Liberty Matters

No Misgivings at All

As a dyed-in-the-wool, rather old-fashioned empiric, not least in matters of scholarship, I am quite titillated by all the fancy labels Michael Zuckert has found it necessary to apply to me. And all because he wants to see some connection between my interpretation of Pufendorf and my attempt at the end of my essay to adopt a certain humility and distance to my own craft. To begin with the latter, it seems to be a simple matter of honesty, especially in a discussion forum such as our present one, to signal one’s awareness of the sheer complexity of the work we are discussing and to invite criticism by showing a relaxed attitude to one’s own propositions. This has nothing to do with anti-foundationalism, and I am as puzzled as amused that Michael finds it useful to invoke these bogeymen of yesteryear’s cultural studies. A few textual facts would be more welcome, and my opening suggestion of an “impossible” way of reading Pufendorf’s idea of sociality was of course meant as an encouragement – a challenge, if you like – for us to search the text.
Let me mention a few basics that Pufendorf lays down early in his main work and which anyone reading him has to deal with, somehow. The references are to the book, chapter and section of The Law of Nature and Nations, since these are the same in the Latin original and the English translations. Let us begin with the beginning, the unborn child:
Since then the very being a Man is a State obliging to certain Duties, and giving a Title to certain Rights, it cannot be out of the Way to consider the precise Point of Time at which particular Persons may be said to enter on such a State: And this we conceive ought to be fix’d on the very first Moment when any one may be truly call’d a Man, though he as yet want those Perfections which will follow his Nature[22] in a longer Course: That is, whensoever he begins to enjoy Life and Sense, though his Mother hath not yet delivered him into the World. Now because the Obligations cannot be fulfilled by him, without he understand his own Nature[23] and the Ways of working, they for that Reason do not actually exert their Force, ’till he is able to square his Actions by some Rule, and to distinguish them by their proper Differences. But the Rights, on the contrary, date their Validity from the very Beginning of our Being, in as much as they engage other Persons, already arrived at the full Use of Reason, to such and such Performances towards us, and may turn to our Benefit, even whilst we are incapable of apprehending the Favour. Hence, it being a general Right and Privilege of all Men not to be hurt by others, if the Body of a Fætus in the Womb should suffer any unlawful Violence, the Injury is not only done to the Parents, but to the Child; who, we suppose, may in his own Name demand Justice on that score, when he is grown up to a Knowledge of the Action. But before the imperfect Materials have acquired an human Form in the Womb, if any one should dissipate or destroy them, he cannot properly be termed injurious with regard to that senseless Mass; though he hath indeed broken the Law of Nature, by intercepting a Member of human Society, and hath done an Injury to the Commonwealth [lit. “human society”], and to the Parents, by depriving them of their promis’d Citizen and Off-spring. (I.1.7).
The very condition of being a human (homo) is a moral status imposed upon the natural individual by God, but what this means, the content of it, is entirely a matter of action by other people and, eventually, of the individual in question.[24] However, the only way in which this can be the case is through obeying the law of nature; the recognition of rights and duties is a matter of applying the law. It would therefore be rather awkward if that law presupposed the quality of being human, let alone being a sociable human. In fact, Pufendorf is very explicit about this on various occasions, such as his harsh criticism of Grotius for suggesting (as the German thinker saw it) that actions can be good or bad inherently and therefore independent of divine will in the form of natural law, something that would imply a common morality between God and humanity, which was everything that Pufendorf wanted to avoid (as also Ian stresses):
Thus … he [Grotius] alledges for a Proof of the Independency of some of Nature’s Laws, the necessary Agreement and Disagreement of Things to rational and social Nature. But Man obtain’d a social Nature from the good Pleasure of God Almighty, not from immutable Necessity; and consequently the Morality of Actions, agreeable or disagreeable to him, as a social Creature, must be deriv’d from the same Original and Spring; and must be attributed to Man, not by an absolute, but by an hypothetical Necessity; or upon Supposal of that Condition which God was pleas’d freely to bestow on Mankind, above the Privileges of the inferior Creation. (I.2.6).[25]
The ascription of rights to the unborn is just one of a myriad of examples of how Pufendorf sees humanity as giving content to the sociality prescribed by God.
But I am nearly forgetting that Michael does include at least one textual fact in his parade of names, namely, the excellent quotation from the Preface to the second edition of The Law of Nature and Nations: “I have posited the sociality of man as the foundation of universal natural law.…” The italics are Michael’s enrichment of the text, and they are indeed telling, though what they tell only becomes clear if we continue the quotation for another couple of lines: “…because I could discover no other principle which all men could at the recommendation of their mortal condition itself be brought to admit, whatever conviction they ultimately had about the divine.”[26] Pufendorf’s point is an epistemic and rhetorical one, not an ontological one; the necessity for sociality is the insight that humanity in general must come to when they recognize their basic mortal condition. And it is Pufendorf’s extensive appeal to this “recommendation” that makes socialitas into the “foundation of universal natural law.” This is the argumentative stance I referred to in my opening essay when I suggested that Pufendorf does not provide a foundation in the sense of an inference from things such as natural sociability; he tries to influence people’s motivation, their will, through the appeal to common experiences (of many sorts). The natural goods and ills of mortal life do not imply a social life, but they may certainly motivate it. The post-postmodern cartoons of nonfoundationalism are not particularly helpful for an understanding of this way of thinking, nor did I suggest it. We may see this from a different perspective.
In my first essay I suggested briefly at the end that Pufendorf practiced a form of eclecticism, a point developed with clarity by Ian and interestingly picked up by Aaron. In Pufendorf’s case this meant, among other things, combining materials of widely different nature, as also stressed by Ian. Not only did Pufendorf write in different genres in different works, but he combined moral philosophy, legal theory, legal history, political history, anthropology (to use an anachronistic term), textual criticism, etc. In moral philosophy, he retained elements of the deductive formalistic approach of his early work, as I pointed out. I have no doubt that Pufendorf thought that he was right – telling the truth, Michael – in each of these various endeavours. But it seems somewhat fantastical to think of this construction as a theory about which one could say that it is true or false. It was in this spirit that I called it a rhetorical intervention in a particular political situation (a situation delineated by Ian here and explained at length elsewhere),[27] but of course good rhetoric includes good arguments – empirical, logical, theoretical, historical, aesthetic, moral.
As a further development of Ian’s discussion of the complexity of seeing Pufendorf in the role of philosopher, it may be useful here to remind ourselves that the idea of systematic coherence as the hallmark of a philosophical theory (“real philosophy”) was probably only developed more than a generation after Pufendorf’s time. As Leo Catana has argued, it was only with the great historian of philosophy Jacob Brucker (1697-1770) and his generation that this idea emerged as the (to us perhaps paradoxical) consequence of eclecticism: to be a true eclectic came to mean being a systematic eclectic.[28] That was not the kind of theorist that Pufendorf had any idea of being, and for that reason the question of consistency does not arise for his overall intellectual enterprise. That, however, does not mean a free-for-all in the interpretation of his works. Commentators, such as us, have the task of weighing what is more and what is less central in an intellectual complex such as Pufendorf’s, and my opening suggestion was that the common way in which natural sociability has been invoked as the foundation for natural law is impossible.[29] On this it would seem that Aaron and I agree.
Also on another point we may be closer than originally appeared – thanks to Aaron’s modulation of the idea of a “science of human nature” that he first introduced. I think I may be excused for having understood Aaron to use the phrase in the sense it had in the Enlightenment,[30] since that is the way in which it has commonly been used in these discussions, and since he did not suggest anything else. At any rate, with his very helpful clarification of the conceptual plurality of “science,” it becomes uncontroversial between us to reject this anachronistic idea of a science of human nature as relevant to Pufendorf. However, Aaron’s pluralization of science also disposes of his own criticism of Ian and me for seeming
to have a much more unified and higher bar … of what a moral science is than I [Aaron] do. I view it as a general and not-always-acted-upon commitment to the idea that we can have certain knowledge of some moral laws, precepts rules, etc. from which we can demonstrate others.
But the “bar” that I (and I believe Ian) referred to was the one laid down and applied by Pufendorf himself in his first work and announced but only very selectively adhered to in his main work and hardly anywhere else. That there were looser concepts of scientia in the general meaning of organized knowledge goes without saying, though I am glad that Aaron did say it. But in order for that to be interesting, i.e., have explanatory value, it would have to be articulated with sufficient clarity and specificity to avoid the looming argumentative circle: that Pufendorf’s practice is what defines the idea of scientia that he practices. One might begin to approach the problem by setting out the differences between the above-mentioned slightly later concept of “system” and the variety of 17th-century notions of scientia that Aaron lists.
Finally, to end where we began: Michael’s misgivings. I think the interpretation sketched in the opening essay and further explained in the subsequent comments is worth entertaining because there is a heap of textual and contextual evidence to support it and give it meaning. I recommend it. However, I have my own treasure trove of difficulties; they may be dwindling, but enough remain to keep my mind open – and that without misgivings. I recommend that too.
[22.] In Pufendorf’s Latin text there is no mention of human nature in this place, only of the time it takes to develop.
[23.] The original says only “requires understanding,” nothing about “own Nature.”
[24.] The point was nicely picked up by Laurence Sterne, with due acknowledgement: “[the] homunculus … has all the claims and rights of humanity, which Tully, Puffendorf, or the best ethic writers allow to arise out of that state and relation,” Tristram Shandy, book I, ch. 2.
[25.] As Ian suggested, there is good reason to be skeptical of Michael’s view of Pufendorf as a synthesis of Grotius and Hobbes.
[26.] The Political Writings of Samuel Pufendorf, ed. Craig Carr, trans. Michael Seidler (Oxford and New York: Oxford University Press, 1994).
[27.] See first of all his Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001).
[28.] Leo Catana, The Historiographical Concept “System of Philosophy”: Its Origin, Nature, Influence and Legitimacy (Leiden, Boston: Brill, 2008). The main work on eclecticism is Michael Albrecht, Eklektik. Eine Begriffsgeschichte mit Hinweisen auf die Philosophie- und Wissenschaftsgeschichte (Stuttgart-Bad Cannstatt: frommoann-holzboog, 1994), but see also Martin Mulsow, Enlightenment Underground: Radical Germany 1680-1720 (Charlottesville, VA: University of Virginia Press, 2015), ch. 8.
[29.] A matter on which I speak with the experience of having tried it and failed.
[30.] And also I have learned to use this as nothing more than a period concept.