The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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 VIII*

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

[* ]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.