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 I

Of the legislative power, and the civil laws which arise from it.

I. We have hitherto explained what2 relates to the nature of civil society in general, of government, and of sovereignty, which is the soul of it. Nothing remains to compleat the plan we laid down, but more par-<153>ticularly to examine the different parts of sovereignty, as well those which directly regard the internal administration of the state, as those which relate to its interests abroad, or to its concerns with foreign powers, which will afford us an opportunity of explaining the principal questions relating to those subjects; and to this purpose we design this and the subsequent part.

II. Among the essential parts of sovereignty, we have given the first rank to the legislative power, that is to say, the right which the sovereign has of giving laws to his subjects, and of directing their actions, or of prescribing the manner in which they ought to regulate their conduct; and it is from hence the civil laws are derived. As this right of the sovereign is, as it were, the essence of sovereignty, order requires that we should begin with the explication of whatever relates to it.

III. We shall not here repeat what we have elsewhere said of the nature of laws in general: But, supposing the principles we have established on that head, we shall only examine the nature and extent of the legislative power in society, and that of the civil laws and decrees of the sovereign from thence derived.

IV. Civil Laws then are all those ordinances by which the sovereign binds his subjects.3 The assemblage or body of those ordinances is what we call the Civil Law. In fine, civil jurisprudence is that science4 or art, by which the civil laws are not only established,<154> but explained in case of obscurity, and are properly applied to human actions.

V. The establishment of civil society ought to be fixed, so as to make a sure and undoubted provision for the happiness and tranquillity of man. For this purpose it was necessary to establish a constant order, and this could only be done by fixed and determinate laws.

VI. We have already observed, that it was necessary to take proper measures to render the laws of nature as effectual as they ought to be, in order to promote the happiness of society; and this is effected by means of the civil laws.5

For, 1°. They serve to make the laws of nature better known.

2°. They give them a new degree of force, and render the observance of them more secure, by means of their sanction, and of the punishments which the sovereign inflicts on those who despise and violate them.

3°. There are several things which the law of nature prescribes only in a general and indeterminate manner; so that the time, the manner, and the application to persons, are left to the prudence and discretion of every individual. It was however necessary, for the order and tranquillity of the state, that all this matter should be regulated; which is done by the civil laws.

4°. They also serve to explain any obscurity that may arise in the maxims of the law of nature.

5°. They qualify or restrain, in various ways, the use of those rights which every man naturally possesses.<155>

6°. Lastly, they determine the forms that are to be observed, and the precautions which ought to be taken, to render the different engagements that people enter into with each other effectual and inviolable; and they ascertain the manner in which a man is to prosecute his rights in the civil court.

VII. In order therefore to form a just idea of the civil laws, we must say, that as civil society is no other than natural society itself, qualified or restrained by the establishment of a sovereign whose business it is to maintain peace and order; in like manner the civil laws are those of nature, perfected in a manner suitable to the state and advantages of society.

VIII. As this is the case, we may very properly distinguish two sorts of civil laws. Some are such with respect to their authority only, and others with regard to their original. To the former class, we refer all the natural laws which serve as rules in civil courts, and which are also confirmed by a new sanction of the sovereign. Such are all laws which determine the crimes that are to be punished by the civil justice; and the obligations upon which an action may commence in the civil court, &c.

As to the civil laws, so called, because of their original, these are arbitrary decrees, which, for their foundation, have only the will of the sovereign, and suppose certain human establishments; or which regulate things relating to the particular advantage of the state, though indifferent in themselves, and undetermined by the law of nature. Such are the laws which prescribe the necessary forms in contracts<156> and testaments, the manner of proceeding in courts of justice, &c. But it must be observed, that all those regulations should tend to the good of the state as well as of individuals, so that they are properly appendages to the law of nature.6

IX. It is of great importance carefully to distinguish in the civil laws, what is natural and essential in them, from what is only adventitious. Those laws of nature, the observance of which is essentially conducive to the peace and tranquillity of mankind, ought certainly to have the force of law in all states; neither is it in the power of the prince to abrogate them. As to the others, which do not so essentially interest the happiness of society, it is not always expedient to give them the force of law, because the controversies about the violation of them would often be very perplexed and intricate, and likewise lay a foundation for an infinite number of litigious suits. Besides, it was proper to give the good and virtuous an opportunity of distinguishing themselves by the practice of those duties, the violation of which incurs no human penalties.

X. What we have said of the nature of civil laws sufficiently shews, that though the legislative be a supreme, yet it is not an arbitrary, power; but, on the contrary, it is limited in several respects.

1°. And as the sovereign holds the legislative power originally of the will of each member of the society, it is evident, that no man can confer on another a right which he has not himself; and consequently the legislative power cannot be extended beyond this<157> limit. The sovereign therefore can neither command nor forbid any other actions than such as are either voluntary or possible.

2°. Besides, the natural laws dispose of human actions antecedently to the civil laws, and men cannot recede from the authority of the former. Therefore, as those primitive laws limit the power of the sovereign, he can determine nothing so as to bind the subject contrary to what they either expressly command or forbid.

XI. But we must be careful not to confound two things entirely distinct, I mean the State of Nature, and the Laws of Nature. The primitive and natural state of man may admit of different changes and modifications, which are left to the disposal of man, and have nothing contrary to his obligations and duties. In this respect, the civil laws may produce a few changes in the natural state, and consequently make some regulations unknown to the law of nature, without containing any thing contrary to that law, which supposes the state of liberty in its full extent, but nevertheless permits mankind to limit and restrain that state, in the manner which appears most to their advantage.

XII. We are however far from being of the opinion of those writers,* who pretend that it is impossible the civil laws should be repugnant to that of nature, because, say they, there is nothing either just or unjust antecedently to the establishment of those laws. What we have above advanced, and the principles<158> we have established in the whole course of this work, sufficiently evince the absurdity of this opinion.7

XIII. It is as ridiculous to assert, that before the establishment of civil laws and society, there was no rule of justice to which mankind were subject, as to pretend that truth and rectitude depend on the will of man, and not on the nature of things. It would have even been impossible for mankind to found societies of any durability, if, antecedently to those societies, there had been neither justice nor injustice, and if they had not, on the contrary, been persuaded that it was just to keep their word, and unjust to break it.

XIV. Such in general is the extent of the legislative power, and the nature of the civil laws, by which that power exerts itself. Hence it follows, that the whole force of civil laws consists in two things, namely, in their Justice and in their Authority.

XV. The authority of the laws consists in the force given them by the person, who, being invested with the legislative power, has a right to enact those laws; and in the Divine Will which commands us to obey him. With regard to the justice of civil laws, it depends on their relation to the good order of society, of which they are the rule, and on the particular advantage of establishing them, according as different conjunctures may require.

XVI. And since the sovereignty, or right of com-<159>manding, is naturally founded on a beneficent Power, it necessarily follows, that the Authority and Justice of laws are two characteristics essential to their nature, in default of which they can produce no real obligation. The power of the sovereign constitutes the authority of his laws, and his beneficence permits him to make none but such as are conformable to equity.

XVII. However certain and incontestable these general principles may be, yet we ought to take care not to abuse them in the application. It is certainly essential to every law that it should be equitable and just; but we must not from thence conclude, that private subjects have a right to refuse obedience to the commands of the sovereign, under a pretence that they do not think them altogether just. For, besides that some allowance is to be made for human infirmity, the opposing the legislative power which constitutes the whole safety of the public, must evidently tend to the subversion of society; and subjects are obliged to suffer the inconveniencies which may arise from some unjust laws, rather than expose the state to ruin by their disobedience.

XVIII. But if the abuse of the legislative power proceeds to excess, and to the subversion of the fundamental principles of the laws of nature, and of the duties which it enjoins, it is certain that, under such circumstances, the subjects are, by the laws of God, not only authorized, but even obliged to refuse obedience to all laws of this kind.<160>

XIX. But this is not sufficient. That the laws may be able to impose a real obligation, and reckoned just and equitable, it is necessary the subjects should have a perfect knowledge of them; now they cannot of themselves know the civil laws, at least those of an arbitrary nature; these are, in some measure, facts of which the people may be ignorant. The sovereign ought therefore to declare his will, and to administer laws and justice, not by arbitrary and hasty decrees, but by mature regulations, duly promulgated.

XX. These principles furnish us with a reflection of great importance to sovereigns. Since the first quality of laws is, that they be known, sovereigns ought to publish them in the clearest manner. In particular, it is absolutely necessary that the laws be written in the language of the country; nay, it is proper that public professors should not use a foreign language in their lectures on jurisprudence. For what can be more repugnant to the principle which directs, that the laws should be perfectly known, than to make use of laws, written in a dead language, which the generality of the people do not understand; and to render the knowledge of those laws attainable only in that language? I cannot help saying, that this is an absurd practice,8 equally contrary to the glory of sovereigns, and to the advantage of subjects.

XXI. If we therefore suppose the civil laws to be accompanied with the conditions above-mentioned, they have certainly the force of obliging the subjects<161> to observe them. Every individual is bound to submit to their regulations, so long as they include nothing contrary to the divine law, whether natural or revealed; and this not only from a dread of the punishments annexed to the violation of them, but also from a principle of conscience, and in consequence of a maxim of natural law, which commands us to obey our lawful sovereign.9

XXII. In order rightly to comprehend this effect of the civil laws, it is to be observed, that the obligation, which they impose, extends not only to external actions, but also to the inward sentiments. The sovereign, by prescribing laws to his subjects, proposes to render them wise and virtuous. If he commands a good action, he is willing it should be done from principle; and when he forbids a crime, he not only prohibits the external action, but also the design or intention.

XXIII. In fact, man being a free agent, is induced to act only in consequence of his judgment, by a determination of his will. As this is the case, the most effectual means, which the sovereign can employ to procure the public happiness and tranquillity, is to work upon the mind, by disposing the hearts of his subjects to wisdom and virtue.

XXIV. Hence it is that public establishments are formed for the education of youth. Academies and professors are appointed for this purpose. The end of these institutions is to inform and instruct man-<162>kind, and to make them early acquainted with the rules of a happy and virtuous life. Thus the sovereign, by means of instruction, has an effectual method of instilling just ideas and notions into the minds of his subjects; and by these means his authority has a very great influence upon the internal actions, the thoughts, and inclinations of those who are subjected to the direction of his laws, so far at least as the nature of the thing will permit.

XXV. We shall close this chapter with the discussion of a question, which naturally presents itself in this place.10

Some ask, whether a subject can innocently execute the unjust commands of a sovereign, or if he ought not rather to refuse absolutely to obey him, even at the hazard of his life? Puffendorf seems to answer this question with a kind of hesitation, but at length he declares for the opinion of Hobbes in the following manner. We must distinguish, he says, whether the sovereign commands us in our own name to do an unjust action, which may be accounted our own; or, whether he orders us to perform it in his name, as instruments in the execution of it, and as an action which he accounts his own. In the latter case, he pretends that we may, without scruple, execute the action ordered by the sovereign, who is then to be considered as the only author of it. Thus, for example, soldiers ought11 to execute the orders of their prince, because they do not act in their own name, but as instruments and in the name of their master.<163> But, on the contrary, it is never lawful to do in our own name, an action that our conscience tells us is unjust or criminal. Thus, for instance, a judge, whatever orders he may have from the prince, ought never to condemn an innocent person, nor a witness depose against the truth.

XXVI. But, in my opinion, this distinction does not remove the difficulty; for in whatever manner we pretend that a subject acts in those cases, whether in his own name, or in that of his prince, his will concurs in some manner or other to the unjust and criminal action, which he executes by order of the sovereign. We must therefore impute either both actions partly to him, or else none at all.

XXVII. The surest way then, is to distinguish between a case where the prince commands a thing evidently unjust, and where the matter is doubtful. As to the former, we must generally, and without any restriction, maintain, that the greatest menaces ought never to induce us, even by the order and in the name of the sovereign, to do a thing which appears to us evidently unjust and criminal; and though we may be very excusable in the sight of man for having been overcome by such a severe trial, yet we shall not be so before the Divine tribunal.

XXVIII. Thus a parliament, for instance, commanded by the prince to register an edict manifestly unjust, ought certainly to refuse it. The same I say<164> of a minister of state, whom a prince would oblige to execute a tyrannical or iniquitous order; of an ambassador whose master gives him instructions contrary to honour and justice; or of an officer, whom the sovereign should command to kill a person whose innocence is as clear as the noon-day. In those cases we should nobly exert our courage, and with all our might resist injustice, even at the peril of our lives. It is better to obey God than men. For, in promising obedience to the sovereign, we could never do it but on condition, that he should not order any thing manifestly contrary to the laws of God, whether natural or revealed. To this purpose there is a beautiful passage in a tragedy written by Sophocles. “I did not believe (says Antigone to Creon king of Thebes) that the edicts of a mortal man, as you are, could be of such force, as to supersede the laws of the gods themselves, laws not written indeed, but certain and immutable; for they are not of yesterday or to-day, but established perpetually and for ever, and no one knows when they began. I ought not therefore, for fear of any man, to expose myself, by violating them, to the punishment of the gods.”*

XXIX. But in cases where the matter is doubtful, the best resolution is certainly to obey. The duty of obedience, being a clear obligation, ought to supersede all doubt.12 Otherwise, if the obligation of the subjects, to comply with the commands of their sovereign, permitted them to suspend their<165> obedience till they were convinced of the justice of his commands; this would manifestly annihilate the authority of the prince, and subvert all order and government. It would be necessary that soldiers, executioners, and other inferior officers of court, should understand politics and the civil law, otherwise they might excuse themselves from their duty of obedience, under the pretence that they are not sufficiently convinced of the justice of the orders given them; and this would render the prince incapable of exercising the functions of government. It is therefore the duty of the subject to obey in those circumstances; and if the action be unjust in itself, it cannot be imputed to him, but the whole blame falls on the sovereign.

XXX. Let us here collect the principal views which the sovereign ought to have in the enacting of laws.

1°. He should pay a regard to those primitive rules of justice which God himself has established, and take care that his laws be perfectly conformable to those of the Deity.

2°. The laws should be of such a nature, as to be easily followed and observed. Laws, too difficult to be put in execution, are apt to shake the authority of the magistrate, or to lay a foundation for insurrections.

3°. No laws ought to be made in regard to useless and unnecessary things.

4°. The laws ought to be such, that the subjects may be inclined to observe them rather of their own accord than through necessity. For this reason, the<166> sovereign should only make such laws as are evidently useful, or at least he should explain and make known to the subjects, the reasons and motives that have induced him to enact them.

5°. He ought not to be easily persuaded to change the established laws. Frequent changes in the laws certainly lessens their authority, as well as that of the sovereign.

6°. The prince ought not to grant dispensations without very good reason; otherwise he weakens the laws, and lays a foundation for jealousies, which are ever prejudicial to the state and to individuals.

7°. Laws should be so contrived as to be assisting to each other, that is to say, some should be preparatory to the observance of others, in order to facilitate their execution. Thus, for example, the sumptuary laws, which prescribe bounds to the expences of the subject, contribute greatly to the execution of those ordinances, which impose taxes and public contributions.

8°. A prince, who would make new laws, ought to be particularly attentive to time and conjunctures.

On this principally depends the success of a new law, and the manner in which it is received.

9°. In fine, the most effectual step a sovereign can take to enforce his laws, is to conform to them himself, and to shew the first example, as we have before observed.<167>

[2. ]Read: “… explained all that relates to the nature of civil society in general, …”

[3. ]Read: “The Civil Laws then are all those laws that the sovereign of the society imposes on his subjects …”

[4. ]The translator adds the idea that jurisprudence is a science: in this connection, Burlamaqui states only that it is an art.

[5. ]Most of Burlamaqui’s observations in this paragraph are from DHC II.12 §§6–8 or from DNG VIII.1 §1 notes 2 and 3.

[6. ]This and the following paragraph are mainly based on DNG VIII.1 §1.

[* ]Hobbes.

[7. ]Pufendorf presents and refutes Hobbes’s view in DNG VIII.1 §§2ff. Burlamaqui uses the reply in §5 of Pufendorf ’s account in the next paragraph.

[8. ]The translator replaces Burlamaqui’s exclamation “it is a vestige of barbarity” (“c’est là un reste de barbarie”) with “this is an absurd practice.”

[9. ]The translator modifies the passage, which is taken directly from Barbeyrac in DNG VIII.1 §1 note 3 in fine.

[10. ]Barbeyrac was strongly opposed to Pufendorf ’s contention that a citizen may innocently perform inhuman actions commanded by his sovereign; Burlamaqui’s presentation of the issue in this paragraph is borrowed from Pufendorf in DNG VIII.1 §6. Burlamaqui, in the three following paragraphs, presents Barbeyrac’s criticisms from note 4 and adds a quote from note 1. Finally, in paragraph 29, Burlamaqui returns to Pufendorf ’s criticized view, which he presents using Barbeyrac’s disapproving characterization from DNG VIII.1 §6 note 4. Yet in Burlamaqui’s text, the passage with which Barbeyrac rejected Pufendorf becomes a sentence with which Burlamaqui endorses Pufendorf ’s position—without responding to the Barbeyracian criticisms that had just been presented.

[11. ]The translator omits “always.”

[* ]Sophocl. Antigon. v. 463, &c.

[12. ]Read: “… ought to prevail in case of doubt” (“… doit l’emporter dans le doute”).