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History of the Human Sciences

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DOI: 10.1177/0952695119865134

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Angela Leahy
Murdoch University, Australia

Abstract
Natural law contains much social thought that predates sociology and related disciplines,
and can be seen as part of the prehistory of the human sciences. Key concerns of natural
law thinkers include the achievement of social life and society, and the individual’s place
therein. However, there is an enduring tendency within sociology to dismiss the ahis-
toricism and universalism of natural law, and therefore to reject natural law thought in its
entirety. This article proposes an approach that rescues the sociological relevance of
natural law. It draws on the respective methods of Chris Thornhill and Gary Wickham,
who each seek to recover the importance of natural law for sociology. Thornhill treats
natural law as a valid sociological object by focusing on its functions within society rather
than engaging with its ahistorical concepts. His focus on the external functions of natural
law, however, leads to a neglect of the internal conceptualisations of the social world in
natural law thought. This in turn leads to a misinterpretation of Hobbes and voluntarist
natural law. Wickham, on the other hand, explores in detail Hobbesian conceptions of
society and the individual that Wickham argues can be utilised within contemporary
sociology. This article revises Thornhill’s methodological framework in order to secure a
space for the recovery of natural law as social thought. This approach allows for the
recognition of natural law as an important piece of the epistemological background
against which contemporary understandings of the human and society emerged.

Keywords
Hobbes, natural law, sociology, Chris Thornhill, Gary Wickham

Corresponding author:
Angela Leahy, College of Arts, Business, Law and Social Sciences, Murdoch University, 90 South Street,
Murdoch WA, 6150, Australia.
Email: a.leahy@murdoch.edu.au
2 History of the Human Sciences XX(X)

Introduction
The classical sociological dismissal of natural law ideas can be traced back to the work
of Bentham, whose ‘epistemic prejudices influenced Marx, Durkheim, and Weber’
(Somers and Roberts, 2008: 396). Particularly influential is Bentham’s ‘hilarious ridi-
cule’ of the idea of natural rights (ibid.: 386), a key concept within natural law thought.
Margaret Somers and Christopher Roberts argue Bentham produces a ‘deviously nimble
rhetoric’ in his characterisation of natural rights as ‘nonsense on stilts’, a phrase in which
‘the positivist antipathy to natural rights is fully expressed’ (ibid.: 396; see also 411–12;
Carrabine, 2006: 193; Lukes, 1993: 28; Sjoberg, Gill, and Williams, 2001: 18; Woodi-
wiss, 2005: 49). The dismissal of natural rights in classical sociology is particularly
observable in Marx’s detailed criticism of the ‘rights of man’, as presented in the
1789 French Declaration of the Rights of Man and of the Citizen, in his work ‘On the
Jewish Question’ (see Fine, 2013: 233–4; Hynes et al., 2010: 814; Turner, 1993: 492).
Chris Thornhill argues the respective ideal typical and scientific methods of Weber
and Durkheim negated natural law, and that Weber’s approach in particular was
‘designed to eradicate all transcendental principles from sociological reconstruction’
(Thornhill, 2013: 199). Similarly, Bryan Turner points to Durkheim’s positivist view
of law and his separation of the concerns of sociology from those of philosophy (Turner,
1993: 490–1). He also identifies the Weberian fact/value distinction as a significant
obstacle in relation to the recovery of natural law thought in sociology (ibid.: 489; see
also Morris, 2006: 4). Weber’s historical account of the rationalisation of law, including
a number of changes associated with the rise of legal positivism – the ‘decline of
religious tradition’, the ‘secularisation of the normative foundations of the law’, and
‘the conflict between formal and substantive law’ – is tied to his account of the demise of
natural law (Turner, 1993: 493–4). For Thornhill, Weber’s critique of natural law is ‘of
great methodological importance’ in the latter’s work (Thornhill, 2013: 199).
Robert Fine describes the rejection of natural law as ‘perhaps one of the core epis-
temic and normative convictions of sociology’ (Fine, 2013: 222–3). Thornhill too argues
classical sociology’s dismissal of natural law was a formative element of the discipline
(Thornhill, 2013: 198–201; see also Chernilo and Fine, 2013: 192). He observes a
‘founding self-construction of sociology as averse to natural law’ (Thornhill, 2013:
213; emphasis in original), where natural law is conceived ‘as a realm of norms located
hypostatically against social facts’ (ibid.: 201). A number of scholars question the
traditional dismissal of natural law within sociology, and seek to recover aspects of this
large body of thought that they argue are relevant to sociology (see Chernilo, 2013a,
2013b; Fine, 2013; Thornhill, 2013; Turner, 1995, 1997, 2006; Van Krieken, 2002;
Wickham, 2014).
This article attempts to contribute to this growing body of work by advocating a
particular approach to natural law that it argues makes natural law thought more acces-
sible for sociological analysis. This approach takes the work of Thornhill (2013) as an
indispensable starting point. Thornhill identifies a major limitation in the classical socio-
logical critique that grounds the continued dismissal of natural law within sociology. He
notes a traditional sociological tendency to engage with the ‘literal’ claims of natural
law, that is, the universalist, ahistorical ideas within natural law thought (ibid.: 200–1).
Leahy 3

The rejection of those universalist ideas leads to a tendency to dismiss works of natural
law in their entirety, a tendency seen in the examples noted above. Thornhill argues that
rather than engaging with the universalist claims of natural law, sociologists can recover
natural law as a valid sociological object by exploring both the social functions of
natural law thought within the social world and the social conditions of its production.
He therefore calls his proposed way of reading natural law a ‘functional’ approach
(ibid.: 213).
This article calls for a more comprehensive recovery of natural law than is currently
achievable within Thornhill’s methodological framework. It proposes an approach to
natural law that allows for the examination of not only its external functions within the
social world, but its internal conceptualisations of the social world and the individual.
The article further contends that an accurate account of the external functions of any
natural law theory will necessarily rely on an understanding of its internal, ‘literal’
conceptualisations. It proposes reinstating the importance of the universalist claims of
natural law, not as claims of truth to be either accepted or ridiculed, but as part of the
epistemological scaffolding of natural law. They can be recognised as characteristic
elements of a particular epistemological milieu within which sociologically relevant
conceptualisations of the individual and the social world are articulated, conceptualisa-
tions that sociologists and social theorists can build on. This approach allows for the
examination of natural law as social thought.
The article begins by looking at Parsons’ critique of Hobbesian natural law as an
enduring example of the ways in which prominent thinkers within the discipline have
helped shape sociology’s dismissal of natural law. It then explores in more detail some of
the natural law concepts touched on in the Parsonian analysis, locating them within
wider natural law thought. The article then considers Thornhill’s attempt to recover
natural law for sociology. It sets out his methodological arguments and points to ways
in which his study of natural law would be strengthened by the inclusion of the approach
proposed here, particularly his account of the functions of early modern natural law.
Here the article draws on the work of natural law historian Ian Hunter, whose detailed
examination of the internal narratives of natural law theories produces a markedly
different account of their social functions than that provided by Thornhill. In its final
section, the article considers Gary Wickham’s ‘Hobbesian sociology’ (2014) as an
example of the kind of approach to natural law advocated here. His work demonstrates
that sociology is well equipped to examine and build on the social thought that can be
found within historical works of natural law. Rather than treating natural law as having
nothing to offer sociology, the discipline has much to gain by recognising natural law as
part of the epistemological background against which sociological conceptions of the
social individual took shape.

The legacy of Parsons’ interpretation of Hobbesian natural law

Parsons’ interpretation of Hobbes serves as a good example of the ways in which socio-
logical thinking has been shaped by its opposition to natural law. Robert van Krieken
(2002) details the legacy of Parsons in this regard. He argues that following Parsons’ The
Structure of Social Action (ibid.: 258–9), ‘the very best exponents of sociological
4 History of the Human Sciences XX(X)

thought seem determined to cast Hobbes as a negative reference point for sociology as a
particular mode of perception and analysis’ (ibid.: 261). Wickham too observes that the
Parsonian interpretation has been influential (Wickham, 2014: 149). While he notes that
a disciplinary misunderstanding and neglect of Hobbesian natural law predates Parsons
(ibid.: 148), he points to a strong ‘anti-Hobbes sentiment’ in sociology following Parsons
(ibid.: 151).
A key characteristic of the Parsonian reading is that it downplays the important social
elements in Hobbesian natural law, particularly in relation to the state of nature. The
Hobbesian version of this key conceptual device in natural law thought is well known,
given his familiar description of the state of nature as an environment in which life is
‘solitary, poore, nasty, brutish and short’ (Hobbes, 1991[1651]: 89). According to the
Parsonian interpretation, the Hobbesian state of nature is a pre-social realm, filled with
egoistic, ‘natural’, ‘presocial’ individuals who require the external imposition of order
(Van Krieken, 2002: 258–9). This interpretation allows Parsons to set a Hobbesian focus
on ‘factual order’ against a sociological concern with ‘social order’ (Wickham, 2014:
149, quoting Parsons), after which the question of ‘social order’ secures a central place in
sociology (Van Krieken, 2002: 259). It is a move that has Parsons ‘effectively wiping
Hobbes from an entire discipline’ (Wickham, 2014: 149).
Sociologists continue to portray Hobbes as an individualist who neglects the social
embeddedness of the individual (Wickham, 2014: 150). Van Krieken quotes Nisbet, for
example, who refers to ‘the natural character of the individual - his precultural, pre-
social, and prepolitical character’ in his reading of Hobbes (Nisbet, cited in van Krieken,
2002: 258–9; emphasis in original). Van Krieken adds that although Wrong ‘very cor-
rectly’ identifies the Hobbesian state of nature as an ideal type, he ultimately adopts the
‘standard’ sociological understanding of the state of nature (ibid.: 261) as inhabited by
‘asocial’ individuals (Wrong, cited in ibid.: 261).
According to van Krieken, however, ‘this is not how Hobbes understood “the state of
nature”’ (Van Krieken, 2002: 259). As he points out, ‘like any sociologist, Hobbes took it
for granted that humans are made - by discipline, education or as we would all it today,
socialization - rather than born’ (ibid.). The Hobbesian state of nature is a depiction of
social conditions outside the state, that is, social life in the absence of a sovereign
authority and positive law (Wickham, 2014: 147). It is also a morally relativist social
space: Hobbes rejects the traditional natural law idea of a pre-existing moral order
(Haakonssen, 2002: 28), instead arguing that morality is purely subjective (Tuck,
1989: 52–3). In the stateless, lawless state of nature, therefore, ‘nothing can be unjust’
(Hobbes, cited in Raphael, 1977: 50; see also Zuckert, 2002: 193). Natural rights-bearing
individuals are able to perform any self-preserving action ‘with right’ (Hobbes, cited in
Schlatter, 1973: 139), which means that individuals hold ‘a Right to everything; even to
one anothers body’ (Hobbes, 1991[1651]: 91; emphasis in original). Each individual in
the state of nature therefore suspects others of possible attack, and is in turn an object of
suspicion (Raphael, 1977: 31).
Given these social conditions, there is a constant threat of violence and frequent actual
violence in the Hobbesian state of nature (Kavka, 1999: 2; see also Arblaster, 1984: 135;
Condren, 2002: 68; Curley, 1994: xxi–xxii). That individuals hold competing concep-
tions of ‘what is good’ also frequently leads to disagreement and violence (Wickham,
Leahy 5

2014: 143). As van Krieken points out, the Hobbesian state of nature is a depiction of a
place where there are ‘passionately held beliefs and opinions with no central authority to
decide between them’ (Van Krieken, 2002: 259). Far from neglecting the importance of
the social, the Hobbesian state of nature is a depiction of a particular social environment
in which interactions frequently lead to violence.
The Parsonian interpretation also neglects the important normative elements of
Hobbes’ theory. Parsons treats Hobbes as a utilitarian, downplaying the role of norms
(Van Krieken, 2002: 260) in both the state of nature and the Hobbesian solution to the
state of nature, that is, the establishment of the state (Wickham, 2014: 149). According to
this interpretation, Hobbes lacks ‘a sense of normative order’ (Van Krieken, 2002: 259),
and his work is therefore of limited value to sociology (Wickham, 2014: 141). Parsons
argues Hobbes’ inadequate treatment of norms can be remedied by a more rounded
sociological approach that recognises that ‘social order’ requires ‘the effective function-
ing of certain normative elements’ (Parsons, cited in Wickham, 2014: 149). This dis-
missal of Hobbesian natural law as non-normative has been particularly influential
within the discipline (Wickham, 2014: 151).
As van Krieken points out, however, ‘the “normative” solution to the problem of
order which almost everyone from Parsons onwards has suggested is specific to sociol-
ogy, having eluded Hobbes . . . is actually present in Hobbes himself’ (Van Krieken,
2002: 260). The subjective morality that leads to conflict in the Hobbesian state of nature
is necessarily replaced by ‘normative integration’ (ibid.: 259) following the establish-
ment of the Hobbesian state. As van Krieken explains, ‘Hobbes’s whole point was that it
was precisely unregulated values and beliefs which would drive humans to civil war’
(ibid.: 259; emphasis in original). The Hobbesian state produces a relatively stable
society by establishing civic normative principles relating to social peace and security
(Wickham, 2014: 140), a point discussed in more detail in a later section.
The importance of the social and normative dimensions of Hobbesian natural law is
made clear when his work is located within broader natural law thought, particularly
when it is considered alongside scholastic and realist theories of natural law. A brief
discussion of these broader natural law paradigms will also help situate the respective
arguments, as detailed later, of Thornhill and Wickham, who each challenge the tradi-
tional sociological response to natural law.

Voluntarist versus realist and scholastic natural law

Realist natural law theorists take a ‘metaphysical’ view of morality; that is, they treat
‘values as ontologically inherent in the natural world’ (Haakonssen, 2004: 93–4), an
assumption seen in the ‘Aristotelian and Thomistic concept of nature as a purposeful
realm’ (Tully, 1991: xvii). The Thomist version of natural law, originating in Thomas
Aquinas’ formulation of ‘scholastic’ natural law during the 13th century, is a major
strand of realist natural law, the further development of scholasticism during the 16th
century in turn inspiring anti-scholastic natural law theories (Hunter, 2011: 476–9), to
which Hobbes is a significant contributor, as is Pufendorf, a major natural law theorist of
the 17th century (Hunter and Saunders, 2003: xii–xiii), whose work is discussed later.
6 History of the Human Sciences XX(X)

Scholasticism combines aspects of ‘Greek political philosophy’ and Christianity,

scholastic thought holding a Christianised version of the Aristotelian individual as a
zoon politikon, or ‘political animal’; the scholastic individual is assumed to have an
inherent ‘“rational and sociable” nature’ (Hunter, 2011: 477; see also Hunter and Saun-
ders, 2003: xii). Wickham refers to the Aristotelian ‘homo-duplex’, a term signifying the
dual ‘higher reasoning’ and ‘lower sensuous’ aspects of the Aristotelian individual,
pointing out it is the ‘higher reasoning’ aspect of the individual that is converted into
the notion of natural reason in the scholastic scheme (Wickham, 2014: 141).
According to scholastic natural law, individuals are equipped with innate right reason
that allows them to access natural law, and therefore to judge whether or not certain
actions conform to natural law (Harvey, 2006: 39–40; Hunter and Saunders, 2003: xii),
that is, whether certain actions are recognised as ‘objectively right’ (Hunter, 2011: 477;
see also Wickham, 2014: 142). By the use of their right reason, they are able to gain
access to a limited amount of divine reason, and therefore gain an understanding of how
God intends humans to live according to natural law (Hunter, 2011: 477; see also
Westerman, 1998: 212). This idea is conceived within a realist framework; realist thin-
kers ‘assume a structure to be inherent in reality that is consonant with and, hence,
accessible to reason, including human reason’ (Haakonssen, 2004: 94). This was the
prevailing approach to ‘moral philosophy’ in the 17th century (Saastamoinen, 1995: 130;
see also Haakonssen, 2004: 106).
Aquinas also extends the Aristotelian idea of the polis, in which individuals are able
to perfect their sociable and rational nature: For Aquinas, the civil state similarly func-
tions as a space in which individuals are able to perfect their sociable and rational nature
as Christian virtues. The key role of civil law – that is, the positive law of the state – is
thus to allow individuals to attain Christian perfection pursuant to natural law (Hunter,
2011: 477–8; Wickham, 2014: 141). Below divine and natural law, therefore, positive
law is considered to be just only if it adheres to the precepts of natural law (Hunter, 2011:
476–8). The close connection between natural reason, natural law, positive law, and the
state in the scholastic scheme thus leads to a view of society as a ‘perfect, reason-
focused, natural society’ (Wickham, 2014: 141–2; see also Saunders, 2002: 2185).
These ideas were extended in the natural law theory of the ‘second scholasticism’,
where natural law became an important ideological tool in the context of ‘the splitting of
the church into rival Catholic and Protestant confessions in the sixteenth century, and the
associated rise of mutually hostile confessionalised states’ (Hunter, 2011: 478). Major
scholastic natural law theorist Francisco Suarez argued heretical Protestant rulers of
states could be dethroned by the pope and also assassinated, a clear example of the ways
in which scholastic natural law could be utilised ‘in the counter-Reformation battle
against Protestant churches and states’ (ibid.: 478; see also Hunter and Saunders,
2003: xii). This dangerous scholastic deployment of natural law is ‘the context in
which the anti-scholastic natural law constructions of the seventeenth century emerged’
(Hunter, 2011: 479).
These anti-scholastic natural law theories, a collection of theories also labelled Pro-
testant natural law (see Haakonssen, 1996: 15; Hunter and Saunders, 2003: xii–xiii) and
secular natural law (see Carr and Seidler, 1996: 358–9, n. 12; Hunter, 2011: 487), can be
seen as a response to the intellectual, social, moral, and political environment in which
Leahy 7

these authors were living and writing. This was a period marked by religious violence
and social and political upheaval, conditions that greatly concerned these authors and
informed their respective theorisations of ‘a natural law that would defend the civil state
against religious and moral delegitimation’ (Hunter and Saunders, 2003: xii–xiii; see
also x–xi; Saunders, 2002: 2173; Tully, 1991: xviii–xxi; Wickham, 2014: 141–4, 151).
A central feature of the natural law theories of Hobbes and Pufendorf is the rejection
of the scholastic idea of the natural society and the idea of seeking Christian perfection in
such a society: Not only does the notion of a natural society take social peace for granted,
but competing notions of perfection can become the source of violent conflicts:

The religious wars had been pursued for a divine end: to gain one’s own citizenship in
heaven by eradicating others’ heresy on earth. The new natural law would pursue peace in
‘this life,’ a life to be led ‘in society with others,’ for an end that was merely civil and
nothing higher. (Saunders, 2002: 2174, quoting Pufendorf; see also Wickham, 2014: 141–4
in relation to Hobbes)

Hobbes and Pufendorf reject the realist conceptualisation of a transcendental moral order
to which individuals gain access by the use of their reason, and instead develop volun-
tarist theories (Haakonssen, 2004: 95–6). Voluntarist natural law theories treat moral
order as imposed from without, traditionally via ‘divine willing’ (ibid.: 96), the term
‘voluntarism’ referring to the emphasis on will rather than nature. Hobbes and Pufendorf
develop secular versions of voluntarist natural law, emphasising not divine will but ‘the
human will as the key explanatory factor in understanding the value schemes that make
up humanity’s cultural world’ (ibid.: 96; see also Tully, 1991: xvii). The state and its
laws are thus not natural outgrowths of natural law, but necessary structures established
in order to secure social peace and a minimalist moral order in an otherwise uncertain
moral environment (Hochstrasser, 2000: 105; Saastamoinen, 1995: 84; Van Krieken,
2002: 259; Wickham, 2014: 140–4). Moral order is imposed via human agreement,
rather than existing naturally in the world (Hunter, 2004: 694; Van Krieken, 2002:
259; Wickham, 2014: 140).
Some of the above natural law concepts are discussed by Thornhill (2013) and
Wickham (2014) in their respective attempts to recover natural law for sociology. How-
ever, their approaches to these ideas, particularly in relation to the voluntarist and realist
positions, differ considerably.

Moving beyond the traditional sociological dismissal of natural

law: Thornhill’s functional approach
Thornhill’s (2013) approach to natural law is a welcome development in the sociological
recovery of natural law. He identifies the methodological basis of classical sociology’s
dismissal of natural law, and offers a method by which sociologists can rescue natural
law as a valid sociological object. Thornhill argues sociology’s traditional rejection of
natural law is the result of its ‘literalistic’ interpretation of natural law thought, that is, its
tendency to engage with the ‘literal’ claims of natural law, including the ahistorical,
universalist ideas therein (ibid.: 200; emphasis in original). Sociology traditionally
8 History of the Human Sciences XX(X)

expresses its ‘disbelief’ (ibid.) in relation to these literal claims, rejecting natural law
principles rather than exploring the social functions of natural law thought. Thornhill
argues this is a ‘simplistic’ view of natural law (ibid.: 212) that paradoxically accepts and
internalises natural law thinking, and is therefore ‘insufficiently sociological’ (ibid.: 200;
emphasis in original). It is an approach Thornhill argues has left sociology with an
inability to recognise and explore the ways in which natural law theory has both mirrored
and impacted social structures and processes (ibid.: 200–1).
Thornhill (2013: 213) suggests a ‘functional’ approach can help refocus the distorted
lens through which sociology traditionally views natural law. A functional approach
recovers natural law as an examinable sociological object; it involves exploring ways
in which natural law has historically been utilised in society, including ways in which it
has reflected and reinforced political and social structural changes (ibid.: 201). Thornhill
points to the importance of examining ‘theories of natural law’ and ‘theoretical norms’
(ibid.: 200–1); by treating normative ideas in natural law as theoretical objects (ibid.:
214), a functional approach is able to explore the social function of those normative
claims, rather than express a normative scepticism in relation to them. Such an approach
renders accessible the ‘principles’ of natural law for sociological study:

To comprehend natural law principles, sociological theory . . . must observe that the
abstracted norms of theory, against which it has defined its methodological structure, are
in fact, like all objects, mere intrinsic parts of that positive social and historical reality,
which sociological inquiry more normally constructs as its own object. (Thornhill, 2013:
201–2)

Thornhill argues that by employing a functional approach, sociologists can recover ‘the
social status of natural law’ (ibid.: 202), and can also potentially reveal ‘natural law
reflection as a still vital formative resource in modern society’ (ibid.: 213). This focus on
the social function of natural law in Thornhill’s methodological discussion is reflected in
his case study, where he sets out ways in which natural law thought contributed and
responded to social and political changes in Europe from the medieval period to the late
Enlightenment (ibid.: 202–14).

Risks associated with a purely functional approach to natural law

While Thornhill’s work does much to redress sociology’s traditional treatment of natural
law, this article argues that his suggestion that ‘literalistic’ readings of natural law be
renounced (2013: 213) risks diminishing the importance of the literal claims of natural
law. Sociologists who adopt his functional approach might try to keep a safe distance
from the literal narratives of natural law that have traditionally inspired much socio-
logical ridicule, or perhaps provide only brief accounts of natural law concepts as part of
a broader functional approach. This risk is demonstrated in Thornhill’s work. In his
discussion of medieval natural law, for example, he refers to the utilisation of ‘natural
law’ in a general sense and appears to treat natural law as a single, undifferentiated body
of work; he does not identify any specific natural law theories that may have been the
Leahy 9

subject of his research, and makes no mention of specific concepts within natural law
that underpin the social and political transformations he examines (ibid.: 202–4).
Similarly, in his examination of the ways in which natural law enabled the positivisa-
tion of church and state laws, he discusses the establishment of church law that drew on
‘the divine/natural law ordained by God’ (Thornhill, 2013: 202; emphasis in original),
but does not explain the difference between divine law and natural law. He also writes of
the ‘infusion of divine/natural law’ in the church, ‘the rise of natural law in the church’,
‘legal systematization in the church, underpinned by concepts of divine/natural law’, ‘the
universalist ideas of natural law’, ‘the use of natural law arguments’ (ibid.: 202–4), and
so on: all general references to natural law that do not identify the particular natural law
ideas or arguments he refers to.
In his methodological discussion, Thornhill (2013: 213) appears in places to treat
natural law as a body of thought whose source is located in ‘society’ rather than in the
minds of specific authors. He argues, for example, that ‘it is important to analyse natural
law principles as constructs that societies have objectively generated for themselves’,
adding that ‘it is important to appreciate natural laws, and the deductive or normative
principles supporting these, as socially generated facts’ (ibid.; emphasis in original).
These statements evoke an image of natural law as a general normative orientation that is
reproduced within and by society.
Thornhill does, however, refer in a number of places to specific authors and specific
natural law ideas. In his discussion of the function of early modern natural law, he
examines in some detail the respective natural law arguments of Hobbes and Leibniz,
and compares the functional implications of their ideas in turn (Thornhill, 2013: 207–9).
Thornhill notes the works of these two authors were produced during a period in which
‘natural law arguments were harnessed to diametrically opposed and acutely controver-
sialized political strategies’ (ibid.: 206), and he treats the respective approaches of
Hobbes and Leibniz as representative of the two opposing sides in this debate. He argues
these prima facie rival natural law theories served a similar functional role in strengthen-
ing state power and state law (ibid.: 206–7).
This article contends, however, that Thornhill’s account of this natural law debate and
its functional implications demonstrates well the abovementioned risks associated with
the promotion of a functional approach that downplays the importance of the literal
narratives of natural law thought: A less than comprehensive reading of the relevant
literal claims within Hobbesian and Leibnizian natural law theories compromises Thorn-
hill’s functional account of these theories. Before exploring Thornhill’s treatment of
Hobbes and Leibniz, it is necessary to outline the particular approach to natural law
proposed here.

Reinstating the importance of the literal narratives of natural

law: A sociological approach
This article proposes Thornhill’s distinction between a functional and literalistic
approach be expanded to include a further approach that reinstates the importance of
the literal claims of natural law, but avoids the ‘simplistic’ reactive response to those
literal claims that Thornhill rightly criticises (2013: 212). This approach allows for the
10 History of the Human Sciences XX(X)

recognition of the important place of universalism in natural law thought without the
accompanying obligation to express one’s disbelief in relation to universalist, ahistorical
ideas. Once freed from this obligation, sociologists can describe, analyse, and critique
these universalist ideas, not in terms of their believability as statements of truth, but as
part of the epistemological framework of natural law. This approach allows sociologists
to access the social thought that sits alongside universalist ideas in natural law, without
getting tangled up in its universalist scaffolding.
The approach proposed here can be said to resemble the customary treatment of Marx
within sociology: While sociologists may note the importance of Marx’s utopian or
universalist ideas in his overall scheme, they are not generally obliged to believe those
ideas when they attempt to utilise and build on his critique of capitalism, nor are they
obliged to reject his works in their entirety if they disbelieve the utopian or universalist
ideas therein. Sociologists build on Marx’s notion of alienation, for example, without
necessarily adopting his essentialist view of the human on which his theory of alienation
is built. However, understanding his essentialist view of the human is necessary in order
to fully appreciate his position in relation to alienation.
Similarly, sociologically relevant ideas produced in natural law thought cannot be
understood in a vacuum. It is important to understand the universalist ideas in natural law
that underpin the social thought that can be found therein. For example, as noted earlier,
Hobbes assumes natural rights are primary features of the individual (Schlatter, 1973:
139; Tuck, 1989: 63–4), an idea that underpins his political and social theory. However,
it is not necessary to adopt this idea in order to treat his social thought seriously. Thus a
clear distinction between the reactive dismissal and the theoretical understanding of the
universalist ideas in natural law allows for the recovery and study of natural law as social
thought.
Thornhill clearly works with such a distinction in mind, as he suggests that it is not
necessary to abandon the study of the literal claims of natural law altogether, that
sociologists can describe or examine the literal claims of natural law rather than provide
an ‘unreflectively literal’ response to natural law in terms of ‘disbelief’ (Thornhill, 2013:
200–1). However, Thornhill does not clearly articulate a distinction between the tradi-
tional ‘insufficiently sociological’ response (ibid.: 200; emphasis in original) and its
sociological alternative, that is, at the internal, literal level. By making this difference
explicit, both the external functions and the literal narratives of natural law, including the
social thought therein, are rendered examinable.
The approach proposed here begins to honour Thornhill’s (2013: 200–1, 213–14)
assertion that sociologists can treat natural law as ‘theory’ rather than reacting to its
doctrinal elements. This is an approach reflected in the work of natural law historians,
many of whom refer to natural law thought as ‘theory’ and natural law thinkers as
‘theorists’ (see Haakonssen, 2004: 92–3, 96, 98–9, 106; 2006: 259–60; Hochstrasser,
2000: 98; Hunter, 2011: 487; Hunter and Saunders, 2003: xii; Schlatter, 1973: 124;
Schneewind, 1993: 56; Seidler, 1990: 14, 43–4; Tuck, 1979: 21, 67, 71, 119; 1989:
91, 95; Zagorin, 2000: 34). In relation to Hobbes’ contractarian theory of obligation,
Knud Haakonssen observes that ‘it is undeniable that his theory is situated within a
doctrine of natural law and natural rights’ (Haakonssen, 1996: 33). Haakonssen’s com-
ment captures both the analytical separateness of and intimate connection between the
Leahy 11

universalist, doctrinal framework of Hobbesian natural law and Hobbes’ political theory.
Sociologists who adopt the approach proposed here would similarly recognise, rather
than react to, the universalist natural law framework within which Hobbes’ social
thought can be found.
This approach treats natural law theories with the same careful attention that other
theories are afforded within sociology; it recognises natural law thought as written by
identifiable authors, and recognises the larger natural law paradigms to which specific
natural law theories belong. It may involve exploring the interconnections between the
various conceptual pieces of natural law’s literal narratives. As a sociological approach,
it may involve describing how natural law thinkers conceptualise, for example, the ways
in which the operation of government and law affect or effect social environments, the
conditions for the creation and maintenance of social life, the connection between social
relations and individual rights, and so on. It recognises that the term ‘natural law theory’
does not refer to an undifferentiated body of work, but a collection of diverse and
sometimes incompatible theories. Daniel Chernilo and Robert Fine refer to this diversity
when they state they are able to ‘differentiate between traditional and modern, conser-
vative and radical, religious and secular forms of natural law’ (Chernilo and Fine, 2013:
191). Like the term ‘sociological theory’, ‘natural law thought’ is a term that encom-
passes many varied perspectives.
This article argues that the approach proposed here cannot be treated as merely part of
a broader functional approach. This is not to discount the ways in which it can be used
in support of a functional approach; Thornhill, for example, points to some natural
law concepts in support of his functional account. However, his distinction in its current
form – that is, between functional and literalistic approaches – does not allow for
sociological analyses of natural law theory that simply seek to describe or analyse their
internal literal concepts. A sociological examination of natural law can occur strictly at
the level of theory, that is, without any reference to the external social functions of
natural law. A good example is Bryan Turner’s use of Hobbes’ political theory as a
basis for his sociological theory of human rights (Turner, 1993: 503–4; 1995: 4; 1997;
2006: 26; 2013: 248).
It is important to add that while the approach proposed here can be undertaken strictly
at the level of theory, a functional account of any particular natural law theory cannot be
undertaken without reference to its internal, literal claims. To provide an accurate
account of the functional operation of any natural law theory necessitates an understand-
ing of the relevant literal claims of that theory. This point is demonstrated in the fol-
lowing section, where Thornhill’s functional account of early modern natural law is
compared to that of natural law scholar Ian Hunter (2004).

The functional implications of the internal narratives of natural

law: Leibniz, Hobbes, and voluntarism
Thornhill’s discussion of the functions of natural law during ‘the middle decades of the
seventeenth century’ (Thornhill, 2013: 207) centres on ways in which opposing forms of
natural law were invoked to justify opposing ‘political strategies’ broadly split between
‘absolutist’ and ‘consensual or constitutional’ perspectives – that is, natural law theories
12 History of the Human Sciences XX(X)

that placed power ‘solely in the hands of a prince’, and those that argued that ‘actors
bearing political power were subject to natural legal constraints derived from fundamen-
tal laws’, respectively (ibid.: 206; emphasis in original). Thornhill explores the opposing
contributions of the natural law theorists Hobbes and Leibniz to this debate, pointing to
differences between Hobbes’ contractarian theory and the ‘defiantly metaphysical’ per-
spective of Leibniz, the latter insisting that laws are established in accordance with
‘formal reason’ – or, as Thornhill puts it, ‘reason capable of assuming identity with
God’s own rational essence’ (ibid.: 208; emphasis in original) – and thus the ability to
recognise natural law principles, also known as ‘right reason’, as discussed earlier (see
Hunter, 2011: 477).
Despite their deep opposition, Thornhill argues the natural law theories contributing
to this debate during the 17th century played a similar functional role ‘at a more sub-
merged sociological level’, as they each reinforced the increasingly ‘autonomous’ and
centralised authority held by states over ‘rapidly enlarged social spaces’ (Thornhill,
2013: 207) and reflected the rising need for law to underpin this expanding ‘state power’
(ibid.: 209). Thornhill argues Leibniz’s support for a positive approach to law and state
power can be found paradoxically in his critique of voluntarist natural law (ibid.: 208).
According to Thornhill, Leibniz argues that since voluntarist natural law theorists do
not provide an adequate account of the ‘source’ for positive law, they ultimately rely on a
metaphysical account: Voluntarist natural law thought ‘presupposes a transcendent or
voluntaristic source outside itself’, and is therefore ‘unaccountably metaphysical’ (2013:
208; emphasis in original). Leibniz therefore argues, according to Thornhill, that volun-
tarist natural law theorists are ‘guilty of pursuing an insufficiently positivizing approach
to law’. He adds that Leibniz’s argument is that only law grounded in reason can be
‘consistently positivized’, that ‘only rational (natural) law can create positive law’. On
this basis, according to Thornhill, Leibniz ultimately ‘mirror[s] the intentions of the
voluntarists’, as he seeks to explore how law ‘might contribute to the abstraction of
political power by maximizing the positive fluidity of the state’s decision-making func-
tions’ (ibid.; emphasis and parentheses in original).
Hunter identifies this as Leibniz’s ‘circularity’ argument, one that Leibniz also
employs against Pufendorf’s voluntarist position (Hunter, 2004: 672). However, Hun-
ter’s more detailed examination of Leibniz’s argument against the voluntarists reveals
that Leibniz’s appeal to reason as a basis for law does not act as an appeal to positivism,
but as a reassertion of his metaphysical position. In contrast to Thornhill’s argument that
these opposing theories generally served to buttress state power, Hunter points to impor-
tant differences between the literal narratives of Leibnizian and voluntarist natural law
that underlie important functional differences between them in relation to state power
and autonomy (ibid.: 685).
Hunter examines Leibniz’s anti-voluntarist argument, as he applies it to Pufendorf.
According to Leibniz, Pufendorf holds that the author of positive laws ‘must have . . . just
cause for claiming a certain power over us’, yet also assumes that this authority is based
simply on the superiority of the lawgiver, which in turn derives from the laws them-
selves. For Leibniz, Pufendorf’s circular argument fails to provide a ‘just cause’ for
citizens’ obligation to positive law (Leibniz, cited in Hunter, 2004: 687). It is a volun-
tarist argument that therefore ultimately relies on a metaphysical explanation for law
Leahy 13

(Hunter, 2004: 687). For Pufendorf, however, an appeal to an extra-civil or transcen-

dental ‘just cause’ is not necessary: The individual’s obligation to law is grounded
simply in the individual’s understanding that the sovereign power will maintain security
and social peace. Leibniz cannot grasp this secular, civil explanation; he instead relies on
‘reason as the transcendent source of the norms rendering the superior’s commands just’
(ibid.: 687–8).
Hunter explains that Leibniz’s argument, rather than being an argument in support of
positivism and state power or a reflection of the ‘intentions of the voluntarists’ (see
Thornhill, 2013: 208), is a deliberate misreading of the voluntarist account of law and a
reiteration of a metaphysical basis for law that serves to weaken state power. This
functional implication is evident throughout Leibniz’s work; for example, according to
Hunter, Leibniz opposes Pufendorf’s attempt to ‘render civil authority independent of
transcendent morality’, and argues against the idea that ‘the judgments of theologians -
confessional or philosophical’ should be made ‘superfluous to civil ethics and author-
ity’, Leibniz maintaining that civil authority must submit to such judgements (Hunter,
2004: 685).
Leibniz’s position represents for Pufendorf a threat to the social peace achieved via
the establishment of the state and positive law, as it ‘tempt[s] metaphysicians to imagine
a source of civil norms higher than the exchange of obedience for protection that
institutes civil authority, thereby opening the latter to subversion’ (Hunter, 2004:
688). These ideas of Pufendorf reflect his anti-scholastic view of the individual and his
rejection of the idea of reason as a reliable source of proper conduct among humans
(ibid.: 694). For Pufendorf, given the potential wickedness of individuals, to rely on a
metaphysical explanation of the individual’s obligation to law is to practise dangerous
thinking, a view also held by Hobbes (see Haakonssen, 2006: 261–2; Hochstrasser, 2000:
105; Schneewind, 1998: 130; Westerman, 1998: 185; Wickham, 2014: 140).
While Thornhill downplays the functional differences between the scholastic and
voluntarist approaches, suggesting that during this early modern natural law debate, ‘the
essential - or functionally subliminal - thrust of natural law theories [is] not quite as
polarized as a surface-level analysis might suggest’ (Thornhill, 2013: 206; emphasis in
original), as they equally attempt ‘to envision the state as a repository of autonomous
public power’ (ibid.: 207), Hunter’s more detailed reading demonstrates ways in which
Leibniz’s natural law theory seeks to diminish state autonomy. Hunter’s work illustrates
well one of the central claims of this article: Any accurate functional account of natural
law will rely on a comprehensive understanding of the internal, literal claims of the
particular natural law theory in question. Wickham’s reading of Hobbesian natural law
further demonstrates the value of the approach to natural law proposed here.

Wickham’s ‘Hobbesian sociology’

Wickham and his co-authors have made a significant contribution to the recovery of
natural law for the discipline of sociology (see Wickham, 2010, 2014; Wickham and
Evers, 2012; Wickham, Evers, and Goodie, 2017). Wickham promotes what he calls a
‘Hobbesian sociology’, suggesting Hobbes might be treated ‘as a major contributor to
sociology’ (Wickham, 2014: 140). He argues the enduring ‘lukewarm reception given to
14 History of the Human Sciences XX(X)

this important seventeenth-century social and political thinker’ following Parsons’ inter-
pretation (ibid.: 139) has led to a neglect of the sociological relevance of Hobbes, and
therefore to ‘the failure of sociology to treat Hobbes as one of its own’ (ibid.: 150).
Wickham’s Hobbesian sociology is in part an attempt to recover those important ele-
ments of Hobbesian natural law that have been lost to sociology since Parsons.
One of the Hobbesian ideas Wickham seeks to recover is his idea of society as an
artificial creation secured via the establishment of the sovereign state and its laws
(Wickham, 2014: 140–2). As Wickham points out, Hobbesian ‘society’ is ‘a distinct
domain of peaceful, secure human interaction’ (ibid.: 140). While for Hobbes it is a
fundamental law of nature to become ‘sociable’, to ‘seek peace’ (Hobbes, 1991[1651]:
106), sociability is dangerous to practise in the state of nature, as it renders the individual
more vulnerable to attack (Tuck, 1989: 59; Halldenius, 2007: 704). Although for Hobbes
the state of nature is a social space, it is not a society (Wickham, 2014: 143).
Hobbesian society is achieved by the installation of a sovereign via a social contract
that is powerful enough to inspire sufficient fear in individuals to produce in them a
willingness to act peaceably rather than violently in order to secure their self-
preservation (Wickham, 2014: 145–6). In Hobbesian society, the need to be ready to
exercise violence in order to survive is removed (Hunter, 2011: 481). The establishment
of the state therefore secures both social peace and individual security (Kriegel, 1995:
41; 2002: 15). This is a rejection of the essentialist scholastic conception of natural
society arising out of interactions between naturally sociable and rational individuals
(Wickham, 2014: 140–2). Society is for Hobbes ‘a product of sovereignty’ (ibid.: 144).
Wickham suggests the lack of knowledge within sociology of Hobbes’ conception
of society (Wickham, 2014: 148) may be due to the enduring disciplinary assumption
that Hobbes is a theorist of ‘individuals qua individuals’ rather than ‘individuals
within society’ (ibid.: 150). While the individual is indeed a major concept in
Hobbes’ work, his conceptualisation of the individual directly informs his treatment
of society (ibid.: 140).
Wickham also highlights the important normative elements of Hobbesian natural law
that have been lost to the discipline following Parsons (Wickham, 2014: 149). As noted
earlier, Hobbes’ understanding of the great importance people place on values informs
his models of both the state of nature and society (ibid.: 142–3; Wickham and Evers,
2012). Given the danger associated with subjective morality in the Hobbesian state of
nature (Van Krieken, 2002: 259), Hobbesian society is necessarily secured by a sover-
eign authority committed to a minimalist normative principle: ‘the fundamental impor-
tance of peace and security’ (Wickham, 2014: 140; see also Bayatrizi, 2008: 26). The
sovereign state ‘will allow the “thousands of normative desires for the good life” to
flourish, but only if they do not disturb the one overriding norm’ (Wickham, 2014: 150,
quoting Hobbes). Again, this is a decidedly anti-scholastic account of the individual and
society. For Hobbes, society is an ‘achievement’ secured in the face of dangerous
competing notions of ‘the good life’, rather than a natural outgrowth of human reason
and sociability (ibid.: 147, 150).
Wickham further argues that sociology, in its neglect of the Hobbesian conception of
society as an achievement, leans towards a scholastic position that reinstates reason as a
basis for society, arguing that ‘traces of scholastic thinking are present (albeit only in
Leahy 15

their secular form, without direct reference to Aquinas) in the not uncommon modern
sociological proposition that society is natural and based much more in reason than in
rule’ (Wickham, 2014: 142; parentheses in original). In its dismissal of Hobbesian
natural law, sociology has failed to grasp the important differences between the scho-
lastic and Hobbesian approaches, and has rendered itself blind to its own secular reflec-
tion of the scholastic account of the reasonable individual as ‘the source of solidarity’
(ibid.). A ‘Hobbesian sociology’ takes seriously the conception of society as an ‘achieve-
ment’ rather than as an inevitable outcome of human interaction (ibid.: 151). It is a
particular understanding of society that, in its rejection of the naturally reason-endowed
individual, is arguably more sociological than the traditional sociological conception of
society Wickham outlines.
Wickham’s work clearly illustrates the usefulness of the approach to natural law
proposed in this article. Recognising, rather than rejecting outright, the universalist
framework within which Hobbes’ social thought can be found allows him to engage
with that social thought, and indeed to argue for the application of Hobbes’ conception of
society as a theoretical tool within sociology. This approach also allows Wickham to
draw on Hobbes in his critique of the traditional sociological understanding of society,
and to note parallels between sociology and scholastic natural law in this regard.

Conclusion
The approach to natural law proposed in this article can be applied to other bodies of
thought besides natural law. Moving beyond the traditional reactive approach to uni-
versalism may address the current impasse in sociology in relation to human rights, for
example. A number of sociologists note that sociology traditionally dismisses the con-
cept of human rights, and therefore neglects the importance of human rights discourse in
the social world (see Connell, 1995: 25–8; Hynes et al., 2010: 811–12; O’Byrne, 2012:
832–3; Roach Anleu, 1999: 201; Short, 2010: 833; Sjoberg, Gill, and Williams, 2001:
12–14, 18–19; Somers and Roberts, 2008: 390, 396–7, 414; Turner, 1993, 1995, 2002:
602; Woodiwiss, 2005: 128). Sociology’s continued expression of ‘disbelief’ in relation
to the universalist claims of human rights thought might be called ‘insufficiently socio-
logical’, to borrow from Thornhill (2013: 200; emphasis in original); it is a position that
precludes a genuinely sociological account of human rights. It can be argued sociology’s
reactive approach to human rights discourages not only an examination of the functions
of human rights thought in contemporary society, but also an examination of the internal
claims of human rights thought, including the conceptualisation of the rights-bearing
individual and that individual’s place in the social world.
While a central aim of this article has been to reinstate the importance of the literal
narratives of natural law thought, it has not been an attempt to render less important the
functional recovery of natural law as promoted by Thornhill. Both approaches are
important elements of the sociological recovery of natural law. The expansion of Thorn-
hill’s methodological framework to include the approach proposed here represents the
acknowledgement of two analytically distinct and genuinely sociological approaches,
while also acknowledging the enduring influence of the traditional reactive approach to
natural law within the discipline.
16 History of the Human Sciences XX(X)

Natural law historians have long recognised natural law as containing social thought
(see Dreitzel, 2003: 258; Hochstrasser, 2000: 95; Martinich, 1992: 10; Raphael, 1977:
18; Tully, 1991: xxii–xxiii; Westerman, 1998: 205), and indeed have described some
natural law works as containing ‘sociology’ (see Saastamoinen, 1995: 20; Tuck, 1992:
86–7; Westerman, 1998: 210–11). Natural law has much to say about the social world
and the socially embedded individual therein. By revising Thornhill’s methodological
distinction in the ways described above, it is hoped natural law can be recognised as a
body of social thought worthy of sociological examination.

Acknowledgements
I thank the two anonymous reviewers for their invaluable comments on an earlier draft. Their
helpful suggestions improved the article considerably.

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research, authorship,
and/or publication of this article.

Funding
The author received no financial support for the research, authorship, and/or publication of this
article.

ORCID iD
Angela Leahy https://orcid.org/0000-0001-7190-2763

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Author biography
Angela Leahy completed her PhD at Murdoch University in 2017. Her research is concerned with
the sociology of human rights, law and the state, and natural law theory. Her current work explores
the possibilities of a social conception of human rights as a basis for social solidarity in late
modernity.