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chapter 3: On Human Action in the Divine Court 1 - Gershom Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael 
Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed. James Moore and Michael Silverthorne (Indianapolis: Liberty Fund, 2002).
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On Human Action in the Divine Court1
[Carmichael disagreed fundamentally with Pufendorf’s opinion that natural law must abstract from belief in the immortality of the soul and an afterlife. Pufendorf had said in his preface: “The greatest difference [between natural law and theology] is that the scope of the discipline of natural law is confined within the orbit of this life” (Pufendorf, On the Duty of Man and Citizen, p. 8). In a note to this preface Carmichael offered the opposite point of view.]
We are taught by the light of nature as the fruit of acting well, to hope, and indeed to expect, not only felicity in this life in particular (although this is most closely attached to duties enjoined by natural law) but also, in general, some greater happiness or greater alleviation of misery, if not in this, at least in a future life, than evildoers will be able to attain. Furthermore, if any way of obtaining the greatest happiness after this life is left to man, [we are] to conceive of the hope of it as the more probable, the more, in the individual actions of life, we render ourselves obedient to the divine law. It is not correct, therefore, to say that the end of the discipline of natural law is confined to the scope merely of this life. [“Author’s Preface,” 6.1]
[Carmichael also disagreed with Pufendorf’s position (“Author’s Preface,” secs. 6 and 7) that natural law, like human jurisdiction, “is concerned only with a man’s external actions and does not penetrate to what is hidden in the heart …” (Pufendorf, On the Duty of Man and Citizen, p. 9). Carmichael comments:]
Since the law of nature has been ordered and sanctioned by God himself, we are warranted in saying that its edicts are particularly applicable in the court of God and of conscience and, just as evidently, direct the internal motions of the mind as well as external modes of behavior. But the contrary follows from the premises established by Pufendorf; although he attempts to soften the actual conclusion and seems to hint elsewhere at something else.2 See the criticism of Pufendorf by the distinguished Leibniz (the so-called Anonymous) in Barbeyrac’s examination of this subject.3 [“Author’s Preface,” 6.3]
The internal acts of the mind are themselves human, and so far as external acts depend for their direction on internal acts, they derive their qualification [as human] from that source. It is not necessary [for acts of the mind] that there be a previous dictate of the intellect and command of the will: this would involve an infinite regress. It is enough that internal conscience and self-approval be intimately and essentially involved in all those [mental actions]. Human actions therefore are those actions which above we called free and taught that they are in every case and peculiarly subject to moral rule (pp. 25–26). This is not the place to discuss whether the schools are right to call other motions that proceed from our faculties human actions.4 [I.1.2.i]
It is a dispute about a word whether judgments, together with the operations which the mind performs upon ideas previously impressed upon it by objects, should be counted as acts of intellect or will. It makes no difference how we settle it, provided that we always recognize that the mind behaves actively in them, and hence freely, and that those acts therefore (contrary to what some think) are not devoid of morality. It is therefore perhaps a scholastic prejudice that all our modes of thought must be reduced to two or, as it is commonly expressed, must be attributed to one or other of two faculties; a discussion of this is more appropriate in a different forum.5 [I.1.4.i]
There are two senses in which a man is said to be able to understand the natural law or certain of its precepts. In the first sense this phrase is taken in a wide sense to mean only that a faculty of reason has been implanted in man by God, and signs of the true and the good have been manifested in nature, by means of which a man might get to know the difference between what should be done and what omitted, if he used that faculty rightly. In the second sense, the phrase, taken more narrowly, means that there is such a vigor of intellect in a man and such clear signs in nature of a law which prescribes some things and forbids others, that he could understand the duty laid upon him by law, using the ordinary diligence which one who is not plainly negligent of duty is rightly expected to use. These two senses must be carefully distinguished. For in the former sense, what is asserted here is true of all men; but in the latter sense (which Pufendorf seems to have had particularly in mind),6 it is true only of men of mature years and sound mind. In the former sense, it should be extended to all the precepts of natural law, as each man has opportunity to observe them; in the latter sense, only to the more general and more obvious precepts. Finally, in the former sense, the law must be supposed to be knowable so that one may be condemned for violation of it even in the court of God, since not even in the court of God is one thought to be personally responsible for violating a law which was not properly declared to him, that is, a law which he was capable of understanding by his own nature but which was not clearly signified to him; but in the latter sense, the necessity of supposing the law to be knowable is restricted to the human court. [I.1.4.ii]
[Pufendorf had defined right conscience (conscientia recta) as a well-informed understanding of “what is to be done or not done,” which is supported by “certain and incontrovertible reasons.” He acknowledged that most persons do not act upon such an understanding; they are guided rather by “probable conscience.”7 Carmichael observed:]
The distinguished Gerhard Titius, Observations, no. 17, seems to criticize this term [“right conscience”] unnecessarily, contending that conscience as here defined ought to be called certain conscience, inasmuch as probable conscience is also right. But against this one must say that merely probable conscience, even though it is sometimes true (which is all that the author admits) yet falls short of rectitude precisely insofar as it fails to achieve certainty. For inasmuch as there are sure indications of promulgated law exhibited to men, one should permit as little latitude as possible in the court of God to a kind of culpable weakness when men claim that they do not know with certainty the provisions of the law. Besides, the distinguished commentator admits at Observations, no. 19.4, that probable conscience is not sound, but requires a remedy. [I.1.5.iii]
If it is a question of what is required in the divine court, without a doubt conscience must be rightly instructed, and one must embrace what is supported by sound reasons. But secondly, if it is a question of choosing the [course of action] which is merely less dangerous, then one must adopt the rule proposed by Pufendorf,8 provided that it is only a question of whether to undertake or omit some action. Sometimes, however, it is clear that one or the other of two things must be done; that in fact it is less harmful that one of them be done than that both be omitted. Then, and even though it is doubtful whether either course of action is right, we must still exempt such cases from the rule proposed by Pufendorf, as Grotius correctly taught,9 and which Pufendorf and Barbeyrac improperly reject.10 [I.1.6.i]
It is not without justification that the distinguished Titius here reproaches the author for treating spontaneity and liberty as different conditions of the will or of its acts, despite the fact that by the definitions of both given here, he makes the former a part of the latter. For he places spontaneity in an indifference to act or not to act; but he places liberty both in that indifference to act or not to act which is called contradiction, and in the indifference to doing this [particular] thing or its contrary, which is called contrariety.11 But it is of greater importance to observe that neither the indifference of contradiction nor that of contrariety belongs to the genuine spontaneity or liberty of the will or of its acts. Man does indeed experience that he is an agent who is not only spontaneous but free, i.e., that he acts from a principle which is not only internal but rational, by means of a determination of the will, and the fact itself proclaims that this condition is requisite to the morality and imputability of human actions. But neither reason nor experience suggests that absolute indifference opposed to all previous determination is necessary for this effect, or that it is actually found in our freest actions.12 On the contrary, that hypothesis not only derogates from the absolute power of the Supreme Deity over created things, but also is opposed to the very nature of causality. For just as no effect exists without some adequate cause, so neither is it possible to acknowledge that any cause is adequate which does not determine the existence of the effect. Nor can any effect be determined to exist by a cause containing nothing that requires its existence rather than its nonexistence. Compare the Demonstration of God of the distinguished [Joseph] Raphson, part II, proposition 11.13 And of course it is far from being the case that man is made the master of his own action by absolute indifference in acting; on the contrary, the action itself is conceived, on that hypothesis, as some sort of entity which is independent or born as of its own accord from nothing. But these points belong elsewhere.14 [I.1.9.i]
I have sufficiently indicated in the preceding paragraph what sort of spontaneity and liberty we should affirm. It is the conception which is briefly explained at pp. 25–26 and at much greater length and with much greater power by the famous John Locke, Essay Concerning Human Understanding, book II, chapter 21, where it is centered on this point: that one acts or does not act as one wishes to act or not to act.15 In whatever created thing therefore this condition of action is found, it is precisely there that there is room for reasons drawn from the representation of good or evil. And in a mind capable of knowing spiritual things, the strongest of these ought to be those which are drawn from the prescriptions of the divine law, so that as one is prompted by these reasons to perform at the command of God’s will the actions He prescribes, and to omit those He forbids, so one is to be considered as giving evidence of, on the one hand, love and veneration of God himself, and on the other hand, of neglect and contempt. One must therefore expect the consequences of the two actions which it is worthy of the majesty, wisdom, and sanctity of the supreme deity to dispense on the one hand to his worshippers and on the other to those who despise him. The prejudice that absolute indifference is required for this effect is puerile, and is perhaps the “archetypal lie” of all the errors in this doctrine.16 It is indeed true that duty, even when it is left undone, may be said to be capable of being chosen, so far as it is capable of being known (see above, p. 32). Thus it may be said, first, in the wider sense, that a faculty of reason is implanted in the mind, and signs of good and evil are manifested, such that if a man used his reason with the greatest care, he would be determined to embrace the good. Or it may be said, in a narrower sense, that there is in the mind a vigor of reason and that the signs of good and evil are so clearly represented to it that a man would be determined to embrace the good, provided ordinary constancy of will accompanied ordinary attention of intellect. Of these the former is the standard for imputation in the court of God and of conscience: but we do not deny that the latter is rightly the most that is required in the human court. [I.1.10.i]
The author does not seem to have intended here to teach a complete distribution of goods, but only of terrestrial goods, the same distinction of goods as is suggested by the Apostle (1 John, II.16).17 Therefore, since that good toward which the will is perpetually set serves toward attaining or preserving happiness, that is, pleasure or immunity from pain, an aim to which it contributes either directly or indirectly, it is clear that all that is good is pleasant or useful (taking these terms in a rather wide sense). [I.1.11.i]
Actions which are involuntary because of force, or compelled, should rather be called passions (passiones) as the distinguished Gerard de Vries noted, Pneumatological Determinations, section II, chapter VII.6.18 Also when it is a question of actions which are involuntary by reason or ignorance, or mixed, the same author gives an equally correct account: in the former, the so-called involuntary element is something which is merely incidental to the action, apart from the intention; the latter are actually free actions, since they have been undertaken as a result of a previous choice, though joined with a tendency in the opposite direction. [I.1.16.i]
It is his own free actions and omissions, as we have defined them at pp. 25–26 and above at 35–36, which are in a man’s power to do or not to do. If anyone insists that some notion of indifference is relevant here, it is obvious that this indifference is contained in the notion of freedom given in the aforesaid passages, in that an agent is determined to act or not to act precisely in the same way that he is determined to will or not to will. We do not deny that the one is connected with the other in a man (and perhaps in any free created agent), because if we look at its mere essence, he may be determined to either of the two. But if anything beyond the indifference explained here is required for the effect of imputation in the human court, it includes only this, that a man being placed in such circumstances (so far as these can be known by men before the actual event) without the supernatural intervention of the Deity, can be determined to choose either direction. But this is not required in the divine court either. Further, actual imputation also requires a law by a man who pays due attention and when known may move him to obedience, provided only he rightly trains his reason. We have indicated above, p. 32, and pp. 35–36, in what sense both points ought to be understood with regard to both the divine and the human court. [I.1.17.i]
[Pufendorf held that a man is not responsible for actions taken under duress: when one is forced to do or suffer something, or secondly, when one is threatened with some serious harm unless one acts or abstains from acting. Carmichael comments:]
This second mode of compulsion, as it does not prevent the action from being truly free (that is, undertaken here and now by command of the will), cannot diminish responsibility for it either. (Whether it excuses an action which would otherwise have been bad, and makes it good, is another question.) But it cannot be admitted in the court of God with respect to actions by which reverence for the Deity is directly violated, a perfect right of another man is injured, or harm inflicted in other ways on us or on other innocent persons, especially a greater or an equal harm to those things which a man has no right to freely dispose of, such as life and limbs. Otherwise, the infliction of a serious injury may necessitate many actions which it would not be right to do apart from that. And it often extenuates those actions which it does not excuse in the divine court, and usually removes responsibility in the human court, if the evil represented would cause terror to a grave and constant man. [I.1.24.i]
This [absence of responsibility of an agent who acts simply as the instrument of another] is never to be admitted in actions in which a man interposes the command of his will, whatever necessity he may be under. But it is true that these actions are not always imputed to the immediate agent, nor are they of the same type of morality (far less of the same degree) as if he had done them of his own accord. This is all that the author seems to mean here, as in every passage where he denies responsibility for such actions. But this should not be extended to those actions which we have said in the previous note cannot be excused by the second kind of compulsion. [I.1.27.i]
[1.] From Carmichael’s notes in Supplements and Observations, 1724, to the “Author’s Preface”; and bk. I, ch. 1, “On Human Action.”
[2.] Pufendorf thought that while natural jurisprudence must be abstracted from Christian theology, the “Christian virtues too do as much as anything to dispose men’s minds to sociability” (Pufendorf, On the Duty of Man and Citizen, p. 9). See also Moore and Silverthorne, “Protestant Theologies,” pp. 173 ff.
[3.] See ch. 1, nn. 22, 23.
[4.] Burgersdyck and Heereboord included under the rubric of human actions not only free actions, but also involuntary actions (actiones invitae) or passions: Idea Philosophiae, ch. V; Collegium Ethicum, ch. VI; see ch. 1, n. 8, above.
[5.] See below, p. 339.
[6.] Pufendorf, On the Duty of Man and Citizen, I.4, pp. 17–18.
[7.] Ibid., I.5, p. 18.
[8.] Ibid., I.6, p. 18: his rule is that “one should suspend action as long as the judgment as to good and bad is uncertain.”
[9.] Grotius said: “This Rule, of abstaining from a doubtful Action does not hold when we are oblig’d to do either this or that, and yet are unsatisfied in either, whether it be just or not; for then we are allow’d to choose that Side which appears less evil or unjust. For whensoever we are under the Necessity of making a Choice, the lesser Evil assumes the Character of Good” (Grotius, Rights of War and Peace, II.23.2, cited in Pufendorf, Of the Law of Nature and Nations, I.3.8, pp. 29–30).
[10.] It is characteristic of Carmichael as a moral philosopher that he supported the more affirmative and active orientation of Grotius’s and Locke’s natural jurisprudence against the more cautious and obedience-oriented approach to natural and civic duty of Pufendorf and (on certain matters) Barbeyrac. In Les Devoirs (1741), pp. 12–13, Barbeyrac complained that Carmichael had failed to provide an illustration of an action which must be done even though the outcome might be of doubtful merit. The only illustration which occurred to Barbeyrac of the kind of case Carmichael could have had in mind was the case of a subject who has been ordered by a legitimate ruler to perform one or more dubious actions. Like Pufendorf, Barbeyrac thought that the circumstance that an act had been commanded by a superior imparted moral merit to the act. For Carmichael, on the other hand, the moral merit of an action was always signified by the disposition or sentiment in which it was performed. Accordingly, we find Carmichael inclined to support actions which manifest or exhibit the appropriate disposition (reverence or veneration of the deity), even when no rule or law made by a (human) superior demands it.
[11.] Pufendorf, On the Duty of Man and Citizen, I.9–10, pp. 19–20, and Of the Law of Nature and Nations, I.IV.1–2; Titius, Observationes, no. 29.
[12.] The idea that liberty of the will depended upon indifference had been argued by the Jesuits (Molina, Suarez, and others). Among the scholastic moralists whose texts were regularly assigned in moral philosophy courses in British universities in the seventeenth century, only Eustache offered a qualified defense of the liberty of indifference: Ethica (1693), pp. 12–13 and 64–65).
[13.] Raphson, Demonstratio de Deo.
[14.] See below, Philosophical Theses (1699), pp. 339–41.
[15.] Locke, Essay, bk. I, ch. 21, sec. 21, pp. 244 ff.
[16.] On the “archetypal lie,” or proton pseudos, see Aristotle, Analytica Priora, 56a15. The circumstance that liberty of indifference was conceived by Jesuit writers to counter the determinism of Protestant moralists may account in part for the ferocity of Carmichael’s repudiation of this doctrine (“the archetypal lie,” etc.).
[17.] Pufendorf, On the Duty of Man and Citizen, I.1.11, p. 20. The First Letter of John, 2.16: “For all that is in the world, the lust of the flesh, and the lust of the eyes, and the pride of life, is not of the Father, but is of the world.” The biblical saying cited by Carmichael is significant in its underlining of the ascetic dimension of Carmichael’s moral philosophy, as contrasted with the Epicurean orientation of much of Pufendorf’s moral thought.
[18.] De Vries, De Natura Dei, p. 32.