Introduction

Pufendorf’s treatise of natural law Dejure naturae etgentium starts surprisingly, at least for positivist jurists, with a chapter on ontology explicitly claiming to be such.¹ Pufendorf states that beside natural beings (entia physica) - human beings, other living creatures as well as inanimate beings - there exist â€?moral beings’ (entia moralia), which are all those moral and legal qualities - in par­ticular political institutions, social roles as well as all rights and obligations - that are attached to or imposed on natural beings and that form the matter of morality and of law.

In this first chapter, Pufendorf specifically states:

[Moral entities] do not arise out of the intrinsic nature of the physical properties of things, but they are superadded, at the will of intelligent entities, to things already existent and physically complete [...] and, indeed, come into existence only by the determination of their authors. And these authors give them also certain effects, which they can also remove at their own pleasure without any accompanying change in the object to which they had been added.^{[861] [862]}

Pufendorf specifies that these intelligent beings who make moral beings appear and disappear according to their goodwill are first God and then human beings. The introduction of this distinction between physical and moral beings is gen­erally considered an important innovation in legal and moral theory, and it has given rise to discussions as to the nature and content of this extraordinary conception of morality and law. Since Pufendorf so emphatically claims that this imposition is a free choice (ex arbitrio) and that the lawgiver has freedom of will (libertas voluntatis), it seems reasonable to conclude that Pufendorf, just like, for example, Suarez before him, was a voluntarist. In other words, in stark contrast to Grotius, Pufendorf made the natural law dependent on God's will, rather than on man's rational nature.

In this chapter it will be argued that if Pufendorf is a voluntarist in this sense, he nonetheless is a voluntarist of a very special kind. In the end we will wonder if the doctrine of the entia moralia would not allow Pufendorf to move between - and perhaps beyond - the voluntarist-naturalist divide, and thereby importantly contribute to the ongoing debate between theologians, jurists, and philosophers about their competences in the field of natural law.

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