Spinoza and Law

Philosophers and Law

Series Editor: Tom Campbell

Titles in the Series:

Cicero and Modern Law Marx and Law

Richard 0. Brooks Susan Easton

Aquinas and Modern Law Hobbes on Law

Richard 0. Brooks and James Bernard Murphy Claire Pinkelstein

Aristotle and Modern Law Foucault and Law

Richard 0. Brooks and James Bernard Murphy Ben Golder and Peter Fitzpatrick

Augustine and Modern Law Derrida and Law

Richard 0. Brooks Pierre Legrand

Plato and Modern Law Hume and Law

Richard 0. Brooks Ken Mackinnon

Locke and Law Gadamer and Law

Thom Brooks Francis 1. Mootz 111

Rawls and Law Nietzsche and Law

Thom Brooks Francis 1. Mootz 111 and Peter Goodrich

Rousseau and Law Wittgenstein and Law

Thom Brooks Dennis Patterson

Kant and Law Hegel and Law

B. Sharon Byrd and Joachim Hruschka Michael Salter

Spinoza and Law

Andre Santos Campos
Spinoza and Law

Edited by

Andre Santos Campos

New University ofLisbon, Portugal
First published 2015 by Ashgate Publishing

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Contents

Acknowledgements vii
Series Preface ix
Introduction xi

PART I SPINOZA'S THEORY OF LAW

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

PART 11 NATURAL LAW

5 Errol E. Harris (1984), 'Spinoza's Treatment ofNatural Law', in C. De Deugd (ed.),

Spinoza's Political and Theological Thought, Amsterdam: North-Holland Publishing
Company, pp. 63-72. 69
6 Edwin Curley (1991), 'The State ofNature and Its Law in Hobbes and Spinoza',
Philosophical Topics, 19, pp. 97-117. 79
7 Aaron Garrett (2003), 'Spinoza as Natural Lawyer', Cardozo Law Review, 25,
pp. 627-4l. 101
8 Matthew J. Kisner (2011), 'The Natural Law', in Spinoza on Human Freedom,
Cambridge: Cambridge University Press, pp. 112-34. 117

PART 111 THE NATURE OF LAWS

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

12 Andre Santos Campos (2012), 'Laws ofNature', in Spinoza 's Revolutions in

Natural Law, Basingstoke: Palgrave Macmillan, pp. 53-88. 209
13 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. 249

PART IV CIVIL LAW AND INTERNATIONAL LAW

14 Gail Belaief(1971), 'The Concept ofCivil Law in Spinoza', in Spinoza's

Philosophy oj Law, The Hague: Mouton, pp. 13-33. 271
15 Manfred Walther (2003), 'Natural Law, Civil Law, and International Law in
Spinoza', Cardozo Law Review, 25, pp. 657-65. 293
16 H. Lauterpacht (1927), 'Spinoza and International Law', British rear Book oj
International Law, 8, pp. 89-107. 303
17 G.A. van der Wal (1985), 'Spinoza and the Idea of Reason ojState',
Studia Spinozana, 1, pp. 275-304. 323

PART V INDIVIDUAL RIGHTS

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

Name Index 413

Acknowledgements

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.

Every effort has been made to trace all the copyright holders, but if any have been inadvertently
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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

Spinoza as a Legal Theorist

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 vast majority of exceptions are to be found in this volume.

The texts in this volume follow the standard abbreviations for Spinoza's works. For instance,
citations of the Theological-Political Treatise [TTP] usually refer to the chapter, followed by page
number; citations of the Political Treatise [TP] refer to the chapters and sections (tor example, TI/4
refers to chapter TI, section 4); citations ofthe Correspondence [Ep] refer to the letter's number, usually
followed by page number. The following abbreviations for the Ethics are usually adopted: numerals after
an E refer to parts; 'P' to proposition; 'C' to corollary; 'D' to definition; 'dem.' to demonstration; 'S' to
scholium; 'ax' to axiom (for example, 'E4P34' refers to Ethics, part 4, proposition 34). Translations tend
to derive from Edwin Curley's edition of Spinoza's works (Spinoza, 1985) or from Samuel Shirley's
translations (Spinoza, 2002). Reterences to the original Latin texts are to Carl Gebhardt's edition
(Spinoza, 1972), by page number (included in most modern editions).
According to Spinoza, every definition must be conceived by an intellect, and is hence a nominal
definition; and it must be an expression of reality, that is, an affirmation of what things are in themselves
at the outset and self-evidently, thus being also adefinition 01 a thing. See Ep 9. On this distinction, see
Gueroult (1968, pp. 20-26); Macherey (1998, pp. 28-54); for an alternative, albeit similar, distinction
between apriori and aposteriori definitions, see Meshelski (2011).
 Spinoza and Law xiii

philosophical problems. Consequently, he endangered the very distinction between implicit

and explicit senses ofphilosophy of law.
On the one hand, ifthere is a philosophical tradition that takes law into account only inside
discussions concerning metaphysics, politics and ethics, without the ambition to develop an
intentional legal theory, it might be problematic to even conceive ofa wide sense ofphilosophy
of law. [n fact, do such extra-legal derivations constitute an original philosophical thought
about law or rather mere extrapolations feigned by interpreters from metaphysical, political
and ethical grounds? [f remarks ab out the law can be found only in, say, amoral theory
in which they perform an important role, then they are more likely to be ethics in a wide
sense (applied to law) rather than philosophy of law; if, however, they are implicit in such a
moral theory albeit not performing a relevant role, then they are simply latent consequences
of ethical presuppositions and do not constitute philosophy of law insofar as they could be
reached regardless ofwhether the philosopher in question said anything about law or not.
On the other hand, the intent to generate a philosophy oflaw whose explicitness demarcates
the object of study in such a way as to coexist peacefully with other philosophical disciplines
is likely to be frustrated. Disciplinary autonomy seems to imply a conceptual neutrality
(mostly with regard to metaphysics, political theory and ethics) ofphilosophical approaches
to the nature, the value and the function of the law - or, at most, the absence of disciplinary
heteronomy. However, the difficulties in providing a satisfactory legal definition ofwhat the
law is without falling into circular arguments prompt philosophical theories of law in the
specific sense to accept being bequeathed with conceptual tools belonging to other disciplines.
For instance, even a 'pure theory of law' cannot help being a general theory of law and state,
thus incorporating elements typical ofpolitical theories. And it is hard to find a legal theory,
whether committed to natural law or set in the camp of legal positivism, that does not trace
the criteria for the validity of law back to fundamental assumptions established in ethics, in
sociology, in linguistics or in political theory.
Spinoza overcomes these difficulties in an original way. He seems to develop an explicit
philosophy of law that is interdisciplinary in nature and therefore also implicit elsewhere. This
can be perceived very subtly, which is why it requires further explanation.

Systemic Interdiscip[inary Phi[osophy of Law

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

The disciplinary indeterminacy of Spinoza's considerations on law is troubled with the

same methodological indeterminacy that affected his political thought in Spinoza scholarship
for years. Until the early twentieth century, Spinoza's political thought was generally regarded
as a mere democratic version of Hobbesian politics, until authors such as Leo Strauss (1997
[1930]) and Gioele Solari (1949) endeavoured to bring down the curtain separating his political
theory from its metaphysical bases. The subsequent reaction led Spinoza's political theory so
astray from Hobbesian philosophy that it was entirely swallowed by his ontology ofNature.
Whereas his political treatises were regarded previously as mere amendments to Hobbes's
political theory, they were now absorbed entirely by the first parts of the Ethics. 5 A new
middle stance, however, prompted mostly by French commentators in the 1960s influenced by
Louis Althusser's studies, ended up establishing the presence of an original political thought
in Spinoza's political treatises and in part IV of the Ethics, which were then considered
actual relevant political texts rather than mere derivations making explicit what was already
implicit in the metaphysical texts. This middle stance regarded Spinoza's philosophy as one
incorporating an original political dimension in the history ofmodern political thought; at the
same time, it focused on his political theory without necessarily depending upon a profound
analysis of his metaphysics.
Nevertheless, the disciplinary autonomy of Spinoza's political thought remained difficult
to determine. In fact, some commentators vindicated the exact opposite view of those who
diluted his political thought into his ontology of Nature: they chose rather to claim that
metaphysics and ontology were to be found in his political texts, not the other way round.
Thus, ifSpinoza's God were understood less as productive immanence and more as a rejection
of transcendence, that would be a mere metaphysical instrument to politically subvert
theocracy's God; if Spinoza's Nature were understood less as an overall inclusion of being
and existence and more as a rejection ofthe creational idea of causality, that would be a mere
metaphysical instrument to politically subvert the God ofrevealed religions; and if Spinoza's
notion ofthe soul were understood less as the body's idea in action with an expressive eternity
and more as a personal identity perishable with the body, that would be a mere metaphysical
instrument to politically subvert the post mortem framework of rewards and punishments
used by theologians (Stewart, 2006, pp. 156-82).
These extreme views that either undervalued or overvalued Spinoza's political thought
seem to depend upon some misleading arguments, though. Those who confine politics
to his metaphysics do not seem to understand how his political considerations resort to
multidisciplinary concepts such as immanence and necessary causality in order to apply them
to the political realm with the purpose of overcoming the gap between metaphysics and praxis.
IfSpinoza's political ideas were entirely in his metaphysical texts, then there would not be any
political theory at all- only metaphysics applicable to politics. But ifthose same ideas are to
be found first and foremost in his political writings, which in turn develop certain concepts
established in the metaphysical texts, then political theory becomes an important element in
an interconnected system ofphilosophy - a system that is not partitioned into several isolated
shelves, but rather one in which several concepts traverse different philosophical disciplines.
On the other hand, those who confine his metaphysics to his political ideas do not seem
to understand his method for philosophizing. For Spinoza, the beginning of all philosophy is

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.

Natural Lawyer or Legal Positivist?

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)

And, in the Palitical Treatise,

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.

Natural Law as Power and Efficacy

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

Alexy, Robert (1999), 'My Philosophy ofLaw: The Institutionalisation ofReason', in Luc J. Wintgens
(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.
Gonella, Guido (1934), oll diritto come potenza secondo Spinoza', in Spinoza nel Terzo Centenario
della sua Nascita, in Rivista di Filosofia neoscolastica, XXV, Milan: Societa Editrice Vita e Pensiero,
pp. 149-80.
Hampshire, Stuart (2005), Spinoza and Spinozism, Oxford: Clarendon Press.
James, Susan (2012), Spinoza on Philosophy, Religion and Politics, Oxford: Oxford University Press.
Lagree, Jacqueline (2002), 'Spinoza et la norme du bien', in Jacqueline Lagree (ed.), Spinoza et la
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.
Magliano, Franco (1947), Jl diritto nel sistema di Benedetto Spinoza, Milan: Fratelli Bocca.
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.
Menzel, Adolf (1904), 'Homo sui iuris: Eine Studie zur Staatslehre Spinozas', Zeitschrift für das Privat
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:
Bibliopolis, pp. 355-66.
Moreau, Pierre-Franyois (1985), 'Spinoza et lejus circa sacra', Studia Spinozana, 1, pp. 335-44.
Mugnier-Pollet, Lucien (1976), La philosophie politique de Spinoza, Paris: Vrin.
Mugnier-Pollet, Lucien (1977), 'Relations internationales et etat de nature selon Spinoza', Giornale
critico dellafilosofia Ualiana, 56, pp. 489-99.
Nadler, Steven (2006), Spinoza s Ethics: An Introduction, Cambridge: Cambridge University Press.
Negri, Antonio (2003), The Savage Anomaly: The Power 0/ Spinoza s Metaphysics and Politics, trans.
Michael Hardt, Minneapolis, MN: University ofMinnesota Press.
Pollock, Frederick (1921), 'Spinoza's Political Doctrine with Special Regard to His Relation to English
Publicists', Chronicon Spinozanum, I, pp. 45-57.
Rasmussen, Douglas B. and Uyl, Douglas J. Den, 'Agent Centeredness and Natural Law: Perfectionism,
lmmanence, and Transcendence', in Jonathan A. Jacobs (ed.), Reason, Religion and Natural Law:
From Plato to Spinoza, Oxford: Oxford University Press, pp. 222-58.
Scruton, Roger (2002), Spinoza: A Very Short Introduction, Oxford: Oxford University Press, 2002.
Steinberg, Justin (2009), 'Spinoza on Civil Liberation', Journal 0/ the History 0/ Philosophy, 47,
pp. 35-58.
Yan Bunge, Wiep, Krop, Henri, Steenbakkers, Piet and van de Yen, Jeroen (eds) (2011), The Continuum
Companion to Spinoza, London: Continuum; reprinted as The Bloomsbury Companion to Spinoza,
London: Bloomsbury, 2014.
Verdross, Alfred (1928), 'Das Völkerrecht im Systeme von Spinoza', Zetischriji fiir öffentliches Recht,
7, pp. 100-105.
Walther, Manfred (1985), 'Die Transformation des Naturrechts in der Rechtsphilosophie Spinozas',
Studia Spinozana, 1, pp. 73-84.
Walther, Manfred (2008), 'From potestas multitudinis in Suarez to potentia multitudinis in Spinoza:
The Foundation ofDemocracy Inverted', Studia Spinozana, 16, pp. 129-54.
Wetlesen, Jon (1979), The Sage and the Way: Spinoza s Ethics o/Freedom, Assen: Van Gorcum.
 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

SPINOZA'S THEORY OF LAW 1033

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

1034 COLU MBIA LAW REVIEW

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

12. MERRIAM, AHISTORY OF AMERICAN POLlTlCAL THEORIES 76 (1924).

13. TRACT. POLlT., c.1.
14. ETHIC, iii, praef.
15. ETHIC, iv, 35.
16. 2 L. WORKS 91 ; 1 ELWES 11.
17. 1 L. WORKS 29; 2 ELWES 35.
18. JOACHIM, SPINOZA'S TRACTATUs DE.INTELLECTUS EMENDATIONE204 (1940).
6 Spinoza and Law

SPINOZA'S THEORY OF LAW 1035

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

Spinoza's theory of the nature of law is a clear anticipation of an idea

which has been an influential one from Kant to the present day. It is the
19. EI'. 82., WOLF, THE CORRESPONDENCE OF SPINOZA (1928) 364; JOACHIM, A STUDY
OF THE ETHICS OF SPINOZA (1901) 11S et seq.
20. 2 L. WORKS 172; 1 ELWES 99.
21. 2 L. WORKS 4; 1 ELWES 288.
22. Pollock, Spilloza's Political Doctrille, 1 CHRONICON SPINOZANUM 48 (1927).
 Spinoza and Law 7

1036 COLUMBIA LAW REVIEW

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-

23. TRACT. POLlT., c.3.

24.2 L. WORKS 89; 1 EL\VES 7.
25. MACHIAVELLI, DrSCOURSES (Mod. Lib. ed. 1940) 105-106; BODIN, Srx BOOKES
OF A COMMON\VEALTH 47 (Knolles trans. 1606).
26. 4 WORKS 464 (1889).
8 Spinoza and Law

SPINOZA'S THEORY OF LAW 103'(

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

27. 2 L. WeRKS 134; 1 ELWES 57.

 Spinoza and Law 9

1038 COLUMBIA LAW REVIEW

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

SPINOZA'S THEORY OF LAW 1039

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

32. FRAG. 91.

33. DE RE PUllLICA II!, 22.
34. QUOD OMN. PROB. 46.
35. Drv. INST. V, 18.
36. DE Lm. ARB. I, 6. 15. 32 Migne, P ATROLOGIAE LATIN AE
1229 (1861).
37. DECRETUlIf, D.i.
38. The History 01 the Law 01 Nature, 1 COLUMBIA LAW REv. 11, 17 (1901). See
also 2 CARLYLE, HISTORY OF MEDlAEVAL POLlTICAL THEORY IN THE WEST 98 (1909);
Salmond, Tlre Law 01 Nature, 11 L. Q. REV'.121, 132 (1895).
39. 2 CARLYLE, op. eit. suPra note 38, at 109 et seq.
 Spinoza and Law 11

1040 COLUMBIA LAW REVIEW

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

40. SUMMA THEOLOGICA, I-II, 91, Arts. 1, 2, 4.

41. LAWS OF ECCLESIASTICAL POLITY Bk; I (1594).
42. DE JURE BELL! AC PACIS LmRI TRES Bk. 1, c.l, X (1625).
43.2 L.WORKS 136; 1 ELWES 59.
44. SUMMA THEOLOGlCA, II-II, 57, Art. 2.
12 Spinoza and Law

SPINOZA'S THEORY OF LAW 1041

have invo1ved an eterna1 necessity and truth. N everthe1ess, Scripture states

that God did give this command to Adam, and that Adam ate of the tree.
Spinoza concludes that we must perforce say that God revea1ed to Adam the
evi1 that wou1d follow upon his act, but did not disclose that the evi1 wou1d
of necessity come to pass. Adam took the revelation to be not an eternal and
necessary truth, but a 1aw; an ordinance followed by gain or 10ss. Through
Adam's lack of know1edge God was thought of by hirn, in his ignorance,
as a lawgiver and potentate.
Spinoza's example contains some elements of obscurity. If he means that
man can transform the necessity of God's commands into obligations which
he is free to follow or ignore, man can also construct three angles of a triangle
that are equal to four right angles. It is true that non-Euclidean geometry
may perform such feats, hut, nonetheless, it still preserves the idea of neces-
sity. Spinoza, in fact, seems here to he attempting to adapt to his own posi-
tion an idea worked out by Aquinas. Eternal law, Aquinas held, is binding
upon the whole of nature in all its actions and movements because God has
imprinted upon it the prineiples of its proper actions, i.e'J neeessity. However,
the eternal law mere1y obligates man, since he is rational and subjeet to pas-
sions, and his know1edge of what is good, and his inc1ination towards it, may
be imperfeet.45 Man is therefore free to break the eternal law but not with
impunity. The substanee of his thought seems to be that the evil resulting
from the breaking of eternal law is a necessity even in cases where the ob-
servanee of the law is not a neeessity.
However eonfusing Spinoza's argument and examples may be, his inten-
tion is clear enough. He wishes to preserve the idea of necessity, as bis ex-
amp1e of the tri angle shows. He wishes to deny that God is a lawgiver whose
edicts ean be ignored with impunity, and to deny also that the law of the
Seriptures binds neeessarily. In part this task had already been performed
by Gratian through bis doctrine of nzistica, or regulations which, under cer-
tain cireumstanees, may be altered sinee they are concerned with ceremonies
and sacrifices, and which differ therefore from the moral preeepts (e.g., Thou
shalt not kill), which are immutable.46 Spinoza generalizes this idea to in-
cIude all the injunctions of the Seriptures exeept that universal law which
signifies the true manner of life, and not ceremonial observances. He argues,
for example, that Moses does not teach the Jews as a prophet not to kill or
steal, but gives these commandments soIe1y as a Iawgiver or judge. He does
not attempt to justify his doetrine rationally, but affixes for its non-observ-
anee a penalty which may and very properly does vary in different nations.
45. Jd., I-II, 93, Art. 6. In El'IST. XIX Spinoza attempts to answer a criticism of
his position advanced by Blyenbergh. However, here he does not assume that God in
fact instructed Adam not to eat of the forbidden fruit. The Scriptures, he says, should be
understood as a parable, and should not be taken literally.
46. 2 Carlyle, supra note 38, 109.
 Spinoza and Law 13

1042 COLUMBIA LAW REVIEW

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

SPINOZA'S THEORY OF LAW 1043

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

LAW OF THE STATE

Although Spinoza was an individualist he insisted that the individual
could attain his highest good only in the State. In the state of. nature each
person judges what is good and evil, consults his own advantage as he thinks
best, avenges himself, and endeavors to preserve what he loves and to de-
stroy what he hates. This condition could be tolerated if men lived accord-
ing to the guidance of reason; for then every one wou1d enjoy the benefits
of the state of nature without injuring any one else.55 But men are subject to
passions which are stronger than human power or virtue, and their interests
draw them in different directions. Inevitably they discover that by mutual
he1p they can more easily proeure the things they need, and that it is only by
their united strength they can avoid the dangers which everywhere threaten
them.50
Men must therefore necessarily come to an agreement to live together in
harmony and be a he1p to one another. Only in this way will they be able to
enjoyas a whole the rights which naturally belong to them as individuals. By
the agreement they will cede their natural right and instill confidence in each
other that they will do nothing to injure each other. However, no one will
abide by his promises unless under the fear of a greater evil, or the hope of
a greater good. Society must therefore claim for itse1f the right possessed
by man in astate of nature; it must also possess the power to prescribe a
common rule of life, to promulgate laws and support them, not by reason,
which cannot restrain men, but by penalties. So far this theory appears in-
distinguishable from Hobbes' doctrine. But the conclusions which Spinoza
drew from the theory would not have been recognized by Hobbes. He suc-
ceeded in this accomplishment by virtue of the principle-which he held
clearly differentiated his doctrine from Hobbes'-that natural right as ex:er-
cised by the State must be preserved intact so that the supreme power in a
State has no more right over a subject than is proportionate to the power by
which it is superior to the subject.57 By this Spinoza meant that in the civil
state as well as in the natural state, right would be identified with power.
Here Spinoza anticipates the objection that it is contrary to reason to sub-

54. 2 L.WoRKS 306; 1 ELWES 259.

55. ETHIC 210.
56. ETHIC206; 2 L.WORKS 260; 1 ELWES 202.
57. Ep.50.
 Spinoza and Law 15

1044 COLUMBIA LAW REVIEW

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

58. 2 L.WORKS 14-15; 1 ELWES 303.

59., 2 L.WORKS 306; 1 ELWES 259.
16 Spinoza and Law

SPINOZA'S THEORY OF LAW 1045

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

60. 2 L.WORKS 23; 1 ELWES 313.

61.2 L.WoRKS 20; 1 ELWES 309.
62. 2 L.WORKS 12, 263; 1 ELWES 206, 299.
63. 2 L. WORKS 36, 298; 1 ELWES 249, 330.
64. 2 L.WoRKS 23, 136; 1 ELWES 59, 313. "Security", writes Bentham, "is the pre-
eminent object" of law. THEORY OF LEGISLATION 97 (1864).
65. 2 L.WORKS 306; 1 EL\VES 259.
66. 2 L.WORKS 12; 1 ELWES 298.
 Spinoza and Law 17

1046 COLUMBIA LAW REVIEW

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

67. 2 L.WORKS 14; 1 ELWES 302.

68. 2 L.WoRKS 23 ; 1 ELWES 313-14; ETHIC21O.
69. 2 L. WORKS 327; 2 ELWES 276.
70. IMMANUEL !CANT 81-82 (Wilm ed., 1925).
71.2 L. WORKS 34; 1 ELWES 328.
72. 2 L.WoRKS 78; 1 ELWES 382.
18 Spinoza and Law

SPINOZA'S THEORY OF LAW 104'1

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

73. 2 L. WORKS 78; 1 ELWES 381.

74. 2 L.WORKS 79; 1 ELWES 383.
75. 2 L.WORKS 25; 1 ELWES 316.
76. 2 L. WORKS 271; 1 ELWES 217.
77.2 L.WoRKS 14,307; 1 ELWES 260, 302.
78. 2 L.WORKS 268; 1 ELWES 211-212.
79.2 L.WoRKS 17; 1 ELWES 305.
80. INSTITUTES 4. 20. 25. GOOCH, ENGLISH DEMOCRATIC IDEAS IN THE SEVENTEENTH
CENTURY 5 (Zd ed. 1927).
 Spinoza and Law 19

1048 COLUMBIA LAW REVIEW

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

2. Laws of Nature and Natural 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).

See A. Matheron, 'Spinoza et le pouvoir', in Anthropologie et politique au XVJJe siecle (Etudes

sur Spinoza), Paris 1986, p. 116: 'la situation plus oppressive qui soit ... un despotisme sans despote,
anarchique et proteiforme' .
9 For further developments, see O. Ueno, 'Spinoza et le paradoxe du contrat social de Hobbes, "Le
reste"', Cahiers Spinoza 6 (1991), pp. 269-295; and H. BIom, 'The moral and political philosophy of
Spinoza', in G.H.R. Parkinson (ed.), The Renaissance and Seventeenth-century Rationalism (Routledge
History ofPhilosophy, Volume IV), LondonlNew York 1993, pp. 313-348.
24 Spinoza and Law

3. 'CiviI' Law in the State

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.

4. State and Natural Right

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

15 M. Walther, 'Die Transformation des Naturrechts in der Rechtsphilosophie Spinozas', Studia

Spinozana 1, Hannover/Alling 1985, p. 75.
16 Walther 1985, p. 89.
 Spinoza and Law 27

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.

6. The Balance of Powers

Traditionally, the principle of separation ofpowers is an important instrument to protect citizens

against arbitrary interferences and abuse ofpower. Checks and balances are a complement to
the distribution ofpower among the -legislative, executive, andjudicial- branches or powers
of govemment. Montesquieu was aware ofthe fact that abuse ofpower should be prevented by
creating an institutional structure in which power is distributed among various govemmental
institutions. Without a balance of power, freedom will inevitably perish. 25 Montesquieu,
therefore, advocated a division of labour in order to establish a balance. Consequently, 'the
separated persons not only checked each other; they were functionally specialized' .26 In brief,
not a total isolation of the three branches of govemment, but rather aseparation that is able
to prevent any one of them from monopolizing govemmental power. Indeed, though it is
possible to define different functions of govemment, it is often impossible to allocate them
exclusively to different branches of govemment. Instead of a strict version of the separation
ofpowers, therefore, we should think more in terms of checks and balances ofpowers. This is
the dynamic model ofthe separation ofpowers: an institutionalized balance ofpowers.
Spinoza's views on the institutional organization and structure of the state are determined
by the question ofhow to guarantee the durability and stability of a given form of govemment,
so as to safeguard the peace and security of the citizens. His views emerge in his detailed
discussion of monarchy and aristocracy. There are two central ideas in the drafting of the
constitution: first, the linking principle; and, consequently, a system of checks and balances.
The linking principle implies that good govemance - the basis for the well-being of all- is
only possible if the personal interests of rulers and ruled alike is linked to the public interest
(TP VI.3), whether they like it or not. Members of public bodies, such as counsellors, can
only be appointed when their private fortune and advantage depend on the general peace and
welfare of all, for human nature is so constituted that 'each pursues his personal advantage

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.

7. Spinoza and Legal Positivism

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

In addition, positive law must be understood as a normative order attempting to achieve

a particular human behaviour through the prescription that unlawful (illegal) actions entail a
coercive act, a so-ca lied sanction (ein Zwangs akt als Unrechtsfolge als sogenannte Sanktion
erfolgen soll). The validity of such a normative order is based on two facts, namely, that
this positive law is established and promulgated (gesetzt) according to certain procedural
requirements by a competent agency (authorized by a valid legal norm) and that this law is
effective to some extent.
The result of legal positivism, according to Kelsen, is the separation of law and morality,
and consequently the separation of law and natural law, which is part of morality. The
conceptual separation of law and morality does not imply explicitly the rejection ofthe claim
'that law should be consistent with morality and with justice in particular, that it should be
just right'.34 Nonetheless, for Kelsen, law and morality are not conceptually connected by
necessity. Positive law takes precedence even when its content is unjust. In other words,
(extremely) unjust but effective laws are still law.
As shown above, Spinoza's definition of' law' entails that law is a normative order created
by human beings. Law contains rules with normative force regulating human behaviour.
Because of unwillingness or lack of understanding among the norm-addressees, however,
compliant behaviour is not guaranteed. Therefore, rewards and sanctions should be linked to
legal norms. In order to be effective, the law must be accompanied by a system of coercive
measures. Thus emerges the coercive nature of law. Nonetheless, one should not forget that
legislation (or effective laws) is only possible 'on those matters which appear desirable or to
which sanctions can be attached as adequate incentives' .35
Spinoza's overall definition of law implies that individuals who fall under it behave in
accordance with its contents. If this is not the case, we cannot speak of laws. This means,
according to Walther, that the prescription of certain behaviours by legal authorities (Iaws in
the proper sense) that are ignored en masse cannot be called laws. Because many individuals
do not behave as intended, the issued command lacks the hallmark of law. Indeed, laws are
only valid in astate if 'most of the citizens are restrained by them' (TP 111.8). In other words,
effectiveness is a constitutive requirement ofpositive law.
Thus, the similarities between Spinoza's theory of law and Kelsen's legal positivism are
uncovered. Both profess a legal theory which states that law is a coercive order established
by men which is to some extent effective. In other words, an order in which failure to comply
with the norm will be met with sanctions against the offenders.
But this does not mean that positive law and the personal moral beliefs influencing the
behaviour of citizens are completely independent of one another. Insofar as people think and
act rationally, they will choose the lesser oftwo evils whenever positive law is in conflict with
their moral convictions. They will comply with the civil laws because the disadvantage of
the infringement oftheir moral convictions 'is far outweighed by the good they derive from
the civil order itself' (TP 111.6), namely as the prerequisite for survival and self-development.
Therefore, in a free republic, submitting to orders has nothing to do with slavery; it means
obeying the law of reason, and thus being free.

34 Kelsen 'Was ist juristischer Positivismus?', 1968, p. 950.

35 G. Belaief, Spinozas Philosophy ofLaw, The HaguelParis 1971, p. 17.
34 Spinoza and Law

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

36Walther 1985, p. 412.

37In TTP XVII, pp. 201-202 Spinoza deals with the boundaries inherent in human behaviour. Cf.
Walther 1990, p. 248.
3& Th. Hobbes, Leviathan [1651], Chapter 24.
39 R. Spaemann, 'Kants Kritik des Widerstandsrecht' , in Z. Batscha (ed.), Materialien zu Kants
Rechtsphilosophie, Frankfurt am Main 1976, pp. 347-358.
 Spinoza and Law 35

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.

40 Spaemann, 'Kants Kritik des Widerstandsrecht' , 1976, p. 350.

36 Spinoza and Law

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.

41 See, tor instance, TP VII.20 and TP X.S.

 Spinoza and Law 37

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

* Originally published as Roberto Ciccarelli, Potenza e beatitudine. 11 diritto nel pensiero di

Baruch Spinoza (Rome: Carocci, 2003), chapter 3, pp. 89-98. English translation by Andre Santos
Campos.
2 See M. Walther, 'Die Transformation des Naturrechts in der Rechtsphilosophie Spinozas',
Studia Spinozana 1 (1985): 73-84.
2 See Hans Kelsen, General Theory 01Law and State, ed. Anders Wedberg (Clarck: The Lawbook
Exchange, 2009).
3 See S. Cotta, Tl diritto neU 'esistenza. Linee di ontolenomenologia giuridica (Milan: Giuffre,
1985), pp. 9ff
40 Spinoza and Law

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

2 See Hans Kelsen, General Theory 0/ Law and State, Appendix.

ofLaw
 Spinoza and Law 43

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

2 See Hans Kelsen, General Theory 01 Law and State, Appendix.

2 See A.P. d'Entreves, Natural Law. An Introduction to Legal Philosophy (London: Hutehinson,
1951), pp. 44-45.
46 Spinoza and Law

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**

I. THE HIDDEN TRADITION

Western culture is often said to be the product of two ancient and

venerable traditions: classical Greco-Roman civilization and the Judeo-
Christi an biblical heritage. This mayaiso be true for the legal culture of
the Western world. However, while the classical background has been
much emphasized, especially Roman Law (which is still sometimes
taught at universities), the biblical roots of our legal system have almost
been forgotten or have at least been overlooked for a very long time.
Nevertheless, the biblical tradition shaped many of the tools used in
contemporary legal practice. In fact, scholars first applied several
techniques used by judges for interpreting major legal texts, like the
Constitution, to the Bible and its commentaries.\ In addition, some
modern studies have convincingly shown how the Talmud could give us
a better understanding of the American rule of law.2 In spite of that,
unlike Justinian's Corpus, neither the Bible nor any of its numerous
commentaries are regarded as parts of the Western legal heritage.
Similarly, Jewish thinkers who discussed and sometimes revolutionized
the application and construction of legal texts are for the most part

* 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

608 CARDOZO LA W REVIEW [Vol. 25:2

ignored by the handbooks of jurisprudence. They belong to a "hldden

tradition"3 whlch has deeply affected the course of Western legal
thought over time, but always secretly or from the outside. The story of
thls tradition has yet to be written. 4 Such a hlstory should certainly
include the great figures of Phllo of Alexandria, Mai'monides and
Spinoza, as wen as more re cent scholars such as Leo Strauss and Chaim
Perelman. Among them, Spinoza's contribution is of paramount
importance.
Thls article explains how Spinoza contributed to turning our
conception of the law and the methods of its interpretation upside down.
His contribution has been essential and twofold: (1) Spinoza was partly
responsible for the destruction of the "legal model of thought" (ratio
more juridico), which prevailed until the sixteenth century (and
sometimes later) not only in legal matters but in most areas of scientific
knowledge; (2) Spinoza also played a major role in the shaping of
modem law, which rests upon the summa divisio between, on one hand,
natural law, embedded in natural reason and discovered more
geometrico, and, on the other hand, positive law, which expresses the
will of the sovereign power and rests upon its sole authority. This
division, I will argue, is neither eternal nor self-evident, but an effect of
the strategy followed by Spinoza and a few others in their arduous
struggle against traditional powers and religious authorities.
This analysis focuses on the Theologico-Political Treatise,5 which
is Iargely recognized as the origin of biblical critical studies. 6 In this
book, Spinoza fiercely attacks the conventional techniques of
interpreting traditional authorities, especially the Bible. He suggests
replacing them with a "scientific method" of interpretation, whlch is
still taught today within law faculties. In addition, I occasionally refer
to Thomas Hobbes' Leviathan, which was published a few years before
the Treatise.1 The Leviathan deals with topics similar to those in the
Treatise, often sharing the same premises and providing some hints for
a better understanding of Spinoza's work. Before turning to these texts,
it is first necessary to get an overview of the regime of traditional
knowledge that prevailed until the modem scientific revolution or which

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

2003] DIVORCING POWER AND REASON 609

was supported by Hobbes and Spinoza.

II. THE LOGle OF PRE-MODERN AUTHORITIES

Nowadays, "authority" me ans power. It means the right to

command and to make fmal decisions, as weH as the persons and
institutions exerting such prerogatives. Modem political philosophers,
like Hobbes and Spinoza, emphasized this meaning. In pre-Modem
thought, however, "authority" had a different sense, which did not
exclude power but mainly referred to knowledge. Contemporary
English has kept track of tbis ancient defmition. When calling, for
instance, Paul Volcker "an authority" in financial matters, one does not
refer to his former position as head of the Federal Reserve System,
which he left many years ago, but to his acknowledged expertise in
fmancial issues and to the credibility he enjoys among the fmancial
community. Lawyers also label "authority" a court decision that states
the law on a certain topic and influences further rulings, which defer to
it as a "precedent." This legal meaning is not far from the original
concept of authority.
The word "authority" originally derives from "author," which at
first was not mainly a literary but a legal concept. In Roman law, the
"aue/ar" designated the person from whom another person held his
rights. A deceased father was his children's author and the vendor of a
property, the buyer's author, for instance. Technically, the "authority"
(Jat. auctoritas) was the warranty given by the vendor to the buyer in
order to protect the latter from a possible eviction by a third party.
When the vendor's personal credit was not good enough, a second
author would secure the trans action by adding his own authority. The
scope of the word later extended to designate the quality of a man (a
judge, a priest, a witness or a writer), who could be trusted. Ey
metonymie lapses, it later denoted the man himself and fmaHy the
writing where his opinion or testimony was delivered.B
Medieval scholars used the ward in this sense. More precisely,
they called ancient texts of high value that were officially regarded as
genuine testimonies ofthe truth "authorities." Church Fathers' writings
were preeminent authorities in Theology, as were Aristotle's in
Philosophy and Justinian's Corpus in Civil Law. These texts were said
to be "authentie" (lat. authenticus), which meant that they could be used
as pieces of evidence in order to assert the truth of a statement.
Authorities were the very source of knowledge and the necessary
starting point of any valuable research and teaching. They were the

8 MARIE DOMINIQUE, LA THEOLOGIE AU DOUZIEME SrECLE 353 (1957).

50 Spinoza and Law

610 CARDOZO LA W REVIEW [Vol. 25:2

cornerstones of the scholastic pattern of thought which developed in

European Universities from the twelfth century.
During the moming "lectures" (lat. lectio: reading), professors had
to read and comment on authorities. Students would have to copy them
or leam them by heart. 9 Aftemoons and sometimes evenings were
dedicated to more interactive exercises, especially the quaestio
disputata and the disputatio. 1O A hard case or an issue was then
discussed pro et contra by the students and sett1ed by an academic
judge. Students had to find and develop arguments in favor of either
thesis. Each argument had to be based upon one or several authorities,
which were referred to or quoted directly. Finally, the professor mIed
in favor of the most convincing demonstration. In his ruling, he would
often try to reconcile the contradictory authorities by interpreting them.
He would also interpret the authorities so as to give the correct answer
to the issue at hand, according to his own judgment.
These exercises, carried out mainly for scientific and pedagogical
purposes, looked more or less like modem trials.! [ The law faculties
made the most of them for the training of would-be lawyers.
Nevertheless, the quaestio and the disputatio were by no means
restricted to the legal field, but applied to every discipline taught at the
University, including theology, philosophy, grammar and medicine. 12
Moreover, major scholastic writings, like Thomas Aquinas' Summa
Theologica, were designed on a pattern rather similar to the quaestio.
The Summa raises and organizes a collection of questions. For each of
these questions, Aquinas lists, discusses and interprets the main
authorities pro et contra, before settling the case by a comprehensive
answer, while trying to reconcile the apparent contradictions. Although
based upon a handful of ancient texts, the scholastic culture was thus in
a way dynamic and creative. The technique of the quaestio disputata
allowed, within a limited scope, to raise new issues and to solve them
by discussing and interpreting the established authorities creatively.
In the Christian world, the Bible was of course the supreme
authority. As Aquinas stated at the beginning ofhis Summa Theologica,
God is the authoT of the Sacred Scriptures.B This does not mean that
God actually wrote all the books included in the Holy Writ, but that

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

2003] DIVORCING POWER AND REASON 611

divine authority guarantees the truth and the perfection of these

writings. As a consequence, biblical verses were used as ultimate
pieces of evidence in order to make a point, to settle an issue or to put
an end to a controversy. The superior authority of the Bible prevailed
not only in theology, but also in law and philosophy, as well as in
astronomy and physics.
Theology ranked first among all sciences because of its greater
certitude "derived from the light of divine lmowledge, which cannot be
misled."14 Doctors in theology did not restrict their opinions and
judgrnents to divine matters, but often intervened in inferior spheres,
like law and philosophy, claiming jurisdiction outside the borders of
their own discipline. Church doctors relied upon the authority of the
Bible and its commentaries to impose their own views and to control the
profane sources of lmowledge. This hierarchy was openly professed in
medieval universities and reflected by well-known adages such as
"theologia regina scientiarum" and ''philosophia ancilla theologiae."

III. SPINOZA'S PURPOSE

Chapter XV of the Theologico-Political Treatise is especially

dedicated to the refutation of this latest proverb. It argued that theology
"is not to be subservient to reason nor reason to theology,"IS but that
each of them has its own "province" and should be regarded as entirely
independent from each other. 16 The main purpose of the entire Treatise
is to promote freedom of thought and to free the new phiLosophy from
the traditional authorities and the influence of the Church. Spinoza was
indeed deeply concemed about the violent reactions of re1igious
authorities against the new scientific method, its supporters and same of
its achievements. He had been shocked, like all the new philosophers,
by the injurious treatment inflicted by the Catholic Church upon Galileo
after the publication of the Dia/ogue Concerning the Two Chief World
Systems in 1632. In this book, Galileo promoted Copernicanism against
the authority of AristoHe and the more equivocal authority of the Bible.
The great scientist was summoned to Rome, vehemently accused of
heresy, condemned to house arrest for life and forbidden to pub1ish.
Analagously, Spinoza himse1f feIt the burden ofreligious authority. At
the age of twenty-two, he was expelled from the Jewish community of
Amsterdam because of the "evil opinions" and "the abominable heresies

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.").
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612 CARDOZO LA W REVIEW [Val. 25:2

which he practiced and taught."17 This cherem (excommunication) was

never rescinded.
Spinoza was absolutely convinced of the urgent necessity to
undermine the power of the theologians in order to allow the survival
and the development ofmodem science and rational philosophy. In the
Theologico-Political Treatise, he bitterly attacks those "theologians
anxious to leam how to wring their inventions and sayings out of the
sacred text, and to fortify them with Divine authority."18 In the long run,
the most effective way to get rid of them, or at least to lessen their
influence, would be to refute the system of traditional authorities upon
which they had established their leadership. Above a11, the
interpretation of the Bible was of vital importance. The theologians
relied mainly upon its authority to deny freedom of thought and to label
as heresy the most promising fmdings and opinions of modem science
and philosophy. Moreover, the Bible was the cornerstone of the
scholastic system of knowledge, enjoying the highest and ultimate
authority. To undermine its authority would eventually provoke the fall
ofthe system as a whole.
This task was to be performed by a philosopher, who had primarily
committed himself to the shaping of a new method of knowledge based
on the convincing power of natural reason alone. According to this
method, interpretation itself, wruch necessarily reHes upon prejudice
and authority, was undoubtedly not the right way to proceed. Spinoza
was certainly not very convineed that the interpretation of the Bible,
even perfonned according to the "true method" he reeommended in the
Theologico-Political Treatise, would substantially increase the amount
ofhuman knowledge. Even the words "method of interpretation" sound
like a contradiction in terms since the rationalist method would
precisely exclude interpretation as inappropriate. As a child, Spinoza
must have studied the Torah, the Prophets and the Talmud at the
rabbinie school of the Amsterdam Sephardim community, but he had
since left this eommunity forever and applied his mind to entirely
different books, such as the works of Rene Deseartes. When he
exposed his own philosophy, as for instance in the Ethics, Spinoza
would not use interpretation or commentaries at all but preferably the
ratio more geometrico. As Leo Strauss put it, the method of
interpreting the Bible was for Spinoza only a cura posterior. 19 His
interest in the Holy Scriptures was not genuine but mainly strategie and
primarily for defensive purposes. In other words, the main goal of the
Treatise is Iess to suggest a new method than to destroy the scholastic

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

2003] DIVORCING POWER AND REASON 613

regime of authorities and the traditional pattern of thinlcing altogether.

IV. DIVORCING AUTHORITY AND REASON: SPINOZA V. MA!MONIDES

Right from the start, the Theologico-Political Treatise questions

the authority of the Bible. Speaking of scholastic theologians, Spinoza
writes in his preface:
The very vehemence of their admiration for the mysteries plainly
attests, that their belief in the Bible is a fonnal assent rather than a
living faith: and the fact is made still more apparent by their laying
down beforehand, as a foundation for the study and true
interpretation of Scripture, the principle that it is in every passage
true and divine. Such a doctrine should be reached only after strict
scrutiny and thorough comprehension of tbe Sacred Books ... , and
not to be set up on the thresbold, as it were, ofinquiry.2o
The statement that the Bible "is in every passage true and divine"
is the very core of the traditional concept of authority. To eall it into
question is not only sacrilegious, it also weakens the foundations of the
scholastic pattern of knowledge. Spinoza suggests a totally different
approach to the text, free from any prejudice regarding its divine origin
and the value of its teachings. According to him, the right method
should not confound the meaning of the text and its truth but, on the
contrary, make a clear distinction between them.21 The proper task of
the interpreter is to discover by aH relevant means the "true meaning" of
the text, without regard to the truth or falsity of its statements. This
principle may appear obvious to a modem reader and is indeed the
starting point of the modern theory of interpretation. However, it flatly
contradicts the system and the main techniques of traditional
hermeneutics, such as the expositio reverenter. In this famous
scholastie teehnique, the interpreter slightly eorrects the meaning of an
authentie text so as to lead it toward the truth, like a gardener
straightens up the curved trunk of a young tree with the he1p of a
support. For Spinoza, such methods are unscientific and lead to harmful
and misleading results.
In bis critique ofthe traditional method ofinterpretation, Spinoza's
main target is Maimonides. Maimonides was not, of course, a
scholastic hirnself, but his works, as weH as those of his Muslim
eontemporary, the great Averroes (Ibn Rushd), were weH known and
carefuHy read by Christi an scholars. Thomas of Aquinas, for instance,
had studied them and extensively discussed their merits in his own

20 SPINOZA, supra note S, at !O8.

21 See id al 101.
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614 CARDOZO LA W REVIEW [Vol. 25:2

books. 22 Both Averroes and Maimonides attempted to conciliate the

interpretation of Sacred Scriptures with the teachings of Aristotle's
philosophy. In his extremely elegant Decisive Treatise, Determining
the Nature of the Connection Between Religion and Philosophy,
Averroes tries to demonstrate the absence of any real contradiction
between the Koran and philosophical reasoning.
Now since this religion is true and surnmons to the study which leads
to knowledge of the Truth, we the Muslim cornmunity know
definitely that demonstrative study does not lead to [conclusions]
conflicting with what Scripture has given us; for truth does not
oppose truth but accords with it and bears witness to it. 23
When the literal meaning of Scripture apparently contradicts
AristotIe's doctrine, the interpreter will. make use of rhetorical
techniques of interpretation-similar to those used by lawyers-to
obtain a metaphorical meaning consistent with the teaching of reason.
Maimonides' own thesis is more cautious, especially regarding the
ultimate superiority ofreiigious mysteries. His More Nebukim seems to
have effectively influenced Thomas Aquinas' synthesis of religion and
philosophy, which eventually became-and partly remains-the official
doctrine of the Catholic Church. 24 Quoting the proverb "Like apples of
gold in settings of silver, so is a word skillfully spoken,"25 Maimonides
teaches that the Bible may be understood on two different and separate
levels. 26 Biblical verses have both an open meaning (the "settings of
silver") and a secret meaning (the "apples of gold"): the open or literal
meaning teIls a story or states a command that must be obeyed; the
secret meaning provides the interpreter with some valuable knowledge,
consistent with the teachings of philosophy, or alludes to a mystery,
which lies beyond the reach of natural reason. While the legal meaning
is for everyone to obey, the metaphysical one, which sometimes
contradicts the literal sense, is restricted to the happy few who are
leamed in both Talmudic and philosophical studies.
Spinoza dismisses Maimonides' theory as "harmful, useless and
absurd."27 He clearly opposed any attempt to conciliate religion and
philosophy. For him, each of these disciplines has its own domain and
its own methodology. It is a dangerous mi stake to mix them up by

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

2003] DIVORCING POWER AND REASON 615

trying to corroborate the free fmdings of natural reason with the

authority of divine revelation. According to the Treatise, "the Bible
must not be accommodated to reason, nor reason to the Bible. "28
Scripture does not teach philosophy-neither openly nor secretly-but
merely obedience. 29 The Sacred Books do not explain anything; they
command. They da not ask for understanding, but for compliance. The
proper sphere of theology is piety and obedience, while the sphere of
philosophy is truth and wisdom. 30 The investigation of Nature is the
province ofphilosophy, which uses mathematical reasoning (ratio more
geometrico) to understand the laws of the world. The investigation of
revelation is the province of theology, which uses interpretation to
discover the true meaning ofthe biblical commands.

V. A NEW METHOD FOR INTERPRETING TEXTS

Spinoza's "true method" ofinterpreting Scripture only requires the

help of natural reason. 31 This method "does not widely differ from the
method of interpreting nature-in fact, it is almost the same."32 As
Cassirer explained, the Theologico-Political Treatise entirely changes
the ontological status ofthe Bible. The revelation used to be the divine
key that allowed human beings to understand the world. Now, Spinoza
treats it as anather item of this world, whose very nature does not much
differ from the others and which should be examined almost in the same
way as deer, plants ar stones.33 This method, called "natural history,"
consists of a systematic collection, description, analysis and ordering of
the various species that could be found in Nature. 34 Similarly, Spinoza
wants to carry out an "historieal" examination of the Sacred text: to
collect and to confront the different versions of the Holy Books, to
understand each ward and each sentence according to the rules and uses
of Ancient Hebrew, and then to group biblical verses in several
categories, according to their topic, so as to fmd, on each subject, what

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).
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616 CARDOZO LAW REVIEW [Val. 25:2

Scripture actually teaches us, clearly and without any eontradiction. 35

Spinoza insists that the interpretation of Scripture should be based on
Scripture alone. 36 The philosopher does not hesitate to endorse the
Talmudic precept: one must interpret the Torah by the Torah itself,37
although his method has nothing in common with the subtle inter-
textual interpretive games perfonned by the Rabbis and pursues an
entirely different purpose.
The nature and efficacy ofnatural reason eonsists of"deducing and
proving the unknown from the known."38 So, the scientifie
interpretation of the Bible "proceeds by the examination of Scripture,
and infer[ s] the intention of its authors as a legitimate conclusion from
its fundamental principles."39 Biblical verses are like fossils. They bear
testimony to the fonner existence of prehistoric species, whieh have by
now entirely disappeared from the surface of the earth but have left
some "tracks" for natural historians to study. Similarly, Holy books are
signs pointing back to a remote period of the past. These signs are
evidence of the fact that same people wrote these books many centuries
ago in order to convey a message to some readers. Tbe main task ofthe
interpreter is to discover what these writers meant and intended to
communicate to their audience. This-and nothing else- is the "true
meaning" of the text, according to Spinoza and bis followers. 4o
According to Schleiennacher, for instanee, the fact that the Holy Books
were not sent miraculously from Heaven but transmitted through human
intennediaries is a compelling reason to relate therr meaning to the
actual intention oftherr authors. This is the only suitable method. 4 ! For
this reason, the internal eritique of the text has to be supplemented by an
extern al critique, which aims at relating the text to its actual author and
to the circumstances of its drafting and its publication.42 Such an
enquiry, as Spinoza states it, should include "the life, the conduct and
the studies of the author of each book, who he was, what was the
occasion, and the epoeh of his writing, whom he did write far, and in

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

2003] DIVORCING PO WER AND REASON 617

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

43 SPINOZA, supra note 5, at 103.

44 Id. at 120.
45 Although the same examination should be made for the New Testament, Spinoza declines
this undertaking for the reason that the task has already been perfonned by highly skilIed scholars
and that his own knowledge of tbe Greek language is not sufficient. See id. al 156.
46 ld. at 120-56. Hobbes performs a similar task in LEVIATHAN. See HOBBES, supra note 7,
at415.
47 SPINOZA, supra note 5, at 120.
48 Id at 129·30.
49 Id at 149·50.
50 Id at 103.
51 See id. at 108.
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618 CARDOZO LA W REVIEW [Vol. 25:2

also,"52 he does not aet as a Iawgiver but as a teaeher. Moreover, his

preeept applies only in times of oppression, but does not hold in a well-
ordered State, where everyone is entitled to demand penalties before the
judge in order to defend justice and his country's laws. 53 In other
words, the Bible is no longer a living souree of valuable knowledge,
guaranteed by divine authority, but a "dead letter" to which reason, the
greatest of gifts, should not be submitted. 54
Seeond, the Bible itself has now aequired a history of its OWll.
Scripture is not anymore the eternal word of God, but aseries of
fragments, subject to profound alterations over time. Aeeording to the
new method, the task of the interpreter is to go back in time, in order to
restore, if possible, the authentie version of the text. In the meantime,
the meaning of the word "authentie" has changed. "Authentie" no
longer means "true" but "original," i.e., actually written by the author to
whom it is attributed and never altered since. As a result, the admitted
authenticity of a text is no longer a guarantee of its truth. An authentie
text, in the modern sense, is not an unquestionable authority, but only a
testimony that must be examined without prejudiee. Moreover, the
antiquity of the text is no longer regarded as evidence of its superior
value. On the contrary, the reliability oftestimony decreases over time.
Ultimately, the Theologico-Political Treatise brings a complete
change to the theory of interpretation and more broadly to the logie of
seientifie knowledge as a whole. Tbe substitution of the modern notion
of "authorship" for the traditional eoncept of "authority" produces
major eonsequences. It completely modifies the status of texts, whieh
are no longer regarded as the necessary starting points and references
for any valuable knowledge, but only as past documents, mainly of
historical interest, which provide the contemporary reader with some
insight ab out the Ancients' outdated way of thinking. 55 Moreover,
Spinoza's method for interpreting the Bible would generate major
changes in the concept and the structure of law. The impact of these
changes on modem law could hardly be exaggerated.

VI. FROM THEOLOGY TO POLITICS

The effeet of trus new methodology of Biblical interpretation on

legal matters was inevitable. As Hobbes wrote in the Leviathan: "the
question of the Scripture, is the question of what is Law throughout a11

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

2003J DIVORCING POWER AND REASON 619

Christendome, both Naturall and Civill."56 Spinoza admits and even

stresses the normative character of divine revelation. Neverthe1ess, his
historical method of interpreting the sacred books reduces their
importance as sources of positive law to almost negligible. To begin
with, a large number ofbiblical commands are regarded as outdated and
no longer valid. Next, the rejection of every contradictory or obscure
statement drastically reduces the useful content of the Bible. According
to Spinoza, the teaching of revelation as a whole can be summed up in
one single normative statement: "to love God above all things, and
one's neighbour as one's self."57 This is indeed simple and
unambiguous, but neither too specific nor very useful to lawyers.
Finally, contrary to the scholastic system, the new method of
interpretation prevents theologians from creating new mandatory mIes
on the basis of the ancient text. Modem interpretation equates the true
meaning ofthe text with the original intent ofthe writer. Consequently,
it paralyzes the meaning at the time of the first publication and
considers any addition to be illegitimate. As a result, the Bible is
wholly paralyzed as an effective source ofIaw.
This is, of course, a deliberate acbievement. Spinoza, as weIl as
Hobbes, wanted to get rid of religious laws and religious powers
altogether. They both refused to separate sacred law from civil law and
to place the former under the contro! of the Church. 58 Like Hobbes,
Spinoza declares: "religion ... receives the force of a command solely
through the decrees of the holders of sovereign power."59
Consequently, "the holders of sovereign power are the depositaries and
interpreters of religious no less than of civil ordinances, and . . . they
alone have the right to decide what is just or unjust, pious or impiOUS."60
According to Hobbes, the power of the civil sovereign in religious
affairs is unlimited. He is the head of the Church in his own
dominion. 61 He may appoint pastors, who will officiate under bis
authority.62 He has the right to uphold or to forbid prophecies, to
approve or to disavow prophets, and even the right to prophesy himself.
Finally, he might go as far as to oblige his subjects to renounce GOd. 63
Spinoza has a different opinion. He believes that religious mIes, even
those held by civil hands, should confine themselves to the observance
of extern al rites, but that religious beliefs should escape any regulation
whatsoever. Hobbes considers religion a matter of public interest which

56 HOBBES,supra note 7, at415.

57 SPINOZA, supra note 5, at 172.
58 Id al251. According to the Treatise, such opinion is both friyolous and seditious. See id
59 Id al 248.
60 Preface [0 SPINOZA, supra note 5, at 10-11; see also HOBBES, supra note 7, al 426.
61 See HOBBES, supra note 7, al 575.
62 See id at 567.
63 See id at 527-29.
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620 CARDOZO LA W REVIEW [Vol. 25:2

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

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VII. THE NEW PARADIGM: POSITIVE LA W V. NATURAL LA W

The new method of interpretation espoused in the Treatise applies

not only to the Bible but to any legal text. Moreover, the separation
between authority and reason imposed by Spinoza's method can be
exported to the legal field. These represent both the very roots of
modem law and the eause ofmuch inconvenience.
God is the sovereign of the sovereigns and His will is the supreme
command. Consequently, "God should be obeyed before all else, when
we have a certain and oodisputable revelation of His wilI."72 As
Hobbes clearly puts it: "the question is not of obedience to God, but of
when and what God hath said."73 Now, Spinoza's careful examination
of Scripture has proven that it is impossible to discover God's will,
apart from the golden rule of loving God and one's neighbor. Scripture
collects the generally outdated, sometimes corrupted and often
contradictory statements of various human authors, who can be
regarded neither as valuable witnesses of God's will nor as legislators
far the present time. In a modem Commonwealth, the only legislator is
the actual sovereign power. The sovereign power has the exclusive
right to establish new statutes, as weIl as to endorse or to adapt old ones.
There is no law except the rights and mIes established by the
sovereign's authority.74
The "historical" method teaches us that the true meaning of a text
is synonymous with the real intent of its author. Regarding law in
particular, the true meaning of astatute is the sovereign's will. In other
words, astatute is the extemal sign of the sovereign' s will, and nothing
else. 75 He wha has the power to propound rules also has the authority to
interpret them. 76 Indeed, no one can state the authar' s will better tharr
the author himself. Such an interpretation is technically called
"authentie" (in the modem sense) since it refers the meaning directly to
the author of the text. The sovereign mayaiso delegate to sub ordinate
judges the power to apply and to interpret statutes. 77 When confronted
with a hard case, these judges will suspend the decision and ask the
sovereign for a more ample "authority."78 In any case, legal
interpretation can have no other legitimate purpose than to find out and
enforce the will of the sovereign.79

72 Id. at 211; sr!e also HaSSES, supra note 7, at 415.

73 HaSSES, supra note 7, at 415.
74 SPINOZA, supra note 5, at 206, 207; see also HQSSES, supra note 7, at 313 .
. 75 See HOSSES, supra note 7, at 312.
76 Sr!r! id at 321. Hobbes uses the French spe1ling "authentique." Id. at 321.
77 Id. at 323.
78 See id. at 326.
79 See id. at 321-22.
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622 CARDOZO LA W REVIEW [Vol. 25:2

As a result, legal interpretation, like biblical interpretation, should

not confuse authority and reason. The interpreter will not try to
accommodate the sovereign's commands to reason. Spinoza makes
perfectly clear that these commands must be fulfilled however absurd
they might appear to be. BO As for Hobbes, his attacks against the
scholastic method for interpreting statutes are similar to those addressed
by Spinoza regarding Maimonides. Hobbes mainly targets the Common
Lawyers and their champion at the time, Sir Edward eoke:
That Law can never be against Reason, our Lawyers are agreed ...
but the doubt is, ofwhose reason it is, that shall be received for Law.
It is not meant of any private Reason; for then there would be as
much contradictions in the Lawes, as there is in the Schooles; nor yet
(as Sr. Ed. Coke makes it) an Artificiall perjection 01 Reason, gotten
by long study, observation, and experience, (as bis was.) For it is
possible long study may increase, and confinn erroneous Sentences:
and where men build on false grounds, the more they build, the
greater is the ruine: and of those that study, and observe with equall
time, and diligence, the reasons and resolutions are, and must remain
discordant: and therefore it 15 not that Juris prudential, or wisedome
of sub ordinate Judges; but the Reason of tbis our Artificiall Man the
Common-wealth, and his Command, that maketh Law .... 81
The modem theory of interpretation fully discredits the traditional
jurisprudence as a method of interpreting statutes and developing legal
science. According to Hobbes, "it is not wisdom but authority that
makes a law." There is no reason involved in the study ofpositive law,
except the "reason of the strongest,"82 the King's reason, which me ans
nothing other than his arbitrary will. 83
As a result, the divorce pronounced by Spinoza between reason
and authority must be extended to legal matters. Modemity divides the
legal field into two separate provinces. On the one hand, positive law
means the commands of the sovereign, and one determines their true
meaning by accurately interpreting the sovereign's will, under the
sovereign authority and without any interference of speculative reason.
On the other hand, natural law abstractly deduces the system of legal
rules, more geometrico, on the sole basis of speculative reasoning,
without any reference to actual statutes. In this new landscape, the
words "natural law" do not primarily refer to the laws of nature. It is,
rather, a convenient abbreviation for "the law discovered by means of

80 See id. at 205.

81 See id. at 316-17.
82 "La raison du plus fort es! toujours la meilleure" ("The strong are always best at proving
!hey're right"). lean de la Fontaine, Le Lorlp el l'AgneIJu, in FABLES, (M. Fumaroli ed.,
Imprimerie Nationale 2d ed. 1985).
83 See the reference to the "King's reason" in THOMAS HOBBES, DlALOGUE BETWEEN A
PHll.OSOPHER AND A STUDENT OF THE COMMON LAws OF ENGLAND (Joseph Cropsey cd., Univ.
of Chicago Press 1971) (1681).
 Spinoza and Law 63

2003] DIVQRCING POWER AND REASON 623

natural reason alone."

According to the new paradigm, modem legal science does not
deal with specific texts and real cases. It becomes a branch of
philosophy, which speculates about what the law should be rather than
examines the established mIes and the ways of their enforcement. On
the other hand, jurisprudence (in its traditional meaning) is no longer a
science, but mainly a technique that aims to enforce the positive mIes
according to the will of the authorities, without any critical perspective
whatsoever.

VIII. THE FATE OF SPINOZA' S THEORY

At first, the dichotomy between authority and reason opened the

way for new kinds oflegal work directed at building the new science of
law. Among them, the systems of natural and rationallaw published
during the seventeenth and eighteenth centuries by legal scholars such
as Grotius,84 Pufendorf!5 and Vattel86 are especially characteristic ofthe
new paradigm. Later on, major treatises of legal philosophy, such as
Kant's87 and Fichte's,SB similarly attempted to deduce the principles of
any possible legal system from the concept of justice itself. However,
from the early nineteenth century, the concept of natural law was
generally disregarded and even ridiculed. Positive law progressively
became the only master of the legal field.
At about the same time, Lessing and the Romantics rehabilitated
and adapted Spinoza's theory of interpretation,89 which had been
heavily critieized,90 rejected, silenced and fmally forgotten for many
decades. The "historie al method" became the official doctrine of the
new fashionable science, Philology.91 Schleiermacher codified its
principles in his Hermeneutics. 92 Ironieally, theologians and lawyers
adopted this method, whieh had first threatened to subvert their

84 See HUGO GROTIUS, DE JURE BELLT AC PACIS (1625).

85 See SAMUEL FREIHERR VON PUFENDORF, OE JURE NATURAE ET GENTIUM (1672).
86 See EMER OE VATTEL, LE DROIT DES GENS OU PRINCIPES DE LA LOI NATURELLE (1775).
87 IMMANUELKANT, DIE METAPHYSIK DER SITIEN (1797).
88 JOHANN GOTTLIEB FICHTE, GRUNDLAGE DES NATURRECHTS NACH PRINZIPIEN DER
WISSENSCHAFTSLEHRE (Felix Meiner, ed., 1960) (1796).
89 CASSIRER, supra note 6, at 200-01.
90 Bayle, for instance, states that, "mieux vaut rejeter le temoignage de [a critique et de la
grammaire que celui de la raison," and that, "taut sens litteral qui contient l'obligation de faire
des crimes es! faux." PIERRE BAYLE, COMMENTAIRE PHILOSOPHlQUE SUR CES PAROLES DE
L'Ev ANGlLE: CONTRAINSLES D'ENTRER, qUOled by CASSIRER, supra note 6.
91 Benai! Frydman, Philologie et Exegese: Un Cas d'Hermeneulique Comparee, 33 REVUE
INTERDISCIPLINAIRE D'ETUDES JURIDIQUES 59, 59-83 (1994).
92 FRIEDRICH SCHLEIERMACHER, HERMENEUTIK. NACH DEN HANDSCHRIFTEN NEU
HERAUSGEGEBEN UND EINGELEITET VON HEINZ KlMMERLE (C. Winter ed., 2d ed. 1974).
64 Spinoza and Law

624 CARDOZO LA W REVIEW [Vol. 25:2

influence. Under the leadership of Savigny, the historical school oflaw

took control over legal thinking. It later extended its influence an over
Europe 93 and even to the United States of America. 94
The complete dissociation between authority and reason opened
the doors for the proliferation of legal positivism. It made it almost
impossible to criticize the accuracy and the fairness of the existing laws
on a legitimate scientific basis, giving carte blanche to the established
powers·. Governments, civil services and even judges were entitled to
decide, apply and interpret the mies according to their own discretion,
free from any control except from their superiors within the courts and
the State's bureaucracy. IronicaIly, the method designed by Spinoza to
prevent the old authorities from intruding into the area of science was
used to immunize the new authorities against the critical power of
reason.
Nonethe1ess, the legitimacy of such conception has cast serious
doubts. Since the horrors and the crimes of World War ll, new
generations of legal philosophers, ChaYm Perelman95 and Jürgen
Habermas9G among others, have tried to restore the critical power of
reason within the scope of positive law. They have sought samething
that would allow the distinction between genuine mIes and criminal
enterprises, such as the statutes of Nuremberg; something that would
prevent those statutes from being voted, implemented and interpreted
just like another genuine legal rule. However, this quest was difficult
because of the barrier erected between the province of critical reason
and the province of effective authority. It took a long time and many
controversies before scholars returned to an "interpretive paradigm" of
law and committed themselves to a new theory of interpreting statutes
that combines the authority of texts and precedents with the critical
power ofrational principles. 97
Until now, the naturallaw / positive Iaw dichotomy has remained
the summa divisio of legal philosophy. This division still restrains the
progress of contemporary legal thought. In order to overcome this
problem, 1 would suggest a careful rereading ofthe Theologico-Political
Treatise. Such a reading would help to convey that the modern
distinction between natural law and positive law, induced by Spinoza's

93 See Frydman, supra note 9l.

94 Francis Lieber adapted the principle of the historical and philologie al method to the
Common Law and the Amcrican political aod legal culture. FRANCorS LIEBER, LEGAL AND
POLlTICAL HERMENETlCS OR PRlNCIPLES OF INrERPRETAnON AND CONSTRUCTlON IN LAW AND
POLlTICS (William G. Hammond cd., 3d ed. 1880).
95 See CHAIM PERELMAN, LOGlQUE JURlDlQUE (2d ed. 1979); CHAIM PERLMAN, ErmQUE Er
DROIT 21 (1990).
96 For a comprehensive synthesis of Habcnnas' legal philosophy, see JURGEN HABERMAS,
BETWEEN FACTS AND NORMS (William Rehg trans., 1996) (need date of original publication).
97 See, e.g., RONALD DWORKIN, LAW'S EMPIRE (1986); RONALD DWORKIN, A MATTER OF
PRlNCIPLE (1985); RONALD DWORKlN, TAKING RIGHTS SERIOUSLY(1978).
 Spinoza and Law 65

2003] DIVORCING POWER AND REASON 625

divorce of authority and reason, was never meant to be an ontological

one. In other words, it does not create two different kinds of law. As I
have shown in this paper, tbis distinction mainly served strategie and
defensive purposes. It was set up as a brilliant way to counter the
influence of the scholastics and to create a sanctuary for tbe sake of the
new science's development. 1t was a methodological tool and somehow
a trick, designed by a genius, in a hlghly specific context, to be used for
a limited period in history. At least, this is the conclusion we would
reach ifwe applied Spinoza's method ofinterpretation to bis own work.
 Part 11
Natural Law
 [5]
Spinoza's Treatment 0/ Natural Law
ERROL E. HARRIS

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

64
 Spinoza and Law 71

to Rousseau. And the necessity to devise a means and an instrument of transi-

tion from one to the other resulted in the conception of the Original Contract.
This Contract was the product of reason: allegedly of the reasoning of the people
who entered into it, but actually of the theorists seeking to penetrate to the pre-
suppositions of social order.
The difficulty thus presenting itself of deriving moral and legal norms from nat-
urallaws, in the modern sense of that phrase, is in principle the same as that to
which Hume later pointed when he objected to attempts to deduce an 'ought' from
an 'is'. And the device of a contract hardly serves to solve it, for unless there is
a prior obligation to keep promises, no contract would be binding; and if 'ought'
may not be derived from 'is', the obligation to keep promises cannot be a natural
law in the required sense. Such an obligation, however, may well be a dictate of
reason. The problem then is to decide upon the status of reason in the scheme of
nature.
This problem did not arise for Thomas Aquinas, for he regarded what we should
nowadays call the laws of nature as the eternallaw of God, or divine Providence.
This is the eternal reason to which all things are subject. But human reason, in
particular, participates especially in divine reason, because human beings are
themselves provident, both for themselves and for others.
Whence both eternal reason is imparted to the rational creature itself, so
that it has a natural inclination to the right action and goal (debitum actum
et finem): and such participation in eternal law in the rational creature is
called natural law ... 3
Francisco Suarez follows Aquinas in regarding reason as natural. He calls it 'ra-
tional nature' and maintains that it is the rule and measure of what is right and
wrong. 4 He regarded it also as an active capacity of judging what accords with
this standard, and especially in the latter sense called it the law of nature. 5
The seventeenth century dichotomy between matter and mind, however, and the
divorce of Thought from Extension by Descartes as separate substances, made
this identification at least of human reason with the scientific laws of the physical
world less plausible. Consequently, we find the postulation of astate of nature in
which mankind originally found itself, and the device of a contract to account for
its present social and political condition, arising more or less concurrently with
the new scientific outlook. Yet, as we have seen, a contract will not solve the
problem unless human reason can in some way be reinserted into the world of na-
ture. If the world is a machine running blindly in accordance with the laws of me-
chanics and dynamics, and man, except so far as his physiological functioning can
be assimilated to the physico-chemical scheme, operates with consciousness, fore-
sight and intelligence. How, and in what sense, can the laws of reason and insight
be viewed as 'natural'? How are they to be related to the laws of mechanics (ex-
cept as characteristic of the genius of the scientist who discovers those laws)?
And how is the 'natural' state of mankind dominated by appetites and passions to
harbour a rational capacity and to submit to its regulation? What is req uired is a
solution of the problem of mind-body relation, as well as an account of reason and
of law, consistent with a natural explanation of human passion and appetite in con-
formity with the laws of physics.

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

65
72 Spinoza and Law

derive sociality from a natural state of mankind that is purely hypothetical.

Hobbes is more circumspect and sets out to deduce the social condition from natu-
ral human propensities, but he faithfu11y adopts the world-view of his time and
regards human beings as physical bodies obeying mechanical laws, even in the
enjoyment of consciousness. For sensation, he says, is but the impact of the mo-
tion of bodies upon our physical senses and 'motion produceth nothing but motion'
even ifits (unexplained) 'appearance to us is fancy'.6 Reason, in consequence,
becomes no more than calculation - a mechanical adding and subtracting of the
consequences of names, 7 and how this can produce sociability and morals never
satisfactorily emerges, for when Hobbes turns to reason as what 'finds out'S the
laws of nature, it operates very differently from a calculating machine.
Spinoza, on the other hand, identifying God and Nature as the one and only
absolutely infinite substance, has no difficulty in regarding natural law as the
eternallaw of God. Further, God's attributes express, each in its own infinite
kind, the essence of God; and the modes (both infinite and finite) in which they
manifest themselves, are a11 identical in substance. One of these attributes is
Thought, the first infinite mode of which is the divine inte11ect under which a11
finite modes are adeq uate ideas; and the order and connexion of ideas is the
same as the order and connexion of things - the same order and connexion in
a11 attributes. The eternal law of God, therefore, which is naturallaw, is equa11y
the law of reason, which is nothing other than the debitus ordo of adequate
ideas.
In this identification of God's eternal law, the law of nature in the world at
large, and the law of reason, Spinoza is in quite elose agreement with Aquinas,
at a11 events in effect, although St Thomas uses different language and does
not work out the connexion between God 's essence, the extended world in space
and time, and the rational intellect with quite the same rigour and systematic
coherence.
According to Spinoza, the essence of substance is an infinite, dynamic cre--
ative power, expressed in infinite attributes, each of which is one of the powers
of God. It is not a static structure, but a perpetually active creative ur ge ; and
as it exerts itself in every one of the attributes through its infinitely varied
series of modes, each mode has, as its essence, a conatus in suo esse persever-
andi, which is at the same time the power of God (or substance) working
through, or immanent in, it. Here again we have an echo of the doctrine of
Aquinas, who writes in Summa Theologica (Prima Secundae, Q.XCIV, A.2):
' ... every substance seeks the preservation of its own being, according to its
nature'. The conatus is the driving force which, in human beings, gives rise
to appetite and desire , so that the law of human nature is of a piece with the
general law of nature, as we should expect.
Human nature, however, is a complex concept and involves (as, it would seem,
must every other finite nature in Spinoza's system) at least two attributes. For
of every mode (in every attribute) there is an idea in the divine intellect under
the attribute or Thought; and the idea of that mode of Extension which is the
human body is the human mind. Human nature may, or rather must, be consid-
ered under two aspects, that of thought and of extension. But the idea is iden-
tical in substance with its ideatum and they together constitute one thing (res).
So whatever is true of the body will be reflected by a corresponding truth
about its idea or mind, and vice versa. Further the human body is a finite
mode of extension and so is acted upon by other finite bodies which cause con-
tingent effects in it. These are reeorded in idea, in its mind, as affeets, and
so far as the causes are external these are passions . The conatus produees
reaetions to such influences in the endeavour to preserve the self, whieh take
the form of appetites and desires accompanied by appropriate emotions. But the
conatus is the endeavour of the thing (res) - in this ease the human self - to

66
 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

67
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

Our consciousness, therefore, Hobbes asserts to be 'nothing but motion'. and

though its 'appearance to us is Fancy', no explanation is given of the precise
relation of 'fancy' to motion, nor is any explanation forthcoming of how such
'appearance' is possible, or to what it could appear. The external motion which
'presseth our organs diversely' is continued within us as sensation, and that
as it decays becomes imagination. 'Imagination therefore is nothing but decaying
sense'. Internal motions, reacting to these, constitute 'Endeavour', which is-
sues in 'Voluntary Motions' , one kind of which is speech. This consists in
naming, and the tracing out, or adding and subtracting, of the consequences
of names is Reason. 13
It is hardly possible, consistently in such a theory, to derive by reason, or
in any other way, normative precepts obligatory for human conduct, from what
is but motion and pertains solely to corporeal beings. Yet when Hobbes turns
to speak of naturallaw, he defines it as 'a Precept, or general Rule, found out
by Reason, by which a man is forbidden to do, that, which is destructive of
his life, or taketh away the means of preserving the same'. 14 This is the first
law of nature set down by Hobbes, and the third, which is fundamental to his
political theory, is 'That men perform their Covenants made'lS - an obviously
prescriptive precept.
In such a doctrine the inconsistency is manifest, and Hume's accusation
against deriving the 'ought' from the 'is' applies. Hobbes himself is partly aware
of this, for he reduces ultimately all obligation to forcible compulsion, either
actual or threatened.
Covenants, being but words, and breath, have no force to oblige, con-
tain, constrain, or protect any man, but what it has from the publique
Sword ... 16
But no such compulsion can have moral validity, nobody acting under sheer
compulsion is rightly held responsible, and m natural law, which is merely a
law of fear (as a mechanistic aversion) imposes either a moral or a legal obliga-
tion.
Spinoza avoids this inconsistency by offering a more profound theory of body-
mind relation and a more coherent account of the power of reason. For hirn, it
is only under the attribute of Extension that materialism in any form prevails,
and even there it is mitigated by his account of complex bodies as what we
should call organic. Minds are not bodies but are ideas, albeit the ideas of
bodies which are their ideata; and Spinoza's universe is not restricted (like
Hobbes') to the corporeal. The more complex bodies (like the human bodies) in
Spinoza's world are integrated wholes (as is the world itself - facies totius Uni-
vers i) in which the principle of integration determines the nature and relation
of the components. And the minds of these bodies reflect their integrated and
self-dependent versatility in idea. Their power of action, therefore, where it
develops, can, at least in some measure, prevail over their passive subjection
to external causes; and reason, or adeq uate thinking, can prevail over the
passions and their distracting conflicts. The laws of reason, as we saw, are
just as natural as those of physics or of psychology, and when we speak of the
Law of Nature, therefore, we cover the dictates of reason as weIl as the regu-
larities of the physical world and the aberrations of human greed and aggression.
It is frequently held that, despite this consistency in Spinoza's doctrine, or
rather , because of it, aIl obligation is eliminated. 17 True it is that the sage acts
according to nature, as weIl as the passionate man misled by imaginatio. But the
rational person who sees his true advantage cannot but pursue it in rational
fashion. He does not choose freely to act, so it is aIleged, but (as Spinoza
quite explicitly dec1ares 18 ) does so necessarily. Much depends, however, on the
way in which we understand the terms 'freedom', 'necessity' and 'obligation'

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and how we conceive their interrelation . If one is thought to enjoy freedom of

choice, entirely undetermined, and is then obliged to do X rather than Y, in what
sense is one obliged? If by divine command, one's obedience must still be deter-
mined by so me motive such as reverence, if not by fe ar . But if so, choice is no
longer undetermined. If one is obliged by the req uirements of some higher good
for mankind , it can only be through desire for such good that one willingly com-
plies. Spinoza denies any undetermined 'free' human will, and also that God is a
supreme ruler who issues commands to be freely obeyed or disobeyed. But if
the knowledge and love of God, in his sense of those terms, is what is meant
by one's awareness of and reverence for the divine will, then, obedience is
nothing other than the free action (determined only by one 's own essence)
arising from the third kind of knowledge. As knowledge of this kind is the knowl-
edge of the true and supreme good for man, action in accordance with it is what
that good requires. What 'obliges' the rational man is his conatus, which obliges
an men and an things. That again is always the requirement of the supreme
good, for that alone is truly advantageous. In the toils of imagination and pas-
sion nobody can by nature live rationally and cannot be 'obliged' to do SO,19
except that the very conatus which inflames desire is the same which, in the
long run, impels us to the improvement of the understanding and raises our
consciousness to the level of reason and the amor intellectualis Dei.
It is thus as much Natural Law that obliges to virtuous action as determines
us, when we fail to understand clearly and distinctly, to give way to our pas-
sions and to vice. In showing this to be the case Spinoza does indeed derive
the 'ought' from the 'is', but he does so without committing any fallacy. There
is, moreover, no other way to derive an 'ought', for unless what is obligatory
is good, obligation is senseless; and the criterion of value must have its roots
in both the nature of the actual world and in the natural inclinations of man-
kind. These may be misleading and misled, but ean be satisfied adequately only
if rationally ordered; and rational order is the souree of obligation, and is the
indispensable condition of attaining the true object of all desire .

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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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.

1 Cf. Thomas Aquinas, Summa Theologiea, Prima Seundae, Q. XCI, A2.

2 Cf. ibidem. Q. I, A4, A6, A7; Q. 11, Q. IV, passim.
3 Loc. cit., Q. XCI, A2.
4 Cf. De Legibus, Book II, c. V, 2.
5 Ibidem, c. 3-6.
6 Cf. Leviathan I, Ch. I.
7 Ibidem, Ch. 5.
8 Cf. ibidem, Ch. 14.
9 Ethies 11, Lern, VII, S.
10 Summa Theologiea, Ia, lIae, Q. XCIV, A2.
11 Tractatus Politieus, Ch. 11, 5.
12 Leviathan, Ch. 46.
13 Cf. Leviathan, Pt I, Chs. I, 11, IV and VI.
14 Cf. ibidem, Ch. XIV.
15 Ibidem, Ch. XV.
16 Ibidem, Ch. XVllI.
17 Cf. Wernham A.G., Benediet de Spinoza, The PolWeal Works, p. 19.
18 Cf. Traetatus Theologieo-Politieus, note XXXIV.

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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)

This could hardly be said of naturallaw in Thomas, or even in Hobbes. In

this essay I seek to understand and evaluate the reasons for this boldness. 3
I shall defend three theses: (I) that what appears on the surface to be
the main argument for this rejection (the argument we find stated first in
80 Spinoza and Law

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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actions is his own "being and well-being." To that extent he remains an

egoist. But in some men the "passion of courage or magnanimity" is
sufficiently dominant that their conception of what is in their interest does
not permit certain forms of cruelty. Those of whom this is not true
Hobbes stigmatizes as weak.
Again, Hobbes can be surprisingly rigorous about contracts in the
state of nature. If I promise a robber who is threatening me that I will give
hirn areward if he gives me my freedom, and if in fact he gives me my
freedom, I am obliged to do what I promised. R Though covenants of
mutual trust may generally be invalid in the state of nature, Hobbes'
mature position seems to be that this is true because generally in the state
of nature, i.e., in the absence of apower capable of compelling both
parties, there is a reasonable suspicion of nonperformance by the other
party.9 But if, for whatever reason, I enter into such a covenant and the
other party removes all my fear by performing what he has promised, then
I am bound by my promise. This is a rigor Spinoza explicitly rejects in
the TTP:
Suppose a robber forces me to promise hirn that I will give
hirn rny goods when he wishes. Since, as I have already
shown, rny natural right is deterrnined only by rny power, it is
certain that if I can free myself frorn this robber by decep-
tively promising hirn whatever he wishes, I arn permitted to
do this by natural right, to contract deceptively for whatever
he wishes. (xvi, 17; III/192/1O-16)

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

So even in a non-coercive situation, if I make a foolish promise and come

to recognize its foolishness, I am not bound by it (TTP xvi, 18). With
respect to promises, Spinoza, unlike Hobbes, adopts for people in general
the lack of moral constraint Machiavelli is usually thought to recommend
only for princes. 11
But does Hobbes not hold, with Spinoza, that might makes right?
Certainly some people have said so, and with reason. But the textual situ-
ation is complex and others have challenged this reading of Hobbes."
Hobbes does say, in The Elements of Law, that in the state of nature "irre-
sistible might ... is right" (I, xiv, 13, my emphasis). One question we
face is just what that qualification signifies. In the context Hobbes seems
to think of irresistible power as something one man might possess over
another:

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A man therefore that hath another man in his power to rule or

govern, to do good to, or harrn, hath right, by the advantage of
his present power, to take caution at his pleasure, for his secu-
rity against that other in the time to come.

Hobbes does, of course, postulate a rough equality of power between

"men of mature age" (I, xiv, 2); the inequality he envisages here would
seem to stern either from the infancy or from the temporary indisposition
of one of the parties. The corresponding passage in DC (i, 14) argues that,
just as a man in health may compel one who is sick or one "of riper years"
may compel a child, so "the conqueror may by right compel the con-
quered." A later passage in DC pushes the analogy still further, using the
fact that any irresistible power confers a right of dominion to explain
God's sovereign right over men:
if any man had so far exceeded the rest in power that all of
them with joined forces could not have resisted him, there had
been no cause why he should part with that right which nature
had given him. The right therefore of Dominion over all the
rest would have remained with him, by reason of that excess
of power whereby he could have preserved both himself and
them. They therefore whose power cannot be resisted, and by
consequence, God Almighty, derives his right of sovereignty
from the power itself. (xv, 5)

It is not, as Hobbes says in Leviathan (xxxi, 5, 397), because God is our

creator, or gracious to us, that we are obliged to obey hirn, but because he
is omnipotent.
Nevertheless, Hobbes' final word on this subject seems to be that talk
of an irresistible human power is purely hypothetical, since apower
which is strictly irresistible is found only in God. So only God can be the
beneficiary of the equation of irresistible rnight with right. This is clearest
in "Of Liberty and Necessity":
Power irresistible justijies all actions, really and properly, in
whomsoever it be found; less power does not, and because
such power is in God only, he must needs be just in all
actions, and we, that not comprehending his counsels, call hirn
to the bar, commit injustice in it. (English Works IV, 250)

The corresponding passage in Leviathan is not so explicit in limiting the

doctrine that might makes right to God, though the general tenor of the
passage is otherwise similar. 13
In line with this restriction, Hobbes writes in De cive that if, in a
democracy or aristocracy,
some one citizen should, by force, possess himself of the
Supreme Power, if he gain the consent of all the citizens,
he becomes a legitimate monarch; ifnot, he is an enemy, not a
tyrant. 14

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This will be consistent with the teaching of OC i, 14, provided we insist

that the power of such a citizen either can never be "sure and irresistible"
or can be sure and irresistible only if the citizen has won the consent of all
other citizens. But I cannot see how it will be consistent with the claim of
Leviathan that there is "a mutual relation between protection and obedi-
ence" (Rev & Conc 17,728), i.e., that subjects are obliged to obey (and
hence that the sovereign has a right to command obedience) just so long
as the sovereign has sufficient power to protect his subjects (xxi, 21, 272).
This latter doctrine seems to base the sovereign' s right on something
rather less than sure and irresistible power, and to make the consent of all
the citizens irrelevant.
The passages we have been looking at do not fit into any simple chro-
nological pattern. I conclude, then, that Hobbes does not so much change
his position as he does vacillate on the issues discussed here: the existence
of obligations in the state of nature and the relationship between right and
power. I find no vacillation on these points in Spinoza, though his position
is not without its ambiguities.
Our subject now is Spinoza's bolder position and the reasons for it.
Let' s note first an interesting absence: there seems to be no sign in
Spinoza of the following, presumptively Hobbesian, argument:
1. In war any action against the enemy is permissible.
2. The state of nature is a war of every person against every other per-
son.
3. Therefore, in the state of nature any action against any other person
is permissible.
I call this a "presumptively Hobbesian" argument, since it certainly seems
to be the argument of Lxiii, 13, however much the preceding section of
this paper may have raised doubts about Hobbes' commitment to the first
premise and the conclusion.!5 Perhaps the reason for this absence is that
Spinoza would not accept the second premise of the Hobbesian argu-
ment.!6 He does, of course, think that life in the state of nature would be 17
quite wretched, and that one of its undesirable features is lack of security.
But his emphasis is rather on economic disadvantages:
A social order is very useful, and even most necessary, not
only to live securely from enemies, but also to spare oneself
many things. For if men were not willing to give mutual assis-
tance to one another, they would lack both skill and time to
support and preserve themselves as far as possible. Not all
men are equally capable of all things, nor would each one be
able to provide those things which, alone, he most needs.
Everyone, I say, would lack both powers and time, if he alone
had to plow, to sow, to reap, to grind, to cook, to weave, to
sew, and to do the many other things which support life, not to

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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

2. The power of nature (considered absolutely)1 8 is the power of God.

These two premises lead to the intermediate concIusion that

3. Nature, considered absolutely, has the right to do whatever it can

do.
To get from his intermediate concIusion to the final concIusion about what
individuals in nature have the right to do, we need a further premise:

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

5. Everything in nature has a right to do whatever it can do.

For Spinoza what a thing can do is equivalent to what its nature deter-
mines it to do.
What are we to say about this argument? We might approach this
question by asking why Spinoza would expect his seventeenth-century
audience to accept it. That, in effect, is the tack Alexandre Matheron
takes, in the best explanation of this text I am aware of. 19 Matheron begins
boldly, contending that Spinoza justi fies his conception of right
by a reasoning which, like all reasoning, must necessarily rest
on premises known through themselves, which implies that he
has at the beginning a certain idea of right, evident to hirn as it
is to his readers, and that it is in making explicit (he content of
this "given true idea,,20 and in reftecting on it that he arrives at
the desired conclusion. (p. 81) .

I think this does capture Spinoza' s conception of what he is doing, and of

what, if not all reasoning, at least all demonstrative reasoning must do.
Matheron compares the situation in the TTP with that in the Ethics, where
Spinoza begins with adefinition of God which he takes to be known
through itself, viz., that God is an absolutely infinite being, and proceeds
to derive from that definition the identification of God with nature . I
believe the comparison is apt.
But what this talk of a given true idea, known through itself, amounts
to is an idea accepted in the intellectual tradition of his time: in the case of
right, an idea of right shared by Grotius and Hobbes and the learned
jurists to whom the TTP is addressed. That seems fair enough to me. Any
argument must proceed from some assumptions which, in that argument
at least, are not themselves argued for. Unless we place overweening
confidence in a supposedly infallible faculty of intuition, the natural and
best place to start is with assumptions which would also be made by those
whom we judge to be the most impressive thinkers of our time on the

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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)

It is helpful, 1 think, to be reminded that God's sovereignty over his cre-

ation was a point of agreement in the juristic tradition Spinoza inherited.
That Grotius assumes God's sovereignty appears, e.g., in the following
passage:
So if God should command that anyone be slain, or that the
property of anyone be carried off, murder or theft-words
connoting moral wrong-will not become permissible; it will
not be a ca se of murder or theft, because the deed is done by
the authority of the Supreme Lord of life and property."

It is no accident that Grotius takes an assumption equivalent to the

sovereignty of God 23 as axiomatic in the proto-geometric argument of De
jure praedae. And we've seen Hobbes maintain the doctrine of God's
sovereignty, though he does not seem always to regard it as axiomatic, but
rather the conclusion of an argument, and though he may vacillate in the
way he holds it, sometimes arguing in a manner which reverses the direc-
tion of Spinoza's argument,24 sometimes insisting that any power less than
omnipotence does not confer rights of dominion.
It's intriguing also to think that the spinozistic metaphysic might pro-
vide a beUer solution to a Grotian puzzle than Grotius himself had. If God
is the sovereign lord of our lives and of all finite things, we might ask,
how can we have any rights in anything? Grotius' answer was that God
gave them to us in the donation of Genesis 1:26-30. 25 Spinoza's way of
moving from God's absolute right to the rights of his creatures avoids
reliance on scripture and it also obviates a problem Grotius' appeal to

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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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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)

We might summarize this new part of the argument as follows:

(a) No definition of any finite thing in nature entails the existence of
that thing.
(b) Therefore, the conti nuance of any finite thing in existence requires
explanation just as much as the beginning of its existence does.
(c) No other finite thing can provide the required explanation, since it
too requires an explanation both for its beginning to exist and its
continuing to exist.
(d) What explains the fact that finite things begin to exist, and continue
to ex ist, and hence, the fact that they are able to produce effects,
can only be the power of God.
(e) Therefore, the power of natural things is the power of God.
Point (a) is certainly not problematic. The inference to (b) may be prob-
lematic, insofar as many philosophers (e.g., Locke) have been disposed to
think that the beginning of a thing's existence requires explanation in a
way that its conti nuance in existence does not. But Cartesians, I think,
will accept all of (b)_(d),28 though they may still wish to resist the conclu-
sion Spinoza draws.
In any case, given (e), the argument can now pretty much follow the
hnes of the TTP:
From this fact-that the power of natural things , by
which they exist and produce effects , is the very power of
God-we easily understand what the right of nature iso For
since God has the right over all things, and God's right is
nothing other than his power itself, insofar as this power is
considered to be absolutely free, it follows that each natural
thing by nature has as much right as it has power to exist and
produce effects, since the power of each natural thing is noth-
ing other than the very power of God, which is absolutely
free . (TP ii, 3, III/276/27-277/2)

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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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

Grotius' project is to develop a theory of naturallaw which will make that

law intelligible independently of the will, or even the existence, of God,
not because he thinks God does not exist, but because he thinks God's
claim on our obedience is based not merely on his power, but also on his
goodness. And if he is to say, nonvacuously, of God that God is good,
then there must be a standard of goodness which is independent of God.
That is why he holds that even God cannot change the law of nature:
Measureless as is the power of God, nevertheless it can be
said that there are certain things over which that power does
not extend; for things of which this is said are spoken only,
having no sense corresponding with reality and being mutually
contradictory. lust as even God, then, cannot cause that two
times two should not make four, so He cannot cause that that
which is intrinsically evil be not evil. (DJBP I, i, 10,5,40)

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).

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90 Spinoza and Law

And when we think about this divergence within the tradition

Spinoza is working from, we see that there is something more than a little
odd about Spinoza's starting, in each version of this argument, from the
assumption of God's sovereignty over his creation. The very use of this
concept seems to presuppose a personal conception of God which Spinoza
explicitly disavows in the TTP, a conception of God as the King of Kings.
If "it is only because of the multitude's power of understanding and a
defect in their thinking that God is described as a lawgiver or prince, and
called just, merciful, etc." (TTP iv, 37, III/65/28-30), what sense is there
in describing hirn as having the supreme right over all things?

•••
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)

He explains immediately that this definition embraces two kinds of law:

either (I) the fact that the things act in the same way follows from the nature
or definition of the thing; or (2) it follows from adecision taken by men.
We might suppose that it is only laws of the second kind which allow
exceptions. If a way of acting follows from the definition of the thing, all
the members of the species must act in that way. Spinoza gives as an
example the law of physics, according to which
every body, when it encounters another smaller body, loses as
much of its motion as it communicates to the other body. (iv, 2)

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.)

insofar as it depends on a human decision (or rather, a number of human

decisions), may not be universally true. It may happen that so me men do
not make this decision. In this case, only some members of the species act
in one and the same way.
In any case, this definition of law is only provisional. It is a very
broad definition, which encompasses both scientific laws, which describe

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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)

We naturally think here of Hobbes:

Law in general is not counsel, but command; nor a command of
any man to any man, but only of hirn, whose command is
addressed to one formerly obliged to obey hirn. (L xxvi, 2,312)

Although Spinoza recognizes that a definition like this is common, ne ver-

theless, he does not accept it, preferring to define law as
a rule of life which a man imposes on hirnself or on others for
some end. (TIP iv, 5; III/58/33-35)

There are several interesting differences here between Spinoza and

Hobbes.
First, Hobbes presupposes a situation in which a person (perhaps
God, perhaps a man) addresses a commandment to another (a man, in this
case), previously obliged to obey hirn. Perhaps it is only by prudence that
Hobbes admits the possibility that law is a commandment of God. When
he says that it is improper to call the laws of nature laws (for they are
rather "theorems concerning what conduces to the conservation and
defense ofthemselves"-L xv, 41, 217), he is careful to add that
if we consider the same theorems as delivered in the word of
God, who by right commandeth all things, then are they prop-
erly called laws.

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

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true end of laws. For them it is necessary for a legislator to establish

rewards and punishments. If we think only of this case, it will seem nor-
mal to us to conceive law as a command one person imposes on others,
and to think of the person subjected to law as a slave. But that would be
too restrictive adefinition. We can impose a law on ourselves. Moreover,
Spinoza does not insist that the man to whom the rule of living is
addressed is previously obliged to obey the man who imposes that rule.
As a result, his definition is more c1early positivistic than that of Hobbes.
Nevertheless, the most significant difference is that for Spinoza it is
always man who imposes this law, not God. Although he speaks of a
divine law, that law is divine, not in virtue of its source, but in virtue of its
end. The divine law is a law which has as its object the true knowledge
and love of God (TTP iv, 9; III/59/25-28). Human law is law which has
for its end the security of li fe and the state.
Spinoza does not immediately offer any argument for this bold
restriction. But a bit later on in the chapter on divine law (§§ 23-37) we
do find an argument which has as its conc1usion that it is only by a defect
in our knowledge that we can conceive God as a legislator or a prince pre-
scribing laws to men. Spinoza thinks we can easily deduce this conc1usion
from the nature of the divine will. The first premise is that
(1) God's will and his intellect are really one and the same thing, and
are distinguished only in relation to the thoughts we form of the
divine intellect (iv, 23; III/62/30-32).
From this premise, according to Spinoza, it follows that
(2) the affirmations and negations of God always involve a necessity,
i.e., they are eternal truths. (iv, 25; III/63/l0-l2).
From this second stage of the deduction, it follows that
(3) if God has really forbidden an act of a certain kind, it would
be impossible for a man to break this commandment (iv, 26;
III/63/12-15).
But,
(4) a law is a rule of living which the man to whom the law is
addressed can either carry out or disregard, as it seems good to
hirn, taking into account the possible consequences of obedience or
disobedience.
Perhaps Spinoza does not state this assumption explicitly, but I find it to
be suggested by his remark about Adam, who ate the fruit of the tree of
the knowledge of good and evil: Adam must have perceived God's revela-
tion, not as an eternal and necessary truth, but as a law,

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 Spinoza and Law 93

i.e., as a rule establishing that a certain profit or loss will be

the consequence of a certain action, not from the necessity and
nature of the act performed, but from the good pleasure and
absolute commandment of a prince. (iv, 27: III/63/23-25)

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

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as laws, imposing on us an obligation which would limit our natural rights

(Cf. Lxvi, 41, 216-17).
How does the argument stand then? Adefender of traditional natural
law might reject the assumption that in God will and intellect are one and
the same thing. This seems to me to be the premise most likely to be con-
troversial. Elsewhere 35 I have suggested that Maimonides, Ockham, and
Descartes make the assumption Spinoza requires, and that St. Thomas
does not. We might add that Spinoza himself seems not accept this
assumption, since he denies, in the Ethics (IP31), that intellect and will
pertain to natura naturans, i.e., (by IP29S), to God. How, then, can we
defend his use of it?
We might consider the argument which depends on the assumption of
the identity of will and intellect in God as an argumentum ad hominem, in
the sense that it depends on an assumption which Spinoza himself does
not accept, but which he believes that his opponent would accept. But this
seems an unsatisfactory result, if we take it that Spinoza intends, in this
argument, to appeal only to propositions which are known through them-
selves, and hence, common ground between him and his opponents. The
argument would have a defect exactly opposite to that of the argument in
TTP xvi: instead of depending on assumptions Spinoza accepts and his
opponents don't, it would depend on assumptions his opponents (perhaps)
accept and he doesn't. This would leave it quite mysterious what
Spinoza's own reasons for accepting this conclusion might be.
Perhaps the solution to this difficulty is to regard the argument as a
kind of reductio ad absurdum of the position of Spinoza's opponents: if
we think there is a naturallaw which restricts what we can legitimately do
(i.e., which imposes on us obligations, say, not to do something we can
do), we must think of that law as a divine command, where God is con-
ceived as a personal being, possessing an intellect and a will; if we
conceive of God as possessing an intellect and a will, we must conceive
of his will as being identical with his intellect; the argument can then pro-
ceed as before, culminating in the conclusion that the concept of such a
law is incoherent.
But suppose we dO,in this way (on the analogy of E IPI7S,
1I/62/30ff), treat the ascription of will and intellect to God as merely
hypothetical. Why, if we ascribe will and intellect to God, must we con-
ceive them as identical? In his geometric exposition of Descartes'
"Principles of Philosophy" (IPI7C) Spinoza derives the identity of the
divine will and intellect from God's simplicity, and this is no doubt good
Cartesian doctrine (cf. Descartes' Letter of Mersenne of 27 May 1630).
But why should Descartes think that the identity of will and intellect
follows from God's simplicity? After all, Descartes also thinks the human
soul is a simple substance, but he doesn't think the human will and

112
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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

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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

This paper is an expanded version of a paper presented at the Spinoza conference in

Almagro, Spain, in October 1990, which is to appear in French in the proceedings of
that conference. I am much indebted to the participants in that conference for their
comments on the original version of the paper.
I. Cf., for example, the Theological-Political Treatise (TTP) xvi, 7, IIIIl90/13-14, and
the note attached to TTP xvi, 16, IIII263/12-17. leite the TTP by chapter and Bruder
section number, followed by the volume, page, and li ne numbers in the Gebhardt edi-
tion. Similarly for the Political Treatise (TP), though in that case the seetion numbers
are Spinoza' s own.
2. See, for instance, Errol Harris, "Spinoza's Treatment of Natural Law," Spinoza's
Political and Theological Thought, ed. C. de Deugd (Amsterdam: North-Holland,
1984) 66.
3. I allude here to the famous remark Hobbes is supposed to have made after he had read
the TTP. I have discussed that remark in detail in "'I Durst Not Write So Boldly':or,
How to Read Hobbes' Theologieal-Political Treatise." fortheoming in Hobbes e
Spinoza, ed. Emilia Giancotti (Napies: Bibliopolis. ???) In that article I focus on the
similarities and differences between Hobbes and Spinoza on such theologie al issues as
miracles, prophecy, and the authority of Scripture. But one conclusion we might draw
from the present article is that Hobbes may have had in mind boldness in his treatment
of natural law. Rober! McShea (The Political Philosophy 01 Spinoza [New York:
Columbia UP, 1968]) thinks there is "hardly any doubt" that Hobbes is referring to
Spinoza's views on religion (154), though he also argues that in political theory
"Spinoza was a more eonsistent Hobbist than Hobbes" (138).
4. E.g., in DC i, 12, or Leviathan xiii, 8, 185. Referenees to Leviathan (abbr. L) are first to
the ehapter and paragraph number, then to the page number in the Macpherson edition
(New York: Penguin, 1968). References to De cive (abbr. DC) will be to chapter and sec-
tion; references to The Elements 01 Law (abbr. EL) will be to part, ehapter, and seetion.

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.

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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

(NapIes: Bibliopolis, 1985).

36. For the simplieity of the soul, see the Sixth Meditiation, AT VII, 86. For the distinetion
between intelleet and will in man, see the Third Meditation, AT VII, 56-61.
37. For a more detailed discussion of this topie , see my artic1e "Deseartes, Spinoza and the
Ethics of Belief," Spinoza, Essays in Interpretation, ed. E. Freeman and M.
Mandelbaum (Open Court, 1975). Spinoza's most extended treatment of the identity of
will and intellect in God oeeurs in the Metaphysical Thoughts II, vii-ix.
38. I think we ean let Thomas Aquinas represent the tradition. Cf. ST I, iv, I, on God's
perfeetion, and I, xxiii, 1, on his predestination of men.
39. Descartes, Principles I, 39-41.

117
 [7]
SPINOZA AS NATURAL LAWYER

Aaron Garrett*

By an odd historical coincidence, four of the major moral and

political philosophers of the second half of the seventeenth century-
Samuel Pufendorf, lohn Locke, Richard Cumberland, and Benedict
Spinoza-were alt born in 1632. Nearly ninety years later, when Daniel
Defoe opened Robinson Crusoe with a few biographical details about
his natural lawyer hero, he gave hirn a Dutch background and the
appropriate birth year of 1632. 1 Pufendorf and Cumberland were two of
the most important natural lawyers of the seventeenth century. lohn
Locke was also cIearIy deeply indebted to the natural law theory
developed by Grotius, and wrote a tract on the naturallaw when he was
young. But where does Spinoza fit into this picture?

I.

Spinoza clearly was aware of Grotius and the development of

Protestant natural law doctrines. He owned two of Grotius' most
important works, the De Imperio Summarum Potestatum Circa Sacra
(1647) and Defensio Fidei Catholicae (1617)2 and Spinoza wrote within
a Dutch Protestant context deeply informed by Grotius and Hobbes (as

* 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.
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628 CARDOZO LA W REVIEW [Vol. 25:2

weil as by Catholic natural lawyers like Suarez).3 Like Spinoza,

Pufendorf, Cumberland and Locke all read Grotius, and like Spinoza
they all struggled with Descartes and the new science. Furthermore,
they all attempted to respond to the challenges posed by Hobbes' De
Cive in a way that preserved some of Hobbes' most important insights
without giving way to his excesses. What each thinker thought to be the
most heinous excess was different, but they all wanted to avoid what
they feit led to an amoral authoritarianism in Hobbes.
At some point in their developments Pufendorf, Locke, and
Cumberland, like Spinoza, all thought that a compelling way to respond
to Hobbes was to turn Hobbes' deduetivist or geometrical presentation
of morality against hirn by showing that a rigorous moral theory leads
the moral philosopher to conclusions very different from those offered
by Hobbes. 4 Yet despite all of these affinities, Spinoza5 is markedly
different from the other authors I have listed. For example, Spinoza
was far more willing than the others to aceept the more radieal elements
in Hobbes, radicalize them further, and dispose of any elements of
Hobbes with a whiff of voluntarism or conventional theism. And
Spinoza's naturalism was far, far more thoroughgoing than any
seventeenth-century philosopher. 6 Why such a drastic difference? Part
ofthis divergence from the fold rests on the way that Spinoza conceived
of "natural law." I will develop this theory via an analysis of TTP IV
and some related passages from the Ethics. Spinoza's presentation of
the natural law develops Grotian and Hobbesian themes but in a
direction very different from his more voluntaristically minded cohorts.
Put simply, Spinoza wished to dispense entirely of the divine
positive law and argue that any human positive law derives its ultimate
authority from a very naturalized natural law. Consequently, any
recourse to divine positive law can be shown to either be nonsense, or
more effectively explained through purely naturalistic concepts. In this
way it might be argued that Spinoza is not only a natural lawyer, but a
remarkably consistent one. He is very different from the mainstream,

3 Spinoza's critic, Lambertus van Velthuysen, provides an instructive comparison. On the

conflicts between Spinoza and Van Velthuysen, see Hans W. Biom, Lambertus Van Velthusen el
le Naturalisme, in 6 CMnERS SPINOZA 203 (1991); Catherine Secretan, La YfJceptioTl de Hobbes
allx Pays-Bas QII XVlle siecle, in 3 STUDIA SPINOZANA 27 (M. Bcrtman et al. eds., 1987).
4 For Hobbes' advocacy of a geometrical presentation, see THOMAS HOBBES, ON THE
CITIZEN 4-5 (Richard Tuck el al. eds. & trans., Cambridge Univ. Press 1998) [hereinafter DE
CIVE). For Cumberland's advocacy of a deductivist geometrie response 10 Hobbes, see the
Introduction 10 De Legibus Na/Urae. Locke proposes his deductive science ofmorals in the Essay
Concerning Human Understanding. On Spinoza and the geometrical method, see generally
AARON V. GARRElT, MEANING IN SPINOZA 's METHOD (2003).
5 There are further important affinities with Grotius, in particular conceming some of
Spinoza's arguments for toleration, as will be discussed below.
6 Naturalism is used quite colloquially here, viewing human beings as just another part of
nature and as susceptible of study along the lines ofthe natural sciences.
 Spinoza and Law 103

2003] SPINOZA AS NATURAL LA WYER 629

although in a way which can be viewed as providing a response to and

development of issues in Grotius and Hobbes. And, broadly taken, part
of this response is to argue against one of the central categories of
naturallaw theory.
Before considering the specifics of Spinoza's position on the
naturallaw, I ought to clarify how I define a "naturallawyer." I do not
mean natural lawyers in general, but Protestant natural law theorists,
and more particularly, those authors writing in the wake of Grotius and
Hobbes-above all Samuel Pufendorf and Richard Cumberland-who
agreed to a few characteristic doctrines.1 There were of course many
Catholic natural law theorists, and I am making no pronouncements
about naturallaw theory by restricting my scope to Protestants. Rather,
I am interested in Grotius and Hobbes because their writings were so
important in Spinoza's Dutch context. 8 It is very difficult to define
"natural lawyer," even given this more restricted context, beyond a
moral or political philosopher who claims: (1) that human reason is
capable of discovering naturallaws; (2) that these natural laws are a
crucial key to, and backbone for moral and political success and
stability; (3) that they are in some sense (at least conceptually)
independent of the revealed law; and (4) and that they are made evident
through, or at least act as a guide to, natural sociability. All of these
themes can be found in Grotius, Locke, Cumberland, Velthuysen, and
Pufendorf. For exarnple:
Man, then, is an animal with an intense concern for his own
preservation, needy by himself, incapable of protection without the
help of his felIows ... in order to be safe it is necessary for hirn 10 be
social; that is to join forces with men like himself and so conduct
hirnself towards them that they ... becorne willing to preserve and
promote his advantages. . .. The laws of this sociality ... are called
natural laws. 9
None of this text is at odds with Spinoza's way of thinking about
naturallaw. There are two further restrictions that begin to get at what
is distinctive and different about Spinoza. First, the authors I have
mentioned all believed that sanction was an essential feature of the law,
and all believed that sanction had to be attached in some sense by a

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).
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630 CARDOZO LA W REVIEW [Vol. 25:2

superior. 10 This is not to say that their positions were irreducibly

theological in a non-philosophical way. As has often been pointed out,
one can read hundreds of pages of Grotius or Pufendorf or Hobbes or
Locke and not need recourse to their theism to warrant their arguments.
Rather, they primarily thought of laws (even naturallaws) in terms of
legislators, the individual wills of those entering contracts, the wills of
sovereigns and the will of God. The will of God may enter in as
ultimate justification, but subtly-for example, in Locke as the final
evaluator of moral persons, or in Pufendorf as the initial imposer of
moral entities and the human frame onto the material world. But the
cmcial point is that with the sanction or obligation comes same, or even
a11, of the "moralness" of a given rule. What makes it moral is also
what makes it obliging.

Il.

Grotius provides a partial exception to the voluntaristic emphasis

in the sanction theory because of a strongly realist element in his way of
thinking about the natural law. I associate realism with the following
claim, that for Grotius there are some crucial actions that are moral due
to moral qualities intrinsic to acts themselves-"morally necessary"-
and some actions are intrinsically forbidden-"morally impossible."
For instance, "it is necessary to worship God, or ... lying is forbidden
per se."11 In other words, the permissibility or impermissibility of these
actions is a crucial guarantor of the naturallaw, not because of a threat
of punishment or promise of reward but because of moral qualities
intrinsic to the acts themselves. For example:
If no law had mentioned punishment, yet, naturally, man's aet in
itself, either as intrinsically depraved owing to the unehangeable
nature of things, or as extrinsically depraved on account of the
eontrary precept of God, deserved on this aceount a punishment, and
to be sure, a severe one. 12
The discussion of "extrinsic depravity" in this passage points to a
contrasting basis for punishment. Actions gain moral force "from the
natuml authority of a superior: the head of a household has to adhere
what the burgomasters have commanded or forbidden, and the
burgomasters to what the governor has commanded or forbidden, and
the governor to what the supreme power has commanded or

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

2003] SPINOZA AS NATURAL LA WYER 631

forbidden."13 Both are in some sense natural law, the former

intrinsieally, and the latter derivatively. The latter may be eonsidered as
positive law as weil:
It is very weIl known that law is twofold, natural and positive. Every
debt must, therefore, arise either from the former or from the latter.
Natural law consists in adequation among things themselves,
therefore the debt is also natural. But positive law is that which
results from a free act ofwil1. 14
The positive law is fixed by human wills or God's will as opposed
to the regular or necessary laws of nature and the individual natures of
particular things-including uso It might seem then that there is apolar
differenee between the two sources to which we ascribe the force of the
law: a hierarchy of authorities going back to God or to intrinsic features
of particular aets. But this is not the ease, and in the two works of
Grotius that Spinoza read, the positive law and the natural law are
interconnccted to a remarkable dcgrcc. In De Imperio, Grotius was
attempting to argue for the authority of thc magistraey in extern al
religious matters as against religious authorities. Thus, there are
contextual reasons for drawing together these two principles ofthe law.
The emphasis though is elear-positive willers and legislators have
authority and consequently the capacity to attach punishments; insofar
as they have natural authority, they are fathers or burgomasters whose
natural, hierarchieal authority ought not be countermanded.
Furthermore, Grotius went to great Icngths in De Imperio and De
Satisfactione to distinguish bctwccn two types of sanctions: positive
punishments and natural sanctions or deserts. A natural desert comes
about through preexistent natural relations among objects, peoples, ete.,
whieh seeks a kind ofhomeostasis:
By nature, an act of yours does not, and in fact cannot, bring about a
debt to me other than equality according to the matter; in other words
as much as you have caused me to lack, so much should he
retumed . .. natural debt resulting from deIicts differs from
punishment. For the cause of the natural debt is not in the first
instance the moral wrongness of the act, but that I lack samething;
for even if it is lacking without any fault, as in the case of a deposit,
restitution is none the less due to me. But the cause ofpunishment is
the very moral wrongness of the act, not that anything is lacking to
me. 15
So, something loaned must be retumed, a crime may be punishcd
in a way commensurate with harm, ete. Naturallaw also teaches us not
to play with fire due to the natural sanctions attaehed to picking up an

13 ld.
14 DEFENSIO FIDEl, supra note 2, at 11, 9.
15 DE IMPERIO, supra note 2, at 1I, 9-10.
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632 CARDOZO LA W REVIEW [Vol. 25:2

ember, not to go against what the burgomaster has comrnanded, what

our father has commanded, and so forth. In the case of deserts, the
natural charaeter of these laws arises from a sort of natural economy in
the universe, when something is pushed out of pi ace, natural laws
attempt to return it to the appropriate state. This is evident by analogy
with an Aristotelian theory ofmotion: A violent motion moves an object
from its natural place, and, so it seeks to return. Defying the command
of a superior is, as with a violent motion in Aristotelian physics,
inverting or defying a natural relation. A positive punishment may be
attached as well, but there is an underlying natural desert, a real feature
of the moral world.
There was a second even more striking way that the borders
distinguishing the naturallaw from the positive law were unclear. For
Grotius, "naturallaw" was, perhaps surprisingly, not directly opposed to
the supernatural. One might assurne as a matter of course that
supernatural eommands are always divine positive edicts. But Grotius
emphasized that the natural law could include aetions arising "out of
supernatural prineiples in a natural, that is a fixed and definite, way."16
So religious laws may have a supernatural basis-for example, the ten
commandments-but are also "natural," insofar as they are fixed and
regular. Thus, despite differences in their origins they can become
natural law. This is the point that Locke takes up when he argues that
Christ's laws have a supernatural origin, and however much we might
try to assemble the natural law purely from reason it will be exeeeded
by Christ's revelation; yet these laws are also fully naturally regular and
reasonable. 17
But there is a consequence of this, not intended by Grotius but
stressed by Spinoza. If the operative sense of natural is "fixed" or
regular-as opposed to "not supernatural"-then supernatural edicts get
their natural authority due to their fixity, regularity and intrinsie moral
qualities. And a supematurallaw can become natural through fixity, but
not vice-versa. Onee a natural law, always a natural law (if fixed and
regular) and always judged by criteria internal to the natural law.
Supernaturally derived natural laws consequently pose implicit
problems for Grotius and the philosophers who drew on hirn: how to
preserve the autonomy of the divine positive law, while at the same time
showing the centrality ofnaturallaw as guiding human positive law and
leading to the many duties, fights and obligations present in a
commonwealth or society?

16 DE IMPERIO, supra note 2, at III, 3.

17 JOHN LOCKE AND CHRISTIANITY: CONTEMPORARY RESPONSES TO THE REASONABlENESS
OF CHRJSTJANITY 140 (Victor Nuovo ed., 1997).
 Spinoza and Law 107

2003] SPINOZA AS NATURAL LA WYER 633

III.

Spinoza opened TTP IV, the first public-if anonymous-

presentation of his metaphysics, with a related way of thinking about
law. Laws are to be understood, in general, as action guiding in the
sense that to follow a law is to act by oneself or with others, either a11
others or some others of the same species, in a fixed and definite
mann er (III/57).18 This is consistent with (and perhaps derivative ot)
Grotius' emphasis on a law's "naturalness" due to its fixity, and it is
obviously something more than a positive command.
According to Spinoza's definition, a "natural law" is a law
coextensive with or arising from a particular nature (human nature, the
nature of a triangle) or nature as such. It's fixity is derivative of the
way in which it follows from a given determinate nature or group of
determinate natures. Spinoza gives laws of motion as examples-
arising from the necessity of the nature of extension as such-and
human psychological laws of association arising from human nature.
"Natural right" is also derivative of natures or essences and Spinoza
identifies natural right with the power that a given nature has to act
(III/58). This fits neatly with Spinoza's metaphysical account of laws
as arising from or coextensive with essences, i.e., the laws that
determine your mind and body in its specificity are the laws of your
nature or essence.
Spinoza contrasts natural right and natural law with the human
positive law or decree that men must cede some of their natural right in
order to live in a certain way. For Spinoza, the mandate that one ought
to cede right is opposed to the metaphysical and psychological drive all
beings have to persevere in their existence-the conatus. 19
It might be surprising that Spinoza views the command that men
must cede some of their natural right in order to live in a certain way as
not derived from the natural law, given that it is the first natural law
Hobbes derives from the fundamental natural law in De Cive: "ta seek
peace when it can be had; when it cannot to look for aid in war. "20 In
De Cive, Hobbes wished to show the ceding of right fo11owed from the
necessity to cede right in order to gain peace. But it is neither an
obvious dictate of right reason nor fixed and determinate that peace is to
be preferred to war. 21 Imagine, I can choose between an impoverishing

18 See Traclatus Theologico-Politicus in 3 SPINOZA OPERA (earl Gebhardt ed., 1972)

[hereinafter Trae/atus].
19 See Ethics, in 2 SPINOZA OPERA, supra note 18, at IlI, 7-11 [hereinafter Ethics].
20 See DE ClVE, supra note 4, at 2.
21 For a discussion on Hobbes's basic sense of"naturallaw," see DE C1VE, supra note 4, at 11,
1.
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634 CARDOZO LA W REVIEW [Vol. 25:2

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

22 See OE IMPERIO, sup,-a note 2, at 1lI, I.

23 See Traclatus, supra note 18, at XVI, IIU194.
24 See id. at XVII, 201.
25 BENEDICT DE SPINOZA, THE COLLECTED WORKS OF SPINOZA 589 (Edwin Curley ed. &
trans., 1985).
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those interacting CEthies IVP70-7l). But the backing will be natural in

the strangest sense, fixed and determinate in the way timt any other
natural process-frog processes, far example-are fixed and
detenninate.
In this way of presenting the natural law as fixed and detenninate
in a far stronger sense than Grotius seemed to offer, i.e., as an extension
of natural science, Spinoza was a pupil of Hobbes. In De Cive Hobbes
emphasized the continuity of geometry, physics and morality in a way
that struck the entire "generation of 1632," but above all, Spinoza:
Philosophy is divided into as many branehes as there are areas
where human reason has a plaee, and takes the different names
which the difference ofsubjeet matter requires. In treating offigures
it is eal/ed Geometry, of motion Physics, of natural law, Morals, but
it is all Philosophy .... The Geometers have managed their
provinee outstandingly. For whatever benefit comes to human fife
from observation of the stars, /rom mapping out of lands, from
reckoning of time and from long-distanee navigation; whatever is
beautiful in buildings. strang in defence-works and marvellous [sie}
in machines, whatever in short distinguishes the modern world /rom
the barbarity of the past, is almost wholly the gift of Geometry; for
what we owe to Physics, Physics owes to Geometry.26
Spinoza's variations on these Iines are found in the "Prefaee" to
Book III of the Ethics. He introduced his naturalistie psyehology with
these famous words:
I shall treat the nature and power of the Affects, and the power of the
Mind over thern, by the same rnethod by which, in the preceding
parts, I treated God and the Mind, and I shal1 consider human actions
and appetites just as if it were a question of lines, planes, and
bodies.27
This natural psychology was the eore of human natural law for
Spinoza.

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

26 DE eWE, supra note 4, at 4-5.

27 SPINOZA, supra note 25, a1 492. Both Hobbes and Spinoza are invoking geometry hut both
1hough1 that the sueeess of the natural scienees was due to their geometrical rdonn. Heuee for
both geometry is key for a truly natural seienee.
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636 CARDOZO LAW REVIEW [Vol. 25:2

difference with all of the natural lawyers, insofar as it disallows divine

positive law in its entirety (although one can see the seeds of this denial
of the divine positive law in Gratius' discussion of supematural natural
laws). Human mandates, consequently, have a different source for
Spinoza, they are not reflections of divine mandates, but rather ways
that humans compel or convince other humans to act.
Spinoza believed that human mandates have been taken, wrongly,
by naturallawyers to provide the normative sense of law. The very idea
of divine positive law rests on this mi staken sense of law:
The word "law" seems to apply metaphorically (per tral1slatiol1em)
to natural things, and by law what is commonly understood is
nothing other than a mandate, which men are able to fulfill or
neglect, because it constrains human power under certain limits. 28
Spinoza considered this account ofthe positive law as vulgar and a
means used by the powerful to keep the weak in thrall. In asense,
Spinoza wished to provide a kind of therapy to the natural law in
showing that a consistent definition of natural law, construed like the
laws of physics or geometry,29 results in truly fixed and determinate
laws that eliminate the divine positive law in its entirety. Furthermore,
human positive laws will be conceived differently as well, i.e., not as
derivative of the divine positive law, but rather as necessary physical
and psychologicallaws goveming human conduct.
As a consequence, Spinoza emphasizes that hoth human positive
laws or mandates and naturallaws have natural necessity. The question
is thus how to understand the difference between the human positive
law and the naturallaw. Spinoza's explanation is confusing, but I think
it comes down to this. The laws of human psychology are essential
features ofhuman minds, they are fixed rules for mental action that hold
in each and every case. They are not common to every mind or body in
the way that common properties of minds or bodies are, they still hold
of each and every member of a limited set of minds and bodies-human
beings. Although the positive laws of the state arise from the necessary
laws determining human minds and bodies, they are not essential
features ofbodies and minds, but rather derivative. In other words, their
necessity depends on essential constitutive features of human minds and
bodies, but derivatively.
Spinoza's manner of thinking ahout the relation hetween the
human positive law and the natural law is similar in some ways to
Gratius' discussion of natural hierarchy, i.e., the human positive law
derives its force from natural features, in this case of human essences
and minds. There are, however, two essential differences. For Spinoza,
there is no natural hierarchy, and, consequently, sanctions and

28 See TraClalUS, supra note 18, at IIV58.

29 See Ethics, supra note 19, at III (Preface).
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punishments cannot be viewed as having their basis in the natural law

qua natural of superiority and inferiority relations. And, the distinction
between positive law and natural law is ultimately merely epistemic for
Spinoza, insofar as it is just due to natural limits on our understanding
of the necessary character of naturallaws.
Spinoza strengthens this later point by stressing that we are
ignorant ofthe ways in which the necessary eonstituent causes that enter
into the whir of extension and thought that are our practices involving
external eauses, for example basketball games, operate. This is a
familiar point from the Ethics as well.3° As a consequence, Spinoza
argued that although naturallaws are fixed and necessary, and although
we know that this is the ease, we cannot aceess in particular eases how
this is the case. Consequently, it is neither here nor there when it comes
to our evaluation of them. Another way of thinking about this is in
terms of the distinetion between internal and external causes. Since the
sorts of associations between human beings, in the language of the
Ethics between human modes, involve countless external causes, and
the ways in which our bodies are impacted by many external bodies, we
can have at best minimal knowledge of them. Consequently, human
laws have an explanatory autonomy from the overarehing necessary
laws of nature when considered by finite human beings, even if they
have no metaphysical autonomy. We ean explain how a basketball
game "works" although this explanation will bc at best a functional,
heuristic way of explaining regularities holding among a vast quantity
of external causes and accessed through the imagination.
Now, I would like to consider how Spinoza "naturalizes" the
divine positive law. In TTP III, Spinoza makes an important distinction
between three categories of human endeavor that clarifies this point
further and returns us to the question of the status of Hobbes'
fundamentallaw. 31 According to Spinoza, there are three proper objects
of desire: knowledge of first eauses or metaphysies; the governance of
the passions; and seeking aseeure and happy life. The former two arise
directly from human nature, and so follow from natural laws according
to Spinoza's definition. They are, of course, the subject matter of
Spinoza's Ethics. The third, seeking aseeure and happy life, is different
from the first two. The third. category involves changing external
circumstances. Whatever neeessity these circumstances have, we are
not able to aeeess it (although, again, we know that they are necessary
in general).
Just prior to this distinction between areas of human endeavor,
Spinoza offers his definitions of two theological expressions and one
comrnon expression. These are thoroughly naturalistic redefinitions of

30 See id. at HP, 24-31.

31 See Tractatus, supra note 18, at JII, 46-47.
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638 CARDOZO LAW REVIEW [Vol. 25:2

standard concepts: the direction of God; the election of God; and

fortune. The first two concepts involve God directly, the last indirectly.
These three expressions correspond respectively to each of the areas of
human endeavor just described. When something is said to arise from
God's direction it is properly understood as following from the eternal
and imrnutable order of nature, and Spinoza identifies this with being
ordained by "divine decree" as weIl. God's direction or decree
corresponds to metaphysics, to Books land II of the Ethics, and
Spinoza is clearly trying to refonnulate voluntaristic concepts like
"decree" in a necessitarian way. This is the cardinal example of the sort
of therapy Spinoza is trying to work on the natural law-divine positive
law or "decree" is given a strictly naturalistic definition.
As opposed to divine governance, divine election is whatever
human nature, insofar as it is apart of nature, can use to conserve itself.
This clearly corresponds to Books III and IV of the Ethics, and to that
sense of natural law corresponding to human nature, which I considered
above. Divine election is just the necessary law of human psychology,
nothing backed by the divine positive law.
The third concept, fortune, is defined in relation to divine direction,
but "through external and unknown causes." Again, note the emphasis
on extemal causes. As was the case with political life and the laws
humans make to govem it, these laws ultimately have their source in
God's necessity. How this is the case, though, is unknown-we are
unable to know the detenninate and necessary causes that give rise to
them. Consequently, they, and the rules goveming political conducl
dcrived from them, have an explanatory autonomy from the general
laws of nature. This allows us to talk coherently, if loosely, about
human decrees as arising from human volitions and as being enforced
by sanctions without a need for a divine positive law from which they
derive their authority.
I say loosely, because they are not entirely autonomous, there are
still important ways in which natural laws limit human decrees. Only
those things that are possible as natural laws could back a human
decree, we can't have decrees about human beings made entirely of
nitrogen, who live in universes different than ours, or to give an
example more in line with Spinoza, human beings who do not think.
And more importantly, as we understand more about the laws of human
nature, psychological laws that govem human thought and action, laws
involving the passions and so forth, we limit what will be successful or
even possible human decrees. Conversely, if we know that humans are
happicr in general when they love God, we might account for this when
we attempt to create human mandates.
But the consequence for the natural law is clear. The connectiun
that Grotius attempted to establish between natural hierarchies anchored
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2003] SPINOZA AS NATURAL LAWYER 639

in real moral qualities, duties, rights and obligations entailed by this

law, and natural backing for the human positive law is no longer
tenable. Spinoza is far eloser to Hobbes here. Unlike Hobbes, they do
not point toward a divine sovereign who anchors obligation, punishment
and reward-however dimly-but are realist in the Grotian sense, albeit
with content restricted to scientific and psyehologicallaws. The laws of
the state, although backed by natural laws-for example laws which
show whieh kind of government is best, that sociability is to be sought,
that toleration is the best poliey-are in their specificity human positive
laws. And hopefully, there is no divinity, mueh less the divine positive
law, in sight.
Now when we combine this with the distinetion between ethics and
metaphysies on the one side and politics on the other, we have the
following state of affairs. We ean understand first prineiples and
govern our passions through understanding naturallaws, the laws of
nature (neeessary metaphysical and physicallaws) and our own natures
(necessary psyehological laws). Seeking a stable and happy li fe
involves external causes, so it cannot be understood purely in terms of
naturallaws, insofar as it entails eonfused circumstanees-where the
intrinsic necessity is beyond our ken. This leaves an important place in
Spinoza's theory for positive laws with sanctions. In order to have a
happy and stable life we need to sometimes ereate, or have others
create, mandates that constrain the many through sanctions: rewards and
punishments. This is necessary in order for the state, or groups of
individuals, to be united in acting and consequently fo11owing laws.
So, most of what the natural law tells us is not social, even though
it tells us to be social. Most ofit eoncerns psychology, and in particular
Spinoza's rich theory of the affects as presented in the Ethics.
Ultimately, Spinoza emphasizes that only a man who aets not out of
eompulsion but rather because he understands the reasons for the laws
and their neeessity "aets from the constancy of their mind alone" and
properly can be called just. Human justice refers then primarily to those
just individuals able to understand their own psychological make-up and
act in determinate ways from it. Dur minds are most stable and fixed
when we understand reasons, since when we recognize the necessity in
laws, they become necessary psychological laws from which we act
consistently. The more this is the case, the less we need rely on any
positive law, human or divine, and the more our minds are guided by
the same fixed and determinate rules which govern a11 parts of nature.
This is a decidedly Stoical sense ofjustice, i.e., centeringjustice on
the individual Stoie sage acting from constant principles. Like Seneca
and other Stoics, this goes hand in hand with a rieh doctrine of the
affects. Why? In Spinoza's case the doctrine of the affects allows hirn
to provide a natural theory of desert parallel to Grotius' account.
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640 CARDOZO LA W REVIEW [VoL 25:2

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.

32 See Elhics, supra note 19, at llIP, IIS.

33 JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING 229 (Peter Nidditch ed.,
Oxford Univ. Press 1979).
 Spinoza and Law 115

2003] SPINOZA AS NATURAL LAWYER 641

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.

34 See HAAKONSSEN, supra note 7.

 [8]
The naturallaw

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.

6.1 DICTATES OF REASON AND DIVINE LAWS

Spinoza's most prominent discussion of practical laws in the Ethics is

found in 4PISS, where he considers the "dictates of reason." While he
does not explain precisely how reason provides practical guidance, the
dictates of reason are practical principles for promoting our power, which
suggests that reason directs us to actions in the sense of indicating that they
are good. Spinoza's list of reason's dictates indicates that many of them
118 Spinoza and Law

Dictates 0/ reason and divine laws 113

are universal prescriptions, applying to all people in all situations. I The
two primary dictates are "that every man should seek his advantage" and
that we should act to the bendit of others - "men who are governed by
reason ... seek nothing for themselves that they would not des ire for the
rest of mankind" (4pI8s); I will refer to these as the 'first' and 'second' laws
respectively.2 Although the second describes what rational people would
do, it nevertheless provides a universal law by implying that it would be
good for all people to act to the benefit of others, since using reason is
in our best interests. 3 In fact, the second law resembles the golden rule,
though it is slightly different: Spinoza's dictate commands us to "do for
yourself only what you would do for others," rather than "do to others,
what you would have them do to yoU."4 His claim in 4P37 comes closer:
"the good which every man who pursues virtue aims at for hirnself, he will
also desire for the rest of mankind," in other words, "do for everyone what
you would want for yourself"5
However, not all of Spinoza's dictates of reason are universal in scope.
Most importantly, he claims that all the free man's actions arise from dictates
of reason (4P72d), but so me of these dictates cannot be universal. Since
Spinoza describes the free man as completely rational and self-determined,
having only adequate ideas (4p68d), what is good for hirn will not be the
same as what is good for uso For instance, consider the claim that the
free man would not lie, even to save his life (4P72d). This makes sense
for a free man, since he has nothing to lose: having fully adequate ideas,
he already possesses the highest good, and since he sees all things under
the aspect of eternity, he would see no further value in prolonging his
existence, "for no individual can be said to be more perfect on the grounds

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

114 The naturallaw

that it has continued in existence over a greater period of time" (4pref).
But this dictate would not benefit us, since dying would deprive us of
the opportunity to increase our power in the future. 6 The fact that the
actions of the free man are not listed among the dictates of reason in 4PI8s
suggests that it lists only the dictates that apply to all humans in virtue of
the adequate ideas available to uso
Spinoza has much more to say about practicallaws in the TTP, though
understanding this point requires us to consider his general account oflaws
there. He first defines laws as "that by which an individual, or all things, or
all things of a particular kind, act in one and the same fixed and definite
manner, which manner depends either on natural necessity or on a human
decision" (TTP 4, I). As suggested by the tail end of the passage, Spinoza
distinguishes between naturally necessary laws, such as physicallaws, and
'man-made' laws: whereas the former hold regardless of human ideas and
preferences, the latter depend on "human decision," that is, on human
commands and our ability to recognize them as binding? Consequently,
man-made laws are different because they are both violable and also limited
in domain, applying only to those things that have the capacity to recognize
and follow laws. 8 Because of these differences, Spinoza claims that such a
law "is more correctly called astatute [ius]" (TTP 4, 2). Nevertheless, it is
important to Spinoza that we recognize man-made law as a kind of law.
Thus, he offers a second definition oflaw as "a rule for living which a man
prescribes to himself or others for some purpose" (TTP 4,2).
Spinoza further divides these rules ofliving into human and divine laws:
By human law I mean a prescribed rule of conduct which aims only to protect life
and the state.
By Divine law I mean that which is concerned only with the highest good, in
other words, the true knowledge and love of God. (TTP 4, 3)9

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

Dictates 0/ reason and divine laws

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

Dictates ofreason and divine laws II7

from the Stoics, through Aquinas, Suarez, Grotius and Hobbes. While there
is much variety among these accounts, they tend to agree on certain funda-
mental claims abollt naturallaws, that they are universal, divine commands
revealed by reason and binding independently of political enforcement. II
Admittedly, Spinoza's divine laws are not divine decrees in any literal sense,
since his God has no will, though the fact that Spinoza referred to the
dictates of reason as divine law in the TTP suggests that he was trying
to accommodate this aspect of the natural law tradition. I2 Nevertheless,
Spinoza's laws possess the other common features: they are revealed by
reason, universal and binding independently of any political enforcement,
since following the divine laws provides its own reward and breaking them
provides its own punishment. Spinoza even suggests that they are, at least
sometimes, universally known: "this law is so deeply inscribed in human
nature that it should be counted among the eternal truths universally
known" (TTP 16, 6). Not surprisingly, Spinoza sometimes calls the divine
law "natural divine law" (TTP 4, 6) or just "naturallaw" (TTP 4, 7).13
Henceforth, I will assume that the terms 'divine law' and 'naturallaw' are,
for Spinoza, extensionally equivalent and furthermore, that they include
the universal dictates of reason discussed in 4p18s. 14

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

Dictates ofreason and divine laws

the normative claim that we should do so, because we desire to promote
our power and, thus, to be rational. 19
One might object that Spinoza's naturallaws are fundamentally different
because they have a different scope: Hobbes' naturallaws are universally
binding in virtue of indicating the means for self-preservation, which all
people desire, whereas Spinoza's naturallaws are only binding for those who
are sufficiently rational to identif)r the actions that follow from adequate
ideas. 20 However, their positions are not really so different. Since, for
Spinoza, all people strive to increase their power, theyalso desire to increase
their power, as I argued in Chapter 5. It follows that all people desire to
follow reason, whether or not they realize it, since doing so most increases
their power. Consequently, Spinoza's naturallaws are universally binding
in the sense that all people possess desires that provide them with reason
to accept the dictates as binding. Of course, it does not follow that all
people accept the dictates, since people may fail to recognize that using
reason increases their power. However, this is no different from Hobbes'
position. While Hobbes holds that all people have reason to accept the
natura11aw as binding, since they des ire self-preservation, he nevertheless
allows that people may fail to recognize that the naturallaw helps to satisf)r
their desires. Indeed, claiming that there is conHict in the state of nature
requires that at least some people fail to recognize that their interests are
best served by obeying naturallaws commanding peaceful cooperation.
This discussion helps to clarif)r the precise way in which Spinoza's natural
laws are universally binding. They are not universally binding in the strict
sense that all people accept them as authoritative. This is because the natural
laws are commands given by one's particular rational powers, which vary by
individual: for one who understands the conclusion of 4p28, reason dictates
that it is most beneficial to increase one's understanding, but this is not
the case among the ignorant, who do not recognize this conclusion. This
explains why Spinoza claims that naturallaws are not universally binding
in the state of nature: in the absence of external enforcement mechanisms,
the naturallaw only has force for those who follow reason: "among men,
as long as they are considered as living under the rule of Nature alone, he

'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

120 The naturallaw

who is not yet acquainted with reason ... lives under the sole control of
appetite with as much sovereign right as he who conducts his life under
the rule of reason" (TTP 16,2).21 Nevertheless, Spinoza's naturallaws are
universally binding, even in the state of nature, in the weaker sense that
all people have reason to accept the naturallawas authoritative, since all
people des ire to increase their power and the naturallaw indicates actions
that do so. In recognition of this point, Spinoza immediately follows up
the passage above by qualifYing that "there cannot be any doubt as to how
much more it is to men's advantage to live in accordance with the laws and
sure dictates of our reason, which, as we have said, aim only at the true
good of men. Furthermore, there is nobody who does not des ire to live in
safety, free from fear, as far as is possible" (TTP 16, 5). In short, the natural
law is universally binding in the sense that following the law benefits all
people and satisfies their desires, but is not universally bin ding in the sense
that people may fail to recognize this point.

6.2 THE PERSPECTIVE OF REASON

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

The perspective ofreason 121

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

122 The naturallaw

in order to preserve his own being, it would be better for every man to act
deceitfully ... which is absurd. (4P72sch)

One might miss the significance of this passage by reading it as follows:

(I) The free man acts only on dictates of reason.
(2) Acting in accordance with the dictates of reason is virtuous (by defini-
tion).
(3) Thus if the free man lied, it would be virtuous to lie (from [IJ and [2]).
(4) We know that it is not virtuous to lie.
(5) The free man would not lie (from [3J and [4J by modus tolens).
According to this reading, the argument presupposes in (4) what is intended
to be its main conclusion, that honesty is virtuous. This would be especially
problematic, since it is not clear why an egoist like Spinoza would uphold a
prohibition against lying. Moreover, if the argument assurnes that it is not
virtuous to lie, then it is not clear what the purpose of the passage is; we
already knew that the free man is virtuous. A better reading go es as follows:
(I) A perfectly free person acts only on dictates of reason.
(2) Dictates of reason must be applicable to all people, in other words,
universalizable.
(3) Iflying were a dictate of reason, then "it would be better for every man
to act deceitfully" (from [IJ and [2]).
(4) It is absurd to think that people would be better off in a world where
everyone lied.
(5) Lying must not be a dictate of reason (from [4J and [2]).
(6) The free man does not lie (from [5J and [I]).
On this reading, the free man upholds a rule against lying because a
perfectly rational being would only follow universalizable principles. He
uses similar reasoning in the scholium.
I reply in the same way, that if reason urges this [men to lie], it does so for all
men; and thus reason urges men in general to join forces and to have common
laws only with deceitful intention; that is, in effect, to have no laws in common
at all, which is absurd. 23

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

The perspective ofreason 12 3

right action, much like Kant's categorical imperative. However, my reading

supposes only that the free man should act on the basis of universalizable
principles. It does not foHow that we should act on universalizable princi-
pies. On the contrary, the previous section argued that the dictates of reason
for the free man do not apply to ordinary humans. Since Spinoza does not
mention the importance of universalizability elsewhere, it appears that
ordinary humans need not act on universalizable principles. So, while it is
the nature of reason to demand that one act on universalizable principles,
normal humans, apparently, are not sufficiently rational that it demands
this for uso Nevertheless, Spinoza's claims in 4P72S still have implications
for ordinary humans. In particular, they offer an explanation for why rea-
son dictates laws, because it is the nature of reason to demand principles
that hold for aH people. This indicates that reason dictates laws because it is
impartial, formulating practical guidance without giving special priority to
particular individuals. This answer has already been suggested by Spinoza's
golden rule, which dictates that we treat others as we want to be treated
so that we avoid privileging ourselves. The answer is implicit in Spinoza's
explanation of the cause of interpersonal conflict. When Peter and Paul
fight over a mutual object of love
the reason for their dislike is none other than that they are assumed to differ in
nature. For we are supposing that Peter has an idea of the loved thing as now in his
possession, while Paul has an idea of the loved thing lost to hirn. Hence the lauer
is affected with sorrow, while the former is affected with joy, and to that extent
they are contrary to each other. (4P34s)

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

124 The naturallaw

According to this explanation, reason reduces conflict because it inclines us
to assess situations without giving special priority to our particular relations
to things, in other words, impartially. Spinoza asserts precisely this in his
early writing, arguing that knowledge of God and, thus, rationality "serves
to promote the greatest common good, because through it a judge can
never side with one party more than with the other, and when compelled
to punish the one, and to reward the other, he will do it with a view to
help and to improve the one as much as the other" (KVn, 18, 85).
One might be troubled by my suggestion that Spinoza conceives of
reason as impartial, since he generally holds that reason directs us to our
self-interest. Prima facie these claims appear to be inconsistent or, at least,
in tension. To address this concern, we need a better understanding of why
and how Spinoza regards reason as impartial, which requires examining his
account of time. Spinoza holds that reason understands things as necessary,
whereas the imagination confusedly supposes that things are contingent
(2p44c2d).25 This entails that reason understands things "without any rela-
tion to time" (2p44c2d). Indeed, Spinoza regards time as "a product of the
imagination" (2p44C1S).26 According to this view, if we understood things
perfectly through reason, then we would see all things as existing timelessly.
This implies that we only see things as having a finite duration of existence
through the influence of the imagination. On this view, my idea that Julius
Caesar does not exist now is inadequate and confused. Of course, the idea
is not confused because Caesar is actually, despite what we've heard, still
alive. Rather, the idea is inadequate merely because it contains a temporal
predicate: exists now.
2p44C1S offers some insight into the basis for this counterintuitive claim.
Spinoza explains that the imagination always represents things as present
unless it is countered by an idea that negates the existence of the thing.
On this view, I could only deny that Caesar exists now because my natural
tendency to conceive of Caesar as present is checked by a more powerful
idea that Caesar does not exist. Spinoza explains that we form such ideas
through the influence of external bodies acting on our own. So, my idea
that Caesar does not exist comes from experiences that provide evidence for
this claim - reports of Caesar's death, the fact that I have never met Caesar
and so forth. The problem with the idea is that, following 5pinoza's causal
determinism and substance monism, Caesar's existence follows necessarily

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

The perspective ofreason 12 5

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

126 The naturallaw

for action are impartial in the sense that they do not take account of our
individual spatial and temporal perspectives and, thus, a great many of our
individual concerns. 29 Given this explanation, we can see how Spinoza can
consistently hold that reason is impartial and how this directs us to our self-
interest. For reason is not impartial in the sense of selfless, recommending
that we choose the good of others over oUf own good. Rather, it is impartial
in the sense that it judges our good without considering the spatial and
temporal perspectives by means of which we distinguish and privilege the
particular concerns of individuals, including ourselves. 30
While this discussion shows that reason is impartial, it does not neces-
sarily follow that Spinoza's ethics is impartial. To understand this point, we
must consider an argument that will be taken up and developed in Chapter
9. In short, reason's guidance cannot be put into practice without assis-
tance from the imagination, because reason does not take account of space
and time, which are essential features of practical situations. For instance,
while reason guides me to act for the good of others, I cannot determine
what specific course of action will benefit others without attending to
their position in space and time, which requires representing them in the
imagination. Consequently, applying reason's guidance, as Spinoza's ethics
demands, requires us to attend to necessarily partial representations of our
own interests. This argument entails that there is a significant difference,
for Spinoza, between reason and rational deliberation, that is, between
our general and impartial adequate ideas and the deliberative processes by
which we use these ideas to determine our actions. Similarly, there is a
difference between the practical perspective, which determines our actions
with the assistance of the imagination, and the rational perspective, which
provides general practical guidance but cannot determine specific actions.
Thus, the rational perspective is relevant to but also somewhat removed
from the practical perspectiveY Because of this argument, I cannot specify

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

The perspective ofreason 12 7

the extent to which Spinoza's ethics is impartial until Chapter 9, when I
consider how we apply and interpret reason's guidance.
However, I can point out two ways in which reason's guidance is impar-
tial, given the previous discussion. First, as I will explain in the next chapter,
rationality indines us to interpret the natural law dictating benevolence
without giving special priority to our spatial and temporal perspective. So,
the mere fact that someone is dose in proximity to me does not provide
a rational reason for acting to benefit her, rather than someone halfway
across the globe. Second, as I will also argue, reason directs us to act with
benevolence on the basis of humans' shared rational nature. This means
that the naturallaw provides no basis for giving special preference to indi-
viduals on account of their particular relationships to us, thereby preferring
associates, friends and family to strangers or even enemies. However, this
does not necessarily mean that rational people will act in this way, since
assuming the practical perspective requires representing ourselves in space
and time through the imagination, thereby attending to the countless ways
we benefit from our intimates and those near to us in space and time.
Second, rationality indines us to place less value on material possessions,
since they are often valuable in virtue of our particular spatial and temporal
perspective. This point is implied by Spinoza's explanation for the origin
of conflict discussed above. Remember, Paul enters into conflict because
of his irrational sorrow at losing some loved object. Thus, Paul's sorrow
is based on the irrational desire to have the object under his control, that
is, within certain regions of space at certain times. Spinoza's disdain for
material possessions is most explicit in TdIE, where he considers what most
people regard as the highest good, to judge from their actions, induding
"riches" (3). He argues that riches cannot give us true happiness because
they are fleeting: "if it should co me about that our hopes are disappointed,
there ensues a profound depression" (5). In contrast, Spinoza argues that
true happiness arises from focusing our energies on eternal things: "love
toward a thing eternal and infinite feeds the mind with joy alone, unmixed
with any sadness" (10).
Of course, Spinoza would not reject all possessions as irrational. His
account of the conflict between Peter and Paul indicates that they are
irrational not because they desire to own the loved object, but rather for
supposing that the object is valuable in virtue of owning it. This implies
only that it would be irrational to own things that benefit us equally

perspective of reason. In other words, the practical and rational perspective are the same only for
the free man.
 Spinoza and Law 133

128 The naturallaw

regardless of whether we own them, for instance, great works of art. But this
is not the case for all possessions. On the contrary, Spinoza holds that reason
directs us to seek things that promote our power, which must include, in
some instances, material resources. After all, one needs to eat in order to be
able to engage in virtuous activities. Consequently, it would be rational to
own food or shelter, things that benefit us in virtue of a particular spatial
and temporal relationship that requires ownership. Nevertheless, Spinoza
only regards material possessions as valuable as a means for securing our
true good, which is rationality. Consequently, a rational person would live
much as Spinoza did, securing the resources required for directing one's
life to the highest good, but otherwise not giving any special priority to
material possessions.

6.3 MORALITY AND AUTONOMY

The foregoing has important implications for Spinoza's view of autonomy:

if rationality consists to some extent in following impartial and universaliz-
able rules for action, then so too does our freedom and autonomy. While it
would clearly be false to paint Spinoza as a proto-Kantian, this claim has an
unmistakable Kantian ring to it, one which deserves further exploration.
One might object to this line ofinvestigation, at the outset, on the grounds
that Kantian autonomy consists in acting mo rally, while Spinoza has no
notion of morality. Admittedly Spinoza does not subscribe to the notion
that there is a distinct category of moral concepts. This way of thinking
is predicated on the view that there are moral, that is, non-self-interested
reasons for action, which impose practical requirements or duties. In con-
trast, Spinoza avoids any strong concept of obligation, sticking instead
to the softer normative ought of a prudential should. Consequently, he
offers no grounds for a principled distinction between actions that are
mo rally required - for instance, saving a human life when presented with
the opportunity at no cost to oneself - and merely good, such as eating
a delicious meal. Nor does he allow for a principled distinction between
impermissible acts, such as murder, and acts that are merely bad, such as
skipping a meal.
While Spinoza's ethics does not count as moral in this narrow sense, it
does count as moral in the broader sense that includes most ancient ethics.
In fact, Spinoza's avoidance of strictly moral concepts is partly a conse-
quence ofhis eudaimonistic approach to ethics, which prohibits drawing a
principled distinction between moral value and benefit. However, treating
ethical value as a kind ofbenefit does not imply that eudaimonistic ethics
134 Spinoza and Law

Morality and autonomy 129

cannot recognize the obvious difference between the value of a delicious

meal and saving a life. 32 Here Annas' defense of ancient ethics holds just as
well for Spinoza:

On the one hand, virtue is not straightforwardly incommensurable with other

things, in the sense of not being on the same scale at all. A penny has the same
kind of value (monetary) as Croesus' riches; one step does get you some of the
way to India. On the other hand, there is a difference so marked that seriously
to compare these items shows a lack of understanding of what they are. Someone
who seriously congratulated herself on the progress she had made towards getting
to India after taking one step would be showing lack of understanding of what one
step is and what the joumey to India is ... Similarly, while we can at the intuitive
level talk of virtue, health and so on as considerations all of which have value in
an agent's life, seriously to compare the value of money as against that of honesty,
say, shows a misconstrual of what money is and what honesty iS. 33

There is a further way that Spinoza's ethics is friendly to moral concepts,

one implicit in his view of the naturallaw. 34 My argument here hinges
on the previous claim that it is valuable to follow the naturallaw simply
because it is commanded by reason. This entails that there is a value to
acting on or for the sake of principle, independently of the consequences
to oneself This commitment bears some resemblance to the notion of
duty, an obligation based on principle. We must tread carefully here, for
Spinoza's 'duties' do not stand independent of self-interest. Furthermore,
he does not hold that acting on such 'duty' has overriding value; in other
words, the value of acting on principle does not necessarily trump harmful
consequences to oneself For there are likely many cases where the value of
following the naturallaw is outweighed by the harmful consequences of
doing so. For instance, for most people death is sufficiently harmful that
it would be acceptable to violate a law prescribing benevolence in order to
save one's life. Nevertheless, Spinoza's view allows that there may be cases
where the value of acting in accordance with the naturallaw is sufficiently
beneficial to outweigh harmful consequences to oneself: helping a stranger
in need, since it is commanded by reason, may sufficiently improve my

)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

13° The naturallaw

power that doing so outweighs the harmful consequences of, say, having
less money or time for myself.
Given the qualified sense in which Spinoza offers a moral philosophy,
we can consider how his view on the relationship between morality and
autonomy stands with respect to Kant's. Despite their enormous philo-
sophical differences, Spinoza's ethics captures two claims that have been
central to Kantian ethics. The first is that we are most autonomous when
we act morally, that is, leading a virtuous life and directing ourselves in
accordance with moral requirements. Of course, this claim means some-
thing very different for Spinoza, because he has such a different view of
what it means to be moral. A first difference is that Spinoza does not regard
universalizabilityas a test for right action - at least, for ordinary humans-
which leads hirn to place less emphasis on the importance of moral rules.
To some extent, this view can be traced to Spinoza's eudaimonism, which
leads hirn to focus on how we should understand the value of our various
activities for the purpose of planning our lives, rather than rules for judging
specific actions. However, the more fundamental reason is that Spinoza's
ethics directs us to our good, which varies depending on the situation. This
entails that any universal rule directing us to our good is necessarily very
general- "every man should seek his advantage." Consequently, Spinoza's
rules are not sufficiently fine-grained to provide specific practical direction.
Indeed, it is impossible for reason to even determine our actions without
the assistance of imaginative representations.
A second difference is that Spinoza's moral philosophy, unlike Kant's,
does not require us to act selBessly. On the contrary, Spinoza holds that
practical normative claims are based in self-interest. This difference can be
traced, first, to their different views on the perspective of reason. While
Spinoza and Kant agree that we become autonomous by assuming the
perspective of reason, their conceptions of this perspective are diametrically
opposed. For Spinoza, the perspective of reason is, on a fundamental level,
one's own self-interested perspective, the perspective that reveals what is
best for us. 35 It is revealing that Spinoza's formulation of the golden rule
does not ask us to take into account the perspective of others. He avoids
the usual claim that we should do unto others as we would have them
do unto us, which requires us to consider what they should do and, thus,
what the world looks like for them. Rather, he claims that we should do for

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

Morality and autonomy

others what we want for ourselves, formulating the requirement entirely

from one's own perspective. Even when Spinoza considers whether lying
is universalizable, he does not take into account how others are affected
by lying. He simply appeals to the obvious unacceptability - presumably
for oneself - of a society where lying is widely practiced. Kant, in contrast,
holds that the perspective of reason transcends our own self-interested
motives, concerns and feelings:
An action frorn duty is to put aside entirely the influence of inclination and with it
every object of the will; hence there is left for the will nothing that could deterrnine
it except objectively the law and subjectively pure respect for this practical law,
and so the maxi rn of cornplying with such a law even if it infringes upon all rny
inclinations. (G 4:400-r)
Kant has a deep metaphysical reason for this view: we are only autonomous
when we act purely from respect for the law because this entails govern-
ing ourselves from pure reason, independently of the causal forces that
determine the relations among objects in space and time. For Spinoza, in
contrast, there is no possibility for humans to escape causal determination.
Adopting the perspective of reason makes us free not because it is entirely
self-determined, but rather because it best increases our power.
Spinoza's philosophy captures a second important Kantian claim, that
autonomy is the basis for morality. Kant asserts this claim at the end of
the second section of the Groundwork, where he claims to have shown
that "autonomy of the will is unavoidably bound up with it [the generally
received concept of morality], or rather is its very foundation [zum Grunde
liege]" (G 4:445).3 6 For Kant, autonomy is the foundation for morality in
the sense that being moral requires us to be autonomous. The reasoning
for this claim is roughly that being moral and autonomous both involve
the same essential activity of self-Iegislation. With respect to the latter,
Kant understands autonomy not merely as self-determination, but more
literally governing oneself according to law, in much the same way that a
sovereign power governs astate; thus, he defines autonomy as "the property
of the will by which it is a law to itself" (G 4:440). For Kant, this is
precisely the same activity required by morality, for he argues that duties
must originate in agents themselves, specifically in reason, which requires
that laws have a universal form. While Kant does not hold that all moral
requirements take the form oflaws - he admits imperfect duties, which are
not strict laws - he holds that all moral requirements must be universal;

)6 This translation and discussion is indebted to Reath (2006, Chapter 5).

 Spinoza and Law 137

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

Spinoza's account of the dictates of reason from 4pl8s indicates that he

accepts essentially two practicallaws, that we should act in our best interests
and Spinoza's version of the golden rule, that we should treat others as
we would choose to be treated. His account of divine laws in the TTP
contributes to this account by showing that the dictates are laws in the
sense that they are rules for living that humans set for themselves. Unlike
human laws, though, divine laws are necessarily rational and do not depend
on political enforcement mechanisms. In this sense, they resemble natural
laws as they were commonly understood, except that Spinoza's are not
decreed or enforced by a divine will. Consequently, natural laws derive
their normative force, rather, from our desires, in a way that resembles a
common reading of Hobbes. It follows that natural laws are universally
binding in the sense that we all possess the desire to increase our power
in virtue of which they are normatively binding. Nevertheless, Spinoza's
naturallaws are not universally binding in the sense that not all people use
reason to recognize them.
Spinoza's commitment to the notion that reason provides laws for action
is explained partly by his view on the nature of reason. Reason does not
represent particular things, which entails that its prescriptions are derived
from human nature generally, thereby applying to all people in all sit-
uations. However, this explanation alone cannot be sufficient, since the
free man has adequate ideas of particular things and still acts in a rule-
like way. Indeed, Spinoza's explanation of the free man's actions indicates
that he acts according to principles that are universalizable. It follows that
reason demands impartial action, not giving special preference to oneself.
This explanation is supported by Spinoza's view that time and space are
confusions of the imagination.
Spinoza clearly does not demand this sort of impartiality for us: he
does not suggest that we should determine our action by universalizing
principles or that we should ignore spatial and temporal representations of
our needs. Nevertheless, it suggests that as we become more rational, we
will increasingly understand our interests without respect to our particular
spatial and temporal perspective. The naturallaw is a step in this direction

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

134 The naturallaw

for it directs us to our good entirely on the basis of reason without attending
to this perspective, which also explains why the naturallaw takes the form
of a universallaw. This explanation helps us to specify precisely how reason's
guidance is impartial: to the extent that we are rational, we will recognize
that we benefit from helping others regardless of their proximity to us and
we will place less value on material possessions. While it is consistent with
reason to own some things - whatever is required for achieving our true
good - a rational person would not value material possessions for their
own sake, independently of how they promote one's rationality.
An important conclusion of this interpretation is that Spinoza under-
stands the relationship between autonomy and morality in a way that
moves him far closer to Kant than one might think. Of course, Spinoza
does not have a concept of morality or duty, independent of prudence and
self-interest. Nevertheless he has a moral philosophy in the same general
sense as the ancients and, furthermore, he allows for a concept that approx-
imates a weak notion of duty, that there is an intrinsic value to acting in
accordance with reason and, thus, to acting for the sake of the naturallaw.
This allows that there may be times when we should act for the sake of
an impartial principle despite harmful consequences to oneself Given this
qualified understanding of Spinoza's commitment to morality, he upholds
two claims that are usually associated with Kantianism. The first is that we
are most autonomous when we are moral. While Spinoza does not regard
the activity of legislating morallaws to be as important to morality as does
Kant, Spinoza nevertheless holds that the more autonomous we become,
the more we act on the basis of impartial and universal principles. Spinoza's
principles are also impartial in a different sense than Kant's, for Spinoza's
principles are ultimately self-interested, though Spinoza's understanding of
rational self-interest does not look particularly selfish. The second claim is
that autonomy is the basis for morality. For, like Kant, Spinoza holds that
we are only able to grasp moral requirements by becoming rational and,
thus, autonomous.
 Part 111
The Nature ofLaws
 [9]
Laws in Spinoza and Saint Thomas Aquinas*
Gerard Courtois

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).

1- LAWS OF NATURE IN SPINOZA

This problem must be approached from two different standpoints: that ofGod, and that ofthe
individual.

A. - The ens absolute infinitum and laws

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.

1. The critique ojSuarez's and Leibniz's conceptions.

To both these authors, divine understanding faces some objective possible.

Suarez professes that God's speculative intellect submits to those possibles he never really
creates. They are exterior to God and are endowed with an objective identity before hirn.
God has a representative relation with truth; God's intellect is 'purely speculative rather
than operative. '4 The truths that are to become laws of nature are not true because they are

2 On internal determinations, see EITP45Sch, infine; EITTDI-2; EIVD8.

2 EIP17 and EIP17Corl.
2 'ln regard to these enunciations [oftruth], the divine intellect is related as purely speculative,
not as operative. But the speculative intellect supposes the truth of its object, it does not pro du ce it.
Therefore, enunciations like this, which are said to be in the first, and even in the second, type of
essential predication, have eternal truth, not only as they are in the divine intellect but also in themselves
 Spinoza and Law 145

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.

2. The critique ofOccamism and ofDescartes.

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?

B. - The stand point of the individual

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?

11 - LAWS IN THE REALM OF PHILOSOPHY OF RIGHT

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.

A. - The exclusion of normativity in the Jus naturae

As is well known, Spinoza conceives of an individual's Jus as equivalent to his potentia. 36

Naturallaw prohibits nothing except that which we do not desire and it allows everything
except that which we are unable to do. 37 It is a direct and composed function of desire and of
each singular power.
What is the relation between this natural law and the laws of nature? It is one of strict
equality: the laws of our desires and the laws of our abilities determine the objects as well as
the extension of our right.
'By the right of nature, then, I understand the laws or rules of nature in accordance with
which all things come to be; that is, the very power of nature. So the natural right of nature as a
whole, and consequently the natural right of every individual, is coextensive with its power.'38
There is no difference whatsoever between each being's natural right and the laws of its
natural power, since all natural powers are part of the absolutely free divine power. 39 Each
being is free with regard to an exterior norm because God is absolutely free with regard to any

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?

B. -Jus civile and normative laws

The Theological-Political Treatise contemplates a distinction between laws 'which depend on

nature's necessity' and laws 'which depend on human will' .42 The former assurne the category
ofjus naturae; the latter outline the reahn ofthe jus civile. We can show directly that the latter
are sub-types ofthe former - that is what Spinoza specifies when he says that 'all things are
determined by the universallaws of nature to exist and to act in adefinite and determinate
way' .43 The distinction intends to think of jus civile in view of its proximate cause, that is,
man in so far as he is in the situation of a 'generalization about fate and the interconnection
of causes (which) can be ofno service to us in forming and ordering our thoughts concerning
particular things' .44
In the light of these epistemological considerations, it is important to focus our attention
on the reasons why Spinoza conceives ofjus civile as subject to the universal working ofthe
leges naturae. We must realize how his analyses of apparently normative laws are framed
within the general case of necessity; chiefly, how law fits into the following epistemological
principle established in the Ethics:

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.

1) Lawsfrom the standpoint ofthe ignorant man.

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.

2) Lawsfrom the standpoint ofthe rational man.

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

57 Theological-Political Treatise, chapter XX.

58 Political Treatise TIT, § 9; IV, § 4.
 Spinoza and Law 157

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.

III - SAINT THOMAS AND SPINOZA

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

59 Saint Thomas, Summa Theologiae, Ta 14 a8; 19 a2.

60 Jbid. Ta TTae, 93 al.
61 Jbid. Ta 59 a2.
62 EIVP25.
63 'There alone are essence and will identified where all good is contained within the essence
of hirn who wills; that is to say, in God, who wills nothing beyond hirnself except on account of his
goodness. This cannot be said of any creature, because infinite goodness is quite foreign to the nature of
any created thing' (Summa Theologiae, Ta 59 a2).
158 Spinoza and Law

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. Ta, TTae, 93 a6.

64

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

71 1bid. la, 25 a6 ad3.

72 1bid. la, 25 a5 ad3.
73 EIVP73Sch; see also ElllPref; Political Treatise 1, § 4; ll, § 8.
74 Saint Thomas, Summa Theologiae, Ta TTae, 93 a3.
75 We develop this question turther on.
160 Spinoza and Law

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

761bid. 92 al ad4; 93 a3 ad2.

77The other theoretical device in this anti-dualistic enterprise is the doctrine according to which
evil does not exist since everything that exists belongs to the order ofthe good.
78 Jbid. 93 a5 ad3. A principle that has no exceptions is mentioned in the questions regarding the
providence omnia divinae providentiae subjacere. non in universali, sed etiam singulari. Omnia,
inquantum participant de esse, intantum subdi divinae providentiae: 1bid. la, 22 a2.
79 1bid. la, 22 a2 ad2.
so Jbid. ad4.
SI Jbid. Ta TIae, 91 a3 ad 1.
 Spinoza and Law 161

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.

87 EIVPI8Sch. For further developments more geometrico, see EIVP29-37.

88 EIVAppCap20. The difference between Spinoza and Saint Thomas here lies in the fact that,
for Spinoza, marriage has no essential place in the mediation between the individual and the universal.
Also, Spinoza acknowledges the autonomy oflove between individuals, as long as it is based upon inner
freedom rather than upon mere beauty.
89 'Man has a natural inclination to know the truth ab out God, and to live in society: and in this
respect, whatever pertains to this inclination belongs to the naturallaw; for instance, to shun ignorance,
to avoid offending those among whom one has to live, and other such things regarding the above
inclination' (Saint Thomas, Summa Theologiae la llae, 94, a2).
9() Jbid. I al and 2.
91 'The mind can bring it about that all the body's affections, or images ofthings, are related to the
idea ofGod' (EVPI4). See also EIIP45.
92 Saint Thomas often refers to the precepts ofhis naturallaws as dictamina rationis. For instance:
nihil est aliud lex quam quoddam dictamen practicae rationis ... (Summa Theologiae la llae, 91 al);
ratio humana non potest participare ad plenum dictamen rationis divinae (lbid. 91 a3, adl; 104 al; etc.).
93 EIVPI8Sch.
94 This point was developed specifically in the works ofMichel Villey.
 Spinoza and Law 163

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.

98Saint Thomas, Summa Theologiae Ha Hae, 57 a2.

99Spinoza, Political Treatise ll, § 8.
100 'Since all men everywhere, whether barbarian or civilised, enter into relationships with one

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,

]03 EIVP37Sch2; Political Treatise TI, § 23.

104 Ibid. TII, § 3.
105 Ibid. § 4.
106 Theological-Political Treatise, chapter XX, pp. 304-305.
107 Political Treatise Ill, § 8.
lOS Theological-Political Treatise, chapter XX, pp. 305-312.
]09 Saint Thomas, Summa Theologiae TIa TIae, 104 a4.
]lO Jbid. 104 al.
166 Spinoza and Law

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.

III Jbid. 104 a4.

112 Jbid.
113 1bid. la llae. 95 a2.
114 1bid. ad3; 104 a3 adl; lla llae, 87 al; supp!. 41 al ad3.
115 Spinoza, Political Treatise IV, § 4.
116 Jbid. § 5.
117 Jbid. § 4.
 Spinoza and Law 167

- If we take into account the existence of sanctions to the non-observance of naturallaws,

we find in both authors the idea of an immanent (natural) penalty - the idea of a sanction to
violations ofnaturallaw.
In Saint Thomas, once a being violates the naturallaws, his ends become compromised.
Consequently, he demeans himself. There is no penalty exterior to the act. Whoever escapes
the natural laws ends up straying from the right path. Natural laws do not resemble extrinsic
criminal rules. Those who stray from the path of the good are not punished by an external
device - their penalty is their downfall, and vi ce versa. We can say of Saint Thomas's theory,
in Spinozistic language, that the punishment ofthe disordered is disorder.
'The wicked are subject to the eternallaw, imperfectly as to their actions, indeed, since both
their knowledge of good, and their inclination thereto, are imperfect; but this imperfection on
the part of action is supplied on the part ofpassion, in so far as they suffer what the eternallaw
decrees concerning them, according as they fail to act in harmony with that law.'118
Similarly, Spinoza thinks of penalties in the same terms as he thinks of iIInesses. If the
political body deviates from its nature, the penalty is deviation; it diminishes its own power
and it increases its dependency on foreign causes. 'In so far, then, as it acts contrary to
reason, it falls short ofits own self.'119 By identifying the penalty with the transgression, both
theories outline the order ofthings in a way that makes it impossible for anybody to escape
it. Transgressors suffer from their own transgressions. That is the reasoning behind the moral
thoughts that reduce the heteronomy of sanctions: they turn all individuals into the makers of
their own misfortune in accordance with a measure set by the nature ofthings.

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

Qualifying the nature of normative phenomena has always been a

ehallenge for naturalist reductionism and it is his striet naturalism that
has traditionally been regarded as the main subversive element of
Spinoza's political philosophy: whatever may be unfolding in human
affairs is explainable in causal terms. That means, it should be traced
back to elementary passions, constitutive of human nature, modified by
external or interna I causes affecting the conatus in some or another way.
So, if there is nothing but causal relations between extended things on
one side and between ideas on the other side, how ean there be "law" as
a normative phenomenon and what does it mean to talk about "law"?
However, Spinoza does introduee a concept of "law," and he seems to
be using it in a normative sense. Ht: may indt:ed be the first modern
philosopher to clearly face the problem of having to explain what a
legal order could possibly be when everything can (as far as our
scientific knowledge goes) and should (in order to make sense) be
explained in strict1y causal tenns, then law is nothing but amental state,
but if law is nothing but amental state, then it is precisely not what it
stands for and there cannot be something like legal validity, let alone
any such thing as legal reasoning. In addressing this problem, one has
to show how Spinoza envisages the development of political societies
(I), whether and in which way legal matters are analyzed as such (Il),
and whether Spinoza's position concerning the specificity of
normativity provides a plausible solution (III).

1. STRICT REnUCTIONISM

The main difficulty for a philosophieal theory concerned with

ethics and politics consists in explaining the nature and evolution of
such complex phenomena like politically organized societies, and
Spinoza's projeet consists in providing a unified causal conception for
both individual and social development. This single explanatory
method yields a critique of both natural law theories and contractarian
constructions ofnormativity.
Two elements structure Spinoza's conception of social
170 Spinoza and Law

644 CARDOZO LAW REVIEW [Vol. 25:2

organization: causality and modality.

He understands causality, as has often bcen noted, in a strictly
efficient model and it is this mode of explanation which unveils the
perfeetly mythical and therefore irrational character of finalist
arguments widespread in philosophieal tradition. 2 And as causality is
strictly deterministic, Spinoza's ontology leaves no room tor any
modality other than strict neeessity.3 This excludes evidently any
"natural" normativity, as natural law theorists-or at least most of
them-would have it: normativity understood as that which drives
everything to its given telos is either an illusion of imagination or a
meaningless concept.4 It even excludes any counterfactual reasoning as
things simply cannot be otberwise than they effectively are. lt may be
that we are moved, while thinking that we could have done otherwise,
but in fact, if we move, we are moved, and then we can't do anything
about it, even though we may experience the sensation that something
else could have happened. And if we think that an action should be
done, while it may or may not be realized, or that it is prohibited,
although it may eventually be performed, then this is saying something
deprived of any clear signification. Naturallaw theories are not theories
that could explain anything, they are themselves phenomena to be
explained. More generally: any conception which is not itself a true and
adequate causal explanation of an event in the only actual uni verse has
to be reduced and analyzed until the causal chain of events leading to
this phenomenon is clearly identified.
This bears an important consequence. Strict causality excludes
normativity at any level, individual and collective, "natural" and
artificial. Spinozistie cthics has nothing to do with morality, and
spinozistic "law" has nothing to do with law. Under thc premises just
mentioned, the fundamental cxplanatory datum for each set of
rnodifications of the Substance is potentia, i.c. its surn of causa! action
(and each set of modifieations ncccssarily exercises causal action). It is

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

2003] SPINOZA 'S NA TURALISM 645

a power in the sense that it is what effects changes in other sets of

modifications, and for each "thing" its potentia exhausts what it is
actually able to perform. As this is a stricdy general proposition, it
excludes any form of modal superadditivity. Any complex phenomena
are nothing but an aggregate of potentiae or, in other words nothing can
generate a surplus yielding purely potential events such as those
supposed in normative statements. Complexity, to state it otherwise, is
always complexity in causality and causation, it never produces
alternative universes or purely possible worlds.
It follows that explaining the emergence of Law and State in the
perspective of strict causal relations means to show how political power
develops along the lines of social interactions pushed by the
mechanisms of passions. The main element, as we remember, is the
couple offear and hope5 related to common utility.6 Fear and hope bring
human beings together, it is what conducts them to give up their
individual right in favor of common institutions granted with supreme
power.
Besides passions, there seems to be another element of
explanation. Indeed, Spinoza's reconstruction draws on contractarian
concepts, especially in the second Scholium to the 37th Proposition of
Part IV, where he distinguishes state of nature and civic state. But his
conception differs radically from his c1assical models, as the "law" and
power of a political society ("Civitas") is deLermined by Lhreat (minis)
which does not admit of any normative discontinuity between the two
states, whereas the conception of Grotius or Hobbes rests on a strict
legal distinction of what is authorized and forbidden before and after the
Covenant has been sealed. Indeed, there is both in the c1assical model
as in Spinoza' s conception no normative restrietion to liberty prior to
the social contract, while the contract once signed, only the so
legitimated authority may state what is right or wrong in society. In
Spinoza's conception, freedom is equal to individual potentia in the
state of nature and value judgrnents do just express the individual's
conception of utility. If, by contrast, the State (Civitas) has indeed a
monopoly in value judgments and commands as soon as it exists, the
difference with the contractarian construction consists in the fact that
this monopoly is strictly conditioned by consensus, in other words the
momentary accordance of the individuals in joining their efforts in order

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

646 CARDOZO LA W REVIEW [Vol. 25:2

to preserve their existence and well-being. In terms of strict causality,

"right" means therefore precisely power, that is, the sum total of effects
that a set ofmodifications ofthe substance (where "substance" has to be
taken in the sense of book I of the Ethics) can produce at a given
moment in time. Utility is not only a necessary, it is a permanently
necessary condition of a social consensus. Whereas the contractarian
aims at showing strict discontinuity between individual and collective
decision-making some hyperpotentia could possibly emerge out of a
complex assemblage of potentiae, but how we, deluded by ignorance
and imagination, conceive of such complex causal relations as bearing
an added value of power such that the members of the political
community feel constrained to act in a certain way without the sum of
potentiae producing such a constraint we have to show. This
construction yields important consequences as against the background
of theories as different as those of Hobbes or Grotius. A supreme
power is not supreme in and of itself nor does it become so in virtue of a
social contract-as this would again presuppose the existcnce of same
intrinsic normative validity of agreements-but only in so far and as
long as such apower keeps the means to really produce effects wh ich
others are not able to produce. Power is momentary, dependent that is
at every moment on the aggregation ofthe powers of a11 members ofthe
society to join in the decision it takes. Polities are nothing but such
precarious power relations and it is only for the sake of brevity that we
may call them "State."
Traditionally, the limits of such apower were discussed as a
problem oflegitimacy or conformity to a moral standard.7 The subject is
due to obey and the prince retains authority as lang as it is exercised in
the interest of the people or in view of the common good or as lang as
he respects so me divine commands or some rational naturallaw8 . This
and similar accounts would attribute a causal force to samething which

7 As Thomas Aquinas sums il up in De regimine principum: "conlingit autem in quibusdam,

quae ordinantur ad finem, et recte, et nonrecte procedere. quare et in regimine multitudiniset
rectum, el non rectum invenitur. recte autem dirigitur unumquodquequando ad finem
convenientem deducitur; non recte autem quando ad finem nonconvenientem." See J. Miethke,
Die Legitimität der politischen Ordnung im Spätmittelalter: Theorien des frühen 14. Jahrhunderts
(Aegidius Romanus, Johannes Quidort, Wilhelm von Ockbam, in B. MOJSISCH, O. PLUTA,
HISTORIA PHILOSOPHIAE MEDU AEV!. FESTSCHRIFT FÜR KURT FLASCH ZUM 60. Geburtstag, vol.
2, Amsterdam 1992, pp. 643-74. MARIO TURCHETTI, TYRANNIE ET TYRANNICIDE DE
L' ANTIQUlTE A NOS JOURS, Paris Presses universitaires de France 2001.
8 Whether and to what cxtent the lack of legitimacy justifies revolt and a change of regime is
of course a highly debated topic in polilical philosophy. The position of Thomas Aquinas in De
regimine principum illustrates an intcresting ambiguity: while the Christian rule rcquests that one
supports even the most dire tyrannies (liber I, cap. 7), the deviation from the public good appears
to be the worst when power is in the hands of only one individual and in such cases a reign can
never last for long (Iiber I, cap. 11 "non potest igitur tyranni dominium esse diutumum"). Evcn
though there may be no right to resistance, unjust exercise of power enlails resistance as a factual
consequence.
 Spinoza and Law 173

2003] SP1NOZA 'S NATURAL/SM 647

does exist as actual potentia and which mainly consists in projections

from imagination. Hobbes seems to take an ambiguous position still
marked by the Aristotelian tradition, as he maintains, or so one may
contend, that the principle of establishing a Commonwealth is itself an
element of Natural law driving us to leave the state of nature,9 while
offering on the other side an alternative, and, as it seems, a naturalistic
ac count of the limit of sovereign power as the state of nature reappears
whenever the sovereign becomes unable to guarantee decent survivapo.
A spinozistic explanation is constrained to show, that, whatever the
State may be, it cannot be anything else but a particular configuration of
passions, such that, if that particular structure ceases to exist, the State
disappears. Normativity so understood is nothing but actual power and
the state's as any normativity whatsoever is nothing but such a
contingent structure, dependant, that is, upon the actual fluctuations of
fear and hope which the machinery ofpolitical power effectively causes
to be.
It may be, and it mostly is the casc that we lack sufficient
information concerning this underlying structure, but if we had-and in
the model-theoretic reconstruction of the Ethics or the Tractatus
Politicus we clearly by hypothesis do have the relevant knowledge-we
could exactly explain which command, which rule, sterns from what set
of causes, and what sort of various consequences are induced in the
social context by its enactment. Analyzing law is nothing else, under
such ideal settings, but analyzing a set of interactions of passions on a
more or less large scale.
It is easy to see the radically subversive incidence of such a theory
which unravels any moml dignity which traditional philosophy may
have attributed to legal orders: As there is nothing good or bad in and
by itself in the universe because any part of the universe expresses the
unique substance or "God" or "nature," there is no good or bad legal
order cxccpt in the subjective perspective of this or that individuaL And
more strictly, however powerful the State may be, however impressive
and sophisticated the legal apparatus may appear, it has absolutely no
normative value or dignity in and of itself. There is no such thing and
there cannot be such a thing as a duty per se to obey the law and there is
not even such a thing as a legal duty to obey the law as law cannot
pretend to bear any more power than there is power in the underlying
structure. It may be that the "sovereign" has got hold of our poor

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

648 CARDOZO LAW REVIEW [Vol. 25:2

imagination, it may be that even truly intelligent people think there is

something to the legitimacy of at least certain fonns of political power
and its legal decrees. But not only is law deprived ofmorallegitimacy,
it is deprived of nonnativity in any interesting sense. Imperatives
fonnulated by an authority do not state that some action ought to be
done, because the grammatical fonn of deontic modality cannot
fonnulate any given event in nature, it just expresses the passions of the
individual who fonnulates it. But the expression of passions, however
sophisticated, cannot present any kind of normative validity. So what
can eventually happen is astate of collective beliefs.
Both the dismissal of natural nonnativity, which implies the
limitation to prescriptions set by a certain human authority aiming at
guiding human action, and the focus on eftective compliance may be
seen as elements of an encounter between Spinoza's construction and
modem variants of legal positivism. " This conclusion, however, would
be misleading for two closely related reasons. First, modem legal
positivism seems to be bound to the claim that no norm of whatever
kind, can be deduced in its specific validity from any state of affairs,
however accurately explained. It is natural nonnativity, not nonnativity
as such, whieh has to be rejected. We may very weil eapture the
reasons why this or that statute has been enacted by the "sovereign,"
why a judge or any other authority may have taken a particular decision,
but that can never be the foundation of its particular legal nature. As far
as positivism is eoncemed with norms enaeted by human authorities, it
is prima jacie excluded from a spinozistic analysis of "law" which has
no nonnative character. Second, if some variants of modem positivism
draw on the effectiveness of legal enactments, this still presupposes that
it could have been that there was no compliance with some particular
set of legal requirements, and the question is precisely which such
requirements among the possible candidates for compliance effectively
yield this result. This is what distinguishes Spinoza's law from even a
realist aeeount of legal phenomena: the legal realist is asking for what is
factually held to be law, not for the facts that determine human action.
Only where legal realism boils down to one or another variant of
reduetionism-power relations, psychological or sociological facts-
can one find a coincidence with a spinozistic coneeption of law, as law
in tenns of a normative order ceases to be a domain of autonomous
scientific investigation.

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.
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II. UNREDUCED NORMATIVITY

The strictly causal account seems however to be only one side of

the pieture. There are several features of Spinoza's theory which strict
psycho-sociological reductionism does not seem entirely to explain.
But if the theory does not entirely explain the law in terms of an
underlying structure, then either the whole reductionist project fails, at
least it fails in respect to law, or it may be that the interpretation in
terms of strict reductionism fails to grasp either Spinoza's project or the
theory he effectively develops. Therc are at least fivc elements which
cast doubt on the comprehensiveness of the reductionist model, but the
discussion of four hypotheses for analysing unreduced normativity
shows that alternative explanations are equally unconvincing.
First, if it is impossible for individuals in the state of nature to
transfer every power to the sovereign,12 then they evidently have the
ability to give up at least same of their powers, such that at least certain
competencies pertain henceforth to the sovereign alone. The exercise of
power by the sovereign is not just, as it were, deductible from the sum
total of individual passions, it has a dynamics of its own and follows its
own purposes. 13 Causal continuity seems not to exclude at least so me
normative autonomy.
Second, if the theory is strictly reductionist, then any variation in
the underlying structure must be strict1y replicated in thc manifest
structure. Thus, if there is any, even infinitesimal change in the
interaction of passions, then there must be a correspondent change in
the landscape of "law" and vice versa. But law seems to evolve in a
much slower way than the passions it expresses. On the other hand,
legal structures may be modified without psycho-social interactions
presenting a parallel shift. The constitution of the Jewish State is
heavily modified by Moses and afterwards, but it is only when the
balance of power between the interpreters and the administrators of the
law does not work anymore that the passions really cross a threshold
leading to a new situation. 14
But if changes are not strictly covariant, then the theory cannot be
strictly reductionist.
Third, Spinoza has to tackle the objection later developed by Hart

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.
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650 CARDOZO LA W REVIEW [Vol. 25:2

against Austin's command-theory.15 If there is a legal structure

expressing an underlying structure of passions, then if the sovereign
disappears, the structure would have to break down. Now it appears
that legal structures remain at least relatively stable, even though the
individuals entitled Lu power leave office ur disappear. Quite different
persons with quite different talents may exercise the same functions
without a significant change in the law, or in its application and
perception. Spinoza recognizes astability which makes legal systems
relatively independent from their factual environment.
Fourth, Spinoza's law bears at least some features of autonomy. If,
in the first Jewish State, the Levites are entitled to interpretation,16 then
this means that it is possible to say what a given general rule requires in
a particular instance or how such a particular case has to be seen in the
light of a given text. 17 Such an activity can not directly stern from a
particular mood. It may of course be influenced by various
considerations which are entirely out of purpose and in which the real
nature of the persons plays the dominant role. However, and even if
interpretation is biased, it has to be biased a certain way. It has to be
consistent with precedents and with certain methodological claims.
They may all be mi staken in a certain sense, but plain incoherence
would not be easily acceptable. The same is true of "administration" in
Spinoza's reconstruction of the first Jewish state. I take it to be the
application of the law by those who are not otherwise entitled to enact
new rules or to say in what the law exactly requests in cases not hitherto
settled. The very concept of such a function requires that it can be and
that it actually is applied equally over at least a certain time period.
True, problems seem to appear because it is precisely not the case
that both functions are correctly fulfilled in the long run. But this again
shows that people admit, even expect, that law should be equally
applied, without regard to changcs in persons and passions. For those
who join in a common exercise of their natural power and who accept
that certain organs exercise functions of law-making and law-applying,
it is not just sufficient that their momentous decision shall be a common
one; it Is an essential part of the setting that jus civiJe is something
autonomous with respect to the initial situation.
But fifth, not only has the law to be applied over time, it may have
to be changed according to new needs and situations. This requires a
further degrce of abstraction, as some rules conceming rule production
have to remain stable, whereas others may undergo certain
modifications. In the setting of the spinozistic State, there are

15 H.L.A. HART, THE CONCEPT OF LAW (2d ed. 1994).

16 TTP, eh. XVI1, p. 212.
17 " .•. vera ... interpretatio" (id.), tme interpretation is the condition of fortune and honor of
the Levites.
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representative bodies with deliberative power who are not just

expressing how they may conceive of their immediate utility, they have
to retlect on how common utility may be promoted by appropriate legal
enactments. 18 And doing this, they have furthennore to reflect on how
the new provisions may be applied by those empowered.
Sixth, we may even assume that spinozistic legal systems admit of
certain particularly entrenched rules where the law protects the exercise
of those activities, such as thought, which cannot be transferred to any
legal authority but may be treated in a repressive way by a legal
authority which is not bound not to interfere. AState or legal order is
less violent, the more it guarantees certain fundamental freedoms. 19 But
if it so does, and if this protection has to have some stability, tbis again
presupposes autonomy as against the momentary evolution of passions,
even of adequate ideas.
Contrary to the idea that law is nothing more tban the immediate
expression of a certain state structure of passion at a given moment, it
appears that legal rules may, at least to a certain extent, guide conduct
of complex social communities over a more or less important time
interval and it appears that such rules are taken to be independent from
the situation they were intended to express. 20 Legal nonns are
autonomous, as it were, with respect to time and causal structures. How
can one account for this contrast and explain legal validity in spinozistic
tenns?
1) One could argue that law is simply not the focus of Spinoza's
quest. The subject matter of ethics is freedom through adequate
cognition. Life in accordance witb reason seeks to unite man and to
share as far as possible those rational conceptions with other
individuals. We have excellent reasons why we should indulge in such
a common enterprise as the State and we have equally good reasons to
comply with its commands as far as violating them brings us, ceteris
paribus , onIy back to the state of nature. The existence of law is
consistent with reason, but it does not follow that we have to explain it
as something persistent and autonomous. Wehave on the contrary to
show how politics are indeed linked to passions and knowledge, we
have to show how a commonwealth may bc corrupted or how it may
evolve to forms in which rationality and utility is better and better

18 See again, TTP, eh. XVII.

19 See the definition of a "violent Republie" in TTP, eh. xx. sub. in. and p. 245. Amsterdam
is presented as an example of aState, where freedom of speech is legally guaranteed, that is, is
made compatible with general compliance with the law.
20 This is again espeeially shown by the history ofthe Jewish State, as developed in TTP, eh.
XVI!. The lives of the Hebrews were "a eontinuous cult of obedience" (p. 216). The whole
system was aimed at stabilizing a pennanent habit of compliance with onee institnted rules thanks
to a complex and sophisticated division of labor between stating commands and interprcting
given nonns.
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served up to variant of a spinozistic democracy. These developments

can indeed be traced and analyzed with the reductionist approach.
From this perspective, legal problems are always viewed as ethical
problems. The question is not, whether this or that bill is valid, wh ether
and how it applies to a given case, whether and how, as a judge, I
should interpret this or that clause of a contract, whether freedom of
speech is a fundamental right which outweighs provisions conceming
the security of the State, but whether, given this or that concrete
command, it accords with reason to execute it. The act-utilitarian
perspective is maintained as any question has to be answered and is
indeed answerable when replaced in a concrete structural context.
Reasonable ethics is therefore realist politics and realist politics has as
its subject matter concrete situations where the normative is nothing but
a factual element of giving or maintaining a command.
If so, we can indeed understand how people use law as a discourse,
why they use it to pursue eertain aims, why we have reasons to comply
with this or that command, we have no means to conceive of law in an
autonomous, for short, in a legal perspective.
2) A second alternative could consist in legal context as part of a
holistic picture. We could abandon the strictly reductionist account and
say that legal enactrnent's are part of a whole. This allows for more
flexibility so that we can weigh the relevance of the fact that something
presents itself as a legal situation in the wider context of a given
situation bearing features pertaining to quite different ways of
expressing passions. We eould then eventually see law as something
which has its plain part in the puzzle, but it is absolutely not clear, then,
how this fits the general ontology. For if we take law to be something
of its own in the general evolution of passions and rationality, we admit
it as an element which explains, but we renounce the idea of explaining
it in terms of an underlying reality. Furthermore we introduce new sorts
of beings, where the whole spinozistic project tends precisely to
eliminate everything that is not explainable in tenns of modes of an
attribute (the two we know of, at least).
On striet spinozistic grounds, we have precisely to disregard
holism as a philosophieally relevant stance. The only way to save
flexibility in aecord with ontology and epistemology is to see law as
some sort of deficient knowledge.
3) The deficient knowledge model brings as baek from where we
started. We perceive nonns as if they had permanence and autonomy,
but in fact this only hides that we have not yet acquired a more genuine
and precise view of our real utility. We do deal with law: We make
contracts, we consider certain things as legally valuable and others as
legally bad, but this is so only because we are in a particular soeial and
political situation where such views are socially imposed on us and our
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compliance backed by fear or hope. If we were to take the view that

knowledge of law had its own dignity, we would, according to this
perspective, not only entertain but strengthen the illusion which hides
the deficiency. And doing this, we would, instead of progression
towards a still better use of reason, fall into a vicious circle where the
law is taken for some end which human nature would have to pursue for
its own sake.
4) Could we eventually try to restate Spinoza's view in terms of
supervenience?21 Supervenience supposes that for any set of relevant
properties MI, ... , Mn there are emergent properties EI, ... , En iff
there is no causal relation between any M and E and if and only if any E
is not a truth function of M and if and only if it is inconceivable that any
Mundergoes any modification without any M undergoing a
modification. Such models are often conveyed to explain morality
while admitting its causal independence. But that supposes that we
have independent evidence of the fact that there are indeed properties E
and that they vary as the relevant M properties do. Now, in spinozistic
terms this were nothing else but admitting the relevant Ms as having the
dignity of an attribute of the Substance for which we would have to
apply the model ofE 11,7, i.e. parallelism in causality. This is ofcourse
precisely one instance of deficient knowledge, because it would lead us
to consider law as the essence of the substance, which is of course
absurd.
It seems therefore that there is strict1y no place for law as
something autonomous and persistent and therefore no pi ace for legal
knowledge as rational knowledge of its own dignity and-non-
deficient-utility. But at the same time law is a social practice which
has, in Spinoza's political community, relative stability and autonomy.
Hence it seems difficult not to admit of a contradiction.

III. INSTRUMENTAL UTILITY

However, one may not entirely despair. Even though indeed

Spinoza's prior focus is not on legal matters as such, but on ethical
explanation of legal discourse and the use of imperatives in order to
achieve a common goal of action, law can be conceived of in several
ways and not a11 ofthem are reductionist.
The first view of law in Spinoza is of course a critical one, that is
the view that "Iaw" is not law, but it aims at showing the mechanisms of
abuse of beliefs and of power via the abuse of language. Legal

21 JAEGWOM KJM, SUPERVENJENCE AND MIND (1993); DAVID PAPINEAU, PHILOSOPHICAL

NATURALISM (1993); SIMON BLACKBURN, ESSAYS IN QUASI-REALISM ( 1993).
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provisions do not describe any metaphysical reality, nor do they tell us

anything about rationality in an ultimate and adequate sense. Complex
legal settings may hide quite simple and unobjectionable ethical truth.
But if we would have to state them, it would sound extremely banal and
deprive the authorities of their prestige. Second, it is important to see
the connections between the abuse of legal language and the abuse of
religious language. And large parts of the Tractatus Theologico-
Politiclls tend to show how this works in practice.
The second view is the utilitarian one. The social contract and its
legal consequences are useful and therefore rational on our difficult way
to happiness. But all such developments are to be analyzed in strictly
reductionist terms. Whatever the situation, it has to be examined in the
light of our overall utility, and not in terms of what legal theory would
sometimes call an inner point of view. And it is the dominant
spinozistic perspective. This is what research would really have to
pursue, if we were able to make further steps towards knowledge and
liberty.
This result prevents us from believing in the reality of ethical as
weil as legal norms. Prescriptive language is a manifestation of the
conatus and statements conceming prescriptive propositions are
instances of deficient knowledge as far as the utterer believes that there
really is something like obligation, prohibition or permission. But
insofar as we don't adherc to such beliefs, we may however state that
prescriptive statements have been uttered and that in certain cases they
do express a common utility or even that the very normative statements
are integrated into a whole centralized system does promote a certain
common utility which could not be done in the absence of such a
construction. The critical evaluation ofutility, individual or common, is
not affected by the shortcomings of direct uncritical prescriptive
language, be it at the object-level or at the meta-level. Norms are
fictions because they denote nothing directly real, but as fictions they
may be tools to orient conduct.
Doing this is not to see norms in a substantial perspective as if they
had a proper life or a metaphysical dignity. They are used as
counterfactual tools, as premises for future applications. Part of the
structure that we can call "social contract" is that we admit that without
stability we could not accomplish our way to a rationallife. So we can
assume in a stipulatory way that certain provisions have an instrumental
function as they immediately express the basic equilibrium. If the basic
idca is the protection of life, liberty and property (suum cuique tribuere)
and if it is expressed in the basic or fundamental provisions of the
covenant, and if the structure contains at least some basic organic
functions entitled to institute a ratio videndi, such a structure can serve
as a basis far further enactments and applications.
 Spinoza and Law 181

2003] SP/NOZA 'S NATURAL/SM 655

We can factually test whether the arrangement still holds or

whether it has become something completely different. We can
reflect-and we would if we could-whether the arrangement really
serves the purposes of reason. But the point is, that we can take the
arrangement as if it were something permanent of its own and that we
can deduce partieular eases from general mIes and analyze how
particular organs may introduce new mIes or take particular measures.
It is, in other words, possible, to produce something which could be
mistaken to be a normative order of its own, where it can only be used
as a construction of its own. Under these conditions, it can explained as
an arrangement of rules and it can be tested whether it is constructed in
a cohenint way.
What we have to bear in mind however, is that law as a
construction and as a discipline explaining its concrete content, is
specifically ancillary both to causal explanation and to utilitarian
projection. It is a construction where obligations, permissions, and
prohibitions exist as tools as far as the factual situation leaves sufficient
room for a common effort in enhancing utility. It is in this and only in
this cognitively identified universe that orders are issued, legislation
enacted and cases departed by judges. Nothing like this really exists, of
course, and one can raise the question why a rational person should
embark on such activities.
The only reason seems to be that the initial arrangement and its
concretizations do indeed express the capacity ofthe community to join
in a common effort and therefore to multiply their power to accede to
higher forms of luck and liberty. This means nothing else but that
though the initial arrangement hinges strictly on the real social forces
and their momentary passions, the range of possible evolutions may be
leading to more utility in so far as societies are considered as
normatively structured. Again in other words, it means, that law is a
tool to organize future actions on a collective scale. And if the stimulus
of collective efforts is fear and hope, then the main tool for a conscious
collective effort is law, that is, prescriptive discourse backed by
sanctions and compensations. It becomes a necessary tool for political
stability as long as we are not able to appreeiate our utility both at
individual and collective levels with suffieient seientifie method and
knowledge. Norms do not direct human conduct, they may be taken
instrumentally to meliorate the orientation of eonduct by default.
Lawmaking, law applying, law interpreting and legal scholarship
would be strictly deficient if taken for anything else but an
instrumentally and fictionally subservient exercise of working out
possible consequences of an assumed hypothesis as long as the balance
of conerete powers varies among the boundaries of equilibrium.
It is one of the main problems for modem positivism to precisely
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656 CARDOZO LAW REVIEW [Vol. 25:2

explain the relation between normativity and effectivity of a legal order.

Whereas "legal realism"22 tends to identify both, normativism tends on
the other side of the spectrum to disconnect them up at least to a certain
degreeP The spinozistic legal theorist takes a different stance. He
accepts the normativist's conception which analyses norms in their own
right as far as they are not taken to have any intrinsic value and as far as
they are to be valid only by stipulation. But contrary to both the realist
and the normativist, he does not back the theoretical investigation of
legal norms outside a concrete political (that is collective ethics) project
and a concrete political society. One can, of course, study the Hebrew
State of the antiquity, but this does not make sense outside the concrete
question of the place of freedom of speech and democratic organization
of the Dutch Republic in the seventies of the· seventeenth century.
Generalizations are certainly possible, but they don't convey any legal
knowledge, they are models which explain-eventually-the evolution
of societies as far as they use certain legal models in their political
organization, hence on the meta-leveL Again, the spinozist legal
scholar departs from modern variants of positivism as he assumes a
strictly naturalistic ethics of utility and admits legal reasoning and
constructionism only as strictly ancillary to such a conception.
Otherwise legal talk remains plain deficient knowledge.

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 GENERAL ANALYSIS OF LAW

Spinoza presents his fullest analysis of the concept of law in Chapter 4 of

the TTP, "On the divine law." He begins with what I will call his "general
account": "The word 'law' in an unqualified sense [absolute sumptuml sig-
nifies that, in accordance with which, each individual thing, or all or some

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

144 DONALD RUTHERFORD

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

3 G III 57123-26; trans. modified.

4 G III 57127-31; trans. modified. The phrase ab (or ex) horninurn placito presents difficulties. Literally
it means "at the pleasure of men," which is to say, as human beings decide it. The phrase appears
in medieval debates about whether linguistic meaning is determined by nature or by imposition.
See, e.g., Peter Abelard, Theologia ':,urnrni boni", III.35: "Priscianus, doctor et scriptor loquendi, in
locutionibus maxime usum emulandum esse admonet. Bene equidem, cum locutio significationem
non ex natura sed ex placito hominum habeat." For a full discussion, see Meier-Oeser, Die Spur des
Zeichens; Marenbon, The Philosophy 0/Peter AbelLlrd, pp. 176-184.
5 G III 57-58. The relativization of type-I laws to kinds or species may prompt concerns about the
status of such kinds in Spinoza's philosophy. The universallaws ofbody present no special problem,
since any body is a mode of the attribute of Extension (and similarly for universallaws of mind).
The "laws of human nature" are less easily explained, for Spinoza sometimes uses this phrase in a
way that does not refer (as it does here) to actions that follow necessarily ftom the nature of any
human being. I return to this point in seetion 2.
6 G III 58/4-6.
 Spinoza and Law 185

Spinoza S conception ollaw 145

a requirement would be an example of a type-lI law, which depends upon
a human decision and involves normative content. In contrast to type-I
laws, type-lI laws are practical or action-guiding. Their logical form is that
ofhypothetical imperatives: they dictate how one ought to act, for the sake
of a given end.
On the face of it, the account of type-lI laws comes dosest to captur-
ing our ordinary notion of law. Laws have normative content, and they
are action-guiding. Nevertheless, Spinoza holds that type-I laws are meta-
physically basic and represent the meaning of "law" in its strictest sense.
Given its dependence upon human decision, he says, a type-lI law is "more
properly called a decree [jus]."7 He acknowledges that this may appear to
reverse the correct order of understanding. The word "law" seems (videtur)
to be applied metaphorically to natural things. Commonly (communiter),
the word is understood to signifY nothing but "a command which men
may or may not follow, since a law constrains human powers within cer-
tain limits which they naturally exceed, and does not command anything
beyond their scope."8 Yet, for Spinoza, this notion of law is a secondary
one, which presupposes the more basic sense of law as the expression of a
natural necessity, or a regularity that follows necessarily from the nature or
definition of a thing. 9
Spinoza elaborates his analysis with a further set of observations about
how the idea oflaw commonly functions in political and religious contexts.
Taking the operative notion of law to be "a rule for living [ratio vivendi]
which a man prescribes to hirns elf or others for some purpose," legislators
are able (wisely, Spinoza says) to disengage the rule from its true purpose,
which is grasped by only a few, and to attach it to "another purpose very
different from the one which necessarily follows from the nature oflaws."10
Obedience to the law is now associated with reward and punishment by

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

an authority, as a result of which "the essence of law is taken to be a rule

of life prescribed to men by the command of another; and consequendy
those who obey the laws are said to live under law and are regarded as
subjects ofit."II Spinoza leaves no doubt that he regards this as a superficial
understanding of law. One who gives other individuals their due because
he is commanded to da so, and fears the consequences of disobedience,
cannot be called "just." That tide is reserved for the person who acts
in the required manner, "because he knows the true rationale of laws
and understands their necessity." Such apersan acts "steadfasdy [animo
constanti] and at his own and not another's command, and therefore is
deservedly called just [justuS]."12
Spinoza's critical remarks on the nation oflaw as the binding command
of a superior make it clear that he sees his own general account - involving
the postulation of both type-land type-lI laws - as a revisionary analysis.
The principal interpretive problem the account raises is understanding the
relationship between these two types of law. Spinoza's last example high-
lights the problem. The principle of justice - to give each person his
due - seems a prime example of a type-lI law: a normative principle that
is action-guiding. We know from Spinoza's analysis that this law is not
to be construed simply as the command of a superior (who possesses the
means to inflict punishment). As a type-lI law, the rule ofjustice is properly
regarded as a law that one prescribes to oneself and others, in order "ta live
more safely and more comfortably." Yet the details of Spinoza's account
remain underdeveloped. The just man perfarms the actions required of
hirn, "because he knows the true rationale of laws and understands their
necessity." This underlines the just person's grasp of the necessary connec-
tion between the practice of justice and the achievement of a safer and
more comfortable life. However, it leaves unaddressed the relation between
what the just person understands about the basis of type-lI laws and his

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

Spinoza S conception ollaw 147

determination (or motivation) to act in accordance with those laws. Fur-
thermore, in saying just this, we are no closer to explaining the dependence
I have claimed Spinoza assurnes of type-lI laws on type-I laws.
One thing we do know is that, even if Spinoza is committed to the
primacy of type-I laws as statements of metaphysical necessity, he does not
believe that we can dispense entirely with type-lI laws. This is an important
point, because it signals the way in which his philosophy reserves a place
for practical, normative laws that depend upon human volition. In TTP,
Chapter 4, Spinoza affirms his commitment to the thesis that "all things
are determined by the universallaws of nature to exist and act in a fixed
and determined manner.""3 Given this, type-I laws must be sufficient to
explain everything that happens in nature. Nevertheless, he insists that
there remains room for type-lI laws, and that they playa critical role in
human agency.
Spinoza credits the institution, and binding force (sanctio), of type-lI
laws to particular human decisions, as opposed to the nature of the mi nd
in general (or the "mind, so far as it perceives what is true or false")."4 Such
laws are not universal principles that can be deduced from the nature of
the human mind, but instead depend upon individual human beings pre-
scribing "rules for living" to themselves or others. Once decreed, these laws
offer significant practical advantages. Knowing that the world is governed
by universal necessary laws does not tell us how we should act in particular
situations. Such laws give no direction to our efforts to intervene in the
world, and they leave us ignorant of"the actual coordination and connect-
edness of things,""5 including the determination of our own power by the
power of other things. It is precisely in such circumstances that we are aided
by type-lI laws, which dictate necessary means to desired ends. When we
allow ourselves to be commanded by such laws, we in effect acknowledge
our ignorance about how things are "really ordered and connected. "16 We
take ourselves to be capable of bringing about the objects we desire by
bringing about the necessary means to them. The assumption that we can
do this may turn out to be mistaken, for other causes may block the efficacy
of our actions. Nevertheless, Spinoza observes that "it is better and indeed
necessary for the conduct of life, to regard things as possible."I7 This we
must do if we are to function as agents, despite its being true that all things

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.

2 THE NATURAL AND THE NORMATIVE

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

Spinoza S conception ollaw 149

The supreme law of nature lacks any prescriptive or normative content.

It asserts simply that, necessarily, in so far as each thing acts by its own
power, it acts in ways that contribute to its continued existence. One of
Spinoza's main goals in Chapter 16 is to argue that this law offers the basis
for a correct understanding of the notion of "natural right." Against those
who interpret natural right as an inherently normative concept, whose
application is limited to rational beings, Spinoza holds that the claims of
natural right are grounded in the necessity of the supreme law of nature,
as this applies to the actions of any individual whatsoever. Consequently,
the scope of any individual's natural right extends to all of the actions by
which it strives to persevere in existence, and not just those that are in
accord with reason:
Here we recognize no difference between human beings and other individual
things of nature, nor between those human beings who are endowed with reason
and others who do not know true reason, nor between fools or lunatics and the
sane. For whatever each thing does by the laws of its nature, that it does with
sovereign right, since it is acting as it was determined to by nature and can not do
otherwise. 21

Spinoza insists that the concept of natural right is to be understood as

grounded in a universal type-I law, the supreme law of nature. Conse-
quently, the concept offers no basis for distinguishing between human and
non-human individuals, or between humans who act rationally and those
who do not. "Each person's natural right," he says, "is determined not
by sound reason but by desire and power. For it is not the case that all
men are naturally determined to behave according to the rules and laws of
reason. "22 Again, he comments:
[A]s long as people are deemed to live under the government of nature alone, the
person who does not yet know reason or does not yet have ahabit of virtue, lives
by the laws of appetite alone with the same supreme right as he who directs his
life by the laws of reason. That is, just as a wise man [sapiens] has a sovereign right
to do all things that reason dictates, i.e., [he has] the right of living by the laws of
reason, so also the ignorant or intemperate person possesses the sovereign right to
[do] everything that des ire suggests, i.e., he has the right of living by the laws of
appetite. 23
The argument of Chapter 16 leans heavily on the idea that from the
point of view of the "government of nature" - the order determined by
nature's supreme law - all individuals are in exactly the same position: each
strives from its own power to persevere in existence, and its ability to do

strives from strives from

strives from strives
strivesfrom
from
190 Spinoza and Law

15° DONALD RUTHERFORD

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

Spinoza S conception ollaw

some clues in the analysis ofChapter 4. Most importantlywe have Spinoza's
description of type-11 laws as (I) hypothetical imperatives, which (2) depend
upon "human decision." The first of these features identifies the laws of
reason as expressing necessary means to a given end: a safer and more
comfortable life. Spinoza reinforces this point in saying that the laws of
human reason "aim only at the true interest and conservation ofhumans."
The standard account of hypothetical imperatives explains their force in
terms of their prescribing rationally necessary means to desired ends. Given
that I desire b, I ought to do a, because I know that a is necessary for the
production of b. If this is the right way to think of Spinoza's laws of reason,
then a satisfactory explanation of their normativity, or the sense in which
an agent is bound by these laws, must begin with an account of what makes
"a safer and more comfortable life" an end for uso
One possible explanation of this being an end for us is that it is some-
thing any human being necessarily desires. According to the supreme law
of nature, any individual strives, so far as it can, to persevere in existence.
Hence, any human being must have as an end the preservation of her
life, and the laws of reason are binding on her because they express nec-
essary means to that end. 27 This response, however, is unsatisfactory. The
ends Spinoza associates with the laws of reason are not limited to self-
preservation, and he makes it clear that individuals are able to persevere
in existence governed only by the laws of appetite. Indeed, he is adamant
that the supreme law of nature is a universal (type-I) law; it applies equally
in the case of individuals who live by the laws of appetite and individuals
who live by the laws of reason. Although the actions of the former are
often shortsighted and lead to effects that may, indirectly, precipitate their
demise, the appetites that motivate their actions are strivings to persevere in
existence, which in and of themselves cannot destroy their subject. Given
this, the supreme law of nature, which entails that we act only in ways that
are consistent with the preservation of our existence, offers no basis for the
end specific to the laws of reason. By Spinoza's admission, not all human
beings are bound by the laws of reason; yet all human beings (and all other
individuals) are determined to act in accordance with the supreme law of
nature.
Spinoza associates the laws of reason with the pursuit of our "true
interest," that is, a safer and more comfortable life - an end that is aspired
to by some, but not all , human beings. In elucidating this point we are
aided by his statement that an end is nothing more than "a human appetite

27 Curley, "Spinoza's Moral Philosophy," pp. 371-372.

192 Spinoza and Law

DONALD RUTHERFORD

in so far as it is considered as a principle, or primary cause of same thing."28

Strictly speaking, the ends that are identified with the "true interests" of
human beings are ends only for those who, in fact, desire to lead a safer
and more comfortable life. Plausibly, we may suppose that many human
beings da desire such a life, and that this des ire occupies a central place in
their motivational set. Nevertheless, Spinoza accepts that if anyone were to
lack this desire, then the pursuit of such a life would not be an end for that
person, and the laws of reason would not be binding on him. Individuals
motivated solely by momentary impulses of appetite, he writes, are "no
more bound [tenentur] to live by the laws of asound mi nd than a cat is by
the laws of a lion's nature."29
If the laws of reason are correctly construed as type-lI laws, then they
depend, in Spinoza's words, on "human decision" (ab hominum placito).
The phrase ab hominum placito highlights the point that the existence
of such laws does not follow from general facts abour human nature bur
depends in addition upon an agent's being willing to limit her actions
to those specified by the law: actions that are necessary means to a safer
and more comfortable life. Spinoza recognizes that even if agents have the
desire to live more safely and comfortably, there is no necessity that they
will limit their actions in ways that are effective in realizing this end. He
is especially concerned with the scenario (made famous by Hobbes) in
which individuals are faced with the choice of giving up "the right they
received from nature" - their natural right to all things - and committing
themselves to "a particular rule of life" (certae rationi vivendi),3 0 based on
the authority of civillaw. His conclusion is that the commitment ofhuman
beings to live in this way - the way that is rational given the desire for a
safer and better life - cannot be derived from human nature alone. That
is, it is not a universal necessary truth (a type-I law) that human beings act
in this way. Instead, "the binding force [sanctionem] of these laws can best
be said to depend upon human decision."3 1
Given Spinoza's unconditional rejection of freedom of the will, we know
that the decision leading to the prescription of law to oneself or others
should not be construed as a voluntary act that requires an agent's inde-
pendence from the causal order of nature. On the contrary, any prescription
of law, and an agent's willingness to comply with that law, must be under-
stood as the product of desires that are themselves fully determined within

28 E4pref.; G II 2°7/3-5. 29 G III 19°/22-23; trans. modified.

JO G III 58/4-6. J' G III 581r3-15; trans. modified.
 Spinoza and Law 193

Spinoza S conception o[law 153

the order of natureY To prescribe a law commandingp (e.g., "Give each
person their due") can mean only that one consistently desires that p be
done. If this is so, then we find at least one sense in which type-lI laws
in general are sub ordinate to type-I laws. Although the former do not
follow necessarily from human nature, holding without exception of all
human beings, their prescription is explained by additionallaw-governed
facts abour the motivations of particular agents. Some agents are so con-
stitured as to prescribe limits on their own and others' actions for the sake
of a safer and more comfortable life; others are not. In principle, these
are facts that could be known about agents, given a sufficiently detailed
knowledge of their mental states and the laws of human psychology. In
practice, Spinoza sees such knowledge of how things are "really ordered
and connected" as falling outside our comprehension. Nevertheless, the
decisions on which type-lI laws depend are events that occur in a fixed and
determinate manner, in accordance with type-I laws.
Spinoza, like Hobbes, is pessimistic abour the natural capacity ofhuman
beings to regulate their actions in accordance with their "true interests."33
For this reason, the political framework of the state is necessary, in order that
at least some semblance of those interests be realized. Desiring a safer and
more comfortable life, and fearing the consequences of remaining in the
state of nature, individuals can be induced to cede their natural right and
accept the authority of the state. Thereafter, they live under laws dictated
by the state, laws which they obey not because they recognize the necessary
connection between the rule of law and their long-term well-being, but
because they fear the punishment that is threatened for disobedience of
civillaw.
In Spinoza's view, the person who lives law[ully does more than this.
Such a person prescribes a rule of living to hirnself for the sake of a safer
and more comfortable life. In this case, Spinoza believes, the lawgiver must
comprehend the connection between the end and the means, and des ire
the means because of the perceived necessity of the law. Describing the
person who lives by the rule of justice, he writes: "he who gives other
men what is due to them because he knows the true rationale of laws

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

154 DONALD RUTHERFORD

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

14 G III 591r3-16; trans. modified.

35 "Dictates of reason" is Spinoza's preferred usage in the Ethics. See, eg., E4pI8s; E4P35d; E4P37d;
E4P50d ,md c; E4P54S; E4p62; E4p67d.
36 See E4pI8s; and E4P35d: "Therefore, human beings, insofar as they live by the guidance of reason
necessarily do those things only which are necessarily good for human nature [humanae naturael,
and consequently for each human being, that is (by P3IC), which agree with the nature of any
human being" (G II 233/r4; trans. modified).
 Spinoza and Law 195

Spinoza S conception ollaw 155

she is rational, simply acts in the way that reason determines her to act,
knowing reflectively that such action is conducive to her well-being.
On this way of interpreting Spinoza, the laws or dictates of reason
are most fundamentally understood not as normative propositions but as
statements of causal necessity.37 As Spinoza emphasizes in the Ethics, we
do not strive to understand things, or to act virtuously, for the sake of any
other end. Rather, we act in this way, because we are determined to do so,
by virtue of our own power, or striving to persevere in existence. 38 From
this perspective, the laws of reason match Spinoza's description of type-I
laws: laws that "necessarily follow from the very nature or definition of a
thing."39 The laws of reason specify actions that necessarily follow from
the nature of reason. They do not express merely how any rational agent
ought to act, but how any agent must act, in so far as she is determined by
reason.
In fact, we can go further than this. For Spinoza, the power of reason,
or understanding, is the inherent power of the human mind: the power
that the mi nd exerts by itself and which defines its striving for existence,
independently of the influence of external things. 40 Thus, the laws of
reason are, in asense, type-I laws of the human mind: laws that describe
necessary patterns of activity of the mind, in so far as it acts from its own
intrinsic power. With this we can bring darity to what I earlier described as a
systematic ambiguity in Spinoza's use of the phrase "laws ofhuman nature."
In one sense, the laws of reason are indeed type-I laws of human nature,
because they describe the lawful effects that follow from the power intrinsic
to the mind: the power of understanding. In another sense, however, the
laws of reason are not laws of human nature, because they do not hold
universally of human actions, conceived as determinations of the mind's
power. This is because in most situations human beings think and feel in
ways that are determined not (just) by the mind's own power of acting, but
by the effects of extern al things on the mind. Consequently, their actions
cannot be explained by the laws of reason alone.
Ir is under this circumstance that we can best make sense of the laws
of reason as type-lI, prescriptive laws. Human beings are, without excep-
tion, imperfectly rational agents, who only rarely, in Spinoza's view, are

37 I defend this conclusion in Rutherford, "Spinoza and the Dictates of Reason."

)8 E4Pp21-26. 39 G III 57128 .
4° See E4P59d: "Acting from reason is nothing but doing those things which follow from the necessity
of our nature, considered in itself alone (by HIP3 and D2)" (G II 254lr5-17); and E4P35c2: "For the
more each one seeks his own advantage, and strives to preserve himself, the more he is endowed
with virtue (by P20), or what is the same (by D8), the greater is his power of acting according to
the laws of his own nature, i.e. (by HIP3), of living from the guidance of reason" (G II 233127-32).
196 Spinoza and Law

196 DONALD RUTHERFORD

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

Spinoza develops his general account of law in Chapter 4 as a prelude to

addressing the topic of divine law. Traditional views of divine law equate
it with the ward, dictate, or command of a sovereign being, who rules
over humans with the power and authority of an absolute monarch. God
commands humans to act in specific ways, and holds them responsible
for their actions, rewarding obedience and punishing disobedience. In this
way, God demonstrates his justice, by ruling humanity according to law,
as weH as his mercy, in forgiving and reconciling to hirn those who violate
his commands.
Spinoza regards such views as deeply confused: "God is described as a
legislator or a prince, and as just, merciful etc., only because of the limited
understanding of the common people and their lack of knowledge. "4I He
aHows that there is a sense in which the Hebrew people received through

strives from
 Spinoza and Law 197

Spinoza S conception ollaw 157

Moses a revelation of divine law, and that by virtue of their reception of this
law they can be described as "chosen" by GodY Nevertheless, Spinoza's
interpretation of these traditional beliefs casts them in a very different light
than they are usually seen. To speak of God revealing his will through
prophecy is to express oneself on the basis of a "childish understanding"
(puerili captu)43 of God. 44 The sense in which the Hebrew people have
been chosen relates neither to their superior wisdom nor their superior
virtue. With respect to the former, their comprehension of reality, "they
had entirely commonplace notions of God and nature"; with respect to
the latter, the attainmen t of "true life" (verae vitae), they were "on the same
footing as other nations and very few were chosen."45
The Hebrew people can be regarded as "chosen" in one sense only: the
success and prosperity of the commonwealth built upon their (confused)
understanding of divine law. In this they were aided partly by fortune -
external causes that favored their collective survival- and partly by the law
which commanded their obedience in ways that contributed to the security
and prosperity of their state. For this reason, Spinoza insists, the laws pro-
pounded in the Hebrew Bible cannot be understood as universal dictates,
binding on all human beings. They are laws "revealed and prescribed only
to the Jews; for since God chose them alone to form a particular common-
wealth and state, they had necessarily to have unique laws as well."4 6 In
sum, what the Hebrew people have taken as divine law is no more than
a specific sort of human law, which they have falsely construed as being
directly authorized by God. 47 As human law, the law of the Bible has been

42 G III 45. 43 G III 45124.

44 In Chapter I, Spinoza defines "prophecy or revelation" as "certain knowledge about something
revealed to men by God" (G III 1515-6). In the most general sense even natural knowledge can
be called "prophecy," for "what we know by the natural light of reason depends on knowledge
of God and his eternal decrees alone" (G III 151r8-20). AB conveyed by the Bible, prophecy is
knowledge revealed by God to men that "exceeds the limits of natural knowledge," and hence is
not known through reason. Such knowledge is revealed in words or images, which are "either true
and independent of the imagination of the prophet who heard or saw them, or else imaginary, that
is the prophet's imagination, even when he was awake, was so disposed that it seemed to hirn that
he was clearly hearing words or seeing something" (G III 17/n-15). In either case, Spinoza conceives
of these as natural events (whether or not they can be fully understood by us) (G III 28/n-14).
45 G III 4812-6.
46 G III 48124-28.
47 This extends to all "ceremonial laws," governing diet, sacrifices, and feast-days, and morality
propounded as a system of requirements on action, reinforced by the threat of punishment. It
is certain, Spinoza writes in Chapter 5, that these "do not belong to the divine law and hence
contribute nothing to blessedness [beatitudineml and virtue. They are relevant only to the election
of the Hebrews, that is ... only to the temporal happiness of the body and the peace of the state, and
therefore could have relevance only as long as that state survived" (G III 69/n-16; trans. modified).
"Although these Five Books contain much about morality as weil as ceremonies, morality is not to
198 Spinoza and Law

196 DONALD RUTHERFORD

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

Spinoza S conception ollaw 159

nothing other than the very action and order of nature."5 0 God acts neces-
sarily, or in accordance with law, and since "the power of nature is the very
power of God,"51 the laws of nature and divine law are one and the same. In
Chapter 6, Spinoza stresses this point repeatedly:
Since we know that all things are determined and ordained by God, and that the
operations of nature follow from the essence of God, and the laws of nature are
the eternallaws and volitions of God, we must conclude, unconditionally, that we
get a fuller knowledge of God and God's will as we acquire a fuller knowledge of
natural things. 52
There is a legitimate sense, then, in which divine law can be equated with
the universallaws of nature - laws that govern all things everywhere in an
inviolable manner. On this construal, divine law is represented as a type-I
law: a law that "necessarily follows from the very nature or definition of
a thing" - that thing being God hirnself. Ai> Spinoza later expresses the
view in the Ethics: "all things that happen, happen only through the laws
of God's infinite nature."53
Yet this is not the only conception of divine law that Spinoza defends. In
Chapter 4, he expands his account of type-lI laws to include both human
law and divine law:
Since law, accordingly, is nothing other than a rule for living [ratio vivendiJ which
men prescribe to themselves or to others for a purpose, it seems it has to be divided
into human and divine. By human law I mean a rule for livingwhose only purpose
is to protect life and preserve the country. By divine law I mean the law which
looks only to the supreme good, that is, to the true knowledge and love of GOd. 54
The twofold distinction ofhuman and divine law tracks the broad structure
of Spinoza's Ethics (particularly the division between Parts 4 and 5) and
allows us to see more clearly the theoretical unity of that work. Spinoza
distinguishes divine and human law on the basis of their purpose, or end

jO G III 89 / 34-35. jI G III 189120.

j2 G III 85125-29. Spinoza makes the same point in Chapter 3: "the universallaws of nature according
to which all things happen and are determined, are nothing other than the eternal decrees of God
and always involve truth and necessity. Whether therefore we say that all things happen according
to the laws of nature, or are ordained by the edict and direction of God, we are saying the same
thing" (G II 46/r-6).
53 E1p15s; G II 60/IO-n. With this Spinoza neady turns the tables on the defender of miracles as
supernatural events: "If therefore something happened in nature which did not follow from its
laws, this would necessarily conflict with the order that God established in nature for ever by the
universallaws of nature; it would hence be contrary to nature and its laws and, consequendy, it
would make us doubt our faith in all things and lead us to atheism" (G III 86-87). On this sense
of divine law, see also E1PI7: "God acts from the laws of his nature alone, and is compelled by no
one."
54 G III 59121-26.
200 Spinoza and Law

160 DONALD RUTHERFORD

(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

Spinoza S conception oflaw r6r

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

162 DONALD RUTHERFORD

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

perfeet the intellect by seeking knowledge of God:

Perfecting the intellect is nothing but understanding God, his attributes, and his
actions, which follow from the necessity of his nature. So the ultimate end of
the man who is led by reason, that is, his highest desire, by which he strives to
moderate all the others, is that by which he is led to conceive adequately both
himself
hirnself and all things which can fall under his understanding.
understanding.7°
70

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

the common rules of nature according to which all things <necessatily>

<necessarily> happen. For love of God
is not obedience but a virtue necessatily
necessarily present in someone who rightly knows God" (G III 264).
The demonstration of this is given in E5P32C,
E5P32C.
66 (Gn 2671r5-17).
E4apP5 (Grr
67 For Spinoza, the relevant knowledge includes both knowledge of God qua substance (E4p28) and
knowledge of singulat
singular things in so far as
as they follow necessatily from God (E5p24; E5p27d).
necessarily ftom
68 E4p26. 69 E4p28d. 7° E4apP4.
 Spinoza and Law 203

oflaw
Spinoza Sconception 01 163

call - and know reflectively that to do so would be in our best interest.

Whether or not we answer the call of reason, we take ourselves to be
"commanded" or "bound" by divine law to act in ways that promote the
end of the knowledge and love of God.
Nothing in Spinoza's position commits hirn to the thesis that all human
beings are bound by divine law in this way. Those whose thoughts are
limited to confused representations of the imagination lack an adequate
conception of God and of the highest good; consequently, they are led by
the teachings of religion to believe that the force of divine law lies, for
example, in the threat of eternal punishment. Likewise, the "carnal man"
has a "barren" (jejunam) conception of God. He has no understanding of
the end of divine law, nor is bound by it, for he finds nothing in it "that
he can touch or eat or that makes any impression on the flesh in which
he takes so much pleasure."7 1 In Spinoza's view, only "those who know
that they possess nothing more excellent than understanding and asound
mind, will certainly judge that thought and reasoning are the most solid
realities." Because of this, they are naturally drawn to the highest good,
which "consists in philosophical reasoning alone and pure thought" (in
sofa speculatione, et pura mente consistit)J2 Knowing that the best part of
sola specufatione,
themselves is their intellect, they des
desire
ire to perfect it; and knowing that
the intellect is perfected through the knowledge of God, they desire this
knowledge above all else and love God for his own sake. This, in summary,
is the path Spinoza charts for his readers in the Ethics.

4 RECONCILING THE TWO CONCEPTIONS OF DIVINE LAW

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

164 DONALD RUTHERFORD

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

Spinoza Sconception oflaw

ollaw 16 5
living," identified with the content of divine lawn, is to live in whatever
way is conducive to the attainment of that end.
The command to live according to nature, or to pursue the highest
good in the knowledge and love of God, nominally takes the form of an
imperative that imposes a normative demand on a rational agent. We are
inclined to see it as a call that any human being ought to answer, but which
he can also choose to ignore. Yet a critic will observe that it is hard to
see how this sort of responsiveness to the normative demands of law can
be reconciled with the universal causal determination that follows from
Spinoza's defense of divine lawr.
lawI. If all is determined by the universallaws
of nature, how can human beings be accountable to the demands of divine
law?
It is here that we find the most radical aspect ofofSpinoza's
Spinoza's reinterpretation
of divine law. In the strictest sense, we are not accountable to anyone -
ourselves or God - for whether or not we respond to the apparent demands
of divine law. Our susceptibility in this regard is, Spinoza asserts, as much
a function of the necessary order of nature as any other action we perform.
Within this order, some are disposed to obey divine law and some are
disposed to live by the laws of appetite. Spinoza can frame his defense of
this point in theological terms as a recognition of the universality of God's
decrees: If God has decreed everything, then he has decreed how each of
us will respond to the demands of divine lawII. lawn. This, he suggests in TTP,
Chapter 3, is the correct way to understand the concept of divine election:
"given that nobody does anything except by the predetermined order of
nature, that is, by the eternal decree and direction of God, it follows that
no one chooses any way oflife [aliquam vivendi rationem]rationemJ for himself
hirns elf nor
brings anything about, except via the particular summons of God, who
chose this man in preference to others for this task or that way of oflife."75
life."75
While Spinoza endeavors to express his views in ways that will be intel-
ligible to adherents of orthodox religion, his underlying message is one in
which few believers can take comfort. Normative laws - type-lI laws that
include both human and divine law law- - are laws that human beings prescribe
to themselves. Yet "prescription," or the laying down of a law for oneself,
is an action that is determined by the causal order of nature. Whether one
is determined to follow a given "rule ofliving" is not ultimately
ultimatelywithin
within one's
power. What Spinoza can claim, and argues for at length in the Ethics, is
that there are objective reasons for believing that one will be better off -
more powerful and better able to sustain one's existence - if one lives

75 G III 461r7-22.
46/17-22.
206 Spinoza and Law

166 DONALD RUTHERFORD

according to the guidance of reason, or the demands of human and divine

ofhuman
law. But whether one can do that, is not something one can know in
advance of the attempt to do so.76
so.7 6

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

76 Compare Spinoza's response to to Henry Oldenburg in Ep. 75: "this

''this inevitable necessity of things does
not do away with either divine or human laws. For moral precepts, whether or not they receive
from God hirnself the form of command or law, are none the less divine and salutary, and whether
the good that follows from virtue and the divine love is bestowed on us by God as judge, or whether
it emanates from the necessity of the divine nature, it will not on that account be more or less
desirable, just as on the other hand, the evils that follow from wicked deeds and passions are not
less to be feared because they necessarily follow from them" (Letters, p. 337).
 Spinoza and Law 207

Spinoza Sconception oflaw

ollaw 167
prescribes to herself, as a means to a given end. His account of the lauer
latter sort
of law is a key innovation of the TTP, which illuminates central themes of
oflaw
the Ethics, particularly the role assigned to the "dictates of reason." These
I have argued are best understood not as sui generis normative principles,
but as principles of natural necessity grounded in the inherent power of
the human mind. The upshot of this reading is that, although Spinoza is
conscious of preserving the place of prescriptive principles in our lives, as
a condition of our agency, he is commiued
committed to explaining the normative
force of these principles in naturalistic terms: wherever there is a type-lI
which prescribes a particular course of action as being to our benefit, there
are type-I laws that explain why we find a given end valuable and why we
are (or are not) motivated to pursue what we are able to understand as
necessary means to that end.
 [12]
Laws of Nature
Andre Santos Campos

Spinoza's revolution in the realm of individuality does not simply

transform the way subjective natural rights should be regarded. In fact,
Spinoza makes dear
clear in his definitions concerning naturallaw that they
are mostly laws ofof nature, even though developed exclusively in indi-
usua11y attributed to the natural
viduality. These laws of Nature are not usually
rights tradition as their elements, since they are usually
usua11y regarded as
objective rather than subjective aspects. Ultimately, they represent a
new revolution in the early modern naturallaw framework.
The word 'laws' renders here the Latin leges rat her than jures. In this
sense of lex, traditionally, a 'law' can mean entirely different things:
far
for instance, a criterion for measure, the average in a statistical survey,
a structure's distinctive principle, or an obligation. When it concerns
Nature, it maintains its polysemy - in the natural sciences, depending
on what is formulated, it represents mostly the first three meanings; in
the natural law tradition, it represents mostly a deontological charac-
ter. Spinoza's definition of natural law as 'the laws or rules of Nature
in accardance
accordance with which all a11 things are made', however, when con-
textualized in a necessitarian deterministic all-inclusive
a11-inclusive conception of
forces hirn to reconstruct a new meaning for 'laws of Nature'
Nature, farces
without suppressing the above traditional uses altogether. In fact, a law
of Nature in Spinoza's naturallaw
natural law theory is not something univocal in
meaning. It can be either one thing ar or another according to the context
reality to
into which it is inserted and the expressive degree of Nature's reaIity
which it refers. And the same can be said of his use of the ward word 'rules',
which
wh ich he often mentions interchangeably with 'laws' in the context
of natural law ('rules aror laws' -- regulas seu leges [TP II/4]). What will
fo11owing pages is how Spinoza's wide conception of
be shown in the following
laws may include, beyond prescriptions and descriptions, a new kind of
210 Spinoza and Law

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.

Prescriptions and descriptions

The main distinction occurring in the laws' polysemy is between a
normative sense and a descriptive sense. This distinction shows how
different conceptions of Nature can be formulated in different ways.
The naturallaw tradition, insofar as it incorporates mainly a normative
sense for laws, seems to have an entirely different view of Nature from
the one adopted in those natural sciences that use a descriptive sense
for laws. The distinction goes far back to the classical debate in ancient
Greece between nomos and phusis, which the Sophists considered polar
terms - the former referred to social practices and conventions express-
ing relative views on justice, whereas the latter referred to universal
unchangeable nature. When the Stoics developed the first explicit prin-
ciples of naturallaw, however, the laws of Nature became what Nature
prescribed men to do in accordance with right
fight reason and justice - it was
simultaneously normative and natural. The just life, in this conceptual
framework, was the one lived in accordance with Nature. What made
it natural was the fact that it was grounded in human nature, which is
rational; and what made it normative was the fact that rationality pre-
scribed certain patterns of behaviour reflecting a common good, value,
or justice. And this seemed common to the entire natural law formal
tradition up until Spinoza. The underlying conception of Nature here is
one that includes universal conditions for determining wh what
at and how
certain human actions are possible, whereas the underlying conception
of Nature usually dealt with by the natural sciences is one that fore-
goes notions of justice and value and inc1udes
includes only the inventory of
those conditions that determine necessarily everything that exists and
happens.
The main distinction in the laws' polysemy, when referred to Nature,
also reflects different underlying conceptions of Nature. But insofar as
they are 'laws of Nature', they can also be called 'naturallaws', which
is why both expressions can be used interchangeably. Traditionally,
and also in common-sense language, laws have foremost a normative
meaning, as patterns of behaviour focusing on those entities capable of
rationality. They constitute then prescriptions - that is, formulations of
a positive value that is absent from aadefinition
definition of man, even though
it can be placed into his existential activity.l Normative laws always
 Spinoza and Law 211

Laws of Nature 55

seem to express an implicit theory of value. Thus,Thus, a man's character or

actions have value when measured by his conformity to the values for-
mulated in the prescription. Therefore, aaprescription
prescription is not merely the
affirmation of a positive value, but a requirement that man direct his
existence toward the value that is being affirmed. A prescription in this
sense is obligatory: it predicts a positive value to be fulfilled in given cir-
cumstances, but it also inc1udes
includes a 'command operator' demanding the
actual compliance with that value. The obligation or duty appears when a
mere
me re evaluative pronouncement is added with the basic characteristics
of a practical finality - that is what makes it normative, Le.
i.e. deontic. And
this is the laws' main conceptualization throughout history, whether
in the Hebrew Torah, in the Greek nomos, in the Roman lex, as weIl well
as in subsequent considerations on the nature of laws, whether Stoic,
Christian,
Christian, Scholastic, or early modern.
This does not imply that the laws of Nature have an exc1usively
exclusively deontic
formulation, or that natural law theories are only objectively norma-
tive. What it does imply is that, traditionaIly,
traditionally, most meanings attrib-
uted to laws are subaltern to the normative one, since they must have
at least one characteristic related to prescription in order to be called
laws. Hence, even natural necessity could be described by laws, albeit
only metaphoricaIly,
metaphorically, either because the natural inclination described
was 'the measure of the operation to which it induced, or because it
existed due to the Creator's law', in the words of Suarez (1971, Bk. I, 12)-
description was subaltern to prescription.
Description thus represented another important dimension in the
naturallaws' philosophical tradition. Deontology, in this second sub-
altern sense, gives way to a sort of scientific ontology. Laws constitute,
then, the expressive means through which essences are explained -
they are the description of being and of the coming about of being.
Consequently, not only are they not prior to being, they also do not
involve the requirement of a positive value to achieve them, since
value is no longer something to be aimed at but the very nature of the
thing described. Descriptive laws necessarily have no implicit theory of
Moreover, all phenomena considered as manifestations of being
value. Moreover,
in Nature are describable through such formulations, and not only
rational agents. This descriptive elaboration allows the understanding
of necessary connections in Nature and of concrete determinations in
all natural entities.
Both these meanings of laws - the prescriptive and the descriptive -
seem to appear in Spinoza's TTP in the opening of his chapter on the
nature of laws in general. At first glance, unlike what occurs traditionally,
traditionaIly,
212 Spinoza and Law

S6 Natural Law

there does not seem to be a pre-eminence of one meaning before the

other:

signities that, in accordance

The word law (lex) in an absolute sense signifies
with which,
wh ich, each individual thing, or all
a11 things, or all
a11 things of
the same kind, behave in one and the same fixed and determinate
way, depending upon either [vel] natural necessity or [vel] a human
decision. A law that depends upon natural necessity is one that
necessarily follows from the very nature or definition of a thing.
A law that depends upon a human decision, which wh ich is more prop-
erly called
ca11ed a decree (jus), is one that men prescribe to themselves
lite, or for other
and to others in order to achieve a better and safer life,
reasons. (TTP IV/57)

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:

It seems to be only by a metaphor that the word law (lex) seems to

be applied to natural things. What is ordinarily meant by a law is a
command which men may mayoror may not follow.
fo11ow. (TTP IV, G III/58)

At this point, there seems to be nothing original ab about a11.

out Spinoza at a1l.
Nevertheless, Spinoza says in this sentence that this subordination of
the descriptive to the prescriptive 'seems to be applied' [applicatum
videtur] 'ordinarily' [communiter], which
wh ich clearly indicates he is not actu-
a11y talking about the proper meaning or nature of laws, but rather only
ally
explaining the meaning most commonly attributed to them, that is, the
prescriptive. In fact, earlier on he had strengthened the ontic dimen-
sion of laws quite clearly:

a11 things are

And whilst [quamvis] I entirely [absolute] agree that a1l
determined by the universallaws of nature to exist and act in a fixed
and determined manner, I [still - tamen] insist that these decrees
depend on willed human decision. (TTP IV/57, G III/58)

Quamvis underlines Spinoza's predictions that these alternative mean-

ings might create suspicions in his readers, since the ontic dimen-
sion may ultimately surpass the importance of the deontic; absolute
 Spinoza and Law 213

Laws ofNature S7

emphasizes the unlimited and all-inclusive identity of the laws depend-

ing on Nature's necessity, therefore also applicable to man; and tarnen
suggests that Spinoza is not quite prepared to discard a deontological
perspective on laws, which is limited and exclusive and therefore only
applicable to apart of Nature. The laws' deontological dimension never
really suppresses their more important ontological dimension but rather
requires it, whereas the latter may be understood perfectly without even
mentioning the former. Hence, the alternative opening chapter IV of
the TTP is simply a semantic illusion, since the ontic is all-inclusive
and the deontic can be understood only as a (compatible) branch of
the ontic - in other words, laws depending on Nature's necessity take
precedence over all other meanings, and they also form the key to their
understanding.
u nderstanding. 2
Ultimately, a prescription's normative expression must be understood
in Spinoza within the general context of his natural necessitarianism,
and that is exactly what he strives to achieve in subsequent passages of
the TTP, completed by the Ethics' necessitarian ontology. Nonetheless,
this does not mean that Spinoza's revolutions with regard to the laws
of Nature in the context of natural law can be reduced to a promotion
of description before prescription. Spinoza will ultimately also claim
Nature.
that description does not fit into his conception of the laws of Nature.
In order to understand this, prescriptions must first be explained inside
Spinoza's necessitarianism; following this, the reasons why Spinoza's
necessitarian laws of Nature cannot simply be descriptive must be pre-
sented; only then can the actual meaning of Spinoza's laws of Nature
be understood.
understood .

The architecture of prescription

Spinoza shares with the traditional view on laws the perception that a
prescription is normative only when it expresses a certain measure of
demand, that is, when it is imperative. Nevertheless, this perception is
heterogeneous. Even before Spinoza there were at least two different
sources to the laws' imperativeness: will and reason. They constituted
the debate between legal voluntarism and legal intellectualism - expres-
sions introduced by legal historians in the nineteenth century. The
former claimed that the formal motivation supporting the requirement
of conformity to the laws is the explicit revelation issued as command
of someone's will in a position of authority - what Michael Oakeshott
will'3
referred to as a 'displacement of Reason in favour of will 13 (a displace-

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:

1. The etymological ongms

origins of the word 'prescription' involve two
qualities: that there is some sort of writing involved, and that there
is some idea of chronological antecedence. With regard to writing,
traditionally the etymological roots of the Latin word lex revealed
the requirement of a written disposition, which reflected the mys-
tical idea according to which prescriptive laws were always cast on
stone or metal in primitive times. 55 In the naturallaw tradition, how-
ever, there is no requirement for the actual physical writing of laws
in order for them to be effective - what matters is not so much that
they must be written down somewhere, but that they must be formu-
lated in a discursive communication with a pretence of permanence
in time. Simply put, prescriptions must be formulated in a language:
they are discursive notations. In addition, these notations must be
chronologically prior to something. This idea of antecedence intro-
duces a logical limit between two mutually differentiated planes,
and also a chronological limit between them. These planes are two
chronologicallimit
 Spinoza and Law 215

Laws of Nature S9
ofNature

different interpretations of order: one wholly intellectual and at

times discursive; the other wholly factual and phenomenological.
The precedence of one over the other is precisely what allows for
the idea of creation by a transcendent God. Prescriptive laws consti-
tute the notation of something Iogically different and subsequent.
This implies that aprescription
a prescription cannot be an assertion of itself,
itself} but
only the affirmation of something other than itself pertaining to
order} namely an order of actions and phenomena. A
a different order,
prescription}s discursive formulation precedes its substantial field
prescription's fjeld of
application - prescriptions rule mle for the future.
2. The sequential connection between the prescription and what is
logical} since the former is discursive
prescribed seems to be simply logical,
by nature whilst the latter is strictly factual. This implies that the
discursive} but pertains
order of what is prescribed is not necessarily discursive,
mostly to the world of phenomena. AAprescription's
prescription}s field of applica-
tion is not discursive,
discursive} but only
onIy translatable
transiatable by a prior discourse.
discourse. AA
prescription}s conte nt seems to be the prior representation of a fact in
prescription's
a discursive form.
form . This means that the sequential Iogielogic between the
two orders is highly limited precisely because it is based on a quali-
tative difference between a wholly intellectual order and a wholly
factual order. The difference is enough to discard causality from this
sequence. Since a prescription is the notation of something exterior
and subsequent from which whieh it differs in nature,
nature} it cannot cause that
which
whieh it predicts and rules.
mIes. Hence,
Hence} it is not causal of that which it
prescribes. If,
prescribes. If} therefore,
therefore} it is imperative not to eat the fruit from the
tree of knowledge of good and evil then the fact that Adam eats or
does not eat the fruit has other causes beyond prescription,
prescription} such as,as}
instance} fear of punishment,
for instance, punishment} respect or love for the lawmaker,
lawmaker}
Eve's
Eves persuasion,
persuasion} an intimate desire for the fruit,fmit} ete.
etc.
3. Since the limit between the prescription and the thing prescribed
imposes a difference of kind, kind} the prescription does not entail the
necessary existence of what is prescribed. The plane to which the pre-
scription points is not a subsequent mirror mirrar of everything included
induded
prescription}s contents. In general,
in the prescription's general} the prescription is self-
valuable,
valuable} Le.
i.e. it does not require the actual effectiveness of the thing
prescribed in order to be a prescriptive pronouncement
pranouncement - it can be
termed normative even if it is not complied within the subsequent
factual order. 6 Consequently,
Consequently} nothing of what is prescribed occurs
necessarily out of the mere formulation of the actual prescriptive law.
contrary} it might occur or not,
On the contrary, not} it might exist or not,
not} without
216 Spinoza and Law

60 Natural Law

endangering the very nature of the prescription. The qualitative limit

separating the prescription from the thing prescribed sets contingency
as the prescription's field of application - prescriptions rule for a world
of contingents. A prescriptive law requires observance and compli-
ance but it does not ensure the necessary observance or compliance.
Prescriptions can be observed, broken, or even bent. In deontic logic,Iogic,
this characteristic is usually called the 'principle
'principIe of precariousness'7.
4. What is prescribed must be able to (or made to) exist even if it does
not yet exist; and, if (and when) it exists or occurs, its cause must be
also something contingent. In other words, since the prescription
conceives what
wh at is prescribed as something to occur, it posits contin-
gent facts as possible. Sequential possibility is embedded also in the
nature of prescription - its contents consist in things and actions pos-
sible to perform. The impossible can never be aimed at by a deontic
formulation.
S.
5. A prescription is always an implicit evaluative statement or the
Aprescription
affirmation of a positive value, i.e. everything that is prescribed has
a positive value attributed by the prescription. This occurs equally in
prescriptions of conduct, regardless of their formulation of command
or prohibition (since both are discursive articulations of a good that
is either being imposed or protected), and in power-conferring pre-
scriptions (in which the implicit value is the actual competence to
create new rules). In this sense, a prescription has an intrinsic evalu-
ative positivity without which there is no reasonable foundation for
the deontic realm. Aprescription
A prescription is the antecedent affirmation of
a specific logic - it requires succession, which means that it is only
normatively valid (and valuable) if it predicts a subsequent positive
value. Therefore, the prescription values (and is valid) as a deontic
pronouncement only when it posits a certain prescribed value. This
means that it is always an affirmative valuation - even when it is for-
mulated in a negative formulation stating what wh at should not be done -
since it involves a notation of wh whatat is good and desirable for the
subsequent factual world: it is a sort of formulated doxa. 8 This judge-
mental quality constitutes the establishment of a good or value to
be followed.
6. Since the contingent fact predicted in the prescription is possible,
its exact opposite must also be possible and, if existent, might entail
the simultaneous absence of the prescribed good if both opposites
are logically contradictory. In order to diminish this feeble condi-
tion of the prescribed good, the normative prescription implicitly
negates the opposite of the posited contingent good. Consequently,
 Spinoza and Law 217

Laws ofNature 61

a prescription is also an implicit non-causal negation of the exact

opposite of the value that it posits - it contains the rejection of what
opposes the prescribed good. In other words, it rejects an evil, i.e.
Le. it
establishes that the exact opposite of the good or value to follow is to
be avoided.

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)

Prescriptive laws thus include the contingency of what

wh at is prescribed,
associated with its non-causality of facts ('men mayor may not follow'),
218 Spinoza and Law

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

(Elp33). God is the efficient cause of all

a11 things (Elp16c1)
(Elp16cl) and produces
them necessarily:

For nothing belongs to the nature of anything except what follows

from the necessity of the nature of the efficient cause. And whatever
follows from the necessity of the nature of the efficient cause hap-
pens necessarily. (E4pref)9

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

understanding is insufficient to comprehend the entire causal connec-

tion unfolding in Nature's productiveness and it represents things as
contingent and possible, such an understanding cannot be rational in
kind. Spinoza distinguishes between three progressive kinds of know-
ledge: the imagination, which feigns inadequate ideas; reason, wh ich
forms adequate ideas through wh at he calls common notions; and
intuitive science, which produces
pro duces adequate ideas from the viewpoint
of eternity (E2p40s2). Reason and intuitive science, insofar as they deal
exclusively with adequate ideas of Nature, always hold things to be
necessary (E2p44). If things are represented as contingent and possible,
this can only be a product of human imagination and of human pas-
sions, wh ich means that the covering of doubts will not be made with
which
the fabric of reason - for if reason were available to men at this point,
there would be no doubts to cover in the first place - but with the fab-
ric of the imagination. In our path toward understanding prescriptions
and their characteristics in Spinoza's philosophy, legal intellectualism
seems already to fade away.
Men who understand only through the imagination cannot compre-
hend the necessitarian causal nexus operating in Nature and hence they
wh at they
feign the notions of contingency and possibility to describe what
see taking place in the world of singular things and facts. Contingency
and possibility represent the presence of doubt with reference to the
natural causal nexus. And since doubt is the trademark of insecurity,
it can be suppressed only by inserting into the world of contingencies
and possibilities an idea of constancy imitating or reproducing the
same constancy found in causality - that is to say, by inserting into the
world some feigned idea of necessity. The fact remains that the world
of contingencies and possibilities in wh ich the imaginative man lives
which
is a world of unpredictable effects. For this man, anything can occur or
not occur, and this inconstancy entails insecurity. In order to overcome
this insecurity, man strives to transform what he knows as unpredict-
able into something predictable; that is, he tries to feign a sort of new
conception of as-if-causality
aS-if-causality that allows hirn to apprehend in a neces-
sary entailment some given effect yet to occur.
occur. This way, he looks at
an order opposed to unpredictability, one that precedes it: the order of
norms and prescriptive laws.
Prescriptions in this sense are mechanisms ordering (or organizing)
what
wh at seemed disordered (or disorganized), Le. they are structural pro-
nouncements affirming the certainty that each thing belongs to a given
place. By prescribing, they predict something. Nonetheless, since pre-
dictability is not by itseIf
itself the cause of something, prescriptions are not
222 Spinoza and Law

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

In his correspondence with Blyenbergh (Ep 18-24), Spinoza tries

hard to explain what he had written only superficially in chapter IV
of the TTP with regard to the fact that God's eternal truths cannot
have the form of commandments. For this, he makes use of the bib-
lical analogy of Adam and Eve in the Garden of Eden. For Spinoza,
God revealed to Adam the truths behind a necessary causal sequence:
that the preservation of bodily stability is something good for Adam
and any bodily instability is something bad for Adam; that there are
things in the Garden of Eden whose bodily constitution conflicts with
Adam's bodily constitution, which means that if Adam integrates them
into his body he will endure bodily instability; that the apple in the
tree of knowledge of good and evil is one of those things; and finally,
that if Adam integrates the apple in the tree of knowledge of good
and evil into his body he will necessarily end ure bodily instability,
and hence experience something bad for himP him. 12 However, Adam's con-
fused understanding and the 'deficiency of his knowledge' [defectum
 Spinoza and Law 223

Laws ofNature 67

cognitionis] (TTP IV/63) in his interpretation of God's revelations led

hirn to consider them as enactments by God of the necessity of not
perfarming something possible for hirn. This faulty interpretation
performing
of a descriptive causal connection in the farm form of a requirement of
necessity issuing 'from the pleasure and absolute command' of some
ruler (TTP IV/63) - in a sort of imaginative legal voluntarism - is con-
sidered by Spinoza very similar to the imaginative expressions of the
Prophets who did not understand the truth behind God's revelations.
That is why Spinoza says that those who understand how God's neces-
sity operates in self-productiveness - those he calls Philosophers - rise
'to a level beyond law' [supra legern] (Ep 19/810), that is, beyond pre-
scriptions, for they understand things rationally and do not require
imaginative artifices.
Traditional natural laws in the prescriptive sense are for far Spinoza
simply artifices induced by human passions and made by the human
imagination in order
arder to cover a lack of knowledge susceptible of causing
insecurity and despair. Men imagine they live in a world of contin-
gencies and possibilities, which are strong sources of insecurity, and
gendes
so they imagine requirements of necessity in order to bind themselves,
thus produdng
producing sodal
social security.B
securityP Spinoza's rupture with dualism and
theological transcendentalism entails that his 'God ar or Nature' cannot
be conceived as a lawmaker, wh which
ich means any sort
sart of natural volun-
tarism used to explain natural laws is out of the question. Likewise,
rational constructs have no room for far contingency and possibility, but
only for necessity and determinacy, which means any sort of natural
intellectualism cannot be formulated in a deontological fashion. Duties
are merely imaginative - their references to an authoritative will aror to
human reason are simply means through which wh ich the imagination justi-
fies its own making of imperativeness.

From prescription to inscription

Because they emerge through imaginative activity, Spinoza's prescrip-
tions do not seem to be adequate expressions of natural reality and are
therefore something like an alternative to the ontic realm. They are
not necessary for understanding the truth inherent to singular things.
Nevertheless, even though there is a disconnection between deontol-
ogy and natural reality, Spinoza is neither prepared to belittle deontic
expressions to the point of complete irrelevance, nor is he prepared to
sustain their suppression from human sOdality.
sociality. On the contrary, he
does not intend to erase the laws' deontological dimension from his
224 Spinoza and Law

68 Natural Law

system and he intends to explain it within the context of a wholly onto-

logicalorder
logical order of natural necessity.
Still, his attempt to harmonize ontological laws with deontological
laws becomes liable to David Hume's criticisms concerning the logical
gap between is-propositions and ought-propositions, according to which
the latter cannot be deduced from the former. However, regardless of
how reasonable Hume's observation actually is, there seems to be a
similarity between Spinoza and Hu~eHUII1:e on this matter. For Spinoza, pre-
scriptive laws, insofar as they are regarded as mere reflexive movements
of human imagination, are absent from the universe of necessary causes
and effects - they are not real elements per se endowed with ontological
density. There is neither coincidence nor logical entailment between
descriptive and prescriptive propositions, or vice-versa, as if is and ought
were both equally expressions of natural reality. But this does not mean
that prescriptive laws cannot be understood as productive processes of
things participating in that ontologically den dense
se natural universe, for
if the deontic realm is completely imaginative and the imagination is
something embedded in a real element of being (man), then man's real-
ity and existence entail a mediating need for prescriptions. The same
reasoning can be found in Hume's solution to his own is-ought problem:
ought statements are not simply diluted with natural reality but rather
evolve from natural reality, that is, from the sentimental and emotional
conditions of men, in which case one can even speak of morality.14
For Spinoza, imaginary representations of reality are confused, muti-
lated and based on inadequate knowledge.
knowledge. Nevertheless, they are still a
errar or fig-
kind of knowledge - they are not simply the assimilation of error
ures of falsity, but actually contain in themselves something truthful.
That is why it is not possible to find in rigorous terms a theory of error
in Spinoza's epistemology, since he always seems to speak of degrees of
knowledge and truth. If most men und understand
erstand the natural order only
through
thraugh the imagination and its prescriptive formulations,
formulations, they do it
not because they freely wish to but merely because they cannot under-
stand the natural order in some other way due to their present limita-
tions of knowledge.
Moreover, the imagination is the cognitive process through
thraugh which the
human soul understands the ideas of those bodies affecting the human
body as present. It is a representation that neither affirms anything of
those bodies' nature nor of their corresponding ideas (E2p17s). Such a
representation only ceases when someso me other affection leads the human
soul to consider the ideas of those exterior bodies as non-present, and
not when the human soul acquires a truthful (rational) knowledge of
 Spinoza and Law 225

Laws ofNature 69

those bodies' nature. Imagination is brought about not only by ignor-

ance concerning Nature's causal order but also by the experience of an
affection of the human body involving the essence of another body.
Spinoza uses Descartes's Sun-example to explain this argument: we
do not imagine the Sun so dose because we ignore its true distance,
but rat
rather
her because an affection in our body involves the essence of the
Sun in our experience with it (E2p35; E4pls). Whilst a human body is
affected by other bodies, the intellect
inte11ect represents the ideas of those bod-
ies in the form of images, which entails that human existence in dur-
ation is inconceivable without a minimum exercise of the imaginative
cognition.
Thus, even the wise man who 'rises to a level beyond law' and who
understands the causal connections in Nature's order does not eradi-
cate
ca te completely all
a11 the effects of the imagination in hirn. In the Sun-
example, the wise man's knowledge of the Sun's true distance is not
enough to eliminate the image of proximity, but only the error of con-
sidering that image truthful. The wise man knows how to deal with
these images and he understands adequately in which way they are
necessary. If most men were deprived of the imagination and of the
faculty to feign the deontic in order to suppress their misconceptions of
the ontie,
ontic, they would be slaves paralyzed with fear. They would be com-
pletely incapable of empowerment and of expressing God adequately
in their contacts with the exterior world. Spinoza's wise man acknow-
ledges this - not only does he not reject the need for prescriptions, he
also conceives it as the passionate man's need for the achievement of
safety, thereby recognizing its usefulness.
In Spinoza's words:

We are also ignorant of the actual co coordination

ordination and connectedness
of things, that is, of how things are really
rea11y ordered and connected,
and therefore it is better and indeed necessary [necesse] for the con-
duct of life, to regard things as possible [possibiles]. (TTP IV/58)

Prescriptions - mentioned here in the categories of contingency and

possibility - are effective means to overcome the pernicious effects of
the ignorance concerning the actual causal connection of things (it
is better to conceive them than to eradicate them). Moreover, they
are something inherent to the imaginative representation following
fo11owing
from men's affective condition (that is why it is necessary to conceive
them), which is a condition a11 men have in common by existen-
tial experience (and that is why practical purposes are mentioned).
226 Spinoza and Law

70 Natural Law

For though reason is common and accessible to a11, only so

some
me men actu-
ally know rationally,
a11y rationaIly, whereas affeetions
affections are necessary entailments of
men's mere durational existence. In the Ethics, Spinoza states clearly:
c1early:

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)

prescriptions [dogmata] is the best way of ensuring

The establishment of preseriptions
a good and eorreet
correct living [rectam vivendi] for those men not yet knowing
adequately their affects
affeets and still making an intensive reflexive use of
their imaginations. There is indeed a contrast between what one could
eall Spinoza's moral inte11eetualism
intellectualism and his coneeption of imaginative
prescriptions. However, prescriptions still seem to have an important
role to play in the ethical path from bondage to freedom, whether by
being helpful instruments for imaginative men to live in accordance
with reason (since the prescriptive image of what should be termed
necessary might reproduce in the imagination what reason affirms
to be necessary in Nature, which entails a difference between aeting acting
reasonably, i.e.
Le. induced by the imagination to do what reason deter-
neeessary, and acting
mines as necessary, aeting rationally,
rationaIlY' that is, induced
indueed by necessary
adequate ideas), or by establishing safe social eonditions for rational
men to progress in their intelleetualism without the constant threat of
those eonsumed by fear and terror.
Nevertheless, in the context of his moral philosophy, Spinoza's theor-
ies of value are mostly intelleetualist. And if justice is to be considered
one of those values due to the fact that it is usually one of, if not the
most important in normative moral traditions, then justice in Spinoza
cannot be fuHy
fully aehieved
achieved through obligations and duties. Spinoza is not
a deontologist, even though most of the naturallaw tradition is concep-
tually deontological. His prescriptions are not rea11y
tua11y really laws of Nature but
only inadequate human conceptions of Nature in compliance with the
actuallaws of Nature.
In the naturallaw tradition, prescriptions are mainly discursive char-
acterizations of what is inherently good - they are propositions iden-
tifying the good and the fixation of a given qualitative model to a11
men. The prescribed good is then termed justice and its exact opposite
 Spinoza and Law 227

Laws of
ofNature
Nature 71

injustice, regardless of the prescription's immediate source - whether

it is man's nature, the whole Nature's perfection, or natural reason. In
either case, prescriptions are commandments of justice and can there-
fore be included
inc1uded in the concept
cancept of law. That is exact1y wh
what
at Grotius does
when he establishes a threefold definition of law [jus] as the opposite of
injustice, as prescriptions of justice and as a human moral quality for
the performance of justice. 15
1S

Spinoza writes mostly under Hobbes's conceptual influence, who

inherits in his natural law theory the opposition between rights (per-
sonal powers to do or forbear, with the purpose of self-preservation)
and laws (rational formulations of justice properly legal when posited
by a civil authority) from the Tew Circle,
Circ1e, specifica11y
specifically from the writings
of Dudley Digges and ]eremy Taylor. In Hobbes's ca case,
se, unlike Grotius's,
rights, laws and justice are independent and succeeding concepts, and
prescriptions are simultaneously limitations imposed on natural rights
and specific formulations of justice. Consequently, in a sort of legal
voluntarism, a11 descriptive propositions on the nature of things and
on their actuaI
actual external relations can be called 'naturallaws' only meta-
phorically, and they are never inc1uded
included in Hobbes's conception of nat-
urallaw. 16

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

simply a 'natural right'), and unlike the modern natural sciences',

seiences', his
conception of lex no longer has a mere descriptive sense with reference to
Nature (it is not simply a 'discursive objectivity') - both jus and lex have
a twofold dimension of subjectivity and objectivity. Beyond the inad-
equacy of the laws' prescriptive meaning when applied to Nature, the
laws' descriptive meaning is also insufficient to portray adequately and
fuHy the actual meaning of Spinoza's conception of naturallaws, since
it does not carry with it the subjective dimension. Our first understand-
ing, then, of Spinoza's naturallaws, was a misconception. Descriptive
natural laws are unable to overcome the typical modern gap between
a personal quality and a discursive pronouncement inside the natural
law tradition. Instead, they are a relevant component of that gap. The
fact remains that naturallaws for Spinoza are neither mere descriptions
of what a thing is in itself nor propositional inferences referring to a
priori given data. They are mostly that which is so distinctive to each
individual thing that it aHows the thing to posit itself as a real individ-
ual being.
Since, for Spinoza, God's essence involves all conceivable essences,
each essence's dynamic reality is actually its inscription in God's power-
fully
fuHy self-existent essence - the essence emerges from God's very consti-
tutive process. Natural laws will then be distinctive manifestations of
how such an emerging takes place. To inscribe is to consistently record
an ontological presence and it entails a determinative affirmation and
an original participation
partieipation in the natural production of being. To inscribe
is to exist into God's own self-productive existence, and to discover in
that process one's own reason or justification for being.
Natural laws do not simply describe a thing's essence in itself, but
rather engrave the thing's essence into Nature's solidity and into what
from it. Since they do not contain any limitations
entails trom !imitations of essences
(and hence are not prescriptive) nor any propositions inventorying spe-
eific essential already-existent characteristics (and hence are not descrip-
cific
tive), Spinoza's laws are especially
espeeially the 'how' of a thing's self-affirmation
in Nature, and can then be termed appropriately as inscriptive. That is
precisely what Spinoza does: he combines explicitly a law of Nature
with the inscription of a thing's being into Nature. That is why he talks
about laws 'firmly inscribed in human nature' (TTP XV1/198)XVI/198) and of
'the eternal decree of God, which is inscribed on universal Nature' (TP
lI/22).
I1/22). Or, even more concretely:

This [in most essence of things] is to be sought only from

[inmost trom the fixed
and eternal things, and at the same time from the laws inscribed in
 Spinoza and Law 231

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.

The anatomy of inscription

Naturallaws in Spinoza's naturallaw theory must be something express-
ing the original and continuous cause of of itself in the realm of existent
individuals. When he defines naturallaw, Spinoza is not providing sim-
ply a normatively moral natural law theory, but rather a necessitarian
deterministic natural law theory. Furthermore, these laws cannot also
be mi staken for the natural sciences' laws, which
wh ich are mostly descriptive
of actions and experiences, such as Newton's laws of physics. Instead,
inscriptive naturallaws are the intrinsically original characteristics that
an individual has - and the actions he performs as a fo11ow-up
follow-up to those
characteristics - in order to express self-productive immanent Nature.
These characteristics are also si
six,
x, just as with prescriptions (described
above). But now they represent a total break with the characteristics of
232 Spinoza and Law

76 Natural Law

traditional prescriptive mIes,

rules, in accordance with Spinoza's necessitar-
ian ontology. They are the following:

1. Spinoza's laws mark the making of the individual essence's expres-

sion of naturallaw. The laws of the nature (or essence) of each indi-
vidual thing are not the mere indication of something closed within
itself and they do not simply describe wh whatat is distinctive about a
static essence. God's all-inclusive and self-productive essence neces-
sarily involves all essences and can be conceived only in terms of
efficient and immanent causality. God's essence is equivalent to
God's power: from God's essence everything always folIows, follows, which
means there is nothing static aboutab out it. If all essences always fol-
low immanently from God's causal essence and are expressions of
causa I productiveness, then there is also nothing static about
that causal
them. If an essence involves causal dynamics, then something
must always follow from it: ontology becomes a field of causality.19
The laws of an individual thing's essence will have to express the
necessary production of all consequences following from the indi-
vidual thing's definition - they are then an inevitable expression
of causality.
This causal dimension of inscriptive laws is enhanced by the con-
cept of determination, which Spinoza includes in his definitions of
naturallaw. Traditionally,
Traditiona11y, determination is connected with an exter-
nallimitation in the making of some thing's particular contours - it
is the locus of finitude and it is only mutual negation: negation of
what each thing is not. Spinoza seems to accept this sense of deter-
mination when he says to JarigJelles that, 'since figure is nothing but
determination, and determination is negation, figure can be nothing
other than negation' (Ep SO/892).
50/892). Hegel takes this particular negative
conception of determination as its only sense in Spinoza's philoso-
phy, which is why he thinks a11 all differences and determinations in
things are enclosed within the unique substance's abstract solidity -
Spinoza's entire philosophy is for Hegel an 'abyss of negation'.
However, this interpretation disregards the fact that Spinoza often
mentions determination with reference to levels of being beyond
me re finitude, and also the fact that there is a strong connection
in Spinoza between determination and some so me category of develop-
ment allowing the transition from cause to effect. On the one hand,
Spinoza's negative dimension of determination is contextualized by
the primary geometrical notion of the 'figure', which expresses no
reality at all but merely marks the contours perceived by man of
 Spinoza and Law 233

Laws of Nature 77

what a thing is not. Determination in the figure affirms nothing of

rather
the figure itself, and hence there is no essence but rat her only a more
or less confused construction of the human inte11ect.
intellect. In addition,
essences are pure affirmations of being, which does not entail that
they are not affirmations of natural necessity - determination and
compulsion are not synonymous at a11, but there is determination
wherever there is necessity. Hence, there is determination even in
God's essence. And since God is self-productive by necessity, there
is nothing outside God limiting it, which means that this natural
determination cannot be negation at a11, since there is nothing to
negate - this necessitarian determination can only be purely posi-
tive. Necessity in singular things is involved in God's very necessity
without degradation from infinite to finite expressions - singular
things are but certain and specific ways of God's necessity. Singular
determinations are purely positive insofar as they are certain and spe-
eific expressions of essences unfolding and included in God's neces-
sity. Such a positive dimension of determination makes the world
of confinable things arealm of actual ontological singularity rather
than a co11ection
collection of pieces of finitude. And since negative determin-
ations can never be essential, the reality of determination is mostly
positive in singularities, and therefore also causa!. The laws of an
wh ich God's self-
individual thing's nature are therefore the form in which
productiveness expresses itself in that thing's essen ce - if a11
essence all Nature
can be explained in causa I
causal terms, then it is reasonable to say that
there is in Spinoza an omnipresence of the laws. A singular essen ce
essence
equals its own laws of production.

involves causality, each essence becomes an

2. Since Spinoza's ontology invoIves
expression of God's self-production - a self-production inclusive of
any given notion
not ion of productivity. This self-production does not con-
sist of a unique and definitive movement of making, a (iat,fiat, but rather
of a dynamic unfolding in continuance, that is, a sequence through
trom a given thing something always (ollows. That is why all
which from
that is and can be conceived may be understood by means of the con-
ceptual mechanisms of causality (cause and effect), thus imposing
the inevitability of a connection with ontology. If a11all that is natural
involves this positive production, then causality's conceptual mech-
anisms are the key-elements par excellence through which wh ich Nature
can be understood. Nature is the realm in wh ich everything consti-
which
tutes a cause or an effect of something
samething (or both simuItaneously).
simultaneously). And
a cause can only be termed an actual 'cause' when its effect occurs,
234 Spinoza and Law

78 Natural Law

i.e. what follows from something considered an actual 'cause' is a

necessity of the cause itself. If x is the cause of y, y cannot be stated
to occur or not regardless of x; on the contrary, for x to be termed
a cause, the occurrence of y is inevitable. This means that causal-
ity involves necessity and leaves no room for contingencies. Natural
laws, for Spinoza, admit neither non-observance (or violations, since
violable laws can only be inserted in a context of contingency), nor
exceptions to Nature's causality. They are, in fact, actual expressions
of the necessity inherent to the nature of that individual of whichwh ich
they are laws. They are 'formulae of necessity' (Courtois, 1980).

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).

4. Usually, causality's necessary sequence

seguence consists of a connection
between two different identities, so that the cause-effect relation is
seen as the crossing of a bridge in one singular direction overcom-
ing a limit between two margins. Cause and effect are conceivable,
then, only as involving an intermediary ontological rupture and a
union crossing over that rupture. Furthermore, since the effect is
distinct and necessarily follows from the cause, it can only be termed
an 'effect' when it is subseguent
subsequent to the cause. In this view, cause
and effect are mutually distinct and necessarily connected, and they
seem also to represent distinct chronological moments: the cause
precedes the effect; the effect follows the cause. This is the transitive
conception of causality.
For Spinoza, however, since all natural causality and necessity are
expressions of God's necessitarian causality, and since God is all-
inclusive of being and existence without ruptures, then transitive
 Spinoza and Law 235

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

due to the laws' complete inability to negate any individual thing. As

Spinoza says, 'the definition of any thing affirms, and does not deny,
the thing's essence, or it posits the thing's essence, and does not take
it away' (E3p4d).
Spinoza explicitly departs from Saint Augustine's opinion in his
Confessions (highly influential upon someso me Scholastics) on the intrin-
sie goodness of all that is and exists - and correlatively, on the non-
sic
substantiality of evil - which presupposes the supreme perfection
inherent to God's creation without being able to separate perfection
from a positive or negative valuation of the things created. Spinoza's
natural laws carry out the inscription in Nature of the individual
things' essences,
essen ces, but they say nothing at all about
ab out the usefulness
of those individual things to any other specific individual thing.
Spinoza, in fact, always distinguishes between good and bad in terms
of usefulness, which
whieh implies the usage of a language of ends and a
predominance of human judgement in the identification of those
ends - and if there is such thing as teleological reasoning in Spinoza,
it cannot be generalized to the language of naturallaws in all Nature,
as the appendix to part I of the Ethics shows. Natural laws are not
induded
included in a teleologicallanguage: they simply state degrees of nat-
ural reality; they only relate to the processes of Nature and are 'neu-
tral with respect to value parameters' (Belaief, 1971, 14).
Thus, G. E. Moore's famous 'naturalist fallacy' of which he accuses
naturallaw theories - according to which
whieh good is considered a simple
object of thought without added characteristics and therefore impos-
sible to define, thus entailing the view that all definitions of good
contextualized in nature are fallacious - does not apply to Spinoza's
inscriptive naturallaws, since there is no definition of good and
bad from the perspective of the essences' inscriptions into Nature.
Spinoza does indeed define the good and the bad in terms of useful-
ness, but that is neither a function nor a property of naturallaws. For
instance, even that wh ich a man may consider of pernicious use, and
whieh
therefore bad for hirn, is something inscribed in Nature by meansme ans of
its own naturallaws. And these do not alter even if that something
may be simultaneously considered useful, and therefore good, by
another man. These laws affirm what the individual thing is and not
how it can be used by other (also natural) individual things.

6. If Spinoza's natural laws have no intrinsic

intrinsie positivity of values, they
also have no intrinsic
intrinsie negation of values. Since inscriptive laws are
the essences' productive 'how', they express nothing beyond the
238 Spinoza and Law

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.

In a nutshell, when compared directly to prescriptions: simultaneity, as

opposed to antecedence; causality, as opposed to non-causality; neces-
sity, as opposed to contingency; determinacy, as opposed to possibility;
neutrality toward positive value parameters, as opposed to the impos-
ition of a good; and neutrality toward negative value parameters, as
opposed to the rejection of an evil. A new revolution in early modern
naturallaw is thus under way.

Moral inscriptive laws

If Spinoza's inscriptive naturallaws are neutral before value parameters,
they cannot be inserted into a simple normative deontic ethics under
the general banner of modern rationalism. Deontic laws are not rational
pronouncements at a11, since 'whatever the mind conceives under the
guidance of reason, it conceives under the same species of eternity, or
necessity' (E4p62d); in other words, 'it fit is of the nature of reason to regard
things as necessary and not contingent' (E2p44d) in an adequately
truthful way of understanding what things are in themselves. Since the
prospect of contingency and possibility is contained solely in prescrip-
tions, Spinoza's adequate ways of understanding (including reason)
would not include them. Still, he frequently talks about reason by using
a great deal of language which sounds prescriptive - he attributes it 'pre-
cepts' (praecepta]
[praecepta] or 'dictates' (dictamina],
[dictamina], and he says that it 'postulates'
[postulat], 'prescribes' [praescribit] or 'guides' (ducit]
[ducit] (E4p18s) something
into something. Is Spinoza contradicting himself on these occasions, or
should his conception of reason be reinterpreted in order to assimilate
such deontic prescriptions? Is there such a thing as a prescriptive ethics
in Spinoza that, through reason, can be reconciled with his inscriptive
determinism?
In order to answer this, some of Spinoza's primary assertions should be
recalled. For Spinoza, durational essences
essen ces strive to persevere in being -
they are this endeavour [conatusJ,
[conatus], which in man is the actual striving
 Spinoza and Law 239

Laws of Nature 83
ofNature

'to seek his own advantage rutile],

[utiZe], that is, to preserve his being' (E4p20).
Usefulness takes part both in Spinoza's definitions of good and bad,
and in Spinoza's conception of the human essential conatus: what is
useful for man's perseverance in being is good; what is pernicious for
man's perseverance in being is bad. Since reason understands through
'common notions', Le. through the knowledge of what properties are
shared by natural things integrating the same ontologically individual
order, it is an adequate way of understanding and leaves no place for
falsity
falsityoror error. The same cannot be said of the imagination. To imagine
that something is truly useful does not necessarily make it so, which
means error becomes very likely. If man knows something to be truly
and necessarily useful for his perseverance in being, that knowledge
can only be adequate in kind; and if he believes he knows something
to be useful to hirn whilst in fact it may not be so, that knowledge can
only be inadequate, that is, imaginative, in kind. The knowledge of the
'truly useful' (the 'true good') is attained solely by adequate knowledge-
in the first instance, by reason.
However, if there is one thing Spinoza continually stresses in his eth-
ical propositions, it is that the (rational) knowledge of the true good is
insufficient to control and restrain those (often false) images of what
the true good actually is - reason by itself is unable to overcome the
power of the emotional affects. That is why, in a reference to Ovid, he
says that men often know the good and do the exact opposite. In order
for inadequate imaginative affects to be replaced by the knowledge of
the true good, the rational understanding of actual usefulness must
become an affect (E4p14) - contrary to and more powerful than the
imaginative one.
Still, rational affects or actions, that is, human operations induced not
externally but rather
rat her by adequate active knowledge, remain quite differ-
ent from imaginary affects or passions, that is, human operations pas-
sively subjected to external influences. Spinoza says that active affects
are 'guided by reason' and that they involve joy and desire but never sad-
ness. But this does not mean that in these circumstances human desire
is restrained by being made to observe a rational ought-formulation of
the kind 'x must strive to obtain y for his own preservation', in which
ca se preservation would be an absolutely necessary antecedent and y a
case
good established by a deontic hypothetical imperative - according to
Curley (1973, pp. 371-2), this would allow Spinoza's prescriptive lan-
guage to embody genuine moral imperatives that are categorical rat rather
her
than hypothetical due to the antecedent's absolute necessity. On the
contrary, there is no real affective alternative between passions and
240 Spinoza and Law

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)

Spinoza's arithmetic example of having to find, from a given set of

three numbers, 'a fourth which is to the third as the second is to the
first' (E3p40s2) - which he uses in order to illustrate the distinction
between imagination, reason, and intuitive science - is also useful to
comprehend how three ethical perspectives fit into different kinds of
knowledge. Both the merchant who remembers his teacher's sayings
or has experience with simple numbers and the man who knows the
common property of propositional numbers as they appear in Euclid
will inevitably arrive at the accurate result 6. The merchant is moved
by passive affects leading to a result ratified by reason as the true good,
so that, even though fully
fuHy imaginative, he strives to be affected only by
what leads to that result. The result 6 stands to hirn not as rationally
directed but rather imaginatively directed - but since it is objectively
the exact same result achieved by someone who is rationally directed,
6 stands to the merchant as reasonable. The means he uses in order to
achieve 6 seem to have the same qualities as those prescriptions whose
posited goods are substantively similar to reason's common notions.
The imaginative ethical man acts exactly like the merchant. In order
to achieve a certain result, he resorts to imaginative mechanisms, such
as memory, hearsay, everyday life experience, and prescriptions. Spinoza's
famous 'model of human nature' [exemplar humanae naturae], presented
in his preface to part IV of the Ethics as a sort of ideal to be achieved
 Spinoza and Law 241

Laws of Nature 8S
ofNature

ethically, has troubled Spinoza scholarship for decades precisely because

that model is usually interpreted as a possible good established by rea-
son, in a sort of prescriptive intellectualism. That model, however, is
nothing other than the result of the imaginative search for the true
good. 1t
It stands before the ethical imaginative man in the same way that
the result 6 stands before the imaginative merchant. The model is the
imagination's tendency toward performing by itself wh what
at reason notes
to be truly good. From the viewpoint of Spinoza's moral intellectualism,
that model does not represent human freedom - but it is a step doser to
intellectualliberation than the alternative complete bondage to volatile
passions without a necessity referential.
On the other hand, when affects have rational motivations, their
adequate ideas of common properties identify and establish the true
good toward which human desire is directed. Consequently, prescrip-
tive references to reason cannot be considered fully deontic in nature.
They are, rather,
rat her, designations assumed by the desire for the true good
when the human mind conceives it adequateIy.
adequately. Hence, desire becomes
an endeavour for the true good structured into a process with its own
logicalorder. Only in this procedural sense can reason be said to guide
or to postulate. The rationality allowing for an agreement between men
to take place is not made of deontic laws, but rat rather
her unfolds in distinct-
ive traits toward the knowledge of the supreme good. In other words,
reason has its own naturallaws, but they are not prescriptive - they are
reason's immanent inscriptive laws. Spinoza's 'dictates of reason' are
not a set of prescriptions, but rat
rather
her the necessary consequences follow-
ing the mind's determination by adequate ideas.
That is why Spinoza's ethical theory is mostly concerned with finding
'wh ich affects agree with the rules of human reason, and wh
out 'which which,
ich, on
the other hand, are contrary to those rules'
ruIes' (E4p18s, my emphasis): he
does not seek to establish the formula or the contents of these rules,
ruIes, but
rat her how the world of human affects (whether active or passive) can
rather
reproduce what they actually and necessarily determine. Reason never
really prescribes a contingent possible object and it never affirms the
intrinsic goodness or badness of something. It is rather the knowledge
of those common properties constituting the true good, and it meas-
ures under mere criteria of utility what occurs with passive and active
affects. That is the level at which affects can be termed as being in con-
formity with or in opposition to reason. 21
So, one should be careful about the ways through which one con-
siders that Spinoza's ethics contains a theory of value or a norma-
tive dimension before a meta-ethical one. However, his natural law
242 Spinoza and Law

86 Natural Law

theory is, as stated before, especially interdisciplinary throughout his

system, and ultimately it also constitutes a moral doctrine. His inscrip-
tive laws form a wide deterministic naturallaw theory that is not spe-
cific to man - but, insofar as natural law is mentioned especially in
the beginning of excurses concerning what is specific to man, it must
also have a necessary ethical dimension. How, then, can its inscrip-
tive determinative laws have an ethical relevance in such a moral
philosophy?
The fact is that Spinoza's naturallaw
natural law theory is composed of essential
naturallaws, which are neither deontic prescriptions nor mere scientific
descriptions but rather
rat her the expressive 'how' of the essen
essences'
ces' inscription
into Nature's productivity. Spinoza builds his natural law theory from
ontological,
ontologieal, instead of moral or meta-moral, foundations. Notions such
as 'justice', 'virtue', and 'perfeetion', often given a specifically moral
and sometimes even normative dimension, are to be understood as des-
ignations of the highest conceived expressions of natural (ontological)
inscriptive reality. Spinoza's ethics is not so much like a gUide, a col-
lection of commandments or a self-help manual. But it is equally not a
mere meta-ethical theory. He is not concerned exc1usively
exclusively with stating
eternal truths, but also with the advocacy of a particular way of living.
Consequently, his natural law theory is also a normative ethics, albeit
without norms. He presents it more like a map: it shows what there is -
what is larger or smaller,
sma11er, what is higher or lower, what are the means to
reach each existing place. But a map only guides when it is read, which
means that the reader must strive on her or his own to achieve those
places that are the highest expressions of Nature. The reader's task is
to reproduce the portrait of man's highest ethical condition in Nature
without the comfort of a moral GPS.
Natural law is an expression of Nature. The more an individual
essence expresses Nature's productivity, that is, the more it is naturally
inscribed, the more powerful it actua11y is - also, the bigger is its natural
law. Inscriptive naturallaws are to be found in a11 existent individuals,
albeit in different degrees - and the same can be said of each individ-
ual's participation in natural law. Insofar as individuals are beings of
relation, they are bigger individuals the more the relations that com-
pose them, which means they are more causal and more inscriptive in
Nature (they express more Nature than other individuals who are com-
posed of less relations) - they are, then, more positive in their intrin-
sie affirmativeness, more capable of persevering in being, less liable
to external
extern al influences, and more participative in Nature's productiv-
ity. In other words, they are freer: that is the range of Spinoza's ethics.
 Spinoza and Law 243

Laws ofNature 87

All of Spinoza's normative claims, whether rationally descriptive of

means to perseverance and of the freest men or imaginatively prescrip-
tive of ways through which passions can reproduce common notions,
fit into this map-paradigm.
'Justice', 'virtue', and 'perfection' qua1ify
qualify these bigger expressions of
Nature's concord and of natural inscriptive law. Inscriptive naturallaws
are those through which each individual expresses its own causal degree
in Nature's entire causal productivity. Value is measured only from the
viewpoint of efficient causality expressed by the individuals' inscrip-
tive naturallaws, which have a moral dimension when specific to man.
Such traditional moral values neither require nor accept prescriptions.
This does not mean that prescriptive pronouncements have no relevant
role to play in Spinoza's naturallaw theory - they can actually be effect-
ive means through which the imaginative man prevents his natural
laws from being less inscriptive than they actually are, and, in certain
circumstances, they can even boost his natural laws into being more
inscriptive than they could have been.
Spinoza's natural law theory is neither some form of deontology
nor of traditional ethical naturalism, according to which good is an
empirically verifiable property that is common to some things deemed
intrinsically good. However, his naturallaw theory has room for quali-
fications of value such as 'virtue', albeit measured in causal terms; it
has room for consequentialist criteria for determining the free man,
insofar as consequences are regarded as effects produced in Nature
and imputed to hirn as a direct cause; it has room for perfectionism
insofar as his ethical theory describes the available set of inscriptive
natural laws that can be absorbed and reproduced individually in a
project for the improvement of oneself; and it has still some room for
the usefulness of deontology, even though in a very restricted way.
His natural law theory embodies, at once, some form of ethical nat-
uralism, some form of virtue ethics, some form of consequentialism,
some form of perfectionism, and some form of imaginative deontology,
albeit always in an inner reconstructive way and only insofar as each of
these dimensions represents a different criterion for assessing different
stages of moral individual processes. Even here, Spinoza's revolutions
however, they will only be
in naturallaware wide-ranging. Ethically, however,
completed with the final connection between his natural determinism
and his moral theory that is mostly a connection between causality
and epistemology.
In this sense, the moral range of inscriptive natural laws must
remain on hold until this book's final chapter, in wh ich the problem of
which
244 Spinoza and Law

88 Natural Law

freedom will be regarded precisely as the most ehallenging

challenging mixture
between eausality
causality and epistemology. The highest degree of freedom pre-
sen ted in Spinoza's naturallaw theory will also be the highest degree of
sented
man's ethical condition, measured especially by individual efficieney.
efficiency.
This is the point on whieh
which all of Spinoza's natural law theory must
ultimately
uItimately rest: eausal
causal efficieney.
efficiency. It eonstitutes
constitutes the aetual
actual eontent
content of
what he understands as power.

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

extreme empiricism does present a problem absent in both the traditional

and Spinoza's views: if norms are only prescriptive when they are complied
with, and compliance is only observable after the prescription's actual for-
mulation, how prescriptive really are these norms? Ross's norms do not seem
to be norms at all, aimed at inducing or motivating certain behaviours, but
rat her descriptive laws with no room for any actual deontology.
rather
7. Sequential contingency is inherent to the prescription, which is why the
etymological root of the Latin lex could also be traced to eligere [choosing]
(Cicero, 1970, Bk. I, 5, 316).
8. Spinoza also refers sometimes to prescriptions as dogmata: see, for instance,
E5plOs.
9. My interpretation of God's self-causation and of Spinoza's necessitarianism
extends to the traditional extremes: on the one hand, I accept the complete
identification of God with the whole of Nature (Deus sive Natura), whether
it is an all-causing Nature (Natura naturans) or an all-caused Nature (Natura
naturata) (against, see Curley, 1969, pp. 59-61; and 1988, pp. 42-7); on the
other hand, I understand Spinoza's necessitarianism absolutely and I take
his determinism to leave no room for contingencies or alternatives - in this
matter, I tend
te nd to follow closely
elosely Garrett 1991.
10. According to Nadler (2006, pp. 105-6), contillgency
contingency in Spinoza is an ambigu-
ous term. The definition of contingency is constant throughout Spinoza's
works and it generally refers to what is undetermined or without cause: KV
l/6,
I16, §§2-3; CM l/3; Elp33s1. In part IV of the Ethics,
I13; E1p33sl. Etllics, however, the defin-
ition appears quite differently: 'I call singular things contingent insofar as
we find nothing, whilst we attend only to their essence,
essen ce, which necessarily
posits their existence or which necessarily exeludes
excludes it' (E4d3). Nadler con-
cludes
eludes from this that the early definitions of contingency are excluded
exeluded from
the reality of Spinoza's ontological system, but not the latter one, so that
there is some contingency compatible with Spinoza's ontological necessi-
tarianism. I believe, however, that one should be careful with the way one
interprets E4d3. On the one hand, this is because it is actually adefinition
of the essen ces of singular things and not of the nature of contingency per
essences
se, which appears only nominally. On the other hand, it is because even
those essences of singular things ca lied contingent (due to the fact that
their essen ces neither posit nor exclude
essences exelude their own existence or inexistence)
necessari/y at the very least in God's eternity, since they are expres-
exist necessarily
sions of God's eternal necessity. This means that contingency is measur-
able only in time (E2p31c), which, as Spinoza elearly cIearly says in Ep 12, is but
a 'mode of thinking' [modus cogitandi]
cogitalldi] and not something objectively real.
Contingency in part IV of the Ethics
Etllics does not seem to be a notion expressing
reality, but rather a semantic auxiliary to the most practical argument of the
Ethics.
Etllics.
11. According to this interpretation, sanctions are merely circumstantial subse-
quent characteristics to be found in prescriptions rather than sine qua non
conditions for valid deontic statements.
12. This is roughly Deleuze's (1988, pp. 30-43) interpretation of the original
sin in Spinoza's correspondence with Blyenbergh, which he calls 'the let-
ters of evil'. Deleuze, however, fails to explain how God's merely descrip-
tive statements to Adam are, according to Spinoza, interpreted by Adam
246 Spinoza and Law

Notes 185

as prescriptions - maybe because he appeals only to Spinoza's correspond-

ence without approaching Spinoza's necessitarian ontology in the Ethies. I
believe my interpretation of the imagination's intervention explains how
Adam transforms
transfarms descriptive assertions into deontic formulations.
farmulations.
13. Balibar (1997a) says that prescriptions have three elements in Spinoza's phil-
osophy: the enunciation
enundation (affirmation of something); the actual prescriptioll
prescriptiofl
(a deontic affirmation of something); and what he calls narrative o( of legit-
imation, that is, the integration of the prescription into a specific spedfic cultural
and historical
histarical context where some political power is instituted. I believe he
is quite right in his interpretation that prescriptions are only fully grasp-
able when they are inserted into anational and political context. Thus, the
actual meaning of Spinoza's laws of Nature can only be fully established
within a national-political instance, which is explored
explared further in chapter 5.
14. Hume (2007, vol. I, Bk. III, ch. Ir, II, section 5, 332). In the words
wards of LeBuffe
(2010, 165), 'Spinoza's account of nature ... is not one that lacks oughts', since
the attribution of value to things is a relevant part of Spinoza's account of
Nature.
15. Grotius, 1925, Bk. I, ch. I, pp. 33-50. Richard Tuck (1979, pp. 58-81; 1993,
pp. 154-200) insistently says that Grotius's prescriptions constitute natural
law only when there are prior verifiable natural rights. Grotius's natural
fights
rights are indeed faculties combined with a primary discernment of what
is useful far
for the preservation of one's life (much like the Stoic oikeiosis) and
with an instinctive human desire for far social
sodal association (what he calls appe-
sodetatis in the Prolegomena to his De lure
titus societatis Pacis). However, they
Ture Belli ae Pads).
also involve the perception of the presence of others within naturallaw. The
mere primary discernment of what is useful for far one's preservation is not yet
a Grotian natural right, since a right far for Grotius is the personal moral quality
for
far the performance of what is the opposite of injustice. All three meanings
of Grotius's law are therefare
therefore simultaneous. FarFor further developments, see
Campos, 2009.
16. Hobbes, Leviathan, EW III, ch. XIV, pp. 116-7; and ch. XV, 147.
17. See also Uyl (1999, 136), who states pertinently that his claim 'is not that
Spinoza never makes normative pronouncements, but rat rather
her that such pro-
nouncements are neither fundamental nor central to the doctrine'.
18. Miller (2003, pp. 260-1) distinguishes in Spinoza's natural laws between
causal inscription and descriptive entailment. Miller's textual note is indeed
correct: Spinoza uses the term lex either with reference to what is inscribed
in an essence or with reference to what necessarily follows (seeundum)
from an essence. However, this does not mean that this distinction can go
beyond mere terminological usage, and that inscriptioninscriptiofl and entailment can
be considered different things. On the contrary, they are mutually comple-
mentary, forfar if inscription is causal, it must be a 'necessary sequence', since
that is causality's very efficiency.
effidency.
19. Lin (2006) expresses this combination of ontology and causality through
the formula 'causation through essence' (CTE). Lin, however, regards it as a
faulty doctrine for far failing to recognize the existence of accidents exterior
exteriar to
the things' essences.
20. As stated in note 6, Spinoza is here at once dose close and far from Alf Ross's
legal realism. Like Ross, the very idea of natural
naturallaws
laws implies their validity.
 Spinoza and Law 247

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?

Bibliography
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
University Press).
Courtois, Gerard. 1980. 'La loi chez Spinoza et Saint Thomas d'Aquin', Archives
de Philosophie du Drait 25: pp. 159-89.
Curley, Edwin. 1969. Spinoza's Metaphysics. An essay in interpretation
illterpretatioll (Cambridge:
Harvard University Press).
- - . 1973. 'Spinoza's Moral Philosophy', in ill Marjorie Grene (ed.), Spinoza: A Collec-
tion ofCritical Essays (Notre Dame: Notre Dame University Press), pp. 354-76.
- - . 1988. Behind tlze
the Geometrical Metlzod. Reading ofSpinoza's 'Etlzics' (Princeton:
Met/lOd. A ReadingofSpinoza's
Princeton University Press).
248 Spinoza and Law

Bibliography

Deleuze, Gilles. 1988. [1981] Spinoza. Praetical

Practical Philosophy, trans. R. Hurley (San
Francisco: City Lights).
- - . 1992. [1968] Expressionism in Philosophy: Spinoza, trans. Martin ]oughinJoughin
(Cambridge: MIT Press).
Garrett, Don. 1991. 'Spinoza's Necessitarianism', in Yirmiyahu Yovel (ed.), God
Metaphysies (Leiden: Brill), pp. 191-218.
and Nature: Spinoza's Metaphysics
Gow;:alves, J. Cerqueira. 1977. 'Individuality and society in Spinoza's mind', in
GOlll;:alves,].
Siegfried Hessing (ed.), Speculum Spinozanum. 1677-1977 (London: Routledge).
Hampshire, Stuart. 2005. Spinoza and Spinozism (Oxford: Clarendon Press).
Jonas, Hans. 1973. 'Spinoza and the Theory of Organism', in Marjorie Grene
]onas,
(ed.), Spinoza. A Collection ofCritical
of Critical Essays (Garden City: Anchor-Doubleday),
pp. 259-78.
Matheron, Alexandre. 1969. Individu et communaute ehez chez Spinoza (Paris: Les
Editions de Minuit).
Nadler, Steven. 2006. Spinoza's Ethics. An Introduction
Introduetion (Cambridge: Cambridge
University Press).
Oakeshott, Michael. 1975. Hobbes on Civil Association (lndianapolis:
(Indianapolis: Liberty
Fund).
Ross, Alf. 1968. Directives and Norms (London: Routledge).
Simondon, Gilbert. 1989. L'individuation psychique
psyehique et collective (Paris: Aubier
Montaigne).
Suarez, Francisco. 1971-5. De Legibus ac ae Deo Legislatore, ed. Luciano Perena,
5 vols. (Madrid: Consejo de Investigaciones Cientfficas).
Cientificas).
Uyl, Douglas Den. 1999. 'Power, Politics and Religion in Spinoza's Political
Thought', in Paul J. Bagley (ed.), Piety, Peaee
Peace and tlle
the Freedom to Philosophize
(Dordrecht: Kluwer), pp. 133-58.
Wetlesen, Jon. 1979. The Sage and the Way. Spinoza's Ethics
Ethies ofFreedom (Assen: Van
Gorcum).
 [13]
Spinoza, Kelsen and the Nature ofthe Legal Norm*

Diogo Pires Aurelio

Out ofthe immense number oftopicsoftopies that Spinoza seholars

scholars have studied over reeent
re cent deeades,
decades,
the possibility of a rapproehement
rapprochement between his philosophy and Kelsen's work has gone
unnotieed. Whether that has been beeause
virtually unnoticed. because ofthe speeifie
specific topie
topic ofthe law in Spinoza,
at least in the reading that has prevailed sinee
since the nineteenth eentury,
century, being subordinated to
the overall subjeet
subject of polities,
politics, or because
beeause Kelsenian formalism has all the appearance
appearanee of a
doetrine
doctrine loeated
located at the opposite pole of Spinozism - where law is defined both by the 'power
of eaeh
each individual' (naturallaw) and by the 'power ofthe multitude' (eivillaw)
(civillaw) - the truth is
that the rapproehement
rapprochement between the two authors has only reeently
recently been subjeet
subject to some, albeit
somewhat rare, interest, despite the various important aspeets
aspects in whieh
which the works of the two
ofthe
interseet.
intersect. 1 Even more surprising is that not even Kelsen hirnself
himself seems to ever have suspeeted
suspected
the affinity that ean
can be noted between his eoneeption
conception of law and that, albeit within a totally
different metaphysieal
metaphysical framework, whichwhieh is to be found within Spinoza's work. Antonio
Negri's pertinent observation made in this regard in 1985 is therefore not surprising:

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

"• Originally published as Diogo Pires Aun5lio,

Aurelio, 'Espinosa, Kelsen e a natureza da norma jurfdica', in
normajuridica',
o mais natural dos regimes. Espinosa e a democracia (Lisbon: Temas & Debates), pp. 280-310. English
translation by David Hardisty.
I A flagrant example of this omission can be seen in the collective work, organized by Olivier
Bloch, on readings of Spinoza in the last century - Spinoza au XXe Siecle, Paris, PUF, 1993 - which is
undoubtedly a remarkable collection oftexts where some ofthe major Spinozists ofthe last few decades
placed the author of the Ethics alongside authors as diverse as Schmitt, Freud, Heidegger, RusselI,
Deleuze and Derrida, and where there was no mention ofKelsen.
I 'Reliqua desiderantur: a conjecture for adefinition of the democracy in the final Spinoza',
in Antonio Negri, Subversive Spinoza. (Un)contemporary Variations, ed. by Timothy S. Murphy,
Manchester University Press, 2004, note 17, p. 55. See also Manfred Walther 'Spinoza und der
Rechtspositivismus' in Emilia Giancotti, (ed.), Proceedings ofthe First Italian International Congress
on Spinoza, Napoli, Bibliopolis, 1985, pp. 401--418.
onSpinoza.
250 Spinoza and Law

distinction which the Abbe de Sieyes established between constituent power and constituted
power. Schmitt indeed states:

The idea of the relationship between pouvoir constituant (constituen1Jconstituting

(constituentlconstituting power) and
constitue (constituted power) finds its complete analogy.
pouvoir constitw? analogy, systematic and methodological,
methodological.
in the idea of a relation between natura naturans (nature nurturing/creating)
nurturinglcreating) and natura naturata
nah/rata
(nature natured/created). And even ifthe idea has been integrated into Spinoza's system,
Spinoza·s rationalistic system.
this demonstrates even more that this system is not exclusively rationalistic. The theory of
ofpouvoir
pouvoir
constituant is incomprehensible simply as a form ofmechanistic rationalism?
rationalism. 3

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

I Carl Schmitt, Dictatorship, trans. Cambridge, PolityPress,

Polity Press, 2014, p. 123.
I Carl Schmitt, The Leviathan in the State Theory ofofThomas
Thomas Hobbes.
Hobbes.Meaning
Meaning and
andlailure
faUure of
01 a
political symbol, trans. George Schwab and Erna Hilfstein, The University of Chicago Press, 2008,
p.58.
I 'Cohen's Analyse der Bibel-Wissenschaft Spinoza's', Der Jude, Berlin, Vlll 5/6 Mai-Jun,
1924, pp. 295-314, trans. in Leo Strauss, Le testament de Spinoza, Paris, Les Editions du Cerf,
Cert: 1991,
pp. 51-78.
 Spinoza and Law 251

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? How can decisions and actions be attributed

artributed to the State if, in fact, these are the
responsibility of isolated individuals or small groups who hold power? Political systems, at
least in modem tim es, explain such a synecdoche by invoking the device of 'representation':
times,
as far as decisions regarding public marters,
matters, rulers make them on behalf ofthe whole country
to which they belong. However, resorting to the concept ofrepresentation is, for Kelsen, once
more falling back into the swamp of metaphysics, and he refuses, as the positivist that he is,
ofmetaphysics,
any transcendental avatars that appear to be present in such a justification of power. Worse,
using inspiration from Freud, he sees representation as being reminiscent of the primitive
festivities described in Totem and Taboo, during which children would fasten on their faces
the mask ofthe murdered father and in a trance would dance around the grave, believing that
through this ritual the strength and power ofthe totem would incamate even for just a moment
and would be in the body ofeach
of each one ofthem.
of them. Acting in the name ofthe
of the State, according to
Kelsen, may not in the science of law mean anything but being in agreement with a given
legal order - that is, acting by force of a norm which, because it is legitimate, legitimises the
act. And how do we know that the normnonn is legitimate? Because there is a norm before
be fore that one,
which contains it and qualifies the agent to act in such a way. Thus:

No action is an act of the State insofar as it is an execution of the legal order

order.....
... But, in a wider
sense, the legal order is executed by all those actions which serve as apreparation for a sanction, in
particular actions by which sanction-stipulating are created. Acts of State are not only human actions
by which the legal order is executed, but also human actions by which legal order is created, not only
executive but also legislative acts. To impute
im pute a human act to the State, as to an invisible person, is
to relate a human action as the action of aState organ to the unity of the order which stipulates this
action.
actionY 13

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:

If a commonwealth were not bound by the laws or mIes,

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?1
chimera. 31

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

The relationship is unresolvable, it should be added contrarily to Negri, because there is no

politics or law without the presupposition of a unit, and the multitude is both a unit and its
opposite at the same time. But it is an 'unresolvability' that forms
fonns part ofthe very nature of
the city. And the nature of the city, now thinking along the lines of Kelsen, manifests itself
both at the legal and sociological levels - operating, indeed, in parallel. But nature manifests
itself in both in the same way.
itselfin

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

of each science in Aristotle's

Aristotle 's epistemology, or Anse1m
Anselm's's ontological proof of the existence of God. In
those cases, we can see a kind of ideological thought, or belief:
ofideological belief, where the basis ofthe whole thinking is
apriori placed like an absolute one (the ground), in such a way that it hides the real epistemic operations
which support the possibility of such a belief (the grounding). See Fernando Gil, La conviction, Paris,
Flammarion, 2000, passim.
35 TTP 14, G lll, 176, trans. Samuel Shirley, New York, E. J. Srill,
Brill, 1991, p. 166.
36 TTP 15, G lll, 185, trans. p. 175.
37 TTP 16, G ITI,
TIT, 199, trans. p. 189.
38 See TTP 16, G ITI,
TIT, 193, trans. p. 183.
262 Spinoza and Law

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

Boringhieri, 1985, pp. 209-210

 Spinoza and Law 263

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

41 I', in NoFO (October 2007), p. 86.

See Hakan Gustafsson, 'Fiction of Law 1',
42 0/ Law, translated from the second (revised and enlarged) edition by Max Knight,
Pure Theory 0/
Clark, New Jersey, The Lawbook Exchange Ud, 2005, p. 202
264 Spinoza and Law

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

Reason, A 770-771, B 798-799, trans. Marcus Weige1t,

o/Pure Reason,A
43 Kant, Critique olPure Weigelt, London, Penguin
Classics,
C1assics, 2007, pp. 613-614.
44 Hans Vaihinger, The Philosophy 0/ 01 'As 11', trans. C.K. Ogden, New York, Harcourt, Brace &
Company, 1925, pp. 271-289. Vaihinger comments in this chapter on 'The discipline ofpure reason in
Hypothesis', the above-quoted third section ofthe 'Transcendental doctrine ofmethod' in the Critique
01 Pure Reason.
0/
Kelsen, Allgemeine Theorie der Normen, Manz'sche
45 Ke1sen, Manz' sche Verlags - und Universitätsbuchhandlung,
Wien, 1979, p. 207.
46 Hans Vaihinger, The Philosophy 01 0/ 'As 11', p. 16. Vaihinger further distinguishes 'real fictions'
tictions'
from 'semi-fictions', which would be contradictory only to reality, but not in themselves, giving as an
example the 'artificial classifications'.
 Spinoza and Law 265

true or false. On the other hand, for the positive norm

nonn establishing such a restriction, it cannot
be stated to be true or false, but it can only be stated whether it is valid or not, i.e. that
there is or not a higher norm
nonn the requirements of which it satisfies. Recognizing, therefore,
the validity of a norm does not remove objectivity from the science of law because such
recognition is not equivalent to a requirement - the science does not state that you must
obey the valid norm
nonn - but only to the description or verification of another norm nonn which is
above it and which ensures its validity. If a person has to pay a particular tax, this is not
because of a matter of justice, as claimed
c1aimed by natural law, but it is because his/her income has
reached a level at which the state budget law in that year stipulates taxation. And if we ask
why the budget law requires this, the science of law will respond that it is because there is
another norm, the Constitution, which enshrines the validity ofthe Budget Law, as approved
by the competent authority. Only this formal fonnal procedure can confer objectivity to the norm nonn
that requires the payment of tax, making it distinct, on the one hand, from the order that a
thief gives his/her victim to hand over to hirn/her, under duress, his/her belongings, and, in
addition, from the moral norm
nonn dictating a duty to contribute to society based on the material
value ofthis prescription. But it is also this formalism
fonnalism that removes from the legal system as
a whole the ethical basis which is traditionally ascribed to it, including by Kant, and leaves
open the problem of system c1osure.
closure. The solution found by Kelsen presents, as we have seen,
serious difficulties. Indeed, ifthe norm is neither true nor false, one cannot speak of a logical
inference from the contents of the higher norm to the lower norm, but only of a chain of
authorities: the higher norm
nonn applies only to who, in what circumstances and with what degree
of discretion, is authorized to determine
detennine the contents and monitoring ofthe application ofthe
lower norm.
nonn. Thus, the legal order presents itself as a hierarchical succession of authorities,
while at the same time law becomes the province of the will, and not reason, as Hobbes
had anticipated, in his statement auctoritas, non veritas, facit legem. legern. From this comes the
identification, to which Kelsen returns in the final part of his work, of the basic norm and a
'heuristic fiction' in the manner ofVaihinger: to avoid an ad irifinitum
irifiniturn regression, the validity
of the Constitution would have to be based on the fiction that a will has postulated it and, in
this way, validate the successive chain of normative
nonnative acts. To what extent, however, can this
'irrationalism' suit the legal positivism of Kelsen?
At first sight, it would reconcile law and the State with its sociologically verifiable reality.
Indeed, in the genesis of all political groups organised under a Constitution, there has
always existed the supremacy, whether forced or consensual, of a will that has imposed and
consolidated its rule. However, the law is not limited to the existential ortheor the historical realms.
It is not just a simple fact or series of facts; otherwise there would be no distinction between
the order ofthe guard who stops us and the order ofthe thiefwho orders us to hand over our
bag. What the legal system is, as we have said, is a certain kind ofwhat of what should be, a set of
values not established metaphysically, but produced by itself, implying what could be called a
transcendence in immanence. Contrary, therefore, to the fictions ofVaihinger, the basic norm nonn
cannot be said to contradict factual reality, given that it has an ontologically differently nature:
a norm
nonn does not stop being valid because it is not effective, that is, it becomes a dead letter and
no one else acts in accordance with it.
Furthennore,
Furthermore, the use ofofaa fiction to solve a scientific problem has always been incompatible
with Kelsen's positivism. It is sufficient to remember the criticism of notions such as
Gemeinshaft,
GerneinshaJt, cited above, ororthat
that of'political representation' as the essen
essence
ce ofparliamentarism,
266 Spinoza and Law

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

47 0/ Pure Reason, A 772, B 800, above quoted, p. 615.

Critique 0/
48 Hermann Cohen, Logik des reinen Erkenntnis [1904], above quoted, p. 81.
 Spinoza and Law 267

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.

49 See Frederic Lordon, 'Derriere l'ideologie

['ideologie de la legitimite, la puissance de la multitude', in
Chantal Jacquet, Pascal Severac andAriel Suhamy (eds), La multitude lihre. TraUe
/ihre. Nouvelles lectures du Traite
Po/itique, Paris, Editions Amsterdam, pp. 105-129.
Politique,
50
50 text, ed. G.E.M. Anscombe and G.H. von Wright,
Wittgenstein, On Certainty, Parallel text. Wright. London,
Wiley-Blackwell, 1975,
1975. § 341.
 Part IV
Civil Law and International Law
 [14]
THE CONCEPT OF CIVIL LAW
INSPINOZA
IN SPINOZA

Gail Belaief

A. THE DEFINITION OF CIVIL LAW

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

14 THE CONCEPT OF CIVIL LA W

W

Rewards and punishments are adjoined to the law as expressive

of this compulsive aspect. "In consequence, law is apt to be re-
garded as a rule of life prescribed for men by the command of
others; accordingly, those who obey law are said to live under law,
and are thought to be slaves."3 Thus civillaw is a command issued
by the sovereign with sanctions expressive of its compulsive aspect.
Although Spinoza has outlined the basic elements of the command
theory of law, it is contended in this analysis that this resemblance
is merely formal and that the intention of Spinoza's theory is essen-
tially different from that of the classical command theory. The
command aspect of civil law is intrinsically tied up with the man-
ner in which laws function. Law must involve a coercive aspect if
it is to be regulative of men's behavior insofar as men, for the most
part, do not recognize the necessary function and value of law. Al-
though Spinoza does repeatedly characterize law as a command or
order of the sovereign, this characterization is not so much expres-
sive of the essence of law as it is a consequence of the lack of in-
trinsic appeal of most laws to those who are subject to them.
Spinoza, in characterizing civil law as a command, emphasizes
a significant distinction from what he calls naturallawand natural
Divine law which are not commands in the proper signification of
the term. 4 Natural Divine laws and naturallaws are necessary prin-
ciples of existence which can neither be obeyed nor disobeyed in
the strict sense, nor are they products of human invention. Natural
Divine law carries eternal
etemal truth, descriptive of what occurs of neces-
sity in the universe on the basis of God's will which is identical with
his understanding. Spinoza's notion of naturallaw is not in the tra-
dition which conceives the natural law as a natural moral law
stipulating the good and bad, just and unjust aspects of human
behavior. 5 Natural law relates to the processes of nature and is
neutral with respect to value parameters. When it is noted that

3S W orks, trans. A. G. Wernham (Ox-

Benedict de Spinoza: The Political Works,
ford, The Clarendon Press, 1958); A Treatise on Religion and Politics (TPT),
p. 69, Chap. 4. G. Val.
Vol. III, p. 59, 1. 8-10.
4 For a detailed treatment af
Far of Divine and natural law cf. Chap. 11,
naturallaw II, Section
AandC.
A andC.
5 For a discussian
Far discussion of the natura11aw
naturallaw tradition cf. Appendix A.
 Spinoza and Law 273

THE CONCEPT OF CIVIL LAW 15

events take place by natural necessity, this is acknowledged as
a fact of behavior with which civil law must deal and is not
taken as a direct moral requirement of the coincidence or com-
patibility of the civillaw. Civillaw, on the other hand, is the product
of human will, which is not ipso facto determinative of actual occur-
rences, although it may and should be expressive of human reason.
Human law can be either obeyed or neglected, the command ac-
cepted as regulative of behavior or not.
In order for civil law to achieve efficacy the citizens must be
induced in some way to obey the substance of the command. "As
the true object of legislation is only perceived by a few ... legis-
lators, with a view to exacting general obedience, have wisely put
forward another object."6 The condition of efficacy is of central
importance for the development of Spinoza's notion of law. It deter-
mines the manner in which citizens can be led to obey and deriva-
tively determines the sphere of control exercisable by the civil state,
that is, the behavior to which obedience can be demanded. Analysis
of the instrumentality of law will give insight into the limits of legal
control and thus of the legal jurisdiction of the state.

B. THE INSTRUMENTALITY OF LAW

In analyzing the way in which law functions in leading citizens to

obey the substance of a legal command, it is necessary to consider
aspects of Spinoza's theory of human behavior. According to
Spinoza, since the intellect can never achieve absolute authority
over the emotions a person is always motivated to a certain extent
by passion. Men inevitably seek their own interests and advantage,
partially in accordance with reason, but primarily as guided by im-
pulses which are rooted in the object as desired. Men who have not
eITors regarding their real
achieved full rationality make frequent errors
interests and the proper means of attaining satisfaction. In this
condition of partial rationality is located both the need for laws,

8 Elwes, TPT, p. 58, Chap. 4. G. Vol. III, pp. 58-59.

274 Spinoza and Law

16 THE CONCEPT OF CIVIL 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

7 Spinoza appears to give a utilitarian justification of punishment. In Letter

78 to Oldenburg CA. Wolf, The Correspondence 0/ 01 Spinoza (N.Y., Dial Press,
1927»
1927» be he writes, "He wbo
who is unable to control bis his desires and to restrain
them through fear of tbethe laws ... must be excused for bis weakness ..." G.
Vol. IV, p. 327.
8 Spinoza, Ethics, ed. James Gutmann (N. Y., Hafner Publishing Publisbing Co.,
1957), Part 4, Prop. 37, Note 2. All subsequent references to the Ethics are
to this
tbis edition and will be designated "E".
HE". G. Vol. II,
H, p. 238.
 Spinoza and Law 275

THE CONCEPT OF CIVIL LAW 17

C. THE LIMITS OF LEGAL JURISDICTION

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

18 THE CONCEPT OF CIVIL LA W

the citizens bope rather than fear. "It is true that

cltlZenS obey out of hope
which arise between parents and children are generally
quarrels whicb
more frequent and more bitter than quarreis
quarrels between masters and
slaves, yet it is not conducive to good family management to make
the father cbildren as slaves."ll It is the duty
fatber a master, and to treat children
and obligation of a subject to obey the laws, and the state must aim
at making this obedience as natural as possible. This is the respon-
sibility of the lawgiver as weil
well as the
tbe natural necessity of the state.
If the state does not meet a minimum level of reasonableness in its
commands, it cannot expect nor gain the obedience of its citizens,
no matter what penalties it attaches
attacbes to its laws. There are certain
things a man cannot do; essentially he cannot desire to do anything
which
whicb he does not understand to be to his bis advantage, whether
wbetber hebe
is right or wrong.
wrang. This may be taken as the natural limit to the
authority of the state. The greatness of astate is thus not exhibited
autbority
by its ability to punish, its power to maintain itself through threats,
but rather by that reasonableness and 'rightness" which renders en-
forcement of its punishments and threats superfluous. Astate which
does not perform its given functions characterizes itself as a weak
state which is more a prison than a sanctuary in its duplication of
the aggressions it was instituted to dissolve.
The state must inspire confidence and hope by instituting laws
which the subjects desire to obey; yet these laws must not be direct-
ed exclusively to the unreasoned level of desire prevalent in the
multitude. The solution of this apparent antinomy focuses the job
of legislative wisdom which must raise the citizens to a higher
understanding of the needs of the state, in fact, of the need FOR the
state, and of themselves as members of that commonwealth. Al-
though the good can be manifested on the lower Imver levels of desire,
the state cannot be satisfied with aiming its laws at this level, for
example, the satisfaction of the desire for sensual gratification. It
must rather work on this level as a means of bringing men to a
higher achievement. The laws must pramise promise to each what he de-
sires, for example, better physical conditions of life, but they must

11 Benedict de Spinoza: The Political Works, trans. A. G. Wernham (Ox- (üx"

ford, The Clarendon Press, 1958); A Treatise on Politics (PT), p. 317, Chap.
6, Sect. 4. G. Vol. III,
HI, p. 298, 1. 20-23.
 Spinoza and Law 277

THE CONCEPT OF CIVIL LA W 19

do this in such a way that obedience to the laws will bring men
eloser
doser to the true good. The laws of the state do not aim at destroy-
ing man's natural impulse but rather at allowing hirn to satisfy this
impulse to persevere in his being, which he could not do without
membership in a civil state. As Vaughan puts it, it is a question
of "enlightened as against blind self interest".1 2 If the citizens can
be brought to obey from an understanding of the benefits of law
rather than from fear of punishment, the state has, through its laws,
increased the harmony and the stability of the state, and has there-
by more c10sely
dosely approached the fulfillment of its purpose.
This is not to say that spiritual improvement or private blessed-
ness as true goods can or should be legislated. For Spinoza, law has
only to do with the contro!
control of extern al acts, not with the state of
mind or motivation of the citizen. It cannot be the job of the state
to make men moral or religious since the jurisdiction of legal autho-
rity does not extend to these spheres. Ultimately all that the state
can do directly is to make men obedient to its laws and this within
certain limits. "For the mind, so far as it makes use of reason, is
dependent, not on the supreme authorities, but on itself." 13 As
morality and religion have to do with the deve10pment
development of the mind
and character of an individual, his beliefs and level of understand-
ing, civillaw can have no direct control of this. Law can and should
structure society in a way that is conducive to the deve10pment
development of
religion and morality in the individual but its control cannot extend
over an individual's beliefs and opinions. If we take the distinction
between public and private spheres, law can be said to have con-
trol of any public,
pubIic, i.e., overt, act, inc1uding ethical or religious
'acts', but it can have no control of the individual in his private
capacity, i.e., his mental activities. "For by what rewards or threats
can a man be brought
brougbt to believe, that the whole is not greater than
its part, or that God does not exist ... or generally anything con-
trary to his sense or thought ... And to this head must likewise be

12 C. E. Vaughan, Studies in the History 01

of Political Philosophy (Man-
chester, The University Press, 1925).
13 The Chiel 0/ Benedict de Spinoza; A PoliticaL
Chief Works 01 Political Treatise, trans. R.
H. M. Elwes (N. Y., Dover Publications), Vol. I, p. 317, Chap. 3, Sect. 10.
G. Vol. III, p. 288.
278 Spinoza and Law

20 THE CONCEPT OF CIVIL LA W

W

referred such things as are so abhorrent to human nature, that it

regards them as actually worse than any evil, as that a man should
be witness against himself, or torture himself . . . or not strive to
avoid death, and the like ... ".14

D. OBEDIENCE TO LAW

From the point of view of the rights of the commonwealth, the

citizen has an absolute duty to obey its laws. Spinoza does not ex-
hibit the naivete of ignoring the fact that some of these laws might
be bad laws. Holding the criteria for judging laws in abeyance, it
is of interest to determine the source of this absolute duty of obe-
dien ce. The institution of a legal structure in astate is the means
dience.
to the achievement of the freedom of the individual, the develop-
deve1op-
ment of the powers of reason latent in human nature. By means me ans of
this structure, individuals are brought into contact with each other
as partners in a common
corumon endeavor rather than as antagonists seek-
ing their own gratification to the detriment of the other. "In the
civil state an
all fear the same things, and all have the same ground of
security ...".15
" .15
Each citizen of a commonwealth, it is true, will always seek his bis
own interest - according to Spinoza, a man has no other choice.
The important difference is that in a civil state each one's interests
are so closely
c10sely and irrevocably tied up with the others that by pur-
suing his own advantage he will further that of his fellow men. In
terms of the laws of the state this tbis means that each finds it to his
advantage to obey the laws - if only to avoid punishment - and
in so doing raises himself above the level of narrowly understood
self interest by the fact that his act of obedience strengthens the state,
maintenance of wbichwhich is to the advantage of all. In pursuing their
own advantage men will no Ion ger be as enemies but, as it were,
longer
as one mind acting in concert to establish the security and peace of
the state. For Spinoza this is the basis of individual freedom; "a

14 Elwes, PT, p. 304. Chap. 3. Sect. 8. G. Vol. III, p. 287.

15 Ibid., p. 302, Chap. 3, Sect. 3. G. Vol. III, p. 285.
 Spinoza and Law 279

THE CONCEPT OF CIVIL LAW

LAW 21
man (is) so far free as he is led by reason".1
reason".166 "Finally, the political
order is naturally established to remove general fear and to dispel
general suffering, and thus its chief aim is one which every rational
man would try to promote in the state of nature; though his efforts
in that state would be useless." 17 As each man seeks his preserva-
tion and self-affirmation he is led eloser to his true self, which is
reason. It is only in the civil state that reason can be developed.
Outside the civil state man, as his own guardian and protector, is
by circumstances forced to remain on the level of gratification of
his passions in order to satisfy the first level of his needs. According
to Spinoza, "When each man seeks most that which is profitable
to himself, then are men most profitable to one another", 18 because
each, in seeking his true advantage will endeavor to live according
to the guidance of reason. Spinoza states that "Whatever causes
men to live in harmony with one another, is profitable, and, on the
contrary, whatever brings discord into the State is evil."19 Thus the
individual finds that in the process of working towards his own
self-preservation he comes into contact with other men who con-
stitute an integral part of this endeavor.
However as a citizen of astate one is not in a position to decide
what is just or unjust, right or wrong, but must submit his will to
that of the commonwealth. "Obedience is the constant will to exe-
eute
cute what, by the general deeree
decree of the commonwealth, ought to
be done." 2020 This is the duty of a subject and the right of a citizen.
The state is composed of a group of men who have come together
for their own advantage and it is of ultimate importance for the
continuanee
continuance of that state that they each obey its dictates as rules ruIes
of life which they have accepted.
aecepted. The right of "being one's own
judge eeases
ceases in the civil state".21 The decrees of the commonwealth
must be taken to be the will of all, the dominion as guided by one
mind; thus "however iniquitous the subject may think the commOll-
eommon-

18 PT, op. ci!., In, p. 280.

cit., p. 295, Chap. 2, Sect. 11. G. Vol. III.
17 Wernham, PT, p. 289, Chap. 3, Sect. 6. G. Vol. In, III. p. 286, 1. 26-29.
18 E, op. cit., part 4, Prop. 35, Coll. 2. G. Vol. 11,
II, p. 233.
19 ci!., part 4, Prop. 40. G. Vol. II, p. 241.
E, op. cit.,
20 Val. In,
Elwes, PT, p. 314, Chap. 5, Sect. 4. G. Vol. III, p. 296.
21 cit., p. 302, Chap. 3, Sect. 3. G. Vol. III, p. 285.
PT, op. ci!.,
280 Spinoza and Law

22 THE CONCEPT OF CIVIL LA W

wealth's decisions, he is none the 1essless bound to execute them".22

them" .22
The subject has an absolute duty to obey the laws of the common-
wealth, to submit himself to the laws as if they were products of
his own will, to the furthest point of feasibility.
If the laws are evil to the extent that it appears more advan-
tageous to incur the force of the sanction than to suffer the conse-
quences of obedience, or, in the extreme case to disrupt the existing
form of the state by disobeying its commands, the man will be un-
able to obey the dictum. 23 23 At tbis
this point it is no longer a choice of
obeying or disobeying the law in question and the fact that the
citizen has a duty to obey is not relevant. The duty is however
absolute until this point: reason teaches that the commonwealth
can maintain peace only if its dictates are obeyed. It may be neces-
sary for the citizen to obey particular laws which he considers in-
iquitous if the state is to be maintained. Spinoza contends that the
advantages of the state should be understood to be of such magni-
tude that a man will judge it to his advantage to obey any laws in
order to preserve the unity and existence of the state. If one chooses,
by maintaining residence and citizenship within astate, to be a
subject of that commonwealth he has in so choosing incurred cer-
tain responsibilities which he must carry out if the state is to con-
H, under extreme conditions, the individual judges it to be to
tinue. If,
his advantage to forego
fore go the benefits of the state, he will be in a
position to choose to disobey its laws. He thereby declares himself
an enemy of the dominion and takes the consequences of individual
punishment, or in the extreme situation, instigates the disruption of
the existing form of the state.
In speaking of the state as one mind, Spinoza is not assuming
that there is total agreement regarding the legal enactments of the
state but is referring rather to the agreement of citizenship wh which
ich
all members have taken on themselves,
thernselves, and which entails ce ding
right of action to the authority of the govemment.
government. It should be
understood that advantages and dis advantages are the natural con-

22 lbid., p. 302-3, Chap. 3, Sect. 5. G. Vol. III, p. 286.

Ibid.,
23 It can never be the case that the citizen has a LEGAL right to disobey. It
would be a self-contradictory assertion to maintain that one was legally
Iegally
justified in disobeying a law.
 Spinoza and Law 281

THE CONCEPT OF CIVIL LAW 23

sequences of this affiliation and it is against reason to balk.
balk: at par-
ticular enactments which one might not approve. As indicated
above, the sovereign has the absolute duty not to allow the situation
to oeeur
occur where it is more advantageous for a subject to disrupt the
state than to obey its laws. "Contempt or breach of the laws ... (is)
not so much to be imputed to the wickedness of the subjects, as to
the bad state of a dominion." 24 There is a duty for the eitizen
citizen to
satisfy the expectations of the sovereign and a corresponding duty
for the sovereign to satisfy the hopes of the citizens, with a tadt
agreement to the effeet
effect that both the subjects and the sovereign
desire what is best for themselves qua members of the state. The
state must be organized so that what is to the advantage of the
leader is also to the advantage of his subjects. This situation,
Spinoza eontends,
contends, ean
can oceur
occur only when the state is guided by reason
seeurity of the state and of life. "A do-
with its laws aiming at the security
minion must . . . be so ordered that all, goveming
governing and governed
alike, whether they will or no, shall do what makes for the general
welfare; that is, that all ... shall be eompelled
compelled to live aecording
according
dictate of reason." 25 Laws should be struetured
to the dietate structured in a manner
that for each to realize his own des ire, he must will what is to the
interest of all.
If men were led solely
so1ely by reason they would understand it to be
to their advantage to maintain the commonwealth by general obe-
dience to its laws. In fact if men were 1ed led solely by reason there
would be no need for external control and, a fortiori, for the eom- com-
mand of laws since each would do his duty willingly. However, as
the multitude of men are governed more by passion than reason,
eaeh
each particular
partieular law must be couched
eouehed in terms that appeal to them
as desirable, notwithstanding the fact that obedience must also be
discussing law, is not as interested in
rational. Spinoza, however, in diseussing
the motives for obedience, whether enlightened or unenlightened,
as in the fact of obedience. "It is the constant disposition to obey,
not the motive for obedience, which makes a man a subject." 26

24 PT, op. eit., p. 313, Chap. 5, Seet.

Sect. 2. G. Vol. BI, p. 295.
25 ap. eit.,
PT, op. In, pp. 297-298.
ci!., p. 316, Chap. 6, Seet. 3. G. Vol. IU,
28
26 TPT, Chap. 17. G. Vol. IH,BI, p. 202, 1. 2-3. Original translation.
282 Spinoza and Law

24 THE CONCEPT OF CIVIL LA W

However in order to make obedience to a set of laws truly profitable

the laws must be rational wh ether or not the multitude understands
whether
them as such.
Spinoza contends that it is unquestionably better for subjects to
obey the laws out of reverence and respect for them or for the
personage of their promulgation than to obey the laws Iaws from fear
of the consequences of disobedience. The latter condition wouId would
not be astate of peace but merelymere1y the absence of war. The state
will be much stronger in the former case and the citizens freer when
they are obedient to the laws from an understanding of their right-
ness rather than submissive from fear of their penalties. This situa-
tion can occur
oceur only when the laws are rational, that is, in accordance
with the universal truths of human nature, and thc the subjccts
subjeets are con-
vinced of thc
the utility of the laws.
Since the strength, and for Spinoza, the goodness of astate is
proportionate to the rationality of its dictums, astate can bccome
beeome
weakened to the point of impotence by the institution of unreason-
able laws. In such a situation the state can be said to do wrong -
at the point where it is no longer possible for men to ehoose choose to
obey the laws beeause
because obedience would initiate worse conditions
than suffering the penalties attached to the iniquitous laws. How-
ever "it is very rare for sovereigns to issue cornrnands
commands which are
utterly foolish, for their main task - if they are to safeguard them-
sovereignty - is to plan for the common good
selves and retain their sovereignty-is
and direct everything by the dictate of reason." 27 If this situation
were to occur,
oceur, obedience would no longer be required or expected
because it is in point of fact impossible. Men as noted above can-
not act against that impulse so fundamentally ingrained in them to
seek their advantage; they cannot elect to do that which is against
their will. It is not necessary then for Spinoza to speak out against
manifest tyranny in moralistic terms - for hirn such a situation,
viz., the enforcement of laws totally averse to human need and
desire,
des ire, need not be denounced in theory as it is in practice impos-
sible of achievement. It is as if the natural laws of human nature
guarantee that the individual will not be coerced against his will.

27 Wernham, TPT, p. 135, Chap. 16. G. Vol. III, p. 1964, 1. 12-15.

 Spinoza and Law 283

THE CONCEPT OF CIVIL LAW 25

As Cairns puts it, there is an "inescapable connection between po-
wer and its proper exercise". 28

E. THE CONNECTION BETWEEN THE VALIDITY

V ALIDITY AND
EFFICACY OF A LAW

It is generally conceded that, if a legal system exacts no, or very

minimal, obedience from the citizens who are subject to its laws,
at this point of negligible efficacy the validity (existence) of the set
of laws is called into question. Law, no matter how its nature is
conceived, is instituted to control behavior and if it has a negligible
effect on conduct, it can no longer be said to function as law. Such
a code would be impotent and not considered valid for the partic-
ular territory and subjects at the time in question.
Spinoza considers the more interesting question of particular
laWs which in practice have negligible control of conduct. He con-
cludes that the validity of a law is dependent on whether or not it
is obeyed, its efficacy. If the command of a 1egislator
legislator is not obeyed
by the multitude it is not a law even if it is enacted and promulgated
in accordance with the regulations of legal procedure. This point
recognizes that the function of law is to control human behavior
as both a plan of life and a command imposed on subjects. If a law
does not achieve adequate control of behavior it is, as it were, paper
legislation, rather than an intrinsic part of a valid legal system. This
re1ates to Spinoza's notion of power as essentially characteristic of
relates
nature. Significant impotence destroys the nature of anything -
"But the universal power of nature as a who1ewhole is simply the power
of all individual things combined." 29 If anything lacks the power to
function according to its essential nature, it can no longer be said
to participate as the SAME thing in reality. This is as true for an
individual law as it is for an entire legal system, as true for an in-
individuallaw
dividual man as it is for the state.
Connected with this point is Spinoza's repeated insistence that

28 Huntington Cairns, "Spinoza's Theory of Law", Columbia Law Review,

Vol. 48 (Nov. '48), pp. 1032-1048.
29 Wernham, TPT, p. 125, Chap. 16. G. Vol. III,
IH, p. 189, 1. 21-23.
284 Spinoza and Law

26 LA W
THE CONCEPT OF CIVIL LAW

the "multitude .. .... is guided, as it were, by one mind". 30 Thus laws

are taken in some sense or other as the expression of the common
mind, or, in Spinoza's idiom, thc common will. If there is general
lack of obediencc
obedience to a particular law, it, so to speak, announces
itself at variance with the will of the dominion and can no longer
be taken as its guide, that is, as a law of the dominion. These points
are at bottom compatible with Spinoza's notion of law as issuing
from the will of the sovereign only if it is recognized that the ulti-
mate criterion of the validity of a law rests on its acceptance by the
multitude subsequent to its promulgation by the sovereign author-
ity. As argued in the next section, not every will of the sovereign is
a valid law.
From the above it is dear c1ear that the laws which will be disobeyed
en masse are those which do not appeal to the multitude as advan-
tageous. Nothing is truly a law unless it is tacitly approved by the
multitude by virtue of their obedience to it. The true basis of this
situation and the important distinction between bctween Spinoza's and
Hobbes' notion of absolute sovereignty can be appreciated only
after consideration of the thc notion of natural rights in Chapter II. 1t
It
can be understood here that law is not anything whatsoever that is
c1aimed by the sovereign to be law without further consideration
daimed
of whether the subjects recognize the decree as binding. The criteria
to determine whether an enactment is a law cannot be purely formal
inc1ude consideration of WHA T the command expresses
but must indude
wh ether it is in fact obeyed to a reasonable extent. The enact-
and whether
ment may be abortive and not warrant thc name law which is re-
served forfar those commands of the state that function as regulative
of behavior. The fact that rewards and penalties are required to be
attached to the laws does not alter this condition. Spinoza does ac-
cept the necessity of adding inducements to thc the substance of laws
insofar as the citizens do not understand the true good of the state
and their place in it. Yet he maintains that there are some things,
viz., those things against human nature, that the citizens could
never be enticed into doing no matter what inducement is offered.
If it is attempted to legislate on these matters, the result for Spinoza

30 Elwes, PT, p. 301. Chap. 3, Sect. 2. G. Vol. III, pp. 284-285.

 Spinoza aand
ndLaw 285

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

Spinoza's notion of law as a command must be considered with

respect to this relation between validity and efficacy. Law is taken
as the expressed will of the supreme authority in the common-
wealth, a decree stating the desire
des ire that certain extern al acts be done
or omitted. If a sovereign issues a particular decree expressing his
will, it is not however ipso
ipsa facta a law. "A monarchical dominion ...
must be ordered so that everything be done by the king's decree
only, that is, so that every law be an explicit will of the king, but not
every will of the king a law." 31 31 The will of one man is 'inconstant';
that is, it is not the case that the sovereign always wills that which
is best for the dominion and if his decree is sufficiently repugnant
to reason and nature, the fact of his des ire is not equivalent to the
desire
enforcement of the decree. In order for a decree of the supreme
authority to be a valid law, in addition to the mechanies
mechanics of legal
procedure, it must appeal to the multitude as an advantageous
regulation. The situation is different in an aristocracy in which a
council passes laws since in this case there is not the problem of the
'fluctuating and inconstant' will of one man. With a "sufficiently
numerous council ... its every explicit will ought to be law". 32 This
law".32
dominion is doser to an absolute dominion, that is, dominion held
by the whole people. Although an aristocratic dominion is not in
fact absolute, it is best if it functions as absolute, which it can do
only by eliminating a11 all reasons to fear the multitude. This aga in
again
requires that the multitude be kept satisfied by being subjected only
to laws wh ich they consider advantageous, although they are not
explicitly consulted in the passage of particular laws.
In addition, a law can not be at variance with what Spinoza terms
'the foundations' of the dominion, the constitution, written or un-
31 PT, ap. eil., p. 328, Chap. 7, Sect. 1. G
G.. Vol. III, p. 308.
32 Ibid., p. 347, Chap. 8, Sect. 3. G . Vol. III, p. 325.
286 Spinoza and Law

28 THE CONCEPT OF CIVIL LAW

written, of the state. These so-called 'eternal decrees' of the sove-

reign cannot be transgressed or superseded by subsequent decrees,
and if this is attempted the subsequent decrees do not count as valid
laws. This is not merely the built-in guarantee of a particular con-
stitution or a particular system of common law but is a necessary
condition of the stability and permanence of vf any state. For Spinoza,
all1aws; "It is in no way repugnant to
the sovereign is not above alliaws;
experience for laws to be so firmly fixed fixe<! that not the king hirnself
hirns elf
can abolish them." 33 Not only is it agreeable with experience but it
is necessary for the security of the dominion that the sovereign be
subject to the fundamental laws of the commonwealth. Spinoza
recognizes here the distinction between laws which are fundamental
to the continuance of the form of the state and 'secondary' laws
which must be in harmony with them. The fundamentallaws can-
not be anything the sovereign chooses; they also are subject to rati-
fication by active obedience on the part of the citizens. The funda-
mentaliaws,
mentalIaws, for example, the constitution, are, as it were, the form
of life of the state, and must, if the state is to have stability, be firmly
rooted in the customs of the people. The particular laws, while they
are dependent on the will of the sovereign, cannot be the product
of an arbitrary will. The sovereign does theoretically have the posi-
tion to institute whatever he pleases as law but it is inevitable that
certain consequences will follow, the most important being the des-
truction of the state and of the sovereignty if it is attempted to tv
institute iniquitous laws or laws contrary to the fundamentallaws.
This theoretic ability is, of necessity, limited in actual practice by
the needs and demands of the state.
Thus for Spinoza we do not have the simple equation of law with
the command of the sovereign in the sense of law being anything
which the sovereign orders. At the same time the law of the state
need not be issued by each sovereign in succession. Spinoza speaks
of fundamentallaws which are 'eternal', that is, they are regulations
which are in force throughout successions of sovereigns. Since these
fundamental laws define the structure of a commonwealth, they
ought to be accepted and enforced in turn by each sovereign in

33 PT, ap. cit., p. 327, Chap. 7, Sect. 1. G. Vol.

op. ci!., Vol.lII,
IH, p. 307.
 Spinoza and Law 287

THE CONCEPT OF CIVIL LAW 29

order to maintain the stability of the dominion.
The sovereign, in addition to laying down the law, is the sole
Ieft to the indi-
interpreter of its meaning and application. Were it left
vidual citizen to interpret the law this would be tantamount to
allowing hirn to make law since he could interpret the words ac-
cording to his own will and purpose. It is also, and for the same
reason, the duty of the sovereign to appoint jurists as his represen-
tatives to administer the law.

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-

34 Chap. 3, Sect. 13. G. Vol. III,

PT, Chap. 111, p. 290, 1. 7-8. Original translation.
288 Spinoza and Law

30 THE CONCEPT OF CIVIL LA W

W

ing only insofar as relevant conditions remain constant was intro-

duced into international law by Gentili near the end of the 16th
century. It was known as the clausula rebus sie stantibus, and
originated in canon law, having a private province.3 5
The law of war and pe ace, or internationallaw
peace, international law as it was design-
ated by Grotius, is rooted in that fundamentallaw of human nature
which disallows men from choosing or remaining in a situation
which they do not find to their advantage. Since in Spinoza's time
there was no developed notion of a legal code which embraced a1l all
nations and to which
wbicb all bad
had acknowledged allegiance, he did not
consider that the breaking of an agreement was an act of injustice
or disobedience but rather
ratber an inevitable consequence at the moment
when advantage had ceased. In fact, each state has the duty to
consider the good of its citizens as more compelling than any inter-
national agreement. This conc1usion
conclusion does not deny the possibility
or value of international law, but is ratber,
internationallaw, rather, given Spinoza's prin-
ciples, a realistic appraisal of its foundations and limits. If Spinoza
had conceived of nations as related in an international community
rather than as independent states at war with eacbeach other, it is likely
he would
the be wou1d have been more amenable to the notion of the supreme
binding power of international agreements. Spinoza appears to dis-
regard the existence of peaceful relations not based on treaties and
also of customary practices between nations, as, for example, the
recognition of permanent foreign legations. His conception of the
international community as composed of independent units did not
lend itself to the recognition of such non-legal practices. The treaty,
as the sole basis. of international understanding would not tend to
introduce the trust requisite for extra-legal communication. 36

35 Arthur Nussbaum, A Concise History 01 0/ the Law 01

0/ Nations (New York,
Macmillan Company, 1954), pp. 94-96.
36 circumstances of nuc1ear threat it is of in-
With respect to the present circurnstances
terest to note in the policy of statesmen an increasingly explicit recognition
of two possible solutions to an international crisis; either legal control and
inspection of weapons or an actual structuring of the situation which guaran-
tees no advantage to aggressive policy, e.g., counterforce tactics. It is this
latter point which is reminiscent of Spinoza's insistence that in the final ana-
lysis national advantage is the determining factor in poHcy
policy rather than a
supposed sanctity of treaties or a supposed obligation to the international
community.
 Spinoza and Law 289

THE CONCEPT OF CIVIL LA W

W 31

H. LAW AS A MEANS OF THE STATE

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

32 THE CONCEPT OF CIVIL LA W

W

passions, whose instrumentality is reward and punishment, rather

than the level of reason. It is for Spinoza an indubitable truth of
human nature that men who have achieved only partial rationality
must be appealed to on that level and he has no patience with poli-
tical theories which speak of men being led by benevolent and
rational motives. Not only are such theories intellectually false but
they lead in practice to abortive attempts at ruling nations. Men can
only be appealed to on the level on which they are if the appeal is
to be more than empty words.
Given men as they are, the state must make it to the advantage of
each individual to obey its dictates and at the same time the laws
must be such that actual obedience will be conducive to the secur-
ity and wellbeing of the state. Spinoza holds that it will always be
the case that obedience to the laws of the state is to a man's ad-
vantage since without the existence of the state men are in constant
conflict and thus unable to achieve those conditions necessary for
their preservation and security. This is not to say that each state
is in each case the best it can be in all respects, but only that any
state is better than no state, any laws better than no laws.
Typically human life is not supportable in a totally unordered
condition. For Spinoza this is a truth of human nature and an
explanation of the origin function and continuance of the state.
The important question for political theory is not to justify the
existence of the state as if it were something unnatural and imposed
without rationale, but rather to determine the best type of state.
Whether the state is good or bad, however, its citizens can never
possess a legal right to disobey the supreme authority, although the
actual authority of any sovereign is, by natural necessity, limited
in scope. The different question of the natural right of the citizen
with respect to the sovereign and of the sovereign with respect to
the citizen will be taken up below.
It is not necessary for Spinoza to rely on the fiction of an original
contract to explain the existence and the rights of the state. Men
enter into that social organization only because they understand it
to be to their advantage; and they remain subjects of the state from
the same understanding. If they did not so feel, no original contract
or promise could bind them to obedience because men are simply
incapable of doing that which does not appeal to them as advan-
 Spinoza and Law
Law 291

THE CONCEPT OF CIVIL LAW

W 33
tageous. Of course it can be said that men could be brought to
appreciate the advantageousness of keeping a promise - which
seems to have been Machiavelli's point - but this simply extends
rather than proves the argument. The advantage gained from keep-
ing a promise is referable to one's reputation as a member of a
state, and if the value of that membership is what is in question,
the end is incommensurate with the means.
Thus if it is taken to be to one's gain to disobey the laws of the
state at the risk of its destruction, this act does not violate an
original pact but is rather the inevitable response to the actual
foundation of the state. A succesful rebellion shifts the power and
right of sovereignty and thereby institutes its new law. The fact that
Spinoza does not advocate rebellion is, it would seem, for different
reasons than that it is unjustifiable. The chaos wrought in a social
community by the destruction of its legal and power structure is
in most cases not met by gain in the change of government. The
causes or conditions of discontent will still be present notwith-
government is instituted. It is the causes
standing the fact that a new govemment
of discontent that must be treated and this can be done as weIl by
the existing govemment
government once the dan gers consequent on the dis-
dangers
satisfaction of the people are articulated.
Perhaps it can be said that for Spinoza it is the state, composed
mler and subjects, which is supreme rather than the ruler
of the ruler
or sovereign (except of course where the entire people hold so-
vereignty). Law then, as intrinsic to the nature and functioning of
the state, is the expression and repository of this supremacy and in
this posture is superior to subjects and sovereign alike. Given this
compeIling men to do what is against
formula, the impossibility of compelling
their desire can be understood since it would be tantamount to the
state, that is, the sovereign and the citizens, compelling themselves.
In Spinoza's discussion, as reviewed above, there are of course
other and more fundamental reasons why such compulsion is im-
possible. However it can be seen here that the final force behind the
laws is the will of the people who are, on any stand, incapable of
willing that which is against their will. Although this force may be,
and often is, centralized in a so-called non-representative govem-
ment, law will not achieve the requisite efficacy to validate itself if it
does not account for the will of the people.
 [15]
NATURAL LAW, CIVIL LAW, AND
INTERNA
INTERNATIONAL
TIONAL LAW IN SPINOZA

Manfred Walther*
ManJred

I. Two FUNDAMENTAL REQUlREMENTS FOR ADEQUATEL Y

SPlNOZA 's PHILOSOPHY OF LAW
UNDERSTANDING SPrNOZA'S

A. The Crucial Distinction Between "Potentia" and "Potestas"

"Polestas"

The English language erects a great impediment against adequately

understanding Spinoza's philosophy of law because it renders the
notions of "potentia"
''potentia'' and ''potestas'' both as "power."l But Spinoza's
philosophy of law is entirely built upon the distinction between
"potentia" and "polestas."
''poles/as.'' He thus speaks, on the one hand, of the
''potentia corporis" (the power of the body) to cause a change in the
"potentia
relation of powers according to the general laws of nature, and of the
mentis" (the power ofthe mind) to combine and correct one"s
"potentia menüs"
ideas in aastriet
strict concatenation
eoncatenation of ideas. And he says, on the other hand,
that it is not in our "polestas"
"potestas" to make a eorreet
correct use of our reason (TP
2/6) and that someone has another man in his ''potestas,'' if he either
keeps hirn in chains or deprives hirn of a11 all means to protect himself
hirns elf or
flee, or that he directs hirn by infusing fear or hope in hirn (TP 2/1 211 0).
The common denominator of a ''poleslas''
''potestas'' which a man has in respect of
someone else is that he disposes of the conditions of another"s
comportment.
cornportment. That is why I translate "potentia"
"potent ja" as "potency."
With human beings, there is, as a limiting case, a maximum both of
power and of potency: On the one hand the "power of the multitude"
("potentia multitudinis") is the limiting case of a perfect
("polentia perfeet unifieation
unification of
all
a11 the single powers of a number of individuals living together, and, on
the other hand, the "highest potency" ("summa potestas") is the potency

* 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

658 CARDOZO LAW REVIEW [Vol. 25:2

to direct the comportment of all subjects living together.

Power is always directly expressive while potency always refers to
the conditions (inner or outward) of the comportment of others which is
thus controlled, mainly by influencing their anticipations of the
reactions of others, for example by the imposition of mIes of conduet
conduct
under sanctions. That is why Spinoza always speaks of the power of
God and nowhere-unless sketching opposite views--of God's
direetive
directive potency, because God's power is the power of all things in the
etemal laws of nature, whereas he does not
world together under the eternal
give any directives for their comportment.
comportrnent.
The relation between the "potestas," the acting power, of men and
the directive potency of the "summa potestas" by the instalment and
enforcement of mIes of conduct is the central issue of Spinoza' Spinoza'ss
political and legal theory. And Spinoza's main concern in his
philosophy of po li ti es and of law is to show that there is always more
politics
power floating in a soeietysociety than can be controlled by the highest
potentates, and unfolds the implications of this fact for the stability of
states and the weIl-being
well-being of individuals.
ofindividuals.

B. The Relation of Law and Right

Following the modern

modem line of the philosophy of law since Late
Scholasticism,
Seholasticism, Spinoza uses the tenn "right" (ius) generally in the sense
of what we eall "subjective right." Central to understanding his legal
thought is that for hirn the relation of right to law is not that of mutual
exclusion, but that of perfect
perfeet correlation. "The word law, in the
absolute sense, means that according to which each individual thing ...
act( s) in one and the same fixed and determinate manner"
act(s) mann er" (TTP 4:
57,23-26 / S 101).2
10 1).2 Every man, and everything as weIl,
well, has as much
right as is detennined by the respective laws (TP 2/4). This relation of a
strict correspondence of right and law holds for all stages, from natural
law to international law. In other words: Only those mIes according to
intemationallaw.
which something or someone really acts, aets, i.e. which are effective, are
laws; and a right is not a mere claim to something but the real power to
do something.

2 In quoting from Spinoza, I foIlow,

follow, as far as the TRACTATUS POLITICUS [hereinafter "TP"]
is concemed, the translation in: SPlNOZA
SPINOZA ON FREEDOM OF THOUGHT: SELECTIONS FROM
TRACTATUS THEOLOGICO-POLITICUS AND TRACTATUS POLITICUS (T. E. Jossop ed. & trans.,
Mario Casalini 1962); translations from the TRACTATUS THEOLOGICO-POLITICUS [hereinafter
'TTP"] are laken
taken from BARUCH
BA RUCH SPfNOZA, THEOLOGICO-POLlTICUS (Samuel Shirley
SPlNOZA, TRACTATUS THEOLOGICO-POLITICUS
trans., E. J. Brill 1989). References are to the Gebhardt edition of the Latin text and !hen
then to the
translation used. Where the translation appears to me 10 terminologically inadequate, I1 replace
to be terrninologicalty
my own.
itby myown.
 Spinoza and Law 295

2003] NATURAL, CIVIL, AND INTERNATIONAL LA W 659

Ir.
11. NATURAL LAW AND CIVIL LAW

A. Two Kinds of
01Law and the Ontological and Epistemological Status
Ontologiealand
ofHumanLaw
olHumanLaw

Spinoza distinguishes between two kinds of law: The "fixed and

determinate manner" of acting depends "either on Nature's necessity or
("placito")" (TTP 4: 57,26-27!
on human decision (''placito'')'' 57,26-271 S 101). To speak of
human decision as the generative cause of a law does not contradict the
fact that "in an absolute sense, all
a11 things are determined by the universal
laws of Nature to exist and to act in adefinite and determinate way"
(TTP 4: 58,7-81 S 100) for two reasons:
a) Man being apart of nature, some laws are justly called ca11ed man-
made because they follow, although necessarily, from human nature,
they are express ions of the specific power of man, and that is why we
can justly say that their sanctions depend on the decision of man. In
other words: Ontologically, human (civii) law formation can be
adequately understood as a necessary and therefore natural product of
human power determined by those laws of nature which are specific to
human beings. I will return to this point later.
b) A causal explanation of something has always to refer to its
proximate cause, which in this case are human beings, and as we have
no real knowledge of the "actual co-ordination and interconnection of
things," we must "consider things as contingent" (TTP 4: 58,23-27 1 S
101-102).
10 1-1 02). In other words: Lacking knowledge, it is pragmatically
necessary to perceive of aspace for decisions. This is Spinoza's
determination of the epistemological
epistemoJogical status of the sentence
senten ce that human
law making underlies human decision.
The absolute sense ofthe term "law," i.e., its descriptive sense, is a
late application by analogy of its original sense, which is prescriptive, to
natural things. The term "is used to mean simply a command which
men can either obey or disobey, inasmuch as it restricts
restriets the total range
ofhuman
of human force within set limits and demands nothing that is beyond the
capacity of that force" (TTP 4: 58,30-33 1/ S 102). Thus the seemingly
adequate genetic defmition
definition is that itil is "a rule uf life which man
prescribes for himself or for others"-Spinoza here alludes to the
difference of moral and political norms-"for some purpose" (TTP 4:
58,34-351 S 102). In other words: All these laws are man-made, and
they are posed as means for achieving a certain goal, which is the
accumulation of the power of human self-preservation and self-increase
in a world that is not pre-established to meet human needs. This law
making productivity is, therefore, nothing but an expression of human
nature under given natural conditions. The distinction between human
296 Spinoza and Law

660 CARDOZO LA W REVIEW [Vol. 25:2

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).

B. Natural Law and Natural Right

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).

C. The Generation 0/Human = Civil Law

The starting point of Spinoza's theory of the generation of civil

laws and their corresponding civil rights is his observation that in the
state of nature-absent a11 social relations-the extension of an
individual'ss natural rights is elose to nothing hecause
individual' because al1 are blind, ii.e.
.e.
passionate, striving for his or her own preservation is confronted by the
same passionate striving of others and by the power of the (other) things
in nature. Thus, in the state of nature, men are enemies to each other
domina ted by fluctuating passions, they experience one
because, being dominated
another predominantly as obstaeles to gaining and securely using the
objects they desire. But "O)f
"(i)f two men come together and combine their
strength, they can do more together, and consequently (have) more right
over nature, than either has alone, and the more the men can so
combine, the more right will they possess collectively" (TP 2/13).
Now, if it is only by cooperation (in its description Spinoza avoids all
terms of intentionality) that men can augment their power to act against
the rest of nature, it follows that "the right of nature that is peculiar to
the human race," in that it enables men to conduct their lives according
to their own plans "is scarcely conceivable except where men have
rights collectively" (TP 2/15).
Human law can thus be understood as the establishment of the
 Spinoza and Law 297

2003] NATURAL, CIVIL, ANDINTERNATIONALLAW

AND INTERNATIONAL LAW 661

conditions of cooperation and thus of augmentation of man's power to

act inside a nature that does not care for far the requisites of his self-
preservation. But as this function ofhuman
of human law is not apparent to most
men, "in order to constrain a11 men alike legislators have wisely devised
another motive for obedience, far distinct from that which is necessarily
entailed by the nature of law"-in promising "what most appeals to the
masses, while threatening transgressors with dire retribution" (TTP
CTTP 4:
58,35-59,7/ S 102). Thus the imposition or imperative theory of law
being. 1 read this as a critique of all
came into being, a11 theories of prescriptive
law as given either by divine commands or by divinely legitimated
superiors, at any rate as something imposed on them from above or at
least from without.

D. ofthe Supreme Directive Capacity

The Cause and Limits oithe
Potestas")
("Summa Potestas ofthe
") oi the State

If the augmentation of human power can be achieved only by

co operation, the "power of the multitude" which "acts as it were with
cooperation,
one spirit" (cf TP 4/1) is the tme, i.e. the genetic definition ofthe state.
And he or ar those to whom the management of this united uni ted power is
entmsted by the multitude, has or have the supreme potency (TP CTP 3/17).
From this it fo11ows
follows that the very existence of such a potency
permanently rests on the consent, or at least on the acceptance, of the
subjects to follow those directives. But as the natural laws of human
nature do not lose their determining quality for the agency of men even
inside a civil society, tht:
the dirt:ctiVt:
directive pott:ncy
potcncy of
uf the rulers, i.c.
i.t:. their right
to direct the others, and thus the specific form of the state are weakened
in the measure that those directives diminish this willingness to obey the
laws. No constitution can guarantee its own effectiveness, i,e. i.e. its own
legal character (TP 4/6). Only if this willingness is reproduced in the
way the directive potency is enacted, is the potency itself reproduced.
That is to say that there exists a circular relation between the
power of thc subjects who build thcir their prefercnces
preferences and makcmake their
decisions under the enduring determination of the laws of human
nature-a power from which they cannot be alienated at all--onall~n the one
hand, and the directive potency of the miers mlers on the other. Unlike the
former, the latter can never be brought to astandstill. That is why the
legal permission of free speech stabilizes astate, given that the limits
between mere speech and a speech act are not transgressed (cf TTP 20),
and why revolution in the form of the state poses no problem for
Spinoza's theory of civil law; in the latter case the power of the
multitude, acting as if guided by one spirit, sirnply
simply goes in another
direction that what the rulers
mIefS had rulers
mlers prescribed, and thus a new
298 Spinoza and Law

662 CARDOZO LA
LAWW REVIEW [Vol. 25:2

poteney-power relation comes into existence (TP 612).

potency-power

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

devclopment of what folIows, see Manfred Walther, Politische und

3 For a more detailcd development
ethische Freiheit oder Spinozas Dialektik der Freiheit, in ETHIK,
ETHIK. RECHT lIND FREIHEIT BEI
89·103 (M. Senn & M. Walther eds.,
SPINOZA 89-103 ecls., 2001).
4 I have dealt with the transfonnation of the traditional natural law theories enacted by
Spinoza in my article Manfred Walther, Die Transformation des Naturrechts in der
Rechlsphilosophie Spinozas, in I SroDiA
Rechtsphilosuphie STUDlA SPINOZANA 73-104 (1986) [hereinafter Spinoza
Spinoza's
's
Philosophy of
ofSociety]
Society].
 Spinoza and Law 299

2003] NATURAL, CIVIL, AND INTERNATIONAL LAW 663

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

In the literature on the history of intemationallaw,

internationallaw, Spinoza is often
aecused of being one of the few who disavowed the very existence of
accused
international 1aw.
law. In fact, his doctrine is much more subtle and has
much to offer even to contemporary discourse. 5
For the same reasons from which it follows that there are relatively
effective civil laws within astate, there are no such laws regulating
inter-state relations: Because of his incapability to preserve himself
hirnself
without the support of others, the individual has no choice but to
"leave" the state of nature, i.e., to cooperate with others and thus to

5 A brilliant account of Spinoza's philosophy of international law in which the surprising

affmity of Spinoza with Kant is explained, is given by Francis Cheneval, Spinozas Philosophie
affinity
der internationalen
in/ernationalen Berziehungen, in ETHIK, RECHT UND POLITIK 195-205 (Marcel Senn &
Manfred Walther eds., Schulthess 2001).
300 Spinoza and Law

664 CARDOZO LA W REVIEW [Vol. 25:2

become dependent on the directives of the "summa potestas"; that is

why man lives "always already" in some sort of community. But "in so
far as astate can care for itself and can protect itself from being
suppressed by another state," insofar as there is no "impediment to
perform what it wants to perform," it stands on its own right, i.e. can act
according to the laws of its nature alone. Only "insofar as it fears the
power of another state or is impeded by it to perform what it wants to
perform or at last needs its help for its own preservation or increase," it
is held to accommodate to the powers of other states and is thus no
longer "sui iuris" (TP 3/12). This is why all inter-state contracts have
their legal capacity only as long as astate fears a disadvantage from
breaking it or hopes to be better ofby keeping it. All such contracts rest
on the condition of "the previous circumstances given." If the
circumstances change, and with them the a state's calculation ofbenefit,
the contracts become void. And this can be known by all contractors as
an implicit condition of all inter-state contracts because "the welfare of
its own state is the highest law" (TP 3/14).
But the law of nature according to whichwh ich those who unite their
powers have more power and thus right together than each for itself,
opens a perspective to peace: "The more states make peace contracts
with each others, the less each one is to be feared by the others, or the
less potency each has to make war" (TP 3/16), the less it stands on its
own right and is held to accommodate to the common will of the
confederates. From this doctrine we can infer two insights:
a) The more single states have to fear from others or can hope to
gain by cooperation, i.e., the less they stand in their own right, the more
probable it is that they will form federations that are stable. This is the
very law ofthe formation ofthe United Nations.
b) As long as there exist states that exceed others considerably in
power and are therefore "sui iuris," there will be no reliable, i.e., l.e.,
effective internationallaw.

IV. FINAL REMARK

FINALREMARK

Considering inter-state relations as power relations helps us

understand the conditions that underlie the formation of every human
law that deserves that title. In general: Only if, and to the degree that,
the single state's power to continue in existence and to flourish,
essentially depends on the cooperation of and coordination with (all or
most) other states, international law that deserves that name can
develop--just as it is this lack of any alternative to accommodating to
the conditions of cooperation for the individual's survival, security and
flourishing inside hislher society which is the cause of the effectiveness
 Spinoza and Law 301

2003] NATURAL, CIVIL, AND INTERNATIONAL LAW 665

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.

SPINOZA'S contribution to international law does not exceed

one thousand five hundred words,l and its direct influence on the
science of international law in the following centuries appears to
have been altogether negligible. Von Ompteda,
Ornpteda, the first scientific
bibliographer of international law, rnentions
mentions hirn, amidst some
arnidst sorne
indignation at his doctrine,2 in his enumeration of post-Grotian
writers, but it is obvious that the reference is one for the sake of
completeness
cornpleteness only.3 He assigns to hirn a place even inferior to
that occupied by Robert Sharrock, an author who wrote a few
passages on the law of war in his exposition of the law of nature,
but whose chief rnerit
merit lies in championing
charnpioning Boyle's scientific dis·
dis-
coveries and
alld in having published a treatise on the Propagation and
Improvement of
Improvernent 01 Vegetables by the Concurrence of 01 Air and Nature
(1669). By assertillg
asserting that internationallaw owes to Spinoza next
to nothing Ompteda
Ornpteda was not merely
rnerely giving vent to his disapproval
of Spinoza's teaching. For there is no evidence to show that, with
the possible exception, to be discussed later, of Pufendorf and
some
sorne writers of rninor
minor importance,
irnportance,44 international lawyers knew
of his existence, or, if they knew, that they cared to quote or to
refute hirn. Bynkershoek, his countryman,
countryrnan, while writing exhaus-
tively ö5 on a subject on which Spinoza's views were not only
1 Eyen this is a liberal computation
cornputation considering that what he said on this subjeet
subject in
the third chapter of the Politieal
Political Treatise (cited here as P.) is largely arepetition ofthe
of'the
view previollsly
previously expressed by hirn in the sixteenth chapter of the Traetatus
Tractatus Theologieo-
Theologico-
Politicus (eited
Politieus (cited here as T.P.). Spinoza was born in 1632; he died in 1677.
2 LitteTatur natürlichen als positiven Völkerrechts (1785),
Litterat"r des gesammten, sowohl natüTlichen
p.265.
a3 Ompteda's own words on the subjeet rnay usefully be quoted : "Among other
subject may
philosophical and theologieal paradoxes, he also expressed SOme
philosophieal some altogether detestable
opinions on international law. He wrote namely a Theological-Political
Theological.Political Treatise in
whieh he attempted to undermine bothnaturallaw
bothnatumllaw and the law ofnations.
of nations. With regard
to the first he rnaintained
maintained that according
aceording to naturallaw a man may do everything tllat that
is in his power. By applying this view to relations between states Ile he did not hesitate to
hold tbat
that astate may, if it is only strong enougll,
enough, attaek its neighbours, and also, if it
thinks it to be of advantage, dissolve at will its treaties of alliance and assistance. And,
in order to show how far an otherwise sensible tIiinker tliinker maybe led astray by the desire
to propagate no\'elties,
no,"elties, I shall eite the very words in whieh
which he puts forward those
shameful doctrines."
4 Cf., for instance, Neues Systema des Rechts der Natur (17540), p. 270.
instanee, J. J. Schmauss, Neucs
5 Qtul(stiol/CS Jllris Publici
QUl/(iitiol/CS JIITis IJ, eh. 10.
PubTici (1737), 11,
304 Spinoza and Law

90 YEAR BOOK OF INTERNATIONAL LA\Y "V

diametrically opposed to his own, but also elear
diarnetrically eIear and ernphatic,
emphatic,
ignored hirn completely. His views on international law shared
the fate of his political
politieal theory which was totally overshadowed
by the acute
aeute controversy
eontroversy centring round his philosophieal and
theological doetrines. 1 The nineteenth century,
eentury, during which much
rnueh
of the prejudice surrounding his teaching was swept aside, could eould
not, in the very nature of things, bring any appreeiable change in
this particular respect.
respeet. There was no prejudice to be overcorne
overcome
as far as his international doctrine
doetrine was concerned. As it happened,
the worst that eould
could be said about it was not far off the mark. No
wonder that text-books do not refer to him and that he has
remained unknown to the student of internationallaw. 2 On the
other hand, those of his adrnirers
admirers who were engaged in expounding
his politieal
political theory could not weIl pass over the ernbarrassing
embarrassing
utteranees, and, espeeially
utterances, country, attempts were made
especially in this eountry,
to put on the much denounced passages a construction
eonstruction calculated
caleulated
to vindicate for them some semblance of inherent accuracy.3
aceuracy. 3 It
even came to pass that a very competent commentator of Spinoza,
discussing his relation to internationallaw, aIlowed
while diseussing allowed himself
to be led astray by an inaccurate translation of a crueial
crucial passage
in the Political Treatise and to maintain, on the strength of it,
that Spinoza recognized
reeognized an obligation of faith in international
cornpacts.
compacts.~4
However, in spite of the negative results of the above survey
of Spinoza's influence,
infiuence, it is believed that the attention paid to
this aspect of his teaching
teaehing may not be altogether without advan-
tage for the student of the history and the theory of international
law. There are several reasons which seem to justify such a belief.
The beginning of the nineteenth century
eentury witnessed the eleva-
tion of the doctrine of Machiavelli, notably of his conception of
international relations, from the level of what had previously been
1 This is weIl illustrated by the
tbe fact that Frederick II, the
tbe autbor tbe weIl-known
author of the
snti-MachiaveI1ian treatise, while referring to Spinoza in the
8Ilti-MachiaveI1ian tbe preface of his
bis book, is
tbe opinion that the latter's negative influence extended to the
obviously of the tbe Held
field of
religion oniy: ".... Tbe Prince' of Machiavell "-thus
"-tbus begins thetbe Preface-" is withwitb
regard to morality, what Spinoza's work is with witb regard to religion." (EllJamen
(EaJamen du
no/es historiques et politiques (1741».
Prince Machiavel avec des notes
2 Rivier in Holtzendorff's Handbuch des Voelkerrechts (1885), I, p. 435, refers to
him casually in bis bibliographical article.
3. Menzel, Spinoza und das
8. dti8 Völkerrecht, in Zeitschrift für Völkerrecht, 11 (1908),
pp. 17-22. Professor Wolf, writing in Chronicon Spinozanum, Vol. 11 (1922) pp. 1I
pp.17-22. 11 and
12, goes the length of maintaining that Spinoza was .. a believer in the tbe essential unity
and solidarity of mankind," and that he be saw in reason "the surest means of inter-
national conciliation."
conciliatioD." ,• See below p. {>9.
 Spinoza and Law 305

SPINOZA AND INTERNATIONAL LAW 91

a by-word and a widely resented challenge to the moral sense of
man, to the dignity of an organic
organie part of a eomprehensive system
of politieal
political theory. The separation of morals from politiespolitics and the
identifieation of power with right-both eonstituted the main
feature of Spinoza's theory of the state-hegan
state-began to permeate Euro-
pean politieal thought. At the same time Spinoza's general philo-
sophy, hitherto the eentre
centre of barren controversies, became finally
reeognized
recognized as one of the foundations of philosophieal endeavour.
Is there any ground for holding that the simultaneousness of these
achievements was one not only of time, hut but also of intimate con-
eon-
nexion? Did the general aeceptance
aeeeptanee of his philosophy have the
effeet of facilitating-by making them appeal' appear fit to form part of
an imposing ethical and political system-the -adoption of inter-
national doctrines which
whieh would have otherwise been rejeeted
rejected with
scorn
seorn and abhorrence? It will be of interest to examine whethel' whether
and how far Spinoza's views on international relations became
part of those great systems of politieal
political theory which,
whieh, although
internationallawyers of the nineteenth century remained ignorant
of Spinoza hirns elf, influenced the suhsequent
subsequent devdopment of
internationallaw.
For the relation between political theoryand international
law is of a more pervading charaeter than is eommonly assumed.
It is the ultimate results of the theory of the state which are
resorted to by international lawyers as the foundation of their
systems. A politieal
political doctl'ine
doetrine hased
based on the omnipotence
omnipotenee and glori-
fication of the state as an end in itself will naturally result, and
has usually resulted, in the negation of the law of nations as a
body of rules both in its binding force and in its creation,
]~ules which, hoth ereation,
is independent of the will of the state. The present, still rudimen-
tary, stage of internationallaw is not in a small degree due to the
prevalence of this type of doctrine.
doetrine. And the time seems as yet far
off when the legal-and, of necessity, also the political
politieal and socio-
logieal-theOl'y
logieal-theory of the state will turn to international law as to
the neeessary
necessary starting-point of a truly seientific
scientific inquiry. Never-
theless, the philosophieal bases of internationallaw and its position
among cognate social and legal sciences eannot cannot be better illus-
trated than by disclosing the manner in which representative
systems of thought ended in the treatment of the problem of
relation of states to humanity, i. e. of their relations to one
another. Of them Spinoza's views are the more instructive as he
made it a point to apply here more geometrico the fundamental
principles of his ethical and political
politieal doetrine.
306 Spinoza and Law

92 YEAR BOOK OF INTERNATIONAL LAW

Finally, there is, with regard to Spinoza, a special reason
which adds interest to such an investigation. His negative atti-
tude in matters of internationallaw is to allaU appearance so pro-
nounced that the student acquainted with the little ways of his
method is inclined to suspect some hitch lurking in the back-
ground. Spinoza was a thinker who, it may seem, found delight
in not leading his reader straight to the point. He wrote the
Tractatus Theologico-Politicus with the avowed object of vindi-
cating the ideals of political freedom and religious toleration, hut
but
he did it with such an acumen that the chief task imposed subse-
quently upon his commentators was to prove that the treatise
was not a plea for despotism. 1 His political theory is to a large
extent based on the identification of power with right, and, con-
sequently, on conceding to the state a measure of authority over
the citizen which is co-extensive with its power-a very doubtful
establish the principles of freedom. It is only a subtle
way to estahlish subtIe
turn that saves the cause which he champions from heing being con-
demned out of his own mouth. The state's power, he says, and
accordingly its rights, are limited by the nature of its commands.
The state cannot, and therefore has not the right to, enact laws
the enforcement of which entirely escapes its contro!.
control. The suc-
cess of his thesis was thus made to hinge on a dialectical device
devlce
which, upon analysis, proves highly deficient in convincing power
and utterly meaningless as a rule of action. For an attempt on
the part of the governed to give, if need be, effect to this principle,
is, according to Spinoza, a revolutionary act of war and of return
to the state of nature-an act which he is all but eager to advise.
And yet he was content to let his main contention rest on a founda-
tion as frail as that. Is it probable that also with regard to what
he said on relations between states there should be only one step
between a mischievous idea and a constructive approach to a
solution of the problem? Spinoza never expressly made this final
step, hut
but it will be of more than passing interest to inquire how
far exactly he went in the right direction.

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

SPINOZA AND INTERNATIONAL LAW 93

absence of any obligation to observe treaties. The third is the
clear formulation of that set of ideas which is commonly given the
name of reason of state: the notion that the state in its dealings
with its neighbours is not bound by the canons of morality and
good faith observed either between the individuals who compose
it, or between itself as the Government and its own subjects.
The State 01of Nature. The necessity of preserving their exis-
tence
tenee and promoting their welfare forces men to abandon the
state of nature and to establish, through the social contract, the
reign of law in the form of a civil government. This, however,
does not abolish the state of nature altogether; it only shifts it to
a higher plane, so to speak. For as in the state of nature the
right of the individual is co-extensive with his power, so also is
that of the civil government thus established. In fact it could
not be otherwise considering that what really has taken place is
that from the numerous individual units of the state of nature one
huge unit of the state of nature has been created. "The right of
the supreme government is nothing else than the right of nature,
which is determined not by the power of each individual, but by
that of the multitude, guided, as it were, by one mind; that is
as each individual in the state of nature, so likewise the body and
mind of the commonwealth have just so much right as they have
power." 1 States are now typical specimens of units living in the
state of nature. Here, however, the analogy stops. There is ap-
parently no need for those aggregates of men to unite in order to
ward off dangers, to dispel fear and to co-operate for common
purposes. Spinoza feels here that he ought to explain why that
should be so, and he does it by pointing out that the state is able
to guard itself from oppression by its neighbours, which men in
the state of nature cannot do, weighed as they are daily by sleep,
suffering from disease and old age, and liable to other natural
troubles from which the state rests immune. 2 Having thus an-
swered the most embarrassing question, he is not slow to draw
the necessary conclusions. States being in the state of nature and
retaining a11
an rights of the state of nature, they are mutual enemies.
Hence the unlimited right of war and conquest, accompanied if
necessary by the total destruction of the settlements of the de-
feated adversary and by the transplantation of the inhabitants to
the territory of the victor. 3 "H," he says, " one state wishes to
bring war onanother state and resorts
res orts to extreme means to bring
it under its jurisdiction, it ean by right do so sinee
since it needs hut
but the
1 P. III, 2. 2 P. 111, 11. 3 P. VI, 35; IX,18.
308 Spinoza and Law

94 YEAR BOOK OF INTERNATIONAL LA \V 'V

bare will of the commonwealth for war to be waged." 1 This does
not necessarily mean that there obtains a permanent condition of
actual hostilities between nations. For they may conclude agree-
ments which for a time constitute the basis of their mutual rela-
tions. But, again, however numerous and enduring, such com-
pacts form in principle an exception to the natural state of enmity.
And, as we shall see presently, they are of a highly precarious
nature.
The Obligation 01 Treaties. The treaty, urges Spinoza, lasts so
long as the cause which produced it. When this inducement dis-
appears, there is aaperfeet
perfect right, vested in either contracting party
to disengage itself from the obligation. 2 For in the state of nature
it is clearly understood by both parties from the very beginning
that fear of a threatened injury or hope of gain are the bases, and
the sole bases, of contractual
contraetual relations. In addition-and here we
have what appears to be perhaps the first modern formulation of
the clausula rebus sie stantibus in international law-" no one
makes a contract for the future except on the hypothesis of cer-
tain preceding circumstances. But when these change, the reason
underlying the whole position also changes; accordingly
aecordingly every
contracting party retains the right to consult its own interests."
Curiously enough he found it advisable--quite
advisable-quite unnecessarily from
the point of view of the formal requirements of his method-to
prove the compatibility of this principle with ethical
ethieal and religious
considerations. In the Political Treatise he appeals to reason and
religion in support of the assertion that the obligation to keep
promises is not an absolute one. Thus, he says, faith need not be
kept with a thief who has entrusted stolen property to another
man's custody.3
custody. 3 In the Tractatus Theologico-Politicus
Theologico-Politieu8 he invoked
pietatem et religionem in aid of the same contention. It would be
nothing short of a crime if the ruler insisted on observing promises
injurious to his subjects; he must not break faith with those who
have entrusted their welfare to hirn. We are thus brought face to
face with the third canon of his international doctrine, namely,
with the principle known as
Reason 01 State. The state is not altogether without moral
obligations. If it has none towards its neighbours, it certainly has
distinct duties as regards the individuals who compose it, or rather
as regards itself in the capacity of the guardian of the interests of
those who have confided themselves to itscare. There is indeed a
law, which govems it to the exclusion of alla11 other considerations :
1 P. 111, 11. IB T.P. XVI; P. III, 14. 3 P. III, 17.
 Spinoza and Law 309

SPINOZA AND INTERNATIONAL LA LAWW 95

the
theprosperity o,"\'n government. I mperii salus summa lex.
prosperity of its own lea::.
A state--says Spinoza-which expects its neighbours to abide by
a treaty that has ceased
eeased to be he advantageous, expects
expeets it to do a
thing wh ich is not only foolish, but
whieh hut also dishonest because
beeause involv-
ing a breach of the original and implied eontract
eontraet made with its
own subjects.1 This is a typical exposition of " reason of state,"
a principle whieh,
which, while affirming obligations of faith and duty in
one sphere of action, deems
deerns it possible and neeessary to exclude
them
thern from the other.:!
other. 2
III
It is of importance
importanee to note at this stage that in the same way
as Spinoza's political theory is deeply rooted in that of Hobbes,
so also are his views on international relations. Hobbes's real
teaching on this subject is obscured by his occasional identifica-
ti on of the law of nations with the law of nature,
nature,3a a circumstance
eircumstance
which led some publicists to regard hirn him as aprecursor of Pufen-
Ptifen-
dorf in the naturalistic affirmation of the law of nations. As a
matter of fact, however, his law of nature as applied to states is
not a law at aH a11 in the sense of a legal or01' moral precept. It is a
right of nature, jus naturale, i. e. "the liberty each man hath to
use his own power, as he will himself,
hirnself, for the preservation of his
nature ... and of doing anything whichwhieh in his own judgement and
reason he shan
shall eoneeive
eonceive to be the aptest means thereto."
thereto.""4 The
true meaning of this right of nature as applied to states is fittingly
illustrated by what he understood to be the state of nature in
plaeed. It is astate of war. We remember the
whieh states are placed.
picturesque passage in the Leviathan in which he refers to the
eondition
condition of states whieh " beeause of their independence, are in
eontinual jealousies and in the state and posture of gladiators
having their weapons pointed and their eyes fixed on one another,
whieh is the posture of war." 5 The same trend of thought is
given eloquent expression in several passages of the De Cive.
" The state of independent governments with respect to one another is astate of
nature, that is of hostility. Nor, if they cease to fight, is it therefore to be called
pence, but a breathing time; in which each adversary, watching
peRce, watehing the motions and
eountenances of the other, judges his security, not from compacts, but from the
force and councils of his adversary." 6
1 IH, 14.
P. III,
~
2 On this aspect of Spinoza's teaching cf. lIeinecke, StaalsTäson (1924),
l-Ieinecke, Die Idee der Staatsräson
pp. 270-80. 3 Leviathan, XXX.
4~ lbid.,. XIY. This in contradistinction to what he calls the law of nature, le:IJ
Ibid.,. XIV. Zu
7futuralis, which is a binding precept of law and reason, but which he does not apply to
71atlmllis,
relations betwecn
between states. Letia!han. XIII (in fine).
5 Let,ia!han. eXIlI,
e XIII, 7;
7 ; see also X, 7.
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96 YEAR BOOK OF INTERNATIONAL LAW

Not from compacts,' for covenants of mutual faith made in the
,'Not
state of nature are-with one solitary and truly Hobbesian excep-
tion I-vain and invalid. There is no obligationoffaith
obligation of faith in relations
between nations. 2

On all these points Spinoza follows Hobbes very closely. The

differences between them are mainly formal. To Hobbes, who
was preoccupied, to the exclusion of all other considerations, with
proving a very difficult thesis, the question of relations between
states was one to be dealt with for the purpose of illustration and
ingenious argument. To Spinoza it was an independent part of
bis system, and he dealt with it more fuHy.
his fuIly. Secondly, Hobbes,
for a very good reason of his own, conceived of the state of nature
as of a truly horrible condition of incessant physical fear, if not
of actual war-an urgent inducement to form astate under quite
specific stipulations. Spinoza's conception of the state of nature
prevailing between individuals, although similar in kind, differed
from it in degree. The life of the individuals thus placed is indeed
an " almost brutish " one, but their wretchedness is not one of
wild terror, only, it seems, of impossibility of peaceful develop-
ment for higher human purposes. This conception of the state of
nature gave hirn thus the advantage of a less pessimistic and more
constructive approach to the problem. The gulf between the state
of nature as understood by hirn and an idea of a community of
nations under the reign of law Iaw was not so wide as to convert
the latter into a utopia unrelated to facts. However, before dis-
cussing the advance made by hirn on Hobbes, it is necessary to
inquire in what do the shortcomings of his own teaching consist.
IV
Throughout his treatment of the problem under discussion,
Spinoza is at pains to apply to relations of states the principles
which stood so weIl the test in the case
whieh ease of individuals. One gains
the impression that he is merely copying himself without taking
the trouble of altering words. What, for instance, he says on the
continued validity of treaties is notbing
nothing else than a well-nigh
literal repetition of the views previously expressed on the binding
force of contracts in the state of nature, including the hypothetical
contract establishing the civil government. 3S Examples of this
kind could be multiplied at will. However, he breaks off the
1 Prornises extorted by fear are, according to hirn, binding, for otherwise " prornises
which
whlch reduced menrnen to eivillife .•. rnight likewise be of none effeet " (De Cive, eh. II,
••. might
12,16).
12, 16).
Ibid., 11,
2 lbid., II, 11.
H. 3 Cf. P. 11, respeetive passage of T.P. XVI.
H, 12, and the respective
 Spinoza and Law 311

SPINOZA AND INTERNATIONAL LAW

LAW 97
chain of analogy at the most vital point. In dealing with the
individual man he was not content to limit himself to his concep-
tion of natural right as identical with potentia. There is another
law, the law of reason, the rational principle of human welfare,
which is altogether different from and frequently opposed to the
right of nature. The latter, he says, prohibits nothing except
what no one desires or no one can obtain, but it does not prohibit
strife and hatred. But reason, human reason, whose supreme
command is peace and by which nature as a whole is not bound-
man is only " one atom" in the eternal order of creation-abhors
them. 1 And yet it is this law of reason which is the dynamic and
truly creative element in Spinoza's political theory. Man must
be compelled to live according to dictates of reason if he does not
do so by his free will. 2 The principle of reason is the guiding
motive of the two treaties. It is throughout a command of the
conscious human willled by a conception of definite ends, and on
its account Spinoza is not content to accept the state as it is, but
searches after the good state. The man is free who lives, not
according to the right of nature, but according to reason. And it
is liberty achieved through obedience to reason which is the ulti-
mate object of the state. 3 However, all this is thrown to the
winds when he comes to deal with relations between states. The
law of reason retires to the background; the jm jus naturae asserts
itself unfettered and undisturbed. Few statements are, in this
connexion, more open to question that that which explains the
unsatisfactory results of his international doctrine by the circum-
stance that he applied here the. same principle as he did in his
political theory. 4 The very opposite is the case. A fatalistic deter-
minism took here the place of his reliance upon the power of
reason. Why should not the same motive which prompts men to
live under the reign of law apply to whole nat,ions?
natjons? Are not the
perils which beset them equally great? The function of the law,
says Spinoza, is to protect the individual before his lower self.
Are states less in need of such protection? Are collective passions
less strong or less dangerous? And is not, with collective units,
the teaching of experience less productive of results? There is no
attempt on Spinoza's part to deal with these matters in a manner
worthy of the magnitude of the problem. The only approach to
an explanation is contained in the paragraph, already mentioned,
of the Political Treatise with which he opens his discussion of
1 P. 11, 8; T.P. XVI. I P. XI, 8. a P. 11, 11.
, Vaughan, Sludies History 0/
Studie8 in the Hi8tory 01 Political Philosophy (1925), Vol. I, p. 82.
312 Spinoza and Law

98 YEAR BOOK OF INTERNATIONAL LAW

international relations. The state is self-sufficient; it can defend
itself from oppression whereas the individual labouring under
physical disabilities and infirmities cannot. This reasoning is, of
naive. The possible range of physical inequality-
course, grossly naIve.
and that is what mainly matters in the state of nature-is incom-
parably greater between states than between individuals where
intellectual superiority may counterbalance physical prowess. In
the mere state of nature, no amount of foresight, good govern-
ment, or sacrifice can save a small state from the clutches of a
powerful neighbour should it wish to annihilate it. The induee- induce-
ment to leave the state of lawlessness is here, in the long run, not
smaller than in the ease
case of individuals.
No doubt, explanations might be forthcoming as to why
Spinoza stopped short of what seems
seerns to be the natural eonsumma-
consurnrna-
c;>f his argument. The foremost of them
tion of thern would be the fact
that the political condition of Europe in the seventeenth century
was not such as to bring horne to him hirn the feasibility of a juridical
organization of states, and that the signs of an order emerging
with the Westphalian Treaty from frorn the state of general disorder
were still of a rudimentary
rudirnentary and problematic
problernatic nature. The fate of
his own country at the time when he wrote the Political Treatise
rernoteness of the civitas
exarnple of the remoteness
was to hirn a telling examp]e
maxima. It is also possible that with hirn, as with Hobbes, the pie-
ture of nations living in an anarchical state of nature was resorted
ernphasizing the absolute character
to for the purpose both of emphasizing
of state sovereignty-international
sovereignty-internationallaw law has frequently been used
as a scapegoat in this manner-and of providing an illustra-
tion of the consequences involved in the dissolution of the bond
of the civil state. But these explanations eannotcannot do away with
the fact that the master's hand lost its cunning when he set
himself to deal with relations between states.1 The breadth of
vision of the pantheistic thinker who embraced the universe nar-
rowed here down to the frontiers of a single state, and the principle
of expediency which animates his political theory was jettisoned.
The fault lay not in this principle, but in Spinoza's failure to
extend it beyond the state. And it would be equally off the mark
to maintain that his avowed business was to take things as they
are and not as they ought to be. His avowed business was to draw
conclusions from things as they are, and this he did to an excellent
1 Suarez, De Legibus ac Deo LegislawTe,
Legislatore, wrote in 1612 on the
tbe necessary interdepen-
tbe consequent restriction of national sovereignty in a manner
dence of states and on the
that would do honour to a most advanced modem believer in the tbe League of Nations.
 Spinoza and Law 313

SPINOZA AND INTERNATIONAL LAW 99

purpose in his political theory. He failed to do it in the field of
international relations, and thus gave to a necessarily transient
state of imperfeetion
imperfection the character of finality.
Neither is it possible to regard his refusal to acknowledge the
binding force of treaties as something
sornething other than a consistent
application of the view that there is no law above or between
states. It is difficult to follow those jurists and political writers
deern it necessary to emphasize their admiration for the great
who deem
thinker by defending as inherently accurate
aeeurate this aspeet
aspect of his
doctrine. 1 They point out that neither law nor equity rnake make it
an unbreakable rule that promises should be kept at all eosts. costs.
certainly true, but it is irrelevant so far as Spinoza's eon-
This is eertainly con-
ception of the clausula rebus sie stantibus is coneerned.
eeption concerned. For what
he taught was that no compacts
compaets need be kept unless they con-
tinue to be advantageous. This is a proposition very different
from the view that it is not always right or fair or perrnissible
permissible to
contract. It is the very essenee
exact the fulfilment of a eontraet. essence of the
law of eontraet
contract that it eompels
cornpels a party to fulfil the obligation also
after it has eeased
ceased to be interested in the maintenance
rnaintenance of the
vinculum juris. To maintain,
rnaintain, as does Spinoza, that the contract
is valid so long as the will, prompted
prornpted by the hope of gain, lasts, is
to proclaim that the eontract aU. It is a hope-
contract is not binding at all.
less task to defend such a proposition as a rule of law or equity.
Its author himself
hirnself did not view it as such; it was to hirn one of
the incidents of the law of nature, i. e. of the absence of law
between nations. In fact, in so far as the application of the elau-
sula is dependent upon the discretionary will of one of the parties,
its essence is illegality, and such elements of right and justice as it
may otherwise eontain ineffective. It has never
contain are necessarily ineHective.
been recognized as a rule of positive internationallaw, although
it may
rnay become so when resorted to by an authoritative judicial
tribunal applying generally recognized principles of law and intent
upon giving eHect
effect either to the will of the parties or to higher
considerations of common international good. But this Spinoza
did not think.
V
However disappointing may be the sudden turn which diverted
a promising trend of Spinoza's argument to a passive recognition of
astate of anarchy between nations, there are several elements in bis his
teachingwhichlessen considerably the criticismdirected against it.
1 Sir Fn..-derick Chronicon Spinozanum, Vol. I (1921), p. 408; Vaughan,
Fn.-derick Pollock in Chrooicon
op.
qp. cit.,
cU., pp. 88, 84.
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100 YEAR BOOK OF INTERNATIONAL LAW

In the first instance, the fact-already referred to-should be
noted that he travelled almost the whole distance on the road
which he finally abandoned fascinated by the assumed self-suffi-
ciency and majesty of the state. It is impossible to read and to
understand the crucial paragraphs of the third chapter of the
Political Treatise without being struck by the almost pathetic
vacillation between the purely Hobbesian conception of inter-
national relations and the idea of a comprehensive federation of
states as the most efficacious means of securing peace. This in
fact is a significant advance made in the Political Treatise, written
at the eIose
elose of his days, upon the Tractatus Theologico-Politicus.
We see here repeated attempts on his part to avail himself
hirnself of the
same fmitful
fruitful line of thought which was of decisive merit in his
plea for the establishment of civil society. The natural right of
man, he says, so long as its realization rests upon the individual
in the natural state of isolation, is of a mere conceptual character.
It consists magis opinione quam re. Only through combination of
powers, otherwise rendered nugatory by fear, can the natural
right be realized. 1 "If two come together and unite their strength,
they have jointly more power, and consequently more right, over
nature than both of them separately, and the more there are that
have so joined in an alliance, the more right they all collectively
possess." 2 He applies exactly the same principle to states : " We
cannot at aU doubt that if two states are willing to offer each
other mutual help, both together are more powerful, and therefore
have more right than either alone." 3 Fear being the great de-
stroyer of might and right, "the more commonwealths there are
which have contracted a joint treaty of peace, the less each of
them is an object of fear to the remainder.'" We feel that he has
traversed the whole road, and that what was left was to draw the
conclusion which he had just drawn in the analogous case of indi-
coneIusion
viduals. Instead, doubts of an altogether different order rise to
obscure the argument and to shift the issue. Such an alliance, he
says, makes the state less sui juris because more dependent on
others for the preservation of its rights; it diminishes its faculty
to go to war; it binds it to observe the conditions of peace and
to submit itself to the joint will of the confederates. Unfortunately
he leaves us quite in the dark as to his final opinion on the sub-
ject. Are these restrictions
restrietions of national sovereignty foUowing upon
comprehensive treaties of alliance such as to render their coneIu-·
conclu-·
sion dangerous or undesirable? Or are these drawbacks merged
1 P.II, 18. I P.II, 18. 3 P. 111, 12. , P. 111,
III, 16.
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SPINOZA AND INTERNATIONAL LAW 101

in the higher advantage accruing from such additional security ?
He is non-committal and refrains from stating that this depen-
dence is only provisional and, according to his own argument, the
fundamental condition of the realization of a right more valuable.
And it seems that he is unwilling to say it, considering that the
insistence on the precarious nature of treaties of alliance thus
concluded dominates the whole argument. But it is apparent at
the same time that he is wrestling to find a new approach to the
problem.
These considerations suggest also that it would be amistake
to identify his general attitude with one of glorification of war.
The necessity of peace is the starting-point and the regulative
politieal system pro foro interno; to it he is occa-
principle of his political oeea-
sionally prepared to sacrifice
sacrifiee the ultimate aim of the civil society,
namely, the liberty of the subject. It would be strange if the
internal peace thus secured
seeured were to be frustrated by continuous
war coming from outside. In fact, Spinoza is constantly in search
of safeguards against the dangers of war. A democratic
demoeratic form of
government is one remedy; 1 the abolition ofpaidof paid armies another. 2
And we find in the Political Treatise a detailed plan designed to
enhance
enhanee the chances
chane es of peace
peaec in an aristocratically governed com-
munity. He proposes that the senators be awarded a hundredth
or a fiftieth part of the total value of the imports and exports as
an inducement to preserve peace and not to protract war. For
the foreign trade during war being reduced
redueed to a minimum, the
senators will naturally fee!
feel inclined to diminish the evils of war.
The possible objection
objeetion that such a tax would constitute
eonstitute too great
a burdenupon the citizen, Spinoza meets with the argument that
" peace cannot be bought at too great a price." 3
This pronounced affirmation of the necessity of peace seems
also to suggest that, however strongly worded his bis conception of
the clausula may have been in theory, his view on the relations
between states was not one of govemments
governments breaking their en-
gagements at the slightest provocation. For if, by hypothesis,
the state of war is the only alternative to a condition regulated by
treaty, it is not to be supposed that indiscriminate violation of
treaties was regarded by hirn as a normal course of action. In
addition, the passages in the two treatises,
treatises. in wHich
wllich he sets forth
his views on the question of the binding force of treaties convey
the impression that the treaties to which he refers are political
1 P. VI, 10,
10,81;
81 ; VII, 12, 17,22,28.
2 ToP. XVIII; P. VII, 5.
T.P. 3 P. VIII, 31. See also P. VII, 7.
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102 YEAR BOOK OF INTERNATIONAL LAW

conventions in the strict meaning of the word, namely, treaties
of peace and alliance. There is as a matter of strict law no reason
for making distinctions between this type of convention and others.
Nevertheless their position has ever since been regarded as a
peculiar one, and many writers who put the rule pacta sunt ser- seT-
vanda in the foreground of internationallaw think it necessary to
make an exeeption
exception in point of allianees.
alliances.1 Thus, if it is allianees
alliances
which he had in mind, then, except for the poignancy of the
statement, there is not much to choose between him hirn and no less
a person than Grotius. 2 Moreover, quite apart from treaties of
international law himself gave to the elau-
alliance, the father of internationallaw clau-
sula a blessing more hesitating in form than in substance. (It is
of interest to note here the similarity of instanees
instances quoted in this
connexion by Grotius and Spinoza. Both refer to deposits which
need not in certain circumstanees
circumstances be returned. 3 This similarity
may be aceidental,
accidental, but if it is not, it throws some light on the
controverted question of Spinoza's acquaintance with the writings
of Grotius. ')
4)

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

SPINOZA AND INTERNATIONAL LAW 103

em bodied in the social contract. Like Spinoza he points out that
embodied
a limitation of this kind is implied in every promise of aid and
assistance, and that an ally who puts his faith in a treaty which
is not equally advantageous to the other contracting party is a
hirnself for his improvidence. 1 The trend
fool and has to blame himself
of reasoning and the very terms employed in this connexion by
Pufendorf and Spinoza are so similar that the latter's direct influ-
ence does not appear to be a matter of pure conjecture. 22
It is probable that the general influence exercised in this re-
spect by Spinoza was that of having imparted to some of the
doctrines of Machiavelli the authority and detachment of an im-
posing philosophical system. The development of certain political
doctrines in Germany in the first half of the nineteenth century
provides a good example of this process. The student of the his-
tory of reason of state and of its bearing on the science of inter-
national law will notice, not without interest, that men like
Herder, Fichte, and Hegel were admirers both of Spinoza and
Machiavelli. This may be a coincidence, but it is highly probable
that it is not. They all saw in the Italian writer, not the great
challenger of morality in the domain of man's collective action,
hut the patriot offering to a prince of divided Italy wise counsels
but
how to save the fatherland. In contemporaneous Germany they
saw a sad analogy to the state of Italy in Machiavelli's time, and
longed for men and principles ableahle to promote their country's
1 cit., L. VIII, c. vi, § 14; c. ix, § 5.
Op. eit.,
2 Spinoza' s parallelline of reasoning envisaging a compre-
Tbat,. on the other hand, Spinozs's
hensive confederation of states might not have passed altogether unnoticed, is rendered
probable by the study of those writings of Kant and Rousseau in which they deal with
intemationallaw and the problem of etemal peace. Kant does not refer here direct1y directly
to Spinoza. Yet it is sufficient to compare the relevant chapter in the Metaphysical
Principles 0/ the Science in Law (1797, para. 54)-it is entitIedentitled .. Tbe Elements of
"Tbe 01
International Law"-in order to note how both deal in the same manner with the
same questions. Kant, like Spinoza, emphasizes that states are by nature in a non- Don-
juridical condition; that this condition is aastate
juridicaI state of war in which the right of the
stronger prevails; that an alliance is an adequate means for mutual protection, and
that the federation thus created is revocable on any occasion. There is ia one fundJ1-
funda-
mental difference
difierence between them, inasmuch as Kant Rant took tbe
the step which Spinoza shrank
from taking. Tbis natural position of 01 potential war, says Kant, is wrong
wrang in itself in the
highest degree, and states are mutually under the tbe obligation to pass out of it. It will
also be observed that Kant too attaches considerable importance to the abolition of
standing armies aodand to republican form of govemment as guarantees of peace.
lasting Peace through the Federation 0/ Europe (1756), and his plan of
Rousseau, A laBting 01
a confederation are obviously based on the proposals of Abbe AbM de Saint-Pierre, but those
passages of the essay (see p. 47 of Vaughan's translation of which be
1915) in whicb
0(1915) he speaks of
tbe
the natural state of war between nations, of treaties constituting only a provisionaI
provisional
truce and changing witb with the change of circumstances, again bring to mind the corre-
sponding passages of tbe Treatise.
the Political TTeatise.
318 Spinoza and Law

104 YEAR BOOK OF INTERNATIONAL LAW

liberation from the yoke of the oppressor and from internal dis-
sension. However, an abnormal political situation would have
been hardly sufficient to secure
seeure general acceptance for doctrines
which even Frederick 11 II deemed it necessary to refute page by
page and sentence by sentence. It was necessary to show that
the Machiavellian teaching was not a bWldle of cynical statements
and ingenious devices concocted in order to ensure success in
doubtful enterprises, but one of the consequences of an organie
theory of state. The prob ability that it was Spinoza's teaching
that did much to lift the odium resting on Machiavelli cannot be
lightly dismissed.
Of aU
a11 these writers-perhaps of all political and philosophieal
philosophical
writers-Hegel's influence on the theory of internationallaw is by
far the profoWldest and themost
the most clearly demonstrable. Bodin's
theory of sovereignty had left unimpaired the state's subjeetion
subjection
to the higher rule of the law of nature and nations. Hobbes's
teaching on international relations remained on the whole without
influenee,
influence, and so far as it was noticed
notieed it was effectively dealt with
in the numerous "refutations of Mr. Hobbes." 1 But Hegel's
theory of sovereignty and of the supremacy of state has become
for many publieists
publicists the starting-point for their exposition of
international law. It is therefore not without signifieanee
significance that
Hegel was within the circle
circIe of men to whom Spinoza was all but
unknown. That he was conversant with Spinoza's writings is
~onfirmed both by his enthusiastic acknowledgement
amply (!onfirmed aeknowledgement of
Spinoza's plaee
place in philosophy, and by his easual
casual disparagement
of his doetrine.
doctrine. The differenees
differences between the politieal
political systems of
Spinoza and Hegel are no doubt profound, but they are not pro-
ductive of any such praetical
duetive practical eonsequenees
consequences as is the idea whieh
which is
common to both, namely, the identification of right and power as
the basis of the state. 2 Hegel's saying, "the
" the real is the rational,
and the rational the real," is only another formulation of Spinoza's
coneeption of the jus naturale. In no part of Hegel's writings is
conception
this affinity of views more striking than where he deals with rela-
tions between states. Consider, for instance, the weU-known
we11-known pas-
sage in his Philosophy 0/01 Right which bears the title " International
11 Cf. here especially Cwnberland's A Treatise
TTeatise on the
Ihe Law 01
0/ Nature (167~); Max-
well'a translation appeared in 1727, where in para. 54 and 55 of Chapter V, after an
well's
exhaustive analysis, the international doctrines of Hobbes are described as aa conducive
to "the
.. the greatest inconvenience of mankind," as contrary to experience and altogether
monstrous.
I Cf. here Heller, Hegel und der nationale Machtstaatsgedanke
Machtataatagedanke in Deutschland (1921),
pp. 54-67.
 Spinoza and Law 319

SPINOZA AND INTERNATIONAL LAW 105

Law." Freed of their cumbersome language, they read like a
paraphrased version of the corresponding passages of the Tracta-
tus Politicus. We find here the same conception of states as being
lip-service has
in the state of nature; the same statement-after Hp-service
duly been paid to the proposition that the rule pacta sunt servanda
internationallaw-that,
is the basis of international law-that, states not acknowledging
a superior power over them, the obligation to observe treaties is
a purely formal one, adapting itself to the changed circumstances
and resulting, if need be, in the total voidance of the treaty ; 1 and,
finally, the opinion that, in default of an agreement of the par-
ticular wills of the interested states, a dispute between them can
be settled by war only. 2
Hegel was following in this respect the lead given by Fichte,
the man who first attempted the task of incorporating the idea of
Machtstaat in the working moral order of the universe, and who in
his essay entitled "Machiavelli
H Machiavelli as a Writer" has done much to

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

106 YEAR BOOK OF INTERNATIONAL LAW

a large extent the international law of the nineteenth and twen-
tieth centuries. Spinoza's indirect part in this development does
not, in the light of the preceding observations, appear to be alto-
gether negligible. This is weIl illustrated by the manner in which
Bernard Bosanquet, one of the leading exponents of English
idealistic philosophy,who in his Philosophical Theory 01
of the State 1
voiced with almost
alm ost convincing eloquence the Hegelian principle
of the absence of law between states, reminded his readers that
this Machiavellian principle has in its support the great authority
of Spinoza.
VII
It is not necessary to summarize here in the usual manner the
conclusions reached in the preceding sections
seetions of this article. Only
one fact should, it is believed, be speciaHy
speciaUy referred to; a fact
which explains why Spinoza, of aHaU men, 2 should have lent himself
to preaching the doctrine of lawlessness in the relations of states.
The inclinations of his personaliife;
personallife; the importance he attached
to the necessity of securing
seeuring peace as the primary task of govern-
ments; the spirit of formal unity which pervades his work-all
these factors pointed to a different solution. The explanation, as
we have seen, is that he failed to apply to international relations
the principles of the method of which he and Hobbes were the
precursors, if not the founders, and which under the influence of
men like Bentham on the one hand, and of the historical school
on the other, gained in the nineteenth century general recognition.
It is the method of dealing with human relationships on a rational
basis and by means of inductive inquiry. This does not mean
that the science of man thus conceived abdicates the function of
consciously promoting social ends, or that man is to it no more
than a lifeless object of nature. It means only that it is content
to be judged by the standards of scientific method; that it is
intolerant of contradictions within the systematic exposition of
the subject;
suhject; that it avoids unnecessary fictions and personifica-
tions. From a variety of reasons this manner of treatment has so
far been only imperfectly applied to that aspect of sociallife which
is embraced by relations of independent states. The theory of
(1920)J Preface, p. xiv. Similar is
1 8rd ed. (1920). ia the attitude of Duff, Spinoza's Political
and Ethical
Etkical Philosophy (1908),
(1903), pp. 457-61.
2 Hallam, lntroduction
IntToduction to the Literatt/re 01 EUTope,
LiteratttTe 0/ Europe, fifth ed. (1885), vol. IV, eh. iv,
§ 76, who expresses indignant disapproval of doctrine, refers to
oi Spinoza's international doetrine,
him as a virtuous and benevolent man, snd comments on the slight connexion between
theoretical principles snd personal conduct.
 Spinoza and Law 321

SPINOZA AND INTERNATIONAL LA LAW W 107

internationallaw still operates with the conception of a plurality
wh ich every one is the highest; with the idea of rights
of states of whieh
not grounded in an objectively binding rule of law; with the doc-
trine of duties addressed, not to human beings, but to impersonal,
although personified, states;
states j with the assumption that states are
self-sufficient. It is now generally admitted that these and similar
notions are unable to bear the test of a eritical
critical examination from
the point of view of either juridical logic, or economic facts or
cultural needs. And yet they are firmly embedded in the theory
of international law, and influenee
influence constantly the actions of
governments. It is therefore not merely of historieal
historical interest to in-
vestigate how far this state of affairs is a heritage from writers
like Hobbes and Spinoza, who, while laying the foundations for
the seientific
scientific study of human soeiety,
society, refrained from applying it
to international relations. In the present article an attempt has
been made to show how this elimination of the induetive
inductive method
and of the principle of expediency worked in Spinoza's mind, and
how it was unsuccessfully opposed by a more constructive line of
thought.
 [17]
SPINOZA AND THE IDEA OF REASON OF STA TEl
G. A. van der Wal

In a political respect the fact that characterizes the transition from

the Middle Ages to modern time, is the emergence of the sovereign sta-
te.
te. With that event the political reality undergoes a radical change.
The distinguishing mark of the political order is no longer the idea of
the Respublica Christiana, to the mediaeval mind the central category
in the political field, - not only in politics, for that matter, for as the
term Respublica Christiana already indicates its refers to the communi-
ty of all Christians. In that way the connecting factor is the unity of
faith, i.e. society is understood as a religious and political community
at once. Whereas the religious and spiritual component is embodied in
the church, the political and secular component is in the empire, for-
ming together a single two-sided unity.
After the change of scene which, indeed, took place in the different
parts of the continent far from synchronically
synchronicaHy and also at a very un-
even pace, the unity of political organization no longer is the empire,
but the modern state, tied up to a specific territory and a specific po-
pulation (nation) and characterized by whatwh at is called the internal and
external sovereignty, respectively, that is, the supremacy over all other
authorities within that territory and population and the independence
in depen den ce
0/ outside authorities (BuH 1977, p. 8). So henceforth the political sce-
01
ne in Europe - and from there this form of political order was to
spread over the world graduaHy - consists of a plurality of indepen-
dent, more or less closed political communities.
This course of events is reflected in the political theory of post-me-
diaeval time: it turns around the new phenomenon of the state. For
that reason the basic category of political thought is no longer the con-
ce pt of the Respublica Christiana, or of its coroHary
cept corollary of just lordship,
but the notion of the state, - already the introduction of the new term
gaining currency in the 15th century and coming to stay rapidly, is sig-
nificant. Modern political thinking, in that way, is the doctrine of
324 Spinoza and Law

276 Studia Spinozana 1 (1985)

the state, of which it offers the theoretical account, i.e.the

Le.the articulation
and explanation, and in the normative respect the justification.So both
the political reality in the turn from the Middle Ages to modern time
has undergone a fundamental alteration and, hand in hand with that
event, a new framework of thinking (a new paradigm) has evolved to
give a theoretical interpretation and account of that new reality. This
does not mean to say, however, that between the old and the new si-
tuation no continuity exists and that themes out of the earlier theory do
not occur in any form in the new theoretical setting. But where this
happens, - we will reeur
recur to it, for instance, in conneetion
connection to the pheno-
menon of war - , there things enter into a new context and for that
reason change their appearance.
An essential feature of the situation of the modern state, to which
we already alluded, is that it exists next to equals. Although these sta-
tes are relatively closed entities and the national life in a large measure
takes pI ace within the enclosure of its national boundaries, yet they do
place
not exist without any form of interaetion.
interaction. So in time of peace they de-
velop trade relations, but particularly they meet as adversaries in the
many wars they eonduct
conduct against eaeh
each other. Therefore, the emergence
of the modern state at the same time means the emergence of the phe-
nomenon of interstate relations.
The doctrine
doetrine of the state, then, which,
whieh, as we have seen, is a perma-
nent part of modern political theory, is for that reason both a theory
of international relations, + nd a theory of the internal eonstitution
constitution of
the state. Thus for instance + ant, in the annex to his booklet
Perpetual Peace, refers to both aspects of the theory of the state res-
pectively
peetively as the StaatsverJassung (internal + spect:
speet: the constitution of
the state) and the Staaten verhältnis (external
(extern al + spect: the relation be-
tween states) (Kant 1912, p. 372). It may be noted that +n politieal political
thinking, of the early modern era at least, a strong emphasis is laid on
the first aspect. By far most of the time writers dweIl on the subjeet
subject of
the state as aseparate, selfcontained + ntity, discussing
diseussing its most desira-
ble form and organization, its basis and so on. Nevertheless, the exter-
nal aspeet
aspect essentially belongs to the state according to the modern con-eon-
ception and so, notwithstanding its secondary and often even marginal
character, it receives a treatment of its own in political theory. And
reaIly, these relatively rare observations contribute
really, eontribute in an essential man-
 Spinoza and Law 325

Wal, Reason of State 277

ner to the comprehension of modern political reality.

Now, in the theory of international relations as it develops in mo-
dern time one can, grosso modo, distinguish two traditions. Both are
represented already at an early moment and they have continued to
dispute the field up till the present day. One position is connected with
the name of Machiavelli who was the first to expose it with great con-
sequence. The central notion in this view of the state in general, espe-
cially where interstate relations are at stake, is the idea of reason oi
State. The only factor regulating state behaviour is thought to be the
national interest. In this perspective the predominant feature of the sta-
te is power and relations between states, therefore, are determined by
the balance of power and nothing else. Politics, for that matter, is
identical with power-politics (Realpolitik). And so far as right is con-
cerned, at the international level the law of the jungle rules without re-
serve or, to put it otherwise, here right is identical with might.
The opposite position, for which the name of Grotius, the iather oi
international law is representative, holds that power and national self-
interest are not the only determining factors in the intercourse of sta-
tes, but that the state from its very essence is marked by right. That
is: the idea of the state implies the idea of the rule of law, not only in
its internal, but also in its outward affairs. International relations, in
other words, are under the primacy of right and not of politics, if this
last concept is understood in its modern, Weberian sense of denoting
all kinds of power-governed action.

Now, the question

quest ion we want to raise against this background is what
is Spinoza's
Spinoza 's stand in this ongoing debate. Or formulated otherwise,
wh at is his position in connection to the idea of reason oi State? For
what
in that form the question can be considered to be the litmus-test of
modern political philosophy in order to decide what at the most funda-
mental level is someone's
someone 's position in political affairs, whatever the
more concrete elaboration may be.
Now Spinoza, as may be known, has been considered to take sides in
one direction as wen
weIl as in the other: alternately he has been interpre-
ted as defending a realist, Machiavellian stand, basing, in other
words, his political thinking on the central notion of reason oi State,
or on the contrary as representing an idealist position, being, that is,
the advocate of an international legal system, at least in intention.
326 a ndLaw
Spinoza and Law

278 Studia Spinozana 1 (1985)

Thus, to mention only a few instances, chosen more or less at random,

Sir Hersch Lauterpacht, a renowned scolar in the field of international
law, writes: Three main features may be distinguished in Spinoza's
doctrine of international relations ....
... . The third is the clear formulation
of the set of ideas which is commonly given the name of reason 0/ of
State: the notion that the State in its dealings with its neighbours is not
bound by the canons of morafity
morality and good faith observed either by the
individuals who compose it, or between itself itselj as the Government and
its subjects (Lauterpacht 1975, pp. 369 ss.). In the same vein Lucien
Mugnier-Pollet says: The theses put forward (seil. by Spinoza in con-
nection with the problem of international relations) can be situated ra-
ther easily in the tradition of thinking in terms of reason 0/ of
State... (Mugnier-Pollet 1977, p. 489) And also Friedrich Meinecke
accords a place to Spinoza in his brilliant study of the evolution of the
idea of reason of State (Meinecke 19633 , pp. 255-263).
conc1usion, however, is arrived at by Alfred Verdross,
The opposite conclusion,
the well-known Austrian expert in international law in an essay under
the title Das Völkerrecht im Systeme von Spinoza (The Law of Nations
in the system of Spinoza) (Verdross 1928).8 In his opinion Spinoza (and
Heget) is reckoned wrongly among those writers who deny the existence
Hegel)
of a transnational Law of Nations. The passages, in particular in chap-
ter 3 of the Tractatus Politicus, in wh ich every state is accorded an
which
unrestricted right to war and breach of treaty, only bear on the state of
nature which, however, the states have left for the same reasons as the
individuals did. Just as the individuals live under a common will in the
state, so Spinoza can be interpreted as defending a collective will of the
states as the foundation of the Law of Nations. It is to misconstrue
Spinoza's views, in other words, to read hirn as a representative of
reason of State thinking. 9
Also Lauterpacht admits that there is in Spinoza a second fine of
reasoning envisaging a comprehensive confederation of States (Lauter-
pacht 1975), without being able, however, to interpret hirn consistently
from that angle. In Lauterpacht 's opinion one has to notice a sudden
turn which diverted a promising trend of Spinoza 's argument to a pas-
sive recognition of astate of anarchy between nations(376 ss.). In Spi-
noza, that is to say, Grotian and Machiavellian motives exist side by si-
deo
 Spinoza and Law 327

Wal, Reason of State 279

To answer the question we have put ourselves, viz. VIZ. what

wh at is
Spinoza's standpoint in relation to the idea of reason 0/ oj State, one
possibility would be directly to consult the philosopher hirnself. This
approach would have the advantage of letting hirn speak hirnself and
interpreting his work in its own terms. We prefer to go the other way
round of reading his work against the background of an evolution of
ideas reaching beyond hirn. Spinoza's political philosophy, or themes
of it, are seen then as a moment in an overarching process of christali-
zation of ideas that, as it were, takes place through his philosophy.
From the acquaintance with the genesis of ideas more in general one
can look back at Spinoza's thinking, in order to analyse his treatment
of the matter with a sharpened eye. Only in this way does one become
attentive to details one might possibly note as obiter dicta merely or
perhaps even ignore altogether, but which
wh ich from the greater height of a
historical approach can be better recognized in their proper meaning
and place in a larger context.
In this way a philosopher is asked questions, it is true, from a per-
spective transcending his own, being the perspective of a long term
evolution of ideas. In that sense he is presented with problems he
would not have raised hirnself, at any rate not in that particular form,
and is understood belter
better than he understood himse/f.
himselj. Nevertheless, this
procedure is legitimate, because a philosopher's
philosopher 's thinking is a contribu-
tion intended to be of an objective kind to a certain problematic, -
contrary to the way a lyric builds a universe of perception and feeling
of its own that is completely sui generis and requires to be explained in
its own terms only. Although a philosophical oeuvre also in a certain
sense has this characteristic of a personal perception of reality, in its
quality as a philosophical oeuvre it is oriented towards truth and inter-
subjective validity. To that extent also it is defensible, and instructive,
to read a philosophy against the background of the successive evolution
of a problematic in the ongoing dialogue of philosophers of which it
can be considered to be a moment.

In the following we first give an exposition of the idea of reason 0/

oj
State decomposed in its main moments. After that we return to the po-
litical work of Spinoza in order to inquire whether, and in case of an
affirmative answer , in what form the various motives can be found in
his thinking and how this is to be interpreted.
328 Spinoza and Law

280 Studia Spinozana 1 (1985)

11
II

1. The idea, or perhaps better, the principle of reason 0/ State

means that political action is determined exclusively, or at any rate in
the last resort, by considerations of national interest. The only thing
that counts and settles the matter for a politician (the rufer,ruler, prince,
sovereign etc.) is and should be the flourishing of the state. For some
writers this is so strong that it even forms a defining feature of politics
and political action (v.s. note 7). Acting contrary to this principle, that
is, admitting other view-points besides the national interest or even let-
ting them prevail, not only constitutes bad politics, but even can no
longer lay claim at all to the qualification political action.
Whoever holds a view like this considers states as entities in their
own right, subjected only to the laws of their own growth and prospe-
rity. States in this outlook are ends in themselves that, inwardly (with
respect to their citizens) as weIl
weH as outwardly (vis-a-vis other states),
make the aims of others subordinate to their own. So wherever neces-
sary, everything may be sacrificed in the interest of the state. Particu-
larly this position does not recognize higher laws of a religious, legal or
moral kind. Quite to the contrary, if expedient, religion, law and mo-
rals are put in the service of the national interest, that is, they are esti-
mated from a political point of view. 1O
Not in the last instance does this mean that people are seen as instru-
ments or material to the goals of the state. This position does not re-
cognize an extra - er or even a supra-politicalIl11 dimension of human life
the state should have to respect and remain outside of, unless for pru-
dential, that is, self-referential considerations. Thinking in terms of
reason 0/ State is thinking from the viewpoint of the ruler, from
above, so to say, not from below,
below , from the standpoint
stand point of the citizen.
Generally , the basic idea is that, in comparison with the private mo-
de of life, the state possesses a higher kind of being. Only in the servi-
ce of this nobler cause of the country (patria, la patrie, das Vaterland
or however it may be calledI2 ), so it is thought, does human life get
substance and splendour. It is the modern version of the ancient con-
viction that human existence finds its destination and completion in so-
ciety. Thus in Machiavelli, for instance, we meet the idea that only the
state makes people good, that it gives meaning and colour to what
 Spinoza and Law 329

Wal, Reason of State 281

otherwise would be a poor and miserable kind of life. Most emphati-

cally this thought has been expressed by Hegel: All worth man has, all
spiritual reality he solely has through the state. (Hegel 19614 , p. 71; cf.
pp. 105ss.) But it can be found in many authors representing a variety
of reason 0/ State thinking, in Frederick the Great of Prussia, for in-
stance, especially in his later years, in Treitschke
Treitsehke and others.
No wonder, then, that this state that belongs to another order than
everyday human reality cannot be judged in the light of the standards
of personal life. To the state other rulesmIes apply, - whoever voices an-
public 0/
himself on a level with the pub/ic
other opinion by doing so puts hirnself
pothouse politicians and considers the repose 0/ the beer-house as the
ideal of virtue, to use Hegelian phraseology once more. (Hegel 1970,
pp. 540ss.) The moral principles of respect for another man's life, li fe , of
honesty etcetera hold for the domain of interpersonal relations, and
here people should continue
eontinue to live up to them. However, who mana-
ges the state's business should not shrink from casting aside common
morality, whenever the national interest requires it. Thus, reason 0/
State thinking implies a clear separation and discontinuity
diseontinuity of the mIesrules
regulating public over against private action. 13

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

282 Studia Spinozana 1 (1985)

cal pessimism, a conviction of the evil and incorrigible nature of man,

and a disbelief
dis belief in and aversion for utopian and idealistic thinking.
In particular, in this view, human reality - all of reality, for that
matter - is characterized by a pervading egoism, all action being moti-
vated ultimately by self-interest. For that reason human reality is con-
ceived as an arena dominated by a permanent struggle. So, the funda-
mental feature of human relations at all levels is conflict, whether
openly or latently. Reason oi 0/ State thinking, therefore, has a special
affiliation to conflict theories of human society. (G. Campbell 1981, in
particular pp. 38-40, 76 ss., sS., 179 ss.) So in Machiavelli, Hobbes,
Treitschke, Weber and other representatives of the idea of reason oi 0/
State, life is struggle and war, - not accidentally and avoidably, but
from the nature of the case and therefore inevitably.
Pre-eminently, then, this is thought to be the case at the level of po-
litical communities. In this conception, states are involved in a never
ending deadly fight, ruthlessly trying to supersede one another. There-
fore, the essential political phenomenon is might. All politics is striving
for power, - sometimes this is even an analytical truth, as was already
said earlier. At the very least this means: striving for self-preservation,
to hold wh what
at one has. However, might is to grow if it is not to be
lost. Standstill means decline, as already the Athenians were ready to
15

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

Wal, Reason of State 283

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.

2. The counterpart of this Machiavellian theory of international rela-

tions can be got from the foregoing by mirroring it point by point. In
that way also the Grotian (v. s., notes 6, 12) position turns out to dis-
play no less a degree of coherence than its opponent. Therefore for the
purpose of this article we can confine ourselves to a number of short
remarks here.
However important states may be in this alternative perspective, no-
ne the less they do not exist for their own sake and as ends in themsel-
ves. The political dimension, that is to say, cannot be considered all-
a11-
important in human life. Expressed otherwise: human life cannot be
Wh at it means to be human is, to an impor-
merged into citizenship. What
tant extent, definable outside, and even previous to, the political con-
332 Spinoza and Law

284 Studia Spinozana 1 (1985)

text. This means modifying the weight of political reality as a whole

and of the loyalty to a special community in particular. That is the rea-
son why an unmistakably universalistic (v.s., note 6) element forms
part of the Grotian conception in contrast to Machiavellian particula-
rism. Across the state boundaries there is a solidarity of humans qua
humans that binds them together, in spite of the fact that they are citi-
zens of different political communities.
The political dimension, we said, in this perspective is not only not
exhaustive for human life, but conversely is defined and regulated from
H, then, one askes further for the anthropology that is at issue
there. If,
here, two determining features can be indicated that are typical for
being human, and besides, that are thought to be related internally to
each other: Reason and sociality. (Grotius 1625/1939, Proleg., §§ 6ss.;
cf. Lauterpacht 1946/1975, pp. 333ss.) The former trait signifies that
being human means: giving life shape in a conscious, deliberate and
active manner, in short: being capable of self-determination and self-
control, in contrast with being manipulated like a puppet by external
forces. But this being pushed and pulled like a thing of nature, hap-
pens to man as far as he is a creature domina
dominated
ted by his passions. In
that quality he is living and acting impulsively and blindly. For that
reason, also, he unceasingly collides with his equally blind and irratio-
nal fellow-men. In the Machiavellian tradition, however, exactly this is
the image of man as, in the final resort, a passion-ridden being.
To the Grotian mind, so, conflict arises because people do not live
up to their proper nature. As reasonable creatures they are oriented to-
wards understanding and harmony. Peace, therefore, is the interperso-
nal situation that fits human nature, and not conflict. This, then, is
true no less for the domain of international relations. 18 So, war is all
but the natural situation between states, but unnatural and barbaric.
When we turn this Grotian complex of ideas yet a little and look at
it from one more angle, the following observation can be made: Hu-
man relations, qua human, are characterized not exclusively,
excIusively, and even
not primarily, by might, but by right. Not politics but right has the
last word here, the intention of right being to shape interhuman rela-
tionships in the spirit of the afore-mentioned basic features of human
nature, rationality and sociality. The line extends into the area of
international relations: humanity, as was observed already, does not
halt at the boundaries of states, nor does right being rooted in humani-
 Spinoza and Law 333

Wal, Reason of State 285

ty. Therefore, the pure will of states, being determined by self-interest

and supported by the available potential of power, is not accepted as
the only and conclusive factor here. In other words: the idea of sover-
eignty is modified.
But if international relations are under the primacy of mo rally mar-
ked right, this implies the rejection of a double moral standard in He-
gelian vein. And indeed, one of the fundamental traits of the Grotian
position is the unity and continuity between public and private morali-
ty. (v.s., note 13).19
As was noted above, Machiavellians build their philosophy of con-
flict on an axiological subjectivism. And in point of fact, conflict at
the interpersonal as weH
well as at the international level would be inevita-
ble and unsolvable - so there could be no such thing like perpetual
peace - , if the good would be of a subjective kind only. Consequently,
it is in the logic of the alternative position to attribute an objective sta-
tus to the good, or at least to the really good. Owing to its universal
validity it does not divide but unite people and for that reason can form
the basis of harmonious interhuman relationships. Mostly Reason,
besides other candidates such as conscience or a moral sense, is consi-
dered to be the organ with which to catch sight of this universal good.
It is obvious that this is the position of the Grotians.
Finally we found it to be characteristic of reason 0/ State thinking to
FinaHy
accentuate foreign policy. Of course, the Grotians are also interested in
this outwardly directed behaviour of states, the very point being that it
is at issue here as a conception of international relations. Nevertheless,
one can say that thought goes in the opposite direction here as compa-
red with reason 0/ State thinking. That is to say, there is a clear ten-
dency to look at international matters as a continuation of intranatio-
nal affairs and to conceive the former with the help of conceptual
means borrowed from the latter.
latter.z°
2o

3.After thus having opposed to each other both main conceptions

of international relations in a schematic fashion, we still want to dwell
for a moment on the two main topics on wh which
ich the discussion concen-
trates time and again. Relations between states, - apart from the situa-
tion of indifference, in which case relations simply do not exist - , can
ass
assume
urne a more friendly or a more or less openly ho stile character. In
the former case their most typical form are treaties, in the latter case
334 Spinoza and Law

286 Studia Spinozana 1 (1985)

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

Wal, Reason of State 287

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

We now return to our initial question, what can be considered to be

Spinoza's position in the controversy between the two traditions we
outlined in the previous section. Or, put otherwise: can Spinoza be
seen as a genuine representative of reason oj State thinking, as is main-
tained by several authors.
Doubtless there is a variety of reasons for thinking along these li-
nes. To begin with, there is Spinoza's basic tenet that all things are
characterized by the impulse of self-preservation, conatus proprium
esse conservandi. (E 4P18S; cf. E 3P6-8) So this is true for the state
just as much. For this reason Spinoza considers the problem of the
constitution of the state from the viewpoint of the dur ability (TTP 17;
19; TP 1/6; 6/4,8,39; 7/28; 8/12) of the body politic, an approach as
is known from MachiavellL
Machiavelli.
Closely connected to this, further,
furt her , is the identification of might and
right. As might or power (potentia) is essential for all of reality, (e.g.
E3 P8) - according to Spinoza, to exist is to exercise power - , so might
is also the basic phenomenon at the political level and the key to the
understanding of the political reality. Also in this respect Spinoza
seems to take his stand on Machiavellian ground, in opposition to the
Grotian way of thinking. For, there, right is understood exactly as
336 Spinoza and Law

288 Studia Spinozana 1 (1985)

being not of the same order as might, on the contrary, as something in

its own right that limits and tames power. Just this contention that
right could have the function of restraining and civilizing power is seen
as an illusion from the other side, and Spinoza seems to share this rea-
lism and anti-utopianism. (TP 111,5;
1/1,5; cf. TTP 19) And in line with this
one could mention his opinion that mostly people are anything but rea-
passion;?
sonable, being driven by their evil passions P which inevitably bring
them in collision with one another. Consequently conflict is the natural
modus of relations between human beings. (TP 2/5,14; 8/12) At the
political level this fact is reproduced in the form of the natural situa-
tion of war between states.28
Further , if we recall the two main topics in the area of interstate re-
lations that were discussed above, viz. war and treaties, in both cases
Spinoza at first sight leans towards Machiavellism. One finds utteran-
ces in which an unqualified liberty of states is recognized to go to war
whenever it pleases them. 29 And his opinion concerning treaties,
shocking as it has been in its frankness to not a few, is sufficiently
known, viz. that pacts are in force only as long as they are considered
useful and that astate is at liberty no longer to observe them at the
moment they have ceased to serve its interests. (TP 3/14)
Finally, to mention still one more feature of the Machiavellian
complex of ideas, in Spinoza's
Spinoza 's work one can find statements to the
effect that other rules apply to state activity than to the field of private
action. Thus, already on the first page of the Tractatus politicus, in a
passage about the subject of deceit in politics (!), he turns against those
(pre-eminently the theologians) who believe that government in looking
after the public affairs should observe the same moral rules to which
the private man is bound (TP 112).

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

Wal, Reason of State 289

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

290 Studia Spinozana 1 (1985)

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

Wal, Reason of State 291

population are reflected in the shaping of foreign policy. In Kant' s

own words: If (as cannot be otherwise under this thii8 constitution) the
whether
consent of the citizens is required to decide wh ether there shall be pea-
ce or not, nothing is more natural than that they will think twice befo-
re beginning such a bad undertaking. For they would lay all mis- ery of
war on themselves ... (Kant 1922, pp. 350s.). Likewise, Spinoza holds
that, whereas in a monarchy a person (the king or prince) is often
entrusted with authority for the sake of war, so that he, therefore, can
best show his talents and all that is expected from him in war, (TP
6/5) on the contrary it is typical (of democracy) that its good proper-
ties come to the fore much more in time of peace than in war. (ibid.) it
is not in the last instance because of this feature that democracy has to
be preferred as form of government.
In line with this, also for the monarchical and the aristocratic forms
of government Spinoza indicates how peace might be secured by means
of measures in the internal sphere: in the case of monarchy by not per-
mitting standing paid armies, but only military forces existing of citi-
zens (TP 6/10, 31; 7/12, 17, 22, 28), in the case ca se of aristocracy by
awarding the senators (Patricii) a share (a hundredth or a fiftieth part)
in the value of the exported or imported goods ensuring thus that peace
is more profitable 10
to them than war (TP 8/31).

If we pause for amoment, here, we can recapitulate our findings:

the anthropology and axiology which are characteristic for Machiavel-
lism do not find support in Spinoza; in agreement with that his politi-
cal philosophy is not under the aegis of unavoidable conflict, but of
peace and harmony, understood not merely in the negative sense as a
peace of the cemetery, but as the situation in which freedom reigns and
the real potentialities of man can develop; foreign policy, finally, is no
business of its own independent of internal affairs, and is approached
by Spinoza exactly
exacdy from that angle.
concIusion leads over to a final important point of discus-
This last conclusion
sion between the two traditions: the question whether, or not, the state
is an entity in its own right with all its consequences. As far as Spinoza
is concerned the answer to that question can only be negative. In his
universe of thinking it is out of the question that human life would find
its destination and completion in and through the state. Quite on the
contrary, the mode of being that, strictly speaking, is in accordance
340 Spinoza and Law

292 Studia Spinozana 1 (1985)

with human nature and its potentialities, is a life conducted in a spiri-

tual way. Only in a life like that is happiness in a proper sense attaina-
ble, resulting from the true knowledge of God, that is, the intuition of
reality sub specie aeternitatis. All things that, in the political way of
life39 , are held in great esteern, as in particular honour and farne, are
qualified as only seemingly good by Spinoza (TTP 3, beginning). They
can only appear to be really something good to people who have not
yet attained the true insight. The peculiar thing about these apparently
good things, however, is that they can only be had while at the same
time excluding other people from their enjoyment, this in co contrast
nt rast to
true happiness and well-being. For those who puersue their real interest
in the spirit of Reason also desire the well-being of their fellow-men (E
4P18S; E 4P37; E 4P39S; E 4P72S; cf. TTP 14, beginning)i.
So, man does not find his destination at the political level and it is
only in a very special sense, also, that Spinoza can attach meaning to
the expression sodal animal as adefinition of human nature. (TP
2/15; E 4P35S) For human nature as it is initially conceived by Spinoza
does not contain an inherent orientation towards fellow-men and socie-
ty. It is only by a fact of life, so to say, that human beings turn out to
be incapable to survive without mutual aicfD. aicfO. So in a secondary sense
only, man canbe said to be a social being and citizen: For men are not
born as dtizens, but they become so.
Citizenship, that is to say, only concerns an external aspect of hu-
man existence: the state can be seen as an evil that is necessary becau-
se, generally, people do not live under the rule of Reason but of the
passions. After allall,, if people were accustomed by nature only to desire
what is truly reasonable, sodety
society would not need laws, but the teaching
of moral lessons would suffice to do the truly useful voluntarily and
spontaneously. (TTP 5) In other words: the state as an institute that is
superfIuous. But,
build on authority and coercion would be superfluous. Eut, as Spinoza
observes,as to human nature the facts are different; for alt all are striving
after their advantage, not according to the precept of sound Reason,
however, but they desire things only under the impulse of the lusts and
passions of the soul (ibid).
Under those circumstances the state creates a form of coexistence, a
modus vivendi approximating in an extern al fashion the situation as it
external
would be if all were living in accordance with Reason. The state, that
is to say, exists for the sake of the many, - the same is true, by the
 Spinoza and Law
Spinoza Law 341

Wal, Reason of State 293

extern al aspect of making people behave

way, of religion as to its external
piously - (TTP 15, end). In its own manner, by means of decrees or
perhaps coercion, it brings about an order of things in society that can
only properly be the fruit of rational insight. Only from this source can
the genuine freedom, peace and harmony between people arise, whe-
reas the externally induced order of the state can be no more than a si-
tuation of armed peace.
So, also in this last respect, in spite of a prima facie affinity to
reason 01oi State thinking, Spinoza stays at considerable distance from it
after all. Far from localising in the sphere of the state what is really
characteristic of man, it is exactly outside the political reality that it
has to be sought, stronger yet, it would even lead to the abolition of
directly in the state as
the state. Spinoza, therefore, is not interested direct1y
such, but only in certain things of a non-political kind
kinct422 that take place
under its wings and for which it only creates the external conditions.
The political order, therefore, has no more than an instrumental signi-
ficance in Spinoza. It is not by chance that he drives back the influence
of the state as far as possible and withdraws from its jurisdiction all
those aspects of human life that are considered essential. (TTP 17, 20)
According to Spinoza the best for man (and for the state, for that mat-
ter!) is that the inner circle of human existence should remain free from
state intervention. For, there, things are at stake that people cannot
freely abandon without at the same time loosing their very humanity.
(TTP praef.; 17, beginning; TP 7125, end) No man, however, can sur-
render hirnself like that, as it runs contrary to the basic impulse of all
reality to pr es erve its being and identity. There can be no doubt that
preserve
for Spinoza the real (philosophical) reason for preferring the democra-
tic form of government has to be sought here, viz. that to the largest
possible extent as compared to other constitutions people remain their
own masters. (TP 11/3) Or, as Spinoza also puts in, the best constitu-
tion is that approximating most closely the state of nature, in other
words: under wh ich the influence of the state is reduced to an indis-
which
pensable minimum and citizen 's liberty is maximized. (TTP 16,20)
Adherents of reason oi 01 State thinking consider the political as an
irreducible last reality and in the first place address themselves to tho-
se who think along the same lines. Spinoza, however, has in mind an
audience of philosophical readers 43 first of all. And, indeed, his argu-
mentation in political matters can only be fully understood and seen to
342 Spinoza and Law

294 Studia Spinozana 1 (1985)

be valid if it is read in a philosophical perspective. Though Spinoza

also uses quite a number of pragmatic arguments44 that might be able
to lend his views a certain plausibility in the eyes of politicians and
other non-philosophically
non-philosophicaHy minded people, these arguments only gain a
conc1usive force within a philosophical frame of thinking. Political
conclusive
ideas, one can say, only have a provisional validity the real meaning of
which is only revealed from the philosophical point of view.
This, provisionality,
provisiona/ity, and relativity, for that, in fact is characteristic
aH political thinking within the whole framework of Spinoza 's phi-
for all
losophy. It does not represent the highest attainable point of view, that
of intuitive philosophical knowledge. Human existence in its fuH full sense,
Spinoza teaches us, is self-development in a life in accordance with
Reason, in which man realizes his proper potentialities and true nature.
To create the conditions for a life like that and, for the many who do
not have the ability to go the way of inner perfection by philosophical
insight, to approximate it in an external manner, is the role and func-
tion of the state. Thus it inserts itself in the total perspective of
Spinoza 's philosophy as to its place and relative significance. It hardly
needs to be said, by way of conclusion,
conc1usion, how far off we are here from
the tradition of reason 0/ State thinking.

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

Wal, Reason of State 295

ve chosen does end, in particular, what it does not perform. By step-

ping outside the Spinozistic outlook, by causing a kind of alienation, so
to speak, it may be possible to get a fresh look on well-known matters.
What it does not perform, at least not directly, is to show how in
speeifie framework and so
Spinoza 's philosophy things are put in a specific
get their eharaeteristie
characteristic Spinozistic shape and meaning.
At this point, in other words, the investigation would have to be ta-
ken up once
onee again.

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

296 Studia Spinozana 1(1985)

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

Wal, Reason of State 297

expressions have in the afore-mentioned authors.

13 Cf. Bismarck (the master 0/ of modern reason 0/ of State, Meinecke 1963 3 , p. 481 note)
Pub/ic opinion is only too ready to consider political relations and events in the light 0/
: Public of
those 0/ of civil law and private persons generally .. . (This) shows a complete lack 0/ of un-
derstanding 0/ of political
politieal matters (quoted by Walzer 1977, p. 63).
If the term domestic analogy (Bull) (BuH) is used to refer to the view that national and
international society are importantly similar, the same (legal and moral) mies rules applying to
both, the point at issue can be restated as follows:
foHows: Machiavellians reject the domestic an-
alogy upholding the view that the system of states forms a unique part of reality, whe-
reas Grotians accept the analogy in one form or another. So Lauterpacht notes: In fact,
one 0/ of the most decisive features 0/ teaehing 0/
of the teaching of Grotius is the dose analogy 0/ of legal
and moral rules governing the conduct 0/ of States and individuals alike (Lauterpacht
1946/1975, p. 336). Cf. ,,e.g.
e.g. , C. van Vollenhoven
VoHenhoven 19232 , p. 74 and pass.
14 Well-known in this respect is Machiavelli 's /s expression conservare iI stato. In his
thinking the central normative category of politics is that of the durability and stability
of the state.
15 The /undamental
fundamental principle (of the great monarchies) was permanently to attack all
in order to enlarge themselves unceasingly .. , Ffederic le Grand, quoted by Meinecke
19633 , p. 340. Cf. ibid. pp. 356, 358, 435. See already Cicero 1979, III, 15.
16 War as a political act and a continuation 0/ of political
politieal commerce and a carrying out
0/
of this by other means.
17 See Fischer Lexikon Staat und Politik (Hg. E. FraenkellK.
Fraenkel/K. D. Bracher, Frankfurt/M
1967), s. v. Außen- und Innenpolitik, 33 ss. Cf. Meinecke, op. cit. , p. 10,351.
In the third book of Cicero 's /s De republica the question is discussed whether injustice
is useful to the state. Already in this context the illustrations are taken from the domain
of /oreign poliey: ... we do not permit those people beyond the Alps to plant their olives
foreign policy:
and vines, only in order that our olive-gardens
o/ive-gardens and our vine-yards yield a higher profit
(Cicero 1979, III, 16ss.).
18 So Grotius states, right at the outset of his De jure belli ac pascis , that war is begun
be/li ae
for the sake 0/
/or of peace and has peace at its end (I, 1), and ends his book in the saltle same vein
(III, 25, 1-3).
19 Van Vollenhoven summarized Grotius' Grotius / doctrine in four theses or theorems, the
first of which reads: The conduct 0/ of nations among each other is to be judged just as the
conduct 0/ of individuals. There is only one equal moral standard /or for both. Quoted by G.
H. J. van der Molen 1937, p. 132. See also theorem 4.
20 As is the case in mediaeval political theory, where international relations have not
yet a standing of their own. In Thomas, e.g. , war is treated in terms of police action,
see Hehir 1979, pp. 123, 131.
346 Spinoza and Law

298 Studia Spinozana 1(1985)

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

Wal, Reason of State 299

Cf. TTP 5: ... veram vivendi rationem ..

CL
34 TP 8/31; cf. 5/2:
512: peace and security of Iifelife as objects of the state.
35 Ibid. One cannot help being reminded, here, of Kant's satirical hint, right at the
outset of Perpetual Peace, at a false idea of peace, viz. that of a cemetery.
36 TP subtitle (pax libertasque
Iibertasque civium); 7/15; 8/7.
37 In this sense Spinoza can rightly be said to represent an early form of liberalist
thinking (see, e.g. , Cohen 1946 and Feuer 1958).
--Cf. for a similar position in respect to foreign policy, e.g. ,,Wilhelm
--CL Wilhelm von Humboldt
1851, ch. 4 and 5.
38 Republicanic in Kant
Kant's 's terminology, where we would use the word democratic.
39 One is reminded here of Aristotle's
Aristotle 's distinction between the Iife
life of politics or action
(bios politik os) and the Iife
life of contemplation (bios theoretikos), Nicomachean Ethics I,
3; X, 7 ss. Whereas the good of the former is honour (time), the good of the laUer latter is
theoretical wisdom which constitutes real happiness.
40 TP 2/15 (mutuum auxilium).
512 (Homines enim civiles
41 TP 5/2 civi/es non nascuntur, sed fiunt). Cf.CL TTP 17 (Nature does
not create nations, but individuals,
individua/s, Haec (i.e. Natura) sane nationes non creat, sed
individua ... ).
42 all concerning man's real good: true knowledge.
43 TTP, praef. Regularly, Spinoza uses expressions that can only be under-stood if
one assurnes
assumes that he addressed hirnself
himself to a legislator in the ancient sense, that is, to a
person gifted with a superior insight who arranges the entire way of life Iife of a people and
makes them good by means of good laws. See in particular the places where Spinoza
speaks of arranging (instituere; constituere) the state in a certain manner, e.g. TP subtit-
le; 1/6; 6/3; TTP 17. With relation to Rosseau, cf. Brandt 1973, p. 45: Der es (Contrat
Social) wendet sich nicht ans Volk ... , er ist kein Lehrbuch für viele, sondern für einen:
den Legislateur. Cf. pp. 16, 19, 22, 116ss.
44 See, e.g. ,the list of dangers to itself the state would conjure up by curtailing the
freedom of thinking and speaking, TTP 20, cf. 18.

BIBLIOGRAPHY

Bodin, Jean: Six livres de la Republique. (Paris : Du Puys, 1583.)

(Repr. Aalen: Scientia, 1961.)
Bol/mann, Kar!:
Karl: Verteidigung des Machiavellismus. (Quedlinburg :
348 Spinoza and Law

300 Studia Spinozana 1 (1985)

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

Wal, Reason of State 301

ke in 20 Bänden; 1), pp. 461-581.

Hege!, Georg Wilhelm Friedrich: Vorlesungen über die Philosophie
Heget,
der Geschichte, 4. Aufl. (Stuttgart : Frommann Holzboog, 1961.)
(Idem: Sämtliche Werke: Jubiläumsausg.; 11.)
(ldem:
Hehir, J. Bryan: The ethics of intervention: Human rights and V.S. U .S.
foreign policy : Principles and applications, Peter G. Brown and Doug-
las MacLean (eds.) (Lexington, Mass. : Lexington Books, 1979), pp.
121-139.
Hofmann, Hans Hubert:
Huber!: Zur Phänomenologie des modernen Staa-
tes. In: Die Entstehung des modernen souveränen Staates, hrsg. von
Hanns Hubert Hofmann (Köln, Berlin : Kiepenheuer & & Witsch, 1967)
(Neue wissenschaftliche Bibliothek; 17), pp. 97-99.
Heydte, Fr.A. von der: Die Geburtsstunde des souveränen Staates:
Ein Beitrag zur Geschichte des Völkerrechts, d. allg. Staatslehre und
des politischen Denkens. (Regensburg : Habbel, 1952.)
Humboldt, Wi/helm
Wilhelm von: Ideen zu einem Versuch die Grenzen der
Wirksamkeit des Staates zu bestimmen. (Breslau : Trewendt und Gra-
vier, 1851.)
Jaspers, Karf:
Kar!: Die Atombombe und die Zukunft des Menschen: Po-
litisches Bewutsein in unserer Zeit. (München: Piper, 1960.)
Kant, Immanuel:
Immanue!: Zum ewigen Frieden: Ein philosophischer Entwurf
: Idem : Abhandlungen nach 1781, Kgl. Preu. Akad. d. Wiss. Berlin
(Hrsg.). (Berlin : G. Reimer, 1912.) (Idem: Gesammelte Schriften ;8.),
pp. 341-386.
Lauterpacht, Hersch: The Grotian Tradition in International Law.
In: Idem: International Law : Collected papers, E. Lauterpacht (ed.),
vol. 2 (Cambridge : VP,UP, 1975), pp. 307-265. First in: British Year Book
of International Law 23(1946), pp. 1-53.
Lauterpacht, Hersch. Spinoza and international law n: Idem :
International Law : Collected papers, E. Lauterpacht (ed.), vol. 2,
(Cambridge : VP, UP, 1975), pp. 366-384.
Mach ia velli, Nicolo:
Nico!o: Discorsi sopra la prima deca di Tito Livio In:
Idem : 11Il priincipe e Discorsi... Con introd. di G. Proccari e a cura di
S. Bertelli, 2. ed. (Milano : G. Salerno, 1968.) (ldem
(Idem : Opere ; 1.)
Meinecke, Friedrich: Die Idee der Staatsräson in der neueren Ge-
schichte. Hrsg. u. eingel. v. Walter Hofer. (Stuttgart : Koehler ; Mün-
chen : Oldenbourg ; Darmstadt : Toeche-Mittler, 1963.) (Idem: (ldem: Werke
; 1.).
350 Spinoza and Law

302 Studia Spinozana 1 (1985)

Menzel, Adolf: Beiträge zur Geschichte der Staatslehre. (Wien ;

Leipzig : Hölder-Pichler-Tempsky, 1929.) (Sitzungsber. d. Wiener
Akad. d. Wiss., philos.-hist. Kl. ; 210/1.) Repr. Glashütten i.Ts. :
Auvermann, 1976.
Menzel, Adolf: Spinoza und das Völkerrecht. Zeitschrift für Völker-
recht 2(1908), pp. 17-30.
Molen, Gezina H.J. van der: Alberico Gentili and the development
of international law : His life, work and times. (Amsterdam : H.J. Pa-
ris, 1937.)
Mugnier-Pollet, Luden: Relations internationales et etat de nature
selon Spinoza : Giornale critico della filosofia italiana 56(1977), pp.
489-499.
Ranke, Leopold von: Die großen Mächte/ Mächtel Politisches Gespräch.
(Göttingen : Vandenhoeck & & Ruprecht, 1963.) (Kleine Vandenhoeck
Reihe; 5.)
Rohatyn, Dennis: Spinoza's Emotivism In: Spinoza's metaphysics :
Essays in critical appreciation, J .B. Wilbur (ed.) (Assen : van Gorcum,
1976) (Philosophia Spinozae perennis ; 1), pp. 29-35.
Staat und Politik; Ernst Fraenkel und Karl Dietrich Bracher
(Hrsg.). (Frankfurt a. M.: Fischer, 1967.) (Das Fischer Lexikon; 2.)
Suarez, Francisco: Tractatus de legibus ac Deo legislatore in decem libros
distributus. (Coimbra: Apud Didacum Gomez de Lovreyro, 1612.)
TeIlenbach,
Teilen bach, Gerd: Church, State, Christian society at the time of the
investiture contest; transl. by R.F. Bennett. (New York : Harper &
Row, 1959.) (Harper Torchbooks»
Treitschke, Heinrich von: Politik
Politik:: Vorlesungen gehalten an d. Univ.
zu Berlin. 3. Aufl., 2 Bde. (Leipzig: G. Hirzel, 1913.)
Verdroß, Alfred: Das Völkerrecht im Systeme von Spinoza. Zeit-
schrift für öffentliches Recht 7(1928), pp. 100-105.
Vollenhoven, C. van: De drie treden van het volkenrecht; 2e druk.
(('s-Gravenhage
's-Gravenhage : Martinus Nijhoff, 1923.)
Wal, G.A. van der: Hugo de Groot en de idee van de rechtvaardige
oorlog. Wijsgerig Perspectief 23/3 (1982/83), pp. 59ff.
Walzer, Michael: Just and unjust wars. (New York : Basic Books,
1977.)
Walzer, Michael: Political Action:
Action : The Problem of Dirty Hands.
Philosophy and Public Affairs 2(1973), pp. 160-180.
 Spinoza and Law 351

Wal, Reason of State 303

Weber, Max: Politik als Beruf. In:Idem

In:ldem : Gesammelte politische
Schriften,mit e. Geleifwort
Geleitwort v. Theodor Heuss, J. Winkelmann (Hrsg.),
(Tübingen : Mohr, 1980), pp. 505-560.

ZUSAMMENFASSUNG

Mit der Heraufkunft des modernen Staates, an der Schwelle der

Neuzeit, entsteht zugleich das Phänomen der zwischenstaatlichen Bezie-
hungen. Seitdem gibt es in der politischen Theorie der Neuzeit, die also
Lehre vom Staat ist, eine Theorie der internationalen Beziehungen. Da-
bei können grosso modo zwei Traditionen unterschieden werden, die
machiavellistische, welche als ihre zentrale Kategorie die Idee der
Staatsräson hat, und die grotianische, welche den Staat, auch in seinen
auswärtigen Beziehungen, als vom Recht bestimmt denkt.
Die Frage, der wir in diesem Artikel nachgegangen sind, ist, wo Spi-
noza in der Auseinandersetzung zwischen diesen beiden Richtungen
anzusiedeln ist, weil er hinsichtlich seiner politischen Philosophie so-
wohl als Repräsentant der einen wie der anderen Tradition betrachtet
worden ist. Zur Beantwortung dieser Frage werden im Mittelteil des
Artikels die beiden Positionen beschrieben und in ihre wichtigsten
Komponenten zerlegt. Die Idee der Staatsräson steht dabei für eine Be-
trachtungsweise, die Politik als Angelegenheit der Macht deutet, beson-
ders auch Recht auf Macht zurückführt; Staaten als Entitäten in eige-
nem Recht sieht, die nur dem Gesetz ihres eigenen Nutzens (Fortbeste-
hens) unterworfen sind; einen scharfen Strich zwischen öffentlichen und
privaten Angelegenheiten zieht (mit dazugehörigem Doppelstandard);
einer subjektivistischen (non-kognitivistischen) Axiologie huldigt;
menschliche Beziehungen grundsätzlich als konflikt-bestimmt denkt;
und schließlich durch den Primat der Aussenpolitik charakterisiert ist.
Die grotianische Richtung in der Theorie der internationalen Beziehun-
gen kann auf der ganzen Linie als die Gegenposition zur machiavelli-
stischen bezeichnet werden.
Im dritten Teil des Artikels werden Spinozas politische Schriften im
Lichte der vorangehenden Analyse befragt. Wir kommen dabei zu dem
Ergebnis, daß, entgegen einer verbreiteten Auffassung, welche Spinoza
352 Spinoza and Law

304 Studia Spinozana 1 (1985)

als Denker der Staatsräson versteht, bei ihm in wichtigen Punkten eine
klare Affinität zu der grotianischen Position zu verzeichnen ist.

G.A. Van Der Wal (Rotterdam)

 Part V
Individual Rights
 [18]
Esse sui juris and Political Science*

Paolo Cristofolini

1. 'Esse sui juris'

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:

homines magis caeca cupiditate, quam ratione ducuntur ... Equidemfateor;

Equidem fateor, cupiditates illas, quae ex
ratione non oriuntur;
oriuntur, non tam actiones, quam
quampassiones
passiones esse humanasY'
humanas. lO

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:

Nec ad imperii securitatem refert,

re/ert. quo animo homines inducantur ad res recte administrandum.
administrandum, modo
administrentur. 12
res recte administrenturY

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.

3. Philosophers and Rulers. The Platonic Model

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

One may even think ofadvancing

of advancing again the problem ofSpinoza's 'Platonism' -not- not really in
the same terms posed by Leon Brunschvicg, who claimed c1aimed that Spinoza was a Platonic because
he was a Cartesian, that is, because his Cartesian inheritance took hirn back to idealism; but
rather in the perspective of an open and critical research of his sources.
Much like in Plato's texts, especially as they appear in AI-Farabi's collected version,26
Spinoza develops a political theory in which forms of govemment are not of paramount
importance. There is no need to recall Spinoza's preference for democracy. However, in the
Political Treatise, Spinoza makes the decisive element allowing the distinction between the
good and the bad civitas depend upon the level of rationality achieved rather than upon the
form of govemment. The fact that Spinoza's last effort remained incomplete precisely in the
part dealing with democracy does not allow us to establish whether his intention was to exalt
this form of govemment above all others (as he had done in 1670) or simply to describe the
characteristics of
ofthe
the 'omnino absolutum imperium'.27
imperium'Y Whatever the case may be, there is a
new attitude. And let us not withhold that this new attitude cannot be interpreted as a retreat
from his earlier political positions, following the changed and improved circumstances in
the United Provinces since 1672. Even if ifthe
the circumstances following the murder of OeDe Witt
were bound to have strong repercussions on Spinoza's political thought, the change must be
grasped not as political involution but as theoretical evolution. With the Ethics, Spinoza had
created a new model of ofscience,
science, which he now applies to politics; and he applies it not merely
with consolidation and conservation (securitas) in mind, but also with the purpose ofreaching
the esse sui
suijuris.
juris. All the political structures that he conceives and proposes can and should be
organized in such a way that enables the expansion ofthe human conatus.
He thus refutes all utopias by using a language that derives from Machiavelli and in terms
that call to mind, perhaps controversially, even Plato's Republic. 28 Spinoza parts surely from
Plato (although only from the Republic, not from the Laws or from Letter VIf) only on one
issue: the identification of
ofphilosophers
philosophers with rulers.

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

However, the rejection of utopias is motivated by a complex attitude towards abstract

models, and aims at introducing some level of rationality into the form of govemment
that every single nation or city has as a result of its history. That was Plato's intent against
Dionysius of Syracuse, who did not wish to yield his office to philosophers but rather to
become a philosopher hirnself.
This way, the following aspect of AI-Farabi's Platonism can be picked up and proposed
anew:

Explicavit deinde non omnibus esse idem praeceptum servandum,

servandum. sed unicuique genti praecepta esse
sua quae ad caeteras non pertinent. 29

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

29 AI-Farabi, Compendium Legum Platonis, p. 11.

30 EV42Sch.
30

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 to become an adequate cause ofinstitutions

of institutions that are somehow responsive to reason.
In
[n this sense, the freedom of wise men, which appears as private virtue in an often quoted
passage ofthe Political Treatise,34 is different from the State's virtue (security). But they are
not contrasting views. The freedom ofwise men is the condition and the active pole by which
public
pub[ic virtue emerges: 'Iibertas
'[ibertas agenda necessitatem non tollit, sed ponit'
ponit'.35
.35 It imposes the

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.

4. Spinoza's Political Rea[ism

Realism

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

Political science, insofar as it establishes practical models by which to channel individual

and collective passions rationally, induces the transition from passive being to active being. A
State formed in such a way as to be termed sui juris will create necessarily those conditions
by which singular men (in growing numbers) become sui juris in the strong sense, that is,
rational and active. This way, the Political Treatise's research follows the same route of
self-improvement pervading the Ethics; at the same time, it reclaims coherently from the
beginning of the De intellectus emendatione the project of a human collectivity progressing
towards a superior nature.
 [19]
Spinoza on Positive Freedom

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.

Isaiah Berlin's inftuential

influential attack on the positive concept ofliberty has set much of
tradition.. Liberal theorists have
the tone for political thought within the liberal tradition
echoed the warnings about any account which sees freedom as the expression of
the 'rational' or ''true' self. as the fulfilment of the 'real' or 'authentic'
true' self, 'authentie' interests
rather than the actual preferences ofthe agent. By and large these theorists have
shared Berlin's fefear
ar that by a 'monstrous impersonation' aa positive notion of
freedom would encourage that particularly insidious form ofpaternalism which
views coercion as the essential means to true freedom. Paternalistic coercion
aceording to the dictates ofmy real will,
forces me to act according to my true self, according
and thereby allegedly frees me from the tyranny of the misguided and irrational
of my actual will
promptings ofmy will.. Coercion can make me truly free.
free . Berlin attributes
what he diagnoses as the 'rationalist theory of politics' underlying positive
accounts of freedom to such diverse figures as Plato, Spinoza, Rousseau, Kant, Kant.
Hegel, Fichte, Comte and even Locke.! Bentham and Constant figure as lonely
representatives ofthat
of that tradition ofliberalism satislied
satisfied with the more modest but
Iess
less dangerous
dangeraus ideal of negative Iiberty.
liberty. Bentham is celebrated for recognising
that freedom also involves the freedom to do da wrong, to behave in ways which
authority, may regard as irrational or even evil
other people, especially people in authority,
for, in Bentham's words, 'Is 'Js not liberty to do
da evil, liberty? If not, what is it?,2
Jf not,
Only the tradition of negative liberty recognises that virtue is not equivalent to
knowledge, that the 'ends of all rational beings' bcings' may not 'fit into a single
universal, harmonious pattern', that there is an irreducible
irreducihle plurality of ultimate
all Ihose
•* I would like to thank a11 those people who offered comments on an earlier draft of this paper. in
Ihis paper,
particular David Boucher. Geoffrey Brennan,
Brennan. Moira Gatens,
Gatens. Philip Pettit and Glenn Worthington
Worthington..
I] Isaiah Berlin,
Berlin. Two
'Two Concepts of Liberty' in Four Essays on Liberly (Oxford. Oxford University
Liberty (Oxford,
Press,
Press. 1969), p. 15\.
1969J,p. 151.
, CiCited
ted by Berlin. Liberty·., p.p. 148, (footnote).
Berlin, 'Two Concepts of Liberty' (footno\e),
368 Spinoza and Law

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

Hegel, Marx and the Reification of Positive Freedom

In common with much twentieth-century political thought it is the double
trauma of fascism and Stalinist communism which forms the implicit backdrop
back drop
for Berlin's strictures on positive freedom. He observes that 'socialized forms' of
this doctrine of freedom are 'at the heart of many of the nationalist, Marxist,
authoritarian, and totalitarian creeds of our day'.5 He presumably refers to the
same ideologies when he remarks that the tendency to 'preserve our absolute
categories or ideals at the expense of human lives' is 'an attitude found in equal
measure on the right and left wings in our days'.6 Indeed, Berlin's diagnosis
dia gnosis of
the dangers
dan gers of positive freedom can be applied with reasonable success to these
creeds. In what
wh at folIows, I shall confine my remarks to Hegel and the problematic
re1ationship
relationship of Marxism and liberty.
ofMarxism
Berlin describes aseries of stages in the evolution of a fully-fiedged
fully-fledged and
insidious concept of positive freedom. As he admits, his initial definition of
positive freedom is not too distant from the notion of negative freedom: 'The
"positive" sense of the word "liberty" derives from the wish on the part of the
individual to be his own master'.7
master'.? The relevant notion ofpositive freedom is the
result ofthe transition, by what Berlin describes as an 'independent momentum',
momentum' ,
to a much stronger Fram the 'experience of liberating myself [rom
stranger notion. From from
spiritual slavery, or slavery to nature' J become aware of a 'higher nature', a self

,J Berlin, 'Two Concepts of Liberty', p. 154.

ofLiberty',
4 In this respeet Spinoza differs from Kant. According to Kant also we cannot be coerced to be
good, because for people to act in the right way involves them 'knowing why they ought to do so,
which nobody could do for, or on behalf of anYOlle
anyone else' (Berlill,
(Berlin, 'Two Concepts of
ofLiberty'.
Liberty'. p. 152).
Berlin. the Kantian legislator will almost inevitably assume that anyone
Nevertheless, according to Berlin,
who opposes wh what
at is evidently a rationallaw is pro tanlo
tanto irrational and must be disciplined for his or
her own sake. I shall not discuss the force ofthis claim against Kant. My concern here is to argue that
Spinoza's philosophy and, in particular. his ethics and his philosophy of ofmind,
mind, do not allow the same
assumption.
Liberty·. p. 144.
,5 Berlin, 'Two Concepts of Liberty'.
,6 Berlin, 'Two Concepts of Liberty', p. 171.
7 Berlin, 'Two Concepts of ofLiberty',
Liberty'. p. 131.
 Spinoza and Law 369

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.

" Berlin, 'Two Concepts of Liberty', p. 132.

11

" Berlin, 'Two Concepts of Liberty', p. 132.

13 Berlin,
IJ Berlin. 'Two Concepts of Liberty',
Liberty' , pp. 133-4.
" G. W. F. Hegel
14 Hegel,, The Philosophy o( Right (Oxford, Clarendon Press, 1952), p. 23
Phi/".l'Ophy of 23..
370 Spinoza and Law

Debate 287

according to the dictates ofthis

of this rational will, the individual both conforms to the
ethical demands of the community and fulfils her true self, achieving the positive
freedom of concrete self-realisation rather than the abstract and, in Hegel's
terms, mere1y
merely negative freedom of Kantian autonomy.
However the Hegelian solution is ftawed. f1awed. Against Kant's transcendentalism,
Hege1
Hegel maintains that there can be no critical vantage point outside of society, no
abstractly rational and universal 'morality' (Moralität) in terms of which a
society might be criticised. Rather the individual must rely on 'ethical life'
(Sittlichkeit) or the concrete values of a particular community. However Hegel is
calm about the absence of transcendental values, only because existing society is
oftranscendental
identified as an episode within a predetermined dialectic of'spirit',
of 'spirit', a stage in the
unfolding history of human self-development. As this dialectic is unique - all
se ries as either higher or lower forms - the only
societies are found a place in the series
position from wh ich existing society can be criticised is a later stage. The debate
which
between 'Ieft' and 'right' Hegelians arises from the obvious question which
remains. Should existing society be understood as essentially the last or as only
the latest stage ofthe dialectic? With the right Hegelian solution the individual is
effectively absorbed into an organic community conceived as the culmination of
effective1y
history. Far from society beingjudged
being judged in terms of its usefulness for its members,
ofits
individuals find their true fulfilment, their positive freedom, only by playing their
part within society. Because the developmentallogic of cuItural cultural forms is also an
ideal or intellectual onc,
one. individuals only have significance
significancc as representatives of
ideas or of the conflicts between ideas. The refractory
refraetory material of the particular
human individual, the material basis for difference, is left behind. The
suppression of individuality which Berlin attributes to Hegelian worshippers of
the state is at hand. 15
The absorption ofthe
of the individual into the thc history of an idealized community is,
in a different way, also at the heart ofthe sacrifice ofnegative freedom perpetrated
by Marxism, though this time on the left Hegelian assumption that present
society will inevitably be replaced by a higher one, a later stage in the dialectic.
Marx provides an at least partially convincing critique eritique of Hegel's philosophy of
right. The apparently noble but abstract ideals of 'bourgeois' justice or 'right'
only serve to mask the exploitative realities of civil society. Bourgeois prineiples principles
of justice simply regulate and legitimise the antagonistic relations of capitalist
civil society, diverting attention from the necessary transition to a high er form of
higher
society where these relations would no longer prevail. A just society soeiety is inferior to
a society where the scarcity and selfishness which render justice necessary
(Hume's 'eircumstanees'
'circumstances' of justice) have been abolished. 16 However the initially
ofjustice)
attraetive
attractive utopian vision implicit in Marx's critique of capitalist alienation is
soon overwhelmed in the subsequent deve10pment
development ofhistorical materialism. The
consequentialism of most of ofits
its later exponents, their hard- headed view that the
end justifies the means, is fatally reinforced by absolute confidenee confidence in the
imminence of communism. The dangers are only too apparent in some of the

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

declarations of central figures in the Marxist traditiontradition.. Trotsky, for examplc,

example,
asserts that 'that is permissible ... . . . which really leads to the liberation of
mankind'17 and that 'no proletarian revolution, however mature, could avoid
ruthlessness and violence' .IS With a favourable outcome guaranteed, there is
violence'.lx
little danger that the revolution might be corrupted
corTUpted nor any real need for the
movement to engage in the battle for intellectual and moral leadership.19 The
absorption of the individual into the organic community is exacerbated by
historical prophecy.
prophecy.
In
[n fact, however, the syndrome which Berlin attributes to the positive
conception of freedom can more usefully be analysed as three distinct claims.
What I shall call the thesis 01 positivefreedom refers to the claim that the freedom
ofpositivelreedom
to do one's will does not guarantee the freedom of that will or the authenticity of
ofthat
one's wants. Negative freedom may not amount to real or genuine freedom but
this claim must be distinguished from what might be called the thesis olthe of the reified
self. The self is reified to the extent that it is regarded as an object of knowledge
selfis
which can be known, in principle, as weil well or better
bett er by a person other than that
self. This thesis is implied by any view which abolishes the privileged status of
subjective preferences.
preferenccs. There are several possible versions ofthe reification thesis.
The thesis 01 socia! self identifies the true
of the sociaf tTUe or authentie self with a social or
collective entity Ca tribe, arace, a church, astate').
astate'). On ce this identification has
been made it becomes plausible to suppose that the true tTUe interests ofthe
of the members
of the organically conceived society are more reliably ascertained by thc the
philosophical observer, the leader or the priest, by the revolutionary hero or the
party intellectual. It is this version of the reification thesis which can most
appropriately be attributed
attribuled to Hegel and Marx.Marx. Of course, other versions are
possible, for example, religious theories of the soul, the Kantian postulate of a
noumenal rationality or the naturalistic appeal to a biologically defined
normality.
norrnality.
Arguably, what is significant in each ca se is that the 'true' self is identified in
case
such a way that the views of someone other than that self become becorne authoritative.
The rational self can be understood more adequately by the moralist or the
legislator, the soul by the theologian or priest, biological normality by the natural
scientist. The member of the organic collectivity can only be truly free with the
help of a strictly imposed
irnposed discipline or sense of duty, or in astate of subjection to
dictatcs of a charismatic leader. Against Berlin, I would suggest that the chief
the dictates
danger derives from this pretension to a knowledge of someone's sorneone's interests or self
or will more adequate than that person' person'ss self-knowledge. Berlin's 'monstrous
impersonation' arises from the reification of the real self and its interests, not
from the thesis of positive freedom alone. In fact, as we shall see, considered by
itself the thesis of positive freedom
freedorn might
rnight equally weil be taken to discourage
rather than to imply a totalitarian outcome.
outcome. This outcome is not a necessary
consequence of the thesis of positive freedom
freedorn as such.

Spinoza: The Basis for an Alternative Account of Positive Freedom

What
Wh at seems inadequate, then, about Berlin's presentation is the implication
irnplication that
any positive conception offreedom involves a potentially tyrannical reification of

Ours. cited by Lukes, Marxism and MoralilY

"17 In Their Morals and Ours, Moralitv., p. 119.
Lukes. Marxism and
" Ci ted in Lukes, arid Moralily.
MoralilY. p. 114.
obviously has very different imp1ications.
" The Marxism of Antonio Gramsei obvious1y implications.
372 Spinoza and Law

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:

the law and ordinanee

ordinance of nature, under whieh
which all men are born, and far
for the
forbids nothing but what no one wishes or is able to do, and is
most part live, farbids
not opposed to strifes, hat red, anger, treaehery,
hatred, treachery, ar,
or, in general, anything that
appetites suggest."

Spinoza's 'realist' account is elose to Hobbes' description of 'the right of nature'

ofnature'
himse1fe, for the
as 'the Liberty each man hath, to use his own power, as he will hirnselfe,
preservation ofhis own Nature; that is to say, ofhis own Life; and consequently,
of doing any thing, which in his own Judgement, and Reason,Reason, hee shall conceive
to be the aptest means thereunto,.n
thereunto' .21
Spinoza also understands the origin of 'dominion' in terms of a founding
contract. The fear and anxiety which would infect life in the state of nature, the
se1f-defence when 'he is overcome
impossibility of an individual's maintaining self-defence
daily by sleep, often by disease or mental infirmity, and in the end by old age,l4
age'24
explain the origin of the 'commonwealth'. The natural right of the isolated
individual could never be made good in the state of nature and exists, therefore,
fact".. It finds its natural expression in a form of social
'in opinion rather than fact'
contract:

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

'" Benedict de Spinoza, 'A Political Treatise' in A Theologico-Political

:0 Theo!ogico-Political Treatise arid
and A P olitical
Politica!
Treatise, translated with an Introduction by R. R. H.
H .M. Elwes (New York, Dover Publications. 1951),
n
II 4, p. 292.
" Spinoza, 'Political Treatise', II
2J 11 19. p. 298.
Il 8, pp. .294.
" Spinoza, 'Political Treatise', 11 294.
" Thomas Hobbes, Leviathan (London, Dent, 1973), p. 66.
Treatise' , III 11, p. 306.
" Spinoza, 'Political Treatise',
Treatise' , n
" Spinoza, 'Political Treatise'. " 15, pp. 296-7.
296- 7.
 Spinoza and Law 373

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

What enables Spinoza to avoid the authoritarian conclusions to which

Hobbes' similar premisses so swiftly and surely seem 10 to lead? The crucial
difference derives from Spinoza's positive conception of freedom and the related
metaphysical account of the individual. In Spinoza's system, human beings are
unequivocally part of nature, arealm governed exclusively by cause and effect.
Nature is also conceived monistically. Mind and body are equally basic and
fundamental attributes or aspects ofofthe
the one substance. This 'dual aspect theory'
of
ofmind
mind and body is referred to by Deleuze as a form of'parallelism'.
of 'parallelism'. The Iheory
theory

" 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:

from the use of the word Free-WiIl,

Free-Will, no Liberty can be inferred of the will,
desire, or inclination, but the Liberty of the man; which consisteth in this,
that he find no stop in doing what he has the will, desire, or inclination 10
doe."

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:

Everything, in so far as it is in itself, endeavours to pcrsist

persist in its own being ...
.
Thc
The endeavour, wherewith everything endeavours
cndeavours to persist in its own being,
is nothing else but the actual essence ofthe
of the thing in question. 37J7

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

This conatus, the endeavour of

ofevery
every individual'to
individual 'to persist in its own being', is the
basic 'unit of force' in Spinoza's ethics. As for Spinoza there is no creator
independent of existence - God is simply nature under another attribute - he
rejeets any idea ofhuman essence as implying some purpose oflife common to all
rejects
eomparison ofSpinoza with Aristotle is enlightening
human beings. Hampshire's comparison
on this point. Like Aristotle, Spinoza values a thing in terms of the degree to
which it realizes its nature or essenee.
whieh essence. For Aristotle, however, this essence is
common to all the individuals of a particular kind. Spinoza, on the other hand,

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."

The difference is very significant. Aristotle's account ofhuman

of human essence serves to
distinguish human beings from other speeiesspecies (and is explieitly
explicitly humanist in this
sense): it is in the exereise
exercise of
ofthat
that capaeity
capacity namely rationality, that the summ um
bonum for human beings consists. Rationality in this disembodied sense leads
conception of the self at the heart of the tyrannieal
swiftly to the reified eonception tyrannical
degeneration ofpositive freedom described by Berlin. The good life is essentially
the same for all aH human beings. However, no such sueh universal standard of 01'
behaviour eancan be derived from Spinoza's definition of individual essenee.
essence. This
much he has in common with Hobbes. For both ofthem the individual is no more
mueh
and no less than 'its power of self-maintenanee in relation to other things'
ofself-maintenance things'.39
39

Where Spinoza clearly differs from Hobbes is in the role which

whieh rationalily
ratiollality plays
self-maintcnance of the individual. Although Spinoza does not see the
in the self-maintenanee
exercise of rationality as the goal ofhuman
exereise of human life, he differs from Hobbes in seeing
mealls of aehieving
rationality as an essential means achieving the good Iife. Rationality is not just
useful instrumentally as a way ofbetter
of better ensuring the satisfaction
satisfaetion of our impulses
and inclinations. Rather it is essential for the full fuH development of 01' our
individuality or, in other words, essential for our positive freedom. 40 The eentral
central
arguments of the Ethics explore this relationship between rationality and
which, as we have seen, is also central to Hegel's
individuality whieh, Hegers aeeount
account ofpositive
of positive
freedom. 41 Spinoza's overriding intention is to identify the thc means
mcans whereby
individuals more effectively 'persist in their own being'. Although all an our actions
are causally determined, Spinoza wishes to distinguish between different ways in
which our decisions may be caused. In partieular
particular he distinguishes between mental
decisions of the will, emotions and inclinations)
events and states (including deeisions
whose causes are 'internat'
'interna!' and those whose causes are 'external' to [0 the
c1assed as 'actions' or afrections
individual. The former are classed affections in regard to which we
are active and the latter as 'passions' or occasions where we are passive in relation
to our affections. This distinction is the basis for his account ofpositive freedom.

" Stuart Hampshire,

Harnpshire, 'Spinoza and the idea of freedom'
freedorn' in P. F. Strawson (ed.). Studie.< in {he
the
Thou!{ht and Action (Oxford, Oxford Univcrsity Press. 1968), pp. 55-6.
o{ThouKht
Philosophy or
"59 Harnpshire,
Hampshire. 'Spinoza and the idea of freedom·.
freedorn·. p. 56.
40 It is at least arguable whether regarding individualit)"
individuality as what we are essentially can be
condemned as a form of essentialism. Individuality can be understood as an essence which denies
terms. for human beings 'existence
essence, individuality as the potential for difference. In Sartre's terms,
comes before essence'. See Jean-Paul Sartre, F:xi.'lentialism Humunism (New York. Haskell.
Exislentialism and Humanism
1977). On Hobbes, see also footnole
footnote 35 above.
" See above,
a bove, Seetion
Section II.
376 Spinoza and Law

Debate 293

We are active or free wben

when tbe
the causes of our actions are internal and unfree when
wben
these causes are external to uso
However 'internality'
'internaIity' might seem at first sight
sigbt to bear
be ar no obvious resemblance
to a criterion ofpositive freedom. An individual could, presumably, be enslaved
by his or her inner drives or passions but even those emotions or affections which
do not obviously co me 'from outside' the individual, which apparently arise quite
spontaneously within us, may be external in Spinoza's sense. This is because the
criterion of internality is at the same time a criterion of rationality. Stuart
Hampshire's restatement of ofthe
the distinction between active and passive emotions
is succinct and worth quoting at some length:

I experience an active emotion, if and only if the idea which is the

psychological accompaniment of the 'affection' is logically deducible from
the previous idea constituting my mind; only ifit if it is so deducible, can I be said
to have an adequate idea of the cause of my emotion. If the idea annexed annexcd to
the emotion is not deducible from a previous idea in my mind, it follows that
t:ffect of an external cause.
the emotion or 'affection' must be the ~ffect cause, and that I am
in this sense passive in respect ofit. As the ideas constituting my mi mind
nd are the
psychical equivalents of the modifications
psyehical modifkations of my body, I can only have
adequate knowledge ofthe causes ofthose ofmy 'affections' which are not the
ofthecauses
effects of external causes."
causes. 42

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

42 S. Hampshire, Spino::a (Harmondsworth, Penguin Books, 195\),

1951), pp. 136-7.
43
4J Hampshire, SpinozQ,
Spinoza, p. 137.
'" Spinoza, 'Ethics', p. 249.
44
 Spinoza and Law 377

294 Debate

understanding I free myself from subjection to those influences which are

transient and variable.
As natural beings we can never hope to be free of all passions or to be totally
active beings but we are subject both to 'sad' and to 'joyful' passions. Sad
passions correspond to a diminution in the power of the individual, joyful
passions to an increase of
ofthis
this power. As De1euze
Deleuze puts it:

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:

Law is always the transcendent instance that dctcrmines thcthe opposition of

values (Good-Evil), but knowledge is always the immanent power that
determines the qualitative difference of müdes
modes of existence (good-bad).47

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

Deleuze. Spinoza: Practical Philosophy,

"47 Deleuze, Philosoph}', pp. 23- 5.
"4< Spinoza, 'Ethics', IV18, footnote, p. 201.
 Spinoza and Law 379

296 Debate

is not simply a neeessary

necessary evil, a eonstraint
constraint whieh
which inevitably limits the negative
freedom of individuals. Understanding is impossible without language and
culture, without the insights of a moral tradition, even if
eulture, that tradition eannot
ifthat cannot be
taken as the source ofa list ofmoral rules whieh
which the individual has only to obey in
order to be virtuous.

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:

The question at issue is whether this package of inter10cking

interlocking concepts originated quintessentially, and more
or less exclusively, as I argue, in a wholly secular impulse, that is the tendency to monistic and 'atheistic'
anti-magical
anti-magica1 naturalistic systems [ ... ] of which Spinoza's phi10sophy
philosophy was the fullest and most deve10ped
developed
example 66
examp1e.

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,

5S J. Israel, 'Meyer, Koerbagh and the Radical EnlighteIlIuent

Enlighlenmem Critique 01' 01' Socinianism', Geschiedenis van de Wijsbegeerte
Wl)shegeerte
in Nederland: Documentatieblad van de Werkgroep Sassen, 14 14 (2003), 197-208
197-208 (197), my emphasis; cf. Israel, Radical
Enlightenment, 265-74. That this is Israel's considered view is confirmed by his new book Enlightenment
Enlightell1nent Contested (Oxford;
(Oxford:
Clarendon, 2006).
6 Israel, 'Radical Enlightenment
"Israel, Enlightenmem Critique', 197.
7'Israel, Enlightenment, 23-58.
Israel, Radical Enfightenment,
Enlightell1nent, 242-6.
S Israel, Radical Enlightenment,
Israel, Radical EnliRhtennzent,
9'Israel, Enli/ihtenment, 9-12.
[() Of course this list is not exhaustive; the Universal Declaration ofHuman
10 of" Human Rights of the UNO (1948) demands legal protection
proteetion
fm al
for almost rights; www.un.mg/rights/50/uecla.htm.
most thirty human right.\'; w\vw.un.org/rights/50/deda.htm. The right,
rights meant hy Israel can he c1assified
c1assitleu as liherty rights,
equality rights and (for a small part) political rights; cf. J. Nickel, 'Human Rights' in The Stan/örd
Stanjiml Encyclopaedia of"Philosoph)'
o{Philosoph)"
(FalI2006
(Fall Edition), edited by E. N. Zalta, http://plato.stanford.edularchives/falI2006/emries/rights-human!
2006 Edition). http;llplato.stanford.edu/archives/fa1l2006/entries/rights-humanl
 Spinoza and Law 383

SPlNOZA ON NATURAL RTGRTS

SPINOZA RJGHTS 259

but that nobody is by naturc

nature subjcct
subjeet to anothcr
another or that all should havc cqual opportunitics;
have equal opportunities; but if pcoplc
peoplc
are equal, they also have a universal right to be free; that is, their freedom should be limited only for tor
the sake of the freedom and security
seeurity of others (which is what positive laws are about),about). Toleration and
democracy are, in our view at least (it was never that obvious in the seventeenth century),
demoeracy eentury), entailed by
equalily and freedom;
equality rreedom; indeed, ilit could be argued that
lhal what connects the
whalconnecls entire set
lhe enlire is lhe
setis the notion ofequalily,
orequality.
Israel's argument, which for that matter remains by and large implicit, seems to be that to claim or
critieal of (philosophical, theological, eeclesiastical
assert those rights it is enough to be critical ecclesiastical and political)
authority. In other words, he endorses the typical view of the Enlightenment itself (for example, of the
authors of the American Declaration 0/ of Independence) that natural rights are self-evident - that all it
takes to acknowledge them is to abandon old prejudices. ll However, he also endorses the way some
philosophers of the Enlightenment - and certainly the overwhelming majority of those who were
opposed to any form of Enlightenment - interpreted the relation between science and religion, namely,
that sooner or later science leads to atheism (monism, naturalism); and that moderate Enlightenment,
which contested this relation, is a dead alley.
I have no problem admitting that, far from being a monolithic block, the Enlightenment was marked
by conflicting tendencies; nor that, positively or negatively (albeit, as far as I am concerned, negatively
rather than positively)
positi vely) Spinozism was an important factor in the Enlightenment. 12 Nor am I concerned
importantt'actor
with Israel'
Israel'ss overall interpretation of Spinoza as a naturalist philosopher - even though I am quite a
bit lcss confidcnt about thc unity and cohcrcncc of Spinoza's systcm. 13 My only conccrn is with thc
relation between 'naturalism' ('atheism') or, even furtherback,
further back, 'scientific' or 'critical' thinking on one
hand, and 'natural rights' on the olher.
'nalural righlS' other. The idea lhal
that on ce we decide to
once 'think for
lo 'lhink ror ourselves' we also
aftirm
affirm natural rights or, inversely, that to affirm
aftirm natural rights we should ha have
ve a monist or naturalist
philosophy is philosophically and historically naive. Natural rights are not innate ideas but must be
constructed. They were first constructed (on the model of the notion of property) in late medieval
theology and philosophy, the theory being further developed by Spanish Scholastics of the sixteenth
and seventeenth centuries - a context which is anything but atheist or naturalist. 14 They were reformu-
lated, partlyon theological foundations, by Grotius (1583-1645), and developed into a full and
comprehensive theory by Locke, whose theory in turn inspired the Declaration o/Independence of lndependence
(1776) and the Diiclaration
Dliclaration universelle des draits de l'homme et du citoyen (1787).15 It is in that
context, too, that the revolutionary impact of natural rights became visible; indeed, the idea that certain
rights are natural and that the only justification of the state is to protect and promote them makes it
possible to criticize particular states and call their legitimacy into question. This had a profound and
lasting impact on political philosophy. The question how to consolidate power remains as fascinating
as it was for Machiavelli (1469-1527) but one can hardly claim that it is still of central importance-
in fact, it has bccn
becn rcplaccd
rcplaced by discussions of lcgitimacy
legitimacy and limitcd govcrnmcnt.
govcrnment.
Accordingly, the link assumed by Israel between Spinoza, Radical Enlightenment and Modernity
(not to mention his exclusion of Moderate Enlightenment) raises not merely historie al but eoneeptual
historical conceptual
problems; torfor it would mean either that Spinozism includes a theory of natural rights or that such a

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

A METAPHYSICAL THEORY OF NATURAL RIGHTS

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

16 Cf. Israel, Radical Enlightenment, 259-60.

Israel, Radica!
17 See J. Domenech, L'ethique des Lumieres: Lesjimdements
Lesti>ndements de la monde
morale dans la philosophiefranr.;aise
philosophietian('aise du XVIII'
XVJJJ" siecle (Paris:
1989).
Vlin, 1989).
Vrin,
18 For a slightly different argument see my article 'Liberte, vertu, democratie' in Qu'
lS Qu 'est-ce
est-ce que les lumieres radicales
radieales?? Libertinage,
atheisme.
atheisme, et spinozisme
spillozisme dans le toumant philosophique de I'age I'äge classique, edited by L. Bove.
Bove, T. Dagron and C. Secretan (Paris:
Editions d' Amsterdam, 2(07), 355-72.
19 For the following, see Po!itica!
i'! Treatise [TP], ii, 2-4, IV,
Political Treutise [V, 6-7. Far
For sirni1ar [EIh], prop. 37, schol. 2, H,
similar texts, see Ethics [Ethl, ll, 237-8;
lheohJ!(ical-political x vi, 1-4, lll,
lTIPJ, xvi,
Iheologica!-potitica! treatise lTTPj, [[[, 189-91
[89-91 (wilhoulllle
(withoullhe argumenls
argulllenlS lhaljusLify
lhaljuslify lIris
lhis docLIine
doelrine inllle
in IhePolitica/l'rellti.l'e).
Potiticu! Treatise).
Page references are to the standard edition of C. Gebhardt, 4 vols (Heidelberg: Winter, 1925). For the text of Theologico-political
[TIP] I have used the edition ofF. Akkerman (Paris: PUF, 1999); ofthe FoUtical
treatise [TTP] Political Treatise [TP] that by O. Proietti (Paris:
Presses Universitaire de France, 2005); of the Short Japadre, 1986). Translations are
Sho!'t Treatise [KV] that by F. Mignini (L' Aquila: Japadre.
l;Ienerally
~~nerally my own.0\'10.. .
_oTP ii, 4,
TP 11, 4. IV, 6,
6; cf. TTP xvi.
XVI, 2, lll,
TTT. 189-90.
 Spinoza and Law 385

SPINOZA ON NATURAL RIGHTS

RTGHTS 261

necessary item 01'

world but not necessarily realized either), but a neeessary of the actual world, ~ossibility, like
contingency, being a purely subjective category, produced by inadequate knowledge.~l
eontingeney, knowledge. 1 Furthermore,
Furthennore,
adequately to conceive a particular thing we should have an idea of 01' the way that thing is embedded in
the actual world, that is, of01' its actual necessity, so the idea of a possible thing changes into the idea of
a necessary lhing accordingly as it
Lhing aceordingly il grows more adequale. 22 On lhe basis 01' of Spinoza's own philosophy,
therefore, it simply is not tme that the adequate idea of a finite thing does not involve any existential
claims - indeed, a perfectly adequate idea entails the existence of its object. 23 We must assume that
Spinoza uses the expression adequate in a loose and unspecificunspeci1'ie sense; and also that he is referring to
ideas, not of particular
partieular things, but of classes of things; that is, to general ideas and universals - a type
of idea which neither in the Treatise on the Improvement of the Intelleet Intellect nor in the Ethies
Ethics he is ever
prepared to eall
call 'adequate'. 24
With thosc
those rcstrictions
rcstrietions in placc
place it is not hard to eonccde
concede that Spinoza's claim makcs
makes sensc. In fact,
ever since
sinee Plato it has been the standard argument on the relation between an essence essenee (a universal that
can
ean be expressed in a definition) and an existing thing (its instantiation in the world of time and
space). Thus, we can form fonn the idea of, say, the dodo, without making any claims with respect to the
existence non-existence of dodos. Although as a matter of fact the dodo beeame extinet
existenee or non-existenee extinct in the
century, the idea 01'
seventeenth eentury, of the dodo as such will never
ne ver allow us to deduce the creature's non-
existence,
existenee, whieh changes in its habitat (knowledge of which
which followed from ehanges whieh is logically
logieally independent
of thc idca
idea of the
thc dodo). In itsclf Spinoza's argumcnt
argument is unspccific
unspecific and uncontrovcrsial.
uncontroversial. 1I eall
call it thc
the
eonditionality
conditionality claim, meaning simply that the existenceexistenee of all finite things is eonditional;
conditional; that for a
finite thing to be realized, eertain eonditions
conditions must be fulfilled which it is not in the power of that thing
to achieve
aehieve - all of which,
whieh, apparently, Spinoza wants to be understood by anyone referring to natural
right.
Spinoza'
Spinoza'ss seeond,
second, and at first sight equally unspecifie,
unspecific, argument is that for their existence and
essence
essenee all things depend on God. Again, almost any seventeenth-eenturyseventeenth-century philosopher could
endorse that claim. Most held that God freely created ereated the world on the basis of a plan or model
freely eoneeived
conceived in the Divine mind - so there could eould have been a different world; indeed, there
could According to Spinoza, however, nature is not ereated
eould have been no world at all. Aecording created by God but
is God himself, so nature exists necessarily
neeessarily and necessarily
neeessarily exists the way it does, given the fact faet
that God cxists ncecssarily
neccssarily and ncccssarily cxists
exists thc way hc he docs.
does. Aceordingly,
Accordingly, thcthe only thing
Spinoza can ean actually
aetually mean by claiming
elaiming that all things depend on God is that the essence
essenee as weil as
the existence of eacheaeh partieular thing is necessary
neeessary because
beeause they are entailed by Nature as a whole,
which in turn necessarily exists the way it does because beeause it is God. 25 In other words the essenee
essence as
weIl as the existenee of finite things presupposes Nature as a whole, so for every aspeet
weil aspect of their
being finite conditioned by nature, that is, by the totality 01'
tlnite things or modi are eonditioned of all other tlnite things
or modi. The implications tür natural right beeome become visible only if we realize that this applies to
human bcings,
beings, for thcn
then it mcans
means that man has no privilcgcd status; that likc like any othcr
other thing or
being he depends on the rest of nature; in a word, that he is not 'a state within astate' .26 For that
reason I call Lhe equality claim, meaning lhal
eall lhis lhe Lhal man is subjecl
subjeeL 10
Lo lhe same nalural laws as olher
beings.
Spinoza's third claim is that the fact that God's (nature's) power is absolutely free entails that the
power of all finite things is free - and by implication that one is aetuallyactually free to use the powers one
is given by nature in the way one chooses.
ehooses. To explain natural right he applies to the relation between
God and things, not the model of substanee and properties (modi), which whieh is usually attributed to

21 Eth i, prop. 29, 11,70; prop. 33 (with .,,,holium 1), 11,73-4.

scholium 1),11,73-4.
22 Cf. Eth i, prop. 11, dem. 2, 11,ll, 52-3. The idea of something impossible is itself impossible, because, by definition, the impossible
cannol be lhoughl;
eannol lhouglll; Elh ii, prop. 33, dem, 11, 116. Still, iL
deIll.,ll, il is possible 1O
10 imagine somellling
somelliing which, as soon as we lry and eoneeive
conceive
it, turns out to be ineonceivable
inconceivable and therefore impossible (the idea of a God-Iawgiver, for example).
23 Tractatus de Intellectus
lntellectus Emendatione [TlE], §55, 11, ll, 20; §69, 11,
ll, 26.
24TlE §74-75, 11, ll, 28. Universals are entia rationis, Elh ii,
rationis. not ideas; Eth ii. prop. 40, scholl,
scholl,ll, 120-1.
11,120-1.
25 Elh i, prop. 25, H,
25Elll 11, 67; er.
cL prop. 17, schol.,
sehol., H, 63; CM i, 2, I, 238.
11,63;
iii, praef., 11.
26 Eth iii. ll, 137.
386 Spinoza and Law

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:

1. With the possible exception (which for

exeeption of animal rights (whieh tor that matter seem to be an elliptic
elliptie
expression of human obligations) we reserve normative language (rights, duties) for human
actions. We do not speak of a stone' s duty to fall, nor of the gunpowder' ss
beings and human aetions.
right to explode. But if right is natural power, there is no reason why we should not (equality
claim).
2. legitimacy presuppose the possibility of an alternative. For an aet
Right and legitimaey act to be legiti-
mate an illegitimate alternative should at least be eoneeivable;
conceivable; for a right to be a legitimate
tfeedom it must be possible for powers or freedoms to be illegitimate; but if
power or freedom
everything is legitimate the notion 01' right is no longer meaningful
meaningrul (universal legitimacy
claim).
3. Rights ean
can be violated; that is, their exercise ean
can be limited or impeded in an unjust way
(which is also why we feel rights must be proteeted).
(whieh protected). However, on Spinoza's analysis they
no longer ean, which they are violated being as legitimate as themselves. That
can, the powers by whieh
means that there is only a pragmatic
pragmatie way to judge the outeome 01' a eonf1iet
outcome of 01' powers (and/
contlict of
which turns out to be the strongest or the most effective
or rights): that one will be legitimate whieh effeetive
(universallegitimacy claim)

Spinoza'ss redefinition of natural right in terms of natural

perfectly clear on the other hand that Spinoza'
It is perfeetly
(instead of legitimate) power is eonsistent
consistent with the general tendency fact, Spinoza
tendeney of his thought - in faet,
deduce an ought from an iso Again, legitimaey
simply refuses to deduee legitimacy and right presuppose the existence
existenee of
case of a natural right should be provided somehow by the order of nature - and
a norm, which in the ease
Spinoza ean aeeommodate neither the notion of norm, nor that of natural order. 3D
can accommodate According to hirn,
30 Aecording
enjoy all thc pcrfcetion
God is not a lawgiver, so things cnjoy perfeetion thcy
they ean
can or must cnjoy.31 Thc
The world on thc
other hand is ordered only in the sense that it is subject to uniform and intelligible laws; not in the sense
that over and above those laws there would be an order 01' a different (moral, aesthetic or teleological)
kind. 32 The question therefore
theretore is whether Spinoza ean
can aeknowledge
acknowledge subjeetive
subjective rights at all or in other
reduction of natural rights to natural powers does not make all talk about rights
words whether his reduetion
outside the eontext
context of positive law utterly meaningless.

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

SPINOZA ON NATURAL RIGHTS

RTGHTS 263

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

Nature is not restricted (inlercludilur)

(illlercludilur) by the laws ofhuman
of human reason, whose only aim is the utility and conser-
vati on of men, but by countless other laws,
vation law5, which relate to the eternal order of nature, of which man is but a
small part. 39

Rationality and wisdom are not by any means privileged:

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

33 For the following, see J. Donnelly, The Concept ofHwnan

33For ofHuman Rights (London: Croom Helm, 1985). 1985).
34Elh
"'EIl! iv, der. I, II, 209, elc. Good and evil are nol even entia rationis bul entia imaginationi,\';
deI. 1, imaginationis; Elh
EIl! i, app., II,
II. 78; 81-3
81-3..
Etl! iii, prop. 6, H, 146.
".15 Eth
36Eth iii, prop. 9-10, schol., TI,
'"Eth II, 148.
37TP
37 TP ii, 5.
5, IV.
IV, 7 (my italics).
38 TTP xvi,
38TTP
TTP xvi:
39TTP
39 m:
xvi 3 3, 1II
x vi, 4,
4()TP ii, 5, IV,
40TP IV. 7.
190
IIl, 190.
190~1.
4: III, 190-1.
388 Spinoza and Law

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

SPINOZA ON NATURAL RIGHTS 265

or in any case he must, certainly if we assurne

assume that natural rights are essentially inalienable. 49 If, as
Spinoza claims, natural right is nothing but natural power, a specific natural right can be inalienable
only if it is a power
powcr such that it eannot
cannot be destroyed or interfered with. Therefore, an individual A
would have an inalienable
inalienahle right R if and only if R can be
he neither destroyed nor interfered with, that is,
if and only if there is no B having the power to prevent A from actually using (claiming, exercising,
realizing) R. However, if we ass urne that A is finite, so A's powers are finite as weH,
assurne weIl, there is proba-
bly always aB (if not a collection of Bs) powerful enough to stop A from exercising R (if only by
killing A). Accordingly, no finite A has any inalienable right R. So, again, Spinoza's re definition of
natural right as natural power makes it impossible to actually acknowledge natural rights (whereas
we speak of rights and want them to be protected just because they can be interfered with and
because their bearers are vulnerable).
Nonetheless, Spinoza seems to acknowledge at least one specific and individual right:

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

49 'preamble' of the UNO Declaration

See the 'prearnble' Declaratiofl o}' recagnition [ ... 1
o{ Human Rights, which stipulates that 'the recognition ] af
of the equal and
inalienable rights of all members of the human family is the foundation of freedom, justice
justice and peace in the world' (my italics).
italies),
5()TTPxvii.
5()TTPxvii, I,!TL (myitalics).
I, III, 201 (my italics). .
13, !T,
51 Eth ii, prop. 13, II, 96.
96,
52Eth ii, 14-17, H, 102-6.
ii. prop. 14-17.][.
51TP ii,
5lTP ii. 11, IV, 10.
390 Spinoza and Law

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

THESTATUSAPPROACH

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

54 TP ii, 10, IV, 10.

54TP
55TTP
55 TTP xvii, 2, 111,
lll, 202. The
111e passions that sovereigns rely on are hope and fear; cf. Eth iv, prop. 47 (with scholium),
sclwliurn), 11,
H, 245-6;
prop. 54.
54, schol.,
schol.. 11.
H, 250.
)6 See L. Wenar, 'Rights', The
,6 7he Stanfimi
Stanfimf F.ncyclopaedia Hdition). edited by E.
Encvcloplledia of' Philosophy (Winter 2005 Edition), F" N. Zalta (http://
could be to deduee
plato.stanford.edu/archives/win2005/entries/rights/). An alternative route eould deduce all natural rights from
frorn the natural
equality of men but it was al ready established that that way is not open to Spinoza; indeed, according
ofrnen aceording to hirn there is no equality.
57 Sec the UNO Declaration: 'All human beings are born free and cqual equal in dignity and rights. They
Thcy are endowed
cndowcd with rcason
reason and
conseience
conscience and should act aet towards one another in a spirit of brotherhood' (art. I).
 Spinoza and Law 391

SPINOZA ON NATURAL RTGHTS

RIOHTS 267
267

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,

given the fact that the

Ihe besl o{ ourselves is the intellect, it is certain that, if we really wish to pursue what
best pari of
is useful, we must try above all to perfect it as much as we can; for far in its perfection must reside our highest
good. 64

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

5)) Grotius, De iure belli, prol.,

:'Orotius, pro!.. §7, 5, Tuck Rights (~fW(lr and Peace, 1,
o{War mul I, 82-3.
Cf.
)9Cf.
59 R. J. Tuck, Natural Ril{hts
Rights Theorie.I·:
Theories: Their Oril{in al1d Development (Cambridge: Cambridge University Press, 1979);
Grigin and
K. Haakonssen, Natural Law and Moral Philosophy: From Grotius Gmtius to the Scottish Enlightenment (Cambridge:
(Carnbridge: Cambridge
University Press, 1996); T. J. Hochstrasser, Natural Law Theories Theorie,l' in the Earlv Enlightenrnent (Cambridge: Cambridge
Early Enlil{htenment
UniversiLy
Uniyersily Press, 2000).
2000),
ein J. Locke, Sec(JIld
60]. Second Tre{ftise (~tG()vernment ii, 6, in lohn Locke. T.,,1/0
Treatise (~tGovernment T"vo Treatises (~tGovernmellt, edited by P. Laslett (Cambridge:
Tre(jtises qfGovernment,
Call1bridge
Cambridge University Press, 1967),289.
1967),289,
öl 'A Law of Nature (lex natl/ralis)
61 naturalis) is a Precept, or generaJl
general! Rule, found out by Reason', Leviathan xiv, 3; they are 'dictates of
reason,'
reasoll,' improperly called laws because 'they are but Conclusions,
Conclusions. or Theorems concerning what conduceth to the conservation
alld deIence oI
and derenee oi' lhemselves'
Ihemselves' (Leviathan, xv, 41). For reIerences
41), Far rererenees lO
10 Leviathan I haye
have adopled lhe
Ihe paragraph numbering oI oi' Edwin
Curley (Tndianapolis:
(Indianapolis: Hackelt,
Hacken, 1994).
1994), Quotations refer to the Oxford edition (Oxford: Clarendon, 1909). 1909).
62 L Kant, Me/aphysik
621. Sitten ('Tugendlehre') §38
Metaphvsik der Sillen ~38 in lmmafluel Kant: Werke in sechs Bänden, edited by W.
Jmmanuel Kan/: W, WeischedeI,
Weisehedei, 6 vols
(Wiesbaden: Insel, 1956-62), vo1. voL 4, 600--1.
600-1.
6] L Kant, Grundlegung zur Metaphysik der Sitten,
631. Sitten. 2. Abschn.,
Absehn" Werke, vol. 4, 59. 59,
MTTP
64TTP iv, 4, TII,
III, 59 (my italies).
italics).
65 See also the first dialogue (between intellect, love, reason and cupidity) in KV i, Mignini, 17-19, 17-19.
<06 See Jonathan Benne!'
6<5 Benne!'ss eomments:
comments: 'After three cennlries
centuries of failure to profit from it time has come to admit that this part of the
Ethics has nothing to teach us and is pretty eertainly
certainly worthless' (J.(J, Bennet, Spinoza's Et"ics,
Ethics. 372); 'it is IUbbish
rubbish which causes
others totn write ruhhish' C)lJinoza's Ethic,\', 374). See, however, S. M. Nadler, J.)'pinoza
(Spinoza',v Ethics, Spinoza's
's Heresy: Inzmortalit}' and the .Iewish
Here."y: lmmortality Jewüh Mind
(Oxford: Clarendon, 2004),
2004). Israel uses this part of Spinoza's philosophy whenever it suits his purposes but does not attempt to
Israelllses
make it fit the 'atheist' doctrine he also ascribes to Spinoza.
Spinoza,
392 Spinoza and Law

268 T. VERBEEK

that are beneficial

benetlcial to others - I suppose they do. The only question is whether the injunetioninjunction to eultivate
cultivate
our intellect entails, direetly
OUf intelleet directly or indireetly,
indirectly, the universal duty to respeet
respect human rights.
First, what is eentral
central in all texts eoneerned
concerned with intelleetual
intellectual love is not the notion of reason
(ratio, reeden) but of intelleet
intellect (intellectus, verstand). The primary significance
significanee of the intelleet
intellect
seems to 10 be epistemological.
epislemological. The inlellecL
intelleet has ils
Hs own laws, whichwhieh are nolnot Lhose
those 01'
of the
lhe body,
whereas reason is no more than a sophistieated
sophisticated form of the imagination, and so follows the laws of
the body
body.67
67 Moreover, it is by forming intelleetualintellectual ideas that we aehieve
achieve an intuitive awareness
(cognitio) of what an idea is about that is absolutely eertain. certain. Classie
Classic examples are mathematical
figures, whieh, provided they are eonstrueted
constructed as dynamie entities, give us the intuition, not only of a
particular objeet
partieular object (a eircle,
circle, a tri angle), but of its properties as weil (to be expressed in propositions
trian~le),
triangles).6~ Ultimately, therefore, all eertainty must be grounded in an idea
circles and triangles).6
relating to eircles
of this kind, the most eminent being bcing the idea of God. 69 Reason, on the other hand, is the faeulty faculty of
diseursive thinking, whieh,
which, unless it is supported by some form of intuitive awareness (provided by
the intelleet),
intellect), gives no absolute eertainty.
certainty. General ideas and principles, as weil well as entia rationis like
time and number, help the imagination to eomprehend comprehend and compare many different things at the
same time. Although, therefore, they certainly eertainly help to conjure confusion, they are themselves the
eonjure eonfusion,
source of more eonfusion
confusion beeause
because they are not clear and distinetdistinct - indeed, it is not always realized
that apart from entia rationis such as time and space (which aecording according to Spinoza are not ideas
anyway) the ideas of reason may be lcss less clear and distinct than many a false falsc idea of the imagina-
tion?O Aeeordingly,
Aceordingly, the primary signifieanee
significance of the theory of the intelleet seems to be epistemolog-
ical: instead of laying the foundation tür for a theory of rights, it provides an indubitable framework tür for
philosophy and science.
scienee.
The inlelleel
intelleet is also morally signifieanL
signifieanl. Aecording
Aeeording to Lo Lhe
the Short Treatise, lhethe moral knowledge
provided by reason is ineffectual (has no effeet on behaviour) beeause reason is overruled by what
Spinoza ealls the evil pass ions - something he explains by our being too mueh
passiolls much attaehed to the body.
However, ifwe know God by means ofthe intelleet, we know him hirn intuitively. This enables us to under-
stand that he is infinitely more perfeet than our body and love him instead. By detaehing us from the
body, love of God allows us to overeome the evil passions and live in aeeordanee aceordanee with our moral
intellectuallove of God overeomes acrasia and produces
ideals. In sum, intelleetuallove produees virtue - a doetrine whieh, in
a slightly modified form, is restated in Part V of the Ethics. However, a doctrine of virtue or, more
generally, a moral theory does not neeessarily
necessarily entail a theory of natural rights.
If right is defined as power, intelleetual love undoubtedly yields a speeifie right (in Spinoza's
sense), namely, the power of self-eontrol. However, this right is eoneeded conceded only to those who exer-
eise the power to think, to the point where they ean aetually enjoy full intelleetual and moral au auton-
ton-
(which in turn is aequired
omy (whieh acquired through the intuitive idea of God, whieh which allows us to do the good).
The wise, moreover, for tor whom this is reserved, are few and far between; and although they must
prefer the civil society to the state of nature (if only to protect themsclves against the aggression of
other people and animals 71 71 )) they eould, in prineiple
principle at any rate, retain their eondition
condition of eternal bliss
even among the lhe horrors of01' the
Lhe state
slate of
01' nature.
nalure. In so 1'ar
far as love of01' God is peeuliar to
10 man Spinoza

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

SPINOZA ON NATURAL RIGHTS 269

seems to consider it politically irrelevant. 72 In fact, if Spinoza's justit1cation

justification of human rights were to
depend on this ideal of wisdom, that would make his position even more peculiar (from a modern modem
point 01'
of view) than that 01'of liberal Christi
Christians
ans such as Grotius and Locke. In any case, I find littlelittIe
mention of the theory of intellectual love in 'radieal'
'radica\' Spinozists of the eighteenth century, so if these
have a theory 01' natural rights at all (whieh
(which I doubt ror that maller)
matter) ils
its 1'oundation
roundation cannot be the same
as Spinoza's.73
Spinoza's,73

THE CONSEQUENTIALIST APPROACH: NATURAL RIGHTS AND STATE RIGHTS

There can be little

Iittle doubt that, as far as ordinary morality is concerned,
concemed, there is a strong, even though
rarcly acknowlcdgcd, utilitarian strain in Spinoza's moral thought. 74 Crudcly summarizcd, thc argu-
ment is that, given the fact that we are naturally inclined to increase our power, the best way to
achieve this is to live in harmony with our fellow men - indeed, in its basic form it amounts to the
claim that if people work together (eoneordia) they deploy more power than if all work for tor them-
selves and against each other,75 Whether in this way Spinoza manages to eonstruet
eaeh otherJ5 construct a valid moral
theory remains to be seen. I assume that it is exposed to the same critieism
criticism as all utilitarian theories?6
partieularly, I fail to see how Spinoza's peculiar
More particularly, peeuliar version of utilitarianism could yield an obliga-
tion (or if onc prcfcrs a universal adviee) to cxtcnd bcncvolcncc
bcncvolcnec to alt all mcn, givcn thc fact that to
combine a maximum of power with a minimum of effort, it may be enough to live in harmony hannony with
one's immediate environment, especially
espeeially if this consists
eonsists of a small but exquisite band of robbers?7
Again, moral duties do not entail natural rights anyway, so aseparate discussion
diseussion of the possibility of
construeting a consequentialist
constructing utilitarian theory 01' rights on the basis 01' Spinoza's premises
eonsequentialist or utililarian
remains indicated.
A utilitarian theory of natural rights would have to show that the consequences of respecting
human rights are useful (in the broadest sense). However, the utility of a right is almost by definition
limited to the individual protected by it - for all others it amounts to a limitation of their own freedom
(they must adjust their goals and means to the rights of 01' others). Therefore, the only possible way to
justify natural rights on a consequentialist basis would be to see individual rights as rules of eonduet,
whieh arc useful only on the
which thc understanding
undcrstanding that they
thcy are kept universally
univcrsally - it must be possiblc to
show that it is useful for us to respeet rights universally even if in individual eases it may be more
useful for us to ignore them. In brief, to accommodate
aeeommodate natural rights one must, I presume, make the
switch from aet utilitarianism to rule utilitarianism: not the individual act following from a respect
for natural rights must be useful, but the fact that we have the rule universally to respeet
respect a number of
fundamental freedoms.
This could weil
weIl be the approach adopted by contract theorists such as Hobbes. Hobbes starts by
dcfining natural right in a way very close to Spinoza, namcly, as liberty:

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 most important 01'

of these are the first and the second:
seeond:

[I]t is a precept, or generall rule of Reason, Thai

Tha/ every man oURh/
oughl 10
/0 endeavour Peace, as
as(arre
./iHre as he has
hope ()fof obtaining it; and when he cannot obtain it, that he may seek, and use, all helps and advantages
of Warre. The first branch of which Rule, containeth the first, and Fundamentall Law of Nature; which is,
to seek Peace,
Peaee, alld follow it. The second, the summe of the Right of Nature; which is, By all means we
andfollow
ean,
can, 10 defend our selves. From this Fundamentall Law of Nature, by which men are commanded to
to defelld
endeavour Peace, is derived this second Law; ThaI Thai a man be willing, when others
olhers are so 100,
too, as farre-
forth a"
fi>rth as Flr
for Peace, and
anel defence of himselfe,
hirnselfe, he "hall
shall think it necessary, to lay down this right to all
Ihings; and be con/enled wi/h so much liberly
IhinRs; fiber/y aRa;nsl
aga ins/ olher
o/her men as he would allow
al/mv olher mell
men aRa;ns/
againsl
himse(fe. 80
himselfe.

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

78 Leviothan xiv, 1-2.

]X LeviatlUln
Leviathan 3.
79 Leviathan, ~
80 Leviathan, 4~5.
Leviathan: 4-5.
Leviathan 9-11'
XI Leviathan,
81 9-13; 31-3.11-3
Leviatlullz' xv
82 Leviathan }---':i. .
xv, 1-2
"TP i, 6,6,IV,
IV, 5: 5; cf. r-hccolo
Niccolii Machiavelli, Disco/"si
Discorsi i, 5.
X4 'A state of nature mllst
M must not be confllsed
confused with astate religion; we must conceive it as being without
a stute of religion: "vithout religion and without law
and consequently without sin and without wrong' wrang' (TTP
(TIP xvi, 19, 1lI,
lll, 198; cf. Leviathan xiv, 31-3).
 Spinoza and Law 395

SPINOZA ON NATURAL RIGHTS

RTGHTS 271
271

promises only as long as they believe (rightly or wrongly) that it is in their 85

thcir interest to keep them. 85
Aecordingly,
Aeeordingly, even though soeiety
society could be the result of a contract, this is at best an exception and in
no case provides a justification, because a contract as such can never be a source of obligations. 8686 The
only conceivable reason why people obey the sovereign (and thereby maintain a civil society) is that
il is not in their advantage to disobey - either
they believe that it eilher because they understand that any
commonwealth is better than the state of nature (which is the philosopher's position87 )) or because they
are afraid ofbeing punished by the sovereign (which is why most people obey). As a rule, a civil soci-
ety is created and maintained by force and authority. In Spinoza's own view that is his main difference
with Hobbes:

In political matters the difference between Robbes

Hobbes and me is that I stick with natural right throughout and
believe that the Magistrate of a town has only as much fight
right over his citizens as his power exceeds their
power - as we find
±lnd everywhere else in nature 88

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

absolute - it is always limited, and as a result, mitigated, by the right,

light, that is, the power, of the
93
people. 93
Spinoza' s thcory amounts to a qualificd cndorscmcnt of thc thcory of sovcrcignty. This thcory had
been developed in reaction to the Reformation, which turned religion into a source of revolution and
Gemmny, the Netherlands, England). What was needed in the eyes of Jean Bodin
civil war (France, Germany,
(1530-1596) and Hobbes (to eite cite only the best-known defenders of sovereignty) was a sovereign
with absolute power, enough at any rate to impose a settlement and maintain peace, without having
his authority limited or undermined by the Church, the Judieiary, or the Army?4Army.94 In a general way
there is no reason to assurne that that theory was not supported by Spinoza as well;weil; in fact he explic-
itly cndorscs two of its main points, namcly, that thcthe sovereign
sovcreign alonc is cntitled
entitlcd to fix thc norms of
good and evil and that there can be no division of power. 95 95 However, as a careful reader of Machia-
velli Spinoza must also have realized that power alone can never be enough; that to keep his power
the ruler has to reckon with soeial and religious, historical and psychological, realities; and that the
only way to10 cope with 1hese
these is to
10 use 1hem
them to
10 consolidate
consolida1e his power. Accordingly, Spinoza concludes
that to a certain extent the sovereign is dependent on his subjects - if for whatever reason these
decide to ignore his power and autholity
authority (for example, because they believe that higher interests are
at stake: their freedom, their religion), he is powerless. Hence Spinoza's claim that sovereign light,
which is by definition power over a multitude, is essentially finite, and that even under the most
powerful tyrant the people keep their light, that is, their power, to overthrow hirn - which, if the
tyrant understands that mechanism, will induce hirn to grant the people those lights which he cannot
control anyway.
contral
It must be emphasized that the point remains highly abstract, given the fact that Spinoza concedes
that in practice sovereigns may come very close to enjoying absolute power, no matter how theoretical
this notion must remain:

Even though the idea ofoI a sovereign's

sovereign 's right over everything and of
oI the surrender of
oI the individual's
individual' s right to
thongh practice can be so instituted that it approximates our
the sovereign is in accordance with practice and though OUf
theoretical 96
idea considerably, it must remain in many ways purely theoretical. 96

In any case, given

gi ven the fact that the sovereign's
sovereign' s actual control is always mediated by obedience and
respect, an individual sovereign must deserve these. In the Political Treatise Spinoza presents three
rules
rulcs that should guidc him:

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

SPINOZA ON NATURAL RTGHTS

RJGHTS 273

What is the meaning of these rules?

rulcs? Should they be seen as prudential? Or are they normative and
do they require the ruler to respeet a higher prineiple
principle of
ofjustice?
justice? Again, we should keep in mind, not
only that right is power, but also that according to Spinozajustice is defined by the law: 'Justice is the
enduring readiness to give everyone what is his due according to the civillaw.,98
civillaw. ,98 Instead of being a
eriterion
criterion for the law,
law,justice obedience to the law. In fact, the sovereign eannot
justice is habitual obedienee cannol do any wrong
(injuria), this being limited to private persons. 99 As a result, the sovereign may use all means to
enforce obedienee
obedience as long as they are in his power:

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

Bearing that in mind, let us have a closer look.

To understand the first rule, one must remember that reason is not a source of moral intuitions but
instmment. If Spinoza claims that the state must
an instrument. nlUst be based on, and guided by, reason, this is strictly
meaningless as long as we do not know to what end reason must be used. In the remainder of the
seetion Spinoza insists that the end must be the unity of the state, given the fact that it is in virtue of
its unity that it can deploy power. The rule of reason implies that the sovereign should employ all the
means at his disposal to preserve and promote unity. The two other rules indicate how he should
proceed to prevent this unity from becoming
beeoming a threat.
The second rule draws attention to the fact that the means the sovereign has at his disposal are
severely limited: either he uses hope and fear or he relies on love ofthe
01' the civil society (amor status civi-
lis). Accordingly, if the sovereign wants to impose a rule, he must be certain that it can in fact be
imposed, that is, that the majority will accept it:

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!

Accordingly, there is no tixed

fixed rule, as long as the sovereign actually achieves his aim, whichdefacto
coincides with the preservation of unity and peace (his private aim being the consolidation ofhis of his own
power), even ififthis
this means that religious or other claims of indi
individuals
viduals and minorities must be ignored.
The third rule wams the ruler that unpopular measures will cause the people to conspire together,
'either out of common fear or because they desire to avenge a common hurt (damnum aliquod
commune)' .102 Again, what the sovereign should prevent at all costs is that a minority make political
capital out 01' popular discontent.
diseontenl.
To what exextent
te nt does this allow an account of natural rights? To a limited extent it probably does.
According to Spinoza the sovereign can preserve his power only for as long as the majority continues
to support hirn (which may involve certain concessions of power on his behalf). Moreover, the sover-
eign must take an interest in pleasing minorities, if only to prevent them from mobilizing discontent
and becoming a threat (which mayaiso involve certain concessions). In fact, if ifthere
there is no clear major-
ity, that consideration could induce a sovereign to give all minorities equal rights - and if that policy
is sueeessful,
successful, that is, if it is more apt than other means to achieve
aehicve stability, that obviously is the right

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

Wherever men have cOIumon

common rights and all are guided by one mind as it were, it is certain that each of them
has less right according as the others collectively have more power than he has; in other words, he has no
more right over nature apart from what common fight him. 104
right concedes hirn.!

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

If, like Israel, one defines Modemity

Tf, Modernity as the package of values described at the beginning of ofthis
this paper,
it is undeniably
undeniahly tme that it has its origins in the Enlightenment - so I have no difficulty with that part
ofIsrael' s argument. It is also true but even more
tme that Spinoza exerted a significant influence, positive hut
negative, during lhe
negalive, the Enlightenment 107 -- so I have no difTicully
Enlighlenmenl 107 dilTiculty wilh
with thal
that part 01'
01' Israel's argument
argumenl

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

SPINOZA ON NATURAL RIGHTS 275

275

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

English translators of Spinoza's Traetatus

Tractatus Politieus
Politicus [hereafter: TPl
TP] are weil aware of the difficnlties
diffieulties in
finding an adequate way of rendering the juridicallocution iuris,!1 This erueial
juridieallocution sui iuris. crucial phrase has been translated as
"independent,,,2 and somewhat more literaliy,
literally, if
ifmore
more cumbersomely, as "in control of one's own right,,,3 and
"possessed of one's own right.,,4
righl.,,4 The problems associated wilh Spinoza's nse the lerm sui iuris are not
use of lhe nOl
Iimited to finding a suitable translation. His use of the phrase in the TP gives rise to the following paradox.
limited
one is sui iuris to the extent that one is rational, and to the extent that one is rational,
According to Spinoza, Olle
one will steadfastly obey tbe
the laws of tbe
the state. However and here is tbe the rub to the extent tbat
that one adheres to

'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

240 Steil/berg / History

J.D. Steinbery Histur}' ur Eurupeun Ideus 34 (2008) 239-249
ojEuropeol/ldeas

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.

Spinoza and the republican

repnblican conception of Iiberty
liberty

According to republican conception

eonception of liberty, one eancan only be free when one is a citizen in a free state. In
humanist texts of the renaissance and early-modern periods, this notion of liberty was often associated with
the Roman republic, in which, as Chaim Wirszubski writes, "freedom of the citizen and interna internalI freedom of
lhe State
Slale are in facl only difTerenl
different aspecls
aspects of the
lhe same lhing.'"
thing."s Quentin Skinner, who has done more than lhan
anyone else to resuscitate this model, explicates this view in a similar way, claiming that "any understanding of
what it means for an individual citizen to possess or lose their liberty must be embedded within an account of
what it means for a civil
eivil association to be free.,,6
Whal, lhen, makes a slale free? Minimally, it il musl be independenl from foreign rule. Moreover, il ilmusl
musl be
free from the arbilrary rule of adespot.
lhe arbitrary adespol. As the
lhe seventeenth-cenlury
sevenleenlh-cenlury English republican Marchamont
Marchamonl Nedham
puts it, "the only way to prevent arbitrariness, is, that no laws or dominations whatsoever should be made, but
by the
lhe people's consenl.,,7 Fromlhis
From this characterization,
charaelerization, we can see lhal republican liberly can be underslood as
having both a positive and negative aspect: it is at once a matter of non-domination (negative) ({nd ami consent or
participation (positive). This way of conceiving of liberly, providing as it il does motivation for opposing
despotism as such, is a hallmark of the republican tradition.
Recently, several commentators have suggested that Spinoza's political writings can be fruitfully viewed as
contributions
conlributions lo lhe larger body of republican literalure
to the lileralure s8 II is nOl
nol surprising lhen lhal
thal many of these
lhese same

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

Steinberg !/ History oj'

J.D. Steinbery of Europcul/ Ideas 34 (2008) 239-249
European ldeos 141
241

commentators have espied in Spinoza's account of ofpoliticalliberty

politicalliberty a republican dimension. Raia Prokhovnik,
for instance, baldly states that "the political liberty Iiberty upon which Spinoza focuses characterises the
commonwealth, the public domain, not the political individual. The liberty of subjects in civil society is
guaranleed by lhe
guaranteed slale, by its
the state, iLs being self-governing.,,9
self-governing. ,,9 Spinoza invites
inviLes such a conclusion when he approvingly
refers to Machiavelli-who establishes himself in the Discourses as the arch-republican-as a "well-known
advocate of freedom" (TP 5/7).105(7).10 In order to make a reasonable assessment of Spinoza's attitude towards the
republican conception of freedom, we must look more carefully at his defense of democracies, or republics
more generally.
lt is widely agreed that, other things being equal, Spinoza prefers republics to monarchies. What we want to
consider here
he re is the role of liberias
libertas in his defense of popular governance. Let us start with the earlier political
wor!e, the Tractatus Theoloyico-Politicus
work, Theologico-Politicus [henceforth: TTP]. Spinoza's defense of democracy in the TTP is
multi-pronged. The most prominent and impressive line of defense, and the one that is reprised with even
greater
grealer gusto lhe TP, is lhal
guslo in the that lhe
the inleresls
interests of subjects
subjecls are better
beller served in a democracy, where "there
"lhere is less
danger of foolish decrees" (TTP 16/135). Also, Spinoza argues that democracies are marked by less internal interna I
discord and greater stability than monarchies. To illustrate this, Spinoza draws on the case of Israel, with its
serenity before, and strife after, the establishment of a king (see e.g., TTP 18/195). The greater overall stability
that democracies promise redounds to the welfare of the individual, for whom the "safety and security" of a
stable commonwealth is to be contras ted with what he refers to as the "life
contrasted "Iife of anxiety" (TTP 16/129).
These arguments do not yield the republican implication that participation in government (i.e., citizenship)
itself guarantees liberty; rather, they demonstrate that democratic procedures tend to produce salutary
oulcomes. However, there
outcomes. lhere is one furlher
further argumenl
argument in lhethe TTP lhalthat Spinoza gives on behalf of democracy, in
which he appeals to something like the republican conception of liberty. He maintains that one of the
fundamental features of a democracy is that it "come[s] nearest to preserving the freedom which nature allows
the Unforlunalely, he does not
lhe individual" (TTP 16/137). Unfortunately, nol tell
lell us what
whal is meanl "naluralliberly"; however,
meant by "naturalliberty";
we can get a sense of what he meant by looking at how the locution was used by other political thinkers of his
time. This concept, along with the associated notion of natural equality, was often appealed to by seventeenth-
century republicans to oppose claims of natural hierarchies. For instance, in his criticism of Robert Filmer,
Algernon
Aigernon Sidney maintains that naturalliberty is a common notion, "written in the heart of every man, denied
none."!! Hobbes loo-whose
by none,,11 too-whose inftuence
infiuence on Spinoza
Spinoza's 's poliLical
political works is unmistakable,
unmislakable, if sometimes
somelimes
exaggerated-utilized the notion of natural liberty (meaning power to preserve oneself in accordance with
one's own judgments), but he argued that so long as it is retained, men will remain locked in a bellum omnium
contra omnes.
In lhe
the TTP, Spinoza seems lo to accept
accepl Hobbes's view lhal that natural
naluralliberly
liberty is something
somelhing like aulhorily
authoriLy over
one's own actions. However, against Hobbes, he promotes the republican thesis that in a democracy one
sacrifking pe
always retains this authority, without sacrificing peace
ace and security. He writes, "in a society where sovereignty
is vested in all, and laws are made by common consent, obedience has no place, and the people remains equally
free whether the number of laws is increased or diminished, because iL
whelher lhe il acls
acts by its
iLs own decision and not
nol by the
lhe
authority of another" (TTP 5/95). One could scarcely find a clearer dearer expression of the republican ideal of
liberty in Cicero, Machiavelli, or Harrington. Elsewhere in the TTP, he articulates the position of ofthe
the citizen in
a democracy in a somewhat milder, though no less republican, manner: "in [a democracy] no one transfers his
natural right to another so completely that he is never consulted again, but each transfers it to a majority of
the
lhe whole conll11unily
commLll1ity of which he is a member. In lhis this way all remain equal, as they lhey were before in the
lhe

(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

242 Steil/berg / History

J.D. Steinbery Histur}' ur Eurupeun Ideus 34 (2008) 239-249
ojEuropeol/ldeas

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.

Being sui iuris:

iu";s: a paradox and a solution

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

Steinberg !/ History oj'

J.D. Steinbery of Europcul/ Ideas 34 (2008) 239-249
European ldeos 143
243

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).

17 lure Praedae (Oxford: Clarcndon Press, 1950), 18.

De Jure
18Natural Rights Theories: Their Origin
lRJ\ratural Origill and Developmcnt (New York: Cambridge
(md Development University Press, 1979),
Cmnbridge Cniversity 60.
1979),60.
l'JS Annabe] Brett's claim that de Soto thought of "dominium in seipsurn
19S ee Annabel seipsum or liberty"
Iiberty" as one sense of right (Liberty, Right and Nature:
individual Riqhts in Lurer
llUiit;idual Thoughl (Cambridge: Cambridge "C"niversity
Later Scholastic Thouq/u ViLZquez adopts the Roman 1(l\Y
University Press, 1997), 166), while Vazquez law
definition
dcfinition of liberty (from FlorenLinus-Diqest
oflibcrty Florcntinus-Digest 1.5.4) Lo
to dchnc
define dominia.
dominicl. ViLZquez's
Vazqucz's aceount
accounL of the rclationship
ofthc bctween liberty
rciaLionship bctv'iccn libcrty and dominia
domillia
is, however, some\vhat
somewhat more complicated (Liberty,
(Libcrty, Right ami /I/ature, chapter 5).
and lV'ature.
20 Liherly,
2U Liherfy, Righl and Nall/re,
Na/ure, 195.
406 Spinoza and Law

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

21 Barbonc and Ricc suggcsL

21 that wc understand "potestas" as "permission, auLhorizaLion,
suggcst thaL authorization, or privilcgc thatLhaL is confcrrcd upon the
tbc
individual. Potestas
Pofesfas represents apower that is not essential to the individual, but a capacity that is super-added"
super-added"' ("Introduction,"
("lntroduction.·' Benedict
Bel1edict
Spinoza. PoUtical
Spinoza, Treatise, trans. Samuel Shirley (Tndianapolis: Hackett, 2000),17). Hans BIom
PoliticaJ Treatise. Blom recommends rendering potestas as
"coercive power" ("The
C'The Moral andaod Political Philosophy of Spinoza," The Renaissance amI
ami Seventeenth
Sevenleenth Cenlury Ralionalism, ed. G.H.R.
Century Rationalism,
Parkinson (London and New York: Routledge,
Roullcdge, 1993),
1993),341).
341).
22 This is Hobbes's point \vheu
\vhen writes thai
that the sovereign is empmvered "con-forme" this wills
empowered to "con-forme" \\'ills of subjects,
subjects. even though the wills
themselves remain the wills of subjects (Leäathan,
(Leviathan, ed. Richard Tuck (Cambridge: Cambridge L'niversity
University Press.
Press, 1996), 120-1).
 Spinoza and Law 407

J.D. Steinberg or Europeon Ideos 34 (2008) 239-249

Steil/berg / History ofEul'Opeon 245

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

246 Steil/berg / History

J.D. Steinbery Histur}' ur Eurupeun Ideus 34 (2008) 239-249
ojEuropeol/ldeas

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

Steinberg /! History oj'

J.D. Steinbery o{European ldeos 34 (2008) 239-249
EUl'Opeon Ideas 247

reason will be the most powerfnl

powerful [maxime poten~l
potens] and most fully sui iuris" (TP 3/7). And later, the connection
eonneetion
between being powerful and being sui iuris is repeated without the reference to reason: "citizens are
undoubtedly more powerful [potentiores], and therefore more fully sui iuris, in proportion as their cities are
larger and beller
beUer fortified"
forLified" (TP 7/16). In shorl, lhere is a sense of "righl" (ius) lhal is bound up nOl nol with
wilh
potestas, or authority, but with potentia, or power/strength; and there is a corresponding sense of being sui
iuris (being of one's own right) that is coextensive with being powerful.
powerfu1. 25 But what exactly does Spinoza take
potentia to be?
Potentia, or power, is a cenlral concepl for Spinoza's melaphysics. Indeed, it il may be regarded as lhe
fundamental unit of ontology as evidenced by his claim in the Ethics that "God's power [potential is his
essence itself' (EIP34). Furthermore, what holds of God also holds of his modes, which
essenee whieh express his power in a
certain and determinate way: "the power [potential of each thing, or the striving by which it (either alone or
with others) does anything ... is nothing but the given, or actual, essence of the thing itself' (EIIIP7dem.).
This way of conceiving of potentfa
potentia is adopled in Spinoza's political
poliLical works as weil,
well, although
alLhough here
he re he makes a
point to connect
eonneet this notion of power with that of right:

... 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

25The claim that one is

i5 sui iuris
iuri.'J' to the extent that one is powerful seems to be a special case of the general principle timt that one's right is
coextensive with one's power [potenüa],
[potential, which is a fundamental tenet of Spinoza's political philosophy. For instance, he claims timt that each
person has "as much right over Nature as his power extends" (TP 2,/4; 2./4; cf. TTP 16). This reveals just hol,lo.·'
how idiosy'l1eraLic
idiosyncratic his (second)
conception of being sui iuris is, since, as we \ve noted \vhen
when discussing his first notion of being sui iuris, this was traditionally understood as a
binary predicate (one
(une is either sui iurisi/lris or in poles/ale);
poiestaie); here, being sui iuris is a matter of degree.
410 Spinoza and Law

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!.

Spinoza and republicanism reconsidered

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

Steinberg !/ History oj'

J.D. Steinbery fdeos 34 (2008) 239-249
European Ideas
of Europcul/ 149
249

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.

2,sTndeed, the best [onTI

2STndeed, form of regime will vary from place to pI
place,
ace, depending in part on whwhat people are accustomed to. See e.g., TP 7//26;
at peop1e 7,.126;
TP 10/7; TTP 18/101-3
18/201-3.
J.G.A. Pocock, "Spinoza and Harrington:
Cf. i.G.A.
29 Cf'. Harringtün: An Excrcisc in Comparison," B(jdraqen en AfededeliJl(Jcll
Comparison," Bijdragen hetrl';/lende de Geschiedenis der
N/cdedelingen hefrt;t!(mde
(1987), 102.
Nederlonden (IYB7),
Nederlalldell
3üCr.
3UCr. TP 11 11,/2, ,vhere Spinoza sllggests
,/2, \vhefe suggests that
timt practically speaking "there is little to choose" between
bet\veen denlOcracies
democracies and aristocracies.
Name Index

Alexy, Robert xv, xx Coke, Sir Edward 62

AI-Farabi,
Al-Farabi, Abu Nasr 362,362,363
363 Comte, Auguste 367
Althusius, Johannes 69, 70 Constant, Benjamin 367
Althusser, Louis xiv 143--67,234
Courtois, Gerard xxii, 143-67,234
Annas, Julia 134 Cristofolini, Paolo xxiii, 355-66
Aquinas, Thomas xi, xxi, xxii, 9,10-12,15,16,
9, 10-12, 15, 16, Cumberland, Richard 79-81
Cumber!and,
50,53-4,69,71,72,74,79,94,122,
50, 53--4, 69, 71, 72, 74, 79, 94, 122, Curley, Edwin xiii, xxii, 79-98, 239
143-4, 157, 159--67
143--4, 159-67
10,49, 54, 69, 148,229,375
Aristotle xi, 10,49,54,69, Darwin, Charles 381
10, 69, 237
Augustine, Saint 10,69,237 Defoe, Daniel 101
Aurelio,
Aun5lio, Diogo Pires xxiii, 249-68 De la Court, Pieter 410
Austin, John xi, 176 Deleuze, Gilles 236, 373, 374, 377, 378
53-4
Averroes (Ibn Rushd) 53--4 De Maistre, Joseph 398
Descartes, Rene xi, 52, 70, 71, 94-5,
94-5,102,144,
102, 144,
Bacon, Francis 250 146,225,382
Bagehot, Walter 7 De Soto, Hernando 405
Battisti, Giuseppa Saccaro 234 De Vattel, Emer 63
Belaief, Gail xv, xxiii, 237, 271-91
Belaiet: 21,362
De Witt, Cornelis 21, 362
16, 320, 367
Bentham, Jeremy 16,320,367 De Witt, Johan 21, 362
Berlin, Isaiah xxiii, 367-72, 375, 378, 379 D'Holbach, Baron 381, 399
Biel, Gabriel 146 Diderot, Denis 384
Bismarck, Otto 319 Digges, Dudley 227
Blyenbergh, Guillaume 222 Dionysius of Syracuse 363
Bodin, Jean 7, 318, 335, 396 Dworkin, Ronald xi
Bosanquet, Bernard 320
Boyle, Robert 303 Euclid 240
Brett, Annabel 405 Ezra 57
Brunschvicg, Leon 362
Bull, Hedley 323 Fichte, Johann Gottlieb 63, 317, 319, 367
Burke, Edmund 398 Filmer, Robert 403
Bynkershoek, Cornelius 303 Florentinus 404
Frederick TI, Emperor (The Great) 318, 329
Caesar, Julius 129-30 Freud, Sigmund 253, 377, 381
Cairns, Huntington xxi, xxii, 3-19, 283 47--65
Frydman, Benoit xxi, 47-65
Calvin, John 18
Campbell, G. 330 Galileo Galilei 51, 70
Campos, Andre Santos xxii, 209-48 Garrett, Aaron xxii, 101-115
Cassirer, Ernst 55 Gentili, Alberico 288
39-46
Ciccarelli, Roberto xxi, 39--46 Geulincx, Arnold 382
Cicero, Marcus Tullius 10,334,403
10, 334, 403 Goethe, Johann Wolfgang von 399
Karl von 330
Clausewitz, Kar! Goyard-Fabre, Simone 263
Cohen, Herman 250-51, 263, 266 Gratian, 10, 12
414 Spinoza and Law

Gribnau, Hans xxi, 21-37 Leibniz, Gottfried Wilhelm 144-5

Grotius, Hugo xxii, xxiii, 6, 11,63, 71, 85-87,
71,85-87, Lessing, Gotthold Ephraim 63, 399
89,93,101-10,112-15,122,171,172, Livy 404
227-9,288,316,325,332,357,383-4, Locke, John 88,101-4,
88, 101-4, 106, 114,364,367,
388,390,393,399,405 381-3,391,393,399
Gueroult, Martial xii, 167
Macherey, Pierre xii
Habermas, Jürgen 64 Machiavelli, Niccolo xxiii, 7, 81,256,258,291,
81, 256, 258, 291,
Hampshire, Stuart xxiv, 236, 376 304,317-19,325,328,329,330,334,
Harrington, James 403 335,338,358,360,362,383,396,403
Harris, Errol E. xxii, 69-78 MaYmonides 48, 53-4, 57, 62, 94
Mai"monides
Hart, H.L.A. xi, xx, 175 Malebranche, Nicolas 148
Hegel, Georg Wilhelm Friedrich 232, 249, 317, Marx, Karl 367-8, 370, 371, 381
Karl367-8,
318-19,326,329,331,367,368,369-70, Matheron, Alexandre 85-7,149
85-7, 149
371,375 Meinecke, Friedrich 326, 334
Heine, Heinrich 3 Mersenne, Marin 146
Heracleitus 10 Meshelski, Kristina xii
Herder, Johan Gottfried 267, 317, 319 Mill, John Stuart 373
Hobbes, Thomas xi, xiii, xxii, 6, 9, 10, 13, 14, Montaigne, Michel de 377
17,26,27,34,48,49,58-62,72,74-5, Montesquieu 30, 32
79-83,85-6,89,91-2,93, 101-4, 107-9,
79-83,85-6,89,91-2,93,101-4,107-9, Moore, G.E. 237
114-15,122,123-4,138,147,164,171, Moreau, P.-F. 151
172, 173, 192, 193, 217, 227, 228, 229,
172,173,192,193,217,227,228,229, Mugnier-Pollet, Lucien 326
250,253,256,257,265,284,309-10,312,
318,320,321,329,330,357,372,373-4, Negri, Antonio 249, 260
375,377,384,391,393-6,403,408 Newton, Isaac 231
Hooker, Richard 11 Nietzsche, Friedrich 377
Hume, David 75,93,224,370,381,398
75, 93, 224, 370, 381, 398
Oakeshott, Michael 213
Israel, Jonathan xxiii, 381, 382-3, 398-9, 403 Ockham, William 94, 217
Ompteda, Dietrich Heinrich Ludwig von 303
Jacob, Margaret C. xxiii Ovid 18,239
Jacobi, Friedrich Heinrich 251
Jonas, Hans 236 Pascal, Blaise 377
Justin 103 Paul, Saint 9
Justinian 10, 49, 404 Perelman, Chai"m
ChaYm 48, 64
Pfersmann, Otto xxii, 169-82
Kant, Immanuel xi, 6, 17,63,
17, 63, 117, 128, 135-7, Philo ofAlexandria
of Alexandria 10,48
10, 48
139,251,263-6,319,324,338-9,367, Plato 69, 361,362-3,367,385
370,379,381,391 Pollock, Frederick 10
Kelsen, Hans xi, xx, 32-3, 39, 45, 249-54,
39,45,249-54, Pomponazzi, Pietro 381
259-60,262--6
259-60,262-6 Pound, Roscoe 17
Kepler, Johannes 70 Prokhovnik, Raia 403, 404, 410
Kisner, Matthew.T.
Matthew J. xxii, 117-39 Pufendorf,
Pufendort: Samuel63,
Samuel 63, 71,101-4,303,309,
71, 101-4,303,309,
316-17,399
Lactantius, Lucius Caecilius 10
La Mettrie, Julien 381, 399 Ranke, Leopold von 329
La Rochefoucauld, Franyois
Fran<;ois de 377 Reale, Miguel xi
Lauterpacht, Sir Hersch xxiii, 303-21, 326, 332,
303-21,326,332, Rocca, Michael Della xv
338 Rosin, Heinrich 319
 Spinoza and Law 415

Rousseau, Jean-Jacques 71,156,257,260,261,

71, 156,257,260,261, Trotsky, Leon 371
299,367,381 Tuck, Richard 405
Rutherford, Donald
Dona1d xxii, 183-207
Ulpian xvi
Savigny, Friedrich Karl von 64, 267
Schleiermacher, Ernst 56, 63 Vaihinger, Hans 263-6
263--6
Schmitt, Carl 249-50, 254 Wal, G.A. xxiii.
Van der Wal. xxiii, 323-52
Seneca 108, 113, 404 Vanini, Lucilio 381
Vanini.
Sharrock, Robert 303 Van Velthuysen, Lambert 81,382
Sidney, Algernon 403, 404, 408 Vasquez, Gabriel 69
Sieyes, Emmanuel Joseph 262 Vaughan, C.E. 277
Skinner, Quentin 402, 404, 410 Vazquez, Fernando 405
Solari, Gioele xiii Velthuysen, Lambert van 103
Spinoza, Baruch xi-xxiii, 3-19, 21-37, 39-44,
39--44, Verbeek, Theo xxiii, 381-99
47-65,71-7,79-81,83-96,
47-65,71-7,79-81,83-96,101-15, 101-15, Verdross,
Verdross. Alfred 326
117-39,143-54,156-7,159-67,169-71, Vico, Giovanni Battista 357
Vico.
174-7,179,183-207,209,210,211-14, Volcker,
Volcker. Paul 49
217-44,249-52,255-62,268,271-5,
217--44,249-52,255-62,268,271-5, Voltaire 382
277-91,293-7,299,303-13,315-21,
325-7,335-43,355-65,367-8,371-9,
325-7,335--43,355-65,367-8,371-9, Walther, Manfred xv, xxiii, 33, 293-301
381-99,401-11 Weber, Max 329, 330
Steinberg, Justin D. xxiii, 401 West, David xxiii, 367-79
Stewart, Matthew xiv William ll, King 410
Strauss, Leo xiii, 48,52,250-51
48, 52,250-51 William lll, King 410
Suarez, Francisco 69,71,
69, 71, 102, 122, 144-5,211, Wirszubski,
Wirszubski. Chaim 402
214,217 Wittgenstein, Ludwig 268
Wolfson,
Wolfson. H.A. 361
Taylor, Jeremy 227
Tönnies,
Tönnies. Ferdinand 251 Yovel, Yirmiyahu xviii
Treitschke, Heimich
Heinrich von 329, 330