THE ELEMENTS OF
UNIVERSAL JURISPRUDENCE
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.
The cuneiform inscription that serves as our logo and as a design element in Liberty Fund books is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash.
Introduction, annotations, note on the text, bibliography, index © 2009 by Liberty Fund, Inc. The text of this edition is a reprint of the translation by William Abbott Oldfather of Elementum jurisprudentiae universalis libri duo, published in 1931 by Clarendon Press.
Cover art: The portrait of Samuel Pufendorf is 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:
Kindle 978-1-61487-058-6
E-PUB 978-1-61487-206-1
CONTENTS
TWO BOOKS OF THE ELEMENTS OF UNIVERSAL JURISPRUDENCE
Bibliography of Works Cited in the Introduction and Notes
Index
Pufendorf’s earliest work, the Elementorum jurisprudentiae universalis libri II (Two Books on the Elements of Universal Jurisprudence) marks the starting-point of his career as a lecturer on natural law and of the emergence of the modern natural-law tradition in Germany. Dedicated to Karl Ludwig, Elector of the Palatinate, one of the most splendid and enlightened rulers in seventeenth-century Germany, the work secured Pufendorf a professorship in international law and philology at the University of Heidelberg, the first professorship of that kind in Germany and one that included natural law in its brief. The subsequent establishment of natural and international law as university subjects in Germany had a strong impact on the development of enlightened despotism and on the great law codifications in Prussia and Austria at the end of the eighteenth century.1
Though overshadowed by Pufendorf’s larger work on natural law, De jure naturae et gentium, and its textbook abridgement, De officio hominis et civis juxta legem naturalem, the Elements already contains essential features of his mature theory. What distinguishes it from those later works is the specific organization of the book, which methodologically follows the reformed, Euclidean Aristotelianism of his mentor Erhard Weigel, a mathematician and philosopher at the University of Jena (1625–99). Pufendorf’s aim as articulated in the preface to the Elements was to develop natural law as a demonstrative science modeled after the mathematical disciplines. He saw the traditional denial that a moral science was possible as a misunderstanding of the Aristotelian doctrine of demonstration. In a scientific proposition, necessity does not refer to the subject of the proposition as distinguished from the predicate, but to the necessary connection of subject and predicate that can be demonstrated by some undoubted axiom or principle. This interpretation of Aristotelian Apodeixis as a universally applicable method of demonstrating necessary relations in any given field of knowledge—in contrast to its traditional limitation to the theoretical disciplines of mathematics, physics, and metaphysics2—is taken over by Pufendorf from Weigel’s Analysis Aristotelica ex Euclide restituta (Aristotelian Analytics as Restored from Euclid) of 1658.3 According to Pufendorf, the method is applicable also to human actions, for though they depend upon the free will, they can be an object of demonstration as far as the “rectitude . . . in their order according to laws” is concerned.4 Like the Analysis Aristotelica, the Elements is arranged as a system of definitions and (rational and experimental) principles, from which propositions about specific matters and their relations are derived by syllogism.5 To make the text more readable, Pufendorf did not introduce the propositions following the principles, as the order of logical inference would demand, but added them to each definition or principle as a kind of scholion containing a detailed exposition of particular matters subsumed under the general title.6 Here Pufendorf often draws on sources that are not explicitly cited (especially Roman, Hebrew, and canon law) but that are discussed in a critical manner despite the syllogistic structure.
The definitions contained in the first book of the Elements concern basic moral and legal concepts that constitute the doctrine of moral entities [entia moralia]. In contradistinction to physical entities, which are qualities and processes resulting from the inner principles of natural substances (and thus ultimately from divine creation), moral entities are instituted by reasonable creatures who impose some rule on their freedom of acting. The authorship of such rules is twofold: on the one hand God who does not want “that men should spend their lives like beasts without civilization and moral law” and on the other hand man acting according to convenience and human requirements.7 Starting with the definition of human action as voluntary behavior whose effects are imputed to the agent, Pufendorf divided such action according to its object, principles, affections, and effects and thus developed a view of the moral world as a hierarchically arranged tree of definitions that embrace the central legal concepts in an allegedly self-contained and complete system. The most important concepts are “state” [status], that is, a configuration of rights and duties that constitute a kind of moral space for persons and their actions;8 and the “moral person” [persona moralis], that is, one or more human beings considered under whatever state they have in communal life.9 Like all moral entities, moral persons do not subsist in themselves but are “modes” that arise from voluntary imposition and are to be distinguished from their natural bearers. A man will therefore bear several moral persons or roles in social life.10 Nonetheless, moral persons (like moral actions and things) are considered like substances (within the sphere of moral entities), for they themselves also bear other moral entities considered as moral “affections” [affectiones] or qualities.11 The most important of these are the operative moral qualities of “obligation,” “right,” and “authority,” which are correlated among each other and are ultimately grounded in “law” conceived as a decree of a superior who has the authority to direct the actions of his subjects.12 While “obligation” [obligatio] denotes “an operative moral quality by which some one is bound to furnish, allow, or endure something,”13 the corresponding quality arising in the person to whom one is bound is named a “right” [ius], an