## 1. Life & Works



Samuel Pufendorf was born on January 8, 1632 in Dorfchemnitz, a small
town southwest of Chemnitz in Saxony. The region's Protestant
elector, Johann Georg, had just been compelled by the Imperial Edict
of Restitution (1629), and by Tilly's sack of Magdeburg (1631),
to abandon his neutral stance in the Thirty Years War and join the
newly arrived (1630) Swedes under Gustavus Adolphus in an
anti-Habsburg alliance. This, and his return to the Imperial fold in
1635, exposed his territories to previously avoided predations that
would influence the young Pufendorf's outlook on the Empire,
religion, and political power - if not also the human condition
more generally. Samuel's father, Esaias Pufendorf, assumed the
Lutheran pastorate at nearby Floha in 1633, and it was there a
few years later that the family experienced first-hand the terrors of
the war (Doring 1996a). There were ten children beside Samuel,
seven of whom survived to adulthood. Of these he was the second
youngest of four brothers, some three years behind Esaias
(1628-1687), who would become one of Europe's most
accomplished diplomats and remained, as well, Samuel's lifelong
confidant and benefactor (Berenger 1993, Fiedler 2003). The
dedication in Pufendorf's *Select Academic Dissertations*
(DAS 1675b) acknowledges the debt.



Like his brothers, Pufendorf was home-schooled until age thirteen
(1645), when his poverty and Latinity qualified him for admission to
the subsidized *Furstenschule* at Grimma, near Leipzig.
There he studied grammar, logic, rhetoric, the Bible, Lutheran
theology, and the Greek and Latin classics (Meyer 1894). His
particular relish for the latter laid the foundations of the broad
philological competence evident in and formative of his natural law
writings. Indeed, shortly before leaving for Leipzig in the fall of
1650 he was chosen to compose a Latin poem celebrating the 100th
anniversary of the school.



Leipzig: The university at Leipzig was far more cultivated and diverse
than acknowledged by 19th-century authors like Treitschke (Treitschke
1897; Doring 2004, 1994), though it remained a center of Lutheran
orthodoxy, polemically anti-Calvinist and anti-Catholic, and generally
devoted to a metaphysical scholasticism and Aristotelianism closely
tied to theology. Samuel's studies there included this
discipline, which his father had intended as a preparation for the
ministry. However, like his brother Esaias, and as indicated by his
own extra-curricular activities in the *Collegium Anthologicum*
- a student academic society before which he made some fifty
presentations on philological, biblical, historical, and political
themes (in KVS 1995e, pp. 21-86]; see Doring 1988,1992)
- he also expanded his studies into other areas including
philosophy, jurisprudence, and mathematics. He remained at Leipzig
until early 1658, with an intervening year (1657) at Jena where he
received his *Magister* (bachelor's) degree. In Jena,
Pufendorf (like Leibniz after him) lived and studied with Erhard
Weigel (1625-1699), the eclectic mathematician and polymath (who
had moved there from Leipzig several years earlier) by whom he was
introduced to Galileo, Grotius, Descartes, and Hobbes - authors
without whom his future views would have been unimaginable. It was
from Weigel, too, that Pufendorf seems to have derived the important
distinction between physical and moral entities, as well as the
methodological ideal of a mathematically rigorous, or demonstrative
system of moral philosophy (Sprenger 1996) to which he initially
aspired (especially in distinguishing himself from Aristotelian virtue
theory).



Denmark: Sweden's involvement in the Thirty Years War and its
stake in the Westphalian treaty that ended it increased the presence
of its aristocrats at many German courts and universities, including
Leipzig and Heidelberg. Esaias had already parlayed such contacts into
a Swedish diplomatic career and now urged his brother to do the same,
in view of the limited professional prospects in Saxony. Thus, in
April 1658 Samuel assumed the post of tutor to the family of
Sweden's special envoy to Copenhagen, Peter Julius Coyet. This
choice proved eventful, for when Charles X. Gustav unexpectedly
renewed the First Northern War (1655-1660) against Denmark, the
Swedish delegation was imprisoned for eight months. It was then,
without access to library or books, that Pufendorf wrote his first
major work, *Elements of Universal Jurisprudence* (EJU 1660),
which is explicitly based on Grotius and Hobbes. Upon being released
in 1659, and after a serious illness and nearly dying by shipwreck in
the Baltic, Pufendorf went to Holland as Coyet's secretary. In
spring 1660 he was enrolled at Leiden University, and though we have
few details about this period it appears that he turned to philology
again. He became acquainted with the classical scholar Johann
Friedrich Gronovius and prepared editions of several Neo-Latin works,
including Johannes Meursius, *Miscellanea Laconica* (1660) and
Johannes Lauremberg, *Graecia antiqua* (1661). More important,
however, was his acquaintance with Peter de Groot, Hugo's son
and the Palatine Elector's representative in Holland. For it was
at his suggestion that Pufendorf strategically dedicated his captivity
manuscript to Karl Ludwig (1617-1680), who promptly responded
with the offer of a university position at Heidelberg (Doring
2006).



Heidelberg: The Palatinate was one of the most devastated and
depopulated regions during the Thirty Years War, and its university
reopened only in 1652. Karl Ludwig sought initially to install
Pufendorf in the (upper) law faculty there, as there was a vacancy in
Roman law (Justinian's *Institutes*). However, when both
Pufendorf and the faculty senate demurred, the offer became a
professorship in "philology and the law of nations" within
the (lower, or preparatory) philosophy faculty - a position that
addressed both the university's needs and Pufendorf's more
obvious qualifications. There is no clear basis for Pufendorf's
claim to have held the very first chair in "the law of nature
and of nations" in Germany, and no support for the academic
legend that he later sought a position in the law faculty and, when
passed over, spitefully wrote *The Present State of Germany*
(Monz. 1667) - a severe critique of legal theories about the
Empire - to prove his qualifications (Doring 2006). Much of
Pufendorf's time in Heidelberg was taken up with lecturing (on
Grotius and Tacitus), and with developing the ideas of the
*Elements*, particularly through a series of dissertations that
- according to the practice of the time - were written
mostly by himself but defended orally by his students. The latter
included a number of Swedish nobles - such as his former charge,
the young (Wilhelm Julius) Coyet, and the son of the Swedish
chancellor Gabriel Gabrielsson Oxenstierna, and the (illegitimate) son
of the late Charles X. Gustav (Gustav Carlsson) - some of whom
also resided with Pufendorf. These and other services on behalf of
Sweden's interests in Heidelberg, and the continuing support of
Esaias, led to the offer, in late 1666, of a position at the newly
established University of Lund (in Scania, the Danish province
recently acquired by Sweden). Pufendorf's departure from
Heidelberg was apparently a career move and he always spoke positively
of his time there, explicitly valuing the "freedom to
philosophize" that he had enjoyed (Jagerskjold
1985).



Sweden: Pufendorf arrived in Lund in mid-1668 to assume his position as
*professor primarius* of the law of nature and of nations (in
the Law faculty), and of ethics and politics (in the Philosophy
faculty). Immediately popular as a teacher, well-connected at court,
as well as confident and outspoken, he was soon embroiled in personal
and academic conflicts with some of his colleagues, particularly the
jurist Nikolaus Beckmann and the theologian Josua Schwartz, who
recruited the Lutheran bishop of Lund (Peter Winstrup) to their cause.
Their discontent with Pufendorf's *On the Law of Nature and
of Nations* (DJN 1672), whose publication they actively tried to
hinder, was articulated in *An Index of Certain Novelties ...
against the Foundations of Orthodoxy* (*Index quarundam
novitatum ... contra orthodoxa fundamenta* [1673]) - a
list of thirty-one supposed errors in that work. The religious
coloration of some accusations made it a dangerous matter for
Pufendorf, yet he managed through his court connections to suppress
both the *Index* and the relentless attacks in Lund (Beckmann
was eventually banished). Still, the *Index* led to the
prohibition of Pufendorf's work in Saxony and embroiled him in
bitter conflicts with professors there for many years. His articulate
responses during this prolonged debate, including his
self-justificatory autobiography, were later published under the title
of *Scandinavian Quarrel* (ES 1686c). The collection not only
reveals Pufendorf as a consummate polemicist but is also valuable for
the clarification of important points in his natural law treatises,
and as an entry into the bitter debates (in Germany) between secular
natural lawyers and the Lutheran scholastics and theologians whom they
challenged (De Angelis 2004).



In 1673 Pufendorf published *On the Duty of Man and Citizen
According to Natural Law* (DO 1673), a short compendium based on
DJN that guaranteed him a place in university curricula for a century.
Moreover, a collection of his dissertations from both the Heidelberg
and Lund periods appeared in 1675 as *Select Academic
Dissertations* (DAS). That year also saw the appearance of a
lengthy political tract (*Discussion of Certain Writers of
Brandenburg* [Discussio, in KVS 1995e, pp. 235-336])
justifying Sweden's entry into the Dutch War (1672-1678)
on the side of France, particularly its unprovoked attack (1674) on
Brandenburg. This war also occasioned a Danish invasion of Scania,
including Lund, and even though the young Charles XI (1655-1697)
defeated the invaders, the university remained closed for years. So
Pufendorf moved to Stockholm (1677), assuming the duties of royal
Swedish historiographer and, later, privy councillor and private
secretary (1682) to the dowager queen, Hedwig Eleonora. He continued
to cultivate his relations with the Swedish ruling class, wrote
additional political opinions (including *Dissertation on the
Alliances between Sweden and France* [Occas. 1680, in KVS, pp.
337-385]; see Saunders 2009), and began the laborious archival
work that underlay his large histories of Sweden (Gust. Ad., C.
Gust.). These accounts focused mainly on external, international
affairs. However, Pufendorf's detailed knowledge of internal
Swedish politics is evident in *Les anecdotes de Suede*
(Pufendorf 1719), which was written during Sweden's turn toward
royal absolutism in the 1680s (the *Reduktion*). That piece has
sometimes been attributed to Esaias, though there is an autograph in
Samuel's hand (Doring 2012, p. 199, n. 58).



Pufendorf had also lectured on history at Lund and Heidelberg, and in
1682 after the appearance of a pirated, Swedish version of this
material based on student notes, he issued (one of only two works in
German) *An Introduction to the History of the Principal Kingdoms
and States of Europe* (Einl.). The twelfth chapter of this work
contains a long, critical account of the papacy that had appeared
pseudonymously several years earlier (*Basilii Hyperetae
historische und politische Beschreibung der geistlichen Monarchie des
Stuhls zu Rom* [1679]). Moreover, through the 1695 English version
it acquired a thirteenth chapter, which is a actually a condensation
- by the translator (Jodocus Crull, see Seidler 2013) - of
the independent volume on Sweden (*Continued Introduction*
[Einl. 1686b]) whereby Pufendorf had supplemented the
*Introduction* in 1686. Both *Introductions* underwent
multiple editions in many languages well into the 18th century. During
the early 1680s Pufendorf also prepared a significantly revised
edition (1684) of DJN which emphasized the similarities to Cumberland
and Stoicism (Palladini 2002, Saastamoinen 1999/2000) to make its
problematic Hobbesian inheritance less obvious and, perhaps, his life
easier (Palladini 1990, 2008).



Berlin: During one of his trips to the Continent to gather archival
materials and see to the publication of his *Twenty-six Books of
Commentary on Swedish Affairs from the Expedition of King Gustav
Adolph into Germany up to the Abdication of* [*Queen*]
*Christina* (Gust. Ad. 1686a), Pufendorf entered into
negotiations with the Great Elector, Frederick William of Brandenburg,
who issued a formal invitation in 1686. This was doubly attractive at
the time. For not only had Brandenburg replaced Sweden as the main
defender of an increasingly beleaguered Protestantism, now squeezed
between Austria and France, but Sweden's internal affairs had
taken a sharp turn to the right, toward monarchical absolutism and
religious conservatism. In Berlin, by contrast, Frederick
William's long-standing toleration politics met Louis
XIV's recent revocation of the Edict of Nantes with the Edict of
Potsdam (1685), which invited the fleeing Huguenots to his
territories. Also in Stockholm, despite Pufendorf's still close
relations to Charles XI and Hedwig Eleonora, some of his main
supporters at court had been dismissed, and his brother Esaias -
whose pro-French stance was now out of favor - would soon leave
Swedish service (1687) and be sentenced to death *in absentia*
(1689). Among the last works written by Pufendorf in Sweden was a
defense of Cartesianism (in the sense of independent philosophical
inquiry) against the Swedish clergy, who had sought to ban it from the
universities there (in KVS 1995e, pp. 432-47), and *Of the
Nature and Qualification of Religion in Reference to Civil
Society* (Habitu 1687), a treatise that condemned the French
dragonades and argued for the separation of church and state as a
means to religious toleration.



Given the Swedes' past hostilities with Brandenburg,
Pufendorf's thorough knowledge of their archives, and the fact
that he had yet to complete his history of Charles X. Gustav, the
Swedes were loath to send him to Berlin. However, after considerable
delay he was given what was technically a leave of absence
(Doring 1996b, Riches 2004, 2013). He arrived in Berlin in early
1688, actually to prepare a history of Frederick William (who died
later that year) but formally as an aulic and privy councillor,
positions with greater status at court than royal historian. During
the next six years Pufendorf completed his history of the Great
Elector (Fr. Wilh. 1695b) and began an account of his successor,
Frederick III (1657-1713), which is notable for its long (and
unregarded) narrative of the 1688 English Revolution (Pufendorf 1784,
see Seidler 1996). Moreover, he prepared a revised edition of *The
Present State of Germany* (published by Nikolaus Gundling in 1706)
and he wrote *The Divine Feudal Law* (Feciale 1695a), a work on
inter-confessional reconciliation (among Lutherans and Calvinists)
and, barring that, religious and political toleration. In 1694
Pufendorf returned briefly to Sweden to arrange for the publication of
his *On the Deeds of Charles Gustav, King of Sweden* (C. Gust.
1696), to collect a baronetcy (thus, his *Freiherr* status),
and to conduct some diplomatic business between the two monarchs. A
stroke or aneurism while in Stockholm led to other medical
complications that resulted in his death, in Berlin, on Oct. 26, 1694.
Quite appropriately, given his life-long interest in lay theology and
his involvement with informal religious gatherings called *collegia
pietatis*, as well as his emphasis on the biblical and moral
dimensions of religion rather than its doctrinal aspects, the funeral
sermon at the Nikolai-Kirche, where he lies buried, was delivered by
his close friend, Philipp Jakob Spener (1635-1705), one of the
founders of German Pietism.


## 2. The Method of Modern Natural Law


### 2.1 Modern Natural Law



The intellectual tradition with which Pufendorf is associated, and to
which he was later seen as central, has been variously termed modern,
secular, or Protestant. Indeed, the first chapter of his *Sample of
Controversies* (*Specimen controversiarum*, 1678; in ES)
originated the historiography of the genre. (See section 5.2 below.)
As critics of that self-interpretation have pointed out and Pufendorf
himself admitted, elements of the approach were already present in
previous traditions, including Stoicism, Roman law, Christian and
scholastic thought (particularly Vitoria, Vasquez, and Suarez), and
the Grotius commentary literature (Tierney 1997, Brett 1997,
Haakonssen 1998, Seelmann 2000, Oakley 2005, Behme 1996, Hartung 2008,
Reibstein 1953-54). Still, Pufendorf and those who shared his
outlook claimed a kind of Baconian novelty for their enterprise. This
lay in its eschewal of metaphysics and theology as foundations for
philosophy, in its rejection of appeals to authority, and in its
assertion of an 'eclectic' privilege not only to mix and
compare different perspectives, but also to place new bodies of
knowledge on a so-called scientific footing (BW #137, 1996, p.194;
Hochstrasser 2000). The founder (in the sense of first practitioner)
of this so-called "noble discipline of natural law" was
according to Pufendorf "the incomparable Hugo Grotius,"
who "set out to construct a work wherein he was not ruled by the
influence of his precedessors" and that resisted the fragmenting
tendencies of discrepant opinions (ES 2002b, p. 126).
Pufendorf's assessment was seconded by his French translator,
Jean Barbeyrac (1674-1744), who noted too - in his famous
Preface (1706), SS28 - that with Bacon and Grotius
"the Science of Morality was ... rais'd again from
the Dead" (in DJN 2005 [1729], p. 78), and that it was Pufendorf
who had corrected, improved, and systematized it. (SS31) 



The controversial beginning (and eventual *locus classicus*) of
the new approach, which would aspire to rigor and persuasion in morals
and politics in the way that Descartes had sought them for science and
metaphysics, was Grotius's "Preliminary Discourse"
or "Prolegomena" (SSSS 5-8) to *On the
Right of War and Peace* (1625). For there, the Dutch classicist,
ambassador, and corporate counsel for the Dutch East India Company
challenged the moral relativism advocated by the ancient skeptic,
Carneades, by laying out the basic requirements of communal living.
Unlike Carneades, his professional concerns were not epistemological
argument, moral proof, or philosophical system as such, but rather the
concrete mitigation of conflicts and the maintenance of peace.
Appealing to a so-called principle of sociality or sociability
(conceived as both presupposition and requirement), he sought to
identify the most general or minimal, and thus most widely acceptable,
rights and laws of human association. These focused mainly, in his own
case, on international matters of war and peace, but in other natural
lawyers like Pufendorf they addressed the entire range of human
affairs. The modernity of the project, as well as its secularism, lay
as noted in the intentional avoidance of biblical, theological, and
confessional presuppositions, and in the rejection of the essentialism
and associated teleology of classical (abstract) realism - which
were thought to generate or exacerbate rather than to resolve
intellectual and practical controversies (Forbes 1975, Tuck 1979 and
1987, Todescan 2001, Ekardt and Richter 2006, Hunter 2007b). Instead,
and in the manner of the physical sciences, the new discipline devised
explanations that emulated (somehow) mathematical reasoning and
appealed to concrete observation, attempting thereby to create a
shared outlook possessing theoretical coherence, empirical
plausibility, and pragmatic effect (Rod 1970, Dufour 1980).



This reading of the modern natural law project is rooted in the texts,
it was promoted by Barbeyrac, and it has been persuasively articulated
mainly by Tuck (1979, 1987). However, aside from criticisms focused on
its casting of Grotius and Hobbes (Mautner 2005, Sommerville 2001,
Zagorin 2000), it also seems wanting now as a comprehensive
interpretation of Pufendorf by being too inattentive to his more
immediate social and intellectual contexts. These included the
political and confessional status of the Empire and, more
specifically, the metaphysical, theological, and Lutheran culture of
northern Germany, Saxony in particular - as represented by
conservative, Platonizing scholastics like Johann Benedict Carpzov,
Adam Scherzer, Valentin Veltheim, and Valentin Alberti, with whom
Pufendorf and his younger colleague, Christian Thomasius
(1655-1728), contended through much of their academic lives
(Hunter 2007b, 2001; Palladini 1978; Sparn 1976). This conflict was
practical and immediate as well as theoretical, affecting German
academic culture for another century up to and including Kant (Hunter
2005). For the opponents propounded a theocratic politics guided by
Scriptural interpretation and supernatural metaphysics accessible only
or especially to (philosophical) theologians, in contrast to the
secular conception of the state and its subsidiary institutions (such
as the judiciary and the universities) proposed by Pufendorf and
Thomasius. In fact, the two readings may intersect and complement one
another. For Grotius, Hobbes, and also Descartes (especially his idea
of philosophical liberation and innovation) certainly influenced
Pufendorf, albeit in a characteristically German, Protestant, and
Lutheran setting that he helped to transform with their assistance
(Friedeburg 2008, Friedeburg and Seidler 2007, Dufour 2005, Schmoeckel
2013b).



Clearly, early modern Protestantism was in this as well as other
respects a house divided, pitting those inclined to transcendent
metaphysics and theological authority against the innovators who
rejected this approach. Of course, it is the latter stream - to
which Grotius, Hobbes, Pufendorf, C. Thomasius, (and sometimes Wolff)
are seen to belong - that is intended by the characterization of
early modern natural law as distinctively 'Protestant'.
Because of its rejection of scholastic rationalism and universalism,
and its interest in the particular, the singular, and the irregular
(Seidler 2011) on various levels of analysis (i.e., its appreciation
of difference and insistence on dissent, its 'protestant'
and broadly anti-'imperial' character), the discipline is
also aptly described as 'individualistic' (Haakonssen
2004). And this feature links it, in turn, to the characteristic
'voluntarism' of the genre (Schneewind 1998, Haakonssen
1998), in distinction to the generally intellectualist bent of both
ancient and medieval natural law (Hunter 2003b, Haakonssen and Seidler
2015). Voluntarism acknowledged not only God's supreme and
singular omnipotence (exercised through the divine will), and thus the
(to us) arbitrariness, contingency, and cognitive imperviousness of
the (created) world, but also humans' individual and collective
power over, and thus responsibility for, their own actions and the
institutional contexts regulating them. In sum, the approach was
secular rather than atheistic, as it typically combined relatively
sparse convictions derived from natural theology (understood as a
minimalist philosophical view about a creative, providential deity and
his formal role in generating moral obligation) with an emphasis on
personal religiosity and confessional neutrality, especially in the
political sphere. That is, it privatized (and to some extent
moralized) religion, it demarcated theology from philosophy (Tully
1991), and it denied theoretical and political advantage to
dogmatists, including those inclined to play the God card from the
side of reason or philosophical metaphysics.


### 2.2 Pufendorf's Philosophical Method



Like other early modern reformist schemes, Pufendorf's project
faced the central question of method in more specific terms. Initially
he followed the example of Weigel, his Cartesian mentor at Jena (whose
own *Arithmetic Description of Moral Wisdom* would appear only
in 1674; see Weigel 2003), by employing a quasi-mathematical approach
that aspired to demonstrative certitude in moral matters in place of
Aristotelian probabilism. Thus, the early EJU (1660) was formally
divided into Definitions (Bk.1) and Principles (Bk.2), with the latter
subdivided into Axioms and Observations. The truth and necessity of
the Axioms flowed directly "from reason itself" and a
"bare intuition of the mind," without the apprehension of
particulars, or interpersonal discussion, while the certainty of the
Observations was known by the "collation and perception of
individual things corresponding to one another," and by
"common sense and experience" (EJU 1999, pp. 6, 117;
Dufour 1980, Rod 1970, Bach 2013).



However, Pufendorf adapted this approach in subsequent works. Though
he purported still to favor a 'mathematical' over an
("lubrica, infinita, et vere invia") empirical approach
when writing to (Johan Christian von) Boineburg (1622-1672) in
January 1663 (BW #16, 1996, p. 24), criticism by Hermann Conring
(1601-1681) and Johann Heinrich Boecler (1611-1672; see
Palladini 1997a), which urged him to include a consideration of other
writers, particularly the ancients, soon led to a change in style.
Thus, beginning with his dissertations at Heidelberg, and then in the
major natural law writings at Lund that emerged therefrom, Pufendorf
eliminated the formal scaffolding of the *mos geometricus* and
interacted more explicitly and directly with other, historical
authors. The new approach enlisted his considerable erudition (DAS
cites over two hundred sources) - in a transitional culture
where a reputation for being learned remained important - while
avoiding mere commentary or appeal to intellectual authority,
procedures which he explicitly dismissed. Instead, Pufendorf now
employed an 'eclectic' method that still involved rational
analysis and argument, to be sure, but that also acknowledged the
contingency of both his worldly subject matter and its intellectual
construal (Hochstrasser 2000). The goal remained comprehensive
understanding and demonstrative certitude, but one informed by wide
and reflectively appropriated experience (derived from a careful study
of history and contemporary events), and thus yielding a more
empirically grounded and realistic (think Thucydides, Tacitus,
Machiavelli, Lipsius, Hobbes) sort of moral and political
argument.


## 3. Moral Philosophy



Pufendorf's ethical voluntarism is articulated through the
notion of "moral entities" (*entia moralia*,
derived from Weigel), to which most of EJU Book I is devoted (Rod
1969, Kobusch 1996, Lutterbeck 2009, Hunter 2019). Moral entities specify the basic
terms, concepts, categories, distinctions, and classifications -
in a sense, the metaethical grammar and vocabulary - out of
which shared moral discourse is constituted. Conversely, they
designate the ontological correlates or referents of this discourse,
which are reliant on and yet distinct from the merely physical beings
or settings in which they actually inhere. (See Statu #1, 1990, pp.
83-84, 109-10), for the compositional metaphor.) Much of
the machinery of moral entities was carried forward from the EJU to
DJN where, after being formally elaborated in the early chapters, it
clearly structures the whole work.


### 3.1 Moral Entities



Pufendorf begins DJN by noting the relative inattention to moral
entities as such in comparison to the much-studied objects of the
physical sciences, even though "it greatly behooves man to know
the nature of such entities, which he has received the faculty to
produce, and whose power deeply suffuses itself throughout his
life" (I.1.1; Pufendorf 1994a, p. 99). He calls them
"modes" - in accord with their dependence on
self-subsistent entities (cf. Forde 2011, on Lockean "mixed
modes") - and says that they are invented
(*inventis*) by reflective beings who, by comparing things,
form certain notions "superadded" to or
"imposed" on the world in order to direct or temper free
and voluntary human acts. (DJN I.1.2-3) Some moral entities are
said to "flow naturally from things themselves, as it were,
while others are superadded to physical things ... by an
intelligent power" (DJN I.1.3; Pufendorf 1994a, p. 100). This is
a relative distinction within Pufendorf's general voluntarist
framework, where God is thought to impose a basic normative dimension
on the world (conjointly and compatibly with its creation), but where
humans in fact devise the (further) distinctions that regulate their
lives together - both in philosophizing about these and by
enacting concrete practices and institutions to regulate them.
Accordingly, one might describe the former as foundational or
structural categories, and the latter as subsidiary, instrumental, or
discretionary tools of analysis. All moral entities, however, of
whatever type, depend for their existence on the will of intelligent
beings who externally assign normative, action-directing significance
to things intrinsically lacking this, but nonetheless somehow
compatible with or receptive to it.



There are four types of moral entities, says Pufendorf, analogous to
categories applied to physical things: (1) states or conditions
(*status*), (2) substances (specifically, persons), and modes
in a more specific sense - namely, (3) moral qualities
(affective/effective modes) and (4) moral quantities (estimative
modes). As in the physical realm, moral 'states' designate
a kind of (moral-legal) space in which persons (like bodies) operate
and orient themselves; they are sub-posed by the latter even though
they also, in a sense, depend on them for their existence. Pufendorf
distinguishes two such states, natural and adventitious, the former
referring to the natural state occupied by all humans as such (thus,
the "state of humanity"), and the latter to the special
conditions, institutions, or standing (e.g., commercial, marital,
civil) that differentially accompany it, in being created by and
imposed on particular sorts of persons. Personhood or moral
substantiality refers in turn to the various roles or agencies that
humans play or assume in such contexts, either simply as individuals,
or as composites or collectives, and either on their own behalf or for
others (e.g., sovereigns, ambassadors). Since we typically enact
multiple, overlapping moral personae, it is possible for these to
conflict, not only in the case of individuals but also collectives
like economic associations, religious groups, and political entities
like states, empires, or confederations. It is therefore important to
articulate the respective obligations and rights of (different kinds
of) persons, and to assess and rank them in terms of their relative
moral importance.



Such distinctions require the use of moral qualities and quantities,
which are respectively affective and estimative modes. The latter
involve the valuation of persons, things, or actions in terms of their
social status or esteem, their price (economic value), or their desert
(as in punishment and reward) - all of which are inexact,
comparative, and subject to alteration or adjustment (i.e., moral
imposition is an ongoing process) (Seidler 2018). Moral qualities, in turn, affect
(have an effect on) persons and are either formal (e.g., titles) or
operative, with the latter subdivided into passive and active
varieties. Passive operative qualities enable someone "rightly
to have, suffer, admit, or receive something" (DJN I.1.20),
while active operative qualities are those by which we can morally
affect or move others, as it were. (See Auer 2008, for an association
with Hohfeld.) They are divided into the more familiar notions of
power/authority (*potestas*), obligation (*obligatio*),
and right (*ius*) - which constitute the moral dynamics
of social life. All such notions or entities, it is important to keep
in mind, are imposed or assigned rather than given or found; the
scheme is fundamentally 'positivistic'.



The inherited term 'right' (*ius*) is ambiguous,
says Pufendorf, and it sometimes stands for law (*lex*). Though
it may also be classed as a passive moral quality (as in allowing
someone rightly [*recte*] to receive things), it is active
insofar as it permits us to command persons and possess things. It is
similar, in the latter respect, to power or authority
(*potestas*), which is subdivided into four types depending on
whether it is wielded over persons or things - either
one's own or those of others. Authority over one's own
person and actions is freedom (*libertas*), and over those of
others sovereignty (*imperium*); moral power over one's
own things is ownership or dominion (*dominium*), and over
those of others lordship (*servitus*). Each kind of power may
be acquired, lost, or held in certain ways: for example, the efficacy
or strength of authority may be 'perfect' (complete,
exceptionless, enforceable) or 'imperfect' (limited,
flexible, merely hortatory or desirable), as may the force of rights;
and the rest of DJN is essentially an account of how this occurs in
the different areas (spaces, or states) of life. The influence of
Pufendorf's distinctions and their exhaustive application to
particular life sectors was enormous, creating the basic scaffolding
of modern moral discourse. (See Hruschka [2015 et alia].)


### 3.2 Moral Necessity



Obligation refers to the "moral necessity" at work in such
relationships, by which one is "bound" to do, admit, or
suffer something (DJN I.1.21), and thus it applies to all spheres
where authority, right, or other forms of moral normativity operate.
Pufendorf clarifies obligation at DJN I.6, in his discussion of law,
sanction, and the claims of lawgivers. Law differs, he says there
(referring to Hobbes, *On the Citizen* [*De cive*
{1642}] 14.1), from counsel, agreement, and right alike, because by it
an obligation is "introduced into a man's mind by a
superior, that is by someone who not only has the strength to threaten
some evil against those who resist him, but also legitimate reasons
allowing him to demand that our freedom be restricted at his
discretion." (DJN I.6.9; Pufendorf 1994a, p.123) That is,
obligation has a dual aspect involving both reason and strength,
neither of which can separately give rise to it: the former generates
reverence or respect in those who are (or take themselves to be)
obligated, and the latter fear. Both are needed, since reverence
without fear does not explain the compellingness of obligation, while
fear without reverence does not explain its legitimacy (DJN III.4.6).
This analysis applies to obligation under both divine and human law,
and in the former case, especially, it raises the question of whether
voluntarism or intellectualism, or an amalgam, offers a more adequate
account of moral duty. The matter has been much debated, starting with
Leibniz's critique (1706; in Leibniz 1972) and Barbeyrac's
defense (1718; in Pufendorf 2003) of Pufendorf (see Schneewind 1996a;
Hunter 2004; Lipscomb 2005; Haakonssen 1998; Grunert 2000), and still
in recent discussions (see section 5.3 below) of normativity referring
back to those earlier treatments (Darwall 2012, Irwin 2011a-b,
Pink 2009).



More so than Grotius, Pufendorf clearly distinguished natural and
moral goods (DJN I.2.6), maintaining that the former are morally
indifferent even if generally agreed upon by humans (DJN I.4.4,
II.3.4). Thus, since moral norms are not directly linked to the
intrinsic natures or purposes of things, or to the outcomes of
actions, he was neither a teleologist nor a consequentialist in ethics
(in the sense of maintaining an obligation to achieve or realize
natural 'goods' or 'the good', which are
assumed already to be morally compelling). However, the so-called
natural goodness or evil of things, their ability to benefit or harm
us, provide the rationale for the imposition of moral entities by
intelligent beings from which obligation springs. That is, they have
(especially in the case of natural goods) a sort of evidentiary
function, explaining why the obliger wills such-and-such, and why the
obligee wills (or might be motivated to) its acceptance. Thus, when
discussing moral persons Pufendorf says that the impositions which
produce that rank or status should have a positive effect (*solidus
effectus*) on humankind and not be made frivolously, as when
Caligula declared his horse a senator, when the ancient Romans deified
their emperors, and when papists, still, declare saints by a similar
sort of post-mortem canonization - all with normative impact
(DJN I.1.15). Similarly, when explaining the legitimating aspect of
commands or obligations (human or divine), or that in them which
evokes our reverence or respect, Pufendorf stresses the commanding
party's ability and willingness to benefit (or his having done
so) those on whom the obligation lies (DJN I.6.12, DO I.5). In sum,
while natural good and evil are not the source of obligation per se,
and moral necessity is not hypothetical in that sense, they do explain
why there is such a thing as obligation at all, or what the point of
it is. Moreover, since what benefits or harms humans is known through
experience, empirical investigation, and knowledge of the past
(history), these operate as heuristics for determining our obligations
and explain why, in some cases, there may be disagreement about them.
Of course, such differences do not concern whether moral commands as
such formally obligate or not, but whether specific actions are in
fact morally commanded. That at least some of them are (Pufendorf also
allowed for indifferent actions), and that in particular moral spaces
or contexts we can usually determine which ones, is a basic assumption
of Pufendorf's theory.


### 3.3 The Natural State



The concept of a natural state is so important to Pufendorf's
theory that he considered political tracts which ignore it
"gravely defective" (Statu #1, 1990, p. 110). The idea is
discussed in no less than five of his works (EJU, DJN, DO, DAS, and
ES), which basically agree on its characterization and distinctions
(Seidler 1990, Fetscher 1960). DJN alone contains two versions: one
(II.2) to establish the general need for law and moral authority, and
the other (VII.1) to justify civil power or political sovereignty
(*imperium*). These two treatments share a common conception of
legal obligation as justified imposition by a beneficent superior with
access to sanctions. This does not make them redundant, however, even
if the political institutions created to eliminate the second,
pre-civil state of nature are enjoined by same natural law that also
commands (or induces) humans to leave their prior, pre-cultural (and
bestial) states. Civil sovereignty and its mechanisms are needed
precisely because the cooperative institutions (e.g., language,
contract, property, marriage, family, household) that lift humans out
of their previous, natural condition eventually create analogous
coordination problems on another level. Indeed, since similar
difficulties arise among civil states themselves, in an international
state of nature, there is need for yet another solution at that level.
In sum, Pufendorf's conceptions of morality, politics, and
international law are set against analogous natural states at each
level; this facilitates the respective analyses, though the remaining
differences also prevent their standardization.



The first DJN treatment of the natural state is preceded by a chapter
(II.1) on the concrete importance of law. This discussion provides a
bridge between the conceptual analysis of law and obligation, in Book
I, and the following chapter (II.2) on the natural state, which leads
in turn to the derivation of the natural law in DJN II.3. In it,
Pufendorf presents a moral anthropology suggesting what kinds of moral
entities, or what obligations and laws, should be imposed in view of
"the natural inclinations and pursuits of us mortals" (DJN
II.1.6; Pufendorf 1994a, p. 138). These reveal - especially in
comparison to beasts - that humans' greater freedom would
actually be disadvantageous to them without further regulation; that
is, randomized freedom, or license, is self-defeating. The argument is
expectably framed by Pufendorf's general assumption that such
counterproductivity would violate the divine intention of having human
actions display a certain "order, decorum, or beauty" (DJN
II.1.5; Pufendorf 1994a, p. 138); however, it is solidly based as well
on a description of observable human tendencies and behaviors. The
latter show humans to be weak, diverse, and sometimes perverse: not
only are they anxious, ambitious, envious, superstitious, resentful,
vain, vindictive, and the like; but they often disagree with one
another as well, even themselves; and yet (unlike other living things)
they are incapable of securing their basic needs without the aid of
creatures like themselves. For mutual assistance to be possible,
however, and to avoid the difficulties continually generated by the
traits above, human action must be constrained by laws of freedom, as
it were. Without these, humans would sink below the level of brutes,
whose welfare is non-voluntarily secured by physical laws, and they
would remain at liberty only to disrupt and destroy one another. This
sort of inconsistency in human nature was - on religious,
rational, prudential, and it seems aesthetic grounds -
unacceptable to Pufendorf.



The natural state is a theoretical mechanism for further articulating
these considerations. A relative notion, it appears in three distinct
but overlapping versions, the third of which is specially elaborated
by the DJN VII.1 account mentioned above. Each version involves a
polarity or implied contrast: the natural state toward God (*ad
Deum*), that in regard to oneself (*in se*), and that
toward other human beings (*ad alios homines*). The first of
these designates the human condition as such, conceived negatively as
a "state of humanity" in contrast to both the amoral state
of beasts but also "toward [or against] God." Humans
emerge from it - using their *de facto* traits and
capacities (which Pufendorf associates with "soul")
- by moralizing themselves through social interaction, gradually
articulating a normative sphere of rights and duties only formally
imposed by their creator. The second natural state, with respect to
oneself (*in se*), designates the basic helplessness of
solitary humans and their almost inevitable lapse into an
uncultivated, bestial life without mutual assistance. Classical
accounts of this state depict individual humans as frustrated in their
most basic needs and desires, and as incapable of the refinement
needed to develop their distinctive faculties and exercise their
freedom. Human interaction can sometimes and to some extent eliminate
the natural state in this sense - a process facilitated by their
prior, and concurrent, emergence from the mere state of humanity. As
the third natural state shows, however, humans may also threaten,
endanger, or interfere with one another unless their freedom is
effectively restrained by law. Here law means more than the
self-interpreted moral law already operative in the first two states
of nature (which, pace Hobbes, are not entirely lawless or amoral);
rather it refers to civil law which must be imposed by a political
superior with both the authority and the effective power to command.
Hence this natural state is best described as a pre-civil state, in
contrast to the pre-cultural and merely human states. Note: in none of
the three states does 'natural' function normatively in
the sense of a model or ideal to be realized, as in some other forms
of natural law theory. Instead, norms emerge as one leaves such
natural conditions.



As already suggested, the three conditions overlap. Thus, imperfect
humans always remain (albeit tenuously) in the initial state of (mere)
humanity (DJN II.2.9-10), even when the other two natural states
have been partially sublated by culture and politics; for they are
always subject to, and somehow responsible for, the norms deriving
from divine imposition or, alternatively, required by and for human
beings as such. That is, as neither beasts nor gods, they lack the
automatism of the former and the spontaneous goodness of the latter,
and always carry a fallible burden of judgment, as it were. The latter
two states may coincide as well, though usually incompletely, in that
humans may exit a pre-cultural state of need while still in a
pre-civil state of insecurity, or they may enjoy the security of a
civil state while relatively deprived of cultural goods. As well, even
though need satisfaction and cultural development typically occur
before and apart from political order, in cities as opposed to states,
the latter sometimes seem a precondition of the former processes
- as Pufendorf knew well from the circumstances of the Thirty
Years War. 



The pre-cultural and pre-civil states of nature especially (i.e.,
those conditions respectively lacking in these respects) are further
distinguished into full or perfect, and partial or limited versions.
The former is purely mythical or hypothetical in that no humans can
exist without their fellows. Complete non-cooperation or complete
hostility are simply impossible, since no one would survive, and the
only reason to consider such scenarios is as heuristic devices
highlighting the conditions that humans actually inhabit (Behme
2009a). Indeed, as Rousseau would iterate in his own way, extreme
versions of the natural state are mere extrapolations from the more
limited, or mixed, conditions found in actual human history and
experience - as when rival families, clans, states, or
(occasionally) formerly cultivated and civil-ized individuals (e.g.,
Crusoe), are temporarily left to their own devices. Much of
Pufendorf's discussion on the topic takes place through critical
interaction with Grotius, Hobbes, and Spinoza, whose comments on the
natural state he appropriates, alters, or rejects. The paradoxical
upshot of his examination is that humans as such never were, are, or
will be in a pure, full, or perfect natural state, since it would be a
completely barbarous, bellicose, and thus deadly condition. Thus far,
Hobbes was correct. However, as Pufendorf says in rhetorical
opposition to him, Hobbes rather overstated the case; for the natural
state is actually a state of 'peace' (DJN II.2.7) -
albeit an imperfect, unstable, and insecure peace (DJN II.2.12).
Accordingly, humans cannot ever - at least in this life -
entirely leave the natural state (in all three senses) behind, as they
are always imperfectly socialized, (only) partially cultivated, and
incompletely or inadequately civil-ized (politic-ized). This explains
their lifelong subjection to moral law and obligation (however
understood), and their need - Pufendorf thought - for some
sort of civil subjugation. That is, insofar as they manage to survive
and thrive at all, they do so through incompletely realized forms of
social cooperation that must (in a variety of ways) be constantly
maintained and improved.


### 3.4 The Law of Nature



Accordingly, "the most common rule [*regula*]" of
actions, called the right (*ius*) or law (*lex*) of
nature, enjoins that humans "must, inasmuch as [they] can,
cultivate and maintain toward others a peaceable sociality that is
consistent with the native character and end of humankind in
general" (DJN II.3. 1 and 15; Pufendorf 1994a, pp. 148, 152).
This law does not rest on an intrinsic morality of actions, an
absolute value of persons, on common agreement among humans, or even
on the long-term utility that generally follows compliance with its
injunctions (DJN II.3.4, 7-8,10) - though the latter two
are not denied. Rather, it appeals to a divine superior who is taken
to enjoin that which right reason itself can discover to be in
humans' interest. (DJN II.3.19) That is, while the law's
content or practical purposiveness is articulated by right reason
observing "man's nature, condition, and inclinations,
... other things external to man, especially those capable of
benefiting or harming him in some way[,] ... and the kinds of
assistance and restraint he needs" (DJN II.3.14; Pufendorf
1994a, p. 151), its normative force as law depends formally on the
will of a super-human authority with the power of sanction (DJN
II.3.19-20). Pufendorf grants that the latter relationship
remains "somewhat obscure" for those who follow the light
of reason alone, since natural sanctions are imperfect and
supernatural sanctions out of play (DJN II.3.21, III.4.6). However,
the voluntarist problem of arbitrariness is avoided by positing
(Pufendorf thinks proving, through natural theology [DO I.4]) divine
benevolence (providence) and consistency: human nature and the law
regulating it are willed together by God for human benefit (DJN
II.3.4-5). (More agnostically, one might refer to the benignity
of things, as it were, the starting assumption that, at the least, the
world is not decidedly against us.) And that supposition in turn is
supported by the evidence of actual experience (both historical and
contemporary), which is in any case the only way to discern and
understand the law's requirements (DJN II.3.12). In short, God
is not perverse, and the world not entirely inhospitable to morality
and human welfare.



Pufendorf acknowledges the fundamental reality of self-love and the
possibility of reading the natural law as a merely instrumental rule.
However, he denies that self-love is the only human motive or
necessarily in conflict with other motives, and argues that in fact
its aims can be fully or really achieved only through the natural law;
this does command humans to love themselves, albeit in a mitigated,
restrained, and thus more successful way (DJN II.3.14 and 18). That
is, humans are not totally selfish or totally altruistic, but
partially both. Hence the natural law does not forbid the pursuit of
self-interest but merely regulates it, enjoining both the care of self
and the care of others that humans already seek (in a limited and
inadequate fashion). If human nature tended toward one or other
extreme, the law's injunctions would be either impossible or
unnecessary (i.e., pointless); it is precisely humans' medial
nature, their motivationally mixed constitution, that accounts for the
law's normative force - in both its rational (legitimate
reasons) and sanctional (strength) aspects. The argument certainly
requires its voluntarist (and theistic) premise, but it relies as much
on the compatible (and, supposedly, confirmatory) deliverances of
general human experience. In practice, given the stakes involved
according to either interpretation, it often may not matter which is
emphasized. And this was undoubtedly why (beside its non-theological
foundation) Pufendorf's more perceptive religious critics
resisted it and often accused him of Hobbism, and why in turn his
secular adherents were not alienated by the deity lingering in the
background.


### 3.5 Types of Duties



Toward the end of his discussion of the natural law's main
principle, Pufendorf joins Hobbes in subsuming international (*ius
gentium*) under natural law (DJN II.3.23) - which is
critical for understanding both - and makes some distinctions
that shape the rest of the work (Reibstein 1955, Seidler 2015). Like
Grotius, he contrasts "matters which the natural law disposes by
*direct precept or prohibition* from those that reason has
persuaded men to institute on account of sociality, or that may be
undertaken by virtue of a license flowing directly from these
institutions - in which case they are said to have a
*reductive relation* to the natural law" (DJN II.3.22;
Pufendorf 1994a, p. 156; emphasis added). More formatively, he divides
the law's injunctions - loosely reflecting the divisions
of the natural state - into those toward God (*adversus
Deum*), toward ourselves (*adversus seipsum*), and toward
other humans (*adversus alios homines*). The first category is
treated separately in the pedagogically oriented DO (I.4), written
while Pufendorf was fighting charges of atheism in Lund. However, DJN
(II.4.3-4, III.4.4) folds it into the second group, particularly
the law's (i.e., God's) command that we cultivate our
minds by developing appropriate beliefs about God through careful
consideration of the supposedly convincing arguments of natural
theology - a strategy that recalls the difficulties noted above.
The third category's precepts regarding other humans are divided
into absolute and hypothetical injunctions, the former obligating all
men and women as such, whatever their status, and the latter -
as in the direct/reductive distinction above - presupposing
certain states or institutions introduced by them (DJN II.3.24).
Hypothetical injunctions are also distinguished from positive civil
laws that may appeal to them for justification, even if based on
particular states' advantage or specific legislators'
volitions. The three most important human institutions governed by
hypothetical laws of nature are speech, dominion over things
(property) and price (the valuation of things), and human sovereignty
(including the civil state) - the subjects of DJN IV-V and
VI-VIII. Book II concludes with three more chapters treating the
various duties toward ourselves (II.4), the right and limits of
self-defense (II.5), and the right of necessity (II.6).



Before turning to various categories of hypothetical duties in Book
III, Pufendorf examines several absolute requirements toward other
humans. The first is the prime natural law directive - also
found in Grotius and Hobbes - without which social life could
not exist: that no one should injure another and, if they have, that
reparation should be made (DJN III.1). Second, since injury can be
done to others not only by damaging their bodies or things, but also
their self-esteem, humans must show mutual respect and treat one
another as natural equals: for "one cannot lead a social life
with someone by whom one is not esteemed at least as a man,
..." (DJN III.2.1; Pufendorf 1994a, p. 159). The basis of
this requirement is not human nature regarded metaphysically (or
transcendentally) as an absolute value, but a so-called equality of
right or law (*ius*) consisting merely of our joint obligation
(per natural law) to cultivate a social life (DJN III.2.2; (Fiorillo
2013a, Saastamoinen 2010, Haakonssen 2011). Human moral equality so
conceived also leads Pufendorf to reject the notion of natural
slavery, even though he allows its compatibility with certain kinds of
contractual subjection in both pre-civil and civil society (DJN
III.2.8-9). Third, beside observing the minimalist requirements
not to injure or insult others, Pufendorf notes, one must also seek to
benefit them, "so that I am glad that others who share my nature
also live upon this earth" (DJN III.3.1; Pufendorf 1994a, p.
165). This introduces the important distinction between perfect and
imperfect duties, the latter consisting of so-called duties of
humanity which, though owed in the same sense as perfect duties,
cannot be compelled. There are a number of interesting discussions
here, addressing the right of passage "for legitimate
reasons" (*justas causas*, DJN III.3.5), the duty of
hospitality, and the right of immigration - some of which recur
in the fuller treatment of international law at the end of DJN VIII.
Duties of humanity often depend on special circumstances. Thus,
Pufendorf could consistently approve of Frederick William's
liberal (and self-serving) pro-Huguenot immigration policy in
Brandenburg while supporting Charles XI's tighter restrictions
in Sweden (KVS 1995e, pp. 472, 505; Habitu SS54, 2002c, pp.
118-21). Moreover, in the immediate context, he disagrees with
Vitoria (DJN III.3.9) by limiting the so-called right of commerce,
including territorial access for such purposes, especially as it was
used by Europeans in their conquest of America (Cavallar 2002, 2008;
Hunter 2007a).



Since imperfect duties of humanity do not suffice for maintaining
social relations, particularly those involving precise mutual
expectations, Pufendorf introduces (DJN III.4) another class of
absolute duties arising from pacts among individuals. The natural law
stipulates no specifics here but merely commands that we enter into
some such consensual arrangements, since without them sociality would
be hampered and humans remain in the natural state. Pact-generated
obligations are both adventitious, or based upon some antecedent human
deed responding to circumstance, and perfect in the sense of specific
and compellable. They arise from either unilateral promises or
bilateral agreements, and they create perfect rights (i.e., justified
expectations of exact performance) in others (DJN I.7.7). It appears
here that Pufendorf is an obligation theorist in that rights derive
from obligations (DJN III.5.1; cf. VIII.3.5), yet there are also
rights without corresponding obligations; that is, correlativity
exists, but incompletely (Mautner 1991, 1989). He also rejects once
more Hobbes's notion of a right to all things and maintains that
rights claims to natural objects must rest, if they are to have
normative force, on the express or tacit consent of others (DJN
III.5.2-3); that is, they arise out of social interaction and
are not presupposed by it. Given its importance for the development of
human social life, five more chapters are devoted to the topic of
promises and pacts: on their nature, subject-matter, types, and
conditionality, as well as the sorts of individual and collective
agents capable of generating consent-based obligations by promising or
agreeing with one another. The discussion as a whole is fundamental to
the hypothetical laws of nature articulated in the rest of the work,
in the context of various consensually created adventitious human
institutions.


### 3.6 Speech, Property, and Commerce



Since humans' emergence from the pre-cultural and pre-civil
states of nature is neither strictly concomitant or parallel, nor
sequential, the development of DJN after Book III cannot be strictly
continuous in either a topical or historical sense. Rather, it falls
into two partially overlapping sectors. Books IV-V deal with
human efforts to leave the natural state of need
(*indigentia*), while Books VI-VIII address the problem
of security created by weakness (*imbecillitas*). Both require
the creation of new, complex, and formally organized kinds of human
cooperation that address both the growing diversity and inconsistency
of human desires, and the increase in human numbers.



Fundamental to both developments, however, is the institution of human
speech and the rules that make it effective, or possible (DJN IV.1;
Hochstrasser 2000). For without speech in the sense of symbolic
communication human sociality would remain at a primitive and
unsustainable level, in that the terms of human cooperation could not
be articulated and agreed upon. Conversely - and hinting at the
general providentialism that Pufendorf substitutes for traditional
metaphysical teleology - speech, or the communication of thought
to others via sound, would be "of hardly any use" without
a social life (DJN IV.1.1). Unlike natural signs or associations
(e.g., dawn, smoke, groans), speech is an artificial construct of
humans over time: learned rather than congenital, and arbitrary or
accidental instead of naturally uniform, it is a clear instance of the
willful imposition of moral entities upon the world so as to give rise
to new obligations. (DJN IV.1.4-5) Its utility depends upon
consent (tacit or express) and on the concomitant requirements of
consistency and veracity, which are both instrumentally and -
insofar as humans are obligated to be social - morally
necessary. However, though humans are bound by the general conventions
of language and by the requirement of not lying to one another, they
retain a certain flexibility of action based on others' varying
right to know one's thoughts, and the actual consequences of
such revelations. Thus Pufendorf distinguishes between lies
(*mendacia*) and untruths (*falsiloquia*) and also
allows for noninjurious deceptions (DJN IV.1.9). This proviso applies
not only to everyday life and its "harmless arts of simulation
and dissimulation," but also to the realm of politics and
international relations, where total candor or naivete may be
counterproductive and defeat the injunctions of sociality (DJN
IV.1.17; Martin 2009). Pufendorf returns to it repeatedly in
discussing the duties of (esp. contemporary) historians (Seidler 1997,
Piirimae 2008). 



It is clear in this as well as other discussions how Pufendorf's
anthropological and social realism allows or actually requires a
certain flexibility in articulating context-specific obligations of
the natural law, even or especially within the particular human
institutions created to enact sociality. It is because of this
flexibility and consequent slipperiness of language that he goes on to
treat of oaths (DJN IV.2) which, presuming "human diffidence,
infidelity, ignorance, and impotence" (DJN IV.2.2), are a
special means for assuring others (through associated divine or civil
sanctions) of the reliability of our speech acts and the promises and
pacts that rest thereon. Of course, since oaths themselves involve
presumptions and tacit conditions arising from the nature of
particular cases (DJN IV.2.14), they too may require further
regulation. Thus, like other human institutions based on pacts, the
rules of speech both antedate civil sovereignty but come eventually to
depend on it in certain ways as well.



A fundamental use of speech is to regulate humans' use of
external things by appeal to the right of appropriation or dominion.
The latter rests on things' necessity or utility for humans, and
their presumed (and divinely intended) availability for man's
use because of these features (DJN IV.3.1-3). Property
designates a moral quality imposed on things, and it has a moral
effect on other humans rather than (or beside) a physical impact on
the things or animals owned (DJN IV.4.1). That is, it is a social
relationship among humans (thus, solitary Adam's relation to
things was not ownership per se, and could not be transmitted) based
on express or tacit agreements that may vary according to
circumstances, so long as the ends of human sociality are served (DJN
IV.4.4). Before or without such agreements, worldly objects are in a
state of negative community, meaning that they belong to no one in
particular but lie open for anyone to use as needed (DJN
IV.4.2-3, 4.13). 



While Pufendorf acknowledges a kind of primitive community within
family units, under the aegis of the father, he distinguishes this
from positive communion in the sense of common ownership (Buckle
1991). Both this and private dominion, or property properly speaking,
arise gradually with the proliferation and dispersion of family units,
as humans and their needs multiply (DJN IV.4.12). For under such
conditions it becomes necessary to distinguish mine from thine through
certain exclusionary conventions, if quarrels are to be avoided.
Typically (but optionally), humans agree to a right of first occupancy
or direct use, limited by the proviso of actual utility and the
ability to defend what is occupied (DJN IV.6.3) - though this
does not suffice for ownership without consent. Some things like the
open ocean may (or can) not be owned, and so peaceful navigation
thereon "belongs to everyone and is free." However, other
kinds of exclusive restrictions, such as unequal trade relationships
among nations, are permitted, and "that vaunted freedom of trade
does not prevent a state from favoring its own citizens over
outsiders" (DJN IV.5.9-10). Also, since property is a
moral relationship rather than a physical quality, the same things may
be subject to different types of overlapping ownership (DJN IV.4.2).
Dominion need not be exclusive, and humans may grant others a perfect
or imperfect right over their possessions. Indeed, they may be
obligated to do so (DJN IV.8).



Since owned objects serve different uses and are not equally valued by
everyone, their exchange requires a common measure of comparison to
determine their so-called moral quantity, or price (DJN
V.1.1-2). Price is either ordinary or eminent, the latter
determined by money as an independent, or objective, unit of value.
Money is explicitly created to serve the ends of exchange among both
individuals and states, and without it commercial pacts, or contracts,
regarding both goods and services are inconceivable (DJN V.2.4). While
civil rulers have the authority to regulate property relationships in
their realms (particularly specific forms of acquisition like hunting
and fishing), and trade with outsiders, they are less free to
determine the relative price of things since such arbitrariness would
disrupt economic exchange, especially interstate commerce (DJN IV.6.5;
V.1.14). In general, sovereign determinations are less apt or useful
in pre- or non-civil institutions that relieve human need, than in
regard to those that insure human security - if these can be
distinguished. Nonetheless, economic tools like contracts may need a
civil sanction to insure their reliability and thus efficacy, and
rulers may regulate property insofar as it affects the state's
basic security interests and welfare - not only by taxation and
eminent domain but also through controls on foreign trade and on the
growth of luxury (e.g., sumptuary laws), whereby the state's
economic strength and independence are affected (DJN VII.4.7, VIII.5;
Saeter 1996, Gaertner 2005, Young 2008, Skinner 1995, Seidler 2018).


## 4. Political Philosophy


### 4.1 Pre-Civil Societies



Like physical bodies, the moral body of the state is substantively
composed of lesser members, particularly the simple and thus primary
associations (*collegia*) of marriage, family, and household
(DJN VI.1.1). In their reproductive, rearing, and economic functions,
these basic societies mainly address the problem of human want or
need, though they also offer a minimal level of security. Their
existence shows that social cooperation is not suddenly imposed on
isolated human beings with the creation of states, but that the latter
is an additional form of association introduced to protect and
maintain already existing social units. Despite the natural
inclinations that induce individuals to form or enter them, these
proto-civil arrangements are, like states, based on agreements, and
they exhibit authority relations more or less analogous to civil
sovereignty (DJN VI.2.11). The latter becomes necessary only when
pre-civil societies increase in size, number, and complexity to the
point where their interactions become dysfunctional and security
problems unmanageable. As in the case of other moral entities that are
superimposed on one another, states do not replace pre-civil societies
but only protect, order, and - under certain conditions -
utilize them. At the same time, especially in the case of other types
of sub-state associations such as churches, they may also liberate
individuals from them (by divorcing civil from religious authority,
and allowing religious diversity in the state). (See Seidler
2002.)


#### 4.1.1 Marriage



Since it regulates reproduction, without which human society would
cease to exist, the institution of marriage is "the foundation
of social life" (DJN VI.1.7; Dufour 1972, Ehrle 1952). Humans
are obligated to enter it, though only in a general way that
presupposes capacity, opportunity, and other facilitating conditions.
Despite being commanded by God - like other natural law
obligations - its immediate origins lie in each instance in a
consensual pact between basically equal partners (DJN VI.1.12). This
holds even where a woman's (express or tacit) consent -
like terms of captivity in general - follows upon (a just) war
(DJN VI.1.9, 1.12; VI.3.5-6). Though its end differs from that
of the state (reproduction vs. security), the marital unification of
wills may establish a hierarchical, quasi-sovereignty relationship
between spouses, one of whom agrees to submit to the other's
authority; on the other hand, marriage may have the character of an
"unequal confederation," which also requires diverse but
mutual performance (i.e., command and obedience; DJN VI.1.11). What is
impermissible in both cases and institutions, however, because of its
supposed dysfunctionality for governance, is a divided command or two
heads.



This forces a choice upon Pufendorf's contractual
egalitarianism, which is tempered here by his material assumptions
about the "preeminence" of the husband's sex, and
about women's allegedly unreasonable demand for additional
responsibilities. These are not absolute pronouncements, however, but
conclusions of the "ruling prudence" that is the
"pleasant sister of natural law"; that is, they rest upon
an empirical, pragmatic assessment of spouses' respective
abilities and burdens (DJN VI.1.11,18). It is important to recall in
this context the difference between modern and medieval natural law,
and that Pufendorf does not conceive human nature in essentialist
terms but rather generalizes (rightly or wrongly) from experience.
That is, apart from his personal presuppositions, his is an empirical
and not a metaphysical argument, and this makes it both circumstantial
and corrigible. To dismiss it out of hand ironically risks reaffirming
the very approach that he rejected (in general), and to overlook the
flexibility and liberatory potential of his conception of natural law
(Drakopolou 2013).



Besides, Pufendorf reassures, in marriages and states alike,
sovereignty does not exclude the possibility of mutual affection, and
spouses do not command each other in all respects but only those that
serve the institution's fundamental end. Thus, matters like the
disposition of a wife's dowry and other assets depend on the
stipulations of the original marriage agreement (DJN VI.1.11), much
like the preliminary constraints imposed upon limited civil
sovereignty by a state's fundamental laws. Pufendorf also
extends his analysis into the controversial subject of polygamy
- which he deemed rationally elusive and sometimes permissible
(DJN VI.1.16-18; Vogel 1991) - and into the topic of
divorce, where he qualifies Milton's views on the subject (DJN
VI.1.24; Palladini 2001). These and other discussions are historically
and circumstantially embedded, which accounts for their considerable
length and detail, especially when compared with shorter treatments in
other early modern authors like Hobbes and Locke. Textual comparisons
with these can be useful and enlightening (Sreedhar 2014), especially
if historical and philosophical contexts are also kept in view
(Doye 2012, Hull 1996, Buchholz 1988, Rinkens 1971, Dufour
1972).


#### 4.1.2 Family



One human institution generates and qualifies another as the parental
role supervenes on that of marital partner. Here Pufendorf follows
Hobbes in holding that mere generation cannot ground parental
authority (just as place of birth alone cannot ground patriotism), and
that this depends instead on a tacit pact based on utility (DJN
VI.2.2). Children supposedly assent to their subjection in order to
survive, and because otherwise the beneficial ends of parenthood,
which include the rearing, socializing, and civic education of
offspring, cannot be attained. Moreover, he concurs, though mothers
have primary authority over children in the state of nature where
parents are roughly equal, fathers typically acquire supremacy through
marriage pacts, which may be dictated by civil laws (DJN
VI.2.4-5). As in the spousal relationship and for similar
reasons, parents cannot be equally authoritative or sovereign
vis-a-vis their children, but one or the other must prevail. Though
this is usually the male, Pufendorf excepts Amazons and contemporary
queens in whom the civil sovereignty reposes for dynastic reasons, and
whose husbands are not kings but mere "spouses of queens."
(DJN VI.2.5) Also, like marital authority, parental power is limited
by the institution's end and normally excludes the right of life
and death, and the ability to void grown children's marriages.
(DJN VI.2.14) It ceases when children come of age and are emancipated,
though (as in the case of emigration, DJN VIII.11.3-4) it may be
extended beyond that point because of special circumstances, including
other pacts. Children always owe their parents imperfect duties of
equity and gratitude (DJN VI.2.11).


#### 4.1.3 Household



Herilic or master-slave relationships are similar to but stricter than
parental ties, and they have no natural expiration point. They too are
based on express or tacit pacts, with no natural basis beside the
qualifying suitability of some persons to rule and others to be ruled
(DJN VI.3.1-2) - which, alone, is insufficient to justify
them. Pufendorf conceives them as sovereignty- rather than as
property-relationships (DJN VI.3.7), strictly speaking, and regards
slaves not as things but as "perpetual mercenaries" (DJN
VI.3.4) who always retain an "intrinsic liberty of the
will" (DJN VI.3.10). Slavery (or servitude - the category
is wider or more diverse than often acknowledged) does not extinguish
the laws of humanity or erase all traces of humans' original
equality, even though it is possible for them to bargain away
(permanently) their freedom to command themselves (DJN VI.3.9). Even
the offspring of slaves may be retained in that status, especially
when it has been entered through war, although humanity (vs. right)
favors their liberation. States may regulate herilic relationships
like marital and parental ties, for appropriate reasons, even though
they often do not interfere. Slavery may be ended by manumission,
banishment, a failure to specify the status of slaves in one's
will, and - notably - by putting a slave into chains
(except for a crime, or as punishment). In the last case and any other
unjustified deprivation of bodily freedom, a slave is released from
his initial, pact-based obligation, which depends on reciprocity:
"For there is no pact unless contractors trust each other, and
faith cannot be violated where it does not exist." That is,
physical bonds replace or sublate moral ones, and in such a case a
slave is free to go (i.e., run away) (DJN VI.3.6, 3.11). These reasons
are similar to those why the civil bond between ruler and ruled may be
broken.


### 4.2 The State



Pufendorf's political philosophy or doctrine of the state,
including the latter's internal and external functions, is
continuous and consistent with his ethics; in fact, they are not
really distinct. Both rest on the same natural law foundation, namely
the sociality law which regulates not only pre-civil relations,
institutions, and societies but also the civil condition needed to
secure them. As thoroughly social beings who are incapable of living
alone, humans are subject to sociality's requirements at all
stages of their lives, both temporally and organizationally, and the
establishment of political authority does not leave morality and its
obligations behind but rather facilitates and extends their reach. The
tempered realism of the political sphere is not a forced abandonment
of moral norms but an articulation of the natural law's demands
amid the increasing complexities of collective human existence,
including its inevitable constraints, exclusions, and compromises. In
Pufendorf's natural law theory, politics is a form of social
ethics.


#### 4.2.1 The Origin of the State



Speaking generally (since the formation of individual states varies
greatly), the moral entity of 'the state' is self-imposed
by humans at the command of natural law when their pre-civil marital,
parental, and particularly herilic associations - as well as
other pact-based institutions such as property - become
dysfunctional because of multiplying conflicts that lead increasingly
to the unjustified use of force and, thus, reciprocal injury and
insecurity. It is a defensive and precautionary response to such
emergent conditions, a kind of cooperative scheme
(*conspiratio*) or mutual protection association created as
needed against the growing threat posed by other human beings (DJN
VII.2.1-2). Contra Aristotle, the state is not a natural or
ideal stage of human development emerging spontaneously from
humans' desire to live together (DJN VII.1.2-3), but an
adventitious, willed self-help device broadly enjoined by natural law
in either or both a prudential (i.e., recommended by sound reason) or
deontological (i.e., commanded by God) sense (DJN VII.3.2). It is not
required to eliminate human need (*indigentia*) in the
pre-cultural natural state, since cities and other forms of
association usually suffice for that (DJN VII.1.3 and 6; Brett 2011).
Rather it secures these social arrangements and their cultural gains
in the context of increased human numbers, relative scarcity and
competition, growing disagreements, and the ensuing insecurity that
comes from the interaction of individually weak and imperfectly social
beings.



State formation is explicitly driven by fear, and there is ample
reference to human wickedness, self-concern, and a willingness to
injure in Pufendorf's sketch of the pre-civil condition (DJN
VII.1-2). Still, his comments are qualified even here, in
opposition to Hobbes, and they do not amount to an anthropological
claim about the exclusive selfishness of all human beings -
which is not needed for the argument (DJN VII.1.5, 7-8). In
fact, the discussion of pre-civil conditions and institutions clearly
tempers such pessimism. For while those arrangements rely on formal
promises and pacts, they are also induced by and certainly compatible
with mutual affection, a desire for friendship, and the enjoyment of
conviviality (DJN VII.1.5, 2.4; VIII.4.3, 6.2; II.2.7, 3.16). To be
sure, such means and motives become increasingly incapable of
maintaining them, as the complex feelings regulating smaller, simpler,
and more intimate human interactions evolve into a cruder and colder
psychology of scale among composite moral persons or groups. That is,
with the reduction of familiarity, predictability, and commonality of
purpose comes a sort of primitivizing of motives in the direction of
fear. Still, Pufendorf's state is not built on a thick,
essentialist, or teleological (philosophical or theological)
anthropology - even of a negative sort - but on an
empirical, historical, or realistic assessment of actual human
affairs. This means both that the state's minimalist function as
a mutual protection agency may not be controlled or overridden by
other, substantive (e.g., religious, ethical) ends, but also that,
since fear does not necessarily eliminate other human motives but only
suppresses or distorts or overrules them, the state as guarantor of
mutual security may actually allow these to function (again) in their
proper (subordinate) contexts.


#### 4.2.2 Contractualism



Beside its sovereignty, what distinguishes Pufendorf's state
from other pact-based institutions is its size (DJN VII.2.2) -
that is, its numbers must suffice for security in particular social
and historical circumstances - and, more importantly, its manner
of formation. Conceptually, it owes its origin to two agreements and
an intervening decree (DJN VII.2.7-8). An initial contract of
association occurs when members of a multitude, or the would-be
citizens (in practice, family-fathers or patriarchs, who are the
primary or direct citizens: DJN VII.2.20, 5.12), agree with one
another to bond together for mutual security. This requires the
accession of all (full or formal) members of the resultant group, who
consent to it either absolutely or conditionally depending on whether
they agree individually to bind themselves to any form of state
selected by the majority, or only to a certain, preapproved form
satisfactory to themselves. In either case, the band (*coetus*)
thus constituted still lacks unity and has only "the rudiments
and beginnings of a state" (DJN VII.2.7; Pufendorf 1994a, p.
212), although it suffices to prevent an immediate return to the state
of nature if the second pact is temporarily suspended, as during an
interregnum (DJN VII.7.6-7, VIII.11.1).



The second pact follows the selection (via the pragmatic expedient of
majority vote; see Pasquino 2010, Schwartzberg 2008) of the specific
form of state to be instituted (monarchy, aristocracy, or democracy),
and through it each citizen of the future state subjects himself to
the specific governing agent thereby established. It is needed to
prevent the random defection and individual exceptionalism that
threaten all pre-civil agreements (DJN VII.2.3, 10), including the
first contract. At this stage or level, the individual contractors
unite their wills through separate promises of obedience to a new
moral persona equipped with distinctive (i.e., not simply transferred)
rights and obligations, and capable of using their combined strength
to discipline, compel, and thus govern effectively (DJN VII.2.5, 3.4,
8.5; cf. VI.1.12; Boucher 1998, Skinner 2002). Civil subjection is
analogous to herilic subjection or slavery, though more focused in
intent, more limited in scope, and - because of reciprocal
promises between governors and governed - potentially sublatable
in narrowly defined and (thinks Pufendorf) avoidable circumstances
(DJN VII.3.1, 2.10; Seidler 1996). Moreover, in combining a title to
command with the strength to sanction or compel, it also recalls the
general structure and rationale of the moral obligation that enjoins
humans to constitute it in the first place (cf. DJN VII.3.1, 2.13;
I.6.9, 6.12; and Section 3.2 above).


#### 4.2.3 Sovereignty



Like Bodin and Hobbes, Pufendorf identified sovereignty
(*imperium*) as the "vivifying and sustaining soul"
of the state. It is a new moral quality that emerges from the
respective commitments of rulers and ruled, consisting of the
former's right to command and the latter's duty to obey.
(DJN VII.3.1-2: Pufendorf 1994a, pp. 217-18; VII.4.12;
Holland 2012) Like other souls, as it were, sovereignty comes from God
(as author of the natural law), though only indirectly in this case,
or through the instrumentality of reasoning human beings. Thus,
throughout Book VII of DJN Pufendorf rejects the arguments of J. F.
Horn (*Politicorum pars architectonica de civitate* [1664]),
the German Filmer. Natural law bestows sovereignty on no one form of
government or on specific individuals or groups; instead, such
decisions are made by human contractors in particular circumstances.
It is always required, however, that sovereignty be supreme in the
sense that there be no superior or equivalent powers within the state.
Also, sovereignty cannot be divided, since that would fragment the
unity of will that undergirds the state as an effective authority (DJN
VII.4.11). Accordingly, all governing functions, including
legislative, judicial, penal, economic, and war-related powers must
ultimately reside in the same persona or agency. Otherwise (as in the
Holy Roman Empire whose political diseases Pufendorf diagnosed in
*The Present State of Germany* (Monz.) the state would have two
or more heads and, by reproducing the conflicts of the pre-civil
condition, would invite its own destruction.


#### 4.2.4 Forms of State



States where sovereignty is unified - whatever be their form
(monarchy, aristocracy, democracy) - are called regular, and
those where it is divided irregular (DJN VII.5.2, 5.14-15).
Irregularity always weakens a state, but each form also has its own
difficulties and weaknesses. Pufendorf does not in principle prefer
one regular form over another: God is the author of free states
(democracies) and monarchies alike (DJN VII.5.5), and sovereignty or
majesty belongs equally to all states and not just to monarchies (DJN
VII.3.3). However, humans incline differently toward particular forms
of state (DJN VII.5.11), and it is up to them to decide which ones to
implement for themselves (DJN VII.3.2). In fact, the choice appears to
be prudential in nature, since certain forms of state may require
specific human dispositions to function effectively (DJN VII.6.5), and
some forms may be more suited for particular settings. Thus, large
territories with scattered populations are better ruled as monarchies,
while smaller regions or city-states can be governed well as
democracies (DJN VII.5.22). More generally, monarchy may be more
efficient because of the simple logistics of human association (DJN
VII.5.9). Beside such forms and conditions, each type of state is also
prone to other faults or illnesses peculiar to itself, which Pufendorf
distinguishes into "vices of men" and "vices of
status" (DJN VII.5.10). The former obtain, for instance, when
(in a monarchy) rulership goes to someone unqualified for that role,
and the latter when (in a democracy) citizens are too self-assertive
and unwilling to compromise. The fact remains that even though states
are a remedy for human weakness and imperfection, as human constructs
they always remain an imperfect one (DJN VII.5.22).



This problem cannot be avoided or lessened by mixing forms of state, a
traditional expedient (Riklin 2006, Scattola 2009b, Zurbuchen 2009)
that Pufendorf rejects because of the irregularities it produces. For
mixing yields either an entity that is no state at all, because it is
held together by a mere agreement (without subjection), or one that
approximates a system of independent states, else something
'monstrous' in between (DJN VII.5.12-13). Pufendorf
does allow, though, for a distinction between forms of state and forms
of administration. Thus, a monarch may utilize executive mechanisms
that are aristocratic or democratic in nature, and similarly for other
forms of state (DJN VII.5.1, 5.13). The crucial defining factor in
each instance is the unity and locus of ultimate authority, not how
its commands are executed or policies implemented. Such arrangements
differ from so-called systems of (sovereign) states, which themselves
exhibit regular and irregular forms depending on the way their
collective authority is exercised. By discussing them Pufendorf
extends his analysis to the international sphere (DJN
VII.5.17-21; see Seidler 2011).


#### 4.2.5 Absolute and Limited Sovereignty



Contra Hobbes, Pufendorf allows that supreme sovereignty (*summum
imperium*) may be either absolute or limited (DJN VII.6.7). The
former obtains where a sovereign accepts his (her, or its) authority
with no conditions attached, the latter where citizens'
submission depends on the sovereign's initial acceptance of
certain terms, such as an existing state's fundamental laws.
These can be violated by the eventual sovereign, making his actions
injurious or illegitimate (DJN VII.8.2-4, 6.10), even though
subjects are not typically - except *in extremis* -
in a position to deny him obedience for this reason because it would
undermine the important end of sovereignty altogether (DJN
VII.8.5-6). Given human imperfections, Pufendorf clearly favors
limited sovereignty; however, and for the same reasons, while he
criticizes the abuse of absolute sovereignty he also criticizes
irrational fear thereof (DJN VII.6.8-13). Again, there is no
universal recommendation but all depends on what is needed in
particular historical circumstances where such choices present
themselves.


#### 4.2.6 State and Church



The state or sovereign necessarily controls all sub-state collectives,
including economic, political, and religious associations, especially
if they compete with it for citizens' allegiance (DJN
VII.2.21-24). Though piety is a personal matter between the
deity and individual believers, its official mediation by ecclesial
entities or churches, which also direct and organize human actions,
has a worldly impact that may interfere with the state's
functions (which are also divinely enjoined) - as Pufendorf
argued by reference to the history of Catholicism and the
papacy's role in European affairs (Einl., ch. 12, 2013; also
[1839, 1714, 1691b]). Therefore, sovereigns have the right (and
obligation) to regulate religious organizations, to examine beliefs,
and even to foster an official religion - though only to insure
compatibility with political order (DJN VII.4.11, 9.4). In fact, like
public schools (if they do not merely perpetuate scholastic
subtleties), religion may also aid the process of civic formation
- which is required because states are adventitious moral
entities devised by humans for a particular purpose, and because
(good) citizens are not born but made (DJN VII.1.3-4). However,
since they are disparate institutions regulating different moral
personae (citizens, believers), neither state nor church exists
primarily to serve the other's purposes. The state's
general authority regarding religion, and its sovereignty over all
religious groups alike, also creates room for the toleration of
religious minorities and thus restrains destabilizing confessional
conflict (Seidler 2002, Zurbuchen 2013, Lehmann 2013, Palladini
1997b). Though Pufendorf had not yet arrived at Christian
Thomasius' notion of a deconfessionalized state (Hunter 2007),
his historical awareness of religion's impact on government, and
its frequent contribution to political factionalism, made him wary of
independent religious institutions and inclined to favor state
oversight. In any case, since they issue from the same warranting
deity, he held that ultimately true politics and true (religious)
doctrine cannot conflict (DJN VII.4.8, 4.11).


#### 4.2.7 Civil Law



Despite its natural law foundation, a state's positive laws will
only partially overlap with natural law. That is, since its purpose is
not to make humans perfect but secure, only those natural laws without
which peace among citizens would be impossible should also become
civil laws (DJN VIII.1.1, III.4.6). In fact, by focusing on the
requirements of human association rather than on personal formation,
the sociality principle makes Pufendorf a legal minimalist more
generally, so that even where the natural law is silent or indifferent
"civil laws should not sanction more things than conduce to the
good of the citizens [as such] and the state" (DJN VII.9.5;
Pufendorf 1994a, p. 242). Besides, and within this narrow focal area,
it also grants legislators considerable discretion or flexibility of
application. Thus, even though civil laws should not explicitly
contravene natural law, it is sometimes excusable if they redefine or
"overlook" (*dissimulare*) certain practices
- like theft, dueling, and tacitly accepted cuckoldry -
for which "the condition of the times and the genius of a
people" do not provide a current remedy (DJN VIII.1.3). Such
practical adjustments are evident throughout Pufendorf's
detailed discussions of state laws in DJN VIII - regarding
punishment, social status (esteem), property, and war - which
are strongly prudentialist, consequentialist, and realist in
character. They evince not a substantive moralism but the same
flexible 'reason-of-state' approach that also guides his
thinking about inter-state relations. Indeed, through their common
grounding in the sociality principle, natural, civil, and
international law are in continuity and in dialogue with one another
- though in a complex and sometimes untidy way (DJN II.3.23).
That is, though as a broad divine injunction natural law is presumed
to be ultimately consistent, in practice (as specifically interpreted
by particular humans) it often appears less so; for its demands must
always be articulated in full view of not only human psychology but
also the concrete settings in which human action occurs. (Thus, as in
the case of immigration [section 3.5 above], Pufendorf could condemn
the 1640s English revolution, while approving that in 1688. See
Seidler 2001.)


#### 4.2.8 Punishment



This requirement is also evident in Pufendorf's long discussion
of the sovereign's right to punish (DJN VIII.3, Huning
2009b). Punishment presupposes a superior, and so (in contrast to
Locke) it cannot occur in either the pre-civil or the international
state of nature (DJN VIII.3.1-2, 3.7). Of course, both
individuals and states have a right to defend themselves or wage
defensive (and, in limited circumstances, preemptive) war, but neither
of these is to be construed as punishment strictly speaking. The
latter is, instead, a means of social control available only to
sovereigns for the specific purpose of restraint, deterrence, and
reform (DJN VIII.3.9). In their hands, moreover, it is more future-
than past-oriented, with the latter being important only for the sake
of the former: that is, one should not pointlessly impose evil on
someone, even if guilty, if the deed cannot be undone or the damage
repaired, for he remains after all our conspecific or fellow human
being (*cognato*) (DJN VIII.3.8). Those who have injured
another certainly owe a duty of reparation, as well as assurances
about future behavior, but they are under no obligation to submit to
punishment (DJN VIII.3.4; see end of 4.1.3 above), which is imposed
for purely consequentialist reasons. Joining Hobbes, Pufendorf
dismisses revenge as a "vain and unreasonable" motive (DJN
VIII.3.8) for punishment, and he also dismisses Selden's
"satisfaction, purgation, or expiation" (DJN VIII.3.12) as
unnecessary or meaningless notions. Moreover, he holds that penalties
are not "owed to" or "deserved by" criminals,
who are unlikely to assert such a right (DJN VIII.3.5, 3.15).
Instead,a sovereign's resort to punishment should be guided by
state interest (as, in the case of a parent, by the interests of the
family: DJN VIII.3.10), which also determines the quantity and quality
of punishment needed (DJN VIII.3.23-24). The latter should never
be excessive but guided by the actual advantages to be gained (DJN
VII.9.6-7). In some cases, punishment may even be foregone
altogether if the interest of the state demands it (DJN VIII.3.14,
16). This is because punishment is an instance of neither distributive
nor commutative (expletive) justice, but a type of administrative
sanction recommended by "prudence ... conjoined with the
duty to rule others" (DJN VIII.3.5).



In sum, Pufendorf's analysis of punishment as a whole reflects
the positive and (re)constructive attitude of the law of nature, in
both pre- and post-civil conditions, particularly its injunctions to
forgive, to accept apologies and reparations, and basically so to act
as always to further and facilitate sociality ("inasmuch as [we]
can"), rather than to frustrate or make it impossible among
human beings as we actually find them (DJN V.13.1; II.3.15, Pufendorf
1994a, p. 152). As such, it appears far removed from more absolutist
or categorical views of justice, such as the well-known statement (of
Kant in *The Metaphysics of Morals* [*Die Metaphysik der
Sitten*, 1797]) that a civil society must, before dissolving
itself, execute every convicted murderer remaining in its prisons
- a contrast that reveals well the gulf separating
Pufendorf's natural law theory from essentialist or Platonizing
views (such as Leibniz's) that challenged, and the Critical
philosophy that eventually replaced it (Hunter 2001, 2003a).


### 4.3 Natural Law and History



Pufendorf's natural law thinking developed in close interaction
with his views on other subjects such as history, religion, and
international relations; that is, his roles as academic philosopher,
court historian, and political apologist were only formally and not
intellectually distinct (Seidler 2015). This is as evident in the
seminal reflections of his early *Collegium Anthologicum*
lectures (in KVS 1995e, pp. 2-86) as it is in his later works.
Thus, the 1667 treatise on the Holy Roman Empire (Monz.) not only
studied its concrete history and institutions but also examined the
importance of sovereignty and state form, the tension between civil
and ecclesiastical authority, and the challenge of foreign relations
that emerged from these. Pufendorf's so-called works on religion
(Habitu; Feciale; Einl. [1691b, 1714, 1839]) engaged the same topics,
as well as associated questions about religious unification and
toleration, in the context of the early modern confessional state
(Parkin and Stanton 2013; Doring 1998; Zurbuchen 1999, 1996,
1991; Huning 2002b). Even Pufendorf's concretely situated
and apparently partisan defenses of the Swedish interest (Discussio,
Occas.) - which were sometimes regarded as merely contingent or
opportunistic productions - exhibit the challenge (for
particular sovereigns and their historians) of applying the natural
law's general injunctions to specific historical circumstances.
Most obviously, perhaps, his explicitly historical works -
including the long accounts of Sweden (Gust. Ad., C. Gust.) and of
Brandenburg (Fr. Wilh., Pufendorf 1784) that so distinguished him, but
also his famous *Introductions* (Einl. 1682, 1686b) -
give substance to and thus support his philosophical analysis of the
state (Seidler 1996 and 1997, Piirimae 2008, Dufour 1991c,
Krawczuk 2014). To be sure, the focus here is mainly on the external
relations and negotiations of particular states. But sovereigns must
conduct these as judiciously and effectively as their states'
internal affairs, for it is useless to have internal peace if a state
is externally weak (DJN VII.4.5). The two dimensions of statecraft are
clearly linked throughout Pufendorf's opus, which urges
sovereigns (and those who create them) to consult both long- and
short-term interests of states, distinguishing the real from the
merely apparent ones (Einl., Preface, 2013), both to avoid the
(re)emergence of an internal or external state of nature and, more
generally, to satisfy the natural law's injunction to further
sociality among humans.


## 5. Influence


### 5.1 Literary Afterlife



Pufendorf's (Latin) style is clear and careful, though also
sophisticated and colorful. For he not only mastered the art of
example but was also an aggressive, imaginative, and sometimes crass
polemicist when attacked - especially when cornered, when the
stakes were high, or when he deemed his opponents to be bellicose,
lazy, or intellectually dishonest. This alone assured that he was
eagerly and widely read. Many of his works - including Monz.
(1667), DJN (1672), DO (1673), Einl. (1682) - were published
repeatedly and translated into many European languages, both during
his lifetime and throughout most of the following century (Othmer
1970, Luig 1972, Denzer 1972, Laurent 1982, Seidler 2013), when they
became staples of university education. Of particular note in this
extensive publication history were the influential French translations
by Jean Barbeyrac, whose long notes to DJN and DO (including their
Lockean leanings) were partially assumed into the standard English
translations of these works (if not immediately then in later
editions), specifically those by Basil Kennet (DJN 1729) and Andrew
Tooke (DO 1735). In fact there was considerable interest in Pufendorf
in England (starting with Tyrrell and Locke - see Tyrrell 1681,
esp. pp. 236-59, and Thompson 1987), which also saw translations
of various other works, including *The Present State of
Germany* (Monz 1690, 1696), *The History of Popedom* (Einl.
[1691]), the *Introduction* (Einl. 1695), *Of the Nature and
Qualification of Religion, in Reference to Civil Society* (Habitu
1698), and *The Divine Feudal Law* (Feciale 1703). These and
other translations are currently being reissued by Liberty Fund, Inc.
as part of its *Natural Law and Enlightenment Classics* series,
and are readily available in its *Online Library of Liberty*.
(See Other Internet Resources below.) Pufendorf's three main
natural law works (including the early EJU) were also reprinted and
retranslated in the early twentieth century as part of the Carnegie
Endowment's *Classics of International Law* series, and
are still occasionally reissued in this form (EJU 1995a, 1995b [2009];
DJN 1995c, 1995d; DO 1995g, 1995h). However, there was never a
collective edition of Pufendorf's works in any language, before the ongoing *Gesammelte Werke* (GW) issued by the Akademie Verlag (Walter de Gruyter). This edition includes as Vol. 1 (BW 1996) the extant correspondence which, though limited in comparison to other early moderns like Leibniz, is nonetheless very useful, especially in conjunction with the polemical
essays in *Eris Scandica* (ES 2002b), which add biographical
and literary details. The shorter works collected by Doring (KVS 1995e) are not included in GW, which does or will, however, contain Feciale
(2004), Habitu (2016), DAS (1675b), and Monz.(1667). Since the long
national histories are now easily obtainable in facsimile form or as
scans (see ZVDD and Gallica, in Other Internet Resources below), all
of Pufendorf's known writings will soon be readily available to
scholars in some contemporary form.


### 5.2 18th-Century Presence



The discourse of natural law became the *lingua franca* of
18th-century moral, political, and social (including economic -
Hont 1987, 2005; Skinner 1995) thought (Haakonssen 2012; see section
2.1 above, and "Natural Law 1625-1850: Database" in
Other Internet Resources below). Pufendorf contributed much thereto by
initiating the self-referential genre of the 'history of natural
law', wherein he located himself in relation to Grotius, Hobbes
and other predecessors (*Sample of Controversies* [*Specimen
controversiarum*], 1678, Ch. 1: "On the Origin and Progress
of the Discipline of Natural Law"; later included in *Eris
Scandica* (ES 1686). His modest beginning was much enlarged by
Barbeyrac in "An Historical and Critical Account of the Science
of Morality ...," the Preface to his 1706 translation of
Pufendorf's DJN (2005 [1729]), and by Pufendorf's German
friend and disciple, Christian Thomasius, in his *Nearly Complete
History of Natural Law* (*Paulo plenior historia juris
naturalis*, 1719), as well as many others in the 18th century
(Glafey 1965 [1739]; see Hochstrasser 2000, pp. 65-71). As in
Pufendorf himself, a major theme of the genre was that of sociality
(sociability, benevolence), which was variously interpreted,
criticized, and defended in both secular and religious contexts
(Chiodi 2009, Piirimae and Schmidt 2015). The notion's
appeal in the British domain - where a way had been prepared by
Richard Cumberland (1632-1718, Cumberland 2005), whom Pufendorf
cited repeatedly in the 1684 edition of DJN - is demonstrated by
Gershom Carmichael's (1672-1729) influential student
edition (1718) of Pufendorf's *De officio* (Carmichael
2002), and by the inaugural lecture "On the Natural Sociality of
Men" (1730) of his student and successor at Glasgow, Francis
Hutcheson (1694-1746), whose thought was strongly influenced by
natural law (Hutcheson 1993, 2006, 2007). So too were many other
British moralists and social theorists, especially in the so-called
Scottish Enlightenment, including George Turnbull (1698-1748),
John Millar (1735-1801), Thomas Reid (1710-1796), and Adam
Smith (1723-1790) (Haakonssen 1996, Moore and Silverthorne 1983,
Moore 2006). Through them and others, including direct exposure to
Pufendorf's own, often reprinted works, natural law thought also
became part of the intellectual inheritance of the American Revolution
and constitutionalism (Welzel 1952, White 1978, Augat 1985, Heideking
1995, Haakonssen 1991, Logan 2013).



On the Continent, Pufendorf's influence was felt during the 18th
century through the so-called civil enlightenment of C. Thomasius and
his school, and through the frequent republication and study of his
own works. Their juridical approach to natural law persisted until the
end of the century, especially in German law faculties (Lestition
1989, Klippel 2009, Schroder 2010), where it provided a
counterweight to the metaphysical, perfectionist, and in a sense
neoscholastic tradition of natural law associated with Leibniz and
Christian Wolff (1679-1754) (Hunter 2007, 2003a, 2001;
Lutterbeck 2002, Haakonssen 2006, Ikadatsu 2002, Ottmann 2006, Schmidt
2007, Schneider 2001). Pufendorf himself maintained a presence not
only through his natural law works but also the historical writings,
especially the many versions of his *Introduction* (Einl.
1682), which was continually revised and appropriated by others to
suit the times, until nearly the end of the century (Seidler 2013).
Indeed, it was largely through this work and those of its editors,
commentators, and imitators, including Nikolaus Hieronymus Gundling
(1671-1729) and Johann Peter Lud[e]wig (1668-1743), that
Pufendorf entered the 18th-century discourse about the relation of
law, politics, and history, and stayed relevant as an international
theorist. His empirically grounded mix of history, philosophy, and law
led also into cameralism (Bruckner 1977), into the so-called
Gottingen School (Hammerstein 1972 and 1986, Vierhaus 1987), and
to the associated discipline of *Statistik* (statistics, from
the Italian *statista* [statesman] and *ragion di
stato*), with its focus on the concrete institutions and functions
of states (Zande 2010, Valera 1986, Pasquino 1986). This included
Gottfried Achenwall (1719-1772), on whom Kant lectured for many
years during both his pre-Critical and Critical periods (Achenwall
1762, Hruschka 1986, Streidl 2000). Moreover, it underlay the
century's legal codification schemes, which attempted still to
base positive on natural law in some sense (Hartung 1998, Ferronato
2005). In an equally broad sort of way, Pufendorf was also predecessor
to Jean-Jacques Burlamaqui (1694-1748) and Emmerich de Vattel
(1714-1767), whose respective works on natural and international
law were notable examples of the genre, albeit ones also influenced by
its Wolffian version. Moreover, Pufendorf and natural law were present
in the *Encyclopedie* (Schroder 2001, Burns 1999),
as well as in the prehistory of the French Revolution (Caradonna 2006,
Edelstein 2014). Finally, Pufendorf's theory of the state had a
significant formative influence on specific thinkers like Rousseau,
who criticized him and other "friends of despotism" for
undermining human freedom while nonetheless borrowing heavily from his
political conceptions (McAdam 1963, Derathe 1992, Wokler 1994,
Silvestrini 2010, Douglass 2015).


### 5.3 Eclipse & Rediscovery



Kant's Critical philosophy does not distinguish clearly between
the rather different streams of natural law that it is usually thought
to have surpassed (Hochstrasser 2000, Hartung 1998, Haakonssen 2006).
Indeed, when Kant arrived on the scene the two had already been
thoroughly commingled, and the discipline as a whole straddled an
uncomfortable position between the rational and the empirical. Its
situation now became increasingly precarious, as it was subjected to
epistemological and metaphysical challenges that it had not been
designed to meet, and whose purist, a priori assumptions it would
reject (Hunter 2001, 2002, 2005). Like much else, Kant effectively
folded natural law into the dialectical pre-history of his own system.
In fact, he hardly mentions it at all, since it does not fit the
formal schematic of his conception of the history of philosophy as a
conflict between dogmatic rationalism and sceptical empiricism. In
ethics, natural law is implicitly dismissed in the critique of
technical and prudential imperatives, and in political philosophy it
appears similarly wanting in the face of pure Right. To be sure,
Kant's own views in both areas - including the notion of
categorical obligation, the historical-political mechanism of
'unsocial sociability', and the trademark concept of
'autonomy' mediated by Rousseau's General Will
- owed significant debts to Pufendorf and the voluntarist
tradition (Schneewind 1993, 2009, 2010; Kersting 2006). However, since
his system gave that problematic a new (in)significance, it did not
play an explicit role in his discussions. Kant's sole mention of
Pufendorf (in the company of Grotius and Vattel) is a vague and
dismissive reference to the "wretched comforters"
(*leidige Troster*) who are criticized - in the
essay on *Perpetual Peace* (*Zum ewigen Frieden*, 1795)
- for their overly flexible, empirical, and situational
treatment of the law of nations (*ius gentium*). Ironically,
that approach (including sovereigns' resort to prudence and the
right of necessity) had previously been considered a strength, but
Kant saw it as little more than a recipe for endless war. In its
place, he substituted a universal, necessary, and absolute metaphysics
of right - albeit in a transcendental vein - precisely of
the sort that the 'modern' natural law theory of Hobbes
and Pufendorf had originally sought to displace because of its
pernicious social consequences. 



The actual refutation or, rather, historical erasure of natural law
was the work of post-Kantian historians like C. F. Staudlin
(1761-1826), J. G. Buhle (1763-1807), and W. G. Tennemann
(1761-1819), whose versions of the history of moral philosophy
ironically left Grotius, Pufendorf and Thomasius (Barbeyrac's
protagonists) with only minor roles to play. Even so, natural law
remained a presence in the nineteenth century. Thus, Fichte (*The
Foundations of Natural Law* [*Grundlage des Naturrechts nach
Prinzipien der Wissenschaftslehre*, 1796-97]), Schelling
(*A New Deduction of Natural Law* [*Neue Deduction des
Naturrechts*, 1797]), and the young Hegel (*The Scientific Ways
of Treating Natural Law* [*Uber die wissenschaftlichen
Behandlungsarten des Naturrechts*, 1802-3]) all published
works on "natural law" (*Naturrecht*) -
showing that the idiom remained serviceable (Klippel 1997, 2012). In
the British domain, insofar as it was not also
'idealized', Bentham's vague and dismissive attitude
toward 'natural rights', and the comparatively
circumscribed 'ethics' of Mill's utilitarianism,
found little connection with modern natural law, even through its own
eighteenth-century inheritance which that approach had helped to
shape. The rebirth of Thomism in the Catholic world toward the end of
the century, and the permutation of natural into human rights before
and after the First World War, made the disjunction and the amnesia
complete.



This debate continues, albeit in different registers and with
equivocal notions of 'natural law'. For about half of the
twentieth century (in philosophy, law, and international relations),
natural law referred to a revived Scholasticism or Neo-Thomism. This
was joined after mid-century by the 'secular' natural law
of John Finnis (1940- ) and Robert P. George (1955- ),
later by the naturalism (or neo-Aristotelianism) of Amartya Sen
(1933- ) and Martha Nussbaum (1947- ), and most recently
by a new kind of Protestant natural law with roots in
sixteenth-century Reformed theology (Grabhill 2006, VanDrunen 2010,
Witte Jr. 2008). All these approaches involve essentialist claims of
sorts, even if empirically supported, and together with a Kantian
metaphysics of the person that is variously present in versions of
John Rawls (1921-2002) and Jurgen Habermas (1929- )
they provide ontological, procedural, or constructivist foundations
for discourse about human rights and dignity, and support for
international organizations and mechanisms that police them.
Accordingly, the supposed 'right to punish' is in full
force again, as are duties to assist, to rescue, and the like -
understandably so. However, despite attempts to enlist Pufendorf in
such causes by finding the prehistory of pivotal notions like rights,
dignity, and equality in his texts (Saastamoinen 2010, Fiorillo 2013a,
Muller 2011), his natural law is actually more akin to contrarian
approaches like the neo-Hobbesianism of Carl Schmitt
(1888-1985), the agonism of Chantal Mouffe (1943-) and
James Tully (1946-), the realism of Raymond Geuss (1946-
), and even the pragmatic naturalism of Philip Kitcher (1947- ).
These perspectives are not necessarily opposed to the practical aims
of the views they oppose and criticize, it may be useful to note (also
about Pufendorf), but merely insist upon fewer suppositions, less
presumption, and more modest goals.