Ancien Régime, Absolutism and Natural Law
Part III
By Riccardo Piroddi
Abstract: Il pensiero giuridico tedesco tra XVII e XVIII secolo si sviluppa attraverso le opere di Samuel von Pufendorf, Christian Thomasius e Gottfried Wilhelm Leibniz, ognuno dei quali propone una distinta visione del diritto naturale e positivo. Pufendorf afferma che il diritto naturale, imposto da Dio e comprensibile tramite la ragione, costituisce la base a cui il diritto civile deve sempre conformarsi. La legge è vista come un comando di un superiore a un subordinato, e la distinzione tra legalità e moralità è centrale: lo Stato può imporre la legge, ma non la morale. Thomasius, invece, insiste sull’autonomia del diritto rispetto alla morale, distinguendo tra honestum (virtù), decorum (etichetta sociale) e iustum (giustizia), quest’ultimo essendo l’unico ambito coercibile e dunque propriamente giuridico. La sua visione sostiene uno Stato illuminato che limiti l’intervento nelle questioni morali e religiose. Leibniz propone una visione scientifica del diritto come strumento per realizzare giustizia e utilità. Distingue tra diritto di proprietà, diritto sociale e diritto interiore (carità), e sostiene che lo Stato debba favorire il bene comune senza soffocare l’iniziativa privata. Il suo ideale politico mira al perfezionamento sociale attraverso giustizia commutativa, distributiva e pietà. Questi autori pongono le basi per l’assolutismo illuminato e per una concezione razionale, laica e funzionale dello Stato e del diritto.
Samuel von Pufendorf
Samuel von Pufendorf (1632–1694), a prominent German jurist and historian, developed his own concept of international natural law in De iure naturae et gentium (On the Law of Nature and Nations, 1672). According to Pufendorf, natural law, which is imposed by God, emerges from a state of nature that is governed by a degree of rationality. Civil law, in contrast, is imposed by a sovereign and originates from human agreements or contracts. Importantly, Pufendorf argued that civil law can never contradict natural law, since civil law is essentially natural law enforced through the coercive power of the State.
For Pufendorf, law—whether natural or civil—functions as a mechanism through which a “superior” compels a “subordinate” to act in accordance with the superior’s precepts. Understanding the law, therefore, requires understanding its legislator. Human reason (recta ratio) is what reveals the legitimacy of natural law as a reflection of divine will and also demonstrates the rationality of civil laws, provided they align with natural law.
Pufendorf made a clear distinction between legality and morality. The legal sphere is governed by compulsory norms enforced by the State, while the moral sphere is guided only by an individual’s free conscience. However, even though positive law (civil law) is enforced by the State, it must not contradict the fundamental principles of natural law. The State is permitted to modify or temporarily suspend certain rules only in exceptional cases of security or survival, and even then, these actions must not undermine the essence of law or its foundational purpose.
Pufendorf’s theory contributed to the idea of an “enlightened absolutist” state, where the king, empowered by the social contract, is entrusted with protecting the natural rights of his subjects. This power is manifested through laws and decrees issued by the sovereign, which are justified as being aligned with the natural rights and reason of humanity. Thus, Pufendorf’s doctrine not only legitimized the authority of the ruler but also framed it as a rational and necessary force for the protection and maintenance of social order and natural justice.
Christian Thomasius
Christian Thomasius (1655–1728), a renowned German jurist, sought to establish the autonomy and distinct nature of law in comparison to moral imperatives. In his work Fundamenta iuris naturae et gentium (Foundations of the Law of Nature and Nations, 1706), he argued that humans must live honestly, decently, and justly, and identified three foundational principles of human nature: honestum, decorum, and iustum.
- Honestum refers to the rules of virtue and wisdom, which are purely moral and ensure inner peace for individuals.
- Decorum encompasses attitudes such as piety, charity, and altruism, fostering mutual sympathy and solidarity among people.
- Iustum represents the set of actions relevant to social coexistence, which directly relate to the law.
Thomasius argued that iustum is the domain of law, governing intersubjective behavior and aimed at preventing conflicts. These legal rules are distinct because they pertain to actions that are coercible—that is, enforceable by the state. According to Thomasius, only actions that conform to juridical commands and are inherently coercible can be considered “just.” Other behaviours related to morality and social etiquette, such as those falling under honestum and decorum, belong to the ethical sphere and cannot be forcibly regulated by the state.
Thomasius’ ideas laid the groundwork for enlightened absolutism. This is especially evident in his progressive views on criminal law, where he argued for the removal of heresy and magic from the list of state-punishable crimes and advocated for the abolition of judicial torture. He believed that the state should not intervene in matters that pertain solely to an individual’s morality or beliefs.
In Thomasius’ view, citizens should live by three fundamental rules:
- Honesty—adhering to the principles of wisdom and virtue to promote inner and social peace.
- Decorum—exhibiting fairness and respect towards others, ensuring harmony in society.
- Justice—a commitment to preventing conflict and violence between individuals, with laws designed to maintain order and enforce just behaviour.
By distinguishing between the coercive nature of law and the voluntary nature of morality, Thomasius contributed to the evolution of legal thought that emphasized both rational governance and personal liberty, paving the way for later developments in enlightened legal and political theory.
Gottfried Wilhelm von Leibniz
The philosophy of the German mathematician and jurist Gottfried Wilhelm Leibniz (1646–1719) left a lasting imprint on German legal culture and influenced codification methods in the centuries that followed. Leibniz proposed that positive law should not be viewed as subordinate to natural law, but rather as an “exact science” designed to govern the divine will, through which God provides humanity with the best of all possible worlds—this concept being central to Leibnizian optimism.
For Leibniz, law and politics must be approached as a science of justice. He argued that justice and utility are not irreconcilable values; it is illogical to pursue justice by demanding individuals sacrifice their own well-being or abandon what benefits them. Human actions can only be considered just when they also account for fairness towards others. If personal benefit is reduced to mere selfishness, true happiness remains out of reach.
Leibniz further divided law into three fundamental forms, each playing a crucial role in social structures. The first is property law, which stems from human appropriation of objects and the projection of personal will onto them. While property is essential, it represents the lowest tier of law, as ownership inherently risks infringing upon the rights of others. If anyone could claim any object at will, chaos would ensue, as our relationships with things are not detached from our interactions with fellow humans. Hence, property rights must be tempered by communal or societal laws.
The second form, societal law, governs human coexistence. It transforms the individual’s relationship with objects into relationships with other people, thereby curbing the excesses of private ownership and individual freedom.
Lastly, the third form is interior law, or the law of charity, which fosters a “republic of souls”—a spiritual harmony that transcends material interactions, promoting deep moral and ethical cohesion among individuals.
Once the State has been established, a critical issue arises regarding the extent to which private citizens should be granted autonomy over their property and how far the principles of commutative justice—which governs the fair exchange of assets and transactions between individuals—should be applied. In the political sphere, there are two primary types of justice:
- Commutative justice, which pertains to the regulation of private dealings and equitable transactions.
- Distributive justice, where state authorities moderate the absolute nature of property rights to ensure broader fairness and equity in society.
In addition to these, Leibniz introduces the concept of the right of piety, which seeks to interpret both law and justice in a way that prioritizes universal virtue and the fundamental values of humanity.
According to Leibniz, the challenge of politics lies in ensuring that society is organized to maximize the overall well-being of individuals, considering both potential harms and benefits within a specific historical context. The ultimate aim is to bring about the greatest possible perfection of society.
While Leibniz envisioned that, in an ideal State, all goods would be publicly owned and distributed by the State to individuals, he also acknowledged that such an arrangement would stifle personal initiative and deplete resources. A system where citizens rely entirely on the State would sap social energies, as the dependence on central authority could discourage productivity and innovation. Moreover, there is the danger that public administrators, entrusted with the management of communal resources, would misuse their power, often leading to arrogance and inefficiency.
Therefore, Leibniz argued that it is preferable to allow individuals the freedom to manage their own affairs, rather than overburdening the State with the responsibility of overseeing every aspect of citizens’ lives. This approach recognizes that the State is not perfect and may not be equipped to handle such an immense task effectively.
Nevertheless, the State still bears significant responsibility for ensuring the welfare of its citizens. This includes promoting the development of manufacturing, agriculture, craftsmanship, education, and scientific research, as well as addressing poverty. Misery, Leibniz argued, is a dangerous force that can lead individuals to poor decisions and poses a threat to the stability of the community as a whole. Thus, the State must work to alleviate the conditions of poverty to safeguard the well-being and cohesion of society.
