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Philosophy of Law and Politics

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.

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