(Ideas in Context) Ben Holland - The Moral Person of The State - Pufendorf, Sovereignty and Composite Polities (2017, Cambridge University Press)

The Moral Person of the State
This is the first detailed study in any language of the single most
influential theory of the modern state: Samuel von Pufendorf’s account
of the state as a ‘moral person’. Ben Holland reconstructs the theo-
logical and political contexts in and for which Pufendorf conceived of
the state as being a person. Pufendorf took up an early Christian
conception of personality and a medieval conception of freedom in
order to fashion a theory of the state appropriate to continental Europe,
and which could head off some of the absolutist implications of a rival
theory of state personality, that of Hobbes. The book traces the fate
of the concept in the hands of others – international lawyers, moral
philosophers and revolutionaries – until the early twentieth century.
It will be essential reading for historians of political thought and for
those interested in the development of key ideas in theology, inter-
national law and international relations.
ben holland is a lecturer in international relations in the School of

Politics and International Relations at the University of Nottingham.
He has published articles in academic journals such as History of Political
Thought, International Studies Quarterly and Philosophy & Social Criti-
cism. He is currently an editor of Political Studies and Political Studies
Review.
Pufendorf, Sovereignty and Composite Polities
Ben Holland
University of Nottingham
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Information on this title: www.cambridge.org/9781108416887
DOI: 10.1017/9781108242127
© Ben Holland 2017
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Library of Congress Cataloging-in-Publication Data
Names: Holland, Ben, 1982–
Title: The moral person of the state : Pufendorf, sovereignty and composite
polities / Ben Holland.
Description: Cambridge ; New York, NY : Cambridge University Press, 2017. |
Includes bibliographical references and index.
Identifiers: LCCN 2017007529 | ISBN 9781108416887 (Hardback)
Subjects: LCSH: Political science–Philosophy. | State, The–Philosophy. |
BISAC: POLITICAL SCIENCE / History & Theory.
Classification: LCC JA71 .H6152 2017 | DDC 320.101–dc23
LC record available at https://lccn.loc.gov/2017007529
ISBN 978-1-108-41688-7 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
For my parents
Contents
Acknowledgements page viii
Introduction: Bodies, Souls, Persons, States 1
Part I 27
1 The Constitution of the Free Person 29
2 The Constitution of the Person of the State 65
Part II 105
3 Continental Appropriations: The Moral Person of the State
and the Law of Nations 107
4 Atlantic Appropriations: Breaking and Making
Composite Polities 144
5 Anglo-German Interpretations: The Moral Person of the State
and the Legal Person of the State 182
Conclusion 208
References 222
Index 248
vii
Acknowledgements
I have accumulated many debts whilst writing this book, the more so
because of my slowness in completing it. A decade ago I began work on
the PhD thesis out of which the book has grown at the Department
of International Relations at the London School of Economics and
Political Science. Without the inspirational and formative teaching of
Ray Abrahams, James Alexander, Abigail Buckle, the late Geoffrey
Hawthorn, Graham Howes, Gabriela Ippolito-O’Donnell, Mary Sarotte,
Ruth Scurr, Ricardo Soares de Oliveira and above all Harald Wydra,
I might not have decided to continue studying. I certainly would not have
been able to undertake a PhD without the financial support provided
in the form of a 1+3 quota award from the Economic and Social
Research Council. I was fortunate indeed to have Kimberly Hutchings
as my supervisor at the LSE. Her generosity, energy and intellectual
acuity were critical during this academic apprenticeship. Chris Brown
showed a consistent interest in the project and provided much helpful
guidance. It benefitted from discussions over three years with Alexis
Crow, Philippe Fournier, Kevork Oskanian, Vassilis Paipais, Ramón
Pacheco-Pardo, Chris Phillips, Henry Radice, Meera Sabaratnam and
Ee Loong Toh, and from comments by Beate Jahn, Charles Jones,
George Lawson, Brendan Simms and Gabriella Slomp. Peter Wilson
and Edward Keene examined the thesis and supplied detailed notes
indicating some of what needed to be done to turn the thesis into a book.
I was very lucky to be appointed to a lectureship in the School of
Politics and International Relations at the University of Nottingham, as
friendly and collegial a place as I could ever have hoped to end up. Paul
Heywood and Vivien Lowndes were instrumental in making that happen,
and I owe them a debt of gratitude for that. For their camaraderie on a
daily basis, I am especially grateful to Andreas Bieler, Dean Blackburn,
Tony Burns, Catherine Gegout, Steve Fielding, Sarah Matthews, Caitlin
Milazzo, Anja Neundorf, Vanessa Pupavac, Sue Pryce, Matthew
Rendall, Bettina Renz, Lucy Sargisson and Mark Stuart. Dean read over
my original proposal to the Press, and Bettina helped me to decode the
viii
Acknowledgements ix
blackletter font of Das deutsche Genossenschaftsrecht, so special thanks to

them. Elias Dinas, Michael Freeden, Matt Goodwin, Miwa Hirono,
Lillian Li, Adam Morton, Mark Pickup, Daniel Ritter, Rod Thornton
and Mark Wenman have all moved on, and I miss all of them. The late
Alex Danchev was my unofficial mentor as I settled into teaching and
research in the school. His example in respect of both was extraordinary.
I am all too conscious that this book has little of his great panache and
range, but I hope that he might have got something out of it on one of
his raids.
I have been greatly assisted by scholars living outside London or
Nottingham. At several points when I was stumped, generous responses
to out-of-the-blue queries helped get me back on track. They probably
don’t remember it now, but Antony Black, Annabel Brett and Robert
von Friedeburg all helped me out of various impasses when I was a
PhD student. Later on, Theo Christov, Wim Decock, John Kronen,
R. J. Matava and Sydney Penner kindly answered my questions and
sometimes shared unpublished work with me. For inviting me to present
aspects of the research for the book so that some of the dull edges
might be sharpened by keen questions and criticisms, I am thankful to
Tarak Barkawi, Joe Hoover, Pablo Kalmanovitz, Reidar Maliks, Chris
Pierson and David Stevens. Michael Sonenscher read two of the chapters
and helped to improve them. Quentin Skinner nurtured my confidence
that what I had to say about the idea of the modern state was worth
saying, and I am grateful also for his crucial intercessions on my behalf as
the book made its way through the Press’s review process.
My thanks to the two anonymous readers for Cambridge University
Press, who supplied such detailed, challenging and constructive com-
mentary during the first manuscript review, and in the case of one
reviewer during two further rounds. They forced me to do better.
For John Haslam’s interest in the project from the beginning and his
perseverance with it, I am truly appreciative, as I am to those who have
steered the book through the publication process: Stephanie Taylor,
Grace Morris, Sindhu Ayyappan and Robin O’Dell.
For three decades of friendship Matthew Richards deserves a credit
here, as does my sister Julie. The book is dedicated to my parents, Sandra
and Keith Holland, to whom I owe so much. For bearing with it and
with me for so long, my greatest debt is to Gary Smith. Nothing says
‘I love you’ quite like a book about Pufendorf.
Introduction
Bodies, Souls, Persons, States
Analogy has aptly been described as ‘the fuel and fire of thinking’.1 When
confronted with novel situations and problems, human beings often try
to make sense of these, for themselves and for others, in terms of already
familiar categories. Analogies suggest that some weakly understood
object of concern is ‘isometric or parallel with or similar in relevant
respects to something else which is familiar, well-understood and
uncontroversial’.2 Hannah Arendt thus called analogies ‘the threads by
which the mind holds on to the world even when . . . it has lost direct
contact with it’.3 The history of human intellection and imagination at
any level of abstraction will be in some part a history of analogies. One
task that the intellectual historian might set himself, then, is what the film
critic Jean Douchet called ‘the creative act in reverse: starting with the
analogy, to discern and disclose what caused it to come into being’.4
In this book, my concern is the history of political thought, and
specifically the intellectual history of one of the most important
political concepts: the state. It focuses on how the idea of the state was
handled by the Saxon philosopher, lawyer and historian Samuel von
Pufendorf (1632–1694), one of the major theorists of the state in the
modern period and surely one of its most influential. The understanding
that Pufendorf came to have of the state he developed by means of an
analogy, which was to the human person. This book moves in two direc-
tions. It moves backwards from Pufendorf to investigate the category
of the person to which he analogised the state, in order to disclose its
functions and purposes in his work; it then moves beyond him and
examines some of the impacts that his theory of the state understood
by analogy to the person had on subsequent political thought.
1
Douglas Hofstadter and Emmanuel Sander, Surfaces and Essences: Analogy as the Fuel and
Fire of Thinking (New York, 2013).
2
Elliot Zashin and Phillip C. Chapman, ‘The uses of metaphor and analogy: Toward a
renewal of political language’, Journal of Politics, 36 (1974), pp. 290–326, at p. 312.
3
Hannah Arendt, The Life of the Mind, vol. 1, Thinking (New York, 1978), p. 109.
4
Jean Douchet, L’art d’aimer (Paris, 1987), p. 53.
1
2 Introduction
Pufendorf’s main concern when theorising the state was to show how
a particular kind of state – the composite state, which is to say one
self-identifying political community which is itself a union of other self-
identifying political communities – can still be an agent, a sovereign actor
in its own right. The book is thus an account of how Pufendorf’s concep-
tion of the state as being what he called specifically a moral person was
designed for this task, and of its fate down the centuries.
Pufendorf, to be sure, stood in a tradition as old as Western philosoph-
ical reflection on politics itself. Political communities have long been
analogised to some aspect of the human being. The soul came first, and
here the soul was compared to the polis in order that the former might be
better understood. In the Republic (ca. 380 BCE), Plato had Socrates
argue that the tripartite city of rulers, warriors and merchants was analo-
gous to the tripartite soul of reason, high spirit and appetite, where
reason guided the soul along its path, spirit kept it noble and through
appetite it sought satisfaction. The purpose of the analogy was to facili-
tate a proper understanding of justice, by seeing it first writ large in the
city so as better to detect it written in the smaller letters of the soul.5
‘In the case of the city, we decided it was just because each of the
three types of nature in it was performing its own function’. If ‘the
individual too has these same elements in his soul, we shall feel entitled
to expect that it is because these elements are in the same condition in
him as they were in the city that he is properly titled by the same names
we gave the city’.6 Aristotle’s discussion in the Nicomachean Ethics
(ca. 350 BCE) of akrasia, or the failure to act according to one’s better
judgment, compares such a mental state to the situation in which a city
prescribes good laws but fails to put them into practice. The akratic agent
seeks something that appears to be good to one part of the soul rather
than that part by which he or she is supposed to be governed; the akratic
city fails to act on the maxims produced after a process of deliberation
as a result of the emergence of factions that assail the city’s orderliness.7
The soul-city analogy became something of a trope following the recov-
ery of Aristotle during the thirteenth century. For Walter of Bruges
(died 1307), for instance:
5
Nicholas D. Smith, ‘Plato’s analogy of soul and state’, Journal of Ethics, 3 (1999),
pp. 31–49.
6
Plato, Republic, ed. G. R. F. Ferrari, trans. Tom Griffith (Cambridge, 2000), 435b–c,
p. 130.
7
Carlos Cortissoz, ‘The soul-state analogy in Aristotle’s Politics’, paper presented at the
twenty-eighth annual joint meeting of the Society for Ancient Greek Philosophy and the
Society for the Study of Islamic Philosophy, New York, October 15–17, 2010.
Bodies, Souls, Persons, States 3
the human soul bears the likeness of a well-ordered and well-established city,
because the will is present in it as king and ruler [rex et imperator], the intellective
or reasoning power is its counsellor, while the lower powers, namely, the
irascible, concupiscible, and moving powers, that is to say, those which carry
out movement, are like ministers, whose office is to carry out the orders of the will
that reigns over and commands them. The senses are all ministers and runners,
going hither and yon and reporting whatever they learn in the outer world.8
Soul analogies persisted into modernity, but from the medieval period
they were supplemented by analogies drawn to the human body. Now
the purpose of the analogy was to organise knowledge of increasingly
complex political systems in light of parallels to the body. As Edward
Forset put it in the heyday of the image in 1606:
The Commonweale with all her parts, orders, qualities, and requisites
whatsoever, is (for better apprehension & illustration) set forth by sundry fit
resemblances . . . but by none more properly than eyther by the universall masse
of the whole world . . . or else by the body of man, being the lesser world . . . It
were a paynes well bestowed, to observe the good correspondence betweene
every the particular parts or faculties in man, and the other distinct parts,
powers, and operations of the bigger bulke.9
The ‘body politic’ is, of course, a more famous image than the soul-
state.10 John of Salisbury first used it in his Policraticus, written around
1159, according to which the prince is the head; the priests the soul;
the senate the heart; the judges the ears, eyes and tongue; the officials the
hands; the treasury the belly; and the husbandmen the feet, all in order to
say that the misery suffered by this latter group afflicted the whole
body.11 The soul was still present here, but figured as one part – a special
part, with otherworldly access – of the body politic. Increasingly, though,
it was the distinction between body and head of the body politic that
came to carry argumentative weight. Christine de Pizan argued in
1406 that in ‘one polity like a living body’ ‘the prince and princes hold
the place of the head in as much as they are or should be sovereign’,
8
Quoted in Roland J. Teske, ‘The will as king over the powers of the soul: Uses and
sources of an image in the thirteenth century’, Vivarium, 32 (1994), pp. 62–71, at
pp. 64–65.
9
Quoted in Margaret Healy, ‘Medicine, metaphor, and “crisis” in the early modern social
body’, Journal of Medieval and Early Modern Studies, 46 (2016), pp. 117–139, at p. 120.
On Forset’s mixed metaphors, see James Daly, ‘Cosmic harmony and political thinking
in early Stuart England’, Transactions of the American Philosophical Society, 69 (1979),
pp. 1–41, at pp. 16–19.
10
A useful historical overview is A. D. Harvey, Body Politic: Political Metaphor and Political
Violence (Newcastle, 2007).
11
John of Salisbury, Policraticus, trans./ed. Cary J. Nederman (Cambridge, 1991),
pp. 66–68.
4 Introduction
while ‘other kinds of people are like the belly, the feet, and the legs’.12
Early organic analogies did not always include the monarch as head:
Nicholas of Cusa claimed in 1434 that the land was the skeleton of the
state, the people the flesh, and the law the nerves, but he said nothing
of the head.13 But the image of the corporate whole stabilised around
the bipartite division of people as body and king as head under the
influence of the posthumously published writings of Sir John Fortescue
from the mid-sixteenth century.14 Thus the famous doctrine of the king’s
two bodies,15 here explained by Sir Francis Bacon:
the King has two Bodies, the one whereof is a Body natural . . . and in this he is
subject to Passions and Death as other men are; and the other is a Body politic
and the Members thereof are the subjects, and he and they together compose
the corporation, and he is incorporated with them and they with him, and he is
the Head, and they are the Members; and the Body is not subject to Passions and
Death, for as to this Body the King never dies.16
The body politic became the preeminent metaphor undergirding theories
of monarchical power.17 That formative text for the modern concept of
sovereignty, Jean Bodin’s Six livres de la république (1576), argued that
‘the Citie, or state’ was a ‘union of the people under the same sover-
aigntie of government’, and that the people ‘in one bodie’ require
‘one soveraigne monarch’ as head if they are to compose such a state.18
The most famous somatic representation of the state is, of course, the
frontispiece of Thomas Hobbes’s Leviathan (1651). In the Introduction,
Hobbes renders one of the most elaborate analogies between the human
being and the ‘Artificiall Man’ of the state:
12
Christine de Pizan, The Book of the Body Politic, trans./ed. Kate Langdon Forhan
(Cambridge, 1994), p. 4.
13
Martin Wolff, ‘On the nature of legal persons’, Law Quarterly Review, 54 (1938),
pp. 494–521, at p. 499.
14
On Fortescue, see J. H. Burns, ‘Fortescue and the political theory of dominium’,
Historical Journal, 28 (1985), pp. 777–797; Andrei Salavastru, ‘The idea of body politic
in English thought in the XVth century: The new paradigm of John Fortescue’, Cahiers
de Psychologie Politique 20 (2012), http://lodel.irevues.inist.fr/cahierspsychologiepolitique/
index.php?id=1979 (accessed June 15, 2016).
15
The classic study is Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Mediaeval
Political Theology (Princeton, 1957).
16
Sir Francis Bacon, quoted in Kenneth Robert Olwig, Landscape, Nature, and the Body
Politic (Madison, WI, 2002), pp. 86–87.
17
In an earlier draft I had ‘absolutism’ rather than ‘power’, but I was persuaded to replace
the former by the latter after reading Daniel Lee, ‘Office is a thing borrowed: Jean Bodin
on offices and seigneurial government’, Political Theory, 41 (2013), pp. 409–440.
18
Jean Bodin, The Six Bookes of a Commonweal, ed. Kenneth D. McRae, trans. Richard
Knollys (Cambridge, MA, 1962), I, ii, p. 10, and I, viii, p. 99.
For by Art is created that great LEVIATHAN called a COMMON-WEALTH,

or STATE, (in latine, CIVITAS) which is but an Artificiall Man; though of greater
stature and strength than the Naturall, for whose protection and defence it was
intended; and in which, the Soveraignty is an Artificiall Soul, as giving life and
motion to the whole body; The Magistrates and other Officers of Judicature and
Execution, artificiall Joynts; Reward and Punishment (by which fastned to the
seate of the Soveraignty, every joynt and member is moved to performe his
duty) are the Nerves, that do the same in the Body Naturall; The Wealth and
Riches of all the particular members are the Strength; Salus Populi (the peoples
safety) its Businesse; Counsellors, by whom all things needfull for it to know, are
suggested unto it, are the Memory; Equity and Lawes, an artificiall Reason and
Will; Concord, Health; Sedition, Sicknesse; and Civill war, Death.19
We can observe immediately, though, a major difference between
Hobbes and the writers who preceded him: the king does not appear as
head of the body politic. This is because Hobbes, notwithstanding the
fact that he did not efface soul and body in this depiction, intended
nonetheless that they be eclipsed in an altogether new description of
the state. He described the state as a person.
When Hobbes called the state a person, he was appealing in particular
to an historical usage of the term that turned on the concept of
representation. Person seems originally to have been a theatrical term.
The Latin persona (per-sona, meaning ‘sound through’) was itself a trans-
lation of the Greek term prosōpon. Prosōpon originally meant ‘face’, in a
special way: the face as offered to the sight of someone who looked at it,
the face’s guise. It quickly and easily acquired an important secondary
meaning in ancient Greek theatre – and in its precursor, the Dionysian
rituals – where prosōpon named the mask that the actor wore. Such a mask
designated the character being played and also helped the actor to project
his voice, for all roles were played by two or three actors in the open air.
Persona in Latin translated this secondary Greek meaning, labelling the
mask worn by actors in Roman drama.20 ‘The Word Person’, Hobbes
wrote, ‘is latine: insteed whereof the Greeks have prosōpon, which signi-
fies the Face, as Persona in latine signifies the disguise, or outward
appearance of a man, counterfeited on the Stage; and somtimes more
particularly that part of it, which disguiseth the face, as a Mask or
19
Thomas Hobbes, Leviathan: The English and Latin Texts, ed. Noel Malcolm (Oxford,
2012), Introduction, p. 16.
20
Marcel Mauss argued that the word persona was of Etruscan origin. It is likely that the
Romans first experienced theatre in the form of Greek dramas performed by Etruscan
actors. Marcel Mauss, ‘A category of the human mind: The notion of person, the notion
of self’, in The Category of the Person: Anthropology, Philosophy, History, eds. Michael
Carrithers, Steven Collins and Steven Lukes (Cambridge, 1985), p. 17.
6 Introduction
Visard’.21 Both terms – prosōpon and persona – somewhat later began to

denote not merely the mask itself but also the character or role performed
by the actor wearing the mask, so that the actor represented the character
onstage, and the person of, say, Oedipus ‘comes alive’ when the actor
performs the part of Oedipus. In this one theatrical context alone, then,
person had two closely related but still distinct meanings, a fact Hobbes
would readily exploit. It could mean both the role assumed by the actor
on the stage and the performance of that character, the actor-in-
performance.
Hobbes’s own definition of the term person in chapter 16 of Leviathan
is this:
A Person, is he, whose words or actions are considered, either as his own, or as
representing the words or actions of any other man, or any other thing to which they are
attributed, whether Truly or by Fiction.
When they are considered as his owne, then he is called a Naturall Person: And
when they are considered as representing the words or actions of an other, then is
he a Feigned or Artificiall person.22
Personhood, according to Hobbes, is about the capacity for speech and
action. Speaking and acting, it is important to recognise, do not by
themselves make a person. Rather, a person comes into being under
the gaze of others who must decide to whom or to what those words
and deeds are to be attributed, so that the speech and action is ‘of a kind
as to raise the question of “ownership”, that is, the question of who
“owns up” or takes responsibility for the things said and done’.23 Natural
persons are those who are considered to own their own words and deeds;
they own up to their own words and deeds and thus represent them-
selves. Artificial persons, on the other hand, are those who represent
someone or something else. They represent ‘truly’ when those who are
represented are capable themselves of owning up for the words and deeds
said and done in their name by means of their own words and actions. An
artificial person ‘by fiction’, on the other hand, is one whose words and
actions are not truly capable of being owned by those whom she repre-
sents because the represented party is not itself capable of performing
words and actions to which it can own up for itself. Therefore, when a
barrister speaks in the name of a perfectly rational plaintiff in court,
the barrister is in Hobbes’s terminology truly an artificial person.
21 22
Hobbes, Leviathan, chap. 16, p. 244. Ibid.
23
David Runciman, ‘What kind of person is Hobbes’s state? A reply to Skinner’, Journal of
Political Philosophy, 8 (2000), pp. 268–278, at p. 269. My understanding of Hobbes’s
concept of person is indebted to Runciman’s analysis.
By contrast, someone who represents either an irresponsible human

being (Hobbes’s example is a madman) or an inanimate thing (Hobbes’s
examples are a bridge or a hospital) is an artificial person by fiction,
because the thing represented is otherwise, on Hobbes’s account, a
nonperson: it is either completely incapable of speech or action
(the hospital, the bridge), or else it cannot be considered as taking
responsibility for its words and deeds (the raving lunatic).
We return to Hobbes’s argument that the state itself is a person. What
is clear is that Hobbes’s person of the state is not itself an artificial person,
because the state itself is not a representative.24 Rather, when natural
persons living in the state of nature agree with one another that the words
and deeds of one individual or assembly will count as the words and
deeds of them all, they generate two things. First, they generate a new
artificial person to whom they grant authority to speak and act in their
name. This is their sovereign. Second, they engender a further person,
who is brought into being by the single will by which the covenanters
authorise the artificial person of the sovereign to serve as their
representative. They stop being a ‘Multitude’ of individuals and become
instead a single author of the words and deeds of this representative.
This single author is on Hobbes’s account a person, the person of the
state no less, which, he announced in chapter 17 of Leviathan, is
‘One Person, of whose Acts a great Multitude, by mutuall Covenants one with
another, have made themselves every one the Author’.25 The state itself,
however, is capable of speaking and acting only by the personation of
the sovereign, who ‘carryeth’ the person of the state.26 The state itself,
therefore, cannot ‘truly’ own up to what is said and done in its name, and
yet it bears all the responsibility for what is said and done in its name – it
alone is the true subject of the sovereignty exercised on its behalf by the
authorised representative.27
Hobbes did not say in Leviathan what kind of person the state was.
He gave it a proper name, ‘Leviathan’, and described it as ‘Persona
Civitatis, the Person of the Common-wealth’, but that does not help us
24
Cf. Arto Tukiainen, ‘The commonwealth as a person in Hobbes’s Leviathan’, Hobbes
Studies, 7 (1994), pp. 44–54; Mark Neocleous, Imagining the State (Maidenhead, 2003),
p. 75. Henry S. Turner, The Corporate Commonwealth: Pluralism and Political Fictions in
England, 1516–1651 (Chicago, 2016), pp. 213–215, makes a persuasive case that some
degree of artificiality ought still to be attributed to Hobbes’s state.
25 26
Hobbes, Leviathan, chap. 17, p. 260. Ibid., p. 262.
27
For an extremely detailed analysis of all the subtleties that I have only sketched above,
see Mónica Brito Vieira, The Elements of Representation in Hobbes: Aesthetics, Theatre, Law,
and Theology in the Construction of Hobbes’s Theory of the State (Leiden, 2009), esp.
pp. 145–207.
8 Introduction
to locate it in either of his categories of natural or artificial persons.28 It

appears, in fact, to belong to neither, and Hobbes did not provide a name
for the class of person that does not itself exist as a person until a
representative performs words and deeds in its stead. But in The Elements
of Law (written for private circulation before 1640), he did describe the
‘body politic’ as ‘a fictitious body’, and some commentators have called
Hobbes’s person of the state a ‘fictional person’.29 It is this fictional
conception of the state that is so powerful and accounts for the influence
of Hobbes’s theory of the state. On this conception, the state transcends
all actually existing persons, and is thus hard to pin down. David
Runciman puts it clearly. The state, he writes,
cannot simply be identified with any of the persons who inhabit the world of real
action. The state cannot be identified with the group of individuals who make up
the people, because the people have no unity, and cannot act as a person in their
own name. But nor can the state simply be identified with the sovereign power in
the state, because the sovereign power is always embodied by an individual or a
group of individuals (‘an assembly’) who cannot bear the identity of the state
simply as individuals . . . The state is the person that the sovereign bears, but is
not the sovereign’s actual person, nor the actual persons of the people
represented, nor the relation between them (which is not a person at all).30
And yet the state authorises real agents to exercise the fullest powers for
the public good. It also endures beyond the individuals who first coven-
anted to create it and beyond the reign of any particular sovereign. States
are mortal, but they are, says Hobbes, mortal gods.31
Hobbes’s claim that the state is reducible neither to people nor sover-
eign but that its personality transcends both has recently been described
as nothing short of ‘epoch-making’ by Quentin Skinner, the foremost
intellectual historian of the modern state, in a great work of compression
28
Hobbes, Leviathan, chap. 26, p. 414.
29
Thomas Hobbes, The Elements of Law, Natural and Politic, ed. Ferdinand Tönnies
(London, 1969), part II, chap. 2.4, p. 120. I am grateful to Quentin Skinner for
pointing me to this passage. For analysis, see Robin Douglass, ‘The body politic “is a
fictitious body”: Hobbes on imagination and fiction’, Hobbes Studies, 27 (2014),
pp. 126–147.
30
David Runciman, ‘The concept of the state: The sovereignty of a fiction’, in States and
Citizens: History, Theory, Prospects, eds. Quentin Skinner and Bo Stråth (Cambridge,
2003), pp. 29–30.
31
It seems to me that Philip Pettit cannot be right when he writes that for Hobbes ‘there are
no persons but spokespersons’. It might be the case that the state does not exist as a
person without its sovereign representative, but it still exists as something beside the
sovereign. Pettit collapses the person of the state and the artificial person of its
representative together. See Philip Pettit, Made with Words: Hobbes on Language, Mind,
and Politics (Princeton, 2008), p. 56. In the Conclusion, however, I indicate why I think
that the potential for such a collapse lurks in Hobbes’s own text.
and suggestion.32 Hobbes’s conception of the fictional person of the

state, Skinner argues, gave him a way of seeing beyond the rival
‘absolutist’ and ‘populist’ theories of the body politic, one or other of
which was adopted by all writers and agitators in Europe before the
English Revolution. For the absolutists, governmental actions were
‘legitimate as long as they [were] performed by a recognized head of
state’, whereas, for the populists, they were legitimate only ‘if they [were]
performed by the will . . . of the sovereign body of the people’.33
Both conditions, however, had to be satisfied on Hobbes’s conception
of the personality of the state. This was a new account of the authority of
the state that justified that authority in capacious and more broadly
acceptable terms. The body politic analogy had become a danger to
political order, a danger mitigated by Hobbes’s ingenious person
analogy.
Skinner’s genealogy proceeds to trace the fate of Hobbes’s conception
of the person of the state all the way into the twentieth century. There
was a distinct lull, Skinner claims, before it began to make an impact.
Hobbes’s real sway over how others thought about the state occurred
after his theory had begun ‘to capture the attention of numerous
European commentators on the ius gentium and the law of nature’.34
These writers took from Hobbes a ‘vision of the state’ ‘as a guarantor
of the legitimacy of governmental action’, but also as possessing the
‘power to bind whole nations to their promises over long tracts of time’.35
Hobbes helped writers in the nascent field of European public law to
render the law of peoples into a more enduring international law.
The ‘first major philosopher’ in this tradition ‘to draw heavily on
Hobbes’s account’ was the principal protagonist of the present book,
namely Pufendorf.36 Pufendorf was, Skinner maintains, tremendously
influential in propagating Hobbes’s theory of the state. Indeed, while
Hobbes’s idea of the state as a person ‘had little immediate impact on
32
Quentin Skinner, ‘A genealogy of the modern state’, Proceedings of the British Academy,
162 (2009), pp. 325–370, at p. 345. Earlier works bearing on state personality are:
Quentin Skinner, ‘The state’, in Political Innovation and Conceptual Change, eds.
Terence Ball, James Farr and Russell L. Hanson (Cambridge, 1989); Quentin
Skinner, ‘Hobbes and the purely artificial person of the state’, Journal of Political
Philosophy, 7 (1999), pp. 1–29; Quentin Skinner, ‘From the state of princes to the
person of the state’, in Visions of Politics, vol. 2, Renaissance Virtues (Cambridge, 2002);
Quentin Skinner, ‘Hobbes on representation’, European Journal of Philosophy, 13 (2005),
pp. 155–184; and Quentin Skinner, ‘Hobbes on persons, authors and representatives’, in
The Cambridge Companion to Hobbes’s Leviathan, ed. Patricia Springborg (Cambridge,
2007).
33
Skinner, ‘Genealogy’, p. 348. 34
Ibid., p. 349. 35
Ibid., p. 353.
36
Ibid., p. 349.
10 Introduction
English political debate’, Basil Kennet’s translation of Pufendorf’s major

work, published in 1717, was instrumental in the ‘process of assimilation’
of Hobbes’s theory of the state back into English thinking, some time
after its widespread acceptance, again via Pufendorf, on the European
continent.37 But, according to Skinner, Pufendorf’s significance is that
he disseminated Hobbes’s theory of the state. He adopted it, but did not
adapt it. Pufendorf’s definition of the state, he says, ‘is little more than a
quotation from Hobbes’s definition of the state in chapter 17 of
Leviathan’.38
We have noted already that Hobbes only obliquely named the kind
of person that the state was. Skinner follows Runciman in calling the
person of Hobbes’s state a ‘fictional’ person.39 Pufendorf, by contrast,
did name the kind of person that the state was: he said that it was a ‘moral
person’. Skinner can equate Hobbes’s state with Pufendorf’s because
fictional persons and moral persons are, he thinks, identical. Continental
writers, he notes, had long described corporations as personae fictae, and
Hobbes’s ‘view of the state [is] essentially as an instance of such a
corporation’.40 They had done so because corporations were independ-
ent legal subjects as real in law as its individual human subjects, although
they were legal subjects by legal fiction, subjects only within the matrix of
the law. Skinner does not say so, but it is the case, as he implies, that
French canon lawyers translated persona ficta as personne morale in their
discussions of how it was that corporations such as hospitals and monas-
teries could acquire property or receive gifts.41 Pufendorf, as Skinner
notes, ‘discussed the concept of the civitas as a persona moralis at
length’.42 His first translator, the Swiss jurist Jean Barbeyrac, rendered
persona moralis as personne morale in his translation of 1706. For Skinner,
there is nothing more to be said about Pufendorf’s moral person of the
state; the ‘moral’ is perhaps a useful qualifier of Hobbes’s person of
the state, better displaying its debt to the legal theory of the
corporation, but it is the same state all the same.
Something, however, is not quite right about this. After all of his
labour to establish the distinctiveness of Hobbes’s theory of the person-
ality of the state, Skinner’s sudden assertion that Hobbes’s state is
‘essentially’ a corporation looks like a hasty attempt to try to fit him into
the story of Continental public jurisprudence. Hobbes’s person of the
37 38 39
Ibid., pp. 353 and 350. Ibid., p. 351. Ibid., p. 347, and thereafter passim.
40
Ibid., p. 349.
41
See, for example, George F. Deiser, ‘The juristic person’, University of Pennsylvania Law
Review and American Law Register, 57 (1908), pp. 131–142.
42
Skinner, ‘Genealogy’, p. 349.
state is certainly something like a corporation. The point about it existing

by legal fiction is an important similarity: Hobbes’s state exists as a
person by fiction of the natural law commanding individuals to seek
peace, the same law that directs the multitude to covenant to establish
the state and thereby to exit the perilous state of nature. The state must
also differ, however, because, unlike a corporation, it has no owners
before it is represented. A hospital must exist before its owners can
appoint a spokesperson, but the state cannot. Skinner’s story fails also
to register that Hobbes expressly ruled out the corporation as a suitable
homologue for the state. As Michael Oakeshott remarked some time ago,
corporations could only come into being with the say-so of ‘an already
recognised superior legal authority’.43 Hobbes himself, furthermore,
seems to have wanted to contrast the corporation and the state for the
sake of civil order. He finds that the contention of individuals to be
already represented in corporations causes them ‘to give leave to a Body
Politique of Subjects’, and thereby to ‘abandon the government of so
much of the Commonwealth, and to divide the Dominion, contrary
to their Peace and Defence’.44 Corporations, Hobbes insisted, are like
‘many lesser Common-wealths in the bowels of a greater, like wormes in
the entrayles of a naturall man’.45 Corporations are lesser common-
wealths; commonwealths are not simply greater corporations. Finally,
in The Elements, Hobbes wrote that, by conceiving of bodies politic as
corporations, ‘innumerable writers of politics’ had thereby failed to see
how the state consists in ‘the union of many men’ rather than their
mere ‘concord’.46 The very analogy of the body stood charged with
provoking sedition: even ‘one body of rebellion’ can be brought into
concord by a ‘head’, whereas the sovereign is the ‘soul’ and not the mere
head of the state, for it is by authorising a single will that a people gives
rise to the union that is the state, and the will is a power of the soul, not of
the head.47
If Hobbes’s state is not a corporation, and if Pufendorf’s is, it is not the
same state as Hobbes’s. But Pufendorf did not call the state personne
morale; he called it persona moralis. It is clearly an important description:
43
Michael Oakeshott, On Human Conduct (Oxford, 1975), p. 204.
44 45
Hobbes, Leviathan, chap. 22, p. 350. Ibid., chap. 29, p. 516.
46
Hobbes, Elements, part II, chap. 8.7, pp. 173–174.
47
Ibid., part II, chap. 8.11, p. 175. Katherine Bootle Attie argues that it is important for
Hobbes that sovereignty is a property of the soul of the state. It implies the sovereign’s
‘omnipresence throughout the body’, and thus his ‘relative safety: a soul is an essence,
not a part that can be cut off as a head can’. Katherine Bootle Attie, ‘Re-membering the
body politic: Hobbes and the construction of civic immortality’, ELH: English Literary
History, 75 (2008), pp. 497–530, at p. 504.
12 Introduction
Skinner gives us good reason to suppose that it might have been the most
significant theory of the state during a period that bore witness to the
consolidation of the modern state in Europe and of European state power
much beyond it. He thinks that it is an alternative label for Hobbes’s
Leviathan.48 But it is not.
When Pufendorf described the state as a moral person he was making
use of a particular technical term in the vocabulary that he had formulated
for his broader philosophical purposes. Chapter 2 of this study presents
his argument in greater detail and with supporting quotation, and here
I will merely sketch what Pufendorf meant by moral personality so as to
highlight where Skinner has erred in his genealogy of the modern state.
Pufendorf drew a distinction at the outset of his great treatise, The Law of
Nature and Nations (1672), between physical and moral entities. Moral
entities are the subject of moral philosophy. They are, he said, modes that
reflective beings have imposed on physical existence so that human social
life be orderly and attractive. Such moral entities include everything from
the prices by which physical objects are valued, through rights that can
give rise to claims on the part of one human being against another, to roles
that fall to people to perform. Moral entities, then, are in more modern
parlance institutional facts arising from collective intentionality.49 They
are obviously extremely diverse. Pufendorf thought that the only way to
bring them into some kind of intelligible order was by apprehending
them as analogous to physical entities. Thus, quantity as a characteristic
of entities in the physical world has as its analogue in the moral world the
valuation of people, things or actions with respect to social status, price or
dessert. Just as quality is a feature of the natural world, evaluative modes
such as titles, rights and obligations are their counterparts in the moral
world. As physical bodies interact within a physical space, so moral entities
interact in a moral or legal space. And in the physical world, quantity and
quality must inhere in some substance. The equivalent of substances in
the moral world, wrote Pufendorf, are moral persons. These are composites
of duties, rights and capacities that we can call roles or offices.
To perform in any role or to take on some office is to bear some
persona. For Pufendorf just as much as for Hobbes, ‘person’ is a role
concept. Moreover, Pufendorf followed Hobbes by also describing the
state as a person. Human beings may assume roles singly or as a group.
48
So, also, does Nicholas Greenwood Onuf, Making Sense, Making Worlds: Constructivism
in Social Theory and International Relations (Abingdon, 2013), p. 77.
49
The parlance of Elizabeth Anscombe and John Searle. G. E. M. Anscombe, ‘On brute
facts’, Analysis, 18 (1958), pp. 69–72; John R. Searle, The Construction of Social Reality
(London, 1995); John R. Searle, Making the Social World: The Structure of Human
Civilization (Oxford, 2010).
When they do the latter, then a composite or compound moral person

comes into being, which is what happens when a group of people author-
ise a sovereign who will represent them as one person. This all appears so
Hobbesian that my insistence that Pufendorf’s moral person of the
state is not Hobbes’s person of the state might seem odd, but differences
there are, and they are significant. First, Pufendorf’s moral person of
the state cannot be exactly the same as Hobbes’s person of the state
because Hobbes’s person of the state is sui generis. By contrast, Pufen-
dorf’s world teems with moral persons: the state is one of many. A single
individual can enact several personae: she can be a wife, a mother,
an accountant, a committee chair, a Christian, and so on. The moral
person of the state itself is compounded of the moral person of the
sovereign and the moral persons of all the citizens. So it is not quite the
same thing as Hobbes’s state, where the natural persons of the multitude,
the artificial person of the sovereign and the fictional person of the state
itself are all persons of different kinds.
My second point is more fundamental still: Pufendorf explicitly argued
that Hobbes’s concept of the person was flawed. As we have seen,
Hobbes tied personhood to personation, or representation. On this
account, if an owner of a bridge authorises someone to speak for it, then
that bridge is a person. As Hobbes wrote in his Latin version of Leviathan,
‘there are few things which cannot be persons’.50 Pufendorf disagreed.
‘Mr. Hobbs is mistaken, when he will have it frequently to happen in
Communities, that a Man shall bear the Person of an inanimate Thing’.
It simply is not necessary, thought Pufendorf, to constitute such things as
churches or bridges or hospitals as persons, it ‘being more natural’,
he thought, ‘to say in plain Terms, that particular Men are impower’d
by the Community, to collect the Revenue, settled for the preserving of
such Places, or Things, and to carry on and sustain any Suits that shall
arise on those Accounts’.51 Entities such as hospitals, even when some-
one speaks for them, are things, not persons. A little later in the text,
Pufendorf attacked Hobbes’s tracing of the etymology of ‘person’ to the
theatre, as tending to rob the concept of its political seriousness:
Men sometimes frame a kind of Shadows, or Images of moral Persons, for the
representing of them in Sport and Jest. Whence it came to pass, that the Term of
50
Hobbes, Leviathan, p. 247: ‘Paucae res sunt, quarum non possunt esse Personae’.
51
Samuel von Pufendorf, The Law of Nature and Nations, ed. Jean Barbeyrac, trans. Basil
Kennet, 5th edn. (London, 1749), I, i, 12, pp. 7–8/19. References to this text are to
book, chapter, paragraph and page, respectively. The page number after the slash is to
the modern critical edition of the Latin text: Samuel von Pufendorf, De jure naturae et
gentium, ed. Frank Böhling (Berlin, 1998). Latin interpolations are taken from this text.
14 Introduction
Person hath been peculiarly challeng’d by the Stage. The Essence of a feigned
Person consists in this, that the Habit, Gesture, and Speech of another real Person
be handsomely express’d: Thus the whole Procedure bears only a Countenance
of Mirth, and whatever such a fictitious Actor says or does, leaves no moral Effect
behind it, and is valu’d only according to the Dexterity and Artifice of the
Performance . . .
But the Imposition which produceth true moral Persons, is allow’d no such Liberty;
but ought always to presuppose such Qualities, as may contribute to the solid
Use, and real Benefit of human Life: And he that in constituting Persons hath not
a regard to these Endowments, is to be esteem’d an extravagant Buffoon.52
Such mentions of a more ‘natural’ way of understanding personhood,
of agreements producing moral persons who are not mere ‘shadows’ of
persons, are gestures at Pufendorf’s main point. Moral entities in general he
understood analogically with respect to physical entities. They are simu-
lacra in the moral world of the human substance of the natural world, body
and soul. And what makes human beings persons, argued Pufendorf, is that
each possesses a power of freedom even in the face of all the influences and
pressures and stimuli that exert themselves on the will. When a single
individual bears some moral person, that person still reasons and wills in
line with the capacities and limitations of the substance of the human
person on which it has been superadded. In the case of moral persons
compounded of other such persons, however, they must track the consti-
tutive facets of the human constitution in a more complex manner.
Pufendorf’s moral person of the state is not the same thing as Hobbes’s
person of the state. Its moral personality is not synonymous with fictional
personality but rather marks it out as the kind of entity that bears analogy
to the real human person. Persons are distinctive among animals by
virtue not merely of their ability to make decisions by a movement of
the will – which is compatible with physical determinism – but by their
capacity to determine their wills for themselves. Pufendorf’s moral
person of the state comes into being when the will of one person is
deemed to be the will of all; but this is a will that is free in the same
manner that the will of the natural person is free. As we will see,
Pufendorf has interesting things to say about bodies politic in his discus-
sion of the state, but more than that his conception of the person of the
state turns on his conclusions about the nature of its soul.
Not only has Pufendorf’s influential theory of the state not been
adequately understood by those who have written on the history of
the idea of the state in general; it has also too often been partially
52
Ibid., I, i, 15, p. 9/21. Richard Tuck rightly notes of this passage that Pufendorf is clearly
‘profoundly critical’ of Hobbes. Richard Tuck, The Rights of War and Peace: Political
Thought and International Order from Grotius to Kant (Oxford, 1999), p. 149.
misconstrued by those who have written about Pufendorf’s philosophy in

detail. His star ascended for a brief time in Anglophone intellectual
history around the turn of the millennium, and a number of valuable
studies placed him at centre stage. These tended to follow the first major
English-language monograph on Pufendorf for three decades, Kari
Saastamoinen’s The Morality of the Fallen Man (1995), in focussing on
the important themes of sociability, natural law and natural rights in
Pufendorf’s writings.53 In this respect, they gave plenty of attention
to Pufendorf’s category of moral entities. Richard Tuck’s The Rights of
War and Peace (1999) pursued the fascinating argument that the picture,
widespread in early modern political thought, of international relations as
a state of mutual suspicion and hostility was not an extrapolation from
hypotheses about individuals living in the state of nature, but rather that
the behaviour of these hypothetical agents inhabiting the state of
nature was an extrapolation from observations of patterns of inter-state
interaction in the international system. Tuck maintained that this was a
way of seeing the world made especially influential by Hugo Grotius.
Pufendorf, by contrast, ‘is the real anomaly in the modern natural rights
tradition, for he is the only writer generally associated with the tradition
who asserts anything like a rich theory of human natural sociability’.54
Pufendorf developed his conception of human sociability, Tuck argued,
because his view of international relations was ameliorative. As a young
man Pufendorf found himself caught up, as tutor to the child of the
Swedish ambassador to Denmark, in a war between those two countries,
lasting from 1658 until 1660, over the rights of passage in the Sound.
As Swedish ambassador to Paris, Grotius was put to work defending a
natural right to free passage on the sea. Pufendorf detected petty politick-
ing veiled under the cloak of natural-law talk. He thus came to argue that
all property and jurisdictional arrangements were contractual and
53
Kari Saastamoinen, The Morality of the Fallen Man: Samuel Pufendorf on Natural Law
(Helsinki, 1995). Saastamoinen has expanded illuminatingly on these themes in: Kari
Saastamoinen, ‘Pufendorf and the Stoic model of natural law’, in Grotius and the Stoa,
eds. Hans W. Blom and Laurens C. Winkel (Assen, 2004); and Kari Saastamoinen,
‘Pufendorf on natural equality, human dignity, and self-esteem’, Journal of the History of
Ideas, 71 (2009), pp. 39–62. István Hont’s essay, ‘The language of sociability and
commerce: Samuel Pufendorf and the theoretical foundations of the “four-stages”
theory’, in The Languages of Political Theory in Early-Modern Europe, ed. Anthony
Pagden (Cambridge, 1987), was formative in fostering interest in Pufendorf on
sociability: as Hont pointed out (at p. 253), it was for Pufendorf and his followers that
the label ‘socialism’ was first coined. Aside from Saastamoinen’s text, the only other
English-language book-length study of Pufendorf is Leonard Krieger, The Politics of
Discretion: Pufendorf and the Acceptance of Natural Law (Chicago, 1965). Krieger was so
intent on presenting the picture of a thinker so balanced in every respect that his
Pufendorf is, unfortunately, barely interesting at all.
54
Tuck, War and Peace, p. 13.
16 Introduction
artificial and none natural.55 All rights, he insisted to the contrary, are
merely conventional, and they must serve pacific ends, rather than foment
conflict. This was the political purpose of his doctrine of moral entities.
The moral entities that human beings have imposed on themselves are
linguistic constructions. ‘Although our moral language thus reflects our
interests, it does not directly reflect our personal interest . . . Instead, if
used properly, it always refers to whatever will in some way advance a
collective interest, or aid in the construction of patterns of social life’.56
Timothy Hochstrasser enlarged on the theme of language and its rela-
tionship to moral entities in his Natural Law Theories in the Early Enlighten-
ment (2000). His book, however, linked this subject more than Tuck’s had
to the gestation of the state in Pufendorf’s account. One of Hochstrasser’s
purposes was to argue that Pufendorf secularised the concept of natural
law: we still know natural law by use of the faculty of reason, but we do not
need to understand this law as the command of our maker. Central to
Hochstrasser’s argument is Pufendorf’s discussion of language in Book IV
of The Law of Nature. Pufendorf there objected to the notion that humans
know natural law innately, because this contradicts the techniques by
which children learn to communicate abstract ideas through language.
Children are directed to look at objects and pictures of objects; they learn
to attach names to these by repetition; inflection and conjugation of verbs
is acquired still later. But all principles of natural law are compound
constructions, and Pufendorf thought it ‘inconceivable that they could
be innate if the means to formulate them were absent’.57 At birth, he
argued, the mind is a tabula rasa, and the acquisition of language and
coaching of reason are processes that run concurrently. All ideas that we
eventually learn to express in language first depend on reflection on sense
data and its organisation; the mind’s facility to judge causes and effects is
independent of our senses, but is a second-order knowledge that we come
by through experience. Only when we have mastered speech are we in a
position to be able to articulate such knowledge:
The processes [explained Hochstrasser] by which we gain knowledge of the world
and learn the conventional signs with which to describe that world are mirror
images of each other: the framework offered by the conventions of language is a
central part of all reflection by the mind on the information proffered by the
senses, for it is the medium by which that data is communicated and organised,
and therefore dictates at least in part the structure of that thought.58
55 56
Ibid., pp. 142–144. Ibid., p. 149.
57
T. J. Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge, 2000),
p. 87.
58
Ibid., p. 89.
If natural law is a dictate of right reason, then, Pufendorf was arguing that
it was solely the product of second-order rumination on sense data, and
that it must furthermore ‘embody some principle that can be accurately
communicated to and agreed on by other people in a conventional
linguistic formula’.59 Thus Hochstrasser came to the crux of his expos-
ition of Pufendorf’s theory of natural law: ‘morality consists simply and
solely in the consensual imposition of the ethical judgements of men,
for natural law and linguistic conventions were formal correlates’.60
One individual cannot impose language; it is intersubjective. According
to Pufendorf, this intersubjectivity can only hold by means of a series
of compacts, the first in which people agree to ensure the standard
conventional meanings of terms, the second in which they bind them-
selves to using the words according to their previously agreed significa-
tions. Hochstrasser drew the conclusion that if all second-order
knowledge – and this includes moral knowledge – is attained in propor-
tion to linguistic capacity, and if this institution is ‘a matter of imposed
meanings affirmed by consensus’, then the lexicon of moral knowledge
is likewise ‘a matter of human imposition of arbitrary meanings on the
world and the fundamental principle of the law of nature is thus the same
synthetic sociability which first produced language’.61 According
to Hochstrasser, this amounted to the secularisation of natural law,
because ‘Pufendorf had removed any point of external moral reference
which transcended the legislative creations and obligations of human
nature’.62 The linguistic contracts, furthermore, supplied the template
for the covenants by which individuals initiate civil society: the moral
person of the state is created by consensus to uphold the fundamental
law of human sociability in increasingly complex societies.63
Hochstrasser’s study dealt captivatingly with the origins of sovereignty
and the state in Pufendorf, but that was as far as it went on those topics.
Ian Hunter’s Rival Enlightenments (2001) dedicated much more space to
reviewing Pufendorf’s political theory than had Hochstrasser. Hunter’s
thesis was that the religious wars in Germany in the early to mid seven-
teenth century gave rise to an ‘intellectual civil war’ between two rival
enlightenments. On the one hand, figures such as Gottfried Wilhelm
Leibniz attempted to reconcile the Christian sects metaphysically, by
grounding law and politics in ‘the sacralising pursuit of moral perfection,
with all of life’s offices finding their point of unity in the metaphysical
59 60 61 62
Ibid., p. 90. Ibid., pp. 90–91. Ibid., p. 92. Ibid., p. 105.
63
Avi Lifschitz, Language and Enlightenment: The Berlin Debates of the Eighteenth Century
(Oxford, 2012), pp. 48–50, adopts this account of Pufendorf on language, natural law
and political society.
18 Introduction
recovery of their transcendent intellection’.64 Pufendorf was the central

figure in the contending ‘civil philosophy’. Like Hochstrasser, Hunter
stressed Pufendorf’s secularising mission. Pufendorf considered that
faith and politics had to be kept quite separate if Germany were not once
again to succumb to internecine conflict. Pufendorf’s doctrine of moral
entities was designed, Hunter argued, precisely for this purpose. ‘For in
order to fashion a persona for the citizen that would allow individuals to
accede to their civil obligations independently of their Christian moral
personality, Pufendorf had to displace the Christian-metaphysical figur-
ation of the person with a pluralistic construction that was perhaps
unprecedented in early modernity’.65 Pufendorf set out ‘to destroy the
whole programme of deriving moral duties from a moral nature embed-
ded in the person and acceded to through reflection on divine or tran-
scendent reasons’.66 He ‘replace[d] the metaphysical conception of the
person as the substantial origin of all its offices and conditions with an
account of offices tied only to an instituted status or condition’.67
A single human being could now ‘be the bearer of several moral
personae – civil and ecclesiastical, commercial and familial, public and
private – each with its own duties arising from the purposes for which it
was instituted’.68
In deriving obligations from multiple principles or ends lying outside the individual
in the officia of civil life, Pufendorf’s civil anthropology places the array of duties to
which an individual might be subject beyond the reach of a single integrating
judgment to which they might aspire. This detranscendentalising and pluralising
of moral personhood holds the key to the separation of civil and religious offices
needed for the governance of newly deconfessionalised states. Pufendorf’s prime
purpose for arguing in this way is to deny that there is any transcendent moral
personality anchored in the nature of man – no moral or rational being, no imago
Dei, no Christian conscience – that might permit individuals to unify and rank all
their offices from a single point of rational insight.69
Civil sovereignty is the moral entity that individuals will in order to

secure the end of social peace. This compound moral entity consists
of two new moral personae: the sovereign and the subject. These persons
are ‘unknown in the natural condition’, and ‘incapable of carrying moral
or religious norms into the civil condition, where they might be used for
or against the state’.70 The persona of the citizen is ‘defined by the duty
of obedience’, and that of the sovereign by ‘the duty of care and
64
Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern
Germany (Cambridge, 2001), p. xi.
65 66 67 68 69
Ibid., p. 153. Ibid., p. 164. Ibid., p. 165. Ibid., p. 167. Ibid.
70
Ibid., p. 189.
protection’.71 Hunter stressed that Pufendorf was an even more thor-

oughgoing proponent of person as a role concept than Hobbes. By
contracting to constitute the state, individuals do not thereby give up
their natural sovereignty, but rather they create and impose sovereignty
when they covenant to institute the civil condition. Sovereignty in
turn transforms ‘the mode in which men will govern their liberty’.72
Once the moral person of the state has been established, ‘it sequesters
government from the moral judgment of individuals’.73 It simply is not
in the remit of the office of citizen, Hunter said, to determine whether
or not ‘the sovereign is legislating in accordance with natural law’,
for citizenship is an imposed not a natural condition.74
The weight of these three interpretations of Pufendorf, whatever
differences divide them, is to emphasise Pufendorf’s moral conventional-
ism.75 Their combined thrust on the topic of moral entities is summar-
ised by Hunter: ‘Pufendorf denies that the ontology of substances and
attributes has any relevance to the moral domain and the understanding of
personhood’.76 Yet while Pufendorf’s concept of moral person is cer-
tainly a role concept akin in some respects to Hobbes’s, it is also a
metaphysical one. Of Pufendorf’s argument that moral entities must
be conceived analogously to physical entities, that moral persons are
the substance of the moral world, and that we cannot even talk about
them unless we do so as if are substances, Hunter writes that it is
‘daring’ – as if Pufendorf was at risk of misleading his readers by so
writing.77 But as I hope to show in this book, the substance that subtends
moral persons is relevant to how Pufendorf conceives of the moral
domain. Pufendorf’s moral person is rooted in the individual substance
of rational nature – and so is his moral person of the state.
The book is structured in two parts. Part I attempts to accomplish that
task of criticism identified by Douchet: to disclose what resources and
reasons Pufendorf had that enabled his analogy of the state as a moral
person to come into being. To this end it uncovers the particular con-
ception of the person adopted by Pufendorf, and reveals his purposes
in so configuring the state. It examines Pufendorf’s theory of the state
71 72 73
Ibid., p. 186. Ibid., p. 188. Ibid., p. 192.
74
Ibid. For a concise presentation of Hunter’s argument, see his ‘Natural law as political
philosophy’, in The Oxford Handbook of Philosophy in Early Modern Europe, eds. Desmond
M. Clarke and Catherine Wilson (Oxford, 2011), esp. 486–496.
75
For Hunter on Hochstrasser, see Ian Hunter, ‘The recovery of natural law:
Hochstrasser’s history of morality’, Economy and Society, 30 (2001), pp. 354–367. For
Hochstrasser on Hunter, see T. J. Hochstrasser, ‘Response to Ian Hunter’, in Teaching
New Histories of Philosophy, ed. J. B. Schneewind (Princeton, 2004).
76 77
Hunter, Rival Enlightenments, p. 164 (my emphasis). Ibid., p. 165.
20 Introduction
in context, detailing, on the one hand, the sources of his most crucial
concepts, and, on the other, the particular political situations that gave
him reason to employ and refashion them in order to address the prob-
lems that demanded his attention. The focus of this part of the book is
Pufendorf’s intentions in writing what he did, and the way he handled the
intellectual materials he felt best enabled him to do what he wanted
to do.78 Part II, by contrast, looks in various directions in order to detect
the stimuli given by Pufendorf’s theories of the state and its character to
political discourse in the years after his wrote his own works. Pufendorf
and his concepts were interpreted and appropriated for different argu-
mentative purposes by different authors writing in different political
contexts and in different idioms.79 Each chapter in this part of the book
reconstructs a particular context helping to structure and inform the
predominant ways in which Pufendorf was read and the use to which
his theories and his vocabulary were put. My claim is not that each
of these contexts shaped a single ‘tradition’ of the uptake of Pufendorf’s
theory of the moral person of the state, but that each context gave rise to
a small and identifiable cluster of uses of Pufendorfian ideas, and that
each cluster has its own distinctive character, because of the family
resemblances between the assorted uses.80 Duncan Bell’s distinction
between ‘knowledge-practices’ and ‘knowledge-complexes’ is helpful
here. Knowledge-practices are ‘articulations of thinking’ encompassing
78
Methodologically, I have, of course, been much influenced by Skinner, especially
Quentin Skinner, Visions of Politics, vol. 1, Regarding Method (Cambridge, 2002). But
I have also benefitted from the rich array of scholarship on interpretive approaches to
intellectual history, and here I want to acknowledge how much in particular that I have
learned from: James Alexander, ‘An essay on historical, philosophical and theological
attitudes to modern political thought’, History of Political Thought, 25 (2004),
pp. 116–148; Annabel Brett, ‘What is intellectual history now?’, in What is History
Now?, ed. David Cannadine (Basingstoke, 2002); Jonathan Havercroft, ‘Skinner,
Wittgenstein and historical method’, Paragraph, 34 (2013), pp. 371–387; Peter
L. Janssen, ‘Political thought and traditionary action: The critical response to Skinner
and Pocock’, History and Theory, 24 (1985), pp. 115–146; Stephanie Lawson, ‘Political
studies and the contextual turn: A normative/methodological critique’, Political Studies,
56 (2008), pp. 584–603; Melvin Richter, The History of Social and Political Concepts
(Oxford, 1995); Robert Wokler, ‘The manuscript authority of political thoughts’, in
Rousseau, the Age of Enlightenment, and their Legacies, eds. Bryan Garsten and Christopher
Brooke (Princeton, 2012).
79
On the interpretation and appropriation of texts, see Tony Burns, ‘Interpreting and
appropriating texts in the history of political thought: Quentin Skinner and
poststructuralism’, Contemporary Political Theory, 10 (2011), pp. 313–331. On idioms:
J. G. A. Pocock, Political Thought and History: Essays on Theory and Method (Cambridge,
2005), pp. 77–79.
80
Tradition is a complicated thing. James Alexander, ‘A systematic theory of tradition’,
Journal of the Philosophy of History, 10 (2016), pp. 1–28, brings it into order while also
making clear how complicated it is.
‘theories, arguments, conceptual schemes, [and] specialized vocabular-

ies’, while knowledge-complexes are ‘the ecologies – institutions, net-
works, organizational structures’ in which ‘knowledge is fertilized,
rendered intelligible and disseminated’.81 The moral person of the state
was a theory or knowledge-practice whose articulation in different
knowledge-complexes meant that it was put to different uses and
acquired different meanings in different contexts. These are the subjects
of the second part of the book.
Part I comprises two chapters. Chapter 1 provides an account of what
was distinctive about the kind of person that Pufendorf would go on to
make the archetype of the moral person of the state. This person is the
human agent free in virtue of a particular configuration of the ‘spiritual’
faculties of intellect and will. The configuration was elaborated and
defended by Jesuit theologians writing towards the end of the sixteenth
century and the beginning of the seventeenth. It owes its principal
enunciation to Luis de Molina (1535–1600) and Francisco Suárez
(1548–1617), particularly the latter. Molina and Suárez argued that the
cause of human liberty is the intrinsically free faculty of will, but that its
root is the intellect, without the cognitions and reasons supplied by which
the will is unable to bring itself to act. Although there are several good
accounts in the secondary literature of the details of how these Jesuit
writers construed the psychological economy of freedom, we lack one
that answers the question: what were their intentions in depicting the
‘rational soul’ in the manner in which they did? The chapter provides an
answer in two parts. It first examines the particular debate in which
Molina and Suárez were engaged, namely, the controversy de auxiliis,
or the disagreement between Jesuit and Dominican theologians concern-
ing the distribution of causality between God and the human individual
in determining human agency. It then situates the position of Molina and
Suárez on free will within the broader set of theological commitments of
the Society of Jesus, revealing the profound importance especially of the
sacrament of penance in shaping the Jesuit worldview.
Chapter 2 begins by showing why what has been called the ‘Molinist’
theory of liberty was widely adopted by Lutherans in Germany. One such
writer was Pufendorf, who avowed just such a conception in his theo-
logical works. Furthermore, his text on the law of nature and nations
paints a picture of the constitution of the human agent and the respective
roles of intellect and will in giving rise to free human agency that is in
all its essentials identical to the Jesuit position. It is the rational soul,
81
Duncan Bell, ‘Writing the world: Disciplinary history and beyond’, International Affairs,
85 (2009), pp. 3–22, at p. 12.
22 Introduction
thus portrayed, which is elemental to Pufendorf’s conception of the

person. The configuration of the free human being is thus at the heart
of the interpretation of Pufendorf’s political theory offered in this book.
When Pufendorf described the state as a moral person, he intended to
emphasise that it was free in the same way that an individual human
being was free, and therefore that it must decide to act by virtue of the
same relation of the cognitive faculties. In the properly constituted state,
Pufendorf argued, there can be only one will: when individuals subordin-
ate their wills to the will of one person, they have instituted sovereignty,
and the bearer of that one will is the sovereign. Yet Pufendorf argued that
the moral person of the state comes into being when, in addition to will,
there also emerges a common intellect. This intellect, he maintained,
could be taken to be the intellect of the person of the sovereign. Yet he
thought that a people with any sense would lodge it elsewhere, such as in
a superintending council. Thus the root of the freedom of the sovereign
can and ought to be located outwith sovereign will, operating as an
enabler and disabler of the acts of will of the person of the state. Far
from being an absolutist in the Hobbesian mould, then, Pufendorf
developed a constitutionalist conception of the personality of the state:
what I call a theory of facultative sovereignty.
Why? I argue that the type of state that Pufendorf had in mind was the
composite state represented by the Holy Roman Empire, consisting of
many different communities divided by religion but sharing the same
sovereign, the Catholic Holy Roman Emperor. There lurks in the back-
ground of Pufendorf’s philosophical considerations of the state, as
Hunter rightly recognised, the recent experience of the Thirty Years’
War, which had pitted these communities against one another and, in
Pufendorf’s eyes, had opened the German lands up to foreign intrusion
and predation. What was required for the internal harmony and external
security of this intricate and precarious political arrangement, Pufendorf
considered, was a conception of sovereignty as proceeding, as he was to
put it, from the same soul, and thus he located sovereignty in the will of
the emperor. But the emperor’s Roman Catholicism was almost as
threatening to the Protestant communities of the empire as internal
division and its exploitation by rapacious foreign powers. Pufendorf
wanted to put checks on the Holy Roman Emperor’s sovereignty, and
he did this by arguing that the longstanding councils that represented the
communities of the empire represented so many intellects of this body,
each supplying various conditions sine qua non for the exercise of
sovereign will.
Part II comprises three chapters, which survey certain aspects of the
fate of the concept of the moral person of the state. As Skinner notes in
his genealogy of the modern state, it was in the emerging field of the law
of nations that the concept was most important, and Chapter 3 provides a
tour of its uptake in that sphere. Skinner remarks that the most significant
of the theorists who adopted it in the eighteenth century was Emer de
Vattel (1714–1767), but we can add to his list two others of at least equal
standing: Christian Wolff (1679–1754), writing before Vattel, and
Immanuel Kant (1724–1804), writing after him. The significance of each
of these theoreticians for thinking about international relations has long
been appreciated, but the role of the concept of the moral person of the
state in the system of each has not. As should be expected of three
authors of such immense power, the concept intersects with each writer’s
wider structure of ideas and is put to work in different ways. All three,
however, use it in order to stress that human persons and states are
analogous in crucial but different respects. Wolff used the concept
against Hobbes, who had, he considered, been too quick to equate the
law of nature and that of nations, regarding them both as the law that
natural persons find themselves under in a state of nature. Moral persons
are persons but they are not natural persons, Wolff argued, and this must
then alter the basis of the laws to which they are subject. Vattel main-
tained, following Pufendorf, that states are to be considered as persons
because they possess the faculties of intellect and will. However, for his
own reasons he railed against the coherence of the kind of composite
polity that Pufendorf’s theory of the state had been especially designed
to accommodate. He thus invested his sovereign with the intellect
and will of the person of the state. Pufendorf’s constitutionalist protec-
tions against overweening sovereignty disappeared, so that Vattel’s vision
of international politics was far more Hobbesian than that of Wolff.
Kant also described the state as a moral person. What he took from
Pufendorf’s rich account of moral personality was that it signified that
action and therefore responsibility for it must be imputed to the person.
In his account this means that the state has a capacity for autonomy,
meaning an ability to respond to the demands of morality. As we will see,
Wolff arrived at an understanding of states as being subject to laws that
are conventional; Vattel of states as being subject to natural laws of self-
protection; and Kant of states as being subject to universal laws of
morality incumbent on any agent in possession of reason. The moral
person of the state, by the end of the eighteenth century, had become
enmeshed in three rival normative theories of international politics that
between them provide something of a conspectus of the traditions of
international theory that have dominated the field ever since. Despite the
variety, they have in common that they were reflections offered on
international ethics within an emerging professional language on public
24 Introduction
law on the European continent, and thus I call them collectively

Continental appropriations of the moral person of the state.
Chapter 4 moves westward from the European continent to the
Atlantic Ocean and the so-called first British Empire that was exercised
over colonists in North America. The chapter presents evidence of an
engagement with Pufendorf that had genuinely world-historical conse-
quences. The first part of the chapter is given over to an account of how
Pufendorf’s theory of the composite polity – the ‘problem space’ in
response to which he formulated his broader theory of the moral person-
ality of the state – figured in the dissolution of the empire. A number of
important figures in America’s revolutionary history – John Adams and
Thomas Jefferson among them – came to conceive of the British Empire
as a composite polity akin to the Holy Roman Empire described by
Pufendorf. They also detected in Pufendorf’s writings the grounds
for resisting the sovereignty of the British Parliament. I should state
straightaway that, of course, such a multifaceted event as the American
declaration of its independence does not lend itself to a single explan-
ation. Nonetheless, Pufendorf’s theory of the moral person of the state,
and specifically the model of sovereignty developed as part of that theory,
played an important and hitherto unrecognised role in what was the
first act in the global story of decolonisation. In the second section of
the chapter, we turn to the construction of a new composite polity, the
American constitutional republic. I show that the leading lights in its
design, the authors of The Federalist Papers (1787–1788), developed their
account of the separation of powers between legislative, executive and
judicial arms of government by way of certain commentaries written
on Pufendorf’s political theory by moral philosophers associated with
the Scottish Enlightenment. The person of the federal state in America
had intellect, will, and judgment, too, and these were to be checks on one
another in much the same way that Pufendorf had argued that the
intellect was an axiomatic check on the power of will in his state. I call
these different appropriations of Pufendorf in the context of exploring
composite polities Atlantic appropriations.
In Chapter 5, I turn to the historiography of my subject, the state as
persona moralis. The subject received what is still its most extensive and
detailed treatment in the fourth and final volume of the great German
historian Otto von Gierke’s The German Law of Fellowships (1913,
English translation 1934). Any book on the history of the idea of the
state simply must engage with Gierke’s arguments, which is one of the
reasons that I do. But I have written about Gierke in such detail princi-
pally because his interpretation of Pufendorf’s theory of the state and that
of his successors has been so influential that it can be said to have
inaugurated and itself to exemplify another cluster of interpretations of

Pufendorf. For Chapter 5 helps to contextualise Skinner’s reading
of Pufendorf, according to which Pufendorf’s moral person of the state
is the same as Hobbes’s fictional person of the state, both of which are
in effect modelled on corporate persons, or persons by fiction of law.
This was Gierke’s argument, and it became widely accepted particularly
in an Anglophone context thanks to the enormous influence he wielded
on the study of the history of political thought in Britain. Gierke set the
terms in which the idea of the state as a person has been couched for
much of the twentieth century and our own, and thus we are justified
in calling him the founder of a cluster of what I call in this book
Anglo-German interpretations of the moral person of the state. However,
Gierke’s history was more polemical than has usually been appreciated.
Intriguingly, he also went wrong in his appraisal of Pufendorf just at the
moment that he appeared to be creeping up on the rediscovery of the
theory of facultative sovereignty in Pufendorf’s state.
The book addresses itself to two tasks, then. First, it seeks to illuminate
an aspect of the political thought of a writer whose stature and signifi-
cance we are beginning to recuperate – an aspect that I think has been
wrongly interpreted. Second, it supplies an intellectual history of a par-
ticular depiction of the modern state – that it is a ‘moral person’ – that has
been pivotal in the history of political thought for much of the modern
period. In the Conclusion, we will return to the contrast between
Hobbes’s fictional person of the state and Pufendorf’s moral person of
the state, in order to bring out some further implications. But there is
a lot of ground to cover first. Let us begin with the Jesuits.
1 The Constitution of the Free Person
During the late sixteenth century, a handful of Iberian Jesuit theologians

posited an account of human agency that stressed human freedom even
in the teeth of God’s prodigious control over his creation. That picture of
human agency would go on to inform the conceptualisation of one of the
most important loci of the relations, interactions and tensions between
the individuals so conceived: the modern state. One of my purposes in
this book is to show how this account of how human persons are free was
appropriated by Pufendorf in the seventeenth century in order to breathe
life into what he called the moral person of the state, and then to go on to
disclose the role that Pufendorf’s conceptualisation would play in some
significant subsequent discussions of the state and its affairs.
This chapter tells the first instalment of the story, about a particular
way of understanding how human persons were constituted as possessing
a capacity for rational freedom secured by a certain interaction between
the cognitive faculties of intellect and will. This theory of free agency we
owe to some early Jesuits, and none more so than Luis de Molina
(1535–1600) and Francisco Suárez (1548–1617), with whom this
chapter is primarily concerned.
The plot thickens gradually. In Section I, I give an account of Molina’s
and Suárez’s theory of human liberty, paying particular attention to the
roles of intellect and will in securing freedom. Section II elucidates the
immediate intellectual context that occasioned their interventions. This
was the de auxiliis controversy on God’s grace, its resistibility or otherwise,
and what this meant for human freedom. Against their Dominican inter-
locutors, the Jesuits took a view of God’s grace that granted to human
beings a self-mastery so extensive as to risk, in the Dominican view, the
denial of God’s sovereignty over his creation. In Section III of the chapter,
the arguments marshalled by Molina and Suárez in this debate are con-
textualised still further, in terms of the wider Jesuit worldview. It focuses
on the pastoral mission of the Society of Jesus and the special weight that
was attached to the sacrament of penance. The centrality of confession in
Jesuit practice would colour the views of the Society’s members on
29
30 Part I
matters relating to the expiation of sin, but also to truth, to property, to

right and to causality. All of these views, in turn, helped to sustain the
Jesuit commitment to free will, and I trace the respects in which they did.
This sets the scene for the discussion in the subsequent chapters of the
political theory of the state in Pufendorf and his successors.
Some prefatory points are in order. All stories must begin somewhere,
and this one goes back as far as providing some contextual detail in
respect of the Society of Jesus, which on the face of it has little to do with
the state or with politics. This, however, is essential in order to grasp the
Jesuit commitment to explicating the structure of free will, and thus it is
relevant to the structure of the state in Pufendorf’s political theory,
examined in Chapter 2. Another caveat on the point of departure: an
alternative way of contextualising Molina and Suárez on human freedom
would have been to trace the lineage of their varied points about the will,
and my manner of presentation certainly does risk overstating their ori-
ginality. Their notes were copious; they would never have claimed that on
all points were they advancing hitherto unarticulated ideas. The notion of
will as a kind of human power has ancient roots.1 And debates about the
relative priority of intellect and will in determining human activity were
never so subtle and sundry as they were in the late thirteenth century.2 It
is clear, nonetheless, that Molina and Suárez did work up systematic and
full accounts of human freedom and the roles of the cognitive faculties in
this that do not reduce at all simply to those of any of their forebears.3
And it is clear, also, that while researchers have identified antecedents of
the Jesuit theory of liberty in, for instance, the writings of John Duns
Scotus, far less has been done to ask why the Jesuits were so intent on
defending free will, which is what I seek to do here.4 I must also beg the
1
Michael Frede, A Free Will: Origins of the Notion in Ancient Thought (Berkeley, CA, 2012).
2
For the arguments, see especially Bonnie Kent, Virtues of the Will: The Transformation of
Ethics in the Late Thirteenth Century (Washington, DC, 1995), pp. 94–149; and P. S.
Eardley, ‘The foundations of freedom in later medieval philosophy: Giles of Rome and his
contemporaries’, Journal of the History of Philosophy, 44 (2006), pp. 353–376. For some
context, J. M. M. H. Thijssen, Censure and Heresy and the University of Paris, 1200–1400
(Philadelphia, PA, 1998), pp. 40–56; and Tobias Hoffmann, ‘Intellectualism and
voluntarism’, in The Cambridge History of Medieval Philosophy, vol. 2, ed. Robert Pasnau
(Cambridge, 2009).
3
The Molinist theory of liberty differs in significant ways from medieval accounts of free
will, as acutely parsed and reassembled in C. G. Normore, ‘Picking and choosing: Anselm
and Ockham on choice’, Vivarium, 36 (1998), pp. 23–39; and Henrik Lagerlund,
‘Buridan’s theory of free choice and its influence’, in Emotions and Choice from Boethius
to Descartes, eds. Henrik Lagerlund and Mikko Yrjönsuuri (Dordrecht, 2001).
4
On Molina’s textual debts to Duns Scotus, see Jean-Pascal Anfray, ‘Molina and John
Duns Scotus’, in A Companion to Luis de Molina, eds. Alexander Aichele and Mathias
Kaufmann (Leiden, 2014).
The Constitution of the Free Person 31
patience of those readers who might wonder why I hold over the
discussion of dominium (ownership or mastery) to the end of the chap-
ter, when it is so central to how the Jesuits thought about human action,
and the most obviously political aspect of such thinking. My response is
that it requires the same contextualisation in terms of the Jesuit attitude
to the sacrament of penance as does the analysis of free will, for both –
Jesuit notions of freedom and of dominium – are closely related. To
paraphrase a favourite phrase of some of the Scholastics dealt with here,
what comes first in intention must sometimes be last in execution.
I should also remark at the outset that I have avoided two terms that
are frequently deployed to label accounts that allot priority either to
intellect or will in determining human freedom, namely, intellectualism
and voluntarism, respectively. The term voluntarist, for instance, is often
predicated of writers who argue that ‘human beings are ultimately free
because they possess wills that can determine their own actions from a
spontaneous, formal principle for self-motion located in the will itself’.5
But it also variously denotes a general emphasis on volitional or affective
aspects of human nature; or the basis of law being the command of a
sovereign, denominative will; or God’s absolute power to will anything
that does not involve him contradicting himself.6 Given that this book
is concerned with psychology, ethics, law and theology at different
points, and also that a clear account can be given of the relevant concepts
without resort to these labels, I sidestep them. A final terminological
proviso: after all the indications in the Introduction that the book
will seek to handle the concept of ‘person’ with some sensitivity, readers
have a right to think that I use it very loosely in this chapter, where it
might simply appear to be synonymous with ‘human being’ or ‘individ-
ual’ or ‘free agent’ (which are all other terms I use when writing about
the same thing). I will say more at the end of the chapter to fill out and
justify my deployment of ‘person’ in this chapter; and the real pay-off will
come in Chapter 2, when we see how Pufendorf modelled his persons –
including his person of the state – according to the pattern of the
ensouled being elaborated by Molina and Suárez. Without further delay,
we turn to them now.
5
Eardley, ‘Foundations of freedom’, p. 355.
6
For an example of each, see Vernon J. Bourke, History of Ethics (New York, 1970),
vol. 1, p. 138; Jean Bethke Elshtain, Sovereignty: God, State, and Self (New York, 2008),
p. 49; John Milbank, Theology and Social Theory: Beyond Secular Reason (London, 1990),
passim.
32 Part I
I. Molina and Suárez on Free Will

Molina’s views on human free choice are put forward in parts one to four
of his On the Concord of Free Choice with the Grace of God of 1588. Suárez’s
mature thoughts are presented most systematically in the nineteenth of
his Metaphysical Disputations (1597), but relevant reflections can also be
found in works published posthumously, such as his commentary on
Aristotle’s De anima, and his commentary on the moral sections of
Thomas Aquinas’s Summa theologiae, divided into tractates on goodness
and badness, on human ends, on the voluntary and involuntary, and on
grace. The very similar accounts of human free agency which Molina and
Suárez developed are frequently described together under the label of the
‘Molinist’ theory of freedom in the secondary literature, and I follow
suit.7 There are important differences, nonetheless, between the two
writers on free will. The following reconstruction focuses principally on
Suárez’s account. This would go on to be the most widely disseminated
presentation of the Molinist theory of liberty in seventeenth-century
Europe, and the one eventually adopted by Pufendorf. It was also the
more systematic. Despite appearing after Molina’s discussion, however,
it was also, as we shall see, less radical.
Suárez began his analysis of freedom by elucidating the difference
between ‘free’ and ‘natural’ agents. A natural agent is determined to
act when all the ‘requisites’ of its acting have been ‘posited’ or given
on any occasion. They ‘act necessarily once the things required for acting are
present’.8 By contrast, a free agent (God, an angel, a human being) ‘is able
to act and able not to act, given that all the things required for acting have
been posited’.9 Consider Sean Greenberg’s playfully helpful illustration
of the distinction:
Provided that all conditions are normal and barring miracles, if one turns the
knob on one’s stove, the burner will light. The stove will fail to light only if not all
the conditions are normal – for example, if the gas is not on, or the pilot light is
out – in other words, if there is some ‘requisite’ of the stove’s lighting that is not in
7
As in, for instance, Robert Sleigh, Jr., Vere Chappell and Michael Della Rocca,
‘Determinism and human freedom’, in The Cambridge History of Seventeenth-Century
Philosophy, vol. 2, eds. Daniel Garber and Michael Ayers (Cambridge, 1998).
8
Francisco Suárez, On Efficient Causality: Metaphysical Disputations 17, 18, and 19, trans./
ed. Alfred J. Freddoso (New Haven, 1994), XIX, i, 1, p. 270. (References to this text are
to disputation, section, subsection and page number, respectively.) The editor’s writings
on Suárez’s theory of causality are very illuminating. For Suárez on efficient causality, see
Alfred J. Freddoso, ‘Comment’s on Michael Murray’s “Leibniz on divine foreknowledge
of future contingents and human freedom”’, unpublished paper, www.nd.edu/~afreddos/
papers/murray.htm, cited here with permission.
9
Suárez, Efficient Causality, XIX, iv, 10, p. 321.
place in the actual situation . . . In contrast, if a human being sees a tasty piece of
cake, and desires it, she is not determined to eat the cake, but must choose to eat
it. Although the sight of a tasty piece of cake is a necessary condition for the agent
choosing to eat the cake, it is not a sufficient condition, for the agent must decide
that the cake is indeed something that she wants.10
Animals are also natural agents even though they operate with a kind of
voluntariness. They act on the basis of their cognitions and with a certain
wilfulness. But the voluntariness of the actions performed by animals is
entirely compatible with there being a causal chain which determines
the natural agent’s will, as a purely appetitive power, to one thing.11
The distinction between natural and free agents, argued Suárez, turns
on the fact that free agents are indifferent to their causes, while natural
agents are not. Natural agents are naturally necessitated by their causes.
The indifference attributed to free agents saves them from being deter-
mined to one effect by their causes. Indifference in Scholastic philosophy
was a technical term that implied nothing of contemporary connotations
of lack of interest, concern or sympathy on the part of an agent towards
some object. Rather, in this technical terminology indifference meant a
disposition on the part of an agent that saved it from being determined to
act in a particular way by the various causes pressing on that agent.
Suárez set about locating the source of this indifference of free agents
to their causes. Free agents, he contended, possessed two ‘spiritual’
faculties that distinguished them from their natural counterparts:
intellect and will. Together these faculties made up the ‘rational soul’,
what would in later works of psychology be called the mind.12 The
question was whether one or both of these faculties were themselves
‘formally’ free, and thus whether one or both secured agential liberty.
Suárez argued that the intellect was not a free faculty because of the
nature of its proper object, the truth. ‘The formal object of the intellect is
the truth, and truth and falsity cannot exist in the same object, since truth
consists in something indivisible . . . And so the intellect – both of itself
and as regards the merit of its object – is always determined to one effect
with respect to the species of its act’.13 The intellect is not a free faculty
in that it must naturally acquiesce to truth and baulk at falsity; it cannot
determine itself because its object determines it. A proposition is either
10
Sean Greenberg, ‘Leibniz against Molinism: Freedom, indifference, and the nature of
the will’, in Leibniz: Nature and Freedom, eds. Donald Rutherford and J. A. Cover
(Oxford, 2005), p. 219.
11
Suárez, Efficient Causality, XIX, ii, 8–9, pp. 286–288.
12
Fernando Vidal, Sciences of the Soul: The Early Modern Origins of Psychology (Chicago,
2011), p. 74.
13
Ibid., XIX, v, 16, p. 338.
34 Part I
true or false, but it cannot be both. When faced with a true proposition,
the intellect assents; when faced with a false one, it dissents. The human
intellect is fallible, and so it will necessarily assent to what appears to be
true and dissent from what is false. Sometimes, when the object is
imperfectly proposed or apparent, the intellect may remain undeter-
mined. But there is no need for the intellect to be able to move itself to
assent to a proposition that appears both true and false; and because
there is no need for such a power, the intellect was not given it.
By contrast, the will is not compelled to its proper object, which is the
good. ‘[T]he object of the will is the good, and one and the same object
can be simultaneously both good and evil – that is, both fitting and
unfitting in relation to different things or under different aspects.
And so even if the object is perfectly proposed or cognised, the appetitive
faculty can be indifferent . . . with respect to pursuing or rejecting such an
object’.14 Medicine, for example, can be good insofar as it imports
health and bad insofar as it tastes disgusting. The dual verdict is not
the simple result of lazy or imperfect cognition. The medicine really is
good with respect to one attribute and bad with respect to another.15
The will is not impelled towards any specific good or end. ‘By the very
fact that neither of the objects is proposed as necessary, the will is able
not to love either of them; therefore, it is also indifferently able to love
either one of them while dismissing the other’.16 I shall say more about
the will’s specification of its object shortly. What must be stressed at
this point is that, on Suárez’s account, the will must determine itself to
its particular end while the intellect cannot. ‘For the intellect cannot
be undetermined with respect to its own act for any reason other than
that the object is proposed in an imperfect way. By contrast, even with
respect to a precisely proposed object, the will can remain indifferent’.17
As a self-determining faculty, the will secures the indifference essential to
constituting a free agent. The will is therefore the locus of freedom on
this Molinist account. It is the site of ‘formal’ freedom in the human
agent because it is the power that the agent has to choose indifferently
between different particular ends.
Whenever a person does something voluntarily, it occurs as two acts.
The first is the act of decision, or what, now following an established
Scholastic vocabulary, Suárez called the ‘elicited act’ of the will.
‘Voluntariness in an elicited act of will comes to nothing else than being
14
Ibid., XIX, v, 16, p. 338.
15
The example is taken from Sydney Penner, ‘Free and rational: Suárez on the will’, Archiv
für Geschichte der Philosophie, 95 (2013), pp. 1–35.
16 17
Suárez, Efficient Causality, XIX, vi, 13, p. 356. Ibid., XIX, v, 15, p. 338.
an act that, in coming immediately from the will, is inherently self-willed

through a virtual and inherent self-reflexion’.18 This has as its goal an
‘imperated’ or commanded act of the will, the putting into action of
the elicited act, which takes place as an effect of the elicited act that
occurred inside the will. The first act is intrinsically voluntary, the second
extrinsically voluntary.19
There are, nonetheless, certain limitations, according to Suárez, on the
‘virtual reflexivity’ of the will. The will cannot desire something as
something bad or evil.20 Furthermore, agency in general for Suárez, as
we have seen, always has need of ‘requisites’. For free agents, these
requisites will consist both of cognitions of objects and also reasons for
action. Before something can even be an object of the will it must first be
an object of the intellect, as something cognised. The intellect considers
the nature and properties of any apprehended object in what Suárez
called its ‘speculative’ mode of acting. Moreover, the will cannot move
an agent to action for no reason at all, and it is the role of the intellect, as
the reason-seeking faculty, to provide practical judgments of what that
agent might do. This is the intellect’s ‘practical’ mode of acting, in which
it shows the will how it ought to act.21 Acts of the intellect thus supply the
antecedent conditions of free will; they are themselves requisites of free
acts of the will. It makes no difference, then, according to Suárez,
whether we want to call intellect the ‘root’ or ‘presupposition’ or (what
we will see in Chapter 2 is an important locution in respect of Pufendorf’s
adoption of the Molinist account) ‘necessary condition’ of freedom.22
Suárez insisted that none of this was to say that the intellect is free.
Its end is the truth, and the truth determines its operations. The only
kind of indifference that can be attributed to the intellect is ‘objectival
indifference but not formal indifference’:
For the judgment of reason is the foundation of the will’s act of free choice
because, by virtue of its own perfection and breadth, that judgment proposes
within the object various aspects of fittingness and unfittingness; and it likewise
proposes the means to the end not as necessary in all cases but instead as
18
Quoted in Thomas Pink, ‘Suárez, Hobbes and the Scholastic tradition in action theory’,
in The Will and Human Action: From Antiquity to the Present Day, eds. Thomas Pink and
M. W. F. Stone (London, 2004), p. 131.
19 20
Suárez, Efficient Causality, XIX, v, 17, p. 339. Ibid., XIX, viii, 15, p. 374.
21
On the speculative and practical modes of acting of the intellect in Suárez, see M. W. F.
Stone, ‘The scope and limits of moral deliberation: Recta ratio, natural law, and
conscience in Francisco Suárez’, in Imagination in the Later Middle Ages and Early
Modern Times, eds. Lodi Nauta and Detlev Pätzold (Leuven, 2004), p. 39. See also
John Finnis, Natural Law and Natural Rights (Oxford, 1980), pp. 337–8.
22
Suárez, Efficient Causality, XIX, v, 21, p. 341.
36 Part I
indifferent, since it discerns the level of usefulness and difficulty of the means
and at the same time discovers or proposes other means.23
Still, the requisites for the will’s operating must include grounds for acting
supplied by the intellect, although no judgment of the intellect deter-
mines the willing of a given object. Practical judgments are not judg-
ments that such and such must be done, but they are judgments that such
and such is sufficiently good to be loved by the will. The will may choose
not to pursue the object, even though the judgment is sufficient for
the will to be able to pursue it. Suárez put the point in slogan form in
his On the Voluntary and the Involuntary: the will ‘is determined by the
intellect with respect to sufficiency but it determines itself with respect to
efficacy’.24
Where the practical judgment of the intellect cognises only one reason
to act, a free agent has ‘freedom of contradiction’, so that ‘as often as it is
able freely to exercise a given act, it is also able, by means of some other
positive act, to will that absence – that is, to will against exercising such
an act’.25 Thus, where the intellect provides only one reason for action,
the will still has the freedom to will not to act on that basis. Where more
than one reason for acting is provided, or where there are reasons for
acting in different ways, the free agent has ‘freedom of contrariety’, which
is freedom to act or not on the basis of any of the posited reasons.
Suárez’s account of the psychological economy of free agency largely
resembled that of his predecessor Molina, except for two substantial
differences. First, the role Molina attributed to the intellect in free choice
was even more attenuated than it was in Suárez. As Annabel Brett has
shown, the clear-cut opposition of natural and free agency that orientated
Suárez’s theory is not to be found in Molina. For Molina, liberum
arbitrium is not something that ‘rationals’ possess but ‘naturals’ do not.
He rather conceived of liberty as belonging to different creatures in
different degrees as if along a continuum. Although, he wrote in his
Concordia, ‘we must not countenance in brute animals even that freedom
that . . . we claimed to exist in insane people and in children26 . . . none-
theless it seems highly likely that in brute animals there is a certain trace
of freedom with regard to some of their movements, so that it is in their
23
Ibid., XIX, v, 22, p. 342.
24
Francisco Suárez, ‘De voluntario et involuntario’, in Opera omnia, vol. 4, ed. Antoine
Théophile Duval (Paris, 1865–78), VIII, iv, 11, p. 264: ‘ab intellectu determinatur, quasi
quoad sufficientiam; ipsa vero se determinatur quoad efficacium’.
25
Suárez, Efficient Causality, XIX, iv, 9, p. 320.
26
Molina considered that children and insane people are ‘in potency’ images of God
whereas animals are not. For discussion, see Diego Alonso-Lasheras, Luis de Molina’s
De Iustitia et Iure: Justice as Virtue in an Economic Context (Leiden, 2011), p. 106.
power to move in one direction or another’.27 However, Molina did not

wish to attribute intellects to non-rational creatures. He therefore wrote
only of certain ‘cognitions’ rather than the faculty of the intellect as
supplying antecedent conditions for the operation of the will.28
Second, Molina’s classic definition of free choice includes a clause that
Suárez had excluded from his own. According to Molina, ‘that agent is
called free which, when all requisites for acting having been posited, is
able to act and not act, or so to act for one thing that it is able also to act for
the contrary thing’.29 Although Molina insisted that ‘one cannot operate
except by a previous judgment of reason’, he considered that a practical
judgment in favour of one option could form the basis of an act of will
that enacted precisely the opposite of that judgment.30 For Suárez, this
was tantamount to the suggestion that one could act on the basis of
something uncognised, which was impossible. Foreshadowing the argu-
ment of Chapter 2, this difference is critical. The limitations that Suárez
posited of the will in relation to the intellect would ultimately be vital to
the constitutionalist theory of the state elaborated by Pufendorf.
II. The Immediate Context: The Controversy de auxiliis

Molina’s faculty psychology, and its more moderate Suarezian cousin,
were formulated as part of the interventions each theologian made during
the controversy de auxiliis. This was a dispute between the Dominican
and Jesuit orders that lasted for a quarter of a century. It concerned
questions about human cooperation in justification and human initiative
in God’s bestowal of his grace, questions which had been occasioned
by the Protestant Reformation but which remained unresolved at the
Council of Trent.31
27
Luis de Molina, On Divine Foreknowledge (Part IV of the Concordia), trans./ed. Alfred
J. Freddoso (Ithaca, NY, 1988), p. 89.
28
Annabel Brett, Changes of State: Nature and the Limits of the City in Early Modern Natural
Law (Princeton, 2011), pp. 45–48.
29
Luis de Molina, Liberi arbitrii cum gratiae donis, divina praescientia, providentia,
praedestinatione et reprobatione, concordia, critical edn., ed. Iohannes Rabeneck (Madrid,
1953), I, ii, 3, p. 14; emphasis mine: ‘Quo pacto illud agens liberum dicitur quod postis
omnibus requisitis ad agendum potest agere et non agere aut ita agere unum ut
contrarium etiam agere possit’.
30
Ibid., I, ii, 3, p. 14: ‘non ita operatur nisi praevio arbitrio iudicioque rationis’.
31
Until recently we lacked an in-depth study of the controversy. Some historical details are
provided in James Brodrick, Robert Bellarmine: Saint and Scholar (London, 1961),
pp. 189–216. Accounts of the various philosophical arguments are: Mirko Skarica,
‘The problem of God’s foreknowledge and human free action in Spanish philosophy’,
in Hispanic Philosophy in the Age of Discovery, ed. Kevin White (Washington, DC, 1997);
John A. Hardon, History and Theology of Grace: The Catholic Teaching on Divine Grace
38 Part I
Scripture is ambiguous about the extent to which human beings are

free with respect to God’s sovereignty over his Creation. On the one
hand, it is an article of faith that all that comes to be in Creation is
effected by God – and this includes human actions. ‘Lord, you have
established peace for us; all that we have accomplished you have done for
us’ (Isaiah 26:12). ‘For we are God’s handiwork, created in Jesus Christ
to do good works, which God has prepared in advance for us to do’
(Ephesians 2:10). ‘For it is God who works in you to will and to act in
order to fulfil his good purposes’ (Philippians 2:13). ‘Therefore God has
mercy on whom he wants to have mercy, and he hardens whom he wants
to harden’ (Romans 9:18). On the other hand, revelation teaches that
human beings, made in the image of God, are free to will their own
actions. ‘This day I call the heavens and the earth as witnesses against
you that I have set before you life and death, blessings and curses. Now
choose life, so that you and your children may live’ (Deuteronomy
30:19). And in the deuteronomical book of Sirach (15:14–16): ‘It was
he who created man in the beginning, and he left him in the power of his
own inclination. If you will, you can keep the commandments, and to act
faithfully is a matter of your own choice. He has placed before you fire
and water; stretch out your hand for whichever you wish’.32
Similarly, the Council of Trent affirmed paradoxically both that no
creature can proceed to its act unless moved by God but also that
creaturely choice gives rise to an act which is a genuine self-movement.
As its name suggests, the controversy de auxiliis was about the nature of
the divine aid given to human beings to perform their acts; it was more
generally about the relationship between God’s universal governance
and human free choice. It began as a public disputation at the University
of Salamanca on 20th January 1582, between the Dominican Francisco
de Zumel and the Jesuit Prudencio de Montemayor, and concerned the
free and meritorious character of Christ’s atoning death; it concluded
only in 1607, when a papal bull issued by Paul V affirmed the plausibility
of both sets of arguments, ordered each side to refrain from charging the
other with heresy, and issued a proclamation that all parties should now
(Ann Arbor, 2005), pp. 251–261; and Joshua R. Brotherton, ‘The integrity of nature in
the grace-freedom dynamic: Lonergan’s critique of Bañezian Thomism’, Theological
Studies, 75 (2014), pp. 537–563. By far the best historical and philosophical account is
now R. J. Matava, Divine Causality and Human Free Choice: Domingo Báñez, Physical
Premotion and the Controversy De Auxiliis Revisited (Leiden, 2016). I am indebted to
Dr Matava for making his 2011 St Andrews thesis available to me before publication of
his monograph.
32
For the biblical teaching, see Mark John Farrelly, Predestination, Grace and Free Will
(Westminster, MD, 1964), pp. 38–70; and Matthew Levering, Predestination: Biblical
and Theological Paths (Oxford, 2011), esp. pp. 13–35.
await the authoritative (and still elusive) determination of the Holy See.33
Molina and Suárez were the two key disputants on the Jesuit side, while
the key text to understanding the Dominican position is Domingo
Báñez’s Tract on the True and Legitimate Concord of the Free Will of
Creatures with the Helping Grace of God (1600).34
It is likely that various Inquisitors tended to find Báñez’s position less
temerarious than Molinism because it openly exhibited the paradoxical
features of the traditional Catholic belief about liberum arbitrium. Báñez,
like his professed master and guide on all matters philosophical,
St. Thomas Aquinas, believed that creatures are dependent upon God
for all their operations. He maintained, nevertheless, that this did not in
any way detract from human freedom. Báñez’s theory of physical
premotion attempted to dissolve the paradox.
Báñez began from the principle that everything that moves is moved by
something else. Nothing apart from the first mover, God, can move itself
from a state of passivity to a state of activity. All things that obtain depend
ultimately and immediately upon God to obtain. For ‘just as the being
of God is the cause perpetually influencing all creatures, it is necessary
that when a creature moves from not operating to operating, or moves or
is moved by whichever other way, the influx of divine motion be prior by
order of causality’.35 God’s auxilium, then, is not a mere cooperative
influence on the agent, or an influence solely at the level of the effect; it is
a prior movement which influences the agential cause itself. Critically,
God’s physical premotion of agents does not move an agent to an end
which the agent had antecedently set up for itself. No creature moves
itself without God’s auxilium, and therefore no creature can intend an
end if not already moved to that end by God. Physical premotion,
therefore, means that an agent is moved to act by God, and that God
determines its activity. A created agent is not merely reliant on God for
its actions, but God also decides these actions.
How, then, can acts produced by a human being be free and their own,
if such acts are predetermined by God? Báñez’s answer appealed to a
distinction made by Aquinas, in Summa theologiae I q. 19. art. 3, between
33
Matava, Divine Causality, pp. 16–34.
34
Published as an appendix to Báñez’s commentary on Aquinas’s Prima secundae:
Domingo Báñez, ‘Tractatus de vera et legitima concordia liberi arbitrii creati cum
auxiliis gratiae Dei efficaciter moventis humanem voluntatem’, in Domingo Báñez,
Comentarios inéditos a la prima secundae de Santo Tomás. Tomo III: De gratia Dei
(qq. 109–114), ed. Vicente Beltrán de Heredia (Madrid, 1948).
35
Báñez, Tractatus, II, I, 5, p. 378: ‘sicit esse Dei est causa perpetuo influens esse in
creaturis, ita necesse est ut quando creatura transit de non operante in operantem, vel
quomodolibet alias movet aut movetur, ita influxus divinae motionis sit prior ordine
causalitatis’.
40 Part I
two kinds of necessity, only one of which Aquinas considered inimical to

free choice. Aquinas argued that God is not bound to will things by any
sort of absolute necessity. ‘Since God’s goodness is perfect and can exist
without other things, for no perfection is added to him by other things, it
follows that things distinct from himself are such that it is not absolutely
necessary that he will them’.36 However, God does in fact will other
things. God’s will is immutable and Creation has been willed by an
infallible, eternal decree. Therefore, the reality willed obtains by neces-
sity. But this necessity is not absolute necessity, for God might just as
well not have brought about this reality. This reality is necessary, there-
fore, but it is also contingent.37 If God wills something contingently, that
thing obtains necessarily because of God’s indefectible will, but that does
not eliminate the thing’s contingency.38 According to Báñez, following
Aquinas, the only kind of necessity that would be a threat to liberum
arbitrium is absolute necessity, and thus God’s predetermining auxilium
does not impinge on the will’s freedom.
Free choice, then, is free in the sense that it is not absolutely necessi-
tated. It is also free in a further sense, according to Báñez. God’s
predetermination is modally inclusive: God does not only predetermine
an act of willing, but he specifically predetermines it as free. God’s
auxilium ‘conforms itself to the nature of the secondary cause, so that
it effects the necessity of necessary causes and the contingency of
contingent causes’.39 God causes not simply the substance but also
the mode – as necessary or contingent – of secondary causes. This is a
36
St. Thomas Aquinas, Summa theologiae, ed. Thomas Gilby (London, 1964–1981), vol. 5,
God’s Will and Providence, Ia, q. 19, art. 3, p. 14: ‘Unde cum bonitas Dei sit perfecta et
esse possit sine aliis, cum nihil ei perfectionis ex aliis accrescat, sequitur quod alia a se
eum velle non sit necessarium absolute’.
37
The backdrop to Aquinas’s distinction between what is absolutely necessary and what is
only contingently necessary was the vexed issue of whether God might have created
alternative worlds to the one that he did create, and ultimately therefore about the nature
and extent of God’s freedom. It would be too great a digression to develop this
distinction here, where my concern is primarily creaturely freedom, but interested
readers are pointed to: William J. Courtenay, Capacity and Volition: A History of the
Distinction of Absolute and Ordained Power (Bergamo, 1990); Lawrence Moonan, Divine
Power: The Medieval Power Distinction up to Its Adoption by Albert, Bonaventure, and
Aquinas (Oxford, 1994); and Francis Oakley, Omnipotence and Promise: A History of the
Scholastic Distinction of Powers (Toronto, 2002).
38
For helpful discussion, see Anthony Kenny, ‘Divine foreknowledge and human
freedom’, in Aquinas: A Collection of Critical Essays, ed. Anthony Kenny (New York,
1969), esp. pp. 258–60.
39
Domingo Báñez, ‘Scholastica commentaria in primam partem summae theologicae
S. Thomae Aquinatis’, in Biblioteca de Thomistas Españoles: Reproducción de Textos, ed.
M. R. V. Fr. Luis Urbano (Dubuque, IA, 1934), p. 215 (commentary on ST, I, q. 14,
art. 13): ‘conformans se cum naturis secundum causarum, ita ut cum causa necessaria
necessittem efficiat, & cum contingent contingentiam’.
strange kind of predetermination, but it is, Báñez maintained, a

feature of divine predetermination.
Drilling down deeper into this argument allows us better to grasp
why Báñez configured the spiritual faculties in the way that he did, and
thus to understand the Molinist response. He wanted to argue that free
choice was in the nature of human beings, and that God’s physical
premotion somehow conformed itself to this natural freedom, so as not
to encroach upon it. Báñez took his definition of free choice from book II
of Peter Lombard’s Sentences, according to which ‘Free choice is the
faculty of the intellect and the will for acting or not acting, or for acting
one way or another’.40 In a manner similar to Molina and Suárez, Báñez
investigated the roles that each spiritual faculty played in liberum arbi-
trium. Like them, he argued that freedom was secured by the will;
freedom is ‘formally and essentially in the will’.41 Will is rational appetite
whose object – the intelligible good – is first apprehended and proposed
by the intellect. Judgment – the domain of the intellect – is a necessary
antecedent of acts of will. The ‘freedom of acts of will, which exist
formally in that faculty, arise as from a root from the acts of the intellect,
which is to say from the judgment of the intellect’.42 However, the
intellect itself is not a free faculty for its acts follow determinately from
the apprehension of an object. By contrast, the will is a free faculty
because it is subjectively indifferent.
However, this indifference of the faculty of the will has other grounds
for Báñez than for his Jesuit disputants. Báñez said practically nothing
about truth in his account of the spiritual faculties, certainly nothing
about truth as a human end in itself. The entire telos of the human being
is the good, more specifically the universal good (bonum in communi),
and both spiritual faculties are involved in striving towards this end.43
Truth seeking is but one aspect of the pursuit of the universal good. Both
faculties are orientated towards the good, the intellect cognitively and the
will affectively. Intellect and will cooperate in moving a free agent to
action in pursuit of the apprehended good.44
40
Báñez, Tractatus, I, i, 8, p. 360 (quoting Lombard’s Sentences, II, xxiv, 5): ‘Liberum
arbitrium est facultas intellectus et voluntatis ad agendum vel non agendum, vel
agendum unum vel aliud’.
41
Báñez, ‘Scholastica commentaria’, p. 370 (commenting on ST, I, q. 83, art. 1):
‘Libertas . . . est formalister et essentialiter in voluntate’.
42
Ibid., p. 255 (commenting on ST, I, q. 19, art. 10): ‘libertas actus voluntatis, quae in ipsa
formaliter existit, consurgit ex radice actus intellectus, videlicet ex tali actu & iudicio
intellectus’.
43 44
Báñez, Tractatus, I, i, 9, p. 361. Matava, Divine Causality, p. 75.
42 Part I
The indifference attributed to the will by Báñez is asserted on two

bases. First, where an end is clearly cognised as good, there is likely to be
no necessary connection between end and means. There may be several
means, none of which may even guarantee the attainment of the end.
Second, and similarly to Molina and Suárez, no finite good according to
Báñez will be so compelling that the will is bound to embrace it. ‘[I]t is
good to get up in the morning – but it is bad to do so when one is weary.
It is good to read a great work of literature – but it is bad because it strains
the eyes’.45 Willing what is good, the human agent to whom the beatific
vision is not present does not will the subsisting universal good. The will
is therefore indifferent because it is not naturally determined to one thing
but is disposed to various apprehended ways leading towards the good.
By its nature, the will is not predisposed to the willing of one alternative
over another; it must be disposed to plural alternatives. Correspondingly,
the will need not be disposed to willing at all at any given moment.
Just as it did for Molina and Suárez, the indifference that Báñez
attributes to the will is sufficient to ensure free choice. The crucial
difference, however, is that Báñez maintained that God’s auxilium did
indeed determine the will to its effects, yet nonetheless, because this
did not diminish the will’s natural disposition to alternatives or its
native power of doing otherwise even in the moment of choice, God’s
physical premotion was only conforming itself to the nature of the
secondary cause. Conforming itself to the nature of the agent, God’s
predetermination of the will does no violence to the free will.
To repeat, Báñez considered that none of this detracted from the
freedom of the will; rather, it simply specified the manner in which the
will was free. Freedom is always, on Báñez’s account, tinged by a certain
necessity. A theological advantage of Báñez’s theory was that it allowed
him to argue that God causes all that is good in a human acts but nothing
bad. God physically predetermines the acts of creatures as good; but
where those creaturely agents are themselves deficient, badness arises,
and this badness is to be attributed to the creaturely cause itself and not
to God.
God efficaciously concurs to pre-move the lame shin so that it would walk as it is
able, otherwise his concurrence would not be efficacious. But the lame shin is not
able to walk without limping. Therefore God moves it to the act of limping.46
45
Stephen Long, ‘Providence, freedom and natural law’, Nova et Vetera, 4 (2006),
pp. 557–605, at p. 564.
46
Domingo Báñez, Comentarios inéditos a la prima secundae de Santo Tomás. Tomo II: De
vitiis et peccatis (qq. 71–89), ed. Vicente Beltrán de Heredia (Madrid, 1944), p. 242
(commenting on ST, I–II, q. 79, art. 4, §67): ‘Deus efficaci concursu praemovet tibiam
God similarly causes the act of sin but not qua sin; the evil of the sin
emerges as a result of the deficiency of the secondary cause, not the first.
A further advantage of this argument, from Báñez’s perspective, was that
the ability to sin – which is not possessed by God – is not a power of the
free will as such, a power which God has in the highest degree. Sin comes
about because of creaturely limitation and not by virtue of any being
having possession of a free will.
Báñez’s faculty psychology was therefore formulated for broader theo-
logical purposes, as was that of Molina and Suárez. As far as they were
concerned, Báñez did not safeguard human free choice at all. Molina
responded to Báñez in his Summary of Major Heresies and Summary of
Minor Heresies, both submitted in 1594 to the Inquisitor General of
Spain, and also in his Censure against Twenty-three Propositions of the
Dominican Father Báñez, submitted to the Holy Office of the Inquisition
in Rome in 1598. According to Molina, although Báñez was careful to
restrict God’s causality to positive effects, the evil of sin still follows
inescapably from the divine predetermination. Sin’s occurrence or non-
occurrence is not up to the human agent. This lack of dominium –
mastery, ownership – of one’s own acts is utterly objectionable to Molina.
(We return later in this chapter to the language of dominium and its
alliance with the vocabulary of free causality.) Human beings do not
have the initiative in their own wrongdoing or in their own good acts.
This is all, to Molina’s mind, straight out of the fetid pools of
Calvinism.47
According to Molina and Suárez, the will is a self-mover and secures
for the free agent the ability to act or not in the presence of all antecedent
factors. God’s causality therefore cannot extend to the determination of
genuinely free causes. Molina and Suárez instead wrote of God’s ‘general
concurrence’ (concursus generale), which is simultaneous with the human
act of free choice and indifferent to the determination that characterises
that act as the specific kind of act it is. Molina conceived of divine-human
cooperation in the production of free acts as the coordination of partial
causes in order to bring about a single effect, ‘as when two men drag a
claudam ut ambulet modo quo potest, alias non esset efficax. Sed non potest ambulari
nisi claudicando. Ergo movet ad claudicandum’.
47
Luis de Molina, ‘Summa haeresium maior’, in Geschichte des Molinismus, vol. 1, Neue
Molinaschriften, ed. Friedrich Stegmüller (Münster, 1935), p. 398: ‘Quotus autem
quaeso quisque est, qui dum assignari homini liberum arbitrium audit, non statim
concipit, illium esse et mentis suae et voluntatis dominum, qui flectere se in utramvis
partem a se ipso possit?’ The ‘fetid pools of the Reformers’ is Suárez’s phrase, in
Francisco Suárez, ‘A defence of the Catholic and Apostolic faith’, in Selections from
Three Works, eds. Gwladys L. Williams, Ammi Brown and John Waldron (Oxford,
1944), p. 649.
44 Part I
boat, [and] the entire movement comes from each of the pullers, but not
from each as if from a total cause, since each puller simultaneously effects
with the other the whole motion and the singular parts of it’.48 God’s
influence makes the human agent’s action to be, whereas the human
agent’s own influence make the action to be this rather than that.
A choice owes its existence to God, but its essence to the creaturely agent.49
God’s grace is required to make a human act into a supernatural (that is,
meritorious or sanctifying) one, and certainly disposes an agent towards
the good, but such grace only derives its own efficacy from the mode
of response of the human recipient.50 Whatever the division of the
causality of the human act of free choice – between general concurrence,
the human act of will and grace – the causes that operate extrinsically on
the agent take place with him rather than on him. For Suárez, God
‘applies his power to the [human] act in question, but on the condition
that the secondary cause – that is, the created will – should likewise
determine itself to that action and issue forth into it’.51 Even though all
the requisites for the action have been posited, the agent remains able to
desist from eliciting the action. Suárez also noted:
the nature of a free cause is such that, after all the other conditions required for
acting have been posited, it is indifferent with respect to more than one act;
therefore, it must also receive the concurrence in the first act in an indifferent
mode; therefore, it must be the case that, from the side of God, the concurrence
is offered to a free cause not just with respect to one act but with respect to
more than one act . . . If this were not so, then the created thing would never be
proximately capable of effecting more than one act; therefore, it would never
be free with respect to the specification of the act.52
Molina and Suárez claimed to uphold God’s omniscience and
sovereignty through their theory of what Molina called ‘middle
knowledge’ (scientia media) and Suárez ‘conditional knowledge’ (scientia
conditionata). God has a kind of knowledge, they exposited, between his
natural or simple knowledge (of his own essence and the range of what is
possible) and his free knowledge (of what actually exists in its temporal
past, present and future).53 God does not determine how free agents
48
Luis de Molina, ‘Concordia’, II, xxvi, 15, p. 170: ‘cum duo trahunt navim, totus motus
proficiscitur ab unoquoque trahentium, sed non tamquam a tota causa motus siquidem
quivis eorum simul efficit cum altero omnes ac singulas partes eiusdem motus’.
49 50
Ibid., II, xxxii, 15, pp. 201–202. Ibid., I, xv, 14–15, pp. 90–91.
51
Francisco Suárez, On Creation, Conservation, and Concurrence: Metaphysical Disputations
20, 21, and 22, trans. Alfred J. Freddoso (South Bend, IL, 2002), XXII, iv, 14, p. 225.
52
Ibid., XXII, iv, 20, p. 227.
53
See Thomas P. Flint, Divine Providence: The Molinist Account (Ithaca, NY, 1998), p. 47;
Walter Matthews Grant, ‘Counterfactuals of freedom, future contingents, and the
would act in the various circumstances in which they find themselves,

but he knows infallibly how they would themselves freely respond in such
circumstances:
God knows the determination of a created faculty of choice before it exists
because of the infinite and unlimited perfection of His intellect and because of
the preeminent comprehension by which He comprehends that faculty in His
essence in a way far deeper than that in which it exists itself; and thus on the
hypothesis that He should will to situate it in such-and-such an order of things
and circumstances, He knows which part it will in its freedom turn itself
toward.54
Báñez, of course, would have none of this. He argued that the Molinist
theory of freedom, by describing acts of sin as acts of free will, in fact
debased freedom, for sin belongs to the imperfection of it.55 Molinism also
contravened the Thomist principle that whatever moves is moved by
another. It further implied that God, in causing free acts in abstraction
from the determinations that made those acts to be what they were, created
things that were indeterminate in being, which he does not do. Finally, as
Báñez argued forcefully in his anti-Molinist Apology of 1595, for Molina
and Suárez salvation was less a matter of God’s will than of his foreknow-
ledge; human beings were exerting a kind of control over God that was
unacceptable.56 As for middle knowledge, it was both heretical and impos-
sible. It was heretical because, inasmuch as counterfactuals of freedom are
neither logically necessary truths nor mere possibilities lying within divine
power but not yet known pre-volitionally, they suppose that something
other than God can be definite prior to God’s decision to create. It was
impossible because God cannot possibly know what a free agent will do if
that agent is really free on Molina’s radical definition of freedom.57
We must leave the debate de auxiliis here.58 We may summarise it thus:
on the Dominican view espoused by Báñez, free acts are a subclass of
grounding objection to middle knowledge’, Proceedings of the American Catholic

Philosophical Association, 74 (2000), pp. 307–323, at 307.
54
Molina, Divine Foreknowledge, IV, liii, 14, pp. 206–207.
55
Báñez, Tractatus, I, I, 8, p. 360.
56
Domingo Báñez, ‘Apologia fratrum praedictatorum in provincia Hispaniae sacrae
theologiae professorum, adversus novas quasdam assertiones cuiusdam doctoris
Ludovici Molinae nuncupati’, in Domingo Báñez y las controversias sobre la gracia: Textos
y documentos, ed. Vicente Beltrán de Heredia (Madrid, 1968), I, xxiii, 3, pp. 211–212.
57
Ibid., I, xvi, 4, p. 185. For one possible Molinist solution, see William Lane Craig,
Divine Foreknowledge and Human Freedom: The Coherence of Theism (Leiden, 1988),
pp. 206–233.
58
The debate continues between contemporary Bañezians and Molinists – believers and
Catholics all. See, for instance, Ken Perszyk, ed., Molinism: The Contemporary Debate
(Oxford, 2011).
46 Part I
end-directed behaviour; on the Jesuit view espoused by Molina and

Suárez, end-directedness presupposes freedom.59 My interest now is
the historical one of specifying the reasons that spurred the Molinist
account of moral theology. During the controversy de auxiliis the Jesuit
position received its authoritative statement, but it was defended because
of certain commitments of longer and deeper standing in the Jesuit view
of the universe. These commitments, as immaterial as they may seem to
political theory, would in time feed into Pufendorf’s political theory and
with it the concept of the modern state.
III. The Broader Context: The Society of Jesus and

the Sacrament of Penance
Most attempts to historicise Molinist faculty psychology and the radical
freedom it imputes to the will begin and end with the Spiritual Exercises of
Ignatius of Loyola, published in 1548 by the founder of the Society of
Jesus. We ‘ought not to speak of grace at such length and with such
emphasis’, he wrote, ‘that the poison of doing away with liberty is engen-
dered’. Molinism is thereby explained as a defence of free will against
Lutheran and Calvinist avowals of its ‘bondage’ to sin and God’s inscrut-
able providence, an orientation hardwired in Jesuits through their spiritual
instruction.60 No doubt this should form part of the story. Suárez even
provided some textual support for it when he remarked on the ‘zeal with
which our Company is endeavouring to find a satisfactory solution in
order to resolve the problem of reconciling freedom with grace’, which
zeal ‘inspired Ignatius, our father, from the beginning. From him it passed
to his sons’.61 I want to suggest, though, that a fuller understanding can
be garnered by examining the broader Jesuit cultural context.62
59
I have taken this helpful précis from Erik Åkerlund, Nisi temere agat: Francisco Suárez on
Final Causes and Final Causation (PhD dissertation, Uppsala University, 2011), p. 89.
60
Quoted in Hardon, History and Theology, p. 252, whose explanation this is also. It has long
been offered as such. It is given by Anton C. Pegis, ‘Molina and human liberty’, in Jesuit
Thinkers of the Renaissance, ed. Gerard Smith (Milwaukee, 1939), p. 83. Gerard Smith
later proffered it in his critical study Freedom in Molina (Chicago, 1966), p. 219. It is
affirmed more recently in Matava, Divine Causality, pp. 106–107. I myself likewise offered
it, in Ben Holland, ‘Pufendorf’s theory of facultative sovereignty: On the configuration of
the soul of the state’, History of Political Thought, 33 (2012), pp. 427–454, at p. 430.
Unlike my own effort, the authors of the other sources cited here are interested in
theological or philosophical aspects of Molinism, rather than its intellectual history.
61
Quoted in Juan Cruz Cruz, ‘Predestination and transcendent teleology: Molina and the
first Molinism’, in Companion to Luis Molina, eds. Alexander Aichele and Mathias
Kaufmann (Leiden, 2014), p. 93.
62
One recent attempt to do just this is Romanus Cessario, ‘Molina and Aquinas’, in
Companion to Luis Molina, eds. Alexander Aichele and Mathias Kaufmann (Leiden,
(i) The Mission of Confession

I think that the best place to begin such an attempt to put this psycho-
logical theory in context is the significance to the Jesuit mission of the
sacrament of penance, which was interpreted distinctively in the Formula
of the Institute (1550) as ‘the spiritual consolation of Christ’s faithful
through hearing confessions’.63 Besides the Eucharist, Jesuits were
barred from administering any sacraments apart from the sacrament of
penance. Baptism, confirmation, marriage, ordaining others, even
extreme unction (rites for the dying) – in none of these did the first
Jesuits engage.64 The sacrament of penance had somewhat fallen into
disrepute when the Jesuits sought to revitalise it. The payments that
priests traditionally required to carry it out had stirred Luther’s ire.
The liturgical confession of sins at the beginning of mass seemed suffi-
cient, such that the sacrament of penance itself could be perhaps an
annual event, or one done from the deathbed. In fact, the capacity to
absolve sin became, in Luther’s wake, a privilege that had to be extended
to a priest by the pope anyway, and for the most part these privileges
extended only as far down as local bishops, with the exception that an
ordinary priest could hear the confessions of someone at death’s door.
For the Jesuits, by contrast, confession was about ‘putting on a new
soul’, as Ignatius’s assistant, Jerónimo Nadal, had it.65 It was about
2014), pp. 291–323. Cessario concentrates on the distinctive character of the daily
routines of the Jesuit residences, arguing that the ‘separation of contemplation and
studies [in them] constitutes the key difference between the Dominican approach to
apostolic activity [where no such separation was made] and the Jesuit view of mission’
(p. 302), and maintaining by extrapolation that ‘for the Jesuit, the perfection of the
intellect by study is one thing, whereas the perfection of the will by obedience and prayer
is another. Molina was disposed to separate intellect and will’ whereas the Dominicans
were not (p. 305). Cessario owes his point about the Jesuit partition of study and worship
to Rivka Feldhay, ‘Knowledge and salvation in Jesuit culture’, Science in Context, 1
(1987), pp. 195–213, at p. 200. There is also a fascinating suggestion in John
Robertson, ‘Sacred history and political thought: Neapolitan responses to the problem
of sociability after Hobbes’, Historical Journal, 56 (2013), pp. 1–29, at p. 8, that the
Society of Jesus’s mission to China may have led to a weakening of the traditional
Catholic emphasis on the gratuitousness of God’s grace. In order to sustain their
mission, the Jesuits ‘insisted on interpreting Confucianism as a benign form of natural
religion . . . whose adherents could be expected shortly to convert to Christianity’, and
that to their critics ‘such confidence in a seamless progression from nature to grace
defied all theological credibility’.
63
Ignatius of Loyola, ‘Formulas [sic] of the Institute of the Society of Jesus, approved and
confirmed by Julius III’, in The Christianity Reader, eds. Mary Gerhart and Fabian E.
Udoh (Chicago, 2007), p. 482; my emphasis.
64
John W. O’Malley, The First Jesuits (Cambridge, MA, 1993), pp. 134–135. I am
indebted to O’Malley’s book for much of the contextual detail on the early Jesuits that
I have garnered.
65
Ibid., p. 140.
48 Part I
enabling spiritual progress, ‘a devout practice, not a duty’.66 Penitents

would receive instruction in the right way in order to help them ‘to begin
to make a new book’ of life.67 They should take confession, not primarily
for the remission of sins, but because of its consolatory and therapeutic
aspects, which were for the Jesuits central to all aspects of the spiritual
journey. As Ignatius’s companion Pierre Favre wrote in his journal:
With great devotion and new depth of feeling, I also hoped and begged for this,
that it finally be given me to be the servant and minister of Christ the Consoler,
the minister of Christ the helper, the minister of Christ the redeemer, the minister
of Christ the healer, the liberator, the enricher, the strengthener. Thus it would
happen that even I might be able through him to help many – to console, liberate,
and give them courage; to bring to them light not only for their spirit, but also (if
one may presume in the Lord) for their bodies, and bring as well other helps to
the soul and body for each and every one of my neighbours whomsoever.68
Indeed, consolation was to permeate all Jesuit ministries, as Nadal
explained:
These words – ‘especially spiritual consolation’ – refer to all the primary
ministries of the Society. They at the same time mean that we are not to be
content in those ministries only with what is necessary for salvation but pursue
beyond it to the perfection and consolation of our neighbour. For spiritual
consolation is the best index of a person’s spiritual progress. The word
‘especially’ means that there are other ends we must pursue, but this one is in
the first place, as our primary intention and goal.69
Confession-as-consolation, then, meant personal guidance and counsel,
and help to impart strength to the weak, assurance to the doubtful, calm
to the tempted, solace to the distraught.70
Luther had argued that confession only gave rise to anxiety about the
adequacy of one’s contrition.71 Countering this perception spurred in
part the Jesuit emphasis on the assuaging aspects of the sacrament.
Countering it for the purposes of renewing and strengthening the faith
in their flocks helped also to develop a culture of case-based reasoning
among Jesuits. The manual for Jesuit confessors by Ignatius’s secretary,
Juan Alfonso de Polanco, published in 1554, stressed the importance of
confessors adapting themselves to circumstances of person, place and
time. It explicitly instructed that, in assigning satisfaction, the confessor
66 67
Ibid., p. 138. Ibid., p. 139.
68
Quoted in John W. O’Malley, ‘Some distinctive characteristics of Jesuit spirituality in the
sixteenth century’, in Jesuit Spirituality: Now and Future Resources, eds. John
W. O’Malley, J. Padberg and V. O’Keefe (Chicago, 1990), p. 20.
69 70
Ibid., pp. 19–20. O’Malley, First Jesuits, p. 139.
71
Lawrence G. Duggan, ‘Fear and confession on the eve of the Reformation’, Archive for
Reformation History, 75 (1984), pp. 153–175.
should always take the more humane course. Rather than considering the
quantity or gravity of the sin confessed, the confessor should consider
the person and accommodate his final advice and directions to the
capacity and disposition of the penitent.
Unless he already knows the exercitant [penitent], the director [confessor] should
try to get information about his intelligence, character, and temperament, either
from others or through tactful questioning of the exercitant. In this way he will
better be able to adapt himself to the exercitant. To grave and learned persons he
should speak succinctly and learnedly; to persons of little spiritual experience,
with greater fullness . . . [If the penitent] is trying too hard, the director can
restrain him. If he is in desolation the director can console him. If he is flooded
with consolations the director can sift them. If he is agitated by temptations of
diverse spirits, the director should make the inquiries needed for the discernment
of spirits.72
The accommodation of moral considerations to circumstances lent the

sacrament of penance as practised in Jesuit culture a juridical character.
Case-based reasoning, after all, was very much the modus operandi of
judges. The acts of confessors came to be conceived as tantamount to
judicial acts, with confessors as judges in the court of conscience. As the
analogy between the resolution of cases of conscience and adjudication
in the external court lost its power in Protestant Christianity – which
stressed the very personal quality of an individual’s private relationship
with God – the Jesuits were at the forefront of a strengthening Catholic
conviction that spirituality and morality had to be articulated along legal
lines.73
The Society of Jesus turned around the fortunes of the sacrament of
penance. It began to shed its association with venality and corruption, as
Jesuits refused to charge for their services as confessors – ‘as late
as 1556 this practice shocked the Genoese, who thought they were
not truly absolved from their sins unless they offered some money to
the confessor’.74 Confessions were undertaken outside the ambone,
in city squares, hospitals and gaols. And the Society so came to dominate
the administration of the sacrament that in 1552 Pope Julius III granted
all its priests permission to remit anyone not only from plain sin but also
from the gravest sin of them all, heresy, thus enabling the Jesuits to
72
Juan Alfonso de Polanco, ‘Brief directions to confessors, on confessing and how properly
to discharge their functions’, in On Giving the Spiritual Exercises: The Early Jesuit
Manuscript Directories and the Official Directory of 1599, ed. Martin E. Palmer
(St. Louis, MO, 1996), pp. 124–126.
73
Wim Decock, Theologians and Contract Law: The Moral Transformation of the Ius
Commune (ca. 1500–1650) (Leiden, 2012), p. 55.
74
O’Malley, First Jesuits, p. 149.
50 Part I
bypass Inquisitorial tribunals. This would contribute to the distrust in

which other Catholic sects increasingly held the Society.75
(ii) Renaissance Humanism and Probability

This spiritual conviction, and the wariness to which it gave rise, were
further cemented by the embrace of Renaissance Humanism by the
second generation of Jesuits. These were the Jesuits who took up the
provision of education, as much as the sacrament of penance, as pivotal
to the Society’s mission. There were ‘two ways of helping our neigh-
bours’, wrote Polanco to all superiors in 1560, ‘one in the colleges in
education of youth in letters, learning, and Christian life, and the second
in every place to help every kind of person through sermons, confessions,
and the other means that accord with our customary way of proceed-
ing’.76 By 1599, when the Society published its Ratio studiorum that set
out the curriculum to be followed in Jesuit schools, it was now asserted
that ‘it is the principal ministry of the Society of Jesus to educate youth in
every branch of knowledge that is in keeping with its Institute’.77 A major
part of the syllabus, by this time, was the study of classical rhetoric.78
Quite a sea change in the Jesuit attitude towards classical learning
occurred between the first and second generations. ‘The second
generation . . . became deeply imbued with Italian Humanism and was
prone to look on the humanities with much greater understanding and
even a worldly passion’.79 Early Jesuits – and this continued to be the
case among other Catholic denominations – tended to be suspicious of
Humanism. The historical and philological approach to texts pioneered
by the likes of Lorenzo Valla would culminate with Erasmus’s critical
Greek edition of the New Testament and his new Latin translation,
75
Ibid., p. 144. It is also did not help the popularity of the Society that it was the only
Catholic sect which seemed immune to the greater encroachment of episcopal powers
over the various orders in the late sixteenth century. As the Reformation led to the
dispersal of formerly Catholic property during this time, the mendicant orders
increasingly complained of ill treatment by the bishops, who looked on these sects,
with their various criticisms of private property, with some suspicion. See P. T.
Stolarski, ‘Dominican-Jesuit rivalry and the politics of Catholic renewal in Poland,
1564–1648’, Journal of Ecclesiastical History, 62 (2011), pp. 255–272, at pp. 256 and
264.
76
O’Malley, First Jesuits, p. 200.
77
Ratio Studiorum, trans. Allan P. Farrell (Washington, DC, 1970), p. 1, www.bc.edu/sites/
libraries/ratio/ratio1599.pdf (accessed August 23, 2013).
78
For a concise account, see Kristine Johnson and Paul Lynch, ‘Ad perfectum eloquentiam:
The “spoils of Egypt” in Jesuit Renaissance rhetoric’, Rhetoric Review, 31 (2012),
pp. 99–116.
79
Aldo Scaglione, The Liberal Arts and the Jesuit College System (Amsterdam, 1986), p. 81.
which seriously challenged the Vulgate.80 Nadal, for one, was sceptical of
those mere ‘grammarians’ and their dissimulative style. Ignatius had to
remind him that the classics were the ‘spoils of Egypt’.81 No such
ambiguity existed for the second generation of Jesuits, however. There
was no greater advocate of classical learning amongst this generation
than Pedro João Perpinyá, a distinguished teacher first at the Jesuit Royal
University of Coimbra in Portugal and later at the Roman College.
In 1555, he explained:
in Christian republics there have ever been two sorts of individuals striving with
noble effort to compass the perfection of learning. The one sort [the Scholastic],
captivated by the very appeal of learning and its seeming self-sufficiency, strains
every nerve to acquire subtlety in argument, power and fecundity in speech, and the
inner secrets of science. The other [the Humanist], dedicated to promoting the
interests of the common weal, seeks only to cultivate the useful arts, believing that
in so doing he will at once win the plaudits of glory and fulfil the highest call of
integrity, but withal forgetting or obscuring the evident claims of Christian virtue.
Both of these classes of individual are in error. Thus you see, I take it, the great
necessity we have to unite and harmonise knowledge and virtue; and you will see as
well the direful consequences of their dissension and disunion.82
There were reasons besides pedagogical ones for the Society’s Human-
ist turn. Humanism to a large extent comported well with the Jesuit
spirituality that we have begun to describe above. Its emphasis on the
persuasive character of good style could fortify Christian truth by culti-
vating the translation of truth into a person’s whole style of thinking,
feeling and behaving. This fit agreeably with the Jesuit mission to foster
spiritual progress.
Cicero’s work on rhetoric was crucial in this connection. For the
principle of accommodation to times, places and persons that the Jesuits
adopted in their confessional responsibilities was, according to Cicero,
both a rhetorical principle and rhetoric’s singular contribution to ethics.
The orator knows that in order to convince his audience his argument
must be probabile. Something is ‘probable’, in this sense, inasmuch as it is
‘approved’, or ‘held for the most part’, or ‘arguable’.83 The effective
80
See Jerry H. Bentley, Humanists and Holy Writ: New Testament Scholarship in the
Renaissance (Princeton, 1983); Alastair Hamilton, ‘Humanists and the Bible’, in The
Cambridge Companion to Renaissance Humanism, ed. Jill Kraye (Cambridge, 1996).
81
O’Malley, First Jesuits, p. 257. On the significance of the ‘spoils of Egypt’, see Thomas
Guarino, ‘Spoils from Egypt: Contemporary theology and non-foundationalist thought’,
Laval théologique et philosophique, 51 (1995), pp. 573–587, at pp. 574–576.
82
Quoted in Allan P. Farrell, The Jesuit Code of Liberal Education: Development and Scope of
the Ratio Studiorum (Milwaukee, WI, 1938), pp. 113–114.
83
These are synonymous with the Latin word probabile; see M. W. F. Stone, ‘The origins of
probabilism in late scholastic moral thought: A prolegomenon to further study’,
52 Part I
orator will endeavour to convince his audience by use of probabilities:

he will draw on accepted authorities, or extrapolate from something that is
already admitted, or invoke a disputable argument, even if he knows that
it is not unassailable, because it has at least a ring of truth. All of these
devices will be deployed or not with an eye to the context, to be deter-
mined in situ. To reinforce his point about what constitutes probability,
Cicero cites testimony in a court of law. A statement ‘will be probable,
if the things which are related are consistent with the character of the
persons concerned, with the times and places mentioned, if the cause of
every fact and event is stated, if they appear to be proved by witnesses,
if they are in accordance with the opinions and authority of men, with law,
with custom, and with religion’.84 And judgment of probability is no
doubt the best we can do when assigning moral judgment:
There are those who say that some things are certain and others uncertain.
I disagree with them: I would say that some things are probable and other
improbable. Is there anything, then, to prevent me from pursuing what seems
probable and rejecting the reverse? Surely by avoiding over-bold assertion one
reduces the risk of being irrational, which is the very negation of philosophy.
The very reason why we Academics question the certainty of everything is that the
probability, which I have mentioned, could not come to light except from a
comparative analysis of the arguments on both sides.85
Probability, then, for Cicero, is the resemblance to the truth, or veri-

similitude. We can see why Cicero would be so attractive to the early
Jesuits. They made use of Ciceronian terminology: Molina’s treatise On
Justice and Laws, for instance, uses probability and verisimilitude
interchangeably.86 Crucially, Ciceronian rhetoric supported and ampli-
fied Jesuit casuistry, or the study of ethics through particular cases.
‘Rhetoric and casuistry were mutual allies. It is not surprising to find
the Jesuits, who were dedicated to teaching classical rhetoric in their
Recherches de théologie et philosophie médiévales, 67 (2000), pp. 114–157, at p. 117. See also
M. W. F. Stone, ‘Scrupulosity and conscience: Probabilism in early modern scholastic
ethics’, in Contexts of Conscience in Early Modern Europe 1500–1700, eds. Harald Braun
and Edward Vallance (Basingstoke, 2000); and John Mahoney, The Making of Moral
Theology: A Study of the Roman Catholic Tradition (Oxford, 1987), pp. 135–143.
84
Cicero, A Dialogue Concerning Oratorical Partitions, chap. 9. Online Library of Liberty
version, available at: http://oll.libertyfund.org/?option=com_staticxt&staticfile=
show.php%3Ftitle=734&chapter=87667&layout=html&Itemid=27.
85
Quoted in Douglas F. Threet, ‘Rhetorical function of Ciceronian probability’, Southern
Speech Communication Journal, 39 (1974), pp. 309–321, at p. 320. See also Prentice A.
Meador, ‘Skeptic theory of perception: A philosophical antecedent of Ciceronian
probability’, Quarterly Journal of Speech, 54 (1968), pp. 340–351, and Douglas Lane
Patey, Probability and Literary Form (Cambridge, 1984), esp. pp. 13–19.
86
Daniel Schwartz, ‘Probabilism, just war and sovereign supremacy in the work of Gabriel
Vázquez’, History of Political Thought, 34 (2013), pp. 177–194, at p. 179.
colleges, became the leading exponents of casuistry’.87 There were few

moral absolutes; cases must be judged on an individual basis, and Jesuit
ministers must thus be trained in case-based reasoning. But even more
than this, Ciceronian probability was taught in the Jesuit colleges
expressly in order that the priests who would undertake the sacrament
of penance be sensitive to particularity. It was intended to produce
confessors suited to the consolatory dimension of the sacrament.88
‘Rhetoric, the confessional, and casuistry are first cousins’.89
(iii) Rule Sixty-Five in Canon Law

Humanist probability therefore undergirded the nascent Jesuit culture of
accommodating circumstances as part and parcel of its consolatory mis-
sion. But a further ingredient must be added to account for probability’s
role in incubating the Jesuit commitment to the free will, and that
ingredient was a proposition on private property in canon law. The
proposition is regula iuris sixty-five, that ‘In equal crimes or cases the
position of the possessor is stronger’ (In pari delicto vel causa potior est
conditio possidentis). When the ownership of property is disputed and
there is no legal presumption in favour of any side, the rule states that
the property ought to be retained by its present possessor, so long as this
person is in good faith, that is, believes that the thing is legitimately his.
As Rudolf Schüßler has shown, the relevant context for understanding
how this principle became significant in Jesuit ethics is Spanish
colonialism and Spain’s special role in the gestation of early-modern
capitalism.90 Apologists for Spanish imperialism, of various denomin-
ational stripes, argued, by invoking rule sixty-five, that Spain was permit-
ted to retain its American possessions in spite of the moral dubiousness
surrounding their conquest. Writers such as the Salamancan professor
Juan de Guevara claimed that the initial intention of the Spaniards had
been to trade with the indigenous peoples of America for mutual benefit.
87
Albert R. Jonsen and Stephen Toulmin, The Abuse of Casuistry: A History of Moral
Reasoning (Berkeley, CA, 1988), p. 88.
88
See especially the detailed study by Robert Aleksander Maryks, Saint Cicero and the
Jesuits: The Influence of the Liberal Arts on the Adoption of Moral Probabilism (Aldershot,
2008), pp. 83–105.
89
Harro Höpfl, Jesuit Political Thought: The Society of Jesus and the State, c. 1540–1630
90
Rudolf Schüßler, ‘Moral self-ownership and ius possessionis in Scholastics’, in
Transformations in Medieval and Early-Modern Rights Discourse, eds. Virpi Mäkinen and
Petter Korkman (Dordrecht, 2006). See also Rudolf Schüßler, ‘On the anatomy of
probabilism’, in Moral Philosophy on the Threshold of Modernity, eds. Jill Kraye and
Risto Saarinen (Dordrecht, 2005), esp. pp. 98–100.
54 Part I
However, violence erupted – for reasons that are difficult to determine.

When Spain took possession of America, therefore, this was not obvi-
ously morally wrong; it could have been taken in reparation after a just
war. Under such circumstances, rule sixty-five could be used to justify
Spanish rule and the appropriation of America’s natural resources.91
Anthony Pagden has also noted that rule sixty-five was invoked by the
likes of Francisco de Vitoria to contend that slave owners could retain
and even resell their slaves because a bona fide possessor was entitled to
hold on to his things even if the institution of slavery was morally
questionable.92
Thus in the Spanish context rule sixty-five began to supersede the
regula magistralis of canon law, heretofore the major principle for dealing
with moral uncertainty, according to which ‘in doubt, the safer side
should be chosen’ (in dubiis tutior pars est eligenda).93 This development
owes no more to the Society of Jesus than to any other Catholic sect;
indeed, it owes most to Dominican scholars. But rule sixty-five was taken
up by leading Jesuit thinkers because it provided juridical reinforcement –
the authority of the public court of law – to the Jesuit insistence that
Ciceronian probability was the appropriate framework for adjudication in
the court of conscience. The first step here was taken by Gabriel
Vázquez, a teacher at the Jesuit College of Alcalá, in his commentary
on Aquinas’s Prima secundae, published in 1599. Vázquez examined the
question of whether some item, the continued possession of which might
constitute a sin, ought to be returned to its previous owner. It is safest,
he argued, to return that thing, because there is no sin in returning it,
where there might be in keeping it. This argument is internally probable.
On the other hand, rule sixty-five states that the possessor who has the
item in good faith is entitled to keep it; that argument is externally
probable, because it has the support of various legal authorities on the
matter. So what is this confused possessor to do? Vázquez argued that it
is open to this person to choose either probable opinion. The less safe
opinion might be the more probable: it might be grounded in the author-
ity of experts and seem more reasonable. An individual ought not be
condemned for acting on the basis of strong arguments. But likewise,
he ought not to be condemned for choosing the less probable opinion, as
that might be safer. Turning to the raison d’être of the Society of Jesus –
the sacrament of penance – Vázquez held that the confessor is bound to
91
Schüßler, ‘Moral self-ownership’, pp. 154–155.
92
Anthony Pagden, The Fall of Natural Man: The American Indian and the Origins of
Comparative Ethnology (Cambridge, 1986), pp. 32–33.
93
Schüßler, ‘Moral self-ownership’, pp. 153–154.
accept the less probable opinion of the penitent and to grant him absolu-
tion. The Jesuit doctrine of probabilism was born.94 The freedom of
conscience to choose even the less probable opinion was the real consola-
tion that the generation of Jesuits steeped in Ciceronian probability could
now give to the ‘weighed down’ penitent.95
Suárez – whose association with the obscurantism of high Scholasti-
cism is ingrained – was the author of a handbook for confessors on cases
of conscience, published posthumously in 1628 as Enchiridion casuum
conscientiae, which endorsed Vázquez’s probabilism. He also defended it
in his On the Goodness and Badness in Human Acts. Suárez here invoked
rule sixty-five not merely as a rival claim to the regula magistralis but as the
very ground of freedom of conscience. The immediate context was a
discussion of whether inadequately promulgated laws bind, which is to
say whether such laws inhibit human freedom. He answered that they did
not. ‘And thus the general rule is that it does not oblige: and the reason is
that it can be justified by the principle that in doubt the lot of the
possessor is better, and that a person retains his liberty’.96 A person is
the possessor of his liberty – he is in his own possession – and where there
is doubt (where there is more than one plausible opinion), then as a
matter of principle his ownership of his base freedom ought to be upheld.
Where the existence or validity of a law is doubtful there are probabilities
on both sides of it, and thus it is not even clear what the safer side would
be: there is no practical danger in disobeying such a law for it cannot be
enforced, and the greater danger may indeed be in attempting to bind
94
Mahoney, Moral Theology, p. 136; Ian Hacking, The Emergence of Probability:
A Philosophical Study of Early Ideas about Probability, Induction and Statistical Inference,
2nd edn. (Cambridge, 2006), pp. 22–24.
95
Avery Dulles, ‘Jesuits and theology: Yesterday and today’, Theological Studies, 52 (1991),
pp. 524–538, at p. 528. Probabilism more than anything else gave rise to the association
of the Society of Jesus with underhandedness; if the many conspiracy documentaries on
YouTube – augmented since the election of the first Jesuit pope – are to be believed, it
was an initial step along the path to the Society being the secret power behind the world’s
most powerful governments. Pascal’s Wager is but one encapsulation – actually,
essentially a restatement of the regula magistralis allied to an altogether more modern
treatment of probability – of a fundamentally anti-Jesuit position occasioned by
probabilism and casuistry. See Ilkka Kantola, ‘Pascal’s Wager and moral tutiorism’, in
Medieval Philosophy and Modern Times, ed. Ghita Holmström-Hintikka (Boston, MA,
2000).
96
Francisco Suárez, ‘De bonitate et malitia humanorum actuum’, in Francisco Suárez,
Opera omnia, vol. 4, ed. Antoine Théophile Duval (Paris, 1865–78), XII, v, 7, p. 448:
‘Et tunc generalis regula est non obligare: ratio peti potest ex illo principio, quod in
dubiis melior est conditio possidentis; homo autem continet libertatem suam’. Note that
in this formulation of rule sixty-five there has been some appropriation of the regula
magistralis, however. Suárez applied rule sixty-five in the domain of doubtful (in dubiis)
rather than equal (in pari) cases.
56 Part I
men intolerably to what amounts to just one opinion, which would be an

embarrassment to the very system of law.97
Suárez’s overt discussions of probabilism confine the doctrine to cases
of doubt about the proper extension of a law. He refrained from
extending it to all morally doubtful matters; such a development would
come later in the Jesuit moral tradition.98 Within the parameters of his
subject, nevertheless, Suárez maintained that where there is more than
one reasonable premise for action, a person has an intrinsic liberty to
choose any of these as his own premise. Rule sixty-five provided Suárez
with an analogous argument in the legal domain to his argument about
the will’s freedom vis-à-vis the stipulations of the practical intellect in the
mental domain.
(iv) The Language of dominium

Suárez used the Latin equivalent of ‘possessor’ in his invocation of rule
sixty-five, but elsewhere in his writings on liberty he used the language of
dominium. In his treatise On Human Ends, for instance, Suárez wrote that
a man’s dominium of his actions can only be said to obtain in virtue of his
free will ‘acting or omitting his actions’: it does not obtain by right (for he
owns his sins, but not rightfully); nor does it always obtain in a strict legal
sense (the owner of the actions of the servant is his master). ‘Therefore,
where there is no freedom, there will be no dominium nor human
action’.99 Dominium has a dual sense here: it entails both ownership
and mastery or lordship. The concept of dominium, as we shall see, goes
to the heart of the disparity between Dominican and Jesuit worldviews.
The Dominican view of free acts – that they are a subset of end-directed
97
Ibid., XII, vi, 8, p. 451: ‘Ratio est, quia excedit ordinarium modum humanae facultatis
majorem cognitionem obtinere in singulis actionibus. Item, quia esset intolerabile onus
obligare onmes homines ad conferendas singulas opiniones: praeterea existimo illam
rationem sufficientem: quia quamdiu est judicium probabile, quod nulla sit lex
prohibens, vel praecepiens actionem, talis lex non est sufficienter proposita, vel
promulgata homini: unde cum obligatio legis sit ex se onerosa, et quodammodo
odiosa, non urget, donec certius de illa constet, neque contra hoc urget aliqua ratio,
quia tunc revera non est contraria pars tutior in ordine ad conscientiam, neque ibi est
aliquod dubium practicum, nex periculum’.
98
See Schüßler, ‘Moral self-ownership’, pp. 162–164.
99
Francisco Suárez, ‘De fine hominis’, in Opera omnia, vol. 4, ed. Antoine Théophile
Duval (Paris, 1865–1878), II, ii, 5, pp. 19–20: ‘nec dicitur dominus, quia habeat jus ad
talem actionem, vel usum ejus quia ad actum peccati non habet jus, et tamen est
dominus illius actus: et servus non habet jus ad omnes actiones suas, quia potius est
apud dominium, et tamen est dominus suarum actionum: consistit ergo hoc dominium
tantum in libera voluntate agendi, vel omittendi suas actiones: ergo ubi non est libertas,
nec dominium erit, nec actio humana’.
behaviours – was part of a worldview that was teleological and relational;

the Jesuit view that end-directedness presupposes freedom was part of a
worldview that was considerably more subjectivist and atomistic.
These rival worldviews were exhibited, sustained and shaped by the
mendicant poverty controversy of the thirteenth century, in which the
main protagonists were the Dominicans and the Franciscans.100 It is
true, of course, that the Society of Jesus did not exist during this time;
however, as Brett argues, on matters of right and property the Jesuits
‘belong essentially within the Franciscan tradition and within the Thom-
ist insofar as it concurs with the Franciscan’.101 The controversy between
the Dominicans and Franciscans turned on the interpretation of Luke
10:1–24, wherein Christ exhorts seventy-two ‘disciples’ to spread the
Word and, while they are about it, ‘carry no moneybag, no knapsack,
no sandals’.102 Both Dominicans and Franciscans proclaimed faithful-
ness to Jesus by living in ‘poverty’. John Milbank – albeit with an evident
partiality for the Dominican position – draws the contrast clearly.
According to the Dominicans, all ownership was derived from socially
legitimated use, and therefore it was clear to them that their poverty was
one socially recognised practice belonging to the wider institution of
property. ‘The Dominican friar’s poverty was not simply “his”, since it
was made possible by certain social allowances for certain socio-religious
purposes’.103 By contrast, the Franciscans claimed that their poverty was
absolute. Anything that had the appearance of property – such as the
consumption of food – was mere ‘use of fact’, making it juridically
indifferent and therefore not property, in the same way that a horse could
not be said to ‘own’ the oats that it ate. Paradoxically, then, ‘the Francis-
can friar’s merely occasional usage . . . even though it was a refusal of
“possession”, [was] more purely “his own”, according to a supposedly
direct divinely mediated grant, since it was regarded as his minimal self-
provision for his material needs – outside all social, political and so
100
There is a large and interesting literature on the controversy and its implications. See,
inter alia: Janet Coleman, ‘Property and poverty’, in The Cambridge History of Medieval
Political Thought, c. 350–1450, ed. J. H. Burns (Cambridge, 1988); Peter Garnsey,
Thinking about Property: From Antiquity to the Age of Revolution (Cambridge, 2008),
pp. 84–106; Joseph Canning, Ideas of Power in the Late Middle Ages, 1296–1417
(Cambridge, 2011), pp. 107–132; Christopher Pierson, Just Property: A History in the
Latin West, vol. 1, Wealth, Virtue, and the Law (Oxford, 2013), pp. 109–123.
101
Annabel Brett, ‘Individual and community in the “second scholastic”: Subjective rights
in Domingo de Soto and Francisco Suárez’, in Philosophy in the Sixteenth and
Seventeenth Centuries: Conversations with Aristotle, eds. Constance Blackwell and
Sachiko Kusukawa (Aldershot, 1999), p. 164.
102
It is also the same passage in which Jesus claims that ‘the labourer is worthy of his hire’.
103
John Milbank, ‘Against human rights: Liberty in the Western tradition’, Oxford Journal
of Law and Religion, 1 (2012), pp. 203–234, at p. 222.
58 Part I
juridical allocation’.104 Where the Dominican conception of poverty was

relational (a social practice) and to that extent objective (to the extent to
which inter-subjectivity does not reduce to individual subjectivity),
the Franciscan conception was absolute and subjectivist. As Janet
Coleman puts it, ‘in reflecting on their Rule’, the Franciscans ‘displayed
a massively individualist interpretative thrust in the living of a Christian
life of virtue’.105
The picture of this litigious claimant of his absolute entitlements
coloured further domains of Franciscan thought and practice. When
the Franciscans came to talk about dominium as property, they did so in
the context of the sacrament of penance, and this is precisely the lan-
guage of dominium that the Jesuits were to inherit. Dominium, in the
Franciscan usage, was the measure of injury done to a person, and thus
the measure of restitution warranted.106 It therefore invariably – and
again paradoxically – translated as right in things. ‘That is, you have a
right just to the extent that an injury is done to you if someone contra-
venes it’.107 This is Molina’s definition of dominium:
It is a faculty of doing something, or obtaining something, or retaining
something, or relating to something in some way, which if contravened without
legitimate cause means that an injury is done to the one who has it. Right in this
sense is the measure of injury: of how much, for him, without legitimate reason,
to his detriment and prejudice, he has been wronged.108
In the context of the vocabulary surrounding the sacrament of penance,

then, dominium became for the Jesuits, as for the Franciscans before them,
a thing-right and a negative claim on others. It acquired no such meaning
in the Dominican tradition, according to which dominium as property was
one social practice in an objectively just order of relationships.
Coming to the other connotation of dominium, as mastery, it played a
key role in composing the distinctive worldviews of the Dominicans and
Jesuits. Of course, the most elevated expression of the Dominican ethos
104
Ibid., p. 223.
105
Janet Coleman, ‘Using, not owning – duties, not rights: The consequences of some
Franciscan perspectives on politics’, in Defenders and Critics of Franciscan Life, eds.
Michael F. Cusato and Guy Geltner (Boston, MA, 2009), p. 73.
106
Annabel S. Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought
(Cambridge, 1997), pp. 22–43.
107
Annabel Brett, ‘Luis de Molina on law and power’, in Companion to Luis de Molina, eds.
Alexander Aichele and Mathias Kaufmann (Leiden, 2014), p. 164.
108
Luis de Molina, De iustitia et iure (Venice, 1611), I, ii, 1, pp. 24–25: ‘Est facultas aliquid
faciendi, sine obtinendi, aut in eo insistedi, vel aliquo alio modo se habendi, cui sine
legitma causa contraveniatur, iniuria sit ea habents, quo sit, ut ius in hac, acceptione sit
quali mensura iniuriae: quantu enim ei, sine legitima causa, contravenitur &
praeiudicatur, tantum sit iniurie’.
is Aquinas’s, the teleological, objectivist and relational aspects of which

are impossible to ignore. All things in the universe, he maintained, are
ordered to their ends by God, but this ordering is collective – applying to
all things and their relations – so that things are not ordered to their
own ends discretely. All things are ordered by what Aquinas called
‘natural right’, according to which things are ‘equated’ (adaequatum) or
‘commensurate’ with each other, as ‘men are by nature commensurate
with women in begetting offspring, and parents are commensurate with
children in nurturing the latter’.109 Natural right is for Aquinas objective
and relational: it ordains one thing to another in accordance with natural
justice. There is a fundamental division in this universe between rational
and non-rational creatures, and dominium cuts to the quick of this div-
ision. For dominium, or mastery, is a quality of rational beings, which can
cognise their proper ends by means of their reason and so command
themselves to effect such ends. A person’s primary dominium of his own
acts – the ordering of his acts to an end – gives him a secondary dominium
of those things which are incapable of acting for a cognised end because
they lack reason and therefore self-mastery. Human beings, then, are
entitled to use these things for their own ends, ordaining one thing
towards another, in the image of natural right. This entitlement, in
accordance with natural justice, which comes with rationality, gives
rational actions a moral character. But it is important to stress that in
acting for the good rational beings participate in the right ordering of all
things, so that the entire universe of creatures – rational and non-
rational – takes on a moral colouring in Aquinas. Free agency is an
elevated subclass of end-directed behaviour, but all the same the free
and the unfree participate in the moral universe insofar as all are
ordained to each other and to their collective ends. Dominium marks
the difference between free and unfree, or rational and irrational, activity,
but is a difference of degree not kind, and it marks out moral from non-
moral activity in a qualified manner.
There is a distinct ‘thingness’ about dominium in the way that the
Jesuits appropriated that word in the context of the sacrament of
penance, and so there is in their handling of it in its ‘mastery’ mode.
A person’s dominium of his liberty – his having a free will that can
determine itself to its ends – is his own. It is non-teleological. It is not
determined by reason. The ‘concept of dominium as a status with rights
attached brings with it, of itself, no teleology’ beyond the purposes of the
109
Aquinas, Summa theologiae, vol. 37, Justice (IIa-IIae, qu. 57, art. 3, p. 11: ‘sicut
masculus ex sui ratione habet commensurationem ad foeminam ut ex ea generat; et
parens ad filium ut eum nutriat’.
60 Part I
dominus himself; ‘the perspective of the common good is absent’.110

Where for Aquinas dominium marks one mode of activity along a con-
tinuum where all activity bears a moral qualification and is the participa-
tion in an objective right order, for the Jesuits the dominium that belongs
to free agents is what makes their actions – and only their actions – bear a
moral qualification. It simply made no sense for the Jesuits, with their
agent-centred, inside-out, view of the universe, to claim that unfree
activity might be moral. For Aquinas, the love of God on the part of
the saints in Heaven is moral because it is rational, proceeding as it does
from perfect cognition and a rational appetite. But, according to Suárez,
the saints do what they do necessarily, and cannot therefore be worthy of
praise or blame. Something must be ‘added’ to a human act if that act is
to be called moral, and ‘nothing else can be thought of as having this
power except freedom’.111 Molina and Suárez, by seeming to divorce
morality from reason so decisively and tracing the moral to the individual
free will, bequeathed to the Jesuit tradition in ethics the problem of
trying to account for how morality is connected to natural good and evil
at all.112 All the same, the absolute priority they allotted to the free
will in morals was a response to a longstanding Jesuit commitment to
individualism and the belief that this life is but a pilgrimage that might
have many right ways.113
Finally, this contextual discussion can be brought back to bear
emphatically on the controversy de auxiliis. For Báñez’s world was Aqui-
nas’s, and this was, as we have seen, a teleological world orientated
to ends. Thus in discussions of causality – and that is what the discussion
of acting for anything is all about – Báñez, following Aquinas, attributed
priority to the Aristotelian final cause, the causality of the end. And
because Báñez’s whole world was suffused with end-directed activity,
he had no trouble with the notion that God really and physically, by
means of a created motion, irresistibly moves an agent to its ends,
through the faculty whose own end is to cognise the proper good of this
agent. On this account, to quote Aquinas, the agent’s ‘intellect moves
the will, for the will’s object is the good as it is cognised, and it moves the
110
Brett, ‘Luis de Molina’, p. 165.
111
Suárez, ‘De bonitate’, I, i, 4, p. 278: ‘ergo aliquid aliud oportet addere ad morale
actum, quod certe nihil excogitari potest praetor libertatem’.
112
Annabel Brett, ‘Human freedom and Jesuit moral theology’, in Freedom and the
Construction of Europe, vol. 2, Free Persons and Free States, eds. Quentin Skinner and
Martin van Gelderen (Cambridge, 2013).
113
Suárez invokes the notion of Christians as pilgrims frequently, and especially in the
Proemium of his treatise on law: see Francisco Suárez, ‘De legibus, seu de Deo
Legislatore’, in Opera omnia, vol. 5, ed. Antoine Théophile Duval (Paris, 1865–78),
book I, cap. xviii, pp. 69–71.
will as an end’.114 This made no sense for our Jesuits. Their view of
causality, like their outlook on the universe in general, was more atomis-
tic and also more mundane. Suárez defined a cause as that ‘whence
motion begins or whence the production or making of a thing begins’.115
He ‘holds against the Thomists that causality is not something over and
above the action of an agent, but is identical to this action, which itself
exists as a mode of the effect’.116 In other words, causality just is that
which an agent does and which brings about an effect. The power of an
agent to act as an efficient cause of its own actions is that power which
Suárez and Molina both called will; and it is not for nothing that Suárez’s
most substantial analysis of the faculty of will was situated in a general
disputation on efficient causality.
Of Aristotle’s four kinds of cause, then, only one – efficient causality –
is really a cause on this Jesuit view, while the others (material, formal and
final) are called causes analogically. Comparing the efficient cause to the
material and formal causes, Suárez wrote:
The efficient cause most properly influences being; matter and form, however, do
not so much properly influence being as compose it through themselves. And
therefore, for this reason, it seems that the name ‘cause’ is primarily said of the
efficient cause. To matter and form, it is carried over by a certain proportionality.117
The word influence is important here. Causes are supposed to ‘influence
being’. By arguing for the priority of the efficient cause, Suárez was
employing the word influence in a different way from the Thomists. For
them, influence was literally a ‘flowing in’ of something into something
else, and things always flowed downwards. This supported an account of
causality as being hierarchical, with final causes discharging from on high
and unilaterally their substance, first through formal, then efficient, then
material channels. But from the thirteenth century a gradual shift in the
meaning of ‘influence’ took place, by which it was flattened and varie-
gated, so that an influence became one causal factor among many: in the
way that someone might be influenced to shop at one supermarket rather
than another by the fact that there is a good offer on shampoo, or it is on
114
Aquinas, Summa theologiae, vol. 11, Man, Ia, q. 82, art. 4, p. 226: ‘intellectus movet
voluntatem: quia bonum intellectum est objectum voluntatis, et movet ipsam ut finis’.
115
Francisco Suárez, ‘Disputationes metaphysicae’, in Opera omnia, vol. 25, ed. Antoine
Théophile Duval (Paris, 1865–1878), XXVII, i, 8, p. 951: ‘unde incipit motus, seu
production vel factio rei’.
116
Tad M. Schmaltz, Descartes on Causation (Oxford, 2008), p. 32.
117
Suárez, ‘Disputationes’, XXVII, i, 8, p. 952: ‘Nam efficiens propriissime influit esse: materia
autem et forma non tam proprie influunt esse, quam componunt illud per seipsas, et ideo
secundum hanc rationem videtur nomen causae primo dictum de efficiente: ad materiam
autem vel formam esse translatum per quamdam proportionalitatem’.
62 Part I
the bus route home, or the queues tend to be shorter. For Suárez, there is
no necessary hierarchy of the influences that make up causes; and, in
fact, it looks to him like agent-causes are really the proper influences on
the way that the world turns out.118
Ends, Suárez maintained, can still be called causes, but only in a very
restricted and attenuated sense. The end, according to Suárez, can be
called a cause in the sense that agents act for the sake of something and
therefore the final cause ‘is first in intention’.119 However, the final cause
does not necessarily exist when it ‘causes’; as something striven-for, it
may exist only as a ‘being of reason’.120 This means that it is not ‘real’.
The three causes other than the final cause are alike in that they contribute to the
being of the effect through a real influence and therefore they require real
existence for their causalities . . . But the final cause influences intentionally and
for this reason can cause before it really exists in itself.121
If the final cause is not ‘really’ a cause, it is only one analogically or
‘metaphorically’, in the way, say, that a meadow is said to smile ‘meta-
phorically’ ‘by its blooming, not absolutely, but inasmuch as the meadow
by its blooming keeps some proportionality to the smiling human
being’.122 And he added revealingly: ‘All true analogy of proportionality
includes something of a metaphor and impropriety’.123
When Báñez, then, argued that God really and physically moves the
human will, he was, to the Jesuit mind, collapsing metaphorical causality
into real causality, and confusing the physical realm with the moral one.
By further claiming that God’s causal activity in this respect preserved the
nature of the human agent as free, Báñez only heaped contradiction upon
contradiction.
***
118
I owe this account of the trajectory of the word influence to Jacob Schmutz, ‘La doctrine
médiévale des causes et la théologie de la nature pure (XIIIe-XVIIe siècles)’, Revue
Thomiste, 101 (2001), pp. 217–264.
119
Francisco Suárez, ‘Disputationes’, XXIII, i, 1, p. 846: ‘primus in intentione’.
120
A recent and useful treatment of Suárez on ‘beings of reason’ is Christopher Shields,
‘Shadows of beings: Francisco Suárez’s entia rationis’, in The Philosophy of Francisco
Suárez, eds. Benjamin Hill and Henrik Lagerlund (Oxford, 2012).
121
Suárez, ‘Disputationes’, XII, iii, 19, p. 394: ‘tres aliae causae praeter finalem
conveniunt in hoc quod conferunt ad esse effectus per realem influxum, ideoque
requirunt existentiam realem ad suas causalitates . . . causa autem finalis influit
intentionaliter ideoque causare potest antequam in se realiter existat’.
122
Francisco Suárez, ‘Disputationes metaphysicae’, in Opera omnia, vol. 26, ed. Antoine
Théophile Duval (Paris, 1865–1878), XXVIII, iii, 3, p. 13: ‘viriditate sua, non absolute,
sed prout servat quamdam proportionem pratum viride ad hominen ridentem’.
123
Ibid., XXVIII, iii, 11, p. 16; emphasis mine: ‘Omnis vera analogia proportionalitas
includit aliquid metaphorae et improprietas’.
For Báñez, human action participates in divine action. He did not

consider that his account of human agency denied human freedom.
Participation in a world ordered by God to his purposes just is freedom.
Nor should we be troubled that our actions, on this picture, seem not to
be our own. Báñez might have said, with Aquinas, that the light cast by
the moon is its own even though it is borrowed from the sun; and that the
oceans by their own nature are tidal even though this is an attribute
determined by the moon.124 Our nature is as free creatures, and God’s
contingent movement of a person’s will does not diminish the inherent
freedom of that faculty, so that the actions one produces are really one’s
own and freely willed.
Molina and Suárez disagreed. This chapter has shown why they did and
the alternative faculty psychology that they sketched in response. For
them, natural human beings simply do not participate in the divine esse
in the same way that they do in the Thomist tradition. Earth is not
Heaven. Terrestrial life is a halting, fitful adventure, often sinful, and we
must perpetually say sorry and try to do better. But the adventure is our
own, made possible only by our possession of free wills. The human will
requires the cognitions of the world and reasons for acting in it which are
supplied by the intellect, but it retains on all occasions a qualified indiffer-
ence to these causes that secures for the person his or her freedom.
The discussion in Chapter 2 will focus in part on the appropriation of
Jesuit faculty psychology in seventeenth-century Lutheran Germany,
where it will be connected back to a theme established in the Introduc-
tion, the idea of the person. In this chapter, I have sometimes used the
term person to designate the kind of human being that Molina and Suárez
wrote about, but that is not quite right: in their discussions of freedom,
they mentioned free agents and free men who possessed free will, but not
free persons per se. They were being careful. Suárez in particular also
wrote about the Holy Trinity, and therefore reserved use of the term
person for the Trinitarian context, in order to understand how Father,
Son and Holy Spirit are one God subsistent in three persons, and
relatedly how divine and human nature are united in the second person
of the Trinity, that is, how Christ is truly God and truly man.125
But ‘free person’ is not off the mark. Christianity bequeathed to the
world a way of thinking about personhood, intelligible outside the
124
See John Milbank, The Suspended Middle: Henri de Lubac and the Renewed Split in Modern
Catholic Theology (Grand Rapids, MI, 2014), p. 107.
125
For Suárez’s contributions to these questions, see especially Stephen A. Hipp, ‘Person’
in Christian Tradition and the Conception of Saint Albert the Great: A Systematic Study of Its
Concept as Illuminated by the Mysteries of the Trinity and the Incarnation (Münster, 2001),
pp. 492–499.
64 Part I
Trinitarian framework, which we shall encounter in Chapter 2. This was

a conception shared by Dominicans and Jesuits alike. In their debates
about human freedom, the underlying conception of the creature
about the nature of whose freedom they were quarrelling was common
territory. Both sides were contesting the character and extent of the
freedom of the human person, but on the essentials of what constituted
human personhood they were fundamentally in agreement.
2 The Constitution of the Person of the State
The Molinist theory of liberty did not long remain an exclusively Jesuit
theory of liberty. Certain Lutheran writers, in particular, took it up
during the course of their own clashes with emergent Reformed confes-
sions in Protestant Christianity. Thus appropriated, it would go on to
play a decisive role in shaping the conception of sovereignty in early-
modern political entities. This is the part of the story that I begin to tell in
the present chapter.
The main subject of it is Samuel von Pufendorf. Pufendorf was
indebted, I argue, to the Jesuit theory of liberty explained in Chapter 1.
Suárez’s conception of the life of the mind applied not only to human
individuals, Pufendorf maintained, but also to the ‘composite moral
person’ of the state. It may be that the sovereign’s is the only will in the
state that counts politically; however, the state has an intellect too, separ-
ate from will, and sovereign will is circumscribed by the same grounding
requirements that Suárez had elaborated in his accounts of the configur-
ation of the cognitive faculties in free human action. Pufendorf’s theory
of the state, then, has decidedly constitutionalist hues, for Pufendorf in
fact argued that the discretionary exercise of sovereign will is limited by
its necessary conditions.
This is an argument distinctly at odds with how Pufendorf’s theory of
the state is usually portrayed in the growing secondary literature that
deals with it. His political theory is often thought to be imitative, his
importance traced to his status as transmitter to the European continent
of ideas about political absolutism expounded in England. I discussed
Quentin Skinner’s reading of Pufendorf as a Hobbesian in the Introduc-
tion. Skinner is not alone. Pufendorf, it is said, was the foremost ‘disciple
of Hobbes’ in the early-modern German lands,1 articulating a ‘neatly
1
Fiammetta Palladini, ‘Pufendorf disciple of Hobbes: The nature of man and the state of
nature: The doctrine of socialitas’, History of European Ideas, 34 (2008), pp. 26–60. This is
the English translation of one chapter of her Samuel Pufendorf discepolo di Hobbes: Per una
reinterpretazione del giusnaturalismo moderno (Bologna, 1990).
65
66 Part I
Hobbesian theory of sovereignty for continental European

consumption’.2 In other words, he vindicated ‘a singular and exclusive
authority and power’ in the state ‘which neither recognises nor answers
to any other power’.3 His ambition was ‘to free the sovereign’s law-
making commands from any effective appeal to higher moral norms’.4
At best, Pufendorf could be said to have been promoting ‘enlightened
absolutism’.5
Such an interpretation of Pufendorf is mistaken, and this means that
the influence that his ideas about the state and sovereignty would go on
to exert has also been misunderstood. This chapter provides instead
an analysis of Pufendorf’s political thought which takes seriously
his subscription to a version of the Jesuit theory of liberty that itself
provides a framework for his conception of the powers of the person of
the state. It opens, in Section I, with an account of the broad intellectual
context in which the Molinist theory of liberty came to be adopted
in Lutheran circles, as Lutherans reacted against the prominence in
Calvinism allotted to God’s determination of all creaturely actions.
What we see is a dispute within Protestantism that mirrors in many
aspects the Catholic controversy de auxiliis. It then turns to Pufendorf,
describing in Section II his theological purposes and showing that these
were in line with Lutheran orthodoxy. It goes on, in Section III, to
demonstrate Pufendorf’s adoption of Suarezian faculty psychology and
the account of human free will that it undergirded. In Section IV,
we move to the terrain of political theory. I show how Pufendorf
deployed the Jesuit/Lutheran theory of human liberty at another level of
analysis, namely, that of the state as a person in its own right. Pufendorf
developed his theory of what I call facultative sovereignty for religio-
political purposes, which are discussed in Section V. These turned
on the felt need, on the one hand, to unite the denominationally dispar-
ate states of Germany under a single supreme sovereign, while on the
other reserving to the communities constituting the German Empire,
many of which were Protestant, a right to resist this sovereign who was,
after all, a Catholic.
2
Harold James, The Roman Predicament: How the Rules of International Order Create the
Politics of Empire (Princeton, 2006), p. 119.
3
Richard Devetak, ‘Between Kant and Pufendorf: Humanitarian intervention, statist anti-
cosmopolitanism and critical international theory’, Review of International Studies, 33
(2007), pp. 151–174, at p. 164.
4
Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern
Germany (Cambridge, 2001), p. 149.
5
Otto von Gierke, The Development of Political Theory, trans. Bernard Freyd (London,
1939), p. 173.
The Constitution of the Person of the State 67
I. Molinist Liberty and Lutheranism

The influence of Suárez on early modern German Protestant philosophy
went well beyond the uptake of his theory of human liberty. The reasons
for this impact are disputed. For some, Suárez was influential because his
Metaphysical Disputations, in which he attended to ‘four centuries of
Christian speculation [as] a dispassionate judge’6 and put ‘ontological
problems into a systematic form for the first time’,7 limned ‘a confes-
sionally neutral, possible world to which all those who accepted the
doctrine of creation could subscribe’.8 Suárez helped Catholics and
Protestants alike to see that theological problems were ‘problems of logic
and metaphysics’ and thus that their disagreements could be overcome.9
For others, Suárez’s metaphysical theories were taken up by Lutherans in
order to support their own positions against the Reformed with respect to
such divisive issues as the nature of the hypostatic union (the union of
divinity and humanity in Christ) and the Eucharist.10 None of this need
concern us here, where it will suffice to plot the appropriation of the
Jesuit theory of liberty by Lutherans in the early-modern period.
Lutheranism and Calvinism are often both accused by their theological
opponents of obliterating human free will in order to uphold God’s
sovereignty over creation. Bañez’s theory of physical premotion may well
have implied the same; but at least he affirmed human free will. Luther
and Calvin did no such thing. Luther put it bluntly: ‘God’s foreknow-
ledge and omnipotence are diametrically opposed to our free choice’.11
God knows nothing contingently, but . . . he foresees and purposes and does all
things by his immutable, eternal, and infallible will. Here is a thunderbolt by
which free choice is completely prostrated and shattered . . . If his foreknowledge
is an attribute of his will, then his will is eternal and unchanging, because that is
its nature; if his will is an attribute of his foreknowledge, then his foreknowledge is
eternal and unchanging, because that is its nature. From this it follows irrefutably
that everything we do, everything that happens, even if it seems to us to happen
6
Étienne Gilson, Being and Some Philosophers (Toronto, 1952), p. 99.
7
Martin Heidegger, The Basic Problems of Phenomenology, trans./ed. Albert Hofstadter
(Bloomington, IN, 1988), p. 80.
8
Charles H. Lohr, ‘Metaphysics’, in The Cambridge History of Renaissance Philosophy, eds.
Charles B. Schmitt and Quentin Skinner (Cambridge, 1988), p. 629.
9
Wilhelm Schmidt-Biggemann, ‘New structures of knowledge’, in A History of the
University in Europe, vol. 2, Universities in Early Modern Europe, ed. H. de Ridder-
Symoens (Cambridge, 1996), p. 518.
10
John D. Kronen, ‘Francis Suarez’s influence on Lutheran scholasticism’, paper
presented at the Patristic, Medieval, and Renaissance Society conference (Villanova,
PN, October 9, 1999); Hunter, Rival Enlightenments, pp. 43–44.
11
Martin Luther, ‘The bondage of the will’, in Luther and Erasmus: Free Will and Salvation,
eds. E. Gordon Rupp and Philip S. Watson (Philadelphia, 1969), p. 243.
68 Part I
mutably and contingently, happens in fact nonetheless necessarily and

immutably, if you have regard to the will of God. For the will of God is
effectual and cannot be hindered, since it is the power of the divine nature itself.12
Likewise, Calvin stressed God’s universal and total providence, so that

nothing could happen but what God had decreed and moved so to
happen:
Providence consists in action; for it is ignorant trifling to talk of mere prescience . . .
For we do not, with the Stoics, imagine a necessity arising from a perpetual
concatenation and intricate series of causes, contained in nature; but we make
God the Arbiter and Governor of all things, who, in his own wisdom, has, from the
remotest eternity, decreed what he would do, and now, by his own power, executes
what he has decreed. Whence we assert, that not only the heaven and the earth,
and inanimate creatures, but also the deliberations and volitions of men, are so
governed by his providence, as to be directed to the end appointed to it.13
Luther admonished his flock not to inquire how this conception of an

all-controlling God could be squared with God’s justice and goodness.
Rather, he bid them to ‘adore these mysteries’. ‘The same must be said’,
he wrote, ‘to those who ask why [God] permitted Adam to fall, and why
he creates us all infected by the same sin, when he could either have
preserved him or created us from another stock or from a seed which he
had first purged. He is God, and for his will there is no cause or reason
that can be laid down as a rule or measure for it, since there is nothing
equal or superior to it, but it is itself the rule of all things’.14 Calvin
similarly argued that God ‘dwells in inaccessible light’, that ‘his judg-
ments are deeper than the lowest abyss’, and therefore that ‘if men seek
to be too inquisitive, this immense chaos should absorb all their
senses’.15 Nonetheless, it would be wrong to suppose that succeeding
Lutherans and Calvinists inquired no further, and merely accepted the
teachings of their founders on the divine sovereignty–human will conun-
drum. A debate soon arose between early Lutherans and Calvinists on
this question, with the Lutherans staking a position informed by Molina’s
and Suárez’s conceptions of middle knowledge and human freedom.
Lutheranism and Calvinism have different conceptual cores. For Cal-
vinists, this core is God’s sovereignty; for Lutherans, it is the doctrine of
justification. Luther’s momentous suggestion was that justification is not
a process by which corrupted human beings are made righteous by the
12
Ibid., pp. 118–119.
13
John Calvin, Institutes of the Christian Religion, trans./ed. John Allen (Grand Rapids, MI,
1949), I, xvi, 8, p. 191.
14
Luther, ‘Bondage of the will’, p. 236.
15
Quoted in David C. Steinmetz, Calvin in Context (New York, 1995), p. 47.
divine assistance of grace, but that justification is instead a declaration that

believers are saved by the absolute favour of the God whose son died in
order to save them. This imputative conception of justification remained
the core of Lutheranism; other early commitments could be reorientated
around this core, in order better to buttress it or else penetrate into the
various mysteries of Christianity. Lutheranism – a theological system that
placed the utter humiliation of God in Christ on the cross at its centre –
soon gave up Luther’s own denial of free will for the sake of upholding
divine omnipotence. As Alister McGrath writes:
the history of Lutheranism indicates that a wedge was driven between the
concepts of an alien justifying righteousness and an enslaved will at a
comparatively early stage, the former being constantly maintained as de fide, the
latter being abandoned or reduced to the mere assertion that humans cannot
justify themselves . . . This implicit criticism of Luther by Lutheranism may be
taken as demonstrating that there is no fundamental theological connection
between the two concepts. They are two essentially independent statements
about justification, related only by the personality of Luther. With his death,
that relation ceased to exist within Lutheranism.16
Calvinists, by contrast, continued to deny free will in the name of

exhaustive divine sovereignty.
Room in the Lutheran theological system for free will began to be
made by Luther himself. Curiously, he argued that in ‘inferior things’ –
everyday life – men are able to effect a two-way choice over the means to
an end, exercising a kind of ‘co-operation’ with God in the ‘middle part’
of such actions, although God continues to rule over the habits of the
heart and the final goal of the will.17 This space was opened up by Phillip
Melanchthon, Luther’s close friend, codifier of Lutheranism (in the
various iterations of his Commonplaces) and author of its most famous
statement of doctrine, the Augsburg Confession of 1530. Melanchthon
was motivated by genuine concerns about the well-being of the state and
the upholding of law, and was anxious that Luther’s determinism seemed
to eliminate people’s responsibility for civil order. Thus Luther’s ‘inferior
things’ were extended to incorporate the matter of civil, as well as of
quotidian, life.18 In later writings, Melanchthon went yet further in
taking the determinist wind out of the Lutheran sails, by developing an
account of free will in conversion to salvific Christianity, what Gregory
16
Alister McGrath, Iustitia Dei: A History of the Christian Doctrine of Justification, 3rd edn.
(Cambridge, 2005), p. 231.
17
Risto Saarinen, Weakness of Will in Renaissance and Reformation Thought (Oxford, 2011),
pp. 128–131.
18
Sachiko Kusukawa, The Transformation of Natural Philosophy: The Case of Phillip
Melanchthon (Cambridge, 1995).
70 Part I
Graybill has called ‘evangelical free will’. Blanching at a corollary of

Luther’s determinism – his ‘two wills’ doctrine, according to which
God’s ‘revealed will’ of universal salvation is confounded by his ‘secret
will’ of causing some to respond in faith to that promise but not others –
Melanchthon argued that the human will was in fact free passively to
assent to God’s promise, or else actively to reject it. ‘Human beings
contributed no merit towards their own salvation, but strictly and pas-
sively they simply received the imputed merit of Jesus Christ’.19
Melanchthonian Lutherans in fact took up certain Jesuit arguments in
their intra-Protestant debates with predestinarian Calvinists.20
According to Calvin, God’s saving grace is always efficacious for those
to whom it is offered, because a person’s conversion has been foreor-
dained by God, whose providence consists in his particular ordering
of each individual thing – including the human will – by the
predetermination of his will. As Molina summarised Calvin’s position,
‘Calvin and other heretics’ ‘assert God alone to be the cause of the
will’s act’ because ‘although the will actively concurs, it nevertheless
concurs as determined, so that it cannot oppose the motion of God
which efficaciously operates that act’.21 As far as Molina was concerned,
Báñez replicates Calvinist anti-libertarianism in his own theory of free-
dom.22 Both assert that God demands what it is impossible, in their
19
Gregory Graybill, Evangelical Free Will: Phillip Melanchthon’s Doctrinal Journey on the
Origins of Faith (Oxford, 2010), p. 290.
20
It is worth noting that Jesuit arguments for free will were taken up by other anti-Calvinist
Protestant denominations than Lutheranism. For instance, Remonstrance was especially
strong in the Netherlands, and was inspired by Jacob Arminius’s Molinist theology. See
Eef Dekker, ‘Was Arminius a Molinist?’, Sixteenth Century Journal, 27 (1996),
pp. 337–352. Remonstrance exerted a strong influence on Hugo Grotius’s views on
human nature and also on politics. See Alexander Schmidt, ‘Irenic patriotism in
sixteenth- and seventeenth-century German political discourse’, Historical Journal, 53
(2010), pp. 243–269.
21
Luis de Molina, ‘Censura contra propositiones vigintitres Patris Fratris Dominici
Bannes’, in Geschichte des Molinismus, vol. 1, Neue Molinaschriften, ed. Friedrich
Stegmüller (Münster, 1935), p. 482: ‘Calvinus et alii haeretici . . . Quare ideo Deum
solum asserunt esse causam actus voluntatis, quoniam licet voluntas active concurrat, ita
tamen determinata concurrit, ut Dei motioni quae efficaciter illum actum operatur,
refragari non possit’.
22
Molina draws the parallel between Calvin and Bañez explicitly in his discussion of the
following passage from Bañez: ‘A certain and immutable decision of divine will or infallible
predefinition of divine providence antecedes our free operation; which decision or
predefinition predefines every good free operation and indeed every operation inasmuch
as it is good and is done with respect to the good’ (Bañez, ‘Scholastica commentaria’,
p. 225, commenting on ST I q. 19 art. 10): ‘Antecedit operationem nostram liberam
divinae voluntatis certum et immutabile consilium, siue divinae providentiae infallibilis
praedefinitio, quae omnem bonam operationem liberam praedefiniuit, immo & omnem
operationem, in quantum bona est & circa bonum exercitur’.
terms, for many individuals to attain. But the Bañezian and Calvinist
retort was that in teaching that the grace of God required for the per-
formance of good acts derives its efficacy from the mode of response of
the recipient of that grace, Molina was propagating the Pelagian heresy
that the human person has the initiative in salvation.23
Suárez recognised the weakness of Molina’s doctrine of grace on this
point, but believed that Molina’s own theory of middle knowledge pro-
vided the solution. The grace of God required by the human will in order
to respond to his call is always efficacious, maintained Suárez, but it
is efficacious because it achieves what God expects. Grace warrants
the term efficacious based on its proper anticipation of a future result
rather than its effect.24 Grace is therefore always sufficient (contra Bañez
and Calvin), and never rendered inefficacious by human free decision
(contra Molina). Such grace that exists as a component of the general
concurrence and which manifests God’s call for all rational creatures
freely to exercise a life of faith Suárez called vocatio. This concept subse-
quently came to occupy a central place in Lutheran theology, thanks in
large part to the systematic theology of Abraham Calov (1612–1686).25
Calov took from Suárez the notion of calling as an act of God whose
efficacy is anchored in God’s infallible expectation of a result, seen in his
scientia media, rather than in the effect of the act itself. Vocatio thus
enabled a theocentric account of the psychological economy of freedom
that could nonetheless maintain human free will. Calov, all the same,
extended the sense in which God’s grace could be said always to be
efficacious. In typically Lutheran fashion, faith is always discussed
together with the terms Word and Christ. Faith could not exist independ-
ently from its object. Viewed in terms of human psychology, faith signi-
fied a response to that object, and the object is the preached Word, or
Christ who ‘becomes present’ to the believer in the Word of the Gospel.
The Word, then, is a call to faith, and God calls all to faith equally.
Here lies the root of its efficacy for all time, while still preserving human
free will. The Word itself is the promise of forgiveness, extended to all
people. ‘Calov’s understanding of calling makes efficacy a quality of
the res offered by the call. Simply put, vocatio is efficax because its
promise of forgiveness is effective; it counts – regardless of whether or
not the hearer accepts it’.26 Grace is now always efficacious not only
23
Bañez, ‘Apologia’, Prol. §5, p. 120.
24
Francisco Suárez, ‘Tractatus de gratia’ in Opera omnia, vol. 8, ed. Antoine Théophile
Duval (Paris, 1865–1878), V, 25, p. 517.
25
Kenneth G. Appold, Abraham Calov’s Doctrine of Vocatio in Its Systematic Context
(Tübingen, 1998), p. 90.
26
Ibid., p. 123.
72 Part I
in Suárez’s sense – God always correctly anticipates its result – but also
because a promise is a speech act: it does something, and thus makes its
mark on the world.
The Word of the Gospel, according to Calov, applies justification.
‘Those whom God calls by the Word of the Gospel, he not only wishes
that they, by an internal and serious affect of the heart, be regenerated,
illuminated and converted, but he intends efficaciously to regenerate,
illuminate and convert them – unless they themselves create an obs-
tacle’.27 The Word intends to illuminate, regenerate and convert,
because if accepted it moves sinners from the dark into the light and
leads people into the Church. When accepted, sanctification and glorifi-
cation can be imputed to the hearer in view of God’s pact with Christ,
who alone merits that gracious commitment on humanity’s behalf.
Vocatio executes God’s mercy.28 Calov adopted a Suarezian model of
faculty psychology in order to elucidate the operation of the cognitive
faculties in cognising and assenting to the Word. It is up to the formally
free faculty of the will to assent to what has been cognised by the
intellect – although, in Melanchthonian style, he speaks of the will’s
ability ‘to reject or not reject’ the dictates of the Word-cognising intellect,
in order to avoid any Pelagian implications.
Subsequent Lutheran theologians found much to argue about with
respect to Calov’s system. Some, such as Georg Calixt (1586–1656),
disagreed with Calov’s view that the literal words of scripture, identical
with all other referential language, carried sufficient divine power for
conversion of the hearer. (Calov’s response was to insist that it was
the Gospel itself, the thing signified, rather than its mode of signification,
which gave rise to the power of persuasion that accompanied its proclam-
ation.)29 Others, such as Johannes Quenstedt (1617–1688), were con-
cerned that Calov’s stress on the acceptance of the promise of
forgiveness did not by itself amount to the perseverance in faith required
for salvation.30 All the same, Suarezian faculty psychology and middle
knowledge became staples of Lutheran orthodoxy during the seventeenth
century, commitments that further propagated intra-Protestant discord.31
27 28 29
Quoted in ibid., p. 106. Ibid., p. 128. Ibid., pp. 117–123.
30
Ibid., pp. 109–112.
31
Calvinists such as Francis Turretin (1623–1687) argued that ‘middle knowledge takes
away the dominium of God over free acts because according to it acts of the [human] will
are supposed to be antecedent to the [divine] decree and therefore have their future
realisation not from God but from it [the human will] instead. Indeed God would seem
to depend rather on the creature while he could decree or effect nothing’: Francis
Turretin, Institutes of Elenctic Theology, ed. James T. Dennison, trans. George
Musgrave Giger (Phillipsburg, NJ, 1992–1997), 3rd topic, XIII, viii, 1, p. 215.
Those who are elect, Lutherans argued, are so because of God’s middle
knowledge of their persistence in faith until the end, faith itself at least
taking its beginning from the non-rejection by the free will of the cognised
Word of God. Quenstedt, but also Johann Baier (1647–1698), Johann
Adam Scherzer (1628–1683), David Hollaz (1648–1713) and
Johann Franz Buddeus (1667–1729) all came to subscribe to some version
of the Molinist theory of liberty and its allied doctrine of scientia media.32
II. Pufendorf’s Theology

Samuel von Pufendorf was one Lutheran writer who adopted a Suarezian
model of faculty psychology and the attendant doctrine of middle
knowledge. We can be pretty sure that Suárez himself exercised no
efficient causality with respect to Pufendorf’s coming to have these
commitments; Pufendorf adopted them as Lutheran doctrines, at least
in his overtly theological works. Pufendorf’s explicit engagement with
Suárez was minimal, and his comments on him wholly pejorative. In the
Specimen controversiarum (1678), in a passage that shows clear evidence
of Hobbes’s influence, Pufendorf put Suárez at the head of a list of
Scholastics charged with inhabiting the ‘kingdom of darkness’ (regni
tenebrarum), trafficking as they did in frivolous but futile distinctions that
contributed nothing to civil life. It was better to know nothing than
to know Scholastic philosophy, he concluded.33 In the Spicilegium
controversiarum (1680), Pufendorf attacked Suárez’s philosophical
anthropology for, in his view, relying on too strong a homology between
the ends of God and those of men.34 There are no other references to
Suárez in any of Pufendorf’s published works. Nor did he cite him in
the private correspondence that we have been left.35 He owned none of
Suárez’s books at his death.36 Still, we should not be surprised
32
Karl Barth, Church Dogmatics. II. 1 The Doctrine of God (London, 2010), p. 145. (Barth
was himself appalled by the development.)
33
Samuel von Pufendorf, ‘Specimen controversiarum’, in Samuel von Pufendorf, Eris
Scandica, ed. Fiammetta Palladini (Berlin, 2002), II, v, pp. 131–132. Pufendorf
described Jesuit education in particular as proving ‘advantageous to the Kingdom of
Darkness’ in his An Introduction to the History of the Principal Kingdoms and States of
Europe, ed. Michael J. Seidler, trans. Jocodus Crull (Indianapolis, 2013), XII, § 35,
p. 502. Horst Dreitzel remarks on Pufendorf’s adoption of the phrase, as well as other
borrowings, in his ‘The reception of Hobbes in the political philosophy of the early
German Enlightenment’, History of European Ideas, 29 (2003), pp. 255–289.
34
Samuel von Pufendorf, ‘Spicilegium controversiarum’, in Pufendorf, Eris Scandica, I, x,
p. 209.
35
Samuel von Pufendorf, Briefwechsel, ed. Detlef Döring (Berlin, 1996).
36
Fiammetta Palladini, La biblioteca di Samuel Pufendorf: Catalogo dell’asta di Berlin del
settembre 1697 (Wiesbaden, 1999).
74 Part I
that Pufendorf barely mentioned the master of the second Scholastic, or

that when he did he did so disapprovingly. Suárez had in 1613 argued
that the pope was entitled to depose a Protestant monarch directly,
or else ‘indirectly’ by approving that the community depose him, or even
by issuing a mandate that any private person may licitly kill him.37
Pufendorf spent much of his professional life in the service of Lutheran
political rulers, working at various times from 1658 as a private tutor,
official historian and privy councillor for the royal households of Sweden
and Brandenburg.38 He apparently never visited a Catholic territory nor
corresponded with any Catholic during his lifetime. He argued in his
tract on religion and politics in 1687 that it was anathema that a priest
should be able to release subjects from their obedience to their earthly
sovereign.39 Pufendorf harboured a particular animosity towards the Soci-
ety of Jesus, whose members ‘stretched to the utmost’ the doctrine of
papal infallibility,40 and who had ‘found means, under pretence of being
Confessours, to creep into most Courts, and to insinuate themselves into
the very Secrets of the State’, while all the time being mindful ‘of the Popes
and their own Interest’.41 He considered the Jesuits to be behind the
persecution of Protestants carried out in many Catholics states: referring
to the harassment of the Huguenots in France, he observed caustically that
‘among Christ’s Apostles there was not a single dragoon’.42
Pufendorf’s last major work, The Divine Feudal Law, published post-
humously in 1695, was his most emphatically theological. Today, it is
more often read for its arguments about religious toleration.43 For the
most part, though, the book is given over to an attempt to devise a
theological system by which to reconcile Lutherans and Calvinists.
37
For Suárez’s political theory, see: Höpfl, Jesuit Political Thought, pp. 256–257; Mónica
Brito Vieira, ‘Francisco Suárez and the Principatus Politicus’, History of Political Thought,
29 (2008), pp. 273–294; Daniel Schwartz, ‘Francisco Suárez on consent and political
obligation’, Vivarium, 46 (2008), pp. 59–81.
38
For a concise account of Pufendorf’s life, see Michael J. Seidler, ‘Pufendorf’s moral and
political philosophy’, in Stanford Encyclopaedia of Philosophy (updated March 2013), part 1,
http://plato.stanford.edu/entries/pufendorf-moral/#LifWor (accessed May 1, 2014).
39
Samuel von Pufendorf, Of the Nature and Qualification of Religion in Reference to Civil
Society, ed. Simone Zurbuchen, trans. Jocodus Crull (Indianapolis, 2002), § 113, p. 113.
40 41
Pufendorf, Introduction, XII, § 33, p. 495. Ibid., XII, § 35, p. 503.
42
Quoted in Detlef Döring, ‘Samuel von Pufendorf and toleration’, in Beyond the
Persecuting Society: Toleration before the Enlightenment, eds. John Christian Laursen and
Cary J. Nederman (Philadelphia, 1998), p. 185.
43
Two recent engagements with the text are Thomas Ahnert, ‘Samuel Pufendorf and
religious intolerance in the early Enlightenment’, and Simone Zurbuchen, ‘Religious
commitment and secular reason: Pufendorf on the separation between religion and
politics’, both in Natural Law and Toleration in the Early Enlightenment, eds. John
Parkin and Timothy Stanton (Oxford, 2013).
Lutheranism, as might be expected, fares somewhat better; and this was

the free-will Lutheranism of Calov and others. Pufendorf was prepared to
concede to Reformed theology an extremely important point: the coven-
antal or federal character of the ties between God and man. Luther had
stressed the promise of the Gospel and the faith that was required to
grasp that effective promise. For him, the Word was a testament: a one-
sided promise. A two-way covenantal agreement would imply that that
promise only became effective when an individual made good on his own
side of the bargain.44 To Pufendorf’s mind, however, testament is itself a
mistranslation of the biblical terms berith and diathekes, when properly
they have ‘the Signification of a Covenant’.45 The problem with trying to
capture the obligations to mankind which God had taken upon himself
in terms of testament is that ‘a Testament is not of Force unless he be
dead who made it’ – and it was inappropriate to countenance the
‘last Will’ of the living God.46 The Reformed, however, understood that
God had entered into a covenant with humanity through the mediation
of the God-Man, Jesus Christ.47 Christ ‘entred into [a] Covenant with
God himself to expiate Mankind, and to take upon himself in that
Respect to bear the Person, and stand in the Stead of all Men’.48
He ‘substituted himself by the Father’s Consent into the Place and
Person of Mankind, to satisfie the Divine Justice for their Guilt
44
As Calov’s work shows, the Lutheran emphasis on the efficacy of the promise offered by
the Gospel is part of a broader anti-Pelagian endeavour to locate the soteriological
impetus in the activity of God. Luther’s concentration on the Gospel, and therefore on
the New Testament, meant that he allotted much less importance to the Old Testament
than did the Reformed dispensations. Of course, the Old Testament is replete with
descriptions of covenants: the Adamic, Noahic, Abrahamic, Mosaic and Davidic.
Calvinists, who did not gloss over the Old Testament so lightly, were therefore
perhaps much more keenly attuned to Scripture’s frequent pronouncements of the
covenantal character of divine/human interaction.
45
Samuel von Pufendorf, The Divine Feudal Law: Or, Covenants with Mankind, Represented,
ed. Simone Zurbuchen, trans. Theophilus Dorrington (Indianapolis, 2002), § 47,
p. 103/51. The page number after the slash points to the appropriate page in the most
modern critical edition, from which any Latin interpolations are taken: Samuel
Pufendorf, Jus feciale divinum, ed. Detlef Döring (Berlin, 2004).
46
Pufendorf, Divine Feudal Law, § 47, pp. 103–104/51.
47
To be precise, this is the second divine feudal covenant that Pufendorf discussed in his
book. The first was that between God and Adam, as mankind’s representative, and
which was renewed on terms compatible with the postlapsarian condition. Both were
legitimated according to ‘divine feudal law’, which, as Michael Sonenscher puts it, was
‘feudal because the original relationship between God and Adam was analogous to the
reciprocal relationship involved in two different ways of owning property’ in the feudal
system: ‘Adam, as the representative of mankind, was given the earth for his use, while
God remained its ultimate owner’. See Michael Sonenscher, Sans-Culottes: An
Eighteenth-Century Emblem in the French Revolution (Princeton, 2008, p. 224).
48
Pufendorf, Divine Feudal Law, § 40, p. 93/46.
76 Part I
contracted by the Fall, and all the sins which spring from thence’.49
Righteousness may be imputed to humankind by the righteous Jesus’s
commitment to bear their person,50 although men only ‘become Par-
takers of the Divine Covenant, when with Faith we embrace the Saviour,
and by this are united with him’.51
Thus, according to the new covenant that God made with mankind
through the Mediator, whoever believes in Christ and his salvific office
obtains, through his atonement for their sins, remission and eternal life.
‘And Justification is the Effect of this Faith alone, by which Man is
declar’d free from the Guilt of Sin upon the Account of the Satisfaction
perform’d by the Saviour, which by Faith comes to be so imputed by God
to him that believes, as if he himself had perform’d it, whereby also he is
adopted to be a Son of God, and an Heir of Eternal Life’.52 But here is
the principal problem with Calvinism: it makes no sense that God should
enter into a covenant with people whose life choices he has by his own
will predetermined from eternity.
God is pleas’d to bring Men to salvation in the way of a Covenant, with which Way
or Method such a Necessity cannot consist. For that which I produce, and effect
by my own indispensable Will and Disposal, it is Contradictory, and Superfluous,
and Illusory; that I should pretend to make a Covenant about it . . . this at least
must be left to our Will, that it can resist and refuse the offer’d Grace of God; since
without this all Morality would be utterly extinguish’d, and Men must be drawn to
their Ends after the manner of working of Engines.53
Pufendorf here adumbrated three arguments by means of which he

inveighed against Calvinist predestinarianism and its attendant disavowal
of free will. First, Calvinism’s own covenant theology had to presuppose
free will if it were to be consistent; it could not be a coherent theological
system if it did not. If God promised the justification of all in exchange
for loving faith in Jesus Christ, but did not afford people the means for
such faith, then ‘he would only bitterly mock Mankind, and seek an
unjust Pretence to damn them’.54 Second, the free agent must at the
very least have ‘the Faculty of rejecting and resisting’ the grace of God
that is required in order for a given human act to become meritorious, or
else the moral aspect of the act is only the agent’s own in the attenuated
sense that the act proceeded from the agent.55 Third, the human will
must be free if it is intelligibly going to conduct the agent in action for
which he can be held to moral account. ‘For if any thing may be imputed
to Man, as what he has done or omitted, and is bound to give an Account
49 50 51
Ibid., § 37, p. 87/43. Ibid., § 26, p. 74/37. Ibid., § 40, p. 93/46.
52 53
Ibid., § 51, p. 108/53–54. Ibid., § 67, p. 145/71. See also § 60, p. 127/63.
54 55
Ibid., § 78, p. 188/91. Ibid., § 20, p. 65/32.
for, it must needs be that this must have been within the Reach of his Will
and Choice . . . Otherwise his Actions or Omissions could no more be
imputed to a Man than the Errours of a Clock can be to that which has in
Truth no Liberty in any of its Motions; but that they only proceed from
the Determination of the Artificer that made it’.56 Pufendorf proffered
two further arguments against Calvinist doctrine. No support, he main-
tained, can be found in the Gospel for predestination. ‘No where do we
find, that Christ, or any of this Apostles, began their Preaching in that
way; by telling Men, that God has by an absolute Will elected some to
Eternal Life, and others by a like Decree he has reprobated’. Such a
method of recommending the Word to its hearers would be ‘most
unreasonable’.57 Nor have Calvinists taken proper cognisance of the fact
that God, as sovereign, issues not only decrees but also legislation. Those
actions that legislation commands must be subject to ‘at least a Physical
or Natural Faculty’ of ‘neglecting the things commanded at his Peril, in
as much as without this the Action cannot be understood to be Moral’.58
This does not undermine the efficacy of God’s will, for in the moral
domain efficacy must be understood to correspond to the rightness of the
obligation that is laid upon people.
Pufendorf, with the Lutheran mainstream, embraced the Suarezian
theory of conditional knowledge in order that the ascription of free will to
rational agents did not impinge negatively on God’s prescience. God
comprehends the ‘Successions of Motions and Times’ for all eternity in a
‘present Intuition’:59
it is not necessary that God must Will all things absolutely, but he may Will some
things under a Condition [sub conditione]. Also tho’ the Prescience of God is
never deceiv’d, and that which God does foresee will certainly come to pass; yet it
is not to be imagin’d therefore that any Necessity is laid upon things by his
Prescience, for as much as that includes with the Events the Causes of them,
and he also foreknows those things which are to come to pass under a Certain
Condition.60
By God’s general concurrence, he also offers each individual a concur-

rence for any act in his power at a given time, but he ‘does not predeter-
mine that Physical, or Natural Motion’, leaving it instead ‘to the Liberty
of Man to direct that natural Motion, and apply it to something that is
Evil’ if the agent so chooses.61 God concurs with sinful actions, then, but
not qua sin. He concurs with all human actions, and his having foreseen
56 57 58
59 60 61
78 Part I
and planned for them for all time does not, on this Molinist picture,
confound the freedom from which they proceed.
III. Pufendorf and Molinist Freedom

In his theological writings, then, Pufendorf put on display a convic-
tion that the purpose of possessing a free will was that we might take
responsibility should we reject God’s helping grace, and in order
meaningfully to be held morally accountable for our actions. This is
an argument he had already advanced in his major work, The Law of
Nature and Nations, first published in 1672. There he framed moral
responsibility as involving the imputation of acts to agents, meaning
that the effects of an action can properly be attributed to that agent.
As he put it, the ‘Formality of a Moral Action consists in the Imputa-
tiveness [imputativitate] of it’, ‘by which the Effect of a Voluntary
Action may be imputed to the Agent, or esteem’d as some thing
properly belonging to him’.62 It is fundamental that an action may
only be imputed to a person when ‘the performance or the forbear-
ance’ of it ‘were both in his power’.63 This book, though, devotes
fewer pages to establishing the moral and theological grounds of free
will than it does to enunciating the relation of the mental faculties
involved in moral deliberation. The book opens with a consideration
of the operation of such faculties, an account that is remarkably
homologous to that of Molina and Suárez in particular.64 Pufendorf
began by examining the ‘understanding’ (intellectus), that ‘Power of
the human Soul, which it bears as a Light for its Guidance and
Direction’. Inasmuch ‘as it is concern’d about voluntary Actions’,
the intellect operates in two ways:
One is that by which, as by a kind of Mirror, the Object is shewn to the Will, with
a general and confus’d Notice, whether it be agreeable or disagreeable, good or
evil. The other is that by which the Reasons of Good and Evil, which in several
Objects offer themselves numerously on both Sides, are weigh’d and compar’d,
and Judgment is given, what, when, and in what Manner we are to act, and
62 63
Pufendorf, Law of Nature, I, v, 3, p. 35/57. Ibid., I, v, 5, p. 36/58–59.
64
As the first translator of the work, Jean Barbeyrac, noted, Pufendorf’s discussion
makes full use of ‘the Distinction[s] of the Schools’: see his note in Pufendorf, Law
of Nature, III, iii, 1, p. 23. Hannah Dawson recently has noted Pufendorf’s ‘scholastic
heritage’ when he discusses freedom: Hannah Dawson, ‘Natural religion: Pufendorf
and Locke on the edge of freedom and reason’, in Freedom and the Construction of
Europe, vol. 1, Religious Freedom and Civil Liberty, eds. Quentin Skinner and Martin
van Gelderen (Cambridge, 2013).
Consultation taken about the most proper Means for the Accomplishment of the
propos’d End. And here it must be observ’d, that the Beginning of a voluntary
Act should regularly proceed from the Understanding.65
Pufendorf’s faculty of the understanding thus bears the hallmarks of

Suárez’s faculty of the intellect. It operates in speculative mode by
considering the nature of the objects it apprehends, and in practical
mode by passing judgment on the best course of action. Pufendorf is
clear that the intellect has an important part to play in voluntary action.
Some reason being supplied by the intellect is, as Suárez might have said,
the root or presupposition or sine qua non of freedom.
In the subsequent chapter, Pufendorf supplied a discussion of the
faculty of the will that again resounds in the terminology that Suárez
had also employed. The will is understood to act ‘by the Administration
of two Faculties, by one of which it is said to act spontaneously, and by the
other freely’. Spontaneous acts are of two types: ‘some are interior, com-
monly called Eliciti, others exterior, generally term’d Imperati’. Elicited
acts of the will ‘are such Acts as are immediately produc’d by the Will,
and terminated in the same Power’, while imperated acts depend for their
execution on other faculties moved by the will.66 Suárez had written
exactly the same thing.
How, according to Pufendorf, do the activities of intellect and will
relate to human freedom? Freedom, he is clear, ‘is a Faculty of the Will’
[facultatem voluntas]. In Molinist fashion, once ‘all Requisites of acting
[are] given, [the will] may, out of many propos’d Objects, choose one or
more, and reject the rest; or if one only Object be propos’d, may admit
that, or not admit it; may do, or not do it’. This first ability ‘of choosing
one out of many Objects’ is called ‘Liberty of Specification, or of
Contrariety’, and the second, ‘concern’d in the Admission of Rejection
of one only Object’, is liberty of contradiction.67 And crucially it is the
indifference of the will to its causes which secures this freedom:
65 66
Pufendorf, Law of Nature, I, iii, 1, p. 23/37. Ibid., I, iv, 1, p. 33/46.
67
Ibid., I, iv, 2, pp. 33–34/47. Pufendorf was keen to add in this passage that the imperated
action itself could not be included among the requisites for action, which would involve
a contradiction: ‘Now from these [requisites for action] the last Determination of the
Agent is conceiv’d as a distinct Thing, which being added to the other Requisites,
we immediately proceed to Action; and therefore those Requisites, mention’d in the
Definition of Liberty, do not include that Share which the Man himself bears in the
Action, but are contra-distinguish’d to it’. Suárez made the same point: ‘neither should
one include among those required things anything at all that pertains to the intrinsic
nature of the action or is essentially included in the action’ (Suárez, Efficient Causality,
XIX, ix, 10, p. 322).
80 Part I
Now Liberty is suppos’d to superadd to Spontaneousness, first an Indifference of

Acts as to their Exercise; so that the Will is not oblig’d necessarily to exert one of
its own acts, as to desire or refuse: For tho’, in general, it is impossible but it
should affect Good, and refuse Evil, as such, yet in Reference to any particular
Object propos’d, it may determine on which Side it pleases, tho’, perhaps, it may
seem to have a greater Propension toward the one than toward the other.68
It is in virtue of the will’s formal indifference that it may determine itself.
It is its indifference which means that the will has a power of self-
determination, ‘so that the Will may, upon an internal Impulse and
Motion, exert either of its Acts of wishing or loathing, just in such a
Place, at such a Time’.69 Although a voluntary action is rooted in the
apprehension and judgment of the intellect, the intellect itself does not
impinge on the indifference of the will. Reason cannot determine the
elicited and commanded acts of the will of the rational agent. The
understanding has ‘only a simple Perception and Reception (if I may so
speak) of Ideas with their Relations. The Determination from whence
Action proceeds, is an Act of the will only’.70 The notion that the intellect
operates in a ‘practical’ as well as ‘speculative’ mode ‘is founded upon
the Nature of the Objects it contemplates, and not upon the different
Actions of the Soul’.71
Pufendorf’s faculty psychology, then, parallels Suárez’s. The intellect
provides the impetus for any act of the will. But it is the will itself that is the
formally free faculty.72 Its ‘chief Affection’, and ‘what seems immediately
to flow from its Nature, is an intrinsical Indifference, upon the Account of
which it is not restrain’d to any certain, fix’d, and unalterable Way of
acting; and which cannot be entirely extirpated by the Force of any
external Means’.73 Pufendorf again hammered home the principal reason,
from the point of view of moral theology, why the Lutheran confession
embraced this Catholic defence of the free will. This ‘Indifference we are
the more firmly to assert and maintain, because upon the Removal of it,
all the Morality of human Actions is inevitably overthrown’.74
IV. Pufendorf’s Theory of Sovereignty

Pufendorf is certainly better known today for his writings on natural law
and politics than for his moral theology or his analysis of the architecture
68 69
Pufendorf, Law of Nature, I, iv, 2, p. 34/47. Ibid., I, iv, 2, p. 34/47.
70 71
Ibid., I, iii, 2, p. 23/37. Ibid., I, iii, 2, p. 23/37.
72
For more than I have been able to write here about the role of the cognitive faculties in
regulating human emotions according to Pufendorf, see Heikki Haara, ‘Pufendorf on
passions and sociability’, Journal of the History of Ideas, 77 (2016), pp. 423–444.
73 74
Pufendorf, Law of Nature, I, iv, 3, p. 34/48. Ibid., I, iv, 3, p. 34/48.
of the human mind which sustains that theological account. Yet his
conception of the relation of the cognitive faculties in securing human
freedom and directing human action is crucial, in ways that have not
been appreciated, to his theories of natural law and of politics. Let us
begin with the importance of Pufendorf’s moral psychology for his
understanding of natural law. The purpose of possessing a free will for
Pufendorf, as we have seen, was both that we might take responsibility
for accepting the Word of the Gospel through faith in the realm of
revealed religion, and also so that we own up to the moral or immoral
character of our actions in the realm of what he called ‘Primitive’
or ‘natural religion’.75 It is over this latter domain that God has estab-
lished natural law. Rational nature, according to Pufendorf, is the basis
for natural moral conduct. God has endowed human beings with intel-
lects that can employ reason in order to recognise which actions accord
with reason. Those dictates of reason that pertain to moral issues are
recognised by reason to be dictates of the law of nature, and thus of
God’s will. They are dictates of natural law, Pufendorf thought, because
unless they were considered as divine commands there would be no way
of justifying them as moral principles at all. Ultimately, he argued,
‘all human Actions falling under the guidance of the Law of Nature,
may be finally resolv’d into that natural Strength and Force which they
bear in advancing the Profit [commodum] or the Harm [noxam] of
Men’.76 Without a system of moral rules, that is, human beings may still
have reasons for doing things to themselves and each other, but these
reasons will all lead back to their own personal pleasure or advantage.
What makes morals different is that they are unconditional stipulations,
justified in themselves. We must therefore accept, if there is to be
something called morality, that moral precepts are laid down by God,
to whose concept it belongs that we ‘acknowledge him a Being not only
vastly [Man’s] Superior in Nature and Dignity, but, likewise, his proper
Lord and Governor in the highest Degree’,77 and that these precepts are
laws to us, for the command of a superior is law.78
75
Pufendorf, Divine Feudal Law, § 29, p. 78/38.
76 77
Pufendorf, Law of Nature, I, ii, 6, p. 17/31. Ibid., II, iii, 4, p. 118/133.
78
Ibid., I, vi, 9, p. 60/ 75. This is a very compressed account of Pufendorf’s views on
obligation and natural law. Pufendorf’s account is itself contentious of course, but so is
this reading of it, which stresses a theological dimension often denied by those writers,
such as Hochstrasser and Hunter, who want to make Pufendorf a central character in the
story of the secularisation of natural law. My understanding of Pufendorf on natural
law is much indebted to a number of works that have resisted this telling, especially:
J. B. Schneewind, ‘Pufendorf’s place in the history of ethics’, Synthese, 72 (1987),
pp. 123–155; Saastamoinen, Morality of the Fallen Man, pp. 96–110; Petter Korkman,
82 Part I
Knowledge of God’s law, then, is natural inasmuch as its precepts can

be established by natural reason. The ‘Understanding of Man is endued
with such a Power, as to be able, from a Contemplation of human Condi-
tion, to discover a necessity of living agreeably to this Law; as, likewise, to
find out some Principle by which Precepts of it may be clearly and solidly
demonstrated’.79 This is the point at which Pufendorf’s theory of the
faculties becomes significant in his political theory. For God enjoined
men, Pufendorf inferred, to set up and maintain states presided over by
sovereigns. After humankind’s numbers swelled, he said, ‘sound Reason’
(sanam rationem) showed that ‘their Honour, Peace, and Safety could not
subsist, without the Establishment of civil States’. Being an insight of
reason, ‘both the States themselves, and the chief Government erected in
them, are supposed to proceed from God, as the Author of the Law of
Nature’. Things are from God, after all, not only when he has directly
forged them, but ‘those, likewise, which Men themselves, by the Guidance
of good Reason, according as the different Circumstances of Times and
Places required, have taken up, in order to the fulfilling of some Obligation
laid upon them by God’s Command’.80 The obligation here is that
commanded by the fundamental law of nature, namely, that ‘Every Man
ought, as far as in him lies, to promote and preserve a peaceful Sociableness with
others’.81 Human will, deed, agreement and imposition can directly give
rise to entities that indirectly bear the stamp of divine sanction.
Sovereignty, according to Pufendorf, has as its end the common
security of the state. The founding of a state proceeds in three steps.
First, a number of male householders ‘covenant each with each in
particular, to join into one lasting Society, and to concert the Measures
of their Welfare and Safety, by this publick Vote’. Second, a vote requir-
ing a majority of the party to the pact of association (pactum associationis)
just entered into then decides the form of government which they will set
up by ‘Decree’ (decretum).82 Finally, the prospective subjects submit their
‘Voluntarism and moral obligation: Barbeyrac’s defence of Pufendorf revisited’, in Early

Modern Natural Law Theories: Contexts and Strategies in the Early Enlightenment, eds. T. J.
Hochstrasser and P. Schröder (Dordrecht, 2003); and T. H. Irwin, ‘Aquinas, natural
law, and Aristotelian eudaimonism’, in The Blackwell Guide to Aristotle’s ‘Nicomachean
Ethics’, ed. Richard Kraut (Oxford, 2006).
79
Pufendorf, Law of Nature, II, iii, 13, pp. 130–131/144.
80
Ibid., VII, iii, 2, p. 651/661.
81
Ibid., II, iii, 15, p. 134/148. For more on Pufendorf’s derivation of sociability as the
fundamental law of nature, see especially Craig L. Carr and Michael J. Seidler,
‘Pufendorf, sociality and the modern state’, History of Political Thought, 17 (1996),
pp. 354–378; and Hochstrasser, Natural Law Theories, pp. 72–110.
82
Pufendorf, Law of Nature, VII, ii, 7, pp. 635–636/644.
wills to that of the individual or group thereof which is to exercise

sovereignty over the society established by the first pact. In a phrase
redolent, as we saw earlier, of Hobbes, Pufendorf claimed that this
submission of wills makes for ‘that Submission and Union of Wills by
which we conceive a State to be but one Person’.83
Unlike Hobbes, however, Pufendorf reserved to the people constituted
by the pact of association a limited right of resistance against their
sovereign.84 While ‘every Man in his Wits will confess, that it is a
Sin to oppose [or resist: resistere] a lawful Ruler’, Pufendorf went on
immediately to supply a crucial caveat: the prohibition on resistance
applies only ‘whilst [the sovereign is] acting within the Limits of his
Authority [quamdiu intra potestatis suae limites versantur]’.85 These limits
are determined by the end of the state, namely, the ‘common Peace and
Security’ of its subjects.86 While it is by no means incumbent on a people
explicitly to limit their sovereign’s authority, sovereignty may nonetheless
be ‘brought into much narrower Bounds, and under much stricter Ties,
if, at the first conferring of Sovereignty, it be expressly covenanted
between the People and the Prince, that the latter shall govern according
to certain fundamental Laws’ (leges fundamentales). Any affairs over which
the sovereign has not been granted ‘absolute Disposal’ he must refer to
‘a Council of the Commons, or of the Nobles, and determine nothing
without their Consent’. Should he do otherwise, ‘the Subjects shall not
be obliged by any of those illegal Commands’.87 Accordingly,
A people, who constitute a King over them in this Manner, are supposed to
have promised him Obedience, not absolutely and in all Points [non absolute &
in omnibus], but so far as his Government [imperium] is agreeable to the
original Contract [ad capitulationem], and the fundamental Laws: From which
83
Ibid., VII, ii, 8, p. 636/644.
84
Michael J. Seidler, ‘“Turkish judgment” and the English Revolution: Pufendorf on the
right of resistance’, in Samuel Pufendorf und die Europäische Frühaufklärung: Werk und
Einfluss eines Deutschen Bürgers der Gelehrtenrepublik nach 300 Jahren, eds. Fiammetta
Palladini and Gerald Hartung (Berlin, 1996); and Michael Seidler, ‘Monstrous
Pufendorf: Sovereignty and system in the Dissertations’, in Monarchism and Absolutism
in Early Modern Europe, eds. Cesare Cuttica and Glenn Burgess (London, 2012).
Seidler’s work on Pufendorf has been a major influence on my own. The latter text
referred to here, however, explicitly follows Skinner by equating Pufendorf’s person of
the state with Hobbes’s (see p. 161 and p. 252, n. 12), with which I disagree. More
recently, Robert von Friedeburg has argued that Pufendorf’s resistance theory was
formulated precisely to confront Hobbes’s theory of the state. See Robert von
Friedeburg, Luther’s Legacy: The Thirty Years War and the Modern Notion of ‘State’ in
the Empire, 1530s to 1790s (Cambridge, 2016), pp. 331–342.
85 86
Pufendorf, Law of Nature, VII, viii, 1, p. 716/727. Ibid., VII, ii, 13, p. 641/650.
87
Ibid., VII, vi, 10, p. 697/706.
84 Part I
whatever Acts of his recede are thereby void, and lose all Force of engaging
the Subjects to a Compliance.88
Pufendorf made in this connection an important distinction between
‘absolute’ and ‘supreme’ sovereignty. Absolute sovereignty ‘imports a
Power of exercising any kind of Right, according to one’s own Judgment
and Inclination’; supreme sovereignty ‘denies a Superior or an Equal in
the same Order’.89 Absolute sovereignty was a superlative concept,
supreme sovereignty a comparative one.90 Absolute sovereignty may be
the norm, but Pufendorf was clear that supreme sovereignty was just as
theoretically coherent and practically possible. There was no paradox
involved in the notion of a limited but supreme sovereignty. Any council
with concomitant intendancy of a ruler and the fundamental laws did not
represent an autonomous will in the state but purely ‘a necessary condi-
tion’ (conditione sine qua non) for a sovereign act of will. ‘Neither are there
in such a State two Governing Wills; since whatever the common Body
acts it is by the Will of the Prince: The Limitation of the original Grant
only producing this Effect, That, unless, under such a Condition, the
Prince shall not incline his Will to some particular Designs, or that such
Acts of his Will shall have no Force or Virtue’.91
We have reached the point at which Pufendorf’s use of faculty psych-
ology becomes directly significant from the perspective of his political
theory. In order to grasp this, we must first revisit in more detail one of
Pufendorf’s ideas that featured in the Introduction to this study, namely,
his discussion of moral entities, with which he opens The Law of Nature.
Moral entities, according to Pufendorf, are those entities created by
human agreement in order to steer human freedom so that human social
life be orderly and a credit to the Creator.92
88 89
Ibid., VII, vi, 10, p. 697/706. Ibid.
90
I owe the terms of this distinction to Patrick Riley’s discussion of Leibniz’s theory of
sovereignty, in Patrick Riley, Leibniz’ Universal Jurisprudence: Justice as the Charity of the
Wise (Cambridge, MA, 1996), p. 227.
91
Pufendorf, Law of Nature , VII, vi, 10, p. 697/706. Basil Kennet’s translation of the Latin
is less reliable for this crucial passage than it is for many others. Michael J. Seidler’s more
recent translation is far more accurate: ‘For surely all things that the state wills, it wills
through the will of the king, even if it is with the limitation that unless a certain condition
exists, the king cannot will certain things, or wills them in vain’; see Samuel von
Pufendorf, The Political Writings of Samuel Pufendorf, ed. Craig L. Carr, trans. Michael
J. Seidler (Oxford, 1994), p. 235.
92
Three good accounts of Pufendorf on moral entities are: Stephen Darwall, The Second-
Person Standpoint: Morality, Respect, and Accountability (Cambridge, MA, 2006),
pp. 107–108; Thor Inge Rørvik, ‘Samuel Pufendorf – Natural law, moral entities and
the civil foundation of morality’, in Philosophy of Justice, ed. Guttorm Fløistad
(Dordrecht, 2015), esp. pp. 71–73; and, above all, Udo Thiel, The Early Modern
Our Business is, to declare, how, chiefly for the direction of the Will, a certain
Kind of Attributes have been impos’d on Things, and their natural Motions;
whence there springs up a peculiar Agreement and Conveniency in the Actions of
Mankind, a grateful Orderliness and Comeliness for the Ornament of human
Life. And these Attributes are called moral Entities [entia moralia], because the
Manners and the Actions of Men are judg’d and temper’d with relation to them;
and do hence assume a Face and Habit different from the horrid Stupidity of the
dumb Creation.93
Moral entities are the subject of the moral sciences. ‘Science’ here is no
misnomer. The doctrine of moral entities, Pufendorf argued, makes
possible the academic treatment of human social life by analogy to the
treatment of the natural world by the natural sciences. We simply cannot
talk systematically about the stuff even of the world of human intersub-
jective imposition without recourse to such analogies. It ‘seems a more
exact Method to make the Classes of natural Entities our Patterns in
digesting the moral’, because ‘our Understandings are so immers’d in
corporeal Images, as to be hardly capable of apprehending such moral
Beings any otherwise than by Analogy to those of Nature’.94
Pufendorf proposed accordingly a fourfold division of moral entities in
general. First, just as natural substances ‘suppose some Kind of Space,
in which they fix their Existence, and exercise their Motions’, so one
category of moral entity is the ‘State’ (Statu) or condition in which moral
substances find themselves, what turns out to be a shorthand for place
and time.95 Second, just as quality is a characteristic of the physical
world, another category of moral entity corresponds to it, evidenced in
human institutions whose force is evaluative, such as titles (‘apply’d for
the Distinction of Persons in civil Life’), powers (‘by which a Man is
enabled to do a Thing lawfully and with moral Effect’), rights (‘by the
Force of which we may claim somewhat as due to us’) and obligations
(‘by which a Man is bound under a moral Necessity to perform, admit, or
undergo any Thing’).96 Third, just as there are quantities of things in the
natural world, so human beings have set up social institutions such as
prices and measures of dessert.97
The most fundamental kind of moral entity for Pufendorf, however,
was the substance of the moral world. He called such substances moral
persons. These must be conceived as analogates of physical substances,
‘because other moral Things seem to be immediately founded in them,
Subject: Self-Consciousness and Personal Identity from Descartes to Hume (Oxford, 2011),
pp. 77–81.
93 94
Pufendorf, Law of Nature, I, i, 2, pp. 2–3/14. Ibid., I, i, 5, p. 4/15.
95 96
Ibid., I, i, 6, p. 4/15. Ibid., I, i, 17–21, pp. 10–12/22–25; emphasis relaxed.
97
Ibid., I, i, 22, p. 12/25.
86 Part I
just as Quantities and Qualities inhere in the real Substance of Bodies’.98

Moral persons are the offices or roles that physical persons assume,
either individually or collectively.99 Some are simple: to assume the
role of a husband, for example, is to assume an office compounded of
certain duties, rights and capacities, all of which can accrue to a single
individual. Some are compound or composite: a church, for example, is a
social institution which has its own offices but is also composed of
various other personae such as bishop, minister and congregant.
One such compound moral person, wrote Pufendorf, is the state. It is
compounded of certain moral personae such as the sovereign and the
citizen, each with their own integral roles, each superimposed on some
natural human person or persons. But the state itself is also a person and
therefore, in Pufendorf’s eyes, must be understood analogously to the
natural human being. Person, for Pufendorf as for Hobbes before him, is
a role concept. But for Pufendorf, unlike Hobbes, it is also a metaphys-
ical concept. Pufendorf’s moral persons are subtended by natural human
beings and cannot exist absent that basis.
In the Introduction to this book, we saw that Pufendorf objected to
how Hobbes constructed his own theory of personhood by means of such
a strong appeal to the theatrical etymology of ‘person’. Recall that
Hobbes pointed to a dual meaning of ‘person’ in ancient Greek and
Roman theatre: it named both the character and the performance of that
character. Pufendorf considered that in the case of the former this was to
attribute personhood to a nonperson, for personhood could not possibly
be attributed to a character in a play. In the case of the latter, the
performance itself could not be said to constitute personhood, for
the only value of a dramatic or comedic performance is the aesthetic
quality of the performance itself, whereas the actions of persons properly
conceived must leave behind them ‘moral effects’ by which they can
be judged. When Hobbes drew upon this theatrical origin of the term
person in order to claim that the state was a fictional person that appeared
to view when personated by the artificial person of the sovereign, Pufen-
dorf could not agree. In order to understand Pufendorf’s rival conception
of personhood, which underlies his category of moral entities, we need
to appreciate that he stood in a tradition of thinking about personhood
that in fact reaches back as far as the Greek and Roman drama evoked
by Hobbes, but which was effaced in his interpretation, and has been
98
Ibid., I, i, 6, p. 4/15.
99
On the meaning of ‘office’ in early-modern theory, see Conal Condren, Argument and
Authority in Early Modern England: The Presuppositions of Oaths and Offices (Cambridge,
2006), especially pp. 172–185.
missed by the likes of Skinner and Hunter in their Hobbesian interpret-

ations of Pufendorf on the state.
The category of person in ancient theatre had moral resonances not
captured by its double Hobbesian equation with role and performance.
For the Stoics, the conception of prosōpon or persona as a part in a play
was adduced to support their ethical teachings. The Stoics believed that
there was a governing principle of the cosmos, and that this plan allotted
a special role to human beings: other animals are guided in what they do
by impulse, but human beings have been created in such a way that what
they do they do for reasons; and moreover they are able to act for the
right reasons. Human beings thus have the special role of behaving
rationally in the world – and, more than that, each individual human
being has his or her own role to play and has been so endowed by nature
for this. Human beings must thus strive to live in harmony with the
divine order by acting rationally and in accordance with their own
capacities. The Stoics regarded everything as being in harmony when
the will of God and the genius of the individual were congruent.100 Thus
they argued against ancient ‘popular morality’, which ranked people
according to their roles in society. For them, acting as one ought was
relative to the sort of human being that one was.101 Therefore, they
viewed Greek drama, in which the role was subordinate to the play as a
whole but nonetheless contributed to make the whole what it was, as an
‘artistic way’ of stating their doctrine.102 Epictetus put it thus: ‘Remem-
ber that you are an actor in a play, which is as the playwright wants it to
be: short if he wants it short, long if he wants it long. If he wants you
to play the beggar, play even this part skilfully, or a cripple, or a public
official, or a private citizen. What is yours is to play the assigned part
[prosōpon] well. But to choose it belongs to someone else’.103 Crucially,
the individual was addressed here as someone standing behind the role, as
he was again, but with a warning: ‘If you undertake some role beyond
your capacity, you both disgrace yourself by taking it and also thereby
100
For more on the Stoic conception of a divine plan for the universe, see Keimpe Algra,
‘Stoic theology’, in The Cambridge Companion to the Stoics, ed. Brad Inwood (Cambridge,
2003); for the tensions between the notion of a divine order and the education of human
beings to play their part, see Dorothea Frede, ‘Stoic determinism’, in the same volume.
101
On this ‘popular morality’, and how the Stoics helped to force a change in the meaning
of ‘person’ as they railed against it, see Michael Frede, ‘A notion of a person in
Epictetus’, in The Philosophy of Epictetus, eds. Theodore Scaltsas and Andrew
S. Mason (Oxford, 2007).
102
Adolf Trendelenburg, ‘A contribution to the history of the word person’, The Monist, 20
(1910), pp. 336–363, at p. 345.
103
Epictetus, The Handbook (The Encheiridion), trans. Nicholas P. White (Indianapolis,
IN, 1983), chapter 17, p. 16.
88 Part I
neglect the role that you were unable to take’.104 Stoic ethics thus facili-
tated a third meaning of prosōpon or persona of decisive importance.
Persona began to designate not merely the role or its performance but
also the individual human being who stood behind that role and its
performance: the person of the actor.105 In rising to the challenge of
depicting the persona of the character onstage, the actor had at his disposal
as a resource from which to create the role he was now called on to play
only his other roles in life, and what he had to attempt to do was to find a
way to take up the resources he had found offstage and give them a new
form onstage. If he was to be a convincing presence onstage, however, he
had to project a sense of self. The person of the actor was thus more than
the roles that he played: his propria persona was not a single role that stood
behind all the others, but an identity, a ‘sense which being has of itself’.106
When the Stoics instructed the actor to stand back and take stock of his
own suitability for playing a particular character, they helped to effect, so
to speak, a role reversal of the concept of person. As Amélie Oksenberg
Rorty has argued, the term character referred originally – as it still does in
the appropriate context – to the written marks that are the elementary
signs of language. This carried through to the character who is the persona
depicted on the stage, whose marks are the traits and temperaments
which can be analysed in a dispositional manner, and in principle com-
bined and recombined to make other characters just as reliable and
predictable.
Dispositional traits form an interlocking pattern, at best mutually supportive
but sometimes tensed and conflicted. There is no presumption of a core that
owns these dispositions . . . Disharmony among characteristics bodes trouble; it
is likely to lead to failure in action, but not to a crisis of identity. Because
characters are defined by their characteristics rather than by the ultimate
principles that guide their choices, form their souls, they need not in normal
circumstances force or even face the question of which of their dispositions is
dominant.107
Characters choose from their natures, and thus characters in ancient
dramas had no need of a will. But the change that was forced in the
concept of the person by the Stoics – from the character or the
104
Ibid., chapter 37, p. 24.
105
Roberto Esposito, Third Person: Politics of Life and Philosophy of the Impersonal
106
Aldo Tassi, ‘Person as the mask of being’, Philosophy Today, 37 (1993), pp. 201–210, at
p. 207. See also Hannah Arendt, The Promise of Politics (New York, 2005), pp. 166–167.
107
Amélie Oksenberg Rorty, ‘A literary postscript: Characters, persons, selves,
individuals’, in The Identities of Persons, ed. Amélie Oksenberg Rorty (Berkeley, CA,
1976), p. 305.
performance of it to the performer himself – is nothing short of a thresh-

old in the history of thought. The Stoics forced the invention of
the person who stands behind the character, as an incommunicably
unique identity.
Christianity took over this conception of the person and made it more
vivid. Persona or prosōpon in this new sense ‘readily suggested a distinct,
individual identity, one disclosed by speech and action as emerging from
the free, rational mind’.108 Persons in Christian theology are unified
centres of choice and action. Persons choose freely their own actions,
and are responsible for them. They will be judged for these choices and
actions, and ‘once there is the idea of judgment, especially if it is eternal
judgment with heaven and hell and the whole person languishing there
even if it is only a crucial part that has ailed or failed, then all that is
various and loosely structured in the practice of assigning responsibility
to diffuse character traits must be brought together and centred in a
unified system’.109 As for the Stoics, persons must also be able to stand
back and reflect on the characters that they are; one contemporary
discussion of persons defines them as ‘being capable of wanting to be
different, in their preferences and purposes, from what they are’, so that
when some character trait exerts some influence on the person’s choice
and action, ‘the desire by which he is moved is either the will he wants or
a will he wants to be without’.110
The Church fathers further clarified that the person is not a combin-
ation of substances, of body and soul, but is one thing that must be
looked at from two different aspects. After all, Jesus Christ was one
person, indeed the fulfilment and archetype of human personhood,
who suffered physically on the cross, for the sake of humankind’s reunion
with the spiritual God.111 To quote one of them, Justin Martyr: ‘Is the
soul by itself the person? No, it is simply the person’s soul. Do we call
the body the person? No, we call it the person’s body. So the person is
neither of these things on its own, but it is the single whole formed
together from them both’.112 Boethius, in the sixth century, gave this
108
Joseph W. Koterski, ‘Boethius and the theological origins of the concept of person’,
American Catholic Philosophical Quarterly, 78 (2004), pp. 203–224, at p. 206.
109
Rorty, ‘Literary postscript’, p. 310.
110
Harry G. Frankfurt, ‘Freedom of the will and the concept of a person’, Journal of
Philosophy, 68 (1971), pp. 5–20, at p. 7 and p. 14.
111
Adrian Thatcher, Truly a Person, Truly God: A Post-Mythical View of Jesus (London,
1990).
112
Quoted in Kallistos Ware, ‘The unity of the human person according to the Greek
Fathers’, in Persons and Personality: A Contemporary Inquiry, eds. Arthur Peacocke and
Grant Gillet (Oxford, 1987), p. 205.
90 Part I
doctrine its canonical form, when he defined ‘person’ as naturae ration-

abilis individua substantia, the individual substance of such a nature as to
be rational.113 It survived as the dominant conception of the person even
the later debates between Christians – of the kind examined in Chapter 1 –
about the existence or extent of the freedom of human persons:
Melanchthon, for example, had it in his Commonplaces that ‘a person is
an incommunicable rational individual substance not sustained in
another nature’.114 P. F. Strawson’s much-cited ‘person theory’ is essen-
tially a restatement of this position, according to which the concept of a
person is ‘the concept of a type of entity such that both predicates
ascribing states of consciousness and predicates ascribing corporeal char-
acteristics, a physical situation, etc., are equally applicable to a single
individual of that single type’.115
The above is a sketch of a particularly important conception of the
concept of person. It omits the extraordinarily difficult background of
discussions of the Trinity against which the early Christian tradition in
part formed its understanding of personhood.116 It also fails to register
the trajectory of the term persona in Roman law, which, while it may have
come out of Christianity’s emphasis on the liability and ‘actionableness’
of persons for their choices and actions,117 attributed ‘legal’ personhood
to corporations while denying it to human slaves.118 Hobbes certainly
engaged with this legal tradition, and I mentioned it in the Introduction
and say a little more about it in Chapter 5 than I can say here now. As
simplistic as this sketch is, it is vital that we have it in mind when
considering Pufendorf’s theory of the moral person of the state, because
it was the tradition that formed his own thinking about persons. As we
113
Boethius, ‘A treatise against Eutyches and Nestorius’, in Boethius, Theological Tractates
& The Consolation of Philosophy, trans. H. F. Stewart, E. K. Rand and S. J. Tester
(Cambridge, MA, 1973), pp. 84–85.
114
Quoted in Trendelenburg, ‘Person’, p. 354.
115
P. F. Strawson, Individuals: An Essay in Descriptive Metaphysics (London, 1951),
pp. 101–102. For critical discussion, see Roland Puccetti, Persons: A Study of Possible
Moral Agents in the Universe (London, 1968), pp. 1–28; Hidé Ishiguro, ‘The
primitiveness of the concept of a person’, in Philosophical Subjects, ed. Zak van
Straaten (Oxford, 1980); Jenny Teichman, ‘The definition of person’, Philosophy, 60
(1985), pp. 175–185.
116
The clearest discussion I have found is Koterski, ‘Boethius’. An especially perspicuous
account of later debates about the concept of person in the context of Trinitarian
theology is Russell L. Friedman, Medieval Trinitarian Thought from Aquinas to Ockham
(Cambridge, 2013).
117
See, for instance, Will Deming, ‘Paul, Gaius, and the ‘law of persons’: The
conceptualization of Roman law in the early classical period’, Classical Quarterly, 51
(2001), pp. 218–230.
118
For philosophical reflection, see Robert Esposito, ‘Persons and things’, Paragraph, 39
(2016), pp. 26–35.
have seen, what makes a human being a human being, for Pufendorf, is
the peculiar co-ordination of the cognitive faculties in conferring a power
of freedom on soul and body. This facultative constitution is the very
foundation of personhood for Pufendorf: it carves out of nature the
individual substances that are free and rational, in Boethian fashion,
and supplies the material and spiritual ground for the derivative personae
that are officia. We might call this facultative constitution of the
free person his or her moral substratum, for it is the natural shape of
a free and rational person. And this is precisely what is signalled as soon
as Pufendorf begins to write about the state as being analogous to the
human person. Before it can be a mere compound of humanly contrived
roles and capacities, it must bear a certain proportion to the natural
human person, mutatis mutandis.119 Pufendorf’s moral person of the
state is simply not the same as Hobbes’s fictional person of the state,
because his understanding of what it means to be a person is, in crucial
respects, utterly different.120
The composite moral person of the state, Pufendorf thus declared,
‘is conceived to exist like one Person’ because it is ‘endued with Under-
standing and Will’; it can move itself to action because it possesses these
faculties.121 And we can now see which part of the state exercises each
of these faculties. The decisive attribute of sovereignty is will: it is in
virtue of the submission of the wills of all the citizens to the will of
one simple moral person that the state emerges, and the exercise of one
efficacious will in the state makes its bearer sovereign. However, this
will can only operate in certain circumstances; when certain conditions
are absent, then it cannot will. Non existente certa conditione, rex quaedam
non posit velle.
According to the action theory that Suárez elaborated and to which
Pufendorf subscribed, the will can only elicit an act if some reason is
presented to it by the intellect acting speculatively, and it ceases to will
if a sufficient reason is absent. Suárez himself, as we have seen, had
characterised the intellect precisely as the conditione sine qua non of acts
119
In List and Pettit’s terminology, Pufendorf’s conception of personhood is both
‘intrinsicist’, where persons are distinguished by the stuff of which they are made, and
‘performative’, where what makes an agent a person is the ability to play a certain role.
Christian List and Philip Pettit, Group Agency: The Possibility, Design, and Status of
Corporate Agents (Oxford, 2011), p. 171.
120
Knud Haakonssen, ‘Samuel Pufendorf (1632–1694)’, in The Oxford Handbook of the
History of International Law, eds. Bardo Fassbender and Anne Peters (Oxford, 2012),
p. 1104, hits the nail on the head when he writes that ‘the composite person of the
State . . . is analogous to the natural person’.
121
Pufendorf, Law of Nature, VII, ii, 13, p. 641/650.
92 Part I
of will.122 (As we saw in Chapter 1, it is on this point that Suárez’s

theory of free will departs from that of Molina.) Pufendorf’s state has
both an intellect and a will. When individuals contract to establish a
state, they on all occasions alienate their wills to the sovereign, for it is a
singular will in the state that makes a state sovereign. ‘So that the most
proper Definition of a civil State seems to be this, “It is a Compound
Moral Person, whose Will, united and tied together by those Coven-
ants, is deemed the Will of all”’.123 This will of the moral person of the
state, however, requires prior operations of the intellect of the moral
person of the state in order to function. Now, where a people confers
absolute sovereignty on some body, singular or collective, ‘there the
State is supposed to choose and desire whatever that one Man (who is
presumed to be a Master of Reason) shall judge convenient; in every
Business or Affair, which regards the End of civil Government’.124 But
where a people sets up a supreme sovereign (a superior lacking an equal
in the state), the intellect of the moral person of the state is not lodged in
the sovereign. Those members of the community charged with over-
sight of the sovereign do not constitute another will in the state but the
intellect or understanding of the composite moral person. The sover-
eign, therefore, simply cannot will something on behalf of the state if
that particular act of will is not deemed reasonable by the council; or if
he wills it he does so as a private citizen, ‘in the Prosecution of his
personal Affairs’, and thus futilely from the perspective of the personal-
ity of the state.125 He cannot decide to act if the council considers that
there is no reason to act. Pufendorf’s supreme sovereign is therefore
circumscribed by the mode of efficient causality that Suárez posited in
the nineteenth Metaphysical Disputation. There is plenty of latitude for
the exercise of the will in that account, but it cannot all the same get
around the prerequisites of action, which always include some reason
apprehended by the intellect.
The precise mechanisms whereby the intellect of the moral person
of the state controls the sovereign will remain somewhat opaque in
The Law of Nature. Pufendorf argued that the superintending council,
as the intellect of the state, could not, when operating in speculative
mode, pass any decisions by qualified majority, for ‘in determining
speculative Truths, Opinions are not passed by number, but by weight
[non numerantur, sed ponderantur]’. It is possible to envisage an intern-
ally divided intellect operating in speculative mode. But when the
122
Suárez, Efficient Causality, XIX, v, 21, p. 341.
123 124
Pufendorf, Law of Nature, VII, ii, 13, p. 641/650. Ibid., VII, ii, 14, p. 642/651.
125
Ibid.
intellect of the composite moral person of the state operates in practical

mode, qualified majority voting was acceptable, because on practical
issues ‘the Members . . . have all an equal Right to influence the
Proceedings’.126 Given that the will of the state is indifferent, and can
determine itself to some end as long as some reason is provided, it seems
that Pufendorf, in the manner of a Jesuit probabilist consoling a peni-
tent, was prepared to allow the supreme sovereign to act on the basis of
a minority decision, so that the only sovereign decision for which there
could be no conditione sine qua non would be one taken against a
unanimous vote. Pufendorf’s constitutionalism, then, certainly reserves
to the sovereign quite considerable leeway for manoeuvre. Still, where a
sovereign does go against such unanimity, the moral person of the state
has in effect gone mad. Pufendorf was not clear whether such a
period of insanity had to be prolonged or simply fleeting, but at some
point we enter an interregnum. Rule falls to ‘provisional Magistrates’
(magistratus temporatii), authorised during the decree stage of the ori-
ginal establishment of the state, ‘to perform, during the present
Exigency, the Acts of the supreme Power [summi imperii], at least, such
as are necessary to hold the Community together’.127 Their power
ceases as soon as a new sovereign has been set up in the wake of a
new contract of submission.
It must also be borne in mind that both sovereign and council, as
parts of the organs of government of the state, cannot be understood in
terms of the representation of some antecedent will or intellect in the
state. Just as the compound moral person of the state cannot exist
without the moral personae that are its subjects, so it cannot be without
the institution of sovereignty and the necessary conditions that enable
it. The will of the sovereign to command his subjects in respect of
matters of security and peace, and the conditions that are put in place
on his commanding, are internal to the moral space of the state itself.
We are some considerable distance here from popular sovereignty or
popular control of it. The facultative constitution of sovereign power,
by taking its form from the faculties of natural free and rational person-
hood, is shaped by the concept of the natural ‘sovereign’ person, but it
must not be forgotten that the state is an institutional fact contrived by
collective intentionality.
126
Ibid., VII, ii, 15, p. 644/653. For Pufendorf’s views on majority rules and its limits, see
Pasquale Pasquino, ‘Samuel Pufendorf: Majority rule (logic, justification and limits)
and forms of government’, Social Science Information, 49 (2009), pp. 99–109.
127
Pufendorf, Law of Nature, VII, vii, 8, p. 709/719.
94 Part I
V. Pufendorf on the Holy Roman Empire

I will call Pufendorf’s theory of sovereignty his theory of facultative
sovereignty.128 If states are persons, then it follows that there will be some
homology between human persons and state persons, as I have attempted
to show in the preceding discussion, and because his theory of personhood
was informed by his theological convictions we may account in part for
Pufendorf’s theory of sovereignty by paying close attention to his theological
purposes in defending free will. But it is unlikely that a political theorist’s
understanding of such a crucial concept as sovereignty would be deter-
mined wholly by prior commitments to a particular vision of moral psych-
ology. Pufendorf’s development of the theory of facultative sovereignty set
out in his political magnum opus stemmed to some degree, I want to
suggest, from his own dissatisfaction with his earlier and famous interven-
tion into the debate on the constitutional form of the Holy Roman Empire.
This debate arose in response to at least two intellectual prompts:
Bodin’s influential argument in Les six livres de la république (1576) that
sovereignty was indivisible; and the rising analytic prominence of polit-
ical Aristotelianism, and the corresponding proposition that rule in any
political society must be monarchical, aristocratic or democratic.129 The
German lands were by no means the only ones where both these propos-
itions appeared difficult to square with political reality, but the unique
political architecture of the German Empire stood in especially stark
relief vis-à-vis these theoretical postulates. Moreover, Germany provided
a socially and institutionally propitious context for such a debate to take
place, for confessional tensions were especially pronounced, a pro-
gramme of ‘streamlining’ in local governments was under way from the
1570s, and the many small jurisdictions of the estates supplied a kind of
‘economy of scale’ to literature advising rulers on the general nature as
well as the minutiae of imperial public law.130 The debate was given a
128
Facultative is certainly an ugly term, and might even be misleading because one of its
connotations is ‘optional’, and is used in political science, for instance, to designate a
referendum of the kind common in Switzerland, namely, one that is called following a
successful petition. However, the word signals very clearly the basis in faculty psychology
of Pufendorf’s theory of sovereignty, and ‘facultative’ does also mean ‘relating to the
faculties’. For another such usage in intellectual history, see James G. Buickerood,
‘The natural history of the understanding: Locke and the rise of facultative logic in the
eighteenth century’, History and Philosophy of Logic, 6 (1985), pp. 157–190.
129
Horst Dreitzel, ‘Reason of state and the crisis of political Aristotelianism: An essay on
the development of 17th century political philosophy’, History of European Ideas, 28
(2002), pp. 163–187.
130
Robert von Friedeburg, ‘Reformed Monarchomachism and the genre of the “politica”
in the Empire: The Politica of Johannes Althusius and the meaning of hierarchy in its
new lease of life by the Peace of Westphalia (1648), which brought an

end to the Thirty Years’ War. The peace treaties reformed the Imperial
Constitution in order to create new processes for adjudicating religious
disputes and reduced the authority of the German princes over religious
matters, thereby seeming to strengthen the empire as a political entity.
The ‘experimental’ character of the provisions enumerated by the treaties
encouraged further debate about the nature of the Empire reorganised by
the Peace.131 In The Present State of Germany (1667), Pufendorf, writing
under the flamboyant pseudonym Severinus de Monzambano (a name
which has become a shorthand for the text itself), examined each position
in the debate, and found each severely deficient.
There were three basic positions in the debate known as the
Reichspublizisten.132 Nobody claimed that the empire was a democracy,
so there was no case to rebut here: Pufendorf simply argued that to
describe the empire as a democracy would ‘deny the Name of Citizens
to Free Men and Patriarchs’ who were not represented in the Imperial
Diet, an absurdity given that they all held by constitutional tradition
various privileges or freedoms.133 The first position proper was that
the empire was monarchical, the emperor being in full possession of
Bodinian sovereignty. Bartholomaeus Keckermann, Hermann Kirchner
and Daniel Otto were the most prominent advocates of this perspective
before the treaties of Westphalia in 1648, and Dietrich Reinkingk the
most prominent after it. Reinkingk advanced a fairly common interpret-
ation of the Book of Daniel, chapter 7, which recounts a vision of ‘four
great beasts’ representing ‘four kingdoms that will rise from the earth’.
‘The fourth beast is a fourth kingdom that will appear on earth. It will be
different from all the other kingdoms and will devour the whole earth,
constitutional and conceptual context’, Archivio della Ragion di Stato, VI (1998),

pp. 129–153.
131
Benjamin Straumann, ‘The Peace of Westphalia as a secular constitution’,
Constellations, 15 (2008), pp. 173–188.
132
This account of the Reichspublizisten is very compressed, for it is well documented in
English-language histories. See, for instance, Gerhard Oestreich, Neostoicism and the
Early Modern State (Cambridge, 1982), pp. 205–207; Julian Franklin, ‘Sovereignty and
the mixed constitution: Bodin and his critics’, in The Cambridge History of Political
Thought, 1450–1700, eds. J. H. Burns with Mark Goldie (Cambridge, 1991).
133
Samuel von Pufendorf, The Present State of Germany, ed. Michael J. Seidler, trans.
Edmund Bohun (Indianapolis, 2007), VI, 3, pp. 161–162. (References to this text are
to chapter, paragraph and page number, respectively.) Of course, several prominent
historians of political thought have over the last two decades attempted to recover a
republican or ‘neo-Roman’ conception of freedom which expressly denied that one
could be a ‘free man’ if one held one’s liberties as privileges. See particularly Quentin
Skinner, Liberty before Liberalism (Cambridge, 1998); and Quentin Skinner, Hobbes and
Republican Liberty (Cambridge, 2008).
96 Part I
trampling it down and crushing it’.134 But this would be the last such
kingdom on earth, and its overthrow would mark the end of the age.
Reinkingk considered that the four beasts corresponded to the
Babylonian, Persian, Macedonian and Roman Empires, and argued for
a translatio imperii from Rome to Germany until the end of time, such
that the Holy Roman Emperor was the same kind of sovereign as a
Roman Caesar.135 Pufendorf considered that such an argument
‘deserve[d] to be hissed at than answered seriously’.136 In fact, the Mon-
zambano reveals an admiration for the work of the ‘learned’ Hermann
Conring,137 who in his On the Origins of German Laws (1643) had already
demolished the basis for Reinkingk’s argument, showing that Roman law
had only gradually been introduced into the Holy Roman Empire, and
arguing further that there had been many more than four empires in
world history, and that ‘the Roman Empire had not even included all of
Europe, much less the new world’.138
A second argument was that the empire was an aristocracy. Henning
Arnisaeus, for example, considered that if sovereignty were shared and
indivisible at the same time, then this meant that commoners, estates
and emperor held any power granted to the others in the same measure
and simultaneously, and that the empire was an aristocracy because the
nobles held the balance. A similar position was taken by Bogilslaw
Cheminitz (Hippolithus a Lapide), writing as the Westphalian treaties
were being negotiated. He maintained that the emperor was accountable
to the estates, and thus that their authority was more fundamental than
his. Pufendorf answered that the emperor’s accountability derived from a
mutual ‘Compact and Agreement’ between himself and the estates. The
accountability therefore ran both ways. While the emperor had to ‘give an
account of his Actions’ to the estates, this did not mean that he was not
their superior. ‘For though the Emperor can in truth do nothing against
the Consent of the States, yet I think it is as true, that no man ever heard
the States pretended to do any thing without the Consent of the
Emperor’.139 Furthermore, a superior may bind his own power by a
promise, but that does not signify his inferiority to the other party;
134
Daniel 7:23, the New International Version.
135
See the editorial notes in Pufendorf, Present State, VI, 6, p. 168, fn. 5.
136
Ibid., VI, 6, pp. 167–168.
137
Ibid., V, 13, pp. 134–135; V, 14, p. 137; see also Hochstrasser, Natural Law Theories,
pp. 47–60.
138
Constantin Fasolt, ‘A question of right: Hermann Conring’s New Discourse on the
Roman-German Emperor’, Seventeenth Century Journal, 28 (1997), pp. 739–758, at
p. 747.
139
Pufendorf, Present State, VI, 7, p. 171.
as Pufendorf wrote in The Law of Nature, God himself has promised

salvation through the second Covenant. ‘GOD cannot, any other way,
become a Debtor to mortal Man, but upon Account of his free Promise,
the Breach of which would be repugnant to his Goodness’.140 Arguments
that the empire was an aristocracy were, then, ‘strangely absurd’, making
of the emperor:
a subordinate Magistrate, that wears a great many proud Titles precariously
bestowed upon him; as if whenever the Monarchy is not Absolute, it must
presently degenerate into an Aristocrasie, and a Prince must presently
acknowledge all those to be his Superiors whom he would not command and
govern as he pleased.141
Third, the likes of Christian Besold, Veit Ludwig von Seckendorff and
Johannes Limnaeus argued against the Bodinian mainstream that sover-
eignty was shared, in the sense that different sovereign powers fell
to different agents in the system. Such an understanding of sovereignty
did not, for Pufendorf, approximate to the reality of the empire. In Ger-
many, ‘the whole Supreme Power is not undividedly in the hands of many,
nor are the Parts of it divided between divers Persons or Colleges’.142 That
is, there was no one council where undivided sovereignty resided, nor were
all the parts of sovereignty clearly apportioned between different agents.
Having dismissed these three general positions, Pufendorf turned to
consider another category of political organisation, exemplified by
Switzerland and the United Provinces, to which Germany seemed to bear
some resemblance. This he called a ‘Confederate System’, which desig-
nated several states linked together ‘into one Body’ by virtue of a perman-
ent league or alliance.143 Pufendorf recognised that the Diets in the
Netherlands and Switzerland were not the sovereign senates of aristo-
cratic states. Rather, they were the councils of confederations, states
united by foedus but neither entirely fused together nor one state incorpor-
ated into another. These confederations manifested themselves as consti-
tuted unities capable of making laws for their members, but, in Murray
Forsyth’s words, they were ‘not the constituted unity of one people but a
unity constituted by states’.144 The Holy Roman Empire bore a superficial
sameness to these confederations, because there existed a central organ-
isation in which the estates coordinated their activities. Nevertheless,
Pufendorf regarded the presence of the emperor as sufficient to exclude
140
Pufendorf, Law of Nature, I, ix, 5, p. 91/103–104.
141 142
Pufendorf, Present State, VI, 7, p. 170. Ibid., VI, 8, pp. 173–174.
143
Ibid., VI, 8, pp. 175–176.
144
Murray Forsyth, Unions of States: The Theory and Practice of Confederation (Leicester,
1981), pp. 15–16.
98 Part I
Germany from membership of this category. The treaties of Westphalia

had determined that ‘every one of the Electors, Princes and States of the
Roman Empire, are so establish’d and confirm’d in their antient Rights,
Prerogatives, Libertys, Privileges, free exercise of Territorial Right’.145 As
Pufendorf understood, these ‘antient Rights’ were not of sovereignty, or
of some share in sovereignty, but rather pertained to the particular
German feudal system which supplied a scheme of customary law in the
event of the silence of the positive law.146 Jurisdiction of any affairs not
dealt with in specific laws belonged to the emperor in virtue of his
reserved rights, and the emperor’s prerogatives ‘remained the same in
1648 as they had been in 1618’.147 A pyramidal arrangement of vassalages
and overlords superintended by the emperor to some extent remained
even after 1648, despite the confederal configuration of the political body
of the states (the Reichsstände) which continued to exercise their ‘Territor-
ial Right’. As Peter Schröder points out, because a number of the smaller
states did not feel secure in their own territorial power, the emperor was
‘important to his old clientele as a guarantor of their independence and
undisturbed existence’.148 The emperor controlled the Imperial Aulic
Council, providing for subjects to appeal against their prince and neigh-
bouring princes to appeal against one another to the emperor, and ‘rather
than Westphalia limiting the potential of the Emperor and the Reich to
interfere in territorial conflicts, a chronological listing of Imperial execu-
tions of judicial verdicts against Reichsstände reveals the opposite, with the
majority of executions occurring after 1648’.149
What, then, was the Holy Roman Empire? It was not a democracy, or
an aristocracy, or a monarchy, or any reasonably straightforward
mixture of any of these. Nor, according to the Monzambano, was it
‘a Body or System of many Soveraign States and Princes, knit and
united in a League’. Instead, it was ‘something (without a Name)’ that
fluctuated between a limited monarchy and a system of states.150
145
Treaty of Westphalia, art. LXIV, http://avalon.law.yale.edu/17th_century/westphal.asp
(accessed February 9, 2009).
146
Pufendorf, Present State, chapter V, pp. 111–158.
147
Andreas Osiander, ‘Sovereignty, international relations, and the Westphalian myth’,
International Organization, 55 (2001), pp. 251–287, at p. 270.
148
Peter Schröder, ‘The constitution of the Holy Roman Empire after 1648: Samuel
Pufendorf’s assessment in his Monzambano’, Historical Journal, 42 (1999),
pp. 961–983, at p. 977; see also Peter H. Wilson, ‘Still a monstrosity? Some
reflections on early modern statehood’, Historical Journal, 69 (2006), pp. 565–576, at
p. 568.
149
Patrick Milton, ‘Intervening against tyrannical rule in the Holy Roman Empire during
the seventeenth and eighteenth centuries’, German History, 33 (2015), pp. 1–29, at p. 5.
150
Pufendorf, Present State, VI, 9, p. 176–177.
‘[T]he Government, State, or Empire of Germany hath something of

Irregularity in it’, Pufendorf observed, ‘which will not suffer us to bring
it under any of the principal or regular forms of Government, as they are
usually described by the Masters of Politicks’.151 Understood in terms of
those categories, the empire was ‘like some mis-shapen Monster’,
‘an Irregular Body’.152
In the second edition of the Monzambano, prepared during the early
1690s and published posthumously in 1706, the passage comparing the
empire to a monster was excised. There is some speculation in the second-
ary literature that Pufendorf tempered his language because of the hostility
his characterisation of the Holy Roman Empire engendered.153 However,
the later revisions may at least in part be explained by the fact that in
book VII of The Law of Nature, published six years after the Monzambano
first appeared and about two decades before he began work on the second
edition, Pufendorf found a way seemingly of bringing order to the Holy
Roman Empire.154 There, he distinguished between two kinds of system of
states. The first is what he had in the Monzambano named a confederate
system, ‘when two or more States are link’d together in one Body, by Virtue
of some League or Alliance’. The second, however, is where ‘two or more
States are subject to the same King’. It is possible in the case of ‘Moral
Bodies [corporibus moralibus], to have but one Head over several of them
together, and, consequently, to have one Person the Head of many distinct
Bodies’, even though in the case of natural bodies such a configuration
‘would bear so monstrous [monstrosum] an appearance’.155 Clearly, the
second category could be said to apply to the German Empire, and thus
the empire no longer appears as monstrous, for the empire was a union of
moral bodies. Seen in this light, the states of the empire were independent
societies, each constituted by a contract of association, which had each then
entered into a contract of subjection with the same sovereign, the emperor.
The Holy Roman Empire was thus what would, in more modern parlance,
be called a composite state or multiple kingdom.156
151 152
Ibid., VI, 1, p. 159. Ibid., VI, 9, p. 176.
153
On the speculation, see Wolfgang Burgdorf, Reichskonstitution und Nation:
Verfassungsreformprojekte für das Heilige Römische Reich Deutscher Nation in politischen
Schrifttum von 1648 bis 1806 (Mainz, 1998).
154
For a detailed account of the development in Pufendorf’s constitutional thought
between 1667 and 1672, see Alfred Dufour, ‘Federalisme et raison d’état dans la
pensée politique pufendorfienne’, in Samuel Pufendorf, filosofo del diritto e della politica,
ed. Vanda Fiorillo (Naples, 1996).
155
Pufendorf, Law of Nature, VII, v, 17, p. 681/690.
156
See H. G. Koenigsberger, Politicians and Virtuosi: Essays in Modern History (London,
1986), pp. 1–26; Conrad Russell, The Causes of the English Civil War (Oxford, 1990);
J. H. Elliot, ‘A Europe of composite monarchies’, Past and Present, 137 (1992),
100 Part I
There is some plausibility to what we may infer as Pufendorf’s tacit,

retrospective, description of the empire.157 All vital matters had to be
dealt with by the emperor and estates jointly in the Imperial Diet. What
the empire willed, it willed through the will of the emperor as sovereign,
but the communities represented in the Diet saw to it that the emperor
wielded this sovereignty in accordance with the fundamental laws of the
empire, to the observance of which he had pledged himself in his com-
pacts with the various states. They were like so many different faculties of
understanding, supplying the prerequisites for sovereign acts of will.
Thus, unlike a confederation on the Swiss or Dutch models, the Holy
Roman Empire appeared to be, in light of Pufendorf’s more abstract
rethinking of the Monzambano, a genuinely regular state:
in order to compleat the Essence of a just [or perfect: perfectae] and regular State,
such an Union is required, as shall make all Things, which belong to the
Government of it, seem to proceed from one Soul [velut ab una anima proficisci
videantur]. Now hence it is manifest, that the former Way of Mixture
[a confederate system] constitutes such a Body as is held together, not by the
Bond of one supreme Authority, but barely by Compact; and which therefore is
to be rank’d, not amongst the regular, but among the irregular States; being but
weakly guarded against foreign Assaults, and very obnoxious to inward Disorders
and Convulsions.158
The same cannot be said of the empire, where everything that is willed,
being willed by one natural person, ‘seem[s] to proceed from one Soul’.
Why might Pufendorf have wished to insist that composite states were
regular ones? With his argument that a system of states could subsist as a
kind of body politic when united under one crown, Pufendorf, I would
submit, hoped to supply a political-scientific rationale for religious peace
in Germany. There were solid pragmatic reasons that the figure of the
emperor ought to be regarded as a supreme sovereign able to punish
uncivil or unsociable behaviour and to confer the benefits of peace and
prosperity on his subjects. The ‘Difference of Religion . . . divides Germany,
and distracts it’, Pufendorf had written in the Monzambano.159 Germany
thereby had become easy quarry for external predators. During the year
that the first edition of the Monzambano was published, Louis XIV of
pp. 48–71; István Hont, Jealousy of Trade: International Competition and the Nation-State
in Historical Perspective (Cambridge, MA, 2005), p. 458.
157
Schröder, ‘Constitution of the Holy Roman Empire’.
158
Pufendorf, Law of Nature, VII, v, 13, p. 678/686.
159
Pufendorf, Present State, VII, 9, p. 204. For a discussion which emphasises Pufendorf’s
proposals for strengthening imperial unity, see Joachim Whaley, Germany and the Holy
Roman Empire, vol. 2, The Peace of Westphalia to the Dissolution of the Reich 1648–1806
(New York, 2012), pp. 96–99.
France, who had been rapidly expanding his military since 1661, invaded
the Spanish Netherlands. As it turned out, he would go on to attack the
United Provinces in 1672, and finally Protestant Germany in 1688.
Pufendorf considered that Louis was trying to secure hegemony in
western Europe. Catholicism was overrunning the continent. The treat-
ment of Louis in the Monzambano is drenched in irony:
upon all occasions he shews himself very solicitous for the general Liberty of
Germany; offering himself as a Mediator, to compose any Differences that happen
to arise between one Prince and another, and is ever ready to send Money or Men
to every one of them that desireth either of them; and in short, makes it his great
business to shew them, that they may certainly expect more from his Friendship
than from the Emperor’s, or from the Laws of the Empire.160
The ‘End of all this Courtship’, he went on, ‘is the opening a Way to the
Ruin of the German Liberty’.161 Germany had to be united if it was not to
deliquesce into chaos and so succumb to the Sun King’s designs. It had
to recognise one sovereign will in the empire, and that will had to be the
emperor’s. In The Law of Nature, Pufendorf found a way to conceptualise
that unity.
And yet Pufendorf still had to reserve to the communities constituting
the empire a right to resist the emperor, because this sovereign, like the
resident of the Palace of Versailles, was Catholic.162 Pufendorf sug-
gested, in a chapter added to the second edition of his Introduction to
the History of the Principal Kingdoms and States of Europe (1684), that
various emperors would have been ‘willing’ to convert to Protestantism
and thereby ‘disentangle themselves from the Popish sovereignty’, but
that they had been prevented from so doing for ‘reasons of State’,
namely, the fact that to do so would have provided an occasion for
French invasion, papal plotting and even the assertion of imperial claims
by the ‘Secular Princes’ of the empire, who ‘would then pretend to have
the same right to that Dignity with the House of Austria’.163 All the same,
the emperor’s Catholicism meant that his being German sovereign was
not an emphatically positive state of affairs. Pufendorf thus found himself
having to formulate a theory of sovereignty that could confound the
internecine conflict in the empire but at the same time allow Protestant
societies the right at some point to desist from obeying this sovereign.
160 161
Pufendorf, Present State, VII, 6, pp. 197–198. Ibid., VII, 6, p. 198.
162
On the tendency in the secondary literature to overstate Pufendorf’s anti-Catholicism,
and the resultant neglect of his support, albeit not boundless, for the Catholic emperor,
see Simone Zurbuchen, ‘Samuel Pufendorf and the foundation of modern natural law:
An account of the state of research and editions’, Central European History, 31 (1998),
pp. 413–428, at pp. 419–421.
163
Pufendorf, Principal Kingdoms, XII, §38, pp. 509–510.
102 Part I
In the Jesuit model of efficient causality in free agents Pufendorf found a

way to navigate the requisite middle way. Social order, he claimed,
ultimately depends on the respect of citizens for God as the giver of
natural law, and natural reason simply cannot extend to supplying
requisites for the actions of an indifferent will that contradicts natural
law. Since sovereignty is manifested in the will, a sovereign act of will that
is not accounted reasonable cannot be counted as the will of the com-
posite moral person of the state. In Suarezian faculty psychology, then,
Pufendorf found a basis for his own theory of sovereignty, by means of
which the sovereign will in the German Empire could be identified, while
allowing Protestant communities, in extremis, to resist their sovereign.
***
Let us take stock of the argument that I have so far developed about
Pufendorf’s theory of the state. The type of state that most interested
Pufendorf was the composite state, for he wrote as a subject of the Holy
Roman Empire, that complex compound political community consisting
of different territories often divided by religion and in which lines of
authority were not at all clearly drawn. Pufendorf was concerned to
theorise the composite polity in such a manner that it could be reconciled
with some kind of notion of the state as a sovereign actor. The Thirty
Years’ War marked a kind of implosion of the empire, and even after the
Westphalian treaties, that concluded the war and endeavoured to put the
empire on a safer footing, it remained an obvious target for foreign
powers intent on conquest. Pufendorf wanted to show how such an
unwieldy entity as the German Empire could be an agent and that it
could act with one mind. Sovereignty had to proceed, as he put it, from
one soul. Thus he argued that sovereignty was lodged in the will of the
emperor. At the same time, however, as a committed Lutheran, the
emperor’s Roman Catholicism frightened Pufendorf almost as much as
the prospect of invasion from outside: his sovereignty had to be checked.
Pufendorf’s conception of personhood brilliantly suited his purposes
in contending with this thorny conundrum. He took his ideas about
rational and free agency, and therefore the constituent aspects of person-
ality, from Francisco Suárez. Suárez maintained that the cause of human
liberty is the intrinsically free faculty of will, but that the root of this
liberty is the intellect, for without the cognitions and reasons supplied by
the intellect the will cannot act. The Jesuit writers developed this account
of human freedom during their debates with the Dominican order over
the nature of God’s grace and the capacity or incapacity of human beings
to take some initiative with respect to salvation. Whatever their reasons
for pursuing this picture of human free agency (explored in Chapter 1),
and however different Pufendorf’s own rationale for embracing it was (as
discussed in this chapter), he made this account of the psychological
economy of freedom central to his own characterisation of the person,
and therefore of the moral person of the state. Beginning with a theory of
moral entities which had to be understood by analogy to physical entities,
Pufendorf intended to emphasise that the moral person of the state, as a
particular moral entity, was free, and therefore must decide to act and
move itself to act in the same way as a free physical person. This entailed
the same internal organisation of the cognitive faculties in the state as in
the physical person. In the sensibly constituted state, Pufendorf argued,
there can be only a single will that counts politically: when individuals
submit their wills to the will of one person, they have set up sovereignty
over themselves, and the physical person who possesses that will is
sovereign. But in addition to will, there must also be in the state a
common intellect, and a multitude with any sense would settle it else-
where than with the sovereign. The root of the freedom of the sovereign
can and ought to be located outside sovereign will, operating as an
enabler and disabler of the acts of will of the person of the state. And
Pufendorf could see no reason why there might not, in a composite
polity, be several intellects, symbolised by the councils that had long
spoken for the communities of the empire, each supplying various con-
ditions sine qua non for the exercise of the one sovereign will. Thus,
Pufendorf and not Hobbes was the real theorist of ‘Westphalian’ sover-
eignty, properly understood.
The distinctiveness of Pufendorf’s theory of the person of the state will
be raised again in the Conclusion of this book, again to contrast it with
Hobbes’s theory, but also to point out other important implications of
the differences. These implications are best appreciated, however, in
light of the use made of the Pufendorfian depiction of the state by other
writers in the ensuing decades and centuries. It is to some of these that
the book turns in Part II.
3 Continental Appropriations: The Moral
Person of the State and the Law of Nations
We saw in Chapter 2 that Pufendorf’s theory of the state and of the

character of its sovereignty had several noteworthy aspects. First,
Pufendorf described the state as a moral person. This enabled him to draw
an analogy between human persons and states, on the basis of which he
argued that states bring themselves to act in much the same way that free
and rational individuals bring themselves to act. Second, Pufendorf
developed a constitutionalist account of sovereignty and its limitations
based on the division of the powers of intellect and will in generating
human free action, which I have called facultative sovereignty. Third, he
stressed the composite character of sovereignty as a kind of joint exercise
of intellect and will so that he could expound a theory of the composite
polity as a feasible political arrangement.
Pufendorf’s writings were widely read. The Law of Nature appeared in
more than forty editions and translations before it reached its centenary;
its specially commissioned epitome of 1673, On the Duty of Man and
Citizen according to Natural Law, saw 150 editions before its own
150th anniversary.1 His influence coincided with the extent to which
he was read. This is the first of three chapters documenting some of
the reverberations of Pufendorf’s account of the state as a moral person
in subsequent political theory. As Skinner points out in his ‘Genealogy’,
it was in the field of European public law – and the still broader field
of international law that developed on the basis of it – that the idea of the
state as a moral person really took hold. This is the part of the story that
I tell in this chapter.
It is striking that the most interesting uses that were made of
Pufendorf’s theory of the state in the fields of public and international
law were not made by the world’s first professor of the law of nations
as well as a lifelong practising diplomat, namely, Pufendorf himself.
Pufendorf’s international theory is certainly not without interest.
1
Michael J. Seidler, ‘Religion, populism, and patriarchy: Political authority from Luther to
Pufendorf’, Ethics, 103 (1993), pp. 551–569, at p. 562.
107
108 Part II
He was perhaps the most systematic and historically informed writer that
there had been on the themes of reason of state and the international
balance of power. He also wrote pioneering treatments of international
trade (in which he favoured closed commerce as opposed to free trade)
and European colonisation (in which he argued against rights of first
occupancy).2 But in all this his account of the state as a moral person
played no decisive part. Pufendorf’s writings on international theory
are at base about statespersons rather than the persons of states; they
are about life in the state of nature without a common superior; and
above all about advancing care for one’s own state by weighing
the advantages and disadvantages of different alliances. As Theodore
Christov has documented, Pufendorf’s writings on international relations
are extended reflections on Hobbes’s pretty brief considerations of
the same.3 It would fall to others to make more of Pufendorf’s non-
Hobbesian theory of the state for international theory.
This chapter examines the nomenclature of the moral person of the
state in the writings of three significant eighteenth-century inheritors
of Pufendorf’s state concept: Christian Wolff, Emer de Vattel and
Immanuel Kant. These are by no means the only writers to adopt
Pufendorf’s description of the state, but they are the ones who used it
to craft innovative and influential theories of international politics and
international law. It has been said that Wolff and Vattel between them
had ‘the most profound influence on the character of international law
as it was to develop in the nineteenth and twentieth centuries’;4 while
Kant’s thinking on international politics continues to motivate the polit-
ical imaginations of cosmopolitan thinkers and their critics. For each
of these writers, the understanding of states as persons leads to an
attempt to consider the depth and breadth of the obligations that states
owe to one another, and the extent to which these can be comprehended
and enforced in line with some common law of nations. For each, too,
the Holy Roman Empire, and the model of the composite polity that it
represented, featured somewhere in the motivations for writing about
politics between states. But each developed a very different account of
2
The most extensive discussion of Pufendorf’s international theory is now Theodore
Christov, Before Anarchy: Hobbes and His Critics in Modern International Thought (New
York, 2015), pp. 175–210. See also Jonathan Haslam, No Virtue Like Necessity: Realist
Thought in International Relations since Machiavelli (New Haven, 2002), pp. 62–67;
Stephen C. Neff, War and the Law of Nations: A General History (Cambridge, 2005),
pp. 137–138 and 149–151 (both on reason of state and the balance of power); Tuck,
Rights of War and Peace, pp. 152–165 (on trade and imperialism).
3
Christov, Before Anarchy, esp. pp. 143–174.
4
Matthew Craven, ‘Statehood, self-determination, and recognition’, in International Law,
ed. Malcolm Evans, 3rd edn. (Oxford, 2010), p. 211.
Continental Appropriations 109
state obligations and the possibilities of interstate cooperation. This

chapter shows how Wolff, Vattel and Kant, examined in Sections I, II
and III, respectively, handled the concept of the moral person of the
state, and for what argumentative ends. Although the account offered
here seeks to show how each writer took the concept of the moral person
of the state in different directions, an intersection between the three
theories is a concern with the idea of ‘perfection’, which as we shall see
helped to orientate the treatment of the concept of state in this context of
eighteenth-century arguments about international law and ethics.
I. Wolff
The first major writer to take up Pufendorf’s description of the state as
a moral person and to investigate its consequences with respect to
the external bearings of states was Christian Wolff. Wolff, of course,
wrote on much more than the state and the law of nations, and what he
did with the theory of the moral person of the state was, as we shall see,
in large part a consequence of his taking a different worldview to
Pufendorf. Wolff was an epigone of the great Platonist polymath
Gottfried Wilhelm Leibniz. His endeavour to work into systematic form
his master’s copious and fragmentary papers and notes on life, the
universe and everything has not endeared him to many of Leibniz’s
admirers. For one of these, Matthew Stewart, Wolff’s ‘shelf-bending
series of works . . . provide ample evidence in support of the truism that
none can wreak more damage on a philosopher’s reputation than his
followers’.5 For the exhausted editor of one of his 920-page tomes,
Wolff is ‘the most prolix and dreary author of his century, even of the
whole of modernity’.6 And I cannot resist quoting Lewis White Beck:
Wolff ‘illustrates what needs no illustration. He proves . . . what needs
no proof and admits of no proof. He defines what needs no definition . . .
He recommends his other books, he boasts of what he has accomplished.
He moves with glacial celerity. He ruthlessly bores’.7 He remains, how-
ever, a crucial theorist in his own right of the legal and moral foundations
of international politics.
As we shall see, Wolff adopted certain terms of art in Pufendorf’s
vocabulary, but these were put to use in elaborating an ontology that
5
Matthew Stewart, The Courtier and the Heretic: Leibniz, Spinoza, and the Fate of God in the
Modern World (New Haven, 2005), p. 308.
6
Marcel Thomann, ‘Vorwort’, in Christian Wolff, Grundsätze des Natur- und Volckerrechts,
ed. Marcel Thomann (Hildesheim, 1980), p. v.
7
Lewis White Beck, Early German Philosophy: Kant and His Predecessors (Cambridge, MA,
1969), p. 258.
110 Part II
was in crucial respects antithetical to Pufendorf’s own.8 The ontology

was Leibniz’s, and it was antithetical to Pufendorf’s in large part
because it dismissed the possibility of human freedom. Leibniz himself
had written about Pufendorf in order to dispute the latter’s theory of
law as being the command of a superior.9 But Leibniz also indirectly
took issue with Pufendorf’s theory of freedom, for he censured the
Molinist account of freedom adopted by Pufendorf, which, as we saw
in the previous chapters, stressed the necessity of an indifferent will to
secure agential liberty. On the Molinist view, according to Leibniz,
‘true freedom’ is made to ‘depend on an equipoise, vague, complete
and absolute’.10 The final deliberation of the Molinist agent’s will did
not, for Leibniz, constitute an action at all, but was instead an unpre-
dictable event, something that effectively befell a person and thus
constituted a passion rather than an action.11 Molinism was only one
of Leibniz’s targets, however: he set out to establish that the most
compelling pictures of human freedom that philosophy had bequeathed
to us were chimerical. His motivations were theological, or more pre-
cisely theodicean: the issue that dominated Leibniz’s philosophical life
was to understand why an all-knowing, all-loving and all-powerful God
would create a world of so much obvious imperfection. His answer,
in essence, was that if anything were at all different, the world would be
the worse for it; and this must be impossible, because God’s perfection
meant that he was always morally necessitated to do the best. There-
fore, when ‘a wicked man exists, God must have found in the region of
the possible the idea of such a man forming that sequence of things,
the choice of which was demanded by the greatest perfection of the
universe, and in which errors and sins are not only punished but even
repaired to greater advantage, so that they contribute to the greatest
good’.12 It simply did not bother Leibniz that his theory seemed to
eliminate the possibility of genuinely free action. ‘It is this chimera of an
imaginary independence which revolts us against the consideration of
determination, and brings us to believe that there are difficulties when
8
For an overview of some of the differences between the men, see Detlef Döring, ‘Leibniz’s
critique of Pufendorf: A dispute in the eve of the Enlightenment’, in The Practice of Reason:
Leibniz and his Controversies, ed. Marcelo Dascal (Amsterdam, 2010).
9
Gottfried Wilhelm Leibniz, ‘Opinion on the principles of Pufendorf (1706)’, in Leibniz,
Political Writings, trans./ed. Patrick Riley, 2nd edn. (Cambridge, 1988). For recent
discussion: Christopher Johns, ‘Leibniz, Pufendorf, and the possibility of moral self-
governance’, British Journal for the History of Philosophy, 21 (2013), pp. 281–301.
10
Gottfried Wilhelm Leibniz, Theodicy: Essays on the Goodness of God, the Freedom of Man
and the Origin of Evil, ed. Austin Farrer, trans. E. M. Huggard (London, 1952), p. 406.
11
George MacDonald Ross, Leibniz (Oxford, 1984), pp. 110–111.
12
Leibniz, Theodicy, p. 335.
there are none’.13 In fact, he considered that he had found a way of

exculpating sinners from their misdeeds, by showing how all things
contribute to the perfection of creation. Everything that comes to pass
has been determined in God’s intellect, and ‘as a result of determining
reasons, the knowledge whereof, if we had it, would make us know at
the same time why the thing has happened and why it did not go
otherwise’.14 Leibniz posited, in his Monadology (1714), a world
teeming with substances that God has pre-harmonised from the outset
to bring about this best of all possible worlds. Each individually is
animated to strive towards perfection, meaning an exertion for union
with God, a progression ‘to our master, and to the final cause, which
must be the entire goal of our wills’.15 On this account, will or freedom
is not a power to command choice between cognised alternatives but a
feeling or sensitivity for the divinely ordained order.16 Nothing like this
metaphysics of perfection can be found in Pufendorf’s work: it resem-
bles the Bañezian metaphysics stressing the end-directedness of
Creation, rather than the Suarezian or Pufendorfian ontology stressing
the priority of efficient causality. But such a metaphysics of perfection
would be pivotal to the onward development of the concept of the moral
person of the state in eighteenth-century Continental thought.
With most of Leibniz’s perfectionism Wolff was quite happy to concur,
and the idea of perfection he made central to his entire system of
thought.17 Yet as Hochstrasser has argued, Wolff, while still stressing
the creaturely teleology of perfection, argued more limitedly that sub-
stance strives ‘merely for self-perfection instead of its shaping out its
individual characteristics in the direction of reunion with the divine’.18
Perfectibility was less a movement towards a higher order of perfection –
God’s nature – than it was about self-perfection. ‘For since the human
soul’, wrote Wolff, ‘is receptive to the operation of grace – otherwise it
13
Gottfried Wilhelm Leibniz, Textes inédits, ed. Gaston Grua (New York, 1985), vol. 2,
p. 482.
14
Leibniz, Theodicy, pp. 394–395.
15
Gottfried Wilhelm Leibniz, Philosophical Texts, eds. R. S. Woolhouse and Richard
Francks (Oxford, 1998), p. 281.
16
Leibniz, Textes inédits, vol. 1, p. 139.
17
For a detailed account of where Wolff variously overlaps and departs from Leibniz’s
metaphysics, see Donald Rutherford, ‘Idealism declined: Leibniz and Christian Wolff’,
in Leibniz and his Correspondents, ed. Paul Lodge (Cambridge, 2004); and, very concisely,
Martin Schönfeld, ‘Christian Wolff and Leibnizian monads’, The Leibniz Review, 12
(2002), pp. 131–135.
18
T. J. Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge, 2000),
p. 161; see also Knud Haakonssen, ‘German natural law’, in The Cambridge History of
Eighteenth-Century Political Thought, eds. Mark Goldie and Robert Wokler (Cambridge,
2006).
112 Part II
could not accept grace, when confronted by it – there should be, in the
essence and nature of the soul, some reason, some disposition, that
enables it to receive this into itself’.19 In other words, the recognition
that the human intellect contained its own resources for recognising
God’s grace, and thereby improving itself, rendered it feasible to set up
human nature itself as a sufficient guide to what was entailed by human
perfection.
This made it possible ‘to assess ethical systems by their conformity to
the nature of the human mind’.20 Wolff considered that ‘the human
being who makes use of the strength of nature can distinguish good
and evil’, and that such a person would be ‘drawn to the sweetness of
the good and avoid the bitterness of evil’.21 This entailed that the reason
for the goodness or otherwise of an action could be found in the nature of
man.22 Actions are good or bad to the extent that they assist the
perfection or imperfection of the individual.23 One basic law therefore
guides human conduct: ‘Do what makes you and your state more perfect,
and refrain from what makes you and your state less perfect’. (This was
not the political state, but meant the position that a person found him- or
herself in at any given time.) This is the ‘Law of Nature’, for ‘since this
rule applies to all the free actions of men there is no need for any other
law of Nature’.24 We can know this law by reason, and ‘a reasonable man
needs no further law, for because of his reason he is a law unto himself’.25
(Quite what it means to be a law to oneself when all that one does has
been predetermined by God is a tricky issue, but not one that I want to
pursue further here.)
Wolff was clear that perfection could not be obtained through selfish
behaviour. Humans are social beings and therefore moral perfection will
19
C. Wolff, ‘Discourse on the practical philosophy of the Chinese’, in Moral Enlightenment:
Leibniz and Wolff on China, eds. Julia Ching and Willard G. Oxtoby (Nettetal, 1992),
p. 160.
20
Mark Larrimore, ‘Orientalism and antivoluntarism in the history of ethics: On Christian
Wolff’s Oratio de Sinarum Philosophia Practica’, Journal of Religious Ethics, 28 (2000):
pp. 189–219, at p. 197.
21
Wolff, ‘Philosophy of the Chinese’, p. 167.
22
‘It will be apparent from the very system of natural law that the reason for actions, what
makes them good or evil, is selected by human nature and, consequently, by what
characterizes the human mind’. Christian Wolff, ‘Prolegomena to empirical
psychology’, trans. Robert J. Richards, Proceedings of the American Philosophical Society,
124 (1980), pp. 230–234, at p. 233.
23
Ibid., p. 178.
24
Wolff quoted in Thomas P. Saine, The Problem of Being Modern, or the German Pursuit of
Enlightenment from Leibniz to the French Revolution (Detroit, 1997), p. 144.
25
Wolff quoted in J. B. Schneewind, The Invention of Autonomy: A History of Modern Moral
Philosophy (Cambridge, 1998), p. 439.
entail showing kindness towards others. Moreover, it is rational to assist

others in the hope of ascertaining their assistance when needed. Reason
dictates that men come together so that each individual is in a more
favourable position for cultivating the perfection of his own soul. Wolff
therefore took up the topic of obligation – and when he did he borrowed
the terminology of the most prominent natural law theorist on the
European continent, namely, Pufendorf. As it happens, Pufendorf had
written about obligation or duty by appealing to the idea of perfection,
specifically a distinction between what he called perfect and imperfect
duties. Perfect duties were those which give rise to precisely specifiable
obligations on the part of others, and were enforceable. Contracts, for
instance, gave rise to perfect duties, for the terms of agreement were
clearly specified, and a contractor could appeal to a court of law to
compel another party to that compact to comply with its requirements.
Imperfect duties, however, covered our obligations outside the domain
of those duties entailing strict obligations. In fulfilling imperfect duties,
the point was only that we provided some other person some good or
other, ‘not considering whether the Thing given in Payment be equal to
the Reason why it is due or not’. Pufendorf provided the examples of
coming to someone’s aid ‘with his Counsel, Goods, or Help’, or per-
forming a service of ‘Piety, Reverence, Gratitude, Humanity or Benefi-
cence’.26 The point of Pufendorf’s distinction was to insist that, although
we cannot exactly specify certain standards of behaviour required at a
given moment, we still all have a duty under natural law to treat others
with some consideration of their common humanity.
Pufendorf’s vocabulary must have been attractive to Wolff, dealing as
he was with obligation in the context of a perfectionist metaphysics. But
Pufendorf himself had been no Leibnizian perfectionist, and so it should
be no surprise that Wolff put the Pufendorfian phraseology to different
ends. Indeed, according to Wolff any obligations contracted to one
another counted as imperfect duties. Disagreeing with Pufendorf, Wolff
maintained that contractual obligations are imperfect for two reasons.
First, obligations contracted with others, being in effect contingent forms
of words, are not accessible to individual conscience, the term Wolff used
to refer to ‘our general ability to know what is good or bad in action’.27
Second, as befits a metaphysics of individual perfectibility, reason is
fundamentally a matter of what each person deems, on reflection, to be
reasonable, so that there can be no way of decisively sorting out contro-
versies in respect of different reasons given by different people. The best
26
Pufendorf, Law of Nature, I, vii, 8, p. 81/91.
27
Wolff quoted in Schneewind, Invention of Autonomy, 439.
114 Part II
we can hope for is that diverse individuals nonetheless come to the same
conclusion about what is reasonable. Making a promise to another
individual binds only because of the good that promising will bring
about; if someone’s conscience tells them to break a promise, then he
should simply break it. What Wolff called ‘perfect duties’ were duties of
conscience, and they more or less offset unreservedly any obligations
derived from fabricated human agreement. Perfect duties were to oneself
and one’s own perfection. To be sure, there were so many possible
human actions, Wolff thought, that no one could, in good conscience,
deem reasonable. But this did not alter the fact that ‘natural law pertains
primarily to the duties of man to his own soul’ and its perfection, rather
than to other people.28 Pufendorf’s terminology had been employed,
but the meaning that Wolff had given to the categories of perfect and
imperfect duties would now have been unrecognisable to him.
Having parsed obligations between those that were perfect and imper-
fect, Wolff went on to posit a division in the law of nature itself based on
the same partition. He first announced a division that was completely
traditional. ‘The law of nature is called preceptive when it obliges us to
perform some act, prohibitive when it obliges us to omit some act, and
permissive when it gives us a right to act’.29 Theorists had argued since the
high medieval period that natural law on some points was mutable
relative to human deeds and institutions, and Wolff’s use of the notion
of permissive natural law was in keeping with such a tradition. Natural
law, it had been argued, ‘shows something to be equitable having regard
to a previous positive law’ – so that, if for instance, a system of private
property has been established in positive law, natural law will proscribe
theft, even though private property did not exist ‘naturally’.30 Wolff,
in similar terms, argued that although nature gives to men natural law,
‘this can then be changed by the acts of men voluntarily, by agreement
between individuals, so far as concerns those things that belong to
permissive law’.31 He thus distinguished between what we may call a
necessary and a voluntary law of nature. The necessary law of nature
28
Wolff, ‘Empirical psychology’, p. 233.
29
Christian Wolff, Institutiones juris naturae et gentium, ed. Marcel Thomann (Hildesheim,
1969), §47, p. 24: ‘Lex naturae dicitur praeceptiva, quae ad actiones committendas nos
obligat; prohibitiva, quae obligat ad actiones omitendas; permissiva, quae us dat ad
agendum’.
30
Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and
Church Law, 1150–1625 (Atlanta, 1997), pp. 179–180.
31
Christian Wolff, Jus gentium methodo scientifica pertractatum, ed. J. H. Drake, 2 vols.
(Oxford, 1934), vol. 2, §3, p. 9. I have made use of Drake’s translation (vol. 2), to which
page numbers refer. Any Latin interpolations, such as the one here, are taken from vol. 1,
which is a facsimile of the 1764 edition.
applied to those acts that human beings are always compelled to perform
or omit – namely, to the sphere of perfect duties or duties of conscience –
while the voluntary law of nature applied in light of prior agreements
(contracts) between persons, so that it applied in the realm of
imperfect duties.32
Coming now to Wolff’s political theory, the state on his account had an
important role to play in helping to ensure the perfection of individual
souls on a large scale. For Wolff, all human cognition begins with the
senses: the ‘faculty of imagination and other faculties of the mind depend
upon [the] faculty of sensation’.33 The mind has no dispositions to act
other than its motives, and a representation of something as perfect,
however that representation arises, is therefore a sufficient reason for
activity. When a human being acts so as genuinely to perfect his soul, this
action will have begun as a clear sensory perception, followed by saga-
cious reasoning. Errors and sins, by contrast, either began as indistinct
representations, or otherwise faulty reasoning followed the perception
howsoever clear that was. It is our overriding duty, Wolff nevertheless
maintained, to avoid falling into error and sin, and thus we ought to
ensure that our conscientious judgments are as perspicacious as possible.
This is where the state comes in. The positive law propagated by the state
obliges men by connecting a motive to will, or refrain from willing, to a
particular action; the state’s threat of execution, for example, obliges
someone afraid of the gallows not to steal.34 The state, according to
Wolff, facilitates individuals in their pursuit of the cultivation of their
own perfection by promulgating positive laws that help to clarify sensory
and cognitive processes with respect to living morally fulfilling lives.
But the issue that Wolff now had to face was that his division of the law
of nature could be construed as weakening civil authority from the
outset. If men had contracted with one another to establish the state,
then what was to stop them from deciding, individually or jointly, at any
given point, that that contract no longer had authority over them?
Wolff justified the state, and sought to fortify its power, by elevating
its own conscience over those of individual human persons. It might be
true that nature has not imposed on men the precise obligation of uniting
together in civil society, he wrote, but they have done so for the sake of
their own excellence and in order to furnish themselves with a security
unobtainable in the state of nature. Once instituted, however, the state
was itself declared to be, in his treatise on The Law of Nations according to
32
Tierney discusses Wolff briefly in Brian Tierney, ‘Permissive natural law and property:
Gratian to Kant’, Journal of the History of Ideas, 62 (2001), pp. 381–399.
33
Wolff, ‘Rational psychology’, p. 235. 34
Schneewind, Invention of Autonomy, p. 438.
116 Part II
the Scientific Method (1749), as it was for Pufendorf, ‘a moral person’

(persona quaedam moralis).35 Again echoing Pufendorf, the moral person
of the state was said to be a ‘composite entity’ (entis compositi),36 best
understood by analogy to the human person compounded of body and
soul. ‘If any one has sufficient intelligence, and has an adequate concep-
tion of the human soul and body . . . he will not get a better conception of
the perfection of a nation and its form of government than by aid of this
analogy’.37 Because the state itself was a person like any other on Wolff’s
account, the state had its own conscience. This could not be overridden
or negated on the basis of another person’s conscientious injunctions.
The authority invested in the state at its institution gave to the state a
conscientious duty to preserve itself and to ensure that dissenters were
brought to heel.
This was one of Wolff’s purposes when he adopted Pufendorf’s
category of the moral person of the state in his own political theory.
Another was that it allowed him to argue against Hobbes’s characterisa-
tion of the law of nations. Hobbes had said very little about this. In
Leviathan, his comments were restricted to this: ‘Concerning the Offices
of one Soveraign to another, which are comprehended in that Law, which
is commonly called the Law of Nations, I need not say any thing in this
place; because the Law of Nations, and the Law of Nature, is the same
thing’.38 States remained in the state of nature, and therefore the only law
that sovereigns recognised in their relations was natural law. Hobbes’s
influence on this point was in inverse proportion to the length at
which he put it: that the law of nations is the law of nature for states
was unanimously accepted for a century; Pufendorf, for one, wholly
acceded to it.39 Wolff did not. He began by ostensibly agreeing with
Hobbes: the law of nature and the law of nations are the same thing.
‘Since nations are regarded as individual persons living in a state of
35
Wolff, Jus gentium, Prolegomena, §3, p. 10. Knud Haakonssen translates persona
quaedam moralis as ‘juridical person’ in his commentary in ‘Christian Wolff
(1679–1754)’, in The Oxford Handbook of the History of International Law, eds. Bardo
Fassbender and Anne Peters (Oxford, 2012), p. 1108, which is not quite right. I will say
more about this in Chapter 5.
36 37
Ibid., chap. 1, §29, p. 21. Ibid., §30, p. 22.
38
39
For excellent expositions of other ways in which this statement exerted a great influence
on the developing field of international law, see Noel Malcolm, Aspects of Hobbes
(Oxford, 2002), pp. 432–456; and David Armitage, Foundations of Modern International
Thought (Cambridge, 2013), pp. 59–89. For a fascinating suggestion about why Hobbes
dedicated so little space to the law of nations, see Quentin Skinner, ‘Surveying the
foundations: a retrospect and reassessment’, in Rethinking the Foundations of Modern
Political Thought, eds. Annabel Brett and James Tully with Holly Hamilton-Bleakley
(Cambridge, 2006), pp. 249–250.
nature, moreover, as men in a state of nature use nothing except natural

law, nations also originally use none other than natural law; therefore the
law of nations is originally nothing except the law of nature applied
to nations’.40 But Wolff did not want fully to endorse this position. Moral
persons, after all, belonged to a different class of entity than natural
persons, and, even if Pufendorf had not himself made anything of this,
this fact therefore had to be recognised in any account of the obligations
that states owed by natural law. Ironically, therefore, Pufendorf’s consid-
erably more naturalised conception of the person was used against
Hobbes, with his performative conception of personhood, even though
Wolff was claiming that moral persons could not be treated as though
they were the same as natural human persons.
A second point that Wolff wanted to make was that the Hobbesian
picture failed to distinguish between necessary and voluntary natural law.
There was a valid analogy between the perfect obligation of conscience
and the sovereign’s duties to his subjects, and also between imperfect
obligations and the duties corresponding to treaties made between sov-
ereigns. States as moral persons were bearers of ‘natural’ obligations
of conscience, but the nature implicated here was their nature as states,
not ‘natural’ as it applied to physical individuals. This correspondingly
altered the basis of the kinds of contract that state-persons, as against
natural ones, would make with one another. On this basis, Wolff differ-
entiated between the ‘necessary’ (necessarium) or ‘natural’ (naturale) and
the ‘voluntary’ (voluntarium) law of nations, mirroring the contrast
between necessary and voluntary natural law.41 Such distinctions were
foreign to Pufendorf’s work.
Wolff claimed, however, that it was not enough for states to observe
the necessary and voluntary law of nations. A civil authority had been
required in order to end the potential disorder that would ensue from the
quite proper priority of individual conscience over promises between
individuals living together in a community. Likewise, a means had to
be found to mitigate a condition of war between states. The necessary law
of nations was insufficient because it only dictated the sorts of obligations
owed by a state to its own citizens in respect of that state’s external affairs;
not being to citizens of other states, these obligations were scarcely
adequate to restrain a sovereign who conceived of his internal duties as
entailing aggrandisement in the international domain. The voluntary law
of nations fell into two categories. ‘Stipulative’ law, consisting of treaties
entered into between nations, was not enough because it was not
40 41
Wolff, Jus gentium, Prolegomena, §3, p. 9. Ibid., §4, p. 10 and §22, pp. 17–18.
118 Part II
universal: ‘just as the private law for citizens, derived from agreements
entered into between themselves, is considered as having no value at all
as civil law for a particular state, so also the law for nations, derived from
agreements entered into with other nations, it seems cannot be con-
sidered as the [universal] law of nations’.42 Equally, ‘customary’ law,
resting on ‘the tacit consent of the nations, or, if you prefer, upon a
tacit stipulation’, was again only ‘a particular law’.43 What was required,
according to Wolff, was a ‘positive law of nations’, or ‘what reason
itself teaches is to be observed as law among all nations’. There should
exist, therefore, a person of international standing, a rector, ‘who,
following the leadership of nature, defines by the right use of reason what
nations ought to consider as law among themselves, although it does not
conform in all respects to the natural [or necessary] law of nations’.44
Such a person would not be a world sovereign, but simply the head of the
civitas maxima, or maximal association of civitates, where these civitates
are sovereign states. He would not lay down the positive law applying
within each state, only a positive law regulating their conduct directed
externally.45 This positive law of nations would, minimally, ensure
peaceable relations between the states, but also coordinate those efforts
of these states directed at their own perfection such that the greatest
overall good of this society of states itself would be realised.
In Platonic style, Wolff argued that in the civitas maxima a philosopher
would be king.46 Reading Wolff without an eye to context can give the
distinct impression of a writer who, like Plato, wished of politics only that
it would make the world safe for philosophers. However, the abstraction
of his written works obscures Wolff’s intentions. If he was not himself a
philosopher king, he was the acknowledged king of the cameralists.47
After the Peace of Westphalia, the princes of the German Empire grad-
ually assembled, in Kammern or chambers, specialised colleges dedicated
to administering the territorial finances. ‘Cameralism was . . . from its
42 43 44
Ibid., §23, p. 18. Ibid., §24, pp. 18–19. Ibid., §21, p. 17.
45
Wolff’s civitas maxima is certainly not a ‘democratic global commonwealth’, as Glenn
Cavallar hyperbolically has it, in his ‘Vitoria, Grotius, Pufendorf, Wolff and Vattel:
Accomplices of European colonialism and exploitation or true cosmopolitans?’,
Journal of the History of International Law, 10 (2008), pp. 181–209, at p. 204.
46
Christian Wolff, ‘On the philosopher king and the ruling philosopher’, in Moral
Enlightenment; see also Frank Grunert, ‘Absolutism(s): Necessary ambivalences in the
political theory of Christian Wolff’, Tijdschrift voor Rechtsgeschiedenis, 73 (2005),
pp. 141–152.
47
Andre Wakefield thinks that ‘Wolffian’ best characterizes the approach to knowledge of
the cameralists: Andre Wakefield, ‘Cameralism: A German alternative to mercantilism’,
in Mercantilism Reimagined: Political Economy in Early Modern Britain and its Empire, eds.
Philip J. Stern and Carl Wennerlind (New York, 2014), p. 136.
beginnings structured by unstated assumptions that reflected the mater-

ial and institutional realities of fiscal administration in the territories of
the Holy Roman Empire’.48 The cameralists recognised that the domin-
ant economic theory in Europe at the time, mercantilism, was not appro-
priate to a context characterised by a lack of colonies outside the empire
and the impossibility, thanks to the strong stabilising role of the emperor,
of making incursions into neighbouring territories within the empire. But
they also saw the relative porousness of the German states as something
to capitalise on in developing the natural and human resources within
each state.49 Wolff’s work on the law of nations was concerned above all
else with the state’s duties to nurture individual perfection through the
enhancement of labour and its preconditions: he wrote about the state’s
responsibility to guarantee proper nourishment, housing, education,
drinking water, clean air and the conservation of natural resources.50
The interventionist, tutelary regime that he espoused was an inspiration
to the cameralists, whose key insight had always been that spontaneous
efforts, undirected by superior insight, were unlikely to be successful.51
Wolff saw in all this a crucial role for the Holy Roman Emperor. He may
indeed have given ‘one of the earliest formulations of the principle of
subsidiarity’,52 but he nonetheless saw all ‘lower associations’ – including
the state – despite already ‘having achieved a measure of form in the
pursuit of their own appropriate, productive and reproductive ends’,
as requiring to be directed for greater ends by a still greater power.53
It would be a mistake to imagine that Wolff’s civitas maxima was an
utter abstraction. This was his version of Pufendorf’s composite polity,
and its model continued to be the Holy Roman Empire. Wolff had in
November 1723 been forced to leave Prussia after it was alleged that
he had claimed that God had predetermined soldiers who deserted the
king’s army, and he only again felt secure when in 1745 he was
made an imperial baron of the Holy Roman Empire, giving him a
symbolic independence from any ruler except the emperor.54 Far from
48
Ibid., p. 135.
49
Mack Walker, German Home Towns: Community, State, and General Estate, 1648–1871
(Ithaca, NY, 1971), pp. 11–33.
50
Wolff, Institutiones, §§112–116, pp. 57–61.
51
Keith Tribe, Governing Economy: The Reformation of German Economic Discourse,
1750–1840 (Cambridge, 1988), pp. 63–65.
52
Jürgen G. Backhaus, ‘Christian Wolff on subsidiarity, the division of labor, and social
welfare’, European Journal of Law and Economics, 4 (1997), pp. 129–146, at p. 136.
53
Douglas Moggach, ‘Freedom and perfection: German debates on the state in the eighteenth
century’, Canadian Journal of Political Science, 42 (2009), pp. 1003–1023, at p. 1008.
54
Wolfgang Dreschler, ‘Christian Wolff (1679–1754): A biographical essay’, European
Journal of Law and Economics, 4 (1997), pp. 111–128.
120 Part II
being an abstraction of a world state, Wolff’s civitas maxima is better

viewed as an abstraction of the German Empire.
The first major appropriation of Pufendorf’s definition of the state,
then, employed it in a theory of the composite polity, just as Pufendorf
had. The major difference here was that Wolff did not adopt Pufendorf’s
facultative model in order to show how the composite state could yet
be an agent. There is no sense that the sovereign will of the empire resides
in the emperor alone, exercised in accordance with the stipulations of an
intellect or several thereof located elsewhere. In Wolff, each of the states
constituting the civitas maxima has its own intellect and will by virtue of
being a moral person, and these must be lodged in the state sovereign.
Inasmuch as the state is considered as a single person, to it belongs an intellect
peculiar to the nation . . . Just as in any nation we conceive an intellect peculiar to
the nation itself as such, so also in it a will is thought of peculiar to the nation as
such . . . Just as the intellect of a nation, so also its will is in the ruler of a state . . .
And although these things may seem lofty . . . nevertheless they follow, as it were
spontaneously, when those things are given which we have proved concerning the
constitution of the state [i.e. that the state is a moral person].55
The moral personae of the individual states must accept the authority of
the rector because otherwise they are stranded in the state of nature,
where their self-perfection can go no further. Pufendorf had been con-
cerned to show that only if one person were acknowledged sovereign in
the empire could there be a lasting peace. Wolff’s context is different.
The best part of a century on from the Thirty Years’ War, the challenge
now was for the states to advance their own interests, on the understand-
ing that this was something best pursued in a cooperative enterprise.
Wolff did next to nothing to bring out the ramifications of taking up
Pufendorf’s theory of facultative sovereignty within a Leibnizian ontology
of substances. These would become much clearer in the writings of Vattel.
II. Vattel
Emer de Vattel was Wolff’s greatest and most influential disciple.56 His
Le droit des gens (1758) is essentially a treatment of the law of nations that
makes use of Wolffian vocabulary to extend an argument that is in many
55
Wolff, Jus gentium, §§56–57, pp. 36–37.
56
This section draws on and extends arguments I have made in Ben Holland, ‘The moral
person of the state: Emer de Vattel and the foundations of international legal order’,
History of European Ideas, 37 (2011), pp. 438–445; and Ben Holland, ‘Vattel on morally
non-discriminatory peace’, in The Question of Peace in Modern Political Thought, eds.
Toivo Koivukoski and David Edward Tabachnick (Waterloo, ON, 2014).
respects akin to that of Vattel’s self-confessed master. Vattel’s book had

modest beginnings, as he tells us in the preface. His initial ambition
was only to publish and clarify ‘for the greater number of readers, the
knowledge of the luminous ideas’ of Wolff on the law of nations.57
Wolff’s original exposition made little sense to anyone not conversant
with the methods of formal geometry, and it assumed that readers were
acquainted both with the difficult perfectionist metaphysics of Leibniz,
and with his own ideas developed elsewhere. The more Vattel
studied Wolff’s opus, however, the more he ‘ventured to deviate from
the path’ Wolff had pointed out, and sometimes to adopt ‘sentiments
opposite to his’.58
One path from which Vattel ventured to deviate led him to contend,
contra Wolff, that the idea of the civitas maxima was an impossible one.
Vattel’s biography is of great relevance here. He hailed from the princi-
pality of Neuchâtel, today a Swiss canton, but whose precarious existence
as a pawn in the game of dynastic politics during Vattel’s lifetime is
directly relevant to understanding his renunciation of the civitas maxima.
According to a long tradition, Neuchâtel was an hereditary principality,
but in 1707, with the death of Princess Mary, the throne fell vacant, with
no direct line of succession. The most credible candidate for the crown
was one of the many French princes, the claim of one of whom was
supported by Louis XIV. However, recent French annexations of parts
of the Holy Roman Empire – what transpired was precisely what
Pufendorf had feared in the Monzambano – provoked fears of French
designs on Neuchâtel’s political autonomy, while the revocation of the
Edict of Nantes in 1685 had forced large numbers of Huguenot refugees
into exile in Switzerland, stoking up yet more resentment of France.
Vattel’s family was involved in arranging that one of France’s enemies
in the War of the Spanish Succession assume the throne. An ancient
feudal right was discovered in support of William III of England, which
he relinquished to his nephew Frederick I of Prussia. Frederick’s title was
officially recognised in November 1707.
Vattel himself, having studied law in Geneva under the famous Swiss
proponent of Pufendorfian philosophy, Jean-Jacques Burlamaqui, sought
employment in a diplomatic post. Unable to secure one in Prussia,
he was eventually employed by the First Minister of Saxony in 1743.
Vattel was promoted six years later to the position of Minister
Plenipotentiary. Whilst serving in this office, Saxony was invaded by
57
Emer de Vattel, The Law of Nations, eds. Béla Kapossy and Richard Whatmore
(Indianapolis, 2008), Preface, p. 12.
58
Vattel, Law of Nations, Preface, p. 13.
122 Part II
Prussia, for Frederick the Great considered that Saxony had formed an
alliance with his enemy, Maria Theresa of Austria. Vattel’s own sympa-
thies appear to have been with his native king rather than his employer.
Nevertheless, he was again promoted in 1759, this time to chief advisor
on foreign affairs to the government of Saxony, on the back of the praise
lavished on his Le droit des gens.59
These were the circumstances – internecine warfare amongst different
constituents of what was ostensibly one political community under one
emperor – that propelled Vattel to declare the death of the civitas
maxima. Vattel certainly recognised in Wolff’s abstract account of it what
was supposed to be a picture of the Holy Roman Empire. But it was to
Vattel’s mind a poor likeness of what now prevailed; if the Holy Roman
Empire had ever approximated Wolff’s archetype, it did so no longer.
‘This idea does not satisfy me’, wrote Vattel, ‘nor do I think the fiction of
such a republic either admissible in itself, or capable of affording suffi-
ciently solid grounds on which to build the rules of the universal law of
nations which shall necessarily claim the obedient acquiescence of sover-
eign states’.60 In Le droit des gens Vattel set out the law of nations as it
applied to legally equal and independent states. As Frederick G. Whelan
points out, ‘to assert the existence of a generic type of sovereign state
as the basic political unit in eighteenth-century Europe required a rather
daring act of the theoretical imagination’. Europe comprised large con-
solidated states like France, metropolitan centres of overseas empires
such as Britain, city-states in Italy and elsewhere, the Holy Roman
Empire and confederacies in Switzerland and the Netherlands, as well
as bundles of diverse territories united in the persons of dynastic rulers.
Neuchâtel itself was at once a county of the Holy Roman Empire, part
of the Swiss Confederacy, a territory in which movement was afoot to
weld it into what was gradually coming to be recognised as the modern
state of Prussia, but also an allegedly ‘sovereign’ entity in its own right.
For Vattel, overlapping authority could no longer be sustained in
European politics. The ‘abstract quality [of Le droit des gens] is so pro-
nounced as to make clear its (certainly intentional) normative import’.61
59
For these biographical details, see S. Beaulac, ‘Emer de Vattel and the externalization of
sovereignty’, Journal of the History of International Law, 5 (2003), pp. 237–292; and Béla
Kapossy and Richard Whatmore, ‘Introduction’, in Emer de Vattel, The Law of Nations,
eds. Béla Kapossy and Richard Whatmore (Indianapolis, 2008).
60
Vattel, Law of Nations, Preface, p. 14.
61
Frederick G. Whelan, ‘Vattel’s doctrine of the state’, History of Political Thought, 9
(1988), pp. 50–90, pp. 76–77. See also Tetsuya Toyoda, ‘La doctrine vatellienne de
l’égalité souveraine dans le contexte neuchâtelois’, Journal of the History of International
Law, 11 (2009), pp. 103–124.
However much he may have taken issue with the idea of a civitas
maxima, Vattel still considered Wolff the greatest writer on the law of
nations. Wolff had realised, wrote Vattel, that the law of nations was the
law of nature as it applied to ‘moral persons [who] necessarily differ, in
many respects, from the nature and essence of the physical individuals,
or men, of whom they are composed’.62 Here we find an endorsement of
Wolff’s Pufendorfian terminology and his use of it to correct the basis of
the Hobbesian theory of the law of nations. Wolff saw, argued Vattel, that
the law of nations, whilst inextricably connected to natural law, still
required a distinct treatment. And Wolff had further demonstrated that
nature established a necessary and voluntary law, and consequently a
necessary and voluntary law of nations. Vattel endorsed this position
entirely, in terms more explicit than those of Wolff himself: ‘The neces-
sary and the voluntary law of nations are therefore both established by
nature’.63 The necessary law of nations is ‘the internal, and consciential
law’, while the voluntary is that ‘which the general welfare and safety
oblige them to admit in their transactions with each other’.64 The two
categories of the Pufendorfian distinction, now in its Wolffian form,
between ‘perfect and imperfect duties’ are held to tally with the necessary
and voluntary laws respectively.65
Vattel followed Wolff in arguing that it is the perfect duty of all
individuals to work to perfect themselves.66 The clearest elaboration
of Vattel’s Wolffian perspective on perfection comes in his ‘Essay
on the Foundation of Natural Law’ of 1746. Sensual human beings,
62
Vattel, Law of Nations, Preface, p. 12; my emphasis. Skinner, in his ‘Genealogy’, p. 352,
sees Vattel as the most important theorist after Pufendorf to deploy the description of the
state as a moral person. Skinner, though, regards this as evidence of ‘the reception of the
fictional theory’ of Hobbes.
63
Vattel, Law of Nations, Preface, p. 17. C.f. Nicholas Greenwood Onuf, The Republican
Legacy in International Thought (Cambridge, 1998), p. 77.
64
Vattel, Law of Nations, Preface, pp. 16–17.
65
Ibid., Preface, p. 16. Isaac Nakhimovsky claims in his interpretation of Vattel that the
‘necessary law of nations consisted of the law of nature as strictly applied to states, while
the voluntary law of nations reflected the limitations of the analogy between states and
individuals’, in Isaac Nakhimovsky, ‘Vattel’s theory of the international order:
Commerce and the balance of power in the Law of Nations’, History of European Ideas,
33 (2007), pp. 147–173, at p. 160. This cannot be right, because it fails to recognise that
there is a voluntary as well as a necessary law of nature, according to Vattel, and that each
version of the law of nations maps onto one of these. Charles Covell, The Law of Nations
in Political Thought: A Critical Survey from Vitoria to Hegel (Basingstoke, 2009), p. 96,
makes the same error.
66
For Vattel as a critic of Rousseau for having denied perfectibility as an essential attribute
of human nature, see Theodore Christov, ‘Vattel’s Rousseau: Ius gentium and the natural
liberty of states’, in Freedom and the Construction of Europe, vol. 2, Free Persons and Free
States, eds. Quentin Skinner and Martin van Gelderen (Cambridge, 2013).
124 Part II
he maintained, are brought to fulfil their moral obligations by physical

and psychical motivations. There ‘is no will in the soul without
motivation; therefore to bring about the moral necessity to undertake a
particular action, some motivation must be linked to this action, which
you cannot separate from it’.67 No ‘inclination, desire, or affection’ is
more basic than self-love, and the motive attaching to self-love is, ‘for
sure, our well-being, our expediency, our advantage’.68 It therefore appears
that ‘this good, this expediency, is the first principle of all obligation, and in
particular of the obligation to keep the natural law’. It would be ‘absurd’,
he thought, to claim that an individual was ever under an obligation to
act against his ‘self-interest’.69 Self-love ‘causes us to desire or seek for
our happiness or the perfection of our condition’, and therefore it
appears that our first duty under natural law, the first principle of obliga-
tion, is to seek our own perfection.70 If this is God’s will – as it surely
must be, for the reasoning follows logically from consideration of our
nature and essence as the beings God has created – then there is nothing
at all dishonourable about self-interestedness:
When we have a correct understanding of self-interest; when we have constituted it
mainly in the perfection of the soul, a perfection that already defines our
happiness in itself, and which reconciles us with the good will of the Creator,
what danger is there in confusing the meaning of integrity with expediency?71
As a moral person, the primary perfect duty of a state under the
necessary law of nations, according to Vattel, was to strive for its own
‘perfection’. As Whelan has outlined,72 sometimes Vattel explained that
this duty meant that the state should promote the pursuit of self-
perfection by its individual members, ‘the individual finding in a well-
regulated society the most powerful succours to enable him to fulfil the
task which Nature imposes upon him in relation to himself, for becoming
better’.73 At other times, he suggested a more collective understanding of
civil perfection: if ‘the perfection of a thing consists, generally, in the
perfect agreement of all its constituent parts to tend to the same end’,
then if a group of men, united in civil society, ‘all conspire to attain the
67
Emer de Vattel, ‘Essay on the foundation of natural law and on the first principle of the
obligation men find themselves under to observe laws’, trans. T. J. Hochstrasser, in
Vattel, Law of Nations, p. 751.
68 69 70
71
Ibid., p. 762. Vattel also maintains that self-perfection is our first obligation under
natural law in his later and explicitly Wolffian Questions de droit naturel, et observations
sur le traité du droit de la nature de M. Le baron de Wolf (Berne, 1762), pp. 5–9.
72
Whelan, ‘Vattel’s doctrine’, pp. 83–84. 73
Vattel, Law of Nations, I, ii, 21, pp. 88–89.
end proposed in forming a civil society, the nation is perfect’.74 But more
often, Vattel argued that the perfection of the state, as a moral person,
consisted in the development of its own faculties. Here, I believe, we
come to the nub of where the Leibnizian tradition in which Vattel wrote,
like Wolff before him, just could not accommodate the assumptions that
had allowed Pufendorf to frame sovereignty, and the limits of sover-
eignty, in terms of faculty psychology. Recall that when Pufendorf
had written about the composite moral person of the state, he had been
careful to ascribe sovereignty per se to the will, and not to the faculty of
intellect:
So that the most proper Definition of a civil State seems to be this, “It is a
Compound Moral Person, whose Will, united and tied together by those
Covenants, is deemed the Will of all; to the End, that it may use and apply the
Strengths and Riches of private Persons towards maintaining the common Peace
and Security.”75
On this definition of the state, the intellect of the composite moral person
was not directly involved in sovereignty; its role was to ensure that acts of
sovereign will did not overstep the bounds of what a particular commu-
nity’s representatives regarded as reasonable. However, in the Leibnizian
tradition no self-sufficiency at all was assigned to the will; its acts always
followed a dictate of sufficient reason. As it had been for Leibniz, so it
was for Wolff, although he did not make this clear in his own writings on
the law of nations. Vattel does make it clear.76 There could be no
functional differentiation between reason and will, and thus to posit their
division in the state, as in Pufendorf’s model, was impossible. So Vattel’s
definition of the state began, in Pufendorfian fashion, by stating that as a
moral person it had an understanding and a will, but he did not then
divide these faculties off from one another:
A political society is a moral person inasmuch as it has an understanding and a
will of which it makes use for the conduct of its affairs, and is capable of
74
Ibid., I, ii, 14, p. 86. As Vattel put the point in an essay of 1746, the ‘perfection of a thing
consists generally in the harmony or agreement of everything within it in the direction of
a common goal’: Emer de Vattel, ‘Dissertation on this question: Can natural law bring
society to perfection without the assistance of political laws?’, trans. T. J. Hochstrasser,
in Vattel, Law of Nations, p. 773.
75
Pufendorf, Law of Nature, VII, ii, 13, p. 641/650.
76
In Vattel’s early defence of Leibnizian philosophy, Défense du système leibnitien contre les
objections et les imputations de Mr. de Crousaz (Leiden, 1741), pp. 248–250, he argued that
‘nothing exists, nor is anything done, without there being a sufficient reason for why it
exists, or for why it happens in such a way’. He explicitly took issue with the notion that
the faculty of the will was indifferent to its ends, and therefore had to determine itself,
‘Mr Leibniz having combated by an invincible argument this liberty of simple
indifference’.
126 Part II
obligations and rights. When therefore a people confer the sovereignty on any one
person, they invest him with their understanding and will, and make over to him
their obligations and rights, so far as relates to the administration of the state,
and to the exercise of the public authority.77
A people invest the sovereign with their will and understanding.
Pufendorf’s constitutional protections from overweening power vanish,
and the moral person of the state acquires in Vattel’s handling an
altogether more absolutist character. Vattel insists that the coming into
being of the sovereign does not entirely extinguish the moral personality
of the state as an entity that transcends territory, people and ruler. But it
is hard to see what the sovereign does not absorb. ‘The sovereign, or
conductor of the state, thus becoming the depositary of the obligations
and rights relative to government, in him is found the moral person, who,
without absolutely ceasing to exist in the nation, acts thenceforth only in
him and by him’.78 The scale of the absorption even outdoes that in
Hobbes’s theory of the fictional person of the state represented by the
artificial person of the sovereign.
What followed from this with respect to the state’s obligations? Pace
Wolff, for Vattel the perfect duties of the state were given by the inner law
of ‘conscience’. But Vattel put far greater explicit emphasis on the Leib-
nizian equation of freedom with doing the bidding of reason. It is true that
the sovereign, ‘clothed with the public authority, with everything which
constitutes the moral personality of the nation, of course becomes bound
by the obligations of that nation’.79 But a person’s ‘obligation is always
imperfect with respect to other people, while we possess the liberty of
judging how we are to act: and we retain that liberty on all occasions
where we ought to be free’. If it were possible for one sovereign to compel
another in virtue of some obligation, the former ‘would no longer enjoy
the freedom of determination respecting the conduct he is to pursue in
order to obey the dictates of his own conscience’.80 Therefore, the state in
fact possessed a perfect duty under the necessary law of nations to pursue
77
Vattel, Law of Nations, I, iv, 40, p. 99. David Boucher, The Limits of Ethics in International
Relations: Natural Law, Natural Rights, and Human Rights in Transition (Oxford, 2009),
p. 85, is one of the only secondary commentaries that I have been able to find on Vattel
that draws attention to the connection between moral personality and the faculties in
Vattel’s theory of the state. Ian Hunter, ‘The figure of man and the territorialisation of
justice in “Enlightenment” natural law: Pufendorf and Vattel’, Intellectual History Review,
23 (2013), pp. 289–307, at p. 298, argues that the ‘form of a corporate moral
personality . . . possessed of a collective intellect and will’ is ‘Vattel’s central political
concept’ – and curiously claims it has ‘no equivalent in Pufendorf’s political
architecture’.
78 79
Vattel, Law of Nations, I, iv, 40, p. 99. Ibid., I, iv, 40, p. 99.
80
Ibid., Preliminaries, §17, p. 75.
whatever it conscientiously considered as reasonable. Vattel stipulated

certain limitations on what could count as ‘reasonable’ in this context.
By the necessary law of nations the ruler of a state must protect all of the
obligations and rights subsisting within that state. Therefore, although a
private individual may be permitted by the necessary law of nature mag-
nanimously to forget injuries that he has suffered, ‘generosity’ on the part
of the ruler ‘is not be exerted at the expense of others’.81 He cannot
dispose of state territory, or the property of his subjects. This is the only
limit that Vattel placed on sovereigns in terms of their perfect duties
inasmuch as attending to those duties was to be directed inside states.
Insofar as the necessary law belongs to the state for the maintenance of the
rights internal to it, the necessary law must also belong to the state for its
defence. In this respect, Vattel maintained (although not on the basis of
sustained argument) that the necessary law of nations was embodied by
just war doctrine.82
Yet it is in his discussion of the laws of war that we begin to see
the consequences of Vattel’s shunning of the civitas maxima. He held
that war
cannot be just on both sides. One party claims a right; the other disputes it:– the
one complains of an injury, the other denies having done it. They may be
considered as two individuals disputing on the truth of a proposition; and it is
impossible that two contrary statements should be true at the same time.83
Wolff had argued, with the Holy Roman Empire in mind, that a rector was
the proper individual to act as the conscience of states in their external
relations. Without the civitas maxima, there is no rector. States ‘acknow-
ledge no superior judge’, so the justice of their respective causes cannot
be authoritatively weighed up.84 Equivalence of justice of cause, Vattel
thought, must thus be deemed in respect of combatants, so that ‘what-
ever is permitted to the one in virtue of the state of war, is also permitted
to the other’.85 A state has not thereby been exempted from the perfect
duties of the necessary law of nations. The principle of the equivalence of
causes ‘does not, to him who takes up arms in an unjust cause, give any
real right that is capable of justifying his conduct and acquitting his
conscience, but merely entitles him to the benefit of the external effect
of the law, and to impunity among mankind’.86 Vattel in effect had it,
then, that a sovereign’s conscience, in Reinhart Koselleck’s lapidary
81
Ibid., p. II, i, 17, p. 271.
82
C.f. S. Zurbuchen, ‘Vattel’s Law of Nations and just war theory’, History of European
Ideas, 35 (2009), pp. 408–417.
83 84
Vattel, Law of Nations, III, iii, 39, p. 489. Ibid., iiii, 38, p. 489.
85 86
Ibid., xii, 191, p. 591; emphasis relaxed. Ibid., 192, p. 592; emphasis relaxed.
128 Part II
phrase, ‘took its bearings not from moral law alone, but primarily from
given political circumstances’.87 Or as Vattel pithily put it, ‘Let us leave
the strictness of the necessary law of nations to the conscience of
sovereigns’.88
When he wrote about imperfect duties, or the voluntary law of nations,
Vattel was referring, like Wolff, to those duties incurred by contract, or
treaty. A state’s primary perfect duty was to perfect itself. This meaning
nothing more than the state having to attend to its own best interests, the
state’s perfect duty to itself must take precedence over its duties to
others. A political society cannot therefore bind itself indefinitely by a
treaty, for the obligations thus incurred might stand in the way of the
state’s perfectibility.
As a consequence of that liberty and independence, it exclusively belongs to each
nation to form her own judgment of what her conscience proscribes to her, – of
what she can or cannot do; – of what it is proper or improper for her to do; and of
course it rests solely with her to examine and determine whether she can perform
any office for another nation without neglecting the duty which she owes to
herself.89
In Ian Hunter’s perspicuous words, treaties, or the voluntary law of

nations, are ‘positive-law substitutes for a natural law that has been
suspended by each nation’s capacity to determine what is right for
itself’.90 All duties brought upon the moral person of the state by itself
in signing treaties are imperfect duties; they are obligations for the
common good, but they are not obligations of conscience. This is a clear
inversion of the meaning that Pufendorf attached to imperfect duties: for
Pufendorf, contracts laid down specifiable duties, and specifiable duties
are perfect ones.
It is easy to see why several contemporary scholars have detected in
Vattel’s writings ‘a hall-mark of what is considered to be the realist
approach to expatiate on the lower morality of states as compared with
that of individuals’.91 With Vattel, they argue, we get the mere ‘appear-
ance of a recognition of a legal order among nations’, when in fact by an
‘elegant manner of evasion’ he has invested states with such an inviolate
87
Reinhart Koselleck, Critique and Crisis: Enlightenment and the Pathogenesis of Modern
Society (Cambridge, MA, 1988), p. 45.
88 89
Vattel, Law of Nations, III, xii, 189, p. 590. Ibid., Preliminaries, §16, p. 74.
90
Ian Hunter, ‘Vattel’s Law of Nations: Diplomatic casuistry for the Protestant nation’,
Grotiana, 31 (2010), pp. 108–140, at p. 127. Hunter offers a superb analysis of how
Vattel’s seemingly abstract ‘moral person’ of the state serves the purposes of ‘a Protestant
agricultural-military republic’.
91
Hersch Lauterpacht, ‘The Grotian tradition in international law’, British Year Book of
International Law, 23 (1946), pp. 1–53, p. 28n3.
sovereignty that the principles and instruments necessary to furnish such

an order are counted out.92 Vattel apparently endorsed a ‘radical state-
libertarianism’,93 progeny of a ‘spiritually and psychologically dislocated’
vision of a world ‘which requires each of us to be two people – with one
set of moral judgements and social aspirations and legal expectations
within our national society, and another set . . . for everything that
happens beyond the frontiers of our national society’.94 But that is only
a part of the picture. As Andrew Hurrell notes, Vattel imputed to states
what were imputed to individuals in liberal theory: equal rights. From
this followed ‘the principle of sovereign equality, that all states possess
equal rights – or an equal capacity for rights’, which Vattel was ‘the first
writer to elucidate clearly’.95 He therefore envisaged ‘a structure of
coexistence, built on the mutual recognition of states as independent
and legally equal members of society’.96 Vattel did indeed consider that
there existed a ‘great society established by nature between all nations’.97
This is because all states had a common interest in order. Sociability was
not the first principle of the law of nature, but given that self-perfection
dictated that men live peaceably, it was the very ‘next principle’ of natural
law.98 Similarly for states, their pursuit of self-interest meant that they
should cooperate to ensure than none of them came to be a menace to
the others, to which end a balance of power had emerged in Europe,
an arrangement of affairs such that ‘no power should be superior to the
others’. The activities that went on in order to maintain this balance – the
‘continual attention of sovereigns to every occurrence, the constant
residence of ministers, and the perpetual negotiations’ – did ‘make of
modern Europe a kind of republic’, if not the ‘great republic’ imagined
by Wolff.99 As Christov has recognised, when Vattel described the state
as a person, he was tapping into one of the historical usages of that term,
namely, that concerning speaking and acting publicly: ‘States are moral
persons because they are fundamentally communicative’.100 Communi-
cation between states and their agreeing to engage in various
92
Hersch Lauterpacht, The Function of Law in the International Community (Oxford, 1933),
p. 7.
93
Andrew Linklater, Men and Citizens in the Theory of International Relations, 2nd edn.
(Basingstoke, 1990), pp. 87 and 90.
94
Philip Allott, The Health of Nations: Society and Law Beyond the State (Cambridge, 2002),
p. 418.
95
Andrew Hurrell, ‘Vattel: Pluralism and its limits’, in Classical Theories of International
Relations, eds. Ian Clark and Iver B. Neumann (Basingstoke, 1996), p. 239.
96 97
Ibid., p. 233. Vattel, Law of Nations, Preliminaries, §12, p. 73.
98
Vattel, ‘Foundation of natural law’, p. 754.
99
Vattel, Law of Nations, III, iii, 47, p. 496. 100
Christov, ‘Vattel’s Rousseau’, p. 175.
130 Part II
undertakings for the common good would help to build and consolidate
the society that they together inhabited.
With Wolff, then, the concept of the moral person of the state was
employed in a decisive role in an argument for a society of states subject
to a common sovereignty at the point at which state actions begin to exert
some impact on other states. By contrast, in Vattel the concept underlay
a conception of states as being capable of agreeing on certain common
expediencies for minimal purposes of common order but certainly not
for the enforcement of law.101 In Kant’s writings, the moral person of the
state occupied a middle ground between these two positions.
III. Kant
Kant was the next major writer to describe the state as a moral person,
and like Wolff and Vattel before him he did so when dealing with the
subject of international relations or the right of nations.102 In Perpetual
Peace (1795), he wrote that the state, like ‘a trunk . . . has its own roots;
and to annex it to another state as a graft is to do away with its existence
as a moral person and to make a moral person into a thing’.103 In Part I of
The Metaphysics of Morals (1797) on the Doctrine of Right, Kant again
claimed that ‘a state, as a moral person, is considered as living in relation
to another state in a condition of natural freedom’.104 For all the interest
in Kant’s theories of politics and international relations, the Pufendorfian
locution according to which he characterised the state has received very
101
This locution is indebted to Hedley Bull’s famous definition of pluralism in
international relations theory, in his ‘The Grotian conception of international society’,
in Diplomatic Investigations: Essays in the Theory of International Politics, eds. Herbert
Butterfield and Martin Wight (London, 1966), p. 69.
102
I have amplified the historical account I give here of Kant on the moral person of the
state into a critique of accounts of Kant’s international relations theory in the
contemporary secondary literature in Ben Holland, ‘The Perpetual Peace Puzzle:
Kant on persons and states’, Philosophy and Social Criticism (forthcoming).
103
Immanuel Kant, ‘Toward perpetual peace: A philosophical project’, in Immanuel Kant,
Practical Philosophy, trans./ed. Mary J. Gregor (Cambridge, 1996), vol. VIII, p. 344.
I am following the convention in Anglophone Kant scholarship of providing references
to the Prussian Academy edition of Kant’s works, by volume and page number; these
are included in the translations in Cambridge University Press’s The Cambridge Edition
of the Works of Immanuel Kant, which I have used.
104
Immanuel Kant, ‘The metaphysics of morals’, in Kant, Practical Philosophy, VI, p. 343.
Kant anticipated the locution in his Idea for a Universal History with a Cosmopolitan Aim
of 1784: ‘through progress in enlightenment, a beginning is made toward the
foundation of a mode of thought which can with time transform the rude natural
predisposition to make moral distinctions into determinate practical principles and
hence transform a pathologically compelled agreement to form a society finally into a
moral whole’. Immanuel Kant, Anthropology, History and Education, eds. Günter Zöller
and Robert B. Louden (Cambridge, 2007), vol. VIII, p. 21.
little attention.105 And yet it is crucial, I argue, to his characterisation of

the proper international politics that should subsist between states.106
It is first important to note that whatever evocation of the composite
polity that we found in Wolff when he wrote of states as moral persons is
not be found in Kant. Wolff was the last great champion of the Holy
Roman Empire as a kind of sovereign federation. After the Peace of
Hubertusburg brought an end to the Seven Years’ War in 1763, the
international situation in Europe appeared in a qualitatively new light.
France emerged from the Peace considerably weakened. She agreed to
major territorial losses in North America and India, and concluded a
number of exchange agreements with neighbouring Prussia in order to
rationalise the frontier and reduce the number of enclaves on either side,
particularly in the Rhineland. France also effectively withdrew from her
role (along with Sweden) as international guarantor of the Peace of
Westphalia. At the same time, Russia emerged from the Seven Years’
War as a great power. The European system was no longer characterised
by the hostility of the major powers of Britain, Austria and the Nether-
lands to France, but now five great powers (France, Britain, Austria,
Prussia and Russia) coexisted in a system that some observers came to
call, following Vattel, a ‘balance of power’.107 Some of them, such as
Gabriel Bonnot de Mably and Rousseau, argued that in such a context
the residual power of the Empire itself, although now dwarfed by that of
Austria and Prussia, might be brought to bear in helping to maintain this
balance.108 The Reich was now one power among many, even in the
German lands. In this new context – which was Kant’s context – Vattel’s
argument had well and truly been borne out: that the civitas maxima, as
105
Two important exceptions to this tendency are B. Sharon Byrd, ‘The state as a “moral
person”’, in Kant and Law, eds. B. Sharon Byrd and Joachim Hruschka (Aldershot,
2006); and Katrin Flikschuh, ‘Kant’s sovereignty dilemma: A contemporary analysis’,
Journal of Political Philosophy, 18 (2010), pp. 469–493.
106
There are two further references in Kant to the state as being a moral person. These are
in the notes written on his own copy of the first part of Gottfried Achenwall’s Natural
Law (1763), arrayed at AA XIX, pp. 512 and 544. Achenwall’s textbook developed an
account of natural law inspired by Pufendorf. See Merio Scattola, ‘Before and after
natural law: Models of natural law in ancient and modern times’, in Early Modern
Natural Law: Contexts and Strategies in the Early Enlightenment, eds. T. J. Hochstrasser
and P. Schröder (Dordrecht, 2003), pp. 12–13. Kant may, therefore, have found the
term persona moralis in Achenwall’s work. But the notes themselves are nothing but
telegraphic summaries of Achenwall, and they tell us nothing about Kant’s own
understanding of the term. Achenwall will be discussed again briefly in Chapter 5.
107
Whaley, Germany, vol. 2, p. 394.
108
The best overview of the debates on ‘perpetual peace’ in this new systemic context is
Isaac Nakhimovsky, The Closed Commercial State: Perpetual Peace and Commercial Society
from Rousseau to Fichte (Princeton, 2011).
132 Part II
describing the form of a European international system with the

empire at its heart, was a redundant idea.
When Kant wrote about the moral person of the state, then, it was
always going to be put to do different work than it had done in the
writings of Pufendorf and Wolff – and it transpired that it would do
different work than it had done in the writings of Vattel. Joachim
Hruschka has pointed out that Kant took the category of moral person-
ality from Pufendorf.109 What he did not point out was that, once Kant
had had his way with it, it had become something quite different. Kant’s
whole moral psychology diverged completely from that of Pufendorf,
and he put the concept of moral personality to wholly different use. As
we saw in Chapter 2, Pufendorf argued that a ‘Moral Action’ is any
action that we can properly impute to a free agent, so that we may
attribute responsibility to the agent who performed it and hold that agent
to account for it.110 Moral actions can thus be attributed to moral
persons, in the course of their performance of some office, but just as
much to natural persons, acting freely but not in any representative
capacity. A moral action, for Pufendorf, was moreover any action for
which a person – moral or natural – could own up, whether or not that
action had any ‘moral’ (in the sense of ‘ethical’) colouration: if
I consciously scratch my back to relieve an itch, it counts as a moral
action in Pufendorf’s terms, even though that action is ‘morally’ indiffer-
ent (who cares?) and I am representing nobody but myself in doing so.
Kant’s distinction between the generic category of person and the spe-
cific category of moral person seems, on the face of it, seems to be
simpler. A person in general is someone to whom we may impute action
based at least in some part on ‘an inner determining ground’ that ‘lies
within the subject’s reason’.111 In other words, if we may impute actions
to an entity because we attribute to that entity some power of free will,
then that entity is a person. A moral person is someone or something to
which we impute not only actions but also ‘deeds’, or those actions by
which we judge the actor capable of the power to choose between right
and wrong actions. In Kant’s view, ‘imputation in the moral sense is the
judgment by which someone is regarded as the author (libera causa) [free
cause] of an action’ understood as a ‘deed insofar as it comes under
obligatory [moral] laws’, whereas general personhood is about the imput-
ation of actions which might well be morally indifferent.112 Moral
109
Joachim Hruschka, ‘Universalization and related principles’, Archiv für Rechts- und
Sozialphilosophie, 78 (1992), pp. 289–300, at p. 300n53.
110
Pufendorf, Law of Nature, I, v, 3, p. 35/57.
111
Kant, ‘Metaphysics of morals’, VI, p. 213. 112
Ibid., VI, p. 227 and p. 223.
personality, for Kant, ‘is therefore nothing other than the freedom of a
rational being under moral laws’, and the actions of a moral person
are such that ‘the agent is regarded as the author of its effect, and this,
together with the action itself, can be imputed to him, if one is previously
acquainted with the law by virtue of which an obligation rests on
these’.113
Pufendorf says that natural personhood means that some individual
substance of a rational nature is free by virtue of a particular configur-
ation of intellect and will, while moral personhood also involves that
some office be subtended by such substance or substances in such a
manner that we can also attribute freedom to it by virtue of its consti-
tutional semblance to the facultative configuration of a natural person.
Kant says that persons in general are beings to which we attribute
ownership of their actions on the basis of some exercise of reason and
will, while moral personhood involves that we also recognise in this
being the capacity freely to perform deeds whose obligation falls under
the law of right and wrong. Clearly, then, Kant’s moral persons are not
the same as Pufendorf’s. Kant’s term seems simpler because the moral
modifies action in accordance with common usage, namely, as signifying
right and wrong. But we need to pursue Kant’s characterisation of moral
personhood a little further, into his account of free will and morality,
in order to understand his theory of the moral personhood of states.
Suárez and Pufendorf both contrasted the faculties of intellect and will,
and argued that the will’s indifference to its causes as cognised by the
intellect saved the free agent from being determined to one effect by its
causes. For Kant, by contrast, will was not a faculty separate from
intellect but ‘a kind of causality of living beings’ that they possessed to
the extent that they were in command of reason.114 This sounds rather
Leibnizian; but he expanded the point in a different direction.115 Will,
for him, was not so much a power to intervene in the causal chain, as it
had been for Pufendorf, but ‘a causality in accordance with immutable
laws but of a special kind’.116 Will does not redirect a physical causal
process but acts to bring the rational agent under the direction of causal
laws of a different type. The best starting point for understanding what
113
Ibid., p. 223.
114
Immanuel Kant, ‘Groundwork of The Metaphysics of Morals’, in Kant, Practical
Philosophy, IV, p. 446.
115
For Kant’s relationship to Leibnizian philosophy, and especially Wolff’s version of it:
Anja Jeuernig, ‘Kant’s critique of the Leibnizian philosophy: Contra the Leibnizians,
but pro Leibniz’, in Kant and the Early Moderns, eds. Daniel Garber and Beatrice
Longuenesse (Princeton, 2008).
116
Kant, ‘Groundwork’, IV, p. 446.
134 Part II
Kant meant is his essay of 1786, ‘What Does it Mean to Orient Oneself
in Thinking?’ Kant there considered the activity of thinking, and asked
when it was appropriate to designate it as free. His answer: ‘Freedom in
thinking signifies the subjection of reason to no laws except those which it
gives itself; and its opposite is the maxim of a lawless use of reason’.117
When a person thinks, he may do so in accordance with laws of nature
and therefore not freely: when a person’s thoughts are impassioned, for
instance, his thinking is in line with natural causality, because desires can
be explained in terms of physical causes. But he may also think by means
of what Kant called the lawless use of reason. By means of his will, the
free agent may think without that thinking being determined by natural
causes. However, Kant asserted that such lawless thinking would be
contingent on specific and variable circumstances, including those that
are intimately a part of the agent such as his passions, and thus this
person would be led back to being determined by alien determinations
as he came under the sway of other people and institutions that played on
the ungoverned force of his passions.
The natural consequence is that if reason will not subject itself to laws it gives
itself, it has to bow under the yoke of laws given by another; for without any law,
nothing – not even nonsense – can play its game for long. Thus the unavoidable
consequence of declared lawlessness in thinking (of a liberation from the
limitations of reason) is that the freedom to think will ultimately be forfeited.118
A person will not be free, then, unless he thinks on the basis of a law
that his reason has given to itself. What does this mean? If reason is not
going to lead to servitude, then reason cannot hinge on what is contin-
gent and variable. If reason is going to be used so that the person using it
be free, then reason must itself adopt a strategy of reasoning only on the
basis of maxims on which others – whose characters and circumstances
differ – could also agree to reason.119 To reason ‘means no more than to
ask oneself, whenever one is supposed to assume something, whether one
could find it feasible to make the ground or the rule on which one
assumes into a universal principle for the use of reason’, for oneself and
for all other persons.120 Only such a principle can ensure that thinking is
117
Immanuel Kant, ‘What does it mean to orient oneself in thinking?’, in Immanuel Kant,
Religion and Rational Theology, trans./ed. Allen W. Wood and George Di Giovanni
(Cambridge, 1996), VIII, p. 145.
118
Ibid.
119
On the public aspects of reason in Kant, see especially Onora O’Neill, Constructions of
Reason: Explorations of Kant’s Practical Philosophy (Cambridge, 1990), especially
pp. 28–50. My understanding of Kant on reason and autonomy is indebted to
O’Neill’s book.
120
Kant, ‘Orient oneself’, VIII, p. 146n.
neither contingent on a person’s own particular circumstances or even

the particular proclivities of their character. And thinking on the basis of
a universal rule is the same in Kant’s terms as thinking in line with law.
Thinking freely means that we must impose lawlikeness on our thinking,
so that we must reason on the basis of universalisable maxims.
In the ‘Orientation’ essay, the public character of the principles of
reason was emphasised, but the kind of freedom that the essay addressed
was the freedom of thought. Yet Kant’s principle of autonomy –
‘to choose only in such a way that the maxims of your choice are also
included as universal law in the same volition’ – became the principle not
only for thinking but also for acting, and specifically for acting morally.
Kant indeed called all the universal laws of reason that applied to indi-
viduals in respect of their interactions ‘moral laws’. Moral laws could
apply, he argued, in two different ways. First, when the moral laws are
themselves ‘the determining grounds of actions’, then we call the moral
laws ‘ethical laws’.121 Ethics relates primarily to the freedom of agents
in the sense described above, namely, their capacity to think and act in
accordance with the principles of pure practical reason, but, in particular,
ethical laws comprehend the things that human beings may do to them-
selves and to one another, directly or indirectly, that are relevant to
questions of morality. It is in the realm of ethics that moral persons, in
Kant’s sense, step into the picture, for the actions that we are now
concerned with are actions bearing on good and evil. When Kant came
to probe the topic of the morality appropriate to moral persons, his
famous first formulation of the categorical imperative barely registers a
change from the principle of autonomy: ‘act only in accordance with that
maxim through which you can at the same time will that it become a
universal law’, although the law here was explicitly a moral one.122
The categorical imperative is the fundamental principle of morality of
the ethical order governed by the principle of autonomy as the relevant
law of internal freedom. The fact that it is an imperative is important. It is
a command addressing the problem of moral law for individuals who are
finitely autonomous and rational, and who might oppose the principle of
their own legislative activity because of their various sensuous, all-too-
human, inclinations.123 But it is not an alien command; it lays upon
people a duty which reason and therefore autonomy dictates, in order to
respect the autonomy of all. It is in fact Kant’s claim that a ‘finite rational
121
Kant, ‘Metaphysics of morals’, VI, p. 230.
122
Kant, ‘Groundwork’, IV, p. 421; emphasis relaxed.
123
Nancy Sherman, Making a Necessity of Virtue: Aristotle and Kant on Virtue (Cambridge,
1997), p. 130.
136 Part II
being, whose will is inevitably affected by, though not inevitably deter-
mined by, sensuous impulses, experiences objectively valid principles as
imperatives or commands of reason’.124
Reason is concerned with principles, according to Kant. The first
formulation of the categorical imperative, given by reason, is a principle
of morality governed by a principle of autonomy. Moral persons, however,
are not only reasonable but also rational. By this, Kant meant that when
moral persons act, they act not only on principle but also for ends. Reason
would thus have to discover a formulation of the categorical imperative
appropriate to individuals who act for ends and not only on the basis of
principles. As with the first formulation, this would have to be universa-
lisable in order to count as a moral law. Kant’s second formulation of the
categorical imperative thus stated that when human beings act they ought
always to act so as to treat all of humanity as an end and not as a mere
means to an individual’s own end: ‘So act that you use humanity,
whether in your own person or the person of any other, always as
the same time as an end, never merely as a means’.125 This was the
equivalent of the first formulation of the Categorical Imperative for
persons who act for the sake of an end when they act at all, supplying a
universal rule for reason inasmuch as this attended to the ends of actions
enmeshed in morals.
The other part of Kant’s two-sided conception of the laws of freedom
dealt with what he called the ‘juridical’ aspects of freedom. The major
difference was that while ethical laws were the ‘determining grounds’ of
action in the ethical sphere, ‘juridical laws’ were ‘directed merely to
external actions’ or the ‘external use of choice’ and concerned only the
‘conformity to law’ of these actions and choices.126 When we deem one
another as capable of owning actions and deeds, said Kant, and thus see
one other as moral persons, we also judge one another as capable of
external freedom, or the ability to make choices according with our
desires. Kant claimed that in virtue of each person’s humanity each has
an ‘innate right’ to make such choices and that other’s peoples choices
should not interfere with or take away this right.127 Kant then appealed to
the Scholastic distinction between subjective ‘rights’ (which we possess)
and objective ‘right’ (which posits the proper order of relationships
between individuals). The concept of right, he wrote, guides the ‘form’
of the external relations between individuals with respect to their choices:
124
Katrin Flikschuh, Kant and Modern Political Philosophy (Cambridge, 2000), p. 87.
125
Kant, ‘Groundwork’, IV, p. 429; emphasis relaxed.
126
Ibid., p. 237.
The concept of right . . . has to do, first, only with the external and indeed
practical relation of one person to another, insofar as their actions, as deeds,
can have (direct or indirect) influence on each other. But, second, it does not
signify the relation of one’s choice to the mere wish (hence, also to the mere need)
of the other . . . but only a relation to the other’s choice. Third, in this reciprocal
relation of choice no account at all is taken of the matter of choice, that is, of the
end each has in mind with the object he wants.128
The concept of right, then, abstracts from agents’ intentions with respect
to their choices and from the principles of their actions.
However, Kant was clear that the external use of choice was still
subject to the moral laws. He thus formulated a universal principle of
right that resembled the categorical imperative except that it governed
the external use of choice of individuals rather than their ethical freedom:
Any action is right if it can coexist with everyone’s freedom in accordance with a
universal law, or if on its maxim the freedom of choice of each can coexist with
everyone’s freedom in accordance with a universal law.129
Or more objectively: ‘Right is therefore the sum of the conditions under

which the choice of one can be united with the choice of another in
accordance with a universal law of freedom’.130 The ‘maxim of the
freedom of choice’ here was not synonymous with the maxim or principle
respecting the autonomy of reason in the categorical imperative. Rather,
the universal principle of right demanded that an agent’s execution of
their maxims did not trespass on the conditions of external choice of
another person.
Kant then introduced an analogy to the causal laws of nature: ‘the
freedom of everyone under the principle of universal freedom’ can be
understood ‘by analogy with presenting the possibility of bodies moving
freely under the law of the equality of action and reaction’.131 Rights-
relations pertain to embodied persons coexisting in empirical space on
the enclosed surface of the earth. The concept of right designates a
spatially bounded system. The law of the equality of action and
reaction in the physical realm, Kant argued, might also be called a ‘law
of reciprocal coercion’, and so the same might be said of the form of
right.132 Reciprocal coercion, in the moral realm, means that the univer-
sal principle of right can be enforced coercively but legitimately. When
people coexist together in a spatially circumscribed world, Kant argued,
each person’s exercise of their capacity of external freedom inevitably
affects everybody else’s exercise of that capacity. After all, having external
freedom must mean having the means with which to set and pursue our
128 129 130 131 132

Ibid., p. 230. Ibid. Ibid. Ibid., p. 232. Ibid.
138 Part II
ends, and these will involve at least in part external objects of our choice
that we ‘have the physical power to use’, objects over which others might
also claim rights.133 The universal principle of right expresses a criterion
for the compossible exercise of the external use of choice of each. But
before individuals have left the state of nature nobody can enforce this
principle; given the ‘innate equality of each’, each person lacks any
authority by which to prescribe coercive law for everybody else.
A ‘unilateral will cannot serve as a coercive law for everyone’, because
a private will would be contingent on one person’s judgment alone, and
would not put that private will under the law in the same way as all
others.134 Only ‘a will putting everyone under obligation, hence only a
collective general (common) and powerful will’ is legitimate for imposing
a universal coercive law that can uphold the universal principle of
right.135 This is why the state is necessary: in entering into a civil condi-
tion, coexisting and legitimate rights claims against one another can be
validly managed by a rightful authority whose public will can pronounce
justifiable coercive law.
The laws of freedom or morals were thus to be policed in different
ways, according to Kant. Ethical freedom was to be self-enforced by
autonomous reason in line with the stipulations of the categorical
imperative. External freedom was be protected by a public authority in
line with the universal principle of right. The final incentive for the
proper exercise of ethical aspects of freedom, for real persons with their
various sensibilities, was the idea of duty, while the final incentive for the
proper exercise of juridical aspects of freedom appealed to baser motives:
That lawgiving which makes an action a duty and also makes this duty the
incentive is ethical. But that lawgiving which does not include the incentive of
duty in the law and so admits an incentive other than the idea of duty is juridical.
It is clear that in the latter case this incentive which is something other than the
idea of duty must be drawn from pathological determining grounds of choice,
inclinations and aversions, and among these, from aversions; for it is lawgiving,
which constrains, not an allurement, which invites.136
We are now in a position to address Kant’s discussion of international

relations, in which respect his description of the state as a moral person is
relevant. Kant discussed international relations under the concept of
133
Ibid., p. 246. See Helga Varden, ‘Kant’s non-voluntarist conception of political
obligation: Why justice is impossible in the state of nature’, Kantian Review, 13
(2008), pp. 1–45.
134
Ibid.
136
Ibid., pp. 218–219. On this aspect of Kant’s thought, see especially Howard Williams,
Kant’s Critique of Hobbes: Sovereignty and Cosmopolitanism (Cardiff, 2003).
right, and more specifically of public right, nicely summarised by Mary

Gregor as ‘the sum of laws that need to be publicised in order to produce
a rightful condition, one in which individuals, nations and states can
enjoy their rights’.137 States come into being when individuals leave the
state of nature in order that their external freedom be protected by an
authority that upholds the universal principle of right. But, of course, this
universal principle is not thereby upheld universally. For states them-
selves ‘can be appraised as individuals, who in their natural condition
(that is, in their independence from external laws) already wrong
one another by being near one another’.138 This is the now-familiar
Hobbesian scenario of the international state of nature. States, Kant
maintained, together inhabit the enclosed spherical space of the earth.
As specified by the physical law of equality of action and reaction, when
one state makes use of its legitimate external freedom, it impacts on the
others; and the ‘community of nations of the earth has now gone so far
that a violation of right on one place of the earth is felt in all’.139 Kant
went further still: if rights claims between states cannot properly be
adjudicated and enforced, then the capacity of states to sustain the
universal principle of right at the domestic level is also curtailed, for
‘if the principle of outer freedom limited by law is lacking in any’ possible
form of rightful condition, then the ‘framework’ of the others ‘is unavoid-
ably undermined and must finally collapse’.140
So what did Kant advocate in order that states could be removed from
this lawless condition? Most commentators, especially those of a cosmo-
politan bent, have considered Kant’s response as botched. The universal
principle of right demands, according to Kant, that each state, ‘for the
sake of its security, can and ought to require the others to enter with it
into a constitution similar to a civil constitution, in which each can be
assured of its right’.141 In other words, Kant ought to have made Wolff’s
civitas maxima the model of his state of states, where one legitimate
authority decides on aspects of right bearing upon inter-state relations.
In accordance with reason there is only one way that states in relation with one
another can leave the lawless condition, which involves nothing but war; it is that,
137
Mary J. Gregor, ‘Kant’s approach to constitutionalism’, in Constitutionalism: The
Philosophical Dimension, ed. Alan S. Rosenbaum (New York, 1988), p. 71.
138
Kant, ‘Perpetual peace’, VIII, p. 354.
139
Ibid., p. 360. For an excellent analysis of the place of this passage in terms of Kant’s
philosophy of community, see Brian Milstein, ‘Kantian cosmopolitanism beyond
Perpetual Peace: Commercium, critique, and the cosmopolitan problematic’, European
Journal of Philosophy, 21 (2010), pp. 118–143.
140
141
Kant, ‘Perpetual Peace’, VIII, p. 354.
140 Part II
like individual human beings, they give up their savage (lawless) freedom,
accommodate themselves to public coercive laws, and so form an (always
growing) state of nations (civitas gentium) that would finally encompass all the
nations of the earth.142
Instead, however, he settled for second best:
But, in accordance with their idea of the right of nations, they do not at all want
this, thus rejecting in hypothesi what is correct in thesi; so (if all is not to be lost) in
place of the positive idea of a world republic only the negative surrogate of a league
that averts war, endures, and always expands can hold back the stream of hostile
inclinations that shies away from right, though with the constant danger of its
breaking out.143
Kant put it more positively in an essay of 1793, when he encouraged
states to enter into a ‘rightful condition of federation in accordance with a
commonly agreed upon right of nations’.144 But this was still the idea of a
league of states self-legislating whatever laws of international right they
considered ought to obtain between them, but necessarily doing so
without the prospect of the united will of the federation having any
coercive authority. So Kant supported something between Wolff’s max-
imal association of states (abstracting away from his own model of the
Holy Roman Empire) and Vattel’s minimal society of states as a solution
to the Hobbesian or Pufendorfian perpetual condition of war between
states – but he did so, it seems, halfheartedly.
It is important not to mistake Kant’s negative surrogate of a world
republic as either a capitulation to realism, on the one hand, or mere
handwringing, on the other. States are importantly different, he thought,
to individual human beings in the state of nature. This is, again, a now-
familiar (since Wolff) strategy to abate the Hobbesian international state
of nature. The difference between individuals and states, according to
Kant, is that whereas individuals can be compelled to enter into the state
as the necessary condition for enforcing their rights claims against each
other, sovereign states cannot be so compelled, for the state by definition
‘involves the relation of a superior (legislating) to an inferior (obeying)’,
and it would amount to a contradiction if a state were to occupy the
position of superior and inferior at the same time.145
What holds in accordance with natural right for human beings in a lawless
condition, ‘they ought to leave this condition’, cannot hold for states in
142 143
Ibid., p. 357. Ibid.
144
Immanuel Kant, ‘On the common saying: That may be correct in theory, but it is of no
use in practice’, in Kant, Practical Philosophy, VIII, p. 311.
145
Kant, ‘Perpetual peace’, VIII, p. 354.
accordance with the right of nations (since, as states, they already have a rightful
constitution internally and have hence outgrown the constraint of others to bring
them under a more extended law-governed constitution in accordance with their
concepts of right).146
As Katrin Flikschuh puts it, given ‘their moral status, states ought to
submit under a supra-state public authority’, but given ‘the grounds of
their moral status they cannot do so, but must treat themselves and one
another as juridically sovereign agents’.147 Nonetheless, states are still
moral persons, according to Kant, and this is critical for understanding
the rest of his argument. We saw above that Kant intended moral person-
hood to denote that a person – one to whom we could attribute owner-
ship of any actions at all – also owns those of its actions that fall under
moral laws, including ethical laws as much as juridical ones. By calling
the state a moral person, I would submit, Kant explicitly inscribed it
within the ambit of the ethical as much as the juridical. As Sharon Byrd
has recognised, when Kant described the state as a moral person, it was
precisely so as ‘to indicate that a state has perfect and imperfect [ethical]
duties to itself and to other states corresponding to [his] portrayal of
these duties for the individual’.148 Pufendorf’s ethical terminology
reappears.
In the second part of The Metaphysics of Morals, his Doctrine of Virtue,
Kant adopts the Pufendorfian distinction between perfect and imperfect
duties that we have seen was so important to Wolff’s and Vattel’s con-
ceptions of the moral personality of the state. Just as they had modified
Pufendorf’s original distinction, so did Kant; but the basis of his distinc-
tion was also different from theirs. He explained that perfect duties in
principle admit of being perfectly attained, whereas imperfect duties
enjoin ends which are only approachable and which we will never abso-
lutely be able to attain.149 We saw earlier that Wolff and Vattel both
made self-perfection into a perfect duty of the individual to himself, and
extrapolated this conclusion to the level of the moral person of the state.
For Wolff this meant that a rector was required by natural reason to bring
to an end the problems to which such a duty would give rise from the
standpoint of international relations. For Vattel, by contrast, the funda-
mental duty of a state to perfect itself brooked no compromise, and its
potentially dangerous consequences could be tempered solely by a prag-
matic realisation that states only stood a chance of perfecting themselves
if they saw themselves as inhabiting a kind of society. Kant concluded
otherwise. For him, the fundamental imperfect duty to oneself was the
146
Ibid., pp. 355–356. 147
Flikschuh, ‘Kant’s sovereignty dilemma’, p. 481.
148
Byrd, ‘Moral person’, p. 379. 149
Kant, ‘Metaphysics of morals’, VI, pp. 390–392.
142 Part II
cultivation of one’s own perfection in order to facilitate the pursuit of the

ends that one set oneself.150 Such efforts must necessarily be endless as
self-perfection can never be attained, and therefore the duty to pursue it
must be imperfect. Likewise, the moral person of the state has an imper-
fect duty to pursue its own self-perfection. And states will stand a greater
chance of perfecting themselves if war is eradicated. Thus,
the political principles directed towards perpetual peace, of entering into such
alliances of states, which serve for continual approximation to it, are not
unachievable. Instead, since continual approximation to it is a task based on
duty . . . this can certainly be achieved.151
Kant therefore needed the notion of the state as a moral person in order
that the state could be said to have a capacity for autonomy and thus to be
an actor in the ethical as well as the juridical domain, for the duty to
pursue perfection was an ethical duty rather than a legal one. Thus
situated, the state was figured as an individual with the capacity to
respond to the demands of morality. The moral person of the state
was, therefore, ethically obliged to enter into a non-sovereign association
of states and to try to manage its relations with the others according to
certain principles, in the name of which the state had thereby responded
to the ethical requirements for perfectibility and benevolence to others.
Kant found a middle way between Wolff and Vattel, by means of the
same Pufendorfian concept of the moral person of the state.
***
The moral person of the state did different work for each of the three
theorists discussed in this chapter. Wolff used Pufendorf’s characterisa-
tion of the state in order to argue that states are different in kind from
natural persons, and thus that the law of nations could not be precisely
the same thing as the law of nature for states abandoned to the state of
nature. He thus used Pufendorf’s theory of moral persons as being
analogous but not identical to natural persons against Hobbes and
against Pufendorf himself. Vattel, writing in a Leibnizian tradition that
could not accommodate a functional separation between intellect and
will, collapsed both in his vision of the state. The sovereign represented
the intellect and will of the moral person of the state. Kant shared with
Pufendorf’s moral theology the view that action-attribution defines
autonomous persons, and thereby, when he described the state as a
150
See Paul Guyer, Kant’s System of Nature and Freedom: Selected Essays (Oxford, 2005),
pp. 243–274.
151
moral person, placed it in the ethical as much as the juridical domain.

Wolff arrived at an understanding of states as being subject to moral laws
that are conventional; Vattel of states as being subject to natural laws of
self-protection; and Kant of states as being subject to universal laws
of morality incumbent on any agent in possession of reason. By the end
of the eighteenth century, the moral person of the state was an essential
concept in the scholarly field of international law and in international
ethics, helping to define the various and sometimes contrasting trajector-
ies in which its practitioners would take it.
I have stressed the major differences between the arguments that these
three thinkers wrought with the aid of the concept of the moral person of
the state, but there are common threads. One of these that runs through
these appropriations of the concept of the moral personhood of the state
was that the state was its own kind of person, and therefore the question
of the kinds of rights and duties incumbent on the state was not one to
which the answer could simply be discovered in works in the genre of
natural law. In their distinctive ways, Wolff, Vattel and Kant wrote about
the legal and ethical implications for states of their being the kind of
persons that they were. Another is the metaphysical and normative
centrality of the idea of perfection, which orientated, in one way or
another, each of these theories of the moral person of the state. Jens
Bartelson has eloquently expressed a similar point, signalling the signifi-
cance of this parallel, particularly in respect of its spatial and temporal
dimensions. ‘Pufendorf had accounted for the moral person of the state
and its capacity to act and to incur obligations and rights by looking
inwards into the state and backwards to its conjectural origins’, whereas
the writers examined in this chapter instead ‘identified the state as a locus
of autonomous action by situating it on an international outside and then
projecting the conditions of its perfection forwards in time’. In their
hands, the state took on a ‘life of its own’, and the strong teleological
system in which Wolff first appropriated the concept is critical to
understanding why.152 This is a part of the story of Pufendorf’s concept
of the moral person of the state and its afterlife off his own pages.
152
Jens Bartelson, ‘Sovereignty and the personality of the state’, in The Concept of the State
in International Relations, eds. Peter M. R. Stirk and Robert Schuett (Edinburgh, 2015),
p. 94.
4 Atlantic Appropriations: Breaking and
Making Composite Polities
The chapters in Part II of this book look at several aspects of the

reception of Pufendorf’s theory of the state in different contextual
clusters. Chapter 3 examined some uses to which his description of the
state was put in eighteenth-century political theory on the European
continent, the discussion stressing that there developed an account of
the moral person of the state as fundamental for defining and locating the
ethical agency of states in the international sphere. In this chapter, I turn
to a different group of traditions engaging with Pufendorf and his ideas,
and I call this cluster a set of Atlantic appropriations. These are Atlantic
as opposed to, say, American traditions because, in the first series of
arguments that I examine, the topic is the structure of the first British
Empire in North America, and while in the second sequence of argu-
ments the focus is on the construction of a new American political
system, the ideas that informed the design had roots in the Scottish
Enlightenment.
The focus in this chapter more than in Chapter 3 is Pufendorf’s theory
of the composite state. Pufendorf’s analysis of the Holy Roman Empire as a
composite polity, I argue, helped to frame an argument in terms of which
the first act in the story of decolonisation would be performed, and also
the founding of a new composite polity on the other side of the Atlantic
Ocean. More specifically, in Sections I and II of the chapter, I argue that
Pufendorf’s writings on the configuration of composite polities aided a
number of important thinkers to conceive of the character of the British
imperial constitution in such a way that they were able more stringently
to announce their dissatisfaction with British imperial policy, and even-
tually to declare their independence from the metropole. In Section III,
I show how, via certain commentators on Pufendorf’s political philoso-
phy associated with the Scottish Enlightenment, Pufendorf’s argument
that the state is a composite moral person whose sovereignty has a
facultative basis exerted a considerable influence over the authors of
The Federalist Papers, in which the shape of the future constitutional
republic was elucidated and justified.
144
Atlantic Appropriations 145
More than any of the others in this book, this chapter makes the claim
that there are world-historical aspects in respect of the reception of
Pufendorf’s theories of state and sovereignty. The historian who has done
most to point to the influence that Pufendorf exerted on eighteenth-
century American political thought is Alison L. LaCroix, but her book
deals mainly with the impact that Pufendorf’s category of a system of
states had on conceptions of federalism after the American colonies had
declared themselves liberated, and with neither Pufendorf’s place in the
history of the American Revolution nor with the impact of his conception
of the state – as moral person, as devised to apply above all to composite
polities, and as constitutionalist – on the design of the new American
republic.1 I also hope, though, that the chapter is a contribution to our
understanding of the much wider and deeper process of the expansion of
the society of states from European to global scale. David Armitage has
written that the Americas during this period represent ‘the matrix for
processes of state-making that would recur across the modern world until
our own time’.2 I provide, in conclusion, some tentative suggestions as to
why Pufendorf ought to be inserted into the story of the emergence of a
world of independent states.
I. The Epoch of Two Pufendorfian Constitutions

My excavation of a Pufendorfian dimension in the writings of some
important contributors to the political theory of American independence
by no means constitutes a paradigm shift with respect to our understand-
ing of that event; rather, it supplements and refines a particular interpret-
ation of it. According to this, Americans declared their independence
from Great Britain as the final act in a long-running dispute with
Parliament, whose authority over them they came utterly to deny.
Americans regarded the British Empire as comprising a number of
separate societies each enjoying their own relationship with a single
sovereign, the Crown. It was only when the Americans realised that the
king regarded himself as constitutionally subordinate to Parliament
that they declared their independence from the realm. This discourse,
then, construed the British Empire as a composite polity. Very few
historians have picked up on this label.3 Nor has its Pufendorfian
1
Alison L. LaCroix, The Ideological Origins of American Federalism (Cambridge, MA, 2010).
2
Armitage, Foundations, p. 2.
3
The exceptions are H. G. Koenigsberger, ‘Composite states, representative institutions
and the American Revolution’, Historical Research, 62 (1989), pp. 135–153; and Eliga
H. Gould, ‘A virtual nation: Greater Britain and the imperial legacy of the American
Revolution’, American Historical Review, 104 (1999), pp. 476–489. Anthony Pagden also
146 Part II
provenance, not to mention the explicit invocations of the philosopher

himself in revolutionary discourse, been investigated. That is what I do in
Sections I and II of this chapter.
I must first briefly characterise the broad historiographical approach to
which I see my discussion as contributing. The historiography of the
American Revolution has now reached a fourth general phase. First
liberal, then republican, then natural-rights and latterly common law
interpretations have dominated the field in turn. The liberal account
allotted pride of place to Locke’s influence, especially with respect to
his theory of property. The Revolution was said to be Lockean in
the sense that it was a revolution by men who felt that the British
government was now menacing their property, ‘men of substance to
whom the security of unlimited accumulation was of first importance’.4
Second, some intellectual historians claimed to have recovered a
republican discourse in which the Revolution was performed. Bernard
Bailyn, for example, argued that the British colonists in America began
to imbibe the Radical Whig ideas of the opposition politicians in
Parliament. These ideas were of liberty against power and virtue against
corruption. Vigilance was needed to defend liberty against the inevitable
encroachment of power and to stave off the effects of corruption.
The ‘innovations’ in British colonial policy in the 1760s provided evi-
dence of a ministerial ‘conspiracy’ to extinguish American liberties,
and so the British subjects in America cut their connections with the
motherland.5 Third, the natural-rights interpretation of the Revolution
sought to bring Locke back into the picture, but the Locke who stressed
natural rights, popular sovereignty and government by consent
as opposed to individualism, economic self-interest and materialism.6
recognises that the first British Empire can, from one aspect, be described as a composite
monarchy, but he adds (rightly) that the description is partial, because the empire was also
a ‘tribute-distribution system’, a ‘tribal conquest state’, and a ‘network of economic and
political clientage’. See Anthony Pagden, ‘Fellow citizens and imperial subjects:
Conquest and sovereignty in Europe’s overseas empires’, History and Theory, theme
issue 44 (2005), pp. 28–46, at p. 28.
4
C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke
(Oxford, 1962), p. 258. See also Louis Hartz, The Liberal Tradition in America: An
Interpretation of American Political Thought since the Revolution (New York, 1955).
5
Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA,
1967). See also J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought
and the Atlantic Republican Tradition (Princeton, 1975); J. G. A. Pocock, ‘The myth of
John Locke and the obsession with liberalism’, in John Locke: Papers Read at a Clark
Library Seminar, 10 December 1977, eds. J. G. A. Pocock and Richard Ashcraft (Los
Angeles, 1980).
6
E.g., Steven M. Dworetz, The Unvarnished Doctrine: Locke, Liberalism, and the American
Revolution (Durham, NC, 1990). See also Michael P. Zuckert, ‘Natural rights and
imperial constitutionalism: The American Revolution and the development of the
The last decade or so, however, has been witness to the rise of another
interpretive paradigm. The historians associated with this thesis advance
the argument that the proper terrain on which to locate the reasons for
the American Revolution is the contentious nature of the British consti-
tution. According to its foremost proponent, John Phillip Reid, the
Americans revolted because they clung to a belief that the true British
constitution was that which existed before the Glorious Revolution of
1688 settled sovereignty on the King-in-Parliament, so that Parliament
was supreme over the king and the monarchy was subordinate to
Parliament. Americans, however, still considered the king himself to
be their sovereign, as he had been when they had first put down
roots in America. Their rights were not natural rights but the rights
of Englishmen, set down in their colonial charters just as the rights of
Englishmen had first been set down in Magna Carta.7 The American
Revolution resulted as it slowly dawned on the colonists that their
appeals to George III to assert his authority over Parliament were falling
on deaf ears, because George respected the principles of the Glorious
Revolution. The eighteenth century was ‘the epoch of two constitutions’,
setting ‘a static, customary, prescriptive constitutionalism against a
dynamic constitutionalism of will, power, and command’.8 Common
law constitutionalism, the sustaining force behind the colonial charters
from which the colonists considered that they derived all their rights,
came to be seen as being threatened by a new constitutionalism in
which Parliament could not be checked. The Revolution ensued.
Reid’s thesis has recently been subjected to some friendly criticism
from historians generally amenable to his position. Eric Nelson argues
that American patriots had in fact always envisioned themselves ‘as heirs
to the parliamentary struggle against Stuart absolutism and popery’, but
that, as the dispute with Parliament began to pick up speed during
the 1770s, the patriots quickly became ‘zealous defenders of Stuart
Royalism’.9 Jack P. Greene argues that Reid’s ‘two constitutions’
American amalgam’, in Natural Rights Liberalism from Locke to Nozick, eds. Ellen Frankel
Paul, Fred D. Miller, Jr., and Jeffrey Paul (New York, 2005).
7
John Phillip Reid, Constitutional History of the American Revolution, vol. 3, The Authority to
Legislate (Madison, WI, 1991). For Reid’s explicit assessment of the natural-rights
interpretation and for the ‘irrelevance of Locke’, see his ‘The irrelevance of the
Declaration’, in Law in the American Revolution and the Revolution in Law: A Collection of
Review Essays in American Legal History, ed. Hendrik Hartog (New York, 1981),
pp. 69–80.
8
John Phillip Reid, Constitutional History of the American Revolution, vol. 4, The Authority of
Law (Madison, WI, 1993), pp. 4–5.
9
Eric Nelson, ‘Patriot Royalism: The Stuart monarchy in American political thought,
1769–75’, William and Mary Quarterly, 68 (2011), pp. 533–572, at pp. 535 and 537.
148 Part II
argument fails to recognise that settlers considered that each British

colony had its own constitution, albeit in each case one drawing on the
same British legal principles.10 Craig Yirush, contrastingly, contends that
settlers had long seen themselves as agents of empire subject to one
imperial constitution, and that their censures of Parliament in the years
and months leading up to the revolution did not so much conservatively
hark back to a defunct metropolitan constitution but invoked an imperial
constitution which in their view Parliament was circumventing.11
Although all these writers consider theirs a minority report on the intel-
lectual origins of the American Revolution, it seems to me that here we
have a now established and forceful paradigm.12
However, by insisting that the Revolution was articulated as a series of
increasingly insistent demands that British subjects in North America be
granted their charter rights and rights at common law, these writers have
tended to ignore some important references in the documents that they
have studied. One of the sources by which Americans made sense of the
structure of the British Empire, I want to maintain, was Pufendorf’s
writings on the composite polity. In Chapter 2, I argued against a
prevalent view in the literature about Pufendorf, namely, that he was
a theorist of political absolutism. This interpretation, nonetheless, had
considerable political consequences during the British imperial crisis that
ended with American independence. The imperialist case was coloured
by an assimilation of Pufendorf’s definition of law to common law in the
writings of the influential legal scholar and parliamentarian Sir William
Blackstone. Yet some colonial writers would not allow Pufendorf to be
used this way, and brought him to bear on their arguments concerning
the legitimate bounds of British sovereignty. This section examines the
emergent constitution of sovereign command by which the British
10
Jack P. Greene, The Constitutional Origins of the American Revolution (New York, 2011).
The preface gives an assessment of Reid’s work and situates the book’s argument with
respect to his. See also Jack P. Greene, Peripheries and Center: Constitutional Development
in the Extended Polities of the British Empire and the United States, 1607–1788 (Athens, GA,
1986).
11
Craig Yirush, Settlers, Liberty, and Empire: The Roots of Early American Political Theory,
1675–1775 (New York, 2011).
12
For instance, Nelson contrasts his perspective to the ‘standard [republican] view’;
Greene considers that only his own and Reid’s work has added anything new since the
1970s, and that it has been overlooked; and Yirush writes that ‘scholarship on early
American political thought . . . has reached an impasse, with the republican contention
that a classical politics of virtue dominated early American political theory proving
unsustainable in the face of the strong counter-evidence that liberal ideas of rights,
property, and consent, often associated with John Locke, were an important part of the
ideology of the Revolution’. Nelson, ‘Patriot Royalism’, p. 537; Greene, Constitutional
Origins, pp. xvi-xxi; Yirush, Settlers, p. 5.
came to view their relations with the North American colonies, and of the
early claims critical of it, by Daniel Dulany, the Younger, and Richard
Bland. This is why I call this period, in conscious imitation of Reid, the
epoch of two Pufendorfian constitutions.
The legal tradition of England, and that of the United Kingdom after
the Act of Union in 1707, was that of the common law. Sir Edward Coke,
the greatest of common lawyers, summed up the source of common law
in his Institutes of the Lawes of England (Part I published in 1608) thus:
‘reason is the life of the Law, nay the common Law it selfe is nothing else
but reason, which is to be understood as an artificiall perfection of
reason, gotten by long study, observation, and experience, and not of
every mans naturall reason’.13 He did not mean that common law was
based on the natural reason of natural law theory; rather, as Michael
Lobban points out, the common law was considered as ‘a system of
reasoning’, its sources lying in the way that judges thought about legal
problems.14 When Coke wrote about the sources of common law, he
listed about twenty forms of reasoning, among which were: ‘the books,
records, and other authorities of Law’; ‘approved Precedents and Use’;
‘the common opinion of the Sages of the Law’, and so on.15 Common
law was based on the procedure of writs and actions rather than substan-
tive laws or rights. It was not seen as a self-contained totality, but as
having developed in response to specific cases. It did not issue guides
to conduct, and was adjudicative rather than legislative.
This all began to be upset with the publication of Sir William
Blackstone’s Commentaries on the Laws of England in 1765, which
marked the first attempt to systematise the common law, to demon-
strate that it exhibited the coherence of the Roman law and of its civil
law variants on the European continent. Blackstone was impressed by
the civilian structure, which he described as a ‘collection of written
reason’ directing us to the knowledge of justice.16 The English law,
too, could be ‘a science, which distinguishes the criterions of right
and wrong’.17 Blackstone’s Roman law structure allowed him to argue
that the common law was not a haphazard congeries of maxims and
customs, but a rational whole. He even began where Justinian had,
13
Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, vol. 2, Institutes of
the Lawes of England, ed. Steve Sheppard (Indianapolis, 2003), § 138, p. 701.
14
Michael Lobban, The Common Law and English Jurisprudence 1760–1850 (Oxford, 1991),
p. 7.
15
Coke, Institutes, § 3, pp. 647–649.
16
Sir William Blackstone, Commentaries on the Laws of England, ed. Stanley Katz, 4 vols.
(Chicago, 1979), vol. 1, p. 5.
17
Ibid., p. 27.
150 Part II
with natural law. But Blackstone plied another source for his concep-
tion of law, and that source was Pufendorf.18
Blackstone defined law ‘in general’ as ‘that rule of action, which is
prescribed by some superior, and which the inferior is bound to obey’.19
As we have seen, this was Pufendorf’s definition.20 Natural law was
God’s will. God created man with ‘freewill to conduct himself in all
parts of life’, but also laid down ‘certain immutable laws of nature’
in order to regulate and restrain that free will. He also gave to man
‘the faculty of reason to discover the purport of those laws’.21 These laws
are ‘the eternal, immutable laws of good and evil, to which the creator
himself in all his dispensations conforms; and which he has enabled
human reason to discover, so far as they are necessary for the conduct
of human actions’.22 In the state of nature, there would be no need for
any other law. Nor, indeed, ‘could any other law possibly exist; for a
law always supposes some superior who is to make it; and in the state
of nature we are all equal, without any other superior but him who is
the author of our being’. But ‘man is formed for society’ and therefore
people join to form states, for it is ‘impossible’ for the entirety of mankind
‘to be united in one great society’.23 In these states, what Blackstone
called ‘municipal law’ either declared natural law, or legislated for
matters to which natural law was ‘indifferent’ or permissive (such
‘as exporting of wool into foreign countries’).24 Blackstone defined
municipal law as ‘a rule of civil conduct prescribed by the supreme power
in a state, commanding what is right and prohibiting what is wrong’.25
This supreme power, then, could be nothing but the lawmaker, so that
sovereign and legislature became ‘convertible terms’.26
The municipal law that was declaratory of natural law defended what
Blackstone called people’s ‘absolute rights’, while the municipal law that
upheld legal prescriptions on indifferent matters created a sphere of
‘relative rights’.27 But Blackstone claimed – as Pufendorf had not – that
it was for the sovereign to determine even absolute rights. In Wolffian
fashion, Blackstone argued that as human circumstances alter so differ-
ent propositions of natural law, as superintending a sphere of licit and
permitted human actions, will come to apply. Natural law, indeed, only
18
James Wilson pointed this out in a series of lectures given as Professor of Law at the
College of Philadelphia. In a set of detailed commentaries on the Commentaries, he
remarked that Blackstone’s definition of law had no precedents in English legal
history, and came from Pufendorf. See the discussion of Wilson below.
19
Blackstone, Commentaries, vol. 1, p. 38.
20
Pufendorf, Law of Nature, I, vi, 9, p. 60/ 75.
21 22 23
Blackstone, Commentaries, vol. 1, pp. 39–40. Ibid., p. 40. Ibid., p. 43.
24 25 26 27
Ibid., p. 42. Ibid., p. 44. Ibid., p. 46. Ibid., p. 123.
comes into force when it is incorporated in municipal law and promul-

gated by sovereign will. In Britain this sovereign was Parliament, which
hath sovereign and uncontrollable authority in the making, confirming,
enlarging, restraining, abrogating, repealing, reviving, and expounding of laws,
concerning matters of all possible denominations, ecclesiastical, or temporal,
civil, military, maritime, or criminal; this being the place where the absolute,
despotic power, which in all governments must reside somewhere, is entrusted by
the constitution of these kingdoms.28
Sovereign will was uncontrollable by reason or natural law, for ‘if the
parliament will positively enact a thing to be done which is unreasonable,
I know of no other power in the ordinary forms of the constitution that is
vested with authority to control it’.29
Therefore, Blackstone offered no programmatic guidance on the ques-
tion of the validity of an act of Parliament that violated natural law.30
When faced with the challenge of unreasonable parliamentary action, he
reverted to his concept of sovereignty rather than natural law principles,
even though he had started out by writing that ‘no human laws should be
suffered to contradict’ the laws of nature.31 Now we are told that, when it
comes to declaring natural law, this was down to ‘the will and wisdom of
the legislature’.32 Thus when Blackstone came to write about absolute
rights, those that ‘would belong to [an individual] merely in a state of
nature’, these derived from, and were revocable by, the state. His ‘abso-
lute right’ of ‘liberty and free locomotion’, for instance, invoked laws in
support of it that were statutory, and he maintained moreover that the
right could be removed by the settlement regulations of the Poor Laws.33
Blackstone was the second-most-cited secular European writer in
North America during the revolutionary era.34 His conception of parlia-
mentary sovereignty exerted itself on the political stage during
1765–1766, when Parliament (of which Blackstone had been a Member
since 1761) issued first the Stamp Act (1765), under the auspices of which
the British government sought to tax the settlers for the upkeep of military
forces based in America, and later passed the Declaratory Act (1765).35
28 29
Ibid., p. 156. Ibid., p. 91.
30
David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-
Century Britain (Cambridge, 1989), p. 55.
31 32
Blackstone, Commentaries, vol. 1, p. 42. Ibid., p. 53.
33
Ibid., p. 131; vol. 3, pp. 128–129; vol. 4, p. 431.
34
Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge, LA, 1988),
p. 143.
35
For the classic account of colonial opposition to the Stamp Act, see Edmund S. Morgan
and Helen M. Morgan, The Stamp Act Crisis: Prologue to Revolution (Chapel Hill, NC,
1953).
152 Part II
Before 1765, whenever the Crown had sought revenue from the colonies,
it had asked provincial assemblies for voluntary contributions. It was also
customary that, unless a tax demonstrably benefited one particular group,
taxation ought to be uniform across the realm. Parliament’s assertion of a
right to tax the colonists – and only the colonists – flew in the face of these
practices. But time-honoured practices had been irrevocably disturbed
in the wake of the Seven Years’ War between Britain and France. For
decades, the British Treasury had pursued a policy of separating decision-
making on revenue generation derived from acts of Parliament from both
the hereditary revenues of the Crown and returns produced in the col-
onies; now, the financial exigencies of the war tilted the balance of power
within away from Treasury policy towards Parliament.36 The Stamp Act
was the first act of a newly strengthened Parliament. It did not go down
well in America. When it became clear that the tax was uncollectable,
Parliament repealed the act. However, MPs did not want to imply that the
Americans were outside parliamentary jurisdiction. As Chancellor of the
Exchequer William Dowdeswell put it, ‘repeal upon expediency is proper,
but if you let this repeal go without an assertion of right, they will conclude
that Parliament has given up the right absolutely’.37 The repeal, therefore,
was issued alongside the Declaratory Act, which Blackstone had advo-
cated in Parliament, and which asserted in its preamble that ‘the said
colonies and plantations in America have been, are, and of right ought to
be, subordinate unto, and dependent upon the imperial crown and par-
liament of Great Britain’. This was because Parliament ‘had, hath, and of
right ought to have, full power and authority to make laws and statutes
of sufficient force and validity to bind the colonies and people of America,
subjects of the crown of Great Britain, in all cases whatsoever’.38
Following the Stamp Act, the right of Parliament to legislate for the
colonies would be debated on both sides of the Atlantic. To put it rather
starkly, the British held that sovereignty lay in Parliament, being vested
co-ordinately in commons, lords and king. All subjects of the realm,
including the colonists, were represented in Parliament, which could
legislate however it saw fit. The colonists, by contrast, held that only
the king was their sovereign, and that they were not represented
in Parliament. The opening salvo from the parliamentary side came in
1765 from Secretary to the Treasury Thomas Whately, who had drawn
36
Elizabeth Mancke, ‘Empire and state’, in The British Atlantic World, 1500–1800, eds.
David Armitage and Michael J. Braddick, 2nd edn. (Basingstoke, 2009), pp. 210–211.
37
Quoted in Paul Langford, The First Rockingham Administration, 1765–1766 (Oxford,
1973), p. 127.
38
The full text is in Morgan and Morgan, Stamp Act Crisis, pp. 155–156.
up the stamp duty legislation.39 ‘The British empire in Europe and in

America’, Whately enunciated, ‘is still the same Power: Its Subjects in
both are still the same People; and all equally participate in the Adversity
or Prosperity of the whole’.40 Being ‘one State’ and not ‘a Confederacy of
many’, it could have but one supreme authority, and that was Parliament,
which could make general laws for the whole and override any local laws
that conflicted with the common interest.41 The colonies had been
granted charters so that they might benefit the metropolis. They should
supply primary products for consumption or re-export in the home
country, and in return they would receive the benefits of the mills and
forges based in Britain. ‘Lands are wanting in the one for Produce, and
hands cannot be found for Manufactories in the other’; therefore, Britain
and her colonies were a community of interests.42 His main point was
that no distinction could be drawn between legislation and taxation:
The Acts of Trade and Navigation, and all other Acts that relate either to
ourselves or to the Colonies, are founded upon no other Authority: they are not
obligatory if a Stamp Act is not, and every Argument in support of an Exemption
from the Superintendence of the British Parliament in the one Case, is equally
applicable to the others.43
The colonists could not, according to Whately, claim that the consti-
tutional right of ‘no taxation without representation’ applied in their case.
In England itself, the right of election was ‘annexed to certain Species of
Property’, and thus nine-tenths of the inhabitants of Britain could not
vote for their representative.44 ‘The merchants of London . . . the Propri-
etors of the public Funds; the inhabitants of Leeds, of Halifax, of
Birmingham, and of Manchester . . . and of that great corporation the East
India Company’ – ‘none of them chuse their Representatives’.45 But this
did not mean that they were not represented in Parliament, for they were
‘virtually represented’. ‘Every Member of Parliament’, Whately assured
his audience, ‘sits in the House, not as Representative of his own Con-
stituents, but as one of that august assembly by which all the Commons
of Great Britain are represented’.46 In the same way were the American
colonists represented in Parliament. Thus the Americans shared with
their non-elector counterparts in Britain ‘the inestimable Privilege of not
39
See the detailed study by Ian R. Christie, ‘A vision of empire: Thomas Whately and The
Regulations Lately Made concerning the Colonies’, English Historical Review, 113 (1998),
pp. 300–320.
40
[Thomas Whately], The Regulations Lately Made Concerning the Colonies and the Taxes
Imposed upon them, Considered (London, 1765), p. 39.
41 42 43 44
Ibid., p. 40. Ibid., p. 67. Ibid., pp. 104–105. Ibid., p. 108.
45 46
Ibid., pp. 108–109. Ibid., p. 109.
154 Part II
being bound by any Laws, or subject to any Taxes, to which the Majority
of the Representatives of the Commons have not consented’.47
The first American rejoinder to Whately came from Daniel Dulany,
the Younger, Mayor of Annapolis in Maryland, in a pamphlet entitled
Considerations on the Propriety of Imposing Taxes in the British Colonies
(1765). Dulany’s tract soon caught the public eye, going through five
editions within three months of its original appearance, and being
reprinted twice in London in the same year as a separate document
and three times in collections of writings on American affairs.48 Dulany
began his rejoinder by taking issue with the applicability of the theory of
virtual representation to the colonists. In principle, all the non-electors in
Britain were capable, he said, of becoming electors, a prospect denied to
the Americans by dint of geography. Furthermore, in Britain there was
‘an inseparable connection’ between non-electors, electors and their
representatives, and their ‘security against oppression’ was consequent
on this.49 By contrast, ‘not a single actual elector in England might be
immediately affected by a taxation in America imposed by a statute which
would have a general operation and effect upon the properties of the
inhabitants of the colonies. The latter might be oppressed in a thousand
shapes without any sympathy or exciting any alarm in the former’.50
The colonists were simply too far removed from the metropolis to be
virtually represented in Parliament, if virtual representation were sup-
posed to be about some identity of interests.
Dulany then deepened his critique of Parliament’s ostensible right to
tax the colonists by claiming that Parliament was not sovereign over the
colonies. Only the king enjoyed that status. He was now speaking not only
to Whately’s argument but also to Blackstone’s claim that because the two
Houses of Parliament had settled the Crown on William and Mary at the
Glorious Revolution, despite the fact that the future Queen Anne had a
stronger hereditary claim, and because the House of Hanover could not
legitimately have laid claim to the throne following her death without
Parliament’s decision in the Act of Settlement (1701), then Parliament’s
claim to sovereignty was prior to the monarch’s.51 Dulany’s reply to this
47
Ibid., p. 112.
48
Thomas Randolph Adams, American Independence – the Growth of an Idea:
A Bibliographical Study of the American Political Pamphlets Printed Between 1764 and
1776 dealing with the Dispute between Great Britain and Her Colonies (Providence, RI,
1965), p. 11.
49
Daniel Dulany, ‘Considerations on the propriety of imposing taxes in the British
colonies’, in Pamphlets of the American Revolution 1750–1776, vol. 1, 1750–1765, eds.
Bernard Bailyn with Jane N. Garrett (Cambridge, MA, 1965), p. 614.
50 51
Ibid., p. 615. Blackstone, Commentaries, vol. 1, p. 156.
line of argument was to turn the reasoning on its head. From which
source, he asked, had the Lords derived their share in the legislature,
and from which source had particular places in Britain derived their
power of choosing representatives to send to the Commons? His answer:
from ‘royal charters’.52 Royal sovereignty was in fact a condition of
parliamentary authority. Having established to his satisfaction that all
legislative power flowed from royal charters, Dulany then picked holes
in another argument that the colonies were represented in Parliament.
Many imperialists held that the privileges and immunities vested by
charter were generally those of a trading company rather than a colonising
enterprise, and thus had been modelled on articles of incorporation.
Charters therefore created corporations, not independent governments.
Samuel Johnson, for example, defined a charter as a grant to colonisers
‘permitting them to settle in some distant country, and enabling them to
constitute a Corporation’.53 To Dulany’s mind, this flew in the face of the
facts. ‘The power described in the provincial charters is to make laws, and
in the exercise of that power the colonies are bounded by no other
limitations than what results from their subordination to and dependence
upon Great Britain’.54 It is therefore ‘as absurd and insensible, to call a
colony a common corporation because not an independent kingdom, and
the powers of each to make laws and bylaws are limited tho’ not compar-
able in their extent and the variety of their objects, as it is to call Lake Erie
a duck puddle because not the Atlantic Ocean’.55 Dulany claimed to have
shown, therefore, that the British Parliament had its legislative power
from royal charters, and that the transoceanic settlers had the same.
But Dulany did not take issue with what Whately had written about the
empire constituting a single whole, a community of interests in which
there was one sovereign. He rather modulated this imperial vision by
appealing to the account of the German Empire provided by ‘Baron
Pufendorf’.56 The English sovereign was the ‘superior’ with whom the
prospective colonists had made their contracts ‘when they left their native
country to settle in the wilderness of America’. In these contracts
‘the measure of obedience and submission and the extent of the authority
and superintendence’ were set down.57 The emigrants received the
assurance from their sovereign ‘that their privileges as English subjects
should be effectually secured to themselves and transmitted to their posterity’.58
52
Dulany, ‘Considerations’, pp. 634–635.
53
Samuel Johnson, Political Tracts: Containing ‘The False Alarm’, ‘Falkland’s Islands’, ‘The
Patriot’ and ‘Taxation no Tyranny’ (London, 1776), pp. 196–197.
54
Dulany, ‘Considerations’, p. 618. 55
Ibid. 56
Ibid., p. 638. 57
Ibid., p. 633.
58
Ibid., p. 634.
156 Part II
In return, they agreed to extend the king’s dominions and to be obedient

to the terms of the contracts. Now, as Pufendorf had made clear, empire
is a very different beast from anything regulated by common law before.
Trade between the colonies themselves and between the colonies and
Britain was essential to maintaining Britain’s maritime power and thus its
security. The colonies could do nothing to endanger the mother country,
and thus ‘a right to regulate their trade without their consent [was]
admitted’. This was a right now held by Parliament under its own royal
charters, as the ‘supreme national council’.59 Intra-imperial trade existed
for the good of the whole, and it was therefore natural that it should be
regulated by the will of the representative chamber of the motherland.
Nevertheless, the rights enshrined in colonial charters could not be
infringed. ‘When powers compatible with the relations between the
superior and the inferior have by express compact been granted to and
accepted by the latter . . . the authority of the superior can’t properly
interpose, for by the powers vested in the inferior is the superior
limited’.60 Dulany’s express compact is the same thing as Pufendorf’s
fundamental laws.
Dulany’s argument had an impact. Soon colonial politicians began to
inveigh against the supposed identity at common law of colonies and
corporations. For instance, in February 1773, the House of Representa-
tives in Massachusetts enquired ironically: ‘Are any of the Corporations
formed within the Kingdom, vested with the Power of erecting other
subordinate Corporations? Of enacting and determining what Crimes
shall be Capital? And constituting Courts of Common Law with all their
Officers, for the hearing, trying, and punishing capital Offenders with
Death?’61 But more than that, Dulany’s was the first of a short series of
attempts by American writers to weigh in against Parliament’s right to tax
the colonies without their consent by positing a theory of the imperial
constitution. The next writer in this series was the ‘now almost forgotten’
Richard Bland, who built on Dulany’s contribution in order to
develop still more radical conclusions.62 Bland did not himself draw
on Pufendorf, but his pamphlet is an important link in the chain between
Pufendorf and the American Revolution, so I mention it here.
Bland served in the Virginia House of Burgesses from 1742 until his
death in 1775. An Inquiry into the Rights of the British Colonies (1766) was
59 60
Ibid., p. 638. Ibid., p. 619.
61
Quoted in John Phillip Reid, ed., The Briefs of the American Revolution: Constitutional
Arguments between Thomas Hutchinson, Governor of Massachusetts Bay, and James Bowdoin
for the Council and John Adams for the House of Representatives (New York, 1981), p. 64.
62
Jeff Broadwater, George Mason: Forgotten Founder (Chapel Hill, NC, 2006), p. 45.
his response to Whately. It begins with the argument that the colonies
‘were not settled by Fugitives from their native Country, but by Men who
came over voluntarily, at their own Expense, and under Charters from
the Crown, obtained for that Purpose’.63 The first charter was granted by
Elizabeth I to Sir Walter Raleigh, who was to take possession of however
much territory he could and found in it a civil government ‘as near as
conveniently might be agreeable to the Form of the English Government
and policy thereof’. This ‘Country was to be united to the Realm
of England in perfect LEAGUE and AMITY, was to be within the
Allegiance of the Crown of England, and to be held by Homage’.64
Raleigh called this new colony Virginia. By 1621, a structure of govern-
ment had been established, Bland maintained, whereby legislation was
made jointly by a General Assembly comprising a House of Burgesses,
elected by all freeholders, and a council and governor appointed by the
Crown. Even after the Virginia Company’s patent was recalled by
Charles I, he assured the Virginians, ‘under his Royal Signet’, that
‘all their Estates, Trade, Freedom and Privileges, should be enjoyed by
them in as extensive a Manner as they enjoyed before the recalling
the Company’s Patent’, and that these rights included that ‘Virginia shall
be free from all Taxes, Customs, and Impositions whatsoever; and none
shall be imposed on them without consent of the General Assembly’.
Thus were the colonists ‘in full Possession of the Rights and Privileges of
Englishmen, which they esteemed more than their Lives’.65 Bland
argued that the same relationship between sovereign and colony existed
in the case of all the British colonies in North America.
Bland followed Dulany, then, in defining the British Empire as a
composite state in much the same way that Pufendorf had so defined
the Holy Roman Empire after 1648. The colonies were united by their
acceptance of a common sovereign, whose sovereignty protected their
rights and liberties as Englishmen, just as the emperor protected
the system of feudatories and the rights of the estates according to
Pufendorf’s conception of empire. Bland added a good deal more
documentary detail to Dulany’s rather scant assertions of the contents
of the charters that guaranteed the settlers’ rights. But he also went
further than Dulany had done in several significant respects. First,
Bland was explicit that each colony constituted ‘a People’ in its own
right; there was no notion of the empire itself composing one people,
63
Richard Bland, ‘An inquiry into the rights of the British Constitution’, in American
Political Writing During the Founding Era, 1760–1805, eds. Charles S. Hyneman and
Donald S. Lutz (Indianapolis, IN, 1983), vol. 1, p. 76.
64 65
Ibid. Ibid., pp. 78–79.
158 Part II
as Whately had urged.66 The American assemblies each represented a

distinct people having the benefit of its own relationship with the Crown.
Second, Bland was far more forthright than Dulany in denying that the
Houses of Parliament exercised any superintending authority at all over
the colonies. The monarch had not historically applied to Parliament to
levy a tax or make legislation for the colonies; he applied to the assem-
blies. Bland made the remarkable claim that the ‘Constitution of the
Colonies, being established upon the Principles of British Liberty, has
never been infringed by the immediate Act of the Crown’.67 It had only
ever been flouted by Parliament. Bland demanded that the colonies be
able to ‘lay their Complaints at the Foot of the Throne’, to appeal to their
sovereign against the Parliament that falsely claimed sovereignty over
them.68 On this account, the British Parliament itself appeared to be no
grander an assembly than any of those in America; it represented the
people of Britain, and could in their name maintain a relationship with the
king in just the same way as the assemblies of America do in the names of
their peoples. Indeed, it did not even represent the British people as
perfectly as did the American assemblies, because since 1430 a voting
qualification of a freehold bringing in at least forty shillings a year had
been in operation on mainland Britain, whereas in America all freeholders
could vote in assembly elections.69
Bland was not advocating revolution, but he did adumbrate one.
‘May the Colonies always remain under a constitutional subordination
to Great Britain!’ he declared.70 But the kind of subordination he envis-
aged was unacceptable to the British state. The kind of picture that
Dulany first painted and which Bland reworked did more than any other
to set the Revolution under way.
II. A Pufendorfian Revolution

After the Declaratory Act was signed into law, Parliament began to pass
increasingly capricious statutes designed to strengthen Westminster’s
hand against the colonies. In July 1767, the New York Suspending Act
suspended the legislative authority of the New York General Assembly.
It was precipitated by what Parliament considered to be evidence ‘of a
direct denial of the authority of Parliament’ on the part of the assembly.71
66 67 68 69
Ibid., p. 83. Ibid., p. 81. Ibid., p. 84. Ibid., pp. 70–71.
70
Ibid., p. 86.
71
R. C. Simmons and P. D. G. Thomas, eds., Proceedings and Debates of the British
Parliaments Respecting North America, 1754–1783, 6 vols. (Millwood, NY, 1982), vol. 2,
p. 469.
Parliament had directed, in the Quartering Act (1765), that colonial

assemblies supply any troops that Britain might station within
their jurisdictions ‘with Sundry necessities’, ‘at the Expense of the
Province’. The New York legislature voted funds for some enumerated
supplies – bedding, firewood, candles, etc. – but not for salt, vinegar,
beer or cider. The Crown vetoed the bill, but New York still refused to
comply. Parliament thus suspended the assembly. Blackstone, one of the
advocates in Parliament for this measure, argued that the Suspending
Act carried ‘into effect’ the ‘authority’ of the Declaratory Act.72
From 1766, moreover, Parliament instituted a series of laws now named
after the Chancellor of the Exchequer of the time, Charles Townshend.
These placed taxes on four products – glass, paper, paint and tea –
exported from Great Britain to the colonies. The revenue raised was to
be paid to local executive and judicial officials in America appointed
by the Crown so that such officers would ‘no longer [be] dependent
upon the pleasure of any Assembly’.73
As Reid has rightly remarked, then, ‘Parliament got into the habit of
using the Declaratory Act not just as proof that Parliament had authority
to legislate for North America, but as a reason why Parliament should
pass specific legislation – to preserve its sovereignty by asserting it’.74 The
pamphlet war correspondingly moved up a gear. But the tone set for
thoughtful Whigs by Dulany and Bland was only slightly modulated and
amplified until 1774, the year of the publication of James Wilson’s
Considerations on the Nature and Extent of the Legislative Authority of the
British Parliament. Wilson was a Scot who emigrated to America in
1765 at the age of twenty-three. He would go on to become Professor
of Law at the College of Philadelphia, a Supreme Court judge from
1789 until his death in 1798, and one of only six men to sign both the
Declaration of Independence and the Constitution.
Rather than taking on the arguments of a government stooge such as
Thomas Whately, Wilson began his Considerations by naming the real
villain: Sir William Blackstone. The entire justification for what the
British were doing in America depended on Blackstone’s arguments.
Wilson knew exactly from where Blackstone had derived his terms.
‘The introduction of the principle of superiority into the definition of
law in general, we traced, when we examined that subject, from
Sir William Blackstone to Baron Puffendorf. The introduction of the
72
Quoted in Jerome Frank, ‘A sketch of an influence’, in Interpretations of Modern Legal
Philosophies: Essays in Honor of Roscoe Pound, ed. Paul Sayre (New York, 1947), p. 196.
73
Simmons and Thomas, Proceedings, vol. 2, p. 470.
74
Reid, Authority to Legislate, p. 59.
160 Part II
same principle into the definition of municipal law, can be traced to the
same source’.75 He thus sought immediately to remind Blackstone that
Pufendorf’s own conclusions had not been quite so uncompromising.
The ‘principle’ on which Blackstone founded his case is ‘of great import-
ance: its importance, however, is derived from its tendency to promote
the ultimate end of all government’.76 Superiority in sovereignty for
Pufendorf was, as we have seen, a comparative not a superlative concept.
The law of nature, contra Blackstone, ‘must regulate the legislature
itself’. For
civil liberty is nothing else but natural liberty, devested of that part which
constituted the independence of individuals, by the authority which it confers
on sovereigns, attended with a right of insisting upon their making a good use of
their authority, and with a moral security that this right will have its effect.77
Sovereignty is instituted for purposes of protection of individuals. The
‘moral security’ that remains with the people even after they have set up a
state is a right of resistance to a sovereign not making good use of its
authority. It is ‘moral’ because it is grounded in natural law, and there-
fore the dictates of reason. Wilson provided a reading of Pufendorf that
resounded much more strongly with Pufendorf’s own intentions than did
Blackstone’s.
There then followed an argument now familiar to us from Bland:
‘that all the different members of the British empire are distinct states,
independent of each other, but connected together under the same
sovereign in right of the same crown’.78 Pufendorf, in his Monzambano,
had described the kind of sovereignty vested in the head that all the states
of the German Empire shared as that pertaining to a ‘limited monarchy’,
in the words of Bohun’s translation. We now find Wilson arguing that
Britain’s similar constitutional structure means that the ‘constitution
of Great Britain is that of a limited monarchy’.79 Parliament had no
authority over the colonies. Its statutes might have obligatory force in
conquered territories, such as Ireland, but the same argument did not
apply to the American colonists. The settlers themselves were conquerors,
for ‘they undertook, at their own expense, expeditions to this distant
75
James Wilson, ‘Of municipal law’, in Collected Works of James Wilson, eds. Kermit L. Hall
and Mark David Hall (Indianapolis, IN, 2007), vol. 1, p. 552. And again at p. 572:
‘Puffendorf, from whom the idea of a superiour, as forming a necessary ingredient,
seems to have been transplanted into the Commentaries’.
76
Wilson, ‘Considerations on the Nature and Extent of the Legislative Authority of the
British Parliament’, in Collected Works, vol. 1, p. 4.
77 78 79
country, took possession of it, planted it, and cultivated it’. They were
‘commissioned’ to do so ‘by the crown’.80
They took possession of the country in the king’s name; they treated, or made war
with the Indians by his authority; they held the lands under his grants, and paid
him the rents reserved upon them: they established governments under the
sanction of his prerogative, or by virtue of his charters: – no application for
those purposes was made to the parliament: no ratification of the charters or
letters patent was solicited from that assembly.81
Parliamentary authority, Wilson held, ‘is derived solely from
representation’, and the colonists are not represented in Parliament,
not even ‘virtually’.82 Their connection with Great Britain is now only
through the Crown, a relationship ‘founded on protection’.83 This pro-
tection follows from the monarch’s prerogative powers: his war- and
peace-making powers; his conclusion of alliances; his regulation of
domestic and international trade; and his ‘negative on the different
legislatures throughout his dominions, so that he can prevent any repug-
nance in their different laws’.84 Allegiance from the colonists to the king
‘now becomes a duty founded upon principles of gratitude, as well as on
principles of interest: it becomes a debt, which nothing but the loyalty of
a whole life will discharge’.85 Blackstone was right, Wilson claimed, to
maintain that the colonies should recognise that they were under an
obligation to a superior; but he was right for the wrong reasons.86 The
settlers were still subjects of the king, for they had not gone into exile
from England but instead took with them commissions or letters patent
from the Crown. Thus, the ‘only relation, in which . . . the colonists must
continue, is that of subjects: the only dependency, which they ought to
acknowledge, is a dependency on the crown’, for ‘this is a dependence
founded upon the principles of reason’.87
So far Wilson’s arguments had brought him no closer than either
Dulany or Bland to suggesting that the colonies throw off the monarch.
But in January 1775, as the crisis wore on, Wilson did take one step
closer. The immediate impetuses to his speech were a succession of acts
that the Americans dubbed the ‘Intolerable’ or ‘Coercive Acts’, intro-
duced in May and June of that year. They included the Boston Port Act,
which closed the port of Boston ‘until it shall sufficiently appear to his
Majesty that full satisfaction has been made by or on behalf of the
inhabitants of the said town’ to the East India Company for the tea
destroyed in the famous Boston Tea Party, when Boston residents had
80 81 82 83
Ibid., p. 24. Ibid., p. 27. Ibid., pp. 19 and 58. Ibid., p. 20.
84 85 86 87
Ibid., p. 30. Ibid., p. 29. Ibid., p. 25. Ibid., p. 28.
162 Part II
thrown into the sea tea imported by British ships and now subject to
Townshend taxation.88 The Massachusetts Government Act allowed the
governor rather than the elected justices of the peace to proclaim a riot
and to call for military assistance from British troops. The Administra-
tion of Justice Act, meanwhile, permitted the governor, at his discretion,
to decide that British officials accused of capital crimes incurred when
putting down riots or collecting taxes could be tried in Great Britain.
To Wilson’s mind, the acts were an infringement of monarchical pre-
rogative. He claimed that ‘prerogative can only operate when the law is
silent’. And yet the Massachusetts Government Act unilaterally altered
the terms of the ‘charter or constitution of the colony of Massachusetts’,
which set down the fundamental laws on the basis of which they accepted
the king as their sovereign. The king’s prerogative gave rise to ‘one
essential article to be performed on his part’: ‘that, in those cases not
expressly provided for by the laws, it shall be conducted by the best rules
of discretion, agreeably to the general spirit of the laws, and subserviently
to their ultimate end – the interest and happiness of his subjects – that, in
no case, it shall be conducted contrary to the express, or to the implied
principles of the constitution’.89 What the king had done was ‘illegal’.
‘Have not British subjects, then, a right to resist such force . . .? They
have, sir, and this right is secured to them both by the letter and the spirit
of the British constitution’.90 We have seen that, so far, Wilson had done
more than Dulany and Bland to run natural law arguments alongside
ones from legal precedent; and he makes no exception for the right of
resistance. He cited Pufendorf precisely at this point in defence of the
argument that there is a difference between resistance and ‘rebellion’.
Without God on their side, American rebellion in face of assertions of
monarchical sovereignty would be inadmissible. However, if right reason
is the law of nature, and the law of nature is the highest legal standard,
then if reason vindicates ‘rebellion’, rebellion becomes resistance, which
is vindicated by God’s law.91
John Adams was an admirer of Wilson’s. Adams would be sent by
Massachusetts to the first and second Continental Congresses, be instru-
mental in securing support for independence, and eventually serve as
second president of the United States. He first rose to prominence as a
consequence of a series of essays published under the pseudonym
Novanglus in the Massachusetts Gazette during 1774–1775. Novanglus
88
89
James Wilson, ‘Speech delivered in the Convention for the Province of Pennsylvania,
Held at Philadelphia, in January, 1775’, in Collected Works, p. 40.
90 91
Ibid., p. 41. Ibid., p. 44.
(as the essays are now collectively known) was a response to another
series of articles published by the Boston lawyer Daniel Leonard.92
The thrust of Leonard’s argument was that there could be ‘no
possible medium between absolute independence’ on the one hand,
and ‘subjection to the authority of parliament’ on the other.93 If the
colonies were not subject to the authority of Parliament, then they were
to all intents and purposes independent, for if they were independent of
Parliament, they were also independent of the Crown. The Crown was
an invention of Parliament, instituted at the Glorious Revolution and
reformed further with the Act of Union uniting England and Scotland
in 1707. In claiming an allegiance to the king only, the Americans were
daring to allot the monarch arbitrary power. They were forgetting lessons
that had been learned the hard way in Britain.
Adams rejected the view that the colonists were subjects of the British
realm or state. He reminded his readers that between 1603 and 1707 one
monarch reigned over both England and Scotland, but governed
England with the English parliament and Scotland with the Scottish
parliament. Sir Edward Coke had shown that obedience was due to the
person of the king:
Now seeing the king hath but one person, and several capacities, and one politick
capacity for the realm of England, and another for the realm of Scotland, it is
necessary to be considered, to which capacity ligeance is due. And it was resolved
that it was due to the natural person of the king (which is ever accompanied with
the politick capacity, and the politick capacity as it were appropriated to
the natural capacity) and it is not due to the politick capacity only, that is,
to the crown or kingdom, distinct from his natural capacity.94
It was thus to the person of the monarch rather than to the British state
that the colonists owed their allegiance. Otherwise, some colonists might
owe their allegiance to an entity that had voted itself out of existence in
1707, the Scottish parliament, and thus their being subjects of the Crown
at all was thrown into doubt.
92
For good discussions of Adams’s Novanglus, see: C. Bradley Thompson, John Adams
and the Spirit of Liberty (Lawrence, KS, 1998), pp. 66–79; Richard Alan Ryerson, ‘John
Adams, republican monarchist: An inquiry into the origins of his constitutional thought’,
in Empire and Nation: The American Revolution in the Atlantic World, eds. Eliga H. Gould
and Peter S. Onuf (Baltimore, MD, 2005).
93
Daniel Leonard, ‘Massachusettensis’, in The American Colonial Crisis: The Daniel
Leonard-John Adams Letters to the Press, 1774–1775, ed. Bernard Mason (New York,
1972), p. 39.
94
John Adams, ‘Novanglus No. IX’, in Papers of John Adams, vol. 2, December 1773-April
1775, ed. Robert J. Taylor (Cambridge, MA, 1977), p. 347.
164 Part II
Leonard had suggested that the Americans ‘must be’ subject to

‘the supreme power of the state’. In Adams’s eyes, this ‘seems to betray
a consciousness that we are not by any law or upon any principles, but
those of meer power; and an opinion that we ought to be’.95 Adams
further inferred this from Leonard’s claim that the colonies were ‘equal’
with Britain’s other ‘ancient possessions’, Ireland, Wales and the
Channel Islands.96 Both Wales and Ireland, Adams pointed out, were
conquered dominions of the Crown until they consented to be incorpor-
ated into the realm with parliamentary representation (in the case of
Wales), or until such time as they consented to be subject to laws, when
expressly named in them, without representation (as with Ireland).
‘These are the principles upon which the dependence and subordination
of Ireland are founded’, wrote Adams; he added pungently, ‘Whether
they are just or not, is not necessary for us to enquire’.97 Behind such
‘principles’ stands the English conquest of Ireland; but the American
colonies were never conquered and annexed to the British realm. Rather,
they were ‘discovered’, and then ‘purchased by the settlers, off
the savages’.98 The colonies are simply not amenable to constitutional
reflections that compare them to conquered territories.
What is the real nature of the relationship between the colonies and
Great Britain? To Adams’s mind, the common law could not speak
to this question. ‘Colonization,’ he wrote, was ‘Casus omissus at
common law’.99 The ‘terms “British Empire” are not the language of
the common law, but the language of the news papers and political
pamphlets’.100 We must instead look elsewhere. At this juncture, Adams
turned to address not Leonard’s arguments but those contained in
A Candid Examination of the Mutual Claims of Great Britain and the
Colonies. Its author was Joseph Galloway, an American loyalist writer
95
John Adams, ‘Novanglus No. VII’, in Papers, p. 315.
96
Leonard, ‘Massachusettensis’, pp. 39–43.
97
Adams, ‘Novanglus No. X’, in Papers, p. 362.
98
Adams, ‘Novanglus No. XII’, in Papers, p. 373. This ‘purchase’ turns out to mean
nothing more than ‘subduing’ the land to cultivation by ‘labour, blood, and treasure’; to
this extent Adams was a good Lockean (pp. 373–374). On the consequences for
imperialist ideology of Locke’s argument that the ‘improvement’ of land through its
cultivation was mandated by natural law, see Barbara Arneil, John Locke and America:
The Defence of English Colonialism (Oxford, 1996); Tuck, Rights of War and Peace,
pp. 167–181; and Duncan Ivison, ‘The nature of rights and the history of empire’, in
British Political Thought in History, Literature and Theory, 1500–1800, ed. David Armitage
(Cambridge, 2006).
99
Adams, ‘Novanglus No. VIII’, in Papers, p. 327.
100
Adams, ‘Novanglus No. III’, in Papers, p. 250.
and representative of Pennsylvania in the Continental Congress in

1774.101 Galloway’s pamphlet took aim at the ‘untenable principles’
of the American Whigs, and then used ‘the learned Pufendorf’ to argue
that the colonists had no right to take a stand against Parliament. ‘In the
constitution of all societies’, wrote Galloway, ‘two covenants are essen-
tial’. The first is the pact of association, the second the pact of ‘submis-
sion of the strength and will of each individual to the will and head of the
society, as far as the public good requires; and thus it is that a regular state,
and perfect government is formed’.102 In the pact of submission, people
‘surrender up their natural rights’ in exchange for protection by the state
against ‘foreign powers’ and ‘the private injustice of individuals’.103 For
Galloway, in the American case the sovereign created with the pactum
subjectionis was Parliament, and once made Parliament’s sovereignty was
absolute. In response, Adams quoted Pufendorf back at Galloway, at
length, showing that he did allow resistance against a sovereign.104
Surely, Adams sighed, he is a writer of ‘sufficient weight, to put in the
scale against the mercenary scriblers of New-York and Boston, who have
the unexampled impudence and folly, to call these which are revolution
principles in question, and to ground their arguments upon passive obedi-
ence as a corner stone’.105 Pacts of submission, he reminds Galloway, are
two-way affairs: they set out reciprocal obligations. The colonial charters
are these contracts, and they were made with the person of the king, so
that the colonists now ‘owe allegiance to the person of his majesty king
George the third’. ‘If it follows from thence, that he appears king of the
Massachusetts, king of Rhode-Island, king of Connecticut, &c. this is no
absurdity at all . . . As to giving his Majesty those titles, I have no objec-
tion at all: I wish he would be graciously pleased to assume them’.106
George III should be brought to realise his obligations and to restrain
Parliament.
We thus have good reason to reject Michael P. Zuckert’s assertion that
the ‘background theory to which Adams appeals . . . should be easy to
identify: it is the Lockean natural rights/social contract philosophy’.107
Adams’s explicit evocation of Pufendorf and the two contracts supplied
101
See the biography by John E. Ferling, The Loyalist Mind: Joseph Galloway and the
American Revolution (Philadelphia, PA, 1977).
102
Joseph Galloway, A Candid Examination of the Mutual Claims of Great-Britain and the
Colonies: With a Plan of Accommodation on Constitutional Principles (New York, 1775),
pp. 17–18.
103
Ibid., p. 34. 104
Adams, ‘Novanglus No. VI’, in Papers, pp. 291–293.
105
Ibid., p. 293; emphasis mine.
106
John Adams, ‘Novanglus No. VII’, in Papers, p. 321.
107
Zuckert, ‘Natural rights’, p. 41.
166 Part II
the background theory with which he interpreted British colonisation of

North America and the relations now subsisting between metropole and
colonies. Thus, like Dulany and Bland before him, Adams argued that
the British Empire was held together in virtue of separate contracts
between different communities and a common sovereign, whose sover-
eign will was manifested by his signing into law whatever legislation a
colony’s representatives deemed reasonable. The colonists, by their
charters and long usage, had consented to Parliament’s regulation of
the empire’s overseas dominions, ‘but we never thought parliament the
supreme legislature over us. We never generally supposed it to have any
authority over us, but from necessity, and that necessity we thought
confined to the regulation of trade’.108 We have a writer citing Pufendorf
as a resistance theorist, a philosopher and jurist of ‘revolution principles’.
The understanding of the first British Empire as a composite state in
the Pufendorfian mould reached its apogee in Thomas Jefferson’s
A Summary View of the Rights of British America (1774).109 Jefferson was
elected to represent Virginia in the Continental Congresses, in large part
on the back of the strength of this pamphlet. It has seldom been noted
that Jefferson owed the core of his argument to Bland, whom he credited
with being ‘the most learned and logical man of those who took a
prominent lead in public affairs, profound in constitutional lore’, with
the Inquiry being ‘the first pamphlet on the nature of the connection
with Great Britain which had any pretension to accuracy of view on that
subject’.110 Yet Bland, according to Jefferson, ‘finally left his reader and
himself bewildered between the steady index of the compass in their
hand, and the phantasm to which it seemed to point’.111 In setting
himself against Parliament only, and by lightly passing over the infringe-
ments of the rights of the colonists perpetrated by the king himself, Bland
108
Adams, ‘Novanglus No. IV’, in Papers, p. 261.
109
There is a detailed exposition of the pamphlet in Lee Ward, The Politics of Liberty in
England and Revolutionary America (New York, 2004), pp. 351–374. Ward’s is only
intellectual history of the American Revolution of which I am aware to discuss
Pufendorf in any detail. However, he does not do this in order to establish
Pufendorf’s influence over events. Rather, Pufendorf is said to have set out a
‘moderate Whig’ position that justifies parliamentary sovereignty. Thus he is the main
philosopher of a tradition of thought that is represented in America by the likes of John
Dickinson. Revolutionaries like Jefferson had no need for him. I disagree with Ward’s
interpretation of Pufendorf, which requires an elision of Pufendorf’s distinction
between supreme and absolute sovereignty; Ward mistakenly writes of a category of
‘absolute supreme’ sovereignty (p. 112). Moreover, Pufendorf is used mainly to label a
‘tradition’; there is no attempt to show that Dickinson read him at all.
110
Thomas Jefferson, The Writings of Thomas Jefferson, 20 vols., eds. Andrew A. Lipscomb
and Albert Ellory Bergh (Washington D.C, 1903), vol. 9, p. 467.
111
Ibid., p. 474.
failed to do that to which his logic pointed: he failed to indict the king,
and declare that the composite polity ought to be dissolved.
Jefferson’s political thought altered fundamentally over the course of
his life.112 In his later years, Jefferson came to the view, first put forward
by the abbé Sieyès in France in 1789, that there could be no such thing as
constitutional law.113 ‘We may consider each generation as a distinct
nation’, he wrote, ‘with a right, by the will of its majority, to bind
themselves, but none to bind the succeeding generation, more than the
inhabitants of another country. These are axioms so self-evident that no
explanation can be made plainer; for he is not to be reasoned with who
says that non-existence can control existence, or that nothing can move
something’.114 One generation cannot foreclose the possibilities for
action of another; if it did, then the dead were tyrannising the living.
No society could make a perpetual constitution or law. Constitutions and
laws should be made with expiry dates of about twenty-five years later; if
their provisions are felt by a later generation to be reasonable, then they
must be reaffirmed as law. This line of thought marked a real discontinu-
ity from his earlier political theory. Taking Pufendorf as his guide, he
wrote in 1793 that all ‘special Conventions’ or international treaties are
binding by the law of nations, regardless of whether there is a change in
the form of government in the parties to a treaty.115 Furthermore, having
declared in his early period that Pufendorf’s political philosophy pro-
vided the foundation for supposing that all men are born equal, he could
go on to argue that in each political community God had nevertheless
planted a ‘natural aristocracy’ as an arbiter of locally sanctioned canons
of rationality, and which could make compacts which bound succeeding
generations, unless the natural aristocracy of the next generation should
decide that the commitment absolutely had to be dissolved.116 There is a
strong tendency in the secondary literature to assume that Jefferson was
Lockean through and through; however, his early political theory gave
112
On Jefferson’s political thought, and its influences, in the run up to the Declaration of
Independence, see Allen Jayne, Jefferson’s Declaration of Independence: Origins,
Philosophy, and Theology (Lexington, KY, 1998); and Peter S. Onuf, The Mind of
Thomas Jefferson (Charlottesville, VA, 2007), pp. 65– 80.
113
See Daniel J. Boorstin, The Lost World of Thomas Jefferson, 2nd edn. (Chicago, 1981).
114
Jefferson, Writings, vol. 15, p. 470.
115
Thomas Jefferson, ‘Law of nations’, in Jefferson: Political Writings, eds. Joyce Appleby
and Terence Ball (Cambridge, 1999), pp. 555–565.
116
See Charles L. Griswold, ‘Rights and wrongs: Jefferson, slavery, and philosophical
quandaries’, in A Culture of Rights: The Bill of Rights in Philosophy, Politics, and Law,
1791 and 1991, eds. Michael J. Lacey and Knud Haakonssen (Cambridge, 1992),
pp. 193–194.
168 Part II
far more priority to contracts and communalism, and in this respect

Pufendorf often explicitly influenced his thought.
A Summary View, penned in July 1774, began by listing all of the
Intolerable Acts, arguing that ‘not only the principles of common-sense,
but the common feelings of human nature, must be surrendered up
before his majesty’s subjects here can be persuaded to believe that they
hold their political existence at the will of a British parliament’.117
He proceeded to ask George III to intervene ‘as the only mediatory
power between the several states of the British empire, to recommend
to his parliament the total revocation of these acts’.118 This entreaty
presupposed a theory of the imperial constitution, and A Summary
View provides that. But where Dulany, Bland, Wilson and Adams had
argued that the first colonists took with them charters from their mon-
arch, Jefferson denied this. He was entirely Lockean in this respect.
Before the first colonists emigrated to America, they ‘possessed a right
which nature has given to all men, of departing from the country in which
chance, not choice, has placed them, of going in quest of new habita-
tions, and of there establishing new societies, under such laws and
regulations as to them shall seem most likely to promote public happi-
ness’.119 This is how the British constitution itself came into existence.
The ‘Saxon ancestors’ of contemporary Britons ‘had, under this univer-
sal law, in like manner left their native wilds and woods in the north of
Europe, had possessed themselves of the island of Britain’, and had
‘established there that system of laws which has so long been the glory
and protection of that country’.120 But Jefferson understood that, none-
theless, the colonies were colonies; they were not free and independent
states. This, he argued, was because the first settlers had effectively been
duped into signing up to colonial charters. He made this point after an
excursus on the history of the nature of property ownership in Britain.
Those same ‘Saxon ancestors’, he wrote, ‘held their lands, as they did
their personal property, in absolute dominion, disencumbered with any
superior, answering nearly to the nature of those possessions which
feudalists term allodial’.121 Thus the Saxon conquerors of the British
117
Jefferson, ‘A summary view of the rights of British America’, in Political Writings, p. 70.
118
Ibid., p. 73.
119
Ibid., p. 65 Compare with Locke, according to whom proof against Filmer that God
had not ordained paternal sovereignty were the ‘Examples so frequent in History, both
Sacred and Prophane . . . of Men withdrawing themselves, and their Obedience, from
the Jurisdiction they were born under, and the Family of Community they were bred up
in, and setting up new Governments in other places’. See John Locke, Two Treatises of
Government, ed. Peter Laslett (Cambridge, 1988), II, § 115, p. 345.
120
Jefferson, ‘Summary view’, p. 65. 121
Ibid., p. 77.
Isles held their property without any notion of obligations above or below
that came with that property. This began to alter following the Norman
Conquest. William personally captured a considerable amount of land,
part of which ‘he granted out, subject to feudal conditions’. Notwith-
standing, ‘much was left in the hands of his Saxon subjects; held of no
superior and not subject to feudal conditions’. William, though, intro-
duced into law a principle that ‘all lands in England were held either
mediately or immediately of the crown’, but this, Jefferson maintained,
‘was borrowed from those holdings, which were truly feudal, and only
applied to the others for the purposes of illustration’.122 It is not clear
precisely what point was being illustrated by William’s legal stratagem.
All the same, the early settlers in America ‘were farmers, not lawyers’,
and thus the ‘fictitious principle that all lands belong originally to the
king, they were persuaded to believe real’. They therefore ‘took grants of
their own lands from the crown’.123
This was the first part of a story in which the colonists ‘thought proper
to adopt that system of laws under which they had hitherto lived in the
mother country, and to continue their union with her by submitting
themselves to the same common Sovereign, who was thereby made the
central link connecting the several parts of the empire thus newly multi-
plied’.124 The sovereignty of the British Crown was regenerated as that of
a sovereign over subjects who had been defined by the law of nature
alone. It was thus a story that was dominated by an initial deception.
In telling his story like this, Jefferson had gone further than any of those
theorists of the imperial constitution we have considered thus far.
The contracts that had furnished Dulany, Bland, Wilson and Adams
with reasons to suppose that the British Empire was a legitimate political
entity began to appear pretty dubious in Jefferson’s treatment; Locke had
been wheeled in to make a case against Pufendorf. But Jefferson never-
theless considered that the ties that bound the colonies to the king were
not to be sundered flippantly; they could not be so broken according to
the law of nature, a point he took from Pufendorf. These were contracts;
sovereignty was not delegated on trust. ‘We are willing, on our part,
to sacrifice everything which reason can ask to the restoration of that
tranquillity for which all must wish’.125
Still, Jefferson went further than Dulany et al. in condemning not only
Parliament, but George III as well. He proceeded to ‘mark out his
deviations from the line of duty’.126 He had signed into law legislation
made by ‘one legislature of the empire, which might bear injuriously on
122 123 124 125

Ibid. Ibid., p. 78. Ibid., p. 66. Ibid., p. 80.
126
Ibid., p. 73–74.
170 Part II
the rights and interests of another’. He had dissolved assemblies in

America and refused calls for another. He had ‘permitted our laws to
lie neglected in England for years, neither confirming them by his assent
nor annulling them by his negative; so that such of them as have no
suspending clause we hold on the most precarious of all tenures, his
majesty’s will’.127 The king was thus encouraged to return to the proper
exercise of ‘the important post in which fortune has placed you, holding
the balance of a great, if well poised empire’.128
This was unacceptable to the British state. Since the Glorious
Revolution of 1688 it had been determined that the monarch’s sover-
eignty would be exercised in Parliament. The American attempt to
define the empire as a composite polity looked like a design to separate
the two. To accept that the British king had a share in the colonial
government that he held independently of the authority of Parliament,
a share of rule in the colonies rooted exclusively in the consent of the
American peoples, would be to accept a principle of royal independence
that could potentially subvert the principle of legislative supremacy
established in the Bill of Rights of 1689.
Some in Britain, though, took the American argument on board.
Edmund Burke argued in the House of Commons that the colonies once
‘were meer Corporations, Fishermen and Furriers, [but] they are now
Commonwealths’.129 If the people of England ‘by their Delegates, con-
tinue to exercise the powers of legislation and taxation upon the Colonies’,
then ‘they must exalt themselves to the sovereignty of America, and render
the inhabitants of that country the subjects of subjects’.130 Burke
understood the first British Empire as something like a Pufendorfian
composite polity,131 but voices like his did not win the case in Britain. In
April 1775, the British army and Massachusetts militias clashed in the
battles of Lexington and Concord. Still the Continental Congress let it
be known that the settlers there represented wished to retain ‘the covenant
chain’ that had bound their forefathers with the British, and that they would
‘cheerfully bleed in defence of our Sovereign in a righteous cause’.132 In a
127 128
Ibid., p. 74. Ibid., p. 80.
129
130
Edmund Burke, ‘Letter to Lord North, May 19, 1774’, in American Archives, Fourth
Series. Containing a Documentary History of the English Colonies in North America from the
King’s Message to Parliament, of March 7, 1774, to the Declaration of Independence by the
United States, eds. Matthew Saint Clair Clarke and Peter Force, 6 vols. (Washington,
DC, 1837), vol. 1, p. 338.
131
David Boucher, Political Theories of International Relations: From Thucydides to the Present
(Oxford, 1998), p. 325.
132
James H. Hutson, ed., A Decent Respect to the Opinions of Mankind: Congressional State
Papers, 1774–1776 (Washington, DC, 1975), pp. 142 and 115.
speech to Parliament on October 26, 1775, George III claimed that all
such American protestations ‘of loyalty to me’ were designed as a cover
‘whilst they were preparing for a general revolt’. He thus announced that
his naval and land forces would be strengthened, and that he was also
considering ‘friendly offers of foreign assistance’.133 Adams then
announced to Congress that the ‘King, Lords and Commons have united
in sundering this Country and that I think forever. It is a compleat
Dismemberment of the British Empire. It throws thirteen Colonies out
of the Royal Protection . . . and makes us independent in Spight of our
supplications and Entreaties’.134 It was only necessary to declare inde-
pendence formally, and Congress entrusted the writing of the draft of the
document doing so to Jefferson.135 The Lockean quality of Jefferson’s
Declaration of Independence has often been noted, usually because of its
assertion of ‘Life, Liberty, and the Pursuit of Happiness’ as ‘unalienable
Rights’. But it really continues in the same vein as the other documents
examined in this chapter. The maxims of natural rights first asserted
eventually give way to an elaboration of rights that are conventional, laid
down in colonial charters, and which George III is said to have infringed.
The Declaration is all about the reasons for the dissolution not of govern-
ment, but of empire. It is less the civil government of the colonies that is
being dissolved, than the authority of the Crown as presiding over a
confederation of many ‘peoples’. The British ‘empire’ is being declared a
composite state by the very act that declares that state dissolved.
III. The Moral Person of the State and Facultative

Sovereignty in the American Republic
The discussion so far in this chapter has revolved around the influence of
Pufendorf himself on conceptions of the first British Empire as a com-
posite polity, and of its dissolution. In all of this, however, two of this
book’s central Pufendorfian themes – that the polity is a moral person
and that its compositeness is an outcome of the functional distinction
between the faculties of intellect and will in this person – have been
133
George III, ‘His Majesty’s most gracious speech to both Houses of Parliament, on
Thursday the 26th of October, 1775’, in Clarke and Force, American Archives, vol. 5,
pp. 1–2.
134
John Adams, ‘To Horatio Gates, Philadelphia, March 23, 1776’, in Paul H. Smith,
Letters of Delegates to Congress, 1774–1789, 9 vols. (Washington, DC, 1976–79), vol. 3,
p. 431.
135
The process of drafting the Declaration of Independence and of winning support for it
from all the colonies is very well dealt with in Jay Fliegelman, Declaring Independence:
Jefferson, Natural Language, and the Culture of Performance (Stanford, CA, 1993); Pauline
Maier, American Scripture: Making the Declaration of Independence (New York, 1997).
172 Part II
strikingly absent. I now want to turn to post-revolutionary American

political discourse, and to show how both themes are relevant to an
understanding of the kind of political system that the founders of the
new American federation of states conceived and constructed. The
theory of the separation of powers between legislative, executive and
judicial branches elaborated by the authors of The Federalist Papers during
1787–1788 was, I argue, in significant respects influenced by Pufendorf’s
theory of facultative sovereignty in the moral person of the state.136
Pufendorf’s impact, in the manner in which I indicate its bearing on
the new political constitution of the United States, was mediated by
certain writers associated with the Scottish Enlightenment. Each of them
held the Chair in Moral Philosophy at the University of Glasgow, and
each took up, in a critical way, Pufendorf’s terminology of the polity as a
moral person and of its facultative configuration.137 Scottish Enlighten-
ment thinkers seem to have turned to Pufendorf because his insistence
that moral philosophy ought to begin not by considering virtue or right
but the nature of persons conceived as composites of body and soul
resonated with them.138 We must first direct our attention at Gershom
Carmichael (1672–1729). He taught on Pufendorf’s natural law theory at
Glasgow from the beginning of the eighteenth century, and after
he published his lectures as Supplements and Observations on Samuel
Pufendorf’s ‘On the Duties of Man and Citizen’ in 1724, these became the
standard commentary on Pufendorf’s moral and political theory in the
English-speaking world.139 Carmichael was probably the first author
writing in English to adopt Pufendorf’s description of the state as a moral
person. ‘We freely acknowledge’, he wrote, ‘that neither any one man nor
all men together could have had joint possession of this power as one
136
Sovereignty, of course, is probably not the right word, as, certainly on Madison’s
understanding of the federal constitution of the United States, the states of the union
were sovereign, but they nonetheless shared a government. See Richard Tuck, The
Sleeping Sovereign: The Invention of Modern Democracy (Cambridge, 2016), esp.
pp. 222–224.
137
I do not say anything about Pufendorf’s prominent place in the American discourse
about the nature of the American confederation as an actor in international affairs here.
On this, see, e.g., Andrew C. Lenner, ‘John Taylor and the origins of American
federalism’, Journal of the Early Republic, 17 (1997), pp. 399–423.
138
R. W. Serjeantson, ‘The soul’, in The Oxford Handbook of Philosophy in Early Modern
Europe, eds. Desmond M. Clarke and Catherine Wilson (Oxford, 2011), pp. 136–137.
139
Gershom Carmichael, ‘Supplements and observations on Samuel Pufendorf’s On the
Duty of Man and Citizen’, in Natural Rights on the Threshold of the Enlightenment: The
Writings of Gershom Carmichael, eds. James Moore and Michael Silverthorne
(Indianapolis, IN, 2002). For broader and deeper analysis than I can provide here of
Carmichael’s reading of Pufendorf, see Thomas Mautner, ‘Carmichael and Barbeyrac:
The lost correspondence’, in Samuel Pufendorf und die Europäische Frühaufklärung, eds.
Fiammetta Palladini and Gerald Hartung (Berlin, 1996).
moral person, as it exists in a sovereign, until they were united by

some agreement’.140 At least as important for future developments in
American political thought, however, was Carmichael’s revision of
Pufendorf’s faculty psychology. According to Carmichael, Pufendorf
was ‘perhaps’ guilty of a ‘scholastic prejudice’ when he wrote that all
mental activities ought to be ‘counted as acts of intellect or will’ and that
‘all our modes of thought must be reduced to two or, as it is commonly
expressed, must be attributed to one or other of two faculties’.141
Carmichael wanted to introduce into faculty psychology a third mental
power, which he called judgment.
In order to grasp Carmichael’s argument in his Supplements, we first
have to see that it was also a response to Antoine Arnauld and Pierre
Nicole and their 1662 book La logique, ou de l’art de penser (Logic, or the
Art of Thinking).142 This was the first text of what became a new genre, a
novel kind of logic that sought to correct what its expositors perceived as
the pitfalls of the formal logic that had held sway since Aristotle and
which, its new critics felt, offered only perfunctory acknowledgement of
the cognitive faculties and operations – of the ways in which people
actually think.143 In the Prior Analytics, Aristotle had proposed that the
end of formal logic was the determination of the forms of valid inference,
and that arguments are valid to the extent that they are instantiations of
valid forms.144 For Arnauld and Nicole, however, Aristotelian syllogisms
tended to produce ridiculous conclusions. This was because they only
pertained to one of the operations of the mind, namely, reasoning, or the
deduction of a conclusion from two premises. But Arnauld and Nicole
posited two prior mental operations: ‘conceiving’, or ‘the simple view we
have of things that present themselves to the mind’, which finds verbal
expression in nouns, adjectives and pronouns; and ‘judging’ or ‘the action
in which the mind, bringing together different ideas, affirms of one that it
is the other, or denies of one that it is the other’, which is signified by
the copula, ‘is (not)’.145 Logic ought to be concerned with producing
principles for the correct employment of all the operations of the mind
that contribute to cognition, not one only. Argumentative forms are not
140 141
Carmichael, Supplements, p. 156. Ibid., p. 31.
142
Antoine Arnauld and Pierre Nicole, Logic, or the Art of Thinking, trans./ed. Jill Vance
Buroker (Cambridge, 1996).
143
In much more detail than is possible here, see Paul Schuurman, Ideas, Mental Faculties
and Method: The Logic of Ideas of Descartes and Locke and its Reception in the Dutch
Republic, 1630–1750 (Leiden, 2004).
144
See, e.g., Jonathan Barnes, Truth, Etc.: Six Lectures on Ancient Logic (Oxford, 2007),
pp. 264–359; Marko Malink, Aristotle’s Modal Syllogistic (Cambridge, MA, 2013).
145
Arnauld and Nicole, Logic, pp. 23 and 79.
174 Part II
enough to ‘discern’ ‘the true and the false’, which is what logic
should be able to allow us to attain.146
In some notes that antedate his lectures on Pufendorf, Carmichael
applauded the effort of the two ‘celebrated authors’ to insert some
consideration of the mechanisms of real thinking into formal logic.147
Nonetheless, he deemed the French authors’ traditional attachment to
maintaining that all mental activity, in its various forms of conceiving,
reasoning and judging, as taking place somewhere between the two
faculties of intellect and will, was ill founded. The compositional activity
of judgment in particular seemed on their account to fall between two
stools. It was located ‘partly in the perception, which they credit to the
intellect, of a relation occurring between two ideas’, but also ‘in the
assent or acquiescence of the will’ when it affirms or denies the identity
of the two ideas.148 And yet Carmichael thought that ‘to anyone who
pays attention, it is quite obvious that the act of affirming or denying, in
which lies truth or falsehood, differs totally from perception or vol-
ition’.149 The intellect perceives and conceives its objects, while the will
renders decisions about action. Neither, in Carmichael’s eyes, was prop-
erly the power of deciding on truth claims. As to ‘whether judgment is an
act of the intellect or the will, is beside the point, since judgment cannot
be reduced to either of them without one of the two terms being rendered
equivocal’.150 Hence when he found in Pufendorf’s philosophy of mind a
two-faculty approach (and, as we saw in Chapter 2, when Pufendorf
wrote about judgment he tended to ascribe it to the understanding or
intellect), Carmichael reproached his master, and insisted that there was
a third faculty, called judgment, the function of which was to render
verdicts on truth and falsity, a function which for Pufendorf had been
carried out by the intellect.
The next important development in this story came with Francis
Hutcheson (1694–1746). Hutcheson’s textbook, Philosophiae moralis
institutio compendiaria (1742), opened by acknowledging that much of
his manual ‘is taken . . . from Pufendorf’s smaller work, de officio homi-
nis et civis, which that worthy and ingenious man the late Professor
Gershom Carmichael of Glasgow, by far the best commentator of that
book, has so supplied and corrected that the notes are of much more
value than the text’.151 Unlike Carmichael but like Pufendorf, however,
Hutcheson saw no need to posit a third faculty of judgment as a
146
Ibid., p. 5. 147
Carmichael, ‘Philosophical theses’, in Natural Rights, p. 339.
148 149 150
Ibid. Ibid. Ibid.
151
Francis Hutcheson, Philosophiae Moralis Institutio Compendiaria, with A Short
Introduction to Moral Philosophy, ed. Luigi Turco (Indianapolis, IN, 2007), p. 3.
supplement to intellect and will. ‘The parts and powers of the soul, which
prevent us with a more glorious view, are of various kinds: but they are all
reducible to two classes, the Understanding and the Will’.152 All the same,
what Hutcheson wrote about judgment is of great importance. Judgment
was for Hutcheson a moral matter, and intimately bound up with the
‘moral sense’ that he called ‘conscience’.153 Conscience he defined as a
‘man’s judgment concerning the morality of his actions’, or ‘his judg-
ment about his actions as to their conformity or contrariety to the law’.154
Judgment was less about the knowledge of logical or factual truth than it
was a faculty of making determinations on moral questions.155
This matters here because Thomas Reid (1710–1796) was inspired by
Carmichael and Hutcheson, and would himself go on to exert a great
intellectual influence over the designers of America’s new political
system. When he assumed the Chair at Glasgow in 1764, Reid lectured
and published widely on both moral philosophy and the science of the
human mind. He took from Carmichael the three-faculty model, but
modified this by means of terms borrowed from Hutcheson. According
to Reid, the human mind was jointly governed by the faculties of under-
standing, will and conscience, or the faculty of judging between right and
wrong. Moreover, he took the further Pufendorfian step of arguing that
the state ought to be understood as a moral person that governed itself by
means of the same faculties. ‘A Nation’, he wrote, ‘incorporated and
united into one Political Body becomes by this Union and Incorporation
a Moral Person’.156 When ‘individuals unite in one incorporate Body’
they ‘thereby resemble one person[;] this political Person must be a
moral Person and partake of the Nature of the individuals of which it is
made up’.157 The state may then ‘justly be considered as a Moral Agent
Having an Understanding, A Will, Active Power. A Conscience of Right
and Wrong’.158 And: ‘It may be said to have a publick Conscience as well
as a publick Understanding Will and Power’.159 The meaning of ‘moral’
152
Ibid., p. 25. The relationship between the faculties is discussed at pp. 52–54, in largely
Pufendorfian terms.
153
That distinctions between actions that are moral or immoral are discovered by
emotional responses to experience is, of course, a moral epistemology strongly
associated with the Scottish Enlightenment. For an excellent introduction to Scottish
moral philosophy in the eighteenth century, see M. A. Stewart, ed., Studies in the
Philosophy of the Scottish Enlightenment (Oxford, 1990).
154
Hutcheson, Philosophiae, p. 116.
155
For more on Hutcheson on moral sense and the human faculties, see Daniel Carey,
Locke, Shaftesbury, and Hutcheson: Contesting Diversity in the Enlightenment and Beyond
(Cambridge, 2006), pp. 161–172.
156
Thomas Reid, Thomas Reid on Practical Ethics, ed. Knud Haakonssen (Edinburgh,
2007), p. 153.
157 158 159
Ibid. Ibid., p. 81. Ibid., p. 94.
176 Part II
for Reid is balanced somewhere between Pufendorf’s meaning (that it is

something contrived by human beings for their well-being) and what we
may say is Kant’s meaning or our meaning, bearing on the differentiation
of intentions, decisions and actions into right and wrong. But in Reid we
find the most emphatic basing of the moral personality of the state on a
facultative constitution in the eighteenth century.
That the faculty psychology of Reid in particular provided one of the
conventional paradigms in which the drafters of The Federalist Papers
laboured was demonstrated some thirty years ago in a path-breaking
essay by Daniel Walker Howe.160 Of course, it has long been appreciated
that the separation of powers between legislative, executive and judicial
branches was inspired in some part by Montesquieu’s famous observa-
tion in The Spirit of the Laws (1748) that liberty is to be found ‘only where
there is no abuse of power’, thus requiring that in the operations of
government ‘power should be a check to power’.161 ‘There would be
the end of everything, were the same man or the same body, whether of
the nobles or of the people, to exercise those three powers, that of
enacting laws, that of executing the public resolutions, and of trying the
cause of individuals’.162 What Howe showed was that Alexander Hamil-
ton and James Madison also were inspired by Reid to argue that a well-
structured government was analogous to a balanced mind. Different
branches of government would mirror different mental faculties. Reid’s
adjustment of Pufendorf’s faculty psychology and its application at the
level of the persona moralis composita of the state fed into Hamilton’s
and Madison’s views that the legislative branch was the understanding,
the executive, the will and the judiciary, the conscience or judgment of
the state.
One major difference between the faculty psychology of the Jesuits and
their Protestant followers, on the one hand, and that of the Scottish
philosophers, on the other, had to do with the conceptualisation of
160
Daniel Walker Howe, ‘The language of faculty psychology in The Federalist Papers’, in
Conceptual Change and the Constitution, eds. Terence Ball and J. G. A. Pocock
(Lawrence, KS, 1988). It is reprinted with some alterations as ‘The political
psychology of The Federalist’, in Daniel Walker Howe, Making the American Self:
Jonathan Edwards to Abraham Lincoln (Cambridge, MA, 1997), pp. 78–106. I think
that the terminology of ‘faculty psychology’ is clearer because more specific than
‘political psychology’ (although of course it fails to resonate in the same way with the
now established academic field of political psychology). The discussion below is
indebted to Howe’s work. Sarah Knott, Sensibility and the American Revolution
(Chapel Hill, NC, 2009), pp. 245–246, also follows Howe in providing a facultative
reading of The Federalist.
161
Charles de Montesquieu, The Spirit of the Laws, trans. Thomas Nugent (New York,
1949), I, xi, 6, p. 150.
162
Ibid.
motives of self-interest, such as ambition and cupidity. During the course

of the eighteenth century, such motives, which in the sixteenth and
seventeenth centuries would have been classed as ‘passions’ and thus as
sensitive and antithetical to reason, instead were categorised as ‘inter-
ests’. They were thereby ranked as rational, although they retained some
of the characteristics of the passions, evident when rational self-interest
gave way to emotional selfishness.163 When the authors of The Federalist
Papers set out the purposes of the legislative branch of government, they
stressed that above all it was through this branch that the government
would come to possess ‘a due knowledge of the interests of its constitu-
ents’.164 It was precisely the interests of the state that were to be cognised
and cogitated upon in the legislative branch. Deliberative exchange
within the legislature would involve the representation of a diversity of
interests. The writers envisaged a bicameral system in which a Senate,
whose members represented larger constituencies for a longer time
and through an indirect method of election, would be ‘more out of reach
of those occasional ill humours, or temporary prejudices and propen-
sities’ to which democratic assemblies are sometimes prone.165 In ‘crit-
ical moments’, ‘how salutary will be the interference of some temperate
and respectable body of citizens’, until ‘reason’ and ‘truth, can regain
their authority over the public mind?’166 As the understanding of the
person of the state, it was important that it arrive at decisions
in the fullness of time, after proper deliberation, for ‘promptitude
of decision is oftener an evil than a benefit’.167 Luckily, the ‘jarring of
parties’ or interests in the legislature would slow down decision making,
so that reason should prevail.168
When the authors of The Federalist came to discuss the executive
branch, they were concerned to invest it with the will of the federal union.
It is frequently identified with energy and unity. Wrote Madison: ‘energy
in government requires not only a certain duration of power, but the
execution of it by a single hand’.169 Wrote Hamilton: ‘That unity is
conducive to energy, will not be disputed. Decision, activity, secrecy,
and despatch, will generally characterize the proceedings of one man, in a
much more eminent degree than the proceedings of any greater
163
Albert O. Hirschman, The Passions and the Interests: Political Arguments for Capitalism
before its Triumph (Princeton, 1977), esp. pp. 42–56.
164
James Madison, ‘No. 56’, in Alexander Hamilton, John Jay and James Madison, The
Federalist, eds. George W. Carey and James McLellan (Indianapolis, IN, 2001), p. 291.
165
Alexander Hamilton, ‘No. 27’, in ibid., p. 133.
166
Madison, ‘No. 63’, in ibid., p. 327. 167
Hamilton, ‘No. 70’, in ibid., p. 365.
168
Ibid. 169
Madison, ‘No. 37’, in ibid., p. 182.
178 Part II
number’.170 Thus he summarised the major difference between the

legislative and executive branches in the following way:
Those politicians and statesmen who have been the most celebrated for the
soundness of their principles, and for the justness of their views, have declared
in favour of a single executive, and a numerous legislature. They have, with great
propriety, considered energy as the most necessary qualification of the former,
and have regarded this as most applicable to power in a single hand; while they
have, with equal propriety, considered the latter as best adapted to deliberation
and wisdom, and best calculated to conciliate the confidence of the people, and
to secure their privileges and interests.171
The presidential veto over congressional legislation was expressly insti-
tuted because, according to Reid, it was one of the tasks of the faculty of
will to control the passions and prevent the passions from controlling the
person.172 The legislative branch was liable from time to time to be
overtaken by ‘all the passions which actuate a multitude’.173 Therefore,
the presidential veto would serve to prevent ‘unqualified complaisance to
every sudden breeze of passion, or to every transient impulse’.174
Finally, The Federalist Papers are quite explicit that the judicial branch
of government was the conscience of the body politic. It is the branch
possessed of the most ‘integrity’ and ‘moderation’; it is the most ‘disin-
terested’.175 It is to interpret law in particular cases and also examine
particular laws in light of their consonance with the fundamental law of
the constitution. The judiciary
has no influence over either the sword or the purse; no direction either of the
strength or the wealth of the society; and can take no active resolution whatever.
It may truly be said to have neither FORCE nor WILL, but merely judgment;
and must ultimately depend upon the aid of the executive arm for the efficacy of
its judgments.176
If ever the judicial branch ‘should be disposed to exercise WILL instead
of JUDGMENT’, then it has overstepped its bounds, attempted to
transmute into another faculty of state, and must be brought back into
line.177
This facultative aspect of the design of the United States’ political
system has sometimes been noted by contemporary political thinkers.
William E. Scheuerman has studied it in order to bring out the temporal
170
Hamilton, ‘No. 70’, in ibid., p. 363. 171
Ibid.
172
See Norman Fiering, Moral Philosophy at Seventeenth-Century Harvard: A Discipline in
Transition (Chapel Hill, NC, 1981), p. 147.
173
Madison, ‘No. 48’, in Hamilton, Jay and Madison, Federalist, p. 257.
174
Hamilton, ‘No. 71’, in ibid., p. 370. 175
Hamilton, ‘No. 78’, in ibid., p. 406.
176 177
Ibid., p. 402. Ibid., p. 405.
dimension. The drafting of legislation requires especially careful deliber-

ation because it is carried out in the shadow of the future. The executive
faculty of will is directed to the present, decisions that must be taken here
and now. Judicial activity is fundamentally orientated to the past, as
judging generally involves dealing with preceding cases and examples.178
Hannah Arendt’s biographer, Elisabeth Young-Bruehl, has suggested
that one of the reasons why Arendt was so favourably disposed to the
‘world-building’ project of the American founding was because it
brought into being a new political body in which the relations among
the powers constituted to exercise power were to be modelled on the
properly constituted human mind exercising its powers. ‘A political unit
with free checks and balances has wise legislators for thinking and con-
sidering opinions, an executive for willing, and a judiciary for judging
actions and forming opinions’.179 It thus exhibited in its structure the
kind of balance between powers that Arendt considered was integral to
free and ethical human life. What I have tried to show here is that the
American founders, by drawing their faculty psychology from Scottish
Enlightenment figures such as Reid, were in fact engaged, at one remove,
in a tradition of commentary on Pufendorf’s political thought. Pufendorf
was made an actor in the dissolution of the composite polity of the first
British Empire, but he was also present as American thinkers put
together a blueprint of a new composite polity of their own.
***
In this chapter, I examined Pufendorf’s influence in Atlantic perspective,
first by focusing on how certain American pamphleteers, in the years
leading up to the American Revolution, came to conceive of the first British
Empire as a composite polity in the Pufendorfian mould, and second by
scrutinising how Pufendorf’s theory of the moral person of the state with its
attendant facultative configuration of sovereignty wielded an influence
over the design of the new composite polity in North America. Again,
Pufendorf and the moral person of the state were both put to use for
purposes most un-Hobbesian: in order, in the first place, to characterise
the British state not as unitary but as composite, and, in the second, also to
reveal how sovereignty may be divided between different agencies without
that entailing chaos and the inevitable demise of the state.
178
William E. Scheuerman, Liberal Democracy and the Social Acceleration of Time
(Baltimore, MD, 2004).
179
Elisabeth Young-Bruehl, Why Arendt Matters (New Haven, 2006), p. 187. See also
Leah Bradshaw, Acting and Thinking: The Political Thought of Hannah Arendt (Toronto,
1989), p. 98.
180 Part II
Can a case be made for Pufendorf, in Atlantic mode, exercising an

even broader influence? David Armitage has recently argued that the
Declaration of Independence supplied a template for a genre that effect-
ively became the principle vehicle for the growth to global scale of the
society of states. Declarations of independence emanating from around
the world have aped its structure and its content, even down to the
particular intricacies of phraseology and vocabulary.180 I am not as
confident as Armitage that ‘a genealogy of the modern international
order’ follows from a history of the genre.181 Bursts of enthusiasm for
independence do not simply ‘coincide with the breakup of empires’ but
have their own sources;182 and it would be obtuse to compare the
American Revolution with the post-1945 independence movements in
Asia, Africa, the Middle East and the Caribbean, motivated as they were
by various concerns alien to those of the American revolutionaries:
nationalism, racial equality, cultural liberation, casting off economic
exploitation, etc. All the same, future research may begin to identify
certain parallels between the explanation – partial as it may be – given
here of the American Revolution and of movements elsewhere. Histor-
ians of the British Empire have begun to observe echoes of common law
constitutionalism in discourses emanating from Britain’s colonies in the
West Indies, Canada, Australia, New Zealand and South Africa.183 They
may even be heard in parts of the globe never subject to British domin-
ion. For instance, some recent research on the political theory of the
revolutions of independence in Latin America in the early nineteenth
century draws attention to the negotiations over Spain’s post-absolutist
constitution in 1812, and the critical question of how the ‘people’ of the
Spanish Empire would be represented. ‘Peninsula Spaniards held that
the Empire encompassed one people, a view that encouraged the reasser-
tion of central authority. Americans, in contrast, argued that they were
separate peoples, and appealed to the original papal grant of 1493, a
grant that gave the Americas to the crowns of Castile and Leon, not to
the Spanish state’.184 In the wake of the restoration of the House of
Bourbon in 1813 and the reinstatement of absolutist rule, creole elites
180
David Armitage, The Declaration of Independence: A Global History (Cambridge, MA,
2006).
181
David Armitage, ‘The Declaration of Independence: Its many histories’, William and
Mary Quarterly, 65 (2008), pp. 357–362, at p. 357.
182
Armitage, Declaration of Independence, p. 107.
183
Jack P. Greene, ed., Exclusionary Empire: English Liberty Overseas, 1600–1900 (New
York, 2010).
184
Christian Reus-Smit, ‘Reading history through constructivist eyes’, Millennium: Journal
of International Studies, 37 (2008), pp. 395–414, at p. 412.
in Latin America claimed that the exclusion of Americans from political

office was an abrogation of a ‘pact’ between the Spanish crown and
the ‘discoverers, conquerors and settlers of America’ in ‘our social
contract’.185 The resonances with the North Americans discussed above
are obvious. Much work remains to be done, but it may be the case that
Pufendorf’s shadow is cast far and wide, however dimly, over world
history, through such revolutions of independence. Likewise, having
achieved independence, several states have of course established them-
selves as constitutional republics dividing power between legislative,
executive and judicial branches, as Mexico did in 1824, Belgium in
1831, Czechoslovakia in 1920, Costa Rica in 1949 and so on. Indeed,
the League of Nations when it was established had the equivalent of a
bicameral legislature, a secretary-general envisaged as the executive offi-
cer, and a Permanent Court of International Justice to provide binding
judicial authority over member states when they found themselves in
conflict. We ought not to flatten history into a Pufendorfian pancake.
But we ought to give credit where credit is due, and we must not doubt
that in the making and breaking of composite polities, which has been so
much a part of global history in the nineteenth and twentieth centuries,
Pufendorf is an important influence.
185
Simón Bolívar quoted in Joshua Simon, ‘Simón Bolívar’s republican imperialism:
Another ideology of American Revolution’, History of Political Thought, 33 (2012),
pp. 280–304, at p. 286.
5 Anglo-German Interpretations:
and the Legal Person of the State
In the contemporary literature on the moral person of the state that we

have so far encountered, the state’s moral personality has predominantly
been cast as legal personality. Quentin Skinner regards Pufendorf’s use of
the adjective moral as a mark of Pufendorf having recognised that the
kind of person his state was stood in a legal tradition according to which
corporations were considered as persons in law, a tradition in which
Skinner also situates Hobbes. Katrin Flikschuh argues that Kant’s
description of the state as a moral person meant that he was attributing
to the state a ‘juridical’ will that made the state an actor in the sphere
of Right, the moral system seeking to reconcile the external freedom of
a person with all others, which is another name, on a liberal account,
for a legal system. In treating of Wolff, we even noted that his persona
quaedam moralis has recently been translated into English as ‘juridical
person’.
The literature commenting on the notion of the state as being a persona
moralis or moral person frequently has it that this is the same as saying
that the state is a legal person. This persistent interpretation of the term
writes out much of what is distinctive and interesting about the moral
person of the state as it was handled by Pufendorf and as his successors
such as Wolff, Kant and even Vattel – who wrote so much about inter-
national law but for whom the adjective moral still carried a facultative
connotation. The state, according to Pufendorf, was not a mere person
by fiction of law, but a person because it possessed powers of freedom
that paralleled and took their shape from those of the human person,
what I called in Chapter 2 the moral substratum of the state. This, which
is Pufendorf’s original contribution to the theory of the state – and as
Chapter 4 made especially clear, his theory of the composite state – is
obscured if ‘moral’ is equated with ‘legal’.
In this chapter, I investigate the roots of the misunderstanding, which
I trace to the great historian of jurisprudence, Otto von Gierke
(1841–1921). I have found myself in dialogue with Gierke throughout
182
Anglo-German Interpretations 183
the writing of this study. He wrote what – the present book notwith-
standing – is still the most comprehensive history of the idea of the state
as a moral person. He discussed the concept, moreover, as part of a
thoroughgoing project on composite polities and the idea of federalism.
He recognised Pufendorf as one of the early-modern period’s most
significant political theorists, a genius no less, who opened up new
intellectual horizons. Gierke provided a fascinating and suggestive inter-
pretation of Pufendorf’s theories of moral entities, the state and the Holy
Roman Empire, and traced their impacts down the decades. Anyone
writing about Pufendorf, the history of the idea of the state, or composite
polities, simply cannot afford to ignore Gierke’s legacy; and, indeed,
those who have undertaken to write on these subjects for the main have
certainly made good use of it. But Gierke’s remains an oeuvre with a
polemical point that has too often been ignored. The argument about the
history of ideas that he pursued and in which Pufendorf played a critical
part has too often been handled uncritically. My contention in this
chapter is that Gierke has set the terms for how the moral person of the
state has been understood in the contemporary literature, but that there
is a mistake in his analysis, which sees the persona moralis cast as but a
legal or fictional person. Others have followed in his wake. Gierke was
especially influential in Britain, which is why I have chosen to call the
cluster of interpretations that he sired an identifiable set of Anglo-German
interpretations.
Section I of this chapter puts Gierke in intellectual context, namely,
the so-called Germanist current associated with the study of public law
at the University of Göttingen from the eighteenth century, a school
whose adherents bid to clarify the basis of an autochthonous German
legal tradition, purged of all foreign influences. Gierke’s chief contribu-
tion in this regard was to reconstruct a compelling picture of public
and private life in Germany before the late medieval period, in which
groups were the same kind of person, from a legal perspective, as the
individuals who composed them. Section II deals with the rediscovery
of Roman law from the thirteenth century in Europe, and the disastrous
impact that Gierke regarded this as having on German associative life
and law. Section III examines and evaluates Gierke’s critique of
Pufendorf and of his philosophy of moral entities, moral persons and
the state, which has persuaded so many later scholars. Here we can move
from straightforward exposition to critical discussion. I beg the reader’s
pardon that it takes me so long to get to this. Nonetheless, Gierke’s story
is such a fascinating one that I think my condensed presentation of it is
well worth bearing with. Se non è vero, è bon trovato.
184 Part II
I. Gierke and Germanism

Gierke was a jurist, intellectual historian, and indeed a philosopher in
his own right. His major work, Das deutsche Genossenschaftsrecht
(The German Law of Fellowships), published between 1868 and 1913,
continues to be much respected as a work of intellectual history.1
Richard Tuck, for instance, has recommended it alongside the second
volume of Skinner’s The Foundations of Modern Political Thought as the
most reliable secondary source on the history of constitutionalism.2
In spite of its title, Gierke’s book was not narrowly concerned with
German legal history. He drew on resources from the entire European
legal and philosophical heritage, and it is for his heroic unearthing of
myriad forgotten arguments and authors that Gierke remains so revered
by intellectual historians to this day. Yet his purposes in casting his net so
wide were somewhat parochial. He wished to demonstrate that German
legal and political thought had taken a protracted and disastrous detour.3
Fittingly for a dialectical thinker, the debates on German legal and
political thought at the conclusion of which Gierke stands can best be
presented dialectically. The setting is the University of Göttingen, which
from about 1770 took over from Halle as the leading centre for the study
of public law in the Reich. Hanover was ruled from afar in London and
professors at Göttingen were freer from political interference than those
1
Most of the first volume and the introductions to the second and third have been
translated into English as Otto von Gierke, Community in Historical Perspective, trans.
Mary Fischer, ed. Anthony Black (Cambridge, 1990). Sections 3–5 of volume 3 have
been done into English as Otto von Gierke, Associations and Law: The Classical and Early
Christian Stages, trans./ed. George Heiman (Toronto, 1977); and section 11 of that
volume as Otto von Gierke, Political Theories of the Middle Age, trans./ed. Frederic
William Maitland (Cambridge, 1900). Otto von Gierke, Natural Law and the Theory of
Society, trans./ed. Ernest Barker (Cambridge, 1934) is a translation of the second part of
volume 4. Unfortunately, none of the second volume, on the character of the
Genossenschaft that represents the ideal political community effaced by subsequent
developments described in volumes 3 and 4, has been published in English translation.
Where I have not been able to make use of translations, I have made my own and include
the original German in the footnotes.
2
Richard Tuck, Philosophy and Government 1572–1651 (Cambridge, 1993), p. xii.
3
Oakeshott was unusual in that he saw immediately that Gierke’s theory of the
Genossenschaft ‘was in the nature of a compromise’ between history and philosophy; he
doubted ‘whether any theory can be satisfactory which is a compromise’. Michael
Oakeshott, The Concept of a Philosophical Jurisprudence: Essays and Reviews, 1926–51
(Exeter, 2008), pp. 97–99. Gervase Rosser has recently argued that Das deutsche
Genossenschaftsrecht is in fact a ‘politicized history’. See Gervase Rosser, The Art of
Solidarity in the Middle Ages: Guilds in England 1250–1550 (Oxford, 2015), pp. 8–9.
The debate between Roger Scruton and John Finnis, ‘Corporate persons’, Proceedings of
the Aristotelian Society, 63 (1989), pp. 239–274, succeeds in bringing to light some of the
philosophical issues involved in Gierke’s philosophy of history.
in the other major universities at Halle, Jena and Leipzig. Halle in

particular had generated partisan scholarship emphasising a territorial
and Protestant interpretation of the imperial constitution.4 (We saw in
Chapter 3 how Wolff was forced to seek the protection of the emperor
against King Frederick William I when he was expelled from Halle and
Prussia for religious heterodoxy.) The first stage of this dialectic involved
lawyers at Göttingen making use of their freedom to recover a Pufendor-
fian interpretation of the German Empire and to argue for the continued
sovereignty of the emperor as against the princes. No other figure was
more important in this respect than Johann Stephan Pütter (1725–1807),
appointed an extraordinary professor of law at the age of twenty-three
and soon regarded as ‘the leading university public law expert of the
eighteenth century’.5 Pütter was a Pufendorfian through and through.
In 1755, he published a book co-authored with his Göttingen colleague
Gottfried Achenwall (from whose expanded and single-authored
textbook, as I mentioned in Chapter 3, Kant may have taken his moral-
person description of the state) called Elements of Natural Law. The book
followed Pufendorf in holding that a political society is constituted
by a pact of association (which they called a pactum unionis), followed
by a decree of the majority as to the appropriate constitution, and then a
pactum subjectionis with the sovereign.6 In An Historical Development of the
Present Political Constitution of the Germanic Empire (1786–87, English
translation 1790), Pütter continued the Pufendorfian theme, this time
with an analysis of the ‘effects of the Peace of Westphalia’ on the Holy
Roman Empire, in which reverberations of Pufendorf’s Monzambano can
be clearly felt. Germany, he said, was a ‘compound’ body because it was
composed of various estates each of which enjoyed its own relationship
with the emperor on the basis of the contracts of submission that it had
entered into with him. ‘Germany therefore, considered as one Empire, is
now a political, but not like the other European nations, a simple body,
but a compound one, the component parts of which are distinct States,
which still preserve their connection with the Empire, as one common
supreme head’.7 This ‘supreme’ head is ‘endowed with monarchical
though not absolute power, and [is] in most respects under the necessity
of acting with the concurrence of the States of the Empire’, although ‘it is
certainly necessary for the Emperor to give his approbation before a
4 5
Whaley, Germany and the Holy Roman Empire, vol. 2, pp. 441–442. Ibid., p. 442.
6
Raymond Derathé, Jean-Jacques Rousseau et la science politique de son temps (Paris, 1988),
pp. 210–211.
7
Johann Sebastian Pütter, An Historical Development of the Present Political Constitution of the
Germanic Empire, trans. J. Dornford (London, 1790), vol. 2, p. 168.
186 Part II
decree of the Empire can have its legal force, or the rights of majesty be
exercised throughout Germany’.8 The contracts of submission, that is,
served to circumscribe the emperor’s sovereignty but they also put limits
(what he, in constitutional language, called servitutes) on the freedom
of the estates. Pütter was clear, though, that although the Reichstag
represented the ‘nation’, it neither dictated to nor even co-ruled with
the emperor, but was ‘a supplement to and check on the Emperor’s
competence’.9 Compound (or composite) bodies; monarchical heads;
supreme but not absolute sovereignty: all these are distinctly Pufendor-
fian themes. Even the specific debate, the Reichspublizisten, which
had occasioned the Monzambano, is invoked by Pütter more than a
century after its end:
With this idea, every difficulty which had hitherto arisen in the disputes
concerning the Germanic Empire, whether its government was monarchical,
democratical, or mixed, totally vanishes. People were not aware that among
different forms of government there might be another division of simple and
compound States, which had no conformity with any of other than the first of the
different standards.10
Pütter’s post-Westphalian German Empire was, in other words, a com-

posite state in the Pufendorfian vein.
The second stage of the Göttingen dialectic entailed the renunciation
of this Pufendorfian account of the Holy Roman Empire, substituted by
one to which we may trace the ‘Westphalian myth’ that in 1648 the
German princes were granted sovereignty. Key here is A. H. L. Heeren
(1760–1842), a professor of history at Göttingen, and his Handbook for
the Study of European States-Systems and Their Colonies of 1809. Heeren
wrote his book during the Napoleonic Wars. He believed that Napoleon
‘had in fact destroyed the European states system’, so that ‘he was writing
its epitaph’.11 Following the French Revolution, wrote Heeren, ‘instead
of the ancient royal throne, an imperial one was erected; instead of the
legitimate monarch it was ascended by a successful soldier, who in
defiance of all morality and policy, had just dipped his hands in the blood
of a branch of the royal family’.12 Napoleon was vanquishing the
8
Ibid., pp. 170 and 175.
9
Hanns Gross, Empire and Sovereignty: A History of the Public Law Literature in the Holy
Roman Empire, 1599–1804 (Chicago, 1973), p. 451.
10
Pütter, Germanic Constitution, p. 168.
11
Hedley Bull, The Anarchical Society: A Study of Order in World Politics, 3rd edn.
(Basingstoke, 2002) pp. 12–13.
12
A. H. L. Heeren, A Manual of the History of the Political System of Europe and Its Colonies,
from Its Formation at the Close of the Fifteenth Century to Its Re-Establishment upon the Fall of
Napoleon (London, 1864), p. 337.
Continent. Britain was at war with France when Heeren wrote, the only
power endeavouring to hold the balance of power in Europe, and thus
much in favour by Heeren. His book was a propaganda tract whose
primary purpose, according to Edward Keene, was to try ‘to stigmatize
the Napoleonic imperial system’.13 Empire he equated with Napoleon,
to which he opposed the balance of power between mutually recognising
princes; it ‘would hardly have suited that purpose to call attention to the
increasingly consolidated British imperial system in the world beyond
Europe’.14 Heeren thus aimed to overturn the earlier interpretation of his
pre-revolutionary colleagues at Göttingen that Westphalia had in fact
confirmed the Emperor’s supremacy in the Reich. Heeren saw the kind
of construal of the treaties of Westphalia made by Pütter as dangerous,
for he feared that the French under Napoleon might ‘establish their own
set of “reserved rights” through treaties’, and a ‘new imperial system . . .
might even be legitimized as the successor to the old one’.15 Thus
Heeren, fantastically but influentially, interpreted the German imperial
constitution as being organised on the basis of territorial independence
and respect for princely sovereignty. In doing this, he drew on the
authority of Vattel, who, he said, ‘has obtained the highest authority
among practical statesmen’ for having laid down the ‘principles which
held this [states] system together’, and thereby having ‘guaranteed the
security and independence of the weak against the strong’.16 But Heeren
further claimed that the principles of legal equality and independence
that Vattel set down so rigorously were in fact principles first established
at Westphalia between the estates. The Germans were an example to
the rest of Europe. Heeren effectively rewrote German history, then,
on the basis of certain principles that he found in Vattel.17
The third stage in the Göttingen dialectic is the one at which Gierke
can be situated. It takes from the first stage an understanding of Germany
as a number of communities united in a wider union, and from the
second stage an attempt to purge this picture of all associations with
13
Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World
Politics (Cambridge, 2002), p. 26.
14
Ibid.
15
Ibid., p. 19. For further discussion of Heeren, see also Richard Little, ‘The expansion of
the international society in Heeren’s account of the European states-system’, Working
Paper 07–08 (School of Sociology, Politics, and International Studies, University of
Bristol, 2005), www.bristol.ac.uk/media-library/sites/spais/migrated/documents/
little0708.pdf (accessed October 9, 2015).
16
Heeren, Manual, p. 8.
17
See Peter F. Butler, ‘Legitimacy in a states-system: Vattel’s Law of Nations’, in The
Reason of States: A Study in International Political Theory, ed. Michael Donelan (London,
1978).
188 Part II
foreign ideas of imperial rule. Heeren’s tract, as we saw, was targeted at

undermining the Napoleonic crusade. Napoleon had attempted to foist a
codified legal system ostensibly based on Roman law onto conquered
territories, including German regions on the west bank of the Rhine.
Following the Napoleonic Wars, the group of legal scholars at Göttingen
came to have in common not only an anti-French animus but also
‘an unrelentingly anti-Roman tone’ in their writings.18 Under the sway
of the philosophy of history of Hegel and Schelling, they came, moreover,
to view history as ‘the revelation of the absolute’ in time, ‘cultural and
political epochs as successive stages in an organic process in which
absolute spirit realises itself’, and law therefore as the organic product
of the Volkgeist.19 Göttingen became now not only the centre of German
legal scholarship but also the indisputable hub of ‘Germanist’ legal
scholarship. This was an attempt to excavate an authentic German
legal tradition, encompassed by the term ‘Germanism’, that had been
sidelined after the Reception of Roman law in the later Middle Ages.20
The Germanists denounced Roman jurisprudence as ‘a tool of political
oppression’, and ‘Justinian’s law as the regime of a despotic ruler,
adopted in Germany during the rise of absolutism by the princes and
by the learned jurists as their officials’.21 Gierke was the greatest of the
second generation of the Göttinger Rechtsschule, following in the footsteps
of first-generation figures such as the brothers Grimm and his teacher
Georg Beseler. Das deutsche Genossenschaftsrecht was the greatest text of
the School.22
Gierke’s text narrates the history of the rise and fall of a conception
of the personality of groups that he associates with the old German
Genossenschaft, or fellowship. I have mentioned that Gierke was a dialect-
ician, and the Genossenschaft, he argued, arose as a synthesis of certain
elements of two opposing types of organisation predating the establish-
ment of the Holy Roman Empire, the Volksgenossenschaft, or community
of people, and the herrschaftlicher Verband, or lordship group. In the first
18
James Q. Whitman, The Legacy of Roman Law in the German Romantic Era: Historical
Vision and Legal Change (Princeton, 1990), p. 214.
19
Franz Wieacker, A History of Private Law in Europe, with Particular Reference to Germany,
trans. Tony Weir (Oxford, 1995), p. 284.
20
On the broader institutional context that allowed for the distinctiveness of Göttingen
scholarship during this period, see Charles E. McClelland, State, Society and University in
Germany, 1700–1914 (Cambridge, 1980), pp. 35–57.
21
Mathias Reimann, ‘Nineteenth century German legal science’, Boston College Law
Review, 31 (1990), pp. 837–897, at p. 869.
22
On Beseler, see Michael Dreyer, ‘German roots of the theory of pluralism’, Constitutional
Political Economy, 4 (1993), pp. 7–39, at pp. 14–18. See also the discussion in Jürgen
Habermas, The Postnational Constellation: Political Essays (Cambridge, 2001), pp. 1–25.
of these, ‘all freemen as associates had equal rights and obligations, for
each was in like degree the bearer, guardian and defender of the peace
and law of the people’.23 However, the ‘community of people, which
took the place of a state for the Germans, was identical with the sum of all
freemen who bore arms.’24 In other words, there was no unit abstracted
and distinct from the individuals who together made up the association.
In the second form of association, the lordship group, a single individual
occupied the position, as guardian of peace and law, which in the com-
munity of people was occupied by all associates. ‘One individual – and
this individual not as the embodiment of an abstract idea, but as a living
personality – is the master and himself represents the complete legal
unity of the group’.25 In the first organisation, there is plurality but no
real unity; in the second, there is unity but no real plurality.
The synthesis that was the Genossenschaft was forged, Gierke claimed,
during the time of rapid social and economic change of the Hohenstau-
fen period (1138–1254). The free towns that were established during this
epoch borrowed from the Volksgenossenschaft the principle of sworn alle-
giance and from the herrschaftlicher Verband the principle of community
based on territory. But Gierke read in the records of the free towns
evidence of a differentiation and abstraction of which there are no echoes
in the earlier period. The town remained the same town in spite of
changes in its compass or citizenry or constitution, and it existed as a
subject of rights and wielder of power in its own name. ‘Here for the
first time it was neither visible lords nor a physically conceived collective
nor both in a prescribed relationship which were the possessors in their
own right of political power. But political power adhered in the town
as a town’.26 As a subject of rights and power, the town was, in Gierke’s
terms, a person, for only persons could be such legal subjects. ‘All the
progress which has been made in the corporate fellowship, as opposed to
23
Otto Gierke, Das deutsche Genossenschaftrecht, vol. 1, Rechtsgeschichte der deutschen
Genossenschaft (Berlin, 1868), p. 35: ‘Alle Freien waren als Genossen an sich gleich
berechtigt und gleich verpflichtet, denn Geber war zu gleichen Teile Mitträger,
Mitbewahrer, Mitverteidiger von Volksfrieden und Volksrecht’.
24
Ibid.: ‘Die Volksgenossenschaft, welche so bei den Germanen die Stelle eines Staates
vertrat, war identisch mit der Summe aller freien und wehrhaften Männern des Volks die
durch sie vertreten’.
25
Ibid., p. 89: ‘Einer – und dieser Eine nicht als Träger einer abstrakten Idee, sondern als
sinnlich lebendige Persönlichkeit – ist der Herr und stellt in sich die gesammte rechtliche
Einheit des Verbandes dar’.
26
Otto Gierke, Das deutsche Genossenschaftrecht, vol. 2, Geschichte des deutschen
Körperschaftsbegriffs (Berlin, 1873), p. 733: ‘Hier zum ersten Male waren weder
sichtbare Herren noch eine sinnlich wahrnembare Gesammtheit noch beide in einem
bestimmten Gemeinschafts- und Teilungs- verhältniß die eigenberechtigten Inhaber
öffentlicher Gewalt. Sondern die öffentliche Gewalt stand der Stadt als Stadt zu’.
190 Part II
the old fellowship [the Volksgenossenschaft], can be traced back to the fact
that the unity within the fellowship was recognised as a person and
acknowledged in law’.27 The old fellowship ‘was at once unity and
plurality, a whole and the aggregate of members’; now, the ‘unity within
the collectivity’ was itself ‘conceived as a person’.28
In the first place, then, the fellowship was, according to Gierke,
a person because legal subjectivity resided in it rather than in a mere
aggregate of members or in the head. In the second place, it was a person
because personhood is not merely premised on subjectivity but also on
intersubjectivity.
We feel ourselves to be self-sufficient beings, but we also feel ourselves to be parts
of a whole which lives and acts within us. Were we to think away our membership
in a particular people and state, a religious community and church, a professional
group, a family, and numerous other societies and associations, we should not
recognize ourselves in the miserable remainder. But when we think over all this,
it becomes clear it is not a matter merely of external chains and bonds which bind
us, but rather a matter of psychological relations which, reaching deep within
us and integrating us, form constituent elements of our spiritual being.29
To be a person is to be unity within a plurality, which was precisely what
the Genossenschaft was in itself and something that it further enabled of its
members. The theory of the personhood of the fellowship, Gierke main-
tained, first brought into being in order to characterise the town, soon
wielded an influence on conceptions of associational life within and
beyond it. Craft and trade guilds inside towns and cantonal assemblies
outside them also came to be understood as Genossenschäften. Persons
could exist as parts of other persons without this in any way eroding the
personality of either: it was precisely this conception of personality that
Gierke considered to be the peculiar genius of Germanism. The fellowship
was not related to its members as a merely convenient third party, but stood in an
organic relation to them. For it existed not simply for its own sake but also for the
sake of its members, and was limited and bound by this fact. On the other hand,
the members existed not just for themselves, but also for the fellowship, and were
likewise limited and bound. This resulted in the possibility of coordinating the
rights of the unit and those of its members.30
27 28
Otto von Gierke, Community, p. 242. Ibid.; my emphasis.
29
Otto von Gierke, ‘The nature of human associations’, in The Genossenschaft-Theory of
Otto von Gierke, ed. John D. Lewis (Madison, WI, 1935), p. 150.
30
Gierke, Körperschaftsbegriffs, p. 40: ‘nicht wie beliebigen Dritten, sondern in organischer
Verbindung gegenüber. Denn sie waren nicht blos für sich, sondern auch für ihre
Glieder da und durch die Beziehung auf diese begrenzt und gebunden; gleichwie
umgefehrt die Glieder nicht blos für sich, sondern auch für den Verband vorhanden
The Genossenschaft could incorporate human persons into another ‘living

organism’ without destroying the identity of the individual persons thus
incorporated. There existed a reciprocity between the personality of the
whole and that of its parts.
From the viewpoint of German law, it is in the nature of the fellowship to be a
single entity within a plurality, and consequently, as such a single entity, to lead
an independent existence beyond its members; but at the same time to be
organically linked to the plurality of independent separate beings existing within
it. The personality of the fellowship as such is, therefore, placed above but not
outside the collectivity of persons which currently forms its body; it is a unity
immanent within the body, and would evaporate into thin air as an insubstantial
abstraction as soon as one was prepared to forget its relationship to a plurality of
independent persons.31
Finally, Gierke stressed that, because it existed organically, the
Genossenschaft was a real person and not artificial or fictitious, which is
to say existing only through a fiction of the law, only able to will and
act when represented by some natural person. ‘In the elevation of the
town into a person there was nothing artificial or fictitious . . . There
was, however, an abstraction, since only by dint of abstraction could
unity be discovered in multiplicity and set forth as something distinct
from it’.32
At the apex of the ever-larger associations into which Genossenschäften
could enter was the ‘old Germanic idea of the Rechtsstaat’.33 This was
‘the last link in the chain of collective units developed into persons’,34 but
‘not generically different from the lesser associations contained within
it – the communities and corporations’.35 It was in virtue of the fact that
it was the last link, the ‘highest universality’ with ‘no more universalities
above it’, that it could be called ‘sovereign’.36 But the Rechtsstaat pos-
sessed not a single right that was not also possessed by its members.
As Chris Thornhill explains, the Rechtsstaat ‘assimilates the legally
und durch ihn begrenzt und gebunden waren. Daraus ergab sich die Möglichkeit einer
Verbindung von Einheits- und Vielheitsrecht’.
31
Gierke, Community, p. 243.
32
Gierke, Körperschaftsbegriffs, p. 823: ‘In der Erhebung der Stadt zur Person war nichts
Künstliches oder Fiktiv . . . Es war aber eine Abstraction, indem nur vermöge einer
solchen die Einheit in der Vielheit ersannt und als ein von der letzteren Verschiedenes
gesetzt werden sonnte’.
33
Gierke, Middle Age, p. 73.
34
Gierke, Körperschaftsbegriffs, p. 831: ‘Er ist aber andrerseits nur das letzte Glied in der
Reihe der zu Personen entwickelten Verbände’.
35
Gierke, Community, p. 162.
36
Ibid., p. 163. A clear account of the homologous character of the state and lesser
associations is given in Jonathan Chaplin, ‘Toward a social pluralist theory of
institutional rights’, Ave Maria Law Review, 3 (2005), pp. 147–170, at pp. 151–159.
192 Part II
binding agreements that exist between its organic constituents, and it

accepts these agreements as irreducible elements of its own constitu-
tional fabric: indeed the state has no constitutional reality that can be
distinguished from these agreements – these agreements are its consti-
tution’.37 As Gierke himself put it, it exemplified ‘the idea of a State
which existed only in the law and for the law, and whose life was bound
by a legal order that regulated alike all public and private relationships’.38
Individual or associated persons had no ‘private’ rights against the
state and equally the state had no ‘public’ rights against its constituent
parts. Thus sovereignty in the Rechtsstaat was genuinely popular.
As David Runciman explains, all ‘persons in the Rechtsstaat are public
parts as well as private wholes, and so no person can either be denied a
public function (i.e. reduced to the level of a subject), nor claim
the whole of public right as their own (i.e. raised to the level of a
sovereign)’.39 Its personality resided in the totality of its private and
public laws. It was, thought Gierke, the definitive social, political and
legal synthesis.
II. Gierke and Romanism

Why did the synthesis not hold? In line with the tradition at Göttingen,
Gierke targeted his ire at the malevolent foreign influences of Roman
legal thought, or ‘Romanism’, imported into Germany from the
Reception, which fostered both an atomistic individualism and the over-
weening power of the state. Romanism, Gierke argued, launched from
the thirteenth century a two-pronged assault on Germanism until the
latter was overwhelmed and eventually the ‘elimination of . . . intermedi-
ate bodies from political culture left only the absolute individual in
confrontation with the absolute state’.40 As we will see, Pufendorf’s
political thought and the idea of the state as being a moral person came
out, according to Gierke, of the Roman legal tradition.
The first attack on Germanism came from civil law. Civil law had
two conceptions of the group, societas and universitas. A societas or part-
nership could be formed for any legal purpose, although usually societates
were contracted for some commercial venture for which partners were
making an investment of capital or labour. However, it had no legal
37
Chris Thornhill, German Political Philosophy: The Metaphysics of Law (London, 2007),
p. 210.
38
Gierke, Middle Age, p. 73.
39
David Runciman, Pluralism and the Personality of the State (Cambridge, 1997), p. 53.
40
Mark M. Hager, ‘Bodies politic: The progressive history of organizational “real entity”
theory’, University of Pittsburgh Law Review, 50 (1989), pp. 575–654, at p. 583.
personality of its own, and socii were individually responsible for the
company’s liabilities and able to make claims on its profits. It had no
existence, then, outside those who composed it. More interesting for
Gierke was the universitas or corporation, which did have legal personal-
ity in Roman law. The corporation was considered as a single entity,
which could own property and was itself a subject of rights and capable of
action. However, although the corporation existed as a legal person apart
from the personalities of its members, it did not exist, to Gierke’s lights,
as a real, organic person. ‘Only a man’, on the Roman view of the world,
‘could be a real person, because only he was an individual, and only the
individual was a person’.41 Universitates were treated as persons by legal
fiction. ‘If a universitas, though not an individual in its real substrate, was
set forth as a person and so as an individual, then a non-existent fact was
given legal consideration as though it did exist’.42 The universitas existed
only within the framework of the law and not as a self-subsisting organ-
ism. As an entity that only existed as a creature of the public law it was a
real unity but not a person, and as a subject of private law it was treated as
a person by fiction but not as a real unity. Moreover, it was possible for
the universitas to be represented by one individual, whereas this was
impossible in the Genossenschaft, where no individual could stand apart
from it and take upon himself a wholly public persona. According to the
Roman law of corporations, a proctor might act on behalf of a corpor-
ation, but the members of the corporation as a body retained their own
intrinsic authority after the election of the proctor, and they could
adequately express the will of the corporation when they acted ‘collect-
ively’ and not ‘distributively’, that is, when they acted as a universitas and
not as individuals. For Gierke, corporation theory thus imported into
medieval thought a distinction ‘between the individual and the social
capacities of men’, between their private and public persons.43
Natural law Gierke also viewed as of Roman origin, and it too, par-
ticularly from the sixteenth century, began to tear into and tear down the
harmonious Germanist conceptions of the personhood of associations
41
Otto Gierke, Das deutsche Genossenschaftsrecht, vol. 3: Die Staats- und Korporationslehre des
Alterthums und des Mittelalters und ihre Aufnahme in Deutschland (Berlin, 1881), p. 103:
‘Eine wirkliche Person war nur der Mensch, weil nur er ein Individuum und nur das
Individuum Person war’.
42
Ibid.: ‘Wenn eine universitas, obwohl sie ihren realen Substrat nach kein Individuum
war, als Person und somit als Individuum gesetzt wurde, so lag darin die vom Recht
vollzogene Behandlung einer in Wirklichkeit nicht existenten Tatsache, als sei sie
existent’.
43
Gierke, Middle Age, p. 63. See the helpful discussion of Gierke on societas and universitas
in Louis Dumont, Essays on Individualism: Modern Ideology in Anthropological Perspective
(Chicago, 1986), pp. 72–76.
194 Part II
and the associative nature of human persons.44 First, natural law ‘could
not find the constitutive principle of the group in a natural process of
Growth, but in every case had recourse to the idea of Creation’. A divine
act of creation appeared as the source of all social groupings, directly
animating the most important of all of them, the ‘mystical body’ of the
Church.45 Second, the law that bound all in the universal community
announced by Christianity was reason, something which God and man-
kind alike shared. But if human beings possessed reason, they possessed
it in virtue of a concession from God; he had created us reasonable.
Reason did not therefore undergird the idea of a community in which
law had grown up organically; law had effectively been imposed on
people, top-down. Third, the theological system that stood behind nat-
ural law discourse – the Christian theology of the Roman Catholic
Church – was monarchical. Gierke’s critique here was advisedly circum-
spect. He considered that at some level Roman Catholicism had given
rise to a worldview that comprehended mankind as inhabiting something
corresponding to a universal Rechtsstaat. ‘In Church and Empire the
Total Body is a manifold and graduated system of Partial Bodies, each
of which, though itself a Whole, necessarily demands connexion with the
larger Whole. It has a final cause of its own, and consists of Parts which
it procreates and dominates, and which in their turn are Wholes’.46
Christianity promised to unify humanity in one community constituted
by God himself. All groups were divinely ordered to the same purposes,
but even within that world understood as ‘One Organism, animated by
One Spirit, fashioned by One Ordinance’, each individual being was
assigned its own place such that it was ‘a diminished copy of the World’,
and so the ‘self-same principles that appear in the structure of the World
will appear once more in the structure of every Part’.47 The organicism
that had characterised Germanism continued to animate the Christian
vision of the community of mankind. Despite appearing to sever this
community into two orders of life, spiritual and temporal, corresponding
to church and empire, medieval thought held within it the resources to
overcome this dualism. Man had two destinies, and it was the task of
earthly government to direct him to his temporal ends, while the Church
should make preparations for the eternal hereafter. Medieval writers were
not beholden to an anthropocentric organicism. The unity of the body of
mankind was ‘preserved by the existence of its Heavenly Head’, even if
‘in the mystical body under its one Supreme Head there may be parts
44
That natural law is Roman in origin is of course highly debatable. For justification, see
Gierke, Natural Law, pp. 35–40.
45 46 47
Gierke, Middle Age, p. 29. Ibid., p. 21. Ibid., p. 8.
which themselves are complete bodies, each with a head of its own’.48
True unity consisted not in ‘anthropocentric trappings’,49 but in the
coordination of parts by God’s Reason so that ‘all members must in their
functions supplement and support each other, never losing sight of the
weal of the others, and feeling pain in the harm that is done to another’.50
In spite of all this, however, the principle of rule on this account was
monarchical, and in this respect antithetical to the principles of the
Genossenschaft.
Creation, concession and kingdom were thus the dominant motifs of
Romanism in contradistinction to the emphases on organic growth and
the real personality of fellowships. The consequences, thought Gierke,
were cataclysmic. In respect of political theory, Romanism led ultimately
to the theory of the sovereignty of the ruler – a leading back, in some
sense, to the theory of the herrschaftlicher Verband. Natural law was
something to the postulates of which all individuals had access by virtue
of their faculties of reason or intellect, and according to the natural law
theory it was this access that made individuals into persons. This con-
ception of the relationship between personality and law made it,
according to Gierke, extremely difficult to conceive of the political com-
munity as itself a person, as a unified subject of rights. It was still the case
that arguments in political theory took their bearings from ‘the principle
that the essence of the Social Organism lies in Unity’, but it was concep-
tually very difficult now to predicate this unity of the group itself.51
The solution was to argue that all political communities must mirror in
their principle of rule the monarchical Christian kingdom, and then in
a further move predicate the unity of the group on the unity of the
‘Governing Part’, the monarch.52 Gierke traced to Dante Alighieri
(1265–1321) a further development of the argument, ‘that the unifying
principle of Bodies Politic is Will, and that, for the purpose of presenting
a Unity of Wills the governing and regulating Will of some one man is
plainly the aptest mean’.53 Reason was the same for all alike; but
48
Ibid., pp. 22–23.
49
A point emphasised in the discussion in Maximilian Koessler, ‘The person in
imagination or persona ficta of the corporation’, Louisiana Law Review, 9 (1949),
pp. 438–449, at p. 448.
50 51 52
Gierke, Middle Age, p. 25. Ibid., pp. 31–32. Ibid., p. 32.
53
Ibid. The relevant passage in Dante’s Monarchia (composed sometime between
1308 and 1318), not quoted by Gierke, reads: ‘all concord depends on the unity which
is in wills; mankind in its ideal state represents a kind of concord; for just as one man in
his ideal state spiritually and physically is a kind of concord (and thus the same holds true
of a household, a city, and a kingdom), so is the whole of mankind; thus the whole of
mankind in its ideal state depends on the unity that is in men’s wills. But this cannot be
unless there is one will which controls and directs all the others towards one goal, since
196 Part II
experience showed that our wills are often divergent. Therefore, if bodies
politic are to be unified, the appropriate level to focus on was that of will:
‘social order depends on a sub-et-super-ordination of wills, as natural order
upon a sub-et-super-ordination of natural forces’.54 Baldus (1327–1400)
later made it very clear that the notion of group-personality had vanished.
When an emperor dies, he said, any jurisdiction he had delegated ceases
immediately, for, in Gierke’s words, ‘the Will which is expressed in the act
of delegation is the Emperor’s, not the Empire’s, for the Empire has no
Mind and therefore no Will . . . Will is a matter of fact; and mere matter of
fact [is to be] distinguished from matter of law’.55 Evidently a chasm had
opened up between the ruler and the populace, and the legal personality
that should have encompassed both had fallen into it. Law, having previ-
ously been identified with reason, was now a matter of sovereign will.
Having dealt with the problem of sovereign authority, natural law
theorists, wrote Gierke, dealt with the problem of controlling that sover-
eign authority by working a division between positive and natural law.
Positive law was identified with ‘the expressly or tacitly declared Will of
the Ruler’, which placed him ‘before and above’ all statutes made by him
or his predecessors.56 Natural law, on the other hand, was implanted by
God in natural reason for the attainment of earthly ends, and even a
sovereign could not legitimately contravene it. Corresponding to the two
spheres of law were two kinds of right. A right conceived to fall within
positive law was considered to be a ‘concession’ of the state. Natural
rights, however, constituted claims even against a sovereign. Like all
rights, they presupposed a subject, and the subject of a right could only
be a person. The natural law theory of the state, then, in its earlier
incarnations, divided the state between the personalities of the citizens
and the personality of the ruler; if ‘the people’ was called a person, then it
was ‘a merely collective conception’, comprising individual owners of
natural rights, the people ‘made co-extensive with the sum of its constitu-
ent units’.57 The organic analogy was applied ‘to the impersonal fact of
the connection of the parts’ and ‘to the equally impersonal fact of a
system of common control for maintaining that connection’, but not to
the ‘personal factor of a system of a controlling group-personality’.58
The state was thus a ‘bloodless category’ because it was not a real person
in its own right.59 The natural law theory of the state in its ultimate
incarnation represented the very antithesis of the Genossenschaft.
the wills of mortals require guidance on account of the seductive pleasures of youth’. See
Dante Alighieri, Monarchia, trans./ed. Prue Shaw (Cambridge, 1995), pp. 41–43.
54 55 56
Gierke, Middle Age, p. 139, n. 108. Ibid., p. 70. Ibid., p. 77.
57 58 59
Gierke, Natural Law, p. 52. Ibid. Ibid., p. 56.
Hobbes’s person of the state, according to Gierke, was this ultimate

manifestation of the theory. Hobbes argued with ‘remorseless logic’ and
‘Radical Audacity’ that all individuals in a state of nature had a natural
right to everything. Because nobody’s life was safe in such a condition,
reason dictated that each person contract to submit to a common ruler
who ‘takes no part in the making of the contract’. All public right is
absorbed by this one individual or assembly, which retains a natural right
to everything:
[Hobbes] had extended the idea of Natural Right until it meant the right of all to
everything, and he had done so in order that it might perish, as a right of all, from
the very abundance of its own strength, and then, surviving only in the form of a
jus ad omnia left in the hands of a single man, or single body of men, might proceed
to convert itself into mere naked power. He had made the individual omnipotent,
with the object of forcing him to destroy himself in virtue of his omnipotence,
and thus enthroning the ‘bearer’ of the State-authority as a mortal god.60
The state-person created by Hobbes’s contract ‘cannot be any other than

single’.61 Its representative is more than the head, he is the very soul of the
state-body; it speaks and acts only through him, and whatever he says and
does is done in the name of the state. Hobbes’s Leviathan encapsulates
the very opposite of the Germanist tradition. It exists by fiction of natural
law, sustained entirely by the artificial person of the sovereign, and the
real persons that are its subjects have become a single dumb author of
everything that is said and done in their name. Whatever legal personality
individuals or groups possess within the state is theirs only by concession
of the sovereign. Corporations can only exist in Hobbes’s state if they are
authorised by the sovereign so that they are mere ‘persons in law’.62
The ‘personality of an association comes into existence only by a juristic
artificiality, by virtue of which the association assumes in law an attribute
which it lacks in reality’.63
60 61
Ibid., p. 61. Ibid.
62
See the outstanding discussion in Runciman, Pluralism, pp. 6–33, esp. pp. 24–31. Before
1832 in Britain, corporate status was only possible through special statute or royal
charter.
63
Gierke, ‘Human associations’, p. 141. One of the points that Gierke wanted to make in
his less historically-focused essays is that because incorporation was now, in the
Hobbesian era, a monopoly of the state and based on fiction of the law, corporations
(most of them capitalist concerns) could and often did escape liability for crimes and
torts because they claimed to lack mens rea. See Hager, ‘Bodies politic’, pp. 585–587;
also Ron Harris, ‘The transplantation of the legal discourse on corporate personality
theories: German codification to British political pluralism and American big business’,
Washington and Lee Law Review, 63 (2006), pp. 1421–1478, at p. 1429. This was plainly
immoral as far as Gierke was concerned. ‘The juristic person of our [old Germanic] law
is not a mute creature requiring a legal representative, but a subject acting for itself in the
198 Part II
III. Gierke, Pufendorf and the Moral Person of the State

In Hobbes, group-personality is made to reside in the fact that when the
multitude cedes power in a single act and by one voice they create a
sole person that is thereafter sustained entirely by its representative.
But Hobbes was not the end of Gierke’s story of the natural law theory
of the personhood of groups and of the state: the next major figure to
feature in it was Pufendorf, and Pufendorf sets the terms for the narra-
tive’s culmination. Pufendorf, in Gierke’s eyes, battled valiantly to save
the ‘Fellowship basis’ of group-personality, but ultimately he failed, and
his failure did as much to bury the idea of the Genossenschaft as did
Hobbes’s more wilfully intended offensive.64
Gierke viewed Pufendorf as doing no less than ‘entering into a new
world of thought’.65 This was the world of moral entities, and in particu-
lar the world of one kind of moral entity, the moral person. Gierke’s
account of moral entities in general paraphrased Pufendorf closely: they
are ‘only attributes (modi)’ ‘ascribed by rational beings to physical objects
and movements, in order that they might operate with a directing and
moderating influence on the freedom of human will, and so regulate
human life harmoniously’.66 He then moved to characterise the most
important of these moral entities, namely, the moral person. That to
which Pufendorf ‘gave the name persona moralis’, Gierke said, ‘distin-
guished the conception of legal personality . . . from the conception
of natural personality’.67 Rather than pause here to take stock, let us
continue to follow Gierke’s argument, as it is crucial to how the moral
person of the state would go on to be understood. From his account of
Pufendorf’s conception of moral entities Gierke further reported that
‘there emerged as entia moralia ad analogiam substantiarum conceptae
[moral entities analogous to the concept of substance], the personae
morales attributed to human beings under a system of legal order’.68
Moral personality on Gierke’s account of Pufendorf is therefore about
the attribution of rights, which is what any legal order does. Rights must
inhere in something, which is the only reason why, to Gierke’s mind,
Pufendorf stressed the substantial aspect of persons. An individual
external world. It is capable of conducting its own affairs. It is also – and this will be
stubbornly denied by the fiction theory . . . capable of wrong and answerable for its
offences’. The Roman law inheritance literally allowed capitalist enterprises to get
away with murder, a pretty inauspicious setback for personal liberty in a competitive
capitalist society.
64 65 66
Gierke, Natural Law, p. 118. Ibid., p. 120. Ibid., p. 119.
67 68
Ibid., p. 118. Ibid., p. 119.
human being, furthermore, can bear several legal personae in his or her
one substance, and a group of individuals can also become a legal person
‘when a single will, and with it a definite sphere of rights, is ascribed to a
multitude of individuals duly and properly united’ so that these rights
abide in one body.69
Gierke considered that Pufendorf had made two great strides towards
resuscitating the fellowship basis of the state. First, the composite moral
person described by Pufendorf had a ‘constituent and creative charac-
ter’.70 By this, Gierke meant that a moral person could, on Pufendorf’s
account, be brought into being ‘by a simple conjunctio hominum’ without
any further stage, such as the appointment of a representative organ to
act on its behalf.71 The act that brought Hobbes’s person of the state
into being was the act of authorising a representative, so that a group-
person is generated and utterly enervated at the same moment of cre-
ation, and thereafter the only groups within the state that may count as
persons are persons by concession, and therefore mere shadows of per-
sons. Pufendorf’s composite moral persons, by contrast, can exist and be
legally recognised solely on the basis of individuals having entered into a
contract of union. Second, ‘individual persons and Group-persons have
both the same sort of existence’, both having accepted to perform in a
particular legal role and having that role and the performance of it
acknowledged by other moral persons, individual and incorporated.72
Pufendorf could thus ‘drive firmly home the principle that the corporate
person must be conceived as a “Subject” of rights, which willed and
acted with the same unitary quality as a single person’.73
It will surely come as no surprise to learn, however, that Gierke finally
considered that Pufendorf had succumbed to the tendencies of ‘antique-
modern’ thought – of Roman theory come again to confound
Germanism. For in the end Pufendorf achieved nothing more than
‘a purely formal assimilation of the group-person to the individual’.74
As soon as the real basis of the attributes of willing and acting for the
group-person had to be defined, the natural person of the individual was
the model. Group-personality ‘became engulfed in the personality of [its]
representative’, so that the group ‘wills and acts only through its repre-
sentative’.75 The group did not attain ‘real’ personality until it was
represented, so that the composite moral person is not in the end real
in and of itself. Pufendorf’s worldview was as individualistic and as
inorganic as Hobbes’s.
69 70 71 72 73
Ibid. Ibid., p. 118. Ibid., p. 312. Ibid., p. 119. Ibid., p. 120.
74 75
Ibid. Ibid., p. 120 and p. 173.
200 Part II
Behind the persona moralis simplex there stood, after all, the living natural person
of the individual, drawing to himself, as persona physica, the attribute of
personality; but the persona moralis composita had to find its basis, not in a real
Whole, or a living community, but in the artificial outcome of contracts by which
individuals had bound themselves to one another . . . A unity thus interpreted in
terms of the rights of individuals was in the last analysis only a deceptive sham:
closer examination reduced it to fragments, and resolved it into a mere sum of
legal relations between individuals.76
When Pufendorf came to the subject of the state, its personality only
became real when a single person who could will and act as a solitary
unit represented the associated individuals. In the end, then, Pufendorf
‘approximated, after all, pretty closely to Hobbes’.77
Pufendorf’s failure was made all the more poignant for Gierke because
he had gone wrong when attempting to formulate a theory of human
association fit for the Holy Roman Empire. The empire as it had existed
both before and after the Treaties of Westphalia should have, according
to Gierke, provided an example of the organisation of political life recal-
citrant to the Hobbesian interpretation of the state. Certain ‘publicists of
the Holy Roman Empire’ made the ‘indestructible germ’ of the idea of
the old imperium mundi ‘yield the new and fruitful idea’ of federalism.78
Here, he claimed, was an opportunity for natural law to vindicate itself to
a limited extent, at least from the perspective of popular sovereignty if not
the single organic personality of the state. Subjects of sovereign states
might be able to appeal against their sovereign to a higher authority
acting as an arbiter of positive law on the basis of natural law. Yet even
this was not to be. Its principal pre-Hobbesian exponent, Hugo Grotius,
‘glide[d] insensibly into the use of terms and ideas drawn from the law of
corporations’, so that the kind of federal character he wished to impute to
polities like the Holy Roman Empire and the United Provinces began to
harden into an entity so single that the lesser associations effectively
dissipated. ‘Whether the inviolability which he vindicates for the several
States,’ wrote Gierke, ‘can in any way be combined with their inclusion
in a union of so corporate a character is a question which [Grotius] left
unanswered’.79 Gierke’s answer was that, in Grotius’s terms, it could
not. After Grotius, the next and last major theorist of the Holy Roman
Empire as a federal combination of states, according to Gierke, was
Pufendorf. Pufendorf had developed his whole notion of a ‘composite’
moral person because, Gierke surmised, he had wished to describe the
Empire in similar terms as a ‘composite state’, the endpoint of an
76 77 78
Ibid., p. 120. Ibid., p. 118. See also p. 181. Ibid., pp. 85–86.
79
Ibid., p. 86.
ascending series of fellowships. Just as in the end the personalities of the

territorial states were dissipated by representation, there could also be no
supra-territorial entity that bore the totality of the rights-subjectivities
subsisting below it and which made those the ground of its own legal
personality. Pufendorf was forced to explain away those ‘intermediate
formations’ that existed ‘in actual life, if not in theory’ as ‘monstrous’ and
‘irregular’.80 The real pity, for Gierke, was that there was in Germany at
the time that Pufendorf wrote something approaching, at least in the
externals, the form of a climbing progression of ever-wider Genossenschäf-
ten. It had managed to survive the various revolutions in thought
described above; alas, modern writers had lost the theoretical lenses
through which they might have been able to see it. Pufendorf made a
gallant attempt to describe it, but the attempt miscarried, and his
authoritative text only made it harder for others to discern the residual
fellowship basis of the German Empire afterwards. ‘After Pufendorf had
once rejected the notion of a “composite State”, in the form in which it
had been developed on the basis of the positive law of the Holy Roman
Empire, it became the orthodox, and we may almost say the unques-
tioned, view in the School of Natural Law that a State which stood above
other States was an impossibility’.81 When the composite polity model
was used, by the likes of Pütter, in order to characterise the empire,
it appeared, with its one head shared by several bodies, only as a
‘withered corpse’.82
It remains, before we come to the critical analysis of Gierke’s reading
of Pufendorf, to outline what he called ‘the peculiar fate which befell the
original genius of Pufendorf’.83 The genius, it seems, had everything to
do with Pufendorf’s concept of the persona moralis, and it is with the story
of the persona moralis that Das deutsche Genossenschaftsrecht closes.
We witness a parade of names, now obscure to a man: Johann Nikolaus
Hert (1652–1710); Gottlieb Gerhard Titius (1661–1714); Nicolaus
Hieronymus Gundling (1671–1729); Franz Schmier (1680–1728);
J. G. Daries (1714–1791); Daniel Nettelbladt (1719–1791); August
Ludwig von Schlözer (1735–1809); and Johann Christoph Hoffbauer
(1766–1827). Along with Wolff and Kant (the Swiss Vattel and the
Scottish writers that we encountered in Chapter 4 are missing from this
otherwise compendious account), all designated legally recognised
groups, including the state, as moral persons. For all of them, wrote
Gierke, this allowed a ‘new and vigorous expression [of] the distinction
80 81
Ibid., p. 197. Gierke, Natural Law, p. 196.
82
Otto von Gierke, ‘The idea of federalism’, in Gierke, Genossenschaft-Theory, p. 130.
83
Gierke, Natural Law, p. 121.
202 Part II
which Pufendorf had drawn between legal and physical personality’: all
legal persons were moral persons, even if they were not real, physical,
persons.84 Thus Pufendorf’s theory of personae morales ‘ceased to be used
by his disciples as the foundation of a general philosophy of Law, and it
was only used as a way of explaining a number of legal phenomena which
obstinately refused to be brought into line with the facts of the material
world’, such as the ownership of property by a group of people.85 ‘It now
stood by the side of the living individual as an abstract mental scheme,
which had the one merit of enabling thinkers, when they were dealing
with certain species of legal connections between individuals, to provide
a single centre on which such connections could converge’.86 Internally,
the existence of every group called a moral person ‘is reduced to the
mutual legal relations of its members; and the “moral personality” is only
a formal conception which serves to indicate, as a shorthand expression,
certain legal results involved in these relations of connection’.87 The
moral person, then, ‘degraded into a noun of assemblage, and the
common will into a sum in arithmetic’.88 It was, quite simply, the most
individualistic conception of group-personality in the history of western
thought. ‘The existence of the “moral person” is thus only a fact because
it coincides, and to the extent that it coincides, with the existence of
individuals; and the unity of will and power in a Group-person is only a
reality because, and only a reality in so far as, individuals are actually
willing and acting as one, either on the Collective basis of unanimous
agreement, or the alternative basis of Representation by a single person
or body’.89 Externally, however, it had a ‘sort of technical value’ as a term
of art making it possible for a group to be treated as a single individual in
an area of action common to several groups, and inasmuch as the state in
particular was designated as a moral person after Pufendorf, it had
nothing to do with the state’s internal life, and only applied to the state
in its external actions, where the term expressed the state’s identity as the
voluntary subject of certain conventions (and they were nothing more
than that) of conduct.90
Pufendorf’s moral person of the state, on Gierke’s interpretation, is
nothing but a legal person, and a legal person cast in antique-modern
garb, and therefore a mere fictional person. The major difference
between Hobbes and Pufendorf on the state is one of intention.
Hobbes set out, according to Gierke, to configure the state as a fictional
person, whereas Pufendorf arrived at the same conclusion by inadver-
tence. But the outcome of the theories was the same, and Leviathan and
84 85 86 87 88
Ibid., p. 121. Ibid. Ibid. Ibid., p. 136. Ibid., p. 127.
89 90
Ibid., pp. 135–136. Ibid., p. 124.
the moral person of the state are, in effect, the same person. Both
characterisations – of the moral person of the state as synonymous
with the Hobbesian Leviathan, and of both of these as fictional persons –
have stuck, and we can sense Gierke’s influence in this connection.
We have seen in the Introduction to this book that Skinner’s genealogy
equates the persona ficta and the persona moralis of the state.91 The influ-
ence of Gierke is also to be found more widely, lurking behind practically
every discussion of Pufendorf and his theory of the state as a moral
person. The equation of persona moralis with legal person in Pufendorf,
supported with a reference to Gierke, is to be found, for instance, in the
writings of the leading historian of public law in Germany, Michael
Stolleis;92 in an important book on the creation of modern international
law;93 and in a text on international ethics.94 If it were true, it would
bleed Pufendorf of much of his originality. But true it is not.
It will be obvious what the first critical point that I want to make about
Gierke’s interpretation of Pufendorf will be. For Pufendorf, moral per-
sonality did not in fact equate to legal personality. A moral person,
I argued in Chapter 2, was said to be any role that an individual or group
thereof assumed, all roles being founded on, built out of and given shape
by the faculties and capacities of natural human beings. Moral persons
were the substance of the moral world, free individuals in association
with one another assuming the offices requisite and beneficial to their
association, whether as individuals or as cooperative ventures. Legal
persons, to be sure, were moral persons, but moral persons were not all
legal persons. Being a wife or an ambassador or a teacher, or a family or a
church or a state, meant, without a doubt, assuming an array of duties
and taking on a set of rights within a legal framework. A wife entered
into a contract to obey her husband;95 an ambassador who passed state
secrets to a foreign country would face criminal prosecution in a court of
law if his treason were discovered. But these roles, offices and institutions
were not centres of willing and action within a merely legal matrix.
91
Also see Skinner, ‘State of princes’, p. 407, where Pufendorf’s world of moral entities is
characterised in Gierkean terms as one in which ‘we agree to follow a common life and
regulate it by the rule of law’.
92
Michael Stolleis, Public Law in Germany, 1800–1914 (New York, 2001), p. 337; Michael
Stolleis, The Eye of the Law: Two Essays on Legal History (Abingdon, 2009), p. 60.
93
Stéphane Beaulac, The Power of Language in the Making of International Law: The Word
Sovereignty in Bodin and Vattel and the Myth of Westphalia (Leiden, 2004), p. 140.
94
Daniel Warner, An Ethic of Responsibility in International Relations (Boulder, CO, 1991),
p. 69.
95
For Pufendorf on gender, see Maria Drakopoulou, ‘Samuel Pufendorf, feminism and
the question of “women and law”’, in Feminist Encounters with Legal Philosophy, ed. Maria
Drakopoulou (Abingdon, 2013).
204 Part II
They were also centres of willing and action in a social, political and
economic world served by law but which by no means existed for the sake
of law. Moral persons accrued a range of statuses and responsibilities that
were purposeful or logistical or ethical in all sorts of respects having
nothing to do with law. Pufendorf’s use of the term moral was undeniably
pretty idiosyncratic. Ernest Barker, the English translator of the part of
Das deutsche Genossenschaftsrecht that discussed Pufendorf, pointed this
out in his introduction to the volume. ‘Here [in speaking of moral
personality] the word moral is used in much the same sense as when
we speak of a moral certainty or a moral victory. We need not quarrel
with the usage, provided that we are clear that it is peculiar’. But Barker,
following Gierke, imagined that Pufendorf’s usage ‘belongs exclusively to
the sphere of law’.96 This was far too quick. A moral certainty is a legal
term but not exclusively, and a moral victory is no legal term at all.
‘Moral support’ is another ‘peculiar’ use of the word, and Barker might
have listed that too, were it not that it would further have undermined his
attempt to impute a legal veneer to it. Pufendorf’s use of the word moral
is peculiar not because it is a synonym for ‘legal’, but because it is
difficult to find any term that might be synonymous with it; ‘institutional’
is perhaps best, but it is still not especially apposite. The term has to
be understood, as Gierke did not understand it, in the context of
Pufendorf’s system of thought rather than as a term of art in a contribu-
tion to a centuries-long debate.97
As well as this category mistake, there is also a considerable irony in
Gierke’s critique of Pufendorf. For Gierke came closer than just about
any other commentator on Pufendorf to recognising that sovereignty in
the composite moral person of the state was facultative, and that there-
fore it was both constitutionally circumscribed and designed to pertain
especially to the composite polities in which Gierke showed such an
interest. There is little trace of the more nuanced interpretation of
Pufendorf in the fourth volume of Das deutsche Genossenschaftsrecht, and
for it we must turn to the book he produced before his work on it had
commenced, his study of the political thought of Johannes Althusius,
published in 1880. In contradistinction to the tendency, evident in much
of the contemporary secondary literature and in Gierke’s later text, to
ascribe to Pufendorf an absolutist theory of sovereignty, in this book
96
Ernest Barker, ‘Translator’s introduction’, in Gierke, Natural Law, p. lxiii.
97
Barker found Pufendorf’s terminology especially unhelpful as it encouraged ‘a confusion
of thought which turns the “moral person” into something ethical and good’, when in
fact it ought not to import any change of sense at all from ‘legal person’; see Barker,
‘Introduction’, p. lxv. Warner, Ethic of Responsibility, p. 60, also considers that persona
moralis confuses ‘a legal term with a moral term’.
Gierke understood that Pufendorf sought ‘to prove that the supreme
power is by no means necessarily absolute but on the contrary admits
of constitutional limitations’.98 A sovereign, he reported, ‘may, without
losing his sovereignty, be bound by contract to ask the consent of the
people or its assembly of deputies to certain acts’.99 A monarch may
even have ‘not the full liberty to summon or to dissolve the assembly of
the people or its representatives, to make propositions to it or to reject
its acts’.100 And yet, wrote Gierke, Pufendorf had not thereby diminished
sovereignty:
But according to Pufendorf’s arguments the imperium limitatum remains an
undivided and undiminished sovereignty only when, despite constitutional
restraint, the will of the State is in the last resort exclusively represented in the
free will of the ruler, so that the State wills and acts only through the ruler (omnia
quae vult civitas vult per voluntatem Regis), and the effect of his will and act is
conditioned only in certain definite respects by certain provisions (conditio sine
qua non).101
However, Gierke contended that Pufendorf’s theory of sovereignty

was finally too indebted to that of Hobbes to allow real constitutional
restraints on a sovereign. He argued that those ‘certain provisions’
were never taken seriously at all by Pufendorf. The reason is that for
Pufendorf ‘every actual division of powers among several persons or
assemblies is contrary to the nature of the State, as sovereignty, like the
soul, is one and undivided (unum et indivisum) and parts are distinguished
in it only in the same sense that faculties are distinguished in the soul’.102
We have seen above that Gierke recognised a strong identification
between will and sovereignty in the history of political thought since the
medieval period. Because Pufendorf had so explicitly associated the will
of the state with the will of the sovereign, Gierke seems to have assumed
that Pufendorf followed in this line. Therefore, the provisions that he
enumerated against absolute sovereignty were no real bar to it, for the
sovereign’s will was the only one that counted. Indeed, any real division
of powers would result in ‘an irregular and monstrous formation’.
‘Pufendorf’s doctrine of sovereignty’, therefore, was ‘the offspring as it
were of a moderate and enlightened absolutism’.103
Unfortunately, Gierke had failed to grasp that Pufendorf’s facultative
sovereignty marked an application of Jesuit faculty psychology, which we
encountered in Chapter 1, to the level of the composite moral person of
the state. Accordingly, those ‘certain provisions’ for acts of sovereign will
98
Otto von Gierke, The Development of Political Theory, trans./ed. Bernard Freyd (London,
1939), p. 173.
99 100 101 102 103
Ibid. Ibid. Ibid. Ibid., my emphasis. Ibid.
206 Part II
could only be the requisites for action posited in this theory of free
human will and action, and these requisites therefore had to include
some reason supplied by the intellect for an act of will. As faculties are
distinguished in the soul, so sovereignty, as we saw in Chapter 2, is a
shared exercise of reason and will for Pufendorf. What is more, because
the intellect of the composite moral person is an assembly of deputies
of the people, whose job it is to restrain sovereign acts of will by
holding them up to locally acceptable canons of rationality, Pufendorf
had actually provided a partially ‘organic’ conception of the body politic.
Stipulations of reason were intersubjective and alterable, not altogether
top-down ordinances. And, finally, Pufendorf did not think that a div-
ision of powers in the state was indicative of monstrosity. As we have
seen, his point was that the Holy Roman Empire appeared monstrous
from the perspective of the regular Aristotelian categories of monarchy,
aristocracy and democracy, so that what was required was a new category
with which to make sense of the empire. Pufendorf’s problem was to
show how a composite state could yet be an agent, that is, possessed of a
sovereign will. The facultative model offered, in some sense, a model of
the composite soul, which could be deployed to solve the problem.
Pufendorf’s theory of sovereignty was, as we saw clearly in Chapter 4,
a theory conceived with the composite polity in full view as the problem
requiring a solution: it was a theory of sovereignty just as applicable to
composite as non-composite polities. Pufendorf had reinstated that
‘mind’ to empire that according to Gierke had been lost in the prolonged
death of the Genossenschaft and the identification of the principle of unity
in the polity with the will of the sovereign, a theory of the mind of a polity
that showed how one state might be composed of others. By rights,
Pufendorf should have been Gierke’s hero rather than his adversary.
***
This chapter has outlined Otto von Gierke’s philosophical history of the
passing of an authentic German legal tradition. At the end of the history
stands the figure of Pufendorf, the Teutonic reincarnation of Hobbes,
whose theory of the state as a moral – meaning a fictional or legal –
person marks its demise. Gierke’s argument was that Pufendorf’s state,
like Hobbes’s, was a persona ficta, a mere legal person, only existing by
fiction of law, only perceptible when represented, and thus a wraith of the
real personality of communities in the authentic German tradition.
We have come full circle, then, because Skinner’s genealogy of the
state-as-person in effect takes up the story with Hobbes and Pufendorf,
and it was with Skinner’s analysis that we began. Skinner wants to paint a
more positive picture of the fictional theory of the state than Gierke had.
‘While sovereigns come and go, and while the unity of the multitude
continually alters as it members are born and die, the person of the state
endures, incurring obligations and enforcing rights far beyond the life-
time of any of its subjects’.104 That, for him, was the innovation that
Hobbes pulled off in his theory of the state: the impersonality of the person
of the state means, for example, that ‘some government actions [may]
have the effect of binding not merely the body of the people but their
remote posterity’, and thus states can contract national debts to be repaid
over generations.105 The moral is different, but the account of the
fictional person of the state is the same as it was in Gierke. It is interesting
to note that when Skinner reflected a decade or so ago on the circum-
stances of his writing his classic work The Foundations of Modern Political
Thought he remarked that ‘Gierke was my Bible’.106 It is also interesting,
if probably incidental, to observe that the first footnote of Skinner’s
magisterial Reason and Rhetoric in the Philosophy of Hobbes is to Gierke.107
Gierke assimilated Pufendorf to Hobbes, and that assimilation remains
characteristic of the study of early-modern political theory. The Conclu-
sion will remind us what is problematic about it, and why Pufendorf is so
much more noteworthy than as a Continental Hobbesian epigone.
104
Skinner, ‘Genealogy’, p. 346. 105
Ibid., p. 363.
106
Skinner, ‘Surveying the Foundations’, p. 238.
107
Quentin Skinner, Reason and Rhetoric in the Philosophy of Hobbes (Cambridge, 1996),
p. 1n1. Also see Skinner, Liberty before Liberalism, p. 4.
Conclusion
Ernest Barker sent his translation of that part of Das deutsche

Genossenschaftsrecht dealing with the period 1500–1800 to his publisher
in 1933. It was a fateful year for the idea that states are persons. First,
it marked the rise to power of National Socialism in Germany. Gierke
himself was something of a German nationalist. For all his regret about
the decline from the heyday of the Genossenschaft, he nonetheless saw
much to celebrate from 1871 in the new Bismarckian state, with its
federal structure established on what he considered to be a recovering
fellowship basis, centred on nascent economic associations modelled
after the English co-operative movement. ‘That strength which has char-
acterised the Germanic people since the beginning of history and which
always rose victorious above all the vicissitudes of fate – the creative
power of association – lives on and is at work, more than in any
other people, in the German people of today’.1 Barker himself worried
that Gierke’s celebration of the ‘real personality’ of associations could
‘trend towards that very doctrine of the absolute State from which it
is supposed to be our rescue’; and as the German state came to be
conceived in völkisch and organic terms it became increasingly difficult
for Gierke’s ideal to win converts in the rest of the world.2
Second, 1933 was also a moment of consecration in international law
of what Gierke had considered to be the withered and diminished fic-
tional person of the state. Signed on 26th December, article 1 of the
Montevideo Convention on the Rights and Duties of States outlined that
the ‘state as a person of international law should possess the following
qualifications: (a) a permanent population; (b) a defined territory;
1
Gierke, Community, p. 5. Indeed, on p. 12 he goes so far as to write that ‘German
fellowship, reawaken after a death-like sleep to more vigorous life, has reached
fulfilment’. When the occasion called for it (such as the bestowal of an honorary
doctorate at Harvard), Gierke was prepared to grant the ‘Teutonic states’ of England
and America the same genius. See, e.g., Otto F. Gierke, ‘German constitutional law and
its relation to the American constitution’, Harvard Law Review, 23 (1910), pp. 273–290.
2
Barker, ‘Translator’s introduction’, p. lxxxiv.
208
Conclusion 209
(c) government; and (d) capacity to enter into relations with other states’.
The point of the Convention was to establish what is called the declara-
tive theory of sovereignty in international law, namely, as article 3 put it,
that the ‘political existence of the state is independent of recognition by
the other states’. But it also succeeded in establishing that statehood
exists within a legal framework and that the personality of the state is
relative to that framework, a matter of acting in accordance with a kind
of script. This became thereafter the sole palatable conception of the
personality of states.
There are other conceptions, however, besides Gierkean theories of
real personality, or Hobbesian or legalist theories of fictional personality,
of what it means for a state to be a person. These – or some of them at any
rate – have been the subject of this book. The main protagonist, of
course, was Pufendorf. He drew an analogy between the state – a con-
ceptual abstraction in any era, but never more so than in early-modern
Europe, when structures of rule and authority were being reworked in
theory and in practice – and the human person, something that each of us
has the experience of being. We might think, with Quentin Skinner, that
by his description of the state as a person he intended to signify precisely
what Hobbes had signified. I disagree with this, and I try to spell out my
reasons here in conclusion. And I also indicate some reasons for suppos-
ing that the difference matters.
Pufendorf could hardly have put his finger on a slipperier source
domain (as the social-scientific jargon calls it) for his analogical theory
of the state than the concept of person. For, in the first place, we do not
just experience ourselves as persons; we also experience ourselves as
selves, and as individuals, and as subjects, and as agents, and so on;
and the relation between our experience of any of these and our experi-
ence of being a person is by no means straightforward.3 In the second
place, as Amélie Oksenberg Rorty puts it:
there is no such thing as ‘the’ concept of a person. This is so not only for the
obvious historical reason that there have been dramatically discontinuous
changes in the characterization of persons, though that is true. Nor for the
equally obvious anthropological-cultural reason that the moral and legal
practices heuristically treated as analogous across cultures differ so dramatically
3
For instance, for Charles Taylor, the person is a ‘subclass’ of the self, while for Rom
Harré, the self is ‘not an entity’ but a ‘site from which persons perceive the world . . .
There are only persons. Selves are grammatical fictions, necessary characteristics of
person-oriented discourses’. See Charles Taylor, ‘The concept of a person’, in
Philosophical Papers, vol. 1, Human Agency and Language (Cambridge, 1985), p. 97;
Rom Harré, The Singular Self: An Introduction to the Psychology of Personhood (London,
1998), pp. 3–4.
210 Conclusion
that they capture ‘the concept’ of personhood only vaguely and incompletely,
though that is also true. The various functions performed by our contemporary
concept of persons don’t hang together: there is some overlap, but also some
tension . . . Disagreements about primary values and goods reappear as
disagreements about the priorities and relations among the various functions
that the concept plays, disagreements about what is essential to persons.4
The word person has a history of usages both continuous and discontinu-
ous with each other. It has variously meant, as we have seen, a face, a
mask, a role, a performance, an actor, a rational being, a centre of choice
and action, an autonomous agent, or a subject of rights and liabilities; it
has carried other meanings not touched on in this book. There are family
resemblances between these meanings, but no necessary and sufficient
conditions for the use of the term. It has served various purposes, and has
meant what writers and thinkers have variously used it to mean.
In commentaries on the analogy between the person and the state,
however, this last point has too often been forgotten. Hobbes was, to be
sure, the first writer to describe the state as a person; however, others
who followed him may have meant – and, as I hope to have shown, they
sometimes did mean – something different from him when they used the
term. Persons have been variously characterised and for multiple pur-
poses, and it ought to be the job of the intellectual historian concerned
with the history of the person-state analogy to try to find the precise
‘source domain’ – the kind of person with which the person of the state is
being matched – and the purpose for which it was plied.
It has not often enough been pointed out that Hobbes’s conceptual-
isation of personhood was unusual. He made much of the theatrical
lineage of the concept, but this disguised the extent to which he innov-
ated with it. When Hobbes described the state as a person, he analogised
it to an entity that in his technical terminology was always qualified
adjectivally. A person is one who speaks or acts, or one in whose name
speech and action takes place, and the answer to the question of who
owns or authorises the words spoken and deeds done is the answer to
the question of the kind of person with which we are dealing in any case.
There are natural persons who speak and act in their own names, and
artificial or feigned ones who have been authorised to speak and act for
others. Then there are also artificial or feigned persons by fiction who
speak and act in the name of someone or something that cannot own up
for what is said and done in their name, and those that Hobbes did not
name but which several of his commentators have productively called
4
Amélie Oksenberg Rorty, ‘Persons and personae’, in Mind in Action: Essays in the
Philosophy of Mind (Boston, MA, 1988), p. 47.
Conclusion 211
fictional, namely, the persons in whose name artificial persons by fiction

speak and act. Hobbes’s state is a fictional person, the person that we can
regard as authorising the words and actions that are spoken and enacted
by its representative in its name even though it cannot speak itself to
provide that authorisation. For Hobbes, there was simply no concept of
person to which adjectivally qualified instances differed merely adjec-
tivally; and the person of the state seems to be sui generis. Personhood
for Hobbes was about the attribution of words and deeds, and the ‘about’
here is critical: personhood circled around sayings and doings; sayings
and doings did not find some centre in a clearly defined concept of the
person.
Hobbes’s notion of the person is unusual because, although the mean-
ings attached to the term have proliferated since it was first used to name
a theatrical mask, and although it has been put to work in various
functions, it seems nonetheless that what these functions ordinarily have
in common is that they are each unifying functions. ‘Person’ describes the
autonomous chooser or the rational individuated substance or the pos-
sessor of powers, rights and liabilities. The concept ‘person’ has taken
shape amidst ‘a rich set of changing socio-technical practices which
distinguish human from non-human being and bring together religious,
legal, medical, ethical, civic, and socioeconomic taxonomies in a single
point’.5 Clifford Geertz puts this even more strongly when he writes of
‘the Western conception of the person as a bounded, unique, more or less
integrated motivational and cognitive universe, a dynamic centre of aware-
ness, emotion, judgment, and action organized in a distinctive whole and
set contrastively both against other such wholes and against its social and
natural background’.6 Pufendorf’s own understanding of the concept,
I would argue, fits in this unifying tradition rather than in Hobbes’s
idiosyncratic interpretation.
It fits into the tradition, I suggest, for two reasons. First, Pufendorf
operated with a general conception of the person on which all particulars
converged. Like Hobbes, Pufendorf certainly worked a division in the
concept of person, in his case between physical persons and moral
persons. Unlike Hobbes, however, one of these was the archetype for
the other: there was a generic concept of the person to which any more
specific or adjectival conception of the person still approximated.
According to Pufendorf, a physical person is an individual substance that
5
John Frow, Character and Person (Oxford, 2014), p. 69; emphasis mine.
6
Clifford Geertz, ‘From the native’s point of view: On the nature of anthropological
understanding’, in Local Knowledge: Further Essays on Interpretive Anthropology
(New York, 1983), p. 59; emphasis again mine.
212 Conclusion
is free and rational, and it is the physical person that provides the template
for personhood in a general sense. At first blush, his second category of
the moral person appears quite different. A moral person, he tells us,
is an office or role assumed either by an individual physical person or by a
group of them, and the moral person is a qualitatively distinct person
from the physical person or persons which sustain it. Moral persons,
Pufendorf says, are brought into existence by human invention and
agreement, for the purpose of regulating and directing human freedom
so that a given society established by human beings can be safe and
orderly, bringing benefits to its members and being a credit to the
Creator. But the difference in reality is not so great, and moral persons
are not simply conventional, for they must be analogous to physical
persons to count as moral persons. Moral persons must be capable of
rational freedom, because that is the crux of physical personhood, and
moral personae are derivative of physical ones. In order to be deemed as
persons at all, moral persons must partake of this capacity, for it is this
capacity that makes a person.
Second, Pufendorf’s conception of the person corresponds to the
tendency for the concept person to perform a unifying function because
personhood is said to follow from a single capacity, namely, that for
rational freedom. Rational freedom is of course a compound capacity,
requiring reason and will; but it is the relation between these faculties
that gives rise to that distinctive and compressed capacity that makes
persons. For Hobbes, although the concept of person revolves around
the capacity for speech and action, the capacity does not make for the
generic concept of a person, for fictional persons such as the state are
unable themselves to speak or to act, and only exist as persons when
others speak or act for them. For Pufendorf, the connection between
powers and personhood is much more straightforward.
Pufendorf’s state is a person, then, because it possesses intellect and
will, and these are so configured that the state can be regarded as
possessing the capacity for rational freedom. As a moral person, the state
exists because physical persons have established it in order to ensure their
security from each other and from external threats. But Pufendorf could
only call it a person at all because of its facultative constitution and the
capacity to which that constitution gave rise, both of which made the
state a person in the same way that physical persons, also bringing
themselves to will and act in the same way, were persons.
Pufendorf’s state is a person because the facultative constitution of its
soul gives the entire political body a capacity for rational freedom.
Hobbes’s state is a person because it is situated in a nexus of
representation of speech and action. I have so far shown how each was
Conclusion 213
putting to use some tradition of depicting the essentials of personhood, in

the case of Pufendorf a Christian tradition according to which persons
are individual substances capable of rational freedom, and in Hobbes’s
case a theatrical tradition going back to the Ancient Greeks. I want now
to take up yet another suggestion from Skinner to historicise more deeply
these different conceptions of the person of the state, as a necessary
prelude to spelling out why the contrast between these two theories has
really mattered. The suggestion is that Pufendorf’s theory of moral
entities is an ‘unusually extensive exploration’ of the world as depicted
by a ‘number of Renaissance philosophers of language’, who found a
special place in their systems for analogy.7 I think that this is right:
Pufendorf’s argument that the moral world must be understood in terms
of a set of analogies to physical substances of various kinds does make of
him a kind of Renaissance man. It is probably true that ‘a faculty for
analogical reasoning is an innate part of human cognition, and that the
concept of a sound, inferentially useful analogy is universal’.8 Concep-
tual historians are beginning to realise that the mental processes and
linguistic tropes of analogy and metaphor ought to be at the heart of
their enterprise, either because metaphorology might disclose something
important about the morphology of concepts (the ‘essentially contested
concept has with metaphor in common a shift from description or
reference to a “seeing as”’) or because ‘concepts entail a theoretical grid
within which they can be constituted’, which will be ‘a second order of
symbolic reality’ that must be decoded in terms of its metaphors and
analogies.9 However, intellectual historians interested in the figurative
matrices within which concepts are constituted must also be cognisant
that analogical reasoning is historical, in the sense not only that particular
analogies have their own histories but also that there have been ‘signifi-
cant historical changes in what has counted’ as valid analogical
reasoning, able to ‘warrant inferences about the world’.10 Between the
7
Skinner, ‘State of princes’, p. 407.
8
Dedre Gentner and Michael Jeziorski, ‘The shift from metaphor to analogy in Western
science’, in Metaphor and Thought, ed. Andrew Ortony, 2nd edn. (Cambridge, 1993),
p. 447. For the same point in detail, see George Lakoff and Mark Johnson, Metaphors We
Live By (Chicago, 1980).
9
‘Metaphorology’ is Hans Blumenberg’s term; see Hans Blumenberg, Paradigms for a
Metaphorology, trans. Robert Savage (Ithaca, NY, 2010). The first quotation is from
Frank R. Ankersmit, ‘Metaphor in political theory’, in Knowledge and Language, vol. 3,
Metaphor and Language, eds. Frank R. Ankersmit and J. J. A. Mooij (Dordrecht, 1993),
p. 156. The second: Elías José Palti, ‘From ideas to concepts to metaphors: The German
tradition of intellectual history and the complex fabric of language’, History and Theory,
49 (2010), pp. 194–211, at pp. 199–200.
10
Gentner and Jeziorski, ‘Metaphor to analogy’, pp. 447–448.
214 Conclusion
Renaissance and the early-modern period in Europe, the conventions

according to which the apprehension of similarity licenced further
extrapolation about nature were utterly transformed.
During the Renaissance, analogical reasoning was regarded not solely
as a tool or basic cognitive process to help illuminate the unfamiliar
by having recourse to helpful comparisons with something familiar;
analogical reasoning served, it was thought, to reveal real resemblances
between things in a world structured by those resemblances. Thus
Renaissance writers shared what William B. Ashworth, Jr., has called
an ‘emblematic world view’. Renaissance knowledge was a matter of
understanding the analogical universe by means of reading and interpret-
ing its similitudes. For example, as explained here by Paula Findlen,
quoting the botanist William Coles (1626–1662):
Rather than assuming that something is red ‘like a rose’, the shared quality of
redness alerts us to deeper commonalities between the rose and the object in
question. For this reason, roses as well as red geraniums were considered
particularly effective in halting a haemorrhage. Likewise peonies cured
headaches because their flowers resembled the shape of the cranium, as did
walnuts, which ‘have the perfect Signature of the Head’.11
Similarly, signs in the book of nature pointed to meeting points between

the terrestrial and celestial, so that the philosopher was an astronomer of
the earth and of water, and the astronomer a philosopher of air and fire:12
Astrological bonds and forces of sympathy unify all things in the lower world
under the rule of the higher; microcosm reflect macrocosm as man’s lesser world
mirrors the greater world of universal nature. Hidden symmetries and illegible
signatures of correspondence energize and symbolize a world charged with
organic sympathies and antipathies. The natural philosopher’s job is to break
these codes and uncover their secrets.13
Ashworth himself has studied sixteenth-century natural histories. In one

analysis of an entry in the History of Animals by Conrad Gesner
(1516–1565), on the peacock, we ‘encounter a discussion of all known
peacock adjectives and their origins, such as “peacock blue”, or the
Peacock River in India, or the “peacock stone”’. We also meet, he tells
us ‘peacock proverbs, peacock recipes, peacock medicines, and peacock
legends’:
11
Paula Findlen, ‘Empty signs? Reading the book of nature in Renaissance science’, Studies
in the History and Philosophy of Science, 21 (1990), pp. 511–518, at p. 512.
12
Massimo Luigi Bianchi, Signatura rerum: Segni, magia e conoscenza da Paracelso a Leibniz
(Rome, 1987).
13
Brian B. Copenhaver and Charles B. Schmitt, A History of Western Philosophy, vol. 3,
Renaissance Philosophy (Oxford, 1992), pp. 288–289.
Conclusion 215
Now, if what you seek is a collection of true statements about the peacock, or an
anatomical description, or the peacock’s place in a taxonomic scheme based on
physical characteristics, then you are bound to be disappointed by Gesner’s
account. But if you are interested in confronting, in one place, that complex
web of associations that links the peacock with history, mythology, etymology,
the rest of the animal kingdom, indeed with the entire cosmos, then you are
certain to be richly rewarded. Gesner believed that to know the peacock,
you must know its associations – its affinities, similitudes, and sympathies with
the rest of the created order.14
Affinity, similitude and sympathy – here we have three modes of resem-

blance between things. Foucault identified four: convenientia or agree-
ment, a relationship of contiguity; aemulatio or emulation, a relationship
of imitation; sympathia or sympathy, a relationship of proportion; and
finally analogia or analogy itself, a relationship of affinity or homology
between disparate things. Of these, Foucault supposed, analogy was the
most important. ‘In this analogy, convenientia and aemulatio are superim-
posed. Like the latter, it makes possible the marvellous confrontation
of resemblances across space; but it also speaks, like the former, of
adjacencies, of bonds and joints’.15 Pufendorf’s epistemological field
itself resembles nothing so much as the Renaissance episteme as recon-
structed by Foucault and others. Pufendorf’s world of moral entities is a
world of human imposition, to be sure – but it is a world where human
imposition always carries with it the similitudes of the book of nature.
The whole world, in fact, is inscribed in the one book, even if it is the
special role of mankind to write part of that book itself. The Renaissance
philosophies of language mentioned by Skinner are not distinct from but
part of all-encompassing philosophies of nature. ‘The relation of lan-
guages to the world is one of analogy rather than signification; or rather,
their value as signs and their duplicating function are superimposed; they
speak the heaven and the earth of which they are the image’.16
From the perspective of his century, the seventeenth, Pufendorf
appears to be something of a throwback. Hobbes, by contrast, was always
at the cutting-edge. The Protestant Reformation encouraged three ten-
dencies in thought to which Hobbes’s writings bear witness. First, as
James J. Bono has established, the new stress on God’s inscrutable will
and his absolute power, ‘unconstrained by the necessity of a single
rational order of divine ideas to create a world that reflected only that
one, ideal, rational order’, meant that the language of things came to be
14
William B. Ashworth, Jr., ‘Natural history and the emblematic world view’, in
Reappraisals of the Scientific Revolution, eds. Robert S. Westman and David C.
Lindberg (Cambridge, 1990), p. 306.
15 16
Michel Foucault, The Order of Things (New York, 1970), p. 20. Ibid., p. 37.
216 Conclusion
seen as ‘bespeaking a contingent natural order’, better grasped through

particulars than syntactic correspondences in the book of nature.17
Second, believers were enjoined to uncover evidence of God’s ongoing
activity, for if nature did not reflect the order and essence of the divine
mind, it surely then bespoke the manifestation of God’s continuous
working in the world. Third, the emblematic worldview and the inter-
connected symbolic order that it posited came to be conceived as idol-
atrous, doing violence to the truth of divine omnipotence, which if
it worked according to any pattern would do so mathematically or
geometrically rather than symbolically.18 Hobbes agreed with all of these
assessments. He maintained, in his debate with Bishop Bramhall during
1645, that ‘the power of God alone, without other help, is sufficient
justification of any action he doth’, and that in the case of God necessity
‘signifieth no more, than the power to do all things that he will’.19
He conceived of God’s causality in the created universe as constantly
working on, rather than with, even intelligent creatures:
A wooden top that is lashed by the boys, and runs about sometimes to one wall,
sometimes to another, sometimes spinning, sometimes hitting men on the shins,
if it were sensible of its own motion, would think it proceeded from its own will,
unless it felt what lashed it. And is a man any wiser, when he runs to one place for
a benefice, to another for a bargain, and troubles the world with writing errors
and requiring answers, because he thinks he doth it without other cause than his
own will, and seeth not what are the lashings that cause his will?20
And finally, as he wrote in chapter 45 of Leviathan, ‘Idolatry is to

worship by signes’.21
Hobbes was of course one of the chief exponents of the new post-
Renaissance natural science. Brian Vickers has summed up the trans-
formation in the Weltanschauung thus: ‘the rejection of the symbolic
dimension . . . the need to begin observation or classification direct from
nature, and not by correlation with some pre-existing matrix or category;
the assertion of differences, as between stars and plants, animals and
stones; the refusal to link them all in one grid as demanded by the system
17
See the powerful argument in James J. Bono, The Word of God and the Languages of Man:
Interpreting Nature in Early Modern Science and Medicine, vol. 1, Ficino to Descartes
(Madison, WI, 1995), p. 83.
18
James J. Bono, ‘From Paracelsus to Newton: The word of God, the book of nature, and
the eclipse of the “emblematic world view”’, in Newton and Religion: Context, Nature, and
Influence, eds. James E. Force and Richard H. Popkin (Dordrecht, 1999), p. 74.
19
Thomas Hobbes, The English Works of Thomas Hobbes, vol. 5, The Questions Concerning
Liberty, Necessity, and Chance, ed. William Molesworth (London, 1841), pp. 427 and
115.
20 21
Ibid., p. 55. Hobbes, Leviathan, chap. 45, p. 1038.
Conclusion 217
of correspondences’.22 For Hobbes and others like him, the world had
become stripped of symbolic significance. And for our purposes this
difference between the Pufendorfian and Hobbesian pictures of the
world matters especially because Hobbes’s conception of personhood
turned on the concept of representation, and the full import of this term
for Hobbes only becomes clear when attention is paid to the broad
epistemological context in which he worked. The cosmic play of agree-
ment, emulation, sympathy and analogy that bound together all existence
had been lost for him. There was no longer a web of resemblances
constituting the ether suspending objects and their signs. Words for
Hobbes had become completely conventional in a manner that they
simply were not for Pufendorf. They did not even primarily denote the
things of the world but were instead signs of thoughts. ‘But seeing names
ordered in speech (as is defined) are signs of our conceptions, it is
manifest they are not signs of the things themselves; for that the sound
of this word stone should be the sign of a stone, cannot be understood in
any sense but this, that he that hears it collects that he that pronounces it
thinks of a stone’.23 After all, even non-things can have names. ‘For as
these, a man, a tree, a stone, are the names of the things themselves, so the
images of a man, of a tree, and of a stone, which are represented to men
sleeping, have their names also, though they be not things, but only
fictions and phantasms of things. For we can remember these; and,
therefore, it is no less necessary that they have names to mark and signify
them, than the things themselves’.24 A linguistic sign can even become an
object for another sign, the object of a representation itself, for words are
‘Signes, by which wee make known, that wee conceive the Consequence
of one name or Attribute to another’.25 Therefore, to know anything at
all is not to know it by means of similarities and analogies but by means
of representation: of language as a representing medium. Foucault
expressed the upshot lucidly:
The signifying element has no content, no function, and no determination other
than what it represents: it is entirely ordered upon and transparent to it. But this
content is indicated only in a representation that posits itself as such, and that
which it signifies resides, without residuum and without opacity, within the
representation of the sign.26
22
Brian Vickers, ‘Analogy versus identity: The rejection of occult symbolism, 1580–1680’,
in Occult and Scientific Mentalities in the Renaissance, ed. Brian Vickers (Cambridge,
1984), p. 149.
23
Thomas Hobbes, The English Works of Thomas Hobbes, vol. 1, Elements of Philosophy, the
First Section Concerning Body, ed. William Molesworth (London, 1839), p. 17.
24 25
Ibid. Hobbes, Leviathan, chap. 46, p. 1080.
26
Foucault, Order of Things, p. 64.
218 Conclusion
Although the sign effaces itself before the object it signifies, the object
reveals itself without remainder in the sign.
This epistemological position is central to Hobbes’s theory of repre-
sentation and the fictional person of the state. For the epistemological
stance on representation is repeated in Hobbes’s political stance on
representation. Hobbes’s sovereign, as the sign of the state, represents
the state without residuum. The state is the person in whose name the
sovereign speaks and acts, but the state reveals itself without remainder
in its representative. Jens Bartelson has recently made something like
this point in his own genealogy of the modern state. Against Skinner,
who as we saw argued that Hobbes’s great achievement was to concep-
tualise a state that exists and endures as an entity that transcends both the
sovereign power and the subjects of sovereignty, Bartelson holds that
Hobbes’s person of the state is still ‘hard to disentangle from the natural
[or better: artificial] person of the sovereign’.27 I think he is right. Hobbes
seems to have been led by his person-talk to the destination that person-
talk typically leads, namely, to the identification of a point of unity. And
to quote a telling phrase from the crucial chapter 16 of Leviathan, ‘it is
the Unity of the Representer, not the Unity of the Represented, that
maketh the Person One’.28 The sovereign represents the person of the
state, but it is his unity that seems to ensure the unity of that person at a
given time: the personality of the state is caught up in the personality of
its representative. But there is an even more fundamental point, which
is that Hobbes’s concept of person, as one umbilically linked to repre-
sentation, is also intimately connected to his epistemology, in which signs
represent, as I have said, without remainder.
The contrast with Pufendorf is clear from the argument that I have
already made. It is a capacity for rational freedom that makes a
person on Pufendorf’s account, and Pufendorf was concerned to disag-
gregate this capacity across different institutions within the social body
of the moral person of the state, so that the state could not be absorbed
into the person of its sovereign. Pufendorf’s state is one moral person,
which comes into being by the consensus of a multitude to submit their
wills to the will of one. But although willing with one mind makes the
state one person, the grounds of such willing in a properly constituted
state must remain a matter of intellectual cognisance and judgment,
the capacity for each of which is not alienated with the institution
of sovereignty. Pufendorf, as Bartelson writes, ‘located the sources of
[sovereign] agency in the state as a whole’ in a more thoroughgoing
27
Bartelson, ‘Sovereignty’, p. 89. 28
Conclusion 219
manner than had Hobbes.29 We can also see the contrast from the
perspective of the opposing epistemological fields of Hobbes and
Pufendorf. Pufendorf’s moral person of the state is one of many moral
entities as well as one person among many. Both moral entities and
persons, existing as they do within an overarching system of correspond-
ences and analogies, speak of a unified language of all things in which the
book of nature is written. Things are linked in a vast tropological network
and they make constant reference to their associates within that network.
Things simply cannot be represented without remainder by their signs in
such a view of the world.
We have, then, two important and rival theories of the modern state by
the end of the seventeenth century. I agree with Skinner that ‘we can
scarcely hope to talk coherently about the nature of public power without
making some reference to the state as a fictional or moral person distinct
from both rulers and ruled’.30 But I think that we have to draw a
distinction between theories of fictional and moral personality of the
state, and it has been my claim that the moral-person theory describes
the state as an abstract entity separate from ruler and ruled more consist-
ently than does Hobbes’s theory of the fictional person of the state. If the
abstraction from territory, population and government is what gives rise
to the concept of the modern state that we have inherited, then it is to
Pufendorf that we owe the concept. It is this abstraction, I have argued,
that allowed the state to be emplotted as a subject in its own right in
international law and ethics, and moreover as a complex subject, such as
a composite polity or one in which sovereign powers are divided between
different agencies.
I want to make a further point about the contrast between Hobbes’s
fictional person and Pufendorf’s moral person of the state and the impli-
cations of maintaining the usefulness of the distinction. It is that Pufen-
dorf’s theory permits us to see the state more vividly than does Hobbes’s.
Hobbes’s fictional person of the state is, as I have remarked above, in a
class by itself, while Pufendorf’s moral person of the state is one moral
person among many, all moral persons being conceived as analogous to
physical persons. As difficult as the analogy may be – as much as even the
category of a physical person resists conceptual clarification – at least it
does not abandon us to the sui generis. Erik Ringmar argues persuasively
that grasping what the state is will always be a matter of grasping what it is
like. He considers two mainstream ways in which political scientists have
tried to capture the essence of the state. Realists conceive it as a
29
Bartelson, ‘Sovereignty’, p. 90. 30
Skinner, ‘Genealogy’, p. 362.
220 Conclusion
‘transcendental, atomistic unit with a unified and pre-socially given set

of interests’, whereas pluralists regard it as ‘a bundle of sub-state actors
and an aggregation of their preferences’.31 ‘If we give the state a tran-
scendental status’, he writes, ‘it disappears from the world; if we see it
merely as a set of empirical attributes, it disappears into the world’.32
We would do better instead to ‘understand and explain the world’ ‘with
the help of metaphor’ (which for him is ‘synonymous with analogy’).33
Ringmar himself recognises that ‘in some sense the state itself can be
regarded as a person’, but his analysis concentrates, seemingly by inad-
vertent sleight of hand, on analogies between the state and the allied
concepts of self, subject and man.34 However, the point that needs to be
made here is that if it is helpful to see the state as a person – and if as a
matter of fact we have come to talk about the state by means of this term,
so that the ontological question of what the state is should be rephrased as
a genealogical question regarding how we came to talk in this way – then
we would do well to accept that Pufendorf’s moral person of the state,
understood by analogy to the free and rational individual person,
probably gives us more to hold onto and work with than the Hobbesian
fictional person of the state, which is both sui generis and ever needful of
representation by a sign.
Pufendorf’s moral person of the state, then, is not the same thing as
Hobbes’s fictional person of the state. This is the negative thesis of this
study; the positive thesis – about what it is, and what it has been taken to
be by authors who recognised in it something not very Hobbesian – has
been stated above and in detail in the preceding chapters. The persona
of Pufendorf has, of course, long been associated with that of Hobbes.
At the end of the eighteenth century, Friedrich Schiller condensed the
association in verse:
Leave then the wild wolves’ fiercer station,
Accept the state’s more lasting obligation,
Thus teaches, pen in hand, his nostrum,
Pufendorf, from his high rostrum.35
31
Erik Ringmar, ‘On the ontological status of the state’, European Journal of International
Relations, 2 (1996), pp. 439–466, at p. 442.
32
Ibid., p. 439.
33
Ibid., pp. 450 and 460. For some useful justification of the equation of metaphor and
analogy, see Rieke Schäfer, ‘Historicizing strong metaphors: A challenge for conceptual
history’, Contributions to the History of Concepts, 7 (2012), pp. 28–51, at p. 31. Ringmar’s
reason for appealing to analogical reasoning in order to grasp the state appeals to the
work of Lakoff and Johnson cited in note 8.
34
Ringmar, ‘Ontological status’, p. 440.
35
Quoted in Alfred Dufour, ‘Pufendorf’, in The Cambridge History of Political Thought,
1450–1700, eds. J. H. Burns and Mark Goldie (Cambridge, 1991), p. 537.
Conclusion 221
In reality, however, Pufendorf’s relationship to Hobbes was always that

of a critical reader. In Pufendorf’s words, in Hobbes’s writings, ‘among
many bad arguments are also to be found very many excellent ones of
outstanding value: also those very false arguments which he expounds
have offered an opportunity of perfecting moral and political science, just
as several points that have assisted in its completion would scarcely have
occurred to anyone without Hobbes’s contribution’.36 To be sure,
it would scarcely have occurred to Pufendorf to describe the state as a
person without Hobbes’s contribution to political theory. But person can
be used to mean many things, and Pufendorf used it to mean something
quite different from what Hobbes had used it to mean. He used it, I have
argued, to help generate the most significant theory of the modern state.
36
Quoted in Hochstrasser, Natural Law Theories, p. 69.
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Index
absolutism, 9, 22, 126, 148, 180, 188, Anscombe, G. E. M., 12

204–5, 208 Appold, Kenneth G., 71
Achenwall, Gottfried, 131, 185 Aquinas, St Thomas, 32, 39, 54, 63
Act of Settlement (1701), 154 on dominium, 58–60
Act of Union (1707), 149, 163 on natural right, 59
actor, 5–6, 14, 87–8, 210 on necessity, 39–40
Adam, 68, 75 Arendt, Hannah, 1, 88, 179
Adams, John, 24, 168–9, 171 Aristotelianism, political, 94
milestones in his life, 162 Aristotle, 2, 32, 61, 82, 173
on the British imperial constitution, Arminius, Jacob, 70
163–6 Armitage, David, 116, 145, 180
Administration of Justice Act (1775), 162 Arnauld, Antoine, 173
agency. See intellect, will Arneil, Barbara, 164
Ahnert, Thomas, 74 Arnisaeus, Henning, 96
Åkerlund, Erik, 46 Ashworth, William B., Jr., 214–15
akrasia, 2 Augsburg Confession, 69
Alcalá, Jesuit College of, 54 Australia, 180
Alexander, James, 20 Austria, 131
Algra, Keimpe, 87
Allott, Philip, 129 Backhaus, Jürgen G., 119
Alonso-Lasheras, Diego, 36 Bacon, Sir Francis, 4
Althusius, Johannes, 204 Baier, Johann, 73
American Revolution, 24, 145, 179, Bailyn, Bernard, 146
See also Declaration of Independence balance of power, 131, 187
(Jefferson) Vattel on, 129
and attack on virtual representation, Baldus de Ubaldis, 196
154–6 Báñez, Domingo, 39, 63, 111
and natural law, 159–62 on causality, 60
and property, 146 on freedom, 39–46
as dissolution of imperial constitution, on grace, 71
162–70 on necessity, 40
as triggered by dispute over the right to on physical premotion, 39, 62, 67
legislate, 151–4, 158–9 response to Molina, 45
historiography of, 146–8 Barbeyrac, Jean, 10, 78, 82
parallels elsewhere, 180 Barker, Ernest, 204, 208
analogical reasoning, 1, 9, 209–10, 213–14, Barnes, Jonathan, 173
220 Bartelson, Jens, 143, 218
analogy, Renaissance theories of, 215, 217, Barth, Karl, 73
219 beatific vision, 42
Anfray, Jean-Pascal, 30 Beaulac, Stéphane, 122, 203
Ankersmit, Frank R., 213 Beck, Lewis White, 109
Anne, queen of England, 154 Belgium, 181
248
Index 249
Bell, Duncan, 20 as limited monarchy, 160

Bentley, Jerry H., 51 right to legislate, 153
Beseler, Georg, 188 Brito Vieira, Mónica, 7, 74
Besold, Christian, 97 Broadwater, Jeff, 156
Bianchi, Massimo Luigi, 214 Brodrick, James, 37
Birmingham, 153 Brotherton, Joshua R., 38
Bismarck, Otto von, 208 Buddeus, Johann Franz, 73
Blackstone, Sir William, 148 Buickerood, James G., 94
and Pufendorf, 149–51 Bull, Hedley, 130, 186
and Wolff, 150 Burgdorf, Wolfgang, 99
as parliamentarian, 151–2, 159 Burke, Edmund, 170
definition of law, 150 Burlamaqui, Jean-Jacques, 121
influence of, 151 Burns, J. H., 4
municipal law defined, 150 Burns, Tony, 20
on natural law, 149–51 Butler, Peter F., 187
on rights, absolute and relative, 150–1 Byrd, B. Sharon, 131, 141, 225
Wilson’s critique of, 159, 161
Bland, Richard, 149, 159–62, 166, Calixt, Georg, 72
168–9 calling. See justification, Suárez on vocatio
on British imperial constitution, Calov, Abraham, 71–2, 75
156–8 Calvin, John, 67–8, 70–1
Blumenberg, Hans, 213 Calvinism, 74, See also Pufendorf, critique
Bodin, Jean, 4, 94, 97 of Calvinism
body politic, 3–5, 8–9, 11, 14, 100, 178, and free will, 43, 46, 66–8, 70–1,
195, 206 76–7
Boethius, 30, 89–91 on exhaustive divine sovereignty, 68–9
Bohun, Edmund, 160 cameralism, 118–20
Bolívar, Simon, 181 Canada, 180
Bono, James J., 215 Candid Examination of the Mutual Claims
bonum in communi, 41 of Great Britain and the Colonies, A
Boorstin, Daniel J., 167 (Galloway), 164
Bootle Attie, Katherine, 11 Canning, Joseph, 57
Boston Port Act (1775), 161 capitalism, 53, 198
Boston Tea Party, 161 Carey, Daniel, 175
Boucher, David, 126, 170 Carmichael, Gershom, 172–5
Bourbon, House of, restoration of (1813), as critic of Arnauld and Nicole on
180 judgment, 174
Bourke, Richard J., 31 Carr, Craig L., 82
Bradshaw, Leah, 179 causality. See also Báñez on causality,
Bramhall, John, 216 Society of Jesus on causality, Suárez
Brett, Annabel, 20, 36, 57, 60 on causality
Britain and physical premotion, 39, 43
and Napeolonic Wars, 187 efficient, 61–2
and taxation policy before and after final, 60–2
Seven Years’ War, 152 formal, 61
as maritime power, 156 material, 61
ownership of real property after Saxon Cavallar, Glenn, 118
conquest, 168 Censure against Twenty-three Propositions of
power of after Seven Years’ War, 131 the Dominican Father Báñez
British Empire, 187 (Molina), 43
and common-law constitutionalism, Cessario, Romanus, 47
147–9, 153, 155–7, 161, 165, 168, Channel Islands, 164
171 Chaplin, Jonathan, 191
as composite polity, 145, 148, 157, 160, Chapman, Phillip C., 1
166–7, 171, 179 Chappell, Vere, 32
250 Index
character, relation to personhood, 6, Considerations on the Propriety of Imposing

86, 88 Taxes in the British Colonies (Dulany),
Charles I, king of England, 157 154
charter, charters. See British Empire and Continental Congress, 170–1
common-law constitutionalism controversy de auxiliis, 21, 29, 37–46, 60,
Chemnitz, Bogislaw, 96 66, 102
Christie, Ian R., 153 co-operative movement, 208
Christov, Theodore, 108, 123, 129 Copenhaver, Brian B., 214
Cicero, Marcus Tullius corporation. See also Hobbes on
on probability, 52 corporations, Roman law of
on rhetoric, 51 corporations, Gierke on universitas
civitas maxima and British colonies, 155–6, 170
Vattel on, 121–3, 127, 131 as fictional person, 10, 182
Wolff on, 118–20, 139, See also Holy contrast with state, 11
Roman Empire and Wolff within the state, 191
Coercive Acts. See Intolerable Acts (1775) Cortissoz, Carlos, 2
Coimbra, Royal University of, 51 Courtenay, William J., 40
Coke, Sir Edward, 149, 163 Covell, Charles, 123
on natural and politick capacity of the Craig, William Lane, 45
king, 163 Craven, Matthew, 108
Coleman, Janet, 57–8 Czechoslovakia, 181
Coles, William, 214
common law, 147–8, 156 Daly, James, 3
Adams on, 164 Daniel, Book of, 95
Blackstone on, 148–9 Dante Alighieri, 195
Coke on, 149 Daries, J. G., 201
Commonplaces (Melanchthon), 69, 90 Darwall, Stephen, 84
composite monarchy. See composite polity Das deutsche Genossenschaftsrecht (Gierke).
composite polity See German Law of Fellowships, The
British Empire as, 24, 145, 157, 166–7, (Gierke)
170–2, 179 Dawson, Hannah, 78
defined, 2 De anima (Aristotle), 32
Gierke on, 200–1 Declaration of Independence (Jefferson), 159,
Holy Roman Empire as, 22, 99, 108, 144, 167, 171, 180
186 Declaratory Act (1765), 151–2,
Pufendorf on, 24, 102–3, 107, 119, 158–9
144–5, 148, 182, 206, 219 Decock, Wim, 49
as ‘regular state’, 100 decolonisation, 24
United States of America as, 24, 144, 179 ‘Défense du système leibnitien contre les
Vattel on, 23 objections et les imputations de
Wolff on, 120, 131 Mr. de Crousaz’ (Vattel), 125
composite state. See composite polity Deiser, George F., 10
Concord, Battle of (1775), 170 Dekker, Eef, 70
Condren, Conal, 86 Della Rocca, Michael, 32
confession. See sacrament of penance Deming, Will, 90
Connecticut, 165 Derathé, Raymond, 185
Conring, Hermann, 96 Deuteronomy, Book of, 38
conscience Devetak, Richard, 66
Hutcheson on, 175 Dickinson, John, 166
Reid on, 175 Dionysian rituals, 5
Vattel on, 123, 126–8 ‘Dissertation on this Question: Can Natural
Wolff on, 113–17, 127 Law Bring Society to Perfection
Considerations on the Nature and Extent of the without the Assistance of Political
Legislative Authority of the British Laws?’ (Vattel), 125
Parliament (Wilson), 159 Divine Feudal Law, The (Pufendorf), 74–7
Index 251
Doctrine of Right (Kant), 130–41 federalism, 145, 183, 200, 208

Doctrine of Virtue (Kant), 141–2 Federalist Papers, The (Hamilton, Jay,
Dominicans, 21, 29, 37–8, 43, 45, 47, 54, Madison [Publius]), 24, 144, 172,
58 176–8
on dominium, 60 on executive branch of government as
dominium, 31, 43, 56, 72 will of state, 177–8
rival Jesuit and Dominican views on, on judicial branch of government as
56–60 judgment or conscience of state, 178
Döring, Detlef, 74, 110 on legislative branch of government as
Douchet, Jean, 1, 19 understanding of the state, 177
Douglass, Robin, 8 Feldhay, Rivka, 47
Dowdeswell, William, 152 fellowship, 188–90, 199, 201, 208, See also
Drakopoulou, Maria, 203 Gierke, on personality of fellowship
Dreitzel, Horst, 73, 94 Ferling, John E., 165
Dreschler, Wolfgang, 119 Fiering, Norman, 178
Dreyer, Michael, 188 Filmer, Sir Robert, 168
Dufour, Alfred, 99, 220 Findlen, Paula, 214
Duggan, Lawrence G., 48 Finnis, John, 35, 184
Dulany, Daniel, the Younger, 149, 154–9, Fliegelman, Jay, 171
161–2, 166, 168–9 Flikschuh, Katrin, 131, 136, 141, 182
Dulles, Avery, 55 Flint, Thomas P., 44
Dumont, Louis, 193 Forset, Edward, 3
Dworetz, Steven M., 146 Forsyth, Murray, 97
Fortescue, Sir John, 4
Eardley, P. S., 30–1 Foucault, Michel, 215, 217
East India Company, 153, 161 Foundations of Modern Political Thought, The
Edict of Nantes, revocation of, 121 (Skinner), 184
Egypt, 51 France. See also French Revolution
Elements of Law, The (Hobbes), 8, 11 and expansionist foreign policy of Louis
Elements of Natural Law (Achenwall and XIV, 101
Pütter), 185 and harassment of Huguenots, 74, 121
Elizabeth I, queen of England, 157 and Napoleonic Wars, 187
Elshtain, Jean Bethke, 31 and War of the Spanish Succession, 121
emblematic world view, 214–16 as guarantor of Peace of Westphalia, 131
Empire. See also British Empire, Holy emerges weakened from Seven Years’
Roman Empire War, 131
Babylonian, 96 Franciscans, 57–8
Macedonian, 96 Frank, Jerome, 159
Persian, 96 Frankfurt, Harry G., 89
Roman, 96 Franklin, Julian, 95
Spanish, 53 Freddoso, Alfred J., 32
English Revolution, 9, 83 Frede, Dorothea, 87
Ephesians, Book of, 38 Frede, Michael, 30, 87
Epictetus, 87 Frederick I, king of Prussia, 121
Erasmus, Desiderius, 50 Frederick II, king of Prussia (Frederick the
Erie, Lake, 155 Great), 122
Esposito, Roberto, 88, 90 French Revolution, 75, 186
‘Essay on the Foundation of Natural Law’ Friedeburg, Robert von, 83, 94
(Vattel), 123 Friedman, Russell L., 90
Eucharist, 47, 67 Frow, John, 211
faculty psychology, See intellect, will Galloway, Joseph, 164–5

Farrely, Mark John, 38 Garnsey, Peter, 57
Fasolt, Constantin, 96 Geertz, Clifford, 211
Favre, Pierre, 48 Genossenschaft. See fellowship
252 Index
Gentner, Dedre, 213 his predetermination of Creation, 40–2,

George III, king of Great Britain and 66, 68, 70
Ireland, 145, 147, 162, 165, 167–9, his prescience, 71, 77
171 his reason, 195
German Empire. See Holy Roman Empire his sovereignty, 29, 38, 40,
German Law of Fellowships, The (Gierke), 44, 77
24, 184, 189–203, 204–6 Göttingen, University of, 183–8, 192
Germanism, 184, 188, 190, 192, 194, 199 Göttinger Rechtsschule. See Germanism
Gesner, Conrad, 214–15 Gould, Eliga H., 145
Gierke Otto von. See also fellowship grace, 29, 32, 57–73, 76, 78, 102, 111
Gierke, Otto von, 66 Grant, Walter Matthews, 44
and capitalism, 198 Graybill, Gregory, 70
as German nationalist, 208 Greenberg, Sean, 32
on concession theory, 194, 196–7, 199 Greene, Jack P., 147–8
on craft and trade guilds, 190 Gregor, Mary, 139
on free towns, 189–91 Grimm, Jacob and Wilhelm, 188
on herrschaftlicher Verband, 188–9, 195 Griswold, Charles L., 167
on Hobbes, 196–8 Gross, Hanns, 186
on natural law, 193–7 Grotius, 14–15, 70, 187, 200
on personality of fellowship, 190–1 Grunert, Frank, 118
on Pufendorf, 25, 183, 206 Guarino, Thomas, 51
Holy Roman Empire as composite Guevara, Juan de, 53
polity, 200–1 Gundling, Nicolaus Hieronymus, 201
moral entities, 198 Guyer, Paul, 142
moral personality as legal personality,
198–203 Haakonssen, Knud, 91, 111, 116
theory of facultative sovereignty, 204–6 Haara, Heikki, 80
on Rechtsstaat, 191–2 Habermas, Jürgen, 188
on Romanism, 192–3, 195 Hacking, Ian, 55
on societas, 192 Hager, Mark M., 192
on the Roman Catholic Church, Halifax, 153
Christianity, 194–5 Halle, University of, 184
on universitas, 192–3 Hamilton, Alexander, 176–7, See also
on Volksgenossenschaft, 188–90 Federalist Papers, The
Gilson, Étienne, 67 Handbook for the Study of European
Glasgow, University of, 172, 174–5 States-Systems and their Colonies
Glorious Revolution (1688), 147, 154, 163, (Heeren), 186–7
170 Hanover, House of, 154, 184
God Hardon, John A., 37, 46
and natural law, 81–2, 102, 194–5 Harré, Rom, 209
as first mover, 39 Harris, Ron, 197
his absolute power to will anything not Hartz, Louis, 146
involving a contradiction, 31, 215 Harvard University, 208
his auxilium, 39–40, 42 Harvey, A. D., 3
his concurrence with free human acts, Haslam, Jonathan, 108
43–4, 71, 77 Havercroft, Jonathan, 20
his covenant with mankind, 97 Healy, Margaret, 3
his foreknowledge, 67 Heeren, A. H. L., 186–7
his goodness, 40, 68 Hegel, G. W. F., 188
his grace, 29, 32, 37, 44, 46–7, 69–73, Heidegger, Martin, 67
76, 78, 102, 111 heresy, 38, 49, 71
his knowledge, 44 Pelagian, 71–2
his mercy, 72 Hert, Johann Nikolaus, 201
his ongoing activity in the world, 216 Hipp, Stephen A., 63
his perfection, 110 Hirschman, Albert O., 177
Index 253
Historical Development of the Present Political Howe, Daniel Walker, 176

Constitution of the Germanic Empire, Hruschka, Joachim, 131–2
An (Pütter), 185 Hubertusburg, Peace of, 131
Hobbes, Thomas, 6, 9, 11, 13, 23, 90, 108, Huguenots, 74, 121
116, 142, 197–200 Hunter, Ian, 17–19, 22, 66, 81, 87, 126,
and Gierke, 197–8 128
and natural science, 216–17 Hurrell, Andrew, 129
and Pufendorf, 66, 86, 91, 103, 108, 205, Hutcheson, Francis, 174–5
220 hypostatic union, 67
on concept of person, 5–7, 13, 86–7, 117,
210–13, 217–18 Idea for a Universal History with a
on corporations, 11, 182, 197 Cosmopolitan Aim (Kant), 130
on God’s power, 216 Ignatius of Loyola, 46–8, 51
on idolatry, 216 indifference. See intellect and indifference;
on language, 217 will and indifference
on law of nations, 116 influence, Dominicans and Jesuits on
on multitude, 7, 11, 13 meaning of, 61
on state as artificial man, 4 Inquiry into the Rights of the British Colonies,
on state as mortal god, 8 An (Bland), 156, 166
on state personality, 5, 7–11, 13, 25, Institutes of the Lawes of England
126, 197–9, 202, 207, 210–12, (Coke), 149
218–20 intellect
Hochstrasser, T. J., 16–19, 81–2, 96, 111, and freedom, 21, 29–30, 41, 72,
124, 221 78, 133
Hoffmann, Tobias, 30 and indifference, 35
Hofstadter, Douglas, 1 and sovereignty, 22, 24, 65, 92, 120,
Hohenstaufen period, 189 125–6, 206, 218
Holland, Ben, 46, 120, 130 as necessary condition of free will, 35, 41,
Hollaz, David, 73 91–2, 102
Holy Roman Emperor object of, 41
and cameralism, 119 according to Suárez, 33–6
and Catholicism, 22, 66, 101 practical mode, 35–7, 56,
as monarch, 95–6, 100, 185 79–80, 93
as subordinate magistrate, 96 speculative mode, 35, 79–80, 92
as will in the state, 101–2 intellectualism, 31
reserved rights of, 97–8, 100, 119, 187 international law. See law of nations
Wolff’s dependence on, 119 interregnum. See Pufendorf on right of
Holy Roman Empire resistance
and balance of power in Europe, 131 Intolerable Acts (1775), 161, 168
and Gierke, 188, 200–1 Introduction to the History of the Principal
and Heeren, 186 Kingdoms and States of Europe, An
and Pufendorf, 22, 66, 94–102, 144, 157, (Pufendorf), 101
160 Ireland, conquest of by Britain,
and Pütter, 185–6 160, 164
and Wolff, 120, 122, 127, 131, 140 Irwin, T. H., 82
as aristocracy, 96–7 Isaiah, Book of, 38
as democracy, 95 Ishiguro, Hidé, 90
as monarchy, 95–6 ius gentium, See law of nations
Aulic Council of, 98 Ivison, Duncan, 164
fiscal administration of, 119
French annexations of, 121 James, Harold, 66
Imperial Diet of, 100 Janssen, Peter L., 20
translatio imperii, 96 Jayne, Allen, 167
Hont, István, 15, 100 Jefferson, Thomas, 24, 166–70, See also
Höpfl, Harro, 74 Declaration of Independence ( Jefferson)
254 Index
Jefferson, Thomas (cont.) on rationality, 136

and American Revolution, 171 on state of nature, 138–40
debt to Bland, 166 on the law of nations or public right,
on Pufendorf, 167, 169 138–42
on real property, 169 on the state
Jena, University of, 185 justification of its authority, 138–9
Jesuit, Jesuits. See Society of Jesus on thinking freely, 133–5
Jesus Christ, 48, 57, 69–71, 74, 76, 89 on universal principle of right, 137–9
as God-Man, 75 on world republic, state of nations or
atoning death of, 38, 72, 75 state of states (civitas gentium), 140
Jeuernig, Anja, 133 Kantola, Ilkka, 55
Jeziorski, Michael, 213 Kantorowicz, Ernst, 4
John of Salisbury, 3 Keckermann, Bartholomaeus, 95
Johns, Christopher, 110 Keene, Edward, 187
Johnson, Kristine, 50 Kennet, Basil White, 10, 84
Johnson, Mark, 213, 220 Kenny, Anthony, 40
Johnson, Samuel, 155 Kirchner, Hermann, 95
Jonsen, Albert R., 53 Knott, Sarah, 176
judgment knowledge-complexes, 20
Carmichael on, 173–4 knowledge-practices, 20
Hutcheson on, 174 Koenigsberger, H. G., 99, 145
in logic, 173 Koessler, Maximilian, 195
Pufendorf on, 174 Korkman, Petter, 81
Julius III (Pope), 49 Koselleck, Reinhart, 127
justification, 68, 72, 76 Koterski, Joseph W., 89
Justin Martyr, St, 89 Krieger, Leonard, 15
Justinian I, emperor, 149, 188 Kronen, John D., 67
Kusukawa, Sachiko, 69
Kant, Immanuel, 23, 108, 176, 201
and Pufendorf, 132–3 LaCroix, Alison L., 145
and Vattel, 140–2 Lagerlund, Henrik, 30
and Wolff, 140–2 Lakoff, George, 213, 220
on autonomy, 23, 135, 137, 142 Langford Paul, 152
principle of, 135–6 Lapide, Hippolithus a. See Chemnitz,
on categorical imperative, 137–8 Bogislaw
first formulation, 135–6 Larrimore, Mark, 112
second formulation, 136 Lauterpacht, Hersch, 129
on concept of Right, 137, 139, 182 law of nations, 23, 108
on deeds, 132–3, 136 Hobbes on, 116
on duties, perfect and imperfect, Jefferson on, 167
141–2 Kant on, 23, 138–42
on duty, 138 Pufendorf on, 108
on ethical law, 135–6, 138, 142 Vattel on, 23, 120, 122–3, 126–30
on external use of choice, 136–9 Wolff on, 23, 116–19
on free will, 132–5 Law of Nations according to the Scientific
on juridical law, 136–8, 142 Method, The (Wolff), 116
on law of reciprocal coercion, 137, 139 Law of Nature and Nations, The (Pufendorf),
on league of nations (negative surrogate 12, 16, 78, 84, 94, 97, 99, 107
of world republic), 140 Lawson, Stephanie, 20
on moral law. See Kant on categorical Le droit des gens (Vattel), 120, 122
imperative, Kant on ethical law, League of Nations, 181
Kant on juridical law, Kant on Lee, Daniel, 4
universal principle of right Leeds, 153
on moral personhood, 132–3, Leibniz, G. W., 17, 32, 109–10, 120–1
135–6, 141 as critic of Pufendorf on law, 110
Index 255
on freedom, 110–11, 125–6 Massachusetts Government Act (1775),

on theodicy, 110–11 162
Leipzig, University of, 185 Matava, R. J., 38, 46
Lenner, Andrew C., 172 Mauss, Marcel, 5
Leonard, Daniel, 163–4 McGrath, Alister, 69
Les six livres de la république (Bodin), 94 McLelland, Charles E., 188
Levering, Matthew, 38 Meador, Prentice A, 52
Leviathan (Hobbes), 4, 6–7, 10, 13, 116, Melanchthon, Phillip, 69–70, 72, 90
216, 218 metaphorology, 213
Lexington, Battle of (1775), 170 Metaphysical Disputations (Suárez), 32,
liberum arbitrium. See will, and freedom 67, 92
Lieberman, David, 151 Metaphysics of Morals, The (Kant),
Lifschitz, Avi, 17 130, 141
Limnaeus, Johannes, 97 Mexico, 181
Linklater, Andrew, 129 middle knowledge. See Molina on middle
List, Christian, 91 knowledge, Suárez on conditional
Little, Richard, 187 knowledge
Lobban, Michael, 149 Milbank, John, 31, 57, 63
Locke, John, 146, 164–5, 167–9 Milstein, Brian, 139
Logic, or the Art of Thinking (Arnauld and Milton, Patrick, 98
Nicole), 173 Moggach, Douglas, 119
Lohr, Charles H., 67 Molina, Luis de, 21, 29–30, 78
Lombard, Peter, 41 contrast with Suárez on free will,
Long, Stephen, 42 36, 92
Louis XIV, king of France, 100–1, 121 on animals, 36
Luther, Martin, 67–9, 75 on Calvin, 70
on free will, 67, 69 on divine concurrence, 43
on justification as absolute favour of God, on dominium, 58
69 on free and natural agents, 36
on sacrament of penance, 47–8 on grace, 71
Lutheranism, 66–72, 75, 77 on middle knowledge, 44–5, 68
and free will, 46 71–3
and Pufendorf, 73 on probability, 52
Lutz, Donald S., 151 on right, 58
Lynch, Paul, 50 response to Báñez, 43, 70
Molinism, 32–7, 39, 41, 43, 45–6, 65–6, 73,
Mably, Gabriel Bonnot de, 131 78
Macpherson, C. B., 146 and Leibniz, 110
Madison, James, 172, 176–7, See also and Pufendorf, 78–80, 102
Federalist Papers, The Monadology (Leibniz), 111
Magna Carta, 147 monarch
Mahoney, John, 52 as head of body politic, 3–5, 9
Maier, Pauline, 171 Monarchia (Dante), 195
Malcolm, Noel, 116 monarchy
Malink, Marko, 173 and Roman Catholicism, 194–5
Manchester, 153 limited, 96, 98, 160
Mancke, Elizabeth, 152 Montemayor, Prudencio de, 38
Maria Theresa, archduchess of Austria, Montesquieu, Charles-Louis Secondat,
queen of Hungary and Bohemia, 122 baron de, 176
Mary II, queen of England, 154 Montevideo Convention on the Rights and
Mary, princess of Neuchâtel, 121 Duties of States (1933), 208
Maryks, Robert Aleksander, 53 Monzambano. See Present State of Germany,
mask, 5, 210–11 The (Pufendorf)
Massachusetts, 165, 170 Monzambano, Severinus de. See Pufendorf,
House of Representatives, 156 Samuel
256 Index
Moonan, Lawrence, 40 Oakeshott, Michael, 11, 184

moral entities. See Pufendorf on moral Oakley, Francis, 40
entities Oedipus, 6
moral person. See also Pufendorf on moral Oestreich, Gerhard, 95
personhood; Kant on moral Of the Nature and Qualification of Religion in
personhood; Wolff, moral persons as Reference to Civil Society (Pufendorf),
different in kind from natural ones; 74
state as moral person Olwig, Kenneth Robert, 4
compound, composite, 13, 86 On Human Ends (Suárez), 56
defined, 12 On Justice and Laws (Molina), 52
simple, 86 On the Concord of Free Choice with the Grace
Morgan, Edmund S., 151–2 of God (Molina), 32
Morgan, Helen M., 151–2 On the Duty of Man and Citizen according to
multiple kingdom. See composite polity Natural Law (Pufendorf), 107
municipal law. See Blackstone, Sir William On the Goodness and Badness in Human Acts
(Suárez), 55
Nadal, Jerónimo, 47, 51 On the Origins of German Laws (Conring),
Nakhimovsky, Isaac, 123, 131 96
Napoleon I, emperor of France, 186–8 On the Voluntary and the Involuntary
Napoleonic Wars, 186, 188 (Suárez), 36
National Socialism, 208 Onuf, Nicholas G., 12, 123
nationalism, 180 Onuf, Peter S., 167
natural law Osiander, Andreas, 98
and law of nations, 143 Otto, Daniel, 95
and right of resistance, 162
Blackstone on, 151 Pagden, Anthony, 54, 145
Gierke on, 193–7 Palladini, Fiammetta, 65, 73
Hobbes on, 11, 116 Palti, Elías José, 213
Pufendorf on, 16, 19, 81–2, 113 Parliament (British), 152
Vattel on, 124, 129 American views of, 24, 145, 147–8, 152,
Wolff on, 112, 114, 116 154
necessary and voluntary, 114–15, 117 consent to regulation of overseas
preceptive, prohibitive, permissive, dominions, 166
114 one assembly of several, 158
nature powers from royal charters, 155–6,
book of, 214–16 160
law of. See natural law as Pufendorfian sovereign, 165
Neff, Stephen C., 108 Blackstone on, 151, 154, 159
Nelson, Eric, 147–8 king-in-parliament, 145, 147, 154, 163,
Neocleous, Mark, 7 165, 168, 170
Nettelbladt, Daniel, 201 right to legislate, 152–3,
Neuchâtel, 121–2 158–9
New York General Assembly, 159 right to tax, 151–2, 156, 158
New York Suspending Act (1767), virtual representation in, 153, 161
158, 159 Parliament (English), 163
New Zealand, 180 Parliament (Scottish), 163
Nicholas of Cusa, 4 Pascal’s Wager, 55
Nicole, Pierre, 173 Pasquino, Pasquale, 93
Nicomachean Ethics (Aristotle), 2 passion, 50, 110, 178
Norman Conquest, 169 Patey, Douglas Lane, 52
Normore, C. G., 30 Paul V (Pope), 38
Novanglus (Adams), 163 Pegis, Anton C., 46
Penner, Sydney, 34
O’Malley, John W., 47–8, 51 perfection, 143
O’Neill, Onora, 134 Kant on, 141–2
Index 257
Leibniz on, 111 strengthened by Seven Years’ War, 131

Vattel on, 123–5, 128 public law, research and teaching of in
Wolff on, 111–12, 114–15, 118–19 Germany, 184
Perpetual Peace (Kant), 130 Puccetti, Roland, 90
Perpinyá, Pedro João, 51 Pufendorf, Samuel, 30, 169, 176, See also
person. See also Pufendorf on moral state as moral person
personhood; Kant on moral and Adams, 165
personhood; Wolff, moral persons as and Blackstone, 149–51, 159
different in kind from natural ones; and Dulany, 155–6
Gierke on personality of fellowship; and Galloway, 165
state as moral person; persona and Gierke, 198–206
and groups, 183, 188 and Hobbes, 9, 12–14, 19, 25, 66, 73, 83,
artificial, feigned, 6–7, 13, 86, 126, 191, 86, 91, 103, 108, 116, 205, 211, 219,
197, 210 221
as individual rational substance, 90, 210, and Kant, 132–3
212–13 and popular sovereignty, 93
as unity in plurality, 190–1 and Suárez, 32, 35, 37, 65–6, 73, 78–80,
fictional, by fiction, 8, 13–14, 126, 191, 91, 102
193, 202, 206, 211–12 and Wilson, 160
in early Christian thought, 89–90, 210 and Wolff, 120
in Greek theatre, 6, 86–7, 210 as Lutheran, 21, 73–8, 102
in Roman law, 90 as official historian, 74
in Stoic thought, 89 as privy counsellor, 74
real, 191, 193, 197 as professor of law of nations, 107
unifying function of concept, 211–12, 218 as tutor, 15, 74
persona critique of Calvinism, 76–7
etymology, 5, 13, 86 critique of Luther, 75
persona moralis. See Pufendorf on moral on confederate systems, 97, 99–100
personhood, state as moral person, on duties, perfect and imperfect, 113
Gierke on Pufendorf on free will, 78–80, 84, 91
personation. See representation on freedom required for salvation, 76–7,
Pettit, Philip, 8, 91 80
Philippians, Book of, 38 on international relations, 107
Philosophiae moralis institutio compendiaria on international trade, 108
(Hutcheson), 174 on Jesuits, 74
physical premotion, 39, 41–2, 60, 67 on language, 16–17
Pierson, Christopher, 57 on Louis XIV, 101
Pink, Thomas, 35 on marital duties, 203
Pizan, Christine de, 3 on moral entities, 12, 14–16, 18–19,
Plato, 2, 118 84–6, 103, 183, 198, 203, 213,
pluralism, 130 215, 219
Pocock, J. G. A., 20, 146 on moral personhood, 13–14, 18–19,
Polanco, Juan Alfonso de, 48, 50 85–6, 93, 132–3, 212, 218
Policraticus (John of Salisbury), 3 not merely legal personhood,
populism, 9 203–4
poverty controversy, 57 on natural law, 81–2
Present State of Germany, The (Pufendorf), fundamental law of sociability, 82
95, 121, 160, 185 on right of resistance, 83–4, 93, 101–2,
Prior Analytics (Aristotle), 173 160
probabilism, 53, 55–6, 93 on rights of first occupancy, 108
property. See also dominium on sovereignty
and British voting rights, 153, 158 absolute and supreme, 84, 92, 186,
Jefferson on real, 168–9 205
prosōpon. See persona, mask on state of nature, 15
Prussia, 119, 121–2, 185 on system of states, 98, 100, 145
258 Index
Pufendorf, Samuel (cont.) Reus-Smit, Christian, 180

on the Holy Roman Empire, Rhode Island, 165
94–102 Richter, Melvin, 20
as composite polity, 100 Riley, Patrick, 84
as composite state, 100 Ringmar, Erik, 219–20
monstrous, 99, 206 Robertson, John, 47
on the intellect, 78–9, 82 role
on the state, 29, See also state as moral and ancient popular morality, 87
person and moral persons, 12, 86
council of nobles or commons, 83–4, 92 and Stoic thought, 87–9
defined, 92, 125 in theatre, 6
enjoined by God, 82 Roman College, 51
founded through contract, 83, 185 Roman law, 96, 149, 183
fundamental laws, 83 of corporations, 193
its purpose, 82–3 the Reception of, 80, 188, 192
moral person, 11, 86, 91–3, 103, 125, Romans, Book of, 38
209, 212, 218 Rorty, Amélie Oksenberg, 88, 209
will of, 84 Rørvik, Thor Inge, 84
on the will, 79–80, 85 Ross, George Macdonald, 110
on Thirty Years’ War, 22 Rosser, Gervaise, 184
Pütter, Johann Stephan, 185–7, 201 Rousseau, Jean-Jacques, 20, 123, 131, 226
royal prerogative, 161–2
Quartering Act (1765), 159 Runciman, David, 6, 8, 10, 192, 197
Quenstedt, Johannes, 72 Russell, Conrad, 99
Questions de droit naturel, et observations sur Russia
le traité du droit de la nature de emerges from Seven Years’ War as great
M. Le baron de Wolf (Vattel), 124 power, 131
Rutherford, Donald, 111
Raleigh, Sir Walter, 157 Ryerson, Richard Alan, 163
realism, 140
and Vattel, 128 Saarinen, Risto, 69
reasoning, in logic, 173–4 Saastamoinen, Kari, 15, 81
Rechtsstaat, 191, 194 sacrament of penance, 21, 29, 31, 46–50,
Reformed theology. See Calvinism, Calvin 53, 58–9
regula iuris sixty-five, 53–6 Saine, Thomas P., 112
regula magistralis, 54–5 Salamanca, University of, 38
Reich, the. See Holy Roman Empire Salavastru, Andrei, 4
Reichspublizisten, 95, 186 Sander, Emmanuel, 1
Reichsstände, 98 Scaglione, Aldo, 50
Reid, John Phillip, 147–9, 159 Scattola, Merio, 131
Reid, Thomas, 175–6, 178–9 Schäfer, Rieke, 220
Reimann, Mathias, 188 Schelling, Friedrich Wilhelm Joseph, 188
Reinkingk, Dietrich, 95–6 Scherzer, Johann Adam, 73
Remonstrance, 70 Scheuerman, William E., 178
Renaissance Schiller, Friedrich, 220
philosophy of language, 213–15 Schlözer, August Ludwig von, 201
representation Schmaltz, Tad M., 61
and authorisation, 7, 93, 164, 177, Schmidt, Alexander, 70
197–9, 202 Schmidt-Biggemann, Wilhelm, 67
and personhood, 5–6, 8, 13, 201, 206, Schmier, Franz, 201
212, 217–18 Schmitt, Charles B., 214
and taxation, 153 Schmutz, Jacob, 62
as function of language, 217–20 Schneewind, J. B., 81, 112–13, 115
virtual, 153–4, 161 Schönfeld, Martin, 111
Republic (Plato), 2 Schröder, Peter, 98, 100
Index 259
Schüßler, Rudolf, 53–4, 56 Sonenscher, Michael, 75

Schuurman, Paul, 173 South Africa, 180
Schwartz, Daniel, 52, 74 sovereignty
scientia media. See Molina on middle Adams on, 166
knowledge, Suárez on conditional Blackstone on, 150–1
knowledge Bland on, 157–8
Scottish Enlightenment, 24, 144, 172, Bodin on, 4, 94
175–6, 179 Carmichael on, 173
Scotus, John Duns, 30 declarative theory of, 209
Scruton, Roger, 184 Dulany on, 154–6
Searle, John, 12 facultative, 25, 66, 91–4, 107, 120, 172,
Seckendorff, Ludwig von, 97 205
Seidler, Michael J., 74, 82, 84, 107 Galloway on, 165
self, the, 209 Gierke on, 191–2, 195–7, 200
separation of powers, 24, 172, 176 in Pufendorf, 198–206
Serjeantson, R. W., 172 Heeren on, 187
Seven Years’ War (1754–63), 131, 152 Hobbes on, 7–9, 11, 218
Sherman, Nancy, 135 Jefferson on, 169
Shields, Christopher, 62 Kant on, 140–1
Sieyès, Emmanuel Joseph, 167 of God, 29, 38, 67–8, 77
Simon, Joshua, 181 popular, 93, 146, 200
sin, 43, 48–9, 54, 56, 68, 76–7, 110, 115 Pufendorf
Sirach, Book of, 38 as Hobbesian with respect to, 65–6
Six livres de la république (Bodin), 4 Pufendorf on, 13, 17–19, 22, 65,
Skarica, Mirko, 37 218–19
Skinner, Quentin, 20, 184, 203, 215, 219 absolute and supreme, 82–4
debt to Gierke, 207 facultative, 93
on Hobbes, 8–12, 87, 116, 123, 182, 206, in Holy Roman Empire, 22, 94–102
218 Pütter on, 185–6
on methodology, 20 Vattel on, 125–9
on Pufendorf, 9–10, 12, 22, 25, 65, 123, Wilson on, 160
182, 203, 209, 213 Wolff on, 120
on Vattel, 23, 107 Specimen controversiarum (Pufendorf), 73
republicanism, 95 Spicilegium controversiarum (Pufendorf), 73
slavery, 54, 90 Spirit of the Laws, The (Montesquieu),
Sleigh, Robert, Jr., 32 176
Smith, Nicholas D., 2 Spiritual Exercises (Ignatius of Loyola), 46
societas. See Gierke on societas Stamp Act (1765), 151–3
Society of Jesus, 21, 29, 46–7, 54, 176 state
and case-based reasoning, 48–9, 53 analogy to soul, 2–3
and casuistry, 52–3, 55, 128 as artificial man, 4
and Cicero, 51–2, 54–5 as conceived by pluralists, 220
and dominium, 31, 60 as conceived by realists, 220
and education, 53 as moral person, 10, 21, 23, 172, 176,
and humanism, 53 220
and rhetoric, 53 Carmichael, 173
and sacrament of penance, 29, 31, 47–50, Gierke, 183
53–4 Kant, 23, 130, 138, 141–3, 182
and spiritual progress, 48, 51 Pufendorf, 2, 10, 12–14, 19, 21–2, 25,
and the Franciscans, 57 29, 65–6, 83, 86, 91–3, 102–3, 125,
Formula of the Institute, 47 143, 145, 172, 179, 182, 212,
on causality, 61–2 218–20
Pufendorf’s view of, 74 Reid, 175
Ratio studiorum, 50 Vattel, 23, 123–6, 128–30, 143
Socrates, 2 Wolff, 23, 116–17, 120, 130, 143, 182
260 Index
state (cont.) Tassi, Aldo, 88

as person by fiction, 5, 8–10, 13, 25, 86, Taylor, Charles, 209
91, 126, 183, 203, 206, 208, 211, Teichman, Jenny, 90
218–20 Teske, Roland J., 3
composite, 22, 99, 102, 120, 144, 157, Thatcher, Adrian, 89
166, 171, 182, 186, 200, 206 theodicy, 110
state of nature Thiel, Udo, 84
Blackstone on, 150–1 Thijssen, J. M. M. H., 30
Hobbes on, 7, 11, 23, 116, 197 Thirty Years’ War, 22, 95, 102, 120
Kant on, 138–40 Thomann, Marcel, 109
Pufendorf on, 15, 108 Thomism. See Aquinas, Dominicans
Wolff on, 115, 117, 120, 142 Thompson, C. Bradley, 163
Stewart, Matthew, 109 Thornhill, Chris, 191
Stoicism, 68 Threet, Douglas F., 52
and concept of person, 87–9 Tierney, Brian, 114–15
Stolleis, Michael, 203 Titius, Gottlieb Gerhard, 201
Stone, M. W. F., 35, 51 Toulmin, Stephen, 53
Straumann, Benjamin, 95 Townshend Acts (1766), 159
Strawson, P. F., 90 Townshend, Charles, 159
Suárez, Francisco, 21, 29 Toyoda, Tetsuya, 122
and monarchomachism, 74 Tract on the True and Legitimate Concord of
and probabilism, 56 the Free Will of Creatures with the
and Pufendorf, 31–2, 35, 65–6, 73, Helping Grace of God (Báñez), 39
78–80, 102, 133 Trendlenburg, Adolf, 87, 90
influence on German Protestant Trent, Council of, 37–8
philosophy, 67 Tribe, Keith, 119
on animals, 33 Trinity, the, 63, 90
on causality, 61–2 Tuck, Richard, 14–16, 108, 172, 184
on conditional knowledge, 44, 71–2, 77 Tukiainen, Arto, 7
on divine concurrence, 44 Turner, Henry S., 7
on dominium, 56 Turretin, Francis, 72
on free and natural agents, 32, 36
on freedom, 32–7 United Kingdom. See Britain
on grace, 71–2 United Provinces, 97, 101, 122, 200
on Ignatius of Loyola, 46 universal good. See bonum in communi
on intellect, 32–7, 91 use of fact, 57
on rational soul, 33
on the Trinity, 63 Valla, Lorenzo, 50
on vocatio, 71 Varden, Helga, 138
on will, 32–7, 91–2 Vattel, Emer de, 23, 108, 201, See also state
ownership of, 55–6 as moral person
some differences to Molina on free and Heeren, 187
will, 36, 71, 92 and realism, 128
Summa theologiae (Aquinas), 32, 39, 61 as diplomat, 121–2
Summary of Major Heresies (Molina), 43 as Wolffian disciple, 120–1, 123
Summary of Minor Heresies (Molina), 43 critique of Wolff, 121–2
Summary View of the Rights of British Europe as a ‘kind of republic’, 129
America, A (Jefferson), 166, 168 on balance of power, 129, 131
Supplements and Observations on Samuel on civitas maxima, 121–3, 127
Pufendorf’s ‘On the Duties of Man and on duties, perfect and imperfect, 123–4,
Citizen’ (Carmichael), 172 126–8
Sweden on just war, 127
as guarantor of Peace of Westphalia, 131 on self-love as first law of nature, 124
Switzerland, 94, 97, 121–2 on sociability as second law of nature,
syllogism, 173 129
Index 261
on the great society established by nature as unifying principle of body politic, 195
between nations, 129 commanded act of, 35, 79–80
on the law of nations, 126–30 disposed to plural alternatives, 42
necessary and voluntary, 123 elicited act of, 34, 79–80
on the state, 125–6, 129–30 indifference to its causes, 34, 41–2, 44,
character of its sovereignty, 126 63, 79–80, 93, 102, 110, 133
defined, 126 limitations of
strive for perfection, 124–5 according to Suárez, 35
on treaties, 128 object of, 41
Vázquez, Gabriel, 54–5 according to Suárez, 34–5
veto, presidential (United States), 178 William III, prince of Orange, king of
Vickers, Brian, 216 England, 121, 154
Vidal, Fernando, 33 William the Conqueror, 169
Virginia Williams, Howard, 138
House of Burgesses, 156–7 Wilson, James, 150, 159–62, 168–9
named by Sir Walter Raleigh, 157 milestones in his life, 159
Virginia Company, 157 on Pufendorf, 160, 162
Vitoria, Francisco de, 54 Wilson, Peter H., 98
voluntarism, 31 Wokler, Robert, 20
Vulgate, the, 51 Wolff, Christian, 23, 108–9, 201
and cameralism, 120
Wakefield, Andre, 118 and conscience, 117
Wales, conquest of by England, 164 and Hobbes, 23, 116
Walker, Mack, 119 and Vattel, 120–1, 123
Walter of Bruges, 2 as a bore, 109
War of the Spanish Succession, 121 as disciple of Leibniz, 109
Ward, Lee, 166 difference with Leibniz on perfectibility,
Ware, Kallistos, 89 111, 143
Warner, Daniel, 203–4 exile from Prussia, 119, 185
West Indies, 180 Imperial Baron of Holy Roman Empire,
Westphalia, Peace of, 95–6, 98, 102, 118, 119
131, 185, 187, 200 moral persons, as different in kind from
Whaley, Joachim, 100, 131, 185 natural ones, 117
‘What Does it Mean to Orient Oneself in on civitas maxima, 118–20
Thinking?’ (Kant), 134–5 on cognition, 115
Whately, Thomas, 152–5, 157–9, 226 on conscience, 113–17
Whelan, Frederick G., 122, 124 on duties, perfect and imperfect, 113–15,
Whitman, James Q., 188 128
Wieacker, Franz, 188 on law of nations, 116–19
will. See also Pufendorf on the will, Suárez on natural law, necessary and voluntary,
on the will 114–15, 117
and freedom, 14, 21, 29–30, 38, 40–2, on the rector, 118, 127, 141
72, 76, 102, 133 on the state, 115–16, 130
of contradiction, 79 on the will, 115
of contrariety, 36, 79 Wolff, Martin, 23
and motivation, 115, 124 Word, the, 57, 71–3, 75, 77
and positive law, 196
and sovereignty, 14, 22, 24, 65, Yirush, Craig, 148
91–2, 102, 120, 125–6, 196, Young-Bruehl, Elisabeth, 179
205, 218
as controller of passions, 178 Zashin, Elliot, 1
as power of agent to act as efficient cause Zuckert, Michael P., 146, 165
of its actions, 61 Zumel, Francisco de, 38
as ruler of state, 3 Zurbuchen, Simone, 74, 101, 127

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The Moral Person of the State

ben holland is a lecturer in international relations in the School of

Cambridge University Press is part of the University of Cambridge.

Acknowledgements page viii

Introduction: Bodies, Souls, Persons, States 1

blackletter font of Das deutsche Genossenschaftsrecht, so special thanks to

For by Art is created that great LEVIATHAN called a COMMON-WEALTH,

Visard’.21 Both terms – prosōpon and persona – somewhat later began to

By contrast, someone who represents either an irresponsible human

to locate it in either of his categories of natural or artiﬁcial persons.28 It

and suggestion.32 Hobbes’s conception of the ﬁctional person of the

English political debate’, Basil Kennet’s translation of Pufendorf’s major

state is certainly something like a corporation. The point about it existing

When they do the latter, then a composite or compound moral person

misconstrued by those who have written about Pufendorf’s philosophy in

recovery of their transcendent intellection’.64 Pufendorf was the central

Civil sovereignty is the moral entity that individuals will in order to

protection’.71 Hunter stressed that Pufendorf was an even more thor-

‘theories, arguments, conceptual schemes, [and] specialized vocabular-

thus portrayed, which is elemental to Pufendorf’s conception of the

law on the European continent, and thus I call them collectively

inaugurated and itself to exemplify another cluster of interpretations of

During the late sixteenth century, a handful of Iberian Jesuit theologians

matters relating to the expiation of sin, but also to truth, to property, to

I. Molina and Suárez on Free Will

an act that, in coming immediately from the will, is inherently self-willed

power to move in one direction or another’.27 However, Molina did not

II. The Immediate Context: The Controversy de auxiliis

Scripture is ambiguous about the extent to which human beings are

two kinds of necessity, only one of which Aquinas considered inimical to

strange kind of predetermination, but it is, Báñez maintained, a

The indifference attributed to the will by Báñez is asserted on two

would act in the various circumstances in which they ﬁnd themselves,

grounding objection to middle knowledge’, Proceedings of the American Catholic

end-directed behaviour; on the Jesuit view espoused by Molina and

III. The Broader Context: The Society of Jesus and

(i) The Mission of Confession

enabling spiritual progress, ‘a devout practice, not a duty’.66 Penitents

The accommodation of moral considerations to circumstances lent the

bypass Inquisitorial tribunals. This would contribute to the distrust in

(ii) Renaissance Humanism and Probability

orator will endeavour to convince his audience by use of probabilities:

Probability, then, for Cicero, is the resemblance to the truth, or veri-

colleges, became the leading exponents of casuistry’.87 There were few

(iii) Rule Sixty-Five in Canon Law

However, violence erupted – for reasons that are difﬁcult to determine.

men intolerably to what amounts to just one opinion, which would be an

(iv) The Language of dominium

behaviours – was part of a worldview that was teleological and relational;

juridical allocation’.104 Where the Dominican conception of poverty was

In the context of the vocabulary surrounding the sacrament of penance,

is Aquinas’s, the teleological, objectivist and relational aspects of which

dominus himself; ‘the perspective of the common good is absent’.110

For Báñez, human action participates in divine action. He did not

Trinitarian framework, which we shall encounter in Chapter 2. This was

Hobbesian theory of sovereignty for continental European

I. Molinist Liberty and Lutheranism

mutably and contingently, happens in fact nonetheless necessarily and

Likewise, Calvin stressed God’s universal and total providence, so that

Luther admonished his ﬂock not to inquire how this conception of an

divine assistance of grace, but that justiﬁcation is instead a declaration that

Calvinists, by contrast, continued to deny free will in the name of

Graybill has called ‘evangelical free will’. Blanching at a corollary of