Hobbes

Hobbes[1] opposed the doctrine of Grotius with another, from the same point of view but from an opposite presupposition. Human nature is not desire for community (common satisfaction), but selfishness. Man seeks community not for the sake of comrades but merely for his own sake. The origin of great and lasting societies is therefore not mutual benevolence but mutual fear. The detailed implementation is as follows. The state in which people by nature, i.e., prior to their mutual commitment by contract – the “state of nature” – is one in which all have the same rights to all things, but also the same inclination to hurt each other, particularly from the desire for things. The state of nature therefore is a perpetual war and perpetual reciprocal threat and fear. But now the law of nature (lex naturae) or – what Grotius already made use of, as meaning the same thing – right reason (recta ratio), self-preservation (the protection of life and limb), what happens in accordance therewith is justified and responsible, juste and jure. The fundamental precept of nature, therefore, is to seek peace. From this flows two corollaries: the first, that you cannot retain the unlimited right of the state of nature, but must partially transfer it in order to possess what you retain in peace; and the second, that you must keep agreements, because only in this way can peace be attained. Equally, however, there arise therefrom the duties of compassion, gratitude, etc. (in short, all moral obligations), since their reciprocal practice serves self-preservation. So Hobbes brings everything that is law and ethics back to selfishness.

Yet all of these commandments which follow from the law of nature are not binding as long as the state of nature endures, precisely according to their own principles; because as long as one is not sure of fulfillment by others, one’s own fulfillment does not serve self-preservation. That is why in the state of nature there is no mention not only of the civil laws but also of the laws of nature, and it has no other legal standard (mensura juris) than actual benefit. But for this reason it is the law of nature to abandon the state of nature (status naturalis) and to establish the civil condition (status civilis), that is to say, to bind each other in overwhelming numbers to reciprocal assistance against disturbances of the peace. This combination is the state, and only from it proceeds the mine and thine, the obligation to respect other people’s property, because only through it does the assurance exist that others will do the same.

However, this security coming from this connection should not be a mere agreement (consentire) but a union (unio), that is, participants must cease to be a separate independent entities, rather they need to become one will, so that individuals retain no will and no right for themselves, but rather transfer all their rights and all their power (jus virium et facultatum suarum) to a person or a consilium, waiving any [right to] resist and reverse the transfer. That is the supreme power (summa potestatis, summum imperium) or, as we would say, sovereignty. In this manner the state is itself a person (persona civilis), distinguished from all individuals that make it up, so that all these taken together are not to be regarded as a state, excepting he who represents them (repraesentant). A dual contract is therefore necessary for the establishment of the state: the one through which anyone contracts with anyone, and the other through which they all contract with the future holder of the supreme power, to submit, and indeed to submit unconditionally.

This complete transfer of all right and all force to the supreme state power necessarily makes it absolute (imperium absolutum). In terms of its concept, there can exist neither a higher power over it nor a restriction on it, for the latter assumes a higher power. It cannot be bound by laws. There can be no right of subjects against it that it has to regard, no property, indeed no conscience, no judgment over good and evil, but in this as well it is unconditionally subject to the judgment of the supreme state power (the sovereign), and therefore, whoever acts in obedience to state power does not sin. The opinion that the subject might have an independent judgment regarding good and evil, and that a sinful act that he commits by command of the sovereign is a sin for him, is a false and a revolutionary doctrine (seditiosa opinio). Finally church teaching, i.e., the interpretation of the Holy Scriptures, must take place by state authority (although by means of the bishops of apostolic succession) because the individual, if he had the power of such interpretation, would give himself the highest standard of conduct whereby all civil obedience, indeed all of society would cease. Therefore, for Hobbes the church also coincides completely with the (Christian) state, which is to say, by the church he understands Christians united under an external authority. The inner invisible church here below is merely a church in potentia [potentially] not actu [actually]. Given the reasons already brought forward, that authority may be no other than precisely the supreme state power. Only such a unified will, against which wills that are competing with and combatting each other cannot stand, is able to ensure the security of peace, which is the supreme law of nature. Selfishness, which is the core of human nature, can only be tamed by such unlimited irresistible power.

Accordingly, Hobbes stands unmistakably on the same presuppositions that are peculiar to his time and first expressed by Grotius. He also does not recognize a given order standing over men with inherent ethical laws, but wishes to derive such only from the nature of the individual. He too, therefore, established the civil condition on an arbitrary contract of subjects, so that even the validity of majority vote, this “beginning of the civil condition,” can only be decided by unanimity, and he knows no other term of injustice (injuria) than that of contract infringement, so that against those with whom one has not contracted, no injustice can be committed.[2] Peculiar to him, though, is that he removed ethics from law and the state, indeed morality itself. The natural law (lex naturae), on which alone he erects law and ethics, is absolutely nothing ethical but the mere physical instinct of self-preservation; his right reason (recta ratio) is a mere law of prudence. No less peculiar to him is his political result: the absolutism of the state, which never before him had been taught, and subsequently not to that degree at least, such that he even excludes the moral accountability of subjects, namely in the way that citizens are subjected, not as in Plato to a higher harmony, but to an arbitrary will. Hobbes arrives at this result by being consistent: The vacuity of social relations which is here assumed, the undressing them of their ethical ideas in order to base them purely on human will, must lead to the absolute power of the united human will. Rousseau later attained similar results in other ways. Grotius would have had to arrive at them if from his principle salus publica suprema lex esto he had exhaustively drawn the consequences. But Hobbes was also led to his absolutist doctrine from a practical motive. The religious and political divisions, the civil war, that promptness of turmoil from religious conscience that surrounded him in his own country, filled him with longing above all for peace and unity, and the idea that such cannot exist where any power of resistance, especially for the reason of conscience and religion, could weigh. In both respects, both in its materialistic conception of life and in the practical power of his political result, Hobbes is an excellent representative and cultivator of the orientation that found its development in the West, in opposition to the more ethical and inwardly contemplative manner of contemplation suggested by Grotius and cultivated particularly in Germany, even though the outcome of that orientation was quite different, indeed the opposite to the one Hobbes strove after. But Hobbes’ deep insight into the foundations of the state had true scientific merit, namely, the notion of ​​the unity of the state in contrast to a mere society; and connected to this, he first expressed the idea of ​​sovereignty in all its depth; in this he stands over Grotius. For Grotius distinguishes the state merely from the prince, while Hobbes also distinguishes it from the people.[3] In particular, Hobbes substantially developed the system of legal philosophy begun by Grotius, he brought many and significant doctrines to clear discussion which, although already available, were only veiled in the system of Grotius. It is especially the doctrine of a state of nature, the deduction that the supreme principle of law cannot be fulfilled in the state of nature, and therefore that it postulates the state, the description of the events leading up (or the legal relation) in which the state is established by contract. These doctrines, if not true in themselves, are necessary for the position and therefore constructed the building of “natural law” up until the last moment.[4]

Pufendorf

Pufendorf[5] is considered to be the one who implemented the principles laid down by Grotius, and in so doing to have perfected the sociabilist system. If by this one understands that he applied those principles consciously and logically to the subject matter, then that would be inaccurate. Such inner systematic development cannot be found in him, not even to the degree of Grotius himself. But Pufendorf did implement the material of the ethical and jurisprudential discipline in a hitherto nonexistent completeness and external order, and thus gave to the Grotian doctrine an outward systematic form. Moreover, he brought the philosophy of law into connection with the overall philosophy of his time, as it in the meantime had been founded by Descartes, albeit only externally, in that his system of natural law presupposes the philosophical results thereof. It must also be recognized as an achievement, that he investigated the anthropological foundations of law precisely in consequence of the general philosophical point of view: intellect, will, action, and thus gave the instigation to cultivate significant legal doctrines, thus namely accountability [Zurechnung]. All this taken together ensures him a place in the history of natural law. But that he furthered natural law in terms of content as well, must be denied. He rather renders the notions of ​​Grotius superficial than that he develops them; he summarizes the drive to sociability not as Grotius does, as mutual benevolence, but merely as mutual need; he decisively renounces the bond with God and the Christian revelation, which Grotius (albeit inconsistently) still maintained, and declared (despite the opposition of theologians ) natural human reason to be the sufficient source of moral knowledge; he binds God to the natural law not as Grotius does, by virtue of moral necessity, but because God mechanically cannot maintain people otherwise than via the drive to sociability; he thoroughly confuses the spheres of law and morality that Grotius separated. In fact, he transforms the pure discipline of law founded by Grotius into a discipline of moral philosophy, a doctrine of duties. He also contributed no new aspects for the systematic expansion of the natural law system. In the final completed form of natural law with Kant, one is therefore reminded of Grotius, Hobbes, and Thomasius, as those who provided the elements, but not Pufendorf. Rather, his main significance is only the external dissemination of doctrine via his catchy representation.[6]

Thomasius (Gundling)

By contrast Thomasius[7] established internal, and indeed essential, progress of the discipline of natural law through his separation of morality and law, as was undertaken in the previous section [Book III, Part II], whereby the provisions for inner peace are moral and cannot be compelled, while those for external peace are legal provisions and can be compelled. But this is not a completely new adventitious moment. Because even Grotius himself, as is evident from the above presentation, separated the legal sphere from the moral under the names law in the stricter and the broader sense, and put both under different principles, the former under the drive to sociability, the latter under the proper estimation of things. Indeed, the innermost character of the doctrine founded by him is precisely that it strives to highlight the pure legal principles. But the distinction is not presented by Grotius in clear concepts and is not energetically executed. Hence it was that Grotius’ successors blurred, indeed completely lost this distinction: Hobbes derives the duties of compassion, gratitude and the duty to fulfill contracts equally from self-preservation; and in the same manner Pufendorf summarizes the right use of language (not to lie) and the right use of things (property) in the same chapter, and the like. With Thomasius the separation of the two spheres is secured for good, in that he emphasizes a different motive or goal (inner and outer peace), a different ethical character (justum and honestum – decorum)[8] and a different effect (enforceability and unenforceability), hence delimits it in terms of all relations, and sets for himself the specific task of implementing the distinction through the entirety of ethics. Moreover Thomasius was governed here by a practical motive, which pertains to the innermost driving force of the entire development, by which his distinction procured a very different result than that of Grotius. For him, namely, the important thing was to keep external force far from the inward moral, especially the religious sphere. It is mainly the interest of freedom of religion that drove him to make the distinction between the two spheres, and therefore he first formulated it, before the publication of his Fundamente des natürlichen Rechts [Foundations of Natural Law], for a practical reason, namely to defend the Pietists against religious oppression by the orthodox, in the publication Das Recht der evangelischen Fürsten in theologischen Streitigkeiten [The Right of Protestant Princes in Theological Disputes]. This leads him to the result that for the purpose of salvation, and thus of piety and faith, no provision of a legal nature, and hence coercible, can exist and be maintained,[9] and therefore he emphasizes not only, as Grotius did, the different origin and purpose of moral and legal precepts, but also and especially the different effect, the coercibility and uncoercibility thereof. In this regard he brought, in one mighty stride, not only the scientific system of natural law but also the lively intention that underlies it, closer to the goal, so that Kant only had to apply the finishing touch. This is reflected also in Thomasius’ practical achievements, his struggle against torture and the witch trials.

Since then, the formal criterion of the legal sphere, coercibility, which never again was forfeited, was especially emphasized and developed by Thomasius’ successors, Gundling, Gerhard, Fleischer, et al. The distinction between the two spheres, a vital question for Thomasius, became a school subject and remained so up until Kant. The scientific result of that distinction manifested itself in full evidence with Gundling, Thomasius’ most significant successor. His natural law (jus naturae et gentium) is a pure doctrine of law to the exclusion of morality, which he treats under the name of ethics in another work. Gundling is to be regarded as a pure follower of Thomasius, even if he did not admit to it. Certainly, he often goes back to Hobbes and restores his proper relation against widespread misinterpretation. He also seeks to rectify various and sundry controversies according to his own manner, selecting the proper viewpoints from among all previous authors. But his basic concepts and teachings are from Thomasius: happiness as the principle of ethics, its divergence in terms of outward and inward peace, the restriction of the legal sphere and the perfect or enforceable obligation to the former: this is the construction of his natural law. If he seeks thereby to found that principle of bliss more deeply, in that the laws given to mortals have as their object the conservation and perfection of their nature, but that this conservation and perfection consists precisely in happiness, then this is a notion scarcely worth mentioning.

Wolff (Darjes, Höpfner)

A changed method of dealing with natural law came on the scene with Wolff.[10] Wolff treats natural law simply as a moral philosopher. The principle he newly issued for morality, the perfectibility [Volkommenheit] of man, is for him the law or right of nature tout court, and he implements it through the entire social condition. He does not entertain a separation of law and morality like that of Thomasius. While he retains the distinction between perfect or coercible and imperfect or non-coercible obligation, this distinction is incidental, marginal, it does not determine the shape of his system, and he did not have a standard, like Thomasius, for determining which duty is coercible and which is not. Therefore he does not divide the entire ethical sphere according to the moral system, as sketched by Pufendorf: duties towards himself, towards others, toward God; and competence is only the result of (private) obligation, and actually is nothing other than permission: what I am committed to, I need also to be free to do. Wolff’s moral principle is certainly more correct than the earlier one of happiness.[11] But for natural law he accomplished nothing as far as content is concerned, he nowhere either enriched nor more closely determined it. At the most, one can thank him for the development of various concepts: the status moralis, which consists in being the subject of law and obligation, the distinction between absolute and hypothetical rights and such like, as a promotion of clarity in the ethical sphere. If anything, he lost the survey and delimitation of the ethical sphere gained by Thomasius and furthered by Gundling. He took a wrong step that had quickly to be taken back. On the other hand, he gained significance for the formal or general scientific character of natural law by applying the demonstrative method. The philosophy of Wolff generally always is of the character that demonstration is its innermost essence. Other philosophers are led by some material foundational view, which to them is the supreme truth, or at least the supreme problem. For example, Spinoza of the oneness of God, therefore His impersonality and the absorption of the creatures in Him, Leibniz by contrast of the formation and existence of independent individual creatures (principium individuationis). By contrast, for Wolff there is no such supreme material truth; rather, for him the syllogism as such is the supreme, the only truth. He takes from Leibniz the two principles of demonstration, the principle of non-contradiction (principium contradictionis) and the principle of sufficient reason (principium rationis sufficientis), and leads them through the entire sphere of ​​knowledge. That which he and every other person knows, he presents in the form that it does not contradict itself (because “the essence of a thing is its possibility,” that is, precisely amenableness, non-contradiction) in that everywhere he takes the features from the definition which he put in it himself (according to experience); and then it is valid for him as demonstrated. For example, “seeing is founded in the essence of an animal that has eyes,” thus it is a characteristic thereof, which obviously is to say nothing other than seeing is the characteristic of a seeing animal.[12] The most characteristic aspect of this method and for the intellectual organization of the man is that he thinks that one has no immediate certainty even of his own being, but gains it (even if, for most, without realizing it) only by means of a deduction: “If we wish clearly to realize how we are convicted by these reasons, that we are, then we will find that the following conclusion is contained in this thought: Whoever is aware of the being of himself and of other things, is. We are aware of our being and that of other things. Therefore we are.”[13] Hence not even Wolff believes that he is, if he is not convicted by reasons for it. Wolff also applies this syllogistic method to the ethical sphere, and if in itself this is nothing more than an absurdity, nevertheless the requirement which underlies the rationalist philosophy, to find results purely from reason, is thereby first activated, and the inevitable alternative is posed therewith for a subsequent, more rigorous scientific conception, of either abandoning this requirement, or making an attempt really to use bare concepts of reason. Wolff’s demonstrative treatment of the entirety of philosophy and hence the philosophy of law has no other value than that of being an impetus for Kant to take the rationalist principle seriously.

Subsequent legal-philosophical treatment closely adhered to Wolff. Even so, there was still the need, if not exactly a conscious one, to return to the more correct position of Thomasius that had been lost. Wolff’s most significant and most successful student, Darjes, indeed retained the entire structure of the Wolffian ethical system, but he used the second part, obligations towards others, to derive the Thomasian segment, the field of compulsory duties, or, as he calls it, to gain “jurisprudence” as opposed to “ethics.” But the dwindling of the Wolffian system and the return of the Thomasian is fully shown with Höpfner, who understood the perfectibility- and happiness-principle together and synonymous; he departs from the Pufendorfian-Wolffian division of natural law into three classes of obligations, and rather delimits his discipline according to Thomasius’ and Gundling’s method as the doctrine of “natural compulsory duties.” Nor does he treat primarily of obligations in order to derive rights from them, but rather everywhere originally treats of rights. At the same time is already reflected with him, how the general texture of ideas leads to Kant, in that the will already widely is asserted as the ultimate principle of rights, thus especially in the deduction of ownership as well as contract. Wolff’s doctrine in relation to legal philosophy is only an instigating episode between Thomasius and Kant. –

Opponents of natural law (Selden, Coccejus, “dubia jura naturalis”)

During this period of the development and rule of the natural law system, by no means was resistance against it lacking. This stemmed from the correct realization that the natural law system completely dissolves the bond between the human world and God. The place of opposition was occupied by Selden and Coccejus;[14] and later on, in relation to moral philosophy, Crusius. But these opponents were not able to indicate either the innermost seat of error and separation from God, nor were they able to give any doctrine maintaining the bond with God that scientifically sufficed. Selden objected to the grounding of natural law on mere human reason by referring to the absence of a binding power in human reason, and the conflict of reason among a number of people and teachers, which all point to a higher author of, and a higher sanction for, natural law. But his own reasoning contains nothing further than this: the natural law that comes from God has an obligative and a permissive component; the obligative is that we must remain faithful to the contracts and state constitutions that we, again by contract, have entered into (pactis ac regiminum formulis civiliter initis standum); the permissive is that the sphere left free can now be precisely determined by the people through their agreement in a binding manner,[15] but the binding force does not arise from the contract as such (ex simplici hominum ratione et consensu) but from God’s permission that they by mutual agreement prohibit or enjoin what is free in itself (ex consensu mutuo inhibere). Finally, however, God’s laws are promulgated by the revelation in Scripture, which are mandatory everywhere and necessarily. Hence Selden fought a side of the natural law system that was the least relevant, because the natural law doctors themselves often and gladly admitted that the binding nature has its last (remote) ground in God, and his own result coincides with natural law’s in the essential thing, that at the origin contracts are the source of all law. The only thing in which he has the advantage is that he, clinging to the divine origin of all moral precepts, can vindicate the supreme position for the immediately revealed commandments, which with the bare rational moralists remained completely sidelined.

Coccejus agrees essentially with Selden in the polemic: he misses a binding power in human reason and (which admittedly is less decisively expressed) a content for commandments necessarily arising from the principle of social and peaceful life. His own doctrine, however, which he sets in opposition, is more thoughtful and decisive than that of Selden. The divine will, which he makes into the principle, is to be recognized from His deeds and works and from the perfection of the divine essence (no mention of revelation thereby), and from this will, the entirety of the commandments of natural law proceed directly – not only by means of contract or by means of deduction from one simple principle, which should include everything: the freedom of one’s actions, the prohibition of damage to another, the necessity of the common life among men (societas communis) and the rights which arise therefrom, the legal effects of declarations of intent, disposition over one’s own, the right of inheritance of children, domestic authority, the necessity of the state, the regard for and power of government. To this degree Coccejus truly opposed the error in that system, which was the ratiocination and foundation of the legal system on the human will and contract; and the accusation lodged against him at the time, that he taught nothing different than Pufendorf, was unfounded, since the latter also recognized reason to be a work of God. But there is lacking, firstly, any mediation between the divine will (His deeds, His perfection) and the results that Coccejus teaches to be the content thereof; we do not see how the inheritance of children, regard for government, and so on, follow from divine perfection; secondly, the ethical and legal order in itself is not at all comprehended by him, indeed he contributed little to their deeper understanding; it is all set down as positive [as opposed to natural], and indeed the basic concepts thereof (the concept of law, competence, and the like) are much more insufficiently and incorrectly comprehended than with Grotius and his more significant successors. Nothing was thereby achieved by such an opposition to natural law.

Other objections to the same thing, especially as recited by the author of the then very celebrated writing Dubia juris naturalis, were based on mere skepticism and therefore even less likely to affect its reign.

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Notes

[1] Hobbes, de cive 1642 (Leviathan 1651).

[2] Lib. I, cap. 1, §. 3.

[3] With Bodin, the concept of sovereignty is certainly more concrete, determined more vividly than with Hobbes, but merely as something given; it is not deduced from the essence of the state.

[4] Hobbes and Spinoza have often been set in parallel. This has been prompted by both the mightiness of the two intellects, and by the impression that with both, actual ethics disappears and is replaced by a natural power; and indeed, with both the nearest expression thereof, the natural law of self-preservation. Yet they differ from the ground up. Certainly, Hobbes founds law and custom on the natural instinct of self-preservation; but what he derives from this natural impulse is for him nevertheless a demand, such a one that man should freely fulfill or violate; his law, therefore, is truly ethical (at least regarding the form, i.e., the manner of accomplishment) even though in terms of content it is only physical. By contrast, Spinoza founds law and custom on the power of nature, i.e., the metaphysical necessity of the universe. His law of nature is not to be met by man, but by nature itself and inevitably, and man does not have the freedom to violate it. There is no demand, no ought in the actual sense. The form of ethics also lapses, the working of the law is not ethical but merely natural. The pantheistic position allows ethical content to the law, for example, self-sacrifice (Hegel’s doctrine would later demonstrate this), even though there is not much of this to see in Spinoza himself; but it does not allow an ethical mode of action to the law. On the other hand, Spinoza did not share the absolutist result, and indeed he was concerned that he would be categorized together with the hostilely regarded Hobbes in this regard. A sentence in his Tractatus refers to this: “People may not transfer all power to the authorities, because they cannot,” and in his letters (epistola 50) he himself points up the difference between his doctrine and that of Hobbes: quod ego naturale jus semper sartum tectum conservo, quodque Supremo Magistratui…, non plus in subditos juris, quam juxta mensuram potestatis, qua subditum superat, competere statuo, quod in statu naturali semper locum habet [I will always firmly maintain natural right, and that the supreme magistrate …, does not have more of a right over his subjects than according to the degree by which his power exceeds that of a subject, which is always the case in the state of nature]. The position of Spinoza has no other refutation against this absolutism than that such is not possible according to natural law, and the difference between the state of nature and the post-contract condition cannot be determined where the power of nature is everywhere recognized.

[5] Pufendorf, de jure naturae 1672, de officio hominis et civis 1673.

[6] Pufendorf is best evaluated in Warnkönig, Rechtsphilosophie [Legal philosophy], p. 50.

[7] Thomasius, institutions jurisprudentiae divinae 1688, fundamenta juris naturae et gentium 1705.

[8] With Thomasius, decorum comprehends duties towards others, honestum duties to oneself, and therefore they are based on the Pufendorfian system; but both together are opposed to justum as a completely separate sphere of coercible duties.

[9] I referred to the erroneous nature of this Thomasian doctrine in relation to the church, that he confuses coercion regarding individual salvation and individual faith with coercion for the maintenance of ecclesiastical order, hence public doctrine, preaching in the name of the church, in my book Die Kirchenverfassung nach Lehre und Recht der Protestanten [The Church Constitution according to the Doctrine and Law of the Protestants]. See the more detailed execution of the territorial system founded upon this, in the same place.

[10] Wolff, jus naturae methoda scientifica tractatum 1740––1750 and his Institutiones juris naturae et gentium 1754.

[11] Nevertheless, on this point cf. Philosophical Presuppositions [Volume II, Book I of this work], §. 29.

[12] When Wolff allows himself to act beyond this purely analytical manner, it goes badly for him. Thus, for example, he proves: because God had to create that which is most perfect, the planets must have inhabitants. He could just as well have proven from the perfection of the divine creation that people do not have to have only legs, but also wings.

[13] Wolff, Vernünfftige Gedancken von Gott, der Welt und der Seele des Menschen, auch allen Dingen überhaupt [Rational Notions of God, the World, and the Soul of Man, likewise All Things in General], §. 6.

[14] Selden, de jure naturali et gentium juxta disciplinam Ebraeorum 1640, in particular lib. I, cap. 7 and 8. Henricus Coccejus, Diss. de principio juris natur. 1699 and in particular in the “Positiones pauculae et generalissimae …. preelectionibus Grotianis praemissae.”

[15] “Simulatque ex ejusmodi permissione quid ab hominibus sociatis coercitum, vetitum seu constitum est, ad illud in quod sic consenterant ipsi sive pacto sive deditione sivc aliter …. observandum obligatos esse.”