Liberty Matters

Rejoinder to My Commentators

It is a pleasure to thank the three colleagues for their contributions, supplementing and criticizing my opening essay. Thanks to David Hart’s format for these exchanges, I now have a moral entity that hovers uneasily between a perfect right and an imperfect duty to first reply. I’ll think of it as a privilege.       
Michael Zuckert is undoubtedly right that Pufendorf’s Law of Nature and Nations is unlikely to top any bestseller lists, though judging by the demand for the Pufendorf titles already available in the Liberty Fund series, the major work may yet surprise us. It is in any case encouraging that Immanuel Kant found it necessary to condemn Pufendorf’s natural law one and a quarter century after the latter published it: it can’t be all bad.
As Ian Hunter stresses, Pufendorf’s work was very much an intervention in a particular political situation, which Ian helpfully outlines. And Pufendorf’s intentions with his work as a political statement are amply documented by his correspondence and by the extensive controversies in which he engaged to defend and elaborate it during the quarter of a century that was left him. In other words, it was a practical moral-political argument and, as such, a “moral entity” by its own criteria: it was launched into the world through an act of will – Pufendorf’s – and it was meant to supervene (as he occasionally called such events) upon sundry natural entities. Most important of these were the passions – broadly conceived – of rulers and ruled in the civil societies that he addressed. So obviously the facts about human nature – natural entities – are relevant to his moral argument, as I pointed out. So far Aaron Garrett and I agree.
What we seem to disagree about is the sense in which natural facts are relevant to Pufendorf’s argument. It seems to me axiomatic, as it were, in Pufendorf’s scheme of things that all moral (including political) features of human life depend upon the activity of the will and that the will is free in a Cartesian sense. Consequently, with the launching of his mega moral entity, the Law of Nature and Nations, Pufendorf must have expected to influence his readers and listeners in some other way than that of causation: he wanted to give them a wide spectrum of reasons to draw on in the formation of their respective wills, but he does not suggest that this could be a matter of deduction. This applies equally to all areas of purported knowledge of facts – physical, mental, social, historical, religious, etc. – they cannot “found” morality.
This applies certainly to any “science of human nature.” Aaron is right to draw a distinction between such a science and a science of morality, but when it is applied to Pufendorf without some explanation of the concept of science, it becomes an Enlightenment retrodiction. Although Pufendorf was familiar with what we call the emerging modern sciences, especially in Descartes, the concept of science that dominated in his exposition was the neo-Aristotelian-Euclidean concept of “science” as a formal system of logically related concepts that he had learned from his teacher, Erhard Weigel. This is what lies behind the passage quoted by Aaron, which in fact gives evidence of the exact opposite of what he suggests:
Demonstrations therefore are here chiefly employ’d about Moral Qualities, so far as those Qualities appear for certain to agree to such Actions or Persons: When we enquire (for example) whether such an Action be just or unjust, whether such a Right, or such an Obligation, accrue to such a Person, consider’d in general, or as that personal capacity is common to others with him. [Law of Nature and Nations Book I, chap. 2, sect. 8 – not chap. 1, sect. 7, by the way.]
Pufendorf is here not talking about the human being with a certain nature, in Latin homo. He is talking about persons, in Latin personae (“… circa qualitates morales hactenus, ut eas actionibus & personis certo competere …”), and as I mentioned in my first contribution, personhood is itself a moral feature or “role” adopted by all of us in in one way or another. The point of Pufendorf’s argument in the said place is that we can have demonstrative certainty about the relations between many such moral entities – as he says, “whether such a Right, or such an Obligation, accrue to such a Person, consider’d in general.” We would call this conceptual analysis of what, say, “sovereignty,” “property,” “spouse,” “guardian,” and similar personae mean. But that is precisely not about human nature; it is about what natural humans have to lay upon themselves – by their own will or that of others – in order to become sovereigns, owners, etc. In other words, we can have a formal science of morality in this sense; this is what he meant by science properly speaking.
Such a science was largely what he had attempted in his earliest work on natural law, the Elements of Universal Jurisprudence (1660),[15] and he retained much of this in the later major work. But evidently he had come to the conclusion that knowledge of the conceptual coherences between the elements of social and civic life was far from sufficient to influence the will of people to adhere to the basic law of nature. And so in the Law of Nature and Nations we get this wide panoply of considerations that also Ian stresses. These considerations certainly include facts from human anthropology, and of course Aaron is quite right to stress the importance of this. But I am not going to buy the idea that such facts from the natural history of humanity are “obliging” in the formation of morality. That word is far too suggestive of a determining influence. Also here Aaron’s own choice of passage serves well to make my critical point, but I have to quote a little more than he does:
Nor will it be to the Purpose for any one to object, That since Men are endu’d with Reason, which is wanting in Beasts, therefore there must be a natural Difference between human and brutal Actions. For, if we consider Reason, as uninform’d with the Knowledge and Sense of Law, or of some moral Rule, it might, perhaps, even in this Condition, furnish Man with the Faculty of acting more expeditiously and more accurately than Beasts, and might assist the natural Powers by an additional Shrewdness or Subtilty. But that it should be able to discover any Morality in human Actions, without reflecting on some Law, is equally impossible, as that a Man born blind should make a Judgement on the Distinction of Colours. [Law of Nature and Nations I.2.6]
In other words, the point is that only acceptance of some “moral rule,” ultimately the law of nature, gives humanity any moral orientation, other than that we are morally as clueless as animals. So the only “obliging” that plays a role is that we are indeed humans, not animals, i.e., have a rational capacity and a free will, but what we are going to make of ourselves (and, not least, each other) is, to put it mildly, underdetermined by that human nature of ours. So while I am happy, of course, to accept Aaron’s point that the moral features (entities) of humanity are methods of social organization (“most moral modes should be viewed as organizing natural substances”), Pufendorf’s point is that no particular form of organization is fore-ordained (“obliged”) by either nature or history and that all the attempts to show otherwise have proven divisive, often disastrously so.
This applies also to what Pufendorf has to say about natural religion. Aaron is quite right that Pufendorf’s idea of the natural religion required for civic peace is not without content, though in his context it was surely very limited indeed, as I suggested. But whether broad or narrow, the remarkable thing about this natural religion is that it is part of people’s duty to themselves to accept its simple truths. That is to say, acceptance of the propositions of natural religion is one of the factors in your basic duty to form yourself into a person under natural law. Or to put it bluntly, such religion is mandated by the natural law about living sociably. It is not the case that the law of nature is somehow derived from natural religion; natural religion is a feature of what natural law requires. This relatively subsidiary role of natural religion as part of our duty to develop ourselves as moral persons was underlined by the fact that Pufendorf only was obliged to devote a separate chapter to the topic when he abbreviated the large treatise into his textbook, The Whole Duty of Man (1673).[16]
Aaron suspects that I want “to draw a line between, on the one side, science and natural religion as primarily rhetorical and, on the other side, history, social life, and morality.” No, I don’t, Aaron. Obviously Pufendorf’s use of historical and literary example, social fact, conventional morality, legal cases, and much else is as “rhetorical” as anything. It was all part and parcel of his multipronged attempt at persuasion in the absence of foundations or proofs. The whole argument is, I think, self-consciously historicizing in the use of all materials. One might ask, could he stick to his guns in different contexts? Did he? And – most dangerously – for the interpreter: Did it matter to him?
Enough for today. I look forward to more.
[15.] Samuel von Pufendorf, Two Books of the Elements of Universal Jurisprudence, translated by William Abbott Oldfather, 1931. Revised by Thomas Behme. Edited and with an Introduction by Thomas Behme (Indianapolis: Liberty Fund, 2009). </titles/2220>.
[16.] Samuel von Pufendorf, The Whole Duty of Man According to the Law of Nature, trans. Andrew Tooke, ed. Ian Hunter and David Saunders, with Two Discourses and a Commentary by Jean Barbeyrac, trans. David Saunders (Indianapolis: Liberty Fund, 2003). </titles/888>.