Rousseau, Pufendorf and the eighteenth-century natural law tradition

History of European Ideas 36 (2010) 280–301

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Rousseau, Pufendorf and the eighteenth-century natural law tradition§ Gabriella Silvestrini Universita` degli Studi del Piemonte Orientale ‘‘Amedeo Avogadro’’, Italy

A R T I C L E I N F O

A B S T R A C T

Article history: Available online 16 March 2010

The relationship between the political theory of Rousseau and modern natural law continues to be the subject of debate, both with regard to Rousseau’s faithfulness to the idea of natural law itself and regarding the precise extent of the debt he owed to his predecessors. In this article the author re-examines this relationship by focusing attention on what has been defined as the protestant tradition of natural law. In particular she concentrates on the political and theoretical exercise that Jean Barbeyrac had sought to perform by constructing a particular version of this tradition, namely that of using the science of natural law to promote a policy of tolerance between protestants and to justify the right of citizens to resist catholic sovereigns who denied them religious freedom, as well as the right of protestant countries to come to the aid of persecuted fellow believers. The thesis asserts that Rousseau was fully aware of this exercise, just as he was aware that some of Barbeyrac’s ideas had been adopted and reworked by another illustrious Genevan, Jean-Jacques Burlamaqui, a member of the Small Council, to support anti-populist and antidemocratic politics in Geneva. Viewed in this way it is possible to perceive in Rousseau’s political thought not so much a ‘‘first crisis’’ of natural law as an intention to reformulate this science from a republican perspective in order to derive rigorous principles of political law from it. And in developing his republican political theory Rousseau took up and overturned the analysis of democratic sovereignty carried out by Pufendorf, who in opposing the ‘‘pro-monarchist’’ excesses of authors such as Hobbes and Horn had unhesitatingly demonstrated the complete validity of democratic sovereignty. ß 2010 Elsevier Ltd. All rights reserved.

Keywords: Protestant natural law Democracy Tolerance Division of sovereignty Right to resistance Barbeyrac Burlamaqui Rousseau Pufendorf

1. Introduction The tightly interwoven relationship between Rousseau’s political theory and the modern school of natural law, in particular Pufendorf’s doctrine, was discerned from the beginning and has been declared many times since.1 Yet, while a review of the sources reveals unanimous agreement in seeing the close comparison that Rousseau makes with the theories of earlier proponents of natural law as decisive, the conclusions drawn from the nature of this comparison and, above all, on its outcomes are highly varied and sometimes even diametrically opposed. On one side there are those who, like Charles E. Vaughan, see Rousseau’s reflections as a coherent and radical refusal of the theory of natural law, or at least

§ I would like to thank Matthew Armistead for his excellent English translation. The article is a revised version of ‘Rousseau, Pufendorf e la tradizione giusnaturalistica settecentesca’, in M. Ferronato (ed.), Dal ‘‘De Jure naturae et gentium’’ di Samuel Pufendorf alla codificazione prussiana del 1794, Padova, Cedam, 2005, pp. 115–185. E-mail address: [email protected]. 1 See for example E. Luzac, Lettre d’un anonyme a` Monsieur Jean-Jacques Rousseau (London, 1766), which, arguing against Rousseau’s attack on Grotius states that he takes up ‘‘l’hypothe`se de Pufendorf sur la formation des Socie´te´s’’ (p. 63), but with the difference ‘‘que la` ou` cet Auteur pose un principe applicable a` toute Socie´te´ civile, le votre ne l’est qu’a` la de´mocratie’’ (p. 61). R. Hubert, Rousseau et l’Encyclope´die (Paris, 1928), 103, had also pointed to Pufendorf as one of Rousseau’s sources.

0191-6599/$ – see front matter ß 2010 Elsevier Ltd. All rights reserved. doi:10.1016/j.histeuroideas.2010.02.003

as an attempt to substitute it with the concept of General Will.2 On the other there are those who, following Franz Haymann and Robert Derathe´, albeit in different ways, underline Rousseau’s faithfulness to the central proposition of natural law, namely the idea of a natural law that is prior to positive law, which they believe prevented him from discerning an early and clear formulation of juridical positivism and made it possible to see him as a precursor to Kant, rather than as a forerunner of Hegel.3 There is also no

2 C. E. Vaughan, ‘Introduction’, in The Political Writings of Jean Jacques Rousseau (1915) (Oxford, 1962), vol. I, 16–7. He has been followed on this point by A. Cobban, Rousseau and the Modern State (London, 1934), 115ff. However, the next edition of Cobban’s work stated that Rousseau ‘‘does not repudiate the idea of a natural law’’ (London: Allen and Unwin, 1964), 76. Leo Strauss also agrees with this position, defining the doctrine of the general will as ‘‘a teaching which can be regarded as the outcome of the attempt to find a "realistic" substitute for the traditional natural law’’, Natural Right and History (1953) (Chicago: University of Chicago Press, 1965), 276. L. G. Crocker, Rousseau’s Social Contract: An Interpretative Essay (Cleveland: Press of Case Western Reserve University, 1968), 91, states that Rousseau makes ‘‘little use’’ of natural law. See also G. Radica, L’Histoire de la raison. Anthropologie, morale et politique chez Rousseau (Paris: Champion, 2008). 3 As argued by S. Goyard-Fabre, ‘Droit naturel’, in Dictionnaire Jean-Jacques Rousseau, ed. Eigeldinger, Trousson (Paris, 1996), 247–9 and Ead., Politique et philosophie dans l’œuvre de Jean-Jacques Rousseau (Paris, 2001), 169–74. See also F. Haymann, ‘La loi naturelle dans la philosophie politique de Rousseau’, in Annales de la Socie´te´ Jean-Jacques Rousseau, XXX (1943–45), 65–109; R. Derathe´, Jean-Jacques Rousseau et la science politique de son temps (Paris, 1950), 151–71.

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shortage of people who would wish to distance themselves from both these positions.4 In connection with the problem of whether to categorise Rousseau’s ideas either as a continuation or as a rejection of the modern tradition of natural law, even the connection that he had with some of the earlier authors’ specific doctrines has been the subject of entirely contradictory assessments. These vary from those who, by degrees, make him out to be a Hobbesian and an anti-Hobbesian, a Lockian and an opponent of Locke, and disciple and critic of such authors as Pufendorf, Barbeyrac and Burlamaqui. In the following pages I would like to return to the subject of the range and nature of the natural law heritage contained in Rousseau’s ideas, by taking one of the essential theses of Robert Derathe´’s book as my starting point. The principal merit of this scholar has been his demonstration of the way that Rousseau’s political thought is comprehensible only if it is considered as a reexamination of the doctrines developed by modern theorists of natural law. Such a re-examination implies an appropriation of the conceptual instruments used by these authors and a simultaneous effort to take a critical distance in relation to their conclusions, regarding which Rousseau had largely provided ‘‘solutions nouvelles’’. According to Derathe´ the originality of Rousseau’s approach was encapsulated in the democratic inspiration of the Social Contract.5 Having recognised both Rousseau’s originality and the debts that he owed to his predecessors, Derathe´ was nevertheless baffled by the intensity of the polemic and even the acrimony which the Genevan revealed when accusing the jurists of having concealed the truth to serve their own interests and of sacrificing the rights of the people in order to serve the interests of the princes. Even more incomprehensible to him was that Rousseau levelled these attacks most directly against Grotius and Barbeyrac (an anti-absolutist author and, according to Derathe´, a sincere liberal) while at the same time recognising the exceptional genius of the monarchist Hobbes and excluding Pufendorf, who was much more of an absolutist than Barbeyrac, from his polemics. Derathe´ believed that the scathing judgement of Barbeyrac in Chapter II, Book II of the Social Contract was particularly ‘‘inexcusable’’. This was the chapter in which Rousseau, arguing against the theory of the parts of sovereignty, affirms that sovereignty is indivisible: It would be difficult to exaggerate how much this lack of precision has clouded the conclusions of writers on matters of political right when they sought to adjudicate the respective rights of kings and peoples by the principles they had established. Anyone can see in chapters three and four of the first Book of Grotius how that learned man and his translator Barbeyrac get entangled and constrained by their sophisms, fearful of saying too much or not saying enough according to their views, and of offending the interests they had to reconcile. Grotius, a refugee in France, discontented with his fatherland, and wanting to pay court to Louis XIII to whom his book is dedicated, spares nothing to despoil peoples of all their rights, 4 For example, for a critique of the positions of both Vaughan and Derathe´, see R. Wokler, ‘Natural law and the meaning of Rousseau’s political thought: a correction to two misrenderings of his doctrine’, in Enlightenment Essays in Memory of Robert Shackleton (Oxford, 1988), 319–35; see also M. Reale, ‘Rousseau fra i giureconsulti romani e i giusnaturalisti moderni’, in La Cultura, XV (1977), n. 2–3, 222–80; Y. Touchefeu, Antiquite´ et christianisme dans la pense´e de Jean-Jacques Rousseau (Oxford, 1999), 485–513; B. Bachofen, La condition de la liberte´. Rousseau critique des raisons politiques (Paris, 2002), 112–25. 5 See R. Derathe´, Jean-Jacques Rousseau, 50. On p. 61 he states that: ‘‘Il n’est parvenu a` e´laborer ses propres principes qu’en argumentant contre les jurisconsultes et les e´crivains de l’e´cole du droit naturel. Sans eˆtre leur disciple, et tout en se donnant pour leur adversaire, il reste, beaucoup plus qu’il ne l’a cru luimeˆme, leur de´biteur’’.

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and to invest kings with them as artfully as possible. This would certainly also have been to the taste of Barbeyrac, who dedicated his translation to King George I of England. But unfortunately the expulsion of James II, which he calls an abdication, forced him to be on his guard, to equivocate, to be evasive, in order not to make a usurper of William. If these two writes had adopted the true principles, all their difficulties would have been solved, and they would always have been consistent, but they would have sadly told the truth and paid court only to the people. Now, truth does not lead to fortune, and the people confer no ambassadorships, professorships or pension.6 Why does this chapter contain such criticism of two authors who, in the Discourse on Inequality appear to be presented in a very different light? In the Dedication to Geneva Grotius’s name appeared alongside that of Tacitus and Plutarch among the books that the father read to ‘‘nourish his soul with the most sublime truths’’,7 just as Barbeyrac’s authority was invoked in a note to the Discourse on Inequality which was added specifically to support the theory of the inalienability of liberty. And why was Pufendorf not mentioned in this context, despite the fact that he had dedicated a chapter of his treatise to the doctrine of the parts of sovereignty and had also been explicitly mentioned, in the same passage of the Second Discourse containing the note on Barbeyrac, as the author who had justified the alienation of liberty?8 In order to answer, at least in part, these questions, I will consider certain explicit judgements made by Rousseau of his predecessors and will attempt to explain them by shedding light on their theoretical significance as well as by demonstrating how they form part of a taxonomy based, in my opinion, on precise criteria. In this way, instead of making an external comparison between the theories in an attempt to resolve the question of Rousseau’s loyalty or lack of loyalty to the idea of natural law, and therefore also the issue of the continuity or the radical break that his thought represented, I intend to carry out a preliminary task, namely that of attempting to rationalise the criteria by which he judged his predecessors and placed his own ideas in relation to them. In other words, instead of asking whether Rousseau belonged wholeheartedly to the modern school of natural law, I believe it is more useful to attempt to understand first of all if and how he believed there to be a ‘tradition’ of natural law, how he conceived and constructed it, where he perceived its continuities and fractures to be and, above all, what position he had intended to assume in relation to it. It seems to me that this type of inquiry allows one to be more precise, compared to what has gone before, about the meaning of the criticism that Rousseau had made of earlier authors, and to understand how and if he thought he was making use of their legacy while simultaneously distancing himself from it. 2. Hobbes, Grotius and Barbeyrac in the Social Contract At first glance the way that Rousseau’s Social Contract mentions Hobbes, Grotius and Barbeyrac is surprising. Grotius and Hobbes 6 The Social Contract, II, II, in Rousseau: ‘The Social Contract’ and Other Later Political Writings, ed. V. Gourevitch (Cambridge: Cambridge University Press, 1997), 59. In the remainder of this article the English reference will be given only in instances of direct quotation, while in every other reference to passages from Rousseau I will refer, unless otherwise stated, to the edition of the Oeuvres comple`tes, 5 vols., ed. B. Gagnebin, M. Raymond (Paris, 1959–1995), using the abbreviation OC. 7 OC, III, 118. 8 ‘‘Je ne´gligerai, si l’on veut, l’autorite´ de Barbeyrac, qui de´clare nettement d’apre`s Locke, que nul ne peut vendre sa liberte´ jusqu’a` se soumettre a` une puissance arbitraire qui le traite a` sa fantaisie: Car, ajoute-t-il, ce seroit vendre sa propre vie, dont on n’est pas le maıˆtre’’, OC, 183. On Rousseau’s critique of Pufendorf in the Second Discourse see B. Kapossy, Iselin contra Rousseau: Sociable Patriotism and the History of Mankind (Basel: Schwabe Verlag, 2006), 211–8.

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are in fact linked together almost from the very beginning of the work (in Book I, Chapter II) and are both stigmatised for having promoted the unlimited power of kings over their people. They are compared to Caligula and ultimately likened to Aristotle for having upheld the idea of a natural inequality among men and the idea of slavery as a natural condition.9 Then, in the remainder of the first book, Grotius’s name appears only as a polemical target for the furious criticism of those who supported the theory of the inalienability of the freedom of individuals and of peoples, while Pufendorf’s name, despite having been cited on this point in the Discourse of Inequality, does not appear at all.10 In Chapter II, Book II, we find the passage cited earlier, where the association of Hobbes with Grotius gives way to that of Grotius with Barbeyrac, both of whom are vehemently attacked for having defended the rights of kings at the expense of the rights of the people. At the end of Book III Grotius’s authority is invoked to argue that even this monarchist author recognised the rights of individuals to reclaim their natural freedom and their property by leaving the country.11 Finally, in the penultimate chapter of the Social Contract, dedicated to civil religion, we encounter a somewhat unexpected eulogy to Hobbes and his theory of the relations between politics and religion ‘‘Of all Christian Authors the philosopher Hobbes is the only one who clearly saw the evil and the remedy, who dared to propose reuniting the two heads of the eagle, and to return everything to political unity, without which no State or Government will ever be well constituted. But he must have seen that the domineering spirit of Christianity was inconsistent with his system, and that the interest of the Priest would always be stronger than that of the State. It is not so much what is horrible and false as what is just and true in his politics that he has made odious’’. As an explanation of this clear reversal of the generally accepted interpretation of Hobbes, Rousseau inserts a cutting remark about Grotius. Citing a letter from Grotius to his brother reproduced by Barbeyrac in his Preface to the Droit de la guerre et de la paix, he invites the reader to observe: ‘‘See among other things, in a Letter of Grotius to his brother of 11 April 1643, what that learned man approves and what he disapproves of in the book De cive. It is true that, being inclined to be indulgent, he seems to forgive the author the good for the sake of the bad; but not everyone is so lenient’’.12 In that letter Grotius had declared his approval of those aspects of the treatise on the citizen that he found were in favour of the kings, but did not approve ‘‘les fondemens sur lesquels l’Auteur e´tablit ses opinions’’, namely the state of nature as a state of war and the religious consequences that he drew from it, which were that it was the duty of every citizen to at least outwardly observe the public faith prescribed by the sovereign.13 Once again, then, Rousseau underlines that the ‘‘bad’’ shared by Grotius and Hobbes is to be found in their shared monarchist positions. His judgement on what he defines as the ‘‘good’’, namely the doctrine of the war of all against all and Hobbes’s Erastian position in religious matters, is less clear since Rousseau had previously had cause to refute Hobbes’s doctrines on both these points. Nonetheless, despite having condemned ‘‘The horrible system of Hobbes’’ and the senseless system of natural war of all against all 9 OC, III, 352–3. Rousseau is probably referring to H. Grotius, Le droit de la guerre et de la paix, nouvelle traduction par Jean Barbeyrac (Amsterdam, 1724), I, III, § VIII, 4: ‘‘Ajoutez a` cela, que, comme il y a des Hommes qui, selon Aristote, sont naturellement esclaves, c’est-a`-dire propres a` l’Esclavage: il y a aussi des Peuples d’un tel naturel, qu’ils savent mieux obeir que commander’’. The remainder of the text will always refer to this edition of the anastatic reproduction of the Centre de Philosophie politique et juridique (Caen, 1984), using the abbreviation DGP. 10 OC, III, 183. 11 OC, III, 436. 12 The Social Contract, in Rousseau: ‘The Social Contract’ and Other Later Political Writings, 146; OC, III, 463. 13 DGP, Pre´face du traducteur, XXXII.

caused by the fervour to establish despotism and passive obedience,14 Rousseau had mitigated his judgement on this aspect of Hobbes’s doctrine which, with the right alterations, could have been contained within his own theory: ‘‘Hobbes’ error is therefore not to have established the state of war among men who are independent and have become sociable but to have assumed this state to be natural to the species, and to have given it as the cause of the vices of which it is the effect’’.15 From this point of view, then, the ‘‘good’’ of Hobbes’s theory was the radical critique of the principle of natural sociability that Grotius had instead argued for and which Rousseau had clearly rejected in the Discourse on Inequality. Vice versa, the eulogising of Hobbes as the only Christian author who had really dared to reunite the ‘‘two heads of the eagle’’ is exaggerated to say the least and seems to be particularly unfair towards Grotius, who had not only attributed the ius circa sacra to the civil magistrate, but had done so while also arguing for the right of conscience and for tolerance between different faiths.16 Nor should it be forgotten that in the Letter to Voltaire the assertion of the full right of conscience had been presented in direct opposition to what ‘‘the Sophist Hobbes’’ had argued, and that in the Geneva Manuscript the intolerant had been defined as ‘‘a man of Hobbes’’, and intolerance as the war of all against all.17 It is therefore astonishing that at the end of the Social Contract Rousseau finished by discarding his criticisms of Hobbes on this point and presented him as the true champion of that which, in the Letters Written from the Mountain, he would define as one of the fundamental principles of Protestantism, namely the reunion of Church and State and the conferral of legislative power in religious matters to the sovereign.18 How, therefore, can we explain this eulogising of Hobbes at Grotius’s expense at the end of the Social Contract, which seems to overturn the equal standing held by the two authors at the beginning of the work? This association was certainly not haphazard or isolated, since it also appeared at the beginning of the summary of the Social Contract contained in book V of Emile: ‘‘When I hear Grotius praised to the skies and Hobbes covered with execration I see how far sensible men read or understand these two authors. The truth is that their principles are exactly the same: they only differ in their expression. They also differ in their method. Hobbes relies on sophisms, and Grotius on the poets; all the rest is the same’’.19 Moreover it is odd that the expression ‘‘read or understand’’ recalls a passage of the Preface written to the ‘‘benevolent reader’’ of the De jure naturae et gentium, which Barbeyrac had not translated. In this passage Pufendorf gave his judgement of Hobbes within the context of a brief outline of the discipline of natural law, which he had been called to teach at the Heidelberg Academy in what was the first university professorship in the subject. The passage praised Hobbes for the depth of his ideas and, while admitting that he had strayed from the truth in some instances, particularly with his dreadful religious principles, Pufendorf had insinuated that

14 The State of War, in Rousseau:’The Social Contract’ and Other Later Political Writings, ed. V. Gourevitch (Cambridge: Cambridge University Press, 1997), 163; OC, III, 610–1. 15 Geneva Manuscript, in Rousseau: ‘The Social Contract’ and Other Later Political Writings, 159; OC, III, 288. 16 On Grotius’s concept of the ius circa sacra and of tolerance see J. Lagre´e, La raison ardente. Religion naturelle et raison au XVIIe sie`cle (Paris, 1991), particularly, 228ff.; R. Tuck, Philosophy and Government 1572–1651 (Cambridge, 1993), 179ff.; J. SaadaGendron, ‘Hugo Grotius et le jus circa sacra’, in N. Pique´ and G. Waterlot, Tole´rance et Re´forme. E´lements pour une ge´ne´alogie du concept de tole´rance (Paris, 1999), 99–132; and L. Nocentini, All’origine del discorso politico moderno. Ugo Grozio teologo e politico (Pisa: Pisa University Press, 2005). 17 OC, IV, 1072 and OC, III, 341. 18 OC, III, 772. 19 Emile, in Rousseau, Political Writings, vol. II, ed. and trans. C. E. Vaughan (Cambridge: Cambridge University Press, 1915), 147; OC, IV, 836.

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his more active critics were in fact those who ‘‘had read and understood it the least’’.20 The resonance between Pufendorf’s words and those of Rousseau’s Emile does not seem accidental and suggests that the duet between Hobbes and Grotius staged by Rousseau in the Social Contract—first linking them together only to later to set them apart—is not a response to the simple rhetorical need of filling the text with stinging invectives to hold the interest of the reader, and is even less a reflection of the black and persecutory humour that Jean-Jacques poured into his writing. In light of this reference to those who exalted Grotius and abhorred Hobbes, Reausseau’s excessive praise of Hobbes at the expense of his counterpoint Grotius appears to have been used as a polemical tactic with a specific objective and was based on the full knowledge of the different assessment that Grotius, Pufendorf and Barbeyrac had made of Hobbes’s thought rather than being a general provocative position taken against Hobbes’s bad reputation. What had in fact prompted Barbeyrac to cite Grotius’s comments regarding De cive in his Preface was the need to prove that the Dutch jurist’s doctrines were of no use to the supporters of tyranny and ‘‘que l’ide´e qu’il avoit du Pouvoir des Souverains, et de l’obligation des Sujets, e´toit fort au dessous de cette Autorite´ Despotique et illimite´e que les Flatteurs des Princes leur attribuent’’.21 Furthermore, when comparing Grotius and Hobbes, he did not fail to recognise the merits of the latter, in particular the meditative genius that was capable of bringing to light ‘‘very useful’’ truths that no one else had seen, but he also compared this ability to one which can sometimes be found in poisonous animals or plants. Moreover, Barbeyrac’s setting of Grotius against Hobbes was more than occasional. On the contrary, it was a central element of the operation carried out in the translations of Pufendorf and Grotius, namely that of creating a tradition of natural law perceived as a study of moral philosophy, a tradition that in fact orbited around Grotius and Pufendorf and maintained a clear distance from such authors as Machiavelli, Hobbes and Spinoza. So from this point of view it seems legitimate to ask whether Rousseau utilised the comparison between Hobbes and Grotius to discredit Grotius and, in doing so, to attack not only Barbeyrac’s interpretation and application of these two authors’ ideas but also the entire construct of the tradition of natural law that derived from it and, above all, the political use that was made of it.22 In fact, if we return to the passage cited above we can see how Rousseau reproves Grotius and Barbeyrac for having lacked precision and having drawn indistinct conclusions about ‘‘political 20 S. Pufendorf, De jure naturae et gentium, in Gesammelte Werke, vol. IV, 1, ed. F. Bo¨hling, Berlin (Akademie Verlag, 1998), 8: ‘‘Sic et Thomas Hobbes in operibus suis ad civilem scientiam spectantibus plurima habet quantiviis pretii; et nemo, cui rerum ejusmodi est intellectus, negaverit, tam profunde ipsum societatis humanae et civilis compagem rimatum fuisse, ut pauci priorum cm ipso heic comparari queant. Et qua a` vero aberrat, occasionem tamen ad talia meditanda suggerit, quae fortasse alias nemini in mentem venissent. Sed quod et hic in religione peculiaria sibi et horrida dogmata finxerit hoc ipso apud multos non citra rationem sui aversationem excitavit. Quanquam et illud non raro contingere videmus, ut ab illis maximo cum supercilio condamnetur, abs quibus minime lectus fuit, aut intellectus’’. It is this agreement with Pufendorf’s assessment of Hobbes, which did not appear in Barbeyrac’s translation, that supports the theory that Rousseau read the Latin editions of both Pufendorf and Grotius, comparing the originals with Barbeyrac’s translations. 21 DGP, Pre´face du Traducteur, XXXI–XXXII. 22 R. Tuck, Natural Right Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979), 175, has stated that Rousseau had substantially accepted Barbeyrac’s outline of the history of natural law and intended to reject the entire tradition by criticising Grotius, from whom it had derived. However, Tuck did not place Barbeyrac’s explanation into context, and merely took up certain essential elements against Kant, particularly the idea of Grotius’s central role. See R. Tuck, Philosophy and Government cit., xv. If, rather than accepting Barbeyrac’s manoeuvre, one tries to understand its political and theoretical significance, it becomes possible to show that Rousseau was aware of Barbeyrac’s intentions and intended to criticise them.

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right’’ from their principles just when they needed to judge the ‘‘respective rights of kings and peoples’’, thus contradicting themselves and being confused, ‘‘fearful of saying too much or not saying enough according to their views, and of offending the interests they had to reconcile’’. Perhaps it would be stretching things to imagine that Rousseau was familiar with Grotius’s early works and rebuked him for having opportunistically abandoned his Republican principles and for choosing instead to defend the rights of kings in order to ingratiate himself with Louis XIII to whom he looked for protection, even though this change did not go unnoticed in the eighteenth century, having been mentioned favourably by Pierre Bayle.23 But certainly, by pointing out the contradiction between the monarchist attitude expressed in the dedication to George I and the approval he bestowed on the Glorious Revolution, an accusation of opportunism can be made towards Barbeyrac and the political and theoretical position that he claimed to want to support in the dedication to the British king: ‘‘je ne me propose ici, que de joindre ma foible voix au concert public de tous ceux qui ont a` coeur la liberte´ de l’Angleterre, et l’inte´reˆt commun des Protestants’’.24 The link made between the English defence of liberty and that of the Protestant cause might appear to be a widely held and almost obvious position in the antiCatholic pamphlets and books that on both sides of the Channel had reacted to the different outcomes of the political clash between Catholicism and reform. But what this ‘‘liberte´ de l’Angleterre’’ and, even more so, ‘‘l’inte´reˆt commun des Protestants’’ actually were was certainly not obvious nor was it a foregone conclusion in the religious and political landscape of the early eighteenth century. On the contrary, what Barbeyrac had intended to produce concretely by his indefatigable work as a writer, journalist and translator was a certain version of that liberty and of those interests.25

3. Barbeyrac between Grotius and Pufendorf: natural law, tolerance and the right to resist Compared to the great classical theorists of natural law, Barbeyrac has been considered a second-grade thinker of scant originality and has only recently been the subject of serious study. This is despite the fact that for some time he has been recognised not only as a prominent figure in the second generation of the Refuge, which was faced with the problem of assimilation once the hope of a return to France was dashed, but also as an author who was decisive in outlining the main features of natural law, which spread in the first half of the seventeenth century and became one of the most important cultural backgrounds to the Enlightenment, 23 Avis important aux Re´fugiez (Amsterdam, 1690), 216: after having observed that Calvinists and Presbyterians, unlike other Protestants are ‘‘idolators’’ of popular sovereignty, Bayle underlines how Grotius’s arrival in France and his abandonment of Calvinism drove him to assume a ‘‘reasonable’’ position towards the right of resistance. With regards to the events that led Grotius from the Republican positions of his early works to the monarchist ones of the French period see R. Tuck, 154ff. 24 DGP, Epitre, 3 not numbered. 25 On the decidedly wide spectrum of political positions held by Protestant authors of the Refuge period, see G. H. Dodge, The Political Theory of the Huguenots of the Dispersion (New York, 1947); M. Yardeni, ‘French Calvinist Political Thought, 1534–715’, in International Calvinism 1541–1715, ed. M. Prestwich (Oxford, 1985), 315–37; E. Labrousse, ‘Les ide´es politiques du Refuge: Bayle et Jurieu’, in Conscience et conviction: Etudes sur le XVIIe sie`cle (Paris/Oxford, 1996), 159–91; L. Simonutti, ‘Between Political Loyalty and Religious Liberty: Political Theory and Toleration in Huguenot Thought in the Epoch of Bayle’, in History of Political Thought, XVII (1996), n. 4, 523–54; M. C. Pitassi, ‘Re´fuge e esprit re´publicain: qualche traccia di lettura’, in Ideali repubblicani in eta` moderna, ed. F. De Michelis Pintacuda, G. Francioni (Pisa: ETS, 2002), 177–92. On the different assessments of the Glorious Revolution and the English constitution within the Refuge see E. Tillet, La constitution anglaise, un mode`le politique et institutionnel dans la France des Lumie`res (Aix-Marseille, 2001), 31–64, 237.

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particularly the French Enlightenment. For this particular reason his work offers a glimpse into one of the decisive points of contact between Protestantism and the Enlightenment.26 A French Huguenot from the Diaspora, Barbeyrac was an exile first in Lausanne, then Berlin, then again in Lausanne and finally in Groningen and was permanently accompanied by the whiff of heresy and in constant conflict with the reformist orthodoxies. After having been the victim of the intolerance of the Catholic French monarchy, he appears to have pursued a wide-ranging political and cultural project: that of contributing to building real unity in the Protestant world and to giving it a clear identity, one which we could define—using an anachronistic term—as the face of eighteenth-century European liberal Protestantism.27 His translations and commentaries bind together intellectual, religious, political and existential events and movements that had crossed paths several times before: the French Calvinists of the Refuge and the English exiles; Lutheranism, Dutch Arminianism, English latitudinism and Enlightened Swiss Calvinism; Dutch republicanism, the Glorious Revolution and the revocation of the Edict of Nantes. Barbeyrac attempted to confer a unified identity on this mishmash of interrelated movements by placing it in the philosophical framework of natural law—understood as a science of morality—born under the auspices of Protestantism and with Grotius, who had laid its foundations, and Pufendorf, whose rigorous deductive method had completed it, as its founding fathers.28

26 So far there has only been one monograph dedicated completely to Barbeyrac, namely P. Meylan, Jean Barbeyrac et les de´buts de l’enseignement du droit dans l’ancienne acade´mie de Lausanne (Lausanne, 1937); S. Othmer’s study, Berlin und die Verbritung des Naturrechts in Europa (Berlin, 1970), 61ff., concentrates on Barbeyrac’s Berlin period and above all on the accusation of heresy that he received from Concistoro, which stopped him from becoming a pastor. On the end of the Berlin period, see F. Palladini, ‘Farewell to Berlin: Two newly discovered letters by Jean Barbeyrac (1674–1744)’, in History of European Ideas, XXXIII (2007), 305–20. G. M. Labriola, Barbeyrac interprete di Pufendorf e Grozio: dalla teoria della sovranita` alla teoria della resistenza (Napoli: Editoriale Scientifica, 2003) is a monograph dedicated to the study of the political thought of Barbeyrac the translator of Pufendorf and Grotius; on the political function of the translation see also D. Saunders, ‘The Natural Jurisprudence of Jean Barbeyrac: Translation as an Art of Political Adjustement’, Eighteenth Century Studies, XXXVI (2003), n. 4, 473–90, and E´. Tillet, ‘La contribution de Jean Barbeyrac a` la naissance d’un langage constitutionnel nouveau’, in Gene`ve et la Suisse dans la pense´e politique, Actes du Colloque de Gene`ve (September 2006) (Aix-en-Provence: Presses Universitaires d’Aix-Marseille, 2007), 373–96. Amongst those who have underlined his importance as a mediator between Protestantism and Enlightenment, see S. Zurbuchen, Naturrecht und natu¨rliche Religion. Zur Geschichte des Toleranzproblems von Samuel Pufendorf bis Jean-Jacques Rousseau (Wu¨rzburg, 1991); T. J. Hochstrasser, ‘The Claims of Conscience: Natural Law Theory, Obligation and Resistance in the Huguenot Diaspora’, in New Essays on the Political Thought of the Huguenots of the Refuge, ed. J. C. Laursen (Leiden/New York/Ko¨ln, 1995), 15–51; F. Lomonaco, ‘Liberta` di coscienza, storia e tolleranza civile in Jean Barbeyrac’, in F. Lomonaco, Tolleranza e liberta` di coscienza: filosofia, diritto e storia tra Leida e Napoli nel secolo 18 (Naples, 1999), 67– 123. Concerning Barbeyrac’s position in the close-knit network of intellectual relations attached to the cultural project of the Dutch press, see A. Rotondo`, ‘Stampa periodica olandese e opinione pubblica europea nel Settecento: la ‘‘Bibliothe`que raisonne´e’’ (1728–1753)’, Rivista storica italiana, CX (1998), n. 1, 166–221. On Barbeyrac in particular see p. 214 onwards. 27 They have, for example, placed Barbeyrac in the current of ‘‘liberal Protestantism’’. Meylan, Jean Barbeyrac, 57; S. Zurbuchen’s, Naturrecht und natu¨rliche Religion, in the chapter entitled ‘Der liberale Protestantismus’, 143ff. and G. Cheymol, ‘La notion de tole´rance en Europe a` l’aube des lumie`res (1670– 1734)’, The`se, Universite´ de Provence-Centre d’Aix, 6 vols. (1980), 935ff. 28 Le droit de la nature et des gens, translated by Jean Barbeyrac (Basle, 1732), anastatic reprint (Caen: Centre de philosophie politique et juridique, 1989), ‘Pre´face du Traducteur’, CXV–CXVIII. For ease of use in the remainder of this text I will cite this edition using the abbreviation DNG, except where I make distinct references to significant differences between the editions of 1706, 1712, 1734 and 1740. The edition of the DNG used by Rousseau was the 1750 edition. Furthermore, in the Jugement d’un Anonyme, Barbeyrac affirms that Grotius ‘‘est le premier qui ait re´duit en Systeˆme une Science qui avant lui n’e´toit que confusion, et souvent que te´ne´bres impe´netrables’’, in E´crits de droit et de morale (Paris: S. Goyard-Fabre, 1996), 200.

It is precisely this fusion of Protestantism and natural law, seen as the most authentic fruit of the Reformed religion, which is the distinct and characteristic trait of Barbeyrac’s work. It is a fusion that confirms not only his fundamental laicism but also his declared anti-ecclesiastical character, which were without doubt echoes of the personal experiences that had so quickly exposed him to the intolerance of Reformed ecclesiastical circles.29 Thus, if from the first lines of the Preface to Pufendorf the system of natural law is presented as the real science of morality, this science is in turn placed under the aegis of religion, as it is ‘‘religion that teaches morality’’. Nevertheless the religion that Barbeyrac describes is not the religion taught by the churches, priests or theologians, but it is the natural religion taught by philosophers and of legislators raised with the ideas of philosophers. In fact, in reconstructing his history of morality and taking up and developing the arguments of the rationaux theologians against the Baylian view of paganism, Barbeyrac does not fail to agree with Bayle on the point that in paganism the official and public religion contained superstitious practices which were contrary to reason, but nevertheless demonstrates how even ancient societies understood the fundamental dogmas of natural religion, namely those of divine providence and the system of future punishments and rewards.30 These dogmas, taught by the reason of the philosophers—Socrates, Plato, Aristotle and above all the ancient Stoics— had been transposed by legislators into law, and thus Barbeyrac saw philosophy and politics as teachers of religion and virtue. Certainly, in ancient societies knowledge and practice of natural religion were limited, since even the philosophers who had supported it were influenced by the prejudices of their time and so failed to recognise the fundamental idea of natural equality among men and instead, like Aristotle, believed in the natural existence of slaves and in the inferiority of barbarian people. What is more, despite recognising a principle of justice that was superior to positive laws, they did not make this higher principle a criterion of judgement that could legitimise the disobedience of unjust laws. And while ancient societies were based on the alliance between natural religion, morality and politics, there were those who spoke up to deny the value of justice and reduced it to a simple utility, namely the Cyrenians, an ancient equivalent of modern libertines, and the Sceptics, who completely overturned the foundation of religion and morality.31 29 On the strong anti-ecclesiastical overtone of Barbeyrac’s doctrine, see J. van Eijnatten, ‘Swiss Anti-clericalism in the United Provinces. Jean Barbeyrac’s Oratio De Magistratu, Forte paccante, e pulpitis sacris non traducendo (1721)’, in La formazione storica della alterita`. Studi di storia della tolleranza nell’eta` moderna offerti a Antonio Rotondo`, put forward by Henry Me´choulan, Richard H. Popkin, Giuseppe Ricuperati, Luisa Simonutti, 3 vols. (Florence, 2001), vol. III, 861–86. On the knowledge of natural law as a modern phenomenon on the part of protestant authors, see K. Haakonssen, ‘German Natural Law’, in The Cambridge History of Eighteenth Century Political Thought, ed. M. Goldie, R. Wokler (Cambridge: Cambridge University Press, 2006), 251, and ‘Protestant Natural Law Theory. A General Interpretation’, in N. Brender, L. Krasnoff (eds.), New Essays on the History of Autonomy. A Collection Honouring J. B. Schneewind (Cambridge: Cambridge University Press, 2004), 92–109. 30 On the reaction of the Refuge intellectuals to Bayle’s theories, see P. Re´tat, Le Dictionnaire de Bayle et la lutte philosophique au XVIIIe sie`cle (Paris, 1971), 15–43, and more recently, S. Brogi, Teologia senza veirta`. Bayle contro i ‘‘rationaux’’ (Milan, 1998). 31 DNG, Pre´face du traducteur, LXXV–CXIV. It would be interesting to compare Barbeyrac’s history of morality with earlier ones, beginning with the reconstruction carried out by Pufendorf himself, with which Barbeyrac’s had much in common, including the need to defend natural law from the accusations of irreligion by distancing it from the Sceptics, Machiavelli and Hobbes, and instead bringing it closer to ancient and modern theories which were not considered unorthodox, such as those of Cumberland and Stoicism. On all of this I would refer the reader to the discussion by F. Palladini, Samuel Pufendorf discepolo di Hobbes. Per una reinterpretazione del giusnaturalismo moderno (Bologna: il Mulino, 1990), 175–88. The same author has also underlined the importance of the ‘‘Barbeyrac factor’’ for the eighteenth-century reception of Pufendorf, 273–80. For an analysis of the histories of natural law in Germany see T. J. Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge, 2000), 1–71.

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Thus Christianity came to be seen as the revealed religion that had at last completed and perfected man’s previously imperfect knowledge of natural religion. In particular, evangelical morality universalised the idea of equality, extending it to all men and had thus made it possible to fully recognise one of the fundamental principles of natural law, that of sociability. At the same time Barbeyrac was busy demonstrating, in opposition to Bayle’s ‘‘outre´e’’ vision of Christianity, how this agreed perfectly with the other principle of natural law, the just ‘‘de´fense de soi-meˆme’’, and with all the social virtues—the arts and sciences, commerce, lending at interest, speculation itself32—and projected an image of a rigid and, in the final analysis, antisocial and largely inhumane morality onto the vision put forward by the Church fathers. Thus from its origins the perfecting of natural morality realised by Christianity appears to have been marked by a double betrayal. In the first instance this was a theoretical betrayal, carried out at the dogmatic and theological level by the fathers of the Church, who altered the purity of Christian religion and ethics. Secondly, there was a betrayal that was at once practical, moral and political, perpetrated by the episcopate and above all the Vicar of Rome, who had used their power to introduce something entirely new and unheard of: the subordination of politics to religion and to the morality taught by priests, which coincided not only with the corruption of behaviour and tradition, but also with tyranny and intolerance.33 In the unhappy period of the Dark Ages the minimum level of moral behaviour among the people was guaranteed by the underground and residual survival of natural and Christian morality right until the time of the Reformation which, refuting the authority of tradition and of the Church of Rome, initiated a return to worthy principles and re-established the purity of natural morality and evangelical religion. Nevertheless, even then a new betrayal occurred and the reformers ended up succumbing to the temptations of Papism: instead of becoming the teachers of morality, they became champions of cruelty and intolerance. Thus the most valuable effects of the Reformation should not be sought among the reformists or the theologians, but among the lay philosophers and the professors of law. It was in fact Grotius and Pufendorf who laid the foundations of natural law as a moral science by continuing the work begun by ancient philosophers and legislators. What must therefore be underlined is that Barbeyrac was not fighting on two fronts but on three: not only against Catholicism on one side and Bayle on the other, but also against the Reformed orthodoxies, which had deliberately used Bayle in order to attack the positions held by the Protestant ratiunaux.34 And in fighting on these three fronts the continuity and the legitimacy of the tradition of natural law were pursued along a series of related moves. The first was to remove any reference to Thomism and the school of Salamanca (which had been an important source even for Grotius) from the 32 This attempt to provide unity that runs through Barbeyrac’s different works can be traced in this desire to defend a certain vision of Christianity and to demonstrate its compatibility with the principles of natural law. This flows from the Traite´ du jeu (Amsterdam, 1709) through the Discours sur l’utilite´ des lettres et des sciences par rapport au bien de l’Etat (Geneva, 1714) to the ‘Discours du Traducteur sur la nature du Sort’, in Du pouvoir des souverains et de la liberte´ de conscience. En deux discours, traduits du latin de Mr. Noodt, Professeur en Droit dans l’Universite´ de Leide par Jean Barbeyrac (Amsterdam, 1714), 82–207 and the Traite´ de la morale des Peres de l’Eglise (Amsterdam, 1728). 33 DNG, Pre´face du traducteur, § IX–X, XI–LXVI. On this point see also DGP, Pre´face du traducteur, III. 34 Re´tat (p. 41) and Zurbuchen (p. 144) have both talked about how Barbeyrac fought on two fronts.

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reconstruction of natural law, thus ensuring its ‘Protestant’ purity.35 The second was to move natural law away from those authors whose doctrines could attract to it the accusation of irreligion, such as Hobbes and Spinoza. The third was to place natural law firmly under the aegis of religion: a lay religion and the natural religion that coincided with Christianity and the authentic teaching of the Reformation and was founded on a cardinal precept, tolerance and freedom of conscience. For these purposes Barbeyrac had to correct and integrate many points relating to the ideas of the two authors that he placed at the origin of modern natural law, beginning first of all with the question of moral obligation, which is, in the final analysis, the very foundation of natural law, and which in turn is connected to its aim, its expansion and its articulation. In this way he applied Pufendorf’s doctrine to neutralise the dangerous use that Bayle had made of Grotius’s intellectualism36 and founded moral obligation on divine will in order to guard against the possibility of justifying the morality of an atheist and thereby envisaging a natural law independent of religion. Furthermore, while recognising, with Leibniz, that the rational moral laws conform with the nature of things, he did not fail to highlight this philosopher’s dangerous affinity with Bayle, who had in turn accused the author of the Devoirs de l’homme et du citoyen of having moved too close to the ideas of Hobbes. Without entering into the merits of a debate that has been analysed many times before,37 it is nevertheless important to underline how this conception of moral obligation prompted Barbeyrac to detail the aims and the reach of natural law, correcting the uncertainties found in Pufendorf’s doctrine. Thus, if Pufendorf had identified two principles of natural right—self-preservation and natural liberty—to which the natural law of sociability was added, the systematization carried out by Barbeyrac, which called for the inclusion of natural religion within natural law, constitutes a significant correction of Pufendorf’s doctrine. In fact there are now three principles of natural law: religion, well-intentioned self-love 35 For example scholastic philosophy is dismissed in a few lines as barbaric and harmful to religion and morality, Pre´face du Traducteur, CXV. On the construction of this censorship by Pufendorf see the assertions of K. Haakonssen, ‘From natural law to the rights of man: a European perspective on American debates’, in M. J. Lacey, K. Haakonssen, A culture of rights. The Bill of rights in philosophy, politics, and law 1791 and 1991 (Cambridge: Woodrow Wilson International Center for Scholars/Cambridge University Press, 1992), 24: ‘‘Pufendorf, writing in the 1670s and 1680s, created the idea that he was continuing a natural-law theory begun by Grotius in the Iure belli ac pacis in 1625, and this led to the myth of a coherent natural-law tradition within Protestantism, stretching from Grotius to the late eighteenth century. We can only understand the full significance of this myth, which still persists, if we appreciate the fundamental division which it was meant to obscure’’. 36 On this see E. Labrousse, Pierre Bayle. He´te´rodoxie et rigorisme (1964) (Paris, 1996), 260–3. 37 On Leibniz’ polemic with Pufendorf see N. Bobbio, ‘Leibniz e Pufendorf’, in Da Hobbes a Marx. Saggi di storia della filosofia (Naples, 1965), 129–45, who tends to dilute the differences between Pufendorf and Barbeyrac’s position and argues that Pufendorf’s theories should be considered as an attempt to reconcile the positions of voluntarists and intellectualists. The goal that supposedly motivated both these authors, in contrast to Leibniz, is that of finding a separation between law and theology. From a similar perspective see R. Se`ve, Leibniz et l’Ecole moderne du droit naturel (Paris, 1989), who underlined the fact that, beyond the differences in the doctrine of obligation, the theories of the two authors of modern natural law remain within a range of though that cannot be defined as secularised, but only made independent from revealed religion. The same type of interpretation regarding Pufendorf’s distinction between moral theology and natural law in terms of ‘‘Entkonfessionalisierung’’ is provided by Zurbuchen, 38; see also F. Todescan, Le radici teologiche del giusnaturalismo laico. III. Il problema della secolarizzazione nel pensiero giuridico di S. Pufendorf (Milan, 2001), 63–94; Hochstrasser, Natural Law Theories, 72–110; and I. Hunter, Rival Enlightenments (Cambridge, 2001). For an explanation of Barbeyrac’s argument with Leibniz, republished in E´crits de droit et de morale, 195–234, see J. B. Schneewind, The Invention of Autonomy. A History of Modern Moral Philosophy (Cambridge, 1998), 250–9. On the separation of morality and politics see P. Korkman, ‘Civil Sovereigns and the King of Kings: Barbeyrac on the Creator’s Right to Rule’, in Natural Law and Civil Sovereignty. Moral Right and State Authority in Early Modern Political Thought, ed. I. Hunter, D. Saunders (London, 2002), 109–22.

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(or amour-propre), and sociability, and the same number of natural laws correspond to these principles, outlining a hierarchical system of duties: duties towards God, towards oneself and towards others.38 In turn the distinction between the internal and external is shifted, as it no longer coincides with the distinction between moral theology and natural law, but instead with that between natural law and positive law. In such a way, precisely by virtue of the hierarchy of duties, religion is fundamental not only to morality and natural law, but also to politics and positive law, which are seen as nothing more than extensions to natural law. The most striking consequence of these transformations is that they provide a precise interpretation of modern natural law, seeing it as a higher criterion of justice which can legitimise disobedience when civil laws and positive law demand something unjust, as emerges undeniably from the Discours sur la permission des loix: Car enfin, du moment que les Loix les plus authentiques des Souverains les plus le´gitimes se trouvent en opposition, de quelque manie´re que ce soit, avec ces Loix immuables, e´crites dans noˆtre cœur; il n’y a point a` balancer, il faut meˆme, quoi ˆ te, de´sobe´ı¨r aux pre´mie´res, pour ne donner aucune qu’il en cou atteinte aux dernie´res.39 In this way Barbeyrac unmistakably gives the modern tradition of natural law an anti-tyrannical bent, perceiving that the inalienability of the right to life, which was also sustained by Hobbes, and the claims to the rights of conscience recognised by Grotius and Pufendorf, imply a clear limit to the need to subject oneself to the authority of civil government.40 Nonetheless, the way he achieves this is not without ambiguity, and it is no accident that his ideas have seen him interpreted in several different ways— as a follower of Locke and champion of liberalism, or as a conservative who belongs fully to the absolutist tradition.41 I believe that a first reading of his works reveals a dual tendency in his ideas, both as they develop in the course of time and in the wake of the discussions and cultural projects that he was involved in. On the one hand, on the religious side, it seems to me that it is possible to observe the development of a more profound and extensive idea of tolerance and freedom of conscience. On the other, in political matters, one can make out an attempt to tone down the explosive effects of the declared subordination of positive law to natural law, by blunting and diluting the idea of a right to resistance and trying to formulate a ‘‘moderate’’ political theory in order to find a happy medium between the defence of the rights of kings and those of the people. In the preface to the translation of the two discourses by Noodt on sovereign power and freedom of conscience, written in 1707 and republished in 1731, the connection between the claim of liberty of 38

DNG, II, III, § XV, note 5 (already present in the 1706 edition). E´crits de droit et de morale, 139. 40 See for example DGP, Pre´face du Traducteur, XXXVII: my authors, Barbeyrac states, in so far as they look favourably on the kings, ‘‘poussent pas assez loin l’Obe´ı¨ssance passiveı´’’, but limit themselves ‘‘d’exhorter les Peuples meˆmes a` ne rien entreprendre d’un commun accord contre leur Souverain, qu’apre`s qu’il a pousse´ a` bout leur patience, par une violation manifeste des Loix Fondamentales de l’Etat auxquelles il a promis de se conformer’’. 41 Maurizio Bazzoli, Il pensiero politico dell’assolutismo illuminato (Florence, 1986), 188–97, has affirmed the complete compatibility of Barbeyrac’s thought with the categories of Enlightened absolutism, in fact qualifying him as anti-despotic and not anti-absolutist, and thus distancing him from the liberal and Lockian readings of Barbeyrac as given by R. Derathe´, J. Ehrard e I. Fetscher, with whom more recently others have agreed, for example S. Goyard-Fabre, ‘Barbeyrac et la the´orie du droit naturel’, in J. Barbeyrac, E´crits de droit et de morale, 66, and A. Dufour, ‘L’ambivalence politique de la figure du contrat social’, in Gesellschaftliche Freiheit und vertragliche Bindung in Rechtsgeschichte und Philosophie, ed. J.-F. Kerve´gan, H. Mohnhaupt (Frankfurt, 1999), 52. Like Bazzoli, T. J. Hochstrasser instead underlines the political conservatism that accompanies the call for freedom of conscience in his ‘Conscience and Reason: the Natural Law Theory of Jean Barbeyrac’, in The Historical Journal, XXXVI (1993), n. 2, 289–308. 39

conscience and the denunciation of despotism is clearly expressed. This almost seems like a deliberate distancing from Bayle and Jurieu’s opposite positions, the canonization of a Huguenot ‘‘third way’’ which was as far from the defence of a freedom of conscience protected by the shadow of the absolute power of kings as it was from the anti-absolutist or even ‘‘republican’’ intolerance of Jurieu: Le Peuple est-il fait pour le Prince, ou le Prince pour le Peuple? Doit-on adorer une Divinite´ que l’on ne reconnoıˆt point; ou rendre a` la Divinite´ que l’on reconnoıˆt, un Culte que l’on croit lui eˆtre desagre´able? Aucun homme mortel peut-il dominer sur la Conscience d’un autre, dont les mouvemens ne lui sont meˆme connus que par des Signes sujets a` eˆtre fort e´quivoques?42 In the joint defence of the rights of people and of conscience Barbeyrac thus seems to impart an almost republican value to Bayle’s theory of the freedom of conscience, as, in common with Noodt, he incorporates it within the Lockian theory of tolerance as Pufendorf himself had argued in De habitu religionis christianae.43 Even so, in comparison with both Locke and Bayle, the position taken up by Noodt and Barbeyrac appears more moderate. In relation to Bayle this is because their idea of civil tolerance does not go so far as to include atheists and Catholics, remaining in agreement with Locke’s position on this point. Yet, in contrast to Locke, the principle of separation between political and religious power is softened and it is held to be entirely legitimate, even desirable, that the sovereign should use his power to favour and uphold what he believes to be the true religion.44 Therefore, once the possibility of a dominant religion is admitted, the right of excommunication given to the churches could, in real historical contexts, render the effects of civil tolerance useless, and thus the implicit distinction between civil tolerance and ecclesiastical tolerance could in some ways appear opportunistic and conservative in character.45 Nevertheless, as regards this point, it can be observed how the dispute with the Benedictine Father Ceillier drove Barbeyrac to underscore the dangers of ecclesiastic intolerance and thus to distance himself from the opportunism that in the Protestant world could result in making a claim for civil tolerance to the detriment of ecclesiastic tolerance. Although Barbeyrac affirmed in the preface to the Traite´ de la moral des Peres de l’Eglise,46 that he had intended to use his preface to Pufendorf to speak only of civil tolerance, the confusion that his critic continually made between civil and ecclesiastical tolerance had forced him to deal with this argument as well. In point of fact Ceillier 42 Du pouvoir des souverains et de la liberte´ de conscience, XXXI–XXXII. This rhetorical question, which was widespread in Huguenot texts, had its ‘‘Monarchomach’’ roots in a passage from T. de Be`ze, Du droit des Magistrats, ed. R. M. Kingdon (Geneva, 1971), 9. 43 In DNG, VI, IV, § XI, note 2, it was Barbeyrac himself who associated Locke’s principles on tolerance with Pufendorf’s in De Habitu. On this issue I recommend F. Palladini, ‘Stato, Chiesa e tolleranza nel pensiero di S. Pufendorf’, in Rivista storica italiana, CX (1997), 436–82. 44 Substantially in agreement with this reading is Cheymol, 935ff., who placed Noodt and Barbeyrac in the current of liberal Erastianism. On the other hand I have not found any textual comparison to the thesis of G. C. J. J. Van den Bergh, The Life and Work of Gerard Noodt (1674–1725). Dutch Legal Scholarship between Humanism and Enlightenment (Oxford, 1988), 226–27, according to which Noodt’s idea of tolerance was wider than Locke’s, in so far as it did not exclude Catholics and atheists from this tolerance, as Locke had done. The same thesis has been put forward by F. Lomonaco, Tolleranza e liberta` di coscienza, 9–18. 45 This is what, for example, is affirmed by J. van Eijnatten, Liberty and Concord in the United Provinces. Religious Toleration and the Public in the Eighteenth-Century Nederlands (Leiden/Boston, 2003), 258–61, who places Noodt and Barbeyrac’s doctrine of tolerance in the context of the Dutch debate. Also by this author on Noodt and Barbeyrac see Mutua christianorum tolerantia. Irenicism and toleration in the Netherlands: the Stinstra affair 1740–1745 (Florence, 1998), 41–51. 46 Pre´face, XIV. See also the review on the treatise written by Barbeyrac for the Bibliothe`que raisonne´e des ouvrages des savans de l’Europe (1728), I, 108–20, and II, 293–335.

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had not used exactly this terminology, but had concentrated mainly on what he believed to be the paradoxes inherent within the idea of universal tolerance, which he saw as the inevitable consequence of the idea of civil tolerance itself. Taking up many of the arguments used by Bossuet in his polemic against Jurieu, he had argued that the ‘‘system of tolerance’’ was in fact new not only in the context of the history of the Church, but also in relation to the Reformed tradition itself and its founding fathers, Luther, Calvin and Zwingli, who had decisively condemned it. Thus, to Ceillier’s eyes the Protestant position itself, identified with the refutation of the principle of authority and with the call for free individual interpretation of the Scriptures, was condemned to being either intrinsically contradictory or socially subversive. Once the principle of the authority of the Church was rejected, the intolerant position of the Reformists and Jurieu’s ‘‘opportunistic’’ position, which, like Bossuet, argued against Bayle’s universal tolerance in favour of tolerance restricted to certain contexts, both seemed incoherent. But to Ceillier the direct consequence of the Protestant principle of free enquiry was in fact a universal tolerance that would also have to include Catholics, given that even they recognised the fundamental tenets of Christianity, namely the belief in the sanctity of the Scriptures and in Jesus as the Messiah. But apart from underlining the incongruity of the supposed Protestant tolerance treating Catholics as idolaters and antichrists, Ceillier concluded his theoretical refutation by arguing that the very idea of universal tolerance ended up giving everyone the right to read the Scriptures and find or imagine in them whatever they needed to claim their total independence from all forms of power, not only ecclesiastical, but also civil. Insubordination not only in the Church but also in the state was therefore the direct consequence of the principle of free enquiry and the idea of tolerance.47 In chapter XII of the Traite´ de la morale des pe`res de l’Eglise Barbeyrac introduced the distinction between civil and ecclesiastical tolerance in order to relaunch a vision that was coherent, delimited and favourable to the social and political order of Protestant tolerance, with the aim of rebutting Ceillier’s arguments. Without pausing to look at his analysis of civil tolerance, which has already been examined by other interpreters, I believe it is useful instead to highlight some of the significant aspects of his doctrine of ecclesiastical tolerance. At first sight, the definition that he gives it adds nothing to those that were already known and for the most part takes up the idea of peace and Christian concord that was often spoken of within the Protestant movement: this ‘‘consiste a` souffrir dans une meˆme Socie´te´ Eccle´siastique ceux qui ont quelque sentiment particulier’’.48 Moreover, precisely in order to mark the distance between this tolerance and the universal tolerance attacked by Ceillier, Barberyrac argues for the need for a limit beyond which tolerance cannot go, a necessity that is stronger than that of civil tolerance, which excludes only what is politically damaging and not what is dogmatically divergent. The definition of ecclesiastical tolerance is intrinsically limited by containing the threshold of intolerance, which corresponds to the Churches’ power of excommunication, the compelle exire: ‘‘On ne peut pas ne´anmoins inferer de la`, comme le pre´tend le P. Ceillier, qu’il faille tolerer dans une 47 Apologie de la morale des Peres de l’Eglise, contre les injustes accusations du sieur Jean Barbeyrac, Professeur en Droit & en Histoire, a` Lausanne, Par le R. P. D. Remy Ceillier, Religieux Benedectin de la Congregation de S. Vanne & S. Hydulphe, Doyen de l’Abbaye de Moyenmoustier (Paris, 1718), ch. X, 251–85. 48 Traite´ de la morale, 172. On the range of possible positions within the Protestant world on the distinction between civil and ecclesiastical tolerance see Cheymol, 29– 37 and 509–45. J. van Eijnatten, Mutua tolerantia, 18, argues that amongst the Calvinists the theolgian Gisbertus Voetius was the first to use it. For a history of the concept of tolerance in France between the seventeenth and eighteenth century a highly useful tool is G. Schlu¨ter, Die franzo¨sische Toleranzdebatte im Zeitalter der Aufkla¨rung. Materiale und formale Aspekte (Tu¨bingen, 1992). Less detailed is the synthesis by B. de Negroni, Intole´rances. Catholiques et protestants en France, 1560– 1787 (Paris, 1996). On civil and ecclesiastical tolerance in Bayle see the chapter dedicated to this theme in E. Labrousse, Pierre Bayle, 520–43.

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meˆme Socie´te´ Eccle´siastique toute sorte de Sectes ou de Religions’’.49 Nevertheless, the manner in which Barbeyrac presents the Churches’ power of excommunication is very cautious: while deriving it, in a Lockian way, from the contractual nature of ecclesiastical societies, he presents it as the fruit of an explicit decision taken by the Church rather than as an intrinsic right and thus makes it conditional: Ce qu’il y a au moins de certain, c’est que, si l’on s’est fait une Loi de ne pas souffrir dans la Socie´te´ Eccle´siastique de certaines Opinions, qu’on croit dangereuses pour le Salut, on n’a ici encore d’autre droit, que de de´clarer paisiblement a` ceux qui les ˆ tiennent et qui y persistent, que n’aiant pas les qualitez sou requises dans les Membres d’un tel Corps, on ne peut plus les regarder comme tels: de meˆme qu’on en use dans toutes les autres Socie´tez contracte´es volontairement et sous certaines conditions. Du reste, on ne peut le´gitimement user envers eux de la moindre ve´xation.50 Thus, on the one hand Barbeyrac distinctly reaffirms the incompatibility between Protestantism and Catholicism, and therefore the exclusion of Catholics from Protestant tolerance. He argues this not only for reasons of social order (objecting to Ceillier with a belief in the subversive nature of ‘‘Papism’’) but also for reasons of dogma, in so far as the very principles of these religions make them two completely opposed systems. Yet, on the other hand, he tends to counsel a moderate and humane use of the right to excommunication, focusing on the importance of modesty and moderation to accompany the certainty of possessing the truth. And his plea in favour of ecclesiastical tolerance unfolds in three stages. The first consists of comparing ecclesiastical societies to the society of scholars and religious doctrines to philosophical systems: since they all have a common goal, namely the quest for truth, it would be absurd to use force rather than reason in order to convince others of opinions held to be true. Moreover, while there is only one truth, its characteristics are seldom so clear as to eliminate all doubt, and indeed in the religious sphere God himself has deliberately left many questions shrouded in mystery, such as those relating to his nature and essence, the extent and harmony of his attributes, his decrees, and the ways in which he acts. There can be different contrary opinions around these issues and it is not possible to know which is true since it is even possible that two contrary opinions can both be wrong.51 Consequently, and here the second argument comes in, because salvation is an individual question and, in the final analysis, there is no external coercion on individual consciences, individuals should not intrude into other people’s convictions and usurp God’s power to judge who will and will not be saved. Almost turning on their head Juriet’s arguments used by Bossuet to oppose civil tolerance and argue that it is impossible to live in peace with those one believes to be damned,52 Barbeyrac underlines how modesty,

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Traite´ de la morale, § XXI, 177. Traite´ de la morale, § XXV, 178–9. Traite´ de la morale, § XVIII, 176. 52 P. Jurieu, Le Tableau du socinianisme, Ou` l’on voit l’impurete´ et la faussete´ des Dogmes des Sociniens, et ou` l’on de´couvre les mysteres de la cabale de ceux qui veulent tolerer l’heresie Socinienne (La Haye, 1690), VIII letter, 402–3, 420. According to Jurieu, supporters of civil tolerance in fact wanted to establish indifference to religion alongside ecclesiastical tolerance, convinced that it is possible to be saved in all religions. However, for Jurieu, this peaceful ideal contradicted reality because ‘‘tandis que le Papiste me regardera comme un damne´, et que je regarderay le Mahumetan comme un reprouve´, et le Socinien comme hors du Christianisme il sera impossibile de nourrir la paix entre nous. Car nous ne sc¸aurions aimer, souffrir ni tolerer ceux qui nous damnent’’. This same affirmation is cited by J. B. Bossuet, Avertissemens aux protestans sur les lettres du ministre Jurieu (Paris, 1822), vol. II, VI Avertissement (1690), 230–1, to argue, like Jurieu, that calling for civil tolerance necessarily leads to ecclesiastical tolerance. Other than the texts cited earlier, on Jurieu see A. Minerbi Belgrado, ‘Pierre Jurieu o le difficolta` dell’intolleranza’, in La formazione storica dell’alterita`, vol. II, 595–615. 50

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Christian charity and the gift of peace demand that those who have different opinions to our own should not be deemed to be debarred from salvation, particularly if these opinions relate to matters of pure speculation and do not impinge on practice and on the impeccable conduct of those who profess them.53 Finally, precisely when criticising the confusion that Ceillier had made between civil and ecclesiastical tolerance, Barbeyrac finishes by recognising the implicit link that his Benedictine critic had made between the two and thus argues that it is the lack of ecclesiastical tolerance that leads to a lack of civil tolerance. In this way he turns the consequential link that Jurieu and Bossuet had established between civil and ecclesiastical tolerance on its head, maintaining that without the latter even the first is difficult to realise. At the same time he admits— conceding this point to his interlocutor—that Protestants can rightly be reproved for such ecclesiastical intolerance.54 However, while the main cause of the abuses and the divisions that infiltrated the Reformed world stemmed from this problem, in the final analysis he agrees with his Catholic critic in recognising the free examination of the Scriptures as the fundamental principle of Protestantism, at the same time identifying it with the principle of tolerance itself. Thus, and here we reach the conclusion, while Catholic intolerance derives from the very principles of Catholicism and therefore must be imputed to the system and not the people, Protestant intolerance contradicts the principles of Protestantism, and so must be imputed to the people and not the religion itself. While it did not respect the rigorous separation of Church and State which Locke sought and was far from being the universal civil tolerance called for by Bayle, it nevertheless seems difficult to see Barbeyrac’s doctrine of tolerance as conservative or opportunistic, precisely because it explicitly avoids the danger of opportunism and of falling back into the intolerance or ‘‘Papism’’ that he reproves in the great Reformists and eighteenth-century defenders of the various orthodoxies. From this point of view, there undoubtedly appear to be many points of contact and convergence with positions that, a few decades later, would be taken up by Rousseau, in particular the vision of Protestantism identified with the free examination of Scripture, the primacy of morality over dogma, the link between civil and ecclesiastical tolerance, and the condemnation of the opportunism of tolerance in the Protestant world.55 Nonetheless, what is important to underline is that with regards to more specifically political issues the anti-despotic implications of

53 ‘‘Quand on voit sur tout, que des Opinions, qu’on juge dangereuses, n’ont aucune influence sur la conduite de ceux qui les professent, qu’ils sont autant ou plus exacts a` remplir les devoirs de la vertu et de la pie´te´, que les plus ze´lez pour le sentiment contraire; quelle re´pugnance ne doit-on pas avoir a` te´moigner le moins du monde, que l’on regarde comme exclus du Salut, ou en danger de l’eˆtre, des gens en qui l’on voit briller les marques les moins e´quivoques d’une disposition salutaire?’’, Traite´ de la morale, § XXIV, 178. 54 ‘‘Il est vrai que, comme le de´faut de Tole´rance Ecclesiastique me´ne aise´ment au ˆ des tems, et des lieux, ou` l’on n’a pas tou ˆ jours de´faut de Tole´rance Civile, il y a eu suivi, sur cet article, les principes de l’Evangile et de la Reformation’’, Traite´ de la morale, § XLII, 186; see also Jurieu, Tableau, 410, and Bossuet, Avertissemens, II, 145: ‘‘la tole´rance civile, c’est-a`-dire, l’impunite´ accorde´e par le magistrat a` toutes les sectes, est lie´e ne´cessairement avec la tole´rance eccle´siastique; et il ne faut pas regarder ces deux sortes de tole´rances comme oppose´es l’une a` l’autre; mais la dernie`re (sic!) comme le pre´texte dont l’autre se couvre’’. Very similar arguments to Barbeyrac’s can be found in the chapter of the Social Contract dedicated to civil religion, where Jurieu’s assertion that one cannot live in peace with those who we believe to be damned is used to demonstrate the inseparable nature of theological and civil tolerance, OC, III, 469. P. Re´tat, Le dictionnaire de Bayle, 331, note 109, had already revealed the similarity of Barbeyrac and Rousseau’s perspectives on this point. 55 From Letter to Voltaire to the Letters from the mountain it is possible to see clear analogies between Rousseau and Barbeyrac’s vision of Protestantism, although, in contrast to the latter, Rousseau limits the rights of conscience in relation to the introduction of new faiths into the State; on this subject I permit myself to direct the reader to G. Silvestrini, ‘Religion naturelle, droit naturel et tole´rance dans la ‘‘Profession de foi du Vicaire Savoyard’’’, Archives de Philosophie, LXXII (2009), n. 1, 31–54.

the idea of freedom of conscience are discussed in such a way as to establish a distance from what might be defined as the more radical current of the Huguenot movement. In my opinion, this is more clearly recognisable in the preface and the notes to Le droit de la guerre et de la paix by Grotius than in the preface and notes to Pufendorf’s Droit de la nature et des gens, which makes it hardly possible to see a conservative evolution in Barbeyrac’s thought. Rather, in my opinion, he makes a different strategic use of the ideas of the two authors who he designates the founding fathers of modern natural law: while in the case of Pufendorf the translator aims to correct the original’s Hobbesian sympathies by using citations from Locke, Sidney and Abbadie, in the case of Grotius he instead seems to want to find the theoretical instruments to justify the right of resistance within his own doctrine without at the same time slipping into anti-monarchist positions. It is in the notes to the translation of Pufendorf that Barbeyrac above all underlines, using Locke against Pufendorf’s excessive loyalty to the Hobbesian idea of the state of nature, how the civil state cannot be considered superior to the state of nature unconditionally, but can only be so when the sovereign does not abuse his power.56 It is here that Barbeyrac summarises or quotes long passages of Locke’s Second Treatise and his Letter Concerning Toleration.57 It is also here that, following Locke, Sidney and Abbadie, he affirms that the pact of submission has to satisfy certain conditions, defending the idea of the inalienability of nature: ‘‘Personne ne peut vendre sa liberte´ jusqu’a` se soumettre a` une Puissance Arbitraire, qui le traite absolument a` sa fantaisie; car ce seroit vendre sa propre vie, dont on n’est pas le maitre’’.58 Nevertheless, although, as Ross Hutchinson has revealed, most of Barbeyrac’s citations of Locke occurred in his early years and tended to appear only rarely after the 1720s and in the translation of Grotius,59 any idea that Barbeyrac changed his attitude towards Locke does not appear legitimate. For one thing, at least one new reference to Locke was added in a note to the 1740 edition of the translation of Le droit de la nature et des gens in support of the doctrine of the parts of sovereignty.60 Moreover, even when translating Pufendorf, Barbeyrac is undoubtedly a moderate reader of Locke. In fact, the right of resistance that he invokes resembles more what the Monarchomachs’ tradition attributed to the ‘‘order of the kingdom’’ than to Locke’s appeal to the heavens.61 What is more, the way he interprets Locke when translating him directly reveals an unmistakable distance in relation to the reading that emerges from the translation by the Huguenot David Mazel who, as Salvo Mastellone has shown, radicalises Locke’s English text. In note 1, VII, VIII, VI of the Droit de la nature et des gens, Barbeyrac quotes Locke, translating the text of the Second Treatise, ch. XVIII, §209: 56 DNG, II, II, § II, note 17 (in the editions of 1734 and 1740, note 16 in the 1706 edition.) 57 DNG, IV, IV, § IV, note 4, on the right of property; VI, II, § X, note 2, on paternal power; VII, IV, § XI, note 2, on the power of the magistrates on issues of religion and on tolerance; VII, VIII, § VI, note 1, on the right of resistance. 58 DNG, VII, VIII, § VI, note 2. 59 R. Hutchinson, Locke in France 1688–1734 (Oxford, 1991), 82. 60 G, 1740, VII, IV, § I, note 3. 61 ‘‘Quand on parle d’un Tyran, qui peut le´gitimement eˆtre de´pose´ par le peuple, on n’entend pas par le mot de Peuple la vile populace ou la canaille du Pais, ni une cabale d’un petit nombre de se´ditieux; mais la plus grande et la plus saine partie des sujets, de tous les ordres du Roiaume. De plus il faut que la tyrannie soit notoire et de la derniere evidence, en sorte que personne n’en puisse plus douter’’, DNG, VII, VIII, § 6, note 1. On this, see Bazzoli, 193, and Hochstrasser, ‘The claims of conscience’, 41. Dufour, ‘L’ambivalence politique’, 57, following Meylan, instead argues for the radicalism of Barbeyrac’s doctrine of resistance, which even includes the individual right to resist oppression. Nonetheless it seems to me that this can be considered a radicalisation of the constitutional right to resistance theorised by the Monarchomachs, in other words the individual’s right to resist, which was also admitted by Hobbes in the case of a threat to life, rather than the right exercise directly by the people without recourse to intermediary organs, which Barbeyrac excluded.

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il est impossible que le Souverain, s’il n’a ve´ritablement en vue que le bien de son Peuple, la conservation de ses sujets, et le maintien de leurs Loix, ne le fasse connoıˆtre et sentir; de meˆme qu’un Pe´re de famille ne peut que faire remarquer a` ses Enfans, par sa conduite, qu’il les aime, et qu’il prend soin d’eux. In the original English of Locke the term ‘‘souverain’’ corresponded to ‘‘governor’’, but is translated instead with ‘‘un prince, ou un magistrat’’ by David Mazel, who thus remained faithful to the more radical and ‘republican’ current of the Refuge which conceived royalty as the supreme magistracy rather than as the sovereign power.62 Several of Barbeyrac’s notes in chapters III and IV of book I of the Droit de la guerre et de la paix concentrate on this very point, on the explicit move away from the idea of a sovereignty that originates with the people and of which the kings are only the custodians. These are the same chapters that Rousseau tartly described as contradictory. And the explanation of this move is clearly presented in the final part of the Pre´face du Traducteur, where the more exact political significance that Barbeyrac intends to attribute to the science of natural law is made clear. Once again the starting point for this clarification appears to be the desire to be polemical, in this case the need to propose an interpretation of Grotius’s politics that distances itself from two opposing fronts and makes it possible to defend him from a dual accusation. The first is that of having ‘‘un peu trop donne´ au Pouvoir des Rois’’, a well-founded accusation, Barbeyrac recognises, although in order to excuse the author he pleads that he would have needed to avoid any suspicion of having any affinity with the seditious doctrines of the Jesuit Mariana. Furthermore, without disregarding the possible pro-absolutist and monarchist reading of Grotius, he shows that he is well aware of the anti-absolutist use that the Protestant world made of this author, and he cites three works in which Grotius’s authority is invoked in defence of the English Revolution and of the right of resistance.63 And although in the Pre´face Barbeyrac does not explicitly state 62 The English text from Locke, ed. P. Laslett (Cambridge, 1988), ch. XVIII, § 209, states: ‘‘It being impossible for a Governor, if he really means the good of his People, and the preservation of them and their Laws together, not to make them see and feel it; as it is for the Father of a Family, not to let his Children see he loves, and take care for them’’. This passage was translated in the following way by D. Mazel (Amsterdam, 1691), ch. XVII, par.XI: ‘‘car il est impossible qu’un Prince, ou un Magistrat, s’il n’a en ˆ e que le bien de son Peuple & la conservation de ses sujets et de leurs Loix, ne le veu fasse connoistre et sentir; tout de mesme qu’il est impossible qu’un Pe´re-de-famille ne fasse remarquer a` ses enfans, par sa conduite, qu’il les aime et prend soin d’eux’’. On the Republican reading of Locke’s Second Treatise which Mazel’s translation helped to spread, see S. Mastellone, ‘La nascita del linguaggio costituzionale: J. Locke et D. Mazel’, in Il pensiero politico, XII (1979), 285–99; and S. Mastellone, ‘Introduzione’, in J. Locke, Du gouvernement civil, traduit de l’anglais (Florence, 1988), in particular XII. Also D. Le Clerc, in the extract of the Second Treatise published in the Bibliothe`que universelle et historique, vol.XIX, October 1690, 582, had attributed to Locke the doctrine according to which: ‘‘la Souveraine Autorite´ re´side toujours dans le peuple, quoi qu’il ne l’exerce jamais, pendant que la forme de Gouvernement subsiste; mais seulement lors qu’elle est renverse´e, par l’infraction des Lois fondamentales, sur lesquelles le salut de l’Etat est appuie´’’. 63 DGP, Pre´face du traducteur, XXXI and note 1 on XXX. These are the Reponse A L’Avis aux Refugiez, par M. D. L. R. (Rotterdam, 1709), a reply to Bayle by the Huguenot Isaac de Larrey (1638–1719), who had emigrated to Holland and become a historiographer of the General States, regarding which G. H. Dodge, 135–7 provides an overview; Supple´ment de la crise; Ou Relation du De´bat qu’il y eut, entre les Commissaires De´putez de la Chambre Haute et ceux des Communes, sur l’Abdication du Roi Jaques et la Vacance du Throne, en 1689, avec Un Discours sur le Lion Politique et une Lettre a` l’Auteur de l’Anglois, by Mr. Richard Steele, translated from the English (Amsterdam, 1714); and the Discours de Mr. L’Eveque de Salisbury, Prononce´ dans la Chambre des Seigneurs, sur le I. Article de l’Accusation intente´e contre le Docteur Sacheverell, in Les Avocats pour et contre Le Dr. Sacheverell. Avec plusieurs Pieces Importantes, Concernant le Proces de ce Docteur, translated from English (Amsterdam, 1711), 31–59, which relates to Gilbert Burnet (1643–1715). In all three cases the authors cite Grotius in defence of the English Revolution. The different use that various authors of the Refuge made of Grotius, be it on behalf of Bayle or on behalf of supporters of the right to resistance like as Jurieu has been brought to light by Hochstrasser, The claims of conscience, 28–37. See also Tillet, La constitution anglaise, 57, which defines Grotius as an ‘‘autorite´ omnipre´sente sous la plume des hommes du Refuge’’.

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against whom he is defending Grotius from the accusation of excessive bias towards the kings, in the notes of his translation he argues many times against the criticisms made against Grotius by Gronovius, who Bayle had indirectly stigmatised as the republican commentator of Grotius.64 In fact, while he had translated his Discours sur la loi royale, Barbeyrac had disassociated himself from Gronovius, criticising both his idea of a submission of the kings and the sovereign to the law and the conviction that the people were always the titular sovereign.65 This need to distance himself from the more radical Protestant positions becomes even more apparent when Barbeyrac fights on the other front against the Jacobite supporter Andrew Michael Ramsay who, in the Discours sur la Poe¨sie Epique had dangerously compared Grotius and Pufendorf to Machiavelli and Hobbes, accusing them of having founded their politics on pagan maxims.66 Thus Barbeyrac was arguing against Ramsay when he reiterated the differences that separated the former from the latter rather than merely reaffirming the religious and Christian dimension of natural law that he supported, a conformist natural law in keeping with, and not opposed to, the principles of Fe´nelon, which Ramsay claimed to follow. He also shed light on the political consequences that derive from this science, namely the rejection, particularly from Grotius, of an excessive theory of passive obedience, a rejection based on a series of very precise principles: the criticism of the directly divine origin of sovereignty, the idea of the contract as the foundation of sovereign authority and the admission that circumstances might exist in which it is possible to oppose a sovereign who has clearly violated the fundamental laws of the state. And by drawing Ramsay’s most famous political text, the Essay philosophique sur le gouvernement civil, into the argument, Barbeyrac concluded his preface by forcefully reaffirming the difference between property and authority, between the right to inherit goods and the hereditary right to the crown, and arguing that what Ramsay called the ‘‘fiers Re´publicains’’ were in reality the true friends of the kings because, by setting them certain appropriate limits, they avoided exposing society to the danger of rebellion. But what is interesting is in fact the political theory that Ramsay attributed to the ‘‘republicans’’ in the long passage of the 64 Avis important aux Re´fugiez, 217–8: In Dutch Calvinism De jure belli et pacis is no longer published ‘‘sans y ajouter les notes de Gronovius comme un preservatif contre le pretendu poison de l’Original’’. The epitaph of ‘‘Republican’’ is attributed by Bayle to the seditious libels circulated by the Huguenots (p. 83) and all the authors who, like the Monarchomachs, advanced the theory of popular sovereignty and consequently argued that the princes were not the first ‘‘officiers’’ of the people (p. 163). This doctrine was thought to be seditious in that it argued the right to resistance. On Johannes Fredericus Gronovius (pp. 1611–1671), see F. Lomonaco, Lex regia. Diritto, filologia e fides historica nella cultura politico-filosofica dell’Olanda di fine Seicento (Naples, 1990), 39–125. 65 DNG, VII, VI, § III, note 4: here Barbeyrac argues against Gronovius that the king is not subject to the law, just as the free people who do not have any superiors are not. In § V of the same charter, where Pufendorf discusses the theory of the superiority of the people over the king, citing Grotius on the matter, Barbeyrac affirms in note 2: ‘‘C’est au Liv. I ch. III. § 8. Gronovius critique ici encore ce Grand Homme’’, but this criticism no longer follows the earlier one. ‘‘Il se tue de prouver, que lors qu’un souverain a de´ge´ne´re´ en Tyran, et qu’il gouverne d’une manie´re qui tend manifestement a` la ruine de l’Etat, ou lors qu’il viole les Loix fondamentales, auxquelles il avoit promis de se conformer, le Peuple peut lui resister, et se de´livrer de ce joug inique. Mais c’est ce que Grotius reconnoit formellement [...] Tout ce qu’il pre´tend d’e´tablir dans l’endroit, dont il s’agit, c’est que la Souverainete´ n’appartient pas au peuple touˆjours et sans exception, en sorte qu’il puisse reprimer et punir les Rois toutes les fois qu’ils abusent de leur Pouvoir. Aussi Gronovius pouvoit s’e´pargner la ˆ tient pas’’. peine de re´futer ce que son Auteur ne sou 66 Discours sur la Poe¨sie Epique, et de l’excellence du Poe¨me de Tele´maque, in F. Fenelon, Avantures de Te´le´maque, premiere e´dition conforme au manuscrit original (Paris, 1717), vol. I, xxxj–xxxij. On this author and his political ideas see the recent book by M. Baldi, Verisimile, non vero. Filosofia e politica in Andrew Michael Ramsay (Milan, 2002). On the importance of the monarchist authors, Bossuet, Bayle and Ramsay in constructing the ‘‘Republican’’ identity of such authors as Locke or Jurieu, see S. Mastellone ‘Introduzione’, XIV–XVI and E. Gojosso, Le concept de re´publique en France (XVIe–XVIIIe sie`cle) (Aix-Marseille, 1998), 205–45.

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Essay quoted by Barbeyrac in his preface: ‘‘Les Rois, dira le Re´publicain, ne sont que les de´positaires d’une Autorite´ qui re´side originairement dans le Peuple’’.67 If one thinks about this definition—which also perfectly matches the one given by Bayle in the Avis aux Re´fugiez—it seems legitimate to conclude that it was precisely the need to avoid any accusation of republicanism that led Barbeyrac, just as he was preparing to establish the respective rights of the kings and the people, to deny that the people always retained sovereignty: Il faut avoue¨r, que, sur toute la matiere des droits respectifs du Souverain et du Peuple, il y a beaucoup de mal entendu [. . .] Mais si on examine les choses sans pre´vention, on trouvera, ce me semble, qu’il n’est pas fort difficile d’e´tablir des principes, qui ne favorisent ni la Tyrannie, ni l’esprit d’inde´pendance et de Rebellion. Ici il est certain que, du moment qu’un Peuple s’est soumis, de quelque manie`re que ce soit, a` un roi ve´ritablement tel, il n’a plus le pouvoir souverain: car il implique contradiction de dire, que l’on confere un Pouvoir a` quelcun, et que cependant on le retient. Mais il ne s’ensuit pas de la`, qu’on l’ait confe´re´ d’une manie`re a` ne se re´server en aucun cas le droit de le reprendre.68 While taking up the doctrine of ‘‘constitutional’’ resistance that the Monarchomachs had formulated, Barbeyrac refused to share the theory of monarchic power that they, including Althusius, Sidney, Locke, his translator Mazel, and Gronovius himself, had supported: a supreme magistracy whose dignity is superior to that of individuals but inferior to that of the whole realm.69 But it also seems right to think that Rousseau had understood well how for Barbeyrac the Grotian theory of sovereignty could present the perfect means by which to hold together the possibility of resistance and an anti-republican position. In contrast to Hobbes and Pufendorf, and in the final analysis also to Bodin (who had deduced the characteristics of sovereignty from its nature, in particular that of its indivisibility, and had thus placed some constraints on its transfer), Grotius had for the most part maintained that the way in which sovereign power is formed depends on the content of the pact that the people swear to submit to. Nothing is impossible: neither that the people give themselves unconditionally to a master, nor that they limit sovereignty 67

DGP, Pre´face du traducteur, XXXVI–XXXVIII. The passage cited by Barbeyrac can be found in Essay philosophique sur le gouvernement civil, ou` l’on traite De la Necessite´, de l’Origine, des Droits, des Bornes, et des differentes formes de la Souverainete´, seconde edition, revuˆe¨, corrige´e et augmente´e (London, 1721), 69–73. 68 DGP, I, III, § VIII, note 1; see also I, III, § IX, note 3: ‘‘si le Peuple e´toit en droit de se regarder comme inde´pendant du Roi, et d’agir avec autorite´ par rapport a` lui, toutes les fois que le Roi feroit quelque chose qui parotroıˆt injuste, ou contraire au Bien Public; ce seroit une source perpe´tuelle de querelles et de de´sordres [...] Ainsi le Roi alors croiant n’avoir point abuse´ de son Pouvoir, et le Peuple croiant le contraire, ˆ t aucun Juge pour terminer le diffe´rent: il faudroit qu’il vinssent a` une sans qu’il y eu Guerre de´clare´e’’. Here we see how Barbeyrac, against the more radical defenders of the right of resistance, used an argument that could be used against his own moderate defence of this right. As will be seen later, it is precisely this type of objection, the absence of a judge between the king and the people, that Rousseau uses against the ideas of the division of sovereignty and against the theorists of the right to resist. 69 On the Monarchomach theory of sovereignty, apart from the study by E. Crosa, La sovranita` popolare dal Medio Evo alla Rivoluzione francese (Milan/Turin/Rome, 1915), 131–45, see I. Bouvignies, ‘Monarchomachie: tyrannicide ou droit de re´sistance?’, in Tole´rance et Re´forme, 71–96, Ead., ‘Bodin et les Monarchomaques: la re´action absoutiste ou les promesses de l’autonomie’, in Et de sa bouche sortit un glaive. Les monarcomaques au XVIe sie`cle, ed. P. A. Mellet (Gene`ve: Droz, 2006), 145– 80; on Althusius, see T. O. Hu¨glin, Sozietaler Fo¨deralismus. Die politische Theorie des Johannes Althusius (Berlin/New York, 1991), particularly 197ff., G. Duso, ‘La Maiestas populi chez Althusius et la souverainete´ moderne’, in Penser la souverainete´ a` l’e´poque moderne et contemporaine, sous la direction de G. M. Cazzaniga e Y. Zarka (Pisa/Paris, 2001), vol. I, 85–106, and C. Malandrino, ‘Introduzione: La Politica Methodice Digesta di Johannes Althusius’, in J. Althusius, La politica. Elaborata organicamente con metodo, e illustrata con esempi sacri e profani, ed. C. Malandrino (Turin: Claudiana, 2009), vol. I, particularly pp. 82–103.

through fundamental laws, nor that they divide sovereignty among different organs of the state. For this specific reason Rousseau accused him of establishing the law on the basis of circumstance.70 Thus Barbeyrac uses Grotius’s political theory, which is more malleable and pragmatic than Pufendorf’s, for two purposes. On the one hand, as the Huguenot authors had done before him, he makes a broad interpretation of the cases of resistance foreseen by Grotius, contending that when the king carries out acts which are a clear breach of the pact with the people and constitute an act of war against them, then the people have a right to defend themselves and resist.71 On the other hand, he seems to consider the idea of a partage of sovereign rights to be the most suitable instrument for preventing monarchic power from becoming tyrannical or despotic. It is therefore not surprising that the politically moderate and anti-republican version of Protestant natural law that Barbeyrac intended to provide, through an attempt to join the right of resistance to a negation of popular sovereignty by advancing the idea of a partage of sovereignty and by refusing to admit the subordination of the king to the law, was seen as contradictory and opportunistic by Rousseau. He intended to highlight this very contradiction by denouncing the existing incongruity between the homage to King George I, and therefore to the sovereignty of kings, and the difficulty, the reluctance to justify the Glorious Revolution, which Barbeyrac, in keeping with Richard Steele,72 defined as an ‘‘abdication’’. This was an incongruity that, if Barbeyrac had adopted the ‘‘true principles’’, namely the idea of popular sovereignty as the foundation of the power of kings, would easily have been overcome. But right here, in the chapter of the Social Contract which sees Rousseau at his most sarcastic in relation to Grotius and Barbeyrac, he is attacking one of their specific doctrines, the doctrine of the division of sovereignty. 4. Grotius, Barbeyrac and Burlamaqui: the theory of the partage of sovereignty Apart from the superficial reference to the chapter of Pufendorf entitled ‘‘Des parties de la suverainete´ en ge´ne´rale, et de leur liaison naturelle’’, the direct target of Rousseu’s polemic is 70 Contrat social, I, II, 352–3. In truth Grotius uses the term ‘‘maiestas’’ only rarely: he prefers the expressions ‘‘summa potestas’’ and ‘‘summum imperium’’ to Bodin’s terminology. However, commentators are agreed in accepting Barbeyrac’s translation, which refers back to the language of sovereignty, a position that I am happy to share. P. Broschberg has written some useful observations on this matter in ‘Grotius, the Social Contract and Political Resistance. A Study of the Unpublished Theses LVI’, IIL Working Paper 206/2007, in History and Theory of International Law Series (www.iilj.org), 49–57, and in particular pp. 52–4 on the plurality of constitutional forms, a position that Grotius maintains even after the publication of De iure belli ac pacis. See also P. Haggenmacher, Grotius et la doctrine de la guerre juste (Paris: P.U.F., 1983), 536ff., which, however, underlines how Grotius did not yet have a real and true idea of state sovereignty; J. Terrel, Les the´ories du pacte social. Droit naturel, souverainete´ et contrat de Bodin a` Rousseau (Paris: Editions du Seuil, 2001), 115–30 and B. Tierney, The Idea of Natural Rights. Studies in Natural Rights, Natural Law and Church Law 1150–1625 (Atlanta: Scholars Press, 1997), 333–42. 71 DGP, I, IV, II, note 1. The exceptions to the right to resist foreseen by Grotius are listed in I, IV, § VII, 4 and I, IV, § VIII–XIV. On Grotius’s position on the theory of resistance see P. Haggenmacher, Grotius et la doctrine de la guerre juste (Paris, 1983), 533–6. J. Scott, ‘The Law of War: Grotius, Sidney, Locke and the Political Theory of Rebellion’, in History of Politcal Thought, XIII (1992), n. 4, 565–85, sees Grotius’s doctrine of just war as an important source for Locke and Sidney’s theory of resistance. 72 One of the authors of the texts cited by Barbeyrac in the Pre´face to the DGP, the Supple´ment de la crise, 14–5. Steele intervenes in the debate that took place between the members of the House of Lords and the House of Commons to decide if it is possible to define James I’s refusal of the crown with the term ‘abdication’, which did not exist in English law. If Rousseau read this text, the accusation made towards Barbeyrac can be read in a wider sense, in other words as being aimed at all those who defended the English Revolution, interpreting it without blunting the idea of regal absolutism itself.

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undoubtedly the theory of the partage of sovereignty, which is set out in Book I, Chapter III of the Droit de la guerre et de la paix and explicitly quoted by Rousseau. While he did in fact draw on the terminology used in discussions of the division of sovereignty, Pufendorf continued to argue, as had Hobbes, for its indivisibility. On the other hand, despite arguing that sovereignty is something simple and indivisible, Grotius did not exclude the possibility that it could, in certain circumstances, be divided effectively either into subjective parts—as in the case of the two Roman Emperors of the East and the West—or into its potential parts, in other words the various rights of which it is formed. This is possible only when the king and the people make a ‘‘partage expre`s’’ of sovereignty, which occurs when a people retain certain acts of sovereignty and leave the others completely to the king.73 Grotius is, however, careful to distinguish this partage from mixed polybian government: it is not a sharing out of powers to different social groups, but an allocation of very precise functions that rules out any conflict of competencies and therefore avoids the objection generally made by theorists towards mixed government, namely that it does not resolve the problem of conflict between the subjects or the organs that share sovereignty.74 For his part Barbeyrac, commenting on Pufendorf, denies the indivisibility of sovereignty. To argue this would mean conceiving of sovereignty as a physical entity without parts and which is given different names according to the purposes to which it is applied: instead, as Pufendorf had shown in the previous chapter, sovereignty is not tied to a physical person, but can well be transferred even to a collective subject. Thus, he concludes, given that sovereignty can be exercised by several subjects, it is divisible and its unity derives from the aims that it pursues: La ve´rite´ est, que la Souverainete´ renferme un assemblage de divers droits ou de divers Pouvoirs distincts, mais confe´rez pour une meme fin, c’est-a`-dire, pour le bien de la Socie´te´; de sorte qu’a` les considerer en eux-meˆmes, rien n’empeche qu’ils ne soient ou entierement se´parez l’un de l’autre, ou entre les mains de differentes personnes.75 In the fourth edition of the translation of Devoirs de l’Homme et du Citoyen, published in 1718, he adds: ˆ jours e´clairez, sages et gens de bien, Si les Souverains e´toient tou l’intereˆt de l’Etat demanderoit sans doute que toutes ces Parties de la Souverainete´ fussent re´u¨nies entre leurs mains, sans aucune diminution ni modification. Mais comme l’expe´rience fait voir qu’on abuse facilement d’une Puissance e´tendue¨, les

73 DGP, I, III, § XVII. Critics are divided on the actual extent in Grotius of this doctrine of the division of sovereignty. For example, K. Haakonssen, ‘Hugo Grotius and the History of Political Thought’, in Political Theory, XIII (1985), 244–5, argues that for Grotius supreme power is indivisible, while governmental power is divisible. Nevertheless Grotius clearly writes that the subdivision relates to the ‘‘summit’’ of supreme power as the power to compel presupposes at least a parity between king and people: ‘‘Itaque ex coactione saltem paritas sequitur, ac proinde summitas divisio’’, I, III, § XVII, 122. On the question of plurality of constitutional forms in Grotius, as well as the theme of the unity of the ‘‘civitas’’ see A. Brett, ‘Natural Right and Civil Community: the Civil Philosophy of Hugo Grotius’, in The Historical Journal, XLV (2002), n. 1, 31–51. 74 In DGP, I, III, § IX, Grotius had argued that when a people intend to share sovereign authority with the king they have ‘‘re´gler exactement les limites de ces Jurisdisctions respectives, selon la diffe´rence des lieux, des personnes, ou des ˆ t pu ˆ aise´ment discerner ce qui seroit du ressort de affaires; en sorte qu’on eu chacune des Puissances collate´rales’’. On Grotius’s rejection of mixed government see R. Tuck, Philosophy and Government, 164ff. 75 Barbeyrac, DNG, VII, IV, § I, n. 1. In the 1740 edition this paragraph is supplemented with note 3, in which he likens Locke’s theory to his doctrine of the division of sovereignty: ‘‘Mr. Locke, dans son Traite´ Anglois du Gouvernement Civil, II, Part. ch. XII, re´duit toutes ces parties de la Souverainete´ a` trois; sc¸avoir le Pouvoir Le´gislatif, le Pouvoir Exe´cutif, et le Pouvoir de Confe´deration’’.

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inconve´niens qui naissent du partage de quelques-uns des ˆ jours beaucoup moindres, droits de la Souverainete´, seront tou que ceux auxquels on est expose´ par la re´gularite´ dont parle noˆtre Auteur, laquelle n’est bonne qu’en ide´e. C’est cette belle regularite´ qui met les princes en e´tat d’entreprendre, par exemple, tant de Guerres non-ne´cessaires, ou meˆme injustes, dont les Sujets n’e´prouveroient pas les calamitez, si le pouvoir de lever des impoˆts et des troupes e´toit reserve´ ou en tout, ou en partie, au Corps du Peuple, ou a` ceux qui le repre´sentent.76 However, this remained a mere suggestion and, as we know, the real theorist of the doctrine of partage was Burlamaqui in the Principes de droit politique, published posthumously in 1751. If read as a continuation of Pufendorf and Barbeyrac, Burlamaqui’s ideas can be seen as an attempt to systematise the reciprocal adaptation and synthesis of Grotius and Pufendorf’s ideas that Barbeyrac had intended to complete in order to resolve the contradictions and tensions between them. In particular, in the only text prepared with publication in mind, the Principes du droit naturel, which appeared in 1747 a year before his death, Burlamaqui accentuated Barbeyrac’s endeavour to extend natural law by including the motivations inherent in the theory of obligation, emphasising the importance of sociability and the role of religion and above all by strengthening the subordination of natural law to natural religion, from a perspective which was closer to deconfessionalisation than to secularisation.77 At the same time it is clear that Burlamaqui seeks to resolve the fundamental tension he perceived in Barbeyrac’s ideas: the tension between a theory of voluntary adherence to obligation and to the law and the attempt to impose limits on sovereign power in the name of freedom of conscience and the right of resistance. This operation has a specific impact on the level of political theory at the moment in which Burlamaqui takes up and extends the Grotius-Barbeyrac theory of the limits of sovereignty. Barbeyrac’s procedure can in fact be defined as ‘‘antirepublican’’ because it sought to justify the right to resistance without undermining the absolute power of the kings, and, more importantly, without incurring accusations of republicanism from supporters of monarchic absolutism. Burlamaqui’s doctrine, on the other hand, acquires a significance that can be defined as specifically antidemocratic in that his theory of the partage of the rights of sovereignty and the balance of powers is specifically aimed at criticising regimes ruled entirely by the people. As regards the theory of obligation, it is clear that Burlamaqui on the one hand rejected the ‘‘rationalist’’ position identified more with Clarke, who saw the source of obligation in the ‘‘convenance et la disconvenance naturelle que nous reconnaissons dans certaines actions’’, than with Leibniz. Yet on the other hand he believed that the opposing theory, which places obligation in the will of a superior, was also inadequate and inclined too much 76

Devoirs de l’homme et du citoyen, II, VII, § IX, note 1. Even for Burlamaqui, as for Barbeyrac, there are three principles which reason can use to deduce the natural laws: religion, self-respect and sociability, Principes du droit naturel, II, IV, § VI. In the remainder of the text I will use the abbreviation PDN and will refer to the edition originally published in Geneva by Barillot et Fils (1748), in the anastatic reprint: (Hildesheim/Zurich/New York: Georg Olms Velrlag, 1984). The only monograph on Burlamaqui remains B. Gagnebin, Burlamaqui et le droit naturel (Geneva, 1944), apart from the still earlier work on the fortunes of Burlamaqui in the Anglo-Saxon world by R. F. Harvey, J.-J. Burlamaqui, A Liberal Tradition in English Constitutionalism (Chapel Hill, 1937); a long study dedicated to Burlamaqui’s conception of natural law is J.-P. Coujou, ‘Droit naturel et humanite´ chez Burlamaqui. E´tude critique’, in J.-J. Burlamaqui, Principes du droit naturel (Paris: Dalloz, 2007), 207–481. On Burlamaqui’s conception of natural law, other than the observations contained in R. Derathe´ and in S. Zurbuchen, in particular pp. 88–9, 104–14, 136–9, see C. Larre`re, L’invention de l’e´conomie au XVIIIe sie`cle. Du droit naturel a` la physiocratie (Paris, 1992), 44–51; P. Korkman, ‘Introduction’, in J.-J. Burlamaqui, The Principles of Natural and Political Law, transl. T. Nugent, ed. P. Korkman (Indianapolis: Liberty Fund, 2006), i–xix. 77

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towards Hobbesian principles. Thus the Genevan jurist believed that the foundation of obligation should be sought in the will of a superior, but that the superior is directly taken over by a process of rationalisation, in as much as his will ‘‘ne peut produire cet effet, qu’autant qu’elle se trouve approuve´e par notre raison’’.78 Otherwise, if the authority of the superior was not based on the approval of reason, it could produce only an external constriction and not a true and proper obligation. This search for compatibility between voluntarism and intellectualism is both theological and political: just as divine will can be considered the foundation of obligation only if the notion of an omnipotent creator is supplemented with the idea of his perfect wisdom and sovereign goodness, so the right of sovereignty derives from a superior power accompanied by wisdom and goodness.79 Equally, for the law to be such it must satisfy not only formal conditions—that is, it cannot derive solely from whomever has the role of legislating—but also material ones: on the one hand it has to be universal and perpetual, in other words distinct from the particular will of the sovereign and on the other it must be just, in other words it must conform to order, to the nature of things and to the human constitution.80 In this way will and reason, internal motivation and external obligation, command and regulation are considered to be inseparable and constitute a conceptual framework which affirms the supremacy of social life and civil society over the state of nature, on the basis that it is not only a condition which is required by man, but is also more natural and more consistent with divine will. In turn, all this constitutes a premise used to elaborate, at the level of the principles of political law, a theory of sovereignty that allows the consideration of a variety of possible forms, including absolute but not despotic ones, limited ones and mixed ones. The attempt to present a systematic synthesis of Grotius and Pufendorf, which Barbeyrac had drafted in his notes, thus culminates with the restatement of the problem of the best form of government and with the proposal of a precise solution to it. In the Principes du droit politique, following a brief analysis of the state of nature, Burlamaqui largely takes up the arguments and the structure followed by Pufendorf in books VII and VIII of Le droit de la nature et des gens—which deal with the origin and the constitution of civil societies, sovereignty, forms of government, the division of sovereignty, relations between sovereign states, war and the dissolution of states. He then modifies Pufendorf’s theories by directly incorporating Barbeyrac’s corrections, by developing them, and by putting forward arguments of his own to dilute Pufendorfian voluntarism and its political repercussions. It is not possible to go through a point-by-point comparison of the three authors here, so I will thus confine myself to setting out some points I believe to be relevant. Firstly, with regards to the state of nature, even Burlamaqui, like Barbeyrac, presents a more agreeable picture than Pufendorf and, most importantly, rejects the Hobbesian theory in which the state of nature is identified with the state of war. Nonetheless, this antiHobbesian concession is presented as purely hypothetical and the analysis immediately centres on the disadvantages of this state, which trigger a dynamic of conflict and determine its impracticability:

78 PDN, I, VI, § XII. K. Haakonssen, Natural Law and Moral Philosophy. From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996), 336–40, and K. Haakonssen, ‘The Moral Conservatism of Natural Right’, I. Hunter, D. Saunders (eds.), Natural Law and Civil Sovereignty, 27–42 argue that Burlamaqui’s importance arises from the fact that he had formulated clearly for the first time the idea of a self-imposed obligation on religion. S. Zurbuchen, ‘Zum Prinzip des Naturrechts in der ‘‘e´cole romande du droit naturel’’’, Jahrbuch fu¨r Recht und Ethik, XII, 2004, 189–211, instead attributes an Epicurean-Hobbesian theory of obligation to Burlamaqui. 79 PDN, I, IX, § VII and VIII. 80 PDN, I, VIII, § II–IV.

Aussi faut-il convenir que si pendant que les hommes vivoient dans la Socie´te´ de nature, ils avoient exactement observe´ les Loix naturelles, rien n’auroit manquee´ a` leur fe´licite´, et qu’on n’auroit pas eu besoin d’e´tablir un pouvoir souverain sur la terre: ils auroient veˆcu dans un commerce mutuel de services et de bienfaits, dans une simplicite´ sans faste, dans une e´galite´ sans jalousie, et l’on n’auroit connu d’autre supe´rieurite´ que celle de la vertu, ni d’autre ambition que celle d’eˆtre de´sinte´resse´ et ge´ne´reux. However, he goes on to say that, ‘‘les hommes ne suivirent pas long-temps une re´gle si parfaite [. . .] La grande liberte´ et l’inde´pendance dont les hommes jouissoient, les jettoient dans un trouble perpe´tuel’’.81 Thus, in contrast to Barbeyrac, in Burlamaqui the normative and anti-despotic function of the image of the state of nature is lost, since the objective is to demonstrate the need for the institution of governments and for sovereign authority. The same comparison between natural and civil liberty creates an argument for the superiority of the civil state, which ‘‘est de tous les e´tats de l’homme le plus parfait, le plus raisonnable, et par conse´quent le ve´ritable e´tat naturel de l’homme’’. The sacrifice of natural independence and the submission to ‘‘des maıˆtres’’ are thus completely justified and legitimised by the fact that only in the civil state, under the protection of the sovereign, can man attain true happiness.82 Later, in the analysis of the transition from the state of nature to the civil state, Burlamaqui differentiates between the historic origin of societies and the foundation itself of sovereignty. Thus, following Barbeyrac, he moves away from Pufendorf, who had held democracy to be the earliest form of government, and attributes the origin of the first societies to ambition sustained by ability or by force.83 Then, however, as to the theory of the pact as the foundation of the state, like Barbeyrac he fully adopts Pufendorf’s idea, which calls for the pact of union, the ordinance that establishes the form of government and the pact of subjection, dwelling at length on the importance of the pact of subjection, once again in an anti-Hobbesian sense of limiting the power of the sovereigns.84 Finally, with regards to sovereignty—defined as ‘‘le droit de commander en dernier ressort dans la socie´te´ civile, que les 81 Principes du droit politique (Amsterdam, 1751), anastatic reprint by the Centre de Philosophie politique et juridique (Cannes, 1984) (henceforth cited with the abbreviation PDP), I, III, § III and IX. Barbeyrac had instead stated: ‘‘Les guerres ne sont pas une suite ne´cessaire de l’Etat de Nature, et notre Auteur lui-meˆme le prouve un peu plus bas, § 5 contre Hobbes. Il y auroit sans doute quelques Guerres; mais elles ne seroient jamais si furieuses, ni si funestes, ni d’un si grand nombre de gens, que celles qui ravagent si souvent de vastes Provinces, et de grands Roiaumes’’, DNG, II, II, § II, note 10. And in note 17: ‘‘Concluons par un parallele plus exact de l’Etat de Nature, et de l’Etat Civil. L’experience fait voir, que, contre la destination naturelle du Cre´ateur, et par un effet de la corruption humaine, l’un et l’autre de ces e´tats est souvent insociable, et malheureux. Le Gouvernement Civil e´tant le moien le plus propre a` reprimer la malice humaine; l’Etat Civil peut sans contredit eˆtre plus sociable et plus heureux, que l’Etat de Nature. Mais il faut supposer pour cela que la Socie´te´ Civile soit bien gouverne´e: autrement si le Souverain abuse de son pouvoir, ou qu’il se de´charge du soin des affaires sur des Ministres ou ignorans, ou vicieux, comme il arrive tre`s-souvent, l’Etat Civil est beaucoup plus malheureux que l’Etat de Nature; ce qui paroit par tant de Guerres, de Calamitez, et de Vices qui naissent de ces abus, et dont l’Etat de Nature seroit exemt: Voiez ce que dit Mr. Locke dans son second Traite´ du Gouvern. Civil, ch. I § 10 et ch. XVI. I § 17 a` la fin’’. 82 PDP, I, III, § XXVI, XXIX. 83 PDP, I, II, § VI. 84 PDP, I, IV, § III–XV. In the notes to Pufendorf, Barbeyrac had first underlined, in line with the Monarchomach tradition, the importance of the sole pact of submission, that founds the obligations of the kings in his dealings with his subjects and thus justifies resistance in the event that the king violates his promises. DNG, VII, II, § VIII, note 2; on the other hand, in the edition of 1740, where note 2 becomes note 5, he recognises the importance of Pufendorf’s doctrine of the double pact to avoid society being seen as dissolved during an interregnum or in the eventuality of there being no recognised heir at the king’s death. It is also necessary to underline how Barbeyrac takes great care to talk of ‘‘civil society’’ and not of ‘‘the people’’.

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membres de cette socie´te´ ont de´fe´re´ a` une seule et meˆme personne, pur y maintenir l’ordre au dedans et la de´fense au dehors, et en ge´ne´ral pour se procurer sous sa protection, par se soins un ve´ritable bonheur, et sur tout l’exercice assure´ de leur liberte´’’85— Burlamaqui is careful to underline its indivisibility: ‘‘la Souverainete´ ne peut souffrir ni de division, ni de partage; qu’il n’y a plus de Souverains de`s qu’il y en a plusieurs, parce qu’alors aucun ne commande en dernier ressort, et qu’aucun n’est oblige´ de ce´der a` l’autre, il faut ne´cessairement que par leur concurrence tout retombe dans le trouble et la confusion’’.86 And like Barbeyrac, he is determined to find a happy medium between tyranny and the spirit of rebellion, doing so while forcefully underlining the fact that sovereignty initially resides with the people,87 and that no one can surrender his freedom to subject himself to an arbitrary power, for to do so would be wasteful and pointless.88 However, he did not fail to conclude, rejecting once again the distinction between ‘‘une Souverainete´ re´elle, qui re´side toujours dans le peuple, et une Souverainete´ actuelle qui appartient au Roi’’, that the people, once their rights are transferred, no longer have title to sovereignty, although they can reserve the right to have it restored in certain cases.89 In keeping with the tradition of Protestant natural law and without essentially moving away from Barbeyrac, Burlamaqui does not fail to invoke the right of resistance against an authority that abuses its power and becomes tyrannical, but he limits this right to instances of great abuse and identifies the population that has the right to resist with ‘‘la plus grande et la plus saine partie des sujets de tous les ordres du Royaume’’.90 Nevertheless, the attention of the Genevan jurist is concentrated primarily on the limits of sovereignty. And here we see that he first of all distinguishes absolute sovereignty from arbitrary power, explaining to the ‘‘Re´publicains’’—as it was already possible to read in Barbeyrac’s translation of Pufendorf91—that even absolute sovereignty, just like divine and natural laws, contains limits which can be seen in its very nature, in the end for which it has been instituted,92 and does so by making full use of all the arguments which came from the re-examination of divine will from a rationalist position.93 After underscoring, in keeping with Protestant tradition, the innate perils of the exercise of power and how governors are exposed to the temptation to abuse it, he takes up Pufendorf’s theory of the limits of sovereignty almost without alteration—limits which can essentially be found in the agreements made between the people and the sovereign and in the fundamental laws. However, these restrictions do not undermine in any way the prince’s ultimate right to command.94 85 PDP, I, V, § I. This same definition can be found in the Reponse a` la Lettre anonime concernant les Impots contenue en quatre Lettres, Archives d’E´tat de Gene`ve, Ms. hist. 63, f. 19v., edited in 1718 by Jacob de Chapeaurouge (1669–1744), lawyer and brother-in-law to J.-J. Burlamaqui. 86 PDP, I, V, § V. 87 PDP, I, VI, § VI: ‘‘Il faut donc dire que la Souverainete´ re´side originairement dans le peuple, et dans chaque particulier par rapport a` soi-meˆme, et que c’est le transport et la re´union de tous les droits de tous les particuliers dans la personne du Souverain, qui le constitue tel, et qui produit ve´ritablement la Souverainete´’’. 88 PDP, I, VII, § XXII: ‘‘quand meˆme on supposeroit qu’un peuple auroit effectivement voulu accorder a` son Souverain une puissance arbitraire et sans bornes, cette concession seroit nulle par elle-meˆme, et de nul effet’’; see also § XXIII. 89 PDP, I, VII, § XII–XIV. 90 PDP, II, VI, § XIII–XXXVIII. 91 DNG, VII, VI, § VII: ‘‘Ce terme d’absolu est fort odieux aux Re´publicains’’; a similar expression can be found in Hobbes’ De cive, but it refers to all men: ‘‘La plupart des hommes supportent si impatiamment la souverainete´ et la puissance absolue, que meˆme les noms leur en sont odieux’’, Le Citoyen, ou le fondements de la politique, translation by Samuel Sorbie`re, ed. S. Goyard-Fabre (Paris, 1982), VI, XVI, 162–3. 92 PDP, I, VII, § XVI–XXI. 93 PDP, I, VII, § XXV: ‘‘Et comment pourroit-on attribuer un tel pouvoir a` la cre´ature, puisque le souverain Estre ne l’a pas lui-meˆme? Son domaine absolu n’est pas fonde´ sur une volonte´ aveugle; sa volonte´ souveraine est toujours de´termine´e par les re´gles immuables de la sagesse, de la justice et de la be´ne´ficence’’. 94 PDP, I, VII, § XXVII–XLVII: De la souverainete´ limite´e.

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In the end, however, Burlamaqui breaks decisively with Pufendorf and takes up the arguments made by Grotius and, in particular, Barbeyrac before him: Enfin, il y a une autre manie`re de limiter le pouvoir de ceux a` qui la souverainete´ est commise; c’est de ne pas confier tous les diffe´rens droits qu’elle renferme a` une seule et meˆme personne, mais de les remettre en des mains se´pare´es, a` diffe´rentes personnes ou a` diffe´rens corps, pour la modifier, ou pour la restraindre.95 This change of position is made explicit in the following chapter, dedicated in fact to the ‘‘parts of sovereignty’’. Indeed, while in Pufendorf the title of the chapter was ‘‘Des parties de la Souverainete´ en ge´ne´ral, et de leur liaison naturelle’’, thus underscoring their indivisibility, Burlamaqui’s is entitled ‘‘Des Parties de la Souverainete´, ou des diffe´rents droits essentiels qu’elle renferme’’. This chapter begins with a repetition of Barbeyrac’s note, or, more accurately, with a word-for-word transcription of it: L’on peut conside´rer la Souverainete´ comme un assemblage de divers droits et de plusieurs pouvoirs distincts, mais confe´re´s pour une meˆme fin, c’est-a`-dire pour le bien de la Socie´te´, et qui sont tous essentiellement ne´cessaires pour cette meˆme fin: ce sont ces diffe´rens droits, ces diffe´rens pouvoirs, que l’on appelle les parties essentielles de la souverainete´.96 The chapter, which goes on to list the various parts of sovereignty, in turn forms the preamble for introducing—explicitly criticising Pufendorf’s observations on irregular states—the theory of mixed government or of the balance of power, generally considered to be Burlamaqui’s only original theory. This reaches its culmination in the chapter on the ideal form of government, identified, as to monarchies, with the English model of mixed government and, as to aristocratic regimes, with elective aristocracy ‘‘tempered by democracy’’. Nonetheless, if one looks closely at Burlamaqui’s reasoning it is very difficult to trace either a theory of separation or even a genuine theory of the balance of power, an expression that Burlamaqui does not even use other than to mention ‘‘balancement de puissance’’ twice and ‘‘balancement de pouvoir et d’autorite´’’.97 In effect, in the chapter dedicated to the parts of sovereignty, which cites Barbeyrac word for word, he declares that sovereignty consists of different rights and distinct powers, which are however conferred for the one same purpose. In listing the different parts of sovereignty, Burlamaqui first examines legislative power, which he sees as the part of sovereignty that underlies all the others and ultimately exists in order to make laws,98 defined as general and perpetual rules. Legislative power is joined by coercive power, which is the right to decide penalties and impose them on whomever disturbs society; judicial power, the right to control the doctrines that are taught by the state; military power, the right to declare war and make peace, to draw up treaties and conclude alliances with foreign powers; the right to appoint junior ministers and magistrates; and, finally, to levy taxes and to oversee the right to mint money and the right to hunt and fish. Nonetheless, Burlamaqui’s attention is not concentrated on the way in which these powers have to be assigned in order to achieve a balance and restraint of authority and neither is it aimed at identifying the institutional mechanisms that would need to be primed for that purpose. The only suggestion touching on this is merely an 95

PDP, I, VII, §XLVIII. PDP, I, VIII, §I. 97 PDP, I, VII, §L, II, I, XXVI. 98 At the beginning of part III of the PDP Burlamaqui examines in more detail the parts of sovereignty, and goes back to legislative power, defining it as ‘‘le fond de la Souverainete´’’, III, I, §II. 96

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example and relates exclusively to monarchies. It can be found in the passage that introduces the idea of the partage of sovereignty for the first time: legislative power and the power to create the main magistrates are conferred on the ‘‘whole body of the nation’’, executive and military powers are assigned to the king, while an aristocratic senate is entrusted with judicial power and that of levying taxes. Rather than being a purely functional separation of powers, this partage is thus presented as an instrument with which to create an equilibrium between different social groups, the king, the Lords (or the nobility), and the Commons (the people), an equilibrium which was historically accomplished in northern countries, such as England, and which led to ‘‘gouvernement gothique’’.99 But contrarily, as regards aristocracy tempered by democracy, he makes no suggestion—not even by citing the examples of Sparta and Rome—about which parts of the sovereignty must be assigned to the two components into which sovereignty is divided, namely the aristocratic council and the people. The only general indication that can be drawn—valid for both mixed monarchies and aristocracies tempered by democracy—is that legislative power must be entrusted to the ‘‘corps meˆme de tous les citoyens, forme´ par la re´union de tous les ordres de l’Etat’’, the body appointed as the unitary sovereign of the state, whose supreme will ‘‘c’est la loi elle-meˆme par laquelle le corps entier de la Nation fait connoıˆtre sa volonte´’’.100 Consequently, it is possible to establish how for Burlamaqui the partage of sovereignty occurs on two levels. The first is that of the legislative power, an idea that seems similar to what Bernard Manin has defined as the ‘‘liberalism of counterpowers’’ or of ‘‘balances’’.101 The second is that of the remaining parts of sovereignty (about which he does not go into detail except in relation to monarchies), but the information provided is not of a general nature and merely points to different possibilities of distributing the diverse rights of sovereignty.102 Instead, what Burlamaqui is eager to stress is that in such a way the unity of the state and of sovereignty are guaranteed by the unification of all the orders within the state that contribute to producing the law. These are presented as true contracting parties of the convention—which we could define as constitutional—that bring into being the founding laws, the end 99 PDP, I, VII, §L: ‘‘Ce partage produit un balancement de puissance, qui met les diffe´rens corps de l’Etat dans une de´pendance mutuelle, qui retient chacun de ceux qui ont part a` l’autorite´ souveraine, dans les bornes que la loi leur assigne, et qui fait ainsi la surete´ de la liberte´: car, par exemple, l’autorite´ royale se trouve balance´e par le pouvoir du Peuple, et un troisie`me ordre sert comme de contre-poids aux deux premiers, pour les tenir toujours dans l’e´quilibre, et empeˆcher l’un de s’e´lever audessus de l’autre’’. These affirmations are taken up again in II, II, §XXXIII: ‘‘A l’e´gard des Monarchies, il convient, par exemple, que le pouvoir militaire, le pouvoir le´gislatif et le pouvoir de lever des subsides, soient remis en diffe´rentes mains, afin qu’on ne puisse pas en abuser facilement’’; see also §XXXIX. 100 PDP, II, I, §XXI. 101 B. Manin, ‘I due liberalismi: mercato o contropoteri’, Problemi del socialismo (1985) n. 3–4, 45–62. 102 Unlike, for example, Montesquieu, who instead identifies a minimum criterion to define a state as moderate, namely the separation of the power of judgement from legislative and executive power, see Esprit des lois (Paris, 1979), XI, VI, 294, Burlamaqui does not say anything about this. Even N. Matteucci, in the chapter dedicated to ‘Burlamaqui e la costituzione di Ginevra’ in Jacques Mallet-Du Pan (Naples, 1957), 7–28, despite seeing Burlamaqui as one of the founders of liberal constitutionalism (p. 20), highlights all the vagueness of the solution that this author proposed to divide sovereignty, which thus remained midway between a theory of mixed government, understood as a power-sharing of different social groups, and the more modern vision of the functional allocation of powers between the institutional organs of the state (pp. 22–3). It must also be rememberd that the concept of mixed government which is found in Burlamaqui corresponds exactly to the definition that Hobbes had given it in De Cive, VII, IV: the theorists of mixed government, he had said, support ‘‘qu’on pourrait faire, par exemple, que la nomination des magistrats, la de´claration de la guerre ou de la paix, fussent en la puissance du roi; que les grands exerc¸assent la justice; que les impositions et le maniement des finances appartinssent au peuple, et que tous ensemble en corps eussent le droit de faire des lois’’, Le citoyen, 169–70.

purpose of which is the distribution of various parts of sovereignty to the different bodies of the republic. Once this convention is closed and the foundational laws are fixed, all the orders that comprise the republic are invested with the parts of sovereignty assigned to them by the law, of which, Burlamaqui points out, they are in fact the executors, ‘‘puisque c’est de la loi meˆme qu’il tiennent leur pouvoir’’.103 Therefore this partage does not suffer the disadvantage of reintroducing plurality and thereby the division of the body politic. Indeed, just as Grotius had indicated, it is enough for the law to clearly establish the rights and the competencies of each body so that no one can encroach on or usurp the prerogatives of the others. As a consequence, each body is independent of the others in as much as it is subordinate only to the law and holds its own right to command: ‘‘les diffe´rens ordres de l’Etat qui ont part a` la Souverainete´, posse´dent les droits qu’ils exercent par un titre e´gal, c’est-a`-dire, en vertu de la loi fondamentale, et non pas a` titre de commission, comme si l’un n’e´toit que le ministre ou l’exe´cuteur de la volonte´ de l’autre’’.104 In this doctrine of mixed government we can follow a decisive move away from Pufendorf and a return to Grotius. If, in fact, the idea of a sovereignty of the law, to which all the orders of the state are subject, could still be traced in the pages in which Pufendorf advocated the possibility of a limitation of sovereignty through fundamental laws defined as ‘‘Re´gles fixes et perpe´tuelles’’, it was nevertheless clear that for Pufendorf neither the pact of submission nor the particular oaths by which the king swore to respect such fundamental laws created any form of equality between king and people. On the contrary, the asymmetric relation of subordination of one to the other remained intact and the people had no right to constrain or judge the king.105 Instead, in the case of Burlamaqui, behind the idea of the sovereignty of the law there can be seen a notion of a contract which cannot be likened to Pufendorf’s pact of submission, which in fact gave rise to a form of simple government. Indeed, Burlamaqui’s idea is clearly of a pact between equal partners, because there can only be partage of sovereignty between equal partners, as Grotius had in fact insisted.106 And this pact between equal partners ends by taking the place of the double pact of association and submission: Si le Gouvernement est e´tabli sur ce pied-la`, par l’acte primordial d’association, il se fait alors une espe`ce de partage des droits de la Souverainete´, par un contrat ou une stipulation re´ciproque entre les diffe´rens corps de l’Etat. Ce partage produit un balancement de puissance, qui met les diffe´rens corps de l’Etat dans une de´pendance mutuelle, qui retient chacun de ceux qui ont part a` l’autorite´ souveraine, dans les bornes que la loi leur assigne, et qui fait ainsi la surete´ de la liberte´.107 This distancing from Pufendorf also has a very precise political significance. All of Pufendorf’s analysis of limited sovereignty was explicitly centred on monarchical and aristocratic forms of government since, he declared, in states governed by the people could be, properly speaking, no limitation of sovereignty: since the laws are made by the whole body of the people (that is, by all the citizens united in assembly) nobody, outside of the assembly, acquired any significant right, and therefore the people can change the laws any time they want.108 It was exactly this that Burlamaqui

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PDP, II, I, §XXII. PDP, II, I, §XXX. 105 DNG, VII, VI, §VIII–XII. 106 DGP, I, III, §XVII, where a link between partage and the absence of asymmetrical relations of subordination is made: ‘‘Le droit de contraindre emporte du moins une e´galite´, et par conse´quent un partage de la souverainete´’’. 107 PDP, I, VII, §XLIX. 108 DNG, VII, VI, §VIII. 104

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considered to be the problem with popular states, which he insisted were the worst type of government as they were devoid of any advantage. The rule of the common people for him presented an excess of liberty that translated into disorder, license and anarchy and opened the door to the worst kind of servitude. It was this gloomy picture of popular regimes that Burlamaqui opposed with his ideal of aristocracy tempered by democracy.109 It is possible to see, in Burlamaqui’s work, the formulation of a liberal theory of the state intended to denounce the dangers of absolute sovereignty as much for the king as for the people and to support a search for an institutional instrument that enabled the limitation of power by dividing it up in a system of different counterbalancing bodies.110 Nonetheless, this interpretation of Burlamaqui’s thought leads to justifiable perplexity, not only because he perceived the aim of the state as the pursuit of the happiness of its subjects, but also because he gave the sovereign the power to ensure that doctrines taught publicly were in keeping not only with the welfare and peace of society but were also consistent with the truth, and finally because he maintained that legal obligation covers not only external actions but also man’s inner life and that the sovereign, when prescribing laws for his subjects, should aim to make them wise and virtuous.111 If in fact one looks at the real political significance of Burlamaqui’s theory of balance the perplexities increase decidedly and the extreme vagueness of the solution proposed for mixed aristocracies does not appear accidental. Certainly, Burlamaqui had explicitly declared in his will that he did not wish to publish the second part of his manuscript, believing it incomplete, and his family was deeply opposed to its publication, which was instead desired by the pastor Jacob Vernet, the Genevan editor of Montesquieu’s Esprit des lois. All the same, there was little difference between the manuscript of the edition and the manuscript compendium of lessons that Burlamaqui himself had held at the Genevan Academy in the 1720s.112 And, discounting the motives that could have driven Burlamaqui to refuse to publish the parts of his lessons concerning the ‘‘civil government’’, the theories that he put forward had a very clear political significance, and just as clear was the political motivation of their publication in 1751. This was to present as a series of general political principles the theories that the city oligarchy had used to defend its prerogatives and to legitimise its power against the claims of the Citoyens et Bourgeois, who for their part defended the rights of the General Council and the assembly of all citizens.113 In particular, apart from the problem of establishing whether it was Burlamaqui who exerted his influence on the Genevan governors, or whether, as seems more plausible, it was they (in particular his brother in law, Jacob de Chapeurogue) who passed on

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their ideas to the young professor of natural law, it is beyond doubt that the lessons and the posthumous text contain a faithful rendering of the government’s ideas and that they especially reflect the transformation of the government in the early twenties, a change that can be considered the abandonment of the theory of sovereignty dating back to Bodin and Pufendorf in favour of that elaborated by Grotius and Barbeyrac. At the beginning of the century the magistrates had in fact applied the distinction between titularity and the exercise of sovereignty, drawing inspiration from the first two authors and had described their power as stemming from the sovereign General Council, in whose name and by whose express mandate they exercised it. Thus they treated the counsels of government as representatives of government. However, the objections made against this kind of reasoning by supporters of the people’s party and the conclusions that they themselves drew from it had prompted the magistrates to modify their theory and, following Grotius and Barbeyrac, to regard the transfer of the exercise of power as a definitive act implemented as a result of unanimous consensus and the fundamental laws of the state. These therefore became the basis of the prerogatives of each council, which by then considered them entitlements exercised under their own authority and not derived from the General Council. And the Genevan magistrates defined this division of the parts of sovereignty as an equilibrium of government in which the different orders of the state counterbalanced one another, forming a counterweight that made it possible to limit and reciprocally control the authority of the various councils.114 Nevertheless, the regime that the Genevan magistrates, and Burlamaqui, depicted with the image of balance and of counterweights was far from being a moderate form of government with an effective division of powers. Resembling a set of Russian dolls, the system of the councils did not provide for different people sitting on different organs with different competencies. Rather, in the main it allowed a small number of people to control practically all functions of government, taking into their own hands legislative, executive and judicial powers, sitting in all the tribunals—higher and lower—including the one which had the legal power to bestow mercy. Furthermore, the elective system for co-option conferred on these same people the authority to oversee access to political offices without any accountability. It was certainly not far from the true Rousseau when, in the Letters from the Mountain, he denounced as astonishing the way in which a free state had favoured the Small Council of Geneva with such a concentration of powers.115

5. Where Rousseau places Rousseau in the tradition of natural law

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PDP, II, II, §XXIX–XXIX. This liberal reading of Burlamaqui, supported by R. F. Harvey, and consecrated by B. Gagnebin, 183–9, has been followed, apart from by Matteucci, also by R. Derathe´, 48, and by S. Zurbuchen, 109ff. M. M. Rossi, ‘Burlamacchi e la storia costituzionale del Settecento’, in Ginevra e l’Italia, a collection of studies promoted by the Waldensian Faculty of Theology in Rome, ed. D. Cantimori, L. Firpo, G. Spini, F. Venturi, V. Vinay (Florence, 1959), 599, attributes to Burlamaqui a limited theory of monarchy and the division of powers as a means of to guaranteeing a free regime. 111 PDP, I, VIII, §VI, III, I, XXII; the same L. G. Crocker has certainly not hidden his amazement at how, by making these organicist and statist assertions, Burlamaqui, ‘‘devance Rousseau d’une fac¸on surprenante’’, see ‘Les droits individuels et le corps social: Rousseau et Burlamaqui’, Etudes Jean-Jacques Rousseau, IV (1990), 18. 112 On this see C. Borgeaud, ‘La publication des ‘‘Principes du droit politique’’ de Burlamaqui’, Recueil de travaux publie´s par la Faculte´ de droit de l’Universite´ de Gene`ve (1938), 3–12, and M. M. Rossi, Burlamacchi, 558–62. 113 Authors who have contextualised Burlamaqui’s ideas in the context of the political debates in Geneva in the Eighteenth century are P. Barbey, Etat et gouvernement. Les sources et les the`mes du discours politique du patriciat genevois entre 1700 et 1770, Gene`ve, The`se de droit (1990); H. Rosenblatt, Rousseau and Geneva. From the First Discourse to the Social Contract, 1749–1762 (Cambridge, 1997), in particular pp. 125–32, and A. Dufour, L’ambivalence politique, 62–72. 110

At this point the argument I intend to put forward may already be clear. When Rousseau attacks Grotius and Barbeyrac in the chapter on the indivisibility of sovereignty, he is also, and above all, attacking the doctrine of mixed government and of partage put forward by Burlamaqui. Of course, Rousseau did not mention Burlamaqui by name in order to avoid an explicit head-on challenge of the man who was deemed to be the most qualified 114 On this see G. Silvestrini, Alle radici del pensiero di Rousseau. Istitutzioni e dibattito politico a Ginevra nella prima meta` del Settecento (Milan, 1993), 152ff.; Ead, ‘Le re´publicanisme de Rousseau mis en contexte: le cas de Gene`ve’, Les Etudes Philosophiques, 2007, n. 4, 519–41. 115 OC, III, 832–3. It would be interesting to compare the analysis of the Genevan constitution carried out by Rousseau in the Letters from the mountain with the one presented by Montesquieu in the Spirit of the laws of the Italian republics and particularly the Venetian constitution, on which I recommend D. Felice, Oppressione e liberta`. Filosofia e anatomia del dispotismo nel pensiero di Montesquieu (Pisa, 2000), 151–67.

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spokesman of the Genevan government, but in reality he did evoke him in his writings in order to contradict him. He did so right in the subtitle of the Social Contract, ‘‘or principles of political right’’, and he rejected him in Emile when he stated that the science of political law was yet to be born.116 Moreover, he quoted him in the chapter just mentioned without actually naming him, just before naming Grotius and Barbeyrac: instead of using the usual terms of jurists, savants, philosophers or writers, he chose to speak of the ‘‘auteurs en matiere de droit politique’’, accusing them of inexactitude and obfuscation in judging the respective rights of kings and of the people on the basis of principles which they themselves had established.117 Thus if one analyses the content of this brief chapter what immediately grabs one’s attention is that this is the first time that the Social Contract mentions the theory of the distinction between sovereignty and government, between an act of sovereignty, or of a general will, and an act of the magistracy or, rather, of a particular will. This distinction was already present in the Discourse on Inequality and was the presupposition that was rigorously upheld in the Political Economy. But only in the Social Contract does Rousseau argue specifically against the idea of a division of sovereignty between bodies that enjoy a right under their own command, and against the idea of magistrates that are not simple commissioners or ministers that execute the will of others, and contends that the elements that are considered parts of sovereignty instead derive from it: ‘‘that the rights which one takes for parts of this sovereignty are all subordinate to it, and always presuppose supreme wills which these rights simply implement’’.118 Furthermore, if one looks at those parts of the Social Contract that stand out for their intensity and polemical acrimony, they are precisely those that deal with the theory of alienation and the division of sovereignty, of representation and civil religion, all passages in which the figures of Grotius, Barbeyrac and Burlamaqui are expressly or tacitly involved.119 It therefore seems clear to me that Rousseau had consciously chosen to attack both the anti-republican political meaning that Barbeyrac had resolved to imprint on the science of natural law by referring back to Grotius, as well as the way that both these authors had been used to support the politics of the Genevan government, a tactic that was consecrated in the pages of Principes du droit 116

OC, IV, 836. OC, III, 370. 118 Social Contract, II, II, in The Social Contract’ and Other Later Political Writings, 59; OC, III, 370. 119 I have already commented on the passages relating to the theory of alienation and the division of sovereignty. With regards to chapter XV of book III, here Rousseau attacks the English model that Burlamaqui had presented as an example of mixed government together with that of aristocracy tempered by democracy, which was an implicit reference to Geneva. Also significant is the fact that in chapter VII of the same book Rousseau had himself cited England as an example of mixed government, a mixed government in which, however, in direct opposition to Burlamaqui’s doctrine, the ‘‘parties constitutives’’ make a ‘‘partage e´gal’’ not of sovereignty but of the ‘‘puissance executrices’’, OC, III, 413. Finally, the new polemic with Grotius in the chapter on civil religion, in which the translator Barbeyrac is actually also mentioned, does not appear to be unintentional. Pufendorf in fact included the power of the state to control religious doctrines in the chapter of the DNG dealing with the parts of sovereignty, and here Pufendorf declared himself to be following Hobbes’ doctrine. Barbeyrac had added a note in which he denounced the possible abuses of this right, VII, IV, §VIII and note 1. Burlamaqui had taken this up in the PDP, I, VIII, §VI. Furthermore, also in the third part of the PDP, he went back to discussing the right to control doctrines publicly taught in the state and the sovereign power in religious matters. Here Burlamaqui, after having espoused the thesis of the reunion of the two powers and having ascribed leadership in the religious sphere to the sovereign, justified this power with arguments which go beyond usefulness to the public and to the maintenance of peace, investing the sovereign with the task of providing for the eternal happiness of his subjects. Thus the sovereign is given a transcendental purpose, which coexists with faithfulness to the principle of freedom of conscience, III, III. It is therefore not surprising that Rousseau did not judge this aspect favourably. 117

politique by Burlamaqui. Nevertheless, it should still be noted that the politically negative judgment made by Rousseau with regard to these three authors is not linked simply to the actual political context of the Genevan conflicts, but also has a specifically theoretical foundation, given the eminently political function attributed to the art of writing. On the basis of an anthropology centred on the notion of interest,120 Rousseau—postulating that a ‘‘disinterested’’ will is impossible—maintains that the search for truth presupposes a precise existential condition, one in which the individual has an interest in trying to speak the truth and above all has no interest in concealing it, and does not depend for the satisfaction of his material needs on a power that could ask or force him to distort or disguise it. For this precise reason one can say that, in the final analysis, truth and science have a republican significance for Rousseau. By appropriating the definition that absolutist writers had helped to devise, for Rousseau a republican is most of all someone who defends the rights of the people and does not seek to devalue or diminish them in favour of the rights of the king and the magistrates. But defending the interests of the people ultimately means defending the interests of truth and this is possible only if one is of the people, if one is a citizen of a republic.121 Consequently, for Rousseau the true science of political right cannot be anything but republican and it is in this republican sense that he wishes to revise and reform the tradition of natural law, subjecting it to a profound critique, albeit without rejecting it. On the contrary, he not only shows that he believes that there is a tradition of natural law and that this tradition finds its unitary identity in the sharing of certain common theoretical and axiological assumptions, but at the same time he openly announces membership of it, and thus makes a deliberate choice of sides.122 The first of these assumptions is the need to construct a moral science based on certainty—that is, a normative theory of man and of society—which Rousseau identifies with the science of natural law and the search for its principles in the nature of man himself, as he states in the Preface on the Discourse on Inequality: It is this ignorance of the nature of man that casts such uncertainty and obscurity on the genuine definition of natural right: for the idea of right, says M. Burlamaqui, and still more that of natural right, are manifestly ideas relative to the Nature of man. Hence, he goes on, it is from this very Nature of man, from his constitution and his state, that the principles of this science have to be deduced.123 And as with the earlier authors, for Rousseau the project of building a moral science endowed with certainty is designed to

120 On this see D. Se´glard, ‘L’inte´reˆt du contrat social chez Rousseau’, in C. Lazzeri, D. Reynie´ (eds.), Politiques de l’inte´reˆts, Annales Litte´raires de l’Universite´ de FrancheComte´, n. 679 (1998), 295–329; B. Bernardi, ‘La notion d’inte´reˆt selon Rousseau: une pense´e sous le signe de l’immanence’, in Les Cahiers Philosophiques de Strasbourg, XIII (Spring 2002), 149–173. 121 This link between truth and interest can be read as the nucleus of a theory of the relationship between intellectuals and power and public education, as can be seen in the Lettre a` C. de Beaumont, OC, IV, 965–7. Furthermore, even in Emile the same statements as in the Social Contract are repeated: one of the difficulties that have blocked the birth of public law is ‘‘la partialite´ des auteurs qui parlant toujours de la ve´rite´ dont ils ne se soucient gue´res ne songent qu’a` leur inte´rest dont ils ne parlent point. Or le peuple ne donne ni chaires ni pensions ni places d’Academies; qu’on juge comment ses droits doivent eˆtre e´tablis par ces gens-la`!’’, OC, IV, 837. 122 I will leave to one side, for the moment, the reference to the distinction between ancient jurists and the modern authors in relation to the definition of natural law that appears in the Preface to the Discourse on the origin of inequality, OC, III, 124–5, since this requires a separate analysis. I will limit myself to referring the reader to the essay by M. Reale, ‘Rousseau fra i giureconsulti romani’, and the more recent discussion by M. Panoff, ‘La loi naturelle dans la Pre´face du Discours sur l’origine et les fondements de l’ine´galite´ parmi les hommes de Rousseau’, in Annales Doctorales, II (1999), 65–83. 123 ‘Preface’ to the Second Discourse, in The Discourses and Other Political Writings, ed. V. Gourevitch (Cambridge: Cambridge University Press, 1997), 125–6; OC, III, 124.

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oppose scepticism on two opposite fronts: on the one hand, it is against the contemporary reformulations of rationalism which had a naturalistic and materialistic bias, and on the other, it opposes the resurgent forces of fanaticism and intolerance.124 The second assumption concerns the articulation of natural law and political law, the need to search for the foundations of society by going back to the state of nature: ‘‘Les Philosophes qui ont examine´ les fondemens de la societe´, ont tous senti la ne´cessite´ de remonter jusqu’a` l’e´tat de Nature’’, a necessity that Rousseau had also fully recognized.125 The third common assumption is the contractual one, in other words the fact of founding political obligation on the free consensus of those who surrender to it: ‘‘suivant la plus saine partie de ceux qui ont discute´ ces matieres’’, Rousseau affirms, ‘‘j’ai pose´ pour fondement du corps politique la convention de ses members’’.126 Nevertheless, Rousseau’s move to include himself within the modern tradition of natural law was accompanied by two moves by which he intended to radically distance himself from it. The first consists in the well-known methodological criticism that Rousseau made of all his predecessors: that while having justly felt the need to go back to the state of nature, ‘‘aucun d’eux n’y est arrive´’’.127 From this point of view the negative judgment challenges all earlier theories, which were incapable of stripping all the social attributes, passions, knowledge and the rationality that natural man had acquired from society. In this instance the accusation is unconcerned with political options, but Rousseau takes great care to specify exactly which aspect of each author he is attacking, thus demonstrating that he clearly understands that he is not dealing with a unanimous and unitary tradition: with regard to Hobbes he criticises the theory of the war of all against all; as to Cumberland and Pufendorf, the timidity of natural man; as to Locke, the analysis of conjugal society and the theory of property; as to Grotius, Barbeyrac and Burlamaqui, the theory of natural sociability, and so on. It is certainly not possible to examine here all the points in respect of which Rousseau distanced himself from his predecessors, nor the radically new way in which he set out the analysis of the state of nature and the birth of society.128 It is, however, possible to declare that his conclusions above all collided with the basic components of the science of natural law which Barbeyrac and Burlamaqui had meant to construct: the broad definition of natural law they had envisioned and most importantly causality that they had established between religion, morality and politics by incorporating natural religion in natural law. In reducing ‘‘proper’’ natural law to a small nucleus, to the two principles of self-love and compassion, Rousseau removes not only sociability, but also natural religion, the knowledge of divinity. This allows him to frame the problem of obligation discussed by his predecessors in an entirely new way, in the genealogical perspective of the hypothetical history of governments, and he succeeds in establishing the chronological primacy and conceptual autonomy of political obligation over the moral-religious within this perspective. Natural law in Rousseau no longer aims to guide man towards sociability as a way of escaping the state of nature, 124 On this we can see Rousseau’s assertions, which refer in particular to the Profession of Faith, but can also be extended to the whole of philosophy, in the Letter to Monseigneur de Beaumont, OC, IV, 996–7. 125 Even the Social Contract, although it did not describe the state of nature, presupposes that it is assumed to be the initial condition from which to deduce the principles of political law, in particular, I, VI, OC, III, 360; and in Emile the correctness of this retrograde procedure is underlined: ‘‘remontant d’abord a` l’e´tat de nature, nous e´xaminerons [. . .]’’, OC, IV, 837. 126 OC, III, 806. 127 OC, III, 132. 128 For a detailed analysis of the common points and the criticisms regarding earlier authors, and in particular the theorists of natural law, apart from the work by Derathe´, V. Goldschmidt, Anthropologie et politique. Les principes du syste`me de Rousseau (Paris: Vrin, 1974) is required reading.

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nor does it wish to dictate the content of positive laws, but it is aimed at determining the conditions that would ensure that this escape might lead to a legitimate society.129 This particular point reveals the second way in which Rousseau distances himself from his predecessors, and this time the criticism is both theoretical and political. Once they had posited the true foundation of political obligation, namely the free consensus of those who assume it, earlier natural lawyers had gone on to draw incorrect conclusions.130 Here the political differences become important, because Rousseau does not hesitate to apply to his predecessors the qualifications that they had used themselves, namely the antitheses of monarchism and republicanism. From this point of view, the authors that deviate from the truth earliest because of their political positions are the monarchist authors who, like Grotius, Hobbes and Pufendorf, hold that free consensus may give rise to unconditional subjection. However, it appears that in judging these three authors Rousseau deliberately distinguishes between them. Hobbes is a pro-monarchist and anti-republican author, whose principles are destructive towards all republics131; but Rousseau nevertheless shows him respect, not only for his genius and the depth of his ideas, but in a certain sense also for the moral and theoretical coherence with which he pursued his aim of defending the power of kings for better or for worse, without compromising his principles with opportunism. In order to do so he had certainly been forced to resort to sophisms, but while choosing the opposite camp—which for Rousseau was the wrong one—in his own way he remained faithful to the normative assumption of natural law. On the other hand, Grotius, basing the law on fact, systematically betrayed this assumption, justifying any type of political reality from unconditional slavery to the right of resistance. Rousseau seems to impute this betrayal of the normative dimension of natural law to the specific circumstances of his life, which led him away from public commitment to the service of a republic in need of protection and the subsistence guaranteed by a king. In contrast, the almost respectful silence towards Pufendorf seems to suggest that Rousseau judged this author to be pro-monarchist but not anti-republican. Despite having acknowledged the possibility that sovereignty was alien to the people and despite having also expressed his preference for monarchies, Pufendorf however did not hesitate to examine without prejudice the form of the democratic state, on many points correcting the ‘‘outre´’’ anti-republicanism of Hobbes. But I will return to this aspect at the end of this article. Alongside these pro-monarchist authors, we find authors like Barbeyrac and Burlamaqui, who, together with Grotius, receive harsher disapproval from Rousseau. Unlike the monarchists, Barbeyrac and Burlamaqui had well understood that subjection could not occur under all conditions, and thus the pact could not bring about all forms of sovereignty. However, they still applied this principle in a muddled way, an inconsistency which was once again directly tied to the fact that they sacrificed the quest for truth to the defence of different interests with which they had sided. In Barbeyrac’s case this was the justification of the English Revolution and also the defence of the rights of the kings and of the citizen’s oligarchies, which he served from time to time. In Burlamaqui’s it was purely and simply the defence of the oligarchic government of Geneva. On the opposite side there are the authors with whom Rousseau declared himself in agreement, defining them as republicans. In

129 For a recent appraisal of this aspect of Rousseau, see B. Bachofen, ‘Les conditions de la liberte´’. 130 As Rousseau affirms in the Letters Written on the Mountain, ‘‘par cette condition de la liberte´, qui en renferme d’autres, toutes sortes d’engagemens ne sont pas valides’’, OC, III, 807. 131 OC, III, 811.

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particular there were Sidney and Locke, in whom he recognised a perfect agreement over principles regarding how to deal with political arguments, principles that can be recognised in the common insistence on the inalienability of liberty and on the fundamental preoccupation of defending it against the inevitable tendency of governments to degenerate and abuse their power.132 Even so, while placing himself in the same political camp as Locke and ‘‘republican’’ defenders of the right of resistance, Rousseau ultimately judges the conceptual and political instruments that they had used to defend liberty to be theoretically incoherent and inefficient in practice. The theory of partial alienation, supported by Locke and the promoters of the right of resistance, and which Rousseau himself had accepted in the Discourse on Inequality,133 in fact resulted in an irresolvable quarrel at the heart of the social state between the state as a whole and any of its constituent parts over who should judge in any eventual violation of the nonalienated residual rights.134 This problem is identical to that posed by the contract of government, which Roussueau rejects precisely because it would presuppose, were it ever violated, that there was no superior entity which could pass judgement, and thus the state of nature could potentially continue to exist within the social state.135 Therefore, Rousseau comes to find the same inconsistency in all the doctrines that appealed for the right of resistance—be they radical and republican ones, or moderate and anti-republican ones—for all presupposed, if not a partage of sovereignty, at least the attempt to ‘‘faire l’e´conomie’’ of sovereignty as in Barbeyrac or Burlamaqui, implicitly accepting only forms of limited sovereignty or of mixed government.136 What is more, as the way in which these doctrines were used in Geneva demonstrated, they served only to deceive the people and to prevent them opposing the illegalities and injustices committed by those in government. Permitted only in case of serious abuses, the right of resistance practically became an instrument with which to accuse the people of sedition even when they demanded in entirely peaceful ways that their rights be respected. Abandoning therefore the theory of partial alienation, of the governmental contract and the supremacy of law that he argued for in the Second Discourse, in the Social Contract Rousseau recognises the validity of the criticisms made by absolutist authors towards the promoters of popular sovereignty and of the right of resistance. He thus inserts the theory of absolute sovereignty in the categorical context put forward by the defenders of inalienable popular sovereignty and of the subordinate role of those who governed, attempting to make it consistent through the revision of the theory of the pact. This implies the rebuttal of the doctrine of the pact of government, the abandonment of the idea of the supremacy of law in favour of the primacy of the general will, the reasoned development of the distinction between sovereignty and government, and selecting the means of preventing the abuses of government not in the demand for the right of resistance, but in the regular meetings of the sovereign people’s general assemblies. In consequence, the doctrine expounded by Rousseau in the Social Contract is not only a rebuttal of the theory of partage of 132

OC, 812. On the relations between Rousseau, Locke and Sidney, see G. Silvestrini, ‘Re´publicanisme, contrat et gouvernement de la loi’, Les Cahiers Philosophiques de Strasbourg, XIII (Spring 2002), 37–66. 133 OC, III, 178: ‘‘les sages meˆme virent qu’il faloit se re´soudre a` sacrifier une partie de leur liberte´ a` la conservation de l’autre’’. 134 Social Contract, I, VI, OC, III, 361: ‘‘Car s’il restoit quelques droits aux particuliers, comme il n’y auroit aucun supe´rieur commun qui put prononcer entre eux et le public, chacun e´tant en quelque point son propre juge pre´tendroit bientoˆt l’eˆtre en tous, l’e´tat de nature subsisteroit et l’association deviendroit ne´cessairement tirannique ou vaine’’. 135 Social Contract, III, XVI, OC, III, 432–3: ‘‘On voit encore que les parties contractantes seroient entre elles souls la seule loi de nature et sans aucun garant de leurs engagemens re´ciproques, ce qui re´pugne de toute manie´res a` l’e´tat civil’’. 136 J. Terrel, Les theories du pact social, 288.

sovereignty and of mixed government upheld by Barbeyrac and Burlamaqui, on the same footing as the ‘‘absolutist’’ doctrine of alienation, nor is it merely an assault on the way in which the theories of the natural lawyers had been put to use in Geneva to favour the government councils, but it is also as a re-evaluation of some aspects of his own thought as it had been presented in the Discourse on Inequality and in the Political Economy. It was a reexamination of the entire tradition of the right of resistance and of the theses supported by the authors that he considered republicans, as well as of the same reasoning that was used in Geneva to defend the popular party, for even this was, in his eyes, a prisoner of theoretical incoherence and a vacillation between an absolute and a limited conception of sovereignty.137 Nonetheless, this rethinking of earlier tradition, which drove him to appropriate the notion of absolute sovereignty in order to defend the liberty and the rights of the people and to limit the power of the governors, should not be interpreted as forsaking Locke to favour Hobbes, as has often been argued from Vaughan onwards. Rather, it is a revision carried out precisely to keep faith with the principles that he believed Sidney and Locke had fought for and had put into action, at least in part, under the emblem of a return to Pufendorf—the Pufendorf who was the ‘‘disciple of Hobbes’’ in the sense described by Fiammetta Palladini as someone who took up and rethought Hobbes, ‘‘choosing one Hobbes over the other’’ and deducing the true outcome of the premises that he had made.138 More to the point, it seems to me that Rousseau’s moderate attitude towards Pufendorf, which Derathe´ had noted, interpreting it as a sign that he recognised his indebtedness to this author’s thinking,139 can be understood by rereading the passages of the seventh book of the Droit de la nature et des gens in which Pufendorf, drawing on De cive and implicitly refuting the Leviathan, rethought Hobbes’s theory of the pact and analysed democratic sovereignty in a theoretically impartial way. These specific passages make it possible, in my opinion, to advance the hypothesis that Rousseau considered Pufendorf to be promonarchist but not anti-republican and that he was ever mindful of the reasoning of the German jurist when he constructed his theory of the social contract and of popular sovereignty, ‘‘overturning’’ Hobbes’s pact. Pufendorf’s theory of the pact is, as is well known, built on the recognition of three distinct stages: firstly, an agreement that gives birth to society and is drawn up among individuals; secondly, a decree by which the form of government is established; and finally, a second agreement to which the governed and governors give mutual assent. After having put the theory forward, Pufendorf felt it necessary to return to Hobbes’s theory of the pact in order to refute it at length. This leaves the impression that he aimed to correct the theories put forward in De cive by openly distancing himself from the more radically antidemocratic positions of the Leviathan. Indeed, it is in that work that Pufendorf sees the objective that the English philosopher meant to achieve in his political books as being most clearly expressed, namely that of 137 As Rousseau states in the Confessions, during his stay in Geneva in 1754 he had not found ‘‘les notions des lois et de la liberte´ assez justes, ni assez nettes a` mon gre´’’, OC, I, 405. On these themes, as well as on Rousseau’s attempt to validate Locke’s ‘‘appeal to the heavens’’, see G. Silvestrini, Re´publicanisme, contrat, 61–5. 138 F. Palladini, Samuel Pufendorf discepolo di Hobbes, 38–43. 139 R. Derathe´, Jean-Jacques Rousseau, 84. My reading of the relationship between Pufendorf and Rousseau differs somewhat from those of R. Wokler, ‘Rousseau’s Pufendorf: Natural Law and the Foundation of Commercial Society’, in History of Political Thought, XV, 3 (Autumn 1994), 373–402, who sees Pufendorf only as an adversary of Rousseau; of H. Rosenblatt, Rousseau and Geneva, in particular pp. 91– 3, 164, 206–7, who likens Pufendorf to Grotius, Barbeyrac and Burlamaqui, authors used to support the government of Geneva and as such all contested by Rousseau; and A. Dufour, L’ambivalence politique, particularly p. 62, who argues that while Barbeyrac was a liberal author, Burlamaqui’s position should be interpreted as a ‘‘infle´chissement autoritaire’’ carried out thanks to a return to Pufendorf.

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opposing himself to: ‘‘a` ces esprı¨ts se´ditieux, qui ont taˆche´, dans ce ˆ mettre au caprice de Sie´cle, de brider l’Autorite´ des Rois, et de la sou leurs Sujets’’. And to prevent rebellion against the kings by accusing them of breaking the pledges made to their subjects, ˆ tenir, qu’il n’y avoit point de ‘‘Hobbes se mit dans l’esprit de sou Convention entre le Roi, et les Sujets’’, thus attributing an absolute and unlimited power to the kings, releasing them from the obligations of a pact with their subjects. However, Pufendorf adds, ‘‘quoi qu’il soit extre´mement de l’inte´reˆt du Genre Humain, de maintenir inviolablement l’Autorite´ des Rois, et de la de´fendre contre les attentats des esprits mutins; il ne faut pas pour cela nier des ve´ritez e´videntes’’.140 Without going over all the passages of Pufendorf’s rebuttal of Hobbes, it seems important to underscore certain aspects of it. The first is that the text which he examines ‘‘en de´tail’’ is the De Cive, and yet the doctrine that is implicitly under attack is the theory of representation expounded in the Leviathan, which was aimed at removing the link between democracy and the actual formation of society as it was openly expressed in the chapter on the forms of government contained in the 1642 Treaty: ‘‘Ceux qui se sont assemble´s pour former une socie´te´ civile, ont de`s la` commence´ une de´mocratie’’.141 If, as Lucien Jaume has emphasised, precisely this ‘‘de´mocratie a` base de souverainete´ populaire’’ was for Hobbes the biggest epistemological obstacle in the construction of his theory of the state, he overcomes it by developing another thesis set out in the De Cive, namely the identification of the people with the sovereign, the first nucleus in the future theory of representation: ‘‘C’est le peuple qui re`gne en quelque sorte d’E´tat que ce soit’’.142 Now, it is just this link that Pufendorf aims to confound, defining it as ‘‘un jeu de mots, et une vaine subtilite´’’,143 since it separates the act of association from that of subordination. Although not going so far as to apply full juridical status to the people by virtue of the pact of association alone, he clearly gives them a political standing independent of the king, and this is especially evident from the interregna, which is a condition similar to the ‘‘espe´ce de De´mocratie’’ that springs from the first pact with which a community has decided to form a state.144 Moreover, in the particular case of the agreement which gives rise to the democratic form of government, Pufendorf takes it upon himself to demonstrate that the people can be a contracting party. In the De Cive Hobbes had contended that democracy is not constituted by means of pacts by each individual with the people, but by means of reciprocal pacts by individuals, ‘‘foreshadowing’’ Louis Althusser’s criticism of Rousseau: the impossibility of a contract whose object is the constitution of one of the contracting parties. No pact can in fact be made between the people and the 140

DNG, VII, II, §IX. Le Citoyen, VII, V, 170. Le Citoyen, XII, VIII, 222; L. Jaume, Hobbes et l’E´tat repre´sentatif moderne (Paris, 1986), 122–4. 143 DNG, VII, II, §XIV. I thank Fiammetta Palladini for having drawn my attention to the importance of these passages for an understanding of the criticism made by Pufendorf of the Hobbesian theory of representation. 144 DNG, VII, V, §VI; on the interregnum VII, VII, §VII. As concerns the results of the pact of association in Pufendorf, while H. Denzer, Moralphilosophie und Naturrecht bei Samuel Pufendorf (Munich, 1972), 170, argues that the people emerge as the juridical subject through the first pact, T. Behme, Samuel von Pufendorf: Naturrecht und Staat (Go¨ttingen, 1995), 123–30, believes that the passages from Pufendorf do not allow one to attribute to the people juridical capacity as a collective subject, but only as a mass of distinct individuals, and thus on this point reduces the distance to Hobbes. An intermediate position is taken up by M. J. Seidler, ‘‘‘Turkish Judgment’’ and the English Revolution: Pufendorf on the Right of Resistance’, in F. Palladini/G. Hartung (Hg.), Samuel Pufendorf und die europa¨ische Fru¨haufkla¨rung (Berlin, 1996), 82–104, which underlines how a collective status derives from the first pact brings individuals that comes before the act of submission, which allows one to attribute to these a certain independence, conceptual and real, in relation to the absolute authority of the sovereign, and starting from which Pufendorf elaborates, differently to Hobbes, a theory, embryonic but clear, of resistance. For the link between the interregnum and democracy see p. 93. 141 142

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citizen: not before the existence of the people, because they cannot be a contracting party until they actually exist and not after they are bought into existence, since this would be a pact made by the people with themselves. Indeed, given that the will of the people comprises the will of every individual, the people as such are free to release themselves from all obligations previously stipulated.145 Against this type of reasoning Pufendorf argues the need for the pact of subordination even in democracies, because, he declares, the pact between individuals only does not allow the founding of the obligation of obedience of each individual to the sovereign, and the simple promise of agreeing on the condition that the others would do the same would make the obedience of everyone dependent on that of all the others.146 In this way, he makes clear the possibility of a pact between the citizen and the people intended as two distinct subjects who cannot be assimilated into a promise made to themselves, which cannot produce a true obligation: Mais il faut savoir, que, dans un Etat Populaire, la difference qu’il y a entre chaque Citoien, et l’Assemble´e, qui de´cide des affaires publiques, n’est pas fonde´e sur une simple manie´re d’envisager diversement les meˆmes personnes; et que ce sont au contraire des personnes veritablement distinctes, quoi que de diffe´rente nature, qui ont chacune une volonte´ distincte, des actions diverses, et des droits tous diffe´rens [. . .] Ainsi rien n’empeˆche, qu’il ne se fasse une Convention entre chaque Citoien et l’Assemble´e du Peuple’’.147 Certainly, here Pufendorf is speaking of the second agreement, the so-called pact of subjection. Nevertheless, he declares that even this pact is superfluous, and implicitly locates the act of the birth of the people not after the first agreement, but after the decree by which the decision to form a democratic government was made. This involves an acceptance to subject one’s own individual will to the will of the majority. It therefore seems natural to ask whether it was Pufendorf’s reflections on Hobbes’s pact that inspired Rousseau—who aimed to establish the inalienable sovereignty of the people—to develop the theory of the pact of association only, understood as a pact between individuals and the community, a pact which, though contracting everyone to himself nevertheless preserves the distinction between two distinct subjects, a distinction necessary because the pact itself has binding powers: This formula shows that the act of association involves a reciprocal engagement between the public and private individuals, and that each individual, by contracting, so to speak, with himself, finds himself engaged in a two-fold relation: namely, as member of the Sovereign toward private individuals, and as a member of the State toward the Sovereign. But here the maxim of civil right, that no one is bound by engagements toward himself, does not apply; for there is a great difference between assuming an oblication toward oneself, and assuming a responsibility toward a whole of which one is a part.148 Welcoming Pufendorf’s criticism of the Hobbesian model of the pact, Rousseau discards the moment of the pact between single persons, deeming it incapable of producing obligation on the part of the individual, the vertical relation of subordination between the 145 Le Citoyen, VII, 7, 171–2. See also L. Althusser, ‘Sur le ‘‘Contrat social’’’, Cahiers pour l’Analyse, VIII (1967), L’impense´ de Jean-Jacques Rousseau, 20. 146 This type of objection to the Hobbesian theory of the pact matters above all for monarchies, as can be seen in DNG, VI, II, §XI, but Pufendorf argues that the pact of submission is also required for the democracies, at least inferred for all citizens by ordinance of the people’s assembly, see VII, II, §VIII. 147 DNG, VII, II, §VIII. 148 Social Contract, in ‘The Social Contract’ and Other Later Political Writings I, VII, 51; OC, III, 362.

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single person and the community, and places the convention that according to Pufendorf was at the basis of democratic government, not only at the birth of political society but also at the centre of its life, since every act of sovereignty is defined as a convention between the sovereign body and each of its members.149 Certainly, Althusser’s objection regarding the origin remains unanswered, but the origin of the people—or of sovereign power—through the contract appears in all the authors conceptually aporetic and factually plausible. It is the image recalled by Pufendorf of the Roman people meeting on the banks of the Tiber and tacitly deciding to join together that establishes the form of monarchist government before sovereignty is conferred on Romulus. In relation to this image, or that of the Genevans gathered together in the Cathedral of Saint-Pierre, certainly the idea that the association comes about after all the participants—one by one or all at the same time—have declared to the assembly their personal desire to subject themselves seems definitely more realistic than the notion of an exchange of promises made one at a time between each individual and all the others. But in my opinion this is not the only aspect that makes it possible to argue that Rousseau moulded his theory of popular sovereignty by rereading De Cive in the light of Pufendorf’s criticism. Whereas in the De Cive Hobbes had placed democracy at the root of all forms of state, only to then erase these assertions from the Leviathon, Pufendorf appears simultaneously to draw on and modify that thesis. He takes it up when he argues that democracy is historically the first form of government: J’ai mis au pre´mier rang la De´mocratie, et c’est par elle aussi que je vais commencer; non que je la croie la plus illustre forme de Gouvernement, ou la plus commode; mais parce qu’elle est ˆ part des Nations: certainement la plus ancienne parmi la plu outre qu’il est manifestement conforme a` la Raison, de supposer, que ceux, qui renonc¸oient a` l’e´tat de Liberte´ et de l’Egalite´ Naturelle, pour se joindre en un seul Corps, voulurent d’abord gouverner en commun les affaires de la Socie´te´. En effet, le moien ˆ les de s’imaginer, qu’un Pe´re de famille, qui apre`s avoir apperc¸u incommoditez d’une vie solitaire, entroit volontairement dans une Socie´te´ Civile avec d’autres semblables a` lui, oubliaˆt si fort en un moment son ancien e´tat d’inde´pendance, ou` il se conduisoit a` sa faintaisie dans tout ce qui regardoit sa propre conservation, ˆ mettre d’abord a` la volonte´ d’une seule personne en que de sou ˆ rete´ et son matie´re des affaires publique, d’ou` de´pendoient sa su avantage particulier? Il y a beaucoup d’apparence au contraire, que l’on suivit alors cette maxime, comme la plus e´quitable, que ce a` quoi tous les Membres de la Socie´te´ ont inte´reˆt, doit e´tre administre´ par tous en commun’’.150 It is reasonable to think that this passage was already well known to Rousseau, when, in the Discourse on Inequality, he asserts by implication that democracy is the first form of society, coming before the creation of the magistrates: ‘‘La Socie´te´ ne consista d’abord qu’en quelques conventions ge´ne´rales que tous les particuliers s’engagoient a` observer, et dont la Communaute´ se rendoit garante envers chacun d’eux’’, and adding, in order to explain his assertion: ‘‘Il ne seroit pas plus raisonnable de croire que les Peuples se sont d’abord jette´s entre les bras d’un Maıˆtre absolu, sans condition et sans retour, et que le premier moyen de ˆ rete´ commune qu’aient imagine´ des hommes fiers pourvoir a` la su et indompte´s, a e´te´ de se pre´cipiter dans l’esclavage’’.151 At the same time, however, after having declared that democracy is the oldest form of government, Pufendorf distances himself from the theses of the De Cive and dismisses the claim that

aristocracy and monarchy derive from the democratic form of government. To this end he introduces the distinction, which I have already alluded to, between embryonic democracy that derives from the first pact and democracy as a true and proper form of government identified with the acceptance of the majority principle.152 The presence of a double statute concept of democracy is also to be found in Rousseau, intended one moment as a birth of all societies, and in another moment as a specific form of government, which cannot be thought of as the source of the others. In the case of the second Discourse this duplicity is reflected in the difference that exists between the parturition of the nascent society and the origin of the different forms of government: without stating that monarchy and aristocracy derive from democracy, Rousseau however implicitly defines democracy as an extension of society brought about by the pact of association, in so far as it is instituted where men ‘‘garde´rent en commun l’Administration supreˆme’’.153 In the Social Contract the historic precedence of democracy understood as a nascent society matches the logical and chronological precedence of democracy, in relation to all forms of government. Indeed, to institute the government the sovereign body first acts as such by establishing with a law the form of government, then, ‘‘par une conversion subite de la Souverainete´ en De´mocratie’’, it nominates the leaders who will be in charge of the constituted government. Thus Rousseau substitutes Pufendorf’s triad pact (of agreement of association, decree, agreement of subjection) with the triad pact of association, law, and execution of the law.154 But this does not necessarily suggest an historic derivation of all the forms of government from the democratic one, seeing that in the chapter dedicated to aristocracy we read: ‘‘Les premieres socie´te´s se gouverne`rent aristocratiquement’’.155 Faced with this apparent incongruity, which appears to mark a radical break even as regards the treatment of the second Discourse, to me it seems possible to question if even this time Rousseau is not in reality using the double notion of democracy found in Pufendorf and, with necessary modifications, applying it to the distinction between sovereignty and government. Furthermore, the author of the Droit de la nature et des gens had centred his analysis of democratic sovereignty on three elements, which correspond to the three characteristics of Rousseau’s ‘‘republic’’: firstly, a fixed time and a place to assemble for the discussion of public affairs; secondly, the introduction of the principle of majority; thirdly, on the basis of a distinction between ordinary and extraordinary affairs, the institution of magistrates— commissioners—established by the people to deal with ordinary affairs in their name. And, still in the Droit de la nature et des gens we find the definition of democracy as the identity of governed and governors, because in it ‘‘ceux qui commandent, et ceux qui obe´ı¨ssent, sont physiquement les meˆmes personnes, et ne diffe´rent que par une Re´lation morale’’.156 Finally, when he discusses the distinction between absolute power and limited power, Pufendorf makes it clear that this distinction does not apply to democracies, because, ‘‘comme l’Assemble´e Souveraine est compose´e de tous les Citoiens, et qu’ainsi personne hors de la` n’a acquis aucun droit par les de´liberations qui y ont e´te´ prises, rien n’empe`che que le Peuple ne les re´voque ou ne les changes toutes les fois qu’il le jugera a` propos’’.157 In keeping with these observations, Rousseau goes on to differentiate between the obligation that emerges for the individual from public deliberation and the absolute autonomy of the sovereign body with regard to its own deliberations:

152 153 154

149 150 151

OC, III, 374. DNG, VII, V, §IV. OC, III, 180.

155 156 157

DNG, VII, V, §VI, VIII. OC, III, 186. Social Contract, III, XVII, OC, III, 433–4. OC, III, 406. DNG, VII, VII, §I. DNG, VII, VI, §VIII.

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it is therefore contrary to the nature of the body politic for the Sovereign to impose on itself a law which it cannot break. Since the Sovereign can consider itself only in terms of one and the same relation, it is then in the same situation as a private individual contracting with himself: which shows that there is not, nor can there be, any kind of fundamental law that is obligatory for the body of the people, not even the social contract.158

Faced with these close comparisons one could well reflect again on the occasionally unclear relationship between the terms and concepts of republic and democracy that is found in Rousseau’s work. And in doing this, one could wonder if one should take seriously the Huguenot Elie Luzac’s interpretation of Rousseau’s political theory and turn this upside down in an attempt to see the theory as simply extending to all forms of state those characteristics that Pufendorf had attributed only to the democratic government.159

Social Contract, I, VII, in ‘The Social Contract’ and Other Later Political Writings 52; OC, III, 362.

159 On this judgement of Luzac see above, note 1; on Luzac’s criticisms of Rousseau see W. R. E. Velema, Enlightenment and Conservatism in the Dutch Republic. The Political Thought of Elie Luzac (1721–1796) (Assen/Maastricht, 1993), 61–72.

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