Milton's Legal Duel: Nature and Norm in Paradise Regained and Samson Agonistes

Abstract

Abstract: Scholars have often linked John Milton with natural law; this article argues instead for the strong interest of Paradise Regained and Samson Agonistes in legal positivism. By the mid-seventeenth century, thinkers like Hugo Grotius and Thomas Hobbes were in their different ways proposing a natural law based on self-preservation rather than theology, and as a result natural law became increasingly indistinguishable from political defactoism and reason of state. Milton struggled more than is generally recognized with the threat this naturalism posed to free will and moral value, and he responded by anticipating the work of nineteenth- and twentieth-century thinkers like John Austin, Hans Kelsen, and H. L. A. Hart, who made positivism central to liberal jurisprudence. Positivism asserts legal norms to be based on their authoritative source rather than their conformity with fact or reason, and thus positivist legal theory offers an escape from ethically minimal natural law. Positivism, though, also relies on preexisting, potentially arbitrary authority and makes penal sanctions constitutive of legal order, and these qualities paradoxically bind positivism to the worst features of naturalism: determinism and coercive violence. Milton grapples with precisely these issues in his 1671 poems, and his conflicted embrace of positivism illuminates a number of puzzles long noted in these works.