A Treatise of Legal Philosophy and General Jurisprudence

Volume 9

A History of the Philosophy of Law in the Civil Law World, 1600–1900

A Treatise of Legal Philosophy and General Jurisprudence

Editor-in-Chief

Enrico Pattaro, CIRSFID and Law Faculty, University of Bologna, Italy

Advisory Board

Norberto Bobbio †Ronald M. Dworkin, School of Law, New York University, USA andFaculty of Law, University College London, UKLawrence M. Friedman, Stanford Law School, Stanford University, USAKnud Haakonssen, Department of History, University of Sussex, UK

Associate Editors

Gerald J. Postema, Department of Philosophy, The University of NorthCarolina at Chapel Hill, USAPeter G. Stein, Faculty of Law, University of Cambridge, UK

Assistant Editor

Antonino Rotolo, CIRSFID and Law Faculty, University of Bologna, Italy

A Treatise of Legal Philosophy and General Jurisprudence

123

Volume 9

A History of the Philosophy of Law in the Civil Law World, 1600–1900

edited by

Damiano Canale Department of Legal Studies, Bocconi University, Milan, Italy

Paolo Grossi Faculty of Law, University of Florence, Italy

Hasso Hofmann

Faculty of Law, Humboldt University, Berlin, Germany

with contributions by

Paolo Becchi, Damiano Canale, Maurizio Fioravanti, Jean-Louis Halpérin, Maximiliano Hernández Marcos, Hasso Hofmann, Luca Mannori, Merio Scattola,

and Bernardo Sordi

There are pictures in this volume for which we have been unable to trace or contact the copyright holder.If notified, the publisher will be pleased to rectify any errors or omissions at the earliest opportunity.

ISBN 978-90-481-2963-8 e-ISBN 978-90-481-2964-5DOI 10.1007/978-90-481-2964-5Springer Dordrecht Heidelberg London New York

Library of Congress Control Number: 2005283610

c© Springer Science+Business Media B.V. 2009No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or byany means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without writtenpermission from the Publisher, with the exception of any material supplied specifically for the purposeof being entered and executed on a computer system, for exclusive use by the purchaser of the work.

Printed on acid-free paper

Springer is part of Springer Science+Business Media (www.springer.com)

Treatise Editor-in-chief

Prof. Enrico PattaroUniversita BolognaCIRSFIDVia Galliera, 340121 BolognaItalytreatpat.cirsfid@unibo.it

Volume EditorsProf. Damiano CanaleUniversita Commerciale “L. Bocconi”Dipartimento di Studi giuridicivia Rontgen, 120136 MilanItaly

Prof. Paolo GrossiUniversita di FirenzeCentro studi per la Storia del pensiero

giuridico modernoP.za Indipendenza, 950129 FlorenceItaly

Prof. Hasso HofmannHumboldt-Universitat zu BerlinJuristische FakultatUnter den Linden, 1110099 BerlinGermany

TABLE OF CONTENTS

A Note on the Authors XI

General Editor’s Preface to Volumes 9 and 10 of the Treatise XV

Preface to Volume 9 XIX

Chapter 1 - Scientia Iuris and Ius Naturae:The Jurisprudence of the Holy Roman Empirein the Seventeenth and Eighteenth Centuries(by Merio Scattola) 1

1.1. Introductory Remarks 11.2. Main Characteristics of Legal and Political Thought

in the Early Seventeenth Century 21.2.1. An Academic Discipline 21.2.2. Jurisprudence and Politics 5

1.3. Legal Doctrine in the Early Seventeenth Century 71.3.1. Dialectics and Law: The System of Academic Teaching 71.3.2. A Topological Philosophy of Law 91.3.3. The Transformation of Jurisprudence

in the Seventeenth Century 121.4. The History of Natural Law in the Late Seventeenth

and Early Eighteenth Centuries 151.5. The Epistemology of Modern Natural Law 28

1.5.1. The Method of Rational Calculation 281.5.2. The Principle of Natural Law 291.5.3. The History of Natural Law as the History of Its Principles 321.5.4. Rational Constraint 371.5.5. The Enforcement of Natural Law in Political Society 39

Chapter 2 - French Legal Science in the 17th and 18thCenturies: To the Limits of the Theory of Law(by Jean-Louis Halpérin) 43

2.1. Domat and the Systematic Construction of the Law 482.1.1. Didactic Intentions 512.1.2. The Traité des lois and the Foundations of Natural Law 53

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2.1.3. Duties and Successions: Necessary Liaisons between Men 562.1.4. Public Law, an Accessory or a Necessary Complement

to Civil Law? 602.2. Pothier and the Systematic Description of Private Law 61

2.2.1. The Sources of the French Law System 622.2.2. The Subjects of a General Part of Private Law 66

Chapter 3 - Conceptual Aspects of Legal Enlightenmentin Europe(by Maximiliano Hernández Marcos) 69

3.1. General Idea of the European Legal Enlightenment 703.1.1. On the Concept of the Enlightenment in Europe 70

3.1.1.1. The Temporalisation of History 723.1.1.2. The Conceptualisation of the Metaphor

of Light 733.1.1.3. Enlightenment as Politicisation 76

3.1.2. Structural Aspects of the Enlightened Conscience of Law.Panoramic Overview 77

3.2. The Obscureness of Jurisprudence 843.2.1. The Twilight of the Justinian Myth 873.2.2. The Struggle against Obscurity in Judicial Interpretation 89

3.2.2.1. The Canon of Literal Interpretation 903.2.2.2. Authentic Interpretation and Recourse

to the Legislator 943.3. The Natural Light of Reason in Jurisprudence 96

3.3.1. From Natural Law to the Science of Legislation 973.3.1.1. The Historical Formation of the Science

of Legislation: the State as a Legislatorand the Rationality of the Sovereign Will 99

3.3.1.2. Criteria of Rationality and Formsof Development of the Science of Legislation 102

3.3.2. The Meanings of Law 1083.3.2.1. The Law as a Mandate 1083.3.2.2. The Law as a Necessary Relation 1123.3.2.3. The Law as a General Will 116

3.3.3. The Space of Private Rights: Natural Libertyand Civil Liberty 118

3.3.4. The Lights of Reason of Criminal Law 1243.3.4.1. Basic Doctrinal Lines of Criminalist Culture:

A Historical Balance 1253.3.4.2. Concerning New Concepts of Crime

and Punishment 131

VIITABLE OF CONTENTS

Chapter 4 - The Many Faces of the Codification of Lawin Modern Continental Europe(by Damiano Canale) 135

4.1. Codes and Codifications: An Overview 1354.2. Three Discursive Levels 137

4.2.1. Legislative Technique 1374.2.2. Legal Theory 1384.2.3. Legal Philosophy 140

4.3. Natural Law and Codification 1414.4. An Alternative Framework 144

4.4.1. Three Theses 1444.4.2. State, Civil Society, and Codification 146

4.5. The French Model (Code Civil, 1804) 1494.5.1. Theoretical Background 150

4.5.1.1. The Heritage of French Legal Science 1504.5.1.2. Natural Law and Revolution 1524.5.1.3. Legislation as Education to Social Morality 1544.5.1.4. Portalis’s Reading of Montesquieu’s Science

of Government 1554.5.1.5. Did Bentham Influence the French Path

to Codification? 1574.5.2. The Constitutional Plan 1584.5.3. Structural Features 160

4.6. The Prussian Model (ALR, 1794) 1644.6.1. Theoretical Background 165

4.6.1.1. Christian Wolff and the German Rank Society(ständische Gesellschaft) 166

4.6.1.2. The Wolffian School: From Practical Philosophyto the Science of Legislation 167

4.6.2. The Constitutional Plan 1694.6.3. Structural Features 171

4.7. The Austrian Model (ABGB, 1811) 1744.7.1. Theoretical Background 175

4.7.1.1. Catholic Natural Law and Legislation 1754.7.1.2. Zeiller’s Reception of Kant’s Philosophy

of Law 1764.7.2. The Constitutional Plan 1784.7.3. Structural Features 179

4.8. Conclusion 182

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Chapter 5 - German Legal Science: The Crisis of Natural LawTheory, the Historicisms, and “Conceptual Jurisprudence”(by Paolo Becchi) 185

5.1. Introduction 1855.2. Gustav Hugo and the Crisis of German Natural Law Theory 186

5.2.1. From Natural Law Theory to the“Philosophy of Positive Law” 186

5.2.2. A Few Comparisons with the Late Natural Law Traditionin Germany 188

5.3. Thibaut and Savigny: The Polemic on Codification 1925.3.1. Premise 1925.3.2. Thibaut’s Position 192

5.3.2.1. Political Background 1925.3.2.2. Codification as a Way to Supersede

“Legal Particularism” and Simplify the LegalFramework 194

5.3.2.3. Legal and Political Ideology 1975.3.3. Savigny’s Criticism 200

5.3.3.1. Meaning and Limitations of an InterpretiveGuide 200

5.3.3.2. The Historicity of Law and the Roleof the Jurists 201

5.3.3.3. Legislation and the Jurists’ Law (Juristenrecht) 2035.3.3.3.1. The Law 2035.3.3.3.2. The Jurists’ Law 2055.3.3.3.3. The Problem of Interpretation:

A Brief Overview 2075.4. Hegel, Law, and the Jurists 209

5.4.1. The Traditional View 2095.4.2. A New, and Different, Start 2125.4.3. The Judge and the Law 215

5.5. Puchta and the Autonomy of Legal Doctrine 2185.5.1. Premise 2185.5.2. A Formally Equal Law 2195.5.3. A “Pure” Science of Law 221

Chapter 6 - Science of Administration and Administrative Law(by Luca Mannori and Bernardo Sordi) 225

6.1. Definition of the Topic and Problems of Method 2256.2. Between the Middle Ages and the Modern Age:

The Primacy of Justice 226

IXTABLE OF CONTENTS

6.3. The Seventeenth and Eighteenth Centuries:The Growth of Public Tasks 229

6.4. The Seventeenth-Eighteenth Century:The Formation of Commissarial Bureaucracies 232

6.5. The Language of the Revolution 2346.6. The Invention of Administrative Law 2376.7. In Search of the “Rechtsstaat” 2426.8. Administrative Law and Science of Administration:

Towards the Primacy of the Legal Method 2486.9. The Slow Emersion of Administrative Law in England 2526.10. The Discovery of Service Public 2546.11. Development and Decline of State Interventionism 256

Chapter 7 - Constitutionalism(by Maurizio Fioravanti) 263

7.1. Foreword 2637.2. Constitutionalism of the Origins 2667.3. Constitutionalism of Revolutions 2747.4. Constitutionalism of the Liberal Age 2867.5. Conclusions: A Look at the Twentieth Century 296

Chapter 8 - From Jhering to Radbruch: On the Logicof Traditional Legal Concepts to the Social Theoriesof Law to the Renewal of Legal Idealism(by Hasso Hofmann) 301

8.1. Preface 3018.2. Rudolf von Jhering’s Discovery of the Purpose in Law 302

8.2.1. Life and Works 3028.2.2. “Constructive Jurisprudence” according to the

“Method of Natural History” 3038.2.3. The Crisis—The Struggle for Right 3068.2.4. From Legal Formalism to Legal Naturalism 3088.2.5. The Question of Legal Positivism 3108.2.6. An Evolutionary Theory of Law 3138.2.7. Importance and Impact 315

8.2.7.1. Jhering as a Precursor 3158.2.7.2. The Modern School of Criminal Law,

the Free Law Movement and Jurisprudenceof Interests 317

8.2.7.3. Sociological Jurisprudence (Roscoe Pound) 3188.3. Social Theories of Law (“Legal Naturalism”) 319

X TREATISE, 9 - THE CIVIL LAW WORLD, 1600–1900

8.3.1. The Legal Theorists of the New “Scientific School”in France 3198.3.1.1. François Gény 3198.3.1.2. Léon Duguit 3218.3.1.3. Maurice Hauriou 322

8.3.2. Adolf Merkel’s Allgemeine Rechtslehre (General Theoryof Law) as a “Positivistic Philosophy of Law” 324

8.3.3. Jurisprudence in the Class Society—Anton Menger’s“Jurists’ Socialism” 327

8.3.4. Otto von Gierke’s Social Law of Associations 3318.3.4.1. Gierke’s Position and Importance 3318.3.4.2. Life and Scientific Development 3328.3.4.3. Central Topics: The Actual Body Corporate

and the Development of the Law of Associations 3358.4. Towards Legal Neo-Idealism 337

8.4.1. Josef Kohler’s Criticism of Jhering in the Nameof Metaphysics 337

8.4.2. Fritz Berolzheimer’s Neo-Hegelian “Real Idealism” 3428.4.3. The Purpose of Law as a Value—The Neo-Kantian

Beginnings of Gustav Radbruch and the End of the“Long 19th Century” 3478.4.3.1. Roots 3478.4.3.2. Radbruch’s Review of the 19th Century 350

Bibliography 355

Index of Subjects 399

Index of Names 401

A NOTE ON THE AUTHORS

PAOLO BECCHI is professor of philosophy of law at the Genoa UniversitySchool of Law. His recent publications include Da Pufendorf a Hegel:Introduzione alla storia moderna della filosofia del diritto (Rome: Aracne,2007), Morte cerebrale e trapianto di organi (Brescia: Morcelliana, 2008), Lafragilità della vita: Contributi su Hans Jonas (Naples: La Scuola di Pitagora,2008), Quando finisce la vita. La morale e il diritto di fronte alla morte (Rome:Aracne, 2009). He was awarded from DAAD (1981–1983) and the Alexandervon Humboldt Foundation (1989–1991) scholarships supporting his researchat the University of Saarland (Germany), where he worked with Karl-HeinzIlting and Alessandro Baratta. His Italian translation of Hegel’s Vorlesungenüber Rechtsphilosophie has been recognized as the second-best scholarly andliterary translation at the Città di Monselice prize.

DAMIANO CANALE is professor of philosophy of law and legal theory atBocconi University, Milan (Italy). He is author of La costituzione delle diffe-renze: Giusnaturalismo e codificazione del diritto civile nella Prussia del Sette-cento (Turin: Giappichelli, 2000) and Forme del limite nell’interpretazione giu-diziale (Padua: CEDAM, 2003). His essays on legal theory and legal argumen-tation have appeared in the journals Ratio Juris and Informal Logic.

MAURIZIO FIORAVANTI is professor of history of medieval and modernlaw and of history of modern constitutions at the Faculty of Law of the Uni-versity of Florence and was formerly dean of the same faculty. He has beenresearcher in history of European law at the Max Planck Institut. He is amember of the German Society of Constitutional History. His scholarly inter-ests are in comparative constitutional history, the theory and history of theconstitution, the history of constitutionalism, and constitutional Europeanhistory. His major publications include Giuristi e costituzione politica nell’Ot-tocento Tedesco (Milan: Giuffrè, 1979), Stato e costituzione (Turin: Giappi-chelli, 1993), Appunti di storia delle costituzioni moderne (Turin: Giappichelli,1995), Costituzione e popolo sovrano (Bologna: Il Mulino, 1998), Costituzione(Bologna: Il Mulino, 1999), La scienza del diritto pubblico (Milan: Giuffrè,2001), Lo Stato moderno in Europa: Istituzioni e diritto (Rome and Bari:Laterza, 2002), and Costituzionalismo: Percorsi della storia e tendenze attuali(Rome and Bari: Laterza, 2009). He has been working for a number of yearson a constitution for Europe from a theoretical and historical perspective. His

XII TREATISE, 9 - THE CIVIL LAW WORLD, 1600–1900

report on Italy appears in Ius Publicum Europaeum (Heidelberg: Müller,2008), a handbook of public European law conceived and edited by the MaxPlanck Institut for Comparative Public Law and International Law.

PAOLO GROSSI is professor emeritus in history of medieval and modernlaw at the Florence University School of Law, and is a member of theAccademia dei Lincei and of the Italian Constitutional Court. He has beenawarded law degrees honoris causa by the Universities of Frankfurt am Main(1989), Stockholm (1990), Autónoma de Barcelona (1991), Autónoma de Ma-drid (1994), Seville (1998), Bologna (2005), Naples, Suor Orsola Benincasa(2007), and by the Catholic University “Sacro Cuore” (2008). He promotedand founded in 1971 the journal Quaderni fiorentini per la storia del pensierogiuridico moderno, and in 1980 he started the Centro di Studi per la Storia delPensiero Giuridico Moderno at the University of Florence. He sat from 1989to 1998 on the scientific committee (Fachbeirat) of the Max Planck Institutefor European History of Law, based in Frankfurt. In 2000, he was awardedthe Jurist of the Year prize by the European Law Students Association.Among his writings are Il dominio e le cose (Milan: Giuffrè, 1992), L’ordinegiuridico medievale (Rome and Bari: Laterza, 1995), Assolutismo giuridico e di-ritto privato (Milan: Giuffrè, 1998), Scienza giuridica italiana: Un profilo sto-rico, 1860–1950 (Milan: Giuffrè, 2000), Mitologie giuridiche della modernità(Milan: Giuffrè, 2001), Prima lezione di diritto (Rome and Bari: Laterza,2003), Il diritto tra potere e ordinamento (Naples: Editoriale Scientifica, 2005),Società, diritto, stato: Un recupero per il diritto (Milan: Giuffrè, 2006), L’Euro-pa del diritto (Rome and Bari: Laterza, 2007), and Nobiltà del diritto: Profilidei giuristi (Milan: Giuffrè, 2008).

JEAN-LOUIS HALPÉRIN is law professor at the Ecole Normale Supérieure,Paris. He is author of L’impossible Code civil (Paris: PUF, 1992), Histoire dudroit privé français depuis 1804 (Paris: PUF, 1996 and 2001), and Histoire dudroit des biens (Paris: Economica, 2008). He has edited the Dictionnairehistorique des juristes français (with Patrick Arabeyre and Jacques Krynen;Paris: PUF, 2007) and the Dictionnaire des grandes oeuvres juridiques (Paris:Dalloz, 2008).

MAXIMILIANO HERNÁNDEZ-MARCOS is a tenured professor of historyof philosophy at the University of Salamanca. He is a member of DGE18J(Deutsche Gesellschaft für die Erforschung des 18. Jahrhunderts) and the edi-torial secretary of the scholarly journals Azafea: Revista de Filosofía (Sala-manca) and Res Publica (Murcia). He is author of many articles in the follow-

XIIIA NOTE ON THE AUTHORS

ing lines of research: the philosophy of Kant and the Enlightenment, naturallaw and the Prussian Code, and German political philosophy of the Weimarera. His most important books include his doctoral thesis, La Crítica de larazón pura como proceso civil (Salamanca: Universidad de Salamanca, 1994),Hermann Heller, El sentido de la política y otros ensayos (Valencia: Pre-Textos,1996), as editor, and the collective volume Literatura y política en la época deWeimar (Madrid: Verbum, 1998), as coeditor.

HASSO HOFMANN is professor emeritus of constitutional law and legalphilosophy at the Humboldt University in Berlin. He is author of Legitimitätgegen Legalität—Der Weg der politischen Philosophie Carl Schmitts (4th ed.,Berlin: Duncker & Humblot, 2002), Repräsentation—Studien zur Wort- undBegriffsgeschichte von der Antike bis ins 19. Jahrhundert (4th ed., Berlin:Duncker & Humblot, 2003), and Einführung in die Rechts- und Staatsphi-losophie (4th ed., Darmstadt: Wissenschaftliche Buchgesellschaft, 2008). He isa fellow of the Bavarian Academy and of the Berlin-BrandenburgischeAkademie der Wissenschaften, and has been a fellow of the Center for Ad-vanced Study, Berlin, and of the Carl Friedrich von Siemens Foundation, Mu-nich. In 2001, he received an honoris causa doctorate from the Goethe Univer-sity, Frankfurt.

LUCA MANNORI is professor of history of political institutions at the Univer-sity of Florence. He is author of Uno Stato per Romagnosi, 2 vols. (Milan:Giuffrè, 1984–1986) and of Il sovrano tutore: Pluralismo istituzionale e accen-tramento amministrativo nel Principato dei Medici (Milan: Giuffrè, 1994); he iscoauthor, with Bernardo Sordi, of Storia del diritto amministrativo (Rome andBari: Laterza, 2001). He is also editor of Comunità e poteri centrali negli AntichiStati italiani (Naples: CUEN, 1996) and of Kataster und moderner Staat inItalien, Spanien und Frankreich (18Jh.) (Baden-Baden: Nomos Verlagsgesell-schaft, 2001). He is a fellow of the Società Italiana di Studi Storico-Istituzionali.

MERIO SCATTOLA is professor of history of political ideas at the Universityof Padua. He is author of Teologia politica (Bologna: Il Mulino, 2007), Kriegdes Wissens—Wissen des Krieges (Padua: Unipress, 2006), Dalla virtù allascienza (Milan: F. Angeli, 2003), and Das Naturrecht vor dem Naturrecht(Tübingen: Niemeyer, 1999).

BERNARDO SORDI is professor of history of law at the Florence UniversitySchool of Law, where he directs the Centre for the History of Modern Legal

XIV TREATISE, 9 - THE CIVIL LAW WORLD, 1600–1900

Thought, founded in 1971, largely through the initiative of Paolo Grossi. Hesits on the editorial board of the journal Quaderni fiorentini—produced bythe centre itself and now published online at www.centropgm.unifi.it (at thepage “Quaderni on line”)—and coordinates the Ph.D. programme GlobalLaw: History and Theory, offered at the same centre in cooperation withSUM (Italian Institute for Human Sciences) and the law department of theUniversity of Rome La Sapienza. His research interests concern constitutionaland administrative history in the modern and contemporary age. He has beena visiting professor in Paris (École des Hautes Etudes en Sciences Sociales)and in Frankfurt (Max Planck Institut für europäische Rechtsgeschichte). Hehas written over sixty works, among which Giustizia e amministrazione nel-l’Italia liberale: La formazione della nozione di interesse legittimo (Milan:Giuffrè, 1985), Tra Weimar e Vienna: Amministrazione pubblica e teoria giuri-dica nel primo dopoguerra (Milan: Giuffrè, 1987), L’amministrazione illumi-nata: Riforma delle comunità e progetti di costituzione nella Toscana leopoldina(Milan: Giuffrè, 1991), and Storia del diritto amministrativo (with LucaMannori, Rome and Bari: Laterza, 2001, 3rd ed. 2004).

GENERAL EDITOR’S PREFACETO VOLUMES 9 AND 10 OF THE TREATISE

I am happy to present here the third batch of volumes for the Treatise project:This is the batch consisting of Volumes 9 and 10, namely, A History of the Phi-losophy of Law in the Civil Law World, 1600–1900, edited by DamianoCanale, Paolo Grossi, and Hasso Hofmann, and The Philosophers’ Philosophyof Law from the Seventeenth Century to Our Days, by Patrick Riley. Three vol-umes will follow: Two are devoted to the philosophy of law in the 20th cen-tury, and the third one will be the index for the entire Treatise, which willtherefore ultimately comprise thirteen volumes.1

This Volume 9 runs parallel to Volume 8, A History of the Philosophy ofLaw in the Common Law World, 1600–1900, by Michael Lobban, publishedin 2007.

Volume 10, for its part, takes up where Volume 6 left off: which appearedunder the title A History of the Philosophy of Law from the Ancient Greeks tothe Scholastics (edited by Fred Miller Jr. in association with Carrie-AnnBiondi, likewise published in 2007), and which is mainly a history of the phi-losophers’ philosophy of law (let us refer to this philosophy as A).

In this Volume 9, the reader will find some chapters (Chapters 2 and 6, forexample) mainly devoted to the jurists’ philosophy of law (let us refer to thisphilosophy as B), and some chapters (Chapters 1 and 3, for example) mainlydevoted to the legal philosophers’ philosophy of law (let us refer to this latterphilosophy as C). Volume 10 is expressly devoted, in the title itself, to phi-losophy A.

Of course, these rubrics—A, B, and C—only express broad categorieswith respect to all historical volumes, and carry a good number ofsimplifications. But the volume editors, in their respective prefaces, havespecified how and where their volumes each relate to these rubrics.

For the reader’s convenience, and by way of clarifying what was just brieflymentioned, I should recall here a few observations already premissed to Vol-umes 1 and 6. Thus, among the distinctions that from the outset served asguiding principles in planning out the Treatise project was the distinction be-tween philosophy A and B. However, we thought it appropriate to introduceas well C, which may be considered the philosophy of law par excellence.Prior to the modern era there was no distinct discipline that could be called

1 The first batch consists of the first five volumes of the Treatise (2005), and together theymake up a theoretical treatment of the philosophy of law. The second batch consists of the firstthree historical volumes of the Treatise (Volumes 6, 7, and 8). On the Treatise’s overallframework, see the General Editor’s prefaces in Volume 1, xix–xxx, and Volume 6, xv–xviii.

XVI TREATISE, 9 - THE CIVIL LAW WORLD, 1600–1900

“philosophy of law,” and it was only in the modern age that scholars began toview themselves as philosophers of law.

The philosophy of law of the modern rationalistic natural-law school wasthe first classic instance of C. Now, there are of course theoretical differencesthat distinguish the legal philosophers in the natural-law school from one an-other, but then they all laid at the foundation of their doctrines a series ofspeculative questions from which they derived systems of ethics ordinegeometrico demonstrata (Benedict de Spinoza, 1632–1677) or systems of natu-ral law methodo scientifica pertractatum (Christian Wolff, 1670–1754). Inother words, citing the title of a work by Wilhelm Leibniz (1646–1716), oneof the fundamental aspects characterising the rationalistic natural-law schoolis a nova methodus discendae docendaeque jurisprudentiae, a new method forlearning and teaching legal science, a method that leads to a systematic con-struction or reconstruction of law.2 The rationalistic natural-law school—tra-ditionally made to begin with Grotius (1583–1645)—developed in the 17thcentury, and in 18th it received its typical Enlightenment form.

The second classic instance of philosophy C in the history of legal thinkingwas German legal positivism, which at the end of the 19th century proclaimedthe end of C as embodied in the rationalistic natural-law conceptions and re-placed it, ironically, with the Allgemeine Rechtslehre, that is, with the generaldoctrine, or theory, of law.

Hence, from the 17th to the 19th century, philosophy C developed two ri-val orientations, and took two different names, natural-law school and legalpositivism, but did so, however, following a formalistic path and taking as wella strong systematic approach. German formalistic and systematic legal positiv-ism reached its most refined version in the 20th century, with Hans Kelsen(1881–1973), who gave us a very sophisticated representation of the legal sys-tem—a glorious and fragile representation of das Recht (“what is right”) alsRechtsordnung (“as a system of what is right”) that had the strengths and theweaknesses of a daring cathedral of crystal.3

2 “The Nova methodus is aimed at reducing law to systematic unity, this by giving legalmaterial an order that ascends to simple principles from which to obtain exceptionless rules.This material is, again, Roman law [it is so in Leibniz’s Nova methodus, but not with any of theother exponents of the new natural-law theory], the law which at that time [when Leibniz waswriting] was in force in Germany as the ius commune, but a ius commune reordered on thebasis of a new method, a method using which the law can be rationalized and hence endowedwith the unity which in the Justinianian system it lacked. The system Leibniz envisioned andput forward must be such that, as a complete whole, it provides a solution for each question,and must do so through precise arguments expressed in a rigorous language, on the model oflogical-mathematical procedure” (Fassò 2001, 189; my translation; cf. also ibid., 186).

3 On these questions, see Volume 1 of this Treatise. In the second half of the 20th century,Kelsen’s formalistic legal positivism spread not only in civil-law countries (even outside ofEurope: in Latin America, for example), but also, in some measure, in common-law countries,this on account of the influence that Kelsen’s work and thought had beginning from the time of

XVIIGENERAL EDITOR’S PREFACE TO VOLUMES 9 AND 10

By way of a summary, Volumes 6 and 7 bring out the twofold distinctionbetween philosophies A and B. The two volumes are thus roughly parallel asto their chronology and complementary as to their subject matter.

In the two volumes being presented here (Volumes 9 and 10), as well as inVolume 8—covering among them the period from the 17th to the 20th cen-tury—the underlying distinction is instead the threefold distinction intro-duced above between A, B, and C. These three philosophies of law are treatedin different ways and with different emphases in these volumes, albeit not al-ways in explicit distinction from one another, the reason being that the dis-tinction was meant to be a principle for each volume editor to interpret freely,according to his understanding of the purposes and contents of his volume.4

I am grateful to and pleased to thank the many people who, in differentroles, have had a part in bringing out Volumes 9 and 10. Of course, the creditfor the specific content, as well as a warm thanks, goes in the first place to theauthors and volume editors: Damiano Canale, Paolo Grossi, Hasso Hofmann,and the various contributors to Volume 9; and Patrick Riley, for Volume 10.

Further, I should thank Gerald Postema, who as a member of Treatise’s ad-visory board played a fundamental role by contributing with ideas, advice,and oversight; and also Nino Rotolo, assistant editor of the entire Treatise, forcoordinating the work that made these two volumes possible: Had it not beenfor his generous and passionate commitment, the two volumes would nothave come to light. And I should finally thank Corrado Roversi, who helpedme manage relations with authors, editors, and the publisher, and who hashad an active part, along with Nino Rotolo, in the academic discussions de-voted to improving the way in which to organize the subjects treated.

Enrico Pattaro

University of BolognaCIRSFID and Law Faculty

his emigration to the United States. Of course, as is well known, there is a native and veryimportant empiricist legal positivism in Anglophone countries that traces back at least toHobbes and was then developed in the so-called analytical jurisprudence, whose fathers areJeremy Bentham (1748–1832) and John Austin (1790–1859).

4 Thus, Volume 8 is a history of the philosophy of law in common-law countries from the17th to the 19th century and, as is observed by its author, Michael Lobban, it is “primarilyconcerned with jurists’ and legal philosophers’ understandings of law, rather than with those ofphilosophers.” Volume 9, as has already been observed, is mainly a history of the jurists’ andthe legal philosophers’ philosophy of law from the 17th to the 19th century in civil-lawcountries. And Volume 10, even though it is in the first instance an ideal continuation ofVolume 6, and hence a history of the philosophers’ philosophy of law from the 17th to the 20thcentury, also discusses, for reasons rightly pointed out by Patrick Riley, some thinkers, such asGrotius and Pufendorf, whose philosophy of law might properly be described as a legalphilosopher’s philosophy of law.

PREFACE TO VOLUME 9

This volume is devoted to the understandings of law developed from the mid-17th century to the end of the 19th century by jurists and legal philosophersworking in the civil-law tradition.1 This makes the volume complementary toMichael Lobban’s Volume 8 of this Treatise, where the same subject matterand the same period are covered, but from a common-law perspective instead.

This peculiar combination of subject matter and period has made it neces-sary for us as volume editors to make certain choices in treating the civil-lawtradition: These choices concern the volume’s overall design as well as theframing of its single chapters.

Which is to say that the thinkers and schools of thought covered are notarranged along a strictly chronological line of development, nor is there an at-tempt to show how different thinkers and schools of thought have offered dif-ferent solutions to the same basic questions, concerning the nature, the dis-tinctive traits, and the function of law, since that would not have made it pos-sible to bring out how complex the development was that legal thought wentthrough during the arc of time in question: Such a development cannot be re-duced to a linear sequence of theories and ideas, for it is instead broken up bysignificant discontinuities. One need only recall here, by way of example, howan understanding of law still tied to the late-medieval world eclipsed duringthis period, making it possible for modern legal science to progressively takehold; or how the institutions of the Ancien Régime fell apart and the modernstate became fully established politically as well as administratively; or how le-gal pluralism survived in Europe until the end of the 18th century, when legalmonism came into being with the 19th-century codifications. This makes itnecessary—as we take into view the jurists’ and legal philosophers’ under-standings of law in the historical period in question—to speak of different ep-ochs of development rather than of different stages within the same epoch.

Add to this that the discontinuities just mentioned were marked by differ-ent characteristics, came to pass at different times, and had entirely differentconsequences depending on which levels legal discourse, which areas of cul-tural influence, and which parts of the legal system we are considering.

Let us take a few examples to briefly consider, in the first place, what thismeans with respect to the different levels of legal discourse. There was thediscourse of the practical jurists on the one hand and that of the theoreticalones on the other. And it can be observed in this regard that, while the jurists’

1 On the distinction between the jurists’ and legal philosophers’ philosophy of law, see thegeneral editor’s prefaces to this volume and to Volumes 1 and 6 of this Treatise.

XX TREATISE, 9 - THE CIVIL LAW WORLD, 1600–1900

practical discourse offered an important basis of continuity for Europe’s legalculture—so much so as to make it look for a long time as though this culturewas immune from the social and political upheavals the Continent wentthrough in the 18th and 19th centuries—those among the theoretical juristswho were sensitive to the calls for change and emancipation that marked thishistorical period played a prominent role in the effort to set on a new founda-tion the science of law and the government of society. These theoretical juristsnot only left an indelible mark in the history of European legal thought butalso helped modify the institutional context in which the practical juristsworked, and in this way the theoretical discourse undertaken by some juristsacted to indirectly influence the practical activity of the others.

And let us consider, in the second place, how the different branches of thelaw, in their historical development, came under the influence of the princi-ples of natural law: These principles were in the first place received and as-similated into doctrines of public and criminal law as well as into administra-tive science over the course of the 17th and 18th centuries, apparently not en-croaching upon the basic concepts of civil law, or of business law, admiralty,and so on; but at the same time, this assimilation changed the structure andfunction of the legal system as a whole, and did so as well with respect to thedifferent branches and areas of the law. The 19th-century bourgeois person(the person recognized by law as a subject of rights and duties) developed inthis sense out of a series of transformations affecting the way all the areas ofthe law in the period in question were understood overall. These very trans-formations, however, eventually brought on the crisis of legal science itself,which in the following century would take some radical and unexpectedturns.

It was thus by reasoning on multiple levels of discourse, as well as on dif-ferent normative planes and in different areas of practical interest, that the ju-rists and the legal philosophers of the modern age came at their under-standings of the law—and it is in order to reflect this multiplicity that we haveseen fit to organize this volume on the basis of a thematic criterion. What isoffered here is not a history of legal philosophers or of legal theories but a his-tory of the basic legal concepts and of the disciplines that systematized themin a set form in the legal thought of Continental Europe.

With this method that we have chosen come at least three cautions for thereader:

(1) The authors treated and their works will be considered not only forthe original ways in which they offer to solve traditional problems in the phi-losophy of law but also, and in the first place, for their contribution in fram-ing these very problems, in understanding the social phenomena out of whichthey originated, and in founding the disciplines that made it possible to im-part an organic unity to such an understanding. The same goes for the phi-

XXIPREFACE TO VOLUME 9

losophers properly so called, such as Leibniz, Pufendorf, Kant, and Hegel: Itis in other volumes of this Treatise that their thought is presented, and so inthis volume they will be taken up mainly for the influence they exerted on thescience and practice of law.

(2) The volume’s different chapters may have some historical overlap intheir discussion of different themes and topics. The historical development ofEuropean constitutionalism, for example, stretches across the entire time spancovered by this volume, and for this reason it crosses paths with the topicstreated in the other chapters, and yet it carries a conceptual identity of its ownthat warrants a discussion apart in a dedicated chapter. And so it is that eachchapter in the volume rounds out the discussion undertaken in the others be-fore it as well as in the ones that follow.

(3) Each topic and issue will primarily be addressed by reference to thegeographic area out of which it originated, with only a cursory treatment ofthe way in which the related concepts and ideas spread across other territo-ries. Then too, reference is made in some chapters to the common-law tradi-tion, since it proved necessary to point out its ongoing cultural exchange withthe civil-law tradition in the historical period in question. (The reader is re-ferred to Volume 8 of the Treatise for an exhaustive discussion of these cross-connections.)

Having said that, here is a run-through of the themes and topics treated inthis volume. The first two chapters discuss the way the scientific methodelaborated and firmed up by modern natural-law theory was received into Eu-ropean legal science in the period leading to the French Revolution, withChapter 1 focusing on the Germanic area, where the universities acted as themain conduit for this reception, and Chapter 2 focusing instead on the Frencharea, where a decisive role was played by the legal practitioners.

Chapter 3 is devoted to that fervent crucible of conceptual production thatwas the European legal Enlightenment, and to the reverberations this move-ment had on the culture as well as on the politics of law.

Chapter 4 discusses the codification of law, describing in what ways and inwhat degree codification shaped the structure of Europe’s legal systems andthe organization of its society through law.

Chapter 5 traces out the development of German legal science through thecrisis of modern natural-law theory and the birth of the great European codes,considering in particular the birth of the Historical School of law and its laterdevelopment with Puchta.

Chapter 6 reconstructs the birth and evolution of the modern science ofadministration, which played a central role in helping the institutions of themodern state become woven into the social and economic fabric.

Chapter 7 is dedicated to the history of European constitutionalism, aspreviously mentioned.

XXII TREATISE, 9 - THE CIVIL LAW WORLD, 1600–1900

Chapter 8 discusses the crisis of conceptual jurisprudence, the voluntaristand vitalistic conceptions this crisis led to, and the birth of neo-idealist move-ments in the late 19th and early 20th centuries. The discussion turns in con-clusion to the judgment the young Gustav Radbruch had of the jurists’ andthe legal philosophers’ understandings of law in the period covered in thisvolume: It is a judgment that offers in retrospect great insight on this histori-cal period, at the same time as it sets up some central issues the philosophy oflaw would be taken up with in the 20th century.

It must be recognized, by way of a conclusion to these introductory re-marks, that this entire volume is the outcome of a unitary project, the outcomeof a discussion that has engaged, in addition to the volume’s editors and au-thors, Enrico Pattaro, Gerald J. Postema, Patrick Riley, Antonino Rotolo, andCorrado Roversi: A special word of thanks goes to them for contributing ideasand insights that have been essential in writing this volume, as has the effortthey have expended in coordinating the entire work. Also, as much as the vol-ume may be cast in the mould of a unitary plan, the contributors have each in-vestigated their subjects on their own, each bringing to bear their ownhistoriographical sensibility and each working in a distinctive style of researchand presentation. We believe these many voices afford in combination a broadand rich perspective on a historical period that crucially shaped the course ofEuropean history, in an equal degree as it presented a multitude of facets evinc-ing a complexity much deeper than we might otherwise be able to appreciate.

Damiano Canale

Bocconi University, MilanDepartment of Legal Studies

Hasso Hofmann

Humboldt University, BerlinFaculty of Law

A Treatise of Legal Philosophy and General Jurisprudence

Volume 10

The Philosophers’ Philosophy of Law from the Seventeenth Century to Our Days

A Treatise of Legal Philosophy and General Jurisprudence

Editor-in-Chief

Enrico Pattaro, CIRSFID and Law Faculty, University of Bologna, Italy

Advisory Board

Norberto Bobbio †Ronald M. Dworkin, School of Law, New York University, USA andFaculty of Law, University College London, UKLawrence M. Friedman, Stanford Law School, Stanford University, USAKnud Haakonssen, Department of History, University of Sussex, UK

Associate Editors

Gerald J. Postema, Department of Philosophy, The University of NorthCarolina at Chapel Hill, USAPeter G. Stein, Faculty of Law, University of Cambridge, UK

Assistant Editor

Antonino Rotolo, CIRSFID and Law Faculty, University of Bologna, Italy

A Treatise of Legal Philosophy and General Jurisprudence

123

Volume 10

The Philosophers’ Philosophy of Lawfrom the Seventeenth Century

to Our Days

by

Patrick Riley Department of Government, Harvard University, USA

There are pictures in this volume for which we have been unable to trace or contact the copyright holder.If notified, the publisher will be pleased to rectify any errors or omissions at the earliest opportunity.

ISBN 978-90-481-2963-8 e-ISBN 978-90-481-2964-5DOI 10.1007/978-90-481-2964-5Springer Dordrecht Heidelberg London New York

c© Springer Science+Business Media B.V. 2009No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or byany means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without writtenpermission from the Publisher, with the exception of any material supplied specifically for the purposeof being entered and executed on a computer system, for exclusive use by the purchaser of the work.

Printed on acid-free paper

Springer is part of Springer Science+Business Media (www.springer.com)

Library of Congress Control Number: 2005283610

Treatise Editor-in-chief

Prof. Enrico PattaroUniversita BolognaCIRSFIDVia Galliera, 340121 BolognaItalytreatpat.cirsfid@unibo.it

Volume AuthorProf. Patrick RileyHarvard UniversityDepartment of Government1737 Cambridge StreetCambridge, MA 02138USA

For my Mother,Hazel Riley Sullivan,

In the 90th year of her Age

TABLE OF CONTENTS

A Note on the Author XI

Preface XIII

Chapter 1 - The (Non)-Legal Thought of Niccolò Machiavelli 1

1.1. Introduction 11.2. Law as Personal Creativity in the “Legislator” 1

Chapter 2 - The Legal Philosophy of Hugo Grotius 11

2.1. Introduction 112.2. Origin and Genesis of Grotius’ Thought 122.3. Grotius on “Demonstrative” Natural Law 162.4. Grotius’ Influence on Leibniz 172.5. Conclusion 22

Chapter 3 - The Legal Philosophy of Thomas Hobbes 25

3.1. Introduction 253.2. Law and “Covenant” in Hobbes 263.3. Hobbes’ Theory of Will 323.4. Hobbes and Spinoza 383.5. Hobbes, Kant, Machiavelli, and Shakespeare 43

Chapter 4 - Consent and Natural Law in Locke’s Philosophy 47

4.1. Introduction 474.2. Natural and Civil Law in Locke 484.3. Locke on Natural Law 574.4. Conclusion 64

Chapter 5 - The Legal Theory of Pufendorf 65

5.1. Introduction: The Influence of Stoicism,Grotius, and Hobbes 65

5.2. Pufendorf’s Hobbesian Theory of Legal Obligation 695.3. Christian Thomasius 74

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Chapter 6 - Leibniz on Justice as “the Charity of Wise” 77

6.1. Christian-Platonist Foundations ofLeibniz’s Universal Jurisprudence 77

6.2. Leibniz on Justice as an “Ascent” to Charityand Benevolence 86

6.3. A Provisional Overview 906.4. Justice as Wise Charity: Leibniz contra Hobbes,

Locke and (Especially) Pascal 916.5. The Legal Philosophy of Christian Wolff 96

6.5.1. Introduction 966.5.2. Wolff and Leibniz 966.5.3. Leibniz vs. Wolff 1006.5.4. Leibniz’s Summary of His “Universal Jurisprudence” 1036.5.5. Conclusion 105

Chapter 7 - Malebranche and “Cartesianized Augustinianism” 107

7.1. Introduction 1077.2. Malebranche’s “Legal” Theology 1087.3. Malebranche’s Critics 1117.4. Bossuet contra Malebranche 1147.5. Malebranche’s Réflexions sur la prémotion physique (1715) 1187.6. Beyond “General Law” 1227.7. Malebranche’s “Occasionalism” 1307.8. Conclusion 134

Chapter 8 - Montesquieu and Vico 135

8.1. Montesquieu’s Philosophy of Law 1358.2. The Legal Philosophy of Giambattista Vico 145

Chapter 9 - Hume and Smith 151

9.1. David Hume 1519.2. Hume’s Anti-Rationalism: Contra Plato 1529.3. Hume’s “Conventionalism” 1549.4. Hume’s Anti-Contractarianism: Contra Locke 1579.5. Adam Smith 160

Chapter 10 - Voltaire’s Skeptical Jurisprudence:Contra Leibnizian Optimism in Candide 165

10.1. Introduction 16510.2. Voltaire and Leibniz 167

IXTABLE OF CONTENTS

10.3. Voltaire against Leibniz 17010.4. Justice and Ignorance 17410.5. Conclusion 175

Chapter 11 - The Legal Philosophy of Jean-Jacques Rousseau 177

11.1. Introduction 17711.2. Rousseau as “Ancient and Modern” 17711.3. General Will and General Law 189

Chapter 12 - The Legal Philosophy of Kant 197

12.1. Introduction 19712.2. Morality, Law, and Politics 19912.3. Law as “Eternal” 20212.4. Law vs. “Good Will” 21012.5. Problems in Kant: Legal Punishment 21112.6. Problems in Kant: Equality and Property 21412.7. Conclusion 21612.8. The Legal Thought of Johann Gottlieb Fichte 220

Chapter 13 - The Legal Philosophy of G. W. F. Hegel 223

13.1. Introduction 22313.2. Phenomenology of Mind 23213.3. Philosophy of Right 247

Chapter 14 - Karl Marx’s Philosophy of Law 257

14.1. Introduction 25714.2. Marx on “Ideology” 25814.3. Law in Gotha Program and in Kapital III, 48 262

Chapter 15 - The Legal Thought of J. S. Mill 267

15.1. Introduction 26715.2. Mill vs. Bentham 26915.3. On Liberty 27315.4. Mill on “Justice”: A Virtue “per se”? 27815.5. Conclusion 281

Chapter 16 - Nietzsche as a Philosopher of Law 283

16.1. Introduction 28316.2. Law as Christian Egalitarianism “Rationalized” 284

X TREATISE, 10 - THE PHILOSOPHERS’ PHILOSOPHY OF LAW

Chapter 17 - Neo-Kantian Epilogue: Rawls and Habermas 293

17.1. The Legal Thought of John Rawls 29317.2. Contractarianism, Rousseau, and Kant 29417.3. The Rule of Law in Rawls 29617.4. Jürgen Habermas 299

Bibliography 305

Index of Subjects 321

Index of Names 327

A NOTE ON THE AUTHOR

Patrick Riley was born in California in 1941; he received his M. Phil. at theLondon School of Economics (with Michael Oakeshott) in 1964, and hisM.A. (1967) and Ph.D. (1968) from Harvard University (with John Rawls,Judith Shklar, Carl J. Friedrich and Lon Fuller). He then taught at Harvard,1968–1972. After 35 years at the University of Wisconsin, Madison (the last20 as Oakeshott Professor of Political, Moral and Legal Philosophy), he re-turned full-time to Harvard in 2007 (where he taught Leibniz’ Iurisprudentiauniversalis in 2007–2008). (He has also taught at Oxford, Cambridge, Berlin,Aix-en-Provence, Florence and Bologna.)

Among his published works are: Leibniz: Political Writings (CambridgeUniversity Press, 1972, 1988); Will and Political Legitimacy: A Critical Exposi-tion of Social Contract Theory in Hobbes, Locke, Rousseau, Kant and Hegel(Harvard University Press, 1982); Kant’s Political Philosophy (Rowman andLittlefield, 1983); The General Will before Rousseau (Princeton UniversityPress, 1986; Italian ed. Giuffré, 1995); Leibniz’ Universal Jurisprudence(Harvard University Press, 1996, German and French eds., forthcoming); andThe Cambridge Companion to Rousseau (Cambridge University Press, 2001;Chinese ed. 2007). His critical edition of Leibniz’ Meditation on Justice will bepublished by Yale University Press in the near future.

He has also published critical editions of works by Malebranche, Fénelonand Bossuet (Oxford and Cambridge University Press), about 50 book-chap-ters, and around 200 articles and reviews in leading journals. For years heserved as Vice President of the American Society for Political and Legal Phi-losophy, and as co-editor of the Society’s Yearbook, Nomos.

PREFACE

If there is anything distinctive in my treatment of jurisprudence from Grotiusto the “left-Kantianism” of Rawls and Habermas, it lies in the four followingpoints:

1) I view the philosophy of law as a final outgrowth of a more generalmoral philosophy, and that moral philosophy (in turn) as an outgrowth of“first philosophy” (metaphysics, epistemology, theology)—so that “legalideas” will not be mere disjecta membra, arbitrarily thrown up, but will in-stead be true elements of a corpus. (Hence in the cases of Hobbes or Leibnizor Kant I begin with what is most general and fundamental, and move toward“philosophy of law” as something more particular, and as generated by thegeneral and fundamental.)

2) Throughout my volume of A Treatise of Legal Philosophy and GeneralJurisprudence I give great prominence to the jurisprudentia of Leibniz (1646–1716)—the greatest German philosopher before Kant. While Leibniz is bestknown as a mathematician (the co-discoverer of calculus), as a mathematicallogician, and as a theologian (the author of Theodicée, theos-dike, “the justiceof God”), he was in fact by profession a “jurisconsult” who served as “inti-mate counsellor of justice” to the King of Prussia in Berlin, the Emperor inVienna, and Peter the Great in Petersburg—after having earned a doctoratein jurisprudence at the age of nineteen. Leibniz combines philosophical andjurisprudential greatness in a way achieved by no other: He “demonstrated”what Grotius had only Platonizingly asserted (etiamsi daremus); he offered themost intelligent criticisms of Hobbes and Locke; he raised the most lingeringdoubts about Pufendorf and Christian Thomasius; he made possible much ofthe later thought of Wolff and Kant. Since Leibniz has never been renderedhis jurisprudential “due” in English, the present volume offers an occasion forthat rectification.

3) Throughout my volume I also give great prominence to the thought ofLeibniz’ friend and correspondent Malebranche (1638–1715)—the greatestFrench philosopher between Descartes and Rousseau. Without Malebranche’snotion that universe is governed by general laws (les lois générales) producedby the “general wills” (les volontés générales) of God, the jurisprudence ofMontesquieu and of Rousseau would not exist—since the philosophical foun-dations of the thought of those later masters were (more than anything else)Malebranchian. And Malebranche’s thought also furnished an occasion forthe great sceptic David Hume.

4) But the scepticism of Hume slightly chastened the Platonic rationalismwhich Kant inherited from Leibniz, and led Kant to say that we merely “take”

XIV TREATISE, 10 - THE PHILOSOPHERS’ PHILOSOPHY OF LAW

ourselves to be “objective ends,” indeed members of a Kingdom of Ends rest-ing on universal and equal respect; and a left-leaning version of Kantian“moral teleology” then led to the early left-Kantianism of the young Marx,and ultimately to the liberal-Kantian jurisprudence of John Rawls and JürgenHabermas—both of whom try to detach Kantian practical conclusions fromtheir “background” in transcendental idealism (in a way somewhat differentlyattempted by Hannah Arendt and Jean-Paul Sartre). Throughout my volumeI give prominence to Kantianism—not just because of its influence on (early)Marx, Rawls and Habermas, but because the central Kantian practical notions(moral egalitarianism, universal republicanism, infinite movement “toward”eternal peace) seem to be the best moral-legal principles for a contemporary,non-theocratic, non-utilitarian world.

Before concluding this Preface, three additional matters need to be brieflycommented on:

(A) Though The Philosophers’ Philosophy of Law begins mainly with the“17th century,” I nonetheless offer a “Prologue on Machiavelli” (died 1527).This is simply because certain later figures are hard to make intelligible with-out a knowledge of “Machiavelism”—above all Hobbes, Leibniz, Rousseau,Hegel, and Nietzsche. (Hegel, for example, takes the view that Machiavelli’shistorical “realism” is the antidote to Platonic transcendental flight to an im-aginary “Beyond.”) Since modern legal philosophy can never be wholly sepa-rated from political thought, a brief chapter on the great Florentine is fullywarranted.

(B) When I use the terms “Platonic demonstration” or “Platonizing dem-onstration” in connection with Leibniz, Malebranche, Kant, and others, Imean not syllogistic logic in the manner of Aristotle’s Posterior Analytics, butsimply Plato’s tendency to say—in Meno, Phaedo, Euthyphro, Republic, andTheaetetus—that problematical and contested moral ideas such as “justice”and “virtue” are conceptually like geometry and mathematics: rational, neces-sary, universal, eternal, God-loved, free of Heraclitean flux (and therefore notmade in time by arbitrary “public decision”; Plato, Theaetetus, 172b). SincePlatonic “geometrizing” rationalism turns up in figures as unlikely asMontesquieu and Hume—in the first case favourably, and in the secondnot—that version of rationalism forms a thread leading from Leibniz andMalebranche to Kant, and gives an ongoing vertebrate structure to a substan-tial part of modern jurisprudence.

And (C) I treat some “philosophers of law” who are not philosophers in abroader sense (concerned with metaphysics, ontology, epistemology), but whocannot be omitted because certain far greater “real” philosophers then be-come intelligible: Leibniz for example, cannot be understood without his op-position to Pufendorf’s “voluntarism,” without his reverence for “the incom-parable Grotius”—thought Pufendorf and Grotius are not “philosophers” ina full, broader sense. Indeed my volume should be seen as a continuum in

XVPREFACE

which some figures are philosophers first and “lawyers” second (Leibniz,Malebranche, Kant, Hegel, Nietzsche) and some others are principally law-yers and only secondarily philosophers (Pufendorf, Grotius, Thomasius,Montesquieu). But an over-strict and over-narrow definition of philosophywould simply exclude too much: Here I follow the wise practice of GuidoFassò, who views “philosophy” in a helpfully latitudinarian way.

I dedicate this volume to my three teachers who taught me most about ju-risprudence as an outgrowth of moral philosophy: Michael Oakeshott, JudithShklar and John Rawls. And I dedicate this book, above all, to the personwho has (for forty years) made all of my intellectual work possible: my wife,Joan Zoccola Riley—the “why and wherefore” of my life.

Patrick Riley

Harvard UniversityDepartment of Government