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History of European Ideas

journal homepage: www.e lsev ier .com/ locate /h is teuro ideasFor my part, I distinguish two kinds of instinct. One is in us quamen, and is purely intellectual; it is the light of nature or intuitusmentis to which alone I think one should trust. The otherbelongs to us qua animals, and is a certain impulse of naturetowards the preservation of our bodies. . .and bodily pleasures.Descartes to Mersenne in 1639 commenting on EdwardHerberts 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 ofSeville begins by noting that it is common to all nations; it is heldeverywhere by instinct of nature not because of any enactment.Treated as oracular and subjected to analysis and interpretation bycivilians, canonists and philosophers in the twelfth and thirteencenturies, that assertion and its key phrase, instinctu naturae, wereunderstood to mean that human awareness of the natural lawarose 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 tobe distinguished, as Isidore had said, from the discursive activity ofreason in enacting laws. It acted in a pre-deliberative wayantecedently to rational calculation to recognize immediately andintuitively the self-evident practical principles of the moral order,once their terms were understood. It was, accordingly, identiedwith Augustines ratio superior, and was deemed responsible forrecognizing the claims of equity, which superseded enacted laws.Inevitably, it was also drawn into equivalence with Jeromes termsynderesis, newly revived and alternatively dened as the spark ofconscience, which was the remnant of mans original moralintegrity, and the source of the practical principles of morality.

The use of the expression instinctu naturae in this manner had avery 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 theinuential glossa ordinaria to the Decretum in 1215, elaborated 30years later by Albert the Great, taken for granted by BishopReginald Pecock when he used it rst in this sense in English in1454, and endorsed and given currency in legal education byChristopher St German in England in 1528. The expression becamecolloquial in English in the seventeenth century. It also survivedHobbes proscription, and Lockes restricted denition of, the

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.

0191-6599/$ see front matter 2010 Published by Elsevier Ltd.doi:10.1016/j.histeuroideas.2010.07.001The origin, denition, assimilation andLaw ParlanceFrom Isidore and Ulpian

Robert A. Greene

Department of English, University of Massachusetts/Boston, 100 Morrissey Blvd., Bosto

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 s

expression instinctu natur

assimilation and enduranc

use, and Locke to limit th

Initially serving simpl

natural law-natura, id est

nature, that is, an instinct

immediately, in a pre-deli

order, once their terms wdurance of instinctu naturae in NaturalHobbes and Locke

125-3393, United States

e, and traces both the subsequent use and the changing denition, of the

in the early history of natural law discourse. It also examines the later

the expression in English, as well as the efforts of Hobbes to proscribe the

eaning, of the term instinct.

predicate a divine stimulus as the source of human knowledge of the

s-instinctu naturae was later understood to refer to an instinct of human

he reason that dened human nature, an intuitive instinct that recognized

tive, non-discursive way, the self-evident practical principles of the moral

understood.

2010 Published by Elsevier Ltd.

medieval word instinctus/instinct. Later treatises on the naturallaw, such as the Swiss jurist J.J. Burlamaquis Principles of Naturaland Politic Law, 1747, endorsed and propagated it.

Ulpian and Isidore

The compilers of Justinians Digest (533) gave considerableprominence to Ulpians (d 228) provocative denition of thenatural law by including it in the rst entry in their summary ofRoman law.2 That prominence almost certainly led Isidore ofSeville, writing a century later, to use Ulpians denition as thebasis of his own.3 His version asserted that the natural lawgoverned only human beings, or nations, contrary both to Ulpiansassertion that it was what nature has taught all animals, and to hisinsistence that it was common to all animals. Isidore carefullychanged the language of one of Ulpians three examples to makethe law apply only to mankind, as he had said, substituting viri(men) for maris (male) in the union of male and female. Herepeated verbatim, however, all three of Ulpians examples of thenatural law the union of male and female, procreation, and therearing of offspring while adding some of his own. By repeatingUlpians examples and juxtaposing them with his own newlyintroduced expression instinctu naturae, the fulcrum of hisdenition, Isidore unintentionally provided his readers with a

cite only one example, Crowe says that Isidores retention of theinstinct of nature his gesture towards Ulpian? has its owndifculties,7 thusmistakenly attributing the expression instinct ofnature to Ulpian,8 and mistakenly assuming that instinctus, as it isused by Isidore, connotes animal behavior.

Isidores use of the chameleon-like natura here can be asmisleading for a modern reader as his use of instinctus. Indescribing the instinctu naturae as operative everywhere, and indistinguishing it from the process of institution or enactment thatis the mark of human laws, Isidore is referring to a generic orconstitutive impulse in human beings, a force of divine origin. Thatthis was his intent is conrmed by his introductory comments onthe general topic of law a few entries earlier in his Etymologies: Alllaws 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-

R.A. Greene /History of European Ideas 36 (2010) 361374362misleading context for that expression which invited them tomisinterpret it. Instinctu naturae was then liable to be mistakenlyunderstood to refer to physical or sensual drives. The result wasthat Isidores denition appeared to be self-contradictory.

In classical Latin instinctus is used primarily to mean impulsesexperienced by human beings, most frequently divine or demonicin origin, not to designate the predictable, apparently non-rationalself and species preservative behavior of animals.4 An example ofits typical use is to be found in the inscription on the Arch ofConstantine (313), attributing the emperors military victory, inpart, to an instinctu divinitatis, an expression probably rooted inCiceros De divinitatis.5

Subsequent changes in the primary connotation rst ofinstinctus and eventually of the English word instinct, as well asIsidores retention of Ulpians examples, have contributed to theconation and confusion of Ulpians and Isidores denitions bymodern historians of the natural law since the Carlyles (1903).6 To

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 aswell. Out of this comes the union ofman andwoman [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 andwomen, 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 from air

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.ing the operations of created nature in all its manifestations were,for Isidore, divine, unlike human laws. As he remarks elsewhere inthe Etymologies (XI, iii, 243): . . .the nature of everything is thewillof the Creator. Whence even the pagans address God sometimesas Nature, sometimes as God. Later medieval commentatorsunderstood this usage of natura and frequently appended id estdeus to make the meaning clear: natura understood as naturanaturans.10 Accordingly, Isidores instinctu naturae designates thedivine providential and directive force stimulating humanbehavior, and his choice of instinctus is doubly consistent withits traditional semantic use and connotations, in that it refers toan urge conned to human beings and one that is divine inorigin.

This occurrence of instinctu naturae is unique in the Etymolo-gies.11 Isidore does use instinctus twice more in that work, once inreference to the behavior of the partridge, which steals the eggs ofother birds and hatches them. This theft, however, fails of itspurpose when the hatchlings hear the call of their true parent andby a certain natural instinct (naturali quodam instinctu) return totheir natural mother.12 Although this locution may seem to belogically equivalent in meaning to instinctu naturae a subtle shifthas occurred and instinctus has been reied, made substantive andgiven the status of an agent, contrary to its auxilary force ininstinctu naturae. It is also clear that by 636 instinctus is being usedto describe animal behavior.

In selecting the expression instinctu naturae Isidore may havebeen inuenced by Ciceros well-known denition of the naturallaw as that which is not born of opinion, but implanted in us by akind of innate force (quaedam innata vis).13 As Cicero opposed hisinnata vis to human opinion, Isidore opposed his instinctu naturaeto human ordinance or enactment; it is clear that both forces,imprecisely dened as they may be, are contrasted with discursivereason and its products. Also, although it is anachronistic to use the

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 law of nature is somethingwhich 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.

word instinct to identify Ulpians views, and although it is clearthat Isidores instinctu naturae does not refer to animal behavior, itis more important to note that neither of their denitions of thenatural law speaks directly of mans reason. Quite the contrary,although Isidore does add examples of the law that do involverational behavior.

The three illustrative examples cited by Ulpian and repeated byIsidore are human/animal actions usually attributed to non-rational automatic self and species preservative drives. It is nosurprise, considering that Isidore was probably the most readauthor of the early Middle Ages,14 that these three examples, and

providential desire to endure implanted in all things whichoperates in a realm extrinsic to reason, will and consciousness. ForBoethius as for Ulpian the term instinctu naturae was as yetunavailable to express such an idea because its range of referencewas conned to mankind. Interestingly enough, and appropriatelyillustrative of the argument of this essay, when by 1593 it hadbecome available in the vernacular, it was used. In that year QueenElizabeth became the rst translator of the Consolation ofPhilosophy into English to choose to express Boethiuss ex naturaliintentione as by natural instinct.17

Boethius did, however, use instinctus quodam naturali in aninuential passage in his De institutione musica. There, in theunique occurrence of instinctus in thework,18 in a context that wellillustrates the traditional use of the word in classical Latin, he isengaged in summarizing his argument that it is better and noblerto use reason to study and understand music than to compose and

R.A. Greene /History of European Ideas 36 (2010) 361374 363the pivotal expressions quod natura omnia animalia docuit andinstinctu naturae that Ulpian and Isidore attached to them, arewoven into the commentaries of civilian and canon lawyers in thetwelfth century, sometimes in arbitrary and perplexing ways. Themethodology of these scholastic writers presupposed an inheri-tance of textswhichwere all authoritative butwere discordant andsometimes contradictory.15 The authority of these denitions andexamples earned them an imprimatur and thus an inuential placein a medieval debate that was moving the denition of the naturallaw towards mans rational participation in the eternal law. Theircollective effect was to preserve the idea that forces other thandiscursive reason played a part in discovering the natural lawthathumankind shared with animals the experience of impulsive andbenecial appetitive urges to self and species preservativebehavior, that these were, in some indenable way, part of thenatural law, and that human recognition and acknowledgement ofthe natural law was not the result of ratiocination alone, but of aputatively divine instinct.

Boethius and Hilary

A century before Isidore introduced the term instinctu naturaeinto the denition of the natural law an even more widelyinuential medieval writer had used a similar term to express asimilar idea. Boethius, who was Justinians contemporary, hasfrequently been called the last Roman, and his language remainedthe language of Cicero. So, in those passages in the Consolation ofPhilosophywhere Philosophy leads Boethius to an understanding ofthe inner teleological force that stimulates the self-preserving andself-perfecting behavior of animate and inanimate beings alike shedesignates it as naturalis intentio. All these same things, she says,hasten towards the good by their natural exertion. She carefullyseparates and distinguishes the voluntary motions of the rationaland intelligent soul from this intention of nature. The latteroperates when we digest food without any conscious thought orwhen we draw breath in our sleep without knowing it: For noteven in living things does the love of survival proceed from the actsof will of the soul, but from natural principles. And she draws theconclusion: so this love of self proceeds not from a motion of thesoul but from an exertion of nature [ex naturali intentione]; forprovidence has given her creatures this most important cause ofenduring, that by their nature they desire to endure so far as theycan.16 Boethius thus attributes self-preservative impulses to a

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.perform it, which are servile occupations. He concludes, withrespect to composition, that the second class of those practicingmusic is that of the poets, a class led to song not so much bythought and reason as by a certain natural instinct.19 This passagehas been cited as an important, if paradoxical, source of the idea ofmusical genius. The echoes of its reference to natural instinct innumerous Renaissance treatises on music provide an illuminatingparallel to the semantic history summarized in this essay.20

Ironically, Boethiuss intention was to deprecate the rationallyinexplicable and mysterious (quodam) force that he dismissivelyconceded was responsible for the composition of music. By thetime of the Renaissance instinctu naturae was still an integralcomponent of discussions about musical composition, butHumanism and the inuences described in this essay had reversedits Boethian connotation so that it served to express admiration forthe indenable artistic inspiration of individual genius thattranscended reason.

There is also another early and inuential use of the expressioninstinctu naturaewhere natura clearly refers to human nature onlyandwhere the natural law is not at issue. Hilary of Poitiers wrote asa theologian and moralist, as is evident in his commentary on thePsalms (ca 350), Psalm i, where he condemned as reprehensibleand sinful human conduct that he attributed to naturae nostraeinstinctus. He deplored the sins of the ungodly, the greedy, thedrunken, the brawlers, the wanton, the proud hypocrites, liars,plunderers, and asserts that No doubt we are urged towards thesesins by the promptings of our natural instinct.21 It is no surprise tond St. Augustine applauding this judgment and giving it greatercurrency by quoting and discussing it at some length in his treatiseContra Julianum.22 The dominant semantic template for instinctus,when used to designate a force experienced by mankind, is,accordingly, a divine ormalign, frequently demonic, stimulus, hereillustrated by Isidores use and Hilarys.

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 ensured that Isidoresdenition was given renewed life as well as pervasive and enduringimpact a half millennium after it was written by being quotedverbatiminDistinction IofGratiansDecretumof1140, a compilationthat became the standard textbook in the eld of WesternChristian ecclesiastical law.23 Quotations from Book V of IsidoresEtymologies, in fact, dominate the rst Distinction of this work,beginning with its rst sentence, which repeats Isidores division ofall ordinances intodivine orhuman. There is evenanobvious echoofthe basic assertion of Isidores denition, that the law of nature isheld everywhere by instinct of nature, not because of anyenactment, in that subtitle of theDecretum, one ofmany, apparentlyfavoredbyGratian: ConcerningtheLawofNatureandEnactment.24

Gratians intent was to produce a Harmony of DiscordantCanons, as the full title of the Decretum indicated. The ambiguityand seeming self-contradiction of Isidores denition certainlyqualied it for inclusion and explication. Accordingly, the seventh

both classical and biblical sources, and they incorporated thecontemporary revival of some philosophical and psychologicaltheories that appeared to contribute to an understanding of thenatural law. So Ciceros innata vis, and St Pauls assertion in Romansii: 1415 that the Gentiles do by nature the things contained in thelaw. . .which shew[s] the work of the law written in their hearts, aswell as the Roman concept of aequitas naturalis, and the theory of aratio superior inherited fromSt.Augustine,28werepart of the contextinwhich Isidores central afrmationabout the instinctu naturaewasinterpreted and understood. Most important of all was St Jeromes

R.A. Greene /History of European Ideas 36 (2010) 361374364capitulum of Distinction I of the work is entitled: What NaturalLaw Is, and it consists of a exact repetition of Isidores denition.25

Surprisingly, however, Gratian did not comment on it, preferring tofurther complicate matters by rst adding another denition of hisown, that the natural lawwas what is contained in the Law and theGospel, and by citing the golden rule, as expressed by Christ inMatthew vii:12, as an illustration and encapsulation of it.

By asserting, in the rst sentence of his rst dictum, and of theDecretum, that The human race is ruled by two things, namely,natural law and usages, and by conrming the point moreexplicitly in Distinction V: the natural law began with rationalcreatures themselves,26 Gratian clearly endorsed Isidores restric-tion of the natural law to human beings, thus leaving no room forUlpians idea that it was common to all animals. In so doing, andby quoting without qualication or comment Isidores denition,which included Ulpians examples of animal behavior,27 Gratianperpetuated its puzzling internal contradictions in the Decretumfor the better part of a century, from 1140 to 1215, until the adventof the glossa ordinaria.

It was during those 75 years that canonist glosses andcommentaries on the Decretum moved increasingly to acceptand explore the implications of Gratians view that the natural lawbegan with the appearance of rational creatures. In doing so,however, they had to address and somehow solve the enigma thatwas Isidores denition, now thrice legitimized, by Ulpian, byIsidore, and by Gratian. They wrote within a context that valuedand included the recollection of certain cultural touchstones from

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 theword 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 law often seems to be identiedwith 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.interpretationof theeagle inEzekiels inauguralvisionas synderesis,the spark of conscience and of mans original moral integrity thathad survived the fall. Jeromes passagewascitedbyPeterLombard inhis inuential Sentences of 1252, where he conates Augustine withJerome in his misquotation of Jeromes scintilla conscientae assuperior scintilla rationis.29 Synderesis came to be knownas the purepart of conscience, and the source of recognition of the practicalprinciples of the moral order. The congruence between synderesisand the natural law led eventually to their assimilation, as onescholar has put it, in the late twelfth century.30

It was in the context of this inherited and revived wisdom thatsome commentators such as Simon of Bisegnano discovered adouble signicance in Isidores instinctu naturae and cut theGordian knot that was Isidores confused denition. Through thesimple expedient of pointing out that Isidores natura could refer toeithermans generic nature as an animal or to his specic nature asa rational animal Simon saved the appearances by retainingIsidores instinctu for both concepts and introducing the apparentlyparadoxical idea of an instinctus naturae arising from thedistinguishing characteristic of human nature, reason, at the heartof the natural law. The adoption and repetition of this solution byJohannes Teutonicus in the glossa ordinaria to theDecretum of 1215ensured its survival.

Relying on and summarizing the responses of earlier scholiasts,Johannes begins his note on the words natural law in Isidoresdenition by advancing four scholastic distinctions based on thepremise that the word natura in the expression natural law hasmany meanings.

To understand this, note that theword nature is used inmanyways. Sometimes naturemeans a force residing in things so thatlike propagates like. Second, sometimes nature means thestimulus or instinct of nature proceeding from physical desirein 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 ofnature proceeding from reason; law proceeding from nature inthis sense is called natural equity. According to this law ofnature, all things are called common, that is, to be shared intime of necessity. D. 47 c.8. Fourth, the law of nature meansnatural 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 naturallaw, and according to this law, too, all things are calledcommon, that is, to be shared.31

Of the various meanings of natura proposed here the rst is aperfunctory reminder of a force ensuring that like propagates like,

28 See R.Mulligan, Ratio Superior and Ratio Inferior: theHistorical 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

Ockham andDenys 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 law by 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 naturanaturans, the essential ground of being and support of all creation.Both of the next two meanings preserve and endorse Isidoresintroduction of the ancillary word instinctu into the denition ofthe natural law, probably because in these explications of natura astimulus or urge is experienced by living creatures. Johannes solvesthe dilemma of Isidores denition, at least to his own satisfaction,by the simple expedient of expanding the meaning of instinctunaturae to cover both an instinct of nature common to men andanimals, proceeding from physical desire and intent on self and

from his De inventione. In the Ethica he declares that Ciceroscertain innate impulse (quaedam innata vis) may be understoodin a double sense, according to its application to the genus (animal)or the species (man). For the rst he is content to continue

R.A. Greene /History of European Ideas 36 (2010) 361374 365species preservation, as well as a second instinct of nature,proceeding paradoxically from reason, hence peculiar to humanbeings, and identied with the Roman aequitas naturalis. Ulpiansdenition 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 naturaclaries the meaning of the instinctus naturae he attributes tohumanity by asserting that it proceeds from reason, and byidentifying it with equity. The aequitas naturalis that Johannesrefers to was linked by Roman lawyers with the notion of lexnaturae, the command of an inner voice through which speaks theratio of the natura rerum immanent in things (hence it isoften. . .connected with naturalis ratio). Identied as it is withequity, Isidores instinctu naturae is therefore a moral impulsealtruistically concerned to make justice and fairness generallyprevail by going beyond the formal sources of law . . . to reach for ahigher, enduring, normative plane.32 Given the primarymeaning ofinstinctus (a stimulus from a divine or demonic source) it also seemsclear that this instinctus naturae is not the product of discursivereason since it transcends the law. Finally, we may conclude thatJohannes lengthynote onnatura, occurring in the rstDistinction ofthis inuential legal textbook, was a major contribution toconrming instinctu naturae in natural law parlance.33

Albert the Great

It was only 30 years after the glossa ordinaria was added to theDecretum that Albertus Magnus began his treatment of the naturallaw by scrutinizing and largely rejecting its subtle analysis ofIsidores denition. In dealing with De jure et lege naturali in thefth section of his treatise De bono (12461248) he summarizesthe denitions of Johannes Teutonicus just quoted, criticizes theirlack of art and reason and simplies matters by offering a singleshort humanistic statement dening the natural law: For the jusnaturae is nothing else but the law of reason or debitum, accordingto which natura est ratio.34 He ignores Ulpians idea that thenatural law is common to men and animals.

Despite his dismissal of Ulpian, however, Albert nds a place forthe language of Cicero and Isidore in his understanding of thenatural law, and for what their language strove to express: that thenatural law was rooted in a mysterious innate prompting.Although his reiterated emphasis in discussing the natural lawis upon human rationality as the gauge and dening characteristicof that law, he begins his consideration of the subject in both theDebono and the Ethica by directing attention to Ciceros denition

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.Johannes use of instinctu naturae to designate the drives of animalsand to quote Ulpian (conjunctio maris et foeminae, liberorumprocreatio) to provide examples of the resulting behavior, but heemphasizes that this behavior cannot be termed just but is simplyproportionate to the genus animal.35

But Albert also follows the lead of Johannes in freeing Isidoresinstinctu naturae from the ties that had bound and restricted it toUlpians quod natura omnia animalia docuit. He also understandsthe expression to mean instinctu (humanae) naturae, or the instinctof the human species, and since natura est ratio it becomessynonymous with instinctu rationis and instinctu conscientiae.

In the rst question of the De justitia he begins once again byendorsing Ciceros denition of the natural law as a certain innateimpulse and surrounds it in his responsiowith the roster of by nowtraditional expressions, concepts and quotations that had becomeassociated with the denition of the natural law. So he explains jusnaturae, in its strictest denition, in terms of Basils naturalejudicatorum rationis, which he identies with synderesisthehuman capacity to recognize at once the truth of the primaryprinciples of practical morality when their terms are understood.Predictably he brings in Romans ii:15, and quotes the Old (Tobitiv:16) and the New Testament (Matthew vii:12) versions of thegolden rule as examples of such principles. Albert has beencredited with introducing his own qualication of this traditionalinnatism by insisting on the necessity of a complementaryacquired knowledge of the terms of the moral principles of thenatural law.36 He accepts the view that the practical intellect has aconnate implanted habit of scientia juris, but he argues that it wasan Aristotelian tabula rasa with respect to such necessarilyacquired knowledge.

It is in this context that Albert directs explicit and thoughtfulattention for the rst time to the connotations of Isidores terminstinctu naturae itself. An objection may be raised, he begins:

because it is said that this law is held everywhere by aninstinct of nature and not by any other enactment. [But] it doesnot seem to be held by an instinct of nature. For an instinct ofnature is nothing other than [a drive] towards one thing, andnot towards its opposite Accordingly, it appears that in thenatural law there is no instinct towards the opposite. And fromthis follow two inconsistencies. The rst is that whatevernatural law commands would not be difcult; and at [naturallaw] would always be of necessity because it is necessary tofulll the things that arise from an instinct of nature.37

In his reply Albert admits that this objection would be valid ifnature here referred to a natural body moving according to itsnature. He is clearly thinking of the blind or closed instincts of thebehavior of beasts. In this case, however:

nature is posited as the nature of a human being who has beenordained for good behavior, in asmuch as he is human. This is sobecause [elsewhere] we proved the following: that it is properfor a human being that he determine what is honorable anddishonorable, praiseworthy and to be scorned in life. and thatthe natural law is from an instinct of nature of this sort, and thatit urges toward the difcult and the good, and it does not urge

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], butrather toward that which falls under the will which is formedaccording to nature toward the goodbut a will which can,nevertheless, be deected toward the opposite.38

A second objection raises the incompatibility of stipulating auniform instinct of nature as the basis of the natural law with thefact that the moral decisions and actions of men are diverse andvariable. Alberts reply relies on the customary distinction drawn

Second, Pecocks main purpose in writing his many books wasessentially pastoral, a determined effort to explain to the laity inthe vernacular that the moral lawe of kinde or moral philsophie. . .is grounded by doom of mannis resoun,41 and that recognitionof that fact was essential both to a moral life and to anunderstanding of the Christian religion. This self-imposedmission,which included confronting and confuting the errors of theLollards, dominated his thinking. The result was that his bookscontain the rst extended summary in English of traditionalmedieval teaching about the natural law, conceived and expressedin an idiosyncratic way and specically aimed at a popularaudience.

Third, despite the absence of Isidores instinct of nature fromPecocks explication of the natural law, it is clear that he acceptsthe scholastic view that the foundation of moral knowledge and ofthe lawe of kinde is written in human nature and is accordinglynatural and instinctive. His commitment to this view leads hismodern biographer to say that by the doomof resound hemeansthe natural law based upon the innate moral feeling of man. . . an

R.A. Greene /History of European Ideas 36 (2010) 361374366between the inerrant recognition of general moral principles bythe spark of conscience, synderesis, and the fallible process ofdiscursive reason that brings forward the evidence of particularcircumstances in theminor premise of the syllogism of conscience.It should be noted that his term forwhat came to be called the purepart of conscience, synderesis, is instinctus conscientiae.

[In response to the objection] this should be said that in truththere is the same instinct of this sort among all people. But hereit is necessary to recall that [elsewhere] it was stated that theinstinct of conscience is, to be sure, according to the universalsof law but that reason which looks to particulars plays a rolebefore [conscience] gives an opinion about doing or not doingsomething. . . and since these factors are not the same foreverybody, it follows that there is not one and the same way ofliving for everybody (see footnote 38).

So Albert repeats the terminology and thinking of the canonlawyers inmaintaining a place for theword instinctus, and for somenotion of instinctive human response, in discussions of the naturallaw even if that law was not common to humans and beasts. Inaddition, he uses instinctu rationis or instinctu conscientiae todesignate a concept identical with what synderesis had come tomean: the necessary, immediate and non-deliberative experienceof basic behavioral impulses, and the subsequent recognition ofthem as indicative of the universalmoral imperatives of the naturallaw. Complementing such recognition discursive reason adducesits judgments of the variable particulars of conduct which are theminor premises in syllogistic reasoning in moral matters.

Bishop Reginald Pecock (13951460)

Bishop Reginald Pecocks six surviving books have been calledan eccentric corpus of simplied theology by one historian, adesignation accurate but insufcient.39 He appears to have usedthe expression natural instinct only once in those books, and eventhen he is reporting the language of others. It is also true that hispossible inuence was severely curtailed by his condemnation forheresy in 1457, and by the consequent burning and suppression ofhis numerous writings.

Nevertheless, he deserves a place in this narrative for threereasons. First, his use of instinct in 1454 to mean the faculty ofanimals to perceive something by the intellect, intuitive power, iscited by the Middle English Dictionary as the earliest example of asecondmeaning of instinct, after incitement, urging, instigation.40

38 A. Magnus, Opera Omnia (1951), 267.39 J.I. Catto, Theology afterWyclifsm, 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.instinctive moral law, and an historian of late medieval Englishlaw to conclude that for Pecock the rules of natural law areaccessible to humankind through the human reason, throughrevelation, and through instinct.42

It is in chapter viii of The Folower to the Donet, in the context ofhis exposition of the teachings of scholastic psychology andanthropology about the differing natures of the souls of humanbeings and beasts, that he is led into a three and a half page accountof his disagreement with certain unidentied opponents over thequestion of how beasts know. Observing the behavior of hounds,he argues that they learn from being beaten, and modify theirsubsequent behavior accordingly; they can also calculate that athwart course across a eld will improve their chances of catchinga hare. Such observations, and tales of the wiles of apes and foxes,have convinced him of the probability that the higher beasts canrecognize premises, and form propositions, arguments andsyllogisms.43 On the other hand, [S]umme philesofris, hisopponents, assert that beasts know bi natural instinct. . .or bisymple prick and movyng of kynde without argument.44 Pecockthen asks how his opponents can assume or allege that heattributes greater wisdom to beasts because he asserts that theyachieve knowledge bi argument of silogisme, when these sameopponents agree with him about the content, extent and certaintyof beasts knowledge. After all, his opponents acknowledge thatGod does not know any truths by argument, and yet they do notconsider God less wise than creatures whiche knowen he sametrou is bi argumentis whiche god knowi without argumentis.

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 thewords natural instinct here todesignate the non-discursive (without argument) knowledge ofbeasts, the nal words of the denition of this use of instinct in theMiddle English Dictionary (intuitive power) appear to generalizeand extend its range of reference to include any intellectualperceptions, including those of human beings. The Dictionaryssubstitution of animals for Pecocks reiterated beestis in itsdenition points in the same direction.

One consequence of Pecocks indebtedness to Thomas Aquinaswas his adoption of the Thomistic substitute for Isidores instinctunaturae. In his classic explanation of the three stages or tendenciesin human participation in the natural law Thomas prefers to speak

I will put my law in their inward parts, and write it in their hearts.He incorporates it into his own manner of speaking of the naturallaw, referring to the inward Scripture of the before spoken lawe ofkinde writen bi God him silf in mannis soule, whanne he mademannis soule to his ymage and liknes. He leaves no doubt that

R.A. Greene /History of European Ideas 36 (2010) 361374 367of inclinations (inclinatio) rather than instincts.45 In Pecockssummary of the same tripartite division in The Reule of ChrystenReligioun he speaks once of the natural inclinacions of non-livingthings, uses appetite to describe the stimulus of e bestial lawe ofkynde, and implies that human beings experience a naturaltendency to follow and fulll is doom of resoun [which] is ilklawe which is callid lawe of kinde [and] lawe of conscience. . .which is propre toman as he isman. His conclusion to this passageis a populace adapted, simplied version of Thomas passage:

er ben iij lawis of kynde in isworld: oon propre toman,whichis forto folewe resoun in his wil, e secunde propre to beestis,which is to folewe in her appetite e sensual wittis. . .and ethridde is comoun to alle plauntis and to oere ingis not living,and at is to folewe and fullle e pricking and moving of herunknowing kinde.46

In addition, in the beginning of the rst chapter of this sametreatise Pecock has introduced the argument that in allenaciouns. . . y fynde at ech tunge, ech lond, ech sect hadde aninclynacioun and o at an actual bisynes forto fynde to hem a god.He adds that this human tendency to seek and believe in a god as anatural inclinacioun is never had in veyn and for nouat, makingclear 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 naturallaw is innate or instinctive. He has no doubt about human ability tofynde out al i lawe of kinde bi natural witt and natural liat whichou lord god hast sett in her soulis, despite the derking of resounbi fal fro ynnocencie into synne.48

The pervasive exaltation of doom of resound and lawe ofkinde at the expense of revelation in his writings49 leads him toidentify them with e largist book of autorite at ever god made,and to contrast that book strikingly with Scripture itself: [E]nypoint or eny governaunce of the seide lawe of kinde. . . is moreverrili writen in the book ofmannis soule than in the outward bookof parchemyn or of velym [Holi Scripture].50

He borrows this familiar inscription metaphor from Jeremiahxxxi:33 and Hebrews viii:10: But this shall be the covenant that Ishall makewith the house of Israel; after those days, saith the Lord,

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.Goddis hool lawe to man in erthe, [including] Alle tho govern-auncis, trouthis, and vertues. . . [are] groundid. . .in the inward bookligging in mannis soule, which is there the writing of lawe of kindeand of doom of resoun and moral philsophie.51

What is it that has been written and grounded in the inwardbook lying in mans soul? Pecocks answer repeats familiarscholastic epistemology. The intellect is a knowyng wherebi weknowen e hiaest and openest treuis of alle oire treuis, that is,those truths called principlis or begynnyngis, which are soevydent in it silf to resoun at resoun needi noon oir openerknowable trou to prove it bi. These self-evident axiomatic truthsare both speculative and practical or prudential. Examples includethe practical principle of synderesis, a term that Pecock does notuse: Al good is to be louyd; Al yvel is to be ed and forsaken, andthe basic truths of speculative knowledge such as Ech hool bodi isgrettir an is his parti. The human intellects recognition of theseself-evident axioms is one example of those natural virtues(powers) exercised by alle oire inges of kynde. . .erfore ei benpowers aouun kyndeli into a ing folewyngli vpon e natural beingof e same ing as for her foundement or ground. Accordingly, thefoundational principles of human knowledge, speculative andpractical, are written in mans soul and are known, as Green andDoe conclude, by the instinct of nature.52

Christopher St German (14601540)

Christopher St German published his rst book anonymously in1528, as he approached his seventh decade. It took the form of aLatin Dialogue between a Doctor of divinity and a student of thecommon law, and was the rst section of a work that came to beknown by its popular translated title, Doctor and Student. Internalevidence suggests, but does not conrm, that he may also havebeen the author of both versions of the English translations andrevision of this dialogue that were published between 1530 and1532. It seems clear that he wrote both the secunde dialogue of1530 and two sets of additional chapters in English, whichcompleted the work.53

The anonymity of Doctor and Student, and its piecemealpublication, did not affect its subsequent popularity. Its inuence,however, was exerted primarily by the frequent republication ofthe English translation of the rst dialogue, alone or together withthe second, at least nineteen times from 1530 to 1660, when theLatin original was being published only once, in 1604. The workcontinues to puzzle and intrigue scholars today, leading one to callit such an odd book and an enigma.54

Fortunately, the evidence provided byDoctor and Student for theassimilation and endurance of instinctu naturae in the discussion ofthe natural law can be identied without attempting to unlock allits secrets. In addition, there is some general agreement about StGermans intentions in writing. That agreement concludes that heset out to establish that English law had exactly the samefoundations in divine law as the Canon Law [and that it] took dueaccount of conscience and equity. Consequently, it was necessaryfor churchmen and ecclesiastical judges to know its contents inorder to be able to act conscientiously. The book is, then, a rst

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 thedisputed legitimacy of secular and spiritual jurisdictions.55

Establishing the foundations or principles and grounds ofEnglish common law led St German to draw upon the repository ofscholastic teaching on the origin, nature and scope of the varioustypes of law. His major sources were Aquinas, whom he nevermentions, and John Gerson, who is frequently acknowledged.56

Many of St Germans brief citations of familiar classical andChristian authorities, such as the Bible, Aristotle, Augustine,Jerome, the Decretum, and St John Damascene, are repeated fromAquinas and Gerson. The eight foundational chapters of Doctor andStudent consist in great part of such extracts and quotations from

kind; they nourish their young and their offspring by natural

instinct, and by nature fear what is contrary to their being; andaccording to John Gerson the natural law of animals is that law

which every animal has unless impeded or disordered. But of thislawe it is not oure intent to treate at this tyme. The lawe ofnature specyally consyderyd: whiche is also called the lawe of[reason] pertayneth oonly to creatures reasonable that is manwhiche is create to the Ymage of god. And this law ought to bekept 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

R.A. Greene /History of European Ideas 36 (2010) 361374368this tradition and are, as a result, essentially derivative. Thesechapters are the rst four of the work, which treat the eternal law,the law of reason or the law of nature, the law of god and the law ofman, and four later chapters (xiiixvi) which dene and explainsynderesis, reason, conscience and equity.

The editorial work of identifying all of St Germans sources wasnot undertaken by his modern editor on the plea that completing itwould have delayed publication of the text indenitely. He doesconrm, however, with examples, that St German relies primarilyon Aquinas and Gerson, and that his denitions are indeedderivative in being conventional enough and commonplace.57 Ithas also been observed that St German was not truly familiarwith the canonists he occasionally quotes, and that although heknew Gersons works at rst hand his was not the knowledgeacquired by an expert. 58 These opinions about St Germansknowledge of his sources are conrmed by his surprisingly casualuse of them. In one striking example, J.H. Burns has pointed outthat St Germans denition of equity quotes and conates threesentences (fty-eight words) from Gerson with a one hundred andtwenty-four word passage quoted from Aquinas, without ac-knowledging either author, a conation generally unnoticed bymodern commentators.59

St Germans indebtedness to this scholastic tradition is wellexemplied by his repetition of the language and ideas of Ulpian,Isidore, the Decretum, its gloss, and Albert, all of which may bediscerned in a running palimpsest beneath the denition of thenatural law that begins the second chapter of Doctor and Student.The presence of this language is forecast in the echo of theDecretum evident in the title of this chapter: Of the lawe of resonthe whiche by Doctouris is called the lawe of nature of reasonablecreature.

Doctoure) Fyrste it is to be understande that the law of naturemaye be considered in twomaners that is to saye generally andspecyally when it is consyderyd generally then it is referryd toall creatures as well reasonable and unreasonable for allunreasonable creatureswhen unimpeded and not disordered lyveunder a certeyne rewle to them given by nature necessarye forthem to the conservacyon of thyr beynge They preserve their

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 claim that 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.among all men so that there is a natural instinct present in all men

to observe it.60

Repeating Alberts earlier distinction between general andspecial consideration of the natural law allows St German to invokeIsidores instinctu naturae twice, once as the law applies to allcreatures, reasonable and unreasonable, and once as it isestablished in, and pertains only to creatures reasonable, withthe result that there is an instinctus communis. . .present in all mento observe it.61 St Germans inclusion of both Isidores instinctunaturae and its redeployment into a reason based instinctuscommunis by the glossa ordinaria had only a modest inuence onlater thinkers, since these assertions were excised from thefrequently republished and inuential English translations ofDoctor and Student, as the italics in the quotation indicate.62 Whatthis paragraph does establish, however, is that this language andthese ideas had become an integral part of the inherited furnish-ings and stock-in trade of natural law discourse in England in theearly sixteenth century. The paragraph continues in a mannertypical of St German in naming John Gerson twice as a sourcewhilesilently quoting Aquinas well-known denition of the natural law,and adopting his term inclinatio to designate mans tendenciestowards the good of his nature.63

In fact, at least four of the foundational chapters of Doctor andStudent, those treating the eternal law, the natural law, synderesisand reason, are an admirable proving ground to illustrate how theconnotations of Isidores phrase instinctu naturae a divineimpulse of the mind to recognize and observe the law of nature,distinguished from the discursive process of enactment oncethey were attached by the glossa ordinaria to an instinctproceeding from reason, were integrated within scholasticdiscourse about the natural law and transmitted to early modernEngland.

What is distinctive in St Germans summary of this scholasticinheritance is his noting, twice, that the lerynd in the lawe ofEnglande call the natural law the law of reason.64 That change ofname reects the centrality of reason, understood as both thedivine transcendent order of the universe (the ryghtwyseIugement of the fyrste reason [whiche is the law eternall.]),65

and the power of the human intellect, to St Germans presentationof the natural law.With that exception, these four chapters employtraditional biblical and patristic references, maxims and meta-phors, as well as the language of medieval epistemology and

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 humanreason of the natural law.

The reason of the wisdom of God is the gouernour of all dedes& mouvynges that be found in any creature. This fyrste reason isthe prime right reason and the law eternal. It is the source of alother lawes, of justice, of right and title, of truth and equity.[C]reate to the Ymage of god, humanity exercises its reason todiscover the law of nature of reasonable creature, now called thelaw of reason, through participation or knowledge of eternal law.Because the natural law is inscribed and wryten in the herte of allhuman beings, and because it is this law which natural reason hasestablished among all men so that there is a common instinct[instinctus communis] present in all men to observe it, it isimmutable and universal, even though man and women differ in

scholastic inheritance. Inexplicably, the translations of Doctor andStudent eliminate a signicant proportion of this encapsulation.

Assimilation

Both popular and professional religious writing in England andScotland in the sixteenth and seventeenth centuries repeat themedieval association of instinct of nature with the natural law thathas been traced above. That inherited and traditional association isformally recognized by Edward Waterhouse in 1663, in a

R.A. Greene /History of European Ideas 36 (2010) 361374 369their capacity to discern and follow it.66

The naturall light of understandynge reects the light of theLords countenance in Psalm iv:6, which is to say that itparticipates in the light of truth, and is thus made lyke to thedygnyte of aungellys, according to Dionysius the Areopagite.While the spark of reason is a mere remnant of humanitysoriginal moral integrity, it is nevertheless a fragmentaryparticipation in intelligence, earning it the designation ofsynderesis, which St. German equates with Augustines higherparte of reason.67 These ve gures of speech are given anepistemological basiswhen St Germanmoves from the authority ofthe Bible and Dionysius, Jerome and Augustine, to the psychologi-cal functioning of the human intellect.

When the intellect directly apprehends and assents to thosepractical and speculative principles that are the foundation of boththe natural law and all knowledge, once their terms areunderstood, it is known as synderesis. This activity is pre-deliberative and pre-discursive and it never errs. This manner ofknowing is also characteristic of angelic nature, to understandewithout serchynge of reason, and to that nature man is Joyned bysinderesis. Discursive reason, on the contrary, proceeds byratiocination, a logical and consecutive process from one thingthat is understood to another. . .from premise to conclusion.Reason in this sense is sometimes right, and sometimes errs. Thisdistinctive activity of synderesis leads St German to note that someidentify it with the natural law: And therefore sinderesis is calledby somemen the law of reason for it mynystreth the pryncyples ofthe lawe of reason, the whiche be in every man by nature.68

To recapitulate: introduced by Isidore, conrmed and givenstatus by prominent quotation in the Decretum, linked with reasonin the glossa ordinaria, the idea that human awareness of theprinciples of the natural law arose from a divine instinct that waspre-deliberative and universal found subsequent corroboration inbiblical quotations, patristic citations, identication with Jeromesspark of conscience, synderesis, and the analysis of scholasticpsychology. St Germans chapters are the rst and last attempt inEnglish in the early modern period to encapsulate and endorse this

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.commentary on Sir John Fortescues De laudibus legum Angliae:This Law of Nature some of the learned do make fourfold, LexMosaica, instinctus naturae, jus gentium, jus pretorium. . .this Law. . .being the instinct of humane nature, and a donary of Gods, thenatura naturans to the natura naturata in man.69 Instinct of nature,natural instinct, and instinct alone, are used indiscriminately todesignate the source of natural, pre-deliberative, non-discursiveknowledge by humankind of the principles of good and evil, in theabsence of an obsolescent synderesis.

Characteristic of this linguistic habit is the identication, bysynonymous and stylistic pairing, of instinct with the law of, andespecially with the metaphoric light of, nature, expressed as thelaw of reason, the light of reason, rational instinct, the light of themind, natural light, imprinted light, implanted notion, naturalreason and right reason. For example, Thomas Wilsons A ChristianDictionarie of 1612, the rst dictionary of the Bible in English,denes law in terms that recall synderesis: Natural instinct andlight of reason, commanding honest things & forbidding thecontrary; or the Law of Nature written in a mans heart Romii.14.70

Writers sought a mode of expression that would allow them topresent the instinct or light of nature as participant in the Reasonthat ordered the universe, yet operative prediscursively in humanminds. So Sir James Stewart speaks of that divine Impress andrational Instinct, whereby the very course of Nature is upholden,and John Hartcliffe summarizes the point in 1691: For by naturalinstinct we know what we ought to do, antecedent to all Reasonand Discourse.71

Consequently, it was at the prompting of this rational instinct orlight of nature that humanity also acknowledged the existence ofGod, the self-evident theoretical and practical principles ofknowledge, the necessity of justice, the claims of equity, thedictates of conscience and the authority of right reason. Examplesabound in the period and emerge from writers of various religiousconvictions. The Jesuit priest, Robert Parsons, declares in 1590:Thys then is the Morall Phylosophers rst argument: theinclination of all people to believe a Godhead: the instinct ofnature to confess it,72 and he is echoed by the clergyman AndrewWillet in 1611, who attributes the Gentiles knowledge of God andthe natural law to that naturall instinct and light of the mind.73 In1675 Isaac Barrow, mathematician and theologian, explains: Thatmen should thus conspire in opinion . . .was byway of natural lightor instinct (as the rst most evident principles of science areconceived to be, or as themost effectual propensions towards goodare) implanted in mans nature.74 George Keith, a Quaker, nds in

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 thatGod hath put into mens Hearts,75 and themost signicant Englishtheologian of his age, the Puritan William Perkins, in his ADiscourse Of Conscience, 1596, says that the laws of common equityare such as are made according to the law or instinct of naturecommon to all men.76

The most striking and revealing substitution of the demoticEnglish word instinct for the Latin synderesis appears in FrancisBacons Advancement of Learning, 1605. He explains that a greatpart of themoral law is not ascertainable by the light of nature, and

sympathies, whereof we can give no account,. . .but by downe rightmateriall qualities.81 Such criticisms of instinct, including this ofHobbes, coming as it does at the end of a treatise on bodies, aredirected at the use of instinct as a stand-alone term to mean anunknown hypostasized force that purported to explain theirbehavior, a usage found as early as Isidores Etymologies. Suchwords were for Hobbes disguises for ignorance. As he said inLeviathan, they signify neither the agent that produceth them[effects], nor the operation bywhich they are produced.82 Isidoresinstinctu naturae [id est Deus], and its later identication with a

R.A. Greene /History of European Ideas 36 (2010) 361374370asks: how then is it that man is saide to have by the light and laweof Nature some Notions, and conceits of vertue and vice, justice &wrong, good and evill? The answer lies in the fact that the light ofnature is used in two sensesone springing from reason, sense,induction and argument: The other, that which is imprinted uponthe spirit of Man by an inward Instinct, according to the lawe ofconscience, which is a sparkle of the puritie of his rst Estate: inwhich later sense onely he is participant of some light, anddiscerning: touching the perfection of the Morall lawe: but how?Sufcient to check the vice, but not to informe the dutie.77 In thishalf sentence Bacon deliberately repeats three of the four centralterms in Jeromes ancient commentary on the eagle in Ezekielsvision: the biblical spirit of man, conscience, and sparkle, whilesubstituting inward instinct for synderesis.78 Bacon does not omitthe Calvinist caveat that frequently accompanies and limits suchendorsements of the light of nature.

Finally, Thomas Hall, commenting on 1 Corinthians xi: 14 in1654 (Doth not even nature itself teach you), joins instinct andright reason: by nature here is meant, the light and dictate of rightreason in the understanding, informing men by its commonnotions 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 ThomasHobbesmany Latin and English works, and then only to be included in twolists of insignicant words and propositions scornfully dismissedfrom serious discourse. The rst list comes at the conclusion of hisearly work, De Corpore, drafted in the 1640s and eventuallypublished in Latin in 1655, and in English in 1656. It was the rstsection of the three section Elementorum Philosophiae, and thesecond section of that work to be published, after De Cive; it dealswith both metaphysics and physics, the movement of bodies.Hobbes conclusion proposes a simple test for explanatoryhypotheses other than his ownthat they be conceivable. Thistest rules out of court, in his opinion, those who say any thingmaybe moved or produced by it self, by Species, by its own Power, bySubstantial Forms, by Incorporeal Substances, by Instinct, byAntiperistasis, by Antipathy, Sympathy, Occult Quality, and otherempty words of Schoolmen.80

Hobbeswas certainly not the rst to reject such emptywords inthe explanation of physical effects, nor the rst to indict instinct asone of them. His friend Kenelm Digby had called in 1644 for effectsto be explained not by secret instincts, and antipathies and

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.rational instinct that recognizes intuitively the basic theoreticaland practical principles of ratiocination, does not seem to be in theminds of these critics. It is, however, inconceivable that Hobbeswould have been unaware or accepting of the regular appearanceof the expression instinct of nature in the description anddenition of the natural law, and his meticulous exclusion of itin that context, described below, conrms that view.

Hobbes second list includes instinct as the sole single word in aselection of twenty-seven two word expressions and fourteenpropositions. Hobbes quotes these sequentially from the argu-ments of Bishop John Bramhall at the end of his Questionsconcerning Necessity, Liberty and Chance, a summary of his longdebate with Bramhall83. His opponents terminology, says Hobbes,reects the study of School-divinity, and is the same languagewith that of the kingdom of darkness, that he had exposed anddenounced in Chapter XLVI of Leviathan. With the exception ofinstinct, this second list is replete with multi-word expressions ofscholastic philosophy, such as actus eliciti, actus imperati, moralefcacy, decient cause, simple act, and nunc stans,84 whichHobbes deniedwere terms of art, andmany of which hemocked asthe debate progressed.

Without venturing too far into the verbal thickets whereBramhall and Hobbes present their denitions and disagreementsabout spontaneity and deliberation, liberty of election andantecedent determination, volition and necessity85 the reader ofthis debate may discern that Bramhalls occasional use of theexpression instinct of nature carries all of the connotations itdisplayed in the natural law and religious writing of his era.Hobbes, on the other hand, prefers to continue his revival andsubstitution of the classical Stoic expression necessitas naturae forinstinctu naturae in order to avoid those connotations, to redenethe natural law, and thus to assert his convictions about thebedrock nature of things.

Hobbes original substitution of necessitas naturae for instinctunaturae in his discussion of the natural law can be found at thebeginnings of two of his earliest philosophical works, the DeCorpore Politico, circulated in manuscript in 1640, and published inan unauthorized edition in1650, and inDe Cive, his rst systematicwork 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 provideshis account of the origin and basis of humanmoral awareness, andintroduces what may be called a transgressive change in thelanguage of the natural law, by substituting a Stoic concept,necessitas naturae, for the traditional instinctu naturae.

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 inHobbes 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 viewof the basic nature of thingswell before he issued a complementaryprohibition on the use of stand-alone instinctus in De Corpore. Hisnew 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 withnaturae, becomes essentially ancillary; it shifts the focus of thephrases meaning towards further denition of the chameleonicnatura. It did carry a suggestion of divine origin, as noted above,and this contributed to the addition of the later explanatory

evils, which is death; this happens by a real necessity of nature aspowerful as that by which a stone falls downward.89

Bramhall subscribed to, and defended, traditional scholasticteachings about natural law, right reason and its source andparticipation in, to repeat Michael Oakeshott, Reason, the divineillumination 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 denitiveof the human condition. Hobbes initially ridiculed the term rectaratio in De Corpore Politico as something not found or known inrerum natura, and as nothing more than the proponents ownreason in disguise. Despite that judgment he cleverly retained andadapted the term, with its historical resonances intact, to his ownends.91 For example, the passage just quoted from De Cive isimmediately followed by three short sentences, all citing rightreason, which support the assertion that mans liberty and right ofself-defense and self-preservation are fully in accord with rightreason. Early in their exchange Bishop Bramhall cites the activities

R.A. Greene /History of European Ideas 36 (2010) 361374 371appendix id est Deus, but its semanticweakness also invited furtherexplication of natura, such as that provided by the idea of aninstinct proceeding from reason of the glossa ordinaria. Thesemantic authority and history of necessitas, on the contrary, aresuch that it dominates, denes and determines natura. Itsconnotations are absolute, negative, restrictive and nal. Hobbeshimself noted that the Stoics equated necessitaswith fatum, or fate,and later on in the appendix to his Latin translation of Leviathan headds that the Stoics understood fatum to mean eternal decree.86

The goddess Necessitas in Roman mythology is frequentlyrepresented carrying a brazen nail, emblematic of her afxingdecrees. Thus Hobbes has substituted an absolute, compulsory,determining, inexorable and ineluctable force as the ultimate basisof things, including human moral values, a force inscrutable byhuman reason, a force appropriate to his materialistic, mechanicalworld of corporeal bodies in motion, a force lacking purpose orteleology.

In the sixth paragraph of De Corpore Politico he presents aradically redened version of the scholastic synderesis, in whichhuman will and desire are not urged, stimulated or inclined by aninstinctu naturae, id est Deus, to seek the good and avoid evil, but arerequired, 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 evilis self-cessation or death, and the necessitas involved appears toexclude choice: And forasmuch as necessity of naturemakethmento will and desire Bonum sibi, that which is good for themselves,and to avoid that which is hurtfull, but most of all, the terribleenemy of Nature, Death . . .It is not against Reason, that a man dothall he can, to preserve his owne body and limbs, both from Deathand Paine.87 This point is conrmed and the substitution repeatedin the fth law of nature in Leviathan: For seeing every man notonely by Right but by necessity of Nature is supposed to endeavourall he can, to obtain that which is necessary for his con-servation. . ..88

Another redenition of synderesis in the seventh paragraph ofDe Cive is remarkable for its exclusion of instinct despite its focuson the primary human concern of self-preservation, a conceptnearly universally identied with, and called, an instinct. Hobbesassertion that the human ight from the evil of death is utterlynatural (we cannot will to do otherwise) is conrmed rhetoricallyin this passage by comparison to the fall of an inanimate object, astone, which again appears incompatible with human choice: Foreach man is drawn to desire that which is Good for him and toAvoid what is bad for him, and most of all the greatest of natural

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 ThomasWhites 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.of bees and spiders and eventually identies their cause as theinstinct of nature. The expression clearly implied for him its silentmedieval addendum, id est Deus: my thoughts did not reect somuch upon them, as upon their Maker. . . I saw them, but I praisedthe marvellous works of God, and admired that great and rstintellect, who hath both adapted their organs, and determinedtheir fancies to these particular works. . . which I knew to proceedfrom 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 ourminds are the same with those of other living creatures, views theinsects quite differently. For bees and spiders, if he [Bramhall] hadso little to do as to be a spectator of their actions, he would haveconfessed not only election, but also art, prudence, and policy inthem, very near equal to that of mankind.93 The irony in thisresponse is that Hobbes regarded the actions of both insects andhumans as the product of the necessity of nature, even whileinsisting that freedom of action, in the case of human beings, wascompatible with that necessity.94

What is intriguing is that Hobbes does not subject Bramhall tocorrection here, as he regularly does in other cases of Bramhallslapses into scholastic diction, by ridiculing and exposing his use ofinstinct. Instead, he diverts the readers attention to quibbles overdisputed meanings of kind of work, and to Bramhalls allegedmisuse of the word contingent.95 Does he decline to attackBramhalls use of the phrase instinct of nature because of instinctslatent ablative rather than substantive and hypostatic force in thatphrase, and its implied reference to the ultimate causal agent, Godhimself?96

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 theWritings 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 surprisin