Rousseau, Pufendorf and the eighteenth-century natural law tradition, «History of European Ideas»,...

Rousseau, Pufendorf and the eighteenth-century natural law tradition§

Gabriella Silvestrini

Universita degli Studi del Piemonte Orientale ‘‘Amedeo Avogadro’’, Italy

1. Introduction

The tightly interwoven relationship between Rousseau’spolitical theory and the modern school of natural law, in particularPufendorf’s doctrine, was discerned from the beginning and hasbeen declaredmany times since.1 Yet, while a review of the sourcesreveals unanimous agreement in seeing the close comparison thatRousseau makes with the theories of earlier proponents of naturallaw as decisive, the conclusions drawn from the nature of thiscomparison and, above all, on its outcomes are highly varied andsometimes even diametrically opposed. On one side there arethose who, like Charles E. Vaughan, see Rousseau’s reflections as acoherent and radical refusal of the theory of natural law, or at least

as an attempt to substitute it with the concept of GeneralWill.2 Onthe other there are those who, following Franz Haymann andRobert Derathe, albeit in different ways, underline Rousseau’sfaithfulness to the central proposition of natural law, namely theidea of a natural law that is prior to positive law,which they believeprevented him from discerning an early and clear formulation ofjuridical positivism and made it possible to see him as a precursorto Kant, rather than as a forerunner of Hegel.3 There is also no

History of European Ideas 36 (2010) 280–301

A R T I C L E I N F O

Article history:

Available online 16 March 2010

Keywords:

Protestant natural law

Democracy

Tolerance

Division of sovereignty

Right to resistance

Barbeyrac

Burlamaqui

Rousseau

Pufendorf

A B S T R A C T

The relationship between the political theory of Rousseau and modern natural law continues to be the

subject of debate, bothwith 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

performbyconstructingaparticularversionof this tradition,namely thatofusingthescienceofnatural 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 Rousseauwas 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

republicanpolitical theoryRousseau tookupandoverturned theanalysis ofdemocratic sovereigntycarried

out by Pufendorf, who in opposing the ‘‘pro-monarchist’’ excesses of authors such as Hobbes andHorn had

unhesitatingly demonstrated the complete validity of democratic sovereignty.

� 2010 Elsevier Ltd. All rights reserved.

§ 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] 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’hypothese de Pufendorf sur la formation des Societes’’ (p. 63), butwith the

difference ‘‘que la ou cet Auteur pose un principe applicable a toute Societe civile, le

votre ne l’est qu’a la democratie’’ (p. 61). R. Hubert, Rousseau et l’Encyclopedie (Paris,

1928), 103, had also pointed to Pufendorf as one of Rousseau’s sources.

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 Societe 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 fromboth these positions.4

In connection with the problem of whether to categoriseRousseau’s ideas either as a continuation or as a rejection of themodern tradition of natural law, even the connection that he hadwith some of the earlier authors’ specific doctrines has been thesubject of entirely contradictory assessments. These vary fromthose who, by degrees, make him out to be a Hobbesian and ananti-Hobbesian, a Lockian and an opponent of Locke, and discipleand critic of such authors as Pufendorf, Barbeyrac and Burlamaqui.

In the following pages I would like to return to the subject of therange and nature of the natural law heritage contained inRousseau’s ideas, by taking one of the essential theses of RobertDerathe’s book as my starting point. The principal merit of thisscholar has been his demonstration of the way that Rousseau’spolitical thought is comprehensible only if it is considered as a re-examination of the doctrines developed by modern theorists ofnatural law. Such a re-examination implies an appropriation of theconceptual instruments used by these authors and a simultaneouseffort to take a critical distance in relation to their conclusions,regarding which Rousseau had largely provided ‘‘solutionsnouvelles’’. According to Derathe the originality of Rousseau’sapproach was encapsulated in the democratic inspiration of theSocial Contract.5

Having recognised both Rousseau’s originality and the debtsthat he owed to his predecessors, Derathe was nevertheless baffledby the intensity of the polemic and even the acrimony which theGenevan revealed when accusing the jurists of having concealedthe truth to serve their own interests and of sacrificing the rights ofthe people in order to serve the interests of the princes. Even moreincomprehensible to him was that Rousseau levelled these attacksmost directly against Grotius and Barbeyrac (an anti-absolutistauthor and, according to Derathe, a sincere liberal) while at thesame time recognising the exceptional genius of the monarchistHobbes and excluding Pufendorf, who was much more of anabsolutist than Barbeyrac, from his polemics.

Derathe believed that the scathing judgement of Barbeyrac inChapter II, Book II of the Social Contract was particularly‘‘inexcusable’’. This was the chapter in which Rousseau, arguingagainst the theory of the parts of sovereignty, affirms thatsovereignty is indivisible:

It would be difficult to exaggerate how much this lack ofprecision has clouded the conclusions of writers on matters ofpolitical right when they sought to adjudicate the respectiverights of kings and peoples by the principles they hadestablished. Anyone can see in chapters three and four of thefirst Book of Grotius how that learned man and his translatorBarbeyrac get entangled and constrained by their sophisms,fearful of saying too much or not saying enough according totheir 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 isdedicated, spares nothing to despoil peoples of all their rights,

and to invest kings with them as artfully as possible. This wouldcertainly also have been to the taste of Barbeyrac, who dedicatedhis translation to KingGeorge I of England. But unfortunately theexpulsion of James II, which he calls an abdication, forced him tobe onhis guard, to equivocate, to be evasive, in order not tomakea usurper of William. If these two writes had adopted the trueprinciples, all their difficulties would have been solved, and theywould always have been consistent, but they would have sadlytold the truth and paid court only to the people. Now, truth doesnot lead to fortune, and the people confer no ambassadorships,professorships or pension.6

Why does this chapter contain such criticism of two authorswho, in the Discourse on Inequality appear to be presented in a verydifferent light? In the Dedication to Geneva Grotius’s nameappeared alongside that of Tacitus and Plutarch among the booksthat the father read to ‘‘nourish his soul with the most sublimetruths’’,7 just as Barbeyrac’s authority was invoked in a note to theDiscourse on Inequalitywhich was added specifically to support thetheory of the inalienability of liberty. And why was Pufendorf notmentioned in this context, despite the fact that he had dedicated achapter of his treatise to the doctrine of the parts of sovereigntyand had also been explicitly mentioned, in the same passage of theSecond Discourse containing the note on Barbeyrac, as the authorwho had justified the alienation of liberty?8

Inorder to answer, at least inpart, thesequestions, Iwill considercertain explicit judgements made by Rousseau of his predecessorsand will attempt to explain them by shedding light on theirtheoretical significance as well as by demonstrating how they formpart of a taxonomy based, in my opinion, on precise criteria. In thisway, instead of making an external comparison between thetheories in an attempt to resolve the question of Rousseau’s loyaltyor lack of loyalty to the idea of natural law, and therefore also theissue of the continuity or the radical break that his thoughtrepresented, I intend to carry out a preliminary task, namely that ofattempting to rationalise the criteria by which he judged hispredecessors and placed his own ideas in relation to them. In otherwords, instead of asking whether Rousseau belonged whole-heartedly to the modern school of natural law, I believe it is moreuseful to attempt to understand first of all if and how he believedthere to be a ‘tradition’ of natural law, how he conceived andconstructed it, where he perceived its continuities and fractures tobe and, above all, what position he had intended to assume inrelation to it. It seems tome that this type of inquiry allows one tobemoreprecise, compared towhat has gonebefore, about themeaningof the criticism that Rousseau had made of earlier authors, and tounderstand howand if he thought hewasmaking use of their legacywhile simultaneously distancing himself from it.

2. Hobbes, Grotius and Barbeyrac in the Social Contract

At first glance the way that Rousseau’s Social ContractmentionsHobbes, Grotius and Barbeyrac is surprising. Grotius and Hobbes

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 pensee 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 elaborer ses propres principes qu’en argumentant contre les

jurisconsultes et les ecrivains de l’ecole du droit naturel. Sans etre leur disciple,

et tout en se donnant pour leur adversaire, il reste, beaucoup plus qu’il ne l’a cru lui-

meme, leur debiteur’’.

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 completes, 5 vols., ed. B.

Gagnebin, M. Raymond (Paris, 1959–1995), using the abbreviation OC.7 OC, III, 118.8 ‘‘Je negligerai, si l’on veut, l’autorite de Barbeyrac, qui declare nettement d’apres

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 maıtre’’, 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.

G. Silvestrini / History of European Ideas 36 (2010) 280–301 281

are in fact linked together almost from the very beginning of thework (in Book I, Chapter II) and are both stigmatised for havingpromoted the unlimited power of kings over their people. They arecompared to Caligula and ultimately likened to Aristotle for havingupheld the idea of a natural inequality among men and the idea ofslavery as a natural condition.9 Then, in the remainder of the firstbook, Grotius’s name appears only as a polemical target for thefurious criticism of those who supported the theory of theinalienability of the freedom of individuals and of peoples, whilePufendorf’s name, despite having been cited on this point in theDiscourse of Inequality, does not appear at all.10 In Chapter II, BookII, we find the passage cited earlier, where the association ofHobbes with Grotius gives way to that of Grotius with Barbeyrac,both of whom are vehemently attacked for having defended therights of kings at the expense of the rights of the people. At the endof Book III Grotius’s authority is invoked to argue that even thismonarchist author recognised the rights of individuals to reclaimtheir natural freedom and their property by leaving the country.11

Finally, in the penultimate chapter of the Social Contract, dedicatedto civil religion, we encounter a somewhat unexpected eulogy toHobbes and his theory of the relations between politics andreligion ‘‘Of all Christian Authors the philosopher Hobbes is theonly one who clearly saw the evil and the remedy, who dared topropose reuniting the two heads of the eagle, and to returneverything to political unity, without which no State or Govern-ment will ever be well constituted. But he must have seen that thedomineering spirit of Christianity was inconsistent with hissystem, and that the interest of the Priest would always bestronger than that of the State. It is not so much what is horribleand false as what is just and true in his politics that he has madeodious’’. As an explanation of this clear reversal of the generallyaccepted interpretation of Hobbes, Rousseau inserts a cuttingremark about Grotius. Citing a letter from Grotius to his brotherreproduced by Barbeyrac in his Preface to theDroit de la guerre et dela paix, he invites the reader to observe: ‘‘See among other things, ina Letter of Grotius to his brother of 11 April 1643, what that learnedman approves and what he disapproves of in the book De cive. It istrue that, being inclined to be indulgent, he seems to forgive theauthor the good for the sake of the bad; but not everyone is solenient’’.12

In that letter Grotius had declared his approval of those aspectsof the treatise on the citizen that he found were in favour of thekings, but did not approve ‘‘les fondemens sur lesquels l’Auteuretablit ses opinions’’, namely the state of nature as a state of warand the religious consequences that he drew from it, which werethat it was the duty of every citizen to at least outwardly observethe public faith prescribed by the sovereign.13 Once again, then,Rousseau underlines that the ‘‘bad’’ shared by Grotius and Hobbesis to be found in their shared monarchist positions. His judgementonwhat he defines as the ‘‘good’’, namely the doctrine of thewar ofall against all and Hobbes’s Erastian position in religiousmatters, isless clear since Rousseau had previously had cause to refuteHobbes’s doctrines on both these points.

Nonetheless, despite having condemned ‘‘The horrible systemof Hobbes’’ and the senseless system of naturalwar of all against all

caused by the fervour to establish despotism and passiveobedience,14 Rousseau had mitigated his judgement on this aspectof Hobbes’s doctrine which, with the right alterations, could havebeen contained within his own theory: ‘‘Hobbes’ error is thereforenot to have established the state of war among men who areindependent and have become sociable but to have assumed thisstate to be natural to the species, and to have given it as the cause ofthe 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 theprinciple of natural sociability that Grotius had instead argued forand which Rousseau had clearly rejected in the Discourse on

Inequality. Vice versa, the eulogising of Hobbes as the onlyChristian author who had really dared to reunite the ‘‘two heads ofthe eagle’’ is exaggerated to say the least and seems to beparticularly unfair towards Grotius, who had not only attributedthe ius circa sacra to the civil magistrate, but had done sowhile alsoarguing for the right of conscience and for tolerance betweendifferent faiths.16 Nor should it be forgotten that in the Letter to

Voltaire the assertion of the full right of conscience had beenpresented in direct opposition to what ‘‘the Sophist Hobbes’’ hadargued, and that in the Geneva Manuscript the intolerant had beendefined as ‘‘a man of Hobbes’’, and intolerance as the war of allagainst all.17 It is therefore astonishing that at the end of the Social

Contract Rousseau finished by discarding his criticisms of Hobbeson this point and presented him as the true champion of thatwhich, in the Letters Written from the Mountain, he would define asone of the fundamental principles of Protestantism, namely thereunion of Church and State and the conferral of legislative powerin religious matters to the sovereign.18

How, therefore, can we explain this eulogising of Hobbes atGrotius’s expense at the end of the Social Contract, which seemsto overturn the equal standing held by the two authors at thebeginning of the work? This association was certainly nothaphazard or isolated, since it also appeared at the beginning ofthe summary of the Social Contract contained in book V of Emile:‘‘When I hear Grotius praised to the skies and Hobbes coveredwith execration I see how far sensible men read or understandthese two authors. The truth is that their principles are exactlythe same: they only differ in their expression. They also differ intheir method. Hobbes relies on sophisms, and Grotius on thepoets; all the rest is the same’’.19 Moreover it is odd that theexpression ‘‘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 passagePufendorf gave his judgement of Hobbes within the context of abrief outline of the discipline of natural law, which he had beencalled to teach at the Heidelberg Academy in what was the firstuniversity professorship in the subject. The passage praisedHobbes for the depth of his ideas and, while admitting that hehad strayed from the truth in some instances, particularly withhis dreadful religious principles, Pufendorf had insinuated that

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, Preface du traducteur, XXXII.

14 The State of War, in Rousseau:’The Social Contract’ and Other Later Political

Writings, ed. V. Gourevitch (Cambridge: CambridgeUniversity 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. Lagree, La raison

ardente. Religion naturelle et raison au XVIIe siecle (Paris, 1991), particularly, 228ff.; R.

Tuck, Philosophy and Government 1572–1651 (Cambridge, 1993), 179ff.; J. Saada-

Gendron, ‘Hugo Grotius et le jus circa sacra’, in N. Pique and G.Waterlot, Tolerance et

Reforme. Elements pour une genealogie du concept de tolerance (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.

G. Silvestrini / History of European Ideas 36 (2010) 280–301282

his more active critics were in fact those who ‘‘had read andunderstood it the least’’.20

The resonance between Pufendorf’s words and those ofRousseau’s Emile does not seem accidental and suggests that theduet between Hobbes and Grotius staged by Rousseau in the SocialContract—first linking them together only to later to set themapart—is not a response to the simple rhetorical need of filling thetext with stinging invectives to hold the interest of the reader, andis even less a reflection of the black and persecutory humour thatJean-Jacques poured into his writing. In light of this reference tothose who exalted Grotius and abhorred Hobbes, Reausseau’sexcessive praise of Hobbes at the expense of his counterpointGrotius appears to have been used as a polemical tactic with aspecific objective and was based on the full knowledge of thedifferent assessment that Grotius, Pufendorf and Barbeyrac hadmade of Hobbes’s thought rather than being a general provocativeposition taken against Hobbes’s bad reputation. What had in factprompted Barbeyrac to cite Grotius’s comments regarding De cive

in his Prefacewas the need to prove that theDutch jurist’s doctrineswere of no use to the supporters of tyranny and ‘‘que l’idee qu’ilavoit du Pouvoir des Souverains, et de l’obligation des Sujets, etoitfort au dessous de cette Autorite Despotique et illimitee que lesFlatteurs des Princes leur attribuent’’.21 Furthermore, whencomparing Grotius and Hobbes, he did not fail to recognise themerits of the latter, in particular the meditative genius that wascapable of bringing to light ‘‘very useful’’ truths that no one elsehad seen, but he also compared this ability to one which cansometimes be found in poisonous animals or plants. Moreover,Barbeyrac’s setting of Grotius against Hobbes was more thanoccasional. On the contrary, it was a central element of theoperation carried out in the translations of Pufendorf and Grotius,namely that of creating a tradition of natural law perceived as astudy of moral philosophy, a tradition that in fact orbited aroundGrotius and Pufendorf and maintained a clear distance from suchauthors as Machiavelli, Hobbes and Spinoza.

So from this point of view it seems legitimate to ask whetherRousseau utilised the comparison between Hobbes and Grotius todiscredit Grotius and, in doing so, to attack not only Barbeyrac’sinterpretation and application of these two authors’ ideas but alsothe entire construct of the tradition of natural law that derivedfrom 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 howRousseau reproves Grotius and Barbeyrac for having lackedprecision and having drawn indistinct conclusions about ‘‘political

right’’ from their principles just when they needed to judge the‘‘respective rights of kings and peoples’’, thus contradictingthemselves and being confused, ‘‘fearful of saying too much ornot saying enough according to their views, and of offending theinterests they had to reconcile’’. Perhaps it would be stretchingthings to imagine that Rousseau was familiar with Grotius’s earlyworks and rebuked him for having opportunistically abandonedhis Republican principles and for choosing instead to defend therights of kings in order to ingratiate himself with Louis XIII towhomhe looked for protection, even though this change did not gounnoticed in the eighteenth century, having been mentionedfavourably by Pierre Bayle.23 But certainly, by pointing out thecontradiction between the monarchist attitude expressed in thededication to George I and the approval he bestowed on theGlorious Revolution, an accusation of opportunism can be madetowards Barbeyrac and the political and theoretical position thathe claimed to want to support in the dedication to the British king:‘‘je ne me propose ici, que de joindre ma foible voix au concertpublic de tous ceux qui ont a coeur la liberte de l’Angleterre, etl’interet commun des Protestants’’.24 The link made between theEnglish defence of liberty and that of the Protestant cause mightappear to be a widely held and almost obvious position in the anti-Catholic pamphlets and books that on both sides of the Channelhad reacted to the different outcomes of the political clashbetween Catholicism and reform. But what this ‘‘liberte del’Angleterre’’ and, even more so, ‘‘l’interet commun des Protes-tants’’ actually were was certainly not obvious nor was it aforegone conclusion in the religious and political landscape of theearly eighteenth century. On the contrary, what Barbeyrac hadintended to produce concretely by his indefatigable work as awriter, journalist and translator was a certain version of thatliberty 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 scantoriginality and has only recently been the subject of serious study.This is despite the fact that for some time he has been recognisednot only as a prominent figure in the second generation of theRefuge, which was faced with the problem of assimilation once thehope of a return to France was dashed, but also as an author whowas decisive in outlining the main features of natural law, whichspread in the first half of the seventeenth century and became oneof the most important cultural backgrounds to the Enlightenment,

20 S. Pufendorf, De jure naturae et gentium, in Gesammelte Werke, vol. IV, 1, ed. F.

Bohling, 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, Preface 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, fromwhom it had derived. However, Tuck did

not place Barbeyrac’s explanation into context, andmerely 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 Rousseauwas aware of Barbeyrac’s intentions and intended to criticise

them.

23 Avis important aux Refugiez (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 themonarchist 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 idees politiques du Refuge: Bayle et Jurieu’, in Conscience

et conviction: Etudes sur le XVIIe siecle (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’, inHistory of Political Thought, XVII (1996),

n. 4, 523–54; M. C. Pitassi, ‘Refuge e esprit republicain: 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

modele politique et institutionnel dans la France des Lumieres (Aix-Marseille, 2001),

31–64, 237.


particularly the French Enlightenment. For this particular reasonhis work offers a glimpse into one of the decisive points of contactbetween Protestantism and the Enlightenment.26

A French Huguenot from the Diaspora, Barbeyrac was an exilefirst in Lausanne, then Berlin, then again in Lausanne and finally inGroningen and was permanently accompanied by the whiff ofheresy and in constant conflict with the reformist orthodoxies.After having been the victim of the intolerance of the CatholicFrench monarchy, he appears to have pursued a wide-rangingpolitical and cultural project: that of contributing to building realunity in the Protestant world and to giving it a clear identity, onewhichwe could define—using an anachronistic term—as the face ofeighteenth-century European liberal Protestantism.27 His transla-tions and commentaries bind together intellectual, religious,political and existential events and movements that had crossedpaths several times before: the French Calvinists of the Refuge andthe English exiles; Lutheranism, Dutch Arminianism, Englishlatitudinism and Enlightened Swiss Calvinism; Dutch republican-ism, the Glorious Revolution and the revocation of the Edict ofNantes. Barbeyrac attempted to confer a unified identity on thismishmash of interrelated movements by placing it in thephilosophical framework of natural law—understood as a scienceof morality—born under the auspices of Protestantism and withGrotius, who had laid its foundations, and Pufendorf, whoserigorous deductive method had completed it, as its foundingfathers.28

It is precisely this fusion of Protestantism and natural law, seenas the most authentic fruit of the Reformed religion, which is thedistinct and characteristic trait of Barbeyrac’s work. It is a fusionthat confirms not only his fundamental laicism but also hisdeclared anti-ecclesiastical character, which were without doubtechoes of the personal experiences that had so quickly exposedhim to the intolerance of Reformed ecclesiastical circles.29

Thus, if from the first lines of the Preface to Pufendorf the systemof natural law is presented as the real science of morality, thisscience is in turn placed under the aegis of religion, as it is ‘‘religionthat teaches morality’’. Nevertheless the religion that Barbeyracdescribes is not the religion taught by the churches, priests ortheologians, but it is the natural religion taught by philosophersand of legislators raised with the ideas of philosophers. In fact, inreconstructing his history of morality and taking up anddeveloping the arguments of the rationaux theologians againstthe Baylian view of paganism, Barbeyrac does not fail to agree withBayle on the point that in paganism the official and public religioncontained superstitious practices which were contrary to reason,but nevertheless demonstrates how even ancient societies under-stood the fundamental dogmas of natural religion, namely those ofdivine providence and the system of future punishments andrewards.30 These dogmas, taught by the reason of the philoso-phers—Socrates, Plato, Aristotle and above all the ancient Stoics—had been transposed by legislators into law, and thus Barbeyracsaw philosophy and politics as teachers of religion and virtue.Certainly, in ancient societies knowledge and practice of naturalreligion were limited, since even the philosophers who hadsupported it were influenced by the prejudices of their time and sofailed to recognise the fundamental idea of natural equality amongmen and instead, like Aristotle, believed in the natural existence ofslaves and in the inferiority of barbarian people. What is more,despite recognising a principle of justice that was superior topositive laws, they did not make this higher principle a criterion ofjudgement that could legitimise the disobedience of unjust laws.And while ancient societies were based on the alliance betweennatural religion, morality and politics, there were those who spokeup 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 ofreligion and morality.31

26 So far there has only been one monograph dedicated completely to Barbeyrac,

namely P. Meylan, Jean Barbeyrac et les debuts de l’enseignement du droit dans

l’ancienne academie 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 fromConcistoro, which stopped him frombecoming a pastor. On the end of

the Berlin period, see F. Palladini, ‘Farewell to Berlin: Two newly discovered letters

by Jean Barbeyrac (1674–1744)’, inHistory 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 Geneve et la Suisse dans la pensee politique, Actes du Colloque de Geneve

(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

naturliche Religion. Zur Geschichte des Toleranzproblems von Samuel Pufendorf bis

Jean-Jacques Rousseau (Wurzburg, 1991); T. J. Hochstrasser, ‘The Claims of

Conscience: Natural Law Theory, Obligation and Resistance in the Huguenot

Diaspora’, inNewEssays on the Political Thought of the Huguenots of the Refuge, ed. J. C.

Laursen (Leiden/New York/Koln, 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 ‘‘Bibliotheque

raisonnee’’ (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

naturliche Religion, in the chapter entitled ‘Der liberale Protestantismus’, 143ff.

and G. Cheymol, ‘La notion de tolerance en Europe a l’aube des lumieres (1670–

1734)’, These, 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), ‘Preface

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 reduit

en Systeme une Science qui avant lui n’etoit que confusion, et souvent que tenebres

impenetrables’’, in Ecrits de droit et de morale (Paris: S. Goyard-Fabre, 1996), 200.

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 Mechoulan, 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. Retat, Le

Dictionnaire de Bayle et la lutte philosophique au XVIIIe siecle (Paris, 1971), 15–43, and

more recently, S. Brogi, Teologia senza veirta. Bayle contro i ‘‘rationaux’’ (Milan, 1998).31 DNG, Preface 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 andmodern theories whichwere 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.


Thus Christianity came to be seen as the revealed religionthat had at last completed and perfected man’s previouslyimperfect 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 fullyrecognise one of the fundamental principles of natural law,that of sociability. At the same time Barbeyrac was busydemonstrating, in opposition to Bayle’s ‘‘outree’’ vision ofChristianity, how this agreed perfectly with the other principleof natural law, the just ‘‘defense de soi-meme’’, and with allthe social virtues—the arts and sciences, commerce, lendingat interest, speculation itself32—and projected an imageof a rigid and, in the final analysis, antisocial and largelyinhumane morality onto the vision put forward by the Churchfathers. Thus from its origins the perfecting of natural moralityrealised by Christianity appears to have been marked by adouble betrayal. In the first instance this was a theoreticalbetrayal, carried out at the dogmatic and theological level by thefathers of the Church, who altered the purity of Christianreligion and ethics. Secondly, there was a betrayal that wasat once practical, moral and political, perpetrated by theepiscopate and above all the Vicar of Rome, who hadused their power to introduce something entirely new andunheard of: the subordination of politics to religion and to themorality taught by priests, which coincided not only with thecorruption of behaviour and tradition, but also with tyranny andintolerance.33

In the unhappy period of the Dark Ages the minimum levelof moral behaviour among the people was guaranteed bythe underground and residual survival of natural andChristian morality right until the time of the Reformationwhich, refuting the authority of tradition and of the Churchof Rome, initiated a return to worthy principles andre-established the purity of natural morality and evangelicalreligion. Nevertheless, even then a new betrayal occurred andthe reformers ended up succumbing to the temptations ofPapism: instead of becoming the teachers of morality, theybecame champions of cruelty and intolerance. Thus the mostvaluable effects of the Reformation should not be sought amongthe reformists or the theologians, but among the lay philoso-phers and the professors of law. It was in fact Grotius andPufendorf who laid the foundations of natural law as a moralscience by continuing the work begun by ancient philosophersand legislators.

What must therefore be underlined is that Barbeyrac wasnot fighting on two fronts but on three: not only againstCatholicism on one side and Bayle on the other, but alsoagainst the Reformed orthodoxies, which had deliberatelyused Bayle in order to attack the positions held by theProtestant ratiunaux.34 And in fighting on these three frontsthe continuity and the legitimacy of the tradition of natural lawwere pursued along a series of related moves. The first was toremove any reference to Thomism and the school of Salamanca(which had been an important source even for Grotius) from the

reconstruction of natural law, thus ensuring its ‘Protestant’purity.35 The second was to move natural law away from thoseauthors whose doctrines could attract to it the accusation ofirreligion, such as Hobbes and Spinoza. The third was to placenatural law firmly under the aegis of religion: a lay religion andthe natural religion that coincided with Christianity and theauthentic teaching of the Reformation and was founded on acardinal precept, tolerance and freedom of conscience. For thesepurposes Barbeyrac had to correct and integrate many pointsrelating to the ideas of the two authors that he placed at theorigin of modern natural law, beginning first of all with thequestion of moral obligation, which is, in the final analysis, thevery foundation of natural law, and which in turn is connectedto its aim, its expansion and its articulation.

In this way he applied Pufendorf’s doctrine to neutralise thedangeroususe thatBaylehadmadeofGrotius’s intellectualism36andfoundedmoral obligationondivinewill in order to guardagainst thepossibility of justifying the morality of an atheist and therebyenvisaginganatural lawindependentofreligion.Furthermore,whilerecognising,with Leibniz, that the rationalmoral laws conformwiththe nature of things, he did not fail to highlight this philosopher’sdangerous affinitywith Bayle,whohad in turn accused the author oftheDevoirs de l’homme et du citoyen of havingmoved too close to theideasofHobbes.Withoutentering intothemeritsofadebatethathasbeen analysed many times before,37 it is nevertheless important tounderline how this conception of moral obligation promptedBarbeyrac to detail the aims and the reach of natural law, correctingthe uncertainties found in Pufendorf’s doctrine. Thus, if Pufendorfhad identified two principles of natural right—self-preservation andnatural liberty—to which the natural law of sociability was added,the systematization carried out by Barbeyrac, which called for theinclusion of natural religion within natural law, constitutes asignificant correction of Pufendorf’s doctrine. In fact there are nowthree principles of natural law: religion, well-intentioned self-love

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, Preface du traducteur, § IX–X, XI–LXVI. On this point see also DGP, Preface

du traducteur, III.34 Retat (p. 41) and Zurbuchen (p. 144) have both talked about how Barbeyrac

fought on two fronts.

35 For example scholastic philosophy is dismissed in a few lines as barbaric and

harmful to religion and morality, Preface 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/Cam-

bridge 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. Heterodoxie 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. Seve, 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 ofmodern 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 argumentwith Leibniz, republished in Ecrits 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’, inNatural Law and Civil Sovereignty. Moral Right and State

Authority in EarlyModern Political Thought, ed. I. Hunter, D. Saunders (London, 2002),

109–22.


(or amour-propre), and sociability, and the same number of naturallaws correspond to these principles, outlining a hierarchical systemofduties:duties towardsGod, towardsoneself and towardsothers.38

In turnthedistinctionbetweenthe internal andexternal is shifted, asit no longer coincides with the distinction between moral theologyand natural law, but instead with that between natural law andpositive law. In such a way, precisely by virtue of the hierarchy ofduties, religion is fundamental not only tomorality and natural law,but also to politics and positive law, which are seen as nothingmorethan extensions to natural law. The most striking consequence ofthese transformations is that theyprovideaprecise interpretationofmodern natural law, seeing it as a higher criterion of justice whichcan legitimise disobedience when civil laws and positive lawdemandsomethingunjust, as emerges undeniably fromtheDiscourssur la permission des loix:

Car enfin, du moment que les Loix les plus authentiques desSouverains les plus legitimes se trouvent en opposition, dequelque maniere que ce soit, avec ces Loix immuables, ecritesdans notre cœur; il n’y a point a balancer, il faut meme, quoiqu’il en coute, desobeır aux premieres, pour ne donner aucuneatteinte aux dernieres.39

In this way Barbeyrac unmistakably gives the modern traditionof natural law an anti-tyrannical bent, perceiving that theinalienability of the right to life, which was also sustained byHobbes, and the claims to the rights of conscience recognised byGrotius and Pufendorf, imply a clear limit to the need to subjectoneself to the authority of civil government.40 Nonetheless, theway he achieves this is not without ambiguity, and it is no accidentthat his ideas have seen him interpreted in several different ways—as a follower of Locke and champion of liberalism, or as aconservative who belongs fully to the absolutist tradition.41

I believe that a first reading of his works reveals a dual tendencyin his ideas, both as they develop in the course of time and in thewake of the discussions and cultural projects that he was involvedin. On the one hand, on the religious side, it seems to me that it ispossible to observe the development of a more profound andextensive idea of tolerance and freedom of conscience. On theother, in political matters, one can make out an attempt to tonedown the explosive effects of the declared subordination ofpositive law to natural law, by blunting and diluting the idea of aright to resistance and trying to formulate a ‘‘moderate’’ politicaltheory in order to find a happymediumbetween the defence of therights of kings and those of the people.

In thepreface to the translationof the twodiscoursesbyNoodtonsovereign power and freedom of conscience, written in 1707 andrepublished in 1731, the connection between the claim of liberty of

conscience and the denunciation of despotism is clearly expressed.This almost seems like a deliberate distancing from Bayle andJurieu’s opposite positions, the canonization of a Huguenot ‘‘thirdway’’ which was as far from the defence of a freedom of conscienceprotected by the shadow of the absolute power of kings as it wasfrom 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 reconnoıt point; ourendre a la Divinite que l’on reconnoıt, un Culte que l’on croit luietre desagreable? Aucun homme mortel peut-il dominer sur laConscience d’un autre, dont les mouvemens ne lui sont memeconnus que par des Signes sujets a etre fort equivoques?42

In the joint defence of the rights of people and of conscienceBarbeyrac thus seems to impart an almost republican value toBayle’s theory of the freedom of conscience, as, in common withNoodt, he incorporates it within the Lockian theory of tolerance asPufendorf himself had argued in De habitu religionis christianae.43

Even so, in comparison with both Locke and Bayle, the positiontaken up by Noodt and Barbeyrac appears more moderate. Inrelation to Bayle this is because their idea of civil tolerance does notgo so far as to include atheists and Catholics, remaining inagreement with Locke’s position on this point. Yet, in contrast toLocke, the principle of separation between political and religiouspower is softened and it is held to be entirely legitimate, evendesirable, that the sovereign should use his power to favour anduphold what he believes to be the true religion.44 Therefore, oncethe possibility of a dominant religion is admitted, the right ofexcommunication given to the churches could, in real historicalcontexts, render the effects of civil tolerance useless, and thus theimplicit distinction between civil tolerance and ecclesiasticaltolerance could in some ways appear opportunistic and con-servative in character.45 Nevertheless, as regards this point, it canbe observed how the dispute with the Benedictine Father Ceillierdrove Barbeyrac to underscore the dangers of ecclesiasticintolerance and thus to distance himself from the opportunismthat in the Protestant world could result in making a claim for civiltolerance 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 hehad intended tousehis preface toPufendorf to speakonlyof civil tolerance, the confusion thathis criticcontinually made between civil and ecclesiastical tolerance hadforced him todealwith this argument aswell. In point of fact Ceillier

38 DNG, II, III, § XV, note 5 (already present in the 1706 edition).39 Ecrits de droit et de morale, 139.40 See for example DGP, Preface du Traducteur, XXXVII: my authors, Barbeyrac

states, in so far as they look favourably on the kings, ‘‘poussent pas assez loin

l’Obeıssance passiveı’’, but limit themselves ‘‘d’exhorter les Peuples memes a ne rien

entreprendre d’un commun accord contre leur Souverain, qu’apres 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 theorie du droit

naturel’, in J. Barbeyrac, Ecrits de droit et demorale, 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. Kervegan, H. Mohnhaupt

(Frankfurt, 1999), 52. Like Bazzoli, T. J. Hochstrasser instead underlines the political

conservatism that accompanies the call for freedomof conscience in his ‘Conscience

and Reason: the Natural Law Theory of Jean Barbeyrac’, in The Historical Journal,

XXXVI (1993), n. 2, 289–308.

42 Du pouvoir des souverains et de la liberte de conscience, XXXI–XXXII. This

rhetorical question, which was widespread in Huguenot texts, had its ‘‘Monarch-

omach’’ roots in a passage from T. de Beze, 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 Preface, XIV. See also the review on the treatise written by Barbeyrac for the

Bibliotheque raisonnee des ouvrages des savans de l’Europe (1728), I, 108–20, and II,

293–335.


had not used exactly this terminology, but had concentratedmainlyonwhat he believed to be the paradoxes inherent within the idea ofuniversal tolerance, which he saw as the inevitable consequence ofthe idea of civil tolerance itself. Taking up many of the argumentsused byBossuet in his polemic against Jurieu, he had argued that the‘‘system of tolerance’’ was in fact new not only in the context of thehistory of the Church, but also in relation to the Reformed traditionitself and its founding fathers, Luther, Calvin and Zwingli, who haddecisively condemned it. Thus, to Ceillier’s eyes the Protestantposition itself, identified with the refutation of the principle ofauthority and with the call for free individual interpretation of theScriptures, was condemned to being either intrinsically contra-dictory or socially subversive. Once the principle of the authority ofthe Church was rejected, the intolerant position of the Reformistsand Jurieu’s ‘‘opportunistic’’ position, which, like Bossuet, arguedagainst Bayle’s universal tolerance in favour of tolerance restrictedto certain contexts, both seemed incoherent. But toCeillier thedirectconsequence of the Protestant principle of free enquiry was in fact auniversal tolerance that would also have to include Catholics, giventhat even they recognised the fundamental tenets of Christianity,namely the belief in the sanctity of the Scriptures and in Jesus as theMessiah. But apart fromunderlining the incongruityof the supposedProtestant tolerance treating Catholics as idolaters and antichrists,Ceillier concluded his theoretical refutation by arguing that the veryidea of universal tolerance ended up giving everyone the right toread the Scriptures and find or imagine in them whatever theyneeded to claim their total independence from all forms of power,not only ecclesiastical, but also civil. Insubordination not only in theChurch but also in the statewas therefore the direct consequence ofthe principle of free enquiry and the idea of tolerance.47

In chapter XII of the Traite de la morale des peres de l’Eglise

Barbeyrac introducedthedistinctionbetweencivil andecclesiasticaltolerance in order to relaunch a vision that was coherent, delimitedand favourable to the social and political order of Protestanttolerance, with the aim of rebutting Ceillier’s arguments. Withoutpausing to look at his analysis of civil tolerance, which has alreadybeen examined by other interpreters, I believe it is useful instead tohighlight some of the significant aspects of his doctrine ofecclesiastical tolerance. At first sight, the definition that he givesit adds nothing to those that were already known and for the mostpart takes up the idea of peace and Christian concord that was oftenspoken of within the Protestant movement: this ‘‘consiste a souffrirdans une meme Societe Ecclesiastique ceux qui ont quelquesentiment particulier’’.48 Moreover, precisely in order to mark thedistancebetween this toleranceandtheuniversal toleranceattackedby Ceillier, Barberyrac argues for the need for a limit beyond whichtolerance cannot go, a necessity that is stronger than that of civiltolerance, which excludes onlywhat is politically damaging and notwhat is dogmatically divergent. The definition of ecclesiasticaltolerance is intrinsically limited by containing the threshold ofintolerance, which corresponds to the Churches’ power of excom-munication, the compelle exire: ‘‘On ne peut pas neanmoins infererde la, comme le pretend le P. Ceillier, qu’il faille tolerer dans une

memeSociete Ecclesiastique toute sortedeSectesoudeReligions’’.49

Nevertheless, themanner inwhichBarbeyracpresents theChurches’power of excommunication is very cautious: while deriving it, in aLockian way, from the contractual nature of ecclesiastical societies,he presents it as the fruit of an explicit decision taken by the Churchrather than as an intrinsic right and thus makes it conditional:

Ce qu’il y a aumoins de certain, c’est que, si l’on s’est fait une Loide ne pas souffrir dans la Societe Ecclesiastique de certainesOpinions, qu’on croit dangereuses pour le Salut, on n’a ici encored’autre droit, que de declarer paisiblement a ceux qui lessoutiennent et qui y persistent, que n’aiant pas les qualitezrequises dans les Membres d’un tel Corps, on ne peut plus lesregarder comme tels: de meme qu’on en use dans toutes lesautres Societez contractees volontairement et sous certainesconditions. Du reste, on ne peut legitimement user envers euxde la moindre vexation.50

Thus, on the one hand Barbeyrac distinctly reaffirms theincompatibility between Protestantism and Catholicism, and there-fore the exclusion of Catholics from Protestant tolerance. He arguesthis not only for reasons of social order (objecting to Ceillier with abelief in the subversive nature of ‘‘Papism’’) but also for reasons ofdogma, in so far as the very principles of these religions make themtwo completely opposed systems. Yet, on the other hand, he tends tocounsel a moderate and humane use of the right to excommunica-tion, focusing on the importance of modesty and moderation toaccompany the certainty of possessing the truth. And his plea infavour of ecclesiastical tolerance unfolds in three stages. The firstconsists of comparing ecclesiastical societies to the society ofscholars and religious doctrines tophilosophical systems: since theyall have a common goal, namely the quest for truth, it would beabsurd to use force rather than reason in order to convince others ofopinions held to be true. Moreover, while there is only one truth, itscharacteristics are seldom so clear as to eliminate all doubt, andindeed in the religious sphereGodhimself hasdeliberately leftmanyquestions shrouded in mystery, such as those relating to his natureand essence, the extent and harmony of his attributes, his decrees,and the ways in which he acts. There can be different contraryopinions around these issues and it is not possible to knowwhich istrue since it is even possible that two contrary opinions can both bewrong.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, individualsshould not intrude into other people’s convictions and usurp God’spower to judge who will and will not be saved. Almost turning ontheir head Juriet’s arguments used by Bossuet to oppose civiltolerance and argue that it is impossible to live in peace with thoseone believes to be damned,52 Barbeyrac underlines how modesty,

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. Schluter, Die franzosische Toleranzdebatte im Zeitalter der

Aufklarung. Materiale und formale Aspekte (Tubingen, 1992). Less detailed is the

synthesis by B. de Negroni, Intolerances. 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.

49 Traite de la morale, § XXI, 177.50 Traite de la morale, § XXV, 178–9.51 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 decouvre 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 scaurions 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.


Christian charity and the gift of peace demand that those who havedifferent opinions to our own should not be deemed to be debarredfromsalvation, particularly if theseopinions relate tomattersofpurespeculation and do not impinge on practice and on the impeccableconduct of those who profess them.53 Finally, precisely whencriticising the confusion that Ceillier had made between civil andecclesiastical tolerance, Barbeyrac finishes by recognising theimplicit link that his Benedictine critic had made between the twoandthusargues that it is the lackofecclesiastical tolerance that leadsto a lackof civil tolerance. In thiswayhe turns the consequential linkthat Jurieu and Bossuet had established between civil andecclesiastical tolerance on its head, maintaining that without thelattereventhefirst isdifficult to realise.At thesametimeheadmits—conceding this point to his interlocutor—that Protestants can rightlybe reproved for suchecclesiastical intolerance.54However,while themain cause of the abuses and the divisions that infiltrated theReformedworld stemmed from this problem, in the final analysis heagreeswith his Catholic critic in recognising the free examination ofthe Scriptures as the fundamental principle of Protestantism, at thesame time identifying it with the principle of tolerance itself. Thus,andherewe reach the conclusion,while Catholic intolerancederivesfrom the very principles of Catholicism and therefore must beimputed to the system and not the people, Protestant intolerancecontradicts the principles of Protestantism, and somust be imputedto the people and not the religion itself.

While it did not respect the rigorous separation of Church andState which Locke sought and was far from being the universal civiltolerance called for by Bayle, it nevertheless seems difficult to seeBarbeyrac’s doctrine of tolerance as conservative or opportunistic,precisely because it explicitly avoids the danger of opportunismandof falling back into the intolerance or ‘‘Papism’’ that he reproves inthe great Reformists and eighteenth-century defenders of thevarious orthodoxies. From this point of view, there undoubtedlyappear to bemany points of contact and convergencewith positionsthat, a few decades later, would be taken up by Rousseau, inparticular the vision of Protestantism identified with the freeexamination of Scripture, the primacy of morality over dogma, thelink between civil and ecclesiastical tolerance, and the condemna-tion of the opportunism of tolerance in the Protestant world.55

Nonetheless, what is important to underline is that with regardstomore specifically political issues the anti-despotic implications of

the idea of freedom of conscience are discussed in such a way as toestablish a distance fromwhatmight be defined as themore radicalcurrent of the Huguenot movement. In my opinion, this is moreclearly 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 toPufendorf’s Droit de la nature et des gens, which makes it hardlypossible to see a conservative evolution in Barbeyrac’s thought.Rather, inmy opinion, hemakes a different strategic use of the ideasof the two authors who he designates the founding fathers ofmodern natural law: while in the case of Pufendorf the translatoraims to correct the original’s Hobbesian sympathies by usingcitations from Locke, Sidney and Abbadie, in the case of Grotius heinstead seems to want to find the theoretical instruments to justifythe right of resistance within his own doctrine without at the sametime slipping into anti-monarchist positions.

It is in the notes to the translation of Pufendorf that Barbeyracabove all underlines, using Locke against Pufendorf’s excessiveloyalty to the Hobbesian idea of the state of nature, how the civilstate cannot be considered superior to the state of natureunconditionally, but can only be so when the sovereign doesnot abuse his power.56 It is here that Barbeyrac summarises orquotes long passages of Locke’s Second Treatise and his Letter

Concerning Toleration.57 It is also here that, following Locke, Sidneyand Abbadie, he affirms that the pact of submission has to satisfycertain conditions, defending the idea of the inalienability ofnature: ‘‘Personne ne peut vendre sa liberte jusqu’a se soumettre aune Puissance Arbitraire, qui le traite absolument a sa fantaisie; carce seroit vendre sa propre vie, dont on n’est pas le maitre’’.58

Nevertheless, although, as Ross Hutchinson has revealed, most ofBarbeyrac’s citations of Locke occurred in his early years andtended to appear only rarely after the 1720s and in the translationof Grotius,59 any idea that Barbeyrac changed his attitude towardsLocke does not appear legitimate. For one thing, at least one newreference to Locke was added in a note to the 1740 edition of thetranslation of Le droit de la nature et des gens in support of thedoctrine of the parts of sovereignty.60 Moreover, even whentranslating Pufendorf, Barbeyrac is undoubtedly amoderate readerof Locke. In fact, the right of resistance that he invokes resemblesmore what the Monarchomachs’ tradition attributed to the ‘‘orderof the kingdom’’ than to Locke’s appeal to the heavens.61 What ismore, the way he interprets Locke when translating him directlyreveals an unmistakable distance in relation to the reading thatemerges 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:

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 piete, que les plus zelez pour le

sentiment contraire; quelle repugnance ne doit-on pas avoir a temoigner le moins

du monde, que l’on regarde comme exclus du Salut, ou en danger de l’etre, des gens

en qui l’on voit briller les marques les moins equivoques d’une disposition

salutaire?’’, Traite de la morale, § XXIV, 178.54 ‘‘Il est vrai que, comme le defaut de Tolerance Ecclesiastique mene aisement au

defaut de Tolerance Civile, il y a eu des tems, et des lieux, ou l’on n’a pas toujours

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 tolerance civile, c’est-a-dire, l’impunite accordee par le magistrat a toutes les

sectes, est liee necessairement avec la tolerance ecclesiastique; et il ne faut pas

regarder ces deux sortes de tolerances comme opposees l’une a l’autre; mais la

derniere (sic!) comme le pretexte 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. Retat, 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 permitmyself to direct the

reader to G. Silvestrini, ‘Religion naturelle, droit naturel et tolerance dans la

‘‘Profession de foi du Vicaire Savoyard’’’, Archives de Philosophie, LXXII (2009), n. 1,

31–54.

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 legitimement etre depose par le peuple, on

n’entend pas par lemot de Peuple la vile populace ou la canaille du Pais, ni une cabale

d’unpetitnombredeseditieux;mais laplusgrandeet laplussainepartiedessujets, de

tous les ordres duRoiaume.Deplus il faut que la tyrannie soit notoire et de la derniere

evidence, en sorte quepersonne 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 tome that this can be considered a radicalisation of

theconstitutional right to resistance theorisedbytheMonarchomachs, inotherwords

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 peoplewithout recourse to

intermediary organs, which Barbeyrac excluded.


il est impossible que le Souverain, s’il n’a veritablement en vueque le bien de son Peuple, la conservation de ses sujets, et lemaintien de leurs Loix, ne le fasse connoıtre et sentir; de memequ’un Pere de famille ne peut que faire remarquer a ses Enfans,par sa conduite, qu’il les aime, et qu’il prend soin d’eux.

IntheoriginalEnglishofLocketheterm‘‘souverain’’ correspondedto ‘‘governor’’, but is translated instead with ‘‘un prince, ou unmagistrat’’ by David Mazel, who thus remained faithful to the moreradicaland‘republican’currentoftheRefugewhichconceivedroyaltyas the supreme magistracy rather than as the sovereign power.62

Several of Barbeyrac’s notes in chapters III and IV of book I of theDroit de la guerre et de la paix concentrate on this very point, on theexplicit move away from the idea of a sovereignty that originateswith the people and of which the kings are only the custodians.These are the same chapters that Rousseau tartly described ascontradictory. And the explanation of thismove is clearly presentedin the final part of the Preface du Traducteur, where the more exactpolitical significance that Barbeyrac intends to attribute to thescience of natural law ismade clear. Once again the startingpoint forthis clarification appears to be the desire to be polemical, in this casethe need to propose an interpretation of Grotius’s politics thatdistances itself from two opposing fronts and makes it possible todefendhim fromadual accusation. Thefirst is that of having ‘‘unpeutrop donne au Pouvoir des Rois’’, a well-founded accusation,Barbeyrac recognises, although in order to excuse the author hepleads that he would have needed to avoid any suspicion of havingany affinity with the seditious doctrines of the Jesuit Mariana.Furthermore, without disregarding the possible pro-absolutist andmonarchist reading of Grotius, he shows that he iswell aware of theanti-absolutist use that the Protestant world made of this author,and he cites three works in which Grotius’s authority is invoked indefence of the English Revolution and of the right of resistance.63

And although in the Preface Barbeyrac does not explicitly state

against whom he is defending Grotius from the accusation ofexcessive bias towards the kings, in the notes of his translation heargues many times against the criticisms made against Grotius byGronovius, who Bayle had indirectly stigmatised as the republicancommentator of Grotius.64 In fact, while he had translated hisDiscours sur la loi royale, Barbeyrac had disassociated himself fromGronovius, criticising both his idea of a submission of the kings andthe sovereign to the law and the conviction that the people werealways the titular sovereign.65

This need to distance himself from the more radical Protestantpositions becomes even more apparent when Barbeyrac fights onthe other front against the Jacobite supporter Andrew MichaelRamsay who, in the Discours sur la Poesie Epique had dangerouslycompared Grotius and Pufendorf to Machiavelli and Hobbes,accusing them of having founded their politics on paganmaxims.66

Thus Barbeyrac was arguing against Ramsay when he reiteratedthe differences that separated the former from the latter ratherthan merely reaffirming the religious and Christian dimension ofnatural law that he supported, a conformist natural law in keepingwith, and not opposed to, the principles of Fenelon, which Ramsayclaimed to follow. He also shed light on the political consequencesthat derive from this science, namely the rejection, particularlyfrom Grotius, of an excessive theory of passive obedience, arejection based on a series of very precise principles: the criticismof the directly divine origin of sovereignty, the idea of the contractas the foundation of sovereign authority and the admission thatcircumstances might exist in which it is possible to oppose asovereign who has clearly violated the fundamental laws of thestate. And by drawing Ramsay’s most famous political text, theEssay philosophique sur le gouvernement civil, into the argument,Barbeyrac concluded his preface by forcefully reaffirming thedifference between property and authority, between the right toinherit goods and the hereditary right to the crown, and arguingthat what Ramsay called the ‘‘fiers Republicains’’ were in realitythe true friends of the kings because, by setting them certainappropriate limits, they avoided exposing society to the danger ofrebellion. But what is interesting is in fact the political theory thatRamsay attributed to the ‘‘republicans’’ in the long passage of the

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 thepreservationof themandtheirLawstogether,not tomake themseeand 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 unMagistrat, s’il n’a en

veue que le bien de son Peuple & la conservation de ses sujets et de leurs Loix, ne le

fasseconnoistreet sentir; toutdemesmequ’il est impossiblequ’unPere-de-famillene

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 TreatisewhichMazel’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; andS.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 Bibliotheque

universelle et historique, vol.XIX, October 1690, 582, had attributed to Locke the

doctrine according to which: ‘‘la Souveraine Autorite reside toujours dans le peuple,

quoi qu’il ne l’exerce jamais, pendant que la forme de Gouvernement subsiste; mais

seulement lors qu’elle est renversee, par l’infraction des Lois fondamentales, sur

lesquelles le salut de l’Etat est appuie’’.63 DGP, Preface 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; Supplement de la crise; Ou Relation duDebat qu’il y eut, entre les

Commissaires Deputez de la Chambre Haute et ceux des Communes, sur l’Abdication du

Roi Jaques et la Vacance du Throne, en 1689, avec UnDiscours 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 intentee 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 omnipresente sous la

plume des hommes du Refuge’’.

64 Avis important aux Refugiez, 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 degenere en Tyran, et qu’il gouverne d’une maniere 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 delivrer

de ce joug inique. Mais c’est ce que Grotius reconnoit formellement [...] Tout ce qu’il

pretend d’etablir dans l’endroit, dont il s’agit, c’est que la Souverainete n’appartient

pas au peuple toujours 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’epargner la

peine de refuter ce que son Auteur ne soutient pas’’.66 Discours sur la Poesie Epique, et de l’excellence du Poeme de Telemaque, in F.

Fenelon, Avantures de Telemaque, premiere edition 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 republique en

France (XVIe–XVIIIe siecle) (Aix-Marseille, 1998), 205–45.


Essay quoted by Barbeyrac in his preface: ‘‘Les Rois, dira leRepublicain, ne sont que les depositaires d’une Autorite qui resideoriginairement dans le Peuple’’.67

If one thinks about this definition—which also perfectlymatches the one given by Bayle in the Avis aux Refugiez—it seemslegitimate to conclude that it was precisely the need to avoid anyaccusation of republicanism that led Barbeyrac, just as he waspreparing to establish the respective rights of the kings and thepeople, to deny that the people always retained sovereignty:

Il faut avouer, que, sur toute la matiere des droits respectifs duSouverain et du Peuple, il y a beaucoup demal entendu [. . .]Maissi on examine les choses sans prevention, on trouvera, ce mesemble, qu’il n’est pas fort difficile d’etablir des principes, qui nefavorisent ni la Tyrannie, ni l’esprit d’independance et deRebellion. Ici il est certain que, du moment qu’un Peuple s’estsoumis, de quelque maniere que ce soit, a un roi veritablementtel, il n’a plus le pouvoir souverain: car il implique contradictionde dire, que l’on confere un Pouvoir a quelcun, et que cependanton le retient.Mais il ne s’ensuit pas de la, qu’on l’ait confere d’unemaniere a ne se reserver en aucun cas le droit de le reprendre.68

While taking up the doctrine of ‘‘constitutional’’ resistance thatthe Monarchomachs had formulated, Barbeyrac refused to sharethe theory of monarchic power that they, including Althusius,Sidney, Locke, his translator Mazel, and Gronovius himself, hadsupported: a suprememagistracy whose dignity is superior to thatof individuals but inferior to that of the whole realm.69

But it also seems right to think that Rousseau had understoodwell how for Barbeyrac the Grotian theory of sovereignty couldpresent the perfectmeans bywhich to hold together the possibilityof resistance and an anti-republican position. In contrast to Hobbesand Pufendorf, and in the final analysis also to Bodin (who haddeduced the characteristics of sovereignty from its nature, inparticular that of its indivisibility, and had thus placed someconstraints on its transfer), Grotius had for the most partmaintained that the way in which sovereign power is formeddepends on the content of the pact that the people swear to submitto. Nothing is impossible: neither that the people give themselvesunconditionally to a master, nor that they limit sovereignty

through fundamental laws, nor that they divide sovereignty amongdifferent organs of the state. For this specific reason Rousseauaccused him of establishing the law on the basis of circumstance.70

Thus Barbeyrac uses Grotius’s political theory, which is moremalleable and pragmatic than Pufendorf’s, for two purposes. Onthe one hand, as the Huguenot authors had done before him, hemakes a broad interpretation of the cases of resistance foreseen byGrotius, contending that when the king carries out acts which are aclear breach of the pact with the people and constitute an act ofwar against them, then the people have a right to defendthemselves and resist.71 On the other hand, he seems to considerthe idea of a partage of sovereign rights to be the most suitableinstrument for preventing monarchic power from becomingtyrannical or despotic.

It is therefore not surprising that the politically moderate andanti-republican version of Protestant natural law that Barbeyracintended to provide, through an attempt to join the right ofresistance to a negation of popular sovereignty by advancing theidea of a partage of sovereignty and by refusing to admit thesubordination of the king to the law, was seen as contradictory andopportunistic by Rousseau. He intended to highlight this verycontradiction by denouncing the existing incongruity between thehomage 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 hadadopted the ‘‘true principles’’, namely the idea of popularsovereignty as the foundation of the power of kings, would easilyhave been overcome. But right here, in the chapter of the Social

Contract which sees Rousseau at his most sarcastic in relation toGrotius and Barbeyrac, he is attacking one of their specificdoctrines, the doctrine of the division of sovereignty.

4. Grotius, Barbeyrac and Burlamaqui: the theory of the partageof sovereignty

Apart from the superficial reference to the chapter of Pufendorfentitled ‘‘Des parties de la suverainete en generale, et de leurliaison naturelle’’, the direct target of Rousseu’s polemic is

67 DGP, Preface 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, revue, corrigee et augmentee (London, 1721), 69–73.68 DGP, I, III, § VIII, note 1; see also I, III, § IX, note 3: ‘‘si le Peuple etoit en droit de se

regarder comme independant du Roi, et d’agir avec autorite par rapport a lui, toutes

les fois que le Roi feroit quelque chose qui parotroıt injuste, ou contraire au Bien

Public; ce seroit une source perpetuelle de querelles et de desordres [...] Ainsi le Roi

alors croiant n’avoir point abuse de son Pouvoir, et le Peuple croiant le contraire,

sans qu’il y eut aucun Juge pour terminer le different: il faudroit qu’il vinssent a une

Guerre declaree’’. Here we see how Barbeyrac, against themore 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

resistance?’, in Tolerance et Reforme, 71–96, Ead., ‘Bodin et les Monarchomaques: la

reaction absoutiste ou les promesses de l’autonomie’, in Et de sa bouche sortit un

glaive. Les monarcomaques au XVIe siecle, ed. P. A. Mellet (Geneve: Droz, 2006), 145–

80; on Althusius, see T. O. Huglin, Sozietaler Foderalismus. Die politische Theorie des

Johannes Althusius (Berlin/New York, 1991), particularly 197ff., G. Duso, ‘LaMaiestas

populi chez Althusius et la souverainete moderne’, in Penser la souverainete a

l’epoque 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.

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

theories 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 Preface to the DGP, the

Supplement 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 accusationmade 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.


undoubtedly the theory of the partage of sovereignty, which is setout in Book I, Chapter III of the Droit de la guerre et de la paix andexplicitly quoted by Rousseau. While he did in fact draw on theterminology 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 somethingsimple and indivisible, Grotius did not exclude the possibility thatit could, in certain circumstances, be divided effectively either intosubjective parts—as in the case of the two Roman Emperors of theEast and the West—or into its potential parts, in other words thevarious rights of which it is formed. This is possible only when theking and the people make a ‘‘partage expres’’ of sovereignty, whichoccurs when a people retain certain acts of sovereignty and leavethe others completely to the king.73 Grotius is, however, careful todistinguish this partage frommixed polybian government: it is nota sharing out of powers to different social groups, but an allocationof very precise functions that rules out any conflict of compe-tencies and therefore avoids the objection generally made bytheorists towards mixed government, namely that it does notresolve the problem of conflict between the subjects or the organsthat share sovereignty.74

For his part Barbeyrac, commenting on Pufendorf, denies theindivisibility of sovereignty. To argue this would mean conceivingof sovereignty as a physical entitywithout parts andwhich is givendifferent 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 betransferred even to a collective subject. Thus, he concludes, giventhat sovereignty can be exercised by several subjects, it is divisibleand its unity derives from the aims that it pursues:

La verite est, que la Souverainete renferme un assemblage dedivers droits ou de divers Pouvoirs distincts, mais conferez pourune meme fin, c’est-a-dire, pour le bien de la Societe; de sortequ’a les considerer en eux-memes, rien n’empeche qu’ils nesoient ou entierement separez l’un de l’autre, ou entre lesmainsde differentes personnes.75

In the fourth edition of the translation of Devoirs de l’Homme et

du Citoyen, published in 1718, he adds:

Si les Souverains etoient toujours eclairez, sages et gens de bien,l’interet de l’Etat demanderoit sans doute que toutes ces Partiesde la Souverainete fussent reunies entre leurs mains, sansaucune diminution ni modification. Mais comme l’experiencefait voir qu’on abuse facilement d’une Puissance etendue, les

inconveniens qui naissent du partage de quelques-uns desdroits de la Souverainete, seront toujours beaucoup moindres,que ceux auxquels on est expose par la regularite dont parlenotre Auteur, laquelle n’est bonne qu’en idee. C’est cette belleregularite qui met les princes en etat d’entreprendre, parexemple, tant de Guerres non-necessaires, ou meme injustes,dont les Sujets n’eprouveroient pas les calamitez, si le pouvoirde lever des impots et des troupes etoit reserve ou en tout, ou enpartie, au Corps du Peuple, ou a ceux qui le representent.76

However, this remained amere suggestion and, aswe know, thereal theorist of the doctrine of partage was Burlamaqui in thePrincipes de droit politique, published posthumously in 1751. If readas a continuation of Pufendorf and Barbeyrac, Burlamaqui’s ideascan be seen as an attempt to systematise the reciprocal adaptationand synthesis of Grotius and Pufendorf’s ideas that Barbeyrac hadintended to complete in order to resolve the contradictions andtensions between them. In particular, in the only text preparedwith publication in mind, the Principes du droit naturel, whichappeared in 1747 a year before his death, Burlamaqui accentuatedBarbeyrac’s endeavour to extend natural law by including themotivations inherent in the theory of obligation, emphasising theimportance of sociability and the role of religion and above all bystrengthening the subordination of natural law to natural religion,from a perspective which was closer to deconfessionalisation thanto secularisation.77 At the same time it is clear that Burlamaquiseeks to resolve the fundamental tension he perceived inBarbeyrac’s ideas: the tension between a theory of voluntaryadherence to obligation and to the law and the attempt to imposelimits on sovereign power in the name of freedom of conscienceand the right of resistance. This operation has a specific impact onthe level of political theory at the moment in which Burlamaquitakes up and extends the Grotius-Barbeyrac theory of the limits ofsovereignty. Barbeyrac’s procedure can in fact be defined as ‘‘anti-republican’’ because it sought to justify the right to resistancewithout undermining the absolute power of the kings, and, moreimportantly, without incurring accusations of republicanism fromsupporters of monarchic absolutism. Burlamaqui’s doctrine, on theother hand, acquires a significance that can be defined asspecifically antidemocratic in that his theory of the partage ofthe rights of sovereignty and the balance of powers is specificallyaimed at criticising regimes ruled entirely by the people.

As regards the theory of obligation, it is clear that Burlamaquion the one hand rejected the ‘‘rationalist’’ position identified morewith Clarke, who saw the source of obligation in the ‘‘convenanceet la disconvenance naturelle que nous reconnaissons danscertaines actions’’, than with Leibniz. Yet on the other hand hebelieved that the opposing theory, which places obligation in thewill of a superior, was also inadequate and inclined too much

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 ‘‘regler exactement les limites de ces

Jurisdisctions respectives, selon la difference des lieux, des personnes, ou des

affaires; en sorte qu’on eut pu aisement discerner ce qui seroit du ressort de

chacune des Puissances collaterales’’. 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, reduit toutes ces parties de la Souverainete a trois; scavoir le Pouvoir

Legislatif, le Pouvoir Executif, et le Pouvoir de Confederation’’.

76 Devoirs de l’homme et du citoyen, II, VII, § IX, note 1.77 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

andwill 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. Etude 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. Larrere, L’invention de l’economie au XVIIIe siecle. 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.


towards Hobbesian principles. Thus the Genevan jurist believedthat the foundation of obligation should be sought in the will of asuperior, but that the superior is directly taken over by a process ofrationalisation, in as much as his will ‘‘ne peut produire cet effet,qu’autant qu’elle se trouve approuvee par notre raison’’.78

Otherwise, if the authority of the superior was not based on theapproval of reason, it could produce only an external constrictionand not a true and proper obligation. This search for compatibilitybetween voluntarism and intellectualism is both theological andpolitical: just as divine will can be considered the foundation ofobligation only if the notion of an omnipotent creator issupplemented with the idea of his perfect wisdom and sovereigngoodness, so the right of sovereignty derives from a superior poweraccompanied bywisdom and goodness.79 Equally, for the law to besuch it must satisfy not only formal conditions—that is, it cannotderive solely from whomever has the role of legislating—but alsomaterial ones: on the one hand it has to be universal and perpetual,in otherwords distinct from the particularwill of the sovereign andon the other it must be just, in other words it must conform toorder, to the nature of things and to the human constitution.80 Inthis way will and reason, internal motivation and externalobligation, command and regulation are considered to beinseparable and constitute a conceptual framework which affirmsthe supremacy of social life and civil society over the state ofnature, on the basis that it is not only a conditionwhich is requiredby man, but is also more natural and more consistent with divinewill. In turn, all this constitutes a premise used to elaborate, at thelevel of the principles of political law, a theory of sovereignty thatallows the consideration of a variety of possible forms, includingabsolute but not despotic ones, limited ones and mixed ones. Theattempt to present a systematic synthesis of Grotius and Pufendorf,which Barbeyrac had drafted in his notes, thus culminates with therestatement of the problem of the best form of government andwith the proposal of a precise solution to it.

In the Principes du droit politique, following a brief analysis of thestate of nature, Burlamaqui largely takes up the arguments and thestructure followed by Pufendorf in books VII and VIII of Le droit de lanature et des gens—which deal with the origin and the constitutionof civil societies, sovereignty, forms of government, the division ofsovereignty, relations between sovereign states, war and thedissolution of states. He then modifies Pufendorf’s theories bydirectly incorporating Barbeyrac’s corrections, by developingthem, and by putting forward arguments of his own to dilutePufendorfian voluntarism and its political repercussions. It is notpossible to go through a point-by-point comparison of the threeauthors here, so I will thus confine myself to setting out somepoints I believe to be relevant.

Firstly, with regards to the state of nature, even Burlamaqui, likeBarbeyrac, presents a more agreeable picture than Pufendorf and,most importantly, rejects the Hobbesian theory in which the stateof nature is identified with the state of war. Nonetheless, this anti-Hobbesian concession is presented as purely hypothetical and theanalysis immediately centres on the disadvantages of this state,which trigger a dynamic of conflict and determine its impractic-ability:

Aussi faut-il convenir que si pendant que les hommes vivoientdans la Societe de nature, ils avoient exactement observe lesLoix naturelles, rien n’auroit manquee a leur felicite, et qu’onn’auroit pas eu besoin d’etablir un pouvoir souverain sur laterre: ils auroient vecu dans un commercemutuel de services etde bienfaits, dans une simplicite sans faste, dans une egalitesans jalousie, et l’on n’auroit connu d’autre superieurite quecelle de la vertu, ni d’autre ambition que celle d’etredesinteresse et genereux.

However, he goes on to say that, ‘‘les hommes ne suivirent paslong-temps une regle si parfaite [. . .] La grande liberte etl’independance dont les hommes jouissoient, les jettoient dansun trouble perpetuel’’.81 Thus, in contrast to Barbeyrac, inBurlamaqui the normative and anti-despotic function of the imageof the state of nature is lost, since the objective is to demonstratethe need for the institution of governments and for sovereignauthority. The same comparison between natural and civil libertycreates an argument for the superiority of the civil state, which ‘‘estde tous les etats de l’homme le plus parfait, le plus raisonnable, etpar consequent le veritable etat naturel de l’homme’’. The sacrificeof natural independence and the submission to ‘‘des maıtres’’ arethus completely justified and legitimised by the fact that only inthe civil state, under the protection of the sovereign, can manattain true happiness.82

Later, in the analysis of the transition from the state of nature tothe civil state, Burlamaqui differentiates between the historic originof societies and the foundation itself of sovereignty. Thus, followingBarbeyrac, hemoves away fromPufendorf,whohadhelddemocracytobe the earliest formofgovernment, andattributes theorigin of thefirst 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 thepact of union, the ordinance that establishes the formof governmentand the pact of subjection, dwelling at length on the importance ofthe pact of subjection, once again in an anti-Hobbesian sense oflimiting the power of the sovereigns.84

Finally, with regards to sovereignty—defined as ‘‘le droit decommander en dernier ressort dans la societe civile, que les

78 PDN, I, VI, § XII. K. Haakonssen,Natural Law andMoral Philosophy. FromGrotius 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 ‘‘ecole romande du droit naturel’’’, Jahrbuch fur 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.

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 necessaire de l’Etat de Nature, et notre Auteur lui-meme 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 Createur, et par un effet de la corruption humaine, l’un et l’autre de ces

etats est souvent insociable, et malheureux. Le Gouvernement Civil etant le moien

le plus propre a reprimer lamalice humaine; l’Etat Civil peut sans contredit etre plus

sociable et plus heureux, que l’Etat de Nature. Mais il faut supposer pour cela que la

Societe Civile soit bien gouvernee: autrement si le Souverain abuse de son pouvoir,

ou qu’il se decharge du soin des affaires sur des Ministres ou ignorans, ou vicieux,

comme il arrive tres-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 dealingswith 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’’.


membres de cette societe ont defere a une seule etmeme personne,pur y maintenir l’ordre au dedans et la defense au dehors, et engeneral pour se procurer sous sa protection, par se soins unveritable bonheur, et sur tout l’exercice assure de leur liberte’’85—Burlamaqui is careful to underline its indivisibility: ‘‘la Souver-ainete ne peut souffrir ni de division, ni de partage; qu’il n’y a plusde Souverains des qu’il y en a plusieurs, parce qu’alors aucun necommande en dernier ressort, et qu’aucun n’est oblige de ceder al’autre, il faut necessairement que par leur concurrence toutretombe dans le trouble et la confusion’’.86 And like Barbeyrac, he isdetermined to find a happy medium between tyranny and thespirit of rebellion, doing so while forcefully underlining the factthat sovereignty initially resideswith the people,87 and that no onecan surrender his freedom to subject himself to an arbitrary power,for to do sowould bewasteful and pointless.88 However, he did notfail to conclude, rejecting once again the distinction between ‘‘uneSouverainete reelle, qui reside toujours dans le peuple, et uneSouverainete actuelle qui appartient au Roi’’, that the people, oncetheir rights are transferred, no longer have title to sovereignty,although they can reserve the right to have it restored in certaincases.89 In keeping with the tradition of Protestant natural law andwithout essentially moving away from Barbeyrac, Burlamaquidoes not fail to invoke the right of resistance against an authoritythat abuses its power and becomes tyrannical, but he limits thisright to instances of great abuse and identifies the population thathas the right to resistwith ‘‘la plus grande et la plus saine partie dessujets de tous les ordres du Royaume’’.90

Nevertheless, the attention of the Genevan jurist is concen-trated primarily on the limits of sovereignty. And here we see thathe first of all distinguishes absolute sovereignty from arbitrarypower, explaining to the ‘‘Republicains’’—as it was already possibleto read in Barbeyrac’s translation of Pufendorf91—that evenabsolute sovereignty, just like divine and natural laws, containslimits which can be seen in its very nature, in the end for which ithas been instituted,92 and does so by making full use of all thearguments which came from the re-examination of divine willfrom a rationalist position.93 After underscoring, in keeping withProtestant tradition, the innate perils of the exercise of power andhow governors are exposed to the temptation to abuse it, he takesup Pufendorf’s theory of the limits of sovereignty almost withoutalteration—limits which can essentially be found in the agree-ments made between the people and the sovereign and in thefundamental laws. However, these restrictions do not underminein any way the prince’s ultimate right to command.94

In the end, however, Burlamaqui breaks decisively withPufendorf and takes up the arguments made by Grotius and, inparticular, Barbeyrac before him:

Enfin, il y a une autremaniere de limiter le pouvoir de ceux a quila souverainete est commise; c’est de ne pas confier tous lesdifferens droits qu’elle renferme a une seule et meme personne,mais de les remettre en des mains separees, a differentespersonnes ou a differens corps, pour la modifier, ou pour larestraindre.95

This change of position is made explicit in the following chapter,dedicated in fact to the ‘‘parts of sovereignty’’. Indeed, while inPufendorf the title of the chapterwas ‘‘Des parties de la Souveraineteen general, et de leur liaison naturelle’’, thus underscoring theirindivisibility, Burlamaqui’s is entitled ‘‘Des Parties de la Souver-ainete, ou des differents droits essentiels qu’elle renferme’’. Thischapter begins with a repetition of Barbeyrac’s note, or, moreaccurately, with a word-for-word transcription of it:

L’on peut considerer la Souverainete comme un assemblage dedivers droits et de plusieurs pouvoirs distincts, mais conferespour unememe fin, c’est-a-dire pour le bien de la Societe, et quisont tous essentiellement necessaires pour cette meme fin: cesont ces differens droits, ces differens pouvoirs, que l’on appelleles parties essentielles de la souverainete.96

The chapter, which goes on to list the various parts ofsovereignty, in turn forms the preamble for introducing—explicitlycriticising Pufendorf’s observations on irregular states—the theoryof mixed government or of the balance of power, generallyconsidered to be Burlamaqui’s only original theory. This reaches itsculmination in the chapter on the ideal form of government,identified, as to monarchies, with the English model of mixedgovernment and, as to aristocratic regimes, with electivearistocracy ‘‘tempered by democracy’’. Nonetheless, if one looksclosely at Burlamaqui’s reasoning it is very difficult to trace either atheory of separation or even a genuine theory of the balance ofpower, an expression that Burlamaqui does not even use otherthan to mention ‘‘balancement de puissance’’ twice and ‘‘balance-ment 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 sovereigntyconsists of different rights and distinct powers, which are howeverconferred for the one same purpose. In listing the different parts ofsovereignty, Burlamaqui first examines legislative power,which hesees as the part of sovereignty that underlies all the others andultimately exists in order to make laws,98 defined as general andperpetual rules. Legislative power is joined by coercive power,which is the right to decide penalties and impose them onwhomever disturbs society; judicial power, the right to control thedoctrines that are taught by the state; military power, the right todeclare war and make peace, to draw up treaties and concludealliances with foreign powers; the right to appoint juniorministersand magistrates; and, finally, to levy taxes and to oversee the rightto mint money and the right to hunt and fish. Nonetheless,Burlamaqui’s attention is not concentrated on the way in whichthese powers have to be assigned in order to achieve a balance andrestraint of authority and neither is it aimed at identifying theinstitutional mechanisms that would need to be primed for thatpurpose. The only suggestion touching on this is merely an

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’Etat de Geneve, 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 reside originairement dans

le peuple, et dans chaque particulier par rapport a soi-meme, et que c’est le

transport et la reunion de tous les droits de tous les particuliers dans la personne du

Souverain, qui le constitue tel, et qui produit veritablement la Souverainete’’.88 PDP, I, VII, § XXII: ‘‘quand meme on supposeroit qu’un peuple auroit

effectivement voulu accorder a son Souverain une puissance arbitraire et sans

bornes, cette concession seroit nulle par elle-meme, 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 Republicains’’; 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

meme les noms leur en sont odieux’’, Le Citoyen, ou le fondements de la politique,

translation by Samuel Sorbiere, 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

creature, puisque le souverain Estre ne l’a pas lui-meme? Son domaine absolu n’est

pas fonde sur une volonte aveugle; sa volonte souveraine est toujours determinee

par les regles immuables de la sagesse, de la justice et de la beneficence’’.94 PDP, I, VII, § XXVII–XLVII: De la souverainete limitee.

95 PDP, I, VII, §XLVIII.96 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.


example and relates exclusively to monarchies. It can be found inthe passage that introduces the idea of the partage of sovereigntyfor the first time: legislative power and the power to create themain magistrates are conferred on the ‘‘whole body of the nation’’,executive and military powers are assigned to the king, while anaristocratic senate is entrusted with judicial power and that oflevying taxes. Rather than being a purely functional separation ofpowers, this partage is thus presented as an instrumentwithwhichto create an equilibrium between different social groups, the king,the Lords (or the nobility), and the Commons (the people), anequilibrium which was historically accomplished in northerncountries, such as England, and which led to ‘‘gouvernementgothique’’.99 But contrarily, as regards aristocracy tempered bydemocracy, he makes no suggestion—not even by citing theexamples of Sparta and Rome—about which parts of thesovereignty must be assigned to the two components into whichsovereignty is divided, namely the aristocratic council and thepeople.

The only general indication that can be drawn—valid for bothmixed monarchies and aristocracies tempered by democracy—isthat legislative power must be entrusted to the ‘‘corps meme detous les citoyens, forme par la reunion de tous les ordres de l’Etat’’,the body appointed as the unitary sovereign of the state, whosesupreme will ‘‘c’est la loi elle-meme par laquelle le corps entier dela Nation fait connoıtre sa volonte’’.100 Consequently, it is possibleto establish how for Burlamaqui the partage of sovereignty occurson two levels. The first is that of the legislative power, an idea thatseems similar to what Bernard Manin has defined as the‘‘liberalism of counterpowers’’ or of ‘‘balances’’.101 The second isthat of the remaining parts of sovereignty (aboutwhich he does notgo into detail except in relation to monarchies), but theinformation provided is not of a general nature and merely pointsto different possibilities of distributing the diverse rights ofsovereignty.102 Instead, what Burlamaqui is eager to stress is thatin such a way the unity of the state and of sovereignty areguaranteed by the unification of all the orders within the state thatcontribute to producing the law. These are presented as truecontracting parties of the convention—which we could define asconstitutional—that bring into being the founding laws, the end

purpose of which is the distribution of various parts of sovereigntyto the different bodies of the republic. Once this convention isclosed and the foundational laws are fixed, all the orders thatcomprise the republic are invested with the parts of sovereigntyassigned to them by the law, of which, Burlamaqui points out, theyare in fact the executors, ‘‘puisque c’est de la loi meme qu’iltiennent leur pouvoir’’.103 Therefore this partage does not suffer thedisadvantage of reintroducing plurality and thereby the division ofthe body politic. Indeed, just as Grotius had indicated, it is enoughfor the law to clearly establish the rights and the competencies ofeach body so that no one can encroach on or usurp the prerogativesof the others. As a consequence, each body is independent of theothers in as much as it is subordinate only to the law and holds itsown right to command: ‘‘les differens ordres de l’Etat qui ont part ala Souverainete, possedent les droits qu’ils exercent par un titreegal, c’est-a-dire, en vertu de la loi fondamentale, et non pas a titrede commission, comme si l’un n’etoit que leministre ou l’executeurde la volonte de l’autre’’.104

In this doctrine of mixed government we can follow a decisivemove away from Pufendorf and a return to Grotius. If, in fact, theidea of a sovereignty of the law, to which all the orders of the stateare subject, could still be traced in the pages in which Pufendorfadvocated the possibility of a limitation of sovereignty throughfundamental laws defined as ‘‘Regles fixes et perpetuelles’’, it wasnevertheless clear that for Pufendorf neither the pact of submissionnor the particular oaths by which the king swore to respect suchfundamental laws created any form of equality between king andpeople. On the contrary, the asymmetric relation of subordinationof one to the other remained intact and the people had no right toconstrain or judge the king.105 Instead, in the case of Burlamaqui,behind the idea of the sovereignty of the law there can be seen anotion of a contract which cannot be likened to Pufendorf’s pact ofsubmission, which in fact gave rise to a formof simple government.Indeed, Burlamaqui’s idea is clearly of a pact between equalpartners, because there can only be partage of sovereignty betweenequal partners, as Grotius had in fact insisted.106 And this pactbetween equal partners ends by taking the place of the double pactof association and submission:

Si le Gouvernement est etabli sur ce pied-la, par l’acteprimordial d’association, il se fait alors une espece de partagedes droits de la Souverainete, par un contrat ou une stipulationreciproque entre les differens corps de l’Etat. Ce partage produitun balancement de puissance, qui met les differens corps del’Etat dans une dependance mutuelle, qui retient chacun deceux qui ont part a l’autorite souveraine, dans les bornes que laloi leur assigne, et qui fait ainsi la surete de la liberte.107

This distancing from Pufendorf also has a very precise politicalsignificance. All of Pufendorf’s analysis of limited sovereignty wasexplicitly centred on monarchical and aristocratic forms ofgovernment since, he declared, in states governed by the peoplecould be, properly speaking, no limitation of sovereignty: since thelaws are made by the whole body of the people (that is, by all thecitizens united in assembly) nobody, outside of the assembly,acquired any significant right, and therefore the people can changethe laws any time theywant.108 It was exactly this that Burlamaqui

99 PDP, I, VII, §L: ‘‘Ce partage produit un balancement de puissance, qui met les

differens corps de l’Etat dans une dependance 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 balancee par

le pouvoir du Peuple, et un troisieme ordre sert comme de contre-poids aux deux

premiers, pour les tenir toujours dans l’equilibre, et empecher l’un de s’elever au-

dessus de l’autre’’. These affirmations are taken up again in II, II, §XXXIII: ‘‘A l’egard

des Monarchies, il convient, par exemple, que le pouvoir militaire, le pouvoir

legislatif et le pouvoir de lever des subsides, soient remis en differentes 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 declaration de la guerre ou de la paix, fussent en la

puissance du roi; que les grands exercassent 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.

103 PDP, II, I, §XXII.104 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

egalite, et par consequent un partage de la souverainete’’.107 PDP, I, VII, §XLIX.108 DNG, VII, VI, §VIII.


considered to be the problem with popular states, which heinsisted were the worst type of government as they were devoid ofany advantage. The rule of the common people for him presentedan excess of liberty that translated into disorder, license andanarchy and opened the door to the worst kind of servitude. It wasthis gloomy picture of popular regimes that Burlamaqui opposedwith his ideal of aristocracy tempered by democracy.109

It is possible to see, in Burlamaqui’s work, the formulation of aliberal theory of the state intended to denounce the dangers ofabsolute sovereignty as much for the king as for the people and tosupport a search for an institutional instrument that enabled thelimitation of power by dividing it up in a system of differentcounterbalancing bodies.110 Nonetheless, this interpretation ofBurlamaqui’s thought leads to justifiable perplexity, not onlybecause he perceived the aim of the state as the pursuit of thehappiness of its subjects, but also because he gave the sovereignthe power to ensure that doctrines taught publicly were in keepingnot only with the welfare and peace of society but were alsoconsistent with the truth, and finally because he maintained thatlegal obligation covers not only external actions but also man’sinner life and that the sovereign, when prescribing laws for hissubjects, should aim to make them wise and virtuous.111

If in fact one looks at the real political significance ofBurlamaqui’s theory of balance the perplexities increase decidedlyand the extreme vagueness of the solution proposed for mixedaristocracies does not appear accidental. Certainly, Burlamaqui hadexplicitly declared in his will that he did not wish to publish thesecond part of his manuscript, believing it incomplete, and hisfamily was deeply opposed to its publication, which was insteaddesired by the pastor Jacob Vernet, the Genevan editor ofMontesquieu’s Esprit des lois. All the same, there was littledifference between the manuscript of the edition and themanuscript compendium of lessons that Burlamaqui himselfhad held at the Genevan Academy in the 1720s.112 And,discounting the motives that could have driven Burlamaqui torefuse to publish the parts of his lessons concerning the ‘‘civilgovernment’’, the theories that he put forward had a very clearpolitical significance, and just as clear was the political motivationof their publication in 1751. This was to present as a series ofgeneral political principles the theories that the city oligarchy hadused to defend its prerogatives and to legitimise its power againstthe claims of the Citoyens et Bourgeois, who for their part defendedthe rights of the General Council and the assembly of all citizens.113

In particular, apart from the problem of establishing whether itwas Burlamaqui who exerted his influence on the Genevangovernors, or whether, as seems more plausible, it was they (inparticular his brother in law, Jacob de Chapeurogue)who passed on

their ideas to the young professor of natural law, it is beyond doubtthat the lessons and the posthumous text contain a faithfulrendering of the government’s ideas and that they especially reflectthe transformation of the government in the early twenties, achange that can be considered the abandonment of the theory ofsovereignty dating back to Bodin and Pufendorf in favour of thatelaborated by Grotius and Barbeyrac.

At the beginning of the century the magistrates had in factapplied the distinction between titularity and the exercise ofsovereignty, drawing inspiration from the first two authors andhad described their power as stemming from the sovereignGeneral Council, in whose name and by whose express mandatethey exercised it. Thus they treated the counsels of government asrepresentatives of government. However, the objections madeagainst this kind of reasoning by supporters of the people’s partyand the conclusions that they themselves drew from it hadprompted the magistrates to modify their theory and, followingGrotius and Barbeyrac, to regard the transfer of the exercise ofpower as a definitive act implemented as a result of unanimousconsensus and the fundamental laws of the state. These thereforebecame the basis of the prerogatives of each council, which by thenconsidered them entitlements exercised under their own authorityand not derived from the General Council. And the Genevanmagistrates defined this division of the parts of sovereignty as anequilibrium of government in which the different orders of thestate counterbalanced one another, forming a counterweight thatmade it possible to limit and reciprocally control the authority ofthe various councils.114

Nevertheless, the regime that the Genevan magistrates, andBurlamaqui, depicted with the image of balance and of counter-weights was far from being a moderate form of government withan effective division of powers. Resembling a set of Russian dolls,the system of the councils did not provide for different peoplesitting on different organs with different competencies. Rather, inthe main it allowed a small number of people to control practicallyall functions of government, taking into their own handslegislative, executive and judicial powers, sitting in all thetribunals—higher and lower—including the one which had thelegal power to bestowmercy. Furthermore, the elective system forco-option conferred on these same people the authority to overseeaccess to political offices without any accountability. It wascertainly not far from the true Rousseau when, in the Letters from

the Mountain, he denounced as astonishing the way in which a freestate had favoured the Small Council of Geneva with such aconcentration of powers.115

5. Where Rousseau places Rousseau in the tradition of naturallaw

At this point the argument I intend to put forward may alreadybe clear. When Rousseau attacks Grotius and Barbeyrac in thechapter on the indivisibility of sovereignty, he is also, and above all,attacking the doctrine of mixed government and of partage putforward by Burlamaqui. Of course, Rousseau did not mentionBurlamaqui by name in order to avoid an explicit head-onchallenge of the man who was deemed to be the most qualified

109 PDP, II, II, §XXIX–XXIX.110 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 theWaldensian 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 facon 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 publies par la Faculte de droit de l’Universite de Geneve

(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 themes du discours politique du patriciat genevois

entre 1700 et 1770, Geneve, These 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.

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

republicanisme de Rousseau mis en contexte: le cas de Geneve’, 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.


spokesman of the Genevan government, but in reality he did evokehim in his writings in order to contradict him. He did so right in thesubtitle of the Social Contract, ‘‘or principles of political right’’, andhe rejected him in Emilewhen he stated that the science of politicallaw was yet to be born.116 Moreover, he quoted him in the chapterjust mentioned without actually naming him, just before namingGrotius and Barbeyrac: instead of using the usual terms of jurists,savants, philosophers or writers, he chose to speak of the ‘‘auteursen matiere de droit politique’’, accusing them of inexactitude andobfuscation in judging the respective rights of kings and of thepeople on the basis of principles which they themselves hadestablished.117

Thus if one analyses the content of this brief chapter whatimmediately grabs one’s attention is that this is the first time thatthe Social Contract mentions the theory of the distinction betweensovereignty and government, between an act of sovereignty, or of ageneral will, and an act of the magistracy or, rather, of a particularwill. This distinction was already present in the Discourse on

Inequality and was the presupposition that was rigorously upheldin the Political Economy. But only in the Social Contract doesRousseau argue specifically against the idea of a division ofsovereignty between bodies that enjoy a right under their owncommand, and against the idea of magistrates that are not simplecommissioners or ministers that execute the will of others, andcontends that the elements that are considered parts ofsovereignty instead derive from it: ‘‘that the rights which onetakes for parts of this sovereignty are all subordinate to it, andalways presuppose supreme wills which these rights simplyimplement’’.118

Furthermore, if one looks at those parts of the Social Contract

that stand out for their intensity and polemical acrimony, they areprecisely those that deal with the theory of alienation and thedivision of sovereignty, of representation and civil religion, allpassages inwhich the figures of Grotius, Barbeyrac and Burlamaquiare expressly or tacitly involved.119

It therefore seems clear to me that Rousseau had consciouslychosen to attack both the anti-republican political meaning thatBarbeyrac had resolved to imprint on the science of natural law byreferring back to Grotius, aswell as theway that both these authorshad been used to support the politics of the Genevan government, atactic that was consecrated in the pages of Principes du droit

politique by Burlamaqui. Nevertheless, it should still be noted thatthe politically negative judgmentmade by Rousseauwith regard tothese three authors is not linked simply to the actual politicalcontext of the Genevan conflicts, but also has a specificallytheoretical foundation, given the eminently political functionattributed to the art of writing. On the basis of an anthropologycentred on the notion of interest,120 Rousseau—postulating that a‘‘disinterested’’ will is impossible—maintains that the search fortruth presupposes a precise existential condition, one in which theindividual has an interest in trying to speak the truth and above allhas no interest in concealing it, and does not depend for thesatisfaction of his material needs on a power that could ask or forcehim to distort or disguise it. For this precise reason one can say that,in the final analysis, truth and science have a republican significancefor Rousseau. By appropriating the definition that absolutist writershad helped to devise, for Rousseau a republican is most of allsomeone who defends the rights of the people and does not seek todevalue or diminish them in favour of the rights of the king and themagistrates. But defending the interests of the people ultimatelymeansdefending the interests of truth and this is possible only if oneis of the people, if one is a citizen of a republic.121 Consequently, forRousseau the true science of political right cannot be anything butrepublican and it is in this republican sense that he wishes to reviseand reform the tradition of natural law, subjecting it to a profoundcritique, albeit without rejecting it.

On the contrary, he not only shows that he believes that there isa tradition of natural law and that this tradition finds its unitaryidentity in the sharing of certain common theoretical andaxiological assumptions, but at the same time he openlyannounces membership of it, and thus makes a deliberate choiceof sides.122 The first of these assumptions is the need to construct amoral science based on certainty—that is, a normative theory ofman and of society—which Rousseau identifies with the science ofnatural law and the search for its principles in the nature of manhimself, as he states in the Preface on the Discourse on Inequality:

It is this ignorance of the nature of man that casts suchuncertainty and obscurity on the genuine definition of naturalright: for the idea of right, says M. Burlamaqui, and still morethat of natural right, are manifestly ideas relative to the Natureof man. Hence, he goes on, it is from this very Nature of man,from his constitution and his state, that the principles of thisscience have to be deduced.123

And as with the earlier authors, for Rousseau the project ofbuilding a moral science endowed with certainty is designed to

116 OC, IV, 836.117 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,

whichwas 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 egal’’ 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.

120 On this see D. Seglard, ‘L’interet du contrat social chez Rousseau’, in C. Lazzeri, D.

Reynie (eds.), Politiques de l’interets, Annales Litteraires de l’Universite de Franche-

Comte, n. 679 (1998), 295–329; B. Bernardi, ‘La notion d’interet selon Rousseau: une

pensee 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

verite dont ils ne se soucient gueres ne songent qu’a leur interest 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 etre etablis par ces gens-la!’’, OC, IV, 837.122 I will leave to one side, for themoment, 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 byM. Panoff, ‘La loi naturelle dans la Preface duDiscours sur l’origine et les

fondements de l’inegalite parmi les hommes de Rousseau’, in Annales Doctorales, II

(1999), 65–83.123 ‘Preface’ to the Second Discourse, in The Discourses and Other PoliticalWritings, ed.

V. Gourevitch (Cambridge: Cambridge University Press, 1997), 125–6; OC, III, 124.


oppose scepticism on two opposite fronts: on the one hand, it isagainst the contemporary reformulations of rationalismwhich hada naturalistic and materialistic bias, and on the other, it opposesthe resurgent forces of fanaticism and intolerance.124 The secondassumption concerns the articulation of natural law and politicallaw, the need to search for the foundations of society by going backto the state of nature: ‘‘Les Philosophes qui ont examine lesfondemens de la societe, ont tous senti la necessite de remonterjusqu’a l’etat de Nature’’, a necessity that Rousseau had also fullyrecognized.125 The third common assumption is the contractualone, in other words the fact of founding political obligation on thefree consensus of those who surrender to it: ‘‘suivant la plus sainepartie de ceux qui ont discute ces matieres’’, Rousseau affirms, ‘‘j’aipose pour fondement du corps politique la convention de sesmembers’’.126 Nevertheless, Rousseau’s move to include himselfwithin the modern tradition of natural law was accompanied bytwomoves bywhich he intended to radically distance himself fromit.

The first consists in the well-known methodological criticismthat Rousseau made of all his predecessors: that while havingjustly felt the need to go back to the state of nature, ‘‘aucun d’euxn’y est arrive’’.127 From this point of view the negative judgmentchallenges all earlier theories, whichwere incapable of stripping allthe social attributes, passions, knowledge and the rationality thatnatural man had acquired from society. In this instance theaccusation is unconcerned with political options, but Rousseautakes great care to specify exactlywhich aspect of each author he isattacking, thus demonstrating that he clearly understands that heis not dealing with a unanimous and unitary tradition: with regardto Hobbes he criticises the theory of the war of all against all; as toCumberland and Pufendorf, the timidity of natural man; as toLocke, the analysis of conjugal society and the theory of property;as to Grotius, Barbeyrac and Burlamaqui, the theory of naturalsociability, and so on. It is certainly not possible to examine here allthe points in respect of which Rousseau distanced himself from hispredecessors, nor the radically new way in which he set out theanalysis of the state of nature and the birth of society.128 It is,however, possible to declare that his conclusions above all collidedwith the basic components of the science of natural law whichBarbeyrac and Burlamaqui had meant to construct: the broaddefinition of natural law they had envisioned and most impor-tantly causality that they had established between religion,morality and politics by incorporating natural religion in naturallaw. In reducing ‘‘proper’’ natural law to a small nucleus, to the twoprinciples of self-love and compassion, Rousseau removes not onlysociability, but also natural religion, the knowledge of divinity. Thisallows him to frame the problem of obligation discussed by hispredecessors in an entirely new way, in the genealogicalperspective of the hypothetical history of governments, and hesucceeds in establishing the chronological primacy and conceptualautonomy of political obligation over the moral-religious withinthis perspective. Natural law in Rousseau no longer aims to guideman towards sociability as a way of escaping the state of nature,

nor does it wish to dictate the content of positive laws, but it isaimed at determining the conditions that would ensure that thisescape might lead to a legitimate society.129

This particular point reveals the second way in which Rousseaudistances himself fromhis predecessors, and this time the criticismis both theoretical and political. Once they had posited the truefoundation of political obligation, namely the free consensus ofthose who assume it, earlier natural lawyers had gone on to drawincorrect conclusions.130 Here the political differences becomeimportant, because Rousseau does not hesitate to apply to hispredecessors the qualifications that they had used themselves,namely the antitheses of monarchism and republicanism. Fromthis point of view, the authors that deviate from the truth earliestbecause of their political positions are themonarchist authorswho,like Grotius, Hobbes and Pufendorf, hold that free consensus maygive rise to unconditional subjection. However, it appears that injudging these three authors Rousseau deliberately distinguishesbetween them. Hobbes is a pro-monarchist and anti-republicanauthor, whose principles are destructive towards all republics131;but Rousseau nevertheless shows him respect, not only for hisgenius and the depth of his ideas, but in a certain sense also for themoral and theoretical coherence with which he pursued his aim ofdefending the power of kings for better or for worse, withoutcompromising his principles with opportunism. In order to do sohe had certainly been forced to resort to sophisms, but whilechoosing the opposite camp—which for Rousseau was the wrongone—in his own way he remained faithful to the normativeassumption of natural law. On the other hand, Grotius, basing thelaw on fact, systematically betrayed this assumption, justifyingany type of political reality from unconditional slavery to the rightof resistance. Rousseau seems to impute this betrayal of thenormative dimension of natural law to the specific circumstancesof his life, which led him away from public commitment to theservice of a republic in need of protection and the subsistenceguaranteed by a king. In contrast, the almost respectful silencetowards Pufendorf seems to suggest that Rousseau judged thisauthor to be pro-monarchist but not anti-republican. Despitehaving acknowledged the possibility that sovereignty was alien tothe people and despite having also expressed his preference formonarchies, Pufendorf however did not hesitate to examinewithout prejudice the formof the democratic state, onmany pointscorrecting the ‘‘outre’’ anti-republicanism of Hobbes. But I willreturn to this aspect at the end of this article.

Alongside these pro-monarchist authors, we find authors likeBarbeyrac and Burlamaqui, who, together with Grotius, receiveharsher disapproval from Rousseau. Unlike the monarchists,Barbeyrac and Burlamaqui had well understood that subjectioncould not occur under all conditions, and thus the pact could notbring about all forms of sovereignty. However, they still appliedthis principle in a muddled way, an inconsistency which was onceagain directly tied to the fact that they sacrificed the quest for truthto the defence of different interests with which they had sided. InBarbeyrac’s case this was the justification of the English Revolutionand also the defence of the rights of the kings and of the citizen’soligarchies, which he served from time to time. In Burlamaqui’s itwas purely and simply the defence of the oligarchic government ofGeneva.

On the opposite side there are the authorswithwhomRousseaudeclared himself in agreement, defining them as republicans. In

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’etat de nature,

nous examinerons [. . .]’’, OC, IV, 837.126 OC, III, 806.127 OC, III, 132.128 For a detailed analysis of the commonpoints 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 systeme de

Rousseau (Paris: Vrin, 1974) is required reading.

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.


particular there were Sidney and Locke, in whom he recognised aperfect agreement over principles regarding how to deal withpolitical arguments, principles that can be recognised in thecommon insistence on the inalienability of liberty and on thefundamental preoccupation of defending it against the inevitabletendency of governments to degenerate and abuse their power.132

Even so, while placing himself in the same political camp as Lockeand ‘‘republican’’ defenders of the right of resistance, Rousseauultimately judges the conceptual and political instruments thatthey had used to defend liberty to be theoretically incoherent andinefficient in practice. The theory of partial alienation, supportedby Locke and the promoters of the right of resistance, and whichRousseau himself had accepted in the Discourse on Inequality,133 infact resulted in an irresolvable quarrel at the heart of the socialstate between the state as a whole and any of its constituent partsover who should judge in any eventual violation of the non-alienated residual rights.134 This problem is identical to that posedby the contract of government, which Roussueau rejects preciselybecause it would presuppose, were it ever violated, that there wasno superior entity which could pass judgement, and thus the stateof nature could potentially continue to exist within the socialstate.135 Therefore, Rousseau comes to find the same inconsistencyin all the doctrines that appealed for the right of resistance—bethey radical and republican ones, or moderate and anti-republicanones—for all presupposed, if not a partage of sovereignty, at leastthe attempt to ‘‘faire l’economie’’ of sovereignty as in Barbeyrac orBurlamaqui, implicitly accepting only forms of limited sovereigntyor of mixed government.136 What is more, as the way in whichthese doctrines were used in Geneva demonstrated, they servedonly to deceive the people and to prevent them opposing theillegalities and injustices committed by those in government.Permitted only in case of serious abuses, the right of resistancepractically became an instrument with which to accuse the peopleof sedition even when they demanded in entirely peaceful waysthat their rights be respected.

Abandoning therefore the theory of partial alienation, of thegovernmental contract and the supremacy of law that he arguedfor in the Second Discourse, in the Social Contract Rousseaurecognises the validity of the criticismsmade by absolutist authorstowards the promoters of popular sovereignty and of the right ofresistance. He thus inserts the theory of absolute sovereignty in thecategorical context put forward by the defenders of inalienablepopular sovereignty and of the subordinate role of those whogoverned, attempting to make it consistent through the revision ofthe theory of the pact. This implies the rebuttal of the doctrine ofthe pact of government, the abandonment of the idea of thesupremacy of law in favour of the primacy of the general will, thereasoned development of the distinction between sovereignty andgovernment, and selecting the means of preventing the abuses ofgovernment not in the demand for the right of resistance, but in theregular meetings of the sovereign people’s general assemblies. Inconsequence, the doctrine expounded by Rousseau in the Social

Contract is not only a rebuttal of the theory of partage of

sovereignty and of mixed government upheld by Barbeyrac andBurlamaqui, on the same footing as the ‘‘absolutist’’ doctrine ofalienation, nor is it merely an assault on the way in which thetheories of the natural lawyers had been put to use in Geneva tofavour the government councils, but it is also as a re-evaluation ofsome aspects of his own thought as it had been presented in theDiscourse on Inequality and in the Political Economy. It was a re-examination of the entire tradition of the right of resistance and ofthe theses supported by the authors that he considered repub-licans, as well as of the same reasoning that was used in Geneva todefend the popular party, for even this was, in his eyes, a prisonerof theoretical incoherence and a vacillation between an absoluteand a limited conception of sovereignty.137

Nonetheless, this rethinking of earlier tradition, which drovehim to appropriate the notion of absolute sovereignty in order todefend the liberty and the rights of the people and to limit thepower of the governors, should not be interpreted as forsakingLocke to favour Hobbes, as has often been argued from Vaughanonwards. Rather, it is a revision carried out precisely to keep faithwith the principles that he believed Sidney and Locke had foughtfor and had put into action, at least in part, under the emblem of areturn to Pufendorf—the Pufendorf who was the ‘‘disciple ofHobbes’’ in the sense described by Fiammetta Palladini as someonewho took up and rethought Hobbes, ‘‘choosing one Hobbes overthe other’’ and deducing the true outcome of the premises that hehad made.138 More to the point, it seems to me that Rousseau’smoderate attitude towards Pufendorf, which Derathe had noted,interpreting it as a sign that he recognised his indebtedness to thisauthor’s thinking,139 can be understood by rereading the passagesof the seventh book of the Droit de la nature et des gens in whichPufendorf, drawing onDe cive and implicitly refuting the Leviathan,rethought Hobbes’s theory of the pact and analysed democraticsovereignty in a theoretically impartial way. These specificpassages make it possible, in my opinion, to advance thehypothesis that Rousseau considered Pufendorf to be pro-monarchist but not anti-republican and that he was ever mindfulof the reasoning of the German jurist when he constructed histheory of the social contract and of popular sovereignty, ‘‘over-turning’’ Hobbes’s pact.

Pufendorf’s theory of the pact is, as is well known, built on therecognition of three distinct stages: firstly, an agreement that givesbirth to society and is drawn up among individuals; secondly, adecree bywhich the form of government is established; and finally,a second agreement to which the governed and governors givemutual assent. After having put the theory forward, Pufendorf feltit necessary to return to Hobbes’s theory of the pact in order torefute it at length. This leaves the impression that he aimed tocorrect the theories put forward in De cive by openly distancinghimself from the more radically antidemocratic positions of theLeviathan. Indeed, it is in that work that Pufendorf sees theobjective that the English philosopher meant to achieve in hispolitical books as being most clearly expressed, namely that of

132 OC, 812. On the relations between Rousseau, Locke and Sidney, see G. Silvestrini,

‘Republicanisme, contrat et gouvernement de la loi’, Les Cahiers Philosophiques de

Strasbourg, XIII (Spring 2002), 37–66.133 OC, III, 178: ‘‘les sages meme virent qu’il faloit se resoudre 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 superieur commun qui put prononcer entre eux et le

public, chacun etant en quelque point son propre juge pretendroit bientot l’etre en

tous, l’etat de nature subsisteroit et l’association deviendroit necessairement

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 reciproques, ce qui repugne de toute manieres a l’etat civil’’.136 J. Terrel, Les theories du pact social, 288.

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, Republicanisme, 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

‘‘inflechissement autoritaire’’ carried out thanks to a return to Pufendorf.


opposing himself to: ‘‘a ces esprıts seditieux, qui ont tache, dans ceSiecle, de brider l’Autorite des Rois, et de la soumettre au caprice deleurs Sujets’’. And to prevent rebellion against the kings byaccusing them of breaking the pledges made to their subjects,‘‘Hobbes se mit dans l’esprit de soutenir, qu’il n’y avoit point deConvention entre le Roi, et les Sujets’’, thus attributing an absoluteand unlimited power to the kings, releasing them from theobligations of a pact with their subjects. However, Pufendorf adds,‘‘quoi qu’il soit extremement de l’interet du Genre Humain, demaintenir inviolablement l’Autorite des Rois, et de la defendrecontre les attentats des esprits mutins; il ne faut pas pour cela nierdes veritez evidentes’’.140

Without going over all the passages of Pufendorf’s rebuttal ofHobbes, it seems important to underscore certain aspects of it. Thefirst is that the text which he examines ‘‘en detail’’ is the De Cive,and yet the doctrine that is implicitly under attack is the theory ofrepresentation expounded in the Leviathan, which was aimed atremoving the link between democracy and the actual formation ofsociety as it was openly expressed in the chapter on the forms ofgovernment contained in the 1642 Treaty: ‘‘Ceux qui se sontassembles pour former une societe civile, ont des la commence unedemocratie’’.141 If, as Lucien Jaume has emphasised, precisely this‘‘democratie a base de souverainete populaire’’ was for Hobbes thebiggest epistemological obstacle in the construction of his theoryof the state, he overcomes it by developing another thesis set out inthe De Cive, namely the identification of the people with thesovereign, the first nucleus in the future theory of representation:‘‘C’est le peuple qui regne en quelque sorte d’Etat que ce soit’’.142

Now, it is just this link that Pufendorf aims to confound, defining itas ‘‘un jeu de mots, et une vaine subtilite’’,143 since it separates theact of association from that of subordination. Althoughnot going sofar as to apply full juridical status to the people by virtue of the pactof association alone, he clearly gives them a political standingindependent of the king, and this is especially evident from theinterregna, which is a condition similar to the ‘‘espece deDemocratie’’ that springs from the first pact with which acommunity has decided to form a state.144 Moreover, in theparticular case of the agreement which gives rise to the democraticform of government, Pufendorf takes it upon himself to demon-strate that the people can be a contracting party.

In the De Cive Hobbes had contended that democracy is notconstituted 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 acontract whose object is the constitution of one of the contractingparties. No pact can in fact be made between the people and the

citizen: not before the existence of the people, because they cannotbe a contracting party until they actually exist and not after they arebought into existence, since thiswould be a pactmadeby the peoplewith themselves. Indeed, given that thewill of the people comprisesthe will of every individual, the people as such are free to releasethemselves from all obligations previously stipulated.145 Againstthis type of reasoning Pufendorf argues the need for the pact ofsubordination even in democracies, because, he declares, the pactbetween individuals only does not allow the founding of theobligation of obedience of each individual to the sovereign, and thesimple promise of agreeing on the condition that the others woulddo the same would make the obedience of everyone dependent onthat of all the others.146 In thisway, hemakes clear the possibility ofa pact between the citizen and the people intended as two distinctsubjects who cannot be assimilated into a promise made tothemselves, which cannot produce a true obligation:

Mais il faut savoir, que, dans un Etat Populaire, la difference qu’ily a entre chaque Citoien, et l’Assemblee, qui decide des affairespubliques, n’est pas fondee sur une simple maniere d’envisagerdiversement les memes personnes; et que ce sont au contrairedes personnes veritablement distinctes, quoi que de differentenature, qui ont chacune une volonte distincte, des actionsdiverses, et des droits tous differens [. . .] Ainsi rien n’empeche,qu’il ne se fasse une Convention entre chaque Citoien etl’Assemblee du Peuple’’.147

Certainly, here Pufendorf is speaking of the second agreement,the so-called pact of subjection. Nevertheless, he declares that eventhis pact is superfluous, and implicitly locates the act of the birth ofthe people not after the first agreement, but after the decree bywhich the decision to form a democratic government was made.This involves an acceptance to subject one’s own individual will tothe will of the majority.

It therefore seems natural to ask whether it was Pufendorf’sreflections on Hobbes’s pact that inspired Rousseau—who aimed toestablish the inalienable sovereignty of the people—to develop thetheory of the pact of association only, understood as a pactbetween individuals and the community, a pact which, thoughcontracting everyone to himself nevertheless preserves thedistinction between two distinct subjects, a distinction necessarybecause the pact itself has binding powers:

This formula shows that the act of association involves areciprocal engagement between the public and private indivi-duals, and that each individual, by contracting, so to speak, withhimself, finds himself engaged in a two-fold relation: namely, asmember of the Sovereign toward private individuals, and as amemberof the State toward the Sovereign. Buthere themaximofcivil right, that no one is bound by engagements toward himself,does not apply; for there is a great difference between assumingan oblication toward oneself, and assuming a responsibilitytoward a whole of which one is a part.148

Welcoming Pufendorf’s criticism of the Hobbesian model of thepact, Rousseau discards the moment of the pact between singlepersons, deeming it incapable of producing obligation on the partof the individual, the vertical relation of subordination between the

140 DNG, VII, II, §IX.141 Le Citoyen, VII, V, 170.142 Le Citoyen, XII, VIII, 222; L. Jaume, Hobbes et l’Etat representatif moderne (Paris,

1986), 122–4.143 DNG, VII, II, §XIV. I thank Fiammetta Palladini for having drawnmy 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 (Gottingen, 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 europaische Fruhaufklarung (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.

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.


single person and the community, and places the convention thataccording to Pufendorf was at the basis of democratic government,not only at the birth of political society but also at the centre of itslife, since every act of sovereignty is defined as a conventionbetween 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 thecontract appears in all the authors conceptually aporetic andfactually plausible. It is the image recalled by Pufendorf of theRoman people meeting on the banks of the Tiber and tacitlydeciding to join together that establishes the form of monarchistgovernment before sovereignty is conferred on Romulus. Inrelation to this image, or that of the Genevans gathered togetherin the Cathedral of Saint-Pierre, certainly the idea that theassociation comes about after all the participants—one by one orall at the same time—have declared to the assembly their personaldesire to subject themselves seems definitely more realistic thanthe notion of an exchange of promises made one at a time betweeneach individual and all the others.

But in my opinion this is not the only aspect that makes itpossible to argue that Rousseau moulded his theory of popularsovereignty by rereading De Cive in the light of Pufendorf’scriticism. Whereas in the De Cive Hobbes had placed democracy atthe root of all forms of state, only to then erase these assertionsfrom the Leviathon, Pufendorf appears simultaneously to draw onand modify that thesis. He takes it up when he argues thatdemocracy is historically the first form of government:

J’aimis aupremier rang laDemocratie, et c’estparelleaussique jevais commencer; non que je la croie la plus illustre forme deGouvernement, ou la plus commode; mais parce qu’elle estcertainement la plus ancienne parmi la plupart des Nations:outre qu’il est manifestement conforme a la Raison, de supposer,que ceux, qui renoncoient a l’etat de Liberte et de l’EgaliteNaturelle, pour se joindre en un seul Corps, voulurent d’abordgouverner en commun les affaires de la Societe. En effet, lemoiende s’imaginer, qu’un Pere de famille, qui apres avoir appercu lesincommoditez d’une vie solitaire, entroit volontairement dansune Societe Civile avec d’autres semblables a lui, oubliat si fort enunmoment son ancien etat d’independance, ou il se conduisoit asa faintaisie dans tout ce qui regardoit sa propre conservation,que de soumettre d’abord a la volonte d’une seule personne enmatiere des affaires publique, d’ou dependoient sa surete et sonavantage particulier? Il y a beaucoup d’apparence au contraire,que l’on suivit alors cette maxime, comme la plus equitable, quece a quoi tous les Membres de la Societe ont interet, doit etre

administre par tous en commun’’.150

It is reasonable to think that this passage was already wellknown to Rousseau, when, in the Discourse on Inequality, he assertsby implication that democracy is the first form of society, comingbefore the creation of the magistrates: ‘‘La Societe ne consistad’abord qu’en quelques conventions generales que tous lesparticuliers s’engagoient a observer, et dont la Communaute serendoit garante envers chacun d’eux’’, and adding, in order toexplain his assertion: ‘‘Il ne seroit pas plus raisonnable de croireque les Peuples se sont d’abord jettes entre les bras d’un Maıtreabsolu, sans condition et sans retour, et que le premier moyen depourvoir a la surete commune qu’aient imagine des hommes fierset indomptes, a ete de se precipiter dans l’esclavage’’.151

At the same time, however, after having declared thatdemocracy is the oldest form of government, Pufendorf distanceshimself from the theses of the De Cive and dismisses the claim that

aristocracy and monarchy derive from the democratic form ofgovernment. To this end he introduces the distinction, which I havealready alluded to, between embryonic democracy that derivesfrom the first pact and democracy as a true and proper form ofgovernment identified with the acceptance of the majorityprinciple.152 The presence of a double statute concept ofdemocracy is also to be found in Rousseau, intended one momentas a birth of all societies, and in another moment as a specific formof government, which cannot be thought of as the source of theothers. In the case of the second Discourse this duplicity is reflectedin the difference that exists between the parturition of the nascentsociety and the origin of the different forms of government:without stating that monarchy and aristocracy derive fromdemocracy, Rousseau however implicitly defines democracy asan extension of society brought about by the pact of association, inso far as it is instituted where men ‘‘garderent en communl’Administration supreme’’.153 In the Social Contract the historicprecedence of democracy understood as a nascent society matchesthe logical and chronological precedence of democracy, in relationto all forms of government. Indeed, to institute the government thesovereign body first acts as such by establishing with a law theform of government, then, ‘‘par une conversion subite de laSouverainete en Democratie’’, it nominates the leaders whowill bein charge of the constituted government. Thus Rousseau sub-stitutes 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 suggestan historic derivation of all the forms of government from thedemocratic one, seeing that in the chapter dedicated to aristocracywe read: ‘‘Les premieres societes se gouvernerent aristocratique-ment’’.155 Faced with this apparent incongruity, which appears tomark a radical break even as regards the treatment of the secondDiscourse, to me it seems possible to question if even this timeRousseau is not in reality using the double notion of democracyfound in Pufendorf and, with necessary modifications, applying itto the distinction between sovereignty and government.

Furthermore, the author of the Droit de la nature et des gens hadcentred 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 thediscussion of public affairs; secondly, the introduction of theprinciple of majority; thirdly, on the basis of a distinction betweenordinary and extraordinary affairs, the institution of magistrates—commissioners—established by the people to deal with ordinaryaffairs in their name. And, still in theDroit de la nature et des genswefind the definition of democracy as the identity of governed andgovernors, because in it ‘‘ceux qui commandent, et ceux quiobeıssent, sont physiquement les memes personnes, et ne differentque par une Relation morale’’.156 Finally, when he discusses thedistinction between absolute power and limited power, Pufendorfmakes it clear that this distinction does not apply to democracies,because, ‘‘comme l’Assemblee Souveraine est composee de tous lesCitoiens, et qu’ainsi personnehorsde la n’a acquis aucundroit par lesdeliberationsqui yont ete prises, rienn’empecheque lePeuplene lesrevoque ou ne les changes toutes les fois qu’il le jugera a propos’’.157

In keeping with these observations, Rousseau goes on todifferentiate between the obligation that emerges for theindividual from public deliberation and the absolute autonomyof the sovereign body with regard to its own deliberations:

149 OC, III, 374.150 DNG, VII, V, §IV.151 OC, III, 180.

152 DNG, VII, V, §VI, VIII.153 OC, III, 186.154 Social Contract, III, XVII, OC, III, 433–4.155 OC, III, 406.156 DNG, VII, VII, §I.157 DNG, VII, VI, §VIII.


it is therefore contrary to the nature of the body politic for theSovereign to impose on itself a lawwhich it cannot break. Sincethe Sovereign can consider itself only in terms of one and thesame relation, it is then in the same situation as a privateindividual contracting with himself: which shows that there isnot, nor can there be, any kind of fundamental law that isobligatory for the body of the people, not even the socialcontract.158

Faced with these close comparisons one could well reflect againon the occasionally unclear relationship between the terms andconceptsof republicanddemocracythat is foundinRousseau’swork.And in doing this, one couldwonder if one should take seriously theHuguenot Elie Luzac’s interpretation of Rousseau’s political theoryand turn this upside down in an attempt to see the theory as simplyextending to all forms of state those characteristics that Pufendorfhad attributed only to the democratic government.159

158 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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Rousseau, Pufendorf and the eighteenth-century natural law tradition, «History of European Ideas»,...

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