Sacred Polities, Natural Law and the Law of the Nations in the 16th-17th Centuries

Published June 13, 2023

Ad Fontes

Protestants today seem increasingly unsure whether to celebrate or lament their tradition’s contribution to the modern world. There was a time when all of this self-doubt was perhaps a healthy response to triumphalistic “Whig history,” in which Luther and his heirs gave us liberty and representative government and scientific progress and all the rest, leaving future generations to live happily ever after, supping on these golden fruits. However, so far has the pendulum swung that in many quarters it has become a form of masochism, with Protestantism blamed for generating a whole host of evils, from tyrannical statism to libertine individualism, from fideistic dogmatism to rationalistic skepticism, and much in between.
The proper response to all of these grand narratives–whether tragedy, comedy, tragical-historical, or tragical-comical-historical-pastoral–is, as the name of this journal suggests, to go back to the sources. What, in particular, do the seminal texts of early modern Protestant philosophy and political theory tell us about the intellectual innovations–or lack thereof–that are thought to have set the stage for profound moral and political shifts at the dawn of modernity? Although Anglo-Americans have long obsessed over the interpretation of Hobbes and Locke, it was their Continental counterparts, Hugo Grotius (1583-1645, a Dutch Arminian) and Samuel Pufendorf (1632-1694, a German Lutheran), who were arguably both more interesting and more historically significant. So I was exuberant to discover the recent essay collection, Sacred Polities, Natural Law and the Law of Nations in the 16th-17th Centuries, which represents an earnest grappling with the sources that helped define the intellectual and political world of Protestant Europe—and, through it, the early American Republic.

Unfortunately, the volume suffers many of the usual drawbacks of the genre—published proceedings of a specialist academic conference. It is, of course, too expensive for almost any buyers beyond institutional libraries, and the essays are of varying readability, a problem accentuated by the fact that few if any of the contributors have English as their first language. More importantly, there has been little effort on the part of the editor to hammer the volume’s 14 essays into a coherent and complementary shape. Rather than representing a well-molded and relatively systematic series of inquiries into the central topics and figures of the period, we are treated instead to a scattershot lineup of deep but narrow investigations into particular texts and questions, as one might find at an academic conference.

This is particularly so in the first half of the volume, headed “Humanist Inroads into Natural Law.” The essays in this section touch on some of the most important (and often neglected) writers and texts of late sixteenth and early seventeenth century natural law and political theology, including the Danish Lutheran scholar Niels Hemmingsen, the great Reformed theologian Franciscus Junius and his treatise On the Mosaic Polity, the towering Catholic neo-scholastic Francisco Suarez, and the anonymously written masterpiece of Reformed resistance theory, Vindiciae Contra Tyrannos. While full of interesting reflections, none of these essays really stand out as offering either striking originality of insight or the breadth of vision that would enable its targeted inquiry to shed much light on the wider field. I found them instructive, but not particularly invigorating.

The same, thankfully, cannot be said of the second half of the volume, headed “Hugo Grotius and Samuel Pufendorf.” Here, the essays do not merely benefit from the tighter framing around just two main thinkers, but also revolve largely around two critical questions: the relationship of natural law to divine will, and the relationship between Church and state. And although the essays are of widely varying quality, we are treated to some flashes of true brilliance, especially in Denis Ramelet’s magnificent essay “Moral Entities, Divine Will and Natural Law According to Pufendorf,” which should be required reading for any student of early modern intellectual history. To understand why, a bit of context may be in order.

Since at least the year 1300, discourse over natural law has been divided between the proponents of “rationalism” and “voluntarism.” “Rationalist” theories of natural law, generally associated with Thomas Aquinas, lay their stress on nature rather than law; for them, the natural law is simply the way things are; it is that which is objectively good given the nature of God and the nature of man. It is determined by the intrinsic ends and goods of human nature, with natural law describing the best way to achieve those ends. It is a product of the divine reason (hence the term rationalism) that is then received and grasped by the human reason as a kind of participation. Such natural-law doctrines are closely linked to metaphysical realism, with its conviction that forms and essences (and thus ends) are intrinsic to the nature of things and wholly objective.

“Voluntarist” theories of natural law, often attributed to Duns Scotus or William of Ockham, lay their stress on law rather than nature; for them, the natural law describes that which God has propounded and promulgated as his will for creation. It should be seen as contingent rather than necessary; God could, conceivably, have authorized a different morality for his human creatures, even after creating them. It is a product of the freely choosing divine will (hence voluntarism), which derives its force from his binding command and coercive enforcement of that command; moreover, since it is good because it is commanded, it can only be fully received by the human will responding to it in obedience, rather than merely intellectually grasping it. Such natural-law doctrines are often (though not necessarily) linked to metaphysical nominalism, with its teaching that created reality is irreducibly particular, with forms and patterns merely being the impositions of mind or convention.

If that summary sounds like an over-simplistic caricature, that’s because it is—and yet I fear that it is rather more sophisticated and nuanced than the bulk of the scholarly literature that casually tosses these terms around. (Including Ramelet’s fellow authors in this volume!) Indeed, I am not above suspecting that the very longevity of this debate owes mostly to the devious quest for academic job security. (Philosophers have a vested interest in the perpetuation of debates over abstruse questions, real or imagined, and historians have a vested interest in perpetuating debates over which side of those abstruse questions some historical thinker fell into.) Rationalist natural law, we are told, gives us a God who had no choice but to create a world exactly like this one (since he knew it to be best); whereas voluntarist natural law gives us a God who can rewrite the rule book whenever he wishes (since he wills it to be so). But most Christian natural law thinkers worth their salt have steered well between these two poles, converging on something that Pufendorf calls “hypothetical necessity”:

“For although God was under no constraint whatsoever to create man, … yet, when once He had decreed to create him a rational and social animal, it was impossible for the natural law not to agree with his constitution, and that not by an absolute, but by a hypothetical necessity. … But after man had once been created by God, an animal which could not be preserved alive unless he observed the natural law, it is no longer possible to believe that He will annul or change the law of nature so long as He makes no change in the nature of man” (quoted on pp. 300, 302).

In other words, God did not have to create at all, and if he did create, he did not have to create the human race. But, having eternally willed to do so, God (being perfectly righteous) had to simultaneously will the moral law as we now know it. Why? Because any other moral law would not “agree with our constitution—that is, it would not be fitted to man’s nature. And since God has committed himself to the world he did in fact create, the natural law is fixed and immovable as the means by which human nature achieves its proper ends. By means of a set of carefully-argued distinctions, expertly summarized by Ramelet, Pufendorf cuts through the fog of most of the sterile debates about “rationalism” and “voluntarism,” offering us a natural law theory that is at once wholly dependent on God’s righteous will, and wholly anchored in the permanent structure of created reality.

My only critique of Ramelet’s splendid article is that he is perhaps too quick to credit Pufendorf with a unique contribution to resolving this debate. Without disparaging Pufendorf’s admittedly brilliant work, we may note that much the same synthesis had been offered by Suarez in his monumental On Law and God the Lawgiver several decades earlier, and in briefer form by Richard Hooker (1554-1600) before him. Indeed, one might plausibly suggest that Aquinas’s own theory had not been all that different, and that indeed much of the great rationalist-voluntarist debate was imaginary, both then and now.
Ramelet’s essay is not the only one to suffer from a bit of specialist historical tunnel-vision, however; indeed, others suffer much more in this regard, especially the essays that focus on the critical questions of religious establishment and toleration in early-modern Protestantism. Stefanie Ertz investigates this issue in Grotius’s thought, and Thomas Behme and Heikki Haara in Pufendorf. While all three essays are rich, fascinating, and eminently worth reading, it is surprising how little the authors engage with the preceding century of Protestant debate over “the two kingdoms”: the freedom of individual conscience in internal religion and the authority of the Christian magistrate over external religion. Ertz for instance credits Grotius with a “pioneering” distinction between the obliging force of divine natural law and divine positive law that is substantially identical to that already offered by Hooker. Behme, for his part, asserts that “the territorial church government that emerged in the Lutheran territories…had no dogmatic basis in Luther’s theology” (262-63), apparently oblivious to recent scholarship by Torrance Kirby and James Estes that has demonstrated otherwise.

In short, Sacred Polities, Natural Law, and the Law of Nations is a good example of both the blessings and curses of modern specialist intellectual history. On the one hand, it offers deep dives into historically crucial but commonly neglected texts and thinkers, shedding light on the complex developments that tied the Reformation to the modern world, and offering fruitful resources for the renewal of Protestant political theology today. On the other hand, it obscures the value of these insights by its own narrow tunnel-vision, jargon, and clumsy prose, ensuring that these forgotten wells of insight will remain largely untapped. Let’s hope that the next generation of scholars will succeed in unstopping the clogged springs of the sources that once watered the fertile fields of Protestant civilization, so that we can reap a fresh harvest from them today.

Brad Littlejohn is the founder and president of the Davenant Institute, and a fellow at the Ethics and Public Policy Center. He is recognized as a leading scholar of the English theologian Richard Hooker and has published and lectured extensively in the fields of Reformation history, Christian ethics, and political theology. He lives in Landrum, SC, with his wife, Rachel, and four children.

Picture from Unsplash

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