[Footnote 3: Cf. F. von Bezold, Die Lehre von der Volkssouveränität im
Mittelalter, (Sybel's Historische Zeitschrift, vol. xxxvi., 1876).]
The modern theory of natural law, of which Grotius was the most influential representative, began with Bodin and Althusius. The former conceives the contract by which the state is founded as an act of unconditional submission on the part of the community to the ruler, the latter conceives it merely as the issue of a (revocable) commission: in the view of the one, the sovereignty of the people is entirely alienated, "transferred," in that of the other, administrative authority alone is granted, "conceded," while the sovereign prerogatives remain with the people. Bodin is the founder of the theory of absolutism, to which Grotius and the school of Pufendorf adhere, though in a more moderate form, and which Hobbes develops to the last extreme. Althusius, on the other hand, by his systematic development of the doctrine of social contract and the inalienable sovereignty of the people, became the forerunner of Locke[1] and Rousseau.
[Footnote 1: Ulrich Huber (1674) may be called the first representative of constitutionalism, and so the intermediate link between Althusius and Locke. Cf. Gierke, Althusius, p. 290.]
The first independent political philosopher of the modern period was Nicolo Machiavelli of Florence (1469-1527). Patriotism was the soul of his thinking, questions of practical politics its subject, and historical fact its basis.[1] He is entirely unscholastic and unecclesiastical. The power and independence of the nation are for him of supreme importance, and the greatness and unity of Italy, the goal of his political system. He opposes the Church, the ecclesiastical state, and the papacy as the chief hindrances to the attainment of these ends, and considers the means by which help may be given to the Fatherland. In normal circumstances a republican constitution, under which Sparta, Rome, and Venice have achieved greatness, would be the best. But amid the corruption of the times, the only hope of deliverance is from the absolute rule of a strong prince, one not to be frightened back from severity and force. Should the ruler endeavor to keep within the bounds of morality, he would inevitably be ruined amid the general wickedness. Let him make himself liked, especially make himself feared, by the people; let him be fox and lion together; let him take care, when he must have recourse to bad means for the sake of the Fatherland, that they are justified by the result, and still to preserve the appearance of loyalty and honor when he is forced to act in their despite—for the populace always judges by appearance and by results. The worst thing of all is half-way measures, courses intermediate between good and evil and vacillating between reason and force. Even Moses had to kill the envious refractories, while Savonarola, the unarmed prophet, was destroyed. God is the friend of the strong, energy the chief virtue; and it is well when, as was the case with the ancient Romans, religion is associated with it without paralyzing it. The current view of Christianity as a religion of humility and sloth, which preaches only the courage of endurance and makes its followers indifferent to worldly honor, is unfavorable to the development of political vigor. The Italians have been made irreligious by the Church and the priesthood; the nearer Rome, the less pious the people. When Machiavelli, in his proposals looking toward Lorenzo (II.) dei Medici (died 1519), approves any means for restoring order, it must be remembered that he has an exceptional case in mind, that he does not consider deceit and severity just, but only unavoidable amid the anarchy and corruption of the time. But neither the loftiness of the end by which he is inspired, nor the low condition of moral views in his time, justifies his treatment of the laws as mere means to political ends, and his unscrupulous subordination of morality to calculating prudence. Machiavelli's general view of the world and of life is by no means a comforting one. Men are simple, governed by their passions and by insatiable desires, dissatisfied with what they have, and inclined to evil. They do good only of necessity; it is hunger which makes them industrious and laws that render them good. Everything rapidly degenerates: power produces quiet, quiet, idleness, then disorder, and, finally, ruin, until men learn by misfortune, and so order and power again arise. History is a continual rising and falling, a circle of order and disorder. Governmental forms, even, enjoy no stability; monarchy, when it has run out into tyranny, is followed by aristocracy, which gradually passes over into oligarchy; this in turn is replaced by democracy, until, finally, anarchy becomes unendurable, and a prince again attains power. No state, however, is so powerful as to escape succumbing to a rival before it completes the circuit. Protection against the corruption of the state is possible only through the maintenance of its principles, and its restoration only by a return to the healthy source whence it originated. This is secured either by some external peril compelling to reflection, or internally, by wise thought, by good laws (framed in accordance with the general welfare, and not according to the ambition of a minority), and by the example of good men.
[Footnote 1: In his Essays on the First Decade of Livy (Discorsi), Machiavelli investigates the conditions and the laws of the maintenance of states; while in The Prince (II Principe, 1515), he gives the principles for the restoration of a ruined state. Besides these he wrote a history of Florence, and a work on the art of war, in which he recommended the establishment of national armies.]
In the interval between Machiavelli and the system of natural law of Grotius, the Netherlander (1625: De Jure Belli et Pacis), belong the socialistic ideal state of the Englishman, Thomas More (De Optimo Reipublicae Statu deque Nova Insula Utopia, 1516), the political theory of the Frenchman, Jean Bodin (Six Livres de la République, 1577, Latin 1584; also a philosophico-historical treatise, Methodus ad Facilem Historiarum Cognitionem, and the Colloquium Heptaplomeres, edited by Noack, 1857), and the law of war of the Italian, Albericus Gentilis, at his death professor in Oxford (De Jure Belli, 1588). Common to these three was the advocacy of religious tolerance, from which atheists alone were to be excepted; common, also, their ethical standpoint in opposition to Machiavelli, while they are at one with him in regard to the liberation of political and legal science from theology and the Church. With Gentilis (1551-1611) this separation assigns the first five commandments to divine, and the remainder to human law, the latter being based on the laws of human nature (especially the social impulse). In place of this derivation of law and the state from the nature of man, Jean Bodin (1530-96) insists on an historical interpretation; endeavors, though not always with success, to give sharp definitions of political concepts;[1] rejects composite state forms, and among the three pure forms, monarchy, aristocracy, and democracy, rates (hereditary) monarchy the highest, in which the subjects obey the laws of the monarch, and the latter the laws of God or of nature by respecting the freedom and the property of the citizens. So far, no one has correctly distinguished between forms of the state and modes of administration. Even a democratic state may be governed in a monarchical or aristocratic way. So far, also, there has been a failure to take into account national peculiarities and differences of situation, conditions to which legislation must be adjusted. The people of the temperate zone are inferior to those of the North in physical power and inferior to those of the South in speculative ability, but superior to both in political gifts and in the sense of justice. The nations of the North are guided by force, those of the South by religion, those between the two by reason. Mountaineers love freedom. A fruitful soil enervates men, when less fertile, it renders them temperate and industrious.
[Footnote 1: What is the state? What is sovereignty? The former is defined as the rational and supremely empowered control over a number of families and of whatever is common to them; the latter is absolute and continuous authority over the state, with the right of imposing laws without being bound by them. The prince, to whom the sovereignty has been unconditionally relinquished by the people in the contract of submission, is accountable to God alone.]
Attention has only recently been called (by O. Gierke, in the work already mentioned, Heft vii. of his Untersuchungen zur deutschen Staats- und Rechtsgeschichte, Breslau, 1880) to the Westphalian, Johannes Althusius (Althusen or Althaus) as a legal philosopher worthy of notice. He was born, 1557, in the Grafschaft Witgenstein; was a teacher of law in Herborn and Siegen from 1586, and Syndic in Emden from 1604 to his death in 1638. His chief legal work was the Dicaeologica, 1617 (a recasting of a treatise on Roman law which appeared in 1586), and his chief political work the Politica, 1603 (altered and enlarged 1610, and reprinted, in addition, three times before his death and thrice subsequently). Down to the beginning of the eighteenth century he was esteemed or opposed as chief among the Monarchomachi, so called by the Scotchman, Barclay (De Regno et Regali Potestate, 1600); since that time he has fallen into undeserved oblivion. The sovereign power (majestas) of the people is untransferable and indivisible, the authority vested in the chosen wielder of the administrative power is revocable, and the king is merely the chief functionary; individuals are subjects, it is true, but the community retains its sovereignty and has its rights represented over against the chief magistrate by a college of ephors. If the prince violates the compact, the ephors are authorized and bound to depose the tyrant, and to banish or execute him. There is but one normal state-form; monarchy and polyarchy are mere differences in administrative forms. Mention should finally be made of his valuation of the social groups which mediate between the individual and the state: the body politic is based on the narrower associations of the family, the corporation, the commune, and the province.
While with Bodin the historical, and with Gentilis the a priori method of treatment predominates, Hugo Grotius[1] combines both standpoints. He bases his system on the traditional distinction of two kinds of law. The origin of positive law is historical, by voluntary enactment; natural law is rooted in the nature of man, is eternal, unchangeable, and everywhere the same. He begins by distinguishing with Gentilis the jus humanum from the jus divinum given in the Scriptures. The former determines, on the one hand, the legal relations of individuals, and, on the other, those of whole nations; it is jus personale and jus gentium.[2]
[Footnote 1: Hugo de Groot lived 1583-1645. He was born in Delft, became Fiscal of Holland in 1607, and Syndic of Rotterdam and member of the States General in 1613. A leader of the aristocratic party with Oldenbarneveld, he adhered to the Arminians or Remonstrants, was thrown into prison, freed in 1621 through the address of his wife, and fled to Paris, where he lived till 1631 as a private scholar, and, from 1635, as Swedish ambassador. Here he composed his epoch-making work, De Jure Belli et Pacis, 1625. Previous to this had appeared his treatise, De Veritate Religionis Christianae, 1619, and the Mare Liberum, 1609, the latter a chapter from his maiden work, De Jure Praedae, which was not printed until 1868.]