's right is
simply God's power [Dei potential conceived as complelely free, it iL follows lhal each lhing
thing in nalure has as
much right from nature as it has power to exist and act
aet [potentiae existendum operandwn]; since
existendulll et operandum]; sinee the power
of every natural thing by which it exists and acts is nothing other than the power of God, which is
absolutely free. (TP 2/3)
God's right or power is free, because God is fullyful1y causally active, i.e., God is the source of all
al1 causal activity,
and is acled upon by no exlrinsic
eXlrinsic enlities,
enliLies, since lhere are no exlrinsic enLiLies.
enlilies. Bul unlike God, humans are
causally active, or powerful, to limited degrees, having bodies and minds that are constantly acted upon or
restrained by extrinsic bodies and minds. So while it is the case that whatever we do do,, we do by right or by
power, in cases where we are guided by passions rather than reason, our causal contribution to the action is
rather limited (TP 2/5). That is to say that we should recognize a distinction between acting by right righ/ or power
(characlerizes every action) and acLing
acting poweljully.
powerfully. Spinoza l11akes
makes lhis
this very poinl in TP 5 when he remarks:
rel11arks:
"1 do not assert that everything which 1 say is done by right is done in the best way; it is one thing to cultivate
eultivate a
field by right, and another to cultivate it in the best way" (TP 5/1). The scope of our potentia will be
determined by the scope of our causal activity, which is why Spinoza generally refers to the power that is
constilutive of lhings as poten/ia
constiluLive po/enlia agendi (power of acling)
acLing) or poten/ia
potenlia existendi (power of exisLing).
existing). Since
Spinoza consistently envisages potentia as a kind of causal power or power of acting, we l11ay may grasp why he
claims that one is sui iuris (in this sense) to the extent that one is causally powerful.
Orercoming
Overcoming the
Ihe paradox
In light
lighl of the
lhe preceding discussion, we can dissolve lhe paradox lhal lhat we limned al lhe oulset
oulsel of our
discussion of lhe TP, since we can now decouple lhe lwo senses of being sui iuris
ofbeing furfs (which correspond lo lhe lwo
notions of power). On the one hand, Spinoza uses the notion of being sui iuris in a rather customary
eustomary way,
meaning something like independence. This sense of being sui iuris signifies something very much Iike like
possessing the naturalliberty of
ofthe
the TTP. On the other hand
hand,, Spinoza uses the phrase in an idiosyncratic way,
meaning having a powerful body/mind. This is conlinuous
continuous with
wiLh lhe way in which he conceives ofliberly in lhe
Ethics. Once
Onee we separate these two senses of being sui iuris, we can see that there will be tradeoffs between
them. The more sui iuris one is in the sense of being rational or powerful, the less one will seek to be sui iuris in
the sense of acting independently of the interests (demands/requests) of others; conversely, the more
24g
24~ Steil/berg / History
J.D. Steinbery Histur}' ur Eurupeun Ideus 34 (2008) 239-249
ojEuropeol/ldeas
independently one acts, the less powerful one is likely to be. There is nothing paradoxical about this account,
so long as we distinguish between these two sens senses
es of being sui iuris.
iur!s.
Only one of these senses of being sui iuris signifies a valuable condition, all things considered. If we are to
salisfy
satisfy our basic inleresls,
interests, we must
musl join with
wilh others
olhers (TF
(TP 2/13), and lhisthis requires lhal
that we sacrifice our
independence ar autharity (sub potestate) of the sovereign. Spinoza teils
or potestas, putting ourselves under the authority
us directly that one "must carry out every command laid upon him by common decision; or (by Section 4 of
this Chapter) be compelled to do so by right" (T? (TP 2/16). One must sacrifice the right to "live as [one's] own
na lure and judgment
nature judgmenl dictate[s]"
diclale[s]" (TF
(TP 2/9) in order to lo live in security.
securiLy. And because lhe the individual in a
commonwealth has "no right to decide what is fair or unfair, moral or immoral," Spinoza maintains that the
"citizen is not in pos
possession
session of his own right [non sui iuris], but is subject to the right of the commonwealth"
(TP 3/5). Since reason dictates that we become citizens, rather than enemies ofthe state, it also decrees that we
(T?
consign ourselves to subjection, for in this subjection
subjectionlies
lies our security and our power (TF (TP 3/6).
Spinoza's claim lhal
that one cannot
cannol remain sui iuris, in lhethe sense of being free from subjecLion,
subjeclion, seems tolo lie
athwart the view advanced in the TTF TTP that in a democracy one can retain one's naturalliberty. Here the claim
seems to be that this sort of liberty or right over oneself must be sacrificed if one wants to live in peace and
fiourish. What really matters
malters for
far Spinoza is not whether one retains one's naturalliberty, but rather whether
one takes provisions to be as powerful as possible. The sense of "being sui iuris" that refers to a valuable
condition is synonymous with "being free," which in both the Ethics and the political works signifies a
condition of control over one's affects and actions. This is illustrated in Ethics IVP73, where Spinoza writes
that one is "more free in astate, where he lives according to a common decision, than in solitude, where he
himself' (11/264).
obeys only hirnselj" It is freedom, in the
(Il/264). IL lhe sense of power, that
thaI malters, not
nOl independence. The sense of
being sui iuris, or free, about which Spinoza most cares is not the natural liberty or authority of the
republicans, but rather the Iiberty
liberty that consists in rational self-contro1.
self-contro!.
On lhe
the basis of the
lhe preceding discussion, we are now in a position 10 to bring lhe
the contrast
conlrasl between
belween Spinoza's
account and the republican ideal of liberty into full relief. Let us recall that advocates of the latter model
conte nd that, as Skinner puts it, "a se1f-governing
contend self-governing republic is the only type of regime under und er which a
COnll11unity
community can hope to lo allain greatness
grealness alat lhe
the same time as guaranteeing
guaranleeing its ciLizens
citizens lheir
their individual
liberty.
liberty.,,26
,,26 In short,
shart, accarding
according to the republic tradition, living in a self-governing republic is at least a
necessary, if not also a sufficient, condition for the liberty of citizens 27 It Tt should be dear from the analysis in
section two that, pace Prokhovnik, for Spinoza politicalliberty consists not in being a citizen in a republic, but
rather in power and interest-satisfaction. Astate need not be self-governing in the strict sense (non-
monarchical) in order to be free, since even monarchies can be rationally organized and can thus empower its
monarchieal)
citizens.
Spinoza's account of liberty
Iiberty stood him
hirn in good stead in post-I 672 Holland. Some Dutch Outch republicans, like
Iike
Pieter De
Oe la Court,
Courl, argued that
lhal freedom is only possible within
wiLhin a strictly
striclly popular government
governmenl and so was only
properly gained in the lhe Oulch
Dutch republic afler
after the death
dealh of William 11, H, the
lhe stadholder
sladholder or quasi-monarchical
figure, in 1650. This conception of liberty gave one a powerful incentive for far instituting or
ar defending a purely
republican form of government, but left its proponents with little to say about the prospects of Iiberty after the
stadholdership was reestablished in 1672, in the person of William 111. III. In the TF-which
TP-which was written after,
and perhaps prompted
prompled by, thelhe events
evenls of 1672-Spinoza scoffs
scofTs at
al the
lhe emphasis on regime-types, remarking that lhal
"the people of Holland thought that to regain their freedom they had only to secede from fro111 their count and cut
off the head of the body politic; they never thought of reorganizing their state, but left all its other parts in
their original form; and so Holland has been left a county without a count [cornitalus Comite], like
[comitatus sine Comile], Iike a body
26"The Republican Ideal of Political Liberty," Alachiarelli Republicanism, ed. Gisela Bock, Quentin Skinner, Maurizio Viroli
and Republicunism,
lvluchiuvelli und
(Cambridge: Cambridge L"niversity
University Press, 1993).
1993), 303.
27 Skinncr again: "thcir thesis-lo
thesis-tu pul possiblc-is that iL
puL it as bluntly as possible-is it is only
on1y possiblc Lu
to bc
be free
frcc in a free
frcc state"
statc" (Liherty Be/öre
Before
Liberalism, 60). See Machiavelli's claim that free cities
Liberalism. eities are those that are "governed by their 0\\'l1
own will"
\vill" [per 101'0 arbitrio] (The Discourses,
10ro arbitria]
trans. Leslie J. Walker, Brian Richardson, ed. and Introduction
Introdllction Bernard Crick
Criek (London: Penguin, 1983), I, 2.
Spinoza and Law 411
without a head, and the real government has been left without a name" (TP 9/14; cf. TTP 18/201-203). His
point is that the way in which a commonwealth is organized specifically, whether the interests of all its
members are held in equilibrium or not-matters far more than its nominal form?S form. 28 By de-emphasizing the
importance
imporlance of regime form, Spinoza deviates
deviales from orlhodox
orthodox republicanism
republicanism.29 29
Furthermore, whereas most advocates of the republican conception of liberty in Spinoza's time regarded
"being free" as a binary
binat-y predicate either one was free (i.e., a cicitizen
ti zen of a republic) or one was not Spinoza
conceives of liberty as a matter of degree, corresponding to the degree of one's power of acting. By
emphasizing organization ralher thanlhan regime lype,
type, and by regarding liberty
liberly as a gradualed concepl,
concept, Spinoza
was able to maintain that, if the commonwealth is well-constituted, "people can preserve quite a considerable
degree offreedom under a king" (TP 7/31).30 Seen in this light, it should be dear that the Tractatus Politicus is
not a treatise in defense of republican liberty. Indeed, it is more appropriate to regard it as a handbook for the
stad holder, an account of how the freedom of citizens can be advanced, and how the state can fiourish,
stadholder, flourish, even
when the purity of the
lhe purily lhe republic has been lost.