The Modernized Theory of Natural Law. The opening decades of the seventeenth century began a gradual process of releasing political philosophy from the association with theology which had been characteristic of its earlier history throughout the Christian era. The release which came in the seventeenth century was made possible by a gradual recession of religious controversy and by a gradual secularizing of the issues with which political theory had to deal.
It was furthered also by a secularizing of intellectual interests which was inherent in the return of scholarship to antiquity and the spread through northern Europe of the admiration for Greece and Rome already so conspicuous in the Italian scholars of Machiavelli’s generation. Stoicism, Platonism, and a modernized understanding of Aristotle brought into being a degree of naturalism and rationalism such as the study of Aristotle in the fourteenth century had not been able to produce.
Finally, an indirect effect in the same direction was produced by epoch-making progress in the mathematical and physical sciences. Social phenomena generally, and political relationships in particular, began to be conceived as natural occurrences, open to study by observation and more especially by logical analysis and deduction, in which revelation or any other supernatural element had no important place.
This tendency to set political and social theory free from theology was already perceptible in the later jesuit writers, even though their purpose was in part to support the indirect power of the papacy over secular governments. Their argument stressed the secular and human origin of government, in order that the divine right of the pope might be given a unique place in the category of authorities.
Thus the political theory and the jurisprudence of Suarez, though parts of a scholastic philosophy, could be detached from theology without suffering serious mutilation. In the Calvinist writers of the early seventeenth century a similar secularization of interest occurred, though Calvinism probably retarded rather than aided the process.
The doctrine of predestination, in its original Calvinist meaning, tied up all moral and social questions with the free grace of God and made every natural phenomenon an incident in a personal and voluntary government of the world. Whatever affinity Calvinist theology may have had with Puritan middle-class morality, it had none at all with a rational explanation of moral phenomena, but the contrary.
On the other hand, the expunging of the Canon Law from Protestant systems made necessary a more radical break with the Middle Ages than was required of the Jesuits. Suarez could produce a somewhat modernized form of medieval jurisprudence but the Calvinists, once the strict ties of Calvinism were relaxed, could more easily revert to pre-Christian conceptions of natural law. The critical event in the history of Calvinist theology, so far as political theory was concerned, was the controversy aroused by Arminius and the Remonstrants in Holland, which set Hugo Grotius free from the bondage of strict Calvinism and fortified him in the humanist tradition of Erasmus.
Althusius:-
Even before Grotius, however, the relationship of natural law to theology had begun to wear thin for some writers with Calvinist affiliations. This was notably true of Johannes Althusius, who continued and elaborated the anti-royalist theory of the French Calvinists. His book on politics was in no sense a controversial tract but, as the name signifies, a systematic treatise on all forms of human association including the state.
Like Grotius, Althusius objected to the mixture of jurisprudence and politics in Jean Bodin and therefore made a point of separating them. His separation, however, affected somewhat unfortunately his theory of politics. Though his position depended upon the conception of natural law, he never followed this to a thoroughgoing revision of its principles. Like other Calvinist writers he identified natural law with the second table of the Decalogue, but thereby he did less than justice to his own thought, because in fact his theory of society depended in no essential respect upon this implied religious authority. The truth is, as Gierke says, that Althusius was more clear than profound and devoted himself rather to formal definition than to a philosophical analysis of principles.
Within these limits he developed a political theory which was both interesting and important, because it depended logically upon the single idea of contract and owed substantially nothing to religious authority. In effect, therefore, it was a naturalistic theory, in so far as contract may be called a natural relationship. Althusius’s contract was in fact very much like the innate social propensity which had figured in Stoic theory and which played an even clearer part in the philosophy of Grotitis.
The important point was that Althusius raised it to the level of a sufficient explanation of human social groupings, thus leaving nothing to be explained by an appeal to theological sanctions. The effect was to produce a theory much closer to the actual spirit of Aristotle than the more explicitly Aristotelian theories of the scholastic.
Althusius was not very far from saying that the association of men in groups is simply a natural fact, as much an intrinsic part of human nature as anything else, and accordingly that a society wag not, in Hobbes’s phrase, an artificial body to be explained by extraneous causes. The idea of contract was not very well suited to express this thought but was quite in accord with the individualism which marked all theories of natural law, especially after the writings of Hobbes.
The contract figured in two ways in Althusius’s theory, it had a more specifically political role in explaining the relations between a ruler and his people and a general sociological role in explaining the existence of any group whatever. The first corresponded to a contract of government, the second to a social contract in a broader sense.
In the latter use a tacit agreement underlies any association a word which corresponds to Aristotle’s use of community. By this agreement persons become dwellers together (symbiotic) and sharers in the goods, services, or laws which the association creates and sustains. Any association has therefore its twofold law which defines on the one hand the kind of community existing between the members and on the other creates and limits an authority for administering its common affairs.
Althusius offers an elaborate dichotomous classification of associations, but in brief he may be said to distinguish five chief kinds, each more complex sort arising as a combination of the preceding simpler ones the family, the voluntary corporation, the local community, the province, and the state.
In the more advanced groups, the underlying associations rather than individual persons are the contracting parties, and in each case the new group assumes the regulation only of such acts as are necessary to its purposes, leaving the rest in the control of the more primitive groups. There occurs, therefore, a series of social contracts by which various social groups, some political and some not, come into being. This is the basis for Althusius’s theory of the state.
The state forms one of this series. It arises by the association of provinces or local communities and its differential, as compared with any other group, is sovereign power. Here the influence of Bodin upon Althusius was evident, as well as his purpose to avoid some of the confusions in Bodin’s theory.
The most important aspect of Althusius’s theory was that he made sovereignty reside necessarily in the people as a corporate body. They are incapable of parting with it because it is a characteristic of that specific kind of association. Consequently it is never alienated and never passes into the possession of a ruling class or family. Power is bestowed upon the administrative officers of a state by the law of the state.
This forms the second of Althusius’s two kinds of contract, an agreement by which the corporate body imparts power to its administrators to make the purposes of the corporation effective follows that this power reverts to the people if the holder of it should for any reason forfeit it. This theory was the clearest statement of popular sovereignty that had so far appeared.
It avoided the difficulties in Bodin’s theory, which had arisen because of his confusion between the sovereign and the monarch, and which had led him to describe sovereignty as at once unlimited and yet incapable of changing certain provisions of the historical constitution. It is clearer also than the account of sovereignty later given by Grotius, since it does not confuse public authority with a patrimonial power inherent in the ownership of land.
Althusius’s defense of the right to resist tyranny followed pretty closely in the track of the earlier Calvinist theories. This right does not belong to individuals but must be exercised through a special class of magistrates, called “ephors,” who are the appointed guardians of the community’s rights. The ephors correspond to the inferior magistrates of Calvin and the Vindiciae contra tyrannos.
Althusius’s theory, however, was better based, because the whole structure of his state was federal. The contracting parties which produce the state are not individuals but communities, which, though not sovereign, have the inherent capacity for giving effect to their own ends which all corporate bodies possess. It has been pointed out in a preceding chapter that an approximation to federalism occurred in the Vindiciae contra tyrannos, which, in the circumstances prevailing in France, could hardly be anything except a reversion to feudal privileges and exemptions.
The case was different in the Netherlands, where central government really was founded upon a confederation of provinces diverse in religion, language, and national sentiment. Althusius’s description of the state as a community in which several cities and provinces have bound themselves by a common law offered a better principle for limiting the power of a chief magistrate than a theory which contemplated a union of individuals under a sovereign ruler. Unfortunately it had little application in France and England, where the political thinking of the sixteenth and seventeenth centuries mainly took place. This fact was perhaps one of the reasons why Althusius’s work fell into oblivion.
The political theory of Althusius, so far as it went, was remarkably clear and consistent. It reduced the whole range of political and social relationships to the one principle of consent or contract. The compact, express or tacit, was made to account for society itself, or rather for a whole series of societies, of which the state was one.
It offered a logical basis for the element of authority inherent in any group, which appears in the state specifically as the sovereign public authority of the group itself, and it afforded a plausible ground for the legal limitation of executives and for a right to resist a tyrannous exercise of executive power.
The great virtue of the theory was its clearness. In substance Althusius had made himself independent of any religious sanction for authority, since he treated associations as self-sufficing, at least within the limits set by the purposes which each kind of association was meant to serve.
For the principle of consent itself, the contractual obligation upon which he made the right of every association depend, he offered no philosophical foundation at all. Doubtless he regarded the sanctity of contract as a principle of natural law, and he was content to refer natural law for its validity to the Decalogue,
To be sure, he made no use of this reference and his theory would be just as strong without it, but at the crucial point his thought had no foundation except a Scriptural authority. In part this was due to an element of superficiality in his own thinking, but in part also it was probably due to the fact that he had not made himself independent of Calvinism.
His conception of nature was tied to the essentially supernatural principle of predestination. The final step in detaching natural law altogether from its entanglement with religious authority was made not by Althusius but by the more philosophically minded Grotius.
Grotius: Natural Law:-
It must be admitted, however, that Grotius was less clear than Althusius in his treatment specifically of sovereignty and the state. The subject had only incidental importance for him, and its bearing on international relations made the constitutional powers of rulers more significant than the theoretical principles of sovereignty itself. Consequently Grotius, mare than Althusius, was hampered in his thinking about philosophical principles by his fidelity to the letter of positive law.
After defining sovereignty as a power not subject to the legal control of another he distinguished between a common and a special possessor, or subject, of the power. The common subject of sovereignty is the state itself; the special subject is one or more persons, according to the constitutional law of each state. The sovereign is therefore either the political body itself (Althusius’s state) or the government, a use of terms which hardly made for clearness.
He reverted also to the view of the Civilians that a people can wholly divest itself of its sovereign power, and to the feudal identification of public authority with a patrimonial power over land, which can be acquired by conquest, transferred, or devised. The result was that sovereignty as a specific property of the state itself was lost to sight in a flood of details that have to do not with a general theory but only with the constitutional powers of specific rulers.
Grotius’s importance in the history of jurisprudence rests not upon a theory of the state or upon anything that he had to say about constitutional law, but upon his conception of a law regulating the relations between sovereign states. The practical urgency of the problem in the seventeenth century need hardly be stressed.
Always a fertile field for disorder, the relations between independent political powers had become ever more chaotic with the breakdown of such feeble restraints as the medieval church had occasionally applied. The rise of the absolute monarchies and the more or less frank acceptance of a Machiavellian conception of the relations between them made force the arbiter in the dealings of states with states.
To this must be added the effects of the religious wars which followed the Reformation, bringing to international relations the intrinsic bitterness of religious hatred and affording the color of good conscience to the most barefaced schemes of dynastic aggrandizement. And behind overt political ambitions lay the economic baits which led the western European nations along the road of expansion, colonization, commercial aggrandizement, and the exploitation of newly discovered territory. There were ample reasons why Grotius should have believed that the welfare of mankind required a comprehensive and systematic treatment of the rules governing the mutual relations among states.
Such a work is all the more necessary because in our day, as in former times, there is no lack of men who view this branch of law with contempt as having no reality outside of an empty name.
Grotius’s contribution to the special subject of international law is beyond the limits of a history of political theory. In respect to the latter his importance lay in the philosophical principles upon which he sought to found his special subject and which he set out especially in the Prolegomena to his great work. In the seventeenth century it was a foregone conclusion that he should appeal to the generally admitted idea of a fundamental law, or law of nature, lying behind the civil law of every nation, and binding, because of its intrinsic justice, upon all peoples and upon subjects and rulers alike. In the long tradition of Christian political thought no writer had denied, or even doubted, the validity of such a law.
To the fact of validity Grotius need hardly address himself. But with the breaking up of Christian unity and the decline of Christian authority the grounds of this validity called urgently for reexamination. Neither the authority of the church nor the authority of Scripture, in fact, no form of religious revelation, could establish the foundation of a law binding alike on Protestant and Catholic peoples, and governing the relations between Christian and hon-Christian rulers.
It was natural that Grotius, with his background of humanistic training, should turn back to the even older, pre-Christian, tradition of natural law which he found in the writers of classical antiquity. Thus he chose, as Cicero had done before him, to put his examination of the grounds of natural law into the form of a debate with the skeptical critic of the Stoic philosophy, Carneades.
The point of Carneades’s refutation of natural justice lay in the argument that all human conduct is motivated by self-interest and that lav, is, in consequence, merely a social convention generally beneficial and supported not by a sense of justice but by prudence. Grotius’s answer was, in brief, that such an appeal to utility is essentially ambiguous since men are inherently sociable beings. As a result the maintenance of society itself is a major utility which is not measured by any private benefits (other than the satisfaction of their sociable impulses) accruing to individuals.
Man is, to be sure, an animal, but an animal of a superior kind, much farther removed from all other animals than the different kinds of animals are from one another. But among the traits characteristic of man is an impelling desire for society, that is, for the social life-not of any and every sort, but peaceful, and organized according to the measure of his intelligence, with those who are of his own kind; this social trend the Stoics called “sociableness.”
Hence the preservation of a peaceful social order is itself an intrinsic good, and the conditions required for that purpose are as binding as those which serve more strictly private ends.
This maintenance of the social order, which we have roughly sketched, and which is consonant with human intelligence, is the source of law properly so called. To this sphere of law belong the abstaining from that which is another s, the restoration to another of anything of his which we may have, together with any gain which we may have received from it; the obligation to fulfill promises, the making good of a loss incurred through our fault, and the inflicting of penalties upon men according to their deserts.
There are, then, certain minimal conditions or values which must be realized, human nature being what it is, if an orderly society is to persist. Specifically these are, in the main, the security of property, good faith, fair dealing, and a general agreement between the consequences of men’s conduct and their deserts. These conditions are not the result of voluntary choice or the product of convention but rather the reverse; choice and convention follow the necessities of the case.
For the very nature of man, which even if we had no lack of anything would lead us into the mutual relations of society, i the mother of the law of nature.
At one further remove, however, this natural law gives rise to the positive law of states; the latter depends tor its validity Upon the underlying grounds of all social obligation and especially upon that of good faith in keeping covenants.
The law of nature is a dictate of right reason, which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God.
The precise meaning of this reference to the command of God is important. In point of fact, as Grotius was at pains to make clear, it added nothing to the definition and implied nothing in the way of a religious sanction. For the law of nature would enjoin exactly the same if, by hypothesis, there were no God. Moreover, it cannot be changed by the will of God. The reason for this is that God’s power, does not extend to making true a proposition that is inherently self contradictory; such a power would be not strength but weakness.
Just as even God, then, cannot cause that two times two should not make four, so He cannot cause that that which is intrinsically evil be not evil.
Hence there is nothing arbitrary in natural law more than there is in arithmetic. The dictates of right reason are whatever human nature and the nature of things imply that they must be Will enters as one factor into the situation but the God or man does not create the obligatory nature of the law. Referring to the authority of the Old Testament, Grotius distinguished carefully between commands which God gave to the Jews as a chosen people and which therefore depended merely upon divine will, and the evidence which it, along with other important documents, affords of natural human relationships. Nothing could show more clearly his independence of the system of divine sovereignty implicit in Calvinism.
Moral Axioms and Demonstration:-
The surpassing importance of this theory of natural law was not due to the content which Grotius attributed to it, for in this respect he followed the well-worn trails of the ancient lawyers. Good faith, substantial justice, and the sanctity of covenants had been at all times the rules to which a natural origin was attributed. The importance was methodological. It provided a rational, and what the seventeenth century could regard as a scientific, method for arriving at a body of propositions underlying political arrangements and the provisions of the positive law.
It was essentially an appeal to reason, as the ancient versions of natural law had always been, but it gave a precision to the meaning of reason such as it had not had in an equal degree in antiquity. The references which Grotius frequently makes to mathematics are significant.
Certain propositions in the law, like the proposition two times two equals four, are axiomatic; they are guaranteed by their clearness, simplicity, and self-evidence. No reasonable mind can doubt them, once they are accurately understood and clearly conceived; they form the elements of a rational insight into the fundamental nature of reality. Once grasped they form the principles by means of which systematic inference can construct a completely rational system of theorems. The identity of this method with what was supposed to be the procedure of geometry is obvious.
This quality was exactly what commended it to Grotius. He stated specifically that, like a mathematician, he proposed to withdraw his mind from every particular fact. In short, he intended to do for the jaw just what, as he understood the matter, was being done with success in mathematics or what Galileo was doing for physics.
I have made it my concern to refer the proofs of things touching the law of nature to certain fundamental conceptions which are beyond question, so that no-one can deny them without doing violence to himself. For the principles of that law, if only you pay strict heed to them, are in themselves manifest and clear, almost as evident as are those things which we perceive by the external senses.
Because of the prevalence of this idea of good method, the seventeenth century became the era of demonstrative systems of law and politics, the purpose being to assimilate all sciences, the social as well as the physical, as much as possible to a form which was believed to account for the certainty of geometry, of the English philosophers ‘of the generation following Grotius, Thomas Hobbes followed this plan most consistently.
In Holland Spinoza undertook to present his ethics in the form of a geometrical demonstration, with all the paraphernalia of axioms, theorems, scholar, and corollaries, and his Political Treatise, though lacking the form, was scarcely less rigorous in its procedure. Samuel Pufendorf, in his great systematic treatise on natural and international law,began by taking exception to Grotius’s opinion that morals and mathematics are not equally certain.
Nor was this ideal of demonstration confined to law and politics. It was extended to all branches of social study, producing the systems of natural religion and rational ethics that prevailed throughout the seventeenth and eighteenth centuries. Finally, it produced the systems of natural economy that continued to pass as economic science well into the nineteenth century.
It would be impossible to exaggerate the importance that these conceptions had in the early modern development of social studies. Everywhere the system of natural law was believed to offer the valid scientific line of approach to social disciplines and the scientific guide to social practice.
The reason for the authority which this method acquired lay largely in the fact that it was believed to parallel the processes by which the physical sciences made dazzling progress in the interval between Galileo and Newton. These processes in turn were believed to depend upon the use of a method already well tried in geometry.
A few years after Grotius wrote Descartes gave the method its classical philosophical statement in the Discourse de la method resolve every problem into its simplest elements; proceed only by the smallest steps So that each advance may be apparent and compelling; take nothing for granted that is not perfectly clear and distinct.
It is evident that Descartes believed himself to be merely generalizing the process by which he had discovered the analytic geometry, and the remarks on method by a great experimental scientist like Galileo, interspersed in his dialogues on the new science of mechanics, were often to substantially the same effect.
In the seventeenth century no sharp line was drawn, as would be done now, between mathematics and the physical sciences of experiment and observation, probably because the experimental data required in mechanics were not very great, while the mathematical apparatus was considerable.
The method commended itself to scholars generally, and to students of law and politics in particular, not because they expected, like the physicists, to make any use of mathematics, but because the logical ideals of analysis, simplicity, and self-evident clarity appeared to be equally applicable to all subject-matters. They were, moreover, the perfect solvents for authority and mere customary belief. The appeal to reason in the early rationalists was directed against dogmatism and the blind following of tradition.
It was the development of the deductive technique itself that gradually brought to light an ambiguity inherent in the system of natural law, namely, the twofold use of the word truth to mean sometimes the logical dependence of a conclusion on its premises and sometimes the factual existence of the things or events referred to. This formalizing of deductive procedure led in time to a contrast between rational truth and factual data, but among the earlier rationalists, whether in science or law, the appeal to reason was not intended to exclude observation and the accumulation of fact. They believed that reason itself provided an unshakable framework of axiomatic principles and necessary deductions, but within this system they accepted as a matter of course great bodies of empirical fact that had to be learned by observation.
Thus Grotius never doubted that much flaw was due to what he called free will,that is, enactment, and might perfectly well be changed without violating reason. Some relationships, however, are necessary; neither will nor authority can change them. While they leave a considerable range within which positive law may vary, they definitely rule out certain combinations some such conception as this with respect to natural and positive law was generally accepted. More than a century later it was still a commonplace, witness the words with which Montesquieu opened the Spirit of the Laws:
Laws, in their most general signification, are the necessary relations arising from the nature of things.
The practical utility of the theory of natural law depended largely upon the fact that it introduced a normative element into law and politics, a body of transcendent values, such as justice, good faith, and fair dealing, by which the performance of positive law could be judged.
It was, therefore, the antecedent of all later efforts to moralize the law, such as Rudolf Stammler’s theory of just law, and even of utilitarian theories such as those of Ihering and Bentham, which retained elements of natural law even while rejecting it in principle. Broadly speaking, the whole point of view, like that of most seventeenth-century science, was Platonic; the Platonism of Grotius’s Prolegomena is unmistakable. The law of nature was an idea a type or model like the perfect geometrical figure, to which existence approximates but which does not derive its validity from agreement with fact.
It was for this reason in the old sense of common practice, could be redefined as international law, since common practice was at most only an indication, and not necessarily a very good indication, of what was reasonable. The rational was supposed to fix its own standard of value to which rulers ought to make the positive law conform. It was a standard of good practice to be set against the frequent unreasonableness of customary or conventional practice.
Consequently, the appeal to reason and natural law contained another possible ambiguity, in addition to that already mentioned between factual truth and logical implication. This is the ambiguity between logical and moral necessity. The system of natural law always assumed that its self-evident propositions were, at least in some cases, normative, setting up an ideal standard not only of what is but of what ought to be. Yet the necessity of an axiom in geometry and the necessity that law should be just are pretty clearly two different kinds a of necessity, since the latter refers to the realizing of human ends and purposes.
Even though it were true, as Grotius argued, that justice consists in a conformity of the law to underlying principles of human nature, the latter forms a highly complicated and changeable body of facts; the proposition that any values hold good eternally is still fay from self-evident. The system of natural law tended to prejudge the question whether values have any standing in nature. The only philosopher who seriously tried to face this problem in the seventeenth century was Spinoza.
His ethics was intended to have no more reference to ends than mathematics and physics have, but it cannot be claimed that he avoided double meanings in his use of terms. In his political theory he tried consistently to reduce rights to natural forces and to show that strong government in the long run must be good government. Here again he hardly did all that he undertook.
Hobbes tog had a metaphysical system in which transcendent values had no place, and his effort to square his materialism with the prevalent connotations of natural law proves nothing except that by the middle of the century this terminology had become mandatory.
All his most important conclusions were taken over by the Benthamites, who denied natural law on principle. The critical analysis of the system of natural law and the discrimination of the double meanings contained in it were the work of David Hume about the middle of the eighteenth century.
Contract and Individual Consent:-
What gave unity to the system of natural law in politics was not the self-evidence of its principles but the circumstance that, for the time being, there was general agreement about what it was important to insist upon. What seemed to nearly all thinkers axiomatic was that an obligation, to be really binding, must be freely assumed by the parties bound.
The choices, wisely considered, may be inevitable when human nature is taken into account, but the compulsion is an inward one, flowing from the interests and the motives of the man himself. In the final analysis obligation cannot be imposed by force but is always self-imposed.
It was this conviction which made all obligation appear under the guise of a promise; what a man promises he may reasonably be held to, since he has himself created the obligation by his own act. In the larger question of a man’s obligation to the community in which he lives, it was common to say that there was no rational way to conceive the obligation except by attributing it to a promise.
Whether such a covenant were historical or a methodological fiction, as Kant afterward said, made little difference; in either case all binding obligation had to be represented as self-imposed. A sentence from Pufendorf, the equivalent of which could be found in a host of writers, will illustrate this.
On the whole, to join a multitude, or many men, into one Compound Person, to which one general act may be ascribed, and to which certain rights belong, as it opposed to particular members, and such rights as no particular members can claim separately from the necessary, that they shall have first united their wills and powers by the intervention of convents; without which, how a number of men, who are all naturally equal, should be linked together, is impossible to be understood.
As a consequence a political theory based on natural law contained two necessary elements the contract by which a society or a government (or both) came into being and the state of nature which existed apart from the contract. The latter applied to two important cases the relations of private individuals to one another and the relations between sovereign states.
The agreements of these two kinds of contracting parties gave rise in the one case to municipal law and in the other to international law, both subject to the general principles of the law of nature. Both municipal and international law arise by covenant; both are binding because they are self-imposed. Theories of the form and nature of the contract might vary almost indefinitely.
The idea that government depended upon a pact between ruler and people was much older than the modern theories of natural law, being implicit in the relation of a feudal lord to his vassals. In this older conception the people or the community figured as a corporate body. As the theory of natural law was developed it became apparent that this capacity of a people to contract needed explanation.
The simplest explanation was to suppose two contracts, one by which the community itself was produced and binding its members to one another and one between the community thus formed and its governing officials. By this means the idea of contract was made into a universal theory covering all forms of obligation and all forms of social grouping. This is the form which the theory took in Althusius and which was continued in Pufendorf.
English writers did not develop the theory so far Hobbes suppressed the contract of government for his own purposes and Locke used both forms of contract without taking the trouble to distinguish them clearly. This was probably due to the fact that natural law never played the part in English jurisprudence that it did on the Continent.
The theory of contract, taken in the large, need not be used as a means of limiting the power of government or of defending resistance, though of course it frequently was so used. Hobbes and Spinoza bent it, or perhaps distorted it, to a defense of absolute power. Althusius and Locke used it to defend the thesis that political power is necessarily limited, and the latter made it the defense of a success, full revolution.
Perhaps most writers, like Grotius and Pufendorf, followed a middle course without justifying resistance they stressed moral limitations on rulers. The real emphasis of the theory was that law and government fall within the general field of morals; they are not merely expressions of force but are properly subject to ethical criticism. On the whole, therefore, the theory had a general bias to ward political liberalism.
The question whether the obligation of contract is really the most obvious of moral truths has long ceased to be of moment in political theory. What needs to be explained is why so many men, and on the whole the most enlightened, in the seventeenth century thought it self-evident.
Probably in no century before or since was there so self-conscious a break with the past or so resolute an effort to win freedom from the dead hand of custom and tradition. In the seventeenth century thinkers were conscious, as they had not been since the classic age of Greek philosophy, of the whimsicality of unsupported habit, of the insignificance of mere inherited position, and of the uncouthness of force without intelligence.
By common agreement the agent of human well being was coming to be sought in the enlightened intelligence, and the great enemy of enlightenment seemed to be the blind acceptance of that which has no better credentials than its mere existence.
To a self-confidence justifiably bred of successes in mathematical physics that made the century intellectually the most eminent of the modern age it seemed possible to begin construction from the very bottom, with only reason for a guide. Far in advance of any tangible accomplishment by modern science, the more enlightened already sensed, as Francis Bacon said, that knowledge is power.
Moreover, the philosophy of the seventeenth century was, for the first time, a philosophy of the middle class. For the time being the middle class was, generally speaking, on the side of liberalism, cosmopolitanism, enlightenment, and individualism.
Looking at its world with these preconceptions and convinced that it must start from what was self-evident, modern philosophy could find nothing apparently so solid and indubitable as individual human nature. The individual human being, with his interests, his enterprise, his desire for happiness and advancement, above all with his reason, which seemed the condition for a successful use of all his other faculties, appeared to be the foundation on which a stable society must be built. Traditional differences of status already began to seem precarious. Not man as a priest or a soldier, as the member of a guild or an estate, but man as a bare human being, a ‘‘masterless man,” appeared to be the solid fact.
Already it was possible to conceive a psychology which would lay bare the springs of action concealed in man as such. Some unity of nature he must have, some natural force distinctive of the kind, which might be stated with the precision now first becoming possible for the bodies that make up the world of matter. If this were true the local and temporal and individual peculiarities in his nature might be explained as deviations from a norm which on the whole remained constant.
If there were such an unchangeable core in human nature, there must surely be some minimal conditions required to make possible man’s stable combination in social groups and therefore some fundamental laws of good conduct and good government which no ruler could defy with impunity. The philosophy of natural law, of natural religion, of natural economy was rooted in both the intellectual and the social presumptions of the seventeenth century.
One outstanding fact, it seemed, required special explanation. Man the individual is also man the citizen or subject. This the theory of natural law believed to be deducible from his individual nature; it was certain but it was not self-evident. The assumed order of certainty was significant.
Under other circumstances man as a member of an organized community might have figured as the axiom, as in general it did for Plato and Aristotle, and man as an individual as the derivative. For the theories of natural law, and more especially after Hobbes, it was membership that required explanation.
Society is made for man, not man for society; it is humanity, as Kent said, that must always be treated as an end and not a means. The individual is both logically and ethically prior. To the philosophy of the seventeenth century relations always appeared thinner than substances; man was the substance, society the relation.
It was this assumed priority of the individual which became the most marked and the most persistent quality of the theory of natural law, and the clearest differential of the modern from the medieval theory. Developed especially by Hobbes and Locke, it became a universal characteristic of social theory down to the French Revolution and maintained itself far beyond that date. It persisted, moreover, as a presumption in Bentham’s School long after David Hume had destroyed the methodology of natural rights.