1 Introduction
Andreas Hojer (1690â1739) is arguably one of the most fascinating but understudied figures in the early enlightenment in Denmark. Hailing from Schleswig-Holstein, Hojer studied in Halle under Christian Thomasius (1655â1728), where he became fascinated with the new teachings on natural law and the law of nations. His first published works were an academic exercise on the (non-)prohibition of incestuous marriage by divine law, the De nuptiis propinquorum iure divino non prohibitis [...] diagramma, and a short history of Denmark.1 Both works led him into polemics and rivalry with Ludvig Holberg (1684â1754), who is now widely considered the (only) major figure of the early Danish enlightenment. Having successfully weathered a storm over his work on marriage, Hojer was employed in a string of positions, including royal historiographer and JustitsrÃ¥d, before being appointed the first ex officio professor of the law of nature and nations at Copenhagen University in 1734.2
No substantive account of his natural law theorizing and its political and intellectual significance has thus far been attempted. An informative and detailed biography of Hojer was published in 1961, and Hojer is mentioned in the standard histories of jurisprudence in Denmark.3 But in neither case is there any detailed discussion of his teachings on natural law.4 This is perhaps because the sources are rather disappointing. According to a lecture catalogue, Hojer lectured publicly on âthe law of nature as well as the precepts of moral philosophyâ in 1736â1740.5 But seemingly no notes from Hojerâs lectures on natural law survive. Instead, the most important sources for Hojerâs teaching on natural law are his programme or manual for Danish students of law from 1736, the Idea iurisconsulti danici (with a Danish translation the following year), and his inaugural dissertation at the occasion of his appointment to the professorship of natural law, De eo quod iure belli licet in minores, published the year before.6 Of these two, the latter provides the most substantial view of his mature thoughts on the law of nations and natural law. To this might be added his early Diagramma, which was, however, published eighteen years before he started lecturing.
This chapter offers a characterization of Hojerâs theory of natural law and the law of nations on the basis of his inaugural dissertation De eo quod iure belli licet in minores and its intellectual and political significance in early-eighteenth-century Denmark-Norway. The following section briefly outlines the intellectual context of natural law theorizing in Copenhagen around 1700. The chapter then proceeds to outline the political context of the conflict with the dukes of Holstein-Gottorp over the dominion of Schleswig, followed by a discussion of the polemics on this question during the Great Northern War. This provides the background for a detailed analysis of Hojerâs inaugural dissertation, on the basis of which the chapter offers a concluding interpretation of Hojerâs natural law profile and its significance.
2 Natural Law in Copenhagen in the Early Eighteenth Century
Although Hojer was the first to hold a professorship in Copenhagen in the law of nature and nations, he was not the first to work on the discipline or teach it. The subject had been taught there since the 1690s, by the Kiel-educated Henrik Weghorst (1653â1722) and by Christian Reitzer (1665â1736), who had conducted much of his studies under Christian Thomasius in Halle before being appointed professor of law at Copenhagen University. Each published several shorter works on natural law.7 In addition, in 1716 Ludvig Holberg had published the first compendium on natural law in the Danish language, drawing on Hugo Grotius, Christian Thomasius and especially Samuel Pufendorf.8 Finally, the likewise Halle-educated Christoph Heinrich Amthor (1678â1721), professor of natural law, public law and politics at Kiel University, had published works in favour of the Danish monarch Frederick iv during the Great Northern War. For this service he was awarded positions as JustitsrÃ¥d and royal historiographer. Although he published little on natural law in Copenhagen, where he died in 1721, he published several polemical works on the conflict with Holstein-Gottorp during the war, and his lectures on ethics, natural law and decorum were published posthumously in 1738.9
In the years before receiving the professorship in natural law, Andreas Hojer had in more than one way taken up the mantle from Amthor. Apart from continuing Amthorâs work on the history and life of Frederick iv, he had also defended Danish interests to the south. When Denmark-Norway came into conflict with the free imperial city of Hamburg, as a consequence of the latter setting up a new exchange bank and refusing to accept Danish currency on equal rates, Hojer advised the Danish government on the best measures to take in accordance with the law of nations, and also published anonymous polemical works on the conflict intended to sway public opinion towards Denmark-Norway.10 It is thus not surprising that when, in a letter of May 1735, Hojer mentioned a desire to choose a topic for his inaugural dissertation that would please the king, Danish political interests to the south were predominant. The first potential topic concerned what was allowed in war against minors, the second that Denmark had never been a feudal vassal of the German Empire, the third concerned the Emperorâs rights to mint coins (against Moser), the fourth the Emperorâs rights over the river Elbe, which had been bestowed on Hamburg, and the final one concerned the east Frisiansâ status by public law. Of these, Hojer eventually chose the first.11
To understand why Hojer chose that particular topic, we need to look into the larger intellectual and political context. All of Hojerâs suggested topics concerned Denmark-Norwayâs political interests to the south, and his final choice of subject tapped directly into the political-legal debates of the Great Northern War.
3 Denmark-Norway in the Great Northern War
In the Great Northern War of 1700â1721, Denmark-Norway was allied with Saxony-Poland and Russia against Sweden. To the south of Denmark was the ducal house of Schleswig-Holstein-Gottorp. The Gottorp family was a cadet branch of the Oldenburg family in Denmark, which had been vassals of the Danish crown until the mid-seventeenth century, when Sweden had forced the Danish king to accept the sovereignty of Gottorp.12 For most of the war, the ruler of Gottorp was the underage duke Charles Frederick (1700â1739), and although Gottorp had adopted a position of neutrality it did not escape being drawn into the war. At the outset of the war, Frederick iv of Denmark-Norway invaded and occupied the ducal lands in Schleswig-Holstein.13 Initially, Frederick iv was forced to withdraw and sign the Peace of Travendal in 1700, promising not to engage in further hostilities against Sweden and to respect the sovereignty of Holstein-Gottorp over its lands.
Frederick iv re-entered the war in 1709, however. When Stenbock, the Swedish field marshal, led a Swedish army into northern Germany in 1712, the war took a decisive turn. Hard pressed by united Danish, Saxon and Russian forces, Stenbock retreated northwards into Schleswig-Holstein. At this point, the ministers and âadministratorâ (guardian) of the young Charles Frederick decided to offer Stenbock protection in the main Holstein-Gottorp fortification at Tønning at the mouth of the river Eider, in southern Schleswig. This was done in secret, as it was arguably contrary to Holstein-Gottorp neutrality in the war, declarations of which were simultaneously given to King Frederick iv. Danish forces besieged Stenbockâs forces at Tønning, forcing them to surrender in 1713. This led to the discovery of documents allegedly proving the duplicity of the Holstein-Gottorp ministers, and subsequently to Danish occupation and sequestration of the Gottorp lands in Schleswig and Holstein.
At the end of the Great Northern War, the peace treaty of Frederiksborg (1720) confirmed Danish dominion over Schleswig, while the German Emperor Charles vi, to whom duke Charles Frederick had appealed as his supreme liege lord, secured the restitution of the Gottorp possessions in Holstein.14 This would not be the end of the matter, however, for Charles Frederick would continue campaigning, now from Russia, for the restitution of his lands in Schleswig as well, a question in which most of the major European powers would regularly become involved.15
While Denmark concluded a treaty with both Russia and Vienna in 1732 according to which Denmark would pay Charles Frederick two million Rigsdaler (Rdl.) in return for Gottorp renouncing its claims to Schleswig, neither Russia nor the German Emperor had been able to persuade Charles Frederick to give his consent to this.16 As such, the question of the legitimacy of the Danish sequestration of the Gottorp lands became a bargaining chip in the negotiations during the Polish War of Succession (1733â1735/1738), and the Danish crown sought assurances for its possessions from all of the powers involved, each giving or questioning such assurances in turn, according to their own interests and expediencies.
4 Amthorâs Legitimation of the Danish Conquest
There clearly was a great deal of power politics involved in the question of the recognition of the Danish sequestration of Schleswig, but since any recognition had to take the form of treaties, there was equally a question of legal and moral legitimation.17 The first wave of polemics came immediately after the Danish conquest of Tønning and occupation of Schleswig in 1714â1715, while Hojerâs intervention came in August 1735, two months before the peace preliminaries of the Polish War of Succession in October 1735 and three years before the final settlement in 1738.
During the pamphlet war following the fall of Tønning and the Danish sequestration of Gottorp lands, the Danish case was chiefly made (anonymously) by Christoph Heinrich Amthor, the former professor of natural law at Kiel University. In the In iure et facto Gegründeter Beweis der vielfältigen Treulosigkeiten (1715), Amthor answered two Holstein-Gottorp pamphlets: the Succincte Deduction and the In facto gegründete umbständliche Nachricht from 1714.18
Central to the Danish case was the argument that Gottorp had broken its treaties and reneged on its promise of neutrality by giving Tønning over to Stenbock and the Swedish army. In so doing, Gottorp revealed itself to be an enemy of Denmark-Norway, a fact further corroborated by the secret treaty and articles that had been concluded between the House of Gottorp and field marshal Stenbock as representative of the Swedish king, and that had duly been published when they fell into Danish hands.19 This in turn justified the occupation and eventual sequestration of Gottorp lands by Frederick iv. As Amthor argued, when Gottorp assisted the Swedish army and let it into Tønning, âHis Royal Majesty of Denmark was given most necessary cause, according to all laws of nature and of nations, to seize the Ducal lands, and defend himself as far as possible against this new approaching enemy together with the oldâ.20 As such, Frederick iv was further justified in sequestrating the Gottorp lands not just in Schleswig but also in Holstein, to prevent further Gottorp aggression and ensure the security of his realm.21
Faced with the occupation and sequestration of their lands following the defeat of the Swedes and the fall of Tønning, and the uncovering of documents supposedly proving their duplicity, the Gottorp ministers and pamphleteers adopted several arguments. First and foremost, they argued â mainly on the basis of the legal, political and military history of Denmark-Norway and Holstein-Gottorp â that Gottorp had not violated its obligations of neutrality in admitting Stenbockâs Swedish army into Tønning. It was in fact Denmark that was the true aggressor, declaring war against Sweden in contradiction of existing treaties with Gottorp. The authority of Hugo Grotius was cited to argue that Gottorp was thereby absolved of obligations towards Denmark.22 At the same time, it was also denied that Stenbock had been invited into Tønning and asserted that it had happened without the knowledge and consent of duke Charles Frederick. These assertions were marshalled to argue that the sequestration was illegal and that although Frederick iv might think himself injured by the guardian of Charles Frederick, he, the Danish king, should nevertheless restore the lands to the young duke, âan entirely innocent young lordâ. To achieve this purpose, the Gottorp ministers appealed to the Imperial Diets and the care of the Emperor as the âsupreme guardianâ (Ober-Vormündische Fürsorge) of Charles Frederick.23 Another pamphlet referred to a treaty concluded between Gottorp and Prussia as well as other declarations to show that the âunbiased powersâ (ohnpartheyische Puissancen) guaranteeing the Westphalian, Northern and other recent peace treaties were sympathetic to the plight of a âstill minor prince facing utter ruinâ and regarded the Danish occupation as âunjust and insufferableâ.24
In his replies, Amthor constructed a section-by-section rejection of the Gottorp case. This included a detailed legal interpretation of the initial division of Schleswig-Holstein between Denmark and Gottorp as well as subsequent treaties. He also argued in detail that Gottorpâs actions in Denmarkâs war with Sweden were in contradiction of its obligations as a neutral party, according to the laws of nature and nations, drawing on Hugo Grotiusâs De iure belli ac pacis, as well as more recent discussions by Johann Heinrich Boeckler.25 What is particularly interesting for our purposes, however, is Amthorâs treatment of the Gottorp pamphleteersâ appeal to and use of the minority status of Charles Frederick. As we have seen, Gottorp used the minority of Charles Frederick to argue that he was not party to the administratorâs actions, and in particular to appeal to the protection of the Emperor (as supreme guardian) and other major powers within the legal framework of the imperial constitution and European peace treaties. This had the further effect of constituting Frederick ivâs status in the conflict as a fellow vassal of the Emperor rather than sovereign king of Denmark-Norway. In contrast, Amthor construed the issue strictly as one pertaining to the law of nature regulating the conduct of war between two independent states.
At first, Amthor argued that while the minority of the Gottorp duke had been used to create sympathy for his case, the Gottorp pamphleteers had avoided the actual status controversiae in an attempt to conceal the injustice (Unfug) of their claim. The real issue or âstatusâ, according to Amthor, was âwhether an underage prince or ruler duly has to answer for what has happened during his minority, if he thereby suffers considerable damageâ.26 In other words, the issue was whether the young Charles Frederick should be obliged to accept the sequestration of his lands by Frederick iv as a consequence of the Gottorp violation of neutrality during his minority. Those who might be inclined to answer in the negative should be considered, asserted Amthor, to be led by their passions or careless ignorance of the common law of nations (allgemeines Völcker-recht).27
Amthor argued that the fundamental error of this position was to assume that since there were provisions in civil law (in foro civili) protecting minors against damages resulting from the actions of their guardians, this would apply to an underage prince as well. But this was to mistakenly confuse the civil state of citizens with the state of nature in which rulers exist with regard to one another.28 Reason itself showed, he argued, that to accept the non-responsibility of underage princes (exceptio minorennitatis) would be to adopt a principle that was contrary to the entire sociality of states (Völcker-Socialität). It would endanger the security of all states neighbouring a state which had a minor ruler, for the latter would be able to do whatever it wanted without fearing the consequences.29 In short, whatever was done by the guardian of a minor ruler would have to be considered done by the ruler himself. Otherwise, Amthor argued, citing Pufendorf and Barbeyrac, âthere would be no true and faithful trust between such a prince and his neighbours, and consequently, as no reasonable moral philosopher can deny, no one would have anything to do with himâ.30 âThese natural reasons of rational moralityâ, would, Amthor trusted, suffice to show that the âpresent minorityâ of Charles Frederick of Gottorp âcan in no way release him from having to give satisfactionâ for breaching the peace against Denmark.31
Whether Amthorâs intervention on Danish side proved significant or not is difficult to say. Regardless, the debate indicates the significance of academic natural law and law of nations in early-eighteenth-century Denmark-Norway, as elsewhere in Europe. Academic expertise in the law of nature and nations was absolutely essential in maintaining Danish political interests against the arch-rival Sweden and its close ally to the south. The peace treaty of Frederiksborg in 1720 confirmed the Danish sequestration of the Gottorp lands in Schleswig. But, typically of such treaties, this was not, as we saw, the final word in the matter, and Hojer would return to the subject fifteen years later, under Christian vi, Frederick ivâs son and successor.
5 Hojerâs Choice of Topic
This, then, was the background to Andreas Hojerâs choice of the topic for his inaugural dissertation. Appeals to Charles Frederickâs minority had been one of several arguments drawn upon by Gottorp pamphleteers in trying to establish the illegitimacy and illegality of the Danish sequestration of Gottorp lands and in seeking to secure international support for their restitution. In this connection, Gottorp had primarily appealed to the imperial constitution and prior treaties; it was Christoph Heinrich Amthor who first established Charles Frederickâs minority as an issue specifically of the law of nature and nations, in order to prove â in brief â its irrelevance on those grounds. As such, Hojerâs dissertation simply took up in greater detail a topic established by Amthor.
Hojer knew the history of the Great Northern War very well and was most likely conscious that he was taking up a topic first established by Amthor, even if he did not say so explicitly. One of Hojerâs first official appointments by the Danish monarch had been as royal historiographer, in 1721, replacing Amthor; this was, on Amthorâs request, to continue the latterâs history of Frederick iv.32 Hojer finally completed a history of King Frederick ivâs reign under his son, King Christian vi, around 1734.33 Much of the work dealt in detail with Frederick ivâs role in the Great Northern War and the conflict with Gottorp. Hojer had conducted extensive archival studies for his work, and described, among much else, Gottorpâs duplicity in simultaneously assisting Sweden and giving assurances of neutrality to Frederick iv, the Danish siege of the fortress Tønning and the subsequent conflict over the justification of the Danish occupation, including appeals to the minority of the Gottorp ruler.34 He was clearly familiar with Amthorâs role as anonymous polemicist for the Danish side and his writings in this capacity. The causes of the war, Hojer explained, âcan easily be understood from the published declarations and the Amthorian writingsâ, as well as from the Swedish intrusions in recent years. In this connection it was particularly unfortunate that âit had not been common in Denmark to call upon people knowledgeable of the law of nature and of nations, of public law, as well as of history and good policy, in controversies over matters of state [Staats-Deductionen]â.35
These were precisely the topics on which Hojer had worked to establish his expertise, from his early work on marriages and the history of Denmark to his later defences of Denmark in the conflict with Hamburg. The passage was a forthright call for the necessity of expertise in natural law and history, and at the same time of Hojerâs own usefulness, for pursuing the political aims of the Danish monarchy. The inaugural dissertation thus gave Hojer the opportunity to demonstrate this. That the dissertation demonstrated an expertise in natural law was emphasized explicitly in the preface. The topic, what the right of war allowed against minors, was most appropriate for the discipline but had been discussed inadequately and by few. That it was also a question of the highest political interest (as he had emphasized in a private letter) was only hinted at â an âillustriousâ issue âamong others, that are discussed in our timeâ36 â but was quite obvious to anyone with just a minimum of political awareness.
6 Hojer on the Right of War against Minors
The dissertation itself can be divided into four parts. Befitting an academic disputation, Hojer began by specifying the questions that must first be answered in order to determine the rights of war against minors: first, what is the right of war (ius belli); and second, what does it mean to say that someone is a minor? On this basis, Hojer then discussed the rights of war against minor subjects and finally the rights of war against minor princes. Throughout the dissertation, Hojer amply demonstrated his expertise in the âmodernâ natural law pioneered by Hugo Grotius and particularly Samuel Pufendorf and Christian Thomasius, making use of the theoretical innovations and distinct methods of the latter two on critical and fundamental points. However, he followed neither of them slavishly, siding with thinkers such as Gottlieb Gerhard Titius and Christian Gottlieb Schwarz against Pufendorf, and betraying influences also of others of his own generation, such as Michael Heinrich Griebner, on the categorization of the parts of natural jurisprudence.
Hojer began by defining the right of war (ius belli) in line with the Pufendorfian conception, according to which it was derived from natural law, or ius universale. âThe right of war is that part of universal law which defines the duties of those waging war according to the dictates of right reasonâ concerning what is necessary for conserving human society.37 This was, as Hojer saw it, now the consensus of the learned community.38 It was a position that departed from Grotiusâs conception of the law of nations as distinct from the law of nature and a part of human voluntary (âpositiveâ) law. The latter had been the position of Samuel Rachel in Kiel and later his student Henrik Weghorst in Copenhagen, and it was not the only view explicitly singled out for criticism in Hojerâs dissertation.39 To Hojer it was an equally serious mistake to try to define this law on the basis of Roman law, or indeed that of other people.40 This did not mean that the inquiry into the laws of various states did not play a role in Hojerâs argumentation, but, as we shall see, this did and could not serve the purpose of determining the laws or rights of war. Hojer then explained that the ius which governs the âhuman raceâ is of a twofold kind: perfect and imperfect, according to which the resulting duties were either commanded or merely permitted. Thus the âright of warâ consisted of the precepts of universal jurisprudence determining the perfect and imperfect duties of those waging war, that is, what was prescribed or forbidden and what was allowed or licit.41
Hojer went on to discuss the definition of minority. He presented a wide-ranging survey of the status of minors in various European laws, quoting passages from Greek and Roman law, ancient Germanic law, including Frankish and Anglo-Saxon law, old Danish and Jutish law, as well as the laws of various northern German cities.42 All European laws, Hojer observed, agreed in viewing minority as an age between childhood and adulthood (legitima aetas), where a person was in need of a guardian because of a certain defect of reason and inconstancy of will. As such, the minor person could not legally decide his own affairs independently of a guardian. What these laws did not agree on, however, was exactly what age constituted this minority status.43 This showed, argued Hojer, that it was impossible to determine minority on the basis of reason alone, that is, by natural law. It was a matter decided solely by the authority of the legislator, that is, positive law.44
In other words, for Hojer the historical investigation of (the incongruence of) positive laws served to show that there was no âinnate normâ stipulating minority status, but that it was a status instituted by human law or convention. The most that could be said of the âintentionsâ of the lawgivers, argued Hojer, was that they aimed to ensure that no harm was done to the state as a result either of the impunity of minors or of their defencelessness without guardians. While natural law prescribed this end, namely the security of the state and of minors, it left open the means to secure this end. However, in this as in so many other matters, the lawyers had started to confuse positive and natural law. They had thus, erroneously, concluded that the Roman and canon law stipulations were part of natural law, so that minors should receive restitution according to natural law irrespective of how they had been injured.45
This all necessitated a more careful examination of the question âAre there minors according to the discipline of natural law?â This Hojer could confidently deny by summarizing his argument from the preceding pages, and confirming it with references to Grotius, Pufendorf and Thomasius, as well as Ulrik Huber and M.H. Griebner.46 Hojer further strengthened his argument by distinguishing between different parts of natural or universal law. In the part dealing with the internal constitution of states, the ius civitatis universale, there could be said to be a place for minority. But this was precisely in the civil state and determined by positive law, as Hojer had previously explained.47 His topic was, however, a different part of the ius universale, that dealing with relations between states and as such the state of nature.
In the remainder of his argument, Hojer drew on the conceptual apparatus pioneered by Pufendorf, with its distinction between physical and moral entities and its discussion of different moral personae and moral states, to develop a consistent and rather radical position on the rights of war against minors. Simply put, Hojer argued that neither the physical constitution nor the civic status as child, minor or adult within a state was relevant when it came to inter-state relations and the rights of war. Rather, what was relevant was, in the case of rulers, the moral persona they carried as office-bearers (sovereigns) in their states, and, in the case of private persons, their moral persona as subjects of an enemy state and even their status as full enemies if engaged in hostile acts.
Hojer began by clarifying the characteristics of the natural state as opposed to the civil state. Following again the Pufendorfian position, he defined the natural state as one obtaining between free and equal persons. As such, the rights and duties of persons in a state of nature concerned only the conservation and preservation of themselves and their goods. From this it followed that there could be no minority status in the natural state, for minority entailed a relationship of dependence, and this would mean entering into a ârelationship either familial or civil, which would take the place of the earlier state of libertyâ. In their mutual relations, rulers and states were precisely âmoral personsâ in the natural state, enjoying the liberty, rights and duties constituting this state. The conclusion was, therefore, that such a moral person could not be considered a minor. âAgain, concerning complete societies and their rulers it is beyond any doubt that, although a king or a prince himself is a minor, considered together with his state and as its head, he cannot be considered by other free states as a minorâ.48
Having recounted a number of historical examples confirming his argument, Hojer went on to argue that the natural stateâs âignorance of minorityâ was even greater in case of war, so that the rights of war could show no respect for whatever minority status a person might have in their own state. Rather, âdisregarding any difference of age or authority, whoever is an enemy may be pursued by right of warâ.49 The rights of war were determined by the justice and intention of the party waging war. Whoever was waging a just war could rightfully do whatever was necessary to obtain the end of the war and the security of their own state. âIn short, whatever our safety or public security demands, or whatever can hasten peace or make it more constant and stable, all that not only may but even should be done by right of war to the enemy, even if a minorâ.50
The only exception Hojer was willing to make was that of infants, âwho in no way can inflict harmâ. Other than that, the only relevant distinction was according to the âstatusâ of the enemy, that is, whether he was a subject or a ruler.51 Accordingly, Hojer went on to discuss the rights of war against those two different classes of enemies. It is beyond the scope of this chapter to follow Hojerâs argumentation in all details in this regard. Suffice it to say that he allowed fairly widespread licence to rob, abduct or kill even unarmed enemy subjects insofar as they could assist the enemyâs war effort, or if it was a âwar of extinctionâ, which Hojer held to be a legitimate form of war.52 Thus Hojer argued with Caspar Ziegler against Grotius that a âright of retaliationâ was justified not only against the person who had transgressed, but against his whole people or state as members of a âmoral personâ.53 Armed minors were simply to be considered enemies: âhere we should consider arms and the intention to harm us, not ageâ.54 In short, âa person is an enemy when he can rightly be considered to be in the position of an enemy, regardless of age [ ... ]. He who assists the army of the enemy with arms, military works or advice, or who causes us injury, cannot be considered a minorâ.55
Turning to the case of a minor prince, Hojer reiterated the fundamentals of the universal right of war. He argued, first, that âthe natural state of equal liberty, the rights of which princes exercise among themselves, does not know minority or its benefitsâ; second, that, in war, whoever intends and is able to harm another should not be considered a minor but âa perfect enemyâ; and finally, that as far as actions are concerned which affect other rulers, âa ruler, as the head of his state and considered one moral body together with it, should always be considered of age (maior), as acting by his own right and wholly master of his own affairs, even if everything â in domestic and foreign affairs â is carried out in his name by guardians or administratorsâ.56
This position, Hojer argued, could not be denied without destroying all the principles of natural jurisprudence, as well as âits end and foundation, the peace of the human raceâ.57 Hojer emphasized that this was evident particularly from the characteristics of the natural state, but he also proceeded to prove his case, as had Amthor, from the necessity of ensuring order and safety in international affairs. If a prince or his successors could not be held responsible for what had happened during his minority, he would be able to act with impunity and no neighbours could be safe.58 This would endanger the security not only of neighbouring states but also of the minor prince himself and his state, as the neighbours would seek to remove him from the throne in the interest of their own security.59
Continuing to discuss the more specific rights of war against a minor prince, Hojer once again emphasized that such rights and obligations pertained not just to the prince but to the whole moral person of the state.60 No doubt with a view to the contemporary situation, Hojer argued that one could justifiably take into possession, exact tribute from and otherwise ravage the âdominions and landsâ of a prince who waged war against oneself, insofar as this was demanded by the reasons of war.61 Such rights of war also resulted, Hojer argued, from a prince aiding oneâs enemy even if this fell short of actual outright aggression. This was of course precisely what Charles Frederick had done by giving Stenbockâs army shelter in Tønning. In this case, Hojer cited Grotiusâs quotation from Agathias that âhe is an Enemy who does what pleases an Enemyâ.62 Against the objection that it would be more virtuous to conserve a minor prince, and restore his lands after hostilities had ended than to ruin him completely, Hojer answered that these were considerations of virtue and political prudence, not of justice or natural law. Natural law demanded that a state look to its own security also in the future, and in fact both virtue and prudence dictated that one should deprive an enemy of weapons and lands by which he could do one harm.63
Hojer concluded his inaugural dissertation by turning to the question of whether the rights of the victor resulted solely from the consent of the vanquished. This was again implicitly addressing the contemporary situation, for, as we saw, Charles Frederick had refused to consent to both the peace treaty of Frederiksborg and the settlement brokered by Russia and Vienna and thereby Danish dominion over his former possessions in Schleswig. According to Hojer, âthe victor enjoys the rights of victory and retains what he has justly occupied, even if the minor objectsâ.64 Hojer explicitly disagreed here with Pufendorf and Hobbes, according to whom the rights of the victor resulted only from âa pact with the defeatedâ who submitted to the will of the victors. Instead, he argued with Johann Friedrich Horn, G.G. Titius and C.G. Schwarz that by âthe victory itselfâ and the law of nature âarise supreme ruleâ over the vanquished and the occupied things, âapart from any preceding pactâ.65 This is because otherwise there would be no end to war, or war would be renewed on the pretext that consent had not been truly given, which would be contrary to the natural right of war. In fact, Hojer presented Pufendorf as having come to much the same conclusion, quoting a longer passage from De officio hominis et civis, where it was argued that a party engaging in war was held to have âtacitly consentedâ in whatever condition the war resulted in.66 All that therefore remained according to the law of nature was that the victor ensured his security and satisfaction, retaining as far as necessary the goods, lands and dominions of the enemy, defending and fortifying them to prevent further hostilities. That is: the Danish king should retain his possessions in Schleswig to pre-empt further danger arising from Charles Frederick allying with Sweden.
7 Conclusion: a Radical Pufendorfian in the Service of Denmark-Norway
On the basis of the preceding discussion and by way of concluding, we are now in a better position to address two questions. First, why was a professorship in natural law and the law of nations created at Copenhagen University and why was Hojer appointed? Second, why did Hojer choose for his inaugural dissertation the topic he did, and what does that tell us about his natural law profile?
Although the professorship in natural law and the law of nations was created with the new university statutes of 1732 and filled with the appointment of Hojer in 1734, there had been ongoing concerns with improving the teaching of that discipline for decades. There was thus a clear sense of the need to offer this new and popular subject to students in Denmark. What Hojerâs career and remarks emphasize is that an expertise in the subject was a political necessity. The Danish monarchs Christian V (grandfather of Christian vi) and Frederick iv needed to draw on experts in the field to justify their political interests domestically and abroad, particularly against Sweden and the dukes of Gottorp, but also vis-Ã -vis Hamburg and the German Empire more broadly.
Both of these needs could only have been accentuated by the Gottorp university in Kiel. Although the university of a very minor power, it was both geographically and, in many ways, intellectually closer than Copenhagen to the new developments in Germany. It had been one of the first universities to create a chair in natural law, which had been held by Samuel Rachel, who had used this expertise to defend Gottorp interests against the Danish kings in the later seventeenth century. Denmark-Norway simply lacked a comparable academic tradition and expertise, and accordingly had to draw on foreigners to supply this: that both Weghorst and Amthor were called from Kiel should not be explained only by its geographical proximity.
It would seem that both these concerns were present in creating the new chair in natural law. That Hojer was appointed to the position has been credited to his activities and writings on behalf of Danish interests in a conflict with the city of Hamburg over its refusal to accept Danish currency.67 Hojerâs eagerness to demonstrate the political utility of his expertise in natural law is evident from the topics he suggested for the dissertation. The topic of the rights of war against minors allowed Hojer to address both concerns. First, it held immediate relevance as the Danish dominion over Schleswig became a matter of discussion in the Polish War of Succession. Second, it was also the subject most suited to demonstrate his expertise in the field. It was the only topic that he himself characterized as pertaining to âthe law of nature and nationsâ, the others being topics of âius publicumâ.68
As we have seen, Hojer drew fully on the Pufendorfian conceptual framework of moral personae, and what has been termed Pufendorfâs conventionalist conception of natural law and morality. This indicates his personal interest in taking up the topic, as well as the distinctive characteristics of his natural law profile within the larger context of natural law theorizing and enlightenment thought in early-eighteenth-century Denmark-Norway. Hojer seems to have been particularly interested in the conventionalist theory of morality and politics suggested by Pufendorfâs theory of natural law, as well as its potential to fundamentally undermine contemporary ânaturalistâ conceptions of morality.69 During his studies in Halle, Hojer seems to have adopted Thomasiusâs interest in criticizing this naturalistic theory of morality, which Thomasius had characterized as the scholastic doctrine of perseitas, as well as an interest in pushing the Pufendorfian conceptual framework to its limits. In his dissertation on the rights of war against minors, and particularly in his work on the non-prohibition of incestuous marriages, Hojer was developing this agenda, reaching conclusions that, while perhaps serviceable to Denmarkâs absolute monarchs, went far beyond the moral commonplaces of his day, and even ours.70 That he could do so and still hold such influential positions in early-eighteenth-century Denmark is arguably what makes Hojer such an interesting figure and the question of his significance for the early enlightenment in Denmark so pressing.
Andreas Hojer, Kurtzgefasste Dännemärckische Geschichte vom Anfang dieses mächtigen Reichs bis zum Ausgang des XVII. Seculi (Flensburg: Bosseck, 1719); Andreas Hojer, De nuptiis propinquorum iure divino non prohibitis [...] diagramma (n.p.: n.n., 1718).
Troels G. Jørgensen, Andreas Hojer, jurist og historiker (København: Arne Frost-Hansens Forlag, 1961), 134. For the university statutes, see William Norvin, Københavns Universitet i Reformationens og Orthodoxiens Tidsalder, vol. 2 (København: Gyldendal, 1940), 114.
Jørgensen, Andreas Hojer, jurist og historiker; Ditlev Tamm, Juraen pÃ¥ Københavns Universitet 1479â2005 (København: Københavns Universitet, 2005), 66, 70ff, 92ff.
There is, however, a brief but indicative discussion of Hojerâs natural law theory in Knud Haakonssen, âHolbergâs Law of Nature and Nations,â in Ludvig Holberg (1684â1754): Learning and Literature in the Nordic Enlightenment, ed. Knud Haakonssen and Sebastian Olden-Jørgensen (London and New York: Routledge, 2017), 59â79, at 68â70.
âJus Naturæ nec non Moralis Philosophiæ Præcepta,â Lectiones publicae Professorum in Universitate Hauniensi (Hafniae: Ex Typographeo Regiae Majest. & Universit., 1604â1786). See also Holger Rørdam, ed., Historiske Samlinger og Studier vedrørende danske Forhold og Studier især i det 17. Aarhundrede (Kjøbenhavn: Gad, 1891â1902), IV: 146.
Andreas Hojer, Dissertatio iuris publici universalis de eo quod iure belli licet in minores, Vom Recht des Krieges gegen die Minderjährige (Hafniae: Typis Reg. Majest. & Universit. Typogr. Joh. G. Höpffneri, 1735); Andreas Hojer, Ideae Icti Danici partem 1. disputatione anniversaria expositam publico eruditorum examini subiciit Andreas Hoier (Hafniae: Typis Reg. Majest. & Universit. Typogr. Joh. G. Höpffneri, 1736); Andreas Hojer, Forestilling paa en Dansk Jurist, den 1. Part (Kjøbenhavn: Kongl. Majests. priviligerede Bogtrykkerie, 1737).
For a discussion of the natural law profiles of these first teachers of the subject in Copenhagen, see Mads Langballe Jensen, âContests about Natural Law in Early Enlightenment Copenhagen,â History of European Ideas 42 (2016): 1027â1041.
On Holbergâs natural law theory, including its different uses, see Knud Haakonssen and Sebastian Olden-Jørgensen, eds., Ludvig Holberg (1684â1754): Learning and Literature in the Nordic Enlightenment (London and New York: Routledge, 2017); Jørgen Sejersted and Eiliv Vinje, eds., Ludvig Holbergs naturret (Oslo: Gyldendal Akademisk, 2012).
Christoph Heinrich Amthor, Philosophia moralis seu doctrina de justo, honesto et decoro. Hierbey ist statt einer Vorrede vorangesetzet Authoris unvorgreiffliche Gedancken von der beqvemsten Methode, deren sich ein academischer Lehrer bedienen kan (Hafniae, Lipsiae: Joh. Nicol. Lossius, 1738). For Amthorâs biography, see Heiner F. Klemme and Manfred Kuehn, eds., Dictionary of Eighteenth-Century German Philosophers (London: Continuum, 2010), 17f.; Carl Frederik Bricka, ed., Dansk biografisk Lexikon tillige omfattende Norge for Tidsrummet 1537â1814 (Kjøbenhavn: Gyldendalske Boghandels Forlag, 1887), 1: 197f., available online at
Jørgensen, Andreas Hojer, jurist og historiker, 103f.
Andreas Hojer, â[Letter to an unnamed âMonseigneurâ]â, 28 May 1735, Royal Library, Copenhagen: MS Kall 383, 4to. The letter, as well as (very briefly) the inaugural dissertation, is summarised in Jørgensen, Andreas Hojer, jurist og historiker, 246â248.
For a brief overview of Danish-Gottorp-Swedish relations in the seventeenth and early eighteenth century, see Otto Brandt, Caspar von Saldern und die nordeuropäische Politik im Zeitalter Katharinas II., etc. (Erlangen; Kiel: Palm & Enke; Walter G. Mühlau, 1932), 3ff. The most detailed history is still Edvard Holm, Danmark-Norges Historie fra den store nordiske Krigs Slutning til Rigernes Adskillelse, 1720â1814, 7 vols. (Kjøbenhavn: Gad, 1891â1912). I will be drawing on both these works in my discussion of the Great Northern War below.
In the following, I am relying on the accounts in Holm, Danmark-Norges Historie; Brandt, Caspar von Saldern.
The circumstances and drafting of the peace treaty of Frederiksborg, as part of his detailed account of the Danish-Norwegian participation in the Great Northern War, can be found in Hojer, König Friederich des Vierten glorwürdigstes Leben, II: 19.
Holm, Danmark-Norges Historie, I: 48.
Ibid., II: 53.
For another study of the interplay between power politics and moral-legal legitimization, see Pärtel Piirimäe, âThe Capitulations of 1710 in the Context of Peter the Greatâs Foreign Propaganda,â in Die baltischen Kapitulationen von 1710: Kontext â Wirkungen â Interpretationen, eds. Karsten Brüggemann, Mati Laur, and Pärtel Piirimäe (Köln: Böhlau Verlag, 2014), 65â86.
[Christoph Heinrich Amthor], In iure et facto Gegründeter Beweis der vielfältigen Treulosigkeiten, So das Jetzt-regierende Allerdurchlauchtigste Königl. Dähnische Haus von dem Fürstl. Holstein-Gottorfischen bisher erlitten / Worin ⦠ausführlich gezeiget wird, Daà das Hertzogthum Schleswig durch offenbahre Rebellionen ⦠von der Krohne Dennemarck zum erstenmahl abgerissen, hernach durch gleich wenig zugelassene Felonien ⦠zur Souveraineté erhaben ⦠(Kopenhagen, 1715); [Anonymous], Succincte Deduction daà Seine König Majest von Dennemark des Hoch-Fürst. Hauses Holstein-Gottorp Aggressor seyn, 1714; [Anonymous], In Facto Gegründete umbständliche Nachricht, Wie Der Königl. Dänische Hoff Des Fürstl. Holstein-Gottorpischen Hauses Untergang und Ruin beständig gesuchet, auch aus einer solchen absicht weder Verträge, noch Friedensschlüsse jemahln gehalten ⦠/ Auff Gnädigsten Befehl publiciret Im Jahr 1714, 1714.
[Anonymous], Wahrhafter Abdruck Des In Händen habenden Original-Tractats nebst den Separat-Articuln / So Zwischen dem Fürstl. HauÃe Gottorff und Dem Königl. Schwedischen Raht und Feld-Marschall Graffen von Steenbock unterm 21ten Januarii Anno 1713. im Rahmen Sr. Königl. Mayst. von Schweden getroffen und geschlossen worden, umb Dadurch, ⦠das Gegen Ihre Königl. Majest. zu Dennemarck, Norwegen [et]c. und Dero Alliirte von Dem Fürstlichen HauÃe Gottorff begangenes treuloses und wieder alle Conventiones und Verträge, unverantwortliches und Friedbrüchiges Verfahren der gantzen unpartheischen Welt an den Tag zu legen (Kopenhagen: Königl. Maj. und Univ. privilegirten Buchdr., 1714).
âHiedurch bekahmen nun Ihro Königl. Majest. von Dännemarck nach allen Natürlichen / und Völcker-Rechten / höchstgemüssigten Anlasz / die Fürstlichen Länder einzuziehen / und so viel möglich sich dieses neuen zudringlichen Feindes mit dem Alten auf eins zuentschütten.â [Amthor], In Iure Et Facto Gegründeter Beweis, 70.
Ibid., 74.
Grotius, De iure belli ac pacis 2.15.§15, cited in In Facto Gegründete umbständliche Nachricht, para. 215.
Succincte Deduction, 11f.
âDasz hingegen auch andere ohnpartheyische Puissances des Fürstl. Hauses gegenwertige zerrüttung und Seiner unschuldigen lande verheerung ebenfalls vor ungerecht und unleydlich ansehen / wie ingleichen den für augen liegenden eussersten ruin eines annoch minderjährigen Fürsten höchstrühmlich behertzigen / ist theils aus dem sub lit. D. beygehenden art. 8. des zwischen Jhr. Königl. Majest. in Preussen und des Herrn Administratoris Durchl. errichteten tractat, theils aus einiger hohen Puissancen, welche die Westphälische / Nordische / Fontainebleauische / Altonaische und Travendahlische Friedensschlüsse zu garantiren übernommen haben / desfalls gegebenen Declarationen zu ersehen.â In Facto Gegründete umbständliche Nachricht, para. 220.
The reference is to Boecklerâs Quies in turbis sive societatis bellicae declinatio. [Amthor], In Iure Et Facto Gegründeter Beweis, para. 50.
âOb ein minderjähriger Printz / oder Potentate / desjenigen / was währender siner Minderjährigkeit geschehen / wann ihm daraus ein empfindlicher Schaden erwächset / billiger Weise zu entgelten habe?â Ibid., para. 63.
âLeuthe / bey denen die Passion, oder eine nachlässige Unwissenheit des allgemeinen Völcker-rechts prævaliretâ. Ibid.
Ibid.
Ibid., para. 64.
âWeil sonst bey der-gleichen Fällen / so lange der Fürst die Regierung nicht selber anträte / zwischen ihm und seinen Nachbahren keine Treu und sicherer Glaube mehr vorhanden seyn / einfolglich / wie kein verständiger Moraliste wird läugnen können / niemand mit einem jungen Fürsten würde zu schaffen haben wollen (gg).â Citing Pufendorf, De Iure Naturae et Gentium, iii, 10, §§2â3, and Barbeyracâs commentary in his French translation. Ibid.
âDiese natürliche Gründe der vernunfftmässigen Morale sind verhoffentlich zwar zulänglich gnug darzuthun / dass Ihrer Durchl. Hertzog Carl Friedrichs bisherige Minorennitæt das Haus Gottorff auf keinerley Weise von der Satisfaction dispensiren könne / die es Seiner Königl. Majest. von Dännemarck wegen des letzteren zudringlichen Friedens-Bruchs zu leisten schuldig ist.â Ibid., para. 65.
Jørgensen, Andreas Hojer, jurist og historiker, 76, 89ff. See also documents in Rørdam, Historiske Samlinger og Studier, I: 375f and II: 375ff.
Jørgensen, Andreas Hojer, jurist og historiker, 116; Rørdam, Historiske Samlinger og Studier, iii:495. Although it would not be printed until 1829: Hojer, König Friederich des Vierten glorwürdigstes Leben.
Hojer, König Friederich des Vierten glorwürdigstes Leben, I: 249ff., for Hojerâs account of Gottorpâs appeals to the dukeâs minority status, see p. 253. For a brief summary of the work, see Jørgensen, Andreas Hojer, jurist og historiker, 117â123.
âAllein zum Unglück war man in Dännemark von vielen Jahren her nicht gewohnt zu Staats-Deductionen Leute, die der Natur- Völker- und Staatsrechte, wie auch der Ante actorum und der rechten Politik kundig, aufzusuchen.â Hojer, König Friederich des Vierten glorwürdigstes Leben, I: 182.
Hojer, De eo quod iure belli licet in minores, fol. Ar.
âIus belli illa pars Iuris universalis, quae officia belligerantium ex dictamine rectae rationis definit.â Ibid., 2.
Compare Hojerâs comments on ius gentium in Hojer, Ideae Icti Danici partem 1., 27f.
For Rachel, see Tetsuya Toyoda, Theory and Politics of the Law of Nations: Political Bias in International Law Discourse of Seven German Court Councilors in the Seventeenth and Eighteenth Centuries (Leiden; Boston, MA: Martinus Nijhoff Publishers, 2011), chap. 3. For Weghorst, see his Compendii juris naturæ, Dissertatio prima (Hafniae: Joachim Smetgen, 1696), 22f.
Hojer, De eo quod iure belli licet in minores, 2.
Ibid., 3f.
Ibid., 3â13.
Ibid., 5.
âUtpote subnixae, hac quidem in materia, solo legislatorum arbitrio, nequaquam autem stabili & immota iusti & aequi ratione, quam innata nobis norma subministret.â Ibid., 10.
Ibid., 13.
Ibid., 13f.
Ibid., 15.
âDe integris Societatibus earumque Rectoribus adhuc magis est indubium, quantumuis Rex aut Princeps ipse sit Minor, eum tamen vt caput suæ reipublicæ vna cum illa spectatum non posse ab aliis liberis statibus pro Minori haberi.â Ibid., 16.
âAdeoque ante omnia notandum est, Ius belli nullum nec habere nec admittere respectum Minorum, sed absque ullo vel aetatis vel auctoritatis discrimine, quotquot inter hostes sunt, iure belli persequi.â Ibid., 17.
âquicquid vel salus nostra vel publica securitas postulat, aut ad pacem vel accelerandam vel eo constantius stabiliendam facere potest, id omne ex belli iure in hostem vtut Minorem recte & absque iniuria fieri non potest modo, sed debet etiam;â ibid., 18.
Ibid., 19.
Ibid., 20.
Ibid., 21.
âArma hic & nobis nocendi animus spectandus est, non anni.â Ibid., 22.
âHostis qui est, hostis loco recte habetur, in quacunque sit aetate [â¦] Minor denique non habetur, qui hostium exercitium vel armis, vel militari opera vel conciliis firmat, aut nobis damna infert.â Ibid., 23.
âPrincipem ut caput suae reipublicae & unum cum illa corpus morale spectatum, in actibus, qui alios status aut Principes attingunt, semper haberi pro Maiore; qui sui iuris, suarumque rerum plenus sit arbiter, etiamsi omnia domi forisque ipsius nomine a Tutoribus aut administris gerantur.â Ibid., 24.
Ibid.
Ibid., 25.
Ibid., 30f.
Ibid., 35.
Ibid., 37.
Ibid., 39. I am here citing from the English translation in Hugo Grotius, The Rights of War and Peace, ed. Richard Tuck (Indianapolis, IN: Liberty Fund, 2005), book iii, chap. 17, §3.
Hojer, De eo quod iure belli licet in minores, 41â43.
âfruitur tamen victor iure victoriae, & retinet, quae iuste occupavit, etiam reclamante Minoreâ. Ibid., 44.
Ibid. Reading ânaturaeâ for ânaturaâ.
Ibid., 45.
Rørdam, Historiske Samlinger og Studier, IV: 135f., see also iii: 516; Jørgensen, Andreas Hojer, jurist og historiker, 143.
âDisp. Juris Nat. & G.â Hojer, â[Letter to an unnamed âMonseigneurâ]â, [2].
For a characterization of Pufendorfâs natural law theory in this regard in the context of discussing Holberg, see Haakonssen, âHolbergâs Law of Nature and Nations,â 68â71.
An influential proponent of the scholastic doctrine of âperseitasâ in Denmark around 1700 was Henrik Weghorst, for which see Jensen, âContests about Natural Law in Early Enlightenment Copenhagen.â For Holbergâs criticism of Hojerâs Diagramma on much more conventional grounds, see Haakonssen, âHolbergâs Law of Nature and Nations,â 71.
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