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PART I: General Principles of Right. - Jean-Jacques Burlamaqui, The Principles of Natural and Politic Law 
The Principles of Natural and Politic Law, trans. Thomas Nugent, ed. and with an Introduction by Peter Korkman (Indianpolis: Liberty Fund, 2006).
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General Principles of Right.
Of the Nature of Man considered with Regard to Right: Of the Understanding, and whatever is relative to this Faculty.
Design of this work: What is meant by Natural Law.I. My design is to enquire into those rules which nature1 alone prescribes to man, in order to conduct him safely to the end, which every one has, and indeed ought to have, in view, namely, true and solid happiness. The system or assemblage of these rules, considered as so many laws imposed by God on man, is generally distinguished by the name of Natural Law. This science includes the most<2> important principles of morality, jurisprudence, and politics, that is, whatever is most interesting in respect as well to man as to society. There can be nothing therefore more deserving of the application of a rational being, of a being that has its perfection and felicity seriously at heart. A just knowledge of the maxims we ought to follow in the course of life, is the principal object of wisdom; and virtue consists in putting them constantly in practice, without being ever diverted from so noble a pursuit.
We must deduce the principles of this science from the nature and state of man.II. The idea of Right, and much more that of Natural Right, are undoubtedly relative to the nature of man. It is from this nature therefore, from the constitution and state of man, that we are to deduce the principles of this science.
The word Right (Droit* ) in its original signification, comes from the verb dirigo, which implies, to conduct a person to some certain end by the shortest road. Right, therefore, in its proper and most general sense, and that to which all the others must be reduced, is whatever directs, or is properly directed. This being premised, the first thing we have to examine is, whether man is susceptible of direction and rule in respect to his actions. That we may attempt this with a greater probability of success, we are to trace matters to their very origin, and ascending as high as the nature and constitution of man, we must there unravel the principle of his actions, and the several states that properly belong to him, in order to demonstrate afterwards in what manner, and how<3> far, he is susceptible of direction in his conduct. This is the only method of knowing what is right, and what is not.
Definition of man; what his nature is.III. Man is an animal endowed with understanding, and reason; a being composed of an organized body, and a rational soul.
With regard to his body, he is pretty similar to other animals, having the same organs, properties, and wants. This is a living body, organized and composed of several parts; a body that moves of itself, and feeble in the commencement, increases gradually in its progress by the help of nourishment, till it arrives to a certain period, in which it appears in its flower and vigor, from whence it insensibly declines to old age, which conducts it at length to dissolution. This is the ordinary course of human life, unless it happens to be abridged by some malady or accident.
But man, besides the marvelous disposition of his body, has likewise a rational soul, which eminently discriminates him from brutes. It is by this noble part of himself that he thinks, and is capable of forming just ideas of the different objects that occur to him; of comparing them together; of inferring from known principles unknown truths; of passing a solid judgment on the mutual fitness or agreement of things, as well as on the relations they bear to us; of deliberating on what is proper or improper to be done; and of determining consequently to act one way or other. The mind recollects what is past, joins it with the present, and extends its views to futurity. It is capable of penetrating into the causes, progress, and consequence of things, and of disco-<4>vering, as it were at one glance, the intire course of life, which enables it to lay in a store of such things as are necessary for making a happy career. Besides, in all this, it is not subject to a constant series of uniform and invariable operations, but finds itself at liberty to act or not to act, to suspend its actions and motions, to direct and manage them as it thinks proper.2
Different actions of man: Which are those that are the object of Right?IV. Such is the general idea we are to form of the nature of man. What results from hence is, that there are several sorts of human actions: Some are purely spiritual, as to think, to reflect, to doubt, &c. others are merely corporeal, as to breathe, to grow, &c. and some there are that may be called mixt, in which the soul and body have both a share, being produced by their joint concurrence, in consequence of the union which God has established between these two constituent parts of man; such as to speak, to work, &c.
Those actions, which either in their origin or direction depend on the soul, are called human or voluntary; all the rest are termed merely physical. The soul is therefore the principle of human actions; and these actions cannot be the object of rule, but inasmuch as they are produced and directed by those noble faculties with which man has been inriched by his Creator. Hence it is necessary to enter into a particular inquiry concerning this subject, and to examine closely into the faculties and operations of the soul, in order to discover in what manner they concur to the production of human actions. This will help us, at the same time, to unfold the nature of<5> these actions, to assure ourselves whether they are really susceptible of rule, and how far they are subject to human command.
Principal faculties of the soul.V. Let man reflect but ever so little on himself, sense and experience will soon inform him, that his soul is an agent, whose activity displays itself by a series of different operations; which having been distinguished by separate names, are likewise attributed to different faculties. The chief of these faculties are the understanding, will, and liberty. The soul is, indeed, a simple being; but this does not hinder us, when we attend to its different ways of operating, from considering it as a subject in which different powers of acting reside, and from giving different denominations to these powers. If we consider the thing in this manner, we shall find it will give a greater exactness and perspicuity to our ideas. Let us remember therefore, that these faculties are nothing else but the different powers of acting inherent in the mind, by means of which it performs all its operations.
The understanding; truth.VI. The principal faculty of the soul, that which constitutes the fundamental part of its being, and serves, as it were, for its intrinsic light, is the understanding. We may define it that faculty or power, by which the mind perceives, and forms ideas of things, in order to come at the knowledge of truth. Truth may be taken here in two significations; either for the nature, state, and mutual relations of things; or for the ideas agreeable to this nature, state, and relations. To have a knowledge therefore of truth,<6> is to perceive things such as they are in themselves, and to form ideas concerning them conformable to their nature.
Principle. The understanding is naturally right.VII. We must therefore set out with acknowledging as a fixt and uncontestable principle, that the human understanding is naturally right, and has within itself a strength sufficient to arrive at the knowledge of truth, and to distinguish it from error; especially in things wherein our respective duties are concerned, and which are requisite to form man for a virtuous, honourable, and quiet life; provided, however, he employs all the care and attention that lies in his power.
Sense3 and experience concur to convince us of the truth of this principle; which is the hinge, as it were, whereon the whole system of humanity turns. It cannot be called in question, without sapping the foundation, and intirely subverting the whole structure of society; because this would be annulling all manner of distinction between truth and error, and between good and evil; and by a natural consequence of this subversion, we should find ourselves reduced to the necessity of doubting of every thing; which is the highest pitch of human extravagance.
Those who pretend that reason and its faculties are depraved in such a manner, as to be no longer capable of serving as a sure and faithful guide to man, either in respect to his duties, or particularly with regard to religion; do not reflect that they have adopted for the basis of their system, a principle destructive of all truth, and consequently of religion. Thus we see that the sacred scripture, far from<7> establishing any such maxim, assures us,* that when the Gentiles which have not the law, do by nature the things contained in the law; these having not the law, are a law to themselves. Which shew the work of the law written in their hearts, their conscience also bearing witness.
True it is, that a bad education, vicious habits, and irregular passions, may offuscate the mind; and that neglect, levity, and prejudices, precipitate men frequently into the grossest errors in point of religion and morals. But this proves only that men may make a bad use of their reason, and not that the natural rectitude of the faculties is subverted. What we have still to say, concerning this point, will help to set it in a clearer light.4
In what manner perception, attention, and examen, are formed.VIII. Let us proceed now to a closer inquiry into the operations of the understanding.5 The perception, or view and knowledge of things, is commonly formed by the concurrence of two actions; one from the object, and is the impression which this object makes on us; the other from the mind, and is properly a glance, or simple view of the soul, on the object it is desirous of knowing. But as a first view is not always sufficient, it is necessary that the mind should apply itself for some time to a serious consideration of the object, to the end it may acquire a just knowledge of things, and form thereof exact ideas. This application, with which the soul continues to view the object in order to know it well, is called attention; and if it turns itself different ways, to consider the object on all sides, this is<8> termed examen or inquiry. We may therefore affirm, that the perception or knowledge of things depends intirely, in respect to the mind, on its natural vigor and attention.
Evidence; Probability.IX. It is by these helps, drawn from his own fund, that man attains at length a clear and distinct knowledge of things, and their relations; as also of ideas, and the conformity of those ideas to their originals; in short, that he acquires the knowledge of truth. We give the name of evidence, to this clear and distinct view of things, and of their mutual relations; a point to which we should be particularly attentive. For this evidence being the essential characteristic of truth, or the sure mark whereby one cannot help distinguishing it, the consequence is, that it necessarily produces such an internal conviction, as forms the highest degree of certainty. It is true that all objects do not present themselves with so strong a light, and that notwithstanding the great care and application a man may use, all that he is frequently able to attain, is only a glimmering light, which, according to its strength or weakness, produces different degrees of probability and seeming truth. But this must be absolutely the case of every being, whose faculties are limited: It is sufficient that man, in respect to his destination and state, is capable of knowing with certainty those things which concern his perfection and happiness; and moreover, that he is able to distinguish between probability and evidence, as also between the different degrees of probability, in order to proportion his assent to those differences. Now a person need but enter never so little into him-<9>self, and reflect on the operations of his mind, to be convinced, beyond any possibility of doubt, that man is really possessed of this discernment.
Of the senses, the imagination, and memory.X. The senses, taken for the sensitive faculty, the imagination also, and the memory, must be all reduced to the understanding. In fact, the senses, considered in this manner, are nothing else but the understanding itself, as it makes use of the senses and organs of the body, to perceive corporeal objects. The imagination likewise is nothing but the understanding, as it perceives absent objects, not in themselves, but by their images formed in the brain. The memory, in fine, is no more than the understanding, considered as possessed of the faculty of retaining the ideas it forms of things, and capable of representing them to itself whenever there is occasion; advantages that principally depend on the care we take in repeating frequently those ideas.
The perfection of the understanding consists in the knowledge of truth. Two obstacles to this perfection, ignorance and error.XI. From what has been hitherto said with regard to the understanding, it follows, that the object of this faculty of the soul is truth, with all the acts and means that lead us to it. Upon this supposition, the perfection of the understanding consists in the knowledge of truth, this being the end for which it is designed.
There are two things, among others, opposite to this perfection, ignorance and error, which are two maladies, as it were, of the mind. Ignorance is no more than a privation of ideas or knowledge; but error is a nonconformity or opposition of our ideas to the nature and state of things. Error being therefore<10> the subversion of truth, is much more opposite to it than ignorance, which is a kind of medium between truth and error.
It is to be observed here, that we do not speak of the understanding, truth, ignorance, and error, purely to know what these things are in themselves; our main design is to consider them as principles of our actions. In this light, ignorance and error, though naturally distinct from one another, are generally mixt, as it were, and confounded; insomuch, that whatsoever is said of one, ought equally to be applied to the other. Ignorance is frequently the cause of error; but whether joined or separate, they follow the same rules, and produce the same effect by the influence they have over our actions or omissions. Perhaps, were we to examine into things exactly, error only, properly speaking, can be looked upon as a principle of action, and not simple ignorance, which being nothing more of itself than a privation of ideas, cannot be productive of any thing.
Different sorts of errors. 1. Error of the law, and of the fact. 2. Voluntary and involuntary. 3. Essential and accidental.XII. There are several sorts of ignorance and error, whose different divisions it is proper for us to observe. 1. Error considered in respect to its object, is either of the law or of the fact. 2. With regard to its origin, ignorance is voluntary or involuntary, error is vincible or invincible. 3. In relation to the influence of the error on a particular affair or action, it is esteemed essential or accidental.
Error is of the law or fact according as people are mistaken either in respect to the disposition of the law, or in regard to a fact that is not sufficiently known.6 For instance, it would be an error of the<11> law, were a prince to suppose himself intitled to declare war against a neighbouring state, only because it insensibly increases in strength and power. Such was likewise the error so common formerly among the Greeks and Romans, that it was allowable for parents to expose their children.* On the contrary, the idea Abimelech had of Sarah the wife of Abraham, by taking her for an unmarried person, was an error of the fact.
The ignorance a person lies under through his own fault, or an error contracted by neglect, and which might have been avoided by using all possible care and attention, is a voluntary ignorance, or a vincible and surmountable error. Thus the polytheism of the Pagans was a vincible error; for they had only to make a right use of their reason, in order to be convinced that there was no necessity for supposing a plurality of gods.7 The same may be said of an opinion established among most of the ancients, that piracy was lawful against those with whom there was no treaty subsisting, and that it was allowable to consider them as enemies. Ignorance is involuntary, and error invincible, when they are such as could neither have been prevented nor removed, even by all the care and endeavours that are morally possible; that is, judging of them according to the constitution of human things, and of common life. Thus the ignorance of the christian religion, under which the people of America laboured, before they had any communication with the Europeans, was an involuntary and invincible ignorance.<12>
In fine, we understand by an essential error,8 that whose object is some necessary circumstance in the affair, and which for this very reason has a direct influence on the action done in consequence thereof; insomuch, that were it not for this error, the action would never have been done. Hence this is denominated likewise an efficacious error. By necessary circumstances, we are to understand those which are necessarily required, either by the very nature of the thing, or by the intention of the agent, formed at the proper time, and made known by suitable indications. It was thus, for instance, an essential error in the Trojans, at the taking of their town, to shoot their darts against their own people, mistaking them for enemies, because of their being armed after the Greek manner. Again; a person marries another man’s wife, supposing her to be a maid, or not knowing that her husband is still living: this regards the very nature of the thing, and is of course an essential error.
On the contrary, accidental error is that which has no necessary connexion of itself with the affair, and consequently cannot be considered as the real cause of the action. A person abuses or insults another, taking him for somebody else, or because he supposes the prince is dead, as it had been groundlessly reported, &c. These are errors merely accidental, which subsist indeed in the mind of the agent, and have accompanied him in the action, but cannot be considered as its real cause.
It is likewise observable, that these different qualities of ignorance or error may concur, and be found united in the same case. It is thus an error of the fact may<13> be either essential or accidental; and both the one and the other may be either voluntary or involuntary, vincible or invincible.
So much may suffice for what regards the understanding. Let us proceed now to examine into the other faculties of the soul, which concur also to the production of human actions.
Continuation of the Principles relative to the nature of man. Of will and liberty.
The Will. What happiness and good consist in.I. It was not sufficient, pursuant to the views of the Creator, that the human mind should be possessed of the faculty of knowing things, and of forming thereof ideas; it was likewise requisite it should be endowed with an active principle to set it in motion, and with a power whereby man, after knowing the objects that occur to him, should be capable of determining to act or not to act, according as he judges proper. This faculty is what we call the will.
The will is therefore nothing else but that power of the soul, by which it is determined of itself, and by virtue of an active principle inherent in its nature, to seek for what is agreeable to it, to act after a certain manner, and to do or to omit an action, with a view of happiness.
By Happiness we are to understand the internal satisfaction of the mind, arising from the possession<14> of good; and by good whatever is suitable or agreeable to man for his preservation, perfection, conveniency, or pleasure. The idea of good determines that of evil, which, in its most general signification, implies whatever is opposite to the preservation, perfection, conveniency, or pleasure of man.
Instincts, inclinations, passions.II. Instincts, inclinations, and passions, are reducible to the will.1 Instincts are sentiments excited in the soul by the wants of the body, which determine it to provide immediately against them. Such are hunger, thirst, the aversion for whatever is hurtful, &c. The inclinations are a propensity of the will, which leads it rather towards some sorts of objects than others, but in an even tranquil manner, a manner so proportioned to all its operations, that instead of obstructing or interrupting, it generally facilitates them. As for the passions, they are, indeed, in the same manner as the inclinations, motions of the will towards certain objects, but motions of a more impetuous and turbulent kind, motions that dispossess the soul of its natural tranquillity, and hinder it from directing properly its operations. Then it is that the passions become most dangerous distempers. The cause of the passions is, generally, the allurement of some sensible good, which solicits the soul, and impels it with too violent an impression.
It is easy to conceive, by what has been here said, that the inclinations, passions, and instincts, have a very great affinity with one another. They are all alike propensities or motions, which have frequently the same objects; but there is this difference between<15> these three species of motions, that instincts are necessarily the same in all men, by a natural consequence of their constitution, and of the union between the body and the soul; whereas the inclinations and passions, particularly considered, have nothing necessary in their nature, and are surprisingly different in different men.
Let us make an observation here, which falls in very naturally: it is that we often give the name of Heart to the will, considered as susceptible of the forementioned motions; and the reason of this in all probability is, because these motions were supposed to have their seat in the heart.
Liberty: in what it consists.III. Such is the nature of the soul, that the will not only acts always spontaneously, that is, of its own proper motion, of its own accord, and by an internal principle; but likewise, that its determinations are generally accompanied with liberty.
We give the name of liberty to that force or power of the soul, whereby it modifies and regulates its operations as it pleases, so as to be able to suspend, continue, or alter its deliberations and actions; in a word, so as to be capable to determine and act with choice, according as it thinks proper. It is by this excellent faculty, that man has a kind of command over himself and his actions: and as he is hereby rendered also capable of conforming to rule, and answerable for his conduct, it is therefore necessary to give a further explication of the nature of this faculty.
Will and liberty being faculties of the soul, they cannot be blind or destitute of knowledge; but<16> necessarily suppose the operation of the understanding. How is it possible in fact to determine, suspend, or alter our resolutions, unless we know what is proper for us to chuse? It is contrary to the nature of an intelligent and rational being to act without intellection and reason. This reason may be either superficial or bad; yet it has some appearance at least, some glimmering, that makes us give it a momentary approbation. Wherever there is election or choice, there must be a comparison; and a comparison implies at least a confused reflection, a kind of deliberation, though of a quick and almost imperceptible nature, on the subject before us.
The end of 2 our deliberations is to procure us some advantage. For the will tends generally towards good, that is, to whatsoever is really or apparently proper for rendering us happy; insomuch, that all actions depending on man, and that are any way relative to his end, are for this very reason subject to the will. And as truth, or the knowledge of things, is agreeable to man; and in this signification truth is also a good, it follows therefore that truth forms one of the principal objects of the will.
Liberty, like the will, has goodness and truth for its object; but it has less extent with regard to actions; for it does not exercise itself in all the acts of the will, but only in those which the soul has a power of suspending or altering as she pleases.3
Use of liberty in our judgments in respect to truth.IV. But if any one should inquire which are those acts wherein liberty displays itself? We answer, that they are easily known, by attending to what passes within us, and to the manner in which the mind<17> conducts itself in the several cases that daily occur: as, in the first place, in our judgments concerning true and false; secondly, in our determinations in relation to good and evil; and finally, in indifferent matters. These particulars are necessary, in order to be acquainted with the nature, use, and extent of liberty.
With regard to truth, we are formed in such a manner, that so soon as evidence strikes the mind, we are no longer at liberty to suspend our judgment. Vain would be the attempt to resist this sparkling light; it absolutely forces our assent. Who, for example, could pretend to deny that the whole is greater than its part, or that harmony and peace are preferable, either in a family or state, to discord, tumults, and war?
The same cannot be affirmed in regard to things that have less perspicuity and evidence; for in these the use of liberty displays itself in its full extent. It is true our mind inclines naturally to that side which seems the most probable; but this does not debar it from suspending its assent, in order to seek for new proofs, or to refer the whole inquiry to another opportunity. The obscurer things are, the more we are at liberty to hesitate, to suspend, or defer our determination. This is a point sufficiently evinced by experience. Every day, and at every step, as it were, disputes arise, in which the arguments on both sides leave us, by reason of our limited capacity, in a kind of doubt and equilibrium, which permits us to suspend our judgment, to examine the thing anew, and to incline the balance at length to one side more than the other. We find, for example, <18>that the mind can hesitate a long time, and forbear determining itself, even after a mature inquiry, in respect to the following questions: Whether an oath extorted by violence is obligatory? Whether the murder of Caesar was lawful? Whether the Roman senate could with justice refuse to confirm the promise made by the Consuls to the Samnites, in order to extricate themselves from the Caudine Forks; or whether they ought to have ratified and given it the force of a public treaty? &c.4
Liberty has its exercise, even in regard to things that are evident.V. Though there is no exercise of liberty in our judgment, when things present themselves to us in a clear and distinct manner; still we must not imagine that the intire use of this faculty ceases in respect to things that are evident. For in the first place, it is always in our power to apply our minds to the consideration of those things, or else to divert them from thence, by transferring somewhere else our attention. This first determination of the will, by which it is led to consider or not to consider the objects that occur to us, merits particular notice, because of the natural influence it must have on the very determination, by which we conclude to act or not to act, in consequence of our reflexion and judgment. Secondly, we have it likewise in our power to create, as it were, evidence in some cases, by dint of attention and inquiry; whereas at first setting out, we had only some glimmerings, insufficient to give us an adequate knowledge of the state of things. In fine, when we have attained this evidence, we are still at liberty to dwell more or less on the consideration thereof; which is also of great consequence, because on this depends its greater or lesser degree of impression.<19>
Objection.These remarks lead us to an important reflexion, which may serve for answer to an objection raised against liberty. “It is not in our power (say they) to perceive things otherwise than as they offer themselves to our mind; now our judgments are formed on this perception of things; and it is by these judgments that the will is determined: The whole is therefore necessary and independent of liberty.”
Answer.But this difficulty carries little more with it than an empty appearance. Let people say what they will, we are always at liberty to open or to shut our eyes to the light; to exert, or relax our attention. Experience shews, that when we view an object in different lights, and determine to search into the bottom of matters, we descry several things that escaped us at first sight. This is sufficient to prove that there is an exercise of liberty in the operations of the understanding, as well as in the several actions thereon depending.
Use of liberty with regard to good and evil.VI. The second question we have to examine, is whether we are equally free in our determinations, in regard to good and evil.
To decide this point, we need not stir out of our selves; for here also by facts, and even by our internal experience,5 the question may be determined. Certain it is, that in respect to good and evil considered in general, and as such, we cannot, properly speaking, exercise our liberty, by reason that we feel ourselves drawn towards the one by an invincible propensity, and estranged from the other by a natural and insuperable aversion. Thus it has been ordered<20> by the author of our being, whilst man has no power in this respect to change his nature. We are formed in such a manner, that good of necessity allures us; whereas evil, by an opposite effect, repels us, as it were, and deters us from attempting to pursue it.
But this strong tendency to good, and natural aversion to evil in general, does not debar us from being perfectly free in respect to good and evil particularly considered; and though we cannot help being sensible of the first impressions which the objects make on us, yet this does not invincibly determine us to pursue or shun those objects. Let the most beautiful and most fragrant fruit, replenished with exquisite and delicious juice, be unexpectedly set before a person oppressed with thirst and heat; he will find himself instantly inclined to seize on the blessing offered to him, and to ease his inquietude by a salutary refreshment. But he can also stop, and suspend his action, in order to examine whether the good he proposes to himself, by eating this fruit, will not be attended with evil; in short, he is at liberty to weigh and deliberate,6 in order to embrace the safest side of the question. Besides, we are not only capable, with the assistance of reason, to deprive ourselves of a thing, whose flattering idea invites us; but moreover we are able to expose ourselves to a chagrin or pain, which we dread and would willingly avoid, were we not induced by superior considerations to support it. Can any one desire a stronger proof of liberty?
With regard to indifferent things.VII. True it is notwithstanding, that the exercise of this faculty never displays itself more than in in-<21>different things. I find, for instance, that it depends intirely on myself to stretch out or draw back my hand; to sit down or to walk; to direct my steps to the right or left, &c. On these occasions, where the soul is left intirely to itself, either for want of external motives, or by reason of the opposition and, as it were, the equilibrium of these motives, if it determines on one side, this may be said to be the pure effect of its pleasure and good will, and of the command it has over its own actions.
Why the exercise of liberty is restrained to non-evident truths, and particular goods.VIII. Let us stop here a while to inquire, how comes it that the exercise of this power is limited to particular goods and non-evident truths, without extending itself to good in general, or to such truths as are perfectly clear. Should we happen to discover the reason thereof, it will furnish us with a new subject to admire the wisdom of the Creator in the constitution of man, and with a means at the same time of being better acquainted with the end and true use of liberty.
And first we hope there is no body but will admit, that the end of God in creating man was to render him happy. Upon this supposition, it will be soon agreed, that man cannot attain to happiness any other way than by the knowledge of truth, and by the possession of real good. This is evidently the result of the notions above given of good and happiness. Let us therefore direct our reflexions towards this prospect. When things, that are the object of our researches, present themselves to our minds with a feeble light, and are not accompanied with that splendor and clearness, which enables us to know them<22> perfectly, and to judge of them with full certainty; it is proper and even necessary for us to be invested with a power of suspending our judgment; to the end that, not being necessarily determined to acquiesce in the first impression, we should be still at liberty to carry on our inquiry, till we arrive to a higher degree of certainty, and if possible, as far as evidence itself. Were not this the case, we should be exposed every moment to error, without any possibility of being undeceived. It was therefore extremely useful and necessary to man, that under such circumstances he should have the use and exercise of his liberty.
But when we happen to have a clear and distinct view of things and their relations, that is, when evidence strikes us, it would be of no manner of signification to have the use of liberty, in order to suspend our judgment. For certainty being then in its very highest degree, what benefit should we reap by a new examen or inquiry, were it in our power? We have no longer occasion to consult a guide, when we see distinctly the end we are tending to, and the road we are to take. It is therefore an advantage to man to be unable to refuse his assent to evidence.
IX. Let us reason pretty near in the same manner on the use of liberty with respect to good and evil. Man designed for happiness, should certainly have been formed in such a manner, as to find himself under an absolute necessity of desiring and pursuing good, and of shunning on the contrary evil in general. Were the nature of these faculties such, as to<23> leave him in a state of indifference, so as to be at liberty in this respect to suspend or alter his desires, plain it is, that this would be esteemed a very great imperfection in him; an imperfection that would imply a want of wisdom in the author of his being, as a thing directly opposite to the end he proposed in giving him life.
No less an inconveniency would it be on the other hand, were the necessity which man is under of pursuing good and avoiding evil to be such as would insuperably determine him to act or not to act, in consequence of the impressions made on him by each object. Such is the state of human things, that we are frequently deceived by appearances; it is very rare that good or evil presents itself to us pure and without mixture; but there is almost always a favourable and adverse side, an inconveniency mixt with utility. In order to act therefore with safety, and not to be mistaken in our account, it is generally incumbent upon us to suspend our first motions, to examine more closely into things, to make distinctions, calculations, and compensations; all which require the use of liberty. Liberty is therefore, as it were, a subsidiary faculty, which supplies the deficiencies of the other powers, and whose office ceaseth as soon as it has redressed them.
Hence let us conclude, that man is provided with all the necessary means for attaining to the end for which he is designed; and that in this, as in every other respect, the Creator has acted with wonderful wisdom.
The proof of liberty drawn from our inward sense, is superior to any other.X. After what has been said concerning the nature, operations, and use of liberty, it may seem perhaps<24> unnecessary to attempt here to prove that man is indeed a free agent, and that we are as really invested with this as with any other faculty.
Nevertheless, as it is an essential principle, and one of the fundamental supports of our edifice, it is proper to make the reader sensible of the indubitable proof with which we are furnished by daily experience. Let us therefore consult only ourselves. Every one finds that he is master, for instance, to walk or sit, to speak or hold his tongue. Do not we also experience continually, that it depends intirely on ourselves to suspend our judgment, in order to proceed to a new inquiry? Can any one seriously deny, that in the choice of good and evil our resolutions are unconstrained; that, notwithstanding the first impression, we have it in our power to stop of a sudden, to weigh the arguments on both sides, and to do, in short, whatever can be expected from the freest agent? Were I invincibly drawn towards one particular good rather than another, I should feel then the same impression as that which inclines me to good in general, that is, an impression that would necessarily drag me along, an impression which there would be no possibility of resisting. Now experience makes me feel no such violence with respect to any particular good. I find I can abstain from it; I can defer using it; I can prefer something else to it; I can hesitate in my choice; in short, I am my own master to chuse, or, which is the same thing, I am free.
Should we be asked, how comes it, that not being free in respect to good in general, yet we are at liberty with regard to particular goods? My answer is, that the natural desire of happiness does not in-<25>superably draw us towards any particular good, because no particular good includes that happiness for which we have a necessary inclination.
Sensible proofs, like these, are superior to all objection, and productive of the most inward conviction, by reason it is impossible, that when the soul is modified after a certain manner, it should not feel this modification, and the state which consequently attends it. What other certainty have we of our existence? And how is it we know that we think, we act, but by our inward sense?7
This sense of liberty is so much the less equivocal, as it is not momentary or transient: It is a sense that never leaves us, and of which we have a daily and continual experience.
Thus we see there is nothing better established in life, than the strong persuasion which all mankind have of liberty. Let us consider the system of humanity, either in general or particular, we shall find that the whole is built upon this principle. Reflexions, deliberations, researches, actions, judgments; all suppose the use of liberty. Hence the ideas of good and evil, of vice and virtue: hence, as a natural consequence, arises praise or blame, the censure or approbation of our own, or other people’s conduct. The same may be said of the affections and natural sentiments of men towards one another, as friendship, benevolence, gratitude, hatred, anger, complaints, and reproaches: none of these sentiments could take place, unless we were to admit of liberty. In fine, as this prerogative is in some measure the key of the human system, he that does not allow it to man, subverts all order, and introduces a general confusion.<26>
How comes it that liberty has been contested.XI. It is natural here to inquire, how it was ever possible for any body seriously to doubt, whether man is master of his actions, whether he is free? I should be less surprized at this doubt, were it concerning a strange or remote fact, a fact that was not transacted within ourselves. But the question is in regard to a thing, of which we have an internal immediate feeling, a constant and daily experience. Strange, that any one should call in question a faculty of the soul! May not we as well doubt of the understanding and will, as of the liberty of man? For if we are content to abide by our inward sense,8 there is no more room to dispute of one than of the other. But some too subtle philosophers, by considering this subject in a metaphysical light, have stript it, as it were, of its nature; and finding themselves at a loss to solve a few difficulties, they have given a greater attention to these difficulties than to the positive proofs of the thing; which insensibly led them to imagine that the notion of liberty was all an illusion. I own it is necessary, in the research of truth, to consider an object on every side, and to balance equally the arguments for and against; nevertheless we must take care we do not give to those objections more than their real weight. We are informed by experience, that in several things which in respect to us are invested with the highest degree of certainty, there are many difficulties notwithstanding, which we are incapable of resolving to our satisfaction: and this is a natural consequence of the limits of the mind. Let us conclude therefore from hence, that when a truth is sufficiently evinced by solid reasons, whatever can be objected against it, ought not to<27> stagger or weaken our conviction, as long as they are such difficulties only as embarrass or puzzle the mind, without invalidating the proofs themselves. This rule is so very useful in the study of the sciences, that one should keep it always in sight.* Let us resume now the thread of our reflexions.
Actions are voluntary, and involuntary; free, necessary, and constrained.XII. The denomination of voluntary or human actions in general is given to all those that depend on the will; and that of free, to such as come within the jurisdiction of liberty, which the soul can suspend or turn as it pleases. The opposite of voluntary is involuntary; and the contrary of free is necessary, or whatever is done by force or constraint. All human actions are voluntary, inasmuch as there are none but what proceed from ourselves, and of which we are the authors. But if violence, used by an external force, which we are incapable to resist, hinders us from acting, or makes us act without the consent of our will; as when a person stronger than ourselves lays hold of our arm to strike or wound another person, the action resulting from thence being involuntary, is not, properly speaking, our deed or action, but that of the agent from whom we suffer this violence.<28>
The same cannot be said of actions that are forced and constrained, only as we are determined to commit them, through fear of a great and imminent evil with which we are menaced: As for instance, were an unjust and cruel prince to oblige a judge to condemn an innocent person, by menacing to put him to death if he did not obey his orders. Actions of this sort, though forced in some sense, because we commit them with reluctancy, and would never consent to them were it not for a very pressing necessity; such actions, I say, are ranked nevertheless among the number of voluntary actions, because, after all, they are produced by a deliberation of the will, which chuses between two inevitable evils, and determines to prefer the least to the greatest. This will become more intelligible by a few examples.
A person gives alms to a poor man, who exposes his wants and misery to him; this action is at the same time both voluntary and free. But suppose a man that travels alone and unarmed, falls into the hands of robbers, and that these miscreants menace him with instant death, unless he gives them all he has; the surrender which this traveller makes of his money in order to save his life, is indeed a voluntary action, but constrained at the same time, and void of liberty. For which reason there are some that distinguish these actions by the name of mixt,* as partaking of the voluntary and involuntary. They are voluntary, by reason the principle that produces them is in the agent itself, and the will determines to commit them as the least of two evils: but they<29> partake of the involuntary, because the will executes them contrary to its inclination, which it would never do, could it find any other expedient to clear itself of the dilemma.
Another necessary elucidation is, that we are to suppose that the evil with which we are menaced is considerable enough to make a reasonable impression upon a prudent or wise man, so far as to intimidate him; and besides that, the person who compels us has no right to restrain our liberty; insomuch that we do not lie under an obligation of bearing with any hardship or inconveniency, rather than displease him. Under these circumstances, reason would have us determine to suffer the lesser evil, supposing at least that they are both inevitable. This kind of constraint lays us under what is called a moral necessity; whereas, when we are absolutely compelled to act, without being able, in any shape whatsoever, to avoid it, this is termed a physical necessity.
It is therefore a necessary point of philosophical exactness to distinguish between voluntary and free. In fact, it is easy to comprehend, by what has been now said, that all free actions are indeed voluntary, but all voluntary actions are not free. Nevertheless, the common and vulgar way of speaking frequently confounds those two terms, of which we ought to take particular notice, in order to avoid all ambiguity.
We give likewise the name of manners sometimes to free actions, inasmuch as the mind considers them as susceptible of rule. Hence we call morality the art which teaches the rules of conduct, and the method of conforming our actions to those rules.<30>
Our faculties help one another reciprocally.XIII. We shall finish what relates to the faculties of the soul by some remarks, which will help us to understand better their nature and use.
1. Our faculties assist one another in their operations, and when9 they are all united in the same subject, they act always jointly. We have already observed that the will supposes the understanding, and that the light of reason serves for a guide to liberty. Thus the understanding, the will, and liberty; the senses, the imagination, and memory; the instincts, inclinations, and passions; are like so many different springs, which concur all to produce a particular effect; and it is by this united concurrence we attain at length to the knowledge of truth, and the possession of solid good, on which our perfection and happiness depends.
Of reason and virtue.XIV. 2. But in order to procure to ourselves those advantages, it is not only necessary that our faculties be well constituted in themselves, but moreover we ought to make a good use of them, and maintain the natural subordination there is between them, and the different motions which lead us towards, or divert us from, certain objects. It is not therefore sufficient to know the common and natural state of our faculties, we should likewise be acquainted with their state of perfection, and know in what their real use consists. Now truth being, as we have seen, the proper object of the understanding, the perfection of this faculty is to have a distinct knowledge of truth; at least of those important truths, which concern our duty and happi-<31>ness. For such a purpose, this faculty should be formed to a close attention, a just discernment, and solid reasoning. The understanding thus perfected, and considered as having actually the principles which enable us to know and to distinguish the true and the useful, is what is properly called reason; and hence it is that we are apt to speak of reason as of a light of the mind, and as of a rule by which we ought always to be directed in our judgments and actions.
If we consider in like manner the will in its state of perfection, we shall find it consists in the force and habit of determining always right, that is, not to desire any thing but what reason dictates, and not to make use of our liberty but in order to chuse the best. This sage direction of the will is properly called Virtue, and sometimes goes by the name of Reason. And as the perfection of the soul depends on the mutual succours which the faculties, considered in their most perfect state, lend to one another; we understand likewise sometimes by reason, taken in a more vague, and more extensive sense, the soul itself, considered with all its faculties, and as making actually a good use of them. Thus the term reason carries with it always an idea of perfection, which is sometimes applied to the soul in general, and at other times to some of the faculties in particular.
Causes of the diversity we observe in the conduct of men.XV. 3. The faculties, of which we are treating, are common to all mankind; but they are not found always in the same degree, neither are they determined after the same manner. Besides, they have their periods in every man; that is, their in-<32>crease, perfection, infeebling, and decay, in the same manner almost as the organs of the body. They vary likewise exceedingly in different men: one has a brighter understanding; another a quicker sensation; this man has a strong imagination; while another is swayed by violent passions. And all this is combined and diversified an infinite number of ways, according to the difference of temperaments, education, examples, and occasions that furnish an opportunity for exercising certain faculties or inclinations rather than others: for it is the exercise that strengthens them more or less. Such is the source of that prodigious variety of geniuses, tastes, and habits, which constitutes what we call the characters and manners of men; a variety which, considered in general, very far from being unserviceable, is of great use in the views of providence.
Reason has it always in her power to remain mistress.XVI. But whatever strength may be attributed to the inclinations, passions, and habits, still it is necessary to observe, that they have never enough to impel man invincibly to act contrary to reason. Reason has it always in her power to preserve her superiority and rights. She is able, with care and application, to correct vicious dispositions, to prevent and even to extirpate bad habits; to bridle the most unruly passions by sage precautions, to weaken them by degrees, and finally to destroy them intirely, or to reduce them within their proper bounds. This is sufficiently proved by the inward feeling, that every man has of the liberty with which he determines to follow this sort of impressions; proved by the secret reproaches we make to ourselves, when<33> we have been too much swayed by them; proved, in fine, by an infinite variety of examples. True it is, that there is some difficulty in surmounting these obstacles; but this is richly compensated by the glory attending so noble a victory, and by the solid advantages from thence arising.
That man thus constituted, is a creature capable of moral direction, and accountable for his actions.
Man is capable of direction in regard to his conduct.I. After having seen the nature of man, considered in respect to right, the result is, that he is a creature really susceptible of choice and direction in his conduct. For since he is capable, by means of his faculties, of knowing the nature and state of things, and of judging from this knowledge; since he is invested with the power of determining between two or several offers made to him; in fine, since, with the assistance of liberty, he is able, in certain cases, to suspend or continue his actions, as he judges proper; it evidently follows, that he is master of his own actions, and that he exercises a kind of authority and command over them, by virtue of which he can direct and turn them which way he pleases. Hence it appears how necessary it was for us to set out, as we have done, with inquiring previously into the nature and faculties of man. For how could we have<34> discovered the rules by which he is to square his conduct, unless we antecedently know in what manner he acts, and what are the springs, as it were, that put him in motion?
He is accountable for his actions: they can be imputed to him.II. Another remark, which is a consequence of the foregoing, is, that since man is the immediate author of his actions, he is accountable for them; and in justice and reason they can be imputed to him. This is a point of which we think it necessary to give here a short explication.
The term of imputing is borrowed of arithmetic, and signifies properly, to set a sum down to somebody’s account. To impute an action therefore to a person, is to attribute it to him as to its real author, to set it down, as it were, to his account, and to make him answerable for it. Now it is evidently an essential quality of human actions, as produced and directed by the understanding and will, to be susceptible of imputation; that is, it is plain that man can be justly considered as the author and productive cause of those actions, and that for this very reason it is right to make him accountable for them, and to lay to his charge the effects that arise from thence as natural consequences. In fact, the true reason why a person cannot complain of being made answerable for an action, is that he has produced it himself knowingly and willingly. Every thing almost that is said and done in human society, supposes this principle generally received, and every body acquiesces in it from an inward conviction.<35>
Principle of imputability. We must not confound it with imputation.III. We must therefore lay down, as an incontestable and fundamental principle of the imputability of human actions, that every voluntary action is susceptible of imputation; or, to express the same thing in other terms, that every action or omission subject to the direction of man, can be charged to the account of the person in whose power it was to do it or let it alone; and on the contrary, every action, whose existence or non-existence does not depend on our will, cannot be imputed to us. Observe here, that omissions are ranked by civilians and moralists among the number of actions; because they apprehend them as the effect of a voluntary suspension of the exercise of our faculties.
Such is the foundation of imputability, and the true reason why an action or omission is of an imputable nature. But we must take particular notice, that though an action is imputable, it does not ensue from thence only, that it merits actually to be imputed. Imputability and imputation are two things, which we should carefully distinguish. The latter supposes, besides the imputability, some moral necessity of acting or not, after a certain manner; or, which amounts to the same, some obligation that requires a thing to be done or omitted that can be really done or omitted.
Puffendorf* does not seem to have sufficiently distinguished between these two ideas. It is enough for our present purpose to point out the distinction,<36> deferring to treat of actual imputation, and to establish the principles thereof, till we have explained the nature of obligation, and shewn that man is actually obliged to conform his actions to rule.
What has been hitherto advanced, properly regards the nature of the human mind; or the internal faculties of man, as they render him capable of moral direction. But in order to complete our knowledge of human nature, we should view it likewise in its extrinsic condition, in its wants and dependancies, and in the various relations wherein it is placed; in fine,1 in what we may call the different states of man. For it is our situation in life that decides the use we ought to make of our faculties.
Further inquiry into what relates to human nature, by considering the different states of man.
Definition. Division.I. The different states of man are nothing more than the situation wherein he finds himself in regard to the beings that surround him, with the relations from thence resulting.
We shall be satisfied with taking here a cursory view of some of the principal states, and to render them distinguishable by their essential characteristics, without entering into an exact inquiry, which should naturally take place, when treating in particular of each state.1 <37>
All these different states may be ranged under two general classes: some are primitive and original; others adventitious.
Primitive and original states.II. Primitive and original states are those in which man finds himself placed by the very hand of God, independent of any human action.
1. State of man with regard to God.Such is, in the first place, the state of man with regard to God; which is a state of absolute dependance. For let us make but never so small a use of our faculties, and enter into the study of ourselves, it will evidently appear, that it is from this first Being we hold our life, reason, and all other concomitant advantages; and that in this and every other respect we experiance daily, in the most sensible manner, the effects of the power and goodness of the Creator.
2. State of society.III. Another primitive and original state, is that wherein men find themselves in respect to one another. They are all inhabitants of the same globe,2 placed in a kind of vicinity to each other; have all one common nature, the same faculties, same inclinations, wants and desires. They cannot do without one another; and it is only by mutual assistance they are capable of attaining to a state of ease and tranquillity. Hence we observe a natural inclination in mankind that draws them towards each other, and establishes a commerce of services and benevolence between them, from whence results the common good of the whole, and the particular advantage of individuals. The natural state therefore of men among themselves, is a state of union and society; society being nothing more than the union<38> of several persons for their common advantage. Besides, it is evident that this must be a primitive state, because it is not the work of man, but established by divine institution. Natural society is a state of equality and liberty; a state in which all men enjoy the same prerogatives, and an intire independance on any other power but God. For every man is naturally master of himself, and equally to his fellow-creatures, so long as he does not subject himself to another person’s authority by a particular convention.
3. State of solitude.IV. The opposite state to that of society, is solitude; that is, the condition in which we imagine man would find himself, were he to live absolutely alone, abandoned to his own thoughts,4. Peace: War. and destitute of all commerce with those of his own species. Let us suppose a man arrived to the age of maturity, without having had the advantage of education or any correspondence at all with the rest of mankind, and consequently without any other knowledge but that which he has of himself acquired; such a man would be undoubtedly the most miserable of all animals. We should discover nothing in him but weakness, savageness, and ignorance; scarce would he be able to satisfy the wants of his body, exposed, poor wretch, to perish with hunger or cold, or by the ravenous teeth of wild beasts. What a vast difference between such a state and that of society, which by the mutual succours that men receive from one another, procures them all the knowledge, conveniency, and ease, that form the security, pleasure, and happiness of life? True it is, that all these advantages suppose that men, far from prejudicing one<39> another, live in harmony and concord, and entertain this union by mutual good offices. This is what we call a state of peace, whereas those who endeavour to do harm, and those also who find themselves obliged to guard against it, are in a state of war; a state of violence, diametrically opposite to that of society.3
State of man with regard to the goods of the earth.V. Let us observe, in the next place, that man finds himself naturally attached to the earth, from whose bosom he draws whatever is necessary for the preservation and conveniences of life. This situation produces another primitive state of man, which is likewise deserving of our attention.
Such in effect is the natural constitution of the human body, that it cannot subsist intirely of itself, and by the sole force of its temperament. Man, at all ages, stands in need of several external succours for his nourishment, as well as for repairing his strength, and keeping his faculties in proper order. For this reason our Creator has sown plentifully around us such things as are necessary for our wants, and has implanted in us at the same time the instincts and qualifications proper for applying these things to our advantage. The natural state therefore of man considered in this light, and in respect to the goods of the earth, is a state of indigence and incessant wants, against which he would be incapable to provide in a suitable manner, were he not to exercise his industry by constant labour. Such are the principal of those states that are called primitive and original.<40>
Adventitious states. 1. Family. 2. Marriage.VI. But man being naturally a free agent, he is capable of making great modifications in his primitive state, and of giving by a variety of establishments a new face to human life. Hence those adventitious states are formed, which are properly the work of man, wherein he finds himself placed by his own act, and in consequence of establishments, whereof he himself is the author. Let us take a cursory view of the principal of these states.
The first that presents itself to us, is the state of families. This is the most natural and most ancient of all societies, and the very foundation of that which is called national; for a people or nation is only an assemblage or composition of several families.
Families begin by marriage; and it is nature itself that invites men to this union. Hence children arise, who by perpetuating the several families, prevent the extinction of human societies, and repair the breaches made every day by death.4
The family state is productive of various relations; as those of husband, wife, father, mother, children, brothers, sisters, and all the other degrees of kindred, which are the first tie of human society.
3. Weakness of man at his birth. 4. Natural dependance of children on their parents.VII. Man considered in his birth is weakness and impotency itself, in regard as well to the body, as to the soul. It is even remarkable, that the state of weakness and infancy lasts longer in man than in any other animal. He is beset and pressed on all sides by a thousand wants, and destitute of knowledge, as well as strength, finds himself in an absolute incapacity of relieving them: he is therefore under a par-<41>ticular necessity of recurring to external assistance. Providence for this reason has inspired parents with that instinct or natural tenderness, which prompts them so eagerly to delight in the most troublesome cares, for the preservation and good of those whom they have brought into the world. It is likewise in consequence of this state of weakness and ignorance in which children are born, that they are naturally subject to their parents; whom nature has invested with all the authority and power necessary for governing those, whose advantage they are to study and procure.5
The state of property.VIII. The property of goods is another very important establishment, which produces a new adventitious state. It modifies the right which all men had originally to earthly goods; and distinguishing carefully what belongs to individuals, ensures the quiet and peaceable enjoyment of what they possess; by which means it contributes to the maintenance of peace and harmony among mankind. But since all men had originally a right to a common use of whatever the earth produces for their several wants; it is evident therefore, that if this natural power is actually restrained and limited in divers respects, this must necessarily arise from some human act; and consequently the state of property, which is the cause of those limitations, ought to be ranked among the adventitious states.
Civil state and government.IX. But among all the states established by the act of man, there is none more considerable than the civil state, or that of civil society and government. The<42> essential character of this society, which distinguishes it from the forementioned society of nature, is the subordination to a supreme authority, exclusive of equality and independance. Mankind were originally divided into families only, and not into nations. Those families lived under the paternal government of the person who was their chief, as their father or grandfather. But when they came afterwards to increase and unite for their common defence, they composed a national body, governed by the will of him, or of those on whom they had conferred the authority. This is the origin of what we call civil government, and of the distinction of sovereign and subjects.
The civil state and property of goods give rise to several other adventitious states.X. The civil state and property of goods produced several other establishments, which form the beauty and ornament of society, and from whence so many adventitious states arise: such as the different posts or offices of those who have any share in the government; as magistrates, judges, state-officers, ministers of religion, physicians, &c. To which may be added the polite arts, trades, agriculture, navigation, commerce, with their several dependancies, whereby human life is so agreeably and advantageously diversified.
True idea of the natural state of man.XI. Such are the principal states produced by human consent. And yet, as these different modifications of the primitive state of man are the effect of his natural liberty, the new relations and different states from thence arising, may be very well considered as so many natural states; provided however that the use which men make of their liberty, in this re-<43>spect, has nothing in it unconformable to their natural constitution, that is, to reason and the state of society.
It is therefore proper to observe, in relation to this subject, that when we speak of the natural state of man, we are to understand not only that natural and primitive state, in which he is placed, as it were, by the hands of nature herself; but moreover all those into which man enters by his own act and agreement, and that are conformable in the main to his nature, and contain nothing but what is agreeable to his constitution and the end for which he was formed. For since man himself, as a free and intelligent being, is able to see and know his situation, as also to discover his ultimate end, and in consequence thereof to take the right measures to attain it; it is properly in this light we should consider his natural state, to form thereof a just idea. That is, the natural state of man is, generally speaking, that which is conformable to his nature, constitution, and reason, as well as to the good use of his faculties, considered in their full maturity and perfection. We shall be particularly attentive to this remark, the importance of which will appear more sensibly by the application and use that may be made thereof on several occasions.
Difference between original and adventitious states.XII. Let us not forget to observe likewise, that there is this difference between the primitive and adventitious states, that the former being annexed, as it were, to the nature and constitution of man, such as he has received them from God, are, for this very reason, common to all mankind. The same cannot be said of the adventitious states; which, supposing an hu-<44>man act or agreement, cannot of themselves be indifferently suitable to all men, but to those only that contrived and procured them.
Let us add, in fine, that several of those states may be found combined and united in the same person, provided they have nothing incompatible in their nature. Thus the same person may be father of a family, judge, minister of state, &c. all at the same time.
Such are the ideas we are to form of the nature and different states of man; and it is of all these parts united and compacted together, that the intire system of humanity is formed. These are like so many wheels of the same machine, which combined and managed by a dexterous hand, conspire all to the same end; and, on the contrary, unskilfully directed, embarrass and destroy each other. But how man, in fine, is enabled to conduct himself in this prudent manner, and what rule he is to observe in order to attain this happy end, is what we have still to inquire, and forms the subject of the following chapters.
That man ought to square his conduct by rule; the method of finding out this rule; and the foundations of right in general.
Definition of a rule.I. Let us begin with an explication of the terms. A rule, in its proper signification, is an instrument, by means of which we draw the shortest<45> line from one point to another, which for this very reason is called a straight line.1
In a figurative and moral sense, a rule imports nothing else, but a principle, or maxim, which furnishes man with a sure and concise method of attaining to the end he proposes.
It is not convenient, that man should live without a rule.II. The first thing we are to inquire in regard to this subject* is, whether it is really agreeable to the nature of man to submit his actions to a fixt and invariable rule; or whether, on the contrary, he is allowed to abandon himself indifferently to all the motions of his will, and thus to enjoy, without either limit or impediment, the extreme facility with which this faculty turns itself on all sides, in consequence of its natural flexibility.
The reflexions we have given in the preceding chapters, are of themselves, and independent of any other argument, a sufficient and convincing proof, that the nature and constitution of man requires the establishment of some rule. Every thing in nature has its destination and end; and consequently, each creature is conducted to its end by a proper principle of direction. Man, who holds a considerable rank among the beings that surround him, participates undoubtedly of this fixt and universal order. And whether we consider him in himself as an intelligent and rational being; or view him as a member of society; or whether, in fine, we regard him as the handy-work of God, and deriving from this first being his faculties, state, and existence; all these circumstances<46> evidently indicate an end, a destination, and consequently imply the necessity of a rule. Had man been created to live at random without any fixt and determinate view, without knowing whither he is to direct his course, or what road he ought to take; it is evident that his noblest faculties would be of no manner of use to him. Wherefore waving all disquisitions concerning the necessity of a rule, let us endeavour rather to discover what this rule is, which alone, by enlightening the understanding, and directing our actions to an end worthy of him, is capable of forming the order and beauty of human life.
A rule supposes an end, an aim.III. When we speak of a rule in relation to human actions, two things are manifestly supposed: the first, that human conduct is susceptible of direction, as we have already proved; the second, that man in all his steps and actions proposes to himself a scope or end which he is desirous to attain.
The ultimate end of man is happiness.IV. Now let man reflect but never so little on himself, he will soon perceive that every thing he does is with a view of happiness, and that this is the ultimate end he proposes in all his actions, or the last term to which he reduces them. This is a first truth, of which we have a continual conviction from our own internal sense. Such, in effect, is the nature of man, that he necessarily loves himself, that he seeks in every thing and every where his own advantage, and can never be diverted from this pursuit. We naturally desire, and necessarily wish for good. This desire anticipates all our reflexions, and is not in our own election; it predominates in us, and becomes<47> the primum mobile of all our determinations; our hearts being never inclined towards any particular good, but by the natural impression which determines us to good in general. It is not in our power to change this bent of the will, which the Creator himself has implanted in us.2
It is the system of providence.V. This system of providence extends to all beings endowed with sense and knowledge. Even animals themselves have a like instinct; for they all love themselves, endeavouring at self-preservation by all sorts of means, eagerly pursuing whatever seems good or useful to them, and turning, on the contrary, from whatever appears prejudicial or bad. The same propensity shews itself in man, not only as an instinct, but moreover as a rational inclination approved and strengthened by reflexion. Hence whatsoever presents itself to us as an object proper to promote our happiness, must of necessity please us; and every thing that appears opposite to our felicity, becomes of course the object of our aversion. The more we study man, the more we are convinced that here, in reality, lies the source of all our tastes; here the grand spring which sets us in motion.
The desire of happiness is essential to man, and inseparable from reason.VI. And indeed, if it be natural to every intelligent and rational being, to act always with a fixt view and determinate end; it is no less evident, that this view or end must be ultimately reduced to himself, and consequently to his own advantage and happiness. The desire therefore of happiness is as essential to a man, and as inseparable from his nature,<48> as reason itself; for reason, as the very etymology of the word implies, is nothing more than a calculation and account. To reason, is to calculate, and to draw up an account, after balancing every thing, in order to see on which side the advantage lies. It would therefore imply a contradiction, to suppose a rational being, that could absolutely forego its interest, or be indifferent with regard to its own felicity.3
Self-love is a principle that has nothing vicious in itself.VII. We must therefore take care not to consider self-love, and that sense or inclination which fixes us so strongly to our happiness, as a principle naturally vicious, and the fruit of human depravation. This would be accusing the author of our existence, and converting his noblest gifts into poison. Whatever comes from a being supremely perfect, is in itself good; and were we to condemn the sense or inclination of self-love as bad in itself, under a pretence that by a misconstruction and wrong use thereof it is the source of an infinite number of disorders, we should for the very same motives be obliged to condemn reason; because it is from the abuse of this faculty that the grossest errors and most extravagant irregularities of men proceed.4
It may appear surprizing to some that we should have stopt here, to investigate and explain the truth of a principle, which one would imagine is obvious to every body, to the learned as well as the vulgar. And yet it was absolutely necessary; because this is a truth of the very last importance, which gives us the key, as it were, of the human system. It is true, that all ethic writers agree that man is made for happiness, and naturally desires it (for how is it<49> possible not to hear the voice of nature,5 which rises from the very bottom of the heart?). But a great many, after acknowledging this principle, seem to lose sight of it, and not attending to the consequences that flow from thence, they erect their systems on different, and sometimes quite opposite foundations.
Man cannot attain to happiness but by the help of reason.VIII. But if it be true that man does nothing but with a view of happiness, it is no less certain that reason is the only way he has to attain it.
In order to establish this second proposition or truth, we have only to attend to the very idea of happiness, and to the notion we have of good and evil. Happiness is that internal satisfaction of the soul which arises from the possession of good; good is whatever is agreeable to man for his preservation, perfection, entertainment, and pleasure. Evil is the opposite of good.
Man incessantly experiences, that there are some things convenient, and others inconvenient to him; that the former are not all equally convenient, but some more than others; in fine, that this conveniency depends, for the most part, on the use he knows how to make of things, and that the same thing which may suit him, using it after a certain manner and measure, becomes unsuitable when this use exceeds its limits. It is only therefore by investigating the nature of things, as also the relations they have between themselves and with us, that we are capable of discovering their fitness or disagreement with our felicity, of discerning good from evil, of ranging every thing in its proper order, of setting a right<50> value upon each, and of regulating consequently our researches and desires.
But is there any other method of acquiring this discernment, but by forming just ideas of things and their relations, and by deducing from these first ideas the consequences that flow from thence by exact and close argumentations? Now it is reason alone that directs all these operations. Yet this is not all: for as in order to arrive at happiness, it is not sufficient to form just ideas of the nature and state of things, but it is also necessary that the will should be directed by those ideas and judgments in the series of our conduct; so it is certain, that nothing but reason can communicate and support in man the necessary strength for making a right use of liberty, and for determining in all cases according to the light of his understanding, in spite of all the impressions and motions that may lead him to a contrary pursuit.
Reason is therefore the primitive rule of man.IX. Reason is therefore the only means, in every respect, that man has left to attain to happiness, and the principal end for which he has received it. All the faculties of the soul, its instincts, inclinations, and even the passions, are relative to this end; and consequently it is this same reason that is capable of pointing out the true rule of human actions, or, if you will, she herself is this primitive rule. In fact, were it not for this faithful guide, man would lead a random life, ignorant even of what regards himself, unacquainted with his own origin and destination, and with the use he ought to make of whatever surrounds him; stumbling, like a blind man, at every<51> step; lost, in fine, and bewildered in an inextricable labyrinth.
What is Right in general?X. Thus we are conducted naturally to the first idea of the word Right, which in its most general sense, and that to which all the particular significations bear some relation, is nothing else but whatever reason certainly acknowledges as a sure and concise means of attaining happiness, and approves as such.
This definition is the result of the principles hitherto established. In order to be convinced of its exactness, we have only to draw these principles together, and unite them under one prospect. In fact, since right (droit) in its primary notion signifies whatever directs, or is well directed; since direction supposes a scope and an end, to which we are desirous of attaining; since the ultimate end of man is happiness; and, in fine, since he cannot attain to happiness but by the help of reason; does it not evidently follow, that Right in general is whatever reason approves as a sure and concise means of acquiring happiness? It is likewise in consequence of these principles, that reason giving its approbation to itself, when it happens to be properly cultivated, and arrived to that state of perfection in which it knows how to use all its discernment, bears, by way of preference or excellence, the appellation of right reason, as being the first and surest means of direction, whereby man is enabled to acquire felicity.
That we may not forget any thing in the analysis of these first ideas, it is proper to observe here, that the Latins express what we call Right by the<52> word jus, which properly signifies an order or precept.* These different denominations undoubtedly proceed from this, that reason seems to command with authority whatever it avows to be a right and sure means of promoting our felicity. And as we have only to seek for what is right, in order to know what reason commands us, hence the natural connexion of these two ideas arose in respect to the rules of right reason. In a word, of two ideas naturally connected, the Latins have followed one, and we the other.
General rules of conduct prescribed by reason. Of the nature and first foundations of obligation.
Reason gives us several rules of conduct.I. It is already a great point gained, to have discovered the primitive rule of human actions, and to know this faithful guide, which is to direct the steps of man, and whose directions and counsels he may follow with an intire confidence. But let us not stop here; and since experience informs us that we are frequently mistaken in our judgments concerning good and evil, and that these erroneous judgments throw us into most dangerous irregularities, let us consult therefore our<53> guide, and learn which are the characters of real good and evil, in order to know in what true felicity consists, and what road we are to take in order to attain it.
First rule. To make a right distinction of good and evil.II. Though the general notion of good and evil be fixed in itself, and invariable, still there are various sorts of particular goods and evils, or of things that pass for such in the minds of men.
1. The first counsel therefore that reason gives us, is to examine well into the nature of good and evil, and to observe carefully their several differences, in order to set upon each thing its proper value.1
This distinction is easily made. A very slight attention to what we continually experience, informs us, that man being composed of body and soul, there are consequently two sorts of goods and evils, spiritual and corporeal. The first are those that proceed only from our thoughts; the second arise from the impressions of external objects on our senses. Thus, the sensible pleasure resulting from the discovery of an important truth; or the self-approbation arising from a consciousness of having discharged our duty, &c. are goods purely spiritual: as the chagrin of a geometrician for being unable to find out a demonstration; or the remorse a person feels for having committed a bad action, &c. are mere spiritual pains. With regard to corporeal goods and evils, they are sufficiently known; on one side, they are health, strength, beauty; on the other, sickness, weakness, pain, &c. These two sorts of goods and evils are interesting to man, and cannot be reckoned indifferent, by reason that man being com-<54>posed of body and soul, it is plain his perfection and happiness depend on the good state of these two parts.
2. We likewise observe, that appearances frequently deceive us, and what at first sight carries with it the face of good, proves to be a real evil, whilst an apparent evil oftentimes conceals an extraordinary good. We should therefore make a distinction between real goods and evils, and those that are false and apparent. Or, which amounts to pretty near the same thing, there is sometimes a pure good and a pure evil, and sometimes there is a mixture of both, which does not obstruct our discerning what part it is that prevails, and whether the good or evil be predominant.
3. A third difference regards their duration. In this respect goods and evils have not all the same nature; some are solid and durable, others transitory and inconstant. Whereto we may add, that there are goods and evils of which we are masters, as it were, and which depend in such a manner on ourselves, that we are able to fix the one, in order to have a constant enjoyment of them, and to shun or get rid of the others. But they are not all of this kind; some goods there are that escape our most eager pursuits, whilst some evils overtake us, notwithstanding our most sollicitous efforts to avoid them.
4. There are at present goods and evils, which we actually feel; and future goods and evils, which are the objects of our hopes or fears.
5. There are particular goods and evils, which affect only some individuals; and others that are<55> common and universal, of which all the members of the society partake. The good of the whole is the real good; that of one of the parts, opposite to the good of the whole, is only an apparent good, and consequently a real evil.
6. From all these remarks we may in fine conclude, that goods and evils not being all of the same species, there are consequently some differences amongst them, and that compared together, we find there are some goods more excellent than others, and evils more or less incommodious. It happens likewise, that a good compared with an evil, may be either equal or greater, or lesser; from whence several differences or gradations arise, that are worthy of special notice.
These particulars are sufficient to shew the utility of the principal rule we have given, and how essential it is to our happiness to make a just distinction of goods and evils. But this is not the only counsel that reason gives us, we are going to point out some others that are not of less importance.
Second rule. True happiness cannot consist in things that are inconsistent with the nature and state of man.III. 2. True happiness cannot consist in things that are inconsistent with the nature and state of man. This is another principle, which naturally flows from the very notion of good and evil. For whatsoever is inconsistent with the nature of a being, tends for this very reason to degrade or destroy it, to corrupt or alter its constitution; which being directly opposite to the preservation, perfection, and good of this being, subverts the foundation of its felicity. Wherefore reason being the noblest part of man, and constituting his prin-<56>cipal essence, whatever is inconsistent with reason, cannot form his happiness. To which I add, that whatever is incompatible with the state of man, cannot contribute to his felicity; and this is a point as clear as evidence can make it. Every being, that by its constitution has essential relations to other beings, which it cannot shake off, ought not to be considered merely as to itself, but as constituting a part of the whole to which it is related. And it is sufficiently manifest, that it is on its situation in regard to the beings that surround it, and on the relations of agreement or opposition it has with them, that its good or bad state, its happiness or misery, must in great measure depend.
Third rule. To compare the present and the future together.IV. 3. In order to procure for ourselves a solid happiness, it is not sufficient to be attentive to the present good and evil, we must likewise examine their natural consequences; to the end, that comparing the present with the future, and balancing one with the other, we must know beforehand what may be the natural result.
Fourth rule.4. It is therefore contrary to reason, to pursue a good that must certainly be attended with a more considerable evil.*
Fifth rule.5. But on the contrary, nothing is more reasonable than to resolve to bear with an evil, from whence a greater good must certainly arise.
The truth and importance of these maxims are self-obvious. Good and evil being two opposites,<57> the effect of one destroys that of the other; that is to say, the possession of a good, attended with a greater evil, renders us really unhappy; and on the contrary, a slight evil, which procures us a more considerable good, does not hinder us from being happy. Wherefore, every thing well considered, the first ought to be avoided as a real evil, and the second should be courted as a real good.
The nature of human things requires us to be attentive to these principles. Were each of our actions restrained in such a manner, and limited within itself, as not to be attended with any consequence, we should not be so often mistaken in our choice, but should be almost sure of grasping the good. But informed as we are by experience, that things have frequently very different effects from what they seemed to promise, insomuch that the most pleasing objects are attended with bitter consequences, and on the contrary a real and solid good is purchased with labour and pains, prudence does not allow us to fix our whole attention on the present. We should extend our views to futurity, and equally weigh and consider the one and the other, in order to pass a solid judgment on them, a judgment sufficient to fix properly our resolutions.
Sixth rule. To give the goods that excel most, the preference.V. 6. For the same reason, we ought to prefer a greater to a lesser good; we ought always to aspire to the noblest goods that suit us, and proportion our desires and pursuits to the nature and merit of each good. This rule is so evident, that it would be losing time to pretend to prove it.<58>
Seventh rule. In some cases possibility only, and by a much stronger reason probability, ought to determine us.VI. 7. It is not necessary to have an intire certainty in regard to considerable goods and evils: Mere possibility, and much more so, probability, are sufficient to induce a reasonable person to deprive himself of some trifling good, and even to suffer some slight evil, with a design of acquiring a far greater good, and avoiding a more troublesome evil.
This rule is a consequence of the foregoing ones; and we may affirm, that the ordinary conduct of men shews they are sensibly convinced of the prudence and necessity thereof. In effect, what is the aim of all this tumult of business into which they hurry themselves? To what end and purpose are all the labours they undertake, all the pains and fatigues they endure, all the perils to which they constantly expose themselves? Their intent is to acquire some advantages which they imagine they do not purchase too dear; though these advantages are neither present, nor so certain, as the sacrifices they must make in order to obtain them.
This is a very rational manner of acting. Reason requires, that in default of certainty we should take up with probability as the rule of our judgment and determination; for probability in that case is the only light and guide we have. And unless it is more eligible to wander in uncertainty, than to follow a guide; unless we are of opinion that our lamp ought to be extinguished when we are deprived of the light of the sun; it is reasonable to be directed by probability, when we are incapable to come at evidence. It is easier to attain our aim by the help<59> of a faint or glimmering light, than by continuing in darkness.*
Eighth rule. To have a relish for true goods.VII. 8. We should be sollicitous to acquire a taste for true goods, insomuch that goods of an excellent nature, and acknowledged as such, should excite our desires, and induce us to make all the efforts necessary for getting them into our possession.
This last rule is a natural consequence of the others, ascertaining their execution and effects. It is not sufficient to have enlightened the mind in respect to the nature of these goods and evils that are capable of rendering us really happy or unhappy; we should likewise give activity and efficacy to these principles, by forming the will so as to determine itself by taste and habit, pursuant to the counsels of enlightened reason. And let no one think it impossible to change<60> our inclinations, or to reform our tastes. It is with the taste of the mind, as with that of the palate. Experience shews, that we may alter both, so as to find pleasure at length in things that before were disagreeable to us. We begin to do a thing with pain, and by an effort of reason; afterwards we familiarise ourselves to it by degrees; then a frequency of acts renders it easier to us, the repugnance ceases, we view the thing in a different light from what we did before; and use at length makes us love a thing that before was the object of our aversion. Such is the power of habit: it makes us insensibly feel so much ease and satisfaction in what we are acustomed to, that we find it difficult afterwards to abstain from it.
Our mind acquiesces naturally in these maxims; and they ought to influence our conduct.VIII. These are the principal counsels we receive from reason. They are in some measure2 a system of maxims, which drawn from the nature of things, and particularly from the nature and state of man, acquaint us with what is essentially suitable to him, and include the most necessary rules for his perfection and happiness.
These general principles are of such a nature, as to force, as it were, our assent; insomuch that a clear and cool understanding, disengaged from the prejudice and tumult of passions, cannot help acknowledging their truth and prudence. Every one sees how useful it would be to man to have these principles present always in his mind, that by the application and use of them in particular cases, they may insensibly become the uniform and constant rule of his inclinations and conduct.<61>
Maxims, in fact, like these are not mere speculations: they should naturally influence our morals, and be of service to us in practical life. For to what purpose would it be to listen to the advice of reason, unless we intended to follow it? Of what signification are those rules of conduct, which manifestly appear to us good and useful, if we refuse to conform to them? We ourselves are sensible that this light was given us to regulate our steps and motions. If we deviate from these maxims, we inwardly disapprove and condemn ourselves, as we are apt to condemn any other person in a similar case. But if we happen to conform to these maxims, it is a subject of internal satisfaction, and we commend ourselves, as we commend others who have acted after this manner. These sentiments are so very natural, that it is not in our power to think otherwise. We are forced to respect these principles, as a rule agreeable to our nature, and on which our felicity depends.
Of obligation generally considered.IX. This agreeableness sufficiently known implies a necessity of squaring our conduct by it. When we mention necessity, it is plain we do not mean a physical but moral necessity, consisting in the impression made on us by some particular motives, which determine us to act after a certain manner, and do not permit us to act rationally the opposite way.
Finding ourselves in these circumstances, we say we are under an obligation of doing or omitting a certain thing; that is, we are determined to it by solid reasons, and engaged by cogent motives, which, like so many ties, draw our will to that side. It is in this sense a person says he is obliged. For whether<62> we are determined by popular opinion, or whether we are directed by civilians and ethic writers, we find that the one and the other make obligation properly consist in a reason, which being well understood and approved, determines us absolutely to act after a certain manner preferable to another. From whence it follows, that the whole force of this obligation depends on the judgment, by which we approve or condemn a particular manner of acting. For to approve, is acknowledging we ought to do a thing; and to condemn, is owning we ought not to do it. Now ought and to be obliged are synonymous terms.
We have already hinted at the natural analogy between the proper and literal sense of the word obliged, and the figurative signification of this same term. Obligation properly denotes a tie;* a man obliged, is therefore a person who is tied. And as a man bound with cords or chains, cannot move or act with liberty, so it is very near the same case with a person who is obliged; with this difference, that in the first case, it is an external and physical impediment which prevents the effect of one’s natural strength; but in the second it is only a moral tie, that is, the subjection of liberty is produced by reason, which being the primitive rule of man and his faculties, directs and necessarily modifies his operations in a manner suitable to the end it proposed.
We may therefore define obligation, considered in general and in its first origin, a restriction of natural liberty, produced by reason; inasmuch as the counsels which reason gives us, are so many motives, that determine man to act after a certain manner preferable to another.<63>
X. Such is the nature of primitive and original obligation. From thence it follows,Obligation may be more or less strong. that this obligation may be more or less strong, more or less rigorous; according as the reasons that establish it have more or less weight, and consequently as the motives from thence resulting have more or less impression on the will. For manifest it is, that the more these motives are cogent and efficacious, the more the necessity of conforming our actions to them becomes strong and indispensable.
Dr. Clark’s opinion on the nature and origin of obligation.XI. I am not ignorant, that this explication of the nature and origin of obligation is far from being adopted by all civilians and ethic writers. Some pretend, †that the natural fitness or unfitness which we acknowledge in certain actions, is the true and original foundation of all obligation; thatvirtue has an intrinsic beauty which renders it amiable of itself, and that vice on the contrary is attended with an intrinsic deformity, which ought to make us detest it, and this antecedent to and independent of the good and evil, of the rewards and punishments which may arise from the practice of either.
But this opinion, methinks, can be supported no farther than as it is reduced to that which we have just now explained. For to say that virtue has of itself a natural beauty, which renders it worthy of our love, and that vice, on the contrary, merits our aversion; is not this acknowledging, in fact, that we have reason to prefer one to the other? Now whatever this reason be, it certainly can never become<64> a motive capable of determining the will, but inasmuch as it presents to us some good to acquire, or tends to make us avoid some evil; in short, only as it is able to contribute to our satisfaction, and to place us in a state of tranquillity and happiness. Thus it is ordained by the very constitution of man, and the nature of human will. For as good, in general, is the object of the will; the only motive capable of setting it in motion, or of determining it to one side preferable to another, is the hope of obtaining this good. To abstract therefore from all interest in respect to man, is depriving him of all motive of acting, that is, reducing him to a state of inaction and indifference. Besides, what idea should we be able to form of the agreeableness or disagreeableness of human actions, of their beauty or turpitude, of their proportion or irregularity, were not all this referred to man himself, and to what his destination, his perfection, his welfare, and, in short, his true felicity requires?
Monsieur Barbeyrac’s opinion concerning this subject.XII. Most civilians are of a different opinion from that of Dr. Clark. “* They establish as a principle of obligation, properly so called, the will of a superior being, on whom dependance is acknowledged. They pretend there is nothing but this will, or the orders of a being of this kind, that can bridle our liberty, or prescribe particular rules to our actions. They add, that neither the relations of proportion nor disagreement which we acknow-<65>ledge in the things themselves, nor the approbation they receive from reason, lay us under an indispensable necessity of following those ideas, as the rules of our conduct. That our reason being in reality nothing else but ourselves, no body, properly speaking, can lay himself under an obligation. From whence they conclude, that the maxims of reason, considered in themselves, and independent of the will of a superior, have nothing obligatory in their nature.”
This manner of explaining the nature, and laying the foundation of obligation, appears to me insufficient, because it does not ascend to the original source, and real principles. True it is, that the will of a superior obliges those who are his dependants; yet this will cannot have such an effect, but inasmuch as it meets with the approbation of our reason. For this purpose, it is not only necessary that the superior’s will should contain nothing in itself opposite to the nature of man; but moreover it ought to be proportioned in such a manner to his constitution and ultimate end, that we cannot help acknowledging it as the rule of our actions; insomuch that there is no neglecting it without falling into a dangerous error; and, on the contrary, the only means of attaining our end is to be directed by it. Otherwise, it is inconceivable how man can voluntarily submit to the orders of a superior, or determine willingly to obey him. Own indeed I must, that, according to the language of civilians, the idea of a superior who commands, must intervene to establish an obligation, such as is commonly considered. But unless we trace things higher, by grounding even the authority of this<66> superior on the approbation he receives from reason, it will produce only an external constraint, very different from obligation, which hath of itself a power of penetrating the will, and moving it by an inward sense; insomuch that man is of his own accord, and without any restraint or violence, inclined to obey.3
Two sorts of obligations; internal and external.XIII. From all these remarks we may conclude, that the differences between the principal systems concerning the nature and origin of obligation, are not so great as they appear at first sight. Were we to make a closer inquiry into these opinions, by ascending to their primitive sources, we should find that these different ideas, reduced to their exact value, far from being opposite, agree very well together, and ought even to concur, in order to form a system connected properly with all its essential parts, in relation to the nature and state of man. This is what we intend more particularly to perform hereafter.* It is proper at present to observe, that there are two sorts of obligations, one internal, and the other external. By internal obligation, I understand that which is produced only by our own reason, considered as the primitive rule of conduct, and in consequence of the good or evil the action in itself contains. By external obligation, we mean that which arises from the will of a being, on whom we allow ourselves dependent, and who commands or prohibits some particular things, under a commination of punishment. Whereto we must add, that these two obligations, far from being opposite to each other, have, on the contrary, a perfect agreement. For as the external obligation<67> is capable of giving a new force to the internal, so the whole force of the external obligation ultimately depends on the internal; and it is from the agreement and concurrence of these two obligations that the highest degree of moral necessity arises, as also4 the strongest tie, or the properest motive to make impression on man, in order to determine him to pursue steadily and never to deviate from some fixt rules of conduct; in a word, by this it is that the most perfect obligation is formed.
Of right considered as a faculty, and of the obligation thereto corresponding.
The word right is taken in several particular senses, which are all derived from the general notion.I. Besides the general idea of right, such as has been now explained, considering it as the primitive rule of human actions; this term is taken in several particular significations, which we must here point out.
But, previous to every thing else, we should not forget the primitive and general notion we have given of right. For since it is from this notion, as from its principle, that the subject of this and the following chapters is deduced; if our reasonings are exact in themselves, and have a necessary connexion with the principle, this will furnish us with a new argument in its favour. But if, unexpectedly, it should turn out otherwise, we shall have at least the advantage of detecting the error in its very source, and of being better able to correct it. Such is the effect of a just method: we are convinced that a general idea is exact,<68> when the particular ideas are reducible to it as different branches to their trunk.
Definition of right, considered as a faculty.II. In the first place, Right is frequently taken for a personal quality, for a power of acting or faculty. It is thus we say, that every man has a right to attend to his own preservation; that a parent has a right to bring up his children; that a sovereign has a right to levy troops for the defence of the state, &c.
In this sense we must define Right, a power that man hath to make use of his liberty and natural strength in a particular manner, either in regard to himself, or in respect to other men, so far as this exercise of his strength and liberty is approved by reason.
Thus, when we say that a father has a right to bring up his children, all that is meant hereby is, that reason allows a father to make use of his liberty and natural force in a manner suitable to the preservation of his children, and proper to cultivate their understandings, and to train them up in the principles of virtue. In like manner, as reason gives its approbation to the sovereign in whatever is necessary for the preservation and welfare of the state, it particularly authorises him to raise troops and bring armies into the field, in order to oppose an enemy; and in consequence hereof we say he has a right to do it. But, on the contrary, we affirm, that a prince has no right, without a particular necessity, to drag the peasant from the plough, or to force poor tradesmen from their families; that a father has no right to expose his children, or to put them to death, &c. because these things, far from being approved, are expresly condemned by reason.<69>
We must take care to distinguish between simple power and right.III. We must not therefore confound a simple power with right. A simple power is a physical quality; it is a power of acting in the full extent of our natural strength and liberty: but the idea of right is more confined. This includes a relation of agreeableness to a rule which modifies the physical power, and directs its operations in a manner proper to conduct man to a certain end. It is for this reason we say, that right is a moral quality. It is true there are some that rank power as well as right among the number of moral qualities:* but there is nothing in this essentially opposite to our distinction. Those who rank these two ideas among moral entities, understand by power, pretty near the same thing as we understand by right; and custom seems to authorise this confusion; for we equally use, for instance, paternal power, and paternal right, &c. Be this as it will, we are not to dispute about words. The main point is to distinguish here between physical and moral; and it seems that the word right, as Puffendorf himself insinuates,† is fitter of itself than power, to express the moral idea. In short, the use of our faculties becomes a right, only so far as it is approved by reason, and is found agreeable to this primitive rule of human actions. And whatever a man can<70> reasonably perform, becomes in regard to him a right, because reason is the only means that can conduct him in a short and sure manner to the end he proposes. There is nothing therefore arbitrary in these ideas; they are borrowed from the very nature of things, and if we compare them to the foregoing principles, we shall find they flow from thence as necessary consequences.
General foundation of the rights of man.IV. If any one should afterwards inquire, on what foundation it is that reason approves a particular exercise of our strength and liberty, in preference to another; the answer is obvious. The difference of those judgments arises from the very nature of things and their effects. Every exercise of our faculties, that tends of itself to the perfection and happiness of man, meets with the approbation of reason, which condemns whatever leads to a contrary end.
Right produces obligation.V. Obligation answers to right, taken in the manner above explained, and considered in its effects with regard to another person.
What we have already said, in the preceding chapter, concerning obligation, is sufficient to convey a general notion of the nature of this moral quality. But in order to form a just idea of that which comes under our present examination, we are to observe, that when reason allows a man to make a particular use of his strength and liberty, or, which is the same thing, when it acknowledges he has a particular right; it is requisite, by a very natural consequence, that in order to ensure this right to man, he1 should acknowledge at the same time, that other people ought<71> not to employ their strength and liberty in resisting him in this point; but on the contrary, that they should respect his right, and assist him in the exercise of it, rather than do him any prejudice. From thence the idea of obligation naturally arises; which is nothing more2 than a restriction of natural liberty produced by reason; inasmuch as reason does not permit an opposition to be made to those who use their right, but on the contrary it obliges every body to favour and abet such as do nothing but what it authorises, rather than oppose or traverse them in the execution of their lawful designs.
Right and obligation are two relative terms.VI. Right therefore and obligation are, as the logicians express it, two correllative terms: one of these ideas necessarily supposes the other; and we cannot conceive a right without a corresponding obligation. How, for example, could we attribute to a father the right of forming his children to wisdom and virtue by a perfect education, without acknowledging at the same time that children ought to submit to paternal direction, and that they are not only obliged not to make any resistance in this respect, but moreover they ought to concur, by their docility and obedience, to the execution of their parents views? Were it otherwise, reason would be no longer the rule of human actions: it would contradict itself, and all the rights it grants to man would become useless and of no effect; which is taking from him with one hand what it gives him with the other.
At what time man is susceptible of right and obligation.VII. Such is the nature of right taken for a faculty, and of the obligation thereto corresponding.<72> It may be generally affirmed, that man is susceptible of these two qualities, as soon as he begins to enjoy life and sense. Yet we must make some difference here, between right and obligation, in respect to the time in which these qualities begin to unfold themselves in man.3 The obligations a person contracts as man, do not actually display their virtue till he is arrived to the age of reason and discretion. For, in order to discharge an obligation, we must be first acquainted with it, we must know what we do, and be able to square our actions by a certain rule. But as for those rights that are capable of procuring the advantage of a person without his knowing any thing of the matter, they date their origin, and are in full force from the very first moment of his existence, and lay the rest of mankind under an obligation of respecting them. For example, the right which requires that no body should injure or offend us, belongs as well to children, and even to infants that are still in their mothers wombs, as to adult persons. This is the foundation of that equitable rule of the Roman law, which declares, *That infants who are as yet in their mothers wombs, are considered as already brought into the world, whenever the question relates to any thing that may turn to their advantage. But we cannot with any exactness affirm, that an infant, whether already come or coming into the world, is actu-<73>ally subject to any obligation with respect to other men. This state does not properly commence with respect to man, till he has attained the age of knowledge and discretion.
Several sorts of rights and obligations.VIII. Various are the distinctions of rights and obligations; but it will be sufficient for us to point out those only, that are most worthy of notice.†
In the first place, rights are natural, or acquired. The former are such as appertain originally and essentially to man, such as are inherent in his nature, and which he enjoys as man, independent of any particular act on his side. Acquired rights, on the contrary, are those which he does not naturally enjoy, but are owing to his own procurement. Thus the right of providing for our preservation, is a right natural to man; but sovereignty, or the right of commanding a society of men, is a right acquired.
Secondly, rights are perfect, or imperfect. Perfect rights are those which may be asserted in rigour, even by employing force to obtain the execution, or to secure the exercise thereof in opposition to all those who should attempt to resist or disturb us. Thus reason would impower us to use force against any one that would make an unjust attack upon our lives, our goods, or our liberty. But when reason does not allow us to use forcible methods, in order to secure the enjoyment of the rights it grants us, then these rights are called imperfect. Thus, notwithstanding<74> reason authorises those, who of themselves are destitute of means of living, to apply for succour to other men; yet they cannot, in case of refusal, insist upon it by force, or procure it by open violence. It is obvious, without our having any occasion to mention it here, that obligation answers exactly to right, and is more or less strong, perfect, or imperfect, according as right itself is perfect or imperfect.
Thirdly, another distinction worthy of our attention, is, that there are rights which may be lawfully renounced, and others that cannot.4 A creditor, for example, may forgive a sum due to him, if he pleases, either in the whole or part; but a father cannot renounce the right he has over his children, nor leave them in an intire independence. The reason of this difference is, that there are rights which of themselves have a natural connexion with our duties, and are given to man only as means to perform them. To renounce this sort of rights, would be therefore renouncing our duty, which is never allowed. But with respect to rights that no way concern our duties, the renunciation of them is licit, and only a matter of prudence. Let us illustrate this with another example. Man cannot absolutely, and without any manner of reserve, renounce his liberty; for this would be manifestly throwing himself into a necessity of doing wrong, were he so commanded by the person to whom he has made this subjection. But it is lawful for us to renounce a part of our liberty, if we find ourselves better enabled thereby to discharge our duties, and to acquire some certain and reasonable advantage. It is with these modifications<75> we must understand the common maxim, That it is allowable for every one to renounce his right.
Fourthly; Right, in fine, considered in respect to its different objects, may be reduced to four principal species. 1. The right we have over our own persons and actions, which is called Liberty. 2. The right we have over things or goods that belong to us, which is called Property. 3. The right we have over the persons and actions of other men, which is distinguished by the name of Empire or Authority. 4. And, in fine, the right one may have over other men’s things, of which there are several sorts. It suffices, at present, to have given a general notion of these different species of right. Their nature and effects will be explained, when we come to a particular inquiry into these matters.
Such are the ideas we ought to have of right, considered as a faculty. But there is likewise another particular signification of this word, by which it is taken for law; as when we say, that natural right is the foundation of morality and politics;5 that it forbids us to break our word; that it commands the reparation of damage, &c. In all these cases, right is taken for law. And as this kind of right agrees in a particular manner with man, it is therefore a matter of importance to clear and explain it well, which we shall endeavour to perform in the following chapters.<76>
Of Law in general.
I. In the researches hitherto made concerning the rule of human actions, we have consulted only the nature of man, his essence, and what belongs to his internal part. This inquiry has shewn us, that man finds within himself, and in his own Reason, the rule he ought to follow; and since the counsels which reason gives him, point out the shortest and safest road to his perfection and happiness, from thence arises a principle of obligation, or a cogent motive to square his actions by this primitive rule. But in order to have an exact knowledge of the human system, we must not stop at these first considerations; we should likewise, pursuant to the method already pointed out in this work,* transfer our attention to the different states of man, and to the relations from thence arising, which must absolutely produce some particular modifications in the rules he is to follow. For, as we have already observed, these rules ought not only to be conformable to the nature of man, but they should be proportionable moreover to his state and situation.
As man by nature is a dependent being, the law ought to be the rule of his actions.II. Now among the primitive states of man, dependance is one of those which merits the most attention, and ought to have the greatest influence on<77> the rule he is to observe. In fact, a being independent of every body else, has no other rule to pursue but the counsels of his own reason; and in consequence of this independance he is freed from all subjection to another’s will; in short, he is absolute master of himself and his actions. But the case is not the same with a being who is supposed to be dependent on another, as on his superior and master. The sense of this dependance ought naturally to engage the inferior to take the will of him on whom he depends for the rule of his conduct; since the subjection in which he finds himself, does not permit him to entertain the least reasonable hopes of acquiring any solid happiness, independent of the will of his superior, and of the views he may propose in relation to him.† Besides, this has more or less extent and effect, in proportion as the superiority of the one, and the dependance of the other, is greater or less, absolute or limited. It is obvious that all these remarks are in a particular manner applicable to man; so that as soon as he acknowledges a superior, to whose power and authority he is naturally subject; in consequence of this state, he must acknowledge likewise the will of this superior to be the rule of his actions. This is the Right we call Law.
It is to be understood however, that this will of the superior has nothing in it contrary to reason, the primitive rule of man. For were this the case, it would be impossible for us to obey him. In order to render a law the rule of human actions, it should be absolutely agreeable to the nature and constitution<78> of man, and be ultimately designed for his happiness, which reason makes him necessarily pursue. These remarks, though clear enough of themselves, will receive a greater light, when we have more particularly explained the nature of law.
Definition of law.III. Law I define, a rule prescribed by the sovereign of a society to his subjects, either in order to lay an obligation upon them of doing or omitting certain things, under the commination of punishment; or to leave them at liberty to act or not in other things just as they think proper, and to secure to them, in this respect, the full enjoyment of their rights.1
By thus defining law, we deviate a little from the definitions given by Grotius and Puffendorf. But the definitions of these authors are, methinks, somewhat too vague, and besides do not seem to agree with law considered in its full extent. This opinion of mine will be justified by the particular explication I am going to enter upon, provided it be compared with the passages here referred to.*
Why law is defined a rule prescribed.IV. I say that law is a rule, to signify, in the first place, what law has in common with counsel; which is, that they are both rules of conduct; and secondly, to distinguish law from the transient orders which may be given by a superior, and not being permanent rules of the subject’s conduct, are not properly laws. The idea of rule includes prin-<79>cipally these two things, universality and perpetuity; and both these characters being essential to rule, generally considered, help to discriminate law from any other particular will of the sovereign.
I add, that law is a rule prescribed; because a simple resolution confined within the sovereign’s mind, without manifesting itself by some external sign, can never be a law. It is requisite that this will be notified in a proper manner to the subjects; so that they be acquainted with what the sovereign requires of them, and with the necessity of squaring thereby their conduct. But in what manner this notification is to be made, whether viva voce, by writing, or otherwise, is a matter of mere indifference. Sufficient it is, that the subjects be properly instructed concerning the will of the legislator.
What is understood by a sovereign, sovereignty, and the right of commanding.V. Let us finish the explication of the principal ideas that enter into the definition of law. Law is prescribed by the sovereign; this is what distinguishes it from counsel, which comes from a friend or equal; who, as such, has no power over us, and whose advices, consequently, neither have the same force, nor produce the same obligation as law, which coming from a sovereign, has for its support the command and authority of a superior.* Counsels are followed for reasons drawn from the nature of the thing; laws are obeyed, not only on account of the reasons on which they are established, but likewise because of the authority of the sovereign<80> that prescribes them. The obligation arising from counsel is merely internal; that of law is both internal and external.†
Society, as we have already observed, is the union of several persons for a particular end, from whence some common advantage arises. The end, is the effect or advantage which intelligent beings propose to themselves, and are willing to procure. The union of several persons, is the concurrence of their will to procure the end they aim at in common. But though we make the idea of society enter into the definition of law, it must not be inferred from thence, that society is a condition absolutely essential and necessary to the enacting of laws. Considering the thing exactly, we may very well form a conception of law, when the sovereign has only a single person subject to his authority; and it is only in order to enter into the actual state of things, that we suppose a sovereign commanding a society of men. We must nevertheless observe, that the relation there is between the sovereign and the subjects, forms a society between them, but of a particular kind, which we may call society of inequality, where the sovereign commands, and the subjects obey.
The sovereign is therefore he who has a right to command in the last resort. To command, is directing the actions of those who are subject to us, according to our own will, and with authority or the power of constraint. I say that the sovereign commands in the last resort, to shew that as he has the first rank in society, his will is superior to any other, and holds all the members of the society in subjec-<81>tion. In fine, the right of commanding is nothing more than the power of directing the actions of others with authority. And as the power of exercising one’s force and liberty is no farther a right, than as it is approved and authorized by reason, it is on this approbation of reason, as the last resort, that the right of commanding is established.
VI. This leads us to inquire more particularly into the natural foundation of empire or sovereignty; or, which amounts to the same thing, what is it that confers or constitutes a right of laying an obligation on another person, and of requiring his submission and obedience. This is a very important question in itself; important also in its effects. For the more we are convinced of the reasons, which establish on the one hand authority, and dependance on the other, the more we are inclined to make a real and voluntary submission to those on whom we depend. Besides, the diversity of sentiments, in relation to the manner of laying the foundation of sovereignty, is a sufficient proof that this subject requires to be treated with care and attention.2
Of the foundation of sovereignty, or the right of commanding.
First remark. The question is, in regard to a necessary sovereignty.I. Inquiring here into the foundation of the right of command, we consider the thing only in a general and metaphysical manner. The<82> question is to know the foundation of a necessary sovereignty and dependance; that is, such as is founded on the very nature of things, and is a natural consequence of the constitution of those beings to whom it is attributed. Let us therefore wave whatever relates to a particular species of sovereignty, in order to ascend to the general ideas from whence the first principles are derived. But as general principles, when just and well founded, are easily applied to particular cases; it follows therefore, that the first foundation of sovereignty, or the reasons on which it is established, ought to be laid in such a manner, as to be easily applicable to the several species that fall within our knowledge. By this means, as we observed before, we can be fully satisfied with regard to the justness of the principles, or distinguish whether they are defective.
Second remark. There is neither sovereignty nor necessary dependance between beings perfectly equal.II. Another general and preliminary remark is, that there can be neither sovereignty nor natural and necessary dependance between beings, which by their nature, faculties, and state, have so perfect an equality, that nothing can be attributed to one which is not alike applicable to the other. In fact, in such a supposition, there could be no reason, why one should arrogate an authority over the rest, and subject them to a state of dependance, of which the latter could not equally avail themselves against the former. But as this reduces the thing to an absurdity, it follows, that such an equality between several beings excludes all subordination, all empire and necessary dependance of one on the other; just as the equality of two weights keeps these in a perfect equilibrium. There must<83> be therefore in the very nature of those beings, who are supposed to be subordinate one to the other, an essential difference of qualities, on which the relation of superior and inferior may be founded. But the sentiments of writers are divided in the determination of those qualities.
Different opinions on the origin and foundation of sovereignty.III. 1. Some pretend that the sole superiority of strength, or, as they express it, an irresistible power, is the true and first foundation of the right of imposing an obligation, and prescribing laws. “This superiority of power gives, according to them, a right of reigning, by the impossibility in which it places others, of resisting him who has so great an advantage over them.”*
2. Others there are, who derive the origin and foundation of sovereignty, from the eminency or superior excellence of nature; “which not only renders a being independent of all those who are of an inferior nature; but moreover causes the latter to be regarded as made for the former. And of this, say they, we have a proof in the very constitution of man, where the soul governs, as being the noblest part; and it is likewise on this foundation, that the empire of man over brutes is grounded.”†
3. A third opinion, which deserves also our notice, is that of Barbeyrac.‡ According to this ju-<84>dicious author, “there is, properly speaking, only one general foundation of obligation, to which all others may be reduced, and that is, our natural dependance on God, inasmuch as he has given us being, and has consequently a right to require we should apply our faculties to the use for which he has manifestly designed them. An artist,” he continues, “as such, is master of his own work, and can dispose of it as he pleases. Were a sculptor capable of making animated statues, this alone would intitle him to insist, that the marble shaped by his own hands, and endowed by him with understanding, shall be subject to his will.———But God is the author of the matter and form of the parts of which our being is composed, and he has given them all the faculties, with which they are invested. To these faculties, therefore, he has a right to prescribe what limits he pleases, and to require that men should use them in such or such a manner, &c.”
Examen of those opinions. 1. The sole superiority of power is insufficient to found a right of commanding.IV. Such are the principal systems on the origin and foundation of sovereignty and dependance. Let us examine them thoroughly, and in order to pass a right judgment, let us take care not to forget the distinction of physical and moral necessity, nor the primitive notions of right and obligation, such as have been above explained.*
1. This being premised, I affirm, that those who found the right of prescribing laws on the sole superiority of strength, or on an irresistible power, establish an insufficient principle, and which, rigorously<85> considered, is absolutely false. In fact, it does not follow, that because I am incapable to resist a person, he has therefore a right to command me, that is, that I am bound to submit to him by virtue of a principle of obligation, and to acknowledge his will as the universal rule of my conduct. Right being nothing else but that which reason approves, it is this approbation only which reason gives to him who commands, that is capable of founding his right, and, by a necessary consequence, produces that inward sense,1 which we distinguish by the name of Obligation, and inclines us to a spontaneous submission. Every obligation therefore supposes some particular reasons that influence the conscience and bend the will, insomuch that, pursuant to the light of our own reason, we should think it criminal to resist, were it even in our power, and should conclude that we have therefore no right to do it. Now a person that alledges no other reason, but a superiority of force, does not propose a motive sufficient to oblige the will. For instance, the power which may chance to reside in a malignant being, neither invests him with any right to command, nor imposes any obligation on us to obey; because this is evidently repugnant even to the very idea of right and obligation. On the contrary, the first counsel which reason gives us in regard to a malignant power, is to resist, and, if possible, to destroy him.2 Now, if we have a right to resist, this right is inconsistent with the obligation of obeying, which is evidently thereby excluded. True it is, that if we clearly see that all our efforts will be useless, and that our resistance must only subject us to a greater evil; we should chuse to sub-<86>mit, though with reluctance for a while, rather than expose ourselves to the attacks and violence of a malignant power. But in this case we should be constrained, though not under an obligation. We endure, in spite of us, the effects of a superior force, and whilst we make an external submission, we inwardly feel our nature rise and protest against it. This leaves us always a full right to attempt all sorts of ways to shake off the unjust and oppressive yoke. There is therefore properly speaking, no obligation in that case; now the default of obligation implies the default of right.* We have omitted making mention here of the dangerous consequences of this system, it is sufficient at present to have refuted it by principles; and perhaps we shall have occasion to take notice of these consequences another time.
2. Nor the sole excellence or superiority of nature.V. The other two opinions have something in them that is plausible and even true; yet they do not seem to me to be intirely sufficient. The principles they establish are too vague, and have need to be reduced to a more determinate point.
2. And, indeed, I do not see, that the sole excellency of nature is sufficient to found a right of sovereignty.3 I will acknowledge, if you please, this excellency, and agree to it as a truth that I am well convinced of: This is the whole effect that must naturally arise from this hypothesis. But here I make a halt; and the knowledge I have of the excellency of a superior being does not alone afford me a motive sufficient to subject myself to him, and to induce me to abandon my own will, in order to<87> take his for my rule. So long as I am confined to these general heads, and am informed of nothing more, I do not feel myself inclined by an internal motion to submit; and without any reproach of conscience, I may sincerely judge, that the intelligent principle within me, is sufficient to direct my conduct. So far we confine ourselves to mere speculation. But if you should attempt to require any thing more of me, the question would then be reduced to this point: How and in what manner does this being, whom you suppose to surpass me in excellence, intend to conduct himself with regard to me; and by what effects will this superiority or excellence be displayed? Is he willing to do me good or harm, or is he, in respect to me, in a state of indifference? To these interrogations there must be absolutely some answer given; and according to the side that is chosen, I shall agree perhaps, that this being has a right to command me, and that I am under an obligation of obeying. But these reflections are, if I am not mistaken, a demonstrative proof, that it is not sufficient to alledge merely and simply the excellence of a superior being, in order to establish the foundation of sovereignty.
3. Nor the sole quality of Creator.VI. Perhaps there is something more exact in the third hypothesis. “God,” say they, “is the Creator of man; it is from him he has received and holds his life, his reason, and all his faculties, he is therefore master of his work, and can of course prescribe what rules he pleases. Hence our dependance, hence the absolute empire of God over us naturally arises; and this is the very origin or first foundation of all authority.”<88>
The sum of what is here alledged to found the empire of God over man, is reduced to his supreme power. But does it follow from thence only, and by an immediate and necessary consequence, that he has a right to prescribe laws to us? That is the question. The sovereign power of God enables him to dispose of man as he has a mind, to require of him whatever he pleases, and to lay him under an absolute necessity of complying: For the creature cannot resist the Creator, and by its nature and state it finds itself in so absolute a dependance, that the Creator may, if so is his pleasure, even annihilate and destroy it. This we own, is certain; and yet it does not seem sufficient to establish the right of the Creator. There is something more than this requisite to form a moral quality of a simple power, and to convert it into right.* In a word, it is necessary, as we have more than once observed, that the power be such as ought to be approved by reason; to the end that man may submit to it willingly, and by that inward sense which produces obligation.
Here I beg leave to make a supposition that will set the thing in a much clearer light. Had the Creator given existence to the creature only to render it unhappy, the relation of Creator and creature would still subsist, and yet we could not possibly conceive, in this supposition, either right or obligation. The irresistible power of the Creator might indeed constrain the creature; but this constraint would never form a reasonable obligation, a moral tie; because an obligation of this nature always supposes the concurrence of the will, and an approbation or an acquiescence on the part<89> of man, from whence a voluntary submission arises. Now this aquiescence could never be given to a being, that would exert his supreme power only to oppress his creature, and render it unhappy.
The quality therefore of Creator is not alone and of itself sufficient to establish the right of command, and the obligation of obeying.
True foundation of sovereignty: Power, wisdom, and goodness joined together.VII. But if to the idea of Creator we join (which Barbeyrac probably supposed, though he has not distinctly expressed it) the idea of a being perfectly wise and sovereignly good, who has no desire of exercising his power but for the good and advantage of his creatures; then we have every thing necessary to found a legitimate authority.
Let us only consult ourselves, and suppose, that we not only derive our existence, life, and all our faculties, from a being infinitely superior to us in power; but moreover, that we are perfectly convinced that this being, no less wise than powerful, had no other aim in creating us, but to render us happy, and that with this view he is willing to subject us to laws: certain it is, that under these circumstances, we could not avoid approving of such a power, and the exercise thereof in respect to us. Now this approbation is acknowledging the right of the superior; and consequently the first counsel that reason gives us, is to resign ourselves to the direction of such a master, to subject ourselves to him, and to conform all our actions to what we know in relation to his will. And why so? because it is evident to us, from the very nature of things, that this is the surest and shortest way to arrive at hap-<90>piness, the end to which all mankind aspire. And from the manner we are formed, this knowledge will be necessarily attended with the concurrence of our will, with our acquiescence, and submission; insomuch that if we should act contrary to those principles, and any misfortune should afterwards befall us, we could not avoid condemning ourselves, and acknowledging, that we have justly drawn upon ourselves the evil we suffer. Now this is what constitutes the true character of obligation, properly so called.
Explication of our opinion.VIII. If we have therefore a mind to embrace and take in the whole, in order to form a complete definition, we must say, that the right of sovereignty arises from a superiority of power, accompanied with wisdom and goodness.
I say, in the first place, a superiority of power, because an equality of power, as we have observed in the very beginning, excludes all empire, all natural and necessary subordination; and besides, sovereignty and command would become useless and of no manner of effect, were they not supported by a sufficient power. What would it avail a person to be a sovereign, unless he were possessed of effectual methods to enforce his orders and make himself obeyed?
But this is not yet sufficient; wherefore I say, in the second place, that this power ought to be wise and benevolent: wise, to know and to chuse the properest means to make us happy; and benevolent, to be generally inclinable to use those means that tend to promote our felicity.<91>
In order to be convinced of this, it will be sufficient to remark three cases, which are the only ones that can be here supposed. Either he is, with respect to us, an indifferent power, that is, a power willing to do us neither good nor harm, as no ways interesting himself in what concerns us; or he is a malignant power; or, in fine, he is a propitious and benevolent power.
In the first case, our question cannot take place. How superior soever a being is in regard to me, so long as he does not concern himself about me, but leaves me intirely to myself; I remain in as complete a liberty, in respect to him, as if he were not known to me, or as if he did not at all exist.* Wherefore there is no authority on his side, nor obligation on mine.
But if we suppose a malignant power; reason, far from approving, revolts against him, as against an enemy, so much the more dangerous, as he is invested with greater power. Man cannot acknowledge such a power has a right; on the contrary, he finds himself authorized to leave no measure untried to get rid of so formidable a master, in order to be sheltered from the evils with which he might otherwise be unjustly afflicted.<92>
But let us suppose a being equally wise and beneficent. Man, instead of being able to refuse him his approbation, will feel himself inwardly and naturally inclined to submit and acquiesce intirely in the will of such a being, who is possessed of all the qualities necessary to conduct him to his ultimate end. By his power, he is perfectly able to procure the good of those who are subject to him, and to remove whatever may possibly injure them. By his wisdom, he is thoroughly acquainted with the nature and constitution of those on whom he imposes laws, and knows their faculties and strength, and in what their real interests consist. He cannot therefore be mistaken, either in the designs he proposes for their benefit, or in the means he employs in order to attain them. In fine, goodness inclines such a sovereign to be really willing to render his subjects happy, and constantly to direct to this end the operations of his wisdom and power. Thus the assemblage of these qualities, by uniting in the very highest degree all that is capable of deserving the approbation of reason, comprizes whatsoever can determine man, and lay him under an internal as well as external obligation of submission and obedience. Here therefore lies the true foundation of the right of sovereignty.
We must not separate the qualities which form the right of sovereignty.IX. In order to bind and subject free and rational creatures, there is no necessity, properly speaking, for more than an empire or authority, whose wisdom and lenity would forcibly engage the approbation of reason, independent of the motives excited by the apprehension of power. But as it easily happens,<93> from the manner that men are formed, that either through levity and neglect, or passion and malice, they are not so much struck as they ought, with the wisdom of the legislator, and with the excellency of his laws; it was therefore proper there should be an efficacious motive, such as the apprehension of punishment, in order to have a stronger influence over the will. For which reason it is necessary that the sovereign should be armed with power and force, to be better able to maintain his authority. Let us not separate therefore these different qualities, which form, by their concurrence, the right of the sovereign. As power alone, unaccompanied with benevolence, cannot constitute any right; so benevolence, destitute of power and wisdom, is likewise insufficient for this effect. For from this only, that a person wishes another well, it does not follow, that he is his master: neither are a few particular acts of benevolence sufficient for that purpose. A benefit requires no more than gratitude and acknowledgment; for in order to testify our gratitude, it is not necessary we should subject ourselves to the power of our benefactor. But let us join these ideas, and suppose, at one and the same time, a sovereign power, on which every one actually and really depends; a sovereign wisdom, that directs this power; and a supreme goodness, by which it is animated. What can we desire more, to establish, on the one side, the most eminent authority, and, on the other, the greatest subordination? We are compelled then, as it were, by our own reason, which will not so much as suffer us to deny, that such a superior is invested with<94> a true right to command, and that we are under a real obligation to obey.*
Definition of subjection. Foundation of dependance.X. The notions of sovereign and sovereignty being once settled, it is easy to fix those of subjection and dependance.4
Subjects therefore are persons, that are under an obligation of obeying. And as it is power, wisdom, and benevolence, that constitute sovereignty; we must suppose, on the contrary, in subjects the weakness and wants, from whence dependance arises.
It is therefore right in Puffendorf to remark,* that what renders man susceptible of an obligation produced by an external principle, is that he naturally depends on a superior, and that moreover as a free and intelligent being, he is capable of knowing the rules given him, and of chusing to conform his actions to them. But these are rather condi-<95>tions necessarily supposed, and of themselves understood, than the exact and immediate causes of subjection. More important it is to observe, that as the power of obliging a rational creature is founded on the ability and will of making him happy, if he obeys; unhappy, if he disobeys; this supposes that this creature is capable of good and evil, sensible of pleasure and pain, and besides that his state of happiness or misery may be either increased or diminished. Otherwise, he might be forced indeed, by a superior power, to act after a certain manner, but he could not be properly obliged.
The obligation produced by law, is the most perfect that can be imagined.XI. Such is the true foundation of sovereignty and dependance; a foundation that might be still better established, by applying these general principles to the particular species of known sovereignty or empire, such as that of God over man, that of a prince over his subjects, and the power of fathers over their children. We should be convinced thereby, that all these species of authority are originally founded on the principles above established; which would serve for a new proof of the truth of those principles.* But it is sufficient to have hinted here in general at this remark; the particulars we reserve for another place.
An authority established on such a foundation, and which comprizes whatever can be imagined most efficacious and capable to bind man, and to incline him to be steadily directed by certain rules of conduct, undoubtedly forms the completest and strongest obligation. For there is no obligation more perfect than<96> that which is produced by the strongest motives to determine the will, and the most capable, by their preponderancy, to prevail over all other contrary reasons.† Now every thing concurs here to this effect: the nature of the rules prescribed by the sovereign, which of themselves are the fittest to promote our perfection and felicity; the power and authority with which he is invested, whereby he is enabled to decide our happiness or misery; and, in fine, the intire confidence we have in him, because of his power, wisdom, and goodness. What can we imagine more to captivate the will, to gain the heart, to oblige man, and to produce within him the highest degree of moral necessity, which constitutes the most perfect obligation? I say, moral necessity; for we are not to destroy the nature of man; he remains always what he is, a free and intelligent being; and as such, the sovereign undertakes to direct him by his laws. Hence it is that even the strictest obligations never force the will; but, rigorously speaking, man is always at liberty to comply or not, though, as we commonly say, at his risk and peril. But if he consults reason, and is willing to follow its dictates, he will take particular care to avoid exercising this metaphysical power, in opposition to the views of his sovereign; an opposition that must terminate in his own misery and ruin.
Obligation is internal and external at the same time.XII. We have already observed, that there are two sorts of obligation;‡ the one internal, which is the work of reason only, and founded on the good or evil we perceive in the very nature of things:<97> the other external, which is produced by the will of him whom we acknowledge our superior and master. Now the obligation produced by law, unites these two sorts of ties, which by their concurrence strengthen each other, and thus form the completest obligation that can possibly be imagined. It is probably for this reason, that most civilians acknowledge no other obligation properly so called, but that which is the effect of law, and imposed by a superior. This is true, if we mean only an external obligation, which indeed is the strongest tie of man. But it must not be inferred from thence, that we ought to admit no other sort of obligation. The principles we established, when inquiring into the first origin and the nature of obligation generally considered, and the particular remarks we have just now made on the obligation arising from law, are sufficient, if I am not mistaken, to evince, that there is a primitive, original, and internal obligation, which is inseparable from reason, and ought necessarily to concur with the external obligation, in order to communicate to the latter all the necessary force for determining and bending the will, and for influencing effectually the human heart.
By distinguishing rightly these ideas, we shall find, perhaps, that this is one way of reconciling opinions, which seem to be wide from each other, only because they are misunderstood.* Sure it is at least, that the manner in which we have explained the foundation of sovereignty and dependance, coincides, in the main, with Puffendorf ’s system, as will easily<98> appear by comparing it with what this author says, whether in his large work, or in his abridgment.†
Of the end of laws; of their characters, differences, &c.
Of the end of laws, either in regard to the subjects, or in respect to the sovereign.I. Some perhaps will complain, that we have dwelt too long on the nature and foundation of sovereignty. But the importance of the subject required us to treat it with care, and to unravel properly its principles. Besides, we apprehend, that nothing could contribute better to a right knowledge of the nature of law; and we shall presently see, that whatever in fact remains for us still to say concerning this subject, is deduced from the principles just now established.
In the first place, it may be asked, what is the end and design of laws?
This question presents itself in two different lights; namely, with respect to the subject, and with regard to the sovereign: a distinction that must be carefully observed.
The relation of the sovereign to his subjects forms a kind of society between them, which the sovereign directs by the laws he establishes.* But as society<99> naturally requires there should be some provision made for the good of all those who are the constituent parts thereof, it is by this principle we must judge of the end of laws: and this end, considered with respect to the sovereign, ought to include nothing in it opposite to the end of these very laws considered with regard to the subject.
II. The end of the law in regard to the subject is, that he should conform his actions to it, and by this means acquire happiness. As for what concerns the sovereign, the end he aims at for himself, by giving laws to his subjects, is the satisfaction and glory arising from the execution of the wise designs he proposes, for the preservation1 of those who are subject to his authority. These two ends of the law should never be separated, one being naturally connected with the other; for it is the happiness of the subject that forms the satisfaction and glory of the sovereign.
The end of laws is not to lay a restraint upon liberty, but to direct it in a proper manner.III. We should therefore take care not to imagine that laws are properly made in order to bring men under a yoke. So idle an end would be quite unworthy of a sovereign, whose goodness ought to be equal to his power and wisdom, and who should always act up to these perfections. Let us say rather, that laws are made to oblige the subject to pursue his real interest, and to chuse the surest and best way to attain the end he is designed for, which is happiness.2 With this view the sovereign is willing to direct his people better than they could themselves, and gives a check to their liberty, lest they should<100> make a bad use of it contrary to their own and the public good. In short, the sovereign commands rational beings; it is on this footing he treats with them; all his ordinances have the stamp of reason; he is willing to reign over our hearts; and if at any time he employs force, it is in order to bring back to reason those who have unhappily strayed from it, contrary to their own good and that of society.
Examen of what Puffendorf says concerning this subject.IV. Wherefore Puffendorf, methinks, speaks somewhat loosely in the comparison he draws between law and counsel, where he says, “That counsel tends to the ends proposed by those to whom it is given, and that they themselves can judge of those ends, in order to approve or disapprove them.———Whereas law aims only at the end of the person that establishes it, and if sometimes it has views in regard to those for whom it is made, it is not their business to examine them—this depends intirely on the determination of the legislator.”* It would be a much juster way, methinks, of expressing the thing, to say, that laws have a double end, relative to the sovereign and the subject; that the intent of the sovereign in establishing them, is to consult his own satisfaction and glory, by rendering his subjects happy; that these two things are inseparable; and that it would be doing injustice to the sovereign to imagine he thinks only of himself, without any regard to the good of those who are his dependants. Puffendorf seems here, as well as in some other places, to give a little too much into Hobbes’s principles.<101>
Of the distinction of law into obligatory, and that of simple permission.V. We defined law, a rule which lays an obligation on subjects of doing or omitting certain things, and leaves them at liberty to act or not to act in other matters, according as they judge proper, &c. This is what we must explain here in a more particular manner.
A sovereign has undoubtedly a right to direct the actions of those who are subject to him, according to the ends he has in view. In consequence of this right, he imposes a necessity on them of acting or not acting after a particular manner in certain cases; and this obligation is the first effect of the law. From thence it follows, that all actions, not positively commanded or forbidden, are left within the sphere of our natural liberty; and that the sovereign is hereby supposed to grant every body a permission to act in this respect as they think proper; and this permission is a second effect of the law. We may therefore distinguish the law, taken in its full extent, into an obligatory law, and a law of simple permission.
The opinion of Grotius and Puffendorf upon this subject.[VI.] It is true, Grotius,* and after him Puffendorf, are of opinion, that permission is not properly, and of itself, an effect or consequence of the law, but a mere inaction of the legislator. †Whatever things, says Puffendorf, the law permits, those it neither commands nor forbids, and therefore it really doth nothing at all concerning them.<102>
But though this different manner of considering the thing be not perhaps of any great consequence, yet Barbeyrac’s opinion, such as he has explained it in his notes on the forecited passages, appears to be much more exact. A permission arising from the legislator’s silence cannot be considered as a simple inaction. The legislator does nothing but with deliberation and wisdom. If he is satisfied with imposing, only in some cases, an indispensable necessity of acting after a certain manner, and does not extend this necessity further, it is because he thinks it agreeable to the end he proposes, to leave his subjects at liberty in some cases to do as they please. Wherefore, the silence of the legislator imports a positive though tacit permission of whatsoever he has not forbidden or commanded, though he might have done it, and would certainly have done it, had he thought proper. Insomuch that as the forbidden or commanded actions are positively regulated by the law, actions permitted are likewise positively determined by the same law, though after their manner and according to the nature of the thing. In fine, whoever determines certain limits, which he declares we ought not to exceed, does hereby point out how far he permits and consents we should go. Permission therefore is as positive an effect of the law as obligation.
The rights which men enjoy in society, as founded on this permission.VII. This will appear still more evident, if we consider, that having once supposed that we all depend on a superior, whose will ought to be the universal rule of our conduct, the rights attributed to man in this state, by virtue of which he may act safely and with impunity, are founded on the express<103> or tacit permission received from the sovereign or the law. Besides, every body agrees that the permission granted by the law, and the right from thence resulting, lay other men under an obligation not to resist the person that uses his right, but rather to assist him in this respect, than do him any prejudice. Obligation, therefore, and permission are naturally connected with each other; and this is the effect of the law, which likewise authorizes those, who are disturbed in the exercise of their rights, to employ force, or to have recourse to the sovereign, in order to remove these impediments. Hence it is, that after having mentioned in the definition of law, that it leaves us in certain cases at liberty to act or not to act, we added, that it secures the subjects in the full enjoyment of their rights.*
The matter of laws.VIII. The nature and end of laws shew us their matter or object. The matter of laws in general are all human actions, internal and external; thoughts, and words, as well as deeds; those which relate to another, and those which terminate in the person itself; so far, at least, as the direction of those actions may essentially contribute to the particular good of each person, to that of society in general, and to the glory of the sovereign.
Internal conditions of a law; that it be possible, useful, and just.IX. This supposes naturally the three following conditions. 1. That the things ordained by the law be possible to fulfil; for it would be folly, and even cruelty, to require of any person, under the least commination of punishment, whatever is and always has<104> been above his strength. 2. The law must be of some utility; for reason will never allow any restraint to be laid on the liberty of the subject, merely for the sake of the restraint, and without any benefit or advantage arising to him. 3. In fine, the law must be in itself just; that is, conformable to the order and nature of things, as well as to the constitution of man: this is what the very idea of rule requires, which, as we have already observed, is the same as that of law.3
External conditions of law; that it may be made known; and accompanied with a sanction.X. To these three conditions, which we may call the internal characteristics of law, namely, that it be possible, just, and useful, we may add two other conditions, which in some measure are external; one, that the law be made sufficiently known; the other, that it be attended with a proper sanction.
1. It is necessary that the laws be sufficiently notified to the subject;* for how could he regulate his actions and motions by those laws, if he had never any knowledge of them? The sovereign ought therefore to publish his laws in a solemn, clear, and distinct manner. But, after that, it is the subject’s business to be acquainted with the will of the sovereign; and the ignorance or error he may lie under in this respect, cannot, generally speaking, be a legitimate excuse in his favour. This is what the civilians mean, when they lay down as a maxim, †That ignorance or error in regard to the law is blameable and hurtful. Were it not so, the laws would<105> be of no effect, but might always, under a pretext of ignorance, be eluded with impunity.4
XI. 2. The next thing requisite is, that the law be attended with a proper sanction.
Sanction is that part of the law, which includes the penalty enacted against those who transgress it. With regard to the penalty, it is an evil with which the sovereign menaces those subjects who should presume to violate his laws, and which he actually inflicts, whenever they violate them: and this with a design of procuring some good; such as to correct the culpable, and to admonish the rest; but ultimately, that his laws being respected and observed, society should enjoy a state of security, quiet, and happiness.
All laws have therefore two essential parts: the first is the disposition of the law, which expresseth the command or prohibition; the second is the sanction, which pronounces the penalty; and it is the sanction that gives it the proper and particular force of law. For were the sovereign contented with merely ordaining or forbidding certain things, without adding any kind of menace; this would be no longer a law prescribed by authority, but merely a prudent counsel.5
It is not however absolutely necessary that the nature or quality of the punishment be formally specified in the law; it is sufficient that the sovereign declares he will punish, reserving to himself the species and degree of chastisement according to his prudence.* <106>
We must also observe, that the evil, which constitutes the punishment properly so called, ought not to be a natural production, or a necessary consequence of the action intended to be punished. It should be, as it were, an occasional evil, and inflicted by the will of the sovereign. For whatever the action may have bad of itself and dangerous in its effects and inevitable consequences, cannot be reckoned as proceeding from the law, since it would equally happen without it. The menaces therefore of the sovereign must, in order to have some weight, be inflictive of such punishments as differ from the evil that necessarily arises from the nature of the thing.*
Whether the promise of recompence is equally capable, as the commination of punishment, to constitute the sanction of law.XII. It may be asked, in fine, whether the sanction of laws may not as well consist in the promise of a recompence, as in the commination of punishment? I answer, that this depends, in general, on the will of the sovereign, who may use either of these ways; or even employ them both, according as his prudence directs. But since the question is to know, which is the most effectual method the sovereign can use, in order to enforce the observance of his laws; and since it is certain that man is naturally more sensibly affected by evil than good,6 it seems more proper to establish the sanction of law<107> in the commination of punishment, than in the promise of recompence. People are seldom induced to violate the law, unless it be with the hope of procuring at least some apparent good. The best way therefore to prevent this deception, is to remove the bait that allures them, and to annex, on the contrary, a real and inevitable evil to disobedience. Suppose, for instance, two legislators, willing to establish the same law, proposed, one of them great rewards, and the other severe punishments, the latter would undoubtedly dispose men more effectually to compliance than the former. The most specious promises do not always determine the will; but the view of a rigorous punishment staggers and intimidates it.† But if the sovereign, by a particular effect of his bounty and wisdom, is willing to join these two means, and to enforce the law by a double motive of observance; there is then nothing wanting to complete its force, since in every respect it is a perfect sanction.
Who those are whom the law obliges. Of dispensation.XIII. The obligation which the laws impose,7 have as great an extent as the right of the sovereign; and consequently it may be said in general, that all those who are dependent on the legislator, are subject to this obligation. But each law in particular obliges those subjects only, to whom the subject matter may be applied; and this is easily known from the very nature of each law, by which the intention of the legislator is sufficiently expressed.<108>
Nevertheless it sometimes happens, that particular persons are exempted from the obligation of observing the law; and this is what we call dispensation, on which we have a few remarks to make.
1. If the legislator can intirely abrogate a law, by a much stronger reason he can suspend the effect thereof, with regard to any particular person.
2. But we must likewise acknowledge, that none but the legislator himself is invested with this power.
3. He never ought to use it without very good reasons, and then he should act with moderation, and according to the rules of equity and prudence. For were he, without discretion or choice, to favour too great a number of people with dispensations, he would enervate the authority of the law; or were he to refuse it in cases perfectly alike, so unreasonable a partiality would certainly be attended with jealousy and discontent.
Of the duration of laws, and how they are abolished.XIV. As for what concerns the duration of laws, and the manner in which they are abolished, we are to observe the following principles.8
1. In general the duration of a law, as well as its first establishment, depends on the free will and pleasure of the sovereign, who cannot reasonably tie up his own hands in this respect.
2. And yet every law, of itself and by its nature, is supposed perpetual, when it contains nothing in its disposition, or in the circumstances attending it, that evidently denotes a contrary intention of the legislator, or that may induce us reasonably to presume that it was only a temporary ordinance. The law is a rule; now every rule is<109> of itself perpetual; and, generally speaking, when the sovereign establishes a law, it is not with a design to repeal it.
3. But as the state of things may happen to alter in such a manner, that the law, grown useless or hurtful, can no longer be put in execution; the sovereign can, and ought, in that case, to repeal and abolish it. It would be absurd and pernicious to society, to pretend that laws once enacted ought to subsist for ever, let what inconveniency soever arise.
4. This repeal may be made in two different manners, either expresly or tacitly. For when the sovereign, well acquainted with the state of things, neglects for a long time to enforce the observance of the laws, or formally permits, that affairs relating thereto be regulated in a manner contrary to his disposition; from thence a strong presumption arises of the abrogation of this law, which falls thus of itself, though the legislator has not expresly abolished it.
It is plain we have only glanced here upon the general principles. As for the application that ought to be made of them to each species of laws, it requires some modification, pursuant to their different nature. But it is not our business to enter here into those particulars.
How many sorts of laws.XV. Law may be divided, 1. into divine or human, according as it has God or man for its author.9
2. Divine law may be subdivided into two sorts, namely, natural and positive or revealed.<110>
Natural law is that which so necessarily agrees with the nature and state of man, that without observing its maxims, the peace and happiness of society can never be preserved. As this law has an essential agreeableness with the constitution of human nature, the knowledge thereof may be attained merely by the light of reason; and hence it is called natural.
Positive or revealed law is that which is not founded on the general constitution of human nature, but only on the will of God; though in other respects this law is established on very good reasons, and procures the advantage of those who receive it.
We meet with examples of these two sorts of laws in the ordinances which God gave formerly to the Jews. It is easy to distinguish such as were natural, from those that, being merely ceremonial or political, had no other foundation than the particular will of God, accommodated to the actual state of that people.
With regard to human laws, considered strictly as such, viz. as originally proceeding from a sovereign who presides over society, they are all positive. For though some natural laws are made the subject of human laws, they do not derive their obligatory force from the human legislator; since they would oblige all the same without any intervention on his part, because they come from God.
Before we leave these definitions, we must not forget to observe, that the science or art of making and explaining laws, and of applying them to human actions, goes by the general name of Jurisprudence.<111>
Of the morality of human actions.*
In what the morality of actions consists.I. Law being the rule of human actions, in a comparative view, we observe that the latter are either conformable or opposite to the former; and this sort of qualification of our actions in respect to the law, is called morality.
The term of morality comes from mores or manners. Manners, as we have already observed, are the free actions of man, considered as susceptible of direction and rule. Thus we call morality the relation of human actions to the law, by which they are directed; and we give the name of moral philosophy1 to the collection of those rules by which we are to square our actions.
Actions are, 1. either commanded, or forbidden, or permitted.II. The morality of actions may be considered in two different lights: 1. in regard to the manner in which the law disposes of them; and 2. in relation to the conformity or opposition of those same actions to the law.
In the first consideration, human actions are either commanded, or forbidden, or permitted.
As we are indispensably obliged to do what is commanded, and to abstain from what is forbidden by a lawful superior, civilians consider commanded actions as necessary, and forbidden actions as im-<112> possible. Not that man is deprived of a physical power of acting contrary to law, and incapable, if he has a mind, of exercising this power. But since his acting after this manner would be opposite to right reason, and inconsistent with his actual state of dependance; it is to be presumed that a reasonable and virtuous man, continuing and acting as such, could not make so bad a use of his liberty; and this presumption is in itself too reasonable and honourable for humanity, not to meet with approbation. Whatever (say the Roman lawyers)*is injurious to piety, reputation, or modesty, and in general to good manners, ought to be presumed impossible.
Remarks on permitted actions.III. With regard to permitted actions, they are such as the law leaves us at liberty to do, if we think proper.† Upon which we must make two or three remarks.
1. We may distinguish two sorts of permission; one full and absolute, which not only gives us a right to do certain things with impunity, but moreover is attended with a positive approbation of the legislator: The other is an imperfect permission, or a kind of toleration, which implies no approbation but a simple impunity.
2. The permission of natural laws always denotes a positive approbation of the legislator; and whatever happens in consequence thereof, is innocently<113> done, and without any violation of our duty. For it is evident, that God could not positively permit the least thing that is bad in its nature.
3. It is otherwise in respect to the permission of human laws. We may, indeed, justly and with certainty infer, that a sovereign has not thought proper to forbid or punish some particular things; but it does not always from thence follow, that he really approves those things, and much less that they may be innocently done, and without any breach of duty.
2. Actions are good or just, bad or unjust, and indifferent.IV. The other manner in which we may view the morality of human actions, is with regard to their conformity or opposition to the law. In this respect, actions are divided into good or just, bad or unjust, and indifferent.
An action morally good or just, is that which in itself is exactly conformable to some obligatory law, and moreover is attended with the circumstances and conditions required by the legislator.
I said, 1. A good or just action; for there is properly no difference between the goodness and justice of actions; and there is no necessity to deviate here from the common language, which confounds these two ideas.2 The distinction which Puffendorf makes between these two qualities is quite arbitrary, and even he himself afterwards confounds them.* <114>
2. I said, an action morally good; because we do not consider here the intrinsic and natural goodness of actions, by virtue of which they redound to the physical good of man; but only the relation of agreeableness they have to the law, which constitutes their moral goodness. And though these two sorts of goodness are always found inseparably united in things ordained by natural law, yet we must not confound these two different relations.
Conditions requisite to render an action morally good.V. In fine, to distinguish the general conditions, whose concurrence is necessary in order to render an action morally good, with respect to the agent; I have added, that this action ought to be in itself exactly conformable to the law, and accompanied moreover with the circumstances and conditions required by the legislator. And firstly, it is necessary that this action should comply exactly, and through all its parts, with the tenor of what the law ordains. For as a right line is that whose points correspond to the rule without the least deviation; in like manner an action, rigorously speaking, cannot be just, good, or right, unless it agrees exactly, and in every respect with the law. But even this is not sufficient; the action must be performed also pursuant to the manner required and intended by the legislator. And in the first place, it is necessary it be done with a competent knowledge, that is, we must know that what we do is conformable to the law: otherwise the legislator would have no regard for the action, and our labour would be intirely lost. In the next place, we must act with an upright intention and for a good end, namely, to fulfill the views of the legislator, and to<115> pay a due obedience to the law: For if the agent’s intention be bad, the action, instead of being deemed good, may be imputed to him as vicious. In fine, we should act through a good motive, I mean a principle of respect for the sovereign, of submission to the law, and from a love of our duty; for plain it is, that all these conditions are required by the legislator.3
Of the nature of bad or unjust actions.VI. What has been above affirmed concerning good actions, sufficiently shews us the nature of those which are bad or unjust. These are, in general, such as of themselves, or by their concomitant circumstances, are contrary to the disposition of an obligatory law, or to the intention of the legislator.
There are, therefore, two general springs of injustice in human actions; one proceeds from the action considered in itself, and from its manifest opposition to what is commanded or prohibited by the law. Such as, for example, the murder of an innocent person. And all these kinds of actions intrinsically bad can never become good, whatever may be in other respects the intention or motive of the agent. We cannot employ a criminal action as a lawful means to attain an end in itself good; and thus we are to understand the common maxim, evil must not be done, that good may come of it. But an action intrinsically and as to its substance good, may become bad, if it be accompanied with circumstances directly contrary to the legislator’s intention; as for instance, if it be done with a bad view, and through a vicious motive. To be liberal and generous towards our fellow-citizens,<116> is a good and commendable thing in itself; but if this generosity is practised merely with ambitious views, in order to become insensibly master of the commonwealth, and to oppress the public liberty; the perversity of the motive, and the injustice of the design, render this action criminal.4
All just actions are equally just; but unjust actions are more or less unjust.VII. All just actions are, properly speaking, equally just; by reason that they have all an exact conformity to the law. It is not the same with unjust or bad actions; which, according as they are more or less opposite to the law, are more or less vicious; similar in this respect to curve lines, which are more or less so, in proportion as they deviate from the rule. We may therefore be several ways wanting in our duty. Sometimes people violate the law deliberately, and with malice prepense; which is undoubtedly the very highest degree of iniquity, because this kind of conduct manifestly indicates a formal and reflective contempt of the legislator and his orders; but sometimes we are apt to sin through neglect and inadvertency, which is rather a fault than a crime. Besides, it is plain that this neglect has its degrees, and may be greater or lesser, and deserving of more or less censure. And as in every thing unsusceptible of an exact and mathematical measure, we may always distinguish at least three degrees, namely, two extremes and a middle: Hence the civilians distinguish three degrees of fault or negligence; a gross fault, a slight one, and a very slight one. It is sufficient to have mentioned these principles, the explication and distinct account whereof will naturally take place,<117> when we come to the particular questions relating to them.
Essential character of unjust actions.VIII. But we must carefully observe, that what essentially constitutes the nature of an unjust action, is its direct opposition or contrariety to the disposition of the law, or to the intention of the legislator; which produces an intrinsic defect in the matter or form of that action. For though in order to render an action morally good, it is necessary, as we have already observed, that it be intirely conformable to the law, with respect as well to the substance, as to the manner and circumstances; yet we must not from thence conclude, that the defect of some of those conditions always renders an action positively bad or criminal. To produce this effect, there must be a direct opposition, or formal contrariety between the action and the law; a simple defect of conformity being insufficient for that purpose. This defect is, indeed, sufficient to render an action not positively good or just; however, it does not become therefore bad, but only indifferent. For example, if we perform an action good in itself, without knowing for what reason, or even that it is commanded by the law; or if we act through a different motive from that prescribed by the law, but in itself innocent and not vicious; the action is reputed neither good nor bad, but merely indifferent.
Of indifferent actions.IX. There is therefore such a thing as indifferent actions, which hold a middle rank, as it were, between just and unjust. These are such as are neither<118> commanded nor prohibited, but which the law leaves us at liberty to do or to omit, according as we think proper. That is, those actions are referred to a law of simple permission, and not to an obligatory law.
Now that such actions there are, is what no one can reasonably question. For what a number of things are there, which being neither commanded nor forbidden by any law, whether divine or human, have consequently nothing obligatory in their nature, but are left to our liberty, to do or to omit, just as we think proper? It is therefore an idle subtlety in schoolmen to pretend that an action cannot be indifferent, unless it be in an abstract consideration, as stript of all the particular circumstances of person, time, place, intention, and manner. An action divested of all these circumstances, is a mere Ens rationis; and if there be really any indifferent actions, as undoubtedly there are, they must be relative to particular circumstances of person, time, and place, &c.5
Division of good and bad actions.X. Good or bad actions may be ranged under different classes, according to the object to which they relate. Good actions referred to God, are comprised under the name of Piety. Those which relate to ourselves, are distinguished by the words, Wisdom, Temperance, Moderation. Those which concern other men, are included under the terms of Justice and Benevolence. We only anticipate here the mentioning of this distinction, because we must return to it again when we come to treat of natural law. The same distinction is applicable to bad ac-<119>tions, which belong either to Impiety, Intemperance, or Injustice.6
Of justice, and its different kinds.XI. It is common to propose several divisions of justice. That we may not be silent on this article, we shall observe,
1. That justice may, in general, be divided into perfect or rigorous, and imperfect or not rigorous. The former is that by which we perform towards our neighbour whatever is due to him in virtue of a perfect or rigorous right, that is, the execution of which he may demand by forcible means, unless we satisfy him freely and with a good will; and it is in this strict sense that the word Justice is generally understood. The second is that by which we perform towards another the duties owing to him only in virtue of an imperfect and non-rigorous obligation, which cannot be insisted upon by violent methods; but the fulfilling of them is left to each person’s honour and conscience.* These kinds of duties are generally comprehended under the appellations of humanity, charity, or benevolence, in opposition to rigorous justice, or justice properly so called. This division of justice coincides with that of Grotius, into expletive and attributive.7
2. We might subdivide rigorous justice into that which is exercised between equals, and that which takes place between superior and inferior.* The former contains as many different species as there are<120> duties, which one man may in rigour require of every other man, considered as such, and one citizen of every fellow-citizen. The latter includes as many species as there are different societies, where some command, and others obey.†
3. There are other divisions of justice, but such as seem useless, and far from being exact. For example, that of universal and particular justice, taken in the manner as Puffendorf explains it, appears incorrect, inasmuch as one of the members of the division is included in the other.‡ The subdivision of particular justice into distributive and commutative, is incomplete; because it includes only what is due to another, by virtue of some pact or engagement, notwithstanding there are many things which our neighbour may require of us in rigour, without any regard to pact or convention. And we may observe in general, by reading what Grotius and Puffendorf have wrote concerning this subject, that they are at a loss themselves, to give a clear and exact idea of these different kinds of justice. Hence it is manifest, that we had better wave all these scholastic divisions, contrived in imitation of those of Aristotle, and abide by our first division. And indeed, it is only out of respect to the common opinion, that we have taken any notice thereof.§ <121>
Of the relative estimations of moral actions.XII. Besides what we may call the quality of moral actions, they have likewise a kind of quantity, which, by comparing the good actions to one another, as also the bad in the same manner, leads us to a sort of relative estimation, in order to mark the greater or lesser degree of evil to be found in each.8 We shall give here the principles necessary for this estimation.
1. These actions may be considered with regard to their object. The nobler the object, the higher the excellence of the good action done towards this object; and a bad action, on the contrary, becomes more criminal.
2. In respect to the quality and state of the agent. Thus a favour or benefit received of an enemy, excels that which is conferred upon us by a friend. And, on the contrary, an injury done us by a friend, is more sensible, and more attrocious, than that which is committed by an enemy.
3. In reference to the very nature of the action, according as there is more or less trouble to perform. The more a good action is difficult, supposing every thing else equal, the more worthy it is of praise and admiration. But the easier it is to abstain from a bad action, the more it is blameable and enormous in comparison to another of the same species.
4. In relation to the effects and consequences of the action. An action is so much the better or worse, in proportion as we foresee that its consequences must be more or less advantageous or hurtful.<122>
5. We may add the circumstances of time, place, &c. which are also capable of making the good or bad actions surpass one another in excellence or badness. We have borrowed these remarks from one of Barbeyrac’s notes on Puffendorf.*
Morality is applicable to persons as well as actions.XIII. Let us observe, in fine, that morality is attributed to persons as well as actions; and as actions are good or bad, just or unjust, we say likewise of men, that they are good or bad, virtuous or vicious.
A virtuous man is he that has a habit of acting conformably to the laws and his duty. A vicious man is one that has the opposite habit.
Virtue therefore consists in a habit of acting according to the laws; and vice in the contrary habit.
I said that virtue and vice are habits. Hence to judge properly of these two characters, we should not stop at some particular action; we ought to consider the whole series of the life and ordinary conduct of man. We should not therefore rank among the number of vicious men, those who through weakness, or otherwise, have been sometimes induced to commit a bad action; as on the other hand, those who have done a few acts of virtue, do not merit the title of honest men. There is no such thing to be found in this world as virtue in every respect complete; and the weakness inseparable from man, requires we should not judge him<123> with full rigour. Since it is allowed that a virtuous man may, through weakness and surprize, commit some unjust action; so it is but right we should likewise allow, that a man who has contracted several vicious habits, may notwithstanding, in particular cases, do some good actions, acknowledged and performed as such. Let us not suppose men worse than they really are, but take care to distinguish the several degrees of iniquity and vice, as well as those of probity and virtue.
The End of the First Part.<124><125>
[1. ]“La seule raison,” that is, “reason unaided.”
[* ]The etymology given here by the Author was intended only for the French word Droit.
[2. ]This paragraph and the next are based on DNG I.1 §2 and DHC I.1 §§2–3, together with Barbeyrac’s notes.
[3. ]“Le sentiment intérieur,” that is, the “internal sentiment” or “internal sense,” in the original.
[* ]Rom. ii. 14, 15.
[4. ]This paragraph is based on DHC I.1 §4 together with Barbeyrac’s comments in footnote 2 to that paragraph.
[5. ]Burlamaqui’s discussion of how the will, through its dual functions of steering the attention and participating in the formation of assent, is a Cartesian legacy. Barbeyrac refers to the matter in, for example, DNG I.3 §2 note 1, where he indicates LeClerc and Malebranche as central sources.
[6. ]The discussion of error of the law and error of fact (including the examples) is borrowed from Barbeyrac, DHC I.1 §7 note 1.
[* ]See another example in St. Matthew, chap. xv. 4, 5.
[7. ]See Barbeyrac’s note 1 in DHC I.1 §7, and DHC I.1 §9 note 1.
[8. ]Barbeyrac recommends the essential/accidental distinction as preferable in DHC I.1 §8 note 2; see also DNG I.3 §10 note 2.
[1. ]The original’s “se rapportent” could also be translated “are related to.”
[2. ]The translation omits a significant “all,” by which Burlamaqui stresses that no single deliberation is free from this essential orientation toward happiness. The classical work on the significance of happiness as a key term in the systems of moral and social philosophy in French-language eighteenth-century literature is Robert Mauzi’s L’idée du bonheur dans la littérature et la pensée françaises au XVIIIe siècle (Paris: Armand Colin, 1960; Genève: Slatkine Reprints, 1979).
[3. ]Burlamaqui’s explanation, in this and the following paragraphs, of how liberty “displays itself ” in our judgments concerning true and false, follows closely the Cartesian doctrine as presented in the fourth part of the Mediatationes de prima philosophia. Burlamaqui’s Cartesian discussion goes further in this respect than those of Pufendorf and Barbeyrac; see DNG I.3 §§1–2, especially §2 note 1; see also DHC I.1 §9, especially note 1.
[4. ]The Romans suffered a humiliating defeat against the Samnites in the Caudine Forks in 321 b.c. The Roman Senate extricated itself from the peace treaty signed by its consuls by regarding it as expressing the commitment not of Rome but of those individual senators.
[5. ]The translator’s “internal experience” stands for the less technical and more open-ended “ce que nous éprouvons au-dédans de nous-mêmes,” that is, “what we feel within ourselves.”
[6. ]The original is more mathematical: “délibérer et calculer.”
[7. ]This is a reference to the Cartesian “cogito” argument: I know that I exist because when I think this thought, “I exist,” I can feel my existence in this act of the internal sense.
[8. ]Burlamaqui sometimes uses the expression “internal sense” (“sentiment intérieur”), but not as systematically as the translator; the original in this instance reads “le sentiment que nous avons de l’un et de l’autre,” that is, “the sentiment we have of the one [understanding and will] and of the other [liberty].” Nevertheless, later chapters will confirm an influence from Francis Hutcheson, whose language Burlamaqui’s discussion of internal sentiment often reflects.
[* ]There is a wide difference between seeing that a thing is absurd, and not knowing all that regards it; between an unanswerable question in relation to a truth, and an unanswerable objection against it; though a great many confound these two sorts of difficulties. Those only of the latter order are able to prove, that what was taken for a known truth cannot be true, because otherwise some absurdity must ensue. But the others prove nothing but the ignorance we are under in relation to several things that regard a known truth. Biblioth. Raison. Tom. 7. p. 346. [These words are drawn from the anonymous review article of A Philosophical Inquiry Concerning the Connexion Betwixt the Doctrines and Miracles of Jesus Christ (London: R. Willock, 1731). Barbeyrac’s words, for he was the author of the review article, are extricated from his argument that while resurrection might (at least for now) be impossible for us to understand, this does not mean that we should regard it as impossible.]
[* ]See Puffendorf on the law of nature and nations, book i. chap. iv. § 9.
[9. ]“Because” is closer to the original and makes more sense.
[* ]See the Law of nature and nations, book i. chap. v. § 5. and the Duties of man and a citizen, book i. chap. i. § 17. [Burlamaqui’s critical comments on Pufendorf are from Barbeyrac’s note 1 to the paragraph in DHC I.1 §17.]
[1. ]The original has “in a word” (“en un mot”).
[1. ]The two first paragraphs rephrase DHC II.1 §§1–2.
[2. ]The original has “Terre” (earth) rather than globe. Burlamaqui returns to this theme in paragraph 5.
[3. ]This paragraph follows Pufendorf in DHC II.1 §9. Note that Burlamaqui does not voice any of the objections that Barbeyrac raised against this Hobbesian analysis of the state of nature in DNG II.2 §2, notes 7–17.
[4. ]This paragraph is a brief summary of DHC II.2 §§1–2. Burlamaqui had explained his views on marriage more extensively in a letter to Thomas Needham. The letter was published in 1761 in Jacob Vernet’s Choix littéraire and was later added as a supplément to the 1784 Lausanne edition of the Principes du droit naturel et politique.
[5. ]While Pufendorf had insisted on tacit consent on the part of the infant, Burlamaqui follows Barbeyrac’s view as expressed in DHC II.3 §2 note 1 and DNG VI.2 §4 notes 1–2.
[1. ]Burlamaqui exploits the ambiguity of the word “droit,” which can mean either upright or right.
[* ]See Puffendorf, Law of nature and nations, book ii. chap. i.
[2. ]Burlamaqui’s account differs from those of Pufendorf and Barbeyrac through its insistence on how all moral obligation stems from the human being’s ineradicable orientation toward felicity or happiness. See the next two footnotes.
[3. ]Burlamaqui’s insistence that a rational being could not be supposed to disregard his own happiness is directed against Barbeyrac’s account of moral obligation. See, for example, “The Judgment of an Anonymous Writer,” in Pufendorf, The Whole Duty of Man, According to the Law of Nature (Indianapolis: Liberty Fund, 2003), p. a293. Burlamaqui mentions this passage in paragraph 12 of the next chapter.
[4. ]A more optimistic approach to self-love was a central theme in eighteenth-century Genevan Calvinism; see, for example, Helena Rosenblatt, Rousseau and Geneva: From the First Discourse to the Social Contract, 1749–1762 (Cambridge: Cambridge University Press, 1997), pp. 11–17, 66–67.
[5. ]“Ce cri de la nature” in the original.
[* ]Jus a jubendo: Jura enim veteres Jusa vel Jussa vocabant. Festus: Jusa, Jura.
[1. ]The original has a “prix” or “price.”
[* ]See the third note of Mons. Barbeyrac on the duties of man and a citizen, book i. chap. i. § 11.
[* ]In the ordinary course of life, we are generally obliged to be determined by probability, for it is not always in our power to attain to a complete evidence. Seneca the philosopher has beautifully established and explained this maxim: “Huic respondebimus, nunquam expectare nos certissimam rerum comprehensionem: quoniam in arduo est veri exploratio: sed eâ ire, qua ducit veri similitudo.Omne hac via procedit officium.Sic serimus, sic navigamus, sic militamus, sic uxores ducimus, sic liberos tollimus; quum omnium horum incertus sit eventus. Ad ea accedimus, de quibus bene sperandum esse credimus. Quis enim polliceatur serenti proventum, naviganti portum, militanti victoriam, marito pudicam uxorem, patri pios liberos? Sequimur quâ ratio, non qua veritas trahit. Exspecta, ut nisi bene cessura non facias, & nisi comperta veritate nihil moveris: relicto omni actu, vita consistit. Dum verisimilia me in hoc aut illud impellant, non verebor beneficium dare ei, quem verisimile erit gratum esse. ” De Benefic. lib. 4. c. 33. [“To this objector we shall answer, that we never should wait for absolute knowledge of the whole case, since the discovery of truth is an arduous task, but should proceed in the direction in which truth appeared to direct us. All our actions proceed in this direction: it is thus that we sow seed, that we sail upon the sea, that we serve in the army, marry, and bring up children. The result of all these actions is uncertain, so we take that course from which we believe that good results may be hoped for. Who can guarantee a harvest to the sower, a harbour to the sailor, victory to the soldier, a modest wife to the husband, dutiful children to the father? We proceed in the way in which reason, not absolute truth, directs us. Wait, do nothing that will not turn out well, form no opinion until you have searched out the truth, and your life will pass in absolute inaction. Since it is only the appearance of truth, not truth itself, which leads me hither or thither, I shall confer benefits upon the man who apparently will be grateful.” Seneca, On Benefits, trans. Aubrey Stewart, Project Gutenberg etext no. 3794 (Oxford, Miss.: Project Gutenberg Literary Archive Foundation, 2003), http://www.gutenberg.org/etext/3794.
[2. ]The original has an unqualified “tout autant.”
[* ]Obligatio a ligando.
[† ]See Dr. Clark on the evidence of natural and revealed religion.
[* ]See the judgment of an anonymous writer, &c. § 15. This is a small work of Mr. Leibnitz, on which Mr. Barbeyrac has made some remarks, and which is inserted in the fifth edition of his translation of the duties of man and a citizen.
[3. ]Compare with DNG I.6 §5 and with DHC I.2 §5 note 2.
[* ]See the second part, chap. vii.
[4. ]The translator adds this “as also,” which obscures Burlamaqui’s meaning, that full moral obligation is the strongest tie, or “the properest motive to make an impression on man.”
[* ]See Puffendorf on the law of nature and nations, book i. chap. i. § 19.
[† ]There seems to be this difference between the terms of power and right; that the first does more expresly import the presence of the said quality, and does but obscurely denote the manner how any one acquired it. Whereas the word right does properly and clearly shew, that the quality was fairly got, and is now fairly possessed. Puffendorf on the law of nature and nations, book i. chap. i. § 20.
[1. ]The original states that “reason” (rather than “man,” as the translation has it) “should acknowledge at the same time,” etc.
[2. ]The original says “which is nothing more here than a restriction,” but the translation omits the “here.” Burlamaqui does, however, recognize other types of obligation as well, although based on this type of internal or primitive obligation.
[3. ]This discussion is drawn from DNG I.1 §7 and Barbeyrac’s notes 4 and 5 to the same.
[* ]Qui in utero est, perinde ac si in rebus humanis esset custoditur, quotiens de commodo ipsius partus, quaeritur. L. 7. de statu homin. lib. 1. tit. 3. Another civilian establishes this rule: Itaque pati quis injuriam, etiamsi non sentiat, potest: facere nemo, nisi qui scit se injuriam facere, etiamsi nesciat cui faciat. L. 3. § 2. D. de injuriis. lib. 47. tit. 10. [“Thus, someone can suffer an insult, even though unaware, but no one can perpetrate one without knowing what he is doing, even though he does not know to whom he is doing it.” Alan Watson, ed., The Digest of Justinian, rev. English language ed. (Philadelphia: University of Pennsylvania Press, 1998), D 47. 10. 3. 2.]
[† ]See Puffendorf on the law of nature and nations, book i. chap. i. § 19. and Grotius on the rights of war and peace, book i. chap. i. § 4, 5, 6, 7. with Barbeyrac’s notes.
[4. ]The original has “à l’égard desquels cela n’est pas permis,” that is, “with respect to that which is not permitted”: Burlamaqui is not here interested in rights that a person is (physically or psychologically) incapable of renouncing. The discussion is based on DNG I.7 §17 note 2.
[5. ]The original states that “le droit naturel,” which refers to the system of natural laws, is the foundation of morality and politics. The ambiguities of the relevant terms do not work quite alike in English and in French.
[* ]See Puffendorf on the law of nature and nations, book i. chap. vi.
[* ]See chap. iii. of this part, § 3.
[† ]See chap. vi. § 3.
[1. ]Burlamaqui’s definition of law differs from Pufendorf ’s to the extent that it makes place for permission as a positive act of the law, a point on which Barbeyrac insisted vigorously in his footnotes. See, for example, DNG I.6 §15 note 2.
[* ]See Grotius on the rights of war and peace, book i. chap. i. § 9. And Puffendorf on the law of nature and nations, book i. chap. vi. § 4. To which we may add Mons. Barbeyrac’s notes.
[* ]See the Law of nature and nations, book i. chap. vi. § 1.
[† ]See above, chap. vi. § 13.
[2. ]Burlamaqui’s reference to the “diversity of sentiments” regarding the foundation of sovereign power alludes to the controversy around Pufendorf ’s definition of a superior in DHC I.2 §5. Leibniz presented a severe criticism of Pufendorf ’s position, which he understood as making God’s right to rule over men into something unexplainable. Burlamaqui read the criticism in the “Judgment of an Anonymous Writer” that Barbeyrac published together with the DHC, and which contained Barbeyrac’s replies to Leibniz’s critique (see especially paragraphs 15 and 19 in Samuel Pufendorf, The Whole Duty of Man, According to the Law of Nature, ed. Ian Hunter and David Saunders [Indianapolis: Liberty Fund, 2003], pp. 267–305). The next chapter provides Burlamaqui’s own account of the various arguments presented by Hobbes (whom both Pufendorf and Leibniz had criticized), Pufendorf, Leibniz, and Barbeyrac.
[* ]See Hobbes de Cive, cap. 15. § 5.
[† ]See Puffendorf on the law of nature and nations, book i. chap. vi. § 11. [This is a view that Pufendorf reports in passing and disapproves of, not one he would himself defend.]
[‡ ]It is found in the second note on section 12. of Puffendorf on the law of nature and nations, book 1. chap. 6. and in the third note on § 5. of the duties of man and a citizen, book 1. chap. 2.
[* ]Chap. vi. and vii.
[1. ]The “inward sense” is a translation for a more prosaic “ce sentiment,” that is, “this sentiment.”
[2. ]Burlamaqui here repeats Pufendorf ’s criticism of Hobbes in DNG I.6 §10.
[* ]See chap. viii. § 6.
[3. ]The refutation of the superiority of nature argument is from DNG I.6 §11.
[* ]See chap. vii. § 3.
[* ]And therefore though that notion of the Epicureans was most senseless and impious, in which they described the Gods, as enjoying their own happiness with the highest peace and tranquillity, far removed from the troublesome care of human business, and neither smiling at the good, nor frowning at the wicked deeds of men; yet they rightly enough inferred, that upon this supposition, all religion, and all fear of divine powers, was vain and useless. Puffendorf, Law of nature and nations, book i. chap. vi. § 11. See Cicero de Nat. Deor. lib. 1. cap. 2.
[* ]It may indeed be said, that the foundation of external obligation is the will of a superior (see above, chap. vi. § xiii.) provided this general proposition be afterwards explained by the particulars into which we have entered. But when some add, that force has nothing to do with the foundation of this obligation, and that it only serves to enable the superior to exert his right (see Barbeyrac’s 1st note on the 9th section of Puffendorf ’s large work, book 1. chap. 6.) this notion does not appear to me to be exact; and methinks that this abstract manner of considering the thing, subverts the very foundation of the obligation here in question. There can be no external obligation without a superior, nor a superior without force, or, which is the same thing, without power: force therefore or power is a necessary part of the foundation of obligation.
[4. ]According to the original, to fix the notions of sovereign and sovereignty is at the same time to fix those of subjection and dependence.
[* ]See the Duties of man and a citizen, book 1. chap. 2. § 4. And the Law of nature and nations, book 1. chap. 6. § 6, 8.
[* ]See section 1.
[† ]See chap. vi. § 10.
[‡ ]See chap. vi. § 13.
[* ]See the second part, chap. vii.
[† ]See the law of nature and nations, book i. chap. vi. § 5, 6, 8, and 9. And the duties of man and a citizen, book i. chap. ii. § 3, 4, 5. [This is a contentious statement: Barbeyrac, as Burlamaqui well knew, presented a quite opposite interpretation of Pufendorf ’s theory of sovereignty and obligation.]
[* ]See chap. viii. § 3.
[1. ]The translation omits “and happiness” from this sentence.
[2. ]For a discussion of Burlamaqui’s emphasis on man’s desire for felicity as the foundation of both natural law and civil legislation, see the introduction.
[* ]See the Law of nature and nations, book i. chap. vi. § 1.
[* ]See the Rights of war and peace, book i. chap. i. § 9.
[† ]See the Law of nature and nations, book i. chap. vi. § 15.
[* ]See chap. viii. § 3.
[3. ]The two first conditions are taken from DHC I.2 §8, the third from footnote 1 to the same.
[* ]See chap. viii. § 4.
[† ]Regula est, juris quidem ignorantiam cuique nocere. Digest. lib. 22. tit. 6. leg. 9. pr.
[4. ]Based on DHC I.2 §6.
[5. ]Thus far based on DHC I.2 §7 or on DNG I.6 §14. The following remark on unspecified punishment is based on Barbeyrac’s footnote 1 to the first-mentioned paragraph.
[* ]Ex quo etiam intelligitur omni legi civili annexam esse poenam, vel explicitè, vel implicitè; nam ubi poena neque scripta, neque exemplo alienjus qui poenas legis jam transgressae dedit, definitur, ibi subintelligitur poenam arbitrariam esse, nimirum ex arbitrio pendere legislatoris. Hobbes de Cive, cap. 14. § 8. [“From hence also we may understand, that every civill Law hath a penalty annexed to it, either explicitly, or implicitly; For where the penalty is not defined, neither by any writing, nor by example of any one who hath suffered the punishment of the transgressed Law there the penalty is understood to be arbitrary, namely, to depend on the will of the Legislator, that is to say, of the supreme Commander.” Thomas Hobbes, De Cive, a Critical Edition, ed. Howard Warrender (Oxford: Clarendon Press, 1987), chap. 14, §8, pp. 172–73.]
[* ]See Locke’s Essay on human understanding, book 2. chap. 28. § 6.
[6. ]A short overview of this debate on the relative merits of punishments and rewards (or on whether man is more sensitive to pleasure or to pain) is provided by Barbeyrac in DNG I.6 §14 note 4.
[† ]See Puffendorf, Law of nature and nations, book i. chap. vi. § 14. with Barbeyrac’s notes.
[7. ]Read “has.” This and the next paragraph are based on DNG I.6 §17 or DHC I.2 §9.
[8. ]Burlamaqui’s discussion is based on DHC I.2 §10 note 2, where Barbeyrac criticizes Pufendorf for omitting to discuss the duration of the laws.
[9. ]The paragraph is based on DNG I.6 §18 or on DHC I.2 §16.
[* ]See the law of nature and nations, book i. chap. vii. and the duties of man and a citizen, book i. chap. ii. § 11. &c.
[1. ]The original distinguishes between the morality (moralité) of actions and morals (morale) as the collection of moral rules, not between morality and moral philosophy.
[* ]Nam quae facta laedunt pietatem, existimationem, verecundiam nostram, & (ut generaliter dixerim ) contra bonos mores fiunt, nec facere nos posse credendum est. L. 15. D. de condit. Institut.
[† ]See chap. x. § 5.
[2. ]Burlamaqui’s comment comes from Barbeyrac’s note 1 in DNG I.7 §7.
[* ]Compare what he says in the Law of nature and nations, book i. chap. vii. § 7. in the beginning, with § 4. of the same chapter.
[3. ]This paragraph is based on DNG I.8 §§1–3 and on DHC I.2 §11 note 3.
[4. ]This paragraph is based on DNG I.8 §4.
[5. ]This paragraph is based on DNG I.7 §5 note 5.
[6. ]This paragraph is based on DHC I.2 §13 note 1 and DNG I.7 §7 note 1.
[* ]See chap. vii. § 8.
[7. ]Grotius makes the distinction in DGP I.1 §8.
[* ]This amounts to the same thing very near, as the Jus rectorium and aequatorium of Grotius. Book i. chap. 1. § 3. num. 3.
[† ]See Buddaeus, Elementa philos. pract. part ii. cap. ii. § 46.
[‡ ]Law of nature and nations, book i. chap. vii. § 8. And the Duties of man and a citizen, book i. chap. ii. § 14. with Barbeyrac’s notes.
[§ ]See Grotius, Rights of war and peace, book i. chap. i. § 8. and Puffendorf, Law of nature and nations, book i. chap. vii. § 9, 10, 11, 12. with Barbeyrac’s notes.
[8. ]Based on DHC I.2 §13 note 1.
[* ]See the Law of nature and nations, book i. chap. viii. § 5. note 1.