Nature and the Limits of the City in Early Modern Natural Law
By Annabel S. Brett, including early-modern definitions of 'society'
Annabel S. Brett wrote:
INTRODUCTION [extracts]
ON THE THRESHOLD OF THE STATE
This is a book about what the sixteenth-century philosopher John Case called “the sphere of the city.” By it he meant, and I mean, the political space that human beings have constructed as a space in which to live a distinctively human life. “City” here is not “city” in the sense of an urban environment, urbs in the Latin. “City” is instead the Latin civitas, a civic not a stone structure. Again, this is not, at least in the first instance, civitas in its sense as a city like London, but in its sense as synonymous with the respublica, the commonwealth. It is what, at the end of our period, Thomas Hobbes would define as … the state … : “that great Leviathan…” .. It is central to this idea of the city that it is not something immediately given in nature but something that has to be built out of it, just as the walls of the urbs have to be built on a patch of ground … by … human agency … distinguished from or discontinuous with all other kinds of natural agency. It is here that the focus of this study lies: not on “the sphere of the city” in itself, but in its aspect as something that is brought into being through processes of differentiation and exclusion on multiple levels.
In this sense, the central theme of this book is … the fraught intersection of the political and the natural world—in the natural law discourse of the later sixteenth and early seventeenth centuries, roughly the one hundred years between Francisco de Vitoria and Thomas Hobbes. In the course of this century, marked by the outward expansion of European states across the globe and simultaneously by their internal implosion into civil war, the boundaries of political space were fundamentally contested not only at a practical but at a theoretical level, and the dominant (though by no means exclusive) idiom of that contestation was the universalising juridical language of natural law. What was forged in the process, culminating iconically in the Peace of Westphalia of 1648 and Hobbes’s masterpiece Leviathan of 1651, is commonly taken to have been … the modern, territorial nation-state. Here we have, at least in theory, the sovereign state, clearly demarcated as a juridical entity both against other sovereign states and against other kinds of human association; and a fortiori against the world of non-human nature, dominion over which it protects, facilitates, and … claims for itself … that sharp break, that line of demarcation …
… I take as the central problem with which natural law discourse in this period wrestles that the city or state must pull away from nature to form itself at the same time as being grounded in nature to motivate and to legitimate it …
… [There] is a whole sphere of interhuman relationships outside the sphere of the city, governed by a common human nature and a common human justice that is more than simply where the sovereign’s sword falls. Passage between cities is not the same as passage between the city and nature: it is illegitimate, and dangerous, to run the two together. By all means talk about the boundaries of the state, but recognise that the boundary between the sovereign state and the broader human community is not the same as the boundary between the state and nature.
… [To] insist on the distinctiveness of human nature does not take away the problem of the interface between the city and nature—the political and the natural—but pushes it one level lower, from the city limit to the limit of the universal human community. That limit is equally constructed and equally contested … The distinction between human nature and “nature nature” is not always so clear-cut. And the boundary of the human in any case implicates the city, for part of what is seen to be distinctively human is the motivation and the capacity to form into political commonwealths. For most of our non-Hobbesian-minded authors, human beings are not only naturally capable of, but naturally desirous of forming into such communities; those who are not are not only on the margins of the state but on the margins of humanity …
… [This] book examines the pressures on the relationship between nature and the city, between “inside” and “outside,” from two angles. [First] it traces the genesis of the “sphere of the city” as a distinctive sphere of being contradistinguished against natural being, starting with human nature itself and moving from there to trace the complex juridical universe in which humans alone act and in which they build the political spaces that are commonwealths or states …
…. But the book goes on from there to explore “inside” and “outside” in another sense, the sense in which a traveller goes “out” of one city and “into” another. Local motion or locomotion of this kind, metaphysically underprivileged in almost all of our authors because it is not an exclusively human phenomenon, is nevertheless an essential component of political or civilised life as they envisage it … Civitas as commonwealth is unthinkable without … cities, places in which people live a civilised life and spill over from the walls to civilise their environs … In Carl Schmitt’s terminology … Ordnung and Ortung do not fall easily together in this period; the wall is both representative and insignificant, the commonwealth both placed and placeless. …
… [Our] authors distinctively insist on the commonwealth as a shared juridical space that transcends the natural being of its subjects, “natural” here meaning the physical, the necessitated, what is shared with the animal that is the figure of the anti-political. What I hope to show is the ways in which nature in this sense is involved in political space even while it is on one level excluded. It is this negotiation over the boundary between the two, rather than its disappearance into the population at large, that makes the natural law discourse of the late sixteenth and early seventeenth centuries a resource and a critical tool today. …
CHAPTER FIVE [extract]:
KINGDOMS FOUNDED
One of the key markers of the early modern natural law tradition is the pervasive understanding of the unsustainability of a condition of equal natural liberty governed only by natural law. The writers with whom we are concerned use various words to indicate the pressure on that pristine juridical situation: “convenience,” “commodity,” “necessity,” and—perhaps most prominently of all “utility.” Of themselves, these words are not part of a juridical vocabulary: they refer to the concrete goods of life. As such, they draw in considerations not of rights but of psychological attitudes, which all our authors explore to a greater or lesser extent. But since those concrete goods are part of a life that must be lived alongside other people, they have to be put in relation to the legal framework that governs interpersonal relations; and the key insight of this tradition is that they force changes in that framework, the critical change being the establishment of the commonwealth or state. The story of that genesis is accordingly a mix of juridical possibility and what I am tempted to call the pathology of the ius gentium, be that understood purely as natural law or as a kind of second stage of juridical organisation. Ex hoc iure gentium, “of this law of nations,” Hermogenianus said, “wars were brought in, peoples separated, kingdoms founded, properties distinguished, boundaries put on fields, buildings set in place, trade, buyings and sellings, lettings and hirings, and obligations instituted: except for some that were brought in by civil law.” The drive of early-modern natural law is to pick out and to privilege “kingdoms founded,” no longer one among many institutions of the ius gentium but the one that critically alters juridical relations both inside and outside the state.
CHAPTER SEVEN [extract]
LOCALITY
In the last chapter we examined the nature of the state’s command over its subjects as physically embodied beings, and the limits of the obligation of its law in that context. In this chapter, I want to consider the limits of obligation in another context, that of subjects travelling from one commonwealth to another. One might think that this is to consider the question of “inside” and “outside” in a completely different, and nonmetaphorical, sense. But I hope to show that the essential problematic is the same. Like the body of the subject, the physical movement of the traveller implicates another interface between the civic and the natural, this time the relationship between political space and the space of local motion, the space in which all physical beings, not just humans, move. Thus it raises, in a different context, the same issue of the relationship of the city to the natural lives of its subjects, lives that are irreducibly physical and lived in a physical dimension. Implicitly it also poses a fundamental political question about the city as a juridical entity: whether such a body is spatially limited, and, if so, how it can be that a non-physical body has a spatial location. In this sense, the border between the political and the natural and the border of the commonwealth are mutually under construction.
This fundamental political question had no easy answer in a mediating notion of “territory” that was neither natural place nor civil union but juridical space, the space of jurisdiction. Although our authors certainly possessed, and intermittently deployed, such a concept,1 [footnote BELOW] they could not use it adequately to solve questions of the obligation of subjects to their sovereign. The new understanding of sovereignty—the metaphysics of the state as the bearer of sovereign, legislative power over subjects— precisely displaced the old medieval concept of jurisdiction and with it the stability of the inherited notion of territory, to which jurisdiction, on the medieval understanding, coheres. The new space of the political did not coincide with the old space of jurisdiction; territory had to be re-conceptualised in relation to sovereignty. Early-modern lawyers, especially in Germany, were increasingly concerned with the nature of boundaries and territoriality more generally. But … most of the authors with whom we are concerned in this study showed very little interest either in the concept of territory, or in place more generally. Situation or locality remained on the fringes of their conception of the state; under precisely what aspect place becomes territory is not clear, and neither do they offer a clear central account of territorial sovereignty. Nevertheless, the world that their treatises addressed and sought to conceptualise contained a profusion of human beings moving outside the borders of the commonwealth: merchants, ambassadors, simple visitors, soldiers, fugitives, migrants and … religious exiles driven from their homes by confessional divisions.
[Footnote 1 ABOVE — Insofar as our authors offer a definition of territory at all (and most of them do not), they follow the Roman law definition given in the Digest title De verborum significatione (D.50.16.239.8): “‘Territory’ is the universal body of fields within the boundaries of any city.” Territory as the space of jurisdiction was underlined by the etymology, often repeated in the early-modern period, from terrere, to terrify: “which [i.e., the word territorium] some say is derived from this, that the magistrates of that place have the right, within those boundaries, of terrifying, that is, of driving off ” (ibid.).]
John Case, Sphaera civitatis (Oxford 1588) © The British Library
CHAPTER EIGHT [extract]
RE-PLACING THE STATE
We have seen … how the natural law state is parasitic upon conceptions of spatial relations or situation both in its practices and even in its founding narrative, while abstracting from them in its essence. This is a critical dimension of the uneasy frontier between nature and the city that I posed in the Introduction [SEE ABOVE] as the central problematic of this way of thinking. But in this final section I want to investigate two alternative contemporary understandings of how political space is constructed, both of which share the idea that the primary subject of politics is people who live or have their homes together. [Earlier] we explored the attractive and complex sense of human life that governs the casuistry of the obligation of the law in some of our authors, a life that cannot be either purely naturalised or purely assimilated to the city; but the context is fundamentally individualistic, that is, when it is that one human being ceases to be obliged by the civil law. [Earlier] we saw how the fact that human beings live in a certain place turns out to be implicit in the political theory of many of them.
By contrast, Johannes Althusius and Juan de Salas, in their different ways, explicitly construct the state around human lives that are shared or juxtaposed with one another, and for this reason they build the place of those lives into the very heart of their political theories in a way that the others do not. Althusius developed this account through a successive refinement of the distinction between “simple” and “mixed” forms of association. In his hands, this became a relationship between natural and voluntary forms. Juan de Salas did not appeal to these categories; rather, he offered his account as a critique of Suárez’s idea of moral union, created through an act of will. By refusing to accept that political union is voluntary in that sense, Salas equally challenged the essence of the natural law construction of the state.
As we saw [earlier], Althusius’s key political category was the “consociation.” A consociation is that whereby those individuals—or those groups—who must live together for the sake of their needs oblige themselves by implicit or explicit pact to offer each other the mutual services necessary for a social life together. The different types of consociation that are the object of political science are analysed according to a series of Ramist dichotomies, which change interestingly between the first edition of the Politica of 1603 and the third (the last that Althusius himself saw through the press) of 1614. The differentiae that he posited are not entirely original to him. The distinction between “simple” and “mixed” forms of human association can be found in John Case’s 1588 Sphaera civitatis, in which Case, in a Ramist table, divided “every society” into “simple” and “mixed” as the primary differentiae. A “simple” society is one that is “instituted” by nature, and this includes only the natural conjunctions that Aristotle had described as necessary for the basic operation of staying alive: man and woman, parent and child, master and slave. All other societies are “mixed,” apparently in the sense of “composite,” and these divide into “private and everyday” (the household) and “common,” which further subdivide into blood communities (colonies, the village) and communities of dignity (“whence the city”).
Case did not give any source for the distinction between simple and mixed, but his division of societies follows from and explicitly presupposes a discussion of the distinction in office (officium) between master, household manager, statesman (politicus), and king, which are the names of respective relationships. These terms suggest a possible source in Simplicius’s commentary on the Enchiridion of Epictetus, in which different offices are derived from different relationships (scheseis), some of which are natural and indissoluble, some voluntary and soluble. This source is explicit in Arnisaeus’s justification of the naturalness of the master-slave relationship in his De republica of 1615. Here he quoted Simplicius’s division of imperia into “natural,” in which the naturally superior rules the inferior; “voluntary,” in which the rich rule and the poor obey “by a certain compact” ( pactione quadam); and “mixed,” “when it has been publicly decreed that the more prudent shall rule.” Natural slavery belongs in the first kind, consistent with Arnisaeus’s thorough-going defence of it against the lawyers.
In the successive editions of the Politica, Althusius worked within these categories to try to stabilise his own specific differentia of the “universal consociation,” the regnum or respublica. In the table to the 1603 edition, consociations are divided into “simple particular” and “universal.” “Simple particular” consociations are subdivided into “natural necessary,” which further subdivide into those of spouses and those of kinsfolk (no mention of master and slave here), and “civil spontaneous,” which further subdivide into “private, in a college” and “public, in a universal body [universitas].” “Simple,” then, means either natural and necessary or voluntary and free. A universitas is defined as “the collection into one body of several spouses, families and colleges that live in the same place.” Situatedness, then, distinguishes a public from a private consociation like a college or guild, and also from a natural consociation, none of the definitions of which refer to place. Althusius named as public consociations of this kind (which are, it should be remembered, still “simple particular,” and not natural but voluntary) a neighbourhood, a village, a town, and a walled city (urbs). A civitas is a universal body of citizens, a civium unitas, living in an urbs.
Also included in this category of particular public consociations are a metropolis—a city in a dominant relation to other cities—and a province, which contains many cities, towns, and villages. By contrast, the universal consociation, the realm or commonwealth, is “that by which families, colleges, villages, towns, cities and provinces oblige themselves, as members of one political body, to have, constitute, exercise and defend the rights of the realm by their mutual forces and expense within a certain territory.”
By territory, Althusius specified that he meant “the universal body of fields situated within the boundaries of the covenanting members of commonwealth, in which the laws of the realm are exercised,” adapting the Roman legal definition, which refers to the civitas, to his own understanding of the respublica. Territory as the site of law, then, belongs to the commonwealth, while other public consociationes are simply in a certain place as a site of life. However, the difference that Althusius himself highlighted between the universal consociation, the commonwealth or regnum, and all other public consociations is that the commonwealth is a “society of life” that is “mixed”: “partly necessary, partly spontaneous and dissoluble by its nature, constituted from the species of special, simple and prior society.” The respublica, then, apparently mixes different species of simple consociation, both natural and voluntary, to create a kind of consociation that is different from all others, even other public consociations like the city. But it seems odd for Althusius to make this the specific differentia of the respublica when by his own definition any public consociation, any universitas, involves the natural and necessary consociation of the family as well as the voluntary and dissoluble consociations of colleges and guilds.
By the edition of 1614, Althusius had changed his mind. As is clear from the opening table, the distinction between “mixed” and “simple” is now elevated into the primary differentia of all consociations, as it was in Case; but unlike the latter, Althusius made this coincide with the distinction between public and private consociations. A private consociation is always “simple,” that is, either natural or voluntary. Apparently, then, any public consociation will be mixed, both natural and voluntary; but in fact, when Althusius turned from private to public consociations in chapter V, he made no explicit mention of this mixture at all. He simply said that they will be constituted out of various private consociations, and proceeded to divide them into two: particular and universal. “Particular, which is contained in certain delimited places, within which its rights are shared.” This contains largely the same list as the 1603 edition, going through various forms of essentially situated community, including the city and the province, with a wealth of detail as to their spatial organisation. By contrast, the definition of the universal consociation does not include any mention of place: “The universal, public and greater consociation is that, by which several cities and provinces oblige themselves to have, constitute, exercise and defend the right of the realm by their mutual sharing of goods, services, forces and expense.” Thus, the specific difference of the universal public consociation is that it is not local in the way that the particular public consociations are; it transcends particular situatedness in a trans-local mutuality. As in the 1603 edition, instead of place, the respublica or realm has a territory: the law of the realm is “that by which, for establishing the universal sufficiency of life and good order within the territory of the realm, the members of the realm are associated and bound between themselves as one people, into one body under one head.” And it is only this universal consociation that is, contrary to the opening table, specifically described as “mixed,” which now has a different sense as the mixture of the public and the private: “constituted partly from private, natural, necessary, spontaneous [society]; partly from public.”
It is not so clear, then, that Althusius moved from the isolation in 1603 of maiestas, the sovereign power that characterises the regnum or respublica alone, to a conception of symbiosis that embraces all forms of public or political consociation in 1614. We can legitimately, I think, infer that the particular public consociations of 1614 are “mixed” in the sense of the 1603 edition, that is, both natural and voluntary. However, this is not the same sense in which the respublica is mixed. The respublica does not (as the opening table suggests) become one among many political forms of association, but remains isolated in its own specific difference, wherein sovereignty and territoriality lie. However, what is interesting for our purposes is the role of place or locale that in both editions Althusius gave to the lesser forms of political association. These are “societies of life” that are essentially lived in a particular locality. The mixture of the voluntary and the natural or necessary dimensions of human “life together” (symbiosis) that they contain is a mixture that must take place in a certain location, which ties political to physical space. As they are the essential building blocks of the commonwealth, the universalising move of the latter, which also turns place into territory, cannot entirely abstract from the place of the former.
Let me now turn to Althusius’s almost exact contemporary, the Jesuit Juan de Salas, who offers us something of the same idea, although without any direct idea of “mixture,” in his question on the original location of civil legislative power. It is directed against [Francisco] Suárez’s account of moral union that we looked at [earlier]: political power originally exists in the body of men who have come together for one political end, that is, it exists as a function of their will, and it does not pre-exist the moral union that that will creates. [Juan de] Salas disagreed. “I say … that of the nature of the thing [ex natura rei], political power existed, and still now exists in the whole community of the human race. This is against certain more recent writers”—and there follows the key and as yet unpublished passage of Suárez quoted [earlier]. He began by asking why this power should not be in the human race. There seems no good reason why, from the beginning, all human beings should not have agreed on various laws that would bind all human beings. “And therefore no union is necessary prior to legislation other than the union of aggregation or congregation, not otherwise impeded.” Salas argued that if you deny this, you deny the existence of any positive laws of nations: because these are not simply things that the nations happen all to have agreed on by chance—in that case any nation could decide not to hold them as valid. As genuine laws binding on the whole human race, Salas says, they must originate from a legislative power that is in the whole human race ex natura rei. It follows, then, that the thesis that political power is dependent on human will is wrong: “for we have said that independently of human will it is in the whole human race . . . and the same is immediately in all human beings who have their domicile together, so that they can pass laws for themselves and for all those who succeed in their domicile, or are staying there for some other reason.”
Just as for the whole human race, then, there is no necessity of any kind of moral union formed by an act of human will. And it is this same simple cohabitation, and not any formation into one body, that generates the principle that the majority can pass laws that bind the whole. For those communities that are of people who live in the same place, and having their domicile together, can make laws by the major part, by which all are bound, who wish to stay there, which if any do not wish to keep, they can be expelled, or, if they stay there, punished … because nature demands that those who live together can be bound by laws pertaining to the common good of the place, and thus just as the unity of the human race is a sufficient foundation for legislative power in the human race: so too the conjunction of domiciles in a community of those who are [so] conjoined. This is not true for other, non-local—what Althusius would call “spontaneous”—communities, in which the majority principle has to be positively agreed on and does not follow ex natura rei.
Thus, differently from Suárez and from practically every other early modern natural law theorist, people do not need to form a moral “one,” a mystical body, before they can legislate; all they need is to be living together in the same place. What is interesting, however, is that Salas did not see this as a denial of any idea of unity or community. As we saw [earlier], he accepted the distinction between law and command based on the perpetuity of the commonwealth as opposed to individuals. Aggregation or congregation is not, therefore, a simple heap or juxtaposition of unconnected domiciles, but itself a kind of unity, a conjunction. Thus, unlike for Arriaga in his virtuoso demolition of Suárez’s reasoning concerning travellers, political subjection is not so purely a matter of place that if a person leaves that place, they simply cease to be subject at all. Rather, place and union are interwoven. It was on these grounds that Salas, while reluctantly accepting the communis opinio that a traveller leaving the city ceases to be obliged by its laws, nevertheless hedged this around with so many “limitations” that the contrary is effectively the case. It is domicile, not simple place, that is the key category, something that is at once a local situation and a moral bond. Salas finished his list of limitations by revisiting Bartolus’s analysis of legacies. As we saw, Sánchez and others had concentrated on his statement that things that just happen to be in an estate that has been left to someone are not judged to be legally part of that estate. Salas focused instead on the complementary point, that things that are usually in the estate but happen to be absent are part of the legacy. Therefore,
since all citizens as long as they do not change their domicile are judged not to be absent, even if they are away by chance, and are reckoned among the citizens and the inhabitants, they will be subject to the prince not just habitually, but actually . . . and although Sánchez … may respond that according to this law, a person who is absent by chance is judged to be present in matters favourable, but not in matters unfavourable, such as is being bound by the laws of his domicile; this does not assist his case, because being subject to the laws is ordained to the common good, and his own; and therefore it is not unfavourable but favourable.
These different ideas of political association offer an alternative conception of “the sphere of the city.” Both of them keep, in their different ways, an idea of a union that is both moral and juridical: Salas through his idea of “conjunction,” Althusius through keeping the juridical conception of a unity through pact. And yet by focusing their politics on a relation that is not purely juridical or moral, the relationship of living together or alongside, they imply a kind of porosity for the commonwealth that is different from the generous cosmopolitanism of [Domingo] Soto with which we began. Soto’s commonwealth was porous in respect of all subjects of rights, but it put up a firm wall against all kinds of natural or seminatural agents, the vagabonds and the roaming bands to which (and only to which) he was prepared to countenance the application of Aristotle’s unmodified conception of natural slavery. By contrast, Salas and Althusius allow the physical dimension of human life to penetrate the juridical structure of the commonwealth, and thereby suggest a way to open the gates of the city differently: not merely to the natural dimension of human being, but also, perhaps, to the other kinds of being alongside which human lives must always be lived. Evidently neither Althusius nor Salas had any such idea in mind.
The Source:
Annabel S. Brett, Changes of State: Nature and the Limits of the City in Early Modern Natural Law, Princeton 2011
[MGH: As usual, references have been omitted, and there is ‘bolding’ to highlight words or sentences that especially interest me.]
Evolutions of social order from the earliest humans to the present day and future machine age.