Liberty Matters

Response to Haakonssen


Knud Haakonssen’s Pufendorf essay captures a great deal that was central to Pufendorf’s political thought and also much of what was novel about his way of approaching the testing political, juridical, and religious circumstances that confronted him. This applies in particular to Knud’s commentary on Pufendorf’s remarkable entia moralia doctrine through which the jurisconsult and political adviser broke with so much preceding moral, political, and theological “naturalism.” Knud notes in particular Pufendorf’s rejection of Hobbes’s naturalistic derivation of sovereignty from a materialist anthropology. For this, Pufendorf substitutes the notion of man’s natural status (status naturalis) as a moral status or condition imposed on man by God. In this condition, “sociality” does not define man’s moral nature but is rather a status that he must impose on himself and from which the forms of civil government can be deduced.
A second kind of naturalism rejected by Pufendorf was that of the natural-law tradition itself. In this tradition natural law was natural in two linked senses: in being grounded in norms or goods (such as sociability) embedded in man’s nature, and in being accessed via man’s natural reason as opposed to divine revelation. Pufendorf departed from this viewpoint along two axes. First, he treated man’s natural condition (status naturalis) as something instituted by the divine will for unfathomable reasons. Second, he characterized this condition as that of a creature whose suspicious and fractious nature could not be governed by a reason whose fallen condition meant that it lacked both knowledge of divine norms and the power to steer the will. Placed in this condition by the divine will, humans had to derive norms of conduct without any access to the divine mind, hence through historical observation of what was needed for a fractious and needy creature to survive, which thus led, somewhat paradoxically, to a secular norm for natural law, Knud’s sociality.
Unlike the “rational and sociable nature” posited by scholastic natural law, Pufendorf’s sociality was not an ontological norm that connected humans to God. Rather, it was a political norm for conduct in the civil life (status civilis) into which man entered to escape his natural condition, and where he instituted new moral entities or personae—such as those of sovereign and subject—as means for the governance of conduct. By divorcing natural from divine law, and by restricting the rules of sociality to the domain of civil life, Pufendorf articulated a profound pluralization and secularization of the political and juridical arena. Pufendorf viewed this arena as governed by rules of sociality invented by man himself, and structured by a plurality of moral offices or personae—sovereign and subject, husband and wife, debtor and creditor, priest and parishioner, and so on—that man had instituted in order to achieve sociality in civil life. As Knud points out, this meant that the norms of civil life were grounded neither in religious nor philosophical (“scientific”) truth, but only in the rules that the civil sovereign enforced as laws for the restricted purpose of maintaining sociality, thereby leaving religion and philosophy (and family and economy) at liberty within their own spheres.
What was it, though, that permitted Pufendorf to undertake such a profound restructuring of the natural-law tradition and thence the architecture of civil government? I conjecture that the answer to this question lies in the specific character of the constitutional settlement through which the German Empire managed to contain and juridify religious conflict. In 1555 the Religious Peace of Augsburg ended the first wars of religion by establishing a constitution that recognized two imperial religions—Protestant and Catholic—thereby beginning the process that would separate the juridical and political arena from the domain of religious truth. Augsburg, however, established a biconfessional order only at the level of imperial public law, leaving the religiously divided states and estates free to pursue “confessionalization” within their own territories and jurisdictions, and resulting in the formation of an array of mutually hostile confessional states. In bringing the subsequent wave of religious wars to a conclusion in 1648, the Westphalian Treaty of Osnabrück modified the Augsburg settlement in two important ways: by recognizing three religions as public law bodies—Lutheranism, Calvinism, and Catholicism, and by requiring that these religions be legally recognized within the territories and jurisdictions of the imperial states and estates. Osnabrück thus issued in a double-sided religious constitution found nowhere else in Europe. On the one hand, it produced a relativistic and (in this limited sense) “secular” public-law framework that suspended all religious and metaphysical truth and was grounded only in a political compromise between two confessional blocs, the Corpus Evangelicorum and the Corpus Catholicorum. On the other hand, within this framework each of the religions was free to determine and teach its own confession as the absolute truth, within the limits imposed by constitutional pluralism.
In restricting natural-law norms to the sphere of civil sociality and separating them from the absolute truths of religion and philosophy, Pufendorf may be regarded as providing a form of natural law capable of functioning as a political philosophy for the new double-sided religious constitution. In keeping with the post-Osnabrück constitutional order, however, Pufendorf’s natural law could not itself be grounded in a true philosophy, in the manner of Thomism, Spinozism, or Hobbesianism. Instead it took the form of an erudite humanist copia. This assembled a vast array of classical, Christian, and modern authorities designed to authorize Pufendorf’s account of man in his natural and civil conditions, thence the pluralist architecture of religious and civil governance. In both its pluralist content and its humanist method Pufendorf’s natural law thus marked a crucial departure from the forms of Catholic and Protestant natural law that had dominated German universities in the period of territorial confessionalization, between the 1550s and 1650s. This scholastic style of natural law—through which theologians accessed divine law which the prince was then supposed to enact as civil law—had been suited to the theocratically oriented Augsburg polities, but would not survive Osnabrück as a basis for public law, even if it continued as academic philosophy. In Knud’s subtle formulation, Pufendorf’s natural law may thus be understood as supplying the discursive machinery required for jurists, statesmen, and theologians to “entertain” a new pluralistic constitutional order.