Leibniz defends teleology or purposive activity against the overly mechanical worldview of Thomas Hobbes, and develops an idea of spontaneity as self-originating action irreducible to mere mechanistic reaction. He links free activity with justice as the enabling conditions for the exercise of freedom, and with the progressive deployment of individual and collective powers. He thus sets the agenda for subsequent idealism, which reconfigures the idea of spontaneity and reflects on the harmonisation of diverse individual efforts as a problem of ongoing juridical reform

Christian Wolff develops a theory of Enlightened absolutism and a paternalistic interventionist state on broadly Leibnizian promises, assigning to the state the role of promoting happiness amongst its subjects as material, intellectual, and spiritual thriving. He posits a state of nature characterised not by conflict but by stagnation. The duty of self-perfection impels individuals to leave the state of nature and to surrender their natural rights, and the state assumes the duty of co-ordination and steering of individual efforts, consistently with cameralist political economy. Herder reads Leibnizian monads as collective or national subjects, each contributing to the progressive realisation of species-capacities, and in principle harmoniously integrated with all others. He gives rise to expressive Romanticism, where self and world correspond, in contrast to ironic Romanticism, where such accord is in principle impossible, and to idealism, where the accord is a practical task.

How did Kant incorporate elements of natural right into his philosophical system after radically transforming the basis for philosophical claims in the Critique of Pure Reason, the Groundwork, and other related texts? I show how Kant praises certain ideas by natural law theorists while rejecting their foundations and many of their applications. Two particular areas reflect this process: Kant’s rejection of slavery and his developing work on war and international institutions for peace. Feyerabend must be understood as a stage in the development of Kant’s overarching unitary theory of right that fuses domestic and international right.

The state of nature in social contract theories tells us two stories, one about who the main political actors are, and another one about the supra-juridical normativity and principles those actors use to judge and act politically once they are in the civil state. In my chapter I focus on the latter matter by contrasting Kant’s approach to the state of nature and its role in his social contract theory as given in the Feyerabend lectures with the conceptions of the state of nature in Hobbes, Locke, Achenwall, and Rousseau. Following the thesis that pre-juridical normativity functions as supra-juridical normativity once in the state, my main question is: how is "natural", in the sense of "pre-political", normativity generated? With this I am referring not only to the source of normativity, but mainly to how pretensions of normativity arise when people interact in the state of nature, and if these are or are not regulated by a moral-legal order independent from that interaction.

This chapter critically examines the treatment of concepts of legal personality and representation provided by the great (if lamentably now mostly forgotten) German realist phenomenologist Adolf Reinach. In The A Priori Foundations of the Civil Law (1913), Reinach offers what is meant to be a phenomenological elucidation of the a priori nature (essential formal characteristics) of a wide variety of foundational legal concepts, the latter understood as denoting distinctive modalities of speech act. The primary interest of the chapter lies in the analysis that Reinach provides of concepts of personality and representation. However, one cannot understand what is distinctive in – and distinctively compelling or puzzling about – Reinach’s analysis of these concepts without appreciating what is distinctive about his general methodology of conceptual analysis (i.e., his phenomenological, speech act theoretical understanding of social behavior denoted by legal concepts). Thus, in addition to examining Reinach’s views on persons, legal personhood, and legal representation, the chapter provides a critical introduction to Reinachian conceptual analysis and explains its enduring interest for contemporary private law theory.

Hume’s and Bentham’s criticisms of natural law theory are direct and even mocking. By contrast, Kant’s approach in the Feyerabend lectures is far more restrained. Having adopted for his course an author explicitly committed to natural law premises, Kant largely avoids open conflict with those premises, choosing instead to develop his claims about right without making any direct critique (or defense) of the appeal to natural law. What accounts for this difference? After briefly reviewing the history of natural law theory in the modern period, I turn to a close reading of Kant’s brief but pointed criticisms of Achenwall in the opening sections of the Feyerabend lectures. I argue that Kant understands a theory of natural law not as opposed to but as irrelevant to a theory of right. Once we appreciate this claim, we can better understand Kant’s equally important contribution to the decline of natural law theory in the tradition of liberal political theory.

The textbook Immanuel Kant assigned for his course on Naturrecht was Gottfried Achenwall’s Natural Law. In the Feyerabend transcript of his course (1784), Kant not only explains Achenwall’s text but also criticizes him and expounds his own alternative theory. Since it is not always obvious from the lecture notes whether Kant is explaining Achenwall, criticizing him, or presenting his own theory, one must know the basics about Achenwall’s positions when reading Kant’s Feyerabend lectures. In this essay, we introduce Achenwall and his handbook to readers of Kant’s Feyerabend lectures. We start with some background information and then discuss Achenwall’s position on freedom and obligation, natural law and right, and his theory of property and the state. We end by pointing out a few of the main points of disagreement between Kant and Achenwall that emerge from the Feyerabend lectures.

This chapter describes the traditional understanding of the nature of lawmaking by appellate courts in America. Often labeled as formalism, this conception of appellate court lawmaking is understood as being largely objective, highly logical, and fixed in nature. From this perspective, appellate judges were thought, while resolving specific disputes, to be also striving to develop and to refine the existing common law in a given jurisdiction so that it more and more came, over time, to accurately reflect a presumed ideal version of legal regulation. This activity was thought to be very similar in nature to the work of natural sciences when they seek to reconcile specific experimental results with current understandings and thereby move a field of science ever closer to an objectively correct account of the natural world. Accordingly, the ideal version of legal doctrine toward which formalist common law lawmaking aspired was commonly known as the natural law.

Common law in America is the product of the largely independent work of thousands of different appellate judges working in hundreds of different appellate courts operating in more than fifty different jurisdictions. In characterizing this system as having experienced a profound paradigm shift from formalism to instrumentalism during the twentieth century, one is not suggesting that every appellate judge on the bench before 1,930 was a staunch formalist and that every appellate judge sitting after 1,970 has been a diehard instrumentalist.

Similarly, the legal realist movement need not have definitively established the philosophical impossibility of formalism in order to have effectively toppled it as the conventional understanding of appellate lawmaking, and to have it eventually replaced with instrumentalism. The most potent and persuasive thrust of the legal realist critique was demonstrating that formalism was advancing a false narrative of appellate court decision-making and thereby obscuring the real factors that were driving appellate court judgments.

Despite the current consensus regarding these matters, a practical and tangible transition from formalism to instrumentalism has been long delayed and is, in many ways, not yet even on the horizon. There are a number of institutional reasons for this continuing phenomenon.

The sixteenth and early seventeenth centuries marked a deep crisis of the international political and legal order of Europe, caused by the Reformation, the emergence of some strong composite monarchies and the discovery of the New World. The chapter maps how the law of nations began to emerge as a new paradigm for the governance of Europe under whose wings rulers, diplomats and scholars attempted to advance claims to an exclusive jurisdiction over international relations by sovereign princes and republics. As such, the ‘law of nations’ functioned as a lever, an argument for power in a period of great clashes between centralising governments, opposing confessions, and regional and local elites, rather than representing a reality. The ultimate success by governments in several important states at the end of the Renaissance was facilitated to a great extent by the patrimonial and transactional nature of the states that allowed to include old, autonomous powers in the machinery of state.

The sixth volume in The Cambridge History of International Law covers the developments of inter- and transnational laws in early modern Europe (1492–1660). The preface explains how recent revisionism of traditional state- and Eurocentric views on the history of international law impacts the study of this subject and how this is reflected in the volume.

By the middle of the seventeenth century, a category of sovereign princes and polities had succeeded in monopolising jurisdiction over external relations and the internal machinery of government that allows to speak of sovereign state. The Old Regime saw the further emergence, in governmental and diplomatic practice as well as in learned writings of the paradigm of the law of nations as the preserve of sovereigns. As legal practice and literature, it also expanded in scope and mass to new regulatory fields such as the law of the sea, maritime warfare, neutrality or dispute settlement. The great treatises on the law of nations of the middle of the eighteenth century fleshed out the dualist system of law of nature and of nations that formed one of the intellectual backbones to Grotius’ work into an elaborate framework of the governance of international relations inside Christian Europe and for its imperial expansion outside.

Chapter 2 introduces the normative theory on which the book relies. Principles of natural law are guides for practical human action. The principles are “natural” because they are knowable through human reason and valid guides to action whether they have been accepted in any community’s laws. They are “law” in that they supply reasons or justifications for action. Natural law theory focuses human action on survival and on flourishing understood rationally. Natural law justifies reasoning with interests, understood as distinct components of a person’s well-being. Natural law also justifies reasoning with rights, understood as entitlements to act and be free from interference backed by claims against others. Natural rights focus social and political life on desirable, low, and uncontroversial goals like survival and freedom. Natural rights also help specialize – around distinct fields of human activity organized around people’s bodies, their capacities to make livings, their capacities to associate, and their capacities to use property.

This book introduces a normative theory of property. Property laws and social norms are justified by whether and how well they secure natural rights. The natural rights are justified by run-of-the-mill principles of natural law, which evaluate human action by whether it helps people survive or flourish rationally. The book studies how natural rights legitimate property law in general and in specific doctrines. It also studies the main topics in property law and policy – ownership, public commons, the appropriate design of property rights, rights less sweeping than rights of ownership, property torts, regulatory takings, and eminent domain. The book studies in particular the phenomenon of practical reasoning, the sphere of moral reasoning that converts fundamental moral goals into specific laws and policies to enforce in practice. A theory of natural rights contributes importantly to normative theory beyond the theories most respected today – egalitarian or progressive theories, law and economics, and approaches the book calls pragmatic.

The pontificate of Leo XIII (r. 1878–1903) was decisive in shaping the Catholic response to modernity. His primary aim was to guide the Church in coming to terms with the modern world by making a clear distinction between unchangeable truths and other teachings that could be legitimately adapted to fit the scientific, democratic, and industrial world. The centerpiece of Leo’s approach was a Thomistic revival that included several elements: (1) Thomas’ view of the universe as an ordered hierarchy of being, governed by law; (2) Thomas’ view of natural law combined with Suarez’s “transfer theory of power” that permits a variety of legitimate regimes; (3) Thomas’ teaching on private property in service to the common good combined with Locke’s natural rights to property; and (4) a notion of the rights of workers as persons that points toward twentieth-century Christian personalism. I conclude by surveying the scholarly debates about Leo’s contribution to modern Thomism and Catholic social teaching.