This chapter explores the development of debates on the moral among theologians from the mid twelfth century to the first half of the thirteenth century. It identifies a crucial turning point in the early decades of the thirteenth century, when interest in understanding the very nature of the human being and its faculties paved the way for a general reassessment of the issue of the different kinds of law.

This chapter argues that naturalization, the process of transforming aliens into subjects through law, was a crucial process in eighteenth-century law and literature. The attempted passage of several naturalization bills across the seventeenth and eighteenth centuries generated conflicting accounts about whether nationality could be a fictional process. Samuel Richardson and Maria Edgeworth take up these conflicting accounts in their novels. In Sir Charles Grandison (1753–54), Richardson upholds the traditional view, which considered naturalization to be part of a return to an original common human nature expressed in natural law. In Harrington (1817), by contrast, Maria Edgeworth endorses a newer, Lockean, contractual and voluntarist approach: the idea that naturalization could be achieved through a Parliamentary statute without the necessity of natural law. These case studies reveal how novelists responded and contributed to naturalization’s transformation from a supposedly natural process to an explicitly fictional process.

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

This chapter asks: how did notions of individual equality arise out of – and contribute to – the intellectual traditions of natural law and contract theory?

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

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

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

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

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

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

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