The Online Library of Liberty

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• Introduction
• Note On the Text
• Acknowledgments
• Volume 1: The Principles of Natural Law
• Part I: General Principles of Right.
• Chapter I: Of the Nature of Man Considered With Regard to Right: of the Understanding, and Whatever Is Relative to This Faculty.
• Chapter II: Continuation of the Principles Relative to the Nature of Man. of Will and Liberty.
• Chapter III: That Man Thus Constituted, Is a Creature Capable of Moral Direction, and Accountable For His Actions.
• Chapter IV: Further Inquiry Into What Relates to Human Nature, By Considering the Different States of Man.
• Chapter V: That Man Ought to Square His Conduct By Rule; the Method of Finding Out This Rule; and the Foundations of Right In General.
• Chapter VI: General Rules of Conduct Prescribed By Reason. of the Nature and First Foundations of Obligation.
• Chapter VII: Of Right Considered As a Faculty, and of the Obligation Thereto Corresponding.
• Chapter Viii *: of Law In General.
• Chapter IX: Of the Foundation of Sovereignty, Or the Right of Commanding.
• Chapter X: Of the End of Laws; of Their Characters, Differences, &c.
• Chapter XI: Of the Morality of Human Actions. *
• Part II: Of the Law of Nature.
• Chapter I: In What the Law of Nature Consists, and That There Is Such a Thing. First Considerations Drawn From the Existence of God and His Authority Over Us.
• Chapter II: That God, In Consequence of His Authority Over Us, Has Actually Thought Proper to Prescribe to Us Laws Or Rules of Conduct.
• Chapter III: Of the Means By Which We Discern What Is Just and Unjust, Or What Is Dictated By Natural Law; Namely, 1. Moral Instinct, and 2. Reason.
• Chapter IV: Of the Principles From Whence Reason May Deduce the Law of Nature. *
• Chapter V: That Natural Laws Have Been Sufficiently Notified; of Their Proper Characteristics, the Obligation They Produce, &c.
• Chapter VI: Of the Law of Nations.
• Chapter VII: Whether There Is Any Morality of Actions, Any Obligation Or Duty, Antecedent to the Laws of Nature, and Independent of the Idea of a Legislator? 1
• Chapter VIII: Consequences of the Preceding Chapter: Reflections On the Distinctions of Just, Honest, and Useful.
• Chapter IX: Of the Application of Natural Laws to Human Actions; and First of Conscience. †
• Chapter X: Of the Merit and Demerit of Human Actions; and of Their Imputation Relative to the Laws of Nature. *
• Chapter XI: Application of Those Principles to Different Species of Actions, In Order to Judge In What Manner They Ought to Be Imputed.
• Chapter XII: Of the Authority and Sanction of Natural Laws † and 1. of the Good Or Evil That Naturally and Generally Follows From Virtue Or Vice.
• Chapter XIII: Proofs of the Immortality of the Soul. That There Is a Sanction, Properly So Called, In Respect to Natural Law. 1
• Chapter XIV: That the Proofs We Have Alledged Have Such a Probability and Fitness, As Renders Them Sufficient to Fix Our Belief, and to Determine Our Conduct.
• Volume 2: The Principles of Politic Law
• Part I: Which Treats of the Origin and Nature of Civil Society, of Sovereignty In General, of Its Peculiar Characteristic, Limitations, and Essential Parts.
• Chapter I: Containing a Few General and Preliminary Reflections, Which Serve As an Introduction to This and the Following Parts.
• Chaper II: Of the Real Origin of Civil Societies.
• Chapter III: Of the Right of Congruity Or Fitness With Regard to the Institution of Civil Society, and the Necessity of a Supreme Authority: of Civil Liberty; That It Is Far Preferable 1 to Natural Liberty, and That the State Is of All Human Conditions
• Chapter IV: Of the Essential Constitution of States, and of the Manner In Which They Are Formed.
• Chapter V: Of the Sovereign, Sovereignty, and the Subjects.
• Chapter VI: Of the Immediate Source, and Foundation of Sovereignty.
• Chapter VII: Of the Essential Characters of Sovereignty, Its Modifications, Extent, and Limits.
• Chapter VIII: Of the Parts of Sovereignty, Or of the Different Essential Rights Which It Includes.
• Part II: In Which Are Explained the Different Forms of Government, the Ways of Acquiring Or Losing Sovereignty, and the Reciprocal Duties of Sovereigns and Subjects.
• Chapter I: Of the Various Forms of Government.
• Chapter II: An Essay On This Question, Which Is the Best Form of Government?
• Chapter III: Of the Different Ways of Acquiring Sovereignty.
• Chapter IV: Of the Different Ways of Losing Sovereignty.
• Chapter V: Of the Duties of Subjects In General.
• Chapter VI: Of the Inviolable Rights of Sovereignty, of the Deposing of Sovereigns, of the Abuse of the Supreme Power, and of Tyranny.
• Chapter VIII: Of the Duty 1 of Sovereigns.
• Part III: A More Particular Examination of the Essential Parts of Sovereignty, Or of the Different Rights of the Sovereign, With Respect to the Internal Administration of the State, Such As the Legislative Power, the Supreme Power In Matters of Religion,
• Chapter I: Of the Legislative Power, and the Civil Laws Which Arise From It.
• Chapter II: Of the Right of Judging the Doctrines Taught In the State: of the Care Which the Sovereign Ought to Take to Form the Manners of His Subjects.
• Chapter III: Of the Power of the Sovereign In Matters of Religion.
• Chapter IV: Of the Power of the Sovereign Over the Lives and Fortunes of His Subjects In Criminal Cases.
• Chapter V: Of the Power of Sovereigns Over the Bona Reipublicae, 1 Or the Goods Contained In the Commonwealth.
• Part IV: In Which Are Considered the Different Rights of Sovereignty With Respect to Foreign States; the Right of War, and Every Thing Relating to It; Public Treaties, and the Right of Ambassadors.
• Chapter I: Of War In General, and First of the Right of the Sovereign, In This Respect, Over His Subjects.
• Chapter II: Of the Causes of War.
• Chapter III: Of the Different Kinds of War.
• Chapter IV: Of Those Things Which Ought to Precede War.
• Chapter V: General Rules to Know What Is Allowable In War.
• Chapter VI: Of the Rights Which War Gives Over the Persons of the Enemy, and of Their Extent and Bounds.
• Chapter VII: Of the Rights of War Over the Goods of an Enemy.
• Chapter VIII: Of the Right of Sovereignty Acquired Over the Conquered.
• Chapter IX: Of Public Treaties In General.
• Chapter X: Of Compacts Made With an Enemy.
• Chapter XI: Of Compacts With an Enemy, Which Do Not Put an End to the War.
• Chapter XII: Of Compacts Made, During the War, By Subordinate Powers, As Generals of Armies, Or Other Commanders.
• Chapter XIII: Of Compacts Made With an Enemy By Private Persons.
• Chapter XIV: Of Public Compacts Which Put an End to War.
• Chapter XV: Of the Right of Ambassadors.

CHAPTER VII

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>

[* ]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.