to God; _i.e._, they possess religion. In man, natural and animal religion
are completed by rational religion, the limitations of which render a
revelation necessary. A religion can be considered divine only when it is
adapted to all, when it gains acceptance through miracles and virtue, and
when it contradicts neither natural ethics nor the reason. Religion is
union with God through knowledge, purity of will, and love. It is inborn,
a law of nature, not, as Machiavelli teaches, a political invention.
Campanella desired to see the unity in the divine government of the world
embodied in a pyramid of states with the papacy at the apex: above the
individual states was to come the province, then the kingdom, the empire,
the (Spanish) world-monarchy, and, finally, the universal dominion of the
Pope. The Church should be superior to the State, the vicegerent of God to
temporal rulers and to councils.
%4. Philosophy of the State and of Law%.
The originality of the modern doctrines of natural law was formerly
overestimated, as it was not known to how considerable an extent the way
had been prepared for them by the mediaeval philosophy of the state and of
law. It is evident from the equally rich and careful investigations of Otto
Gierke[1] that in the political and legal theories of a Bodin, a Grotius,
a Hobbes, a Rousseau, we have systematic developments of principles long
extant, rather than new principles produced with entire spontaneity. Their
merit consists in the principiant expression and accentuation and the
systematic development of ideas which the Middle Ages had produced, and
which in part belong to the common stock of Scholastic science, in part
constitute the weapons of attack for bold innovators.
Marsilius of Padua
(_Defensor Pacis_, 1325), Occam (died 1347), Gerson (about 1400), and the
Cusan[2] _(Concordantia Catholica_, 1433) especially, are now seen in a
different light. "Under the husk of the mediaeval system there is revealed
a continuously growing antique-modern kernel, which draws all the living
constituents out of the husk, and finally bursts it"
(Gierke, _Deutsches
Genossenschaftsrecht_, vol. iii. p. 312). Without going beyond the
boundaries of the theocratico-organic view of the state prevalent in
the Middle Ages, most of the conceptions whose full development was
accomplished by the natural law of modern times were already employed in
the Scholastic period. Here we already find the idea of a transition on the
part of man from a pre-political natural state of freedom and equality into
the state of citizenship; the idea of the origin of the state by a contract
(social and of submission); of the sovereignty of the ruler (_rex major
populo; plenitudo potestatis_), and of popular sovereignty[3] (_populus
major principe_); of the original and inalienable prerogatives of the
generality, and the innate and indestructible right of the individual to
freedom; the thought that the sovereign power is superior to positive
law _(princeps legibus solutus_), but subordinate to natural law; even
tendencies toward the division of powers (legislative and executive),
and the representative system. These are germs which, at the fall of
Scholasticism and the ecclesiastical reformation, gain light and air for
free development.
[Footnote 1: Gierke, _Johannes Althusius und die Entwickelung der
naturrechtlichen Staatstheorien_, Breslau, 1880; the same, _Deutsches
Genossenschaftsrecht_, vol. iii. § II, Berlin, 1881. Cf.
further, Sigm.
Riezler, _Die literarischen Widersacher der Päpste_, Leipsic, 1874; A.
Franck, _Réformateurs et Publicistes de L'Europe_, Paris, 1864.]
[Footnote 2: Nicolas' political ideas are discussed by T. Stumpf, Cologne,
1865.]
[Footnote 3: Cf. F. von Bezold, _Die Lehre von der Volkssouveränität im
Mittelalter_, (Sybel's _Historische Zeitschrift_, vol.
xxxvi., 1876).]
The modern theory of natural law, of which Grotius was the most influential
representative, began with Bodin and Althusius. The former conceives
the contract by which the state is founded as an act of unconditional
submission on the part of the community to the ruler, the latter conceives
it merely as the issue of a (revocable) commission: in the view of the one,
the sovereignty of the people is entirely alienated,
"transferred," in that
of the other, administrative authority alone is granted,
"conceded," while
the sovereign prerogatives remain with the people. Bodin is the founder
of the theory of absolutism, to which Grotius and the school of Pufendorf
adhere, though in a more moderate form, and which Hobbes develops to the
last extreme. Althusius, on the other hand, by his systematic development
of the doctrine of social contract and the inalienable sovereignty of the
people, became the forerunner of Locke[1] and Rousseau.
[Footnote 1: Ulrich Huber (1674) may be called the first representative
of constitutionalism, and so the intermediate link between Althusius and
Locke. Cf. Gierke, _Althusius_, p. 290.]
The first independent political philosopher of the modern period was
Nicolo Machiavelli of Florence (1469-1527). Patriotism was the soul of his
thinking, questions of practical politics its subject, and historical fact
its basis.[1] He is entirely unscholastic and unecclesiastical. The power
and independence of the nation are for him of supreme importance, and the
greatness and unity of Italy, the goal of his political system. He
opposes the Church, the ecclesiastical state, and the papacy as the chief
hindrances to the attainment of these ends, and considers the means by
which help may be given to the Fatherland. In normal circumstances a
republican constitution, under which Sparta, Rome, and Venice have achieved
greatness, would be the best. But amid the corruption of the times, the
only hope of deliverance is from the absolute rule of a strong prince,
one not to be frightened back from severity and force.
Should the ruler
endeavor to keep within the bounds of morality, he would inevitably be
ruined amid the general wickedness. Let him make himself liked, especially
make himself feared, by the people; let him be fox and lion together; let
him take care, when he must have recourse to bad means for the sake of the
Fatherland, that they are justified by the result, and still to preserve
the appearance of loyalty and honor when he is forced to act in their
despite--for the populace always judges by appearance and by results. The
worst thing of all is half-way measures, courses intermediate between good
and evil and vacillating between reason and force. Even Moses had to kill
the envious refractories, while Savonarola, the unarmed prophet, was
destroyed. God is the friend of the strong, energy the chief virtue; and
it is well when, as was the case with the ancient Romans, religion is
associated with it without paralyzing it. The current view of Christianity
as a religion of humility and sloth, which preaches only the courage
of endurance and makes its followers indifferent to worldly honor,
is unfavorable to the development of political vigor.
The Italians have
been made irreligious by the Church and the priesthood; the nearer Rome,
the less pious the people. When Machiavelli, in his proposals looking
toward Lorenzo (II.) dei Medici (died 1519), approves any means for
restoring order, it must be remembered that he has an exceptional case
in mind, that he does not consider deceit and severity just, but only
unavoidable amid the anarchy and corruption of the time.
But neither the
loftiness of the end by which he is inspired, nor the low condition of
moral views in his time, justifies his treatment of the laws as mere means
to political ends, and his unscrupulous subordination of morality to
calculating prudence. Machiavelli's general view of the world and of life
is by no means a comforting one. Men are simple, governed by their passions
and by insatiable desires, dissatisfied with what they have, and inclined
to evil. They do good only of necessity; it is hunger which makes them
industrious and laws that render them good. Everything rapidly degenerates:
power produces quiet, quiet, idleness, then disorder, and, finally, ruin,
until men learn by misfortune, and so order and power again arise. History
is a continual rising and falling, a circle of order and disorder.
Governmental forms, even, enjoy no stability; monarchy, when it has run out
into tyranny, is followed by aristocracy, which gradually passes over into
oligarchy; this in turn is replaced by democracy, until, finally, anarchy
becomes unendurable, and a prince again attains power.
No state, however,
is so powerful as to escape succumbing to a rival before it completes the
circuit. Protection against the corruption of the state is possible only
through the maintenance of its principles, and its restoration only by a
return to the healthy source whence it originated. This is secured either
by some external peril compelling to reflection, or internally, by wise
thought, by good laws (framed in accordance with the general welfare, and
not according to the ambition of a minority), and by the example of good
men.
[Footnote 1: In his _Essays on the First Decade of Livy (Discorsi)_,
Machiavelli investigates the conditions and the laws of the maintenance of
states; while in _The Prince (II Principe_, 1515), he gives the principles
for the restoration of a ruined state. Besides these he wrote a history
of Florence, and a work on the art of war, in which he recommended the
establishment of national armies.]
In the interval between Machiavelli and the system of natural law of
Grotius, the Netherlander (1625: _De Jure Belli et Pacis_), belong the
socialistic ideal state of the Englishman, Thomas More (_De Optimo
Reipublicae Statu deque Nova Insula Utopia_, 1516), the political theory of
the Frenchman, Jean Bodin (_Six Livres de la République_, 1577, Latin 1584;
also a philosophico-historical treatise, _Methodus ad Facilem Historiarum
Cognitionem_, and the _Colloquium Heptaplomeres_, edited by Noack, 1857),
and the law of war of the Italian, Albericus Gentilis, at his death
professor in Oxford (_De Jure Belli_, 1588). Common to these three was
the advocacy of religious tolerance, from which atheists alone were to
be excepted; common, also, their ethical standpoint in opposition to
Machiavelli, while they are at one with him in regard to the liberation of
political and legal science from theology and the Church. With Gentilis
(1551-1611) this separation assigns the first five commandments to divine,
and the remainder to human law, the latter being based on the laws of human
nature (especially the social impulse). In place of this derivation of law
and the state from the nature of man, Jean Bodin (1530-96) insists on an
historical interpretation; endeavors, though not always with success, to
give sharp definitions of political concepts;[1] rejects composite
state forms, and among the three pure forms, monarchy, aristocracy, and
democracy, rates (hereditary) monarchy the highest, in which the subjects
obey the laws of the monarch, and the latter the laws of God or of nature
by respecting the freedom and the property of the citizens. So far, no
one has correctly distinguished between forms of the state and modes of
administration. Even a democratic state may be governed in a monarchical
or aristocratic way. So far, also, there has been a failure to take into
account national peculiarities and differences of situation, conditions to
which legislation must be adjusted. The people of the temperate zone are
inferior to those of the North in physical power and inferior to those of
the South in speculative ability, but superior to both in political gifts
and in the sense of justice. The nations of the North are guided by
force, those of the South by religion, those between the two by reason.
Mountaineers love freedom. A fruitful soil enervates men, when less
fertile, it renders them temperate and industrious.
[Footnote 1: What is the state? What is sovereignty? The former is defined
as the rational and supremely empowered control over a number of families
and of whatever is common to them; the latter is absolute and continuous
authority over the state, with the right of imposing laws without being
bound by them. The prince, to whom the sovereignty has been unconditionally
relinquished by the people in the contract of submission, is accountable to
God alone.]
Attention has only recently been called (by O. Gierke, in the work already
mentioned, Heft vii. of his _Untersuchungen zur deutschen Staats- und
Rechtsgeschichte_, Breslau, 1880) to the Westphalian, Johannes Althusius
(Althusen or Althaus) as a legal philosopher worthy of notice. He was born,
1557, in the Grafschaft Witgenstein; was a teacher of law in Herborn and
Siegen from 1586, and Syndic in Emden from 1604 to his death in 1638. His
chief legal work was the _Dicaeologica_, 1617 (a recasting of a treatise
on Roman law which appeared in 1586), and his chief political work the
_Politica_, 1603 (altered and enlarged 1610, and reprinted, in addition,
three times before his death and thrice subsequently).
Down to the
beginning of the eighteenth century he was esteemed or opposed as chief
among the _Monarchomachi_, so called by the Scotchman, Barclay (_De Regno
et Regali Potestate_, 1600); since that time he has fallen into undeserved
oblivion. The sovereign power (_majestas_) of the people is untransferable
and indivisible, the authority vested in the chosen wielder of the
administrative power is revocable, and the king is merely the chief
functionary; individuals are subjects, it is true, but the community
retains its sovereignty and has its rights represented over against the
chief magistrate by a college of ephors. If the prince violates the
compact, the ephors are authorized and bound to depose the tyrant, and to
banish or execute him. There is but one normal state-form; monarchy and
polyarchy are mere differences in administrative forms.
Mention should
finally be made of his valuation of the social groups which mediate between
the individual and the state: the body politic is based on the narrower
associations of the family, the corporation, the commune, and the province.
While with Bodin the historical, and with Gentilis the _a priori_ method of
treatment predominates, Hugo Grotius[1] combines both standpoints. He bases
his system on the traditional distinction of two kinds of law. The origin
of positive law is historical, by voluntary enactment; natural law is
rooted in the nature of man, is eternal, unchangeable, and everywhere the
same. He begins by distinguishing with Gentilis the _jus humanum_ from the
_jus divinum_ given in the Scriptures. The former determines, on the one
hand, the legal relations of individuals, and, on the other, those of whole
nations; it is _jus personale_ and _jus gentium_.[2]
[Footnote 1: Hugo de Groot lived 1583-1645. He was born in Delft, became
Fiscal of Holland in 1607, and Syndic of Rotterdam and member of the States
General in 1613. A leader of the aristocratic party with Oldenbarneveld, he
adhered to the Arminians or Remonstrants, was thrown into prison, freed in
1621 through the address of his wife, and fled to Paris, where he lived
till 1631 as a private scholar, and, from 1635, as Swedish ambassador. Here
he composed his epoch-making work, _De Jure Belli et Pacis_, 1625. Previous
to this had appeared his treatise, _De Veritate Religionis Christianae_,
1619, and the _Mare Liberum_, 1609, the latter a chapter from his maiden
work, _De Jure Praedae_, which was not printed until 1868.]
[Footnote 2: The meaning which Grotius here gives to _jus gentium_
(=international law), departs from the customary usage of the Scholastics,
with whom it denotes the law uniformly acknowledged among all nations.
Thomas Aquinas understands by it, in distinction to _jus naturale_ proper,
the sum of the conclusions deduced from this as a result of the development
of human culture and its departure from primitive purity. Cf. Gierke,
_Althusius_, p. 273; _Deutsches Genossenschaftsrecht_, vol. iii. p. 612.
On the meaning of natural law cf. Gierke's Inaugural Address as Rector at
Breslau, _Naturrecht und Deutsches Recht_, Frankfort-on-the-Main, 1883.]
The distinction between natural and conventional law which has been already
mentioned, finds place within both: the positive law of persons is called
_jus civile_, and the positive law of nations, _jus gentium voluntarium_.
Positive law has its origin in regard for utility, while unwritten law
finds its source neither in this nor (directly) in the will of God,[1] but
in the rational nature of man. Man is by nature social, and, as a rational
being, possesses the impulse toward ordered association.
Unlawful means
whatever renders such association of rational beings impossible, as the
violation of promises or the taking away and retention of the property
of others. In the (pre-social) state of nature, all belonged to all, but
through the act of taking possession _(occupatio)_
property arises (sea and
air are excluded from appropriation). In the state of nature everyone has
the right to defend himself against attack and to revenge himself on the
evil-doer; but in the political community, founded by contract, personal
revenge is replaced by punishment decreed by the civil power. The aim of
punishment is not retribution, but reformation and deterrence. It belongs
to God alone to punish because of sin committed, the state can punish only
to prevent it. (The antithesis _quia peccatum est_--_ne peccetur_ comes
from Seneca.)
[Footnote 1: Natural law would be valid even if there were no God. With
these words the alliance between the modern and the mediaeval philosophy of
law is severed.]
This energetic revival of the distinction already common in the Middle Ages
between "positive and natural," which Lord Herbert of Cherbury brought
forward at the same period (1624) in the philosophy of religion, gave the
catchword for a movement in practical philosophy whose developments extend
into the nineteenth century. Not only the illumination period, but all
modern philosophy down to Kant and Fichte, is under the ban of the
antithesis, natural and artificial. In all fields, in ethics as well as in
noëtics, men return to the primitive or storm back to it, in the hope of
finding there the source of all truth and the cure for all evils. Sometimes
it is called nature, sometimes reason (natural law and rational law are
synonymous, as also natural religion and the religion of the reason), by
which is understood that which is permanent and everywhere the same in
contrast to the temporary and the changeable, that which is innate in
contrast to that which has been developed, in contrast, further, to that
which has been revealed. Whatever passes as law in all places and at all
times is natural law, says Grotius; that which all men believe forms the
content of natural religion, says Lord Herbert. Before long it comes to
be said: that _alone_ is genuine, true, healthy, and valuable which has
eternal and universal validity; all else is not only superfluous and
valueless but of evil, for it must be unnatural and corrupt. This step is
taken by Deism, with the principle that whatever is not natural or rational
in the sense indicated is unnatural and irrational.
Parallel phenomena are
not wanting, further, in the philosophy of law (Gierke, _Althusius_). But
these errors must not be too harshly judged. The confidence with which they
were made sprang from the real and the historical force of their underlying
idea.
As already stated, the "natural" forms the antithesis to the supernatural,
on the one hand, and to the historical, on the other.
This combination of
the revealed and the historical will not appear strange, if we remember
that the mediaeval view of the world under criticism was, as Christian,
historico-religious, and, moreover, that for the philosophy of religion the
two in fact coincide, inasmuch as revelation is conceived as an historical
event, and the historical religions assume the character of revealed. The
term arbitrary, applied to both in common, was questionable, however: as
revelation is a divine decree, so historical institutions are the products
of human enactment, the state, the result of a contract, dogmas, inventions
of the priesthood, _the results of development, artificial constructions_!
It took long ages for man to free himself from the idea of the artificial
and conventional in his view of history. Hegel was the first to gather
the fruit whose seeds had been sown by Leibnitz, Lessing, Herder, and the
historical school of law. As often, however, as an attempt was made from
this standpoint of origins to show laws in the course of history, only one
could be reached, a law of necessary degeneration, interrupted at times
by sudden restorations--thus the Deists, thus Machiavelli and Rousseau.
Everything degenerates, science itself only contributes to the
fall--therefore, back to the happy beginnings of things!
If, finally, we inquire into the position of the Church in regard to the
questions of legal philosophy, we may say that, among the Protestants,
Luther, appealing to the Scripture text, declares rulers ordained by God
and sacred, though at the same time he considers law and politics but
remotely related to the inner man; that Melancthon, in his _Elements of
Ethics_ (1538), as in all his philosophical text-books,[1] went back to
Aristotle, but found the source of natural law in the Decalogue, being
followed in this by Oldendorp (1539), Hemming (1562), and B. Winkler
(1615).[2]
[Footnote 1: The edition of Melancthon's works by Bretschneider and
Bindseil gives the ethical treatises in vol. xvi. and the other
philosophical treatises in vol. xiii. (in part also in vols. xi. and xx.).]
[Footnote 2: Cf. C.v. Kaltenborn, _Die Vorläufer des Hugo Grotius_,
Leipsic, 1848.]
On the Catholic side, the Jesuits (the Order was founded in 1534, and
confirmed in 1540), on the one hand, revived the Pelagian theory of freedom
in opposition to the Luthero-Augustinian doctrine of the servitude of the
will, and, on the other, defended the natural origin of the state in a
(revocable) contract in opposition to its divine origin asserted by the
Reformers, and the sovereignty of the people even to the sanctioning of
tyrannicide. Bellarmin (1542-1621) taught that the prince derives his
authority from the people, and as the latter have given him power, so they
retain the natural right to take it back and bestow it elsewhere. The view
of Juan Mariana (1537-1624; _De Rege_, 1599) is that, as the people in
transferring rights to the prince retain still greater power themselves,
they are entitled in given cases to call the king to account. If he
corrupts the state by evil manners, and, degenerating into the tyrant,
despises religion and the laws, he may, as a public enemy, be deprived by
anyone of his authority and his life. It is lawful to arrest tyranny in any
way, and those have always been highly esteemed who, from devotion to the
public welfare, have sought to kill the tyrant.
%5. Skepticism in France.%
Toward the end of the sixteenth century, and in the very country which was