run.unl.pt Web view(Indianapolis: Hackett, 1998). References are to Carl Gebhardt ... Spinoza studies have paid little ... he does not know what the word

Epoché, Volume 21, Issue 1 (Fall 2016). ISSN 1085-1968 127-143DOI: 10.5840/epoche201682968

SPINOZA ON JUSTICE: UNDERSTANDING THE SUUM CUIQUE1

ANDRE SANTOS CAMPOS

IFILNOVA, Nova University of Lisbon

Abstract: Spinoza studies have paid little attention to the concept of justice for centuries. However, he refers to it quite often in different contexts, especially in his mature texts. More specifically, he defines it as synonymous with suum cuique tribuere, even though he fails to provide a reasonable account of how this traditional legal expression fits into his philosophical system. This article shows that there is a relevant philosophical dimension in Spinoza’s treatment of the suum cuique that emerges out of his notion of equality. The main section identifies the connection between Spinoza’s references on justice as suum cuique and the different conceptions of equality that are inherent in his system (an ontological, a metaphysical, a productive (ethical), a legal, and a political equality). The conclusion tries to answer the question of whether such an understanding of the suum cuique as equality constitutes a theory of justice or not.

Spinoza studies have paid little or no attention to the concept of justice for centuries. Such neglect can be explained in different ways. Firstly, Spinoza managed to devise an entire ethical theory without attributing theoretical prominence to justice or to those terms usually associated with it, such as duty, consequence, norm, value, responsibility, or even virtue. Secondly, justice appears in Spinoza as an explanatory notion that helps to clarify other definitions rather than as a concept whose importance easily stands out. Thirdly, theories of justice in political theory tend to express a sort of political moralism, that is, justice emerges as a criterion or a basic pattern in light of which politics and law could be measured and optimized. The elemental drive of Spinoza’s political theory, however, is power rather than a moral value like justice. Politics and law are somehow independent from morality; they are measured and optimized in light of how much they can do, achieve, affect and be affected; political rule, legal statutes and individual rights seem essentially neutral with regard to value parameters.

1 Translations from the Ethics are from A Spinoza Reader, ed. and trans. Edwin Curley (Princeton:

Princeton University Press, 1994). Translations from the Cogitata Metaphysica [CM], the Tractatus

Theologico-Politicus [TTP], the Tractatus Politicus [TP] and the Correspondence [Ep] are from Samuel

Shirley in Spinoza. Complete Works (Indianapolis: Hackett, 1998). References are to Carl Gebhardt,

Spinoza Opera, 4 volumes (Heidelberg, 1925), by page number (included in most modern editions). The

standard abbreviations are followed.


As a consequence, Spinoza scholarship has been able to increase exponentially during the last few decades (in quantity and in quality) with a certain scientific immunity to the subject of justice.2

Nevertheless, Spinoza refers to the concept of justice and its derivatives quite often in different contexts,3 especially in his mature texts. In fact, despite the significant differences (in intentions, audiences, structure, methods, concepts or arguments) between the TTP, the Ethics and the TP, one specific reference seems to repeat itself: the definition of justice in the traditional legal terminology of suum cuique tribuere [to render each his own]. However, he never elaborates explicitly on what he understands as suum cuique. In a sense, the fact that he fails to explain the meaning of suum cuique could be a way of undervaluing justice, as if he were saying: “I have no dispute with those who understand justice as suum cuique tribuere, but I do not regard it as something worth discussing for the purposes of my system of philosophy.” But, if this were so, why bring it up in the first place, and repeatedly throughout his opus? Why not simply say that, even though he is aware of what others claim to be justice, he does not know what the word actually means, such as he does with regard to the concepts of person and of personality? 4

The following argument will try to show that there is a relevant philosophical dimension in Spinoza’s treatment of the suum cuique that emerges out of the different usages of his notion of equality. The main section identifies the connection between Spinoza’s references on justice as suum cuique and the different conceptions of equality that are inherent in his system; it is divided into 5 subsections, each explaining how there are different versions of equality in Spinoza (an ontological, a metaphysical, a productive (ethical), a legal, and a political equality) that constitute different ways of interpreting his suum cuique and ultimately make up a complex and multi-layered concept of justice. The conclusion tries to answer the question of whether an understanding of the suum cuique as equality constitutes a theory of justice or not; in addition to revealing Spinoza’s heretofore hidden originality on the subject of justice, it explains why this distinctiveness is insufficient to sustain a fully developed theory of justice.

The suum cuique as equality

2 There are exceptions to this apparent immunity: Gail Belaief, Spinoza’s Philosophy of Law (The Hague:

Mouton, 1971), 88-99, 100-104; Alexandre Matheron, “Spinoza et la problématique de Grotius,” in

Anthropologie et politique au XVIIe siècle (Paris: Vrin, 1986), 81-102; Richard A. Cohen, “Justice and

the State in the Thought of Levinas and Spinoza,” Epoché 4 (1996): 55-70; Ericka Tucker, “Baruch

Spinoza,” Encyclopedia of Global Justice, ed. Deen K. Chatterjee, vol I. (Dordrecht: Springer, 2011),

1034-1036; and Evaristo Palomar, Una lectura de la justicia en Baruch Spinoza (Madrid: Tradere, 2011).3 Spinoza mentions justice in the following contexts. In the sense of “justice and charity”: TTP Pref/10,

11; XIII, 168, 170, 172; XIV/173, 177-9; XV/186; XVIII/226; XIX/230; Ep 43/216; Ep 76/318. In the

sense of “just cause”, which sometimes seems synonymous with “adequate cause”: E4P73S; E3P40S;

E3P41S; TTP IV/64. In the sense of “legal system”: TTP VII/103; XX/246; TP VI, 26, 30; VII, 1; VIII,

37-41. In the sense of “constans voluntas suum cuique tribuere”: TTP IV/59; E4P37S2; TP II, 23; Ep

23/150. In the sense of “obedience to civil law”: TTP XIX/230-1; E4P37S2; TP II, 23.4 CM II, 8/ 200.


In the TTP, Spinoza defines justice as “a set disposition to render to every man what is his in accordance with civil law;” and injustice, by contrast, as depriving “a man, under the guise of legality, of what belongs to him by true interpretation of the law” (TTP XVI/ 196).

In the TP, he follows up on what he had stated in E4P37S2:Just as sin and obedience, taken in the strict sense, can be conceived only in a state, the same is true of justice and injustice. For there is nothing in Nature that can rightly be said to belong to one man and not another; all things belong to all, that is, to all who have the power to gain possession of them. But in a state, where what belongs to one man and not to another is decided by common laws, a man is called just who has the constant will to render to every man his own; and he is called unjust who endeavors to appropriate to himself what belongs to another. (TP II, 23)

These two passages gather different arguments in favor of justice. The first is an Argument from Politics according to which justice only exists in civil society, that is, justice is the name given to a standard that applies to human conventions and is itself a human convention – outside the boundaries of effective political institutions, justice and injustice are inconceivable.5 The second is an Argument from Property according to which justice consists in rendering to each his own, where “own” is understood to be the object of a property right created by civil law and belonging exclusively to the “owner,” that is, justice is the steadfast will to allocate available social goods in respect to those exclusive individual rights to property which are non-existent until introduced by civil law.

However, these definitions present certain problems. Firstly, they derive from other authors.6 The suum cuique follows from Ulpian’s definitions of justice in the Corpus iuris civilis,7 even though Spinoza writes a book (the TTP) specifically against a theological (Hebrew) background; and the most explicit argument supporting justice in the Ethics and in the TP (the Argument from Property) is copied almost verbatim from Hobbes, who defines justice as the distributive actions of an arbitrator demarcating “mine” from “thine.”8 Secondly, the fact that Spinoza prefers to present his definitions 5 Spinoza says in TTP XIX that, in the state of nature, “we see the same fate befalling the just and the

unjust, the pure and the impure” (TTTP XIX/ 229, 231), which might perhaps suggest the idea that

humans can be and sometimes are just in the state of nature. However, Spinoza seems to refer to the just

and the unjust in this passage not in their capacity as just and unjust, but only in their capacity as

individuals which we can characterize as just or unjust once civil law is instituted. The fact that Spinoza

calls such individuals just while in the state of nature does not mean necessarily that a norm of justice is

in place in the state of nature, but only in the moment of reference to the state of nature. For example, I

can say “the day when Michael was conceived,” even though in that day the fertilized egg was not called

Michael yet; I can also call my father’s deceased and only brother “uncle Tony,” even though he died

long before my father had children. This interpretation is paramount to Spinoza’s Argument from Politics.6 This is probably the main reason why Michael Rosenthal claims that Spinoza’s definition of justice is

“almost completely empty”: see his “Politics and Ethics in Spinoza: The Problem of Normativity,” in

Essays on Spinoza’s Ethical Theory, ed. Matthew Kisner and Andrew Youpa (Oxford: Oxford University

Press, 2014), 93.7 Institutiones, 1.1; Digesta, 1.1.10.8 Hobbes, De Cive V, 1.10 ; V, 6.9 ; V, 12.7 ; and Leviathan XV, 15; XXIV, 5.


of justice from the viewpoint of the Roman lawyers and Hobbes rather than the viewpoint of the debates concerning divine justice9 shows that justice to him is mostly a political concept with little or no moral relevance. Thirdly, the claim that justice is a constans voluntas does not seem to imply that it is a virtue in the same sense that strength of mind, fortitude, or blessedness are. In fact, Spinoza never mentions justice when he writes about affects. The most that he does is to present justice as a quality of character exemplary of some kind of virtue, such as in E4P18S.10 Instead, he seems inclined to associate justice with a legalist conception describing actions and states of affairs.

In light of such difficulties, how is it possible to find here a novel version of justice as suum cuique tribuere? Theories of justice are at times about the realization of a moral value in accordance with divine will or with human reason. Other times, they are about freedom because they determine what actions people are free to do (what is the right thing to do) and what they are not (what is the wrong thing not to do). In general, however, they have in common what Ronald Dworkin called “the egalitarian plateau”11 – they sustain that justice applies a specific criterion of equality. They differ with regard to the criteria from which the contents of justice can be determined: there is widespread agreement on its value but not on the best realization thereof. It is in this latter sense that something resembling a theorization about justice can be found in Spinoza’s suum cuique.

This expresses Chaim Perelman’s famous distinction between “a formal or abstract justice” and “particular or concrete formulae of justice.” Formal justice, which is common to all theories of justice, is a principle in accordance with which beings of one and the same essential category must be treated in the same way.12 Disputes about justice concern the different formulae determining the essential characteristics that must be met in order to form categories inside which equal treatment is required. Some consider all human beings to belong to the same essential category, others only adult men, others only proprietors, etc. Disputes about justice also concern what it means to “be treated in the same way” inside a given essential category. Some will apply equality in accordance with merit, others in accordance with wealth, others in accordance with needs, etc. Within this formal frame of reference, equality inside one essential category may follow different criteria and thus produce different types of justice. Perelman identified the following criteria: (1) Absolute equality: To each the same thing; (2) Relative equality: (2.1) To each according to his merits; (2.2) To each according to his works; (2.3) To each according to his needs; (2.4) To each according to his rank (in a society, in a race, in a species, etc.); (2.5) To each according to a legal entitlement.

9 Even though he puts forward an important discussion of divine justice in TTP III/231.10 See Donald Rutherford, “Spinoza’s Conception of Law: Metaphysics and Ethics,” in Spinoza’s

Theological-Political Treatise, ed. Yitzhak Y. Melamed and Michael A. Rosenthal (Cambridge:

Cambridge University Press, 2010), 143-167.11 Ronald Dworkin, “The Original Position,” University of Chicago Law Review, 40 (1973): 532.12 Chaim Perelman, The Idea of Justice and the Problem of Argument (London: Routledge, 1963), 16. The

same distinction seems to be followed, albeit not with the same terms, by H.L.A. Hart, The Concept of

Law (Oxford: Clarendon Press, 1961), 155; and by John Rawls, A Theory of Justice, revised edition

(Cambridge: Belknap Press, 1999), 5, who differentiates between the concept of justice and conceptions

of justice.


A strict reading of Spinoza’s arguments from politics and from property might interpret his usages of justice as versions of the latter criterion (to each according to a legal entitlement). According to this view, if justice is suum cuique tribuere, then it is necessary to be able to determine what each individual's own is if a vicious circle is to be avoided. By means of a legalist determination of what suum cuique is, it becomes possible to arrive at the conclusion that to be just means to accord to each person what the law entitles him to. This formula seems to admit of as many variants as there are different types of law; each system of law assumes a justice relative to that law. To be just is to apply the rules of a given legal system; to be unjust is to misapply them. In practice, this strictly legalist interpretation of Spinoza’s concept of justice can easily be mistaken for legal positivism. And indeed that is what some Spinoza scholars end up doing.13

However, it is important to note that Spinoza’s understanding of suum cuique can fall under all the different contexts in which equality is mentioned. This entails that the formal concept of justice as suum cuique appears in Spinoza whenever he seems to mention different criteria in light of which equal treatment of elements belonging to equal essential categories must follow. These references do not seem to be exclusive to a political context. Different types of equality of treatment will be different applications of the formal concept of justice; therefore, they will be different ways of interpreting Spinoza’s suum cuique as well.

1. Ontological equality

Equality can be found first and foremost in the connection that Spinoza establishes between his system’s metaphysical grounds and his political theory. That connection is achieved by the concept of power.

In the TP, Spinoza says that By natural law, then, I understand the laws or rules of Nature in accordance with which all things are made, that is, the very power [potentia] of Nature. So, the natural law of Nature as a whole, and consequently of each individual thing, is coextensive with its power. (TP II/4)

What attributes “naturalness” to Spinoza’s conception of law is the fact that it expresses power [potentia]. But what should be understood as power in this context? Spinoza’s notion of power is neither a capacity for performing an action nor an abstract freedom (exercisable and not necessarily exercised), but only a measure of causality. Power extends as far as the direct effect which has that power for cause (E1P34;

13 See, for instance, Belaief, Spinoza’s Philosophy of Law, 101-103; Manfred Walther, “Spinoza und der

Rechtspositivismus,” Archiv für Rechts- und Sozialphilosophie 68 (1982): 407-419; and, more subtly,

Michael Della Rocca, Spinoza (New York: Routledge, 2008), 211-212. However, legalist conceptions of

justice are not necessarily the same as legal positivism. Legal positivism claims that morality and

associated concepts such as justice cannot function as criteria for ascertaining the validity and obligatory

force of law; moral judgments about law are morality, not law; only social efficacy and due enactment

determine the existence of law. On the other hand, legalist conceptions of justice state that valid positive

law establishes the contents of justice; judgments about justice or injustice are necessarily legal, not

moral; the requirements of justice and of civil law coincide. The fact that they share the conclusion that

positive law cannot be invalid because of injustice does not mean they are the exact same thing.


E1P36Dem). An individual man, for instance, is powerful by achieving everything that results from his actual productivity. He does not have a natural right to everything he can; he has a natural right to everything he does (E4P37S2). The only limit to his power is the act of which he can no longer be considered a direct cause. When Spinoza says that, for individuals, natural law is coextensive with power, this is what he means: that a right “extends” as far as the effect in production; it is “coextensive” with all the effects in production by the individual.

This notion of power has nothing to do with Aristotle’s views concerning potency (E1P31S). It is not identical with a present capacity for the performance of a future end; it is not a present thing affirming something for the future. An individual’s power, and consequently his expression of natural law, is actually the measure of extension of his own causality, the scope of all his effects.

Spinoza’s association of natural law with power is not a simple metaphorical exercise used in a marrano-styled rhetoric.14 On the contrary, Spinoza can define individual expressions of natural law only through ontological power itself. Individual natural rights are the individual’s actual causal power in accordance with the individual’s natural laws. One has a right to do something if one does it. Possibilities have nothing to do with an individual natural right. And since Spinoza’s conception of individuality is wider than the category of human individuals, all individuals are expressions of this natural power – a man’s right is as natural as a lion’s or a fish’s, which is why he says that lions and fish have a natural right to eat smaller animals precisely because they are naturally powerful (in the causal sense) to do so (TTP XVI/ 195). Power is a measure of causality: entirely necessary, neither contingent nor hypothetical.

From the viewpoint of individual things, they do not simply have power; they are power. Spinoza’s notion of endeavor, according to which “each thing, insofar as it is in itself, endeavors to persevere in its own being” (E3P6), expresses the actual efficiency of causal power. In individual things, active power is equivalent to this endeavor – as Spinoza says, “power or endeavor” [potentia sive conatus] (E3P7d). This is sufficient to support the appearance of a certain criterion of equality.

Spinoza’s notion of power seems to mirror Perelman’s conception of absolute equality: To each the same thing. Individuals have equal access to the same thing: Nature’s power. It is possible to speak of equality here in the sense that there are no exclusions from the essential category of “natural individuality” – all individual things without exception are equally endowed with some of Nature’s power. Nature is the first criterion determining the essential category of individuality. And since it is all-inclusive, it admits no exceptions. There is no universality, but rather the impossibility that any individual thing is not natural: “naturalness” is a common characteristic of everything that is and can be conceived. All that exists (in act or in eternity) exists necessarily; and since what each individual performs is done by natural right, all individual things have an (equal) right to exist and to act. This can be called ontological equality.

2. Metaphysical equality

14 For the exact opposite view, see Yirmiyahu Yovel, Spinoza and Other Heretics, vol. I (Princeton:

Princeton University Press, 1992), 149.


Even though all individuals have access to Nature (and they are equal in this sense), they differ in how much access they have to Nature. In the Ethics, Spinoza makes way not for a metaphysical or moral equality of persons, but for their profound inequality based on a hierarchy of natural powers. In fact, the Axiom to Ethics IV presents power as fundamentally based on inequality: “There is no singular thing in Nature than which there is not another more powerful and stronger. Whatever one is given, there is another more powerful by which the first can be destroyed” (E4Ax).

Inequality appears here as a direct violation of the criterion according to which natural power should be distributed in absolute equality between all natural individuals. However, absolute equality can be found only in access to Nature as a whole; whenever Nature is regarded from the exclusive viewpoint of its singular expressions, there are no absolutes. Inequality of natural powers appears only if one regards Nature as a whole as the essential category inside which equality is to be applied. Inequality no longer appears if each and every singular degree of natural power in the infinite hierarchy of causal powers is taken to be an essential category of its own. This way, there is equality in each essential category of power – a specific type of application of the formula To each according to his rank.

The axiom to Ethics IV implies ultimately that no two modes possess exactly the same degree of power; otherwise, they would have the same degree of adequacy as ideas and of motion as bodies, which would make them indistinguishable from each other. A “degree of power” is what functions here as an essential category in Perelman’s terminology. Solely in light of Spinoza’s theory of individuation, a degree of power is a singular mode and vice versa. There are no classes of individuals that constitute a degree of power without becoming singular individuals themselves, for such classes are more the product of imagination than actual divisions of reality (E4Pref). However, Spinoza frequently makes general claims about groups of individuals based on their shared bodily constitution (what a given kind of body is typically able to do). That is what makes it possible for Spinoza to speak of horses or humans and not simply of Horse-A and Horse-B and Man-A and Man-B. In this sense, these shared bodily constitutions can characterize a “degree of power” or essential category in Perelman’s phrasing.

Literally speaking, the axiom to Ethics IV does not say that there can be no two or more things with the same degree of power; it only says that there is no degree of power that cannot face a higher degree of power. Consequently, equality can be exercised between different individuals in the same widely-conceived “degree of power.” This can be called metaphysical equality.

What metaphysical equality establishes is the impossibility that individuals with the same degree of perfection do not rank within the degree of natural causality belonging to that particular degree. For Spinoza, bodily complexity is generally the essential characteristic defining different ranks in the hierarchy of natural power. That is why it is impossible that Horse-A (whose natural power fits inside the overall hierarchy of power between individuals and between individual horses) can never have more causal power than Man-A (whose causal power fits inside the overall hierarchy of power between individuals and between individual men), even if Man-A is the least powerful of human individuals. Man-A’s rank in the hierarchy of perfection equals the


degree of power associated with that rank; if Man-A had a degree of natural power close to Horse-A’s or to Horse-B’s, there would be metaphysical inequality.15

A man’s reduction to the rank of mere laboring force is thus inequality in the metaphysical sense. This makes way for a connection with justice. For instance, the equivalence of men to things (such as occurs in slavery) can be termed metaphysically unjust. Metaphysical equality helps to develop the criterion determining the suum cuique.

3. Productive equality

Spinoza says in his Ethics: “obedience is considered a merit [meritum] in a citizen, because of that account he is judged worthy of enjoying the advantages of the state” (E4P37S2).

In this passage, he uses terms that are unusual in his writings on justice: merit and worthiness. Being the subject of a State is deemed not simply a condition or a state of affairs, but rather something that is the result of merit – one does not simply become a citizen, one must become worthy of being a citizen. Obedience to the State is here not a simple matter of fact; it is the natural consequence of those who are worthy of being subject to the State. Merit is not determined by civil laws (whether they are supported by the Argument from Politics or the Argument from Property), especially because civil law can validly provide for the distribution of property in accordance with criteria other than merit. Merit is rather that which is added to the political context of justice in order to facilitate the understanding of power inside a State in which civil law is obeyed.

What is merit for Spinoza? How does one become worthy of becoming a citizen? It seems pointless to search for a moral value or principle preexisting and transcending civil law that establishes what is worthy and what is unworthy. Such moral dualism is alien to Spinoza’s philosophy. Instead, merit seems more like a criterion that qualifies law in accordance with natural power (and the knowledge thereof) – it is a measure of productivity.

The worthy action or character (the one in accordance with merit) is not mere conformity of character to an ideal good, but rather the actual production of something tangible for the ideal good. The ethically good action is not the one that can simply be described after the fact as being in accordance with a valued good, but the one that actually makes the valued good. Productiveness is the measure of an ethical action, and it consists simply in the power to bring into existence an integration of natural elements that had not existed before. Moreover, productivity follows the force of endeavor: it is a process fueled by previous production, whose effectiveness (production of effects) grows the more it is accompanied by the necessary result of those actions leading to perseverance in being.

15 Metaphysical equality is akin to what Michael H. Hoffheimer called “equality of measurement:” see his

“The Four Equals: Analyzing Spinoza’s Idea of Equality,” Philosophie 5 (1985): 237-249.


This emphasis on power as productivity entails a break with deontology16 and a focus on the value of work – both as productive labor and as a material value remaining in existence after its making. The proliferation of effects that necessarily increase the individuals’ perseverance in existence – effects that are increasingly important in number and in quality the more they follow from a stable human cooperation in the division of labor – eventually poses the problem of who is entitled to possess and use them. This is the problem concerning the distribution of those effects following from concerted social power.

Merit is the name given by Spinoza to the criterion establishing the equality of power when it is distributed. It is not concerned with how to distribute power equally between individuals. Equality is rather the correlation of equal benefits to equal production in the same powerful individual – equality not between men in economic terms but between one man’s productivity and his produced effects. Merit is the action aiming at this correlation between production and benefits. It mirrors immanent causality in productive relations between individuals.

The analogy between merit and immanent causality ensures that the effects of productive activity fall under the producer’s sphere of action, whether those effects are afterwards valued as benefits (increase of the individual’s endeavor) or as losses (decrease of the individual’s endeavor). In order for there to be merit, the efficient effects of power must occur within the sphere of action of the same entity that caused them directly. This conception of power can be called productive equality.

Productive equality is a particular formula of justice dealing with the immanent distribution of effects. The just distribution is the one in which the producer is the direct and immediate beneficiary of his actions, that is, the one based upon merit. That is why Spinoza claims explicitly that forgiveness “is appropriate only in places where justice is neglected” (TTP VII/ 104): forgiveness is a violation of causal immanence insofar as it prevents the (bad) effects of certain actions from falling under the sphere of power of their producers; it is a violation of causal equality since one’s actions produce effects (wrongful effects, that is, effects that diminish individual endeavor) that are to be endured by others.

How can such immanence occur? Not by physically integrating those effects inside one’s own body, but rather by maintaining them within one’s legitimate sphere of action. This sphere’s determination comes about in the legal notion of individual rights, that is, in the legitimate extension, recognized by others, of one’s entity and activities beyond one’s physical body – hence Spinoza’s need to add the Argument from Property right after his mention of merit in E4P37S2. Property rights represent the extension of the agent’s entity beyond his own body – a sort of artificial body. They are not a passive abstract ownership of an object with the possibility of physical possession, but rather the active legitimate acquisition in one’s extended entity (immanently) of those produced effects (or of what represents them).17

16 For the opposite view, according to which Spinoza’s notion of dictates of reason implies a set of

practical laws still capable of refraining affects, see Michael LeBuffe, From Bondage to Freedom.

Spinoza on Human Excellence (New York: Oxford University Press, 2010), 175-193, and Matthew J.

Kisner, Spinoza on Human Freedom (New York: Cambridge University Press, 2011), 112-34. A break

with deontology, however, does not mean the absence or uselessness of duties, but rather that such duties

are not fundamental to Spinoza’s ethical theory.


In Perelman’s terminology, Spinoza’s productive equality would be a form of justice following the formula: To each according to his merits. But since merit equates with immanent causality, “To each according to his merits” is synonymous with “To each according to his works” with regard to the distribution of goods in society. This is yet another way of interpreting Spinoza’s suum cuique expression.

4. Legal equality

The establishment of “mine” and “thine” is made by civil laws alone. Consequently, the suum cuique tribuere will always be an application of the formula: To each according to a legal entitlement. This entails that all the other types of equality and their corresponding formulae can only be associated with the suum cuique once political power is in play; ontological, metaphysical and productive equality are criteria that help qualify justice rather than determine it. The political context of Spinoza’s justice (including the Arguments from Politics and from Property) can only be understood when taking those types of equality into account.

Equality in a political context falls under two categories. The first can be called legal equality.

Spinoza’s endorsement of political equality seems ambiguous at times. One’s “equal right” extends from the state of nature into the civil state (TTP XVI/ 195); and yet, there is nothing that men find more repugnant than to obey their equals and serve them (TTP V/ 74). But if Spinoza’s political writings describe the society in which the liberating purpose of the Ethics can be realized,18 how should equality actually figure in politics? What does he mean by equality in a political context?

The importance of this question emerges in light of Spinoza’s simultaneous insistence upon the natural inequality among individuals (mostly, inequality of power and reason) and upon democracy as the best form of government.19 On the one hand, natural inequality constitutes the basis justifying the exclusion of certain classes of individuals (such as foreigners, women, laborers, children and criminals) (TP XI, 3-4) from political participation. On the other hand, he claims that “in a democratic state nobody transfers his natural right to another so completely that thereafter he is not to be consulted; he transfers it to the majority of the entire community of which he is part [and] in this way all men remain equal, as they were before in a state of nature” (TTP XVI/ 195) – the fundamental grounds justifying his preference for democracy continue to relate to equality.

17 For a slightly different interpretation on the role that property rights have in Spinoza, see Alexandre

Matheron, “Spinoza et la propriété”, in Anthropologie et politique au XVIIe siècle (études sur Spinoza)

(Paris: Vrin, 1986), 155-69; and Warren Montag, “Who’s Afraid of the Multitude? Between the

Individual and the State,” The South Atlantic Quarterly, 104 (2005): 655-73.18 In this sense, see Susan James, Spinoza on Philosophy, Religion, and Politics (Oxford: Oxford

University Press, 2012).19 For the view that this simultaneous insistence constitutes a paradox, see Idit Dobbs-Weinsten,

“Rereading the Tractatus theologico politicus in Light of Benjamin’s ‘Theologico-Political Fragment’”,

in Piety, Peace and the Freedom to Philosophize, ed. Paul J. Bagley (Dordrecht: Kluwer, 1999), 67-90,

esp. 87-8.


In order to consider both these claims as compatible, the political equality justifying democracy cannot be an equality of civil rights with political participation. Equal civil rights are irreconcilable with arbitrary exclusions of addressees of civil laws from the making of positive law. The political equality justifying democracy is not “equality before the law” in the traditional sense that all people are subject to the same civil laws, or that judges must treat everyone equally before the law regardless of their national origin, gender, ethnicity, age or other characteristics, without privilege, discrimination, or bias.

Rather, what is equal among all individuals of political society is their participation in the process by which they constitute political power in the first place – and, chiefly, the fact that they all remain subject to the same power as a consequence of that process. Equal participation in the constitutive power differs from unequal participation in the constituted power. Because men are unable to survive on their own in the state of nature and yet they cannot tolerate to be ruled by their equals, they end up constituting a common power by transferring their rights to a “united body of men” rather than to one or several individuals. “They all must obey [this common power] in all matters, for this is what all must have covenanted tacitly or expressly when they transferred to it all their power of self-defense, that is, all their right” (TTP XVI/ 193). They all (without exception) form a picture of the sovereign power to which they transfer their rights – a picture that makes the sovereign stand out above all individuals in the artificial form of legality, thus overcoming the fact that men hate to submit to their equals.

Consequently, there is “equality before the law” in a political community in the sense that all members are equally subject to the same institutional framework of positive law. Citizens are not endowed with equal civil rights; but subjects are endowed with equal civil duties. They remain equal insofar as they are bound to obey one common authority – nobody has the privilege of being exempt from obedience to the same sovereign power. A political community in which some citizens are not addressees of positive laws is necessarily unjust; it fails to bring about legal equality.

5. Political equality

There is another sense in which “equality before the law” can help explain how the suum cuique occurs in a political context. It can be called political equality.

Once constituted, “the sovereign is bound by no law” (TTP XVI/ 193). It has no legal constraints and is not equal before the law in the sense provided by legal equality. But that means neither that it is an absolutely limitless power nor that it is supreme or as powerful as it can be. In order to increase and preserve power, the sovereign must somehow attend to its subjects’ expectations concerning the exercise of power. The efficacy of political decisions is the true measure of power – and equality is an important measure of efficacy.

Efficacy depends upon two major factors.

The first factor is moderation. Spinoza’s claim that freedom of thought and speech is advantageous to the sovereign entails two points: that freedom of thought and speech cannot be confused with licentiousness, that is, with an absolute ability to think of everything and of expressing any opinion whatsoever, since opinions seditious to the public peace are to remain inadmissible (TTP XX/ 242); and that what matters is not whether sovereigns have a right to compel subjects to follow certain opinions or not, but


rather whether doing so is beneficial or damaging to the sovereign (TTP XX/ 240). Absence of individual freedom is damaging in the long-run to the sovereign, since tyranny intensifies the gap between ruler and subjects, which in turn furthers the subjects’ resistance to commands, which in turn weakens the sovereign, which in turn produces social tensions and conflicts that are damaging to peace and political stability. The free State – the one which promotes individual freedom because that is beneficial to its power – is the one that stands in the middle of two contrary political regimes, namely absolute anarchy and absolute tyranny: it is the moderate government.

How can a State become moderate? Spinoza provides the answer in chapter XVII, following the Hebrew State’s example. Moderation is achieved by limiting the power attributed to Hebrew leaders and by “curbing the boundless licentiousness of princes” (TTP XVII/ 213). The idea lying behind this example is that unlimited power is worse and less powerful than limited power. Political power is more stable and prosperous the more it eliminates those conditions that allow arbitrariness of political decisions and the more it accepts the rule of law even though it is not bound by it. The free State is the one with a moderate government in which decision making is predictable. The exact opposite of a moderate State is one in which people live their whole lives in a “continual practice of obedience,” where no one can desire what is forbidden but only what is prescribed, to the point that slavery is mistaken for freedom (TTP XVII/ 216). In the moderate State, subjects desire only what is prescribed because what is prescribed is only what they desire in the first place. The sovereign has no arbitrariness, since he is limited to prescribing only what subjects are expecting him to prescribe – that is what makes his decisions efficacious.

Efficacy’s second factor is democracy. The fact that men abhor to be ruled by their equals (TTP V/ 74) entails that there is always a gap between rulers and subjects and an asymmetry between ruling and obeying except when citizens believe they are following their own volitions when obeying the laws. The more transcendent-like is the relation between the State and its subject, the more men will believe that they are conforming to another’s will instead of their own, which will entail that they will obey laws much less willingly. Efficacy depends mostly upon the generalized belief that subjects participate to some extent in the making of political decisions.

Spinoza proposes to equate political efficacy with individual freedom. His first step is to eradicate the imaginary ontological gap between rulers and subjects by making each individual believe that when he obeys political decisions he is obeying nothing but his own will. The most effective political decisions are those laws that become mandatory because individuals are willing to obey them and accept them qua obligatory – that is, those in which the law-making process is somehow politically immanent. And that can only be achieved when the subjects who will obey the laws are exactly the same individuals who constitute the law-making process in the first place. The more democratic the State, the more efficacious it will be, since each individual subject will more actively believe to be obeying the laws for the reason that it is advantageous for the public good and consequently also for himself.

The TP follows the same line of reasoning. A State is sui juris if it is powerful, that is, if it produces efficacious decisions. Efficacy depends upon the multitude’s constituent force – the less powerful the multitude, the less effective the institutional political decisions. The most effective political institutions are those which depend on the multitude’s growing empowerment (TP III, 2). Insofar as the process for political decision-making is shared by all the individuals constituting a multitude, efficacy


becomes more certain and political commonality more probable. Democracy is then the most effective and powerful political regime.

However, democracy as it is described in the TP is far from being the institutional rule of the many refraining the multitude’s constitutive potentia by the use of potestas.20 It is not necessary that potestas gives way to the multitude’s expanding potentia if the former is regarded as adaptable to the latter’s variations of power (either by opening up institutions and procedures when the multitude expands, or by closing them when the multitude contracts). That is why the exclusion of certain classes of subjects from political participation (women, for instance) (TP XI, 3-4) functions as an argument against Spinoza’s democratic project only up to a certain point. If the democratic State is able to adapt to the multitude’s changing empowerment, then it is conceivable that some political organization might eventually arise by accumulating so much power that, in order to continue to expand, it requires the participation of more citizens rather than their exclusion.21

Equality is then democracy’s best measure of efficacy. Equality before the law in this sense implies that the class of addressees of civil laws becomes increasingly commensurate with the class of participants in the making of civil laws. It is the transformation of the multitude’s power into a collective structure charged with the task of distributing its own effects among its members. Political equality – the civil law’s definition of the essential category determining what constitutes justice – thus softens the possible economic inequalities brought forth by the application of productive equality (according to which those less capable of increasing production could perhaps fall into indigence).

This is how the suum cuique comprising Spinoza’s concept of justice fits into his notion of equality. The formula To each according to a legal entitlement can only be understood insofar as it encompasses all the different types of equality in a cumulative manner.

Conclusion: Does Spinoza have a theory of justice?

Spinoza’s emphasis on a legalist conception of the suum cuique category, combined with the fact that his politically-contextualized concept of justice cannot be interpreted without the cumulative contribution of different types of equality, show that justice is formed by several justificatory layers.

20 The distinction between potentia (as natural force or power) and potestas (as sovereign or state power)

is made by Antonio Negri, The Savage Anomaly, trans. Michael Hardt (Minneapolis: University of

Minnesota Press, 2003).21 For the thesis that certain subjects are irretrievably excluded from Spinoza’s democracy, see Alexandre

Matheron, “Femmes et serviteurs dans la démocratie spinoziste,” in Anthropologie et politique au XVIIe

siècle (Paris: Vrin, 1986), 189-208 and Susan James, “Democracy and the Good Life in Spinoza’s

Philosophy,” in Interpreting Spinoza. Critical Essays, ed. Charlie Huenemann (New York: Cambridge

University Press, 2008), 128-146. For the opposite view, see Moira Gatens and Genevieve Lloyd,

Collective Imaginings. Spinoza, Past and Present (London: Routledge, 1999), 129-32. For an important

contribution to this discussion under a new light, see Hasana Sharp, Spinoza and the Politics of

Renaturalization (Chicago: The University of Chicago Press, 2011), especially ch. 5.


His originality when alluding to justice seems to be this: his wide notion of justice accepts different conceptions of equal treatment that form a scale (rather than a uniform essential category and criterion) of degrees of justice. Such a scale for measuring justice will end up adopting different types of equality in different contexts. Justice is polysemic because it is able to cumulate several types of equality in different contexts.

Spinoza’s connection of justice to his varied conception of suum cuique as equality entails that justice cannot be only a moral concept, only an institutional concept, only a metaphysical concept, only a legal concept, or only a political concept. Rather, because it is intrinsically political inside the general metaphysical framework of natural power, it cannot but be (qua political) also moral, institutional, metaphysical and legal.

Within this frame of reference, any content whatsoever can be law regardless of its substantive moral quality,22 provided that it is efficacious (powerful). Spinoza would agree with legal positivists when they claim that civil law is valid only when it is efficacious; but he goes one step further and adds that civil law is valid because it is efficacious. He grounds this assertion on a metaphysical view of natural law. Civil laws are more efficacious the more they are egalitarian and inclusive – the different criteria of equality help to determine cumulatively efficacious laws which, for that very reason, are also the most just laws. It is true that, for Spinoza, all positive law is intrinsically just; but since justice as equality is a multi-layered scale applicable to several contexts, all positive laws are just but some positive laws are more just than others. Conversely, injustice is powerlessness; actions, characters and states of affairs are unjust whenever they are powerless to become more powerful (and equal in the several meanings of equality) than they actually are.

In some theories, justice functions as a classifying criterion for the validity of law: it is the pivotal test for classifying something as law. If a norm with some pretence to legality contradicts justice, it cannot even be called a legal norm. In Spinoza, justice is a qualifying criterion for the validity of law: it does not determine what the law actually is, but rather which law is legally binding and which is legally defective for either succeeding or failing, respectively, to meet a certain requirement of equality in a specific context. Justice does not classify law as such, but it qualifies it as more or less natural.

Does this constitute an original theory of justice? Certainly so, with the understanding that justice is presented by Spinoza as an optimization standard of equality in human relations in light of which several different criteria, contexts, and disciplines determine different degrees of natural power. He provides a multidisciplinary inquiry into the immanence of justice as equality. Such a thesis cannot be seen in any other early modern philosopher. But the fact that justice is always (and solely) a standard concept that merely qualifies natural power and law – and not vice versa – is precisely what prevents it from being a value theory of justice. Justice never classifies anything; it only qualifies it. As a standard measure of natural power, Spinoza could have called it something else entirely (equality, proportion, even-handedness, balance, etc.), in which case there would be no need to pose the question whether there was a theory of justice at all. In the end, the novelty of Spinoza’s perspective on the

22 This is Hans Kelsen’s famous legal positivist thesis: see H. Kelsen, Introduction to the Problems of

Legal Theory, trans. Bonnie Litschewski-Paulson and Stanley L. Paulson (Oxford: Clarendon, 1992), 56.


suum cuique consists simply in regarding it as synonymous with his philosophically complex notion of equality.

Documents

run.unl.pt Web view(Indianapolis: Hackett, 1998). References are to Carl Gebhardt ... Spinoza studies have paid little ... he does not know what the word