Character of the writers at the start of the new epoch

At the turning point of both ages, that is, at the beginning of modern history, is a class of writers which does not, like Descartes, Grotius, Locke, bring a simple energetic principle to bear, as it corresponds to the more recent world-shape, but makes the object of treatment an unprejudiced, often still undecided conception of public life, lacking a clear-cut statement of the problem. Their writings are the product of education from classical antiquity, the broad knowledge of which was now widespread instead of a one-sided preoccupation with Aristotle, and the intellectual movement and sober assessment which was opened up by the Reformation. In the freshness of these newly acquired intellectual elements they seek after the relations of civic order, which began to consolidate not long before, to scientific knowledge. Among these belong in particular Bacon and Bodin, and to some extent also Thomas More.[1]

Thomas More

Thomas More in his Utopia provides a replica of the Platonic Republic, a description of an ideal state of human common life as it lies beyond reality and possibility. Even the form of government is platonic: an elected Senate of excellent families, at its apex a lifelong magistrate from the rank of scholars (Plato’s philosophers). Similarly, the main and fundamental idea of ​​his ideal, as with Plato, the subordination of material interests and pursuits, their limitation to indispensable necessity, and the community of goods, or more precisely, of the economy: fields distributed equally, the harvest brought to market and the requirement of every householder distributed to him without payment, under legal determination of daily working hours, and in small numbers at that, so that the remaining hours remain free for intellectual pursuits. But in this picture More does not present the actual ideal of his nation, as Plato did; he does not provide a moral life assessment which is already active in the formation of states, but is the scientific expression thereof; on the contrary, he completely abstracts from this, both from the conditions and the life assessment of his nation. His account is therefore nothing else than the lovely game of a noble and educated mind, an attempt to demonstrate itself in the newly acquired antique form, and from this it is understandable that it was and remains without effect. Incidentally, a complete sketch of the outlines of today’s socialist economic system was given in More’s book, only with the glorious difference that he did not make possession and enjoyment the final end, like the latter does.

Bacon

Bacon is much more important. Compared to More, he once again represents the empirical standpoint, and does so in an independence gained from permeation in classical education, drawing from his own life experience and contemplation of national conditions, focusing on life, the national condition. With him there is no question of a peculiar scientific principle, of a system peculiar to himself. But he enunciates profound insights which could have served to rectify subsequent systematic theory. Standing out among them are his conception of the state that ought not limit itself to public law: it has the task not only of guardian (custos) of private law, but also of religion, public mores, military power, public welfare; furthermore his theory of the origin (sources) of law, in particular the meaning and value ​​of customary law and court practice. This teaching of his about the sources of law has only in recent times come to the fore again, through Savigny. By contrast, as a philosopher he planted the seed of a scientific development that directly links to him, and in its later stages exerted the most important influence on the views of law and the state, although quite opposed to those that he himself held to; this will be discussed at the close of the following book.

Bodin

Bodin’s Six Books on the Commonwealth eminently manifests a new era of intellectual culture [Bildung], which arises in the sixteenth century. In terms of objects, it is similar to that of Thomas on the “government of rulers.” In addition, in terms of structure one sees Aristotle’s Politics in it. But the freedom of the modern era is already dominant here. Bodin joins Aristotle not only in concepts and doctrines but also in problems and the procedure of investigation. Likewise, the theatrical performances are eliminated. Hence, the legal-philosophical elements of the Middle Ages are all abandoned, and his book is therefore also completely or at least predominantly political theory (politics), not legal philosophy: herein it is the exact counterpart to the subsequent work of Grotius. He seeks no principle, no basis and standard of all law; not even the legal basis of the state and the duty of the subject is a subject of his study. Although he presupposes the transfer from the people as the actual ground of state power, since everywhere the first and natural mode of conceiving the matter is the introduction of the existing constitution by conscious act, which can only be an act of the people; yet he admits this itself is not sufficient for the legal basis thereof. His aim everywhere is more oriented toward working out the existing, penetrating the luxuriance of the existing political situation, and on the other hand to recognize the salutary, the wholesome, but not to establish some absolute legal necessity. He therefore begins by giving sharply delineated definitions of state, of family, of sovereignty (“majesty”), of the various forms of government, even the various types of monocracy (dominatus – regia potestas – tyrannis). He then seeks the proper political maxims about conservation, change, development of the state and its institutions. Finally, he compares the forms of government with each other in order to discover among them the more perfect, the more salutary. Especially prominent is his doctrine of the necessity that the laws and forms of government must correspond to the conditions and manners of the people, and the already extensive investigations he makes in that regard; for this reason he has rightly been characterized as Montesquieu’s predecessor, while himself having a predecessor in Aristotle.

In terms of substantive content and intention, however, his book is mainly a scientific justification of monarchy. With the emancipation from Aristotle and the weakening of theocratic ideas, it was a requirement, and first a possibility, to comprehend the constitutional situation of the Germanic states, hence the monarchy and specifically the peculiar Germanic monarchy, in itself and independently, so that the nation, from the purpose of which it had emerged, also finds its satisfaction in it, and especially that the true legal relationship between king and people (which theory and life may already have shaken) be recognized. Bodin meets this requirement. He teaches the advantage and higher perfection of the monarchical form of government, partly from earlier commonly-accepted reasons, partly due to essentially new and often witty conceptions, but he only praises monarchy moderated by aristocratic and popular elements. He declared sovereignty (“majesty”) to be a power [Gewalt] released from the laws, which, however, in his sense only means that the sovereign prince unites all regard [Ansehen] in himself and is subject to no judge on earth. Finally, in accordance with this he teaches the absolute illicitness of killing or dethroning the king when he really is king, i.e., sovereign.

It is with Bodin like it is with Bacon: there is no sharply delineated principle and system based thereon. They are considerations of a judicious man regarding political problems. There can be no followers of Bacon or Bodin, nor enemies; but anyone anytime can learn a great deal of truth from them, and base much that is truthful on their authority. In the writings of both of them there is richness and solidity of ideas. But this entirely unprejudiced conception, which however does not penetrate to the final grounds and is not systematically rounded off, had no lasting effect on the age. The latter strove for a thoroughly conscious and self-contained knowledge, and the intellects which extracted a single aspect from the wealth of the subject, but situated it in all its sharpness and carried it through to the final consequence, were therefore, despite their one-sided fallacy, the ones which initially achieved scientific predominance.

This beginning of the world era following the Reformation also has the characteristic that the ethical element is everywhere held in higher esteem and is maintained more carefully even in science than the material and mechanical, and that the ethical significance is recognized as supreme, especially with the state. Thus, Melanchthon declared the respectability of outward behavior to be a goal of the state (honesti mores in externa vitae consuetudine), Bacon the common good (bene vivere in the sense of Aristotle), namely religion, discipline, etc. Bodin ventilates in detail that the outward comforts of life form a very subordinate purpose of the state vis-à-vis its moral purposes, and among these sets the “contemplative” purpose (the worship of God) as the supreme one. More, finally, starts from the complete suppression of material interests. It was the subsequent period that came to the profane conception that the protection of life and property is the actual, indeed sole task of human community.

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Notes

[1] Thomas More, De optimo reipublicae statu deque nova insula Utopia, 1517. Bacon († 1626), De augmentis scientiarum, the chapter entitled “De fontibus juris.” Bodin († 1597), De Republica.