The Divine Feudal Law: Or, Covenants with Mankind, Represented. Samuel Pufendorf

      The present work is a translation of Samuel Pufendorf’s Jus feciale divinum sive de consensu et dissensu protestantium,¹ a treatise on the reunification of Protestants in Europe. The fact that Pufendorf considered himself a layman in theology helps to explain why the work was first published posthumously in 1695. By then Pufendorf was already renowned in Europe as one of the founding fathers of the modern theory of natural law. His main works in that field are The Law of Nature and Nations (1672) and its abridgment, The Whole Duty of Man According to Natural Law (1673). In addition, Pufendorf published important political writings as well as a number of historical works that he wrote as court historiographer in the service of King Charles XI of Sweden and later of Frederick William I and Frederick III of Brandenburg-Prussia. From his student days at the University of Leipzig, questions of religion and theology continued to interest Pufendorf. Despite his efforts to separate natural law from moral theology, which put him in opposition to Lutheran orthodoxy, he remained faithful to the Lutheran creed up to the end of his life. This is clearest in his late writings that deal with problems of religion and toleration. The first of these appeared in 1687 under the title De habitu religionis christianae ad vitam civilem (literally, “On the Relation of Christian Religion to Civil Life”).² This treatise was composed in reaction to the revocation of the Edict of Nantes in 1685. With this measure the French king, Louis XIV, renounced the laws that had granted toleration to the Huguenots, or Calvinists, in France. On the basis of his theory of natural law, Pufendorf denounces the revocation as an illegitimate and tyrannical act and advocates toleration.³ The Divine Feudal Law can be seen as a complement to the treatise on toleration. In the former work, Pufendorf clarifies that toleration is just one means of dealing with religious dissent. It should be applied only when the reuniting of religions or denominations proves impossible. Pufendorf attempts to demonstrate in The Divine Feudal Law that union of Lutherans and Calvinists is possible on the basis of a theological system containing the fundamental articles necessary for salvation. In contrast, reconciliation between Protestants and Catholics is declared to be impossible.

      II

      In the introductory sections of The Divine Feudal Law, Pufendorf approaches the problem of religious dissent from a general perspective. He first insists that differences in religion should never be settled in such a way that concern for truth is laid aside. For that reason it is neither desirable that all religious parties join into one body nor that they should be held in the same esteem. The aim is not to eliminate disagreements in religion but to take away the evils that arise from those disagreements. Pufendorf proposes two methods that can be used for this purpose: toleration and reconciliation (p. 15). Toleration is held to be twofold, either “political” or “ecclesiastical” (p. 16). The Divine Feudal Law is concerned mainly with the latter, though it contains important conceptual clarifications of the former, dispelling some of its ambiguities. Concerning political toleration, Pufendorf argues, on one hand, that respect for religious freedom is one of the duties of the sovereign; on the other hand, he expounds the opinion that, depending on time and circumstances, sovereigns may either banish dissenters or tolerate subjects who do not adhere to the established religion. For this reason, it has been questioned whether Pufendorf in fact developed a principled defense of toleration.

      The opening sections of The Divine Feudal Law are especially pertinent with regard to that question. In section 4 Pufendorf distinguishes two ways of enjoying liberty of religion: subjects have their liberty “either in their own Right, or by the Concession and Favour of those who have Possession of the Government” (p. 16). The former applies wherever liberty of religion is granted by contract. Pufendorf points to the examples of the Lutheran, Calvinist, and Catholic communities in the German Empire, whose rights were guaranteed by the Peace of Westphalia. He also points out that when in any state a prince departs from the publicly received religion, both he and the people enjoy liberty of religion in their own right. The Huguenots in France, whose liberty of conscience had been granted by the Edict of Nantes, provide another example. Commenting on these cases, Pufendorf states, “Those who in this manner enjoy the Liberty of their Religion, cannot properly be said to be tolerated” (p. 17 f.).

      Toleration in the proper sense of the term applies only to those communities that have their liberty granted “by the Concession of the Government” (p. 18), as, for example, when foreigners of a different religion are admitted into a state or when a minority of people departs from an ancient religion. In more general terms, Pufendorf explains that toleration should be taken not as a good in itself but rather as a temporary means of overcoming religious diversity. It is “of the Nature of a Truce in War, which suspends the Effects of it, and the actual Hostilities, while the State and Cause of the War do remain” (p. 15). While controversies about the articles of faith persist and continue, they are no longer accompanied by hatred and persecution. Where toleration applies, religious parties “live together as if there were no Dissention among them” (p. 15); that is, they do not hinder each other “from the publick Profession of their different Opinion” (p. 15). Depending on time and circumstances, toleration may be either universal or limited (p. 18). It is universal when all religious parties have equal liberty to the public exercise of their religions and enjoy all the rights and privileges of subjects of the state. It is limited when the exercise of religion is restricted to private realms or when religious minorities are excluded

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