Natural Law and the Foundations of Political Secularism,

Transcription

1 Natural Law and the Foundations of Political Secularism, Nathaniel Mull Columbia University Draft May 22, 2015 One of the most significant developments of early modern Europe was the emergence of the idea of the state as an impersonal legal-bureaucratic entity. 1 During the age of Reformation and Wars of Religion, this new conceptual space became a battleground for competing views about the relationship between secular and spiritual authority. 2 On one side of this question, many theorists attempted to subordinate the secular authority of the state to some spiritual authority. For example, some Catholics asserted that the pope had the power to declare sovereigns illegitimate. Thus, after Elizabeth I reversed the Catholic policies of Mary through the Settlement of 1559, Pope Pius V excommunicated Elizabeth and absolved all English subjects of the duty of obedience to the crown. 3 Against this position, it was argued that secular political authority ought to be autonomous from religious authority and retain absolute sovereignty within its borders. This secular position was argued by Luther and his followers as well as many Catholic theologians of the Counter-reformation. This strong statist position, though advancing the idea of the secular state in a way, was often coupled with the idea that the state had authority over both temporal and spiritual matters within its territory. This led to the establishment of state churches and varying degrees of religious persecution and intolerance. Such a state is not fully secular because it holds 1 Quentin Skinner, Foundations of Modern Political Thought, Volume II: The Age of Reformation (Cambridge University Press, 1978), By spiritual authority, I mean both the authority of ecclesiastical government, such as the Roman and Anglican churches, and the authority claimed by the leaders of various sects. 3 Many radical Protestants held a similar view, as evinced by the seizure of the city of Münster by Anabaptists in

2 ecclesiastical power as well. This is different than a state that merely places limits on what churches and their members may do within the state: all states must do this. Rather, the state takes a stand on matters of religious doctrine and ceremony, declaring certain beliefs to be orthodox and all others heterodox and therefore illegal. A fully secular state is neutral with regard to doctrinal disputes, thus rendering religion a private rather than public matter. A fully secular idea of the state, I argue, must contain these two elements: (1) the autonomy of state sovereignty from religious authorities, either outside the state or within the state; and (2) the limiting of state authority within its borders to temporal matters, leaving religious and spiritual matters to private authorities with no coercive power. These two principles remain central to our current notion of the state as a fully secular state. In the sixteenth and seventeenth centuries, the rudiments of these two arguments were put forth by two groups of thinkers that seem at first to have little in common: the Thomist theologians of the Dominican and Jesuit orders and the Protestant natural law theorists of northern Europe. How did these two camps, which stood on opposite sides of the Reformation, arrive at similar arguments for secular political authority? I argue that this intellectual convergence is at least partially due to the fact that these two groups share one very important characteristic in common: their theories of the state were founded in large part on the idea of natural law. It is commonly argued, however, that these two groups of thinkers did not operate with a shared understanding of natural law. The first group is often described as the Second Scholastic movement. It grew out of the Thomist revival led by the Dominicans of the University of Paris Pierre Crockaert, Francisco Vitoria, and Domingo de Soto. This intellectual movement continued into the late sixteenth and early seventeenth centuries and was taken over by Jesuit thinkers such as Luis de Molina, Robert Persons, Robert Bellarmine, and Francisco 2

3 Suárez. 4 A decisive break from this tradition is held to have occurred in the early seventeenth century with Grotius. Grotius is most often cited as the father of modern natural law, and subsequent natural law thinkers Hobbes, Pufendorf, and Locke are seen as the direct intellectual heirs of Grotius and not of the Second Scholastic. 5 This division seems obvious. The Scholastics were Catholic theologians steeped in medieval thought, and their writings reflect their adherence to Thomistic orthodoxy and methodology. The Protestants, by contrast, are characterized by their immersion in the new humanism and skepticism that began to take hold in Europe in the 1570s. 6 This made them more open to the use of secular reasoning independent from Christian doctrine. In this paper, I call into question this widely accepted division between Scholastic and modern natural law. Despite important religious and philosophical differences between Scholastics and Protestants, I find that the idea of natural law remained remarkably stable throughout this period (with the important exception of Hobbes s idiosyncratic idea of natural law). I therefore argue for a single early modern idea of natural law that straddles various traditions, influences, and historical streams of thought. In the first part of the paper, I analyze three aspects of this idea: (1) knowledge of natural law, (2) the foundation of legal obligation, and (3) the scope of natural law. These three points are significant because they have been highlighted by those who want to draw a distinction between Scholastic and modern natural law. 4 Skinner, Foundations, II, Richard Tuck, Philosophy and Government, (Cambridge University Press, 1993), 172-3, ; Tuck, Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford University Press, 1999) 5-13; Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (New York: Cambridge University Press, 1996), 15-26; J. B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge University Press, 1998), 58-73; Anthony Pagden, Stoicism, Cosmopolitanism, and the Legacy of European Imperialism, Constellations, Volume 7, Issue 1 (March 2000), Tuck, Philosophy and Government, 5; Tuck, Rights of War and Peace, 5-6,

4 These are also the three central components of the idea of natural law, and they set it apart from its contemporary alternatives civic humanism and Lutheranism, among others. In the second part of the paper, I demonstrate how this tripartite idea of natural law played a central role in arguments for the secularization of the state. The first two components of natural law knowledge and obligation are central to arguments for the autonomy of the state from ecclesiastical authority. The third component the scope of natural law is necessary for arguments in favor of religious toleration. Although these ideas are most fully developed in the writings of Locke, they can be traced as far back as the beginnings of the Second Scholastic. Part One: The Early Modern Idea of Natural Law In the recent literature on the natural law tradition, scholars almost universally agree that Grotius represents a decisive turn away from the Scholastic theological interpretations of natural law toward a modern natural law characterized by secular reason. Tuck and Schneewind note that this view of Grotius dates back to the eighteenth century historians of natural law such as Jean Barbeyrac, Christian Thomasius, and Friedrich von Glafey. These scholars saw Grotius s work as a decisive break from the rigidly religious statements of natural law made by the disciples of Aquinas, and they praised Grotius for reviving natural law by making it relevant for the modern world. 7 Recent scholarship points to three ways in which natural law had to be modernized in response to humanism and skepticism. I take each of these three points in turn and argue that natural law remained a stable idea in the hands of both scholastic Catholics and humanist Protestants. 1. Human Knowledge of Natural Law 7 Tuck, Philosophy and Government, xv; Schneewind, Invention of Autonomy,

5 The modernization of natural law can be thought of as a response to an epistemological question: in the face of religious and cultural diversity, how can we know what laws and precepts belong to a universal natural law? Scholars have thus emphasized the impact of moral skepticism on the transition from Scholastic to modern natural law. Montaigne and Charron are most often cited as the skeptics who revealed the vulnerability of Scholastic natural law thinking to charges of medieval dogmatism and parochialism. It is argued that the humanist skeptics decisively demonstrated that Scholastic natural law was essentially a Christian ethic based on a conception of God that was far from universal. 8 Thus, Montaigne and Charron forced modern thinkers like Grotius to abandon Thomist doctrine in search of truly universal precepts. 9 Scholars argue that Grotius, unlike his Scholastic predecessors and contemporaries, was deeply affected by this skepticism and sought to jettison the sectarian aspects of natural law so as to make it acceptable to the modern mind. There are two possible responses to this epistemological problem. The first is the approach that has been attributed to Grotius: defending natural law on the basis of empirically observable phenomena. 10 The second is a more direct response to Montaigne s criticisms: to search for precepts that are truly or nearly universally accepted around the world. These are ways of defending the universality of natural law in a roughly scientific way rather than simply positing that God has given the natural law to all human beings. The Scholastics, like Aquinas before them, did not set out to prove that there was in fact a universal natural law given to all human beings by God. The fact that there was such a law was taken as a self-evident first principle, and all their discussions proceeded from this assumption. In this way, Grotius and his successors are indeed distinct from the Scholastics. Grotius begins each of his two major works on natural law De Indis (first published as De iure praedae 8 Haakonssen, 24. Schneewind, Tuck, Rights of War and Peace, Schneewind,

6 commentarius) and De iure belli ac pacis (hereafter DJBP) by defending the existence of a law of nature. In the prolegomena to De Indis, Grotius argues that we can know the existence of the laws of nature by observing the natural world. Our observation of animals and human beings reveals that self-love is the first principle of natural law. This principle leads to the first two precepts of natural law: first, that It shall be permissible to defend [one s own] life and to shun that which threatens to prove injurious; secondly, that It shall be permissible to acquire for oneself, and to retain, those things which are useful for life. 11 Grotius addresses the skeptics more fully in the prolegomena to DJBP. He refutes the claim made by Carneades that rights claims are based only on political interest and not on any natural law. Grotius does this in an inductive way by claiming that all human beings act altruistically in ways that benefit society, often at their own expense. This natural sociability is aided by the human faculty of judgment by which human beings determine what is harmful and what is beneficial to society. However, this empirical defense of the existence of natural law merely addresses the question of how a detached observer a lawyer, for example can determine whether human beings are governed by natural law. It does not address the question of how these individuals come to know the precepts of natural law. 12 On this more important epistemological question, Grotius s response was strikingly similar to that of the Scholastics. The Scholastics, following Aquinas, saw natural law as a set of self-evident first principles of practical reason. They could neither be proven nor disproven, and all human beings had access to them through basic reason. Aquinas compares these precepts to the laws of scientific reasoning through which one can draw conclusions about the natural world. For example, two things that are equivalent to the same 11 Hugo Grotius, Commentary of the Law of Prize and Booty, Gwladys L. Williams and Walter H. Zeydel, trans. (Indianapolis: Liberty Fund, 2006), Chapter 2, pp This distinction resembles H.L.A. Hart s distinction between the external and internal points of view of rules. The Concept of Law, 2 nd edition (Oxford University Press, 1997), 89. 6

7 thing are equivalent to each other. 13 Suárez simply states that the natural law is a set of rules describing actions that are in conformity with man s rational nature. He asserts that every human being possesses the power of judgment that allows him to discriminate between the rational and the irrational. This power is not unique to Christians or those who have received special revelation from God (e.g. the Jews). Like Aquinas, Suárez relies on St. Paul s argument from Romans 2:14-15 that the Gentiles, who do not have knowledge of divine law (i.e. Mosaic Law) nevertheless act according to natural law and are a law unto themselves. 14 Grotius likewise argues that the principles of natural law are self-evident, comparing them to empirical truths perceived by the senses. 15 Following the Thomist idea of innate knowledge, he states that God has implanted natural right in human beings and has granted us the faculty of judgment whereby we discern good from evil: Natural Right is the Rule and Dictate of Right Reason, shewing the Moral Deformity or Moral Necessity there is in any Act, according to its Suitableness or Unsuitableness to a reasonable Nature, and consequently, that such an Act is either forbid or commanded by GOD, the Author of Nature. 16 The faculty of moral judgment described by Grotius bears a strong resemblance to Aquinas s concept of practical reason as well as Suárez s notions of judgment and conscience. Thus, Grotius adopted the Scholastic notion of the innate power of judgment through which all rational beings can perceive the natural law. Moreover, while Grotius displays some sensitivity to critiques based on skepticism and cultural relativism, this does not set him apart from the Scholastics. Vitoria likewise sought to use empirical evidence to argue that certain practices were contrary to natural law. This is most 13 Thomas Aquinas, Summa Theologica, I-II, Question 94, Article 2 in On Law, Morality, and Politics, Richard J. Regan, trans., William P. Baumgarth and Richard J. Regan, ed., 2 nd edition (Indianapolis: Hackett, 2002), Francisco Suárez, A Treatise on Laws and God the Lawgiver, Book II, Chapter 5 in Selections from Three Works of Francisco Suárez, S.J., volume 2, Gwladys L. Williams, Ammi Brown, and John Waldron, trans. (Oxford: Clarendon Press, 1944), Grotius, The Rights of War and Peace, volume 1, Jean Barbeyrac, trans., Richard Tuck, ed. (Indianapolis: Liberty Fund, 2005), Preliminary Discourse, XL. 16 Ibid, Preliminary Discourse, X.1 7

8 evident in Vitoria s treatment of the ius gentium. Although ius gentium was not itself a form of natural law, Vitoria followed Aquinas in believing that it had a closer relationship to natural law than other, more local, types of positive law. This is because the wide acceptance of a legal norm by different peoples seemed to be a good indicator of a natural law principle. For example, when considering the practice of cannibalism, Vitoria finds nothing in Scripture to indicate that it is contrary to natural law. However, Vitoria argues that the unnaturalness of the practice can be proved by logic because anthropophagy is held in abomination by all nations who have a civil and humane way of life; therefore it is unjust (emphasis in original). Vitoria cites numerous historical and anthropological accounts of cannibalism and notes that every author describes the practice as an unspeakable and inhuman act of tragedy. He concludes: a thing is said to be against natural law when it is universally held by all to be unnatural. Hence if all men have held this practice to be disgusting and base, it is base in natural law. 17 Thus, like Aquinas, the Scholastics believed that actual practice could serve as one important indicator of divine and natural law. Natural law was not a purely theological concept to be understood through Scripture and rational deduction; it was rather something that could be understood by looking at the actual practices and opinions of human societies. It bears repeating, however, that these empirical arguments are only relevant to the detached observer. Rational judgments are not arrived at through logical proofs or empirical demonstration but rather through innate reason. If Grotius closely follows the Scholastics on the question of knowledge, then perhaps Locke is the truly modern innovator in this area. Locke rejected the widely held notion of innate knowledge and argued that humans arrive at knowledge through a process of empirical 17 Vitoria, On Dietary Laws, 1.3 in Political Writings, Anthony Pagden and Jeremy Lawrance, eds. (Cambridge University Press, 1991), This does not imply, however, that widely accepted practices are in agreement with natural law. For example, Vitoria argues that human sacrifice has been widely practiced throughout history but is still forbidden by natural law. 8

9 induction. Although his Essay Concerning Human Understanding presents a significantly more complicated picture than this, he clearly applies this inductive method to natural law in his Essays on the Law of Nature. Like Grotius and Vitoria, Locke recognizes that there are a variety of religious and cultural traditions and that natural law must exist outside of these traditions. 18 Unlike his predecessors, however, Locke rejects the idea that the laws of nature are inscribed in the minds of men and attempts to demonstrate that humans attain knowledge of natural law through sense-perception filtered through the faculty of reason. 19 It is through this process of observation of the external world that human beings come to know that there is a God who ought to be worshipped. By observing their own natures and faculties, humans come to realize that God has created them to fulfill certain purposes, and these purposes are the content of the laws of nature. 20 Locke thus complicates the process by which human beings come to know the natural law. Natural law is no longer a first precept but rather a conclusion reached through reasoning. This gap between innate reason and natural law explains why, though the law of nature be plain and intelligible to all rational creatures, so many rational individuals remain ignorant of the law for want of study of it. 21 Locke s contribution, while certainly significant, does little to change the essential fact that natural law is universal, unchanging, and accessible to all reasonable people, regardless of religion, culture, or place of origin. In its epistemic dimension, the idea of natural law remains remarkably consistent in the writings of Vitoria, Suárez, Grotius, and Locke. All these thinkers see natural law as an aspect of divine law and therefore universal and immutable. They all adhere to the Thomist proposition that the fundamental precepts of natural law are available to all rational creatures. Finally, they 18 Locke, Essays on the Law of Nature, W. von Leyden, ed. (Oxford: Clarendon Press, 1988), Ibid, Ibid, Locke, Second Treatise of Government, chapter 9. 9

10 are all acutely aware of a great variety of actual beliefs and practices, especially among non- Christian and non-european peoples, and they seek to reconcile the universality of natural law with cultural diversity. 2. The Foundation of Legal Obligation Closely related to the question of knowledge is the question of how natural law or any law obliges individuals to obey. Some authors have contended that modern natural law provides a distinctly secular basis of legal obligation. Aquinas and his voluntarist successors all argued that the command of God is what endows natural law with its legally and morally binding character. Haakonssen argues that Grotius broke with this tradition by arguing that interpersonal contractual relations could provide a basis of legal obligation wholly independent of God s will. 22 Although in some passages Grotius seems to depart significantly from Scholastic thinking on obligation, a close comparison of his work with the work of the Scholastics reveals that Grotius does not break the Thomist voluntarism. The debate over the role of God in natural law can be traced at least as far back as the fourteenth century when intellectualists and voluntarists put forth competing theories of natural law. The intellectualist position, attributed to Gregory of Rimini, states that natural law arises from the innate goodness or evil of things. Humans use their God-given faculty of judgment to discern what things are good or bad in themselves. The voluntarist position, attributed to William of Ockham, states that nothing is required or forbidden except by God s command. God does not command something because it is good; it is good because God commands it. 23 Vitoria and Suárez both defend the voluntarist position. For Vitoria, both natural 22 Haakonssen, Natural Law and Moral Philosophy, Ibid,

11 law and civil law are obligatory because they are derived from God s commands and prohibitions. 24 Suárez treats this controversy at great length and argues that all law is a function of the will and not of the intellect. The intellect, says Suárez, can only direct and inform our actions; only the will of a superior can compel us to act or to refrain from acting. 25 Grotius s famous statement in the Preliminary Discourse of DJBP is often seen as a break from Scholastic voluntarism and a rejection of the necessity of God s will in creating legal obligations. Grotius states: And indeed, all we have now said would take place, though we should even grant, what without the greatest Wickedness cannot be granted, that there is no God, or that he takes no Care of human Affairs. Grotius goes on to state that God s will, as revealed both through natural law and Scripture helps to clarify the precepts of natural right but that these precepts would remain true without God. 26 In the following chapter, Grotius compares the laws of nature to self-evident truths that are beyond the reach of even the omnipotent God: For Instance then, as God himself cannot effect, that twice two should not be four; so neither can he, that what is intrinsically Evil should not be Evil. 27 However, in these passages, Grotius says nothing to contradict the Scholastic voluntarist position. In the first and most famous passage, Grotius asserts that humans naturally desire society and act in ways that benefit society, even if they are not directed to do so by God. Here Grotius is describing the propensities of human nature sociability and rational judgment. He is not describing anything resembling law or obligation. In the second passage on intrinsic good and evil, Grotius argues that the truth of natural law does not depend on God s command; this is distinct from the question of whether the obligation imposed by natural law relies on God s command. The Scholastics also accepted the 24 Vitoria, On Civil Power, Question 1.3, 10, Question 3, Suárez, On Laws, Book I, Chapter 5, Grotius, DJBP, Preliminary Discourse, XI-XII. 27 Ibid, I.I.X.5 11

12 fact that things are good and evil independent of God s command. 28 The truth of a precept, as Suárez argues, informs the person but does not bind him. Grotius and later natural law thinkers all adhered to the orthodox Scholastic position that natural law obliges by virtue of God s will or command. Grotius first makes this point in his earliest work on natural law, De Indis: the first of the nine rules laid out in his prolegomena is that What God has shown to be His Will, that is law [ius]. He thus follows the Scholastic position that law is the product of a superior will. He then argues that the concept of ius is closely linked etymologically to the concept of things commanded (iussa). This act of commanding, he says, is a function of power, and primary power over all things pertains to God, in the sense that power over his own handiwork pertains to the artificer and power over inferiors, to their superiors. He then concurs with the statement of Anaxarchus that a given thing is just because God wills it, rather than that God wills the thing because it is just. 29 Grotius s etymological argument linking ius to the Latin verb iubere to command is identical to the argument Suárez makes some years later in De legibus. 30 Subsequent natural law thinkers also adhered to this voluntarist view of legal obligation. In Leviathan, Hobbes lists nineteen laws of nature, which are discovered by human reason. 31 Hobbes then clarifies that these laws of nature are more accurately described as dictates of Reason and not laws, wheras Law, properly is the word of him, that by right hath command over others. But yet if we consider the same Theoremes, as delivered in the word of God, that by right commandeth all things; then are they properly called Lawes. 32 Although Hobbes 28 Suárez, On Laws, Book II, Chapter 5, Grotius, De Indis, Chapter 2, Suárez, On Law, I.2.6, Thomas Hobbes, Leviathan, Richard Flatham and David Johnston, eds. (New York: W. W. Norton, 1997), Chapter XIV, p Leviathan, Chapter XV, p

13 frequently ignores this definition of obligation, he nevertheless felt the need to acknowledge that legal obligation does not flow from reason alone but rather from the command of a superior to an inferior. Locke makes the same distinction between the dictates of reason and the laws of nature in the first of his Essays on the Laws of Nature. Echoing Suárez, Locke argues that reason is capable only of discovering the laws of nature; it cannot give us laws because it is a part of us. Only a superior will, in this case, God, can give laws. 33 In his treatment of natural law, Locke separates the question of knowledge of natural law and the question of obligation, giving each its own essay. In the essay on the obligation imposed by natural law, Locke argues that no one can oblige or bind us to do anything, unless he has right and power over us. In the case of civil law, the superior will is that of the magistrate. In the case of natural law, God s will obliges us. 34 This idea of divine will and command is thus fundamental to natural law theory throughout the sixteenth and seventeenth centuries. 3. The Scope of Natural Law It is often argued in the literature that modern natural law thinkers sought to limit the scope of natural law to a few precepts based on the temporal needs of human beings: selfpreservation and the avoidance of conflict. 35 The most obvious contrast with this thin or minimalist conception of natural law is Suárez s conception. Thus, Schneewind contrasts the theories of Suárez and Grotius, emphasizing the soteriological nature of Suárez s version of natural law and the temporal nature of Grotius s version. Suárez includes within the scope of the natural law things that are necessary for spiritual salvation inner obedience to God s commands 33 Locke, Essays on the Laws of Nature, Ibid, Haakonssen, The Moral Conservatism of Natural Rights, in Ian Hunter and David Saunders, eds., Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought (Basingstoke and New York, 2002), 29. Tuck, Philosophy and Government, 172-3; Tuck, Rights of War and Peace,

14 and knowledge of divine punishment and reward. Schneewind emphasizes the fact that Grotius omits even basic tenets of Christianity sin, salvation, and the trinity from his conception of natural law. Schneewind argues that natural sociability is the fundamental principle behind Grotius s minimalist version of natural law: Grotius limits the precepts of natural law to those that can be deduced from the basic human need to maintain order within societies. Schneewind concludes that this secular basis of natural law is what sets Grotius and his successors apart as a distinctively modern school of natural law. 36 However, this minimalist reading of Grotius cannot be understood apart from the distinction between two categories of natural law: lex naturalis and ius naturale. Once we examine this distinction, the boundary between Grotian and Scholastic natural law is much less clear. The scope of Scholastic natural law straddles the temporal and spiritual realms and includes precepts that cannot be defended on purely secular grounds. Aquinas describes natural law as containing precepts of practical reason by which humans pursue what is good and shun what is evil. The basic goods for which Thomist natural law aims include basic physical needs such as self-preservation and sexual union (though these also have higher, spiritual value than mere physical pleasure). It also includes moral and spiritual goods that Aquinas attributes to man s higher, rational nature: to live in society with other human beings and to know God. 37 Vitoria closely follows Aquinas in positing dual aims of natural law: physical preservation and the perfection of the soul. 38 While these ends may not be strictly secular, Vitoria still maintains that these ends are natural and therefore distinct from the supernatural ends (e.g. eternal life) that are the province of divine law and canon law. Spiritual redemption and eternal life cannot be 36 Schneewind, The Invention of Autonomy, Aquinas, ST I-II, Question 94, Article 2, Vitoria, On Civil Power, 1.2 in Political Writings,

15 attained outside of the Church and its sacraments. 39 Vitoria does not say whether obedience to natural law is necessary for salvation, but Suárez clearly argues that it is. 40 It appears, then, that Grotius breaks away from this tradition when he posits in De Indis that the goods with which natural law is concerned are limited to bodily pleasure, health, riches, and honor. 41 However, although commonly translated into English as natural law, the term used by Grotius throughout this text is ius naturale more precisely translated as natural right. The significance of the distinction between law and right becomes clear only in Grotius s later and much more thorough treatment of ius naturale in DJBP. In Chapter One, Grotius presents three possible definitions of ius, the third of which is the same thing as lex: There is also a third Sense of the Word Right [ius], according to which it signifies the same Thing as Law [lex], when taken in its largest Extent, as being a Rule of Moral Actions, obliging us to that which is good and commendable I add moreover, that the Law obliges us to that which is good and commendable, not barely to that which is just: Because Right in this Sense does not belong to the Matter of Justice alone (such as I have before explained it) but also to that of other Virtues; tho otherwise, whatever is conformable to this Right, may also, in a larger Acceptation, be termed Just. 42 Grotius rejects this conflation of right and law and argues that natural right is a narrower concept within the law of nature. In both De Indis and DJBP, Grotius draws a close link between justice (iustitia) and right (ius). For example, in his discussion of right as a moral faculty of persons, he defines justice as the respect of these rights and injustice (iniuria) as violation of right. 43 Therefore, the goods enumerated in De Indis bodily safety, riches, honor, etc. are the goods with which justice is concerned, i.e. goods that can be objects of rights. Thus, Grotius does not 39 Vitoria, On the Power of the Church (I), Question 1, in Political Writings, Schneewind, Grotius, De Indis, pp Grotius, DJBP, I.I.IX 43 Ibid, I.I.VIII. 15

16 secularize the natural law doctrine of the Scholastics but rather carves out a space within natural law for temporal justice. One key difference that sets natural right apart from the rest of natural law is that violations of natural right constitute injuries (iniuriae) and thus give rise to the right of punishment. Here Grotius roughly follows Aristotle s division of justice into attributive (distributive) justice and expletive (commutative) justice. Only violations of the latter are punishable by human law. 44 In De Indis, Grotius describes this latter idea as compensatory justice and includes within it both reward for good deeds and punishment for harms. Here, Grotius cites Aristotle s principle of reciprocity in commutative justice. An injustice is any transaction that results in inequality between parties: for example, theft is a transaction by which one party takes more than he deserves. This transaction must be corrected by returning the property until both parties are again equal. 45 Such a conception of right and justice only pertains to relations among individuals regarding their bodies and property. Thus, as Grotius argues in Book II of DJBP, punishments must only be given for interpersonal harms: Thirdly, those Sins are not to be punished, which neither directly nor indirectly concern human Society, nor any Body else. Because no Reason can be assigned, why the Punishment of such Sins should not be left to GOD, who is most wise to understand, most righteous to weigh, and most mighty to revenge them Nor are Actions to be punished, that are done in Opposition to Virtues, which by their very Nature are averse from all Compulsion, such as Mercy, Liberality and Gratitude. 46 In a similar vein, Locke draws a distinction between sins and violations of rights in the Letter Concerning Toleration. Locke argues that not every sinful act ought to be a matter of civil law; only those acts that are prejudicial to other men s rights or break the public peace of 44 Ibid, II.XX.ii 45 Grotius, De Indis, Aristotle, Nicomachean Ethics, 1131a. 46 Grotius, DJBP, II.XX.xx.1 16

17 societies ought to be punished by the magistrate. 47 This is because the purpose of civil authority is to secure those objects necessary for man s temporal happiness, leaving in the meanwhile to every man the care of his own eternal happiness. 48 However, like Scholastic natural law, Lockean natural law straddles the temporal and the eternal. In the fourth essay on the law of nature, Locke explains that sense-experience and the use of reason lead us to contemplate God s works and to assign and render praise, honour, and glory most worthy of so great and so beneficent a creator. 49 We are also led by this same light of nature to seek our own preservation and the preservation of society. These three precepts of Locke s natural law worship of God, self-preservation, and preservation of society closely resemble Aquinas s basic precepts of natural law. Thus, for both Grotius and Locke, natural rights are a narrower sub-category of the law of nature. These arguments for secular natural right, however, do not make Grotius and Locke any more modern than the Scholastics. More than a century before Grotius s DJBP, Vitoria drew a similar distinction between violations of natural law and injustices (iniuriae). In his discussion of Spanish relations with the American Indians, Vitoria describes these two types of crimes. Violations of natural law include immoral practices, such as sodomy and cannibalism, and offenses to God, such as idolatry, but these violations do not give the Spanish a right to punish the Indians. Only iniuriae, which are limited to physical harms committed against innocents, give cause for punishment. Therefore, a people that practices human sacrifice may be punished, but a people that condones sexual immorality may not. 50 Thus, both Scholastics and moderns distinguish between natural law, which includes all good and commendable things commanded 47 Locke, Letter Concerning Toleration in Political Writings, David Wootton, ed. (Indianapolis: Hackett), Ibid, Locke, Essays on the Law of Nature, Vitoria, On Dietary Laws, ; On the American Indians, Question 3,

18 by God, and the rules of justice, which are limited to interpersonal harms. Part Two: The Case for Secular Government Although the idea of natural law that persisted throughout the sixteenth and seventeenth centuries cannot be called a purely secular idea, it played an important role in arguments for secular government in the early modern period. Perhaps the most significant natural law argument for secular government was made by Locke in a series of writings spanning the Restoration of 1660 and the Revolution Settlement of Because of its theoretical sophistication and usage of the ideas sketched above, I reconstruct Locke s argument in some detail. It should become clear that the three central tenets of early modern natural law outlined above all factor significantly into Locke s argument. The two pillars of secularism that I described in the beginning of the paper correspond to the two central religious-political conflicts in Locke s writings: the autonomy of state sovereignty and limits on sovereign power over religion. After outlining Locke s argument, I turn back to the Scholastic arguments for political secularism, focusing again on Vitoria and Suárez. Noticeably absent from this portion of the paper are Grotius s important writings on the social contract and religious toleration. Because of his complicated and shifting theological views, I leave Grotius out of this conversation and focus on the similarities between Locke and the Scholastics. 1. Locke s Argument for Secular Government Locke s defense of fully secular government is an attempt to identify the extent of the power of the state in relation to religious organizations. His theory rests on the notion of civil 18

19 interests, which plays a role in all of his writings but is most clearly defined at the beginning of his Letter Concerning Toleration: The commonwealth seems to me to be a society of men constituted only for the procuring, preserving, and advancing of their own civil interests. Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like. 51 He uses this idea to resolve two types of religious-political conflict that arise between the state and its citizens. The first type of conflict arises when religious individuals engage in civil violence and resistance to the sovereign in the name of freedom of conscience. Locke sees such individuals as placing their own religious purposes above the secular purposes of the state and challenging the state s authority on the grounds that its leaders are acting contrary to God s will. In such conflicts, Locke sides with the state, arguing that the magistrate has the right to override religious freedom for the sake of protecting the civil interests of the people. 52 The second type of conflict involves a magistrate who attempts to impose a particular religion on the citizens for the sake of their salvation. In this case, Locke sides with the citizens, arguing that the state is only charged with advancing citizens civil interests and not their spiritual interests. 53 In both cases, Locke uses the concept of civil interests to limit the state s power to the temporal realm and prevent religious individuals officials or citizens from infringing on the secular rights of other individuals. Locke derives the concept of civil interests from the fundamental precepts of the law of nature. As he states in the Letter Concerning Toleration, there are fundamental civil interests for the protection of which the civil state is created. The civil interests listed here life, liberty, and 51 Letter Concerning Toleration, The clearest statements of this position are found in the Preface to the Reader for First Tract of Government in Political Writings, 151 and the Second Tract of Government, 152-3, 164. Also, in the Essay Concerning Toleration, Locke argues that opinions can only be tolerated as long as they do not cause disturbance to the state, Essay Concerning Toleration in Political Writings, Letter Concerning Toleration,

20 property correspond exactly to the rights and privileges of the law of nature described in the Second Treatise. 54 Throughout the Second Treatise, Locke describes the fundamental law of nature as the preservation of mankind, to which he adds that, when all cannot be preserved, the preservation of the innocent is to be preferred. 55 From this fundamental right of selfpreservation, two other rights are derived: the right to property and the right to liberty. The right of property arises because humans need to have exclusive right over animals, plants, and land in order to use them for sustenance. 56 The right of liberty is the right to not be arbitrarily dominated by another human being. In the state of nature, it is to be under no authority but the law of nature; in civil society, it is to be under the rule of law. Locke derives this right to liberty from the right to self-preservation because arbitrary domination, as in a state of slavery, is to have the power of life and death over someone. 57 It is important to note that throughout his discussion of the law of nature in the Second Treatise, Locke excludes the obligation to know and worship God, which is central in the Essays on the Law of Nature. Because he focuses on the law of nature as it pertains to physical preservation and property, Locke s focus is on the narrower category of natural rights rather than all of natural law. These three rights and privileges of the law of nature life, liberty, and property serve as the basis for Locke s vision of secular government. In the absence of civil government, the law of nature imposes on individuals the obligation to respect the lives, liberties, and estates of other individuals. Because these rights are not adequately protected in the state of nature, individuals create civil governments with standing laws and judges to settle disputes and punish violations. In Chapter 9 of the Second Treatise, Locke makes it clear that the purpose of civil 54 Second Treatise of Government, Chapter 7, section 87; Letter Concerning Toleration, 393. See also Essay Concerning Toleration, Second Treatise, Chapter 3, section 16; Chapter 11, section 135; Chapter 14, section 159; Chapter 16, section Ibid, Chapter 5, section Ibid, Chapter 4, section

21 government is to clarify, apply, and enforce these natural rights. The state is thus empowered by divinely sanctioned natural law to command, judge, and punish its citizens. Because the state has such a lofty mandate, Locke sees nothing un-christian about granting the state power to override religious freedom in the name of civil interests. Locke s natural law theory thus serves to secularize government in two ways. First, it serves to elevate the status of these civil interests so that they override religious differences. Second, it serves to limit the authority of the state to earthly matters. The role of natural law in achieving these two purposes can be understood with reference to the three issues raised in Part One: knowledge of natural law, the scope of natural law, and the basis of obligation. First, Locke must explain how a law of nature that originates in God s command is nevertheless accessible to all reasonable people regardless of their particular religious convictions. For Locke, such an account of natural law cannot be completely secular because it would lose its power to override the religious concerns of the zealots whom he sought to discredit. It would be far easier to explain the universal accessibility of natural law if it was derived from human instinct or pure self-interest, but this would not serve Locke s purposes. In the Essays on the Law of Nature, Locke explains how the law of nature, which can only come from God s command, can be understood by all. In describing how people come to know natural law, Locke rejects two possibilities: inherited traditions and innate knowledge. 58 Locke instead endorses an empirical perspective: we come to understand natural law through experience filtered through reason. For Locke, knowledge of natural law is impossible without knowledge of God, so he must explain how experience and reason can lead all individuals to know God s existence and will. This realization can be reached through observation of the natural world. When humans observe the orderliness and regularity of the natural world and use the faculty of 58 Locke, Essays on the Law of Nature, Essay II, pp

22 reason, they come to the conclusion that there must be a god who created all things, including humans, for a particular purpose. It also leads them to realize that they are completely dependent for their existence and purpose on the will of this creator. Humans observation and experience of their own capabilities leads them to understand that God created them for particular purposes to worship God, to preserve themselves and others, and to live together in societies. Because of their awareness of God s will, they know that these purposes are not mere human drives but divine mandates. 59 Because of the universal accessibility of natural law, a commonwealth could be formed and maintained among people of all religions. Christians can even enter into political society with the pagans of America as long as these pagans are strict observers of the rules of equity and of the law of nature, and no ways offending against the laws of the society. 60 Second, Locke s defense of secularism requires that the precepts of natural law enforced by the state are limited to temporal matters. The epistemological difference between natural law and religion explains why only civil interests, not religious interests, are the appropriate objects of public law. Although Locke s account of natural law in the Essays is premised on the existence of God and the duty to worship and obey God, Locke viewed this as merely the foundation of moral reasoning, not as a controversial religious position. The religious controversies and disagreements with which Locke grappled in the Tracts on Government and his works on toleration dealt with the proper worship of God and the means to achieve salvation. For Locke, the question of salvation was one of faith, not reason. Through reason, all individuals can arrive at the law of nature promulgated by God to all mankind. Locke identifies this law of nature as the law of works described by St. Paul (Romans 3:27). Because obedience to the law 59 Ibid, Essay IV, Letter Concerning Toleration,

23 of works is made impossible by man s inherent sinfulness, God has granted mankind a special dispensation by which they can attain salvation through faith in Christ. Unlike the law of works, this special dispensation is not available to everyone through reason; it is only given to those who have received the Gospel. 61 Locke argues that reason and faith, though they may arrive at the same conclusions, are distinct epistemological processes that ought not to be confused. Faith is the assent to any proposition upon the credit of the proposer, as coming from God, in some extraordinary way of communication, while reason depends on the experiences and reflection of each individual. 62 Thus, only natural law precepts, which can be accessed by all through the light of reason, can be the subject of public law. Although all reasonable people can agree about these precepts, they are not likely to apply them rigorously to themselves. As Locke puts it in Chapter Nine of the Second Treatise, though the law of nature be plain and intelligible to all rational creatures; yet men being biased by their interest, as well as ignorant for want of study of it, are not apt to follow of it as a law binding to them in the application of it to their particular cases. 63 When one is the victim, one is likely to be overly harsh to the perpetrator; when one is the perpetrator, one is likely to be overly lenient to oneself. Locke posits that this settled law is allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them. 64 The function of the magistrate is, therefore, not to make judgments of truth or value but rather to dispassionately apply the laws of nature to which all people consent. 61 John Locke, The Reasonableness of Christianity I. T. Ramsey, ed. (Stanford, CA: Stanford University Press, 1958), 29-33; Essays on the Law of Nature, Essay I, John Locke, An Essay Concerning Human Understanding (London: Dent, 1947), Book IV, Chapter 18, Second Treatise, Chapter 9, paragraph 124, p Ibid. 23

24 This problem of partiality helps explain an important difference between the law of nature as explained in the Essays on the Law of Nature and the law of nature described in the Second Treatise. In the Essays, the basic precepts of the law of nature include reverence for God, preservation of life, and the preservation of society. In the Second Treatise, Locke claims that the fundamental law of nature is the preservation of mankind and derives from this the rights of life, liberty and property. The obligation to worship God drops out of this later account because Locke does not deem it relevant to the establishment of political society. If the reason for establishing government is the need for an impartial judge, the only relevant natural law principles are interpersonal ones. The duty to know and worship God, while evident to everyone, is not impeded by partiality. This also serves as a further argument for the exclusion of religious matters from civil law. In the case of religious interest, it is the individual himself who is the best judge of his own religious needs. The magistrate has no special claim to religious knowledge; both he and his subjects are equally fallible in religious matters. 65 The magistrate s only claim to authority his impartiality proves no benefit in religious matters. On questions of salvation, love of self motivates the individual to reach the correct conclusion. Finally, Locke s theory of the secular state requires a source of obligation outside of the state. One of the main problems faced by the secular state is the idea that individuals ought to follow their own consciences when they are in conflict with civil law. Locke sought to defend the right of the magistrate to override individual conscience, and natural law provided the higher basis of this duty of civil obedience. Locke argues that all obligation binds conscience and lays a bond on the mind itself, so that not fear of punishment, but a rational apprehension of what is right, puts us under an obligation, and conscience passes judgement on morals, and, if we are 65 Essay Concerning Toleration,