The Origin, Definition, Assimilation and Endurance of Instinctu Naturae in Natural Law Parlance-From Isidore and Ulpian To Hobbes and Locke

The origin, denition, assimilation and endurance of instinctu naturae in Natural
Law ParlanceFrom Isidore and Ulpian to Hobbes and Locke
Robert A. Greene
Department of English, University of Massachusetts/Boston, 100 Morrissey Blvd., Boston 02125-3393, United States
For my part, I distinguish two kinds of instinct. One is in us qua
men, and is purely intellectual; it is the light of nature or intuitus
mentis to which alone I think one should trust. The other
belongs to us qua animals, and is a certain impulse of nature
towards the preservation of our bodies. . .and bodily pleasures.
Descartes to Mersenne in 1639 commenting on Edward
Herberts De Veritate 1624
B. What is natural law?
A. The instinct which makes us feel justice.
Voltaire, Philosophical Dictionary, 1764
In dening the natural law in his Etymologies of 636 Isidore of
Seville begins by noting that it is common to all nations; it is held
everywhere by instinct of nature not because of any enactment.
Treated as oracular and subjected to analysis and interpretation by
civilians, canonists and philosophers in the twelfth and thirteen
centuries, that assertion and its key phrase, instinctu naturae, were
understood to mean that human awareness of the natural law
arose not from that animal instinct that man shared with beasts,
but from the instinctu naturae that was specic to human nature,
that is, the instinct of reason. That universal human instinct was to
be distinguished, as Isidore had said, from the discursive activity of
reason in enacting laws. It acted in a pre-deliberative way
antecedently to rational calculation to recognize immediately and
intuitively the self-evident practical principles of the moral order,
once their terms were understood. It was, accordingly, identied
with Augustines ratio superior, and was deemed responsible for
recognizing the claims of equity, which superseded enacted laws.
Inevitably, it was also drawn into equivalence with Jeromes term
synderesis, newly revived and alternatively dened as the spark of
conscience, which was the remnant of mans original moral
integrity, and the source of the practical principles of morality.
The use of the expression instinctu naturae in this manner had a
very long life in discussions of the natural law after its equivalent,
synderesis, had faded into obsolescence in both Latin and English.
1
It was repeated, afrmed and redened at the beginning of the
inuential glossa ordinaria to the Decretum in 1215, elaborated 30
years later by Albert the Great, taken for granted by Bishop
Reginald Pecock when he used it rst in this sense in English in
1454, and endorsed and given currency in legal education by
Christopher St German in England in 1528. The expression became
colloquial in English in the seventeenth century. It also survived
Hobbes proscription, and Lockes restricted denition of, the
History of European Ideas 36 (2010) 361374
A R T I C L E I N F O
Article history:
Available online 9 August 2010
Keywords:
Instinctu naturae
Decretum
Albert the Great
Reginald Pecock
Christopher St German
Hobbes
Locke
A B S T R A C T
This essay identies the source, and traces both the subsequent use and the changing denition, of the
expression instinctu naturae in the early history of natural law discourse. It also examines the later
assimilation and endurance of the expression in English, as well as the efforts of Hobbes to proscribe the
use, and Locke to limit the meaning, of the term instinct.
Initially serving simply to predicate a divine stimulus as the source of human knowledge of the
natural law-natura, id est Deus-instinctu naturae was later understood to refer to an instinct of human
nature, that is, an instinct of the reason that dened human nature, an intuitive instinct that recognized
immediately, in a pre-deliberative, non-discursive way, the self-evident practical principles of the moral
order, once their terms were understood.
2010 Published by Elsevier Ltd.
This essay complements and extends the scope of an earlier article on the same
topic in the Journal of the History of Ideas, 58 (1997) 17398: Instinct of Nature:
Natural Law, Synderesis and the Moral Sense.
E-mail address: Robert.Greene@umb.edu.
1
As part of his excursive note A, appended to T. Reid, The Works of Thomas Reid
(Edinburgh, 1846), II, 742803, on the philosophy of common sense and its
nomenclature, Sir William Hamilton reviews the use of instinct and instinctive as
philosophical terms to designate the higher faculties of the mind, intellectual and
moral from the sixteenth to the nineteenth century. He cites thirty-two authors
who used the terms in this way, none of whom wrote before 1500.
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medieval word instinctus/instinct. Later treatises on the natural
law, such as the Swiss jurist J.J. Burlamaquis Principles of Natural
and Politic Law, 1747, endorsed and propagated it.
Ulpian and Isidore
The compilers of Justinians Digest (533) gave considerable
prominence to Ulpians (d 228) provocative denition of the
natural law by including it in the rst entry in their summary of
Roman law.
2
That prominence almost certainly led Isidore of
Seville, writing a century later, to use Ulpians denition as the
basis of his own.
3
His version asserted that the natural law
governed only human beings, or nations, contrary both to Ulpians
assertion that it was what nature has taught all animals, and to his
insistence that it was common to all animals. Isidore carefully
changed the language of one of Ulpians three examples to make
the law apply only to mankind, as he had said, substituting viri
(men) for maris (male) in the union of male and female. He
repeated verbatim, however, all three of Ulpians examples of the
natural law the union of male and female, procreation, and the
rearing of offspring while adding some of his own. By repeating
Ulpians examples and juxtaposing them with his own newly
introduced expression instinctu naturae, the fulcrum of his
denition, Isidore unintentionally provided his readers with a
misleading context for that expression which invited them to
misinterpret it. Instinctu naturae was then liable to be mistakenly
understood to refer to physical or sensual drives. The result was
that Isidores denition appeared to be self-contradictory.
In classical Latin instinctus is used primarily to mean impulses
experienced by human beings, most frequently divine or demonic
in origin, not to designate the predictable, apparently non-rational
self and species preservative behavior of animals.
4
An example of
its typical use is to be found in the inscription on the Arch of
Constantine (313), attributing the emperors military victory, in
part, to an instinctu divinitatis, an expression probably rooted in
Ciceros De divinitatis.
5
Subsequent changes in the primary connotation rst of
instinctus and eventually of the English word instinct, as well as
Isidores retention of Ulpians examples, have contributed to the
conation and confusion of Ulpians and Isidores denitions by
modern historians of the natural lawsince the Carlyles (1903).
6
To
cite only one example, Crowe says that Isidores retention of the
instinct of nature his gesture towards Ulpian? has its own
difculties,
7
thus mistakenly attributing the expression instinct of
nature to Ulpian,
8
and mistakenly assuming that instinctus, as it is
used by Isidore, connotes animal behavior.
Isidores use of the chameleon-like natura here can be as
misleading for a modern reader as his use of instinctus. In
describing the instinctu naturae as operative everywhere, and in
distinguishing it from the process of institution or enactment that
is the mark of human laws, Isidore is referring to a generic or
constitutive impulse in human beings, a force of divine origin. That
this was his intent is conrmed by his introductory comments on
the general topic of lawa fewentries earlier in his Etymologies: All
laws are either divine or human. Divine laws are based on nature,
human law on customs. For this reason human laws may disagree,
because different laws suit different peoples.
9
The laws govern-
ing the operations of created nature in all its manifestations were,
for Isidore, divine, unlike human laws. As he remarks elsewhere in
the Etymologies (XI, iii, 243): . . .the nature of everything is the will
of the Creator. Whence even the pagans address God sometimes
as Nature, sometimes as God. Later medieval commentators
understood this usage of natura and frequently appended id est
deus to make the meaning clear: natura understood as natura
naturans.
10
Accordingly, Isidores instinctu naturae designates the
divine providential and directive force stimulating human
behavior, and his choice of instinctus is doubly consistent with
its traditional semantic use and connotations, in that it refers to
an urge conned to human beings and one that is divine in
origin.
This occurrence of instinctu naturae is unique in the Etymolo-
gies.
11
Isidore does use instinctus twice more in that work, once in
reference to the behavior of the partridge, which steals the eggs of
other birds and hatches them. This theft, however, fails of its
purpose when the hatchlings hear the call of their true parent and
by a certain natural instinct (naturali quodam instinctu) return to
their natural mother.
12
Although this locution may seem to be
logically equivalent in meaning to instinctu naturae a subtle shift
has occurred and instinctus has been reied, made substantive and
given the status of an agent, contrary to its auxilary force in
instinctu naturae. It is also clear that by 636 instinctus is being used
to describe animal behavior.
In selecting the expression instinctu naturae Isidore may have
been inuenced by Ciceros well-known denition of the natural
law as that which is not born of opinion, but implanted in us by a
kind of innate force (quaedam innata vis).
13
As Cicero opposed his
innata vis to human opinion, Isidore opposed his instinctu naturae
to human ordinance or enactment; it is clear that both forces,
imprecisely dened as they may be, are contrasted with discursive
reason and its products. Also, although it is anachronistic to use the
2
The Digest of Justinian, ed. T. Mommsen, P. Krueger, tr. A. Watson (Philadelphia,
1985), I,1,1.3,4: Jus naturale is that which nature has taught to all animals; for it is
not a law specic to mankind but is common to all animalsland animals, sea
animals, and the birds as well. Out of this comes the union of man and woman [male
and female] which we call marriage, and the procreation of children, and their
rearing. So we can see that the other animals, wild beasts included, are rightly
understood to be acquainted with this law. . . .this [law] is common to all animals.
John R. Kroger provides a recent survey of the possible sources of Ulpians unusual
denition in The Philosophical Foundations of Roman Law: Aristotle, the Stoics, and
Roman Theories of Natural Law, Wisconsin Law Review, 2004 (2004), 90544.
3
Isidore of Seville, Etymologiarum sive Originum, ed. W. M. Lindsay (Oxford,
1911), V, iv: Jus naturale is the law common to all nations; it is held everywhere by
instinct of nature, not because of any enactment. Examples include the union of
men and women, the generation and education of children, the common possession
of all things, and liberty as well for all in the acquiring of those things taken fromair
and land and sea, also the restitution of things deposited or money entrusted, and
the right to repel force by force.
4
The absence of the word instinctus from the extensive discussion of animal
behavior in the Natural History (77CE) of Pliny the Elder conrms this point. See P.
Rosumek, D. Najock, Concordantia in Plinii Secundi Naturalem historiam(Hildesheim,
1996), s.v. See also S.G. Pembroke, Oikeiosis, in: Problems in Stoicism, ed. A.A. Long
(London, 1971), 117: . . .in antiquity instinctus was applied not to recurrent
behavior but to the exact opposite of this, exceptional manifestations like sudden
inspiration. See Greene, 1997,176.
5
L.H. Jones, Ciceros instinctu divino and Constantines instinctu divinitatis: The
evidence of the Arch of Constantine for the Senatorial View of the Vision of
Constantine, Journal of Early Christian Studies, 6, 4 (1998), 64771.
6
R.W. and A.J. Carlyle, A History of Medieval Political Theory in the West,
(Edinburgh, 19031936), I, 108. See Greene, 1997, 175, n. 5.
7
M.B. Crowe, The Changing Prole of the Natural Law (The Hague, 1977), 70.
8
Ulpian never uses the expression instinctu naturae; he uses the word instinctus
only once, not in reference to animals. See T. Honore, J. Menner, Concordance to
Justinians Digest (Oxford, 1998), s. v.
9
The Etymologies of Isidore of Seville, tr. S.A. Barney (Cambridge, 2006), V, ii, 117.
For a recent study of the theological, legal and literary ideas of nature in the
medieval period see H. White, Nature, Sex and Goodness in a Medieval Literary
Tradition (Oxford, 2000).
10
B. Tierney, Natura id est Deus: A Case of Juristic Pantheism?, Journal of the
History of Ideas, 24 (1963), 30722.
11
A.-I.M. Garcia, Concordantia in Isidori Hispaliensis Etymologias (Hildesheim,
1995), s.v.
12
Barney, Etymologies, XII, vii, 63.
13
Cicero, De inventione, tr. H.M. Hubbell (Cambridge, Mass., 1949), II, xxii, 65: And
the lawof nature is something which is implanted in us not by opinion, but by a kind
of innate instinct [innata vis]. See also Cicero, De re publica, de legibus, tr. C.W. Keyes
(Cambridge, MA, 1970), I, vi, 18 (31617): Law is the highest reason, implanted in
Nature, which commands what ought to be done and forbids the opposite, and A.R.
Dyck, A Commentary on Cicero, De Legibus (Ann Arbor, 2004), 10814, 265.
R.A. Greene / History of European Ideas 36 (2010) 361374 362
word instinct to identify Ulpians views, and although it is clear
that Isidores instinctu naturae does not refer to animal behavior, it
is more important to note that neither of their denitions of the
natural law speaks directly of mans reason. Quite the contrary,
although Isidore does add examples of the law that do involve
rational behavior.
The three illustrative examples cited by Ulpian and repeated by
Isidore are human/animal actions usually attributed to non-
rational automatic self and species preservative drives. It is no
surprise, considering that Isidore was probably the most read
author of the early Middle Ages,
14
that these three examples, and
the pivotal expressions quod natura omnia animalia docuit and
instinctu naturae that Ulpian and Isidore attached to them, are
woven into the commentaries of civilian and canon lawyers in the
twelfth century, sometimes in arbitrary and perplexing ways. The
methodology of these scholastic writers presupposed an inheri-
tance of texts which were all authoritative but were discordant and
sometimes contradictory.
15
The authority of these denitions and
examples earned theman imprimatur and thus an inuential place
in a medieval debate that was moving the denition of the natural
law towards mans rational participation in the eternal law. Their
collective effect was to preserve the idea that forces other than
discursive reason played a part in discovering the natural lawthat
humankind shared with animals the experience of impulsive and
benecial appetitive urges to self and species preservative
behavior, that these were, in some indenable way, part of the
natural law, and that human recognition and acknowledgement of
the natural law was not the result of ratiocination alone, but of a
putatively divine instinct.
Boethius and Hilary
A century before Isidore introduced the term instinctu naturae
into the denition of the natural law an even more widely
inuential medieval writer had used a similar term to express a
similar idea. Boethius, who was Justinians contemporary, has
frequently been called the last Roman, and his language remained
the language of Cicero. So, in those passages in the Consolation of
Philosophy where Philosophy leads Boethius to an understanding of
the inner teleological force that stimulates the self-preserving and
self-perfecting behavior of animate and inanimate beings alike she
designates it as naturalis intentio. All these same things, she says,
hasten towards the good by their natural exertion. She carefully
separates and distinguishes the voluntary motions of the rational
and intelligent soul from this intention of nature. The latter
operates when we digest food without any conscious thought or
when we draw breath in our sleep without knowing it: For not
even in living things does the love of survival proceed fromthe acts
of will of the soul, but from natural principles. And she draws the
conclusion: so this love of self proceeds not from a motion of the
soul but from an exertion of nature [ex naturali intentione]; for
providence has given her creatures this most important cause of
enduring, that by their nature they desire to endure so far as they
can.
16
Boethius thus attributes self-preservative impulses to a
providential desire to endure implanted in all things which
operates in a realm extrinsic to reason, will and consciousness. For
Boethius as for Ulpian the term instinctu naturae was as yet
unavailable to express such an idea because its range of reference
was conned to mankind. Interestingly enough, and appropriately
illustrative of the argument of this essay, when by 1593 it had
become available in the vernacular, it was used. In that year Queen
Elizabeth became the rst translator of the Consolation of
Philosophy into English to choose to express Boethiuss ex naturali
intentione as by natural instinct.
17
Boethius did, however, use instinctus quodam naturali in an
inuential passage in his De institutione musica. There, in the
unique occurrence of instinctus in the work,
18
in a context that well
illustrates the traditional use of the word in classical Latin, he is
engaged in summarizing his argument that it is better and nobler
to use reason to study and understand music than to compose and
perform it, which are servile occupations. He concludes, with
respect to composition, that the second class of those practicing
music is that of the poets, a class led to song not so much by
thought and reason as by a certain natural instinct.
19
This passage
has been cited as an important, if paradoxical, source of the idea of
musical genius. The echoes of its reference to natural instinct in
numerous Renaissance treatises on music provide an illuminating
parallel to the semantic history summarized in this essay.
20
Ironically, Boethiuss intention was to deprecate the rationally
inexplicable and mysterious (quodam) force that he dismissively
conceded was responsible for the composition of music. By the
time of the Renaissance instinctu naturae was still an integral
component of discussions about musical composition, but
Humanismand the inuences described in this essay had reversed
its Boethian connotation so that it served to express admiration for
the indenable artistic inspiration of individual genius that
transcended reason.
There is also another early and inuential use of the expression
instinctu naturae where natura clearly refers to human nature only
and where the natural lawis not at issue. Hilary of Poitiers wrote as
a theologian and moralist, as is evident in his commentary on the
Psalms (ca 350), Psalm i, where he condemned as reprehensible
and sinful human conduct that he attributed to naturae nostrae
instinctus. He deplored the sins of the ungodly, the greedy, the
drunken, the brawlers, the wanton, the proud hypocrites, liars,
plunderers, and asserts that No doubt we are urged towards these
sins by the promptings of our natural instinct.
21
It is no surprise to
nd St. Augustine applauding this judgment and giving it greater
currency by quoting and discussing it at some length in his treatise
Contra Julianum.
22
The dominant semantic template for instinctus,
when used to designate a force experienced by mankind, is,
accordingly, a divine or malign, frequently demonic, stimulus, here
illustrated by Isidores use and Hilarys.
14
P.D. King, The Barbarian Kingdoms, in ed. J.H. Burns, The Cambridge History of
Medieval Political Thought c 350c 1480 (Cambridge, 1988), 141.
15
H.M. Hop, Scholasticism in Quentin Skinners Foundations, in: Rethinking the
Foundations of Modern Political Thought, ed. A. Brett, J. Tully, H. Hamilton-Bleakley
(Cambridge, 2006), 116. Hop also comments on the popularity with scholastic
writers of short quotes, and free standing and snappy one-line propositions
summarizing authoritiesthese excerpts from the denitions of Ulpian and Isidore
illustrate his point.
16
Boethius, The Theological Tractates, The Consolation of Philosophy, tr. H.F. Stewart,
E.K. Rand, S.J. Tester (Cambridge, MA, 1962), III, xii, 50 (301); III, xi, 96100 (295);
for Boethiuss use of intentio see Joachim Gruber, Kommentar zu Boethius De
Consolatione Philosophiae (Berlin, 1978), 155. White, Nature, 70-5 and 101 translates
Boethius intentio as inclination and refers to it as a natural instinct, White.
17
The Consolation of Queen Elizabeth I, ed. N.H. Kaylor, Jr., P.E. Philips, Intro. Quan
Manh Ha (Tempe, Arizona, 2009), 100: When rightly we beleeve that God all Rules
by goodnes order/&that all thinges as I have taught you by naturall instinct hyes to/
the hiest good. See also 82, 97, 99. John Bracegirdle also used the expression
natural instinct in his translation of The Consolation of Philosophy (ca 1602), which
remained unpublished until 1999. See John Bracegirdles Psychopharmacon, ed. N.H.
Kaylor, Jr., J.E. Streed (Tempe, 1999), 70, 93, 95.
18
M. Berhard, Wortkonkordanz zu Anicius Manlius Severinus Boethius, De
institutione musica (Munich, 1979), s.v.
19
Boethius, Fundamentals of Music, ed. C.V. Palisca, tr. C.M. Bower (New Haven,
1989), 51.
20
E.E. Lowinsky, Musical Genius in the Dictionary of the History of Ideas, ed. P.P.
Wiener (NewYork, 1973), II, 31226. G. Spartaro, for example, explains in 1529 that
the good composer is born not made and works through natural instinct and a
certain manner of grace which can scarcely be taught (316).
21
Hilary of Poitiers, Tractatus Super Psalmos, ed. J. Doignon, Corpus Christianorum,
(Turnhout, 1997), LXI, 24. Translated in The Nicene and Post Nicene Fathers, ed. P.
Schiff, H. Wace (Grand Rapids, 19781979), 9, 238.
22
Saint Augustine, Against Julian, tr. M.A. Schumacher (New York, 1957), 8990.
Gratian and the glossa ordinaria
Scholastic reverence for authoritative texts ensuredthat Isidores
denition was given renewed life as well as pervasive and enduring
impact a half millennium after it was written by being quoted
verbatiminDistinctionI of Gratians Decretumof 1140, acompilation
that became the standard textbook in the eld of Western
Christian ecclesiastical law.
23
Quotations from Book V of Isidores
Etymologies, in fact, dominate the rst Distinction of this work,
beginning with its rst sentence, which repeats Isidores division of
all ordinances intodivine or human. There is evenanobvious echoof
the basic assertion of Isidores denition, that the law of nature is
held everywhere by instinct of nature, not because of any
enactment, inthat subtitle of the Decretum, one of many, apparently
favoredbyGratian: ConcerningtheLawof NatureandEnactment.
24
Gratians intent was to produce a Harmony of Discordant
Canons, as the full title of the Decretum indicated. The ambiguity
and seeming self-contradiction of Isidores denition certainly
qualied it for inclusion and explication. Accordingly, the seventh
capitulum of Distinction I of the work is entitled: What Natural
LawIs, and it consists of a exact repetition of Isidores denition.
25
Surprisingly, however, Gratian did not comment on it, preferring to
further complicate matters by rst adding another denition of his
own, that the natural lawwas what is contained in the Lawand the
Gospel, and by citing the golden rule, as expressed by Christ in
Matthew vii:12, as an illustration and encapsulation of it.
By asserting, in the rst sentence of his rst dictum, and of the
Decretum, that The human race is ruled by two things, namely,
natural law and usages, and by conrming the point more
explicitly in Distinction V: the natural law began with rational
creatures themselves,
26
Gratian clearly endorsed Isidores restric-
tion of the natural law to human beings, thus leaving no room for
Ulpians idea that it was common to all animals. In so doing, and
by quoting without qualication or comment Isidores denition,
which included Ulpians examples of animal behavior,
27
Gratian
perpetuated its puzzling internal contradictions in the Decretum
for the better part of a century, from1140 to 1215, until the advent
of the glossa ordinaria.
It was during those 75 years that canonist glosses and
commentaries on the Decretum moved increasingly to accept
and explore the implications of Gratians viewthat the natural law
began with the appearance of rational creatures. In doing so,
however, they had to address and somehow solve the enigma that
was Isidores denition, now thrice legitimized, by Ulpian, by
Isidore, and by Gratian. They wrote within a context that valued
and included the recollection of certain cultural touchstones from
both classical and biblical sources, and they incorporated the
contemporary revival of some philosophical and psychological
theories that appeared to contribute to an understanding of the
natural law. So Ciceros innata vis, and St Pauls assertion in Romans
ii: 1415 that the Gentiles do by nature the things contained in the
law. . .which shew[s] the work of the law written in their hearts, as
well as the Roman concept of aequitas naturalis, and the theory of a
ratiosuperior inheritedfromSt. Augustine,
28
werepart of thecontext
inwhichIsidores central afrmationabout the instinctunaturae was
interpreted and understood. Most important of all was St Jeromes
interpretationof theeagle inEzekiels inaugural visionas synderesis,
the spark of conscience and of mans original moral integrity that
hadsurvivedthefall. Jeromes passagewas citedbyPeter Lombardin
his inuential Sentences of 1252, where he conates Augustine with
Jerome in his misquotation of Jeromes scintilla conscientae as
superior scintilla rationis.
29
Synderesis came to be knownas the pure
part of conscience, and the source of recognition of the practical
principles of the moral order. The congruence between synderesis
and the natural law led eventually to their assimilation, as one
scholar has put it, in the late twelfth century.
30
It was in the context of this inherited and revived wisdom that
some commentators such as Simon of Bisegnano discovered a
double signicance in Isidores instinctu naturae and cut the
Gordian knot that was Isidores confused denition. Through the
simple expedient of pointing out that Isidores natura could refer to
either mans generic nature as an animal or to his specic nature as
a rational animal Simon saved the appearances by retaining
Isidores instinctu for both concepts and introducing the apparently
paradoxical idea of an instinctus naturae arising from the
distinguishing characteristic of human nature, reason, at the heart
of the natural law. The adoption and repetition of this solution by
Johannes Teutonicus in the glossa ordinaria to the Decretumof 1215
ensured its survival.
Relying on and summarizing the responses of earlier scholiasts,
Johannes begins his note on the words natural law in Isidores
denition by advancing four scholastic distinctions based on the
premise that the word natura in the expression natural law has
many meanings.
To understand this, note that the word nature is used in many
ways. Sometimes nature means a force residing in things so that
like propagates like. Second, sometimes nature means the
stimulus or instinct of nature proceeding from physical desire
in respect to appetite, procreation, and child-rearing. C. 32 q.5 c.
17; Dig. 25.4.1; Instit. 1. 2. pr. Third, nature means an instinct of
nature proceeding from reason; law proceeding from nature in
this sense is called natural equity. According to this law of
nature, all things are called common, that is, to be shared in
time of necessity. D. 47 c.8. Fourth, the law of nature means
natural precepts such as do not kill, do not commit adultery.
C. 32 q.7 c. 16; Instit. 4.1. pr. All divine law is said to be natural
law, and according to this law, too, all things are called
common, that is, to be shared.
31
Of the various meanings of natura proposed here the rst is a
perfunctory reminder of a force ensuring that like propagates like,
23
Gratian, The Treatise on Laws, tr. A. Thompson, J. Gordley, intro. Katherine
Christenson (Washington, DC, 1993), xvi, 17. Both R. Weigand, Theologische Revue,
92 (1996), 15255, and A. Winroth, The Making of Gratians Decretum (Cambridge,
2000) point out serious defects in this edition and translation. Cf. note 27 below.
24
Gratian, Treatise, 87; the view that this subtitle was favored by Gratian is the
opinion, quoted here, of the editors of the 1582 Rome edition of the Decretum.
25
Gratian, Treatise, D.I.c.7, p. 6; Winroth, 197, establishes that the text of
Distinction I on the natural law was part of the rst recension of the Decretum, the
earliest, and much briefer, version of the work.
26
Gratian, Treatise, D.V. d.a.c.1, p. 16; the gloss on the word began in this sentence
reads: as to its understanding, not as to its essence, and goes on to note that the
natural law in the sense of natural equity existed from eternity. Gratians words
here are quoted earlier in the gloss to his rst sentence in the Decretum, D.I.d.a.c.1.
27
Gratian, Treatise, D.I.c.7, p. 6; a translation error in this edition exemplies the
confusion cited above at notes 6 and 7. The translator of Gratians text at D.I.c.7
renders Isidores instinctu naturae as natural instinct, thus reifying instinctu and
clearly understanding it to refer to animal instinct. That mistranslation leads to
further confusion in the Glossary entry for natural law, and in the Introduction:
Throughout the Decretum, natural lawoften seems to be identied with divine law.
Yet in [D.I] capitulum 7 natural law is said to be based on natural instinct.
Ironically, instinctu naturae occurs twice in the gloss on this same passage (quoted
above) and is correctly translated as instinct of nature by a second translator who
was responsible for translating the glossa ordinaria. Treatise, 7, 119, xxixxii, 87.
28
See R. Mulligan, Ratio Superior and Ratio Inferior: the Historical Background, The
New Scholasticism, XXIX, (1955), 132.
29
P. Lombard, The Sentences, tr. G. Silano (Toronto, 20072008), II, 197, Chap. 3,
251, 3. A half century and a century after The Sentences appeared Nicholas of
Ockhamand Denys of Ryckel dene synderesis as an instinct of nature in the soul or
rational mind, and a natural instinct of reason. See Greene, 1997, 188 and 190.
30
A.S. Brett does not explore the history of synderesis in her detailed analysis of
rights in late scholastic thought, but see her brief reference to the assimilation of
synderesis to natural lawby early canonists in Liberty, Right and Nature (Cambridge,
1997), 8386, and Greene, 1997, 181 and 185.
31
Gratian, Treatise, D.I.c.7, gloss, p. 6.
a force which seems akin to Boethius intentione naturae or natura
naturans, the essential ground of being and support of all creation.
Both of the next two meanings preserve and endorse Isidores
introduction of the ancillary word instinctu into the denition of
the natural law, probably because in these explications of natura a
stimulus or urge is experienced by living creatures. Johannes solves
the dilemma of Isidores denition, at least to his own satisfaction,
by the simple expedient of expanding the meaning of instinctu
naturae to cover both an instinct of nature common to men and
animals, proceeding from physical desire and intent on self and
species preservation, as well as a second instinct of nature,
proceeding paradoxically from reason, hence peculiar to human
beings, and identied with the Roman aequitas naturalis. Ulpians
denition is revived and reinstated in the discussion by cross-
reference to its repetition in Justinians Institutes 1.2.pr.
Johannes review of the various ways of understanding natura
claries the meaning of the instinctus naturae he attributes to
humanity by asserting that it proceeds from reason, and by
identifying it with equity. The aequitas naturalis that Johannes
refers to was linked by Roman lawyers with the notion of lex
naturae, the command of an inner voice through which speaks the
ratio of the natura rerum immanent in things (hence it is
often. . .connected with naturalis ratio). Identied as it is with
equity, Isidores instinctu naturae is therefore a moral impulse
altruistically concerned to make justice and fairness generally
prevail by going beyond the formal sources of law . . . to reach for a
higher, enduring, normative plane.
32
Given the primary meaning of
instinctus (a stimulus froma divine or demonic source) it also seems
clear that this instinctus naturae is not the product of discursive
reason since it transcends the law. Finally, we may conclude that
Johannes lengthy note onnatura, occurring inthe rst Distinctionof
this inuential legal textbook, was a major contribution to
conrming instinctu naturae in natural law parlance.
33
Albert the Great
It was only 30 years after the glossa ordinaria was added to the
Decretum that Albertus Magnus began his treatment of the natural
law by scrutinizing and largely rejecting its subtle analysis of
Isidores denition. In dealing with De jure et lege naturali in the
fth section of his treatise De bono (12461248) he summarizes
the denitions of Johannes Teutonicus just quoted, criticizes their
lack of art and reason and simplies matters by offering a single
short humanistic statement dening the natural law: For the jus
naturae is nothing else but the law of reason or debitum, according
to which natura est ratio.
34
He ignores Ulpians idea that the
natural law is common to men and animals.
Despite his dismissal of Ulpian, however, Albert nds a place for
the language of Cicero and Isidore in his understanding of the
natural law, and for what their language strove to express: that the
natural law was rooted in a mysterious innate prompting.
Although his reiterated emphasis in discussing the natural law
is upon human rationality as the gauge and dening characteristic
of that law, he begins his consideration of the subject in both the De
bono and the Ethica by directing attention to Ciceros denition
from his De inventione. In the Ethica he declares that Ciceros
certain innate impulse (quaedam innata vis) may be understood
in a double sense, according to its application to the genus (animal)
or the species (man). For the rst he is content to continue
Johannes use of instinctu naturae to designate the drives of animals
and to quote Ulpian (conjunctio maris et foeminae, liberorum
procreatio) to provide examples of the resulting behavior, but he
emphasizes that this behavior cannot be termed just but is simply
proportionate to the genus animal.
35
But Albert also follows the lead of Johannes in freeing Isidores
instinctu naturae from the ties that had bound and restricted it to
Ulpians quod natura omnia animalia docuit. He also understands
the expression to mean instinctu (humanae) naturae, or the instinct
of the human species, and since natura est ratio it becomes
synonymous with instinctu rationis and instinctu conscientiae.
In the rst question of the De justitia he begins once again by
endorsing Ciceros denition of the natural law as a certain innate
impulse and surrounds it in his responsio with the roster of by now
traditional expressions, concepts and quotations that had become
associated with the denition of the natural law. So he explains jus
naturae, in its strictest denition, in terms of Basils naturale
judicatorum rationis, which he identies with synderesisthe
human capacity to recognize at once the truth of the primary
principles of practical morality when their terms are understood.
Predictably he brings in Romans ii:15, and quotes the Old (Tobit
iv:16) and the New Testament (Matthew vii:12) versions of the
golden rule as examples of such principles. Albert has been
credited with introducing his own qualication of this traditional
innatism by insisting on the necessity of a complementary
acquired knowledge of the terms of the moral principles of the
natural law.
36
He accepts the viewthat the practical intellect has a
connate implanted habit of scientia juris, but he argues that it was
an Aristotelian tabula rasa with respect to such necessarily
acquired knowledge.
It is in this context that Albert directs explicit and thoughtful
attention for the rst time to the connotations of Isidores term
instinctu naturae itself. An objection may be raised, he begins:
because it is said that this law is held everywhere by an
instinct of nature and not by any other enactment. [But] it does
not seem to be held by an instinct of nature. For an instinct of
nature is nothing other than [a drive] towards one thing, and
not towards its opposite Accordingly, it appears that in the
natural law there is no instinct towards the opposite. And from
this follow two inconsistencies. The rst is that whatever
natural law commands would not be difcult; and at [natural
law] would always be of necessity because it is necessary to
fulll the things that arise from an instinct of nature.
37
In his reply Albert admits that this objection would be valid if
nature here referred to a natural body moving according to its
nature. He is clearly thinking of the blind or closed instincts of the
behavior of beasts. In this case, however:
nature is posited as the nature of a human being who has been
ordained for good behavior, in as much as he is human. This is so
because [elsewhere] we proved the following: that it is proper
for a human being that he determine what is honorable and
dishonorable, praiseworthy and to be scorned in life. and that
the natural lawis froman instinct of nature of this sort, and that
it urges toward the difcult and the good, and it does not urge
32
G. Mousourakis, The Historical and Institutional Context of Roman Law(Aldershot,
2003), 33.
33
Parallel examples and analysis of the later use of instinctus in the discussion of
the natural law in the writings of Aquinas, Bonaventure, Gerson, Nicholas of
Ockham and Denys of Ryckel are to be found in Greene, 1997, 18190.
34
A. Magnus, De Bono in Opera Omnia, ed. H. Kuhle, C. Feckes, B. Geyer, W. Kubel
(Munster, 1951), 28, 270: Est enim ius naturale nihil aliud quam ius rationis sive
debitum, secundum quod natura est ratio. See the discussion of Alberts views by
Stanley B. Cunningham in: Albertus Magnus on Natural Law, Journal of the History
of Ideas, 28 (1967), 502, and in Reclaiming Moral Agency The Moral Philosophy of
Albert the Great (Washington, 2008), 20737.
35
A. Magnus, Opera Omnia, ed. S.C.A. Borgnet (Paris, 1896), 7, 367. See also his De
Animalibus, ed. H. Stadler (Munster, 1916) 1, 18 and 46 for examples of instinctus.
36
See Cunningham, Reclaiming Moral Agency, 488.
37
A. Magnus, Opera Omnia (1951), 262.
toward what falls under the necessity of the material [part], but
rather toward that which falls under the will which is formed
according to nature toward the goodbut a will which can,
nevertheless, be deected toward the opposite.
38
A second objection raises the incompatibility of stipulating a
uniform instinct of nature as the basis of the natural law with the
fact that the moral decisions and actions of men are diverse and
variable. Alberts reply relies on the customary distinction drawn
between the inerrant recognition of general moral principles by
the spark of conscience, synderesis, and the fallible process of
discursive reason that brings forward the evidence of particular
circumstances in the minor premise of the syllogismof conscience.
It shouldbe notedthat his termfor what came to be called the pure
part of conscience, synderesis, is instinctus conscientiae.
[In response to the objection] this should be said that in truth
there is the same instinct of this sort among all people. But here
it is necessary to recall that [elsewhere] it was stated that the
instinct of conscience is, to be sure, according to the universals
of law but that reason which looks to particulars plays a role
before [conscience] gives an opinion about doing or not doing
something. . . and since these factors are not the same for
everybody, it follows that there is not one and the same way of
living for everybody (see footnote 38).
So Albert repeats the terminology and thinking of the canon
lawyers in maintaining a place for the word instinctus, and for some
notion of instinctive human response, in discussions of the natural
law even if that law was not common to humans and beasts. In
addition, he uses instinctu rationis or instinctu conscientiae to
designate a concept identical with what synderesis had come to
mean: the necessary, immediate and non-deliberative experience
of basic behavioral impulses, and the subsequent recognition of
themas indicative of the universal moral imperatives of the natural
law. Complementing such recognition discursive reason adduces
its judgments of the variable particulars of conduct which are the
minor premises in syllogistic reasoning in moral matters.
Bishop Reginald Pecock (13951460)
Bishop Reginald Pecocks six surviving books have been called
an eccentric corpus of simplied theology by one historian, a
designation accurate but insufcient.
39
He appears to have used
the expression natural instinct only once in those books, and even
then he is reporting the language of others. It is also true that his
possible inuence was severely curtailed by his condemnation for
heresy in 1457, and by the consequent burning and suppression of
his numerous writings.
Nevertheless, he deserves a place in this narrative for three
reasons. First, his use of instinct in 1454 to mean the faculty of
animals to perceive something by the intellect, intuitive power, is
cited by the Middle English Dictionary as the earliest example of a
second meaning of instinct, after incitement, urging, instigation.
40
Second, Pecocks main purpose in writing his many books was
essentially pastoral, a determined effort to explain to the laity in
the vernacular that the moral lawe of kinde or moral philsophie
. . .is grounded by doom of mannis resoun,
41
and that recognition
of that fact was essential both to a moral life and to an
understanding of the Christian religion. This self-imposed mission,
which included confronting and confuting the errors of the
Lollards, dominated his thinking. The result was that his books
contain the rst extended summary in English of traditional
medieval teaching about the natural law, conceived and expressed
in an idiosyncratic way and specically aimed at a popular
audience.
Third, despite the absence of Isidores instinct of nature from
Pecocks explication of the natural law, it is clear that he accepts
the scholastic viewthat the foundation of moral knowledge and of
the lawe of kinde is written in human nature and is accordingly
natural and instinctive. His commitment to this view leads his
modern biographer to say that by the doomof resound he means
the natural law based upon the innate moral feeling of man. . . an
instinctive moral law, and an historian of late medieval English
law to conclude that for Pecock the rules of natural law are
accessible to humankind through the human reason, through
revelation, and through instinct.
42
It is in chapter viii of The Folower to the Donet, in the context of
his exposition of the teachings of scholastic psychology and
anthropology about the differing natures of the souls of human
beings and beasts, that he is led into a three and a half page account
of his disagreement with certain unidentied opponents over the
question of how beasts know. Observing the behavior of hounds,
he argues that they learn from being beaten, and modify their
subsequent behavior accordingly; they can also calculate that a
thwart course across a eld will improve their chances of catching
a hare. Such observations, and tales of the wiles of apes and foxes,
have convinced him of the probability that the higher beasts can
recognize premises, and form propositions, arguments and
syllogisms.
43
On the other hand, [S]umme philesofris, his
opponents, assert that beasts know bi natural instinct. . .or bi
symple prick and movyng of kynde without argument.
44
Pecock
then asks how his opponents can assume or allege that he
attributes greater wisdom to beasts because he asserts that they
achieve knowledge bi argument of silogisme, when these same
opponents agree with him about the content, extent and certainty
of beasts knowledge. After all, his opponents acknowledge that
God does not know any truths by argument, and yet they do not
consider God less wise than creatures whiche knowen he same
trou is bi argumentis whiche god knowi without argumentis.
38
A. Magnus, Opera Omnia (1951), 267.
39
J.I. Catto, Theology after Wyclifsm, ed. J.I. Catto, R. Evans, Late Medieval Oxford
(Oxford, 1992), II, 265. See also K. Ghosh, Bishop Reginald Pecock and the Idea of
Lollardy, ed. H. Barr, A.M. Hutchison, Text and Controversy from Wyclif to Bale
(Turnhout, 2005), 25165.
40
Middle English Dictionary, ed. H. Kurath (Ann Arbor, 19522001), s.v. The third
meaning for instinct in the Oxford English Dictionary provides a thirty eight word
denition beginning: An innate propensity in organized beings, and concluding,
formerly often regarded as a kind of intuitive knowledge; the rst instance
recorded for this meaning is Falstaffs warning in I Henry IV, II, iv, 299 (1596):
Beware Instinct, the Lion will not touch the true Prince. Instinct is a great matter.
41
R. Pecock, The Repressor of Over Much Blaming of the Clergy, ed. C. Babington
(London, 1860), I, 37.
42
V.H.H. Green, Bishop Reginald Pecock (Cambridge, 1945), 134, and N. Doe,
Fundamental Authority in Late Medieval English Law (Cambridge, 1990), 61. Neither
Green nor Doe footnote their assertions. Sir John Fortescue, Pecocks contemporary
and the major political theorist of the period, writing on the natural law in 1461
1463, indicts the illustrious Civil Laws for failing to identify the species of the
natural law peculiar to humanity; he dismisses Ulpians denition with
exasperation: What could be more obscurely or indistinctly said than this? He
never mentions Isidores denition, probably because it echoed Ulpians and
included his examples. The theory he advances, however, of Gods actions and
intentions, at the beginning of rational creation in establishing mans nature, and
his ofce, prelacy, including its superintendent obligations, requires Gods
simultaneous creation of justice and the natural law. That creative act also
required that mans prelacy be exercised in conformity with justice and the natural
law, which are, accordingly, innate in him, contemporary with him, and eternal,
and thus fully natural and instinctive, even if Fortescue avoids the term.
43
Pecock is not the rst to argue that higher beasts reason; see S.E. Lahey,
Reginald Pecock on the Authority of Reason, Scripture and Tradition, Journal of
Ecclesiastical History, 56 (2008), 241, n. 19.
44
Pecock, Folower, 36, 38. Pecock contradicts himself and denies that beasts can
reason in The Donet, ed. E.V. Hitchcock (London, 1921), 12.
While Pecocks opponents use the words natural instinct here to
designate the non-discursive (without argument) knowledge of
beasts, the nal words of the denition of this use of instinct in the
Middle English Dictionary (intuitive power) appear to generalize
and extend its range of reference to include any intellectual
perceptions, including those of human beings. The Dictionarys
substitution of animals for Pecocks reiterated beestis in its
denition points in the same direction.
One consequence of Pecocks indebtedness to Thomas Aquinas
was his adoption of the Thomistic substitute for Isidores instinctu
naturae. In his classic explanation of the three stages or tendencies
in human participation in the natural law Thomas prefers to speak
of inclinations (inclinatio) rather than instincts.
45
In Pecocks
summary of the same tripartite division in The Reule of Chrysten
Religioun he speaks once of the natural inclinacions of non-living
things, uses appetite to describe the stimulus of e bestial lawe of
kynde, and implies that human beings experience a natural
tendency to follow and fulll is doom of resoun [which] is ilk
lawe which is callid lawe of kinde [and] lawe of conscience. . .
which is propre to man as he is man. His conclusion to this passage
is a populace adapted, simplied version of Thomas passage:
er beniij lawis of kynde in is world: oon propre to man, which
is forto folewe resoun in his wil, e secunde propre to beestis,
which is to folewe in her appetite e sensual wittis. . .and e
thridde is comoun to alle plauntis and to oere ingis not living,
and at is to folewe and fullle e pricking and moving of her
unknowing kinde.
46
In addition, in the beginning of the rst chapter of this same
treatise Pecock has introduced the argument that in alle
naciouns. . . y fynde at ech tunge, ech lond, ech sect hadde an
inclynacioun and o at an actual bisynes forto fynde to hema god.
He adds that this human tendency to seek and believe in a god as a
natural inclinacioun is never had in veyn and for nouat, making
clear that such inclinations arise from natura, id est Deus.
47
Pecocks frequent invocation of the ancient inscription meta-
phor, rooted in both biblical sources and scholastic epistemology,
conrms his commitment to thinking that the basis of the natural
lawis innate or instinctive. He has no doubt about human ability to
fynde out al i lawe of kinde bi natural witt and natural liat which
ou lord god hast sett in her soulis, despite the derking of resoun
bi fal fro ynnocencie into synne.
48
The pervasive exaltation of doom of resound and lawe of
kinde at the expense of revelation in his writings
49
leads him to
identify them with e largist book of autorite at ever god made,
and to contrast that book strikingly with Scripture itself: [E]ny
point or eny governaunce of the seide lawe of kinde. . . is more
verrili writen in the book of mannis soule than in the outward book
of parchemyn or of velym [Holi Scripture].
50
He borrows this familiar inscription metaphor from Jeremiah
xxxi:33 and Hebrews viii:10: But this shall be the covenant that I
shall make with the house of Israel; after those days, saith the Lord,
I will put my lawin their inward parts, and write it in their hearts.
He incorporates it into his own manner of speaking of the natural
law, referring to the inward Scripture of the before spoken lawe of
kinde writen bi God him silf in mannis soule, whanne he made
mannis soule to his ymage and liknes. He leaves no doubt that
Goddis hool lawe to man in erthe, [including] Alle tho govern-
auncis, trouthis, and vertues. . . [are] groundid. . .in the inward book
ligging in mannis soule, which is there the writing of lawe of kinde
and of doom of resoun and moral philsophie.
51
What is it that has been written and grounded in the inward
book lying in mans soul? Pecocks answer repeats familiar
scholastic epistemology. The intellect is a knowyng wherebi we
knowen e hiaest and openest treuis of alle oire treuis, that is,
those truths called principlis or begynnyngis, which are so
evydent in it silf to resoun at resoun needi noon oir opener
knowable trou to prove it bi. These self-evident axiomatic truths
are both speculative and practical or prudential. Examples include
the practical principle of synderesis, a term that Pecock does not
use: Al good is to be louyd; Al yvel is to be ed and forsaken, and
the basic truths of speculative knowledge such as Ech hool bodi is
grettir an is his parti. The human intellects recognition of these
self-evident axioms is one example of those natural virtues
(powers) exercised by alle oire inges of kynde. . .erfore ei ben
powers aouun kyndeli into a ing folewyngli vpon e natural being
of e same ing as for her foundement or ground. Accordingly, the
foundational principles of human knowledge, speculative and
practical, are written in mans soul and are known, as Green and
Doe conclude, by the instinct of nature.
52
Christopher St German (14601540)
Christopher St German published his rst book anonymously in
1528, as he approached his seventh decade. It took the form of a
Latin Dialogue between a Doctor of divinity and a student of the
common law, and was the rst section of a work that came to be
known by its popular translated title, Doctor and Student. Internal
evidence suggests, but does not conrm, that he may also have
been the author of both versions of the English translations and
revision of this dialogue that were published between 1530 and
1532. It seems clear that he wrote both the secunde dialogue of
1530 and two sets of additional chapters in English, which
completed the work.
53
The anonymity of Doctor and Student, and its piecemeal
publication, did not affect its subsequent popularity. Its inuence,
however, was exerted primarily by the frequent republication of
the English translation of the rst dialogue, alone or together with
the second, at least nineteen times from 1530 to 1660, when the
Latin original was being published only once, in 1604. The work
continues to puzzle and intrigue scholars today, leading one to call
it such an odd book and an enigma.
54
Fortunately, the evidence provided by Doctor and Student for the
assimilation and endurance of instinctu naturae in the discussion of
the natural law can be identied without attempting to unlock all
its secrets. In addition, there is some general agreement about St
Germans intentions in writing. That agreement concludes that he
set out to establish that English law had exactly the same
foundations in divine law as the Canon Law [and that it] took due
account of conscience and equity. Consequently, it was necessary
for churchmen and ecclesiastical judges to know its contents in
order to be able to act conscientiously. The book is, then, a rst
45
T. Aquinas, Summa Theologiae (Blackfriars, 1964), III 94, 2. 1997, J. Barad,
Aquinas on the Nature and Treatment of Animals (San Francisco, 1995), 16667. See
M. Bose, Two Phases of Scholastic Self-Consciousness: Reections on Method in
Aquinas and Pecock, in: Aquinas as Authority (Leuven, 2002), 87107, Greene, 1997,
1815, and Lahey, Reginald Pecock.
46
R. Pecock, The Reule of Chrysten Religioun, ed. W.C. Greet (London, 1927), 229
30. Note the repetition here of pricking and movynge of kinde, which is placed in
apposition (natural pricking or stiryng) with natural instinct above, Folower, 38.
47
Pecock, Reule, 3031, 229.
48
Pecock, Reule, 225, 463.
49
R.M. Ball, The Opponents of Bishop Pecock, Journal of Ecclesiastical History, 48
(1997), 256.
50
Pecock, Folower, 910; Pecock, Repressor, I, 25.
51
Pecock, Repressor, I, 512 and I, 3940; see also Pecock, Reule, 4623.
52
Pecock, Folower, 52, 50, 48, 50, 46. See note 42 supra.
53
Ed. T.F.T. Plunknett, J.L. Barton, St Germans Doctor and Student (London, 1974).
54
J.H. Baker, Introduction, in: Christopher St German, Doctor and Student
(Birmingham, Al., 1988), 25, 3, 5.
step in the legal debate about the ultimate authority and self-
sufciency of the law of England, and a commentary on the
disputed legitimacy of secular and spiritual jurisdictions.
55
Establishing the foundations or principles and grounds of
English common lawled St German to drawupon the repository of
scholastic teaching on the origin, nature and scope of the various
types of law. His major sources were Aquinas, whom he never
mentions, and John Gerson, who is frequently acknowledged.
56
Many of St Germans brief citations of familiar classical and
Christian authorities, such as the Bible, Aristotle, Augustine,
Jerome, the Decretum, and St John Damascene, are repeated from
Aquinas and Gerson. The eight foundational chapters of Doctor and
Student consist in great part of such extracts and quotations from
this tradition and are, as a result, essentially derivative. These
chapters are the rst four of the work, which treat the eternal law,
the lawof reason or the lawof nature, the lawof god and the lawof
man, and four later chapters (xiiixvi) which dene and explain
synderesis, reason, conscience and equity.
The editorial work of identifying all of St Germans sources was
not undertaken by his modern editor on the plea that completing it
would have delayed publication of the text indenitely. He does
conrm, however, with examples, that St German relies primarily
on Aquinas and Gerson, and that his denitions are indeed
derivative in being conventional enough and commonplace.
57
It
has also been observed that St German was not truly familiar
with the canonists he occasionally quotes, and that although he
knew Gersons works at rst hand his was not the knowledge
acquired by an expert.
58
These opinions about St Germans
knowledge of his sources are conrmed by his surprisingly casual
use of them. In one striking example, J.H. Burns has pointed out
that St Germans denition of equity quotes and conates three
sentences (fty-eight words) fromGerson with a one hundred and
twenty-four word passage quoted from Aquinas, without ac-
knowledging either author, a conation generally unnoticed by
modern commentators.
59
St Germans indebtedness to this scholastic tradition is well
exemplied by his repetition of the language and ideas of Ulpian,
Isidore, the Decretum, its gloss, and Albert, all of which may be
discerned in a running palimpsest beneath the denition of the
natural law that begins the second chapter of Doctor and Student.
The presence of this language is forecast in the echo of the
Decretum evident in the title of this chapter: Of the lawe of reson
the whiche by Doctouris is called the lawe of nature of reasonable
creature.
Doctoure) Fyrste it is to be understande that the law of nature
maye be considered in two maners that is to saye generally and
specyally when it is consyderyd generally then it is referryd to
all creatures as well reasonable and unreasonable for all
unreasonable creatures when unimpeded and not disordered lyve
under a certeyne rewle to them given by nature necessarye for
them to the conservacyon of thyr beynge They preserve their
kind; they nourish their young and their offspring by natural
instinct, and by nature fear what is contrary to their being; and
according to John Gerson the natural law of animals is that law
which every animal has unless impeded or disordered. But of this
lawe it is not oure intent to treate at this tyme. The lawe of
nature specyally consyderyd: whiche is also called the lawe of
[reason] pertayneth oonly to creatures reasonable that is man
whiche is create to the Ymage of god. And this law ought to be
kept as well among Iewes & gentyles as amonge crysten men.
And this is the law which among the learned in English law is
called the law of reason, which natural reason has established
among all men so that there is a natural instinct present in all men
to observe it.
60
Repeating Alberts earlier distinction between general and
special consideration of the natural lawallows St German to invoke
Isidores instinctu naturae twice, once as the law applies to all
creatures, reasonable and unreasonable, and once as it is
established in, and pertains only to creatures reasonable, with
the result that there is an instinctus communis. . .present in all men
to observe it.
61
St Germans inclusion of both Isidores instinctu
naturae and its redeployment into a reason based instinctus
communis by the glossa ordinaria had only a modest inuence on
later thinkers, since these assertions were excised from the
frequently republished and inuential English translations of
Doctor and Student, as the italics in the quotation indicate.
62
What
this paragraph does establish, however, is that this language and
these ideas had become an integral part of the inherited furnish-
ings and stock-in trade of natural law discourse in England in the
early sixteenth century. The paragraph continues in a manner
typical of St German in naming John Gerson twice as a source while
silently quoting Aquinas well-known denition of the natural law,
and adopting his term inclinatio to designate mans tendencies
towards the good of his nature.
63
In fact, at least four of the foundational chapters of Doctor and
Student, those treating the eternal law, the natural law, synderesis
and reason, are an admirable proving ground to illustrate how the
connotations of Isidores phrase instinctu naturae a divine
impulse of the mind to recognize and observe the law of nature,
distinguished from the discursive process of enactment once
they were attached by the glossa ordinaria to an instinct
proceeding from reason, were integrated within scholastic
discourse about the natural law and transmitted to early modern
England.
What is distinctive in St Germans summary of this scholastic
inheritance is his noting, twice, that the lerynd in the lawe of
Englande call the natural law the law of reason.
64
That change of
name reects the centrality of reason, understood as both the
divine transcendent order of the universe (the ryghtwyse
Iugement of the fyrste reason [whiche is the law eternall.]),
65
and the power of the human intellect, to St Germans presentation
of the natural law. With that exception, these four chapters employ
traditional biblical and patristic references, maxims and meta-
phors, as well as the language of medieval epistemology and
55
Baker, Doctor and Student, 20.
56
Barton, Doctor and Student, xxiii, 344.
57
Barton, Doctor and Student, xxiii, xxiv.
58
R.H. Helmholz, Christopher St German and the Law of Custom, University of
Chicago Law Review, 70, (2003), 134. Barton, Doctor and Student, xxviii, says that St
German was neither much of a canonist nor much of a civilian.
59
Barton, Doctor and Student 95, 97. Burns commentary on Zoa Reugers
Gersons Concept of Equity and C. St German, History of Political Thought, III (1982),
130 provides corrective evidence that throws doubt on Reugers claimthat Gerson
was the main inuence on St Germans views of equity and conscience. More
recently, neither M.D. Walters nor D.R. Klinck take Burns corrections into account
in their lengthy analyses of St Germans thinking. See J.H. Burns,St German, Gerson,
Aquinas, and Ulpian, History of Political Thought, IV (1983), 4439; M.D. Walters,
St German on Reason and Parliamentary Sovereignty, Cambridge Law Journal, 62
(2003), 3413 and 345; D.R. Klinck, Conscience, Equity and the Court of Chancery in
Early Modern England (London, 2010), 479 and 51.
60
Barton, Doctor and Student, 13.
61
Barton, Doctor and Student, 13. Barton translates both St Germans instinctu
nature and his instinctus communis as natural instinct instead of instinct of nature
and common or universal instinct. See note 26 above.
62
Words in italics in Bartons edition are his modern translation of Latin words
untranslated in the rst English versions.
63
Thomas Aquinas, Summa Theologiae, III, 91.2: the rational creatures
participation of the eternal law.
64
Barton, Doctor and Student, 7, 13. In his Introduction St German announces that
he will use the term the law of reason in Doctor and Student, but then drops this
sentence and promise, but not the practice, from the English translation.
65
Barton, Doctor and Student, 11.
psychology, to present and explain the recognition by human
reason of the natural law.
The reason of the wisdomof God is the gouernour of all dedes
& mouvynges that be found in any creature. This fyrste reason is
the prime right reason and the law eternal. It is the source of al
other lawes, of justice, of right and title, of truth and equity.
[C]reate to the Ymage of god, humanity exercises its reason to
discover the law of nature of reasonable creature, now called the
law of reason, through participation or knowledge of eternal law.
Because the natural lawis inscribed and wryten in the herte of all
human beings, and because it is this lawwhich natural reason has
established among all men so that there is a common instinct
[instinctus communis] present in all men to observe it, it is
immutable and universal, even though man and women differ in
their capacity to discern and follow it.
66
The naturall light of understandynge reects the light of the
Lords countenance in Psalm iv:6, which is to say that it
participates in the light of truth, and is thus made lyke to the
dygnyte of aungellys, according to Dionysius the Areopagite.
While the spark of reason is a mere remnant of humanitys
original moral integrity, it is nevertheless a fragmentary
participation in intelligence, earning it the designation of
synderesis, which St. German equates with Augustines higher
parte of reason.
67
These ve gures of speech are given an
epistemological basis when St Germanmoves fromthe authority of
the Bible and Dionysius, Jerome and Augustine, to the psychologi-
cal functioning of the human intellect.
When the intellect directly apprehends and assents to those
practical and speculative principles that are the foundation of both
the natural law and all knowledge, once their terms are
understood, it is known as synderesis. This activity is pre-
deliberative and pre-discursive and it never errs. This manner of
knowing is also characteristic of angelic nature, to understande
without serchynge of reason, and to that nature man is Joyned by
sinderesis. Discursive reason, on the contrary, proceeds by
ratiocination, a logical and consecutive process from one thing
that is understood to another. . .from premise to conclusion.
Reason in this sense is sometimes right, and sometimes errs. This
distinctive activity of synderesis leads St German to note that some
identify it with the natural law: And therefore sinderesis is called
by some men the lawof reason for it mynystreth the pryncyples of
the lawe of reason, the whiche be in every man by nature.
68
To recapitulate: introduced by Isidore, conrmed and given
status by prominent quotation in the Decretum, linked with reason
in the glossa ordinaria, the idea that human awareness of the
principles of the natural law arose from a divine instinct that was
pre-deliberative and universal found subsequent corroboration in
biblical quotations, patristic citations, identication with Jeromes
spark of conscience, synderesis, and the analysis of scholastic
psychology. St Germans chapters are the rst and last attempt in
English in the early modern period to encapsulate and endorse this
scholastic inheritance. Inexplicably, the translations of Doctor and
Student eliminate a signicant proportion of this encapsulation.
Assimilation
Both popular and professional religious writing in England and
Scotland in the sixteenth and seventeenth centuries repeat the
medieval association of instinct of nature with the natural lawthat
has been traced above. That inherited and traditional association is
formally recognized by Edward Waterhouse in 1663, in a
commentary on Sir John Fortescues De laudibus legum Angliae:
This Law of Nature some of the learned do make fourfold, Lex
Mosaica, instinctus naturae, jus gentium, jus pretorium. . .this Law
. . .being the instinct of humane nature, and a donary of Gods, the
natura naturans to the natura naturata in man.
69
Instinct of nature,
natural instinct, and instinct alone, are used indiscriminately to
designate the source of natural, pre-deliberative, non-discursive
knowledge by humankind of the principles of good and evil, in the
absence of an obsolescent synderesis.
Characteristic of this linguistic habit is the identication, by
synonymous and stylistic pairing, of instinct with the law of, and
especially with the metaphoric light of, nature, expressed as the
law of reason, the light of reason, rational instinct, the light of the
mind, natural light, imprinted light, implanted notion, natural
reason and right reason. For example, Thomas Wilsons A Christian
Dictionarie of 1612, the rst dictionary of the Bible in English,
denes law in terms that recall synderesis: Natural instinct and
light of reason, commanding honest things & forbidding the
contrary; or the Law of Nature written in a mans heart Rom
ii.14.
70
Writers sought a mode of expression that would allow them to
present the instinct or light of nature as participant in the Reason
that ordered the universe, yet operative prediscursively in human
minds. So Sir James Stewart speaks of that divine Impress and
rational Instinct, whereby the very course of Nature is upholden,
and John Hartcliffe summarizes the point in 1691: For by natural
instinct we know what we ought to do, antecedent to all Reason
and Discourse.
71
Consequently, it was at the prompting of this rational instinct or
light of nature that humanity also acknowledged the existence of
God, the self-evident theoretical and practical principles of
knowledge, the necessity of justice, the claims of equity, the
dictates of conscience and the authority of right reason. Examples
abound in the period and emerge from writers of various religious
convictions. The Jesuit priest, Robert Parsons, declares in 1590:
Thys then is the Morall Phylosophers rst argument: the
inclination of all people to believe a Godhead: the instinct of
nature to confess it,
72
and he is echoed by the clergyman Andrew
Willet in 1611, who attributes the Gentiles knowledge of God and
the natural lawto that naturall instinct and light of the mind.
73
In
1675 Isaac Barrow, mathematician and theologian, explains: That
men should thus conspire in opinion . . . was by way of natural light
or instinct (as the rst most evident principles of science are
conceived to be, or as the most effectual propensions towards good
are) implanted in mans nature.
74
George Keith, a Quaker, nds in
66
Barton, Doctor and Student, 9, 11, 15, 11, 13, 11, 13. For an illuminating
explanation of the medieval understanding of the network of meanings of the
word reason see J.A. Alford, The Idea of Reason in Piers Plowman in: Medieval
English Studies Presented to George Kane, ed. E.D. Kennedy, R. Waldron, J.S. Wittig
(Wolfeboro, NH, 1988), 199215.
67
Barton, 17, 15, 83, 81, 87, 85. The inuence of Doctor and Student on legal
education is evident in George Keiths assertion that there is an infallible and
incorruptible Law planted by God in all men,. . . which the lawyers call synderesis.
Truths defence (London, 1682) 90.
68
Barton, Doctor and Student, 85, 81, 83, 85. It has been persuasively suggested
that St. Germans surprising and repeated insistence that synderesis is an
intellectual power that recognizes both speculative and practical principles was
the consequence of his mistaken substitution of Aquinas denition of the intellect
for synderesis. See J. McVey Hunter, C. St Germans Doctor and Student: the
Scholastic Heritage of a Tudor Dialogue, Ph.D dissertation, 1984, University of
Colorado, 1869.
69
E. Waterhouse, Fortescue illustratus, or, a commentary on that nervous treatise, De
laudibus legum Angliae (London, 1663), 28.
70
T. Wilson, A Christian dictionarie (London, 1612), s.v. law. Reprinted thirteen
times until 1678.
71
J. Stewart, Naphtali, or the wrestlings of the church of Scotland (Edinburgh, 1667),
147, and J. Hartcliffe, A treatise of moral and intellectual virtues (London, 1691), 359.
72
R. Parsons, The second part of the booke of Christian exercise (London, 1590), 60.
73
A. Willet, Hexapla, that is, a six-fold commentary. . .Romanes (Cambridge, 1611),
60.
74
I. Barrow, The being of God Proved from Universal Consent in: The Works of
Isaac Barrow (New York, 1845), II, 254.
Romans ii:14 evidence of the very instinct of common justice that
God hath put into mens Hearts,
75
and the most signicant English
theologian of his age, the Puritan William Perkins, in his A
Discourse Of Conscience, 1596, says that the laws of common equity
are such as are made according to the law or instinct of nature
common to all men.
76
The most striking and revealing substitution of the demotic
English word instinct for the Latin synderesis appears in Francis
Bacons Advancement of Learning, 1605. He explains that a great
part of the moral lawis not ascertainable by the light of nature, and
asks: howthen is it that man is saide to have by the light and lawe
of Nature some Notions, and conceits of vertue and vice, justice &
wrong, good and evill? The answer lies in the fact that the light of
nature is used in two sensesone springing from reason, sense,
induction and argument: The other, that which is imprinted upon
the spirit of Man by an inward Instinct, according to the lawe of
conscience, which is a sparkle of the puritie of his rst Estate: in
which later sense onely he is participant of some light, and
discerning: touching the perfection of the Morall lawe: but how?
Sufcient to check the vice, but not to informe the dutie.
77
In this
half sentence Bacon deliberately repeats three of the four central
terms in Jeromes ancient commentary on the eagle in Ezekiels
vision: the biblical spirit of man, conscience, and sparkle, while
substituting inward instinct for synderesis.
78
Bacon does not omit
the Calvinist caveat that frequently accompanies and limits such
endorsements of the light of nature.
Finally, Thomas Hall, commenting on 1 Corinthians xi: 14 in
1654 (Doth not even nature itself teach you), joins instinct and
right reason: by nature here is meant, the light and dictate of right
reason in the understanding, informing men by its common
notions and instinct, what is good, and to be done, or what is evil,
and to be avoided.
79
Thomas Hobbes
Both instinctus and instinct appear only once in Thomas Hobbes
many Latin and English works, and then only to be included in two
lists of insignicant words and propositions scornfully dismissed
from serious discourse. The rst list comes at the conclusion of his
early work, De Corpore, drafted in the 1640s and eventually
published in Latin in 1655, and in English in 1656. It was the rst
section of the three section Elementorum Philosophiae, and the
second section of that work to be published, after De Cive; it deals
with both metaphysics and physics, the movement of bodies.
Hobbes conclusion proposes a simple test for explanatory
hypotheses other than his ownthat they be conceivable. This
test rules out of court, in his opinion, those who say any thing may
be moved or produced by it self, by Species, by its own Power, by
Substantial Forms, by Incorporeal Substances, by Instinct, by
Antiperistasis, by Antipathy, Sympathy, Occult Quality, and other
empty words of Schoolmen.
80
Hobbes was certainly not the rst to reject such empty words in
the explanation of physical effects, nor the rst to indict instinct as
one of them. His friend KenelmDigby had called in 1644 for effects
to be explained not by secret instincts, and antipathies and
sympathies, whereof we can give no account,. . .but by downe right
materiall qualities.
81
Such criticisms of instinct, including this of
Hobbes, coming as it does at the end of a treatise on bodies, are
directed at the use of instinct as a stand-alone term to mean an
unknown hypostasized force that purported to explain their
behavior, a usage found as early as Isidores Etymologies. Such
words were for Hobbes disguises for ignorance. As he said in
Leviathan, they signify neither the agent that produceth them
[effects], nor the operation by which they are produced.
82
Isidores
instinctu naturae [id est Deus], and its later identication with a
rational instinct that recognizes intuitively the basic theoretical
and practical principles of ratiocination, does not seemto be in the
minds of these critics. It is, however, inconceivable that Hobbes
would have been unaware or accepting of the regular appearance
of the expression instinct of nature in the description and
denition of the natural law, and his meticulous exclusion of it
in that context, described below, conrms that view.
Hobbes second list includes instinct as the sole single word in a
selection of twenty-seven two word expressions and fourteen
propositions. Hobbes quotes these sequentially from the argu-
ments of Bishop John Bramhall at the end of his Questions
concerning Necessity, Liberty and Chance, a summary of his long
debate with Bramhall
83
. His opponents terminology, says Hobbes,
reects the study of School-divinity, and is the same language
with that of the kingdom of darkness, that he had exposed and
denounced in Chapter XLVI of Leviathan. With the exception of
instinct, this second list is replete with multi-word expressions of
scholastic philosophy, such as actus eliciti, actus imperati, moral
efcacy, decient cause, simple act, and nunc stans,
84
which
Hobbes denied were terms of art, and many of which he mocked as
the debate progressed.
Without venturing too far into the verbal thickets where
Bramhall and Hobbes present their denitions and disagreements
about spontaneity and deliberation, liberty of election and
antecedent determination, volition and necessity
85
the reader of
this debate may discern that Bramhalls occasional use of the
expression instinct of nature carries all of the connotations it
displayed in the natural law and religious writing of his era.
Hobbes, on the other hand, prefers to continue his revival and
substitution of the classical Stoic expression necessitas naturae for
instinctu naturae in order to avoid those connotations, to redene
the natural law, and thus to assert his convictions about the
bedrock nature of things.
Hobbes original substitution of necessitas naturae for instinctu
naturae in his discussion of the natural law can be found at the
beginnings of two of his earliest philosophical works, the De
Corpore Politico, circulated in manuscript in 1640, and published in
an unauthorized edition in1650, and in De Cive, his rst systematic
work of political thought, completed in November, 1641,
distributed to a few friends in 1642, and nally published in 1647.
In the earliest paragraphs of these two books Hobbes provides
his account of the origin and basis of human moral awareness, and
introduces what may be called a transgressive change in the
language of the natural law, by substituting a Stoic concept,
necessitas naturae, for the traditional instinctu naturae.
75
G. Keith, The Presbyterian and Independent visible churches in New England
(London, 1691), 118.
76
W. Perkins, A Discourse of Conscience (London, 1596), 18.
77
F. Bacon, The Advancement of Learning, ed. M. Kiernan (Oxford, 2000), 183.
Although Kiernan cites Michele le Doeuffs note on this passage, he ignores her
reference to synderesis: Du progress et de la promotion des saviors (Paris, 1991), 370.
78
See R.A. Greene, Synderesis, the Spark of Conscience, in the English
Renaissance, Journal of the History of Ideas, 52 (1991), 1957 and 21415.
79
T. Hall, Comarum akosmia; the loathsomenesse of long haire (London, 1654), 28.
80
T. Hobbes, Elements of philosophy, the rst section, concerning body (London,
1656), 213.
81
K. Digby, Two treatises (Paris, 1644), 322. J. Smith, the Cambridge Platonist, also
rejects instincts: Select Discourses (London, 1660), 262.
82
T. Hobbes, Leviathan, ed. Michael Oakeshott (Oxford, 1957), 445.
83
See the account of the origin and background of this debate in N.D. Jackson,
Hobbes, Bramhall and the Politics of Liberty and Necessity (Cambridge, 2007), 8396,
and of the philosophical issues in Hobbes and Bramhall on Liberty and Necessity, ed. V.
Chappell (Cambridge, 1999), xivxxiii.
84
T. Hobbes, Questions concerning Necessity, Liberty and Chance in The English
Works of Thomas Hobbes of Malmsbury, ed. W. Molesworth (London, 18391845), V,
448.
85
See Jackson, Hobbes, 1056, and Chappell, Hobbes, xivxxiii.
In doing so he silently banished instinctu naturae from his view
of the basic nature of things well before he issued a complementary
prohibition on the use of stand-alone instinctus in De Corpore. His
new term, necessitas naturae, carried connotations and implica-
tions that contrast strikingly with the familiar instinctu naturae.
The core meaning of instinctus, urge or impetus, when joined with
naturae, becomes essentially ancillary; it shifts the focus of the
phrases meaning towards further denition of the chameleonic
natura. It did carry a suggestion of divine origin, as noted above,
and this contributed to the addition of the later explanatory
appendix id est Deus, but its semantic weakness also invited further
explication of natura, such as that provided by the idea of an
instinct proceeding from reason of the glossa ordinaria. The
semantic authority and history of necessitas, on the contrary, are
such that it dominates, denes and determines natura. Its
connotations are absolute, negative, restrictive and nal. Hobbes
himself noted that the Stoics equated necessitas with fatum, or fate,
and later on in the appendix to his Latin translation of Leviathan he
adds that the Stoics understood fatum to mean eternal decree.
86
The goddess Necessitas in Roman mythology is frequently
represented carrying a brazen nail, emblematic of her afxing
decrees. Thus Hobbes has substituted an absolute, compulsory,
determining, inexorable and ineluctable force as the ultimate basis
of things, including human moral values, a force inscrutable by
human reason, a force appropriate to his materialistic, mechanical
world of corporeal bodies in motion, a force lacking purpose or
teleology.
In the sixth paragraph of De Corpore Politico he presents a
radically redened version of the scholastic synderesis, in which
human will and desire are not urged, stimulated or inclined by an
instinctu naturae, id est Deus, to seek the good and avoid evil, but are
required, by a compulsory necessitas naturae, to seek Bonum sibi,
and to avoid that which is hurtfull. His focus is on the individual,
the good is dened as peace and self-preservation, the ultimate evil
is self-cessation or death, and the necessitas involved appears to
exclude choice: And forasmuch as necessity of nature maketh men
to will and desire Bonum sibi, that which is good for themselves,
and to avoid that which is hurtfull, but most of all, the terrible
enemy of Nature, Death . . .It is not against Reason, that a man doth
all he can, to preserve his owne body and limbs, both from Death
and Paine.
87
This point is conrmed and the substitution repeated
in the fth law of nature in Leviathan: For seeing every man not
onely by Right but by necessity of Nature is supposed to endeavour
all he can, to obtain that which is necessary for his con-
servation. . ..
88
Another redenition of synderesis in the seventh paragraph of
De Cive is remarkable for its exclusion of instinct despite its focus
on the primary human concern of self-preservation, a concept
nearly universally identied with, and called, an instinct. Hobbes
assertion that the human ight from the evil of death is utterly
natural (we cannot will to do otherwise) is conrmed rhetorically
in this passage by comparison to the fall of an inanimate object, a
stone, which again appears incompatible with human choice: For
each man is drawn to desire that which is Good for him and to
Avoid what is bad for him, and most of all the greatest of natural
evils, which is death; this happens by a real necessity of nature as
powerful as that by which a stone falls downward.
89
Bramhall subscribed to, and defended, traditional scholastic
teachings about natural law, right reason and its source and
participation in, to repeat Michael Oakeshott, Reason, the divine
illumination of the mind that unites man with God.
90
Freedom,
consequent moral responsibility exercised through right reason,
and the obligations of conscience were understood to be denitive
of the human condition. Hobbes initially ridiculed the term recta
ratio in De Corpore Politico as something not found or known in
rerum natura, and as nothing more than the proponents own
reason in disguise. Despite that judgment he cleverly retained and
adapted the term, with its historical resonances intact, to his own
ends.
91
For example, the passage just quoted from De Cive is
immediately followed by three short sentences, all citing right
reason, which support the assertion that mans liberty and right of
self-defense and self-preservation are fully in accord with right
reason. Early in their exchange Bishop Bramhall cites the activities
of bees and spiders and eventually identies their cause as the
instinct of nature. The expression clearly implied for himits silent
medieval addendum, id est Deus: my thoughts did not reect so
much upon them, as upon their Maker. . . I saw them, but I praised
the marvellous works of God, and admired that great and rst
intellect, who hath both adapted their organs, and determined
their fancies to these particular works. . . which I knew to proceed
from a mere instinct of nature.
92
Consequently, Bramhall argues,
bees and spiders do not deliberate or elect as humans do.
Hobbes, on the other hand, convinced that the ideas of our
minds are the same with those of other living creatures, views the
insects quite differently. For bees and spiders, if he [Bramhall] had
so little to do as to be a spectator of their actions, he would have
confessed not only election, but also art, prudence, and policy in
them, very near equal to that of mankind.
93
The irony in this
response is that Hobbes regarded the actions of both insects and
humans as the product of the necessity of nature, even while
insisting that freedom of action, in the case of human beings, was
compatible with that necessity.
94
What is intriguing is that Hobbes does not subject Bramhall to
correction here, as he regularly does in other cases of Bramhalls
lapses into scholastic diction, by ridiculing and exposing his use of
instinct. Instead, he diverts the readers attention to quibbles over
disputed meanings of kind of work, and to Bramhalls alleged
misuse of the word contingent.
95
Does he decline to attack
Bramhalls use of the phrase instinct of nature because of instincts
latent ablative rather than substantive and hypostatic force in that
phrase, and its implied reference to the ultimate causal agent, God
himself?
96
86
Hobbes refers in 16421643 to necessitas, sive, ut Stoici appellabant, fatum
[necessity, or, as the Stoics called it, fate] in his comments on necessity in
appraising Thomas Whites De mundo dialogi tres. Later, in the Appendix to his Latin
translation of Leviathan in 1668 he equates the Stoic fatumwith decretum aeternum.
See T. Hobbes, Thomas Whites De Mundo Examined, trans. H.W. Jones (London,
1976), 424, and T. Hobbes, Opera Philosophica quae Latinae Scripsit (London, 1861),
III, 517.
87
T. Hobbes, De Corpore Politico or, the elements of law, moral and politick (London,
1650), 3.
88
Hobbes, Leviathan, 99.
89
T. Hobbes, On the Citizen, ed. and tr. R. Tuck, M. Silverthorne (Cambridge, 1998),
27. Hobbes scrupulously avoids using instinctus/instinct to describe the human
desire for self-preservation. In Hobbes and the Law of Nature (Princeton, 2009) Perez
Zagorin is unaware of that fact and frequently resorts to using instinct to explain
Hobbes view of self-preservation.
90
Hobbes, Leviathan, xxvii.
91
De Corpore Politico, 180. See Jacksons trenchant comments on Hobbes
condence in his own right reason, 76 and 2479, and Oakeshotts warning to
expect equivocation when the expression Right Reason [appears] in Hobbes
writings. Michael Oakeshott, The Moral Life in the Writings of Thomas Hobbes, in:
Rationalism in Politics and Other Essays (Indianapolis, 1991), 329.
92
Hobbes, English Works, V, 66 and 88.
93
Hobbes, English Works, V, 80.
94
See Chappell, Hobbes, xix and xxiii.
95
Hobbes, English Works, V, 1956, 4950 and 189.
96
In addition, it is surprising to nd that instinct is missing from a third list of
proscribed words in Leviathan in 1651, despite its repetition of ve of the nine terms
in the De Corpore list. Nor is instinct mentioned in three similar lists in Decameron
Physiologium (1678). See Leviathan, 445, and Decameron Physiologium (London,
1678), 3, 71, 104.
In the year of Leviathan, 1651, 4 years after De Cive had been
formally published in Paris, an anonymous and unauthorized
translation of it, entitled Rudiments concerning Government and
Society, was published in London
97
De Cive begins with a brief
dedication to Hobbes patron, the Earl of Devonshire, a manifesto in
which Hobbes dismisses the moral philosophers of the past for
their failure to explain natural right and natural laws, and
provides a capsule account of the origin and development of his
own thinking about natural justice. A modern translation of the
passage reads:
I was alerted by the very name of justice (by which is meant a
constant will to give every man his right) to ask rst how it is
that anyone ever spoke of something as his own, rather than
anothers: and when it was clear that it did not originate in
nature but in human agreement (for human beings have
distributed what nature had placed in common),I was led from
there to another question, namely for whose benet and under
what necessity, when all things belonged to all men, they
preferred that each man should have things that belonged to
himself alone. And I saw that war and every kind of calamity
must necessarily follow from community in things, as men
came into violent conict over their use; a thing all seek by
nature to avoid. Thus I obtained two absolutely certain
postulates of human nature, one, the postulate of human greed
by which each man insists upon his own private use of common
property; the other, the postulate of natural reason, by which
each man strives to avoid violent death as the supreme evil in
nature.
98
Richard Tuck has noted that the 1651 translation contains
mistranslations or misunderstandings of Hobbes Latin.
99
Its
translation of this passage, especially of the second sentence,
provides numerous examples: And I found the reason was, that
from a Community of Goods, there must needs arise Contention
whose enjoyment should be greatest, and from that Contention all
kind of Calamities must unavoydably ensue, which by the instinct
of Nature, every man is taught to shun.
100
The translator
suppresses Hobbes reference to war, and provides a gratuitously
expansive version of the rst part of this sentence: the whole
sentence is eleven words longer than the modern translation. In
addition, he makes two choices, both of which reveal his failure to
understand Hobbes intentions. One of these fortuitously illus-
trates the difference between the alternative languages of the
natural law used by Bramhall and Hobbes.
First the translator changes and weakens Hobbes meaning by
twice translating his thrice repeated necessitas as impulsives and
unavoydably, thus demonstrating his unawareness of the
importance of Hobbes adoption and pointed use of the Stoic term
for fate or natural law. He has also been misled by contemporary
natural lawparlance into a unique and understandable intrusion of
the familiar colloquial expression which had become an integral
part of such parlance since Isidore, and has translated natura as by
the instinct of nature. While this is not a mistranslation, these
English words, with their connotations, do not, as we know, reect
Hobbes style, intention or meaning. This English version of these
ve Latin words, id quod omnes natura fugient, does, however,
satisfy the semantic expectations of the literate and informed
reader of Hobbes Latin in 1651, as the various examples quoted
above testify; it also conrms the consensus that Hobbes was not
the author of this translation.
John Locke
It is possible, but improbable, given Lockes derivative
acquaintance
101
with the writings of Hobbes, that his selection
and concessive reprieve of instinct and its companions, sympathy
and antipathy, were intended, at least in part, to distance himself
from Hobbes and his dogmatic rejection of those words.
Discounting that possibility, it remains a notable coincidence that
Locke begins his discussion of the Remedies of the Imperfections
and Abuses of Words in the third book of the Essay Concerning
Human Understanding by reminding his reader how often he has
met with such Words; as Instinct, Sympathy, and Antipathy used by
those who had no Ideas in their Minds to which they applied them;
. . . Not but that these Words, and the like, have very proper
Signications in which they may be used. . .
102
Although he granted this reprieve, approving the use of instinct
in its proper Signications, Locke provided no examples of such
usage, seldom used the word in his published and unpublished
writings and, on occasion, substituted surrogates. It occurs this
once in the Essay, once in his Two Treatises of Government to
describe the behavior of animals, noted below, once in a letter,
twice in journal entries, and four times in his early Latin academic
exercises on the natural law.
103
He takes particular care, as had Hobbes, to avoid using instinct
in general and especially in its usual association with the human
drive to self-preservation. For example, in a well-known passage in
his Two Treatises of Government, he begins by stating that God
directs both animals and man towards the good of self-preserva-
tion, the inferior Animals by their Sense, and Instinct, and man by
his Senses and Reason. God planted in him, as in all other Animals,
a strong desire of Self-preservation, an example and evidence of
divine purpose and design. Two sentences later that strong desire
reappears in emphatic and self-consciously corrective repetition,
and is identied as a Principle of Action.
For the desire, strong desire of Preserving his Life and Being
having been Planted in him, as a Principle of Action by God
himself, Reason, which was the voice of God in him, could not but
teach himand assure him, that pursuing that natural Inclination
he had to preserve his Being, he followed the Will of his Maker,
and therefore had a right to make use of those Creatures, which
by his Reason or Senses he could discover would be serviceable
thereunto.
104
The repeated words strong desire appear to be pressed into
service here as a surrogate for instinct of nature, as does the term
made familiar by Aquinas, natural inclination. It has been
generally observed that the arguments and assertions in this
passage conict with Lockes rejection of innate practical
principles at the beginning of the Essay. Peter Lasletts editorial
note on the passage observes that Preservation, of oneself and all
97
See N. Malcolm, Charles Cotton, Translator of Hobbes De Cive, Huntington
Library Quarterly, 61 (1998), 25987.
98
T. Hobbes, On the Citizen, ed. and tr. R. Tuck, M. Silverthorne (Cambridge, 1998),
56.
99
Tuck, Silverthorne, On the Citizen, xxxvi.
100
T. Hobbes, De Cive The English Version, ed. H. Warrender (Oxford, 1983), 27. This
appearance of instinct is unique in this translation.
101
J. Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge, 1988), 92.
102
J. Locke, An Essay Concerning Human Understanding, ed. P.H. Nidditch (Oxford,
1975), 512.
103
Lockes advice to Nicholas Toinard in a Latin letter of February 14, 1685 is to Be
guided by your own instinct [instinctus]. The Correspondence of John Locke, ed. E.S.
De Beer, (Oxford, 19761989), II, 693. In a journal entry of 1693 Locke associates
instinct with irregular desires, linking it to animal drives: Man was made mortal,
[and] put into a possession of the whole world, in the full use of the creatures, there
was scarce room for any irregular desires, but instinct and reason carried him the
same way. Locke, Political Essays, ed. M. Goldie (Cambridge, 1997), 320. See also 294.
104
Locke, Two Treatises, 2045.
mankind, is a natural law for Locke, perhaps the natural law, here
presented as a Principle of Action planted by God in man.
105
He
also draws attention to a second passage from Lockes The
Reasonableness of Christianity, 1695, which is strikingly indebted
to the popular natural law parlance traced above:
The same spark of the Divine Nature and Knowledge in Man,
which making hima Man, shewed himthe Lawhe was under as
a Man; Shewed himalso the way of Attoning the merciful, kind,
compassionate Author and Father of himand his Being, whenhe
had transgressed that Law. He that made use of this Candle of
the Lord, so far as to nd what was his Duty; could not miss to
nd also the way to Reconciliation and Forgiveness, when he
had failed of his Duty: Though if he used not his Reason this
way; If he put out, or neglected this Light; he might, perhaps see
neither.
106
Here Locke relies upon two ancient metaphoric expressions
whose medieval origins in one case and history in both had
identied them with synderesis and its direct apprehension of the
natural law.
107
For a reader familiar with Lockes fusillade against
innate theoretical and practical principles as well as innate ideas in
the Essay it is puzzling to have himrefer to these two gurative and
diminutive moral lights, which are ignited, and their light
authenticated, by their reection of the light of divine Reason,
the source of the right reason that Locke had joined Hobbes in
rejecting.
In the early 1660s, when Locke was Censor of Moral Philosophy
at Christ Church, he prepared a set of Latin velitationes, wranglings
or academic disputations, for use in his teaching.
108
These
disputations posed eleven Questions about the natural law,
afrming or denying each, and analyzed eight of them. The
traditional scholastic form of these exercises, and their status as
rough drafts, makes it unsurprising that there are inconsistencies
and contradictions in the text, which have been noted by von
Leyden and others.
109
It is possible that some of these are there to
challenge and set conundrums for his students: Locke himself says
that he always went out at once beaten and enriched after his
sessions with students.
110
Our concern is with only one set of these: the evidence in
various forms that Locke remained ambivalent and uncertain, to a
degree and at some level, about his dismissal of natural, or
instinctive knowledge of the principles of the natural law, a
concern that seems to have resurfaced many years later in the two
passages quoted above.
That evidence begins with his deletion in manuscript of the long
eighth paragraph in the discussion of his rst Question: Is There a
Rule of Morals, or Law of Nature, Given to Us? Yes. In that
paragraph he had written that there are some moral principles
which the whole of mankind recognizes, and which all men in the
world accept unanimously; but this could not happen if the law
were not a natural one. He then endorses the general consent of
men as the result of some principle which is common to all men
and of which nature itself is the source.
111
The deletion of this
paragraph has recently been proposed by G.A.J. Rogers as the
Archimedean moment in Lockes philosophical development,
signaling his discovery that he was a newly convinced empiricist.
112
To delete the paragraph was the work of a moment, to erase
every vestige of its contents from his mind was not so simple.
For example, twice in Question one and once again in Question
two Locke has already asserted that the natural law has been
implanted,
113
or is innate, in human hearts. He employs the Latin
adjectives insitus, that is, engrafted, implanted, inborn, innate, and
innatus, inborn, innate, to say this. The natural lawis not the dictate
of reason, for reason does not so much establish and pronounce
this lawof nature as search for it and discover it as a lawenacted by
a superior power and implanted [insita] in our hearts. He silently
includes a maxim from Cicero to make a similar point: This law,
then, is not written, but innate, i e., natural [quae lex non scripta est,
sed innata]. The assertion is repeated a third time: This inward law
is implanted by nature in all men.
If the natural law is thus implanted in the hearts of rational
creatures the meaning of this metaphor would appear to be that it
is known by them. Yet the illustrative analogy with which Locke
concludes Question two adroitly shifts and undermines the
traditional meaning of this language. He compares the natural
lawto veins of gold and silver buried in the earth; recovering those
treasures is so demanding and laborious that fewbecome wealthy.
So it is with knowledge of the natural law: most people fail to
exercise their discursive reason resolutely to discover the
implanted law, consequently there are myriad and conicting
views of it, and few achieve knowledge of it.
114
Lockes comments on the universality of conscience and on the
consequent value of its testimony to the existence of the natural
laware also ambiguous, even contradictory. He afrms in Question
one that all knowthat there is something evil and something good
by nature, as well as that the nature of good and evil is eternal and
certain. He presents his second argument for the natural laws
existence: Thus the sentence which everyone passes on himself
testies that there is a law of nature.
115
This paragraph is
concluded, and the link between conscience and the natural law
conrmed, by the quotation fromCicero just cited. It is only later in
Questions seven and four that Locke outlines the countervailing
evidence that not only individuals but whole nations exist
undeterred by any shackles of conscience, with no sense of law,
and no guilty feeling when they commit utterly loathsome
crimes.
116
Of Lockes fewuses of instinctus/instinct in his writings only two
are references to instinctu quodam naturae. These occur in his
longest analysis of any Question, in number ve: Can the Law of
Nature be Known from the General Consent of Men? No. There he
divides general consent into positive and natural, denes natural
consent as that to which men are led by a certain natural instinct
[instinctu quodam naturae], and conducts a search for that consent
in three areas: in conduct, in opinions and in rst principles.
117
It is in the following analysis that Lockes understanding of the
meaning of the word instinct becomes apparent, an understanding
105
Locke, Two Treatises, 205.
106
J. Locke, The Reasonableness of Christianity, ed. J.C. Higgins-Biddle (Oxford, 1999),
13940.
107
The evidence for this assertion, and the histories of these two metaphors, may
be found in two essays: Greene, 1991, and R.A. Greene, Whichcote, the Candle of
the Lord, and Synderesis, Journal of the History of Ideas, 52 (1991), 61744. For a
parallel passage see L. Andrewes, XCVI Sermons (London, 1629), 751: Secondly,
when God created man according to his owne Image, he breathed into him life
immortall, he gave himsparkes of knowledge, and indued his soule with reason and
understanding, in which regard it is called the candle of the Lord.
108
J. Locke, Essays on the Law of Nature, ed. W. von Leyden (Oxford, 1958).
109
Locke, Essays, 7, 8; see the comments by D, Clay in: J. Locke, Questions concerning
the Law of Nature, ed. and tr. R. Horwitz, J.S. Clay, D. Clay (Ithaca, 1990), 769.
110
Locke, Essays, 237; For Lockes aversion to scholastic disputation see R. Yeo,
John Lockes Of Study (1677), Locke Studies, 3 (2003), 1569.
111
Locke, Essays, 2823.
112
G.A.J. Rogers, Locke and the Creation of the Essay, in Contemporary Perspectives
on Early Modern Philosophy, ed. P. Hoffman, D. Owen, G. Yaffe (Peterborough,
Ontario, 2008), 147. Rogers focuses on Lockes early commitment to his empiricism;
what is argued here is that that commitment was incomplete.
113
Locke, Essays, 111, 117, 133.
114
Locke, Essays, 135.
115
Locke, Essays, 115, 121, 117. See von Leydens comments on Gabriel Towersons
suggestion to Locke: 117 n, 89.
116
Locke, Essays, 191, 155, 167, 169.
117
Locke, Essays, 165.
that explains his reluctance to use the word to characterize human
behavior. While he speaks of a general consent [communis
consensus] to which human beings are led by an instinctu quodam
naturae, Locke in fact means universal consent, uniform, invariable,
absolute and without exception. That is because he understands
instinct to refer to a reied force that limits, denes, determines,
accounts for, and is best exemplied by, the predictable behavior of
animals. That is the very proper Signication[s] of instinct.
As a consequence, his search is for a general consent that must
be invariable and unanimous [constans et unanimis], or unani-
mous and universal [unanimis et universalis]
118
as discovered in
human behavior, opinions and practical principles. Unsurprisingly,
after piling up examples of transgressive behavior and opinion,
Locke nds no evidence of universal natural consent, so dened.
Honesty eventually brings him to consider the case of
self-preservation, which seems to have the greatest claim
to be established as the law of nature, since the whole of
mankind, it seems, is urged to observe [it] by a certain natural
instinct [instinctu quodam naturae].
119
A long paragraph follows
citing the behavior of retainers, slaves and even women,
exemplied by Indian wives, who willingly follow their masters
into death, and whose example invalidates the universality and
thus the very existence of the supposed natural instinct to self-
preservation.
120
Neither modern translator of Lockes Questions seems to have
been aware of the long history of instinctu quodamnaturae. For that
reason they have both chosen to translate it in a modern manner
that by accident accords with Lockes intentions. Their choices are:
by a kind of natural instinct and by a certain natural instinct.
121
Both translations attribute agency to a reied instinct rather than
to nature. Gone is the earlier medieval meaning that resides deep
in the Latin phrase like a palimpsest, and which is retained by a
literal translation: by a certain instinct of nature. Gone is any
implication of a divine stimulus, urge or impetus towards the good,
or a Thomistic inclination. In attributing general consent to an
instinctu quodam naturae Locke has once again, as in his reference
to the law being implanted or innate in human hearts, adopted
traditional terminology but shifted its meaning.
Three times in this sequence of Questions posed, answered and
analyzed, Locke poses and answers a Question but does not analyze
it. In one case the reason is obvious: he had gone ahead and
analyzed that topic, whether the law of nature becomes known to
us through tradition, in the previous Question, number two.
122
The absence of analysis for the other two Questions provides a
rhetorically appropriate coda for this essay by bringing it back full
circle to Ulpians and Isidores denitions. Their titles make that
clear: Can the law of nature be known from mans natural
inclination? No and Are animals bound by the law of nature? No.
Lockes signicant silence about these two Questions (if it is
signicant) also suggests his own lack of success in resolving his
ambivalence about how human beings come to know the natural
law, and is perhaps one reason why he continually resisted
repeated requests from his friend, James Tyrrell, to publish these
Questions.
123
Both are listed in appropriate places in the order of
Questions, the rst just after Locke had examined in Question ve
whether the natural law could be known by a natural consent
based upon an instinctu quodam naturae. The transition to then
examining Aquinas substitution of inclinatio for instinctus was a
natural one. The Question about brutes simply extends the
previous Questions consideration of the natural laws binding
force from humans to animals.
124
Speculation about why Locke did not analyze these two
Questions remains just that. Three additional points may, however,
be made. First, according to von Leyden, there is no evidence to
showthat Locke was acquainted with the original sources of either
Roman or Canon lawwhen he prepared these Questions.
125
Second,
Lockes tendency was to think as a philosopher, not an historian; he
made, as Oakeshott says, no attempt to be a scholar and a
philosopher at the same time.
126
Finally, some readers might be
led to conclude that the lack of analysis in these two cases was
Lockes way of avoiding engagement with the historical legacy of
Ulpian and Isidore summarized in this essay. Put another way, his
silence might be interpreted as further evidence of Lockes
uncertainty and ambivalence about whether natural knowledge
of practical moral principles was, in some sense, implanted in the
hearts of mankind.
118
Locke, Essays, 1667.
119
Locke, Essays, 173; this is Lockes second use of instinctu quodam naturae.
120
Locke, Essays, 173.
121
Locke, Essays, 165, 173, and Locke, Questions, 177, 191.
122
Locke, Essays, 134.
123
Locke, Essays, 910.
124
Locke, Essays, 134, 158.
125
Locke, Essays, 35.
126
M. Oakeshott, John Locke, The Cambridge Review (Cambridge, 1932), 72.

The Origin, Definition, Assimilation and Endurance of Instinctu Naturae in Natural Law Parlance-From Isidore and Ulpian To Hobbes and Locke

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The Origin, Definition, Assimilation and Endurance of Instinctu Naturae in Natural Law Parlance-From Isidore and Ulpian To Hobbes and Locke

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