THE PRESENT STATE OF GERMANY
NATURAL LAW AND
ENLIGHTENMENT CLASSICS
Knud Haakonssen
General Editor
This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.
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Introduction, annotations, note on the text, bibliography, index © 2007 by Liberty Fund, Inc.
Margin notes have been moved from the margin of the paragraph in the print edition to precede the paragraph in this eBook, in a smaller font.
Cover image: The portrait of Samuel Pufendorf is to be found at the Law Faculty of the University of Lund, Sweden, and is based on a photoreproduction by Leopoldo Iorizzo. Reprinted by permission.
This eBook edition published in 2013.
eBook ISBNs:
978-1-61487-057-9
978-1-61487-205-4
CONTENTS
Pufendorf’s Preface to the First Edition of 1667
Preface to the Second Edition (1706)
Samuel Pufendorf (1632–94) began his academic career at the University of Heidelberg in 1661 in the arts (i.e., philosophy) faculty as a professor of international law (ius gentium) and philology. He received this appointment on the basis of his first jurisprudential work, the Elements of Universal Jurisprudence (1660),1 which he had dedicated to the Palatine elector, Karl Ludwig. At Heidelberg, Pufendorf set about the revision of his immature effort, as he later called it, through a series of academic dissertations2 that culminated in his massive On the Law of Nature and of Nations (1672) and its pedagogical distillation The Whole Duty of Man (1673), both of which soon made him famous throughout Europe. In 1667, a year before assuming a professorship at the newly created University of Lund, in Sweden, he published the infamous On the State of the German Empire under the pseudonym Severinus de Monzambano, a fictive Italian writing to his brother, Laelius, about his travels through Germany. This comparatively slight volume on German constitutional law generated intense interest, and the academic controversy it ignited easily equalled the famous “Scandinavian quarrel” that arose later over Pufendorf’s main natural law writings.3
Much less known today than these works, the Monzambano, as it was soon called, seems like an occasional tract relevant only to the circumstances of its origin. Even so, its influence lasted for more than half a century, and it became part of the historiography that was integral to natural law as a genre.4 More significantly, though, the piece has a strong philosophical subtext and shares basic features with many of Pufendorf’s other writings: the mutuality of theory and practice, a strong empiricism or realism, and opposition to scholastic categorization and argument—all characteristic of his “modern” natural law.5 Moreover, its historical sweep and detail match Pufendorf’s national histories of Sweden and Brandenburg and the broader An Introduction to the History of the Principal Kingdoms and States of Europe (1682), which he wrote after 1677 upon leaving academia to become Swedish state historian and, in 1688, official historiographer of Brandenburg. Finally, its controversial remarks on religion and politics point ahead to Pufendorf’s Of the Nature and Qualification of Religion in Reference to Civil Society (1687) and The Divine Feudal Law (1695). It seems appropriate, therefore, that Monzambano was both an early and a late work of Pufendorf, the latter in the form of a second edition carefully prepared by him shortly before his death and published posthumously in 1706. It is perhaps the most representative item in his entire corpus.
Background, Political Setting, and Publication Details
Pufendorf’s reasons for this description of the empire’s history and constitution remain unclear. One explanation found in some early biographies and, through Heinrich von Treitschke, used as the basis of many later accounts must be ruled out: that he wrote the work after being passed over for a position in the more prestigious law faculty at Heidelberg, attempting to prove that he was in fact the more deserving candidate.6 There was no such vacancy at the time, and Pufendorf would have been unqualified for and uninterested in it had there been one.7 Still, this false account of his intentions may have skewed the reception of the work in later periods.
Internal evidence such as the Imperial Diet of 1663 and the dismissal in 1664 of Baron von Boineburg (chief minister in Mainz and an early supporter of Pufendorf’s)8 places the supposed journey of the work’s fictive Italian narrator in the period 1663–64. These years also saw a renewed Turkish threat against the empire and a heightening (in 1665) of the so-called Wild fang streit (alluded to several times in the work). This was a bitter, sometimes violent, dispute between the Palatinate and several of its neighbors over the former’s vigorous exercise of a historical claim to limited jurisdiction over illegitimate and stateless persons, not only in its own but also in surrounding territories. Given the demographic and financial stakes involved for Karl Ludwig, whose territories had been devastated and depopulated by the Thirty Years’ War, Pufendorf and other Heidelberg professors were enlisted in the heated pamphlet war that accompanied the actual hostilities. For his part, Pufendorf issued a short response to a tract by the famous polyhistor Johann Heinrich Bökler, who was in the service of Mainz; and around the same time, he composed the Monzambano, which Karl Ludwig was variously said to have encouraged, assisted, or even coauthored.9 Though mainly a regional dispute, the conflict had broader import because it involved legal claims based on historical precedent, the relations of territorial sovereigns to one another and to the emperor, and appeals to external powers. (The emperor supported Mainz, while Karl Ludwig sought the support of France and Sweden, the formal guarantors of the Peace of Westphalia.) All the while, the empire as a whole confronted