Pufendorf and Universal Jurisprudence

INTRODUCTION by Thomas Behme.

Pufendorf’s earliest work, the Elementorum jurisprudentiae universalis libri II (Two Books on the Elements of Universal Jurisprudence) marks the starting-point of his career as a lecturer on natural law and of the emergence of the modern natural-law tradition in Germany. Dedicated to Karl Ludwig, Elector of the Palatinate, one of the most splendid and enlightened rulers in seventeenth-century Germany, the work secured Pufendorf a professorship in international law and philology at the University of Heidelberg, the first professorship of that kind in Germany and one that included natural law in its brief. The subsequent establishment of natural and international law as university subjects in Germany had a strong impact on the development of enlightened despotism and on the great law codifications in Prussia and Austria at the end of the eighteenth century.1

Though overshadowed by Pufendorf’s larger work on natural law, De jure naturae et gentium, and its textbook abridgement, De officio hominis et civis juxta legem naturalem, the Elements already contains essential features of his mature theory. What distinguishes it from those later works is the specific organization of the book, which methodologically follows the reformed, Euclidean Aristotelianism of his mentor Erhard Weigel, a mathematician and philosopher at the University of Jena (1625–99). Pufendorf’s aim as articulated in the preface to the Elements was to develop natural law as a demonstrative science modeled after the mathematical disciplines. He saw the traditional denial that a moral science was possible as a misunderstanding of the Aristotelian doctrine of demonstration. In a scientific proposition, necessity does not refer to the subject of the proposition as distinguished from the predicate, but to the necessary connection of subject and predicate that can be demonstrated by some undoubted axiom or principle. This interpretation of Aristotelian Apodeixis as a universally applicable method of demonstrating necessary relations in any given field of knowledge—in contrast to its traditional limitation to the theoretical disciplines of mathematics, physics, and metaphysics2 —is taken over by Pufendorf from Weigel’s Analysis Aristotelica ex Euclide restituta (Aristotelian Analytics as Restored from Euclid) of 1658.3 According to Pufendorf, the method is applicable also to human actions, for though they depend upon the free will, they can be an object of demonstration as far as the “rectitude . . . in their order according to laws” is concerned.4 Like the Analysis Aristotelica, the Elements is arranged as a system of definitions and (rational and experimental) principles, from which propositions about specific matters and their relations are derived by syllogism.5 To make the text more readable, Pufendorf did not introduce the propositions following the principles, as the order of logical inference would demand, but added them to each definition or principle as a kind of scholion containing a detailed exposition of particular matters subsumed under the general title.6 Here Pufendorf often draws on sources that are not explicitly cited (especially Roman, Hebrew, and canon law) but that are discussed in a critical manner despite the syllogistic structure.

The definitions contained in the first book of the Elements concern basic moral and legal concepts that constitute the doctrine of moral entities [entia moralia]. In contradistinction to physical entities, which are qualities and processes resulting from the inner principles of natural substances (and thus ultimately from divine creation), moral entities are instituted by reasonable creatures who impose some rule on their freedom of acting. The authorship of such rules is twofold: on the one hand God who does not want “that men should spend their lives like beasts without civilization and moral law” and on the other hand man acting according to convenience and human requirements.7 Starting with the definition of human action as voluntary behavior whose effects are imputed to the agent, Pufendorf divided such action according to its object, principles, affections, and effects and thus developed a view of the moral world as a hierarchically arranged tree of definitions that embrace the central legal concepts in an allegedly self-contained and complete system. The most important concepts are “state” [status], that is, a configuration of rights and duties that constitute a kind of moral space for persons and their actions;8 and the “moral person” [persona moralis], that is, one or more human beings considered under whatever state they have in communal life.9 Like all moral entities, moral persons do not subsist in themselves but are “modes” that arise from voluntary imposition and are to be distinguished from their natural bearers. A man will therefore bear several moral persons or roles in social life.10 Nonetheless, moral persons (like moral actions and things) are considered like substances (within the sphere of moral entities), for they themselves also bear other moral entities considered as moral “affections” [affectiones] or qualities.11 The most important of these are the operative moral qualities of “obligation,” “right,” and “authority,” which are correlated among each other and are ultimately grounded in “law” conceived as a decree of a superior who has the authority to direct the actions of his subjects.12 While “obligation” [obligatio] denotes “an operative moral quality by which some one is bound to furnish, allow, or endure something,”13 the corresponding quality arising in the person to whom one is bound is named a “right” [ius], an “active moral power [potentia], belonging to a person, to receive something from another as a matter of necessity,”14 or—with a stronger emphasis on the person’s ability of performing—authority [potestas] as “an active moral power by which some person legitimately and with a moral effect is able to perform a voluntary action.”15 All moral entities are ultimately rooted in natural law conceived as a divine decree imposed in accordance with created human nature and immutable as long as human nature remains unchanged according to divine will.16 Thus the contents of natural law must be learned through a consideration of human nature, its desires and conditions, while the obligatory force of the law is solely derived from the divine will.17

Among the principles of the natural law system only two are considered as axioms, whose “certainty and necessity, flows from reason itself, without the perception of particulars,” namely, the axiom of imputability of voluntary actions “that may be directed according to a moral norm,”18 and the axiom of the obligatory nature of norms in proportion to the authority of the person prescribing them.19 While imputability and the prescriptive nature of norms express formal requirements of morality, the material content of natural law is exclusively grounded in the other kind of principles—the Observations—whose certainty “is perceived from the comparison and perception of particulars uniformly corresponding to one another.”20 They concern the human intellect and its faculty of (moral) judgment (Observ. 1), the liberty of the will (Observ. 2), the natural sociability of man (Observ. 3), the harmony of self-preservation and society (Observ. 4), and the necessity to establish human sovereignty in particular societies (Observ. 5). Here Pufendorf mainly draws on the natural law writings of Hugo Grotius and Thomas Hobbes, whom he mentions in his preface. The basic anthropology contained in the observations emerges mainly from a critical discussion of their natural law doctrines, resulting in an effort to reconcile Hobbes’s egoism and concept of human society as an artifact with Grotius’s doctrine of social appetite conceived as the telos of a rational and social nature.

As a universal science of “law and equity, . . . by virtue of which the duties of all men whatsoever . . . are governed,”21 the natural law system of the Elements also embraces matters belonging to international law, reflecting its growing importance in the emerging system of sovereign national states. In line with the Hobbesian identification of natural and international law,22 the Elements does not treat these matters as a separate body of law but subsumes them under the general definitions of moral entities comprising items of natural, civil, and international law. Thus the scholion to Def. 5 of a moral thing (§§7–10) also discusses a subject most pressing for Pufendorf’s contemporaries, the freedom of the sea. As the citations of the relevant parts of De jure naturae et gentium reveal, Pufendorf was well acquainted with the writings of Hugo Grotius, John Selden, and Alberico Gentili in that field.23 According to Pufendorf’s natural law theory, property originates in negative community, that is to say, the natural world is equally open to everyone and it requires contractual consent for anything to be appropriated; but he leaves the concrete manner of consenting to be determined by the people involved. On this basis Pufendorf argues for the possibility of exclusive dominion of parts of the sea, especially in coastal areas and straits. He rejects the Grotian view that the “unbounded” nature of the ocean argues for the impossibility of its exclusive dominion (De jure belli ac pacis, 2, 2, §3). This issue and that of the inviolability of legates (Def. 13, §26) are closely related to the actual circumstances under which the Elements was written. As a member of the Swedish diplomatic mission in Copenhagen in 1657–58, Pufendorf was arrested by the Danes when the Swedes suddenly reopened the war against Denmark that had been suspended by the peace of Roskilde in 1658, a war mainly fought for the control of the Sund, the strait between Sweden and Denmark.24

Apart from the Euclidean methodology shown in the arrangement of definitions, principles, and propositions, the “geometric” nature of the Elements also manifests itself in a model illustrating moral degrees by spatial magnitudes. The basic idea of the “moral sphere” introduced in the scholion to Def. 18 (The quantity of moral actions is the estimative measure by which they are said to be of a certain degree) is to illustrate “divergence from law” by an angle, the first side of which represents the thing commanded by law, the second side the (actual or intended) action, and the angular distance the degree of fault. The indefinite number of possible deviations from law according to intention or execution corresponds (in the geometric model) to the infinite number of lines (and of the angles formed by them) intersecting in any point. So the complete quantitative aspect of moral actions is best illustrated by a sphere whose center forms the point of intersection of the sides of all moral angles. God is “conceived of as seated at the centre of the moral sphere, . . . as though in our heart, from which proceeds . . . the radius of the law . . ., the finger, as it were, of God, pointing out precisely to us the polar region,” while he leaves “behind Him, as though He had turned his face away from it, the antipolar district . . ., opposite to this.”25 Of the sphere’s three cardinal circles, the horizon represents the radius of execution and the meridian the radius of intention, while the equator separates the polar hemisphere of enjoined actions from the antipolar hemisphere of forbidden actions. An appendix added to the Jena edition of 1669 (and all subsequent editions) enlarges the moral sphere by further concentric orbs arranged like the orbits of the Copernican system and representing the objects of moral actions (and the respective commandments of the Decalogue). It seems strange that this addition was made in 1669, the year when Pufendorf finished De jure naturae et gentium,26 in which he dropped that geometric illustration of moral quantity and denounced the moral sphere as a product of juvenile subtlety [argutia].27 Already in Pufendorf’s lifetime Erhard Weigel was suspected of being the real author of the appendix.28

In his main work, De jure naturae et gentium, Pufendorf not only dropped the moral sphere and its geometric illustration of moral quantity, but also the Euclidean arrangement according to definitions, principles, and propositions. Though still committed to the program of a demonstrative science of natural law as articulated in the chapter (I.2) on the certainty of the moral sciences, the idea remained programmatic and no longer determined the organization of the book. As the methodological discussions in the Dissertatio de statu hominum naturali (Dissertation on the Natural State of Men) of 1675 and the Eris Scandica (Nordic Strife) of 1686 reveal, the model of demonstration was no longer seen in Euclidean geometry but in contemporary natural science and its method of resolution and composition that combined empirical and deductive procedures.29 Like Hobbes in the preface of De cive, Pufendorf demands in the De statu that the state be considered like a body and explained by a hypothetical reduction to “prime matter,” i.e., the condition of man outside of any society and devoid of arts and institutions, so that the nature, necessity, and advantage of civil society might be understood in terms of this “matter.”30 Accordingly, the doctrine of the natural state that only played a marginal role in the Elements gained a prominent place in De jure naturae et gentium.31 The resolutive-compositive method shows us the “state of single individuals left alone by themselves” [status naturalis in se] as a counterfactual supposition [fictio contrarii] that demonstrates the necessity of social life and introduces “sociality” [socialitas] as the fundamentum of natural law.32 In contrast to the plurality of principles discussed in the second book of the Elements, sociality figures as the unique principle of natural law in De jure naturae et gentium, a principle that “is not only genuine and clear, but also . . . sufficient and adequate [so] that there is no precept of the natural law affecting other men, the basis of which is not ultimately to be sought therein.”33 Although based on experience, it has methodological status as “principle” [principium], for while it corresponds to the hypotheses that the natural sciences gain from experience, once established it serves as the deductive basis for scientific theorems.34 Accordingly, experience that already played a major role in the Elements’ observations as foundation for that work’s anthropology now gained preeminent importance. This is shown in the vast number of citations from manifold sources (ancient and contemporary philosophy, historiography and literature, legal texts, contemporary books of travel) that supplement the systematic approach to natural law by giving examples of concrete moral, legal, and social relations from different times and cultures.

In spite of the different methodological approach, the De jure naturae et gentium retains the essential features of the natural law theory already present in the Elements: the program of a scientific approach to natural law, a theory of the moral world grounded in a voluntarist concept of law, a concept of sociality as a basic obligation of natural law imposed by God and suited to human nature in all its rational and sensory aspects, natural equality as a basic feature of sociality leading to a contractual foundation of human society and the state,35 and a contract-based and secular concept of sovereignty as a guarantor of order in a diffracted and confessionalized society.36 Because the Elements lacks the copious citations of the mature work but treats matters in more detail than the textbook, the De officio, it offers a compact and readable introduction to Pufendorf’s legal and political thought.

[1. ] For further details and references, see Thomas Behme, Samuel von Pufendorf, Naturrecht und Staat: Eine Analyse und Interpretation seiner Theorie, ihrer Grundlagen und Probleme (Göttingen: Vandenhoeck und Ruprecht, 1995), 183ff.

[2. ] Aristotle, Metaphysics VI.1 (1026a18–19). See Aristotle, The Metaphysics, trans. Hugh Tredennick (Cambridge, Mass.: Harvard University Press, 1933; repr. 1980).

[3. ] See the preface, note 4.

[4. ] Ibid., note 5.

[5. ] See ibid., note 7, for the structure of the Analysis Aristotelica.

[6. ] Ibid., pp. 9–10.

[7. ]De jure naturae et gentium libri octo, translated by C. H. and W. A. Oldfather, Carnegie Institution Classics of International Law 17 (Oxford: Clarendon Press, 1934) hereafter JNG; 1, 1, §3.

[8. ] Def. 3, §1.

[9. ] Def. 4, §1.

[10. ]JNG, 1, 1, §14.

[11. ] Def. 1, §8; JNG, 1, 1, §6.

[12. ] Def. 13; JNG, 1, 6, §4.

[13. ] Def. 12.

[14. ] Def. 8.

[15. ] Def. 7.

[16. ] Def. 13, §14; JNG, 2, 3, §§5, 19.

[17. ]JNG, 2, 3, §14; 19–20; Eris Scandica und andere polemische Schriften über das Naturrecht, ed. Fiammetta Palladini, in Gesammelte Werke, vol. 5, ed. Wilhelm Schmidt-Biggemann (Berlin: Akademie Verlag, 2002) (hereafter cited as Eris), “Specimen controversiarum . . .,” c. V, §30, p. 186.

[18. ] Axiom 1: “Any action whatsoever that may be directed according to a moral norm, which is within a man’s power to do or not to do, may be imputed to him,” p. 283.

[19. ] Axiom 2: “Any person whatsoever can effectively, or with the obligation to perform them, enjoin on someone subject to himself those things to which his authority over the other extends itself,” p. 295.

[20. ] Axiom 1, §1, p. 284.

[21. ] Preface, p. 7.

[22. ] Thomas Hobbes, De cive, vol. 2 of Opera philosophica quae Latine scripsit omnia, ed. William Molesworth (London, 1839; repr. Aalen: Scientia, 1961), chap. 14, §§4–5.

[23. ] For the details, see the editorial annotations throughout.

[24. ] See Detlef Döring’s introduction to his edition of the “Gundaeus baubator Danicus sive Examen nugarum atque calumniarum quas Senator Regni Daniae Gundaeus Rosenkrantz in discursu De detentione legati Suedici Hafniae impudentissimi spargit” (Amsterdam, 1659), an anti-Danish pamphlet of Pufendorf dealing with the juridical aspects of that incident and answering to the legal opinion of a Danish councillor. Samuel v. Pufendorf, Kleine Vorträge und Schriften. Texte zu Geschichte, Pädagogik, Philosophie, Kirche und Völkerrecht, ed. Detlef Döring (Frankfurt am Main: V. Klostermann, 1995), 88–124; Ditlev Tamm, “Pufendorf und Dänemark,” in Samuel v. Pufendorf 1632–1982, ed. Kjell Å. Modéer, Ett rättshistoriskt symposion i Lund 15–16 januari 1982 (Stockholm: Nordiska Bokhandolen i Distributien, 1986), 81–90.

[25. ] Def. 18, §2 (p. 249).

[26. ] Although the first edition of De jure naturae et gentium was published in 1672 in London, its manuscript had already been finished in 1669. See Pufendorf’s letter to Johann Scheffer of December 18, 1669, in Samuel Pufendorf, Briefwechsel, ed. Detlev Döring, in Gesammelte Werke (Berlin: Akademie Verlag, 1996), 1:60–61.

[27. ]JNG, 1, 8, §1.

[28. ] See Leibniz, Nouveaux essais sur l’entendement humain, ed. André Robinet and Heinrich Schepers, in Sämtliche Schriften und Briefe, 2nd ed. (Berlin: Akademie Verlag, 1990), series VI, vol. 6, bk. IV, chap. 3, §19. For a more detailed discussion of the appendix and its authorship, see Thomas Behme’s introduction to Samuel Pufendorf, Elementa jurisprudentiae universalis, in Gesammelte Werke (Berlin: Akademie Verlag, 1999), 3:xviii–xix.

[29. ] See Wolfgang Röd, Geometrischer Geist und Naturrecht: Methodengeschichtliche Untersuchungen zur Staatsphilosophie im 17. und 18. Jahrhundert (Munich: Bayerische Akademie der Wissenschaften, 1970), 10ff, 88–89; Gerhard Sprenger, “Der Einfluß der Naturwissenschaften auf das Denken Samuel Pufendorfs,” in Samuel Pufendorf und seine Wirkungen bis auf die heutige Zeit, ed. Bodo Geyer and Helmut Goerlich (Baden-Baden: Nomos, 1996), 165ff, especially 185–86; Hans Welzel, Naturrecht und materiale Gerechtigkeit (Göttingen: Vandenhoeck und Ruprecht, 1980), 112–13.

[30. ]Samuel Pufendorf’s “On the Natural State of Men,” trans. Michael Seidler, Studies in the History of Philosophy 13 (Lewiston, N.Y.: Edwin Mellen, 1990) (hereafter cited as Statu), §1.

[31. ]JNG, 2, 2.

[32. ] On the “state of single individuals left alone by themselves,” see JNG, 2, 2, §2; Samuel Pufendorf, The Whole Duty of Man, According to the Law of Nature, trans. Andrew Tooke, 1691, ed. Ian Hunter and David Saunders (Indianapolis: Liberty Fund, 2003) (hereafter cited as Off.), 2, 1, §4; Statu, §§4–5; on its function as a counterfactual supposition see Eris, “Commentatio super invenusto Pullo,” 280–81.

[33. ]JNG, 2, 3, §19. Nevertheless Axiom 1 and the doctrine of imputation discussed in the scholion to it have also been retained in De jure naturae et gentium. See 1, 5, especially §5.

[34. ]Eris, 280–81.

[35. ] On Pufendorf’s contractualism see the details in Behme, Samuel von Pufendorf, parts VIII and IX.

[36. ] On the desacralization of political authority and the definition of a distinctive sphere of politics as a main aspect of Pufendorf’s doctrine of sovereignty, see in particular Leonard Krieger, The Politics of Discretion: Pufendorf and the Acceptance of Natural Law (Chicago: University of Chicago Press, 1965), 104, 117; Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001), 148ff.